Sunday, August 31, 2014

The Great Indelible Ink Caper

Major Zaidi Ahmad, RMAF
It must have been a lively day in court for the Royal Malaysian Air Force "indelible ink" case with which Global Military Justice Reform readers are already familiar. Here's the latest report from The Sun Daily:
A Royal Malaysian Air Force (RMAF) investigating officer (IO) agreed making media statements that are not military-related is not an offence under the Armed Forces Council Instruction.
Prosecution witness Lt Col Mohammad Rosli Yaakob agreed with defence counsel Mohamed Hanipa Maidin that RMAF officer Major Zaidi Ahmad did not commit an offence under military regulation since his statements made to the media were "election-related" and about "indelible ink".
"An army officer is only committing an offence if he publishes articles that have any government or military subject.
"[Zaidi's] statements were related to elections; does indelible ink have anything to do with military?" Hanipa asked during cross-examination today at Zaidi's court martial at the RMAF base in Sungai Besi.

SECAF/TJAG emails at issue in U.S. Air Force rape case

Military Judge Lt. Col.
Joshua E. Kastenberg
A U.S. Air Force military judge has ordered the release of emails related to high-level official decision making in a pending rape case. The question is whether unlawful command influence was exerted. If the emails are not produced, the judge says, he will dismiss the case. The prosecution has appealed to the U.S. Air Force Court of Criminal Appeals. For details, click here. Stars and Stripes broke the story.

Quote of the day #2

[T]he [South Korean] military judicial system should be overhauled to reduce cover-up attempts. The problem, [Prof. Han Hong-koo] said, is that the system has the military investigating itself. “South Korea follows the example of the US military judicial system, which has separate military courts,” he explained. “But the US system is one with a lot of overseas bases. South Korea has a prosecution and court system that extends to the neighborhood level, so that kind of thing isn’t really necessary.”

From an interview with The Hankyoreh. Prof. Han teaches at Sungkonghoe University and is the author of The History of the Republic of Korea.

Quote of the day

"The three major steps that we need to take are: First, major judicial reforms that ensure that judgements are made within 60 days. This will involve the formation of special military courts for fast track judgements against terrorists and the corrupt."

Dr. Atta Ur-Rahman, President of the Pakistan Academy of Sciences, writing in The News. (The second and third priorities on his list are economic and electoral reforms.)

Mission accomplished?

The Taiwanese government has disbanded the Military Injustice Petitions Committee it created last year as part of the response to public outrage over the mistreatment of military personnel. Taipei Times has this report:
The Executive Yuan’s Military Injustice Petition Committee was disbanded on Thursday after a year of operation during which 133 cases were looked into and 11 referred to the judiciary for further investigation.
Since its establishment on Aug. 29 last year, the committee received 53 petitions from the public, either submitted in person or reported by telephone, while the committee took the initiative to look into 80 cases, the Executive Yuan said in the statement.
The committee was set up in response to a massive rally on Aug. 4 last year that saw about 200,000 people take to the streets in Taipei demanding truth about the death of army corporal Hung Chung-chiu (洪仲丘), better protection of human rights in the military and the reopening of previous cases of suspected military injustice.
Given that it was no longer receiving as many petitions as it did initially and that military personnel suspected of mistreating soldiers now face prosecution in civilian courts, committee members decided that they had completed their mission, the committee said in the statement.
The committee also said that it would present a report to the Ministry of National Defense about the death or disappearance of soldiers over the past 20 years, based on the cases it had investigated, to help the military identify the causes for such deaths and possible systematic flaws.
Click here for an interim report on the Petitions Committee's work (and here and here for Taiwan's 2013 legislation). The caseload numbers (again) seem not to tally: the current report refers to 133 cases (on application and sua sponte) while the January 2014 interim report referred to 182 applications.

Friday, August 29, 2014

Remember the fuss about Morocco's recent reform legislation?

Rabat Military Court
Now it seems that the reforms may get an early big test, the question being whether the new ban on trying civilians in military courts will apply to cases that are pending on appeal. The question arises in a closely-watched prosecution of 23 Saharawis in the Gdim Izik case. Details here.

Major ruling by South African Supreme Court of Appeal

Supreme Court of Appeal
Yesterday the Supreme Court of Appeal of South Africa handed down its decision in Minister of Defence v. South African National Defence Union, No. 514/2013, [2014] ZASCA 102. The case relates to the suspension of hundreds of military personnel following a demonstration. The soldiers have been paid for years without performing duty. Here is a summary from The Times Live:
Hundreds of soldiers who were suspended for demonstrating near the Union Buildings five years ago could soon be reinstated after the Supreme Court of Appeal yesterday ruled that the SA National Defence Force's attempt to dismiss them was unlawful.
The 664 soldiers have been on special leave since the August 2009 demonstration. 
The court found the suspension process was "unfair because it left the soldiers in doubt as to the charges they faced".

