Thursday, July 31, 2014

Contest of wills between civilian and military courts in Bolivia

Página Siete reports that a Bolivian civilian court has again entered an order concerning the military pretrial detention of Jhonny Feliz Gil, a warrant officer who heads the association of warrant officers and sergeants. The civilian court's order requires the military court to comply with the requirements of the Code of Criminal Procedure for pretrial detention.

Postscript: The Appellate Chamber of the Military Supreme Court later refused for the fifth time to overturn Gil's pretrial detention on the theory that he might seek to influence witnesses.

Commandant Donohoe's case returns to the news

Irish Defence Forces Air Corps Commandant Nile (Niall) Donohoe's court-martial has come back to life. His conviction on the part of the case that included charges of employing insulting language towards a superior was overturned in 2012 by the High Court. Other charges, which concern events alleged to have occurred in 2007, are now on track for trial. According to this Irish Times report, Comdt. Donohoe seeks to raise a variety of procedural issues.

Wednesday, July 30, 2014

Call for broad reform of Spanish military justice

Mariano Casado
El País has this op-ed by Mariano Casado, Secretary General of the United Association of Spanish Soldiers. He catalogs a number of recent military justice related controversies (some of which have been noted on Global Military Justice Reform), argues for judicial independence, and writes, in part (rough Google translation):
Last Friday, July 25, 2014, the Cabinet approved a draft Military Penal Code for submission to the Congress of Deputies. No one doubts that the military penal framework has to be modified. But there isn't agreement on the design of the new military criminal law. And, as a negative point, this bill has been developed by the military, as if such a rule would not affect all citizens, "as if it were an autonomous legal system" as highlighted recently by Professor De León. Or as if it were considered that only those with military status are able to recognize the legal rights, principles and values ​​that should have special protection in Spanish military criminal law. Those who think so are mistaken. What happens is that the endogamous and corporatist approach is the best way to protect a number of situations and privileges that cannot be allowed in an advanced democracy, in which the Armed Forces and the law governing them must at all times serve the general interest and not special privileges that should disappear.

Tuesday, July 29, 2014

Jurisdictional battle lines being drawn in Brazil

Prof. Flavia Piovesan
The question of military jurisdiction over offenses committed by civilians is taking center stage in Brazil. For competing views, compare this op-ed by law professors Flavia Piovesan and Juliana Cesario Alvim with this one by President Maria Elizabeth Guimarães Teixeira Rocha of the Supreme Military Tribunal, who points out that Brazil has a long tradition of subjecting civilians to military jurisdiction for some offenses. The two professors, on the other hand, argue (rough Google translation):
Virtually no democratic nation allows, in actuality, the trial of civilians by military courts in peacetime. The Inter-American Court of Human Rights, to whose jurisdiction Brazil has submitted, is emphatic in asserting that in a democratic state military jurisdiction must have a restrictive scope directly linked to the protection of legal interests that are characteristic of the military. For the Court, only active duty military personnel may be tried by military courts, and only for military crimes. To do otherwise is an affront to the right to due process and the right to a fair hearing conducted by an impartial and independent judge. This is also the guidance of the UN and the European Court of Human Rights.

The Canadian military criminal justice system at a crossroad

The Supreme Court of Canada (SCC) on July 24, 2014 granted leave to appeal in the Moriarity case. It should be recalled that in an earlier decision (R. v. Moriarity  2014 CMAC 1) the Court Martial Appeal Court of Canada (CMAC) ruled that the jurisdiction of Canadian military tribunals to try ordinary criminal law and federal statutory offences is conditional on the existence of a military nexus. In other words, the offence committed has to be "a service connected offence". It is only at that condition that s.130 of the National Defence Act RSC 1985, c N-5 (Act), which imports into the Act all the Canadian Criminal Code and federal statutory offences, is not constitutionally overbroad.

Three options are now open to the SCC in disposing of the case on its merits. The first is to affirm the decision of the CMAC. The second is to reverse the decision and conclude that the jurisdiction of Canadian military tribunals is not conditional on the existence of a military nexus and, therefore, the importing s. 130 is not constitutionally overbroad. Finally, the third option also implies a reversal of the CMAC decision, but a finding that s. 130, as claimed by the respondent, is constitutionally overbroad. This third option, if accepted, would bring Canadian military criminal justice in line with the military reform movement actually taking place around the world as well as international law and human rights trends. Ordinary criminal law offences would then be tried by civilian courts without prejudice to the military's right to institute real disciplinary proceedings before military tribunals.

As the law stands in Canada, as a result of ss. 2, 60-65 and 130 of the Act, members of the Canadian Forces as well as civilians accompanying the Canadian Forces (children, other family members, workers under contract, dependants and journalists) who commit ordinary criminal law offences fall under the jurisdiction of military courts.

