Thursday, May 31, 2018

Rare trial for Myanmar officer

Radio Free Asia reports here on a rare instance of an Army officer being prosecuted. The officer killed a civilian in the course of investigating a domestic dispute. Quaere: why was the Army involved in the first place -- and why shouldn't the case be handed in the civilian courts? Excerpt:
Major Aung Ko Ko Min, an officer from the army’s Light Infantry Unit 587, was charged with the murder of Tin Soe Myint, a resident of Ale Sait Village on Kalar Gote Island in Ye township on May 15, officer Myint Win from the Ye township police force told RFA’s Myanmar Service.

Khin Swe Tint, the dead man’s wife, reported the killing to the Lamine Region Police Station, requesting that action be taken against the soldier, he said.

The army has taken Aung Ko Ko Min into custody and has begun an investigation, he said. The officer will be tried in a military court.

“The villager Tin Soe Myint got into a fight with his father-in-law [who] reported the fight to the Light Infantry Unit 587,” Myint Win said.
The story explains:
The case is a rare instance of an army officer being held accountable for a crime despite decades of Myanmar’s powerful military acting with impunity, especially in areas affected by ethnic conflict and civil war.

The country’s 2008 constitution, drafted by a military junta in power at the time, guarantees that soldiers are immune from prosecution by civilian courts — a protection that gives local authorities little impetus or power to bring the perpetrators of crimes to justice.

Wednesday, May 30, 2018

No nexus in PNG case

Why is this case being addressed, even in part, by Papua New Guinea's military authorities? The accused makes a good argument: off-duty, off-base, out of uniform, no military assets used, no other military personnel involved, civilian putative victim.

Can these data be real?

The chief military prosecutor has some eye-popping numbers for crimes by Ukraine's military personnel. According to this account from 112.UA News Agency:
Ukraine's Chief Military Prosecutor Anatoly Matios reported that annually the soldiers commit about 20,000 crimes. He claimed this at the briefing dedicated to the military justice and the perspectives of its reforming in Ukraine broadcasted by 112.ukraine.

Matios noted that the crime rate among the soldiers has increased sharply since 2014 and remains to be stably high.

The total amount of the criminal proceedings investigation by the investigators of the military prosecutor's office in 2015-2017 is more than 20, 000 per year. Averagely, there were from 24,000 up to 20, 3000 cases in different periods of time', he reported.

According to him, as for today, 5, 200 military crimes are investigated by the military prosecutors since the beginning of 2018.
It's not clear if the data include minor disciplinary infractions or only criminal conduct. 

Double-header in Fiji

Fiji is fixing to conduct two courts-martial, one arising from a rape and another from the 2016 grounding of RFNS Kiro on Cakauyawa Reef. Details here from The Fiji Times. It appears that matters were delayed while arrangements were made for a suitable judge to preside.

More questions raised about Canadian military justice

Some fundamental structural questions were raised in a Canadian Senate hearing on Monday about sex offenses in the Canadian Armed Forces. Charlie Pinkerton reports here in iPolitics:
“Will you assure women victims that there will be equality between men and women on juries (in the military justice system)?” Conservative Sen. Pierre-Hugues Boisvenu asked the witnesses in French.

“There’s no rule currently that says that when there’s such and such a victim, or somebody from such and such a community, that somebody must have such and such representation on a (panel). The rules are random,” Col. David Antonyshyn, Deputy Judge Advocate General of the Military Justice Department of National Defence and the Canadian Armed Forces, replied.

Military procedure dictates that the representation of a court martial panel is established based on the rank of the accused member. Panel members of the appropriate rank are selected at random by an administrator located within the office of the Military Chief Justice. . . .

How military panels are selected wasn’t the only procedure senators questioned, with Boisvenu wondering whether victims of sexual misconduct can choose which justice system their case is heard in.
Coupled with yesterday's report by the Auditor General of Canada, it seems reasonable to expect Parliament to maintain an unusually high level of interest in military justice. The question is whether (and how) the Judge Advocate General and the Department of National Defence will be able to get out in front.

That Indian case is not going away

Manoj Joshi has this essay on the latest case involving Indian Army Major Leetul Gogoi (he of the human shield incident). Excerpt:
Major Leetul Gogoi’s latest escapade is nowhere near as serious as his first claim to infamy. He was briefly detained after an altercation at a Srinagar hotel over the establishment’s refusal to allow him into his room with a young Kashmiri woman. The woman told a magistrate later that she accompanied Gogoi of her own free will. At this level, the incident could well be a romantic assignation between two consenting adults. But given Gogoi’s past, questions remain. In any case, it was most indiscreet – if not dangerous – for him to go to a downtown Srinagar hotel to meet the woman.

The army has set up a court of inquiry into the incident and no doubt the first question the major would have to answer is how he was in Srinagar, where the army has no counter-insurgency role.

There are, perhaps, bigger questions over what kind of a relationship Gogoi had with the girl who is just about 18 years old. She is from a poor family and lives in a village outside Srinagar. Given the way the army looks at these things, there will also be issues about Gogoi’s marital status.
Stay tuned.

Choosing between the suppression of sexual assault and unlawful command influence

Jared Keller
Jared Keller, a senior editor at Task & Purpose, has written this provocative essay for Pacific Standard, suggesting that the doctrine of unlawful command influence stands in the way of effective steps to suppress sexual assault in the U.S. armed forces. He refers to UCI as "another cancer brewing with the confines of" the military, and points to the "sick irony" that a doctrine intended to help military personnel is doing the opposite. After mentioning several recent cases, he concludes:
When it comes to sexual assault specifically, this expanding interpretation of UCI has major consequences: that those commanders who often dismiss (or are subject to) allegations of sexual assault and abuse can simply shrug off the responsibility of charging their colleagues the minute any high-ranking government official talks at all about any related case. And in a world drowning in media, that means any offender has a trove of evidence of apparent UCI.
Comments invited; real names, please.

