Sunday, December 16, 2018

An incomplete step in the right direction

Cameroon has released 289 English-speaking civilians who were to be tried by military court. From this report:
Ngaibe Philippe, one of the lawyers defending English-speaking detainees, says [Cameroon Pres. Paul] Biya should be tried for refusing to respect Cameroon's laws and taking people charged with simple crimes to the military tribunal.

"How on Earth would you take a crisis of misdemeanor and they are judged in a military court," Ngaibe said. "Now a majority like our president, Sisseko (Ayuk Tabe), fall under felonies. It means those ones are going to remain in jail while a minute number of 289 are released under misdemeanor. This is absolute nonsense and it is not going to change the face of the struggle in anyway."
Amnesty International released this statement.

Thursday, December 13, 2018

Military trial sentences qua civilians in Pakistan

It has been reported by a Pakistani website that military courts in Pakistan have handed over 284 death sentences to ‘militants’ out of which 56 persons have already been executed.

This was informed to the National Assembly by the Defence Minister of Pakistan.

Trial of civilians by military courts has always been a sore point in many jurisdictions, and more so in Pakistan where there has been complete secrecy surrounding these trials.

In cases brought before Constitutional Courts in Pakistan, it has been revealed that almost the same pattern of paperwork has been followed in most trials proving the same to be a sham under law.

Such military courts have come under sharp criticism for being held in secret locations, without a proper appellate process to civil courts, without the sharing of documents of trial and without the assistance of lawyers.

Though the civil society has raised the issue time and again, not much seems to have come out of it.

Wednesday, December 12, 2018

Judicial independence in South Africa's military justice system

The following is an excerpt from the decision of the High Court of South Africa, North Gauteng Division, Pretoria, per J.R. Murphy, J., in Timakwe v. President of Court of Senior Military Judge and Others (69441/11) [2018] ZAGPPHC 246 (19 April 2018) (footnotes omitted):
The constitutionality of Chapter 3 of the MDSMA [Military Discipline Supplementary Measures Act, 1999
30. The applicant seeks several declarations of constitutional validity. He firstly contends that the MDSMA fails to secure an adequate degree of independence for the Adjutant General and military judges (including senior military judges) in that such officers are in the same position of other military officers regarding their terms and conditions of employment including: remuneration, promotion, assessment of performance, discipline, transfer etc. In addition, military judges enjoy inadequate security of tenure. For these reasons, the applicant submits that Chapter 3 of the MDSMA dealing with the appointment of military judges and the Adjutant General is inconsistent with the Constitution and invalid; and the exercise by senior military judges of the jurisdiction conferred by section 9 of the MDSMA to try the applicant for murder and other offences is consequently also unconstitutional and invalid.

31. The applicant misconstrues the role of the Adjutant General. In terms of section 28 of the MDSMA he or she is responsible for the overall management, promotion, facilitation and co-ordination of activities in order to ensure the effective administration of military justice and legal services. The role of the Adjutant General is therefore one of management and administration of the military legal system. The Adjutant General does not perform a judicial function and there is accordingly no requirement for him or her to observe the strictures of judicial independence and impartiality.

32. The requirements of judicial independence vary depending on the nature and function of the particular institution. The respondents maintain that the military courts established in terms of the MDSMA are sufficiently independent for the functions assigned to them. The Minister appoints military judges for a fixed period or specific deployment on the recommendation of the Adjutant General who must be convinced upon due and diligent enquiry that the officer is a fit and proper person of sound character. In terms of section 13(2) of the MDSMA only an appropriately qualified officer holding a degree in law may be assigned to the function of a senior military judge or military judge. Section 14(4) of the MDSMA requires that officers assigned as military judges perform their functions "in a manner which is consistent with properly given policy directives, but which is free from executive or command interference." The Minister, acting on the recommendation of the Adjutant General, may remove a military judge on the grounds of incapacity, incompetence or misconduct.

33. Section 19 of the MDSMA includes a number of provisions aimed at ensuring the independence of military judges. They are required in the exercise of their authority under the MDSMA, inter alia, to: i) be independent and subject only to the Constitution and the law; ii) apply the Constitution and the law impartially and without fear, favour or prejudice; iii) conduct every trial and proceedings in a manner befitting a court of justice; and iv) ensure fairness to an accused by affording appropriate assistance. Moreover, military courts are courts of first instance subject to appeal and review before the CMA and the High Court, which will protect them from undue interference with their independence and supervise the manner in which they discharge their functions. While military judges are assigned for a fixed period or for a specific deployment, section 17 of the MDSMA protects them from arbitrary removal and they remain in establishment posts where they enjoy the ordinary legal protections against unlawful or unfair dismissal. No military commander may remove a military judge from assignment.

34. While it is undoubtedly true that military judges do not enjoy the protection afforded to ordinary judges, the Constitutional Court has recognised that judicial independence can be achieved in a variety of ways and that the most rigorous and elaborate conditions of judicial independence need not be applied to all courts. It is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system. The fact that the Minister and the Adjutant General, members of the Executive, have a strong influence in the appointment of the military judges does not mean that the military courts lack institutional independence. As indicated above, all military judges are required to exercise impartiality and independence in the discharge of their duties and take an oath of office in terms of section 18 of MDSMA requiring them to do so. It is relevant, as intimated earlier, to keep in mind the core protection given to all courts by the Constitution, to the particular function that the military courts perform and to their place in the court hierarchy. The greater the protection given to the higher courts, the greater is the protection enjoyed by the military courts.

35. The provisions of the MDSMA therefore ensure sufficiently that the military courts are independent and the constitutional challenge on that ground is without merit.
Please post a comment (real names only, please) if any information is available as to whether this case has been appealed. 

