Wednesday, July 19, 2017

Summary proceedings: Canada impermeable to worldwide advances in human rights legislation?


In a November 24, 2014 presentation before the UN High Commissioner for Human Rights in Geneva, Switzerland, Brigadier-General (ret’d) Arne Willy Dahl, Honorary President of the International Society for Military Law and the Law of War, noted that most countries have systems dealing with disciplinary offences of a minor nature by summary punishments. He observed: 
Summary punishments, is almost without exception a matter for the Commanding Officer, and may pose their specific concerns with regard to the human rights of the accused
BGen Dahl went on to say:
. . . Military justice has its roots in the authority of the commanding officer, and his need to maintain discipline among his troops. When Alexander the great took his army to Persia or Roman legions fought in North Africa it would have been utterly impractical to bring military cases back to a court in Macedonia or in Rome. 
             Canada's Summary Trial procedure is frozen in time
The requirement for summary proceedings was first recognized by the British Parliament with the passage of the Mutiny Act in 1689.  Two centuries later, summary trials were still in existence under British military law when the Canadian Parliament passed An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868to govern Canada's armed forces.     

In recent years, the European Convention of Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, in particular the United Kingdom and Ireland, to completely overhaul the Summary Trial procedure. 

As shown in the table below, the Summary Trial procedure, as practiced in Canada today, has been all but abolished among our allies. Along with many South Asian countries such as Bangladesh, India, Nepal, Pakistan and Sri Lanka, Canada is one of the last bastion for this ancient summary trial procedure. 


Nearly 800 military members in Canada face a summary trial each year. These disciplinary proceedings, which are heard by that soldier’s Commanding Officer, could lead to a sentence with ‘true penal consequences’ such as detention, demotion, a large fine, or a reprimand. A summary trial conviction may also result in a criminal record.  

Amazingly, however, there is no right to legal counsel at a summary trial even if the accused is being tried on Canadian soil nor is there a transcript of proceedings or a right of appeal.  Moreover, the Commanding Officer hearing the summary trial has no legal training. The Summary Trial procedure is also devoid of any rules of evidence, meaning there is no protection against the compellability of the accused as a witness and against self incrimination. There is no right to spousal privilege. Adverse inferences may be drawn from the accused’s silence and hearsay evidence may be taken and fully relied upon.

No other Canadian faces such a one-sided penal justice process


In 2015 Canada’s Parliament introduced Bill C-71 which was aimed at modifying the Summary Trial procedure. However, the authenticity for such reforms is questionable, because, with the dissolution of Parliament prior to the last Federal election, within weeks he Bill died on the order paper, and nearly two years since, there is no indication that it will be re-introduced.

Why is this journalist being charged before a military court?

A journalist in Cameroon is facing trial in a military court on charges of promoting terrorism. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. The African Charter on Human and Peoples' Rights has been interpreted to forbid such trials.

Why is this case being sent to a military court?

Crime Russia reports here on another case that has been sent to a military court:
The investigation of the criminal case against two members of the Shamil Basaev's gang Ramzan Belyalov and Magomed Mazdaev has been completed, the materials have been sent to the North Caucasus District Military Court, the press service of the Russian Federation's press service reports. 
Figures are charged with Terrorist Act, Banditry, Hostage Taking, and Illegal Storage of Narcotic Drugs. 
As established by the investigation, Belyalov and Mazdaev voluntarily joined the Basaev's gang, and afterwards took part in the commission of a number of grave and especially grave crimes. In particular, in the terrorist attack on Budennovsk, when an armed gang, a total of 160 people, attacked the city. As a result, 129 people were killed, 317 were injured, 1586 people were taken hostage.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Tuesday, July 18, 2017

Civilian oversight in Canada

Michael W. Drapeau and Joshua M. Juneau have published a new 70-page monograph titled "Calling the House to Order: After 70 Years of Peace It's Time for Greater Civilian Control over the Canadian Military Criminal Justice System." It can be downloaded here.

