Best wishes for 2017

Constitutional changes move ahead in Turkey

The Constitutional Committee of the Turkish Parliament has approved a bill that would make a host of important changes in the country's governance. Of note:

"Military courts cannot be set up apart from discipline courts. However, military courts assigned to try soldiers and military officers committing crimes while on duty in time of war."

Getting real

Maj (R) Navdeep Singh

Global Military Justice Reform contributor Major (Ret) Navdeep Singh has written this powerful and constructive end-of-year blog post about some deep cultural issues within the Indian military world. The entire post is important reading; here's an excerpt:

A few days ago, at an official gathering where I had a longish conversation with some highly competent officers of the defence services, certain issues that I speak of above, stuck me hard. One, that there is an extreme lack of understanding, knowledge and acknowledgement of contribution of other professions or services. Two, that the basic insight regarding our national institutions is lacking. Three, that there is some kind of a feeling as if only the military is serving the nation while all other professions are lax, dishonest or both. Four, that there is strong resistance to change and things have come to such a pass that attempts to impress are made not by the depth of learning or knowledge but by scratching the surface and flowery English.

How many of these observations describe conditions in your country? 

A fiscal objection to military courts

Sen. Siraj ul Haq

A member of the Senate of Pakistan has raised a cogent objection to maintaining parallel civil and military courts: cost. Here is an excerpt from the Express Tribune account:

Jamaat-e-Islami chief Sirajul Haq has said the military courts were setup for a limited period and the country cannot afford a parallel judicial system for an indefinite period.

Addressing a press conference at Mansoora on Friday, he said if the military courts were the solution for everything, all civil courts should be closed.

Big trouble in Chilean Navy

Assume a naval vessel, a gender-integrated crew, a hidden camera, and the Internet. Stir briskly, then stand back. Details here.

Clothes make the man

Now for something completely different. A man has been arrested in Côte d'Ivoire for impersonating a military magistrate. Read all about it (with photo) here, en français.

Summary retirement of Nigerian officers

In 2016 Nigeria involuntarily retired 38 senior officers for cause (partisanship and involvement in a procurement scandal). They have appealed the action to the country's president; some have gone to court. The question is whether they were afforded due process in these adverse actions. The officers appear to claim that they are entitled to a trial at which the evidence can be examined. This opinion piece in Vanguard is unclear about what process they did get -- was it simply notice-and-comment decision making, or even less? Excerpt:

Enquiries revealed that Major Generals SD Aliyu, MY Ibrahim, FO Alli and Wiwa appeared before the presidential arms panel, while Major General Atewe is in court with the EFCC over embezzled funds. Others who appeared before the arms panel included Brigadier Generals Onoyiveta, Onibasa, Mormoni-Bashir and Abdulsalam. They were all cleared and not indicted, if indicted they were entitled to appear before a court martial for trial. The panel does not have conclusory powers to assign guilt under military law. It is a fact finding body preparatory to a court martial. 

The following retired officers were not indicted, queried, charged or convicted via any court martials, they include Major Generals Ijioma, Ejemai, Ilo and Ude. Others are Brigadier Generals Bello, Koko Essien, Lawson, Bright Fibionuma and Agachi. The list also includes Colonels Ekpenyong, Kayode, DR Hassan, Suleiman, Nwankwo, Minimah and Ukoha. Others not queried or even charged are Lieutenant Colonels AS Mohammed, A Mohammed, Dazang, Arigbe, Adimoha, Baba-Ochamkpa, Egemole, Amadi, Oladuntoye, Enemchukwu and Major Williams. That is 27 senior officers summarily retired without being accused, charged or found guilty of committing an offence. 

Is this how things are currently done in [Tukur Yusuf] Buratai’s Army? What manner of impunity is this? I thought we had a professional army where the arbitrariness of yesteryears was consigned to the dustbin of history! Doesn’t a man deserve to know his offence, if indeed he committed any? This is why the retirements don’t make sense and don’t add up.

Where should this case be tried?

Tempo, an Indonesian news outlet, reports here on a jurisdictional question arising from a sting operation that revealed large-scale corruption in the Maritime Security Agency. One possibility is to have military and civilian authorities conduct a joint investigation. Excerpt:

This joint investigation team would examine the facts and proposes which active military personnel will be tried in civil courts alongside civilian suspects, rather than in a military court. The reason is very clear: the alleged corruption was against the public interest, not the interests of the military. This type of joint trial was organized by the Attorney General and the TNI [Indonesian military] following the corruption case related to the procurement of Mi-17 helicopters that caused losses to the state totaling Rp29 billion. 

