Service-connection in Italy ("the case of la patata bollente")

Court of Cassation of Italy

In an important ruling reported here by La Stampa (whose headline called the case la patata bollente, or "hot potato"), the Italian Court of Cassation held on February 18, 2014 that for a case to be within the exceptional jurisdiction of the military courts, the offender must be in the military and the offense must be connected to the military (No. 7579/14). The appellant, an inspector (marshal) of the Carabinieri (which is an armed force), had been charged with aggravated fraud in connection with overtime compensation. The Military Court of Appeals found jurisdiction but the Court of Cassation determined that the victim of the fraud was the Bank of Italy, not the military. As a result, it sent the case to the civilian prosecutor.

Editor's note: thanks to Global Military Justice Reform contributor Phil Cave for the link to the Court of Cassation's decision.

Pushback from head of Somalia's military court

AllAfrica reports:

[The h]ead of Somalia's military court Colonel Abdirahman Mohamed Turyare met with a delegation from the United Nations Assistance Mission in Somalia (UNSOM) Wednesday (May 28th) to discuss human rights and justice issues, Somalia's Goobjoog News reported.

UNSOM's Chief of Joint Justice and Corrections Section Mitch Dufresne urged the court to conduct fair proceedings in its trials, while Turyare asked Dufresne to consider the court's unique position in prosecuting al-Shabaab militants when evaluating its performance.

He called on the United Nations to refrain from criticising the military courts as they work towards combating al-Shabaab in the country.

Thai coup military courts' broad jurisdiction

It's getting worse in Thailand. This article from the Bangkok Post reports that the Thai Courts of Justice warned on Friday about the extended jurisdiction of the military court. Offenses not specified in the junta's orders or committed before May 25 might also come under the court's jurisdiction if committed in connection with crimes that are within its jurisdiction. The court now has jurisdiction over cases in which offenders are civilians, including Criminal Code offenses against the King, the Queen, and the Heir Apparent and offenses against internal security under Criminal Code sections 113-18 (except those committed in the southern provinces under the 2008 national security decree or the 2005 state of emergency decree). "The Courts of Justice also noted that since there was no constitution now, any petition to the Constitutional Court to decide whether a law was unconstitutional should be scrapped."

No habeas for Brazilian civilian tried in military court

According to this account, the Superior Tribunal Militar, by a divided vote, has denied an application for a writ of habeas corpus filed on behalf of a civilian who is being tried in a military court in Salvador for the attempted murder of an Army lieutenant and a sentry in 2012. The accused had contended that the charges had to be prosecuted in a civilian court.

Editor's note: Trial of civilians by military courts is strongly disfavored under contemporary international human rights standards.

A first in Brazil

Pres. Maria Elizabeth Rocha

The Jornal do Brasil brings this news (free translation):

The Superior Tribunal Militar (STM) will be headed by a woman for the first time in its 206-year history. On Wednesday, May 28, Ministra Maria Elizabeth Rocha was confirmed as the court's next president. Her investiture will take place on June 16.

She succeeds Army General Raymundo Nonato de Cerqueira Filho, who retires on June 11, before completing his two-year term. Ministra Rocha is currently the court's vice president, and will serve until March 2015, completing the term of her predecessor, who took office in March 2013.

The court's presidency rotates between civilian ministers and those from the Navy, Army, and Air Force. 

Nominated by former Brazilian President Luiz Inácio Lula da Silva, Ministra Rocha took office in 2007. She has a Ph.D. in Constitutional Law from the Law School of the Federal University of Minas Gerais. 

Milestones, goals, thanks

Tomorrow Global Military Justice Reform will wrap up another productive month, marking our 20,000th hit in less than five months. May was our first 100-post month, with something to report virtually every day. We're still just shy of having readers in 100 countries, so that goal will remain a challenge for a bit longer. Many thanks to our readers, those who have taken the time to comment, and above all our distinguished contributors who have increasingly stepped up to the plate with insightful commentary about developments around the globe. Our field of interest is certainly a target-rich environment.

If you would like to be a guest commentator, please email the editor with your proposed topic.

Will the Ziaur assassination courts-martial be reexamined?

Pres. Ziaur Rahman

In 1981, Bangladeshi president (and general) Ziaur Rahman was assassinated, leading to two courts-martial, the execution of 13 officers, and the jailing of 14 more. Now, according to this article in the Daily Star, there are calls to examine those trials for irregularities such as refusing to permit challenges to court members for cause. Until now, the proceedings have been cloaked in secrecy. Between 400 and 500 Bangladeshi soldiers were hanged in 1975-77.

