Where should this case be tried?

Tajikistan does not recognize conscientious objection. A Jehovah's Witnesses adherent has been drafted and refuses to serve. Should he be tried in a court-martial? The authorities think so, judgment by this report.

Presidential order in Cameroon ends court-martial of anglophone civilians

President Paul Biya of Cameroon has terminated the court-martial of a number of anglophone civilians. Details here. Excerpt:

CRTV’s John Mbah AKuroh, is one of many English-speaking Cameroonians who went on self-exile when government started arresting protesters. He said of the presidential decree: I have just heard the news read on CRTV (state TV) that President Paul Biya has ordered the ‘discontinuance of proceedings’ against Balla and co. I just want to ask, why is this coming from a president, in a land that claims to be the land of laws? Do we need any more proof that these individuals were being held illegally? Whilst I applaud this move by Biya, I must posit that it comes a little too late into the game. It is like putting Messi (football superstar of Barcelona FC) in a game with 1min left and Barcelona FC is down 10 goals! The Courts should be the ones to find that Balla and co committed no crime at all. And should pay up for having held them illegally for nearly a year.

All good points. For a recent similar intervention in Lesotho click here.

West Point cadet cannot bring Bivens case

In a 2-1 decision, the United States Court of Appeals for the Second Circuit today decided Doe v. Hagenbeck, a Bivens action against the former Superintendent of the U.S. Military Academy and the Academy's former Commandant of Cadets. The court's summary is as follows:

Appeal from an April 13, 2015 order of the United States District Court for the Southern District of New York (Hellerstein, J.), granting in part and denying in part Defendants’ motion to dismiss. Plaintiff‐Appellee Jane Doe — a former West Point cadet who alleges that she was sexually assaulted by another cadet — brought a Bivens action against two superior officers at West Point, Defendants‐Appellants Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities, for alleged violation of her Fifth Amendment right to equal protection. Because adjudicating Doe’s claim would require judicial interference into a wide range of military functions (including the training, supervision, discipline, education, and command of service personnel at West Point), triggering the incident‐to‐service rule, we conclude that there is no Bivens remedy available in this context. Accordingly, the order of the district court is REVERSED, and the case is REMANDED with instructions to dismiss.

Circuit Judge Denny Chin dissented. 

ICJ reports on 5 South Asian countries

The International Commission of Jurists has just issued a 58-page report, No more “missing persons”: The criminalization of enforced disappearance in South Asia, that deserves a close reading. Summarizing the situation in five countries in the region, it observes (pp. 17-18):

The inherent lack of independence from the executive of military tribunals make the use of tribunals unsuitable in cases against civilians or which concern violations of the human rights of civilians. Indeed, such courts have frequently acted in countries around the world to shield those responsible for human rights violations from criminal responsibility for their acts. Trials of persons accused of enforced disappearances as well as other serious violations of human rights should be excluded from the jurisdiction of military criminal courts, even where they are committed by military personnel.21 With regard to enforced disappearance, this exclusion is expressly enshrined in Article 16(2) of the DED. Even though the ICPPED [International Convention for the Protection of All Persons from Enforced Disappearance] does not make express provision concerning military courts, the Committee on Enforced Disappearance has stated that jurisdiction over the offence of forced disappearance should lie with ordinary courts, in terms both of the investigation of the crime and the trial.22

21 See e.g. Principle 29 of the Updated Impunity Principles; and the Draft Principles governing the administration of justice through military tribunals, UN Doc E/CN.4/2006/58.

22 Concluding observations on: France, CED/C/FRA/CO/1, 8 May 2013, paras 24 and 25; Spain, CED/C/ESP/CO/1, 12 December 2013, paras. 15-16; and the Netherlands, CED/C/NLD/CO/1, 10 April 2014, paras. 18-19.

Big UCMJ changes coming

Last December, Congress passed the Military Justice Act of 2016, which then-President Barack Obama subsequently signed. Senator John McCain noted that the Act “constitute[d] the most significant reforms to the Uniform Code of Military Justice since it was enacted.” The Executive Branch released draft implementing regulations on July 11, 2017, with a goal of issuing the final regulations by the statutory deadline of December 23, 2017. The Act will then take effect when directed by the President, but no later than January 1, 2019.

So tells us Lawfare.

U.S. practitioners may get to hear some further explanation if they attend the 5th Joint Appellate Advocacy Training, Rosenthal Theater, Joint Base Myer-Henderson Hall, Arlington, VA, 18 September (particularly the 0900 presentation on the 19th-vamos a ver).  Email me at mljucmj@court-martial.com for the flyer and information.

Volte-face in Turkey

So many prosecutions have been instituted based on the last Turkish coup attempt that the government has been compelled to recall fired military judges and prosecutors. Excerpt:

In a recent state of emergency decree, the government recalled former prosecutors and judges of military courts that were previously abolished. Justice Minister Abdülhamit Gül said the measure was taken in order to increase the number of prosecutors and judges per case and per person, in order to speed up the court process and avoid extended arrest periods. However, almost a third of those recalled were originally sacked because of their alleged links to the Gülenist network.

Mid-trial shift to military court

A murder case that had been partially tried in one of Pakistan's anti-terrorism courts is to be shifted to a court-martial on the ground that it was proceeding too slowly, according to this account. The victim was a former Home Minister. Excerpt:

The sources said the murder case was shortlisted for transfer to the military court since the trial of the suspect had been proceeding at a snail’s pace.