Thursday, August 28, 2014

Stress on military judicial independence in Arab states conference

The Kuwait News Agency [KUNA] carries this report from Amman on a first-of-its-kind regional conference on military justice in Arab countries:
The first Arab military judiciary conference stressed Thursday importance of enshrining the independence of military judiciary principle in laws and constitutions as it is a significant part of the judicial authority.
Concluding their three-day meeting, participants called for introducing objective and procedural reforms to achieve this goal.
They recommended increasing the levels of litigation at military courts in order to be in conjunction with civil courts system and to attain international standards for fair trial.
The conferees also stressed importance of establishing a permanent Arab military judiciary body to boost cooperation among military judiciary institutions in Arab countries.
The Kuwaiti delegation presented during today's session a paper outlining legislative and legal developments of Kuwaiti military judiciary since its establishment, Dr. Khaled Al-Otaibi, head of the Kuwaiti delegation, stated to KUNA.
The Kuwaiti paper also highlighted Kuwaiti military judiciary's significant accomplishments, disciplinary trials and proposed laws, he added.
Delegations from Kuwait, Jordan, Morocco, Egypt, Qatar, Bahrain, the UAE, Oman, Sudan, Saudi Arabia, the Palestinian Authority, Tunisia, Yemen and the Arab League participated in the conference.
If any readers of Global Military Justice Reform can tell us more about this conference, please post a comment. 

Photos and military justice

Those who follow military justice (and many who don't) will of course recall the various courts-martial that flowed from the scandalous treatment of Iraqi prisoners of the United States at Abu Ghraib. Indeed, one of the photos documenting the mistreatment (left) has achieved iconic status. Meanwhile, there has been continuing litigation in federal court in New York City concerning access to the numerous Abu Ghraib images that the Defense Department has refused to release. Now Judge Alvin K. Hellerstein is addressing whether, with the passage of time, the withheld photos can continue to be withheld. The Hill reports:
"Given the passage of time, I have no basis for concluding either that the disclosure of photographs depicting the abuse or mistreatment of prisoners would affect United States military operations at this time, or that it would not," the judge wrote. 
The Defense Department argues the law only requires the secretary to certify that the disclosure of the photos would harm U.S. citizens abroad. But the judge said the text is ambiguous and concluded the law allows for the court to determine if the secretary's decision is correct.  
The judge also found that the Defense Department must evaluate each photo individually, saying that some photos appeared harmless. 
"I have reviewed some of these photographs and I know that many of these photographs are relatively innocuous while others need more serious consideration," the judge wrote.
Parallel issues exist concerning the withholding of photos of Marine snipers urinating on dead Afghanis. International Humanitarian Law mavens are probably also thinking about photography lately, given the ubiquitous images of a parade of captured Ukrainian military personnel through the streets of Donetsk. Radio Free Europe | Radio Liberty's Carl Schreck has this article under the headline "Donetsk POW March: When Is A Parade A War Crime?"

Courts-martial for Japan Self-Defense Forces?

What does a modern democracy do if it decides to start a military justice system pretty much from scratch? Japan may be facing that question. Under the provocative title "Military Courts Unconstitutional," The Japan Times has just run this fascinating editorial about the potential military justice implications of the cabinet's recent decision to permit the country to engage in collective self-defense:
The Abe administration’s July 1 Cabinet decision to allow Japan to take part in collective self-defense will bring major changes to the nature of the Self-Defense Forces, including raising the possibility that the SDF could take military action overseas to assist a country under attack that shares close ties to Japan even if Japan is not under attack. This also raises the question of whether the introduction of a courts-martial system to the SDF would be necessary.
SDF members engaged in such missions may be exposed to life-or-death situations. Some people think that courts martial would be necessary to speedily deal with SDF members who desert their front-line posts or commit other violations in such a situation. But the creation of such an institution would deviate from the provision of the Constitution that bans the establishment of extraordinary tribunals outside of the judiciary.

Wednesday, August 27, 2014

Where should this case be tried?

Pres. Manuel L. Quezon
(1878-1944)
Here's a case from the Philippines: a Navy captain on the verge of retirement is under charges for the killing of a police officer more than 16 years ago. GMA News reports:
The Navy has filed a Motion for Custody for [Vicente Marcelo] Lampas after the Manila court ordered his transfer to the Manila City jail.
[Naval Base Cavite commander Col. Aaron] Arevalo said the motion was based on Executive Order No. 106 that directs military commanders to take custody of subordinate officers or enlisted personnel facing violation of penal laws.
The Manila court will tackle the Navy's motion on Sept. 1.
Executive Order 106 was issued by Pres. Manuel L. Quezon in 1937. 

US and India -- more transparency needed

On Yahoo! News, Amnesty International India's Christine Mehta has called attention to questions of transparency with respect to human rights cases involving U.S. and Indian military forces:
[I]n the case of both India and the US, the lack of media scrutiny of military operations has served to obscure the darker sides of conflict, including the serious abuses against civilians committed by soldiers and ignored by their superiors.
The US military has been engaged in counterinsurgency efforts in Afghanistan in a conflict that has captured world news headlines for 12 years. India is home to some of the world's longest running insurgencies, including the decades-old conflict in Jammu and Kashmir. Some insurgencies in the northeastern states of India have been running for nearly 70 years.
Yet despite differences in context and geography, the Indian and US security establishments have one thing in common: They fail to consistently hold their security forces accountable for serious human rights violations, including unlawful killings, rape and torture. . . .

