Tuesday, April 25, 2017

Judicial independence in Cameroon

Here's a sentence that causes the reader to pause:
On Monday, Judge Edou Mewoutou arrived at the sentencing hearing nine hours late. He did not give a reason for the delay.
 For more on the case click here.

The Jadhav dilemma

Dawn has published this op-ed by former caretaker law minister Ahmer Bilal Soofi summarizing Pakistani law as it applies to the case of an Indian citizen who has been sentenced to death by a Pakistani military court. It is important reading:
There are two avenues available to Kulbhushan Jadhav and India if they want to challenge his conviction. One, Jadhav himself may file a writ petition for which he would need to obtain a no-objection certificate from the federal government as per the requirement of Section 83 of the Code of Civil Procedure, 1908 (CPC). The second option is that the Indian state itself may invoke Section 84 CPC and appear before the courts of Pakistan as a petitioner.

Section 83 CPC bars alien enemies residing in Pakistan from suing in the courts without the permission of the federal government. The statutory explanation of Section 83 deems an alien enemy as any person whose country is at war with or engaged in military operations against Pakistan. 
The above law is a statutory formulation of a well-recognised public policy doctrine that a state’s judicial apparatus shall not facilitate the enemy and neither will a state make available its remedies to the enemy. This public policy doctrine has been enshrined in the civil procedure codes of India, Bangladesh and Pakistan. 
The Supreme Court of Pakistan in its judgement (PLD 1969 SC 37) has explicitly stated that Section 83 was a complete bar for an enemy alien.

In another judgement reported as PLD 1966 Karachi (WP) 161, the high court observed that: “This law [Section 83] … was grounded upon public policy which forbids doing of acts that will be or may be to the advantage of the enemy state by increasing its capacity for prolonging hostilities…” 
It was further observed that: “To allow an alien enemy to sue or proceed during war in the courts of the king would be to give to the enemy the advantage of enforcing his rights by the assistance of the king with whom he is at war.” 
The court further held that: “In international law, fighting between two countries can take place without a formal declaration of war.” 
This was due to the enactment of the UN Charter in 1945 after which the states stopped issuing declarations of war and instead resorted to mostly covert tactics of organising or financing military operations against each other. 
Thus, the federal government while examining a request by Jadhav under Section 83 CPC will need to come to a conclusion about whether Jadhav’s activities are to be viewed as an act of waging a covert war on the part of the Indian state. For that purpose, it will be guided by the language of sections 121, 121-A and 122 of the Pakistan Penal Code that sum up the concept of waging war, or its attempt or its conspiracy within the territories of Pakistan. An identical provision in the Indian Penal Code has been widely interpreted by several reported cases of the Indian Supreme Court. 
As mentioned here, the state of India may also consider filing the case itself on behalf of Jadhav before the Pakistani courts under Section 84 of the CPC, since its foreign minister has conclusively owned Jadhav as the “son of India” in her address before India’s lower house, the Lok Sabha. The said section authorises foreign states to become petitioners before local courts in the following words: 
“84(1) A foreign state may sue in any court … Provided, that the object of the suit is to enforce a private right vested in the head of such state or in any officer of such state in his public capacity.” 
If Section 83 was to be invoked given the existing material available through open sources, it may be ruled that Jadhav is an enemy alien. In this regard, the Supreme Court of Pakistan had earlier taken note of possible foreign connections of terrorist acts in the military courts judgement PLD 2015 SC 401. The court had observed that “we are in a warlike situation”. It further observed that “persons involved in the armed conflict against the state not only include foreigners but there are also indications of foreign funding and instigation”. Only months after the announcement of this judgement, Jadhav was arrested. 
The federal government can only grant permission to Jadhav under Section 83 CPC if there is evidence to suggest that covert hostilities have ceased. There has been no statement or any other indication from the government of India to suggest that they regret the unlawful activities of Jadhav or that they will discontinue from carrying out such activities in the future. There is no offer even to adhere to the principle of non-intervention.
In the absence of any such statement or undertaking by India, the federal government will have no choice except to make an executive determination that India is not discontinuing its efforts of waging war inside Pakistan.
Given Mr Soofi's summary of Pakistani law, one must infer that unless peace were to suddenly break out, the only way out of the current predicament is a political arrangement between the two countries, such as a prisoner exchange, rather than legal proceedings. The recent hangings of Pakistani citizens who were condemned by military courts adds to the urgency of the two states' interactions. 

Cameroon military court hands journalist a 10-year sentence

Amnesty International reports that a Cameroonian military court has handed down a 10-year sentence And $90,000 fine to Ahmed Abba, a Radio France International journalist. "Amnesty International considers that Ahmed Abba’s trial was marred by irregularities, including witnesses not being called to testify and key documents not being shared with defence lawyers." He was convicted of "non-denunciation of terrorism" and "laundering of the proceeds of terrorist acts” but acquitted of "glorifying acts of terrorism."

Monday, April 24, 2017

La croissance surprenante du bureau du Juge-Avocat Général

This text points to the surprising growth of the office of the Judge-Advocate General. It shows an increase of 256% of its legal staff since 1997 while the number of military members of the regular force has decreased from 70,000 in 1997 to 65,000 in 2017.

La croissance surprenante du bureau du Juge-Avocat Général nous rappelle cette fable de Jean de Lafontaine intitulée "La grenouille qui veut se faire aussi grosse que le boeuf".

