From our newsroom to yours

4 more 21st Amendment hangings in Pakistan

Four more men have been hanged following military court trials in Pakistan under the country's year-old 21st Amendment. Dawn has run this editorial. The amendment is supposed to sunset in a year's time. Thus far there is no sign that the civilian criminal justice process, whose deficiencies are said to have been a primary cause for ratification of the amendment, has been upgraded (or will be in time for the sunset). Dawn's latest editorial notes:

President Mamnoon Hussain had also promulgated an ordinance further revising the recently amended Army Act to ostensibly aid the functioning of military courts by allowing for trials in camera, i.e. without the presence of the public or the media, and over video link if necessary.

Postscript: The Senate, acting as a committee of the whole, has just approved a report titled "The Provision of Inexpensive and Speedy Justice." According to Dawn's account:

The report observed that the police’s failure to submit a challan [summons] in time is a leading cause of delays in the disposal of criminal cases.

It recommends the submission of a challan in 14 days, and states that the submission of a challan after the statutory period should be treated as inefficiency on the part of the station house officer concerned. 

The report has also proposed capacity building for investigation officers, prosecutors and judges of anti-terrorism courts, the formation of trained police forensic evidence collection units, and a mechanism for increased coordination between police and military-run intelligence agencies.

If police failures to issue summonses in a timely fashion are a leading cause of delay in the criminal justice process, what are the others, why has it taken a year to come to that conclusion, and can this be a plausible rationale for amending the Constitution to authorize the creation of special military courts with power to try civilians? What does "capacity building" mean in the last quoted paragraph? Starting from scratch?

Mix-up in Rwanda treason court-martial

How does it happen that defense counsel fail to show up for trial in a treason court-martial? Easy: don't tell them the case has been scheduled for that day. Details here. Excerpt:

Judge Maj Bernard Hategekimana said the case will proceed next year against prosecution demands that the lawyers be mandated to explain their absence. 

This is not the first time the lawyers have skipped court. In June, the defence lawyers were each fined $416 after the judge termed their action as contempt of court. 

In defence of their lawyers,* Col [Tom] Byabagamba, who was in court Tuesday together with his co-accused, argued that the case was to resume Monday, December 28, but was changed to the following day without their knowledge.

* That's a switch. [Footnote added.]

Two of the three accused men are retired members of the Armed Forces. 

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Military courts and pretrial confinement

There's a French expression, trompe l'oeil. It translates as "fool the eye" or "optical illusion." The phrase comes to mind in connection with this story about how an ostensibly civilian confinement facility in Thailand is actually a military-run operation on a military installation. Excerpt:

The authorities say the facility, hidden behind the low walls and trimmed hedges of the 11th Army Circle base near Bangkok's old city, is necessary for the efficient investigation of major threats to the kingdom. 

The government and army declined to comment on the facility, but the Corrections Department hosted a guided visit to the site for journalists in early December. 

Witthaya Suriyawong, the head of the department, rejected accusations that the jail is a military facility in civilian garb. While soldiers act as guards, the jail itself is administered by eight corrections staff, he said. 

"We are the prison that serves the Military Court," said Mr Witthaya. "In principle, police do the investigation." 

As reporters entered the bare cells, detainees sat cross-legged on the floor, facing silently away from visitors. 

The prison was needed to allow investigators easier and longer access to detainees, Mr Witthaya said. 

Even under martial law, imposed after the army seized power in May 2014 and lifted in April, lawyers say the military had mostly respected the legal requirement to either hand suspects over to the civilian authorities or release them after seven days. 

But the new jail, established within the military base under a decree issued on Sept 11, is run by the civilian Department of Corrections. That means detainees can be held there for up to three months. 

Rights groups say this is little more than a legal fig leaf for a facility aimed at keeping suspects under army control as they are railroaded through a system of military courts that have been used to try some civilians since the coup. 

"Legally, this place is under the jurisdiction of the corrections department, but in practice it is administered by the military," Sunai Phasuk, a researcher at Human Rights Watch, told Reuters.

Officer inmate may be sanctioned for speaking with a journalist

A weird case is reported by Air Force Times. Excerpt:

An Air Force officer being held at Naval Consolidated Brig Miramar, California, may face disciplinary actions for talking to an Air Force Times reporter by telephone, a brig spokesman said. 

Maj. Clarence Anderson III called Air Force Times on Monday and talked with a reporter about his plea for clemency. 

A Navy instruction prohibits prisoners from talking to media by telephone, said Brewster Schenck, a spokesman for the brig. 

"A disciplinary report was written this afternoon, but it's not yet been investigated, so it's in process," Schenck told Air Force Times on Tuesday. 

Schenck also said that prison officials looked into whether to move Anderson to segregation – for prisoners in a discipline status or awaiting discipline – but ultimately decided not to do so. 

Anderson was sentenced in April to 42 months in prison and dismissal from the Air Force after he was found guilty at court-martial of sexual assault and other charges. His attorney has requested that his conviction be set aside.

There's more here: an allegation that a witness in the case was paid $10,000 to testify.

Should prisoners be barred from speaking with the media? What correctional interest does such a rule serve?

Lèse majesté and the administration of justice in junta Thailand

"The fact that the opaque [military] court proceedings -- in certain cases were not open to the public, the inability to appeal, the difficulty in getting bail, have intensified the scariness and ugliness in the eyes of the human rights caucus."

