Jhonny Gil released in Bolivia after nearly a year's preventive detention

Jhonny Félix Gil, one of the leaders of a group of Bolivian noncommissioned officers who demonstrated last year for greater fairness in personnel and training matters, has been ordered released after nearly a year in preventive detention. He is now subject to house arrest and other restrictions. Two other leaders are also being released. Details can be found here.

The resurrection of Napoléon's principle of equal justice

Hon. Gilles Létourneau

French Emperor Napoléon strongly believed in an equal and unified form of justice for all French citizens. He is known to have said:

       There is but one justice in France: one is a French citizen before being a soldier. If one soldier kills another in France, he has no doubt committed a military offence, but he has also committed an offence under ordinary law. All crimes must first and foremost be tried by civil tribunals each time such a tribunal is available.

Over time, however, as in many other countries, France departed from this principle and established military tribunals with a wide penal jurisdiction. This system of military justice prevailed until military tribunals were abolished in 2011. The prosecution of crimes committed by military members  must now be conducted before civilian tribunals.

Recently, allegations of serious sexual assaults (rape) against minors in Central Africa have been made against some 15 French soldiers. The alleged crimes were brought to the attention of the French military authorities by the United Nations. The military authorities launched an investigation but, according to media reports, only to determine if there was a malfunctioning of the chain of command which could lead to internal sanctions against the culprits ranging from short detention to dismissal from the Forces. Whatever military sanction is taken does not pre-empt prosecutions and trials before the civilian courts. There is no longer in France military trials of ordinary criminal law offences.

In the present instance the results of the military investigation were classified and cannot be revealed to the public unless so ordered by civilian justice. A request for disclosure is expected to be made by the civilian tribunal. When crimes are committed by members of the military or the military is the victim of crimes in France, the prosecution takes place before the ordinary criminal courts which have a branch specialized in military law.

When crimes are committed outside French territory, the trial takes place either before the correctional courts or the Assizes Court. Until January 2012 these crimes used to be tried by a military tribunal called “le Tribunal aux armées de Paris,” which was abolished. They now fall under the jurisdiction of "le Tribunal de grande instance de Paris,” which is a civilian tribunal. This court is composed of professional judges and does not sit with a jury.

The French authorities have created an investigative unit composed of military police officers whose task is to conduct the investigation of crimes committed against the French military or by members of the military. They possess the same powers as civilian police officers. Members of this investigative unit accompany the French army when it operates abroad.

Napoleon would be glad to see that his principle based on equal justice has now been reinstated after years of wandering.

UN operations compromised by sexual exploitation?

Military.com is repeating an AP report that:

French prosecutors and military authorities are investigating accusations that French soldiers in Central African Republic sexually abused children they were sent to protect.

The French probes follow an initial United Nations investigation into the allegations a year ago — all of which were kept secret until a report in the Guardian newspaper Wednesday pushed officials to publicly acknowledge them.

The article also references previous investigations into sexual misconduct during UN operations.

The U.N. high commissioner for human rights, Zeid Raad al-Hussein, was the author of a lengthy report on preventing sexual exploitation by peacekeepers that the global body commissioned a decade ago after a scandal involving U.N. troops in Congo. 

Known as the Zeid Report, it recommended among other things that allegations of abuse be followed by a professional investigation and that U.N. member states should pledge to prosecute their soldiers as if the crime had been committed in their own country.

The Stimson Center has a February 2015 report, Reducing Sexual Exploitation and Abuse in UN Peacekeeping: Ten Years After the Zeid Report.

Administrative justice for U.S. military personnel: reforms proposed for record-correction boards

Not all military justice involves criminal proceedings. Three Democratic members of the U.S. Senate (Barbara Boxer (CA), Ron Wyden (OR) and Edward J. Markey (MA)) and California Democratic Representative Jackie Speier  have proposed legislation that would, in addition to improving protection of military whistleblowers against reprisal, institute important reforms in the boards for correction of military and naval records. According to the legislators' press release about the Legal Justice for Servicemembers Act:

All too often, when a servicemember’s claim of retaliation is substantiated by an Inspector General, that individual is forced to navigate a complicated and bureaucratic records correction process at the Boards for Correction of Military or Naval Records. To ensure all applications receive fair and thorough consideration from the boards, the bill:

• Directs military correction boards to conduct evidentiary hearings on significant cases presenting factual discrepancies that cannot be resolved without witness testimony.
• Instructs boards to obtain relevant medical or personnel records if servicemembers make reasonable efforts but are still unable to obtain the records.
• Requires that, to the extent practicable, administrative judges serve as presiding officers of the boards.
• Establishes board membership as a full-time position with a 5-year term limit.

The correction boards have long been seen as needing reform. If this proposal is able to attract bipartisan support and kickstart serious discussion on Capitol Hill, that will be a very good thing.

Judicial independence in Pakistan -- a possible straw in the wind?

While attention has understandably focused on the judicial independence and separation of powers issues raised by the military courts authorized under the 21st amendment to the Constitution of Pakistan, another such issue has arisen in an unrelated local context. According to this report in Dawn, a two-judge bench of the Peshawar High Court has invalidated a regulation permitting the use of "executive magistrates" in the Provincially Administered Tribal Areas (PATA). This arrangement authorized PATA deputy and assistant commissioners to exercise judicial powers even though they are executive officials.

The executive magistracy, which was abolished in the entire country in 2001 by the then military government of Gen (r) Pervez Musharraf by amending the Code of Criminal Procedure (CrPC), was revived in Malakand Division under section 5(5) and section 7 (4) of the NAR [Nizam-i-Adl Regulation 2009], which provided judicial powers to executive officers who were not under the administrative control of the Peshawar High Court.