If the SCC were to adopt the second option and rule out the necessity of a military nexus, the above persons will routinely be prosecuted before and tried by military courts for any ordinary criminal law and federal statutory offences even if they have no connection whatsoever with military discipline, efficiency or even morale of the military. Such prosecutions would fail to meet the objectives and the rationale for the existence of a separate military criminal justice system. In R. v. Genereux, (1992) 1 S.C.R. 259, Chief Justice Lamer wrote at p. 293 of his reasons for judgment: "The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military" (emphasis added).

Moreover, the SCC would be reversing its earlier decision in Mackay v. The Queen (1960) 2 S.C.R. 370, at a time when the status test established by the U.S. Supreme Court in Solorio v. United States, 483 US 435 (1987), is under strong criticism and military justice systems around the world are depriving military tribunals of their jurisdiction over ordinary criminal law offences as well as over civilians. It would also be reversing its findings in the Genereux case.

Perhaps more disturbing is the fact that the SCC would be setting aside the only requirement or condition for the application of the exception to the constitutional guarantee of the right to a trial by a jury. In R. v. Brown (1995), 5 C.M.A.C. 281, at paras. 13-14, Justice Hugessen of the CMAC wrote that "it is now well settled that the exception to the guarantee of the right to a jury trial in paragraph 11(f) (of the Canadian Charter of Rights and Freedoms) is triggered by the existence of a military nexus with the crime charged". The only justification I have found for such a far-reaching and detrimental exception to an accused rights is this statement of the then Attorney General of Canada: there never was a trial by jury in the British and Canadian military justice system. I should add that at that very same time there never was an entrenched Charter of Rights for an accused. One would have expected a better justification for such a deprival of this fundamental right as well as others that remained available to accused prosecuted before civilian tribunals.

Abolition of the military nexus requirement would mean that persons tried before military courts would lose the right to a jury trial, the benefit of hybrid offences, the benefit of a preliminary inquiry as well as the panoply of sentences available to civilian tribunals.

The third option offers the SCC the opportunity to revisit the existing scope of the purpose of a separate system of military tribunals in view of the evolving guarantees of the Canadian Charter of Rights and Freedoms, changing circumstances and the development of international human rights.

In the Mackay case, supra, at pp. 380-81, Chief Justice Laskin and Justice Estey, in dissent, were of the view that persons charged with an offence under the ordinary criminal law should be prosecuted before civilian tribunals, "free from any suspicion of influence or dependency on others". They went on to say: "There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved". They finally concluded that they "could not conceive that there can be in this country two such disparate ways of trying offences against ordinary law, depending on whether the accused is a member of the armed forces or not".

The majority decision in Mackay was rendered not long after WWII. The Cold War was on and the spirit of war was still around. In addition accused rights and protection were not constitutionalized in Canada. This is no longer the case. While I agree that discipline and efficiency are two fundamental military values, ordinary criminal law and federal statutory offences are not disciplinary offences. The prosecution of these offences should be left to civilian authorities and, as a general rule, the trial should take place before civilian courts. The military is a profession of arms and, as is the case for any other profession in Canada, whether it be the medical or the legal profession, to cite two examples,  offenders can be prosecuted for conduct prejudicial to the profession, good order and discipline before the appropriate disciplinary board or tribunal.

Spanish Army captain leaves military after years of harassment

In Spain, an army captain who had a colonel thrown in jail for sexually harassing her has decided to leave the army after harassment from the colonel’s colleagues and friends became too much to bear.
Captain Zaida Cantera, who served in the Spanish contingent deployed in Kosovo and Lebanon, saw her career take an unexpected and unwelcome turn in 2012, when she took legal action against Colonel Isidro Jose de Lescano-Mujica for sexual harassment. He was sentenced to 2 years and 10 months in prison.

Members of the colonel’s command were displeased with Capt. Cantera, and shortly after the colonel’s conviction, she was accused of having manipulated the date on a document submitted during her application for promotion to commander (an offense punishable by up to six years in prison).
Eventually, an expert report showed that it was not Capt. Cantera who authored the falsification. The individuals involved in the falsification were subsequently charged by a military court, but the complaints were dismissed and they were cleared. One of them recently became a general.

Since then, Capt. Cantera’s military life was made difficult as friends of the colonel continued to harass her, seeking to drive her out of the military. Now they have their wish. She grew tired of the harassment and left the army.

An item of interest for LOAC

Now available online:  Afghanistan Midyear Report 2014: Protection of Civilians in Armed Conflict.  The executive summary begins:
In the first half of 2014, the armed conflict in Afghanistan took a dangerous new turn for civilians. For the first time since 2009 when UNAMA began systematically documenting civilian casualties in Afghanistan, more civilians were found to have been killed and injured in ground engagements and crossfire between Anti-Government Elements and Afghan national security forces than any other tactic. In previous years, the majority of civilians were killed and injured by improvised explosive devices.