Khan Kaen University's David Streckfuss commenting here on the Thai junta's reliance on military courts to enforce the lèse majesté law. 

Obama administration sends major military justice reform package to Congress

Hon. Andrew S. Effron

Drop everything. The Pentagon this morning submitted to Congress the administration's proposal for comprehensive changes in the Uniform Code of Military Justice. The recommendations reflect extensive review within the Executive Branch, which led to a variety of changes from the initial recommendations of the Military Justice Review Group. The effort was led by former Chief Judge Andrew S. Effron of the U.S. Court of Appeals for the Armed Forces. The final text is now on the Review Group's website. Among the headlines (and not getting into the numerous weeds):

• The President will have the power to establish criteria and tour lengths for military judges (Editor's note: this a very big deal and long overdue; Navy, Marine Corps and Air Force will finally have to get in step.)
• The President will be authorized to identify legal issues that can be resolved by military judges prior to referral (Editor's note: this sounds like a standing judiciary -- but without standing courts.)
• The armed services will be authorized to establish a military magistrate program, with magistrates performing roles, pre-referral, that are roughly parallel to the role of U.S. Magistrate Judges
• There will be a new form of judge-alone Special Court-Martial to try petty offenses (as defined by the President), with confinement powers limited to six months and no punitive discharge. A magistrate will be permitted to preside with the parties' consent
• The President will be required to issue non-binding disposition criteria. Cf. U.S. Attorney's Manual
• Article 32 will be amended to remove the requirement for a disposition recommendation; the focus will instead be on gathering information. The parties and victim(s) will be afforded an opportunity to make written submissions
• Investigative subpoenas will be authorized in connection with preliminary hearings and even before then (with judicial oversight even prior to referral)
• Fixed panel size: 4 for Special Courts-Martial, 8 for non-capital General Courts-Martial, 12 for capital General Courts-Martial. For non-capital cases, 3/4 vote to convict; for capital cases, unanimous to make a case death-qualified and, if the vote is not unanimous, 3/4 (8) to convict (Editor's note: "numbers game" implications.)
• Judge-alone sentencing by offense, as in civilian courts, with the judge deciding on concurrent/consecutive sentences
• The President will promulgate sentencing parameters and criteria, on the recommendation of a Sentencing Board (compare Federal Sentencing Guidelines); written reasons will be required for going above or below applicable parameter
• Convening authority may suspend the sentence or part thereof only if recommended by the military judge (in addition to cases in which the convening authority can currently suspend or mitigate)
• Plea bargains as in federal district court
• All cases with confinement in excess of of 6 months or a punitive discharge will be subject to appeal as of right by the service Court of Criminal Appeals (CCA)
• Repeal of the CCAs' affirmative duty to review the full record of trial, find proof beyond a reasonable doubt, lawfulness, and sentence appropriateness; review will be limited to issues raised by the parties and for plain error
• For sub-jurisdictional cases, discretionary review by the CCA (without the need for referral by the Judge Advocate General) (Editor's query: what is the standard for granting review?)
• No change in U.S. Supreme Court review of decisions of the U.S. Court of Appeals for the Armed Forces. This issue is discussed in the accompanying report. (Editor's note: oy. Time to get busy with Congress.)
• Most listed offenses under Article 134 will become separate punitive articles
• There will be a new clause in Article 134 picking up offenses applicable in the special maritime and territorial jurisdiction à la the Military Extraterritorial Jurisdiction Act
• New Article 93A for sexual misconduct by persons in authority
• New punitive article for retaliation against persons who report offenses
• Real time availability of court-martial filings à la civilian federal practice (Editor's note: Hallelujah.)
• Detailed collection of case information across services à la data gathering and analysis by the Administrative Office of the U.S. Courts and the Federal Judicial Center
• Periodic review by a standing independent body of outsiders (with staff and resources)
• Bread and water will no longer be an authorized punishment

The Review Group's second report, on changes to the Manual for Courts-Martial, will be made public following the completion of review within the Executive Branch.

Congratulations to the Review Group on an important contribution to the development of American military justice. Opinions will inevitably differ on elements of the administration's proposal (and its omissions), but there are numerous changes in it that plainly improve on the current statute. One now must hope for open, meaningful, unhurried hearings before the House and Senate Armed Services Committees. The proposal unveiled today should be the beginning of the legislative process, not the end.

Tunisian magistrates protest

The executive board of the Association of Tunisian Magistrates has issued a protest about the summoning of two lawyers before a juge d'instruction of the permanent military court. The board observed that military courts are exceptional courts whose jurisdiction must be limited to military offenses by military personnel. Details here en français.

President Xi speaks at military reform conference

Pres. Xi, front row, center

"The independent and fair exertion of judicial power by military courts and procuratorates will be ensured with adjustments to the military judicial system."

From this account of a conference on military structural reform attended by Chinese Pres. Xi Jinping

Military courts in the Occupied Territories

B'Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, has issued a report on the administration of justice in Israel's military courts in the West Bank. Excerpt:

The Military Courts Unit does not publish figures on the number of motions for remand put forward by the prosecution nor the number of motions approved by the courts, claiming that this information is not available electronically. However, partial figures provided to B’Tselem indicate that, with the exception of individuals accused of traffic violations, remand is the rule rather than the exception. The military prosecution routinely asks for remand in custody and the courts approve the vast majority of the motions.

Here is a link to the full text of the B'Tselem report "Presumed Guilty." 

