Saturday, April 30, 2016

Mexican brigadier general jailed by civilian court

For the first time, a senior Mexican officer has been sentenced by a civilian court. In this case, a brigadier general was sentenced to 52 years and 6 months' confinement for homicide, torture, and disappearance of a body. The court also ordered that the victims be compensated. Details here, in Spanish.

Pakistani military justice

For a friendly summary of Pakistan's military justice, consider this article by a retired officer. "The Army has its own effective system of accountability which is a routine process and is not publicized to protect its decorum."


Sen. McCaskill on the Protect Our Defenders report

Sen. Claire McCaskill
Sen. Claire McCaskill (D-MO) has reacted to the Protect Our Defenders report that indicated the Pentagon had misled Congress in connection with a proposal to shift charging authority away from commanders:
McCaskill said commanders were not the problem. 
If the Pentagon “misrepresented that data, no one will be tougher on them than I will, than ([Sen. Joni] Ernst) or the rest of us who advocated for commanders continuing to have a role,” McCaskill said. 
But, she said, “commanders were never the problem in terms of cases being brought forward. The problems were not getting support at the beginning of the process. …That is why the reforms that we have enacted address that problem.”
Sen. McCaskill has opposed the Military Justice Improvement Act sponsored by Sen. Kirsten E. Gillibrand of New York. Details here.

A matter of judicial independence

Hon.(Col.)  James L. Pohl
The New York Times has run an Associated Press report that a military commission judge has entered an unusual order in one of the Guantánamo cases:
The military judge presiding over the Sept. 11 war crimes proceedings at Guantánamo Bay has said in a ruling that he will eventually lift his order prohibiting female guards from having physical contact with the five defendants while transporting them around the American base in Cuba. 
But the judge, Col. James Pohl of the Army, also said he would keep the ban in place for six more months, according to the order, which was disclosed to The Associated Press on Friday. That is because of what he termed “inappropriate” public criticism of his ban by Defense Secretary Ashton B. Carter and Gen. Joseph F. Dunford Jr., chairman of the Joint Chiefs of Staff, during an October appearance before Congress. 
Colonel Pohl said in his 39-page ruling that the “disparaging” comments by Mr. Carter and General Dunford could be viewed as creating the appearance that they were trying to influence the death penalty military commission for the five men accused of planning and aiding the Sept. 11, 2001, terrorist attacks.

Thursday, April 28, 2016

Supreme Court of Canada hears Cawthorne, Gagnon cases

The Supreme Court of Canada
On Monday, April 25, 2016, the Supreme Court of Canada heard argument in two military justice cases: Cawthorne and Gagnon. Webcasts of the hearings are being prepared and should be available on the court's website here shortly.

Wednesday, April 27, 2016

We're tracking, well we will be.

Congresswoman Chu
New legislation set to be introduced Tuesday would require the Pentagon to create a database tracking incidents of hazing in the military, carry out an annual survey of U.S. troops on the issue and boost training so it is better recognized and handled.
The bill is called the Harry Lew Military Hazing Accountability and Prevention Act, said Rep. Judy Chu (D-Calif.), who crafted the legislation and named it after her nephew.

The recommendations stem from a report released in February by the Government Accountability Office.

A Royal Marine and an ex-Marine have been convicted of playing a part in an initiation ceremony which saw a new recruit lie in a paddling pool of urine and vomit while eggs were thrown at him.
The Courier (UK) reports.

Pain on Bainbridge

Task & Purpose has posted this story about USS Bainbridge. The CO, Command Master Chief, and former XO have been relieved and a number of others are under the gun. Possible lessons learned:
  • No, don't store fireworks improperly aboard ship (or use MWR funds to acquire them)
  • Or use the RHIB small boat to secretly bring the fireworks aboard
  • Or have a regular for-money poker game in the wardroom
  • Or retain on board a pregnant officer who should have been transferred
  • Or permit personnel to buy "no-shave chits" permitting hair-regulation deviations on patrol
  • Or accelerate following underway replenishment before gear has been stowed
Mast, anyone?

Tuesday, April 26, 2016

The Easter Rising courts-martial

Lord Wimborne
Lord Lieutenant
of Ireland, 1916
One hundred years ago Ireland was rocked by the Easter Rising. The legal aftermath is little known today, and not a pretty picture, as witness this Irish Examiner column by Seán Enright. Excerpts:
When the First World War broke out, the British parliament passed the Defence of the Realm Act, which allowed the court martial of civilians in the event of “military emergency or invasion”. 
The Easter Rising was the first big test of this legislation. With 450 dead and half of Dublin city centre in ruins, the circumstances were ripe for the rule of law to be compromised. 
When General John Maxwell gave the order for the prisoners to be court-martialled, the rebellion had already been suppressed. The prisoners could have been tried by ordinary process of law and most would have struggled to find a defence to a charge of rebellion or riot. 
It was Maxwell’s choice to order trial by court martial, no doubt because it was a reliable tribunal.
* * * 
The law required the judge advocate general (JAG) to provide an independent review of every capital court martial: his decision had force of law. 
By Easter 1916, the JAG, Thomas Milvain, was terminally ill.* The only lawyer sent with Maxwell to Ireland was Second Lieutenant Alfred Bucknill, an admiralty barrister. 
The surviving correspondence suggests Bucknill regarded himself as part of the prosecution team. He was certainly not an officer of the JAG’s office and did not provide the unwelcome scrutiny that came with that post. 
The role of the viceroy 
All prisoners were entitled to petition the viceroy [the Lord Lieutenant] to exercise the royal prerogative of mercy: By law, it was his decision. But in the days after the rebellion, Maxwell swept the civil administration to one side. 
The viceroy, again and again, attempted to reassert the powers of his office. On the night of May 7, the viceroy dined with Maxwell and forcefully argued against more executions. 
But later that night the firing squads were reconvened. The following morning the viceroy cleared his desk, resigned his post, and wrote a cold note to Maxwell. 
“After our conversation last night, I was, I must admit, dismayed to learn that three comparatively unknown insurgents were executed this morning.”
* Not so terminally. He died in 1928. (Footnote added.) 

