Saturday, October 31, 2015

Strengthening military and police courts in Perú

Shortly after the Peruvian Constitutional Court reaffirmed the validity and competence of military courts to try offences committed in the performance of official duties by military and national police personnel, the military jurisdiction’s presence in Peru was expanded.

As el Peruano reported in September, here, General Juan Pablo Ramos Espinoza argued in favor of this expansion and the need to allocate more resources to Peruvian military courts before the Budget Committee of the Peruvian Congress. With additional funding, new projects would be executed; among them, implementation and/or improvement of courtrooms, as well as the modernization of technological tools, equipment, and training programs, and the construction of new headquarters in Cusco and Lambayeque.

Outgoing IDF MAG in the news

Maj Gen Danny Efroni, IDF
Major General Danny Efroni's event-filled term as Military Advocate General of the Israel Defence Force is coming to an end. Here is the Jerusalem Post's assessment. Spoiler alert: there was some politics to how he came to be MAG in the first place.

Friday, October 30, 2015

Egad! permanent commissions for women officers in the Indian Navy!

Not military justice, but . . .

The government is seeking review by the Supreme Court of India of a Delhi High Court decision that requires the Indian Navy to offer women permanent commissions, as is true in other branches of the Indian armed forces. Details here.
Interestingly, the appeal claims that the order would affect the seniority of personnel and their opportunities for promotion in the Navy. But it also believes the order is discriminatory because no male officer who has been recruited under the SSC has been offered permanent commission. 
Another contention of the appellants is that the Delhi HC has assumed the role of 'decision maker for the Indian Navy'. The Navy has claimed intrusion into its policies, saying the HC 'nullified its policy without any cogent reason or basis'. 
The Delhi HC had observed that since all three arms of the military - Army, Navy and Air Force - come under the government, they cannot have different laws. The Navy opposes this , stating that "there are wide variations between the functions of all three services and each service is given the liberty to choose the policies conducive to meet service-specific standards."

Wednesday, October 28, 2015

Female guards and male prisoners at Guantánamo

A row has broken out about a military commission judge's ruling that Guantanamo defendants should not be touched by female guards. Details can be found here, thanks to the Miami Herald's Carol Rosenberg, dean of the Guantánamo press corps. The Secretary of Defense, Chairman of the Joint Chiefs of Staff, U.S. Southern Commander commander, and several senators have criticized the ban, which is the subject of pending equal opportunity complaints against the judge, Col. James L. Pohl. Is this now-- on top of everything else -- a case of unlawful command/congressional influence? The Herald reports:
“These men have been subjected by the U.S. government to documented, systematic sexualized attack on their Islamic identity,” Marine Maj. Derek Poteet, [Khalid Sheik] Mohammed’s detailed military counsel, told the Miami Herald. “So forced touching by guards of the opposite sex is extremely inappropriate.”
Poteet also called it “also extraordinarily inappropriate for these respected military and civilian leaders to inject themselves into the matters that are currently in litigation in a military commission by a military judge, raising the specter of unlawful command influence.”
Postscript: Human Rights First's Daphne Eviatar has this commentary on Huffington Post. Excerpt:
In this case, it's not clear what Judge [James L.] Pohl will do. Now that the defense secretary has publicly criticized Pohl's ruling, it could look like he's submitting to command influence if he reverses his earlier decision. If he refuses, he'll have to respond to the pending female guards' discrimination complaints against him. In the past, he's been reluctant to do anything that suggests he's trying to control the guard force or micro-manage the detention center. 
The issue of command influence would not come up if the case were in a civilian federal court because those federal judges have life tenure, specifically to shield them from potential political or other influence from government officials. Although President Obama and his then-attorney general Eric Holder originally wanted the case brought in federal court, they ultimately yielded to political pressure to bring it at Guantanamo, and Congress has since imposed restrictions on moving any Guantanamo detainees to the United States, even for trial. Unless new legislation changes that, the case will remain stuck in Cuba. 
The judge heard testimony from Guantanamo guards involved with the complaints Friday afternoon, but is not expected to rule on the claim of unlawful command influence before hearing additional arguments and testimony, possibly at the next set of hearings in the case, scheduled for December.

Tuesday, October 27, 2015

Federal Court of Canada remands grievance case to CDS

There has been an important decision at the Federal Court of Canada. In Ouellette v. Attorney General of Canada, 2015 FC 1185, the court, per St-Louis J., granted a Canadian Forces colonel's application and overturned a decision of the Chief of the Defence Staff denying the colonel's grievance. The basis for the grievance was that he had been unfairly removed from command while serving in Haiti. In court, however, the issue was the narrower and somewhat technical one of whether the grievance process had functioned properly. Col. Ouellette was supported by the Military Grievances External Review Committee, which intervened (remarkable in itself) and expressed serious misgivings about the processing of the grievance. The court did not reach the merits but quashed the decision of the Chief of the Defence Staff on the grievance and remanded for further proceedings, awarding $6000 in costs.

The National Post has this report. Excerpt:
The Canadian Forces Grievance Board, in a December 2011 report, said it was “shocked” by the way Ouellette was treated and said his removal was unjustified. 
The board found that the military’s strict non-fraternization code didn’t apply because the policy deals with personal relationships between Canadian Forces members, DND employees and allied force members. Ouellette’s assistant was a UN employee. The board further stated that offering her accommodations in his house was not unreasonable given the circumstances.

