After the leaks comes the lawsuit

Remember the Alaska National Guard? Well, now it seems [see this report in Military Times] that four members of the ANG have sued the federal government in the United States District Court for the District of Columbia for leaking Privacy Act information to the media and state officials:

The plaintiffs’ attorney, Mathew Tully, said his clients have had consensual relationships with other adults and sought to blow the whistle on inappropriate activities.

Tully said Wednesday that he doesn’t know who leaked the records. Tully said he believes the plaintiffs were singled out as part of a “smear campaign,” with selective information released that did not include responses from the men or final outcomes.

The lawsuit also claims the National Guard kept information in its records related to the plaintiffs that wasn’t relevant and was inaccurate.

Tully said he believed the Anchorage Police Department and FBI had opened investigations into the release of the records.

Cornell Law School clinic weighs in on U.S. efforts to stem sexual crime in the armed forces

The Cornell Daily Sun reports on a worthwhile initiative by two clinics at Cornell Law School:

The United Nations Committee Against Torture will review the United States’ compliance with the UN Convention Against Torture from November 11 to 13. Cornell Law School’s Avon Global Center for Women and Justice and Global Gender Justice Clinic, with support from relevant organizations advocating on behalf of military sexual assault survivors, have submitted a shadow report to the Committee, outlining U.S. shortcomings in protecting service members’ fundamental rights and suggesting reforms. In particular, decisions about how sexual assault complaints are resolved should be taken out of the chain of command, so that commanders do not control whether or not these crimes are prosecuted. The U.S. military is made up of outstanding American women and men who have devoted their lives to serving our country. The government should ensure that their noble and critically important work is not tarnished by the scourge of sexual violence.

The article also observes:

All citizens would like to think that if they reported a crime that was committed against them, it would be investigated promptly, thoroughly and unbiasedly. However, when service members experience sexual violence in the military, the Manual for Courts-Martial* gives the accused’s commander the power to determine whether the case will be investigated and prosecuted. But what if the commander perpetrated the abuse? Or the commander simply does not want prosecution of a sex abuse case to damage the reputation of the unit? Because commanders might have close working or personal relationships with the accused, their partiality compromises the military’s ability to afford meaningful redress.

Additionally, because of U.S. Supreme Court precedent in cases like Cioca v. Rumsfeld, survivors of military sexual assault cannot access federal courts for redress. So if a commander decides not to investigate or prosecute a service member’s case, the survivor cannot appeal the decision. If all civilian citizens can seek justice in federal courts, then shouldn’t the people who are protecting our freedom have that same right?

* Actually the commander's power to decide who shall be prosecuted for what comes from the Uniform Code of Military Justice, which is an Act of Congress. [Footnote supplied.]

The U.S. military justice system's structural noncompliance with the International Covenant on Civil and Political Rights will come before the UN Human Rights Council during the separate Universal Periodic Review next Spring. Click here for a post about the shadow report documenting the noncompliance.

Military death sentences stayed in Nigeria

A federal high court judge in Nigeria has stayed the execution of 12 soldiers who had been sentenced to death by a court-martial. The case has been adjourned until December 8, 2014. Details are in this Daily Trust article. 

NGOs object to Egyptian decree expanding military court jurisdiction

Fifteen NGOs have objected to the recent decree (No. 136/2014) expanding the jurisdiction of military courts in Egypt. Their joint statement observes in part:

Expanding the jurisdiction of military courts over the trials of civilians breaches the 2014 constitution which restricts the mandate of military courts over civilians to attacks against military personnel and establishments. The new decree is a masked state of emergency as it denies citizens' their constitutional right to be prosecuted before their natural judge. The decree also circumvents the constitutional guarantee by assigning the armed forces, along with the police, to the protection of public establishments thus making them fall within the mandate of military establishments. This creates a parallel judicial system, and could potentially lead to the trial of thousands of civilians before military courts that lack the minimum standards of fair trials.

Since June 30, 2013, civilians accused of terrorism-related offenses targeting the armed forces' personnel, checkpoints or facilities have already faced military trials in Ismailiyya, Suez and Hiekstep military courts, and have been detained in military prisons. According to lawyers, the Ismailiyya military court alone reviews between 40 – 140 misdemeanors cases involving civilians three times a week, and between 20 – 45 weekly felony cases. Due process rights are not upheld in these military courts. For instance, suspects tried in front of the Ismailiyya military court have complained of torture and other forms of degrading treatment at the time of their arrest and in custody. Some defendants claimed to have signed confessions under torture. None had access to a lawyer of their choice during their initial interrogations by arresting authorities or the military prosecution, undermining the right to adequate defense. These trials are held in maximum security military establishments that make them inaccessible to the defendants' lawyers and families.

While a number of amendments to the military justice code introduced in February 2014 rectified some of the problems surrounding military trials, namely the introduction of a right of appeal in misdemeanor cases and cassation for felony cases, proceedings in military courts still flout the basic guarantees of fair trial, including the right to be tried by an independent, impartial tribunal. The military judiciary falls under the authority of the defense ministry, and all the judges and prosecutors are military personnel of various ranks subject to all disciplinary regulations set forth in the military service laws. The minister of defense, based on recommendations from the head of the Military Judicial Authority, appoints military judges, who as such do not enjoy the same level of independence of judges in the regular court circuits.

