Monday, May 22, 2017

Concern over civilian trials of Malaysian military personnel

Former legal officer Lt. Cdr. (R) Zalil Mohd Mess of the Royal Malaysian Navy writes here in opposition to recent trials of military personnel in civilians courts. Excerpt:
The Armed Forces laws are quite unforgiving and more severe compared to civil criminal punishment. As an example, an offence of drug abuse is punished with 12 months imprisonment and dismissal. 
The Armed Forces laws are also allowed to prosecute servicemen and officers who break any Federal penal civil laws, including offences under the Anti-Corruption Act. 
The court-martial is vested with the power to impose maximum punishment of death. 
In the worst case scenario, after an investigation is completed by an outside authority (because the Armed Forces is incapable of conducting their own investigation or because of the of inter-agency trust), why are these accused not offered a trial by their peers in a court-martial? The outside agencies’ investigation is still admissible in a court-martial. 
If it is a question of capability of the prosecution, the rules allow for officers from the legal office of the Defence Ministry (usually officers seconded officers from the Attorney-General’s Chambers) to prosecute in a court-martial. 
The Armed Forces are unlike the police, who do not have a similar court to deal with their own because the nature and integrity of their establishment relate to the public directly. 
The prosecution of Armed Forces personnel and officers in public courts is distasteful and undermines the reputation of the Armed Forces. 
It would better serve the Armed Forces if these cases were tried in a court-martial and given the necessary press coverage to ensure transparency (court-martials are conducted in public).

Sunday, May 21, 2017

Quis custos?

The subsequent convening authority action may be insulated from the appearance of impropriety by attaching a statement to the record that clarifies the Judge Advocate General’s impartiality and his desire for the newly appointed convening authority to exercise independent judgment.

From the government's response to a motion for the appointment of a special master by the U.S. Court of Appeals for the Armed Forces. Worth-reading details here from The Washington Times's Rowan Scarborough

What went wrong at The Hague

Muhammad Majid Bashir, a Pakistani lawyer and former judge,  and Shah Nawaz Mohal, have written for Pakistan Today about what went wrong in Pakistan's presentation to the International Court of Justice in response to India's request for provisional measures in the Jadhav case. Excerpt:
Mere reading of the judgment reflects that Pakistan entered in this war without any preparation and legal tools. The lawyer took less time to conclude his arguments and has lost more than 45 precious minutes in ICJ, which is itself making a world record. More importantly, Pakistan has not availed procedural benefits of nominating an ad hoc judge in the panel of ICJ. 
Unfortunately, Pakistan hurriedly aired in the opening session of court proceedings (at preliminary arguments stage) the time frame work of execution of Mr Yadhav, without giving the details of hierarchy of right of appeal in Pakistan, as provided in the military court/laws and inter alia other existing provisions of domestic laws related to appeals in such cases. The legal team of Pakistan could not build this famous narrative before ICJ relating to the status of Mr Yadhav — first as enemy of state and second as spy of enemy state and thirdly that he is involved in waging of war against Pakistan in the light of his confessional statements. In our arguments before ICJ, we have also missed to link Mr Yadhav’s presence in Baluchistan, collaborating the statements and threats of Indian national security advisors to Pakistan on print and electronic media before the arrest of Commander Yadhav from Baluchistan. Where he said that India had planned to disintegrate Baluchistan from Pakistan. He further disclosed that India had planned to create unrest in other provinces of Pakistan as well. He had also openly discussed the waging of war strategy of India against Pakistan in Baluchistan as the pilot project. These points can exclude the ICJ jurisdiction, and Pakistan can exceptionally perform well to convince ICJ that Pakistan is in war like situation and Commander Yadhav’s activities in Baluchistan are integral part of Indian conspiracy to attempt war or abetting waging of war against Pakistan.

Friday, May 19, 2017

Rehearing requested (or not) in Jadhav (India v. Pakistan)

It is being reported that Pakistan on Friday asked the International Court of Justice to reconsider its decision to order a stay of execution in the Jadhav Case. At this writing, no such request is posted on the ICJ website. The Pakistani government is taking heat domestically for allegedly mishandling the ICJ litigation.

Summary trials - a medieval form of military justice

In recent years, the European Convention on Human Rights (ECHR) and various rulings on its applicability to military trials have also caused some countries, in particular the United Kingdom [Findlay v. The United Kingdom, (1997) I ECHR 8 and Morris v the United Kingdom (2002) I ECHR 162. are, in a way, the starting point for a series of legislative changes brought about in the United Kingdom] to overhaul and amend their military judicial processes. 

The reforms aim at bringing their processes into compliance with Articles 5 and 6 of the ECHR

These Articles provide that no one may be deprived of their liberty, except by a competent and impartial tribunal, and that accused may declare their right upon a criminal charge to a fair and public hearing by an independent and impartial tribunal as established by law.

Lately, the United Kingdom and Ireland recognized this specific deficiency and so, as a result of decisions of the European Court of Human Rights, soldiers now convicted at a summary trial have an unfettered right to a hearing before an appeal tribunal made up of three members where they may be represented by a lawyer

There is no legal or operational reason why similar changes could and should not be incorporated in Canada’s military system of justice since our Charter is, in most respects, analogous in values and terms to the ECHR. Canada has yet to contemplate similar changes.

 Canada could adopt the solution implemented by the UK and others and establish a Summary Appeal Court where the accused would be given the full panoply of rights. It could also decriminalize the summary trial process so that only disciplinary issues would be addressed at a summary trial. This approach would necessarily exclude any punishment of detention or any other penalties giving rise to the creation of a criminal record.

