Colombia: now comes the legal reckoning

Now that a peace deal has been concluded in Colombia, how will justice be meted out to those who committed the most serious crimes during the decades-long FARC revolt? This article suggests that difficult questions remain. Excerpt:

To date, almost 7,800 members of the army have been linked to cases of extrajudicial killing. Only 610 have been convicted. 

Under the peace agreement, a Special Jurisdiction for Peace will be responsible for the investigation and prosecution of more than 32,000 cases of atrocities committed by both sides. The tribunal will have exclusive jurisdiction over state agents charged with crimes.  

Those who immediately confess will avoid imprisonment and receive alternative sanctions for a period of five to eight years. Those who deny charges against them face imprisonment up to a maximum of 20 years. In comparison, officers and soldiers convicted in Colombia’s national courts have been sentenced to more than 35 years in prison for their involvement in the false-positive scandal. 

Richard Dicker, director of the international justice program at Human Rights Watch, explains that “the provisions for penalty in the Special Tribunal are significantly out of line with the way international courts penalize crimes against humanity.”

Kyrgyzstan debate on military court abolition bill

Whether to abolish the military court has become a focus of debate in Kyrgyzstan. Consider this report:

Chairman of the Military Court opposed liquidation of the department. Nurlan Ashybekov said today at a meeting of the Parliamentary Committee on International Affairs, Defense and Security. 

According to him, exactly the Military Court considers high-profile criminal cases, including the events of April 7, 2010. It considers civil cases involving military personnel. Besides, the Military Court has its own specifics and work rules. He noted that it is easy to destroy the system, but it is extremely difficult to recreate it. 

He was supported by the deputy Bakhadyr Suleymanov. He believes that first it is necessary to reform the civil procedure, and then to take up for military courts. 

"We have not put things in order in the civil proceedings, and already deal with the military courts. Did they drown in corruption? Would not it end in . . . chaos?" the MP said. 

One of the initiators of the bill Maksat Sabirov noted that there is nothing terrible in the liquidation of the Military Court. Civil judges also can deal with military affairs. In addition, it is not necessary to focus on the experience of neighboring Russia and Kazakhstan, where there are military courts and disciplinary battalions. The Kyrgyz Republic has no disciplinary battalions, so there is no need for the Military Court, the MP believes. 

Bakhadyr Suleymanov said that Russia and Kazakhstan do not have, for example, the same financial police, and proposed to eliminate this structure in Kyrgyzstan. He concluded that it was necessary to approach very closely to the issue of military operation not to get additional problems with the country's security.

 Query: why is a military court needed to try civil cases?

Uganda shelves critical report on military trials

The Kampala Observer reveals here that the Ugandan government has opted to shelve a critical report on the record of the country's military courts. The report was a joint effort by the UN Office of the High Commissioner for Human Rights and the Uganda Human Rights Commission. Excerpt from The Observer's account:

"Key among the violations are that: suspects are denied the right to a speedy trial, evidence obtained through torture is routinely accepted in evidence without inquiry into allegations made by suspects, suspects do not have adequate facilities to prepare their defence, the legal service provided during trials by the UPDF falls far short of the requisite standards and there are overt violations of the presumption of innocence," says the 47-page report. 

Highly-placed sources revealed to The Observer that the contents of this report, titled Justice for civilians in Uganda's military courts: an analytical report, were discussed in a June 2016 Army Council meeting. Thereafter, the senior leadership of the UPDF, which comprises the army council, decided to shelve the document without making a decision on it. 

The report, which becomes public at a time when Nakawa MP Michael Kabaziguruka is battling his trial in a court martial, makes a series of recommendations to the UPDF court martial, the Supreme [C]ourt and Parliament. Kabaziguruka petitioned the High court saying the court martial did not have the right to try him, but he lost that case. 

NO CIVILIANS 

In their report, the rights bodies recommend that the court martial should urgently process and implement the transfer of civilian cases as earlier mentioned, dispose of cases that have no evidence or witnesses traced, and release on bail suspects who have spent the constitutionally-mandated period on remand.

The report seems not to be on the Internet yet. 

Why is this case being tried in a military court?

Boris Nemtsov

On October 3, 2016, the Moscow Military Court will hear a case arising from the assassination of opposition leader Boris Nemtsov. Details here, in Spanish.

Why is it being tried in a military court?

Pakistani Supreme Court is asked to review its own decision in 21st Amendment capital case

Asma Jehangir

Leading human rights lawyer Asma Jehangir and Col. (ret) Muhammad Akram have asked the Supreme Court of Pakistan to review its prior decision upholding the death sentences of civilian clients who were convicted by a military court. According to this report from The Nation:

The petitioners contended that the apex court did not take into consideration errors apparent on the face of the record. 

Asma Jehangir submitted that the top court judgment presumed guilt and has thus taken away the most basic guarantee of due process during trial even in the military courts and has travelled beyond 21st Amendment and Pakistan Army (Amendment) Act (PAAA), 2015. 

