Tuesday, January 31, 2017

Another inconclusive meeting in Pakistan

The News International reports here on an inconclusive meeting of legislators concerning possible revival of the now-defunct military courts. The so-called briefing sounds like a complete failure.
During the meeting, Law Minister Zahid Hamid gave replies to questions of the opposition on the performance of military courts. However, the opposition expressed no satisfaction on the briefing and even raised question of absence of the interior minister and security officials from the meeting.
One wonders what Mr Hamid was asked and what his responses were. Were the basic questions this blog suggested addressed in any way?

Government states its case in Uganda Constitutional Court

The government has responded to the Constitutional Court appeal by a Ugandan parliamentarian who has objected to the exercise of military jurisdiction over him. Excerpt:
[MP Michael] Kabaziguruka had petitioned the Constitutional court, seeking a declaration that the GCM and other military courts were unconstitutionally established. 
He contends that these courts are merely tribunals set up for purposes of disciplining errant military officials and not courts of law within the meaning of the Constitution. 
Kabaziguruka therefore wants the powers of the military court be limited to only disciplining soldiers rather than charging them (soldiers) and civilians with offences. He also wants court to award him cost of the petition. 
He accuses the 6th Parliament of over stepping its powers by creating section 197 of the UPDF Act that establishes the GCM other than a mere tribunal to instil discipline among UPDF soldiers.
The Attorney General's chambers position is as follows:
"As a civilian, Kabaziguruka is alleged to have been aiding and abetting persons subject to military law to commit service offences which bring him under the realm of the General Court Martial" [Denis] Bireije stated. 
He contends that the GCM before which Kabaziguruka has been charged is capable of fairly and accurately pronouncing itself on the charges brought against Kabaziguruka without prejudice to him. 
According to Bireije, Kabaziguruka has not shown or demonstrated to court that there is eminent danger which he intends to stop that cannot be compensated by way of damages.  
He also argues that all the issues raised in Kabaziguruka's application are of enforcement of human rights which can be handled by any competent court without resort to the Constitutional Court. Bireije added that Kabaziguruka's allegations are unfounded and speculative.

Bouterse case to resume

Judge Cynthia Valstein-Montnor
The military murder trial of Pres. Desi Bouterse of Suriname and 25 co-accuseds will resume on Feb. 9, according to this report. Excerpt:
Bouterse was elected president in a parliamentary vote in 2010 and re-elected in 2015. He pushed an amnesty law through parliament that would have ended his trial but that was ruled unconstitutional. 
In June, he directed the country's attorney general to immediately halt the legal proceedings against him, invoking an article of the constitution that allows the president to issue such an order in the interests of national security. 
But the presiding judge in the military court, Cynthia Valstein-Montnor, ruled the prosecution does not have the authority to withdraw a complaint after a trial has started.

Monday, January 30, 2017

Update on Admiral Norman's case

In an article published in the National Post, "Questions remain about top military officer's removal as replacement 'double-hats' Navy and Defence jobs" the media laments the fact that Canadians are 'still in the dark about [Vice-Admiral Mark] Norman removal [as the Vice-Chief of the Defence Staff.]. At present, the Canadian Forces won't say whether Norman is coming back to the VCDS job and who long his replacement, the Commander of the Royal Canadian Navy will be acting and in the process handle the duties of each position.
"The level of secrecy around Norman's departure also does not sit well with some of his supporters, who point out the lack of information has allowed theories about why he was removed to spiral out of control."
In a related article also published in the Canadian parliamentary precinct weekly, Hill Times, Michel Drapeau and his associate Joshua Juneau posit that should Vice Admiral Norman’s removal be permanent, a replacement VCDS will need to be found soon. They deplore the fact, however, that in Canada, General rank and Flag officers are all appointed on the sole and unique selection and nomination of the Chief of Defence Staff [CDS].  It is also customary for the CDS to nominate for the approval to the Minister of National Defence a single nominee for the promotion and/or appointment or re-appointment of a General or Flag officer. This leaves the Minister with a 'fait accompli' and it provides no parliamentary control or oversight. 

The nomination and appointment process is therefore neither open nor transparent.  

This sort of arbitrary appointment process stands in stark contrast with the procedure used in the USA where Congress has had a long-standing interest in the military officer corps and has the power to confirm or deny the nomination of an individual to fill a General or Flag officer position.  It also runs counter to a host of recent changes in Canada in regards to the selection procedure for appointments of such office holders as Senators, Judges and some 1,500 Government-in- Council appointments.  

The authors conclude that the time has come for Parliament to oversee the promotion, appointment and re-appoinment of Generals and Flag officers, commencing with the next VCDS should that come in the weeks ahead. 

Civilians being tried in Cameroon military court

For a list of the anglophone civilian activists being tried in Cameroon's military court, consult this article. Human rights norms strongly disfavor the trial of civilians by military tribunals.