If the TNI insists the case must be heard in a military court, there are a number of conditions. One is that the defense minister with the agreement of the justice and human rights minister decides that the case should be heard by a military court. Without this approval, the KPK [Corruption Eradication Commission] should not hand the case over to the military court. 

So far, cases of corruption within the TNI seem to have escaped legal action, or have simply been covered up. More than a few cases have ground to a halt because of lack of evidence. For example, this happened when the Attorney General's office and the TNI established a joint team to investigate alleged corruption involving senior TNI officers. The apparent involvement of these personnel must not be decided by a military court. If this happened, it would not only be strange, it would also make it more difficult for the KPK to uncover all the facts in this bribery scandal.

Fancy footwork

Fred Astaire

An article from The News International reveals the game plan that seems to be taking shape in connection with the Jan. 7, 2017 sunset of the 21st Amendment: neither chamber of the Pakistani legislature will be in session at expiry. So bridge the gap between the sunsetting and the introduction of replacement legislation by a presidential ordinance.

(The thing about the 21st Amendment that has always seemed odd is how a measure that purports to have constitutional dignity could have been enacted with only a two-year life span in the first place.)

We'll try to keep on top of this unfolding tale of fancy legislative footwork.

The Pakistani Senate objects

The Pakistani Senate Secretariat has issued a remarkable statement faulting parts of the media for giving the impression that the legislature had waited until the last moment to deal with the scheduled expiration of the 21st Amendment, which authorizes military courts to try civilians. Here is the Express Tribune's account. Have a look and ask yourself if you think it answers the mail. Is it an effort to shift blame to the National Assembly?

The military courts amendment expires in 9 days, but the text of the responsive legislation appears not to be available.

Annual Report

As we wrap up 2016, it's time to run the numbers here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. Once again they are very encouraging. The blog went live on Jan. 12, 2014. In less than three years we have had, as of this evening, 3189 posts and 461 comments, with over 350,000 hits from readers in a whopping 172 jurisdictions.

Thanks to you all -- readers [tell your friends], commenters [keep it up and don't forget to use your real names], and our global polyglot posse of contributors [merci, gracias, etc.] -- for making this blog possible. To paraphrase what Daniel Webster said of his alma mater in 1818 in The Dartmouth College Case, "it's a small blog, and yet there are those who love it."

Happy New Year.

Colombia-FARC amnesty legislation, phase 1

Pres. Juan Manuel Santos

STRATFOR has circulated this report on the amnesty legislation passed by the Colombian congress and pending presidential action:

Colombia is processing a peace deal quickly. On Dec. 28, the country's lower house and senate approved a law that would grant amnesty for members of the Revolutionary Armed Forces of Colombia (FARC) not accused of major crimes. The amnesty would also extend to military personnel and civilians involved in the decadeslong armed conflict. President Juan Manuel Santos is expected to ratify the law Dec. 29. Lawmakers from the opposition Democratic Center party led by former President Alvaro Uribe protested by not casting votes on the issue. The opposition condemned the government for completing the peace deal in the legislature instead of respecting the result of an Oct. 2 nationwide plebiscite in which voters rejected the agreement. 

The amnesty law represents the first step in implementing the controversial deal. The precise list of FARC members who will benefit from the law will likely be ready by Jan. 30. This will follow the Jan. 10 deadline for all FARC militants to relocate to 26 specially designated transition zones. FARC leaders made the amnesty law a precondition for beginning the demobilization process, which will take a total of 150 days. 

Once in place, the law would grant amnesty to militants, soldiers and civilians who were involved in the conflict but not in systematic crimes against humanity. The ambiguity of the word "systematic" has led to controversy and Human Rights Watch criticized the law for being too soft on those involved in crimes like torture. They fear that the law could allow those who were involved in crimes against humanity once but not systematically to walk free.

Dawn reports on sunset; fuzzy math

Dawn has this report on Pakistan's military courts. All of the 275 cases that have been referred to the courts created for a 2-year period by the 21st Amendment have been completed, 161 of them resulting in death sentences. (The government numbers reported in Dawn's article add up to 277, not 275.) There seem to have been no acquittals.

Yet other numbers appears in this Geo News report on opposition to the government's proposal to maintain military courts with jurisdiction over civilians:

Jamiat Ulema-e-Islam (F) chief Maulana Fazl-ur-Rehman spoke against a draft law which if passed will make military courts permanent. 

Addressing a press conference on Thursday he said that it was being implied that judges from civil courts are “cowards”. “Forming military courts is an insult to civil judges,” he said. 

“Instead of forming military courts, we should address the issues that judges in civil courts face. Why can’t we give security to civil judges?” he said. 