Tuesday, May 29, 2018

Auditor General reports on Canadian military justice

The Auditor General of Canada today released this report on the Administration of Justice in the Canadian Armed Forces. The AGC came to two conclusions:

3.87 We concluded that the Canadian Armed Forces did not administer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases. In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases.

3.88 We also concluded that the Office of the Judge Advocate General did not provide effective oversight of the military justice system and did not have the information needed to adequately oversee the military justice system.
The report makes nine recommendations, all of which were agreed to by National Defense. Cristin Schmitz wrote this for The Lawyers Daily:
If Auditor General Michael Ferguson’s May 29 report card examining the timeliness of case processing, and the efficiency and operation of the CAF’s military justice system, in the fiscal year ending March 31, 2017, were to be summed up in a single letter grade, arguably it would be “F.”

What Ferguson’s auditors found in their year-long and first-ever review of the Canadian military justice system will be an eye-opener for lawyers whose only acquaintance with the military justice system comes from reading the JAG’s annual report, but military law cognoscenti will be less surprised by the negative assessment of a system which has been under fire for delays and other problems — both from within and without — for many years.
Comments from Canadian readers are invited (real names only, please). The question is: what happens in light of this report? Parliamentary hearings?

Military law bookshelf

A second edition of Morten Bergsmo & SONG Tianying (eds.), Military Self-Interest in Accountability for Core International Crimes has just been published, and is available for download here. The editors write: "The second edition of this anthology is expanded with a new Chapter 17 by Professor René Provost on 'Accountability for International Crimes with Insurgent Groups'. Our Chapter 1 has been modified."

Congratulations to the editors and publisher Torkel Opsahl Academic EPublisher for making this important volume available. The contributors are a Who's Who in the field.

Free speech and retired officers: a case from Pakistan

The Pakistan Army has convened a court of inquiry to look into possible court-martial charges against a retired lieutenant general who headed the country's intelligence service and recently co-authored a book with his former Indian opposite number. Details here, from Dawn. The government has also barred the retired general from leaving the country. Excerpt from the news report:
The military is taking it as a potential case of violation of ‘Military Code of Conduct’, which it says is applicable to all serving and retired military personnel. Section 55 of the Military Law, which relates to “conduct unbecoming of an officer” is considered to have a very wide scope.

The court of inquiry would look into the book and determine if its content and Mr Durrani’s involvement with the book was culpable and then based on its findings it would make recommendations to the army chief on how to proceed further with the matter.

In the worst-case scenario, former military officers fear, court martial proceedings could be initiated against him. If the army chief determines that there is sufficient ground to start court martial, then the process would begin with the recording of the summary of evidence.

“It is the first stage in the process in which the court would examine the available evidence and find if some wrong has been committed,” a retired military officer explained, adding it was more of an official inquiry.
Military jurisdiction has been exercised over retirees in a variety of countries for the purpose of quelling dissent. Human rights jurisprudence limits the exercise of military jurisdiction to serving personnel.

Judicial heartburn in Delhi

Who (aside from Indian Army personnel and veterans) knew that the Military Nursing Service is composed only of women? It was news to a Delhi High Court bench, whose members directed the Army to explain. Details here. Excerpt:
“It is very antiquated, very stereotyped. How can you have an entire nursing branch without any males, especially in the Army,” the bench observed.

Here we go again

A former member of the Ugandan Parliament has filed a habeas corpus petition in the High Court contesting his detention by the military and trial before a court-martial. Interestingly, one of his arguments is that the Director of Public Prosecutions is barred by the Constitution from prosecuting cases in courts-martial. Details here.

Uganda is one of the world's leading violators of the human rights principle that civilians should not be tried by military courts.

Monday, May 28, 2018

Mexican reforms summarized

It's from 2014, but still worth having: a summary of Mexico's military justice reforms, from the Office for Human Rights and Democracy of the Ministry of Foreign Affairs, available here. Excerpt:
It is important to emphasize that prior to the adoption of the aforementioned amendments, the Mexican Supreme Court of Justice issued criteria that restricted military jurisdiction for crimes against military discipline only in cases not involving civilians. Also, the Office of Military Justice has been following the practice of declining jurisdiction in favor of the civilian authorities.

World War I military justice

Memorial Day is a good time to bring to readers' attention a 2014 essay on military justice during World War I, by Steven R. Welch of the University of Melbourne. It is part of 1914-1918-Online, International Encyclopedia of the First World War. Excerpt:
This essay offers a comparative survey of the practice of military justice among several of the key belligerent powers. Accused soldiers enjoyed little in the way of legal protection, and punishment was generally swift and often harsh. Decisions about the severity of punishment could vary considerably from case to case depending on the current war situation and the state of morale and discipline in selected units. Thousands of soldiers were executed by firing squad for the crimes of desertion, mutiny and cowardice. The primary purpose of military justice was to maintain soldierly discipline; achieving justice in individual cases was a secondary concern.

Non-state actors' courts

The International Committee of the Red Cross has posted on its website a fascinating 2017 Swedish decision that addresses, among other things, the standards that apply when an armed group (non-state actor) -- here, the "Suleiman Fighting Company" -- purports to administer justice. The Stockholm District Court's decision in Case No.: B 3787-16, Judgment of 2017-02-16, together with ICRC discussion notes, can be found here. Excerpt:
v. Legal issues – establishment of courts and fair trial

a) Can non-state actors establish courts?

