Proposed law in Mexico could expand military role in drug war

As Deborah Bonello from Insight Crime explains, a couple of laws are currently being discussed in the Mexican Congress that could expand both the role and the powers of the Armed Forces in the drug war without mechanisms of accountability or oversight. Among other things, members of the Armed Forces would get ample discretion to detain suspects and to perform searches and seizures on individuals and institutions on cases that fall under a new and fuzzy concept of "internal security." It will be worth watching the development of these legal initiatives.

Conference Report on UCMJ amendments

The Conference Report on the National Defense Authorization Act for Fiscal Year 2017 is now available here. The Military Justice Act of 2016 is §§ 5001-5542. Also of interest: sexual harassment and assault prevention provisions for the National Oceanic and Atmospheric Administration, §§ 3541 et seq.

Gender integration in Colombia

Colombia's Constitutional Court has unanimously lifted restrictions on military jobs open to women. This Caracol Radio report (in Spanish) tells the tale.

Pardon urged for bad-paper administrative discharges

Vietnam Veterans of America has asked President Barack Obama and President-elect Donald J. Trump to pardon all post-9/11 veterans who received less-than-honorable administrative discharges. Details -- and VVA's letter -- can be found here on Task & Purpose.

Another capital case stayed in Peshawar

The Peshawar High Court has stayed another death penalty imposed by a military court under the 21st Amendment. Details here. The amendment sunsets in January unless Parliament renews the measure or makes it permanent. Any bets?

New Jammu bench for Armed Forces Tribunal

A new bench of India's Armed Forces Tribunal has been established in Jammu, according to this report in The Daily Excelsior. Excerpt:

Armed Forces Tribunal has regional branches at Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur. There was no branch of armed forces in [Jammu & Kashmir]. This means that any soldier belonging to J&K or his family member, if they wanted justice against some unjust done to them had to travel all the way to the nearest branch and make presentation before the court of law. The policy of the government has been to provide the Armed Forces Tribunal to take care of the cases of service personnel so that justice is done to them quickly. 

Good news for the armed forces personnel in J&K is that the Government has established full-fledged branch of AFT for the State. It is located in the Military Station at Sunjuwan. The full fledged branch has begun its work from 17th November. A formal function was organized for the opening of the J&K branch originally meant to be set up in Srinagar but temporarily located in Sunjuwan, Jammu. The Chief Justice of J&K High Court along with a large galaxy of judicial and military officers was present at the function. Addressing the gathering, Chief Justice said that about 425 cases have been pending with the High Court and these would be transferred to the AFT for early disposal.

Action filed in Canada over CAF sexual assaults

CTV News reports:

Members of a support group for military sexual assault survivors are launching a class-action lawsuit against the Canadian Armed Forces. 

Several members of the military sexual trauma (MST) peer-support group, called “It’s Just 700,” filed a notice of action in Ontario Superior Court on Monday. In court documents, the group alleges that the military systemically failed to prevent sexual assault and sexual harassment and protect its members. 

The group also alleges that the military discouraged victims from reporting incidents, failed to investigate ones that were reported and retaliated against armed forces members who did come forward.

Similar lawsuits in the United States have proven unsuccessful. 

The new deal with FARC

Sen. Thania Vega

The revised peace agreement with FARC is coming under criticism:

Senator Thania Vega, of the Centro Democrático party and who is the wife of Colonel Alfonso Plazas Vega, spoke in an interview with the Colombian daily El Tiempo about the military’s concerns about the new government-FARC agreement that Congress will seek to approve this week. 

The senator affirms that the new text which was agreed upon after the renegotiation between the government and the FARC in essence remains the same, and has even generated more concerns since it allows for the possibility of opening new investigations into the military. Under the current text officers could be held legally responsible for the actions of their subordinates and the military has also made allegations of unfairness and impartiality in the process for selecting judges for the trials in question, suggesting that military officers would be at a disadvantage in legal proceedings.

PanAm Post's full report can be found here. 

Misuse of military courts (still, again) in Tunisia

Military courts are resorting again and again to the same article of military law to muzzle speech. Instead of trying to silence critics, authorities should be fixing the laws adopted during more repressive times that criminalize criticism of institutions or public figures.

Amna Guellali, Tunisia Director, Human Rights Watch

Click here for HRW's report on the referral of two journalists to military court for having criticized the army

New military justice center in Tuxpan

Mexico has dedicated its new military justice center in Tuxpan, Veracruz. Details here, in Spanish. The center's establishment coincides with the institution of broad reforms in the country's military justice system.

The pen and the sword

Ex-Lieut. Luis Gonzalo Segura

Watch for a decision today from the Supreme Court of Spain in the case of Luis Gonzalo Segura, a lieutenant who was jailed for a month and dismissed for writing a novel that was critical of corruption in the Army. Details here, in Spanish.

Conscientious objection in Egypt

Middle East Eye has this interesting report on conscientious objection in Egypt. Short version: there's very little: only nine men are known to have refused compulsory military service in recent years.

