Happy Fourth of July weekend

Sorry, George.

Have a safe holiday weekend, everyone.

Ruling awaited on Bouterse case

Hon. Cynthia Valstein-Montnor

The Daily Mail reports:

Suriname's military court on Thursday postponed a final decision on whether President Desi Bouterse will go back on trial for the killings of political opponents when he was a military dictator in 1982. 

Judge Cynthia Valstein-Montnor said an order from Bouterse to halt proceedings against him might apply to prosecutors but it did not affect judges on the military court. She said a final decision would be announced Aug. 5.

Reorganization of Chinese military courts revealed to outside world

On June 29, 2016, the reorganized structure of the Chinese courts, including the Chinese military courts, was made known in a one-page notice (dated in April) on a webpage of the Supreme People's Court (SPC). The graphic above is of the entire Chinese court system. The large orange sun is the SPC, while the red circle is the PLA Military Court. The turquoise circle below is the Theater Command Military Court, while the dark blue circle below is the basic level military court.

The reorganized courts (and their file numbers) are listed above and below:

The Theater Command Military Courts are intermediate level courts, while the number of basic level courts are reduced considerably from the previous structure.  Once further information is available about the jurisdiction, personnel appointment, and financing of the reconstituted courts, it will be reported on this blog.

Prof. Noah Feldman: decriminalize adultery

Harvard Law School Professor Noah Feldman has written a persuasive column for Bloomberg View, arguing that the time has come for the U.S. armed forces to end the criminalization of adultery. Excerpt:

Some 16 states still criminalize adultery. But those laws are, I think, unconstitutional under the Lawrence precedent. But because they are rarely or never enforced, they are unlikely to come to court. 

That leaves the military’s adultery ban, which is enforced, as the logical subject of a constitutional challenge. 

The military would no doubt argue that its special interests in discipline should be treated deferentially by the courts, and that adultery by uniformed personnel is especially harmful. 

But those are weak and unconvincing arguments, which would be rightfully rejected in the context of gay sex. Private, consensual sexual behavior should be treated as a fundamental right that applies even to military personnel. The military doesn’t need to regulate people’s consensual sex lives to enforce discipline.

What do you think: abolish or keep?

"Back on the record"

The website of the U.S. Court of Appeals for the Armed Forces is once again accessible to the public. (H/T to Global Military Justice Reform contributor Phil Cave.)

Government agencies are known to have plans in place for emergencies. Perhaps it would be a good idea for the Court of Appeals to have a standby arrangement so that public access to its decisions and orders could be shifted to a different server if the need arises. The latest interruption adds a further reason for the Court (as well as the service courts of criminal appeals) to shift over to the federal courts' PACER system.

Desi Bouterse and impunity

The leader of Suriname has taken steps to frustrate a recent court decision permitting him to be tried despite an amnesty. The Associated Press reports from Paramaribo:

President Desi Bouterse sought again Wednesday to prevent authorities from putting him back on trial for the abduction and summary execution of 15 political opponents when he was the military dictator of this South American nation. 

Bouterse instructed Suriname's attorney general to immediately halt proceedings against him, invoking an article of the constitution that allows the president to issue such an order in the interests of national security. 

The action follows a June court ruling that invalidated an amnesty law pushed through parliament by Bouterse's supporters after he was elected president. The court ordered the resumption of the trial against him and 24 co-defendants.

R.I.P., Little White

The Los Angeles Times has this article on a nasty incident in Taiwan: a number of Taiwanese marines hanged a little dog, and videotaped the misconduct. Not surprisingly, people are in a foul mood about this, and disciplinary action seems inevitable. Excerpt:

Various reports put the number of marines involved in the incident at three, four and five. Four marines put out a video of themselves, in uniform, bowing in apology and calling the dog’s death a mistake. The video had received more than 1.7 million views as of Wednesday and a raft of comments questioning the apology’s sincerity.

Ware commanders

Just Security has a post alerting us to a recent decision of the International Criminal Court in The Prosecutor v. Jean-Pierre Bemba Gombo.

Last week, the International Criminal Court (ICC) handed down its third, and in some ways most important, sentence in its short existence. The court sentenced Jean-Pierre Bemba, a former military commander from the Democratic Republic of the Congo (DRC), to 18 years’ imprisonment for the crimes of murder, rape, and pillage committed by his soldiers in the Central African Republic (CAR) in 2002–2003.

The court convicted Bemba not for directing or participating directly in the crimes, but for failing to prevent them as a commander, finding that he was aware they were being committed by his subordinates and that he had the means to stop them (at least in part).

Ugandan M.P. among the civilians on trial before court-martial

Uganda's general court-martial is back in business, with a new case involving 23 defendants, four of whom (including one Member of Parliament) are civilians. From The Independent:

The Court Martial has charged and remanded twenty three suspects including Nakawa Division Member of Parliament Michael Kabaziguruka accused of offenses relating to security and treachery. 

