According to [Patimat] Gadzhieva’s lawyer, Timur Aliev, the student posted an image to a social network depicting representative of ISIS terror organization prohibited in Russia and “a scene of execution”. A copy of text in Russian was copied by Gadzhieva in the form of a prayer. She deleted the image after 13 days, but Russian authorities found the posting in Vkontakte’s archive and launched a criminal case against Gadzhieva in November 2015.Why would the defense seek the transfer?
Ahmed Abba, a Hausa language correspondent for RFI was arrested in July 2015.
He faces charges of “complicity in terrorism and failing to denounce acts of terror”, according to a charge sheet read in court on Monday.
All convicted servicemembers also would have the right to appeal, under the changes, and military court documents such as judicial rulings — now accessible to the public only through Freedom of Information Act requests — would be filed in a public system as they are in federal courts.
“In Federal Court, anybody may look up a case and view pleadings in current cases. The military trial courts should have a similar system where the public could view motions,” said Kyle Fischer, a former Army lawyer now in private practice.
Fischer said the move would benefit not just the public but also people he says are falsely accused.
“Nobody knows about those frivolous cases except for the client, the panel, the attorneys in the case, and the military judge,” he said. “If we are going to raise awareness of problem of the falsely accused being tried on frivolous charges, then allowing the press access to these proceedings should be a concern.”The article identifies a number of other major changes the proposal would make. It also points out that the proposal would not shift disposition (charging) power away from commanders to legally-trained prosecutors outside the chain of command.
b) Failure to repress the commission of crimes or submit the matter to the competent authorities for investigation and prosecution
205. Article 28(a)(ii) also criminalises the failure of the commander to “repress” the crimes. The word “repress” means to “put down”, “subdue”, “restrain”, and “keep or hold back”. The notion of “repression” therefore overlaps to a certain degree with “prevention”, particularly in terms of a duty to prevent crimes in progress and crimes which involve on-going elements being committed over an extended period.
206. The Chamber concurs with the Pre-Trial Chamber that the duty to repress also encompasses an obligation to punish forces after the commission of crimes. The Chamber notes that the statutes of the ad hoc tribunals do not make reference to a duty to “repress”; rather the terms “to prevent [...] or to punish” are used. The term “repress” is used in Article 2 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 86 of Additional Protocol I where, as in the Rome Statute, this notion is distinguished from “prevention”. The International Committee of the Red Cross (“ICRC”) Commentary to Article 86 of Additional Protocol I indicates that the purpose of the requirement that commanders repress crimes is to ensure that military commanders fulfil their obligation to search for the perpetrators and either bring them before the courts or hand them over to another state for trial.Footnotes omitted; emphases added. The separate opinions of Judges Kuniko Ozaki and Sylvia Steiner are not to the contrary on this point,
207. A commander’s lack of formal competence to take certain measures does not relieve the commander of the duty to take all necessary and reasonable measures within his power to repress the crimes. In the event the commander holds disciplinary power, he is required to exercise it, within the limits of his competence. If he does not hold disciplinary power, measures which may, depending upon the circumstances, satisfy the commander’s duties include proposing a sanction to a superior who has disciplinary power or remitting the case to the judicial authority with such factual evidence as it was possible to find. The ad hoc tribunals have established what has been termed a “minimum standard” for measures that may fulfil the duty to punish, directing that a Trial Chamber “must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators”. The duty to punish includes, at least, the obligation to investigate possible crimes in order to establish the facts. The commander is required to take an “important step in the disciplinary process”.
208. If the commander has no power to sanction those who committed the crimes, he has an obligation to submit the matter to the competent authorities. This obligation to submit the matter also arises where the commander has the ability to take certain measures, but such measures would be inadequate. On a plain reading of Article 28(a)(ii), the Chamber finds that a commander cannot be considered to have discharged his duty to submit the matter if he does not submit the matter to an authority competent to investigate and prosecute the alleged perpetrator. Further, referral to a non-functioning authority or an authority likely to conduct an inadequate investigation or prosecution may not be sufficient to fulfil the commander’s obligations.