‘He’s damaged goods’ 
Further, evidence of an affair never amounted to more than “unconfirmed allegations” and “innuendos” and there was no evidence to support the notion th[at] morale problems were threatening operations. 
The board concluded Ouellette was never privy to all the allegations or given an opportunity to respond. 
It recommended creating a “public affairs plan” to restore Ouellette’s reputation and character.

Just a little chat at the precinct house

This just in from Thailand, land of lèse majesté:
The editor of a pro-democracy news website was summoned by the junta over a recent infographic it deemed overly broad in describing the kingdom’s strict law against defaming the monarchy. 
Thaweeporn Kummetha, editor of Prachatai English, said 10 officers from the military, police and other law enforcement agencies asked Prachatai to be more careful in how it presented information, particularly in regards to the law, which is known as lese majeste. They told her the graphic was too vague and might cause misunderstanding. 
“The military officer insisted it was not an attitude adjustment but a talk for better understanding,” Thaweeporn said, adding she was not asked to sign any agreement.
Four soldiers arrived at her home Monday to summon her to appear. Thaweeporn declined to say where the meeting was held but said the president of the Thai Journalists Association was also present. 
The infographic published Wednesday represented 14 actions that could be considered illegal under Article 112 of the Criminal Code, which criminalizes anything damaging to the reputation of the Royal Family and is punishable by 15 years in prison for each offense. 
The graphic identified the different penalties for activities, such as writing graffiti and sending SMS messages, which have resulted in convictions on the charge. 
Its language was sparse, however, to be short and simple in an infographic format. The examples for each type of offense included links to relevant stories describing the details. 
The meeting lasted about 90 minutes, she said. The 10 officers present were from the military, police, Ministry of Justice and the Department of Special Investigation. Thai Journalists Association chairman Wanchai Wongmeechai was present as a witness. 
Reached for comment, a representative from the association said Wanchai would not discuss the meeting.

Monday, October 26, 2015

Stay away from this demonstration?

The Daily Mail, which has been closely covering (i.e., stoking) the controversy over the case of Sergeant Alexander Blackman of the Royal Marines, reports here that serving personnel have been told not to participate in a demonstration in support of the convicted noncom. Excerpt:
Servicemen have been banned from joining a rally for a Marine jailed for killing a Taliban fighter in the heat of battle. 
More than 1,300 supporters are expected to gather in Westminster tomorrow to demand justice for Alexander Blackman. 
But top brass warn of disciplinary action against any troops caught attending the ‘political’ event. 
‘This is pure cowardice from the MoD,’ said a serviceman last night. ‘They have tried to sweep the case under the carpet from the word go.’ 
Sergeant Blackman, 41, was convicted two years ago of killing a Taliban fatally wounded attacking a British base in Afghanistan. 
He admits making a split-second mistake on a ‘tour from hell’ that saw comrades tortured and their body parts hung from trees. But he believes his court martial was a cover-up for commanders’ failings. 
John Davies, a former Marine helping organise tomorrow’s event, said serving personnel had confirmed an MoD ban was in place.
What if they attend out of uniform?

Do military courts violate international human rights law?

On November 20, 2014, the Inter-American Court of Human Rights rendered its judgment in the case of Arguelles et al. v. Argentina. (See my previous blog on the Court’s public hearing in this case of May 28, 2014.) Regrettably, due to lack of funds and the lack of any native English- speaking judges on the Court, the Court still has not issued an official English translation of this judgment.

This case is interesting because, for the first time, the Inter-American Court considered a fact situation in which military officers were judged for a crime that was appropriately tried in a military court given the law in Argentina at the time.  The military officials were tried for military fraud in proceedings that they alleged violated their human rights to liberty and a fair trial because they were held in preventive detention for approximately 7-8 years before being tried and they were defended by individuals who had no training in law.  The proceedings began in 1980 (while Argentina was still under military rule) and the plaintiffs (members of the military) alleged violation of their human rights in the judicial proceedings that were conducted before both military and civilian courts.

The Inter-American Court’s jurisprudence has traditionally involved cases where members of the military are judged in military courts instead of civilian courts for human rights crimes.  The Inter-American Court’s constant jurisprudence has repeatedly affirmed that military courts should be limited to dealing with offenses that affect military discipline and military interests and that only civilian courts should try members of the military for human rights crimes.

Consequently, the Arguelles case was the first case to question whether military trials, per se, violated international human rights law.  The judicial proceedings involved members of the military who were being judged for offenses that were appropriately before a military court.  The Commission argued that the special status of military courts was at issue, given their lack of independence and impartiality, and the fact that they did not form part of the Judicial branch of government.  When Argentina returned to democratic rule in 1984, however, a law was adopted whereby members of the military  were able to appeal their convictions to civilian courts.  In this case the plaintiffs appealed to the National Cassation Court and the Argentine Supreme Court, both civilian courts, which prevented the Inter-American Court from finding a violation of the American Convention based on the existence of military courts.  In para. 157 of the judgment the Court noted that the failure of the petitioners to question the independence of the military tribunal (the process of appointment, length of their mandate and the qualifications of the members) before the domestic courts rendered it incapable of issuing a decision on the matter.  The Court did set out, however, what needs to be done in a subsequent case.

The Inter-American Court did find a violation of the right to liberty due to the extensive preventive detention, as well as violation of the presumption of innocence, the right to a fair trial (due to the length of the proceedings) and the right to be assisted by legal counsel of one’s choosing.  Since the defender before the military court was not a lawyer, there is a certain contradiction in the Court’s reasoning (in para. 180 of the judgment) that it was not proven that the legal defense in the military court caused any prejudice to their rights (since they were afforded the obligatory civilian court review), when in para. 157 the Court noted that the petitioners failed to raise certain issues that one would assume would have been raised had they been afforded proper legal counsel.

