Military unions: the view from South Africa

Pikkie Greeff

Former military lawyer Pikkie Greeff, who is National Secretary of the South African National Defence Union, wrote this fascinating op-ed a couple of months ago, shedding light on SANDU's view of its role. The whole piece is worth reading; here's an excerpt:

"The fact that one in three soldiers belongs to the military Union SANDU, which has a fierce human rights protection record and a reputation for not taking cover on matters of national concern, says a lot about the collective awareness of Constitutional rights and obligations among soldiers. Unlawful deployments which are at odds with the Constitution will simply not be tolerated by the very union of soldiers themselves. While on this topic, let me state clearly (as many have asked me about it) - SANDU does not opine on the merits of a deployment decision. It is not the mandate of a military Union to question the merits of an operational decision. SANDU will, however, fiercely fight against a procedurally unlawful decision to deploy because that directly places soldiers on the ground at risk of legal liability and flouts the Constitutional order. SANDU will also vehemently defend the concerns of soldiers such as equipment malfunction or ration shortages whilst they are deployed."

New chief judge at U.S. Court of Appeals for the Armed Forces

Hon. Charles E. "Chip" Erdmann

Judge Charles E. "Chip" Erdmann will become the 12th chief judge of the U.S. Court of Appeals for the Armed Forces when Chief Judge James E. Baker's term expires (today). He will be chief for two years, after which Judge Scott W. Stucky will move to the center chair.

The confirmation process as leverage

Sen. Kirsten E. Gillibrand

Roll Call reports here that Sen. Kirsten E. Gillibrand (D.-NY) has lifted her anonymous hold on the nomination of Gen. Joseph F. Dunford, Jr., USMC, to be chairman of the Joint Chiefs of Staff. The bone of contention had to do with access to records relating to sexual assault at each service's largest base and at four training commands. Excerpt:

“I’m very grateful for Secretary [Ashton B.] Carter’s leadership and his determination to root out sexual violence,” said Gillibrand, who has publicly argued with military leaders and defense officials over her efforts to take the decision for prosecuting sexual assault and other major crimes out of the chain of command. 

Gillibrand’s 2014 report involved a review of 107 case files that shed further light on the “true scope of sexual violence in military communities, including two large but overlooked segments of the military population — military spouses, and civilian women living near military bases,” according to that report. 

Those documents, she said in her report, suggest spouses and other civilians are particularly vulnerable. The military justice system, she wrote, “continues to struggle to provide justice.” 

The updated report will also include information on training bases. 

“This is an issue that we continue to fail at and we need more information to understand the whole depth and expanse of the problem,” she said Wednesday. “Reviewing documents and actually understanding what happens in these cases is an excellent first step to understanding how to solve the problem.”

Sen. Gillibrand will be supporting Gen. Dunford's confirmation. 

FY16 budget for U.S. Court of Appeals for the Armed Forces

The FY2016 budget estimate for the U.S. Court of Appeals for the Armed Forces is online and available here. Bottom line: $14,078,000. The Senate Appropriations Committee endorsed that estimate in June in this report (p. 58).

John E. Sparks to be nominated to U.S. Court of Appeals for the Armed Forces

President Obama has announced his intention to nominate John E. Sparks to the U.S. Court of Appeals for the Armed Forces. According to the White House announcement:

John E. Sparks is the Commissioner to the Chief Judge of the United States Court of Appeals for the Armed Forces, a position he has held since 2000. Prior to this, Mr. Sparks was Principal Deputy General Counsel of the Navy from 1999 to 2000 and Special Assistant to the Secretary of Agriculture from 1998 to 1999. From 1996 to 1998, Mr. Sparks was a Deputy Legal Advisor for the National Security Council. He served as Military Assistant to the General Counsel at the Department of the Navy from 1994 to 1996 and as a Military Judge at Camp Lejeune, North Carolina from 1991 to 1994. Mr. Sparks served as military defense counsel, military prosecutor, and Chief Legal Assistance Officer from 1986 to 1991, and held various positions as an infantry officer in the U.S. Marine Corps from 1976 to 1986. He retired from the U.S. Marine Corps in 1998. Mr. Sparks received a B.S. from the United States Naval Academy [1976] and a J.D. from the University of Connecticut [1986].

If confirmed, Mr. Sparks will fill the seat currently held by Chief Judge James E. Baker, who also served in the Marine Corps and at the National Security Council, and whose term expires tomorrow.

Not since Robinson O. Everett was named to the court in 1980 has someone with service as a commissioner been named to the bench. It is not unheard of for a new judge to succeed the judge for whom he or she clerked. Justice Harry A. Blackmun clerked for and later succeeded Judge John B. Sanborn, Jr. of the U.S. Court of Appeals for the Eighth Circuit. Chief Justice John G. Roberts, Jr. clerked for Justice (as he then was) William H. Rehnquist, whom he succeeded. In 1961 President John F. Kennedy named James R. Browning, Clerk of the U.S. Supreme Court, to the U.S. Court of Appeals for the Ninth Circuit. At age 36, Horace Gray went from Reporter of Decisions of the Supreme Judicial Court of Massachusetts to a seat on that court, from which President Chester A. Arthur named him to the U.S. Supreme Court. No instances come to mind, however, of a person making the transition directly from law clerk to federal judge.

Chief Judge Baker will be succeeded by Judge Charles E. "Chip" Erdmann, whose term expires in two years.

