Hague district court rules on deaths of 1977 train hijackers

This week, the District Court of The Hague, the Netherlands, issued its judgment on the claim for damages of relatives of two South Moluccan youngsters, Max Papilaja and Hansina Ukolseja, who had been killed in 1977 by Dutch Marines in an operation to end the train hijacking at De Punt. The relatives, represented by attorney Liesbeth Zegveld, claimed that both hijackers had been killed as a result of a secret order ‘not to take prisoners’ and while hors de combat. The judgment (in Dutch) in A & B v. State of The Netherlands can be found here.

On May 27, 1977, a group of nine young armed South Moluccans hijacked a train close to De Punt, a tiny village in the North East of the Netherlands. Eventually, 54 of the 94 passengers were taken as hostages. At the same time, another group occupied a primary school in the nearby town of Bovensmilde; 5 teachers and 108 pupils were taken hostage. The motives of the hijackers were rooted in Dutch colonial history in Indonesia, formerly the “Dutch East Indies”. A brief synopsis: In the ‘40s of the previous century, Moluccan NCO’s and soldiers formed the backbone of the “Royal Netherlands East Indies Army”, or ‘KNIL’ in the Dutch abbreviation. In 1945, after the Japanese capitulation, the KNIL was instrumental in trying to regain control over the colonial possessions and therefore combating those who fought for independence. When the Republic of Indonesia eventually declared independence on December 28, 1949, Moluccan activists subsequently declared the independence of the Republik Maluku Selatan (RMS -- Republic of the South Moluccan Islands) on April 25, 1950. The Dutch Government did not wish to alienate itself from the new Republic of Indonesia and did not recognize the RMS. Since it was legally not allowed to demobilize the remaining KNIL-NCO’s and soldiers while on Indonesian soil, the Dutch Government saw no other option than shipping the approximately 3.600 remaining military personnel and 8.000 relatives to the Netherlands, in the first half of the year 1950. Military personnel was demobilized on arrival and the whole population was initially housed in old barracks, cloisters and former WWII internment camps. Integration into Dutch society was a slow process. When the Dutch Government subsequently refused to lend political or other support to the ideal of creating the Republik Maluku Selatan, Moluccan anger towards Indonesia slowly but surely transformed into anger towards the Netherlands Government.

In 1977, the ‘second generation’ Moluccan hijackers demanded an active stance of the Dutch Government towards the RMS and threatened to detonate explosives in the train if their demands were not met; at a later stage they demanded an airplane to leave the country, together with fellow South Moluccans who had been imprisoned for comparable earlier actions.

On June 11, the Dutch Government decided to end the hijacking. In accordance with Dutch law at the time – in essence, the same framework still applies today -- military units had been ordered to support the civil authorities. After extensive reconnaissance the operation started in the early hours with Starfighter airplanes simulating a bomb raid and sharpshooters trying to deter the hijackers from aiming at the Marine detachment, approaching the train. The Marines entered the train and liberated the hostages. Three hijackers were captured, six were killed. Two passengers accidentally lost their lives in the operation, the remainder was unharmed. The school was also liberated by the military, without loss of life.

Returning to this week’s judgment, the court dismissed the claim of the ‘secret instruction’ not to take prisoners, by concluding that this claim had not been sufficiently substantiated. Several de auditu statements that such an instruction had indeed existed were convincingly denied by the Marines involved. As to the deaths of the two hijackers, the court concluded – after a very detailed analysis of the precise circumstances – that the two had indeed been hors de combat as a result of the initial barrage by the sharpshooters, at the moment the Marines entered the train and had fired at the location of the two.

Ms. Ukolseja was subsequently killed by one of the Marines in the train. In the case of Mr. Papilaja it could not be assessed with sufficient certainty whether the bullet fired by a Marine in the train had indeed been the fatal one, or that he had been dead already. The court nevertheless investigated in both cases whether the Marines who fired the rounds could have had a realistic conviction that the hijackers did form a real threat, which necessitated the use of deadly force. In this respect, the The court applied the "honest belief" test, as "refined" by the European Court for Human Rights in Armani da Silva v. United Kingdom (Mar. 30, 2016).

In Armani da Silva the ECHR ruled:

“The use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived for good reasons to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. … [T]he existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that as it is detached from the events at issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events... Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself in the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force. … Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. … [T]he principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time.” (¶¶ 244–48.)

Using these ECHR-parameters, taking into account that the hijackers were known to be armed and given the situation of lack of overview and limited sight, the the Hague Court concluded that in both instances, the Marines who fired at the hijackers could indeed have had the ‘honest belief’, ‘in the heat of the moment’, that the use of deadly force was necessary at the time, although – at least in the case of Ms. Ukolseja -- this belief turned out to be mistaken. All of the plaintiffs' claims were rejected.

Ms. Zegveld has already announced that the relatives of both deceased hijackers will appeal the judgment, therefore: to be continued.

Armed forces, power, and courts

Profs. Brett J. Kyle (University of Nebraska--Omaha) and Andrew G. Reiter (Mount Holyoke) have written this important and timely essay on the militarization of justice in Latin America. They observe: "Given how repressive military courts were and how long and difficult it was for civilian reformers to finally rein them in, the re-empowerment of these courts is a frightening development. It has the potential to roll back decades of human rights law and judicial reform." A highly recommended read.

Speaking of Egypt

The pen is mightier than the sword -- or is it? Consider this report from Egypt:

A military court sentenced six actors to suspended two-month imprisonment on Wednesday, over accusations of insulting the Armed Forces in a play named “Suleiman Khater”, to be released within days after spending four months in prison.

The six defendants include playwright and director of the play, who were accused of insulting the Armed Forces, using military uniform without permission, and showcasing a play without the approval of the censorship authority.

