Saturday, March 25, 2017

Canadian Military Justice -- by the numbers

Reforms of national military law is part of a worldwide movement in democratic countries; meanwhile Canada stands still. The worldwide trend is to transfer jurisdiction over criminal offences to civilian courts. This has been done in Austria; Belgium; Czech Republic; Denmark; France; Germany; Finland; Honduras; Italy; Japan; The Netherlands; Sweden; Switzerland; Tunisia etc. The objective being to ensure a judicial process free from the chain of command's interference.  Service members deserve a system of justice worthy of the Canadian principles that they have dedicated their lives to protect.  They deserve to have a fair and impartial system of justice that is transparent and accountable. This is currently not the case.

For the time being Canada appears to be satisfied with the 'status quo' in the result that its relatively small professional force consisting of 65,000 regulars are subject to a Canadian military penal system that is clearly behind the times. We will examine this in more details in subsequent posts.

What follows is, in point, form, the structural highlights of the Canada's current military justice system.

MILITARY TRIALS WORKLOAD - 2015-2016
  • There were 47 courts-martial. The three offences tried most often were: a) Conduct to the Good Order and Discipline; b) Absence without leave; c) Failure to comply with conditions. The conviction rate was 87.2 per cent.
  • There were 721 summary trials. The three offences tried most often tried were: a) Absence Without Leave; b) Conduct to the Good Order and Discipline; c) Drunkenness. The conviction rate was 87.38 per cent. Two notices of appeal were filed by the convicted with the Court Martial Appeal Court of Canada (CMAC).  One request for leave to appeal to the Supreme Court of Canada was filed by the Minister who also filed an appeal as a matter of right to the Supreme Court of Canada. 
MILITARY JUDICIARY 
  • There are 4 full-time military judges and a Court Martial Administrator. The Chief Military Judge wears the rank of Colonel. The three other judges serve in the rank of lieutenant-colonel. 
  • One of the military judges’ position is currently vacant. The three remaining military judges presided each over an average of 15 courts martial per year. 
  • This has to be considered as being an extraordinary low workload which cannot justify the significant expenditures to create and operate a separate judiciary. 
  • The importance of cost-saving measures and efficiency improvements alone suggests that the time has come to eliminate these specialized courts and to transfer their jurisdictions to civilian courts. 
CONJOINED TWINS: PROSECUTION AND DEFENCE SERVING UNDER THE JAG
  • The Judge Advocate General (JAG) wears the rank of Major-General. The JAG is not a judge. He does not perform any judicial functions. He is a legal advisor. The JAG reports directly to the Minister of National Defence.
  • There is a full-time Director of Military Prosecutions who serves under the general supervision of the JAG.
  • There is a full-time Director Defence Services Counsel who also serves under the general supervision of the JAG. 
  • There are approximately 170 military lawyers in the Regular Force. All serving under the command of the JAG. 
MILITARY POLICE
  • There are approximately 1,235 Military Police in the Regular Force consisting of 154 officers and 1,081 non-commissioned members
  • In 2015,  the MPs conducted approximately 11,500 (General Occurrences) investigations.
  • The military operates a Service Prison and Detention Barracks (SPDB) located in Edmonton. It provides imprisonment and detention services. The SPDB is not subject to reviews conducted by the Correctional Investigator of Canada.

Friday, March 24, 2017

Duterte watch

Philippine President Rodrigo Duterte is talking martial law . . . and military courts. Here's a news report.

AW Anniversary


On this day in 1774, George III signed the Articles of War. They became the model for the American Articles enacted by the Continental Congress on June 30, 1775, and are the ancestor of the Uniform Code of Military Justice as well as the military justice laws currently in force in a number of countries.

Thursday, March 23, 2017

Cameroon's misuse of military court

Cameroon is trying an Anglophone barrister in a military court that will meet in secret, according to this account. Excerpt:
Barrister Agbor-Balla was arrested on 17 January 2017 and held incommunicado as a result of his involvement in protests and strikes by anglophone lawyers and teachers in West Cameroon against what they perceive as the marginalisation of the anglophone minority. The barrister was charged with a number of offences, including incitement to secession, civil war and revolution, and 'Hostilities against the Fatherland' - some of which carry the death penalty on conviction. On the same day, the Cameroon Anglophone Civil Society Consortium over which Barrister Agbor-Balla presided was outlawed. 
IBAHRI [International Bar Association Human Rights Institute] Co-Chair Baroness Helena Kennedy QC reiterated: 'The arrest of Barrister Agbor-Balla by military authorities that now intend to prosecute, judge and sentence him is deeply troubling to the IBAHRI and the international community. That the military tribunal may be held in closed session is further cause for alarm. It is for these reasons that the IBAHRI is again compelled to intercede on Barrister Agbor-Balla's behalf, respectfully asking the Government of the Republic of Cameroon to abide by the United Nations Basic Principles on the Independence of the Judiciary and ensure that judicial proceedings are conducted fairly.' 
She added: 'We also draw the government's attention to the rights enshrined in the African Charter on Human and People's Rights, as well as the UN's Basic Principles on the Role of Lawyers, that have so far been denied to Barrister Agbor-Balla. These include his rights as an individual and a professional to personal liberty, free expression, association, protection from arbitrary arrest and the right to a fair trial.'

