Thursday, March 31, 2016

Should the military involve itself in matrimonial or family disputes?

There are provisions in military law in India that provide that the competent military authority can award maintenance to spouses of personnel in case they apply for the same.

This aspect had been deliberated upon by the Committee of Experts constituted by the Indian Defence Minister to reduce litigation and improve the system of redressal of grievances. The Committee had opined that such exceptional provisions are not meant to be used as a routine recourse.

The Indian Express reports on this aspect of the Expert Panel recommendations here.

The Tlatlaya cases: focus shifts now to civilian court

Three of the six Mexican soldiers acquitted in a court-martial arising from the Tlatlaya killings remain subject to homicide charges in the civilian courts. A seventh soldier was convicted of disobedience. Details here

Wednesday, March 30, 2016

Acquittal in Mexico

A Mexican military judge has acquitted six soldiers accused in connection with the Tlatlaya massacre. Details are available here (in Spanish). PRODH, a leading Mexican human rights NGO, objected.

Free speech in Thailand: the case of the red rice bowl

A Thai civilian is out on bail pending a military trial on sedition charges for having posted on Facebook a photo of herself with a red rice bowl that she received the bowl from deposed Thai prime ministers. Human Rights Watch has this report.

Odd turn of events in Moscow

For reasons that are not apparent, a student accused of posting a prayer and photo about ISIS has successfully moved to have her case transferred from a Russian civilian court to a military court in Moscow. Details here. Excerpt:
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? 

Tuesday, March 29, 2016

RFI correspondent charged before Cameroon military court

A correspondent for Radio France International has appeared before a military court in Yaoundé, Cameroon. According to this account:
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.

Monday, March 28, 2016

Stars and Stripes on proposed UCMJ changes

Stars and Stripes has this account by Nancy Montgomery of the administration's proposed military justice bill. Excerpt concerning transparency:
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.

Sunday, March 27, 2016

UN Peacekeeping bookshelf

The April 7, 2016 issue of The New York Review of Books includes David Rieff's review, under the title The UN Fire Brigade: How Good?, of former UN Under-Secretary-General for Peacekeeping Operations Jean-Marie Guéhenno's new book The Fog of Peace: A Memoir of International Peacekeeping in the Twenty-First Century, published by Brookings. M. Guéhenno was in charge of the Department of Peacekeeping Operations from 2000 to 2008 and now heads the International Crisis Group, succeeding Louise Arbour.

Saturday, March 26, 2016

A looming crisis for the IDF

A major storm, political and military, is brewing in Israel over a case in which an IDF soldier was captured on video shooting a Palestinian without apparent justification. The video has gone viral.

The high stakes and ramifications are explored in this strong opinion piece from Haaretz.

Friday, March 25, 2016

The ICC and commander-centric military justice

It has occasionally been suggested by opponents of Sen. Kirsten E. Gillibrand's salutary proposal to shift UCMJ disposition power from the commander to an independent legally-trained prosecutor that doing so would run afoul of the commander's responsibility under the law of armed conflict. The March 21, 2016 decision of the International Criminal Court's Trial Chamber III in Situation in the Central African Republic (Prosecutor v. Bemba Gombo), No. ICC-01/05-01/08, refutes this theory. The judgment makes it clear that a commander would not incur command responsibility for failure to repress crimes within the meaning of Article 28(a)(ii) of the Rome Statute if he or she submits the matter, as provided by national law, to competent authorities for prosecution. The Trial Chamber decision states (pp. 93-96):
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.

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.
Footnotes omitted; emphases added. The separate opinions of Judges Kuniko Ozaki and Sylvia Steiner are not to the contrary on this point,

In defense of the Indian Defence Minister's missive

Maj (Ret) Navdeep Singh
In continuation with this post on the interesting development of the Indian Defence Minister seeking protection from retaliation against those personnel who complain directly to him, I have penned an opinion supporting this unconventional missive from the Minister which is available in full on my blog.

I have argued that these are minor corrections and tribulations which are bound to occur till the system adjusts itself with the times we live in.

I have also argued that though in any hierarchical organization the chain of command should not be ideally bypassed, there are bound to be situations which may be extraordinary in nature and which may not deserve straitjacket solutions.

My entire opinion can be accessed here.

In self-defense?