An "admission" of note: prosecutor, US military commissions

In the on-going pretrial hearings in the case of United States v. al Nashiri, the defense was demanding access to certain documents, when the following exchange took place with the Military Judge [MJ]:

MJ [COL POHL]: I notice in your reply, there is no authority cited one way  or the other. Is there any authority for me to order another branch of the government to release information?

TC [CDR LOCKHART]: There is no authority for you to order another branch of the government to release the report. You certainly have other options available.   . . .

LINK, at page 4375

"TC" stands for Trial Counsel, the military's vernacular for prosecutor.

What was being argued about was this:

Separately Wednesday, defense lawyers asked Pohl to get them a copy of the entire Senate Intelligence Committee’s “Torture Report.” It details not only Nashiri’s treatment in CIA custody but describes interrogations of other captives that might implicate their client.

Link to Miami Herald article

What is interesting here is the military prosecution's argument that a military judge in a court [here, military commission] created by Congress pursuant to Article I, U.S. Const., does not have the authority to order discovery of documents for the defense, then to be logically consistent, a military judge in a court-martial, also created under Article I, does not have that authority either. That strikes imho to the core of the right to a fair trial under accepted definitions of due process.

Whether or not the prosecution's premise is correct as a matter of U.S. constitutional law is not the point.  What is important here is the fact that the government is now making this argument. The practical effect of the government's position is that the military judge becomes subservient to the dictates of the Chief Prosecutor -- an untenable premise under any, civilian or military, judicial process.

Read more here: http://www.miamiherald.com/2014/05/28/4142699_guantanamo-war-court-opens-in.html#storylink=cpy

Former information minister on trial before Lebanese military court

Ex-Minister Michel Samaha

The Daily Star reports here on the latest developments in the military trial of former Lebanese information minister Michel Samaha. He and two others are charged with plotting terrorist attacks against Lebanese clergymen, politicians, lawmakers and citizens.

Rwanda military trial

An earlier post referred to the trial of civilians in a Rwanda military court. Another account indicates that Rwandan law permits military trial of civilians when military personnel are tried jointly with civilians.

A look at the Thai coup court

Ex-Minister Chaturon Chaisaeng

This article in the Bangkok Post gives some details about the post-coup military court system. The first person to be tried is former education minister Chaturon Chaisaeng. He has been denied bail and can be held for 12-day periods for a maximum of 84 days. There is a right to counsel but no right to appellate review. The vice admiral who heads the court expects it to be flooded with cases.

JAG - legal nonchalance

Michel W. Drapeau

Ottawa. On May 27, 2014 the Chief of the Defence Staff (CDS), General Thomas Lawson, accompanied by  the Judge Advocate General (JAG), Major General Blaise Cathcart, appeared before the parliamentary Standing Committee on National Defence (SCOND) to discuss the disturbing high incidence of sexual assaults. This matter was brought to the fore by the publication in a national magazine of a scathing 17-page special report titled "Our Military's Disgrace" reporting disturbing levels of sexual assaults in the Canadian Armed Forces. 

No apparent problem?

Following the opening comments made by the CDS, the Honorable Jack Harris, who is both acting as Vice-Chair of the SCOND and the Defence Critic of the Loyal Opposition in the House of Commons, asked General Lawson whether he was prepared to admit that there were a problem of sexual assault in the Canadian military, a problem which was reported upon in an exhaustive fashion in 1998 when MacLean’s magazine published a trilogy of articles about rape in the military. Here is an excerpt from that transcript:

Colombian military convictions and sentences affirmed

Supreme Court of Colombia

Radio en Viv0 reports that the Supreme Court of Colombia upheld the sentence of 40 years in prison handed down to seven career Army soldiers for murdering three people in La Guajira.

The high court made ​​the decision after rejecting defense arguments, saying they did not meet the requirements and proper logical argument specified in Article 213 of the Code of Criminal Procedure. It appears that a lieutenant and his platoon decided to create a fake firefight with alleged guerrillas in an effort to show their superiors they were dealing with the guerrilla problem. In the ensuing firefight innocent workers were killed. (Rough translation from the Spanish original.)

HRW condemns military trials in Thailand

Human Rights Watch has condemned the use of military courts following the recent coup in Thailand. From its statement:

The May 25 order grants the military wide-ranging powers to prosecute civilians without basic due process protections, and prohibits defense counsel and rights to appeal.