She said the PAAA 2015 and 21st Amendment are protected under the constitution that does not oust the application of fundamental rights guaranteed in the constitution, while trying the civilians in the military court. 

Asma stated that the august court did not address the argument that initially her client was arrested many years ago under Action (in Aid of Civil Power) Regulations, 2002, which has been challenged as being ultra vires of the constitution. She said the case is partly heard and its adjudication was necessary before declaring the military trials of accused/convict as being without malice in law. 

The petitioner claimed the judgment has ignored the fact that record of the trial court was not disclosed to the counsels and was opposed vehemently before the august court as well. The record was only shown to the legal counsels after the intervention of the apex court and that too they were not allowed or permitted to take any notes of the records. 

The apex court judgment has overlooked the fact that even under rules 84, 85, 86 and 87 of Pakistan Army Act Rules 1954, a counsel is defined as a person to be properly qualified and is a legal practitioner authorised to practice with right of audience in a court of sessions in Pakistan. 

The petitioner also claimed that the apex court judgment ignored that the confession made (if at all) after many years of illegal detention and isolation was made under duress and was thus not made in voluntary manner.

End of military courts in Kyrgyzstan?

This article suggests that Kyrgyzstan may be on the path to abolishing separate military courts. Excerpt:

MPs are considering amendments to the law on the status of judges. It provides a complete rejection of the military courts. The initiators believe that the work load of military judges is small and their salaries are higher than that of the servants of Themis in local courts.

Here we go again

A Tunisian journalist has been summoned before the military court's juge d'instruction on suspicion of having insulted the dignity and reputation of the Army in a Bastille Day article. Details here, en français.

Bridging process in Buchris case

Brig. Gen. (res) Ofek Buchris

Haaretz reports here that the case of IDF Brigadier General (res) Ofek Buchris is heading into a "bridging" process -- a kind of mediation -- presided over by a retired Military Advocate General and judge -- with a view to achieving a pretrial agreement. The article is quite interesting for its description of the process as well as how and when the victims get to express their views.

Ugandan MP appeals to the Court of Appeal

The Ugandan MP who is among the civilians being tried by court-martial has appealed the High Court decision upholding the court-martial's jurisdiction over him. The Monitor has details here. Excerpt:

On September 16, Justice [Patricia] Basaza [Wasswa] dismissed the MP's petition which was challenging his trial under martial law when he is a civilian. The judge held that Section 119 of the UPDF Act gives unlimited jurisdiction and powers to the General Court Martial to try even civilians. 

Justice Basaza added that unless the Act is repealed or invalidated by the Constitutional Court, the law demands that civilian suspects be subjected to military law if they are liable for aiding and abetting serving UPDF officers to commit service offences. 

Mr [Michael] Kabaziguruka contends that the trial judge erred in law and fact when she found that the court martial had jurisdiction to try him. He says the judge failed to exercise her jurisdiction under article 50 of the Constitution and, therefore, failed to find that he could not have a fair trial in the military court.

One-line decision in Pakistani capital cases

One fact particularly jumps out in this story about the latest capital case challenges in Pakistan: the Army Court of Appeals is said to have disposed of the cases in a one-line decision. Excerpt:

They contended the judgment passed by the FGCM [Field General Court-Martial] was challenged before a Military Court of Appeals that through single lined Judgment rejected their appeals on July 25, 2016. 

During proceedings of appeals, the petitioners were not provided with the copies of FGCM proceedings.

The petitioners contended that they were innocent and had been made scapegoats to save the real culprits involved in different cases. 

They argued that from the sequence of events right from their arrest till rejection of appeals, it appeared that the petitioners had been awarded death penalty already determined by the elements at the helms of affairs. 

The sentence is not sustainable in the eye of law. 

The petitioners further contended that throughout the court proceedings, their lawyer provided them for defense was a mere spectator. 

All witnesses had changed and fine-tuned their statements recorded previously.

Turkish proposal to abolish top military courts

There seems to be a movement afoot to amend the Turkish Constitution in ways that will affect military justice, including abolition of the top military courts. Sparse details here. Stay tuned.

Why even bother with military courts in Pakistan?

Pakistan Today has this sick op-ed by freelance columnist Muhammad Ali Baig (left). Excerpt:

In the opinion of the author, the use of Clausewitzian “Remarkable Trinity”, a ruthless and brutal general like [Nazi] General [Reinhard] Heydrich is what Pakistan needs, who is dominated by atrocious and vicious tactics coupled with intellect and patriotism. Since conventional deterrence is not enough for terrorists and their actions and Draconian measures are not to be avoided to obliterate terrorism. Some liberal elements in the society may criticise military courts and the death penalty, but Pakistan actually needs the execution of terrorists on the spot without any trial. . . .