Reform proposed in Taiwan

The Taipei Times reports here on a proposal that would permit persons convicted by military courts during Taiwan's martial law era to obtain review or a new trial in the civilian courts. Excerpt:

Unless certain conditions are met, current regulations deny people convicted by a military court over national security issues the right to appeal or request a retrial, which deprives people who might have been persecuted or wrongly convicted of the right to restore their reputation and demand accountability for the government’s abuse of power, the [New Power Party] said. 

Those conditions include scenarios where new evidence is presented by defendants — which would allow them to request a retrial — and when a legal interpretation is required because different courts handed down conflicting rulings — which demands an extraordinary appeal, NPP Executive Chairman Huang Kuo-chang told a news conference in Taipei.

These restrictions are outdated and unconstitutional, hampering efforts to promote transitional justice, Huang said. 

During the Martial Law era, the government controlled all information making it difficult for some people to prove their innocence, he said. 

If passed, the amendment would grant defendants the right to directly ask high courts — which have now taken over cases adjudicated by military courts — for a retrial within five years of its ratification, according to the NPP draft amendment.

Going from bad to worse: Statistics Canada makes public a survey of 43,000 soldiers

Earlier today Statistics Canada made public the results of their survey "Sexual Misconduct inthe Canadian Armed Forces, 2016" in which 43,000 members of the Canadian military participated. As reported by CBC 960 Regular Force members reported sexual assault in the past year.  The results are damning. For instance, the survey has revealed that 27.3 percent of women have suffered a sexual assault at least once over their military careers.

The survey also revealed that 79 percent of members of the Regular Forces saw, heard or personally experienced 'inappropriate sexualized behavior' over the past year. In the twelve months preceding the survey, near two (2) percent of Regular Force members reported that they had been victims of a sexual asssault in the military workplace or involving military members.

The Chief of the Defence Staff, General Jonathan Vance, addressed the issues raised during the volonteer survey during an ensuing press conference.

“Harmful sexual behaviour is a real and present threat to our institution. Those who commit such acts are betraying the values of the country they are sworn to defend. The information in this survey will give us a better understanding of the scope and nature of the problem, allowing us to target our efforts under Operation HONOUR to eliminate this behaviour.”

Why is this case headed for military court?

Here we go again. Naharnet reports:

[Lebanon's] Financial General Prosecutor Judge Ali Ibrahim referred detainee and top cellphone dealer Kamel Amhaz and two airport security personnel to First Military Investigative Judge Riad Abou Ghaida, LBCI reported on Thursday. 

LBCI said that Judge Ibrahim referred the detainees to the Military Magistrate because of the involvement of military personnel in the case. 

Amhaz and two accomplices, Issam Amhaz and Abdullah, were arrested Tuesday on charges of smuggling phones into the country.

Reports have said that Amhaz was arrested following the detention of a number of airport security personnel on charges of turning a blind eye to suitcases containing smuggled cellphones in return for bribes.

Does Lebanon have functioning civilian courts? 

Is change in the works for Indian military justice?

The Times of India reports that the Defence Ministry has agreed in principle to reforms in the country's military justice system. Excerpt:

This would mean setting up permanent courts to try cases related to military personnel and formulating a common code for all services. There is also a proposal to set up a permanent prosecution department for the forces and introduce a cadre of independent military judges rather than ad hoc juries with members who are not judicially trained.

Decision has been taken after considering the report of the defence minister's committee of experts, which was submitted in November 2015.

The service Acts of the Indian military - the Army Act and the Air Force Act - were enacted in 1950. The Navy Act came in 1957. There has been a standing demand for years to update these laws. On several occasions, the Supreme Court has asked the ministry to show restraint while exercising these archaic laws. Most of the military laws, enacted soon after Independence, are modelled on laws that the British left behind. Experts say under this system, an accused soldier doesn't get the minimum degree of decency and fair play during litigation. Punjab and Haryana high court lawyer [and Global Military Justice Reform contributor] Major Navdeep Singh, who was also a member of the defence minister's expert committee said, "It is a great that the defence minister has accepted our recommendation on military justice reform. The system needs to be recalibrated with changing times and the much cherished constitutional principle of separation of powers."

Mahavir Chakra awardee Brigadier K S Chandpuri (retd) says, "We have been following colonial rules. Then, jawans were recruited on the basis of their fitness. Today's jawan is much more educated and deserves a better judicial system."

What other democracies are critically reviewing their military justice systems right now? U.S. -- check. Canada -- check. Who else? [Please comment, and give your name. No anonymous or pseudonymous comments.]

Chile limits the scope of military jurisdiction

A few days ago, Chilean President Michelle Bachelet published a law that excludes from the military tribunals all cases where civilians are involved. Moreover, the new law also stipulates that civilian suits against members of the armed forces should be filed in civilian courts (and no longer in military courts). This is an important development in a country that, along with Cuba in the Latin American region, still had a legally wide scope of military justice despite its developments in other areas. Details can be read here (in Spanish).