Groups request IACHR thematic hearing on sexual violence in U.S. armed forces

Cornell Law School's Avon Center for Women and Justice and Global Gender Justice Clinic, the American Civil Liberties Union, Human Rights Watch, the Service Women's Action Network, and the editor, have submitted to the Organization of American States' Inter-American Commission on Human Rights a request for a thematic hearing on the lack of access to justice for survivors of sexual violence in the U.S. military. The request can be found here. The problems that flow from vesting prosecutorial discretion in commanders are addressed on pp. 4-5.

Black Tot Day tomorrow

Arrrhh. Tomorrow be Black Tot Day, ye 45th anniversarie of ye ende of ye Royal Navy rum ration. Details here, thanks to Pusser's Rum (and with h/t to Colonel Dwight H. Sullivan, USMCR (Ret)). Readers are encouraged to observe this sad day with appropriate ceremonie, such as listening to a D'Oyly Carte Opera Company performance of HMS Pinafore, followed by or accompanyinge ye onloading of hazardous liquids in bulke.

The floggings will continue until the recruiters make their quotas

One of the toughest, most important, and most thankless assignments that can fall to a member of the military is recruiting: just ask a recruiter. Consider this case from Ukraine, where a regional recruiting chief is on trial for failing to make his numbers. Excerpt:

. . . Here in the city of Mykolaiv in southern Ukraine Military enlistment chief Andriy Prihodchenko is facing ten days in jail because, according to the court, during Ukraine's 5th wave of conscription, his region recruited only 64% of the number of men it was supposed to. 

Outside the court, supporters of the accused gather. They believe Prihodchenko, after just four months in the job, is being made a scapegoat for low recruitment figrues across the board. 

Antonina Galkina, activist: "These accusations are trying to dicredit him. Here in the Mykolaiv region I'm definitely not the only one who hasn't heard about any other cases against enlistment officers." 

Prihodchenko admits - the five wave of mobilisation was not fully completed. But, he says, the problem wasn't only down to his department. 

Andriy Prihodchenko, recruitment officer: "No one is taking any responsibility for not fulfilling their duties. As far as I know I'm not the only one, there are a number of enlistment officers who haven't done it. And no one has been punished for it." 

The prosecutors hit back - they admit that recrutiment across the region was bad but in Prihodchenko's district the numbers were lowest of all. 

Meanwhile Prihodchenko's superiors have come out in his defense - asking the court to drop the case, pointing to his military honours and to the fact that in the current, sixth wave of mobilisation - his recruitment office is among the best - 5th out of 23 in the region. 

The case highlights tensions over conscription in Ukraine for a conflict the government refuses to officially call a war. Fighting has raged for more than a year in east Ukraine and over 6,000 people have lost their lives. 

Prihodchenko's fate hangs in the balance - the court is in reccess to collect more evidence.

One wonders what the charge is. Dereliction? If so, what's the proof, other than not making quota? 

And why is this case in a military court?

Oleh Sentsov, a Ukrainian film director is on trial with another man in a Russian military court in Rostov-on-Don on charges of terrorism related to Russia's seizure of Crimea from Ukraine. Two other men have already been convicted. Details here. Why are these cases being tried in a military court?

Why is this case in a military court?

A Lebanese woman who was previously married to ISIS leader Abu Bakr al-Baghdadi, has been held for months, with her four young children, in a Lebanese security services prison. She is accused of being a member of an armed terrorist organization plotting violence. Details here. Why isn't the case in a civilian court?

Rather than generate a separate post, this is as good a place as any to mention yet another case tried by the Lebanese military court. Details here. The past and future charges include some -- italicized here -- that should raise eyebrows:

A judicial source told The Daily Star that [Omar Bakri] Fustoq’s latest sentence was over “belonging to a terrorist group and spreading messages on social media that describe the president as a criminal and the Army troops, lawmakers and judges as disbelievers.” 

He was also convicted of “recruiting militants to fight in Syria and Iraq and inciting sectarian tension.” 

His first case, in which he was also sentenced to three years last April, was over adopting an extremist jihadi ideology, inciting attacks against the Army and encouraging the formation of an Islamic emirate in Lebanon. 

The two sentences will not be combined, the source explained. Fustoq is yet to be judged in a third case over defaming security forces dating back to 2010, and he will only serve the longest of the three sentences.

(Emphases added.)

Sexual misconduct in the Canadian Forces

The military culture is an old one, and it changes slowly. Its attitude towards sexual misconduct will change slowly as well. The goal here is not to put more soldiers behind bars. It’s to create a workplace climate where sexual assaults are seen as wholly unacceptable — even in cases which nobody ever sends up the chain of command.

Steve Sullivan (former president of the Canadian Resource Centre for Victims of Crime; first Federal Ombudsman for Victims of Crime; executive director of Ottawa Victim Services), in this iPolitics op-ed

Speaking of mission creep

Speaking of mission creep, consider this suggestion from Dr. Atta-ur-Rahman to expand the jurisdiction of Pakistan's controversial military courts (whose fate lies in the hands of the Supreme Court):

The Supreme Court has alas still not permitted the military courts to operate with the result that the terrorists continue to escape unharmed. What our honourable judges need to understand is that there is one thing which is far more important than even our constitution and the laws made under it – the basic right of a human being to a decent life with peace, honour and dignity. This is laid out in the spirit of our constitution and should be the overriding consideration by our Supreme Court and high court judges in the fight against corruption and terror. The existence of Pakistan depends on their taking this view.