Monday, July 28, 2014

New twist in Kenya Defence Forces desertion court-martial

It seems that, on top of everything else, the person who for a time represented one of the accused in the Kenya Defence Forces desertion court-martial, was practicing law without a license and indeed, lacked academic credentials. The person in question has been released on bail. The facts as currently known appear in this article from The Star

More on the Moroccan reforms

Telquel has an informative article about the military justice reforms recently passed by the Moroccan House of Representatives. In addition to pressure from NGOs, the legislation seems to have been sparked by the military trial of 20 Sahrawis in the Gdeim Izik case.

Another Venezuelan military trial involving a retired officer

Gen (ret) José Aquiles Vietri Vietri
Once again, Venezuela is employing a military court to prosecute a retired officer. In the latest case, retired General José Aquiles Vietri Vietri is to stand trial for incitement to rebellion. Details appear in this article from Ultimas Noticias. According to another article he retired in 2006.

Sunday, July 27, 2014

Will Brazil finally have to implement alternative service?

Portal Bragança has a lengthy article about a case in which the Brazilian Supreme Court concerning alternative national service for conscientious objectors. Very few Brazilians claim conscientious objection, and those who do are apparently simply released from military service rather than having to perform alternative service. According to the article:
The Federal Supreme Court (STF) must, in the coming months, give the final word on implementation of alternative service to military service for Brazilians who claim political, philosophical or religious reasons for being exempt from barracks activities when they turn 18. The "imperative of conscience" is a right established by the Constitution since 1988, regulated by law since 1991, and specified in Ministerial Order since 1992, but to date has not been properly implemented.
*  *  * 
The prosecutors want the Army, Navy and Air Force [-- in addition to implementing alternative service --] to inform society about the right of every young person subject to mandatory service to claim conscientious objection at the time of enlistment. To do so, they say, the government should dedicate at least 30% of the advertising inserts in newspapers, radio and television, and post signs in all military recruiting stations in the country. The MPF [Federal Public Ministry] also claims that during the enlistment process, young people should be asked about possible conscientious objection that would preclude their performance of military service. [Rough Google translation.]

2014 CAAF Judicial Conference

Each year the U.S. Court of Appeals for the Armed Forces presents a two-day conference open to the public.  This year’s conference almost didn't happen because of budget issues, but it did. Compared to some of the previous years, the program was a good one and well received by the audience.

You can read the handouts now on CAAF.  There are some interesting items for the practitioner, as well as an overview for others of the quality of the program.

I have Lincoln's Code: The Laws of War in American History, by Professor John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law,Yale Law School, it’s a five-star read. I recommend it alongside Stephen C. Neff’sJustice in Blue and Gray: A Legal History of the Civil War.  Despite the name of the book, Neff explores some of the same issue as Witt.  A review says, “An essential book for understanding America's bifurcated legal system in wartime--the criminal courts under an established jurisprudence and military commissions pursuant to the law of war. Indeed, many issues Neff examines--sovereignty, detention, civil liberties in wartime--are relevant today.”

Where will these charges be tried?

Justice Minister Andrea Orlando
The Daily Beast has this account of allegations of rape and other offenses against two members of the U.S. military stationed in Italy. One of the suspects was already under charges in another case. The question now is whether the Italian government will resist turning the men over to the U.S. for trial in accordance with the governing NATO Status of Forces Agreement or prosecute the case itself in the Italian courts. The article reports resentment over repeated misconduct by U.S. personnel, reminiscent of local friction in Okinawa.

The article is less than clear about how the SOFA actually functions. We find this in Article 7(3)(c):
If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other state considers such waiver to be of particular importance.
Under the NATO SOFA's concurrent jurisdiction provisions, Italian authorities can, in the end, stand their ground and prosecute these charges, the victim having been a Romanian civilian. Given the history recounted in the article, it would not be surprising if they did so.

Quote of the day

"Commanders are not lawyers," Brown said. "Most have not studied in law school, passed a bar exam or argued a case in court. Military lawyers are better trained and equipped to handle serious criminal matters. Commanders are better trained to lead their troops."
Gillibrand's bill, Brown said, "lets commanders command and lawyers lawyer."
Barbara Brown, communications director for Service Women's Action Network, discussing Sen. Kerstin Gillibrand's Military Justice Improvement Act. Click here for complete article.