“What is the point of such courts where accused are produced in a state of fear? This is against basic justice,” he said. 

*   *   *

The draft covers the issue of military courts. Military courts are to expire on January 7 and all under-trial cases will be transferred to the anti-terrorism courts. At present, 120 cases are being heard in military courts, which had received 300 cases overall. 

Under the new law, military courts will become permanent and terrorism cases will be sent to them.

News from Islamabad

The News International reports:

The Interior Ministry has decided to combine the Anti-Terrorism Act (ATA) with the Protection of Pakistan Act (PPA) and the new law in this regard has been drafted. 

The decision was made in a meeting of the National Assembly's Standing Committee on Interior on Wednesday. After approval by the interior minister, the draft law will be put before parliament. 

The draft covers the issue of military courts. Military courts are to expire on January 7 and all under-trial cases will be transferred to the anti-terrorism courts. At present, 120 cases are being heard in military courts, which had received 300 cases overall. 

Under the new law, military courts will become permanent and terrorism cases will be sent to them. MQM’s Mujahid Baloch wanted to say something during the meeting but he was stopped by committee chairman Rana Shamim. It led to an altercation between the two.

We will continue to monitor developments. One explanation for this turn of events may be that the government thought it would not be able to muster the votes needed to amend the 21st Amendment, but would be able to enact regular legislation.

Why is this murder case headed for military court?

Bahrain News Agency reports on a current murder investigation:

Chief of the Military Judiciary Brigadier Dr. Yussef Rashid Flaifel said investigation into the murder of a Bahraini woman on Noon Highway, in Riffa, on December 23 is still underway. 

The Military Prosecution launched the investigation as soon as it was notified of the incident. The body of the victim was examined by forensic experts and a coroner to determine the cause of the death. 

The Chief of the Military Judiciary said the Military Prosecution questioned the suspect in the presence of his lawyer and listened to the eyewitnesses' testimonies. Subsequently, it ordered the suspect be remanded in custody pending further investigations. 

The victim's family were notified on the day of the incident about all legal procedures to be taken in relation to the case and told that they would be officially summoned by the Military Prosecution at a later stage. 

The Chief of the Military Judiciary emphasized that the Military Judiciary at Bahrain Defence Force (BDF) is an independent judicial party and that investigation is being conducted transparently, impartially and according to Bahrain's laws. 

The case will be referred to the specialized Military Court after the investigation is completed.

Why?

A rose by any other name

Daily Pakistan reports that the sun may not set after all on the country's use of military courts to try civilian defendants -- although the structural arrangements may change. The 21st Amendment expires on January 7, 2017, but the end-state may not look all that different:

A draft bill has been prepared by merging Protection of Pakistan Law and the Anti-Terrorism Act. Under the new bill military courts will permanently hear the cases of anti-terrorism, local media reported. 

Sources said that new law will be presented in the parliament after getting approval from the Federal Interior Minister Chaudhry Nisar. The new law would propose detainment* of accused persons for 90 days. 

It is important to mention here that around 300 cases were sent to the military courts out of which 120 are under trial.

* Editorial pet peeve note (applicable to too many news articles in English): the word is "detention," not "detainment." This error has even made its way into The New York Times. Here endeth the rant. [Footnote added.]

Why is this case being tried in a military court?

One wonders why this Romanian case, as reported by Reuters, is being tried in a military court. Excerpt:

Romania’s top military court on Friday launched a criminal inquiry into former President Ion Iliescu and ex-prime minister Petre Roman over deaths which occurred after thousands of miners stormed demonstrations in the capital in 1990. 

The court said the two, together with the then head of the secret service and several other officials had a role in the killing of four people during clashes with crowds protesting against Iliescu’s rise to power after the 1989 fall of communist rule. 

“During June 11-15, 1990, the subjects of this probe for crimes against humanity, agreed and masterminded a generalised and systematic attack against civilians, demonstrators and against the population of Bucharest,” said a court prosecutor reading out an inquiry document.

In June 1990, a month after the first post-Communist democratic elections, Moscow-educated Iliescu summoned 20,000 coal miners to save his ruling National Salvation Front from what he called a “fascist coup attempt”. 

Prosecutors say they suspect Iliescu of crimes against humanity relating to the violence that ensued between June 13 and June 15 after months of peaceful demonstrations in Bucharest’s main square.

The charged conduct does not sound like a crime against humanity. 

Military death row (corrected)

The Associated Press has moved this inaccurate story about the men currently on the armed forces' death row at the U.S. Disciplinary Barracks, Ft. Leavenworth. The last military execution was in 1961.