This ruling seems of interest as an indicator of the salience of judicial independence in Pakistani constitutional law. Of course, it is one thing for a court to invalidate a mere regulation and quite another to hold a constitutional amendment unconstitutional (as the Supreme Court would have to do to overturn the latest generation of nationwide military courts with jurisdiction over civilians), but to the extent that this ruling from Peshawar reflects the overall orientation of the Pakistani judiciary, it may be a straw in the wind.

Conscription reform and Israeli coalition-building: "battle stations"

With Israeli Prime Minister Benjamin Netanyahu's recent election victory, the task turns to structuring yet another coalition government. Bibi's Likud party has negotiated a deal with one of the religious parties that includes provisions to roll back changes relating to conscription:

One of the most significant issues is the changes to the law for haredi [ultra-Orthodox] enlistment passed last year by Knesset, which stipulated that military service become mandatory for most haredi yeshiva students by 2017. 

The coalition agreement states that the law will be amended so that the minister of defense will have the authority to establish enlistment targets from the haredi sector, and that no sanctions will be imposed on any haredi yeshiva student who does not perform military service.

Resolving the terms on which haredim will be subject to conscription has been a hardy perennial in Israeli politics, with several interventions by the Supreme Court. The latest deal is an effort to "kick the can down the road" yet again. Your Editor predicts big trouble with the Supreme Court. The leader of another party reacted strongly to the agreement:

Yesh Atid chairman Yair Lapid, who spearheaded many of the government steps for integrating haredim into the military and work force reacted angrily to the terms of the deal, and strongly condemned the Likud party for “selling out the state to haredi interests.” 

Speaking on Army Radio Wednesday morning, Lapid said that the Likud party had in effect agreed to reverse all the reforms enacted during the last government to integrate haredi men into the military and the work force and was endangering the future of the state.

For a sense of the difficulties presented by Israeli conscription law and current haredi resistance/evasion see this article from Yeshiva World.

CAAF educational program

Each year the Court of Appeals for the Armed Forces hosts a two day seminar.  It used to be called the Judicial Conference, but now it is the Continuing Legal Education & Training Program.

The program will be held 19-20 May 2015 at Georgetown University Law Center.  Here is a link to the program, and also registration.  For those who require CLE credit, the CAAF fee is cheap CLE.  Virginians come on out--I see a full two hours of ethics credit.

Some may well be aware of the history of "service connection" as it existed in the U.S. The idea being that for there to be military jurisdiction for court-martial there had to be a service-connection for the alleged misconduct.  First there was none, then there was a requirement based on the O'Callahan-Relford duo, and now there is none since Solorio.  With that in mind, the first item on at the CLE&TP is this:

Revival of a Service Connection Test in Canadian Military Legal Practice? Colonel Robin (Rob) F. Holman, Canadian Armed Forces, Deputy Judge Advocate General, Military Justice.

Arnhem court rules out criminal prosecution of Dutchbat commander and staff officers

Col Thom Karremans, RNA (Ret)

Under Article 12 of the Netherlands Code of Criminal Procedure, the Arnhem Court of Appeal has authority to overturn decisions by the Public Prosecution Service not to prosecute charges. This morning the court ruled that criminal proceedings should not be brought against retired Col. Thom Karremans and two other Dutchbat officers as a result of the Bosnian Serb massacre of Muslim civilians in Srbrenica. The decision has no effect on the earlier determination that the Dutch state is liable for the deaths. Details appear here. The plaintiffs could now file a complaint with the European Court of Human Rights.

The judgment is available in Dutch here. Readers are respectfully invited to comment on this high-profile case.

Supreme Court of Pakistan resumes hearing on constitutional amendments

The Supreme Court of Pakistan heard argument on Monday on the various constitutional petitions challenging the validity of the 18th and 21st amendments to the Constitution. For snippets of the arguments and comments from the bench, click here. The hearing resumed today but there are no news accounts yet.

Worthwhile articles in next issue of Military Law and Law of War Review

Volume 53/1 (2014) of The Military Law and the Law of War Review will soon be available. It includes two articles of considerable interest from the standpoint of military justice reform. One, by Nelson Atanga Ayamdoo of the Directorate of Legal Services, Ghana Armed Forces, is "Court Martial Quagmires in Ghana: Court Martial Appeals post Republic v. Lieutenant Oduro." The other is "The State of Military Justice Reform in Turkey: 2014," by Leslie Esbrook, Yale Law School '15. The Review is published by the International Society for Military Law and the Law of War.

Colombian Constitutional Court to have jurisdiction over jurisdictional disputes

The Colombian Senate has voted to require that questions of whether offenses by military personnel should be tried in military or civilian courts be decided by the Constitutional Court rather than by the Supreme Court. A suggestion to create an entirely new court to resolve jurisdictional disputes between the two systems of justice was rejected. Details can be found here.

Taiwan parliament amends disciplinary punishments

As reported here, the Legislative Yuan has approved on third reading an important amendment to Taiwan's military discipline law. The effect is to enhance the human rights of military personnel:

The amended Act of Punishment of the Armed Forces scrapped the punishment of "reforming training" or reeducation and "confinement," and reduced the maximum number of days that officers and soldiers can receive the punishment of penitence from 30 days to 15 days. 

It also added "reduction in rank" and "demotion" to the kinds of punishments that can be imposed on ranking officers; "dismissal," "reduction in rank" and "disciplinary measures" to the punishments that can be slapped on non-commissioned officers; and "salary deduction" to those that can be carried out on soldiers.

