Tuesday, October 16, 2018

An interesting Swiss military appeal

The Swiss Armed Forces Attorney General has issued the following news release:
Starting on 5 November 2018, a member of the Border Guard Corps will appear before Military Court of Appeal 2 in Zurich. The appeal hearing will focus on a case heard in the first instance on December 7, 2017; Military Court 4 had found the border guard guilty of attempting to terminate a pregnancy, negligent bodily harm and repeated failure to comply with the service requirements. All parties appealed against the judgment of the Court of First Instance.

On 5 November 2018, a member of the Border Guard Corps will appear before Military Court of Appeal 2 in Zurich. The accusation accuses the border guard of being responsible for the death of the unborn child of a Syrian woman. The border guard was sentenced to seven months' imprisonment and a 60-day fine, both suspended, for attempted termination of pregnancy, negligent bodily injury and repeated failure to comply with service. The Syrian woman was part of a group of refugees who, on July 4, 2014, transited from France to Italy. The Border Guard Corps supervised this group during the journey from Vallorbe to Domodossola.

The appeal hearing will begin at 9 am on 5 November at the Cantonal Court of Zurich, Hirschengraben 15, in Zurich. The hearing is open to the public. It is expected that the hearing will last two days under the presidency of Colonel Maurus Eckert.

Monday, October 15, 2018

Seven, including a Major General, handed out life imprisonment by a Court Martial in India

Justice finally seems to have been delivered leading to closure to the agony of the families of five innocent people killed by troops in the State of Assam in India.

A Summary General Court Martial (SGCM) has convicted seven personnel, including one officer of the rank of Major General (who was holding the rank of Colonel at the time of the incident) and has awarded the punishment of dismissal from service and life imprisonment.

A detailed report has been published by The Tribune.

In the opinion of this author, the correct course would have been to allow a regular Court to try the offenders since the Army Act prescribes a limitation of 3 years for a trial by Court Martial. It is not known as to how the Court Martial has been able to tide over the statutorily provided limitation.

Notwithstanding the above, the punishment once again proves that law has to prevail equally for all, irrespective of rank, and nobody can get away with such grave crimes under the garb of performing duty.

Canadian courts martial; a vestige of the past or a lost cachet?

        In January 2018, the Office of the JAG published a broad policy-based analysis and discussion of Canada's court martial system focused on assessing the effectiveness, efficiency and legitimacy of the current system and presenting a range of representative options for enhancing it.  The detailed assessment concluded that the current court martial system is 'somewhat effective'  and "appears to have considerable room for improvements." The report also provided a comparative study of military justice systems from around the world; as well as an analysis of the high costs associated with running courts martial. 

        The report concluded that courts martial are very expensive and inefficient. 

PROGRESS IS IMPOSSIBLE
WITHOUT CHANGE
In May 2018, the Auditor General also identified a range of problems with the structure and organization of courts martial and its impact on the administration of military justice. This past month the Court Martial Appeal Court [CMAC] made a potentially ground-breaking decision in Beaudry v. Her Majesty the Queen, 2018 CMAC 4, challenging a linchpin provision of the Code of Service Discipline which currently deprives soldiers of their constitutional right to opt for a jury trial. Welcomed as an avant-garde decision, this landmark ruling will soon land in the Supreme Court of Canada [SCC] where the constitutionality of the impugned provision will be decided upon.

But there is more. 

        Specifically, the unconventional architecture of courts martial is more than passé ; however, it has yet to be addressed by internal or external review mechanisms. For this, I present my own observations which flow from my recent attendance at three court martials which I attended as Counsel for victims of sexual assault. My experience as a member of the gallery was disappointing and are the basis for the follow-on first-hand observations.

Solemnity of the military judicial process; a lost art?

Canada has inherited many of its judicial conventions for Court Martials from the British, which were first established under the authority of Charles II in May 1663 in the “Regulations for the Musters” and in the Articles of War in 1673. These conventions serve many purposes. First, to confer judicial authorities with a certain formality or dignity. Second, to draw a distinction between judicial proceedings and those that are disciplinary or administrative. With the passage of time, Canada's courts martial system is showing signs of both fatigue and obsolescence and a certain lack of gravitas.