Hearing on human rights violations within the Bolivian Armed Forces

The Inter-American Commission on Human Rights is currently in session and this past week held hearings on the human rights situations in different countries.  On Thursday morning (9-10 a.m., Padilha Vidal room) a hearing was held with representatives of the Bolivian Ombudsman and the Bolivian State.  The Ombudsman charged that human rights violations were occurring within the Bolivian military and police and that the State was doing nothing about it.  Among other things, they charged that the State had adopted a decree (Decreto 1875) permitting the recruitment of  minors, 17 years old, although the international standard is that you have to be 18, and also that some 32 members of the Armed Forces died violent deaths for which no one has been tried, sentenced and convicted.  The State responded that President Evo Morales was sensitive to this issue since he had served in the military and had known hunger during this period.  So a priority has been to provide adequate food to the Armed Forces.  In addition, young recruits are no longer put in the position of serving as slaves to senior officers, dignity has been restored to the Armed Forces.  The hearing was especially interesting because of the issues it raised, the unusual context of members of the military alleging violations of their human rights, and the fact that the Ombudsman is a government official.

A video of the hearing can be found on the Commission's website.

Latest ISMLLW News Flash is available

The International Society for Military Law and the Law of War's October 2014 News Flash (No. 21) is now available online here.

Exam question (except this is for real)

Iowa State Senator Joni Ernst

Next Tuesday is Election Day in the United States. Among the numerous hotly contested races is one for United States Senator from Iowa. One of the candidates is a state legislator who is a lieutenant colonel in the Iowa National Guard. She has made disparaging remarks about President Barack Obama. The Iowa Code of Military Justice (ICMJ) provides:

29B.85  CONTEMPT TOWARD OFFICIALS.

Any person subject to this code who uses contemptuous words against the president, the governor, or the governor of any other state, territory, commonwealth, or possession in which that person may be serving, shall be punished as a court-martial may direct.

See also Uniform Code of Military Justice (UCMJ) art. 88. Consider the candidate's comments as quoted in this Des Moines Register letter to the editor from a Vietnam-era veteran:

Earlier this year, [State Sen. Joni] Ernst said that President Obama (her commander in chief) has "overstepped his bounds" and that he was a "dictator" and that he "should be removed from office" or "impeached."

The veteran also wrote:

Our commanding officer told us, "Nobody in the military is allowed to publicly say anything negative or contemptuous about our commander in chief." They told us that we would be prosecuted if we did. [Emphasis added.]

1. Has this candidate violated either the UCMJ (as the letter-writer contends) or the ICMJ? If so, by making which of the quoted comments?
2. Is she subject to the UCMJ when not in federal service?
3. Are her remarks protected by the First Amendment?

House arrest issue in Colombia

Supreme Court of Colombia

In addition to the roiling debate over the military justice bill, a controversy has arisen over whether elderly or sick military prisoners can be transferred to house arrest. Colombian law permits this for prisoners who are over age 70, but there is an exception for those convicted of aggravated murder, rape or crimes under the Rome Statute of the International Criminal Court. The Supreme Court will have to decide whether there is residual power to permit house arrest despite the statutory exception. Details in this report from El Observador.

Rock bottom

Carol Rosenberg

Every time you think you've heard it all about the military commissions at Guantanamo, some new item comes across the screen. In that vein readers' attention is invited to a Miami Herald article headlined "War court censors word ‘female’ in legal argument", by the doyenne of the Guantanamo press corps, Carol Rosenberg.

Decorations watch

Fresh on the heels of the conviction of a Canadian officer for wearing decorations she had not been awarded comes this decision of a panel of the United States Court of Appeals for the Ninth Circuit upholding the conviction of Elven Joe Swisher, a U.S. Marine Corps veteran, for wearing decorations he hadn't earned, at a Marine Corps League event. Click here for Stars and Stripes' story. Ironically, Congress (as the Ninth Circuit mentions in a footnote) has repealed the provision that formerly punished the wearing of unearned decorations -- but too late to help this defendant. The repeal would presumably bear on whether the government will seek rehearing en banc or review by the Supreme Court.

Speaking of medals, the United States Court of Appeals for the Sixth Circuit will hear a case seeking to compel the Army Board for Correction of Military Records to consider a request by the widow of a World War II officer that it award her late husband the Congressional Medal of Honor, according to this Associated Press story. 

The right of women soldiers to care for minor children

The Superior Court of Justice of the Canary Islands, Spain, issued a judgment in favor of a female soldier who sought to be excused from various tasks such as manoeuvres, guard duty, etc. because she had two children under the age of 12.  The judgment was practically identical to one that the same court issued on March 10, 2014, which was the first in Spain to recognize the civil right of members of the military to the full conciliation of their family and work life when they have minors to care for.

This second judgment was notified on October 2, 2014.  The petitioner appealed the order of her Colonel, Chief of the Regiment of Light Infantry, "Tenerife 49," to which she is assigned, who had modified the conditions of her reduced work schedule so that she would have "a minimum operative preparation," or in other words, that she would be fit and ready.

The Colonel, issued his Order on August 1, 2012, for the male and female members of the military under his command, who had received a reduced work schedule, so that they would maintain "50 % of the guard duty and services, as well as a minimum of 10 days participation in SIC/SADAV exercises.