The study was presented at the 30th annual conference of the International Society for the Reform of Criminal Law in San Francisco, California on July 8-13, 2017. It calls upon the Minister of Justice to exercise her statutory ‘superintendence function’ so as to exercise greater civilian control over the Canadian military criminal justice system.

Summer doldrums

Not to worry, Dear Reader, Global Military Justice Reform has not gone missing. There's simply not that much going on right now. A few developments you may have missed:

  • It looks like the Philippines will extend martial law beyond its current geographical scope and duration.
  • The military appellate court in Pakistan has denied Kulbhushan Jadhav's request for clemency, which has now gone to the Chief of Army Staff; Jadhav's mother may get to visit her son. The Vienna Convention issue remains in play at the International Court of Justice.
  • A Jordanian military court has sentenced the soldier who killed several American soldiers to life imprisonment. (Watch for clemency.)
  • IDF Sgt. Elon Azaria has been granted house arrest pending appeal.
  • A Moscow military court has handed down sentences ranging from 11 to 20 years for the murderers of Russian opposition figure Boris Nemtsov.

Friday, July 14, 2017

Erosion of judicial independence of India's Armed Forces Tribunal

The Indian Express reports here on changes in the arrangements surrounding the Armed Forces Tribunal. Not good news for judicial independence:
The Union government has changed the rules governing appointment in the Armed Forces Tribunal (AFT), giving more powers to the Defence Secretary who would now have a role in ordering inquiries against members of the tribunal and their removal. 
Contravening a Constitutional Bench judgement of the Supreme Court which directed the placement of tribunals under the Law Ministry, the new rules reiterate that the AFT will function under the Ministry of Defence which, incidentally, is the ministry against which all orders of the AFT are to be passed. 
The rules also reiterate the role of the Defence Secretary in selecting the Members of the tribunal and even consultation with the Chief Justice of India (CJI) has been abrogated. 
The Defence Secretary and other bureaucrats would now have a role in ordering inquiries against members of the tribunal and their removal, which could only be undertaken by a Supreme Court judge till now. 
The facilities and benefits of retired High Court Judges appointed as Judicial Members have been downgraded to regular Group A (Class I) officers of the Central Government. 
While the SC had directed a longer tenure for tribunal members without a provision for re-appointment to ensure independence, the new rules have decreased even the existing tenure to 3 years and have provided for re-appointment by a selection committee, of which the Defence Secretary is a member. This, despite the fact that the Defence Secretary is the first respondent party in all litigation in AFT. 

Happy Bastille Day

Thursday, July 13, 2017

Australian military justice in a nutshell

The Conversation has posted this very short description of the Australian military justice system, following the publication of leaked defence force documents alleging that special forces personnel committed acts such as possible unlawful killings in Afghanistan.

Tuesday, July 11, 2017

Draft available of proposed Manual for Courts-Martial changes

The Defense Department has posted a notice of the availability of proposed changes to the Manual for Courts- Martial that would implement the Military Justice Act of 2016.

If you send in a comment to the government, please also post it on this blog so others will benefit. Don't forget to comment here using your own name, in accordance with R.B.R. 1.*

While it is of course a good thing that DoD is circulating these materials for public comment, as it has done since the Military Rules of Evidence were drafted, but hold the euphoria. The proposed changes implement a measure that was itself never the subject of a moment of congressional hearings open to the public. [Cue Bronx cheer for the House and Senate Committees on Armed Services.] An opportunity to comment on implementing regulations is better than nothing, but the fact is that in critical respects the horses have already left the barn.

* Global Military Justice Reform Blog Rule 1.

Saturday, July 8, 2017

GAO report on separation of personnel with mental health conditions

The San Antonio Express-News has this report on the "bad paper" separation of military personnel. Excerpt:
The Government Accountability Office reported in May that the military discharged almost 92,000 service members for misconduct from 2011 through 2015. More than 57,000 had been diagnosed with a mental health condition in the two years prior to their separation, and fewer than 3,500 received honorable discharges. 
The study identified post-traumatic stress disorder, traumatic brain injury and depressive disorder among nine conditions linked to misconduct. The military gave the most common diagnosis, for adjustment disorder, to nearly 32,300 men and women. 
The prevalence of that diagnosis alarms veterans advocates. They assert that the Defense Department has shifted tactics in an ongoing effort to remove rather than treat service members with mental health disorders to avoid the cost of providing them disability and retirement benefits.

