Monday, April 30, 2018

Senate of Canada testimony on sexual assaults

Earlier today, Colonel Michel Drapeau testified before the National Security and Defence Committee of the Senate of Canada on the issue of sexual assaults in Defence and Security organizations.Colonel Drapeau tabled a 6,000 words paper titled "Sexual Assaults in the Canadian Military. Is the Military Making Headway?"

The paper is accessible on the site.: http://mdlo.ca/…/the-senate-of-canada-examines-sexual-hara…/

Sexual assault data -- what gives?

Can it be that reported sexual assaults are up but prosecutions down? So it seems, according to the Defense Department's FY17 reportDan Lamothe writes here in the Washington Post. Excerpt:
[T]he percentage of cases that the U.S. military prosecuted criminally declined. In fiscal 2013, the Pentagon reported that 71 percent of cases resulted in criminal charges being referred to courts-martial. That number fell to 64 percent in fiscal 2014 and 2015, dropped to 59 percent in 2016 and declined to 54 percent last year.

Nate Galbreath, deputy director of the Pentagon’s Office for the Prevention of Sexual Abuse and Response, said Monday that there is “no right number” when it comes to sexual assault prosecutions. The Pentagon setting one, he said, would raise the possibility of unlawful command influence, a legal term in military justice in which senior officials compromise the fair prosecution of cases by getting involved.
He's right: settling on a "right" number would indeed make unlawful command influence lights and buzzers go off. Two possible explanations for the apparent decline in prosecutions come to mind. First, perhaps the in terrorem effect of past Senate actions against selected convening authorities who took the "any reason or no reason" clause of the Manual for Courts-Martial literally -- think "unlawful congressional influence" -- has burned off with the passage of time. Second, perhaps convening authorities, staff judge advocates and chiefs of justice have noticed an uptick in the rate of acquittals -- suggesting that non-meritorious cases were being uncritically referred for trial.

Comments are invited (real names only, please).

Postscripts. (1) There's a third explanation, according to this piece by Jeff Schogol in Task & Purpose: more sexual assault cases are being disposed of through administrative action (meaning nonjudicial punishment) and administrative separation. See Fig. Q from App. C, p. 28.

(2) According to another chart in Appendix C to the FY17 report (Fig. J, at p. 16), 14% of victims of sexual assault declined to participate in the military justice process. With the exception of FY10, when the declination rate was 17%, the FY17 rate was the highest in the last nine years.

(3) The FY17 court-martial acquittal rate in "penetrating crimes" was 34%. It was 22% in other ("sexual contact") sexual assaults. See Fig. S, at p. 30. The chart does not provide longitudinal data for acquittal rates.

Annals of transparency (one in a series)

Writing here in The Northlines, Venkatesh Nayak, Programme Coordinator at the Commonwealth Human Rights Initiative, recounts difficulties faced in getting answers to some basic questions about the administration of India's Armed Forces (Jammu and Kashmir) Special Powers Act 1990. In a word, lots of paper shuffling, concluding in doubtful answers from two government offices. Excerpt:
What is wrong with these replies? 
If neither the Defence Department nor the Indian Army has the details of cases sent by the J&K Government requesting sanction for prosecution of defence personnel, then what was the basis of the Minister’s reply tabled in Parliament on new year’s day this year? Surely, no other Ministry can be involved as this subject matter is not allocated to them under the Allocation of Business Rules, 1961. 
Further, only one of the two public authorities -- the Defence Department or the Indian Army -- can be telling the truth. Both their RTI [Right to Information Act 2005] replies cannot be true and correct as they contradict each other. Even if the files of all decided cases might have been sent back to J&K, surely an office copy of the replies sent (RTI query#4) would have been maintained by the concerned office. 
Further, if the norms, criteria and standards for assessing evidence and the rank and designation of the officer who is competent to make a decision whether to permit prosecution or not, are not written down in any official record, then who in Government rejected the requests for sanction to prosecute defence personnel and by following what procedure? 
All of this information should have been proactively disclosed under the RTI Act. Sub-clauses (ii), (iii) and (iv) of Section 4(1)(b) of the RTI Act require the Defence Department to voluntarily disclose the procedure for decision making and the related supervisory and accountability mechanisms along with the attendant norms and criteria involved in the making of such decisions. Section 4(1)(c) of the RTI Act requires the Defence Department to place all relevant facts in the public domain while announcing decisions that affect the public. The people in J&K and elsewhere in India have the right to know these facts. Under Section 4(1)(d) of the RTI Act, the affected families have the right to know the reasons behind the denial of sanction for prosecution in all 47 cases. Despite pointing to this duty of proactive disclosure in the RTI application, the public authorities have denied the very existence of the case files and information regarding the procedures to be followed and the norms to be applied while denying sanction for prosecution. 
Of course, I will move the Central Information Commission against the two public authorities for denying the very existence of the information requested in the RTI application. However, the contradictory RTI replies relating to a matter raised in Parliament is perplexing, to say the least.

SCI v. MoD v. AFT

The Statesman has run this strong editorial about the flak the Indian Ministry of Defence has been getting from the Supreme Court over its practice of filing unwarranted appeals from the Armed Forces Tribunal. Excerpt:
The defence minister is best-placed to either permit the AFT to “deliver” as envisaged, or muster the moral courage to junk the Tribunal. For far too long have the bureaucrats used every ruse in the book to hinder the functioning of the AFT, and have driven many a military veteran to despair and financial ruin when litigating for benefits they “earned” when braving the elements and enemy bullets defending the nation’s territorial integrity and honour.

Friday, April 27, 2018

Dress for success

Two generals who fled with Gambia's former dictator have returned and are being tried for desertion. But what do they wear to court? Here's the story from Foroyaa:
The criminal trial at the general Court-Martial involving Generals Oumpa Mendy and Ansumana Tamba, has suffered another setback on Wednesday 25th April 2018.

