Sikh West Pointer sues

A Sikh graduate of the U.S. Military Academy at West Point has sued the Army over a decision not to afford him permanent permission to wear a beard and turban, as if required of observant members of the Sikh faith. Details here.

The complaint in the U.S. District Court for the District of Columbia from Capt. Simratpal Singh, a West Point graduate and Bronze Star recipient, comes after the Army signaled it didn't plan to make permanent an accommodation letting him wear a beard and turban, his attorney Eric Baxter said. 

"Capt. Singh had every expectation that the Army would grant his exemption [permanently]," Baxter said in an interview with Military.com. "And then suddenly on Friday night, he found out he's going to be forced to take extraordinary, nonstandard testing over the course of three days to determine if he's going to have to cut his hair and shave his beard to remain in the Army." 

The service has ordered Singh to report to Aberdeen Proving Grounds in Maryland on Tuesday morning to begin three days of tests to ensure he can safely wear a helmet and gas mask, according to Baxter, an attorney with The Becket Fund for Religious Liberty, a nonprofit, public interest law firm in Washington, D.C., which specializes in cases dealing with free expression of religious traditions.

To the Editor, who wore a beard (not for religious reasons) for a good part of his three years, seven months and eight days of active duty, this controversy seems unnecessary as well as unfortunate. The photo above, of French Foreign Legion sappers, seems pertinent even though those depicted are presumably not Sikhs. Other photos depict Sikh troops of the UK and India. Would you want to be on the other side from any of these soldiers?

Postscript: New York Times coverage here.

What if he wins?

Donald J. Trump

Global Military Justice Reform doesn't do politics, but we do try to follow military justice. Which brings us to comments recently offered by retired General (and former CIA Director) Michael V. Hayden on the Real Time with Bill Maher television show. Gen. Hayden commented that if Donald J. Trump, a [the?] leading contender for the Republican presidential nomination, were elected president and ordered the torture of captives (as he has publicly said he would do), the military would not obey such an illegal order.

Discuss among yourselves.

Not military justice, but . . .

Controversy continues to swirl in New Zealand over a failed defamation case against a journalist. Excerpt:

A failed challenge to the credibility of a journalist by the Defence Force has blown up in its face, cost taxpayers more than $1 million and resulted in an Afghan police unit commander whose evidence did not survive scrutiny seeking to stay in New Zealand as a refugee.

Details about the case can be found in this report from The Otago Daily Times.

During the three-year battle, the Defence Force used 15 lawyers at a cost of $643,000.

Mister Prime Minister, permission to prosecute?

Sunday's Zaman (Turkey) reports:  A new draft proposal that will demand the consent of both the defense minister and the prime minister in order to prosecute soldiers charged with torture or ill-treatment while serving in the army could have terrible consequences, according to human rights advocates and security experts. The draft legislation prepared by the Ministry of National Defense (MSB) and submitted to the Justice Ministry states that “all members of the Turkish Armed Forces (TSK) engaged in the struggle against terror” should only be tried with consent.

Peacekeeper babies

The Washington Post has a story this evening about a growing U.N. scandal over "peacekeeper babies." The Post's paywall prevents Global Military Justice Reform from providing a link, but if you Google "peacekeepers babies" the article should come up for you.

Guantánamo, again

Professor Jonathan Hafetz has an insightful piece over at Just Security: "Torture and Transparency in the Military Commissions." Conclusion:

In short, facts matter. They matter not only to determinations of guilt and the imposition of sentences on individual defendants, but also to the integrity of the proceedings themselves. While stipulations designed to avoid unnecessary litigation represent a sensible step forward, they should not short-circuit a defendant’s right to obtain information as relevant as the details of his prior torture by the same government seeking to convict and execute him. History teaches that the public (or even just the defense lawyers) will know the full scope of the horrors of the CIA torture program only if all of the information is disclosed. And the full scope of horrors ultimately matters for all three of the commissions’ stated goals: fairness, transparency, and justice.

Administration plan for closing Guantanamo Bay detention facility

President Barack Obama's plan to close Guantanamo was announced on February 23, 2016. Here is the White House's announcement. Here is the plan itself. Mr. Obama's term expires on January 20, 2017.

Human rights in Mexican law

The American Society of International Law website has this excellent report by Global Military Justice Reform contributor Christina Cerna on the status of human rights treaties in Mexican domestic law. She concludes:

In compliance with the Inter-American Court’s judgment in Radilla Pacheco, on June 13, 2014, the Mexican Congress published its military justice reform decree in the Official Gazette (Diario Oficial de la Federación). This decree provided, inter alia, that human rights violations and other crimes committed by military personnel against civilians will now be subject to prosecution in civilian, not military courts. The Inter-American Court, in Radilla Pacheco and a number of other cases, has consistently held that military courts do not have the competence to investigate, prosecute and punish the perpetrators of human rights violations. Taking human rights cases out of the hands of military courts is a major strike against the impunity inherent in the Mexican military justice system. 

Human rights groups have expressed concern about provision of reformed Article 1 of the Mexican Constitution that the enjoyment of human rights may be restricted or suspended, in cases and under conditions established by the Constitution, which was echoed in the Supreme Court’s judgment, and has been interpreted by Amnesty International, for example, as a step backwards in the protection of human rights.[6] The charge is that the Supreme Court should have affirmed the pro persona principle in this context rather than emphasizing the alleged priority of the restrictions in the Constitution over international treaties. 