[…]

26. It follows from CA [Common Article] 3 that a soldier captured during a non-international armed conflict may not be executed without a prior judgement, pronounced by a regularly constituted court, which in the administration of justice provides those guarantees considered indispensable by civilised people. The expression “regularly constituted court” could give the impression that only a state can establish a court of this nature. Such an interpretation would also be in line with both the principle of sovereignty and the principle of legality; nullum crimen sine lege; nulla poena sine lege (no crime or punishment without law). However, the previous commentary by the International Committee of the Red Cross (ICRC) on CA 3 specified that the scope of application of the article should be as broad as possible. For example, text limiting the article to civil, colonial and religious war was not included in the final version of CA3. More detailed guidance on how the requirement of a regularly constituted court is to be interpreted was, however, not provided in the previous commentary on CA 3. Even though the wording of the article and the associated commentary do not give exact answers, guidance on how to interpret the requirement can be sought in other sources. The meaning of this term has been clarified in developments subsequent to the adoption of the Geneva Conventions in 1949, for example in the context of the APs [Additional Protocols] I-II and the Rome Statute.

27. Article 75 of AP I sets out the requirement for a court to be impartial and regularly constituted. The ICRC Commentary specifies that the additional requirement in Article 75 AP I that the court must be “impartial” serves to emphasise the importance of an impartial court, even in situations of serious armed conflict. Even though AP I regulates international armed conflicts between states, it is the opinion of the District Court that the text of the article and the ICRC Commentary indicate a change in focus from the question of how a court is established to an assessment of whether a court respects fundamental guarantees of due process. Such a change in focus is confirmed in Article 6 of AP II, which states as the sole requirement that a court must offer the necessary guarantees of independence and impartiality. The ICRC Commentary provides that the requirement for the court to be regularly constituted has here been replaced by a requirement of independence and impartiality; it was considered improbable that a non-state actor could establish a regularly constituted court. Article 8.2.c.iv of the Rome Statute similarly contains a requirement for a regularly constituted court. In the "Elements of Crime" – a non-binding commentary for the interpretation and applicability of the Rome Statute’s articles – it is stated that the reference to a regularly constituted court means a court that fulfils the fundamental requirement of independence and impartiality, and moreover that the court can guarantee all other legal rights generally recognised as indispensable in international law.

28. In addition to the above, there is also reason to refer to applicable customary international law. The ICRC has undertaken a study of the rules of customary international law. In relation to Rule 100, the study specifies that no person may be convicted or sentenced other than by means of a fair trial, respecting fundamental legal rights. In the study the ICRC discusses the procedural requirements based on customary international law, stating that the requirement that a court be regularly constituted implies that it must be constituted and established in accordance with the laws and procedural rules which apply in a specific country. However, the emphasis in the proposed rule, as in its commentary, is on the requirement for the court to be independent and impartial.

29. In his hearing before the District Court, associate professor Mark Klamberg pointed out that there is an inherent contradiction in CA 3 in that the article clearly prohibits actions involving violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. Since the article is applicable in non-international armed conflicts, this also implies that non-state actors are required to maintain discipline in their own armed units. If the requirement for a court to be regularly constituted were to be interpreted strictly in accordance with the principle of sovereignty, it would render such control of military units impossible. According to Mark Klamberg, the implication is that a non-state actor must be able to establish courts to maintain discipline among its own units. The District Court shares Mark Klamberg’s opinion in this regard.

[…]
31. The above leads the District Court to reach the same conclusion as expressed by Mark Klamberg in his testimony. In a non-international armed conflict a non-state actor can establish courts in order to (1) maintain discipline in the actor’s own armed units and (2) to maintain law and order in a given territory which the actor is controlling, provided that the courts are staffed by personnel who were, prior to the outbreak of the conflict, appointed in accordance with the applicable rules as judges or clerks in the judiciary, and that the court applies the law that was in force before the conflict began – or at least does not apply legislation that is significantly more severe than that which was in place before the outbreak of the conflict.
b) What is implied by the requirement for independence, impartiality and fair trial 
[…]

33. An independent court partly presupposes that there is a separation of power; the decision-maker should be structurally independent of other state actors to prevent unjustified involvement in the judicial process. Its function and competences should be clearly specified in law, and it should also have exclusive jurisdiction over questions within its competence. The judges’ terms of employment must be such as to protect individual judges against threats or any other external influence. With respect to the requirement of impartiality, it aims at preventing bias and to ensure that the judge does not in any other way take extraneous factors into account. Although independence and impartiality are two separate legal principles, they are mutually dependent in that they aim to ensure that the accused receives a fair trial where the judgement is not a foregone conclusion.

Sunday, May 27, 2018

Court Martial or civilian trial for New Zealand senior officer?

The question of whether alleged offences by senior officers should be tried by military or civilian courts, discussed in this blog earlier today in an Indian context, has also arisen in the New Zealand media in recent days in the case of Commodore Fred Keating, RNZN (Retd).

