An unconstitutional interruption of the democratic order?

On May 30, 2016, Luis Almagro, the OAS Secretary General, submitted his first detailed report outlining the crisis in Venezuela.  This report triggered the application of Article 20 of the Inter-American Democratic Charter (Democratic Charter), which requests the convening of the Permanent Council, in the event of an unconstitutional alteration of the democratic regime of a member state.  The OAS, if it decides to invoke the Democratic Charter, can decide to suspend Venezuela from the OAS by a 2/3 vote of its members.  On June 23, 2016, the OAS Permanent Council met, discussed the situation for 2½ hours but took no decision.

On March 14, 2017, Luis Almagro presented his updated report on Venezuela to the Permanent Council.

On March 21, 2017, the opposition bloc of Venezuelan politicians requested the OAS to convene the Permanent Council to consider applying the Democratic Charter to Venezuela.

On Monday, March 27, 2017, in a ruling, the Venezuelan Supreme Court, which has consistently supported President Nicolas Maduro, stripped the members of Congress (who in the majority are opponents of the President) of their immunity, ostensibly for contempt.  At the beginning of 2016, the Supreme Court declared the National Assembly in contempt because the Congress failed to comply with its judgments.  In June 2005, the Criminal Chamber of the Venezuelan Supreme Court authorized the application of military law to civilians.  This new ruling authorized President Maduro to apply military law to  members of Congress. 

On Tuesday, March 28, the OAS debated the situation in Venezuela again, but rather than calling for the application of the Democratic Charter, or the release of political prisoners or the holding of elections, 20 of the 34 active member states voted to support dialogue and the search for solutions (“a road map for Venezuela”).

On Wednesday, March 29, the Venezuelan Supreme Court ruled that as long as the National Assembly remains in contempt of past court rulings, it would take over its responsibilities.   Opponents of President Maduro charged that the Supreme Court had dissolved the Legislature and that a dictatorship has been installed.

Given the latest events, will the OAS be motivated to act more decisively?  

Principaux enjeux et défis du droit militaire canadien

Le droit militaire canadien est en mal de réformes substantives nécessaires pour entrer dans l’ère de la modernité et corriger les injustices qu’il comporte. Immédiatement il m’en vient à l’esprit

une dizaine que je désire porter à l’attention des lecteurs et développer dans une courte série de blogues. Énumérons-les.

      1 -    L’indifférence du législateur;

      2 -    La perte de droits importants pour les personnes accusées et poursuivies devant les tribunaux militaires, y compris des droits constitutionnels;

3 -  L’archaïsme du système de justice militaire pénale;

      

      4 -  L’inconstitutionnalité des procès sommaires;

       5 -  Le traitement accordé aux victimes d’actes criminels;

      

       6 -  La compétence des tribunaux militaires sur les civils;

 7 -  L’absence d’indépendance de la police militaire;

8 -    La procédure de griefs et ses interminables délais;

9 -  L’Opération Honneur annoncée en grande pompe pour lutter contre les agressions sexuelles; et

       10 - Les enquêtes internes sur les décès de militaires.

New book on Canadian military justice

There is a new book by two of Canada's leading military justice scholars, Justice (ret) Gilles Létourneau and Professor Michel W. Drapeau. Behind the Times: Canadian Military Criminal Justice can be downloaded for free from http://mdlo.ca/wp-content/uploads/2013/05/Behind-The-Times.pdf.

The book comes as the Office of the Judge Advocate General has been conducting a review of the Canadian military justice system. In the authors' view, the terms of reference for that review are too narrow, and a more comprehensive review is required. They hope that Behind the Times may inspire and assist in understanding the challenges the system faces, and some areas in need of urgent reform.

Hon. Gilles Létourneau

Prof. Michel W. Drapeau

The Canadians are comi--are here

Military.com informs us that:

The Pentagon has reached into the private sector to find an overseer of the Guantanamo war court, selecting one-time FBI lawyer Harvey Rishikof for a job that has been held by retired general officers or lawyers with Department of Defense experience.

The Convening Authority for military commissions has responsibilities that range from combing through U.S. military officers' personnel records for jury pools to deciding whether to fund defense staff, travel and experts. The Convening Authority also can negotiate plea agreements with war-on-terror captives at Guantanamo Bay, Cuba, and decide whether the Pentagon prosecution can pursue a death-penalty case.

Rishikof, [was] born in Canada but [is] a U.S. citizen[.]

