AFSPA withdrawn from Indian State of Tripura

One of the most debated issues in the political sphere in India has been the applicability and invocation of the Armed Forces (Special Powers) Act, colloquially known as AFSPA, in the insurgency-affected States of the country.

The Act, which has been flagged by civil society as being draconian in the application of some of its provisions in the modern times, has again been in the center of public gaze since the new government took over in May 2014. Some facets of the Act have been discussed earlier on this blog at many instances, especially here and here. 

In a progressive move, the Act has been revoked from the Northeastern State of Tripura after 18 years in view of the reduction of terrorist activities in the State.

Over the last 18 years, the applicability of the Act had been reviewed and reduced from time to time from specific areas in Tripura. Militancy was at its peak in the late 1990s when the Act was first imposed. Tripura also shares a long border with Bangladesh which also had been in the focus of activities related to militancy.

The withdrawal of the Act has been welcomed by all stakeholders.

Though the Act stands withdrawn from Tripura, experts feel that the Government is in no hurry to withdraw it from the State of Jammu & Kashmir.

A recent report on Firstpost related to the Act’s tryst with Kashmir, more in view of the recent development in Tripura, can be accessed here.

More leaks in connection with inquiry into peacekeeper discipline

Today's New York Times has this report on the latest developments in the controversy over allegations of sexual crimes involving children by French peacekeepers in Africa. The latest developments include a leak of internal documents from the UN Office of the High Commissioner for Human Rights and a claim that the OHCHR employee who made public unredacted documents regarding the peacekeeper misconduct is being investigation as an act of reprisal. From The Times's story:

“The documents indicate a total failure of the U.N. to act on claims of sexual abuse,” Paula Donovan, co-director of AIDS-Free World, based in New York, said in a statement published with links to the documents. 

Ms. Donovan asserted that more than 30 officials had been aware of the allegations for months and took no action. When Mr. [Anders] Kompass, a Swede, resisted pressure to resign by threatening to go public, according to her narrative, they conspired to silence him and mask their earlier inaction by starting the internal investigation. 

AIDS-Free World has not revealed the source of the leaked documents. Efforts to reach Mr. Kompass were not immediately successful. 

Documents leaked so far include a statement by Mr. Kompass’s immediate supervisor, Flavia Pansieri, the deputy high commissioner for human rights, acknowledging that she failed to follow up on the report when he brought it to her attention. They shed no light, however, on why Mr. Kompass did not pursue the matter with Navi Pillay, the high commissioner at the time and a strong advocate for action to curb sexual abuse.

Sierra Leone mutiny court-martial continues

Judge Advocate Otto During

The mutiny case in Freetown continues, as reported here. At its latest session, Judge Advocate Otto During permitted the prosecution to amend one of the charges (over objection by defense counsel) following the close of the evidence, and to submit a 25-page closing argument that was apparently not read aloud -- thus thwarting media coverage of precisely what the government was contending. The case was then adjourned until June 19, at which time the defense will make its closing submission. Here is Mariam Sulaiman-Bah's detailed report from the courtroom:

Lead prosecutor, Major Vincent Sowa has finally submitted his closing address on May 27 before judge Advocate Otto During, involving 13 military personnel for allegedly committing mutiny against the state in August 2013. 

Prosecutor Major Sowa said, “the prosecution hereby submits its closing address pursuant to rule 62(1) of the court martial rule[s] 2003, the said rule obliged us the prosecution to submit the closing address after we have adduced evidence for our case”. 

The prosecution made a presentation of a 25-page document to the court for all the 13 accused and for all counts charges but however the prosecution made an application to the Court for an amendment of count one which states ‘conspiracy to commit mutiny’ but should rather state ‘committing a civil offence’ contrary to section 7(2) of the Republic of Sierra Leone Armed Forces Act (RSLAF) 1961 as amended. 

Major Sowa appealed that the particulars of offence remains the same and argued that he made the application because under the first schedule of the Act (RSLAF 1961); conspiracy is not listed as a military offence. 

The only defence lawyer in court, Thomas Beah, vehemently argued that the defence objected to the application made by the prosecution for the amendment of count one, noting that the amendment is a calculated ploy by the prosecution to waste the precious time of the honourable court. 

Thomas further argued that prosecution has been given four weeks to make their closing address. 

“It will be unfair to the accused that after the prosecution and defence had closed their case within one year, for the prosecution to apply for an amendment which will lead to fresh evidence”. He therefore appealed to the court to urge the prosecution to submit their closing address and forget about amending the indictment. 

But things didn’t go as the defence Lawyer Thomas Beah expected, as Judge Advocate Otto During upheld the application made by prosecution noting that “I will allow the indictment to be amended and it cannot do any unfair and injustice to the accused persons”. 

Smelling defeat in his bid to counteract the application made by prosecution, Thomas Beah made another application stating that before the amendment, a Note of Order should be endorsed by the judge but his application was again overruled by the Judge, stating that for the endorsement of a note of order for the amendment will be a waste of time and he stressed that time is of the essence. 

It’s been a year and a month now since the commencement of the trial in May 6, 2014, while the accused are apprehensive about their fate, the court Martial was adjourned to June 19, 2015 to give ample time to the defence lawyers to prepare their closing address.

"Time is of the essence"? Mutiny is not listed as a military offense? And where were the other defense counsel? Oy.

Free speech and the UCMJ: writing to Congress

Lt Col James W. Weirick,
USMC (Ret)

Hard on the heels of an Air Force genera officer's calling it "treason" for personnel to question the party line on an acquisition issue in communications with Congress, a retired 4-star officer has tried to chill free speech by saying it is insubordination and prejudicial to good order and discipline for personnel to communicate their dissenting views to members of Congress. James W. Weirick, an outspoken retired lieutenant colonel of Marines (and judge advocate), has a good essay on the claim here. One might also cite, beyond the protection from reprisals afforded to congressional correspondence in 10 U.S.C.  § 1034, the last clause of the First Amendment. Do you remember it?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Supreme Court of India fines government over missing POW report

The Supreme Court of India has fined the government Rs 20,000 for failing to issue a report on the status of Indian POWs held by Pakistan. According to this report:

The bench presided over by Justice T S Thakur noted that the court had on November 18 directed the Centre and ministries concerned to collate information and indicate current status of the prisoners, but they still needed more time to file the report. “There is no reason to grant additional time since sufficient time has already been granted to them. 