On the last adjourned date, the Court-Martial held that the Generals were members of the Gambia Armed Forces (GAF) and can be tried under the GAF Act. During the last session, the Court-Martial overruled the defence’s objection that the two Generals are not serving members of GAF, since their uniforms were taken from them and have not been receiving salary from the Army among others, as well relying on some provisions of the GAF Act and Regulation.

The case was adjourned to yesterday Wednesday, 25th April 2018, for the defence to raise objections they may have, against the composition of the Court-Martial, as well as take their plea. This could not hold due to the prosecution failing to adhere to the Court-Martial’s order that the accused persons should be in uniform when appearing before it. The accused persons since the commencement of the trial, have been coming in civilian clothes (black suits). The Court-Martial has summoned the Army to appear today and explain why the soldiers are not provided with uniform. . . .

Thursday, April 26, 2018

Death sentences upheld in Bahrain

Bahrain is ignoring the human rights principle that civilians should not be tried in civilian courts. Excerpt from this report:
Bahrain’s highest military appellate court has upheld death sentences against seven anti-regime activists as the ruling Al Khalifah regime presses ahead with its heavy clampdown on political dissidents and pro-democracy activists in the kingdom.

On Wednesday, Bahrain's Military Court of Cassation found Adel Mubarak Muhanna, Fadel Sayyed Abbas Hassan Radhi, Sayyed Alawi Hussein Alawi Hussain, Mohamed Abdulhassen Ahmed al-Matghawi, Mohammed Abdul Hussain Saleh al-Shihabi, Mohammed Abdul Wahid Mohammed Al-Najjar and Hussein Mohammed Ahmed Shihab guilty of attempts to assassinate Commander-in-Chief of Defense Force Field Marshal Khalifa bin Ahmed Al Khalifah, Arabic-language Bahrain Mirror news website reported.

Meanwhile, the Bahrain Opposition Bloc in London (BOBL) has strongly condemned the rulings by Bahrain’s top military court, stating that the verdicts against a group of civilians expose absence of an independent judiciary in the Persian Gulf kingdom.

“These verdicts clearly show the lack of an independent judiciary in Bahrain as the court relied on confessions extracted under torture and threats,” the group said in a statement.

Wednesday, April 25, 2018

What's changed by the proposed new joint CCA rules?

Global Military Justice Reform readers will recall the recent publication of a proposed revision of the Joint Rules of Appellate Procedure for the service Courts of Criminal Appeals. We have obtained the following unofficial summary of the changes the proposal would make in the current rules. According to a footnote, the document "does not reflect the views of any agency or governmental entity." Here is it:

Major proposed revisions include:

Reorganized into sections to put into more logical clusters and to mirror CAAF and Federal Rules more closely:

                I. General 
              II. Attorneys
             III. Practice Before the Court
             IV. Proceedings of the Court

Rule 1: Courts of Criminal Appeals
  • Old Rule 1. 
  • Adds new subsection 1(c) to address certification and minimum tour requirements.
Rule 2: Scope of Rules; Title
  • New rule. 
  • Makes explicit that filings must comply not only w/ Jt Rules but w/ Service Court Rules. 
  • Rename from “Courts of Criminal Appeals Rules of Practice and Procedure” (colloquially called the “Joint Rules”) to “Joint Rules of Appellate Procedure for CCAs” (JRAP) modeled after Federal Rules of Appellate Procedure (FRAP). 
Rule 3: Service Court Rules 
  • Old Rule 26 (Internal Rules) 
  • Renamed and reworded.
Rule 4: Effective Date
  • New rule 
Rule 5: Jurisdiction
  • Old Rule 2. 
  • Substantially rewritten to account for changes to CCA jurisdiction per Military Justice Act of 2016 (MJA16).
Rule 6: Scope of Review
  • Old Rule 3.
  • Subsection (a) rewritten per MJA16. 
  • Subsection (b) added in attempt to define the record on appeal in greater detail. 
Rule 7: Quorum
  • Old Rule 4. 
  • Rewritten and reorganized to follow CAAF Rules and FRAP more closely.
Rule 12: Assignment of Counsel
  • Old Rule 11 
  • Major revision to account for MJA16, including requirement for learned counsel in capital cases. 
Rule 14: Notice of Appearance and Withdrawal of Counsel
  • Old Rule 13 (Notice of Appearance of Counsel) 
  • Adds subsection 14(b) requiring motion prior to withdrawal as some CCAs already have. 
Rule 15: Filing and Service
  • Old Rule 5. 
  • Modifies Rule 15(a) to make explicit that Service Court rules will dictate where and how to file pleadings. 
Rule 19: Briefs
  • New rule.
  • Makes explicit that form, content, and space limitations will derive from Service Court rules vice JRAP. 
  • But imposes requirement for Chief Judges to confer periodically to ensure that such rules are, when practicable, consistent across CCAs. 
Rule 20: Appeals by the Accused
  • Old Rule 15. 
  • Renamed from “Assignments of Error and Briefs” for consistency with MJA16 language 
  • Adds Rule 20(b) regarding Grostefon submission. 
Rule 22: Appeals by the United States
  • Old Rule 21. 
  • Updated to account for new Article 56(d) (Appeals of Sentence by the United States).
Rule 29: En Banc Proceedings
  • Old Rule 17. 
  • Reordered and modified to:
               Track FRAP more closely
               Use phrase “in regular active service” vice “present for duty”
               Add 29(d) from FRAP.

Rule 30: Contempt
  • New rule. 
  • Provides structure both to appeal of contempt punishments from lower courts as well as new contempt proceedings at CCA level. 
Rule 31: Art. 66(f) Proceedings
  • New rule based on MCA16’s new Art 66(f)(3) (“Additional Proceedings”), which effectively codifies DuBay.

Mighty attention-grabbing headline

We Are the Mighty (love that name) here offers 6 Things Not to Do While Getting an Article 15 (nonjudicial punishment). The Editor's favorite comes third: "Don't mouth off to your commander." This is always good advice.

Summary trials (administrative punishment for minor offenses) rarely make the news but account for far more cases than the better-known courts-martial. It's an area that can raise due process and human rights concerns and deserves much closer study than it has received.