Supreme Court of India on excessive leniency in officer courts-martial

Justice H.L. Dattu
The New Delhi Nation reports here on a recent decision of the Supreme Court of India:
The Supreme Court on Tuesday came down heavily on the government and Army for handing out “pittance” in punishment to the army officers, who sold their non-service pattern (NSP) weapons in border districts of Rajasthan.
A bench led by Justice H L Dattu questioned why the authorities, which sacked officers for drunken brawls, let off the erring officer very lightly for something as serious as selling weapons in breach of the rules.
The court sought a response from Attorney General Mukul Rohatgi as to why the court martial proceedings be not quashed and officers be re-tried.
It also asked as to why similar inquiry into alleged sale of NSP weapons by Army officers in other eight commands of Army should not initiated.
Further details appear in this article from The Times of India

Army JAG has professional disciplinary authority over retired reserve officer

Judge Richard J. Leon of the U.S. District Court for the District of Columbia has upheld professional sanctions imposed on a retired Army reserve officer who had previously been convicted by a court-martial on charges relating to an extramarital affair with a subordinate attorney. The decision in Spelman v. McHugh can be found here.

Monday, August 25, 2014

Will the Republic of Korea be the next to reform its military justice system?

The Korea Herald has published this article on current demands for (and resistance to) military justice reform in the Republic of Korea:
Criticism is rising over the military’s apparent reluctance to revamp its exclusive legal system amid growing calls to improve professionalism, transparency and fairness in the military’s prosecution and court proceedings.
Following a recent spate of military crimes including hazing, abuse and even sexual harassment, observers pointed out that those cases repeatedly occurred because the military did not properly punish soldiers for their crimes.
Noting that military authorities are trying to keep their opaque legal system, citing security and “unique military circumstances,” they also said that the military judicial system should undergo major reform to keep pace with the open, transparent civilian system. 
“There are a series of issues to tackle with regard to the military judicial system. Military commanders with no legal knowledge could influence court rulings and their arbitrary decision could undermine professionalism and transparency in court proceedings, and so on,” said Kim Sook-kyoung, secretary-general of the activist group Center for Military Human Rights Korea.
“We believe that except for issues concerning what military authorities argue is related to military security, other issues such as beatings, abuse and sexual harassment should be dealt with by the civilian courts, which could rule on those cases in a more objective manner.”

Reform in Bolivia?

Pressure continues to mount for military justice reform in Bolivia. This article highlights some of the issues, including the continued availability of the death penalty, even though it is barred in the civilian courts. The conditions of pretrial confinement are also a subject of controversy: one prisoner confined in a windowless improvised cell was allowed daylight for only half an hour per day.

Sunday, August 24, 2014

HRW's Laetitia Bader reports on military courts, summary executions in Somalia

Al Jazeera has this devastating essay by Human Rights Watch's Laetitia Bader about summary executions in Somalia. It includes a link to the 2003 Principles and Guidelines Relating to the Right to a Fair Trial and Legal Assistance in Africa, which provide in part:
G. RIGHT OF CIVILIANS NOT TO BE TRIED BY MILITARY COURTS:
a) The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.
b) While exercising this function, Military Courts are required to respect fair trial standards enunciated in the African Charter and in these guidelines.
c) Military courts should not in any circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals should not try offences which fall within the jurisdiction of regular courts.

Ugandan spokesman defends military trials of civilians

Lt. Col. Paddy Ankunda, UPDF
The Observer includes this op-ed by Lt. Col. Paddy Ankunda, the spokesman for the Uganda Defence Ministry and the Uganda People's Defence Force. He explains that Ugandan statute and case law permits the trial of civilians by courts-martial:
For quite some time now, legal minds in this country have been debating the issue of whether the military courts martial have the legal mandate to prosecute civilians or not. To some people, taking civilians before a military court may appear draconian especially if they haven’t bothered to find out how these courts world over get the power to try civilians. For starters, let me delve into the law.
According to Sec 119 (1) g and h, of the UPDF Act No 7/2005, sub sec (g) stipulates that every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or (ii) other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.
This was further supported by the ruling in Civil Appeal No 04 of 2012, between Namugerwa Hadija (Appellant) and the [Director of Public Prosecutions] and the Attorney General (respondents). Namugerwa Hadijah in that appeal challenged government on whether or not it was right for her brother Ssali Mohamed to be tried in the Military General Court Martial. The appellant claimed in her application that her brother was a civilian and that therefore the General Court Martial had no jurisdiction over him. The High Court had earlier dismissed her application and her appeal to the Court of Appeal had also been dismissed. Unsatisfied with these court decisions, she further appealed to the Supreme Court of Uganda, the highest court in the land.

Saturday, August 23, 2014

Tribunals' independence at issue in Supreme Court of India case

The Supreme Court of India has listed for review a case addressing the independence of the Armed Forces Tribunal. Global Military Justice Reform contributor Navdeep Singh is counsel on the special leave petition. Other petitions listed by the Court address the independence of the Company Law and Debt Recovery Tribunals. All of these tribunals are located within ministries other than the Ministry of Justice. This report in The Hindustan Times has details on the objectionable aspects of the current arrangements. Among them:
The reply [filed by Major Singh] has also placed on record documents that show that a former defence minister had "approved" appointments on the AFT even after a committee led by an apex-court judge had selected the the members. It also mentions that the defence secretary, against whom all orders of the AFT are to be passed, sits in selection of members, including former high court judges; and also sits on the committee for their reappointment.