The trial scheduled for later this week of detained former Education Minister Chaturon Chaisaeng and other civilians charged by the military junta should be heard in regular courts. Chaturon would be the first civilian put on trial in a military court in Thailand in decades. Chaturon has been denied access to legal counsel.

“The military trial of a civilian without a lawyer or means to prepare a defense is really no trial at all, but a travesty of justice,” said Brad Adams, Asia director. “The Thai junta should immediately end its arrests of peaceful critics and revoke its order allowing the trial of civilians before military courts.”

Stay of court-martial in Kenya?

The news coverage has been a bit confusing, but it now appears that two justices of the Court of Appeal in Malindi have stayed the desertion court-martial of 26 (ex?) members of the Kenya Defence Forces while their claims are adjudicated in the High Court in Mombasa. Stay tuned. (Readers in Kenya: can you clarify the current state of play in this case?)

The IDF's Facebook mutiny

Click here for Liel Leibovitz's fascinating and important story from The Tablet about free speech issues swirling through the Israel Defence Force around the use of social media. What happens when soldiers with access to social media conclude that one of their comrades has been treated unjustly, leading to thousands of Facebook "likes"? From the article:

Because the IDF, like most armies, bars its soldiers from expressing personal opinions on contentious matters while in uniform, they covered their faces with homemade signs. Most of these contained the exact same slogan: “I also stand with David [Adamov] the Nachlawi,” the latter being a reference to the Nachal, Adamov’s brigade. Within days, the number of active duty soldiers and officers standing with Adamov was in the thousands, and a Facebook page set up to aggregate all these outbursts of support registered more than 133,000 likes, a huge number by local standards. . . .

Arguelles et al. v. Argentina (Inter-American Court of Human Rights)

The Inter-American Court is currently celebrating its 103rd period of sessions at its seat in San Jose, Costa Rica.  Yesterday afternoon it heard the case of Arguelles et al. v. Argentina.  The video of the hearing will be available on the Court's website.  The facts of the case involve the detention of some 50 military officials who were in charge of funds on different Argentine Air Force bases during the period 1978-80, 20 of whom are the purported victims in this case.  They were charged with military fraud and tried under the Argentine Code of Military Justice, a typical military offense for which military courts were created.

This case did not involve human rights crimes but military crimes purportedly committed by the military; crimes for which military courts are created.  The interesting thing about the case is that the members of the military came before the Inter-American Commission (and now the Inter-American Court) alleging that they did not get a fair trial before the military tribunal.  The Argentine Code of Military Justice, for example, did not establish a time limit within which it must decide a case of someone in detention. The purported victims in this case were held in  preventive detention for a period of between 7 and 8 years by the state, without establishing the rationale or justification for such a long period of detention.

The Commission decided that the military norms, prima facie, violated the right to a fair trial and access to justice, facts that were recognized by Argentina and led to the abolition of the Argentine Code of Military Justice on August 6, 2008, as the consequence of a friendly settlement achieved by the  Commission in this case and a companion case.  Despite the achievement of a friendly settlement and the abolition of the Military Code, the victims in Arguelles did not receive reparations and that is the subject matter of the Court's hearing.  The case also raises the interesting question of whether military proceedings, in general, are by their very nature violative of due process guarantees set forth in international human rights law, so that military officials need to request the assistance of international human rights bodies.

Plans for significant military justice reform next year in Chile

Chilean legislators will consider major military justice reform legislation in the first half of 2015. According to this May 25, 2014 report in Política, a proposal developed by the Ministry of Defense in collaboration with the Ministry of Justice will address the structure of the military judiciary, process and jurisdiction, and which offenses can be prosecuted. If enacted into law, the reform will be the most thorough since 1927. Another report indicates that attention is being given to limiting court-martial jurisdiction to military-related offenses by military personnel and excluding offenses by carabineros.

Diario UChile reports that relatives of Manuel Gutiérrez, a young student who was shot in a 2011 demonstration, have joined in the call for military justice reform. They argue that the military should not have jurisdiction in cases involving civilian casualties.

Sexual assault issue heats up in the Canadian Forces

Colonel (ret) Michael W. Drapeau

CTV News has this report about a growing controversy over sexual assault in the Canadian Forces. Global Military Justice Reform contributor Colonel (ret) Michael W. Drapeau argues that jurisdiction over these offenses should be exercised by civilian law enforcement authorities, as was the case before 1998.

