Wednesday, May 31, 2017

Ugandan MP's jurisdictional challenge postponed

A challenge by a Member of Parliament to the jurisdiction of a Ugandan court-martial has been postponed until a decision can be made whether to assemble a full Constitutional Court bench of five judges. Details here. The court-martial continues to be stayed pending review in the civilian courts. Excerpt:
[Michael] Kabaziguruka, who was present in court, recently petitioned the Constitutional Court seeking a declaration that the General Court Martial (GCM) and other military courts were unconstitutionally established. 
He contends that these courts are merely tribunals set up for purposes of disciplining errant military officials and not courts of law within the meaning of the Constitution. 
Kabaziguruka therefore wants the powers of the military courts limited to only disciplining soldiers rather than charging them (soldiers) and civilians with offences. He also wants court to award him costs of the petition. 
He accuses the 6th Parliament of over stepping its powers by creating section 197 of the UPDF Act that establishes the GCM other than a mere tribunal to instill discipline among UPDF soldiers.
The African Charter on Human and Peoples' Rights has been interpreted to prohibit the trial of civilians by military courts. 

Military justice reform proposed in Nigeria

Nigerian Minister of Defence Mansur Dan Ali and Chief of Defence Staff Gen. Gabriel Olonisakin have announced their support for major changes in the Armed Forces Act, including addressing the problem of command influence over courts-martial and the human rights of military personnel. This report lacks details, but it is clear that major steps are under consideration.

If any readers are privy to details, please comment (under your full name).

Tuesday, May 30, 2017

Military Jurisdiction in Spain

In a recent interview given in Ceuta by Judge Clara Martinez de Careaga, the first female judge of the Military Chamber of the Spanish Supreme Court, she underlined the constitutional nature of military jurisdiction in Spain. Unlike France, where military jurisdiction in peacetime has been done away with, in Spain, since 1987, it has been integrated with the rest of the ordinary jurisdictions into the Judicial branch of government. The military chamber is Chamber V of the Spanish Supreme Court and is comprised of a President and seven judges.  Four of the judges are career judges and the other four are judges from the military.

Judge Martinez de Careaga pointed out that military jurisdiction has been evolving and reforms have been introduced, most recently the new Military Criminal Code which establishes that appointments are made by the General Council of the Judicial  Branch and not by the Ministry of Defense, as in the past.  Military Jurisdiction concentrates strictly on military matters.  In addition, she noted, the military itself has been adapting to modern times such as participation in international missions, the creation of the Military Unit of Emergencies and the military reform which reorganized the Army along territorial lines.

Dissent and recusal

There's been a mighty odd development in a case before the Supreme Court of Pakistan. A challenge to three military court convictions was referred to a three-judge panel. All three judges happened to have dissented in the 2015 case that upheld the 21st Amendment to the Constitution, which permitted military courts to try certain offenses by civilians. This article tells the tale:
The bench, headed by Justice Asif Saeed Khosa, was hearing a petition filed by three suspects Nadeem Abbas, Jehangir Haider and Zeeshan, who were handed over death sentence by a military court in Quetta in August 2016 and are locked up in the Mach prison. 
The three judges, including Justice Dost Muhammad and Justice Qazi Faez Isa, said that they cannot take up the case as they had dissented in the verdict of the case against military courts in 2015. 
The Supreme Court on August 5, 2015 had rejected all applications challenging the 18th and 21st Constitutional amendments, ruling in favour of the establishment of military courts in the country. 
Justice Khosa while explaining the reason for not taking the case said that the three judges had written a dissenting note in the military courts verdict, which had termed the establishment of these courts in conflict of the Constitution. This is why none of us would want to hear the case, the judge said.
The panel has returned the case to the Chief Justice for assignment to other justices. If stare decisis has any force, the 2015 -- right or wrong -- would govern unless overturned by the full court. It is not at all clear why the assigned panel did not just decide the cases and, in the process, express whatever misgivings they might have had. The mere fact that they were outvoted two years ago should not have caused them to recuse.

Readers in Pakistan are invited to comment or clarify.

Monday, May 29, 2017

The dispute continues into the 2000's

MG Enoch H. Crowder
Fred L. Borch, U. S. Army JAGC Regimental Historian and Archivist, Military Justice in Turmoil: The Ansell-Crowder Controversy of 1917-1920.  The Army Lawyer, March 2017.

We talk of the current tumultuous times in modern military justice practice.  Politicians have resurrected the question of who decides to prosecute a service member.  We have studied the history of the Uniform Code of Military Justice. [1]  Here's something to remember.
While judge advocates today might think otherwise, calls for
BG Samuel T. Ansell
changes to the military justice system are nothing new. What follows is a brief look at the first major—and public— controversy about the proper role of the commander in the military criminal legal process and how courts-martial should be structured and operate. Major General Enoch H. Crowder, the Judge Advocate General (tJAG) between 1911 and 1923, generally favored the status quo, although he conceded that some changes to the Articles of War (the predecessor of the Uniform Code of Military Justice (UCMJ)) were necessary. Brigadier General Samuel T. Ansell, the Acting Judge Advocate General between 1917 and 1919, however, wanted radical reform. His fundamental disagreements with Crowder about the future of the court-martial system resulted in what has been called the ‘Crowder-Ansell Dispute.’ [2]
[1] A contemporaneous Background on the UCMJ (1959), for comparison.
[2] Edward M. Morgan, Existing Court-Martial System and the Ansell Army Articles.  29 YALE L. J. 33 (1919).

Sunday, May 28, 2017

A hot bench in Tel Aviv

Yoav Zitun, writing in Ynet, has an excellent from-the-courtroom account of the latest appellate hearing in the case of IDF Sgt. Elor Azaria. Excerpt:
A military judge on Sunday questioned why IDF soldier Elor Azaria, who was found guilty of manslaughter after shooting dead a neutralized terrorist, was appealing his conviction and 18-month sentence, calling on both Azaria and the military prosecution to withdraw their appeals.