Return of military courts in Ukraine?

Ukraine News Agency reports:

President of Ukraine Petro Poroshenko plans to propose the restoration of special military courts, according to current international practice, since military experts, rather than civilian experts, should evaluate the actions of military commanders in a combat situation. 

"First of all, being a commander-in-chief, I can not remain silent after the verdict of one of the civil courts that sentenced the military general [Viktor Nazarov] to serve seven years imprisonment term," Poroshenko wrote on his Facebook page on Tuesday. 

He noted that over the past three years the Ukrainian army has brought up a new generation of "self-motivated, and sometimes desperate commanders who provide defense for our Ukraine." 

"It would be foolish to restrain them with judicial decisions from the point of view of ensuring the defense capability and security. That's exactly why I plan to propose the restoration of special military courts in accordance with existing international practices. 

Military experts, military professionals and military judges, rather than civilians, should evaluate the actions of commanders in a combat situation. At least, now, while this terrible insidious hybrid war is going on," the president said. 

"Justice, of course, must be achieved at court, but the decisions of military courts will not be put in doubt by our soldiers," the president said. 

He noted that the Ukrainian military fulfill their duty to protect Ukraine, sometimes at the cost of their own lives. "I understand the grief of the families. But the enemy who has treacherously invaded our land is truly responsible for the death of our heroes. The only justification for these deaths is the approach of an inevitable victory," Poroshenko wrote. 

As earlier reported, on March 27 Pavlohradsky court found guilty and sentenced to a seven-year jail term Ukrainian General Viktor Nazarov, who was charged with dereliction of duty leading to the crash of the Il-76 military transport plane of the Armed Forces of Ukraine during the summer of 2014. 

As it was reported, during the night of June 14, 2014 a hand-held rocket launcher fired at the transport plane as it was landing at Luhansk airport. There were 40 Ukrainian servicemen aboard and nine members of the plane's flight crew. All died. 

The Verkhovna Rada of Ukraine created a special commission to look into the reasons for the crash. General Nazarov was thereafter served a notice of suspicion that he bore responsibility.

L'injustice des procès sommaires au Canada

This text highlights with respect to ordinary criminal law offences some of the glaring injustices of the summary trials in the Canadian military justice system as well as the resulting flagrant violations of the constitutionally entrenched Canadian Charter of rights and freedoms.

Le système de procès sommaires est demeuré inchangé au Canada au cours des 328 dernières années. Sa caractéristique première et principale: un déni pour l’accusé de droits fondamentaux pourtant offerts aux accusés traduits devant les tribunaux civils.

Un procès sommaire au Canada n’est régi par aucune règle de preuve. L’accusé est un témoin contraignable et peut être contraint de s’incriminer malgré le privilège contre l’auto-incrimination garanti par la Charte canadienne des droits et libertés de la personne. Son silence peut déboucher sur une inférence négative et préjudiciable. Son époux ou épouse ne bénéficie pas du privilège rattaché aux communications entre époux faites durant le mariage, faisant ansi fi du privilège conféré par la Loi sur la preuve au Canada.

Toujours dans la même foulée, le oui-dire et les témoignages d’opinion sont admissibles. Il n’existe pas de transcription des procédures et des témoignages qui ont cours et lieu à un procès sommaire. Seules les sentences et les peines sont consignées sur un document sommaire. Comme si cela n’était pas suffisant, il n’y a pas de droit d’appel à un tribunal judiciaire soit à l’encontre d’un verdict rendu par un Commandant, soit d’une sentence qu’il a imposée qui priverait l’accusé de sa liberté.

L’accusé n’a pas droit d’y être représenté par avocat. En lieu et place, le Commandant doit lui assigner un de ses officiers subalterns pour l’aider à préparer sa défense. À l’instar de son Commandant, cet officier n’a pas de formation légale. Il n’a aucune obligation de confidentialité à l’égard de l’accusé et il va de soi que le privilège avocat-client ne s’applique pas.

Le procès sommaire se déroule sous la présidence du Commandant qui,n’ayant pas de formation légale, doit se débrouiller avec quelques notions procédurales de base qui lui sont fournies par le bureau du Juge-avocat général.

La validité constitutionnelle des procès sommaires a été ouvertement remise en question par plus d’un expert. Comme il n’y a pas d’appel à un tribunal judiciaire des décisions qui y sont rendues, la contestation constitutionnelle doit être exercée par les voies de recours du droit administratif.