How cases get picked for trial in Pakistan's military courts

Bowing to pressure from massive demonstrations in several cities and towns, Sindh authorities have agreed in writing to refer a case involving the late-2014 murder of Dr. Khalid Mehmood Soomro, a former senator and provincial leader of Pakistan's fifth largest political party, to a military court. The case had been pending in the existing anti-terrorism courts since May. Details here. Excerpt:

Workers of JUI-F [Jamiat Ulema-e-Islam – Fazl] staged a protest in Larkana, Sukkur and Hyderabad, demanding to include the murder case of Dr Khalid Soomro in military courts. 

The activists protested in Kandhkot for not sending Soomro’s murder case to military courts. The workers blocked main roads by burning tyres and chanted slogans against the government.

Blackman case submitted to CCRC

The Royal Courts of Justice, London

The case of Royal Marine Sgt. Alexander Blackman has been submitted to the Criminal Cases Review Commission. The way the submission was made -- i.e., very publicly -- has itself become a matter of contention, as this comment and string from The Herald indicates. The CCRC can refer the case to the Court Martial Appeal Court for further review.

Sgt. Blackman's sentence was previously reduced from 10 years to 8 on appeal.

High courts have limited review power over Pakistani military court cases

In an important ruling, a panel the Supreme Court of Pakistan has remanded 14 cases to the Lahore High Court to determine whether the decisions of military courts fell within the narrow scope of high court appellate review. Excerpt from The Nation:

The court noted that if their cases fall under any of the three grounds – mala fide, without jurisdiction and coram-non-judice (not before a judge), the high courts had powers to hear them. It ruled Justice Hamood-ur-Rehman’s judgment on Zia-ur-Rehman’s case was . . . settled law. 

Justice Azmat [Saeed] said majority judgments in 21st Amendment case permit high courts and the Supreme Court to review the judgment passed by military courts. 

The judge said the apex court in FB Ali vs Federation case, had held the high courts under Article 199 of the Constitution could interfere where proceedings in any court or tribunal are mala fide, without jurisdiction or coram-non-judice.

*  *  * 

Justice Sheikh Azmat Saeed remarked if the field general court martial passes an order in a divorce case, a high court could hear appeal against it.

AFT establishing new regional bench in Bengaluru

The Armed Forces Tribunal of India is creating a new regional bench. The New Indian Express reports:

To enable speedy disposal of cases filed by serving and retired officers of the armed forces and their families, the Circuit Bench of the Armed Forces Tribunal (AFT) will be set up in Bengaluru soon. 

A building inside the DGQA premises close to TV Tower in JC Nagar has been identified for housing the Circuit Bench. The entire process of establishing the bench is likely to be completed within a year. 

“Not many people are aware of the Armed Forces Tribunal or its sittings in the city. The process has been started to set up a Circuit Bench and once that is done, more people will be aware of it,” Justice S S Satheesachandran, Member (J) of the AFT, Regional Bench, Kochi, told Express. AFT Kochi has a jurisdiction of Kerala, Karnataka and Lakshadweep. 

Necessary modifications need to be made in the building to provide a courtroom, office space for the members and other staff, said Vice Admiral M P Muralidharan, Member (A). “Once it is established, we can have staff here, who can directly receive cases. Sittings will be more regular and frequent,” Justice Satheesachandran said. 

At present, in the absence of a bench, cases are heard once in two to three months at the Parachute Regiment and Training Centre in JC Nagar. Justice Satheesachandran and Vice Admiral Muralidharan are in the city to hear cases for three days starting Monday. 

During its sitting, the tribunal disposes of around five cases in a day. The number is much higher — around 30 cases a day — at the Regional Bench in Kochi. The tribunal deals with various cases related to persons subject to the Army, Navy and Air Force Acts and also to provide for appeals arising out of orders, findings or sentences of Court Martial.

When does discipline become torture/cruel, inhumane, degrading treatment?

In the judgment Quispialaya Vilcapoma v. Peru, issued on November 23, 2015, the Inter-American Court of Human Rights was confronted with the question when does physical discipline become torture or cruel and inhumane treatment in a military context.  The Peruvian military, which, like many others in Latin America, is now voluntary, attracts young men who have limited employment possibilities elsewhere.  In this case, Valdemir Quispialaya made some mistakes during target practice and his superior, Juan Hilaquita, struck him in the head as a disciplinary measure, an action that resulted in Quispialaya eventually losing sight in his right eye

The Inter-American Commission on Human Rights, which brought the case to the Court and decided it first, stated that Mr. Quispialaya had been the victim of a pattern of torture and cruel, inhuman and degrading treatment within the military dependencies which derived from an entrenched and erroneous interpretation of military discipline.  The Court, however, recognized the existence of  a context of physical and psychological mistreatment in the military service environment in Peru, arising from an entrenched culture of violence and abuse in the application of discipline and military authority, however it accepted the State's argument that there was not sufficient probative information to affirm that during this time there was a pattern or situation of generalized practice of torture, cruel, inhuman and degrading treatment related to military service.