Azaria's lawyer, Yoram Sheftel, was quick to accept the proposal and offered a two-week mediation process instead, but prosecutor Lt. Col. (res.) Nadav Weisman refused and insisted the court rules on the case. 
Despite this, the judges called on the two sides to consider the request and asked the prosecution to raise the issue with the Military Advocate General. The court gave the two sides a week to reach a decision.
Sgt. Azaria's previous defense counsel withdrew because of disagreements over strategy.

Saturday, May 27, 2017

Robust debate in Ottawa

The Lawyer's Daily, a Canadian legal paper, has this account of divergent views as between the Military Law Section of the Canadian Bar Association and the Office of the Judge Advocate General at a well-attended military law conference in Ottawa. The CBA's comments to the JAG's Court Martial Comprehensive Review Team urged that more attention be focused on summary trials, rather than courts-martial, since summary trials account for the lion's share of military justice cases.

Friday, May 26, 2017

CBA awakens to need for civil society and parliamentary involvement in military justice reform

Pursuant to his statutory authority for the superintendence of the administration of the military justice system under section 9.2 of the National Defence Act, on July 20, 2016 the Office of the Judge Advocate General commissioned a Court Martial Comprehensive Review of the Court Martial System [CMCRT]. The Terms of Reference for this review state that “the purpose of this comprehensive review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.”

The CMCRT, headed by Colonel Robin Holman, must assess the current court martial system’s effectiveness, efficiency and legitimacy to determine whether changes are required or advisable to promote greater systemic effectiveness, efficiency or legitimacy. An online public consultation took place from October 11 to November 7, 2016. The CMCRT team travelled extensively to foreign lands to examine their military justice structure and practices and to consult with governments, academic, and legal communities.

The final report to be submitted by the CMCRT is to be treated as a document that is subject to solicitor-client privilege.


On March 31, 2017 the Military Law Section of the Canadian Bar Association [CBA] issued a most critical review of the very existence of the CMCRT and its modus operandi. which is reproduced below. By bringing a fresh, independent and credible perspective to this public debate, the CBA has raised a number of disapproving remarks concerning the validity, utility and dependability of this JAG-initiated review in the pursuit of an improved, modernized military justice system.                                       

Court Martial Review

Submission of the Military Law Section of the Canadian Bar Association

March 2017


      The Judge Advocate General (JAG) has directed the Deputy Judge Advocate General for Military Justice (DJAG MJ) to conduct a comprehensive review of the Canadian Armed Forces (CAF) court martial system. The purpose of this comprehensive review, found in its May 2016 Terms of Reference (ToR), is “to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.” The Court Martial Comprehensive Review Team (CMCRT) is then to “assess whether changes to any features of this system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy.” The comprehensive review was to commence no later than July 15, 2016, and the CMCRT must present its final report to the JAG no later than July 15, 2017.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries and academics, and our mandate includes seeking improvements in the law and the administration of justice. The CBA’s Military Law Section (CBA Section), consisting of lawyers from across the country who specialize in military law, appreciates the opportunity to contribute its views to the comprehensive review.


Although the CBA Section believes that this review pursues a legitimate goal, we see its scope as too limited. Ideally, we recommend an open and comprehensive Parliamentary review of the military justice system, with ample opportunity for public input and scrutiny, whose report is made easily accessible and publicly available.

In the context of the current review, the court martial system represents only a portion of Canadian military justice as one of two forms of service tribunals under the National Defence Act (NDA). The other is the summary trial process, where about 95% of disciplinary cases are handled. However, the two processes are so interconnected that changes in one will almost invariably have an impact on the other. For that reason, we believe that any review conducted as though the two systems operate in silos risks missing the target.

A more thorough review of the Canadian military justice system and how it provides “processes that would assure the maintenance of discipline, efficiency and morale of the military” is an important and worthwhile endeavour that should, at a minimum, encompass both forms of service tribunals. The overwhelming majority of charges laid under the NDA are decided at summary trials presided over by Commanding Officers, Superior Commanders or Delegated Officers, and those trials should be included in this review.

Bill C-71, introduced in the House of Commons about two years ago, proposed substantial reforms to Canadian military justice. It included drastic modifications to the summary trial system, and adapted the Canadian Victims Bill of Rights (CVBR) to the Canadian military justice system. Bill C-71 died on the order paper with the 2015 federal election. No other iteration of Bill C-71 has since been introduced, and we suggest it would be appropriate to also include the main elements of that Bill in the scope of the current review.

A review of the military justice system, not just of the court martial system, ought also to address issues raised by numerous commentators, such as the jurisdiction of summary trial presiding officers and the training of assisting officers. A truly comprehensive review should involve the participation of interested Canadians, academics, practitioners and service personnel. A comparative review of foreign jurisdictions would also enhance this research.

While we appreciate that the JAG is statutorily mandated with “the superintendence of the administration of military justice in the Canadian Forces” and must “conduct, or cause to be conducted, regular reviews of the administration of military justice”, Parliament must decide what military justice system is best for Canada. A review of the administration of military justice by the JAG might well lead to proposed fundamental modifications to the Code of Service Discipline. For these reasons, we suggest that a thorough review be conducted in public by a Parliamentary body, with sufficient time for thoughtful and objective analysis. In particular, this would ensure better and more transparent consideration of how any reforms would be implemented.