Michael Kabaziguruka and three others have however objected to the jurisdiction of a military court trying them yet they are civilians. Kabaziguruka refused to plead to any charges on this ground in addition to having no defense attorney.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts.

Forum on the Azaria case

Maj. Gen. (Ret)
Orna Barbivai

The Jerusalem Center for Ethics has sponsored a panel discussion of the case of IDF Sgt. Elor Azaria, summarized here by the Jerusalem Post. Excerpt:

Orna Barbivai, former maj.-gen. and head of the IDF Manpower Directorate, slammed many of those mouthing off in public, saying they cannot understand what was happening without having been there, and without operational experience. 

She also blasted as “complete foolishness” people who criticize the army saying it “supports commanders, but not its soldiers,” meaning that it covers for higher-ranking officials, but leaves low-level soldiers out to dry when things get heated.

For U.S. practitioners: mind the rules

Global Military Justice Reform has received the following communication from the Clerk's Office, U.S. Army Court of Criminal Appeals:

We are requesting your assistance in helping to get the word out to both military and civilian counsel that when drafting a filing intended for the court, that the filing complies with the requirements under Rule 15 (a) of the Joint Rules and Rule 15.1 (a-g); Rule 15.3 (b); and Rule 15.3 (b)(1) of this Court's Rules of Practice and Procedure. As of late we have been seeing an increase in deviation from these formatting requirements. 

The Clerk of Court may, at its discretion, reject any filing that does not comply and a rejected filing that was submitted to the court would not serve to toll the deadline for submission. 

The Army Court's rules and the Joint Rules can be found here.

Stories we are following

Every so often Global Military Justice Reform highlights some of the major stories we are following. In no particular order, here's a current roster -- subject to change as events unfold:

• use of military courts to try civilians (Pakistan, Egypt, Thailand, Uganda)
• UN peacekeeper discipline
• tension between the Defence Forces and soldiers' union in South Africa
• constitutional challenge to new Mexican military justice legislation
• congressional action -- sans any public hearings -- on Obama administration reform proposals (and inaction on Sen. Kerstin Gillibrand's proposal to shift disposition power from commanders to prosecutors independent of the chain of command)
• pending military justice cases in the Supreme Court of Canada
• tech and social media and military justice
• Elor Azaria trial in Israel

What would you add? Please comment (real names only, please).

Cracking the door open on Pakistan's military courts

Sen. Farhatullah Babar

From Islamabad, a dissenting view on Pakistan's military courts:

A senior opposition leader on Tuesday called for human rights representatives to be allowed to oversee proceedings of secret military tribunals set up to try civilians accused of terrorism. 

Speaking to the Senate Functional Committee on Human Rights here today, Pakistan People's Party (PPP) Senator Farhatullah Babar said that no one gets to know about the convictions of military courts. 

He added that military courts were handing over death sentences only to civilians instead of terrorists. 

He urged that members of the National Commission for Human Rights be allowed to oversee the secret trials under the military courts.

"Oversee" in this context seems to mean "observe" rather than "supervise." Sen. Babar's suggestion is like giving an aspirin to a patient who is mortally ill--if that.

Militarized Thai justice

Thai Lawyers for Human Rights has issued a major report on the militarization of the Thai justice system. Details from the report can be found here in the Bangkok Post.

Bishop Berkeley on E Street, N.W.

The website for the U.S. Court of Appeals for the Armed Forces continues to be down.

Not military justice, but . . .

Lieut. Gen. Gadi Eisenkot

Haaretz reports on possible changes in Israel's policy on soldiers who fall into enemy hands:

Israel's military chief has recently ordered to revoke the so-called Hannibal procedure, aimed at averting soldiers' capture even at a risk of endangering them, and formulate a new protocol in its place. 

A senior source in the Israel Defense Forces said Monday night that Chief of Staff Maj. [sic] Gen. Gadi Eisenkot's orders were given several weeks ago, before the distribution of a draft state comptroller report which also relates to the Hannibal procedure.

Other chapters of the comptroller's findings, whose drafts have been released as well, deal with issues like the handling of Hamas’ cross-border attack tunnels and the functioning of the diplomatic-security cabinet.

Sources who read the latest chapter said the most noteworthy recommendation relates to the Hannibal procedure, which dates back to the 1980s but was revised after Hamas abducted soldier Gilad Shalit in 2006. 

Currently, the procedure requires soldiers to try and thwart being captured even if doing so – for instance, by shooting at the abductors – might endanger the captured soldier’s life. 

Though the procedure doesn’t permit soldiers to intentionally kill a kidnapped comrade, many officers and soldiers in the field have interpreted it in this way.

Adultery and discrimination

An interesting argument has been advanced in a U.S. Air Force court-martial. According to this Colorado Springs Gazette article:

Lawyers for a Schriever Air Force Base colonel argued Monday that a half-dozen adultery charges against him should be thrown out because the military's law banning extramarital sex discriminates against heterosexuals. 

Col. Eugene Marcus Caughey is headed for an August court-martial on charges of rape, assault, taking a dirty selfie and the adultery counts. He was in court Monday for a formal reading of the charges and to argue pretrial motions. 