Le procès sommaire s’écarte des principes les plus fondamentaux et élémentaires d’équité. De ce fait il ne saurait devoir, encore moins pouvoir, continuer d’exister dans sa forme actuelle puisque personne ne doit et ne peut être privé de sa liberté, sauf au terme d’un procès juste et équitable présidé par un tribunal compétent, impartial et indépendant de la chaîne de commandement. Ces trois caractéristiques qui sont gages de justice sont précisément ce qui manque aux procès sommaires.

Le Canada pourrait et devrait faire le nécessaire pour mettre en place la réforme, ou une réforme analogue, effectuée par le Royaume-Uni et d’autres pays, soit créer une Cour d’appel des procès sommaires où l’accusé retrouve l’ensemble des droits normalement conférés à une personne poursuivie pour une infraction de nature pénale. Il est aussi loisible au législateur de décriminaliser la compétence attribuée aux procès sommaires en limitant celle-ci à des infractions purement disciplinaires ne pouvant déboucher sur une peine de détention ou une peine qui donne naissance à un dossier criminel.

Sgt. Blackman's sentence reduced to 7 years

Royal Courts of Justice, London

The Court Martial Appeal Court today resentenced Royal Marines Sgt. Alexander Blackman to seven years imprisonment, following the court's earlier decision to sustain a conviction only of manslaughter, vice murder. He may be released soon given the normal policy of release after service of half the sentence. The court's sentencing decision can be found here. The court also released its reasons for judgment on an application by the media for the release of video clips. That can be found here.

Military related disputes in the Chinese courts

On March 12, Supreme People's Court (SPC) President Zhou Qiang gave his report on the work of the people's courts to China's legislature, the National People's Congress (NPC).  For the first time (in at least several years), he reported on the number of certain military-related cases. The single sentence (in Chinese) requires some decoding for readers outside of the Chinese legal profession:

Deeply developed military rights related work. Vigorously promoted the Xinyang model and the East Henan and Anhui models, vigorously promoted the construction of civilian/military coordination mechanisms to protect military related rights in each military area. Military courts and civilian courts tried 1678 cases of destruction of military facilities, leaking of military secrets, destruction of military marriage etc., effectively protected the legal rights and interests of national defense security and military personnel and dependents. (深入开展涉军维权工作。大力推广涉军维权工作“信阳模式”“鄂豫皖模式”，积极推进各战区涉军维权军地协作机制建设，军事法院和地方法院依法审理破坏军事设施、泄露军事秘密、破坏军婚等案件1678件，切实维护国防安全和军人军属合法权益.)

A bit of amateur decoding of this sentence follows:

• The Chinese military courts, unlike the civilian courts, do not publish regular reports on the cases that they hear. Therefore we cannot not know how many of which type of cases were tried.  We do know that Chinese military legal academics would like to see more transparency. 
• This observer surmises that most of the cases were in the "etc." category, i.e., involved civil disputes over the termination of paid services by the military.  Some of these cases have been previously reported on this blog.  The Tianjin courts dealt with 418 (81% settled)   and searches of reports in local courts reveal dozens of cases, with articles stressing giving these cases priority, settling them and avoiding confrontation with disgruntled civilians.A report on the accomplishments of a Beijing court in supporting the military reveals an example of the type of case that end up in court--a real estate development project involving a military party in which the developers had not issued ownership certificate to owners, making 100 purchasers very angry. The Beijing court, which designated a group of judges to deal with military related cases, resolved the dispute successfully.
• On cases of destruction of military facilities, a search of one of the Chinese judgment databases revealed 11 cases in 2016, including a case in which a teenaged boy stole electric cable from a military installation (he was given a suspended sentence and another one in which a man used a slingshot to damage a military guardpost).
• No cases involving the crime of the destruction of military marriage could be found in any of the judgment databases, but the Shanghai-based English-language outlet Sixthtone published this report on a Beijing case reported in the press. Research by this observer on this issue revealed a 2001 document issued by the General Political Department of the People's Liberation Army on Marriage Law questions restricting who, how, and when officers and soldiers can marry, and forbidding cohabitation before marriage. FAQ on the document found here--"are you dating? Make a report! Are you planning to get married, make a report! So you want to get divorced? You don't make the final decision.
• The only cases involving the leaking of military secrets found in the judgments databases were a few rulings on applications for parole or sentence reduction of persons previously convicted of leaking military secrets.
• The Xinyang and East Henan and Anhui models appear to be models to involve the local military/Party/government authorities to prioritize and resolve favorably military/civilian disputes.  