"However in the interest of justice, one last opportunity is granted to them for filing the status. We deem it appropriate to impose Rs 20,000 cost to be deposited in SC Advocate on Record Welfare fund,” said the bench.

China's new defense white paper and military law

On May 26, the Chinese government issued its newest Defense White Paper, China's Military Strategy, designed to put the best face on Chinese military developments. Law takes a subsidiary place in the Defense White Paper but can be seen, nonetheless, in the following places (among others):

1. Intensifying efforts in running the armed forces with strict discipline and in accordance with the law. Aiming at strengthening the revolutionization, modernization and regularization of the armed forces in all respects, China will innovate and develop theories and practice in relation to running the armed forces in accordance with the law, establish a well-knit military law system with Chinese characteristics, so as to elevate the level of rule by law of national defense and armed forces building..
2. Improve the management responsibilities of relevant military and civilian institutions, improve the general standards for both the military and the civilian sectors, make studies on the establishment of a policy system in which the government makes the investment, offers tax incentives and financial support, and expedites legislation promoting military-civilian coordinated development....
3. the armed forces will continue to conduct such MOOTWs [Military operations other than war] as emergency rescue and disaster relief, counter-terrorism and stability maintenance, rights and interests protection, guard duty, international peacekeeping, and international humanitarian assistance and disaster relief (HADR). They will work to incorporate MOOTW capacity building into military modernization and PMS, and pay special attention to establishing emergency command mechanisms, building emergency forces, training professionals, supporting task-specific equipment, and formulating relevant policies and regulations. Military emergency-response command systems will be tuned into state emergency management mechanisms. China's armed forces will persist in unified organization and command, scientific employment of forces, rapid and efficient actions, and strict observation of related policies and regulations. 

As this writer has pointed out, on this blog (one year ago!) and elsewhere, Chinese military legal officials recognize that they have to deal with a range of complex issues, but have an inadequate body of legislation to deal with them. Senior military legal officials see it as a particular problem when the Chinese military has to increasingly interact with other domestic institutions and foreign and international organizations. Civil military integration is an example where better legislation will be needed as well as dispute resolution. Retired military legal officials are more outspoken about the secrecy and isolation of military law and military legal institutions from the rest of Chinese law. Future blogposts will explore their insights.

Indian Ministry of Defence finally implements decisions of the Armed Forces Tribunal related to disabled veterans

At last the Indian Ministry of Defence (Defense) has implemented about 250 decisions of the Armed Forces Tribunal related to disability benefits to disabled and war disabled soldiers.

How did it reach this stage?

Here’s how: ‘The Indian Express’ reports.

Death penalty upheld in Pakistan

A 3-judge panel of the Supreme Court of Pakistan today upheld the constitutionality of the death penalty. Aside from its general importance, the decision could prove critical in connection with the pending challenges to the military courts authorized under the 21st Amendment to the Constitution, as some number of cases tried in those courts can be expected to lead to death sentences. Six already have.

Peacekeeper misconduct, continued

The controversy over a report detailing misconduct by peacekeepers has not abated. Today's New York Times has this article on the controversy and some of the unanswered questions, including the slow pace of both proceedings and disclosure to the public. The situation suggests an unresolved tension between the UN's peacekeeping and human rights missions. Excerpts from the Times's story:

For five months, an unknown number of people in the French forces, sent to protect civilians from the violence tearing the country apart, forced boys to perform oral sex on them, according to testimonies collected by the United Nations. The boys, aged 9 to 15, said they had sometimes been lured with the promise of military rations. 

Now, nearly a year after the allegations came to light, no one has been charged, let alone punished. 

Instead, the allegations and the aftermath have highlighted an abiding problem of international peacekeeping: How can foreign forces be held accountable when those who are sent to protect civilians in war zones end up grievously hurting them instead?

Whether peacekeepers serve the United Nations or are under their own national commanders — as in the case of the French troops in Bangui — it is ultimately up to the soldiers’ home countries to investigate and prosecute such cases. 

The United Nations does not have the legal authority to prosecute or punish a country’s soldiers, even when they are serving under the banner of the United Nations.

*   *   *

Officials point to the case of Pakistani peacekeepers accused of raping a boy in Haiti a few years ago as a model of accountability. Pakistan sent military judges to conduct a trial in Haiti. One peacekeeper was convicted, and then, to the dismay of many Haitians, whisked back to Pakistan to serve a one-year jail sentence. 

“People can always say punishment was too light or whatever, but the system worked as it should,” Anthony Banbury, the United Nations assistant secretary general for field support, said of the case. 

Though the United Nations does not have the authority to prosecute a sovereign country’s soldiers, it does have leverage: It can bar a unit commander or an entire country from getting a lucrative peacekeeping contract because of the way it has handled sexual abuse allegations. Even so, that is extremely rare.

Follow-up on the news

Ex-Maj Zaidi Ahmad, RMAF

Remember Malaysian Air Force Major Zaidi Ahmad, who was convicted by a court-martial for going public with information about the ineffectiveness of the so-called indelible ink used (in theory) to prevent vote fraud? He's back in the news: the political party with which he is affiliated, PAS (the Pan-Malaysian Islamic Party) is making noises about expelling him for campaigning against the incumbent party leadership:

Former Royal Malaysian Air Force officer Major Zaidi Ahmad said he was ready to be investigated for allegedly breaching party discipline while campaigning for the PAS elections. 

Zaidi is currently campaigning for Ahmad Awang, who is contesting for the PAS president’s post in the coming PAS Muktamar (general assembly) in June, as the latter’s special officer. 