Ayant vu un boeuf de belle taille, la grenouille qui n'était pas grosse en tout comme un boeuf décida d'égaler le boeuf en grosseur, De dire l'illustre fabuliste, "La chétive Pécore s'enfla si bien qu'elle creva". Je ne crois pas que ce soit là le destin du bureau du JAG mais, ceci dit, un régime minceur paraît s'imposer dans les circonstances. Voyons les chiffres actuels selon les données que j'ai reçues.

De 1997 à 2017 les effectifs juridiques du bureau du JAG se sont ainsi accrus:

Rangs, avocats militaires de la Force régulière:

                                   1997                     2003                   2013                  2017

Major-général                                                                        1                        1

Brigadier-général           1                           1

Colonel                          6                           8                         10                      8

Lt-Colonel                     23                         27                       32                      28

Major                             41                         49                       102                    108

Capitaine                       10                         40                        23                      62

Total:                             81                         125                      168                    207

En 1997, la Force régulière comptait 70,000 effectifs. En 2017 elle n'en compte plus que 65,000. De 1997 à 2017, l'augmentation des effectifs juridiques du JAG est de l'ordre de 256%.

En prenant ces chiffres, cela signifie que le bureau du JAG compte une ratio d'un avocat par groupe de 314 militaires alors que la ratio civile à l'échelle canadienne est d'un avocat par groupe de 454 citoyens. Si les effectifs des Forces canadiennes de 1997 avaient connu une augmentation du même ordre que celle du bureau du JAG, celles-ci disposeraient en 2017 d'une armée de 180,200 membres alors que, tel que ci-haut mentionné, elle n'en compte que 65,000.

Dans un tel contexte le taux d'accroissement des effectifs juridiques se veut pour le moins surprenant.

Alleged abuse, humiliation occurred at Canadian Forces bases

On April 24, 2016 CBC News reports that alleged abuse of Canadian soldiers at the hands of their own military during training exercises was widespread in the 80’s and 90s. 

This report followed a more detailed report by CBC News broadcasted on The National on April 10, 2017 that alleged torture by a dozen of ex-soldiers took place in 1984 at Camp Wainwright, Alberta.   

The Chief of the Defence Staff, General Jon Vance, has yet to respond to these allegations. Meanwhile, the Executive Director of the Canadian Centre for Victims of Torture, calls what happened to the soldiers “an embarrassment to Canadians.”

Operational Mishaps

The Editor's U.S. Military Justice and "Operational Mishaps": A Primer can be found here on the Just Security blog.

Not directly about military justice, but . . .

Luis Gómez Romero has a timely and informative essay on The Conversation about whether the Mexican armed forces should continue to be used as a police force. Excerpt:
In December 2016 Salvador Cienfuegos Zepeda, Mexico’s minister of defence, declared that fighting the war against drugs has “denaturalised” the Mexican military. Soldiers, he said, are not trained “to chase criminals”. 
If 52,000 soldiers are going to be deployed on a daily basis, he argued in a December 2016 article in the newspaper El Universal, they need clear rules to operate within a human rights frame. 
Cienfuegos demanded a law that would establish a finer legal distinction between public security (the purview of the police) and internal security (specific threats requiring military intervention). 
That (seemingly reasonable) request spurred today’s Congressional debate on internal security. Each of Mexico’s three main parties has presented its own bill. There’s the PRI’s, put forward by César Camacho Quiroz and Sofía Tamayo Morales; the PAN’s, stewarded by Senator Roberto Gil Zuarth; and the Revolutionary Democratic Party’s (PRD), tabled by Senator Luis Miguel Barbosa Huerta
It’s unclear exactly what kind of “certainty” these proposals might bring. There are differences between them, but all evoke déjà vu because they refer to organised crime as a potential threat to internal security and justify involving the army by pointing to the incapacity or corruption of local police. 
The military supports the PRI’s bill, which served as the basis for the “internal security” law that will soon come up for vote. Congress is currently weaving elements of the other proposals into the law’s structure to build consensus. 
Academics and NGOs have criticised this bill for its dangerously vague and broad language. 
Per article 7, threats to internal security include “any act or fact that endangers the stability, security and public peace.” No time limit is set for such military interventions. And article 3, advocates say, would authorise the executive to use the army to repress peaceful protest. 
The law’s all-encompassing definition of internal security would seem to defeat Cienfuegos’ ostensible purpose in demanding a law: to clarify the army’s role in law enforcement. 
But it quite likely meets his actual need: to protect his troops from criminal prosecution. Soldiers, Cienfuegos said in December 2016, are currently “dubious” about persecuting criminal organisations because they risk being accused of a “human rights-related crime”. 
That’s because, in 2011, the Supreme Court established that human rights violations committed by military personnel should always be subject to civilian, rather than military, jurisdiction. 
As currently drafted, Mexico’s internal security law would dramatically expand the rights of the armed forces in combating cartels – and anyone suspected of engaging in the drug trade – eliminating any concern about prosecution for violating those pesky human rights.

Sunday, April 23, 2017

Human shields -- another view

Global Military Justice Reform contributor retired Wing Cdr. U.C. Jha has written this op-ed on the human-shield case currently in the spotlight in India. Comments welcome (but you must use your real name).

Saturday, April 22, 2017

A tweet too far for AFT judge?

