Friday, June 30, 2017

Lahore High Court Bar Association breaks new ground

. . . and not in a good way. Having previously threatened to expel any member who defended convicted capital defendant Kulbushan Jadhav, the Lahore High Court Bar Association has filed some kind of pleading in the Lahore High Court urging rejection of clemency. It is incomprehensible why an association of attorneys would do either of these things. Indeed, this is so far off the wall that Global Military Justice Reform will not even award the LHCBA the uncoveted George III award for retrograde activities.

Thursday, June 29, 2017

Franco-era military court convictions voided

The Catalan Parlament has unanimously invalidated all cases tried by military courts in Catalonia during the Franco dictatorship between 1938 and 1978. Details here, in Spanish.

Tunisian military justice system and its jurisdiction over civiilans

The Tunisian media has published earlier today an interesting piece about their national military justice system. The article opens by stating that reliance on the of military justice to try civilians (bloggers, journalists, politicians, lawyers, businessmen, etc.) arouses the outrage by civil society which considers this as plain and simple violation of their human rights.

The article focuses on the launch of “Operation Clean Hands” which led to the arrest and trial by a military tribunal of businessman Chafik Jarraya accused of corruption; he is also being investigated for’ dealing with a foreign power in peacetime, crimes that are liable for imprisonment or even the death penalty. The Director of Human Rights Watch in Tunisia opined that “In a real democratic transition, military trials for civilians or secret detention have no place, regardless of the seriousness of the charges."

Me Armor Saadoui, an experienced counsel, agrees with the need to have a military nexus before trying anyone before a military tribunal: “Military courts must remain special courts, reserved for military crimes and offenses in the strict sense, that is to say within the barracks, relating to the military function" particularly since in his opinion,” military justice serves as a tool of political control. He adds: "There is as yet no independence of justice in Tunisia, both in legal texts and in their application." Meanwhile, the number of cases dealing with civilians brought before military tribunals continues to grow.

House votes down random jury selection

"Honestly, I didn't know that … I was so closed-minded, that I was a rapist, that I was a murderer, that I was a sexual assaulter, that I was all of these things until I came to Congress and heard often from my colleagues how horrible I was when I was in uniform as a commander and how incapable I was in being able to meet justice and make decisions," [Rep. Steve] Russell [R.-OK] said during the committee debate. "But now I learn that maybe I just didn't realize who I was."

From the Washington Examiner's account of the debate in the U.S. House of Representatives on an amendment offered, unsuccessfully, by Rep. Jackie Speier [D.-CA], to require random selection of court-martial members. Rep. Russell is a retired Army lieutenant colonel.

Tuesday, June 27, 2017

Why is this case in military court?

A Hamas military court in Gaza has convicted four drug dealers and sentenced them to death, according to this Al Jazeera account. Excerpt:
Last year, Hamas politicians passed a law deeming drug dealing to be a national security threat, which opened the door for trying drug traffickers before military courts. Nasser Suliman, the head of Gaza's military judiciary, said there were at least 30 cases of drug dealing before his courts. 
The two who received death sentences in March were government security officers "who were not deterred from previous lighter punishments and returned to the trade", Suliman told Al Jazeera.
Under military law, penalties against dealers are usually stricter than those granted by the civil code, Suliman said. Penalties are also lighter for users, as compared with dealers: "If an addict resorts to treatment, he is spared from punishment."
Why try drug cases in a military court?

Trump administration sends a new (old) case to a military commission

The Trump administration has sent the case of a long-time Guantanamo detainee to a military commission for trial. The case charges an Indonesian citizen with attacks in that country in 2002-2003. Details here, courtesy of The Daily Beast. Excerpt:
A Trump administration official familiar with an internal and still-unfolding debate over the future of detentions told The Daily Beast that charging Hambali was “short-sighted” and “indicative of a lack of understanding of the complications of U.S. detention policy,” particularly without a broader policy framework for the Hambali case.
“It’s kicking off a procedure that will take an indefinite period of time. This system doesn’t work,” said the official, who was not cleared to speak publicly.

Is the South Sudan rape trial a publicity stunt?

Roger Alfred Yoron Modi writes here about an ongoing rape court-martial in South Sudan. Excerpt:
A trial of thirteen South Sudanese soldiers accused of raping foreign aid workers and killing a local colleague is ongoing in Juba. The events being examined occurred in July 2016 at the Terrain Hotel following a three-day battle in the capital. 
The fact that these government troops are being tried may appear to be a positive development amidst the country’s devastating conflict, lack of accountability, and dire humanitarian situation. It will be for the victims if justice is served. 
However, in terms of tackling impunity in South Sudan more broadly, the trial is sadly little more than a publicity stunt – and one that could even forestall wider justice in the country. 
The incidents at Terrain Hotel are a drop in the ocean when it comes to the extensive crimes committed since the start of the war. Moreover, the fact that the case is being heard in a military court further undermines the establishment of the Hybrid Court, the body supposed to investigate and prosecute such crimes in the interests of all South Sudanese.

