Army Court of Criminal Appeals to hear oral argument at Yale

The United States Army Court of Criminal Appeals will convene at Yale Law School, 127 Wall St., New Haven, CT, on Tuesday, January 26, 2019, at 6:00 p.m.

No sex, please; we're Americans

Here's Stars and Stripes's account of an on-again/off-again policy about sexual conduct (to include cuddling) by U.S. personnel in Germany. Here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza there was some suspicion that the story was fake news. In this case, however, it seems to have been real.

Happy holidays, everyone.

Happy New Year

Among other things, January 1, 2019 will see major changes in the United States military justice system, with many provisions of the Military Justice Act of 2016 coming into effect, along with pervasive corresponding changes in the Manual for Courts-Martial, United States (2019 ed.).

When will the next changes appear, and what should they address? Transfer of charging power and member selection away from commanders? Widening the jurisdiction of the Supreme Court so the Court of Appeals for the Armed Forces can no longer bar the door by denying review? End court-martial jurisdiction over retirees? Overturn Solorio? Lengthen military judges' terms of office (and fix them, rather than prescribing a minimum)?

Will the incoming House of Representatives be more disposed to hold hearings on military justice bills?

What changes would you recommend for the Military Justice Act of 2021? (Remember to use your name -- no pseudonyms or anonymous comments.)

Groundhog Day in Pakistan

Punxsutawney Phil

Yet again (this makes three), Pakistan is "considering" amending its Constitution to permit military courts to continue to try civilians. The government is preparing the requiring measure, according to this report, although it is not clear what political horse-trading will have to take place to secure the necessary votes. Meanwhile, the Chief of Army Staff has approved another 22 death sentences. Is the steady of approvals of death sentences against civilians intended to underscore the need to have this jurisdiction (which plainly violates human rights norms) or is it to empty death row on the chance that the current arrangement is not once again "temporarily" extended -- all while no action of any consequence has been taken to fix whatever needs to be fixed in the regular courts? How many "hardcore terrorists" does this country have?

Pay up!

Under the category of "not military justice, but . . . ," watch for litigation in Ireland over a host of military pay issues, according to this report in the Irish Examiner. PDForra, the association of soldiers, has retained senior counsel to bring new lawsuits and obtain the benefit of previous adjudications.

Military justice is music

Flt. Lt. J.J. Rawlings, GAF (Ret)

The Trial of J.J. Rawlings, a musical, will be performed on December 31, 2018 and January 23-5, 2019 in Accra, Ghana. It concerns the history-making May 1979 court-martial of Flight Lieut. Jerry John Rawlings, who later became President of Ghana. Details here. A brief YouTube video about the trial can be found here.

Kenyan judge advocate wins judgment

The High Court of Kenya has handed a considerable victory -- and Sh24 million (~$235,000) -- to Lieutenant-Colonel Moses Lukalu Sande, a judge advocate who was involuntarily dismissed without reasons (and, perhaps more to the point, without the country's president's signature). The officer seems to have been fired in retaliation for not toeing the party line, according to this report in The Daily Nation. He had released information (which the government claims was secret) that helped another member of the Kenya Defence Forces win a court-martial case. Excerpt:

For instance, the court heard, in 2013, the KDF was preparing to initiate court martial proceedings against several servicemen who were accused of breaching various laws. Mr Sande advised that revised regulations for the army at the time had not been effected hence several cases would fall flat on their faces.

His boss and chief of legal services at KDF Kenneth Okoki Dindi viewed this as insubordination, arguing that Mr Sande “resisted instructions from him and continually undermined command maintaining the antagonistic position despite the Act having transitional provisions”.

“During the review of the Armed Forces Act (now repealed) Mr Sande was pushing for amendments that went against the grain of a disciplined force,” Mr Dindi added.

In the same year, ex-soldier Phinhas Mugo was facing seven charges at the court martial court related to losing his duty-assigned weapon, leaving his post before being relieved and absconding work.

KDF prosecutors were caught flat-footed when Mr Mugo’s lawyer, Odera Were, used KDF’s hiring policy at the legal department to challenge the case.

Angered by Mr Were’s knowledge of the policies which appeared to strengthen Mr Mugo’s case, KDF opened investigations into how the information had been acquired.

Court records do not indicate the findings of the probe, but show that Mr Sande had communicated the information to Mr Were.

KDF immediately opted to dismiss Mr Sande, arguing that he shared classified information with an unauthorised individual.

In other words, Lt-Col Sande leaked information about the status of a regulation. No wonder the High Court found the government's action offensive. Let's see if the government takes the matter to the Court of Appeal. Nice reporting work by Brian Wasuna on a disturbing case. 

Time warp

An interesting question has been raised in a case in Pakistan: can a civilian be tried by military court under authority enacted in 2015 for an offense said to have been committed years before? Watch this case.

Bread and water, anyone?

The New York Times has this Christmas Day report on the end of bread and water as a punishment under the Uniform Code of Military Justice. Please note that the last two paragraphs (which quote the editor of this blog) are garbled and include errors. I understand they will be fixed.

Postscript: A few hours later The Times modified the online version of the article and posted this correction:

An earlier version of this article referred incorrectly to the Supreme Court review process for disciplinary cases. Reviews to the Supreme Court are handled by the United States Court of Appeals for the Armed Forces, not by the military itself.