U. S. and European Soldiers have faced this issue downrange, reported by The Independent.
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.

Statistically speaking

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.

Military justice in the Karadžić case

The International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber's 2590-page March 24, 2016 decision in Prosecutor v. Karadžić will be studied closely around the world. Of note to readers of Global Military Justice Reform is the description at pp. 106-117 of the military justice system of the "Republika Srpska" regime. At pp. 1283-84 & n.10901, the decision notes the removal of a military court judge who refused to follow instructions as to how to rule on a case.

Thursday, March 24, 2016

Is subsection 129(2) of the Canadian National Defence Act valid?

Canadian Chief Military Judge Mario Dutil has handed down a potentially important ruling in R. v. Karolyk, 2016 CM 1002 (General Court Martial Feb. 22, 2016). The decision--
[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.

More on the fallout of the Singapore soldier case

Here's an informative article about the fallout of a recent case in which Singapore Armed Forces personnel were punished in connection with the death of a soldier. The article includes a link to video of the Defense Minister's remarks in Parliament.

On this day in 1774 . . .

George III reissued the Articles of War. The 1774 Articles were the model for the American Articles of War approved the following year by the Continental Congress. American military justice continues to be significantly influenced by the commander-centric concept at the heart of the 1774 Articles.

Two 21st amendment hangings in Pakistan

Dawn reports here that two men convicted by Pakistani military courts have been hanged, only two days after their death warrants were signed by the Chief of Army Staff.

No right to conscientious objection in Bolivia

The Plurinational Constitutional Tribunal of Bolivia has ruled that there is no right to conscientious objection. Details here (in Spanish).

Wednesday, March 23, 2016

Indian defense minister seeks to prevent retaliation against those who complain

“Of late it has been observed that on certain occasions instead of apprising the ministry/RM of the findings of the inquiry conducted, action has been taken against the complaining officials including attachment at other formations/establishments.”

“RM has taken a serious note of the matter and has directed that henceforth service headquarters shall restrain from taking action against complaining officials. If any action needs to be taken as per procedure, the same shall be furnished to the Ministry for seeking approval of the RM when the complaint is addressed to RM and inquiry has been ordered by him.”
Indian Defence Minister Manohar Parrikar, reported here

Another capital sentence stayed in Pakistan

The Peshawar High Court has stayed another military court death sentence. Specifics here.

Courts-martial papers of 1916 leaders online soon

Thousands of documents relating to the revolutionary period, including all those related to the courts-martial of the leaders of the 1916 Easter Rising, have been released online for the first time.

So reports the Irish Times.

Three cheers!

Hearty thanks to the numerous Global Military Justice Reform contributors from around the world who have increasingly pitched in with valuable and interesting posts. Hip-hip . . .

FYI, as of this morning the site has had over 241,000 hits from readers in 162 jurisdictions.

Tuesday, March 22, 2016

Supreme Court of Canada grants leave to appeal CMAC decision

The Supreme Court of Canada announced today that it grants Leave to Appeal in the following application for leave to appeal  in R v. J.G.A. Gagnon et al.


The two Respondents (Gagnon and Thibeault) were members of the Canadian Armed Forces (CAF) charged with sexual assault in two separate cases. They were successful at trial. For Thibeault: see: Standing Court Martial 2015 CM 1001.  

The Crown appealed the verdicts.  However, the Respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence.  

In R. v. Gagnon 2015 CMAC 2, the Court Martial Appeal Court (CMAC) held that s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The respondents’ motions were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.

On February 9, 2016 Her Majesty the Queen appealed that decision to the Supreme Court of Canada. On March 24, 2016 the Supreme Court granted leave to appeal the CMAC decision.

Another strip-tease of the Canadian military justice system

In R. v. Levi-Gould, 2016 CM 4002, a decision dated February 24, 2016 but just released a few days ago, Judge Pelletier of a Canadian court martial ruled that ss.157(1) of the National Defence Act which grants commanding officers the power to issue arrest warrants for execution in a dwelling-house is unconstitutional. The court found that the subsection is incompatible with the requirements of s.8 of the Canadian Charter of rights and Freedoms. Section 8 gives everyone the right to be secure against unreasonable search or seizure.