Another naval tradition bites the dust

First it was flogging, then it was confinement at hard labor, then it was loss of numbers, now it's bread and water. Where will it end?

Details here from Navy Times.

Tuesday, December 11, 2018

The ages of man

During my first ten years in judge advocate work, I thought I knew all the answers, knew exactly what was right in every case. During my second ten years, I developed a few doubts in certain areas. During my third decade of service I discovered that I knew less and less and I had a great many doubts. Now that I have retired and have entered my fourth decade, I have doubts about almost everything.

Major General Kenneth J. Hodson, The Manual for Courts-Martial--1984, 57 Mil. L. Rev. 1 (1972)

Ever heard of "Biribi"?

Nicola Cooper of Northampton University has published Biribi: Disciplining and punishing in the French Empire, 29 French Cult. Stud. 321 (2018). The abstract advises:
This article discusses the infamous Bataillons d’Afrique to which French former criminals were sent to complete their duty of military service. The ‘Bat d’Af’ were created to prevent the young male bourgeoisie from having to mix with these ‘undesirables’ and ‘reprobates’, and they were stationed well away from the mainland in France’s North African colonies. This article discusses themes such as discipline, punishment, torture, homosexuality, interracial power relations, and delinquent ‘cultures’ in this imperial context.
A related article from a decade ago is John Cerullo, The Aernoult-Rousset Affair: Military Justice on Trial in Belle Époque France, 34 Hist. Reflections 4 (Summer 2008).

The heart of the matter: brutality, unfairness in the French military justice system and -- surprise! -- determined resistance to change.

Sunday, December 9, 2018

Lenient sentences in the Australian military

The Daily Mail wrote about Australian military members receiving lenient sentences in sexual misconduct cases. They highlighted one case of an Army officer serving three months incarceration for raping a private with a beer bottle. The paper compared his sentence to three individuals convicted of a similar crime, who received 18 months confinement, suspended after six months.

Are the data points cited by The Daily Mail reflective of a global problem for the military in adjudicating sexual misconduct? Or do they ignore the complexity of individualized sentencing? If the Australian military sentences like the U.S. Army, discharging a Soldier then suspending their confinement is neither authorized nor practical. The military seeks to dismiss convicted sex offenders from its ranks, like that Australian captain, not supervise offenders through an ad-hoc probation system. The difference in served confinement may also reflect a discount for the officer's public service, assuming the teenagers did not present as much mitigating evidence.

The better question is whether three-to-six months confinement is within the proper sentencing range for raping someone by instrument. Both sentences strike me as too low, even for first time offenders. But under punishing sexual offenses is not isolated to the military, as the last few years has made clear. Neither Brock Turner nor Jeffrey Epstein wore uniforms when committing their crimes.

Perhaps the answer to disparate sentencing in the military is to adopt formal guidelines, like the U.S. federal system. The most recent change to the UCMJ, effective at the start of 2019, passed on such a system. Not only could such uniformity in sentencing ensure a more equal system, it would also bolster public confidence by countering, at least a little, the perception that military offenders are escaping punishments their civilian counterparts are not.

Saturday, December 8, 2018

Finland: no jail for conscientious objectors

Conscientious objectors to mandatory civilian or military service cannot be jailed for avoiding such service, according to a recent Finnish court decision. To do so would unfairly discriminate such objectors from Jehovah's Witnesses, who are already exempt from mandatory service.

The ruling was made by the civilian Helsinki Appeal Court. International human rights law strongly disfavors military trials of conscientious objectors.

Thursday, December 6, 2018

New from the Geneva Centre

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) has published Understanding Military Justice: A Practice Note (2018) by Mindia Vashakmadze. This excellent Practice Note is a product of the Security Sector Reform Working Group of the Partnership for Peace Consortium. The following excerpt explains the purpose:
Legislating for the security sector is a complex and difficult task. For this reason, many lawmakers are tempted to copy legislation from other countries. This expedites the drafting process, especially when texts are available in the language of the lawmaker. However, it frequently results in poor legislation. Even after being amended, the copied laws are often out of date before coming into effect. They may no longer be in line with international standards, and may not fully respond to the requirements of local context or legal order. 
In Eastern and Central Europe, as well as the countries of the Former Soviet Union (FSU), the public debate on the security sector has been ongoing since the fall of the Berlin Wall. However, in many states within this region, the creation of a sound legal framework for the effective operation of security sector agencies, including justice institutions, remains a challenge. It is crucial to ensure that such a legal framework is based on international legal standards, as well as lessons learned from comparative experience. 
The motivation for this Practice Note came from practitioners involved in reform processes across the region who seek guiding principles and comparative analyses of legal models in various areas, including the judiciary. There is growing support within domestic legal systems of these countries for increased judicial accountability of the armed forces (and other security sector agencies). Military justice is an important tool to ensure such accountability.

This practice note is primarily addressed to those who intend to draft new military justice legislation or amend existing laws. This includes parliamentarians, civil servants, legal experts and nongovernmental organisations. The note may also be helpful for security officials. Additionally, it may serve as a reference tool for researchers and students interested in security sector legislation. 
The analysis here in is largely based on international standards and comparative experience and provides easy access to international norms as well as examples of legislation from the region and beyond.

Wednesday, December 5, 2018

DCAF suggestions for Ukraine

Because Ukraine is considering reintroducing military courts, the Geneva Centre for the Democratic Control of Armed Forces has issued a 2018 "guidance note" on Military Justice in Ukraine by Mindia Vashakmadze. You can find it here.

A puzzling claim

The South African National Defence Force has recently conducted a court-martial of 16 members in connection with an assault on a Congolese national. What's puzzling is this part of the iAfrica account:
The trial has been views as historic and ground-breaking trial because this is the first time, the Prevention of Combating and Torture of Persons Act has been used to charge 16 of its members.