Will the draft be reinstated?

Er, in Sweden. Consider this Strategy Page Murphy's Law report:
After 2010 mandatory conscription was phased out. But now opinion polls show that over 70 percent of Swedes wanted conscription revived. As a result of this shift in public opinion the government is looking into how to do that. It won’t be the old type of conscription that took nearly all men who were physically, mentally and psychologically able, but a form of conscription that, while seen is fair, did not take everyone. In particular the new type of conscription wants to get the specialists the military needs but are currently in short supplies. That means men who are expert at various types of electronics and software as well as medical and any other unique skill the armed forces needs.

A fall from grace reversed in Moscow

From the Russian Legal Information Agency (RAPSI) we learn of this remarkable reversal of fortunes:
The Moscow Regional Military Court on Friday upheld a lower court’s ruling to expunge conviction of former Army Commander Colonel General Vladimir Chirkin for fraud, RAPSI reported from the courtroom. 
Chirkin can be back to military or public service, according to Russian law. 
On August 14, 2015, the Moscow Garrison Military Court sentenced Chirkin to five years in prison for taking bribes. He was also stripped of the military rank, and state and departmental awards. 
Later the charges were reclassified to fraud and his sentence was changed to a 90,000 ruble ($1,300) fine. Chirkin returned his military rank as well. 
Prosecutors claimed that Chirkin took a bribe to help Major Vladimir Lopanov of the reserves, who had served with the Moscow Military District, receive a one-room apartment to which he was entitled under law. 
After paying the bribe, Lopanov was unable to move into the apartment, which was already occupied by another ex-soldier. Lopanov tried unsuccessfully to get his money back and later complained to a prosecutor’s office. 
Chirkin pleaded not guilty in this case and claimed that the intermediaries deceived Lopanov. They allegedly extorted money from him, using the general’s name as a cover.

Another example of poor reporting

One of the frustrations of trying to follow military justice developments on a global basis is the very uneven quality of the journalism on this subject. Consider this article about civilian court review of a Gambian Armed Forces court-martial arising from a 2014 coup attempt. It provides no clue as to what legal issues the convicted persons, some of whom are under death sentences, have raised. The article describes the trial as having been held in secret. Might that be an issue?

A lively argument in an old case

Judging by this account, it must have been a lively argument in the Supreme Court of India's consideration of the appeal of a former army officer. The Tribune reports:
The Supreme Court today criticised the Army for arresting its own serving officer, who was court martialled for his act of reporting alleged pilferage and misuse of huge quantity of unaccounted/ unauthorised ammunitions and explosives of dangerous nature in 1998. 
The apex court questioned the arrest of the then Major Anand Kumar, who was convicted and sentenced to three years jail term by General Court Martial (GCM) in 2004. 
A Bench headed by Chief Justice TS Thakur, which admitted his appeal against the 2011 orders of Armed Forces Tribunal rejecting challenge to court martial proceedings, said, “How you (army) have arrested the officer. He was a serving Major. 
Without a warrant you jumped the wall and entered his house." 
Additional Solicitor General PS Narasimha submitted that the officer had gone on leave and had been regularly avoiding the serving of warrant and turned the people back. 
"If he is not receiving the warrant or communication, will you go and direct his arrest. Why you are using such power to arrest your own officer of a rank of Major," the bench said while noting the submission of ex-army officer's counsel Sree Prakash Sinha that he has completed his sentence and has been terminated from the service. 
Sinha, appearing for the ex-Major, alleged that in 2000 he was beaten up by Brigadier HC Chawla, then Commanding Officer (CO), who did not like his conduct in reporting the ammunition/explosives issue. 
Kumar submitted that he was also taken into close arrest by the then CO without assigning him an account of charge and was not produced before competent authority for investigation of charge as required by Army Act, Rules and Regulations.
The Armed Forces Tribunal had ruled against Major Kumar. The general court-martial itself was completed 12 years ago. Perhaps the Supreme Court's decision will comment on the unacceptability of this kind of slow justice.

Follow up on the news

Remember the case of the U.S. Marine snipers who were videotaped urinating on the bodies of enemy fighters? One of those Marines is in the news again. The facts of the current case are weird, but what's noteworthy about the Washington Post's story is the summary of the disciplinary actions taken by the Marine Corps against those who were involved in the urination incident. Too lenient? About right? Too harsh?