War crimes v. crimes against humanity v. murder

How important is it to pursue charges of crimes against humanity or war crimes charges as opposed to simply pressing murder charges? The UN has objected to the abandonment of the first two in favor of the third in a Democratic Republic of Congo court-martial. According to this account:
"We regret" the tribunal's decision, Jose Maria Aranaz, director of the United Nations joint human rights office (UNJHRO) and representative of the High Commissioner for Human Rights in the DRC, told AFP. 
"Prosecuting these crimes is a way of preventing other legal violations and further excessive use of force by the armed forces," Aranaz said. 
The seven soldiers were on trial for war crimes and other offences -- including murder, mutilation and cruel, inhumane and degrading treatment -- apparently committed in the Kasai region. 
They are being prosecuted after a video emerged in February showing a group of uniformed men opening fire on civilians, then walking among at least 20 bodies. 
The alleged incident occurred during an operation in a village called Mwanza Lomba in Kasai, according to the government. 
On Saturday prosecutors in the trial, which began on June 5, dropped the war crimes charges but kept the murder charge and others. 
"You can justify dropping the war crimes charges because there is no declared conflict in the Kasai," Aranaz said. 
But it would have been important to prosecute the officers for crimes against humanity because it would send "a strong signal in the direction of those who are implicated in the violence in Kasai." 
Spiralling unrest 
An attorney at the trial, Jimmy Bashile, told AFP that military prosecutors, pressing charges of murder against five of the accused, on Monday sought jail terms of life or 20 years against two majors, a captain, lieutenant and a sergeant-major. 
They also called for a 10-year term against a sergeant-major for failing to denounce the crimes and a 12-month suspended term against another non-commissioned officer for handling images sent to him by one of the accused.

Monday, June 26, 2017

A look inside Venezuela's military courts

Americas Quarterly has this vivid story about the use of military courts to try civilians in Venezuela. Excerpt:
This has grave consequences for defendants. Lawyers familiar with Venezuela’s military court system say that it operates under different rules than civilian courts, and puts detainees at a clear disadvantage. For a start, the judges are military officers picked by the Ministry of Defense, and so depend on the executive branch for their jobs. The prosecutors tend to be officers of lower military rank than the judges, and are therefore unlikely to feel free to make independent decisions, said Ali Daniels, a legal expert at the Venezuelan NGO Acceso a la Justicia
Private lawyers are allowed to represent detainees, but they’re often denied access to police depositions, which are the basis for accusations against their clients. When they can see depositions, they are not allowed to get copies of them. 
“It's a form of intimidation,” Daniels said. “They try to make every step so hard that you eventually want to give up.” 
In many cases, the government has done little to present its legal case against demonstrators. In [Carlos] Ramírez’s case, the military judge granted the prosecution 45 more days to find additional evidence. The defense, however, is hamstrung, since they don’t know the exact contents of the testimony they are challenging. The declaration read at Ramírez’s hearing has not been made public or available to his lawyers, said Pedro Troconez, one of the lawyers from Barquisimeto, who later filed a complaint to be allowed onto Ramírez’s case.