So it is vitally important for the Supreme Court of Pakistan at this critical juncture of our history to step in aggressively and give a free hand to our armed forces so that military courts can try and punish not only the terrorists but also those involved in ‘financial terrorism’ – the massive corruption that funds this terrorism. Then, and only then, can a new era of a prosperous Pakistan begin and we can embark on a road to nation building by establishing a strong knowledge economy. . . .

(Emphasis supplied.) 

A new era?

Twice decorated by the Governor General of Canada, Commander in Chief of the Canadian Armed Forces (CAF), for his work in Afghanistan and a rising star in the CAF, Lieutenant-Colonel (LCol) Mason Stalker is now facing 10 charges of sexual assaults and sexual exploitation. The assaults were committed over a span of 9 years (1998-2007) on a male Army cadet of whom he was the mentor.

Charges were laid under the Criminal Code of Canada rather than the National Defence Act and the prosecution will take place before civilian tribunals where the accused, if he so wishes, will be entitled to a trial by jury rather than a trial before a panel of five members of the military. Prior to the somewhat surreptitious legislative change in 1998, military tribunals had no jurisdiction over sexual crimes committed in Canada. Sexual offences were investigated by the civilian police, prosecuted by the Attorney General and tried by civilian tribunals.

This prosecution before a civilian tribunal is certainly good news for the victims  of such heinous crimes who do not trust the military police and the military justice system as a whole.  Moreover, a recently enacted Bill of Rights for Victims of Crimes, C.C. 2015, c. 13 provides clear statutory rights to information, protection, participation and restitution at the federal level for victims of crimes (and their families).  However, subsection 18(3) of this Bill excludes victims of crimes that are investigated or proceeded under the Code of Service Discipline which is another powerful reason why such sexual offences should be investigated and prosecuted before civilian authorities.

Is this the beginning  of a new era, at least a return to the situation which prevailed before the 1998 legislative change? Actually the issue is one broader than simply the return of the investigation and prosecution of sexual crimes to the civilian justice system. Indeed, as noted earlier,  all ordinary criminal law offences should  be tried by civilian courts. This is an issue which is before the Supreme Court of Canada in the Moriarity case heard in May and taken under reserve.

The  Criminal Code of Canada was enacted to ensure protection of the public. Under the Canadian Constitution the responsibility for the enforcement of the criminal law has been conferred upon the provinces and the civilian justice system. It is fair to say that, for various reasons some of which totally unacceptable, the military justice system in the case of LCol Stalker and of sexual crimes in general has failed to ensure protection of the victims and the public.

Persons prosecuted before military tribunals are deprived of a number of rights they would enjoy if they were prosecuted before civilian tribunals, especially the right to a jury trial. Over the years the concept of discipline has been used to justify prosecutions before military tribunals for crimes which were a serious threat to the public and which should have been prosecuted before and tried by civilian tribunals. Too often, as it appears clearly in relation to sexual crimes, it has favoured in practice a policy ranging from laxity to cover-up and immunity from prosecution.

General Jon Vance, the new Chief of the Defense Staff, clearly stated publicly that zero tolerance in matters of sexual crimes is now the norm. He has to be applauded for taking this stance. However this will be effective only if the investigation and prosecution of such crimes are returned to the civilian justice system. Now what about other Criminal Code offences? These crimes are a threat to the general public and the general public is entitled to the legal protection and guarantees offered by the civilian justice system. Should they not be prosecuted before the civilian justice system? It will be interesting to see what the Supreme Court of Canada will do in this respect and in view of every citizen’s constitutional right to equality of protection and benefit of the law.

Extortion and impunity in Côte d'Ivoire

Human Rights Watch has issued this depressing report on roadside extortion by security forces in Côte d'Ivoire. It offers these comments on the administration of justice by the military court:

Ultimately, deterring checkpoint extortion will require criminal sanctions against violators, particularly commanders and officers who are implicated. The military justice system, however, which has jurisdiction over the army, police, and gendarmes, is severely under-resourced, with only one military tribunal in Abidjan for the whole country. The tribunal, which is focusing on cases related to the post-election crisis, had by July failed to adjudicate any of the dozens of extortion cases the anti-racket unit had referred to it in 2015. 

Furthermore, several legal experts said there was a need for comprehensive reform of the military justice system. They cited in particular the need to address the tribunal’s lack of independence from the ministers of interior and defense, who must give permission before a prosecution or trial can begin. 

The military tribunal’s jurisdiction is also currently too broad. Under the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, issued by the African Commission on Human & Peoples’ Rights, the jurisdiction of military courts should be limited to military personnel and to strictly military issues and should not extend to the police. 

In the absence of comprehensive reform of the military justice system, and given the limited resources of the anti-racket unit and military tribunal, they should consider targeting their investigations and prosecutions against those most responsible for extortion, particularly high and mid-ranking commanders. The head of the military tribunal, Commissioner Ange Kessy, told Human Rights Watch that commanders implicated in extortion would be prosecuted: “Commanders will be tried if their agents commit extortion. It’s not possible that they don’t know what their troops are doing. A good leader knows what his troops are doing.” 

So far, however, the anti-racket unit has not had success in convincing those caught at checkpoints to inform on their superiors, with an officer in the anti-racket unit saying, “the racketeers we catch will never implicate anyone higher.” The officer attributes this to “a climate of impunity,” in which, “agents think that, even if they say something, their leaders will never be punished.” The anti-racket unit is instead compiling reports on commanders who repeatedly fail to sanction instances of extortion within their units, and hopes that this will ultimately result in disciplinary action against those commanders.

