San Antonio Express-News editorial on military justice reform

Prompted by the Associated Press's recent investigative report on transparency in military justice, the editorial board of Hearst Newspapers' San Antonio Express-News has published this editorial on military justice. Excerpt:

The military touts its justice system as just as effective — if not more — than its civilian counterpart. But when it comes to what is public, that is demonstrably untrue. 

Civilian court records are often just a keyword search and a click away. AP filed 17 separate FOIA requests for documents from more than 200 military sexual assault cases ending with conviction. By the time it published its article, the branches had provided complete trial records for five cases and partial records for 70. 

This is the opposite of public. And it’s not as if the trials themselves are public. While military trials are ostensibly open — like civilian trials — they take place on military bases that restrict public access, the AP said. 

Congress should revisit how the military treats sex crimes altogether — there’s still more work to be done. This includes removing commanders from the decision making in who and when to prosecute.

Emphasis added.

NIMJ brief filed in Al Nashiri (USS Cole bombing case)

Steve Vladeck and Eric Montalvo have filed a brief amicus curiae for the National Institute of Military Justice [full disclosure: the editor is president emeritus of NIMJ] in the Al Nashiri case in the U.S. Court of Appeals for the District of Columbia Circuit. Steve has written about the case and the brief here on Just Security. The brief, he writes, takes

no position on the merits, but argu[es] that Judge Roberts was wrong to abstain from deciding them. In a nutshell, the brief offers three interrelated conclusions:

1. Abstention in favor of the Guantánamo military commissions does not remotely follow from Councilman, because the commissions trigger neither of the comity-based considerations that, in Councilman, justified abstaining in favor of a servicemember’s trial by court-martial (unlike courts-martial, the Guantánamo military commissions are trying non-servicemembers for non-military offenses, and they are not independent of, but rather directly subservient to, the Article III civilian courts). 
2. Even if abstention in favor of the Guantánamo military commissions was ever appropriate, al-Nashiri’s claim is the exact kind of challenge to the subject-matter jurisdiction of a military court that the Supreme Court has consistently adjudicated (and authorized lower courts to adjudicate) in the context of collateral pre-trial review. 
3. Abstention is especially inappropriate in al-Nashiri’s case because of the stay that remains in place in the Court of Military Commission Review (a result of the ongoing efforts to resolve the Appointments Clause issues raised by the D.C. Circuit earlier this year), the practical effect of which is to “cut[] against any argument that resolution of Petitioner’s claims … will somehow further delay Petitioner’s trial.”

Al Bahlul to be heard en banc tomorrow

Thus, before considering whether to expand the reach of military commissions to encompass prosecution of offenses not recognized as war crimes, it is worth taking a step back to consider not just whether such a step is constitutional, but also what practical considerations support doing so. As Judge [David] Tatel argues in his concurring opinion in Al Bahlul III, declining to expand the jurisdiction of military commissions beyond prosecuting violations of the law of war does not prevent the government from ensuring that those who conspire to commit terrorism are appropriately punished. As Tatel notes and our report demonstrates, “the government can always fall back on the apparatus it has used to try federal crimes for more than two centuries: the federal courts.”

James Benjamin and Rita Siemion, writing here, at Just Security

Algeria's former anti-terrorism chief sentenced to 5 years in jail

Earlier today, the influential Algérien newspaper Le Matin Algérien  published an opinion piece under the heading Un tribunal militaire décidément très averti concerning the condemnation of Algeria's former counter-terrorism chief, Abdelkader Ait-Ourabi better known as General-Major Hassan, who was sentenced to five years in jail on November 27, 2015 for destroying documents and disobeying military orders.

Le  Matin Algérien is very critical of General Hassan's conviction by the Oran military tribunal. The paper qualifies the entire affair as a blatant injustice, the result of political machinations by the ruling oligarchy.

Retired in September 2013, General-Major Hassan was arrested late in the evening of September 4, 2015. He was accused of insubordination, creation of an armed force, unauthorized retention of privileged information, and unauthorized possession of weapons. While awaiting trial, he was confined to the military prison in Blida and was denied access to counsel for over a month.

Lawyers Weekly reports on R. v. Moriarity

The Lawyers Weekly has this article by Cristin Schmitz about the Supreme Court of Canada's recent decision in R. v. Moriarity 2015 SCC 55. Excerpt:

“Bottom line, the Supreme Court of Canada stated that the purpose of the military justice system is to deal with matters that pertain both directly and indirectly to military discipline,” said Lieutenant Commander Mark Létourneau, co-counsel for the four appellant Forces members who were variously convicted by service tribunals below of sex, drug and fraud crimes. 

The decision “means that each and every conduct committed by a military person is subject to” the Code of Service Discipline, Létourneau said. 

“It really boils down to status: if you’re military, or if you’re subject to the code, that’s it. You’re going to be under the jurisdiction of military courts — no matter how small, or how unrelated, that conduct may be to [Forces] discipline or to the operational efficiency of the military.” 

In the wake of Moriar[i]ty “it becomes a political decision” whether to maintain the “blank cheque” the National Defence Act gives to military authorities, he suggested.

Speaking of which, the window is still open for readers' suggestions as to how the National Defence Act might be changed in light of Moriarity. The usual Global Military Justice Reform ban on anonymous posts has been lifted for this purpose, so don't be shy. What change would you make? Please send your specific legislative language using the Comment function.

The Red Shirt Diaries, Episode 20

Have you seen Episode 20, "Court-Martial," of The Red Shirt Diaries? TrekToday.com has this gripping plot summary:

In the twentieth episode of The Red Shirt Diaries, a court martial is being held. 

But the person being court martialed is not Captain [James T.] Kirk, but Ensign [nfi] Williams. 