Sand Creek disobedience and heroism

Image by Howling Wolf

Amid the post-election chatter, there's been some discussion of the likely response if the new President were to issue illegal orders (specifically, concerning waterboarding and other forms of torture). Consider this powerful essay by Prof. Billy J. Stratton concerning two U.S. Army officers (Capt. Silas Soule and Lieut. Joseph Cramer of the 1st Colorado) who disobeyed orders in the course of the Nov. 29, 1864 Sand Creek Massacre. Prof. Stratton writes:

These were men who rejected the violence and genocide inherent in the “conquest of the West.” They did so by personally refusing to take part in the murder of peaceful people, while ordering the men under their command to stand down. Their example breaks the conventional frontier narrative that has come to define the clash between Colonial settlers and Native peoples as one of civilization versus savagery.

The victims were members of the Arapaho and Cheyenne Tribes.

H/T to Prof. Matthew L.M. Fletcher's Turtle Talk blog for the link.

An excellent essay from India

Lt Gen (ret) H S Panag

Lt Gen (ret) H S Panag has posted this insightful essay on the Supreme Court of India's recent decision on the misuse of summary courts-martial. It is must reading for Globalistas. He concludes:

Indian jurisprudence is characterised by separation of powers and we acceded to the International [Covenant on] Civil and Political Rights in 1979 which promises an independent and impartial trial to every citizen. The decision of the SC provides a great opportunity to the military for reform – to expand its legal cadre and adjust its practices with the thorough fairness that is expected of it. 

It has been my experience both in service and as a member of the Armed Forces Tribunal, that while conducting majority of the SCMs, existing procedures, as given in the Army Act 1950, were given short shrift leading to miscarriage of justice. The higher headquarters rarely intervened to correct the same in the "interests of the organisation". More often than not, the proceedings were set aside by High Courts and the Armed Forces Tribunal. The provision of SCM should be used as an exception and not as a rule and the reasons for doing so should be on record. The Army Act 1950 should be suitably amended and further detailed guidelines should be issued by the Adjutant General's Branch, Army Headquarters.

The Delhi High Court had once opined that “in order to obtain discipline and obedience, it is essential that the Armed Forces personnel are dealt with an innate fairness”. The Supreme Court had recorded that “fair play and justice cannot always be sacrificed at the altar of military discipline”. These wise words should forever ring true, and the Army, being the beacon of rectitude, must go out of its way to ensure that it spurns rigidity and rather imbibes a system worth emulation by other institutions in every sense of the word.

H/T to Global Military Justice Reform contributor Maj (ret) Navdeep Singh for the link.

Best wishes for the holiday

Pakistan's 21st amendment courts -- a limit finally appears

With the 21st amendment military courts about to sunset (in January), unless Parliament acts to extend them, an interesting development has occurred. Three cases that had been sent to these courts have been sent back (although they will still wind up in other military courts, seemingly). According to this account:

The counsel for [Naeem] Sajid submitted that the custody of his client, facing charges of possession of an illegal weapon as well as charges levelled against him under the customs act, was shifted to the central prison by the military authorities and he was granted bail by the trial court. 

He said that despite the court order for the release of his client on bail, he was not being released by the jail authorities. 

The defence counsel contended that an accused could not be tried twice for the same offence, and requested the court to order the release of the detainee. 

In their comments on the petition, central jail officials said the custody of three co-accused, Naeem Sajid, Sultan Qamar Siddiqui and Hussain Umar Siddiqui, who had earlier been sent to military authorities to stand trial in a military court, was remanded back as they could not be tried by the military court because the requisite nexus of their alleged offences based on religion or sect was not established to try them under the Pakistan Army Act. 

They said the military authorities also requested a speedy trial under the anti-terrorism law. 

It was submitted that the chief justice of the SHC accepted the request made by the assistant judge advocate general, 5 corps, and the three men’s trial was transferred to the relevant ATC from where it was sent to special military court for speedy disposal in accordance with the law.

Emphasis added. 

When it rains it pours

In the wake of the rash of suicides which has taken place earlier this year at the Royal Military College, the Canadian military is now also coming to grips with the increasing number of suicides among returning Afghanistan veterans. In an editorial published in this morning edition of the Globe and Mail, “Military suicides:Time to help the soldiers who helped us” the newspaper  reports on   a new study “Suicide Mortality Report for 2016”.. The report was released by Brigadier-General Hugh MacKay, the Canadian Forces Surgeon General. It makes a direct link between  suicide and the fact of being deployed on dangerous missions. This is hardly surprising, however.

 “there is strong evidence that the mission in Afghanistan has had a powerful impact on the mental health of an important minority of personnel who deployed in support of it.”