Why is the AP story inaccurate? Because Andrew Witt of the U.S. Air Force is no longer on death row. His death sentence having been overturned, he is pending resentencing. So there are now five, not six, men on death row.

Where are the records?

Judicial review cannot be conducted in the absence of the pertinent records. Consider this case, in which the Sindh High Court has so far failed in its efforts to compel the government to file the records of military court proceedings. Excerpt from The Daily Times:

Fuming at the authorities concerned for failing to produce the case files of three suspected facilitators of the Safoora Goth carnage in court, the Sindh High Court gave them a last chance to obey its orders. 

Chief Justice Sajjad Ali Shah, who headed a division bench, warned the authorities to obtain the case files from a military court and submit in the court on the next hearing or it would order their release on bail. 

The hearing was put off till Dec 29. 

The court was hearing the petitions filed the relatives of three suspects - former Fishermen Cooperative Society deputy director Sultan Qamar Siddiqui and his younger brother Hussain Umar Siddiqui and Naeem Sajid - against the jail authorities for not releasing them despite having been acquitted by the military court.

Meanwhile, the 21st Amendment, under which Pakistan's military courts have authority to try civilians, is due to expire on January 7, 2017, only 11 days hence. Will there be a last-minute extension? 

Sterling certiorari petition filed

A petition for a writ of certiorari was filed on December 23, 2016 in the Marine Corps case of Sterling v. United States. The petition can be found here. The 4-1 decision of the U.S. Court of Appeals for the Armed Forces can be found here. The majority opinion by Judge Margaret A. Ryan states in part:

Appellant has failed to establish that the orders to remove the signs [she placed on her government computer] substantially burdened her religious beliefs. While Appellant seeks to cast the substantial burden as caused by the choice between obeying the orders to remove the signs and potentially facing a court-martial, this logic is flawed, as it presumes that taking down the signs constitutes a substantial burden — a burden imposing both secular and religious costs. This is the very legal question to be decided. We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion. See Kaemmerling, 553 F.3d at 679 (finding “as true the factual allegations that [the claimant’s] beliefs are sincere and of a religious nature — but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened”).

Retrial in Gdim Izik case, this time in a civilian court

Following changes in Moroccan law, a civilian prosecution is underway for the 25 civilian defendants in the Gdim Izik case. In 2010 eleven police officers died in the course of dismantling the Gdim Izik encampment. The case originally tried in 2013 in a military court, but was later set aside. Details here en français and here in English. "The referral of this case to the Rabat Court of Appeal follows the new Military Justice Act coming into effect on July 1, 2015. This law made it possible to review the jurisdiction of this court and put an end to the prosecution of civilians before a military court."

Puntland military prosecutor assassinated

The attorney general for Puntland's military courts, Abdikarim Hasan Fidiyo, has been shot dead. Puntland is a breakaway region of Somalia.

According to this Garowe Online report, "the late official has made an interview with a local radio station before he was assassinated. In the interview, Fidiyo said his visit to Bosaso city was aimed to take part in the hearing procedures for 70 cases in the military court of Appeals, and for those who were convicted with serious crimes."

Military promotions in India

The Quint has posted this informative op-ed about military promotions in India, by Suresh Bangara. Excerpt:

To those who constantly carp on the morale of soldiers due to supersession of an officer at the very pinnacle, it would be instructive to note that the soldier lives with the phenomenon of supersession all his life. 

He looks up to his immediate superior and leader who leads him into battle. So long as he has a good leader he is ready to offer the supreme sacrifice. 

Although, some officers have challenged their supersession in courts of law much against the service ethos, I cannot remember a single instance of their subordinates voicing their concern in an open show of grief. Yet, we have had a chief who challenged the accuracy of his date of birth in order to gain more time in the chair, only to be reprimanded by the highest court of law. That conduct would go down as unofficer-like in that he fought a case for himself and not for the service as a whole or for betterment of his soldiers.

President signs NDAA

President Barack Obama yesterday signed the National Defense Authorization Act for Fiscal Year 2017. The measure includes far-reaching changes in the Uniform Code of Military Justice reflecting, in large measure, the work of DoD's Military Justice Review Group. The signing statement is not yet available on the White House website or this private site.

Stay lifted in Gray case, but . . .

According to this report in The Fayetteville Observer, a federal district judge has lifted the stay barring the execution of Ronald Gray, clearing the path for his execution unless the military courts intervene. The last military execution in the United States took place in 1961.