The trouble with Lebanon

From this scathing Middle East Eye essay by Belen Fernandez about what's wrong with Lebanese justice (with a focus on its misuse of military courts):
So why has a military court been selected as the most suitable venue for anti-garbage protesters? The short answer is that, as HRW outlines, Lebanon’s military court system “has broad jurisdiction over civilians, including in cases involving… any conflict between civilians and military or security personnel or the civilian employees of the Ministry of Defence, army, security services, or military courts.” 
Of the many problems with the arrangement in this case, however, perhaps the worst is that the “conflict” between protesters and Lebanese security personnel involved the latter firing water cannons and other projectiles at the former, as I myself witnessed at the October 2015 protest in downtown Beirut which produced the 14 defendants in question. 
Torture is par for the course in Lebanese detention centres, although the state prefers to criminalise those who speak out about it rather than those who commit it. 
The deeper reason, meanwhile, for the military court solution is implied in HRW’s note that “[a]ccording to defendants, lawyers and Lebanese human rights organisations, the military courts have used this broad jurisdiction to intimidate or retaliate against individuals for political reasons and to stamp out dissent”.

Sunday, January 29, 2017

A busy day in Egyptian military court

This report just in from Cairo:
An Egyptian military court Sunday sentenced 227 dissidents to jail for allegedly promoting violence following the August 2013 violent crackdown of Egyptian security forces, according to a local non-governmental organization. 
The Aug. 14 Rabia and al-Nahda crackdowns came in the wake of the military coup that July. 
The Western Cairo military court sentenced 133 of the defendants, 82 of whom were tried in absentia, to 25 years in prison, and 94 others (72 of whom were tried in absentia) to 15 years each, Ezzat Ghanem, the chief of Egyptian Coordination for Rights and Freedoms, said in a statement. 
29 of the opponents were released after the court ruling while one case was dismissed after the suspect died, he added.

Saturday, January 28, 2017

2016 court-martial data from Dublin

The Irish Defence Forces have issued a summary of courts-martial conducted in 2016. The Irish Times has a report here. One eye-opener:
An Irish Army soldier who went missing for almost a year and a half has been fined 10 weeks’ pay and issued a severe reprimand.
However, the private was not found guilty of desertion for being absent without leave for 509 days.
Does any reader have the back story on this case? (No anonymous comments, please.) 

Time for Canada to retrace its steps on sexual offenses?

Tim Dunne, a Global Military Justice Reform contributor, has written this op-ed for The Herald. In a nutshell, he argues -- among other things -- that it was a mistake for Canada to subject sexual assaults to prosecution in courts-martial rather than solely in the Superior Court. Excerpt:
The clock should be reset to 1998, before sexual assault was listed in section 70 of the National Defence Act as one of the offenses that could now be tried by a military tribunal. 
The CVBR [Canadian Victim Bill of Rights] section 18(3) should also be repealed, so criminal offenses are no longer prosecuted before military tribunals, sparing victims the ordeal of being excluded from the act’s provisions. 
This gives some urgency to the need to conduct a comprehensive and immediate modernization of the National Defence Act. 
Until the NDA is reformed, the interests of victims will continue to be ignored by the military justice system, leaving the central issue unresolved.

Friday, January 27, 2017

Article 88 and the Speech or Debate Clause

Rep. Ted W. Lieu (D.-CA)
Ted W. Lieu is a Democratic Member of Congress from Los Angeles. He is also an officer in the U.S. Air Force Reserve. In a recent press release he said the following:
*** In addition to losing the popular vote, [Donald J.] Trump — as of January 20, 2017 — is in violation of the Emoluments Clause set forth in Article I, Section 9 of the U.S. Constitution due to massive conflicts of interests and his refusal to put his global business holdings in blind trusts. Trump also benefitted from Vladimir Putin ordering a multifaceted and brazen Russian influence and cyber hacking campaign with the goals of undermining faith in the U.S. democratic process, denigrating Secretary [Hillary] Clinton’s electability, and helping Trump’s election chances. Trump and his press secretary also routinely make stuff up.
This article suggests that Rep. Lieu has violated Article 88 of the Uniform Code of Military Justice, which criminalizes the use of contemptuous words about, among other officials, the President. Truth is not a defense, according to the Manual for Courts-Martial.

Does the press release violate Article 88? If so, does the Speech or Debate Clause extend to a press release posted on a congressional website? If it does not extend to a press release, does the Clause trump Article 88? Comments welcome. (Comments Policy reminder: you must use your own name when commenting. Anonymous comments will not be posted.)

Plus ça change in Thailand

Once again, a Thai military court has convicted a person accused of lése majesté. The sentence is 11 years and 4 months' imprisonment. Details here (in Spanish).

Thursday, January 26, 2017

Lack of courtesy lands colonel in prison

Colonel Edgar Dure of the Paraguayan Air Force has spent four months in detention in the military garrison known as Vinas Cue, without having been formally charged or sentenced for a crime, for lack of courtesy to General Braulio Piris, the Commander of the Paraguayan Armed Forces, his military superior, at a social event (he failed to extend his hand to the General at the social event). Pursuant to Paraguayan military law an individual has to be indicted within 20 days and six times that amount of time has elapsed while Dure is held in detention with convicted prisoners.