Civilian lawyer charged in BF military court

Mamadou Traoré, former head of the Burkina Faso bar, has been charged by a military juge d'instruction on suspicion of complicity in a failed putsch last September. He is in pretrial confinement in the military house of detention. Details here, en français. The use of military courts to try civilians is strongly disfavored under human rights treaties.

Sunday, April 24, 2016

Times-Union editorial

Sen. Kirsten Gillibrand
The Albany Times-Union has run this editorial on the controversy concerning whether the Pentagon misled Congress in connection with the proposal to shift charging powers away from non lawyer commanders and to independent prosecutors. Excerpt:
If it turns out the Pentagon misled Congress to defeat the bill, those responsible should be disciplined, and the bill brought back up for a new vote. 
As Sen. [Kirsten] Gillibrand has said, it's not a matter of "if" this bill will be passed — only "when." 
That "when" should be now.

No-Barbs zone in UAE

Two United Arab Emirates soldiers have been arrested for posting a video in which they perform the "Barbs" dance in uniform, according to this report. The notion is that the soldiers showed a lack of respect for the army. There's a link to the video here.

Justice for generals: public information in Pakistan

Dawn, the leading Pakistani daily, pays sustained attention to military legal matters. Its latest contribution, here, discussed the army's lack of transparency when  it comes to adverse administrative or disciplinary action against senior officers. Excerpt:
According to retired Maj-Gen Rashid Qureshi, former Director General Inter Services Public Relations (ISPR), the military’s spokesman releases information with the approval of Chief of General Staff (CGS), who gives the green signal after the consent of the Chief of Army Staff (COAS). 
He explained that the military “in routine” does not make public information regarding dismissal of its officers or punishment awarded to them by the military courts. 
So much so that “even the story of the punishment awarded to a Lt-Gen and Maj-Gen in the NLC [National Logistics Cell] case was shocking to me as well as to other serving and retired officers,” said Qureshi.
Dawn also ran an editorial, praising the actions taken in recent corruption cases but noting miscues in the dissemination of information to the public.
Rather than official comment, the media was given inaccurate early information by a clutch of unnamed military officials. 
Even after clarification was offered about the number of officers acted against — earlier reports had suggested a larger number of officers had been found guilty of corruption — there were no details shared regarding the charges that the officers faced or the findings of the court. 
Nevertheless, it is a beginning — the guilty being found guilty by their own institution suggests a new willingness to focus on professionalism and probity.
Without reliable information on the disposition of cases, it is difficult to see how the public can have confidence in the administration of military justice. 

Saturday, April 23, 2016

The Protect Our Defenders Report

Local news outlets are following up on the Protect Our Defenders report on how cases that could be tried by the civilian courts end up in military courts -- and what that teaches about whether commanders should have charging power. Here's an example, from The Watertown (N.Y.) Daily Times. And from this editorial in The (Glens Falls) Post-Star:
We also believe it is long overdue that our own congresswoman, Rep. Elise Stefanik, change her stand on this issue. As a member of the House Armed Services Committee, she needs to do more to protect our men and women in uniform. 
In an editorial board meeting in January with The Post-Star, she said she backed the military’s position not to change the chain of command regarding sexual assaults. 
When pressed, she cited Fort Drum commanders and female soldiers who said the military conviction rate for sexual assaults was higher than in civilian courts. 
Apparently, she was also lied to.