Despite the fact that the Court did not find that there was a "pattern" of torture or ill-treatment, it gave importance to the suffering of the victim.  The Court found that the physical aggression  that led to the loss of his sight caused both physical and mental suffering to Mr. Quispialaya and was therefore removed from the category of "disciplinary" actions appropriate for military jurisdiction and became a violation of Mr. Quispialaya's human rights.  So the Court has narrowed the scope of military jurisdiction once more.  What looked like a case of military discipline between a superior and a subordinate in the military context, depending upon the consequences of the action for the victim, becomes a human rights violation.  The consistent jurisprudence of the Court has stated that human rights violations are to be tried in ordinary civilian tribunals and not under military jurisdiction.

Speedy trial in Somaliland

A military court in Somaliland has handed down a death sentence in a case in which a policeman killed a senior police officer. As we read this article, the accused was sentenced even before the victim was buried. The case led to demonstrations by relatives of the victim who were demanding blood, and there were a number of arrests. The decision is subject to appellate review.

How not to report on a judicial decision

The Express Tribune, a newspaper in Pakistan that is affiliated with The New York Times, has run perhaps the most superficial and least edifying report Global Military Justice Reform has ever read on a judicial ruling. Here is what appeared under the headline "Case closed: PHC upholds military court's judgment":

A division bench of the Peshawar High Court dismissed a writ petition appealing the court to set aside the death sentence awarded by a military court. 

The bench comprising PHC Chief Justice Mazhar Alam Miankhel and Justice Irshad Qaiser heard an appeal filed by Mashooqa Bibi, a resident of Bajaur Agency. 

The applicant contended that her family was living near the Pak-Afghan border where her brother Aslam Khan was arrested. At the time when he was arrested by the border forces, he was crossing the border from Afghanistan to Pakistan. 

She said the family did not know about the whereabouts of Aslam, and on September 22, they came to know from media reports that he has been awarded a death sentence. He was convicted of carrying out attacks on security forces. However, she said he was not involved in such activities. 

She asked the court to set aside the military court judgment and release her brother. However, the bench upheld the military court judgment and dismissed the petition.

(There was one more paragraph about an unrelated drug case in a different court. It was equally superficial.)

What issues were raised (other than a claim that the defendant "wasn't involved")? What were the court's reasons? Will the case be taken to the Supreme Court of Pakistan? This pointless article leaves the reader totally in the dark.

The Katanga Case: focus turns to domestic prosecution

Human Rights Watch's attention to military court proceedings continues to be highly impressive. The organization has just issued this statement concerning the prospect of domestic military justice proceedings against Germain Katanga, a former Democratic Republic of Congo officer, whose sentence in an ICC case is soon to expire. Also facing prosecution are three defense witnesses from the ICC case. But will the new DRC proceedings be fair? From the HRW statement:

Katanga’s lawyers said they understand that the Congolese military justice system intends to proceed with these outstanding criminal charges against him and recently requested the cooperation of the United Nations peacekeeping mission in Congo, MONUSCO, and the ICC in providing information. In accordance with the prohibition against “double jeopardy,” so long as the underlying allegations are not the same as those already litigated at the ICC, the national judicial system can pursue further charges, even if an individual has been tried at the ICC for other alleged crimes.

Given his military rank, Katanga will be tried before the High Military Court in Kinshasa. Three other men, Floribert Njabu, Sharif Manda, and Pierre-Célestin Mbodina, who appeared as witnesses in Katanga’s defense at the ICC, face charges in the same case and are waiting for their case to go forward before that court. There is no right to appeal High Military Court decisions, violating international fair trial standards under article 14 of the International Covenant on Civil and Political Rights, Human Rights Watch said.

The strange case of "General Hassan" gets stranger

On December 7 we noted the conviction of a retired Algerian general officer by a court-martial. The back story of that case is now becoming clearer: it's a tale of a crumbling regime headed by a longtime leader with grave health problems. The New York Times has the story here. The sequestration of the country's ailing president is reminiscent of the successful effort to keep people unaware of President Wilson's disability nearly a century ago.

Best wishes to our readers and contributors

Peacekeeper discipline and information flow

The UN's High Commissioner for Human Rights is taking off the gloves on peacekeeper discipline. According to this morning's New York Times:

Stung by a scandal at the United Nations over its failure to promptly protect child victims of sexual abuse by peacekeepers, the organization’s top human rights official said Tuesday that he had ordered subordinates to inform him immediately when allegations of such abuse first arise. 

The official, Zeid Ra’ad al-Hussein, the high commissioner for Human Rights, said his order applied to everyone down to the lowest-ranking field officers in his branch of the United Nations. It obliges them to jump the customary chain of command and communicate directly with him concerning instances of possible sexual abuse, even before all the facts are known. 

“They write straight to me,” Mr. Hussein said at the United Nations headquarters in New York. “Then the business of substantiating it, investigating it further, that can come, and I’m not going to interfere, but the thing is, I need to know right away.” 

Mr. Hussein said he did “not want to be in a situation where I read somewhere in the press, or I hear from another part of the U.N., that a human rights officer has begun to look into an allegation and I don’t know about it.”

It's a good step. But information flow is only part of the problem. What about training, monitoring of specific disciplinary actions and, in the end, sanctions against both offenders (possibly by host states) and troop contributing countries?

Haredi conscription remains a third rail in Israeli politics

The ultra-Orthodox community in Israel, having won a tough fight in the Knesset, are still objecting to the latest changes in conscription legislation. This report from Israel Hayom tells the story. Excerpt:

Under the previous conscription law, haredim [ultra-Orthodox] who avoided military service would have faced criminal sanctions as early as 2017, but according to the amended law, passed last month, mandatory haredi enlistment will take effect no earlier than 2020. It also stipulates that any punitive measures taken against haredi draft dodgers must not be taken before 2023. The law also lets the defense minister decide on the scope of haredi enlistment. The overall effect of the amendment means that haredim could enjoy exemptions well beyond 2023.