Certain quarters claimed that the campaigning by Zaidi had caused unhappiness among the supporters of incumbent PAS president Datuk Seri Abdul Hadi Awang. 

Zaidi said supporters of Abdul Hadi had been calling for his sacking as they were unable to handle any criticism at all against their leader. 

“It is normal for a candidate to promote his own strengths while highlighting the weaknesses of his opponents. 

“For me, the sacking is not an issue as I am confident that I have not breached any party discipline, including prohibitions against slander and personal attacks,” he told The Rakyat Post.

He added PAS was in need of a new leadership to ensure that it survived and continued to gain support. 

Zaidi also said that a new leadership would ensure that gains made under the late PAS spiritual leader Datuk Nik Abdul Aziz Nik Mat could be maintained while making sure that PAS remained in Pakatan Rakyat to face the next General Election. 

Zaidi was a pilot instructor flying the F-5E fighter jet before he got into trouble for lodging a police report about the “indelible” ink during the 2013 General Election. 

He lost his job when a military court found him guilty of breaking protocol over the indelible ink issue.

A Pakistani constitutional identity crisis?

The one good thing that can be said about the current debate over Pakistan's military courts is that [at least] there is a debate. Here are a couple of incisive paragraphs from an Express Tribune op-ed by Zehra Husain that appeared a few hours ago:

In another hearing, a member of the bench argued that the word ‘sect’ was not included in the original 1973 Constitution but was added later by a military dictator in 1985 to Article 227. In this particular hearing, it was also argued that accepting certain features of the Objectives Resolution may lead to the destruction of the other provisions of the Constitution. The counsel for the federal government has also pointed out to the Supreme Court that the 1973 Constitution was an “uneasy marriage between socialism and Islam”, which could never be successful. 

These court proceedings are in essence a walk through the constitutional history of Pakistan, demonstrating how the state has itself tampered with the country’s self-perception. It sheds light on how religion became inseparable from the Pakistani identity and took on a sectarian nature. Even though our judiciary has a history of passing conservative and problematic judgments, at least, as this particular case suggests, it is debating. A conversation Pakistan should be engaged in given the number of lives lost in a warfare that is part sectarian and part an attempt to crush meaningful dissent. The debate in the Supreme Court is important and necessary, yet it is restricted to this elite institution and barely trickles down to the masses.

Take a few minutes and read the whole thing here.

Military trials for Egyptian university students who block roads

Daily News of Egypt reports:

Five Mansoura University students were handed three-year sentences by a military court Thursday, with another student receiving a seven-year sentence on Thursday, said ‘No to Military Trials’ independent movement member Sara Al-Sherif. 

The students were arrested on 16 April 2014 in front of Mansoura University’s Al-Galaa gate on charges of illegal assembly and blocking roads, amongst other charges. The case was later referred to the military prosecution on 20 January 2015, following the issuance of the controversial presidential decree categorised under Law 136/2014. 

In October, President Abdel Fattah Al-Sisi issued a decree stipulating the referral to a military court of any person who attempts to vandalise public property. Al-Sisi urged military personnel to take part in protecting those properties, along with the police forces. The law will remain in place for two years. 

Amongst the facilities “protected…against terrorist attacks” by the new law are “stations, power networks and towers, gas and oil fields, rail lines, road networks, bridges”.

It is estimated that over 2000 civilians have been referred to military courts for trial since November 2014.

Lenient military court sentence continues to stir controversy in Lebanon

L'Orient | Le Jour reports:

The "March 14" campaign continues against the verdict in the case of former minister Michel Samaha and against the prerogatives of the military court.

Sentenced to 4 and a half years in prison by this exceptional court after being convicted of having wanted to conduct attacks in Lebanon, the former adviser to Syrian President Bashar Assad could in principle be tried again based of incriminating evidence that had not been presented at the original trial. Since the announcement of the verdict, pressure from the streets is increasing. Several politicians and civil society actors cried foul, seizing the opportunity to demand revision of the prerogatives of the military court.

Last Saturday, "March 14" lawyers organized a conference in Biel entitled: "The military court: the need to reduce its prerogatives, define its role and propose a legal substitute." Several deputies took part in the discussion, as did Lokman Slim, representing human rights associations.

In a speech, attorney Fadi Saad indicated that in 1997 the UN Human Rights Committee issued a report in which it expressed "concern" vis-à-vis the broad powers enjoyed by the military court in Lebanon, especially that "it exceeds the limits of disciplinary matters for targeting citizens," he said. The report thus recommended that some of its powers should be transferred to ordinary courts, the committee stressed.

"Today we decided to raise our voices to say that the exception should remain so. Special courts will ultimately produce a system that represses justice and tramples rights," said the lawyer. He argued on behalf of his colleagues that respect for fair trial rights of the defense, transparency, and the required judicial independence are not guaranteed by the military court.

"My attitude towards this body has not been inspired by the 'political verdict' delivered in the case of the accused Michel Samaha," continued FL deputy Elie Keyrouz. "My position comes from my philosophy and is based on respect for human rights," he said. According to him, the reason for the establishment of military courts is to allow the application of exceptional measures "that are not compatible with the standards of justice."

In turn, Ziyad al-Kadri MP said the verdict against the "terrorist Michel Samaha was a national shock whose effects will only cease when the Military Court of Cassation accepts an appeal by the military prosecutor and the trial is resumed."

Finally, over the weekend Lebanese Forces students held symbolic protests in several Lebanese regions to express their rejection of both the judgment and the court that pronounced it. [Rough Google translation.]

Old soldiers

There is considerable attention to the problem of child soldiers, but how about the other end of the spectrum? Egyptian law provides that new recruits cannot be over 30 years of age except in time of war, a state of emergency, mobilization, or when directed by the President. A man of 64 is suing to be permitted to enlist, contending that the country is in a war on terrorism. Details here.