The article, citing an "unnamed source" inside the NZDF, suggests that Commodore Keating should have been kept in the regular force and faced trial in the Court Martial, rather than being prosecuted in the ordinary criminal courts as a retired officer, which is what is actually happening. One of the factors that the article does not take into account is the practical difficulty of empanelling military members for a trial in the Court Martial of New Zealand, where the accused is a flag or general officer. In most cases, the Court Martial must sit with a panel of three military members. The Registrar of the Court Martial assigns those members. Under section 24(3)(a) of the Court Martial Act 2007, the Registrar must assign members whose ranks reflect the seniority of the accused unless he "is of the opinion that it is not reasonably practicable to do so". By convention, in a case such as Commodore Keating's, that would call for a senior military member who was a two-star (ranks held in New Zealand by the Service Chiefs, Vice Chief of Defence Force and the Commander Joint Forces New Zealand), sitting with two one-stars. That could cause temporary paralysis at senior levels of the NZDF's chain of command. However, the law does allow lower ranking officers to be assigned in order to avoid this. An interesting conundrum...

Rules of engagement challenged

Just Security has an interesting post: Analysis of Israel’s Supreme Court Decision Allowing Lethal Force in Gaza
On May 25th 2018, the Israeli Supreme Court rejected, in a unanimous decision of a three judge panel, a petition by a group of NGOs which challenged the legality of the Rules of Engagement (RoE) employed by the IDF in the violent clashes which took place near the fence separating the Gaza Strip and Israel between March and May 2018.
Some conclusions.
The judgment of the Supreme Court in the Yesh Din case is important in several respects: it is faithful to the traditional view of the Supreme Court that military activity of all kinds, while deserving deference, is justiciable. It reinforces the importance of independent investigations of possible violations of LOAC.
  • However, the Supreme Court’s discussion on international law seems to raises some questions.
  • On the other hand, however, the court’s application of international law is problematic[.]

Where should this case be tried?

FirstPost reports on a tug-of-war between civilian and military authorities in Srinagar over which should take action against an Indian Army officer (previously involved in a controversial human shield incident) who appears to have arranged to meet a young local girl in a hotel. The Chief Judicial Magistrate wants a report from the police; the Army has appointed a Court of Inquiry.

Did we mention the whiff of unlawful command influence?
A senior army official said that Major [Leetul] Gogoi is “guilty of not keeping his seniors informed while moving from his operational jurisdiction in Beerwah in Budgam to Srinagar.”
*   *   * 
On Friday, army chief Bipin Rawat promised exemplary punishment if Major Gogoi is found guilty of misconduct. A senior official said that army officers need to maintain a standard operating procedure (SOP) while carrying out duties in militancy affected areas. “It was not admissible for the Major to meet the girl in the hotel,” said a senior officer.

Civilian doctor in Venezuela's military court

Venezuela is exercising military jurisdiction over a civilian physician, according to this MercoPress report:
José Alberto Marulanda, a surgeon who maintained a romantic relationship with an officer of the Navy accused of attending meetings to execute a military uprising was arrested by uniformed officers of the General Directorate of Military Counterintelligence (Dgcim) on May 20 - elections day-.

El Pitazo reports that it was not until Thursday, May 24, that the civilian doctor was presented before military courts to receive charges. The director of Criminal Forum, Alfredo Romero, noted that the doctor reported the loss of sensitivity in his hands because he was hanged by handcuffs and had lost his hearing in his right ear for a supposed blow.

Romero denounced that the man was not allowed to defend himself at the court, because he was entered into the military complex through the back door. The military judge charged him with the crimes of instigating hatred and treason; the latter is the most serious accusation in the Venezuelan penal legislation, both civil and military.
Human rights jurisprudence strongly disfavors the exercise of military jurisdiction over civilians. Torture violates the Convention Against Torture. 

Saturday, May 26, 2018

Court-martial appellant dies, widow is substituted

The widow of a Nigerian brigadier general who died after having been convicted by a court-martial has been permitted to continue the appeal in her own name. The Supreme Court's reason: she stands to lose a fortune as a result of forfeiture of property ordered by the court-martial. Details here.

Justice has ground on slowly in this case:

Trial ended: Sept. 30, 2005
Notice of appeal filed: May 22, 2009
Death of the accused: Oct. 22, 2014
Widow's application to substitute: Apr. 27, 2015
Supreme Court grants application: May 25, 2018

Free speech and retired officers -- a case from Pakistan

Did a retired general officer violate Pakistan's code of conduct? Here is a first report, but one must assume there will be more about this case.

Dissent by retirees has from time to time caused government officials to crack down by using the military justice system. Cases from Chile, Mexico and Venezuela, for example, come to mind . . .

Human rights jurisprudence disfavors the exercise of military jurisdiction over civilians. Are retirees who are deeply unlikely to ever be recalled for duty civilians for this purpose? The U.S. claims and on rare occasions exercises military jurisdiction over retirees.

Memorial Day 2018

Ball's Bluff National Cemetery, Leesburg, Virginia

The matter does not appear to me now as it appears to have appeared to me then*

Here is an interesting op-ed by Lindsay Rodman, concerning the current Canadian bill concerning, among other things, victims' rights in courts-martial. Her comments on US military justice's provision for victims' counsel are notable. Excerpt:
In the U.S. military, we had a well-established corps of victim advocates, many of whom were licensed clinical social workers, to help victims of sexual assault obtain services and work through the justice process. The fact that they were civilians and the fact that they were not able to advocate in court or with the force of legal argument made victims feel powerless in the process. As such, they clamoured for their own lawyers.

I was dead set against it. The Bill of Rights enshrined in the U.S. Constitution does not envision a third party in criminal trials. The rights of the accused are well understood in the United States, and the assertion of someone else’s rights, by a lawyer, throughout the justice process seemed anathema. I deeply sympathized with the victims in U.S. military sexual-assault cases – as a female Marine it would have been impossible not to. But I also believe deeply in principles of justice and the process, and I feared this would upend the whole system and tip the balance unconstitutionally away from the rights of the accused.