Postscript. A reader cautions:

The court's order made clear that the district judge contemplates that the U.S. Army Court of Criminal Appeals or the U.S. Court of Appeals for the Armed Forces will now issue a stay and leaves the door open to doing so himself if they don't; there's no execution in the cards anytime soon. 

The linked Observer article also gets the principal basis for appeal wrong -- the main issue in Gray is a Wiggins-type ineffective-assistance-of-counsel claim for failure to develop powerful mitigating evidence that isn't too dissimilar to that in Wiggins itself.

New UN website on legal frameworks for deployed contingents

This just in from the UN:

"In order to increase transparency of the United Nations approach to sexual exploitation and abuse, the Office of Military Affairs (Department of Peacekeeping Operations) in collaboration with the Office of the Special Coordinator on improving UN response to sexual exploitation and abuse requested Troop-Contributing Countries (TCCs) to provide the national legal frameworks governing their military contingents while deployed to UN Operations. The purpose of this request was to make these laws accessible to the public through an on-line platform. Of the 124 TCCs, 28 have responded to date and more will follow in 2017."

The web page has been launched today at: 

https://www.un.org/en/peacekeeping/issues/legalframeworks.shtml

As indicated, 28 Troop Contributing Countries have already submitted framework reports, and these can be found on the DPKO website. Many other TCCs' reports remain to be submitted. When the process is complete, the website will be an important resource for basic information about national military justice systems.

By way of example, here is a link to the Finnish report: http://www.un.org/en/peacekeeping/documents/Finland_December_2016.pdf.

More on the decision of the Supreme Court of India on the right of Muslims to sport beards in the Air Force

The decision of the Supreme Court of India on the controversy whether Muslims serving in the Indian Air Force have a right to sport a beard or not was covered on this blog earlier. The decision generated a debate on religious freedom in the armed forces and also comparisons with Sikhs who are allowed to sport beards, more so keeping in view the constitutional freedoms provided to all religions in India, a much cherished and respected right. Experts though have differed a bit on this aspect since while unshorn hair is a mandate in Sikhism (though not followed by all- mostly an individual decision), many state that it is not mandatory in Islam but desirable. Interestingly, the counsel arguing for the appellant in the ibid case also agreed before the Court that the issue was debatable and there was no clear-cut answer whether beard was compulsory in Islam or not. The coverage by media however was not very accurate with certain publications stating that the Supreme Court had directed that while Muslims would not be allowed beards, Sikhs would. The truth however is that the Supreme Court made no such observation since the regulation on beards is religion-neutral and does not speak about Sikhism or Islam. The regulation simply permits beards for those religions where shaving is prohibited. Fetters on overt (non-mandated) religious symbols are also applicable to other religions in the defence servcies, including on Hindus. 

Gautam Bhatia (can be reached at: gautambhatia88[AT]gmail.com), a young jurist, has however termed the Supreme Court decision a missed opportunity, and I agree with him, since the Court could have laid down much more robust law on the subject. I take this opportunity to reproduce his blog-post here:

The Supreme Court’s Muslim Beard Judgement: A Missed Opportunity

Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:

“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.

Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.

However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.

Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.

It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:

“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”

This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).

Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.

Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:

“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).

Pardon me (maybe pun intended)

We have reported, along with many others, the mutiny trials from some years ago in Nigeria. (E.g., here, here, here.)  There were 70 soldiers convicted of mutiny and sentenced to death. Their sentences were later commuted to 10 years.

The soldiers, who were found guilty of mutiny, were accused of refusing to help recapture three towns that had been seized by Boko Haram in August.

Troops have complained that they are not being given enough weapons and ammunition to fight Boko Haram.

The Nation now reports that their lawyers have requested a pardon.

I read the request as based on the soldiers having been retaliated against for making--and acting on--legitimate complaints allowed under law. The U.S. military has an anti-retaliation statute for service members who make certain complaints, but not who mutiny. No reference was made to this report.

Dreyfus case anniversary

Capt. Alfred Dreyfus

On this date in 1894 Captain Alfred Dreyfus was convicted of treason by a French court-martial. He was sent to Devil's Island, a penitentiary off French Guiana. His conviction was later overturned, but he was retried and convicted again. Eventually he was cleared by the Court of Cassation and restored to active duty. He eventually was promoted to lieutenant colonel. Dreyfus died in 1935 and is buried in Montparnasse. The Dreyfus Affair divided France for decades.

Adultery, PLA-style

Sixth Tone reports here on a case in which a man was convicted for having an affair with the wife of a PLA soldier. Excerpt:

Last Sunday, a man was prosecuted under a controversial Mao-era law, originally conceived to prevent military spouses from straying. 