Translation: unless the Court of Appeals for the Armed Forces grants discretionary review, a court-martial appeal cannot be considered by the Supreme Court. Thus, when it declines to grant its own review, CAAF also blocks review by the Supreme Court. Because CAAF grants review in only a small fraction of the cases that are brought to it, the lion's share of courts-martial are ineligible for Supreme Court review . . . unlike state and federal civilian criminal cases and even military commission cases.

38 senior officers' case plods on in Nigeria

It's complicated and concerning: 38 Nigerian Army senior officers who were involuntarily retired in 2016 continue to await a ruling by the National Industrial Court. Details here courtesy of This Day 's Davidson Iriekpen.The government is seeking to do an end run around the court by seeking recusal of the presiding judge for alleged bias.

Disciplinary v. administrative action

Justice John Logan, president of Australia's top military court, has suggested that there are reasons not to use administrative separations when disciplinary action is called for. Transparency is one of them. Here's a report from The Australian. Excerpt:

Justice Logan said that dealing with the soldiers’ conduct under the DFDA could have offered the potential for the exposure of the allegations to what the current CDF, Angus Campbell, in his earlier capacity as chief of army “once pithily described as ‘the healing light of truth’.”

It's reminiscent of soon-to-be former U.S. Secretary of Defense James N. Mattis's recent suggestion that commanders weren't using the UCMJ enough.

Postscript: Justice Logan's remarks can be found here on the Federal Court of Australia's website. H/T to Pascal Levesque for the link.

Some straight talk out of Pakistan

Soon after the APS [Army Public School] incident, during an All Parties Conference and at the floor of parliament, the flawed justice system was not only acknowledged, there was also a call for cogent reforms. Among the core conditions for passing the 21st Amendment was also that the government would bring about tangible reforms and strengthen the justice system. Consequently, within a week, the government implemented point 2 of NAP [National Action Plan] by empowering military courts for the trial of civilians. However, reforms in the justice system have to date been placed on the back burner. 

At the time that military courts were established for civilians’ trials, it was correctly argued by rights activists that such temporary measures may in the long term be a threat to the legal due process and rule of law in the country. Secondly, they would also have a corrosive impact on Pakistan’s struggle to create an “independent and strong judicial system”. But as this was also part of NAP, the government didn’t listen to the concerns raised by human rights bodies nationally as well as internationally, and the amendment was implemented.

From this op-ed by Peshawar attorney Irshad Ahmad in The News International

After going on four years with unfulfilled promises to fix the civilian criminal justice system, Pakistan should bite the bullet by simply (a) letting the military courts authorization expire and (b) rolling up its sleeves and actually do what needs to be done to fix the civilian courts. The good news is that the Pakistan Peoples Party has announced that it will oppose another extension.

Merry Christmas & Happy New Year

As time runs out

What do you do if the "constitutional amendment" permitting trial of civilians by military courts is approaching its expiration date? If you are Chief of Army Staff in Pakistan you confirm death sentences en masse. Fourteen death sentences were approved yesterday, according to this report.

Reality check

Today's USA Today has this worthwhile column by two law of armed conflict and military justice experts, Professors Geoffrey S. Corn and Rachel E. VanLandingham, about the case of Maj. Mathew Golsteyn, who is slated to face a military preliminary hearing next year on a murder charge.

Summary courts-martial and natural justice

The Indian Supreme Court in its decision of 10 December 2018 has quashed the summary court martial proceedings on the grounds that the accused was not allowed the services of a civilian lawyer.

The Court held, “In the present case, the accused had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense. For these reasons, we are of the view that there was a clear violation of the principles of natural justice.” The Court, has clarified, “ … we have interfered with the order only on the ground of a violation of the principles of natural justice. It would be open to the Respondents (Union of India) to take further steps as may be permissible in accordance with law.”

In a trial by summary court martial, an accused is allowed services of a “Friend” to defend his case under the Army Rules 129. It states: “Friend of accused—In any summary court martial, an accused person may have a person to assist him during the trial, whether a legal adviser or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross examine witnesses or address the court.”

Under Regulations for the Army paragraph 479, when a person subject to Act is being tried for an offence punishable with death (only general or summary general court martial have such power) and the accused cannot engage a counsel for his defence owing to lack of pecuniary resources, the convening authority may provide a defence counsel at the government expenses.

The practice in the Indian Army is that the accused is allowed service of an officer or other rank as “Friend” from the same unit where summary court martial is being held. Such officer/other rank have practically no role, because the trial is held by the commanding officer. Summary court martial is Colonial Era provision still followed by the Indian Army. There have been numerous decisions of the higher courts in India where the trial by a summary court martial has been held arbitrary denying basic rights to a fair trial to an accused.

The decision of the Supreme Court can be found here:

https://www.sci.gov.in/supremecourt/2013/41081/41081_2013_Judgement_10-Dec-2018.pdf.

Jurisdiction over retirees

Prof. Rachel E. VanLandingham
Southwestern School of Law

Global Military Justice Reform contributor (and NIMJ vice president) Prof. Rachel E. VanLandingham has written an insightful opinion piece for The Hill about the exercise of court-martial jurisdiction over military retirees. Her conclusion:

If and when a military retiree engages in criminal conduct, the state or U.S. attorney should appropriately prosecute him or her, not the military through a court-martial primarily designed for swift imposition of punishment for offenses harmful to the services. Hopefully the U.S. Supreme Court will take advantage of the case before it to end this unfair overreach. If not, Congress must act to end this unconstitutional military criminal jurisdiction over military retirees who are civilians receiving a monthly check for proud service rendered to their country.