The newly added "reduction in rank" punishment will deter crime and dereliction of duty because if a military officer's rank is reduced, so will his or her pension, according to the Ministry of National Defense.

Revisions to the Act were drafted after the death of 24-year-old Army corporal Hung Chung-chiu (洪仲丘) on July 4, 2013. Hung died of heatstroke after being forced to do strenuous exercise in a confinement facility he should not have been in in the first place.

The article does not mention it, but Taiwan enacted sweeping military justice reform legislation in 2013 in exceptional haste due to widespread public outrage over Hung Chung-chiu's death. Jurisdiction over military crimes was transferred to the civilian courts.

Death of Rear Admiral John S. Jenkins

Rear Admiral
John S. Jenkins,
JAGC, USN (Ret)

Rear Admiral John S. Jenkins, JAGC, USN (Ret) died on April 23. Admiral Jenkins had served as Judge Advocate General of the Navy, a dean at The George Washington University Law School, and for many years the Judge Advocates Association's representative to the ABA House for Delegates. He was one of the founders of the National Institute of Military Justice in 1991. One of NIMJ's annual writing awards is dedicated to Admiral Jenkins.

Reforms proposed in DRC

A wide-ranging set of legislative proposals is being discussed in the Democratic Republic of Congo. Among them:

Guarantee the exclusive jurisdiction of civilian courts over war crimes, crimes against humanity and genocide:

To date in Congo, only military courts have exercised jurisdiction over war crimes and crimes against humanity. As explained above, there have been concerns about trials for grave international crimes before military courts in Congo.

Recognizing the difficulties military justice systems have prosecuting offenses against civilians by military personnel, international and regional standards recommend that military courts should not be involved in prosecuting serious human rights violations, and should focus purely on military offenses.[3] This approach is recommended for a number of reasons, including that serious human rights violations do not fall within the scope of military duties, that access to military justice may be difficult or traumatizing for victims of serious crimes committed by soldiers, and that military justice systems may lack impartiality when prosecuting members of their own ranks.

_____

[3] UN Human Rights Commission, Updated set of principles for the promotion and protection of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, Resolution 2005/81, April 21, 2005, principle 29; Draft Principles Governing the Administration of Justice through Military Tribunals, U.N. Doc. E/CN.4/2006/58, January 13, 2006, draft principle 9; UNGA Declaration on the Protection of All Persons from Enforced Disappearance, adopted December 18, 1992, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), Art. 16, which states that persons presumed responsible for such crimes "shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts." The same principle exists in the 1995 Inter-American Convention on Forced Disappearance of Persons, article IX; African Commission on Human and People's Rights 2008 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle L(a).

Lawyers' Rights Watch Canada study on trial of civilians by military tribunals

Lawyers' Rights Watch Canada, an NGO, has issued a useful working paper prepared by lawyers Erika Chan, Gail Davidson and Catherine Morris, titled "Right to Trial by Civilian Courts: International Law on the use of military tribunals to determine the rights of civilians," dated January 15, 2015. It can be downloaded here. The paper surveys human rights and national jurisprudence from around the world, and urges that there is "a pressing need for continued scrutiny of the use of military tribunals to determine the rights of civilians."

Military victims of crime and their families are excluded from the protection of the Canadian Victims Bill of Rights

Bill - 32 enacts the Canadian Victims Bill of Rights which specifies that victims of crimes have the following rights: (a) the right to information about the criminal justice system, the programs and services that are available to victims of crime and the complaints procedures that are available to them when their rights have been infringed or denied; (b) the right to information about the status of the police investigation and the criminal proceedings; (c) the right to have their security and privacy considered; and (d) the right to protection from intimidation and retaliation; etc.

In an address to the House of Commons on February 20, 2015 the Minister of Justice, the Hon. Peter Mackay, noted that this Bill had been a top priority of the government, putting victims at the very epicentre of the justice system. The Bill received Royal Assent on April 3, 2015.

[An Act to enact the Canadian Victims Bill of Rights, S.C. Ch. 13]

Inexplicably, this Bill applies only to victims of an offence and their families in their interactions with the civil criminal justice system. Section 18(c) of the Bill, which reads as follows, excludes members of the military who are victims of an offence that is investigated or proceeded with under the National Defence Act.

18 (3) This Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.

Canada appoints a new Chief of the Defence Staff - General John Vance

Prime Minister Stephen Harper has announced (Press Release) the appointment of Lieutenant-General Jonathan Vance as the next Chief of the Defence Staff.  Gen. Vance is currently the Commander of the Canadian Joint Operations Command. He has served previously as Deputy Commander, Allied Joint Force Command, in Naples, Italy, and as Chief of Staff of the Canadian Army.  He also twice led the Canadian Task Force in Kandahar, Afghanistan. 

See new report by the Canadian Broadcasting Corporation.

Split decision by Mexican Supreme Court

The Inter-American Court of Human Rights (IACHR) has ruled against Mexico for violating the human rights of two indigenous women who were raped by Mexican soldiers in 2002. The decision analyzed the constitutionality of article 57 of Mexico’s Military Code. Now, however, the Mexican Supreme Court, in plenary session, has decided not to evaluate either the constitutionality of the provision or its compliance with the American Convention on Human Rights.

As amended last year, article 57 provides that military courts have jurisdiction over ordinary crimes, but that cases involving the violation of the rights of a civilian by the military must be brought in the civilian courts. Given the provision's new wording, its constitutionality and compliance with decisions of the IACHR is in dispute.