The prosecution listed 130 witnesses but only six of them testified before the Anti-Terrorism Court (ATC) Rawalpindi.

Another reason for the inordinate delay was that the case had been registered under the controversial Protection of Pakistan Act (POPA).

The federal government promulgated POPA but failed to establish and equip the courts as per requirement under the law. 

POPA lapsed last year in accordance with its two-year sunset clause and the government did not give the law a new lease of life.

Subsequently, cases registered under POPA were transferred to the ATCs of the respective jurisdictions.

The murder case of the home minister was transferred to the ATC after the law expired.

Sorry to be dense about this, but what case requires 130 witnesses, and why weren't the necessary steps taken by the judge in the civilian court to move the matter along? Never mind the part about civilians not being tried by military courts.

Why was this case tried by a court-martial?

Off-base sexual assault against a civilian. Why did the Coast Guard try this case rather than civilian authorities? (And no, the presence of false statements about the offense to military investigators doesn't answer the question.)

How's this for an example of uncritical reporting?

"The case was handled in military court because of the alleged violation of Article 120 of the Uniform Code of Military Justice, [spokesperson Lt. Dana] Warr said. Article 120 deals with rape and sexual assault."

Did the local civilian prosecutor refuse to prosecute? The article doesn't say. 

Supreme Court of India takes cognizance of a Petition challenging the new rules for Tribunals and also excessive tribunalization at the cost of the regular judiciary

The Supreme Court has issued notice to the Central Government on a Writ Petition filed by me challenging the new rules promulgated for all tribunals by the Government and also seeking reform of the various tribunals in the country and a roadmap to check excessive tribunalization.

A report by Bar & Bench is appended below:

The Supreme Court today issued notice to the central government in a writ petition filed by (Punjab & Haryana High Court) Advocate and founder President of the Armed Forces Tribunal (AFT) Bar Association Navdeep Singh, seeking striking down of the recently promulgated rules for Tribunals. 

The matter came up for hearing today before a Bench of Chief Justice JS Khehar and Justices Dipak Misra and DY Chandrachud. 

The petition, citing the example of the AFT, states that the tribunal has been placed under the complete hold of the Ministry of Defence, which is the first opposite party in every litigation before the AFT. It further adds that the Defence Secretary has been made a part of the selection and reappointment committee for appointing members of the tribunal, thereby making the primary litigant select its own adjudicators.

It also states that the Centre has notified the Rules despite orders of the Punjab & Haryana High Court to the contrary, on which there was no stay by the Supreme Court. The petition further challenges the clause decreasing the tenure of members and lowering their status and a new provision allowing them to take up government employment after retirement from the tribunal, which was prohibited till now.

More importantly, the petition states that while promulgating the Rules, the officers concerned have acted diametrically opposite to the views of the political executive since even the Prime Minister and the Law Minister had made statements favouring reform and independence of tribunals. The petition states that the real reason behind tribunalization was “not to reduce pendency, but to create post-retirement havens and tacitly and slowly encroach upon the traditional jurisdiction of real Courts, including issues of personal, individual and civil rights”.

Calling out the myth of reduction of pendency, the petition points out an example of defence related cases, which have increased from 9000 to 16000 after creation of the AFT.

Moreover, work in tribunals comes to a complete halt due to non-appointment of members. The petition states that the stress upon ‘expertise’ in tribunals is overemphasized since “judicial opinion is through assistance from both sides of the dispute through counsel or through expert opinions, and for the same, the expert need not sit as an adjudicator which can result in subjectivity and over-familiarity rather than a dispassionate and detached approach”.

It has also sought a roadmap for reforming tribunals and returning certain jurisdictions back to the regular courts. The petition has also questioned why the regular judiciary was not being strengthened rather than excessive tribunalization. The Petition has averred that in case a lack of expertise is perceived, then specialized courts such as Commercial Courts should be incepted within the regular judiciary. Alternatively, a system of more stable rosters must be effectuated in Courts, in line with the expertise and aptitude of judges.

The Petition has also sought judicial review over tribunal decisions in Division Benches of High Courts as held by a Constitution Bench in L Chandrakumar’s case, rather than the inaccessible and unaffordable appeals provided from some tribunals directly to the Supreme Court.

Military service by transgender individuals

Pres. Donald J. Trump

President Trump's Aug. 25, 2017 directive on military service by transgender individuals can be found here.

Hate speech: is there a policing role for the military?

Femi Falana SAN

This just in from Nigeria:

Femi Falana, human rights lawyer, says it is unlawful for the military to arrest perpetrators of hate speech in the country. 

Falana said this while reacting to the purported directive of the federal government to the military to clamp down on purveyors of hate speech. 

Earlier this week, the military had announced that it will be on the lookout for comments and utterances that could threaten the nation’s peaceful co-existence. 

In a statement issued on Saturday, Falana said it is only the Nigerian police force that is empowered to carry out such a directive in line with their responsibility of maintaining law and order.

The full article appears here.

Lesotho mutiny court-martial to be disbanded

The mutiny court-martial of 23 members of the Lesotho Defence Force is to be disbanded, according to this report. Excerpt:

The LDF has claimed the alleged mutiny plot was masterminded by former army commander, Lt-Gen Maaparankoe Mahao who was shot dead by his colleagues who had come to arrest him for the suspected mutiny in Mokema on 25 June 2015. 