What's in a tweet? A non lawyer member of the Armed Forces Tribunal of India is in hot water over just that question. According to this article from The Wire:
Air Marshal (Retd) Anil Chopra is a member of the Armed Forces Tribunal, where courts martial are appealed. But his tweets raise questions about his impartiality.
Air Marshal Anil Chopra (L) tweeted that any "self respecting nation would have shot 100 stone pelters by now". Credit: Twitter/PTI
Air Marshal Anil Chopra (L) tweeted that any “self respecting nation would have shot 100 stone pelters by now”. Credit: Twitter/PTI 
New Delhi: It took only 140 characters for Air Marshal (Retd.) Anil Chopra, who is a serving member of the Lucknow bench of the Armed Forces Tribunal (AFT) to raise questions about the impartiality of the legal mechanism that is meant to handle appeals in cases involving crimes and misdemeanours by soldiers and officers of the Indian army.  
On April 12, soon after a video showing Kashmiri protestors heckling security forces on election duty started circulating on social media, Chopra – a highly decorated retired air force officer – took to Twitter to advocate that a hundred “stone-pelters” in Kashmir be shot. 
Chopra Tweet
While the Kashmir conflict has been a polarising issue on social media, this is the first time a serving judge or judicial official has bluntly spoken out in favour of actions whose legality is not only questionable but which may one day end up in a court room that he presides over. 
The Armed Forces Tribunal (AFT) is not just the primary internal dispute resolution body of the armed forces but is also the forum where courts martial appeals end up. It has several benches across the county, Chopra serves on the Lucknow bench. 
After facing severe criticism and perhaps realising the legal implications of what he had advocated, Chopra deleted his tweet. 
However, he did not stop at this. Two days later, when the army was facing widespread criticism over the decision of an officer to use a Kashmiri man, Farooq Ahmad Dar, as a human shield to deter or prevent stone pelting or perhaps simply as a warning to Kashmiri civilians, Chopra applauded this drastic and illegal move as an “innovative idea”. He also said he admired the Indian government’s decision to support the major who came up with this idea. . . .

Military Advocate General in the news

Brig. Gen. Sharon Afek
Military Advocate General
The Jerusalem Post has this lengthy profile of Brig. Gen. Sharon Afek, calling him a quiet transformer. Excerpt:
[H]e may be the most formidable military advocate-general in a long time, and the one most ready to address Israel’s international law challenges, having served as deputy military advocate-general and in top positions in the international law, Judea and Samaria, and air force departments. (Usually, the military advocate-general is expected to come from the prosecution or defense divisions, with no special international law background.) Despite his low-key public demeanor, no IDF staff member would ever submit himself to his incisive and quick questioning without being thoroughly prepared. 
But his legacy internationally and nationally will likely be determined by his fateful decisions in the Hebron shooter case, on war crimes probes before the ICC prosecutor, on the rape case against storied former general Ofek Buchris and key appointments like that of the first-ever Druse-Israeli Judea and Samaria chief prosecutor, Lt.-Col. Asem Hamed
Afek’s decision to indict Hebron shooter Elor Azaria for manslaughter, not the harsher murder charge and not the more lenient negligent homicide charge, has been his biggest decision to date.

Military judge to head National Judicial College

Captain Benes Z. Aldana, USCG
Captain Benes Z. Aldana, chief trial judge of the U.S. Coast Guard, has been named next president of the National Judicial College. Details here. Congratulations!

Two months arrest for denouncing corruption

CURIAThe Military Chamber of the Spanish Supreme Court admitted the appeal (cassation) of the military disciplinary proceedings presented by former Army Lieutenant Luis Gonzalo Segura against the judgment of the Central Military Tribunal of October 26, 2016.  The Court in the 2016 decision rejected the complaint filed by the former Lieutenant against the resolution of the Minister of Defense of October 29, 2014, confirming on appeal the agreement of the general chief of staff of the Army of July 16, 2014 by which two disciplinary sanctions were imposed on the former Lieutenant.

The first consisted in two months arrest for being the author of a serious offense consisting in “manifestations against discipline (…) or carrying them out through the communications media.” This was as a result of an interview he gave on a prime time program to Jose Miguel Monzon, while wearing his uniform.

The second consisted in his loss of a new posting for being the author of another serious offense consisting of “emitting (…) contrary expressions, carrying out disrespectful acts or adopting an attitude of disdain to (…) institutions or powers or persons or authorities that constitute (…) the Armed Forces and the Bodies that comprise it and other institutions or Bodies of a military nature; as well as the military authorities, when they do not constitute a more serious crime or felony.”

According to the Supreme Court, this could have been a violation of the right to due process (art 24.2 of the Constitution) and the principle “non bis in idem” (double jeopardy) for the double disciplinary sanction for the same acts, as well as an eventual violation of the right to the presumption of innocence.

The Supreme Court, however, has not pronounced itself on the pre-judicial question presented by the lawyers representing Luis Segura, in which they request, by means of the Supreme Court, that the European Court of Justice give an opinion as to whether the disciplinary measures imposed on a member of the military for denouncing publicly corruption is incompatible with Directive 2000/78/CE of the Council, of November 27, 2000.   

The Military Chamber of the Supreme Court is the highest level of Spanish justice that can resolve this question or transfer it to the European Court of Justice.  In either case, it cannot remain silent in the face of this question, it is obliged to pronounce itself, stated Segura’s lawyer.  Since the Central Military Tribunal is comprised of three persons -- two lawyers and one who is not a lawyer -- it is not independent; consequently, either the Supreme Court or the European Court of Justice should decide the case, he added.