Guantanamo as a precedent

From yesterday's proceedings in the Senate of Pakistan:
PML-N’s Lt Gen (retd) Abdul Qayyum had a totally supportive view of the government's stance and said that there was no harm in setting up military courts for speedy trial of hardcore terrorists, as it happened in developed countries like the US in circumstances Pakistan was passing through.
The News International has this detailed account of what sounds like a remarkable day in Islamabad. 

Wednesday, March 22, 2017

By the numbers, in the Senate of Pakistan

[T]he government later claimed it was short of a couple of votes. Independent observers, however, dispute this claim. The Free and Fair Election Network’s parliamentary observers counted presence of 45 members at the onset of the proceedings and 46 by the end. In the 104-member upper house, at least 69 votes are required to pass an amendment in the Constitution.

From this report in The Express Tribune

Do you know your chain of command?

The decision in Director of Military Prosecutions v. Donohoe [2017] IECA 92 (per Edwards, J.) is now available here thanks to the Courts Service of Ireland. Among other issues -- all decided against Comdt. Nile Donohoe -- was whether he was fairly on notice of his military chain of command and hence could have registered an objection to the membership of the panel before which he was tried in a timely fashion. The entire decision is worth reading for its window on contemporary Irish military justice, including appellate and collateral review.

Perils of Pauline in Islamabad

Remember the constitutional amendment the Pakistani National Assembly passed by the required supermajority? Well, it was supposed to sail through the Senate today. Wrong! The Senate was unable to muster the necessary votes to approve it, and the matter will be brought up again next week. The Army Act amendment that goes along with the constitutional amendment was passed because it did not require a supermajority. Details here.
No decision could be reached on the 28th Amendment Bill 2017, which pertains to the revival of military courts for another two years, due to the absence of some members and non-seriousness of a few others. 
Only 67 members were present in the Senate, whereas for two-thirds majority to be achieved at least 69 members are needed. The voting on the 28th Amendment has subsequently been postponed to next Tuesday, March 28. 
The 28th Amendment has already been passed by the National Assembly, when 255 NA members voted in favour while only four voted against the bill on Tuesday. 
The bill recommends a two-year extension in the term of military courts. It also demands implementation of the law of evidence during the proceedings. 
The other points of the bill recommend that the suspect be brought in front of a court within 24 hours and be entitled to have a lawyer of their choice.
Presumably there will be frenzied politicking, pro and con, between now and March 28. 

Tuesday, March 21, 2017

One down, one to go

The lower house of the Pakistani Parliament today passed a constitutional amendment and related legislation reviving military courts for two years (actually less, since the two years are deemed to start from the January 7, 2017 expiration of the 21st Amendment). The measures now go to the Senate, where a 2/3 vote is needed for the constitutional amendment. Here's a good report on a bad pair of laws.

Global Military Justice Reform awards the National Assembly the George III award for retrograde legislation.


New book from Joshua Kastenberg

University of New Mexico law professor Joshua E. Kastenberg has a new book that will be of considerable interest to military justice mavens. From the law school's announcement:
A new book by University of New Mexico School of Law Professor Joshua E. Kastenberg is the first published history to explore the military legal expansions of Major General Enoch Crowder, Judge Advocate General of the U.S. Army. Kastenberg also examines the development of the laws of war and the changing nature of civil-military relations. 
“To Raise and Discipline an Army: Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I,” has been released by the Northern Illinois University Press and is available from various book stores, including Amazon
In 1915, Crowder convinced Congress to increase the size of the Judge Advocate General’s Office—the legal arm of the United States Army—from thirteen uniformed attorneys to more than four hundred. Crowder’s recruitment of some of the nation’s leading legal scholars, as well as former congressmen and state supreme court judges, designed many of the laws and policies and helped legitimize President Woodrow Wilson’s wartime military and legal policies. 
The book was reviewed by Fred L. Borch, regimental historian and archivist, US Army Judge Advocate General’s Corps, who comments, “No book has ever told the story behind this remarkable expansion of military legal talent. Kastenberg shows that the influential work of army lawyers significantly altered civil-military relations in the US. He should be commended for his exhaustive use of primary sources.” 
Burrus M. Carnahan, lecturer in law, The George Washington University, former judge advocate, US Air Force, also reviewed the book. “This is an original and significant contribution to the fields of legal history and US military history, thoroughly researched and clearly written,” said Carnahan. 
Prior to joining the UNM Law School faculty in September 2016, Kastenberg had a 20-year career as a lawyer and judge in the U.S. Air Force. He has published several books on law and the military, including Shaping US Military Law: Governing a Constitutional Military.

