Will Chinese military law become more transparent?

The Editor very usefully flagged that the United Nations Office of Military Affairs (Department of Peacekeeping Operations) has requested Troop-Contributing Countries (TCCs) to provide the national legal frameworks governing their military contingents while deployed to UN Operations to improve transparency and accountability in the handling of cases of misconduct. The webpage from which the frameworks can be accessed is here. China is among the many countries listed that have not submitted their legal frameworks.

According to this article, China contributes more troops to United Nations peacekeeping missions than any other permanent member of the Security Council. On December 22, 2016, for example, the Supreme People's Court posted data on sexual abuse crimes in China, but the data did not include the military courts. Because information concerning the Chinese military legal system is difficult to access, the UN website will be a welcome development for all wanting to further understand how the Chinese military justice system operates.

Finally, a solid report on the discussions in Pakistan

The News International deserves credit for a clear explanation of the current state of play (including actual bill language!) concerning the proposal to revive Pakistan's military courts' power to try civilians. One party -- the PPP -- seems to be holding out for the moment; others are on board mostly out of a sense of bowing to the inevitable and with, at least in some cases, heartburn. But heartburn that is not serious enough to impel them to vote No.

Sure looks like we're seeing tail-lights. The George III award stands.

Uganda Constitutional Court case put off

The Constitutional Court of Uganda has put off until March 6, 2017 consideration of a petition by a member of Parliament challenging the power of the general court-martial to try civilians, according to this account. The case had been assigned to a single judge, but will now be heard by a full bench.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Two more years for Pakistan's military courts

The Express Tribune reports that Pakistani parliamentary leaders have agreed to revive the 21st Amendment military courts for two years. Assuming this proves to be true (the article claims unanimity but also indicates opposition from some parties), Global Military Justice Reform hereby awards the country the George III* award for retrograde military justice developments. If the deal falls apart (a two-thirds vote is needed in both houses of Parliament), the award will be revoked.

* Speaking of George III (this blog's favorite monarch), the Yale Center for British Art in New Haven, CT, in collaboration with Historic Royal Palaces, has a fantastic exhibit, Enlightened Princesses: Caroline, Augusta, Charlotte, and the Shaping of the Modern World. It runs though April 30, 2017. From June 22 to November 12 the exhibit will be at Kensington Palace. Augusta of Saxe-Gotha was George III's mother, and Charlotte of Mecklenburg-Strelitz was his queen consort.

Statement suppressed in Israeli military court

Haaretz reports here on the precedent-setting decision of an Israeli military judge to suppress the statement of a Palestinian youth who was denied a lawyer.

“The investigative authority blatantly violated the minor’s rights in these circumstances,” wrote [Col. Yair] Tirosh. “These are not minor, insignificant flaws as claimed but significant and serious ones with clear judicial repercussions. … Violating rights is particularly severe considering the accused’s young age.”

Judge Tirosh held that Israeli civilian court rules of evidence 

A gutsy admission in Pakistan

Mosharraf Zaidi has written a gutsy op-ed for The News International admitting that he was wrong to support Pakistan's 21st Amendment. Excerpt:

. . . The case for these courts doesn’t stand up to any kind of scrutiny from a rule of law, transparency or due process perspective. I knew all this on December 27, 2014 and yet I still expressed public endorsement of these courts. I owe my readers an apology for this. It was bad judgement. I am sorry. 

Why am I sorry? I can easily conceive of morally defensible arguments to run roughshod over due process to achieve an urgent outcome. I have a strong enough constitution to be able to grapple with moral ambiguity or even contradiction. Public policy is complicated business, and it is most complicated in a place like Pakistan, at a time like the post-APS scenario. So my mea culpa is not inspired by the procedural, rights-based, moral or ethical arguments against military courts. 

I made a mistake in supporting military courts in 2014 because the existence of military courts creates the space and time for the executive, the legislative and the judicial branches to delay the necessary legal and administrative reforms our country desperately needs. 

I made a mistake in supporting military courts in 2014 because the existence of military courts empowers the military in a civilian domain, and we can’t keep whining about the civ-mil disequilibrium on our Twitter timeline, while handing the military more powers on our Facebook pages. That’s called mixed signals. It is bad form. 

I made a mistake in supporting military courts in 2014 because the existence of military courts is an easy and convenient way for our civilian system – administrative and legal – to escape scrutiny and responsibility for its epic failure to provide timely justice to society in general and to the victims of terror in particular. 

One should learn from their mistakes. The proposal to extend or re-initiate military courts in Pakistan as an instrument of countering terrorism, or countering violent extremism, or improving the quantum of justice is a bad idea. It does none of the things it is supposed to do. It only delays an inevitable conversation about reform. It is an escape hatch through which this country’s elected and unelected, military and civilian, in-power and in-opposition leaderships seek to escape serious and difficult processes of reform. 

We must not make the same mistakes that we have made before. I apologise for supporting military courts in 2014, and I oppose their establishment in 2017. I hope both civilian and military leaders will examine the mistakes they have made in 2014 and thereafter, and seek to avoid the same mistakes in 2017.

Should Brazil's Military Police be disbanded?

