SANDF hampered by continuing lack of military judges

The South African National Defence Force continues to be shorthanded when it comes to military judges. According to this DefenceWeb account:

Defence Legal Services, the legal arm of the Department of Defence (DoD), did not have a particularly good 2015/16 year because of the non-appointment of military judges. 

According to the latest DoD annual report a total of 142 litigation cases were received by Defence Legal Services. 

“All these cases were attended to. Twenty-seven were finalised, 23 were settled in the best interests of the DoD and three were lost.” The report does not state what happened to the other 88 cases received. 

“This division was not in a position to perform to its full capacity to ensure the backlog of litigation cases were effectively attended to in the best interests of the DoD due to the non-appointment of military judges. The lack of military judges had a carry though effect on all other systems in the military justice system and compromised support for ‘zero tolerance’ on all forms of ill-discipline and abuse and abuse of power,” according to the report. 

The lack of military judges was pointed out by Sandu (the SA National Defence Union) is April last year with its national secretary Pikkie Greeff saying “the military court system has been brought to a grinding halt due to the fact that the required letters of appointment for military judges have not yet been signed by the DoD”.

He said at the time this ensured no military trials could either commence or continue until appointments were made and confirmed. 

In the preceding final year Defence Legal Services received 96 cases, attending to 83 with 23 litigation cases settled in favour of the DoD. 

There has, to date, been no announcement from either the DoD or the SANDF regarding the appointment of military judges.

Palestinian officer dismissed and jailed for criticizing president

Osama Mansour

Osama Mansour, a Palestinian Authority officer, has been dismissed and jailed for a year for a Facebook post that criticized President Mahmoud Abbas for attending the funeral of former Israeli President Shimon Peres. Details here.

High Court releases Uganda MP on bail

The High Court of Uganda (Yasin Nyanzi, J.) has granted bail to a Member of Parliament who is awaiting trial before a court-martial. The matter was handled ex parte because the Director of Public Prosecutions refused to appear, claiming he has no role in court-martial cases. This article from New Vision chronicles the strange case of Michael Kabaziguruka through the court system. It is not a pretty picture. Excerpt:

NYANZI CALLS FOR AMENDMENT OF LAW 

Before delivering his ruling, Justice Nyanzi called on the Law Reform commission, Parliament and individual members, to make amendments in the law so that in future the DPP does not simply refuse to respond to matters before court. 

“This is not the first time the DPP has refused to prosecute matters arising out of the army court. The same applied to Gen. [David] Sejusa’s case in February,” the Judge noted. 

SIMILAR CASE WHERE BAIL IS HEARD UNOPPOSED 

On April 1, the head of Criminal division of the High Court in Kampala, Justice Wilson Masalu Musene, also granted the former co-ordinator of Intelligence Services, Gen. David Sejusa alias Tinyefuza, a non-cash bail of sh10m, after prosecution declined to oppose his bail, saying his case arises from the GCM. 

“Why should court send the applicant back to Luzira when the constitution grants High court judicial powers in all matters? Even if there is no appeal or reference from the GCM, court cannot chase Sejusa from the temple of justice. I, therefore, grant him bail,” Musene stated. 

Sejusa was battling charges of absence without leave (AWOL), two offences of participating in political activities, insubordinate behaviour, as well as two counts of conduct prejudicial to good order and discipline expected from an army officer before the GCM.

Supreme Court of India fines the military in promotion case

Finding its orders on military promotions being unduly delayed, the Supreme Court of India, in a pending contempt petition, fined the military Rupees Twenty Thousand per officer for each month of delay in implementation.

The case related to the incorrect apportionment of vacancies of the rank of Colonel and above between various branches of the Indian Army in which the Supreme Court had passed a detailed decision earlier this year.

Ever since a cadre revision in the year 2004, various controversies have arisen on what is termed as an incorrect distribution of vacancies amongst various arms and services.

A detailed report on the subject can be accessed here.

Welcome, El Salvador

Just the other day we were wondering whether Nauru might be the next (170th) jurisdiction to surface among our readers. Wrongo! It's El Salvador, a few minutes ago. On to No. 171.

Still waiting, Nauru.

Social media, free speech and jurisdiction over civilians: a case from Venezuela

Four Venezuelan civilians have been charged before a military court for making a video for opposition political party Primero Justicia. The offense (among others): insulting the flag and the armed forces. The video was posted on Twitter. Details here, in Spanish.

Demonstration for Sergeant Blackman

Jonathan Goldberg QC

Herewith The Daily Mail's account of a demonstration in support of Royal Marines Sgt. Alexander Blackman ("Marine A"), who received an 8-year sentence for what some call a mercy killing. The case is pending before the Criminal Cases Review Commission. Excerpt:

QC Jonathan Goldberg, who is acting for Blackman, told the crowd that English law does not recognise a 'mercy killing', but in the past authorities had the sense not to press charges in such cases. 

Mr Goldberg said a soldier would now have to 'ring his solicitor before firing his rifle'.*

Footage from another marine's helmet-mounted camera showed Blackman quoting Shakespeare before shooting the insurgent. 

He told the fighter: 'There you are. Shuffle off this mortal coil, you c***. It's nothing you wouldn't do to us.' 

Blackman's minimum sentence was reduced to eight years but his challenge to the outcome of the original trial was unsuccessful.

* Editor's note. Given the facts of the case, this is complete flapdoodle. [Footnote added.]