The CMCR ToR stipulates that the Canadian public must be given a reasonable opportunity to provide written input on the subjects described in the ToR and that the public consultation phase was to be completed no later than December 15, 2016. The CMCRT was also authorized “to conduct further consultation with any member of the Canadian public who has a demonstrable expertise in a subject that is relevant to the comprehensive review, at the sole discretion of the DG CMCRT.” The ToR allowed for a possible consultation phase of five months, from July 15 to December 15, 2016.

The actual public consultation phase was open from October 11, 2016 to November 7, 2016, just 28 calendar days. If the goal is to encourage as much public engagement and feedback as possible, that period was too short for meaningful participation. In general, we believe there has been inadequate public consultation on the topics at issue, and this should be remedied.

The JAG website also contains a Discussion Board enabling the public to post comments. It now reports that the “CMCRT received a total of 33 submissions from 32 individuals, and one submission from an institutional stakeholder (the Federal Ombudsman for Victims of Crime)”.

Among the individual public comments on the Discussion Board is a lengthy comment, strongly supportive of the current military justice system. The commentator refers to his extensive experience in the military, and gives his name – the same name as a Colonel presently occupying the role of Director of Military Prosecutions, who forms part of the JAG command team (see the JAG website). If this is more than a simple coincidence, and the comment is actually from the Director of Military Prosecutions, we question why it would be included on the public Discussion Board. A legitimate public consultation process must be transparent and reflect the feedback received from the public during the review process. There is no problem if individuals with specific roles or expertise in the military justice system or other organizations are also heard, but we suggest simply that those roles and expertise should be made explicit. This practice was followed for input received from the Federal Ombudsman for Victims of Crime, noted above, posted with the public comments.


In 2013, the Strengthening Military Justice in the Defence of Canada Act (previously Bill C-15) amended the NDA in significant ways. However, most of the Bill has not yet come into force, specifically intermittent sentences (s. 24), summary trials (ss. 35 and 36), Division 7.1 sentencing, which includes new provisions on victim impact statements and absolute discharges (s. 62), and criminal records (s. 75).

Parliament passed this legislation almost four years ago. Resources are now being dedicated for the current review that includes several areas (punishments, sentencing, special needs of victims) also covered in that legislation.

The CBA Section suggests the reasons for this delay and overlap should be explained to the public. The JAG should disclose reasons for the delay in implementation of the legislation, and any plans for coming into force of these important provisions of the Act.


The CMCR ToR specify that “[t]o the greatest extent possible, the final report of the CMCRT shall be unclassified, and shall not require any protected designation. However, the report shall be marked and treated as a document that is subject to solicitor-client privilege.” (emphasis added) An open and transparent review process would assist in ensuring public support and demonstrating respect for the rule of law, the disciplinary needs of the Canadian Forces and the individual rights of Canadians subject to the Code of Service Discipline

      Exceptions can occur when necessary for legitimate public policy reasons, but justice is generally expected to be conducted in public in Canada. While the CBA is a staunch defender of solicitor-client privilege, it seems odd that the JAG would request public participation and input to a review that will ultimately produce a report not publicly available. The ToR do not specifically state what actions will result from the final report.

In our view, the ensuing report on military justice should be available to the public. We expect that the Minister of National Defence, the CAF and the Canadian public would have less confidence in our military justice system if the study and its final report are kept from the very public asked to participate in the review process.


The CBA Section supports the JAG in his statutory duties. We also believe that fundamental questions underpinning discussions of military discipline and military justice must be debated in an open and public forum. A joint Parliamentary committee would possess the necessary resources and competence to review these issues fully and share any findings with the Canadian public. The goal should ultimately be legislation that ensures Canada’s military justice system both supports the discipline, efficiency and morale needs of the military and ensures that justice is done in the defence of Canada.

Memorial Day, Monday, May 29, 2017

Ball's Bluff National Cemetery, Leesburg, Virginia

Meanwhile in Peshawar

While attention has focused on the International Court of Justice case concerning Indian national Kulbhushan Jadhav, there is other litigation in the Pakistani courts over the military courts. A new case has been filed in Peshawar High Court with respect to the conviction and death sentence of a former Pakistani Taliban spokesman. As reported here:
Muslim Khan’s counsel, Advocate Tariq Asad, put forward different objections to the trial of Khan under the Army Act. 
He said that Khan was taken into custody by security forces in Sept 2009 after which nothing was known about him until his family came to know about his conviction through newspapers in Dec 2016. 
The counsel said that the family had not been provided record of the trial proceedings and it was not known under what charges Khan had been sentenced to death. 
“They submitted an application to the military court of appeal seeking details of the trial proceedings, but no reply was given to them,” argued Asad. 
He said that Khan was not provided a counsel of his own choice and was denied a fair trial which was his fundamental right under article 10-A of the Constitution. 
The counsel said that the convict had remained in custody of security forces for seven years and it was not known under what conditions he had been kept. 
“Apparently the proceedings of the military court were one-sided,” he alleged.

Changes of command

On Wednesday morning, there was a double-header at the U.S. Court of Appeals for the Armed Forces. First, long-time Clerk of Court William A. ("Bill") DeCicco retired (and was succeeded by Joseph R. Perlak). Then there was a gavel-passing ceremony marking the transition from retiring Chief Judge Charles E. ("Chip") Erdmann to incoming Chief Judge Scott W. Stucky. Three former Chief Judges* -- Walter T. Cox III, Susan J. Crawford and Andrew S. Effron -- and former Clerk of the Supreme Court of the United States Major General William K. Suter were among the guests who filled the courtroom.

Congratulations to all concerned -- including family. On to the next chapter. For those who are retiring that means golf and Montana, respectively; for those who are staying on it means another batch of cases. Chacun à son goût.

* Editor's query: what is the collective term for a group of chief judges? "A gavel of chiefs"? "A case of chiefs"?