*   *   *

. . . The police force and intelligence mechanism need to be merged into some Federal-level organisation like the German Reich’s Main Security Office, which must be given control of all provincial-level police and law-enforcement agencies. Thus a highly centralised and well-communicated centre will be able to monitor all the activities to achieve a single goal.

Think this high-and-tight "freelance columnist" might be in the military? 

Navy protesters

Military.com reports:

In the wake of two sailors going public with their decision to show solidarity with the Black Lives Matter movement by refusing to stand when the Star Spangled Banner [left] is played, Navy Reserve Forces Command today published guidance warning troops that they can be punished or prosecuted for such protests.

Editor's note. This is likely to be a continuing issue. It would seem highly desirable for leaders at the highest level to speak about it, recognizing both that our fellow-citizens in uniform remain very much a part of the national discourse and retain broad First Amendment rights -- and explaining how those interests must be reconciled with the demands of good order and discipline. It can be done. It also has to be done.

Law on hold

An interesting situation has surfaced in Canada, according to this article in The Ottawa Citizen. Parliament passed Bill C-15 -- amendments to the National Defence Act -- in 2013, and the measure promptly received Royal Assent. The problem is that effective dates remained to be determined by the cabinet, and at present some 60% of the law's provisions -- some of which apply to the military justice and grievance systems -- have still not been put into effect. To be sure, a new government has taken office and presumably needs time to come up to speed. That said, three years in limbo seems excessive. Query: will an action lie to compel putting provisions of the law into effect?

Dual sovereignty at work

Everyone knows about double jeopardy, but because of the American federal system, the Fifth Amendment does not bar sequential prosecution by state and federal (including military) authorities. This is called the "dual sovereignty" doctrine. Here's a prime example, as reported by The Virginian-Pilot. A state court in Virginia imposed a six-month sentence on a sailor who shot a friend. Because the Navy and the victim's family deemed that an inadequate punishment, a second trial ensued, this time before a court-martial -- and another two years in prison.

Court-martial jurisdiction in Switzerland

The Swiss military justice website includes this summary of jurisdiction:

The scope of application of the military criminal law is limited to the armed forces and the Border Guard and their organisations and to the members of the national security services. The list of offences therefore does not include typical civilian crimes, such as crimes against the family, offences against official or professional duties, or debt collection and bankruptcy frauds. If a member the armed forces or member of the Border Guard commits a crime of this type during his term of service, he will remain subject to the civilian criminal code and to the jurisdiction of the civilian courts.

Note the various categories: jurisdiction over which government entities, which personnel, and which offenses. 

RMP investigating abuse allegations from Afghanistan

The Guardian reports here on a major investigative effort by the Royal Military Police into allegations of abuse said to have been committed by British military personnel in Afghanistan. From the article:

Two law firms, Leigh Day and Public Interest Lawyers in Birmingham, are now facing disciplinary action after the government lodged complaints with the Solicitors Regulation Authority (SRA) over Iraq cases commenced by both firms. Both firms deny any wrongdoing. 

The Law Society, however, on Thursday accused the government of attempting to undermine the rule of law by intimidating solicitors who pursue legitimate cases.

The Law Society president, Robert Bourns, said: “The rule of law protects and holds every single one of us accountable, from the most powerful to the most vulnerable.

“Military personnel should have the ability to pursue claims for wrongdoing and should also be held to account if their conduct breaches international laws. Lawyers are also held to account if their actions violate their professional code of ethics or break the law. Each case must be based on merit, without prejudice. 

“Lawyers must not be hindered or intimidated in carrying out their professional duties and acting in the best interests of their clients within the law. They should not be identified with their clients or clients cases. This principle is set out in the United Nations basic principles on the role of lawyers. 

“The right to access to justice for all depends on lawyers being able to represent their clients’ cases within our framework of laws, no matter how the client or case may be perceived by the public, media or government. The merits of each case are decided by the relevant court, a function that is and must remain separate from government.”

The full Law Society statement can be found here. As of August 31, 2016, Public Interest Lawyers has closed its doors.

Why is this case in a military court?

Al Huffington Post reports from Tunisia that Hizb Ettahrir, an Islamist political party, is objecting to the exercise of jurisdiction over it by the country's military court. The party argues that only soldiers can be brought before the court under Article 110 of the Constitution. Details here, en français.

Pakistan's military courts -- yet another aspect

Here's another aspect of Pakistan's military courts that readers from other legal systems will find startling. According to this report, a capital case involving a civilian who was tried for murder by a military court under the country's 2015 21st Amendment (due to expire in January)* may be settled by a compromise with the victim's heirs. The matter has been sent to the Judge Advocate General Branch for confirmation.

* We'll see.

Gaza and military investigations

Very little happens in or concerning Israel and Palestine that is not contested. Here is a New York Times report about NGO criticisms of the IDF Military Advocate General's investigation into possible law of armed conflict violations in Operation Protective Edge, in Gaza. The article includes this link to the MAG website's summary of the investigations.