Playwright Waleed Atef and director Ahmed El-Garhy were arrested in March were arrested following their show at Giza’s Shooting Club, over a report filed by lawyer Samir Sabri, who accused them of mocking the Egyptian army’s role in fighting state’s enemies.

Since the play concerns the Armed Forces, the artists were referred to the military tribunal for prosecution.

Oh, that explains it. 

Post-Morsi immunity for Egyptian senior officers

ABC News reports on an immunity law that benefits Egyptian senior officers:

Egypt's President Abdel-Fattah el-Sissi on Thursday ratified a bill that could immunize senior military officers from future prosecution related to violence after the 2013 military overthrow of an elected but divisive Islamist president.

The law, published in the official gazette Thursday, grants senior military officers selected by el-Sissi rewards including immunity from investigation for alleged offenses after the suspension of Egypt's former constitution in July 3, 2013 until parliament assumed its duties on Jan. 10, 2016.

Former president Mohammed Morsi was ousted on July 3, 2013.

Any legal action against the selected officers requires permission from the Supreme Council of the Armed Forces under the new law. They are also privileged with "special immunities" like those granted to diplomats.

So much for accountability.

Brig. Gen. Cooke named director of Federal Judicial Center

Brig. Gen. John S. Cooke,
U.S. Army (Ret)

One of the Army JAG Corps' brightest lights, Brig. Gen. (Ret) John S. Cooke, has been named director of the Federal Judicial Center. While on active duty he made important contributions to the improvement of military justice, including helping focus attention on the question of providing fixed terms of office for military judges (a reform Congress finally got around to making a statutory requirement in the Military Justice Act of 2016). Congratulations! 

Here's the official announcement:

Chief Justice John G. Roberts, Jr., announced today that the Board of the Federal Judicial Center has selected Deputy Director John S. Cooke to be the eleventh director of the Federal Judicial Center. 

Chief Justice Roberts, who chairs the Board of the Federal Judicial Center, stated, "The Board selected John Cooke from a number of exemplary candidates. John has won extensive praise over the past 13 years as deputy director of the Center. He has strong leadership skills and unparalleled knowledge of the Center’s programs. The Board is confident that Deputy Director Cooke will be a worthy successor to Judge Jeremy Fogel, whom I thank for his seven years of dedicated service as the Center’s director." Judge Fogel will complete his service as director in September 2018, and he has accepted the position of Executive Director, Berkeley Judicial Institute, University of California School of Law. 

Upon being notified of his selection, Deputy Director Cooke said, "I am humbled and deeply honored, and I am excited about this opportunity to serve." He expects to undertake his new responsibilities in September 2018. 

John Cooke joined the Federal Judicial Center in 1998 as its director of judicial education programs, and he later headed the Center’s Education Division. The Board selected Mr. Cooke as Deputy Director in 2005. Before his 20-year career at the Center, Mr. Cooke was a commissioned officer in the United States Judge Advocate General’s Corps, achieving the rank of brigadier general. In the course of his military career, he served as the Chief Judge of the U.S. Army Court of Criminal Appeals, the Judge Advocate for the U.S. Army in Europe, Academic Director of the Judge Advocate General’s School, and as a military trial judge. Mr. Cooke received a B.A. degree from Carleton College, a J.D. from the University of Southern California, and an LL.M degree from the University of Virginia. 

The Federal Judicial Center (www.fjc.gov) was created by Congress in 1967 to "further the development and adoption of improved judicial administration in the courts," through research and education. The Center is headquartered in the Thurgood Marshall Federal Judiciary Building in Washington, DC. 

Last year, the Federal Judicial Center completed 14 major research projects and provided 314 in-person, in-court, and technology-based educational programs for some 27,000 federal judges and court employees. The Center's research focuses on federal court processes and operations. Its educational programs include orientation and continuing education for judges on subjects ranging from substantive developments in the law to case management.

Should Australia foot the bill?

Profs. Tim Mathews and John Eldridge explore here for The Conversation the current issue of whether Australia should pay damages to civilian victims of unlawful SAS killings in Afghanistan. They argue: "Given the limited accountability for military decision-making in the public sphere, the possibility of accountability in a civil court would promote stricter adherence to international conventions on war."

Brig. Gen. Spijk joins our contributors

Brig. Gen. (Ret) Jan Peter Spijk

Global Military Justice Reform heartily welcomes Brig. Gen. (Ret) Jan Peter Spijk as our newest contributor. In addition to having a stellar career in the Royal Netherlands Army, Gen. Spijk served until recently as President of the International Society for Military Law and the Law of War. Welcome aboard!

International military justice exchanges -- China/Angola

Military justice officials from China and Angola are comparing notes this week, according to this report. Excerpt:

Delegations from the Angolan Military Courts and of the People's Liberation Army of China began Monday in Luanda exchanges of experiences in the field of the judicial organs, within the framework of existing bilateral cooperation. 

The Chinese delegation is led by the chairman of the Chinese People's Liberation Army's Military Court, Liu Ligen, accompanied by magistrates of the Chinese Supreme Court started Monday an official visit to Angola.

The Angolan delegation is headed by the presiding judge of the Supreme Military Court, general António dos Santos Neto "Patónio".

Judge Patónio informed that his institution is committed to the creation of Laws concerning the military Careers including junior officers and in the elaboration of others that aim at the organic protection of the Supreme Military Court and the Statute of Magistrates, with a view to their safeguard and future existence.

The meeting also served to present the Chinese delegation, the historical evolution of the Angolan military body, since the creation of the 1st Angolan Military Supreme Court in 1975, formerly designated by the Commission of Justice that had the mission to instruct, indict and prosecute crimes.

Supreme Court of India reemphasizes independence of various limbs of disciplinary processes

In an important decision reiterating the independence of all limbs of inquiry and disciplinary proceedings in government services, especially uniformed ones, the Supreme Court of India has ruled that the Inquiry Officer cannot be a part of the prosecution set-up of the establishment and that he or she also needs to act independently and not as a representative of the system out to declare the person guilty.

