Black Tot Day

In case you missed Col. Sullivan's reminder, today is the 46th anniversary of the Royal Navy's abolition of the rum ration.

Then comes Brexit. Coincidence?

More cases may be headed for Pakistani military courts

Pakistani provincial authorities have sent another 426 cases to the Interior Ministry for decision on whether they should be referred to the military courts established under the 21st Amendment. Details here. The Supreme Court of Pakistan already has on its docket a number of challenges to military court judgments.

The 21st Amendment expires in January. A cynic might wonder if this tranche of new cases is a ploy to persuade Parliament to extend it or make it permanent.

The South Sudanese army has been accused of rights abuses in the two-year civil war, but arrests are rare.

The Anadolu Agency (Turkey) reports:

At least 121 government soldiers have been arrested on suspicion of committing crimes including rape, gang rape, and looting of civilians during the recent clashes in South Sudan's capital Juba.

"The army general command detained 12 soldiers due to rights abuses, including two who have committed crimes against their colleagues," army spokesman Brig, Gen. Lul Ruai Koang told Anadolu Agency.

Happy 141st

Today marks the 141st anniversary of the appointment of William Todd, the first U.S. Army Judge Advocate General. Congratulations to all concerned. Some history is recounted here.

Morocco follows through on reforms

Morocco enacted military justice reform legislation in 2015 forbidding the trial of civilians in military courts. There was a question, however, what the country would do with past or pending cases. Now the Court of Cassation has ordered new civilian trial for 24 Polisario Front civilians who were sentenced in 2013 to 20 years in jail for offenses committed at Gdim Izeik. Details here, en français.

Can you argue an appeal without access to the record of trial?

How can a lawyer argue an appeal without access to the record of trial? That question is posed in three military court capital cases pending before the Peshawar High Court, in Pakistan? From this report in The International News:

“The non-availability of the record to the lawyers of the convicts is against Article 10-A of Constitution about fair trial,” argued Ghulam Mohiuddin Malik, counsel for Muhammad Tayyab who was awarded death sentence by a military court on terrorism charges. 

The deputy attorney general, who appeared in the cases, opposed the request by the lawyers for providing the case record to the lawyers. He said these were secret and sensitive documents that could be provided to the judges for inspection in appeals against convictions. 

The bench asked the lawyers to go through the detailed judgment of Supreme Court about the military courts and inform the court if there is any direction regarding provision of the case records to counsels for the convicts. 

The court rejected the request by the deputy attorney general to declare the proceedings of the cases as in-camera. “How can we declare the proceedings of an open court as in-camera?” Justice Roohul Amin Khan observed. The court extended the stay order on suspension of death sentence to the three militants till the next hearing of these cases and until court’s decision whether the record of the cases would be provided to the lawyers of the convicts.

Victims' rights in Mexican military justice

With the introduction of new military justice legislation, Mexico has aligned victims' rights in courts-martial with those enjoyed in civilian courts. Here is a summary, in Spanish.

Military Police Investigation conducts a Public Interest Investigation into alleged mistreatment of Afghan detainees

ANONYMOUS COMPLAINT OF MISCONDUCT AGAINST MPs. In February 2015, the Military Police Complaints Commission (MPCC) received an anonymous complaint.  The complainant alleges that between December 2010 and January 2011 the Commanding Officer of the Joint Task Force Afghanistan Military Police Company stationed at Kandahar Airfield ran exercises in unoccupied detention cells neighboring cells containing detainees, in order to “terrorize” the detainees.  The complainant further alleges that at one point, at least one exercise was conducted in cells occupied by detainees.  According to the complaint, MP members 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 arm locks.  

The complaint letter goes on to allege the uniformed National Investigation Service (NIS) conducted an investigation in order to bring serious charges against the MP Commanding Officer but did not lay any charges.  

Instead, charges were allegedly provided to the Canadian Task Force Commander who, according to the complainant, ignored them.  Finally, the complainant alleges that in October 2012, a lieutenant-colonel in the MP chain of command was tasked to conduct an investigation into the events; however, despite these various investigations, no court martial or charges resulted.  

The letter provides the ranks and surnames of five “reference persons”.

PUBLIC INTEREST INVESTIGATION

Pursuant to subparagraph 250.21(2)(c)(i) of the National Defence Act,  the MPCC notified the Provost Marshal and requested additional information about the matters raised in the complaint. Given the seriousness of the allegations and the gravity of the underlying events, on November 4, 2015, the Chair MPCC advised the Minister of National Defence, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshall of her decision, pursuant to sub-section 250.38.(3) of the National Defence Act, to conduct a Public Interest Investigation (PII) into these allegations. She notes:

The allegation that the Military Police may have been involved in covering-up misconduct on the part of MP or other CAF members is a very grave one that goes to the heart of the MPCC’s mandate to ensure accountability for the MP and to foster public confidence in the availability of a suitable independent mechanism to investigate alleged misconduct.”

Considering the totality of the context and public interest factors, I conclude that the most appropriate way to ensure that this matter is investigated to the satisfaction of the public is to cause the MPCC to conduct the investigation.  A Public Interest Investigation will allow the Commission to conduct a thorough investigation in order to shed light on the events and ensure no doubts remain at the end of the complaints process.  The subsequent publication of the MPCC’s findings and recommendations will help ensure the highest standards of accountability and transparency for the Military Police, thereby contributing to the preservation or perhaps restoration of public confidence.  