They were deployed in the Democratic Republic of the Congo (DRC) as part of the Force Intervention Brigade (FIB) of Operation Mistral.

The SANDF said although they were not convicted in terms of the act, the case paved the way for the use of the act in the future.
How's that again?
“Of the original 16 accused, 11 were convicted. Five of the accused were acquitted. Even though no accused were convicted of contravening the provisions of the Prevention of Combating and Torture of Persons Act, they were found guilty of common law assault. This case cleared the way for the future application of the act,” [SANDF spokesperson Brigadier General Mafi Mgobozi] added.
How so? Were the accuseds acquitted of charges laid under the torture act? If so, how does that "clear the way"?

Tuesday, December 4, 2018

On to Parliament?

Lt Gen (Ret) D.S. Hooda of the Indian Army writes here that the country's Parliament needs to step in now that the Supreme Court has determined that civilian justice has a role to play despite the Armed Forces (Special Powers) Act. Excerpt:
The military justice system is meant to preserve efficiency, good order and morale, and it has effectively ensured high standards of discipline in the Indian Army. The faith of soldiers in the military justice system remains strong because there is confidence that those dispensing justice have a clear understanding of the Army’s way of life. If this faith is eroded by diluting the provisions of the Army’s courts of inquiries and dragging Army personnel to criminal courts, it will adversely affect how the Army operates. It is likely that counter-terror operations will be characterised by caution and a play safe attitude.

Apprehensions of the Army are genuine, but this is a battle that cannot be won in the civil courts. We should be clear that there will always be a narrow interpretation of the law in allegations of human rights violations. It is the responsibility of the government to step in with legislation that ensures protection to the soldier from undue harassment. The Supreme Court correctly pointed out to the Solicitor General, “who has stopped you from coming out with a mechanism? Why does it require our intervention? These are issues which you have to discuss, not the courts.”

This is perhaps a good time to review the AFSPA. This act has long been criticised by civil society groups as being draconian, but an amendment to the act was strongly opposed by the Army on the grounds that it is an enabling act that provides the required protection to soldiers operating in disturbed areas. This may no longer be true.
By the way, is Parliament taking steps to overhaul the military justice system, which is seriously out of date (think: pre-Findlay)? 

Monday, December 3, 2018

Mark your calendar

The U.S. Court of Appeals for the District of Columbia Circuit today entered an order setting down for hearing two cases arising from a military commission being tried at Guantanamo Bay, Cuba. In re Al-Nashiri and In re Spears & Eliades will be heard on January 22, 2019 before Judges Judith W. Rogers, David S. Tatel and Thomas B. Griffith. Al-Nashiri concerns a military judge's participation while he was negotiating for a job with the Department of Justice as an immigration judge. Spears & Eliades concerns whether two defense attorneys were justified in withdrawing.

Full disclosure: the editor is one of the counsel for the Ethics Bureau at Yale (EBaY), which filed a brief as amicus curiae in al-Nashiri.

Criminal justice system and military discipline; a world apart!

December 3, 2018.  An Opinion Piece penned by Michel W. Drapeau titled "Plague of sexual misconduct in military can't be solved internally"  is published in Lawyer's Daily.  Here is the essence of the opinion:

For the past two decades, the military has received several public warnings about the deep-seated crisis of rampant sexual misconduct in its ranks.  Astonishinglyin response to this crisis affecting both the safety and integrity of soldiers, sailors and aviators as well as the reputation of the institution, in 1998 Cabinet transferred the investigation and prosecution of sexual assaults to the military to “enable the military to deal with the incidents swiftly for the sake of unit cohesion.”  In plain language this meant that ‘unit cohesion’ – an euphemism for military control – was to take precedence over the safety, integrity and dignity of soldiers. 

Last week the Auditor General weighed in with a report aimed at determining whether the military actually have taken adequate measures to cope with the issue of sexual misconduct including the provision of support to victims of sexual misconduct. The AG report is anything but satisfying. The AG concluded that the military has not always dealt with the reported incidents in a timely, consistent and respectful manner. As a result, some victims chose not to report an incident or withdraw their complaint because they were not convinced that the investigations would lead to concrete results. The AG report is a clear signal that the military simply cannot solve this twenty years’ crisis on their own. 

Parliament must now assume leadership to both provide military members with a safe workplace allowing them to maintain their physical and mental integrity and to preserve the character and reputation of the armed forces as a disciplined, professional force.  As a matter of priority, legislative changes must be made to ensure that victims of crimes be immediately entitled to the same protection afforded to every other individual in Canada under the Canadian Victims Bill of Rights. Secondly, the National Defence Act must be amended to return jurisdiction for sexual assaults to civil courts

Herein a few words on not getting the memo

Ed Brayton, writing here for his Dispatches from the Culture Wars blog, reports:
Sean Hannity, who is as clueless as he is obsequious, had a caller to his radio show who suggested that Trump should use military tribunals to investigate the Department of Justice. He agreed with him and said it was within Trump’s power to do so. Pro-tip: It isn’t.

CALLER: I haven’t heard an idea that I have, and I don’t know if it’s feasible or not. With the corruption in the Department of Justice, the people that are demanded to appear, they don’t appear, they appear, they lie, everything that’s going on with all the corruption — what about — does President [Donald J.] Trump have the authority to do — have the JAG in the military do a tribunal, and investigate the Department of Justice that way? Where Congress —

SEAN HANNITY (HOST): He actually does have that authority. 
CALLER: — apparently cannot do its job.

HANNITY: Well, it’s the — again, that would be within the realm of the executive branch of the government, which he is the head of.