Never fear, Williams has an advocate for justice, just as Kirk did in Court Martial. But “Old Timey Chris” is not [attorney] Samuel [T.] Cogley and with help like his, Williams might just end up being kicked out of Starfleet.

Next episode: military justice reform?

Jurisdictional "black hole" on some U.S. bases

The Austin American-Statesman reports here on an obscure but important issue: what to do about sex (and other) crimes committed by minors on U.S. military bases over which the federal government has exclusive jurisdiction. One solution is a retrocession of authority to the state. That would permit local prosecutors to become involved. Dependents are not subject to the military justice system. Excerpt:

There is no clear authority for prosecuting juvenile crime on military installations. Military courts cannot prosecute civilians -- and the federal system responsible for civilian crime is ill-equipped to pick up most juvenile cases. 

Fortunately, it appears Republican U.S. Sen. John Cornyn of Texas and Republican U.S. Rep. John Carter of Round Rock, who represents parts of Fort Hood, have taken up the cause and requested that the Army, the Department of Justice, and state and local officials look at finding a solution. Republican U.S. Rep. Roger Williams of Austin, who also represents parts of Fort Hood, indicated to us that he would monitor the issue. 

The problem is not unique to Fort Hood, which is one of the nation's most populous military installations. However, other installations have worked out collaborative agreements with local prosecutors to take these sensitive cases. 

The scope of the problem is significant. A document obtained through a Freedom of Information Act request shows 670 reported incidents of juvenile crime from 2010 to 2015, including a dozen sex crimes. An internal Fort Hood legal memo obtained by the Statesman details more juvenile sexual assaults -- 39 between 2006 and 2012 -- resulting in no federal prosecutions and just a handful of cases referred to local prosecutors.

Reporters Without Borders complaint in Chile

Reporters Without Borders has posted this account of a controversy involving efforts by the Chilean military to problem civilian media about leaks relating to the military. Excerpt:

Reporters Without Borders accuses Chile’s military justice system of violating freedom of information by pressuring the staff of the political weekly The Clinic to reveal their sources for a series of reports about alleged corruption and embezzlement involving many army officers. 

The Clinic owner and legal representative Pablo Dittborn, publisher Patricio Fernández, editor Andrea Moletto and Mauricio Weibel, the reporter who wrote the stories, were summoned for questioning at the start of October by Rodrigo Acevedo, the military judge in charge of investigating the leaks leading to the exposure of the so-called “Milicogate” scandal. 

However, Chile’s military courts have not been empowered to investigate cases involving civilians since 2011 and, in theory, are limited to handling cases directly linked to the armed forces. 

Officially, the magazine’s owner and staff members were just questioned as witnesses but in practice they were pressured to reveal their sources. The confidentiality of the media’s sources is nonetheless guaranteed by Chile’s press law (Ley de Prensa) and by rulings on this subject issued by the Inter-American Court of Human Rights, which Chile is required to respect. 

“This violation of the confidentiality of sources and attempted intimidation by the Chilean military justice system are unacceptable and constitute a grave violation of media freedom and democracy in Chile,” said Emmanuel Colombié, the head of the Reporters Without Borders Latin America bureau. “We urge the Chilean authorities to respect the press law and Chile’s international obligations.”

Closed military trial in Algeria produces 5-year sentence

"General Hassan" was sentenced today to five years in prison following a closed military court trial. He had previously served as Algeria's chief of counter-terrorism. The charges against him were disobedience and destruction of document. Details of the case appear here.

Forthcoming reform of Chinese military courts

On the evening of November 26, Chinese official media (and the South China Morning Post) reported that Xi Jinping, Chairman of China's Central Military Commission, announced the long-expected reforms to the Chinese military at the conclusion of the Central Military Commission Work Conference.  As regular readers of this blog would know (see these earlier articles, for example), reform of the military justice system is on the agenda. The reforms call for reorganizing the military courts (and procuratorates) based on their location (the reforms call for the establishment of strategic zones and joint operation command systems, to replace China's current fragmented system) to enable them to operate with more autonomy and bolster their prestige or, as the Ministry of Defense report states, "to ensure independent and impartial exercise of their functions and powers according to law." The PLA's legal function is also slated for reform. Details are starting to emerge on the re-structuring of the military courts and legal function.  This observer hopes that greater transparency will be part of that re-structuring.

Thanksgiving 2015

A big milestone

Global Military Justice Reform has hit another big milestone: as of a moment ago, we have had 200,000 hits. Interest in the subject seems to be growing around the world. Since our launch in January 2014, the blog has had 2156 posts (1003 so far in 2015) and 323 comments, and has been visited by readers in 161 jurisdictions.

Thanks to everyone -- contributors, commenters and readers -- who has made this possible. Please keep your posts and comments coming! (Remember, real names only.)

Naming & shaming

Rembert Bloom, formerly of the Dutch Ministry of Foreign Affairs, has this timely American Society of International Law Insight report on Impunity of Military Peacekeepers: Will the UN Start Naming and Shaming Troop Contributing Countries? His conclusion:

The Secretary-General’s proposal to ensure criminal accountability of military members through a naming and shaming policy, under which unconditional exclusive criminal jurisdiction of TCCs [Troop Contributing Countries] is preserved, seems relatively accommodating to TCCs, especially compared to a measure such as complementary local criminal jurisdiction as provided for under the UNTAG SOFA. However, in view of the C-34’s past resistance to accountability measures, it cannot be readily assumed that it will consider a naming and shaming policy an acceptable compromise.

Peacekeeper discipline is certainly one of 2015's biggest military justice stories. As the year wraps up, what others come to mind? 

All is not alegria in algeria

Under the UCMJ a retired military person is considered subject to court-martial jurisdiction for acts of misconduct committed on active duty, and a retired officer is subject to certain prosecutions for conduct while retired.