A new twist: Zimbabwean military personnel in the civilian prosecuting agency

The Zimbabwe Independent writes here about the surprising number of military personnel seconded to the National Prosecuting Authority. Excerpt:

A legal expert with knowledge of the goings-on at the NPA told the Independent the deployment of the military was unlawful. The lawyer said section 213 of the Constitution, which deals with the deployment of the military, states that the President of Zimbabwe as commander-in-chief can only deploy soldiers “in defence of Zimbabwe; in support of the police service in the maintenance of public orderor in support of the police service and other civilian authorities in the event of an emergency or disaster”. 

“It is clear that as long as soldiers are not engaged primarily in their normal and ordinary day-to-day duties as provided for by the constitution, any deployment of soldiers not sanctioned by the President is illegal,” said the legal expert. 

“Deployment encompasses engagement in civilian institutions. However, assuming that the President deployed soldiers to the NPA, the former was enjoined by the Constitution of Zimbabwe to inform parliament in terms of section 214.” 

The section states that when the Defence Forces are deployed in Zimbabwe to assist in the maintenance of public order or outside Zimbabwe; “the President must cause Parliament to be informed, promptly and in appropriate detail, of the reasons for their deployment and … where they are deployed in Zimbabwe, the place where they are deployed”. 

He, however, said: “A reading of the parliamentary Hansard has not shown anywhere where the President has informed parliament that a troop of so many soldiers were deployed to the NPA. What that means is that the President has not deployed any soldier to the NPA. 

“In view of the de facto deployment of the defence forces to the NPA by whoever has such de facto powers, the question begging an answer is why militarism in a peaceful country such as ours?”

Uganda MP speaks out

The following is from this Observer interview with Michael Kabaziguruka, a Ugandan MP who is facing trial in a court-martial:

Why are you opposed to being tried in the General Court Martial? 

Have I ever applied to be part of the military? Have I ever been part of the military and do I wish to be? I don't think that, I being a civilian, I should be tried in the general court martial. There are other competent courts that could handle that kind of offence I'm charged with. 

I don't know; is the evidence only sufficient for the general court martial? Why are they dying to have me arraigned in the court martial? If they have evidence like they say, why don't they present it in a competent court? The court martial is a kangaroo court where I don't expect to get a free and fair trial. None of the people who sit on that panel is even fit to be a magistrate of any grade. 

So, how can they consider getting involved in a case whose maximum penalty is death? We know the kind of training judges get but those in the army court have not got any training that would put them in a position to interpret the law.

You can appeal the judgment of the military court martial if you are not satisfied. 

Why should I subject myself to an illegal entity, then appeal later? That would be madness.

Government appeal in Kenya Navy acquittals

The Director of Public Prosecutions of Kenya has appealed a High Court decision that had acquitted 25 members of the Navy in a mass prosecution for desertion. Details can be found here. Excerpt:

The appeal was filed exactly a year and two months after the High Court in Mombasa freed the 25 former naval soldiers after acquitting them on charges that they deserted Kenya’s military to work for US security firms in Afghanistan, Iraq and Kuwait. They had been sentenced to life imprisonment by three court martials at the Mtongwe navy base. 

However, on August 21 last year, Justice Martin Muya freed them after finding that the military courts convicted them without evidence. The judge ruled that Kenya was not at war when the soldiers left the military. 

Although the soldiers were found guilty of leaving the armed forces without official permission, they were freed on the account of time served since their arrest in early 2014.  

But now the State is arguing the judge freed the soldiers on a wrong premise as “there was no proper judgment issued in the case.”

One wonders whether the DPP's appeal is timely. 

Military Justice: will the arc continue to bend in a progressive direction?

The following comment by the Editor is cross-posted from the Oxford University Press blog:

Rarely has there been a time in which military justice has loomed so large, or in such diverse ways. Certainly at any given time there are likely to be one or two high profile cases around the world, but lately it has seemed that the subject is never long out of the public eye. Consider the following kinds of issues: 

• A Russian soldier stationed in Armenia murders a local family. Who should prosecute him for the murder, Russia or Armenia?  

• Peacekeepers in the Central African Republic prey on children for sexual favors. The UN has no judicial system to try such cases, and it needs to rely on troop contributing countries for military personnel. What if the troop contributing country is reluctant to investigate or prosecute? How aggressive can the UN realistically be in responding? Cancel the troop contingent’s participation in the peacekeeping mission? Insist on prosecution in open courts? Simply “name and shame”? 

Countries with little or no commitment to democratic values insist on prosecuting civilians in military courts, sometimes using “terrorism” as the justification. (Egypt is the primary example, but has no shortage of company. Pakistan’s supreme court in 2015 upheld a temporary constitutional amendment allowing military courts to try civilians for two years.) Is this ever justified? What should other countries say or do in response? 

Surprising levels of sex offenses by military personnel, often committed against other soldiers, have prompted serious concern by legislators in the United States, and a variety of strong remedial measures. This in turn has prompted fears that the pendulum has swung too far and that victims’ rights are being given higher priority than traditional rights of criminal defendants. How great a role should victims play in the criminal process? Should they have a veto over plea bargains, for example? 

As fallout of that same concern over sex offenses, attention has also come to focus on whether a shift in the basic structure of military justice in the United States is called for: should commanders continue to have the power to decide who is court-martialed for what and who will serve as military jurors, or should those critical powers be shifted to lawyers and jury administrators independent of the chain of command? 

The inexorable growth of social media and other kinds of widely available personal tech continues to present challenges to military tradition and, in the eyes of some, to “good order and discipline.” In a Facebook, crowdsourcing, or Pokemon era, can dissension in the ranks grow virally, and what, if anything, can military leaders do about it? 