Solorio watch

Remember the case of Senior Airman Charles Amos Wilson III? We wondered why it was being tried in the military. Further information has emerged. According to this report by WMAZ, the Air Force's assertion of jurisdiction comes because there were civilian charges in two counties, the Air Force can try all the charges at once, and the family of a victim prefers that SrA Wilson be tried by the military:

"In this case, Wilson was facing civilian charges in multiple counties — Terrell and Houston counties — in Georgia," said David Donato, a Robins [Air Force Base] spokesman. "A court-martial is able to resolve all of the charges against the accused, no matter where they allegedly occurred. Additionally, the family of Ms. Ferguson supported the Air Force taking jurisdiction of the murder charges," Donato said in an email.

Was there no way to try all the charges in a single civilian trial? (Help us on this, readers in Georgia.) Are administrative convenience and the druthers of a victim's family reason to deny a member of the service the full protection of the Bill of Rights?

Kenya Court of Appeal overturns bail order in navy cases

Justice Hannah Okwengu

The Kenya Court of Appeal has overturned an order of the High Court releasing a number of court-martial accuseds pending trial. The issue will now go to the Supreme Court. According to this article,

Justices Hannah Okwengu, Milton Asige Makhandia and Fatuma Sichale halted the release of the ex-soldiers after finding [Kenya Defence Forces] had an arguable appeal against the orders, which the High Court gave on April 30 and May 2.

The judges ordered chief of defence forces General Julius Karangi to file his appeal within 30 days after he and others sued by the soldiers were granted stay of execution of the High orders to have the soldiers released pending hearing and determination of their case. 

But after the judgment was given, lawyer Daniel Kamunda applied for court proceedings to move to the Supreme Court because he had instruction [to] appeal against the decision. 

“My clients are disappointed by the ruling and have decided to move to the Supreme Court to challenge the Court of Appeal decision,” said Kamunda. 

“By virtue that KDF is claiming these people are still service members there is presumption they are service members subject to court martial proceedings,” said the judges.

This just in: US military justice system is prefect

As the July 1 deadline for comments to the Military Justice Review Group approaches (yes, you can make suggestions anytime, but DoD has requested that interested parties do so by then), presumably the letters and emails from bar groups, NGOs, and other interested parties will start to trickle in. Emails can be sent to osd.ucmj@mail.mil.

Now that its website is up and running, the Review Group should post the comments received from the public and the two senior advisors as they come in, in the interest of transparency and to facilitate informed debate. If you submit comments, please also upload them here using Global Military Justice Reform's comment function so everyone will have the benefit of your thinking, possibly sparking additional suggestions from others. To help get your juices flowing, how about these suggestions?

Who should be in charge of the Manual for Courts-Martial?

Who should get to revise the Manual for Courts-Martial (MCM), that well-thumbed bible of American military trial practice? 

It is hard to overstate the importance of this manual on the practice of criminal law in American military courts. Consider size alone: the UCMJ statute is under 40 pages but the MCM is 884.

UCMJ article 36 allows the president to prescribe rules for military courts. So far presidents have done this through the Defense Department with a group called the Joint Service Committee on Military Justice. This has given DoD a monopoly on revising the MCM, and the institutional inertia to keep things this way. Other agencies can comment but are, with a minor exception, excluded from committee membership.

Look at the MCM cover on the left. The Department of Defense seal suggests, "we got this!"

Perhaps a manual on military justice should hear from both departments of "military" and "justice." It is especially important to have Justice Department input since Article 36 also requires the president to make court-martial rules consistent with rules of federal district courts whenever possible. 

My Mount Rushmore team to revise the MCM: 

- a representative from each of the four services

- a Department of Homeland Security representative for the Coast Guard

- a judge from the Court of Appeals for the Armed Forces (non-voting)

- a civilian representative with extensive experience litigating criminal cases in federal courts (DoJ pick)

- a senior-status federal district court judge (DoJ pick)

- a State Department representative (to monitor military justice's consistency with American treaty obligations)

Whom would you choose?

Appellate hearing and administrative sanctions in the Hung Chung-chiu case

The Taipei Times has this story about the appeal (it sounds like a de novo trial) in the Taiwan High Court in the criminal case that grew out of the exhaustion death of corporal Hung Chung-chiu while in disciplinary detention. Earlier post here. His 2013 death led directly to enactment of legislation ending peacetime courts-martial.

“None of the defendants confessed to the charges, and not one has negotiated a settlement with the Hung family, meaning they have shown no remorse,” Taiwan High Court Prosecutor Hsu Yung-chin told the court.

Hsu added that the evidence shows that the defendants “abused and tortured a serviceman for fun.”