However, a SADC [South African Development Community] Commission of Inquiry into the incidents surrounding the former army chief's killing concluded that the LDF's case against the alleged mutineers was "highly suspect" and recommended that they be granted amnesty by the government. 

The government halted the court martial last month, with Communications Minister telling a local publication they were yet to decide on the next step. 

However, Dr [Thomas] Thabane told the SABC earlier this week he had decided to cancel the court-martial. 

"I am going to cancel the ongoing court-martial straight away because it is unfounded and baseless," he said.

Better late than never. 

Accountability and peacekeeping

Bruce Rashkow, who previously served both at the U.N. Office of Legal Counsel and the Department of State, has an important and timely new article: Above the Law? Innovating Legal Responses to Build a More Accountable U.N.: Where is the U.N. Now?, 23 ILSA J. Int'l & Comp. L. 1 (2017). Part III of the article traces the organizations efforts to address the problem of indiscipline on the part of U.N. personnel, including peacekeepers. Recent developments are significant -- notably the Secretary General's 2016 and 2017 reports on combating sexual exploitation and abuse (SEA) -- but the author's conclusion is, at best, guardedly optimistic (pp. 30-31 (footnotes omitted)):

The situation regarding SEA is in a sense simpler and more complex. As the Kompass Report amply demonstrates, the problems that have arisen were primarily driven clearly by failures to timely and conscientiously follow existing mandates on U.N. offices and officials and the specific regime that governs SEA. While that Report concludes that “fragmented bureaucracy” contributed to the failure of the U.N. to prevent the sexual abuse of children in the CAR [Central African Republic], it also identified a “culture of impunity” and an “abdication of responsibility”. Thus, it is clear from the report that the primary cause was the failure of individuals with clear responsibilities and clear opportunities to act, failed to do so. It is extraordinary that three of the highest-ranking officials in the U.N. were found to have “abused their authority” and that seven other high officials were the subjects of “adverse observations” in this regard. A close reading of those findings must lead one to conclude that the failure in this instance was one of individuals to act conscientiously and timely under existing mandates and policies. 

That said, the SEA situation is more complex in that it must address the tensions between a vigorous and timely response to allegations of SEA and the reluctance of troop contributing countries to surrender the exclusive authority they have over their forces in a peacekeeping mission. This tension addresses the regimes that govern SEA, and particularly the response by troop contributing countries to allegations of SEA by their
troops. This tension became obvious with the Zeid report and is reflected again in the response of the Secretary General to the twelve Kompass Report recommendations, especially the three that were originally “under consideration” as well as some of the five that were originally “partially accepted.” 

The new Secretary General, in his February 2017 SEA report, seeks to resolve that tension, as did the Zeid and Kompass reports, in favor of greater protections and more effective and timely responses to SEA. Specifically, his proposals more fully reflect acceptance of the five recommendations that were previously only “partially accepted” as well as the three that were only “under consideration.” All eight of those recommendations, as previously noted, relate to the traditional exclusive authority of troop contributing states over their forces. There is no doubt that progress has already been made, and more will be made. However, it remains to be seen whether and to what extent the proposals relating to those eight recommendations in the Kompass Report will be accepted by the General Assembly, including most importantly by the troop contributing states who have resisted in the past serious inroads to their traditional exclusive authority.

Houston Riots court-martial of 1917

Today's Washington Post has a powerful story about the Houston Riots of 1917. The ensuing mass court-martial of 63 black soldiers represented by a single nonlawyer counsel led to the execution of 13 men without appellate review. The resulting outrage sparked military justice reforms in 1920. Now posthumous pardons are being sought for three of the GIs who were hanged.

Caution advised when seeking to draw lessons from history

Prof. Martin S. Lederman

Prof. Martin S. Lederman of Georgetown University Law Center has written a remarkable, rigorous article titled Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals, 105 Geo. L. J. 1529 (2017), the first of two in a series. His conclusion gives a sense of his project, which is, among other things, to caution against uncritical acceptance of claims of past practice with respect to the trial of offenses by military tribunals (p. 1680 (footnotes omitted)):

[D]uring the Civil War the military (and, to a certain extent, President Lincoln himself) did act on the presumption that the political branches have extensive, albeit not unlimited, authority to subject domestic-law offenders to military justice in a wide range of circumstances—culminating in “the highest-profile and most important U.S. military commission precedent in American history,” the 1865 trial of the Lincoln assassination conspirators. Not surprisingly, the government cites that dramatic example, together with a handful of less well-known trials in the Civil War and World War II, as having established a “longstanding practice of the government,” long after the Founding, that ought to “inform our determination of what the law is.” Likewise, the judges who have voted with the government in the al Bahlul case cited the Lincoln assassination proceeding—along with the Nazi saboteurs’ trial in 1942—as canonical authority that might liquidate a constitutional settlement. Accordingly, in a forthcoming article I examine whether such a fleeting but high-profile historical practice in two of the nation’s most important wars, and arguably endorsed by two of the nation’s greatest wartime presidents, offers persuasive justification for a broader military-tribunal exception to Article III. As this Article has demonstrated, however, whether or not those later landmark cases are to be afforded precedential respect, that question should be considered without any illusion that those adjudications were faithful adaptations of a well-entrenched practice derived from the Founding. To the contrary, they were, if anything, a sharp break from the original foundations—including the experience of the Revolutionary War—and a deviation from the guarantees enshrined in Article III.