In January, 2017, the SPC issued a policy document on providing judicial protection to the termination of paid services by the military/armed police. As is usual with military-related legal documents, the full text has not been released. The summary contains few specific details, and primarily stresses that the courts should support the military and armed police in terminating paid services and should work with local authorities in doing so.

High Noon in Islamabad

The Senate of Pakistan is to vote today on a constitutional amendment reviving military courts' power to try civilians. A two-thirds vote is needed.

Postscript: The Senate passed the measure by a vote of 78-3. Unless again extended (as one must sadly predict), it will expire on January 6, 2019. Here is the Senate bill.

Canadian summary trials -- an absence of rights for the accused

The Summary Trial system in use by the Canadian Armed Forces has fundamentally remained unchanged in 328 years. It is mostly characterized by an absence of rights for the accused. Its constitutional validity has been openly questioned by experts. It deviates from the norms of fundamental fairness and that it should not be tolerated or allowed to continue to operate since no one should be deprived of his liberty, except by a competent, independent and impartial tribunal. The summary trial lacks all of these characteristics.It should not be tolerated or allowed to continue to operate. 

The Summary Trial process is not governed by any rules of evidence including the non-compellability of the accused to be witness against himself, adverse inference from the accused silence or spousal privilege. There might also be reliance on hearsay and opinion evidence. There are no transcripts of summary trials. Only the sentence and the punishments are recorded on a summary sheet. From this, there is no right to appeal a verdict or a sentence imposed by the Commanding Officer who could deprive the accused of his liberty. 

In lieu of counsel, the Commanding Officer must appoint an "Assisting Officer", one of his juniors, to 'assist an accused in mounting a defence." The "Assisting Officer" has no duty of confidentiality towards the accused, and there is no solicitor-client privilege. 

The Commanding Officer of the accused normally presides the summary trial.  He has no legal training. Instead, the Commanding Officer receives some basic procedural training provided by the Office of the Judge Advocate General.

The constitutional validity of summary trials has been openly questioned by experts. 

Canada could and should adopt the solution implemented by the United Kingdom and others by establishing a Summary Appeal Court where the accused is given the full panoply of rights. Alternatively, Canada could de-criminalize the summary trial process so that only disciplinary issues would be addressed at a summary trial. This approach would necessarily exclude  any punishment of detention or any other penalties giving rise to the creation of a criminal record.

This matter is addressed in the book "BEHIND THE TIMES" by the Hon. Gilles Létourneau and Prof. Michel Drapeau.

The gender perspective at work in the military

For the first time a member of the Argentine military was removed from service (entailing loss of retirement benefits) in a disciplinary action for domestic violence at home, against his partner, also a member of the military.  The couple lived together for several years but in 2016 when they were in the process of separating, she, a corporal, 32 years old, arrived at work one day with her arm in a cast.  She told her boss that her partner, an Army major, 42 years old, had broken her arm, having seized her as if she were an enemy in combat during an argument in the house that they shared.  Her boss presented the case to the Office of Inter-family Violence of the Army, created during the government of Nestor Kirchner, under the first female Minister of Defense in Argentina, Nilda Garré, where a gender perspective was incorporated into the restructuring of the Armed Forces.  The corporal recounted the facts and a file was opened and she began to receive psychological help.

A military disciplinary tribunal applied the maximum punishment in September and the major appealed.  The General Court of Discipline, presided over by General Santiago Ferreyra, the second head of the Army, ratified the lower court’s decision.  The opinion is confidential.  The decision is paradigmatic in  that the Argentine Armed Forces has traditionally treated similar acts involving a couple in the military as “a matter of private life” to which the Disciplinary Code could not be applied.  If a husband beat his wife it was not considered an offense, because of the macho nature of the military world.  This decision takes such acts out of the realm of private life and transforms them into matters of public policy.

Canadian military justice -- by the numbers

Reforms of national military law is part of a worldwide movement in democratic countries; meanwhile Canada stands still. The worldwide trend is to transfer jurisdiction over criminal offences to civilian courts. This has been done in Austria; Belgium; Czech Republic; Denmark; France; Germany; Finland; Honduras; Italy; Japan; The Netherlands; Sweden; Switzerland; Tunisia etc. The objective being to ensure a judicial process free from the chain of command's interference.  Service members deserve a system of justice worthy of the Canadian principles that they have dedicated their lives to protect.  They deserve to have a fair and impartial system of justice that is transparent and accountable. This is currently not the case.