These are issues that will be resolved in the future. Suffice it to say that Mexico has engineered an extraordinary transformation of its internal legal system placing human rights at the center of concern of its Constitution and laws. Its acceptance of the obligatory force not only of the judgments but also the jurisprudence of the Inter-American Court of Human Rights is a shining example of best practices.

"Mistakes were made"

An Egyptian military court has mistakenly convicted a toddler. The New York Times has the story. Here's a lede you don't see every day:

"As alibis go, this one would seem to be airtight: Your honor, my client was only a year old at the time of the crime.

"But it did not stop an Egyptian military court from convicting the accused, a boy now 3 ½, of killing three people, carrying guns and firebombs, blocking a road with burning tires, and trying to damage government buildings — and sentencing him to life in prison."

Amnesty International report on Chile

Amnesty International's 2015-16 report on conditions in Chile includes the following:

Security forces and the military justice system 

Cases of human rights violations involving members of the security forces continued to be dealt with by military courts, despite public commitments by the authorities to reform the relevant legislation. The Supreme Court, however, upheld the right to due process and international human rights obligations in specific cases when deciding to transfer such cases to the jurisdiction of ordinary courts.1 

In May, the Martial Court (the appeal court in the military justice system) reduced the sentence imposed on a former police officer for fatally shooting 16-year-old Manuel Gutiérrez Reinoso and injuring Carlos Burgos Toledo during a protest in 2011, from three years and 61 days to 461 days. The Martial Court disregarded the military tribunal’s finding that methods short of the use of firearms were available to disperse the demonstrators, instead stating that there was no proof of intention to cause injury on the part of the officer.2This decision was confirmed by the Supreme Court in December. 

Investigation into the death of Iván Vásquez Vásquez in police custody in 2014 in Chile Chico, Aysén region, made some progress. The family requested a third, more comprehensive, autopsy, given the discrepancies between two previous autopsies. In July the Martial Court agreed to conduct this autopsy, which was still pending at the end of the year. 

A few cases of police violence were dealt with by the ordinary courts. Among them were the cases of Nelson Quichillao, a mineworker who was shot dead by the security forces during a protest in July in El Salvador, Atacama Region, and that of 28-year-old student Rodrigo Avilés who was seriously injured by police water cannon in May. Investigations into the cases were continuing at the end of the year. 

In September, the Special Rapporteur on the rights to freedom of peaceful assembly and of association called on the authorities to end the use of military courts to deal with cases of human rights violations.

Capital cases to be heard by expanded bench in Pakistan

A five-member bench of the Supreme Court of Pakistan will hear challenges to several military court capital cases on March 7, according to this report. Excerpt:

The appellants alleged that the convicts were not present during the trial conducted by military courts. 

No chance was given to cross-examine witnesses nor the witnesses were produced before the trial court, while the Peshawar High Court had ignored these facts. 

They claimed that the army personnel produced the convicts hand cuffed and eyes blinded with a cloth covering their face in the military courts therefore the convicts did not see the court with their own eyes. 

The convicts were asked to put thumb impression on papers, while the convicts did not know what sort of papers were forwarded to them, they further alleged.

The previous stays of execution have been extended. The 21st Amendment, under which civilians are subject to military trial, sunsets in less than a year.

Colombian reform law upheld

The Constitutional Court of Colombia has upheld a measure that reform's the country's military justice law. A challenge to an earlier reform law had been rejected on procedural grounds. The new measure does not provide blanket immunity for soldiers involved in so-called "false positives," the term used for extrajudicial executions. Crimes committed by soldiers, such as murder and offenses against the protection of information and data, including against civilians, may be tried by military courts.

According to the report cited above, the vote was 5-4, but this article reports that only one justice dissented.

Check here for Global Military Justice Reform contributor Christina Cerna's earlier post on the case.

A proper use of pretrial confinement?

In the U.S. military, pretrial confinement is reserved for those who are a flight risk or at risk of committing more crimes. It may not be used as a punishment, and it may not be used when a person exercises their rights. In Uganda, All Africa reports:

The General Court Martial will today determine the fate of the former coordinator of Intelligence Services, Gen David Sejusa, alias, Tinyefuza, who is in jail for allegedly participating in political activities.

The Makindye-based Military Court set today for ruling after submissions by Gen Sejusa through his lawyers in which he asked court to release him on bail pending trial.

Gen Sejusa was sent to Luzira prison on February 9 after he declined to plead to charges of participating in political activities and making public statements contrary to the military law.

Apparently a lack of transparency

Photo: Express

In the U.S. we have some complaints about the lack of transparency in courts-martial. But the U.S. does not compare to that apparently happening in Pakistan. The Express Tribune (Pakistan) reports:

The Sindh High Court (SHC) issued on Monday notices to the interior ministry and others for details about the number of suspects being tried under terrorism charges by military courts across the country.

During Monday’s hearing, the petitioner told the bench that around 3,000 suspects are being tried by military courts in the country, according to media reports.

Four military courts, two in Karachi and one each in Hyderabad and Sukkur, were established in the province under the 21st Amendment. Around 33 cases relating to terrorism and militancy have so far been transferred to the military courts in Karachi.

