Sunday, August 30, 2015

Low batting average for Sindh military trial recommendations

According to this Express Tribune article, the Sindh provincial government has recommended 74 cases for trial before Pakistan's new military courts, but only three have been approved by the Interior Ministry. What could be the possible explanation(s)?

  • the need for the military courts was not as great as claimed
  • the provincial authorities are recommending cases that either do not merit military court trial or that lack the requisite evidence
  • the Interior Ministry is moving too slowly
  • the Interior Ministry is applying too high an evidentiary standard in evaluating provincial recommendations (either in general or simply those from Sindh)
  • there has been a sudden dramatic improvement in the effectiveness of Sindh's civilian criminal and anti-terrorism courts
The article reports:
Replying to a question of the chief minister, [Home Secretary Mukhtiar] Soomro said, “Presently, we have scrutinised 10 cases in our legal committee, which has cleared eight cases including the attack on Justice Maqbool Baqar, Nishter Park blast, attack on four policemen, attack on Gulistan-e-Jauhar police station, sectarian murder in New Karachi and five other connected cases.”

[Chief Minister Qasim Ali] Shah directed the home secretary to scrutinise more cases because Chief of Army Staff General Raheel Sharif has already ordered the establishment of more military courts in Karachi.
This suggests another bullet point explanation for the paucity of cases referred for military court trial:
  •  insufficient number of military courts
Why is this reminiscent of moviedom's "build it and they will come"? Court of Dreams?

Saturday, August 29, 2015

Stories we're following

Brig. Gen. S.T. Ansell
Every once in a while it's useful to take stock and consider the changing list of stories that seem to be the most urgent. In no particular order, here are some of the salient issues currently on Global Military Justice Reform's radar:

  • Pakistan's military courts (to sunset in January 2017 unless the Constitution is amended again)
  • UN peacekeeper discipline in the Central African Republic and elsewhere
  • Sexual assault in the U.S. armed forces
  • Command-centric disposition power in the U.S.
  • Pending Canadian Supreme Court cases
  • Military court reform in Lebanon
  • Military Justice Review Group report (to be made public by the Pentagon -- but when?)
  • Chinese military justice reform
  • Colombian reform legislation under review by the Constitutional Court
  • Nigerian military justice in free-fall?
  • Agenda-setting by the UN's new special rapporteur on the independence of judges and lawyers (will military justice reform and the Decaux Principles be given priority?)
What have we overlooked? Please comment (real names only, please.)

ROK courts grapple with conscientious objection

The courts in South Korea seem to be in disarray about conscientious objection. The Supreme Court just upheld a Jehovah's Witness's jail sentence, but lower courts have repeatedly found conscientious objection to be a constitutional right. The Constitutional Court held in 2011 that there is no right to CO treatment, but now has the issue under review again, as this article notes. Watch this space.

Important military justice decision from the Armed Forces Tribunal

The Kolkata Bench of India's Armed Forces Tribunal has handed down a major military justice decision, concluding with some harsh words. Harneet Singh v. Union of India, OA No. 30/2013 (AFT Kolk. Aug. 21, 2015), arose in the Indian Navy. The accused, a commander, was charged with several offenses arising out of damage to twin-screw INS Agray's propellers. Commander Singh was the ship's commanding officer. A host of issues were presented on appeal, including the president's failure to recuse himself, the failure to afford Commander Singh the right to participate fully in the Board of Inquiry that preceded the court-martial, late changes in the charges, multipliciousness, imprecision in the charges, and a failure to explain a variety of trial rulings. One interesting issue concerned the fact that the convening authority detailed all of the members, even though the governing regulations seem to call for the president of the court-martial to select the other members of the court. Another issue arose because the accused's promotion to commander had been illegally vacated, and the requirements for trial of a commander are more stringent than those for trial of a lieutenant commander. The two-member bench's 90-page decision concludes:
101. Keeping in view the discussion made hereinabove to sum up –

(1) The applicant was not permitted to participate in BOI proceeding in utter disregard of principle of natural justice and regulation.

(2) No time was granted to him to the extent of 96 hours in pursuance of Regulation 167. The Regulation is mandatory and its violation amounts to violation of principle of natural justice and affect the right of the accuse to avail reasonable opportunity.

(3) The allegation that the Prosecutor and the President belong to the same establishment/unit which may result likelihood of bias has not been considered in the light of Prithi Pal Singh (supra) and Ranjeet Kumar (supra). Hon'ble Supreme Court held that minimum requirement of natural justice is that Court Martial proceedings must contain impartial persons acting fairly without bias. Likelihood of bias may be tested with reasonableness of the apprehension in that regard in the mind of party.

Friday, August 28, 2015

Bar challenge to 21st Amendment decision

The Lahore High Court Bar Association has filed a review petition challenging the Supreme Court's recent decision upholding the 21st Amendment that authorized military courts to try civilians in Pakistan. A few details appear here, but this seems a futile effort.

Postscript: This article from Dawn provides additional details. The pleading filed for the Lahore H.C. Bar seems to be in the nature of a petition for rehearing.