I was wrong. The sky has not fallen. There are still serious questions about implementation of this relatively new legal concept. There is significant litigation in U.S. military courts of appeal trying to sort out when and how the Victims’ Legal Counsels can speak in court on behalf of their clients. But, the system continues to work and the feedback from victims has been overwhelmingly positive.
Andrews v Styrap (1872) 26 LT 704, 706 per Bramwell B.

Friday, May 25, 2018

Court of Military Commission Review on hold for KSM case

Proceedings before the U.S. Court of Military Commission Review in the case of Khalid Shaikh Mohammad et al. are on hold because the court lacks the necessary quorum of three judges who aren't disqualified. Sarah Grant discusses the situation here on Lawfare.

For your military justice bookshelf

We learn of a new book from the Nigerian Army's Facebook page:
The Chief of Army Staff (COAS) Lieutenant General Tukur Yusufu Buratai has today at Nigerian Army Resource Centre in Abuja launched a book tittled "Introduction to Military Law Practice and Procedure" authored by Col BU Okorie (Rtd).

COAS in his remarks noted that the launching of the book couldn't have come at a better time than now the Nigerian Army is engaged in counter insurgency and other forms of internal security operations in many parts of the country and is required to continue to maintain a high level of disciple which necessarily goes with trials of erring personnel.

The Chief of Army Staff further stated that the book simplifies Summary and Court Martial Trials which make up the major aspect of Military Justice System in Nigeria. He also said the book can serve as a practical guide to commanders at different levels who conduct summary trials and also can guide members of court martial on a step by step basis on what is required of them.

In his vote of thanks, the Author of Book, Col BU Okorie (Rtd) thanked immensely the Chief of Army Staff for not only launching the book but has also promised to ensure that every commander in the Army gets a copy of the book. He also expressed gratitude to the Director, Legal Service (Army) Brig Gen Yusuf Shalangwa for his support and other dignitaries that graced the occasion.

Thursday, May 24, 2018

Sorry, wrong courtroom

A civilian's challenge to the jurisdiction of Uganda's court-martial has been dismissed because it was filed with the High Court's criminal division rather than its civil division. Details here. Presumably the case will now be refiled in the proper court.

Uganda regularly prosecutes civilians in courts-martial, notwithstanding human rights jurisprudence that strongly disfavors the practice.

New round of trials in Tunisia -- but there are big issues to resolve

Human Rights Watch has issued an excellent report on a new round of trials in Tunisia, in cases that had previously been tried by flawed military courts (with lenient outcomes). But the new round of trials raises other questions, such as the application of double jeopardy principles and the principle of commander responsibility. Excerpt:
One issue that may arise is of the principle of “double jeopardy” – that is, that defendants have a right under international law not to be tried twice for the same offense. The United Nations Human Rights Committee has stated that this principle is not breached where a higher court quashes the verdict and orders a new trial, or where the trial is reopened due to exceptional circumstances such as the discovery of new evidence. Under the Rome Statute of the International Criminal Court (to which Tunisia is a party), trials before the ICC where someone has previously been tried in another court are not considered to violate this principle, if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in a manner designed to avoid the person being brought to justice.
The military court tried the defendants for the conduct of security forces under their command. However, Tunisian law is not well-equipped to address command responsibility, a key concept in international criminal law that makes commanders and civilian superiors liable for serious crimes committed by their subordinates if the superiors knew, or had reason to know, of the crimes and failed to take all reasonable steps to prevent or punish them. The Specialized Chamber should take into consideration the customary international law concept of command responsibility when trying the case. Tunisian legislators should also introduce a new provision in the penal code on command responsibility consistent with its definition under international law and incorporate the Rome Statute into domestic legislation.

Egyptian military court jails civilian journalist

Business as usual in Egypt: a military court has handed down a 10-year sentence to a civilian journalist. Details here. Excerpt:
A military court sentenced on Tuesday independent journalist and researcher Ismail Iskandarani to 10 years imprisonment on charges of joining an illegal group and reporting about the opinions of Sinai-based tribes concerning the performance of the armed forces.

Another defendant also received the same sentence.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Egypt is one of the world's leading violators of this principle.

Why was Harvey Rishikof fired (and was it unlawful command influence)?

Col. James L. Pohl
Military Commission Judge 
The Miami Herald's Carol Rosenberg reports here on an order by a Guantanamo military commission judge requiring Pentagon lawyer William Castle and former convening authority Harvey Rishikof to testify in July on a defense unlawful command influence motion. Excerpt:
[Col. James L.] Pohl also ordered the Pentagon to provide the job descriptions of Rishikof and his legal adviser, Gary Brown, who was also fired and the Dec. 13, 2017 memo that supposedly discussed proposing guilty pleas as well as three other documents related to Rishikof's job.

During a May hearing, Pohl openly wondered whether, as a Pentagon appointee, Rishikof served at the pleasure of the secretary of defense or, because there was no time-limit on his hiring, it was a lifetime appointment "absent personal misconduct," like a federal judge. . . .
A separate defense motion seeks dismissal of the 9/11 case based on tweets from President Donald Trump.

Meanwhile, the U.S. Court of Military Commission Review has ground to a halt since the court's non-disqualified members have fallen below the minimum of three required by the Military Commissions Act.

Wednesday, May 23, 2018

Criminal defamation in Lesotho (herein of spring chickens)

And now for something completely different.