Rapes in Somalia: conflicting accounts

The Monitor has this report about conflicting official information about whether Ugandan soldiers raped civilians in Somalia. Excerpt:

Two senior officers of the Uganda Peoples Defence Forces (UPDF) have disagreed on claims that some of its soldiers under the African Union peacekeeping operations in Somalia raped or sexually exploited Somali girls and women. 

Col Godard Busingye, the Deputy Chief of Legal Services in the Ministry of Defence, yesterday said some soldiers were arrested and charged in the military court for the alleged sexual offences. 

In stark contrast at the same workshop, the commander of the 4th Division in Gulu, Brig Muhanga Kayanja, maintained the army's previous position that the Human Rights Watch accusation of sexual abuses and exploitation of Somali women against the UPDF peacekeepers were baseless.

Terms of office for appellate military judges

The U.S. Air Force (like the U.S. Navy and U.S. Marine Corps, and unlike the U.S. Army and U.S. Coast Guard) does not yet have fixed terms of office for its judges. This will change if and when the UCMJ revisions in the FY17 NDAA are enacted, although implementing provisions in the forthcoming Manual for Courts-Martial revision will be pivotal. (Nothing like holding out to the bitter end, is there?)

For a sense of the surprising range of the actual duration of judicial service of past Air Force appellate military judges under the prevailing at-will, anything-goes environment, consider this table found on the U.S. Air Force Court of Criminal Appeals website.

Benefits of extradition -- then the Americans stepped in

The  Colombian peace plan which is scheduled to be signed next Monday has given rise to complaints by some that some members of the FARC, who have committed atrocity crimes, should not be permitted to escape punishment.  On Sunday, September 11, 2016, The New York Times devoted three full pages to a cover story on the situation of Colombian paramilitaries entitled "US Extradition Benefits Warlords from Colombia -- Held to Account for Decades of Atrocities- Until the Americans Stepped In." Perhaps the treatment of the FARC is designed to balance the treatment of the paramilitaries.

According to the NYT, several dozen Colombian paramilitary will have completed their prison time and will have served an average of 7-1/2 years in US prisons.  The paramilitary leaders, extradited en masse, will have served an average of 10 years for drug conspiracies that involved tons of cocaine. In comparison, federal prisoners who sold less than an ounce, serve an average of over 12 years in prison.

One notorious paramilitary, Salvatore Mancuso, found responsible for the death or disappearance of more than 1,000 people by Colombia courts, was extradited to the US and under the terms of his plea agreement faced 30 years to life in prison.  Because he collaborated extensively with the authorities and even cried, begging forgiveness from his victims, a federal judge sentenced him to just under 12 years in prison.

Notably, in 2001, then Secretary of State Colin Powell, designated the paramilitaries (the United Self Defense Forces of Colombia known as the AUC) a foreign terrorist organization, just like the FARC. Despite this terrorist designation, two paramilitaries, even though wanted by the Colombian authorities, have been granted permission to the stay in the United States after completing their sentences, and their families have been permitted to join them.  Three more are seeking the same deal and others are expected to follow suit.

Civilians in Pakistan's military courts

A 3-judge bench of the Supreme Court of Pakistan has been hearing a challenge to the military trial of a civilian. This report observes:

The Supreme Court on Tuesday adjourned hearing of the case regarding conviction of a civilian by the military court and remarked that civilians can be trialed by the military court. 

The court remarked that the five-member larger bench of the apex court in its ruling had already remarked that civilians can be trialed in military courts. 

The three-member bench of the apex court headed by Justice Mian Saqib Nisar heard the case filed by Ihsan Azeem against his conviction by the military court. 

During the course of proceedings, the counsel for petitioner apprised the court that the accused was arrested from Wah Cantt on July 22, 2013. 

He said that the accused was held over alleged murder. He also informed the court that counsel's access to his client was also denied by the military court. 

He said that the military court awarded death sentence to his client in one sided trial. 

Justice Saqib Nisar remarked that civilians trial in military court was according to law but the court had opened options in this regard. 

The bench also observed that the case should be referred to the judge who authored verdict in military court's trial case.

An unusual request

A British Army officer currently on sick leave has made an unusual request. According to this report:

An Iraq War major alleged to have been connected with the 2003 drowning death of an Iraqi teenager has said he will hand himself into a war crimes court because British justice is incapable of giving him a “fair trial.” 

The unnamed serving officer maintains his innocence and in a letter to Defence Secretary Michael Fallon has condemned the “13-year witch hunt” he claims he and his men have been subjected to.

Law schools and military law: a thought from Nigeria

Toye Akinlade, who teaches at the Nigerian Army School of Legal Services, has written this worthwhile column suggesting that civilian law schools ought to offer instruction in military law. Excerpt:

The pace of development of military law practice in recent times has brought it to lime light that it is an area of law that needs more vocal attention at the undergraduate level. It is however unfortunate that military law is not being taught as a course in any Nigerian University, not even as an optional elective course. It is true that military law is only applicable to persons subject to service law. However, when persons subject to service law are dissatisfied with the judgement of a court-martial, they go to the Court of Appeal as the court-martial has the same ranking with a state high court.

