Life imprisonment for 29 members of the military in ESMA trial in Argentina

On Wednesday, November 29, 2017, an Argentine court sentenced former Navy Captain Alfredo Astiz, known as the "Angel of Death" to life imprisonment for crimes against humanity committed in the principal clandestine center of detention and torture known as the Higher Navy Mechanics School (ESMA) of the former military dictatorship where approximately 5,000 people are estimated to have been killed during the period 1976-1978.

This was the longest trial in Argentina's history. It lasted 5 years during which 54 defendants were tried for crimes committed against 789 victims who passed through ESMA. Two former military pilots were among the 29 defendants who received life sentences for their part in the "death flights" in which victims were hurled to death from airplanes into the freezing waters of the South Atlantic in an attempt to hide the murders.

The victims included left-wing opponents of the regime and members of urban guerrilla groups and also human rights activists and relatives who people who had already been "disappeared" by the military. Naval intelligence operatives infiltrated activist groups who were drawing attention of international media to the human rights abuses in Argentina. Two French nuns and 11 others were thrown from a plane on the night of December 14, 1977. One of the others was Esther Careaga, who was a close friend of Jorge Bergoglio, who became Pope Francis, who testified at the trial in 2010. Bergoglio meet Careaga when he worked as an apprentice at a pharmaceutical laboratory in Buenos Aires in the early 1950s. Careaga was a biochemist and Bergoglio's boss and was seized after denouncing the disappearance of her pregnant 16 year old daughter. Careaga's body, along with that of one of the nuns and two other mothers washed ashore and were buried in a common grave. Their remains were only identified via DNA testing in 2003.

What about the 1994 Ansar mutineers who were acquitted but sacked?

Overshadowed by the Bangladesh High Court's decision in the Bangladesh Rifles mutiny case, the court has also ordered the government to reinstate 1447 former members of the Bangladesh Ansar paramilitary force who were sacked in 1994 even though they had been acquitted of complicity in a different mutiny.

Due process and the Bangladesh Rifles mutiny trials

Human Rights Watch has issued a statement condemning procedural flaws in the Bangladesh Rifles mutiny case. Excerpt from this Star Online report:

The Bangladesh government should agree to new trials that meet international standards for members of the former Bangladesh Rifles (BDR) accused of mutiny and murder, including 139 whose death sentences were upheld on November 27 by the High Court, Human Rights Watch said today.

The court also upheld life sentences for another 146 people.

“Families of those killed and injured in the mutiny need justice and closure, but the answer is not through flawed trials,” said Brad Adams, Asia director at Human Rights Watch.

“True justice comes only through sound procedures that comply with the rule of law, and the families of the victims deserve better answers than this mass roundup,” he added.

* * *

A number of women relatives of the officers were sexually assaulted. Human Rights Watch research has found that many of the accused were tortured in custody and most were denied access to proper representation.

“We have long said that the atrocities that took place during the mutiny need to be investigated and prosecuted, but this should not be done through unfair mass trials after the use of torture,” said Brad Adams, Asia director at Human Rights Watch. “Particularly when the death penalty is involved, expediency cannot take priority over justice.”

* * *

In July 2012, Human Rights Watch released a report, “‘The Fear Never Leaves Me’: Torture, Custodial Deaths, and Unfair Trials after the 2009 Mutiny of the Bangladesh Rifles,” which provided a detailed account of the mutiny and the authorities’ response.

Human Rights Watch documented serious abuses by the authorities in the aftermath, including at least 47 custodial deaths and widespread torture of BDR members by the Rapid Action Battalion (RAB) and other security forces. The government has claimed that all deaths in custody were due to natural causes.

Human Rights Watch documented how the mass trials of hundreds of the accused left most without adequate counsel, adequate time to prepare a defense, or notice of the charges or evidence against them.

Crucially, many made confessions under torture, according to HRW.

The chief prosecutor claimed that no confession obtained under duress would be used in court, but legal teams eventually assigned to some of the cases showed Human Rights Watch documentation demonstrating that coerced confessions had been used as evidence, the report said.

The Bangladeshi authorities should establish an independent investigative and prosecutorial task force with sufficient expertise, authority, and resources to rigorously investigate allegations of human rights abuses after the mutiny. All those subject to unfair trials should be given a new trial, Human Rights Watch said.

Skywriting

The Aviationist -- a blog not previously cited on Global Military Justice Reform -- has an edgy post by Tom Demerly under the headline A Serious Look at the History of Inappropriate Contrails Made by Pilots. The recent NAS Whidbey Island skywriting hijinks doesn't sound like another Tailhook, but the author provides some background and food for thought. What disciplinary action has been or will be taken?

Death of Judge Jacob Hagopian, 90

Hon. Jacob Hagopian

Judge Jacob Hagopian, a U.S. Magistrate Judge in Rhode Island and a retired judge of the U.S. Army Court of Military Review (now the U.S. Army Court of Criminal Appeals), died this month at age 90. Col. Hagopian's obituary in the Providence Journal can be found here.

