Sunday, January 31, 2016

Outline of Singaporean military justice system

The Straits Times has published a useful summary of Singapore's military justice system. The distinction between the treatment of military and civilian-type offenses by military personnel is noteworthy, as is the reliance upon civilian judges and the absence of recourse to the highest civilian appellate court. Excerpt:
Depending on the offence, soldiers are brought before either a Judge Court Martial or Panel Court Martial.

The former, presided over by a district judge from the State Courts, deals with civil offences such as theft and drug consumption. 
In the latter, the judge is joined by two senior military officers on a panel which deals with "purely military offences", including Awol and desertion, said [attorney Amolat] Singh
Like the civilian courts, soldiers who are unhappy with their conviction or sentence can appeal to the Military Court of Appeal - the highest authority. 
They can also petition the Reviewing Authority of the Armed Forces Council, which consists of the Chief of Defence Force, a Service Chief, and the Ministry of Defence's permanent secretary for defence development. The Reviewing Authority can quash a court-martial sentence or reduce it.

Retired Pakistani JAG officer explains issues in Supreme Court litigation

The lawyer who sought to persuade the Supreme Court of Pakistan to entertain his pro se petition concerning military court judgments involving both civilians and serving personnel, has cogently explained the situation for The Nation. Here is an excerpt from the article:
Col Inam Ul Raheim, a former Assistant Advocate General Pakistan Army, had filed the petition in person under Article 184 of the Constitution in the Supreme Court last year.
He prayed that at least one judicial review before the apex court may kindly be provided to all the convicts of military courts whether they are regular members of the armed forces or the civilians subjected due to recent amendments in the best interest of justice.

Saturday, January 30, 2016

Military Justice Project @ NUS

The Straits Times reports on a worthwhile development at the National University of Singapore: creation of a Military Justice Project to augment official defending officer (DO) training for non-lawyers in SAF courts-martial. Excerpt:
Soldiers can also choose to hire lawyers outside the SAF. Among these legal professionals, there is debate over whether the training for DOs is sufficient. 
Veteran criminal lawyer Amolat Singh, who conducted the DO course pro bono for three years until it was revised, felt that the training adequately equipped DOs for the duties they typically perform. 
He pointed out that most military court cases are not complex and servicemen often plead guilty. 
"You can run a one-day or a five-day course; at the end of the day, the quality of the DOs comes from practice," said Mr Singh, who was an army officer for 15 years. 
"It's just like how there are many lawyers who after law school don't do any litigation. After a while, these lawyers can also lose touch." 
Criminal lawyer Anand Nalachandran pointed out that the system at least ensures every soldier will get some form of representation. 
"In the civilian court, if an accused person is unable to afford or engage counsel, he may apply for legal assistance - but if pro bono aid is not granted, he may be unrepresented," said Mr Nalachandran. 
But lawyer Laurence Goh Eng Yau, who has more than two decades of experience with military cases, said there was a perceived "imbalance" in the system because DOs tend to be junior officers with no legal background.

New allegations against peacekeepers in Central African Republic

The UN Office of the High Commissioner for Human Rights has made public additional allegations of misconduct by peacekeepers in the Central African Report. The suspects are members of European Union troop contingents from Georgia and an unnamed European country. The New York Times has details here. The events are alleged to have occurred in 2014-15. Plainly the UN is not yet on top of the problem of peacekeeper discipline. The Secretary General and the High Commissioner have spoken out but the question now is whether the strong measures proposed recently by the SG's independent panel will be implemented or simply talked about.

Is the military part of the civil service? Not everywhere

Odd question, right? Consider this from the Philippines:
The Senate inquiry into the January 2015 Mamasapano encounter was reopened and closed. As usual, officials ignored the unique structure of our government—that the Philippines may be the only country in the world where the military is only a part of the civil service. 
In all other countries, “government service” is divided into two branches: the civil service and the military service. In the Philippines, the civil service is the single branch of the government; the military service is only a division termed the closed career service. 
A closed career service has its own rules on recruitment, promotion, salary system, retirement, etc. governed by a special law passed by Congress. In the executive branch, only the Armed Forces of the Philippines and the Department of Foreign Affairs are in the closed career service. All other government agencies are in the open career service pursuant to Presidential Decree No. 807 (the Civil Service Decree of 1975).
Before 1975, our government service was similar to that of the rest of the world. Republic Act No. 2260 (the Civil Service Law of 1959) put the military under the exempt service, meaning the military was separate from the rest of the civil service. 
This unique structure of our government, with the military a mere branch of the civil service, should have ensured the seamless handling of the Mamasapano encounter. It should have been a nonissue if we had recognized that the military is but a part of the civil service, and simply applied established doctrines in public administration.

Lawyer lacks standing in Pakistan Supreme Court writ case

The Supreme Court of Pakistan has dismissed for lack of a standing a petition filed by an attorney who has represented military personnel convicted by courts-martial. The attorney had asked the court to set up a special forum to review court-martial cases. The court indicated that it could review such cases but that the lawyer had no standing. Details here.

Thursday, January 28, 2016

More news from Pakistan

The Sindh High Court has called for government submissions on whether a politically-charged murder case should be transferred to a military court. The provincial government, bowing to pressure (including large demonstrations), favors transfer. A basic question of judicial independence seems to be presented: can demonstrations force judicial action? Details here from The Express Tribune

Ex-president's son facing possible court-martial in Sri Lanka for moonlighting and unauthorized foreign travel

A Sri Lankan Navy lieutenant who is the son of former President Mahinda Rajapaksa is under investigation for having taken nearly 30 foreign trips without permission and having been head of a private company while on active duty. The disposition decision is in the hands of the incumbent president, who succeeded the officer's father and is commander in chief of the island state's armed forces. Details here.

A reasonable observer might wonder whether President Rajapaksa's successor, Maithripala Sirisena, is in a position to be impartial.