Judge Pelletier was of the view that such power of arrest in the military context had to be exercised by persons capable to act judicially and that the commanding officers did not meet this requirement. At paragraphs 23 to 26 he wrote:
[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."
The court declared ss.157(1) to be of no force and effect under ss.50(1) of the Constitution Act, 1982.

CBC documentary on sexual assaults in the military. An urgent need for action by the Canadian Parliament

Last evening the French network of the Canadian Broadcasting Corporation (CBC) aired a 45 minutes documentary titled “Women in combat”. 

Femmes au combat which chronicles the story of five women in the Canadian Forces who dare to complain about incidents of sexual assaults and in doing so put their military careers at risk. 

Each of them describe and denounce a military culture which is hostile to women. The documentary was filmed on several military bases in Canada. 

The documentary  throws a spotlight on the challenges faced by sexual assault victims having to deal with the military justice system. 

Femmes au combat openly questions both the efficacy of courts martial and the measures taken by the  Canadian Forces leadership under  OPERATION HONOUR to change the military culture.  The producer of the documentary qualifies OPERATION HONOUR as no more than a cosmetic initiative and a parody. 

See documentary here. The documentary includes the participation of two regular bloggers: Gilles Létourneau and Michel W Drapeau. 

Knew or Should Have Known

Jean-Pierre Bemba Gombo
The International Criminal Court just found former Congolese rebel leader Jean-Pierre Bemba Gombo guilty of war crimes committed by rebels under his control.

The written judgment has not yet been released. It is expected to be both a restatement and advancement of the theory of command responsibility, a doctrine which has had very few recent developments.

From the BBC:

Welcoming the verdict, ICC chief prosecutor Fatou Bensouda said: "While the reality of the crimes is appalling, the significance of this decision is to be celebrated."

"What this decision affirms is that commanders are responsible for the acts of the forces under their control."

Problems in the Armed Forces Tribunal Act, 2007 (India) again come to fore before the High Court

In a pending appeal of a convicted soldier before the Armed Forces Tribunal, if a plea for grant of bail is dismissed by the Tribunal, which is the forum he/she can approach?

Fettered by a statutory bar under the Armed Forces Tribunal Act, 2007, this very pertinent question has arisen before the Punjab & Haryana High Court.

A news report on the subject in The Tribune can be accessed here.

Monday, March 21, 2016

NVLSP honors David F. Addlestone with first Lifetime Achievement Award

David F. Addlestone
The National Veterans Legal Services Program has honored Global Military Justice Reform contributor David F. Addlestone with its first Lifetime Achievement Award. Video of the event can be found here. (Bart Stichman's introduction begins at 11:45.) David's description of his career as an Air Force judge advocate and thereafter as an outstanding leader in military and veterans law is well worth hearing. Hearty congratulations on this well-deserved recognition, David.

L'effeuillage (strip-tease) du système de justice pénale militaire canadien

Au cours des 30 dernières années, le système de justice pénale militaire canadien a été contraint par les tribunaux civils et militaires de se départir de certains atours dont se revêtait la chaîne de commandement au détriment des principes de justice fondamentale et des personnes soumises à ce système.

À titre d’exemple, voici quelques-uns de ces atours exposant à nu les abus de ce système, ses carences, le disgracieux de l’effeuillage et, enfin, la nécessité d’une réforme en profondeur. Car  les tenants de ce système ont soutenu devant les tribunaux, bec et ongles, le bien-fondé de tous ces abus dont pourtant l’illégitimité était souvent d’une évidence criante vu les droits constitutionnels garantis d’un accusé à la présomption d’innocence, à une défense pleine et entière ainsi qu’à un procès  devant un tribunal indépendant  et impartial.

Au premier chef de ces abus: le contrôle de la chaîne de commandement sur les juges militaires et les poursuites pénales.

Tel qu’illustré dans l’arrêt  R. c. Lauzon, (1998) CMAC-415, les juges militaires étaient nommés par le ministre de la Défense nationale pour un court terme renouvelable. La nomination se faisait à même les avocats militaires de son ministère pour entendre les causes du ministère plaidées par des avocats militaires eux-mêmes collègues des juges militaires. Ils pouvaient être destitués par le ministre de la Défense nationale sur recommendation d’un Comité d’enquête composé de trois membres “non seulement majoritairement formé de membres de l’Exécutif, mais…présidé par le juge-avocat général qui, en plus de comparaître devant la Cour martiale permanente, est le conseiller principal de l’Exécutif en rapport avec les causes plaidées devant ladite Cour”: para.29.