Prof. Schlueter analyzes the Military Justice Act of 2016

Prof. David A. Schlueter 

One of the country's leading military justice scholars, Prof. David A. Schlueter of St. Mary's University School of Law, has just published an exhaustive 158-page analysis of the Military Justice Act of 2016. It can be found here. There is a great deal packed into the article, but two initial comments come to mind:

First, as Global Military Justice Reform has noted, Congress held no hearings on the bill that grew out of and drew heavily on the work of the Pentagon's Military Justice Review Group. Here is what Prof. Schlueter writes (p. 20):

"Congress considered the recommended changes, without holding any formal hearings on the legislation.90

"90. The Group’s Report explains that extensive consultations were held with a wide range of groups interested in military justice or with those who had prior experience in the system. The public was invited to submit suggestions to the Group for its consideration. Apparently, Congress was content that the DoD had sufficiently vetted the proposals and believed that hearings would not provide any additional benefit, except for publicity purposes."

More needs to be said, and perhaps other scholars who examine the law will do so and be more judgmental.

Under OMB rules, the Military Justice Review Group seemingly could not circulate a draft of proposed legislation to the public before anything had been submitted to Congress. There were numerous briefings and suggestions were solicited, but no one outside the government was, so far as is known, afforded an opportunity to comment on a draft of what eventually went to Congress. Then the train left the station.

The Review Group of course cannot be faulted for Congress's abject failure to involve the public (quite the reverse, it made substantial outreach efforts to let interested parties know how it was proceeding and provide a sense of where it was headed), but Congress can and should be faulted. Whatever "vetting" took place cannot plausibly be considered a substitute for meaningful legislative hearings. As this blog noted in vain on December 28, 2015,

One now must hope for open, meaningful, unhurried hearings before the House and Senate Armed Services Committees. The proposal unveiled today should be the beginning of the legislative process, not the end.

The fact that Congress wound up not accepting everything DoD proposed does not answer the mail on this point since the process that led to those alterations was itself not transparent. It is a pity that the legislative process functioned so poorly, in terms of public participation, on legislation this important. As this blog observed on May 26, 2016,

Shame on Congress for conducting the public's business in this fashion on an issue as important as military justice. "Public Law" is not a figure of speech. It is difficult to think of a more effective -- or more profoundly scandalous -- way to erode public confidence in the administration of military justice than to frame legislation, effectively, in secret.

Second, on the provision regarding undefined minimum tours (Pentagon-speak for "terms of office") for military judges, Prof. Schlueter writes (p. 38):

It is hard to imagine that an appellate court would reverse a court-martial conviction because a military judge was reassigned before the period of the tour ended. An accused is not entitled to any particular military judge. Thus, an accused would not have standing to complain that the military judge was reassigned before her tour as a judge was scheduled to end.

If this is so, hasn't Congress wasted its time in mandating trompe l'oeil minimum tours? Practitioners should not treat Prof. Schlueter's reading as the last word. Those involved in the development of implementing regulations should include some teeth so the legislation has real meaning from the standpoint of ensuring judicial independence.

Officers in trouble with civilian authorities: what to do?

What happens when a serving officer gets into trouble with civilian authorities? Can or should the military suspend him or her? This question is now front-and-center in a high-profile case involving an Indian Army lieutenant colonel. Details here, in a solid detailed report. Excerpt:

The release on bail of Lieutenant Colonel Prasad Shrikant Purohit, a key accused in the Malegaon bombing of 2008, has sparked a debate on his fate and his continuing service in the Army. 

Speculation is rife that Purohit would be suspended, but sources in the Army indicated that was unlikely. Purohit is likely to be attached to an Army unit close to the court where his trial will take place. According to the Defence Service Regulations for the Army, 1987, any military personnel arrested by civil authorities or facing trial in a civil court can be suspended from service depending on the nature of the offence. The discretion to suspend the personnel has been left to Army Headquarters, which is unlikely to do so. 

Paragraph 349 of the army regulations states:

“An officer may be suspended from duty by his OC [Officer Commanding] or any other superior authority, not only when he himself submits his case for investigation, but also in any case in which his character or conduct as an officer and a gentleman is impugned. An officer arrested by the civil authorities on a criminal charge may be suspended from duty from the date of his arrest, depending upon the nature of the offence and the extent of his involvement.” 

In Purohit’s case, the offence is grave. He is charged under several anti-terrorism and organised crime laws. The police have named him as the main conspirator behind the Malegaon bombing, accusing him of illegally procuring from the Army 60 kg of RDX explosive to carry out the attack. He was arrested in 2009.

Seventh Day Adventist prevails in Kenya court case

A court in Kenya has overturned the adverse action taken by the Kenya Defence Forces against an officer who was a Seventh Day Adventist. According to this account:

In giving the award, the judge said that religious and observance of a day of worship even for the people in the KDF or National Police Service cannot be limited. 

“The court has found that the petitioner’s right to free worship was violated and malicious prosecution and false imprisonment that was meted on him is unconstitutional” the judge said. 