Liberian officer under investigation for recruiting extortion

The Bush Chicken (we are not making that name up) reports here that an officer in the Liberian Armed Forces is under investigation for extortion from potential recruits. Excerpt:

The AFL Chief of Staff acknowledged that missteps are expected along the way of developing a professional army; however, such should not be used to degrade the entire Armed Forces of Liberia. 

He said unprincipled members of the AFL would be dealt with according to the Uniform Code of Military Justice of Liberia.

2015 Military justice data for Irish Defence Forces

The Irish Examiner has this worthwhile short report about Irish military justice in 2015. The big news: the system had 10 courts-martial last year. (Sounds like a small number.) In addition we learn:

Two appeals were made regarding Summary Courts Martial in 2015, both of which were successful. A trooper had determination and punishment on charges of ill-discipline quashed, and a corporal successfully appealed two determinations that he had disobeyed the lawful command of a superior officer.

SEDENA dedicates military justice center in Tuxtla

The Mexican Secretariat of National Defense has just dedicated a new Military Justice Center in Tuxtla. Video is available here and a news report here (both in Spanish).

PTSD and "bad paper" discharges: is help on the way?

The New York Times has this report on efforts being made to ease the path for U.S. armed forces veterans with stigmatizing "bad-paper" discharges and PTSD diagnoses. Excerpt:

Congress created military review boards after World War II to correct wartime missteps, but observers say this has rarely happened in recent years. In 2013, the Army Board for Correction of Military Records, the supreme authority in the Army’s review agency, ruled against veterans in about 96 percent of PTSD-related cases, according to an analysis done by Yale Law School’s Veterans Legal Services Clinic.

“The boards are broken,” said Michael Wishnie, a Yale professor who oversees the clinic. “They are not functioning the way Congress has intended.” 

He added that the boards’ decision-making process is often opaque, and that they have done little to educate veterans on the upgrade process.

H/T to Marian Messing for calling this article to the Editor's attention. 

Instructor defrauds recruits . . . why was the case not tried in the Court Martial?

The Northern Echo reports that

a gurkha corporal in charge of young Nepalese recruits has appeared in court charged with fraud. Surya Prakash Hanggam, 35, who was a corporal with Royal Gurkha Rifles, acting as an instructor for young recruits at the Infantry Training Centre in Catterick Garrison early last year, has pleaded guilty to committing fraud by false representation in using his position to take money from the trainees. Mr Hanggam, now based at Beckwith Green in Folkestone, Kent, appeared at Northallerton Magistrates’ Court on Monday, February 15 and he will be sent to Teesside Crown Court on Monday, March 14 at 10am for sentencing. Mr Hanggam is charged with taking £18,189.99 from 17 victims between February 28, 2015 and March 31, 2015 at Catterick Garrison. An Army spokesman said he returned to his unit in Kent in May 2015.

He was granted unconditional bail until Monday, March 14. The Royal Gurkha Rifles currently have a jungle role battalion permanently based in Brunei and a light role battalion in the UK.

Given the close military nexus and the even greater breach of trust involved when an instructor defrauds recruits under his care this begs the question. Why on earth was this not prosecuted by the Service Prosecuting Authority in the Court Martial? So often on this blog we ask where the military nexus is but here it is as clear as possible.

A look at the Definitive Sentencing Guidelines which will be used in the Crown Court this Corporal will be looking at a sentence of between 26 weeks and three years imprisonment. The starting point is likely to be near the top end of the scale given the sums involved and the serious breach of trust. The Corporal will then be entitled to a one third discount for his early guilty plea. It is worth noting that sentences of under two years can be suspended but that is a matter for the Judge. I would expect either an administrative discharge or possibly even separate proceedings in the Court Martial leading to a dismissal. If further proceedings are brought I would expect them to be brought under s.19 Armed Forces Act 2006 (Conduct prejudicial to good order and discipline). 

Thanks to Anthony Paphiti for bringing this to my attention on Twitter.

Military justice and politics in Lebanon

Lebanon's Minister of Justice Ashraf Rifi resigned today, in part over the decision of the Military Court of Cassation to release former Information Minister Michel Samaha on bail. The Samaha case had sparked discussion of abolition or reform of the military court, but so far that has proven to be just talk. Details here. Excerpt:

The release on bail of ex-information minister Michel Samaha last month after serving eight months of a 4 1/2 year jail sentence for smuggling explosives from neighboring Syria and planning attacks drew anger and condemnation from Syrian President Bashar al-Assad's opponents in Lebanon.

Lebanese military courts exercise jurisdiction over civilians, contrary to human rights norms. Plainly, larger forces than the need to reform military justice are at work in M. Rifi's resignation, but it is rare that anything having to do with the subject leads to political changes such as today's. Watch this space.

Maj Gen Charles Blackader -- a life

The Irish Independent has a worthwhile brief "life" of Major General Charles Guinand Blackader, by Robert D. Marshall. Gen. Blackader served on courts-martial that tried civilians in an effort to put down the Easter Rising during World War I.

Feb 19: Today is the Day of the Mexican Army

Speeches on Mexican Army Day congratulating the military for participating in the job of providing internal security, the fight against drug trafficking and organized crime, and peace operations abroad, some are suggesting, should be complemented by a discussion about the modernization of the legal framework that regulates the activities of soldiers outside their barracks and that modernizes the paralyzed system of military justice.

Last year reforms to the Code of Military Justice removed cases of human rights violations committed by members of the military against civilians from military jurisdiction and transferred them to civilian jurisdiction, as required by the Inter-American Court of Human Rights judgments against Mexico. These reforms are considered insufficient.