Gillibrand-Grassley letter to President Obama

Sen. Kirsten Gillibrand
Sen. Chuck Grassley
The joint letter Sens. Chuck Grassley (R-IA) and Kirsten Gillibrand (D-NY) sent to Pres. Barack Obama on April 19, 2016 about information that was provided at a July 13, 2013 Senate Armed Services Committee hearing on sexual assault and in subsequent correspondence to Sen. Gillibrand (who has proposed shifting charging power away from commanders) can be found here. Here is the full text of the letter (from Sen. Grassley's website):
Dear Mr. President: 
We are writing to express our continued concern about the U.S. military’s commitment to ending sexual violence against our nation’s service members. We question whether the Pentagon has accorded this issue the importance it deserves, and our concerns are reinforced by a newly released report by the victims’ advocacy organization Protect Our Defenders, which maintains that the U.S. Department of Defense misled members of Congress during a recent congressional debate over sexual assault in the military, and in a follow-up report by the Associated Press. 
Specifically at issue is the testimony of Admiral James Winnefeld, Jr., which claimed that removing the Pentagon’s chain of command from decisions about whether to prosecute military sexual assault cases would make it more—not less—likely that perpetrators would evade accountability for their crimes.
During a hearing before the U.S. Senate Armed Services Committee on July 18, 2013, the Admiral testified that a “civilian district attorney (DA) refused to take a sexual assault case” and “the chain of command in the military insisted that the case be taken inside the military chain of command.” But for the chain of command, he suggested, “[the perpetrators] would be walking the street right now. The victims would not have had the resolution that they deserved in this case.” Justice depended on “the chain of command insisting that a prosecution be pursued, and it was pursued successfully,” he reiterated. 
Admiral Winnefeld later claimed, in a letter to Senator Gillibrand, that “even in cases where civilian authorities are unwilling or unlikely to act, our commanders consistently insist on going forward in order to achieve accountability, both for the victim and in the interest of military discipline.” He continued, “I fear, however, that the number of prosecutions in these types of cases may well decline if the very commanders who have a vested interest in accountability are stripped of their power to deal with allegations regarding personnel in their units, in favor of detached prosecutors.” The Admiral’s letter accompanied 93 case files that represented the cases commanders decided to pursue upon the declination by district attorneys, although the reasons for declination were not always included. 
Shortly thereafter, Protect Our Defenders sought access to the above-mentioned files through a Freedom of Information Request. Eventually, the organization received some of the files from the Army and Marine Corps, but not the Navy, Air Force or Coast Guard. Having examined the files it received, Protect Our Defenders has stated that they do not support the arguments made by Admiral Winnefeld. They maintain that civilian jurisdictions did not uniformly decline cases. 
The Associated Press (AP) investigation found that the cases cited by defense officials were inaccurately characterized, and that relevant information was even omitted. The report was unable to corroborate the Pentagon’s assertion that military commanders are tougher on sexual assault than civilian legal authorities. Requests made by the AP to the military services for increased access to records and statements were met with silence. 
The AP article revealed a collaborative effort between the military’s legal professionals and local authorities rather than an adversarial relationship portrayed by the military. The AP also found that the Pentagon’s narrative, which has suggested that local jurisdictions are less inclined to pursue sexual assault cases, and that these specific cases might otherwise have gone unprosecuted were it not for commanders’ intervention, to be erroneous. For example, the AP spoke to Kristyna Mills, the district attorney in New York's Jefferson County, which houses Fort Drum. While the Army claimed that the district declined to prosecute a sexual assault case, Ms. Mills said that the decision was made in collaboration with the Army’s legal team. She continued, "It is extremely rare that my office 'declines to prosecute' a case unless there are serious evidentiary issues that we feel cannot be overcome." 
Further, of the 93 cases cited by Pentagon officials, the AP could not identify a single one in which commanders directly intervened to initiate prosecution. According to the report, “Each appears to have followed the steps mandated by the military's legal code: Senior officers cannot refer cases to a general court-martial unless uniformed attorneys known as staff judge advocates have first advised them that the evidence warrants the charges.” In most cases, the AP revealed, local law enforcement referred cases to base prosecutors after mutually agreeing that military lawyers were in a better position to carry out justice.   
In case after case, the AP revealed facts that challenge the Pentagon’s assertion that civilian prosecuting authorities are either electing not to pursue justice, or are incompetently pursuing justice, in cases of military sexual assault. 
The allegations in the Protect Our Defenders report and the AP article include providing inaccurate information to a congressional committee, misleading the Congress, and undermining efforts to make critical reforms to a broken system. Due to the very serious nature of these allegations, we request that you direct an independent investigation into this matter. 
Thank you in advance for your consideration of our request. 

Kirsten Gillibrand
United States Senator 
Chuck Grassley
United States Senator
Admiral Winnefeld was vice chair of the Joint Chiefs of Staff until July 31, 2015.

Presumably the administration's response will be made public.

Chairman of Uganda court-martial dies; trials suspended

Major General Levi Karuhanga, chairman of the Uganda People's Defence Force standing general court-martial, has died. At the time of his death, the court had a number of cases on the docket, including one involving form intelligence chief General David Sejusa. All cases are now in suspense pending the appointment of a new chairman by the country's president, there being no arrangement under current law for anyone to assume the chairmanship automatically. Details here.

Hazing watch

“It is not unusual for Royal Marines to get naked at a social.” Thus spake Royal Marine Ian Tennet in testimony at his court-martial. He is on trial for his role in a sick-making (in every sense) 45 Commando initiation ceremony. Details here and here. One does wonder where the senior noncommissioned officers and commissioned officers were during this evolution.

Where should this case be tried?

Global Military Justice Reform regularly asks the above question -- we should call it Question No. 1 -- where criminal conduct by military personnel may straddle the military/civilian line. Here's one from Ghana. The facts of the case are essentially these: a 16-year-old civilian steals a cellphone from a soldier. The owner of the phone and two other soldiers proceed to beat up the thief to the extent that he requires medical attention. Presumably both the theft and the assault occur off base. Civilian law enforcement -- the Ghana Police Service -- are on the case, although the soldiers remain in the guard room.

Should the case wind up in civilian court or a court-martial (or other military disciplinary action)? Comments welcome (real names only, please).

Friday, April 22, 2016

Pakistan's military courts: the Panama Papers connection?

Here's one The Editor could not have imagined: a member of the Pakistan Senate has suggested that those implicated in offshore investment shenanigans as a result of the leaked Panama Papers be prosecuted in military courts. Details here.
PPP Senator Dr Babar Awan has suggested investigation against the people named in the Panama Papers through military courts, arguing that offshore investments were usually used in drugs which had a close nexus with terrorism.

