HRW protests Brazilian Senate proposal

Human Rights Watch has issued a statement objecting to a Brazilian proposal that would prevent civilian courts from trying homicide cases where the defendant is a member of the armed forces and the victim is a civilian:

Brazil’s Senate is being asked to consider a bill that would shield members of the Armed Forces accused of unlawful killings of civilians from prosecution in civilian courts. The Senate should reject the bill because it increases the risk of impunity rather than justice in these cases. 

“The leadership of Brazil’s Armed Forces wants to bring back a practice that was used during the time of the dictatorship,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “Under the proposal, the military would sit in judgment of itself in cases that constitute serious violations of human rights, a recipe for impunity.” 

At the end of July 2017, Brazil’s government ordered the deployment of thousands of members of the Armed Forces in Rio de Janeiro in response to an increase in violence. The soldiers will remain in the city until the end of 2018, said the commander of the Army, General Eduardo Villas Boas. 

Members of the Armed Forces are patrolling the streets of Rio and conducting raids alongside state military police and civil police officers. If the bill is passed, soldiers charged with unlawful killings or attempted killings of civilians during those operations will be tried in military courts, while other law enforcement personnel will continue to face civilian courts. Civilian courts should continue to have jurisdiction over all unlawful killings cases irrespective of the alleged killer, Human Rights Watch said. 

In the military justice system, the courts of first instance are staffed by four military officers and a civilian judge, all with an equal vote. The appeals court (the Superior Military Tribunal, SMT) is made up of 15 military officers and only 5 civilians. Its decisions can be appealed to the Supreme Federal Court, a civilian court. 

The Military Criminal Code, approved in 1969 during Brazil’s military dictatorship (1964-1985), provided that unlawful killings of civilians should be tried before military courts, but it was amended in 1996 to move trials for such crimes to civilian courts. Adoption of the bill would reverse a very important step in leaving behind Brazil’s authoritarian past and strengthening the rule of law, Human Rights Watch said. 

Under international norms, extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.” 

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights before military jurisdictions given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.” 

The United Nations Human Rights Committee, which monitors implementation of governments’ obligations under the International Covenant on Civil and Political Rights, has called on states parties to ensure that military personnel alleged to have committed human rights violations are subject to civilian jurisdiction. According to the committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.” 

Villas Boas has called for the Senate to approve the bill, contending that soldiers deployed in Rio de Janeiro need “legal protection.” In a note to the media, the army also said that subjecting soldiers to the jurisdiction of civilian courts “can hinder prompt reaction” during security operations. 

“Brazil´s civilian legal framework provides full due process guarantees to any soldier accused of an unlawful killing, just like to any other citizen,” Canineu said. “What the Armed Forces really want is to stack the deck against victims of serious human rights violations getting justice.”

UK civil control and oversight of military produce beneficial results for military families

The BBC News reports on the results of an Inquest conducted into the death of Private Phillip Hewett who was killed by a roadside bomb while travelling in a lightly armoured "snatch" Land Rover in Iraq.  He was the 37th soldier to be killed in the such vehicles in Iraq and Afghanistan which became know as "mobile coffins." Following an Inquest, she sued the Ministry of Defence under the Human Rights Act.   But the UK military continued to contest her case until an Inquiry into the Iraq war conducted by Sir John Chilcot revealed that the Ministry of Defence had known about the vehicle's vulnerability and for years had failed to provide more heavily armoured vehicles.

We have found that the Ministry of Defence was slow in responding to the threat from Improvised Explosive Devices and that delays in providing adequate medium weight protected patrol vehicles should not have been tolerated. It was not clear which person or department within the Ministry of Defence was responsible for identifying and articulating such capability gaps. But it should have been.

The UK government accepted the findings of Sir Chilcot in relation to the Snatch Land Rover which were published on July 6, 2016 and resulted in a settlement of the case and an apology from the Defence Secretary to the late Phillip Hewett's mother by Sir Michael Fallon for failures that "could have saved lives."

End of the line for the Gaynor case

The High Court of Australia today denied Bernard Gaynor's application for leave to appeal in Gaynor v. Chief of Defence Force, with costs. Background here; excerpt from the latest news:

During a complex hearing at the High Court in Brisbane on Friday, Justices Anthony Keane and James Edelman were told the appeal against the Chief of Defence Force's decision hinged, in part, on military regulations about the suitability of officers to serve. 

Those included following orders and official ADF policy, which prohibits its members making political statements. 

Mr Gaynor had argued he wasn't in uniform, on base or assignment when he made the comments and as a reservist had a different status to a regular officer. 

The High Court Justices, however, said that sufficient grounds to establish special leave to appeal the federal court ruling had not been made out and dismissed the appeal.

Are the padres' lips sealed?

CBC News reports on a controversy involving the duty of Canadian military chaplains to report crimes under some circumstances. Excerpt:

The Canadian military's marching orders for chaplains who counsel perpetrators or victims of sexual misconduct is [sic] causing a crisis of conscience for some clergy, federal documents reveal. 

A series of morale and welfare reports obtained by CBC News under Access to Information legislation show the issue of pastors being compelled to testify in court has become a matter of increasing unease among military clergy. 

"There is concern by chaplains that they are potentially breaching the confidentiality of those receiving spiritual care," said a March 2015 summary prepared by the military chaplain general's office. Moreover, the report said, "the existing framework for legal assistance to chaplains does not provide legal advice for them." 

Pastors on bases along the West Coast seemed the most concerned about the ethical dilemma, and at one point they consulted with the regional prosecutor's office to review legal issues related to chaplain confidentiality in courts martial. 

Directive from the top 

But as far as the military's top spiritual adviser is concerned, the issue is clear-cut.
Brig.-Gen. Guy Chapdelaine has issued a directive that says, with the exception of confessions heard under the sanctity of Roman Catholic reconciliation, pastors are required to disclose what they have been told if a crime has been committed. 

"In certain circumstances, there is a duty to report what has been revealed in a counselling situation," said the Oct. 23, 2015, directive, recently obtained by CBC News through Access to Information. 

The directive states: "With the exception of an exchange of sacrament reconciliation with a Roman Catholic priest, confidentiality in pastoral care and counselling is not applicable" when the person is a danger to themselves or others, when the incident involves child abuse or when a court orders a pastor to testify. 

Further, "all notes and documentation, including all emails concerning the case," may be turned over to the court for "consideration" during the trial. 

The chaplains could be called upon to testify, but "will share all information with investigators only with the written consent of the victim." 

They should also "encourage, and where appropriate enable" the victim to report incidents.

A culture of presumed guilt?

The culture within the military has become one of presumed guilt for the accused. Military attorneys wield tremendous power over service members accused of misconduct. Army trial counselors have the power to pull decision authority from commanders who ask tough questions before passing judgment. Many commanders are hesitant to challenge trial counselor recommendations.

U.S. Army officer Chase Spears

 Letter to the Editor, Washington Post