The situation in Venezuela

Human Rights Watch and the Venezuelan Penal Forum have issued a joint statement about the spate of military trials of civilians. Excerpt:

As of May 15, the Venezuelan Penal Forum has obtained information regarding the prosecution of at least 275 civilians by military courts in Venezuela. In all these cases, the Venezuelan Penal Forum has directly assisted detainees or verified information regarding the prosecutions through direct contact with family members. Human Rights Watch interviewed several of the lawyers representing detainees. The cases include the prosecution of 192 civilians in Carabobo state, 19 in Falcon state, 20 in Zulia state, 18 in Caracas, 13 in Lara state, 10 in Sucre state, two in Barinas state, and one in Táchira state. 159 of these defendants were in pretrial detention as of May 12. Detainees are being held in military prisons, prisons for detainees subject to military prosecution, high-security prisons, or in headquarters of the intelligence services.
While no public record of these proceedings is available—a problem in its own right—the accounts by lawyers and family members include many disturbing allegations of abuses and procedural defects in the conduct of these prosecutions, including the following:
  • Detainees being subjected to physical and other abuses that may in some cases amount to torture at the moment of their arrest or during detention.
  • Hearings being held in military courts or other military installations, presided over by military judges who report to the Minister of Defense, and sometimes in the presence of armed guards.
  • Judges charging large groups of protesters with crimes en masse, without any individualized consideration of the evidence against them.
  • Hearing times not being specified in advance, leaving independent lawyers and families waiting at the entrance of military facilities or courts for hours. Lawyers say that when hearings are held, they are sometimes not able to enter the courtroom; when they are allowed to enter, they often are only able to speak to detainees a few minutes before the hearings, only have access to the criminal file when they are at the hearing, and cannot take pictures or copies of the files.
  • Protesters being charged with serious crimes under the military code, such as “rebellion” and “treason,” for alleged acts of violence at protests.

Thursday, May 18, 2017

ICJ order in Jadhav (India v. Pakistan)

The May 18, 2017 Order of the International Court of Justice in Jadhav Case (India v. Pakistan) is available here. It does not address the validity or sufficiency of Pakistan's military court jurisdiction or of the trial and appellate processes.

The concurring opinion of Judge António Augusto Cançado Trindade is available here. The separate declaration of Judge Dalveer Bhandari is available here. Neither document addresses the deficiencies in the military court.

Lacking in Canadian military justice system: Independence of the prosecution which is a constitutionalized principle of fundamental justice which is sadly lacking in Canadian military justice system

Discretion in prosecutorial matters and the principle of independence have been the subject of a series of decisions by the Supreme Court of Canada in the last 25 years: Nelles v. Ontario, [1989] 2 SCR 170; R. v. T. (V.) [1992] 1 SCR 749;  R. v. Cook, [1997] 1 SCR 1113; Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII) ; Miazga v. Kvello Estate, 2009 3 SCC 51(CanLII) ; R. v. Nixon, 2011 SCC 34 (CanLII) ; R. v. Anderson, 2014 SCC 41 (CanLII), and more recently Sriskandarajab v. United States of America, 2012 SCC 70 (CanLII) ; Hinse v. Canada (Attorney General), 2015 2 SCC 35 (CanLII) and Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII) .

Section 7 of the Charter protects the constitutional right of an accused to an independent prosecutor, that is to say, the right to a prosecutor who is objectively able to act independently, at every stage of the judicial process, when making decisions concerning the nature and extent of prosecutions and who can reasonably be perceived as independent. 

To ensure the independence of the Military Prosecution Services, these Services should not be under the supervision of the JAG (see section 165.17of the National Defence Act below) who is the head of the legal chain of command and is both accountable and responsible to the Minister of National Defence. 

Relationship to Judge Advocate General

165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

General instructions

(2)          The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

Specific instructions

(3)          The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

Given this hierarchical relationship between the Director of Military Prosecutions (DPM) and the Judge Advocate General, any notion of independence on the part of the DPM is at best illusory. To ensure both the reality and perception of true independence, the DPM should be under the supervision of the Attorney General of Canada or the Federal Director of Penal Prosecutions.

Provisional measures ordered in Jadhav (India v. Pakistan)

The International Court of Justice has issued an interim order staying the execution of Kulbhushan Jadhav, the Indian citizen who is under sentence of death adjudged by a military court of Pakistan. The order itself is not yet on the ICJ's website, but the press release can be found here. The transcripts of the hearing are available here and here. Excerpt from the press release:
The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction. 
The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible. 
The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought. 
The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.
From Pakistan's oral presentation:
In so far as it has been suggested that the process that Commander Jadhav is subjected to is some form of kangaroo court, it is rather bizarre that a court exists in a State which is seeking to do justice and is asking for evidence in that regard and is sharing evidence in that regard. So, the position that is advanced before this Court is, with respect, a sham.
Huh? It will be interesting to see what, if anything, the ICJ says, either now or at the end of the case, about Pakistan's military courts. The editor's guess: nothing.

Wednesday, May 17, 2017

Chain of Command’s Exceptional Power to Review and Substitute Findings of Guilt and Punishments need be reviewed

Pursuant to sections 249, 249.11, 249.12, 249.13 and 249.14 of the National Defence Act, a finding of guilty and sentences imposed can be reviewed by reviewing authorities outside the judicial hierarchy. Where the finding and the sentence emanate from summary trials, the review is conducted by the Chief of the Defence Staff or his delegate. [It is the Governor-in-Council who acts as the reviewing authority when the finding and the sentence are made and imposed by a court martial.] These ‘powers conferred by these sections can be traced as far back as 1883. Both the accused and the CDS can seek a review.

In the exercise of its review functions, the Reviewing Authority may quash the guilty finding, substitute a new guilty finding for the one under review or a new guilty finding for an offence other than the one for which the accused was found guilty by the summary trial.  In the same vein, it may mitigate, commute or remit any or all of the punishments included in a sentence imposed by the summary trial.