The Supreme Court was dealing with the case of a paramilitary trooper whose dismissal had been set aside by the High Court and who was directed to be reinstated in service. The Union of India had challenged the judgment of the High Court in the Supreme Court.

The Supreme Court has observed that such officers need to act “fairly and impartially” in disciplinary proceedings.

A detailed report on the case is available with The Tribune.

UN peacekeepers

Kate Brannen writes here for Just Security about the discipline problem with UN peacekeepers and a Frontline documentary that will air tonight. Excerpt:

In the last decade, the UN has tried to curb the problem, investigating allegations, increasing training, stepping up oversight and trying to educate the public on how to report sexual violence. But the problem cannot be fixed until there is criminal accountability for the perpetrators, and there, the UN has zero control. Instead, it’s up to UN member states to hold their own soldiers accountable, and so far, countries have done very little to do so.

“The reality is today there is no guarantee of criminal accountability for someone who commits rape inside a UN peacekeeping mission, despite a lot of effort by a lot of people and a strong commitment by the top reaches of the UN,” says Anthony Banbury, who served as UN assistant secretary-general for field support.

Poe Dameron court-martialed in San Diego

Bryan Young reports here on the court-martial of Poe Dameron. Excerpt:

Oh... and the verdict? They found Poe not guilty of Conduct Unbecoming of an Officer, but they did find him guilty on the other two charges. The judge didn't think the universe was safe with Poe's recklessness in it, so he sentenced him to ten years... At  Rura Penthe...

FBA to honor Judge Effron

Senior Judge Andrew S. Effron
U.S. Court of Appeals
for the Armed Forces

The Federal Bar Association's D.C. Chapter will honor Senior Judge Andrew S. Effron of the U.S. Court of Appeals for the Armed Forces. At 4:00 p.m., on September 7, 2018, Judge Effron will receive the Justice Tom C. Clark Outstanding Government Lawyer Award in a ceremony to be presided over by Senior Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia. Congratulations, Judge Effron!

The (slow) march of time in Indian military justice

We learn from this Tribune News Service account of a decision of India's Armed Forces Tribunal mitigating the sentence in the court-martial of an army captain. The accused was the first woman officer tried for professional dereliction. Here's the disturbing part: the general court-martial occurred in 2009, and it has taken until now -- nine years later -- for the AFT to complete its review of her appeal. The judgment in Kaur v. Union of India seems not to be on the AFT's website yet.

Speech(es) on military justice in New Zealand's Parliament

The Military Justice Legislation Amendment Bill recently passed its second reading in New Zealand's Parliament.  It is scheduled to be considered by the Committee of the Whole House - the penultimate stage in the House - this week.  The parliamentary website describes the purpose of the Bill as being "to update the military justice system and to align it with the criminal justice system by enhancing victims’ rights, amending the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953".  More detail on the Bill and the parliamentary process followed to date can be found here.  There were a number of interesting speeches on the second reading, however the speech of backbench Government MP, Dr Duncan Webb MP (a lawyer and member of Parliament's Foreign Affairs, Defence and Trade committee) may be of wider interest to the readers of this blog.  You can watch the speech here.

Resilient corruption

Global Military Justice Reform contributor Wing Commander (Ret) UC Jha writes here for Daily News & Analysis on resilient corruption in the Indian Army. Excerpt:

Not known to many even in the military, the Regulations for the Army contain an important provision on reporting corruption. Paragraph 317 of the Regulations provides, “It is the obligatory duty of every person in military employ to bring at once to the notice of his immediate superior, or the next superior where the immediate superior officer is involved, any case of dishonesty, fraud or infringement of orders that may come to his knowledge.” However, despite this obligation, very few corrupt and illegal practices are reported because Section 52(a) of the Army Act acts as a deterrent. It states that any military person who makes a false accusation against anyone subject to the Act, shall be court-martialed and awarded a punishment of up to five years’ imprisonment. Even if the military takes up investigation of an allegation of corruption, the court is assembled by the commanding officer and his trusted subordinates. Careerism and personal gain usually prompt inquiry officers to give reports that suit the commander. In the end, it is the person who reports a case of corruption who faces the wrath of the military hierarchy.

Detention without charges in Uganda

A Ugandan general is being held without charges. The government's spokesman claims he was unaware of a public interest case filed on the general's behalf in the High Court. Details here.

[Attorney] Deusdedit Bwengye has filed a public interest application in the high court of Uganda seeking court summons for the Chief of Defense Forces (CDF), the Commanding Officer in charge Makindye Military Barracks, Attorney General and Director of Public Prosecution to show cause as to why [Gen. Kale] Kayihura should not be produced to court or released on bond.

Gen Kale Kayihura was arrested on June 13, and has since been detained at Makindye Military Barracks for over a month now. The army confirmed the former IGP [Inspector General of Police] was airlifted from his farm home in Kashagama, Lyantonde district to Defence General Headquarters Mbuya and eventually detained at Makindye. It was also confirmed that the former Police boss was being held for questioning over a matter which could not be readily divulged. Gen Kayihura's cause of arrest has remained a mystery to date.

Airlifted? 

Why is this case being tried in a military court?

Russia's Moscow Garrison Military Court is trying a retired Ministry of Internal Affairs general officer for extortion. Why not a civilian court? Details here, from CrimeRussia. Excerpt:

Police Major-General Viktor Trutnev left law enforcement agencies seven years ago. He was appointed Head of the Moscow Criminal Intelligence in 2001. Two years later, he was appointed Head of the Department of Internal Affairs of the North-Eastern Administrative District of Moscow. After being transferred to the Department of Internal Affairs of the Northern Administrative District in 2011, Trutnev had to retire after several months. The reason for it was a scandalous incident when Head of the Ministry of Internal Affairs, Rashid Nurgaliev, visited the Academy of the Interior Ministry located on the territory of the Northern Administrative District of Moscow. When approaching the Academy, the honored guest saw a rude inscription on the ground that said ‘Nurgaliev is a ***hole.’ After that, Trutnev was hospitalized with a heart attack, and a few months later, Dmitry Medvedev signed a decree on his resignation.