Femi Falana on Nigerian military justice

Femi Falana SAN
Femi Falana, a leading Nigerian attorney, has written this lengthy Premium Times analysis of the military justice system and human rights in that country. His recommendations:
i. To guarantee the independence and impartiality of military courts they should be headed by retired judges who will sit with other members appointed by the military authorities. This is only way to enhance discipline in the armed forces as the appellate courts have recently set aside not less that 80 percent of cases decided by courts-martial; 
ii. The confirmation of the findings of military courts should be dispensed with as it has frustrated convicted personnel from exercising the right of appeal to the Court of Appeal within the three months allowed by law; 
iii. Since every person charged with a criminal offence is entitled to be given adequate facilities by the State for the preparation of their defence, the prosecution should be compelled to file proof of evidence together with the charge. In other words, the witness statements of all prosecution witnesses and relevant documents should be made available to the defendants; 
iv. As every person charged with a criminal offence is entitled to legal representation even before making a statement in a police station, service personnel charged by their commanders with committing criminal offences or misconduct should be allowed to defend themselves in person or by legal practitioners of their choice; 
v. Since every defendant in a criminal trial is presumed innocent until the contrary is proved by the prosecution, military courts should respect the fundamental right of defendants to personal liberty by admitting them to bail in deserving cases, either conditionally or unconditionally; 
vi. The authorities of the Armed forces should sanction military personnel who violate the fundamental rights of the Nigerian people. The case of Ransome-Kuti v Attorney-General of the Federation (1985) 2 N.W.L.R.(Pt. 6) 211 was dismissed on the ground of rex peccare non facit (the king can do no wrong). But as the law has changed the military invasions of Odi in Bayelsa State, Zaki Biam in Benue State and Gbaramotu in Delta State, the Federal High Court awarded reparation of about N200 billion. Soldiers whose fundamental rights are violated are also entitled to demand for payment of damages. Thus, in Akeem [v]. Federal Republic of Nigeria the ECOWAS Court awarded N5 million in favour of a soldier for illegal detention in a military barracks. In Okereke v Rear Admiral Arogundade, the applica[]t[] was awarded N120 million damages by the Lagos high court for the violation of her fundamental right to dignity. To arrest the ugly development, the military personnel indicted by the courts should be sanctioned and made to pay a percentage of the damages awarded to victims of human rights violations.

Massive reshuffling in Turkish military justice

Turkey has made major changes in the assignments of military judges and prosecutors. According to this Hurriyet Daily News article:
The outgoing government of Turkey has initiated a major overhaul in military judiciary, with a decree also signed by President Recep Tayyip Erdoğan, changing the posts of 70 military judges and prosecutors. 
The decree, signed by Erdoğan, Prime Minister Ahmet Davutoğlu and Defense Minister Vecdi Gönül, went into force after being published in the Official Gazette earlier this week, daily Cumhuriyet reported Aug. 28. 
Accordingly, the chief prosecutor of the Military Supreme Court of Appeals, vice president of the Military Supreme Court of Appeals and president of 1st Chamber of the Military Supreme Court of Appeals have been replaced, while some members of the top military court have also been replaced. 
The decree changed the places of duty for a number of military judges and prosecutors as well as judicial counselors in the provincial commands of the Turkish Armed Forces (TSK).

Judge and Senior Col. Mehmet Yüzbaşıoğlu, who was president of a military court that charged retired Brigadier General Zeki Es for his alleged role in a mine blast in Turkey’s eastern province of Hakkari, which killed seven soldiers in 2009, was also replaced.

Military justice and the Guardia Civil

El Confidencial reports that the Unified Association of the Civil Guard is objecting to the fact that a member of the Guardia Civil is being charged with a military offense for "a discussion" with a superior officer. The Association points out that such a matter would be dealt with as a mere administrative violation for any other civil servant. Moreover, it contends that military justice may by law only be applied to the Guardia Civil in time of war, during a state of siege, in the course of military operations, or when Guardia personnel are integrated into the armed forces.

Thursday, August 27, 2015

Shameless effort to chill attorney dissent over Pakistan's military courts

The establishment of Military Courts was a landmark event in Pakistan’s war against terrorism. But unfortunately, some selfish members of legal fraternity, foreseeing decline in their cases, challenged the legality of these courts in Supreme Court. In a historical verdict, the highest judicial forum of the country has dismissed all the petitions against Military Courts and now they are set to punish the worst enemies of Pakistan and its people. As this impediment was removed, COAS General Raheel Sharif has confirmed the death sentences of seven terrorists who were convicted by the Military Courts. However, a few lawyers and civil society members are still conducting negative propaganda against Military Courts for their vested interests. . . .

*   *   *

The Military Courts are cornerstone of Pakistan’s legal victory on terrorists. Therefore, the negative propaganda against them must come to an end. We must strengthen our Security Forces by exhibiting strong resolve against terrorists on national level and National Action Plan is certainly a positive step in this direction. The hampering of its implementation by any means must be avoided as this will strengthen the hands of terrorists in deteriorating the law and order in the country. [Emphases added.]

From this op-ed by Iftikhar Hussain Jazib

Cases withdrawn from military courts

Three cases from Punjab are being withdrawn from Pakistan's new military courts, according to this report in Dawn. The number of accused in the three cases is unclear. The reasons given for the decision to transfer the cases to civilian anti-terrorism courts include the age of one of the accused, some of the accused are out on bail from the civilian courts, some of the interrogations were conducted by civilian law enforcement personnel, and, quite simply, insufficient evidence in some cases. One of the accused had already been executed and another had been killed.

The case of the missing case

There's a scandal brewing, ever so slowly, in Cameroon. Allegedly, billions of francs in military court expenditures have gone missing, and the investigation, first begun in 2013, is being slow-rolled. A new prosecutor has the case now, but she's not talking. Others say the holdup is related to concern about adversely affecting army morale at a time when the country has to fight Boko Haram militants. Details here (en français).