Monday, March 20, 2017

Some progress in Lebanon

Human Rights Watch reports that the Lebanese Military Court is backing down in part on the trial of civilians:
In a positive step, Lebanon’s Military Tribunal today declared that it does not have jurisdiction to try 14 civilian protesters on the charges of rioting and destruction of property. Their cases will be referred to civilian courts instead. The protesters, who were arrested during demonstrationsover a waste crisis in the capital Beirut in 2015, were charged in military court and had been facing up to three years in prison. 
Civilians should not be tried in military courts, and the court’s decision is a step in the right direction. It may also spell good news for at least 24 other protesters who are awaiting charges before military courts. 
In January, a Human Rights Watch report exposed the due process and international law violations inherent in trying civilians before military courts in Lebanon. Those who have stood trial at military courts describe incommunicado detention, interrogations without a lawyer present, ill-treatment and torture, the use of confessions extracted under torture, decisions issued without an explanation, seemingly arbitrary sentences, and a limited ability to appeal. 
In Lebanon, military courts still have broad jurisdiction over civilians, including children. But defendants, lawyers, and Lebanese human rights groups say state authorities use this jurisdiction to intimidate or retaliate against people for political reasons, and to stamp out dissent. Outspoken activists, journalists, and human rights lawyers have all been tried in military courts. 
Civil society organizations in Lebanon have long advocated for removing civilians from the jurisdiction of the military courts because of concerns about the lack of fair trials there. 
While today’s ruling is welcome news, there is still a long way to go. Five of the 14 activists still face charges of resisting arrest and remain on trial in military courts, where their right to a fair trial is not guaranteed. Their cases should be transferred to civilian courts as well. Military courts have no business trying civilians, and Lebanon’s parliament should finally put a stop to this practice by passing a law to remove civilians from the court’s jurisdiction entirely.

Sunday, March 19, 2017

Military ethics master's program at Case Western Reserve

Case Western Reserve University has announced the creation of a program leading to the degree of Master of Arts in Military Ethics. Details can be found here. The deadline for applications is April 10, 2017.

Saturday, March 18, 2017

A bespoke appellate court

The manslaughter case of IDF Sgt. Elor Azaria has been appealed to the Military Court of Appeal by both the prosecution and the defense. This article reports that the appeals will be heard by a panel of five judges: the chief judge of the court, two civilian judges, and two nonlawyer general officers.

Perhaps some reader in Israel can comment on how unusual this is. (Please post under your real name.)

Marines United

Jared Keller has a worthwhile report on Task & Purpose about the Marine United phenomenon. This is a moving target, and one that may cast a long shadow over American military justice for some time. Other news accounts indicate that many participants have already been identified. No word yet on people lawyering up.

What is to be done (about peacekeeper discipline)?

Francesco Presutti of the Center for Human Rights and Global Justice at NYU Law School is to be congratulated on this thoughtful report on the UN's latest plan to combat indiscipline among peacekeepers. Excerpt:
Certainly, in the end Member States always overcome their divisions and unite in condemnation of sexual exploitation and abuse. In 2015 and 2016, the Fifth Committee (the main committee of the General Assembly entrusted with the administrative and budgetary questions of the UN), and the Security Council successfully agreed to important resolutions, which dealt with some key aspects of sexual abuse and exploitation. Then, on March 10, just one day after the release of the secretary-general’s report, the General Assembly hastily adopted a rather anodyne resolution, its first plenary resolution on this subject. The policy of “zero tolerance” that all these resolutions advocate, however, is bound to remain empty rhetoric if more effective measures are not undertaken. Therefore, it is right for the secretary-general to mobilize Member States at the highest level, and his request to the Legal Counsel of the UN to explore ways to press Member States to exercise criminal jurisdiction for both uniformed and civilian personnel is a welcome step in the right direction. Ensuring criminal accountability is an integral part of the international community’s proclaimed zero-tolerance policy. The military personnel of Member States’ peacekeeping forces, in particular, who are immune from the jurisdiction of the host country and subject to the contributing States’ exclusive jurisdiction by virtue of the applicable Memoranda of Understanding, must not operate in an area of impunity. In spite of countless reports, studies and proposals to close this gap, such as the longstanding option of an international convention in connection with crimes committed in peacekeeping operations, a proper legal framework has not yet been created to address this issue effectively, and even in this latest report the matter is not sufficiently developed.

Transparency at the STM

The Supreme Court of Brazil has ordered the Supreme Military Court to make available to the public the files and audio of its proceedings during the 1964-85 military dictatorship. Details here, in Spanish. The military court had resisted in the interest of respecting the privacy of those who were accused.

The bar speaks up, finally

Somewhat belatedly, several major bar organizations in Pakistan have spoken up in opposition to the revival of military courts. It's hard to tell given fragmentary and unreliable news reports, but that bus may have left . . .

Thanks, merci and gracias

Many thanks to the contributors who stepped into the breach during the Editor's absence in India last week. And special thanks to contributor Major Navdeep Singh for the excellent program he co-chaired in Chandigarh on the interrelated topics of military justice and tribunalization. At left, Brig. Gen. Jan Peter Spijk (President of the International Society for Military Law and the Law of War, center) and Global Military Justice Reform contributor Frank Rosenblatt (right).

Friday, March 17, 2017

Military Justice In Germany

Criminal Offenses

Members of the German armed forces are subject to the civil criminal code and are tried for common criminal offenses in the civil court system. There are no military correction facilities; incarcerated military offenders serve their sentences in ordinary civilian prisons.

Therefore, all criminal offenses perpetrated by soldiers in Germany are adjudicated by courts of ordinary jurisdiction. Germany also exercises criminal jurisdiction over all offenses perpetrated by German soldiers while they are deployed abroad.