ROK crackdown on gay sex in the army

The South Korean Army seems to be cracking down on gay sex, judging by this article. The campaign includes the use of social media to secure evidence. Excerpt:
Growing evidence of an alleged investigation into homosexual acts in the South Korean army including images of conversations on gay dating app Jack’d between service members and secret service agents is causing an uproar, with some human rights groups calling for the army general accused of giving the order to track down gay soldiers to step down. 
Captured images of conversations on the dating app show one user opening up a dialogue in an ordinary manner, which then leads to a series of questions in an attempt to identify and track down the other party involved. 
In an audio file of a conversation recorded during an interrogation, investigators were heard verbally threatening the accused soldier, asking personal questions such as “what would your parents think if they found out?” 
One lieutenant whose name is being withheld was charged earlier this week with breaching the country’s military laws, after a video surfaced on social media allegedly depicting him engaged in sexual intercourse with another man.

Friday, April 21, 2017

Italian army officers on trial

ANSA reports that:

A Rome military judge on Thursday sent five Italian army officers to trial June 12 for alleged fraud in allegedly ordering lighter and cheaper armour for vehicles in Afghanistan. A sixth man, an army colonel, hanged himself on April 6.

A challenge for Egypt's military justice system

This morning's New York Times has this article about the emergence of a disturbing video of Egyptian soldiers shooting unarmed men in the Sinai Peninsula. The question is whether this will go down as merely an instance of impunity or spark serious military justice proceedings. It already stands as yet another milestone in the growing series of incidents in which criminal conduct by military personnel of various countries (the Blackman case in the UK, the U.S.'s urinating marines immediately come to mind) has become widely known because of video technology available on inexpensive and ubiquitous bodycams and smartphones.

Military court convicts Cameroonian journalist

A military court in Cameroon has convicted Ahmed Abba, a reporter for Radio France International, on charges of "non-denunciation of terrorism" and "laundering of the proceeds of terrorist acts." The conviction will be appealed. The Committee to Protect Journalists has protested. Details here.

What does Chinese civil-military integration mean for the courts?

The press outside of China has recently focused on China's civil-military integration. An article in the April 20 edition of Hong Kong's South China Morning Post (SCMP) had the following comments. (More serious -- and eminently readable -- analysis of the program can be found here):

China’s military further opened its research and development programmes to private companies, inviting them to take part in projects worth an estimated 6 billion yuan (US$870 million or HK$6.78 billion), state media reported.....This past January, he [Xi Jinping] authorised the creation of the Central Commission for Integrated Military and Civilian Development to coordinate policies and decisions towards that end.But obstacles remain, with a major one being trust, according to He Qisong, a defence policy specialist at the Shanghai University of Political Science and Law... “When it comes to key technologies in the defence industry, private companies can hardly gain any trust from the army in matters involving secrecy,” He said. Retired PLA major general Xu Guangyu said new laws were needed to clarify obligations of businesses handling classified work, as well as to define the commercial benefits they could reap from cooperation with the military.

But it appears neither the analysts the SCMP contacted nor the newspaper itself did any further homework. If they had, they would have uncovered an April 11 article on one of the People's Liberation Army websites, that republished an article from a Wechat public account. For those not familiar with China, Wechat is the most popular social media platform, that permits blog-like writing in what are called public accounts. The article, titled "Civil-Military Integration is Inadequate and What do You Know About the Countermeasures," drills down on the underlying legal problems. The author has a Ph.D. in law and formerly taught at the National University of Defense Technology in Changsha. The author illustrates the difficulties of implementing high level reform in China when the underlying legal infrastructure is unchanged. The article points to underlying issues that I have previously discussed on this blog. Those include:
  1. gaping holes in the legislative framework; 
  2. when legislation exists, it conflicts with other legislation; 
  3. lack of effective dispute resolution.
 On the substantive law issues:
There is a bias and even conflict between existing military regulations and national laws and regulations. Some military legislation sets up a self-enclosed, self-contained system which does not coordinate with or supplement the Contract Law, Arbitration Law, Government Procurement Law, Product Quality Law and "business scope registration management regulations" and other relevant laws and regulations. For example, the "Provisional Regulations of the People's Republic of China Private Enterprise" "Individual-owned Enterprise Law" "Partnership Enterprise Law" "Company Law" etc. clearly stipulate that enterprises must not engage in military industry....Concerning civil-military integration, there are many "red head documents," [official Party/government /military documents], but those policy documents cannot play the role of broad, long-term, stable, and highly efficient legal norms. There are few legal norms, primarily administrative regulations and departmental rules, with a relatively low legal status, in-effective, poorly coordinated, weak binding effect, and are not fit for the needs of the further development of civil-military integration.  At the same time, many regulations and documents promoting civil-military integration have a relatively highly classified, making it difficult to make them public, but not helpful for entities to participate in national defense and military matters, difficult to effectively protect one's rights, but making it hard for these regulations to be actually implemented.  
Dispute resolution:
Currently, there are situations involving the procedure for the resolution of military-related civil disputes in which the military courts cannot accept the cases, nor can the local [civilian] courts or arbitration institutions. According to the relevant judicial interpretation of the Supreme People's Court in 2012 [previously mentioned on this blog], the military court only has jurisdiction over four types of civil disputes, and does not hear civil disputes related to civil-military integration. In addition, the local courts or arbitration institutions face the problem in trying or arbitrating civil disputes that the military has defense judicial immunity, so even after the trial or arbitration, the decision or arbitral award cannot be enforced. As a result, local courts and arbitration institutions do not want to accept civil-military civil disputes. At present, civil-military disputes, including civil-military integration are basically resolved through mediation or conciliation, but the civil-military civil disputes in the development of military integration are complex and varied, and take diverse forms. If the dispute cannot be resolved through legal proceedings, and cannot achieve the goal of fair, just and efficient [dispute resolution], it fails to meet the demands of a law-based economy based on the market economy.
So, although the grand policy has been announced and publicized, on the ground implementation appears to another story.  The silos between the military and civilian economy continue to exist. What business will voluntarily do a deal if no court or arbitration institution can hear a dispute if the deal goes bad?