Panel member seniority requirement is jurisdictional

The Supreme Court of Nigeria has set aside an Army court-martial on the ground that one of the members was junior to the accused, both being captains. Section 133(1) of the Armed Forces Act provides that all members of the court must be senior to the accused. The point had not been raised below, but the Supreme Court found it jurisdictional error and hence not waived. Here is a report from Nigeria.

Vets in Big Law

Bloomberg BNA has this timely story for Memorial Day about veterans who practice in fancy law firms. A partner at the Cravath firm writes:

“Most law firm hiring partners don’t have military experience and they probably don’t have any friends or close family members with military experience. While there’s a general level of respect for miliary service, I don’t think it’s widely understood how military experience can be applicable to legal work. The challenge for someone coming from the military is to educate the decision makers at the firms about the skills and experiences that veterans bring to the table and how these skills and experiences translate to legal work. We are always looking for junior associates who are able to work independently in a challenging environment, exercise good judgment, and take the initiative, and many veterans are able to do all of these things.”

It is interesting to compare the career trajectories and opportunities of those who enter the profession after relatively short periods of active duty with the challenges facing judge advocates who remain on active duty for longer periods, including through retirement eligibility. They seem more likely to seek post-service jobs in government as opposed to hanging out a shingle. Each path has its rewards.

Comments, anyone? (Real names, please.)

Pardon me -- do your numbers exceed the U.S.?

Tasnim New Agency reports:

Supreme Leader of the Islamic Revolution Ayatollah Seyed Ali Khamenei pardoned or commuted prison terms of 102 convicts that had been found guilty by the Iranian Armed Force’s judiciary system.

Article 110 of the Constitution grants the Supreme Leader the right to pardon or reduce the sentences of convicts upon a recommendation from the head of the Judiciary.

The clemency, however, does not apply to all types of convicts[.]

In the U.S., all pardons, including those for military personnel convicted at court-martial, are processed through the U.S. Pardon Attorney.  You can find information about specific pardons here. You will see that President Obama has issued a pardon in one general court-martial case so far.  President Bush seems to have granted a total of three; if you do not count the several Selective Service cases.

Some sober thoughts from Pakistan

"I was and remain opposed to military courts. There are many reasons for my opposition, which I have listed in my writings. But just to recap some, the issue of poor prosecution, ostensibly the reason for setting up military courts, is not about what a judge does or doesn’t do. In a trial, the judge is as good or bad as the prosecution is. If that is how it works then unless the military can also provide from among its ranks thousands of prosecutors — which it can’t — it doesn’t matter if you put someone in uniform in the judge’s chair instead of the black robes. Also, higher courts have tended to overturn verdicts by ATCs because the anti-terrorism courts tend to overlook the fine print of law. There is also the issue of deterrence. If we want to prosecute and sentence to death terrorists, then it is legitimate to ask the question of why the over hundred death-row prisoners that have been hanged to death by now have such high percentage of those who were involved in murders, even if they were sentenced by ATCs. Why have we stopped executing hardcore terrorists. Why did the Interior Ministry put out a notification that it was lifting the moratorium on death sentence overall without informing the Ministry of Foreign Affairs or consulting with it. I do not believe in the absolutism of those who are opposed to the death sentence per se, though I respect their views and I think they have some very strong arguments. But equally I find it abhorrent that others should take pleasure in hanging people by the neck till they die, as if taking someone’s life is a mere trifle, which it is not.

"I realise that there is a sunset clause for military courts. But I believe that too many of us conceded to the 21st Amendment too soon and too easily. The Amendment is an act now but that should not stop us from continuing to debate the issue."

Pakistani columnist and security analyst Ejaz Haider, interviewed in The International  News

Memorial Day, Monday, May 25

Ball's Bluff National Cemetery, Leesburg, Virginia

"Dawn" and sunset

Dawn, the influential Pakistani newspaper, has run the following discouraging editorial suggesting that the 21st Amendment, which authorized military courts with power to try civilians for two years, presents a nonjusticiable political question:

THE Supreme Court is grappling with a two-fold question: can a constitutional amendment ever be struck down? And does the 21st Amendment to the Constitution, as a result of which a new regime of military courts has been established, meet the criteria for an amendment to be struck down in part or in full? 

The sheer magnitude of what was done in January by parliament has thus once again come into focus.

Effectively, parliament created an exception to the existence of fundamental rights in cases to be tried under the new military courts regime.

It has taken away the right of the superior judiciary to enforce fundamental rights in those specific cases. It is a clear abomination, one justified in the name of expediency because the terror threat had reached a magnitude that threatened to engulf state and society.

But there is a prior problem for the court here: nothing in the Constitution suggests that the Supreme Court has the power to strike down an amendment passed by parliament. To find that power now, one would have to go against the grain of several past judgments and wade into the speculative realm of a basic structure of the Constitution. 

Not every problem ought to have a judicial solution. There is a category of issues that are political questions. Perhaps the military courts regime falls into the latter category — an abomination though they may be, if the superior judiciary finds for itself a supra-parliamentary role, how might that be used by the Supreme Court in future cases, when amendments to the Constitution are not clear-cut violations of fundamental rights?

There is danger in finding powers where none were known to exist before. Parliament is an elected body and the people can express their displeasure with something their elected representatives have done by either unseating them at the next election or mobilising to put pressure on parliament to consider rectifying the original problem. 

In this case, the original problem is a decrepit criminal justice system and the need for urgent reform. 

Reform is a combination of legislative and executive action. But has parliament demonstrated even the slightest interest in getting the government to focus on criminal justice reform?

It appears that after caving in to pressure from the military to establish the new regime of military courts to try so-called jet-black terrorists, parliament and the government are content with the sunset clause in the 21st Amendment, whereby the parallel regime is set to lapse in 2016.

But inaction on the reform front could prove to be reason enough to demand an extension of the black law in 2016.

It hardly seems likely that the country will be cleared of the very worst of terrorists and their leaders in 18 months’ time. If the ordinary criminal justice system is not in shape to deal with the terror threat by then, then what?