On that note Algeria's News24 reports:

Algeria's former head of counter-terrorism, forcibly retired on the orders of a military judge at the end of 2013 and placed under surveillance, has been arrested.  He will appear in a military court in the country's first trial of a high-ranking officer in the secret services, according to his lawyer.

Abdelkader Ait-Ouarabi - better known as General Hassan - is accused of "destroying documents and disobeying military instructions", Mokrane Ait-Larbi, the lawyer, told AFP news agency on Monday.

There certainly appears more to this, we'll keep our eyes open.  In the meantime this link may give a little more of the back story.

Canadian Parliament is called to action to reform the National Defence Act

The French-Canadian weekly news magazine “L’Actualité” publishes a 2,000 word essay "La justice militaire sort gagnante" on the recent Moriarity decision by the Supreme Court of Canada, which declared as constitutional section 130 of the National Defence Act which incorporates the provisions contained in the Canadian criminal law corpus. 

 The article is written by laureate investigative reporter Noemi Mercier who spent a year in 2014 delving into the culture of sexual violence in the Canadian Forces and who attended the recent military law conference “Winds of Change” which took place under the auspices of the Faculty of Law, University of Ottawa on November 13, 2015. 

Acknowledging that a majority of speakers, foreign and national, at the "Winds of Change" military law conference had called for reforms of the military justice system, she writes:

Translation	Original text
Despite the low level of confidence of victims and the chorus of voices critical of the lack of independence of the military justice system and despite the worldwide winds of changes to reform military tribunals they remain intact. As a result of the Supreme Court decision, these tribunals are growing stronger.	Malgré les voix qui s’élèvent pour critiquer le manque d’indépendance de ce système et le peu de confiance qu’il inspire aux victimes, et malgré le vent de réforme qui souffle sur la justice militaire dans le reste du monde, les tribunaux militaires canadiens demeurent intacts. Ils en ressortent même plus forts.
Canada is one of the last few countries in the industrialized world where a soldier accused of a crime can still be tried by a court martial. The only crimes which do not fall under the jurisdiction of military tribunals are murder, manslaughter and kidnaping of children which occur on Canadian soil.  Until 1998, sexual assaults could also only be tried by civilian courts; however, that year Parliament changed the National Defence Act to give military tribunals jurisdiction over these crimes.	Il faut savoir que le Canada est l’un des derniers endroits dans le monde industrialisé où les soldats accusés d’un crime peuvent encore être jugés en cour martiale. Les seuls crimes qui échappent encore au giron militaire sont les meurtres, les homicides involontaires et les enlèvements d’enfants perpétrés en sol canadien. Jusqu’en 1998, les accusations d’agressions sexuelles étaient elles aussi du domaine exclusif des tribunaux civils; mais cette année-là, le Parlement a modifié la Loi sur la défense nationale pour y ajouter cette catégorie de crimes.
According to Colonel-Maitre Michel Drapeau, the required urgent reforms to the Canadian military justice can only now happen if elected officials intervene to modernize the National Defence Act. “It is not up to the Supreme Court to lead such reforms. To change an existing law is the role of Parliament which must urgently lead efforts to modernize the National Defence Act to ensure that CF members be afforded the same rights as their fellow citizens.”	De telles réformes ne seront pensables au Canada que si les élus interviennent, selon l’avocat et colonel à la retraite Michel Drapeau, qui a représenté plusieurs militaires victimes d’agressions sexuelles. «Il n’appartient pas à la Cour suprême de réformer la loi, dit-il. C’est du seul ressort du législateur. Il est donc urgent que le Parlement s’affaire à moderniser cette loi pour s’assurer que les membres des Forces armées bénéficient des mêmes droits que les autres citoyens du Canada.»

Run-up to al Bahlul argument

Prof. David Glazier

Loyola Law School's Prof. David Glazier has posted this incisive commentary on the Just Security blog about the upcoming al Bahlul case in the U.S. Court of Appeals for the District of Columbia Circuit. He argues, persuasively, that the U.S. cannot rest a military commission prosecution for conspiracy on domestic precedents rather than the international law of armed conflict. His attention-grabbing conclusion:

"If the United States now decides that it can hold foreign personnel accountable for violating “domestic” law of war rules, other states will be entitled to assert the same authority. Consider the consequences for US personnel captured in a potential future conflict with Iran or China. Are we willing to concede Iran has the ability to try, and even potentially execute, captured Americans based on its ability to find examples of past military punishments in 2,500 years of Persian history? Even more dauntingly, China has more than 4,000 years of historical practice to fall back on. The principle of estoppel would logically bar US objection to such trials. As a matter of both law and respect for our own military personnel, then, this Court should adhere to clear precedent limiting law of war tribunals to prosecuting violations of the international law of war and reverse al Bahlul’s conviction. There is no jurisdictional bar (nor practical risk of double jeopardy) that would prevent the government from charging him with ordinary federal terrorism crimes which have disparate elements from the charges he faced at Guantánamo."

The en banc Court of Appeals will hear al Bahlul again next week. Regardless of which side prevails, the case is a good candidate for discretionary review by the Supreme Court of the United States.

An Urban False Positive

On August 19, 2011, Diego Felipe Becerra, was gunned down by Wilmer Alarcon, a police officer, reportedly while he had a paint brush in his hand.  Diego Felipe was probably killed because he was illegally painting graffiti on a wall in Bogota, Colombia.  The police turned him into a thief, alleging that the 16-year old graffiti artist, had a gun in his hand and was trying to rob a passenger on a bus.  Police General Francisco Patiño, the highest ranking Police officer involved in the case, reportedly met secretly with the bus driver to get him to falsify his testimony and implicate Diego Felipe in an alleged bus attack that he did not commit.  The Prosecutor’s office is investigating the General’s possible responsibility for the cover-up of the scenario that Diego Felipe was gunned down as an armed delinquent in an exchange of gunfire.  The Prosecution has been able to prove that the Police planted a gun on Diego Felipe and the case is now known as an “urban false positive.” A “false positive” is the term given to the practice of members of the Colombian military who murdered civilians and presented them to authorities as guerrilleros killed in battle, in an effort to inflate body counts and receive promotions or other benefits.  It is noteworthy that the Colombian Senate promoted General Francisco Patiño to Brigadier General two years after this incident.