Full disclosure: the editor is co-counsel for a certiorari petitioner who is currently challenging military justice jurisdiction over retirees.

184 and counting

Today Andorra became the 184th jurisdiction from which Global Military Justice has readership. Welcome!

While we are running the numbers here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, as of today we've had 4646 posts, 631 comments, and an amazing 623,266 hits. Our roster of contributors stands at 24 (and one editor). The blog was established on January 12, 2014.

Thanks to everyone for your support of this blog. Merry Christmas and Happy New Year.

Here we go again?

Pakistan's political leaders have little time left to decide whether to extend the country's military courts' power to try civilians. The current state of play is described here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Pakistan has already amended its Constitution twice to permit such trials. Will it go for a third? Is a measure with a mere 2-year life-span really a constitutional amendment?

Very light punishment for very serious crimes

In September 2017, ten members of the Guardia Civil (Civil Guards) were detained for cooperating with drug traffickers in Torrevieja, in the south of Alicante. In total, 19 persons were arrested: ten from the Guardia Civil and nine others charged in different phases of the operation which extended from Alicante, Valencia, Cádiz to Murcia. Another seven persons were investigated for belonging to the gang of drug-traffickers. The "Sakura Operation" dismantled three domestic, artisan laboratories dedicated to the production of cocaine. The Civil Guard seized 200 grams of cocaine as well as 25,000 euros in cash and a large amount of computer equipment. The ten were accused of a wide range of crimes ranging from extortion to bribery, falsification of documents and membership in a criminal organization.

The Spanish press reported that the Guardia Civil is a paramilitary branch of the Army, charged with providing information on the activities of civil society and participating in them. Given this control function, the Guardia Civil finds itself immersed in illegal networks which it says it is trying to combat. Consequently, one cannot really speak of corruption, one has to speak of the system; the manner in which these repressive, anti-democratic institutions relate to the economic world, both legally and illegally. When one says that the police controls illegal traffic, shady businesses, the black, grey and white market, it is not an exaggeration, it is literal. On a day to day basis legality and illegality are blurred into total confusion. By 2018, eight members of the Guardia Civil were still in detention and one of the agents was punished with three months' suspension of employment and salary, despite having been charged with seven serious crimes: belonging to a criminal group, breaching trust in the custody of documents, revealing secrets, omission of the duty to prosecute crimes, etc.

The member of the Guardia Civil who was punished challenged the three month suspension because he charged that it undermined his right to a presumption of innocence and in addition, the acts that were imputed to him "took place while he was not in service."

The judges of the Central Military Tribunal rejected the Guardia Civil's challenge and affirmed the punishment, which was based on the Guardia Civil's Disciplinary Code. The agent had "created a serious disturbance of civil security and a notorious harm to the service" and deserved the three month suspension, which was the most serious punishment available.

NIMJ policy statement

The National Institute of Military Justice has issued this policy statement:

Public comments by the President regarding on-going war crimes investigations are condemnable because they can undermine full and fair investigations and subject those making prosecutorial decisions to impermissible pressures. Such interference in preliminary military justice proceedings does a disservice to those serving in uniform, who must rely on the rule of law to safeguard unit discipline and maintain fairness. The U.S. military has a legal and moral duty to investigate all allegations of war crimes by its forces, and to prosecute if warranted, and the Commander-In-Chief must ensure such obligations are fulfilled.

An incomplete step in the right direction

Cameroon has released 289 English-speaking civilians who were to be tried by military court. From this report:

Ngaibe Philippe, one of the lawyers defending English-speaking detainees, says [Cameroon Pres. Paul] Biya should be tried for refusing to respect Cameroon's laws and taking people charged with simple crimes to the military tribunal.

"How on Earth would you take a crisis of misdemeanor and they are judged in a military court," Ngaibe said. "Now a majority like our president, Sisseko (Ayuk Tabe), fall under felonies. It means those ones are going to remain in jail while a minute number of 289 are released under misdemeanor. This is absolute nonsense and it is not going to change the face of the struggle in anyway."

Amnesty International released this statement.

Military trial sentences qua civilians in Pakistan

It has been reported by a Pakistani website that military courts in Pakistan have handed over 284 death sentences to ‘militants’ out of which 56 persons have already been executed.

This was informed to the National Assembly by the Defence Minister of Pakistan.

Trial of civilians by military courts has always been a sore point in many jurisdictions, and more so in Pakistan where there has been complete secrecy surrounding these trials.

In cases brought before Constitutional Courts in Pakistan, it has been revealed that almost the same pattern of paperwork has been followed in most trials proving the same to be a sham under law.

Such military courts have come under sharp criticism for being held in secret locations, without a proper appellate process to civil courts, without the sharing of documents of trial and without the assistance of lawyers.

Though the civil society has raised the issue time and again, not much seems to have come out of it.