Military justice in Uganda

The Observer reports here on military justice as applied to senior officers in the Uganda People's Defense Force. Excerpt:

Dr David Mushabe, a senior litigator of civil and military law who was retained by [Gen. David] Sejusa, told The Observer that the nature of the army court means it can operate at the whims of the commander-in-chief who appoints its heads.

“The manner in which the court is structured, both legally and in practice, it is not possible for any person who is not in the good books of the commander-in-chief to get justice in the military courts until they petition for the intervention of the civil courts,” he said.

Mushabe, who is handling several cases before the military court, makes reference to his experience while handling former spy chief, Sejusa’s cases.

“I am not surprised that [Gen. Kale Kayihura] has not been charged. It is only those who don’t know what happens there that are shocked,” he said.

“All the people who preside over the court are appointed by the commander-in-chief and they are serving officers of the military who by military practice are expected to obey his commands….So, if you are someone like Gen Kayihura, who has rubbed him the wrong way, you are likely to face a team that acts on his [the president’s] orders and directives. This is what I have experienced while handling Gen Sejusa’s case.”

“I am the witness. While handling the Sejusa case, you would submit to the panel about any act that contravenes the law, but they will just say the law is the law, and it not the practice of the court,” he said.

Uganda also regularly tries civilians in its general court-martial, contrary to human rights standards. 

Transparency watch: the Kafr Qasem record of trial hearing

The Israeli Military Court of Appeals is conducting a proceeding to determine whether the record of trial of border policemen prosecuted as a result of a 1956 massacre should be opened to the public. Haaretz's Ofer Aderet has the story here. Excerpt:

In hearings behind closed doors over the past few months, numerous government officials, including the Foreign Ministry, the military censor, the state archivist and the army archivist gave testimony. The military prosecutor is opposed to making the information public. The main reasons were given behind closed doors, but the general grounds were stated as follows: “At this time, any additional revelation of the minutes from the Kafr Qasem trial, beyond those that the public can already examine, will harm the security of the state, its foreign relations, and in certain cases will certainly compromise people’s privacy and well-being, precluding release of the material from a legal standpoint.”

More time requested for amended draft law in Israel

The Israeli Supreme Court has been asked to allow the government another seven months to get its act together on new legislation on the conscription of ultra-Orthodox students. Haaretz has the story here. Excerpt:

“The induction of yeshiva students is one of the most complicated and sensitive issues facing Israeli society” says the petition. “This matter involves questions of identity, culture, economics, society and religion, questions which the court ruled had better be resolved by consent, as far as possible. Amending of the law is required in order to reach a balance between various interests and clashing objectives.”

Death row SITREP

Dwight Sullivan

Dwight Sullivan sends the following --

“The more things change, the more they stay the same” is a common cliché. Even its French origin – “Plus ça change – plus ç’est la même chose” – is comfortably familiar. Less well known is its source. The phrase’s author was Alphonse Karr, a French journalist and novelist. The epigram appeared at the end of a short item in the January 1849 issue of his monthly periodical, Les Guêpes (The Wasps). ALPHONSE KARR, LES GUÊPES. SÉRIE 6 (ED. 1867-74) at 305. The essay that preceded it argued in favor of capital punishment. Id. at 304-05. That placement seems appropriate for a discussion of the state of the military death penalty. There have been some significant recent developments. Yet the more things change, the more they stay the same.

Starting with Gary Gilmore’s death-by-firing-squad on January 17, 1977, 34 states and the federal government have carried out 1477 post-Furman executions. Yet, despite court-martial panels adjudging 17 death sentences since President Reagan promulgated the U.S. military’s post-Furman death penalty system on January 24, 1984, the military has carried out none. Fifty-seven years have passed since the last military execution.

Today there are four inmates confined in a pod in the U.S. Disciplinary Barracks’ special housing unit that is military death row: Ronald Gray, Hasan Akbar, Timothy Hennis, and Nidal Hasan. All were convicted by an Army court-martial of at least two premeditated murders. The man who has been there the longest, Gray, was sentenced to death on April 12, 1988 for a series of murders and rapes in the Fort Bragg area. On July 28, 2008, President George W. Bush approved his death sentence – the first time a President approved a military death sentence since the Eisenhower administration. Almost a decade later, on June 28, 2018, the Supreme Court denied certiorari in Gray’s case, declining to review the U.S. Court of Appeals for the Armed Forces’ dismissal with prejudice of his writ-appeal. United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam), cert. denied, 86 U.S.L.W. 3650 (June 28, 2018). Gray will presumably now return to the U.S. District Court for the District of Kansas to resume his collateral attack on his death sentence.

The news on June 28, 2018 was considerably better for another military death row inmate, Timothy Hennis, whose death penalty case is currently being briefed at CAAF. In Gamble v. United States, the petitioner was first convicted in Alabama state court of being a felon in possession of a firearm. For that and marijuana possession, he was sentenced to confinement for a year. Gamble was then tried in U.S. district court for being a felon in possession of a firearm arising from the same incident that led to his state conviction. After unsuccessfully arguing that his conviction in federal court was barred by the Fifth Amendment’s double jeopardy clause, Gamble was sentenced to 46 months’ imprisonment, three years of supervised release, and a $100 assessment. On the same day that it denied certiorari in Gray’s case, the Supreme Court granted certiorari in Gamble’s to answer this question: “Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.” Gamble v. United States, 86 U.S.L.W. 3650 (No. 17-646). If Gamble prevails, Hennis will be an even bigger winner. In 1989 – after having previously been convicted and sentenced to death in North Carolina state court only to have that death sentence overturned on appeal – Hennis was acquitted of three murders and rape in a second state trial. Under the separate sovereigns doctrine, he was convicted by a court-martial of those same crimes and sentenced to death in 2010. If the Supreme Court invalidates the separate sovereigns doctrine in Gamble, military death row’s population will likely decrease by one.