Here are HRW's recommendations:

Mission creep and military justice

The Alaska Dispatch News has this story:

A U.S. Coast Guard petty officer acquitted of state child sex abuse charges in 2013 has been convicted of perjury and stalking after a court martial in Kodiak. 

Petty Officer 2nd Class John Blackman, previously of Soldotna, was found guilty of violating two articles of the Uniform Code of Military Justice.

*   *   * 

Blackman lied during a child custody hearing, leading to the perjury charge, [Coast Guard spokesman Kip] Wadlow said. As for the circumstances surrounding the stalking charge, the spokesperson said he didn’t have additional information. 

It’s unclear whether the case is tied to the child sex abuse case in which Blackman was accused of beating and sexually abusing a 4-year-old boy. The Coast Guard has declined to say whether there is a connection.

Blackman originally faced seven charges, some of which included multiple specifications, the military’s version of criminal counts. 

The charges say he asked someone to follow a woman without her consent and he lied to Coast Guard investigators about police officers quitting over the state case against him.

The usual questions: why was this case being tried in a court-martial? Was it a second bite at the apple? Trial by Coast Guard court-martial for perjury in a state courtroom? Really? Why no clarity on whether the case involved the same child sex abuse of which PO2 Blackman had previously been acquitted in the state case?

Honk if you think this is a misuse of the military justice system.

The Weirick's post on the burning bodies incident

LtCol James W. Weirick, USMC (Ret)

The Weirick (a retired Marine Corps lieutenant colonel judge advocate) has posted this story about an incident in which bodies were burned by Marines in Iraq in 2004. One hopes the complete investigation is made available. If the involved Marines acted out of necessity, the Weirick argues, their conduct should not be disavowed. Watch this space.

Military law training needs noted in Angola

The Angola Press has this report on training needs for the military justice system:

The Chief Judge of the Supreme Military Court, General António dos Santos Neto "Patónio," Monday in Luanda said that the training of staff of the Angolan Armed Forces, at all levels, is a priority of the institution that he represents and the Military Prosecutor. 

Speaking at the opening ceremony of workshop on criminal procedure and criminal law appeal, the official said the Supreme Military Court cannot fail to pay attention to this mission. 

The official advocated the need to provide the judges systematically with training activities. He said that these trainings should be confined to the branch of legal sciences and also the technologies that today enable the insertion of the man in the so called world of globalization.

The chief judge of the Supreme Military Court stressed that these issues require them to do a legal analysis of the decisions and guidelines of the lower courts. 

The Constitution of the Republic of Angola and its demands of modernity, whether in relation to current law (under Article 239) and in the near future desirable and, to some extent, one can already anticipate other objective of the training program.

New JAG in New Zealand

The New Zealand Defence Force has a new Judge Advocate General, according to this report:

Kevin Riordan ONZM has been appointed Judge Advocate General of the Armed Forces, Attorney-General Christopher Finlayson QC announced today. 

Mr Riordan has been Deputy Judge Advocate General and Deputy Chief Judge of the Court Martial since October 2013. He takes over from Christopher Hodson QC who is retiring. 

The Judge Advocate General is responsible for ensuring the proper administration of armed forces law. Those responsibilities include investigating complaints by the members of the armed forces, appointing judge advocates to sit in courts-martial and considering and reporting on the proceedings of courts-martial. 

With the appointment comes appointment as Chief Judge of the Court Martial. 

Mr Riordan will take up his appointments on 4 August 2015.

More on the reform of military jurisdiction in Colombia

Pres. Juan Manuel Santos

Colombian President Juan Manuel Santos has just approved the law which restructures military criminal justice and creates a special body to assist the Prosecutor as well as a Technical Investigations Corps, both of which will be dedicated exclusively to supporting investigations of persons in uniform.

These bodies will be autonomous and will not be dependent on the institutional chain of command. Each  investigation will be independent in order to guarantee a transparent procedure.

Article 22 of the new law provides that the Attorney General of Military and Police Crime will be selected from a list of candidates by the President (who constitutionally is the Commander in Chief of the Armed Forces) for a term of four years that cannot be extended.

Some critics have commented on the lack of independence of this jurisdiction given that the Presidency has been granted the power to designate whom it investigates. It has been criticized as "an arm of the Executive and is not independent because its components are in the armed forces and no one is going to want to fight with one's superior."

The prosecutors who litigate before the Superior Military and Police Tribunal are dependent on the Attorney General of Military and Police, but they will also be elected for eight year terms by the President.  The Government still has to regulate how candidates will be chosen for eligibility, but this is still being worked on.

The specialized and regular military and police courts have been revived and will function "throughout the national territory" and will be designated by the head of this jurisdiction.  These courts will have jurisdiction over cases related to military and police service, which means that cases involving violations of human rights will be expressly excluded, specifically, cases involving "false positives."

There will also be a Superior Military and Police Court will serve as the highest instance of jurisdiction and which will be comprised of magistrates, also selected by the President, for eight year terms that cannot be extended.

With the President's signature, this law has entered into force, but it is clear that there will be claims that it is unconstitutional.  The Armed Forces will defend the need for a separate jurisdiction and the debate will be opened anew.

Pay-increase demonstration = sedition

The Salvadoran armed forces are prosecuting 14 soldiers for sedition in peacetime for having participated in a demonstration seeking higher pay. They had demanded the same bonus that the police recently received. Details here (in Spanish).