Wednesday, August 26, 2015

Show trial for Jehovah's Witness conscientious objector in Belarus

Belarus has enacted an Alternative Service Law, but the events described in this article do not offer cause for optimism. Excerpt:
Eleven days after the official publication in June of Belarus' first-ever Alternative Service Law, which takes effect from 1 July 2016, an investigator opened a criminal case against Jehovah's Witness conscientious objector Viktor Kalina. He faces punishment of up to two years' imprisonment if convicted of refusing military service on grounds of religious conscience. No court official in Brest was able to explain to Forum 18 News Service why the first hearing in his trial on 17 August was held not at the court but at Brest Military Conscription Office. Kalina likened it to a show trial as five more young men who chose not to go to the army were present at the hearing, and officials "decided to show them the consequences". However, the Head of Kalina's local Conscription Office, Valentin Abramov, insisted to Forum 18 that trials outside courts are "usual practices".

"Alarming gaps," says Prof. Vladeck

Prof. Steve Vladeck
Prof. (and Global Military Justice Reform contributor) Steve Vladeck has this excellent post on Just Security, under the title "The Alarming Gaps in Military Appellate Review." His explanation of "Why This Matters" is unanswerable.

Nigerian Army cases on review in civilian courts

This major article by Olukorede Yishau in The Nation chronicles a surprising array of contentious legal disputes between the Nigerian Army and former military officers. So far, the Army is not doing well in the civilian courts. A big case on the horizon involves 126 soldiers who were discharged for failing to fight against Boko Haram insurgents. It will come on for hearing on October 19 before the Industrial Court. The Boko Haram 126 claim, among other things, that they were denied an opportunity to be heard on whether they should be discharged.

The Army is also reintegrating many soldiers who had previously been sacked but have since been recalled to active duty. Details here.

Tuesday, August 25, 2015

Are Pakistan's military courts subject to judicial review?

Two justices of the Peshawar High Court may think they are, judging by the case described in this article in The Express Tribune. Excerpt:
The Peshawar High Court (PHC) suspended on Tuesday the execution of a death-row prisoner, who was sentenced to death by a military court for involvement in terrorism. 
A two-judge bench comprising of Justice Musarat Hilali and Justice Younis Thaheem suspended the sentence till September 8 and asked the ministry of interior, general officer commanding Malakand, Khyber Pakhtunkhwa, IG prisons and home and tribal affairs department secretary to respond to the petition by filing writing comments. 
Haider Ali, 21, was given to the 24th Unit of Baloch Regiment in Swat on September 21, 2009 by a local jirga. He was then 14 years and eight months old and a 10th grade student at the Malakand Public High School, Swat. 
His hanging was suspended after his parents filed a petition in the PHC, challenging his death sentence.

The counsel argued the convict was juvenile at the time of arrest, and that neither the family was provided details of the trial nor the convict was given lawyer access.

Preparing for sunset

On August 3, the United States Institute of Peace published An Appraisal of Pakistan's Anti-Terrorism Act by Parvez Tariq and Mehwish Rani, offering a variety of thoughtful suggestions for reforming the country's existing civilian anti-terrorism courts. The subject is important and urgent because it was, in large measure, the ineffectiveness of these courts that led to adoption of the 21st Amendment, authorizing military courts to try civilians. We are now a little more than 16 months from the scheduled sunset date for the 21st Amendment. Even if Pakistan started work today on fixing the ATCs, is there enough time?

Tech and discipline watch: The Ashley Madison Controversy

So is it or isn't it an offense under military law to sign up for the "Ashley Madison" adultery website? Many members of the U.S. armed forces did sign up . . . cleverly using their military email addresses. Shane Harris has this very good report about the services' response on The Daily Beast. Excerpt:
America’s fighting men and women might have been sweating bullets last week, after Defense Secretary Ash Carter said the armed services “are looking into” military email addresses that showed up in the leaked customer files of adultery website Ashley Madison.

But uniformed two-timers can stand at ease. Service officials told The Daily Beast that the mere presence of an email address isn’t enough to investigate someone for adultery—which the military considers a crime—and there are no plans to launch a military-wide manhunt for cheating spouses.

“There is no crime in signing up for a website,” said Wayne Hall, an Army spokesman.

“We hold all personnel to the highest standards in using government resources,” said Cmdr. William Marks, a Navy spokesman, “and if revealed government resources were improperly used, we will take appropriate action.”
Phew. That was close. But watch for people to get nonjudicial punishment or adverse personnel record entries for misuse of government computer systems. Query whether any senior civil servants are losing sleep over this as well?

Monday, August 24, 2015

Compensation unavailable following Sierra Leone mutiny acquittals

[Major Vincent Sowa] told journalists that the prosecution was in court because somebody gave the wrong advice although he declined to name the source of the advice.

“Although we relied on the facts given by the police, we ought to have taken the decision that the accused persons had no case to answer,” Sowa expressed dismay.

Sierra Leone court-martial prosecutor commenting
on acquittal of suspected mutineers
(SL Politico details here)

Mombasa High Court overturns desertion courts-martial

Remember the mass trial of Kenya Defence Forces personnel on charges of desertion based on the accused's acceptance of employment by private security firms? Read this from The Star:
In a stinging defeat for the state, the High Court in Mombasa yesterday freed 25 ex-soldiers sentenced to life imprisonment for desertion by a court martial. 
Judge Martin Muya acquitted the ex-soldiers and said the Kenya Defense Forces and the Office of the Director of Public Prosecutions had not proved they abandoned duty. 
They may had gone to work for private American security firms in the Middle East in 2007 and 2008 and had written letters of resignation.