Thursday, May 25, 2017

Martial law and military courts in the Philippines

President Rodrigo Duterte of the Philippines has placed part of the country under martial law, so we can expect to read about military courts trying civilians. From this report:
Most countries use a different system, such as announcing a state of emergency, but in the Philippines the President can place an area under the control of the Armed Forces of the Philippines. 
The features of martial law involve:
  • Curfews
  • The suspension of civil law, civil rights and habeas corpus
  • The application of military law or military justice to civilians
  • Civilians defying martial law being subjected to military tribun[al]s (Court Martials)
Although the legal effects of martial law differ depending on where it is issued, it generally involves the suspension of ordinary civil rights. 
A state of martial law is temporary in theory, but could continue indefinitely.
Human Rights Watch's statement gives some useful background:
In 1972, then-President [Ferdinand] Marcos imposed martial law and suspended habeas corpus throughout the Philippines, which facilitated widespread abuses by the military and other security forces, including detention without charge, torture, enforced disappearances, and extrajudicial killings. These abuses did not end when martial law was lifted in early 1981. The 1987 Philippine Constitution, which was drafted after Marcos’s overthrow during [the] “people power” revolution in 1986, places restrictions on the proclamation of martial law and the suspension of the writ of habeas corpus, as well as on their implementation. 
Article VII, section 18 of the Constitution empowers the president in the event of “invasion or rebellion” to impose martial law and suspend habeas corpus for up to 60 days. A majority of members of both houses of Congress can revoke – or extend – the proclamation or suspension without the president’s approval. 
Also under section 18, the Supreme Court may review a case brought by any citizen contesting the factual basis for martial law, and must hand down its decision within 30 days. 
The Constitution also provides some important due process protections during martial law, Human Rights Watch said. A state of martial law does not suspend the Constitution, nor replace the functioning of the civil courts or Congress. It only permits military courts to try civilians when civil courts are unable to function. Suspension of habeas corpus applies only to people judicially charged for rebellion or offenses linked to invasion, and those arrested or detained must still be charged by the courts within three days or be released.

Stopping the clock

On May 15, 2017 the Parliamentary precinct newspaper Hill Times published a response to Major General Blaise Cathcart's earlier end of tour of duty interview published in the Lawyers' Daily. The article written by Joshua Juneau, one of my associates, is a tad uncomplimentary of the Judge Advocate General's legacy after seven years in that position. The article focuses specifically on an issue of significant importance to the modernization of the Canadian military justice system and, of more value, the integrity of the legislative process.

The article notes that Bill C-15 - Strengthening Military Justice in the Defence of Canada (Statutes of Canada, 2013, c. 24), which was drafted by the Office of the JAG, was given Royal Assent on June 19, 2013 and was enacted into law after two years of parliamentary debates. The enactment introduced a number of significant amendments to modernize the military justice system, including the composition of the court martial panel, victims impact statements, the introduction of additional sentencing options, the modification of the limitation period applicable to summary trials etc.

Yet, four years later, only 60 of the 134 amendments to the National Defence Act have come into force.

This gives new meaning to the French expression: "Avancez en arrière".

Wednesday, May 24, 2017

Photo sharing bill passes House of Representatives

By a vote of 418-0, the House of Representatives today passed a bill to amend the Uniform Code of Military Justice to criminalize unconsented sharing of nude photos. Leo Shane III has the story here for Military Times.

The measure now goes to the Senate.

Tuesday, May 23, 2017

Happy 100th birthday

The NOAA Commissioned Corps, a uniformed (but not armed) service that is part of the U.S. Department of Commerce, turns 100 today. All the best!

The Washington Post has the story here.

The rocky road of military justice: Pakistan, India and beyond

An Indian blog, Law and Other Things, has kindly run this post by the editor:

Considering the fact that it’s a pretty obscure area, military justice is very much in the headlines right now. It’s a good time to take stock of current developments. As you will see, while once military justice existed in a kind of legal cocoon, separate and apart from developments in society as a whole, that is no longer the case.

The subcontinent is a good place to start. Readers are likely to be aware of the current controversy over the fate of a retired Indian Navy commander, Kulbhushan S. Jadhav. Commander Jadhav was convicted in a Pakistani military court and sentenced to death. Pakistani authorities refused India’s efforts to communicate with him as provided in the 1963 Vienna Convention on Consular Relations, to which both countries are parties. India invoked the jurisdiction of the International Court of Justice, which on May 18 ordered Pakistan not to proceed with the execution.

The proceedings at The Hague are playing out as a fight over remedies in the event a country violates the consular access provision. Will the court stop its inquiries once it decides whether Pakistan violated that provision, or will it go further and address the fairness and legality of the Pakistani legal proceedings that brought Commander Jadhav to Death Row? My prediction is that, once it reaches the merits, the ICJ will confine itself to the Vienna Convention issue, and simply turn back the hands of the clock so that the status quo as it existed prior to any breach of the Convention is restored. That will mean Pakistan will have to afford Commander Jadhav consular access, and presumably that access will give him a better sense of his legal rights under Pakistani law, presumably leading to arrangements for him to obtain legal counsel of his own choosing, rather than the Pakistani military officer who previously assisted him.

But other than that, Commander Jadhav will still be in serious trouble because the grave shortcomings of the Pakistani military court will remain. Those courts, whose jurisdiction ought to be confined to military-related offenses by military personnel, were granted jurisdiction over civilians in January 2015 by a constitutional amendment that was passed hastily and had a sunset date only two years later. It lapsed early this year but Parliament renewed it for another two years, so it will remain as an available trial forum. Sadly, a fractured Supreme Court of Pakistan in 2015 upheld the arrangement. The 2017 amendment is the subject of pending constitutional petitions, so it will be some months before we will know whether the court will take a different approach the second time around. (My own view is that the 2015 and 2017 amendments are both invalid because – given their two-year duration — they are actually only statutes masquerading as constitutional amendments, and hence cannot displace protections found elsewhere in the Constitution of Pakistan.)