For the time being Canada appears to be satisfied with the 'status quo' in the result that its relatively small professional force consisting of 65,000 regulars is subject to a Canadian military penal system that is clearly behind the times. We will examine this in more details in subsequent posts.

What follows is, in point form, the structural highlights of the Canada's current military justice system.

• In 2014-2015, there were 47 courts-martial. The three offences tried most often were: a) Conduct to the Prejudice of Good Order and Discipline; b) Absence without leave; c) Failure to comply with conditions. The conviction rate was 87.2 per cent. [Over the past years, there were on average 70 courts martial per year.]

• In 2014-2015, there were 721 summary trials. The three offences tried most often tried were: a) Absence Without Leave; b) Conduct to the Prejudice of Good Order and Discipline; c) Drunkenness. The conviction rate was 87.38 per cent. Two notices of appeal were filed by the convicted with the Court Martial Appeal Court of Canada (CMAC).  One request for leave to appeal to the Supreme Court of Canada was filed by the Minister who also filed an appeal as a matter of right to the Supreme Court of Canada. 

• There are 4 full-time military judges and a Court Martial Administrator. The Chief Military Judge wears the rank of Colonel. The three other judges serve in the rank of lieutenant-colonel. 

• One of the military judges’ position is currently vacant. Given the reduced trial workload this year, the three remaining military judges presided each over an average of 15 courts martial. 

• This has to be considered as being an extraordinary low workload which cannot justify the significant expenditures to create and operate a separate judiciary. 

• The importance of cost-saving measures and efficiency improvements alone suggests that the time has come to eliminate these specialized courts and to transfer their jurisdictions to civilian courts. 

• The Judge Advocate General (JAG) wears the rank of Major-General. The JAG is not a judge. He does not perform any judicial functions. He is a legal advisor. The JAG reports directly to the Minister of National Defence.

• There is a full-time Director of Military Prosecutions who serves under the general supervision of the JAG who is the head of the legal chain of command. The JAG is responsible for the promotions, postings and career developments of military lawyers acting as prosecutors.

• There is a full-time Director Defence Services Counsel who also serves under the general supervision of the JAG who is the head of the legal chain of command.The JAG is responsible for the promotions, postings and career developments of military lawyers acting as defence counsel.

• There are approximately 170 military lawyers in the Regular Force. All serving under the command of the JAG. 

• There are approximately 1,235 Military Police in the Regular Force consisting of 154 officers and 1,081 non-commissioned members

• In 2015, the MPs conducted approximately 11,500 (General Occurrences) investigations.

• The Canadian Forces National Investigative Service (CFNIS) investigates serious and sensitive matters including criminal offences against property and persons including civilians deployed with the military.

• The military operates a Service Prison and Detention Barracks (SPDB) located in Edmonton. It provides imprisonment and detention services. The SPDB is not subject to reviews conducted by the Correctional Investigator of Canada.

For a further discussion see "BEHIND THE TIMES" by the Hon. Gilles Létourneau and Prof. Michel Drapeau. 

Duterte watch

Philippine President Rodrigo Duterte is talking martial law . . . and military courts. Here's a news report.

AW Anniversary

On this day in 1774, George III signed the Articles of War. They became the model for the American Articles enacted by the Continental Congress on June 30, 1775, and are the ancestor of the Uniform Code of Military Justice as well as the military justice laws currently in force in a number of countries.

Cameroon's misuse of military court

Cameroon is trying an Anglophone barrister in a military court that will meet in secret, according to this account. Excerpt:

Barrister Agbor-Balla was arrested on 17 January 2017 and held incommunicado as a result of his involvement in protests and strikes by anglophone lawyers and teachers in West Cameroon against what they perceive as the marginalisation of the anglophone minority. The barrister was charged with a number of offences, including incitement to secession, civil war and revolution, and 'Hostilities against the Fatherland' - some of which carry the death penalty on conviction. On the same day, the Cameroon Anglophone Civil Society Consortium over which Barrister Agbor-Balla presided was outlawed. 