Sunday, October 25, 2015

On this day in 1760, at age 22, . . .

George III succeeded his grandfather George II as monarch of the United Kingdom. He died on January 29, 1820. The 1775 American Articles of War were derived from the Articles of War George III issued in 1774.

Disparate military sentencing faulted by federal judge

Hon. Frank D. Whitney
Federal district judge Frank D. Whitney of the Western District of North Carolina has spoken out about the fact that court-martial panels may adjudge widely disparate sentences for factually similar sex offenses. Judge Whitney has sat as a reserve military judge even after becoming a district judge. For a video interview with him, click here.
“In the federal system, because the Supreme Court has told us so in United States v. Booker, the sentencing guidelines are not only appropriate, but they must be used in the process of sentencing,” Judge Whitney said, explaining that the system of using guidelines in Article III courts “actually helps us avoid disparate sentencing.” 
“That simply is nowhere to be found in the sentencing process of the military,” Judge Whitney said. 
Instead, the military judicial process calls on expert panels of military officers to serve as the fact-finders and hand down sentences without the use of such guidelines, but panels face an “overwhelming amount of instructions” under the "Military Judges’ Benchbook." 
“It can be so many factors that it can just be daunting to them and they don’t have any baseline,” Judge Whitney said.
Judge Whitney's comments came in video teleconference testimony to the Pentagon's Judicial Proceedings Panel.

Saturday, October 24, 2015

Is this court-martial necessary?

This post concerns a case from a few months ago. An Air Force officer has been convicted of accessing child pornography by a federal district court. His sentence could be 20 years and a quarter-million-dollar fine. He is also being prosecuted in a court-martial:
Lt. Col. Scott Meakin, 39, a combat systems officer with the 563rd Rescue Group of the 23rd Wing at Moody Air Force Base, Georgia, faces charges that he communicated indecent language and an image on the Internet. 
"During 2013 and 2014, Meakin entered multiple internet chat rooms and discussed graphic sexual abuse of children with other individuals," said a statement from Davis-Monthan Air Force Base in Arizona, where Meakin had been assigned. 
Meakin also sent a picture of male genitals to other chat room users, according a Davis-Monthan spokesperson who referenced official charge records.
Plainly the charges are different in the two forums, so no concern arises about double jeopardy even though it's the same sovereign. And the Air Force has an interest in wanting to separate the officer. But is a second trial necessary? Could he be boarded out for misconduct or dropped from the rolls if he is confined as a result of his federal conviction? Perhaps he is retirement eligible, and could therefore thwart a mere separation by retiring voluntarily (presumably at a lower pay grade). And perhaps he will not be jailed for his civilian federal offense, thus preventing the government from dropping him from the rolls due to confinement. Hence there may be a need to obtain a dismissal.

Additional information or insights, anyone? (Real names only, please.)

More on that closed court-martial in Nigeria

More information has become available about the recent court-martial of a Nigerian general officer. The media were excluded from the trial. But why? Because the subject was embarrassing for the Army? Here is the latest report from Leadership:
The army yesterday broke its silence over the sentence of the General Court Martial passed on Brigadier-general Enitan Ransome-Kuti for the crimes, he allegedly committed in the operations against the Boko Haram terror group in the North-east. 
Since the army stopped the media coverage of the General Court Martial, where soldiers and officers are being tried for some criminal offences allegedly committed in the on-going operation against the Boko Haram terrorists, the media has been relying on reports from the lawyers, officers and soldiers who attended it. 
In a statement titled, "A Response to Media Enquiry on Judgement of General Court Martial," issued and signed by the acting director, Army Public Relations, Col Sani Kukasheka Usman, the army confirmed the two sentences passed on him.

"In reference to media enquiry on the judgement passed by a General Court Martial yesterday at Army Headquarters Garrison refers. I wish to confirm that one of the accused persons, Brigadier-general EA Ransome-Kuti was awarded the following punishments on the various count charges against him as follows: 
"The first count charge which was 'Cowardly Behaviour' was struck out but he was found guilty on count charge number two which was 'Failure to Perform Military Duties' and was dismissed from the Nigerian Army. 
"He was equally found guilty on count charge number three, which was 'Miscellaneous Offences Relating to Service Property' and was awarded six months imprisonment.
Judging by this account, it would seem that sentencing is done on a per-charge basis rather than a single sentence being adjudged for all offenses. And what happened to the other accused?

Civilians dominate among the accused in Ugandan court-martial

Sometimes it is interesting to see what makes the news in reporting about courts-martial. Here is an article about a Ugandan general court-martial where the major general who chairs the court has had to deal with delays due to the repeated absence of civilian defense counsel for the 14 accuseds. Excerpt:

The General Court Martial chairman, Maj. Gen Levi Karuhanga gave the warning on Wednesday after Jude Mbabaali failed to turn up in court again.
“I am giving a final warning. If the lawyer does not appear in court again, then the accused will look for another advocate to represent them,” he warned. 
This prompted Karuhanga, who appeared to be frustrated at the pace of the court proceedings to advise the accused persons to get a new lawyer. 
“The public are not seeking adjournments but it is the lawyer delaying justice and the accused persons are suffering,” he said. 
The accused persons were charged with two offences related to security and aiding the commissioning of the offence contrary to the UPDF Act. 
The court chairman sent back the accused persons to Luzira Prison and Makindye military police headquarters respectively until November 10, when they will re-appear in court for the hearing of their case.
That is certainly newsworthy, although one wonders why the case was adjourned for so long, rather than, say, one day. Only far down in the story does the fact emerge that nine of the accuseds are civilians. Shouldn't that have been the lede? Or has the exercise of military jurisdiction over civilians become business as usual in Uganda?

