Wednesday, September 30, 2015

Supreme court access in India

The battle over whether military cases should have a clear shot at review by the Supreme Court of India, instead of having to identify of an important point of law, continues to rage. Here's the latest, from The Business Standard:
[The father of a deceased Indian Air Force flying officer] goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"

This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money. 
Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter." 
Even so, unless and until the apex court reconsiders its earlier judgment, Mr [Gurbax Singh] Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?" 
"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?" 
"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"

Likelihood of torture by Mexican police/army protects transgender woman from deportation to Mexico from the US

On September 4, 2015, the U.S. Court of Appeals for the Ninth Circuit held that the UN Convention Against Torture (CAT) protected a transgender illegal immigrant from deportation back to Mexico.

Edin Avendano-Hernandez was born male in Mexico and claims to have been raped by his father and brothers. In 2005, he illegally entered the US and resided in Fresno, California, where he began taking female hormones and living openly as a woman.  In 2006, she committed two separate drunk driving offenses, the second of which injured two people and resulted in a felony conviction.  She was sentenced to 364 days in prison and 3 years of probation.  After serving a year in jail, she was deported back to Mexico in 2007.

Back in Mexico, Avendano-Hernandez claims to have been subjected again to harassment from family and neighbors and to have been raped by members of the Mexican police and army in two separate incidents.  She illegally entered the US again in May 2008 and returned to Fresno.  She was arrested in 2011 for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation officer.  She petitioned for sanctuary in the US under the CAT, alleging that deporting her would violate the CAT because she would more likely than not experience torture at the hands of Mexican authorities.  The immigration judge and the Board of Immigration Appeals (BIA) both rejected her arguments on the grounds that she had committed a serious crime and was not likely to face official torture.

As regards the likelihood of renewed torture if she was returned to Mexico, a three-judge panel of the Ninth Circuit Court of Appeals overturned the BIA’s decision that Avendano-Hernandez had failed to provide credible testimony that she was sexually assaulted by police and military officers in uniform.  It is noteworthy that the evidence that she was raped and tortured in Mexico is based entirely on her own claims, which were deemed “credible” by the immigration judge. The Court also found that the BIA’s finding that Mexican laws protect gay and lesbian citizens was flawed because it mistakenly assumed that these laws would benefit Avendano-Hernandez, who faces unique challenges as a transgender woman and was therefore based on its factual confusion as to what constitutes transgender identity.

Military impunity in Indonesia

Military rule in Indonesia formally ended in 1998, but the army remains above the law. If a general orders an entire village massacred, he cannot be tried in civilian courts. The only way he could face justice is if the army itself convenes a military tribunal, or if Parliament establishes a special human rights court — something it has never done fairly and effectively.

Filmmaker Joshua Oppenheimer, writing here in The New York Times

Tuesday, September 29, 2015

Jurisdictional issue under review in Thailand

According to this report in The Nation, the Court of Justice will decide whether a former Thai minister is to be tried in a military or a civilian court:
Former education minister Chaturon Chaisang Monday thanked the martial court for allowing his case to be reviewed by a committee of the Court of Justice as to which court should try him. 
Chaturon has been charged in the martial court for having violated a summoning order of the National Council for Peace and Order. 
Chaturon argued that he should be tried by the Criminal Court, not the martial court. 
Following his argument, the military court agreed to have a committee of the Court of Justice to review Chaturon's case to decide whether it should be tried in the military court or Criminal Court. 
The proceeding of the case in the martial court is suspected pending a decision by the committee.

Due process and U.S. military personnel in Afghanistan

Lawfare has a thought-provoking post by Matthew Weybrecht, a former U.S. Army officer now studying at Harvard Law School, concerning the case of Army personnel punished for allegedly assaulting a local police commander for raping a young boy and beating up the boy's mother. He writes, in part:
Many rationalize the soldiers’ actions by noting that the Afghan judicial system may not always administer justice. This is hardly a new or unique problem. Most U.S. military personnel who have spent any time in Iraq or Afghanistan can recall countless instances of detaining individuals who were accused of exploding car bombs in markets, killing U.S. troops, or conducting horrific sectarian killings. Almost all eventually had to be turned over to local authorities, where many were subsequently released either for lack of evidence or for political reasons. . . .

As Sherlock Holmes would say . . .

As Sherlock Holmes would say, "the game's afoot" again in Pakistan, this time concerning judicial review of convictions by the country's 21st Amendment military courts. Consider this, from the Express Tribune:
The apex court has sought the Attorney General of Pakistan’s help to decide whether or not superior courts can hear the appeals of serving military officers against court martial.
On Tuesday, the Supreme Court issued a notice to the AGP to decide the legal question after hearing the appeal of Major Ilyas against his court martial proceedings.
The three-judge bench, headed by Justice Mian Saqib Nisar, will examine whether it can interfere in these matters or not.
Nine judges have already declared the court can interfere in these matters on the basis of coram non judice (not before a judge), being without jurisdiction or under mala fide intentions.
The court has issued the notice to the AGP to determine these aspects.
In a separate case, a three-judge bench headed by SC Chief Justice Anwar Zaheer Jamali rejected the appeal of a military official against his death sentence awarded by a military court.
The convict had murdered his five army colleagues. The military court had awarded him death sentence and the high court did not entertain his application citing lack of jurisdiction.