The shortcoming of Pakistan’s military courts run the gamut. Secret trials. Lack of judicial independence. Unavailability of counsel of choice. Appellate review that is a mockery. Highly constrained review by the civilian courts. Above all, it is a misuse of the military court forum to try a civilian there. None of this is novel. These points are settled under the International Covenant on Civil and Political Rights and reflected in the UN’s 2006 Principles Governing the Administration of Justice Through Military Tribunals.

While the Jadhav case is concerning on its own terms (especially because Pakistan has continued to execute military court defendants), it calls attention to the unsettled state of military justice and the difficulties of making progress on issues that should have been addressed long ago. While Pakistan is an extreme case, it unfortunately is not lacking for company.

At the risk of losing some of my audience, I’ll turn to India. Indian military justice needs more than a face-lift: it needs serious surgery. For example:
  • There should be a single disciplinary statute covering all military and paramilitary forces
  • There should be an independent military judiciary
  • Charging decisions should be made by prosecutors outside the chain of command
  • There should be meaningful appellate review by the civilian courts, including the Supreme Court of India
  • The judicial review system has to move at a much faster pace, in contrast to the current arrangement under which cases linger literally for decades, by which time it is nearly always impossible to fashion fully relief
Looking further afield, it is discouraging to see one country after another – countries whose leaders know better – subjecting civilians to trial in military courts. Current examples include not only Pakistan but Venezuela, Lebanon, Uganda, Bahrain and Russia. This is moving in absolutely the wrong direction. Sometimes this happens because the civilian criminal justice system is dysfunctional, but the answer surely must be to fix that system rather than throw up one’s hands and turn in desperation to the military. At other times, military courts are relied for entirely improper reasons, such as to stifle dissent. Either way, this is a bad trend and civil society in the affected countries needs to resist it.

Two other issues that ought to be on people’s screens are the problem of impunity with respect to deployed personnel and the special problem of indiscipline among peacekeepers, whether under UN auspices or not. A number of countries are currently engaged in military operations beyond their borders, and experience teaches that misconduct by deployed personnel is not unheard of. This may be merely the usual (impermissible) theft, looting and similar crimes, or it may involve grave breaches of the law of war. Several cases over the last few years have involved the killing of wounded enemy combatants. Desecration of fallen combatants has been reported. Handling these cases can be a challenge even for countries with the deepest commitment to the rule of law. Who (if anyone) will be charged and at what level of severity? What sentence can be secured in the event of conviction, and how will the sentence be affected by appellate review and the exercise of clemency at the political level?

Problems of impunity are, if anything, magnified when it comes to peacekeeping units. “What happens in [fill in the country] stays in [fill in the country]” has long been the practice. Troops far from home may be tempted by greed, malevolence or sexual needs to prey upon vulnerable local populations, but disciplinary action may be slow in coming, if it ever does. The troop contributing country, rather than the UN or other umbrella organization for the mission, has the right and duty to impose punishments. The UN’s Department of Peacekeeping Operations and the Secretary-General are fully aware of this problem and are finally taking steps that, with luck, may lead to improved discipline. Needless to say, until the UN gets on top of this problem, troop contingent relations with the local population every mission seeks to protect will be more of a challenge than necessary.

Finally, countries need to be systematic about military justice reform. Military leaders should be proactive rather than waiting for change to be forced on them by events on the ground, pressing legislative issues such as sexual assault in the forces, or judicial decisions that may or may not make practical sense. Every country of course has its own political culture and dynamic. India, for example, turned to a broad-based committee to formulate suggestions. In generating a recent set of military justice reforms the Pentagon was open to suggestions but conducted no public hearings. Shamelessly, when the administration’s proposals reached Congress, neither the Senate nor the House of Representatives conducted a single public hearing. The result of that opaque process was that such long-overdue “no-brainer” reforms as giving military personnel the same access to the Supreme Court as is enjoyed by all other criminal defendants never even came up.

These notes only scratch the surface with respect to the range of military justice issues countries around the world are grappling with. Pakistan may be under the microscope at the moment, but it is not alone.

Monday, May 22, 2017

Concern over civilian trials of Malaysian military personnel

Former legal officer Lt. Cdr. (R) Zalil Mohd Mess of the Royal Malaysian Navy writes here in opposition to recent trials of military personnel in civilians courts. Excerpt:
The Armed Forces laws are quite unforgiving and more severe compared to civil criminal punishment. As an example, an offence of drug abuse is punished with 12 months imprisonment and dismissal. 
The Armed Forces laws are also allowed to prosecute servicemen and officers who break any Federal penal civil laws, including offences under the Anti-Corruption Act. 
The court-martial is vested with the power to impose maximum punishment of death. 
In the worst case scenario, after an investigation is completed by an outside authority (because the Armed Forces is incapable of conducting their own investigation or because of the of inter-agency trust), why are these accused not offered a trial by their peers in a court-martial? The outside agencies’ investigation is still admissible in a court-martial. 
If it is a question of capability of the prosecution, the rules allow for officers from the legal office of the Defence Ministry (usually officers seconded officers from the Attorney-General’s Chambers) to prosecute in a court-martial. 
The Armed Forces are unlike the police, who do not have a similar court to deal with their own because the nature and integrity of their establishment relate to the public directly. 
The prosecution of Armed Forces personnel and officers in public courts is distasteful and undermines the reputation of the Armed Forces. 
It would better serve the Armed Forces if these cases were tried in a court-martial and given the necessary press coverage to ensure transparency (court-martials are conducted in public).

Sunday, May 21, 2017

Quis custos?