What we have here is failure to communicate

Richard A. Oppel Jr. of The New York Times reports on the Air Force's failure to report many incidents to the national gun database. Excerpt:

A review by the United States Air Force has found several dozen cases in which the military failed to report service members charged with or convicted of serious crimes to the federal gun background-check database, Air Force officials said on Tuesday. 

The review came after the Air Force disclosed that it had failed to report the domestic violence conviction of Devin P. Kelley, the gunman who opened fire at a church in Texas earlier this month. Under federal law, Mr. Kelley’s court-martial conviction for domestic assault should have prevented him from purchasing at a gun store the rifle he used in the attack, as well as other guns he acquired over the past four years.

Equal Justice for Our Military Act of 2017

Rep. Susan Davis (D-CA) continues to press for equal access to the Supreme Court for court-martial defendants. Here is a link to the 2017 version of her proposed Equal Justice for Our Military Act of 2017, H.R. 2783.

She's right.

Part I of the Report of the Military Justice Review Group (2015) discussed the current limit on access to the Supreme Court at pp. 627-29. It usefully observes (at 628): "Since enactment of the Military Justice Act of 1983, the number of petitions for certiorari filed in the Supreme Court seeking review of courts-martial has turned out to be lower than expected. Even in those cases eligible for Supreme Court review, petitions to the Supreme Court have been filed in only a fraction of the cases." (Footnote omitted.)

Government appeals possible in BDR mutiny case

The Dhaka Tribune reports that the authorities are considering appealing an acquittal and one sentence to the Appellate Division of the Supreme Court in the Bangladesh Rifles mutiny case. Excerpt:

The High Court has acquitted the former ward-level leader of Dhaka City Awami League, Torab Ali, of conspiracy charges and commuted the death sentence of Zakir Hossain to life imprisonment over the Bangladesh Rifles (BDR) revolt in 2009. 

Torab and former BNP lawmaker Nasiruddin Ahmed Pintu were among those handed life terms in the Pilkhana carnage trial, although Pintu died of cardiac arrest in prison in 2015. 

Zakir Hossain is the son of former BDR member, Nayek Subedar Kanchan Ali. 

The reasons behind Torab’s acquittal and commuting of Zakir’s punishment could not be known as the full text of the High Court’s verdict is yet to be published. 

Deputy Attorney General KM Zahid Sarwar Kazal told the media that they were thinking of moving the Appellate Division of the Supreme Court against the Torab’s acquittal and Zakir’s life-term.

Not military justice, but . . .

Artworks created by Guantánamo detainees "will no longer leave prison confines and can now legally be destroyed. Attorneys for several prisoners were told the military intends to burn the art," according to this op-ed by Prof. Erin Thompson of the John Jay College of Criminal Justice in The New York Times. Excerpt:

Art censorship and destruction are tactics fit for terrorist regimes, not for the U.S. military. The art poses no security threat: It is screened by experts who study the material for secret messages before it leaves the camp, and no art by current prisoners can be sold. Guantánamo detainees deserve basic human rights as they await trial. Taking away ownership of their art is both incredibly petty and utterly cruel.

Even if the Supreme Court were one day to hold that the Fifth Amendment applies to Guantánamo detainees (an issue Joshua Geltzer explored here in 2012), does the new policy, reported first here by the Miami Herald's Carol Rosenberg, violate the Takings Clause? Probably not. See Ward v. Ryan (9th Cir. 2017).

Why is this case in a Thai military court?

A civilian woman suspected of involvement in a notorious bombing has been held by order of a Thai military court. Details here.

Human rights norms strongly disfavor the trial of civilians by military courts.

Hazing, or just weird?

The Telegraph has a report on some weird and degrading conduct alleged to have been engaged in by Royal Marines. Excerpt:

Cpl Philip Beer and Cpl Danny Foster oversaw a nightly gathering of their 43 Commando troop called “family time”, during which they punished “professional failings”.

Punishments included being hung upside down and whipped, being shaved naked and being forced to commit sex acts to gay pornography.

Portsmouth Military Court, heard the method of deciding punishment was based on the Noel Edmonds' television game show, with members of the troop forced to pick box numbers, with each containing a punishment.

It is hard not to read about this without shaking your head.

By the numbers

Here's an interesting statistic, thanks to the analytical tools provided by Global Military Justice Reform's "blogger" platform: the number of posts has declined significantly since last year:

2014 (11+ months), 1154
2015, 1098
2016, 947
2017 (11 months), 712

What to make of this? Possible explanations are that there is less going on around that world that comes within our area of interest, or that the editor and contributors are not picking up on newsworthy developments, have had other obligations, or are exercising greater discretion in the selection of topics ("sometimes less is more"). Who knows, but readers and contributors may find the data of interest.

Armed forces and human rights

Wing Cdr (Ret) U C Jha, IAF

Are armed forces outside the preserve of human rights?, asks Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha in this Daily News & Analysis essay. His bottom line:

The Armed Forces cannot stay cocooned since the personnel they recruit belong to and interact with the wider society, which has undergone significant change. The government must ensure that the members of the Armed Forces enjoy the basic human rights and fundamental freedoms in the context of their service. A soldier whose human rights are protected by the State is likely to be more disciplined and operationally effective, and also less likely to violate the human rights of others.