A group of lower house Parliamentarians from the PRI (the Party of Peña Nieto, the President of Mexico), headed by Carlos Sarabia Camacho, are promoting the approval of a package of reforms to the Code of Military Justice, which they consider obsolete. Sarabia is an ex-Captain and the only member of the Mexican Parliament with a military background.

Sarabia noted: "We have to reach the point where there is certainty and that the military tribunals have the necessary tools, and above all, are firm and clear about what they are doing. A member of the military, a lieutenant, now doesn't know, when he is going to carry out a mission, if he will be judged by military or civilian jurisdiction, and this creates uncertainty."

The modernization of the military legal code is urgent today Sarabia emphasized because there are cases in which members of the Army are involved, like Tlatlaya and Calera in Zacatecas, in which charges have been brought and proceedings have begun against active duty military officials. On June 30, 2014, orders were given to the Mexican military "to take out criminals" in the Tlatlaya area and some 22 people were killed. The attorney general charged seven of the military officials with the killing of eight people. When the military learned of this it opened parallel proceedings under military jurisdiction. In the municipality Calera in Zacatecas, four members of the military were detained in a military prison for having raided seven homes in an operation conducted on July 7, 2015, in which the military patrol was searching for arms and drugs that resulted in the detention and disappearance of seven laborers. The bodies of the seven, subsequently, were found. The investigation is being carried out by a military prosecutor but may be turned over to civilian authorities.

Minister's power of appeal at issue before Supreme Court of Canada

As reported in a Global Military Justice Reform post dated January 18, 2016 the Court Martial Appeal Court of Canada (CMAC) in R. c. Gagnon CMAC 577 and CMAC 581 struck down the power of the Minister of National Defence pursuant to Section 230.1 of the National Defence Act (NDA) Section 230.1 of the National Defence Act (Act) to launch appeals to the CMAC of acquittals, stays and sentences.

In R v. Gagnon, the CMAC ruled that, at every step of the judicial process, section 7 of the Canadian Charter of Rights and Freedoms (Charter) guarantees an accused the constitutional right to an independent prosecutor. it concluded that section 230.1 of the Act violates section 7 of the Charter and is not a reasonable limit to that section which can be justified in a free and democratic society.

The three judges deciding Gagnon suspended their constitutional declaration of invalidity for six [6] months (that is until June 2016) .

Pursuant to Section 245 of the NDA on February 9, 2016 the Minister of National Defence has appealed the CMAC decision to the Supreme Court of Canada.

See: Sa Majesté la Reine et al. c. J.G.A. Gagnon et al. - Case 35844

Canada's military summary trials are frozen in time

In recent years, the European Convention on Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, for example the United Kingdom and Ireland, to completely overhaul the summary trials process. These judicial rulings have brought the summary trial process into compliance with the ECHR which held that no one may be deprived of his liberty, except by a competent and impartial tribunal, and that the accused may, on a criminal charge, declare his right to a fair and public hearing by an independent and impartial tribunal as established by law. Given that Canada's Charter of Rights and Freedoms is analogous in values and terms to the ECHR, we know of only one reason why similar reforms could not have already been incorporated in Canada’s military justice system: continuing military recalcitrance to democratic reforms and its tacit acceptance by the political class.

In an article published in the Parliamentary Precint weekly "HILL TIMES" the authors Michel Drapeau and Joshua Juneau argue that the Canadian military summary trials are ancient, outdated, and unfair—and they are insulated from judicial scrutiny.

The authors conclude that immediate reform is necessary to this system of “justice,” not only to strengthen the Canadian military justice system, but to bring it in line with traditional Charter-protected rights and values, and to catch up to the modernizations that have already swept across Europe and beyond.

Meanwhile, however, summary trials have more or less remained frozen in time.

Summary trials are an anachronism of a bygone era, which remains incongruous and discordant with the important reforms in Canadian law brought upon by the enactment of the Canadian Bill of Rights, 1960; the Canadian Human Rights Act, 1997; the Charter of Rights and Freedoms, 1982; and the Canadian Victims Bill of Rights, 2015.

Family affair at Lebanese military court

Controversy continues to haunt the Military Court in Lebanon. It now appears that two of its judges are brothers-in-law, which is said here to be improper. Another judge also recently had his term extended by a year. Year-to-year extensions are not an indicator of judicial independence.

Ministry of Defence (India) declassifies the Report of the Committee of Experts on litigation and allied issues

In a step towards greater transparency, the Defence Minister of India has ordered the declassification of the Report of the Committee of Experts constituted for reduction of litigation, review of service and pension matters and strengthening the institutional mechanisms of redressal of grievances. The panel had submitted its Report on 24th November 2015.

The Raksha Mantri has already directed all wings of the Ministry of Defence to submit an “Action Taken Report” on the same.

The entire Report has been placed in public domain on directions of the Raksha Mantri and can be downloaded from the official Ministry of Defence website. The errata page at the end of the Report has not been updated though.

It was for the first time after Independence that such a committee had been instituted and at the time of submission of the Report the Members had thanked the Minister for taking such the historic step to minimize litigation and grievances in the Ministry of Defence so that the focus could remain on the core issues of governance and administration. The Expert Panel had also thanked the Minister for ensuring that there was no interference in the Committee’s functioning and for encouraging the panel to come up with honest, dispassionate and objective observations without fear or favour.