Never shoot a camel, but if you do, don't film it

American military lawyers are familiar with the archaic-sounding offense of abusing a public animal. Fast forward to 2016. Two members of an elite unit of the Israel Defence Forces have been punished for shooting a camel and failing to report it. The Times of Israel reports:
One of the soldiers, who was filmed firing at the animal in a video that later went viral, was sentenced to four months in prison along with a suspended sentence. He was also demoted to the rank of private. 
A second soldier who was in the car at the time of the incident was sentenced to two months, and was also demoted to the rank of private. 
“The sentence reflects the severity with which the IDF sees the offense of cruelty to animals, especially when it involves using a military-issued weapons,” the IDF said in a statement. 
The two, members of the elite Duvdevan infantry unit, were arrested in December after footage they took of the shooting went viral.
What sentence would you have awarded? 

An indefensible ruling in Pakistan

A two-judge bench of the Lahore High Court has dismissed challenges to three death penalty cases from military courts. According to this account, the court ruled without requiring the government to respond, and held that the petitioners had not demonstrated a reason to set aside the convictions. The petitioners' counsel, on the other hand, noted that they had not been able to obtain a copy of the charges or trial proceedings. It seems unreasonable to deny access to the critical documents and then find that the petitioners have not shown the presence of some legal error.

"What we have here," to quote the prison warden, above left, in Cool Hand Luke, "is a failure to communicate."

The case will now go to the Supreme Court of Pakistan.

Wednesday, January 27, 2016

Police v. defense forces in South Africa

There's a very nasty controversy boiling over in South Africa, involving a standoff between officers of the South African National Defence Force and the South African Police Service. This article lays it out, and it's not pretty:
Military officers who swore at Oudtshoorn police and threatened to bulldoze their police station are finally facing military and civilian prosecutions. 
In November, a general and two colonels made their first appearance before a court-martial, with charges that could mean up to 10 years in jail. 
And last week, two of them failed to turn up to face charges in a civilian court. They face arrest if they fail to do so again. 
The cases are against Brigadier-General Xolani Mankayi, Colonel Nkhabu Nthejane and Lieutenant-Colonel Siphiwo Mphahlwa. Mankayi is chief of staff at Infantry Headquarters, Nthejane is commander of the Infantry School in Oudtshoorn, Western Cape, and Mphahlwa is at Defence Works Formation. 
It is understood that none have been suspended. 
The charges arise from an incident in May last year when the SAPS arrested SANDF members at an unlicensed shebeen in Bongolethu, Oudtshoorn. 
They were apparently celebrating after a passing-out parade at the Oudtshoorn base that was aimed at showing off their knowledge of military discipline. 
The three officers are accused of gathering two platoons in armoured vehicles and turning up at the police station, swearing at and threatening policemen, and then successfully demanding the release of their colleagues.

"And they're off . . ." -- journalists' trial begins in Cameroon

It was an inauspicious start yesterday to the military trial of three journalists in Yaounde, Cameroon on charges of “non-denunciation” or concealing information dangerous to State security. This account observes:
All the lawyers for the accused complained that they did not have enough information on the trial. They argued that while the prosecution had a huge charge file, they had virtually nothing. 
In response, Mrs. Justice Mbem Yvonne Léopoldine épouse Akoa requested them to respect the instructions of the President of the Yaounde Military Tribunal by applying for copies of the exhibits they needed, while being ready to pay for the cost. The trial was later adjourned to February 19, 2016, for each accused to be individually notified of the charges against them and for defence counsel to present lists of their witnesses.
It's not clear whether the prosecution has already disclosed its own list of witnesses.

Tuesday, January 26, 2016

Navdeep Singh speaks out on women in the Indian Armed Forces

Global Military Justice Reform contributor Major (ret) Navdeep Singh has written this powerful essay on the importance of making equal opportunity a reality for women in the Indian Armed Forces. He argues:
The nation raises a toast every time women march in full military regalia. Empowerment, equality, equal opportunity et al are words often used. Office holders in the higher echelons of governance speak of ‘Nari Shakti’ and the media laps it up.

But irony is at play, behind the buzzwords. In reality, there is much reluctance within the defence services to embrace women.

Nigeria's (mostly) closed courtroom

Eight members of the Nigerian Army are being tried by a court-martial. As reported here, the trial is closed to the public and the news media, but no so closed that the photo at left could not be taken . . .

Schedule update

Gene posted about this event.

The ABA Standing Committees on Armed Forces Law and Law and National Security and the ABA-affiliated Judge Advocates Association will hold a panel discussion on the Obama administration's military justice legislative proposal on January 28, 2016. The program will run from 6:00 to 8:00 p.m.
This is what I received today.

"The weekend snow and compressed work week have led the sponsoring entities to reschedule the Thursday evening Military Justice panel. We are reviewing potential February dates and will notify all as soon as a new date is finalized. Thank you for your interest in this matter."

Coast Guard military justice bill proposed in Bangladesh

The Dhaka Tribune reports on a bill that would, among other things, authorize the death penalty for mutiny in the Bangladesh Coast Guard:
A bill was placed in parliament yesterday keeping the provision of sentencing a person to death or other kinds of punishment for his involvement, whatsoever it may be, in revolt or mutiny. 
Home Minister Asaduzzaman Khan Kamal placed the bill styled Bangladesh Coast Guard Bill 2016 in the parliament and the bill was sent to the standing committee on Home Ministry for further scrutiny. 
According to the bill, there will be 21 posts including a director general in the coast guard. 
The bill said there will be three courts named Special Coast Guard court, Special Summary Coast Guard court and Summary Coast Guard court. 
On the objective of the bill, it said the present act is very brief and that’s why coast guard force has to face complexities on various occasion. That is why it has become necessary to formulate the law.
The bill is not available on the parliamentary website. The Coast Guard Act, 1994, appears here.

Lebanon's military court: abolish or fix?