The 24-year-old Hung collapsed from heatstroke after participating in punishment exercises on July 3 last year and died in hospital a day later, just three days before he was due to be discharged from compulsory military service.

Summary execution in Somalia

Somali Current includes this account of the summary execution of a suspected al-Shabab member:

Nour Abdale Awale, a young man suspected to be member of Al-Qaeda linked group, Alshabab who was caught from Deynile district has been shot to death in the spot where he was caught by the Somali armed forces after the military court has issued an emergency order allowing military person[nel] to execute the suspected on the spot without taking him to court proceedings. The executed young man accused of having illegal weapon including grenade bomb and to be the mastermind of an attack launched on Deynile district.

Chairman of military’s lower court Liban Ali Yarow said that the court has [made] the execution order of Nur Abdale Awale, 21 who was member of Alshabab militant fighters after he confessed all the allegations crimes he committed. “He [was] found guilty of attacking with grenade bombs on Deynile.”

Chairman of Somali military supreme courts Abdirahman Mohamed Tur revealed, “From today, everyone confirmed and convicted of guilty of being one of the militant group of alshabab, will not be given a chance and will be executed in the spot where he is being caught.”

Editor's note: It is difficult to understand the process employed by the military courts in this case. Was there a mass trial in absentia? Did anyone represent the defendants? How were the names of those condemned determined? Or was the death penalty imposed as a "blank check"? Cf. Hitler's Commando (1942) and Commissar (1940) Orders. How was this accused's confession obtained? Had he surrendered to government forces? Seemingly, there was no opportunity for even the pretense of appellate review. For a recent report by Human Rights Watch on Somali military courts, click here.

SANDF troops liberate comrades from police custody

The touchy matter of civilian jurisdiction over offenses by military personnel has been much in the news around the globe this year. The latest example comes from South Africa, where a news account reports that personnel of the South African National Defence Force freed 31 soldiers from policy custody after they had been arrested at a shebeen (unlicensed bar or club). Some details from the article:

Five days ago, a military general allegedly illegally deployed troops to get their colleagues out of police custody - but the authorities still can’t say what happened.

More military trials for civilians -- it's Thailand's turn

The Bangkok Post reports:

The National Council for Peace and Order (NCPO) decided on Sunday to use a martial court to prosecute offenders in another move to reinforce its control over the political situation as more protests against the coup took place in Bangkok. 

The article notes that "civilian" courts are open.  So it appears that special offenses committed by civilians are intended to be covered -- "people committing crimes, facing lèse majesté charges, creating security threats and defying its orders."

Another court-martial of civilians

New Vision reports that Uganda is preparing to court-martial five civilians who are accused of poaching on a wildlife reserve. Under Ugandan law, the use of weapons qualifies a case for trial by court-martial.

Increase in collateral attacks on Kenya courts-martial

This report from Nairobi notes a surprising increase in the frequency of applications to the civilian courts of Kenya seeking to head off or overturn courts-martial:

This year alone, more than 20 officers in different cases are contesting the decision of the court martial citing that they will either be unfairly tried and also that the constitution of the members siting in the same has been a ground of a legal battle. 

According to constitutional lawyer John Were, the officers are challenging the decision of the martial in other courts instead of filing for a review as many of them feel that they can never find a positive outcome in the courts formed in the barracks.

“I believe that the composition of the [courts-]martial do not follow the constitution when being formed and as a result the verdicts passed are biased and against the law,” says Were.

Quote of the day

"We have many cases to handle and it has become nasty for us to mobilize witnesses."

Prosecutor Captain Fredrick Kangwamu in the general court-martial of Colonel Shaban Bantariza, Makindye Barracks, Uganda, seeking a two-week adjournment because a government witness appeared to be unreachable by telephone. Details here from New Vision.

Monday, May 26 is Memorial Day in the U.S.

Ball's Bluff National Cemetery, Leesburg, Virginia

Philippine Commission on Human Rights speaks out on PMA case

The Commission on Human Rights, a Philippine government agency, has issued an investigative report concluding that the disenrollment proceedings in the case of former Philippine Military Academy cadet Aldrin Jeff Cudia were a sham. The report, summarized here and full text here, has been filed with the Supreme Court of the Philippines.

California state senate approves structural change for prosecution of National Guard sex offenses

The California state senate has unanimously approved S.B. 1422, a bill that would take the charging power away from California National Guard commanders in sexual assault cases. Instead, local civilian prosecutors would decide which cases should be prosecuted. "This process outlined in the bill is in fact how most sexual assault cases are currently handled in the [California Military D]epartment. The new legislation would codify it," according to this U.S. News & World Report article. The measure would apply only when a National Guard unit is in title 32 (unfederalized) status. "California’s Air National Guard, State Military Reserve, and Naval Militia are also components of the department and likewise would be affected by the legislation, which could create the groundwork for further change nationwide."