WAY AHEAD

Relevant materials are current being examined by the MPCC which has yet to determine the scope of the PII and identify the subjects of the complaints. 

Updates on the progress of the investigation will be posted as they become available.

Life sentence for PLA general

Shanghai Daily reports:

A Chinese military court yesterday sentenced Guo Boxiong, former vice chairman of the Central Military Commission, to life in prison for accepting bribes. 

Guo was also deprived of his political rights for life and stripped of his rank of general. His personal assets were seized, and all his illicit gains were confiscated and turned over to the state treasury. 

Guo pleaded guilty and decided not to appeal, according to a statement issued by the military court after the trial. 

The military court heard that Guo had taken advantage of his position to assist the promotion and reassignment of others, and had accepted huge amounts in bribes both personally and in collusion with others. 

Guo’s bribes were “extremely huge” and his crimes were “extremely serious.” However, he confessed, owned up to his misdeeds, repented in good faith, and all the proceeds of his crimes have been recovered, the statement read. 

The court carried out a closed-door trial as military secrets were involved. The trial has been conducted in a fair and independent manner, and its verdict could be tested by the law and time, the statement said. After accepting the case, the military court formed a collegial panel for the trial, sent a copy of the indictment to Guo and informed him of his rights and obligations in litigation. 

The defense counsel met with Guo and reviewed all the case files. 

Before the trial, the court convened a meeting with the prosecutors, defendant and defence counsel to hear opinions and review evidence. 

During the trial, the court conducted investigation into the alleged crimes, and the prosecution and defense adduced and cross-examined the evidence. 

The military court has fully safeguarded various litigation rights of Guo and his defense counsel in accordance with law, it added. As for others implicated in Guo’s case, the military court will deal with them in accordance with the law and announce verdicts, the statement said.

Sounds like a perfect trial, right? Query: why was the entire trial conducted behind closed doors? What's secret about bribery or corrupting the promotion process? 

CF Court Martial Comprehensive Review requires full transparency to gain credibility

The recently announced Court Martial Comprehensive Review (see blog dated July 22, 2016 below ) can perhaps be seen as a seismic shift of attitude by the Office of the JAG in matters of military law reforms.  This would be a most welcome change.

After all, for the past two decades, the Office of the JAG has resisted any and all suggestions for democratization and modernization of the military justice system. Such changes have been suggested via obiter dictum by the Court Martial Appeal Court of Canada or by various writings produced by the extremely small number of observers, writers and practitioners in military law in Canada or the various participants of the International Military Law Conference hosted by the University of Ottawa on November 13, 2015. 

Not surprisingly, I remain very skittish about the efficacy, authenticity and rationality of such “review” or “pre-legislative public consultations” for the primary reason that such public consultations have now become a sort of credo in Canada since the election of Liberal Government in October 2016 (see below). In many ways, Canada is awash with ‘proactive comprehensive review', to name but a few: 1. Defence Policy Review, 2 Canada Post Review, 3, Consultation on the Modernizing the Public Service, 4. Consultation on the Environmental and Regulatory Processes, 5. Consultation on the Freedom of Information Act, 6. Consultation on the Transportation Act Review, 7. Fundamental Science Review, 8. Consultation on Mining Abroad, 9. Consultation on Legalization and restriction of access to marijuana etc.

Only time will tell if such a consultation on "Court Martial" is verily interested in public input or whether it would serve more or less as a ‘cosmetic consultation’ to gain some form of legitimacy for advancing reforms. This public consultation would gain in credibility if the the input received by contributors were to be made public. This is currently being done by the President of the Treasury Board, the Honorable Scott Brison, who is conducting a public consultation exercise on reforming Canada's freedom of information legislation.

When was the appeal?

From South Sudan we read of the firing squad execution of two soldiers for murder and other offenses. The men were arrested on July 17 and executed on July 22. From the news report:

No one, according to the town mayor, is above the stipulated laws. 

A military judge cautioned soldiers against violating army regulations. 

“This is a warning to those soldiers who used to violet the military regulation, it is also what tell the people of South Sudan that any soldier found committing crime against civilian should be deal with,”a judge, who preferred anonymity said on Friday.

Conspicuously absent is any reference to appellate review. 

Is double jeopardy possible in Philippine case?

A Philippine Army major has been arrest on drug and weapons charges, according to this article. The account reports that the Army can either court-martial him or expel him by board action:

“If there is evidence that will show [Major Suharto Tambidan] Macabuat is indeed linked with illegal drug operation, he will be referred to either the military court martial or the Army’s Efficiency and Separation Board (ESB),” said Army spokesman Benjamin L. Hao. 

Hao adds criminal liability on Macabuat is still possible even if the beleaguered Army man undergoes military trial.

Emphasis added.

Publication standoff continues in Paraguay

Pres. Horacio Cartes

The test of wills between President Horacio Cartes and the Paraguayan Senate continues over the [non] publication of three military justice laws enacted in 1980. The government is standing firm, but the Senate hasn't given up. Possible next step: create a Legislative Gazette that would publish all laws enacted by the Congress. Family members of military personnel are also up in arms about the situation. There are 43 military prisoners at the moment. Details here in Spanish.