The subsequent convening authority action may be insulated from the appearance of impropriety by attaching a statement to the record that clarifies the Judge Advocate General’s impartiality and his desire for the newly appointed convening authority to exercise independent judgment.

From the government's response to a motion for the appointment of a special master by the U.S. Court of Appeals for the Armed Forces. Worth-reading details here from The Washington Times's Rowan Scarborough

What went wrong at The Hague

Muhammad Majid Bashir, a Pakistani lawyer and former judge,  and Shah Nawaz Mohal, have written for Pakistan Today about what went wrong in Pakistan's presentation to the International Court of Justice in response to India's request for provisional measures in the Jadhav case. Excerpt:
Mere reading of the judgment reflects that Pakistan entered in this war without any preparation and legal tools. The lawyer took less time to conclude his arguments and has lost more than 45 precious minutes in ICJ, which is itself making a world record. More importantly, Pakistan has not availed procedural benefits of nominating an ad hoc judge in the panel of ICJ. 
Unfortunately, Pakistan hurriedly aired in the opening session of court proceedings (at preliminary arguments stage) the time frame work of execution of Mr Yadhav, without giving the details of hierarchy of right of appeal in Pakistan, as provided in the military court/laws and inter alia other existing provisions of domestic laws related to appeals in such cases. The legal team of Pakistan could not build this famous narrative before ICJ relating to the status of Mr Yadhav — first as enemy of state and second as spy of enemy state and thirdly that he is involved in waging of war against Pakistan in the light of his confessional statements. In our arguments before ICJ, we have also missed to link Mr Yadhav’s presence in Baluchistan, collaborating the statements and threats of Indian national security advisors to Pakistan on print and electronic media before the arrest of Commander Yadhav from Baluchistan. Where he said that India had planned to disintegrate Baluchistan from Pakistan. He further disclosed that India had planned to create unrest in other provinces of Pakistan as well. He had also openly discussed the waging of war strategy of India against Pakistan in Baluchistan as the pilot project. These points can exclude the ICJ jurisdiction, and Pakistan can exceptionally perform well to convince ICJ that Pakistan is in war like situation and Commander Yadhav’s activities in Baluchistan are integral part of Indian conspiracy to attempt war or abetting waging of war against Pakistan.

Friday, May 19, 2017

Rehearing requested (or not) in Jadhav (India v. Pakistan)

It is being reported that Pakistan on Friday asked the International Court of Justice to reconsider its decision to order a stay of execution in the Jadhav Case. At this writing, no such request is posted on the ICJ website. The Pakistani government is taking heat domestically for allegedly mishandling the ICJ litigation.

Summary trials - a medieval form of military justice

In recent years, the European Convention on Human Rights (ECHR) and various rulings on its applicability to military trials have also caused some countries, in particular the United Kingdom [Findlay v. The United Kingdom, (1997) I ECHR 8 and Morris v the United Kingdom (2002) I ECHR 162. are, in a way, the starting point for a series of legislative changes brought about in the United Kingdom] to overhaul and amend their military judicial processes. 

The reforms aim at bringing their processes into compliance with Articles 5 and 6 of the ECHR

These Articles provide that no one may be deprived of their liberty, except by a competent and impartial tribunal, and that accused may declare their right upon a criminal charge to a fair and public hearing by an independent and impartial tribunal as established by law.

Lately, the United Kingdom and Ireland recognized this specific deficiency and so, as a result of decisions of the European Court of Human Rights, soldiers now convicted at a summary trial have an unfettered right to a hearing before an appeal tribunal made up of three members where they may be represented by a lawyer

There is no legal or operational reason why similar changes could and should not be incorporated in Canada’s military system of justice since our Charter is, in most respects, analogous in values and terms to the ECHR. Canada has yet to contemplate similar changes.

 Canada could adopt the solution implemented by the UK and others and establish a Summary Appeal Court where the accused would be given the full panoply of rights. It could also decriminalize 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.

The situation in Venezuela

Human Rights Watch and the Venezuelan Penal Forum have issued a joint statement about the spate of military trials of civilians. Excerpt:

As of May 15, the Venezuelan Penal Forum has obtained information regarding the prosecution of at least 275 civilians by military courts in Venezuela. In all these cases, the Venezuelan Penal Forum has directly assisted detainees or verified information regarding the prosecutions through direct contact with family members. Human Rights Watch interviewed several of the lawyers representing detainees. The cases include the prosecution of 192 civilians in Carabobo state, 19 in Falcon state, 20 in Zulia state, 18 in Caracas, 13 in Lara state, 10 in Sucre state, two in Barinas state, and one in Táchira state. 159 of these defendants were in pretrial detention as of May 12. Detainees are being held in military prisons, prisons for detainees subject to military prosecution, high-security prisons, or in headquarters of the intelligence services.
While no public record of these proceedings is available—a problem in its own right—the accounts by lawyers and family members include many disturbing allegations of abuses and procedural defects in the conduct of these prosecutions, including the following:
  • Detainees being subjected to physical and other abuses that may in some cases amount to torture at the moment of their arrest or during detention.
  • Hearings being held in military courts or other military installations, presided over by military judges who report to the Minister of Defense, and sometimes in the presence of armed guards.
  • Judges charging large groups of protesters with crimes en masse, without any individualized consideration of the evidence against them.
  • Hearing times not being specified in advance, leaving independent lawyers and families waiting at the entrance of military facilities or courts for hours. Lawyers say that when hearings are held, they are sometimes not able to enter the courtroom; when they are allowed to enter, they often are only able to speak to detainees a few minutes before the hearings, only have access to the criminal file when they are at the hearing, and cannot take pictures or copies of the files.
  • Protesters being charged with serious crimes under the military code, such as “rebellion” and “treason,” for alleged acts of violence at protests.