Lebanese parliamentarians are rolling up their sleeves concerning the country's Military Court of Cassation. The question is whether they will simply tinker with the system, make dramatic changes in the court's jurisdiction (such as forbidding it to hear cases involving civilians), or abolish it altogether. Here's an excerpt from a report in The Daily Star:
The parliamentary Justice and Administration Committee Monday began discussing a draft law relating to the Military Tribunal, including the possibility of amending some provisions with the aim of addressing flaws in the tribunal’s work. 
The committee’s meeting comes as the Military Court of Cassation is currently at the center of a heated debate, with calls by the Future Movement and its March 14 allies for the dissolution of the court altogether, or at least the reduction of its jurisdiction following its controversial decision earlier this month to release ex-Information Minister Michel Samaha, convicted in a terror plot, on bail. 
Committee Chairman MP Robert Ghanem said the lawmakers began discussing a draft law relating to the Military Tribunal he had presented to Parliament in March 2012.* He said the committee’s move comes after it had studied draft laws relating to the judicial court, penalties and penal courts. 
“We are looking at the issue [justice] as a whole and not partially. Therefore, justice is indivisible, be it in the judicial court or in the extraordinary court. It should be the same,” Ghanem said after the meeting that was also attended by the head of the Higher Justice Council Judge Jean Fahd and representatives from the Defense Ministry and the Beirut Bar Association. 
Following the public and political uproar over Samaha’s release, Ghanem admitted that there is a flaw in the Military Tribunal’s work that needs to be addressed. 
“We have put this draft proposal [on the Military Tribunal] on the committee’s agenda for study. If there is any flaw, and certainly there is a flaw, it should be rectified either by amending provisions or procedures in order for justice to be the same and to ensure each person’s essential right to defense as stipulated by human rights,” he said.
* Sic. Nearly four years to get a draft bill discussed in committee? [Footnote added.] 

Monday, January 25, 2016

Canadian military justice system has evolved 'separate and apart' from civil society and the gulf widens!

justice canadaThe Canadian military justice system is far removed from the civil society it is supposed to represent and defend, says Professor Michel Drapeau published  in Opinion Piece - Power and Influence magazine - Ottawa January 25, 2016 .  The author summarizes some of the presentations made at the International Military Law Conference which took place at the University of Ottawa on November 13, 2015.  The author concludes as follows:
 Over the past decade or so, attempts to modernize the NDA to bring it more in line with global trends or our own civilian penal system have been serially resisted by our own military. Several reforms made as a result of pressures were initiated from outside, including the judiciary but not within DND. At present, the Canadian penal military justice system mitigates the right to equality before and under the law as well as the right to equal protection and benefit of the law guaranteed by section 15 of the Canadian Charter of Rights and Freedoms.
It is  now imperative that a full-scale independent systemic review of the Canadian military justice system be undertaken to ensure that it corresponds to strict functional necessity. That is without encroaching, as it currently does, on the right of soldiers and on the jurisdiction that can and should belong to ordinary civilian courts. In the final analysis it should bring the military justice system more in line with contemporary Canadian legal doctrine and principles and prevent it from falling further behind global trends in the contemporization of this traditionally stagnant body of law.
 The conference has confirmed the urgent need for the 42nd Parliament to embark upon a review which will lead to its revaluation and rejuvenation to ensure its harmony with the ordinary law of Canada. Such reform of the military justice system would have implications not only for those in the military, but also for the rightful place of the Canadian Forces within Canadian society."

Desertion and the IDF

The Israeli Knesset is considering legislation that would lengthen the time of absence needed to qualify as desertion (18 months, up from 21 days) and shorten the maximum permissible punishment (from 15 years to 7 (10 in time of war)). Details here. Excerpt:
Deputy Chairman of the Knesset Foreign Affairs and Defense, Colonel MK Moti Yogev (Jewish Home [party]) welcomed the new amendments: "The IDF’s AWOL law to imprison a soldier for 15 years is a disproportionate sentence, which is why the Military Advocate General and the Committee approved the initiative for a reduced punishment.” 
“In reality, the amount of AWOL soldiers is not so high and circumstances of desertion are usually situational, caused by socioeconomic difficult or due to lack of adjustment as a result of being part of large Aliyah waves. This is what led the Commission to approve a reduced threshold of maximum punishment and to also extended the duration of retaining a soldier who did not intend to return to service for 18 months instead of 21 days," said Yogev.

Comments policy reminder

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The Editor

A peek inside China's military courts (1)

Parole & sentence reduction platform
Although decisions of China's military courts are not yet uploaded onto the Supreme People's Court's database, the careful observer is able to observe (albeit indirectly) some military court decisions through decisions of the civilian courts.  This blog will report on these cases from time to time.  One set of those decisions are decisions of civilian courts to reduce the sentences of persons convicted by the military courts but serving their sentences in civilian prisons, posted on the Supreme People's Court's platform on commutation, medical parole, and parole. That platform was established to provide transparency (and prevent corruption) in those procedures, as detailed in this blogpost (by this contributor).

According to discussions by Chinese lawyers focusing on military cases, military personnel sentenced to over 5 years incarceration are dishonorably discharged and transferred to civilian jails (with certain exceptions). Because court decisions concerning parole and sentence reduction are now required to be made public (with the usual exceptions), the decisions involving persons convicted by the military courts provide us with a peek inside the military courts.  Among the recent decisions found:
  • a PLA Navy man, originally convicted in 2002 to life in prison by a military court for providing intelligence to a foreign power,  who had his sentence reduced, so that he will have served a total of 26 years
  • a soldier convicted in 2012 of murdering his bride on their wedding night, who was also originally convicted to life in prison and had his sentence reduced, so that he will have served a total of about 23 years
  • a former captain convicted in 2006 of embezzlement and having huge assets of unknown origin and sentenced to 11 years in prison, is now released on parole
Editor's postscript: Susan Finder's posts about China, like the one above, continue to provide extraordinary information under circumstances where transparency could be far better. Brava and encore.