Saturday, July 26, 2014

Former Kyrgyz leaders convicted in absentia by military court

We learn from this article that the former president of Kyrgyzstan, his brother, and a former prime minister have been convicted in absentia by a military court (rough Google translation):
A Kyrgyz military court today sentenced in absentia former President Kurmanbek Bakiyev, his brother Janysh Bakiyev and former Prime Minister Daniyar Usenov to life imprisonment.
Reading the verdict, presiding judge Damir Onolbekov said the court found the three guilty of various charges including mass murder of protesters on April 7, 2010.
The court decided to sentence Janysh Bakiyev and his brother, who was formerly head of the State Security Service, to life imprisonment and to confiscate their property and deprive them of the right to hold certain offices or engage in certain activities for three years.
Usenov was also sentenced to life in prison and deprived of the right to hold certain offices or engage in certain activities for three years. The court also ordered the confiscation of his car and apartment and a sum of money.
Kyrgyzstan authorities issued international arrest warrants for the three defendants. It is believed that the former president and his brother are in Belarus, but attempts to secure their extradition failed. The whereabouts of the former prime minister are still unknown.
Editor's query: why a military trial? Perhaps some reader can also explain what juridicial purpose is served by a trial in absentia.

Independence of tribunals, including the Armed Forces Tribunal, in India: fresh developments in the Supreme Court

An application for tagging the case involving the independence of the Armed Forces Tribunal has been allowed by the Supreme Court of India and the said matter would now be heard along with another case relating to the Company Law Appellate Tribunal.

A detailed news report on the development, as it appeared in The Hindustan Times, can be accessed by clicking here.

Friday, July 25, 2014

Will Moroccan military justice reform law affect past cases?

As previously noted, the lower house of the Moroccan Parliament has approved a bill that would, among other things, withdraw military court jurisdiction over civilians. The measure, however, is silent on what will happen in the case of those who have already been convicted, as explained in this article from Yabiladi. An official of the Moroccan Human Rights Association suggests that those cases should be reviewed by civilian courts.

Thursday, July 24, 2014

Supreme Court of Canada grants leave to appeal in Moriarity

The Supreme Court of Canada has granted leave to appeal in Moriarity v. H.M. The Queen. Here is the summary prepared by the Registrar:
Canadian Charter of Rights and Freedoms – Whether s. 130(1)(a) of the National Defence Act violates s. 7 and s. 11(f) of the Charter – Whether the Court Martial Appeal Court erred in finding that the military nexus doctrine applies to s. 130(1)(a) of the National Defence Act – Whether s. 130(1)(a) of the National Defence Act is constitutional – Canadian Charter of Rights and Freedoms, ss. 7 and 11(f) – Constitution Act, 1982, s. 52 – Constitution Act, 1867, s. 91(7).
The applicant Moriarity was a Cadet Instructor Cadre officer. While in a position of trust and authority with respect to cadets he interacted with, he engaged in inappropriate sexual relationships with two cadets. He was charged with four Criminal Code offences: two offences relating to sexual exploitation contrary to s. 153, one offence for sexual assault contrary to s. 271 and one offence for invitation to sexual touching contrary to s. 152.
The applicant Hannah was a member of the Canadian Forces and a student at the Canadian Forces Base Gagetown. He purchased and delivered a controlled substance to another engineering candidate and the drugs were found in that student’s quarters on the base. He was charged with trafficking of a substance included in Schedule IV contrary to s. 5(1) of the Controlled Drugs and Substances Act and unlawful selling of a substance containing a drug included in Schedule F contrary to the Food and Drug Regulations and Food and Drugs Act.
The applicants confessed and made admissions but challenged the constitutionality of s. 130(1)(a) of the National Defence Act.
For an earlier post about the decision of the Court Martial Appeal Court, 2014 CMAC 1, click here

Moroccan reform bill passed by House of Representatives

The lower house of the Moroccan Parliament has approved a bill to reform military justice. According to this post on (rough Google translation):
In a plenary session on Wednesday night, the House of Representatives unanimously passed a bill relating to military justice which aspires to achieve a deep and comprehensive reform of military justice law adopted in 1956. 
This bill focuses on four main areas, namely the consolidation of the powers of the military court in order to make it a specialized court and not an exceptional one, the definition of the legal nature of the tribunal, the reorganization and support the principle of the independence of the military justice system, and strengthening the guarantees of a fair trial before this court and the protection of the rights of litigants. 
The bill reduces the powers of the military tribunal, since this court will no longer be able to try civilians except in wartime and may not try common law crimes committed by military or paramilitary personnel, crimes committed by minors, or those committed by the military police in the performance of their duties. 
In order to strengthen the guarantees of a fair trial before a military tribunal, the new law reduces from 16 to 5 the number of capital crimes. These cases are defined with great precision and given the sensitivity of the subject, while bearing in mind the supreme interests of Morocco and the peculiarities of the military. It was decided to follow the Code of Criminal Procedure in this regard. 
In an introductory note discussing this Act, the Minister Delegate to the Head of Government responsible for the administration of national defense, Abdellatif Loudiyi, said that this law is a pioneering initiative and a qualitative leap in the process of judicial reform in accordance with high guidance of King Mohammed VI and the implementation of the provisions of the 2011 Constitution.

