Tuesday, March 31, 2015

New lawsuit challenges convening authority function for some officers

"Four current and former members of the U.S. Air Force and Army filed a federal lawsuit Tuesday seeking to prevent military officers known to be involved in creating sexually hostile environments from being appointed as convening authorities in rape and sexual assault cases." The lawsuit, in which the plaintiffs are represented by Baltimore practitioner Susan Burke, has been filed in the U.S. District Court for the Eastern District of Virginia, in Alexandria. Further details here.

Gambia coup court-martial ends, after closed trial, with convictions and death or life sentences

The Gambian secret court court-martial is over, with six officers and enlisted personnel convicted on various charges and sentenced to death or life imprisonment. Details here.

Monday, March 30, 2015

Yaoundé (Cameroon) military tribunal set to try two journalists and a university professor

Rodrigue Ntongué, a journalist; Feliz Cyrique Ebolé Bola, another journalist; and Baba Wamé, a university professor, stand accused before a military tribunal of having failed to disclose activities which allegedly took place in 2013 in the capital city of Yaoundé and elsewhere, posing a risk to national security.

They are accused to have had in their possession pictures of rebels and other compromising documents received from Aboubakar Sidiki [President of the Mouvement patriotique du salut Camerounais, who stands accused in separate proceedings] which, if published, would foment a rebellion against the state of Cameroon. They were were required to report such occurrences pursuant to Cameroon's Penal Code (sections 74 and 107).

A date for the trial has yet to be set.

See article in Cameroon press

Sunday, March 29, 2015

A hasty plan in Pakistan

The Express Tribune reports that insiders involved in preparing the National Action Plan that included the 21st Amendment bill authorizing military courts to try civilians have started to voice their frustration. They were reportedly not afforded the time needed to think through clearly what needed to be done in the rush for a show of activity in the wake of the Peshawar Army Public School massacre.
The authors of the much-vaunted counterterrorism strategy deem it unfeasible, a document put together in haste rather than after careful deliberation.
 *   *   *
The authors of the NAP say the government did not allow them enough time to devise a comprehensive counterterrorism and counter-insurgency plan to ensure civilian supremacy in the implementation process. 
An expert said his request for allowing at least two weeks for doing proper homework to adopt a suitable counterterrorism approach was also turned down. “The document was prepared in a few hours without meaningful deliberation.” 
When the authors were contacted by the federal government, they were told to put together the action plan in the least possible time. “When we requested some time to think about it, we were told that this was an urgent issue and there was no other option but to do something on a war-footing basis,” said one of the authors.
Global Military Justice Reform continues to check the website of the Supreme Court of Pakistan to see if the Chief Justice has taken any action to send the numerous 21st Amendment constitutional petitions to an expanded bench. So far, nothing doing.

Not Military Justice Reform, but . . .

Royal Courts of Justice, The Strand
At times Global Military Justice Reform reports news that does not relate directly to military justice but is nonetheless likely to be of substantial interest to readers. We recognize this entails mission creep, and promise not to overdo it. That said, readers' attention is invited to this excellent post by Dominic Ruck Keene on the UK Human Rights Blog, reporting on the judgment handed down by Mr. Justice Leggatt in Al-Saadoon v. Secretary of State for Defence [2015] EWHC 715 (Admin. Ct.). The gist of the decision is that the European Convention on Human Rights applies where Iraqi civilians were shot by British soldiers in the course of security operations. "[W]herever a state which is a contracting party to the Convention purports to exercise legal authority or uses physical force, it must do so in a way that does not violate Convention rights." See Mr. Keene's post for some of the potentially serious implications.

Saturday, March 28, 2015

Russian Army to prosecute soldier who is charged with killing 7 Armenian civilians

The Russian Army is going ahead with plans to conduct a murder court-martial at a Russian base in Armenia for a Russian soldier who is charged with killing seven Armenian civilians off the base. There is pushback from Armenian legislators who believe the soldier should be prosecuted by Armenia because the offenses occurred off the base. Details here.
A member of Armenia's National Assembly, Aleksandr Arzumanian, repeated the demand of Armenian authorities that [ValeryPermyakov be handed over and tried in an Armenian court, arguing the crime was committed on Armenian territory not on the grounds of the Russian base.

Egyptian military trials of civilians

The Egyptian military courts continue to try civilians. Click here for a report from the Muslim Brotherhood's website. Excerpt:
On Tuesday – March 24, 2015, a judgment confirming the death penalty was issued by a military court against Abdul-Rahman Syed, a high school student, in serious violation of all international conventions signed by Egypt. For one, Article 10 of the Universal Declaration of Human Rights, signed by Egypt in 1976, states that "every human being on equal footing with others has the right for his/her case to be heard before an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him". 
Further, court-martialing civilians is a violation of Article 97 of the Egyptian Constitution of 2014, which stipulates that "The right to litigation is sacrosanct and guaranteed to all. Citizens should be tried in front of an ordinary court. Special or exceptional courts are prohibited". Given that article, those students' trials are void ab initio, and they have no basis in any legal context. Their rulings also stand null and void from the very beginning. Furthermore, charges filed against the students are retaliatory in nature and not realistic at all in many cases, according to the minutes of the prosecution.