Maj. Keith Meister, one of three attorneys defending Caughey, told Air Force judge Col. Wes Moore that the military's definition of adultery as sex between a man and a woman hasn't keep place with its definition of marriage, which now includes same-sex couples. That's because the military's adultery law requires "sexual intercourse" as an element of guilt, which the Pentagon defines as an act between a man and a woman.

The defense motion mistakenly invokes the equal protection clause of the Fourteenth Amendment:

Caughey's defense team maintains that because gay people get a pass, the charges violate the colonel's rights under the 14th Amendment, which mandates equal protection under law.

The Fourteenth Amendment applies only to the states, and not to the federal government. There is, however, an equal protection component to Fifth Amendment due process. E.g., Bolling v. Sharpe, 347 U.S. 497 (1954).

Military justice and tech

From Haaretz's coverage of today's proceedings in the Elor Azaria manslaughter court-martial:

A Military Police investigator testified on Sunday morning at the trial of Elor Azaria, the soldier accused of killing a prone Palestinian assailant in Hebron, saying that after the shooting a prominent resident of Hebron suggested to Azaria's father that he take a good lawyer. 

According to the investigator, a phone call took place between Ofer Ohana, a paramedic who was at the scene of the shooting and a well-known figure in Hebron, and Charlie Azaria, the soldier's father. In a WhatsApp conversation between the two, the former suggested that they take a good lawyer.

Has WhatsApp figured in any other case, or is this a first?

Military justice and social media -- a new twist

YnetNews reports on a new case prompted by the high-profile manslaughter court-martial of IDF Sgt. Elor Azariah:

Sgt. [sic; apparently should be Cpl.] D., who was present when Hebron soldier Cpl. [sic; should be Sgt.] Elor Azaria shot Abed al Fatah a-Sharif, a neutralized terrorist, will be put on trial himself for writing a Facebook post accusing Kfir Brigade company commander Tom Na'aman of giving false testimony against Azaria; IDF responded to the accu[s]ation, saying Cpl. D. 'did not see the incident.'

Cpl. D will be tried in the Israeli equivalent of nonjudicial punishment:

The IDF rejected Cpl. D.’s request for a military trial, fearing it would draw further media attention. Cpl. D. is due to stand trial before a senior officer, while Azaria’s trial is set to continue on Sunday. 

That Colombian deal

The Washington Post points out that one of the unresolved issues in the recent Havana agreement between the government of Colombia and FARC concerns the adjudication of war crimes on both sides.

The two sides must settle on a mechanism for selecting judges who will preside over special peace tribunals evaluating the war crimes of guerrillas as well as the military.

This is a tough one given the mistrust between the parties.

Brexit and military justice reform

B+1. All over the world, people are trying to gauge the potential consequences of Britain's departure from the European Union. Some of this examination is urgent, some less so. Are there consequences for military justice (including reform)? Without suggesting a Doomsday scenario, here are some initial questions:

• If Brexit leads to further secessions, will states that have not felt a need to maintain large standing military establishments have to rethink those policies (e.g., budgets, conscription, foreign operations), and will that spark a renewal of interest in military justice systems in countries that have largely abandoned classic separate military justice systems.
• If so, what will be the shape of renewed/revived European military justice systems?
• What will be the impact outside Europe if there is a shift in the current European military justice paradigm?
• If Scotland secedes from the UK and remains in the EU, will it revive a Scottish army, and if it does, what will be the arrangements for the administration of military justice?
• Might the same impulse(s) that led to Brexit also lead Britain (or what is left of it after Scottish secession) to abandon adherence to the European Convention on Human Rights and submission to the European Court of Human Rights? If so, will that in turn spark retrograde changes in British military justice?
• If Brexit and its fallout embolden non-Western European powers to increase aggressive military policies, what effect, if any, might that have on efforts to reform the U.S. military justice system (e.g., abandonment of commander-centric disposition authority for major offenses)?

Comments on any or all of these questions are invited. Real names only, please.

Malakal Massacre: UN peacekeeping and accountability

Voice of America has this report on the fallout of UN peacekeeping deficiencies that led to a massacre earlier this year in South Sudan:

The spokesman for the United Nations Department of Peacekeeping Operations said the U.N. has accepted responsibility for its lack of swift response during the February massacre of internally displaced persons in the South Sudanese city of Malakal. 

The U.N.’s Nick Birnback said some peacekeepers did not respond in time to protect civilians who were attacked by gunmen Feb. 17 and 18 at the U.N. Protection of Civilian (POC) compound. At the time, the U.N. had contingents from Rwanda, Ethiopia and India in Malakal. Thirty people were killed, and 123 others were wounded in the attacks. 

“In the process of an inquiry, we looked at the systems that were in place and how those systems could be strengthened, but we also looked at individual unit responsibility. The U.N. peacekeeping is currently engaging directly with the concerned troop-contributing countries to address the underperformance of certain UNMISS (United Nation Mission in South Sudan) personnel, and that includes training and preparedness.” 