Bombing error and judicial review

The decision not to pursue criminal charges following a disastrous bombing error has been taken to the Turkish Constitutional Court. Some details appear in this story, including a suggestion of retaliation against an Air Force court judge who dissented from the 2-1 decision not too press charges:
The report noted that Col. Oğuz Pürtaş, the military judge who supported the appeal, argued in his opinion that a court rather than a prosecutor's office was the correct place to rule whether or not the incident took place due to an “unavoidable mistake.” 
“The colonel with the dissenting opinion was [later] transferred to another post,” Cumhuriyet said. 
According to the report, Pürtaş argued in his opinion that the decision not to prosecute would, in the long run, damage the state and belief in justice in society. 
Dissenting judge appointed as prosecutor
Last summer, one year after the military court's decision, Pürtaş was appointed as a prosecutor at the Supreme Military Administrative Court and this was perceived as a sort of punishment, Cumhuriyet said. The two other military judges who ruled for the rejection of the appeal said in the verdict that the military officers who had ordered the air strikes had committed an “unavoidable mistake” when they mistakenly thought the villagers were terrorists. 
The military court reportedly said in its verdict that the officials committed the mistake because ahead of the bombing, the villagers continued to move toward the Turkish border despite artillery fire. The verdict also said that the villagers were moving in three separate groups spread out over one kilometer, creating the impression that it was an organized terrorist group.

Supreme Administrative Court of Colombia condemns the Army for "inhumane" treatment of soldiers

The Third Section of the Supreme Administrative Court of Colombia (Consejo de Estado) ordered the Colombian Army to pay indemnification for the damages caused to a soldier in a battalion who was the object of physical and psychological mistreatment on the part of his superiors and his colleagues.

The court emphasized the inhuman and degrading treatment against one of the members of the armed forces affected the activities which the armed forces provide for the nation.

In this particular case the Supreme Administrative Court considered that his superiors had damaged him for life, having subjected him to ridicule and causing him to leave the institution with psychological problems.

The young man in question had a psychological profile that was known to the military health authorities as a result of the death of a brother in combat.  His superiors, however, ignored that fact and gave him a command with the purpose of degrading his capacity before the other members of his command.

The Supreme Administrative Court ordered a colonel, a major and a captain of the Army to apologize publicly to the soldier his family and the media for the mistreatment he suffered.

More details on withdrawal of 50 SANDF troops from MONUSCO

Defence Web has provided additional information on the misconduct that led to the withdrawal of 50 members of the South African MINUSCO contingent: the soldiers had gone AWOL in order to visit a brothel in Goma, DRC. Excerpts:
The soldiers are all from 121 SA Infantry Battalion at Mtubatuba in KwaZulu-Natal. A South African National Defence Force (SANDF) statement said: “The members were found to have acted in a manner that compromised the security of SANDF members deployed in the area by breaching or violating the SANDF Military Discipline Supplementary Measures Act and Code of Conduct as well as the UN Code of Conduct for Peacekeepers. They will face the military judicial system as soon as all necessary administration processes have been finalised”.
* * * 
Gauteng Afrikaans daily Beeld reports it will cost the SANDF about R1.5 million to bring the troublemakers home. An aircraft has to be tasked to collect them at Goma and there is no budget allocation for the unplanned expense.

Another problem facing the SANDF for its commitment to the MONUSCO and FIB [Force Intervention Brigade] deployment is that it has to replace soldiers removed. The SA Army does currently not have 50 soldiers on strength whose medical classification meets the required standard, the paper said.

Monday, September 28, 2015

Philippine corporal tried in civilian court for shooting death of sergeant

The Cebu Sun Star has this report on a civilian prosecution for the shooting death of an NCO:
REGIONAL Trial Court Judge Estela Alma Singco yesterday convicted a military officer for shooting to death his senior official in 2009. 
Singco, of the RTC Branch 12, found Corporal Jesusito Bayang guilty of homicide for shooting Sgt. Romeo Mendez last Sept. 4, 2009. The judge sentenced Bayang to spend six to 12 years in jail. 
“In this case, accused (Bayang) failed to sufficiently prove his claim of irresistible force or uncontrolled fear for his life,” read Singco’s 14-page judgment. 
Defense lawyer Rameses Villagonzalo said they will file a motion for reconsideration. 
Bayang shot dead Mendez inside the mess hall of the 7th Finance Service Unit at Camp Lapu-Lapu, headquarters of Central Command (Centcom) in Barangay Apas, Cebu City. 
Bayang was charged with murder, but the Office of the Cebu City Prosecutor later downgraded the case to homicide.

Richard R. Baxter Military Writing Prize


CALL FOR PAPERS
FOR THE 2016 LIEBER SOCIETY 
RICHARD R. BAXTER MILITARY WRITING PRIZE

Since 2007, the Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, has annually recognized a paper that significantly enhances the understanding and implementation of the law of war has. The Richard R. Baxter Military Prize is awarded for exceptional writing in English by an active member of the regular or reserve armed forces, regardless of nationality.
The Prize. The winner will receive a certificate confirming that he or she has won the 2016 Lieber Society Richard R. Baxter Military Prize and a one-year membership in the American Society of International Law (ASIL). The judges may also select additional persons to receive Lieber Society Richard R. Baxter Military Prize Certificates of Merit.
Request for Assistance. Any person receiving this Call for Papers who is aware of exceptional writing that meets the qualifications of this competition is requested to nominate the paper directly to the Lieber Society and forward this Call to the author of that paper.
Definition of the Law of War. For this competition, the Law of War is that part of international law that regulates the conduct of armed hostilities. Papers may address any aspect of the law of war, including, but not limited to the use of force in international law; the conduct of hostilities during international and non-international armed conflicts; protected persons and protected objects; the law of weapons; rules of engagement; treatment of detainees, to include interrogation procedures; and occupation law. Papers addressing practical problems confronting members of armed forces are preferred.
Qualifications for entering the competition. Persons submitting papers do not have to be ASIL members. They may be citizens of any nation, but they must be an active member of a nation’s regular or reserve armed forces.
Papers that may be entered. Papers submitted in this competition must be in English (or translated into English if written in another language). Paper length may not exceed 35 pages if written with single line spacing or 70 pages if written with double line spacing, including footnotes. Paper size must be either 8.5 x 11 or A4, with all margins at least one inch and at least 12 point font. Both papers that have been published and papers that have not been published will be considered for the Baxter Prize.
Required Contact Data. All submissions must contain the following data on the author of the paper: full name and military rank or rating, current postal and e-mail addresses, and current telephone number. If a person other than the author is making the submission, it must also contain the above data for the person submitting the paper.
Deadline for submitting papers. Papers for the 2016 competition must be received no later than Thursday, December 31, 2015.
Use of email to submit papers. Electronic submissions in Adobe format (.pdf) or Microsoft Word (.doc) are preferred. They should be sent to Lieber Military Prize Coordinator Chris Jenks at Cjenks@smu.edu
Use of the postal system to submit papers. Submissions by postal mail should be sent to:
Chris Jenks
SMU Dedman School of Law PO Box 750116
Dallas Texas
75275-0116