Not a bad idea for law schools in other countries as well. 

300,000 and counting

Later today Global Military Justice Reform will pass another milestone: 300,000 hits. We've already had a whopping 2964 posts and 435 comments. Many thanks to the contributors (listed at the right), commenters, and readers from an astounding 167 jurisdictions (a few more to go) around the globe who have made this possible in less than three years.

Please keep visiting this blog; please keep the posts and comments coming (real names only, please); and please pass the word to friends and colleagues.

Many thanks from the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

Thai military and civilian courts compared

The Nation has this article comparing Thailand's military and civilian courts. Excerpt:

Both military and civilian courts rely on the same Criminal Code. Defendants in both can appoint lawyers and suspects can be freed on bail. However, the Military Court comes under the Defence Ministry, which is mainly focused on security, while the Court of Justice is one of three sovereign functions for justice. 

While all civilian judges must be at least barristers, those in the Military Court are not required to have legal knowledge, although military judge advocates are. This is reasonable since the Military Court was initially set up to deal only with military offenders. 

Admiral Krisda Charoenpanich, the Military Court's judge advocate-general, said all civilian cases brought to his courts had been heard by judges on legal grounds only. "That was to ensure the public that the Military Court functioned no differently from our civilian counterpart," he said. 

However, Pawinee Chumsi from the Thai Lawyers for Human Rights thought differently, according to her experience in both kinds of courts. 

There were not only principles and regulations that marked the difference, but also how the Military Court practically dealt with circumstances, which she said affected ways she wished to conduct hearings. 

"For unknown reasons, the Military Court takes a long gap between each summons of witnesses. Each gap could last a month a two," she said. "It means defendants are held in detention a long time, until the court is done with interrogating witnesses. This could take from several months to a year." 

Civilian courts would schedule successive days to summon witnesses so trials could advance to the next step.

Why was this case tried in a court-martial?

A U.S. Coast Guard Academy cadet has been convicted of a sexual assault committed in Pennsylvania. The case was initially investigated by local police in Westchester, PA. The Academy is located in New London, Connecticut. According to this New London Day report:

The Coast Guard took over jurisdiction of the case after people expressed concerns about [Michael] Shermot's military status and about some of the witnesses involved in the case.

The usual question: why wasn't the case tried locally? The Day's account is uninformative.

Hide-and-seek

Thanks to CAAFlog, we know that President Barack Obama some time yesterday signed an Executive Order amending the Manual for Courts-Martial. And we know that the guts of the apparently still unnumbered EO -- the actual changes -- are unavailable.

Armed with this [lack of] information, the Editor consulted the website of the Joint Service Committee on Military Justice, which generates Manual changes, naively assuming the changes would be available there, at least. Here's the link.

In this digital age, shouldn't those with an interest be able to tell at a glance what went to the President and what he signed, essentially immediately? If what he signed was different from what was circulated for public comment in any material respect, should it have been recirculated, as would be required if this were an Administrative Procedure Act rule making (which it's not)?

Afterthought: And why not post the comments and suggestions the JSC receives?

Military Justice: A Very Short Introduction

The Editor is happy to report that Military Justice: A Very Short Introduction (Oxford University Press 2016) should ship any day now. Available from Oxford or your online or local bookseller.

Looting, Basra, and Rules of Engagement

Sir George Newman QC

The Guardian reports on a report by Sir George Newman QC about the drowning death of a teenager suspected of looting in Basra. Excerpt:

Newman’s inquiry was given a statement by a former captain in the Irish Guards who said that the practice of pushing looters into water “was absolutely known and understood” by British troops in Basra. 

“Unless you were an idiot, you could not have missed it and the talk of looters and what we did with them was on everyone’s lips all of the time. “Everyone knew, even in our HQ – of that l have absolutely no doubt. I’m not saying it happened a lot, but it happened. If someone said they didn’t know about the practice and what was happening I would unequivocally call them a liar.”

Tunisia's misuse of the military court

Resorting to the military court shows the government has already decided the sentence it seeks to impose on Hizb Al-Tahrir. This is especially evident after the civil court, the protector of freedoms, previously refused to carry out the government’s decisions designed to either suspend or end the activity of the party, underpinning dictatorial approaches in the government’s conduct. We cannot let this slide, whatever their arguments might be. We would like to take this opportunity to call on the Parliament to quickly pass bills that specify the limits of the military justice system and its judges, so as to enforce the new constitution and prevent the government from resorting to unconstitutional means in order to dispose of its Islamic opponents.