Spanish Civil Guards union pushes back on military jurisdiction

We learn from this piece in La Opinión of a growing controversy over the application of military justice to Spain's gendarmerie, the Guardia Civil. Evidently, the heart of the problem is a controversial 2012 decision of the Supreme Court expanding military jurisdiction:
The Unified Association of Civil Guards (AUGC) has demanded removal of the Military Criminal Code on the ground that it threatens fundamental rights and implies that the policemen are soldiers when carrying out their police duties, and accuses the government of wanting them to be "militarized police" and "not to question the orders of their superiors." The head of the association with the largest representation in the Civil Guard (over 30,000 members), Alberto Moya, at a press conference in Santa Cruz de Tenerife yesterday described the grave situation facing the Guardia Civil's use of the Military Penal Code. Moya was accompanied by AUGC's secretary genera for Tenerife province, Juan Fernández, and the secretary of the Association, José Farfán
Some 30 civil guards are currently pending military prosecution, "a situation 'unprecedented' in the rest of Europe." Moya and Fernández pointed out that civil guards by law were supposed to be subject to the Military Penal Code only in "extraordinary situations" and in time of war, siege or while performing military missions or when police are integrated in military units. [Rough Google translation.]

Friday, March 27, 2015

Self-defeating plea by the Army and the Ministry of Defence in the Supreme Court of India

Cross posting this from my blog.

There is something very unique about the military community in India, and that is, axing their own rights and then celebrating it, realizing quite late as to what has hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal.

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, the Army) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the system therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military?

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers, and it does not seem that most of us have realized it.

Yes, gullible. And sad. 

Military courts in Pakistan: Reuters investigative report

Reuters is running this informative piece about Pakistan's military courts. Excerpt:
Critics say the new rules cede too much ground to the military, which towers over Pakistani politics despite the first ever handover of power from one civilian government to another two years ago. 
A Reuters investigation of legal documents provided by lawyers and families of those tried under existing military courts also highlights concerns over how fair and accountable the new courts will be. 
Some convictions would have been thrown out by civilian courts, according to lawyers involved. Several defendants said they were denied access to legal representation in breach of military law. Some said they were tortured in custody. 
The military can, and sometimes does, dissolve and reprimand courts that reach verdicts they disagree with, then order repeated retrials, according to court documents and former military officials. 
"This happens often. The military is command-oriented, right from arrest until execution," said former military judge Inam ul-Rahiem.

He said he was forced into early retirement for delivering judgments the top brass disliked. He is now a defense lawyer in high-profile military cases.
Pakistan is in the process of adding new military courts to try civilians under the recently-enacted 21st Amendment to the Constitution, the validity of which is the subject of a host of Constitutional Petitions in the Supreme Court. 

Thursday, March 26, 2015

Military justice and police

Who is subject to court-martial jurisdiction? It's supposed to be only military personnel, but there are some places where police or gendarmes also fall under military jurisdiction. Somaliland is one, as witness this article describing the death sentence handed out to a police officer. Another perpetrator in the murder of a prominent businessman received a 10-year term.

Wednesday, March 25, 2015

Thai military courts: might the wind be shifting?

Despite the Thai government's defense of its use of military courts to try civilians for security and lèse majesté cases, this article from the Phuket Gazette suggests, at the very end, that the wind might be shifting:
Deputy Prime Minister Wisanu Krea-ngam said he met yesterday with officers from the Judge Advocate-General's Department to explore the possibility of transferring civilians from military courts to ordinary courts.

Tuesday, March 24, 2015

No need to reform Thai military courts, reform agency official says

The Nation reports from Thailand:
Another NRC [National Reform Council] member, Udom Fuangfoong, who is chairman of a subcommittee on court reform, urged that his subcommittee suggest no reform for military courts. Because these courts merely scrutinised wrongdoing by soldiers, the Constitution Drafting Committee should not apply the same standards of the Courts of Justice and the Administrative Courts with the military courts, he said. [Emphasis added.]
But see http://www.reuters.com/article/2015/03/20/us-thailand-lesemajeste-idUSKBN0MG0E820150320 (67-year-old Thai civilian sentenced to prison by military court for anti-monarchy graffiti).

Veterans' pushback in response to Supreme Court's decision in India

The Supreme Court of India's recent ruling that the various High Courts cannot review decisions of the Armed Force Tribunal (AFT) has sparked consternation among affected interest groups. This article from The Times of India explains:
Several armed forces welfare organizations have approached the central government to amendment the AFT Act to negate the impact of the verdict. According to them, most complaints are against the ministry of defence (MOD) and given that AFTs are an organ of the MOD, there should be a separate body to challenge orders.

Bhimsen Sehgal, chairman of All India Ex-serviceman welfare association, argues that the right of judicial remedy should not be snatched away from defence personnel. He has submitted a representation to the defence minister, requesting him to either have the AFT Act amended, make room for appeal after AFT orders or set aside the AFTs altogether.

Trouble in Botswana

A brigadier in the Botswana Defence Force is at the center of a firestorm of controversy. The High Court has halted the proceedings of a board of inquiry looking into allegations he had an adulterous affair with the wife of a soldier. Some phone record seem to have gone missing. Then there's the question of some spying equipment that went missing. The Monitor reports:
Botswana Defence Force (BDF) Chief of Staff, Peter Magosi who last year thwarted investigations against himself by the army for some missing spying equipment, has his army career hanging by the thread, this time over allegations of having sex with a woman married to a fellow soldier, against the BDF code of conduct. 
Those in the know say with this latest charge on his head, the brigadier’s expulsion from the army is imminent, especially after the woman’s confessions, although Magosi’s lawyers have been arguing that their client was set up. 
Observers say top government officials may have finally closed in on the army general who last year caused security embarrassment when top security secrets were laid bare in the local media when the army general was being investigated for some missing spy equipment. The investigations left government top brass with egg on the face as the names of the then Permanent Secretary to the President, Eric Molale, now Minister of Presidential Affairs, as well as the director general of the Directorate on Security and Intelligence Services (DIS), 
Isaac Kgosi, the Botswana Defence Force (BDF) Commander, Gaolatlhe Galebotswe, and President Ian Khama, were all mentioned with regard to the missing spy equipment. The matter even reached the courts before the BDF negotiated an out of court settlement. 
In the latest episode a private lodged charges against the brigadier after his wife confessed to a night of sex romp with the general at his farm, and now the BDF board was about to hand down their findings on the matter, when the general postponed the process with an urgent court order requesting for additional documents he hopes could set him free.
Stay tuned. 