No pretrial confinement for South Korean's governor's son

ROK 6th Infantry Division
A Republic of Korea Army court has denied prosecutors' application for an arrest warrant for the son of a provincial governor. The son is accused of hitting a subordinate in the stomach and face on seven occasions and of "sexually harassing another junior soldier, touching his genitals and rubbing his own genitals against the subordinate's hips, Army officials said." Details here.

Why is this case to be tried in a military court?

Ex-Mayor Said Amirov
The Russian Legal Information Agency, citing an article in Kommersant, reports on the referral of a case from Dagestan to the military court system:
Russia's Supreme Court has ruled that the case against Magomed Abdulgalimov aka Kolkhoznik, charged with plotting murders and attempted murders being an accomplice of Said Amirov, once the influential mayor of Makhachkala, will be considered by a military court in accordance with a special procedure, Kommersant newspaper reported Tuesday.
The trial will be held under a special procedure as Abdulgalimov agreed to a plea deal.
Abdulgalimov was charged with arranging the murder of investigator Arsen Gadzhibekov in December 2011 which was ordered by Amirov, according to prosecutors.
Gadzhibekov had worked on a number of high-profile criminal cases, including the 2010 terror attack in Kizlyar that killed 10 and injured 270. . . .
Click here for an earlier post. 

Why was this case tried in a military court?

A military court in Somalia has convicted 13 Mogadishu prison inmates of murdering another inmate. Seven received death sentences; six were sentenced to life imprisonment. They have a month to appeal. Details appear here.

Military penal justice in Canada

On October 15, 2009, Pte Robichaud enrolled into the Canadian Forces (CF). The following week he was sent to the Canadian Forces Leadership and Recruit School to attend a Basic Military Qualifying course. Sadly enough, between October 2009 and January 2010 he was the victim of several documented aggravated assaults by his CF Recruit instructor while undergoing his Basic Military Qualification.

By the end of 2010, due to the aggravated assaults, he required medical treatment to both feet, both ankles, both Achilles tendons, both calves, both knees and his left shoulder. Basically he was left crippled. In addition, as a result of the assaults, threats and abuses from his instructor, he was diagnosed by both a military and a civilian psychiatrist as suffering from Post Traumatic Stress Disorder. On April 2012 he was released from the CF because he could not meet the Universality of Service requirements.

The unjustifiable serious abuses, assaults and threats by way of an incident report were brought to the attention of the chain of command but no prosecution of the offender occurred. From what it appears, the unlawful conduct was not reported to the military police. In May-June 2012 a military police investigation began after Pte Robichaud's lawyer filed a complaint with the Military Police Commission. One year later, in June 2013, the military police concluded its investigation and recommended that charges be laid against against the CF Recruit instructor who is still in the CF.

After more than one year, the Prosecution Service is still "weighing the evidence" to determine whether or not charges should be laid against the instructor. We are nearly 5 years after the abuses and delayed justice does not seem to be much of a concern. Yet justice delayed is certainly justice denied for the victim, the members of the CF, who need to be protected against the kind of brutality suffered by the recruit, and the public. If charges are eventually laid, one should not be surprised if the accused raises a plea in bar of trial based on paragraph 11(b) of the Canadian Charter of Rights and Freedoms which gives an accused the constitutional right to be tried within a reasonable time. Whether the plea is successful or not, additional delay is bound to ensue.

This is another instance of perpetration of serious ordinary criminal law offences kept in house and left unsanctioned. Another good example occurred in the early nineties. Capt. Rainville who had a previous undisclosed record of physical abuses obtained the authorization from his superior to test the security at the Quebec Citadel.  He and some 15 members of his unit, dressed in civilian attire, with hoods over their heads and armed with weapons, simulated a terrorist attack on the Citadelle. They tortured the wardens and a military police officer to obtain the two keys of the ammunition depot. The incident was covered up. When it finally came to light the 3 year limitation period for prosecuting had run.

Many, many years later, under the strong pressure of the victims who had suffered serious physical and psychological abuses, the Attorney General of Quebec laid before a civilian criminal court six charges again Capt. Rainville: abduction, confinement, torture, extortion, assaults with weapons and death threats. The accused was found guilty on all six counts on March 2001. He was sentenced to 20 months' imprisonment to be served within the community with strict conditions, including the requirement of confinement to his residence between 9 p.m. and 6 a.m. for a year, performance of 160 hours of community service within a maximum of 8 months and payment of $4000. to the Center for Assistance to Crime Victims.

In addition he was placed on probation for 2 years, which period was to start to run upon expiry of his term of imprisonment. He was also prohibited from having in his possession a firearm, ammunition or any explosive substance for a period of 10 years. Finally justice was done.