Justice (ret) Létourneau: Canadian military penal system -- antiquated and unfair


In an OPINION PIECE published in Hill Times, the Canadian Parliamentary Precinct weekly, the Honorable Gilles Létourneau, Q.C. writes that the Canadian military penal system is both antiquated and unfair. He goes on to write, 

"At a time when winds of change and reform are blowing around the world on military justice systems, including the systems of most of our major allies, with a view to improving the fairness of what have now become antiquated and unfair systems, especially in peace time, it appears now that the Canadian penal military justice system is running against the tide to the detriment of both our entrenched values and the members of the military who, like police officers, are Canadian citizens in uniform. Yet members of the military are subjected to a treatment different from the one afforded to police officers whose role is the enforcement of criminal law for the better protection of the public.
The consequences of this differential treatment for members of the military are too numerous to enumerate at this stage. However chief among them is the loss of a jury trial constitutionally afforded to all Canadian citizens but them. The time has come for the Canadian Parliament to assume its legislative responsibilities with respect to penal military justice. The enforcement of criminal law at least for crimes committed in Canada in peacetime should be left to civilian authorities and tribunals who have better resources and greater expertise and solid bonds of independence and impartiality from political influence and the executive.

Parliament should set up a Committee of independent experts to review the penal military justice system and the Act so as to foster discipline in the military in a manner that is respectful of the constitutional rights and freedoms guaranteed by the Charter, the fundamental principles of justice both developed at common law and under the Charter as well as the values cherished by Canadians."

Some thoughts on lawyering

From the perspective of military legal advisors, law serves as an enabler in achieving logical military outcomes. Rather than simply focusing on a restatement of law, it is important to offer insight into how Judge Advocates (military lawyers) think about the relationship between law and effective military operations.
Based on the consistency between legal compliance and operational effectiveness, law should not be thought of as impeding military operations. While there are legal and moral reasons a military commander seeks to ensure the conduct of hostilities and other aspects of military operations comply with international and domestic law, first and foremost such compliance enhances the probability of mission accomplishment.
So begins an article by Chris Jenks and Geoffrey S. Corn, The transcendent influence of law in military operations, on OUPblog today.

Right to a jury trial: new appeal launched before Court Martial Appeal Court of Canada


Master Corporal (MCpl) D.D. Royes was charged under section 130 of the National Defence Act for having committed a sexual assault contrary to section 271 of the Criminal Code of Canada.  At trial, see R. v. Royes D.D., 2013 CM 4034, Royes was found guilty and sentenced to imprisonment for a period of 36 months.  A constitutional appeal was made by counsel for defence to the Court Martial Appeal Court [CMAC] seeking an order declaring subsection 130(1) of the National Defence Act to be of “no force and effect”  because it is inconsistent with  subsection 11(f) of the Canadian Charter of Rights and Freedoms and cannot be saved by section 1 of the said Charter. 

Hearings by Court Martial Appeal Court - January 22, 2016 

The appeal was heard on  Friday January 22, 2016 the CMAC (Dawson, Trudel and Rennies J.JA)

Background

Subsection 11(f ) the Charter of Rights and Freedoms reads as follows 
                    Proceedings in criminal and penal matters
             11. Any person charged with an offence has the right
(a) [ . . . ]
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) [. . ..]
In Mackay v. The Queen [1980] 2 S.C.R. 370, 380, a pre-Charter case, the Supreme Court of Canada held that the trial of a soldier by a military tribunal did not offend the Canadian Bill of Rights guarantees of equality before the law. However, in R. v. MacDonald (1983) 140 D.L.R. (3d) 620 (Court Martial Appeal Court), it was held that, to come within the phrase 'offence under military law' in subsection 11(f), an offence must be with the definition in the National Defence Act and have a 'military nexus'.

Sunday, January 24, 2016

Is there any reason for states not to adopt the UCMJ, or . . .

Do you have a National Guard, Territorial Army, or some similar part-time Soldier, Sailor, Airman, Marine, organization?

The discipline of members of the U.S. Army and Air National Guard is conducted under the  individual state's code of military justice, e.g., West Virginia's code.  When Guard members are activated into federal service under Title 10 U. S. Code, sometimes called being federalized, they are covered under and disciplined in accordance with the federal Uniform Code of Military Justice (10 U. S. Code 801).  That's the simple answer, but this link will show how there can be complexities.

All states have some form of military justice code which are generally similar.  They are often modelled on the UCMJ or the Model code.  A difference from state to state is that prosecution of military offenses actually happens in a civilian court before a civilian judge rather than at a court-martial.

There have been criticisms of how the Guard is disciplined, or in many cases not disciplined.  Some time ago now, a significant issue arose in Alaska.  Actually, the issues are not limited to Alaska.  See, e.g., here or here or here or here, again in regard to the investigation and disposition of sexual offenses [note, I'll say no more on the specifics--hint, think privilege].  An official report on Alaska is here.  The surfacing of problems should come as no surprise because the underlying issues (re)gained a lot of traction across the active, Reserve, and Guard force around 2006 and concern and attention has snowballed (sorry, I'm snowed in here :-)).  2KTUU reports:
A bill that would update Alaska's Military Code of Justice and strengthen penalties for certain violations has advanced from the House Judiciary Committee.
 The bill would update a code that has been largely unused by the Alaska National Guard. The Guard has not used it to court martial a service member since 1955.
For a good discussion of the topic see Major Robert L. Martin, Military Justice in the National Guard: A Survey of the Laws and Procedures of the States, Territories, and the District of Columbia,  ARMY LAW (Dec. 2007),

Follow-up on the news from Taiwan

Remember how Taiwan abruptly abolished its military justice system a two years ago after a soldier died of exhaustion while in unwarranted disciplinary confinement? Well, that soldier's sister has just unhorsed a long-time legislator in a three-way election. Details here. Excerpt:
Hung Tzu-yung (洪慈庸), one of five constituency legislative candidates representing the New Power Party (NPP) that was formed last year, defeated veteran Legislator Yang Chiung-Ying (楊瓊瓔) of the Kuomintang (KMT) in Taichung City's third electoral district Saturday. . . 
Hung, 33, is the sister of Hung Chung-chiu (洪仲丘), a soldier whose high-profile death three years ago turned the spotlight on social justice in Taiwan. 
The 23-year-old conscript died of heat exhaustion on July 4, 2013 after being forced to do strenuous exercise in a detention facility that he should not have been confined to in the first place. 
Hung Chung-chiu's death raised questions of human rights violations in the military, sparked mass protests in Taiwan, led to the prosecution of several military officials and spurred major legal reforms such as the abolition of military courts during peacetime. 
The amended law also stipulated that military personnel under punishment or filing an appeal against punishment should not be subjected to discrimination or unfair treatment.