Wednesday, July 23, 2014

Military immunity from civilian prosecution in India: the Armed Forces (Special Powers) Act, 1958

Somehow we missed this July 19, 2014 article in The New York Times about the immunity of Indian military personnel from civilian prosecution in certain "disturbed" areas. Gardiner Harris writes:
[A] decade [after a particularly shocking murder], no one has been arrested or charged with a crime. Activists, lawyers and ordinary people here say they know exactly why: a colonial-era law in effect in India’s periphery that gives blanket immunity from prosecution in civilian courts to Indian soldiers for all crimes, including rape.
Human rights advocates have for years called for the repeal of the law, known as the Armed Forces [(]Special Powers[)] Act[, 1958]. Christof Heyns, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, wrote last year in a report to the United Nations Human Rights Council that the powers granted under the law “are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended.”

Germany withholds evidence in U.S. Air Force murder case

Because the United States has not ruled out the death penalty in a U.S. Air Force murder case arising in Germany, German authorities have withheld evidence from the Article 32, UCMJ, pretrial investigation, including the victim's throat. Details of the case appear in this Stars and Stripes article. The victim, a U.S. Navy petty officer second class, was an Armed Forces Network broadcaster.
[Achim] Nunenmann, the Kaiserslautern senior prosecutor, said his office is willing to cooperate – if the U.S. military takes the death penalty off the table.
“If they want the exhibit (physical evidence), they need to do something,” he said.

Tuesday, July 22, 2014

The Redstone Arsenal Case

Col. John C. Nickerson, U.S. Army
Every once in a while Global Military Justice Reform stumbles on an old case that has fallen from view. Click here for's story about Army Col. John C. Nickerson and the 1957 Redstone Arsenal court-martial. Spoiler alert: it concerns leaks.

Home page for Canadian Forces external review

Justice (ret)
Marie Deschamps
A home page has now been created for the External Review on Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, previously mentioned here. The review is being conducted by retired Justice Marie Deschamps of the Supreme Court of Canada. Click here for the site.

Penalty for drunkenness set aside

The Military Chamber of the Spanish Supreme Court has set aside the punishment of a student at the Civil Guard NCOs academy who showed up for duty highly inebriated, according to this story in Europa Press. It would seem that the punishment was set aside because no one outside of the military was aware of the civil guard's drunkenness. (Spanish-language readers: please feel free to clarify or correct.)

Should there be a separate prison for military personnel?

In Bolivia, an issue has arisen whether there should be a separate prison for military personnel. Click here for Radio FM Bolivia's coverage (in Spanish).

Monday, July 21, 2014

New York City Bar Association recommendations to Military Justice Review Group

Last month The New York City Bar Association was among those submitting recommendations to the Defense Department's Military Justice Review Group. Click here to read the City Bar suggestions. Known more formally as the Association of the Bar of the City of New York, the organization has had a decades-long involvement with military justice. Its February 2014 favorable report on the proposed Military Justice Improvement Act is available here.

Recommendations to the Military Justice Review Group do not (yet?) appear on the DoD website. If you or your organization have submitted suggestions, please share them by posting a comment under this blog post so everyone can have the benefit of your thoughts.


Few people outside the cloistered world of military justice are aware of the Defense Institute of International Legal Studies, based in Newport, Rhode Island. Here's a link to DIILS's home page -- it's well worth visiting regularly. Here's was DIILS says about itself:
The Defense Institute of International Legal Studies - DIILS for short - is a small organization on the Navy base in Newport, Rhode Island.  Our staff of 30 supports U.S. foreign policy and security policy with rule of law training and education focused on human rights, international humanitarian law, and the law of armed conflict.  We work for the Department of Defense. Everyone knows that the U.S. Department of State is involved in the business of international affairs, but most people don't realize that our Department of Defense is also engaged in this area.
We have an educational mission. Our staff military lawyers, called JAGs, travel to foreign countries to conduct courses, seminars and workshops for foreign military officers, legal advisors, and related civilians.  In FY2011, we gave more than 130 of these seminars all over the world!  We also offered 10 Resident Courses at our home base in Newport, Rhode Island to foreign military officers and civilians from around the world. 
Our motto is "Justitia per orbem terrarum", which means justice for all the earth.  We focus on nations where the U.S. Government has a strategic interest in enhancing the rule of law and democracy. We help countries set up or change their military justice system; build accountability and transparency into existing legal structures in order to combat corruption; explain international human rights law and humanitarian standards; or share legal lessons learned from deployments to Afghanistan and Iraq with units preparing to deploy.
These activities not only enhance the knowledge and skills of our participants, they also build positive relationships and mutual trust with U.S. partners and allies world-wide.