The facts, according to his defense lawyer, indicate that his right to due process and a presumption of innocence have been violated.

According to Dure's mother, his family has been ostracized and is without financial resources. His wife recently departed for Spain with two of their three children, which  has affected Dure emotionally.  His mother noted that her son was friends with General Piris but that the commander had denied him a commission to Taiwan and since then there was enmity.

Dure complained in a letter to the President.  It is assumed that he will be kept in detention for a year and then given a dishonorable discharge.  General Jose Mieres, the head of the Paraguayan Military Tribunal, says that Dure is in detention for offenses committed, not for disobedience.  He was told to present himself to the Commander by the General's guard, he ignored the order, knocking down the guard and leaving the premises without permission. General Mieres stated that there are sanctions for insubordination and lack of discipline and that these were the issues in this case, as well as the offense against the General's guard.  For a misdemeanor you can get 90 days in detention, for a crime, up to a year, he explained.

Pushback to military courts in Lebanon

We have Middle East Eye to thank for this report on the misuse of military court to suppress civilian dissent in Lebanon -- and growing opposition to the practice. Excerpt:
On 30 January, 14 civilians will face three years in prison in a military court trial for their involvement in #YouStink protests against Lebanon's rubbish crisis. 
And the military trial for an ostensibly civilian protest is not an exception. Lebanese law allows military courts, under the control of the Ministry of Defence, to try civilians simply because they have clashed with security forces. As a result, protesters who have been on the receiving end of riot police, firing rubber bullets and teargas, are routinely arrested under military justice rules.
How long will it take Lebanon to kick this habit? Human Rights Watch is on the case, with a press release and detailed report. Here are HRW's recommendations:

Tuesday, January 24, 2017

Military justice in the Austro-Hungarian Empire

Franz Josef I
Okay, it's been a while (99 years), but it's still interesting.

Recently, the Editor wrote elsewhere about Joseph Roth's The Radetsky March, a wonderful novel set in the last years of the Austro-Hungarian Empire. What better way to follow it up than with István Deák's equally wonderful Beyond Nationalism: A Social and Political History of the Habsburg Officer Corps 1848-1918? Interestingly, the book includes a good deal of information about military justice, pointing out, for example, that very few executions were carried out (in some years there were none) and that homosexual acts were punished but not very severely. Minor offenses by officers were typically dealt with by courts of honor rather than courts-martial. Dueling presented some nice questions given the focus on officers' honor: opponents of dueling were themselves viewed with suspicion. "[I]t appears that the army went out of its way to assure its officers that duelling was more advantageous than not duelling." All in all, the image Prof. Deák presents of the officer corps tallies pretty closely with Roth's.

A thin reed in Pakistan

This report from The Express Tribune in Pakistan suggests that the opposition parties will merely be a speed bump for government efforts to revive the military courts that were sunsetted on Jan. 7, 2017. These parties seem only to want the government to shoulder the blame. See what you think.

Monday, January 23, 2017

Gdeim Izik civilian retrial begins

The court of appeal in Rabat today begins the retrial of the Gdeim Izik case, which was previously tried in a military court. Details here. The case arises from security force fatalities in connection with the destruction of a Sahrawi protest encampment. The retrial is required because Moroccan law has been changed to bar civilians from being tried in military courts.

Sunday, January 22, 2017

The Changing Rules of War

Daedalus, the Journal of the American Academy of Arts and Sciences, has devoted its Winter 2017 issue to "The Changing Rules of War," under the guest editorship of Prof. Scott D. Sagan. Contributors include Prof. John Fabian Witt, Brig. Gen. Mark S. Martins, and Prof. Antonia Chayes, among others. Especially interesting are Strategy & Entailments: The Role of Law in the U.S. Armed Forces by Laura Ford Savarese and Prof. Witt, and Prof. Sagan's The Face of Battle without the Rules of War: Lessons from Red Horse & the Battle of the Little Bighorn.

A Kashmiri insight on military courts

Kashmir Images has this hard-hitting essay on Pakistan's military courts (and their threatened revival) by Mohammad Shehzad. Excerpt:
The most lamentable aspect of this episode was, the military courts were supported by all the opposition parties including the one which waged a long struggle against the military rule. Yes, the Pakistan People’s Party whose founder Z A Bhutto preferred to walk to the gallows instead of bowing his head before the military dictator Gen Ziaul Haq. The PPP senator Razza Rabbani cried after voting in the Senate (the upper house) in favor of the military courts. ‘I have been in the Senate for more than 12 years, but have never been as ashamed as I am today and I cast my vote against my conscience.’ (He could have resigned instead of going against a so-called conscience!) Isn’t shameful that there was not a single vote against the military courts? 
The military courts were set for two years in January 2015. They sentenced 161 people to death, 12 of them have been executed and 169 to life imprisonment. According to advocate lieutenant colonel (retired) Inamur Rehman, the military courts never provided the copies of the proceedings of trials. He cited the case of Nadeem Ahmad Shah advocate. Shah was framed on false charges. His counsel gave the prosecution a tough time in cross examination. As a result, Shah was acquitted but after this acquittal, the military court did not allow any accused to have a defense counsel.
If the military courts were set up to frighten the terrorists then they were an utter failure. On January 20, 2016, the ‘strategic assets’ attacked Bacha Khan University in Charsadda (Khyber Pakhtoonkhua) killing 22 people and wounding another 20. On August 8, 2016, seventy people were killed and 100 wounded in a suicide attack in Quetta at emergency war of Civil Hospital Quetta. On October 24, 2016 Quetta was again a target of suicide bombers. This time, they attacked the Quetta Police Academy killing 61 cadets. Were military courts’ summary trials able to stop the terror?