German criminal law consists of offenses governed by their Criminal Code, [Strafgesetzbuch] among them are offenses specifically applicable to soldiers, such as avoidance of military service or sabotage.

Soldiers enjoy the same civil rights and liberties possessed by other citizens. They are permitted to take an active part in political life, be members of political parties, and join trade unions and professional associations.

Disciplinary Offences

Offenses of a specifically military character committed by members of the Bundeswehr are tried in two military court divisions of the Federal Administrative Court and by three military disciplinary courts having a total of twenty-nine chambers. A civilian professional judge presides over each chamber, assisted by honorary military judges.

The chambers are the courts of first instance for disciplinary court proceedings against soldiers. The military courts of the Federal Administrative Court are the courts of appeal, each being composed of three civilian judges and two honorary military judges.

Sentences range from discharge from service to financial penalties to reduction in rank. The lowest level of offense, such as disobedience or unauthorized absence, may be dealt with informally in a soldier’s own unit.

Happy Saint-Patrick's Day to everyone



Found memories and special thoughts for my late uncle and god-father William Kelly from Québec City, a WW II veteran.

Thursday, March 16, 2017

Comments policy

One of Global Military Justice Reform's very few rules is that we do not public comments that are anonymous or pseudonymous. So by all means, go ahead and comment, but you will need to use your real name. Comments are moderated. Thanks.

World Justice Project -- Rule of Law Index

The World Justice Project is a independent, multidisciplinary organization working to advance the Rule of Law around the world. It publishes a World Justice Ruleof Law Index. The 2016 edition covers 113 countries and jurisdictions relying on more than 110,000 household and expert surveys to measure performance against 44 indicators and 8 primary rule of law factors. The index is built from the assessments of 1,000 respondents per country and local experts.

Selected 2016 rankings are as follows:
  • Denmark; Norway; Finland; and, Sweden as the four top countries.
  • Germany (6th); United Kingdom (10th); Australia (11th); and, Canada (12th).
  • Japan (15th); United States of America (18th).  
  • China (80th); Russian (92th);Turkey (99th).
  • Pakistan (106th) Cambodia (112th). 
  • Venezuela (113th) ranks last.

Ireland's Military Justice System - A synthesis

By virtue of Ireland’s shared heritage with the United Kingdom, Ireland has a common law legal system. However, unlike the UK, Ireland also has a written constitution. When Ireland achieved its independence in 1922, the Constitution provided that:

. . . extraordinary courts shall not be established save only such military courts as may be authorized by law for dealing with military offenders against military law. The jurisdiction of Military Tribunals shall not be extended to or exercised over the civil population save in time of war. . .[See article 70 of the Constitution of Irish Free State, 1922]

The attached 2008  article titled by Colonel Tony McCourt, Military JudgeRefined and Respected”  provides a synthesis of the many reforms brought to the Irish Military Justice System up until that date.  We will cover changes that have taken place since then in a subsequent post.

Swiss Army sentenced four senior soldiers for improperly accepting compensation


February 2017. A SwissArmy tribunal tried three senior officers and a warrant officer accused of breach of trust, false entry on documents, receiving and improper disposal of government material and property, accepting compensation, consideration or financial advantage by supplying government property during period 2008 to 2013. In particular, Lieutenant-Colonel H was convicted of illegally authorizing access to the military firing range to members of a local Rifle Association for which he was the vice-president. These members paid for access to the firing range, the loan of weapons and the use of ammunition. The monies collected was distributed amongst the four convicted soldiers who were sentenced appropriately

Should the military pay for ‘in vitro” fertilization?


A married couple serving in the Canadian military unsuccessfully attempted to conceive a child for a number of years. CAF medical authorities determined that the husband suffered from male factor infertility. As a result, the couple required intra-cytoplasmic sperm injection (ICSI) and in vitro fertilization (IVF). Under the established Spectrum of Care (SoC), the military would only cover the cost of ICSI, and not IVF. The female soldier submitted a grievance requesting funding for IVF.
The Surgeon General denied the grievance. 
He stated that since the grievor did not meet the eligibility requirements for coverage of IVF, she was not entitled for reimbursement of costs.  The external Military Grievance Board acknowledged that the grievance was not about the grievor's infertility, but that of her husband's.  

The Grievance Board contacted a specialist doctor in the field of infertility and reproductive medicine, who certified that ICSI cannot be conducted without IVF, and that ICSI alone is meaningless as an assisted reproductive technique. The Grievance Board found that to exclude IVF from ICSI treatment would represent an incomplete and meaningless treatment. It recommended that the CAF reimburse the grievor's spouse for the IVF portion of his ICSI treatments, up to three cycles. That recommendation is awaiting a decision by the Chief of the Defence Staff in his role as the Final Authority in the CAF Grievance Process.

The Fat Leonard cases down under

The Australian reports:

On August 20, 2008, a senior Royal Australian Navy commander typed a stunning email that has now landed him in the middle of the biggest fraud scandal in the history of the US Navy.