What are the new challenges presented by the growing diversity of military forces — ethnically, religiously, politically, and sexually. In tradition-bound societies – and what society isn’t? – what is to be done when, for example, political leadership, responding to shifting social expectations, take on issues like the integration and welcoming of sexual minorities? And in an era of heightened political discourse, how tolerant may we be of dissenting opinion in the barracks, below decks, or in the wardroom, on political issues. Think: racial intolerance, white-supremacist views, ill- or unconcealed contempt for political leaders? Might civilian control of the armed forces be at risk? Realizing that much more information is classified than needs to be, what is the proper response where soldiers, civilian government employees, or members of the public flout the rules for the protection of national secrets? 

Novel issues of accountability present themselves with increasing frequency. Modern high-tech warfare presents challenges to national disciplinary and legal systems that are unlike those faced in earlier eras. Who is to blame – and liable to be punished criminally – when a drone strike hits a wedding, a funeral, or a schoolyard? Joint operations add further complications. What if one part of a military operation is necessarily reliant on personnel from another country for identification or verification of targets? 

As nation states continue to struggle with non-state entities such as ISIS that have only contempt for the law of armed conflict, will pressure increase to sweep mishaps and misconduct by one’s own forces under the rug, as if “the fog of war” meant all bets are off? Will electorates (and serving personnel) grow impatient with a persistent asymmetry in respect for law? 

Finally, will the application of human rights to military personnel and operations continue to play an increasing role, or will that impulse lose force? Especially if, as in the UK, adherence to human rights standards brings with it potentially serious financial consequences. Countries may either find themselves opting out of human rights regimes that prove to be inconvenient or unexpectedly costly or being more reluctant than they have in the past to join in theoretically deserving foreign missions of one kind or another. 

Plainly, the historic struggle for the rule of law both between and within armed forces is moving into a new battle space. What seemed tidy and appropriate half a century ago now seems contingent and debatable. National and international institutions are going to be tested repeatedly as this struggle plays out. In the process, we will learn whether the past few decades of progress reflect merely a temporary phase or whether, to borrow a phrase from Dr. Martin Luther King Jr., the arc will continue to bend in a progressive direction.

Where should drug smugglers in uniform be tried?

SNS Juan Sebastián de Elcano

Six crew members of a Spanish Navy training ship, plus the ship's civilian cook, have been charged by a military judge in connection with drug smuggling. Details here. Drug trafficking is of course a crime under Spanish civilian criminal law. It's certainly not crazy for the uniformed personnel to be tried in a military court, but why not just send them downtown for trial? A fortiori for the cook.

Independence and the duty to investigate

Two human rights organizations have appealed the decision of the Israeli Military Advocate General (MAG) to close the investigative file into certain deaths in Gaza in 2014. The appeal was submitted on October 25 to Attorney General Avichai Mandeblit. (He happens to have been the MAG from 2004 to 2011.) Details can be found here. Excerpt:

As to MAG’s examination, Attorney [Muna] Haddad stressed that the procedure does not meet the requirements of international law, namely: independence, impartiality, effectiveness, promptness and transparency: "We cannot ignore the fact that the military bodies involved in fighting are the same entities that are supposed to review and decide on the opening of an investigation into a particular event. The MAG itself plays a double role: It provides legal advice to the army before and during military operations, and at the end of the fighting, it decides whether or not to open a criminal investigation. Such a situation is a blatant violation of the requirement of independence. The present case is just one example, which gives rise to a suspicion of partiality.” "In addition, while there is ample evidence about the identities of the people who were riding on the motorcycle and the circumstances of the incident, the MAG and the military’s fact-finding assessment mechanism did not present any evidence to support their claims and did not take testimonies from any of the witnesses who do not belong to the military. This procedure also violated the principle of effectiveness and thoroughness."

Strike up the band!

Readers will perhaps agree that the tritest phrase in the book is "military justice is to justice as military music is to music," attributed to French premier Georges Clémenceau. Nonetheless, it comes to mind in connection with this report that the Italian Supreme Court of Cassation, rejecting an appeal by the prosecution, has ruled that it is not embezzlement for a colonel to use a military band without prior authorization. Decision No. 45187 (Oct. 26, 2016) is not yet available on the court's website.

But just what did the band play? Here are some possibilities:

A significant reform is proposed in Tunisia

Some 20 legislators in Tunisia have proposed a measure under which civilians would no longer be subject to trial in military court. Details of the proposed amendment to the Code of Military Procedure can be found here, en français.

Military law conference to be held in South Africa

South Africa is hosting a military law conference in Pretoria on November 1-3. (Not much notice.) The press release reads:

Before 1994 the Republic of South Africa (RSA) was isolated from participating in a number of aspects including dialogues within Africa and the world at large due to an adverse past political dispensation. This isolation also impacted on the evolution of the country's Military Law (which include Administration of Justice and Operational Law) and the comprehension of the importance of Law of Armed Conflict (LOAC) and International Humanitarian Law (IHL) during military operations. 

Following the advent of a new democratic dispensation in April 1994, South Africa was welcomed back into the international community which led to her joining a number of important regional, continental and international organisations. As a result, the country has played and continues to play an important role in bringing peace and stability in the continent. In recent years our troops were deployed in Peace Support Operations (PSO) in a number of African countries, e.g. Burundi, Democratic Republic of the Congo (DRC), Sudan, et cetera, and on humanitarian missions in Mozambique and elsewhere. 

The RSA has a vibrant Constitution and a legal framework that deal with the employment of, and discipline within, the Defence Force. The country's Military Justice System is among the best; it has been tested and continues to be tested in the courts of the land including the Constitutional Court. However, our Military Law is still not well known except to those who are involved with it. As a result its evolution is dependant solely on practitioners for there is very little involvement of the academia and other stakeholders outside the Defence Force. 