A review by the chain of command of a verdict rendered and sentence passed at a summary trial is conducted without any parameters such as grounds for a review, limits as to the process of the reviewing authority, right to counsel, procedural guarantees, etc. There are no records and no transcripts of the evidence tendered at the summary trials which could help the reviewing authority in the exercise of its functions and assist the accused either in their demand for review or their opposition to the prosecutor’s demand.

Also there are no parameters guiding the mitigation, commutation or remittance of all or part of the punishment imposed, including a sentence passed by the summary trial.As for the review of findings of guilt, the NDA is silent on the criteria for interfering with the punishments imposed, thereby opening the door to secretive arbitrariness.

Only in exceptional circumstances, under strict criteria and where it is necessary to do so to maintain the operational readiness and efficiency of the Canadian Armed Forces should the chain of command have the power to review and quash findings made and punishments imposed by a service tribunal and proceed to substitute findings and punishments of its own.

Lahore HC lawyers sue

The constitutional petition filed by the Lahore High Court Bar Association against the Federation of Pakistan challenging the 23rd Amendment has been docketed at No. 10 of 2017. The web page is here.

The purge resumes in Turkey

Another 135 military judges and prosecutors are facing civilian charges in Turkey. For the latest arrests and the background, click here.

Tuesday, May 16, 2017

Institute of Military Law--India

The Nagpur Today reports:  The Institute of Military Law, the Alma-mater of the Judge Advocate General’s Department the Indian Army celebrated its 27th Raising Day on 16 May 2017 with great zeal and fervor. The Institute is one of its kinds in Asia which trains the Defence Service officers in Military and allied laws.

The Institute was inaugurated at Kamptee way back on 16 May 1990 by Maj Gen AB Gorthi, AVSM,VSM (Retd), the then Judge Advocate General (Army). Institute of Military Law was given permanency on 23rd Dec 2016.

Military Police independence: myth or reality?


Police independence from interference in individual investigations is vitally important and has been recognized by the Supreme Court of Canada as an unwritten constitutional principle derived from the rule of law. [ See: Professor Kent Roach, “Police Independence and the Military Police" (2011) 49 Osgoode Hall Law Journal, 117-149] 

Military police officers operate with a duality of roles. On the one hand, they are peace officers under section 2 of the Criminal Code and are an autonomous policing body within the CAF. On the other hand, they are members of the Canadian Armed Forces, subject to the military chain of command and are duty-bound to follow orders from superior officers. They are subject to the authority of the Canadian Forces Provost Marshal, the highest-ranking military police officer.

However,pursuant to subsection 18.5(1), (2) of the National Defence Act (NDA) the Vice Chief of the Defence Staff (VCDS) has statutory powers of ‘general supervision’ and canissue ‘general instructions or guidelines to the Provost Marshal. 

Truth be told, Military Police independence is compromised by way of subsection 18.5(3) of the NDA which permits the VCDS to ‘issue instructions or guidelines in writing in respect of a particular investigation’. Under this statutory power, the VCDS is able to provide instructions and guidelines in specific cases which could presumably include instructions to and/or not to investigate a particular person or matter. 

This is problematic because it strips the Military Police of the ability to freely investigate without the interference of the military chain of command or an executive arm of Government. Moreover, there is no requirement to make these instructions or guidelines public. It is therefore difficult to understand why the VCDS should retain such power.

The military police should be allowed to proceed with an investigation without interference from non-military police command structures, including the VCDS. 

Just like command influence should not play a role with respect to the laying of charges under the Code of Service Discipline, the military chain of command should not be permitted to instruct the conduct of a military police investigation in a specific case.

Is lustration the answer for Sri Lanka?

Shamara Wettimuny has written this interesting GroundViews essay about whether lustration should be considered in the Sri Lankan context. Excerpt:
Suspects with military links feature in a number of ongoing investigations into crimes and human rights violations committed in Sri Lanka’s post-war period. The Criminal Investigation Department’s report in Lasantha Wickramatunga’s murder investigation detailing military-run ‘death squads’, and the alleged involvement of military intelligence in the disappearance of Prageeth Eknaligoda are examples of this tendency. Meanwhile, recent allegations that 134 Sri Lankan peacekeepers sexually abused children in Haiti exemplify the problem of military indiscipline in the country. 
In this context, there is a need for a process to distinguish between perpetrators of crimes, and those within the military who conducted themselves lawfully and professionally during the war and its aftermath. This process is crucial for post-war peace, as the failure to separate criminals from those who abide by the law fosters a culture of impunity, and brings the entire military apparatus to disrepute in the eyes of victims. Prosecution of perpetrators is the most obvious and straightforward means of ensuring accountability. As Sri Lanka grapples with questions of accountability, the viability of lustration will no doubt be considered.

Recommendations from the UN Committee Against Torture

The UN's Committee Against Torture has issued its Concluding Observations with respect to Pakistan. You can find them here. Of note (highlighting added):
Torture in the Context of Counter-Terrorism Efforts 
12. While recognizing the State party’s ongoing efforts to protect its population from violence by certain non-State terrorist groups, the Committee is seriously concerned that the State party’s counter-terrorism legislation, particularly the Anti-Terrorism Act, 1997 (ATA), eliminates legal safeguards against torture that are otherwise provided to persons deprived of their liberty, by allowing security agencies and civil armed forces to detain any person suspected of committing an offence under the Act for up to three months without review or the possibility of a habeas petition and allowing the detention without trial of up to a year of any person suspected of being involved in the activities of a proscribed organization. The Committee is further concerned that the ATA allows courts to admit confessions as evidence so long as the District Superintendent of Police is present when the accused confessed, in contrast with civilian courts where confessions are only admissible in court if made to a magistrate. The Committee is also seriously concerned that the State party has authorized military courts to try civilians for terrorism-related offences, most recently in the 23rd amendment to the Constitution of Pakistan, approved in 2017, particularly in view of the lack of independence of military court judges, which are within the military hierarchy, and practices of such courts including holding closed trials. The Committee is also concerned by the very broad powers given to the Army to detain people suspected of involvement in terrorist activities without charge or judicial supervision in internment centers under the Actions in Aid of Civil Power regulations 2011 (arts. 2 and 15). 
13. The Committee recalls that article 2(2) of the Convention states “No exceptional circumstances whatsoever [...] may be invoked as a justification of torture” and its general comment No. 2 (2007), states that exceptional circumstances include “any threat of terrorist acts.” In this regard, the Committee urges the State party to:

(a) Repeal or amend the Anti-Terrorism Act and other relevant legislation to ensure that all persons deprived of their liberty have access to legal safeguards against torture, including prompt presentation before a magistrate and the possibility of a habeas petition, and to ensure that confessions obtained outside the presence of a magistrate are inadmissible as evidence;

(b) End the resort to military courts for terrorism-related prosecutions, transfer criminal cases against civilians from military courts to civilian courts and provide the opportunity for appeal in civilian courts of cases involving civilians already adjudicated under military jurisdiction; and

(c) Repeal or amend the Actions in Aid of Civil Power Regulations 2011 in order to abolish the military’s power to establish internment centers in the Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA) and ensure that no one is held in secret or incommunicado detention anywhere in the territory of the State party as detaining individuals in such conditions constitutes, per se, a violation of the Convention. So long as such internment centers remain in operation, ensure that independent monitors and family members of those detained, are able to access such places of detention.

Monday, May 15, 2017

News from The Hague

The International Court of Justice has India v. Pakistan on the docket today. Here is a report on the first part of the hearing. More to come.

Military judge should not have a traditional hierachical military rank

The Chief Military Judge
and military judges are
accounted for as members
of the Legal Branch 
The special character of military duties and service conditions may justify some restrictions on the enjoyment of certain civil rights and fundamental freedoms which would not be acceptable for civilians. However, barring a sound justification, members of the armed forces, like all any other members of our society, should have these rights and freedoms respected and protected. This includes the right of everyone, including service members, to a fair trial by an independent and impartial tribunal established by law and notably separate, both in reality and appearance, from the military chain of command.

While some progress has been made on this front as a result of several compelling judicial decisions, some changes are still needed to achieve the full independence of military judges.

Military judges are appointed by the Governor-in-Council (G-I-C). They are normally drawn from officers (Regular or Reserve) already serving in the CF Legal Branch. Military judges adjudicate at courts martial and other military proceedings such as judicial review of persons held in pre-trial custody. Military judges are only removable by the G-I-C upon the recommendation of an independent Inquiry Committee.

The Chief Military Judge (CMJ) holds the rank of Colonel; the other military judges hold the rank of lieutenant-colonel. The fact that these military judges wear a military rank does nothing to promote their independence, at least in terms of appearance of justice to either the accused or a layperson observing the court proceedings. From times immemorial, the use of formalized military ranks is a system of hierarchical relationships in and within the armed forces by virtue of which a person exercises their command authority. It begs the question: Does a military judge need to have a military rank in the first place?

The absence of military rank would eliminate the present dichotomy in having the Chief Military Judge much junior in rank to the head of the CF Legal Branch, the Judge Advocate General, and all general and flag officers which includes the Chief of the Defence Staff, the Vice Chief of the Defence Staff as well as the Commanders of commands who are all subject to the Code of Service Discipline and, in the final analysis, are all subject to the Chief Military Judge’s judicial authority. In the case of the military judges who hold the rank of lieutenant-colonel they are over-ranked by an even greater number of senior officers within the military hierarchy.

The time has come identify military judge by their title of “Judge” which is quite sufficient as an indicator of their role, function, authority and, above all, independence from the military chain of command. This would considerably enhance the perception of their full independence from the chain of command.

Sunday, May 14, 2017

JAG: a misnomer!


In the 1630s, the phrase 'judge advocate’, or variants thereof, became increasingly in common use. In 1639, for instance, an Advocate served with the Army of Charles I. On June 7, 1645, an Ordinance for constituting Commissioners and a Council of War for trial of all persons . . . appointed a Judge Advocate and a Provost Marshall. The Ordinance enabled and authorized the Judge Advocate to receive all “... accusations, articles, complaints and charges against all or any of the offenders...” By 1659, the Office of the JAG was created to supervise ‘courts martial’.

Prior to 1893, in the U.K. the JAG was a Privy Councillor, a junior Minister in the government, usually a Member of Parliament and a spokesman for the Commander in Chief in Parliament. In those days, the appointment was regarded as a political office and the JAG had direct access to the Sovereign on matters pertaining to their office. However, in 1893 the Judge-Advocate ceased to be a Minister. From that date the Office of the JAG was responsible for both judicial and advisory functions. That changed in 1948 when the UK Parliament decided to appoint a civilian member of the bench as the JAG and entrusted them with the exclusive role of chief magistrate of the penal military justice system accountable not to the military chain of command but to the Lord Chancellor.

Meanwhile in 1911, Canada appointed its first Judge Advocate General. At the time the expectation was that a civilian barrister would be named as the JAG by the Governor in Council but the Prime Minister opted instead to appoint a friend who happened to also be a reservist. Since that time the Canadian JAG has been a military officer.

In 1997, in the wake of the Somalia Inquiry, which clearly indicated the need for fundamental reforms to the penal military justice system, the JAG was divested of all judicial functions when full-time military judges were appointed to ensure, to the fullest extent possible, judicial independence from the chain of command. However, the JAG retained prosecutorial and defence functions, a matter of continued debate raising serious apprehension about the real independence and impartiality of those particular offices.

The JAG was also allowed the continued use of the “Judge” title which not only misrepresents the factual reality but caused it to be wrongly viewed and perceived, to this day, as the titular head of the military judiciary apparatus which is not the case.

Saturday, May 13, 2017

End of the line in Venezuela?