Using an account called ­“dingo11”, the sailor, who was then the Australian liaison offic­er for the US Seventh Fleet, ­allegedly sent an illegal message revealing the highly classified ship schedules for America’s largest and most powerful fleet.

According to US authorities, the person he sent it to was Leonard Francis, known as “Fat Leonard”, a Singapore-based defence contractor. In return, Fat Leonard paid the Australian com­mand­er and a small group of corrupt US naval officers, who called themselves the “Wolfpack”, with sex-fuelled parties, Cuban cigars, caviar, $2000 bottles of Cognac and presidential suites in Asia’s finest hotels.

The RAN is now in damage control and US authorities are believed to have referred the former­ commander’s actions to the Australian Federal Police.

The Australian understands that a second Australian naval commander is also being invest­ig­ated in relation to suspected ­involvement in the bribery scam. Both men have since left the navy.

Pakistan Supreme Court lacks authority to apply compromise provision to military court murder cases

The Supreme Court of Pakistan has held that it lacks authority to apply the provision of the Criminal Procedure Code (under which a capital case can be compromised to life imprisonment by arrangement with the victim's family) to convictions by courts-martial. The judgement in Hussain v. Federal Government, C.R.P. 87 & 125/2015 (Pak. Jan. 23, 2017) is available here. A news account can be found here. The decision stresses the court's limited role with respect to courts-martial.

Swell idea from a Senator

Sen. Thom Tillis (R.-NC)
From the World's Greatest Deliberative Body, this report via the Tribune News Service:
Furious over a nude-photo scandal involving male Marines who made sexually violent comments online about female Marines, U.S. Sen. Thom Tillis, R-North Carolina, said Tuesday that he wanted to explore how to punish non-active duty and retired personnel who participated.
One idea: stripping any guilty veterans of benefits. 
There should be “dire consequence for people stupid enough to do these kinds of things moving forward,” said Tillis, who sits on the Senate’s Veterans’ Affairs and Armed Services committees. 
He asked for information about how lawmakers could stop post-service benefits for veterans who had participated. “If there’s something we can do to disallow their benefits for bad behavior after they’re discharged, those are the sorts of things we have to do,” he said.
Sen. Tillis is neither a veteran nor a lawyer. 

La justice militaire n'existe plus en France

Jean-Yves Le DrianMinistre de la Défense en France affirme qu'il n'y a "plus de justice militaire" en France.

En France jusqu'en 1982, les militaires étaient jugés par des tribunaux spéciaux pour des infractions commises soit en France, soit à l'étranger lors d'opérations. A partir de cette date, on a supprimé ces tribunaux et créé des chambres spécialisées à l'intérieur des tribunaux de grande instance, l'objectif étant de soumettre peu à peu les militaires aux règles du droit pénal pour des infractions commises en France.

En 1999 naît le Tribunal aux armées de Paris (TAP). Ce dernier juge les infractions des militaires commises à l'extérieur de la France. Il ne sera dissous qu'en 2012. Désormais ces militaires seront jugés par les tribunaux de grande instance selon la procédure classique. Pour certains d'entre eux, il existe des sections spécialisées dans les affaires militaires, mais elles sont présidées par des magistrats civils.

Cette justice militaire a été abolie, notamment parce qu'elle était accusée de partialité. Une justice de militaires "qui se jugeaient entre eux" qui était de plus en plus dénoncée par la population et les autorités civiles.

Blackman case a "watershed"?

The Times of London has this piece by Ewen Southby-Tailyour, a retired Lieutenant Colonel in the Royal Marines, about the Court Martial Appeal Court's decision in R. v Blackman. The headline: "Watershed case puts military justice in block."

The Editor's opinion: Lt.-Col. Southby-Tailyour has not made the case in any sense. Indeed, unless I am misreading his article, he seems to be inviting prosecution for, as he says, "help[ing my sergeant-major] to die" in Oman in 1968. How analogous is that to shooting a wounded enemy combatant?

Wednesday, March 15, 2017

CMAC substitutes manslaughter for murder in Blackman case

HHJ Jeff Blackett
The Judge Advocate
General
The Court Martial Appeal Court today handed down its decision in the case of Royal Marines Sgt. Alexander Blackman. The court substituted a finding of manslaughter by reason of diminished responsibility for the earlier murder conviction. The court will hear further submissions concerning sentence. The opinion in R. v Blackman, 2017 EWCA Crim 190 includes the following:
We would, however, like to make it clear that, when reviewing the matters the subject of our judgement, we could see no basis for any criticism of the conduct of the court martial by the Judge Advocate General [His Honour Judge Jeff Blackett]. He left the issues which had been raised by the prosecution and the defence during the hearing of the court martial to the Board in an entirely fair and proper manner.
The court's summary of the judgement can be found here.

RCMP widens its investigation into leaks at Defence


March 15, 2017. Vice-Admiral Mark Norman, Canada's Vice-Chief of Defence Staff [VCDS], was suspended from his duties but not relieved of command more than two months ago. According to CBC, VAdm Norman apparently came to the attention of the Mounties after investigators examined email traffic that referenced him. 
His legal issues began on Jan. 9, when he was questioned at length by investigators in his home. He was suspended by the military four days later and news of the extraordinary step was leaked to the media. Norman's electronics, including home computer and tablet, were seized under a search warrant that has been sealed for national security purposes.
The CBC now reports that the RCMP has been widening their security investigation into a series of leaks possibly involving ‘classified cabinet papers, decision and other sensitive information.”