Thursday, April 20, 2017

Doublethink in Pakistan

The debate on whether or not the military courts should exist is no longer relevant after the two-year extension.*

The military courts were founded on the principles of safeguarding the judiciary alongside a means to deliver quick and efficient justice.**

From this editorial in The Nation (footnotes and emphases added)

* No longer relevant? All debate must end when the Constitution has been amended?

** "We had to destroy the village in order to save it."

Navy Regs and revenge porn

Task & Purpose reports that the Secretary of the Navy has issued an interim change to the mother of all regulations, U.S. Navy Regulations, 1990, to address the "Marines United" revenge porn problem:

UNCLASSIFIED
ROUTINE
R 181436Z APR 17
FM SECNAV WASHINGTON DC
TO ALNAV
INFO SECNAV WASHINGTON DC
CNO WASHINGTON DC
CMC WASHINGTON DC
BT
UNCLAS

ALNAV 021/17

MSGID/GENADMIN/SECNAV WASHINGTON DC/-/APR//

SUBJ/U.S. NAVY REGULATIONS, 1990 INTERIM CHANGE//

REF/A/DOC/SECNAV/16SEP90//
NARR/REF A IS THE U.S. NAVY REGULATIONS.//
POC/W. RECORD/CAPT/JAGC/USN/OJAG (CODE 20)/-/LOC: 1254 CHARLES MORRIS
STREET, SE, WASHINGTON NAVY YARD, DC/-/EMAIL:  WARREN.RECORD
@NAVY.MIL/-/TEL:  (202) 685-7057, DSN 325-7057//
W. PIGOTT/COL/USMC/JAD/-/LOC:  3000 MARINE CORPS PENTAGON, RM 4D557,
WASHINGTON DC/-/EMAIL:  WILLIAM.N.PIGOTT@USMC.MIL/-/TEL:  (703) 693-9304, DSN 
223-9304//

RMKS/1.  Pending formal amendment to reference (a), this interim change adds 
a new article, Article 1168 to reference (a).  This interim change is 
effective upon the release of this ALNAV.

2.  Article 1168 of reference (a) is added to read as follows:
    a.  1168.  Nonconsensual distribution or broadcasting of an image
        (1) The wrongful distribution or broadcasting of an intimate image is 
prohibited.
        (2) The distribution or broadcasting is wrongful if the person making 
the distribution or broadcast does so without legal justification or excuse, 
knows or reasonably should know that the depicted person did not consent to 
the disclosure, and the intimate image is distributed or broadcast:
            (a) With the intent to realize personal gain;
            (b) With the intent to humiliate, harm, harass, intimidate, 
threaten, or coerce the depicted person; or
            (c) With reckless disregard as to whether the depicted person 
would be humiliated, harmed, intimidated, threatened, or coerced.

3.  Distribution means the act of delivering to the actual or constructive 
possession of another, including transmission by electronic means.

4.  "Broadcasting" means the act of electronically transmitting a visual 
image with the intent that it be viewed by a person or persons.

5.  An intimate image is any visual depiction, including by electronic means, 
that:
    a.  Includes another person who is identifiable from the depiction itself 
or from information conveyed in connection with the depiction;
    b.  Depicts that person engaging in sexually explicit conduct or depicts 
the private area of that person; and
    c.  Taken under circumstances in which the person depicted had a 
reasonable expectation of privacy.

6.  "Sexually explicit conduct" is defined in Part IV, paragraph 68b, Manual 
for Courts-Martial (2016 Edition).

7.  "Private area" is defined in Part IV, paragraph 45c, Manual for Courts-
Martial (2016 Edition).

8.  In lieu of entering this interim change in reference (a), make a bold 
letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and 
file this ALNAV in front of reference (a).

9.  This interim change will be incorporated into the next printed revision 
of reference (a).

10.  Released by Sean J. Stackley, Acting Secretary of the Navy.//

BT
#0001
NNNN
UNCLASSIFIED//

Wednesday, April 19, 2017

The Influence of the European Court of Justice

CURIA

The Third Chamber (Sala III) of the Spanish Supreme Court overturned its earlier decision of 24 november 2015, which had found in favor of five candidates who were excluded from attending the School to become members of the National Guard because they had reached their 30th birthday during the year 2012.  They had alleged that this age limit constituted discrimination contrary to the principle of equality and free access to public service positions proclaimed by the Constitution.


The Spanish Supreme Court modified the criteria established in this earlier case due to a judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) of 15 november 2016 in response to a pre-judicial question presented by the Contentious-Administrative Chamber of the Superior Court of Justice of the Basque Country. The European Court of Justice responded that the requirement of 35 as the maximum age to enter into the Ertzaintza (the Basque police force) was not discriminatory because  it rested on an objective and reasonable basis, which excluded any violation of Directive 2000/78/CE, relative to the establishment of a general framework for equality of treatment in employment.

Given the differences in the cases it appears to this observer that the Spanish Supreme Court could also have set 35 as the maximum age to enter the National Guard School without violating the EU Directive or the CJEU's decision, but it clearly seems to have chosen not to.