[Brayton:] No, no, no. The only time military tribunals can be used for civilians — and even this is highly questionable — is when they are accused of war crimes or participated in a military action against the United States. They cannot be used for civilians under any other circumstances. The Supreme Court ruled this in 1866.* I wonder, is there any exercise of power that Trump could undertake that Hannity wouldn’t be a cheerleader for?
* Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). [Footnote added.] 

Sunday, December 2, 2018

For your military justice bookshelf

LexisNexis/Matthew Bender has just published Military Court Rules of the United States: Procedure, Citation, Professional Responsibility, Civility, and Judicial Conduct (4th ed. 2018), by Global Military Justice Reform contributor Franklin D. Rosenblatt and editor Eugene R. Fidell. The massive compendium, issued under the aegis of the National Institute of Military Justice, brings together the surprisingly numerous and diverse current rules for trial and appellate proceedings before both courts-martial and military commissions, with topical introductions by a roster of expert commentators. A must if you practice in any of the covered jurisdictions. Staff judge advocates, convening authorities, judges, and court staff will also find it handy.

AFSPA and civilian jurisdiction in India

The Supreme Court of India has rejected a challenge by Army officers to civilian proceedings against them arising out of alleged fake encounters. The officers had sought to interpose the Armed Forces (Special Powers) Act. The court was having none of it, judging by this account:
The top court had in a ruling on July 8, 2016, ruled that the mere fact that the law was in force in a disturbed area would not give blanket immunity to the forces from any unjustified deaths.

But in this case, the court drew the line at unjustified deaths, implying that personnel would be answerable for any disproportionate force used by them in the disturbed areas. In the first instance, the central government urged the top court to review the ruling. But the court stuck to its stand.

Saturday, December 1, 2018

Mass justice in Nepal

A Nepalese court-martial has announced its verdict in a trial involving a whopping 173 members of the Army, according to this report in The Himalayan.

Any bets on whether each accused was separately represented?

Conscientious objectors being released in South Korea

South Korea has begun to release its many imprisoned conscientious objectors, following a decision of the Supreme Court. The Washington Post has the details here.

A credulous column from Pakistan

"The rationale behind the institution of military courts is that these are efficient in handing out convictions." So writes Mohammad Jamil, in this credulous column in the Pakistan Observer. The column never addresses the fact that the country has, in nearly four years, taken no steps to remedy what are said to have been flaws in the civilian courts that were claimed to give it no alternative but to turn to military for the trial of civilians. He claims that "Military Courts are not something unique to Pakistan, as all states use such legal framework in emergencies." That is simply not true, and those that do use military courts to prosecute civilians are violating human rights requirements. See, e.g., Cameroon, Uganda, Egypt, Venezuela.

Military justice slows to a halt in Canada

Stuart Peddle writes in the Halifax Chronicle-Herald about the current freeze-up in Canada's military justice system. The Supreme Court will hear the government's stay application on January 14, 2019 and has set March 26, 2019 as the hearing date on the merits of the pending appeal from a decision of the Court Martial Appeal Court. "Further complicating matters is the chief military judge, Col. Mario Dutil, is facing charges himself, stemming from allegations he entered a consensual relationship with a subordinate. Dutil is one of only four military judges hearing cases, leaving the system down to three."

A conscientious decision from ROK's Supreme Court

New York Times reports a consequential decision for conscientious objectors in the Republic of Korea.
Fifty-eight young men who had been imprisoned for refusing to serve in South Korea’s military were released from prisons across the country on Friday, after a landmark court ruling that supported the rights of conscientious objectors.
The ruling by South Korea’s Supreme Court on Nov. 1 acquitted a conscientious objector for the first time in the country’s history. The court recognized “conscience or religious beliefs” as a justifiable reason to refuse to serve in the military.
For decades, South Korea has required all able-bodied men in South Korea to serve a minimum of 21 months in the armed forces under a conscription system seen as crucial to the country’s defense against North Korea. The punishment of those who cited their religious beliefs in refusing to serve has been both uniform and harsh.
Guided by the Nov. 1 ruling, lower courts are expected to dismiss cases against 930 men, most of them Jehovah’s Witnesses, who are currently on trial for refusing to do mandatory service in the armed forces if they are determined to be conscientious objectors.
The article notes that the decision does not appear retroactive for those whose appeals were exhausted prior to 1 November.  The U.S. military is having a similar situation, concerning the retroactivity of some consequential CAAF decisions, from appellant's whose appeal was complete.  They have been asking for a new decision based on two important cases: United States v. Hills, and United States v. Mangahas.   Some prisoners are trying for habeas corpus relief in federal court but don't seem to be succeeding.

Friday, November 30, 2018

New Canadian website of interest

Global Military Justice Reform contributor Tim Dunne has created a new website, Canadian Observatory for Military Justice Reform. From the site:
Canada’s military justice system operates outside the purview of many Canadians, whose taxes fund its operations, as well as those of the Department of National Defence (DND) and the Canadian Armed Forces (CAF). The Canadian military’s justice system operates separately from and independently of the Canadian civilian justice system and, as a consequence, is largely invisible to the general Canadian public.

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is an English case that dealt with the impartiality and recusal of judges. It is the root of the principle that the mere appearance of bias is sufficient to overturn a judicial decision and led to the aphorism “Not only must Justice be done; it must also be seen to be done.”

To many, both military and civilian, entering a court martial is like entering a different world. Courts martial have their own rules and are administered, adjudicated, attended and argued by military personnel in uniform. Members of the public are normally welcome to attend courts martial and interested members of the community should make an effort to do so to ensure that justice is, indeed, seen to be done.