Giving effect to the Constitutional mandate that the Defence Force must be structured and managed as a disciplined military force, the Defence Legal Services Division (DLSD) was established. It is DLSD's mandate to fulfill, apply and promote this important part of the country's justice system - the Military Law. 

Sadly, as it has been said above, Military Law is unknown or well appreciated in the country except to those Military Law Practitioners that are involved in it. As a result the civil society is not involved in the evolution of this system, which is robbing the Military community of growth and insight. 

In 2014, the Military Command Council approved the hosting of an International Conference on Military Law by the SANDF.

The Conference will be held as follows:- 

Date: 1 to 3 November 2016
Venue: International Convention Center of the Council for Scientific and Industrial Research (CSIR) in Pretoria, RSA. 

The objective of the conference is to expose and bring awareness to the South African public in general and academia in particular on the importance of Military Law within a country's legal system. 

South Africa is among the leading countries in contributing military personnel and major equipment for peace missions in pursuance of its policy to promote peace and stability in the continent. The country's important role in mediation to end conflicts, has earned it a good standing, reputation and respect among the community of nations. 

As an active participant in international structures, South Africa raises the interests of the African continent and other developing countries. Since it plays a meaningful role for the success of the region and the continent, it is incumbent that it stays afloat in every spectrum possible including the development and application of Military Law. 

Furthermore here at home, the community at large; to some extent the Military community; academia and jurors alike seem not to be aware of the relevance, extent and application of Military Law. 

Therefore, there is a need for the SANDF to host this kind of a conference wherein invited foreign and local Military Law Practitioners; academia and jurors are invited to participate in deliberations on the given theme - The development of contemporary military law. 

The Conference will be opened by the Minister of Defence and Military Veterans the Honourable Minister N.N. Mapisa-Nqakula. The Key Note Speaker will be our former Chief Justice, Justice Sandile Ngcobo.

Behind the scenes

Illustrative Glass-Enclosed
Nerve Center

Ever wonder what it's like here in the glass-enclosed nerve center high above Global Military Justice Reform Plaza? Consider this: our trusty (i.e., free) audience statistics program reveals that in the last hour we've had readers in the United States, Russia, Canada, Germany, India, Netherlands, Australia, Barbados, and the Philippines.

It's especially rewarding to spot readership in a new jurisdiction, often in the wee hours, long after evening colors, when the duty section has gone ashore and the nerve center is quiet. The last one added to the list (No. 169) was Niger, just a few days ago. We're running out of jurisdictions. Nauru is among those that remain elusive. If you are headed there, please fire up your laptop or smartphone and visit the blog to help us reach No. 170.

Human rights and military operations at issue in Britain

Joshua Rozenberg

Joshua Rozenberg, the distinguished British legal commentator, has written this excellent Legal Cheek post explaining the current human rights cases arising from military operations. Excerpt:

In recent years, there has been a great deal of concern among the military and others about the encroachment of human rights onto the battlefield. I am not one of those who say the armed forces should lose their rights once they join the services or are deployed outside the UK. If anything, those who are willing to make the ultimate sacrifice deserve more rights rather than fewer. On the other hand, troops who are sent abroad in support of a foreign government need appropriate legal powers, including the power of arrest. While prisoners should have appropriate rights and be able to enforce them, it would be absurd if peacekeeping troops were required to allow dangerous terrorists to escape for fear that they might become involved in a human rights challenge.

Three big cases are pending. Watch for important rulings from the UK Supreme Court next year. 

"Lost opportunity" in Pakistan

Terrorists are also being tried through military courts which have so far sent to the gallows perhaps a couple of dozen convicts, very close to the end of their planned two-year lives. Thus, it is difficult to see what major dents these limited convictions have made against terrorism compared with actual anti-terrorism action. But their costs are evident in undermining our reputation and the mainstream judicial system, and the lost opportunity to strengthen it instead of having military courts.

Dr. Niaz Murtaza, writing here in Dawn

Why was this case tried in military court?

A Russian military court has convicted a Dagestani imam of justifying terrorism. He was sentenced to five years in prison, according to this RAPSI report. Excerpt:

Investigators claim that in February 2016, [Magomednabi] Magomedov, being an imam of “Vostochnaya” mosque, made a public speech containing statements justifying terrorist activity and calls aimed at incitement of religious hatred. 

Moreover, the defendant showed hatred towards law enforcement authorities, according to investigation.

Why couldn't the case have been tried in a civilian court?

Cruelty to animals under military law

Military justice mavens have long enjoyed pointing to "abusing a public animal" as the quintessential odd offense, right up there with dueling. Comes now the recent Manual for Courts-Martial amendments, adding important protection for pets, as summarized in this Humane Society blog post by Wayne Pacelle. The cases that led to the change are disturbing, and it's no wonder the change was made.

Then there's the Mounties

Here is a letter to the editor of the Regina Leader-Post from Stew Fettes, president of the Regina Civil Liberties Association:

The Canadian Forces is pondering the idea of those accused of military sex crimes being tried in civilian courts rather than in a court martial. 

What that means is those accused of atrocious acts will go to a public trial. If convicted, they will feel the wrath of Canadians, the embarrassment that goes along with it, fines, jail time and other penalties. 

The old paramilitary organization we call the RCMP should also switch to a civilian process. Canadian taxpayers are currently on the hook for $100 million to settle class-action lawsuits against the RCMP for decades of alleged bullying, discrimination and harassment by male RCMP members against hundreds of their female counterparts. 