Luis Felipe Moraes asks here whether the time has come to abolish Brazil's Military Police. Excerpt:

Currently, the Brazilian police is divided into two groups: the Civil and the Military, with the former holding the same rights and duties as the rest of the general public once it is a civil institution, and the latter following a specific pattern of rules once it is linked to the Armed Forces. 

The problem is that the Armed Forces are trained for war, that is, for killing. Unless the police is at war with its own people, it is not necessary for the agents to be inserted inside a rigid hierarchy, being subject to violent training, ill-treatment, and unreasonable punishment, as typical within the army; in accordance to the Military Justice, military soldiers can go to jail for merely being late, and are also not allowed to go on strike and fight for their rights — which is why it is not the own police who is blocking the corporation buildings, but their family members. 

The lack of rights and the violent training explains why Brazilian military police is the one which most kills and is most murdered in the world — according to a survey revealed by the 2016 edition of the Brazilian Yearbook of Public Security, 9 people were killed due to police intervention everyday in that year in the country; this means that in six days, the Brazilian police killed the same amount the British police has killed in 25 years. 

In fact, demilitarization means abolishing the warfare mode within which the police force operates, which stems from the Armed Forces and its hierarchical action; it means ceasing the training of security agents based on the idea of a war against an enemy.

Okinawa NCIS sting

Japan Times reports on cases brought as a result of an NCIS sting program on Okinawa. Excerpt:

Since 2015, at least 36 U.S. service members on Okinawa have been arrested in child sex stings operated by the Naval Criminal Investigative Service. 

Those detained have belonged to all branches of the military — with marines in the majority — and their ranks have ranged from private to lieutenant colonel. Typically they have received sentences of between two and three years in military prison, and upon their release they will be required to register as sex offenders in the United States.

Leniency questioned in New Zealand

Stuff reporter Kirsty Lawrence has reviewed outcomes in years' worth of New Zealand military cases and concludes here that the country's military defendants get off light. She writes:

Nearly two dozen military personnel have faced charges of indecent assault and rape in the past two decades, newly released documents reveal. 

And while the majority of them were eventually found guilty, hardly any saw the inside of a prison cell, and none of their crimes ended up on their civilian criminal records.

*   *   *

Since 1991, there have been 144 court martials [ouch] held in New Zealand. 

Information released under the Official Information Act showed that of those, 22 had charges that could be transferred to a civilian court. 

These included indecent assault, common assault and unlawful sexual connection, among a variety of other charges. 

Punishments and findings varied, with one indecent assault charge in 1996 finding the offender not guilty as they were "sleep-walking" at the time of the incident.

Many sentences were also quashed on appeal. Reduction in rank appeared to be the most common punishment.

The handful of comments are worth reading.
The author of this story is naive and has cherry-picked a few specific cases to try and paint the picture of an issue where there isn't one. The NZDF justice system can be absolutely brutal in punishing the most mundane of offences, many based on historical traditions more than any real world equivalent. Most of these offences are specific to the NZDF and would make the average person laugh due to the ridiculousness and wastefulness of it all.The author of this story is naive and has cherry-picked a few specific cases to try and paint the picture of an issue where there isn't one. The NZDF justice system can be absolutely brutal in punishing the most mundane of offences, many based on historical traditions more than any real world equivalent. Most of these offences are specific to the NZDF and would make the average person laugh due to the ridiculousness and wastefulness of it all.The author of this story is naive and has cherry-picked a few specific cases to try and paint the picture of an issue where there isn't one. The NZDF justice system can be absolutely brutal in punishing the most mundane of offences, many based on historical traditions more than any real world equivalent. Most of these offences are specific to the NZDF and would make the average person laugh due to the ridiculousness and wastefulness of it all.

Pakistan's political quandary

Global Military Justice Reform has been attempting to follow the back and forth in Pakistan over whether to revive the country's military courts' power to try civilians. That there is posturing and horse-trading going on among the parties is clear, and that's in the nature of politics. Whether the competing demands can be reconciled will be known, maybe, in the coming week. Will the 21st Amendment be revived? If so, for another two years, for three years, for a split-the-difference year-and-a-half? Will the former limitation to persons who act in the name of religion or sect be in a new measure, offensive as that must be to the religious parties? How will the measure affect Baluchistan or FATA?

But there's a more basic issue, and it starts with the notion that there is a class of suspects who are referred to as "jet-black terrorists." The authorities use this phrase as if doing so in itself justifies the use of military courts. But just what is the difference between a "jet-black terrorist" and any other terrorist? The number of victims? Their modus operandi? Or is the term simply there to scare the listener into shutting down his or her thought process and get in step? It does seem to be the latter, and the lack of pushback to it is cause for concern. The term corrupts the discourse.

It has been nearly two months since the 21st Amendment expired. (Indeed, Pakistan's political class knew as early as January 7, 2015 that it would be expiring in two years.) In those two months there has been a great deal of churning and burning, with countless meetings, briefings (although the public has no idea what was said in them), posturing, boycotts, and irreconcilable claims that there either was an impasse or stalemate or that basic agreement had been reached in the interest of national unity and security. In short, a lot of energy -- and some hot air -- has been expended.