We unfortunately have to put Venezuela on the roll of countries* that insist on using military courts to try uppity civilians. Nicholas Casey has this report in The New York Times. Excerpt:
At least 120 people have been jailed by military courts since early April, when demonstrators began taking to the streets to call for new elections, according to Penal Forum, a legal group assisting those arrested. Another group monitoring cases, Provea, counted at least 90 people jailed by the military. Both groups contend that the country has never used the military courts against so many civilians this way outside of wartime. 
“Military justice sows the greatest terror in our population,” said Juan Miguel Matheus, an opposition congressman in the state of Carabobo. He said at least 69 people there had been jailed by the military since early April. 
Those held include students, store owners, mechanics and farmers, rights groups say. An entire family was arraigned before a military tribunal in Caracas this past week and charged with inciting rebellion. In one case in the city of Valencia, two people were brought before military courts on suspicion of stealing legs of ham during a round of looting — then charged with rebellion as well, according to Penal Forum. 
“They are being treated like they are combatants,” said Alfredo Romero, the director of the legal group. “It’s taking civil jurisdiction and putting it in the hands of the military, like we are in a war.”
* Current list: Pakistan, Cameroon, Lebanon, Egypt, Venezuela, Russia, Bahrain, Uganda. Any others?

Preemptive strike at The Hague?

This report notes that Pakistan has seemingly conducted a preemptive strike that could affect the case of Indian national Kulbhushan Jadhav by modifying its accession to the International Court of Justice's compulsory jurisdiction so as to exclude matters relating to national security. Here is Pakistan's communiqué to the UN (highlighting added):
29 March 2017

I have the honor, by direction of the President of the lslamic Republic of Pakistan to declare that [the] Government of the Islamic Republic of Pakistan recognizes as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice under the Statute of the International Court of Justice.

Provided that this Declaration shall not apply to:

a) disputes the resolution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future; or

b) disputes relating to questions which fall essentially within the domestic jurisdiction of the Islamic Republic of Pakistan;

c) disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved;

d) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of a party to the dispute as deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;

e) all matters related to the national security of the Islamic Republic of Pakistan;

f) disputes arising under a multilateral treaty or any other international obligation that the Islamic Republic of Pakistan bas specifically undertaken unless:

i) all the parties to the treaty affected by the decision are also parties to the case before the Court, or

ii) the Government of the Islamic Republic of Pakistan specifically agrees to jurisdiction, and

iii) the Government of the Islamic Republic of Pakistan is also a Party to the treaty.

g) any dispute about the delimitation of maritime zones, including the territorial sea, the exclusive economic zone, the continental shelf, the exclusive fishery zone and other zones of national maritime jurisdiction or the exploitation of any disputed area adjacent to any such maritime zone;

h) disputes with the Islamic Republic of Pakistan pertaining to the determination of its territory or the modification or delimitation of its frontiers or boundaries;

i) all disputes prior to this Declaration although they are filed before this Court hereafter. [The] Government of the Islamic Republic of Pakistan reserves the right at any time, by means of a written notification addressed to the Secretary-General of the United Nations, and with effect from the moment of such notification, either to amend or terminate this Declaration.

This Declaration revokes and substitutes the previous Declaration made on 12 September 1960.

(Signed) Dr. Maleeha Lodhi
Permanent Representative of the Islamic Republic of Pakistan to the United Nations.

Unlawful command influence from lawyers?

The Washington Times has this article about a U.S. Navy case that is likely to make waves. "Retired Rear Adm. Patrick J. Lorge in a May 5 signed affidavit charges that the then-judge advocate general of the Navy and her deputy tried to convince him not to exonerate the sailor because it would be bad PR for the Navy and hurt Mr. Lorge’s career."

Query: could this situation be an unintended side-effect of giving the Judge Advocates General a third star?

Friday, May 12, 2017

Urgent need for parliamentary review of National Defence Act


Over the years, attempts to modernize the National Defence Act (NDA) to bring it more in line with globally accepted standards of justice, or even with our own domestic civilian penal system, have been serially resisted by the Canadian military legal establishment. Several of the reforms that have been made are the result of pressures that were initiated from outside, none the least the judiciary, but not, repeat not, within the JAG organization or the military itself.

However, by force of habit and continued reliance on a wide panoply of statutory powers granted to the Judge Advocate General, in July 2016 the JAG directed one of its immediate subordinates to conduct an internal legal and policy analysis of all aspects of the court martial system. As noted recently by the Canadian Bar Association, this internal analysis represents a mere fraction of the overall military justice system. The fact that such internal review runs counter to Principle number 20 of the Draft Principles Governing the Administration of Justice Through Military Tribunals published by the United Nations during its 62nd Session (Doc E/CN.4/2006/58, (2006) did not seem to have had an impact:
Codes of military justice should be the subject to periodic systematic review conducted in an independent and transparent manner, so as to ensure that the authority of military tribunals correspond to the “strict functional necessity, without encroaching on the jurisdiction that can and should belong to ordinary civil courts.”
In conducting such an in-house review creates at least an apprehension of a lack of independence. Such apprehension took an air of reality when, as pointed out by the Canadian Bar Association, one of the key contributor to this internal analysis was the current Director of Military Prosecutions whose submission endorsed in toto the current and existing court martial system

It is now necessary, if not urgent, to bring the military justice system more in line with contemporary Canadian as well as international legal doctrine and principles in order to not only prevent it from falling further behind global standards of justice, but also to ensure that all members of the military benefit from the very fundamental rights and freedoms they defend. This is currently NOT the case.

This can be accomplished by conducting a full-scale parliamentary review of the NDA.

Thursday, May 11, 2017

Toute bonne chose a une fin

All good things must come to an end. This is also true of bad things. According to critics and observers of military justice, it appears that the appointment of the current Judge-Advocate General of the Canadian Armed Forces was the appointment of the wrong person, at the wrong position, at the wrong time. Due to leave his position in this coming June, it is hoped that the new incumbent will be open to the important changes that have been made in recent years with success and without prejudice to the need for good order and discipline in the military.