New rules in India may affect independence and quality of Armed Forces Tribunal

The Government of India recently issued The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These rules affect a variety of tribunals, including the Armed Forces Tribunal, which has appellate review power over courts-martial and other military personnel matters. Global Military Justice Reform contributor Wing Cdr. (ret) UC Jha has written this analysis for DNA India:
On June 1, 2017, the Ministry of Finance notified The Tribunal, Appellate Tribunal, Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 in the Gazette of India. The Rules, effective from June 1, have amended 19 existing laws, including the Armed Forces Tribunal (AFT) Act, giving wide-ranging powers to the government pertaining to the appointment and removal of members to various tribunals. In the past, the government used to appoint departmental Standing Committees and invite comments from the public before notifying such rules into the law. For instance, AFT Bills of 2005 and 2012 were examined by the Parliamentary Standing Committee on Defence. 
Chairperson and members 
In contrast to earlier provisions in the AFT Act, where only a retired judge of the Supreme Court or a retired chief justice of a High Court could be appointed as Chairperson, now a serving judge or any person “who is qualified to be a judge of Supreme Court” could be appointed as the Chairperson of the Tribunal. There is no change in the qualification of a judicial member and a serving or retired judge of a High Court could be appointed as such. 
As far as the AFT’s administrative members are concerned, so far the appointment was confined to retired major generals or equivalent ranks in two other services and retired advocate generals. The Rules of 2017 now provide that any person “of ability, integrity and standing having special knowledge of, and professional experience of not less than 20 years in, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which in the opinion of the Central Government, is useful to the Armed Forces Tribunal” could be appointed. The amended law does not require a member to have any expertise in law or military ethos. This dilution of membership of an important appellate tribunal appears unjustified. 
Search-cum-Selection Committee 
Under the Rules of 2017, the chairperson of the AFT shall be appointed by the central government in consultation with the Chief Justice of India. Earlier, the Chairperson and other members (judicial and administrative) of the AFT could be appointed only by the President, after consultation with the Chief Justice of India. The posts of Vice-Chairperson and judicial and administrative members of the Tribunal will now be filled by a “Search-cum-Selection Committee” which shall consist of the Chairman and three members. The four-member Search-cum-Selection Committee will consist of one Supreme Court judge (nominated by the Chief Justice of India), Chairperson of the AFT (appointed by the government), the Defence Secretary and another executive; thus giving a majority say to the government in selection of members for the AFT. In addition, the criteria for the removal of members have been diluted and the Ministry of Defence will have the power to constitute a committee to recommend removal of a member. 
The Supreme Court has earlier made it clear that the selection committee for appointments to tribunals should be balanced with members from the judiciary and the executive, rather than loaded in favour of the latter. A Constitution Bench of the SC, in the case of Madras Bar Association v. Union of India (2010), had struck down provisions related to the National Company Law Tribunal because the five-member selection committee had only one member from the judiciary while the rest were from the executive. The Rules of 2017 have amended laws to open the doors for the government to usurp powers pertaining to the appointment and removal of members of the AFT. The amendments introduced by the Rules of 2017 appear unconstitutional. 
The armed forces have an independent legal system. By virtue of section 152 of the Army Act, trial by a court martial is a judicial proceeding and court martial is a court within the meaning of Criminal Procedure Code. The power of judicial review over the military legal system must be exercised by independent, impartial and qualified persons, maintaining the standards of a High Court.
Passing over the strange -- to American eyes -- procedure under which the executive branch may amend legislation, it does appear that the 2017 Rules have the effect of eroding the quality and independence of the AFT bench. Of course there are fundamental questions surrounding the AFT more generally, such as why non lawyers, whatever their other credentials, should be voting members in the first place of what is, after all, a court of law. Issuance of the 2017 Rules without prior opportunity for public comment also seems a bad business, and Wing Cdr. Jha is quite right to point it out. Readers in India are invited to comment on the constitutionality of the new rules. Will Madras Bar doom them, as he predicts? (Please comment under your real name.)

Sunday, June 25, 2017

Consent is not enough

President Miriam Naor
Supreme Court of Israel
The High Court of Justice in Jerusalem has rejected a government appeal seeking to overturn a ruling concerning the power of military officials to conduct consent searches of soldiers' telephones unless they have a warrant. The Jerusalem Post has the story. Excerpt:
The High Court of Justice rejected a military prosecution appeal on Monday that sought to overturn a previous court ruling barring warrantless searches of soldiers’ cellphones. 
The decision led by the court’s president Miriam Naor did not take a stance on the military prosecution’s argument – that only a soldier’s consent is needed to search his or her cellphone, not a warrant.
However, Naor said that legislation should be considered, not an appeal in the courts, if warrantless searches are necessary. 
The High Court said that a previous ruling by a military court of appeals in November 2016 stands. The decision requires the military police to obtain a warrant to search soldiers phones, even if the soldier consents to the search.
“The fundamental question before us is whether the consent of the suspect is adequate in order to authorize investigators to search a mobile phone – this question will remain theoretical and will not affect the outcome of the procedure,” the court’s decision said.

Kings Point and sexual misconduct

Newsday, the Long Island newspaper, has this report on steps being taken to deal with sexual misconduct at the U.S. Merchant Marine Academy. Cadets at Kings Point are not subject to the Uniform Code of Military Justice, but the issues that can arise replicate those at the other service academies. MMA is located in the Department of Transportation's Maritime Administration. Excerpt from the article:
After Newsday’s inquiries about reforms to the sexual assault response program, academy officials said last week that the school is in the process of hiring a Special Victims Counsel.
The 74-year-old school, which comes under the U.S. Department of Transportation, does not conform to the Uniform Code of Military Justice, the rules and regulations that define the justice systems at the academies for the Army, Navy, Air Force and Coast Guard. That has put USMMA in a unique position, potentially hampering efforts to improve the reporting and judicial process for assault victims on the Kings Point campus, lawmakers and advocates said. 
USMMA, with its accreditation placed on warning by the Middle States Commission on Higher Education in June 2016, is under increased scrutiny to address its efforts to prevent sexual assault and sexual harassment, as well as to correct weaknesses in governance and leadership. The commission’s decision on whether the academy’s leaders have done enough to return to good standing is expected later this week. 
Changing the Merchant Marine student culture from one that blames the victim to one that advocates for the victim was among the recommendations in an independent study released in January by Logistics Management Institute of Virginia. The 138-page audit, commissioned by the Transportation Department, described victims’ lack of trust in the system and noted that the absence of independent legal counsel for victims worked to “hinder the effectiveness of the Academy’s response to sexual assault.” 
Among other reforms the academy should undertake, the report said, were creating a policy that prohibits retaliation and ostracism; establishing a 24-hour helpline for confidential reporting of sexual assault, both on campus and during the intensive Sea Year training program, modeled on the helpline used by the other service academies; and setting up a forum for victims to exchange information with leadership and other victims.