Justice Nderi observed that KDF personnel worship in different denominations, including Catholics and Protestants and Muslims, saying that other faiths are not so particular about the day of worship unlike SDA.

*   *   * 

[Counsel] urged the court to make a declaration that the imprisonment for 42 days and deduction of the petitioner’s salary for six days was unlawful. 

The judge ordered that the petitioner be paid the amount, that includes exemplary damages of Sh3 million, general damages for lost earnings for 12 months be computed and filed in court within 30 days. 

He further directed that the petitioner be treated as an ordinary retiree and be paid lump sum and monthly pension as per the KDF Act

Retirees, the UCMJ, and human rights

The Uniform Code of Military Justice does not meet prevailing human rights standards in a variety of respects. One of them is the provision in Article 2 that permits the court-martial of retired regulars. The Army is conducting a preliminary hearing involving a long-retired major general who is accused of offenses going back to the 1980s. Details here.

Query: will defense counsel attack personal jurisdiction?

Tattoos and conscription

What does a country do when it relies on conscription and also has rules against tattoos? Consider this (illustrated) story about the prosecution of a draftee in South Korea:

On August 17, Judge Yoon at Seoul Southern District Court found Mr. Han guilty of attempting to avoid mandatory military service by damaging his own body. Thus, he was sentenced to 8 months of imprisonment in addition to 2 years of probation. 

According to the court, Mr. Han got his first tattoo at the age of 14 in 2011. He had a person's face on his left side of his chest and arm, as well as a dragon on his right side of his chest and arm.

In 2013, he decided to get his entire back area done with a dragon tattoo. The following year in 2014, he got a tattoo of a tiger lurking inside a deep forest going across his stomach and a serpent wrapping around both his legs. Towards the end of 2015, Mr. Han was completely covered in tattoos.

In November of 2016, Mr. Han went in for his physical examination at the Seoul Regional Military Manpower Administration Office.

Military officials gave Han a grade-4 due to his full body tattoo and he was enlisted as a social service worker instead. However, the officials, who found his tattoos suspicious, contacted police for further investigation on Mr. Han's case.

During the investigation, Mr. Han confessed to hearing about people receiving military exemptions from full body tattoos.

Judge Yoon stated, "It appears Mr. Han did not initially have intentions to avoid the military service by getting tattoos. He started getting tattoos during junior high school and decided to get additional work done before his physical examination. Upon receiving a grade-4, he was stationed as a social service worker, which was taken into consideration when determining his sentence."

According to the MMA, 35 out of 165 cases involving military exemption attempts from April 2012 to May 2017 regarded tattoos.

HRW protests Brazilian Senate proposal

Human Rights Watch has issued a statement objecting to a Brazilian proposal that would prevent civilian courts from trying homicide cases where the defendant is a member of the armed forces and the victim is a civilian:

Brazil’s Senate is being asked to consider a bill that would shield members of the Armed Forces accused of unlawful killings of civilians from prosecution in civilian courts. The Senate should reject the bill because it increases the risk of impunity rather than justice in these cases. 

“The leadership of Brazil’s Armed Forces wants to bring back a practice that was used during the time of the dictatorship,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “Under the proposal, the military would sit in judgment of itself in cases that constitute serious violations of human rights, a recipe for impunity.” 

At the end of July 2017, Brazil’s government ordered the deployment of thousands of members of the Armed Forces in Rio de Janeiro in response to an increase in violence. The soldiers will remain in the city until the end of 2018, said the commander of the Army, General Eduardo Villas Boas. 

Members of the Armed Forces are patrolling the streets of Rio and conducting raids alongside state military police and civil police officers. If the bill is passed, soldiers charged with unlawful killings or attempted killings of civilians during those operations will be tried in military courts, while other law enforcement personnel will continue to face civilian courts. Civilian courts should continue to have jurisdiction over all unlawful killings cases irrespective of the alleged killer, Human Rights Watch said. 

In the military justice system, the courts of first instance are staffed by four military officers and a civilian judge, all with an equal vote. The appeals court (the Superior Military Tribunal, SMT) is made up of 15 military officers and only 5 civilians. Its decisions can be appealed to the Supreme Federal Court, a civilian court. 

The Military Criminal Code, approved in 1969 during Brazil’s military dictatorship (1964-1985), provided that unlawful killings of civilians should be tried before military courts, but it was amended in 1996 to move trials for such crimes to civilian courts. Adoption of the bill would reverse a very important step in leaving behind Brazil’s authoritarian past and strengthening the rule of law, Human Rights Watch said. 

Under international norms, extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.” 

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights before military jurisdictions given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.” 

The United Nations Human Rights Committee, which monitors implementation of governments’ obligations under the International Covenant on Civil and Political Rights, has called on states parties to ensure that military personnel alleged to have committed human rights violations are subject to civilian jurisdiction. According to the committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.” 

Villas Boas has called for the Senate to approve the bill, contending that soldiers deployed in Rio de Janeiro need “legal protection.” In a note to the media, the army also said that subjecting soldiers to the jurisdiction of civilian courts “can hinder prompt reaction” during security operations. 

“Brazil´s civilian legal framework provides full due process guarantees to any soldier accused of an unlawful killing, just like to any other citizen,” Canineu said. “What the Armed Forces really want is to stack the deck against victims of serious human rights violations getting justice.”