However, what is astonishing is that it took the Canadian military this long to arrive at that conclusion particularly since the suicide rate of Regular Force males is now  32 per 100,000 which is almost double the national rate for males. Yet, the authors of the military suicide-report are calling for more study to 'better understand what deployment (and hopefully post-deployment as well as post-release) factors  may be contributing to soldiers taking their own lives."  That may be useful in the long run. However, to use an old adage this may be “too little too late.”   Real action is required now. As noted in the Globe’s Editorial:

“Soldiers who defend Canada in battle deserve to enjoy the peace they helped preserve when they return home. If more money and resources are required, Ottawa should be quick to make them available.”

Canada should follow the United Kingdom's lead by ensuring that each time a CAF member suffers a sudden (non-combat) death in Canada, whether connected to a military installation or not, that such matter be investigated by a Coroner through the medium of an inquest. For the benefit of the deceased’s family and civil society as a whole, such inquest would ensure that there is a sufficient element of public scrutiny and that it be conducted by an independent tribunal in their search for answers to prevent or reduced the number of suicides. This is presently not the case.

Indeed, such transparency is simply not present when the military conducts its own internal in camera Board of Inquiry (BOI). BOIs are internal [private] investigations and, as such, the public and the media are almost always excluded.  See para 30 of Gordon v. Canada (Minister ofNational Defence), [2005] FC 335 which states that a BOI is not carrying any judicial or quasi-judicial functions;  according to the Court, it is, in essence , a private investigation. Given the current suicide rate, it is clear that internal, private investigations conducted by and for the military will not, repeat not, address this issue in a satisfactory manner. 

Mefloquine and the Canadian military: a problem that won't go away

The Canadian media continues to provides much coverage to the 'Mefloquine' issue.

See Toronto Star: "Risky anti-malerial drug given to thousands of Canadian veterans."

Parliamentarians are now asking that a scientific study into the effects of the antimalarial drug known as Mefloquine that some veterans say in has left them with psychiatric problems and that they blame the violence that erupted during the early 1990s mission to Somalia.

See article in the Globe and Mail published on Tuesday, November 22, 2016.

"We’re about to send out troops to [Africa], and they will be required to take anti-malarial drugs . . . I don’t understand why Health Canada can’t really take a close look at it and do the kind of responsible studying that the anecdotal information suggests should happen.”

Closing arguments in Azaria case

“I have found no precedent for sanctioning the shooting of someone who has already been shot,” said [prosecutor Nadav] Weissman. “I have found no precedent for any court in Israel or in the world to sanction firing to the head without need. The accused is asking to establish a new precedent, a new law - the Azariya law. I ask your honors to establish that the accused has lied, has changed his version of events, and has falsely accused IDF officers.”

From the  prosecution's closing argument

 in the case of Sgt. Elor Azaria

Class action lawsuit against the Canadian military claiming systemic gender and sexual orientation-based discrimination

According to a proposed Class Action suit filed in the Nova Scotia Supreme Court, the Canadian Armed Forces is rife with sexual misconduct and harassment of women. Counsel for the plaintiff notes: "Sexual misconduct and harassment is a deep-rooted problem in [the] Canadian military culture.. . . This frequent misconduct is part of a troubling and deeply embedded culture that female members have been forced to endure. It’s time to step back, acknowledge how wrong it is, and take a stand against it".

The claim alleges that the Attorney General of Canada is vicariously liable for the alleged sexual misconduct. 

In another report, an Armed Forces captain tells of her history of sexual assaults which commences during her basic recruit training.  She has to relive the same treatment four years ago when again she was assaulted. This time she stepped forward reporting the assault to the authorities.

Suspended sentences in PNG mutiny cases

Twelve PNGDF soldiers who were convicted of mutiny have received suspended sentences. Details here. Excerpt:

The National reports that on Saturday the Defence Force judge, Justice Panuel Mogish, sentenced the ranking officer to four years in prison and the rest to three. 

However, he suspended their sentences and put them on a good behavior bond for two years. 

He also ordered each soldier to pay a $US 300 dollar fine. 

The Judge recommended the soldiers be given the opportunity to leave the Defence Force rather than being dishonourably discharged.

U.S. Army officer's challenge to war on ISIS rejected in Washington

A federal district judge in Washington has rejected an Army junior officer's challenge to military operations against ISIS, ruling that he lacks standing and that the issue is not justiciable. Charlie Savage's report for The New York Times, with a link to Judge Colleen Kollar-Kotelly's opinion, can be found here. The decision is appealable to the U.S. Court of Appeals for the District of Columbia Circuit.

Parliamentarian's case goes to Uganda Constitutional Court

A Member of Parliament has invoked the jurisdiction of Uganda's Constitutional Court to challenge the exercise of court-martial jurisdiction over civilians like him. Details here.

Kyrgyzstan abolishes military courts

By an 85-27 vote, the Kyrgyzstan Parliament has abolished military courts. A few details can be found here.

Judge Heller to be elevated

Col. Maya Heller, IDF

Judge Col. Maya Heller, who is presiding over the court-martial of Sgt. Elor Azaria, has been selected to serve on the Military Court of Appeals. Most recently, according to this report in Haaretz, defense counsel have suggested that she is biased against Sgt. Azaria.