In the public interest, ordinary criminal law offences should be investigated by civilian police and prosecuted before civilian courts. An obligation should be imposed on the military to diligently report crimes to the civilian authorities. Such obligation should be backed up with severe penalties in case of failure to report. Nothing justifies in peacetime that Canadian citizens, be they accompanying civilians or members of the CF, be deprived of the Charter, Criminal Code and procedural guarantees given to all Canadians facing trial before civil courts for the commission of ordinary criminal offences. It would still be open to the CF in appropriate cases to institute disciplinary proceedings before the military tribunal to enforce discipline or to resort to administrative sanctions, including release from the CF.

Who can prosecute this case?

The Desert Sun has this interview about who can prosecute an ex-Marine who has waived extradition from Alaska back to California in a murder case (footnotes added):
[S]everal readers have questioned who actually has jurisdiction in the case because of a couple of complicating factors: [Erin] Corwin's body was found in a mine shaft on federal land owned by the Bureau of Land Management and, if Corwin was killed shortly after her disappearance the crime would have been committed while [Christopher] Lee was still an active duty Marine. He didn't receive his honorable discharge until July 7.
So can Lee be prosecuted by the federal government because 1. the body was found on BLM land or, 2. Because he was active duty at the time of the crime?
On Friday, I spoke with Rebecca Lonergan, a professor at the USC School of Law and a former state and federal criminal prosecutor. She answered both questions and, it turns out, the answers are closely related. . . .
Desert Sun: Could the federal government prosecute this murder case since Erin Corwin's body was found on federal land and Lee was still a Marine at the time of the crime?
Rebecca Lonergan: What you have here is what we call concurrent jurisdiction. It could go stateside, federal or court martial. It's rare, though, that the government would jump in to prosecute. Since (Christopher Lee) had been discharged before the body was found, it's not usually military.*
The military does have the ability to involuntarily reinstate him and court-martial him. They can't court martial him as a civilian now. It's rare, but reinstatement has happened. It's got to be something where the military really wants jurisdiction.**
But they won't, and here's why. The Marines don't prosecute a lot of murders. It's not commonplace. DAs offices, however, do frequently prosecute murders so they are probably better at it. I'm not putting down the JAG (Judge Advocate General) in any way. They're not going to have a jurisdiction battle when it's not something that they commonly do.
In this instance, it's really a domestic issue – it's a love triangle – and this is something district attorneys knows about it. This is not something the military knows about.
As for federal and the Bureau of Land Management, I was a federal prosecutor for several years in the U.S. attorney's office in Los Angeles and it was really rare. It's really about where the expertise lies. Every DA's office prosecutes several murders a month. I'm not in any way putting down any of the other agencies. They'd leave it to them.
When you've got three prosecuting agencies, two will step aside to let the expert go to work.
Editor's footnotes:

* "Usually" in what sense? Unless the discharge had been obtained by fraud? Unless the suspect is a retired regular or a retired reservist receiving hospitalization? Unless the suspect has continued as a reservist?

** Reinstatement? For someone who is merely a veteran, and whose discharge, so far as is known, was not obtained by fraud?

See generally United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Willenbring v. United States (4th Cir. 2009).

Chilean military trial prompts objections

Amnesty International has released this statement criticizing the use of military courts to try police personnel who were involved in the shooting death of a civilian and an alleged cover-up. A junior officer was acquitted of covering up the offense, and the policeman whose shot killed the victim was given a sentence of three years and a day (with probation) for using excessive force. Amnesty faults the military courts for a lack of independence:
From the moment the role of the police was known, the case was subject to the military justice system, which in Chile is responsible for investigating and punishing crimes committed by police and members of the armed forces in military service or acting in connection therewith. In other words, under Chilean law, conduct that could constitute a violation of human rights, is investigated by military courts. This jeopardizes the right to a fair trial and due process, given the lack of independence and impartiality of such courts. This is because they are mainly made ​​up of lay judges and members of the military institution, and a lack of transparency.

Is the Bolivian Military Penal Code constitutional?

Pagina Siete reports here on arguments advanced on behalf of Petty Officer Johnny Félix Gil Leniz that the Bolivian Military Penal Code, which dates to the period of Hugo Banzer's dictatorship, is unconstitutional. In addition, human rights lawyers maintain, parts of the law under which Gil and others have been placed in military pretrial confinement for rebellion, mutiny and sedition have already been repealed by the Constitution Act of 1970. The President of the Supreme Military Court has declined to comment.

Keat decision now available on NZLII.org

Commodore Kevin J. Keat, RNZN
The decision of the New Zealand Court Martial Appeal Court in Keat v. R., previously referred to on Global Military Justice Reform, is now available. You can find it here.

Friday, August 22, 2014

Acquittal in closely-watched CF case

A five-member panel has unanimously acquitted a Canadian Forces warrant officer in a closely-watched sexual assault case. CBC News has the story. Perhaps some of our Canadian readers can comment on what, if anything, this outcome means.

Thursday, August 21, 2014

Military justice books are to books . . .

The Washington Post has reported the death of Robert Sherrill, a journalist and author. In 1970 he wrote "Military Justice is to Justice as Military Music is to Music." (Sometimes incorrectly attributed to Groucho Marx, the phrase was actually the work of Georges Clemenceau.) Edward F. Sherman, later Dean of Tulane Law School, writing in The New York Times, called the Vietnam Era book "an immensely readable critique of the way the military dispenses justice."