"The charge of desertion has not been proved and the court has made a finding that they were only absent without leave," Muya ruled. 
"The ex-soldiers are hereby set free," he said. 
The judge refused a request by Assistant DPP Alexander Muteti to stay his judgement while the state appealed.
*   *   *
The soldiers had argued that the offences of[] which they were convicted were alleged to have taken place in 2007, but the law they allegedly broke was enacted in 2012.
A detailed and at times moving account of the case appears here. There was a lot wrong with this prosecution. In the end, the accused were convicted of AWOL and sentenced to time served.

Thousands of inmates in Pakistani internment camps now subject to military trials

A new wrinkle has been added to Pakistan's military courts issue: it appears that thousands of people who are in internment camps will also now be subject to trial by military courts. This article from The Peninsula explains:
The government of Pakistan has quietly allowed the military courts to try thousands of suspects detained at different internment centres by passing an ordinance in February this year.

After the December 16, 2014, attack on the Army Public School Peshawar, the government had introduced the 21st constitutional amendment to allow for military courts.

On January 6, parliament passed the amendment that enabled military courts to try civilians facing various charges related to terrorism, militancy, sectarian violence, waging war against the state, armed forces and law enforcement agencies.

However, this constitutional amendment and the subsequent amendments to the Pakistan Army Act (PAA) did not allow for the trial of those detained in the internment centres.

According to retired Lt-Col Tahir Mehmood, of the army’s legal directorate, the initial amendment to the PAA was silent about the internment centres detainees.

“The amendments in the PAA made in January this year empowered jurisdiction of the military courts to those suspects who were not subject to the army act earlier,” he explained, adding that the 21st amendment gave constitutional cover to the amendments made in the PAA.

A former officer of the army’s judge advocate general (JAG) branch, the military’s legal directorate, said that there were over 6,000 suspects detained at different internment centres and that these suspects were captured in military operations since 2009.

During the hearings of some missing persons’ cases in courts, the military did admit to holding some of them in custody; it said these men were captured in the operational areas and then detained in the internment centres.

The detention of these suspects was of concern to the military.

As a result, while the petitions against the 21[st] amendment were pending in the apex court, the ministry of law and justice on February 25 promulgated an ordinance for further extending the ambit of the PAA to the persons under the custody of the armed forces.

This has now allowed the military courts to hold the trial of the men that had been detai[n]ed earlier, before the 21[st] amendment was passed. The trial of the detained suspects was never addressed in the earlier amendments in the PAA (which followed once the 21[st] amendment was passed) in January this year. In the same month, the jurisdiction of PAA has been extended to the Gilgit-Baltistan through a presidential order.
It thus seems that the scope of the 21st Amendment military courts was extended in February, with little if any public notice, to cover over 6000 internees. 

Talking about jurisdictional issues

BBC reports:  A UN-linked tribunal has ordered a halt to all legal proceedings in the case of two Italian marines accused of killing two Indian fishermen in 2012.
The International Tribunal for the Law of the Sea called for India to suspend its court case against the two marines, pending international arbitration.
It also rejected Italy's request for the marines to be freed while they await the final ruling.
The case has led to a bitter diplomatic row between Delhi and Rome.
Italy says that as the shooting took place in international waters, the men should be tried in Italy.
However, India wants the men tried in an Indian court. It has ruled out the possibility of the death penalty.

Can it be done?

Readers are aware that an issue of importance we follow is that of jurisdiction of courts-martial.  We are interested in how other countries deal with court-martial jurisdiction compared to the U.S.  In the U.S., current law allows court-martial jurisdiction based purely on the accused's status regardless of the crime alleged or any consideration of a "service connection." Is the following an example of how the splitting of jurisdiction is possible?:
A Russian soldier accused of the motiveless killing of seven civilians near his army base in Armenia has been given a ten-year sentence for disciplinary offences at a court- martial, while the actual murder charges will be tried in a local court.
. . .
On August 12, a Russian court martial held at the Gyumri garrison found Permyakov guilty of desertion, stealing a weapon, and bearing it without permissions. He was given the maximum sentence, ten years.

Last month, the Russians handed over case files to Armenian investigators, who plan to bring a prosecution for murder under national jurisdiction. Prosecutors are preparing a case and arranging procedural matters, and lawyers acting for relatives of the victims are awaiting further announcements.
So reports the Institute for War & Peacekeeping.

Can it be done?  Should it be done?

If the argument against is the loss of leader control over discipline, then does the Russian example show otherwise?  Agreed, one anecdotal event doesn't prove the point.

Pakistan Peoples Party demands military courts

The Pakistan Peoples Party has demanded the establishment of military courts in Gilgit-Baltistan, according to this report.
“The government should not delay establishing military courts in the region since everyone is on board with the idea,” former deputy speaker Jamil Ahmed told the media in Gilgit on Saturday. 
“A delay in establishing military courts in the region will delay the implementation of [the National Action Plan],” he said.
Gilgit-Baltistan is an autonomous self-governing region that has not been formally integrated into Pakistan for reasons discussed here and here. Editor's hunch: the PPP demand may have as much to do with altering the region's constitutional status as with suppressing crime.