Selon l’adage, toute bonne chose a une fin. Il faut en convenir: cela est aussi vrai pour toute mauvaise chose. Selon les critiques et les observateurs de la justice militaire, la nomination de l’actuel titulaire au poste de Juge-Avocat Général (JAG) des Forces armées canadiennes s’est avérée le choix de la mauvaise personne, au mauvais poste, au mauvais moment, bref une mauvaise chose. Son départ annoncé y mettra fin.

Ce choix du titulaire actuel eût-il été fait à une époque antérieure où le conservatisme et l’immobilisme étaient la norme et de bonne guerre que sa gestion  de la justice militaire n’eût pas ou que très peu prêté flanc à la critique. Malheureusement pour lui et fort heureusement pour la justice pénale militaire et les personnes qui y sont sujettes, un vent de réforme, un véritable zéphir, a soufflé à l’échelle internationale sur la justice pénale militaire pour la rendre plus juste, plus équitable, plus respectueuse des droits de la personne, en somme plus égalitaire et plus crédible.

Il est hautement regrettable que ce souffle du zéphir n’ait pu traverser la forteresse érigée par le JAG. Sous sa férule d’une durée de sept ans, il faudra retenir de son passage dans cette fonction une opposition farouche à l’indépendance des juges militaires, du Service de la poursuite et du Service de la défense ainsi qu’à tout changement pourtant acccepté par de nombreux pays qui sont nos alliés (Voir par exemple le Royaume-Uni, l’Australie, les pays européeens tels la France, la Belgique, les Pays-Bas, l’Allemagne, pour n’en nommer que quelques-uns).

Cette opposition s’est logée à l’enseigne de longues contestations judiciaires qui se sont avérées à la fois futiles et coûteuses tant au plan monétaire qu’à celui du respect des droits constitutionnels conférés à tout citoyen canadien par la Charte des droits et libertés de la personne.

On ne peut qu’espérer que la personne qui le remplacera sera éprise d’une plus grande justice et fera preuve d’ouverture aux importants changements survenus, lesquels n’ont en aucune façon porté atteinte aux objectifs du bon ordre et de la discipline militaire.

The law more beneficial to the individual (La ley mas benigna)


Marcha en Buenos AiresThe Argentine Supreme Court is comprised of 5 judges, --two were nominated by President Mauricio Macri in 2016, and confirmed by the requisite 2/3 vote of the Argentine Senate.  These two new judges, Horacio Rosatti and Carlos Rosenkrantz, with the assistance of Elena Highton de Nolasco, form the majority of the Court, which now has a more conservative character than the very human rights- biased court under former President Cristina Fernandez de Kirchner.

On May 3d, the Court issued a ruling affirming the reduction of the sentence of 61 year old Luis Muina, who in 2011 was convicted and sentenced to 13 years in prison for having participated in a paramilitary group that kidnapped and tortured 5 persons during Argentina’s dirty war (1976-83).  The reduction in sentence was achieved by the Court’s application of a law that had been repealed but was more beneficial to the individual (“la ley mas benigna”) than the current law.  Since one of the 5 victims of Muina was disappeared, the crime is considered continuous or permanent (until the victim is found) and the Supreme Court reasoned that it could apply a law that is no longer in effect to someone convicted of crimes against humanity.  The law, known as the “two for one” law, allowed for the computation of each day spent in prison, before a final conviction and sentence, to count for two days when more than two years had been spent in custody.  The law, which was in force from 1994-2001, was designed to reduce the prison population, which was comprised of many people in long term detention who had not been convicted and sentenced.

The application of this law to someone who had been convicted of crimes against humanity caused an uproar on the part of the human rights community in Argentina.  There are approximately 2,000 persons charged with crimes against humanity in Argentina and approximately 750 members of the military and police are in detention for crimes committed during the dirty war without a final conviction and sentence.  This latter group would be able to benefit from the “two for one” law and be placed in conditional liberty once they complete two thirds of their sentence. 

The human rights community organized a protest of tens of thousands of people against the law on May 10, 2017 (above photo), causing President Macri to denounce the law and Congress to swiftly pass a new law prohibiting its application to cases of crimes against humanity, genocide and war crimes and limiting its applicability to persons who were prisoners during the time the law was in force (1994-2001). It is not clear whether this new law will result in Muina’s return to prison. 

Civilians (including young offenders) under Canadian Military Justice: an anachronism or an aberration?


For your military justice bookshelf

Students of military justice may wish to have a look at James M. McCaffrey, The Army in Transformation, 1790-1860 (Greenwood Press 2006). Chapter 5 deals with military discipline.

Wednesday, May 10, 2017

India v. Pakistan

India's application to the International Court of Justice is now available here. It raises access issues under the Vienna Convention on Consular Relations, but also addresses deficiencies in Pakistan's military court system. Excerpt:
c) In a case that has created so much controversy, there is more than a reasonable apprehension that the Court of Appeal presided over by a two star general of the Army [who is subordinate to the Chief of Army Staff who has confirmed the death sentence] -- will not act independently, fairly and impartially to the standards of due process recognised in International law. There can be no faith or confidence in such a remedy, particularly in the facts and circumstances of the present case. 
d) Further, when the Government of Pakistan has publicly taken such a position, it defies credulity to believe that a Court of Appeal constituted under the Pakistan Army Act, 1952 will be so independent and free from pressures so as to constitute a real and effective remedy.
While it must be assumed that access will be the focus of the proceedings, India v. Pakistan could prove to be the rare case in which issues of judicial independence, personal jurisdiction, and due process in the administration of justice through military courts are examined in an international forum other than a human rights body.