UK civil control and oversight of military produce beneficial results for military families

The BBC News reports on the results of an Inquest conducted into the death of Private Phillip Hewett who was killed by a roadside bomb while travelling in a lightly armoured "snatch" Land Rover in Iraq.  He was the 37th soldier to be killed in the such vehicles in Iraq and Afghanistan which became know as "mobile coffins." Following an Inquest, she sued the Ministry of Defence under the Human Rights Act.   But the UK military continued to contest her case until an Inquiry into the Iraq war conducted by Sir John Chilcot revealed that the Ministry of Defence had known about the vehicle's vulnerability and for years had failed to provide more heavily armoured vehicles.

We have found that the Ministry of Defence was slow in responding to the threat from Improvised Explosive Devices and that delays in providing adequate medium weight protected patrol vehicles should not have been tolerated. It was not clear which person or department within the Ministry of Defence was responsible for identifying and articulating such capability gaps. But it should have been.

The UK government accepted the findings of Sir Chilcot in relation to the Snatch Land Rover which were published on July 6, 2016 and resulted in a settlement of the case and an apology from the Defence Secretary to the late Phillip Hewett's mother by Sir Michael Fallon for failures that "could have saved lives."

End of the line for the Gaynor case

The High Court of Australia today denied Bernard Gaynor's application for leave to appeal in Gaynor v. Chief of Defence Force, with costs. Background here; excerpt from the latest news:

During a complex hearing at the High Court in Brisbane on Friday, Justices Anthony Keane and James Edelman were told the appeal against the Chief of Defence Force's decision hinged, in part, on military regulations about the suitability of officers to serve. 

Those included following orders and official ADF policy, which prohibits its members making political statements. 

Mr Gaynor had argued he wasn't in uniform, on base or assignment when he made the comments and as a reservist had a different status to a regular officer. 

The High Court Justices, however, said that sufficient grounds to establish special leave to appeal the federal court ruling had not been made out and dismissed the appeal.

Are the padres' lips sealed?

CBC News reports on a controversy involving the duty of Canadian military chaplains to report crimes under some circumstances. Excerpt:

The Canadian military's marching orders for chaplains who counsel perpetrators or victims of sexual misconduct is [sic] causing a crisis of conscience for some clergy, federal documents reveal. 

A series of morale and welfare reports obtained by CBC News under Access to Information legislation show the issue of pastors being compelled to testify in court has become a matter of increasing unease among military clergy. 

"There is concern by chaplains that they are potentially breaching the confidentiality of those receiving spiritual care," said a March 2015 summary prepared by the military chaplain general's office. Moreover, the report said, "the existing framework for legal assistance to chaplains does not provide legal advice for them." 

Pastors on bases along the West Coast seemed the most concerned about the ethical dilemma, and at one point they consulted with the regional prosecutor's office to review legal issues related to chaplain confidentiality in courts martial. 

Directive from the top 

But as far as the military's top spiritual adviser is concerned, the issue is clear-cut.
Brig.-Gen. Guy Chapdelaine has issued a directive that says, with the exception of confessions heard under the sanctity of Roman Catholic reconciliation, pastors are required to disclose what they have been told if a crime has been committed. 

"In certain circumstances, there is a duty to report what has been revealed in a counselling situation," said the Oct. 23, 2015, directive, recently obtained by CBC News through Access to Information. 

The directive states: "With the exception of an exchange of sacrament reconciliation with a Roman Catholic priest, confidentiality in pastoral care and counselling is not applicable" when the person is a danger to themselves or others, when the incident involves child abuse or when a court orders a pastor to testify. 

Further, "all notes and documentation, including all emails concerning the case," may be turned over to the court for "consideration" during the trial. 

The chaplains could be called upon to testify, but "will share all information with investigators only with the written consent of the victim." 

They should also "encourage, and where appropriate enable" the victim to report incidents.

A culture of presumed guilt?

The culture within the military has become one of presumed guilt for the accused. Military attorneys wield tremendous power over service members accused of misconduct. Army trial counselors have the power to pull decision authority from commanders who ask tough questions before passing judgment. Many commanders are hesitant to challenge trial counselor recommendations.

U.S. Army officer Chase Spears

 Letter to the Editor, Washington Post

A bit of good news in Venezuela

We learn from this report that Venezuela's new National Constituent Assembly -- the superlegislature composed entirely of loyalists of President Nicolás Maduro -- has directed that the hundreds of civilian protesters who had been charged before military courts will be tried in the regular courts. The step was proposed by Sr. Maduro.

New Zealand introduces a bill to update the military justice system

Scoop Parliament tells us that:

A bill that will update and better align the military justice system with the New Zealand criminal justice system was introduced to Parliament yesterday.

The Military Justice Legislation Amendment Bill will amend the Armed Forces Discipline Act 1971, the Court Martial Act 2007 and the Court Martial Appeals Act 1953.

“This Bill introduces a number of significant improvements to the military justice system,” says Defence Minister Mark Mitchell.

Judicial independence in Suriname

Diego García-Sayán
UN Special Rapporteur
on the Independence of
Judges and Lawyers

The Office of the High Commissioner for Human Rights today issued the following press release:

The independence of the judiciary in Suriname must be guaranteed by the State, the United Nations human rights expert on the independence of judges and lawyers has said, amid concerns over a long-running murder case in which the country’s president stands accused. 