UK Government to compel COs to report offences to the Service Police

The Daily Telegraph reports that the UK Government will legislate so that 'officers who cover up rape and sexual assault will be prosecuted'. Rather oddly the article also suggests that legislation will add sexual assault, voyeurism and exposure to the Armed Forces Act 2006. All three offences are offences under the Act by virtue of section 42. All this comes following a series of embarrassing inquests into deaths during training at Deepcut Barracks that have revealed a culture of bullying and sexual assault in the early 1990s and the trial of two Royal Military Policemen alleged to have raped a colleague who later committed suicide. 

It will be interesting to see how HMG ensures such allegations are reported whilst minimising the curtailment of the COs independence. When matters are reported section 42 of the Act ensures prosecutions can follow after review by the independent Service Prosecution Authority. 

Read the article here and details of the Deepcut inquests here. The case involving the RMP can be found here.

Military and transparency

Readers might be interested in the following post on my blog:

Truth never damages a cause that is just, so said Mahatma Gandhi, famously.

In the age of transparency, this rings truer today. It is said that those who have nothing to hide, those who embrace truth, need not be afraid of inquisitive eyes. To clarify, I am referring to the inquisitive eye of the public here. 

The above thought came rushing to me once again when I saw in today’s paper a report on the Central Information Commission’s orders to the Army to provide documents related to the court martial of five soldiers and a related Court of Inquiry to an applicant under the Right to Information Act. The documents were being refused to the said applicant. 

Brings me back to the same question- why hold back when there is nothing to hide?

As soon as the Army, or for that matter, any organisation holds back information, or attempts to block information, the natural reaction of the public is negative- ‘there must be something that they are trying to hide!’ Why should we give this kind of an impression to the public at large? All actions taken by any government organisation are official in nature and law provides adequate protection to sever the parts of such information which might fall within the exceptions provided by the law itself. But those exceptions are to be invoked judiciously in the right spirit behind the said provisions and not by way of artificial hair-splitting. 

Though I am not aware of the facts of this case, and it also seems to be an old issue, it is felt that while the Services Headquarters of the three services are quite open and transparent about their functioning, there is inertia by lower formations related to provisioning of legal documents such as Court of Inquiry proceedings, especially opinion and findings. Often Rule 184 of the Army Rules is cited out of context to refuse such documents. The said rule actually only talks of provisioning statements and documents of a Court of Inquiry, it does not contain any negative stipulation for notproviding the opinion and findings. Moreover, the said rule must yield to Section 22 of the RTI Act which overrides all other laws, including the Official Secrets Act. But it must even otherwise be realized by us that if an action is taken against a person based on the opinion and findings of a Court of Inquiry, then the person most definitely is entitled to the information based on which the action was taken against him or her. More importantly, such information may be required by a Court of law to apply its judicial mind to the proposition as to what went in the mind of an authority before taking any such action. The Constitutional Courts have emphasized time and again that a person needs to be informed of all material and findings against him in order to defend himself/herself, and this is not a luxury or a favour but a cardinal feature of any society governed by the rule of law. The fact that Courts of Inquiry are also open to judicial review was well established by the Supreme Court in Sanjay Jethi’s case. Further that opinions and findings of such inquiries (enquiries) are also to be supplied was well ruled by the Delhi High Court in Col PP Singh’s case. It is the substantive law of the Parliament and the law declared by Constitutional Courts that has to prevail on us, not personal opinions or legal opinions recorded on file. Reminds me again of Veena Kohli’s case wherein death related documents to a mother of an officer who died in Jammu & Kashmir were refused to her under the RTI Act on the pretext that the said Act is not applicable to the State of Jammu & Kashmir, as if the Indian Army based in J&K is a State force and not a Central force! When the Central Information Commission ruled in favour of the mother, the decision was challenged by the system, probably not out of the need for it but out of ego, in the Delhi High Court, which of course ruled in favour of the mother. 

Without taking any particular position, I only wish to say here that the Defence Services are amongst the cleanest institutions in our country, and holding back of such information leads to adverse conclusions and bad press also resulting in embarrassment which does not reflect upon the actual state of an institution which the nation is proud of. The top brass of the defence services is all for transparency, even the RTI Cells at the headquarters of the three defence services are doing an impeccable and admirable job, it is just hoped that the same spirit percolates down to each officer in every military establishment. 

Mefloquine and PTSD

The issue of "Mefloquine" - medication used to prevent or treat malaria - with its side effects that include possibly long-term mental health problems, anxiety and other serious effects such as abnormal and violent behavior surfaced during the Commission of Inquiry into the Deployment of Canadian Forces to Somalia.  In its 1997 Report titled "Dishonoured Legacy: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia" the Commission of Inquiry noted that

"It is clear that mefloquine caused some minor problems in Somalia, as might be expected from a review of the medical literature. We learned of several incidents of gastro-intestinal upset, vivid dreams, nightmares referred to by soldiers as 'meflomares', inability to sleep following the use of the drug.. . . However, we are not able to reach a final conclusion on this issue [and we can] offer only general observations about the decision to prescribe mefloquine to personnel deployed to Somalia."