From this op-ed by Tunisian attorney and parliamentarian Samir Ben Amor

The case of the Ugandan parliamentarian

As previously noted, the general court-martial in Uganda has rejected a Member of Parliament's claim that that he is not subject to military trial because he is a civilian. (Four other accuseds are in the same boat.) Now the High Court has ruled against him as well, according to this account:

High Court Judge Patricia Wasswa Basaza has ruled that the Nakawa Municipality MP Micheal Kabaziguruka is subject to military law and therefore he should be tried by the General Court Martial for offences relating to security and treachery. 

The judge based her ruling on Section 119 of the UPDF Act which gives unlimited jurisdiction and powers to the Army Court to try civilians such as Kabaziguruka. 

According to the judge, unless this section is repealed or invalidated by the Constitutional Court, it makes civilian suspects subject to military law for allegedly aiding serving UPDF officers to commit offences. 

Justice Basaza has also dismissed Kabaziguruka’s claims that the Court Martial lacks impartiality to accord him justice saying the MP petitioned a wrong court which has no powers to address such a grievance. 

She instead reasoned that Kabazigurka who has been on remand at Kigo Prison since June this year should have petitioned the Constitutional Court.

The question now is whether Mr. Kabaziguruka will take his case to the Constitutional Court.

Parris Island hazing

NPR has aired this piece about impending disciplinary action against personnel at the U.S. Marine Corps' Recruit Depot Parris Island. The New York Times also covered the story, here. One Muslim recruit took his own life; another has testified to serious maltreatment. Several training officials at the iconic South Carolina installation have been removed from their positions.

Brigadier General John Baker speaks at Georgetown

Brigadier General John G. Baker, USMC, the chief defense counsel at the U.S. military commissions, has given a major talk at Georgetown University. It can be found here, on the Lawfare site. Excerpt:

If the U.S. Government still intends to use Nuremberg as its guide, they would be wise to listen to the chief prosecutor at Nuremberg, Justice Robert Jackson, who recognized the danger of powerful nations unilaterally dispensing justice onto a purported enemy. 

Justice Jackson said in his opening argument at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” 

Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice. 

If our government wants the most important criminal cases in American history to be tried by military commission, it is essential that the proceedings live up to the highest standards of American justice. They have not. Instead, they leave behind a legacy of uncertainty, government misconduct, and torture. This is a gross injustice being done to the individuals charged in the system, but it is also more than that—it is, as Justice Jackson recognized, a matter of national security and integrity as well.

Ugandan court-martial upholds jurisdiction over civilians

A Ugandan general court-martial has rejected a claim by a Member of Parliament and four others that the court lacks jurisdiction over them as civilians. Details here. Excerpt:

Nakawa MP, Mr Michael Kabaziguruka, and four others had challenged the jurisdiction of the military court to try them in connection with an alleged plot to overthrow the government. But this objection was dismissed with court chairman, Lt. Gen. Andrew Gutti ruling that Section 119 of the UPDF Act of 2005 empowers him to try civilian suspects. 

"... applicants were described as persons subject to military law by virtue of Section 119 (1) (g) UPDF Act. What this implies is that the applicants aided or abetted persons subject to military law to commit the offences charged," Lt. Gen. Gutti held in a ruling delivered in the absence of Mr Kabaziguruka.

Human right principles strongly disfavor the exercise of military jurisdiction over civilians.

Thailand's military court cases

Why did the Thai junta announce that it would stop taking civilians before military courts? Hint: it has to do with the UN's Universal Periodic Review? Details here.

Human rights organizations are complaining that there are still 500 civilian cases that remain in the military courts.

Despite 2013 legislative amendment, limitation period for civil claims against the Department of National Defence remains at six [6] months

In June 2013 the Canadian Parliament enacted the Statutes of Canada 2013, c.24, s.99 which amended section 269 of the National Defence Act extending the period of limitations for civil claims from six months to two years.

Three years later, this provision has yet to be brought into force. As a result claimants against DND are still faced with an impermissible short limitation period which is unique in Canadian law.

Why?

Human Rights challenges

Many of the issues chronicled by Global Military Justice Reform have to do with human rights. Although the following lengthy statement, presented today in Geneva by High Commissioner for Human Rights Zeid Ra'ad Al Hussein to the UN's Human Rights Council, is not directly concerned with military justice, it is an important document of which visitors to this site ought to be aware. As you will see, the impediments with which OHCHR must grapple are widespread and daunting.

Human Rights Council

Opening Statement by

Zeid Ra'ad Al Hussein

United Nations High Commissioner for Human Rights

Geneva, 13 September 2016

Mr President,
Excellencies,
Colleagues and Friends,

I am honoured to open this first session of the Council's second decade.

After two years as High Commissioner, I believe it is important for me to share with you in this oral update our concern over an emerging pattern: the growing refusal on the part of an increasing number of Member States to grant OHCHR, or the human rights mechanisms, access - either to countries generally, or to specific regions, when that access is requested explicitly, or in other instances to engage with us. Why and for what reason, do those who deny access place their shield before us?

I intend to devote this statement mainly to this single issue. Before I do, I wish to first draw on some general observations of our present circumstances.