Pakistan's military courts and law

Wing Cdr (Ret) Dr. U C Jha

Wing Cdr (Ret) (Dr.) U C Jha, a leading author on military legal matters, has written Pakistan Army: Legislator, Judge, and Executioner (KW Publishers 2016). Details can be found here. From the publisher's description:

Almost every state in the world has an army to protect it from external aggression, except in the case of Pakistan, where the relationship between the ‘state’ and the ‘army’ is in the reverse order. The Pakistan Army has the ‘state’. The army has governed the ‘state’ directly during half of its existence and in the remaining half of its history indirectly. The Pakistan Army has also ensured that other independent organs of the state—executive and the judiciary—function under its shadow. The army has another unique feature ; it runs the biggest business conglomerate that owns everything from factories and bakeries to farmland and golf courses. In 2015, the Parliament by a two-third[s] majority handed over another responsibility to the army—trial of civilians in military courts—on the ground that the criminal justice system and the civilian judiciary are incapable of handling the cases pertaining to terrorists. As the trials in summary military courts fall short as compared to national or international fair-trial standards, the risk of serious miscarriage of justice cannot be ruled out. 

Several armed conflicts are taking place in Pakistan in which the armed forces and its allies on war on terrorism—especially the military of the United States of America (USA)—are involved in fighting several groups of militants and terrorists. The USA as well as the Pakistan military have used lethal drones against the citizens of Pakistan. The military’s involvement on war on terror has led to devastating results in terms of loss of life, destruction of property; besides they have also been responsible for enforced disappearances, a serious crime against humanity. This book analyses the Military Justice System of Pakistan and makes an assessment of its international obligations under the international human rights law and the laws of armed conflict.

CF Court Martial Comprehensive Review

This just in from the Canadian Forces:

Dear Colleagues, 

On behalf of the Canadian Forces' Deputy Judge Advocate General for Military Justice, Colonel Rob Holman, I am pleased to have the opportunity to alert you to two news items that may be of interest to you. 

First, I am happy to advise you that the Judge Advocate General's Annual Report on the Administration of Military Justice in the Canadian Forces for the 2015-2016 reporting year is now available online at the following link: 

https://urldefense.proofpoint.com/v2/url?u=http-3A__www.forces.gc.ca_en_about-2Dreports-2Dpubs-2Dmilitary-2Dlaw-2Dannual-2D2015-2D16_index.page&d=CwIFAw&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=Z3OE30TMXvUd_0bWpnzlytRvk40ibjhoAnWq_2k13Qo&m=ZxnaL0EimiOvpQ7s9dUjAUlGK-nvjBU4rvsRzO4z9Is&s=Dyj0nE2YZ3yYnaq38TczsicpRS5XVAGY9I_cMLDts24&e= .

This report provides an overview of what was a very busy year in the Canadian military justice world, and also includes a thematic chapter on the topic of "Superintendence and Regular Reviews of the Administration of Military Justice" - which leads me to the second item news item that may be of interest to you. 

As described in Chapter 2 of the above-mentioned Annual Report, the Judge Advocate General (JAG), Major-General Blaise Cathcart, has launched a proactive comprehensive review of the Canadian Armed Forces' (CAF) court martial system. This comprehensive review represents an integral means through which the JAG can fulfill his responsibilities under the National Defence Act (NDA), for superintendence, and for the conduct of regular reviews of the administration of military justice. The purpose of the review is to conduct a legal and legal policy analysis of the CAF's court martial system, and develop and analyze options to enhance its effectiveness, efficiency, and legitimacy. 

Over the course of the next year, the Office of the JAG team leading the review will engage in consultations with people from across Canada and internationally. These consultations will offer an opportunity for groups such as the Canadian public, foreign subject matter experts, other government departments, and members of the CAF, to engage with military justice issues and to provide input into the review of the court martial system. We anticipate that public and subject matter expert consultations will begin during the fall of 2016, and that more details about the types of input that the Court Martial Comprehensive Review Team (CMCRT) is most interested in receiving, and the methods for communicating such input, will be provided over the upcoming months.
A copy of the Terms of Reference for the Court Martial Comprehensive Review can be found at the following link:

https://urldefense.proofpoint.com/v2/url?u=http-3A__www.forces.gc.ca_en_about-2Dreports-2Dpubs-2Dmilitary-2Dlaw_court-2Dmartial-2Dcomprehensive-2Dreview.page&d=CwIFAw&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=Z3OE30TMXvUd_0bWpnzlytRvk40ibjhoAnWq_2k13Qo&m=ZxnaL0EimiOvpQ7s9dUjAUlGK-nvjBU4rvsRzO4z9Is&s=ofHwZemlKoiblZvtZuMhzkOZD23r53qSxlLGgkINsHo&e= . 

We hope that you will take interest in these news items, and that, in due course, you will share any of your well-informed views with the CMCRT as to how Canada's court martial system might evolve in ways that will allow the system to continue to meet the needs of the CAF and the Government of Canada. 