Traitant de cette relation organisationnelle et institutionnelle entre le Ministre, le juge-avocat général et les membres de son Cabinet qui représentent l’Exécutif et les juges militaires qui entendent les causes du ministère, la Cour d’appel de la cour martiale (CACM) concluait qu’une “personne raisonnable prenant connaissance de l’état de droit prévalant et de la promiscuité gênante qui existe entre le pouvoir exécutif et le pouvoir judiciaire………..pourrait vraisemblablement conclure que les juges militaires agissent par l’Exécutif, avec l’Exécutif et pour l’Exécutif”: para.33.

En outre, la rémunération des juges était liée à celle d’un avocat militaire du même grade que le juge de sorte que leurs rémunérations au mérite dépendaient de l’Exécutif. Ils n’avaient donc pas de sécurité financière. La CACM a déclaré inconstitutionnel le processus de nomination des juges des cours martiales permanentes.

Suite aux arrêts R. c. Généreux, (1992) 1 R.C.S. 259 (inconstitutionnalité de la Cour martiale générale pour absence de garantie constitutionnelle d’indépendance et d’impartialité) et Leblanc c. Sa Majesté La Reine, 2011 CACM 2 (insconstitutionnalité des mandats à terme renouvelables des juges militaires), les juges militaires ont acquis leur indépendance judiciaire bien qu’elle ne soit pas complète. Ils ont toujours un rang militaire inférieur  à plus de 150 officiers soumis à leur compétence disciplinaire, dont le juge-avocat général qui, malgré ce que son titre annonce, n’est pas juge.

Comme l’illustre un arrêt du 18 janvier 2016 de la CACM, R. c. Gagnon, 2016 CACM 577 , le ministre de la Défense nationale détient le pouvoir d’interjeter appel des décisions des cours martiales ordonnant un arrêt des procédures ou prononçant un verdict d’acquittement ou une sentence: art.230.1 de la Loi sur la défense nationale (Loi). La CACM a déclaré inconstitutionnel ce pouvoir du ministre et a suspendu pour une période de 6 mois l’effet de sa déclaration afin de permettre au législateur d’apporter les correctifs appropriés. La décision de la CACM a été portée en appel devant la Cour Suprême du Canada en vertu de l’article 245 de ladite Loi.

Au deuxième chef: les pouvoirs octroyés à la poursuite. 

Ainsi fût déclarée inconstitutionnel l’article 165.14 de la Loi conférant à la poursuite plutôt qu’à l’accusé le choix de son mode de procès: R. c. Trépanier, 2008 CACM 3. Or le choix du mode de procès “participe d’un bénéfice, d’un élément de stratégie ou d’un avantage tactique associé au droit d’un accusé de contrôler la conduite de sa défense et d’exercer son droit à une défense pleine et entière”: para.60.

Cet avantage conféré au poursuivant était susceptible d’abus. Et comme le disait le juge Cory de la Cour suprême du Canada dans l’affaire R. c. Bain, (1992) 1 R.C.S. 91, aux pages 103 et 104, “malheureusement, il semblerait que, chaque fois que le ministère public se voir accorder par la loi un pouvoir qui peut être utilisé de façon abusive, il le sera en effet à l’occasion”. Ce fût le cas en l’espèce. Pour la période de 2003 à 2008, il y eut entre 120 et 125 procès devant les cours martiales et aucun ne s’est tenu devant une formation de militaires assistée d’un juge militaire: para.84. Voir aussi le para. 82.

Comme je le soulignais récemment dans un blog du 13 mars dernier, la cour martiale vient de déclarer inconstitutionnel l’alinéa 129(2) de la Loi qui crée une présomption irréfragable de préjudice à la discipline et au bon ordre et, de ce fait, dispense la poursuite de faire la preuve de cet élément essentiel de l’infraction et interdit à l’accusé d’en faire la preuve contraire.