That show of activity has been single-mindedly focused on the revival issue . . . and not the more fundamental problem that there would be no need for 21st Amendment courts if the regular court system were functioning -- even as to "jet-black" defendants. If a quarter of the energy that has been expended on revival negotiations had been spent on that continuing problem, it would have been solved long ago. Yet no effort at all seems to have been made in this direction. If half a dozen party leaders and two or three legislative drafters had been locked in a room for a day and given a laptop, a bill could easily have been generated. It could have been quickly rammed through the Parliament as regular legislation; after all, the 21st Amendment itself was rammed through even though it required supermajorities. Why hasn't this happened?

Impunity in India?

The Wire has this story about offenses by Indian Army personnel. Excerpt:

In India, the army has its own military courts, whose trial and conviction rates are yet to be assessed. For civilians, in cases of rape, the National Crime Records Bureau data (from 2015) places the conviction rate at around 28%. With AFSPA still unaltered, we can imagine the corresponding statistics for the armed forces. 

One common fallacy regarding the army’s impunity must be clarified. Army officials are not immune under AFSPA [Armed Forces (Special Powers) Act] if they sexually assault women or commit rape. Section 7 of the Act provides protection from prosecution for “anything done…in exercise of the powers conferred”. These “powers” include causing death, search and arrest without warrant; and they cannot be taken as a token of liberty to sexually assault residents. But, under AFSPA-related offences, military personnel cannot be prosecuted unless there is a prior sanction by the central government. Responding to an RTI application filed by an NGO, the Jammu and Kashmir Home Department stated that “no sanction for prosecution has been intimated by the Ministry of Home Affairs and Ministry of Defense to the State Government from 1990-2011 under the J&K Armed Forces Special Powers Act” (emphasis added). 

The Justice Verma Committee clearly suggested that no sanction from the Centre should be required if the person has been accused of committing sexual offence in the disturbed areas where the AFSPA operates. But this suggestion is yet to be adopted. In addition to all this, court martial case proceedings remain opaque. Amnesty International India has raised serious doubts over the manner in which investigations and trials are conducted in our military justice system.

Retrofitted military jurisdiction

In the Alice-in-Wonderland world of Pakistani courts, consider this case. The Peshawar High Court has stayed the execution of Mohammad Yousaf and has ordered the case clubbed (consolidated) with other similar challenges. Mr. Yousaf was among those convicted and sentenced to death by a military court authorized to try civilians under the country's now-expired 21st Amendment. Okay, we get all that. But here's the interesting part. The 21st Amendment was enacted in January 2015, yet (according to Dawn) Mr. Yousaf has been in custody for over six years, meaning the offense(s) of which he was convicted must have been committed four or more years before military trials were even authorized for civilians. In other words, military jurisdiction was extended to his and similar cases ex post facto.

Weekend report on Pakistani political maneuvering

The Express Tribune has this report on the current state of play regarding the government proposal to revive the military courts' power to try civilians. From a distance, it sounds cogent, and gives a sense of the complex interplay of government demands and the political needs of the various religious and secular parties. Things seem to be coming into focus, with the differences narrowed as a result of some serious horse-trading and compromises. The question is whether the remaining gaps -- not insubstantial ones -- can be bridged.

Venezuela recognizes responsibility in case of Johan Ortiz Hernandez

Nineteen year old Johan Alexis Ortiz Hernandez was killed on February 15, 1998 at the National Guard Training School in Tachira, Venezuela. He was participating in combat training simulation exercises in which real bullets were used although they were supposedly banned from use in such exercises. The petitioners also contended that there were no safety measures in place nor medical assistance available to treat emergencies at the location where the combat training exercise was held. The petitioners further alleged that Johan Alexis “was tortured, clandestinely, after being mortally wounded, with beatings, dislocation of his shoulder, while he was in the throes of death, cigarette burns” and that he did not receive the immediate medical care he needed, but was transferred instead with delay to a rural hospital, where he ultimately died.

Seventeen years later, on February 9, 2017, during a public hearing on the case (Caso Ortiz Hernandez v. Venezuela) before the Inter-American Court of Human Rights, the parents of Johan Alexis testified about their efforts to seek justice and learn the truth about how their son died. The Venezuelan State recognized before the Inter-American Court that the deprivation of the life of Johan Alexis had been arbitrary and apologized to the parents for the acts of the state agents that caused the death of their son. In addition, Venezuela requested that the Court "render a minute of silence as homage to this humble and valiant young man who aspired to enter the Armed Forces to serve his country."

An anniversary

Thirty years ago today, the Supreme Court of the United States heard oral argument in Solorio v. United States, 483 U.S. 435 (1987). The audio is available here. Overruling two of its own precedents, the court ruled that merely being on active duty was a sufficient basis for the exercise of court-martial jurisdiction, and that service-connection beyond that was not required by the Constitution. (Full disclosure: the Editor was counsel for the American Civil Liberties Union, an amicus curiae supporting Petty Officer Solorio. The parties were represented by Lieutenant Commander Robert W. Bruce of the Coast Guard and Solicitor General Charles Fried.)

Since that fateful day, two things of note have happened.

First, rather few cases that could not have been tried under prior case law have in fact been tried by American courts-martial. As a result, it would certainly seem that good order and discipline would be unaffected if courts-martial did not have their current "anything goes" subject matter jurisdiction.

Second, while not every country has gotten the message (e.g., Canada), human rights jurisprudence is increasingly firm that courts-martial should have subject matter jurisdiction only over military offenses and offenses with some functional nexus to military service. The 2006 draft UN Principles Governing the Administration of Justice Through Military Tribunals observe: "The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel."