Ticket to ride

The Speedboat War continues at Guantánamo, with the military commission judges in a pushing and shoving contest with the admiral who runs the place over whether they will get special transportation to and from the business end of the base or have to ride the ferry like everyone else. Carol Rosenberg has the story here.

Friday, July 7, 2017

Is the UCMJ a suitable model for dealing with police killings?

Prof. Ronnie Dunn
Professor Ronnie Dunn of Cleveland State University tosses out the following idea in this interview:
And my mind keeps turning to the military, for example. I'm a veteran. And the military is held to the standards of the uniform code of military justice. So my thought is, in that the police are a paramilitary institution, that we might need to -- and this is totally thinking out of the box -- move to some type of judicial system or tribunal in regards to police-involved shootings, these controversial police-involved shootings. These cases are tried in a separate court, for example. Currently, many jurisdictions have drug courts, they have special dockets for veterans and other things of that nature. So I'm just trying to think of how we might be able to move to a system that can provide a greater degree of accountability and justice.
It's not clear whether he is suggesting a system of internal criminal discipline à la the UCMJ or a separate part of the civilian courts with special jurisdiction over charges arising from police killings. Is either a good idea? Or neither?

Justice Leonen's "Mindanao" dissent

History teaches us that to rely on the iron fist of an authoritarian backed up by the police and the military to solve our deep seated social problems that spawn terrorism is fallacy. The ghost of [Ferdinand] Marcos’ Martial Law lives within the words of our Constitution and rightly so. That ghost must be exorcised with passion by this Court whenever its resemblance reappears.

Never again should this court allow itself to step aside when the powerful invoke vague powers that feed on fear but could potentially undermine our most cherished rights. Never again should we fall victim to a false narrative that a vague declaration of martial law is good for us no matter the circumstances. We should have the courage to never again clothe authoritarianism in any disguise with the mantle of constitutionality.

The extremist views of religious fanatics will never take hold in our communities for so long as they enjoy the fundamental rights guaranteed by our constitution. There will be no radicals for so long as our government is open and tolerant of the activism of others who demand a more egalitarian, tolerant and socially just society.

We all need to fight the long war against terrorism. This needs patience, community participation, precision and a sophisticated strategy that respects rights while at the same time using force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism.

We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent–even resist–when offered the farce that Martial Law is necessary because it is only an exclamation point.

Marvic M.V.F. Leonen, J., dissenting in Lagman v. Medialdea, the Mindanao Martial Law case, Supreme Court of the Philippines

Special Jurisdiction for Peace -- unresolved questions

Human Rights Watch has raised serious questions about the "Special Jurisdiction for Peace" provided for in the Colombian peace accord. Excerpt from the NGO's statement:

The [Constitutional C]ourt should limit a broad provision allowing FARC guerrillas to seek or hold public office even while serving sentences for grave abuses, Human Rights Watch said. Such a change should ensure that sanctions against them are carried out fully and unconditionally. The Constitutional Court should also fix the amendment’s narrow definition of “command responsibility” –the basis on which military commanders can be held criminally responsible for crimes committed by their subordinates. The definition in the amendment is inconsistent with international law, Human Rights Watch said, and could allow senior officers of the Colombian Armed Forces to escape justice.
*   *   * 