The Lawyers’ Collective Jose Alvear Restrepo and a number of other organizations on November 24, 2015, have taken the case of Diego Felipe Becerra and four other victims to the Colombian Constitutional Court to challenge the constitutionality of Law 1765, approved on July 23, 2015.  This law restructured Colombian military and police criminal law.  The law contains 129 articles and establishes that the President of Colombia name the Prosecutor for Military and Police Crimes for a period of four years that is not renewable.  The law also creates military and police courts with jurisdiction throughout Colombia.  Since the military criminal jurisdiction is dependent on the executive branch, not the judicial branch, the reform violates basic principles fundamental to the administration of justice, such as autonomy and impartiality. The law extends military jurisdiction to crimes that violate human rights, attacks on the civilian population and the public administration.  It also extends military jurisdiction to those who serve in positions in police and criminal military justice and to retired members of the military who carry out the same functions.   In so far as the law recognizes crimes distinct from those which are inherent in military service it violates the rights of the victims, violates the prohibition against military courts trying civilians and violates the restriction on granting the military judicial police functions.

Indian advisory committee submits report including military justice recommendations

India's committee on reduction in defense litigation has submitted a 509-page report to the Ministry of Defence. The full report itself is not yet available, but preliminary information about the 75 recommendations has been released. According to this news account in the Indian Express,

The recommendations in the chapter of military justice reform include steps that can be taken without any legislative change such as introduction of permanent infrastructure for Courts Martial at specified military stations to reduce command influence in the process of military justice.

We have the following from committee member (and Global Military Justice Reform contributor) Major (ret) Navdeep Singh:

Committee of Experts for reduction of litigation in the Ministry of Defence and strengthening mechanisms of Redressal of Grievances, officially submits its Report to the Raksha Mantri

As we submitted our Report to the Raksha Mantri today, we felt proud as well as relieved.

Proud, since we were a part of a historic opportunity initiated almost seven decades into independence, to not only look into steps for minimizing litigation initiated against soldiers and veterans by the Ministry of Defence but also to address the status quo in the various systems of redressal of grievances, and improvement thereon, for the men and women in uniform and also defence civilians who so proudly serve us in trying circumstances. Relieved, since the last few months were heavy on all of us, as we went about this onerous task diligently and honestly and in great detail within the granted time so that we do not let you down.

Burdened by thousands of cases involving the MoD and the dissatisfaction on this account, the Raksha Mantri had constituted a Committee of Experts for review of service and pension matters including potential disputes, minimizing litigation and strengthening institutional mechanisms related to redressal of grievances. The step was in line with the Prime Minister’s vision that Government departments should concentrate on core issues of governance rather than wasting time and resources on unproductive activities. The Committee functioned almost like a Blue Ribbon Commission by going into minutiae of multiple issues and by interacting with various wings of the MoD as well as the Defence Services.

Litigation over draft exemption for Israeli haredim

The latest Israeli conscription legislation is the subject of litigation in the High Court of Justice. The new law effectively exempts ultra-Orthodox men from the draft. According to this account in the Jerusalem Post:

The amendment passed on Monday night postpones the implementation of obligatory enlistment on full-time yeshiva students, which was supposed to come into effect in 2017, until 2020, after which the Defense Minister will have the authority to exempt yeshiva students from military or civilian service if he so wishes, “while bearing in mind” targets established by the government.

Such exemptions can be given until the age of 26 at which point the yeshiva students will receive a final exemption from military service.

The Yesh Atid party and the Union of Israeli Students are the plaintiffs in the case. The exemption of hared students from conscription has been a flashpoint for years. How the litigation will unfold will also be a test of the High Court, which has come under strong politically-inflected criticism recently.

Is conviction by court-martial a bar to high office?

The process is an unfamiliar one to an American reader, but it appears from this account in The Nation that the Supreme Court of Pakistan plays a role in reviewing appointments to high office -- and takes offense when the facts are concealed:

The Supreme Court yesterday expressed annoyance over the federal government for concealing the fact that Shujat Azeem, Special Assistant to Prime Minister on Civil Aviation Authority (CAA) was court martialled. 

The attorney general was ordered to submit the service profile of Shujat Azeem. 

A three-judge bench, hearing the case, took strong exception to the petition filed by the federation as it concealed that Shujat was convicted by the Air Force. 

Deputy Attorney General sought permission to withdraw the petition, however, the bench rejected it. 

“We will not allow this to happen,” said Justice Amir Hani Muslim, who was heading the bench. 

The secretary CAA regretted the omission, and said it was not wilful. 

However, the court noted it was wilful, because when the secretary was confronted he admitted that Shujat left the service after he was court-martialled. 

The court, therefore, summoned Secretary Establishment. 

Nadeem Hassan Arif appeared before the court and submitted a summary of Shujat Azeem’s appointment. 

He told the court that the summary for the appointment of Shujat Azim had been floated by the secretary cabinet and not routed through the Establishment Division. 

The court noted that according to the summary Shujat Azeem was convicted by the Air Force. 

The bench expressed annoyance over the appointment of a convicted person as Special Assistant to PM. 

The court asked the Deputy Attorney General Sajid Illyas Bhatti that the federal government has two options, either to de-notify Shujat Azim or defend his appointment before it (court). 