Sunday, July 20, 2014

Details on Nigerian Army mutiny trial

Premium Times has this informative article about the upcoming court-martial of 18 Nigerian Army soldiers on mutiny and other charges. The charges and specifications are as follows:
Count 1:
Statement of Offence: Criminal conspiracy to commit mutiny triable by court martial by virtue of Section 114 of AFA and punishable under Section 97(1) of the penal code CAP P89, laws of the Federation of Nigeria.
Particulars of offence: In that you on or about 14 May14 at Maimalari Cantonment in Maiduguri conspired to incite other personnel of 101 Bn to commit mutiny.
Count 2:
Statement of Offence: Mutiny punishable under Section 52(1) (b) of AFA CAP A20, Laws of the Federation of Nigeria, 2004.
Particulars of Offence: In that you between 13 and 14 May 14 at Maimalari Cantonment in Maiduguri fired sporadically with intent to incite other personnel of 101 Bn against the authority of 7 Div.

Saturday, July 19, 2014

A bad case of the slows in India

The Times of India has this story about the case of Colonel R.B.S. Bisht of the Indian Army. He was accused of procurement irregularities 20 years ago. At issue is whether, having retired, he remained subject to court-martial jurisdiction. The High Court stayed proceedings based on his jurisdictional challenge, then apparently sat on (or misplaced?) the case for years. When the Armed Forces Tribunal was created, Col. Bisht's challenge was transferred to it. Eventually that court allowed his court-martial to proceed, leading to a dismissal from the service -- meaning he would lose his retirement benefits. Most recently, the High Court has refused to intervene because the Chief of Army Staff's post-trial review of the court-martial has not been completed.

President Abraham Lincoln once said that General George B. McClellan had a case of "the slows." The phrase comes to mind in considering Colonel Bisht and the incomprehensibly slow pace of Indian military justice and direct and collateral review in the civilian courts. No, this is not like keeping people on death row for extraordinary periods, but Jarndyce v. Jarndyce-paced justice is still a serious matter. In a democratic society, military personnel are entitled to have confidence that judicial review will be available within a reasonable time.

If friendly criticism can be offered from a distance, someone has to take charge of the problem of systemic delay. Col. Bisht's case -- whatever the merits -- represents a failure by the institutions of Indian justice. Nor is it the only instance in which delays of this magnitude have occurred in the context of military justice. Indeed, it took decades for the Indian Parliament to act on the long overdue suggestion that it create an appellate military court.

If this harsh judgment is off base, perhaps readers in India will tell us why. Please post any comments using your real name.

Comments are also invited on India's assertion of court-martial jurisdiction over retirees. It's not the only country to do so (the United States is another), but the practice is strongly disfavored under international human rights principles. Could Col. Bisht have been prosecuted, after retirement, in the civilian courts?

Friday, July 18, 2014

Funeral of Chief Justice Edmond P. Blanchard

Poignant funeral for former Minister Edmond Blanchard 
Jean-François Boisvert 

Former Liberal Minister of Finance and Justice Edmond Blanchard was brought to his final resting place Monday morning at his home village of Atholville.

Nearly 400 people crowded inside the church of Notre-Dame-de-Lourdes in Atholville to pay tribute to the former restigouchois politician. He represented the riding of Campbellton from 1987 to 1999 as a Liberal. In the early 2000s, he returned to law practice, [later] becoming a member of the Federal Court and Chief Justice of the Court Martial Appeal Court of Canada.

He died on June 27 in Ottawa following a brief but virulent disease (cancer). He had just celebrated his 60th birthday.

In the crowd, one could see many colleagues of the deceased when he was a deputy minister in the Legislative Assembly, including the most recent three Liberal premiers - Frank McKenna, Camille Thériault and Shawn Graham - and the aspirant in the September elections, Brian Gallant.

Several colleagues from the judiciary also attended the ceremony for the former judge. The Campbellton Courthouse adjourned in the morning to allow staff to attend the ceremony. Mr. Blanchard practiced law in Restigouche for a while before taking the plunge into politics.

Former top sex offense prosecutor reprimanded

The Washington Post reports that the U.S. Army's former top prosecutor for sex offenses has been reprimanded. Details remain murky, but one can only assume we'll learn more from leaks.

Thursday, July 17, 2014

A Step Forward or Backward?

Portada del libro 'Un paso al frente', del teniente Luis Gonzalo Segura.A Lieutenant in the Spanish Army is going on a hunger strike because the military has sentenced him to two months in prison for writing a novel entitled "A Step Forward" which describes the corruption and impunity prevalent in the Spanish military under the guise of fiction.