209. The Chamber considers that the duty to punish or to submit the matter to competent authorities aims at ensuring that offenders are brought to justice, in order to avoid impunity and to prevent future crimes. These duties arise after the commission of the crimes.
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| Maj (Ret) Navdeep Singh |
An Israeli soldier, who was allegedly caught on video shooting dead an injured Palestinian man after a stabbing attack, is due to go on trial.
The Israeli Defence Forces (IDF) solider, who is understood to be from the Kfir Brigade, was brought to a detention hearing before the Jaffa Military Court on Friday, where it was announced he would be subject to a murder investigation.
. . . During Friday’s hearing it was revealed that a preliminary investigation into the incident had already been conducted before the video was circulated online, following a complaint by one of the Brigade’s commanders.
It is ironic that while the UPDF's main role is to protect the country, some of its officers have turned on the citizens.So reports The Observer (Kampala).
Statistics from the army General Court Martial (GCM) show that theft, robbery, aggravated robbery and murder are some of the commonest offences by UPDF soldiers. But the army has rejected suggestions that this is because the government has neglected the soldiers' welfare.
According to a source at the Makindye-based GCM, on average, between 15 and 25 soldiers are court-martialled for stealing from - and murdering - taxpayers. The statistics seem to reflect the rise in gun crime in the last two years - but also on the army's determination to clean its house.The U. S. Army Court of Criminal Appeals estimates that 60% of the cases currently are sexual assaults, we could not get similar estimates from the other Services. This may reflect media, congressional, and leadership attention to the issue.
[27] FINDS that subsection 129(2) of the National Defence Act violates the presumption of innocence protected by section 11(d) and is not saved under section 1 of Charter.
[28] DECLARES, under section 52 of the Constitution Act, 1982, that subsection 129(2) of the National Defence Act is void insofar as it makes an accused liable to be convicted despite the existence of a reasonable doubt on the essential element of prejudice to good order and discipline and because the presumption created in subsection 129(2) of the National Defence Act requires the trier of fact to convict in spite of a reasonable doubt.
[23] As stated earlier, the appropriate test is not whether the person authorized to issue an arrest warrant possesses the independence of a judge but rather whether that person has the capacity to act judicially. Following the principles outlined in Hunter, applied to arrest warrants in dwelling houses in Feeney, this capacity to act judicially is the capacity to act as a truly neutral and detached arbiter in locating the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state in law enforcement before authorizing an arrest warrant in a dwelling house.
[24] As explained previously, subsection 157(1) does not provide for any limit as to when a commanding or delegated officer may exercise his or her power to authorize a warrant into a dwelling house. It could, as it did in relation to the first warrant issued in this case, allow a commanding officer to authorize a warrant for the arrest of a member of his unit in a dwelling house, in relation to an offence that has been and continues to be investigated by or under the close supervision of his coxswain and/or executive officer, two members of his “command triad” whose duties are to allow the commanding officer to discharge his or her responsibilities for the good discipline, morale and efficiency of the personnel under his or her command.
[25] In my view, a commanding officer in this position, regardless of training, ethics or good intentions, is so involved in the investigatory functions performed by his closest advisors in his team that he or she cannot act in a judicial capacity when authorizing an arrest warrant under subsection 157(1).
[26] To be clear, I have no reason to doubt the good faith and commitment of any commanding officer, including Commander Druggett, in acting fairly. However, to paraphrase Dickson J. in Hunter, the issue is not the honesty or good faith of those authorized to act, such as a commanding officer or members of his or her team. It is whether the nature of a commanding officer's duties, at least in relation to the members of his or her unit, accords with the neutrality and detachment necessary to assess whether the point has been reached where the interests of the individual to be arrested in a dwelling house must constitutionally give way to those of the state in enforcing the law and, in this case, enforce discipline. I find that, in these situations, a commanding officer cannot be considered as a "neutral and detached arbiter."