French civilian brought before Moroccan military court

Despite its recent legislation forbidding the military trial of civilians, Morocco has just charged a French civilian before the Rabat military court. The accused, a teacher at a private institution in Agadir, was arrested after a search by customs and police officials revealed cartridges and equipment for manufacturing munitions. He admitted bringing munitions into the country from France in his personal vehicle.

The military and elections

A federal high court judge in Lagos has ruled, following precedent, that the Nigerian military cannot be used to oversee elections without the approval of the National Assembly, according to this account. Justice Ibrahim Buba wrote:
The armed forces have no role in elections. 
The time has come for us to establish the culture of democratic rule in the country and to start to do the right thing particularly when it has to do with dealing with the electoral process which is one of the pillars of democracy. 
In spite of the behaviour of the political class, we should by all means try to keep armed personnel and military from being a part and parcel of the electoral process. 
The state is obligated to confine the military to their very demanding assignment, especially in this time of insurgencies by keeping them out of elections. The state is also obligated to ensure that citizens exercise their franchise freely and unmolested.
It's not about military justice, but it is about the role of the military in a democratic society. A little topic creep for Global Military Justice Reform, but perhaps readers will find it worth knowing about, given this blog's other coverage of Nigeria.

6 weird laws

We Are the Mighty, "an entertainment and lifestyle media brand for and by the military community featuring authentic premium original and curated content of all genres," has this item listing six weird laws that are unique to the U.S. military. Before you click on the link, can you guess what they are?

Monday, March 23, 2015

Report available on OHCHR expert consultation on administration of justice through military tribunals

On November 24, 2014, the Office of the High Commissioner for Human Rights convened "an expert consultation for an exchange of views on human rights considerations relating to the issues of administration of justice through military tribunals ands the role of the integral judicial system in combating human right violations." The discussion covered (a) the independence, impartiality and competence of the judiciary, including military courts; (b) the right to a fair trial before courts, including military courts, and other procedural protections; (c) personal jurisdiction of military courts; and (d) subject matter jurisdiction of military courts. A summary of the consultation, dated January 29, 2015, is now available as General Assembly document A/HRC/28/32 on the Human Rights Council's website here. The main observations and recommendations are as follows:
73. The importance of the independence, impartiality and competence of the judiciary in military justice was recognized by all experts and participants. In a number of presentations, it was noted that, in some States, issues of command interference and lack of institutional independence were still a source of concern. In States where these issues were present, appropriate legislative and institutional reform should be undertaken.

74. The experts’ presentations showed that, in some States, there were significant gaps in implementing the right to a fair trial. Questions were raised concerning the practice of summary proceedings for lesser offences, which in some States did not allow for the presence of legal counsel or the right of appeal. States were invited to take appropriate measures to ensure that the right to fair trial in military tribunals was in full conformity with the International Covenant on Civil and Political Rights.

75. Concerning personal jurisdiction of military tribunals, the Human Rights Committee had addressed this subject in its general comment No. 32, in which it stated that civilians should not be subject to the jurisdiction of military courts except in exceptional circumstances. The European Court of Human Rights had taken a similar position. It was also noted that international humanitarian law also provided limited circumstances for the trial of civilians in military courts. In some presentations, it was noted that some States tried civilians accompanying the military on overseas deployments, although it often depended on the specific situation.

76. With regard to subject matter jurisdiction, there was a difference of views among the experts. Some argued that military jurisdiction should be set aside in favour of civilian courts in cases where allegations of serious human rights violations were made against military personnel and that military jurisdiction should be limited to military offences, citing recommendations made by the Human Rights Committee and some special procedures. This view was, however, challenged by others at the expert consultation, who argued that, if a military tribunal was independent, impartial and competent, such crimes could be judged.

77. Given the detailed nature of the subject of military justice, and how human rights concerns could arise relative to many aspects of military jurisdiction, States were invited to request technical assistance and advisory services from OHCHR.

1774 Articles of War anniversary

On March 24, 1774, in the 14th year of his reign, George III issued the Articles of War. Click here for a link to God Save the King. (The second of the two recordings is the better.)

Sunday, March 22, 2015

Is a spent round a bullet?

The Spanish Supreme Court has absolved a sergeant and a soldier of a crime against military finances for which they had been convicted and sentenced to four months in prison. The soldiers had attempted to steal seventeen ammunition boxes that they intended to sell.

The Supreme Court absolved them on the ground that the bullets had already been fired. The court concluded that spent rounds cannot be considered war bullets. The fact that they were war bullets had been treated as an aggravating circumstance by the military court that imposed the punishment. More on this case here.

Nicaraguan lieutenant convicted for criticizing police repression

A Nicaraguan military court has convicted a military doctor for questioning police repression against peasants who oppose the construction of a canal.

First Lieutenant Yader Montiel was accused of violating the norms of the armed forces that prohibit deliberation on matters unrelated to his duties. He was convicted for an offense against honor in detriment of the Nicaraguan Army. The trial was conducted behind close doors and the judgment was based on the testimony offered by four citizens who declared that they had heard Montiel criticize the police officers’ actions.

The Centro Nicaragüense de Derechos Humanos (The Nicaraguan Center for Human Rights) considers that Montiel could become the first political prisoner within the ranks of the Nicaraguan Army.

More on this case here.

Military Justice in the 21st century: Professor Fernando Flores' assessment

In a very interesting blog post on the website Alrevésyalderecho, here, Spanish constitutional law professor Fernando Flores reflects on military justice in this day and age.