This website is dedicated to opening the doors and drawing back the drapes on Canada’s military justice system, to contributing to an increased public awareness of this system, and to promoting a public discussion and dialogue.
 Congratulations to Tim. We look forward to using and learning from the new, user-friendly site, which is still being populated but already includes many useful links.

Why is this case in a military court?

A German freelance journalist has been charged in a Venezuelan military court with rebellion, violating security zones and espionage. Details here.

Human rights standards strongly disfavor the trial of civilians by military courts.

To read or not to read

I don't know if Hit and Run by Nicky Hagar is on the Worth-the-Read list.  The book appears to stem from and be about the Operation Burnham inquiry--as reported by Andrea Vance
Hit and Run author Nicky Hager has launched a stinging attack on the Defence Force for a "petty" approach to an inquiry into controversial SAS raids.
Hager says Defence Force staff believe the investigation is about clearing their name - and protecting the organisation's reputation rather than the deaths of six Afghan civilians in 2010.
The book detailed a raid by the New Zealand Special Air Service (SAS) soldiers in August 2010 in Tirgiran Valley. The authors said six civilians – including a three-year-old girl – were killed and 15 injured, and the events later covered up by the military.
Which generated an inquiry by Attorney-General--the Operation Burnham Inquiry.  The various articles referenced by Ms. Vance seem to address "a street protest of graffiti, banners, and billboards that claimed the Defence Force "tells lies" and "covered up war crimes"." 

Here is a link to the Inquiries home page.

Thursday, November 29, 2018

A massacre in Guatemala

Familiares de las víctimas de la masacre de Dos Erres, en Petén, Guatemala, escribieron "justicia" con pétalos de flores a la entrada de la Corte Suprema de Justicia durante el juicio por el caso el 2 de agosto de 2011.In 2010 Santos Lopez Alonzo was arrested in the US on immigration violations and held as a material witness in the US prosecution of a fellow former Guatemalan soldier. On August 10, 2016 he was deported to Guatemala after a federal court refused his plea to stay because he feared for his life.  He feared for his life, he said, because he gave testimony to a grand jury in the US.

Lopez formed part of an elite US-backed special patrol of the Guatemalan Army known as the "Kaibiles" who carried out special operations and intelligence.  He was one of four soldiers suspected of having participated in a massacre and who ended up in the US living in Florida, Texas and California until they were arrested.

On November 27, 2018, Lopez, now 66, was sentenced by a Guatemalan court to 5,160 years in prison for having participated in one of the worst massacres in Guatemalan history, in a village known as "Las Dos Erres," in the north of Guatemala, during December 6-8, 1982.  He was convicted of the killing of 171 persons and crimes against humanity against 201 victims, and received 30 years in prison for each of the persons killed and an additional 30 for the crimes against humanity.  The numbers are symbolic because the maximum sentence permitted under Guatemalan law is 50 years.

An independent truth commission held the Guatemalan Army responsible for most of the deaths in the 36 year civil war that resulted in 200,000 deaths.

Tuesday, November 27, 2018

Les misérables!

November 26, 2018 an article published by Cameroon media reveals the latest travails of a military tribunal. The facts are quite simple. Chimène Ngwenn is accused of failing to honour the national flag during a sunset ceremony by the Balamba constabulary in March 2018. At the time Ngween was sitting inside an adjoining bistro and did not stand up to show respect to the flag. On account of the loud music, she claimed not having heard the whistle sound made by a constable. She was promptly arrested and wes firmly walked over to the police station by a police officer. 

In attendance, her husband, Angelo Omologa, intervened to free her and send her home. Days passed, and suddenly the husband was charged with “rebellion”. 

Angelo was detained for close to a week.

After hearing from both Chimène and her sister Georgette who witnessed her arrest, at trial the military judge pronounced a non-guilty verdict for Chimène. Angelo was not so fortunate; he was found guilty of 'rebellion".  He will be sentenced later.

Friday, November 23, 2018

A major ruling in Uganda

On November 8, 2018, the Court of Appeal of Uganda handed down the unanimous decision in Ogwang v. Uganda, Crim. App. No. 107 of 2013 [2018] UGCA 82 (Uganda Ct. App. 2018). The accused, an Army junior officer, had been convicted in 2010 by a court-martial of murder and robbery as service offenses (i.e., offenses under civilian law that may be tried in a military court). The Court of Appeal overturned the 2013 judgment of the Court Martial Appeal Court on the ground that one of the members of the court-martial panel had participated in the investigation and the accused's arrest, and had been replaced by another member in mid-trial. The Court of Appeal indicated that it would ordinarily have sent the matter back for retrial before a court-martial, but instead referred it for civilian prosecution on the ground that the court-martial lacks independence. According to the decision:
37. . . . The judges of an independent court cannot be under the administrative control of the authority that brings the charges. In order to secure the independence of the courts the courts are placed under a different arm of the state known as the Judiciary with security of tenure and insulation from control of the Executive which originates criminal charges with the exception of private prosecutions which are brought by private individuals.

38. Military Courts, appointed by the High Command, are basically organs of the Army intended to ensure operational efficiency and discipline of officers and militants of the Uganda Peoples Defence Forces. That is the purpose and thrust of military justice. For that reason service offences are created under the Uganda Peoples Defence Forces Act under Part VI of the Act over which Military Courts exercise jurisdiction.
The court held that the effect is to profoundly (and unconstitutionally) transform courts-martial from courts of limited jurisdiction to courts of general jurisdiction. "The military courts are not independent of the Executive. They belong to the Executive." The court also pointed out that the absence of any guidance as to which court system -- military or civilian -- would try civil offenses asto which there is concurrent jurisdiction impermissibly opens the door to arbitrary decision making.

The decision, which is subject to further appellate review, is pertinent to court-martial subject matter jurisdiction issues that are currently pending in Canada.