The majority decided that the Supreme Court should only analyze the obligations of the Judicial Power of the Federation in order to comply with the decision of the IACHR, but not to go beyond its powers. However, the Court has resolved to attract legal actions filed in the military courts against the constitutionality of the country’s military justice system.

The dissenting judges argued that the full court, in the exercise of its constitutional powers, should have decided whether last year's revision of article 57 complies with the IACHR's decision.

You can read more on this here.

Three more PLA generals slated for prosecution?

General Zhan Guoqiang

A terse statement on the Chinese Ministry of Defense (MOD) website posted on April 26 revealed that Generals Zhan Guoqiang, Zhan Jun, and Dong Mingxiang are under investigation by the PLA Military Procuratorate (the military prosecutor's office). It can be expected that the military procuratorate will initiate prosecution of these cases later this year. The website statement is a continuation of the PLA's policy of greater transparency, discussed in this blogpost.
Zhan Guoqiang and Dong Mingxiang were both directors of logistics departments in their military districts.

General Zhan Jun

General Dong Mingxiang

A policy document issued by the Central Military Commission at the end of last year, Detailed Regulations on Work to Prevent Duty Crimes, highlighted logistics as one of the problem areas for corruption in the PLA.

Although not stated, the PLA anti-corruption drive cases places enormous pressure on the military procuratorate and courts to prosecute and try these cases. An earlier blogpost highlighted the promotion of existing senior prosecutors and judges. It is likely that additional prosecutors and judges have been recruited.

Comment: We look forward to reports by defense lawyers for these generals, as well as greater transparency in their trials.

Nicaraguan Army doctor freed from prison

A Nicaraguan Army doctor who was sentenced to three and a half months' confinement for speaking out against repression of peasants objecting to the appropriation of their land under the Canal Law has been freed from military prison (one day early). Click here and here for more about the case of 1st Lieut. Yader Montiel. He has been forbidden to speak to the media.

The Mombasa collateral review hearing continues

Proceedings continued on Friday in Mombasa High Court on collateral review of the three Kenya Navy courts-martial that handed down a slew of life sentences. Among the arguments: the court-martial was not independent, deliberations took only 30 minutes and the members gave no explanation of their verdict, the nation was not at war, the accused were guilty at most of absenteeism when they took security jobs outside the country, one of the the members was absent for the sentencing phase.

By the numbers

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Alberta court allows bail for Omar Khadr

A judge of the Court of Queen's Bench of Alberta has approved the release of Omar Khadr on bail, although the precise conditions of release have not yet been set. A copy of the judgment in Khadr v. Bowden Institution 2015 ABQB 261 can be found here. According to this news account, the government will appeal. Khadr was convicted by a U.S military commission on charges of having killed a U.S. soldier in Afghanistan in 2002. His case remains under review by the U.S. Court of Military Commission Review. In the mean time he has been transferred to Canada for incarceration.

Look for changes in the Kentucky Code of Military Justice

Even though Kentucky only recently updated its state code of military justice, which applies to National Guard and Air National Guard personnel when not in federal service, the state is considering further changes, including with respect to sexual assaults and the statute of limitations. Details can be found here.

Military justice on hold in South Africa

Military justice has come to a halt because the necessary judges have not been appointed. Here's the story, according to Defence Web:

The application of justice in the SA National Defence Force (SANDF) is on hold at present while the assignment of senior military judges is “being considered”. 

Military trade union Sandu (SA National Defence Union) earlier this week indicated its concern over what national secretary Pikkie Greeff called “the halting of military courts”. 

The union has on numerous instances taken the SANDF to court over labour related matters and has a high winning rate when it comes to judgements in favour of its members. 

“Sandu is gravely concerned that the entire Military Court system has been brought to a grinding halt due to the fact that the required letters of appointment for military judges have not yet been signed by the Department of Defence. 

“The effect is no trial can commence or continue until such time as the appointments have been finalised.

“It is astounding that the entire military justice system can be placed in jeopardy as a result of what appears to be poor or lax administration by the SANDF, who ironically are always quick to point out it needs to run a disciplined defence force,” Greeff said. 

Responding, Brigadier General Xolani Mabanga, the force’s director: corporate communication, said: “The process of assigning senior military judges is currently under consideration”. 

He did not indicate by when the process would be completed or when military courts would again start functioning. 

Greeff appealed to the Department of Defence to finalise the appointments as a matter of urgency. 

“Not only is the administration of military justice and discipline negatively affected, but the constitutional right to a speedy trial is also undermined,” he said.

Meanwhile, Parliament is considering a military discipline bill that would modify the country's military justice system, including creating a U.S.-style Judge Advocate General, to take the place of the current Adjutant General with respect to military justice matters. Details here. 

Guilty verdict in Irish officer's court-martial

Cmdt Nile Donohoe has been convicted of assaulting and insulting a superior officer in the Irish Defence Forces, but acquitted of conduct to the prejudice of good order and discipline. The Irish Times reported:

He had originally been facing five charges when the trial began last week.

However, one was thrown out following a legal submission from defence counsel Matt Shaw, and Cmdt Donohoe was then acquitted of making a false allegation against a fellow officer knowing that allegation to be false under the direction of military judge Col Michael Campion.

The newspaper also reported:

The prosecution added that witnesses called by the defence -- namely former sergeant Davy Byrne and Airman Willie Byrne -- gave “rehearsed” evidence that was both “incredible and barely credible”. 

“Ex-sergeant Byrne didn’t give evidence, he gave a performance. It poured out of him like a Shakespearean sonnet, but poorly,” [prosecutor Lt. Col. Jerry Lane] said.