Military justice and leaks

Vox is continuing to report on the allegations regarding the death of a Special Forces soldier in Mali. Quite a few details have been leaked; some of the leaked information may be true, some may not be. Members of SEAL Team 6 and everyone else who is being investigated are entitled to a presumption of innocence. That constitutional principle at times is in tension with the public's right to be informed about government activities. Where should the line be drawn? Have leaks become business-as-usual in ways that threaten the administration of justice?

Editorial support for Gillibrand Bill

The Rochester Democrat & Chronicle editorial board has come out in favor of the proposed Military Justice Improvement Act. Excerpt:

There are no acceptable excuses for allowing the system to remain the same. The Military Justice Improvement Act would give independent, trained military prosecutors authority over serious alleged crimes. Right now, military officers within the alleged victim’s chain of command decide whether to prosecute the accused. That discourages victims from reporting sexual assault, particularly when the attacker is one of the victim’s supervisors. The absurdity of this would be laughable if it was not such a serious matter.

There is some bipartisan support for the bill. It should be unanimous.

Verdict in the BDR mutiny case

Star Online reports just now that the judges of the Bangladesh High Court have completed their reading of the judgment in the 2009 Bangladesh Rifles mutiny case. Bottom line:

The High Court today confirmed death for 139 out of 152 convicts who were given capital punishment by lower court in BDR carnage case.

Among rest of the convicts, the court commuted death of eight to life-term imprisonment and acquitted four others. Another death row convict died earlier.

An appeal lies to the Supreme Court's Appellate Division.

In addition to the civilian criminal proceedings, numerous BDR personnel were prosecuted for lesser offenses in mass service-court trials in which the maximum punishment was confinement for seven years. This Human Rights Watch report provides the background.

Reading of judgment continues in Bangladesh Rifles mutiny case

A 3-judge bench of the Supreme Court of Bangladesh's High Court Division is continuing its in-court reading of the judgment in the 2009 Bangladesh Rifles mutiny case. Excerpt from BDNews24's report:

In his observations, Justice [Md Nazrul Islam] Talukder came up with several recommendations, including an investigation into the intelligence failure of information on a brewing mutiny. 

His other observations are: 

• Law-enforcement agencies should not get involved in commercial activities, like the BDR’s ‘Dal-Bhaat Karmashuchi’, which allowed the paramilitary force to engage in open market sales of commodities
• Senior officers should maintain a professional relation with subordinates in line with BGB laws. The judge advised regular discussion within the force in that regard
• Prior to the Peelkhana mutiny, senior officers had been informed of their subordinates’ demands, but a decision was pending. Such red tape must be eliminated
• Addressing grievances should be the priority
• Clearing any back pay as soon as possible
• The BDR had its own intelligence wing, which failed to provide input before the mutiny. An investigation should be opened

The judges indicated on Sunday that they had reached a unanimous verdict on the appeal but that each member had separate views. According to this Star Online report,

Judges of the High Court have completed delivering their observations prior to delivering the verdict of death references and appeals in the sensational case of 2009 BDR carnage.

Justice Nazrul Islam Talukder completed giving his observation in the case and left the presiding bench Justice Md Abu Zafor Siddique to deliver the final verdict, to be given around 2:30 p.m.

1000-page BDR mutiny ruling: "be a little bit patient"

Here is an excerpt from a further report on Sunday's High Court proceedings in the Bangladesh Rifles [BDR] mutiny case:

Justice Shawakat Hossain also urged all to have patience by describing the importance of the case with regard to the ‘unprecedented’ incident after starting to read out the ‘historic’ verdict.

He noted that the bench heard the case for 370 working days.

“Not only are the 850 convicts waiting to hear the verdict, but many others in the country want to know it. Many will spend a sleepless night for the verdict. We have the responsibilities.”

He said the court was trying to deliver a ‘good’ verdict on this ‘significant’ case.

“So you must be a little bit patient. Our observations may differ, but the destination is the same.

“We’ve reached a consensus on the order part of the verdict. Our blood pressure also shot up in delivering the verdict,” he added.

Justice [Md Abu Zafor] Siddique mentioned similar killings of army officers in other countries, noting that 55 Bangladeshi officers lost their lives in the nine months of the war against Pakistan in 1971.

“The Peelkhana massacre surpassed that (tragedy),” he said.

He said the highest number of army officers, 100, was killed in Indonesia by mutineers in 1967.

The judge emphasised ‘legal, logical, and necessary’ discussions and observations in the case of this ‘brutal and barbaric’ incident.

“This is a groundbreaking verdict considering the arguments, explanation of the existing and statutory laws, the sovereignty of the republic, security of people’s lives and belongings, and for upholding the rule of law in a democratic regime and the establishment of justice,” he said.

Reading of the judgment resumes on Monday. 

Damages as part of a court-martial sentence

Chief Judge Kevin Riordan
Court Martial of New Zealand

New Zealand's chief military judge has ordered an accused to pay the victim a sum of money as part of the sentence. According to this Radio New Zealand report:

A soldier who threatened to share nude photos of a woman unless she introduced him to her parents has been dismissed from the army at his court martial. 