The litigation track bill

“Because JAGs transfer so frequently, most do not gain the necessary experience to try cases, defend the accused, or represent a survivor adequately,” she said in a statement. "Moreover, JAGs are encouraged to have a broad range of experience, which means that a JAG who has very little experience trying cases may be assigned to a complex sexual assault case. Our service members deserve better. Our bill will change that and model the military justice system after the civilian system where lawyers become experts in their fields.”

Sen. Kirsten Gillibrand (D-N.Y.) on a bill that would require all branches of the U.S. armed forces to create a specialized litigation career track for judge advocates. Sen. Joni Ernst (R-Iowa) co-sponsored the bill.

Another conscientious objector jailed in South Korea

Even though the issue of conscientious objection is pending before the Constitutional Court, the Supreme Court of the Republic of Korea has once again overturned the acquittal of a conscientious objector. The Korea Herald has the story here:
In the latest case, the 22-year old man identified by the surname Shin was tried for refusing to join the military after he received his draft letter in December 2015. The first court to try Shin had found him innocent, saying that forcing him to serve military duty against his religious beliefs was “demolishment of existential value” of Shin as a person. However, the appeals court sentenced him to an 18 month imprisonment, saying that that religion cannot be considered a justifiable reason for refusing military service under current laws, and social system. 
“Conscientious objection does not qualify as ‘justifiable reason’ for exempting from punishment under current laws,” the Supreme Court said in its ruling. 
“The UN Human Rights Committee recommendation against penalizing conscientious objectors is not legally binding,” it continued.

Friday, June 23, 2017

CAAF Rules Guide 16th (LexisNexis 2017)

LexisNexis has published the 16th edition of the Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces, by Dwight H. Sullivan and the editor of this blog. Details can be found here. Available in print and ebook formats. $188.

Ah, Pakistan . . .

It is reported here that Pakistani authorities are considering referring another 227 persons to military courts for trial. These civilians have already been confined, some for years, awaiting trial before the Anti-Terrorism Courts, but the authorities have now concluded that military trials are necessary because two other men broke out of jail recently. Excerpt from Dawn:
The decision was taken after the recent escape of two high-profile militants affiliated with the banned sectarian outfit Lashkar-i-Jhangvi from Central Prison Karachi, said the officer while speaking at a press conference at his office. 
Their military trial was necessary when such hardcore militants had created an “intimidating atmosphere” in the prison where they acted as ‘dons’ while cases against them had been pending trial before antiterrorism courts for the past many years, he added.
Some three months ago, the CTD had written a letter to the relevant authorities asking them that around 60 UTPs, including the two LJ militants who had recently escaped from the prison, should be moved from Karachi to jails in other parts of Sindh, he said.
There were several reasons for this recommendation, the officer disclosed, explaining that the CTD had apprehensions that the militants might reactivate their networks in the metropolis. He said the recent escape of Mumtaz Shaikh and Ahmed alias Munna, who had been allegedly involved in more than 60 murders, from the Central Prison Karachi vindicated their stance.
Thus, Pakistan's military courts are now taking the place of both the civilian judiciary and the Anti-Terrorism Courts. Pakistan's military courts do not come close to meeting contemporary standards for independence and the observance of human rights principles.

Shifting gears a bit, it has also been reported that Pakistan's military court of appeal has denied the appeal of Indian citizen Kulbhushan Jadhav, who is under a sentence of death from a military court. Clemency can be granted by the Chief of Army Staff or the President of Pakistan.