Permyakov pleads guilty again, but this time to murder

Valeriy Permyakov, the Russian soldier who killed seven members of an Armenian family, has pleaded guilty to murder in an Armenian civilian court sitting at the Russian military base in Armenia. He previously pleaded guilty to desertion and other offenses in a Russian court-martial. Now the question is what sentence he will receive from the Armenian court -- and where he will serve it (or be executed if he is sentenced to death). Given the way this case has unfolded in a legal tug-of-war between the two countries, it seems likely he will be transferred to Russia first for service of his 10-year court-martial sentence, since the Russian Army was the first to try him (Russia having dragged its feet to provide the investigative dossier to Armenian prosecutors).

Pipeline vandalism court urged in Nigeria

Vice Admiral Ibak-Ete Ekwe Ibas
Chief of Naval Staff
In Nigeria, vandalism of oil pipelines has become a very serious problem. Now it seems -- from this Punch article -- that the Chief of Naval Staff favors creating a special court just for such cases. The article does not make clear whether the proposed court would be military to civilian.

Obstacle course to judicial review in Pakistan

The task of getting before a civilian judge to obtain review of death sentences passed by Pakistan's military courts can apparently be daunting. In the three cases described in this article, a Lahore High Court judge sitting at Rawalpindi rejected the registrar's contention that the cases were inadmissible. Excerpt:
Justice Abdul Sami Khan admitted the petitions filed by Javaid Iqbal Ghuari, Kalsoom Bibi, and Said Zaman after their lawyer Advocate Colonel (retired) Inam-ur-Rahim maintained before the court that due course of law was not followed when they were tried in military courts. 
The office of the LHC registrar had raised an objection against the petitions, saying that writ petitions could not be filed in the high court against military court verdicts. After hearing the arguments of Advocate Rahim, however, Justice Khan admitted the petitions and set January 25 for the next hearing.

Saturday, January 23, 2016

Military courts and deterrence

Pakistan has had military courts authorized to try civilians for a year now. The Express Tribune reports:
Senior lawyer Salim Shah Hoti on Saturday said that ‘facilitators’ found aiding terrorists in terror attacks, are liable to be punished with the death penalty according to the law of the land. He added that those arrested by security forces for their involvement in the Bacha Khan University carnage will be dealt with accordingly. The interior ministry, he said, would send their cases to military courts for trial as the same law was applicable to them. He stated that military courts were set up after the passage of the 21st Amendment in January 2015 to adjudicate upon terror-related cases. PM Nawaz [Sharif] had abolished the moratorium on death penalty in terrorism-related cases soon after assuming office.
The new courts, and the ensuing capital sentences and hangings, seem not to have deterred serious crimes.

Quaere: since the 21st Amendment, unless extended or made permanent, will expire in a year's time, what steps have been taken to bring the civilian courts up to speed? Deficiencies in those courts was one of the core reasons cited for enactment of the 21st Amendment.

And consider this postscript from The Huffington Post:
“Military trials in Pakistan are secret, opaque and make a mockery of Pakistan’s domestic and international fair trial obligations,” Sam Zarifi, the [International Commission of Jurists'] Asia Director, said in a statement. “Pakistan faces a genuine threat from militant group... but militarizing the judicial process will not lead to justice and it will not control terrorism. This is the lesson from around the world.”

From the editor's window

In case you were curious, at left is the current view from the editor's glass-enclosed office high (two stories) above snow-swept Global Military Justice Reform Plaza, corner of Grove and High Streets, New Haven.

Tattoos and military service

An 18-year-old Arkansas man has been barred from enlisting in the U.S. Marine Corps because he has a tattoo with the Confederate flag (and the phrase "Southern Pride"), according to this report.

Editor's suggestion: If he really wants to enlist, he might consider having the tattoo removed.

Mufti urges abolition of military court

Mufti Malek Chaar
The mufti of Tripoli and northern Lebanon, Malek Chaar, today asked that the Lebanese military court be abolished or that it change shape because it cannot be arbitrary and permanent. L'Orient | Le Soir has the story here. The move for abolition has been sparked by, among other cases, the decision to free former government minister Michel Samaha on bail.

Military justice by other means

Butch Bracknell
Retired Marine Corps officer Robert G. "Butch" Bracknell has an excellent Lawfare post here about whether Defense Secretary Ashton B. Carter should reopen retired General David H. Petraeus's "grade determination" and demote him to Lieutenant General. The Army recommended against doing so. Whether or not Gen. Petraeus's conduct was satisfactory in the four-star grade he held when he retired, there is, it would seem, a serious question as to whether it is simply too late to revisit the matter.

The governing regulation, AR 15-80, permits the government to revisit a grade determination “[i]f substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination.” Here is what the regulation actually says (¶ 4-1):
c. Officer grade determinations are normally accomplished at time of retirement or disability separation, and the officer’s grade is fixed at that time. A grade determination can be reopened by the Army after separation— 
(1) If the separation and/or accompanying grade determination was procured by fraud. 
(2) If substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination. For example, if an officer’s misconduct while still on active duty is documented by memorandum of reprimand, nonjudicial punishment, or conviction after retirement, and such misconduct was not discoverable through due diligence, a new grade determination may be completed. 
(3) If a mistake of law or mathematical miscalculation led to an improper separation or grade determination.
Is it plausible to treat the years that have elapsed since Gen. Petraeus retired (in 2011) as "a short time"? (Comments are welcome on this issue, but, as always, please use your real name when commenting.)