Sincerely,
Lieutenant-Commander / Capitaine de corvette Mike Madden, CD, B.A., M.A., LL.B., LL.M.
Senior Legal and Policy Advisor, Office of the Judge Advocate General / Court Martial Comprehensive Review Team
Department of National Defence / Government of Canada

Experience with the DoD Military Justice Review Group process suggests two steps Canada could usefully take as part of the effort described above. First, have a state-of-the-art website that is comprehensive, current, and well-tended. Second, disseminate to the public -- via the website -- contributions from third parties. The website can be a force multiplier for fostering the kind of robust, intelligent discussion CF clearly seeks.

While the Editor is offering suggestions, maybe the [U.S.] Code Committee on Military Justice could spiff up its annual report. The Canadians' classy reports are way ahead of the U.S.'s comparable documents! 

Who should have charging power?

Brig. Gen. Sharon Afek
Military Advocate General

A current issue in U.S. military justice concerns whether charging power should continue to be vested in nonlawyer commanders or should be shifted to lawyers outside the chain of command. Foreign examples of the latter abound, as witness this recent decision by Israel's Military Advocate General, Brig. Gen. Sharon Afek, to indict a brigadier general on rape and other charges.

Where should this case be tried?

Should human rights violations by military personnel be tried in courts-martial or civilian courts? Amnesty International suggests the latter, according to this article about Myanmar. Does the answer to the question turn on whether one has confidence in the particular military justice system, and if so, according to what criteria?

Supreme Court of Canada upholds minister's power to authorize appeal of CMAC decisions

In an unanimous judgment, HM The Queen v. Warrant Officer J.G.A. Gagnon and HM The Queen v. Corporal A.J.R. Thibeault, the Supreme Court of Canada has allowed the appeal by the Minister of National Defence declaring section 230.1 of the National Defence Act as being constitutional. In so doing, the Supreme Court remanded the case to the Court Martial Appeal Court [CMAC] for the hearings of the Gagnon and Thibeault appeals on their respective merits.

Turkey benches 14 top military judges

In the fallout from the abortive coup, Turkey has removed 14 senior military judges. Sparse details here. Excerpt:

"The High Disciplinary Committee revoked the authorities of seven members of Turkey’s High Military Administrative Court – including two colonels – who were detained after the attempted coup. 

"Separately, the committee also decided to revoke the authorities of seven Military Supreme Court judge colonels who were detained."

El Salvador's Amnesty Law declared unconstitutional

On July 13, 2016, the Constitutional Chamber of the Salvadoran Supreme Court declared the 1993 Amnesty Law unconstitutional.   It is estimated that approximately 75,000 people were killed, another 8,000 disappeared and a million refugees were created during the civil war that lasted from 1980-1992.  The amnesty law impeded the investigation, prosecution and punishment of human rights crimes committed during the civil war.

David Munguía Payes, the Minister of Defense, called the ruling “a political error” and warned that the judgement would “turn the country upside down.”  President Salvador Sanchez Ceren also criticized the Supreme Court’s decision.  Since he was part of the FMLN’s command structure during the war, he could theoretically face prosecution.  Both the Salvadoran army and rebel fighters from the Farabundo Marti National Liberation Front (FMLN), which is now the ruling party, have been accused of atrocities. The President stated: “These statements ignore, or do not measure the effects they may have on the fragile coexistence that exists within our society.”

Among the cases that could be reopened or investigated are the slaughter of six Jesuit priests and two of their employees (1989), the slaughter of more than 1,000 peasant farmers in El Mozote (1981), and the assassination of Archbishop Oscar Romero (1980).

The Inter-American Court of Human Rights, in its judgment in the El Mozote case (Judgment of October 25, 2012) called on El Salvador to never again let the Amnesty Law impede the investigation, prosecution and punishment of those responsible for grave human rights violations during the armed conflict.  The Salvadoran Supreme Court made extensive reference to the jurisprudence of the Inter-American Court in this landmark decision.   Florentin Melendez, one of the judges of the Constitutional Chamber, was a former member of the Inter-American Commission on Human Rights (2004-2009).  In 2009 he was named to the Salvadoran Supreme Court.

Unified Command

From 2007 to 2014 more than 164,000 Mexicans have disappeared or been killed in the conflict.  From 2006-2012, denunciations of homicide increased by 84%, denunciations of kidnappings increased 92% and extortion increased 130%.  In 2010, then President Felipe Calderon, in order to combat organized crime, proposed abolishing the approximately 2,400 municipal police forces in favor of creating 32 centralized state police forces (in the 31 Mexican states and the Federal District, i.e., Mexico City) under a unified command structure.  The unified command would be able to provide strategy and coherence that is currently lacking.  The proposal went nowhere and following the kidnapping of the 43 students in Ayotzinapa, on November 27, 2014, President Enrique Peña Nieto revived it and sent it to the Mexican Congress. 

One of the problems with the reorganization is that approximately 600 municipalities do not any have police forces at all.  The municipal police forces lack human and material resources to carry out their functions and 86% of these municipal police forces have fewer than 100 people.  The 20% of the largest municipalities account for 25% of the total number of police, whereas, in contrast, 10% of the police are dispersed among 1,110 municipalities that have approximately 12 police officials each. 