Nevertheless, in both the current and March 2014 judgments, against which there is no further recourse, and in which Judge Juan Ignacio Moreno Luque-Casariego presided, the Superior Court of Justice of the Canary Islands is conclusive:  The Court finds that there is no reasonable and individualized justification to cover "the necessities of service," but rather that the Order is supported by "a mere invocation of a good state of preparation" of military members with a reduced work schedule and exoneration of services, guard duty, manoeuvres and the like.  The Superior Court of Justice considers that the resolution of the Colonel-Chief "incurs in an evident fraud of the law" in so far as it "cares about the minimum operative preparation of the female soldier" and that the Regiment of Light Infantry "does not lose its operative capacity," whereas it violates the 2007 Law for the Effective Equality of Women and Men as well as the 2011 Organic Law on the Rights and Duties of Members of the Armed Forces.

Military trial for retired officer in Egypt

Egypt has just convicted a general who retired in 2010, following a trial in military court. According to this report in Middle East Online:

Tharwat Guda, a former officer in general intelligence, was jailed for a year Wednesday in a military trial sparked by a complaint from his former institution that he had disclosed information "damaging to national security."

Unclear is how he could know anything about the matter, as he retired in 2010, the year before long-time president Hosni Mubarak was driven from power and Morsi elected to replace him.

At issue was an interview he gave to private newspaper Al-Watan in September, state news agency MENA reported.

When asked whether the intelligence services had "conspired" against Morsi by feeding him false information, he said: "No. The intelligence services did not conspire against Morsi, it was he who conspired against Egypt.

"We knew he was a traitor even before he became president, so why give him information?"

Are retired officers fair game for military prosecution? 

Military justice bill passes Colombian Senate

The controversial military justice bill has been passed on second reading by the Colombian Senate. El Tiempo reports:

Military courts would not handle crimes by "members of the security forces" that constituted "crimes against humanity, and crimes of genocide, forced disappearances, extrajudicial executions, sexual violence, torture and forced displacement."

This means that, for example, so-called 'false positives' would be tried by the ordinary courts and not by the military.

The bill also includes a paragraph that gives the prosecutor, in coordination with the military courts, a year to review "all cases against members of the security forces" and move "to the military justice those that do not come within the jurisdiction of the ordinary courts." [Rough Google translation]

El Espectador has additional coverage here. Columbia Reports says "[t]he bill still has to be passed by the House of Representatives and be approved in four debates before the end of the congressional term in June of next year."

A surprising ruling in Spain

A Spanish military court has rejected an indictment of five soldiers charged with torturing unidentified detainees in Iraq. A full report, in Spanish, appears in El Pais:

[I]n a surprising interpretation, the court ensures that the scope of protection of the Geneva Conventions, the basis of international humanitarian law, "reaches out to prisoners of war and civilian personnel, but in any case to terrorists." And it suggests the possibility that the victims of abuse were "three suspected terrorists", according to the indictment, apprehended on January 27, 2004 at the detention center Base Spain,  were "allegedly involved in an attack on Mortars Base Tegucigalpa."

The fact that "there is no certainty about the status of those attacked [who were prisoners, civilians or terrorists], reasonable uncertainty about the application [to them] of the Geneva Conventions" and even about "the rules the Spanish Armed Forces should follow in the treatment of detainees led the court to conclude that the judge rushed to issue the indictment, which is withdrawn.

The idea that the Geneva Conventions do not apply to the alleged terrorists is not new. It was the doctrine applied by President George W. Bush to launch the prison camp at Guantanamo (Cuba). The US administration found that detainees in Iraq and Afghanistan were not prisoners but "unlawful enemy combatants" and therefore refused to apply the Geneva Conventions and placed them under the jurisdiction of the ad hoc military commissions. However, the U.S. Supreme Court in 2006 rejected this interpretation, ruling that military commissions were illegal and that the Geneva Conventions applied in Guantanamo. [Rough Google translation]

There is a chance the case will be pursued in civilian court, although the maximum punishment there would be much lower than in a military court (8 years versus 10-25 years). 

4th Plenum and What Ruling the Military According to Law means

China's leadership met from October 20-23, 2014 for its Fourth Plenum.  It approved a document on improving the country's laws and legal system.  The Central Committee of the Chinese Communist Party's Fourth Plenum Decision, translated here (where its full name is  given), contains a section on the reform and improvement of Chinese military law.  This appears to be a first in China.

Plenum decisions set out the framework points that the leadership has agreed to (as drafted by large teams of uncredited people).   It seems likely that the legal staff of the Central Military Commission was part of those teams.

Several key points for Global Military Justice Reform readers are set out below, without deeper research. Further analysis will be provided as time permits.

•  Bring all military normative documents into the scope of inspection, perfect inspection systems, strengthen the scientific nature, focus and applicability of military regulations and structures.
• This seems to refer to issues of the drafting, review, and incorporating professional expertise into military legislation.  It likely refers to those issues identified by Chinese military legal experts earlier.
• Expand the implementation strength of military regulations. 
• Complete military legal system work structures, establish and perfect legal work organs in leading organs. 
• This likely refers to expanding the system seen in civilian government bodies of having a legislative affairs office ( 法制办）to take charge of drafting and reviewing legislation.  
• Reform military judicial systems and mechanisms, perfect uniformly led military judicial and prosecutorial systems.  
• Issues with the military justice system have been identified by Chinese military legal experts earlier.  Also, the Fourth Plenum Decision anticipates reforms to the civilian civil and criminal justice systems and any of those implemented in the civilian courts will need to be implemented in the military courts.  
• Guarantee the lawful rights and interests of soldiers.
• Establish a military legal advisor system, install military legal advisors in all leadership bodies, perfect legal consulting guarantee systems for major policy decisions and military actions.
• This seems to refer to having a greater number and role for military lawyers, and integrating the review of legal issues into major military policy decisions. 