S.B. 1422 differs in two important respects from the approach taken in the federal legislation proposed by Sen. Kirsten Gillibrand (D.-NY). First, it would shift sexual assault prosecutions out of the military justice system, rather than create an independent military prosecutor with disposition power. Second, it is narrower because it applies only to sexual assault cases, rather than serious criminal charges in general.

HRW's reform suggestions for Tunisia

Human Rights Watch has issued a lengthy comment on Tunisian law reform. Among its observations, available here:

The transitional justice law does not . . . explain whether the jurisdiction of the specialized chambers will trump that of the military justice system, which currently has jurisdiction over abuses by security forces. The [National Constituent Assembly] should reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel. If the specialized chambers are to try the most serious and systematic human rights violations that involve many perpetrators as well as the state apparatus, legislators should first fill a gap in Tunisia's penal code concerning command responsibility. This established principle in international law holds senior officers liable for crimes that their subordinates committed with their explicit or tacit approval. The lack of provisions criminalizing command responsibility in Tunisian law contributed to the military courts' seemingly light sentences for Ben Ali and senior commanders for their role in commanding the troops that killed scores of protesters during the Tunisian uprising.

A thought-provoking editorial . . . from 1950

President Harry S. Truman

New York Times Editorial Page, May 8, 1950

Response Systems Panel subcommittee report on the role of the commander

Prof. Elizabeth L. Hillman

The Subcommittee on the Role of the Commander of the Response Systems to Adult Sexual Assault Crimes Panel has issued its May 2014 report. It is available here. A separate dissenting statement by Prof. Elizabeth L. Hillman begins at p. 133. Her January 30, 2014 dissent from the subcommittee's earlier interim report begins at p. 137.

Quote of the day

On one occasion, the military judge interrupted detailed defense counsel during individual voir dire and instructed the member to “[p]ut the Commandant’s speech completely out of [her] mind.”

United States v. Howell, No. 201200264 (N-M. Ct. Crim. App. May 22, 2014), slip op. at 24 n.2 (Ward, Sr. J., concurring in the result) (quoting voir dire in unlawful command influence case arising from Commandant of the Marine Corps Gen. John F. Amos's 2012 "Heritage Brief" lecture). Editor's note: concentrate on not thinking about elephants.

Courts Martial Appeal Court grants minor relief in Blackman case

The Lord Chief Justice,
Lord Thomas of Cwmgiedd

The Courts Martial Appeal Court in London has reduced the minimum term that must be served under the adjudged life sentence in the murder case against Royal Marine sergeant Alexander Blackman. According to this BBC account, he will now be eligible for parole after eight years, rather than ten. "Reducing the sentence, judges Lord Chief Justice Lord Thomas, Sir Brian Leveson and Lady Justice Hallett said the court martial had not taken the former marine's combat stress sufficiently into account." The BBC adds:

Lord Thomas said the court martial ought to have accorded greater weight as a mitigating factor to the combat stress from which Blackman was suffering. 

He said the stress had arisen from the nature of the insurgency in Afghanistan, the way his tour of duty was arranged and other matters personally affecting him.

The full opinion can be found here, on the bailii.org website.

Anonymous comment

Today we received an excellent comment on possible changes to the US system but the commenter omitted his or her name. Please repost it with your name, per GMJR policy. Thanks!

Where have all the cases gone?

Military Times's Andrew Tilghman has a lengthy and provocative article on trends in U.S. courts-martial and nonjudicial punishment. It's well worth reading and has kicked up a lively discussion over at CAAFlog.com.

Here are some key data from the article:

With all the concerns in Washington these days about misconduct in the ranks, one might think the military justice system is swamped with unruly troops and commanders looking to crack down on them.

In fact, it’s just the opposite.

Across the force, the military is meting out far less punishment today than just a few years ago. It’s a hard-to-explain trend that has many military justice experts wondering whether commanders have lowered expectations for keeping troops in line — or simply gone soft on some forms of misconduct.

Over the 10 years from 2004 to 2013, data from the service judge advocates [general] show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

What's your theory? 