Nancy A. Youssef and Shane Harris have also written about the controversy in The Daily Beast here.

Alaska military justice bill moves ahead

In the United States, each state has its own code of military justice that is applicable to national guard troops that have not been called into federal service ("Title 32" status v. "Title 10" status). Alaska has a project underway to update its antiquated, pre-statehood law on the subject. The Associated Press has this report on the bill's progress through the legislature. The bill is now headed for floor consideration by the state House of Representatives.

How many cases come through the state court-martial system? According to the AP, there seem not to have been any courts-martial under the Alaska Code of Military Justice since its enactment in 1955. According to National Guard Capt. Forrest Dunbar, who has been involved in the revision:
“We acknowledge that there could be sort of a one-in-a-million, who knows what the exact proportion is, but a very, very unlikely chance where we would have an enemy here in Alaska and for whatever reason the federal government hasn’t responded and federalized us and in that brief window one of our soldiers could commit one of these very specific offenses. In which case we would be limited to ten years in prison.”
State codes of military justice are strongly influenced by the federal model found in the Uniform Code of Military Justice. If Alaska enacts the current proposal, it -- like other states -- will be back at it in a year or two once Congress acts on the Obama administration's recent proposals for wide-ranging changes in the UCMJ.

Friday, January 22, 2016

"Non-denouncing" journalists on trial in Cameroon military court

The Committee to Protect Journalists has denounced Cameroon's trial of three journalists on charges of not bringing information to the government. (You read that correctly.) Here's CPJ's statement:
The Committee to Protect Journalists calls on Cameroonian authorities to drop all charges against three journalists for failing to disclose information to the state. The three are scheduled to stand trial before a military court on Friday. 
Baba Wame, president of the Association of Cyber Journalists, Rodrigue Tongue, a reporter who formerly worked for the privately owned daily Le Messager, and Félix Cyriaque Ebolé Bola, a reporter for the privately owned daily Mutations, will appear in the military court in Yaoundé on charges of "non-denunciation," Denis Nkwebo, president of the Cameroon Journalism Trade Union, told CPJ.
"Journalists should not be required to disclose information they uncover in their work or act as police informers," said CPJ Africa Program Coordinator Sue Valentine. "The government should immediately drop these charges against Baba Wame, Rodrigue Tongue, and Félix Cyriaque Ebolé Bola, and allow all journalists to do their work without fear of prosecution."
The journalists were first charged with failing to disclose information that could harm national security on October 28, 2014, according to news reports. According to the news website Camer.be, they had found allegations that members of the security forces were colluding with the leader of an armed group from Central African Republic.
When they charged the journalists, prosecutors also issued an order banning them from publishing in the news media and requiring them to register with police weekly. That order expired in January 2015, according to reports.
If convicted, the three journalists face jail terms of between one to five years and a fine between 50,000 and 5 million Central African Francs (US$83 to $8257), according to Amnesty International.
The journalists deny having uncovered any information about any act that could have harmed Cameroon's national security, and maintain that they were bound to protect their confidential sources, the reports said.
Passing over the weird nature of the offense charged, these cases raise Question No. 1: why is any of this in a military court?

The IHAT cases and the bar

The British government is considering measures that would clamp down on spurious claims against military personnel arising out of operations in Iraq. Some details from this account:
Ministers on the National Security Council have been tasked with drawing up options to end "spurious" claims, including measures to curb the use of "no win, no fee" arrangements. 
Other proposals are set to include speeding up a planned residence for legal aid cases which will require claimants to have lived in the UK for 12 months. . . .
The clampdown on the financial incentives will be accompanied by tough action against any firms found to have abused the system in the past to pursue fabricated claims. . . .
Once disciplinary proceedings have been completed against any firm, the Defence Secretary Michael Fallon has been ordered to prepare the ground for seeking to recover as much of the taxpayers' money spent on the inquiry as possible. 
The Legal Aid Agency has also been asked to review all contracts to establish whether legal aid should be restricted on an interim basis in relation to any firm under investigation for misconduct, and whether such contracts should be scrapped entirely after disciplinary proceedings have been completed. 
The source said: "It would be unprecedented for the Government to sue a law firm in this way - but if they are found to have acted improperly, then it will be the right thing to do. The public, and the soldiers who have been subject to malicious lies, would expect nothing less." . . .
The Iraq Historic Allegations Team (Ihat) has sent documents to around 280 veterans telling them they were involved in an incident under investigation. 
Established in 2010 by the previous Labour government in response to allegations of murder, abuse and torture of Iraqi citizens by British service personnel, the multimillion-pound inquiry is still looking at investigating cases linked to the six-year military mission which came to an end in 2009. 
Ihat's workload reached 1,515 possible victims by September, of whom 280 are alleged to have been unlawfully killed. 
A spokesman for Leigh Day [a law firm that has represented many claimants] said the Prime Minister should not challenge the principle that "no one is above the law" and insisted the firm will "vigorously" defend itself before the Solicitors Disciplinary Tribunal. . . . 
"We have a system in this country that enables people to obtain justice if they have suffered abuse, damage or loss at the hands of anyone. 
"No-one is above the law, not us, not the British Army and not the Government. We cannot imagine that the Prime Minister is proposing that this should change.
Watch for further developments. One wonders whether the government will be tempted simply to shut down IHAT. Beware of impunity and a chilling effect on legal representation.