Military justice changes in Colombia

El Tiempo reports (rough translation):

Within months Colombia will have a prosecutor and Technical Investigations Corps (CTI) dedicated exclusively to military and police criminal justice, with the possibility that non-uniformed civilians will be involved in some of these charges.

President Juan Manuel Santos has just approved a law that shakes up the structure of this jurisdiction and, among other things, makes it an autonomous body that does not depend on hierarchical institutional control, and which -- at least in theory -- seeks to ensure independence in carrying out investigations.

The intent of this rule, which is already part of the law, is to ensure that the military justice system's procedures work and, somehow, to turn the page on the scandals that have occurred.

That case from Armenia

Remember the case from Armenia, where Valeri Permyakov, a Russian soldier stationed at a base in Armenia, is alleged to have murdered seven local nationals? It had been announced that he would, at last, be tried by Armenia rather than Russia, but the Armenian authorities have still not been permitted even to interview him. Indeed, he hasn't been seen, so there's no way of know if he is even alive, or of sound mind. A variety of theories have been floated, including that he was off foraging for food due to shortages at there base. In this connection, Colonel Denis Zorin, deputy chief of food supply for the Southern Military Region, has been charged with stealing $7.8 million in supplies from the Russian air base in Armenia. It is also not known whether Private Permyakov acted alone or with others. This article also points out that there is a conflict between the Russian-Armenian Status of Forces Agreement and the provision of the Russian Constitution that forbids extradition of Russian citizens to third countries. That argument seems to be without merit since the constitutional ban concerns extradition from Russian territory, and hence would not apply to rendition under the SOFA.

Servicemembers Self-Defense Act of 2015

In response to the recent fatal attack on military installations in Chattanooga, Tennessee, Kentucky Republican Sen. (and presidential candidate) Rand Paul has introduced the Servicemembers Self-Defense Act of 2015. It would, among other things, amend the General Article (article 134, UCMJ, 10 U.S.C. § 934):

(1) by inserting ‘‘(a) IN GENERAL.—’’ before ‘‘Though not specifically mentioned’’; and

(2) by adding at the end the following new sub- section:

‘‘(b) POSSESSION OF A FIREARM.—The possession of a concealed or open carry firearm by a member of the armed forces subject to this chapter on a military installation, if lawful under the laws of the State in which the installation is located, is not an offense under this section.’’.

The Editor will leave the substantive wisdom of this and other provisions of Sen. Paul's bill for others to evaluate, but it does seem unfortunate to perform this highly particularized surgery on what is supposed to be a general provision of military law. The Uniform Code of Military Justice needs to be changed; tampering with Article 134 to address this single issue is scarcely the way to do it.

Military justice training program offered in India

The Times of India has this report on a weeklong military law and justice training program being offered by a law school in Gandhinagar, Gujarat. Excerpt:

Gujarat National Law University (GNLU) will organize a first-of- its-kind training program on 'Military Law and Justice' from July 26 to August 1. The training will focus on Indian military laws, concepts of justice, Indian Constitution and Armed Forces, court-martial: system and procedure at trial, comparative practice: the British and US military justice System, critical appraisal and analysis and future reforms.

According to the program brochure, participation is limited to Indian citizens who hold a college degree and are officers on active duty or probation.

Impunity and the Armed Forces (Special Powers) Act

If you were wondering about whether the world is shrinking, consider this editorial in The New York Times, concerning India's Armed Forces (Special Powers) Act. Excerpt:

The act, which can be activated by the federal government or the states, gives soldiers wide powers to kill, arrest, search and detain. It also grants them civil immunity from prosecution and punishment. India’s army, which is empowered to try soldiers in military courts for crimes against civilians, has rarely done so. The result is a shocking incidence of rapes, murders, torture, summary detention and disappearances of civilians in areas where the law applies. 

This month, Amnesty International published a damning report on abuses in Jammu and Kashmir, and called again for an end to the law. Indian legal authorities and human rights groups, as well as international groups and the United Nations, have urged repeal. In 2005, following the rape and murder of a woman in Manipur, a government-appointed committee said the law should be amended or replaced “in consonance with the obligations of the government towards protection of Human Rights.” In 2008, Human Rights Watch published a major report on Afspa calling for repeal. In 2012, the United Nations said the act “clearly violates international law.” The year after, a former chief justice of India, J.S. Verma, chairman of a committee charged with reviewing Indian law after the brutal rape of a student in New Delhi, said there was an “imminent need” to assess continued use of the law.

The Times recommends repealing the law, which has become increasingly out of step with contemporary human rights and due process standards.

Operation HONOUR. Stamp out sexual harassment: "It must stop now".

The Chief of the Defence Staff Staff for Canada (General Jonathan Vance) has issued a General Order to all members of the military forces.

Any form of harmful sexual behaviour undermines who we are, is a threat to morale, is a threat to operational readiness and is a threat to this institution. It stops now.

Leaders do the right thing for the right reason at the right time! Not surprisingly, therefore, General Vance has gone even further.

"I will not engage in any discussion or debate about the degree or severity of sexual misconduct in the Canadian Armed Forces. 

"It does not matter, for even a single incident is too many, and even unintentional harm or offence is unacceptable. This is a serious matter."

"I have summoned all the General and Flag Officers and my [Component and Operations Commands] commanders . . , along with their chief warrant officers, to a one-day, single issue CDS Commanders' Seminar in August to lay out the way ahead."

Vance is a change agent!