In light of the Cantera case, Professor Flores questions the adequacy of still having military courts where people in the military judge their peers. He aptly lays out the origins of military justice in Spain and its current configuration: military justice is a specialized jurisdiction because of the area in which it is exercised (martial) and for the specific law it applies. Since 1987, military justice has been integrated into the judicial power of the State, in accordance with the principle of unity of jurisdiction.

Professor Flores admits that there have been substantial changes in military justice, but he contends that we still need to reflect on some significant aspects of military courts. While some argue that military justice, as well as a specific military criminal law, is essential to maintain the discipline and efficacy of the missions attributed to the Army, he argues that disciplinary misdemeanors and crimes can also be addressed in an ordinary criminal code and dealt with efficiently by ordinary judges.

He questions the independence and impartiality of military judges and prosecutors, and concludes that, especially in peacetime, it is doubtful that organizational and functional arguments justify setting up separate military courts. Professor Flores argues that it is possible that the purpose of the arguments in favor of military exceptionalism is actually to maintain a degree of autonomy hardly compatible with the current constitutional order.

Sexual harassment in the Spanish Army: the "Zaida Cantera case"

Capt. Zaida Cantera
Most citizens in Spain hardly ever reflect on military justice. It is a topic foreign to most of them and outside of their daily lives. But on a Sunday night in March 2015, many Spanish citizens went to bed reflecting on the perils of having a military justice system as it is today.

In a widely watched documentary, Spanish reporter Jordi Évole presented the case of Zaida Cantera. She was a captain in the Army and was in Lebanon when Lieutenant Colonel Lezcano-Mújica was sent to her unit.  Shortly after, he started sexually harassing her and continually undermining her work and persona. However, she was afraid of reporting the incidents because “in the army, if you sue someone, the one with more credibility is the one that has a higher rank”. Even after going to court, Col. Lezcano-Mújica, known for his questionable treatment of women, was promoted to Colonel.

Finally, a military court condemned Col. Lezcano-Mújica to two years and ten months in prison for abuse of authority and degrading treatment. The Supreme Court affirmed. After the decision, members of the Army who were close to the Colonel started a campaign against Captain Cantera and allegedly even falsified evidence to accuse her of disloyalty. In the end, she decided to quit the Armed Forces.

Captain Cantera explains in the documentary how the chain of command knew, consented to, and collaborated in the sexual harassment she suffered. Moreover, the institution did not react against the officers who turned a blind eye to the situation Captain Caldera was experiencing.

Cases like this raise many questions about military justice in Spain and other countries with similar systems. The case of Captain Cantera unfortunately is not unique. Women still face degrading treatment in the armed forces and there is a system is in place that grants peer protection to those who commit sexual abuse and other types of harassment. Pundits have raised concerns on the independence and impartiality of military judges when ruling on cases involving high ranking officers and have called for civilian oversight or even the demise of military justice as autonomous from ordinary jurisdiction.

The documentary can be watched here. More on the case can be found here, here, and here.

Table for two?

"If a female officer can’t sit in the mess hall, we’ve gone crazy."

IDF reservist, commenting on the exclusion of women soldiers from a mess hall in which ultra-Orthodox recruits were eating. Quoted here in Haaretz (paywall).

Tech and crime: an example from the Royal Navy

One of the more interesting themes in contemporary military justice concerns the interplay of technology and discipline. Examples include the role of social media, the internet, blogging, and digital photography, each of which has figured in major disciplinary cases (think Private Manning, Abu Ghraib, Israel's "Facebook mutiny," the urinating Marine snipers). A current example is mundane but deserves to be added to the list: the use of a scanner and computer in generating forged signatures has led to the conviction of a Royal Navy senior officer, as explained in this article from The Daily Mail
A captain in the Royal Navy 'deceitfully' forged the signature of an officer who accused him of harassment and bullying in order to 'protect himself' from future complaints. 
Captain Edwin Tritschler, 48, of Yeovilton, Somerset, forged the signature of Lieutenant Commander Christopher Bovill on documents to bring an end to the 'never-ending' list of complaints against him. 
He has now been convicted of two counts of forgery and cleared of a further count by a board of five male captains at at Portsmouth Military Court Centre. 
Tritschler was given a severe reprimand, a full forfeiture of seniority and was fined £5,000 for his 'deliberate' and 'deceitful' actions. 
The court heard he used a scanner and a computer to help forge LC Bovill's signature on three separate documents. 
The forged appraisal forms were created by Tritschler to show the complaint department he had given clear management advice to Bovill.
UK readers: could Capt. Tritschler have been reduced in rank, rather than just seniority?

Presumably Lt. Cdr. Bovill has obtained some form of relief through the complaints system -- or will.

Sex offense cases increase, decrease [check one] in IDF

The number of sex offense indictments in the IDF rose from 26 in 2013 to 37 in 2014, while military police investigations into sex offenses declined from 137 to 125, according to this report in Haaretz:
Most of the indictments issued were against officers who committed acts against their subordinates. A colonel was indicted last year for sexual harassment and inappropriate behavior. According to the indictment, the officer proposed that his female subordinates have sex with him “while utilizing his authority over them as their direct commander.” 
Recent incidents that took place among Givati Brigade soldiers gave rise to questions about how sexual harassment is handled in the IDF. When six brigade soldiers came forward and complained that their platoon commander had sexually harassed them, the brigade command, as well as GOC Southern Command officials, did not report the incident to the Military Police or the IDF Prosecutor. They chose to reassign the commander after a disciplinary, but not criminal, hearing. Only after the incident leaked to the media was a criminal investigation launched.
Thirty-five percent of the 2014 indictments were for invasion of privacy. There were three rape indictments.

Under Israel's 1955 Military Justice Law, the decision to prosecute is made by the Military Advocate General (MAG) Prosecutorial Division rather than by commanders. Click here for the MAG's Criminal Proceedings in the Military Courts web page.