The look and feel of a courtroom 
is essential to the administration of justice

According to Canadian legal tradition, in court both judges and lawyers must wear long black robes – a historical symbol of a time-honoured system where the exercise of authority in the service of justice is emphasized. These robes (or gowns) remind all those who wear them that they must behave in a manner that preserves the bond of trust between the public and those who administer justice. Lawyers also wear white shirts with ‘barrister tabs’ (two small pieces of white fabric attached to the collar band).

Strangely, military prosecutors and military defence lawyers appearing at courts martial before judges (who are themselves robed) are not required to wear gowns or tabs. In my view, military lawyers, like military judges, should be dressed in a manner that not only confirms the existence of a formal proceeding, but that also promotes the dignity of the judicial process. This is the purpose of gowning, which is one of the well-established and respected legal traditions maintained in all other legal jurisdictions in Canada.

Courtroom organization

Normally, the courtroom is a very hierarchical environment where each person is assigned a specific place. The entire room is organized around a symmetrical central axis with the judge’s bench (normally on a dais) at the front, then the counsel tables on either side of it and a transversal barrier (known at the ‘bar’) that separates the public from the judicial personnel. However, the Court Martial, by appearances alone, is a very poor cousin to the criminal courts. Let me explain.

Few courts martial outside of Ottawa take place in a permanent courtroom facility. In almost every court martial taking place outside of the National Capital Region (where a such a courtroom is located), the local military “chain of command” assumes the unlikely task of temporarily transforming a military quarter into a courtroom and providing each court martial on an ad hoc basis the required administrative services. For reasons steeped in the very distant past, this task is assigned to the accused’s unit commanding officer (CO).

This means that for each court martial, a new unit commander undertakes the onerous task of providing the necessary space to house the judge; prosecutors; defence lawyers; court clerks; waiting areas for witnesses, media representatives and the public; and, equip these spaces with electronic amenities. Overnight, the CO must transform a military facility, usually a conference room or a classroom, into a courtroom. This sort ad hoc procedure present an obstacle to the efficient functioning, decorum and dignity of the court.

Not surprisingly, the standard of excellence varies greatly from one court martial to another. Given that for each court martial proceeding, a neophyte commander tries to transform a military facility into a courtroom, more often than not court martial proceedings are routinely held in cramped quarters that generally lend themselves very poorly to the needs and comfort of the public and true respect for decorum and etiquette expected of a criminal courtroom setting. 

          In most courts martial, the judge sits at eye level to the gallery.  Also, due to limited space, the bar between the ‘public gallery’ and legal professionals is often imaginary, with the accused and lawyers almost blended in with the audience. Yet, this line of demarcation is essential because lawyers must both be vigilant in representing the legitimate interests of their clients and in ensuring they maintain the absolute confidentiality of information received in the exercise of their profession. 

          I have also seen situations where prosecution and defence counsel are barely separated from one another. Worse, a victim is made to testify within a few feet of the accused while

The result is predictable: it is very difficult, if not impossible, to correctly administer justice or observe due decorum during a court martial when it takes place the cramped quarters of a canteen or a classroom.

Public interest is well-served when public and media access is facilitated

         Courts martial are normally held in isolated military garrisons situated in rural areas. 

         Access to any defense establishment is controlled under the Defense Controlled Access Area Regulations (DORs/86-957) allowing the military to conduct the search of persons granted such access. Not surprisingly, this can and probably has a 'chilling effect' on members of the media or the general public wishing to attend these proceedings. For those two reasons alone, nowadays, few members of the public actually attend court martial proceedings.  This makes the public right of access to courts martial illusory, vitiating the ‘open court’ principle leading to a deplorable out of sight out of mind situation.

Court etiquette

          I was also disappointed to find that, in sharp contrast to the rather formal dress worn by members of the public attending judicial proceedings in a civil court, soldiers present at court martial are more often than not wearing camouflage fatigues. Yet, a courtroom is not a combat zone!