This is generalship at it best.  General Vance's determination to stamp out sexual misconduct in the ranks is the first manifest, unequivocal and robust stand taken by an incumbent of the Office of the Chief of the Defence Staff.

Much remains to be done but this is a giant first step.

Military justice caseload in Azerbaijan

Lieutenant-General of Justice Khanlar Valiyev, the chief military prosecutor of Azerbaijan, has given a semi-annual report on the status of the military justice docket. Here is APA's account:

The investigation of 25 criminal cases against 43 people who have committed acts of corruption in Armed Forces of Azerbaijan has been completed and submitted to the military courts for consideration.

Military Prosecutor of Azerbaijan, Lieutenant-General of Justice Khanlar Valiyev made the remarks on Friday during the board meeting held at the Republican Military Prosecutor's Office on the outcomes of the first half of 2015 and tasks ahead.

It was noted that in the first half of 2015, military prosecuting agencies identified a number of gravest and complex crimes, and the investigation of some was completed.

During the reporting period a number of cases involving the embezzlement of state property on a large scale have been investigated and perpetrators brought to justice. During the investigation the payment of 82.3 percent of the material damage caused to individuals and legal entities as a result of the crimes committed were provided.

1064 offences were detected in the activities of the investigation agencies as a result of 63 inspections carried out in the first half of this year. 98 submissions were made to eliminate the causes and conditions of offences, 125 persons were warned, 30 criminal proceedings were launched, and 76 written instructions were submitted on the proceedings conducted by investigation agencies. As a result of consideration of the submissions made by the prosecutor, 203 persons were brought to disciplinary responsibility.

78 trials were held to increase the role of court decisions and judgments for prevention of crimes, and avoid further crimes.

SANDF v. SANDU: expensive stalemate

The South African National Defence Force and the South African National Defence Union remain locked in a stalemate over a demonstration some six years ago. Efforts to discipline or discharge the offenders have come to naught thus far. This report tells the tale. Excerpts:

“The legal representatives of the members through the unions, they will always challenge and take us to court. Take us to this court, interdict this, take us to that court, challenge this and challenge this. That’s the ma[i]n contribution to the delay as we stand now,” says SANDF spokesman Brigadier General Xolani Mabanga. 

Mabanga says the defence force is in the process of conducting “administrative discharge” processes, meaning the military still want the soldiers out. 

“There are things that are not accepted. They may not be written as a rule or as a law but just by practice they are not accepted,” Mabanga explains. 

He adds that the defence force is still in disagreement with a Constitutional Court ruling that allows soldiers to strike and to belong to unions. 

“It is not accepted of the members of the SA National Defence Force to strike. They may have a legal right to strike, they may have a constitutional right to strike but it is not an accepted practice that members serving in the South African National Defence Force go to strike,” he said. 

But the union says the defence force is to blame. 

“The question before the court irrespective of what transpired on the day in question is the procedure that the defence force has followed from day one up to now. The procedure was invalid, illegal and unconstitutional," says former SANDU president Mosima Mosima.

Military court observers proposed in Pakistan

The new head of the National Commission on Human Rights in Pakistan has proposed that the commission have observers sit in on proceedings of the military courts. Details here.

Seems like a half-measure at best. Why not public trials?

UN human rights official resigns over mishandling of child sexual assault allegations

The New York Times reports: The senior-most United Nations official to have been informed of allegations of child sex abuse by French soldiers in Central African Republic last year, who took no action at the time, has resigned from her post, United Nations officials confirmed on Wednesday.

Flavia Pansieri, the deputy high commissioner for human rights, based in Geneva, is stepping down “for health reasons[.]”

It appears a report about the investigation was "leaked" by a Mr. Kompass to the French authorities before victim names were redacted.

Overall, there is an atmosphere of confusion, finger-pointing, and denial about when, to whom, and how complaints of serious sexual misconduct were reported. This is not a positive reflection of UN human rights activities.

The sexual abuse allegations brought new scrutiny to Mr. Kompass’ role, as well as on his superiors. Secretary-General Ban Ki-moon appointed a panel to review how the United Nations system as a whole handles allegations of sexual abuse against peacekeepers.

The high commissioner for human rights, Zeid Ra’ad al-Hussein, is deeply familiar with the problems that the organization faces. In a previous role, Mr. al-Hussein pressed the United Nations to improve how it handles sexual abuse allegations in its peacekeeping missions.

Data and debate

If the military justice system is to remain effective and indeed serve as an exemplar of military discipline and justice, it is important that change come from an understanding of the theory and purpose behind the law as well as its history. An understanding of theory and purpose is all the more important because the executive branch does not keep consistent, accessible, and therefore meaningful statistics on the operation of the military justice system. This increases the risk that anecdote rather than empirical evidence will drive debate. . . .

Chief Judge James E. Baker, U.S. Court of Appeals for the Armed Forces

Foreword to  Francis A. Gilligan & Fredric I. Lederer,

Court-Martial Procedure (LexisNexis 4th ed. 2015)

Should CEO of the Canadian Bar Association (CBA) take on honorary military role?

 In its July 20, 2015 edition, LAW TIMES, a Thompson Reuters publication providing the latest news, analysis, and other developments in the Province of Ontario's legal scene, reports on concerns being voiced about the recent appointment of John Hoyles, the Chief Executive Officer of the Canadian Bar Association to an Honorary Colonel appointment within the Judge Advocate General Branch. 

A former President of the CBA and senior practitioner, Eugene Mehan, says that the appointment seriously compromises the CBA's ability to take positions on military justice issues.