However, the Commission was not able to 'explore fully the possible impact of the mefloquine" because it ran out of time after the government of the day decided to truncate the mandate of the inquiry.

However the issue has not gone away primarily because the Canadian military has continued to use mefloquine during the deployment of soldiers to Afghanistan.

1.   For instance, in April 2012, the Canadian Broadcasting Corporation (CBC) reported on the experiences of several Afghanistan veterans. Chronicling the use of mefloquine in Canada and the US military,  the CBC is critical of the continued use of this drug by Canadian Armed Forces. See:  "Canada's military apparently unconcerned over anti-malarial drug effects"

2.  In a series of articles published this November by the Globe and Mail newspaper, the mefloquine issue has resurfaced with renewed vigor.  On Monday, November 14, 2016 the Globe and Mail examined "The Malaria Drug's psychotic effect on Troops' and reported  that Canadian veterans say that the anti-malarial drug prescribed in Somalia has ruined lives. The following day, the daily revealed that Defence Minister Harjit Sajjan is defending the military's continued use of the drug noting that troops can make their own informed decisions about whether to take it or not. [As an aside, I doubt very much that a soldier is given such an option.] Yesterday, the Globe and Mail reported that the "Canadian Military to reassess the use of controversial anti-malaria drug". On Thursday, November 17, 2015 the Globe and Mail quotes the Honorable Gilles Létourneau, the former chair of the Somalia Inquiry who agrees that it would be worthwhile to now take a hard look at the dangers posed by the drug, which is still being offered to Canadian Forces members.

"Surely, run a survey of existing use of mefloquine with the Armed Forces and see whether the problems that were raised 20 years ago are still there." 

Most obviously the Mefloquine issue will not go away particularly following the troublesome commentary made by a Dr. Passey, a medical expert, published in this morning's edition of the Globe and Mail:

"One of the worse problems with mefloquine toxicity is that its symptoms mimic those of PTSD, and that can make it difficult to diagnose. . . there's a whole veteran population out there that may not have been identified properly as far as what's causing their condition. " [My emphasis]

New AFT judicial members cleared

Under pressure from the Supreme Court of India, the government has cleared new judicial members for appointment to the Armed Forces Tribunal. According to the AFT bar, the tribunal's work has come to a halt because of unfilled judicial vacancies. Details here. Excerpt:

The [bar association's] letter to the Chief Justice stated that there is a total breakdown of the system of administration of justice for defence personnel and their families, not only because of not having enough judicial members but also because of arbitrary provisions of the AFT Act, 2007.

The bar in its letter alleged that the Centre has been claiming that there are not enough applicants for the posts but appointments already approved by the selection committee have not been notified.

The letter has raised some long-standing disputes as well. This includes the demand for taking AFT out of the Union ministry of defence (MoD) given that most cases are against the ministry, no judicial review for AFT orders making it the first and last court for litigants and the tribunal not having the power to enforce its orders.

Allowing so many vacancies to arise on the AFT suggests that the government does not consider the review of military cases a priority. 

DoD v. ICC Prosecutor

The U.S. has responded to the ICC Prosecutor's announcement that there is reason to believe U.S. personnel committed war crimes, including torture, in Afghanistan:

"We have a robust system, both nationally within our criminal justice system, and within the U.S. military with our Uniform Code of Military Justice to be able to investigate and hold accountable our people," [Pentagon spokesman Capt. Jeff] Davis said. "And those standards more than meet international standards."

Really? Does the U.S. military justice system comport with human rights standards? Consider the analysis linked to here (to which the U.S. government never responded). One might start with the fact that the charging power is held by commanders, not lawyers independent of the chain of command.

ICC Prosecutor: reason to believe U.S. committed war crimes (including torture) in Afghanistan

The New York Times reports that the prosecutor of the International Criminal Court has concluded that there is a "reasonable basis to believe" the United States committed war crimes, including torture, in Afghanistan. Excerpt:

The international prosecutor has been considering whether to begin a full-fledged investigation into potential war crimes in Afghanistan for years. In Monday’s announcement, the prosecutor, Fatou Bensouda, signaled that a full investigation was likely. 

Still, the prosecutor did not announce a final decision on an investigation, which would have to be approved by judges, and it is unlikely that the United States will cooperate. 

The United States is not a party to the court, which was established to prosecute war crimes, crimes against humanity and genocide. But Afghanistan is a member of the court, so allegations of crimes committed in its territory, no matter the nationality of the perpetrators, are widely considered to be fair game.

Permyakov boycotts appeal

Valeriy Permyakov, the Russian soldier convicted by Armenia of the murder of several local civilians, is refusing to attend the Court of Appeals' hearings in his case. He was also convicted of military offenses in a Russian court-martial. Details here, in French.