Sindh police recommend 10 cases for military trial

The Sindh police have winnowed down a list of 102 cases to only 10 recommended for trial by military court. One of the cases dates back to an event that occurred over 9 years ago. This article has a brief history:
[A senior] official said military courts were fist established in 1992 on the recommendation of a federal investigation team that was formed back then. The reasons for setting up the military courts back then were the slow progress of trials and threats received by judges.

Some cases were tried in those courts but they ceased to exist after the government was dissolved. 
The military courts were again set up in 1998 on the recommendation of the law enforcement agencies after a series of killings and bomb blasts in Karachi.

It was again noticed that that trials were not speedy enough and judges feared for their lives.

The first case tried in these courts was that of Rafi Bubbly, who faced charges of raping a child. These military courts existed alongside anti-terrorism courts and dealt with most of the cases. In fact, the offence of illegally possessing a Kalashnikov was also tried in a military court.

The murder case of ex-KESC MD Shahid Hamid against Saulat Mirza too was tried in a military court but was transferred to the apex court after the dissolution of the government.

Sunday, August 23, 2015

Quote of the Week--A different George

The year 1791 brought the "Whiskey Rebellion" in opposition to a federal tax. The main insurgency occurred in Western Pennsylvania. President George Washington, Secretary of the Treasury Alexander Hamilton, and Virginia governor Light Horse Harry Lee set out with the militia to bring the insurgents to heel.
"The military expedition met little overt resistance in the mutinous regions. . . . At times, the behavior of the rowdy, heavy-drinking soldiers was more worrisome than that of the whiskey rebels, and at least two innocent civilians were killed by militia.  Washington set an important precedent by having these soldiers tried in civilian, not military, courts."
Ron Chernow, Alexander Hamilton, Penguin Press, N.Y., 2004, at 476.

Military courts in Uzbekistan

Bet you've been wondering about military courts in Uzbekistan. Here's what we've found online about the Supreme Court and its subordinate courts, thanks to the GRATA Law Firm's Nodir Yuldashev and Mirzaziz Ruziev:
Military cases. Special military courts are established in all regions of Uzbekistan and subordinated directly to the Military Judicial Board of the Supreme Court. Military courts hear military cases in respect of crimes committed by military officers, officers of the national security service, officers of internal affairs, as well as crimes related to breach of state secrets cases.
This highlights a key issue: jurisdiction is often thought of as personal or subject-matter, but there is a threshold question of whether the force to which an individual belongs is itself subject to military law (think: gendarmeries, border patrols, customs officials). Uzbekistan seems to cast its net broadly in this regard, and also seems to permit the exercise of military jurisdiction in state secrets cases. (The firm's website has a pesky registration requirement, so be prepared for that annoyance.)

Fight for the record of military court trial

Yet another issue has arisen in the legal fight over Pakistan's military courts. The Registrar of the Supreme Court has rejected a petition in which the father of a young man sentenced to death by a military court on the ground that the relief -- access to the case record -- should have been sought in a lower court. Counsel for the petitioner has stated that he will ask the Supreme Court to overturn the Registrar's decision. Details are available here thanks to The Express Tribune. Excerpt:
“Although the fact is that by avoiding to deliver necessary copies of documents to the convict … is departure from the fundamental right of the convict to be dealt with in accordance with law and is also against Article 10-A of the Constitution which guarantees fair trial,” [Zulfiqar Bhutta, counsel for the petitioner] said.
The Human Rights Commission of Pakistan (HRCP) is also considering filing a petition for ensuring fair trial as well as right of appeal to the persons, who have been convicted by the military courts.
As will be recalled, § 133B(3) of the Pakistan Army Act, 1952 states: "The decision of a Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever." The latest case could test the validity of that provision.

Saturday, August 22, 2015

UN peacekeeper misconduct in Central African Republic

The New York Times reports here on the status of misconduct cases involving UN peacekeepers in the Central African Republic. "Nine of the 13 cases reported in the past year involved children as young as 11 and that no one had yet been convicted."
"The scandal has touched a nerve at the United Nations, where the accountability of peacekeepers has long been an underlying issue. Responsibility for prosecutions rests with the member states that contribute the troops, but the United Nations has little leverage to ensure compliance. 
"The peacekeeping mission, composed of more than 12,800 uniformed personnel from more than two dozen member states of the United Nations, has been the main security force for the past year in the Central African Republic, one of Africa’s poorest and most chaotic countries." [Emphasis added.]
Memo to Secretary-General Ban Ki-moon: mightn't it be easier to monitor troop contingent personnel misconduct and related disciplinary proceedings if there weren't so many troop contributing states involved in a single UN peacekeeping mission?

Friday, August 21, 2015

New petition seeks right to appeal military cases to Supreme Court of Pakistan

A new round has begun in the ongoing controversy over military justice in Pakistan. A petition has now been filed in the Supreme Court seeking review by that court of all cases decided by military courts, regardless of whether the accused is a civilian or a member of the armed forces. According to this report in The Nation:
“If the judicial review cannot be provided to those victims of the military courts, it will be considered extrajudicial killing through a military judicial system,” says a petition filed by Lt-Col (r) Inam-ur-Rahim advocate under Article 184(3) of the Constitution. 
He said all citizens, including those living in cantonments, had a right to be treated justly, fairly and impartially by a forum having judicial mind. 
The petitioner said that under the original Pakistan Army Act, 1952, the chief of army staff had nothing to do with the army judicial system except appointing the judge advocate general of army. 
However, one of the military dictators, got powers through special army orders that sentence of death and dismissal from service of an officer was required to be confirmed by COAS. 
He said: “After confirmation by the COAS, a convict gets right to file an appeal before the court of appeals, consisting of the army chief or officers designated by him under Section 133 of Pakistan Army Act. 
”He questioned which officer in the chain of command could reverse the decision of court martial confirmed by the COAS.
The article goes on to trace the comparative history of appellate review of courts-martial in Pakistan, India, the UK, other Commonwealth countries, and the United States.