The bench questioned whether the prime minister can appoint a convicted person on such an important post. 

The AAG sought some time to get instruction regarding the matter. 

The court, therefore, adjourned the case till 2nd December. 

In view of the apex court’s 25-07-13 order, Azim had tendered resignation as advisor to PM on CAA. 

However, he was again appointed as special assistant to PM on CAA after the retirement of former chief justice Iftikhar Muhammad Chaudhry.

Can a reader in Pakistan clarify the Supreme Court's role? 

Where should this case be tried?

From Bangladesh we read here of an interesting interim decision of the Supreme Court's Appellate Division:

The Appellate Division of the Supreme Court on Monday upheld a High Court order that had stayed transfer of a case from a special tribunal to the military court.

The case was filed against army major Nazir Uddin over torturing his wife Nusrat Jahan Tushti “for dowry.” Tushti is an MBA first-semester student at Dhaka University. 

A four-member bench led by the chief justice, Surendra Kumar Sinha, passed the order that stayed the order by the army headquarters to send all papers of the case for holding the army officer's trial under court martial. 

Talking to Prothom Alo, Tushti’s father Nurul Islam Bhuiyan said the Appellate Division’s decision has suspended the process of transferring the case to the military court. 

Tushti’s father Nurul Islam, a retired banker, filed the case with the special court in Tangail on 2 April. 

He alleged that Tushti’s army officer husband Nazir Uddin and father-in-law retired army officer Idris Ali, had tortured his daughter for dowry on 30 March.

This could prove to be a real "pushing-and-shoving contest" between the civilian courts and Army Headquarters. Whatever Bangladeshi jurisprudence provides, where should such a case be tried?

Writing Competition (Bill C-???)

If, notwithstanding the Supreme Court of Canada's ink-still-wet decision in R. v. Moriarity, 2015 SCC 55, you believe Canadian military justice should not make every civilian criminal offense a military offense, or that there should be a nexus (or service connection) requirement for court-martial subject-matter jurisdiction, what would the legislation needed to achieve either or both of those goals look like?

Departing from our usual rigid real-names-only comments policy, Global Military Justice Reform hereby invites readers to submit draft legislative proposals even if they feel a need to do so anonymously. Please take your time on this, and post actual bill language.

The best submission for Bill C-??? will receive special mention on the website. Who will be mentioned in dispatches?

Transparency and child-victim sex cases

"The American justice system is a model of openness. In most cases, the public can easily watch trials, get transcripts and view most other materials involved in a case.

"Unless we're talking about a military trial, where the rules and public access can be decidedly different. As an Associated Press investigation recently found, this can be a problem, especially when the victims aren't soldiers, but rather are children. . . .

"While military leaders can make a good case for a criminal-justice system that is separate and different from the civilian courts, what can't be justified is a lack of transparency. That's especially true for cases that involve civilian victims, and all the more so when those victims are children.

"It's clear that further reforms in the military-justice system are in order."

From this Nov. 23, 2015 editorial in the Fayetteville Observer

Will this hearing be open or closed?

The case of former Algerian counter-terrorism chief Abdelkader Ait-Ouarabi, also known as General Hassan, will be coming on for hearing in a military court on November 26, 2015. The immediate issue is whether it will be open to the public and the media or conducted behind closed doors. The Algerian military justice code adopts the civilian code of criminal procedure, which permits closure only when an open hearing would endanger public order or morals.  According to this report in Liberté, defense counsel Mokrane Aït Larbi argues that the hearing must be open to the public. The court will decide. Background on the case appears here and here.

Delay in Indian homicide case

It seems from this Tribune report that civilian court proceedings in a case in which Indian Army soldiers are under investigation for mistaken-identity homicide in Chattergam are being held up because the Army has dragged its feet in turning over the report of a court of inquiry, a step that seems to be necessary for the Jammu and Kashmir Police to take the case into civilian court. Excerpts:

“The Army has already completed the court of inquiry but the police are yet to file the chargesheet. The Army cannot award punishment on its own in a military court because the case was being concurrently probed by the Army and the police and is in a civilian court,” said an official source. 

“The Machil fake encounter case of 2010 was transferred to a military court, which is not so in this case where the chargesheet has not been filed as yet,” the source added. “The Army’s court of inquiry might have found the charge of use of excessive force against the soldiers to be true but legal procedures have to be followed,” the source said. 

The killings of two teenagers and injuries to two others had triggered a wave of protests in Kashmir that saw Northern Command chief Lt Gen DS Hooda issuing an apology barely five days after the shootout. 

On November 3, 2014, a patrol belonging to 53 Rashtriya Rifles opened fire on a white Maruti car after it allegedly didn’t stop at two check points, fuelling suspicions that they were terrorists. 

The Army held a probe against 14 soldiers, out of whom four were found guilty of violating standard operating procedures. 

A senior police officer said the police was still awaiting the Army’s court of inquiry copy. “Without the Army’s court of inquiry report, we cannot file the chargesheet. We have repeatedly sought it from them (Army) but there is no response from their side to date. Therefore, the case definitely is in limbo,” he said. 

Under legal provisions the chargesheet has to be filed within 90 days of the incident and the deadline lapsed in the first week of February this year, he added. 

He said the chargesheet had to be filed in Munsiff Court in Chadoora. The police FIR had stated that the soldiers had opened fire on the car with the “intention to kill’’ the occupants. 

The underlying incident took place over a year ago. It thus seems that the Army can thwart civilian prosecution by continuing to withhold the court of inquiry's report. Can Indian readers clarify? (Real names only, please.)