Judicial independence in South Africa's military justice system

The following is an excerpt from the decision of the High Court of South Africa, North Gauteng Division, Pretoria, per J.R. Murphy, J., in Timakwe v. President of Court of Senior Military Judge and Others (69441/11) [2018] ZAGPPHC 246 (19 April 2018) (footnotes omitted):

The constitutionality of Chapter 3 of the MDSMA [Military Discipline Supplementary Measures Act, 1999] 

30. The applicant seeks several declarations of constitutional validity. He firstly contends that the MDSMA fails to secure an adequate degree of independence for the Adjutant General and military judges (including senior military judges) in that such officers are in the same position of other military officers regarding their terms and conditions of employment including: remuneration, promotion, assessment of performance, discipline, transfer etc. In addition, military judges enjoy inadequate security of tenure. For these reasons, the applicant submits that Chapter 3 of the MDSMA dealing with the appointment of military judges and the Adjutant General is inconsistent with the Constitution and invalid; and the exercise by senior military judges of the jurisdiction conferred by section 9 of the MDSMA to try the applicant for murder and other offences is consequently also unconstitutional and invalid.

31. The applicant misconstrues the role of the Adjutant General. In terms of section 28 of the MDSMA he or she is responsible for the overall management, promotion, facilitation and co-ordination of activities in order to ensure the effective administration of military justice and legal services. The role of the Adjutant General is therefore one of management and administration of the military legal system. The Adjutant General does not perform a judicial function and there is accordingly no requirement for him or her to observe the strictures of judicial independence and impartiality.

32. The requirements of judicial independence vary depending on the nature and function of the particular institution. The respondents maintain that the military courts established in terms of the MDSMA are sufficiently independent for the functions assigned to them. The Minister appoints military judges for a fixed period or specific deployment on the recommendation of the Adjutant General who must be convinced upon due and diligent enquiry that the officer is a fit and proper person of sound character. In terms of section 13(2) of the MDSMA only an appropriately qualified officer holding a degree in law may be assigned to the function of a senior military judge or military judge. Section 14(4) of the MDSMA requires that officers assigned as military judges perform their functions "in a manner which is consistent with properly given policy directives, but which is free from executive or command interference." The Minister, acting on the recommendation of the Adjutant General, may remove a military judge on the grounds of incapacity, incompetence or misconduct.

33. Section 19 of the MDSMA includes a number of provisions aimed at ensuring the independence of military judges. They are required in the exercise of their authority under the MDSMA, inter alia, to: i) be independent and subject only to the Constitution and the law; ii) apply the Constitution and the law impartially and without fear, favour or prejudice; iii) conduct every trial and proceedings in a manner befitting a court of justice; and iv) ensure fairness to an accused by affording appropriate assistance. Moreover, military courts are courts of first instance subject to appeal and review before the CMA and the High Court, which will protect them from undue interference with their independence and supervise the manner in which they discharge their functions. While military judges are assigned for a fixed period or for a specific deployment, section 17 of the MDSMA protects them from arbitrary removal and they remain in establishment posts where they enjoy the ordinary legal protections against unlawful or unfair dismissal. No military commander may remove a military judge from assignment.

34. While it is undoubtedly true that military judges do not enjoy the protection afforded to ordinary judges, the Constitutional Court has recognised that judicial independence can be achieved in a variety of ways and that the most rigorous and elaborate conditions of judicial independence need not be applied to all courts. It is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system. The fact that the Minister and the Adjutant General, members of the Executive, have a strong influence in the appointment of the military judges does not mean that the military courts lack institutional independence. As indicated above, all military judges are required to exercise impartiality and independence in the discharge of their duties and take an oath of office in terms of section 18 of MDSMA requiring them to do so. It is relevant, as intimated earlier, to keep in mind the core protection given to all courts by the Constitution, to the particular function that the military courts perform and to their place in the court hierarchy. The greater the protection given to the higher courts, the greater is the protection enjoyed by the military courts.

35. The provisions of the MDSMA therefore ensure sufficiently that the military courts are independent and the constitutional challenge on that ground is without merit.

Please post a comment (real names only, please) if any information is available as to whether this case has been appealed. 

Another naval tradition bites the dust

First it was flogging, then it was confinement at hard labor, then it was loss of numbers, now it's bread and water. Where will it end?

Details here from Navy Times.

The ages of man

During my first ten years in judge advocate work, I thought I knew all the answers, knew exactly what was right in every case. During my second ten years, I developed a few doubts in certain areas. During my third decade of service I discovered that I knew less and less and I had a great many doubts. Now that I have retired and have entered my fourth decade, I have doubts about almost everything.

Major General Kenneth J. Hodson, The Manual for Courts-Martial--1984, 57 Mil. L. Rev. 1 (1972)

Ever heard of "Biribi"?

Nicola Cooper of Northampton University has published Biribi: Disciplining and punishing in the French Empire, 29 French Cult. Stud. 321 (2018). The abstract advises:

This article discusses the infamous Bataillons d’Afrique to which French former criminals were sent to complete their duty of military service. The ‘Bat d’Af’ were created to prevent the young male bourgeoisie from having to mix with these ‘undesirables’ and ‘reprobates’, and they were stationed well away from the mainland in France’s North African colonies. This article discusses themes such as discipline, punishment, torture, homosexuality, interracial power relations, and delinquent ‘cultures’ in this imperial context.