Section 133B of the Pakistan Army Act, 1952 (added in 1992) provides in part:
133B. Court of Appeals for other cases. -- (1) Any person to whom a court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court-Martial or Field General Court-Martial convened or confirmed or counter-signed by an officer of the rank of Brigadier or below as the case may be, and one or more officer, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals. Provided that where the sentence is awarded by the court-martial under an Islamic law, the officer or officers so designated shall be Muslims; Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff.
*   *   * 
(3) The decision of a Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.
This arrangement blatantly violates the requirements of independence and impartiality.

Pak. Const. § 184(3) concerns the original jurisdiction of the Supreme Court, and provides:
Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.

Wednesday, August 19, 2015

Concurring opinion by Judge Baker urges significant change in UCMJ appellate review

Hon. James E. Baker
In United States v. Arness, decided today, the U.S. Court of Appeals for the Armed Forces ruled -- expressly overturning several precedents -- that the intermediate military courts could not exercise All Writs Act review of cases that had not been referred to them by the Judge Advocates General. (Presumably this leaves intact the CCAs' power to grant extraordinary writs before there is a sentence, since at that point a case remains within their potential appellate jurisdiction, independent of any action by the Judge Advocate General.) 

Concurring in the result, just-retired Judge James E. Baker offered the following remarkable valedictory comments at the end of his separate opinion:
B. Article 69, UCMJ, Does not Serve the Purposes for Which it Was Intended

     Article 69, UCMJ, was enacted in 1956 with the purpose of preserving “the right to present minor cases for review by” the CCA in order to “achiev[e] certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces.” See [United States v.Monett, 16 C.M.A. [179,] at 181, 36 C.M.R. [335], at 337 [(1966)].

     Whatever was intended with Article 69, UCMJ, the fact is TJAGs do not as a matter of practice refer cases to the CCA or to this Court pursuant to Article 69, UCMJ, review. That means that a majority of cases arising under the UCMJ are sub-jurisdictional. That also means that a majority of courts-martial are not subject to appellate judicial review or civilian judicial review.

     TJAGs are not independent or impartial judicial entities. TJAGs represent the government and, while in theory they are to exercise independent judgment when it comes to Article 69, UCMJ, review -- and I do not doubt the sincerity with which they do so -- the fact is, they are closely aligned with the government. TJAG review, as a matter of appearance, is neither independent of government interest nor impartial.

     A restrictive reading of Article 69, UCMJ, also means that if the government wishes to avoid appellate judicial review, it need only ensure that an accused receives a sub-jurisdictional sentence. This can be done through the use of plea bargains and plea agreements. The accused’s usual interest, of course, beyond acquittal, is to minimize sentence exposure, not to ensure appropriate appellate review of legal questions, or to otherwise ensure that the government upholds the spirit and letter of the Fourth, Fifth, and Sixth Amendments.

     Nor are legal questions, due process issues, and questions of legal sufficiency limited to cases involving sentences greater than one year’s confinement or a punitive discharge. Although it is safe to assume more complex cases with greater punitive exposure are more likely to raise legal questions warranting appellate review and decision, this does not mean sub-jurisdictional cases are devoid of legal questions warranting judicial review. This means that the standard of justice as between services in sub-jurisdictional cases may not, in fact, be uniform between the services.

     The consequence is that a majority of cases are not subject to appellate review by the CCAs. This cannot be what Congress intended when it created a military justice system subject to appellate review. This also means a majority of appellate cases are not subject to civilian oversight. This cannot be what Congress intended when it created a system of military justice subject to civilian judicial oversight. But Article 69, UCMJ, is not clear, and this is the result.

     Therefore, I would invite the President and the Congress to consider Article 69, UCMJ, anew and in clear and plain language determine where and when courts-martial should be subject to direct judicial review. Without such clarity, the government will argue for and apply the narrowest possible jurisdiction, a view with which this Court has shown a recent propensity to agree. [Emphases added.]
One would think this was in the nature of an open letter to the Military Justice Review Group as well as the House and Senate Armed Services Committees.

Pakistan: the commentary begins in earnest

Now that the dust has settled on The Military Courts Case, serious commentary has begun to appear in the Pakistani media. Here are two recent contributions, each of which is well worth the time to study:

Sarmad Ali, The Basic Structure Debate:
. . . [I]n my humble opinion, the “salient feature” wording used by the learned judges in the most recent judgement on the 18th and 21st amendments seems to be much closer to the basic structure theory. However, the apex court judges in the coming years should try to adopt a more open, structured approach and explain in more detail the basic structure of the Constitution. It seems like the judges of the apex courts are in favour of developing the basic structure of the Constitution so as to avoid dire legal amendments. They want to maintain the clear role of the judiciary to strike down undemocratic amendments that violate the structure of the Constitution. It is good that the judges opined that the 18th and 21st Amendments were not in violation of the Constitution and that, therefore, military courts may function in Pakistan in order to curb terrorism and conduct trials of heinous offenders for a certain period of time. The judgment is plausible and welcoming as it endorses the will of the legislature. If the court had not given such a judgement there would have been political chaos.
Aitzaz A. Chaudhary, Judicial Proxy?:
Eleven out of seventeen members of the bench came to the conclusion that references to the military courts by the federal government and verdicts of the same are subject to review by the judiciary, and that the dictates of due process are applicable on the military courts, and that they are ‘bound’ to provide the accused (terrorists?), with a fair trial ensuring reasonable procedural safeguards (Sigh. And pigs will fly!).