Showing respect for the judiciary, the law and the purpose of courts martial proceedings, soldiers in attendance should be required to wear their regulatory service dress uniforms as an equivalent to what is considered to be an appropriate civilian attire for court.

Punctuality

Based on my recent experiences at courts martial, another area of improvement that needs to be addressed concerns punctuality. Best practices followed everywhere else in the Canadian justice system include an obligation for judges - and, obviously counsel - to avoid unnecessary delays, adjournments, suspensions or protracted hearings. Delays are to be used only when there are duly justified grounds. 

          Suffice to say that the punctuality of the judge, whether military or civilian, is a mark of courtesy and respect for all (including litigants, lawyers, soldiers and ordinary citizens).

Cost

There is also very little respect for the taxpayer who foots the bill for the unnecessary costs of court martial proceedings.

            Consider that, at a June 2018 court martial in Edmonton, Province of Alberta, the military judge, the prosecutors, counsel for Defense, counsel for the victim, the court reporter, the accused, the victim as well as one of two witnesses travelled to Edmonton to attend the trial. Ironically, most of them also travelled from the Ottawa region where a full military courtroom is available and underutilized. Instead, the taxpayer funded the travel, accommodation, and meal allowances for these several individuals to assemble in Edmonton.  To what end?

           The taxpayer also footed the bill for approximately 40 soldiers and one DND civilian employee in charge of media relations in attendance for the five-day hearing. There were no member of the public present in court. All these soldiers belonged to the same military unit as the accused. Such high attendance level by soldiers is no doubt a consequence of the court martial being held within the confines of their workplace. It seems that, staging a court martial within their working quarters compelled unit personnel to attend and watch the court martial proceedings; the military considering this as a sort of a training exercise, unit productivity be damned!



                                    JUDICIAL INDEPENDENCE IS A CORNERSTONE 
                                  OF CANADIAN JUSTICE SYSTEM

     The perceived independence of military judges is also problematic. 

      According to the principle of judicial independence, judges should not be subject to any influence, surveillance or any other form of direct or indirect coercion that would call into question their independence and impartiality. They must also ensure that their individual beliefs and values ​​do not bias their decisions. Surely, this applies to civilian and military judges alike. 

      They must always be, and be seen to be, objective and impartial.

Yet, judges presiding over courts martial hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values ​​and Ethics and a host of military regulations, orders and directives. The Chief Military Judge who acts as an officer commanding a command is directly responsible to the Chief of the Defence Staff for the control and administration of his unit. As commissioned officers, military judges also have a range of obligations as set out in the Queen’s Regulations and Orders.  

Military judges cannot, therefore, be perceived as independent as they are not immune to disciplinary constraints or military obligations and regulations. Contrast this with the UK and New Zealand, where courts martial judges are civil magistrates with the required institutional and individual independence. As noted by the former Chief Justice of Canada in a speech in May 2001, "it is this independence, coupled with integrity and a commitment to impartial decision-making which makes the judiciary the important institution it is and that will preserve it into the future."

CONCLUSION

The look and feel of a standard courtroom is quite formal and imposing. The aesthetics of a courtroom are a function of the public's respect for the administration of justice, as well as a manifestation of our understanding of the power that certain signs and symbols may have over people. The judge and lawyers' robes, the hushed intimacy, the ceremonial practices, the standard seating arrangements - these are all symbols of a place where justice is to be reverentially served. The lawyer's role in maintaining decorum is substantial.  At present, the contrast between the 'look and feel' of Courts Martial and civilian courts is stark, and problematic.  Much much-needed modernization is required to bring courts martial to the expected standard.

The administration of justice should take place in a courtroom with an appropriate degree of formality, dignity and respect. However, at present, courts martial operate in a somewhat makeshift way which may undermine important legal traditions.  Courts martial taking place on Canadian soil, most notably in peacetime, should be held in dedicated courthouses located in urban centres that are easily accessible to members of the public as well as the military community. This would help to better ensure compliance with the principles of public proceedings and open courts – an objective that is fully compatible with the need to guarantee military discipline and to facilitate the proper exercise of the profession of arms in defence of these very same rights and freedoms.