Definitions of “command responsibility” proposed during the peace process that will eventually apply both to military officers and guerrilla commanders, have drawn concerns repeatedly from Colombian rights groups and various international organizations, including the International Criminal Court (ICC) prosecutor. Human Rights Watch has criticized definitions proposed as applicable to both parties to the accord, including one applicable to FARC guerrillas that has yet to become law. In January 2017 Human Rights Watch wrote to legislators criticizing the definition proposed then for senior officers of the Armed Forces—identical to the one passed in Constitutional Amendment 1 of 2017— as distorting international law in a way that could severely weaken accountability. 
Between 2002 and 2008, army brigades across Colombia killed more than 3,000 civilians, in what are known as “false positive” cases. Under pressure from superiors to show “positive” results and boost body counts in the war against guerrillas, soldiers abducted victims or lured them to remote locations under false pretenses. The soldiers killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. 
While more than 1000 soldiers have been convicted for these crimes, few commanders who led brigades responsible for the killings and later rose through the military ranks have been held accountable. It is still unclear whether the Special Jurisdiction for Peace –which will hear cases of crimes related to the armed conflict– will handle these cases.
“If the Special Jurisdiction for Peace handles false positive killings and applies the legislature’s distorted definition of command responsibility, senior officers responsible for these appalling murders may never face justice,” [HRW's José Miguel] Vivanco said.

Congress at work

Sen. Joni Ernst (R.-IA) has issued a statement trumpeting her many contributions to the current proposed National Defense Authorization Act for FY2018, a couple of which concern military justice. Among the many others on her list of bullet points:
25. A provision recognizing the risk of Foot and Mouth Disease, or other foreign animal disease, to our food production economy and our national security. It directs the Department of Defense and Department of Agriculture to analyze our ability to response to such an attack.
Good to know. It would be interesting to know where this proposal originated.

Will Omar Khadr get to keep it?

The Globe & Mail reports here on efforts by the widow of a U.S. soldier killed by Omar Khadr and another soldier who who was blinded to levy against any award by Canada. Excerpt:
Mr. Khadr’s long-time lawyer, Edmonton-based Dennis Edney, said he was not aware of the court application. (According to the court file, it had not yet been served on Mr. Khadr or his lawyers.) But Mr. Edney said any attempt to redirect compensation owing to Mr. Khadr could result in a major legal battle. 
“I don’t understand what basis in international law that they have in being able to sue Omar Khadr for the death of Christopher Speer on a battlefield, when there is absolutely no evidence that he did [what is alleged] other than Omar Khadr’s own admitting to it while being tortured in a place that is renowned for torture,” said Mr. Edney, who would not otherwise comment on the reports of a settlement for his client. “... They are going to have quite a fight.” 
University of Western Ontario law professor Stephen Pitel, an expert on questions of jurisdiction and the recognition of foreign judgments by Canadian courts, said that although Canada’s rules are “pretty liberal,” getting this Utah ruling recognized here could be an uphill battle. 
Prof. Pitel said the plaintiffs will need to show how the Utah court had proper jurisdiction over both a battlefield incident in far-off Afghanistan and a defendant who did not show up to court because he was in prison. Mr. Khadr’s lawyers could also fight the recognition by arguing that it offends the principle of “natural justice” or Canadian “public policy.” 
But Prof. Pitel said Ms. Speer and Mr. [Layne] Morris may be helped by a recent Ontario Court of Appeal ruling, released just last week, if it stands. In a sprawling case known as Tracy v. Iran (Information and Security) [2017 ONCA 549 (June 30, 2017)], Ontario’s highest court upheld a lower court decision and sided with Americans seeking to enforce U.S. judgments against Iran and demanding compensation for victims of Iranian-sponsored terrorism. 
“There are a lot of legal issues here, and it is going to take a while to unravel them,” Prof. Pitel said.
Of course, the parties could also reach a settlement . . .

It is unclear whether Canada has already paid Mr. Khadr. If so, efforts to execute the U.S. judgment against him could be further complicated.