In 2013, a national poll revealed that Mexicans have the less confidence in the municipal police (39.2%) than in the federal police (55%), the Army (80.1%) and the Navy (83.1%).  Given the confidence in the military, the Secretary of the Commission of National Defense stated that he is seeking the input of active duty and retired military on the issue of a unified command structure.  Others criticize that the police are becoming too militarized.

Canadian Federal Court decision on grievances and time limits

The Federal Court of Canada (Heneghan, J.) has handed down an interesting decision in a case seeking judicial review of a decision to reject a grievance on grounds of untimeliness. The case is Simms v. Attorney General, 2016 FC 770. The court rules for Captain Simms, and finds that "the merits of the underlying grievance are a relevant factor when determining whether to accept [a] late grievance." This is consistent with U.S. law regarding the power of the boards for correction of military and naval records to allow late applications "in the interest of justice."

Coups and blues

The government has suspended 262 military judges and prosecutors in the wake of the recent failed coup d'état in Turkey. Details here.

Another addition to the military justice bookshelf

Cambridge University Press is accepting orders for "Military Justice in the Modern Age." Alison Duxbury and Matthew Groves are the editors; numerous contributing authors. $125. Details can be found here.

New book sheds light on military courts in Latin America

A recent book by Julio Ríos-Figueroa (CIDE, Mexico) will be of great interest to many readers. Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America was published this summer in Cambridge University Press’s well-respected Comparative Constitutional Law and Policy series. The book focuses on the key question of how democracies attempt to balance the need for a strong military that is also bound by the rule of law, and the under-examined role that constitutional courts can play in this process. The main argument is that constitutional courts and judges play an informational role in the bargaining that occurs between the civilian government and military, reducing uncertainty and leading to a more cooperative relationship. These courts are successful, in other words, when they serve as mediators rather than just arbiters of disputes.

To illustrate his theory, Ríos-Figueroa examines constitutional court cases that challenge a previous ruling by a military authority and those that reflect broadly on the scope of military jurisdiction across three countries in Latin America: Colombia, Peru, and Mexico. The three cases share a history of internal security threats, democratic elections, and constitutional reform processes in the early 1990s, yet the nature of constitutional courts (particularly the level of accessibility) varies significantly over time and across cases, providing solid leverage on the main variable of interest. Colombia is described as being the case where courts have been the most informational and served the important mediator role that has helped resolve conflicts between the government and the military. A later chapter reflects briefly on Israel, Turkey, and Pakistan to demonstrate the applicability of the model outside of the region of Latin America.

Overall, readers will find the theory accessible and argument convincing, and will greatly value the detailed case studies. Anyone interested in the role that high courts can play in checking military power and reforming military justice should take a look at this new work.    

Azaria case sparks anti-transparency bill in Knesset

The Knesset is considering a measure that would ban the publication of names of suspects and accused in civilian and military cases unless there is a conviction. According to this report in Haaretz:

Publication of the names of soldiers and police officers under investigation for duty-related actions would be prohibited under a bill that was approved for legislation yesterday by the Knesset Foreign Affairs and Defense Committee. 

Proposed by MK Eyal Ben-Reuven (Zionist Union,) the bill is an amendment to the laws governing the military justice system, courts of law and the police. It can now proceed to its second and third readings in the plenum. 

Under the bill, the names and other identifying details of soldiers and police personnel under investigation will not be released as long as legal proceedings are underway and the person has not been convicted. The ban on publication would remain in force if charges are not pressed, charges are dropped or the person is found not guilty.

This is further fallout of the court-martial of IDF Sgt. Elor Azaria. 

Final exam (10 minutes)

Is lying to a reporter conduct unbecoming?* Explain your answer and cite your sources.

* See Washington Post story by Ann Marimow here.

Back to square 2

Yesterday, the U.S. Court of Appeals for the Armed Forces ruled on the capital case of Senior Airman Andrew P. Witt of the Air Force. The decision can be found here. In a unanimous opinion by Judge Scott W. Stucky, the court vacated the decision of the U.S. Air Force Court of Criminal Appeals and returned the case to the Judge Advocate General for remand to an appropriate convening authority for a sentence rehearing in accordance with the Air Force court's earlier ruling.

Here are some questions and comments:

• How can it be that the government actually disputed whether the AFCCA's initial decision was en banc? This does not inspire confidence in the administration of justice. The Court of Appeals is properly dismissive of the claim. P. 2 n.1. 

• Ditto for the effort to hide the ball as to who voted how. The Court of Appeals was being kind when (at 7) it described this as "exceedingly problematic," even though the opinion notes at the same time that this is a capital case. Does that make a difference? See also pp. 8-9. Could there conceivably have been a different result if it had been a sexual assault, for example, or a drug case? Does the actual vote make a difference anyway, if one or more participants indeed were disqualified? Not under Williams v. Pennsylvania, 136 S. Ct. 1899, 1909-10 (2016).

• The Court observes (at 5) that "[a] judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances." Doesn't the fact that a case has already been argued constitute exceptional circumstances? Never mind that the record in this old case is presumably extremely voluminous and bringing in new judges would certainly materially delay disposition. Moreover, on a court with no fixed number of judges and frequent rotations on and off, might not this problem recur time and again?