“Investment in offshore tax havens is an international fraud that comes under the definition of facilitator,” Dr Awan said while talking to reporters at the Supreme Court building here on Thursday.
The 21st Amendment to the Constitution, passed in January 2015, permits the trial of civilians in military courts. The amendment expires in less than nine months -- unless it is extended. Since it took effect a number of suggestions have been floated for the use of these courts for types of prosecutions having precious little or nothing to do with terrorism. Sen. Awan's is only the most recent example. So far as we know from a distance, no steps have been taken to correct the deficiencies in the civilian criminal courts that led to passage of the 21st Amendment.

Thursday, April 21, 2016

San Salvador, the most violent city in the world

In its March 30, 2016 survey of the world's most violent cities, the Economist reported that El Salvador now topped the charts, overtaking Honduras. San Salvador, the capital, is reportedly the most violent city with 188 murders per 100,000 people (San Salvador has a population of approximately 1.9 million.) It is estimated that there are 70,000 gang members in El Salvador, the most notorious are members of Mara Salvatrucha and Barrio 18, the two biggest gangs. They have been at war with each other for decades and the ending of a 15 month truce between the government and the gangs has led to the bloody escalation of violence.

Members of a Salvadoran new special force attend the official launching of their unit at the Armed ForcesThe gangs originated in Los Angeles. When El Salvador's civil war ended in 1992, thousands of illegal migrants were deported by the US back to their home country. They brought back the violent street culture that they had developed in California. Commentators note however that in financial and political terms these gangs are disorganized small fry compared to the mafia or the narco-cartels of Colombia and Mexico.

The government now has sought to respond with a new 1,000 strong special force equipped with helicopters, armored cars and assault weapons. They will target gang leaders in the cities and those who fled the cities for the countryside because of the government crack down. Some gang leaders run their operations from prison. Last month President Salvador Sanchez Ceren declared a state of emergency in seven prisons and transferred 299 high ranking gang members to other prisons. The government pressure has led gang leaders to call for negotiations but the government has refused.

Where should this case be tried?

Here's an interesting choice of forum from Australia: an active duty soldier is being prosecuted in the local civilian court for robbing a bank located on a Royal Australian Air Force base near Sydney in 2014. Details here. Perhaps some reader in Australia can shed led on the jurisdictional issue: was there some reason the case could not be tried in a court-martial? If there was a choice of forums, who resolved it and according to what standards?

Wednesday, April 20, 2016

Haaretz on Israeli military justice

Gideon Levy
Haaretz has run a harsh assessment of Israeli military justice here. Columnist Gideon Levy calls it the "Theater of the Absurd." The piece is prompted by the case of a soldier who killed a wounded Palestinian in Hebron, but cites a variety of other examples in which, in his opinion, the system function unfairly.

No military judges, no courts-martial

Remember how it looked like military justice had ground to a halt in South Africa because there were no judges to try cases? It's still true. Consider the following from this report:
A group of soldiers who faced charges of violating curfew while in the Democratic Republic of Congo (DRC) plan to take the Department of Defence and Military Veterans to court for being dismissed, allegedly without a hearing in a military court, their union said on Monday. 
SA National Defence Union (Sandu) national secretary Pikkie Greeff, said 32 soldiers were dismissed without a hearing, because the military court has come to a standstill over security clearances for judges. 
This came to light after a parliamentary reply to a written question by DA MP Sarel Marais on how many soldiers had been charged with transgressions while serving in the DRC. 
According to the Minister of Defence and Military Veterans, 90 soldiers in South Africa's peace keeping force were charged with transgressions for 2015/16.
Eight were fined R600 at a disciplinary hearing by their commanding officers. Of the remaining 82, 46 were discharged in terms of the Defence Act and 36 could not be tried because of the non assignment of military judges.

Royal Marines initiation case

A court-martial is underway in Portsmouth, trying allegations of mistreatment of Royal Marine Commando recruits. It's not pretty, according to details here. Think urine, vomit, waterboarding, running around naked.

Congress's fix for UN peacekeeper indiscipline

Stars and Stripes reports here on a congressional hearing in which members suggested that the U.S. ought to invoke the Leahy Amendment and withhold foreign aid from troop contributing countries whose personnel commit sex offenses in the course of UN peacekeeping operations. Excerpt:
"What is wrong with the Secretary-General of the U.N.?" [Sen. Bob] Corker asked. "I mean is he just so inept that he can't (keep) this from happening over and over and over again? How do we put up with such inept leadership at the United Nations?" 
Inaction by the U.N. coupled with spiraling budget deficits at home are a recipe for eroding U.S. support to peacekeeping operations, he said. 
Isobel Coleman, the U.S. representative at the U.N. for management and reform, said it's not ineptitude but a reluctance by countries contributing troops to peacekeeping missions "to deal with this issue in the transparent way that it must be dealt with." 
Corker and other committee members pressed State Department officials on whether they have used a U.S. human rights law known as the Leahy amendment to refuse foreign aid to countries whose peacekeepers sexually abused the people they were sent to protect. 
Air Force Maj. Gen. Michael Rothstein of the department's Bureau of Political-Military Affairs said he could not cite an instance of money being withheld. But he told the committee that the U.S. has only recently gotten the visibility into the crimes and the perpetrators that would allow them to block aid.