India's May 8, 2017 Request for the Indication of Provisional Measures of Protection can be found here. The court's webpage for the case can be found here.

ICJ to hear India v. Pakistan on May 15

The International Court of Justice website reports:
The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings on Monday 15 May 2017, at the Peace Palace in The Hague, the seat of the Court, in the proceedings instituted by the Republic of India on 8 May 2017 against the Islamic Republic of Pakistan. 
The hearings will be devoted to the Request for the indication of provisional measures submitted by India (see Press Release No. 2017/16 of 9 May 2017). 
Schedule for the hearings

Monday 15 May 2017 10 a.m.-11.30 a.m.: Oral observations of India 
3 p.m.-4.30 p.m.: Oral observations of Pakistan
Multimedia

The hearings will be streamed live and on demand (VOD) on the Court’s website (www.icj-cij.org/multimedia), as well as on UN Web TV, the United Nations online television channel. The embed code enabling the media to show the live images on their own websites is available from the Information Department (information@icj-cij.org). Still photographs of the event will be posted on 15 May 2017 on the ICJ and UN Photo websites, as well as on the Court’s Twitter feed (@CIJ_ICJ). Selected high-resolution video footage of the event will be available for TV use on the Court’s website the same day. The hearings will also be covered by the United Nations television broadcasting service (UNifeed, New York). . . .

Military justice in India's paramilitary forces

Nishant Gokhale
In January, The Hindu ran a smart op-ed by Nishant Gokhale of the Centre on the Death Penalty at the National Law University, Delhi. His argument is that India's seven paramilitary forces, such as the Border Security Force, need an major upgrade of their disciplinary systems. Excerpt:
Despite court martial systems within the military being reformed and judicial scrutiny now being available, paramilitary forces continue to follow a court martial-like system called the Security Force Court with less legal safeguards than those found inadequate by the Supreme Court. Yet, like in court martial proceedings, penalties including the death sentence can be imposed. With no process of appeal other than statutory petitions, often before the Home Minister, the only recourse left is expensive and time-consuming writ petitions. Even here, the fundamental rights of armed forces personnel are expressly limited under Article 33 of the Constitution which makes approaching civilian judicial systems a challenge.
Highly recommended reading. 

It's unconstitutional!

The president of Venezuela's National Assembly has protested the use of military courts to try civilian protesters, calling it unconstitutional. "Our Constitution is very clear," he said. "Only soldiers can be tried in a military court." Details here, in Spanish.

Amnesty International's statement is available here.

A critic responds to Canada’s JAG

Canada’s Judge Advocate General (JAG) Blaise Cathcart’s 7 May interview with The Lawyer’s Daily carries the dramatic title “Canada’s outgoing judge advocate general fires back at critics.”

Having written several in-depth articles for various publications about Canadian military disciplinary processes that underscore their deficiencies and failings, I am one of those critics, and my criticism continues of a system to which I am reluctant to apply the rubric “justice.” It is simply a summary disciplinary system that too frequently fails to meet the minimum standards required of a justice system.

I am currently writing a series of articles about Canadian military law for the Halifax, Nova Scotia, daily newspaper, the Chronicle Herald. I am also researching a book on this subject.

Cathcart may feel that the Canadian military’s Code of Service Discipline is the envy of the western world, but the reality is substantially different. One-by-one, nations are turning away from traditional military justice in peacetime and assigning this requirement to criminal and civil jurisdictions. These include Britain, Germany, France, Sweden, Finland and Japan. Australian defence officials have indicated an interest in the Canadian practice but this may not bear the weight of a careful analysis by our Australian cousins.

There can be no progress and advancement without discussion and debate, which invariably begins with either the submission of a series of proposed improvements or the argument that the current process is wrong, or both.

When he was in the rank of major, retired Judge Advocate General Kenneth Watkin wrote in his thesis for the degree of Master of Laws at Queen’s University, “The potential exists for a clash” between the Code of Service Discipline and the Charter of Rights and Freedoms. “. . . [T]he Charter, rather than being seen as a vehicle for an attack on the military justice system, should be viewed as providing an effective and pragmatic means of reconciling conflict between guaranteed rights and freedoms and the need for a disciplined armed force.” (Canadian Military Justice: Summary Proceedings and the Charter (1990) – Abstract, page i)

This betrays the opinion, shared among many JAG officers, that this is an “either . . . or” situation, a zero-sum game.

I believe there can be no dichotomy or incompatibility between the Canadian Charter of Rights and Freedoms and the Code of Service Discipline, and if an incompatibility exists then the Charter of Rights and Freedoms, as the preamble to the Canadian Constitution, must take precedence.

The current Comprehensive Review of the Court Martial Process, Cathcart announced, will look at the requisite material and the final report will be unclassified but will be “solicitor/client privilege.”

For there to be a need for “solicitor/client privilege” there must be a solicitor and a client. However, in this instance both are the same entity. Additionally, Cathcart fails to understand that this study takes place within a regime that is mandated by the democracy in which JAG operates. The study being conducted is the property of the Canadian people.

Also, there is the practice of JAG to assign the condition of “solicitor / client privilege” far too frequently, an observation made to me by a former civilian employee of JAG and by Corporal Stuart Langridge’s mother, Sheila Fynes, on CBC Radio’s “The Current” on 25 September 2012.

Cpl Langridge tragically took his own life in 2008.

As a veteran of 37 years in the Canadian Armed Forces I have seen my share of disciplinary investigations and tribunals and their impact on affected service personnel and their families. If Cathcart genuinely wishes for systemic improvement of Canadian military law, rather than “firing back” should he not welcome criticism, opinion and analysis?

India v. Pakistan

It has been widely reported that the International Court of Justice has issued an order for provisional measures in India's case against Pakistan. There is no such order on the court's website. Nor has the court made India's complaint available to the public. The delay in doing so seems ridiculous in this day and age. As for the reports of provisional measures, as they say in Missouri, "show me." Fake news, or just a lack of transparency?