More to follows

Tuesday, March 14, 2017

Colombian Senate approves the Special Jurisdiction for Peace


The plenary of the Colombian Senate on March 13th approved by an ample majority (61:2) the reform of the Special Jurisdiction for Peace (JEP), manifesting their support for the peace agreement signed between the government of President Santos and the FARC in Havana, Cuba.  The JEP will be in force for a maximum of 15 years. As of now, the JEP begins to function and the competence of the Committee of Choice is activated which has the task of designating the magistrates who will form part of the chambers and sections of this Jurisdiction for Peace, of the Unit of Investigation and Accusation and of the Executive Secretariat of the tribunals that were created in the Havana agreements.

This legislation creates the necessary tools to judge the actors of the armed conflict.  It proposes punishments of up to 20 years imprisonment for those who do not recognize their responsibility.  It allows civilians to present themselves to the tribunal on a voluntary basis should they consider that they have any responsibility in the conflict.  It establishes special and differentiated treatment for the members of the police andulic armed forces.

Another side to the Blackman case

The Royal Courts of Justice, London
We seem to have missed it earlier on, but there is more riding on tomorrow's decision in Royal Marines Sgt. Alexander Blackman's case before the Court Martial Appeal Court than simply his conviction and sentence: his attorneys gave notice some months ago to his original solicitor and barristers that he was considering suing them for malpractice in connection with his court-martial. Details here.

Marines United

Prof. Rachel VanLandingham
Global Military Justice Reform contributor Prof. (and retired Air Force Lieutenant Colonel) Rachel VanLandingham has written a strong op-ed about the unfolding "Marines United" social media scandal. Her lede:
U.S. Marine Corps Commandant General Robert Neller should be immediately relieved of his command. As the senior leader of the Marine Corps, he is ultimately responsible for the good order and discipline of the Corps, and his willful ignorance of his Marines’ escalating abuse of female Marines on social media has allowed both to seriously degrade. 
Not only does Neller’s dereliction of duty warrant his firing, subordinate Marine Corps leaders need such an unequivocal signal that failure to exercise their command to safeguard their female members will not be tolerated.

Thailand v. Geneva

"Failure to communicate"
Problem? What problem? That seems to be the situation with Thailand's presentation to the UN in Geneva. Khaosod reports:
Although the junta ended the use of the military court against civilians last September, the order was not retroactive and 416 cases against civilians continued to be adjudicated by it. According to Thai Lawyers for Human Rights, an additional 500 civilians still faced arrest warrants before September last year and could also be put on trial at military court. 
A representative of the Defense Ministry, under which the military court operates, tried to reassure the 18 human rights experts in Geneva reviewing Thailand’s implementation of the International Covenant on Civil and Political Rights, or ICCPR, that there’s nothing to worry about. 
Lt. Gen. Krisna Bovornratanaraks, Deputy Judge Advocate General at the Defense Ministry insisted that the military court is independent and qualified to continue carrying out trials against the remaining civilians. 
He said the human rights of the defendants are guaranteed and that judges have no lesser knowledge than judges in civilian courts. 
“All [military] judges are also trained on human rights. The right to bail is also available,” he told the experts in Geneva today, adding that requests to bail are handled on the same basis as civilian court and that trials can be observed. 
Earlier on Monday, the regime representative also pointed out that it would be inconvenient to transfer on-going cases against civilians to ordinary courts of justice and claimed that there was no precedent. It was also argued that doing so may lead to prolonged, possibly repetitious trials. 
The Head of Thai Lawyers for Human Rights Yaowalak Anupan, expressed differing views at a symposium organized in Bangkok by the UN Office of the High Commissioner for Human Rights, to observe the proceedings in Geneva today. 
Yaowalak said the military court can’t be regarded as independent since it’s structurally under the Ministry of Defense and judges all military officers – in contrast to courts of justice, that are not under the Ministry of Justice. 
Yaowalak mentioned that in some lèse majesté cases handled by military court since the 2014 coup, the trials prolonged themselves for a very long time when witnesses claimed they were unavailable. This, she said, led to some defendants pleading guilty so that the trial could be concluded.
The question of what to do with pending cases when a country abandons military trial of civilians has been faced elsewhere. A recent example is Morocco. There, eventually, the government moved pending military court cases into the civilian courts. 

2010-2016 sexual assault cases to be reviewed by Canadian police forces

Study: 10,000 sexual-assaults from 873 different jurisdictions found baseless

On February 3, 2017 Canada’s national newspaper, the Globe and Mail, published the results of 20-month-long investigation into how civilian police handle sexual assault allegations. The Globe investigation reviewed more than 10,000 sexual assaults cases gathering data from 873 police forces across Canada, save and except investigations conducted by the military.


The findings exposed deep flaws at every step of the police investigation process. 

Particularly disturbing, the Globe and Mail found that police dismissed ONE out of every FIVE sexual-assault reports  - meaning that police believe the crime did not happen. The problem is even more acute in the Canada’s North.  See “The Challenge of Handling Sex Assault in Canada’s North.”