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| Jean-Pierre Bemba Gombo |
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| David F. Addlestone |
Russian government has submitted a bill to the lower house of parliament that would authorize military police to ensure security of military judges and members of their families, according to the State Duma database.
Currently, measures to ensure the safety of military courts’ judges, judges of judicial panels for military personnel, members of their families as well as measures to ensure the safekeeping of their property are carried out by internal affairs agencies and commanders of military units.
Under the bill, Russia’s Military Police officers will discharge these duties on equal terms with the aforementioned bodies.The article does not explain why this bill has been introduced.
The U.S. military has stepped up investigations of high-ranking officers for sexual assault, records show, curtailing its traditional deference toward senior leaders as it cracks down on sex crimes.
During the federal fiscal year that ended Sept. 30, [2015,] 116 officers of all stripes were court-martialed, discharged or received some sort of punishment after they were criminally investigated for sexual assault. That was more than double the number from three years earlier, according to Defense Department figures.
Of last year’s cases, eight were against senior officers holding a rank equivalent to colonel or Navy captain or higher. While that figure may seem small, it represented a fourfold increase from 2012.
Wade Pear, a veteran of multiple ground tours in Afghanistan, Bosnia and Cyprus, was tried before the military tribunal, even though he's been a civilian for two-and-a-half years.
It is a controversial case that has raised the question of whether ex-members of the Canadian Armed Forces should face military justice — and the possible of prison time — for minor infractions after they have retired.
The court martial, at Garrison Petawawa, Ont., saw testimony from 12 witnesses over several days and stems from an incident in November 2012 where Pear — attending a mess dinner — was accused of drunkenness, insubordination and making disparaging remarks.
He says he's relieved by the verdict, but contends his reputation was left in tatters by the allegations, which he says were false.
Military prosecutors tried on two separate occasions to get him to accept deals in exchange for guilty pleas.
"I'm glad I didn't do it," he said in an interview with The Canadian Press. "I couldn't do that because I knew I wasn't guilty. To me that's a cop out. Right?"Mr. Pear was represented at trial by uniformed counsel, but had previously incurred legal bills of $8,000. Perhaps there is some way the government can defray those. Global Miitary Justice Reform contributor Michel Drapeau called the case a waste of time for the military justice system. "It was inappropriate that a civilian — that's what Mr. Pear is — was tried before a military tribunal."
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| William III |
On the same day one of its senior Commanders is facing a court martial over an alleged indecent assault, the Defence Force has launched an operation to try and tackle inappropriate sexual behaviour in the organisation.
The Defence Force wants to recruit more women but says it needs to deal with the underlying culture in the Defence Force first.
"New research we've commissioned shows that being a woman in our Defence Force is still harder than it should be," says Chief of Defence Force Lieutenant General Tim Keating.
In a judgment on Monday, Justice Yusuf Haliru directed the respondents to immediately release the applicant on self-recognition, saying his detention for over three months without trial was “illegal, wrongful, unlawful and constituted a blatant violation of the fundamental rights of the applicant”.
The court also ordered immediate release of documents and items the anti-graft agency seized from the house of the applicant.
Justice Haliru, who cautioned the EFCC and the Army, which he said acted as if Nigeria was still under military dictatorship, said: “The EFCC is a creation of the law.
“The court will not allow it to act as if it is above the law.
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| Prof. Gregory D. Foster |
As an institution, the military is accorded carte blanche authority to possess and wield violence on behalf of the state. It is also a mammoth social institution that reaches deep into American society and many other societies worldwide. It thus is tacitly expected to comport itself in a socially responsible manner and its members to demonstrate professionalism in their conduct. And yet the pervasive, long-term misbehavior of those in uniform is striking, even alarming. This is where civilian subjugation to the military manifests itself most glaringly, and where the lack of a willingly accountable, self-policing military comes most clearly into view.