On Friday, July 6, 2018, an Air Force court-martial panel in Kansas declined to increase military death row’s population by one. The panel resentenced Andrew Witt to confinement for life without eligibility for parole for two murders and one attempted murder committed in 2004, his previous death sentence for those offenses having been reversed by CAAF. United States v. Witt, 75 M.J. 380 (C.A.A.F. 2016). Witt was the 13th service member under the current military justice system to have his death sentence set aside by one means or another. None has had his death sentence reimposed. Witt was the third to face an actual capital resentencing proceeding. Like Todd Dock and Wade Walker before him, he received a non-capital sentence at his retrial.

The Military Justice Act of 2016 will change the military death penalty system in several important ways. Effective January 1, 2019, it will eliminate the convening authority’s power to commute a death sentence – a power that survived Congress’s 2013 limitations on convening authorities’ clemency powers. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66, div. A, title XVII, § 1702(b), 127 Stat. 955 (2013). Of the 17 adjudged death sentences in the current system, two were commuted by convening authorities – though the more recent of those two commutations occurred in 1990. An accused will be allowed to enter a guilty plea to a capitally referred charge. The number of members in a capital court-martial panel will be fixed at 12, rather than 12 being the minimum. And a learned defense counsel requirement – subject to an impracticability exception – will apply at both the trial and appellate levels.

Yet despite those reforms, the military justice system remains for now what it has been for decades: a death penalty jurisdiction in theory but not execution. Plus ça change. . . .

[Disclaimer and Disclosure: The views presented are those of the author and do not necessarily represent the views of DoD or its components; they are made in the author’s personal capacity and should not be imputed to anyone else. The author has served as an appellate defense counsel in four military capital cases, including the Witt and Walker cases mentioned in this post.]

Unintended consequences?

In an earlier post, Global Military Justice Reform contributor Phil Cave called attention to Army Major Dan Maurer's Lawfare post about the Supreme Court's decision in Ortiz v. United States. If you missed it, you should read the whole Maurer article, which of course reflects only his views, not those of the Army or its JAG Corps. Here's the conclusion:

. . .  We may take the recent, dramatic changes to the UCMJ by the Military Justice Act of 2016 as further “civilianization” of military law and circumstantial evidence that the circumstances once justifying the ancient lineage of the commander’s judicial power are slowly waning.

If the court is serious that commanders do not play a necessary function in making this system “judicial” in character, and that commanders’ valid reasons for good order and discipline are of a secondary consideration, then arguably there is no practical or philosophically sound reason for keeping commanders in the military justice decision loop at all, replacing them with either judge advocates or civilian criminal justice institutions. Ordering searches and seizures, compelling pretrial confinement, preferring and referring charges, convening courts-martial, and selecting panel members are now on the table as potential areas in which commanders should see their discretionary power (their “command decision” authority over legal matters) ebb, if we take the court’s meaning to its natural conclusion.

Even though this is not the holding of the case or a rule that rings with precedential value, the Ortiz argument surely does give opponents of the current structure a good argument for changing it, and should cause us to question whether Parker remains authoritative on the meaning and purpose of military law. And as [Prof. Stephen I.] Vladeck’s essay suggested, Ortiz may be a “harbinger of increased interest in military justice by the Justices themselves.” (Not an unwelcome development, given the range of ways in which the Constitution is said, by the CAAF, to apply differently to this separate “community.”) These are the unintended consequences of the court’s defense of its jurisdiction over the CAAF and was a missed opportunity for [Justice Samuel] Alito and [Prof. Aditya] Bamzai to remind the court of its own entrenched characterization of military criminal law.

It would be wrong to describe this as a case of "burning the village in order to save it," since at issue was not the validity of the military justice system, but simply the constitutionality of direct appellate review of decisions of the U.S. Court of Appeals for the Armed Forces. Still, there are implications for commander-centric military justice. Hats off to Major Maurer for calling attention to them.

MAG gets 2d star

Maj. Gen. Sharon Afek
Military Advocate General

The Israeli Military Advocate General, Sharon Afek, has been promoted to Major General. He is the first openly gay member of the IDF General Staff. Details here concerning the IDF's shifting policy on MAG rank.

Are military courts courts?

Followers of U.S. military justice may now be familiar with the recent U.S. Supreme Court decision in Ortiz v. United States.

This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge’s holding of dual offices violated a statute regulating military service, as well as the Constitution’s Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected those claims, and we granted a petition for certiorari. We hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III court. We then affirm the CAAF’s determination that the judge’s simultaneous service was lawful.

For most of us the jurisdiction of the Supreme Court to hear appeals from the Court of Appeals for the Armed Forces seemed firmly entrenched--don't worry--it is.  But an amicus pleading seriously questioned that jurisdiction.

Here is one of several pithy pieces on the issue from Dan Maurer, Are Military Courts Really Just Like Civilian Courts? Published on Lawfare.

[Blog post that defies suitable headline]

Ex-USN sailor Kristian Saucier, having been pardoned by President Donald Trump, has filed a lawsuit against former President Barack Obama and former FBI Director James Comey in federal district court in Albany, NY. He claims he was treated more harshly than former Secretary of State Hillary Rodham Clinton when he was convicted of a security violation. He's proceeding pro se because the New York Supreme Court Appellate Division just suspended his attorney.

Honk if you think this is a frivolous lawsuit.