New Chinese regulation on military legislation

Headlining the Chinese Ministry of Defense's website on May 10 is a brief Xinhua story, informing the public that President (and Chairman of the Central Military Commission) Xi Jinping has issued an order authorizing the release of a newly approved regulation on military legislation.  The full text has not yet been issued.  The background for this regulation is Article 103 of China's 2015 Legislation Law:
The Central Military Commission enacts military regulations according to the Constitution and the laws.
The various headquarters, divisions, and military areas of the Central Military Commission , and the Chinese People's Armed Police Forces, may enact military rules consistent with their scope of authority in accordance with the relevant national laws and military decrees, decisions and orders.
Military regulations and rules are implemented within the armed forces.
The Central Military Commission shall formulate methods for enacting, amending and repealing military regulations and rules in accordance with the principles provided by this Law. 
This development was flagged in the 2014 Fourth Plenum Decision:
Complete military regulatory structures and systems that are adapted to the construction of a modern military and the demands of waging war, strictly standardize the powers and procedures to formulate military regulations and structures, bring all military normative documents into the scope of inspection, perfect inspection systems, strengthen the scientific nature, focus and applicability of military regulations and structures.
The English language version of the story is even briefer than the Chinese version:
BEIJING, May 10 (Xinhua) -- President Xi Jinping, who is also chairman of the Central Military Commission, has signed a decree that will release a regulation on military legislation.
The regulation, which took effect Monday, defines the rules for establishing military laws and regulations as well as the drafting of standard documents.
The regulation standardizes the formulation of military laws and regulations, spanning the drafting, submission, modification and issuance stages.
In addition, it regulates the review and compilation of records, and suggests measures to improve the management system for documents. 
The Chinese version states that there are 78 articles in the regulation.  Presumably it addresses many of the issues raised by Professor Zhang Jiantian in a 2014 article, particularly review of related legislation and conforms legislative authority with the post-reform organizational structure of the People's Liberation Army and Armed Police.

Should he have commented at all?

Brig. Gen. Sharon Afek
IDF Military Advocate General
Brig. Gen. Sharon Afek, the Israeli Military Advocate General, has given an important speech to the Israel Bar Association. Excerpt from this account:
He also stressed that condemnations of [Sgt. Elor] Azaria's actions made immediately following the incident by former defense minister Moshe Ya'alon and IDF Chief of Staff Gadi Eisenkot did not affect the legal process.

"Moreover, there is no one in the defense establishment that tells me 'I want you to act this way or another,'" he said. "The military prosecution and the military courts are not professionally subordinate to any senior official, and there is no concern of bias. All of the decisions we made were based on the evidence and legal principles."
All well and good, and reassuring. Still two questions come to mind. First, should the MAG have been commenting at all about the Azaria case while it is pending appellate review? Second, how far must prosecutorial independence go? That is, would there be a reason to object if a commander had the option of submitting a memorandum -- with a copy to defense counsel -- that argued for or against a particular disposition?

Military trials begin again in Bahrain

Amnesty International reports from Bahrain:
Bahrain’s authorities have referred a civilian to trial before a military court for the first time since 2011, after the King of Bahrain ratified a disastrous constitutional amendment in April 2017. Bahrain’s public prosecution referred the case of Fadhel Sayed Abbas Hasan Radhi, a victim of enforced disappearance, to the military court earlier today. 
“This is a shameful move by the authorities designed to strike fear in the heart of the population. It is also a serious blow for justice in Bahrain. Military trials in Bahrain are flagrantly unfair. And trying civilians before military courts is contrary to international standards,” said Samah Hadid, Director of Campaigns at Amnesty International’s Beirut regional office. 
“The decision to transfer Fadhel Sayed Abbas Hasan Radhi to the military court must immediately be quashed. He must be given immediate access to proper legal representation, informed of the charges against him, and tried in a civilian court, according to international fair trial standards.”

Tuesday, May 9, 2017

India v. Pakistan

The International Court of Justice has entered an order staying the execution of an Indian citizen who has been sentenced to death by a Pakistani military court. The ICJ press release is here.
On 8 May 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of “egregious violations of the Vienna Convention on Consular Relations” (hereinafter the “Vienna Convention”) in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.

The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it learned about the death sentence against Mr. Jadhav from a press release.

India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter.

According to the Applicant, on 23January2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s alleged “involvement in espionage and terrorist activities in Pakistan” and, by a Note Verbale of 21 March 2017, informed India that “consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process”. India claims that “linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention”.

India accordingly “seeks the following reliefs:

(1) [a] relief by way of immediate suspension of the sentence of death awarded to the accused[;]

(2) [a] relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention[;] and 
(3) [r]estraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan[;] 
(4) [i]f Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.” 
As the basis for the Court’s jurisdiction, the Applicant invokes Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

On 8 May 2017, India also filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It is explained in that Request that the alleged violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention”.

The Applicant states that Mr. Jadhav “will be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until th[e] Court’s decision on the merits” of the case. India points out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”. 
India further indicates that the protection of its rights is a matter of urgency as “[w]ithout the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before th[e] Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”. The Applicant adds that it is possible that the appeal filed by the mother of the accused on his behalf may soon be disposed of. 
India therefore requests that, “pending final judgment in this case, the Court indicate:

(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision th[e] Court may render on the merits of the case”.

Referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India”, India urges the Court to deliver an Order indicating provisional measures immediately, “without waiting for an oral hearing”. The Applicant further requests that the President of the Court, “exercising his power under Article 74, paragraph 4[,] of the rules of the Court, pending the meeting of the Court . . . direct the Parties to act in such a way as will enable any Order the Court may make on the Request for provisional measures to have its appropriate effects”.
The ICJ's order is not yet available on the court's website.