In the wake of the Globe investigation, most police forces, including the Royal Canadian Mounted Police, have decided to review the sexual-assaults case that were labelled as 'unfounded' for compliance with police policy and appropriate decision-making. For the Ontario Provincial Police alone, this means that no less than 4,000 sexual-assaults cases are to be reviewed. 

GOOD NEWS


Military Police 2010-2016 Sexual-Assaults Investigations

During period 2010-2014, the military police dismissed 29 % of sexual-assaults as being ‘baseless.” In 2016, the Military Police’s dismissal rate dropped by nearly a third; 11 percent.

On March 13, 2017. Brigadier-General Robert Delaney, Provost Marshall (Chief of Police), announced that the Military Police will review all sexual-assault cases that were dismissed as unfounded going back to 2010. This means that no less than 167 unfounded cases will be reviewed. 

Breaking with tradition, the Provost Marshall also said that he is hoping to include ‘outside expertise” in that review similar to a program which has been running in Philadelphia since 2000, in which local advocacy groups are invited once a year to go through the police department’s sex-assault case files for signs of bias and investigative deficiencies. That model is considered as the gold standards in policy accountability.  https://www.theguardian.com/world/2013/jul/02/rape-philadelphia-investigation-crisis-crimes

Blackman ruling on Wednesday

The Royal Courts of Justice, London
The Court Martial Appeal Court is to announce its decision in the case of Royal Marines Sgt. Alexander Blackman on Wednesday at 10:30 a.m. The case was referred to the court by the Criminal Cases Review Commission.

Monday, March 13, 2017

Canada names a new (temporary) Vice Chief of the Defence Staff

Lieutenant-General Alain Parent, RCAF
The Chief of the Defence Staff, General John Vance, has appointed Lieutenant-General Alain Parent as the new acting Vice Chief of the Defence Staff. Parent will assumed the VCDS duties on May 30, 2017. He will replace Vice-Admiral Ron Lloyd , the Commander of the Royal Canadian Navy, who has acted as the VCDS since the 'temporary' removal of Vice Admiral Mark Norman. Although no official reasons have been given for the removal of Norman, the media has reported that his removal is associated with the alleged release of information connected to the shipbuilding program. See National Post - March 7, 2017

Canada celebrates 100th anniversary of Vimy



On April 9, 2017 Canada will honour the sacrifices made during the First World War (WW 1) as they mark the 100th Anniversary of the Battle of Vimy.

On Easter Monday, April 9, 1917 the Canadian Corps made up of four Canadian Infantry Divisions was brought together for the first time during the war as a fighting force. At 05:30 hrs that morning, every artillery at the disposal of the Canadian Corps began firing and the ground attack began led by the 1st, 2nd and 3rd Divisions. The weather was cold. It later changed to sleet and snow. By nightfall on April 12, 1917 the Canadian Corps was in firm control of the Vimy ridge. The Canadian Corps had suffered 10, 602 casualties: 3,598 were killed and 7,004 were wounded. Four Canadians received the Victoria Cross in recognition of their valour and bravery in battle.

This battle is commonly highlighted in Canada as a turning point in Canadian history, where the four Canadian Army divisions were brought together under a single command. The impressive victory is often cited as the beginning of Canada's evolution from Dominion to an independent nation.

A 100-hectare (250 acres) of the former battleground has been ceded by France to Canada to host a memorial park and the site of the Canadian National Vimy Memorial which is the largest and principal overseas war memorial.

Proposed scope of military courts' jurisdiction in Pakistan

Dawn reports on the state of affairs regarding the bills to revive military courts in Pakistan. The measures would, if approved by each house of Parliament, expand those courts' jurisdiction:
The offences in which such suspects proposed to be tried include: raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan, law enforcement agencies, judiciary, public servants or civilians or attack any civil or military installations in Pakistan; or abduct any person for ransom, or cause injury or death of any person; or possess, store, fabricate or transport or use explosives, fire-arms, instruments, articles, suicide jackets; or use or design vehicles for terrorist acts; or provide or receive funding from any foreign or local source for the illegal activities under this sub-clause; or act to over-awe the state or any section of the public or sect or religious minority; or create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan. 
The proposed amendments to the Army Act also include several offences mentioned in the Anti-Terrorism Act 1997, which would be tried by the military courts.

Saturday, March 11, 2017

Signs of life in Uruguay's Chamber of Deputies

El Pais (Montevideo) reports that efforts will (finally) be made to move forward with a 2011 bill that would transfer the authority of the Supreme Military Court to the Supreme Court of Justice. The bill would create two specialized military criminal courts presided over by civilian judges. It has been bogged down in the Chamber of Deputies' Committee on the Constitution and Codes; the plan is to move it to the Defense Committee.

Friday, March 10, 2017

Straight news or opinion?

In the fog bank that is Pakistani journalism, one is constantly wondering whether an article is opinion or straight news. Consider this contribution by Tariq Butt. It is not labeled opinion, but it reads that way to me -- and opinion of a particularly cheerleading variety. Take a look and see if you agree that this is an effort to stampede the Pakistan People's Party into step. Excerpt:
"It appears that once the amendment bill is moved in the National Assembly on Friday, further consultations will be held among the parliamentary groups so that every side is satisfied for its unanimous passage. Every bill of such national importance has always won parliamentary approval with complete unanimity."
How marvelous. I had expected better of The News International.