Bahrain makes it official

Bahrain has changed its laws to permit the trial of civilians by military courts. Excerpt from this account:
Bahraini King Hamad bin Isa Al Khalifa approved on Tuesday amendments to some of the military law provisions after the amendments were passed by the Shura Council and the Council of Representatives. 
The king’s approval grants the military judicial system the authority to investigate terrorist cases that target Bahrain. 
A week ago, Bahrain’s parliament approved a constitutional change allowing military courts to try civilians. The bill revises a portion of Bahrain’s constitution by removing limitations on who military courts can try. 
On Tuesday, King Hamad issued a royal decree approving the amendment to the military judicial system. “The amendment added two clauses (17 ditto) that stipulated the crimes committed by, or in cohort with, terrorist(s) that come under the jurisdiction of military courts whenever committed against Bahrain Defense Force (BDF) or National Guard personnel, paraphernalia, aircraft, ships, vehicles, buildings, weapons, installations, camps, maneuvers, mobilizations, facilities, secrets, documents, records or official motorcades under military protection, routes, military operation zones, terrorist or state security crimes anywhere inside the Kingdom of Bahrain or abroad.”  
The Prime Minister, the BDF Commander-in-Chief and the President of the National Guard have been tasked, each according to his respective domain, to implement this law which becomes effective as from the day following the date of its publication in the Official Gazette.

Final Exam: Pakistani Military Justice (3 credits)

A Pakistani mob has lynched a student suspected of blasphemy. A committee of the country's Senate is demanding that the case be tried before a military court. The civilian courts are open. Murder is a crime under Pakistani law.

1. Is this a proper use of a military court, even by the standards of the 23rd Amendment to the Constitution of Pakistan and the Pakistan Army (Amendment) Act, 2017?

2. Is it a violation of separation of powers and prosecutorial independence for a legislative body to attempt to exert pressure in this way?

(Comments are invited; use your real name.)

Jack of all trades?

The Judge Advocate General is statutorily responsible to the Minister of National Defence (MND) for a mélange of functions. This includes: 1. the provision of legal advice to the Governor General, the MND, the Associate MND, the Department of National Defence (DND), and the Canadian Forces (CF) in matters relating to military law; 2. the defence and prosecution functions of the military justice system; as well as, pursuant to Section 9.2 of the National Defence Act, 3.  the superintendence of the administration of the military justice system, and 4. the conduct of regular reviews of the administration of military justice.

Superintendence

The role of superintending the military justice system requires the JAG to: 1. Control the provision of legal advice and services to the military justice system; 2. Ensure the efficient planning, organization, staffing, directing, and administering of the courts martial and summary trial processes; 3. Provide qualified legal officers to act as prosecutors and defending officers at courts martials.

The JAG also has the responsibility of selecting who, when and how periodic reviews of the administration of military justice will be conducted. This provides him with a measure of authority and control over the evolution of the military justice system and a certain influence.

However, at present, it appears that the JAG lacks the requisite ‘independence’ from other branches of governments to perform these functions. He reports to a political minister. His advisory function requires him to be loyal and partisan to the interests of both DND  and the CFs as an institution as well as the chain of command.

Spanish Supreme Court military justice decisions

The Supreme Court of Spain has an excellent user-friendly website. Using a drop-down menu you can easily access decisions having to do with military justice.

Committee Against Torture discusses Pakistan's military courts

The UN's Committee Against Torture heard a number of comments about Pakistan's military courts at its meeting yesterday in Geneva, Dawn reports. Excerpt:
Ms Graer and E. Belmir raised the issue of powers of military courts to try civilians, asking why the trials were conducted in secret and why no monitors were allowed? She noted that there were no written judgements of cases tried in military courts.
*   *   * 
Commenting on the CAT’s reservations against military courts, Saroop Ijaz of the Human Rights Watch pointed out that the government had not fulfilled its commitment to introduce reforms to improve the civil justice system. In fact, it could continue ad infinitum as the government no longer had the motivation to introduce the reforms it promised in January 2015.

Tuesday, April 18, 2017

Second front opens in the case of Pakistan's military courts

The legal controversy over Pakistan's military courts has jumped the border into India, where a public interest litigation has been filed by activist Rahul Sharma. According to this account, the PIL asks the Delhi High Court to direct the Indian government to invoke the jurisdiction of an international court and to file a habeas corpus petition in Pakistan seeking the release of an Indian citizen who has been condemned to die on a charge of spying.

Subcontinent military courts compared

Major Navdeep Singh
The Times of India blog presented this interview with Global Military Justice Reform contributor Major Navdeep Singh about military courts in India and Pakistan. Excerpt:
How does a Pakistani military court differ from an Indian one? 
Civilians are not tried in military courts in India. Military law is primarily meant for military offences and enforcing discipline in the military. Further, persons charged with espionage are granted all rights as are available to our citizens and in fact in many instances are ultimately acquitted since our judiciary is not a part of the state and is fiercely independent of official influence or emotions of deshbhakti, and rightly so. What sets us apart is the strong oversight over military justice and other administrative actions of the military by our constitutional courts – the high courts and the Supreme Court and their utmost deference to the precious rights of soldiers and their families, which has kept unbridled powers in check.

Démodé and passé!

The Canadian Military Criminal Justice System
is Behind the Times
Section 130 of the Code of Service Discipline incorporates offences punishable under the Criminal Code of Canada as well as any other penal provisions in the Canadian corpus of law.  These offences then fall under the definition of “service offences” [Section 2 of the NDA refers]. The transformation of Criminal Code offences into service offences carries with it a number of adverse consequences for the accused impacting on his fundamental, constitutional, procedural and sentencing rights.