Acknowledgement of submissions. All submissions will be acknowledged by e-mail.
Announcement of winner. The winner and any persons receiving Certificates of Merit will be announced at the Annual Meeting of the American Society of International Law in Washington, DC, March 30- April 2, 2016. 

Andersonville trial encore

Capt. Henry Wirz
The U.S. Court of Federal Claims is hosting a reenactment of the 1865 trial of Captain Henry Wirz, CSA, who was in charge of the notorious Confederate prison at Andersonville. The event will take place on October 16, 2015, at 3:30 in Courtroom 201 of the National Courts Building. RSVP to Megan_Donley@ao.uscourts.gov by Oct. 2. The play will be performed by the Ohio Courthouse Players and is sponsored by the court's Attorney Admissions Local Fund.


Aw Heck!

LAS VEGAS REVIEW-JOURNAL reports:
Rep. Joe Heck unquestionably has done a lot to serve his country.
Before winning election to the Nevada state Senate in 2004, or to Congress in 2010, or being commissioned in the U.S. Army Reserve in 1991, he graduated from osteopathic medical school. In 2007, he deployed to Iraq as commander of a medical company.
But recently, the question has been raised in the Review-Journal about whether Heck's dual roles as congressman (and perhaps U.S. senator, an office he will seek next year) and as a reserve Army brigadier general could pose a problem.
The U.S. Constitution says (in Article I, Section 6) "no person holding any office under the United States, shall be a member of either House during his continuance in office." That separation-of-powers clause ensures the people making the laws are never the same as the ones carrying them out. But members of the reserve are exempt. (Several have served in Congress.)
But there's another factor, one that could be serious and significant.
So, what is a young, E-4 corporal serving in the Reserve 3rd Medical Command in Atlanta — where Heck is deputy commanding general — to think? What are the sergeants and young officers to think, watching one of their top officers claim the president lacks fealty to the U.S. Constitution?
To say that might be deleterious to good order and discipline is something of an understatement. As a general officer, Heck occupies a position of respect among his troops, and his opinion is more than a trifling matter.
But as a congressman and a senator, Heck is obligated to stand up for his constituents and for the ideas upon which he built his campaign. To say he should hold his tongue in order to be faithful to his military job, even when he's not actually doing it, is tantamount to saying he can't hold both jobs at once.
The answer IMHO is simple--it's called a resignation for the good of the Service.  Each of us may be challenged at some time to consider a conflict of interest in our work.  I suppose as lawyers we are more frequently called upon to consider the actual or appearance of a conflict of interest.  When that happens we usually withdraw from the conflict.  Meanwhile, in the relevant worth the read column see David J. Shaw, An Officer and a Congressman: TheUnconstitutionality of Congressmen in the ArmedForces Reserve.  97 GEO. L. J. 1739 (2009).

Saturday, September 26, 2015

Changeout in SA troop contingent in DRC

The South African National Defence Force is going to replace 50 members of its troop contingent in the Democratic Republic of Congo. eNCA has the story here:
South African National Defence says troops will be sent [to] Goma, Democratic Republic of Congo to replace the 50 disgraced members accused of leaving their base without permission and breaking curfew. 
SANDF Spokesperson Olani Mabanga said, "It's tendency or elements of ill-discipline which the SANDF will not tolerate hence the members are to be withdrawn immediately, so that they can send a message to those who may think it is ok to break the law, break the rules and get away with it. We are very concerned." 
"They are also endangering the lives of those in the base because we don't know where you are, who are you with and what are you doing," said Mabanga. 
All 50 soldiers were stationed at United Nations camps in the conflict-ridden area. 
When they arrive back in South Africa, the soldiers will face disciplinary action which will decide their fate within the defence force.