Tuesday, April 24, 2018

Egyptian military court jails former chief auditor

Here is Amnesty International's report on the sentence meted out to Egypt's civilian former chief auditor by a military court. Excerpt:
Responding to the sentencing of Hisham Genina, former head of the Central Auditing Organisation in Egypt, to five years in prison on charges of “publishing false information for harming national security”, Amnesty International’s North Africa Campaigns Director, Najia Bounaim said:

“The arrest, military trial and outrageous five-year sentence for Hisham Genina is another example of the shameless silencing of anyone who is critical of the Egyptian authorities. We call for the immediate and unconditional release of Hisham Genina. His continued imprisonment for his criticism of the recent election process is a reprehensible violation of his right to freedom of expression.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Where should these cases be tried?

The Irawaddy reports here on cases in which Myanmar's soldiers have committed crimes against civilians. Should the cases be tried in the civilian courts or before courts-martial?

Human rights advocates argue that serious human rights violations should be tried in the ordinary courts.

Haditha case movie

Adam Linehan's Task & Purpose article on a newly-released movie about the Haditha case begins this way:
On Sunday night, a full house turned up at the Tribeca Film Festival in Manhattan for the premiere of “House Two,” an investigative documentary more than decade in the making that makes troubling allegations regarding the Marine Corps’ handling of one of the most brutal war crimes cases of the Iraq War. It also raises questions about the involvement of the current Secretary of Defense in a serious miscarriage of justice.
Three top flight military justice experts -- all retired Marine judge advocates -- are quoted. (Spoiler alert: they don't see things the same way.) The movie is likely to cause a stir.

Sunday, April 22, 2018

22 years after court-martial, widow of (now deceased) officer gets back the honour

The Armed Forces Tribunal has set aside the conviction orders of a Colonel by a Court Martial.

The officer was earlier convicted by the Court Martial which had awarded him five years forfeiture of service for the purposes of pension. The award was however not accepted by the senior commanders who ordered a revision after which the same Court Martial directed cashiering of the officer which was later converted into dismissal.

The Armed Forces Tribunal, as per this report in The Tribune, has held that the officer who had passed the order of revision was not competent to do so and the tribunal has consequently set aside the entire Court Martial.

The officer died during the integrum and his wife would now be eligible for all benefits.

End-of-Term reception at U.S. Court of Appeals

The U.S. Court of Appeals for the Armed Forces and the Pentagon Chapter of the Federal Bar Association will hold a reception marking the end of the court's Term at noon on May 3, 2018 at 450 E St., N.W., in Washington, DC. Details and RSVP information is available here.

Tunisia's abusive use of military courts

Al-Monitor has this column by Hanen Jebli under the headline "Is freedom of expression at stake in Tunisia?" It's an understatement. Here's an excerpt:
One of those prosecuted as a result of Facebook posts is opposition parliament member and blogger Yassine Ayari, who appeared April 10 before the criminal court of the Tunisian military judicial system on felony charges of treason and conspiring against state security, according Ayari defense team member Malek bin Omar.

Ayari said in a Facebook post April 10, “The trial was illegal,” adding that he appeared before the court but remained silent the entire time because of the case's illegitimacy and because of the state's futility. The case was adjourned until May 8, on the grounds that the military court’s report was not yet ready.

Omar said that Ayari, out of respect for the judiciary, did not insist on benefiting from parliamentary immunity in the case. The legislator had said in a March 30 blog post that the punishment for the charges could include the death penalty.

On March 27, in a separate case, the military judiciary sentenced Ayari to 16 days in jail for criticizing the military and offending the president of the republic, Omar said. The military prosecution, however, appealed the sentence in the misdemeanor case, saying it was too lenient.
The column reports on an earlier prosecution as well:
Ayari was previously tried and imprisoned several years ago for publishing critical comments online. A military court sentenced him in November 2014 in absentia to three years on charges of “insulting the dignity of the army” and criticizing Justice Minister Ghazi al-Gribi as well as specific appointments made in the military command. In January 2015, a military court reduced the sentence to one year in prison. He was released after six months in jail.
These are plainly abusive uses of military courts, and violate the International Covenant on Civil and Political Rights.

Saturday, April 21, 2018

War crimes in Sudan

The Guardian reports: UN investigators say they have identified more than 40 South Sudanese military officers who may be responsible for war crimes and crimes against humanity.

Their findings are a sharp departure from previous UN reports that documented crimes but not perpetrators.

Oil-rich South Sudan gained independence from neighbouring Sudan in 2011, but slid into civil war in December 2013. More than 4 million people, a third of the population, have been displaced by violence.

The investigators, from the UN Commission on Human Rights in South Sudan, say their findings are based on interviews with hundreds of witnesses, satellite imagery and nearly 60,000 documents dating back to the outbreak of the war.

Their report, released on Friday, makes the case for “individual command responsibility for widespread or systematic attacks on civilians” by senior military officers, including eight lieutenant generals, and by three state governors.

Commission on Human Rights in South Sudan

Human Rights Watch has a report on South Sudan, here.

Some U.S. Army legal publications available again

You may know that U. S. Army legal cases and publications have not been available to the general public for a while now.  This is apparently due to the never-ending need to update websites for security reasons.

However, the Army Lawyer, Military Law Review, and TJAGLCS publications are now available at this link.

Such a deal

RMS Queen Mary 2
This is not about military justice, but it's too good to pass up for anyone who has dealt with government reimbursement of travel claims. A German court has ruled that the government must reimburse the full fare paid by a Bundeswehr attaché returning to the country with his family following duty in Washington -- not the €5,000-6,000 it would have cost to fly business class (as authorized by regulations), but the €3,500 he frugally paid to take the Queen Mary 2.

Why is this case in military court?

A military court in Tunisia has sent the daughter of a former dictator to prison for two years for selling military land without proper papers, according to this brief Kapitalis account.

Human rights principles strongly disfavor the trial of civilians in military courts.

And Bhutan makes 182

As of a few moments ago, Bhutan became the 182nd jurisdiction from which readers have accessed Global Military Justice Reform since our January 12, 2014 launch.