Special Rapporteur Diego García-Sayán condemned the threats to judicial independence and the repeated delays which have dogged the case against President Desiré Delano Bouterse. 

President Bouterse is among the defendants standing trial for allegedly murdering 15 political opponents in 1982 in a case known as the “December murders”. 

“I am concerned that there have been repeated attempts to interfere with or delay the trial,” said Mr. García-Sayán, whose specialised mandate deals with judicial independence. 

The trial process began in 2007 – 25 years after the murders – with President Bouterse among the 25 defendants.  

But in 2012 the country’s parliament granted amnesty to all the accused after changing the law in order to do so. 

“It is the State’s duty to respect and observe the independence of the judiciary, by allowing judges to decide cases impartially, without any improper influence, pressure, threats or interference, by either the executive or the legislative branch.” 

He added: “The independence of the judiciary, as enshrined in the Constitution of Suriname, as well as in several international human rights instruments, must be guaranteed by the State, particularly when dealing with serious human rights violations.” 

The Military Court in charge of the trial later found the Amnesty law unconstitutional and ordered the proceedings to start again. 

Mr. García-Sayán praised this decision, highlighting that amnesty measures could not be applied under international law unless States had met their obligations to investigate crimes and punish those responsible. 

“A failure to investigate and bring to justice perpetrators of human rights violations would be in breach of international law instruments,” the Special Rapporteur said. 

“The absence of a fair and expeditious trial of the 1982 murders would also endanger the victims and their families’ right to truth, as well as the general fight against impunity in the region and globally,” he added. 

President Bouterse has previously labelled the trial as a threat to national security. 

 *   *   *

Mr. Diego García-Sayán (Peru) has been Special Rapporteur on the independence of judges and lawyers since December 2016. As Special Rapporteur, Mr. García-Sayán is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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Rule of law v. negotiated justice in Somalia

The facts in the case are essentially these. A Somali soldier shoots a government minister to death. He is tried in military court and sentenced to death. The judgment is upheld on review. All that is needed is the signature of the country's president. But now it seems that the accused's clan hopes to reach an understanding with the victim's clan, presumably letting him off the hook. Details from Somali Update here. Excerpt:

CLAN INFLUENCE 

The military court official admitted that since when the killer soldier was put on trial for the death of the late minister, there was increasing pressure from relatives and his Habar Gedir clansmen pushing to his release. 

The family of the late minister, which comes from Huber sub-clan of Rahanweyn, publicly opposed the suggestions demanding the release of the soldier in return for compensation to the family of the deceased. 

The case now seems to be a tough test for President [Mohamed Abdullahi Mohamed] Farmajo's administration. 

"The pressure continues to affect us. After the trial the Habar Gedir clan started to pushing for payment of compensation [diya money] in return for the killer's release." the court official added. 

Somali Update has learnt that politicians and Members of the Parliament from Habar Gedir met President Farmajo two weeks ago in an attempt to spare their man from the execution alleging that "the shooting was not deliberate". 

According to a source at the meeting, the Habar Gedir members urged the president to allow their representatives to negotiate with the Huber clan members to reach mutual settlement into the death of the minister. 

This was backed by recent demonstration staged by the members of Habar Gedir in Mogadishu. 

But how ever, the military court official says the ball is to the court of Villa Somalia.
"If the president signs today, tomorrow we shall carry the execution." he told Somali Update.

Rule of Law, anyone? Doesn't the public have an interest here?

Follow-up on the news

In 2015, Global Military Justice Reform reported on a case in the Federal Court of Australia concerning whether a reservist could be discharged for homophobic comments he made online. The Defence Force appealed and prevailed before a three-judge panel of court earlier this year in Chief of Defence Force v. Gaynor [2017] FCAFC 41. The case is discussed here and here. The reservist, ex-Major Bernard Gaynor, has applied for leave to appeal to the High Court. The High Court's website does not indicate any action on the application.

Who should try this case?

A U.S. naval officer is suspected of having murdered his civilian wife by defenestrating her in Mons, Belgium. Should the U.S. exercise primary jurisdiction under the NATO Status of Forces Agreement, or should Belgium try the case? This article by Carl Prine in the San Diego Union-Tribune gives details. Unlike forum choices in the United States as between military and civilian forums, there are substantial, basic differences between Belgian criminal procedure and U.S. military procedure. According to the suspect's Belgian attorney:

Belgian courts lack a speedy trial and there's no right to a trial by jury. Defendants can't confront or cross-examine witnesses or contest hearsay testimony. The judge has requested that witnesses be hypnotized to try to recover memories.

More hazing allegations, this time involving the British Army Foundation College

The headline for this Daily Mail article is definitely eye-catching:

Cadet scandal as SEVENTEEN Army instructors are charged with attacks on recruits - but they deny claims they pushed teenagers' heads under water and forced excrement into their mouths

Stand clear . . .

Still more misuse of military courts in Lebanon

Six civilians have been arrested by order of a military investigating judge in a corruption and bribery case involving the Lebanese Army Military Academy, according to this article from The Daily Star. Despite occasional reports of possible reforms, Lebanon seems unable to kick the habit of using military courts to prosecute civilians, contrary to human rights norms, which strongly disfavor the practice.