The court-martial's seven-officer board will proceed to the sentencing phase, with a presentencing hearing set for May 19.

Details and background can be found in this article from the Independent.

In 2010, Cmdt Donohoe became the first officer to be dismissed from the Defence Forces in over 20 years after he was found guilty of using threatening or insulting language to a superior officer by a court martial. He allegedly called him 'a little prick.'

But, Cmdt Donohoe’s dismissal was put on hold pending the outcome of the appeal he made to the Court-Martial Appeal Court, which he successfully won in 2012.

Cmdt Donohue also attempted to derail the latest proceedings through a last-minute application to the High Court, but that effort failed.

Pakistani Supreme Court adjourns hearing on military courts until April 27

The Supreme Court of Pakistan has adjourned the hearing on the military courts cases until April 27, according to this account:

Hearing against the 18th and 21st constitutional amendments and the establishment of military courts was adjourned without proceedings on Wednesday due a judge’s absence. 

Heading the 16-member bench, Chief Justice of Pakistan (CJP) Nasirul Mulk said that Justice Dost Muhammad Khan, who is included in full court, was not able to conduct the hearing due to his uncle’s demise. 

Counsel Akram Sheikh said the petitions regarding the 18th Amendment have become “ineffective” and should be dismissed. 

Supported by Justice Anwar Zaheer Jamali’s comment, the CJP said the court would not declare the matter ineffective by itself but the counsels could withdraw if they wanted. 

Those who want to withdraw their request regarding 18th Amendment should inform the court on next hearing, he added. 

The court adjourned the hearing till April 27 and directed counsels to file submissions on amendments till Saturday.

Mombasa High Court hears collateral attack on Kenya Navy closed court-martial

The High Court in Mombasa is hearing a collateral attack on the court-martial of 16 former members of the Kenya Navy. The accusers were convicted after a trial that was closed to the public and after only 30 minutes' deliberation. Details can be found here. From the news account:

"The office of the Director of Public Prosecutions, led by its Coast head Alexander Muteti, however, said the soldiers knew the consequences of deserting the army and asked the court to show them no mercy."

UN independent experts welcome Pakistani stay of executions

The Office of the High Commissioner for Human Rights has issued the following press release concerning the Supreme Court of Pakistan's stay of executions ordered by the country's new military courts:

GENEVA (21 April 2015) – A group of United Nations independent experts* welcomed today the recent decision by the Supreme Court of Pakistan to suspend death sentences imposed by military courts. 

“We had expressed our concerns at the decision of Pakistan to rescind the unofficial six-year moratorium on death penalty for non-military personnel in terrorism-related cases,” the independent experts noted. 

“Terrorism attacks should not prevent States from complying with the stringent requirements of international law for the imposition of the death penalty,” they reiterated.  

International law requires that the death penalty may be imposed only in the context of a stringent functioning of the law and order system, so as to ensure the highest respect of due process and fair trial guarantees for the defendants. “Only full respect of these guarantees distinguishes capital punishment as possibly permitted under international law from an arbitrary execution,” the experts stressed. 

“The administration of justice through military tribunals raises serious questions, particularly in terms of access to justice, independence and impartiality of the court, and respect for the fair trial rights of the accused,” noted the UN independent experts. 

“Using military tribunals to try civilians in the name of national security, a state of emergency or counter-terrorism, runs against all relevant international and regional human rights standards and established case law.” 

“Military tribunals should have jurisdiction only over military personnel who commit military offences or breaches of military discipline, and then only when those offences or breaches do not amount to serious human rights violations, and they should never have the power to impose the death penalty,” the experts further noted. 

“We have repeatedly called on all States to assess whether the use of the death penalty is compatible with the right to life, as well as the inherent dignity of the human person, causes severe mental and physical pain or suffering and constitutes a violation, inter alia, of the absolute prohibition of torture,” the experts stated. 

“We hope that the decision of the Supreme Court will provide an opportunity for all relevant actors in Pakistan to pursue a critically important dialogue aiming to address the questions relating to the legality of military tribunals, and the use of the death penalty, in line with Pakistan’s international human rights obligations.” 

To this end, the experts stressed that ensuring a safe environment for judges, prosecutors, lawyers and other members of the justice system is of fundamental importance. 

* The experts: Ben Emmerson, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Juan Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions; Mads Andenas, Chair-Rapporteur of the Working Group on arbitrary detention; Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers; and Ariel Dulitzky, Chair of the Working Group on enforced or involuntary disappearance.

Pakistani government's reasons for opposing stay of execution

While the full text is not available, this article in the Express Tribune provides specifics about the arguments advanced in the Pakistani government's 6-page opposition to the stay of execution ordered by the Supreme Court last week in the 21st Amendment cases. The reasons boil down to a few (the numbered argument headings in bold are Global Military Justice Reform's):

1. Those who are under sentence of death have disqualified themselves from the fundamental protections of Pakistani law.

The government also urged the top court to determine if a person who has waged a war against Pakistan and is not loyal to the state could still be entitled to protection of his fundamental rights under the constitution. 

“The convicts were apprehended during operations in Fata for waging a war against the state. They were in lawful custody under the law,” reads the government’s response. 

The reply said the six men had slaughtered army and Frontier Corps personnel, trained would-be suicide bombers, attacked civilians and important installations, causing many deaths and injuries. 

“They were also involved in kidnappings for ransom, possessing explosives and collecting funds for terrorist organisations.” 