Misuse of military courts in Somalia

Human Rights Watch has issued a report titled The Courts of "Absolute Power": Fair Trial Violations by Somalia's Military Court. The accompanying press release includes these observations:

In August 2011, following intensive fighting in Somalia’s capital, Mogadishu, and the withdrawal of the main Islamist opposition group, Al-Shabaab, from the city’s center, then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal Government declared a state of emergency in areas vacated by Al-Shabaab. The decree granted the military court jurisdiction over all crimes committed in these areas – including by default over civilians. Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure.

The military court has tried Al-Shabaab-related cases, as well as cases traditionally difficult for civilian courts, such as prosecuting members of the police and intelligence agencies. African and international human rights standards largely prohibit trials of civilians before military courts, and increasingly call on countries to ensure that military court jurisdictions are restricted to military offenses by military personnel.

2013 Canadian House of Commons Standing Committee on National Defence hearing on military justice

The February 11, 2013 hearing on military justice that was conducted by the Canadian House of Commons Standing Committee on National Defence is now available online. Among the witnesses were criminal defense attorney Clayton Ruby, Glenn Stannard, Chair of the Military Police Complaints Commission, Justice (ret) Gilles Létourneau and Colonel (ret) Michel W. Drapeau. Much of the discussion related to summary trials. Justice Létourneau testified:

[T]here is a need for a fundamental wall-to-wall review of the National Defence Act, a review that has to be conducted outside the control of the Department of National Defence so that Parliament can be provided with a legislative proposal that addresses not only the wishes of the military leadership but also, first and foremost, the expectations of our civil society, who demand that our soldiers who serve in uniform be afforded rights equal to those provided in the civilian penal system in Canada and other militaries abroad. This is currently not the case.

Aftershocks from Srbrenica case

Col. (ret) Thom Karremans

NL Times has this story about developments in the Arnhem Court of Appeal. As fallout of last year's Netherlands Supreme Court decision that the Dutch state is civilly liable, relatives of three locally-hired employees who died in the 1995 Srbrenica massacre have sought to have the battalion commander (Col. (ret) Thom Karremans), second-in-command and human resources director criminally prosecuted. The public prosecutor has declined the case, but proceedings have been instituted in the military chamber of the Arnhem Court of Appeal to require a criminal case to be brought. The latest issue to arise is an effort by the plaintiffs to exclude from those proceedings the sole military lawyer of the three-judge chamber. NL Times reports:

Liesbeth Zegveld

According to NOS [Netherlands Broadcasting Foundation], the court will table the latest request from the relatives in the autumn of this year but the relatives demand that it is not handled by the military court, because there are concerns about impartiality.

Attorney Liesbeth Zegveld who represents the relatives said that the Ministry of Defense has been too deeply involved in the case. She said that there are indications that the Ministry influenced the previous decision by the court not to prosecute the retired colonel.

She also said that the Ministry “frustrated” attempts to unearth the truth. “It goes beyond making evidence disappear. The Military Judge works for the Ministry of Defense. Involvement of a soldier in the decision about this request is highly problematic,” said Zegveld.

Nightingale case decided on appeal

The Lord Chief Justice,
 Lord Thomas of Cwmgiedd

In a ruling from the bench, the Courts Martial Appeal Court in London has denied leave to appeal in the case of SAS sniper sergeant Danny Nightingale. According to this account in the Guardian:

His lawyers told the appeal court that evidence from [SAS member and Nightingale's best friend and housemate] N's former father-in-law could suggest he had two pistols. It was also claimed that a medic called by the prosecution to give evidence about Nightingale's mental state stepped outside his areas of expertise.

Lord [Chief Justice Lord] Thomas [of Cwmgiedd] said there was a "substantial amount" of evidence presented to the trial that could have led to the court martial board's decision. This included "a very large amount of evidence" relating to soldier N's credibility. The three judges who heard the appeal were unimpressed by the arguments on the medic's evidence.

"In our judgment, none of this material goes anywhere to affecting the safety of this conviction, and for his reason and others we have given, we dismiss this application," Thomas said.

Also on the panel were Higginbottom and Baker, JJ. 

"The Chinese military legal framework must be improved"

Apparently unnoticed in the roar of recent articles and statements by policy analysts about China's People's Liberation Army is that improving Chinese military law is part of the Chinese government's plans for reforming and modernizing China's national defense establishment and People's Liberation Army.

The November 2013 "Decision of the Central Committee of the Communist Party of China on Several Major Issues on Comprehensively Deepening Reforms" (the Third Plenum Decision), which sets out the roadmap of the current Chinese leadership for reform,  contains a section on reform of national defense and the military with the following phrase about military law:

The military legal framework must be improved... (健全军事法规制度体系)...