As well as being dismissed, 24-year-old Thomas Evans was today given a serious reprimand and ordered to pay his victim $1000. 

Chief Judge Kevin Riordan said Evans' offending was abusive and callous. He said Evans wanted to control the woman, and to make her feel threatened and scared.

Tech and military justice: Gambia's WhatsApp trial

A new chapter has begun in the continuing saga of the disciplinary implications of social media. Gambia has a high-profile court-martial going in which the accused are alleged to have conspired via a WhatsApp chat group. Sparse details here.

Verdict being announced in 2009 Bangladesh mutiny case

A panel of three High Court judges led by Justice Md Shawkat Hossain is in the process of reading aloud the 1000-page judgment in the 2009 Bangladesh Rifles (BDR) mutiny. Details can be found here. Excerpt:

The larger bench with Justice Md Abu Zafor Siddique and Justice Md Nazrul Islam Talukder as the two other members was formed in 2015 to hear the case, largest in Bangladesh's history in terms of the number of convicts.

The mutiny that continued for two days eight years ago, a month after a new government took office, sent shock waves across Bangladesh and to the rest of the world.

In November 2013, a special court of an additional metropolitan sessions judge awarded the death penalty to 152 jawans and non-commissioned officers of the erstwhile Bangladesh Rifles or BDR for the massacre.

The court sentenced 161 others to life in prison and 256 to three to 10 years in jail. It acquitted 277. 

Never before had so many accused, 850 in total, been tried in a single case in the history of Bangladesh.

In 2011 the paramilitary BDR were renamed the Border Guards Bangladesh. 

A century since the Houston riot courts-martial

One hundred years ago this month the Houston riot mutiny courts-martial began. As this BBC article by James Jeffrey explains, 19 African-American soldiers were executed. The proceedings led to general orders requiring review of death sentences by the Judge Advocate General and creation of the Army Board of Review. Statutory changes followed in 1920.

Many documents related to the trials are available here thanks to the South Texas College of Law's Fred Parks Law Library.

Further attention to military justice in the House of Lords

Lord Thomas of Gresford OBE QC

The House of Lords returned to the subject to military justice today, with attention focusing on the Armed Forces Act 2006 s.42. The colloquy among several Members can be found here. Lord Thomas of Gresford OBE QC observed:

My Lords, in March 1669 the Lord High Admiral, the Duke of York, later James II, issued a warrant to constitute a court martial. It was to be comprised of a rear admiral and six captains to enquire into the loss by fire of a ship of the line, the “Defiance”. In order to constitute the court, Samuel Pepys, then a civil servant with the title of the Clerk of the Acts, found himself suddenly and unexpectedly elevated to military rank. He wrote in his diary:

“But that which put me in good humour, both at noon and night, is the fancy that I am this day made a Captain of one of the King’s ships, Mr. Wren having this day sent me the Duke of York’s commission to be Captain of ‘The Jerzy,’ in order to my being of a Court-martiall for examining the loss of ‘The Defyance,’ … which do give me occasion of much mirth, and may be of some use to me, at least I shall get a little money by it for the time I have it; it being designed that I must really be a Captain to be able to sit in this Court”.

Samuel Pepys FRS

At the hearing, Mr Pepys managed the business, and as he put it,

“did lay the law open to them, and rattle the Master-Attendants out of their wits almost; and made the trial last till seven at night, not eating a bit all the day”.

However, he did forbear from giving judgment, lest, as he put it,

“evil use might be hereafter made of the precedent by putting the Duke of Buckingham, or any of these rude fellows that now are uppermost, to make packed Courts, by Captains made on purpose to serve their turns”.

Pepys instead left the proceedings to eat a ship-board meal of,

“salt beef … brown bread and brandy … so good as I never would desire to eat better meat while I live, only I would have cleaner dishes”.

I am grateful to my friend and colleague, Professor Eugene Fidell, of Yale University, author of the excellent book Military Justice: A Very Short Introduction, who drew these passages to my attention.

In the 1840s, a parliamentary Motion was brought criticising the Earl of Cardigan, of Light Brigade fame, who was colonel of the 11th Hussars. There were 350 men in the regiment, and in the space of two years he had conducted 107 courts martial, with 90 of his soldiers imprisoned in Lewes jail. But that was not his offence; his mortal sin was to have a soldier flogged on a Sunday at a church parade, which was what the Motion was about. Flogging was abolished by Sir George Osborne Morgan, the Liberal Member of Parliament for Wrexham—which has already had a mention and is of course my home town—who was the Judge Advocate in 1881.

I remember during my bus-conducting days in Wrexham that the bus driver I was working with was proud of the fact that he had survived field punishment number one while serving in the First World War—that is to say he was lashed, spreadeagled to the wheel of a gun carriage. Sixty thousand such sentences were imposed during that time, and at the same time 3,000 death sentences were pronounced by courts martial, of which about 10% were carried out. Their posthumous pardon is still a controversial issue.