          Also, the sooner judges presiding at courts-martial lose their military rank, if not military status altogether, the more likely they will be seen as having the minimum standard of institutional independence which is now being taken for granted for every other member of the Canadian judiciary. 

          Our soldiers expect, are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of. This is presently not the case. There is an urgent need therefore for Parliament to embark upon a review of the Canadian military justice system which will lead to its evaluation and rejuvenation to ensure its harmony with the ordinary laws of Canada and the open courts concept.

NIL SINE LABORE

Sunday, October 14, 2018

Impending expiration of Pakistan's authority to try civilians in military courts

Reema Omer, writing in The News on Sunday, cautions that Pakistan should not yet again renew the authority of military courts to try civilians. The current constitutional amendment expires in January. Ms. Omer argues:
Parliament’s decision to allow military courts to try civilians in secret, opaque proceedings — which was later endorsed by the Supreme Court — is one of the most glaring surrenders of fundamental freedoms of the people of Pakistan for so-called “security” in our recent past.

Yet, our political leadership is silent about the injustices perpetrated by this parallel ‘justice’ system. It is particularly telling that of the three main political parties, only the Pakistan People’s Party’s manifesto for the 2018 elections expressed concern about military courts, and that too was limited to reforming their procedures to make them more compatible with the right to fair trial. The PTI’s manifesto is completely silent on the question of military courts, and the PML-N lists them as one of their key successes in justice sector reform.

Now that the time has come for military courts’ already extended jurisdiction to expire, any attempt to renew their mandate must be resisted.

We have ample evidence to show extending their jurisdiction once again will not help counter the very real terrorist threat facing Pakistan. Instead, it will bring Pakistan a step closer to permanently incorporating into law what was said to be an “exceptional”, “short-term” departure from the normal legal processes and human rights protections, giving the State an excuse to continue to ignore the actual reasons behind the lack of accountability for terrorism and other serious crime.
Disturbingly, during the nearly four years that Pakistan has had to fix its civilian justice system so there would be no even arguable need for military courts to try civilians, it has taken no steps in that direction. "With less than three months left before these provisions lapse, it is no surprise that any comprehensive reform of the criminal justice system has not even started, let alone be completed."
In the four years they have been in operation, military courts have convicted 419 people for terrorism-related offences, out of which 247 people have been sentenced to death and 172 people have been given prison sentences. At least 56 people have been hanged. Strikingly, only two people have been acquitted.

Saturday, October 13, 2018

Tim Dunne on Beaudry

Global Military Justice Reform contributor Tim Dunne has written a strong op-ed about the Court Martial Appeal Court of Canada's important recent decision in the Beaudry case for the Halifax Chronicle-Herald. Excerpt:
“What they [the Canadian Armed Forces] are trying to do [by seeking a stay from the Supreme Court of Canada] is to raise a panic where one does not exist,” military defence lawyer Lt.-Col. Jean-Bruno Cloutier said in an interview. “It is better for the victim and it is better for the public interest to have these cases heard downtown,” he continued, referring to civilian criminal courts.

There’s no evidence that referring these cases to the criminal courts will affect military discipline. The accused will not escape justice. On the contrary, he will be brought before the same courts, the same judges and the same jury system as all other Canadians accused of serious crimes.

While the Supreme Court may hear the application to stay the declaration of invalidity, the Beaudry appeal will not likely be heard for about a year.

At the same time, having another 40 cases uploaded to the civilian criminal justice system is insignificant, “like another litre of water over Niagara Falls,” said Lt.-Cmdr. Mark Létourneau in an interview. Létourneau is a military defence lawyer representing Cpl. Beaudry.

The military prosecutor retains authority to prosecute all offences committed by military personnel on international assignments and deployed to the various operations of the Forces, and all offences of a purely military nature that are committed within Canada.

By the numbers

Today marks another landmark for Global Military Justice Reform: 600,000 hits. From our founding, we've had 4550 posts and 622 comments. At last count, our readers have come from 183 jurisdictions, and our roster of contributors stands at 24. Heartfelt thanks to everyone.