Ces quelques exemples illustrent bien le dépouillement à la pièce de pouvoirs d’intervention conférés à la chaîne de commandement dans l’administration de la justice pénale militaire ainsi que de privilèges exorbitants octroyés à la poursuite. Il est, d’une part,  à remarquer que l’existence et l’exercice de ces pouvoirs et privilèges n’ont fait rien de moins que l’objet d’une déclaration  judiciaire d’inconstitutionnalité. Il ne faut aussi pas perdre de vue les coûts importants de ces contestations judiciaires.

Ce qui m’amène à poser la question suivante: combien de temps encore durera l’effeuillage par le judiciaire car il reste beaucoup à faire pour non seulement rendre le système compatible avec la Charte constitutionnelle des droits et libertés de la personne, mais aussi le rendre plus juste et plus équitable pour les accusés et les victimes, particulièrement celles d’agressions sexuelles?

Encore là, à titre d’exemples d’une problématique beaucoup plus large, quelle justice y a-t-il dans un système de procès sommaires où l’adjudication est faite par des militaires sans formation juridique adéquate, lors desquels l’accusé est contraignable comme témoin, ne peut être représenté par avocat et ne peut en appeler à un tribunal judiciaire de la décision rendue? Quelle sorte de justice émane d’un tel processus donnant ouverture à un casier judiciaire?

Pourquoi la poursuite militaire dispose-t-elle d’un droit d’appel sur des questions mixtes de droit et de fait alors que le droit d’appel de la poursuite civile est limité à des questions de droit seulement? Pourquoi cette différence de traitement préjudiciable à l’accusé poursuivi devant un tribunal militaire alors qu’il a droit à la présomption d’innocence au même titre que celui poursuivi devant un tribunal civil?

Pourquoi la personne jugée et condamnée par un tribunal militaire ne peut faire appel de sa condamnation sur une question de fait alors que celle condamnée par un tribunal civil le peut? Pourquoi cette autre différence de traitement préjudiciable à l’accusé?

À nouveau, faudra-t-il attendre que ce soit le judiciaire qui apporte les correctifs? Pourquoi ne pas faire procéder à une révision complète et systémique du Code de discipline militaire par une équipe multidisciplinaire dans l’optique d’en simplifier le contenu et d’harmoniser ce contenu avec les exigences de la Charte et et les besoins de la discipline militaire?

Sunday, March 20, 2016

Greater protection for Russian military judges -- but why and from whom?

The Russian Legal Information Agency (RAPSI) reports that the
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. 

A new phase in senior officer accountability

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.
So reports the Washington Post.
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.

First hung Court Martial in New Zealand

On Wednesday 16 March, the Court Martial of New Zealand recorded its first "hung panel".  This is a consequence of section 55(1) of the Court Martial Act 2007, which provides that neither a conviction not an acquittal may be entered unless the (usually three) military members of the Court Martial are unanimous.  The requirement for unanimity was a novel development when New Zealand's military justice system was overhauled in 2009 (with the work required to achieve that starting about six years earlier).  It picked up one of the recommendations made by Mr Justice Lewis in the report of the Army and Air Force Courts Martial Committee, 1946 (Cmd. 7608), which reported to the British House of Commons following concerns about the fairness of military justice during World War II.  That recommendation was not adopted at the time by Her Majesty's Government in London, nor by any of Britain's Commonwealth partners, including New Zealand.

The philosophical starting point for section 55(1) of the Court Martial Act is that all of the military members are by definition qualified, experienced and reasonable persons.  Accordingly, no finding should be recorded in respect of which one of them does not agree.  In terms of the criminal standard of "beyond reasonable doubt", it is perhaps especially important that no accused person is convicted if one of the military members harbours such a doubt.

The process to be followed following a "hung panel" is that the presiding Judge must refer the charge back to the Director of Military Prosecutions ("DMP") by way of a memorandum under seal covering the charge sheet.  It is a matter for the DMP to decide whether to trigger a new trial by re-laying the charge sheet before the Registrar of the Court Martial.

Saturday, March 19, 2016

Gen. Sejusa's case on hold in Uganda

The Makindye Barracks court-martial of a Ugandan general officer has been suspended in accordance with an order of the High Court pending a ruling on the accused's long-pending application for retirement. The retirement issue will come on for decision next month. New Vision has the story here.