Thursday, November 22, 2018

Recusal watch: Uganda

Should the chairman of the Uganda general court-martial recuse in a current case involving treason charges against a former Member of Parliament? Consider this report from New Vision. Excerpt:
An irked [Lt Gen Andrew] Gutti queried the rationale of [Tonny Nsubuga] Kipoi's submission, yet from the onset of the trial, he (Kipoi) never expressed reservations about the seven member panel.

When [defence counsel retired Maj. Ronald] Idduli conveyed Kipoi's misgivings, Gutti blasted him and threatened to arrest him, saying he was "retired and tired" to the extent that he no longer remembers the law and the court procedures.

"So you are asking the President to appoint another chairperson to try your client? This is crazy," said Gutti.

Idduli was compelled to sit down, in a show of respect to his senior in the military.

He however said that he was not being disrespectful, but only querying procedural impropriety.

Gutti however shot back and mocked him, saying for a number of times, Idduli had petitioned the High Court and the Constitutional Court, challenging Kipoi's trial in the Court Martial unsuccessfully.
Comments welcome (real names only, please). 

Where should these cases have been tried?

The International Commission of Jurists has issued a briefing paper that is critical of the Nepal Army's effort to persuade the country's Supreme Court that charges of human rights violations were properly tried in courts-martial. According to the ICJ's press statement:
“The Nepal Army has sought to overturn the convictions of Maina’s killers by putting forth specious legal arguments that do not hold up under Nepali or international law, or in light of the past decisions of the Supreme Court,” said Frederick Rawski, ICJ Asia Pacific Director.

In the legal briefing, the ICJ sets out (i) Nepal’s obligations under international law and the Nepal Supreme Court’s jurisprudence to investigate and prosecute perpetrators of human rights violations; (ii) the impropriety of jurisdiction by a military court-martial in cases of serious human rights violations; and (iii) refutes the argument that the convictions violated principles of ‘double jeopardy’.

The briefing sets out international law and jurisprudence establishing the Government’s duty to prosecute serious human rights violations as distinct and separate from its obligation to establish the truth, including as part of a transitional justice process.

The briefing comes at a moment when the future of justice for conflict era crimes and human rights violations in Nepal is uncertain.

In July, a draft bill amending the existing legislative framework governing the transitional justice process was criticized by civil society, victim groups and human rights organizations – including in a joint analysis by the ICJ, Amnesty International and Trial International.

While a government panel elicited comments at consultations with victims and civil society, the government never produced a revised draft or conducted follow-up.

“How can the people of Nepal, and particularly conflict victims, have faith in government proposals to press forward on transitional justice when the Nepal Army continues to fight even minimal accountability with disingenuous legal arguments, such as in the case of Maina Sunuwar?” said Rawski.

“The foundation for any process moving forward must be the best interests of victims, a commitment to accountability, and respect for international human rights obligations. This has been affirmed many times over by the Supreme Court,” he added.
The full ICJ briefing paper can be found here

Happy Thanksgiving

Tuesday, November 20, 2018

Movie Review: "A War"

In the fog of war in Helmand Province, Afghanistan, Danish commander Captain Claus Pedersen must choose between saving one of his men or a group of Afghan civilians. He saves his soldier. He then faces a criminal trial back in Denmark alleging that he violated the international humanitarian law principle of distinction by directing his soldiers to fire into a village without positively identifying the enemy.

So goes "A War," a 2015 Danish movie by Tobias Lindholm starring Pilou Asbaek (who will be familiar to "Game of Thrones" fans) as Captain Pedersen.

This reviewer enjoyed a special screening above the GMJR newsroom. The pace was uneven but the authenticity drew me in, with real Danish soldiers, Afghan refugees, and Danish judges playing most of the supporting roles.

The criminal trial was especially fun to watch. Two Danish judge advocates were involved in the investigation stage in Afghanistan before passing the baton to civilian court officials back home in Denmark. Before trial, the defense attorney advised his client that "ethics is not my strong suit" when goading him to untruthfully testify that he had positively identified the enemy in the village in order to secure an acquittal. The prosecutor impressively presented her case. There are a couple interesting twists with witness testimony from soldiers who were on the ground with Captain Pedersen.

Without spoiling the ending, the result of trial will come as no surprise to those familiar with the normal trajectory of domestic trials of war crimes.

Much like "The Deer Hunter," this is a war movie with no obvious heroes, but the humans involved are all too human.

"A War" ("Krigen" in Danish) is available online for free for U.S. Netflix subscribers. Watch the trailer here

Sexual offenses in New Zealand

According to this Stuff report, the New Zealand government is considering barring defense counsel from cross-examining complaints in sex cases. A current controversy has arisen over whether the government should be seeking NZ$200,000 in costs in a sexual harassment case that was thrown out because it was time-barred.

Saturday, November 17, 2018

Summary trials

The English version of the Barreau du Québec's submission to the House of Commons with respect to Bill C-77 is now available here. Excerpt:
2.6.1 Independence of the decision maker

The bill does not change the fact that it is the commanding officers who determine whether soldiers have committed a service infraction and who impose a sanction, where necessary. It is easy to understand that because of their duty to prevent and punish any misconduct among their troops, particularly any violation of international humanitarian law in the theater of operations abroad,the power to maintain discipline, ultimately through military justice, is closely related to the Command position.

By removing some penal aspects from the current system, the bill reduces the need for an
independent decision maker within the meaning of paragraph 11d) of the Canadian Charter of Rights and Freedoms. That said, compared to the regime applicable to police officers, particularly in terms of ethics, military decision makers are less independent.