The can has been kicked down the road. 

Slow justice in Guinea

Six officers being held in pretrial detention since 2011 on charges of desertion and violation of orders are finally coming before a military court today in Guinea. The problem seems to have been that there was no existing military court to try them. Among the accused is a former chief of general staff of the Army. The case arises from an attack on the president's private residence. Thirty-three others were previously tried by the civilian court of assizes. Of note, the penalty for desertion is two months' confinement and six months for violating orders. Details here.

Trouble in Malta

Mrs. Michelle Muscat
First Lady of Malta

There's an odd case brewing in Malta. A gunner has gone to court to protest the cancellation of orders sending him to Sandhurst for a training course and other adverse personnel actions taken against him. It seems that military authorities disregarded his requests for redress, compelling him to go to law. Michelle Muscat, the wife of the prime minister of the Mediterranean island nation, has attempted, at the gunner's request, to mediate the issue, according to this report.

Commanders in chief and forum choice in Burma

Burmese military personnel . . . enjoy effective immunity as the commander in chief serves as final arbiter in matters of military jurisdiction. However, since 2011 the military commander has referred some cases of military personnel to be prosecuted in civilian courts for offenses related to sexual violence against women and young girls, use of child soldiers, and murder.

From this Human Rights Watch statement on 

immunity for former presidents, December 23, 2015

Prosecutorial independence comes to center stage in Canada

In H.M. The Queen v. Gagnon, 2015 CACM 2, the Court Martial Appeal Court of Canada yesterday declared that the right of appeal of the Minister of National Defence under § 230.1 of the National Defence Act is unconstitutional. The court suspended its declaration of invalidity for six months. It found that the provision at issue violated the right to be prosecuted by an independent prosecutor. The opinion of the court was delivered by Judge Guy Cournoyer, joined by Judge Alexandre Deschênes. Chief Justice B. Richard Bell concurred in part. Only the French version of the judgment has been released. Look for the English version in January.

We hope to have further commentary on this case, including its appealability to the Supreme Court of Canada, in the coming days.

Should Indian armed forces have a common code of justice?

Wing Commander (ret) U C Jha's Unification of the Army, the Navy and the Air Force Act, while written some time ago, is well worth re-reading given India's current consideration of military justice changes. It was published by the United Service Institution of India. Excerpt:

A uniform code would be more appropriate in view of the fact that the three Services are increasingly deployed on joint operations in India and abroad, for which they train together. Within joint command and units the basic principle should be that service personnel are subject to the same systems and the same rights and penalties, except where a special rule applicable only to the member of one Service is essential. 

The law is not static and needs to be amended at regular intervals to keep pace with the changes in the international norms and domestic law of the country. The piecemeal amendments over the years have brought about few changes but they have not been helpful in keeping service law in line with developments in civilian law. Due to bureaucratic apathy and non-priority to issues of military justice, amendment to the Service laws has taken inordinately long. The existence of separate Acts makes the use, interpretation and amendment of the Acts more complicated. It would be easier to modernise and amend a common code for the Services than to do so individually. . . . 

The modernistion and unification of the Army, the Navy and the Air Force Act should be undertaken keeping in view our own experiences as well as developments in other democracies. We cannot insulate ourselves from the changes in systems followed in other countries, especially because our forces are internationally recognized and are part of peacekeeping missions the world over. Therefore, there is a need to create a common code of justice, which will promote discipline in the Armed Forces.

ADF appeals order in homophobia case

The Australian Defence Force is appealing an order of the Federal Court directing the military to reinstate an Army Reserve major who made homophobic comments online. It's another illustration of the intersection of technology, free speech and military discipline. The circumstances are described here. Excerpt:

Bernard Gaynor was fired as a Defence Force major in December 2013 for making a string of "offensive and divisive" public statements about gay and transgender people, as well as adherents of Islam. 

"I wouldn't let a gay person teach my children and I'm not afraid to say it," Gaynor tweeted in January 2013. 

Later, he berated the ADF in a series of press releases for allowing its officers to wear their uniforms at Mardi Gras. 

He also engaged in a social media stoush with high-profile transgender Army officer Cate McGregor, and spoke out against the alleged violent threat Islam posed to Australia. 

The ADF sacked Gaynor after deeming his comments jarred with military rules, breaking a ban on posting material offensive towards any group based on personal attributes. 

However, a Federal Court judge this month found Gaynor's comments were made in a personal capacity and protected by the freedom of political communication, ordering his sacking be set aside.

The decision in Gaynor v. Chief of the Defence Force (No. 3), [2015] FCA 1370, can be found here. A subsequent order as to costs appears here.

Dreyfus trial anniversary

Capt. Alfred Dreyfus

One hundred-twenty-one years ago today, Captain Alfred Dreyfus of the French Army was convicted of treason by a court-martial. The case proved deeply divisive across French society. In due course he was exonerated, but not before he was forced to serve time at France's notorious Devil's Island prison. He died in 1935.