• The Court cites no authority for the linchpin proposition (at 7) that "[t]he refusal of a judge who is present for duty and not disqualified to participate amounts to disqualification." Is it in fact a recusal when a judge who joins an appellate court after a major case has been argued does not participate in en banc consideration? Recusal occurs when a judge is disqualified (e.g., through personal interest or prior involvement). That is a far cry from a judge who does not participate because she was elevated to the bench after oral argument but before the opinion comes down. Query: have there been no cases at CAAF itself where newly-appointed judges did not participate in cases argued before they took the oath (and, for example, where a senior judge or Article III judge rounded out the bench)? In the Editor's view, the failure of several AFCCA judges to particulate was not a recusal at all, and accordingly the remainder of this part of the court's analysis is wide of the mark and the case should not have been vacated.

The Colonel Ouellette Affair. Justice delayed, justice denied?

The Canadian Broadcasting Corporation (CBC) has published a critical exposé on the CF Grievance System and in particular the failure of the CDS to act expeditiously in the determination of a grievance first submitted in 2010. 

In the online article "Military Grievance Board undercut in case of officer's alleged affair" the CBC chronicles the case of now retired Colonel Bernard Ouellette who submitted a grievance under section 29 of the National Defence Act on November 4, 2010, The grievance was brought upon following his removal from command in June of that year from the dual appointments of Commander [Canadian] Task Force Port au Prince, Haiti and Chief of Staff to the United Nations Stabilization Mission, in Haiti.  

          On December 29, 2011, the independent Military Grievances External Review Committee (MGER) released its Findings and Recommendations to the Chief of Defence Staff (CDS) as the Final Authority. 

           The MGER concluded that Colonel Ouellette had been wrongfully relieved from command and recommended that the CDS not only uphold the grievance but offer apologies to Colonel Ouellette for the manner in which he was treated and removed from command.

In closing, I have to say that I was shocked by the manner in which the grievor was treated. Whether I look at this case from a procedural aspect or on its merit, this grievor did not deserve this treatment. Moreover, I am troubled by the absence of any direct senior leadership intervention as well as the decision of the Comd CEFCOM to act, having no regards to procedural fairness, on allegations submitted by CF officers who had bypassed the chain of command. As I do not believe this is representative of command and of how the CF treat their members, I hope the CDS will take this opportunity to personally fix this unfortunate situation.”

            In February 2014, the CDS issued a decision but as the Initial Authority in the CF Grievance Process dismissing the grievance. Oddly, he then invited Colonel Ouellette to ask for reconsideration to the Final Authority in the same CF grievance process, who in this case, is also the CDS.

            This decision by the CDS was challenged before the Federal Court of Canada in a Judicial Review Application [We acted as counsel for Colonel Ouellette].  In October 2015, the Federal Court of Canada (See: Ouellette v. Attorney General of Canada, 2015 FC 1185 ) directed the CDS to use the Findings and Recommendations of the MGER to make a final determination of the said grievance. The Court also noted

[65] The Court wishes to stress [that] the particular fact scenario of the present case as the CDS was involved in the decision to remove Colonel Ouellette from command, would have been the Initial Authority, and is the Final Authority. The CDS was thus part of the decision to remove Colonel Ouellette from command, and is the decision maker, at both levels, in reviewing this very decision. An independent review by the Committee thus understandably appears even more necessary.

[71] In this case, given that the CDS was involved at the decision-making level and possibly at both levels of the review process, the Court is satisfied an Initial Authority decision was not mandatory and that it was unreasonable to conclude otherwise.

[76] For the aforementioned reasons, this application for judicial review will be allowed and the matter referred back to CDS for a Final Authority decision, using the Findings and Recommendations issued by the Committee in December 2011.

The CDS has yet to render a decision concerning this grievance which is now close to being six ( 6) years old.  This exaggerated amount of time taken by the CDS to adjudicate the grievance is, to say the least, most unusual, particularly when one considers that the entire Second World War (WWII) was only six years in length!  

Appeals allowed from Pakistani naval court-martial

Three naval officers sentenced to death by court-martial have been allowed to sue in the Lahore High Court, according to this account. They seem to be making modest enough requests:

"The petitioners asked the court to direct the naval authorities to provide them with documents including charge-sheet, copies of the inquiry board report, investigation report and trial proceedings enabling them to file appeals before the Naval Court of Appeals."

Innovation in Spain

For the first time, two military judges have been named to Spain's General Council of the Judicial Power. Details here, in Spanish.

The commish

Military Commissions Chief Prosecutor Brig. Gen. Mark Martins released the following remarks yesterday at Guantanamo Bay before the resumption of pre-trial hearings in the case of Khalid Shaikh Mohammad et al.

Courtesy of Lawfare.

Military law decisions by Supreme Court of Canada this coming Friday

The Supreme Court of Canada announced today that judgments in the following appeals will be delivered at 9:45 a.m. EDT on Friday, July 22, 2016. 