2. They have remedies to exhaust, so the case is not ripe.*

The government said these terrorists convicted by the Field General Court Martial under the Pakistan Army Act 1952 had an efficacious and adequate remedy under the act, adding that under the act there were a number of steps – including sending a mercy petition to the army chief as envisaged under Section 131(1) of the act, an appeal under Section 133(b) and then sending a mercy petition to the president – that could be taken before the punishment was executed. “This process takes about six months.” 

The document said the six men were convicted only few days ago; therefore, the top court’s stay order was rather premature, particularly when other remedies were yet to be exhausted.

3. The trials were conducted in accordance with legal procedure.

“The procedure provided under the law was duly followed by the military court during the trial of the six militants.” 

4. The Court has not yet ruled on its own jurisdiction, and the Supreme Court Bar Association lacks standing. 

Another objection raised by the federal government was that the Supreme Court’s jurisdiction in the matter was yet to be determined; therefore, the apex court’s order would amount to assumption of jurisdiction. “Moreover, the SCBA is not the aggrieved party and there is a presumption of abstract grounds.” 

5. The prisoners were allowed to mount a defense [see also ¶ 3 above].

The government said the convicts were afforded full opportunity to defend themselves during their trials, as provided under the act. 

6. Military trials are fair. 

The petitioner has failed to show how the provisions of Article 10-A were violated in the military courts, it added. “The apex court has already declared trials by military courts as ‘fair trials’.”

* Note the absence of any reference to judicial review. The remedies noted are post-trial command review and clemency from the Chief of Army Staff and the President.

The Supreme Court resumes its consideration of the 18th and 21st Amendment constitutional petitions today.

Concurrent representation?

February 6, 2015.  The Chief Executive Officer (CEO) of the Canadian Bar Association (CBA) has accepted an appointment as Honorary Colonel of the Canadian Forces Legal Branch.  As such he now has a privileged right of access to the JAG - and vice versa - as well as other senior officers of all services. It will be interesting to watch the CBA's advocacy efforts before the Canadian Parliament particularly on the issue of military justice reforms which are of importance to the legal profession as a whole. 

Speedy trial in Ireland -- not!

One of the claims often heard in favor of trials by court-martial is that military justice moves more swiftly than civilian justice. Tell it to the Irish, where an Air Corps officer is currently on trial with respect to events said to have occurred some eight years ago. Maybe the country's civilian courts take their time, but it is hard to imagine a case moving more slowly than this one. Click here for a report on yesterday's testimony in the case.

How's that again?

The government has filed an objection to the stay of execution issued by the Supreme Court of Pakistan with respect to death sentences already handed down or to be handed down by the country's new military courts. According to this report in The Express Tribune,

The government filed a petition on Tuesday, arguing that there is no reason for the apex court to stay executions of the convicts even before assessing the authority of military courts.

So let's try to wrap our heads around this, shall we? Since the Court hasn't ruled on the merits of the constitutional petition attacks on the new courts, the argument in favor of vacating the stay goes, no stay is warranted -- and the executions should proceed if the government in its sole discretion wishes to do so. And then what? "Tough luck" for those hanged as a result if, in the end, the Court sustains the challenges to the 21st Amendment and implementing legislation?

It is very frustrating to be a spectator during this controversy without access to the underlying legal documents. Perhaps some Global Military Justice Reform reader in Pakistan who has access to those documents can submit a comment and enlighten the rest of us on precisely what the government said in seeking to vacate the stay -- or, for that matter, what the government's specific response is to the challenges to the new military courts. Indeed, how about the text of the petitioners' challenges? (Real names only, please.)

Polish misconduct downrange?

Jurist has a report:  In a recent ruling, a Warsaw military court acquitted four Polish soldiers of war crimes over the killing of six civilians in Afghanistan in 2007. The soldiers were nonetheless found guilty of the lesser offense of failing to carry out a military order. This group of soldiers was part of 28,000 Polish military personnel who took part in the international mission in Afghanistan between 2002 and 2014. This article will explore the soldiers' original charges of war crimes and will analyze whether their alleged actions constituted war crimes under international humanitarian law. It should be noted that the soldiers were originally charged with violations of various provisions of the Polish Criminal Code, including crimes against peace, crimes against humanity and war crimes. Because these provisions of Polish law reference international law, the below analysis of the soldiers' liability under international humanitarian law is both relevant and appropriate.

Military police should be returned to their classical roles and functions

In an Opinion Piece published in the Halifax Chronicle Herald [OPINION] the author warns that the ‘‘dust may be settling too quickly” on the devastating report published late last month by the Military Police Complaints Commission (MPCC), which concluded that the National Investigative Service (NIS), an arm of the Canadian Forces Military Police, have been shown to be neither competent nor experienced enough to conduct critical criminal investigations.

The Chair of the MPCC, Glenn Standard, who was previously a retired Chief of Police of Windsor -- a large Canadian city -- recommended that the NIS be placed on some form of on-the-job (OJT) training until they bring their competence and experience levels up to established professional police standards. Such OJT would require any such investigation to be lead by an experienced and skilled police investigator drawn from a federal, provincial or municipal civilian police force.

Speaking on behalf of the Department of National Defence and the Canadian Forces, inexplicably, the Provost Marshal (Col Robert Delaney) rejected this sensible and reasonable recommendation out of hand.

In his Opinion Piece the author proposes that “rather than fix a badly broken military police organization, Defence Minister Jason Kenney should note that the wartime employment of the Canadian military police, called the Provost Corps, was restricted to the custody of prisoners of war and vehicle (traffic) management on roadways within and leading to battle areas.” The author opines that real police work should now be accomplished by the Royal Canadian Mounted Police (RCMP) [See webpage of the RCMP] and the military police be redesignated as a Reserve Force organization, to be activated only for overseas deployments and restricted to the custody of POWs, traffic control and handling of refugees and stragglers on the battlefield.