How to frustrate the right to appeal

It's really hard to appeal a court-martial if you cannot obtain a copy of the judgment. Consider this excerpt from a report concerning Nigerian Air Force courts-martial:

A Kaduna based legal practitioner, Barrister Biola Oyebanji has alleged that the Nigeria Air Force (NAF) General Court Martial (GCM) is frustrating the right of appeal of his clients by denying them access to a judgment delivered by the court recently. 

Barrister Oyebanji who is a leading defending counsel to six Air Force officers who are charged for age disparity, said the Nigerian constitution provides the provision that all judgments made by any court must be made available to all the counsels in the matter within seven days. 

He said that the GCM when approached by him for an interlocutory judgment, said they could only release such judgment with the permission of the conveners of the court which is the chief of air staff. This, according to him, is a "breach of the constitution".

A similar issue has arisen in Pakistan recently. 

Is it the Nigeria 66 or the Nigeria 70?

Femi Falana, SAN

Femi Falama, a leading Nigerian attorney who has been counsel in numerous military cases, has issued a statement indicating that there were 70, not 66, soldiers sentenced to death. According to this report in The Nation:

“Twelve soldiers were convicted in September 2014 and sentenced to death by a court-martial for demanding for weapons when the General Officer Commanding, the 7th Division of the Nigerian Army, visited a military camp in the war zone while 58 others were convicted and sentenced to death in December by another court-martial for demanding for weapons to fight the insurgents.

“Therefore, the number of soldiers who were sentenced to death by the two courts-martial is 70 and not 66,” he said. 

The lawyer gave the names of four convicts, who have been left out of the commuttal of the death sentence to 10 years’ imprisonment as LCP Bankole Taiwo, LCP Ayodele Olawale, LCP Isiah Osofu and Adebayo Gbenga. 

Although the soldiers were charged with mutiny, Falana said the only allegation proved against them at the courts-martial was that they protested the refusal of the military authorities to provide weapons to fight insurgency. . . .

Urging the Chief of Army Staff to further review the case of the convicted soldiers, Falana said: “In demanding for weapons, the soldiers were exercising their right under Section 179 of the Armed Forces Act, which provides that a soldier could make a complaint to his commanding officer without any fear of punishment for having made a complaint’’.

Corps Day for Indian Army JAG Corps

Today is Indian Army JAG Corps Day. Ajeen Kumar advises that the bill to consolidate and amend the law relating to the government of the regular Army was introduced in the Constituent Assembly on 21 December 1949 and passed by Parliament on 20 May 1950 as the Army Act, 1950 (Act XLVI of 1950). It came into force on 22 July 1950 on receiving the assent of the President.

Happy Birthday to all concerned. And thanks to Ajeen for calling this to our attention.

Postscript: a news article about Northern Command's observance of the day can be found here.

Recommendations of the UN's Independent Review Panel

Hon. Marie Deschamps

The following is an excerpt from Taking Action on Sexual Exploitation and Abuse by Peacekeepers, Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, Dec. 17, 2015. The blue-ribbon panel was chaired by Hon. Marie Deschamps, a former Justice of the Supreme Court of Canada. The other members were Yasmin Sooka, Executive Director of the Foundation for Human Rights in South Africa, and Hassan Jallow, the Prosecutor of the United Nations International Criminal Tribunal for Rwanda (ICTR).

5.  Prevention Through Individual Accountability

One of the most important ways in which the UN can prevent future instances of  sexual exploitation and abuse by peacekeepers is by holding those who sexually abuse civilians accountable for their crimes. It is only by seeing that such crimes will be met with accountability measures, including criminal prosecution, that individual troops will begin to take the zero tolerance policy seriously. At the same time, making accountability measures more transparent for victims will help to ensure that communities do not lose faith in the integrity of UN military missions. In this section, the Panel presents a number of mechanisms to improve accountability.

Several accountability provisions are already integrated in Memoranda of Understanding (“MOUs”) governing relationships between UN and troops under UN command. For example, TCCs are required to undertake to inform the UN of any actions taken to substantiate and address allegations. However, the Panel is not aware of any such accountability provisions in agreements between the UN and troops not under its command. From a human rights perspective this gap is hardly justifiable.

The UN should bridge the gap between the rules governing TCCs under UN command and those applying to troops not under UN command by negotiating provisions into its agreements with all TCCs that are consistent with the obligations under the existing SEA policies and human rights framework. TCCs should join in the fight against impunity by agreeing to include provisions ensuring accountability. More specifically, agreements between the UN and TCCs should include robust measures facilitating investigation and prosecution of crimes of sexual violence by the relevant TCC, the UN or the host state, and enabling victims, the local population,  and  the  UN,  to  know  whether  and  how  the  alleged  perpetrators  are  held

accountable. While control over the accountability processes will largely remain in the hands of the TCCs, the UN should play an active role in supporting them to conduct appropriate and sensitive investigations, to preserve evidence for use in judicial processes, and to communicate back to victims and the local population the outcome of legal proceedings. Recommendations with respect to accountability provisions are discussed further in the next section.