Guessing games in Uganda

A piece of military justice kabuki theatre is slowing playing out in Uganda. This article gives the available evidence, such as it is. Excerpt:

Lawyers quiet 

So, despite engaging Kampala Associated Advocates, one of the most highly regarded law firms in the country, no application has been filed in court to compel the State to produce Gen [Kale] Kayihura in court or release him.

Gen Kayihura was arrested together with some of the individuals he closely worked with during the time he was in charge of the police Force, including former Flying Squad Unit commander Herbert Muhangi.

All the individuals who were arrested around the same time with Gen Kayihura have until now kept quiet in custody, except Col Ndahura Atwooki, formerly in charge of crime intelligence in the police, whose wife filed a habeas corpus application and got a ruling in her favour for her husband to be charged in a court of law or be released.
Col Ndahura was on June 29 charged in a closed session of a military disciplinary unit at the army headquarters in Mbuya, Kampala, a session from which we have since heard conflicting accounts.

The Attorney General has since told the High Court that Col Ndahura pleaded guilty to the charges of “interfering with the process of law” that were brought against him and is awaiting sentencing, something Col Ndahura’s lawyers have disputed. The session was closed even to Col Ndahura’s lawyers and it is said that he refused to say anything in court in the absence of his lawyers. 

Sources familiar with what is going on say Gen Kayihura’s plan is to let things play out and not be seen to push President [Yoweri] Museveni’s hand the same way Col Ndahura did, for instance.

In reality, then, it turns into a game of President Museveni and his former trusted lieutenant sitting still, each poring over his cards and waiting for who will blink first.

Courts by rebel forces: legality, legitimacy, utility

Stockholm University Professor Mark Klamberg

Stockholm University's Mark Klamberg has a fascinating and important new article in the Journal of International Criminal Justice, now available in the public commons without paywalls. [see bottom of post for an update on how to access the article]. "The Legality of Rebel Courts during Non-International Armed Conflicts" is especially notable for two reasons. First, it ably surveys the legal status of rebel courts under international criminal law, international humanitarian law, international human rights law, and public policy rationales. Second, it describes the recent Swedish criminal trial of former Syrian rebel Haisam Sakhanh for executing captured Syrian soldiers in accordance with the decree of a Syrian rebel pseudo-judicial council. Did Sakanh commit murder or properly carry out a sentence?

Rebel courts are surprisingly understudied considering how frequently they have been employed. Professor Klamberg notes some recent examples:

During the Algerian war of independence, from 1954 until 1962, the L’Armée de libération nationale (ALN) stated that prisoners were only executed after having been tried and found guilty of violating the laws and customs of war. The ALN was later transformed into the regular army of Algeria. Throughout the Chinese civil war, from 1927 until 1936, and again, 1946 until 1950, the Chinese Communist Party, which later became the ruling party of China, issued instructions that ‘notorious criminals shall be executed by shooting after being tried and convicted by court’. Other instances of rebel courts include: the National Democratic Front of the Philippines peoples’ courts during the ongoing rebellion in the Philippines, which started in 1969; Free Aceh Movement village councils, called majelis, during the insurgency in Aceh, Indonesia, from 1976 until 2005; the Revolutionary United Front (RUF) peoples’ courts during the armed conflict in Sierra Leone, from 1991 until 2002; the Farabundo Martí National Liberation Front (FMNL) courts during the armed conflict in El Salvador from 1980 until 1991; Communist Party of Nepal (Maoist Centre) courts during the armed conflict in Nepal from 1996 until 2006; and finally, Liberation Tigers of Tamil Eelam (LTTE) courts during the conflict in Sri Lanka from 1983 until 2009.

Legal developments and the passage of time have bolstered arguments for the legality and legitimacy of rebel courts. Common Article 3(1)(d) of the Geneva Conventions prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." This is a tough standard for rebels to meet, whose insurrection stands against much, if not all, that is regularly constituted within an existing government. In 1977, Article 6 of Additional Protocol II replaced the requirement for a "regularly constituted court," instead requiring a court "offering the essential guarantees of independence and impartiality." This standard is far more attainable for rebel forces to achieve.

Haisam Sakanh fighting with rebel forces in Syria, ca. 2012

The most interesting part of the paper is the story of Haisam Sakanh's 2017 Swedish criminal trial and appeal. Professor Klamberg, who also testified as an international law expert, recounts the facts:

When the so-called ‘Arab Spring’ erupted during 2011 Haisam Sakhanh was residing in Italy, where he had lived since 1999. On 30 April 2012, Sakhanh travelled to Syria. He joined the rebel group called ‘Suleiman’s Company’ (Firqat Suleiman el-muqatila), which was mainly active in the Djebel el-zawia region in Idlib and Hama provinces, both rebel strongholds at that time. In early May 2012 (4 or 5 May), Suleiman’s Company carried out an attack, together with another rebel group — Ahrar Alshamal Sermin Battalion — and captured soldiers of the Government of Syria. The captured soldiers were eventually moved to a place close to Kafar Kila. It was captured on film that members of Suleiman’s company, including Sakhanh, and Ahrar Alshamal Sermin Battalion, were standing next to the prisoners, who were then executed by members of Suleiman’s Company. The corpses were thrown into pits. The prosecutor claimed that the executions took place on 6 May 2012, while Sakhanh stated they occurred on 7 May 2012. On 18 June 2013, Sakhanh travelled to Sweden where he applied for asylum. On 5 September 2013, the — partially edited — film of the incident was published on the New York Times website. The film was also later shown at the trial in Stockholm District Court. Sakhanh was granted residence and refugee status in Sweden on 17 October 2013. Shortly thereafter, however, the Swedish police received information about the alleged crimes.

The Swedish penal code prohibits murder and crimes against international law, and incorporates norms of international humanitarian law. At trial and on appeal, the facts were not in dispute. At the heart of the legal controversy was Sakanh's assertion that he carried out a death sentence issued by a proper court as required by international humanitarian law, and was thus not criminally responsible for his acts.

