here for Military Times.
The measure now goes to the Senate.
The measure now goes to the Senate.
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).
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.
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.
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.
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.
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?
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.
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
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.
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
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 (firstname.lastname@example.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). . . .
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.
The Central Military Commission enacts military regulations according to the Constitution and the laws.This development was flagged in the 2014 Fourth Plenum Decision:
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.
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 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.
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.