5.1. Revisiting the prosecution process

It is well-established that accountability processes currently in place for the criminal prosecution of individual peacekeepers for crimes of sexual violence are perceived to be ineffectual. A significant impediment to successful prosecution has been the agreement of the UN to date that TCCs retain exclusive jurisdiction to prosecute crimes perpetrated by their troops under the

TCC’s domestic law. These agreements are generally built into MOUs signed by the UN and the TCCs.318 This means that where the TCCs choose not to exercise their jurisdiction, or engage in flawed processes which may put victims and witnesses at risk, or intentionally interfere with the

process so as to exonerate the accused, the hands of the UN and the host country are tied. This problem was noted in particular in relation to another set of human rights violations in CAR, where the International Commission of Inquiry on the Central African Republic emphasized that “the existing arrangements for conducting inquiries and reporting on the results do not appear to provide any assurance that justice will be done, or be seen to be done, and fails to satisfy the rights of the family members of the victims to an effective remedy. In addition to calling for each of the relevant forces to take appropriate steps in this regard, (the Commission) considers that it

is imperative for the Security Council to address the issues raised by these allegations by putting in place new arrangements to guide such cases in the future.”319

In September of this year, the Secretary-General endorsed the Zeid Report’s recommendation for the use of on-site court martial proceedings in host countries.320 This would enable more victims and members of the affected community to participate and see justice being done. Concerns remain, however, that a judicial process conducted by the TCC’s own military may not

318 SOP on Conduct and Discipline of TCCs, art. 5; Report of the Special Committee on Peacekeeping Operations and its Working Group on the 2007 resumed session, A/61/19(Part III), 11 June 2007, adopting Annex: Revised Draft Model Memorandum of Understanding, art. 7 quinquiens (1).

319 Final Report of the International Commission of Inquiry on the Central African Republic, S/2014/928,

19 December 2014, para. 574 (p. 119/128).

320 Report of the Secretary-General on the Future of UN Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations, A/70/357-S/2015/682, 2 September 2015, para. 120; Secretary-General Tells Troop Contributors No One With Past Record of Abuse Can Ever Serve UN, Outlining Plans for Victim Trust Fund, SG/SM17081-PKO/520, 17 September 2015: available at http://www.un.org/press/en/2015/sgsm17081.doc.htm (accessed 29 November 2015).

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be sufficiently independent,321 or that it might lack the expertise required to respond to the unique needs of victims of sexual abuse, children in particular.322 TCCs may also oppose such

proceedings taking place in the host country rather than in their own domestic courts. Given this range of concerns, it seems likely that the proposal will continue to face significant opposition from TCCs and victims’ advocates alike. Moreover, even if the political will can be found to support on-site court, consideration also will need to be given to ensuring that these proceedings are open to the public, except where legitimate protection concerns are demonstrated (such as in the case of child victims).

Given these challenges, alternative mechanisms must be considered in order to ensure respect for human rights and due process in the context of the investigations and prosecutions, and to allow victims and affected communities greater access to efforts to hold perpetrators accountable.

In order to reduce the instances where the TCC does not follow up on allegations (or is perceived not to have followed up), the UN should consider building on the model status of forces agreement (“SOFA”) adopted by the North Atlantic Treaty Organization (“NATO”).323 Where the NATO SOFA applies, primary or subsidiary jurisdiction is established over selected

crimes committed in the host state, depending on the specific nature of the offense. If the country that has primary jurisdiction chooses not to exercise it, then the other country may choose  to  exercise  its  subsidiary  jurisdiction.324    NATO  SOFA  also  provides  for  mutual

assistance between the TCC and the host state in carrying out the investigation and sharing information.325

This approach is particularly apposite given the gap in impunity that arises as a result of the unwillingness or inability of some TCCs to exercise their jurisdiction in a timely manner. Following on the NATO SOFA model, TCCs could be given primary, but not exclusive, jurisdiction where one of the TCC’s troops is alleged to have committed sexual violence in the host state in contravention of the host state’s domestic laws. However, agreements with TCCs should provide that, if the TCC fails to take prompt action to investigate the reported violations and prosecute suspects within a specified period, the TCC would be deemed to have waived its primary jurisdiction. Host countries—with, if necessary, the support of the UN—would then be

321 See OIOS 2015 SEA Evaluation Report, para. 25.

322 See OIOS 2015 SEA Evaluation Report, para. 25 (noting that investigation standards varied greatly with some “considered very poor”).

323 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, 19

June 1951 (last updated 14 October 2009) (“NATO SOFA”), available at http://www.nato.int/cps/en/natohq/official_texts_17265.htm (accessed 28 November 2015). 324 NATO SOFA, art. VII(3).

325 NATO SOFA, art. VII(6)(a).

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free to exercise subordinate jurisdiction over the crimes committed within their territory under the host state’s domestic law. Consistent with its human rights mandate, the UN should monitor proceedings in either the TCC or host state to ensure compliance with prevailing international standards, particularly with respect to the protection of victims of sexual violence.

Modifications to the agreements with non-UN command troops are critical to any effort to reduce sexual exploitation and abuse by peacekeepers going forward. Sexual violence in peacekeeping operations will not end until each and every soldier understands that such crimes will be met with legal consequences. This requires a coordinated effort by the UN,  TCCs and, when possible, host countries, to ensure that perpetrators are prosecuted in a timely and effective way by the TCC, or in default of which, the host country.

The Kalach case: interview with NYT reporter

Democracy Now! has posted this interview with Nicholas Kulish, lead reporter on the recent New York Times investigative report on the May 2012 Kalach (Afghanistan) incident, its disclosure and its aftermath. From Democracy Now!'s introduction:

[W]hat happened after the incident has many military justice experts questioning whether Navy commanders worked to cover up the case. Four U.S. soldiers working with the SEALs at the outpost reported that they witnessed the abuse, but Navy commanders chose to deal with the matter in a closed disciplinary process, one usually reserved for minor infractions. The SEALs were cleared of any wrongdoing. Two of the SEALs implicated in the abuse of the detainees and their lieutenant have since been promoted, despite calls by one commander to have them forced out of the SEAL team.