•  Reform military discipline inspection and supervision systems.

The hard work will be in designing and drafting the structures and legislation underpinning each of these points and implementing them.  加油!

Journalists facing military trial in Cameroon

Cameroon Radio Television's report on the three journalists facing trial by a military court in Cameroon is as brief as it is disturbing:

The three journalists are accused of [withholding] of sensitive information.

On the first day of their court appearance, the examining judge Aline Mbia Ondoua notified them of the charges against them. 

The judge let them go but instructed them not to leave the national territory.

The three will have to present themselves at the military tribunal every Monday before judgement begins in earnest. 

The legal troubles of these three journalists began on 24th October 2014, three days after Maitre Harissau (currently in detention) was formerly indicted for a number of accusations including insults to the Head of State and hostility to the Fatherland.

The court maintains that, a sensitive document that originated from Maitre Harrisau was handed to the three journalists between 23rd and 25th July 2014.

The document which is still unknown to the public is considered sensitive enough requiring the media men to have made the information known to competent authorities.

Austerity strikes Italian military justice

The Italian military justice system's footprint appears to be shrinking. According to this article, the Military Tribunals in Naples and Verona are being closed as an economy measure. Efforts are being made to reverse the decision. The Naples court dates to the era of Italian Unification.

Note-taking forbidden in Thai military courts

The military courts that have played an increasingly prominent role in Thailand are coming under attack from NGOs for several reasons. The Nation has this report:

Holding closed-door trials in military court for civilian defendants and forbidding observers from taking notes in other cases undermines the due process of law, two human-rights activists said.

They voiced these concerns after the military court sentenced two anti-coup protesters to suspended prison terms on Monday, while instructing both local and foreign observers to not take notes during the trial. The court also said it would proceed with four lese majeste cases behind closed doors.

"This is a cause for serious concern and goes against the National Council for Peace and Order's assurance that the military court would follow due process [of law]," Sunai Phasuk from Human Rights Watch (HRW), said.

He said he was most concerned about whether those facing serious charges, such as violating the lese majeste law, would be tried fairly, as they cannot appeal given that the military court is the court of first and last instance.

Yingcheep Atchanont, project manager at iLaw, an NGO advocating legal reform, on Monday went to observe the trial and sentencing of the two anti-coup protesters but was instructed not to take any notes.

*  *  * 

Yingcheep speculated that the judges might have banned observers from taking notes because they know this is not something the international community would appreciate.

Integrity and accountability of the military justice process demands insusceptible prosecutorial independence and impartiality and the public perception thereof

A recent Blog post titled “Do Judge Advocates General have incompatible roles?” by Professor Fidell reports on a story out of Israel which raised, in his words, “an issue of principle.” It also led him to conclude that countries that have Directors of Military Prosecutions should not only be independent from the chain of command but should also be independent of the Judge Advocate General if the JAG functions include advising the service chiefs (chain of command) or subordinate commanders.  I agree fully with that proposition. For that reason, I very much deplore the fact  that although Canada now has a Director of Military Prosecutions the latter does not have the required level of independence from either the chain of command or the JAG.

            In Canada, the JAG is first and foremost a political appointee directly and wholly responsible to a political master (Minister of National Defence) who, in turn is answerable to the Governor in Council (Cabinet).  

            The Canadian JAG has been charged with a cluster of functions which intersect with one another and over which the JAG has a powerful contaminating influence. Consider:

·       The JAG provides legal advisory services to a number of senior officials such as the Governor General, the Minister of National Defence and the Chief of the Defence Staff. 

·       The JAG is the military legal advisor to the chain of command.

·       The JAG superintends the entire military justice system.

·       The JAG has overall responsibility for the Prosecuting function as well as the Defense counsel services despite the fact that each of these functions required independence and impartiality from the JAG, the chain of command and separation from each other.

Since the Canadian military justice system does not operate constantly in the public spotlight, there is little public accountability as to the JAG’s independence from both the Minister of National Defence and government as a whole, particularly but not limited to the supervision and exercise of the prosecution function.  This raises the possibility (or the perception thereof) that the JAG could take direction from the Cabinet or the Minister of National Defence on a given prosecution or defense case without this matter becoming known. This perception applies as well to both the prosecution and defense counsel services since they are not independent from either the JAG or the chain of command.

PLA: lawyers wanted

We'll have more in due course about the recently announced policy changes regarding Chinese military law, but here's an interesting excerpt from a story in the South China Morning Post:

The PLA [People's Liberation Army] will add legal advisers to its lower ranks -- a move one expert said could help protect against any possible military coup.

In the past, only brigade commanders or more senior officers had legal consultants, said Zeng Zhiping, a military law expert at the Nanchang Institute of Technology in Jiangxi. Without such advisers, lower units were at risk of blindly following superiors in times of instability, Zeng said.

"Some ambitious senior officials may abuse their position and cultivate a power base, using blind allegiance from subordinates, sowing the seeds of a potential military coup."