Thursday, July 6, 2017

Recruit training -- "a culture of brutality"

The New York Times Magazine has posted this disturbing article by Janet Reitman, titled "How the Death of a Muslim Recruit Revealed a Culture of Brutality in the Marines." Excerpt:
On Aug. 7, nearly a year and a half to the day that Raheel Siddiqui arrived on Parris Island, Gunnery Sgt. Joseph Felix will stand trial, a proceeding expected to last at least two weeks. The charges against him are technically violations of military discipline; he has not faced broader criminal charges like assault. The Siddiqui family thinks the charges are insufficient. ‘‘We were advised that an assault charge was not brought because the [other charges] carried a harsher penalty,’’ says Shiraz Khan, the family’s lawyer. ‘‘Well, the elements of assault are much different, and so are the implications. The systemic hazing, abuse and maltreatment suffered by Raheel Siddiqui while at Parris Island was not the result of a single incident by one individual. We aren’t blind to what Raheel’s body and autopsy say.’’

Detention of Venezuelan military personnel by Maduro regime

Reuters claims today to have seen Venezuelan military documents that show that 123 members of the Venezuelan armed forces have been detained since anti-government unrest began in April on charges ranging from treason and rebellion to theft and desertion.

Reportedly, the list of detainees, which includes officers as well as servicemen from the lower ranks of the army, navy, air force and National Guard, provided the clearest picture to date of dissatisfaction and dissent within Venezuela's roughly 150,000-strong military. The records, detailing prisoners held in three Venezuelan jails, showed that since April nearly 30 members of the military have been detained for deserting or abandoning their post and almost 40 for rebellion, treason, or insubordination. Since the opposition started its protests more than three months ago, a handful of security officials have gone public with their discontent. Last week, rogue policeman and action movie star Oscar Perez commandeered a helicopter and attacked government buildings, claiming that a faction within the armed forces was opposed to [Nicolás] Maduro's government.

"Proud boys" and free speech

An interesting issue has arisen in Canada, as chronicled here by CBC News. When a group of First Nations activists held a protest at a public site in Halifax, NS, on Canada Day, it was disrupted by off-duty military personnel who call themselves "the Proud Boys." Excerpt:
The members of the Canadian Armed Forces who disrupted a protest organized by Indigenous activists in Halifax on Canada Day will be removed from training and duties as the military investigates and reviews the circumstances, says the country's top general. 
"We are the nation's protectors, and any member of the Canadian Armed Forces who is not prepared to be the defender we need them to be will face severe consequences, including release from the forces," Gen. Jonathan Vance, chief of defence staff, said in a statement Tuesday night. 
On Saturday, a gathering of Indigenous people and activists held a protest at the Edward Cornwallis statue in downtown Halifax. The protest was disrupted by five off-duty military members wearing black polo shirts who referred to themselves as Proud Boys. 
Cornwallis, a governor of Nova Scotia, was a military officer credited by the British for founding Halifax in 1749. Later that year, he issued a bounty on the scalps of Mi'kmaq people. There's been considerable debate over the use of Cornwallis's name on public parks, buildings and street signs. 
"What happened in Halifax over the weekend is deplorable, and Canadians should rest assured my senior leadership is seized of the matter," said Vance. 
"The members involved will be removed from training and duties while we conduct an investigation and review the circumstances. Their future in the military is certainly in doubt."
Free speech issues are at stake, much as they are when serving personnel engage in hate speech of one kind of another, as has happened in other countries, sometime through the misuse of social media. What is the responsibility of military commanders in these circumstances? Does it matter that the personnel were out of uniform? If no civilian law was violated, should these people be subjected to military discipline?

Wednesday, July 5, 2017

Mindanao martial law decision available

The opinions in the Mindanao martial law case, Lagman v. Medialdea, G.R. 231659 (Phil. July 4, 2017), are now available on the website of the Supreme Court of the Philippines.

New law gives military prosecutor power to bring charges; can you guess where? (Hint: not the US)

The National Assembly of Burkina Faso has approved a bill that would, among other things, shift the power to initiate military court prosecutions from the Minister of Defense to the military prosecutor, according to this Le Pays report (en français). 

United States v. Khadr -- Canada to pay, but who will collect?