"The problem is that the Canadian Bar Association, by making this honorary appointment, have basically taken themselves out of the game. They diminish their position whereby they can neither speak for nor against any position regarding military justice with credibility.”

However, David Bright, another senior practitioner who practises military law says he doesn’t see a problem with the appointment.

“I don’t see it as a conflict. I’m an honorary colonel at one of the air force bases [12 Air Maintenance Squadron, Sheerwater, Nova Scotia] here, which never caused a conflict problem for me. I defend without hesitation. It’s an honorary position and very much a PR position.”

As a quintessential national institution the Canadian military has been under the spotlight for its inability, if not unwillingness, to deal with the prevalence of inadequate sexual conduct by its members as well as the failure of its leadership to tackle this issue. The military justice system has also been open to much debate in the idea that it should become increasingly placed under civilian authority. However, up to now, the Canadian military justice system appears to be both impervious and very much recalcitrant to these developments. On the other hand, the CBA has been totally silent on all and any military law issues. It is now proper to ask whether having his CEO serve as Honorary Colonel of the military legal branch could actually undermine both the appearance and reality of the institutional independence and integrity of the CBA in respect to the current clamour for reforming the military justice system.

Got a bright idea?

The deadline for submission of the Military Justice Review Group's proposed changes to the Manual for Courts-Martial is September 15, 2015, so it's not too late to send in your ideas for changes. If you've been thinking about ways to improve U.S. military justice, this is your chance, but act fast because this bus is leaving.

Details can be found on the Review Group's website. If you do send in a suggestion, please post a comment here [real names only, please] so others can know about it and perhaps add their own thoughts.

Soldier tried by civilian court in Mexico

A Mexican soldier has been convicted by a civilian court in Mexico. Details here from La Crónica:

A district judge set a precedent in Nuevo Leon, sentencing to 18 years in prison a soldier who killed an innocent couple when he exchanged fire with an armed group in the municipality of Anahuac, about 200 kilometers north of Monterrey. 

This time the soldier was not tried by a military court. 

The president of Citizens in Support of Human Rights, AC (CADHAC), Consuelo Morales, reported that it was unprecedented in Nuevo Leon when cavalryman Juan Ortiz was sentenced by a non-military judge. 

Morales said that the district judge for criminal matters in Nuevo Leon, Eustasio Salinas Wolberg, found the suspect guilty of intentional manslaughter while acquitting soldiers Alain Joshua Reyes and Francisco Melendez, who also were involved in the 3 March 2010 incident. 

Rocio Elias Garza and her husband Juan Carlos Peña Chavarría were killed by soldiers in 2010 in Anahuac, when they left his job at a factory to pick up their children, but were caught in the gunfire. Peña Chavarría took cover in a vehicle and after the shooting the woman came to ask for help with her arms raised, but the soldiers fired at her legs. 

Consuelo Morales said the soldier admitted that he approached the victims and shot them in the head. 

For his part, Carlos Trevino, coordinator of the association's legal department, said the ruling will be appealed on the ground that this was an intentional homicide and would ask that the defendant be convicted of qualified homicide. . . . 

They are also appealing the acquittal of the other two soldiers, one of whom was accused of tampering with the crime scene and the other with altering his account of the events. [Rough Google translation]

Prosecutorial independence in Kenya

For readers who have been thinking about what a statute might look like that gave the disposition power to someone other than a military commander, consider this provision of the Kenya Defence Forces Act, 2012:

213.(1) There shall be a Director of Military Prosecutions in the Ministry responsible for Defence who shall be appointed by the Defence Council. 

(2) A person shall not be appointed as the Director of Military Prosecutions unless the person is—
(a) an officer of at least the rank of Brigadier; and
(b) an advocate of the High Court of Kenya of not less than ten years standing. 

(3) A person appointed as the Director of Military Prosecutions under this section shall––
(a) have power to direct military police to investigate any information or allegation of criminal conduct, and a military police shall comply with any such direction;

(b) exercise powers of prosecution under this Act and shall undertake prosecutions at a court martial against any person subject to this Act in respect of any alleged offence under Part VI;
(c) have power with the permission of the Judge Advocate to discontinue any proceedings before a court martial at any stage before summing up by Judge Advocate. 

(4) The Director of Military Prosecutions shall not discontinue proceedings before a court[] martial unless with the permission of the Judge Advocate.

(5) Except as provided for in this Act, the Director of Military Prosecutions shall not require the consent of any person or authority for prosecutions and, in the exercise of the powers or functions under subsection (3) of this section shall not be under the direction or control of any person or authority. 

(6) The office of the Director of Military Prosecutions shall be a separate office from that of the legal department in the Defence Forces or Ministry.

Thai military court in action

The Nation offers the following account of the administration of justice in Thailand's military courts:

The Bangkok Military Court granted bail again Tuesday to a woman accused of spreading a false rumour on social media -- claiming Prime Minister Prayut Chan-o-cha had transferred Bt10 billion to Singapore. 

Rinda Pareuchabut, 44, who has been charged with violating the Computer Act and causing public disobedience and panic, reported to the court after an initial 12 days of detention ended Tuesday. 

During her first period of detention, the court released her on Bt100,000 bail on the condition that she refrains from expressing political views, instigating unrest or leaving the country. 

Rinda said her spirit had been lifted to receive freedom. "It is better to fight from outside than inside because I can still see my dear children. This case will become an important lesson for me. I must live life more prudently and carefully. I think of my case as a blunder not a mistake,'' she said. 