In my statement before the 32nd Session of the Human Rights Council, I questioned the extent to which we did indeed have an international community. It is easy to take for granted we are committed to working together, because we have no choice. The organization we belong to was not created by humanity for trivial reasons, but was exhaled by a world broken and devastated by two immense wars. The entire human rights framework was likewise the product of catastrophe - enlightened yes, but given the scale of wartime savagery, it was created out of the sharpest and most profound necessity. Indeed, even today, the climate change and SDG agenda are anchored, layers deep, in that most strongly held-belief: only by working together can we solve our common problems. There is no alternative. No other choice offering any hope. We must remain committed to collective action.

Yet for some in power today, and others labouring to attain it, it would seem there are alternatives, and they claim to know better. Only dreamers, fools, they seemingly believe, think in terms of 'we the people', or in we 'nations united together', or in we as individuals who all hold equal rights. What is this United Nations? Outdated, laughable nonsense - bureaucrats and gilded elites! And those who believe this, think little of dividing humans into categories, and frightening or abusing the vulnerable; battering the truth; attacking regional or even international organizations - threatening to withdraw from them, abandon them, and jettison international law. And some are on the cusp of attaining political power - others are already exercising it.

Thai junta dials back on military trials

The ruling junta in Thailand is dialing back on military trials of civilians, but cases already in the military courts will stay there. Details here. Excerpt:

Civilians accused of royal defamation and other security offences will no longer be tried in military courts, the junta said Monday, rolling back a heavily-criticised practice introduced after their 2014 coup. 

Since the coup, breaches of a tough royal defamation law and other national security crimes have been punishable in military courts, presided over by a bench of officers. 

Those courts have imposed severe sentences including record jail terms for civilians of up to 30 years for alleged lèse majesté. 

But on Monday the junta said an August referendum vote endorsing their new constitution has allowed them to ease their grip on the legal system -- in a sign of the junta's increasing confidence that it has its political opponents under control. 

"For the past two years, the country has been in peace. People have co-operated in ... the steps to reform which saw the peaceful referendum," according to the order signed by junta leader Prayut Chan-O-Cha and published in the Royal Gazette. 

With the new charter to soon come into effect, the junta is repealing three orders allowing for the trial of civilians in military court, the statement added. 

Among other crimes, those orders covered allegations of lèse majesté, sedition and possession of war weapons. 

The changes come into effect immediately, but do not apply to civilians currently being processed by martial courts or offences committed before Monday's edict. 

That means dozens of people still face military justice.

The Bangkok Post has further specifics here.

Is Senate confirmation required for Paraguay's military appellate judges?

Pres. Horacio Cartes

A new issue has arisen in Paraguay: did President Horacio Cartes have to seek the approval of the Senate when naming judges of the Supreme Military Court? Details here.

New light on summary executions in Imperial China

Eugene John Gregory III

From Eugene John Gregory III's 2015 doctoral dissertation, Desertion and the Militarization of Qing Legal Culture:

Over the course of fifty years, the Qianlong emperor attempted to educate officials to autonomously carry out summary executions in “extraordinary cases” without ceding his authority over life and death. First, this involved changing the attitude of adjudicating officials – their collective adjudicative mentalité – so that they would be willing to summarily execute an offender rather than follow the entrenched and codified routine process for adjudication that required the emperor’s actual approval to carry out a death sentence. It required overcoming a legal-cultural taboo against summary execution. Second, it required that officials’ conform their judgement of what constituted “extraordinary” to the will of the emperor, thereby ultimately leaving control at the center. The impossibility of such a vicarious control resulted in fifty years of scolding and sometimes deadly edicts and rescripts in which the Qianlong emperor praised, upbraided, and guided officials in making this determination. Along the way, the idea that summary execution could be appropriate in extraordinary cases became a norm of late imperial legal-culture.

H/T for the link to Global Military Justice Reform contributor Susan Finder, Distinguished Scholar in Residence, School of Transnational Law, Peking University, and Visiting Fellow, Centre of Chinese Law, University of Hong Kong.

An unusual role sought for Tunisia's military court

One wonders why the following matter involves a military court:

The Tunisian government has called on the military court to suspend the Islamist Hizb ut-Tahrir party, deemed radical and a threat to security in the North African country, an official told media on Wednesday. 

President Caid Essebsi last week went public and asked for banning the party after it threatened “to cut heads and hands of state officials”, huffpostmaghreb.com reports. 

A State official speaking on condition of anonymity Wednesday indicated that the state submitted a demand to the military court asking for banning the party. 

“A request to ban was submitted recently. We are awaiting the decision of the military investigative judge,” the official said, deeming the ban is eminent.

The full North Africa Post article can be found here. 

An exemplary report from Guantanamo

Lawfare has this excellent post by Rishabh Bhandari about a day in the life of the al-Nashiri military commission case. If you have not been following the proceedings at Guantanamo on a regular basis, this is worthwhile reading to get both a sense of the issues and the flavor of the process.