Thursday, June 22, 2017

Under UN pressure, Republic of Congo to withdraw troop contingent from CAR

The UN Secretary General has issued the following note to correspondents:
The UN Secretariat has concluded a review of the deployment of uniformed personnel from the Republic of Congo in the UN Mission in the Central African Republic, MINUSCA. 
The UN recognises the importance of the sub-region in the resolution of the crisis in the Central African Republic and expresses its appreciation for the constructive role played by the Republic of Congo, and President [Denis] Sassou-Nguesso as international mediator during the Transition and after the election of President [Faustin-Archange] Touadera, and looks forward to their continued political engagement to bring stability to the Central African Republic. 
The review of the deployment of uniformed military personnel from the Republic of Congo found that the nature and extent of existing allegations of sexual exploitation and abuse, in their totality, point to systemic problems in command and control. These problems have also been compounded by issues related to the preparedness, overall discipline, maintenance of contingent owned equipment, and logistical capacity of these troops. 
The outcome of the review has been shared with the authorities of the Republic of Congo, who have decided to withdraw their military personnel deployed in MINUSCA. 
The Government of the Republic of Congo has reiterated its commitment to United Nations peacekeeping and stability in the Central African Republic. The Secretariat is working with the Republic of Congo and MINUSCA on the modalities for a speedy withdrawal that will have the least impact on the mission's operational requirements and ability to implement its mandate. 
The United Nations stands ready to assist the Republic of Congo authorities by identifying factors in the areas of leadership and command, performance, conduct and readiness, to enable them to address these gaps and for Republic of Congo military contingents to be eventually considered for future deployment to United Nations peacekeeping operations. 
Failures identified with the military contingent are not reflected by the performance of the police contingent from the Republic of Congo, also deployed with MINUSCA. Therefore, the police contingent will be retained. Nonetheless, the Republic of Congo authorities have been requested to urgently inform the United Nations of accountability measures they have taken regarding the one substantiated allegation of sexual abuse involving a Republic of Congo police personnel.
Highlighting added. 

Wednesday, June 21, 2017

New JAG for Canadian Forces

A new Judge Advocate General has been named for the Canadian Forces. Details here.
Defence Minister Harjit Sajjan announced the appointment of Captain (Navy) Geneviève Bernatchez as the fifteenth Judge Advocate General (JAG) of the Canadian Forces and the first woman to hold this position. Captain (Navy) Bernatchez will be promoted to the rank of Commodore and succeed Major-General Blaise Cathcart who will retire later this year, according to the Department of National Defence. A formal change of appointment ceremony will take place on June 27 in Ottawa.
Congratulations to Captain Bernatchez on her selection and forthcoming promotion -- and to General Cathcart on his forthcoming retirement.

Tuesday, June 20, 2017

Office of the High Commissioner speaks out on lèse majesté cases in Thailand

The Office of the High Commissioner for Human Rights has issued the following statement concerning lèse majesté cases in Thailand:
We are very concerned by the rise in the number of lèse majesté prosecutions in Thailand since 2014 and the severity of the sentencing, including a 35-year jail term handed down last Friday against one individual. A Thai military court found Wichai Thepwong guilty of posting 10 photos, videos and comments on Facebook deemed defamatory of the royal family. 
He was sentenced to 70 years in jail, but the sentence was reduced to 35 years after he confessed to the charges.
This is the heaviest sentence ever handed down under Article 112 of the Criminal Code, which is also known as the lèse majesté law. The previous heaviest sentences were handed down in 2015, when three people were jailed for between 25 and 30 years by military courts on the same charges. The offence carries a penalty of three to 15 years in jail for each charge of insulting the monarchy. 
Between 2011 and 2013, 119 people were investigated for insulting the monarchy. Over the last three years, between 2014 and 2016, that figure has more than doubled to at least 285. 
Statistics provided by Thai authorities show there has been a sharp fall in the number of people who have been able to successfully defend themselves against lèse majesté charges. From 2011-13, around 24 percent of people charged with the offence walked free, but over the next three years, that number fell to about 10 percent. Last year, that figure was only 4 percent.
While our Office appreciates the complexity and sensitivity of the issue surrounding lèse majesté in Thailand, we are deeply troubled by the high rate of prosecutions and the courts’ persistence in handing down disproportionate sentences for the offence. All people have the right to freedom of expression, including when it comes to criticising public figures.
Imprisonment of individuals solely for exercising the right to freedom of expression constitutes a violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Thailand acceded to in 1996. In March 2017, the UN Human Rights Committee, which reviews implementation of the ICCPR, concluded that Thailand should review Article 112 of the Criminal Code to bring it into line with Article 19 of the Covenant. 
We also have concerns about the conduct of the trials since the military coup of 2014. Most of the lèse majesté cases have been tried before a military court, and the hearings have been closed to the public. Most of the accused have been denied bail and some held for long periods in pre-trial detention. While we welcome the Government’s decision in September 2016 to cease hearing future lèse majesté cases in military courts, we reiterate our call to authorities to apply this is to all pending cases, retroactively. 
Our Office calls on the Thai Government to immediately amend the lèse majesté law to bring it in line with international human rights standards and to review all cases brought under Article 112 of the Criminal code.
Emphasis added.