IBAHRI [International Bar Association Human Rights Institute] Co-Chair Baroness Helena Kennedy QC reiterated: 'The arrest of Barrister Agbor-Balla by military authorities that now intend to prosecute, judge and sentence him is deeply troubling to the IBAHRI and the international community. That the military tribunal may be held in closed session is further cause for alarm. It is for these reasons that the IBAHRI is again compelled to intercede on Barrister Agbor-Balla's behalf, respectfully asking the Government of the Republic of Cameroon to abide by the United Nations Basic Principles on the Independence of the Judiciary and ensure that judicial proceedings are conducted fairly.' 

She added: 'We also draw the government's attention to the rights enshrined in the African Charter on Human and People's Rights, as well as the UN's Basic Principles on the Role of Lawyers, that have so far been denied to Barrister Agbor-Balla. These include his rights as an individual and a professional to personal liberty, free expression, association, protection from arbitrary arrest and the right to a fair trial.'

Guantanamo as a precedent

From yesterday's proceedings in the Senate of Pakistan:

PML-N’s Lt Gen (retd) Abdul Qayyum had a totally supportive view of the government's stance and said that there was no harm in setting up military courts for speedy trial of hardcore terrorists, as it happened in developed countries like the US in circumstances Pakistan was passing through.

The News International has this detailed account of what sounds like a remarkable day in Islamabad. 

By the numbers, in the Senate of Pakistan

[T]he government later claimed it was short of a couple of votes. Independent observers, however, dispute this claim. The Free and Fair Election Network’s parliamentary observers counted presence of 45 members at the onset of the proceedings and 46 by the end. In the 104-member upper house, at least 69 votes are required to pass an amendment in the Constitution.

From this report in The Express Tribune

Do you know your chain of command?

The decision in Director of Military Prosecutions v. Donohoe [2017] IECA 92 (per Edwards, J.) is now available here thanks to the Courts Service of Ireland. Among other issues -- all decided against Comdt. Nile Donohoe -- was whether he was fairly on notice of his military chain of command and hence could have registered an objection to the membership of the panel before which he was tried in a timely fashion. The entire decision is worth reading for its window on contemporary Irish military justice, including appellate and collateral review.

Perils of Pauline in Islamabad

Remember the constitutional amendment the Pakistani National Assembly passed by the required supermajority? Well, it was supposed to sail through the Senate today. Wrong! The Senate was unable to muster the necessary votes to approve it, and the matter will be brought up again next week. The Army Act amendment that goes along with the constitutional amendment was passed because it did not require a supermajority. Details here.

No decision could be reached on the 28th Amendment Bill 2017, which pertains to the revival of military courts for another two years, due to the absence of some members and non-seriousness of a few others. 

Only 67 members were present in the Senate, whereas for two-thirds majority to be achieved at least 69 members are needed. The voting on the 28th Amendment has subsequently been postponed to next Tuesday, March 28. 

The 28th Amendment has already been passed by the National Assembly, when 255 NA members voted in favour while only four voted against the bill on Tuesday. 

The bill recommends a two-year extension in the term of military courts. It also demands implementation of the law of evidence during the proceedings. 

The other points of the bill recommend that the suspect be brought in front of a court within 24 hours and be entitled to have a lawyer of their choice.

Presumably there will be frenzied politicking, pro and con, between now and March 28. 

One down, one to go

The lower house of the Pakistani Parliament today passed a constitutional amendment and related legislation reviving military courts for two years (actually less, since the two years are deemed to start from the January 7, 2017 expiration of the 21st Amendment). The measures now go to the Senate, where a 2/3 vote is needed for the constitutional amendment. Here's a good report on a bad pair of laws.

Global Military Justice Reform awards the National Assembly the George III award for retrograde legislation.

New book from Joshua Kastenberg

University of New Mexico law professor Joshua E. Kastenberg has a new book that will be of considerable interest to military justice mavens. From the law school's announcement:

A new book by University of New Mexico School of Law Professor Joshua E. Kastenberg is the first published history to explore the military legal expansions of Major General Enoch Crowder, Judge Advocate General of the U.S. Army. Kastenberg also examines the development of the laws of war and the changing nature of civil-military relations. 

“To Raise and Discipline an Army: Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I,” has been released by the Northern Illinois University Press and is available from various book stores, including Amazon. 