U.S. military assistance can lead to courts-martial? Worth the read

TeleSUR has an interesting report on Mexico's efforts against the drug cartels and impliedly the U.S. military assistance program.  The report leads with:
For the teacher-trainee students of the Escuela Normal Raúl Isidro Burgos in Ayotzinapa, south-western Mexico, Oct. 2 is a fixture on their protest calendar. The date commemorates the night in 1968 when police and paramilitaries opened fire on pro-democracy protesters on Mexico City’s Tlatelolco Square, killing anywhere between 30 and 200 people.
Last year, around 100 Ayotzinapa students commandeered three buses on the Tixtla-Iguala highway, intending to drive to Mexico City for the Tlatelolco commemoration. Locals usually tolerate the practice, since the buses are usually returned with full gas-tanks.
Later we read:
In May of this year, federal police and army units allegedly massacred 42 members of the Cartel Jalisco Nueva Generación in Michoacán. Two months later, the 97th Army Battalion kidnapped and executed seven day-laborers in Zacatecas.
Then:
Since 2008, when former U.S. and Mexican presidents George W. Bush and Felipe Calderón signed the bilateral crime-fighting strategy known as the Mérida Initiative, Mexico has received $2.3 billion in aid from its northern neighbor.
Then:
Between 2006 and 2013, Mexico’s National Commission on Human Rights registered 8,150 complaints against the Mexican armed forces alone — only 38 of which ended in sentences for military personnel, according to 2013 report by a human rights organization.  [court-martial][court-martial]
The piece concludes:
Mexico’s failure to hold its own security forces to account is costing lives — but so, too, is the failure of the U.S. policy-makers to ask quite where Mérida Initiative money is going.
Despite reports from Mexico’s National Secretary on Security that 10,000 people died violently in the first half of 2015, President Obama has requested a further $116 million in spending from Congress, for handover in 2016.  
The bill for the Mérida Initiative —in terms of U.S. spending and lost human lives— looks set to rise, with no upward limit in sight.

Al Bahlul case to be heard en banc

Yesterday the U.S. Court of Appeals for the District of Columbia Circuit granted rehearing en banc of the panel decision in the long-running military commission case of Al Bahlul v. United States.  Here is the part of the court's order that specifies additional issues to be briefed:
(1) The standard of appellate review of Bahlul’s conviction for conspiracy to commit war crimes. See, e.g., Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015); CFTC v. Schor, 478 U.S. 833 (1986); and

(2) Whether the Define and Punish Clause of Article I of the Constitution gives Congress power to define as an Offense against the Law of Nations -- triable before a law-of-war military commission -- a conspiracy to commit an Offense against the Law of Nations, to wit, a conspiracy to commit war crimes; and whether the exercise of such power transgresses Article III of the Constitution.
Global Military Justice Reform contributor Prof. Steve Vladeck commented briefly on the order here, on Just Security.

Friday, September 25, 2015

Brother, can you spare a judge?

Pikkie Greef
Does South Africa have the military judges needed to try the promised courts-martial arising out of duty in the Democratic Republic of Congo? This Eyewitness News article suggests it may not:
The South African Defence Force (Sandf) says it does have enough judges to convene a military court to court-martial 50 troops being withdrawn from the Democratic Republic [of] Congo (DRC). 
This after claims by the South Africa National Defence Union (Sandu) that no judges had been appointed in six months. 
The Sandf has requested the United Nations release the troops to face a military court after they apparently ignored a curfew to return to their base and stations. 
The army says the soldiers’ actions endangered the lives of their colleagues. 
Union secretary Pikkie Greef says, “The military courts have not been functional since April this year because the minister of defence has not signed off, for reasons best known to herself, the appointments of the military judges. There is no indication as to when this issue will be resolved.” 
Sandf spokesperson Xolani Mabanga says they will not be drawn into Sandu’s claims. 
“We are not going to say that we do not have judges and therefore each and everybody can do as they wishes because there are not going to be disciplinary measures taken against them. It is not true that we don’t have judges.”

Thursday, September 24, 2015

An unfair question from the bench in Pakistan

“Even though you were in favour of setting up of military courts, how could you now defend a man who was awarded the death sentence by a military court?”

Justice Qazi Faez Isa, Supreme Court of Pakistan,
to Dr Khalid Ranjha,
counsel for a military court capital convict,
reported here in The Express Tribune

SANDF troops to face court martial

That is the headline from IOL News, because, as it reports:

The South African defence force on Thursday said it was withdrawing around 50 soldiers from the UN mission in the Democratic Republic of Congo to face court martial.

The group are alleged to have broken curfew in the eastern DRC where they have been stationed as part of the United Nations Stabilisation Mission in the Congo (MONUSCO), Brigadier General Xolani Mabanga told ANA.

The South African National Defence Force (SANDF) has about 900 to 1 000 troops stationed in the eastern DRC as part of the Force Intervention Brigade (FIB), which operates under the auspices of MONUSCO.

In a statement, the military added: “The members were found to have acted in a manner that compromised the security of SANDF members deployed in the area by breaching or violating the SANDF Military Discipline Supplementary Measures Act (No 16 of 1999) and Code of Conduct as well as United Nations Code of Conduct for Peacekeepers.

Civilian court as enforcement mechanism for sanction imposed by military court

An odd story appears in the Accrington Observer. It seems that Curtis Greenfield, a British soldier, was convicted of desertion in military court and ordered to perform 180 hours of community service. When he failed to perform all the required service, he was prosecuted in Crown Court, where was "given a 12-month conditional discharge and ordered to pay a £150 criminal courts charge." From the article:
Judge Beverley Lunt said Greenfield had ‘no criminal lifestyle’ and ‘no criminal record’. 
Sentencing, she said: “You have done 72.5 hours. It’s not great but at least you’ve done it. 
“There’s an awful lot going on in your life and it’s all got to be sorted out. 
“You are not a criminal, you are not a danger to the locality of Accrington, I don’t need to do something to keep you out of trouble. 
“You have not resorted to any sort of crime. This is a very peculiar set of circumstances.”
Can readers in the UK shed some light on this? How often are military offenses punished with community service orders enforceable by the civilian courts? 

Wednesday, September 23, 2015

Legal professional privilege issue decided in Australia

Hon. Anna Katzmann
Federal Court of
Australia
The Federal Court of Australia has handed down an interesting decision on the privileged status vel non of advice furnished by military attorneys and outside counsel to senior officials. The decision in Gaynor v. Chief of the Defence Force (No. 2) [2015] FCA 817 (11 Aug. 2015) (Anna Katzmann, J.) can be found here. In the end, the court found that the respondent had satisfied his burden in claiming privilege.