Monday, June 19, 2017

Unusual DuBay order in the Barry case

The U.S. Court of Appeals for the Armed Forces today issued the following important order in United States v. Barry, No. 17/0162/NA (footnote omitted):
On consideration of Appellant’s petition for reconsideration of this Court’s order of April 27, 2017, summarily affirming the decision of the United States Navy-Marine Corps Court of Criminal Appeals, Appellant’s motions to appoint a special master, to supplement the record, and for oral argument, and Appellee’s motion to remand for new post-trial processing, we note that Appellant has presented an affidavit from the convening authority averring that he felt pressure from senior civilian and military leaders to approve the findings in this case. In order to resolve this allegation of unlawful command influence, we conclude that further factfinding must be conducted pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Accordingly, it is, by the Court, this 19th day of June, 2017,
That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue: 
In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied. 
The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).
The hearing shall be completed and the record returned to this Court no later than November 1, 2017.

Sunday, June 18, 2017

Judicial independence in Spanish military courts

The General Council of the Judiciary (CGPJ) in Spain annulled an order issued by the Central Military Tribunal calling on military judges to advise their commanders about on-going investigations. Last February the Central Military Tribunal approved an order, which was not limited to setting forth work hours or attention to the public, but included instructions to the judges as to how they should carry out their investigations.  It required these judges to go to the military installations where the death of a member of the military occurred, or any other serious act, which might have appeared to have been a military offense, even if in the final analysis it was not.

The most grievous part of the order was that it instructed the judges to contact "the chief of the unit in charge of the military place where the offense occurred" once they learned of the act.  They had to inform the commander of the unit of the existence of a judicial investigation, even if it was declared secret, before knowing whether the commander was implicated in the possible offense.

This order was criticized because it appeared to be an "interference" in the work of the military judges, whom it converted into mere "subordinates" of the commander, placing at risk the independence of their investigations.

The CGPJ did not issue an opinion about the hypothetical disciplinary responsibility of the members of the Central Military Tribunal, but it annulled the order because it considered it issued by an "organ manifestly incompetent" to have done so.

Facebook, blasphemy and military courts

A military court in Pakistan has sentenced a man to death on charges that include blasphemy. Details here. The News on Sunday reports:
Earlier in the month, 30-year-old Taimoor Raza was sentenced to death, via a military court, for allegedly committing blasphemy on Facebook. This is the first instance of a sentence being handed down, for an alleged crime, committed on social media. Further troubling is the fact that Raza was tried, not through regular courts, but via a military court, because the charge sheet brought against him included counter-terrorism offences as well.

Israeli AG opines on permissibility of warrantless consent search of soldiers' cellphones

Haaretz reports that Attorney General Avichai Mendelblit (a former Military Advocate General), has issued an opinion supporting the prosecution's appeal of a Military Court of Appeal decision requiring a warrant to search soldiers' cellphones even if the owner consents to the search. Excerpt:
Mendelblit write the opinion regarding an appeal filed by military prosecutors to the Supreme Court on conducting searches of soldiers' phones without a warrant.
Military prosecutors want the court to overrule the military court of appeals, which ruled in November 2016 that extracting information from a soldier’s phone using laboratory techniques, based only on the soldier’s consent, was illegal.
Mendelblit wrote that the military court of appeals made a significant mistake since the suspect’s permission to carry out the cellphone search provides the authority to do so, even without a judicial search warrant.
Once someone under investigation agrees to such a search, they waive their right to privacy, said Mendelblit. If the suspect gives informed consent (with or without limitations), a search warrant becomes unnecessary. The use of a search warrant is not the only way to conduct a legal search of a cellphone, added the attorney general.
The Supreme Court is due to hear the government's appeal tomorrow.

Saturday, June 17, 2017

Follow-up on the news

Ex-Major Zaidi Ahmad, RMAF
He's back in the news again: former Royal Malaysian Air Force Major Zaidi Ahmad, who went into politics in Penang after having been court-martialed for blowing the whistle in the "invisible ink" case, figures in a recent incident reported here in The Star.

Forced retirements in Nigeria

A furor has broken out in Nigeria over the forced retirement of 38 Army officers and the slow-rolling of action on their objections. According to this op-ed by Sani Tureta in This Day:
It has been over a year and their appeals have not been heard by the President or Acting President, it makes you wonder if incompetence is at play. It would be very disgraceful for the Nigerian Army if the retirements are reversed by the courts and it is confirmed that even just one of the retired officers is innocent and was never queried, charged, tried or found guilty of any offence. This is because [Chief of Army Staff] Gen [Tukur Yusuf] Buratai said he gave an opportunity for all the officers to be questioned in line with the army’s administrative procedures. This will therefore assign grave doubts to the credibility of the retirements and would be a sad confirmation of the observations of human rights bodies. We should have utmost regard and respect for our laws, rules and regulations. The arbitrariness and impunity of the past should not be perpetrated any longer in the Nigerian Army. It is distasteful and no longer fashionable.