I mention these historical occurrences because they have a left a degree of mistrust of courts martial in the public consciousness, which has not disappeared. Back in 1995, I defended a soldier before a court martial in Germany on a charge of murder. He was acquitted. Mr George Galloway MP, speaking in the House of Commons, complained of the bungling and incompetence of the investigation and prosecution, and continued:

“As a result of that bungling and incompetence”,

X—he named the defendant—

“who killed my constituent, has literally got away with murder and is currently at large in a military establishment in Telford, Shropshire. Does the Leader of the House understand that British military justice and law is increasingly seen as an ass”?—[Official Report, Commons, 2/3/95; col. 1209.]

I have never heard comments like that in Parliament about an acquittal by a jury.

The parents of the deceased girl in the case of X actually picketed the next court martial I appeared in in Germany, holding placards protesting against the system. That was the case of Martin, which ended up in the Judicial Committee of the House of Lords and, finally, in the European Court of Human Rights. The 17 year-old son of a soldier—not a soldier himself—serving in Germany was charged with the murder of a British civilian who had the status of an officer in the camp. He was held on remand at Colchester for eight months and then flown back to Germany for a court martial with all the trimmings. By that time his father had retired from the Army and was no longer serving. He was convicted. My appeal on the basis of abuse of process was lost in the House of Lords. The European Court of Human Rights, on the other hand, found that there had been a violation of the European convention on other grounds, and cautioned that only in very exceptional circumstances may civilians be court-martialled:

“The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis”.

The Government’s position on that case was criticised and questioned by the Joint Committee on Human Rights in its 12th report in May 2011.

I shall cite two more recent events. One is the Baha Mousa case, in which I appeared for one of the defendant officers, and it was in fact a High Court judge in that particular case. Nevertheless, the acquittals were not acceptable to the Government, who instituted an inquiry that cost millions of pounds. Within the last year there has been the case to which the noble and learned Lord, Lord Morris, referred, the conviction of Sergeant [Alexander] Blackman, which led to a lengthy newspaper campaign, protests and public demonstrations in Old Palace Yard and a rehearing of his appeal on grounds that had never been advanced at his trial. The substitution of his conviction for murder with one of manslaughter led to his immediate release.

What I am endeavouring to show is that there is no public confidence in the system. I know the system and I have every confidence in the judge advocates who sit on courts martial, particularly Judge Advocate [Jeff] Blackett, who has been referred to. They are highly skilled and experienced, and many of them hold certificates to sit on murder trials. However, in the last three Armed Forces Bills over 15 years, I have moved amendments unsuccessfully to improve the workings of the system. Every one of the five points that the noble and learned Lord, Lord Thomas of Cwmgiedd, has put forward is one that I have advanced. I had one success: in 2004 I managed to have the hallowed practice of a petty officer marching the defendant into a naval court martial hearing at the point of a cutlass finally abolished. The presumption of innocence hardly applies when you have the point of a sword in your back.

Specifically, I have called for the repeal of Section 42 and for the extension of universal jurisdiction to sexual crimes so that rape, murder and serious crime could be tried in the ordinary British courts if they are committed abroad. Now, though, with the return of the Army from Germany and the ease of travel that has caused all serious trials from Iraq and Afghanistan to be heard at Colchester or Bulford, the argument of distance is no longer relevant. I have argued that the protocol between the DSP and the DPP is not a satisfactory safeguard where serious charges are laid.

In 2013, the special rapporteur on the independence of judges and lawyers submitted a report to the General Assembly of the United Nations that stated:

“As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to … offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command”.

Paragraph 99 of that report reads:

“States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts”.

That view was re-emphasised in a report to the United Nations on 9 June 2017, and is entirely in accordance with Decaux principle No. 8, which provides that the subject matter of military courts should be limited to offences of a strictly military nature committed by military personnel. The Decaux principles are the United Nations draft principles governing the administration of justice through military tribunals, adopted in 2006.

I therefore fully support the thinking behind the Motion, and thank the noble and learned Lord, Lord Morris, for moving it, and for emphasising a battle in which I have been engaged for a long time. I would advise those considering these matters to follow closely the case of Stillman v the Queen, which is currently before the Supreme Court of Canada. It raises the very issue under discussion. Corporal Stillman, in a private quarrel, shot an individual with his own revolver in the residential area of a military camp but was tried by court martial. The repeal of Section 42 would be wholly in accord with contemporary human rights norms and would remove the strong public prejudice against trial by court martial, starting from before Mr Pepys down to the present day.

“And so to bed”.

95 more cases sent to Pakistan's military courts

The Pakistan Army has prevailed upon the government to send over 95 more cases for trial by military courts. The Express Tribune has the story here.

Pakistan is one of the world's most persistent offenders of the human rights norm that severely disfavors the trial of civilians in military courts.

Thanksgiving

Our Crimes, Their Misdemeanors

General Ratko Mladic, the former top general of the Bosnian Serb Army, was sentenced yesterday in the International Criminal Tribunal for the Former Yugoslavia (ICTY) to life imprisonment for his involvement in war crimes and genocide in Bosnia-Herzegovina in the 1990s.