• Sa Majesté la Reine c. J.G.A. Gagnon et autre 
• Sa Majesté la Reine c. A.J.R. Thibeault. 
• Her Majesty the Queen v. Cawthorne 

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SUMMARIES

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Her Majesty the Queen v. J.G.A. Gagnon 

Her Majesty the Queen v. A.J.R. Thibault

Fundamental justice - Prosecutorial independence - Appeals - Courts - Jurisdiction - Judgments and orders - Stay of execution - Whether s. 230.1 of National Defence Act, R.S.C. 1985, c. N-5,infringes s. 7 of Canadian Charter of Rights and Freedoms- If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s.1 of the Charter - Whether s. 230.1 of National Defence Act infringes s. 11(d) of the Charter - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s.1 of the Charter - Whether stay of execution of Court of Appeal’s declaration of invalidity should be ordered pending this Court’s decision on constitutional questions raised in this case.

The two respondents, who were members of the Canadian Armed Forces, were charged with sexual assault in two separate cases and were successful at trial. When the appellant appealed the verdicts, the respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence. The Court Martial Appeal Court held that s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The respondents’ motions to quash and dismiss the appeals were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.

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Her Majesty the Queen v. Cawthorne

Criminal law - Accessing child pornography - Possession of child pornography - Mistrials - Whether the military judge erred when he exercised his discretion to dismiss the motion for mistrial.

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

Judge Darden dies at 93

William H. Darden, who served on the U.S. Court of Military Appeals (now known as the U.S. Court of Appeals for the Armed Forces) for five years, has died. A short obituary from the Washington Post can be found here. He was 93 years of age. While serving as chief judge, he dissented in United States v. Calley, 22 U.S.C.M.A. 534 (1973).

Yugoslavia, international tribunals and the politics of reconciliation

Open Democracy.net has this posting of interest. (My title is their title.)

The International Criminal Tribunal for the Former Yugoslavia (ICTY) acquittal of the leader of the Serbian Radical Party, Vojislav Šešelj, provoked angry reactions in Croatia, Bosnia and Hercegovina, Kosovo, and beyond. Memories of Šešelj’s appearances in the Serbian media and his hate-mongering against non-Serbs during the 1990s are still vivid in the minds of many people from the region.

This may not be news to those who follow ICTY closely. But I found this most interesting.

The acquittal of Vojislav Seselj was last in a series of problematic court decisions regarding other important political leaders and military officers accused of various offenses during the bloody breakup of the SFR Yugoslavia. The consequences of such decisions have been the weakening of trust in ICTY as an institution, and the rise of various conspiracy theories on geopolitical interests of ICTY.  (Emphasis added.)

The three authors referred to are Dr. Eric Gordy, Dr. Srdja Pavlovic, and Dr. Amanda Hysa.

ISMLLW program in Singapore

This week the International Society for Military Law and the Law of War participated in a program focused on both military justice and operational law hosted by the Singapore Armed Forces. Participants included Society President Brig. Gen. (Ret) Jan Peter Spijk, Maj. (Ret) Navdeep Singh, Andrew Cayley, QC, Maj. Gen. (Ret) Nilendra Kumar, Cdr. (Ret) Christopher Griggs, and the Editor.

Uganda sued over court-martial of M.P.

"I am objecting to be tried in the Court Martial because I believe this court has no jurisdiction to charge me. I am not a soldier, I have never been a soldier, neither have I ever attended any military training. So, this court has absolutely no right to charge me."

From this article about a lawsuit a Member of Parliament in Uganda has filed to block his court-martial.

Time is of the essence to both bring a matter to trial and to complete the trial

In  R v.Jordan 2016 SCC 27, in a 5 to 4 decision the Supreme Court of Canada has set new rules for an accused’s right to be tried within a reasonable time frame. Superior Court cases will now have up to thirty (30) months to be completed from the time a charge is laid to the conclusion of the trial. Provincial court trials should be completed within eighteen (18) months of the charge being laid. 

Any delays extending beyond these time frames will be “presumptively unreasonable,” violating the accused’s Charter right to be tried within a reasonable time.

Publication controversy continues in Paraguay

Pres. Horacio Cartes

A retired colonel who previously served on the Paraguayan Military Supreme Court has expressed surprise that three laws from 1980 have not been published in the Official Gazette, as required by the Constitution. Col. (Ret) Claudio Balbuena Acosta says that if the Executive does not publish the laws, Congress or the president of the Senate can do so. Moreover, senior military officials might be in legal trouble themselves for imprisoning personnel illegally. Details here, in Spanish.

More from Uganda

Watch for an appeal to the High Court following the announcement of sentences in the treason case being tried before the Uganda People's Defence Force general court-martial. Some of the likely grounds for appeal are apparent from this report in the Kampala Observer.

The right forum to try an M.P.?

NTV-Uganda has a report about an ongoing Uganda People's Defence Force court-martial of a civilian--a Member of Parliament.

Nakawa MP Michael Kabaziguruka has petitioned the High Court's civil division seeking an order to halt his on-going trial before the General Court Martial at Makindye.

Through his lawyers of Rwakafuuzi and Company advocates, Kabaziguruka challenges this trial on grounds that his right to a free and fair trial will be curtailed at the General Court Martial.

Kabaziguruka who questions the impartiality of this court also says that the Constitution prohibits the trial of an accused person in any court which is not independent and subject to direction or control of any one. He claims the General Court Martial takes orders from President Museveni.