During trial, Sakhanh stated that a military council had decided that the captured soldiers should be detained. A Legal Council had been constituted. The Council consisted of judges whom had previously served the Government of Syria, but had defected to the rebel group, called the Free Syrian Army. Three judges from the Council took part in the trial. Military as well as civilian witnesses testified. The trial was conducted from 5 until 6 May 2012. Although he was not present during the trial, Sakhanh heard about the charges made against the captured soldiers. It was well known that the Military Unit, under which the captured soldiers had served, committed grave crimes, such as rape and murder of civilians, which warrant the death penalty in Syria. From Sheikh Abo Suleiman, he was informed on 7 May 2012 that the captured soldiers had been sentenced to death and he carried out that sentence.

The District Court convicted Sakanh, and the Svea Court of Appeals upheld the conviction. The decision focused on the facts of how the rebel court was constituted and conducted, an inquiry that eroded Sakanh's claim that the system he acted within met fundamental judicial standards. To wit: 

[T]he District Court found that Suleiman’s Company was not part of the Free Syrian Army, rather it represented an Islamic and nationalist group. There were reasons to doubt that rebels in Idlib had sufficient control over the territory and population, which is a precondition for having the ability to establish courts. There were also serious flaws in terms of judicial guarantees. The so-called courts in the rebel-controlled territory were composed of a mix of imams and judges who had defected from the Government. These judges applied a mix of Islamic and Syrian law, depending on which rebel group had established the court. In this quasi-judicial system, mere fighting on the opposing side, in this case the Government, was punishable by death. There was no right to defence counsel for the accused. The possibility for the accused to mount their defence and to appeal was not granted. There was strong evidence that torture was used during questioning. The Court found that the procedures resembling trials did not meet basic fair trial guarantees. During the investigation phase, Sakhanh had explained to the police that the captured soldiers deserved to die because they had shot at rebel groups and the Free Syria Army. In other words, the captured soldiers were executed only on the basis of being combatants. Sakhanh also stated that he did not believe that captured soldiers should have defence counsel, as ‘they did not deserve that’. Considering these elements, the District Court held that Sakhanh had committed ‘grave breaches of the Geneva conventions’ by executing the captured soldiers. Based on the evidence, the Court found that it took only 41 hours from the time of capture of the soldiers until their execution. The rebel group published a film showing the incident on social media, namely, Youtube and Facebook, during which the word ‘revenge’ was used.

Congratulations to Professor Klamberg on this excellent work which should prod further discussion and scholarship.

* [14 July postscript]: The link to the article is now behind an OUP firewall. An alert reader pointed out that a similar article from the author entitled “Possibility of a Non-State Actor to Establish Courts, Issue Sentence and Avoid Criminal Responsibility for Acts that Otherwise Would Constitute War Crimes" is available on SSRN. 

Why were these women arraigned in military court?

There's a nasty story out of Lebanon, reported here. Whatever else was going on, one does wonder why the two Kenyan women involved in a fracas and beaten up by a crowd were arraigned in a military court? Excerpt:

In a statement, Lebanese military said the two Kenyan women were to blame for the incident as they were the first to attack the soldier.

“The two women who were drunk assaulted an army member who was with his wife, and hit him with a bottle on his head,” the statement said. “This prompted one of the civilians [present at the scene] to interfere and hit the two women.” the Army said in a statement quoted by Daily Star.

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

Uganda High Court allows court-martial of former MP

A justice of the High Court of Uganda has refused to block the court-martial of a civilian (a former MP). Details here. Excerpt:

. . . Justice Musa Sekaana dismissed the petition on grounds that the orders which were sought in the application were wrongly placed and lacked merit.

Justice Sekaana noted that although the challenge was aimed at the Director of Public Prosecutions, the evidence presented before the court by State Attorney Sylvia Cheptoris indicates that the trial was facilitated by the Director of Army Prosecutions - whose jurisdiction is the General Court Martial.

He further explained that the applicant had raised similar arguments in the military Court but the court Martial Chairperson overruled their request. Justice Sekaana added that there was no evidence to prove that [Tonny] Kipoi was detained at Makindye Military Barracks since records indicate that he was already transferred to Luzira Prison.

Kipoi's lawyer Retired Major Ronald Iduli said they were planning to appeal against the ruling.

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

Random selection

Canada's system for random selection of court-martial members may be under scrutiny after an all-male panel acquitted an accused in a sexual assault case. This editorial argues that the country needs to take steps to provide a safe and fair workplace for women in uniform. Does that mean random selection by the court-martial administrator must be abandoned? If so, are there neutral principles that might guide not-entirely-random selection? E.g., no panel may be all-male or all-female? How about racial minorities? Anglophone/francophone? First Nations representation if the accused is a member of a First Nation (or not)? Should the military judge have the power to order the court-martial administrator to modify the panel composition in a given case?

ICC Prosecutor's policy on children

The International Criminal Court's Office of the Prosecutor issued an extensive Policy on Children in November 2016. Might it be a model for national military justice prosecution authorities as well?

GITMO judge retiring

Carol Rosenberg

Col. Vance Spath, the judge presiding over the USS Cole bombing military commission trial, is retiring. Carol Rosenberg has the story here.

Is the military commission system viable? Given the meagre through-put, the elapsed time, and the number of officials who have quit or been fired over the years, you can't help but wonder.

Military justice and democracy in Brazil

Professors Juliana Cesario Alvim Gomes and Andrés Del Río have written an informative and disturbing assessment of the use and misuse of military jurisdiction in Brazil for Open Democracy. They report:

Two of these laws are direct legacies of the dictatorship of 1964: the Military Penal Code and the Code of Military Criminal Procedure.