Birnback said the U.N. Peacekeeping Department will repatriate some peacekeepers and their commanders who were on duty during the attack. Birnback confirmed that the U.N. Peacekeeping Department has been investigating the Malakal attack in South Sudan in order to prevent it from happening again in future peacekeeping operations. 

“There will be action taken, whether [against] individual units as a whole or those in command of certain units.” 

Birnback said the U.N. has been reviewing its posture and stepping up measures to improve safety in what he terms “a very challenging environment.” Birnback pointed out that responsibility also rests with those who carried out the attack. He added the U.N. will send back those peacekeepers and commanders who did not respond appropriately during the attack. 

“We work with our troop-contributing countries. We need them. We thank them for their service. But when something happens that involves a unit not responding in a way that it needed to, it’s logical that both us and the troop-contributing country in question will take whatever action is necessary to make sure that does not happen again, and that does include repatriation of individual units when appropriate and repatriation of commanders who did not live up to their responsibility.” 

What actual steps are taken in light of this incident will be instructive as to the viability of the current arrangements for UN peacekeeper discipline and accountability. So far, the UN gets a D.

Jurisdiction over Spain's Guardia Civil

A Citizens for Cantabria candidate for the Chamber of Deputies has assured the Union of Civil Guards that his faction will work to prevent the application of the Code of Military Justice to the Guardia Civil for disciplinary offenses except in extraordinary cases. Details here (in Spanish).

Publish or perish?

Pres. Horacio Cartes

As reported here, the Paraguayan Minister of National Defense is resisting Thursday's demand by the country's Senate that three laws governing military justice be published, calling it an effort to destabilize the country. And so this strange legal fight continues. The problem is not only embarrassment to President Horacio Cartes, but the fact that some number of past court-martial convictions will presumably have to be invalidated if publication in the Presidential Gazette was required for the laws to take effect.

Mexican Supreme Court accepts case challenging military justice reform legislation

The Mexican Supreme Court has ruled that the constitutional case recently filed by the National Commission on Human Rights challenging the 2015 military justice reform legislation is admissible. Revolución 3.0 reports:

According to the CNDH, 44 articles violate human rights such as: the prohibition on extension of military jurisdiction over civilians; rights to individual freedom, access to information, freedom of movement, due process, legal security, privacy, protection of personal data, and the presumption of innocence, and the principles of pro persona and legality.

New military justice code coming for Puerto Rico National Guard

The Puerto Rico House of Representatives has passed a bill updating the 1969 code of military justice that currently covers the commonwealth's National Guard. Details here (in Spanish). Only recently, Alaska enacted a new State Code of Military Justice, replacing the one enacted before statehood.

The costs of drug testing, and the benefits

The Irish Mirror reports on drug testing in the Defence Forces:

The Defence Forces have paid almost €200,000 to a private company to carry out random drug testing on its personnel in the past four years. 

At least 105 members of the services have tested positive since compulsory checks were introduced in 2003. 

The screening team is comprised of Defence Forces staff, Medical Corps personnel and civilian collection officers. 

Alere Toxicology PLC has held the contract for the tests since 2012, during which time it has been paid €199,673. 

In that period 51 military personnel have tested positive while approximately 5,375 random checks were carried out.

Class action coming against SANDF

Soldiers who were suspended for years by the South African National Defence Force are going to court for, among other things, career injury. Details here. Excerpt:

Barely a month after the chief of the defence force, General Solly Shoke, recalled 509 soldiers he had placed on special leave for marching to the Union Buildings in 2009, they are planning to claim millions of rands in a class action. 

Although they sat at home with full pay for six years and were returned to work three weeks ago, two of these soldiers submitted papers to the North Gauteng High Court in order to set up the class action against their boss. 

The first step of approval from the court would be to hear the soldiers’ claims in one class action.

In justifying the reasons for the class action against the defence force, the South African National Defence Union is blaming the military for having squandered at least R560 million on potential salaries and benefits for the soldiers, who were at home during their suspension. The trial was subsequently abandoned. 

The union believes it would cost the military a lot more if the class action is successful. 

The soldiers want to claim for the “potential” damages they have suffered due to not being able to further their careers or attend advancement courses throughout the period of their suspension.

Sounds like a tough case if the soldiers were being paid during their suspension from duty. 

One week down . . .

The website for the U.S. Court of Appeals for the Armed Forces has been offline for a week. Perhaps someone knowledgeable might post a comment (real names only, please) explaining what the problem is.

A step backward in Turkey

Turkey has passed new legislation that will largely insulate military personnel from the jurisdiction of civilian courts. According to this Wall Stret Journal report,

Prosecutors investigating complaints of abuse in counterterrorism operations will now be required to seek the prime minister’s approval before filing charges against any top general. The defense or interior ministries would have to authorize any charges against lower-ranking military personnel. 

Officers and soldiers who end up being charged would go to trial in military courts, under a provision of the law that reduces the jurisdiction of civilian courts.