Death sentence upheld in U.S. Army case

By a 3-2 vote, the civilian U.S. Court of Appeals for the Armed Forces today upheld the death penalty case of Army Sergeant Hasan K. Akbar. The 193-page decision can be found here. Two judges dissented on the ground that the accused was denied the effective assistance of counsel. The case was before the court on mandatory review. It is now eligible for discretionary review by the Supreme Court of the United States on petition for a writ of certiorari.

Command responsibility and the new DOD Law of War Manual

Major Patrick Walsh, Associate Professor in the International and Operational Law Department at the U.S. Army’s Judge Advocate General’s Legal Center and School in Charlottesville, has written an insightful post at Just Security on the command responsibility discussion in the Defense Department's new Law of War Manual. Bottom line:
The eight page dissertation of command responsibility in the DOD Law of War Manual is a significant step forward in ensuring the United States is in agreement with the international community on the nature of a commander’s obligation to ensure his soldiers comply with the law of war. Unfortunately, it is not sufficient to provide clear guidance to military commanders on what variation of command responsibility will apply to them and how the United States will enforce this principle of international humanitarian law on its own soldiers. Perhaps now it is time for Congress to finally amend the UCMJ to include, in some form, the principle of command responsibility so that it can readily be used to hold senior military commanders responsible if they fail in their duties to ensure their subordinates comply with the law of war. After 70 years of enforcing the principle on the rest of the world, it is time that the US Military is given the legal ability to apply this doctrine to its own Service Members.

Will Pakistan's 21st Amendment sunset in January 2017

If the current problems of Pakistan’s [civilian] courts continue, we will have no choice but to rely on the military courts and may even have to extend their lifespan.

From this editorial in the Lahore Daily Times

Rocky road to reform in Lebanon

Justice (ret) Gilles Létourneau
Global Military Justice Reform contributor Justice (ret) Gilles Létourneau writes:

As it appears in the August 19, 2015 edition of L'Orient | Le Jour, the Lebanese Minister of Justice intends to table a bill which will abolish extraordinary tribunals or courts of special jurisdiction and replace them with tribunals specialized in matters of terrorism and other serious crimes.

Although the initial intent of the Minister in this context was to abolish military tribunals, the bill for the time being is to keep them alive, but restrict their jurisdiction to the trial of military personel for military crimes. In other words they would lose their juridiction to try civilians. However the Court of Justice, which is a court of special jurisdiction, will be abolished.

Thus the investigation, prosecution and trial of all crimes related to terrorism and of other serious nature will be transferred from the military tribunals and the Court of Justice to the newly created specialized penal court. This new court will be composed of civilian judges. It will be integrated to the ordinary civilian justice system.

While the military tribunals will remain with a limited jurisdiction, the Court of Justice, as previously mentioned, will be abolished. Cases pending before the military tribunals will continue to be tried by these tribunals. However those actually before the Court of Justice will be transferred to the new specialized penal court.

The stated objective is to modernize the Lebanese system of justice, harmonize it with the international penal laws and respect human rights as well as the international standards for justice.

One has to welcome this initiative of the Lebanese Minister of Justice. It remains to be seen whether the reform will materialize in the end. The Minister has already tempered his initial commitment to abolish military tribunals. History is a witness to the fact that more than one commitment made by governments to reform the military justice system has died on the Order of the Day in the Legislative Assembly. Let us hope that the Minister will be successful in his attempt to reform and that his project will not become an additional statistic in the "failed attempt" column.

Tuesday, August 18, 2015

Lesotho courts-martial on hold

There's a sticky wicket in Lesotho. The government feels obligated under the Lesotho Defence Force Act to bring the pending mutiny cases to trial, but the independent commission established by the Southern African Development Community will not have completed its work by then.
[Lesotho Prime Minister Pakalitha] Mosisili told his fellow-leaders that the 30-day extension – to November 10 – that they had just granted the commission at the summit to complete its work meant the soldiers would have to remain detained without being charged for even longer. The Lesotho Defence Force Act stipulates that they should not be detained without being charged for more than 42 days.

But human rights groups have complained that the soldiers have already been in detention for more than 70 days.

In a statement on Monday night, Mosisili’s office said the Lesotho Defence Force should be at liberty to proceed with the court martial because the soldiers had already appeared in a court of law when their relatives won habeas corpus orders requiring the army to produce the detainees to show they were still alive. He said SADC’s extension of the commission’s terms of reference made it necessary to proceed with the courts martial.

The soldiers were not charged in a civilian court.

A South African government delegate who attended the closed summit session on Monday afternoon, where Sunday night’s decisions of the SADC Organ on Politics, Defence and Security Cooperation were confirmed, said SADC chairman Ian Khama had come down hard on Mosisili.

President Jacob Zuma, who had chaired the organ until this weekend, also “became quite irritated”.

“Lesotho wanted to contest some of the commission’s terms of reference, saying it was out of line with their constitution,” he said.