A related article from a decade ago is John Cerullo, The Aernoult-Rousset Affair: Military Justice on Trial in Belle Époque France, 34 Hist. Reflections 4 (Summer 2008).

The heart of the matter: brutality, unfairness in the French military justice system and -- surprise! -- determined resistance to change.

Lenient sentences in the Australian military

The Daily Mail wrote about Australian military members receiving lenient sentences in sexual misconduct cases. They highlighted one case of an Army officer serving three months incarceration for raping a private with a beer bottle. The paper compared his sentence to three individuals convicted of a similar crime, who received 18 months confinement, suspended after six months.

Are the data points cited by The Daily Mail reflective of a global problem for the military in adjudicating sexual misconduct? Or do they ignore the complexity of individualized sentencing? If the Australian military sentences like the U.S. Army, discharging a Soldier then suspending their confinement is neither authorized nor practical. The military seeks to dismiss convicted sex offenders from its ranks, like that Australian captain, not supervise offenders through an ad-hoc probation system. The difference in served confinement may also reflect a discount for the officer's public service, assuming the teenagers did not present as much mitigating evidence.

The better question is whether three-to-six months confinement is within the proper sentencing range for raping someone by instrument. Both sentences strike me as too low, even for first time offenders. But under punishing sexual offenses is not isolated to the military, as the last few years has made clear. Neither Brock Turner nor Jeffrey Epstein wore uniforms when committing their crimes.

Perhaps the answer to disparate sentencing in the military is to adopt formal guidelines, like the U.S. federal system. The most recent change to the UCMJ, effective at the start of 2019, passed on such a system. Not only could such uniformity in sentencing ensure a more equal system, it would also bolster public confidence by countering, at least a little, the perception that military offenders are escaping punishments their civilian counterparts are not.

Finland: no jail for conscientious objectors

Conscientious objectors to mandatory civilian or military service cannot be jailed for avoiding such service, according to a recent Finnish court decision. To do so would unfairly discriminate such objectors from Jehovah's Witnesses, who are already exempt from mandatory service.

The ruling was made by the civilian Helsinki Appeal Court. International human rights law strongly disfavors military trials of conscientious objectors.

New from the Geneva Centre

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) has published Understanding Military Justice: A Practice Note (2018) by Mindia Vashakmadze. This excellent Practice Note is a product of the Security Sector Reform Working Group of the Partnership for Peace Consortium. The following excerpt explains the purpose:

Legislating for the security sector is a complex and difficult task. For this reason, many lawmakers are tempted to copy legislation from other countries. This expedites the drafting process, especially when texts are available in the language of the lawmaker. However, it frequently results in poor legislation. Even after being amended, the copied laws are often out of date before coming into effect. They may no longer be in line with international standards, and may not fully respond to the requirements of local context or legal order. 

In Eastern and Central Europe, as well as the countries of the Former Soviet Union (FSU), the public debate on the security sector has been ongoing since the fall of the Berlin Wall. However, in many states within this region, the creation of a sound legal framework for the effective operation of security sector agencies, including justice institutions, remains a challenge. It is crucial to ensure that such a legal framework is based on international legal standards, as well as lessons learned from comparative experience. 

The motivation for this Practice Note came from practitioners involved in reform processes across the region who seek guiding principles and comparative analyses of legal models in various areas, including the judiciary. There is growing support within domestic legal systems of these countries for increased judicial accountability of the armed forces (and other security sector agencies). Military justice is an important tool to ensure such accountability.

This practice note is primarily addressed to those who intend to draft new military justice legislation or amend existing laws. This includes parliamentarians, civil servants, legal experts and nongovernmental organisations. The note may also be helpful for security officials. Additionally, it may serve as a reference tool for researchers and students interested in security sector legislation. 

The analysis here in is largely based on international standards and comparative experience and provides easy access to international norms as well as examples of legislation from the region and beyond.

DCAF suggestions for Ukraine

Because Ukraine is considering reintroducing military courts, the Geneva Centre for the Democratic Control of Armed Forces has issued a 2018 "guidance note" on Military Justice in Ukraine by Mindia Vashakmadze. You can find it here.

A puzzling claim

The South African National Defence Force has recently conducted a court-martial of 16 members in connection with an assault on a Congolese national. What's puzzling is this part of the iAfrica account:

The trial has been views as historic and ground-breaking trial because this is the first time, the Prevention of Combating and Torture of Persons Act has been used to charge 16 of its members.

They were deployed in the Democratic Republic of the Congo (DRC) as part of the Force Intervention Brigade (FIB) of Operation Mistral.

The SANDF said although they were not convicted in terms of the act, the case paved the way for the use of the act in the future.

How's that again?

“Of the original 16 accused, 11 were convicted. Five of the accused were acquitted. Even though no accused were convicted of contravening the provisions of the Prevention of Combating and Torture of Persons Act, they were found guilty of common law assault. This case cleared the way for the future application of the act,” [SANDF spokesperson Brigadier General Mafi Mgobozi] added.

How so? Were the accuseds acquitted of charges laid under the torture act? If so, how does that "clear the way"?

On to Parliament?