A most interesting proposition.

How the Nigerian Army defeated Boko Haram

The Chief of Staff of the Nigerian Army has explained here how the Army defeated Boko Haram:

Many Nigerians have been wandering what magic wand the top brass of the military waved to turn the table against the rebellious Islamic sect. 

Quite a handful of permutations sprang up. One was that the assistance of the joint military forces of neighbouring Niger, Chad and Cameroon pulled the strings which gave an edge to the Nigerian troops and ultimately decimated the insurgents. 

Others averred that the purchase of new and sophisticated equipment was the joker which brought victory to the troops and returned palpable peace to the country. 

However, the country’s Chief of Army Staff, Gen Kenneth Minimah, in a chat with some journalists, recently revealed that contrary to popular opinions, the military court martial which was instituted against errant soldiers, both of the rank and file sent to the battleground was the actual magic wand which destroyed the myth of invincibility woven around the terrorists. 

According to Minimah, if his predecessors had set up the military court-martial at the inception of the war with the terrorists, the battle would not have lasted this long. 

“I’m sure that before the deferment or postponement, the atmosphere in the north east was still charged with the activities and violence of the Boko Haram sect, they still had a strong hold over a handful of local governments across the three states, and also in Gombe State. They had also threatened that they would disrupt elections and the elections would not hold.” 

“Anyone could have as well believed that it was not going to be possible. Alas today, the reality on ground has vindicated the armed forces of Nigeria, because so much has been done that as at today, we are already moving into Sambisa forest and hopefully, very soon, the military action will be rested in the north east.” 

“It is common knowledge that the Nigerian army has been demanding for equipment from the government, it is common knowledge too that part of the teething problems of the war against the insurgency has been requisite modern equipment for the Nigerian army and the Nigerian armed forces.” 

“It is common knowledge too, that the equipment the Nigerian army had were old, aging, and obsolete and that we were doing local repairs to maintain them. It is also common knowledge that the Nigerian troops were running from battle, and that the government was doing everything it could to buy equipment for the army. 

“Eventually, the equipment came in, and with my personal effort of ensuring that the affected officers and soldiers were court-martialed, dismissed for running from the adversaries, for abandoning the equipment we had and so forth, the psyche of the Nigerian soldiers changed. The equipment that arrived changed the battle dynamics, changed the battle platform, everything was reversed, the terrorists started running, and we changed the battle, that is what happened.” [Emphasis added.]

Aside from the whiff of unlawful command influence in this account, has Boko Haram been defeated? The New York Times recently noted that the abducted schoolgirls had still not been rescued.

Mission creep favored for Pakistan's military courts

Pakistan's new military courts were authorized in the wake of the horrific mass murder at the Peshawar Army Public School late last year. The goal was to get at terrorism, which the civilians courts were said to have failed at addressing. Now calls have emerged to expand the new courts' jurisdiction. The Express Tribune last week reported this gem of mission creep:

The cases pertaining to the Pakistan Industrial Development Corporation (PIDC) employees multi-purpose cooperative housing society should be transferred to military courts and the authorities of the military courts should be extended, said a press release issued by the PIDC on Wednesday. Cases of corruption, fabrication and land grabbing should be transferred to the military courts and honest judges be appointed. Officials involved in the verification of fake lease should also be removed, said the press release. It further demanded that strict action should be taken against the administrator who opened a new account in the Avari Towers branch of National Bank and withdrew Rs10 million from the PIDC employees society fund.

Corruption, fabrication and land grabbing as terrorism?

History of military courts in Pakistan

The military courts authorized by the 21st Amendment to the Constitution of Pakistan are not the first time the country has authorized military courts with power to try civilians. This article in Dawn provides some historical background, including case citations:

The issue of military courts had surfaced even during the government of late Zulfikar Ali Bhutto when he had set up summary military courts after the general elections of 1977. During that time law and order had emerged as a result of agitation started by then opposition parties against alleged rigging in the polls. When the governments in Sindh and Punjab failed to control the situation those military courts were set up under Article 245 of the Constitution whereas certain amendments were also made in the Army Act 1952. 

That action of the government was challenged before the Lahore and Sindh high courts. The judgments of the two high courts in those petitions are reported as Darwesh M. Arbey vs Federation of Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed Khan vs Province of Sindh (PLD 1977 Karachi 604), respectively. In these judgments the courts clearly pronounced that Article 245 of the Constitution could not be invoked by a political government to rule through the armed forces. 

In 1998 the then Nawaz Sharif’s government had invoked Article 245 of the Constitution for calling armed forces in aid of civil power. Similarly an ordinance was promulgated for establishing military courts. 

Through the famous judgment in Sheikh Liaqat Ali Case (PLD 1999 Supreme Court 504) a full bench of the Supreme Court, headed by then chief justice Ajmal Mian, had declared as unconstitutional and illegal the setting up of military courts. The judgment clearly demonstrated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution. However, by the time the judgment was delivered two convicts, who were awarded death sentences by military courts, had already been executed.

The Supreme Court will resume hearings on the pending constitutional petitions on Wednesday, April 22. 

More insightful discussion of the larger issues surrounding Pakistan's new military courts

Lahore lawyer Saad Rasool has written this powerful op-ed for The Nation. In part:

The tussle highlights an inherent disconnect in our societal ethos, and brings to surface the ideological issues that are brewing at the core of our national identity. 