Foremost among these rights is the constitutional right to a jury trial guaranteed by section 11(f) of the Charter of Rights and Freedoms. In lieu of a jury trial, the accused is given a trial by a General Court Martial composed of a Panel of five military members and presided over by a military judge.  

The accused before a service tribunal is also deprived of the right to a preliminary inquiry as well as the benefit attached to a hybrid offence under the Criminal Code which can be prosecuted either as an indictable offence or as a summary conviction offence.  

Also, in comparison to a prosecution before a civilian tribunal, the accused is not entitled to a suspended sentence, a conditional discharge, a probationary order and a sentence of imprisonment to be served within the community or his unit.

Monday, April 17, 2017

Another Pakistani bar association sues

The Lahore High Court Bar Association has filed a petition with the Supreme Court of Pakistan attacking the 23rd Amendment. Details here. Excerpt:
The LHCBA prayed to the apex court to declare 23rd Constitutional (Amendment) Act, 2017 (Act XII of 2017), and the Pakistan Army (Amendment) Act, 2017 (Act II of 2017) invalid for being repugnant to the basic structure and salient features of the Constitution.

It also prayed that since the constitutional amendment had effectively abrogated and taken away people’s fundamental rights guaranteed by chapters I and II of the Constitution, it may kindly be declared that the same cannot remain the part of the text of the Constitution of Pakistan. 
*   *   * 
The LHCBA submitted the Constitution envisaged, without any shadow of doubt, trichotomy of powers with all the three organs of the state —legislature, executive and judiciary – having defined areas of jurisdiction and functions. 
“Any attempt even by way of a constitutional amendment which destroys the basic structure of the Constitution itself is clearly beyond the powers of the legislature and, therefore, the 23rd Constitutional Amendment is liable to be struck down by the apex court on the touchstone of theory of basic structure and features of the Constitution,” it contended. 
The LHCBA further submitted that in order to ensure the independence of judiciary, any such court or tribunal which is not subject to any administrative control or judicial review cannot be allowed to be grafted into the judicial framework of the Constitution.

Election fallout in Turkey

Sunday's voting on constitutional changes in Turkey will effect the military justice system. According to this report:

Military court annulled 
The third issue to be implemented immediately will be the removal of military courts. The Military Court of Appeals, the Supreme Military Administrative Court and military courts were annulled. The judges serving here will be appointed to the civilian courts in HSYK [the Supreme Board of Judges and Prosecutors] or to the active duty in the Defense Ministry; those who have passed the age limit can be retired.

A sentence for rape

Hawai'i Army Weekly, a military website, reports that an officer convicted of rape was sentenced to 18 months' confinement, along with a dismissal, total forfeitures and, oh yes, a reprimand. This was not the result of a pretrial agreement. The case was tried to a jury, so the sentence was determined by the members. Eighteen months? There's got to be a story behind this. Please comment if you know if (use your own name when posting).

In another 25th Infantry Division case, a noncommissioned officer was acquitted of sexual assault. That case was also tried to a jury (which included enlisted representation).

What's really going on with the Jadhav case?

Barkha Dutt
The Washington Post has this opinion piece by Barkha Dutt about the military trial and death sentence of an Indian citizen. Excerpt (and teaser):
[W]hether [Kulbhushan] Jadhav is a spy is moot. What is beyond dispute is that the Pakistan Army’s declaration of a death sentence for him via a clandestine court-martial breaks with all standard practice; it is almost an open invitation to escalation from India. 
Shockingly, the announcement of Jadhav’s death sentence this past week was made by the Pakistan Army and not the government’s foreign office. The sentencing seemed to take the Nawaz Sharif-led civilian government entirely by surprise, even as Indians were convulsed with rage. Pakistan’s foreign minister Sartaj Aziz said last year that there was no “conclusive evidence” against Jadhav. So the sudden announcement appears to be as much about Nawaz vs. the Pakistani Army as it is about India vs. Pakistan. With Pakistan’s military stripping away the veneer of authority from its civilian prime minister, the aim could be to further weaken him and ensure that he is unable to steer the wheel in the direction of a dialogue with India.

Sunday, April 16, 2017

Bar Council to challenge Pakistan's 23rd Amendment

The Pakistan Bar Council, following in the footsteps of the Supreme Court Bar Association, will be filing a constitutional petition in the original jurisdiction of the Supreme Court of Pakistan, challenging the 23rd Amendment's revival of military courts. Details here.

The challenges are beginning to mount up. Excerpt from another report:
Barrister Zafarullah Khan of Watan Party filed a petition at the Lahore registry of the apex court pleading that the establishment of the military courts is against the basic spirit of the Constitution.

He contends that Article 175 of the Constitution defines separate roles for executive and judiciary. Therefore, he says, administrative officers cannot be appointed as judges.

He asks the court to declare the 23rd amendment void for being an extra constitutional act.

Saturday, April 15, 2017

DNA testing

One of the major developments in post-World War II military justice has been its assimilation to general criminal justice. This has manifested itself in a host of ways, including rules of evidence, efforts to achieve judicial independence, concern for victims' rights, and so forth. Here, from New Zealand, is another example: a proposal to require DNA testing of military offenders on the same terms as it is required of civilian offenders. Details here.