In future, RCMP members accused of such acts also should stand trial in a civilian court rather than have the RCMP investigating the RCMP. Let those convicted also feel embarrassment and suffer the legal consequences. 

A public trial that treats these “public servants” in the military and RCMP like all other Canadians are treated by the rule of law would be a powerful deterrent to such behaviour.

Prompted by Mr. Fettes's letter, the Editor found this page on the Royal Canadian Mounted Police website, concerning discipline, which in turn led to this site showing scheduled disciplinary hearings. 

The Case of the Reluctant Witness

Stephen Gill

What happens when a civilian refuses to appear to testify at a military court? Carol Rosenberg of The Miami Herald tells the tale here, in the context of the Guantanamo military commissions. Hint: it involves the U.S. Marshals Service. Did we mention that the witness is a U.S. Navy Reserve officer who is a lawyer and write-in candidate for the Massachusetts State Senate?

As usual, Global Military Justice Reform contributor (and UT Law professor) Steve Vladeck has an interesting take, found here on Just Security. (Editor's note: I would spell it mishigoss, vice mishugas.)

Catalonia moves to annul Franco-era summary courts-martial

Parliament of Catalonia

The Catalan parliament has passed a bill that would annul politically-based summary courts-martial tried under Spanish dictator Francisco Franco. Details here. Excerpt:

The text proposes to "declare invalid and without legal effect all summary court-martials and the corresponding sentences instructed by the regime for political reasons". The text also contemplates that the Catalan Department of Justice "issue if requested by the accused or their relatives a certification of the annulment of the procedure and the corresponding sentence". 

“We have an outstanding debt with the people who fought and with the victims of the dictatorship", said the deputy of ‘Junts pel Sí’, Montserrat Palau. "We will not have full democracy without the ethical duty and obligation to restore the dignity and memory of those who gave their lives for democratic ideals: you cannot be democratic without being anti-Francoist”, the politician added.

* * *

One of the instruments of repression of the Franco regime were trials based on the Military Justice Code (CJM). The military courts responsible for its implementation were known as court-martials and, according to article 50 of the CJM, were composed by a President and six other members. All of them, even the prosecutor and the defence lawyers were soldiers. Legal representation was not required. 

In the Francoist court-martials the time between the reading of the charges and the celebration of the trial was shortened so that there was not enough time to collect new evidence. Depending on the gravity of the cases, the legal proceedings could be summary trials, in those situations considered of extreme seriousness, or ordinarily, which accounted for longer periods of instruction and, therefore, the provision of more time to obtain exculpatory evidence and to prepare the defence. The majority of politicians on the Republican side, such as Lluís Companys, were condemned by summary court-martials.

The courts at issue tried 78,331 people, of whom 3358 were executed. It remains to be seen if the Spanish government will go along with the Catalan measure.

Kyrgyzstan military courts under scrutiny

Debate continues in the Kyrgyzstan parliament over whether military courts should be done away with. According to this report, it's a question of money and need:

Today, the initiator of the bill Almambet Shykmamatov (Ata Meken) said that the salary of the judges at the Military Court is several times higher than wages of other servants of Themis. However, the load on the Military Court is small. 

Judges of the garrison court receive 40-48 thousand soms, the Military Court - 55-61 thousand, municipal courts - 32-35 thousand. 

"We consider the Military Court as an excess burden. It exists in Russia and USA because they are military powers. Having eliminated these structures, free judges will be sent to the busiest local courts," Almambet Shykmamatov said.

Al Bahlul: the D.C. Circuit splits on conspiracy as a military commission offense

The U.S. Court of Appeals for the District of Columbia Circuit yesterday handed down its en banc decision in Al Bahlul v. United States. Lawfare has this explainer by Helen Klein Murillo and Alex Loomis, students at Harvard Law School. The decision can be found here.

Whether conspiracy can be tried by military commission even if it is not an offense under the Law of Nations is the core issue. It should be resolved by the Supreme Court.

Spanish Constitutional Tribunal grants an appeal dealing with fundamental rights

The Spanish Constitutional Tribunal admitted an appeal against the arrest imposed by the Spanish Supreme Court on the delegate, Jose Salazar Perez, of the Unified Association of Spanish Military (AUME) in Murcia.  Jose Salazar Perez was arrested for a serious offense (falta grave) committed after asserting in an email that the delegate for women's issues of the association for that province, Maria Teresa Franco Martinez, "was complicating her life because of her associative work and Jorge Bravo (President of AUME), who was awaiting arrest for a serious offense (falta grave) for declarations about superfluous expenditures."  The appeal, a writ of amparo, prepared by Mariano Casado, of the Legal Advisor's office of AUME was presented against the Ministry of Defense, which had imposed a punishment of arrest -- deprivation of liberty for one month and three days on Jose Salazar Perez.  AUME takes the position that the disciplinary resolutions and judgments of the Central Military Tribunal and of the Military Chamber of the Spanish Supreme Court "violate the right of association, of freedom of expression and the principle of legality."  The Constitutional Tribunal granted the appeal because it agreed that the case raised transcendent constitutional issues that would permit it to clarify or change its doctrine as a consequence of the normative changes relevant to the content of fundamental rights.  AUME celebrated the Constitutional Tribunal's decision in so far as "the violation of fundamental rights is directly related to the fundamental rights of association, freedom of expression and with the principle of legality,"

United States v. Till (1945)

John Edgar Wideman

John Edgar Wideman has written "A Black and White Case" for Esquire. Available here, it's an account of -- in fact, a meditation on -- the interaction between the 1945 capital court-martial of Army Private Louis Till in Italy and the murder of his son Emmett Till a decade later in Mississippi.