Friday, March 18, 2016

A disturbing op-ed about the UN, including peacekeeping operations

Last year, peacekeepers from the Republic of Congo arrested a group of civilians, with no legal basis whatsoever, and beat them so badly that one died in custody and the other shortly after in a hospital. In response there was hardly a murmur, and certainly no outrage, from the responsible officials in New York.

Former UN Assistant Secretary General (Field Support) Anthony Banbury, quoted here in The New York Times

Who knew what, and when?

Today's New York Times has this article indicating that at least four senior UN officials had warned of the dangers of sending a troop contingent provided by the Democratic Republic of Congo to peacekeeping duty in the Central African Republic. The fears that DRC personnel would engage in sexual abuse of host state civilians appear to have been well-founded. The UN still does not have its hands around this issue.

A night to remember

The Canadian Press reports that a former Canadian Forces warrant officer has been acquitted on charges arising from a mess dinner. Excerpt:
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."

Tuesday, March 15, 2016

Notes from London

William III
The Editor wishes to thank contributors who have stepped forward with posts during his spring break absence in London. This morning he was at the National Archives at Kew reading records of trial from the 1600s until a power failure plunged the building into darkness. The records tend to be very brief (2-4 pages). Most were from cases tried on the Continent, notably at Bruges and Ghent. A few included pardons signed by Charles IIWilliam III or other senior commanders. One wonders what percentage of 17th century capital sentences were actually carried out. Plus ça change?

Sexual assault issue emerges in New Zealand Defence Force

This just in from New Zealand:
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.

Civilian court orders Nigerian officer released

A civilian court in Nigeria has ordered the release of a serving colonel who has been detained since December 2015. According to this article:
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.

Stop what you are doing and read this essay

Prof. Gregory D. Foster
Prof. Gregory D. Foster of the National Defense University has written this alarming Huffington Post essay about civil-military relations in the United States. He pulls no punches. Excerpt:
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.

Sen. Gillibrand: something big's missing from the administration's military justice bill

“It is telling that a supposedly holistic review of the military justice system completely ignores the role of the commander,” said Sen. Kirsten Gillibrand, a Democrat from New York who has battled with Pentagon leaders over changes to its code. “Until we reform the foundation of the military justice system to remove bias, all efforts to fix its shortcomings will be incomplete.”

New York's Sen. Kirsten Gillibrand,
to ProPublica, on the administration's UCMJ bill

Monday, March 14, 2016

Georgia's peacekeepers

Is Georgia in denial over possible misconduct by its troop contingent in the Central African Republic? This op-ed by Ryan McCarrel, a doctoral candidate in Ireland, examines the issues and statements by Georgian authorities. Excerpt (including some sensible suggestions):
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.

Moment of truth arrives in Islamabad

This week a five-judge bench of Pakistan's Supreme Court will hear appeals from 10 cases tried by military courts under the country's hastily-passed 21st Amendment. Some basic questions are on the table. Details here. The amendment expires in less than10 months. Global Military Justice Reform predicts it will be extended or made permanent.

Sunday, March 13, 2016

Where should this case be tried?

A massive case of procurement fraud has gripped Nigeria. According to this account, among the suspects are a number of former high-ranking officers. Where should they be tried? Apparently, this is a decision for the country's president to make. Does the fact that the armed forces were victims make it more or less appropriate for the cases to be tried in a military court? Does the fact that the accused may be very senior officers raise a question about whether the military will be in a position to afford them a fair trial? Excerpt:
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."

Spain's new Code of Military Justice enters into force

CódigoJMOn 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.

The new Military Criminal Code is both shorter and simpler than its predecessor.  The fundamental idea is that this is a specialized Law that protects exclusively the legal interests of the military, according to the purposes and functions that have been conferred upon it.  The new Military Criminal Code formally proclaims itself an addition to the regular Criminal Code, especially as concerns the Preliminary Chapter and the guarantees that it contains. 

There are also some semantic novelties, the traditional term “in times of war” has been eliminated and “in situation of armed conflict” has been introduced.  The application of the Military Criminal Code has been extended to the Guardia Civil (Civil Guard), given that they are members of the military, although acts of service that are police in nature are excluded.

Typical military crimes are included such as those that attack security and national defense, discipline, the duties of service and against military patrimony, and others that include conduct that harms legal interests that are strictly military included in the ordinary criminal code. Also included are treason, the revelation of secrets and information about security and national defense, abuse of authority, disloyalty, etc.  Insults to Spain and its symbols (the flag, hymn), the Constitution or the King, are included, as well as insults to the military organization and the crime of raiding a military establishment which may also affect civilians if carried out.