"Bring more prisoners"

PHIL HIRSCHKORN: Guantanamo is not a cheap facility to keep running. These days — the prisoner census below a hundred — it’s estimated it’s three to four million dollars per prisoner, per year.

MICHAEL MUKASEY: Right. You know what the cure for that is?

PHIL HIRSCHKORN: No.

MICHAEL MUKASEY: Bring more prisoners.

From this PBS NewsHour report.

Armed Forces Tribunal Bar Association, Principal Bench, calls for protest on 22nd September 2016

The Armed Forces Tribunal Bar Association at the Principal seat at Delhi has called for a protest all over India on 22nd September 2016 on the issue of non-appointment of Judicial Members and other factors affecting the administration of Justice for military personnel and veterans and also the judicial independence of the tribunal.

The move has been covered by many newspapers including The Indian Express.

The entire and very pertinent letter by the Association, addressed to the Chief Justice of India, can be accessed here.

The association has set a good precedent by calling for observance of a protest day but not abstaining from work so that the interests of litigants and dignity of the legal profession are maintained.

Another Nigerian court-martial

A Nigerian special court-martial has convicted a Major General and demoted him to Brigadier General for having permitted foreign students to received clinical training at a Nigerian military medical facility without the approval of higher authority. Excerpt from this account:

The prosecuting counsel, Ukpe Ukpe, a Lt. Col., told journalists that the convicted officer was arraigned for using the Nigerian army’s property to train students from neighbouring Benin Republic without following the necessary procedure. 

Mr. Ukpe said the judgment was a balanced one as the court was very liberal in meting out punishment. 

“If you check Section 115 of the Alarmed Forces Act, the offence falls under Section 68. Punishment that could be meted out include dismissal, imprisonment or even death; but the court went down to reduction in rank which is balanced enough.” 

The defense coun[se]l, Enokela Onyilo-Uloko, a retired Wing Cdr., said the conviction had no legal backing and was an attempt to tarnish the clean record of his client. 

Mr. Onyilo-Uloko said this was because there was no law stating that senior officers must take permission from higher authorities before allowing such training. 

He said his client only did what his predecessors also did, which was no crime, adding that his client would appeal. 

“No such law was tendered in evidence but they are saying he should have used his initiative when there is no law finalising an act. It does not amount to criminal offence that my client is being tried for. 

“So, the conviction is based on nothing and cannot stand the light of day in the eye of the law. 

“And when we go higher to the Court of Appeal, I assure you, this conviction will be thrown out,” he said.

Jurisdiction over retirees

The U.S. Air Force is considering military justice action against a four-star general who retired in 2010. Details here. The Uniform Code of Military Justice applies to retired regulars (among others), and the armed services occasionally exercise that power. But human rights jurisprudence strongly disfavors the exercise of military jurisdiction over anyone other than active duty personnel.

Does it make a difference, for human rights purposes, if the offense was committed before or after retirement?

Tom Carpenter blog post about commander-centric military justice

Tom Carpenter has this post on the Huffington Post blog about the case of an Air Force junior officer. He explores the incentives and disincentives for commanders to refer controversial cases to trial, and recommends shifting charging power to trained prosecutors, as other countries have done, and as Sen. Kirsten Gillibrand's Military Justice Improvement Act would do. He also points out that in its 70 years, no Air Force general officer has been tried by court-martial.

Humor in uniform

It's the weekend--almost. So I was looking for something to fit in my Worth the Read category. Not opposed to a little humor in uniform, I came across a piece in the U. S. Naval Institute News, entitled, Officer in Charge of Sailors Captured By Iran Loses Appeal, Could Face Discharge. Some history of this contretemps can be found here and here.

But really I'm going to quibble with Microsoft and its failure to properly spell check a document before it gets published---an all too common problem in today's media and collapsed editing time frames.  Broadly, the development of computer spellcheck programs to assist writers is a good. For myself, I also use Grammarly for the tougher stuff.  Here's the reason you should not rely on spell-check---using the above article as an example.

failure to obey an order or regulation — of the Uniformed Code Military Justice (sic).

Yep, spell check didn't catch that.  Doing my own research I found that spellcheck was unlikely to catch the difference between Uniform Code of Military Justice, Uniformed Code of Military Justice, or Uninformed Code of Military Justice.  So I went back to the beginning of the article to test how accurate spellcheck really is and found an odd practice.  But then we have:

for violating Article 92 of the Uniform Code of Military Justice.

But then we go back to:

of the Uniformed Code of Military Justice

And, just to make it absolutely clear we have this three times in the same paragraph.  I have to admit that when I first read the word choices above I thought it said Uninformed Code of Military Justice; which is why I addressed the three alternate spellings in my testing.  On a final note, use of the auto-correct function does not seem to serve.

Next HIU should be on awarded punishments---huuuuum.