Thursday, January 21, 2016

Detention of journalists sends Ukrainian colonel to detention for two days (but no criminal prosecution)

A Ukrainian civilian court has ordered a Security Service colonel detained for two days for illegally detaining a television camera crew, according to this account. It almost sounds like a case of "an eye for an eye." Details from the Kyiv Post:
SBU Colonel Yuriy Bondarev was sentenced to two days’ military detention over the incident, which has riled concerns of press freedom in Ukraine.
The court found that Bondarev was one of four officers who participated in the unlawful detention of the television crew.
The SBU had argued that there was no way for them to tell whether the reporters were in fact journalists or terrorists. The television crew, part of Radio Svoboda's investigative "Schemes" program, were filming the luxury cars of SBU employees when they were detained.
In sentencing Bondarev on Jan. 19, the judge found that there was no way the SBU officers could have mistaken the journalists for terrorists, according to a Facebook post from Mikhail Tkach, one of the detained journalists. 
On Dec. 31, the SBU military prosecutor closed a parallel criminal investigation into the matter, provoking an outcry among press freedom advocates. 
Radio Svoboda is pushing for the criminal case to be reinstated. Until then, Bondarev's only punishment will have come in the form of today's administrative judgment - essentially an internal disciplinary measure used by Ukrainian law enforcement. 
Though the penalty of two days’ time-out in a non-criminal case may seem very minor, journalists and press advocates alike hailed the decision as a partial victory for the rights of journalists in Ukraine. 
"A colonel is going to jail for two days for giving order to illegally detain our journalists," Katya Gorchinskaya, said the managing editor for Radio Liberty's Ukraine Service and former Kyiv Post deputy chief editor.
"This is a precedent, and we hope that this ruling will strengthen our position and chances for renewal of criminal case against the SBU," Gorchinskaya added.
In a comment on a post from Radio Svoboda journalist Mikhail Tkach celebrating the verdict, military prosecutor Anatoliy Matius defended his decision to halt the criminal case against the SBU officers.
"The decision to close criminal proceedings was made by investigators in a lawful manner on the basis of all (without exception) materials in the case," wrote Matius, "taking into account the circumstances of protecton of government sites during an exceptional period in the country, as proclaimed by the People's Deputies of the Verkhovna Rada."
It does seem interesting that the matter would be resolved in a civilian court, and that that court could adjudicate what is in essence an administrative sanction that sounds like nonjudicial punishment of a kind usually associated with the power of a commander. 

Ex-military prosecutor to be tried in Chile

The Second Chamber of the Court of Appeals in Temuco, Chile, has ruled that Alfonso Podlech Michaud a former military prosecutor must stand trial for homicides committed in 1973. The deaths were a violation of human rights. Until now he had been treated as an accomplice rather than a direct perpetrator. Details (in Spanish) can be found here. The former prosecutor has been under house arrest.

Transfer decision challenged in Pakistan

In the continuing legal struggle over the military courts Pakistan created a little over a year ago to try civilians, every step of the process is contested. At issue in a current case in the Sindh High Court is whether the proper procedures were employed in transferring an existing prosecution to a military court. Details here. Here's what the transfer process looks like:
The Sindh government’s representatives argued that the legal procedure regarding shifting of the cases to the military courts is very much defined and takes legality from the 21st constitutional amendment. Terrorism cases are considered at the highest level of the apex committee, which makes decisions regarding the shifting of terrorism cases to the military courts. 
The legal committee, comprising the provincial home and law secretaries, the prosecutor-general, counter-terrorism department AIG, provincial Rangers director-general, legal AIG and the representatives of the Inter-Services Intelligence, Military Intelligence and Intelligence Bureau deliberate in detail, keeping in view all the legal requirements. The committee then decides whether to send cases to the interior ministry, on which the legal team of the ministry and the Army’s General Headquarters (GHQ) further deliberate. Recommendations are then forwarded to the SHC chief justice. 
They said the legal committee of the apex committee deliberates upon the legal aspects of the cases, adding that after its approval the interior ministry is approached. The representatives further contended that after the interior ministry approved transferring the Safoora carnage case to the military court on September 18, 2015 the matter was submitted to the SHC chief justice, who, on December 28, 2015, endorsed the same and ordered the anti-terrorism court to shift the cases to the military courts.

Wednesday, January 20, 2016

Canadian military justice structure remains a throwback to the British or Colonial Empire

In an article published on January 18, 2016 by Hill Times, titled  
Parliamentary Control of armed forces; a matter of national urgency and of Public Interest, retired Justice Gilles Létourneau and Professor Michel Drapeau posit, inter alia, that in Canada the Director of Military Prosecutions (DMP) lacks the required prosecutorial independence.

The article notes that the Judge Advocate General (JAG) who reports directly to the Minister of National Defence actually supervises the DMP. Additionally, lawyers working in the DMP are an integral part of the JAG’s chain of command; their selection for service within the DMP as well as their subsequent postings and assignments, appointments and promotions are all determined by the JAG chain of command to which they are totally subservient and obedient.

The authors also submit that the time has come for the Canadian Parliament to review, if not restrict, the extraordinary reserved authority, powers, control and influence of the JAG over the superintendence of the military justice system. 

Needed military law reforms cannot, they write, realistically come from within the Defence establishment. This onerous task and responsibility, are that of the legislator who should advance strong and pressing legislative corrective medicine in order to modernize and democratize the Canadian military justice system.

Tuesday, January 19, 2016

The monolith of Canadian military justice: blindness, deafness and general recalcitrance


In this interview conducted by laureate journalist Noémi Mercier for the French-language Actualité magazine following an international conference this past November on penal military justice systems held at the University of Ottawa for the first time in Canada, the United Kingdom Judge Advocate General, His Honor Judge Jeff Blackett, deplored the lack of independence and impartiality of the Canadian penal military justice. The following summarizes the essence of the interview with Judge Blackett and compares it with the prevailing situation in the Canadian system.

Resume of Judge Blackett Interview and comparison with the Canadian system

In his interview, Judge Blackett reiterated the known principle that justice must not only be done, but must also be seen to be done. And it does not appear to be done and equitable when a soldier appearing before a court martial is defended by a major, prosecuted by a colonel and also tried by a colonel.

Moreover the fact that Canadian military judges, including the Chief Military Judge, hold a rank (in fact a rank inferior to over 150 other serving officers in the military establishment), Judge Blackett said, compromises their independence and impartiality. He himself is a civilian judge not accountable to the military while the Canadian Judge Advocate General (JAG), notwithstanding his misleading title, is a military advocate, not a judge. [Oddly enough, his salary, as far as we can ascertain, is that of a federal judge.] Indeed the Canadian JAG is a military lawyer directly and uniquely accountable to the Minister of National Defence.