Website of interest

Readers with an interest in gendarmeries and constabularies may want to study the website of FIEP, the Association of European and Mediterranean gendarmeries and police forces with military status. According to the organization's website:

At present the FIEP consists of the following Members: 

Gendarmerie Nationale, France (1994)
Arma dei Carabinieri, Italy (1994)
Guardia Civil, Spain (1994)
Guarda Nacional Republicana, Portugal (1996)
Jandarma, Turkey (1998)
Koninklijke Marechaussee, The Netherlands (1999)
Gendarmerie Royale, Morocco (1999)
Jandarmeria, Romania (2002)
Gendarmerie Forces, Jordan (2011)

Some Forces, which do not meet the geographical requirements, are Associate members: 

Gendarmeria Nacional, Argentina (2005)
Carabineros de Chile, Chile (2005)
Lekhwiya Forces, Qatar (2013)

Finally, two Forces recently joined the association as Observers: 

National Guard, Tunisia (2015)
National security Forces, Palestine (2015)

HRW report on secret Syrian military trial of civilian

Human Rights Watch has this report on the case of a civilian who is said to have been sentenced to death following a secret court-martial. Excerpt:

Bassel Khartabil, a defender of freedom of expression being held in conditions amounting to enforced disappearance may be facing a death sentence, 36 local and international organizations said today. His wife has received unconfirmed reports that a Military Field Court has sentenced him to death. His whereabouts should be disclosed immediately, and he should be released unconditionally, the groups said.

Military Intelligence detained Khartabil on March 15, 2012. He was held in incommunicado detention for eight months and was subjected to torture and other ill-treatment. He is facing Military Field Court proceedings for his peaceful activities in support of freedom of expression. A military judge interrogated Khartabil for a few minutes on December 9, 2012, but he had heard nothing further about his legal case, he told his family. In December 2012, he was moved to ‘Adra prison in Damascus, where he remained until October 3, 2015, when he was transferred to an undisclosed location and has not been heard of since. 

Reports that his wife received from alleged sources inside Military Intelligence suggest that since his disappearance he has been tried by a Military Field Court in the military police headquarters in al-Qaboun, which sentenced him to death. Military Field Courts in Syria are exceptional courts with secret closed-door proceedings that do not meet international fair trial standards. Defendants have no legal representation, and the courts’ decisions are binding and not subject to appeal. People brought before such courts who were later released have said that proceedings are perfunctory, often lasting only minutes.

Cambodian general jailed by civilian court, for a little while

The Cambodia Daily has this confusing report on the case of a brigadier general who was convicted in civilian court on charges of interfering in civilian law enforcement, but given a short sentence. Excerpt:

Military personnel, such as Brig. Gen. Prum Mony, are not au­thorized to participate in investigations into criminal cases. Article 609 of the criminal code states that unlawful interference in the discharge of public functions is punishable by between one and three years in prison. 

But at the municipal court on Friday, Presiding Judge Veng Hourt announced that while the defendant had been found guilty of the crime, he would serve a far shorter sentence. 

“We decided to imprison Pech Prum Mony for 18 months, but he is only required to serve 10 months,” the judge said, adding that the general would also be fined 2 million riel, or about $500. He gave no explanation for the re­duced sentence, which would see Brig. Gen. Prum Mony freed next month, as he has been in detention since his arrest in February. 

Contacted later by telephone, Judge Hourt declined to explain the court’s leniency.
“You don’t need to know,” he said. “This is an internal affair.”

Not so fast, Indian Navy women

A two-judge bench of the Supreme Court of India has issued an order staying the Delhi High Court's judgment opening the Indian Navy to women officers on a permanent commission basis. Details here. Excerpt:

"Pending further orders from this Court, we direct that such of the respondents (petitioners before the High Court) as were serving as short service commissioned officers in the Navy as on September 26, 2008, shall be allowed to continue on the terms and conditions applicable to them in that capacity. We further direct that such of the officers out of the respondents (petitioners before the High Court) as may have been released from service after September 26, 2008, upon completion of the short service commissioned tenure, shall be permitted to join back in terms of the order passed by the High Court and continue in service in that capacity," the bench said in its order.

No clemency for 4 Army Public School massacre perpetrators

The President of Pakistan has refused to grant clemency to four men sentenced to death following the Army Public School massacre last year. They were convicted in military courts authorized under the 21st Amendment and implementing legislation. Details here.

Transparency watch

U.S. Disciplinary Barracks
Fort Leavenworth, KS

The Council Bluffs (Iowa) Daily Nonpareil has this editorial on the recent Associated Press investigative report on transparency and the prosecution of child sexual offenders in the armed forces. Sen. Kirsten Gillibrand of New York, sponsor of military justice reform legislation that has not yet gained the needed 60 votes, has taken notice:

An analysis of currently available data obtained by the Associated Press through the Freedom of Information Act found that of the 1,233 inmates confined in the military’s prison network, 61 percent were convicted of sex crimes. 

In just over half of those cases, the victims were children.

Since the beginning of this year, children were the victims in 133 out of 301 sex crime convictions against service members – including charges ranging from rape to distributing child pornography.

While the numbers are shocking, even more shocking is the manner in which our military branches adjudicate the crimes and report the results of those crimes.

The military justice system operates independently of state and federal criminal courts. The U.S. Constitution mandates a presumption of openness in civilian courts – trials are open to the public, as are court filings, including motions and transcripts, with exceptions for documents that have been sealed.

Anyone can walk into any county or U.S. courthouse and ask to read a case file without providing a reason beyond curiosity. That openness is designed to provide accountability.

On the other hand, visibility in connection with military trials is minimal.

While brief trial results are now made public, court records and other documents are released only through Freedom of Information Act requests, requests that often require appeals and fees and, not uncommonly, months of waiting.

While military trials are technically “open,” as are civilian trials, they take place on military bases, which are closed to the general public.

Over the past five months, the AP has filed 17 separate requests under the Freedom of Information Act for documents from more than 200 military sexual assault cases that ended with convictions. The military services had provided complete trial records for five cases – less than a third of those sought – and partial records for more than 70 others.