Welcome to our newest contributor and jurisdiction

Global Military Justice Reform is delighted to announce that Wing Commander (Ret) Umesh C. Jha has agreed to be a contributor. He joins Major (Ret) Navdeep Singh on our Indian team. Welcome aboard!

Another landmark is the appearance of Madagascar on the roster of jurisdictions where the blog is read. That makes 174.

Slow justice but a positive outcome

A cashiered Indian Army junior officer has been rehabilitated by the Lucknow Bench of the Armed Forces Tribunal 26 years after he was tried by a summary general court-martial. He was charged after having implicated senior officers in the loss of gold discovered in a raid. In addition to reinstating the officer and ordering him promoted to Lieutenant Colonel, the AFT also heavily fined the government. Here's the Hindustan Times account. "Justice [D.P.] Singh and Air Marshal [Anil] Chopra directed the chief of the army staff to look into the matter and ensure that appropriate action is taken against those who were instrumental in persecuting [S.S.] Chauhan and complete the inquiry in four months." The petitioner sued in the Allahabad High Court in 1993, and the case was transferred to the AFT in 2012.

The AFT's 296-page January 19, 2017 decision in Chauhan v. Union of India, T.A. No. 31 of 2012, can be found here. It describes the SGCM as a farce. Among many other noteworthy comments, the decision observes (at ¶ 336):
. . . In the present case in spite of all odds and events and efforts to suppress alleged recovery of 147 gold biscuits, we appreciate the zeal of Col K.S. Dalal, the then Commanding Officer 4 Rajputana Rifles and Capt Manveet Singh, Judge Advocate who seem to be torch bearers of leadership, quality and firmness to do their duty fairly and honestly. They are the real heroes of Indian Army because of whom reputation of Indian Army is appreciated all over the world, entitled for commendation.
Captain Singh, a qualified officer of the JAG Branch, was improperly released as 2d Lieut. Chauhan's defense counsel, and replaced by a non-lawyer artillery officer.

H/T to Wing Cdr (Ret) U C Jha for the links.

Military judge kidnapped in Afghanistan

Asiludin, a military judge, has been kidnapped, along with his bodyguard, near Kunduz, Afghanistan. Details here. No indication the crime is related to any particular case.

Transparency and Pakistan's military courts

Maria Kari has written this thoughtful column for The Express Tribune, focusing on one of the cases tried by military court under Pakistan's 21st Amendment. Excerpt:
The military court’s speedily concluded; heavily veiled decision was conducted with almost no transparency or accountability. But that is not the part that frightens the most because the military court’s covert and obscure execution of justice in the case of Saad Aziz will do nothing to stop the future Saad Aziz’s from taking the lives of future Sabeen Mahmud’s. 
It is no secret that improprieties are rampant in Pakistan’s civilian trials. Today, despite reaching the end of its mandated two-year term, the government has failed to provide any evidence suggesting that major steps were taken to fix the inadequacies of the civilian criminal justice system. 
But this does not mean that special military courts are the cure to the problem of civilian courts. This is because military justice, when compared to the civilian criminal justice system, is simply different. 
The hallmark of a judiciary is its independence. In a country like Pakistan where the army boasts remarkable amounts of power, a military-run judicial system is nothing short of a puppet show – one in which select political parties and military folk are the puppeteers.

Friday, January 20, 2017

April Fool's Day comes early in North Dakota

Thanks to the Editor's old friend UCLA Law Prof. Eugene Volokh, we learn of an amazingly stupid proposal to put active and retired military personnel (appointed by the state's adjutant general) in control of judicial discipline in North Dakota. Yes, you read that right. Here's the article.