The Barreau du Québec therefore suggests the adoption of counterbalancing measures to ensure that commanding officers carry out their tasks as impartially as possible, but without requiring total independence that would undermine the efficiency of the commanding officers in their roles as custodians of discipline among the troops.
(Footnote omitted.)

Slow justice

Time seems to pass slowly in India. We read here of Sood v. Union of India, a decision of the Armed Forces Tribunal holding that unless a court-martial sentence of dismissal directs forfeiture of pension rights, the accused retains his pension (and those rights cannot be denied selectively). But consider this: the court-martial in question occurred in 1999.

Friday, November 16, 2018

Sham proceedings

Reema Omer of the International Commission of Jurists has written this disturbing summary for The Statesman concerning the October decision of the Peshawar High Court overturning the military court convictions of  more than 70 civilians. The decision itself, which has been stayed by the Supreme Court of Pakistan, is not yet available on the High Court's website. Excerpt from Ms. Omer's analysis:
[T]he court questioned the competence of the defence counsel of the accused. Under the Army Act, accused persons have the right to engage private civilian defence counsel at their expense. The court found it odd that only one lawyer from Punjab was engaged by all accused persons. And even though families of a number of convicts had engaged “costly and senior counsel” to challenge their convictions in review before the high court, during their trials they had allegedly “consented” to be represented by the same defence counsel with only five or six years’ experience.

It also expressed concern that it was not clear in what language the counsel communicated with the accused, and whether they were allowed to consult with him confidentially.

It characterised the defence counsel as a “dummy”, and held that the trials were a “complete prosecution show”, where the accused were “denied of their legal and fundamental right” to engage counsels of their choice and present a defence.
On facts like these, it is not hard to see why the High Court took the action it did. 

Wednesday, November 14, 2018

Congolese military justice and the 2018 Nobel Peace Prize

The 2018 Nobel Peace Prize award to Dr. Denis Mukwege (DR Congo) and Nadia Murad (Iraq) brings the entire world’s attention to sexual violence in armed conflict.  Prof. Helen Durham brilliantly sums up the development of international mechanisms for holding perpetrators accountable in her October 11, 2018 ICRC Humanitarian Law and Policy blog post.

Therein, she aptly notes that “..whilst the impact of the jurisprudence of international courts and tribunals on this issue has been significant, domestic systems are critical to any discussion of accountability, and States must ensure that it is possible to investigate, prosecute and punish wartime sexual violence under their domestic law.”  (Emphasis in original, footnote omitted.)

In this regard, Dr. Mukwege recently praised the strides made by the Congolese military justice system.  See “Lutte contre les violences sexuelles: Dr Mukwege félicite la justice militaire”, Radio Okapi, 5 September 2018.

Only in February 2016, nearly 14 years after its ratification by the DR Congo in April 2002, was the Rome Statute domesticated by amendments to the Congolese Penal Code.  However, domestic prosecution of these most grievous of crimes was not delayed, thanks to the bold initiative of Congolese military magistrates to apply the Rome Statute directly in courts-martial via the DR Congo Constitution’s supremacy clause.  By prosecuting and obtaining convictions in Congolese courts on charges brought directly under the Rome Statute’s substantive provisions, Congolese military magistrates actuated the principle of ICC complementarity to domestic systems, and have spawned a body of domestic Congolese jurisprudence. 

The development of this law is thematically chronicled by Professor Jacques B. Mbokani of the University of Goma, in his study Congolese Jurisprudence under International Criminal Law: An Analysis of Congolese Military Court Decisions Applying the Rome Statute (Johannesburg: Open Society Initiative for Southern Africa, and African Minds, 2016 (French original) and 2017 (English translation)), and his recent follow-on La Jurisprudence congolaise relative aux Crimes de Droit international 2016-2018 (Kinshasa: Club des amis du droit du Congo, 2018 (discussing cases brought since domestication of the Rome Statute)).

A testament to Congolese military justice’s international leadership in actuating ICC complementarity by domestically implementing International Criminal Law, including the repression of sexual violence in armed conflict, is the fact that one of its senior magistrates was selected as the inaugural Chief Prosecutor for the Special Criminal Court for the Central African Republic.

In the mixed post- and ongoing conflict environment of the DRC, military justice is crucial to the Congolese justice sector writ-large.  The lion’s share of overall criminal jurisdiction lies in military courts: they have unique personal jurisdiction over not only the armed forces, but also over all “forces of order” including the police; as well as subject matter jurisdiction over any crime committed with a “weapon of war”, meaning any firearm.  Only since 2013 has legislation been adopted to begin sharing jurisdiction over Rome Statute-defined crimes with civilian courts, and the civilian criminal justice sector looks to the military for guidance, training and precedent in exercising its newly acquired concurrent jurisdiction.

Though the gains realized by Congolese military justice these past 10+ years have been great, continued support from the international community remains critical as the Congolese continue to build a foundation for their criminal justice system throughout the vast territory of the DRC, in order to ensure enduring accountability for the most grievous of crimes, including wartime sexual violence.

David A. Buzard, Esq.
Norfolk Virginia | Kinshasa DR Congo

New contributor

Global Military Justice Reform is delighted to welcome its newest contributor, David A. Buzard. Watch for his posts!

Tuesday, November 13, 2018

Bots R Us

It's Bot City this morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza: 135 hits from Malaysia in the last two hours.

Beaudry fallout

The government has asked the Supreme Court of Canada to stay the recent decision of the Court Martial Appeal Court in the Beaudry case. The motion remains under consideration, but in the meantime charges in two cases have been withdrawn from the court-martial without prejudice. David Pugliese reports on the matter here for the Ottawa Citizen. No word on the other 38 cases that the government says could be affected by Beaudry.

The charge in one of the two dropped cases dates to 1999.