The case of the amazing shrinking jury

New Russian legislation reduces the size of military district court military juries from 12 persons to eight. In garrison military courts the jury would consist of six jurors. Details here.

Fighting words

“Your Honor, I will tell you and tell you for the very last time, if the courts decide to interfere into military matters, it will bring very grave situations in this country!,” he warned.

Liberian Ministry of Defense Counselor Alexander Saryeah

during habeas corpus proceedings described here

Reform and its limits

A couple of years ago Taiwan hastily upended its military justice system and created an agency to look into injustices that had been committed in the past. One case that was reopened led to the civilian prosecution of the ex-captain of a destroyer for negligence leading to the suicide of an enlisted crewman 21 years ago. Now that case has fizzled because of the statute of limitations and the prosecution's failure to adduce new evidence. Details here. This is not going down well with affected families. "Critics said the justice system seemed to have come under pressure from the military, and that the process had been impeded at every turn."

The Nation editorial: "Justice and Conscience"

The Nation (Pakistan) has published a powerful editorial concerning the pending supreme court challenges to the country's military courts. Excerpt:

As the letters of an army officer who was a member of one of the military courts, reach Chief Justice [Anwar Zaheer] Jamali, many fears about the military courts have been confirmed. 

The letters suggest that the conduct of military court trials have severe discrepancies. 

Before this revelation, the CJ had already reserved judgments on 14 petitions filed by the family members of the convicts awarded the death sentence by military courts. 

The army officials had maintained that the information that they had received regarding the terrorists being tried by the Special Military Courts would be ‘hardcore’ and all the evidence provided in the shape of interrogation and interment orders would be accurate and true, but the truth seems far from it. 

There were many discrepancies in the interrogation reports and other evidence provided which impeded in making sound judgments on punishments. 

Access to the actual interrogators and the interning officers was denied and no witnesses were produced in front of these courts. 

The most worrisome aspect is that no formal law training was provided to the personnel holding these trials and they had no knowledge of the punishments of different crimes and offences.

A court for private military companies?

This Le Huffington Post essay calls attention to the fact that there is at present no military court with jurisdiction over private military companies. These firms are accountable only to their clients. One firm recently recruited many Sierra Leonean child soldiers for employment in Iraq, directly contrary to the prevailing code of ethics.

ICJ statement and report on Pakistan's military courts

The International Commission of Jurists has issued the following statement on Pakistan's 21st Amendment military courts:

The Pakistan government must stop putting civilians charged with terrorism-related offences on trial before military tribunals, said the International Commission of Jurists (ICJ) in its Briefing Paper Military Injustice in Pakistan released today. 

Since January 2015, when Pakistan empowered military courts to try civilians for terrorism-related offences, 11 military courts have been constituted to hear cases related to terrorism. 

These 11 military courts have thus far concluded the trials of 105 people, finding the defendants guilty in 81 cases. Seventy-seven people have been sentenced to death and four have been given life sentences. At least 12 people have been hanged after trials that are grossly unfair. 

“There is no doubt that the Pakistan government has an obligation to protect people in Pakistan from terrorist acts, but military tribunals are not a proper or effective response to this real threat,” said Sam Zarifi, ICJ’s Asia Director. 

“These tribunals are opaque and operate in violation of national and international fair trial standards, and so are not effective in providing justice, truth or even proper remedies for the victims of terrorism,” he added. 

Families of 17 people convicted by military courts have alleged the convicts were denied a right to a fair trial in petitions to the Supreme Court. The Court is expected to issue rulings on the petitions imminently. 

Specific violations alleged by the petitioners include: denial of the right to counsel of choice; failure to disclose the charges against the accused; and failure to give convicts copies of a judgment with evidence and reasons for the verdict. 

In some cases, the petitioners have alleged the convicts were subjected to enforced disappearance and torture and other ill-treatment, and in at least two cases, the petitioners have also alleged that the convicts were children under the age of 18 at the time they were arrested by law enforcement agencies. 

Recent media reports of letters said to be from a judge (unnamed) of a military court have raised concerns about the accuracy of the testimonies against the accused; discrepancies between the charges and the evidence provided; and lack of legal training of military courts’ officers. 

The ICJ is not in a position to verify the authenticity of the letters, but, noting the consistency of these concerns with those expressed by the ICJ and families of people convicted by military courts, the organization calls on the Pakistan government to investigate the allegations. 

The ICJ reminds that in August last year, the Supreme Court upheld the legality of the trial of civilians before military courts in contravention of long-established principles of international law and the Court’s own jurisprudence. 

“The Supreme Court now has the opportunity to ensure that at the very least, the procedures of military courts meet basic standards of fairness,” Zarifi said. 

The expansion of the jurisdiction of military tribunals through the amendments to the Constitution and the Pakistan Army Act were a key part of the Pakistani government’s 20-point “National Action Plan”, adopted following the horrific attack on the Army Public School in Peshawar in December 2014. 