No consensus after all

The Express Tribune reports that the government -- contrary to its claims -- has been unable to reach agreement with the Pakistan People's Party on the terms of a measure that would revive the country's military courts. Excerpt:
Convened to accost the main opposition party, the PPP, which had boycotted two previous meetings of parliamentary leaders, the two sides came up with contradictory statements after the huddle, with the PPP announcing that it would be tabling a separate bill on the issue.
Finance Minister Ishaq Dar, who represented the government side, purportedly claimed that the PPP had conceded its support to reinstating the military courts, saying it would now support a two-year reinstatement.
On its part, the government agreed to inculcate the provisions of the Qanoon-i-Shahadat-1984 (Law of Evidence) in the draft as proposed by the PPP. His statement, reported by various media outlets, was immediately contradicted by the PPP. 
“[The] Pakistan Peoples Party has not agreed to the draft legislative proposals prepared by the government for the revival of military courts,” the party’s spokesperson Senator Farhatullah Babar said in a statement issued after the meeting. 
“Media reports about the PPP having agreed to the draft legislation are not correct and are contradicted. The PPP totally and roundly rejects any statement purportedly issued by any official agency creating a false and erroneous impression of the PPP having agreed to the draft proposals of the government.”
This explains the existence of diametrically opposed accounts of the current state of play: one side is making things up. News accounts on this subject cannot be accepted at face value.

Thursday, March 9, 2017

Additional proposals on UN peacekeeper discipline

Today's New York Times has an advance story about a report the UN is to issue today about steps to ensure better discipline among peacekeepers. Excerpt from this article:
Faced with persistent allegations of sexual abuse by United Nations peacekeepers, the new head of the world body is proposing to stop paying countries that fail to investigate claims against their soldiers “in a timely manner,” and to put that money instead into a trust fund to assist survivors. 
In what he calls “a new approach,” the secretary general, António Guterres, also wants all United Nations personnel to attest, in writing, that they understand the policy against sexual exploitation and abuse, which includes paying for sex. In addition, he intends to develop a new set of rules to prevent sexual abuse by peacekeepers — possibly including “prohibitions on the consumption of alcohol.”

Free speech and Brazil's military police

More excellent work here from Human Rights Watch, this time concerning efforts to squelch free speech by personnel of Brazil's military police. Excerpt from HRW's report:
Brazilian authorities should reform laws to ensure that any punishments meted out to military police officers who transgress legal restrictions on their right to free expression are proportionate to the severity of any offense, Human Rights Watch said. They should ensure that all officers have access to an effective and impartial appeals process. 
The authorities should also consider whether it is necessary and appropriate for police officers to be subject to the limits on free expression imposed under the military criminal code and state disciplinary codes, or whether a less restrictive legal framework is called for under international and regional human rights law. 
Several reform efforts are under way that could achieve that purpose, and result in more accountable and effective policing. They include bills in Congress to delink the military police from the army and to abolish administrative detention, as well as proposals at the state level to reform disciplinary codes. 
The unreasonably harsh punishments handed down to some police officers have a dramatic chilling effect on other members of the force, who often refrain from expressing opinions or suggestions about law enforcement reform for fear of reprisals, said Human Rights Watch. 
“Officers can be imprisoned and their careers destroyed for expressing opinions about police reform that their commanders don’t like,” said [HRW's Brazil director Maria Laura] Canineu. “These penalties are out of all proportion to whatever interest the government has in limiting their ability to speak out.”
Brazil has 436,000 military police.

A short-lived resistance?

According to the leader of another party, the Pakistan People's Party has dropped its counter-proposals for reviving the country's military courts. This article from The Nation tells the tale (assuming its accuracy):
Pakistan Tehreek-e-Insaf (PTI) leader Shah Mehmood Qureshi said that Pakistan People’s Party (PPP) has agreed to extend the military courts for two years, reported Waqt News. 
Qureshi further added that PPP has taken back all its demands. “PPP has also retracted its demand of Session[s] Judge’s [p]resence during the hearing,” he said. 
All parties have agreed over the new resolution for the extension of military court, claimed the PTI leader.

Wednesday, March 8, 2017

Why doesn't Parliament fix this?

[Prosecutor] Lt Col [William] Peters told the court martial board, which acts as the jury: "The reason this is now being heard at court martial before yourselves as opposed to a jury in the crown court is because these events are alleged to have taken place in Germany therefore outside the jurisdiction of civilian courts."

From this account of the court-martial of a British former warrant officer

Quaere: why not fix the statute so individuals in this accused's position can be tried in a civilian court? Human right jurisprudence strongly disfavors the court-martial of anyone other than serving personnel.

Tuesday, March 7, 2017

CIA witnesses in GITMO case

A military commission judge has entered an important order, requiring testimony by CIA officials regarding the torture of the man accused of masterminding the bombing of USS Cole. Details here, thanks to the Miami Herald's Carol Rosenberg.