Saturday, March 21, 2015

More IDF investigations into Gaza operation

Maj Gen Danny Efroni, IDF
Military Advocate General
Haaretz has this story about six new investigations arising from last year's IDF Operation Protective Edge in Gaza. They include an attack on a UNRWA school on July 30, 2014. Excerpts:
The military police is already investigating other incidents that occurred during Operation Protective Edge, including the bombardment of the Abu Jama’e family home in Khan Yunis, in which 27 Palestinians were killed; the killing of four children by Israel Air Force fire on a Gaza beach; and the strike on an UNRWA school in Beit Hanun, which killed 15 Palestinians.
Military Advocate General Maj. Gen. Danny Efroni also ordered probes into claims that Palestinian prisoners were beaten in Hiza’a and Rafah. According to reports, four Palestinians were beaten for no reason after they were arrested and while handcuffed and blindfolded.  
Another investigation is to be opened into a complaint by a resident of Dir al-Balah that IDF soldiers looted his home after he fled with his family. The military police will also investigate another claim of looting in the home of a Khan Yunis resident who fled with his family during the fighting.
So far, 19 investigations of the army’s actions during Operation Protective Edge – two of which involved suspicion of looting – have been closed for lack of evidence. However, in another case the MAG determined that indictments should be served, pending a hearing, against Golani Brigade soldiers suspected of looting in the Shujaiyeh neighborhood, in eastern Gaza City. 
The MAG also said yesterday that no criminal wrongdoing was found in eight other cases investigated by a General Staff panel, headed by Maj. Gen. (res.) Yitzhak Eitan.

* * *

Other cases in which it was decided not to launch investigations included an attack on the Abu Eita house at Tel a-Za’atar, in which five civilians were killed, and an attack by a fighter plane on Kafr al-Zuweida, in which five members of one family were killed. In the latter case, it emerged that a technical failure had caused one of the bombs dropped by the aircraft to go off course and hit the family house, instead of a warehouse for weapons about 100 meters away. One of the people killed in that attack was an Islamic Jihad operative.

The military prosecution also decided there was no suspicion of criminal wrongdoing in an IDF artillery strike on a school in Bureij and an UNRWA school in Nuseirat, where, according to the army, there were no Palestinian casualties. The army conceded, though, that an IDF shell hit the school wall during exchanges of fire with armed militants. . . .

Thai military courts and lèse majesté

A Thai military court has sentenced a 67-year-old civilian to 18 months in prison for writing graffiti that insulted the king in toilet stalls at a shopping mall. The junta has announced that all lèse majesté cases would be heard by military courts. The maximum punishment is 15 years. Details here.

Political statements as breach of military decorum in Nicaragua

Yader Montiel, a Nicaraguan Army doctor, has been sentenced to three and a half months in prison for breach of decorum. His offense was to criticize the mistreatment of protesters who objected last December to the planned taking of their land for an interoceanic canal. He was quoted as having said that "the canal will be stained by the blood of our fellow peasants who are demanding their rights." Dr. Montiel pleaded not guilty and said that his statements were made when he was at home on leave. Paraphrasing Fidel Castro's comment about the abortive 1953 Montada Barracks attack, he also said that the court might convict him but society will acquit him.The canal is being built by a Chinese firm.

Editor's footnote: Global Military Justice Reform has had hits from 142 countries. Nicaragua is not one of them.

Friday, March 20, 2015

Hell hath no fury

A word to the wise (gendarme): do not take compromising photos of your girlfriend wearing your police uniform -- then renege on your promise of marriage. In Morocco, she will be prosecuted by civilian authorities for posting the photos online (morals offense, wearing police uniform, failure to produce identity card) and you will be prosecuted by the military courts. Details here.

Colombian transitional justice bill may lead to military impunity

In a post for Open Democracy, Dr. Thomas MacManus and Dr. Alun Gibbs expressed concern that a proposed Colombia Senate Bill to reform the military justice system will "exacerbate the challenge of post-conflict transitional justice in Colombia by implicitly offering a form of immunity to the military for serious breaches of international human rights and criminal law carried out during the armed conflict." Specifically, MacManus and Gibbs fear that the bill could allow military officials implicated in the false positives scandal could have their cases moved to military courts, leading to widespread impunity. (Human Rights Watch expressed similar concern in February.) Moreover, the bill allows institutions of military or police criminal justice to be the first to determine whether an element of a crime exists, thus giving military officials the ability to immunize bad actors from prosecution. Finally, the authors noted that the wording of the statute could expand the jurisdiction of military courts. However, the Colombian Constitutional Court has historically played a strong check against military court overreach. 

Two civilians in Morocco languish while awaiting military trial

Human Rights Watch has requested the release of two civilians who have been detained for over eighteen and thirty-two months, respectively, while awaiting military trial. In January, Morocco published a law ending military trials for civilian defendants. However, Mbarek Daoudi, a Western Sahara activist, and Mamadou Traore, a Malian migrant, remain detained. Human Rights Watch has called for clarification of the judicial status of Daoudi and Traore. 

Shhhh. Secret trial in progress

We see from this Foroyaa column that not everyone is content with Gambia's conduct of a major court-martial behind closed doors:
When the media is barred from any coverage of a matter of public interest, freedom of media is violated. The media is supposed to hold a state accountable to the public. Criminal law is based on the aim to protect the individual, the public and their properties. Law enforcement agents are given the authority to arrest suspects and bring them before the court. 
Since anybody could be falsely accused secret trial could be a means of legitimising impunity. This is why a person should be tried before an independent and impartial magistrate or judge sitting in an open court. 
In this way the public would witness all the proceedings and the media would do coverage for the information of the wider public.