Another step towards a fairer Canadian military justice system

In R. v. Korolyk, 2016 CM 1002, Chief Military Judge Mario Dutil was asked by the accused to declare subsection 129(2) of the National Defence Act (Act) unconstitutional as its violates, on the one hand, his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and, on the other hand, the right to be presumed innocent until proven guilty according to law in a fair hearing. These rights are constitutional rights guaranteed by sections 7 and 11 (d) of the Canadian Charter of Rights and Freedoms (Charter).

On a charge of conduct to the prejudice of good order and discipline pursuant to subsection 129(1), subsection (2) creates a presumption which relieves the prosecution of the duty of proving that the act or omission constituting the offence resulted in a prejudice to good order and discipline. The subsection reads:

129. (1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

(2) An act or omission constituting an offence under section 72 or a contravention by any person of
(a) any of the provisions of this Act,
(b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or
(c) any general, garrison, unit, station, standing, local or other orders,is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

Chief Judge Dutil applied the findings of the Court Martial Appeal Court in R. v. Tomczyk, 2012 CMAC 4 and R. v. Winters (S), 2011 CMAC 1 and quoted paragraphs 24 and 25 of the Tomczyk decision which read as follows:
[24] Section 129 is a broad provision that criminalizes any conduct judged prejudicial to good order and discipline in the CF. Subsection 129(1) creates the offence while subsection 129(2) deems a number of activities to be prejudicial. In R. v. Winters (S.), 2011 CMAC 1, 427 N.R. 311 at para. 24 Létourneau J.A. summarized the constituent elements of a section 129 offence as follows:
When a charge is laid under section 129, other than the blameworthy state of mind of the accused, the prosecution must establish beyond a reasonable doubt the existence of an act or omission whose consequence is prejudicial to good order and discipline.
[25] Proof of prejudice is an essential element of the offence. The conduct must have been actually prejudicial (Winters, supra, paras. 24-25). According to R. v. Jones, 2002 CMAC 11 at para. 7, the standard of proof is that of proof beyond a reasonable doubt. However, prejudice may be inferred if, according to the evidence, prejudice is clearly the natural consequence of proven acts; see R. v. Bradt (B.P.), 2010 CMAC 2, 414 N.R. 219 at paras. 40-41.
Judge Dutil concluded that subsection 129(2) was unconstitutional in that it violates the presumption of innocence protected by s.11(d) of the Charter. Judge Dutil relied for his conclusion on the principles laid out by the Supreme Court of Canada in R. v. Downey, (1992) 2 S.C.R. 10 with respect to the presumption of innocence. At page 29 of the Downey decision, Cory J. wrote:

I - The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt.
II - If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on a balance of probabilities either an element of an offence or an excuse, then it contravenes s.11 (d). Such a provision would permit a conviction in spite of a reasonable doubt.
III - Even if a rational connection exists between the established fact and the fact to be presumed, this would be insufficient to make valid a presumption requiring the accused to disprove an element of the offence.
IV - Legislation which substitutes proof of one element for proof of an essential element will not infringe the presumption of innocence if as a result of the proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the other element. To put it another way, the statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other. However, the statutory presumption will infringe s.11 (d) if it requires the trier of fact to convict in spite of a reasonable doubt.
V - A permissive assumption from which a trier of fact may but not must draw an inference of guilt will not infringe s. 11 (d).
VI - A provision that might have been intended to play a minor role in providing relief from conviction will nonetheless contravene the Charter if the provision (such as the truth of a statement) must be established by the accused (see Keegstra, supra).
VII - It must of course be remembered that statutory presumptions which infringe s.11 (d) may still be justified pursuant to s. 1 of the Charter. (As for example in Keegstra, supra.)
Subsection 129(2) creates an irrefutable presumption of prejudice even if, as Judge Dutil pointed out at para. 20 of his decision, “the order is questionably not related to a military duty, unlawful or abusive”.

The prosecution having omitted to file evidence that could save the impugned provision under section 1 of the Charter, Judge Dutil found and declared that subsection 129(2) is:

void in so far 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”.