Sasinant Thammanitnan, a lawyer from the Lawyers' Centre for Human Rights, who serves as Rinda's authorised legal adviser, said investigators asked the court to detain Rinda for the second 12 days of detention as they have yet to examine evidence and criminal records. 

The court approved the second 12 days of detention but released Rinda on Bt100,000 bail with the same conditions as the first detention period.

A hearing on a third period of detention is due on July 29.

Does Thailand really need to send people to jail for spreading false information (assuming it was false) on social media? Does it take a military court to try such a case? How long does it take to assemble the information needed for such a prosecution? 

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Slow justice for Indian naval officer

It is not uncommon for military forces to have a range of options for getting rid of personnel for suspected misconduct. Here is a story about an Indian naval officer who has waited 10 years for his day in court. Excerpt:

Kashyap Kumar was dismissed from service in October 2005 in exercise of the rarely used President's "pleasure doctrine" under Article 311 without facing a court-martial after his name surfaced in the Navy War Room leak case. He filed a writ petition in November 2005 challenging the decision.

He was named in the FIR after the CBI took over the probe but the agency did not charge sheet him for want of evidence.

* * * 

Kumar was dismissed under the Section 15 of the Navy Act wherein an accused official has no right to present his case or see the allegations that have been levelled against him.

The "pleasure doctrine" brings to mind article 4, UCMJ, which contemplates that the President can dismiss an officer -- but permits the officer to request a court-martial for name-clearing purposes.

10 U.S.C. § 804

ART. 4. DISMISSED OFFICER'S RIGHT TO TRIAL BY COURT-MARTIAL 

(a) If any commissioned officer, dismissed by order of the president, makes a written application for trial by court-martial setting forth under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. 

(b) If the President fails to convene a general court-martial within six months from the preparation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal order by the President a form of discharge authorized for administrative issue. 

(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances. 

(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.

The Indian process (or lack of it) also is reminiscent of the "Secretarial Letters of Censure" that can be issued in the U.S. Navy and are essentially impervious to judicial review.

Military lawyer is Britain's first female general

The British Army has appointed its first female general. Brigadier Susan Ridge will take over as Director General Army Legal Service (DGALS), a two-star post within the Adjutant General's Corps.* She joined the Army in 1992 following six years in private practice as a solicitor in Wales. Previously the Royal Air Force promoted Elaine West to Air Vice Marshal, the first female appointment to two-star rank in the British military.

Coverage of the appointment can be found here, here and here with a different approach taken here by legal tabloid Legal Cheek. 

*Brigadiers have not been classed as generals within the British Military since 1921.

Chief of the General Staff condemns sexual harassment

See no evil? Army opens its eyes to the problem. 

It’s not just in the United States military that has a problem it seems…the UK has commissioned a survey on levels of sexual harassment in the British Army and the results have not been easy reading.

Chief of the General Staff General Sir Nick Carter described the level of sexual harassment being faced by female soldiers is "totally unacceptable".

In a survey commissioned by the Army, almost 40% of servicewomen said they had received unwanted comments of a sexual nature in the past year. The report, based on a survey of 7,000 soldiers, found 13% of women had had "a particularly upsetting experience". About 3% of those who were very upset made a formal written complaint.

Nearly half did not make a formal complaint because they were concerned about the consequences, such as being labelled a troublemaker and the effect it might have on their career.

Sir Nick said he was "disappointed" by the figures. He told the BBC on 12th July 2015 "They do provide me with a baseline from which I can move forward and change the Army's culture". Sir Nick wanted the Army to be a "modern, inclusive" employer and the change would come from the top down, with the launch of a new code of leadership in September. He also said he would ensure the complaints process was "good and sound", so "all people feel they can complain if it is necessary to complain".

In July 2014, there were 15,780 women serving across the armed forces -- or 10% of the total number of personnel.

The Army-commissioned report found servicewomen were more likely to experience a range of "unwanted, targeted sexualised behaviours" than servicemen, with the exception of being sent sexually explicit material.

Junior soldiers were, in some cases, four times more likely than senior officers to experience the behaviours, the report said, and the most at-risk group was junior-ranking women.

Among the report's findings:

·         39% of women and 22% of men said they had received unwelcome comments about their appearance, body or sexual activities

·         33% of women and 19% of men said someone had made unwelcome attempts to talk to them about sexual matters

·         12% of women and 6% of men said someone had made unwelcome attempts to touch them

·         13% of women said they had had a "particularly upsetting experience"

·         61% said the incidents had occurred in their home base or training unit

·         62% said they had ignored the behaviour; 53% said they avoided the person responsible

·         It also found that 44% of respondents believed sexual harassment was a problem in some parts of the Army, but the majority were positive about how well the Army tried to prevent it and manage it when it did happen.

Service personnel asked for a more effective complaints system and stronger sanctions against those who sexually harassed others.

The report recommended introducing more transparency into the complaints and discipline process, and better training for senior staff.

"The Army may wish to consider introducing training to give individuals the skills, knowledge and confidence to manage unwanted behaviours themselves," it added.

The report found "generalised sexualised behaviours", such as the use of sexual swear words and sexual jokes, was a "common part of workplace culture and the Army is no exception" but the majority of personnel were unlikely to be offended.

Researchers posted 24,000 anonymous surveys to regular and reserve servicemen and women, and more than 7,000 were sent back -- a response rate of 30%. Focus groups were also conducted with 48 randomly-selected non-commissioned officers from different units.