The Constitutional Court of Lesotho, in a landmark decision, has invalidated the statute making defamation a crime. The decision in Peta v Minister of Law, Constitutional Affairs and Human Rights and Others (CC 11/2016) [2018] LSHCONST 251 (18 May 2018), is available here. Excerpt:
Applicant is the owner and publisher of a popular weekly newspaper, the Lesotho Times. In the 23rd – 29th June 2016 issue of the same newspaper, he published an article headlined “Flicker of hope for my beloved kingdom…” This article appeared in a concomitant satirical section titled the ‘Scrutator’. The ‘Scrutator’ column satirizes current affairs in Lesotho by using humor, irony and exaggeration “to expose and criticise shortcomings of an individual or society.”

The article in issue related to the then-Commander of the Lesotho Defence Force, Mr Tlali Kamoli. The article detailed how Mr. Kamoli in an apparent show of power and influence, ordered Ministers and the then-Prime Minister to do ridiculous and plainly absurd things. In one respect it said:

“An interesting story had been doing rounds around Maseru, it goes like this. During one of his moody days, Tlali Kennedy Kamoli pitched up at a cabinet meeting unannounced. He then forced the chairman, Ntate Mosisili, to halt proceedings half-way through. The Premier dutifully complied.

The reason for Ntate Kamoli doing all this, the story goes, was because he wanted to show who is indeed the mighty King of this country. He wanted to prove where real power resides. King Kamoli then ordered all male ministers to remove their vests and shirts and move into the grounds of State House to each perform a 100 press ups.

Younger cabinet members like the ever-indefatigable Selibe Mochoboroane and Joshua Setipa quickly stripped off their vests, exposing their well aligned six packs. In less than a minute Mochoboroane and Setipa had each completed their hundred (100) press (push) ups! The older members of the cabinet struggled. Ntate Mosisili could not complete in the first minute but finished in the third. Ample proof that he is still a spring chicken and fit to be Prime Minister.” [Footnote omitted.]
Held,
The foregoing discussion has brought to the fore the deleterious effects of criminal defamation in section 104 read with sections 101, 102 and 103 of the Act. The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effects on the freedom of expression, and that, civil remedies for reputational encroachment are more suited to redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.” Having concluded thus, what remains is the relevant order that this court should make. In terms of section 22(1) (6) of the Constitution, this court “may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution”. Mr. [Gilbert] Marcus [attorney for the applicants] had argued that the only appropriate order in the circumstances of this case is to declare section 104 of the Act inconsistent with the Constitution and to strike it out. I am in full agreement that section 104 and its accompanying sections should be struck down altogether, this is in view of the fact that these sections are so inextricably linked, and further that, the crime of defamation has no place in our current Constitutional dispensation.
Moral of the story: you won't go to jail any longer in Lesotho for recounting stories that make the Defence Force Commander look silly. 

Tuesday, May 22, 2018

Do new rules "make a mockery" of the Armed Forces Tribunal?

Major General (R) Harsha Kakar, writing for The Statesman, has offered this strongly critical review of new rules affecting India's Armed Forces Tribunal. Excerpt:
The new rules have reduced tenure of members from five to three years. It appears, when linked up with the other amendments, aimed at opening doors for ex-secretaries of the government, who retire at 62, to be nominated to the AFT, for which they would otherwise have been barred.

These amendments, which would alter the functioning of the AFT and make it useless for the task for which it was created, angered many veterans who practice in AFTs and they approached the Supreme Court. The court’s final determination is likely in July.

The bureaucracy, worried about a possible court rebuff, advertised for vacant posts based on its amended rules. It is now seeking the court’s permission to go ahead with the selection. If it succeeds, the AFTs would become just another example of the government’s apathy to serving and veteran military personnel.

A fallout of the case has been that unless court orders are finally issued, no fresh appointments can be made. Hence most AFTs are either non-functional or those with multiple benches have just one functional bench. This has impacted clearance of cases.

The sole reason for creating the AFT is now being lost. The government which has denied the forces various facilities is now seeking to make the AFTs redundant. It will require a concerted effort by all who support the military to pressurise the government against making a mockery of an institution created to speed up justice.

Military justice bureau proposed for Ukraine

Anatoliy Matios, Ukraine's chief military prosecutor, has called for creation of a State Bureau of Military Justice, according to this report.
“I persistently urge society and lawmakers to create (in analogy with the NABU) the State Bureau for Military Justice. In the warring Ukraine, the military prosecutor’s office must be authorized to fully monitor the observance and application of laws in all military formations. This right should be secured at least temporarily, for the period of the Joint Forces Operation and the law on the peculiarities of the state policy on securing Ukraine’s state sovereignty over temporarily occupied territories in Donetsk and Luhansk regions,” he wrote.
The proposal will be considered at a conference next week:
Matios noted that the bill on the State Bureau for Military Justice would be presented to the public and experts in Kharkiv on May 29-30 during an international conference “Reforming Military Justice System in Ukraine: The Current State and Prospects.” An expert assessment of the document will be given by experts of military justice from more than ten countries who will take part in the event.

Monday, May 21, 2018

Algerian reform bill

A major bill to reform Algeria's military justice system has been introduced in the National People's Congress. Details here (en français--the English version is behind a paywall). Among the changes of interest: state security cases involving civilians will now be tried in the regular courts and the military justice system will be subject to oversight by the Supreme Court.

Sunday, May 20, 2018

Are you a military prosecutor?