In this way, the larger fair-minded public would be able to decide whether the accused has had a fair hearing or not. 
Foroyaa has been making attempt to cover the court martial but the reporters are told that no media house is allowed to cover it. 
Hence the court martial is out of bounds for even the state media. What then is the public to believe or not to believe? The integrity of the trial is at stake when the public is unaware of who is officially charged and the crimes they are alleged to have committed. The mystery should end if justice is to be seen to be done.

Expanded bench to hear basic questions of jurisdiction over Pakistani military personnel

The Express Tribune reports that the Chief Justice of Pakistan has referred a missing persons case that involves three core questions of jurisdiction of offenses by military personnel to an expanded bench. Excerpt:
The questions put forth are: First, when a person is accused of commission of an offence under the Pakistan Penal Code (PPC) and that person is serving in the Pakistan Army, is it the ordinary criminal (forums) courts, set up under the Criminal Procedure Code (CrPC), which are to try him, or is it for the forums under the Pakistan Army Act to try such an accused? 
Second, is it the ordinary criminal courts (in the present case, the courts in Malakand) that are obliged to accede to the request made by the army authorities, or is it within the discretion of the ordinary courts to determine whether or not to allow the request of army authorities to transfer the case to them? 
Third, if it is for the ordinary forums to exercise discretion in the matter of a request received from the army authorities, what is the basis on which such a request should be considered, and then allowed or declined?
No word yet on whether the Chief Justice will also refer the numerous Constitutional Petitions challenging the use of military courts to try civilians to an expanded bench. According to the court's online case status page, the matter was referred to him on February 24, 2015. It would be surprising if the Malakand missing persons case were referred to an expanded bench but not the 21st Amendment  challenges.

Thursday, March 19, 2015

Poles' position on negligence resulting in casualties

The San Diego Union-Tribune reports that:
A Polish military court convicted and gave suspended prison terms in the retrial of four former and current army officers in the deaths of six Afghan civilians in 2007.
The five-judge panel on Thursday found the four guilty of being lax about their orders when they aimed mortar and machine-gun fire on the village of Nangar Khel, while serving on a NATO-led mission in Afghanistan.
In a practice unfamiliar to U.S. military lawyers:
The four were acquitted in 2011, but the prosecutors appealed, insisting it was a war crime. It was the first time Poland's army held a war crimes trial.

Wednesday, March 18, 2015

MajGen Ary steps down as GITMO CA

There's been an aftershock from the recent military commissions imbroglio over a Defense Department order (rescinded after an appearance of unlawful influence was found by one of the military commission judges) that the judges must remain at Guantánamo until their cases are concluded. The convening authority, retired Marine Corps Major General Vaughn A. Ary, has resigned, according to this story in the Washington Post. Navy General Counsel Paul L. Oostburg Sanz will fill the role on an interim basis.

Open Security explainer on Colombia's military justice legislative conundrum

Open Security has an excellent post by Professors Thomas MacManus and Alun Gibbs laying out with unusual clarity the complicated state of play on impunity and military justice reform in Colombia. While expressing admiration for the constructive role played by the Colombian Constitutional Court in the past, the authors offer a guarded prognosis for the current proposed military justice legislation:
"The institutional history of the court suggests that the justices would seek to safeguard the constitutional integrity of Colombia and its international commitment to human rights and the rule of law. But whether the Congress and the executive would be equally supportive and cooperative in this task still remains a point of concern. Certainly, the proposed Military Justice Bill gives cause for concern about the future political priorities for the government of Colombia’s transitional justice efforts."

Another bar association files constitutional petition against Pakistan's military courts

The Peshawar High Court Bar Association (PHCBA) has joined other national and provincial bar organizations in challenging the constitutionality of the 21st Amendment to the Constitution of Pakistan. The News International reports:
It took the plea that the 21st Amendment abrogated and took away the fundamental rights of the people guaranteed by the Constitution. The PHCBA filed the petition through its president Muhammad Essa Khan.

The petitioner had made the federation through secretary Ministry of Law, Justice and Parliamentary Affairs and the four provinces through their secretary law as respondents in the petition.

The petition noted that establishment of military courts on January 6, 2015 for determination of offenses against the civilians accused of terrorist acts disturbed the legal fraternity across the country.

The PHCBA claimed that formation of military courts compromised the independence and separation of the judiciary from executive.It argued that the 21st Amendment Bill was rushed through both houses of the Parliament without meaningful debate and resultantly a constitutional amendment destructive of the basic structure and salient features of the 1973 constitution was promulgated.

It said the PHCBA cannot ignore the infringement of the rights of the citizens and independence of the judiciary.The petition felt the constitutional amendment that destroyed the basic structure of the Constitution was beyond the powers of the Parliament and, therefore, the 21st Amendment was liable to be struck down by the apex court.

It prayed that the petition may be accepted and the 21st Amendment declared as violation of the Constitution.The Pakistan Bar Council and Supreme Court Bar Association have also challenged the formation of military courts in the apex court.
According to the Supreme Court's website, the challenges to the 21st Amendment await a ruling by the Chief Justice of Pakistan on whether to convene an expanded bench.

The Islamabad High Court Bar Association's president has announced plans to file its own constitutional petition challenging the 21st Amendment.

Reforms in Morocco proceeding slowly

Morocco was in the news last year concerning military justice reform legislation that would bar military trials of civilians. For example:
According to a report presented to the 28th session of the Human Rights Council, the decision of the kingdom to put an end to the prosecution of civilians before military courts is one of the significant advances in the country. 
The bill on military justice adopted by the Moroccan Parliament deeply revises the mandate of the military courts that can no longer try civilians but in the case of war, nor treat general law crimes committed by military or paramilitary personnel, says the report elaborated by Said Benarbia, MENA program director at the International Commission of Jurists.
The new law, however, which was not promulgated until December 10, 2014, does not take effect until July 1, 2015. Moroccan authorities seem not to be applying it to civilians who are already in custody (and have been in custody for a considerable time). Human Rights Watch has documented the problem in a March 17, 2015 letter to the government and March 18, 2015 press release.