In addition the Canadian JAG supervises both the Prosecutions and the Defence Services. While the Canadian Director of Military Prosecutions is a military lawyer acting under the general supervision of the JAG, in the UK, as pointed out by Judge Blackett, the Prosecutions Service is independent: the Director of Military Prosecutions is a civilian. He is the one who decides to prosecute or not without referring to the military chain of command.

In the exercise of his functions, Judge Blackett added, the UK civilian Director of Military Prosecutions is assisted by military lawyers. Moreover civilian prosecutors are also involved in the majority of serious cases. As for defence counsel they are generally civilians. In the UK, since 2003, all judges of the court martial are civilian judges. In addition they sit one third of their time in a civilian court, something which, Judge Blackett says, reinforces their independence.

In Canada there is no formal mechanism in place to determine who of the civilian or the military authority will prosecute an ordinary criminal law offence. By contrast in the UK, as is the case in Australia, Judge Blackett reminds us that there is a Memorandum of Understanding between the civilian and the military prosecutions authorities addressing this issue among others.

Now all these deficiencies and lacuna plaguing the Canadian penal military justice and creating unfairness have been raised at home and on the international scene in numerous legal articles and before House and Senate Committees, but to no avail. It took over 19 years of costly court litigation to achieve partial independence of Canadian military judges while it was obvious in the early stages of that specific litigation that it was a mere matter of time before the existing law and regulations would have to be changed.

For more than 20 years the leaders of the Canadian military justice system have closed their eyes to the requirements of the Canadian Charter of Rights and Freedoms, the obvious lack of independence and impartiality of the system and the resulting unfairness for soldiers and civilians alike subject to the overarching Code of Service Discipline.

These leaders have turned a deaf ear to repeated calls for necessary and long overdue structural improvements and changes to the system. Their deliberate unresponsiveness and self-inflicted blindness have been detrimental to the Canadian penal military justice system and the persons subject to it.This is  not surprising, however. According to Judge Blackett, the British military reacted to military reforms in the very same recalcitrant manner:

The British Forces had enormous difficult to accept such changes. At each step of the way, the British military has offered stiff resistance and have done as little as possible to implement the changes. Each one of the changes was met with robust opposition on the pretext that the reforms would negatively affect operational effectiveness and that the world would collapse. The military would not change unless it is pushed to do so.” Amen.

Conclusion

As was the case in the United Kingdom, Canadian military “justice” is screaming out for reform. At present, the Canadian penal military justice is but a preserve of a traditional middle-age legal process with a uniformed courts staff, salutes, a panel of officers some of whom equal in military rank to that of the Chief Military Judge and his colleagues, antiquated rules of procedure, an organization built on a structure of rank and deference.

In our modern Canadian society with a sophisticated legal and justice system, seen by many as one of the world’s best, one is entitled to query whether the penal military justice system should enforce criminal law at all, still less at the expense of accused rights, and whether this separate closed-in scheme of military justice should at all be under the autocratic centralized control of the JAG and the chain of command. If the system needs to exist, why can't the actors in it be independent and the system offer fair justice and equality of treatment and benefits under the law? If it cannot, then it simply does not deserve to exist and continue to spread unfairness.

Monday, January 18, 2016

Blog(ger) in the news :-)


Minister attacked on two fronts over prosecutorial independence;
Allegation is political pressure can be brought to bear on matters

Cristin Schmitz reports in The Lawyers Weekly (Canada):
Military justice reform has unexpectedly shot to the top of the agenda for the federal government and the Supreme Court via two Charter challenges to the prosecutorial independence of the minister of national defence.
In the first case, R. v. Gagnon [2015] CMAC 2, the Court Martial Appeal Court (CMAC) struck down the power of the defence minister in late December, under Section 230.1 of the National Defence Act (NDA), to launch appeals to the CMAC of acquittals, stays, sentences etc.
The ruling relates to cases involving Canadian Armed Forces (CAF) members prosecuted under the Code of Service Discipline for crimes and other federal infractions, as well as military disciplinary offences.
There have always been some challenges to the neutrality and rightness of a convening authority  under the UCMJ, to which the following might equally be said.
“The minister has simply no objective institutional independence required for the independent exercise of a function that can lead to imprisonment of one of his employees or [the employee’s] dismissal,” Justice [Guy] Cournoyer explained in translation from French.

International Military Law Conference - Faculty of Law - University of Ottawa - November 13. 2015

Attached is a copy of the Conference Proceedings of the international Conference on Canadian Military Law hosted by the Faculty of Law, University of Ottawa on Friday, November 13, 2015. The conference was also sponsored by various commercial organizations, civil institutions and veterans community organizations. See: Conference Proceedings.

The conference heard from members of academia, legal practitioners and judges as well as serving military personnel debating how best to contemporize the Canadian military justice system to bring it more in line not only with traditional Canadian legal doctrine and principles but also in harmony with reforms enacted by a majority of our allies. The conference examined the present state of military law in Canada and identified the main issues that need to be addressed in the development of this unique domain of the law.

UK soldiers under the legal gun?

The Daily Mail (UK) reports that: Foreigners will be banned from claiming legal aid to sue soldiers in UK courts under a crackdown on ‘ambulance- chasing’ law firms.
. . .
Meanwhile some British soldiers are facing multiple probes over incidents during the Iraq War dating back more than a decade.
These include a military investigation and court martial; the Iraq Historic Allegations Team, which looks at cases brought by PIL or Leigh Day; Iraq Fatalities Investigations, whose functions are similar to those of a coroner’s inquest; the International Criminal Court in the Hague; and civil claims in the High Court from bereaved families.
Up to 280 soldiers who served in Iraq have been sent letters by investigators asking them about their role in incidents years ago. It is feared that dozens of war veterans could face murder charges.
It appears the intent is to impose a residence test.