2016 Military Investigation and Justice Experience Survey

The Department of Defense has announced its 2016 Military Investigation and Justice Experience Survey, according to this announcement.

Here's a startling fact: "The 2015 survey found that 77 percent of all respondents would recommend others in the military make a report if they are sexually assaulted." In other words, nearly a quarter of those who responded to last year's survey would not recommend filing a report if sexually assaulted.

Closing time in Verona?

Veneto Vox reports here on a parliamentary
controversy over whether to shut down the Verona Military Court. Opponents call the suggestion absurd and ideological and see the court as a symbol of military tradition in the region.

Calls for reform in Indonesia

The Jakarta Globe reports here on renewed calls for reform of Indonesian military justice:

Military courts have seen dozens of soldiers convicted of criminal offenses and discharged from their posts, but have also been notorious for lacking transparency. 

The military justice system is governed by the 1997 Law on Military Tribunals. Human rights activists from the Jakarta-based Indonesian Human Rights Monitor, or Imparsial, have been urging the administration of President Joko "Jokowi" Widodo to revise the law.

According to Imparsial director Al Araf, it should be made possible to charge soldiers who commit criminal offenses and to have them tried by civilian courts to meet the principle of equality before the law. 

"This matter has been neglected by the current administration. The government should understand that this reform has been mandated by the people," he told the reporters on Wednesday (19/10). 

Al Araf was referring to People's Consultative Assembly Decree No. VI of 2000, on the separation of the Indonesian Military (TNI) and the National Police, and Decree No. VII of 2000, on the roles of the military and police, both of which mandate the reform of the military justice system.

Decision of the Armed Forces Tribunal (India) on adulterous and extra-marital relations

In a decision which reflects upon the changing moral values in the society and their implication on the military, the Armed Forces Tribunal (Kolkata Bench) has set aside the termination of a Commissioned Officer of the Indian Air Force who was dismissed by the Central Government for driving a colleague to suicide due to an adulterous relationship. The termination has been converted into ‘release’ by the Tribunal. The background of the controversy can be made out from the following points of blame brought out by the Court of Inquiry:

(a) Knowing fully well that ABC is married to XYZ, had adulterous relationship with her.

(b) Failing to exercise caution and restraint by staying with ABC in her house No. 875/02, DJ Area, AFS Jodhpur in the absence of her husband XYZ during 03 Nov 12-07 Nov 12.

(c) Behaving in a manner unbecoming of an officer by maintaining extra marital/physical relationship with ABC, being himself married.

(d) Behaving in a manner unbecoming of an officer by luring ABC wife of XYZ into a relationship hereby stealing her love and affection.

The following observations of the Tribunal in the decision, which can be accessed here, assume importance in the case:

49. While not condoning extra marital relationships, we must, at the same time, reflect upon the changing mores of our society. With women joining the Armed Forces in large numbers, working closely and socialising with their male counterparts, it is unreasonable to expect that the Armed Forces would be immune to social changes in relationships between the two sexes, aided in no small measure by rapidly advancing technology. While such issues adversely impact on unit cohesion and ethos of the Services and should be rightly discouraged, the time has come when aspects such as unfortunate break ups of existing marital relationships, consensual relationships with others and infidelity should not be viewed so seriously as to lead to the dismissal or even graver punishments that the IPC and statutory Acts of the Army, Navy and Air Force provide for.

50. In the final analysis it appears that administrative action by way of dismissal of the applicant by the Government of India based on a flawed C of I was harsh especially when it is observed that the deceased seemed insistent on continuing with the relationship. It is also agreed that in these sensitive circumstances it would have been unwise and inexpedient too, to have tried the applicant by a GCM. The officer, we feel, should have been either summarily tried under Sec 86 of the Air Force Act, or censured under para 712 of the Regulations, or at best, been asked to resign his commission under the Air Force Rules 16(8) (supra) instead of being dismissed from service. This option at that point in time could have been exercised by the Air Force authorities. It is regrettable
that none of the above options were considered by the Air Force authorities and they proceeded with a single minded intent to dismiss the applicant from service expeditiously without taking into account the circumstances that led to the tragedy.

 It remains to be seen how the Union of India reacts to the decision.

More on conscientious objection in South Korea

Korea Times is running this useful report -- "Will Alternative Service Be Possible?" -- on the state of play regarding conscientious objection. "The number of those who have refused the compulsory service for religious reasons since 2006 is about 5,700, according to the ministry [of National Defense]. Most of them have been sentenced to about a year and six months in prison."

Has the appellate court preempted the need for a ruling by the Constitutional Court?

Conscientious objectors' victory in ROK

Whether South Korea should finally recognize conscientious objection is currently before the country's Constitutional Court. But that hasn't prevented an appellate court from overturning several cases involving Jehovah's Witnesses, according to this report. Excerpt:

[T]he appeals court in the southwestern city of Gwangju overturned the convictions and 18-month jail terms handed down by a lower court on two Jehovah’s Witnesses, arguing they had genuinely been motivated by religious convictions in refusing to serve. 

"Religious and personal conscience is guaranteed by the constitution and cannot be restrained by criminal punishment," Yonhap news agency quoted the court as saying. 

"The international community is recognising conscientious objectors," it said, while noting that "a consensus is shaping in our society on the need for an alternative service". 

The judges also rejected prosecutors' calls to overturn a rare not-guilty verdict on a third conscientious objector -- also a Jehovah's Witness. 

It was the first time an appeals court has ruled against the government in such cases. The timing and language of the judgement will provide a huge boost for advocates of reforming military service regulations.