Explanation of sentence in Canadian unauthorized decorations case

Col. Michael R. Gibson, CF
Military Judge

The website of the Chief Military Judge of the Canadian Forces is most excellent, particularly because it provides access to the Reasons for Sentence given by military judges in specific courts-martial. A recent case, noted here, concerned a Lieutenant Colonel who was prosecuted for wearing decorations she had not been awarded and, as the parties had jointly urged, sentenced to a severe reprimand and a $5,000 fine. It turns out that she had previously been convicted of three other offenses involving dishonesty. Excerpts from Judge Michael R. Gibson's Reasons for Sentence follow:

[7] The court must impose a sentence that is of the minimum severity necessary to maintain discipline, efficiency and morale. Discipline is that quality that every Canadian Forces member must have that allows him or her to put the interests of Canada and of the Canadian Forces before personal interests. This is necessary because members of the Canadian Forces must promptly and willingly obey lawful orders that may potentially have very significant personal consequences, up to injury or even death. Discipline is described as a quality because ultimately, although it is something which is developed and encouraged by the Canadian Forces through instruction, training and practice, it is something that must be internalized, as it is one of the fundamental prerequisites to operational effectiveness in any armed force. One of the most important components of discipline in the military context is self-discipline. This includes, in large measure, the strength of character to resist engaging in conduct which is wrong or unethical. The actions of Lieutenant-Colonel [Deborah L.] Miller demonstrate that this is an area in which she has been deficient.

*  *  * 

[16] I was not provided with any cases similar on their facts to the present case as sentencing precedents by either the prosecution or defence. If this were a first offence I would have no difficulty accepting the sentence jointly recommended by the prosecution and defence as appropriate. What creates some difficulty in the present case, however, is that it is not a first offence. The offender, Lieutenant-Colonel Miller, was convicted at court martial of offences of dishonesty shortly before the date of 20 December 2012 to which the charges currently before the court relate. This conviction must have been fresh in her mind on that date. Yet she chose to continue to wear medals and commendation insignia to which she was not entitled.

[17] To some outside the military community this may seem a matter of minor import. It is not. The court notes that "improperly wearing a uniform, rank badges, ribbons or medals to which the accused person was not entitled" is actually cited in Note G to QR&O article 103.60 as a paradigm example of an action prejudicial to good order and discipline. But what is truly significant about Lieutenant-Colonel Miller's conduct in this matter, however, is what it says about her integrity as a senior officer. Coming so closely on the heels of her previous convictions for offences of dishonesty, it must raise significant questions about her integrity and judgment.

How would such an offense have been handled in your country? In the United States, it would likely have resulted in nonjudicial punishment (a reprimand and forfeiture) followed by retirement in the next lower pay grade.

Do Judge Advocates General have incompatible roles?

Maj Gen (res)
Avichai Mendelblit

Haaretz, the Israeli newspaper, has this interesting op-ed by Bar-Ilan University professor Yedidya Stern concerning a current controversy over whether a former Military Advocate General should be indicted. The author suggests that the Attorney General is required to perform two inconsistent roles -- advisor and prosecutor -- and that these should be separated:

A fascinating example of the confusion between the two arose in the case of the current cabinet secretary and former military advocate general, Avichai Mendelblit.

When Mendelblit was military advocate general, then-Chief of Staff Gabi Ashkenazi told him he had a copy of what has since been dubbed the “Harpaz document” and asked what he ought to do about it. The following day Mendelblit advised the chief of staff to inform the attorney general, which Ashkenazi did.

During the day in between, Mendelblit spoke with one of the attorney general’s aides but did not tell him what he had heard from Ashkenazi. Because of this delay, police have recommended indicting him for obstructing an investigation and breach of trust.

In this case, the grotesque and the tragic meet: An outstanding public servant, a major-general in the reserves, has been tarred for something that doesn’t reach the level of even a trifling offense. One must hope the attorney general will quickly decide to reject this bizarre recommendation.

Nevertheless, this story raises an issue of principle: Should the military advocate general act as the chief of staff’s legal adviser (as stipulated by the Military Justice Law), or as “the person in charge of imposing law within the army” (as stipulated by that very same law)? If he is the chief of staff’s attorney, the information he received from Ashkenazi was covered by attorney-client privilege and he was obligated to keep it confidential. And if so, what was his crime?

That’s why the dual identity of the legal adviser (whether the government’s or the army’s) constitutes a trap. If he acts on behalf of his client, he’ll be accused of undermining the public interest. If he acts on behalf of the public interest, his client – the chief of staff or minister – will be deprived of independent legal advice.

Even though splitting the job is necessary, many oppose the idea out of fear of undermining the rule of law. What I’m suggesting is the exact opposite: The role must be split in a way that will bolster both offices’ ability to do their jobs. We need fresh thinking, which must then be translated into law, to ensure that both legal counsel and the rule of law are strengthened while criminal prosecution is bolstered.

What this suggests is that countries should not only have Directors of Military Prosecutions who are independent of the chain of command, but that they should also be independent of the Judge Advocate General if the JAG's functions include advising the service chief or subordinate commanders. Query: doesn't it also mean that the U.S. Attorney General could either supervise federal criminal prosecutors or advise the President and cabinet departments -- but not both?

Alaska National Guard misconduct emails trickling out

A freedom of information request from Alaska Public Media and The Alaska Dispatch News has begun to yield results. Documents concerning misconduct in the Alaska National Guard are starting to be released, but the redaction process will take time: the index alone is 352 pages long. Over 10,000 documents are involved. Details here.

Close shave in Nigeria

A man sentenced to death by a Nigerian military court, who spent 19 years on death row and watched four others being hanged, has been freed. Details here from the Associated Press:

He was saved because prison officials realized that his sentence by a military tribunal called for him to be shot by a firing squad.

Human rights lawyers filed an appeal noting he had been convicted while the country was under a military dictatorship notorious for unfair trials and torturing confessions from prisoners.