Thursday, May 18, 2017

ICJ order in Jadhav (India v. Pakistan)

The May 18, 2017 Order of the International Court of Justice in Jadhav Case (India v. Pakistan) is available here. It does not address the validity or sufficiency of Pakistan's military court jurisdiction or of the trial and appellate processes.

The concurring opinion of Judge António Augusto Cançado Trindade is available here. The separate declaration of Judge Dalveer Bhandari is available here. Neither document addresses the deficiencies in the military court.

Lacking in Canadian military justice system: Independence of the prosecution which is a constitutionalized principle of fundamental justice which is sadly lacking in Canadian military justice system

Discretion in prosecutorial matters and the principle of independence have been the subject of a series of decisions by the Supreme Court of Canada in the last 25 years: Nelles v. Ontario, [1989] 2 SCR 170; R. v. T. (V.) [1992] 1 SCR 749;  R. v. Cook, [1997] 1 SCR 1113; Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII) ; Miazga v. Kvello Estate, 2009 3 SCC 51(CanLII) ; R. v. Nixon, 2011 SCC 34 (CanLII) ; R. v. Anderson, 2014 SCC 41 (CanLII), and more recently Sriskandarajab v. United States of America, 2012 SCC 70 (CanLII) ; Hinse v. Canada (Attorney General), 2015 2 SCC 35 (CanLII) and Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII) .

Section 7 of the Charter protects the constitutional right of an accused to an independent prosecutor, that is to say, the right to a prosecutor who is objectively able to act independently, at every stage of the judicial process, when making decisions concerning the nature and extent of prosecutions and who can reasonably be perceived as independent. 

To ensure the independence of the Military Prosecution Services, these Services should not be under the supervision of the JAG (see section 165.17of the National Defence Act below) who is the head of the legal chain of command and is both accountable and responsible to the Minister of National Defence. 

Relationship to Judge Advocate General

165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

General instructions

(2)          The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

Specific instructions

(3)          The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

Given this hierarchical relationship between the Director of Military Prosecutions (DPM) and the Judge Advocate General, any notion of independence on the part of the DPM is at best illusory. To ensure both the reality and perception of true independence, the DPM should be under the supervision of the Attorney General of Canada or the Federal Director of Penal Prosecutions.

Provisional measures ordered in Jadhav (India v. Pakistan)

The International Court of Justice has issued an interim order staying the execution of Kulbhushan Jadhav, the Indian citizen who is under sentence of death adjudged by a military court of Pakistan. The order itself is not yet on the ICJ's website, but the press release can be found here. The transcripts of the hearing are available here and here. Excerpt from the press release:
The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction. 
The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible. 
The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought. 
The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.
From Pakistan's oral presentation:
In so far as it has been suggested that the process that Commander Jadhav is subjected to is some form of kangaroo court, it is rather bizarre that a court exists in a State which is seeking to do justice and is asking for evidence in that regard and is sharing evidence in that regard. So, the position that is advanced before this Court is, with respect, a sham.
Huh? It will be interesting to see what, if anything, the ICJ says, either now or at the end of the case, about Pakistan's military courts. The editor's guess: nothing.

Wednesday, May 17, 2017

Chain of Command’s Exceptional Power to Review and Substitute Findings of Guilt and Punishments need be reviewed

Pursuant to sections 249, 249.11, 249.12, 249.13 and 249.14 of the National Defence Act, a finding of guilty and sentences imposed can be reviewed by reviewing authorities outside the judicial hierarchy. Where the finding and the sentence emanate from summary trials, the review is conducted by the Chief of the Defence Staff or his delegate. [It is the Governor-in-Council who acts as the reviewing authority when the finding and the sentence are made and imposed by a court martial.] These ‘powers conferred by these sections can be traced as far back as 1883. Both the accused and the CDS can seek a review.

In the exercise of its review functions, the Reviewing Authority may quash the guilty finding, substitute a new guilty finding for the one under review or a new guilty finding for an offence other than the one for which the accused was found guilty by the summary trial.  In the same vein, it may mitigate, commute or remit any or all of the punishments included in a sentence imposed by the summary trial.

A review by the chain of command of a verdict rendered and sentence passed at a summary trial is conducted without any parameters such as grounds for a review, limits as to the process of the reviewing authority, right to counsel, procedural guarantees, etc. There are no records and no transcripts of the evidence tendered at the summary trials which could help the reviewing authority in the exercise of its functions and assist the accused either in their demand for review or their opposition to the prosecutor’s demand.

Also there are no parameters guiding the mitigation, commutation or remittance of all or part of the punishment imposed, including a sentence passed by the summary trial.As for the review of findings of guilt, the NDA is silent on the criteria for interfering with the punishments imposed, thereby opening the door to secretive arbitrariness.

Only in exceptional circumstances, under strict criteria and where it is necessary to do so to maintain the operational readiness and efficiency of the Canadian Armed Forces should the chain of command have the power to review and quash findings made and punishments imposed by a service tribunal and proceed to substitute findings and punishments of its own.

Lahore HC lawyers sue

The constitutional petition filed by the Lahore High Court Bar Association against the Federation of Pakistan challenging the 23rd Amendment has been docketed at No. 10 of 2017. The web page is here.

The purge resumes in Turkey

Another 135 military judges and prosecutors are facing civilian charges in Turkey. For the latest arrests and the background, click here.

Tuesday, May 16, 2017

Institute of Military Law--India

The Nagpur Today reports:  The Institute of Military Law, the Alma-mater of the Judge Advocate General’s Department the Indian Army celebrated its 27th Raising Day on 16 May 2017 with great zeal and fervor. The Institute is one of its kinds in Asia which trains the Defence Service officers in Military and allied laws.