NAP envisioned military courts to be a short-term “solution” to try “terrorists”, to be operational only for a two-year period during which the Government would bring about necessary “reforms in criminal courts system to strengthen the anti-terrorism institutions.” 

“Now, with just six months left before the 21st Amendment expires, Pakistan has also failed to address failures of the criminal justice system, which were used as a justification for military trials for militants,” Zarifi added. 

The ICJ has called on the Pakistan government to roll back the system of “military injustice”, and ensure that the 21st Amendment is not extended at the expiration of the sunset clause. 

The ICJ has also urged that Pakistan reinstate a moratorium on executions with a view to abolishing the death penalty in law and practice.

U.S. Air Force-hosted websites down

The websites of the U.S. Court of Appeals for the Armed Forces and U.S. Air Force Court of Criminal Appeals continue to be down. They have been inaccessible to the public since the end of last week.

The DoD Reading Room for the boards for correction of military and naval records is also inaccessible.

All of these websites are hosted by the U.S. Air Force.

By the numbers

In less than six months, Global Military Justice Reform has offered 500 posts. Since its inception in January 2014, the blog has had 2752 posts, 412 comments, and readers in 165 jurisdictions (with 271,781 "hits"). As always, thanks to the contributors, commenters, and readers for making this possible.

OPLAW: the next ideological battleground?

This article from the right-wing Daily Caller takes aim at the sheer number of civilian and military lawyers providing operational law advice to commanders. Excerpt:

Critics have charged that, as the number of lawyers in the military has swelled, lawyers are trumping commanders about military strategy and operations. Others contend that the growth in military lawyers reflects the risk-adverse nature of the Obama administration on military matters.

*   *   *

Non-governmental organizations also have attempted to inject an added legal layer to military decision-making by invoking what they call “international humanitarian law.” These rules seek to limit armed action by Western military forces. The IHL is often cited by activist groups when they accuse the West of committing “war crimes.”[*]

Watch this space. This ominous article heralds the opening of an assault on the rule of law in military operations. It ought to be of concern to both commanders and judge advocates, not to mention public interest organizations.

Comments welcome on this post. (Real names, please.)

* Love the quotation marks. [Editor's footnote added.]

Prior service in Afghanistan puts Defence Minister in possible conflict with ongoing investigation into allegations of mistreatment of detainees

The Military Police Complaints Commission (MPCC) is currently conducting a Public Interest Investigation into allegations concerning the treatment of Afghan detainees by members of the Military Police (MP) in 2010-11 and related investigations in 2011-12.  The complaint alleges that the MP conducted exercises to "terrorize" the detainees and in one instance entered the cells and pressed detainees against the wall and floor and applied arm locks. 

According to the complaint, MPs were said to have entered the cells in the middle of the night, carrying weapons and other police equipment, and to have pressed detainees against the wall and on the floor and applied arms locks. The complainant alleges that investigations were conducted by the National Investigation Service (NIS) in 2011 and later by a Lieutenant-Colonel in the MP chain of command. However, no charges were laid. The letter provides the ranks and surnames of five "reference persons".

Pursuant to section 250.21(2)(c)(i) of the National Defence Act, the MPCC notified the Provost Marshal on February 27, 2015 requesting additional information.  Pursuant to subsection 250.38 (3) of the National Defence Act,  on November 4, 2015, the Chair of the MPCC notified the Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal and the Commanding Officer of the NIS of its decision to conduct a Public Interest Investigation into this complaint.

 On June 22, 2016 the Ottawa Citizen reports that Defence Minister Harjit Sajjan’s three tours of duty in Afghanistan as a CF Intelligence Officer might put him in a conflict of interest.  However, Minister Sajjan denies any involvement:

“I wasn’t involved in this . . . I was using my experience as a police officer, engaging with the community, and one thing I can say is that the Canadian Armed Forces personnel, (with) the training that they have, abide by the Geneva Conventions and everybody who I served with, served with absolute credibility and honour.”

Dysfunction, inefficiency and commander-centric disposition of serious charges

The Washington Times has run this op-ed by two retired Army officers, Major General John D. Altenburg Jr. and Colonel Lisa M. Schenck, in opposition to the bipartisan proposal to transfer disposition power for major offenses from commanders to independent legally-trained prosecutors outside the chain of command. They argue that "[r]equiring another senior military lawyer to make a 'commander decision' will invite dysfunction and inefficiency." They contend:

Proponents of change want yet another senior military lawyer in yet another organization to decide to refer cases; this would require transfer of cases and further review before decision. Commanders with a direct leader interest in cases would not have a direct role in ensuring cases are efficiently and fairly prosecuted. Instead, a senior military attorney and staff in yet another office would process the case, creating delay and dysfunction. An officer not connected to the offender’s unit mission and combat readiness, as measured by its morale, training, leadership and discipline, would decide which cases to prosecute.