The editors seem resigned to hoping that Parliament somehow musters the courage to resist the temptation (read: military pressure) to make the 21st Amendment permanent rather than allowing it to sunset at the end of next year. Unless Parliament takes decisive measures immediately to fix the civilian criminal courts and related processes -- whose shortcomings were the putative basis for the 21st Amendment in the first place -- one can only assume the pressure to keep the military courts in existence past their current "sell by" date would be irresistible.

What is missing from the editorial is any recognition that there is respectable contemporary authority for the notion that a constitutional court like the Supreme Court of Pakistan can hold even a constitutional amendment unconstitutional. Has anyone at Dawn actually studied the case law and scholarly literature in this regard? One would hope so, but you would never know it from this editorial. Dawn should commission an op-ed on the subject by some broadly respected Pakistani scholar -- perhaps a retired jurist -- who can do justice to the issue. It would also serve its readers interests by reproducing some of the arguments actually being made to the Supreme Court on this score, rather than snippets plucked from courtroom colloquies.

The Supreme Court resumes hearings on the constitutional petitions next week.

Busy times for Egypt's military courts

Egypt's military courts have been keeping busy with prosecutions of civilians, including juveniles. Daily News of Egypt has this round-up:

An Alexandria military court issued sentences against 147 defendants, including at least 12 children aged between 15 and 18, according to the National Community for Human Rights and Law. 

The Egyptian Foundation for the Advancement of Childhood Conditions (EFACC) stated that despite the due release of six children in this case, numbered 152/2014, the foundation maintains that all military trials of children must end. 

The sentences varied, with approximately 50 people receiving life sentences, while 30 received 15-year prison sentences, seven received 10-year sentences, two received seven-year sentences, and 18 received five-year sentences. A total of 37 were found innocent. 

Meanwhile, three children were declared as falling outside the jurisdiction of the court, whereas six more children received 15-year sentences, while three other children were proven innocent. According to EFACC, the charges include “offences against public property and intimidating civilians through force and violence”. 

Offences such as these now fall under the jurisdiction of military courts as of a recent decree expanding the scope of military trials to include any violations against “vital state properties”.

*   *   *

Likewise, military trials for civilians have risen. On 17 May, Egypt executed six men that had been sentenced to death in a military court, while civilians courts are still looking into the legality of their executions. Evidence purportedly points to some of them having been arrested prior to the date of the crimes for which they were convicted.

Religion in the military workplace

Two religious issues are on the screen in the U.S. Armed Forces. In one, the Air Force has decided not to penalize a major general (who is not a chaplain) for giving a sectarian speech in uniform.

Maj. Gen. Craig Olson gave a 23-minute speech at a [congressionally-suppported] May 7 National Day of Prayer Task Force event in which he said God enabled him to fly aircraft, manage programs worth billions of dollars and sell weapons systems to the Iraqis. 

He also asked the audience to pray for Defense Department leaders, who "need to humbly depend on Christ," and to pray for troops preparing to deploy again so they can "bear through that by depending on Christ."

The speech can be viewed here on YouTube.

In the other case, an enlisted Marine has been convicted of, among other offenses, disobeying an order to remove quotes based on Isaiah 54:17 that she had posted in three places around her government computer. The case is before the U.S. Court of Appeals for the Armed Forces, where a former Solicitor General of the United States is seeking a grant of review to litigate whether the prosecution violates the Religious Freedom Restoration Act. If the court grants review, the case could wind up at the Supreme Court. (Indefensibly, most court-martial appeals never become eligible for Supreme Court review either because they do not meet the jurisdictional threshold for appellate court review under the Uniform Code of Military Justice or, if they do, because the Court of Appeals for the Armed Forces refuses to grant review, thereby placing them beyond the Supreme Court's reach.)

Military courts as instrument of repression in Thailand

From Human Rights Watch's one-year-down report on Thailand under the junta:

Military courts have generally imposed harsher sentences in lèse majesté cases than had the civilian courts. Penal Code article 112 provides for imprisonment of 3 to 15 years for lèse majesté crimes. Previously, civilian courts often sentenced a guilty person to 5 years per count. But since the coup, military courts have often delivered harsher sentences. In the case against a Red Shirts blogger, Thiansutham Suttijitseranee (known as “Yai Daengduad”), the Bangkok Military Court sentenced him to 10 years per count. For his five alleged lèse majesté Facebook postings, Thiansutham received 50 years in prison, later reduced to 25 years when he pleaded guilty. Human Rights Watch is unaware of any longer sentence under article 112.

Rwandan court-martial overrules jurisdictional objection by retiree

A court-martial in Rwanda has overruled the objection of an accused brigadier general that the court lacked jurisdiction over him because he was retired. The court also rejected a contention that the military judge had to be senior to the accused. The retired general and his co-accused are charged with spreading harmful propaganda and rumors about the state. Details here.

Stirrings -- and misinformation -- in Islamabad?

It's too soon to say whether the Supreme Court of Pakistan's bark is worse than its bite, but perhaps there is reason for a smidgen of optimism based on this account of today's hearing on the various constitutional petitions challenging the 18th and 21st Amendments to the Constitution -- and the military courts:

Pakistan’s Supreme Court on Thursday said the establishment of military courts could not be blamed on the judiciary but in fact was a failure by the government and civil departments. 

A 17-judge bench headed by Chief Justice Nasirul Mulk heard the 18th and 21st constitutional amendment case here on Thursday. 

The judges castigated PML-N counsel Khalid Anwar over the formation of military courts.  

Chief Justice Nasirul Mulk asked how, if basic rights were suspended, relief could be provided against the verdicts of military courts.

Justice Qazi Faez Isah remarked that the job of the army was to defend the borders, not to sit in judges’ chairs. Why was the additional burden being put on them, he questioned.
“It has become a tradition when government fails to do its job of protecting the people it is quick to blame the judiciary. Should we hold the Constitution and justice in abyss for two years?” he said. 

Counsel Khalid Anwar, giving his arguments, said even in the US* and Australia, the verdicts of military courts cannot be challenged as it is a matter of national security.