Speed bump on the way to the Bales 15-6


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Indian Coast Guard DIG to be court-martialed

The deputy inspector general of the Indian Coast Guard is to face a general court-martial next month. The case grows out of an incident in which, contrary to representations by the Indian government, DIG B.K. Loshali stated that the Coast Guard intentionally destroyed a Pakistani fishing vessel. Details here. Excerpt:
The Board of Inquiry was instituted in February after the Coast Guard found Loshali’s reply to the show-cause notice issued to him “unsatisfactory”. The notice was issued to him over remarks that he had ordered the Pakistani boat to be blown up off the Porbandar coast.

The Board had submitted its report to the Coast Guard headquarters in April-end after which it was studied at various levels. “The BoI had called for strict action. The general court martial proceedings against Loshali will start in September,” a defence source said.

Asked about the content of the report, sources said unedited video showed that Loshali did make the assertion that he had ordered the boat to be blown up, contrary to the denial he made later.

They added “suitable action will be taken” and that he will face strict action. Loshali had contradicted the government’s claim that the crew of the intruding Pakistani boat had themselves set the vessel ablaze, leading to an explosion that caused the vessel to sink.

Backgrounder on Lebanese military court

Middle East Eye has this analysis of the background of the Lebanese military court and current calls for its reform. Excerpt:

Mukhabarat Law
The military court is a hangover from the French Mandate. The last radical reshuffle took place in 1968 and was aimed at containing the mounting leftist and Palestinian movements in the country. 
When it was last amended, the law met no opposition in the parliament. 
“What do you expect from a law written by the mukhabarat [secret police/intelligence] and ratified by politicians? I think it tells the whole story,” Lokman Slim, founder of local NGO, UMAM, which tries to promote co-existence in Lebanon, told MEE. 
There are no statistics on how many cases are handled by the military courts compared to their civilian counterparts. While it is assumed that the civilian courts handle significantly more cases due to its very nature, the dearth of data highlights the lack of transparency within the military judicial process. 
While the public and the media are not technically banned from attending certain cases - such as those pertaining to civilians - they cannot physically get to the court because access to the military tribunal building is restricted. Furthermore, many of the military judges lack legal qualifications, being officers seconded to the tribunal from their regimental duties with no background in legal and judicial affairs. 
The situation has led law firm Justicia to denounce the army for its “failure to comply with the conditions of a fair trial in terms of transparency [i.e. the rights of defense, explanation of the judgments and public trials], jurisdiction, independence, impartiality and equality among citizens".

Monday, August 17, 2015

A new focus for the new IDF JAG

The Times of Israel reports:
Defense Minister Moshe Ya’alon appointed Col. Sharon Afek to be the new military advocate general for the Israel Defense Forces on Monday.
He's preparing to fight at the ICC.
For nearly 25 years, Afek has served in some legal capacity in the IDF, amassing experience in various aspects of military law that will allow him to serve as the army’s top attorney, Ya’alon said in his announcement.
Afek brings with him to the position the utmost in professionalism, straightforwardness, a moral backbone and a wide legal and military vision,” Ya’alon said.
“[These are] the most important characteristics to have against the meaningful challenges that stand before the military advocate general, both those that are internal and external,” he added, alluding to possible lawsuits against the IDF in the International Criminal Court.

Death sentence upheld in ROK military appeal

South Korea's highest military court -- the High Court for the Armed Forces -- has upheld the death sentence of a soldier who murdered five fellow soldiers. The decision is subject to appellate review by the civilian Supreme Court. Details here.

Another call for expanded use of military courts in Pakistan

The International News reports from Lahore:
Pakistan Muslim League (PML) leader Ch Pervaiz Elahi has said that every oppressed and helpless person has pinned hopes on military courts for justice whether it is the children abuse case in Kasur or an incident of lawlessness.

Talking to the media after sympathising with parents of children in village Hussain Khanwala in Kasur, he said the scandal was an ample proof of failure and bad governance of inefficient rulers in every sector. “We established institutions for the welfare and protection of children but Chief Minister Shahbaz Sharif has left them at the mercy of criminals,” he added.

Expressing grief over the martyrdom of Provincial Minister Col (R) Shuja Khanzada and others in a suicide attack in Attock, he said the most tragic aspect of the incident was that he remained buried under the debris for many hours and his nephew Sohrab Khanzada appealed to the Army Chief on the media to do something as the Punjab government was doing nothing. Supporting the demand for the Kasur tragedy case trial in military courts, he said,”We will continue our struggle till justice was provided to the victims.”

Protest over Egyptian coup trial

Click here on the Muslim Brotherhood website for a statement by the Istanbul-based International Association of Rights and Freedoms concerning a recent trial of 26 officers and two civilians by an Egyptian military court:
This case started back in April 2015, when coup authorities dragged the military personnel mentioned above out of their military units and subjected them to enforced disappearance for over a month. Then, a military court charged them with attempting to overthrow the government in 2013 following the ouster of Mohamed Morsi, Egypt's first elected civilian president.
The court did not allow the accused the right to defend themselves, totally ignored litigation standards, and imposed restrictions on the case imposing a complete blackout on proceedings. The court also prevented the lawyers from seeing the full documents of the case. Thus two cornerstones of fair trial standards fell: transparency and public announcement.

The verdict against the two civilians in the case is null and void, since the law prohibits the trial of civilians before military courts and states that trials of civilians can only be done before their natural judge.

Accordingly, the IARF calls for the cancellation of the verdict and a public re-trial with due process that guarantees all the rights of the accused and affirms that the accused civilians in the case must be tried by their natural judge, according to the procedures established by law.
If the circumstances are as stated in the protest, these proceedings violate just about every rule in the book.