The man, surnamed Zhang, hails from Beijing and reportedly lived with a soldier’s wife for two months, according to the Beijing Morning Post. The court found Zhang guilty of “destroying a military marriage” — a crime introduced during the early 20th century to encourage army spouses to be faithful while their partners were away at war — and sentenced the man to seven months in prison. 

According to Han Xiao, a lawyer at Kangda Law Firm in Beijing, before the founding of the People’s Republic of China in 1949, the Communist Party devised a series of rules — including “the crime of the destruction of military marriage” — to prevent soldiers from being betrayed by their left-behind spouses.

Sixth Tone is a state-funded media outlet. Background here. The article does not indicate whether the case was tried in a military court.

D-17 for Pakistan's 21st Amendment military courts

Time is running out to extend Pakistan's 21st Amendment military courts, judging by this Daily Times report. Excerpt:

The federal government is silent on the future of military courts established under 21 constitutional amendments. Military courts will cease to exist if the government does not amend the Constitution again. Official sources told Daily Times that it looked like the federal government was not in the mood to extend the time period of military courts. The federal law ministry or defense ministry has not moved any summary to the federal cabinet or the prime minister for extension of military courts. 

*   *   * 

Sources said that two main allies parties of the government Pakhtoon khaw mili awami party and JUI F were not in the favour of extension of military courts, while this time it seemed that the main opposition party Pakistan Peoples Party will also not support the new constitutional amendment that is necessary to extend the military courts. 

On this, the federal government was reluctant to extend these courts because the government did not have a two thirds majority to pass the new constitutional amendment from both houses to extend the military courts. According to the constitution, a two thirds majority is necessary in the Senate and National Assembly to change the constitution.

The Eggnog Riot

Maj. Gen. Ethan Allen Hitchcock

In the spirit [ouch] of the impending holidays, the Editor invites the reader's attention to this intoxicating History Channel article about the Eggnog Riot that roiled West Point in December 1826. Excerpt:

Following weeks of investigation, court-martial proceedings began on January 26, 1827, against 19 cadets and one soldier. [Cadet Jefferson] Davis was spared, possibly for his immediate compliance with [Capt. Ethan Allen] Hitchcock’s orders, and eventually released from house arrest after six weeks’ confinement. For more than a month, a tribunal of professors and soldiers heard testimony from 167 witnesses, including from cadet Robert E. Lee, who didn’t partake in any of the mischief but spoke in defense of some of his classmates. 

The courts-martial lasted until mid-March. All 19 defendants were found guilty and sentenced to be dismissed. Eight, however, were saved by a recommendation of clemency, and five ended up graduating from West Point. Fifty-three cadets received lesser punishments.

Bail refused in Sgt. Blackman's case

Lord Thomas of Cwmgiedd CJ

The Court Martial Appeal Court (Lord Thomas of Cwmgiedd CJ and Sweeney J) today refused Royal Marines Sgt. Alexander Blackman's application for bail pending appeal. A copy of the judgment can be found here.

Cheese, anyone?

L’acte d’accusation ressemble à un emmental.*

Defense counsel in a current Swiss court-martial, commenting on the charge sheet. Details here, courtesy of Le Matin

* Swiss cheese

Does the use of cluster bombs violate international law?

On Monday, December 19^th, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen.  Following months of denial by the Brits and the Saudis, this admission responded to an earlier Amnesty International report documenting a cluster bomb found in a northern Yemeni province.

Cluster bombs contain hundreds of bomblets, which are meant to detonate on impact; failure to detonate has the effect of sowing a minefield.  Cluster bombs, like landmines, can lie in the ground for decades and go off at the slightest provocation terrorizing the civilian population.  As one jurist has noted, “Outside of nuclear weapons, biological weapons, or poison gas, it is hard to imagine a weapon more harmful to human beings than cluster bombs.”  In order to end their use a treaty was adopted in 2008.

The 2008 Convention on Cluster Munitions (CCM) entered into force in 2010.  The CCM obliges every state party “never under any circumstances to”:  “(a) Use cluster munitions; (b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.”  The United Kingdom, but not the US or Saudi Arabia, is a party to the CCM.

Saudi Arabia, in its defense, noted that: “Neither the Kingdom of Saudi Arabia nor its Coalition partners are State Parties to the 2008 Convention, and accordingly, the Coalition’s use of cluster munitions does not violate the obligations of these States under international law.”  All the same, the Saudis noted, they would cease using these specifically UK manufactured cluster bombs.

No jail for BDF commander, and no discharge for star-crossed lovers

The Monitor reports here that the commander of the Botswana Defence Force won't have to go to jail for contempt after all. Short version: two soldiers who are in love will not be discharged after all. And next time around the commander will probably not disregard a court order.