He said that, due to a wave of terrorism in the country, there was dire need to make effective legislation, and awarding strict punishments to terrorists was the need of the hour.

The options were to leave the country at the mercy of terrorists or take measures for their elimination, he said. Due to this situation the 21st amendment was approved. 

If another tribunal is formed under the 21st amendment, even then its jurisdiction cannot be challenged under article 199, he added. 

Anwar further argued that judges of terrorism courts and High Courts and witnesses are threatened and their lives are at risk, due to which often enough evidence is not provided and the criminals go scot free.

“We have to drink this bitter medicine of military courts as we cannot provide protection to key witnesses and judges and under this air of fear judges cannot perform their duty,” Anwar said. 

He further argued that the state’s case was very strong and basic rights were being protected. 

Justice Asif Khosa said the counsel’s remarks meant that he was saying, due to the judicial system, terrorism was increasing. He said this was a law and order problem and it is the job of administration to tackle it.

Justice Khosa added that the establishment of military courts was not the failure of the judiciary, but failure of government, administration and civil departments.

He further said there was need for speedy trials.

“The delay in terrorism cases is due to delay in evidences and incompetence of the prosecution. Who bought 8,000 people [to face] death [sentences]? We didn’t bring them.” 

To which Anwar replied, “I agree it is the incompetence of the administration. The civil system has failed.” 

He said that he was not criticising the SC.

“In Karachi the army is working and my rights are affected, but the people are happy as they are being protected.” 

The chief justice asked how, if basic human rights were suspended, people could approach the court.

The court sought a detailed report of killings in terrorism incidents and adjourned the hearing until Monday.

* Really? What about the statutory provisions for review of courts-martial and military commissions, or cases like Duncan v. Kahanamoku or Hamdan v. Rumsfeld or a host of other decisions of the Supreme Court of the United States. True, deference runs strong and deep when military issues reach the Supreme Court, and equally true, the limits on which courts-martial are subject to appellate or habeas corpus review are excessive. But counsel's casual characterization of American law on the subject is nonetheless very wide of the mark. [Footnote added. Perhaps a reader in Australia may wish to comment on the High Court of Australia's national security jurisprudence and judicial review of courts-martial, as in Re Aird and other cases.]

Of course, talk is cheap, and comments from the bench at oral argument may or may not augur what the court or any member will do when it comes time to vote and write an opinion. Still, this is an engaged court, fully aware of the high stakes.

What are we missing?

Is Global Military Justice Reform missing some big story or major theme in your part of the world (or somewhere else)? There's no shortage of low-hanging fruit (the never-ending cases, recalcitrant national legislatures, impunity issues, trying civilians in military courts, silly fact patterns), but how about the elusive developments, the things that are either -- pick the image -- "hiding in plain sight" or "under the radar"?

Let us know by posting a comment (real names only, please). We'll try to follow up as we scan the horizon.

A military judge seeks to apply the Military Code to a civilian for lying during the proceedings

Prior to 1985, while the Spanish Code of Military Justice was in force, military courts heard all cases of infractions of the law committed by members of the military or that occurred in military establishments. Today, only those infractions that are set forth in the Military Criminal Code come before the military courts. For example, drug trafficking on a military base or drug trafficking committed by a member of the military does not come before a military court. The kinds of offenses heard by Spanish military courts include: insulting a superior officer, disobedience, abuse of authority, desertion, etc.

Today (May 21, 2015) a military judge in a separate opinion filed in connection with a judgment of the Military Court in Santa Cruz de Tenerife, Spain, advocated applying the Military Criminal Code to a civilian who lied during a trial in which a Guardia Civil (member of the military charged with police duties) was acquitted of insulting his superior officer. The Association of Guardia Civiles (AUGC) made public the judgment of the Military Court of Santa Cruz of Tenerife in which this separate opinion was included and which was rejected by the rest of the Court.

The civilian, a taxi driver, appeared as a witness in the proceedings. The judge who authored the separate opinion is of the view that the civilian and the superior of the defendant lied to the court for which reason he proposes investigating them for "false testimony."

The judge, a Lieutenant Colonel, blames the Military Prosecutor for believing the testimony and changing his position since he ended up asking for the acquittal of the defendant.

NGOs object to trial of juveniles in Pakistan's military courts

The Human Rights Commission of Pakistan and the International Commission of Jurists have called upon Pakistan not to prosecute juveniles before the military courts authorized under the 21st Amendment to the country's Constitution. The groups' letter is reported here:

Geneva-based International Commission of Jurists (ICJ) and Human Rights Commission of Pakistan (HRCP), in a letter to Prime Minister Nawaz Sharif and Interior Minister Chaudhry Nisar Ali Khan, said the proceedings in military courts, which are far from ensuring special care and additional protection for juveniles, fell well short of national and international standards requiring fair trials before independent and impartial courts. 

They said the judges of such courts were not trained on protecting the rights of the child and the principles related to juvenile justice. 

The letter said, "The 21st constitutional amendment and the corresponding amendments to the Army Act, 1952, give military courts jurisdiction to try all persons, including civilians, alleged to have committed certain offences related to terrorism. 

"The amendments provide that the government may transfer a case related to the enumerated offences under the Army Act from any court (which prima facie includes juvenile courts) to a military tribunal for trial. . .  The amendments do not expressly exclude juveniles from their ambit."

The ICJ and HRCP said these provisions have created the possibility that the requirement under the Juvenile Justice System Ordinance (JJSO), 2002, whereby juvenile courts shall have exclusive jurisdiction to try individuals below 18 years of age, could be overridden in certain terrorism-related cases. 

"In the circumstances, it is important that the government clarifies and ensures that in implementing the law, individuals who were under the age of 18 at the time of the alleged crime may not be tried in military courts, not least because a trial before such a court would violate Pakistan's obligations under international law," they said. 

ICJ and HRCP reminded the government that under international standards, including the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010 and Convention on the Rights of the Child, which Pakistan ratified in 1990 juveniles were entitled to all internationally recognised fair trial guarantees that applied to adults, as well as special care and additional protection. 