As per the Ministry’s official press release at the time of submission of the Report, the Committee’s approach remained to identify practical on-ground solutions to reduce litigation, especially appeals, and steps towards reduction of heartburn, maintenance of harmony between employees and the establishment and balancing of rights of both parties which could lead to an increase in productivity and enable the Government to focus upon its basic responsibilities. As per the release, the Committee had postulated practical, workable, reformatory and gradual solutions in its 509-page report encompassing 75 recommendations in areas concerning service and pension matters, discipline and vigilance issues, matters concerning promotions and confidential reports, military justice, issues related to civilian employees and other potential areas of disputes.

If you look closely, you would find a mention of Mr Eugene Fidell in the Report. :)

Military trial for insulting a sentry

This article from Venezuela reports that, after a three-hour trial, five civilians have been convicted by a military court for insulting a military sentry. Venezuelan law as well as human right law forbids the trial of civilians in a military court.

Le procès Samaha

The Lebanese minister of defense has objected to the plan to transfer the controversial case of former cabinet member Michel Samaha from the military court (which famously released him on bail) to a civilian court:

"Il est du droit du ministre de la Justice de réclamer un tel transfert, mais en tant que ministre de la Défense, responsable administrativement du Tribunal militaire, je dis que le moment est inopportun, car un tel transfert affaiblirait le Tribunal militaire, alors qu'en ce moment nous avons besoin de cette juridiction", a affirmé M. [Samir] Mokbel.

Plainly, the fate of Lebanese military jurisdiction hangs in the balance. It could be abolished, or it could merely be cut back. 

Speed bump, or real limits?

Here is the lede of this article on a recent trial court order in Pakistan:

A Peshawar High Court bench on Wednesday stopped the provincial government from transferring a case of two alleged extortionists from an anti-terrorism court to a military court and asked it to explain who was authorised to send cases to military courts and what such cases were.

It would be premature to suggest, on the basis of this interim order, that the tide has turned on the trial of civilians in military courts under the 21st Amendment to the Pakistani Constitution, but perhaps this case will point to a high-water mark, and that there are limits to the extent to which these new courts can be employed. Other litigation in the Supreme Court will be critical, as they will reveal whether meaningful civilian review will in fact be available.

The 21st Amendment, currently set to expire next January, was passed because of perceived deficiencies in the administration of criminal justice through the regular courts. One looks in vain for any concrete steps over the last 13 months to remedy those defects. "Anybody home?"

The military laws that didn't exist

Christian Bazan and Laura Vera, the lawyers for Paraguayan Captain Jose Lezcano, Captain Favio Escobar and Lieutenant Gustavo Velazquez, presented a habeas corpus for the "possible nullity" of Laws 840/80 (Military Tribunals), 843/80 (Military Criminal Code) and 844/80 (Military Criminal Procedure Code).  The petitioners are imprisoned in Viñas Cue in Paraguay and are being tried for corruption under these three laws in a military tribunal.

Christian Bazan, one of the officers' lawyers, requested the Official Gazette, which is part of the Executive Branch, to indicate in as short time as possible when these laws had been published.  In Paraguay, a law does not exist unless it has been promulgated and published.  Edgar Villalba, the deputy Defender of the People (Ombudsman) consulted the Official Gazette about the publication of the laws and the latter confirmed that they had never been published.  Villalba stated that the failure to publish meant that these norms are invalid and that all those who had been affected by them could have their cases reviewed by the court.  He emphasized that the failure to publish "is not an administrative detail; if they are not published they do not exist in the national legal order."

SEA in CAR and elsewhere

The University of Queensland's Dr. Melanie O'Brien has written a tough and timely piece about peacekeeper misconduct for Opinio Juris. Here's an excerpt:

SEA [sexual exploitation and abuse] by peacekeepers is a human rights violation (or rather, it violates many human rights). It is termed ‘misconduct’, but let’s stop calling it that and minimising the behaviour. It is criminal conduct, and states must take action to eliminate these crimes. Punishment of criminal conduct is a crucial component of preventive justice. Firstly, States must ensure they have the legislative means to prosecute their personnel. This means having the substantive law that covers this particular conduct; many states lack the specific provisions to prosecute sexual exploitation of adults. States must enact such legislative provisions, which reflect the imbalance in power dynamic between the peacekeeper and victims, and the exchange in goods/services/money that takes place. These provisions must include appropriate and proportionate punishment. In memoranda of understanding to contribute personnel, states must guarantee they will carry out investigation and prosecution using the proper provisions (as opposed to minor offences). States also need to establish extra-territorial application of the substantive law. Once these capabilities are in place, the sending state must make very clear to its personnel that commission of crimes will not be allowed to take place with impunity. A demonstration of action by states will contribute to prevention of peacekeeper SEA. 

The UN and its member states champion the rule of law and human rights in states in the midst of conflict or in post-conflict disarray. We need the UN and its member states to practice what they preach.

H/T to Global Military Justice Reform contributor Susan Finder for the link to this important essay. 