Governor Jerry Brown signs military justice reform measure

Gov. Jerry Brown
California governor Jerry Brown today signed into law a bill that reforms state military justice to require that sex offenses be investigated and prosecuted by civilian authorities. According to this article in SFGate:
Sexual assault cases involving active-duty members of the state military are already typically handled in local civilian courts, as the California Military Department isn't equipped to pursue the cases. The new law codifies that practice starting in 2015, and is envisioned as a trend-setter.
"We know that the debate in Washington D.C. and the efforts in the nation's capital have been difficult for those trying to separate the investigation and prosecution of sexual assault cases from the chain of command in the military," said Sen. Alex Padilla (D-Pacoima), who authored the bill.
"California can be the first state in the nation to do so and it is my hope that we set an example not just for other states, but build enough momentum into achieving this at a federal level."

Wednesday, August 20, 2014

Petty Officer Gil is not going quietly

Petty Officer Johnny Félix Gil Leniz is not going quietly. He has been held in preventive detention at Bolivian headquarters while various legal proceedings have been going on. The latest is a complaint filed on his behalf against the president  and two other judges of the military appellate court. Details appear in this article from Pagina Siete. Supporters are on a hunger strike.

Tuesday, August 19, 2014

Keat conviction overturned by New Zealand Court Martial Appeal Court

Commodore Kevin Keat, RNZN
In a stunning development, the Court Martial Appeal Court of New Zealand has overturned the court-martial conviction of a Commodore who was convicted on charges growing out of an adulterous affair with a subordinate. Stuff.co.nz has this account from The Dominion Post:
[I]n a 71-page decision yesterday, Justice Jillian Mallon, on behalf of the appeal court, said [trial judge Chris] Hodson [QC] had failed to properly direct the three-person military panel at Keat's court martial on the issue of his state of mind, and had failed to properly summarise the defence case.
[Commodore Kevin] Keat's convictions were quashed as a result, but the appeal court was unable to say whether or not they would have been proven if the correct process had been followed.

July court-martial results for U.S. Navy

High legal theory and appellate jurisprudence are all well and good, but what is actually happening in courts-martial where the rubber meets the road? The U.S. Navy publishes monthly summaries of its court-martial results. It's of course a challenge to tease out any trends, but the summaries themselves make fascinating reading. Here's the one for July verdicts and sentences.

For want of prosecution, a 2009 assault against a CF recruit goes unpunished.

Recruit training in the Canadian military
On August 13, 2014 the Canadian [French-speaking] media reported on the results of an interview aired the same day with James Robichaud who complained of having been assaulted in October 2009 by one of his instructors during recruit training. The assault  left him with a host of permanent physical injuries to his feet, ankles, Achilles tendons, calf muscles, both knees and left shoulder. Robichaud explained that the assault, which was thoroughly investigated by the military police, has yet to result in concrete action by the Director of Military Prosecutions which has failed to also keep him informed as to the reason(s) for such a long delay.

Robichaud detailed how he was subject to threats and a continuous stream of physical abuse.  He also noted that his several reports of physical and verbal abuse to the leadership cadre of the Recruit School were unheeded.  Discharged on medical grounds in April 2012, a military police investigation was only initiated after his counsel wrote to the Vice Chief of the Defence Staff detailing the abuse and violence suffered by Robichaud and requesting a criminal investigation.  After gathering evidence from approximately 70 witnesses, in the Fall 2013 the Military Police recommended to the Director of Military Prosecutions that criminal charges be laid against the instructor. 

However, for reasons unknown, almost five years after the physical abuse, harassment and torment was inflicted on Robichaud, the Canadian Director Military Prosecution, Office of the Judge Advocate General,  has yet to prefer the charges against the alleged offender so that he may be tried by court martial. 

Monday, August 18, 2014

Military courts (including death penalty) are on the way in Donetsk

Global Military Justice Reform does not have a foreign policy, so it has no position on the current separatist movement in Ukraine. Nonetheless, this Newsweek article, concerning establishment of military courts in the Donetsk area falls within our subject matter. An excerpt from the article:
The government of the breakaway region of Donetsk in Ukraine announced that it will introduce the death penalty for serious crimes, including treason, after the first meeting of the separatist Council of Ministers today.
“A legislative act provides for the death penalty for the gravest crimes,” a press release on the Donetsk People’s Republic’s (DNR) official website read.
The meeting was intended to set the founding stones of the military court justice system of the new republic, which is not recognised by the Ukrainian government.
The Council agreed that military tribunals will be sanctioned to pass the death penalty for offences including treason, espionage, attempts on the lives of the leadership and sabotage, the Moscow Times reported. . . .

Sex assault prevalent in Canadian military; survey indicates 1 female in 13 is sexually assaulted

Statistics Canada surveyed 6,700 full-time CF members between April and August of 2013. The survey was part of the greater Canadian Forces Mental Health Survey, which also looked at mental health and alcohol use. Of the women surveyed, 7.6% of women reported experiencing sexual assault while deployed on operation or in garrison by another member or a civilian defence employee. Also, 15.6% of women surveyed reported experiencing sexual assault or unwanted sexual touching.