New U.S. administration takes office at noon

Donald J. Trump succeeds Barack Obama as President of the United States at noon today. Will the change have any impact on military justice and its reform? Here is a first cut at things to look for:
  • Who will be general counsel of the Department of Defense? The GC's power over military justice is limited but he or she could still be influential.
  • The Manual for Courts-Martial will have to be amended to accommodate the Military Justice Act of 2016, including such critical matters as the provision of uniform tours of duty (dare we call them terms of office?) for military judges. Will the next round of changes -- or the process by which they are generated -- be different from what they would otherwise have been given the change of administration?
  • What will be the new administration's position with respect to sexual assault in the armed forces? Will it take further action or will it roll things back?
  • Who will be the service general counsels? They can be influential in overseeing the boards for correction of military and naval records.
  • Will the new administration undertake any military justice initiatives that require legislation, such as finally fixing the indefensible 30+ year old denial of access to the Supreme Court in the numerous court-martial cases in which the U.S. Court of Appeals for the Armed Forces (CAAF) denies discretionary review?
  • Who will President Trump appoint to succeed CAAF Chief Judge Charles E. "Chip" Erdmann, whose term expires on July 31, 2017?
  • Who will be the Solicitor General, an official who plays a major role in military cases before the Supreme Court? Will the new SG have any background in military justice?
  • Will the new administration shift the current military commission cases to the Article III civilian courts, or will it stay the current course?
  • Will the new administration decrease or increase the detainee population at Guantanamo Bay Naval Station?
  • Will there be any effect on military capital cases? No death sentence can be carried out without the affirmative approval of the President.
  • What will be President Trump's clemency policy for military cases?
Can you think of other military justice issues that might be affected by the change of administration? Comments are welcome (real names only, of course).

Thursday, January 19, 2017

Pakistan military wants 1-year extension of military courts

Here is an excerpt from the latest report out of Pakistan:
According to Lieutenant General Talat Masood, a senior defence analyst, the military wants an extension in the special courts for valid reasons because the government failed to bring judicial reforms in the last two years. 
According to him, a one-year extension should be given to the military courts and at the same time the government should also make legislation to strengthen the judicial system – providing protection to the prosecution and witnesses. 
He said “military courts were established because of the loopholes in our judicial system that is unable to punish hardcore terrorists,” adding the government needed to undertake measures to strengthen the judicial system. “Once a strong judicial system with protection to prosecution and witnesses is in place, reliance on military courts would come to a natural end,” he added.

Why are these cases in a military court?

National Security Court
Al Jazeera reports that a number of civilians and military retirees have been arrested with a view to trial before a military for, among other things, insulting the king on social media. Excerpt:
A Jordanian military court has charged eight activists with "insulting the King" and "incitement to spread chaos to undermine the political regime of Jordan using social media", lawyers said. 
The General Intelligence Directorate (GID), the "Mukhabarat" in Arabic, last week arrested civilian opposition activists, including retired army and intelligence generals, a former MP, a former high-ranking government official and several teachers.
Human rights norms strongly disfavor the trial of civilians and military retirees in military courts. 

Backgrounder on Moroccan retrial

Aujourd'hui Le Maroc has this curtain-raiser en français on the upcoming retrial in the Gdeim Izik case. In 2010, 11 security personnel were killed at a protest encampment. The Sahrawi accuseds were tried in a military court even though they were civilians. Thereafter Morocco promulgated a new Constitution under which it is affording them a retrial before the civilian Court of Appeal in Salé. Family members of the victims have been made parties to the case.

Judge Advocate General 'mishandled' Marine A trial

His Honour Judge Jeff Blackett
Further snippets of the Criminal Cases Review Commission report into the trial and conviction of Sergeant Alexander Blackman (aka Marine A) have emerged in The Telegraph, a paper with quite remarkable access to the document.

The article, which can be found here, criticises His Honour Judge Jeff Blackett, the Judge Advocate General, for failing to direct the board that the alternative verdict of manslaughter was available to them. 

The first part of Blackman's new appeal is due to be heard by the Court Martial Appeal Court in late January or early February. 

Sentencing remarks can be found here and the recent bail and case management decision may Ben found here. 

The appeal and satellite litigation continue.

Wednesday, January 18, 2017

Worst journalism of the year

This takes the cake. Contrary to the headline and lede of this article, the Supreme Court of Pakistan has not come out in support of the country's military courts. Rather, the secretary of the Supreme Court Bar Association has done so. There's a bit of a difference.

Uganda Constitutional Court stays court-martial of parliamentarian

The Constitutional Court of Uganda has stopped a pending treason court-martial of a civilian accused who is a member of Parliament. Details here from Nigeria Today.

Pakistani Senate wants to be at the table

Not surprisingly, the Senate of Pakistan is bridling at its exclusion from earlier discussions about what to do with the country's recently-lapsed 21st Amendment military courts. This article has the details.

A crisis in high command . . .

Vice Admiral Mark Norman
January 18, 2017, the Canadian Broadcasting Corporation reports that Prime Minister Trudeau endorses the decision of the Chief of the Defence Staff (CDS) to suspend Vice Admiral Mark Norman from the performance of his military duties as Vice Chief of the Defence Staff.  The CBC also reports that 'mystery still shrouds the sudden removal" of Norman. 

Meanwhile, as reported by the National Post, Canada's national police force, the Royal Canadian Mounted Police [RCMP] are conducting an investigation into the alleged link of 'classified information' which apparently would involve naval procurement and shipbuilding.

CBC reports that the RCMP investigation into the alleged leaks has been underway for some time and pre-dates the current Liberal government which took office in October 2015. Obviously, it also would precede the appointment of VAdm Norman to the VCDS position.

A crisis in command?

A developing crisis in command?
Meanwhile the CDS, General Jonathan Vance, who appointed Norman last summer, is nowhere to be seen.

He is apparently overseas attending meetings! Where? and Why?