Ask lower court first, Pakistan Supreme Court rules

The Supreme Court of Pakistan has advised counsel for a civilian who has been sentenced to death by a military court to seek relief first in the High Court, rather than proceeding in the Supreme Court in the first instance. At the same time (and confusingly), the Supreme Court has asked for submissions on whether the petition may be maintained. Details here.

Tuesday, September 22, 2015

Weaponization of military public affairs branch!

September 22, 2015. The Ottawa Citizen newspaper reports that the new Chief of the Defence Staff is calling for the 'weaponization of public affairs' which will focus on more 'strategic leaks' by the military which will emphasize 'good news stories".

According to General Jon Vance, he intends to "operationalize the [military] public affairs branch" so as to permit the military to better answer questions from the media in a timely manner and make subject matter experts available to respond to critical issues in a 'very dynamic and very fast paced information environment."

From a purely policy standpoint this is quite a turnaround breaking with the tradition by which the army in a democratic regime remains "la grande muette"!  Perhaps we can now anticipate the active participation of designated serving officers in the public dialogue taking place on military justice reforms.  Let's wait and see!

Monday, September 21, 2015

N.J. National Guard under scrutiny

The Washington Post has a major story about the current state of play, including high-level indiscipline, complaints of racial discrimination, and other issues, in the New Jersey National Guard, which is commanded by Governor (and GOP presidential hopeful) Chris Christie.

9 more death sentences in Pakistan

Military courts have handed down 9 more death sentences in Pakistan. Details here.

Could this be true?

New York Times reports:

KABUL, Afghanistan — In his last phone call home, Lance Cpl. Gregory Buckley Jr. told his father what was troubling him: From his bunk in southern Afghanistan, he could hear Afghan police officers sexually abusing boys they had brought to the base.

“At night we can hear them screaming, but we’re not allowed to do anything about it,” the Marine’s father, Gregory Buckley Sr., recalled his son telling him before he was shot to death at the base in 2012. He urged his son to tell his superiors. “My son said that his officers told him to look the other way because it’s their culture.”

Free speech watch

Miley Cyrus
With a hat-tip to The Weirick, who mentions the incident on his Task & Purpose blog, here's a link to a Daily Beast story about the U.S. Air Force's investigation and grounding of four pilots who used Miley Cyrus references in text messages. Excerpt:
Imagine every off-color text message and ill-considered joke you’ve ever sent a friend was scooped up by authorities and used against you as evidence of a serious crime. 
That’s what a group of Air Force pilots have accused their commanding officers of doing in an investigation that could wreck the pilots’ careers. And the strangest part: These allegations of drug use were based solely on a series of text messages—texts that often were little more than quotes from the lyrics of rappers and professionally naughty pop starlets.

H.C. debates case of Marine A

The House of Commons was the venue for a discussion of the court-martial case of Sgt. Alexander Blackman ("Marine A") on Sept. 16, 2015. The debate begins here at col. 339WH. The Daily Mail is beating the drum for reopening of the case -- somehow.

How to close Guantánamo

In case you missed it, here is yesterday's New York Times editorial on "How to Close Guantánamo."

Egyptian military courts had a busy month in August

The Istanbul-based World Bulletin has some eye-popping figures on the use of military courts to try Egyptian civilians last month:
A total of 666 civilians were tried and imprisoned by military courts in Egypt last month, a rights group said. 
The Egyptian Coordination of Rights and Freedoms (ECRF) said that the defendants were handed down 9,649 years of combined jail terms in six provinces during August.
Some 255 civilians have been sentenced to life (25 years) in prison, according to the report posted by the Cairo-based NGO on its Facebook page
“Another 83 civilians were jailed for 15 years, 149 jailed for 10 years and 106 others were slapped with jail terms ranging between three to seven years,” the report said. 
The ECRF said that five children were also tried by military courts in August and handed down 29 years of combined jail terms. 
The rights group said that university professors, lawyers and students were among those tried and jailed by military courts in Egypt.
A recent International Coalition for Freedoms and Rights report on "Civilians' Referral to Military Courts in Egypt" can be found here. Excerpt:
Fourth note: Incompetency of military judges as judges in civilians’ trials 
The Egyptian Constitution acknowledged the right of every citizen to resort to civilian judges. It also confirmed the independence and non-dismissability of judges who shouldn’t be subject to any influence in their judiciary. No authority shall have the right to intervene in any case or justice affairs. Article 67 of the Military Justice Law confirmed that the judges shall not be dismissed nor transferred. Article 38 of the Military Justice Law stipulated that whoever handles justice affairs must have a law degree.

Based on the above, we conclude that the judge must meet a set of criteria in order to be qualified as a judge: impartiality, independence, immunity and qualification. However, we find that military judges do not meet any of these requirements – they are not required to have a law degree as the Martial Law has required the necessary legal qualification for the Director of the General Administration of the Military Justice only (article 2 of the law), without requiring the same for the rest of the judges of members of the military justice.

In addition, the military judge is subject to all disciplinary regulations set forth in the military service law by virtue of article 57 of the Martial Law. The military judge is dismissible every two years in cases of non-renewal, or upon a decision by the Ministry of Defence by virtue of Article 59 of the Martial Law. [Footnotes omitted.]

Sunday, September 20, 2015

By the numbers

Global Military Justice Reform has reached another milestone. As of this morning, we have had 2000 posts. In addition, there have been 294 comments and over 180,000 hits from readers in 155 jurisdictions. Many thanks to everyone who has helped make this possible: contributors, commenters, readers.