If so, you should check out the Network for Military Prosecutors, a project of the Hague-based International Association of Prosecutors. The website can be found at www.iap-association.org/NMP. From the site:

The responsibility for the prosecution of cases concerning military personnel varies across jurisdictions. In some countries, prosecuting offences committed by military personnel is left to the respective military Justice system whilst others choose to entrust the civilian Justice system with this important task.

The Network of Military Prosecutors seeks to embrace and provide a forum for discussions and exchange of experiences for prosecutors involved with military prosecutions, whether they are civilian or military.

Bruges, anyone?

The Belgian Group of the International Society for Military Law and the Law of War and the Centre d'Etude de Droit Militaire et de Droit de la Guerre are sponsoring a conference titled Silent leges inter arma? on September 18-21, 2018 in Bruges. There is a sizable discount for members of the Society (and for early registration). For further information, click here.

Friday, May 18, 2018

Ciardi Prize awarded to Dr Francesca Capone

Drs Giovanna Ciardi & Francesca Capone
This year's Professor Giuseppe Ciardi Foundation Ciardi Prize was awarded today to Dr Francesca Capone at the 21st Congress of the International Society for Military Law and the Law of War for her 2017 book "Reparations for Child Victims of Armed Conflict -- State of the Field and Current Challenges." Congratulations, Dr Capone!

By the numbers (and more)

This is the 4300th post on Global Military Justice Reform. While we are running the numbers, there have been 587 comments since our launch in January 2014. As of today, there have been 560,601 hits on the site, from readers in 182 jurisdictions. Like other social media, Global Military Justice Reform has been targeted by Russian bots. Thanks for the compliment, sort of.

Today is the final day of the International Society for Military Law and the Law of War's 21st Congress, held this week in Lisbon. Approximately 150 people participated in the program, which included plenary and breakout sessions, as well as the Society's required General Assembly and Managing Board and Board of Directors' meetings. There are lots of plans in the works for future events sponsored by the Society as a whole and by national groups. Check the Society's website for details. Read about the Belgian group's exciting September 18-21, 2018 Silent Leges Inter Arma program in Bruges here.

Thursday, May 17, 2018

New Air Force JAG Corps officer breaks new ground

1LT Maysaa Ouza, JAGC, USAF
The U.S. Air Force has granted a religious accommodation to a new JAG Corps officer, permitting her to wear the hijab. Congratulations to First Lieutenant Maysaa OuzaHere is the American Civil Liberties Union's account.

Why is this case in military court?

A Russian military court has convicted three Tajik citizens and one Moldovan citizen on terrorism charges, according to this report.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Uganda, Cameroon, Lebanon, Bahrain, Egypt, Tunisia, and Pakistan are among the countries that currently violate this principle.

Brig. Gen. Spijk honored at ISMLLW Congress

Brig. Gen. Jan Peter Spijk
Brigadier General (R) Jan Peter Spijk was honored tonight at the International Society for Military Law and the Law of War's Congress in Lisbon. He is being succeeded as president by Prof. Dr. Wolff Heintschel von Heinegg of Germany. Congratulations to both!

When not to lay charges

What if the person laying military charges does not have a reasonable belief that the charged offenses had been committed? The resulting conviction is overturned, according to this case in the Court Martial Appeal Court of Canada.

Monday, May 14, 2018

Where should this case be tried?

The Zimbabwe National Army is refusing to turn over to the police six soldiers accused of a major (2000 kg) gold ore heist, as reported here by NewsDay. A civilian court has ordered them to be handed over.

Capt. Medina dead at 81

Capt. Ernest L. Medina
Captain Ernest L. Medina, who was acquitted in a U.S. Army court-martial following the My Lai massacre in Vietnam, has died at age 81. His subordinate, Lieut. William L. Calley Jr., was convicted in a separate trial. Richard Goldstein wrote this obituary in today's New York Times. Capt. Medina was defended by F. Lee Bailey and Army JAG Corps lawyers.

Sunday, May 13, 2018

The back story on Canadian legislative proposal?

CTV News has a story that raises a tantalizing question about the timing of the Canadian government's introduction of a military justice reform bill:
These reforms to the military justice system come just weeks before Auditor General Michael Ferguson is to issue his findings after examining the Forces' administration of military justice and the amount of time it takes for cases to work their way through the system.
Canadian readers: what's going on? 

International Society meets this week in Lisbon

The International Society for Military Law and the Law of War will hold its 21st Congress this week at the Altis Hotel in Lisbon. Among the topics:

  • The Use of Armed Forces in Domestic Situations
  • Accountability and Responsibility in Peace Operations
  • Protection of Civilians in Peace Operations
  • Aerial and Maritime Dimensions of Peace Operations
  • International Criminal Responsibility and International Criminal Justice in Relation to Peace Operations
  • The History and Future of Peace Operations Explained to Lawyers
  • The Duty to Rescue at Sea
  • Monitoring Compliance in the Field of Conduct and Discipline, and Combating Sexual Exploitation and Abuse in Peace Operations
  • Third Party Claims in Peace Operations: History and Future
  • Launch and Introduction of the Handbook of the Law of Visiting Forces (2d rev. ed. 2018)
  • The Soldier's Right to Life and the Soldier's Individual Right to Self-Defence
  • The Applicability of IHL in Peace Operations
  • The Applicability of International Human Rights Law in Peace Operations
  • The Future of Warfare and the Associated Legal Dimensions
  • Detention in Peace Operations
  • Implementing a Gender Perspective in Peace Operations
  • Demining and Removal of Explosive Remnants of War in Peace Operations
  • Recent Trends in International Security and Portuguese Law
  • ICRC Commentaries on Geneva Conventions I and II
  • Award of the 2018 Ciardi Prize
It's an understatement to describe this as an ambitious program. If you are reading this blog, you should be a member of the Society -- and be attending this conference.