The former establishes, for example, that crimes committed by civilians "against military institutions" are to be considered "military crimes" and thus fall under the responsibility of military justice (not ordinary justice).

This original (authoritarian) flaw of military justice was never altered by the democratic order of 1988, either by legislative or judicial means. There was an appeal submitted in 2013 to the Supreme Federal Court however questioning the jurisdiction of military justice to prosecute civilians (ADP 289).

Other legal actions question the legislative innovations which have expanded the competency of military justice in recent years even further.

These actions are aimed at provisions such as that of Complementary Law n.117 of 2004, which expressly establishes that the use of the Armed Forces in guaranteeing law and order is to be considered military activity for the purposes of applying the jurisdiction of military justice, and that of the LC n.136 of 2010 which defines as a "military activity" the use of the Armed Forces in "subsidiary activities" such as actions "against cross-border and environmental crimes" and "repressing crimes that have a national and international impact".

Recently, the Supreme Federal Court began to consider a direct appeal of unconstitutionality (n.5032) aimed at removing the jurisdiction of military justice in these cases.

Minister Marco Aurelio, acting as rapporteur, indicated that the jurisdiction of military justice and the use of the Armed Forces in guaranteeing law and order and fighting crime is constitutional. Minister Fachin disagreed.

And the investigation into the matter was suspended at the request of Minister Luis Roberto Barroso. Until the question of the unconstitutionality of the legislation that supports it is definitively settled, the Supreme Court authorizes the expansive use of military justice.

The authors conclude:

The militarization of security is phenomenon on the rise in Brazil and Rio de Janeiro is only the first step, according to General Villas Boas.

It is also an ineffective move for achieving its alleged purposes and a dangerous one too, for it promotes increased violence, violence determined by race, class, and territory of course.

Together with the expansion of military justice, impunity consolidates violence when faced up against the silence of institutions like the Supreme Federal Court.

As we have seen, military justice, the competency of which has been expanded in recent years, is partial and onerous. Lacking independence and impartiality to deal with civilians, it is an open door that leaves us more vulnerable as a society.

The institutional protection of impunity and corporatism which military justice provides confronts us with a tragic outlook: that of increasing violence and authoritarianism combining with the erosion of democracy and the rule of law.

Uganda: a guide for the perplexed

Been wondering about Ugandan military justice? This op-ed by an opposition MP provides useful context. It is hard in any country to subject a senior officer to military justice. The impediments in Uganda seem particularly daunting, if not insuperable.

New court president in Verona

Vincenzo Santoro has taken office as president of the Military Court of Verona. Congratulations!

By the numbers

Today is a slow day here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza (perhaps as a result of Independence Day--sorry, George III), so even though no particular milestone has just passed, let's run the numbers:

Hits: 573,281
Posts: 4411
Comments: 593
Jurisdictions: 182
Contributors: 23

Thanks to everyone for visiting this blog, posting, commenting, and passing the word to others who are interested in military justice and its improvement in their own country and around the world. Commenters: please remember that you must use your real name -- nothing anonymous. Contributors: please continue to be on the lookout for matters of interest; the more perspectives, the better. Readers: if you are interested in becoming a contributor, please email the editor. Ditto if you are aware of some emerging issue, theme or trend that others should know about.

Finally, a reminder: Global Military Justice Reform is not affiliated with any governmental, international, or nongovernmental organization.

Best regards to all for the summer.

Rolling up her sleeves

Commodore Geneviève Bernatchez
Judge Advocate General of Canada

The Lawyer's Daily has a smart, timely interview with Commodore Geneviève Bernatchez, the Canadian Judge Advocate General. Excerpt:

“What we are doing now is ensuring that moving forward we’ll be able to address, in a meaningful way, the reduction of delays,” Bernatchez pledged.

She also pointed to Bill C-77, that was introduced by the Trudeau government in the Commons last May, that will replace summary trials with summary hearings “so at the unit level, the commanding officer will be able to deal with minor disciplinary infractions much more rapidly,” she said. “All of those offences, that in the past would have been within the summary trial jurisdiction, will be taken away from the summary trial jurisdiction, so that it will unclog the system.”

Like other justice systems, the military justice system “has to evolve,” Bernatchez stressed. “And when we have reports like the auditor general’s report — that provides us with facts, that provides us with meaningful data, that provides us with analysis, that provides us with pragmatic and viable recommendations that are helpful. I welcome that.”

Independence Day 2018

My Lai

Lt. William L. Calley, Jr.

It's behind a paywall, so you'll have to shell out for the June issue of Harper's Magazine if you want to read Seymour M. Hersh's memoir Looking for Calley: How a young journalist untangled the riddle of My Lai. It's a riveting story.

Prof. Amann on Bemba Gombo

Prof. Diane Marie Amann has this insightful column in the blog of the European Journal of International Law on the ICC Appeals Tribunal's disturbing decision in the Bemba Gombo case. She writes (justifiably in the editor's opinion):

Friday’s result in Bemba did not occur in a vacuum. Also jumping to mind is Prosecutor v. Katanga. As I discussed in a 2016 chapter (p. 266), there an ICC chamber acknowledged that the illegal recruitment and use of underaged children had been rampant, yet by application of the statutory modes of liability adjudged no accused leader responsible for those war crimes. And University of Paris Professor Pierre-Marie Dupuy similarly has given the label of “A Crime without Punishment” to the International Court of Justice conclusion that genocide did take place in the Balkans, but that no state was responsible. Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible. This latter result offers neither deterrence nor punishment, and it drastically reduces avenues for redress. It is a far cry from the promise of accountability that formed the foundation of the 1990s revival of international criminal justice.

Twenty years after that moment when 120 states affirmed in the ICC Statute “that the most serious crimes of concern to the international community as a whole must not go unpunished,” it is high time to confront, and combat, an apparent drift away from the assignment of responsibility for international crimes.