Tuesday, March 17, 2015

Uganda military court to hear appeals by 4 senior officers

Four senior officers of the Uganda People's Defense Force, a colonel, two lieutenant colonels, and a major, have lodged appeals from their general court-martial convictions, raising a host of appellate issues. New Vision reports:
Lt. Col. John Kaye was sentenced last month to 10 years for murdering a man who drove his wife to their home in Nalumunye in Wakiso district in 2011. . . . 
Col. Hassan Kimbowa, the former commander of Uganda battle group 11+ was sentenced to 10 months in jail for issuing 5,400 liters of diesel fuel to Somalis (third parties) without permission from the UN coordinator of the African Union Mission in Somalia (AMISOM) in 2013. . . . 
Lt. Col. Benson Olanya, the ex-commander of UPDF’s 343 battalion in Somalia is also challenging a six-month jail term for diverting 720 liters of diesel fuel meant for AMISOM operations in 2013. . . . 
Maj. Alex Kirabo, the former Uganda military contingent transport officer wants the appeal court to overturn a sentence of six months in prison against him over failure to verify the United Nations Support Office for African Union Mission on Somalia (UNISOA) forms used to account for fuel in 2013.

UN report on sexual exploitation and abuse for 2014

Thanks to this report by Somini Sengupta in The New York Times, we are aware of the UN Secretary-General's report on allegations of sexual exploitation and abuse in the UN system for 2014, the full text of which can be found here. Excerpts:
56. In considering the question of enforcement, it should be recalled that acts of sexual exploitation and abuse may also constitute criminal conduct. The Secretary-General is committed to referring credible allegations concerning United Nations officials or personnel with the status of experts on mission to the Member State of the national concerned for criminal prosecution and to support investigations and legal processes.  
57. In his report for 2012 (A/67/766), the Secretary-General reaffirmed the need to bring fresh impetus to the recommendation contained in the 2006 report of the Group of Legal Experts on ensuring the accountability of United Nations personnel in connection with crimes committed in peacekeeping operations (A/60/980), to the effect that an international convention on the subject be adopted. In its resolution 67/88, the General Assembly decided that consideration of the matter of the international convention should be continued at its seventieth session in the framework of a working group of the Sixth Committee. The Secretary-General intends to remain closely engaged with Member States in urgently concluding the long-standing discussion on the adoption of this international convention. 
58. As reiterated by the General Assembly, most recently in its resolution 69/114, the Secretary-General encourages Member States to consider amending their national legislation to permit extra-territorial jurisdiction where necessary, to allow for criminal accountability for sexual exploitation and abuse in the home country of the United Nations personnel concerned. He further urges Member States to amend their administrative rules, regulations or codes governing police and military contingents to clearly recognize all forms of sexual exploitation and abuse as misconduct, where this is not already the case, and to indicate that such acts will attract the harshest available sanctions.  
59. Another important question is when and how to refer a case of alleged criminal conduct by United Nations personnel to the judicial authorities of the host State in which it occurred. A standardized approach for reporting cases would ensure the broadest possible consideration for referral for prosecution and promotegreater individual accountability. The Secretary-General will ensure that guidance is developed for heads of missions in peacekeeping and special political missions on standards and procedures on how instances of misconduct, including sexual exploitation and abuse, that could amount to criminal conduct may be brought to the attention of United Nations Headquarters so that they may be referred to the judicial authorities of host States, in accordance with the existing legal framework. 
60. Finally, the Secretary-General recommends that the troop-and police-contributing countries of personnel accused of sexual exploitation and abuse consider instituting on-site court-martial proceedings, which can promote greater accountability and transparency in cases involving contingent members.
*   *   * 
88. The number of new allegations of sexual exploitation or sexual abuse received in 2014 is lower than that reported in 2013, which is encouraging. Also positive is the fact that the numbers of substantiated allegations showed a similar downward trend. The fact that allegations of sexual abuse are being substantiated in a greater proportion of cases, however, remains cause for grave concern, highlighting the importance not only of vigorous preventive efforts but also of continued efforts in connection with disciplinary sanctions and criminal accountability, in partnership with Member States.
Data on exploitation and abuse allegations (including paternity cases) received by the UN are presented in this report. Other categories of personnel misconduct are not included in this summary.

Monday, March 16, 2015

No military trial for Chinese general

A Chinese general who was slated to go on trial has died before the proceedings could begin. As this article in The Diplomat reports, Xu Caihou had been vice chairman of the Central Military Commission. Excerpts:
The case against Xu would have poised even thornier problems for the dilemma of public access and national security. Military courts tend even more toward secrecy by their very nature. The balance between media coverage and secrecy would have been an interesting decision to make.
Xu’s death, of course, means the end of the legal case against him. As CCTV reported, military prosecutors will drop their case against Xu (although they will “continue to process his illegal assets” – which reportedly included a literal ton of cash as well hundreds of pounds of jade). The investigation into Xu is effectively closed; China will have to wait for a major trial equivalent to Bo [Xilai]’s case to be held within its military courts.
The next military “tiger” may already be in Xi’s sights, however. Xu’s fellow vice chairman on the CMC during the Hu Jintao era, Guo Boxiong, is popularly believed to be the next major target. His son, Guo Zhenggang, has already been announced to be under investigation, leading observers to believe the father will fall next. And of course there’s the still pending case of a smaller “tiger,” Gu Junshan, formerly the deputy head of the PLA’s General Logistics Department.
China may get its military show trial after all.