Thursday, October 22, 2015

Thumbs down on military courts according to this commentator

A strong and perceptive dissent on military courts is registered here by Pakistani observer Ejaz Haider. Excerpt:
My objection to the creation of military courts was/is more fundamental and relates to creating ‘exception’. As I have noted previously, the act of creating an exception itself is a problematic proposition. While jurists like Carl Schmitt consider it the basic trait of the sovereign, many others, notably Giorgio Agamben and Jacques Derrida, refer to an exception as a force that lies outside of law and is legal fiction. 
My intention here is not to go further into that debate but to simply flag the point that while extraordinary circumstances might force a state and society’s hand into using law to denote its own absence for a certain period of time, it is, nonetheless, problematic. 
In the case of military courts we are not just talking about creating an exception once by allowing the standard legal system to interpret law differently or ignore some of its finer points and settled axioms, but, by going outside that system, we are creating yet another exception.

Wednesday, October 21, 2015

Law and order in Pakistan

This article has the data:
131 cases of terrorists have been referred to military courts. Number of hangings has reached 246 after the death penalty was restored. President Mamnoon Hussain has rejected appeals of 54 persons, reported Dunya News
According to latest statistics of National Action Plan (NAP), up to 131 cases of terrorism have been referred to military courts in the aftermath of restoration of death penalty. 246 persons have been hanged out which 62 were tried under Anti-Terrorism Act while 184 persons have been tried under Penal Code. The concerned persons were handed death penalties as they were involved in heinous crimes such as killing, kidnapping for ransom among others. 
Nearly 6000 applications have been filed to stop the implementation of the death penalties. As per sources, after 21st amendment, 131 cases have been sent to military courts for which courts are working on a daily basis. More than 20 terrorists involved in various incidents of terrorism have been convicted and hanged while some of them have been given life sentences. Army Chief has ratified the sentences passed on by the military courts.
Editor's comment: These data seem not to demonstrate why military courts with power to try civilians were necessary.

Canadian Military Law Conference - November 13 2015 - Ottawa, Canada


"Combatting injustice and reforming the Law". Justice (retired) Gilles Létourneau's Memoirs:

Canada's premier publisher of French-language legal literature, Wilson & Lafleur, is launching the  biography of the Honorable Mr. Justice (ret'd) Gilles Létourneau, formerly of the Federal Court of Appeal and the Court Martial Appeal Court of Canada.

Its title, Combatting injustice and reforming the Law,  captures the essence of  Justice Létourneau's long and distinguished career.

British military law should apply to Libyan troops?

Our esteemed editor spotted this article in The Herald Scotland relating to Libyan troops being trained by the British Army in Cambridgeshire. For those of you who missed the story, full details are here. In short, the trainees ran amok through the local village and two of their number then raped a passerby in Cambridge. They were swiftly arrested, tried in the (civilian) Crown Court and jailed for 12 years each. Following the attacks the rest of the trainees were sent home in disgrace and local media demanded to know why they had not been kept confined to barracks throughout their stay.

Maria Eagle, MP
Enter Miss Eagle . . .

Maria Eagle was formerly a minister under the last Labour Government in the UK and in September 2015 she was appointed shadow defence secretary. During the second reading of the Armed Forces Bill (the legal framework which allows the UK to maintain a standing army in peace time) which included some minor changes the Military Justice System in the UK Miss Eagle called for Libyan soldiers to be brought under British Military Law whilst serving in the UK.

Ok, well maybe this might work? 

If we accept Miss Eagle's argument at face value, what would have changed? Under a forces agreement the Royal Military Police investigated the offence (probably much more slowly as they have far less experience of such offences) before passing the matter on the the Service Prosecuting Authority who, having reviewed the file, would have directed the commanding officer to charge the soldiers. Then, following a delay, the matter would have been tried before the Court Martial (which currently has limited witness care facilities) and presumably the defendants would have been convicted and sentenced. They would then serve their sentence (as it would be more than two years) in a civilian prison. Oh, we're back where we started . . .

How would this affect the British Army? 

The British Army trains its soldiers all over the world, in Kenya, Belize, Saudi Arabia and Canada, amongst others. Additionally there is (and will be until 2020) a substantial garrison in Germany. Although matters are slightly different in Germany where ever in the world the British Army are they are subject to service law. Surely if Miss Eagle's plan went through there would be calls for British troops to be subject to Saudi service law? As Colonel (Rtd) Bob Stewart MP put it,

"We want our military law to extend to our servicemen wherever they are in the world."

Surely this is what any government would want when it sends their forces abroad either for training or for combat?

A question for Miss Eagle . . .

How should this matter have been dealt with? 'UK soldier jailed for rape of six-year-old girl in Austria'

Tuesday, October 20, 2015

Kunduz fallout?

Readers will be aware of the horrible event--the bombing of a Doctors Without Borders hospital in Kunduz, Afghanistan,  A U.S. investigation is underway, which some, including Doctors Without Borders say, is inadequate.  This is not the first time Kunduz has been bombed in a manner that led to political repercussions, especially in Germany, due to a high civilian death toll.

The question becomes who was responsible, why, and was any criminal misconduct the cause or significant factor.  Here, I'm thinking of gross negligence or dereliction of duty which could be punishable under the Uniform Code of Military Justice for U.S. military personnel involved.

In an article today, the Washington Examiner tells us that Experts predict Kunduz bombers won't get jail time.