In a an email released yesterday, Vance  acknowledged in the most underwhelming way possible that 

"there is a great deal of speculation surrounding the circumstances that led to my decision with regards to Vice-Admiral Norman . . . [but for] privacy considerations I am unable to provide further information."
Not surprisingly, the entire affair is gaining momentum and creating much anguish and angst inside the Defence Department. It is being described as a "crisis in command".

This is not aided by the fact that the Minister of National Defence, Harjit Sajjan, has also "gone silent" except to say, in a rather stern statement, that he supports General Vance in his decision to temporarily suspend Vice Admiral Norman from his position. This is far from being illuminating!

What's going on?

In an editorial published this morning by the Globe and Mail, pointedly asks what's going on?:
. . .  it’s less clear whether or not the Armed Forces command is doing the right thing by refusing to release even the smallest detail to explain the “temporary” departure of the man who is effectively the military’s chief operating officer.
Vice-Adm. Norman is responsible for security inside the Armed Forces and may have access to highly classified information. This raises a serious question: Is national security at risk.
The public deserves to know what's going on.

Tuesday, January 17, 2017

So there was a briefing after all

The Nation carries this report on Pakistan's festering military courts issue. Excerpt:
The second in-camera meeting between the government and major opposition parties ended in a stalemate as both the parties were at odds over the issue of military courts.

The controversial military courts, created in wake of the [December 2014] Army Public School massacre to try civilian on terrorism charges, had ceased to function after the expiry of their mandated period earlier this month. 
The meeting was chaired by National Assembly Speaker Ayaz Sadiq at the parliament house. Federal Minister for Law and Justice Zahid Hamid briefed the meeting on the performance of the military courts. 
Opposition members demanded of the government to come up with more details in the next meeting. They also demanded an in-camera session of parliament over the issue. Both the parties are set to meet again on January 31.
Why should Parliament meet in secret about reviving these courts? 

No ministerial briefing yet in Pakistan

We reported the other day that the Pakistani Defence Ministry would brief legislators today, giving a "performance report" on the 21st Amendment military court power to try civilians. Turns out that information was at best premature. According to this Express Tribune article, the briefing may be arranged only if parliamentarians are unable to reach some kind of consensus. (Not sure why the briefing shouldn't be held first, if the purpose is to give legislators a firmer grasp on the issues.) This article, from The Nation, explains the political realities:
The Pakistan People’s Party (PPP), Jamiat Ulema-e-Islam-Fazl (JUI-F) and Jamaat-e-Islami are firmly opposed to the extension of the authority of the military courts and consistently ran a campaign to the effect. The stand they have taken has not left any room for a compromise.

The government’s dilemma is that it is in no position to amend the Constitution single-handed to give powers to the military courts as it doesn’t have the requisite two-thirds majority in the parliament. Even if it is able to manage such a tally in the National Assembly with tremendous difficulty, it doesn’t have this number in the Senate, controlled by the opposition especially the PPP, which is in no mood to cooperate with the government.

Monday, January 16, 2017

Another case of the slows

This article reports on a recent decision of the Supreme Court of India, setting aside and remanding a decision of the Armed Forces Tribunal. The issue concerned pay for Army medical officers, but the case is noteworthy for the simple reason that it took so long. The article does not reveal how long it took the AFT to rule on the doctors' case, but consider when happened once it did:

  • The AFT decided the case on July 18, 2011
  • The SCI decided the case on January 12, 2017, nearly five and a half years later
Ironically, the Supreme Court -- which obviously was in no hurry while it had the case -- gave the AFT a six-month deadline for deciding the case on remand.

Vice Admiral relieved from performance of a military duty

January 16, 2016.  According to the National Post, earlier this date, the Chief of the Defence Staff, General Jonathan Vance, has announced that the Vice Chief of the Defence Staff, Vice Admiral Mark Norman, has been temporarily removed from the performance of military duty.  Such a procedure is addressed in article 19.75 of the Queen's Regulations and Orders.

According to the Globe and Mail, VAdm Norman was relieved from duty after an investigation revealed that he had allegedly leaked some information.

Sunday, January 15, 2017

Editor's Note

As readers of Global Military Justice Reform will have observed, Pakistan has cast a long shadow over this blog for over two years. The blog is not picking on that country, but rather attempting to provide readers with close coverage of an important story with implications for other countries that may be tempted, under the pressure of terrorism and other factors, to resort to military courts in preference to civilian courts, even for the trial of civilians, contrary to human rights norms. No more urgent issue exists in the field of military justice reform, so we will maintain course and speed.