Accused UK military personnel charged for legal representation

In the United States, military personnel accused of offenses are entitled to free lawyer counsel to represent them at courts-martial. This is so regardless of the accused's ability to pay (in contrast to civilian courts, where only those who are indigent have a right to free defense counsel).

In the UK, accused military personnel are afforded legal representation but must agree to pay a fee. According to this Daily Mail report, 
Soldiers face being found guilty for crimes they did not commit because they cannot afford to represent themselves in court after facing baseless claims, lawyers claimed yesterday. 
Military personnel of all ranks are being told by the Ministry of Defence they must pick up a bill of up to £9,000 to have a barrister defend them. 
Many of them cannot afford to make the increasing contributions and are turning up at court martials [sic] facing ‘excessive and unsupported’ claims with no legal advice, it is claimed.
* * *

Soldiers facing court martials [sic] for a variety of offences are typically told they have to make a contribution to the Armed Forces Criminal Legal Aid Authority (AFCLLAA). 
The amount they have to pay is means tested – but lawyers claim soldiers on small incomes are still being forced to pay staggering costs. 
In one case, a major serving overseas faced an allegation of ill-treatment of a subordinate after an alleged scuffle with a soldier who was on his iPhone. 
The member of his Company had been on the phone during a live fire training exercise. 
The major reprimanded him, removed his iPhone and told him his conduct was dangerous and wholly unacceptable behaviour.  
It was alleged, although disputed, that the major grabbed the clothing of the soldier and struck him. 
The major was told he had to pay £6,750 by way of contribution before he could receive legal aid, which he could not afford.
In some cases, The Military Mutual is stepping in to provide defense counsel. 

Friday, June 16, 2017

Navy TJAG urged to resign

A civilian attorney representing a Navy SEAL in a case involving alleged unlawful command influence (UCI) has suggested that the vice admiral currently serving as Judge Advocate General of the Navy should resign. The case is pending before the U.S. Court of Appeals for the Armed Forces. The latest developments are reported here.

The Court of Appeals has repeatedly described UCI as "the mortal enemy of military justice."

Thursday, June 15, 2017

European Parliament passes resolution on Pakistan

The European Parliament today passed a resolution (2017/2723(RSP)on the situation of human rights defenders and the death penalty in Pakistan. It states in part:

A. whereas military courts were authorised for two years while the civilian judiciary was supposed to be strengthened; whereas there has been little progress in developing the judiciary, and on 22 March 2017 the military courts were controversially reinstated for a further two-year period; . . .

C. whereas Indian national Kulbhushan Jadhav was convicted by a military court in April 2017 and sentenced to death; whereas the case is currently before the International Court of Justice on the grounds that he was denied consular access rights; . . .

* * * 
5. Deplores the use in Pakistan of military courts that hold hearings in secret and have civilian jurisdiction; insists that the Pakistani authorities grant access to international observers and human rights organisations for purposes of monitoring the use of military courts; calls also for an immediate and transparent transition to independent civilian courts, in line with international standards on judicial proceedings; underscores that third-country nationals brought to trial must be allowed access to consular services and protection;

ICC Appeals Chamber: A War Crime Does Not Have to Violate IHL

From Kevin Jon Heller at Opinio Juris:  One of the most basic assumptions of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL).

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

Closed-door session in Manila

The Supreme Court of the Philippines today conducted a closed-door session in the pending case concerning the Mindanao Martial Law declaration. This article has details, but does not reveal whether counsel opposing martial law were permitted to attend.

Title 32 National Guard court-martial reviewed in Wisconsin

The Wisconsin Court of Appeals has issued a lengthy opinion in State v. Riemer, No. 2016AP398, on review of a decision of a National Guard general court-martial. Todd Richmond's story for the Associated Press can be found here. The charges concern sexual harassment (e.g., suggesting a threesome) and related misconduct by a Wisconsin National Guard recruiter.

Unlike some states, Wisconsin does not have its own court of military appeals. Cases simply go into the state appellate courts.