Tuesday, April 19, 2016

Shenzhen businessman found guilty of bribing military officials

China's Caixin magazine (English version) has just published this report of a case tried in Guangzhou, in which a Shenzhen businessman was found guilty of bribing military officials so that he could use land owned by the military for real estate projects and obtain a military license plate for his company car.   Cars with military (and armed police) license plates are able to ignore traffic laws and avoid paying tolls, as further detailed in this 2013 New York Times report. More on the fortunes made from the sale of military land can be read here. Is this the tip of the iceberg as far as cases involving military corruption are concerned?

Sens. Grassley and Gillibrand have questions

Sen. Chuck Grassley
Senators Chuck Grassley and Kirsten Gillibrand today asked President Barack Obama to look into whether the Defense Department misled the Senate in connection with the proposed Military Justice Improvement Act. Richard Lardner of the Associated Press has the story here. The two legislators'  letter to the White House is not yet available. Sen. Grassley chairs the Committee on the Judiciary.

The Washington Post has this story about the controversy.

Meanwhile, in Lesotho . . .

The Southern Africa Litigation Centre in Johannesburg has posted this informative report on a military justice case in Lesotho. Excerpt:
On Friday 15 April 2016 the Lesotho Court of Appeal heard arguments on a challenge by 23 members of the Lesotho Defence Force (LDF) to decisions relating to their arrests and detention and the Minister of Defence's decision to convene a court martial in the case of Mareka and 22 Others v the Commander of the Lesotho Defence Force and Others
From May 2015, a number of soldiers were apprehended and detained by the LDF. During this time Lt General Mahao (the former commander of the LDF) was shot and killed by members of the LDF. The detained soldiers, together with the late Lt General Mahao were subsequently accused of having plotted a mutiny. In the context of this crisis, the Lesotho government invited the Southern Africa Development Community (SADC) to intervene. SADC and the Lesotho government set up an independent Commission of Inquiry to review the investigations into the mutiny plot allegations and investigate Lt General Mahao's killing. The applicants in the Mareka case sought to cooperate with the Commission of Inquiry. While the Commission commenced its work, the LDF continued to detain the applicants under closed arrest and convened a court martial with a prosecutorial team that included parties alleged to be victims of the mutiny plot. The applicants were prevented from participating in the Commission proceedings. 
The applicants brought a legal challenge to their arrests and detention and to the decision to convene the court martial.
This report is an all-too-rare example of how legal matters ought to be covered: state the facts and the issue(s). The Court of Appeal is expected to decide the case on April 29, 2016.

Military justice bill passed by Alaska legislature

The bill to update the Alaska Code of Military Justice has passed both houses of the legislature. It now goes to the governor for signature. Implementing regulations will follow enactment.

Why was this case tried in military court?

The former warden and three former guards at the civilian prison in Mahdia, Tunisia, have been sentenced to seven years' confinement as a result of the homicides and injuries of inmates in 2011, according to this report. Why were they tried in a military court?

By the numbers

A few moments ago Global Military Justice Reform passed the quarter-million hit mark. These have come from readers in 164 jurisdictions. The blog has had 2555 posts and 367 comments. Many thanks to the readers, contributors and commenters around the world who have made this possible. Comments are especially welcome -- and don't forget to use your real name (nothing anonymous or pseudonymous, please).

The Editor

Monday, April 18, 2016

Did the Pentagon mislead Congress?

Sen. Kirsten Gillibrand
Richard Lardner of the Associated Press has this story raising disturbing questions about whether the armed forces misled Congress in the course of resisting Sen. Kirsten Gillibrand's Military Justice Improvement Act. One of the key arguments advanced in the thus far successful struggle to head off the necessary 60 votes in favor of the bill was that military commanders, who currently have the power to send cases to court-martial, are tougher on sex offenses than are local civilian prosecutors. Not so fast, suggests the AP story.
Local district attorneys and police forces failed to act against U.S. service members who were subsequently prosecuted in military courts for sex crimes, according to internal government records that summarized the outcomes of dozens of cases. But in a number of cases, the steps taken by civilian authorities were described incorrectly or omitted. Other case descriptions were too imprecise to be verified. 
There also is nothing in the records that supports the primary reason the Pentagon told Congress about the cases in the first place: To show top military brass as hard-nosed crime fighters who insisted on taking the cases to trial.
Look for more information today:
The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon's use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.
Editor's note: Isn't there also a logical flaw in the now-debunked claim that commanders will send cases to trial that civilian prosecutors won't, in that the real test is whether commanders will send cases to trial that an independent military prosecutor outside the chain of command would not? Of course, since we do not have such a system, no comparison can currently be made. Alternatively, should the question of who gets to decide which cases go to trial turn on what will generate the most prosecutions (the body count approach relied on by Sen. Claire McCaskill), as opposed to who is best equipped to make the charging decision? (Ask the UK, Canada, Ireland, Australia, New Zealand, Israel, South Africa, Brazil, Singapore, what they think.) In any event, hats off to the AP and Protect Our Defenders. Watch for the Pentagon salvage effort.