In 1915, Crowder convinced Congress to increase the size of the Judge Advocate General’s Office—the legal arm of the United States Army—from thirteen uniformed attorneys to more than four hundred. Crowder’s recruitment of some of the nation’s leading legal scholars, as well as former congressmen and state supreme court judges, designed many of the laws and policies and helped legitimize President Woodrow Wilson’s wartime military and legal policies. 

The book was reviewed by Fred L. Borch, regimental historian and archivist, US Army Judge Advocate General’s Corps, who comments, “No book has ever told the story behind this remarkable expansion of military legal talent. Kastenberg shows that the influential work of army lawyers significantly altered civil-military relations in the US. He should be commended for his exhaustive use of primary sources.” 

Burrus M. Carnahan, lecturer in law, The George Washington University, former judge advocate, US Air Force, also reviewed the book. “This is an original and significant contribution to the fields of legal history and US military history, thoroughly researched and clearly written,” said Carnahan. 

Prior to joining the UNM Law School faculty in September 2016, Kastenberg had a 20-year career as a lawyer and judge in the U.S. Air Force. He has published several books on law and the military, including Shaping US Military Law: Governing a Constitutional Military.

Some progress in Lebanon

Human Rights Watch reports that the Lebanese Military Court is backing down in part on the trial of civilians:

In a positive step, Lebanon’s Military Tribunal today declared that it does not have jurisdiction to try 14 civilian protesters on the charges of rioting and destruction of property. Their cases will be referred to civilian courts instead. The protesters, who were arrested during demonstrationsover a waste crisis in the capital Beirut in 2015, were charged in military court and had been facing up to three years in prison. 

Civilians should not be tried in military courts, and the court’s decision is a step in the right direction. It may also spell good news for at least 24 other protesters who are awaiting charges before military courts. 

In January, a Human Rights Watch report exposed the due process and international law violations inherent in trying civilians before military courts in Lebanon. Those who have stood trial at military courts describe incommunicado detention, interrogations without a lawyer present, ill-treatment and torture, the use of confessions extracted under torture, decisions issued without an explanation, seemingly arbitrary sentences, and a limited ability to appeal. 

In Lebanon, military courts still have broad jurisdiction over civilians, including children. But defendants, lawyers, and Lebanese human rights groups say state authorities use this jurisdiction to intimidate or retaliate against people for political reasons, and to stamp out dissent. Outspoken activists, journalists, and human rights lawyers have all been tried in military courts. 

Civil society organizations in Lebanon have long advocated for removing civilians from the jurisdiction of the military courts because of concerns about the lack of fair trials there. 

While today’s ruling is welcome news, there is still a long way to go. Five of the 14 activists still face charges of resisting arrest and remain on trial in military courts, where their right to a fair trial is not guaranteed. Their cases should be transferred to civilian courts as well. Military courts have no business trying civilians, and Lebanon’s parliament should finally put a stop to this practice by passing a law to remove civilians from the court’s jurisdiction entirely.

Military ethics master's program at Case Western Reserve

Case Western Reserve University has announced the creation of a program leading to the degree of Master of Arts in Military Ethics. Details can be found here. The deadline for applications is April 10, 2017.

A bespoke appellate court

The manslaughter case of IDF Sgt. Elor Azaria has been appealed to the Military Court of Appeal by both the prosecution and the defense. This article reports that the appeals will be heard by a panel of five judges: the chief judge of the court, two civilian judges, and two nonlawyer general officers.

Perhaps some reader in Israel can comment on how unusual this is. (Please post under your real name.)

Marines United

Jared Keller has a worthwhile report on Task & Purpose about the Marine United phenomenon. This is a moving target, and one that may cast a long shadow over American military justice for some time. Other news accounts indicate that many participants have already been identified. No word yet on people lawyering up.

What is to be done (about peacekeeper discipline)?

Francesco Presutti of the Center for Human Rights and Global Justice at NYU Law School is to be congratulated on this thoughtful report on the UN's latest plan to combat indiscipline among peacekeepers. Excerpt:

Certainly, in the end Member States always overcome their divisions and unite in condemnation of sexual exploitation and abuse. In 2015 and 2016, the Fifth Committee (the main committee of the General Assembly entrusted with the administrative and budgetary questions of the UN), and the Security Council successfully agreed to important resolutions, which dealt with some key aspects of sexual abuse and exploitation. Then, on March 10, just one day after the release of the secretary-general’s report, the General Assembly hastily adopted a rather anodyne resolution, its first plenary resolution on this subject. The policy of “zero tolerance” that all these resolutions advocate, however, is bound to remain empty rhetoric if more effective measures are not undertaken. Therefore, it is right for the secretary-general to mobilize Member States at the highest level, and his request to the Legal Counsel of the UN to explore ways to press Member States to exercise criminal jurisdiction for both uniformed and civilian personnel is a welcome step in the right direction. Ensuring criminal accountability is an integral part of the international community’s proclaimed zero-tolerance policy. The military personnel of Member States’ peacekeeping forces, in particular, who are immune from the jurisdiction of the host country and subject to the contributing States’ exclusive jurisdiction by virtue of the applicable Memoranda of Understanding, must not operate in an area of impunity. In spite of countless reports, studies and proposals to close this gap, such as the longstanding option of an international convention in connection with crimes committed in peacekeeping operations, a proper legal framework has not yet been created to address this issue effectively, and even in this latest report the matter is not sufficiently developed.

Transparency at the STM

The Supreme Court of Brazil has ordered the Supreme Military Court to make available to the public the files and audio of its proceedings during the 1964-85 military dictatorship. Details here, in Spanish. The military court had resisted in the interest of respecting the privacy of those who were accused.

The bar speaks up, finally

Somewhat belatedly, several major bar organizations in Pakistan have spoken up in opposition to the revival of military courts. It's hard to tell given fragmentary and unreliable news reports, but that bus may have left . . .

Thanks, merci and gracias

Many thanks to the contributors who stepped into the breach during the Editor's absence in India last week. And special thanks to contributor Major Navdeep Singh for the excellent program he co-chaired in Chandigarh on the interrelated topics of military justice and tribunalization. At left, Brig. Gen. Jan Peter Spijk (President of the International Society for Military Law and the Law of War, center) and Global Military Justice Reform contributor Frank Rosenblatt (right).

Military Justice In Germany

Criminal Offenses

Members of the German armed forces are subject to the civil criminal code and are tried for common criminal offenses in the civil court system. There are no military correction facilities; incarcerated military offenders serve their sentences in ordinary civilian prisons.

Therefore, all criminal offenses perpetrated by soldiers in Germany are adjudicated by courts of ordinary jurisdiction. Germany also exercises criminal jurisdiction over all offenses perpetrated by German soldiers while they are deployed abroad.

German criminal law consists of offenses governed by their Criminal Code, [Strafgesetzbuch] among them are offenses specifically applicable to soldiers, such as avoidance of military service or sabotage.

Soldiers enjoy the same civil rights and liberties possessed by other citizens. They are permitted to take an active part in political life, be members of political parties, and join trade unions and professional associations.

Disciplinary Offences

Offenses of a specifically military character committed by members of the Bundeswehr are tried in two military court divisions of the Federal Administrative Court and by three military disciplinary courts having a total of twenty-nine chambers. A civilian professional judge presides over each chamber, assisted by honorary military judges.

The chambers are the courts of first instance for disciplinary court proceedings against soldiers. The military courts of the Federal Administrative Court are the courts of appeal, each being composed of three civilian judges and two honorary military judges.

Sentences range from discharge from service to financial penalties to reduction in rank. The lowest level of offense, such as disobedience or unauthorized absence, may be dealt with informally in a soldier’s own unit.

Happy Saint-Patrick's Day to everyone

Found memories and special thoughts for my late uncle and god-father William Kelly from Québec City, a WW II veteran.

Comments policy

One of Global Military Justice Reform's very few rules is that we do not public comments that are anonymous or pseudonymous. So by all means, go ahead and comment, but you will need to use your real name. Comments are moderated. Thanks.

World Justice Project -- Rule of Law Index

The World Justice Project is a independent, multidisciplinary organization working to advance the Rule of Law around the world. It publishes a World Justice Ruleof Law Index. The 2016 edition covers 113 countries and jurisdictions relying on more than 110,000 household and expert surveys to measure performance against 44 indicators and 8 primary rule of law factors. The index is built from the assessments of 1,000 respondents per country and local experts.

Selected 2016 rankings are as follows:

• Denmark; Norway; Finland; and, Sweden as the four top countries.
• Germany (6^th); United Kingdom (10^th); Australia (11th); and, Canada (12^th).
• Japan (15th); United States of America (18^th).  
• China (80^th); Russian (92th);Turkey (99^th).
• Pakistan (106^th) Cambodia (112^th). 
• Venezuela (113^th) ranks last.