Whether or not Solorio was correctly decided, it only holds that the Constitution does not mandate service connection. Congress could -- and should -- reimpose that requirement as a matter of legislative judgment. The result would have no adverse impact on the armed forces other than ever so slightly reducing court-martial case loads, and in the non-service-connected cases that would be pursued by civilian authorities, the result would be to increase the rights of military personnel who are accused of non-service-connected offenses. They would be tried in state courts, where the protections of the Fourteenth Amendment apply with full force.

HASC and SASC: armed with the experience of the intervening 30 years, why not include this in the next military justice bill . . . the one that gives GIs equal access to the Supreme Court?

Professor to be tried for treason in Venezuelan military court

A professor has been arrested and held for trial in a Venezuelan military court on treason charges. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Is a legislature a court of appeal?

When should a legislative body review actions of military authorities in specific cases, rather than generically? That question is posed by a current controversy involving a former member of the Kenya Defence Forces. As reported here:

A former soldier is making an unusual appeal to the National Assembly. 

Benjamin Chelang'a wants lawmakers to get the Kenya Defence Forces (KDF) to change the classification of his conduct on his termination certificate from "good" to "very good." 

Mr Chelang'a was a corporal in the KDF. In the petition sent to the House by Speaker Justin Muturi, he says he was unfairly disciplined on the basis of a false accusation, thrown in prison for 42 days and then dismissed from service even after seeking early retirement. 

He claims these actions violated the Constitution's provisions on the rights of workers and the provisions of the Employment Act. 

"The Petitioner therefore prays that the National Assembly examines the legitimacy of the process applied in his dismissal and in the classification of his conduct as 'Good' instead of 'Very Good' as indicated in the termination of service certificate," Mr Muturi said.

Mr Muturi said that although the issues raised by Mr Chelang'a can be settled at a Court Martial, the Constitution provides that the National Assembly deliberate on and resolve issues of concern to the people. 

"It may be well that the grievances of the Petitioner may be resolved without having to [resort] to a Court Martial process," said Mr Muturi. 

Mr Chelang'a's petition will be considered by the Labour and Social Welfare Committee, which Mr Muturi directed to examine the issues the former soldier raises and report back on the matter within 60 days as required by the standing orders. 

Mr Chelang'a's petition is likely to offer MPs, and the public at large, a rare glimpse into the military's internal disciplinary processes as well as measure how far the lawmakers' powers can go.

Some countries have established administrative tribunals to address such matters, taking the burden off legislatures to enact private laws to correct military errors and injustices. In the U.S. this was done in 1946. The civilian boards for correction of military and naval records adjudicate thousands of cases, large and small, each year. There are also uniformed discharge review boards. These boards' decisions are subject to judicial review. 

Stalemate? impasse? [with fake news alert]

It would appear that Pakistani political parties have not yet reached agreement on whether, for how long, and on what terms to revive the 21st Amendment military courts. According to this account, today's meeting, like its predecessors, proved fruitless. A further meeting will be held on February 28th. Between now and then, one can only speculate about what additional horse-trading will take place behind the scenes. Smoke-filled rooms are sometimes necessary, but this is setting records.

Postscript: The Editor just noticed this article, which asserts that an 18-month deal has been struck. It is inconsistent with reports from respected newspapers and appears to be a case of fake news.

Public comments: Canadian comprehensive review

The Canadian Armed Forces Judge Advocate General's Court Martial Comprehensive Review Team has posted this summary of comments received from the public in response to the team's invitation:

In submissions from the public, some were skeptical whether “ordinary criminal offences” – or offences under civilian law – ought to be triable at all within the court martial system, where others suggested that these offences should only be triable when the facts of the offence have some kind of connection to military service. 

Some people felt that the court martial system should not have jurisdiction to deal with offences of a sexual nature, especially when those offences concern the families of CAF members or young persons, including ‘cadets’. Others noted that, where inappropriate sexual behaviour, assault, or harassment does occur, the system must take the matter seriously and the perpetrator must be dealt with sufficiently harshly. 

Still on the topic of jurisdiction, some people insisted that the military must have at least some way to discipline its members, given how important discipline is in the CAF and considering the unique kinds of tasks the CAF is trusted to carry out. Some suggested that, in light of this trust, military members ought to be held to a higher standard than ordinary citizens, and that this higher standard should be formalized in law. Since military service in Canada is completely voluntary, some saw military members as having agreed to be held to this higher standard when they enrolled.

Slow justice in Strasbourg

One of the most regrettable things than can befall a system of justice is delay. It happens every, to a greater of lesser degree. In this regard, today's decision of the European Court of Human Rights in Benavant Díaz v. Spain, Application No. 46479/10, is noteworthy. The case involves a challenge to disciplinary punishment -- six days' detention for a brief AWOL -- imposed by a commander on a subordinate in Bosnia-Herzegovina on February 22, 2006. That was slightly over 11 years ago. The complainant's attorneys made a clever, rather technical argument about whether Spain had in effect improperly broadened the scope of its military-justice reservations to Articles 5 and 6 of the Convention. The Court seems to have been on solid ground in rejecting that argument. What is disturbing, however, is that it took the Court so long to decide a case that had been filed with it on July 23, 2010, over six years ago.