Kabaziguruka also wants a court declaration that this trial is a violation of his constitutional right since he is not subject to millitary law.

From AFP mutiny fugitive to high office

How does a person go from being a suspect in a notorious mutiny to enemy-of-the-state fugitive to Commissioner of Customs of the Philippines? Therein lies the tale of Capt. Nicanor Faeldon, summarized here.

File under "you couldn't make this up"

Global Military Justice Reform today introduces a new feature, "You couldn't make this up." Herewith, thanks to The Hartford Courant, Exhibit A:

A former state correction officer and lieutenant colonel in the Army Reserve was arrested Friday on charges that he collected wages from the state while serving a prison sentence at Fort Leavenworth, Kansas.

Read the whole article here.

Infra dig order in Nigeria

Mike Ozekhome SAN

Civilian lawyers practicing in Nigerian courts-martial have been ordered to wear robe and wig even if the presiding officer wears a military uniform rather than a robe and wig. Details here. It seems to be a big deal and has the Nigerian bar highly exercised (excerpt):

Conventionally, Nigerian lawyers appearing before judges that are themselves not robed are not required to dress in wigs and gowns. 

Usually, only judges from High Court and above are robed. As such, lawyers appearing before them are required to be robed. 

The Legal Practitioners Act currently specifies how and when lawyers are to dress in wigs and gowns. The military court-martial, which is the equivalent of a tribunal, falls below the category that requires full regalia for lawyers. 

“If the special court-martial is presided by an equally robed military lawyer- officer presiding, then it is all well and proper, for lawyers to be robed in appearing before him,” Mike Ozekhome, a Senior Advocate of Nigeria said. “If, however, he wears his usual professional military uniform, then it becomes infra dig and abominable for a fully robed professional lawyer to appear and take a bow before a khaki-wearing military officer.”

The latter scenario is what the army has ordered and Mr. Ozekhome says it will be demeaning, “and a great insult to the revered legal profession”. 

“It’s [a]kin to requiring a reverend father wearing his priestly cassock to take a bow before a Chief Priest who wears no such cassock, but his “Dibia” regalia, in his shrine. 

That is absolutely not acceptable.” he added. 

Jibrin Okutepa, another Senior Advocate of Nigeria, called for a total boycott of the order. 

“Such directive is to say the least, unconstitutional, illegal and should be ignored,” he said. 

He argued that the Army Chief’s order is inconsistent with the Legal Practitioners Act. 

“The LPA allows lawyers to dress in robes in High Courts, Courts of Appeal and Customary Courts of Appeal, where the presiding officers are robed. If they are not robed, you cannot be robed for a person who is not robed.”

Editor's prediction: the Bar will win this one. 

Lederman & Vladeck on the latest al-Nashiri decision

Military commission mavens Marty Lederman and Steve Vladeck have an excellent post on Just Security about the latest decision of the U.S. Court of Military Commission Review (per Scott Silliman, Dep. C.J.). Excerpt:

The court’s opinion is quite prolix and somewhat difficult to parse. Two things about it stand out, however: 

First, the court apparently held (p. 10) that whether the Limburg bombing occurred during an armed conflict is not a question of subject-matter jurisdiction: “[A]ppellee incorrectly couched his argument in jurisdictional terms.” (See also the court’s section heading on page 7: “Subject-Matter Jurisdiction Not Implicated.”) The court did not offer much of a rationale for this conclusion, however. The entire basis for its holding appears to be the fact that the armed conflict question is not mentioned in the section of the MCA titled “Jurisdiction of military commissions,” 10 U.S.C. § 948d. Another MCA provision, however, 10 U.S.C. § 950p(c), states plainly — and correctly — that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” (As Marty explained in his earlier post, the MCA in turn defines “hostilities” as an armed conflict “subject to the laws of war.”) Subsection 950p(c) is, thus, like § 948d, a provision establishing a statutory precondition for the commission’s exercise of subject-matter jurisdiction. Indeed, even if the MCA itself did not require that the charged conduct was part of an armed conflict that violated the laws of war, the Constitution probably imposes such a requirement for military commission trials, as Steve has argued at length. The CMCR’s decision about subject-matter jurisdiction, therefore, is almost certainly incorrect. 

Second, the court then proceeded to hold (p. 25) that even if the armed conflict question were one of subject-matter jurisdiction, it is also an element of the charged offenses, and therefore it ought to [must?] be resolved at trial, rather than before trial: “[B]ecause this pretrial motion raises factual questions that are interwoven with the issues on the merits, resolution of those factual questions must be deferred until trial.” (The court cryptically added that the military judge could decide the “factual” question before trial, on a motion for dismissal, under certain “circumstances” that are not clearly delineated but that appear to include a possible party stipulation to the facts in question, or the judge’s acceptance of “a full proffer to determine the nexus issue in a pretrial hearing.”)

Unfortunately, the CMCR did not come to terms with the real issue presented by the Limburg charges (in part because the parties’ briefing was not very clear on it) — which is a question of law, not fact. . . .

The authors' bottom line: "All of which is to say that the al-Nashiri trial will not begin any time soon…"