Canada has agreed to pay Omar Khadr, who was convicted by a U.S. military commission, some $10,000,000 and to issue an apology, based on Canada's involvement in his interrogation at Guantanamo Bay. Meanwhile, the widow of a U.S. soldier he killed and another soldier he wounded are initiating proceedings to collect the state court money judgment they obtained against Khadr in the U.S. Details here. Excerpt:
Tabitha Speer and Layne Morris allege Mr. Khadr was responsible for the death of Sergeant Christopher Speer and Mr. Morris’s injuries in Afghanistan. Two sources say they are expected to ask the Ontario Superior Court as early as Wednesday to uphold a 2015 Utah civil court judgment ordering Mr. Khadr to pay them $134-million (U.S.) for his actions in Afghanistan. 
“They are trying to get an emergency injunction in a Canadian court to have their award in the United States enforced in Canada,” one source said. “Their desire is to have U.S. courts enforced in Canada, which would mean that any money that goes to Mr. Khadr would go to them.”

Threat to judicial independence in Suriname

Pres. Desi Bouterse
Surinamese President Desi Bouterse, on trial in the so-called "December Murders" case, has threatened the military judge, as reported here by the Daily Herald. Excerpt:
Guno Castelen, the chairman of Suriname’s labour party SPA, is worried about “subtle threats” President Desi Bouterse has launched at the judiciary. Discussing the twenty-year prison demand the Military Prosecutor called for last week Wednesday, Bouterse criticised the judiciary and said that his Government would soon come with “necessary measures … within the confines of constitutional law.” 
He did not specify what he meant exactly, but it was enough reason for Castelen to be worried. The opposition Member of Parliament (MP) said Bouterse is obviously trying to intimidate the judge in the case. “He singled out the judge and that is cause for concern,” the SPA leader said. 
The prison demand for Bouterse was lodged by Military Prosecutor Roy Elgin at the height of the tediously moving December Murders trial; Bouterse and 24 other defendants are on trial for the killings on December 8, 1982, of 15 opponents of Bouterse’s then military rule. Elgin also demanded 20 years for another former soldier who is a defendant in the case. For three other defendants he has demanded that the cases against them be dismissed. The trial is ongoing. 
Bouterse, who is serving his second term as the democratically chosen President, responded with scorn to the prison demand. “If God put me here as President, who is a judge to send me away?” he asked on Friday at a meeting with prominent members of his National Democratic Party (NDP). 
Castelen said it was remarkable that the President would take aim at the judge, while at this stage it’s the Military Prosecutor who called for a prison sentence and the judge is not even in play yet. “The President knows the difference between a prosecutor and a judge full well, as much as he knows the difference between a demand and a sentence. He knows that we are past the phase of prosecution and that it is now up to the judge to decide whether and for how long he will go to prison. The fact that he mentions the judge hints that he wants to send a signal. And that signal is meant for the judge,” the SPA leader said.
The trial began in 2007. 

Tuesday, July 4, 2017

Mindanao martial law upheld

By divided vote, the Supreme Court of the Philippines has upheld the imposition of martial law on Mindanao. According to this notice tweeted by the court's public information office, the opinions will be released tomorrow and will presumably be posted on the court's website.

Query: will military courts come next?

Monday, July 3, 2017

Liberian UCMJ to be updated

The speaker of Liberia's House of Representatives is taking steps to move ahead on four long-delayed bills. One of them concerns military justice:
The Uniform Code of Military Justice (UCMJ) aims to reform the military as it rebuilds its forces with an emphasis on human rights and professionalization, including ensuring continued progress and that members act according to the rule of law. 
The law will also discuss pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, among others.
This Daily Observer article is sparse on details. The second quoted paragraph seems to track Article 36(a), UCMJ.

Blog contributor Susan Finder in the news

Global Military Justice Reform contributor and big-league China scholar Susan Finder is the subject of this interview with The News Lens. Excerpt:
TNL: You have a fantastic blog [Supreme People's Court Monitor] and you write prolifically in this area. How transparent is the system and what are the resources and sources you use to monitor the courts? 
Finder: The system is not very transparent. But it is an enormous improvement from 20-plus years ago when I first started looking into the Supreme People’s Court. You now have this online database of court judgments. There are studies that show some provinces are better than others, some judges don’t want to upload cases to the database, but it is a big step forward, despite the various limitations there are. 
As far as my own sources of information; I use WeChat, that is one of my big sources, because I can get multiple voices. The Supreme People’s Courts and other courts have their own WeChat outlets, so I can get the latest official documents. There are also many other voices.