Indian human shield case

Retired Major General S. G. Vombatkere, who retired as Additional DG Discipline & Vigilance in Indian Army HQ AG's Branch, has written a thought-provoking op-ed for The Citizen on a recent incident in which a man was used as a human shield. He writes in part:
Major [Leetul] Gogoi's unconventional initiative was a gamble played between the safety and success of the mission against the safety and [human rights] of Farooq Ahmed Dar. Fortunately the gamble paid off at least insofar as Major Gogoi and his command and the personnel rescued are concerned. What was lost was Farooq Ahmed Dar's HR and humiliation. 
Attempting to balance the “gain” of Major Gogoi (successfully rescuing the personnel and accomplishing his mission without casualties) against the “loss” of Farooq Ahmed Dar (violation of HR and intense humiliation) is not to trivialize the matter. However, this “balancing” can only be done by looking at the larger public good. To this writer's mind, more and longer lasting public good was achieved by Major Gogoi in saving the election personnel and avoiding casualties, than was lost by the undoubted illegal confinement of Farooq Ahmed Dar and violating his HR. 
The matter could and perhaps should have been resolved by completing the due process of the Commission of Inquiry, and then calmly and deliberately deciding whether or not Major Gogoi should be commended for his action, and if to be commended, do it unobtrusively. However, even while the C of I was in process, the Army Chief publicly commended Major Gogoi, thereby making the C of I useless – the Presiding Officer and Members of the C of I would not have been in a position to record their findings and views without prejudice. Effectively, the Army Chief intervened in the due process of military law, and provided unnecessary publicity to a controversial incident. 
Worse, by commending Major Gogoi so openly (it could have been done discreetly, without pugnacious statements) the incident has become politicised, while the message sent by the army chief to the junior leaders who face bullets, grenades and stones on a daily basis, is that using a human shield is okay. 
In the future, another young officer in a similar situation may premeditatively resort to Major Gogoi's spontaneous tactical precedent with the assurance that even if he is not commended, he will at the least not be proceeded against under military law. Thus using a human shield could well become a practice.
Is the author on firm ground in suggesting that "the larger public good" can justify what was done to Mr Dar?

A structural assessment of Indian military justice

With so much attention focused on the shortcomings of the Pakistani military justice system because of the case of Kulbushan Jadhav, Global Military Justice Reform Contributor Wing Cdr (Ret) U C Jha has called for some introspection in India about the country's own system. Offering a four-point critique, he writes here for Daily News & Analysis that the Indian armed services still function under separate disciplinary statutes and observes:
Firstly, the CO is empowered to try a military person for civil as well as military offences. For instance, if a military person commits murder or rape of a civilian on active service or in an area notified by the government, he would be tried only by a military court. The CO or higher authorities can award minor punishment to the individuals up to the rank of Major, but the accused has no legal help during the trial. The CO can award imprisonment up to 42 days to a havildar. There is no right to appeal against this punishment. 
Secondly, the CO can try a person up to the rank of havildar by summary court-martial and award punishment of one-year imprisonment and dismissal from service. The accused has no legal assistance during this trial. A court-martial constituted under military law determines both the findings and the sentence. The members of a court-martial are neither legally qualified nor trained in the administration of justice and exposed to varying degrees of command influence. A summary general court martial, constituted by three lay officers can award punishment up to death to any individual in the Army and in the air force. The accused can be denied formal charge sheet and legal aid on the grounds of expediency. The only solace is that the punishment of death needs confirmation from the Central government. 
Thirdly, the higher authorities confirming court martial have unrestricted power to mitigate, remit or commute sentences without giving any justification even in the cases of civil offences. Such power is liable to be misused by the military bureaucracy. The judge advocate (JA), the judicial branch of the military, is placed under the administrative and functional control of the same executive which orders a trial by court martial and reviews the proceedings. The officers of the JA department are not independent and cannot be expected to give a fair and just opinion. The processing of a grievance petition in the three services remains faulty. The officials who may be the root cause of the grievance process the complaint. The Armed Forces Tribunal (AFT) also does not have any jurisdiction in grievances relating to leave, postings, transfers, summary disposals, and trials. Ironically, these are the core issues leading to grievances and stress in the armed forces.
Lastly, the AFT has no power of civil contempt. There have been a large number of cases where the military authorities or the government has failed to take action on the decisions of the Tribunal. The Indian military legal system in its current form is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces needed to be self-contained. The world has moved forward in the last two decades and there have been major changes in the military justice systems of other democracies. It is time we strengthen our system and restore the confidence of the public in the quality of military justice.

Wednesday, June 14, 2017

Martial law litigation in Philippines

Pres. Rodrigo Duterte has declared martial law on Mindanao. Readers may want to keep an eye on the related litigation currently pending in the Supreme Court of the Philippines. This Philippine Star article includes a link to audio of the court's proceedings. According to this tweet (which was reproduced on the court's website), the hearing will resume tomorrow morning:

Day 2 of is now adjourned. Proceedings will resume tomorrow, June 15 at 10am