In an interview aired by CTV News on August 15, 2014, Professor Michel Drapeau argues that jurisdiction for the investigation and prosecution of sexual crimes in the military should revert back to the jurisdiction of civilian courts. A situation which existed until 1998 when section 70 of the National Defence Act was abruptly amended without any debate in Parliament. All sexual assault crimes in our military should be independently investigated and prosecuted by civilian tribunals.

See video - High number of military sex assault; Statistics Canada data says 1 in 13 women assaulted

Reporter jailed for contempt of Sierra Leone court-martial, then released

Judge Advocate Otto During
A Sierra Leonean reporter has been jailed for contempt after having faulted the presiding officer of a court-martial for conducting a slow trial.  Then she was released by order of a government minister. This report from the Media Foundation for West Africa tells the tale:
The Sierra Leonean Attorney General and Minister of Justice, Frankly Bai Kargbo on August 12, 2014, ordered the release of a female journalist who was serving a seven day sentence for contempt.
Aminata Phidelia Allie, a journalist of privately-owned biweekly Politico newspaper was on August 11, given a seven day sentence by a Court Martial for contempt of court.
The charge of contempt stems from a feature article authored by Allie titled "Court Martial Losing Momentum" and published on August 6. The journalist in the article inferred inter alia that the trial of some 14 soldiers accused of mutiny was being delayed by the court and blamed the Judge Advocate, Otto During for failure to expedite the trial. The publication also alleged that the court lacks sufficient evidence against the accused persons.

Sunday, August 17, 2014

Quote of the day

"[T]he Uniform Code of Military Justice ensures that service members have more protections than civilians in many ways, including rights advisement and the pretrial investigation process."

Lt. Col. Sheri Jones, judge advocate, U.S. Air Force, in the Ft. Leonard Wood Guidon.

How about judges with statutorily-protected terms of office? Jurors selected at random? Jury unanimity? Charging decisions made by lawyers independent of a military chain of command? Potential access to the U.S. Supreme Court in all cases?

Over 100 soldiers to be tried in Nigeria

The Nigerian Army is preparing to court-martial over 100 soldiers for cowardice and disobedience. According to this Premium Times account:
The soldiers were among several hundred troops being deployed from the army's 7th Division in Maiduguri to locations in Damboa and Gwoza for major operations planned to significantly rout the extremist Boko Haram sect from the areas.
"But as we were about to depart, some of the soldiers began to behave funny," a witness said. "They were acting in ways that were delaying the movement. This was a movement that had been timed and we had to arrive locations at a time that should coincide with other operational arrangements. And then these guys were slowing us down."
The witness said at a point, the commander of the troop became fed up with the antics of the "lazy soldiers" and he immediately ordered that they be disarmed, stripped of their uniforms and dropped from the operation.

Brewing controversy in Paraguay

Gen. Jorge Ramirez
A junior officer has filed a complaint with the civilian public prosecutor against Gen. Jorge Ramirez (head of the Paraguayan Armed Forces), the president of the military court and a military judge in connection with allegations of a major embezzlement of government funds from the Logistics Command. The facts remain fuzzy, but according to this report it seems that the case has been taken to civilian authorities out of concern over the independence of the military justice system, possible ex parte contacts, and whether the military judge had protected a colonel said to have been involved in the affair. Gen. Ramirez has stated that the military justice system is independent.

When are words and gestures criminal?

The following case report has been kindly prepared by attorney Francesco Pandolfi. We look forward to further reports on Italian military justice developments from him.

Court of Cassation

Charges: aggravated disobedience, insubordination and insults

The Military Court of Appeal, dismissing appeals by both the accused and the prosecutor, has affirmed the judgment of the Military Court of Rome, under which an Air Force warrant officer second class serving at the Meteorology Center was sentenced to two months imprisonment for aggravated disobedience. He had been acquitted of insubordination with injury.

The accused was found guilty of not having complied with an order to join his superior officer, a Lieutenant Colonel in his room to discuss the granting of a medical chit, but was acquitted of insubordination with injury when he told that officer "Now you have to go ... shut up," accompanied by a hand gesture to leave.

The acquittal was upheld by the Court of Appeal on the ground that the words and facial expression did not violate the victim's moral patrimony.

The Military Prosecutor General appealed under Article 606 para 1(b) of the Code of Criminal Procedure, alleging non-compliance with the criminal law and, in particular, Article 189, para 2 of the Code of Military Criminal Procedure.

According to the government, the accused's behavior, being closely related to the performance of the Lieutenant Colonel's powers and duties, was certainly injurious to the superior's prestige, honor and dignity, and therefore constituted insubordination with verbal and offensive gesture under Article 189 para 2 of the Penal Code. On appeal, the court held that the government's claim was without merit (section 1 Criminal Court of Cassation, decision n° 40813/13).

The military judges at two levels explained that use of the words "Now you have to go ... shut up," using the familiar form of address and accompanied by a hand gesture inviting the superior officer to leave the room, does not constitute an offense but rather is subject to disciplinary action as simple disrespectful behavior.