Sunday, July 2, 2017

Filing appeals by the Ministry of Defence against favourable disability pension verdicts: a dark chapter comes to a close

Mindless filing of en masse appeals by India’s Ministry of Defence against verdicts of Courts and Tribunals granting disability benefits to disabled soldiers was a major sore point with military veterans.

Thankfully, though reluctantly, the dark chapter seems to have come to an end with a decision having been taken not to pursue such appeals.

A detailed post on the recommendations on this issue (amongst many others) by a Committee of Experts constituted to reduce litigation, and other aspects of this latest development, is available on my blog.

The story has also been covered by The Times of India.

al Qosi case back in the news

Carol Rosenberg
Considering how few cases the military commissions at Guantanamo have tried, they continue to generate interesting issues. The latest, as reported here by the Miami Herald's Carol ("dean of the Guantanamo press corps") Rosenberg, concerns whether automatic appellate review of the case of Ibrahim al Qosi, who has been released from custody, can proceed if his post-release conduct shows him to be an alien unprivileged enemy belligerent. A factfinding hearing has been ordered.

A national myth

Raza Rumi
Raza Rumi, editor of Daily Times, writes here of five Pakistani myths that need to be "buried for good." Excerpt:
Since the ‘historic’ lawyers’ and judges’ movement, we have been hearing that doctrine of necessity has been buried. Proud pronouncements from the Supreme Court of Pakistan often repeated by analysts and politicians do their rounds. While the courts certainly are far freer than they were before, the doctrine of necessity is very much alive and kicking. Take the example of military courts. The apex court ratified military courts established after the 2014 terror attack in Peshawar that killed children and teachers in an army school. The court upheld them and many outspoken lawyers and ostensibly independent analysts also supported these courts. In March of this year, the National Assembly passed 28th Constitutional Amendment Bill that revived the military courts after the initial two-year period was over. It requires no rocket science to note that that such courts are violative of citizens’ rights to fair trial, legal counsel, etc. as guaranteed by the Constitution. There are countless instances where the courts have passed verdicts that fall into the ambit of doctrine of necessity -initially used in 1950s to uphold a constitutional subversion - without naming it. Sixty years later, it remains pretty much a convenient ploy to justify the power arrangements in the country.


Global Military Justice Reform uses Google's built-in (i.e., free) "Blogger" analytics, from which we are able to tell where visitors are located. Hits over the last day from Russia outnumber hits from the United States by better than 3:1, despite the paucity of posts about Russian military justice reform. This has happened from time to time in the past as well.

Makes you wonder.

Saturday, July 1, 2017

Ex-DPP calls for investigation of SAS

Baron Macdonald of River Glaven, QC
The Sunday Times (London) carries this report of a suggestion by a former Director of Public Prosecutions that an SAS unit be investigated for possible summary executions. Excerpt:
Lord [Kenneth] Macdonald, the former director of public prosecutions, called for an independent judicial inquiry to examine whether the investigation into allegations of “serial murders” by the SAS had been deliberately impeded by the Ministry of Defence (MoD) and the military. 
In a statement to The Sunday Times this weekend, Macdonald said: “Soldiers in theatre face extreme stress and danger on our behalf and this is not to be forgotten. But allegations of summary military executions and the falsification of evidence to cover up serial murder are matters that any civilised society is bound to investigate robustly. 
“It would be a major scandal and without precedent if the MoD has intervened deliberately to subvert this process. In doing so, they would foolishly risk the reputation of the British Army. 
“Only a judicial inquiry is now likely to be able to determine whether this investigation had really run its course, or whether the truth is that it was deliberately stymied by a combination of the MoD and military establishment.”

Happy Canada Day

Best Wishes for the Fourth of July Holiday Weekend