Who should conduct Canada's review of its military justice system?

In October 2016, the Judge Advocate General announced that he was launching a public consultation exercise as part of a comprehensive review of the "court martial system."

The Honorable Gilles Létourneau and Professor Michel W. Drapeau have serious reservations about having the military lead this consultation process. It is akin, they wrote, to having bankers re-tool the banking legislation. In a democracy that job belongs to 'elected officials', namely legislators.

It is Parliament NOT the military that needs to embark upon a review of the scope of jurisdiction of the Canadian penal military justice system and the resulting modus operandi of the court martial system. Therefore, they write, only soft reforms acceptable and compatible with the military mind and the views of the chain of command are likely to result from this in-house JAG self-initiated review of the military justice system.

These in-house reforms would have no significant effect as they would permit the JAG to continue lording over this broken military justice system. See Opinion Piece; "It's time for a civilian review of the military justice system" published today in Hill Times (the Parliamentary Precinct newspaper).

Gambia court-martial appeal proceeds, with new issues permitted

The Court of Appeal of Gambia, before which a capital treason and mutiny court-martial appeal is pending, has allowed the appellants' counsel to advance additional issues now that the government has provided them with the 700-page record of trial. The court overruled an objection by the Director of Public Prosecutions on this issue. Details here.

Relatives of the victims want further investigation because they do not agree that Permyakov acted alone. Additionally, they seek to overturn the trial judge's rejection of their request that Russia be ordered to pay compensation,

Taking the PLA to court

Hotel of Chengdu Military District

The Chinese government announced with great fanfare in March, 2016 that the Chinese military and armed police would stop providing all paid services within three years.The Central Military Commission issued a document to implement the government decision. The full text of the document (Notice on the military and armed police forces stopping entirely compensated services)（关于军队和武警部队全面停止有偿服务活动的通知) has not been made public, only summaries. According to the summaries, contracts between the military and local entities should be terminated immediately if they could be negotiated, and new contracts or renewal of existing ones were not allowed. Few outside China could imagine that this announcement would lead to civilian businesses and individuals taking the PLA to court.

According to scattered reports in the official press (and searches of a Chinese court judgment database), quite a few of these cases have ended up in the civilian courts, leading military officers charged with implementing the CMC decision to meet with local court leaders. A quick search reveals many of the cases are leases, with military district real estate bureaus acting as lessors.

A local Jiangsu court reported that it had dealt with 36 cases, with about 2/3 resolved through mediation, by giving the military priority in taking the case, serving process, scheduling court hearings, mediation, and enforcement. It appears from the another press report that the military parties are relying on the principle of changed circumstances to terminate these leases and other contracts. It is unclear whether more comprehensive statistics on the total number of cases will be made available at year's end.

A miscue in Paraguay

President Horacio Cartes of Paraguay has designated another officer to head the military court, his original nominee having been found disqualified under the military personnel law. Details here, in Spanish.

Veterans Day 2016

2016 Remembrance Day - Ottawa, Canada

2016 Remembrance Day marks the centennial of the Battle of Beaumont-Hamel which is remembered as a "tragic, et defining moment in the history of Newfoundland and Labrador."

During the First World War,  Newfoundland (then a colony of then Dominion of the United Kingdom became the 10th province of the Canadian federation on March 31, 1949) sent a regiment to France. It first saw battle during the Somme offensive. On June 24, the Allied powers bombarded the German front lines with artillery. The barrage lasted a week, and was intended to weaken enemy defence in advance of a July 1 ground attack. The battleground was a 34-kilometre ribbon of land near the river Somme. 

On June 30, the Newfoundland Regiment departed Louvencourt and marched three hours to its trenches on the battlefield. Its objective was to seize control of the German trenches near the French village of Beaumont-Hamel. The first wave of Allied troops left their trenches at 7:30 and was greeted by a devastating barrage of enemy artillery and machine gun fire.  At 08:45 the Newfoundland Regiment was ordered to advance ‘as soon as possible’. At 09:45 its Commanding Officer reported that the attack had failed: “The Germans actually mowed us down like sheep”.  The Regiment had been almost wiped out. 

When the roll call was taken, only 68 men answered their names – 324 were killed, or missing and presumed dead, and 386 were wounded.  Today the Premier of Newfoundland and Labrador, Dwight Ball, will be in Ottawa on Remembrance Day to commemorate the Battle of Beaumont-Hamel and to lay wreaths with other dignitaries at the National War Memorial. He will also attend a viewing of the “Trail of the Caribou,” a documentary on the Battle of Beaumont-Hamel.

Education and discussions about military law are good

Practitioners of military law in South Africa gathered in Pretoria alongside colleagues from other countries for the first international conference on military law in the country.

The conference theme of “contemporary military law” was explored with sub-themes relating to international military law, human rights law, operational law and administration of military justice.