Military Justice podcast

Some thoughts on military justice reform creep into this conversation with the Military Justice podcast's Lt. Col. James W. ("Weirick") Weirick, USMC (Ret). Comments are welcome (but, IAW Global Military Justice Reform Rule 1, use your real name -- nothing anonymous).

Whose ox will be gored?

This Dawn article about the state of play on the proposal to revive Pakistan's military courts' power to try civilians is worth reading. It would seem that in order to gain the support of religious parties, the government is willing to drop language (that had appeared in the now-expired 21st Amendment) that limited that power to persons “belonging to any terrorist group or organisation using the name of religion or a sect.” That deletion, however, concerns other parties because the power might be used for "arm-twisting or political victimisation." The actual text of the proposal has not been made public.

How about the rock bottom principle that civilians -- all civilians, not just the political class or religious fanatics -- should simply not be tried in civilian courts?

This Dawn editorial nails it. Excerpt:

The government may try and bulldoze the principled and sensible parliamentary resistance among elements of the opposition, but what would be even more shocking is if the government makes a rumoured concession to the religious right on the issue.

Bahrain's military trials amendment

It’s not like Bahrain’s civilian courts have any legal credibility, but there is a vital principle here, and allowing civilians to be tried in military courts is the final kiss goodbye to any pretense of the rule of law.

Brian Dooley, Director, Human Rights Defenders at Human Rights First, writing here for Huffington Post

Postscript: Human Rights Watch has this informative backgrounder. Excerpt:

International human rights bodies have determined that trials of civilians before military tribunals violate the right to be tried by a competent, independent, and impartial tribunal. The Human Rights Committee, the international expert body that interprets the International Covenant on Civil and Political Rights, which Bahrain ratified in 2006, has stated that civilians should be tried by military courts only under exceptional circumstances and only under conditions that genuinely afford full due process.

Naming, shaming and maybe deterring

A major U.S. military installation will begin to make known the names of personnel convicted at courts-martial on a monthly basis. Joint Base Lewis-McChord reports:

Starting with this issue of the Northwest Guardian, the Joint Base Lewis-McChord Public Affairs office will publish the names and units of Soldiers found guilty at courts-martial on a monthly basis. Although the names have always been a matter of public record, legal and public affairs officials at JBLM hope a monthly roll up of the names of those found guilty will be helpful in trying to prevent future law breaking. 

“There are two major factors behind publishing the courts-martial: general deterrence and transparency,” said Lt. Col. Jennifer Clark, I Corps chief of military justice. “We will be releasing them for both I Corps and the 7th Infantry Division.” 

Courts-martial run the gamut of potential crimes. Whether that be larceny, sexual assault, battery or anything else, they will be disclosed. 

“Over the years, we’ve only occasionally printed results of courts-martial, and then only using the ranks and units of the Soldiers in the Northwest Guardian,” said Joseph Piek, chief of public affairs at JBLM. “Printing courts-martial results on a consistent, monthly basis in the base newspaper and in our online publication with names, ranks and units of those convicted, will be a collaborative effort with our JBLM legal teams. 

“If it helps deter even one service member and causes them to take pause from committing a crime, then we’re supportive of this effort.”

Sounds like a good idea, which other commands should emulate.

"We don’t need The Hague; we have the Kirya."

Gideon Levy

Haaretz's Gideon Levy offers this tough judgment on Israeli military justice in the wake of the Elor Azaria case:

This institution also knows how to richly reward and protect IDF soldiers and officers, just as the people want it to do and as their commanders expect it to do, and to turn its trials into perversions of justice. Only in this court could a senior officer like [Brig. Gen.] Ofek Buchris, who was charged with rape and sodomy, emerge with the draconian sentence of being demoted by one rank. That’s how cruelly the court treated him. 

Just like the IDF Orchestra isn’t an orchestra and Army Radio isn’t a media outlet, this court is not a court. But it is even more corrupting than the first two examples: It sends its demobilized metastases into the civilian justice system. 

Attorney General Avichai Mendelblit came up through this rotten environment, and so did more than a few judges, including some on the Supreme Court, who are convinced that they were doing justice all those years. They carry with them the glorious legal traditions of the prefab buildings at Ofer [Prison], and those traditions remain etched in them forever.

The decision of the court-martial is subject to appellate review.

Politicians and military justice: the IDF Chief of Staff responds

Lt. Gen. Gadi Eisenkot

Lt. Gen. Gadi Eisenkot, Chief of Staff of the IDF, has responded vigorously to comments by politicians figures on the case of Sgt. Elor Azaria, according to this Jerusalem Post report. Excerpt:

Speaking in a closed-door session of the Knesset Foreign Affairs and Defense Committee, Eisenkot blamed lawmakers for saying he had a direct effect on the Kfir Brigade combat medic’s trial and that he draws a clear line between the military justice system and the IDF hierarchy of command. 

He said there is a difference between an honest mistake made by a soldier, from which as a commander he should learn, and an act of negligence or moral failure that should not be backed. 

Eisenkot pointed fingers at those who said he interfered in the judicial process. “I was told that I have done things that I never have,” he was quoted as saying. “They gave me all sorts of nicknames and labels.” 