General Mladic was a fugitive until 2011, hiding in Bosnia's Republika Srpska territory and in Serbia, often with state support. He received -- and continues to receive -- a general's pension as a retired Serbian general.

How would his criminal case have been handled differently in the Serbian military justice system?

This is the last major case for the ICTY. Remaining appeals and other ICTY business will begin to be transitioned to the Mechanism for International Criminal Tribunals (MICT), also in The Hague. 

Military commissions convening authority ruling on Brigadier General Baker's contempt proceeding

From Defense Department Public Affairs:

Convening Authority Rules on Military Commission's Contempt Proceedings Against Brig. Gen. Baker

The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker's service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel's Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days.

With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a "clean" facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.

The CA noted that it was within the military judge's authority to rule upon the defense counsels' request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was "no good cause" to withdraw after reviewing both the classified and unclassified information concerning the defense's motion.

During the Oct. 31 proceeding, Judge Spath said, "On 20 September 2017, again after consideration of all the classified and unclassified filings. there wasn't any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team."

The CA acknowledged that the classified nature of the proceedings have shaped the commission's proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern.

Editor's comment: Referring General Baker for an ethics review is appalling and yet another self-inflicted wound for the military commissions.

Nominations are now open for Global Military Justice Reform's 2017 Man of the Year. General Baker comes to mind. Anyone else?

Military law and discipline at the danwei level in the People's Liberation Army

“First, we must keep in mind that the military must unswervingly adhere to the Party’s absolute leadership and obey the Party’s orders. Second, being able to fight and win a war [is] absolutely necessary for a strong military. Third, the PLA must maintain its discipline. The military must be governed strictly according to laws.”[1]

Modern military forces the world over are usually governed by a body of national military law that is intended to promote and maintain a high level of military discipline among those who are charged with the responsibility of the national defence. A large and growing English-language literature explores these national laws of many countries around the world, with the curious exception of the People’s Republic of China – and this, despite the size of China’s armed forces and the rising influence of the state (and Party) they serve. Such scholarly attention as the subject has garnered has focussed on the operation of Chinese military courts, with scant attention paid to the role of law in the maintenance of military discipline at the unit (danwei) level. In China, the Regulations on Discipline of the Chinese PLA is one of the key instruments for maintaining discipline at the unit level within the PLA. Discipline regulations were first instituted in the PLA in 1951 replacing the venerable Three Main Rules of Discipline and Eight Points for Attention that were the earliest formal rules applied from 1928 in the Chinese Workers’ and Peasants’ Red Army, the forerunner of the PLA. The Regulations have been modified or supplanted on several occasions since, and the most recent iteration was adopted by the Central Military Commission in May of 2010, coming into force the following month. The current version of the Regulations on Discipline has not previously appeared in English translation, but excerpts are now available [here] on the website of China Law Translate.

The Regulations consist of 179 Articles divided into seven chapters dealing, in Chapter II, with rewards such as medals and commendations, and in Chapter III with punishment. (The formal application of both rewards and punishments in the maintenance of military discipline in China predates the empire. The civil reforms of Lord Shang in the pre-Imperial state of Qin introduced a system of rewards and punishments that became a hallmark of Qin military discipline, and was continued in the army of the new empire after 221 BCE.) The remaining chapters deal with introductory matters (Chapter I), special measures (Chapter IV), complaints and appeals (Chapter V), the duties of leading cadres and discipline inspection (Chapter VI) and supplementary provisions (Chapter VII).

The Regulations apply to all officers, civilian cadres, non-commissioned officers and soldiers of the PLA, as well as to reservists when engaged in hostilities. They also apply to cadets attending military academic institutions and to members of the People’s Armed Police Force, the branch of China’s armed forces with particular responsibility for internal security.

For your military justice bookshelf (or stocking-stuffer)

Major General Michael Scott, CB, CBE, DSO, Scapegoats: Thirteen Victims of Military Injustice (Skyhorse 2015), xiv + 322 pp, $24.99. No. 3 is the unfortunate Vice Admiral John Byng, RN (1704-57). Can you guess the other dozen?

Nepal Army raises double jeopardy issue

The Nepal Army has appealed the murder conviction of three Army officers who were convicted in civilian court following earlier military legal proceedings that handed down six-month sentences. Excerpt from this My República report:

On April 17, 2017, Kavre District Court had convicted Colonel Boby Khatri and Captains Sunil Prasad Adhikari and Amit Pun in the murder of the teenage girl during the Maoist insurgency and slapped life terms on them. The court acquitted Major Niranjan Basnet, who was also accused, stating that the evidence against him was insufficient. 

Khatri, Adhikari and Pun are no longer in the army.

The writ petition has moved the apex court to annual the Kavre district court verdict, arguing that it goes against a precedent set by the Supreme Court and flouts the universal principle against double jeopardy. The writ petition has also claimed that Kavre district court lacked the jurisdiction to hand down such a verdict.

The writ petition has stated that the three army officers had already undergone the punishment handed down by a military court of inquiry and the district court in pronouncing its own verdict had breached its jurisdiction.