A New York Times op-ed about Pakistan's military courts

Mohammed Hanif
Tomorrow's New York Times will include this thoughtful op-ed by British-Pakistani novelist Mohammed Hanif. Excerpts:
The military courts’ special jurisdiction expired on Jan. 7, and the government is holding consultations with opposition parties about reviving it. Some parties are wary, but no one really wants to be seen challenging the army.
Pakistan’s insistence on trying and convicting its terrorists in secret is baffling. The war against the Taliban and other religious extremists is supposedly a war of ideas. But how are we to fight an idea when we don’t know what it is?
*   *   *
These trials provide not justice so much as revenge, and they uncover very little information. The Taliban were fond of killing our soldiers and making videos while doing it. We let our army take away suspected terrorists to try them and hang them, but we want to be spared the gory details. 
And yet the gory details are what we need to know if we want to know our enemy. The reasons Aziz gave in his interview for killing Sabeen — she spoke out against the Taliban, she promoted secular values — echo views and values common among corporate workers, lawyers, journalists and other armchair jihadists. That’s why holding court hearings in the open matters: Because then they might reveal how a theological argument can lead to a massacre, how prejudice can lead to sectarian violence.

Fallout from the Military Justice Act of 2016

With enactment of the Military Justice Act of 2016 as part of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 (2016), countless changes will be needed in the Manual for Courts-Martial. Suggestions can be made by members of the armed forces as well as members of the public. Got any good ideas for things that ought to be in the Manual but aren't? Or specific ways to implement provisions of the new law that are not spelled out in detail in the statute? E.g., there will be uniform "tours of duty" for military judges. How long should they be? Will they be subject to curtailment, unlike fixed terms of office, and if so, by whom and according to what standards?

Unlike the proposed statutory changes, which it is said could not be circulated for comment because of an OMB Circular,* Manual changes can be and typically are circulated for public comment. It seems likely that the comment period for what will certainly be a big batch of changes will be sufficient . . . if commenters have done their homework in advance. In any event, proposed changes that are submitted early are more likely to have any impact since officially-generated changes tend to gain momentum over time.

Feel free to post comments on possible Manual changes on this site. (Real names only, please.) You can also send them to the Joint Service Committee on Military Justice or, presumably, DoD's Military Justice Review Group.

The recent legislation did not address a major issue relating to appellate review of courts-martial: the indefensible limitation on access to the Supreme Court in cases in which the Court of Appeals for the Armed Forces denies review. This is hard-wired into the U.S. Code and cannot be fixed by a mere Manual change. Query: will DoD under the Trump administration finally take the initiative on this and see if it can prevail upon Congress to do the right thing? Maybe Secretary-designate James Mattis and his general counsel (whoever that turns out to be) will see this simple, important and long-overdue reform as worthwhile and fair.
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* The OMB Circular should be amended, especially in light of the fact that neither house of Congress conducted a minute of public hearings on the Obama administration's comprehensive package of proposed UCMJ changes.

Social media and the Indian Army

There's a big story breaking in the Indian armed forces -- a number of soldiers have used social media to call attention to a variety of issues, including poor food and, most recently, the use of enlisted personnel to perform menial jobs for the personal benefit of superiors. Here's a link to India Today's report. Query: will the matter be handled internally or will outside agencies be forced to take charge?

Watch this story as another illustration of the challenges posed by technology for institutions that rely on discipline rather than personal autonomy.

Questions the National Assembly of Pakistan needs to ask

The National Assembly's briefing on whether to revive Pakistan's military courts' power to try civilians is only two days off. According to this report, the Defence Ministry will provide a "performance report" on January 17 about how the 21st Amendment courts functioned during their two-year existence. Lawmakers have posed seven questions, but what they are remains unknown to the public. That being the case, here are the bare minimum questions the Editor believes must be answered in any "performance report":

1. How many cases, by province, were referred to 21st Amendment courts during their two-year life span?

2. For each case, state the name of the accused and defense counsel, the charges, the pleas, the findings, the sentence, the date(s) on which the case was heard, and whether any part of the proceedings were conducted in public.

3. If any accused was not afforded the right to lawyer defense counsel of his own choosing, why not?

4. For each case, state the issues raised by the defense, and their resolution, attaching copies of the rulings on all substantive motions.

5. Was the voluntariness of a confession litigated in any case? If so, what procedure was used to resolve the matter in each such case?

6. Did any accuseds contend that they had been subjected to torture before they confessed? If so, what procedure was used to resolve the matter in each such case?

7. What opportunity did each convicted person have to prepare briefs and present oral argument to the Army Court of Appeal, and if there was a hearing was it open to the public?

8. How many of the voting members of the Court of Appeal were lawyers in each case?

9. How much time elapsed between sentencing and decision by the Court of Appeal?

10. Provide copies of all decisions of the Court of Appeal in 21st Amendment cases.

11. Did the Court of Appeal reverse or modify and judgment? If so, on what grounds?

12. What opportunity did each convicted person have to seek clemency from the Chief of Army Staff and the President?

13. If the Chief of Army Staff or the President granted clemency in any case, provide copies of the decisional document(s).

14. What 21st Amendment cases have been challenged in the civilian courts, and what have been the results of those challenges? What challenges are currently pending, and what issues do they present?

Central to the issue presented to the National Assembly is improving the administration of justice in the civilian courts, since the purpose of the 21st Amendment was to afford an opportunity to do so. This leads to a final question that conscientious members of the NA must ask themselves, rather than the Defence Ministry:

15. State with particularity those concrete steps that will be taken (and when they will be taken) to ensure that -- if the 21st Amendment is revived for any further period of time (notwithstanding applicable human rights norms) -- the civilian courts will at or before the second sunset date be in a position to dispense justice in all cases involving civilian defendants, no ifs, ands or buts.