Commenters: please remember to post over your real name. No pseudonyms or anonymous comments, please. Also, please maintain the high level of discourse to which this blog aspires. Comments are moderated.

SANDF crime data to be submitted

The South African Broadcasting Co. has the following report on crime in the South African National Defence Force:
The Defence Ministry has confirmed 265 of its employees, including soldiers, have been found guilty of various crimes, including murder and assault, in the current financial year. 
This as a video emerges, showing two soldiers attacking a Mozambican man near the Lebombo border between South Africa and Mozambique. 
Soldiers manned the border and accused the man of theft, bringing out a whip and suffocating him. The man endured repeated blows. 
The department says it first saw these visuals at the end of July and says action has already been taken. Spokesperson Brigadier Xolani Mabanga says, “We are concerned by these figures. When we got the video, we positively identified them as our members. They were suspended. The criminal case and internal case is underway.” 
The soldiers and other employees face crimes ranging from minor to serious. 
The statistics will be revealed to Parliament next month.

Saturday, September 19, 2015

Extra! Extra! Read all about it: Pakistan police to study potential military court cases from all angles

Herewith an excerpt from an article in the Express Tribune about Pakistani police preparing more cases for the military courts. Do other readers get a funny feeling about the italicized phrases?
Soon after the visit of Chief of Army Staff General Raheel Sharif who approved the increase in the number of military courts in Karachi, the government and military officials became busy implementing the orders. At the same time, law enforcers – especially the police department – sprang into action and started compiling a list of high-profile cases that can be transferred to the military courts for early disposal. According to police officials, their investigators will study the case entirely before it is referred to the military courts. The relevant investigators have been directed to study the cases from all angles.
This is journalism, a press release, or a parody?

The short chiefship of Chief Justice Khawaja

Chief Justice Jawwad S. Khawaja
There's nothing funny about Pakistan's military courts, but satire has surfaced. A humorous piece in the monthly Herald on the 24-day [!] tenure of the new chief justice, Jawwad S. Khawaja, includes this snippet:
Let it also be known here that I did not rule in favour of military courts, as established by the 21st amendment. A military judge is no judge at all; the law requires gavels not guns. How would the esteemed military feel if barristers were made Corps Commanders?

All this doctrine of necessity cum expediency cum laude cum sofa and bed, and all this de jure de facto de Villiers. I declare it all ultra vires to the Constitution.

Thursday, September 17, 2015

Stop protecting peacekeepers who rape, Ban Ki-Moon tells UN member states

The Guardian (UK) reports:
The UN secretary general, Ban Ki-Moon, has called on countries whose soldiers are responsible for rape and sexual exploitation on peacekeeping missions to stop covering for their crimes and put them on trial.

Ban said sexual violence by peacekeepers was “a number one priority” after a series of severely embarrassing revelations of rape and exploitation, often involving children.
UN officials acknowledge that the organisation has failed sufficiently to address the issue, in part because of the threat by some countries to pull their peacekeepers out of UN operations if they are publicly named and shamed.
Here is a link to UN Peacekeeping Operations.

Les sauts du système de justice militaire canadien

Dans un article traitant de la Réforme de la justice militaire canadien, le site 45e Nord.ca discute d'une réforme entreprise par le gouvernement quelques jours à peine avant l'ajournement de la session parlementaire en prévision de l'élection générale prévue pour le 19 octobre 2015.

Le projet de loi - Bill C-15 - vise à réformer tout azimut les procès par voie sommaire. Il nous est donc permis de croire que le législateur canadien reconnaît enfin le besoin urgent de réformer le système de justice militaire.

Bringing military justice into the modern age!

"It is not an overstatement to say that we are in the midst of a military justice revolution.

In any examination of military justice with an eye towards reform, there is the notion that the traditional military justice system no longer works well. This notion stems from the belief that this system needs a reformation in order to be in line with society’s broader understanding of what constitutes a fair system of justice. Minor modifications or a tweaking of the system is not sufficient.

To bring military justice into the modern age, many reformers have called for major overhauls and fundamental structural changes to the military justice system as a whole. These calls for reform have been particularly prevalent in countries with a common law tradition. In the past several years many countries, including the United Kingdom, Canada, Australia, and New Zealand, have each undertaken significant reforms within their respective military justice systems.

If there is one overarching theme to these reforms, it is a clear trend towards “civilianizing military justice.” By that I mean reforming military justice so that it mirrors the civilian justice system in that particular country to a much greater degree. There are a number of influences driving this reform. The most important of these influences come from the human rights community and from those who believe that a division of authority is essential in order for any judicial system to be considered fair."


Victor Hansen, The Impact Of Military Justice Reforms On The Law Of Armed Conflicts: How To Avoid Unintended Consequences. Michigan State International Law Review, Vol 21:2 (2013) at 230.

Wednesday, September 16, 2015

CJTF-HOA works to prevent, combat sexual violence in East Africa

The International Conference on the Great Lakes Region Regional Training Facility hosted training on addressing sexual violence within the military justice system recently in Kampala, Uganda.
According to the ICGLR, the Great Lakes Region in Africa has a history where sexual violence against women and children has been used as a weapon of war. In an effort to combat these crimes, approximately 25 members of the military justice system, which included prosecutors, police units, judicial officers, social workers and medical officers, learned about how to address sexual violence, in order to strengthen the capacity of military justice systems to investigate and prosecute cases of sexual violence and related offences.
“The training made military officers aware of the elements of sexual violence and provided standards on how such crimes should be handled when they occur,” said Uganda People’s Defence Force Col. Godard Busingye, Legal Services deputy chief. “Overall, the training improved the capacity of the military to handle sexual violence crimes in their jurisdictions. My country's record in handling sexual violence crimes will improve, because occurrence of such crimes will, where possible, be nipped in the bud, and where they have occurred, be handled expeditiously and in a more transparent manner.”