The first set of issues, voiced by those who value the ‘results’ more than the ‘process’, follow a familiar trajectory: Is ‘law’ more valuable than ‘life’? Should those who murder our children be afforded the respect and compassion of our laws? Does the constitutional empire of fundamental rights extend even to those who seek to destroy the Constitution, and all that it stands for? Does the State have a responsibility to protect those who seek to destroy it? Should law come to the rescue of those who are lawless? What good would it be to uphold a law that protects those who have a gun to our head? Why wait for ‘conclusive’ evidence, when it comes in the form of a suicide attack? What good is a smoking gun, if it comes in the form of a mushroom cloud? 

The counter narrative, emanating from (leftist) human rights activists, argues an equally passionate trajectory: The law is not an instrument of convenience, to be applied at our leisure. Its letter and spirit becomes even more imperative in times of exigencies. What good would the law be, if its command dwindles in the face of adversity? How better can we test the tenacity of our constitutional protections than by applying them to the very people who offend its fabric? What would be the virtue of ‘equality’ and the ‘due process of law’, if these are only applied, timidly, among a select few? In fact, is it not our brutish desire and animalistic instinct of revenge that the law is designed to protect against? And if so, should the command of law, and its due process not be even more jealously applied when dealing with the alleged terrorists? 

The answers to these questions cannot simply be extrapolated from legal doctrines. Nor can they be conjured from heated moments of passion. These issues rest at the core of who we are as a people, and who we wish to become as a nation. Yet, sadly, there is no national consensus concerning this ideology.

It seems clear that the country is quite consciously navigating a "constitutional moment."

The stay of executions in Pakistan's new military courts

From Dawn's editorial about the Supreme Court of Pakistan's order last week staying all 21st Amendment military court death sentences:

To critics of the Supreme Court’s temporary decision and proponents of the new, post-December regime of military courts, there is also a straightforward response. Yes, there is a desperate need to draw up a coherent and cohesive policy to fight militancy here, but military courts can be no part of such a strategy, in principle or in practice. Consider what is now known about the six men who were, before the Supreme Court’s intervention, sentenced to be executed in the name of the power that the people have invested in the state. 

They were effectively sentenced to death (the appeals process under the new legislation will surely be even more abbreviated and limited than the trial itself) because the military has accused them of being terrorists. If the military is convinced of the militancy connections of these six men, and knows the specific crimes they have committed, why is it so difficult for the same evidence to be produced in a reasonable manner before reasonable individuals? The notion that the judiciary is an incurable ally of militancy is preposterous. By the same token that the military has convinced itself of the guilt of certain individuals, why can it not convince others of the same? The Supreme Court has done the right thing.

The general stay of executions is temporary, and speaking of temporary, does anyone really believe the 21st Amendment military courts will in fact sunset in two years, as the recent Pakistani legislation currently provides? 

Thanks to contributors

Charles Bridge, Prague, April 2015

The Editor wishes to thank the various contributors who helped keep Global Military Justice Reform lively and current during his absence in historic Prague, Czech Republic, for the XXth Congress of the International Society for Military Law and the Law of War. Each of you gets a gold star on your homework.

Important background on the military courts constitutional crisis in Pakistan

Asma Jahangir

The Express Tribune has run this powerful, unanswerable op-ed by Lahore attorney Saroop Ijaz about the complicated and toxic political and legal context from which Pakistan's 21st Amendment military courts emerged. The whole essay is highly recommended; this brief extract will give you a foretaste:

The challenge to the fast-track, hashtag military justice-style executions had to come from Ms Asma Jahangir and in this case also, the Supreme Court. The Pakistani ‘patriots’ are having a field day attacking Ms Jahangir for ‘defending terrorists’ and other assorted nonsense. One does not feel worthy to speak for Asma Jahangir, she speaks for herself and does so compellingly and eloquently. In any case, her credentials both domestically and internationally do not require a certificate from these loudmouths. When Ms Jahangir for many years asked for action against militants by the Pakistani state in a rights-respecting manner, the same cadre cried about these being ‘our estranged brothers’ and that people like Ms Jahangir wanted ‘Pakistanis to fight Pakistanis’, etc. The ‘bleeding green patriots’ have the benefit of not being shackled by any principles; a luxury that Ms Asma Jahangir and Mr I A Rehman don’t have. Mian [Nawaz Sharif] Sahib may (or certainly should) remember October 1999 when it seemed that all of Pakistan was falling over each other to welcome the Commando and it was only Ms Jahangir and Rehman sb, who despite their vocal criticism of Mian Sahib’s bid to become Amir-ul-Momineen, recognised and called an unconstitutional coup as what it was and opposed the Commando throughout his reign. Yet, when it seemed that General [Pervez] Musharraf might be denied a fair trial, it was Ms Jahangir who spoke out for his right.

More movement on making justice accessible for the military community in India

One of the largest military veterans’ organisations has written in detail to the Prime Minister of India urging him to change the law as necessitated due to the recent Supreme Court decision which makes justice inaccessible and unaffordable for military personnel, veterans and their families with respect to their service-related issues.

A report and the contents of the communication can be accessed here.

Multi-jurisdictional issue

Fox News reports:  Canada's military has charged four members of the British Navy with sexual assault.

The Canadian Forces National Investigation Service said Friday the men were charged for their role in a "group sexual assault" in barracks in Shearwater, Nova Scotia on Thursday.

Other reports here:

http://news.yahoo.com/canada-charges-four-british-navy-sailors-over-gang-213007549.html