"HRCP and the ICJ urge you to clarify the Government's policy on referral of juveniles to military courts for trial, ensure that in its implementation of the amended law, no case of an individual who was under the age of 18 at the time of the alleged crime is referred or transferred to military courts for trial," the letter to the government said.

Much more than a reprieve

Premium Times reports: The brigade commander of the 23 Armoured Brigade in Yola, Adamawa State, Victor, Ebhaleme, has been acquitted by a general court martial holding at the 9 brigade officer’s mess, Ikeja cantonment.

Mr. Ebhaleme, a colonel, was accused of failing to ensure that support weapons approved for units under his brigade were collected.

He was arraigned on a lone count charge of negligent performance of military duty under section 62b of the Armed Forces Act.

A military source told PREMIUM TIMES that available evidence in court showed that there was no such approval for the weapons.

The colonel was arraigned alongside 21 other officers including a Brigadier-General, J.O Komolafe, on January 19.

That is not all.

Also, a different general court martial convened to try a Brigadier General, Enitan Ransome Kuti, and four other senior officers, blamed for the loss of Baga in Borno State, to Boko Haram insurgents in January, is expected to resume sitting Thursday.

Human Rights Watch report on retaliation against sexual assault complainants

Human Rights Watch has issued a lengthy report on retaliation against sexual assault complainants in the U.S. military. According to HRW:

[O]ur research indicates that the six purported accountability mechanisms have not proven up to the task. These are: reporting to the commander; reporting to a commander in another chain of command; reporting to a Sexual Assault Response Coordinator at another installation; filing a Military Equal Opportunity (MEO) Complaint; reporting to the Department of Defense inspector general; and punishing retaliators for failing to obey orders.

These mechanisms are not utilized, are ineffective, poorly understood, hamstrung by jurisdictional limitations, not sufficiently independent of command structures, mistrusted because they lead to new incidents of retaliation—or all of the above. Further, little effort has been made to deter retaliation by holding wrongdoers accountable for their acts, despite a plethora of disciplinary options available to command.

The report, Embattled: Retaliation Against Sexual Assault Survivors in the US Military (May 2015), is available here.

Inter-American Court to Mexico: another change is needed

The Inter-American Court of Human Rights has ruled that Mexico's military justice system needs to be further amended in order to satisfy human rights requirements. According to this article:

Even though Mexico, in June 2014, limited the scope of military jurisdiction, requiring soldiers who violate the human rights of civilians be tried in civilian courts, the Inter-American Court of Human Rights (IACHR) has now concluded that that legal reform is insufficient as it does not apply to cases where the victim is another member of the Armed Forces. 

By a decision issued on April 17, the court ruled that, even though Article 57 of the Code of Military Justice was amended last year, it "continues to include wording that does not conform with the aforementioned [international] standards because it allows that court jurisdiction to conduct the investigation and prosecution of human rights violations, when the accused is a military man and the victim is also a military."

Specifically, the court found that current Mexican legislation still does not fully recognize that "military justice is not the competent jurisdiction to investigate and, where appropriate, prosecute and punish the perpetrators of human rights even though both the perpetrator and the victim are military."

In addition, the inter-American judicial body stressed that "military courts can only judge the commission of crimes or offenses that, by their very nature, infringe the legal interests of military order" and human rights go beyond that order.

The 2014 reform of the Code of Military Justice, it should be recalled, was the result of a 2010 decision by the Inter-American Court of Human Rights against the Mexican State, finding that military courts had been used to conceal soldiers involved in a case of illegal detention and torture.

Thus, although the court recognized that the 2014 reform "is an important harmonization of domestic law with Convention and international standards," it also stressed that it is not "full compliance" with the 2010 judgment.

For this reason, the Inter-American Court of Human Rights urged Mexico to take the measures necessary to adapt domestic law completely, within a reasonable time, so that soldiers who violate another person's rights are subject to civilian justice, even when the victim is also a member of the Armed Forces. [Rough Google translation.] 

History of Lebanon's military court: is reform in the works?

The current controversy over the lenient sentence awarded to former Lebanese cabinet minister Michel Samaha has sparked new interest in the country's military court. Aspects of the court's history are summarized in this article. Excerpt:

On Nov. 19, 1947 Abdallah al-Yafi, a lawyer who would go on to serve as prime minister of Lebanon 12 times, convened a meeting of Parliament’s Committee of Administration and Law. The session was dedicated to studying an amended version of the Code of Military Justice. Leafing through the document, Yafi made remarks that would come to encapsulate the principal critique of the military justice system expounded by human rights activists six decades later. “I would like the government to tell us the rationale behind these amendments,” Yafi said, according to the meeting minutes. “I notice that these amendments tend to enlarge the prerogatives of the military courts, [but in reality] the military courts are courts of exception and should only be given large prerogatives during times of war.”

The amendments were made, giving the military courts jurisdiction over matters pertaining to the everyday lives of Lebanese. In time, the court would preside over a wide spectrum of cases, from those relating to top national security matters, to car accidents and theft.

Sixty-eight years after Yafi uttered his observations, critics of Lebanon’s military court system see the political outcry over the controversial ruling handed to former Minister Michel Samaha as a golden moment to push a reform campaign while political interest is still on their side.

*   *   *

For Riad Matar, a lawyer who has represented clients in military court cases for over 20 years, “dissolving the military court is impossible, we have to accept that. But you can amend it to focus only on cases involving military personnel.”

Pesky defense counsel in Nigeria

The inability of the Court Martial in Lagos to fast-track the court process was the issue of delay tactics employed by lawyers of the accused.

Most of the senior officers being tried were said to have hired the services of Senior Advocates of Nigeria (SAN) to defend them and their insistence that every substance relating to each case must be t[h]rashed out has made it cumbersome.

From this news account of the transfer of a Nigerian court-martial with 31 accuseds

from one trial site to another

A $10 fine?