The article notes several past incidents of significant civilian casualties from military operations in which no or only administrative actions were taken.  The article notes  for example the Ashby case.

Check United States v. Ashby, No. 200000250, 2007 CCA LEXIS 235 (N-M. Ct. Crim. App. June 27, 2007) (unpub.), 68 M.J. 108 (C.A.A.F. 2009).  He and his navigator [and here] did get in trouble for destroying potential evidence--it's the cover-up, not the crime.  There was some significant litigation about command influence affecting the case, à la Bergdahl.


The Editor periodically checks to see where our readers are. This is what he found this morning under page views (top 10 countries) for the last 24 hours.

Who knew?

United States

Monday, October 19, 2015

Ex-military judges on trial in Bulgaria

Veselin Pengezov
Bulgaria continues its prosecution of officials who were previously involved in the administration of military justice. Sofia News Agency reports:
The Sofia City Court on Monday is expected to launch the trial against former Sofia Appellate Court chair Veselin Pengezov and other ex-officials over their alleged involvement in a EU funds fraud. 
Last spring, while still in office, Pengezov was initially charged with four counts of embezzlement, over irregularities in EU-funded projects which prosecutors allege are tantamount to a fraudulent scheme. 
A month later charges were also brought against Maria Divizieva, at that time Chief of Staff of Bulgarian PM (2013-2014) Plamen Oresharski, who allegedly facilitated the presentation of false statements in a report under the same operatinal program. 
In April of this year, the Sofia District Military Appellate Prosecutor’s Office pressed charges against Pengezov (head of the Sofia Military Appellate Court at the time of the scheme) and Divizieva, who was then head of the Finance Ministry Directorate in charge of the operational program Administrative Capacity. 
Others charged included the former Chair of the Sofia Military Appellate Court Petko Petkov (at the time deputy to Pengezov), the former Deputy Chair of the Military Appellate Court Vladimir Dimitrov, and several other officials including Atina Mavridis, Petya Gergova, Lyudmil Simeonov, and Krum Simeonov
Prosecutors' actions in that case were related to the selection of contractors for public procurement launched under Operational Program Administrative Capacity - the one under which the scam is thought to have operated.
Query: why was a military prosecutor, instead of a civilian official, handling the earlier cases? 

Upheaval in Algerian military justice

El Watan reports here on the retirement of 14 Algerian colonels who had been serving as prosecutors and judges in the military courts. The retirements would have happened sooner or later in any event, but sources say they are connected to an incident in which shots were fired at a presidential residence and a lieutenant was sentenced to three years in prison for violating military orders and wasting ammunition and six other soldiers were released. In addition, the chief of military justice was recently sacked and replaced by a senior gendarmerie official. Heads are rolling, presumably because harsher steps were not taken.

Sunday, October 18, 2015

Lebanon's military courts at it again

Human Rights Watch is on Lebanon's case for a current prosecution of a civilian woman who claims she was raped in military custody. Now she's being prosecuted for defaming the army. HRW points out that military courts should not be trying civilians and defaming the army is not a proper crime. Details here. Excerpt:
Under international law, governments are prohibited from using military courts to try civilians when civilian courts are functioning. The United Nations Human Rights Committee has stated in its General Comment on the right to a fair trial that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.” 
Prosecuting people for allegedly defaming the army or other state institutions is incompatible with Lebanon’s obligations under article 19 of the International Covenant on Civil and Political Rights. In 2011, the Human Rights Committee issued guidance that emphasized the high value international law places upon freedom of expression in “public debate concerning public figures in the political domain and public institutions,” adding specifically that governments “should not prohibit criticism of institutions, such as the army or the administration.”
Say, wait a cotton-pickin' minute: wasn't Lebanon just discussing cutting back on the military court's jurisdiction?

Bravo to HRW for continuing to stand watch on these issues.

Old News Department

Global Military Justice Reform began in January 2014, and obviously much happened before then. Once in a while the Editor comes across a pre-GMJR document that seems to have escaped attention. Here's one: Human Rights Watch's July 27, 2011 report, Righting Military Injustice: Addressing Uganda's Unlawful Prosecutions of Civilians in Military Courts. Excerpt (footnotes omitted):
Military courts should ideally serve as a disciplinary mechanism for military personnel, and their jurisdiction should be limited to offenses—provided for in law—committed by military personnel while they are subject to military law.
International legal standards deem the trial of civilians in military courts, in principle, to be incompatible with the right to a fair trial, and in particular the right to be tried before an independent and impartial tribunal. Trials before military courts are often incompatible with international standards due to the lack of independence of judges, who tend to be serving members of the military who remain in the military chain of command, and often offer reduced due process safeguards.

While international law does not prohibit limited use of military courts to try civilians in times of armed conflict, the United Nations Human Rights Committee, the expert body that monitors state compliance with the ICCPR [International Covenant on Civil and Political Rights], has held that “as certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations.”
UN human rights bodies have on numerous occasions studied the challenges that military justice raises, including the problem of trial of civilians before military courts. The “Draft Principles Governing the Administration of Justice Through Military Tribunals,” an expert document submitted to the UN in 2006, provides that “military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.” This principle reflects the practice of UN treaty bodies such as the Human Rights Committee and the Committee Against Torture, which have repeatedly called on states to ensure that military court jurisdiction is restricted to offenses of a strictly military nature committed by military personnel. In May 2011, the Human Rights Committee in a case involving Cameroon, explicitly affirmed that military tribunals should not in principle have jurisdiction to try civilians.