Contributors and commenters: keep 'em coming. Comments are especially welcome, but remember that you must post using your real name -- no pseudonyms, nothing anonymous.

Please pass the word about Global Military Justice Reform to friends and colleagues who may find it of interest.

Is the government a person?

We'll try to keep this simple. In 2014, 26 members of the Kenya Navy were charged with desertion, based on their having taken jobs with American security firms. They were tried by court-martial and received life sentences. In 2015, however, the High Court overturned the convictions and sentences and ordered the accuseds acquitted on the ground that it had not been a time of war when they absented themselves. In 2016, Parliament passed the Kenya Defence Forces (Amendment) Act, 2016, s. 26A of which amends s. 186 of the Kenya Defence Forces Act of 2012 to allow the government to appeal the High Court's decision. The Court of Appeal has now ruled that the government can indeed appeal, not because of the after-the-fact legislation but rather on the basis of Art. 27 of the 2010 Constitution that had been there all along. Article 27(1) provides: "Every person is equal before the law and has the right to equal protection and equal benefit of the law." Here is The Standard's report on the latest decision; here is Business Daily's report. The ruling is not yet on the Court of Appeal's website.

Quaere: Is the government (here, the Director of Public Prosecutions) a "person" for purposes of the constitutional guarantee of equal protection?

Friday, October 12, 2018

Website outage

The website for the U.S. Court of Appeals for the Armed Forces has been inaccessible to members of the public (such as this blog) since yesterday.

Update as of Oct. 15, 2018:

This turns out to be a browser issue. The certificate issue with the CAAF and other military websites can be overridden if you are using Safari, Firefox or Internet Explorer, but not if you are using Chrome. It remains a mystery why this certificate issue arose in the first place, as Chrome has ordinarily worked fine with these sites.

Déjà vu in Egypt

Egypt continues to misuse military courts to try civilians. This time it involved 17 people convicted in connection with attacks on Coptic Christians. The New York Times has the story here. Excerpt:
Amnesty International said in a statement on Thursday that all personnel in military courts, including judges and prosecutors, are serving members of the military who report to the Minister of Defense and are untrained in the rule of law or fair-trial standards.

Sara el-Sherif, of the Egyptian group No Military Trials for Civilians, said defendants in military courts typically had no access to their lawyers, who themselves could not view the case files. “Military trials take injustice a step further beyond lousy civilian trials,” she said.

Thursday, October 11, 2018

Military courts in Bahrain

The Bahrain Centre for Human Rights has issued a report titled The Massacre of Justice. The introduction states:
In Bahrain, the judiciary authority is divided into two branches: the Civil Law Courts (commercial, civil, administrative and criminal) and the Shari›a Law Courts. The King chairs the judicial authority under article 33 of the constitution and appoints judges of the Supreme Judicial Council (SJC). The Minister of Justice (from the Executive Authority) runs the work in the courts and court hearings. In addition to the civil court, there is the Military court (private) which is established and organised by law, as defined by Article 105 of the constitution. The jurisdiction of military courts are confined to military offences committed by members of the Defence Force, the National Guards, and the Security Forces. There is a military court in the Ministry of Interior for the members of the Ministry of the Interior and the National Security Apparatus. Another military court is in the Ministry of Defence for the members of the Defense Force and the National Guards. After an amendment to Article 105(b) of the Bahraini Constitution on March 30th, 2017, military courts have been authorized to have jurisdiction over civilians, which was condemned by the report of the Bahrain Independent Commission of Inquiry (BICI) when 380 citizens were sentenced during National Security Period in 2011. The BICI recommended transferring all trials conducted before the military court system to the civilian court system. Thus, 380 Bahraini citizens have been tried, but in 2017, military courts were re-established to try civil people following the amendments of Article 105 of the constitution, which allowed amendment of the Military Judiciary Law.
Contemporary human rights standards strongly disfavor the trial of civilians by military tribunals.