Lieutenant Luis Gonzalo Segura, born in 1977, has spent the past 12 years in the Spanish military and claims that anyone who denounces anything is expelled.  He began to file complaints in 2008-09 when he was incorporated into a unit dealing with Army computers and accounts and began to notice that for a banquet that fed 50 people a bill was processed for having fed 500.  His complaints were ignored and some of his fellow officers labeled him a traitor and sought his "rehabilitation." His novel has stirred quite a controversy in Spain.  He accuses the military of being a parallel state in which the "minority caste" is the dominant and controlling caste.  He claims that the 130,000 members of the Spanish Armed Forces have only 41,000 soldiers, although they have 270 Generals (250 too many), 1,050 Colonels (1,000 too many) and 3,500 officers (3,200 too many).  He compares this to China which he says has 190 Generals for a population of 2.3 billion people.  He considers that his fundamental rights as a person and as a citizen have been violated, but he does not consider that the European Court of Human Rights can help him because the Spanish Government reserved to Articles 5 and 6 of the European Convention on Human Rights to permit summary punishment ("The Spanish Code of Military Justice provides that the punishment of minor offenses may be ordered directly by an offender's official superior, after having elucidated the facts.").

Court-martial stalls in Uganda

Brig. Michael Ondoga, UPDF
New Vision reports here that the court-martial of Ugandan Brigadier Michael Ondoga and other senior Uganda People's Defence Force officers has been put on hold until an unrelated case involving 131 others are dealt with.

International Society for Military Law and the Law of War July 2014 "news flash"

Click here for the latest "news flash" from the International Society for Military Law and the Law of War. Among other things, this edition gives early information on upcoming Society programs in Germany, Belgium and the Czech Republic.

Wednesday, July 16, 2014

Lawyers group opposes Colombian military justice measure

The Colectivo de Abogados José Alvear Restrepo (CAJAR) has issued a strong statement calling on the Colombian Congress not to enact the pending military justice bill.

Proposal to abolish military justice in Brazilian state

An article on reports that a member of the state legislature of Rio Grande do Sul has proposed abolition of the state's military justice system (rough Google translation):
The Committee on the Constitution and Justice of the Legislative Assembly held a public hearing on Tuesday ([July] 15) in Piratini Palace in Porto Alegre, to discuss the PEC 222/2011, proposing the termination of Military Justice of the State of Rio Grande do Sul.
The proposed constitutional amendment was drafted by Deputy Raul Pont (PT). According to him, the budget of the military justice system is more than R31 million. The view of the deputy is there no need for a court specifically to try crimes committed by military police and that those resources could be applied to expansion, training and modernization of the military brigade. Audience participation included Military Court President Sérgio Brum, Judge João Barcelo de Souza Júnior, prosecutor Hamilton Freitas, and president of the Association of Judges of Rio Grande do Sul (AJURIS) Eugênio Terra, among other officials.

Tuesday, July 15, 2014

NYT "Room for Debate"

Today's New York Times Room for Debate feature includes this discussion of what a new U.S. military should look like. Thought-provoking and highly recommended.

"The headquarters of injustice": opposition MP calls for military justice reform in Uganda

Hassan Fungaroo, MP
Hassan Fungaroo, the MP who serves as the opposition's shadow defense minister in Uganda, has called for military justice reform, according to this article in New Vision:
Addressing a press conference at Parliament, the Obongi County MP noted that currently the Court Martial “is faulty and works as if it is the headquarters of injustice in the country”.
“It is improper for civilians accused of treason or treason related offences to be tried in the military Court Martial under section 119 of the UPDF Act 2005, because civilians are civilians,” he argued.
He stated that the institutional, legal and policy framework of the Court is not well known to civilians and soldiers.
“We want to know who qualifies and what qualifies a suspect for trial in a military court—is it his or her membership in a military institution or the type of crime they have been accused of,” he said.
Obongi [sic] also argued that the military court can convict and sentence a person to death, and yet due to its composition, staffing, resources and the military traditions of secrecy in the conduct of its business, the court does not have sufficient capacity for protection of human rights.

Monday, July 14, 2014

Decision in al-Bahlul released this morning

This morning, the U.S. Court of Appeals for the D.C. Circuit released its opinion in al-Bahlul v. United States (“Al-Bahlul”) vacating al-Bahlul’s conviction on charges of providing material support for terrorism and solicitation of others to commit war crimes.  Al-Bahlul was the personal assistant to Osama bin Laden who produced propaganda videos for al-Qaeda and assisted in preparations for the 9/11 attacks.
Al-Bahlul brought ex post facto challenges to his conviction on charges of conspiracy, material support and solicitation.  The Court accepted the Government’s concession that the Ex Post Facto clause of the Constitution applies to detainees at Guantanamo, but it employed plain error standard of review after finding that al-Bahlul forfeited his ex post facto objection by not raising it at trial. 
All seven judges on the en banc Court agreed that a military commission cannot try al-Bahlul for material support or solicitation under the 2006 Military Commissions Act (“MCA”) because neither offense was a war crime triable by military commission when al-Bahlul was working with bin Laden in 2001. The Government conceded that neither material support nor solicitation is an international law-of-war offense and it relied solely on weak Civil War-era military commissions convictions as precedent to support the position that analogous offenses were already triable by military commission in the United States. These precedents were too “distinguishable and imprecise” to provide the sole basis for this argument.