While we're at the store, let's run the other numbers:

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From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, thanks to everyone for helping us reach this point. Keep it up, and please pass the word to friends who may find the blog worth following.

Annals of transparency

Carl Prine covers military justice for the San Diego Union-Tribune. Here he describes a case in which it took three months just to get a copy of the charges lodged against a Marine. He finally got what he sought two duty days before the trial. His article refers at one point to having to seek relief from "a special internal Navy administrative court." The phrase doesn't ring a bell -- perhaps a fancy way of saying he had to file an intra-agency FOIA appeal?

Timely media access to military justice records has been a problem for decades. The San Diego Recruit Depot seems not to have gotten the memo. Kudos to retired Marine Grant S. Lattin of the Navy's General Litigation Division for getting things back on track (and avoiding a needless FOIA lawsuit), but this simple matter should not have taken so long. Kudos also to the newspaper for standing its ground.

Moral: Matthew 7:7.

Friday, April 20, 2018

Sudan to maintain military trials for rebels

The Sudanese cabinet has rejected a proposal to shift the trial of rebels to civilian courts. Sudan Tribune has the story here. Excerpt:
But the second amendment provoked a debate among the ministers, as many, including the state minister for defence saying it gives the rebels a privilege they did not deserve and encourage them to rebel against the government. Following what the First Vice President Bakri Hassan Saleh who is also the Prime Minister decided to postpone the meeting until Thursday for further consultations.

"The government decided that the holders of arms who received a military training and fought against the state would be tried before the military court," the spokesperson of the Council of Ministers, Omer Mohamed Saleh, told reporters after the regular cabinet meeting on Thursday.

Thursday, April 19, 2018

Naval officer convicted for obscene calls to spouses of colleagues: Supreme Court of India affirms conviction but directs reinstatement

The Supreme Court of India has dismissed two cross appeals filed by the Government and an accused officer in a case where the said officer of the Indian Navy was convicted by a Court Martial for making sexually explicit calls to wives of his colleagues.

A Court Martial had convicted the officer for the said offence and had awarded him dismissal from service and loss of seniority for 24 months. The Armed Forces Tribunal had however set aside the dismissal and had directed his reinstatement in the Navy, though it had maintained the conviction and the other part of the sentence.

Both the Government as well as the officer had challenged the verdict in the Supreme Court.

The Supreme Court has dismissed both appeals and upheld the order of the Armed Forces Tribunal. The Apex Court has agreed with the appreciation of the evidence of the Court Martial by the Tribunal.

The officer has been directed to be re-instated into service but without the back-wages from the date of dismissal till date of reinstatement on the principle of ‘no work no pay’. He will also suffer the other part of the punishment, that is, loss of seniority for 24 months.

But was it desertion?

The long-running Kenya Navy case continues, but now it is in the Court of Appeal. The Daily Nation reports on the latest proceedings on the government's appeal. Excerpt:
The government has asked the Court of Appeal to jail for life 25 naval soldiers who were acquitted for deserting the military ten years ago.

The State, through the office of Director of Public Prosecution (DPP), has said that failure to do so, will cripple Court Martials’ powers to instil discipline in the forces.

The DPP’s office has expressed fears that court martials will be rendered toothless should the appellate court fail to overturn the High Court’s decision that had set the former soldiers free.

“The applicant is apprehensive that if the decision of the superior court is left unchallenged, it will not only set a bad precedent but also curtail the powers of the court martial as a disciplinary mechanism of the military forces,” Principal Prosecution Jami Yamina said.

DESERTION

“It will also visit great uncertainty to the forces as to what constitutes the offense of desertion as opposed to that of absence without leave,” he added.
The central issue is whether the accused were guilty of desertion or merely absent without leave.
The [High Court] judge noted that charges preferred against the soldiers were flawed and that the court martial erred in law and facts in making a determination that the respondents were active in service.

Justice [Martin] Muya also noted that Kenya was not at war when the soldiers left the military.

Justice Muya said that it was not disputed that the litigants wanted to leave the Kenya Defence Forces because evidence adduced in court indicated the former soldiers had initiated a process to leave service.
The Court of Appeal hearing had to be adjourned because the DPP had neglected to serve the appeal on the convicted sailors, as report here.

Wednesday, April 18, 2018

Wing Cdr (R) Jha: India needs a manual of military law

Daily News & Analysis has this op-ed by retired Wing Commander U C Jha, arguing that India needs a manual of military law. Excerpt:
War has always been subject to certain principles and customs. The law of war is rooted in the rules of ancient civilisation and religions. Historically, India has held a leadership position in the development of laws for its military to ensure compliance with the obligations of the law of war. Kautilya’s Arthashastra, dating back to 400 BC, contains principles and practices to be followed during war. Kautilya’s laws for the military clearly recognises the distinction between military targets, which can be attacked, and non-military persons and objects that could not be attacked. The Mahabharata and the laws of Manu also contain provisions that prohibit the killing of an injured adversary, forbid the use of certain weapons, and regulate the protection of prisoners of war. Unfortunately, our Armed Forces, the third largest in the world, does not have any written code applicable for the armed conflict, whether international or non-international.

Unlawful command influence and administrative separation: two bites at the apple?

What happens if a soldier wins a claim of unlawful command influence in a court-martial? Can the service still separate him or her administratively based on an allegation of having committed a serious offense? That is the question presented in a case in the U.S. Marine Corps. Carl Prine has the story here in the San Diego Union-Tribune. A misconduct discharge can have lifelong stigmatizing effects.

Jamaica Defence Force immunity issue becomes political

The Loop reports here on the latest developments in the case of three Jamaica Defence Force members who are on trial for murder and have claimed immunity under ministerial certificates. Excerpt:
Opposition spokesperson on justice, Senator Donna Scott Mottley in the news release, stated that it was during the Bruce Golding government, which included at least nine current Cabinet Ministers, that Parliament brought into effect the Emergency Powers (No 10 [sic, should be No. 2]) Regulations of 2010, which, according to Section 45 (1), gave immunity from prosecution to any member of the security forces for “acts done in good faith in the exercise of (their) functions for public safety”.