Why the Guantánamo 9/11 military commission cases aren't done yet

An on-scene report from Human Rights First's Daphne Eviatar gives a vivid account of the latest development at Guantánamo: Walid bin Attash, one of the accuseds in the 9/11 military commission case, has written to the judge to fire his attorneys. Excerpt:

Bin Attash, who in previous hearings had asked to fire his death penalty counsel, Cheryl Bormann, was clearly not satisfied by that response. He reiterated that he does not trust either Bormann or Michael Schwartz, his former military-turned-civilian lawyer assigned to represent him. (Notably, at the last hearing, bin Attash said he still trusted Schwartz; apparently that's over.) Although he's not yet willing to say he doesn't trust a new military lawyer assigned to the team, bin Attash did make clear that he doesn't trust the new, junior lawyer to make a motion to dismiss the other two, more senior lawyers, which is what bin Attash apparently wants him to do. 

Judge [Col. James L.] Pohl looked flummoxed. This was not the way things were supposed to happen. Previously, Judge Pohl had ruled that bin Attash had not demonstrated "good cause" to fire his lawyers, and bin Attash hadn't requested to represent himself. Apparently unsure what to do, Judge Pohl on Tuesday morning embarked on a long colloquy with bin Attash about the meaning of legal representation, the jobs of the lawyers and of the judge and the need for bin Attash to either trust his lawyers or go it alone. That went around in circles for a while until one of the government prosecutors, Edward Ryan, finally stepped up to say that he thinks it's now clear there's been an "irreconcilable conflict" between bin Attash and his lawyers and the judge is going to have to consider the facts behind it. "You certainly heard today a clear request from the accused that he wants to be relieved of counsel," said Ryan. "So it has to be dealt with one way or another," he said, adding: "We're talking about right to counsel." 

Dealing with it will have to start by the judge having someone translate bin Attash's letter, which is written in Arabic. 

Judge Pohl eventually agreed. By around 10:30 a.m., an hour and a half into the day's hearing, he announced the military commission would recess until the letter could be translated. Because this is all has to happen on Guantanamo time, the commission is not scheduled to resume until Wednesday morning.

Provisions of the Armed Forces Tribunal Act challenged in the Supreme Court of India

In a step towards restoration of rights of defence personnel and veterans who had been rendered remediless from most decisions of the Armed Forces Tribunal (AFT) after a Supreme Court verdict last year, the Apex Court has issued notice to the Central Government and agreed to hear a plea by a martyr’s father challenging the constitutional validity of Sections 30 and 31 of the Armed Forces Tribunal Act which bar any kind of appeal for the military community from AFT orders except in cases involving a “point of law of general public importance”. Senior Advocate Mr Arvind P Datar and Ms Aishwarya Bhati appeared for the Petitioner.

The Petition has been filed by Gurbax Singh Dhindsa, father of Late Flying Officer GS Dhindsa, who died in a fighter aircraft crash at Srinagar in the aftermath of Kargil operations and who had been refused the correct pension by the defence accounts department. Though the AFT granted him his entitlement, it refused to grant him interest from the date of death. When Mr Dhindsa wanted to approach the High Court for interest, he was informed that the HCs had been barred from entertaining challenges to AFT orders by an SC verdict of March 2015 passed on a plea filed by the Central Government in 2011, and that the SC also could only hear AFT appeals involving ‘general public importance’. 

The provisions of the Act have been challenged on the ground that the AFT has been rendered the first and the last Court for litigants without any remedy or access against its orders, thereby leaving litigants remediless. It has been stated that the situation was against the law laid down by SC’s Constitution Bench holding that a direct appeal to SC made justice inaccessible and unaffordable. It has also been stated that the SC had earlier observed that litigants could not afford the cost and expenses of contesting litigation in the apex court and “suffer silently in the name of God by treating it their destiny”. The Petitioner has emphasized that the defence community could not be placed at a lower pedestal than other citizens who could challenge the order of the Central Administrative Tribunal in the HC and if still not satisfied, to the SC. He has stated that it was not possible for litigants from various places to afford litigation in the country’s highest court for small sums and routine matters, whereas the HCs were accessible and affordable.

The Parliamentary Committee examining provisions of the AFT Bill in the year 2005 had recorded that though a direct appeal was being provided to the SC in questions involving general public importance, the High Courts would hear challenges against AFT orders on the lines of CAT. The HCs later stopped entertaining petitions after the SC verdict in 2015.

While it is extremely difficult for private litigants to approach the SC from AFT orders, the Ministry of Defence, due to availability of resources, keeps challenging most verdicts citing ‘general public importance’ in every case. As per a February 2016 report of Vidhi Centre for Legal Policy, while only 34 aggrieved litigants were able to file appeals in the SC in 2014, the Defence Ministry filed 890 appeals during the same period. Many ex-servicemen organisations and legal experts had expressed concern over lack of access to HC over AFT orders in routine cases. The AFT, which operates under the Defence Ministry, has also not been vested with powers of civil contempt and it was only after the intervention of the Punjab & Haryana High Court that benches of AFT started initiating coercive action against the Defence Ministry for execution of orders.

Important commentary on Pakistan's military courts

Reema Omer, a legal adviser for the International Commission of Jurists, has written two important columns for The Dawn about Pakistan's 21st Amendment military courts and the Supreme Court's response. There can be found here and here. Her conclusion in the second column:

Many analysts say the Supreme Court ‘compromised justice’ when it legitimised trials of civilians before military courts in the 21st Amendment case. As it now considers petitions from families alleging gross violations of the right to a fair trial in military courts’ proceedings, it has a chance to — at least partially — correct that wrong.