Here is the same paragraph annotated with some questions and comments:

Proponents of change want yet another senior military lawyer[1] in yet another organization[2] to decide to refer cases; this would require transfer of cases[3] and further review[4] before decision. Commanders with a direct leader interest in cases[5] would not have a direct[6] role in ensuring cases are efficiently and fairly prosecuted.[7] Instead, a senior military attorney and staff[8] in yet another office[9] would process[10] the case, creating delay[11] and dysfunction.[12] An officer not connected to the offender’s unit mission and combat readiness, as measured by its morale, training, leadership and discipline, would decide which cases to prosecute.[13]

1. The services already have senior judge advocates supervising line prosecutors. "Yet another" is unwarranted, since the independent prosecutors outside the chain of command would not be in addition to the staff judge advocate, they would supplant that officer with respect to advising on the disposition of charges in major cases.

2. Having a separate prosecution function is a minor change that need not entail added cost. The Army, for example, already has a fully staffed and highly regarded Trial Counsel Assistance Program. It could be made independent with the stroke of a pen -- and no added cost to the taxpayers.

3. Yes indeed, major charges would have to be sent to the prosecutors outside the chain of command for a disposition decision. That's the point.

4. The word "further" is misleading. The review would be conducted by prosecutors outside the chain of command. The implication that this would be redundant is incorrect.

5. That's the problem.

6. Nothing would prevent commanders or their staff judge advocates from offering their recommendations to the prosecutor outside the chain of command (provided a copy is furnished to defense counsel and and victims counsel).

7. The fair and efficient prosecution of cases is the lawyer-prosecutor's work. Commanders have no special insight with respect to either fairness or efficiency in the prosecution of major criminal charges.

8. See note 2 supra. TCAP already has the necessary staff.

9. See notes 1-2 supra.

10. It is unclear what is intended by the verb "process" in this sentence. All that is involved is for the chief trial counsel and her subordinates to review the investigative file and make a disposition decision, just as the commander currently "processes" cases.

11. There would be no appreciable delay. Charges in major cases, together with investigative reports, would be sent to the chief trial counsel. There would be no change in either the current rules on speedy trial or the statute of limitations. Any command input, see note 6 supra, could be subject to a short deadline to avoid delay.

12. "Dysfunction" is a familiar scare word, much like "second- and third-order effects." Just what "dysfunction" is intended?

13. This is precisely the point. Think "conflict of interest."

Comments welcome. (Real names only, please.)

Prosecution witness threatened in IDF case

The commanding officer of IDF Sgt. Elor Azaria, who testified for the government in Azaria's court-martial, has received threats. Details here. Excerpt:

Now Azaria’s commanding officer has become the victim of cyber-threats and phone harassment after testifying against him last Thursday, leading to the arrest of an Israeli man accused of incitement to violence and witness harassment.

 *   *   *

A resident of Samaria was arrested on Sunday by the Judea and Samaria district police after posting a status on his public Facebook account with a photo of Maj. [Tom] Naaman along with his family’s phone number.

“This is Tom Naaman. Elor Azaria’s treacherous CO who lied in court this morning. If he was my CO, he wouldn’t be able to walk on his legs ever again for such treason. He is a stinking traitor and must be shunned,” the suspect wrote. 

Naaman’s family has since received dozens of threatening phone calls. 

According to the police, the suspect was arrested for charges of incitement to violence, witness harassment, and insulting a public official.

A brave dissenting voice in Pakistan

The Nation, in Pakistan, has published an extraordinary article disclosing the dissenting views of an officer who participated in six military trials under the country's 21st Amendment. Excerpt:

Discrepancies found in the conduct of military courts’ trial have been brought into the notice of Chief Justice Anwar Zaheer Jamali who hears cases against death sentences awarded by such courts. 

Advocate Lt-Col (r) Inam-ur-Rahim, counsel for missing persons, forwarded the letters of an army officer who was a member of one of the military courts, to Chief Justice Anwar Zaheer Jamali. 

The army officer wrote separate letters to Maj-Gen Nadir Khan, GOC 17 Division, in October 2015 and to Chief of Army Staff General Raheel Sharif in February 2016, pointing out flaws in the trial of military courts. (The Nation has the copies of the letters). 

The sources confirmed the CJP office had received the letters.

*   *   * 

Col Inam told The Nation that he had received the letters of an army officer with the rank of major, through a man Nazar Hussain. 

He said the purpose of forwarding the letters to the chief justice was that as the Supreme Court was hearing the petitions against the military courts’ sentences, the revelation by a member of the military court might help in making the right decision. 

The army officer, in his letter addressed to Maj-Gen Nadir Khan, said at least four of the six cases which he heard should be tried again in the light of the observations made in the letters. 

He stated: 

“First of all, on the very first day, we got a wrong briefing to start with from Headquarters 11 Corps. We were told that all the terrorists tried by the Special Military Courts would be hard-core and all the evidence to be given to us in the shape of interrogation and interment orders would be accurate and true. However, once we started our trials, we came to know gradually that most of the accused handed over to us for trial were just foot soldiers. Moreover, as the time passed, I also came to know that there were many discrepancies in the interrogation reports, internment orders and other evidence provided to us which depicted these were not hundred percent accurate.” 