He also denied allegations that he had rushed to react to the incident, stating that his first comment came on a radio show several weeks after Azaria killed the already “neutralized” terrorist Abdel Fattah al-Sharif in Hebron’s Tel Rumeida neighborhood on March 24, 2016. 

Eisenkot asked the politicians to refrain from involvement in the legal process, and reiterated that the military justice system has the proper mechanism to decide whether to pardon Azaria. 

It will act according to the correct procedure and not be influenced by populist politicians who are trying to score points among their constituents, he said.

Military trials of civilians in Gaza

In a single day, military trial and appellate courts have handed down or approved seven death sentences for civilians who were convicted of collaboration with Israel. The Palestinian Center for Human Rights has protested that the proceedings lacks fair trial guarantees and urged abolition of the death penalty. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Charges and countercharges of UCI, excessive leniency in Azaria case

As predicted, lots of blowback to the 18-months-for-manslaughter sentence in the case of IDF Sgt. Elor Azaria. Here's a piece that contends Defense Minister Moshe Ya'alon exercised unlawful command influence and argues that the charges should have been disposed of by the accused's commander as a disciplinary offense.

Haaretz took a very different tack in this editorial. Excerpt:

[T]he exceptionally lenient sentence handed down on Tuesday in the case of soldier Elor Azaria – 18 months in prison, plus a suspended sentence and a demotion in rank – represents a serious deviation from the norms expected of the legal system by the military court that heard the case. 

While the verdict, in which the court convicted Azaria of manslaughter, was constructed in exemplary fashion from the fundamental norms of the rule of law, Tuesday’s sentence looks like it was tailored as a kind of political compromise, and thereby stains the fundamental norms that guide the military justice system.

For another disturbing article, critical of the sentence, consider this one by Amira Hass, also for Haaretz.

Sentence comparisons and the Azaria case

Haaretz has run this story by Gili Cohen contrasting the 18-month sentence awarded to Sgt. Elor Azaria for manslaughter with other IDF sentences. It's disturbing. Here's one in the series:

10. A soldier who attacked another soldier with kitchen knives and injured him lightly was sentenced to 15 months in prison.

Bahrain legislators approve military trial of civilians

By a 31-1 vote, the lower house of the Bahraini legislature approved a measure that would permit the military trial of civilians. Details here.

Human rights jurisprudence strongly disfavors the use of military courts to try civilians.

18-month sentence in Azaria case

An Israeli court-martial has sentenced Sgt. Elor Azaria to 18 months' confinement in the shooting death of a wounded Palestinian. Some politicians have now called for him to be pardoned. There is certain to be significant blowback from the lenient sentence.

The Jerusalem Post reports:

Zionist Union Omer Barlev, a former head of the elite Sayeret Matkal unit, called on his fellow politicians to respect the principle of separation of powers and refrain from heating tensions with declarations of calls to pardon Azaria.

Bridge for sale

Even though Global Military Justice Reform has sworn off reporting on every tick of the clock about whether and when Pakistan will revive the military courts that functioned for two years, we continue to monitor developments. Here's a fact that has been largely overlooked in the superficial and unimpressive "debate": the 21st Amendment, which permitted military courts to try civilians, expired on January 7, 2017. That was six weeks ago. Pakistan's legislators knew for two years that it would sunset according to its own terms. The purpose of the measure was to provide a stopgap in the wake of the December 2014 Army Public School massacre while civilian courts were buttressed/reformed/resourced so they could provide the timely, credible and effective administration of justice needed to deter further acts of violence. But funny thing: during those two years -- and now during the month-and-a-half since the sun set on the 21st Amendment, so far as we can tell, no steps whatever were taken to achieve that goal. The civilian courts seem to be functioning (or not) precisely as before. On this record, why should any legislator -- or voter -- believe that the necessary reforms will be instituted during the three years' worth of military courts that are currently proposed, when nothing whatever was even attempted during the preceding 25+ months? Anyone want to buy a bridge?

Reema Omer on revival of Pakistan's military courts

Reema Omer of the International Commission of Jurists has written this unanswerable Dawn opinion piece about the pending proposal to revive Pakistan's military courts. Excerpt:

The assertion that these trials met ‘due process’ makes a mockery of the principle of fair trial. Such trials are not just a violation of the rights of the suspects, they also necessarily bring the finding of guilt by these courts into question. On this ground alone, military trials of civilians must not be extended. 

The second claim, that these courts have helped reduce the threat of terrorism, is also weak. In the last nine days alone, several attacks alleged to be acts of terrorism have killed over 100 people in Pakistan. Even when they were in operation, the country saw some of the deadliest attacks in recent years including at an imambargah in Shikarpur, a university in Charsadda, a park in Lahore, a hospital in Quetta, and a mosque in Mohmand Agency. In this context, the claim that military courts have reduced terrorism, without any evidence or elaboration, is perplexing.

In any event, it is nearly impossible to show any kind of causal link between the types of jurisdiction used to adjudicate serious crime like acts of terrorism and the propensity of those who engage in such crimes to carry out these kinds of acts.

Chilean Congress appropriates 1,000 pesos for the military court

The lower house of the Chilean Congress rejected the annual budget of 8,436,000 pesos for the military court, proposed in the President's message to Congress. Instead it appropriated the negligible sum of 1,000 pesos for 2017, amid congressional criticism of the existence of military justice.