Global Military Justice Reform in 2016: the big stories

As 2016 draws to a close, what have been the major stories in global military justice reform? Some possibilities:

• Significant amendments to the Uniform Code of Military Justice, resulting from the work of the Military Justice Review Group. Downsides: no public hearings of any kind on Capitol Hill; no improvements in GI access to the U.S. Supreme Court; no transfer of charging power from commanders to lawyers independent of the chain of command
• Initiation of a comprehensive review of Canadian military justice. Downside: the government is not promising it will all become public (possible invocation of attorney-client privilege)
• Referral of the case of Sgt. Alexander Blackman of the Royal Marines back to the Court Martial Appeal Court. Downside: second-guessing the work of the British judicial system
• Continued use of military courts to try civilians in Pakistan, Egypt, Uganda. Downside: where to begin?
• The UN studies peacekeeper discipline, largely driven by events in the Central African Republic. Downsides: a serious "case of the slows"; tension between UN-NY and UN-Geneva
• Reform embraced in principle in India. Downside: not much sense of urgency for a top-to-bottom review of the military justice system, including creation of a modern, independent military judiciary and lawyer-driven charging
• Important details still to be painted in in the Colombia-FARC peace agreement. Downside: if the specifics are not broadly acceptable, potential deal-breaker

What would you add to or remove from the list? Developments in Mexico? Chile? Elsewhere? Comments are invited (but you must use your real name).

To extend or not to extend; that is the question

The Express Tribune has conflicting reports here on whether Pakistan's 21st Amendment military courts will be extended after the current measure expires. Excerpt:

The civilian leadership is not interested in extending the tenure of military courts set up to try terror suspects, sources told The Express Tribune.

According to them, the government will not bring forth a new constitutional amendment to extend the courts’ tenure, which will end on January 7. “The tenure of military courts will not be extended but effective legislation will be put in place to combat anti-state elements,” a senior Pakistan Muslim League Nawaz (PML-N) leader said. He said this new legislation will have provisions to protect judges, witnesses and prosecutors, and to govern jail trials, use of forensic data, etc.

But:

The military establishment is still likely to seek an extension for such courts, some other sources said. They said the army chief may take up this issue during his first meeting with the prime minister over the implementation of the National Action Plan. However, the military may drop the extension demand if the civilian government comes up with any alternative measures to try terrorists, the sources added.

3 more years proposed for Pakistan's 21st Amendment

This editorial in the Pakistan Observer recommends that the country's 21st Amendment, permitting the trial of civilians by military courts, be extended for three years. Excerpt:

There was no justification to keep the two-year condition when the lawmakers and policy-makers knew well that there was no imminent end to the menace of terrorism. However, two-year timeframe was supposed to be utilized by the federal and provincial governments to strengthen normal judicial system and come out with foolproof mechanism to dispose of cases of terrorism expeditiously, which unfortunately has not been done. Therefore, there is every justification to extend tenure of military courts at least for three more years so that they are able to clear all the cases referred to them.

What are the odds the amendment will be extended? 

Reema Omer writes about Pakistan's about-to-sunset 21st Amendment

Reema Omer writes here about the 21st Amendment courts in Pakistan. Her conclusion:

When the 21st Amendment expires in less than a month Pakistan will be back to where it was two years ago. Judges and witnesses will continue to be vulnerable to security risks and issues of capacity and training of law enforcement agencies will continue to weaken the administration of justice and the rule of law. 

The frustration with impunity for terrorism and other serious crimes in Pakistan is legitimate, but there are no “quick fixes” to a crisis caused by decades of neglect. Ensuring justice — as opposed to executing people in large numbers and convicting suspects without the fair and impartial adjudication of responsibility — will require major rethinking and reform of the criminal justice system. 

It will require ensuring that human rights, including basic guarantees of the right to a fair trial, are at all times protected; learning from the successes and failures of other jurisdictions that face similar security threats; and drawing from the actual everyday experiences of judges, lawyers and investigators, not hasty and ill-conceived measures motivated by the desire for revenge at the cost of fundamental principles of fairness. 

The government missed the opportunity to do so two years ago after the APS [Army Public School] tragedy. It must not make the same mistakes again.

Equal Justice Under Law

That's what it says on the Supreme Court building.

In United States v. Dalmazzi, the U.S. Court of Appeals for the Armed Forces granted review on August 18, 2016 as to whether a judge of the U.S. Navy-Marine Corps Court of Criminal Appeals was disqualified because he was also serving on the U.S. Court of Military Commission Review. Thereafter, the Court of Appeals heard oral argument and on December 15, 2016, issued a decision holding that the issue was moot because the judge's second appointment had not been made when the service court decided 2LT Dalmazzi's case. In a published opinion, the Court of Appeals vacated its earlier grant of review and denied the petition for review.