The Times must have received a great deal of mail in response to the lengthy article it ran. Here is a Letter to the Editor that made the cut for the hard-copy paper (as well as online):

To the Editor: 

As a retired Navy master chief petty officer, I take great exception to your reporting of one possible occurrence of disobedience and misbehavior by the Navy SEALs. Why not choose to focus on the good that these warriors do around the world instead? 

These are difficult times, and we need young men to face terrible circumstances around this messy world we live in. We repeatedly call on our special operations community to engage the enemy in less than favorable situations in lands far away from home at a moment’s notice. 

Instead of reporting about men like Petty Officer Michael Monsoor and Lt. Michael Murphy, Navy SEAL Medal of Honor recipients who gave their lives for their country, you choose to invest your investigative energies into a negative aspect of warfare. We should focus on the men who routinely demonstrate honor, courage and commitment every day they put on their uniforms. Shame on you, New York Times. 

ANTHONY D. LEDERER
Sacramento

Perhaps the Times's Public Editor will comment on this.

No word yet on whether the Navy will reopen the case.

What happens next in the case of the Nigeria 66?

Chidi Odinkalu, Ph.D.

Now that the Chief of Army Staff has commuted to 10-year terms the death sentences that had been imposed on 66 Nigerian Army soldiers, what happens next? ThisDay has the story here:

[T]he immediate past chairman of the Governing Council of the National Human Rights Commission, Dr Chidi Odinkalu, faulted the decision to commute the death sentences, saying it is a hasty action that pre-empts pending law suits on the matter. Odinkalu told THISDAY by telephone that the timing of the military’s intervention in the case was inappropriate since the soldiers had not exhausted the appeal process. He noted that prerogative of mercy ought to come after the soldiers have exhausted the appeal process up to the Supreme Court. 

Odinkalu wondered what would happen if either the Court of Appeal or Supreme Court overturns the convictions. "What becomes of the commutal?" he asked, adding, “Why the haste? Prerogative of mercy comes after the appeal process has been fully exhausted. This is a troubling pattern of illegality and I think there is a need to advise the president appropriately.” 

However, a Senior Advocate of Nigeria, Mr Sebastine Hon, applauded the replacement of the death sentences with jail terms. He commended the Nigerian Army for having a human heart. Hon said while he was not justifying the actions of the affected soldiers, the authorities might have come to the realisation that the soldiers were forced to do what they did because they were starved of the needed equipment to fight. He advised any of the soldiers who had filed an appeal to file a notice to amend their notices of appeal to reflect the commuting of the sentences. That would enable the appellate court to reflect on the current position when delivering final judgement, he pointed out.

The question -- it seems to the editor -- is whether commutation of the death sentences exhausts the availability of executive clemency or whether further exercises of the prerogative are possible even after the completion of appellate or collateral review in the courts. It is difficult to see why further clemency could not be granted. For example, suppose a person whose death sentence had been commuted to a term of years thereafter amasses a spotless record as a prisoner. Why wouldn't further clemency be possible? If I were one of the affected soldiers I would be relieved to know execution was no longer on the table, and look forward to the prospect of further judicial or executive relief.

Reporters' privilege in Chile?

Reporters Without Borders has complained that Chile's military justice system (which lacks jurisdiction over civilians) has brought pressure to bear on journalists to reveal their sources in connection with a corruption and embezzlement investigation. Details here.

Clemency granted in 66 Nigerian capital cases

The Chief of Army Staff in Nigeria has granted clemency to 66 soldiers who had been sentenced to death. The soldiers' sentenced have been commuted to 10 years' imprisonment. Details here. The cases remain subject to review in court, so further relief may lie ahead.

Transparency @ Guantánamo

Gen. John F. Kelly, USMC

Charlie Savage of The New York Times reports here that Gen. John F. Kelly of the U.S. Marine Corps has issued a new rule that limits reporters wishing to visit Guantánamo Bay to four "media days" per year. The story notes that "General Kelly previously decided in September 2013 to stop telling reporters how many detainees were participating in a hunger strike each day." A number of news outlets have asked that the new rule be reconsidered.

Upcoming for your military justice bookshelf

Chris Bray

On May 12, 2016, W.W. Norton & Co. will publish Chris Bray's 400-page Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond. Amazon.com is taking pre-orders here. The list price is $27.95 for hardcover or kindle editions; a little less on Amazon. According to the Amazon site:

With a great eye for narrative, historian Chris Bray (himself a former soldier) tells the sweeping story of military justice from the institution of the court martial in the earliest days of the Republic to contemporary arguments over how to use military courts to try foreign terrorists or soldiers accused of sexual assault. Bray recounts the stories of famous American court martials, including those involving President Andrew Jackson, Gen. William Tecumseh Sherman, Lt. Jackie Robinson, and Pvt. Eddie Slovik; he explores how encounters of freed slaves with the military justice system during the Civil War anticipated the Civil Rights movement; and he explains how the Uniform Code of Military Justice came about after World War II. Throughout, he shows that the separate justice system of the armed forces has often served as a proxy for America’s ongoing arguments over equality, privacy, discrimination, security, and liberty.