The plenary of the ministers (i.e., members) of the Military Court requested that the Budget Director of the Ministry of the Treasury provide, as soon as possible, the necessary budgetary means required by the Undersecretary of the Armed Forces that will permit the normal functioning of the Military Court, which forms part of the Judicial Branch in Chile and the principal function of which is to hear, as an appeals court, criminal cases against members of the Army, Air Force and Carabineros (Military Police) of Chile.

The only manner in which the requested budget could be reinstated is through the direction of the President, which did not occur at the appropriate time. Consequently, the mixed commission of the Senate approved the budget without the necessary funds for this judicial tribunal.

UK JAG to try CM at AAFB

HHJ Jeff Blackett
The Judge Advocate General

A British Army colonel is to stand trial before the UK Court Martial -- but the trial, involving an allegation of rape of an intoxicated U.S. officer, will be held in the United States (at Andrews Air Force Base). His Honour Judge Jeff Blackett, the Judge Advocate General, will preside.

The Daily Mail claims the trial is unprecedented. That may be so for a UK case, but it is not the first time a foreign court-martial has been conducted in the U.S. Some years ago a Canadian Forces officer attached to the Canadian Embassy in Washington was tried before a Canadian military judge at an American military base in Northern Virginia. (The Editor was a spectator.)

Asma Jahangir and the military courts "debate"

Asma Jahangir

Asma Jahangir, the courageous Pakistani human rights attorney, has spoken out firmly in opposition to the proposal to revive the country's defunct 21st Amendment military courts. According to this article in The Nation:

Human rights activist Asma Jahangir said that the military courts are not [the] ultimate solution to terrorism. 

Talking [to] this correspondent in the Committee Room of the District Bar, she added that the country needs promotion of civil courts with the independence of the judiciary. 

She reached there in connection with a campaign for Lahore High Court Bar Association presidential candidate Ramzan Chaudhry. She said that it’s time to develop a new broad-based policy in the backdrop of the present circumstances. She said that the Pak Army was an institution of the country. The establishment of military courts earlier was not allowed by the superior judiciary unanimously, she said.

Pending issues in Spanish military justice reform

Spain managed to transition peacefully to democracy through a pact among the outgoing military regime and the new democratic elites. The pact included tough negotiations with the armed forces regarding military justice, specifically the scope of military jurisdiction and the procedural autonomy of the military prosecutors and judges. This interesting article (in Spanish) reminds us of the pending issues in both areas: in certain cases civilians can still be tried in military courts, and basic criminal due process rights are still not thoroughly enforced in military courts. The article calls for a new round of reforms of the military justice in Spain.

A resignation in South Sudan

The head of South Sudan's military courts has resigned in protest. According to this account by Reuters' Katharine Houreld, Khalid Ono Loki quit over high-level interference that made it impossible to prosecute cases. Excerpt:

In a letter addressed to the chief of army staff, Loki said soldiers were committing crimes without fear of punishment, particularly officers who were Dinka, the same tribe as the president and chief of army staff. 

"In your relentless endeavors to protect your own ethnicity, and founded on no single law, you always freeze and/or abolish court issuance and rulings even of murder, rape and theft cases," he wrote. 

"You have ordered arrests of civilians in military jails exterior of proper legal channels ... I can no longer continue with such a corrupt, ethicized and unethical institution."

Loki's resignation buttresses allegations by international rights groups that the government permits soldiers to gang-rape and murder civilians with impunity. The U.N. has documented hundreds of accusations of rape involving soldiers in the capital alone.

Postscript. A military justice brigadier general has also quit in protest, as reported here. 

Logrolling in Pakistan?

A party leader in Pakistan has said his party will go along with revival of the 21st Amendment military courts in the interest of making it unanimous and if references to "religion" and "sect" are deleted. Now  comes the interesting part: in nearly the same breath this party leader said "the federal government had also agreed on bringing the tribal areas into the mainstream after five years and the party would withdraw the demand of referendum to decide the future status of Fata only in national interest." Was this party bought off with a promise on an unrelated issue?

Manus manum lavat?

Wake me when it's over

The flow of so-called information out of Pakistan concerning whether to revive the power of military courts to try civilians has proven to be so confused, unreliable and, in the end, a waste of time, that Global Military Justice Reform will no longer report on each tick of the clock. The lack of transparency and the insubstantiality of the repeated claims that the 21st Amendment military courts did a wonderful job cutting back on terrorism are frankly demoralizing. At the moment, we have no idea as to what information parliamentarians demanded or received concerning the administration of justice in actual cases during the two years the 21st Amendment was in effect. Rote, conclusory claims that revival is needed lack credibility. What we are witnessing is a test of the relative raw power of the military and elected legislators, rather than the hammering out of public policy on the basis of facts and evidence. We'll be back on this subject when there is something worth reporting.

Gee, maybe this briefing should have been done in public

. . . As to what exactly was conveyed by the military intelligence officials to the parliamentary leaders there is no information. They must have made a very convincing case which seems to have won over the parliamentary leaders to their side insofar as the revival of military courts is concerned. Since justification for establishment of military courts and their jurisdiction are equally a matter of interest, if not concern, with the legal fraternity and civil society, these deliberations might have been made public. . . .