Saturday, October 17, 2015

General officer jailed in Nigeria

Femi Falana SAN
A brigadier general has been dismissed and sentenced to six months' confinement by a Nigerian general court-martial sitting behind closed doors. The Associated Press reports:
Brig. Gen. Enitan Ransome Kuti — a nephew of Afrobeat music legend Fela Ransome-Kuti — was sentenced to six months' jail for losing weapons to Boko Haram, said army spokesman Col Sani Usman. He was dismissed from the military for "failure to perform military duties." 
A court-martial sitting in secret Thursday found Ransome-Kuti not guilty of cowardice and found he was right to withdraw his men in the face of Boko Haram's superior numbers and firepower. 
Not part of the case was the civilian deaths at the Jan. 2 battle for Baga, which was headquarters for a multinational force. The government said 150 people were killed but witnesses put the number as high as 2,000. 
Defense lawyer Femi Falana said the military is discriminating since it has dismissed other courts-martial. Dozens of rank-and-file troops sentenced to death for offenses including running away from Boko Haram have received reprieves in recent months. 
"Since the other courts-martial have been dissolved ... it is discriminatory, inequitable and illegal to continue with the trial of Brigadier-General Ransome-Kuti," Falana said, according to the Premium Times newspaper.

Friday, October 16, 2015

In camera proceedings uphold secret military court

The Peshawar High Court has upheld death sentences handed down in two military court cases. The military courts were conducted in secret and the High Court proceedings were conducted in camera,* according to this article in The Express Tribune.

* We are not making this up.

Was it abuse of authority or domestic violence?

The Spanish Supreme Court decided that a civilian court should investigate the possible crime of domestic violence (violencia machista) in a complaint denouncing ill treatment presented by a female soldier against her partner, a corporal, instead of processing the case as abuse of authority in a military court.

The Chamber of the Supreme Court that resolves conflict of jurisdiction issues settled the dispute between the civilian court in the Grand Canary Islands and Military Court No. 52.

The events occurred on October 17, 2014 at Gando Air Base.  On that day, the female soldier complained that when she was in her home, a corporal from the same base, broke into her room, insulting her and asking for explanations about her personal life, and then he attacked her.

For military jurisdiction the acts could be interpreted as the crime of abuse of authority under the Military Penal Code, constituting inhuman and degrading treatment.

But for civilian jurisdiction, what occurred should be investigated as a case of domestic violence, because the environment in which the alleged aggression took place was that of a couple, not that of hierarchical respect owed by a subordinate to a superior.

The Supreme Court accepted the latter reasoning although it recognized that "the hierarchical relation between the members of the military is of a permanent character and it is maintained with independence from any conditioning, with independence from the moment or the situation."  But the general rule has exceptions in those situations in which the special relation or affection between people emerges with intensity.  Personal relations have to trump strict military relations, wrote the author of the decision, Judge Benito Galvez Acosta.

The Weirick & Joyner on Civilianization II

LtCol James W. Weirick, USMC (Ret)
Prof. James Joyner and LtCol James W. ("The") Weirick, USMC (Ret) have posted another essay on the civilianization of military justice. Responding to Maj Gen Charles J. Dunlap, Jr., USAF (Ret), they say in part:
The thrust of Dunlap’s argument centers on retaining the status quo because that is how we have always done it. While the military justice system has served the U.S. military well in the past and generally continues to do so, that does not render the system beyond improvement. 
How many cases are we willing to sacrifice to maintain the commander-centric form of military justice? This is an argument of degrees. Our position remains that we have crossed into an intolerable category due results in recent sexual assault causes. The time has come for removing commanders from the most serious military offenses.
Comments welcome. (Real names only, please.) 

What did the French Army know, and when did it know it?

The plot continues to thicken in the case of sexual misconduct by French peacekeepers in the Central African Republic. The New York Times reports here that French military authorities were advised within a month that soldiers had been buying sexual favors from children. Excerpt:
[UN] official, Gallianne Palayret, a human rights investigator who led the first inquiries into suspected abuse, said in a Skype interview that she had informed the French peacekeepers’ commanding officer and the unit’s legal affairs officer about the allegations in May 2014. This was the same month that she started interviewing children who might have been victimized and two months before the French authorities have said they first heard about the matter. 
Ms. Palayret first went public with her assertions Oct. 1 in the French news media. There has been no response so far from France’s Defense Ministry, and her account has not been publicly corroborated by others directly involved. 
Nonetheless, Ms. Palayret’s assertions, if accurate, would shed new light on a scandal that is the subject of investigations by two United Nations panels and by the French government, and they would raise fresh questions about when the French authorities first learned of the abuse and what action they took.
*   *   *
. . . Ms. Palayret said that she met the colonel in charge of the French peacekeepers in May and June 2014, requesting extra patrols where abuse was suspected to prevent any recurrence. She informed her superiors in the human rights office in Bangui of those meetings, she said. 
The French officers reacted with shock and disbelief, Ms. Palayret said. “They told me: ‘This is hardly possible because if one soldier did this, the other soldiers would kill him. This is not accepted in our ranks,’ ” she recalled. 
“They said they would take this very seriously, that they would inform Paris, that they would do as I asked to put more patrols and controls” around locations where children said the abuse had occurred, Ms. Palayret said, although she never ascertained whether they had done so.

More than a year after the French government said it first learned of the allegations and 16 months after Ms. Palayret says she brought the issue to the attention of French military authorities in Bangui, no charges have been brought. 
This story has been unfolding in bits and pieces for months, with separate responses from UN Headquarters in New York and the Office of the High Commissioner for Human Rights in Geneva. One subplot concerns a short-lived effort to retaliate against an OHCHR employee.