Another failure to communicate

The Supreme Court of Pakistan today continued the stay of four military-court-ordered executions until the government produces the records of trial for the court's review. The government seems to have misunderstood the court's previous request for the records. Details here. Excerpt:

Attorney General Salman Aslam Butt submitted the record of the case. The bench objected on the record, saying it had sought the record of trial courts, which was missing. 

Later, the court sought the record and adjourned the case for an indefinite time.

Pakistan's 21st amendment and the basic structure doctrine

Legally India has published this student comment on the 2015 decision of the Supreme Court of Pakistan upholding the 21st amendment against a claim that it violated the basic structure of the Constitution. The post, by Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, is titled The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan. The author observes:

While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld -- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

24 more officers and enlisted soldiers face general court-martial in Nigeria

The Nigerian Army has convened another court-martial, this time for the prosecution of four officers (two lieutenant colonels and two captains) and 20 soldiers on various charges, including improper release of information, disobedience, running away, and cowardice. Details here.

Thailand's military courts

Thai Lawyers for Human Rights has posted this worthwhile summary of the country's use of military courts to prosecute civilians. Excerpt:

Information from The Judge Advocate General’s Department indicates that from 22 May 2014 – 30 September 2015, there are 1408 civilian cases tried in Military Courts, with 1629 accused and defendants. Bangkok Military Court has the highest number of civilians on trial with 208 accused and defendants. Military Circle Courts with more than 100 civilians on trial are the 23th Military Circle Court (Khon Kaen) 158 civilians, the 32th Military Circle Court (Lampang) 158 civilians, and the 42th Military Circle Court (Songkla) 115 civilians.

Contemporary human rights norms strongly disfavor the use of military courts to try civilians.

Check, please?

In South Africa, 509 soldiers have been getting paid since 2009 even though they have been suspended and perform no duties. The soldiers were involved in a demonstration and the South African National Defence Force's years-long effort to discipline them has been a comedy of errors. Read all about it here. 

When a general stands trial

The general court-martial of Gen. David Sejusa of the Uganda People's Defence Force is sparking lively debate in that country. Consider this extract from a recent article in the aptly-named Independent:

After General Court Martial Chairman Maj. Gen Levy Karuhanga remanded Sejusa to Luzira Maximum Security Prison on Feb.2, the decorated moustached guerrilla war-hero likened his incarceration to what used to happen during the dark days when the dictator, Gen. Idi Amin, was president. 

“I am being held in the same dungeon Amin held me in 1976; the ‘Cell of No Return,” Sejusa read from what appeared to be notes he had scribbled on a paper. The court chairman cut him short and dismissed court. Sejusa’s lawyers have raised a preliminary objection to their client’s trial at General Court Martial basing on the fact that Sejusa has a case before the High Court to declare whether he is serving army officer or not. They argue that, their client cannot be subject to a trial where he is being accused of contravening the UPDF Code of Conduct when another court is yet to decide whether he is still a member of the UPDF. 

Sejusa’s defence team led by David Mushabe and comprising lawyers such as Kampala Lord Mayor Erias Lukwago, Ladislaus Rwakafuzi, Max Mutabingwa, Michael Mabikke, Yusuf Nsibambi and one of his sons, David Munungu, urged the former Coordinator of Intelligence services not to take plea, as this would make him subject to the jurisdiction of the court. 

However, the lawyers were overruled after the Judge Advocate, Lt Col George Kattinda, invoked Section 62 of the Trial Indictment Act which states that when an accused person refuses to take plea, a plea of not guilty shall be entered. 

The trial has sparked a slew of commentary.

Retired Supreme Court Justice George Kanyeihamba, known for his maverick legal views said of the matter: “The court martial is a subordinate court and is subject to the jurisdiction of the High Court. If the issue is pending before the High Court, then it takes priority. If the High Court determines he is not a member of the UPDF anymore, then the case at the Court martial must be dropped.”

What happens after the 15 minutes of fame?

Remember Major Zaidi Ahmad, the Royal Malaysian Air Force pilot who was court-martialed for blowing the whistle on deficiencies in the country's measures to prevent vote fraud? Well, he's left an Islamist party for another opposition group. For details on what's up with him see this article. No word on whether he is in court seeking to overturn his conviction. Judging by this article, Malaysia's anti-election-fraud technique is highly imperfect.

President's Day, Feb. 15, 2016

President George Washington

Editorial on Obama administration military justice legislative proposal

The Connecticut Law Tribune has this editorial on military justice reform and the Obama administration's December 2015 legislative proposal that grew out of the work of the Military Justice Review Group.

Mark your calendar again

The Supreme Court of Canada has set the case of H.M. The Queen v. Cawthorne, No. 36466, for hearing on April 25, 2016. According to the registrar's summary on the court's website:

The respondent was convicted by a general court martial of possession of child pornography and accessing child pornography. The pornography was discovered on the respondent’s cellular phone by an individual who had found the phone and who had accessed its content in an attempt to find its owner. The respondent admitted to possessing the pornography, but denied that it was child pornography. The main issue at trial was whether the respondent knowingly accessed and possessed child pornography. The respondent appealed his conviction arguing, among other things, that the military judge erred by failing to grant a mistrial after certain inadmissible evidence was given by a Crown witness. A majority of the Court Martial Appeal Court allowed the appeal and ordered a new trial. Veit J.A., dissenting, would have dismissed the appeal.

The decision below can be found here. 