Bring in the Guard

In the United States, we have become inured to the National Guard being called out to help quell and control civil disobedience and large scale rioting. I myself remember well being in the middle of one such response--as a resident of the neighborhood affected. As we look around the world we see similar instances of calling on the Army, which brings me to Sri Lanka.

In August, the South Asia Citizens Web gave us this story:
Brutal military force was unleashed in the Weliweriya area of Gampaha on people engaged in a protest demonstration against pollution of water by acidic contamination caused by a glove manufacturing plant.
One person was killed and at least 24 injured due to firing by the military.Two journalists were also injured.Some Police personnel also sustained injuries.

Military personnel are currently scouring the area going from house to house in search of the leaders who organized the protest demonstration. According to beleaguered residents the military has virtually besieged the area.
Is the search for the military or the police to conduct?

Does the military search for "organizers" chill speech?  How does this compare to police searching for those who committed criminal acts?
The army said it had been compelled to fire as the troops had come under attack by those demanding the closure of a factory allegedly responsible for polluting ground water in the Rathupaswela area of Weliveriya.
Once the guard is called and they react, then what?  Is there to be a civilian investigation and prosecution, or?  Ceylon Today [1] tells us a little more for background.
Crime Branch, Colombo, is conducting a comprehensive investigation into the Rathupaswala incident where three persons died due to being shot at by the Army while 33 others had sustained injuries, also due to shooting by the Army. The Gampaha Magistrate will also hold a Magisterial Inquiry on the deceased, and will conduct further investigations including obtaining statements and observations.
Now what, there being allegations of misconduct laid against the Army and some of its personnel.  Perhaps this is to be dealt with as a civilian matter?  But . . .
The recording of Summary of Evidence regarding the Rathupaswala incident upon completion of the Court of Inquiry is still continuing, the army media unit said.
The Commander of the army, after perusing the summary of evidence findings, may convene a General Court[] Martial if the evidence discloses prima facie cases against army personnel.
Reports the Columbo Gazette.
---------------
[1] Colonial rule began in Sri Lanka over 400 years ago.  Sri Lanka is the name for the former colony of British Ceylon, before which was a Dutch enclave, and before that Portuguese

Les militaires canadiens victimes d'une inconduite sexuelle peuvent maintenant demander de l'aide par téléphone ou courriel!

Ici le Centre d'intervention sur 
l'inconduite sexuelle des
Forces armées, comment puis-je vous aider?
Le magazine l'Actualité vient de publier un texte intitulé “De l’aide pour les militaires victimes de crimes sexuels.”  qui fait état du fait que le 16 septembre 2015 les Forces armées canadiennes ont ouvert un Centre d’intervention sur l’inconduite sexuelle.  Le Centre relève du sous-ministre de la Défense nationale. Son personnel est formé de militaires et de civils. Donc c'est un organe interne au Ministère de la Défense nationale.

Bizarrement, ce Centre n’est rien de plus qu’une ligne téléphonique qui n'est disponible que les jours ouvrables entre 7 a.m. et 17 p.m. On peut présumer que beaucoup des agressions ont lieu durant les fins de semaine ou en soirée donc hors des heures ouvrables!

Les victimes qui pourraient prendre contact avec le Centre pourront se confier à une personne du Centre par téléphone ou par courriel. Elles pourront aussi s’informer sur les mécanismes de plaintes et les processus d’enquêtes, tant militaires que civils, et se faire diriger vers d’autres services d’aide au sein des Forces et en dehors. Donc le Centre n'est qu'un simple intermédiaire qui réfère les victimes aux ressources existante. Le Centre ne dispose lui-même d’aucun nouveau pouvoir ou recours.

Le Centre d’intervention est ainsi  sous le plein contrôle de la gente militaire. Pourtant, madame la juge à la retraite Marie Deschamps qui est l’auteur d’un rapport accablant sur l’inconduite sexuelle dans les Forces armées avait fortement recommandé qu’un tel Centre soit le plus éloigné possible de la hiérarchie militaire afin que les victimes puissent dénoncer ces actes sans craindre de subir des répercussions négatives sur leur carrière. Il reste donc à savoir si les victimes d’inconduite sexuelle vont faire confiance à tel centre. J'en doute fortement.

Sexual Assault Crisis Phone-in Reporting Centre for Canadian Forces personnel

The Ottawa Citizen reports that a call-centre whose job will be to provide "immediate safety in case of a crisis situation" for military personnel who have been sexually assaulted or harassed has been set-up in Ottawa.  It would be responsible for receiving reports of inappropriate sexual misconduct, as well as overseeing prevention, victim support and research. The Centre will operate during the hours of 7 a.m. and 5 p.m., Monday to Friday. Victims will only be able to contact the Centre by phone using a 1-844 line. The Centre will be staffed with both defence employees and military personnel. A permanent centre will be created in 2017!

The creation of such a centre was recommended earlier this year in the scathing report on sexual misconduct in the Canadian Forces prepared by retired Madam Justice Marie Deschamps.  The former Supreme Court Justice had recommended that the centre be independent and outside the military."

There are currently 10 full-time employees working at the Centre as well as two Canadian Forces members “who are the military advisors for the centre and fulfil the role of military liaison for the organization.

It remains to be seen whether CF victims of sexual misconduct will place their trust into this military Centre.