Fly in the ointment: cases in which the Court of Appeals has granted a petition for review are eligible for review by the Supreme Court of the United States. Cases in which it has denied a petition for review are not. Is Dalmazzi -- who once had a right to seek Supreme Court review -- now ineligible to do so? Can the Court of Appeals turn certiorari-eligibility on and then off by denying a petition for review it previously granted? Why didn't it simply affirm, instead of denying 2LT Dalmazzi's previously-granted petition for review?

Congress has to fix the statute governing certiorari review of decisions of the Court of Appeals so this kind of question won't come up again. It's only fair: other state and federal criminal defendants can always seek certiorari; ditto for military commission accuseds.

HASC/SASC: anybody home?

[Full disclosure: the Editor is counsel in a case that includes a Dalmazzi issue.]

An important obituary

Today's New York Times has this powerful obituary of Larry Colburn, who died at age 67. He was one of three men aboard a U.S. Army helicopter who helped stop the My Lai massacre. Excerpt:

Mr. Colburn was the last surviving member of a three-man helicopter crew that was assigned to hover over My Lai on Saturday morning, March 16, 1968, to identify enemy positions by drawing Vietcong fire. 

Instead, the men encountered an eerie quiet and a macabre landscape of dead, wounded and weaponless women and children as a platoon of American soldiers, ostensibly hunting elusive Vietcong guerrillas, marauded among defenseless noncombatants.

See generally United States v. Calley.

More resources needed for DIILS

The Government Accountability Office has issued a report on the Defense Institute of International Legal Studies. The GAO announcement, with a link to the report, can be found here. Excerpt:

Upholding the rule of law is critical to U.S. efforts to support international peace and security. DOD's Defense Institute of International Legal Studies trains military partners in over 100 countries on rule of law concepts such as human rights, rules on the use of force, and anticorruption. 

We found that demand for DIILS assistance has increased by over 50 percent since 2013, while its workforce has remained constant. Consequently, DIILS staff face challenges in meeting the demands for their services. We recommended that DOD assess whether the size of DIILS’s workforce allows it to fulfill its mission.

The PLA and how to terminate commercial contracts

mediation by court 

China's Central Military Commission's (CMC) March, 2016 Notice on the military and armed police forces stopping entirely compensated services (Notice) 关于军队和武警部队全面停止有偿服务活动的通知 has been back in the news in China this month. (Our earlier blogpost discussed litigation arising from the Notice.)
December's coverage started with this report of a brigade of the 54th Army (located in Henan Province) negotiating with 79 businesses to which the brigade had leased land and premises. According to the report, the businesses pointed to their "black and white contracts" but eventually settled with the brigade under the auspices of the local civilian court with the assistance of a law firm that thought the CMC notice a force majeure event.  A week later, a military law professor wrote in this article published in the People's Liberation Army Daily that the "principle of changed circumstances" (set out in the Supreme People's Court second interpretation of the Contract Law) meant that military landlords were not liable to their tenants for early termination. This analysis has been reiterated in the official press and by some commentators.

One prominent legal blog highlighted the views of many legal professionals about this analysis-these are comments by "watermelon eating people" (people who are oblivious to the truth).

Chinese law on the principle of changed circumstances is found in the Supreme People's Court's (SPC's) second interpretation of the Contract Law (background on the principle found here:

If a material change in the objective circumstances that could not have foreseen by the parties at the time of the conclusion of the contract caused by something other than force majeure and falling outside the realm of commercial risk occurs after the formation of the contract and continued performance of the contract would be manifestly unfair to one of the parties or realisation of the objectives of the contract has become impossible and a party petitions a people's court for amendment or termination of the contract, the people’s court shall, based on the principle of fairness and while taking into consideration the actual circumstances of the case, determine whether to amend or terminate the contract.

In the SPC Circular accompanying the interpretation, the SPC requires courts to obtain approval from a superior court before applying the doctrine, to avoid abuse.  The following circumstances are generally recognized as a change of circumstances: (1) large changes in the price of the goods; (2) the  (2) loss of the basis of the contract basis (such as the loss of the subject matter of the contract); (3) significant changes in exchange rates; (4) international economic and trade policy changes.
Why was the military law professor's article published and widely publicized?  Is it intended to reduce the liability of military lessors to their tenants?  Does it have even greater significance about how the military and armed police understand law?