Avv. Francesco Pandolfi | Military Law      
328 6090 590 skype: francesco.pandolfi8
francesco.pandolfi66@gmail.com

Sentence review by the Armed Forces Tribunal of India

The Chennai Regional Bench of the Armed Forces Tribunal of India has mitigated the sentence in an AWOL case tried in 2006, to take account of mitigating circumstances. The Times of India has this report. The judgment seems not yet to be available on the AFT website. Editor's note: Eight years seems far too long to complete review.

Bullying in Tajikistan

Bullying remains an issue for militaries around the world. Click here for the latest report from Tajikistan. An earlier report observed:
A Tajik conscript has been left with a broken neck and partial paralysis in an attack carried out by another soldier. Experts say the case highlight chronic bullying problems in the military and is likely to encourage future conscripts to evade the call-up.
The attack happened when Private Shahbol Mirzoev sought dental treatment from his border guards unit’s medical service. A medical orderly is accused of carrying out the assault following an altercation.
Tajikistan’s military prosecution has launched an investigation, but the border guards service, which does not come under the defence ministry, is downplaying the incident and the gravity of Mirzoev’s injuries, even though he has spent the last month immobile in hospital.
His future treatment has been costed at 65,000 euro, and his family do not have that kind of money. Nor, apparently, does the border guards service.
Some experts are warning that cases of this kind will deter many young men from answering the obligatory call-up, if they can get away with it.
“Cases like this occur in all military units. In recent years, military prosecutors have been bring cases in an effort to stamp out this kind of activity, but despite effort, assaults continue,”said Khurshed Rahimov, a lawyer from the non-government Office for Civil Liberties.
Rahimov’s solution is to cut the conscription period from two years to one, and impose harsher penalties for bullying in the armed forces.

Saturday, August 16, 2014

Another GOP vote for military justice reform legislation in the next Congress?

State Sen. Joni Ernst
Iowa State Sen. Joni Ernst, the Republican nominee for U.S. Senate who is supported by former GOP Vice Presidential nominee Sarah Palin, has released a statement supporting Sen. Kirsten Gillibrand's Military Justice Improvement Act. Ms. Ernst has served in the military for over 20 years; she is a National Guard lieutenant colonel and currently commands a battalion.
If the recent changes in law, passed last year, do not make significant progress in the next few months in addressing this pressing problem, when I am sworn into the United States Senate as its first female combat veteran, I will work with Senator Gillibrand and other Senate leaders in seeking bi-partisan support for new legislation.  This legislation must ensure that sexual crimes in the military are both independently investigated and prosecuted.
This will not be an easy challenge. I understand many in my own party in Washington will oppose this plan, as will many in the military and Pentagon. However, this should not be a partisan issue, and as a woman in uniform, I know that we must act now.”

Friday, August 15, 2014

Military Justice Review Group reporting dates extended

We just noticed this on the website of the Defense Department's Military Justice Review Group:
The deadline for the MJRG report recommending changes to the UCMJ has been extended to March 25, 2015, and the deadline for the report recommending changes to the MCM has been extended to September, 21, 2015.
If you submitted suggestions to the Review Group, please paste them into a comment under this post, as they are not being posted on the DoD website. Real names, please.

Five months for rape?

A U.S. Air Force fighter pilot has been sentenced to five months' confinement, dismissal, and a reprimand on charges that he raped an enlisted woman and committed adultery. Five months?

Should this case be tried in civilian court (another in the series)?

This news account tells us that an Article 32, UCMJ, investigation is going to be conducted in a case in which a soldier is alleged to have fired a shot at a civilian with no defense connection on a basketball court in an off-base housing area that is patrolled by military police. What do you think: should this case be in the military justice system or should it be handled by the local civilian prosecutor?

Anything but purple

For reasons that have never been satisfactorily explained, the various United States armed forces have been unable to agree on a single set of rules of professional responsibility for their judge advocates. Click here for the Air Force's new regulation on this subject.

Enter the lawyers

UN High Comm'r Navi Pillay
The New York Times reports that outgoing UN High Commissioner for Human Rights Navi Pillay has "called on Israel and on Hamas, the Islamist faction that dominates the Gaza Strip, to account for possible war crimes and crimes against humanity through indiscriminate attacks on civilians." The Israel Defence Forces' legal branch has begun work:
Lt. Col. Eran Shamir-Borer, head of the strategic affairs branch in the international law department at the Military Advocate General’s Corps, said in an interview that a recently established military committee of fact-finding teams, independent of the chain of command and made up largely of reservists, is already investigating certain cases and could have some preliminary findings as early as Friday.
Israel's 1955 Military Justice Law gives charging power to the Military Advocate General, not commanders. One assumes Hamas is also investigating.

Evidentiary quid pro quo

Remember the U.S. Air Force case in which German officials were withholding evidence because the case was potentially capital? It has now been announced that the case will not be referred as capital. German officials are awaiting formal notification. It seems fair to assume the withheld evidence will now be turned over to U.S. authorities.

Charges against Staff Sgt. Sean Oliver include murder, assault, adultery and making a false official statement. Editorial comment: was it really necessary to include the adultery charge?

Thursday, August 14, 2014

Participant in USMC urination incident found dead

The Washington Post has this piece by Dan Lamothe reporting the death of retired Cpl. Robert Richards, one of the Marine snipers who was involved in the Afghanistan urination incident that has spawned considerable controversy in U.S. military justice circles.