A court of the Economic Community of West African states in June ruled that [Thankgod]* Ebhos should be freed.

* Yes, that is his name. 

Military justice reform in Mexico

The Brown Political Review has an excellent summary of the state of play regarding reform of the Mexican military justice system, prompted by The Tlatlaya Case:

The Tlatlaya case will continue to put to the test the reach of civil jurisdiction as a tool to deter human rights violations by the military. The reform to the military penal code paved the way for some justice in the Tlatlaya case already, and can have an even greater impact if and when the government toughens its response to investigation and prosecution. But it may, unfortunately, take more than Tlatlaya before we can expect the government to be willing and able to respect the spirit of the law expressed in the new military penal code.

In fact, the Mexican Supreme Court has been reinterpreting the applicability of military jurisdiction to expand its scope on other frontiers. On October 20, in resolving a case of amparo forwarded by the soldier Luis Alberto Martínez Campos, six out of ten ministers of justice supported that the military tribunal is competent to try federal crimes committed by soldiers if and whenever there are no civilians involved. Campos was accused in a military court of crimes against health, specifically of permitting the traffic of marijuana into the United States. He filed a writ of amparo, a form of constitutional relief, claiming that since he was being accused of a crime against health he couldn’t be tried in a military court. In the Supreme Court’s analysis, the majority argued that as the crime did not affect civilians, the sentence handed out by the military court was valid. The opposing ministers, on the flipside, invoked the Inter-American Court rulings, specifying that, in times of peace, an on-duty officer can only be tried in military courts if the crime pertains to the military discipline itself. This recent decision reveals the deep fractures in the Mexican Supreme Court. The walled garden approach to military justice would appear to be yet another deliberate attempt to block investigation and prosecution against officers involved in the trafficking of narcotics, allowing systemic corruption to metastasize at the heart of Mexican society.

Military control over cases that should concern civilian courts undermines central constitutional principals, rights and institutions: it subverts the rule of law and access to justice. Atrocities like Tlatlaya capture the public imagination, reminding us that empowering the military justice system corrupts the right to fair recourse and submits military officers and citizens — guilty or innocent — to an arbitrary application of the law.

Tlatlaya may point Mexico to a new direction, but as long as the state keeps granting military courts extraordinary power to oversee crimes that do not pertain to their functions, the further it promotes the corruption and corrosion of its own institutions, and the further it entrenches itself in a cyclic war it does not have the institutional capacity or integrity to end.

Quote of the day

“This decree means we will destroy the civilian courts and make military justice the norm,” said Mohamed Zarea, director of the Cairo-based Arab Penal Reform Organization, which offers legal assistance to prisoners. “We can’t just turn all of our state institutions into military institutions.”

The Washington Post's report on the expansion of

Egyptian military court jurisdiction

The Post's article observes:

[M]ilitary trials in Egypt are often held in secret, and judges mete out swift verdicts that can be challenged only before a military appeals court. Activists say civilian lawyers have trouble navigating the military justice system, leaving defendants without proper legal counsel.

Experts are worried that the scope of the military’s expanded jurisdiction will permanently sideline civilian courts in favor of army tribunals.

More debate over the Colombian military justice bill

Dr. Fernando Borda Castilla

The Colombian military justice bill continues to spark heated debate. Here is a recent op-ed in El Heraldo by Dean Fernando Borda Castilla of the Autonomous University of the Caribbean. While the bill makes clear that certain serious offenses by military offenses must be tried in the civilian courts, it does not do so for so-called "false positives" and provides a year for negotiations between civilian and military authorities to decide which cases belong in the civilian courts and which belong in military courts. Some opponents view the current bill as the practical abolition of military justice. Others point to its effort to render the system independent of command through tenure in office and protected salary.

Military court prosecutes journalists in Cameroon

Two more journalists have been summoned to military court in Cameroon on charges that they failed to notify authorities of military activity likely to harm national defense. This article summarizes (in French) a string of cases against journalists. Journalists' organizations have protested.

And now there are two

Major Ahmad Zaidi, RMAF

Five of the seven charges against Royal Malaysian Air Force Major Ahmad Zaidi have been dropped. He now has to defend against two specifications of violating standing orders by speaking to the media, according to this account in The Rakyat Post. This article in The Malay Mail indicates that "the prosecution had succeeded in proving a prima facie case for two of the five charges — for publishing an article without consent of the Defence Ministry, and revealing the contents of official documents on the ink without authorisation from the Malaysian Armed Forces Council." The defense will open its case on November 9.

Possible roadblock to Indonesian military court reform

Will the new cabinet in Indonesia support reform of the nation's military court system? The answer is it's not clear but there may be worrying signs, according to this report in The Jakarta Post:

[NGO Imparsial program director] Al Araf raised doubts that with [retired Army chief Gen.] Ryamizard [Ryacudu] in power [as Defense Minister], the ministry would support the much-awaited amendment to the 1997 Military Tribunal Law to allow civilian courts try soldiers involved in non-military offenses.

Use of military courts expanded in Egypt

Egypt has set a state of emergency that will permit the use of military courts for three months in the restive North Sinai area. This, and an expansion of the crimes that can be tried in military courts, is proving controversial, according to this article in Daily News Egypt:

“Referring terrorism cases to military justice is a necessity for the country’s highest interests,” said Naguib Gabriel, head of the Egyptian Union of Human Rights Organization.

But for 30 years, having a state of emergency in Sinai has not solved anything, said Sara El-Sherif, a member of No Military Trials for Civilians group.