Thursday, October 15, 2015

The times are changing and military justice in Spain is modernizing, says the President of the Supreme Court

El presidente del Tribunal Supremo y del Consejo General del Poder Judicial, Carlos Lesmes (c), junto al general consejero togado, Eduardo Matamoros, y la fiscal general del Estado, Consuelo Madrigal, durante su intervención hoy en el acto solemne de apertura del año judicial en la jurisdicción militar. EFEFor the first time, on October 15, 2015, Carlos Lesmes, the President of the Supreme Court and the General Council of the Judiciary (CGPJ), presided over a public ceremony to mark the beginning of the judicial year in military jurisdiction.  He called for a collaboration among institutions for strengthening the rule of law and “peaceful coexistence.”

The official opening of the judicial year in military jurisdiction coincided with the publication in the Official Gazette of the new Military Penal Code, which together with the recent reforms of the Organic Law of the Judiciary, further integrate military jurisdiction into the ordinary judiciary of the State.  Article 3.2 of the amended Organic Law identifies, for the first time, “military jurisdiction as part of the Judicial Branch of State.”

Article 344 bis of the new law gives the General Council of the Judiciary an important role in the appointment of judges to the Military Chamber of the Supreme Court.  The CGPJ will now propose which judges from the Military Legal Body (Cuerpo Juridico Militar) should be appointed rather than the Ministry of Defense, as was the practice until now.  In addition, the CGPJ will have a decisive role in the appointment of other posts relevant to military justice.

No more squinting

The U.S. Court of Appeals for the Armed Forces is considering a rule change that would require the use of 14-point proportional type (such as Times New Roman) in all pleadings other than records of trial. This follows the practice in the Article III court of Appeals. See Fed. R. App. P.  32(a)(5). Comments are due by Nov. 13, 2015.

Wednesday, October 14, 2015

Special promotion for General Zafeiropoulos

Lt. Gen. Dimitrios Zafeiropoulos
Congratulations to Dimitrios Zafeiropoulos, Senior Vice-President of the International Society for Military Law and the Law of War, on his promotion this week from Brigadier General directly to Lieutenant General. Gen. Zafeiropoulos will be serving as Chief Prosecutor at the Athens Military Appellate Court.

Tuesday, October 13, 2015

Government appeal rejected in Singapore Armed Forces wrongful appropriation case

The Military Court of Appeal of Singapore has dismissed a prosecution appeal of sentence in a case involving failure to turn in several hundred rounds of unexpended blank ammunition. Details here. The government had asked the court to add detention to the adjudged sentence of a $5000 fine. The five-member court was headed by a judge of the High Court.

Monday, October 12, 2015

Which national courts should try international crimes?

The International Center for Transitional Justice has issued this report on a program they recently sponsored in the Democratic Republic of the Congo:
In cooperation with the High Judicial Council, the International Center for Transitional Justice (ICTJ) held a seminar today with senior representatives of the Congolese military and civilian judiciary and prosecutor’s office to discuss the dual jurisdiction of military and civilian courts over international crimes in the Democratic Republic of the Congo (DRC). 
The event brought together judges from the High Judicial Council, the Supreme Court of Justice, the Office of the Attorney General of the Supreme Court, as well as judges from the courts of appeals, military courts, attorney general offices and military prosecution offices from North and South Kivu and Orientale Province. 
Despite the official end of war, the DRC continues to be plagued by violence, with high rates of killing, rape, and forced displacement of civilians by armed groups. So far, the Congolese courts have faced a number of obstacles in prosecuting these crimes. 
Following the adoption of Organic Law N. 13/011-B in 2013, civilian courts, namely the Courts of Appeals, were granted jurisdiction over serious crimes, such as genocide, war crimes, and crimes against humanity, committed in the DRC. 
Previously, only Congolese military courts could prosecute these crimes, since the adoption of the Military Justice Code of 1972. As a result, military judges have developed a certain expertise in prosecuting these crimes. 
While international crimes are now under a dual jurisdiction of both the military and civilian courts, only a very limited number of such cases have been initiated before the Courts of Appeals. 
Seminar participants discussed the importance of sharing their experiences in order to overcome the institutional, political and legislative challenges and obstacles faced by civilian courts in investigating and prosecuting international crimes. They also analyzed the role of the High Judicial Council in supporting and facilitating cooperation between civilian and military courts in prosecuting cases. 
"'Experience sharing' between civilian and military jurisdictions is essential to overcoming the current technical and operational obstacles faced by civilian courts when investigating and prosecuting international crimes," said Anna Myriam Roccatello, ICTJ Deputy Program Director. 
Participants discussed the implementation of the Rome Statute of the International Criminal Court, the law on international crimes to be applied by the civilian courts, as well as criteria for the direct application of Rome Statute provisions by military courts. 
"Although the 2013 law on court organization and functioning grants the Courts of Appeals jurisdiction over genocide, war crimes and crimes against humanity, it does not explicitly outline the applicable legal provisions. The (civilian) Criminal Code does not include provisions on international crimes, or their definition," explained Myriam Raymond-Jetté, ICTJ’s Criminal Justice Program Officer in the DRC. 
Reflecting on the progress, challenges and obstacles of the dual jurisdiction system, participants issued a set of recommendations, addressed to Congolese institutions, regarding: the legislative reforms needed to harmonize national law with the Rome Statute; the monitoring of cases of international crimes initiated before military courts; the initiation of investigations and prosecution of international crimes by the civilian courts; and needed coordination between civilian and military courts in the implementation of their dual jurisdiction. 
The seminar was organized by ICTJ, in cooperation with the High Judicial Council and the United Nations Development Programme, with the financial support of the European Union.