“Another major issue in the beginning was that despite requests no formal law training was imparted, which could have equipped us with the skill to hold these trials. We were even not told what the punishment of different crimes and offences was. Furthermore, right from the outset, access to the actual interrogators and the actual interning officers who interned the accused were denied to us despite repeated demands. The witnesses who had the firsthand knowledge about the crimes of these suspects were not produced. In lieu of the actual witnesses, the current interrogators and the interning officers who had virtually no knowledge or very little knowledge about the offences of the accused were provided to us.” 

“All the trials were run in a time-compressed environment (1 to 3 days) on the plea of imparting swift justice. The idea seems sound, but it is not justified keeping in view the outcome. In such a time-compressed scenario, I think we committed many mistakes which could have been avoided”. 

The letter further says: 

“The things became clearer to me when I started vetting the cases of 17 Div. During the process, I observed many flaws and discrepancies in the evidence which were earlier hidden to me. The idea of advance preparation of the case is splendid, but again the problem is in implementation. All the brigades started an unending race to show progress to the Division in the shape of number of cases being vetted, a few using unfair means as well.” 

At the end of the letter, the officer told the GOC, “I am just unable to carry this burden anymore. Now after writing all this to you, I am relieved of all my worries and my conscience will be clear while standing in front of Allah Almighty in His most supreme court of justice”.

The letters stated that GOC Maj-Gen Nadir, instead of appreciating the effort of an honest and upright officer and correcting the blunders, started targeting him. 

He, therefore, wrote a letter to Chief of Army Staff General Raheel Sharif on February 2016 and forwarded a copy to GOC Maj-Gen Nadir. 

The officer writes, “Unfortunately, to date no corrective measure was taken by the entire chain of command to provide justice to the people.”

More details on yesterday's hearing in the Supreme Court of Pakistan

Asma Jahangir

We learn important details from The Express Tribune's coverage of yesterday's proceedings in the Supreme Court of Pakistan:

Asma Jahangir, the counsel for the convicts, pleaded [before] the apex court that there has to be a retrial of all convicted persons after allowing them to engage counsels of their choice. The bench also expressed its dissatisfaction over the procedure adopted by the military courts for giving the right of counsel to an accused person.

The chief justice has already asked the additional attorney general that so far they (judges) are not satisfied by the submission of the record regarding the issue of engaging a counsel of choice by convicts. He said in some cases the question of providing a defence counsel was asked, but in many other cases it was not. 

During Monday’s hearing, Asma Jahangir, appearing on behalf of the convict Sher Alam, complained that lawyers were not given access to the record of trial. She argued that they don’t know under what law her client was taken into custody and whether due course of law was provided. She said although under the 21st Amendment, army, naval and air force laws were given protection from civil scrutiny, this immunity does not arise in the Action in Aid of Civil Power Regulation 2011 under which the convict was initially arrested. 

She again contended that people were illegally arrested under the regulation, and later the constitutional amendment was introduced to hide the illegal[it]y of security forces. 

The noted human rights activist questioned: how did the federal government select cases of a few persons, who were in internment centres, and why did it not refer other cases to military courts? She said it was a violation of Article 25, Article 10A of the Constitution and rules 86, 87 of the PAA [Pakistan Army Act] 1954. 

She argued that the 21st Amendment and the Army (Amendment) Act 2015 PAA did not undermine, suspend or curtail the effect of fundamental rights, guaranteed by the 1973 Constitution. She said Article 10A came into being after a long struggle and many negotiations. . . .

Jahangir said lawyers were not given access to the record of the trial of their clients. “I plead to show us the record.”

Even under a restrictive view of the scope of judicial review of courts-martial, it is impossible to see how defense counsel can provide meaningful assistance without access to the record of trial. It remains to be seen whether Ms. Jahangir will gain any traction with her arguments, but from a distance they seem substantial.

Pakistan Supreme Court concludes hearing on military court appeals

The Supreme Court of Pakistan today concluded its hearing on appeals from five capital cases from the military courts. The cases are now awaiting decision by the bench. Details here. Among the issues: were the accused afforded the right to hire lawyers of their own selection.

Transparency: Spanish military courts

The Central Military Court in Spain is planning the roll-out this week of a website. Details here. Bravo -- this will improve the transparency of Spanish military Justice.

Meanwhile, the website of the U.S. Court of Appeals for the Armed Forces has been offline for several days.

Corruption dismissals: sufficient?

A Nigerian public interest organization is calling for the criminal prosecution of 38 senior Nigerian officers who were sacked for corruption. Details here.

The Human Rights and Anti-Corruption Advocacy has called for the prosecution of the 38 officers that were sacked by the military. 

The human rights group also said the military officers’ properties should be seized and their accounts blocked. 

They made this known during a peaceful protest staged at the Abuja office of the Economic and Financial Crimes Commission (EFCC). 

They said “We are calling for the prosecution of those sacked military officers on charges of corruption, as well as confiscating of their properties and freezing of their accounts in accordance with the law."