Scott Mottley argued that it was incontrovertible that [Keith] Clarke's death occurred during a security forces operation — involving military intelligence and equipment, including helicopters, lorries and personnel carriers — and that the three JDF officers charged are of low rank.

At the time of the operation, the Minister of National Security was Dwight Nelson. However, the DPP 's ruling that the soldiers should be charged came after the change of government.

“It is only because of this that Mr Bunting became involved and certified that the acts of the soldiers charged were done “in good faith in the exercise of (their) functions as members of the security forces for public safety, the restoration of order, the preservation of peace and in the public interest”, as required by the 2010 regulations,” explained Scott Mottley.

She said neither former minister Bunting, nor any minister, can grant immunity from criminal charges, only the law of the country can, explaining that it is only the DPP who can end criminal prosecutions.

Tuesday, April 17, 2018

India files reply in International Court of Justice case

India today filed its reply to Pakistan's submission in the consular-access case involving an Indian citizen who was convicted and sentenced to death by a Pakistani military court. Details here courtesy of The Times of India. Pakistan has until July 17th in which to file its rejoinder in Jadhav Case (India v. Pakistan).

The court last year directed that "Pakistan shall take all measures at its disposal to ensure that Mr. [Kulbhushan] Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order."

#MeToo, eh?

The Truro Daily News reports here on sexual assaults in the Canadian Armed Forces. Excerpt:
Studies including the Statistics Canada survey and the Deschamps report have proved to be a wakeup call for the military, said Maya Eichler, a professor at Mount Saint Vincent University who does research in the area of gender integration in the Canadian military.

But trying to achieve any meaningful change in culture is going to be a lengthy process, she said.

“One has to be aware of the legacy of the military as a gendered organization and for how many decades there has been both overt and implicit gender discrimination,” she said.

“Obviously, it’s a broader societal problem and not just a military problem. At the same time we have a responsibility to change the institution.”

Changes proposed to courts of criminal appeals joint rules

Today's Federal Register includes a notice of proposed changes to the Joint Rules of Appellate Procedure for the Courts of Criminal Appeals, 83 Fed. Reg. 16841 (2018). The changes implement the Military Justice Act of 2016 and the 2018 amendments to the Manual for Courts-Martial. According to the notice, the text of the proposed changes can be found on www.regulations.gov under Dkt. No. DoD-2018-OS-0019. As of this post, however, they are not available at that site. Further information can be obtained from Lieutenant Commander Rachel E. Trest, rachel.e.trest@navy.mil, (202) 685-4621. Comments must be received no later than May 17, 2018.

Update: the proposed rules are now available here.

Monday, April 16, 2018

Here we go again in Uganda

Another civilian is challenging the jurisdiction of Uganda's general court-martial to try her, according to this New Vision report. Excerpt:
The former UPDF resource manager accused of causing financial loss of sh2b by placing a Russian ‘ghost pilot’ on the payroll has petitioned court, seeking to challenge her trial at the army court.

Through Ojok Advocates, Carolyn Kyakabale, 37, says her trial at the General Court Martial (GCM) for a non-service offence violates her right to a fair hearing because she is a civilian.

“My trial on frivolous and vexatious charge violates my right to a fair hearing and continued prosecution for the said offences tantamounts to malicious prosecution,” she argues.

Kyakabale, the former manager in-charge of civilian personnel in UPDF Air Forces is battling charges of fraud alongside Maj. Kapalaga Lubega, 60 and his wife Evas Lubega Twinomujuni, 49.

Lubega is a former UPDF officer attached to Air-force under the directorate of medical services.

They were charged under section 176(g) of the UPDF Act, 2005. A person who commits fraud is on conviction, liable to imprisonment not exceeding seven years.

Prosecution led by Maj. Raphael Mugisha alleges that the accused between the months of October 2015 and January 2016 caused the ministry of defence to enter into an employment contract with Valerie Ketrisk, a Russian non-existing pilot.
Human rights norms strongly disfavor the trial of civilians by military courts. Uganda has repeatedly disregarded this doctrine.

New code of conduct rules for the PLA

Xinhua News Agency has the following story headlined "New military rules stress Xi thought" (excerpt):
China has issued a set of revised regulations on the fundamental rules governing the People’s Liberation Army that stress Xi Jinping thought on strengthening the armed forces.

The regulations included rules on military discipline, training management, soldiers’ weight standards, use of mobile phones and the Internet, as well as the use of gun-firing salutes to pay respect to martyrs.

President Xi Jinping, who is also chairman of the Central Military Commission, signed orders to publish three regulations on the military’s interior order, code of conduct and military formation. . .

The regulation on interior order has been revised to enhance the political loyalty of the armed forces, strengthen them through reform and technology, and run them in accordance with law. It also underlined a greater focus on combat. . . .

The regulation included revised rules on soldiers’ using mobile phones, the Internet, new media and online shopping. . . .

The revised regulation on the military code of conduct stipulated relevant rules regarding the military’s political loyalty, organization, combat operations, training, work, confidential information, integrity, financial affairs, interaction with the people and daily life. It also provided detailed rules on related awards and punishments.
Global Military Justice Reform hopes to furnish details when they become available. 

Sunday, April 15, 2018

Unlawful command influence, other concerns, at issue in San Diego case

A battle royal is unfolding in San Diego over allegations of unlawful command influence in a case involving U.S. Navy SEALs. Here's the latest, from Carl Prine of the Union-Tribune. The lede:
Three SEALs accused of committing war crimes in Afghanistan hope to escape court-martial by expanding an evolving legal concept unique to the military — the appearance of unlawful influence by commanders that’s so odious it ruins the public’s faith in the criminal justice system. 
“I don’t know how anyone in the general public could look at this without holding their nose,” said Colby Vokey, part of the defense team for the SEAL defendants.
An interesting subplot concerns two lawyers from the local United States Attorney's Office who were also naval reservists. Did their dual roles create a problem? Excerpt:
Playing out behind the scenes was a secret probe by the U.S. Department of Justice, which defense attorneys also say was prodding the Navy to do something.