Postscript: The report can be accessed via a link on the Protect Our Defenders website.

Sunday, April 17, 2016

Further thoughts from the experts on China's military courts

Chinese military law experts have long decried the absence of a military court law (see these blogposts, for example).  Two of them recently published articles that shed light on the weak status of the military courts and suggestions for reforms: Professor Zhang Jiantian of the Chinese University of Political Science and Law and retired Central Military Commission (CMC)'s legal department official, and Professor Li Youbiao, of the People's Armed Police Institute of Politics.  Professor Zhang's article was published in late November, 2015 in the People's Court Daily (the Supreme People's Court's newspaper) in late November, 2015, while Professor Li's article was republished by a criminal procedure website sponsored by the China University of Political Science and Law. A summary of their views is set out below, followed by a few comments.

Historical background

Work on the drafting of military court legislation began in 1955, and drafting was re-started after the Cultural Revolution.  In the 1990's, the central Party authorities approved the inclusion by the National People's Congress Standing Committee (NPC SC)  of the "military court organizational law" in the national legislative plan, but the draft never saw the light of day.

The issues

The Chinese military courts are under "dual leadership"--by law, they are under the leadership of the Supreme People's Court, but their personnel headcount and finances are are under the military, in particular the political department.  It has been this way since the middle of 1957.  The Political Work Regulations, amended in 1991, specifically provide that the political department supervises the military courts and military procuratorate. This, in the view of Professor Zhang, violates the law and constitution.  Under current legislation, military judges and prosecutors are appointed and removed just as any military cadre (official).  Although military judges (and prosecutors) may be well intentioned, when they are dealing with cases they inevitably consider their own self-interest because they are dependent on others in being appointed or removed from office, and for any benefits [i.e. housing] that they enjoy.

Although in 2004 the Supreme People's Court (SPC) issued a document with the PLA General Political Department on ranking judges, it has never been able to be implemented properly. A core issue is the control of headcount.  Conflict between the General Staffing Department and the drafters of legislation on the military courts and procuratorate meant that the draft was not able to move forward.

Professor Li also decries the lack of transparency concerning the military courts. He says "sunshine is the best anti-corruption drug."

Looking forward

The cases of Generals Xu Caihou and Xu Junshan have brought the military courts and procuratorate to the attention of the public and the leadership and now is the time for taking the military courts out from under the Political Departments. As Professor Li says, given the status of military judicial (judges and prosecutors) personnel, it is difficult for them to be independent in handling cases.  "The independence of judges is the core of judicial independence.  If judges are not independent, there cannot be real judicial independence."

Comment from an outside observer

While I understand the desire of senior Chinese military law experts to have a law that puts the military courts on firm ground, I believe it is unlikely to happen until the judicial reforms underway in the civilian courts are settled, because those reforms relate to some of the fundamental institutions within a court (see my analysis of some of the judicial reforms underway so far).  As the professors have pointed out (and one of the points I mention in my analysis), one of the principles of the judicial reforms is that judicial power is a (central) state power.  What does this principle mean for the military courts?  The SPC is intending to reform judicial committees (a committee of senior judges that decides cases without having heard the case--my analysis links to further explanations)--it seems likely that those institutional reforms, once settled, will be implemented in the military courts as well. I believe that it is only when there is certainty about the judicial reforms in the civilian system that a military court law will be promulgated.
In the meantime, we will need to wait for further information on what the transfer of the military courts to the new political legal committee means in practice.  We are likely to hear further from Professors Zhang and Li on this.

The Port Chicago Mutiny: has the time come for exoneration?

There's new pressure to exonerate the Port Chicago mutineers. Will it be enough? Gary Peterson has this column in The Mercury News. Excerpt:
Refresher: On July 17, 1944, a ship being loaded with munitions at the docks in Port Chicago north of Concord was virtually vaporized by two cataclysmic explosions that killed 320 men -- 202 of them African-American sailors. The blasts were felt as far away as Boulder City, Nevada. It was the worst homefront disaster of World War II.
Shortly thereafter, with white officers on 30 days' leave granted them after the tragedy, 258 African-American enlisted men were ordered back to the docks to resume the supremely hazardous duty of loading bombs onto ships at Port Chicago. They refused.

After being threatened with punishment, 208 relented. Fifty stood fast. They were charged with mutiny and sentenced to prison.

Remember Major Zaidi Ahmad?

Ex-Major Zaidi Ahmad, RMAF
Who remembers Royal Malaysian Air Force Major Zaidi Ahmad, left, who was court-martialed and dismissed the service for making public information about deficiencies in the country's inky scheme for reducing vote fraud? Well, he's back in the news, working for Penang State's Chief Minister Lim Guan Eng and helping deal with some dirty tricks. His portfolio includes safety and the Equitable Economic Agenda, according to this report.

What's the opposite of unauthorized absence?

Military lawyers around the world are familiar with AWOL, unauthorized absence, and the whole colorful range of terms for absentees. But what if the tables are turned and the problem is an imposter in the barracks? The Fayetteville Observer's Amanda Dolasinski has the story here.

Torture by Mexican soldiers and police: defense secretary apologizes

“Let it be clear: We must not, nor can we confront illegality with more illegality.”