Pirandello in Chandigarh

The Chandigarh Bench of India's Armed Forces Tribunal has come to a halt because it has no judicial members assigned, only two non lawyer members. The Bench's two judicial members recently retired and have not been replaced. Details here from The Times of India. Excerpt:

AFT rules say that the Centre should initiate the process of appointing members six months before a serving member retires. However, there is no news about fresh appointments as yet. 

President of AFT bar association, Chandigarh, Rajesh Sehgal says, "A defence personnel facing court martial and in custody has no other resort but to continue being in custody." President of AFT bar association says, "An officer ordered to be discharged from the forces on disciplinary grounds has no platform to challenge the order. Almost all cases are sensitive in nature. The government's apathy and insensitivity towards military persons is really shocking."

Bail (or house arrest?) in Uganda

Gen. David Sejusa of the Uganda People's Defence Force has been released on bail pending trial by court-martial. If so, how come there are troops literally camped out outside his home? Details here from The Observer. Excerpt:

When this writer visited Sejusa's residence on Wednesday morning, there were 10 army tents, five on each side of the gate outside the compound. At the gate, one bodyguard came out. When this writer asked to speak to the general, the bodyguard said it is no longer easy to see Sejusa without an appointment. 

"Things have changed these days. You must first call him and when he allows you to come, he will inform those soldiers over there," the bodyguard said, pointing to the more than 10 soldiers outside. 

Sejusa couldn't pick his calls nor respond to this writer's phone messages. Interviewed on Wednesday, Sejusa's lawyer David Mushabe confirmed more soldiers have been deployed at his client's residence.

Sentencing considerations in New Zealand courts-martial

The decision of the Court Martial Appeal Court of New Zealand in McCartin v. R. [2016] NZCMAC 2; [2016] NZHC 2133 (8 September 2016) is now available online. The following remarks on sentencing in drug cases are noteworthy:

. . . Dealing in drugs at any level, as long as there is a commercial aspect to it, will normally attract a sentence of imprisonment. There is no doubt that the present offending has that commercial overtone. In a short space of time the appellant was dealing with three types of drugs. In the first offence he initiated the offer to sell, and set a price. On another occasion he is seen sourcing cannabis in a quantity that would trigger the presumption of supply. On another occasion he agrees to supply “on tick”. It is plain others see him as a source, and the overwhelming impression is of a bottom level, middleman type dealer. That being our assessment of the facts, it cannot be said a sentence of imprisonment was either unavailable or manifestly excessive.

We agree with the Court below that general deterrence is an important consideration in the area of drug dealing, but that is because it is a principle well established in civilian law. We resist the proposition implicit in the lower Court’s decision that membership of the Armed Forces is itself always an aggravating factor or that there is a separate tariff. If the offending were wholly unconnected with the military context, then an armed forces offender should expect a similar sentence to a civilian. That said, any link between the offending and the offender’s position within the Armed Forces is likely to constitute an aggravating factor. The stronger the link, the more serious the matter may well be viewed because of the potential danger. Here the link is at the lower end. In the first transaction, an offer to sell, two recipients of the offer were also soldiers. Other than that, the offending was unconnected.

Pakistan's 21st Amendment courts -- and a "strange coincidence"

Dawn, the Pakistani newspaper, has run this excellent summary of the state of play regarding the country's 21st Amendment military courts. These courts are authorized to try civilians, contrary to prevailing human rights standards. Challenges have been rejected by the nation's courts. Excerpt:

One of the counsels appearing for convicts said that the superior courts had rejected their plea that the convicts were not provided opportunity to engage a legal practitioner of their choice and had accepted the contention of the deputy attorney general that they were provided the said opportunity, but they had declined to avail it. He said it was a strange coincidence that none of the over 100 convicts had decided to engage a private counsel.

Strange indeed. What might explain it?

Permanent military judge for Mississippi

A permanent military judge has been installed for the first time to preside over state ("Title 32") courts-martial in Mississippi. According to this announcement, "Mississippi has had military judges appointed in the past for brief periods or to preside over a particular case, but [Col. Lee] Thaggard is the first appointed to the position permanently." The report does not indicate Judge Thaggard's term of office, if any.

Court-martial urged for leakers in Pakistan

The Daily Times reports on yet another suggestion for the trial of civilians in Pakistan's courts-martial:

Pakistan Muslim League-Nawaz (PML-N) leader and former president of Islamabad Bar Association Chaudhary Ashraf Gujjar has demand for court martial of the elements responsible for releasing ‘false story’ of the National Security Council (NSC). 

In a statement issued on Sunday he said that the meeting was held in the prime minister house and leaking its fabricated version was not only aimed to defame the Pakistani armed forces but also supported India’s stance.

The 21st Amendment, which authorizes the trial of civilians by military courts, expires in January 2017. 

Conscientious objection in South Korea

The Hankyoreh has this detailed article on conscientious objection in the Republic of Korea, where the issue is once again before the Constitutional Court. Sentences in such case average 18 months. One district judge who did not follow the current jurisprudence wrote:

“All of us feel uncomfortable with these rulings. The issue could be solved by simply creating an alternative service system, but since there’s no law in place, we have to keep convicting conscientious objectors. Whatever preventive effect the punishment once had has vanished long ago. We keep convicting conscientious objectors, and more keep coming. It’s been the same for decades now. That means that the government should get involved and set up a program.”

The current situation, in which objectors are almost invariably jailed, seems unsustainable. Perhaps the Constitutional Court will change its stance on the issue. 

A new "mercy killing" case?