Lt Gen (Ret) D.S. Hooda of the Indian Army writes here that the country's Parliament needs to step in now that the Supreme Court has determined that civilian justice has a role to play despite the Armed Forces (Special Powers) Act. Excerpt:

The military justice system is meant to preserve efficiency, good order and morale, and it has effectively ensured high standards of discipline in the Indian Army. The faith of soldiers in the military justice system remains strong because there is confidence that those dispensing justice have a clear understanding of the Army’s way of life. If this faith is eroded by diluting the provisions of the Army’s courts of inquiries and dragging Army personnel to criminal courts, it will adversely affect how the Army operates. It is likely that counter-terror operations will be characterised by caution and a play safe attitude.

Apprehensions of the Army are genuine, but this is a battle that cannot be won in the civil courts. We should be clear that there will always be a narrow interpretation of the law in allegations of human rights violations. It is the responsibility of the government to step in with legislation that ensures protection to the soldier from undue harassment. The Supreme Court correctly pointed out to the Solicitor General, “who has stopped you from coming out with a mechanism? Why does it require our intervention? These are issues which you have to discuss, not the courts.”

This is perhaps a good time to review the AFSPA. This act has long been criticised by civil society groups as being draconian, but an amendment to the act was strongly opposed by the Army on the grounds that it is an enabling act that provides the required protection to soldiers operating in disturbed areas. This may no longer be true.

By the way, is Parliament taking steps to overhaul the military justice system, which is seriously out of date (think: pre-Findlay)? 

Mark your calendar

The U.S. Court of Appeals for the District of Columbia Circuit today entered an order setting down for hearing two cases arising from a military commission being tried at Guantanamo Bay, Cuba. In re Al-Nashiri and In re Spears & Eliades will be heard on January 22, 2019 before Judges Judith W. Rogers, David S. Tatel and Thomas B. Griffith. Al-Nashiri concerns a military judge's participation while he was negotiating for a job with the Department of Justice as an immigration judge. Spears & Eliades concerns whether two defense attorneys were justified in withdrawing.

Full disclosure: the editor is one of the counsel for the Ethics Bureau at Yale (EBaY), which filed a brief as amicus curiae in al-Nashiri.

Criminal justice system and military discipline; a world apart!

December 3, 2018.  An Opinion Piece penned by Michel W. Drapeau titled "Plague of sexual misconduct in military can't be solved internally"  is published in Lawyer's Daily.  Here is the essence of the opinion:

For the past two decades, the military has received several public warnings about the deep-seated crisis of rampant sexual misconduct in its ranks.  Astonishingly, in response to this crisis affecting both the safety and integrity of soldiers, sailors and aviators as well as the reputation of the institution, in 1998 Cabinet transferred the investigation and prosecution of sexual assaults to the military to “enable the military to deal with the incidents swiftly for the sake of unit cohesion.”  In plain language this meant that ‘unit cohesion’ – an euphemism for military control – was to take precedence over the safety, integrity and dignity of soldiers. 

Last week the Auditor General weighed in with a report aimed at determining whether the military actually have taken adequate measures to cope with the issue of sexual misconduct including the provision of support to victims of sexual misconduct. The AG report is anything but satisfying. The AG concluded that the military has not always dealt with the reported incidents in a timely, consistent and respectful manner. As a result, some victims chose not to report an incident or withdraw their complaint because they were not convinced that the investigations would lead to concrete results. The AG report is a clear signal that the military simply cannot solve this twenty years’ crisis on their own. 

Parliament must now assume leadership to both provide military members with a safe workplace allowing them to maintain their physical and mental integrity and to preserve the character and reputation of the armed forces as a disciplined, professional force.  As a matter of priority, legislative changes must be made to ensure that victims of crimes be immediately entitled to the same protection afforded to every other individual in Canada under the Canadian Victims Bill of Rights. Secondly, the National Defence Act must be amended to return jurisdiction for sexual assaults to civil courts

Herein a few words on not getting the memo

Ed Brayton, writing here for his Dispatches from the Culture Wars blog, reports:

Sean Hannity, who is as clueless as he is obsequious, had a caller to his radio show who suggested that Trump should use military tribunals to investigate the Department of Justice. He agreed with him and said it was within Trump’s power to do so. Pro-tip: It isn’t.

CALLER: I haven’t heard an idea that I have, and I don’t know if it’s feasible or not. With the corruption in the Department of Justice, the people that are demanded to appear, they don’t appear, they appear, they lie, everything that’s going on with all the corruption — what about — does President [Donald J.] Trump have the authority to do — have the JAG in the military do a tribunal, and investigate the Department of Justice that way? Where Congress —

SEAN HANNITY (HOST): He actually does have that authority. 

CALLER: — apparently cannot do its job.

HANNITY: Well, it’s the — again, that would be within the realm of the executive branch of the government, which he is the head of.

[Brayton:] No, no, no. The only time military tribunals can be used for civilians — and even this is highly questionable — is when they are accused of war crimes or participated in a military action against the United States. They cannot be used for civilians under any other circumstances. The Supreme Court ruled this in 1866.* I wonder, is there any exercise of power that Trump could undertake that Hannity wouldn’t be a cheerleader for?

* Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). [Footnote added.] 

For your military justice bookshelf

LexisNexis/Matthew Bender has just published Military Court Rules of the United States: Procedure, Citation, Professional Responsibility, Civility, and Judicial Conduct (4th ed. 2018), by Global Military Justice Reform contributor Franklin D. Rosenblatt and editor Eugene R. Fidell. The massive compendium, issued under the aegis of the National Institute of Military Justice, brings together the surprisingly numerous and diverse current rules for trial and appellate proceedings before both courts-martial and military commissions, with topical introductions by a roster of expert commentators. A must if you practice in any of the covered jurisdictions. Staff judge advocates, convening authorities, judges, and court staff will also find it handy.