“Generally, we refuse military trials for civilians,” El-Sherif said. “The new draft is unconstitutional and goes against what the people chose. They are adding to the constitution without the people’s consent.”

“This is an act of revenge that will not solve terrorism. Terrorism should be solved through fair trials,” El-Sherif added.

For four years the number of people tried in front of a military court has increased, El-Sherif added. Standing in front of a military court for damaging public facilities would multiply the number by 10, she said, adding: “This is further consecration of injustice.”

Israeli military defense counsel pushing back on warrantless cellphone searches

This article from Haaretz reports on resistance being put up by Israel Defense Force defense counsel in response to the military police's practice of routinely searching soldiers' cellphones without a search warrant. This is in contrast to the practice followed in civilian law enforcement:

“There’s an abyss between the military and police procedure. Accessing information from cellphones constitutes a blatant breach of privacy, in compete contrast to police procedure, which is in keeping with the law,” Chief Military Defender Col. Asher Halperin said in July.

The uniformed lawyers are threatening to take the matter to the High Court of Justice. The Justice Ministry has the matter under advisement and the Knesset is considering a bill to resolve the issue.

Top Bolivian jurist states that the military must respect the Constitution

Constitutional Court President Ruddy Flores

Over the last several months, three Bolivian NCOs have been detained following their arrest for their role in leading protests against the armed forces. Jhonny Gil has been detained since May 15 and Franklin and Freddy Colquhoun Sucojayo have been detained since July 2.

When asked about the arrest of these three men, the President of the Plurinational Constitutional Court (TCP), Ruddy Flores, stated that the new Constitution establishes a clear rule: there is no jurisdiction that is outside the bounds of the Constitution, and military law must respect that.

The lawyers for the three men say that the charges against them violate constitutional guarantees because of obstacles in the military justice system that prevent their release. Article 125 of the Constitution provides that any person who is illegally prosecuted, improperly charged or otherwise deprived of personal freedom can bring a "Freedom Action" in the ordinary courts. Gil's lawyer has already filed such an action.

President Flores recalled that the TCP provides guidelines to modify military law so as to comply with the Constitution and respect for international conventions protecting human rights.

New feature: person of the year

Person of the Year?

Global Military Justice Reform will celebrate its first anniversary in January. In the run-up to that milestone, it's not too early to review the people who have made the news here. Should there be a Person of the Year? So far, the newsroom is voting 1-0 for Major Ahmad Zaidi (left) of the Royal Malaysian Air Force. (Use the "search this blog" tool to learn more about him.) Who's your nominee?

Why the increased reliance on military courts in Lebanon?

Justice Minister Ashraf Rifi

Gulf News has published this article by Joseph A. Kechichian, explaining Lebanon's increasing reliance on military courts. It reports in part:

[I]t fell on the judiciary to play the crucial role in confronting the legacy of political violence, though few believed that anything concrete can be accomplished as long as officials continued to exert political pressure on the country’s institutions. 

Nowhere was this more evident than the pressure imposed on judges entrusted with terrorism files that follow arrests made after each bombing. Rather than go through civil courts, however, Beirut conveniently turns to the military system, which is composed of a military court of cassation and a permanent military court. It does so because Lebanese officials no longer rely on civilian courts, composed of the courts of first instance, appeal, and cassation, for purely political reasons and where judges are allocated posts based on their religious affiliations. Regrettably, serious offenses are automatically turned over to military courts on the assumption that these have a specialized criminal jurisdiction restricted to arms and ammunitions, even if the overwhelming number of suspected criminals are civilians.

A few days ago, the sitting Minister of Justice Ashraf Rifi raised serious questions over the Military Tribunal’s impartiality, and even called for the court’s writ to be limited to try accused men and women in uniform. “We want to stop trying civilians in the military court,” Rifi was quoted in the pro-March 14 al-Liwa’ daily, arguing that military officers “are not [law] specialists, and there are doubts over the fairness of the [court’s] verdicts.”

Egypt to expand jurisdiction of military courts

The Egyptian cabinet has voted to expand the jurisdiction of military courts to cover terrorism cases. According to Al Ahram:

The amendments would address assaults against police and armed forces buildings and personnel, as well as public facilities, public properties and road-blockings.

The Egyptian constitution, [promulgated in] early 2014, addresses military courts in article 204. It limited powers of the military court to ''direct assaults" against military zones, facilities, buildings and border zones.

The cabinet reached the decision during an emergency meeting headed by Prime Minister Ibrahim Mahlab. The draft law was introduced after President Abdel-Fattah El-Sisi had vowed swift response to Friday's attacks [in Sinai, in which 31 soldiers were killed].

The proposal needs to be ratified by El-Sisi, who holds legislative power in the absence of parliament, to become law.

Military law and the Guardia Civil

There is continuing controversy in Spain over the application of military law to the Guardia Civil. According to Juan Fernandez, provincial head of the Unified Association of the Civil Guard, as reported here:

Fernandez said that "we are still trying being treated as if we belonged to the armed forces and we apply military law."

According to Fernandez, the "remilitarization" of the Civil Guard is designed to halt the advance of professional associations in the military. In fact, AUGC has recently gone further, and has submitted an application for registration as a trade union with the Ministry of Labour. And their leaders are willing to fight in court, at both the Constitutional and European level.

Juan Fernandez notes that changes in the Military Penal Code include very ambiguous aspects to justify its application, such as "safeguarding the discipline" or "service needs".