If you were attending the January 17 briefing, what other questions would you want answered? Feel free to comment (real names only, please).

For essential background reading, see this excellent June 2016 report from the International Commission of Jurists.

Saturday, January 14, 2017

Courts-martial and criminal records

An interesting issue has arisen in New Zealand, according to this op-ed. A soldier was convicted of 12 sex offenses by a court-martial years ago, but there was no provision for recording this as a criminal conviction. Excerpt:
When he left the army, he was able to gain role as business development manager at Lexington Law without, the firm says, disclosing his offending.

That, says Colonel Craig Ruane, an officer who handles court martials, is the reality of the matter. Military convictions don't appear on police records. And military offenders aren't required to give DNA samples to police. 
There has been discussion of changing this. Ruane says it's overdue. 
We agree. In our view, the predatory behaviour of Corporal Corey Kennett is an emphatic statement of why this law change must be made, and must be made urgently.

Friday, January 13, 2017

Why military courts?

Islamabad attorney Babar Sattar has written this smart op-ed for The News International. Excerpt:
In the two years that military courts were functioning and handing out death sentences, we didn’t get a sense that terrorists were now so scared of being hanged that they were refusing to blow themselves up. But more importantly, despite all power vested in intelligence and law-enforcement agencies by the new and revised laws, and the absolute power vested in military courts, people still kept going missing. What explains this conundrum? Was the original diagnosis wrong? Was it never about inadequate laws?
What is the real appeal of military courts? That they are effective and efficient? That military officers working as judges and prosecutors are not exposed and so not afraid? That cases are decided on time and the decisions are executed on time? Forget the structural problems with these courts with the military acting as police, investigator, judge and executioner. Does anyone know what kind of evidence is presented that leads to convictions? Are any witnesses presented? Are they cross-examined? Are the accused advised and defended by counsel? 
The real appeal of military courts is that they don’t have to give reasons for what they do. The trials are not public and the rulings are not subject to scrutiny. No one hears the stories of the accused or why they did what they did. The decisions lead to no debate about right or wrong or whether these courts are striking the right balance between safety and efficiency while awarding death to citizens. They allow everyone not to address thorny moral and policy issues: undisturbed sources of extremism within society that support the supply-chain of terror.

Lahore HC bar opposes revival of military courts

Lahore High Court
The Lahore High Court Bar Association has issued a statement opposing the reintroduction of military courts' 21st Amendment power to try civilians. Details here, thanks to The Nation.

Glossary of Burkina Faso military justice terms

Me. Arnaud Ouédraogo
Me. Arnaud Ouédraogo has written this useful glossary, in French, of key Burkina Faso military justice terms.

January 17: key meeting in Pakistan

Legislative leaders will meet on January 17 to discuss revival of Pakistan's military courts' power to try civilians, the constitutional authority for which expired on January 7. Former President Ali Zardari and his Pakistan People's Party have come out in opposition to revival, according to this article.

Civilians tried with military personnel in Venezuelan coup attempt case

A Venezuelan military court has convicted three civilians along with five members of the armed forces for involvement in a February 2015 attempted coup. Details here in Spanish. Human rights jurisprudence severely disfavors the trial of civilians by military courts.

In another case, the President of the National Assembly, Julio Borges, has stated that the military detention of a Deputy is unconstitutional because a military court cannot try a civilian. Details here, also in Spanish.

Thursday, January 12, 2017

Don't complain online about the chow

A member of India's Border Security Force (BSF) is under investigation after having posted four videos on Facebook showing poor food. He has also alleged that senior personnel were selling rations on the open market. Details here. Members of all Central Armed Police Forces (the BSF is one) were forbidden to use social media to share information about service matters last November. Excerpt from The Hindustan Times account:
“CAPFs are directed that instructions may be issued to ensure no photos, videos, text, information of operations, service matters are uploaded on social media or passed on to the print or electronic media without the due approval of the concerned DG or this ministry,” the ministry’s letter said. 
“In case any violations of these or other standing orders are noticed, strict action should be initiated against the defaulters,” it added.
Unlawful command influence, anyone?

H/T to Sanya Kumar for calling this incident to the Editor's attention.

Wednesday, January 11, 2017

Pakistani opposition parties not [yet] persuaded about military court revival

Judging by this article in the Daily Times, a number of Pakistan's political parties are not [yet] sold on the idea of reviving the military courts whose constitutional charter expired on January 7th. Global Military Justice Reform is not in a position to handicap the matter, although there does some to be a lot less enthusiasm -- and more willingness to ask tough questions -- than there was when the 21st Amendment was enacted in 2015. Leave your dial where it is.

For a sense of how the renewal issue is being manipulated, consider this article, which reports that parents of victims of the Army Public School massacre (the December 2014 event that led to enactment of the 21st Amendment) favor extension; other parents said those who had spoken out did not necessarily represent the views of everyone.