From this unpersuasive editorial in The Business Recorder

New volume for the military justice bookshelf

Here's an excerpt from a review by A.A. Nofi of Conduct Unbecoming: Fifteen Military Criminals, Rogues and Victims of Justice from the Revolutionary War to Vietnam, by Scott Baron and James Wise, Jr. Excerpt:

Independent scholars Scott Baron and the late James Wise, who have an impressive number of books to their credit either together or separately, take a look at fifteen notably military trials, whether by court martial or tribunal, in American history.

The cases a mix of the well known and the now largely forgotten. Among the more well known are the trials of Henry Wirz, Eddie Slovik, and William Calley, while among the largely forgotten, are members of Washington’s bodyguard who conspired to assassinate general, Cdr. Alexander McKenzie of the “Somers Mutiny,” the “San Patricios” of the Mexican War, the 1942 German “Operation Pistorious” saboteurs, and the Korean War deserter Robert Jenkins. One forgotten trial was that of one very well known American, Paul Revere, accused of disobedience of orders during the Revolutionary War. 

*   *   *

While can quibble about the absence of other cases, perhaps most notably those of FtizJohn Porter or Billy Mitchell, this is a useful read for anyone interested in the workings of the military justice system or in any of the cases examined.

IHAT to close

The Secretary of State for Defence, Sir Michael Fallon MP, has announced the closure of the long running Iraq Historic Investigations Team in the wake of the striking off of Phil Shiner, the solicitor behind many of the claims.

Details can be found here.

A call for reform of Indian military justice

Manoj Joshi

We are indebted to Manoj Joshi for this Outlook column, calling for reform of military justice, especially the appellate aspects, in India. Excerpt:

"Over time, the infirmities of the system have been app­arent, especially since it has no built-in right to appeal and, given its draconian nature, bears instances of its misuse. To deal with this, the government established the Armed Forces Tribunals (AFTs) in 2007. The members here are mixed—senior retired judges and senior retired military officers. 

"The big problem, however, is that the AFTs come under the ministry of defence, instead of the law ministry. So the appeals system is run by the very outfit against whom the appeals are usually entered. The key powers to have their judgements and orders impl­emented have been withheld from the Tribunals, and their rulings are simply ignored, if found inconvenient."

Political three-card monte

According to the occasionally reliable Wikipedia,

Three-card Monte – also known as find the lady and three-card trick – is a confidence game in which the victim, or "mark", is tricked into betting a sum of money, on the assumption that they can find the "money card" among three face-down playing cards. It is the same as the shell game except that cards are used instead of shells.

With that by way of tantalizing background, consider this latest account of what is (or is not) going on in Pakistan with respect to whether military courts should again be given authority to try civilians. Your guess is as good as ours.

Court Martial Appeal Court hearing in Blackman case

Royal Courts of Justice, London

Here is a link to a report on today's hearing in the case of Royal Marines Sergeant Alexander Blackman, with disturbing body cam video.

Can some reader explain why the court has five judges rather than the usual three?

Fallout of the Argüelles case

Argentina will pay $88,000 to a group of soldiers who were held in preventive detention for as long as seven years during the 1980s. In 2014, the Inter-American Court of Human Rights had ruled in the soldiers' favor in Argüelles v. Argentina, as Global Military Justice Reform contributor Christina Cerna reported here. Details here, in Spanish.

Another account: there will be a 25th Amendment in Pakistan

"One more thing"

Consult three news outlets in Pakistan and you will get three (or more) different takes on the state of play concerning revival of the military courts that had been authorized for two years under the country's 21st Amendment. This one, from The Express Tribune, is the most detailed -- and suggests that the train is leaving the station, or already has:

Sources privy to the crucial huddle said the top military leadership led by Director General Military Intelligence Maj Gen Nadeem Zaki Manj and representatives from the Inter-Services Intelligence and Judge Advocate General (JAG) branch briefed the panel about the performance of the military courts. 

After the briefing, participants of the meeting agreed that the performance of the courts was ‘beyond question’, insiders said. They agreed to introduce the 25th amendment to extend the courts’ tenure for two years and decided to further deliberate on the issue in the next meeting on February 16, sources added. According to them, a breakthrough is likely in the next meeting. 

Speaking to The Express Tribune, Awami Muslim League chief Sheikh Rashid said the opposition had reservations over the matter but were willing to evolve consensus on military courts. “Given the circumstances, this has to be done. We hold serious reservations towards the attitude of the government but hopefully things would be okay after the next meeting.”

No word about what the JAG Branch representative(s) said about "the performance of the military courts." Here are the questions they should have been asked. Some participants seem to be going along even though the briefing was deficient:

Pakistan Tehreek-e-Insaf Vice Chairman Shah Mahmood Qureshi reportedly said in the meeting that the opposition parties were fully convinced with the military officials’ briefing but their reservations regarding federal government were unanswered. 

“We acknowledge the sacrifices made by our security forces in making our country safe and secure that it is today. But federal government has failed to answer our questions. However, in broader national interest, we are ready to support if any amendment is introduced to extend military courts’ tenure,” he said, reportedly.

In the immortal words of Detective Columbo (Peter Falk), "one more thing": Why aren't these meetings open to the public?