On Tuesday, the criminal defense attorneys revealed that federal prosecutor Michelle Pettit quietly led a grand jury probe in San Diego that put two of those new witnesses against the SEALs on the stand but triggered no indictments.

Pettit has been linked to another controversial case involving [Vice Admiral JamesCrawford — the investigation of several SEAL trainers following the May 6, 2016, drowning of Seaman James Derek Lovelace in a Navy pool.

In July, whistleblowers submitted a slew of internal Navy records to The San Diego Union-Tribune. They included an email sent by Navy Capt. Donald King — the staff judge advocate for San Diego’s Navy Region Southwest — to Pettit and Blair Perez, the executive assistant U.S. attorney for the Southern District of California.

King wrote that Crawford had “ordered a second look” at his team’s recommendation to forgo charges against SEAL trainers who were present when Lovelace died, a decision reaffirmed at every other layer of the Navy.

Both Perez and Pettit are military attorneys in the Navy reserves, with Pettit also serving as an appellate judge on the Navy Marine Corps Court of Criminal Appeals, which raised concerns from the criminal defense attorneys in the Lovelace case, too.
As well it might. How can the same individual serve as a part-time criminal court appellate judge and full-time prosecutor?

Bar & Bench notes The Yale Draft's implications for India

Decaux Principles Workshop
Yale Law School, 2018
Murali Krishnan, writing in Bar & Bench, reports here on "The Yale Draft" proposal to update the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals. Excerpt:
Advocate Navdeep Singh, who is the founder President of the Armed Forces Tribunal Bar Association at Chandigarh spoke to Bar & Bench about the relevance of the Yale Draft in the Indian context.

“Though military law is not draconian in our nation, it’s definitely outdated. The feature which stands out like a sore thumb is that there is no independence of various limbs of military justice wherein the prosecution, defence, confirming agencies, judge advocates, adjudicators, all function under the command of the same authority which is an interested party in prosecution and securing conviction. There’s not even a separate directorate or department of prosecution.”

Singh also spoke about the lack of qualification of jury members and the high conviction rate which was indicative of the absence of judiciousness, fairness and robustness.

“No member of the jury is legally qualified and courts martial are loose ad hoc bodies without permanent infrastructure. Senior military officers have the power to even overturn judicial verdicts rendered by courts martial. The system is proud of the high conviction rate and the swiftness of such convictions by courts martial, but this simply shows efficiency of procedure and not judiciousness, fairness or robustness.

It is hoped and expected that resistance by power centres to change or protect their turfs gives way to progressive thought. Former Defence Minister Mr Manohar Parrikar had taken keen interest in the matter and had directed the constitution of a study group in August 2016 on recommendations of a committee of experts, but no implementation letter has been issued till date on the direction of the then minister. A fair, just and independent system will only promote discipline and not the opposite, as it’s wrongly believed.”

Saturday, April 14, 2018

The Supreme Court of India asks government to clarify stand on women officers

The Supreme Court of India posed some tough questions yesterday to the counsel representing the Union of India during the hearing of an appeal filed by the Central Government against a verdict of the Delhi High Court striking down the discrimination with regard to grant of Permanent Commission to women Short Service Commissioned Officers of certain branches of the military vis-a-vis their male counterparts.

The Court expressed its displeasure on the fact that on one hand achievements by women in the military were being highlighted by the Government, and on the other hand a contrary stand was taken in the Court.

The Supreme Court has granted a week’s time to the Government to seek instructions in the matter.

A report in the Hindustan Times can be accessed here.

Friday, April 13, 2018

One in six Belgian recruits left the Army because they missed their family and friends

The Belgian press reported that the Defense Ministry is facing criticism for plans to allow recruits to sleep at home rather than in barracks to prevent them from getting homesick. The Ministry has lost nearly 4,000 recruits over the past decade because of complaints of missing homelife and hobbies.  The Ministry is attempting to deal with the transition for the recruits to the 28,000 army.  The army wants to include more free evenings where the recruits can leave the barracks.  The recruits are expected at the gate Sunday evening or latest Monday morning and are not permitted to leave before Friday.

The military is even considering letting recruits sleep at home for those cases where they live near the military school or the barracks and can go home in the evening.  Danny Lams, a former paratrooper and chair of a veterans organization, scoffed at the idea saying: "You do not go to a war zone with men who miss their mama."

New study claims Colombian military killed more civilians than guerrillas

A new study by a former police colonel and sociologist, Omar Rojas, and historian Fabian Leonardo Benavides, claims that Colombia's military executed approximately 10,000 civilians between 2002 and 2010.  The study was published in the book "Extrajudicial Executions in Colombia, 2002-2010 - Blind Obedience in Fictitious Battlefields."

This means that the majority of the 16,724 combat kills reported by the military were civilians and not guerrilla, as the Colombian people were led to believe.  Colombia's Attorney General's office is currently investigating 4,780 false positives.  According to Omar Rojas,the practice was a coordinated effort to mislead the country into believing that the military was winning the armed conflict.

Hundreds of soldiers accused of committing the executions are waiting to be called to trial before a transitional justice court and a truth commission that seek to clarify the tens of thousands of human rights violations committed by the military and the guerrilla.

The International Criminal Court has warned Colombia that unless military commanders are prosecuted in Colombia they could be prosecuted in The Hague.

Pakistan's 2017 executions

Amnesty International's global report on Death Sentences and Executions for 2017 has the following to say about Pakistan:
At least 60 executions were carried out in Pakistan in 2017, down from 326 and 87+ in 2015 and 2016 respectively. Forty-three of the executions involved prisoners convicted by military courts established in January 2015 to try civilians suspected of terrorism-related offences. The Parliament extended the original two-year tenure of these courts on 22 March, when it approved a new constitutional amendment. Proceedings under these military courts did not meet international fair trial standards. Among other concerns, they were run by military officers subordinate to the military chain of command − and who had no formal legal training − in breach of the UN Basic Principles on the Independence of the Judiciary. The charges against the defendants were not made public and those convicted did not have the right to appeal to civilian courts. [p. 24, footnotes omitted.]