Trouble in Gambia: soldiers held without trial

Agence France Presse reports from Banjul:

When strongman Yahya Jammeh left The Gambia for exile after 22 years, new foreign minister Ousainou Darboe pledged the tiny nation would become the “human rights capital of Africa”.

His remarks came days after Jammeh’s forced departure in January, and followed the release of droves of political prisoners from the country’s notorious jails — the face of years of flagrant rights abuses under the mercurial leader.

But as the first anniversary approaches of the December 1 election that would eventually spell regime change for Banjul, AFP has learnt that a dozen soldiers are currently being held in Gambian detention far beyond the remit of the constitution, in some cases for months.

Summer internship at U.S. Army Court of Criminal Appeals

How did you spend your summer vacation? Here's a report from an FIU College of Law student who spent hers usefully, interning at the U.S. Army Court of Criminal Appeals. Great experience for an aspiring JAG.

Human shield case

The High Court in Srinagar has given the government two weeks to report on the status of its investigation into a human shield case involving the 53rd Rashstriya Rifles, according to this report. The incident is being investigated by civilian authorities.

Compensation awarded in Taiwan draftee's death

Taipei Times reports:

The Taiwan High Court yesterday upheld an earlier ruling that army personnel were responsible for the death of Hung Wen-pu (洪文璞), a conscript who committed suicide after being bullied, and said that Hung’s parents should receive NT$2.86 million (US$94,483) in compensation from Army Command Headquarters. 

The compensation was increased from the NT$1.97 million ordered in the first ruling at the district court. 

However, yesterday’s ruling can be appealed.

Uganda police officers withdraw jurisdictional objection to court-martial

There's been a surprising turn of events in the court-martial case involving members of the Uganda police. According to this report from The Independent:

Seven Senior Police Officers have been charged before the Army Court in Makindye with kidnap of two people.

These had refused to plead to the said charges last month saying the General Court Martial had no jurisdiction to try their case, and were then remanded to prison.

On Monday, SPC Joel Aguma, SSP Nixon Agasirwe Karuhanga, D/ASP James Magada, D/AIP Benon Atwebembeirwe, D/Sgt Abel Tumukunde, SPC Faisal Katende and D/CPL Amon Kwarisima appeared before the seven-member-panel of the Army Court, and pleaded not guilty to the allegation.

Through their lawyers led by Caleb Alaka they informed the Court Chairman Lt. Gen. Andrew Gutti that they had dropped the earlier objections and are now willing to take plea.

The officers are jointly charged with two foreigners Rene Rutangugira and Bahati Mugenga for allegedly conveying two people Joel Mutabazi and Jackson Mutabaazi to the Rwanda Government without their consent.

It's unclear why the accuseds dropped their jurisdictional objection. Perhaps a plea bargain?

Human rights norms limit the use of courts-martial to military personnel.

By the numbers

It's that time again. From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, we are proud to report another landmark. As of a few moments ago, we have had 500,000 hits from readers in 179 jurisdictions, 3887 posts, and 529 comments.

Many thanks to our readers, contributors, and commenters for making this landmark possible.

Happy Thanksgiving to one and all.

Suriname massacre case drags on

Pres. Desi Bouterse

The military trial of Suriname's President Desi Bouterse drags on. A final decision is not expected until the second half of 2018. The charges grow out of a 1982 massacre of 15 opponents of the regime at Fort Zeelandia. Details here.

Definitely what Pres. Abraham Lincoln would have called "a case of the slows."

No presidential clemency for Hebron shooter

Israeli President Reuven Rivlin has refused to grant clemency to IDF Sgt. Elor Azaria, who was convicted of manslaughter by a court-martial for shooting a Palestinian demonstrator who had been subdued. The soldier's 14-month sentence had previously been reduced by Chief of Staff Gadi Eisenkot. Details here.

Impunity in Mexico

Peter Orsi of the Associated Press reports:

The vast majority of human rights abuses allegedly committed by soldiers waging Mexico's war on drug gangs go unsolved and unpunished despite reforms letting civilian authorities investigate and prosecute such crimes, a report said Tuesday. 

The Washington Office on Latin America study, described as the first comprehensive analysis of military abuse investigations handled by the Attorney General's Office, found there were just 16 convictions of soldiers in the civilian judicial system out of 505 criminal investigations from 2012 through 2016, a prosecutorial success rate of 3.2 percent. 

Moreover, there were only two "chain of command responsibility" convictions for officers whose orders led to abuses, it said. 

The report said factors that hinder civilian investigations of the military include parallel civilian and military probes, limited access to troops' testimony and soldiers tampering with crime scenes or giving false testimony. 

"This militarized public security model has negatively impacted Mexico's criminal justice system. The civilian justice system faces challenges — including military authorities' actions resulting in the obstruction or delay of investigations — which limit civilian authorities' ability to sanction soldiers implicated in crimes and human rights violations," the group said.

More on the Military Justice Improvement Act

Sens. Mazie Hirono (D-HI), Kirsten Gillibrand (D-NY), and other Senators from  both sides of the aisle are featured in this Big Island Video News video about the need for enactment of the reintroduced Military Justice Improvement Act.