AFSPA and civilian jurisdiction in India

The Supreme Court of India has rejected a challenge by Army officers to civilian proceedings against them arising out of alleged fake encounters. The officers had sought to interpose the Armed Forces (Special Powers) Act. The court was having none of it, judging by this account:

The top court had in a ruling on July 8, 2016, ruled that the mere fact that the law was in force in a disturbed area would not give blanket immunity to the forces from any unjustified deaths.

But in this case, the court drew the line at unjustified deaths, implying that personnel would be answerable for any disproportionate force used by them in the disturbed areas. In the first instance, the central government urged the top court to review the ruling. But the court stuck to its stand.

Mass justice in Nepal

A Nepalese court-martial has announced its verdict in a trial involving a whopping 173 members of the Army, according to this report in The Himalayan.

Any bets on whether each accused was separately represented?

Conscientious objectors being released in South Korea

South Korea has begun to release its many imprisoned conscientious objectors, following a decision of the Supreme Court. The Washington Post has the details here.

A credulous column from Pakistan

"The rationale behind the institution of military courts is that these are efficient in handing out convictions." So writes Mohammad Jamil, in this credulous column in the Pakistan Observer. The column never addresses the fact that the country has, in nearly four years, taken no steps to remedy what are said to have been flaws in the civilian courts that were claimed to give it no alternative but to turn to military for the trial of civilians. He claims that "Military Courts are not something unique to Pakistan, as all states use such legal framework in emergencies." That is simply not true, and those that do use military courts to prosecute civilians are violating human rights requirements. See, e.g., Cameroon, Uganda, Egypt, Venezuela.

Military justice slows to a halt in Canada

Stuart Peddle writes in the Halifax Chronicle-Herald about the current freeze-up in Canada's military justice system. The Supreme Court will hear the government's stay application on January 14, 2019 and has set March 26, 2019 as the hearing date on the merits of the pending appeal from a decision of the Court Martial Appeal Court. "Further complicating matters is the chief military judge, Col. Mario Dutil, is facing charges himself, stemming from allegations he entered a consensual relationship with a subordinate. Dutil is one of only four military judges hearing cases, leaving the system down to three."

A conscientious decision from ROK's Supreme Court

New York Times reports a consequential decision for conscientious objectors in the Republic of Korea.

Fifty-eight young men who had been imprisoned for refusing to serve in South Korea’s military were released from prisons across the country on Friday, after a landmark court ruling that supported the rights of conscientious objectors.

The ruling by South Korea’s Supreme Court on Nov. 1 acquitted a conscientious objector for the first time in the country’s history. The court recognized “conscience or religious beliefs” as a justifiable reason to refuse to serve in the military.

For decades, South Korea has required all able-bodied men in South Korea to serve a minimum of 21 months in the armed forces under a conscription system seen as crucial to the country’s defense against North Korea. The punishment of those who cited their religious beliefs in refusing to serve has been both uniform and harsh.

Guided by the Nov. 1 ruling, lower courts are expected to dismiss cases against 930 men, most of them Jehovah’s Witnesses, who are currently on trial for refusing to do mandatory service in the armed forces if they are determined to be conscientious objectors.

The article notes that the decision does not appear retroactive for those whose appeals were exhausted prior to 1 November.  The U.S. military is having a similar situation, concerning the retroactivity of some consequential CAAF decisions, from appellant's whose appeal was complete.  They have been asking for a new decision based on two important cases: United States v. Hills, and United States v. Mangahas.   Some prisoners are trying for habeas corpus relief in federal court but don't seem to be succeeding.

New Canadian website of interest

Global Military Justice Reform contributor Tim Dunne has created a new website, Canadian Observatory for Military Justice Reform. From the site:

Canada’s military justice system operates outside the purview of many Canadians, whose taxes fund its operations, as well as those of the Department of National Defence (DND) and the Canadian Armed Forces (CAF). The Canadian military’s justice system operates separately from and independently of the Canadian civilian justice system and, as a consequence, is largely invisible to the general Canadian public.

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is an English case that dealt with the impartiality and recusal of judges. It is the root of the principle that the mere appearance of bias is sufficient to overturn a judicial decision and led to the aphorism “Not only must Justice be done; it must also be seen to be done.”

To many, both military and civilian, entering a court martial is like entering a different world. Courts martial have their own rules and are administered, adjudicated, attended and argued by military personnel in uniform. Members of the public are normally welcome to attend courts martial and interested members of the community should make an effort to do so to ensure that justice is, indeed, seen to be done.

This website is dedicated to opening the doors and drawing back the drapes on Canada’s military justice system, to contributing to an increased public awareness of this system, and to promoting a public discussion and dialogue.

 Congratulations to Tim. We look forward to using and learning from the new, user-friendly site, which is still being populated but already includes many useful links.

Why is this case in a military court?

A German freelance journalist has been charged in a Venezuelan military court with rebellion, violating security zones and espionage. Details here.