The Institute was inaugurated at Kamptee way back on 16 May 1990 by Maj Gen AB Gorthi, AVSM,VSM (Retd), the then Judge Advocate General (Army). Institute of Military Law was given permanency on 23rd Dec 2016.

Military Police independence: myth or reality?

Police independence from interference in individual investigations is vitally important and has been recognized by the Supreme Court of Canada as an unwritten constitutional principle derived from the rule of law. [ See: Professor Kent Roach, “Police Independence and the Military Police" (2011) 49 Osgoode Hall Law Journal, 117-149] 

Military police officers operate with a duality of roles. On the one hand, they are peace officers under section 2 of the Criminal Code and are an autonomous policing body within the CAF. On the other hand, they are members of the Canadian Armed Forces, subject to the military chain of command and are duty-bound to follow orders from superior officers. They are subject to the authority of the Canadian Forces Provost Marshal, the highest-ranking military police officer.

However,pursuant to subsection 18.5(1), (2) of the National Defence Act (NDA) the Vice Chief of the Defence Staff (VCDS) has statutory powers of ‘general supervision’ and canissue ‘general instructions or guidelines to the Provost Marshal. 

Truth be told, Military Police independence is compromised by way of subsection 18.5(3) of the NDA which permits the VCDS to ‘issue instructions or guidelines in writing in respect of a particular investigation’. Under this statutory power, the VCDS is able to provide instructions and guidelines in specific cases which could presumably include instructions to and/or not to investigate a particular person or matter. 

This is problematic because it strips the Military Police of the ability to freely investigate without the interference of the military chain of command or an executive arm of Government. Moreover, there is no requirement to make these instructions or guidelines public. It is therefore difficult to understand why the VCDS should retain such power.

The military police should be allowed to proceed with an investigation without interference from non-military police command structures, including the VCDS. 

Just like command influence should not play a role with respect to the laying of charges under the Code of Service Discipline, the military chain of command should not be permitted to instruct the conduct of a military police investigation in a specific case.

Is lustration the answer for Sri Lanka?

Shamara Wettimuny has written this interesting GroundViews essay about whether lustration should be considered in the Sri Lankan context. Excerpt:
Suspects with military links feature in a number of ongoing investigations into crimes and human rights violations committed in Sri Lanka’s post-war period. The Criminal Investigation Department’s report in Lasantha Wickramatunga’s murder investigation detailing military-run ‘death squads’, and the alleged involvement of military intelligence in the disappearance of Prageeth Eknaligoda are examples of this tendency. Meanwhile, recent allegations that 134 Sri Lankan peacekeepers sexually abused children in Haiti exemplify the problem of military indiscipline in the country. 
In this context, there is a need for a process to distinguish between perpetrators of crimes, and those within the military who conducted themselves lawfully and professionally during the war and its aftermath. This process is crucial for post-war peace, as the failure to separate criminals from those who abide by the law fosters a culture of impunity, and brings the entire military apparatus to disrepute in the eyes of victims. Prosecution of perpetrators is the most obvious and straightforward means of ensuring accountability. As Sri Lanka grapples with questions of accountability, the viability of lustration will no doubt be considered.

Recommendations from the UN Committee Against Torture

The UN's Committee Against Torture has issued its Concluding Observations with respect to Pakistan. You can find them here. Of note (highlighting added):
Torture in the Context of Counter-Terrorism Efforts 
12. While recognizing the State party’s ongoing efforts to protect its population from violence by certain non-State terrorist groups, the Committee is seriously concerned that the State party’s counter-terrorism legislation, particularly the Anti-Terrorism Act, 1997 (ATA), eliminates legal safeguards against torture that are otherwise provided to persons deprived of their liberty, by allowing security agencies and civil armed forces to detain any person suspected of committing an offence under the Act for up to three months without review or the possibility of a habeas petition and allowing the detention without trial of up to a year of any person suspected of being involved in the activities of a proscribed organization. The Committee is further concerned that the ATA allows courts to admit confessions as evidence so long as the District Superintendent of Police is present when the accused confessed, in contrast with civilian courts where confessions are only admissible in court if made to a magistrate. The Committee is also seriously concerned that the State party has authorized military courts to try civilians for terrorism-related offences, most recently in the 23rd amendment to the Constitution of Pakistan, approved in 2017, particularly in view of the lack of independence of military court judges, which are within the military hierarchy, and practices of such courts including holding closed trials. The Committee is also concerned by the very broad powers given to the Army to detain people suspected of involvement in terrorist activities without charge or judicial supervision in internment centers under the Actions in Aid of Civil Power regulations 2011 (arts. 2 and 15). 
13. The Committee recalls that article 2(2) of the Convention states “No exceptional circumstances whatsoever [...] may be invoked as a justification of torture” and its general comment No. 2 (2007), states that exceptional circumstances include “any threat of terrorist acts.” In this regard, the Committee urges the State party to:

(a) Repeal or amend the Anti-Terrorism Act and other relevant legislation to ensure that all persons deprived of their liberty have access to legal safeguards against torture, including prompt presentation before a magistrate and the possibility of a habeas petition, and to ensure that confessions obtained outside the presence of a magistrate are inadmissible as evidence;

(b) End the resort to military courts for terrorism-related prosecutions, transfer criminal cases against civilians from military courts to civilian courts and provide the opportunity for appeal in civilian courts of cases involving civilians already adjudicated under military jurisdiction; and

(c) Repeal or amend the Actions in Aid of Civil Power Regulations 2011 in order to abolish the military’s power to establish internment centers in the Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA) and ensure that no one is held in secret or incommunicado detention anywhere in the territory of the State party as detaining individuals in such conditions constitutes, per se, a violation of the Convention. So long as such internment centers remain in operation, ensure that independent monitors and family members of those detained, are able to access such places of detention.