Order in Stillman v. H.M. The Queen

The following order was entered on April 11, 2018 in Stillman v. H.M. The Queen, No. 37701 (Supreme Court of Canada) (Gascon J.):
UPON APPLICATION by the appellants for an order extending the time to serve and file their factum and record to eight (8) weeks after the date on which the reasons for judgment in R. v. Beaudry, CMAC-588, are released;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

1. The motion is granted. The appellants are permitted to serve and file their factum, record and books of authority eight weeks after the date of the judgment of the Court Martial Appeal Court in Beaudry
2. The appellants are required to advise the Registrar, in writing, within seven days of the date of any decision or judgment of the Court Martial Appeal Court with respect to the Beaudry case. Once the Registrar is advised of the date, he shall establish a new filing timetable.

3. The appeal, which is tentatively scheduled to be heard on October 16, 2018, is adjourned to a date to be fixed by the Registrar.
Beaudry was argued in Ottawa on January 30, 2018.

Why is this case in military court?

It's Egypt's turn again. The country's former top auditor is slated for trial in a military court. Excerpt from this EgyptianStreets account:
The former head of Egypt’s Central Auditing Organization (CAO) Hisham Geneina has been offered to a military trial on Thursday and will stand before the judges in the first trial on 16 April.

Besides being the former head of CAO, Geneina also was set to be the vice president of former presidential hopeful and ex-general Sami Anan.

Geneina was arrested in February after he had made press comments to the HuffPost Arabic. Geneina revealed in his press statements that Anan is in possession of documents against the military leaders and the current regime, further threatening that these documents will be released if Anan got assassinated during his imprisonment.
Human rights jurisprudence strongly disfavors the trial of civilians in military courts. Egypt is a persistent violator of this principle. 

Thursday, April 12, 2018

Military Police Complaints Commission opens an investigation

Further to Col. Michel Drapeau's post of earlier today, the Military Police Complaints Commission has opened a public interest investigation into the allegations made by Jeffrey Beamish, a former member of the Canadian Armed Forces. The commission's detailed decision can be found here. Its announcement reads as follows:
The Military Police Complaints Commission of Canada (MPCC) is conducting a Public Interest Investigation (PII) into a historical complaint that alleges torture and abuse of former CAF members.

In December 2016, the MPCC received a complaint from counsel for Mr. Jeffrey Beamish, a former CAF member. The complaint relates to a CFNIS investigation into alleged torture during training exercises that occurred at the Infantry Battle School at CFB Wainwright between October 1983 and March 1984.

Mr. Beamish alleges that while participating in an exercise that included a Prisoner of War scenario, he and approximately 32 other recruits were stripped and placed in prison cells that were too small to allow them to move or sit. The complaint further alleges that, over the following 24 to 48 hours, the naked recruits were sprayed through the jail door bars with cold water from a hose while the windows were left open, letting in the outside air. It is alleged that the temperature outside was between -15°C and -30°C.

The complaint alleges that this exercise resulted in Mr. Beamish suffering from major depressive disorder, PTSD, night terrors, paranoia and adjustment issues.

Mr. Beamish made a complaint to the Military Police (MP), who referred the matter to the CFNIS. In August 2016, the CFNIS member in charge of conducting the investigation called the complainant to advise him that the investigation was closed.

The complaint is about the conduct and performance of the CFNIS investigator and specifically alleges “professional negligence, incompetence, and failing to investigate serious criminal allegations.”

On April 11, 2018, Hilary McCormack, Chairperson of the Military Police Complaints Commission of Canada, decided that the MPCC will conduct a Public Interest Investigation into this complaint. She also noted that other CFNIS members were involved in the decision to close the CFNIS investigation, and identified them, as well as the CFNIS investigator, as subjects of the complaint.

Updates on the progress of the investigation will be posted in the "Timeline".

OTP and the US: (un)complementarity

Former Defense Department officials William Lietzau and Ryan Vogel write about complementarity here on Just Security. Excerpt:
In theory, complementarity should resolve practical concerns regarding politically-motivated excesses. Since no reasonable U.S. official would argue that the United States lacks the authority or will to investigate and prosecute the most serious atrocities, why would it have concerns about ICC jurisdiction over American nationals? The answer is that complementarity analysis is necessarily burdened by myriad facts; and facts can be manipulated to an even greater degree than can the law—especially facts not associated with the gravamen of an offense like the relative genuineness of a state’s claim to having conducted an investigation.

Any review of the Afghanistan examination yields significant questions as to how the OTP [Office of the Prosecutor] could possibly deem U.S. detention practices to meet the admissibility (not to mention, interests of justice) threshold. The United States has repeatedly made clear that, as a non-party, it rejects any assertion of ICC jurisdiction and does not consider itself legally required to satisfy the OTP’s demands for information. Yet, during the preliminary examination, U.S. officials met regularly with the OTP, supplied it with copious information regarding investigations and processes, and answered questions related to specific allegations. Moreover, the Pentagon expended hundreds of man-hours attempting to determine whether there was any actual evidence to support OTP allegations, and whether those allegations had been reviewed. This was no easy task considering the fact that in the collective theaters of war DoD had detained more than 100,000 persons and OTP evidence, often derived from bald assertions by human rights organizations, would never meet the credible information standard used for the thousands of detention-related investigations the United States had conducted.
They add:
. . . The record demonstrates the United States’ firm commitment to investigate, assess, and adjust detention operations during armed conflict and to prosecute abuses when appropriate. But in a perverse twist, the OTP cited improvements and policy clarifications not as laudable complementary efforts at ensuring humane treatment but as proof of wrongdoing. This is a common legal maneuver whereby the (incorrect) assumption is that a policy would not need clarification or modification if it had not previously amounted to a violation. And instead of avoiding any hint of political manipulation, some in the OTP actually have admitted that part of the rationale for rejecting complementarity claims was to counter African criticisms that the ICC is a Western court only interested in prosecuting nationals of third-world countries. In other words, the complementarity principle has been turned on its head, and the reasons for it are political.