The conference was officially opened by SA National Defence Force Chief, General Solly Shoke. In his opening address he welcomed the opportunity provided by the conference for South African military lawyers to benchmark local approaches with that of other armed forces. He also expressed the wish for the conference to provide a basis for evaluating whether any amendments to military and other legislation may be necessary to empower commanders to instil and maintain military discipline.

In a side-bar, the article references problems in military law due to: "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. . . . “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."

Move on -- there's a lot on the agenda

Regardless of who was elected to be the new president of the United States, the following is going to be on the agenda.

Afghanistan has been an afterthought in the campaign but the next president will have to deal with an international inquiry into war crimes in Afghanistan that could involve U.S. troops.

State Department spokesman John Kirby last week expressed U.S. concerns that the International Criminal Court would soon initiate an investigation of war crimes and crimes against humanity in Afghanistan that could target U.S. personnel.

So reports Richard Sisk in a short piece at Military.com.

What were the candidates thinking?

"Donald Trump and Hillary Clinton have said next to nothing about how they would handle the war in Afghanistan," the Associated Press reported. "Neither of the candidates' websites, which usually go into detail on policy matters, have a mention of the U.S. military presence in Afghanistan or what to do about it."

The Supreme Court of India on old Naval reservists

The Indian Navy tried its luck in the Supreme Court by filing an appeal praying for setting aside of pension granted to a Naval reservist by an Armed Forces Tribunal. But in the bargain, as if by way of divine intervention, many other similarly placed reservists have been granted the much needed relief by the Apex Court.

I have explained the issue in detail on my blog in the following words:

“This is a case wherein the Indian Navy tried its hand in enthusiastically getting the reservist pension granted by the Chennai Bench of the Armed Forces Tribunal to an old sailor set aside by the Supreme Court but ended up with an order for grant of ‘Special Pension’ in favour of all similarly placed personnel, irrespective of whether they have approached Courts or not.

The Navy had a system of 10 years active service followed by 10 years in the fleet reserve similar to the colour + reserve scheme of the Army & the Air Force. Reservist Pension was admissible to such personnel after 15 years of combined active and reserve service. In the year 1976 however, the system of placement on reserve fleet was discontinued and all those who were on rolls (even those who had joined before 1976) were released after 10 years thereby resulting in non-grant of pension to some of such sailors.

The Chennai Bench of the Armed Forces Tribunal however held in the case of one such sailor that such sailors were entitled to reservist pension since it was not these personnel who had opted out but it was the Navy which discharged them on change of policy. But on the other hand, the Principal Bench of the Tribunal dismissed such claims by similarly placed sailors. The claim for ‘Special Pension’ which is granted to personnel with 10 years of service who are released on ‘reduction in establishment’ was also not accepted for the affected sailors.

Thereafter while the Navy challenged the order of the Chennai Bench of the Tribunal against the grant of Reservist Pension, the sailors led by TS Das whose cases were dismissed by the Principal Bench, also challenged the denial of pension.

The Supreme Court in a detailed order has agreed that such sailors are not entitled to Reservist Pension essentially for the reason that even under the erstwhile system, placement on fleet reserve was not mandatory and was only to be effectuated ‘if required’. However, on threadbare examination of the issue, the Supreme Court has reached the conclusion that discontinuing the system of active-reserve service amounted to reduction of establishment and such personnel would definitely be entitled to ‘Special Pension’. Consequently, the Court has ordered that Special Pension be released to all such affected sailors, not just limited to those who had filed cases before the Tribunal. 

One ideally would have expected the top Naval brass to come to the rescue of such sailors, some in extreme old age, who had been denied reservist pension due to sudden change in policy by convincing the Government to come up with a scheme to help such sailors tide over difficulties in the twilight of their lives, but instead, they chose to fight tooth and nail against benefits granted to one such sailor. It can also be said with due certainty that the Navy would have not even informed the Supreme Court that a Committee of Experts constituted by the Raksha Mantri (Defence Minister) had already rendered a positive recommendation for such personnel as far as their pension is concerned. 

But then, divine justice by the Court wherein not just the litigants, but all such affected sailors would now have a comparatively comfortable life in the few years that they are left with. One can only hope that the few such personnel who are now living are identified at the earliest by the Navy and the decision given effect to without posing any further hyper-technical impediments.”

Government submission in Azaria case

The prosecutor has made a final submission in the case of IDF noncom Elor Azaria. According to this Ynet account:

In his final notes, the prosecutor claims dozens of times that Sgt. Azaria, who shot dead a seriously wounded terrorist, lied during his testimony, made blatant false accusations against his commander, changed his version of events five times and "made up fictitious details."

This Azaria had done on top of the rest of the evidence in the case, including a video filmed by a B'Tselem cameraman documenting the incident.

Another county heard from

Welcome aboard to this morning's reader from Guinea: you make No. 171 in our list of blog-following jurisdictions.

Still waiting for Nauru.

Speaking of counting, today is Election Day in the United States. Global Military Justice Reform urges you to vote.