Scope of accountability bill debated in Pakistan

Dawn reports here that parliamentarians in Pakistan are debating whether generals should be swept in (along with judges) under a proposed National Accountability Commission Act, to replace the National Accountability Ordinance 1999.
The existing National Accountability Ordinance, promulgated by military dictator General Pervez Musharraf in 1999, brought public officeholders, civil servants, politicians and even civilians under the law but exempted the personnel of armed forces as well as judges of superior courts. 
However, there are also legal complications due to which the committee is undecided on applying the law on judges and the military persons. 
Barrister Mohammad Ali Saif, a member of the committee, told Dawn that though there was a consensus among members to bring both the categories under the law, the committee would have to consider certain legal issues as well. 
He said the Pakistan Army Act 1952 also deals with charges of corruption and corrupt practices in the military. The judges of the superior judiciary may face trial under Article 209 of the Constitution. 
Laws already exist for the accountability of military personnel as well as the judges of superior courts, he added. 
Barrister Saif said the committee had to examine the existing laws of the two institutions before applying the NAC on them.

U.S. Army charges a retired general with six specifications of rape

The U.S. Army has charged Major General James Grazioplene, who retired in 2005, for sexual assault of a minor as long ago as 1983, according to this report. The Uniform Code of Military Justice applies to retired regulars, although such trials are infrequent.

Two other two-star retirees have been prosecuted in the past: Major General David Hale of the Army in 1999 and Rear Admiral Selden G. Hooper of the Navy in 1957.

Was there no other forum that could prosecute these charges? It will be interesting to learn where the offenses are said to have been committed and whether civilian authorities could have pressed charges.

Friday, April 14, 2017

Ukrainian legislation signed

Ukraine has enacted new military justice legislation. According to this sketchy report:
The purpose of the law is to increase the level of military discipline of servicemen, as well as conscripts and reservists going through military meeting, improve the procedure for bringing these persons to responsibility for committing military administrative violations. 
The law provides for the strengthening of responsibility of servicemen, as well as those who are liable for service and reservists during the military meetings arranged for violation of the rules on driving or cars operation committed in a state of alcoholic intoxication, their commitment of military administrative offenses, in the event of non-fulfillment (improper performance) of their official duties, violation of military discipline or public order.
If any reader has further details, please post a comment (over your own name, per blog policy). Thank you. 

Welcome to Lahore (but don't expect to find an attorney)

Even though it's only April and there's already stiff competition, Global Military Justice Reform today confers the George III award on the Lahore High Court Bar Association for Worst Decision of the Year. Consider this:
Lahore High Court’s Bar Association said on Friday that it would take action against any lawyer who extended his services to former Indian naval officer Kulbhushan Jadhav, who has been sentenced to death by a Pakistani military court. 
"The LHCBA has unanimously decided to cancel the membership of any lawyer who offers his services to Indian spy Kulbhushan Jadhav," Lahore High Court Bar Association Secretary-General Amer Saeed Raan said after a meeting of the bar on Friday. 
He said the bar has asked the government not to “bow to any foreign pressure”. 
"India has declared Jadhav its son and is putting pressure on the Pakistani government for his release. We demand that the Indian spy who is involved in playing with lives of Pakistanis should not be spared and the government (should) ensure his hanging," he said. 
Earlier, Pakistan's top military commanders under army chief Gen Qamar Bajwa made it clear that "no compromise" shall be made on such "anti-state acts". 
Jadhav’s death sentence was confirmed by army chief Gen Bajwa after the Field General Court Martial found him guilty of "espionage and sabotage activities" in Pakistan. 
Although India has acknowledged that Jadhav had served in the navy, but it denies charges of Jadhav being a spy. It claims that Jadhav was abducted from Iran, a charge Pakistan denies.
Obviously, this case is a bone of contention between the two countries, but really! Shame!

Ugandan military defense counsel objects to involuntary retirement

A defense counsel in the Uganda People's Defence Force is suing over his involuntary retirement from the service. According to this report from The Observer:
A senior UPDF officer who was involved in the botched treason trial of General David Sejusa and the stalled treason trial of Nakawa municipality MP Michael Kabaziguruka has sued the government over unfair dismissal from the army. 
Major Ronald Iduuli lodged the suit following his sacking from the General Court Martial in Makindye, where his last position was that of a defence counsel. In his suit filed on April 6, 2017 at the civil division of the High [C]ourt, Iduuli is demanding over Shs 1 billion in compensation and damages. 
Iduuli has attached three government and army institutions or officers as respondents to his case. They are the attorney general, the chief government legal adviser; Maj Gen Joseph Musanyufu, the joint chief of staff; and Col Dr Gordard Busingye, the UPDF deputy chief of legal services. 
Iduuli, who joined the army in 1998 as a cadet officer, before becoming a lawyer attached to the court martial, says he served as a tank commander during the UPDF offensive against the rebel ADF in Congo and as a tank company commander in Operation Iron Fist against the LRA rebel group in northern Uganda. He says he suffered a very serious injury, which left him with a broken arm. 
Now, through Ojok Advocates, Iduuli says that on July 25, 2016, he was directed by the UPDF chief of legal services to vacate the office of defense counsel of the General Court Martial but was not appointed to any other position.

All-time top 10

Speaking of data, here are the top 10 jurisdictions since Global Military Justice Reform was launched at 4:07 p.m., January 12, 2014:

Graph of most popular countries among blog viewers
EntryPageviews
United States
199386
Canada
43377
Russia
29522
France
15375
Germany
14724
Ukraine
11965
India
9942
United Kingdom
7906
China
3325
Turkey
2126