The case of a Marine warrant officer offers insight into the military’s handling of sex crimes, including those in which the victims were children.

The Marine Corps summary of the court martial read, “At a General Court-Martial at Okinawa, Japan, (the accused) was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal.”

Through a Freedom of Information Act request, the AP learned the most significant detail missing from the Marine Corps’ brief public summary was any mention of a pretrial agreement limiting the Marine’s prison time to 20 years, not 144 as the service initially said. He pleaded guilty to 18 counts, including conspiracy to commit rape of a child.

He’ll do even less time if he is eventually paroled. In the military justice system, he could be released from prison after serving one-third of his 20-year term.

The investigation found that since the beginning of July, 31 soldiers, sailors and Marines were convicted of sex crimes against children. In 20 cases, there were pretrial agreements.

A leading critic of the Pentagon’s treatment of sexual assault, Sen. Kirsten Gillibrand, D-N.Y., called the AP’s findings about the number of child victims alarming and disturbing.

“There are just huge red flags and huge concerns about where justice is not being done,” Gillibrand said.

The lack of transparency in the military justice system serves only to hide the system’s shortcomings.

It certainly is noteworthy that over 60% of military correctional facility inmates are confined for sex offenses of one kind or another. 

Why is this case being sent to a military court?

The case of a Russian teen who killed a police officer and a teacher and took hostages is being sent to a military court for further proceedings. Why? Here is RAPSI's report:

The Moscow City Court Presidium on Friday revoked a ruling ordering Moscow school student Sergey Gordeev who shot two people in February 2014 to undergo psychiatric treatment, RAPSI reports from the courtroom. 

The case will be reconsidered by the Moscow Regional Military Court as Gordeev in particular stands charged with hostage taking. The teenager can get a prison term. 

The incident took place on February 3, 2014, when Sergey Gordeev, 15, brought a rifle and a carbine to school. He killed a police officer and a teacher, injured one more person and took hostages. 

The Investigative Committee found that the student fired at least 11 times from the small caliber rifle before he was arrested. 

The teenager partially admitted his guilt. The psychiatric evaluation showed that he is mentally fit. Last summer, the Moscow City Court confirmed the original court’s ruling that the student undergo compulsory medical treatment. 

In late September, relatives of victims filed a cassational appeal with the Presidium of the Moscow City Court. They requested that the original ruling of the Butyrsky District Court be overturned as well as the ruling of the Moscow City Court in the appeal. They wanted the case to be returned to the court of original jurisdiction for a review starting from initial proceedings.

It seems from this account that hostage-taking charges alone bring the case within the jurisdiction of the military courts. 

Expanded bench to hear key Indian case

The Tribune reports that on December 3 a larger bench of the Supreme Court of India will hear an important case about judicial review of decisions of the Armed Forces Tribunal:

The Supreme Court has referred the case pertaining to the jurisdiction of high courts over orders passed by the Armed Forces Tribunal (AFT) to a larger bench after observing that prima facie the apex court’s decision of March 2015 barring the high courts from hearing appeals against AFT orders may be contrary to the law laid down by of a seven-bench Constitutional Bench.

The larger bench would be constituted by the Chief Justice of India. Taking up a petition that sought that appeals against AFT orders be heard by the high courts, the SC has held that it would be appropriate that the matter be heard by a larger bench of three judges. The case would now be heard on December 3.

The SC judgement of March had ruled that high courts did not have jurisdiction to review AFT orders and any appeal against AFT orders would lay directly with the apex court.

Section 31 of the AFT Act provides that appeals cannot be filed in the SC unless the case involves a “point of law of general public importance”. The SC has also held that issues such as pension, promotions, pay scales, etc. do not fall in the category of “public importance”. The March order had virtually deprived serving and retired petitioners from the armed forces, many of them aged and disabled soldiers, the right to appeal against AFT orders, thereby making the AFT the first and last court to redress their grievances.

H/T to Maj. (ret) Navdeep Singh for bringing this development to Global Military Justice Reform's attention. 

SCC decides Moriarity and companion cases

Today's unanimous decision of the Supreme Court of Canada in R. v. Moriarity 2015 SCC 55 can be found here. Bottom line: the appeals are dismissed.

"[T]he appellants have failed to show that the prosecution under military law of members of the military engaging in the full range of conduct covered by ss. 130(1)(a) and 117(f) is not rationally connected to the maintenance of discipline, efficiency and morale regardless of the circumstances of the commission of the offence. The challenged provisions are therefore not overbroad."

Blogger David Dias has this comment on Legal Feeds. Excerpt:

Military personnel are subject to court martial for all federal offences, even when those offences have nothing to do with the accused’s military service.

That’s the ruling from the Supreme Court of Canada today. The court issued four related decisions dealing with the constitutionality of the National Defence Act, which mandates court martial for all federal offences.

In the decision, indexed under R. v. Moriarty, military officers convicted of various offences — such as fraud and drug trafficking — argued before the Court Martial Appeal Court that their Charter rights were being violated by “overbroad” provisions that denied them a jury trial for non-military offences. 

That argument was shot down decisively today. In a decision written by Justice Thomas Cromwell on behalf of a unanimous court, the SCC upheld the CMAC’s finding that NDA provisions mandating court martial are indeed constitutional in that they serve the purpose of maintaining discipline, efficiency and morale in the military service. 

“The objective of maintaining ‘discipline, efficiency and morale’ is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances,” the decision states. “The behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.” 

The decision, moreover, strikes down the doctrine of “military nexus,” which requires a connection, albeit a loose one, between the nature of the offence and the accused’s military service. Rather, the SCC finds that simply being a member of the military establishes the requisite connection.