Assault by Chilean police must be tried in civilian court

Resolving a dispute between civilian and military courts, a panel of the Supreme Court of Chile has ruled unanimously that charges against police officers for assaulting a civilian must be transferred to civilian court. Any related military offenses may remain in the military courts. For details, see this article in Biobio Chile.

Happy Bastille Day à nos lecteurs francophones

Military justice caseload statistics (and nonreform) in Uruguay

El País (Montevideo) carries this report on Uruguayan military justice statistics for 2013. Common law crimes are up. On reform, the article notes (rough Google translation):
In 2011, the Executive sent Parliament a bill to reform the Military Penal Code, the main change being that members of the Armed Forces who commit military offenses would be tried in civilian courts and not by their military peers.
These new provisions would be applied by the Supreme Court of Justice (SCJ) and would mean a change of direction with respect to the areas where the actions of senior officers and ratings are investigated, as the role of the bill.
The idea of the bill was to remove the Supreme Military Court, which is the highest body for such offenses, led by military personnel and situated within the Ministry of National Defense.
However, the idea never prospered and the system currently works properly.

Sunday, July 13, 2014

Newsroom news

In case you haven't noticed, Global Military Justice Reform has added a few new contributors. Contributors now come from the United States, United Kingdom, Canada, New Zealand, Hong Kong and India. In the six months since the blog was established we have had 501 posts and 33,573 hits from readers in 110 countries. Thank you all for your support.

New book about World War I British execution sites

Chloe Dewe Mathews
Tomorrow (Bastille Day) is the publication date for award-winning photographer Chloe Dewe Mathews's poignant new book Shot at Dawn, which includes photographs of British World War I execution sites. For a summary and several photos see this article in The Observer.

Disciplinary cases at New Zealand installations

The Manawatu Standard has run this informative article about disciplinary cases at several New Zealand military installations. Nothing dramatic in the data; as elsewhere, driving offenses make up a large part of the caseload.
Six internal complaints [at Ohakea] were laid and eight offences, for driving, assault and alcohol or drugs, went through to civilian courts. . . .
Personnel charged in civil court were obligated to report their offences to military police, but weren't subject to "double jeopardy", under the discipline act, but some penalties had a knock-on effect for their jobs.

Quote of the day

“My sense of that was she was protecting her base in Fort Leonard Wood, among defense contractors in St. Louis, in Air Force bases (near) Kansas City and so on,” he said. “Boy, it was a fine line. … She went pretty much toe to toe with one of her colleagues. But to me, at the heart of that was a strategy that allowed her to support women in the military and yet not alienate the brass, not alienate the military itself, and let them handle their own battles.”
Professor George Connor, chairman of the political science department at Missouri State University, referring to Sen. Claire McCaskill's refusal to support Sen. Kerstin Gillibrand's Military Justice Improvement Act earlier this year, as reported in the July 12, 2014 Kansas City Star.

Marijuana watch

Are marijuana-smoking retirees between a rock and a hard place? The UCMJ applies to retired regulars drawing retired pay and retired reservists receiving hospitalization from an armed force. See art. 2(a)(4)-(5), UCMJ. With some states allowing marijuana use (and non-prosecution policies from the Justice Department under federal law), how likely is it that retirees will be prosecuted under military law? Stars and Stripes has this to say.

On judicial creativity

William K. Suter
A new essay from the Hoover Institute argues that bad results follow when judges venture beyond interpreting the law in order to help sympathetic litigants.

An example offered in support of this thesis is United States v. Denedo (2009), where the Supreme Court agreed with the Court of Appeals for the Armed Forces (CAAF) that military appellate courts enjoy the power to consider writs of coram nobis even though such power has never been conferred by statute. It appears that the courts "stretched the law to throw him [Mr. Denedo, who faced deportation] a lifeline."

The author is the recently retired Clerk of the U.S. Supreme Court and a retired Army JAG Major General.

Friday, July 11, 2014

Retired justice to investigate how Canadian Forces deal with sexual misconduct and harassment

Justice (ret)
Marie Deschamps
Retired Canadian Supreme Court Justice Marie Deschamps will conduct an investigation into how the Canadian Forces deal with sexual misconduct and harassment, according to this Metronews article. "While she will be allowed to look into anything she thinks is relevant to help the military prevent sexual misconduct and sexual harassment, her investigation won’t go into the workings of the military legal system."

The assignment of this task to a single jurist is in sharp contrast to the multimember Response Systems to Adult Sexual Assault Crimes Panel and its three subcommittees in the United States.

Mutiny trial looms in Nigeria

A number of Nigerian Army soldiers will be prosecuted for mutiny, attempted murder, and other offenses arising out of a May 2014 attack on a major general commanding the 7th Division following the deaths of four soldiers in an ambush. Details remain sketchy judging by this article in The Will.