Military Police -- an anachronism or a contradiction in terms!

CBC reports that the Military Police Complaints Commission (MPCC), a quasi-judicial body independent from the government and the armed forces, has launched a "public interest investigation" into a complaint filed under section 250 (18) of the National Defence Act regarding the failure by the Military Police [MP] to properly investigate allegations of ‘torture’. 

The original allegations were made by a single individual but corroborated by no less than four of his former comrades-in-arms. 

The allegations state that between October 1983 and March 1984, recruits undergoing basic infantry training at the CFB Wainwright Battle School were subject to an ‘escape and evasion” drill, including a Prisoner of War (POW) exercise.  

Approximately 33 recruits were involved. 

Allegations of serious abuse of recruits

Recruits were made to remove their clothes and were placed in prison cells that were too small to allow recruits to move or sit. 

Over the next 24 to 48 hours, the naked recruits were sprayed through the jail door bars with cold water from a hose while the windows were left open, letting in the outside air. The outside temperature hovers around -15 and -30 C. Recruits did not have access to bathrooms. 

Allegations of torture were made to the Military Police in 2016. A few months later, the Military Police investigator phoned the complainant to advise him that the investigation had been closed. One of the reasons stated for the closure of the investigation was that, allegedly, “torture” had not become an criminal offence in Canada until 1985. 

Public Interest Investigation into the MP failure to investigate

The ‘conduct’ complaint filed with the MPCC alleged that the MP investigator acted with professional negligence and incompetence in failing to investigate serious criminal allegations.

Déjà vu!

This is not the first time that the Military Police has been subject to a conduct and performance complaint to the MPCC. Consider the following:

The Final Report on the Fynes Public Interest Hearing (MPCC-2001-004) contains the results of an MPCC public hearing into the complaints made by Shaun and Sheila Fynes about the Military Police investigations following the death of their son, Corporal l Stuart Langridge. The hearing was extensive; it involved the testimony of some 90 witnesses and the entering into evidence of over 22,000 pages of documentary material.

At the end, the Military Police failed to acknowledge or recognize the serious deficiencies revealed through the hearing.

Following the publication of the Final Report, there were no indication that the Military Police regretted any of the egregious deficiencies observed in this case, particularly in the interactions with the Fynes family and the mishandling of the suicide note.

There was no indication as to whether the issues raised by the MPCC were even seen as serious failures, and certainly no indication as to how, if at all, they would be addressed by the MPs.

All in all, the MP rejected, directly or indirectly, most of the findings and recommendations, made by the MPCC to improve their competence and independence.

Plus ça change, plus c'est la même chose.

Immunity issue to be decided by Jamaica Supreme Court

The validity of certificates of immunity belatedly granted to three members of the Jamaica Defence Force will have to be decided by the country's full Supreme Court, according to this report in The Gleaner. The victim had been shot in the back 20 times. Excerpt:
Justice Glen Brown made the order a short while ago, two days after defence attorney Paul Beswick surprised him, revealing that in 2016, the soldiers were granted immunity from prosecution by Peter Bunting, who was the Minister of National Security at the time.

"It is not for this court to determine the legality of the actions of the Minister of National Security," Brown said in his ruling.

The nation's chief prosecutor Paula Llewellyn had taken issue with the fact that Bunting signed the certificates of immunity six years after [Keith] Clarke was shot and killed inside his home in Kirkland Close, St Andrew.

She described the move as "a most unusual exercise of authority."

Brown said within three months, any interested party may seek a judicial review of the granting of the certificates of immunity.

He also directed that the case is again called up in the Home Circuit Court on September 17 to determine the next move.

"I agree with Mr Beswick that the proper forum to deal with this issue is the Full Court," said Brown in ordering a stay of the trial.
The accused soldiers are on trial in civilian court. 

Wednesday, April 11, 2018

Budgets and discipline: choose one

DefenceWeb reports on a budget crunch in South Africa with implications for the administration of justice. Excerpt:
According to the Department of Defence annual performance plan for the current year the budget allocation for legal services is more than R47 million less than the requested – and approved – amount of R297 841 000. This includes R56 million plus for the Military Ombud office, headed by retired lieutenant general Temba Matanzima.

The performance plan has it that both the human resource component and operating means required for the administration of military justice “will be severely impaired and will result in increases in backlog cases and cases of fraud and corruption”.

“This will result in a military discipline system or structure unable to support the Constitutional imperative of ‘managing the defence force as a disciplined military force’.”

No "hobnobbing" or "being partisan" during Nigeria's elections

"I have directed for a special Standing Court Martial to be set up in preparation for the coming 2019 elections."

"I must warn that any Nigerian Army personnel found hobnobbing with politicians or being partisan will be investigated and sent to the Special Standing Court Martial."

"I must state clearly that any officer or soldier who wishes to be sympathetic to political, religious or ethnic cause should voluntarily retire from the Nigerian Army," [Chief of Army Staff, Lt.-Gen. Tukur] Buratai said.

He also restated the ban on any form of worship outside the barracks except those permitted for wedding and other social functions.

“Therefore, officers and soldiers must restrain themselves from any act of political, religious or ethnic patronage as these would attract severe consequences,’’ he said.

From this report in Vanguard.

Immunity and impunity in Jamaica

What happens when military personnel shoot the wrong person during a state of emergency? A case in Jamaica raises the issue of certificates of immunity, phrased as follows:
“I hereby certify that the actions of JDF (Jamaica Defence Force) Corporal Odel Buckley on May 27, 2010 between the hours of 12 am and 12 pm at...Kirkland Close, Red Hills, St Andrew, which may have contributed to or caused the death of Keith Clarke, were done in good faith in the exercise of his functions as a member of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest.”
 The validity of the certificates issued to three members of the JDF will be decided by either a single High Court judge or the full court.