Amending the Geneva Conventions to account for the technology age

A post on The Register asks: Cyberwar rules of engagement: Military, law bods mull update.  Is 'wartime metadata collection' a human rights violation?

Plans are underway to update a putative Geneva convention for cyberwar, put together by experts in international law and backed by an Estonian-based NATO-run military think tank.

The Tallinn Manual 2.0 is on track for publication in the second half of 2016, following a drafting conference of legal experts in the Estonian capital this week. The original manual provided a handbook on how principles of international law could be applied to conflict in cyberspace, which military strategists consider to be the fifth dimension of warfare (land, air, sea and space being the other four).

The original Tallinn Manual on the International Law Applicable to Cyber Warfare ruled that the Stuxnet worm may have been "armed attack", as previously reported. Victims of similar future attacks would be legally clear to retaliate proportionately in the immediate aftermath of an assault as an act of self-defence, in order to frustrate follow-up assaults.

Sunday, October 11, 2015

We're not Bolivia, for God's sake

© Paul Hackett A British general has warned that newly-elected Labour leader Jeremy Corbyn could face “a direct challenge” from the army if he becomes prime minister, it was reported in the Sunday Times in London on September 20, 2015.  The unidentified general said Corbyn, who opposes Britain’s Trident program and supports withdrawal from NATO, would face “direct action” if he tries to downgrade the army.  The general added that a Labour victory under Mr Corbyn in 2020 would result in “mass resignations at all levels” and there would be the “very real prospect of an event which would effectively be a mutiny”. While Labour publicly refused to comment on the views of what it described as an “anonymous general”, in private senior sources described the remarks as “pretty outrageous”.  “You can’t have serving officers effectively threatening a coup against an elected government,” they said. “This general seems to have forgotten that we live in a democracy.” A Ministry of Defense source said it was unacceptable for a serving officer to make political comments about a potential “future government.”

Even some Conservatives expressed disquiet. The right-wing Tory Member of the European Parliament, (who by the way,  happens to have been born in Peru) Daniel Hannan, described the general as an “idiot” memorably stated: “We’re not Bolivia, for God’s sake.”

Le courage de ses convictions

Il n’est pas toujours facile d’avoir le courage de ses convictions, surtout dans le domaine de la justice militaire. Le Service canadien des avocats de la défense conteste par voie de requêtes devant une cour martiale permanente la constitutionnalité des articles 60(2) et 69(1) de la Loi sur la défense nationale (Loi) dans le dossier Wade Pear and Her Majesty The Queen et les articles 101.1 et 158.6 de cette même Loi dans le dossier 2Lt Caicedo, C.W. and Her Majesty The Queen. Les deux requêtes sont rédigées en anglais.

Les articles 60(2) et 69(1) permettent à la justice militaire de poursuivre un civil pour une infraction militaire qu’il a commise alors qu’il était membre de la force militaire. Dans le cas présent il y a plus de deux ans que M. Pear a quitté les Forces armées canadiennes et les infractions ont été commises il y a près de trois ans. Il ne s’agit que d’un seul événement survenu lors d’un diner régimentaire. L’accusé se serait retrouvé en état d’ébriété, aurait tenu un langage offensant à l’égard de deux officiers supérieurs.  Son comportement lui a valu trois chefs d’accusations mineures.

Les arguments des procureurs de M. Pear sont intéressants. Ils se  réfèrent à la décision de la Cour Suprême du Canada dans l’arrêt R. c. Généreux (1992) 1 RCS 259, dans lequel la Cour justifie l’existence du système parallèle de justice militaire canadien pour des questions se rapportant directement à la discipline, à l’efficacité et au moral de la force militaire et par la nécessité de sanctionner rapidement les manquements à la discipline. Ils soutiennent que, dans le cas présent, non seulement les infractions en cause sont mineures, mais que la poursuite d’un civil devant un tribunal militaire 4 ans après le manquement disciplinaire n’a plus de lien direct avec la discipline militaire et plus d’impact direct sur la discipline ou l’efficacité opérationnelle de son unité ou d’autres unités.

En conséquence, les articles 60(2) et 69(1) ont une portée trop large, excessive, qui viole le droit constitutionnel à la liberté et à la sécurité de la personne garanti par l’article 7 de la Charte canadienne des droits et libertés (Charte).

Dans le deuxième dossier, l’accusé fait face sous l’article 101.1 à 4 accusations d’avoir fait défaut de respecter les conditions de remise en liberté imposées par son Officier Commandant. Encore là la contestation prend sa source dans l’article 7 de la Charte qui stipule qu’une personne ne peut être privée de sa liberté qu’en conformité avec les principes de justice fondamentale qui requièrent une audition devant un juge indépendant et impartial. Or l’article 158.6 prévoit une révision des conditions de remise en liberté par le supérieur de l’Officier Commandant, donc par la chaîne de commandement qui n’offre pas les garanties constitutionnelles d’indépendance et d’impartialité.

L’article 31 du projet de loi C-15 voté, mais non encore en vigueur, prévoit que les conditions de remise en liberté imposées par la chaîne de commandement pourront être révisées par un juge militaire. Pour l’instant l’accusé dans ce dossier qui ne bénéficie pas de cette disposition législative demande une déclaration d’inconstitutionnalité de l’article 158.6 et le rejet des 4 chefs d’accusation portés contre lui. À suivre....