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

To read or not to read

I don't know if Hit and Run by Nicky Hagar is on the Worth-the-Read list.  The book appears to stem from and be about the Operation Burnham inquiry--as reported by Andrea Vance. 

Hit and Run author Nicky Hager has launched a stinging attack on the Defence Force for a "petty" approach to an inquiry into controversial SAS raids.

Hager says Defence Force staff believe the investigation is about clearing their name - and protecting the organisation's reputation rather than the deaths of six Afghan civilians in 2010.

The book detailed a raid by the New Zealand Special Air Service (SAS) soldiers in August 2010 in Tirgiran Valley. The authors said six civilians – including a three-year-old girl – were killed and 15 injured, and the events later covered up by the military.

Which generated an inquiry by Attorney-General--the Operation Burnham Inquiry.  The various articles referenced by Ms. Vance seem to address "a street protest of graffiti, banners, and billboards that claimed the Defence Force "tells lies" and "covered up war crimes"." 

[https://www.stuff.co.nz/national/politics/105112362/the-defence-forces-war-on-graffiti?rm=m]

[https://www.stuff.co.nz/national/104862339/defence-force-unit-to-fight-hit-and-run-claims?rm=m]

Here is a link to the Inquiries home page.

A massacre in Guatemala

In 2010 Santos Lopez Alonzo was arrested in the US on immigration violations and held as a material witness in the US prosecution of a fellow former Guatemalan soldier. On August 10, 2016 he was deported to Guatemala after a federal court refused his plea to stay because he feared for his life.  He feared for his life, he said, because he gave testimony to a grand jury in the US.

Lopez formed part of an elite US-backed special patrol of the Guatemalan Army known as the "Kaibiles" who carried out special operations and intelligence.  He was one of four soldiers suspected of having participated in a massacre and who ended up in the US living in Florida, Texas and California until they were arrested.

On November 27, 2018, Lopez, now 66, was sentenced by a Guatemalan court to 5,160 years in prison for having participated in one of the worst massacres in Guatemalan history, in a village known as "Las Dos Erres," in the north of Guatemala, during December 6-8, 1982.  He was convicted of the killing of 171 persons and crimes against humanity against 201 victims, and received 30 years in prison for each of the persons killed and an additional 30 for the crimes against humanity.  The numbers are symbolic because the maximum sentence permitted under Guatemalan law is 50 years.

An independent truth commission held the Guatemalan Army responsible for most of the deaths in the 36 year civil war that resulted in 200,000 deaths.

Why is this case in the military justice system?

Charge: attempted murder x2, off-base. Why is it in the military justice system rather than local court?

Les misérables!

November 26, 2018 an article published by Cameroon media reveals the latest travails of a military tribunal. The facts are quite simple. Chimène Ngwenn is accused of failing to honour the national flag during a sunset ceremony by the Balamba constabulary in March 2018. At the time Ngween was sitting inside an adjoining bistro and did not stand up to show respect to the flag. On account of the loud music, she claimed not having heard the whistle sound made by a constable. She was promptly arrested and wes firmly walked over to the police station by a police officer.

In attendance, her husband, Angelo Omologa, intervened to free her and send her home. Days passed, and suddenly the husband was charged with “rebellion”. 

Angelo was detained for close to a week.

After hearing from both Chimène and her sister Georgette who witnessed her arrest, at trial the military judge pronounced a non-guilty verdict for Chimène. Angelo was not so fortunate; he was found guilty of 'rebellion".  He will be sentenced later.

A major ruling in Uganda

On November 8, 2018, the Court of Appeal of Uganda handed down the unanimous decision in Ogwang v. Uganda, Crim. App. No. 107 of 2013 [2018] UGCA 82 (Uganda Ct. App. 2018). The accused, an Army junior officer, had been convicted in 2010 by a court-martial of murder and robbery as service offenses (i.e., offenses under civilian law that may be tried in a military court). The Court of Appeal overturned the 2013 judgment of the Court Martial Appeal Court on the ground that one of the members of the court-martial panel had participated in the investigation and the accused's arrest, and had been replaced by another member in mid-trial. The Court of Appeal indicated that it would ordinarily have sent the matter back for retrial before a court-martial, but instead referred it for civilian prosecution on the ground that the court-martial lacks independence. According to the decision:

37. . . . The judges of an independent court cannot be under the administrative control of the authority that brings the charges. In order to secure the independence of the courts the courts are placed under a different arm of the state known as the Judiciary with security of tenure and insulation from control of the Executive which originates criminal charges with the exception of private prosecutions which are brought by private individuals.

38. Military Courts, appointed by the High Command, are basically organs of the Army intended to ensure operational efficiency and discipline of officers and militants of the Uganda Peoples Defence Forces. That is the purpose and thrust of military justice. For that reason service offences are created under the Uganda Peoples Defence Forces Act under Part VI of the Act over which Military Courts exercise jurisdiction.

The court held that the effect is to profoundly (and unconstitutionally) transform courts-martial from courts of limited jurisdiction to courts of general jurisdiction. "The military courts are not independent of the Executive. They belong to the Executive." The court also pointed out that the absence of any guidance as to which court system -- military or civilian -- would try civil offenses as to which there is concurrent jurisdiction impermissibly opens the door to arbitrary decision making.

The decision, which is subject to further appellate review, is pertinent to court-martial subject matter jurisdiction issues that are currently pending in Canada.