Lt Col James W. Weirick,
USMC (Ret)

Retired Marine Corps judge advocate James W. Weirick has written this op-ed about the startling outcome of a case in which a federal district judge imposed a ten dollar fine on a Marine who shot a Navy corpsman but was convicted only in civilian court and only of making a false official statement (that was soon recanted).

Did military justice fail the corpsman? If so, should someone have been held accountable?

See what you think, and feel free to comment (real names only, please).

Heavy caseload in Nigeria

Nigeria is reported to have 473 indiscipline court-martial cases pending at this time.

Military courts begin hearings in Pakistan

The new military courts established under the 21st Amendment to the Pakistani Constitution began hearings today in seven cases in Lahore. Details are sparse, judging by this report. Challenges to the new courts are pending in the Supreme Court of Pakistan.

Limited review of courts-martial by Supreme Court of Pakistan

A two-judge bench of the Supreme Court of Pakistan has upheld capital sentences adjudged by a field general court-martial (FGCM). This account in The Express Tribune reveals the limited scope of civilian review of courts-martial under Pakistani law:

Authoring the apex court’s judgement on Saturday, Justice [Ijaz Ahmed] Chaudhry said the high court had no jurisdiction with regard to the decision of the FGCM. 

“It is also a settled law that the superior courts can interfere in the orders of the authorities relating to the armed forces if the same are found to be either result of mala fide (in bad faith) or the same are coram non judice (not before a judge),” read the verdict. 

“We have not been able to find out anything mala fide on the part of the prosecution or authority. Neither is the order passed by the field general court martial a case of no evidence nor is the evidence led by the prosecution insufficient. 

There is sufficient material available to prove the guilt of the appellants. In absence of anything mala fide on the part of the prosecution, the conviction and sentences awarded to the appellants by the field general court martial cannot be stamped to be coram non judice.” 

The court rejected the arguments of the counsels for the petitioners that the applicants were not given an opportunity to consult legal practitioners of their own choice. 

The bench also observed that it was on record that the appellant was represented by a defending officer and in the writ petition before the high court it had been specifically mentioned that the appellant could not afford engaging a counsel due to his sheer poverty. 

“In such a situation the apprehension of the learned counsel is misconceived,” added the top court’s judgment.

Postscript. With thanks to a reader in Pakistan for the citation, the decision in Mushtaq v. Secretary, Ministry of Defence and Hussain v. Secretary, Ministry of Defence, C.A. Nos. 718 & 1366 of 2007 (Pak. Apr. 1, 2015), can be found here. Yes, it does seem that the court took eight years to decide these cases (with a seven-page unanimous opinion -- roughly one page per year). From the standpoint of the petitioners, who face execution, the passage of time is a good thing. From the standpoint of the reasonably prompt administration of appellate justice, not so much.

Legislative proposal for reform of boards for correction of records

Private practitioner Raymond J. Toney has posted this analysis on Jurist of S. 1130, The Legal Justice for Servicemembers Act proposed by Sens. Barbara Boxer, Ron Wyden and Ed Markey. Here's an excerpt relating to the record-correction provisions (he promises a follow-on concerning the whistleblower provisions):

Key findings from the 1996 DoD Report and FOIA requests (on file with the author) include: (1) BCMR members serve voluntarily on a part-time basis in addition to their full-time employment with the given military department; (2) BCMR members receive little meaningful training prior to or during their board service; (3) BCMR members are not required to, and typically do not, review actual application materials; (4) BCMR staff prepare recommended decisions which voting members almost invariably accept; (5) on average Army and Navy BCMR members spend less than five minutes on each application and (6) personal appearance hearings are a rarity.

Most disturbing, however, are the measures taken by the staff of the Army, Navy, and Coast Guard BCMRs to keep applicants and their submissions away from actual voting members. Only the Air Force requires its members to review applications in advance of decisional meetings. As the Navy has noted: 

Generally the Board members do not prepare in any way for the applications that they will be called upon to decide during their regularly scheduled meetings. Simply put they do not see or have any knowledge of the cases they will decide before they meet.

That approach, shared by the Army and Coast Guard BCMRs, results in the complete dependence by BCMR members on the staff who prepare and present applications. Without personally reviewing all applications, BCMR members cannot know if staff members have accurately and fairly presented the facts and law of a case, and they often do not. In the case of the Navy BCMR, staff also can serve as voting board members, and often do.

An information sheet obtained from the Army BCMR through FOIA purports to prepare new members for their first board meeting, explaining:

There are usually about 90 cases divided into three stacks by potential decision - Grant, Partial Grant, and Deny. Many Board members choose to review the grant cases first as [a] method for getting warmed up...Cases range in sizes from 5-10 pages up to a wrapped bundle with several folders of 30-40 pages each. In the beginning, take a few minutes to review the case. As you become familiar with cases you will know exactly where you need to begin reviewing.

The Board members then are instructed to initial their vote on each case. “It is the Chair’s responsibility to review each case for the two board member’s vote initials, initial the Chair’s final vote and sign each case to complete the process.” This strongly indicates that the three board members do not convene in a traditional sense, discuss each case, vote on the case just discussed, and then move to the next. Rather, each member goes through the stack of cases initialing his or her decisions. According to the Army: 

If you come across a decision on a case that you may not agree with, you can do two things. The first is to bring up the case and summarize the point of disagreement orally to the other two Board members, or tell the Chair of the Board that you believe the case needs further review and discussion and either it hand it to the Chairman or put it aside where it won’t be mixed in with the other cases.

Board member discussion of a case thus is called for only where a member disagrees with a recommended decision of the staff.

Many applications to the BCMRs raise issues of credibility, which in other adjudicative contexts are resolved through witness testimony. While Congress authorizes the BCMRs to hold personal appearance hearings, and applicants frequently request them, the BCMRs rarely do, even where highly material facts are disputed. The Navy BCMR has not held a hearing in over twenty years [PDF]. The Army held one hearing in a span of four years, while deciding over 36,000 applications during the same period.