Public trial and notice of Court Martial proceedings

If notice is not given that a trial is to be conducted, is the right to a public trial infringed? So it seems. According to this Darlington & Stockton Times report:

THE GOVERNMENT has introduced new arrangements to ensure military court proceedings are not taking place in private, after the issue was raised by The Northern Echo. 

Army chiefs have now changed their procedures to ensure the public and the media are properly informed about court martials, after Richmond MP Rishi Sunak raised the issue with Defence Minister Mark Lancaster. 

It follows an instance at Catterick Garrison earlier this year when two cases of manslaughter against soldiers who had served in Afghanistan was not heard in public, because the Ministry of Defence (MoD) had not given sufficient advance notice to enable the general public and media to attend. 

A journalist working for The Northern Echo and its sister paper Darlington & Stockton Times contacted Mr Sunak about the issue. 

As a result he wrote to the minister pointing out that the Ministry of Defence had breached its own guidelines about advance notice of military hearings, which must adhere to the principals of open justice by being heard in public. 

In a letter to Mr Sunak, Defence Minister Mark Lancaster said changes had been made to ensure that public holidays do not interfere with the standard procedure for publicising cases at least one day in advance.

Why was this Russian case tried in a military court?

An imam has been convicted by a Russian military court on the basis of a sermon he gave, according to this Eurasianet report. Excerpt:

Magomednabi Magomedov, a Salafist imam, received a five-year prison term from a military court for giving an allegedly unlawful sermon in 2016 in Dagestan. To help with the prosecution, authorities turned to an expert in content analysis, a method of examining texts and speeches for patterns of explicit or implicit meanings. The expert’s findings played a key role in convicting the imam on a charge of attempting to incite terrorism. 

The problem was that Magomedov’s sermon did not advocate terrorism, but rather stressed the duty of Muslims to peacefully resist the closure of Salafist mosques and other encroachments on religious freedom in Russia. Magomedov’s trial thus highlights the hazards of trying to quantify criminal intent. 

Magomedov was the imam at the Vostochnaya Mosque in the Dagestani city of Khasavyurt. His outspokenness earned him powerful enemies in the local administration, and he was sentenced in the fall of last year. In early 2017, Russia’s Supreme Court upheld his conviction, but reduced his sentence by six months.

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

New magistrates and new law in Cameroon

Cameroon has added 14 new military magistrates, according to this report. The good news is that the decision to prosecute is now made by prosecutors, who no longer need to wait for ministerial approval. The bad news is that the military court's jurisdiction extends beyond members of the armed forces and gendarmerie to include some offenses by civilians.

Resumption proposed for Ukrainian military court

We learn here from Ukrinform:

Colonel of Justice of the Directorate of Legal Assistance of the General Staff of the Armed Forces of Ukraine Yuriy Bobrov said this today at a briefing in the Defense Ministry, an Ukrinform correspondent reports. 

"The activity of the Military Court in Ukraine was suspended in 2010. This situation should be changed, as the activity of military courts is effectively carried out in more than 40 countries of the world, including in 12 European countries. Each fifth state, which has its own army, has military courts," Bobrov emphasized. 

He clarifies that there is no need to amend the Constitution of Ukraine for the Military Court in Ukraine to resume its work again. It is enough to amend only the Law of Ukraine "On Judicial System and Status of Judges". 

He expressed hope that this bill would be approved by the Verkhovna Rada.

Earlier reporting can be found here. The Kyiv Post has further information, including this:

The instances of biased investigations into criminal cases against servicemen and their subsequent hearing by courts located in the area of the special operation in the east of Ukraine can serve as an argument in favor of reinstating military courts, [Col. Bobrov] said. 

“Cases against servicemen charged with offences committed in a military conflict zone should be heard above all by a competent court observing the rule of law principle, that is, to be impartial and unbiased. And tell me, can a general jurisdiction court – a district or a city court – which is to some extent under the enemy’s information influence impartially hear a case in relation to a serviceman? I am convinced it cannot,” Bobrov said.

The return of the rubber chicken case

HMAS Newcastle

At last, the long-running Royal Australian Navy rubber-chicken hazing case seems to have quacked its last. According to this report, it ended with a whimper. All that was left, in the case of Able Seaman Marine Technician Rohan Martin Angre, was a charge of assault for having poured soy and fish sauce over the head of a shipmate aboard HMAS Newcastle in 2011. "He was convicted of that offence without punishment on the condition he enter a good behaviour bond for 12 months."

Fallout of "Marines United" scandal

Corey Dickstein of Stars and Stripes has written this informative interim report on the disciplinary and administrative actions the U.S. Marine Corps has taken in light of the "Marines United" nude photo-sharing scandal. Two officers have been relieved of command and 33 other Marines have been penalized:

In addition to the two fired commanders, two Marines have been involuntarily separated from service, another has been jailed and 30 others have faced some form of reprimand for actions related to the scandal, said Marine Maj. Iain Pedden, leader of the Marine Corps’ military justice branch. 

The Naval Criminal Investigative Service has identified 78 active-duty and reservist Marines as persons of interest in a range of activities related to the Marines United scandal, Pedden said Tuesday. To date, 45 cases have been adjudicated, 30 have been sent to commanders for disposition and three others are continuing to be investigated by NCIS.