Fernandez believes that the "revival" of cases by the military court is due, among other things, to the need to justify its own existence, and notes that there are currently insufficient cases per province to maintain a body of this kind. He explains that there are currently no offenses that justify the application of the Military Penal Code (MPC) to civil guards, such as "treason" and "sedition". [Rough Google translation]

Resignation in protest: a Foreign Policy essay by Peter D. Feaver

Prof. Peter D. Feaver

Duke University Professor Peter D. Feaver has written this thought-provoking essay for ForeignPolicy.com on resignation as a form of protest by military officers. When you read it, be sure to look at the comments that follow.

Do you agree with the dim view Prof. Feaver takes of military resignations in protest? Certainly we lack a tradition of such resignations, but can you think of situations in which resignation was called for? For example, should the Judge Advocates General have resigned, rather that merely pushing back, when they learned that U.S. officials were torturing people? Tom Ricks has written that

they became the first line of defense against the use of torture and other [George W.] Bush Administration transgressions because they were "double professionals," heedful of their dual duties both as officers and as lawyers. This made them more likely to refuse to break the law or tell others to do so.

True enough. But why not resign and drive the point home? As the editor's favorite author wrote in "Where is the Courage to Walk Away?" in Navy Times in 2005, "memos that do not see the light of day until years later, and then only when pried out of the government by determined senators, are no substitute."

Dutch court rejects challenge to military member

Col. Thom Karremanns

A court in Arnhem yesterday rejected a request that a military judge be disqualified in a case seeking a criminal prosecution of Col. Thom Karremanns, the commander of the Dutch Battalion at Srebrenica, and two others. From the judgment:

Grounds of the objection 

In support of the recusal request -- in short -- the following arguments were presented. 

The details of this case require the application of Article 68, paragraph 3 of the Judicial Organisation Law to this specific case, in violation of Art. 6, ECHR. Applicants claim that the refusal of the prosecution to prosecute the accused is a direct result of too close involvement of the Ministry of Defence in the prosecution in this case. The Ministry of Defence should therefore not be re-involved with it to decide whether or not prosecution is required (in this case, by a military court).

The applicants' argument that the Ministry of Defence has interfered too much with this case is -- according to the applicants -- based on the following facts and circumstances: 

Firstly, the Ministry of Defence manipulated the facts in its favor, and has repeatedly knowingly chosen to ignore them and tell untruths; 

Secondly, there are indications that the Ministry of Defence caused evidence to disappear; 

Thirdly, the Ministry of Defence has interfered with the criminal investigation. For the applicants, it is too opaque or in the final stages influence was used to prevent a prosecution of the accused by the Ministry of Defence 

Counsel argued that the fact that military judges are appointed "in consultation with Our Minister of Defence" by Royal Decree makes them highly dependent on the Ministry of Defence and, in view of these facts and circumstances, they cannot judge the complaint impartially. In that regard, counsel referred to case law of the European Court of Human Rights. It is for this reason that they challenged the military member of the Chamber, Commodore R.R.H. Laurens. The aforementioned drawbacks, however, apply not only against him, but against any other military member. 

The applicants claim that the law and the nature of the complaint case, in the light of the requirements of Article 6 ECHR, contemplate this complaint, in derogation from the general rule in Article 68, paragraph 3 of the Judicial Organisation Law . . .

Colombian recruiting roundups criticized

This El Nuevo Dia op-ed compellingly describes the Colombia Army's roundups of youths who cannot produce their military registration card. The practice was forbidden in 2011 by the Constitutional Court but continues to be employed. From the op-ed:

Nor can the military authorities take citizens to the barracks or military districts, hold them for long periods in order to force them to sign up, subject them to medical tests, cut their hair and if they are suitable enlist and transfer them to combat zones. We understand that military service is a duty of every male citizen who meets the requirements. However, it is the duty of the State and its institutions to defend and guarantee human rights, human dignity and the individual freedom. Therefore, in no event can a citizen be detained by the army in a raid, whether or not he has his military registration card. [Rough Google translation]

Increased attention to rule of law proposed for PLA

Rule of law will now become a major focus for the People's Liberation Army. According to this Xinhua report:

The PLA has had a tradition of enforcing strict discipline during its 87 years of history, but it is far from achieving comprehensive rule of law, said Professor Wang Fa'an of the PLA Academy of Military Sciences.

PROBLEMS

The PLA has not shaken off the shadows of the "rule of man," which was deeply rooted in China's past feudal rule for thousands of years, professor Wang said.

The Chinese army arose and evolved from isolated revolutionary bases scattered in the country's vast rural areas, and its management relied heavily on commanders' experience and will.

Late Chairman Mao Zedong was determined to standardize the army and instill rule of law after the founding of New China in 1949, but efforts were hindered by political movements, including the Cultural Revolution (1966-1976).

The PLA's modernization drive calls for the transition from the "rule of man" toward the "rule of law," but it is no easy task, Wang said.

Wang pointed out some problems, such as soldiers and officers who would rather obey commanders' orders than military laws and rules, and others who don't know how to perform duties without instructions from superiors. Servicemen's weak legal awareness also hinders rule of law in military operations, said Wang.

Tuesday's PLA Daily article by Major General Pan Liangshi, commander of the PLA Beijing Garrison Command, said existing military laws are incomplete and inconsistent, mainly covering the army's daily routine but lacking provisions for operational combat, which often causes confusion in joint exercises.

Pan suggested every aspect of the military, including training, battle and command, be done in accordance with rule of law, and commanders should have a legal mind.