N.b. Global Military Justice Reform is not affiliated with the Society.

Saturday, May 12, 2018

The Spears & Eliades order

The D.C. Circuit's order in  Spears & Eliades v. United States can be found here. Of particular note:
FURTHER ORDERED that the government submit to the court by Noon on Monday, May 21, 2018, in accordance with procedures governing classified information if warranted, a declaration describing any and all intrusions that have occurred, may have occurred, or that the government believes foreseeably could occur into the confidentiality of (i) petitioners’ communications with their client, (ii) petitioners’ communications with other lawyers, legal personnel, support personnel, or third parties as part of their representation of their client, or (iii) petitioners’ legal work product, legal files, or legal records (electronic or otherwise). In addition, the government is directed to submit to the court: 
(1) Any classified or unclassified information provided by the government to Brigadier General John G. Baker, in his capacity as Chief Defense Counsel for the Military Commission Defense Organization, regarding alleged breaches, accidental or otherwise, of attorney-client confidentiality and/or work product privilege pertaining to the representation by attorneys under his supervision of detainees at Guantanamo Bay, Cuba (see generally Oct. 11, 2017, Memoranda, Att. B to Exhs. D & E in Pets.’ Corrected Emergency Motion for Stay, No. 18-1087); and 
(2) Documents provided by the government to Judge [Vance] Spath in this case in connection with defendant’s motion to compel discovery regarding potential intrusions into attorney-client confidentiality, including, but not limited to docket entries AE369PP, AE369UU, AE369YYY, and AE369ZZZ.

Friday, May 11, 2018

Steve Vladeck explains it all

Prof. Stephen I. Vladeck
Global Military Justice Reform contributor Prof. Steve Vladeck has posted an invaluable essay on Just Security concerning the state of play in the military commissions. His bottom line: "The commissions are a total mess." See if you agree.

Click here for a tweet that includes a critical interim ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit.

Not a panacea but a big step in the right direction

BIG STRUCTURAL CHANGES AHEAD

Big changes are afoot on the Canadian military justice file, and it's not all bad news.

SUMMARY TRIALS ARE ABOLISHED

First, on Thursday May 10, 2018 the Minister of National Defence introduced Bill C-77 entitled An Act to amend the National Defence Act and to make related and consequential amendments to other Acts. If enacted, this Bill will introduce significant changes to the military summary trial system; reforms that critics of the military justice system, including this author, has advocated for over the past decade and more. It will decriminalize the summary trial system. Summary trials will become disciplinary in nature and will no longer have the powers of punishments that include detention and other penal consequences.

VICTIMS' RIGHTS ARE NOW RECOGNIZED

But there is more. Bill C-77 will also amend the National Defense Act to provide rights to victims of crime and will also put into force significant reforms to the court martial system. Going forward, victims of crime in the military will no longer be exempt from the Canadian Victims Bill of Rights. This victim may also have a Liaison Officer who will be able to explain to the victim the operation of the courts martial and provide him with the information relating to a service offense to which he is entitled. While this is a step forward, it falls short of the recommendation that such victims also have access to legal advice during the reporting, investigation and prosecution of such a crime against the person.

REMAINING PROVISIONS OF BILL C-15 WILL BE IN FORCE ON 1 SEP 2018

Third, many changes from the Military Justice for the Defense of Canada Act, which received Royal Assent on June 19, 2013, will be put into force. These include:
  • UNCONDITIONAL DISCHARGE etc.  Introducing unconditional discharge, intermittent sentences and restitution orders as punishments available at court martial. A court martial will be also be able to absolve an accused convicted of an offense for which there is no minimum sentence or a maximum sentence of 14 years and over.
  •  INTERMITTENT SENTENCES. The court martial will now be able to order an offender to serve his sentence intermittently. This may enable a reservist from serving his sentence while maintaining his civilian job.
  • RESTITUTION ORDERS.  The court martial will now be able to impose restitution orders, obliging an offender to compensate a victim in cases of material, bodily and psychological damages suffered.
  • IMPACT STATEMENTS. Victims will be able to prepare and read impact statements which shall be considered in sentencing.
  •  CIVIL LIMITATION PERIODS.  The statutory limitation period for bringing an action against the Department of National Defence will be extended from six months to two years.
KUDOS

Commodore Geneviève Bernatchez only assumed the reins as Judge Advocate General (JAG) in June 2017, but in this short time she has seemingly introduced her vision for a new era of military justice. These actions represent a first major step towards modernizing the military justice system. I am hopeful that the proposed changes will go through all stages of the legislative process in short order, thus enabling soldiers to face a military justice that lives up to their courage and bravery.

Thursday, May 10, 2018

Reforms proposed in Ottawa

CBC News reports here on a government bill to reform aspects of the Canadian military justice system. Key topics addressed include summary trials and victims' rights. The text of Bill C-77 can be found here.

Comments from Canadian contributors and readers are especially welcome. (Real names only, please.)

Victims appeal, obtain reopened investigation

Público TV reports here on an interesting case from Spain. Five soldiers died and three were injured in a 2011 training accident involving mines. The matter was closed after an investigation. Now a military court has ordered the investigation reopened based on an appeal by two of the victims, each of whom is now retired.

This case is a useful reminder that investigations remain a key part of the administration of justice in armed forces. The Editor is having trouble thinking of a comparable case in the United States where a victim has been able to sue to force additional investigation in a case that has been closed. Do any come to mind?