Each year for at least the past two decades, literally hundreds of incidents have occurred that undermine any claims the military might make to moral superiority: atrocities, corruption and bribery, fraud and waste, sexual misconduct, cover-ups, racial and religious persecution, and acts of cultural intolerance. Moral arrogance is in abundant supply among those in uniform, genuine moral superiority in short supply. . . .Whether you agree with Prof. Foster (a West Point alumnus) or not, this is must reading.
The chief of the Georgian military’s general staff, Major General Vakhtang Kapanadze, has also weighed in, stating matter-of-factly: “I believe my soldiers when they say they are not guilty.”
Nonetheless, Georgian officials are addressing the UN complaints: six Georgian officers responsible for overseeing peacekeeping missions have been suspended, pending the results of a probe, while a special investigative unit has been established.
This is more than can be said about some other countries that have failed to respond to UN allegations of sexual abuse at all. From 2007-2014, the UN, according to its own data, received a disappointing response 45.8 percent of the time.
Reform rather than reputation should be the primary concern of Georgia’s Defense Ministry. The same holds true for the EU, which issued a press release the day the allegations were made public, but which has not followed up since then.
Additional measures the Georgian Defense Ministry could implement include: integrating more women and gender officers into peacekeeping forces working with refugees; keeping open channels of communication with refugees; improving the training of peacekeepers on dealing with refugees and on the cultural nuances of the countries in which they are deployed; working with the UN to establish onsite military courts; and providing enhanced support to victims.
The fact that French soldiers have also been accused on multiple occasions of sexual abuse confirms that this is not just a Georgian issue, or a UN issue, but an EU issue that requires system-wide reform.
Prior to its one-year deployment to the Central African Republic in 2014, the Georgian contingent received little training from EUFOR on working with refugees. Nevertheless, they were made responsible for a rapidly escalating crisis at the M’Poko Airport near Bangui, where as many as 30,000 refugees had gathered. According to a Georgian officer, only one person in the contingent spoke French, making it difficult to communicate with the people they were meant to protect.
A competent government source confided in our correspondent on Sunday that military authorities had sought the President’s permission for the officers to be prosecuted under the Armed Forces Act.
He said the position of the military was that the Armed Forces Act had made provision for such infractions on the part of military men and how to handle their cases.
He added that it was the belief of the military that if the indicted officers were tried using the military rule, it would be better than when they were prosecuted by the regular court.
The source said the argument for military trial for the officers was further strengthened by the fact that the money, which is the subject of the investigation, was meant for the procurement of arms for the Nigerian Armed Forces.
He said, “The military authorities have suggested to the Federal Government that all serving officers, found culpable in the ongoing investigation into the arms procurement scandal, be tried under the Armed Forces Act rather than being tried in regular courts."
On January 15, 2016, Spain’s
new Military Criminal Code entered into force.
Law 14/2015 of October 14, 2015 was published in the Official Gazette
three months earlier. This law
substitutes for the previous Military Criminal Code of 1985 and is justified in
order to modernize the Armed Forces, the need to collect accumulated experience
and because of Spain’s obligations overseas.
The 1985 Military Criminal Code replaced the old Military Criminal Code
that was in force until the promulgation of the Constitution of 1978. The Constitution sets forth the principle of
“jurisdictional unity” in article 117(5), which converts military justice into
a specialized jurisdiction for reasons of environment (military) and subject
matter (specific norms). Even though some
have expressed doubt, Military Justice has been adjusted completely to the
principles, rights and procedural guarantees of the Constitution, as the
Supreme Court and the Constitutional Court have repeatedly guaranteed. Constitutional doctrine, in interpreting
article 117(5) of the Constitution, attempts to limit military jurisdiction to
what is strictly indispensable. This
means that during normal times, military crimes are those that have a direct
connection with the objectives, purposes and goals of the Armed Forces as well
as with the need for a specific judicial path for their recognition and
eventual repression.