Mark your calendars

On February 18, 2016, a five-judge bench of the Supreme Court of Pakistan will hear challenges to cases decided by military commissions under the country's 21st Amendment, according to this report.

The military courts authorization expires on January 7, 2017. According to this article, the government has not taken the steps needed to beef up civilian courts, which was the reason the military courts' jurisdiction was extended to civilians in the first place. Watch for another constitutional amendment.

State and federal military justice reform

Here's an interesting op-ed from the Juneau Empire in Alaska, where the state code of military justice is being revised. The author writes:

In Alaska, state law already requires that civilian authorities prosecute criminal offenses within the National Guard that aren’t of a military nature. What that means is any Guard member accused of sexual abuse would be prosecuted by the District Attorney’s office. And more importantly, the officers within his chain of command would have no authority over the case. 

But in the U.S. armed forces, the commanding officer of the accused can exercise prosecutorial discretion that includes an outright dismissal of charges. And even if the commanding officer recommends a court-martial, he or she decides which charges are to be prosecuted and also chooses who will sit on the jury. 

The Military Justice Improvement Reform Act would change that by giving all prosecuting authorities to full-fledged military attorneys outside the chain of command. It’s got bipartisan support that includes unlikely allies such as Sens. Harry Reid, D-NV, Mitch McConnell (R-KY) and Ted Cruz (R-TX). Three quarters of the Senate’s women support the reform, including Sen. Lisa Murkowski. 

On the other side, 15 of the 20 men in the Senate who have served in the military oppose it, including Sen. Dan Sullivan, R-Alaska. They and the rest of the bill’s opponents have mainly bought the military brass’ argument that stripping commanders of this responsibility would undermine military order and discipline. 

But the reality is order and discipline are already being compromised by the 52 new cases of unwanted sexual contact that, according to the Pentagon, occur every day. By denying this, the generals are acting more like the Catholic Church hierarchy that’s shielded abusive priests in hopes of preserving the institution’s respectable image.

No bail for General Sejusa

Remember the case of David Sejusa, the Ugandan four-star general who was recently arrested? He applied for release on bail but was denied by the general court-martial because he could not find an officer of equal rank (how many could there be?) to guarantee his appearance for trial. Civilian sureties -- a lord mayor and a physician --were deemed unqualified. Details here.

A speed bump for government appeals in India

Here's some encouraging news from India, from The Indian Express:

In a move which will provide major relief to military personnel involved in litigation with the Ministry of Defence (MoD), Defence Minister Manohar Parrikar has issued strict guidelines to reduce frivolous appeals filed in Supreme Court against serving and retired personnel. 

The new policy, passed last week, states that no appeals would be filed in sensitive matters or those involving public policy unless approved by the defence minister himself. Taking a strong view regarding routine filing of appeals in the Supreme Court, Parrikar, passed orders to curb this tendency by overhauling the procedure of litigating in service related matters.

Further information on the new policy can be found here. 

How do China's military courts deal with rape?

This observer [Susan Finder] is awaiting a time when the Chinese military courts will release some of their cases related to sexual harassment.  In the meantime, a search of the Supreme People’s Court’s judgments database reveals the following cases (among others) in which defendants were convicted of rape by a military court.  As mentioned previously, for most violent crimes, a defendant is dishonorably discharged from the PLA and handed over to the civilian authorities.  Under China’s Criminal Law, rape is punished by three to 10 years in prison, and in certain specified situations, no less than 10 years in prison, life imprisonment, or death:

• Zeng Xiaoping, convicted in 2012 by the Shanghai Armed Police Military Court of robbery (sentenced to 11 years) and rape (sentenced to 3 years) with the two sentences to run concurrently for 12 years, had his sentence reduced by 10 months by the Chengdu Intermediate People’s Court.
• Zhu Xiaochong, convicted in 2000 of rape (5 years) and murder (life imprisonment) by the People’s Armed Police Military Court.  In storage area in Pingan County, Qinghai Province, he raped a shepherdess and strangled her with her scarf.  The court determined that he was a juvenile when he committed the crime. He had his sentence reduced by the Xinxiang Intermediate Court (for the third time), and served a total of approximately 11 years before being released.
• Chen Weiyue, convicted in 1991 by the PLA Air Force Lanzhou Military District Military Court of rape and sentenced to three years in prison, was convicted by a lower court of rape in 2015, but an appeals court remanded the case for retrial.
• Hu Wei, convicted in 1999 by the PLA Navy Military Court of rape and sentenced to life imprisonment, and upheld by the PLA Military Court, and after he was dishonorably discharged and transferred to the civilian prison system, had his sentence reduced in 2002 to 18 years in prison by the Shanghai Higher People’s Court, had his sentence reduced several times, the last time by eight months, and was scheduled to be released several weeks after the ruling was issued. 
• Liu Liang, convicted in 2009 by the Urumqi Armed Police Military Court of rape and murder and sentenced to ten and a half years in prison, had his sentence reduced for the third time by the Urumqi Intermediate People’s Court, this time by nine months.
• Wu Jian, convicted in 2001 by the Nanjing Military District Military Court  of rape and robbery and sentenced to eight years three months for rape, 11 years for robbery, and six months for theft, had his sentence reduced for the third time, this time by the Wuxi Intermediate People’s Court, by 11 months.

Readers are invited to comment on how these sentences compare with those in the US and other countries. [Real names only, please.] Thanks to Susan Finder for this post.