"Our motives were entirely humane. I'll happily go to court, I'll happily go to jail, if you think I've done wrong. But people should put themselves in my position first. Walk around in my boots, then judge me."

Ex-SAS Sgt. Colin Maclachlan, referring to the fact that he has been told he is under investigation by British authorities for having killed gravely wounded fighters on the Syrian border in 2003. Details here.

Sacking officers in Nigeria

Luke Leyman provides this Vanguard account of recent actions to retire Nigerian Army officers for cause without due process. Excerpt:

This is a serious matter because the officers as Nigerians are entitled to fair hearing as enshrined in Section 36 of the Nigerian Constitution (As Amended). The next point is why weren't the officers given fair hearing as contained in the Constitution and the Armed Forces Act? In fact, Section 117 of the Act affords officers an opportunity to elect for a court martial instead of a summary trial in writing. While the Act in Part XII clearly prescribes all offences, both minor and serious and in subsequent parts states the military trial procedure.

The op-ed notes that the retirement actions fall disproportionally heavily on officers of Southern extraction.

Sentence relief on appeal

The Air Force Reporter's latest issue has a most interesting article by Major Kevin W. Gotfredson and Captain Micah L. Smith, Sentence Relief at the Air Force Court of Criminal Appeals During the Last 10 Years. Their review of the data yields this conclusion: "On average over the 10-year period [2006-15] AFCCA granted relief in just 5 percent of cases--minor relief in 1.6 percent of cases and substantial relief in 3.4 percent of cases." They add: "On the rare occasion when sentence relief was granted, it was usually not based on factual sufficiency or sentence appropriateness." Both authors are honors law clerks at the Air Force Court.

Now you see it, now you don't

Carol Rosenberg

Another story from Guantanamo: a military judge has approved the redaction of 18% of a transcript of open-court proceedings. Details here from Guantanamo press corps dean Carol Rosenberg. Excerpt:

At issue was five hours of uncontested open-court testimony by a Colorado National Guard soldier about restrictions on using female guards in the 9/11 case. Reporters, Sept. 11 families and other members of the public heard a soldier called "Staff Sgt. Jinx" testify on a 40-second audio delay designed to let the judge or a court security officer mute the sound if anyone spilled national security secrets. 

No one ever pushed the button. But when the Pentagon released a 379-page transcript weeks later, about 18 percent of what was said was covered up by black redactions. After media organizations filed a legal motion challenging after-the-fact censorship, the security personnel re-scrubbed it and restored all but 6 percent of the 45,000-word transcript.

Egypt's busy military courts

Prof. Sahar Aziz

Texas A&M University School of Law Professor Sahar Aziz has posted this Cairo Review of Global Affairs essay about Egypt's military courts. Excerpt:

Coupled with a series of amendments to the Military Judiciary Law that counted state properties and institutions as military property, the military courts’ jurisdiction has become troublingly vast. Buildings, factories, companies, or roads owned by the government have been transformed into military spaces that strip ordinary courts of jurisdiction. The severe curtailment of due process rights and the military judiciary’s ingrained loyalty to the military means an indictment by a military court is a near guarantee of conviction, especially in contrast to the comparatively more independent civilian courts. Although Article 204 of the 2014 Constitution nominally grants independence to the military judiciary, Article 1 of the Military Judiciary Law grants an administrative entity within the Ministry of Defense the authority to regulate it. Thus, military officers serving as judges are restrained—by institutional structure and culture—from meaningful independence.

Commander-centric charging: the limits of data

Prof. Eric R. Carpenter

FIU College of Law (and former Army JAG Corps officer) Prof. Eric R. Carpenter has uploaded to SSRN a forthcoming law review article, An Empirical Look at Commander Bias in Sexual Assault Cases. His conclusion, based on a review of documents he obtained from the U.S. Army under the Freedom of Information Act:

"The public policy implication is that, at least for now, Congress does not need to remove commanders from the system. Any decision to remove commanders would instead have to be justified on normative grounds, based on evidence that commanders treat all cases (including sexual assault cases) either more leniently or more strictly compared to other jurisdictions for reasons having nothing to do with sexual assault context."

The fact that commanders are more or less lenient in sex cases (or particular kinds of sex cases) than they are in other kinds of cases would seem to be irrelevant, and therefore says nothing about whether "at least for now," Congress should "remove [them] from the system." The Army data, therefore, while interesting, do not advance the policy inquiry and Prof. Carpenter deserves credit for saying as much.

Prof. Carpenter is right to point out that whether commanders should continue to be responsible for charging decisions -- as has been the case in the U.S. since the 18th century -- extends beyond sex offenses. (Sen. Kirsten Gillibrand's proposed Military Justice Improvement Act is not confined to such offenses.) Should transfer of that power to prosecutors who are outside the chain of command turn on how its exercise by commanders compares with decisions made by civilian prosecutors (a determination that cannot be performed empirically given the sheer number of convening authorities (aggravated by frequent turnover among commanders), the even greater number of civilian jurisdictions, and the need to compare infinitely varied individual cases)? Or should it turn on other, non-empirically-testable, considerations such as whether charging decisions are inherently the work of legally-trained officials who are subject to professional standards of conduct and whether commanders' time is better spent on other matters for which they are better trained/suited? Is it an accident that so many other democratic countries, including the very one to which the U.S. system can be traced and a number that maintain effective fighting forces, have abandoned commander-centric charging?

And don't even start on the commander's power to pick the members. The charging power cannot be viewed in isolation.

Thanks to Don Rehkopf for the link to Prof. Carpenter's article, which will appear in the Berkeley Journal of Criminal Law next year.