Transparency editorial in Scranton Times-Tribune

The Scranton Times-Tribune has published this editorial, prompted by the Associated Press investigative report on the lack of transparency in the U.S. military justice system. The AP's main focus was on child sexual assault cases. The editorial concludes:

"Congress should ensure that the same openness standards that apply to civilian courts govern military courts — proceedings and filings. Egregious conduct should not be allowed to hide behind a uniform, and the military justice system must be accountable."

Alaska National Guard military justice bill

Here is the current working draft of legislation to update Alaska's state military justice code. Members of the Military Appeals Commission will have 6-year terms of office, and their decisions will be subject to review by the State Supreme Court. A report by Nathaniel Herz for Alaska Dispatch News can be found here.

Transparency in US military justice

The Associated Press has run this story about access to court records in the US military justice system. It is part of a larger AP investigative project on child sex crimes in the armed forces, described here and here. The authors are Richard Lardner and Eileen Sullivan. The opacity of the system is a major theme.

ABC News has posted a lengthy version of the AP account here. Excerpt:

While child sex crimes may not be swept under the rug, the Defense Department does not make it easy for the public to learn about them.

After DeSmit's conviction in January, the Marine Corps summed up the case in two sentences. 

"At a General Court-Martial at Okinawa, Japan, Chief Warrant Officer 4 D. E. DeSmit was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal," a summary of the court-martial released by the Marine Corps read. 

And that's all the service would have said publicly, had the AP not pressed for more. 

The Naval Criminal Investigative Service initially said releasing its 198-page investigative report on DeSmit would constitute "an unwarranted invasion of personal privacy." The AP appealed the denial, and the Navy judge advocate general's office overruled NCIS, declaring the agency's decision overly broad and instructing it to release all material within the report not exempted from disclosure. NCIS investigations, which include evidence from the crime scene and witness interviews, are not court documents but are used by military leaders to decide what action to take against a service member. 

NCIS blacked out all the names in the report, including DeSmit's. The AP identified him by the dates and events left in the document. 

The effect of the policy is an enhanced degree of privacy for convicted service members not available to civilian defendants. Most records from criminal cases in state and federal courts are public, although the privacy of the victims of violent crime is protected.

Where should this case be tried?

The Daily Star reports here that a civilian who cut a military policeman will be tried by a Bangladeshi military court:

The man who hacked a military police member with a sharp weapon at a checkpoint in the capital's Kachukhet on November 10 will be tried under military law, according to the statement of a case. 

Corporal Faruk Bhuiyan of military police lodged the case with Kafrul Police Station on Sunday night accusing Jamirul Islam Manik, 32, of the attack, OC Sikdar Shamim Hossain of the police station told The Daily Star last night. 

The case was filed under military law, he added. 

Jamirul attacked Samidul Islam, 27, with a sharp weapon at the checkpoint. Two army members, who were on duty with Samidul, chased the attacker and captured him with the help of police and locals from a house where he holed up for around 20 minutes, said witnesses. 

Samidul suffered injuries in the neck, cheek and fingers. He received treatment at Combined Military Hospital in the city. 

The accused was not handed over to police, said the OC. 

In a press release on November 10, the Inter Service Public Relations Directorate (ISPR) said a member of Military Police sustained minor injuries as a pedestrian attacked him with a sharp weapon while on duty in the Kafrul area in the morning. 

Other members of military police, who were on duty there, detained the suspected attacker. A probe into the incident was underway, added the release.

Progress in Indonesia

Human Rights Watch has posted this important statement on a trial in Indonesia:

Something remarkable happened last week in Indonesia’s easternmost Papua province. 

A military court convicted two soldiers of murder and aggravated assault for their role in the deaths of two civilians on August 28. The court sentenced First Pvt. Makher Rehatta and Chief Pvt. Gregorius R. Geta to prison terms of 12 years and 3 years respectively. Two other soldiers are still on trial for their role in a case in which the four soldiers, who were allegedly drunk, opened fire with assault rifles on a group of Papuans who were holding a local Thanksgiving ceremony in front of a church in Mimika regency. 

The case is notable because the perpetrators face punishment. The Indonesian government, which has deployed military forces in Papua since 1963 to counter a long-simmering independence movement, has for decades restricted official access to foreign media, diplomats, and nongovernmental groups in the province, fostering an environment of impunity for military abuses. Those abuses have often gone unpunished due to technical reasons: the 1997 Law on Military Courts allows investigations of military abuses that lack transparency, independence, and impartiality. But Indonesia has also long failed to properly investigate and prosecute alleged serious human rights abuses by members of its military, and in the rare cases where soldiers have been convicted by a military court, the sentences have been extremely lenient. 

So last week’s convictions are good news, but at best a start. December 8 marks the one-year anniversary of the killings of five protesters in Papua’s remote town of Enarotali. Witnesses told Human Rights Watch that security forces there fatally shot five people during a peaceful protest sparked by the beating of several children by some soldiers the previous evening. 

But one year later, those who killed those demonstrators remain at large. That’s despite the fact that there have been three separate official investigations into the shootings: by the police, by the national human rights commission, and by an informal military-and-police effort. The military has not cooperated with the national human rights commission inquiry, and the 1997 law blocks civilian investigators from access to military personnel at the scene of crimes. Not one of those investigations has made public their findings. 

That’s not good enough. Indonesian President Joko “Jokowi” Widodo told Papuans three weeks after the killings that he wanted the shooting “solved immediately so it won’t ever happen again in the future … as well as to find the root of the problems.” The failure of Jokowi’s government to keep this promise prompted an unprecedented statement from Papua’s Catholic diocese in July, demanding justice for Enarotali’s victims. Until Jokowi releases the results of those three probes and ensures all those responsible are prosecuted, military injustice in Papua will remain alive and well.