Old misattributions die hard

He didn't say it.
Writing in Brighter Kashmir, Nilesh Kunwar observes:
Military courts were created in Pakistan after the Peshawar Army Public School (APS) terror attack for speedy trail of terror suspects. Since January 2015, these courts have convicted 346 people, awarding death sentence to 196 and imprisonment to 150 persons. Only one person has been acquitted. An ironical twist clearly reveals the motivated approach of military courts. With no other evidence except [Kulbhushan] Jadhav’s confession, a Pakistani military court took only 14 months to sentence him to death. But Jamaatul Ahrar and (JuA) and Tehrik-e-Taliban Pakistan (TTP) spokesperson Ehsanullah Ehsan who has already accepted responsibility for numerous terror strikes including the Peshawar APS attack that killed 144 students and has been in Pakistan army’s custody since April 2017, hasn’t even been charge-sheeted as yet! 
After seeing the slipshod way in which military courts are functioning in Pakistan, even the most die-hard Pakistan army fans will start agreeing with Groucho Marx’s view* that “Military justice is to justice what military music is to music!”
* Nope. It was Georges Clémenceau. The author must have missed this 2015 post. (Footnote added.)

Russian military court reorganization

Russian President Vladimir Putin has approved legislation that reorganizes and renames the country's military courts. The Russian Legal Information Agency has the story here. The legislation was enacted in order to comply with an earlier constitutional law.

Sunday, November 11, 2018

Remilitarization and military justice

Professors Andrew G. Reiter (Mt. Holyoke) and Brett J. Kyle (University of Nebraska--Omaha) have a timely and important essay on the Jacobin website titled Latin America's Re-Militarization. They conclude:
To stem the tide of legal empowerment of the military and reverse these recent setbacks, human rights activists will need to be increasingly vigilant and work to supplant the security narrative that has dominated recent elections in countries such as Guatemala and Honduras, and led to the rise of populist leaders on the right. A wave of leftist politicians rose to power in the past by promising redistribution of wealth and anti-poverty plans — the policies necessary to address the underlying causes of the recent rise in crime. The recent election of Andrés Manuel López Obrador in Mexico, who ran on an “Abrazos, no balazos” (hugs, not gunfire) platform perhaps is a welcome sign.

Most importantly, this will be a major test for the civilian judiciary in the region. Judicial reform has been at the forefront of domestic NGO work and international donors over the past three decades. It will largely be for naught if civilian courts cannot retain jurisdiction over the worst human rights abuses committed by the armed forces.

Constitutional and supreme courts will have to rule on these laws, possibly being put in the position of having to make judgments that go against the wishes of politicians, the military, and even popular opinion. Success will also depend on the Inter-American Court continuing to be the last safeguard for democracy in the region, providing domestic courts with legal rulings to reinforce their positions.

Friday, November 9, 2018

Reinstate military courts in Estonia?

A former commander of the Estonian Defence Forces has proposed that the country reinstate military courts and have dedicated lawyers working in the Office of the Prosecutor General. The context of the proposal is described here. Former defence ministers are split. The Justice Ministry is opposed:
The ministry commented that introducing a special court for the military would not make sense at this point in time.

Deputy secretary-general for legal policy, Kai Härmand told ERR that a step-by-step specialisation of judges is already happening anyway. "We have judges who specialise in juvenile crime, or in intellectual property matters. We've approached military issues the same way. What matters here isn't to have a separate institution, but that we have people who get the necessary training, but at the same time are entirely regular judges," Härmand said.

"A judge doesn't need to be a medical doctor to decide in cases concerning the quality of drugs. Knowledge of these specific areas can be gained where needed by including specialists and experts," Härmand added.
Whether or not the proposal gains traction, it raises some basic issues and bears watching. 

Thursday, November 8, 2018

What does U.S. militarization of the border mean?

U.S. Army soldiers from Ft. Riley, Kansas string razor wire near the port of entry at the U.S.-Mexico border in Donna, TexasIn February 2018, former Brazilian President Michel Temer, gave command over law enforcement in violence wracked Rio de Janeiro to Army General Braga Netto, Commander of the Eastern Military division in Brazil, which includes Rio.  This was the first time since the end of the military dictatorship and the since the promulgation of the 1988 Constitution that such a federal intervention into law enforcement was triggered in Brazil.

In October 2018, US President Donald Trump, threatened to send the US military to close down the southern border if Mexico failed to halt the caravan of migrants fleeing violence in their countries (Honduras, El Salvador and Guatemala) and who the US President says are threatening to "invade" the US.  Between 2014 and 2016, the NGO Casa Alianza reported that approximately 2,300 people under the age of 23 were killed by violence in Honduras.  That figure has increased by 53% since Juan Orlando Hernandez became President.

In April 2018, President Trump announced that we would be "guarding our border with the military" until Congressional support for the building of a wall could be secured.  At that time members of the National Guard were deployed under state authority.  President Trump has now ordered active-duty military forces (Title 10 forces) to the US-Mexican border. Just Security has analyzed what sort of support the military can provide.  Unlike Title 32 members of the National Guard, Title 10 forces (active-duty military) under federal authority, are prohibited from taking a direct role in law enforcement activities by the Posse Comitatus Act of 1878.

The military border mission, named Operation Faithful Patriot, only authorizes indirect military assistance to law enforcement. Any force or physical violence or use of weapons is prohibited.

Tuesday, November 6, 2018

Military justice reform in the next Congress

Americans went to the polls today. (Some states are still at it.) Not to predict the outcome -- we'll know it in a few hours -- but if the House of Representatives changes hands, there will be new leadership in the body's committees, including the Committee on Armed Services. Might this lead to serious House consideration of legislation along the lines of Senator Kirsten Gillibrand's Military Justice Improvement Act?