The report observes:
Military Judiciary does not apply the safeguards of fair trials given in article 14 of the International Covenant on Civil and Political Rights, greatly raising the level of threat. Defendants at the Military Prosecution do not enjoy the basic rights such as the right to defend themselves against the charges. Moreover, the prisons under the military judiciary are not subject to legal and human rights observations, making the defendants in danger of being subjected to torture, physical coercion, and detention in solitary confinement.

Wednesday, October 10, 2018

Network of Military Prosecutors and the International Society for Military Law and the Law of War

This just in . . .

In April 2018, the IAP Executive Committee agreed to support the NMP’s decision to engage in a partnership with ISMLLW and to discuss the topic at the 21st ISMLLW Congress in May 2018 in Lisbon. The theme of the May Congress was Peace, War & the Law and comprised a series of general discussions on broader themes such as The Use of Armed Forces in Domestic Situations, Accountability and Responsibility in Peace Operations, Protection of Civilians in Peace Operations, Detention in Peace Operations, and Implementing a Gender Perspective in Peace Operations.

During the May Congress, the NMP presented its activities and website to the ISMLLW Board of Directors with a view to underline the added value of dual membership of both entities. Following deliberations in the Managing Board, the ISMLLW has now approached the IAP/NMP with a view to draft a Memorandum of Understanding between the ISMLLW and the IAP. As a first concrete step in the joint ambition to partner, the IAP/NMP has accepted the kind invitation to provide a speaker to the ISMLLW Conference on The International Law Applicable to Peace Operations in Dublin in November this year.

Further, and in connection with the enhancement of the NMP website and its new library on international criminal law a flyer on the ISMLLW has been updated on the site for the convenience of IAP members.

[Thanks to Lars Stevnsborg for the link.]

Tuesday, October 9, 2018

R. v. Beaudry

It is hard to imagine that the Supreme Court will overturn the ruling by the Court Martial Appeal Court, and the more likely outcome will require the Canadian military to undergo the same type of institutional change that has occurred in the United Kingdom. This will not be easy, and the justice aspects of this change will likely be both painful and costly; it could well open all prior cases that resulted in convictions to a massive class-action suit, going as far back as the signing of Canadian Charter of Rights on Apr. 17, 1982. But change must, and will, continue to come to the Canadian military. It is far better that the Canadian Armed Forces try to be in front of this change—respecting Charter rights and freedoms, without exception—rather than be dragged, kicking and screaming, behind it.

From this Maclean's op-ed by retired Commander Ken Hansen.

Monday, October 8, 2018

Sunday, October 7, 2018

Just how big a problem is adultery in the Indian Armed Forces?

A cloud now hangs over the ability of the Indian Armed Forces' ability to prosecute adultery, now that the Supreme Court has decriminalized the offense for the civilian sector. This essay by Chander Suta Dogra for Outlook claims that there is a great deal of adultery in the country's defense forces: the author asserts that the services are dealing with "a huge number of cases" where officers are being prosecuted for stealing the affections of brother officers' wives.

A huge number? What is that number? Data, anyone?

Saturday, October 6, 2018

ISMLLW Dublin Conference

The program and related information for the International Society for Military Law and the Law of War's conference on the international law applicable to peace operations (Dublin, Nov. 14-17, 2018) can be found here. The program has been organized with the support of the Defence Forces Ireland, the Irish Group of the Society, and the Irish Centre for Human Rights (National University of Ireland -- Galway).

Thursday, October 4, 2018

Local Defence Units and discipline

Personnel of Uganda's Local Defence Units will not a subject to military discipline, according to this report. Query: will they be subject to discipline at all times, or only when on duty or in engaged in LDU operations?

Monday, October 1, 2018

For your military justice bookshelf

Capt. Michael Junge, USN
Writing in his personal capacity, Captain Michael Junge has an important and fascinating book out: Crimes of Command in the United States Navy 1945-2015. The book "illuminates the Navy's changed understanding of responsibility, accountability, and culpability from the end of World War II through today." It examines a broad swath of cases, some of which are well-known, others less so. They include the loss of USS Indianapolis, the USS Belknap's collision, and the aftermath of the attack on USS Cole, among others. Important reading for line officers as well as judge advocates.