Tuesday, September 15, 2015

Spanish military justice

SAVIEZ-VOUS QUE?

Les juridictions militaires espagnoles sont des juridictions spéciales. Elles sont les mêmes en temps de paix et en temps de guerre, mais leurs compétences diffèrent selon les circonstances. En temps de paix, la justice militaire est essentiellement compétente pour juger des infractions au code pénal militaire. En temps de paix, si des troupes espagnoles sont déployées à l'étranger, la compétence de la justice militaire est élargie aux infractions déterminées par les accords passés avec les pays en question. En temps de guerre, sa compétence s'étend aux infractions prévues par le droit pénal ordinaire.
1.     Les juridictions du premier degré.
·       Les tribunaux militaires territoriaux constituent des juridictions pénales militaires du premier degré pour les hommes de troupe, les sous-officiers et les officiers subalternes. Lorsqu'ils jugent les infractions militaires commises dans leur ressort géographiques les tribunaux militaires territoriaux se composent de trois magistrats militaires, dont le président et deux militaires tirés au sort avant le procès à partir d'une liste établie annuellement. Ces militaires doivent, dans la mesure du possible, appartenir à la même arme que l'inculpé.
·       Les infractions pénales militaires commises par les officiers supérieurs sont jugées en première instance par le Tribunal militaire central. Sa composition est similaire à celle des tribunaux militaires territoriaux, mais les membres du Tribunal militaire central, qu'il s'agisse des magistrats militaires ou des militaires tirés au sort, ont des grades plus élevés.
·       Les infractions pénales militaires commises par les officiers généraux sont jugées par la chambre militaire du Tribunal suprême. La chambre militaire du Tribunal suprême constitue la cinquième chambre du Tribunal suprême, après la chambre civile, la chambre criminelle, la chambre administrative et la chambre sociale. La chambre militaire du Tribunal suprême est composée de huit juges, dont l'un préside. Quatre d'entre eux sont des magistrats professionnels issus des juridictions ordinaires et les quatre autres sont des magistrats militaires. Le président est nécessairement un magistrat professionnel issu des juridictions ordinaires. Pour les officiers généraux, qui sont jugés en première et dernière instance par la chambre militaire du Tribunal suprême, cette dernière est à la fois juridiction de jugement et d'instruction.
2.     L'appel n'existe pas, mais la cassation est possible, sauf pour les officiers généraux, qui sont jugés en première et dernière instance par la chambre militaire du Tribunal suprême.
3.     La juridiction de cassationC'est la chambre militaire du Tribunal suprême.

Military courts and juvenile offenders

The Daily Times editorial board has sounded a cautionary note on whether cases involving young people should be tried in Pakistan's military courts. The editorial argues:
Much has been written about the secretive and dubious process of the military courts, and there have been challenges to their legality. However, the argument of 'necessity' and a broken judicial system won out, with the speediness and unhindered nature of military courts appealing to both the public and the political class. But even if one is resigned to the legality of the military courts, the obsession with hurrying through cases and expediting the executions of suspected terrorists with zeal must be checked. In our collective desire to eliminate terrorism we must not lose our heads because the purpose of justice is not to exact revenge but protect the fundamental ideals and principles of society. So even if it is proved that juveniles were responsible for the terrorist activities they are accused of, putting them on trial as adults is a ghastly prospect. The spirit of the law dictates that underage people cannot be held accountable for their actions in the same way that adults are, and this principle cannot be stretched even in the case of terrorism. By the military’s own admission, the juveniles involved in terrorism are brainwashed by their terrorist handlers using a multiplicity of psychological methods and drugs. This makes it even more imperative that they be treated not as accountable perpetrators but as manipulated young minds who are victims themselves. Rather than clamouring to end their lives, the focus should be on reforming and rehabilitating them. The fight against terrorism cannot be won by racking up the body count but by changing mindsets.

Monday, September 14, 2015

What about the pending capital cases in Nigeria?

Things are allegedly on a positive trend line in Nigerian military discipline, but is all well? Here's a National Mirror editorial that suggests more needs to be done (such as taking a hard look at the spate of military death row cases):
. . . [T]he Nigerian Army said not long ago that it had reinstated back into its fold 3,032 convicted soldiers after a review of 5,000 cases of soldiers dismissed over offenses committed in the course of fighting Boko Haram. 
President Muhammadu Buhari had also approved the award of Nigerian Army Medals (NAM) to the new CDS, General G.A Olonisakin; the CoAS, Lieutenant General T.Y. Buratai; and the Director of Military Intelligence (DMI), Brigadier General ASH Sa’ad, according to a recent report credited to the Acting Director, Army Public Relations, Colonel Sani Kukasheka Usman. These and other proactive measures taken so far to motivate Nigerian soldiers and enable them go all out and subdue insurgency in the country are commendable. There are, however, some worrisome reservations. Usman said, for instance, that not all the dismissed soldiers were granted pardon; and that those with criminal cases had their sentences upheld. A recent report also quoted human rights lawyer, Mr. Femi Falana as saying despite the reinstatement of the 3,032 soldiers, various courts-martial where some officers and men were being tried were still in place. 
Our thinking, therefore, is that the military hierarchy is yet to complete the job of motivating its officers and men it started. Except for extreme cases of sabotage and insubordination, the military should be gracious enough to further review the criminal cases Usman made reference to, especially on consideration of the fact that a lot of the infractions or unprofessional charges for which the soldiers were docked revolved around their demand for the wherewithal to confront Boko Haram insurgents. The 70 soldiers Falana claimed were still on the death row appear rather too many. The government and the military should not grandstand to the point of cancelling out the good works they have already started by taking steps that would demoralise the nation’s soldiers and motivate the enemy.