Department of Serendipity

From the time Congress first extended the certiorari jurisdiction of the Supreme Court to reach decisions of the then-U.S. Court of Military Appeals, certiorari has been limited by statute to cases in which that court granted discretionary review. This excludes the lion's share of courts-martial and is a limitation not imposed on state, civilian federal, and military commission cases.

The following, discovered serendipitously, appears on page 34 of Senate Report No. 98-53, April 5, 1983, which accompanied the Military Justice Act of 1983:

In the federal civilian system, of course, any criminal conviction is ultimately subject to Supreme Court review via a petition for a writ of certiorari. Where appropriate the Committee wishes to achieve parity with the civilian system to the maximum extent practicable, but recognizes that the unique nature of the military justice system dictates that the Court of Military Appeals should remain the principle interpreter of the UCMJ and at least at the outset, restricting direct access to the Supreme Court to cases the Court of Military Appeals has agreed to hear is necessary as a practical matter. [Emphasis added.]

The notion that it was somehow impracticable (aside from politically) for military accuseds to have the same access to the Nation's highest court as other criminal defendants was ludicrous at the time and it remains ludicrous. But even if that were not the case, might we not agree that after 34 years we are no longer at "the outset" and that the time has come to set this right?

HASC? SASC? SECDEF? OGC? TJAGs? JSC? DOJ? Anybody home?

CAAF nominee approved by SASC

The Senate Armed Services Committee last week approved the nomination of Prof. Gregory E. Maggs to be a judge of the U.S. Court of Appeals for the Armed Forces. The nomination now moves to the full Senate.

Who should investigate this Cypriot case?

The Attorney General of Cyprus will be investigating allegations that a National Guard commanding officer assaulted one of his soldiers. A military investigative report will be turned over to civilian authorities. Details here.

Senator Gillibrand reintroduces reform measure

Sen. Kirsten Gillibrand

Senator Kirsten Gillibrand has again introduced her bill to shift the disposition power from commanders to lawyers outside the chain of command, according to this report. Excerpt:

"We're not seeing the system get better," New York Senator Kirsten Gillibrand (D-NY) said.

This is the fifth time New York Senator Kirsten Gillibrand has introduced her bill called the Military Justice Improvement Act.

She said she hasn't been given a vote on the bill in nearly two and a half years.

"It is something that people think is debatable, it is something that people think is unanimous and a lot of people don't want to take on the generals. When the generals say no they want to leave it the way it is and I think that is the wrong instinct," Gillibrand added.

Lieber writing prize

Via OpinioJuris:

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Submissions, including a letter or message of nomination, must be received by 10 January 2018. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria. The Prize Committee will acknowledge receipt of the submission by e‑mail.

Military justice and World Philosophy Day

The Taipei Times reports on a World Philosophy Day panel. Excerpt:

The “pursuit of reasoning” has become popular in Taiwanese society and it is timely to re-emphasize the importance of philosophy because it provides “good tools” through which people can reflect on the issues they encounter in their daily lives, said Claire Lin (林靜君), event coordinator and deputy head of the Philosophical Education Development Organization. 

There has been more reflection on the relationship between individuals and society, especially since the high-profile death of army corporal Hung Chung-chiu (洪仲丘), which raised awareness of social justice, Lin said. 

The 24-year-old conscript died of heat exhaustion on July 4, 2013, after being forced to do strenuous exercise in a confined facility. 

Hung’s death raised questions about human rights violations in the military, sparked mass protests in the nation and led to the prosecution of several military officers and non-commissioned officers and major legal reforms, such as the abolition of military courts during peacetime.

"We do owe society a notice"

“When we discharge one of these people, he’s no longer our problem,” said Lt. Gen. Richard Harding, formerly the service’s top legal officer. “But these people who resort to dispute resolution at the end of a weapon, when we boot them out of the service, we do owe society a notice.”

From this Stars and Stripes article about the Devin P. Kelley case by Nancy Montgomery

Single code urged for Indian Armed Forces

Global Military Justice Reform contributor Wing Commander (Ret) U C Jha has written this op-ed for Daily News & Analysis, urging India to move to a single disciplinary code for its armed forces. Excerpt:

The three service Acts differ on various safeguards available to military personnel. These Acts are unable to answer the needs of the modern soldier and are quite at odds with the liberal interpretation of the Indian Constitution. The existence of the separate Acts makes the use, interpretation, and amendment more complicated. It would be easier to modernise and amend a common code for the services than to do so individually. Following the creation of India’s tri-service Strategic Forces Command and uniformity in the functioning of the three services at various levels, there is a need for a uniform disciplinary code for the three services. A uniform code would be more appropriate in view of the fact that the three services are increasingly deployed on joint operations in India and abroad, for which they train together. A modern and fair system of service law is as important to supporting operational effectiveness as having the best-trained and equipped forces as possible.

The argument is unanswerable, but how long will it take to achieve the goal? One question that might be raised is whether the proposed common code would also cover forces such as the Indian Coast Guard, the Border Security Force or the other Central Armed Police Forces.