"But enough of praise": more on the vessel exception

David Larter of Navy Times has written further on the "vessel exception" to the right to refuse mast. It is unfortunate that the Navy has not responded to criticism (from your editor and others) over its unwarranted broad reading of the provision. Perhaps the USS James E. Williams cases will wind up in court and some federal judge will have occasion to drill down.

Inter-American Commission hearing at 2:00 p.m. today

James G. Connell and Walter Ruiz are lead defense counsel for Ammar al Baluchi and Mustafa Al Hawsawi, respectively, in United States v. Khalid Sheikh Mohammad (the 9/11 Military Commission case). The Inter-American Commission on Human Rights granted their petition and they will speak in the course of a thematic hearing today regarding the "Situation of human rights of persons deprived of liberty in the Guantanamo Naval Base." They are scheduled to appear at 2:00 p.m. EST (in Washington, D.C.). The hearing will be streamed live at this link: 


Click on the icon for the "Padilha Vidal Room."

Postscript: Your editor is watching the video right now (2:35 p.m.). The site advises that only 27 people are viewing the live video.

Non-discipline discipline

The Washington Times's Rowan Scarborough has written this story about a U.S. Army Green Beret officer whose Silver Star was revoked:
A group of House lawmakers is moving to strip the armed services’ civilian leaders of the power to revoke combat valor awards in response to Army Secretary John McHugh unilaterally canceling the Silver Star, one of the military’s highest honors, for a former Green Beret officer. 
Mr. McHugh took the action against Maj. Mathew Golsteyn, who braved repeated enemy fire in Afghanistan, even though he has not been charged with any offenses. The Army now is seeking to release him with a less-than-honorable discharge. The officer plans to fight the move, his attorney [Philip Stackhouse] says. 
The secretary acted after the CIA informed the Army that Maj. Golsteyn, during a polygraph exam for a job application, told of killing a terrorist who was making improvised explosive devices (IEDs), the weapon that has killed more Americans in Afghanistan than any other. The Army also removed Maj. Golsteyn from the elite ranks of the Green Berets. 
Rep. Duncan Hunter, the California Republican who is spearheading the restrictive legislation, says he wants to prevent service secretaries from retaliating against personnel by stripping their awards in cases where there is insufficient evidence to charge them for nonjudicial, or court-martial, punishment.

Sunday, March 15, 2015

Thai anti-coup activists ask for trial to be moved to civilian court

Four anti-coup activists added their voices to the chorus opposing the extensive reach of military courts in Thailand. The activists, Arnon Numpa, Sirawith Sertiwat, Punsak Srithep, and Wannakiat Choosuwan, are members of the Resistant Citizen group and were arrested at a protest on February 14. They are charged with violating directives against anti-coup activities and political assembly and are slated to be tried in the military court. The four filed a petition with the Supreme Court asking to be tried in the Criminal Court as civilians. They will also stage a 50 kilometer walk in protest. Nattapach Akhad, whose brother died during the 2010 protests, was at the Supreme Court to offer the activists his support. Akhad told the Bangkok Post, "This government had a direct role in the fatal dispersal of protesters in May 2010 . . . [but] not one military officer has been brought to justice for the blood spilt during the crackdown."

Plea by Femi Falana in Nigerian cases

Femi Falana, SAN
Femi Falana, SAN, has issued the following statement in connection with pending and completed courts-martial in which he is defense counsel:
With the support of the multinational force drawn from neighboring countries, the Nigerian armed forces have carried out successful operations against the satanic Boko Haram sect in the last couple of weeks. In the process, the terrorists have been dislodged from many of the towns and villages in the north east region illegally seized and occupied by them since last year. Although the war on terror has not been fully won, the armed forces and the federal government deserve commendation for the success recorded so far in the task of restoring the territorial integrity of the country. With the recent acquisition of vital weapons for the armed forces by the Federal Government it is undoubtedly clear that the troops have been mobilized and motivated to discharge the constitutional duty of defending Nigeria from the forces of internal insurrection and external aggression. 
In view of the disclosure by the Federal Government that it has just acquired adequate equipment for the armed forces and invited foreign instructors to train the soldiers on the use of the equipment, the officers and soldiers who had consistently demanded for weapons to fight the war have been vindicated. Therefore, the military authorities ought to discontinue the ongoing trial of officers and soldiers and set free the 70 soldiers who were convicted and sentenced to death for mutiny by two courts-martial which sat in Abuja last year. Since the alleged offence of mutiny arose from the legitimate demand of the convicted soldiers for adequate weapons to fight the rag tag army of the Boko Haram sect, the basis of their conviction and sentence can no longer be justified.In the alternative, the army authorities should conclude the case of the convicted soldiers without ant further delay. 
It would be recalled that 12 of the soldiers were convicted in September while the 58 others were convicted in December last year. Since then, the army authorities have neither allowed the convicts any access to their family members and lawyers nor compiled and transmitted the record of proceedings of the courts-martial to the Chief of Army Staff for the purpose of confirming or varying the conviction and death sentences imposed on the soldiers. This has delayed the promulgation of the findings and denied the convicts the opportunity to challenge the verdicts of the courts-martial at the Court of Appeal. As if that is not enough, the army authorities have detained the convicts incommunicado in underground cells in a military guardroom in Apapa, in Lagos State instead of committing them to prison as required by the Armed Forces Act. 
In the light of the foregoing, we call on the Chief of Army Staff as the confirming authority to confirm or vary the conviction and sentences passed on the soldiers by the courts-martial. Owing to the inexplicable delay in the confirmation or variation of the conviction and sentences the soldiers involved have not been able to file their appeal at the Court of Appeal in line with section 183 of the Armed Forces Act (Cap 20), Laws of the Federation of Nigeria, 2004 which stipulates that :”Subject to the provisions of this Part, an appeal shall lie from decisions of a court-martial to the Court of Appeal with the leave of the Court of Appeal: Provided that, an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a court-martial involving sentence of death.”