Mexican Defense Secretary Gen. Salvador Cienfuegos Zepeda

If you want to know what he was talking about, click here.

Saturday, April 16, 2016

Military justice in Thailand

Readers of Global Military Justice Reform have seen many posts about the improper use of military courts to try civilians in Thailand, but here is a story about hard-core military justice, i.e., the kind that is imposed on military personnel for service-connected misconduct. We reprint this letter to the editor in full:
Privates Songtham Mudmad and Chatpisut Chumphan were brutally tortured in camp. Songtham’s genitals were burnt with candles and he died of brain haemorrhage and severe bruising. [Bold type in original.]
Chatpisut alleged that an officer had stolen their money and, when challenged, the officer allegedly had his men torture his accusers in front of other conscripts. Defence Minister Prawit Wongsuwon found six soldiers guilty of the killing and torture and sentenced them to detention - but has justice been served? 
First, Sub-Lieutenant Patthanat Lertchaikul, the highest-ranking officer involved, was sentenced to just 30 days' detention, far less than the 45 days others were given. Yet higher ranks should be role models for lower ranks, since they should know better what's right and what's wrong. Did his higher rank entitle Patthanat to a lighter sentence? 
Second, General Prawit said that the culprits would also face criminal lawsuits brought by the victims' relatives. Does that mean that, if the relatives are "persuaded" to not bring charges, the state will not prosecute them for murder? That's hardly justice, and instead condones the continuing violence against conscripts that has resulted in 22 high-profile deaths of conscripts and suspects detained in military barracks over the past eight years. 
Military justice must not be a contradiction in terms, an oxymoron.
Mistreatment of conscripted soldiers has been a military justice flashpoint in several countries, such as South Korea and Taiwan, in recent years. 

Second Permyakov trial continues

The Armenian multiple-murder trial of Russian soldier Valery Permyakov is continuing on the Russians' military base in Gyumri. A good status report appears here. Permyakov has already been convicted of military offenses by a Russian court-martial. If he refuses to testify in the Armenia case, the video of his interrogation can be admitted in evidence.

Friday, April 15, 2016

A notable acquittal in Nigeria

Femi Falana, SAN
A Nigerian Army court-martial has acquitted a brigadier general of all charges in a court-martial. According to this account, the officer was accused of cowardice, failure to perform military duty and loss of property.
A shocking revelation during the trial was that the then General Officer Commanding HQ 7 Division, Maj Gen MY Ibrahim had prior knowledge of the constraints of the HQ 21 Bde headed by Brig Gen [J.O.Akomolafe but did not address them. Several requests sent to him by Brig Gen Akomolafe for ammunition replenishment for troops, and for repair teams to take care of repairs of the equipment were deliberately ignored or not granted. 
Perhaps more shocking was the evidence that he got early information of the impending attack from the then former Chief of Army Staff, Lt Gen JT Minimah (Rtd), but intentionally refused to pass the information to the brigade commander. Furthermore, a last-minute appeal to him one day before the attack by Brig Gen Akomolafe for urgent equipment and ammunitions to fight and safeguard Bama was also denied.
Brig. Gen. Akomolafe was represented by one of Nigeria's leading advocate, Femi Falana, SAN, and Femi Oyebanji, a retired military officer.

Can the Supreme Court of Pakistan review a court-martial?

That seems to be the question presented in the case of two retired Army colonels in which the government has been directed to file a response. Their prosecution arose from an attempted coup d'état in 1995. Details, sort of, here.

The law is not compulsory until it is published

Diogenes Martinez, the Paraguayan Minister of Defense, met with the National Commission on Constitutional Matters of the Senate in order to analyze the application, in general, of the Code of Military Criminal Law. Fernando Lugo, a former Catholic bishop and former President of Paraguay (2008-2012), who was impeached in 2012, is now a member of the Senate and the president of this National Commission. He said that the Defense Minister had placed himself at the disposition of the National Commission in order to clear up the matter of the failure to publish the military laws.

The three laws that comprise the Paraguayan Military Justice system: Laws 840 (the Organic Law of Military Tribunals), 843 (the Code of Military Criminal Law, and 844 (the Code of Military Criminal Procedure in time of war and peace), were promulgated in 1980 but never published in the Official Gazette, in violation of the Paraguayan Constitution. Article 231 of the Constitution provides that "The law is not compulsory until it has been promulgated and published." As a consequence of the failure to publish these laws the entire military justice system in Paraguay, including the judgments that the military courts have rendered, is invalid.

Lugo explained that if the Executive doesn't publish these laws, the President of the National Congress can do so. In the meantime, cases of members of the military who were prosecuted under these laws have begun to go to the Inter-American Commission on Human Rights.

Right to decline NJP survives -- so far -- in Alaska legislature

The bill to update Alaska's 1955 Code of Military Justice has now moved to the Senate Judiciary Committee as the days count down towards the end of the legislative session. Of interest is a controversy over whether Alaska National Guard personnel should have the right to turn down nonjudicial punishment, as active duty personnel do if they are not attached to or embarked in a vessel. An amendment to ensure that right was passed over State National Guard objection. Details here.