Other aspects of military reform highlighted in that section also anticipate an increased role for military law.

Why does Chinese military law need improving?

Although it may not be generally known by the world outside of China, senior Chinese military legal officials for some years have been pointing out the weaknesses in the current military legal framework in academic articles. In their view, they have to deal with a range of complex issues, but have an inadequate body of legislation to deal with them. They also identify as an issue the fact that the military courts and procuratorate are directly under the PLA General Political Department (the Communist Party organization within the military). (This article from the Congressional Research Service provides excellent background (and structure charts) on the structure of the Chinese government and military.)
Senior military legal officials see it as a particular problem when the Chinese military has to increasingly interact with other domestic institutions and foreign and international organizations.

Disciplinary punishment in Taiwan

Readers will recall that Taiwan enacted legislation last year that ended courts-martial. Now the Legislative Yuan has turned its attention to the conditions under which military personnel are put in disciplinary confinement for minor military offenses. This article from the China Post explains that personnel who violate military regulations will face a fine, grounding, or demotion among other punishments instead of being put in the brig. Those who are put into military confinement rooms will attend lectures on obeying military discipline and receive counseling services. Of note, they will still have to perform physical training. That could be a problem because the immediate cause of last year's military justice reform legislation was the exhaustion death of an enlisted man in disciplinary confinement. 

Civilian v. military trial in Zimbabwe

Cases involving claims that offenses by military personnel should be tried in civilian court seem to be popping up everywhere. An interesting variant is this case from Zimbabwe, where an Army officer is seeking to be tried in the High Court rather than a court-martial because the pay scam he is accused of having perpetrated affected every serving member of the Zimbabwe National Army.

“I later learnt that the respondents intend to charge me on the allegations that I unlawfully deducted money from all employees’ salaries in the Zimbabwe National Army including the respondents and all personnel who constitute the court martial,” [Captain John] Mambewu said in an affidavit attached to the application.

Editor's note: This case does not raise the larger jurisdictional issue of where civilian type offenses such as larcency or fraud ought to be prosecuted, but what should happen where every possible court-martial panel member will be disqualified because he or she is a victim of the offense. A longstanding legal principle--the Rule of Necessity--holds that where all are disqualified, none are disqualified. See Will v. United States, 442 U.S. 200, 213-16 (1980), Here, however, there is the alternative of trial in a civilian court where the problem of disqualification for cause of all potential decision makers would not arise.

Dawn editorial: "civilian trials of Army men"

Dawn, a leading Pakistani newspaper, has run a powerful editorial about whether there should be civilian trials for criminal offenses by military person. Typically Global Military Justice Reform gives links and selected extracts from material from other sources, but this editorial is exceptional. Here it is in full:

SHOULD military personnel be tried in civilian courts? It is a fraught question, but more for political reasons than legal ones. In legal terms, military personnel can be investigated, charged and tried by the civilian law-enforcement and judicial apparatus and it is the military that has to make the case for trial in a military court as opposed to a civilian one. For the most part, this is neither controversial nor very problematic. Crimes committed by one individual against another in their private capacity have little to do with the institutional interests of the military and so there is little reason why, say, theft or assault cannot be tried by the civilian apparatus. But, as the Supreme Court bench led by Justice Jawwad Khawaja has discovered in the case of the 35 missing persons taken away by the military from a Malakand detention centre, once institutional interests come into play the question of civilian jurisdiction is somehow always made controversial.

Honest Abe: courts-martial, military commissions and clemency

While working on one of my cases yesterday, I spent some time researching the issue of post-trial clemency in the military looking for some new/different approaches to advocating for the client.

In that mode, I came across an interesting historical analysis of President Abraham Lincoln’s use of clemency in courts-martial cases and also those tried by a military commission after the Santee-Sioux “war” in Minnesota in 1862, where 303 “warriors” were sentenced to death by the military commission. Lincoln commuted the death sentences of all except those convicted of rape, and massacres (of civilians), viz., those convicted of participation in military “battles” were granted clemency. [As a personal aside, I suspect that Prof. Lieber probably had some influence on that decision].

In any event, it is a short, informative historical read on post-trial clemency that in some ways is still quite relevant today. The article is titled Inside Lincoln's Clemency Decision Making. Here's a link to it.

For those interested in a more detailed analysis of the U.S.-Sioux War of 1862, Prof. Carol Chomsky's seminal article, The United States-Dakota War Trials: A Study in Military Injustice is here.