A request to readers

Global Military Justice Reform has been going gangbusters, with readers in, at last count, 182 jurisdictions. We don't make a serious effort at outreach other than tweeting our posts. Mostly, we just rely on readers to pass the word to others who may be interested in the subject. So please help by doing so -- the more readers the merrier. Please also comment when the spirit moves you. (Real names only.)

Thanks. Merci. Gracias. Grazie. Danke. Spasibo. Todah. etc etc.

Marine Corps raises a red flag about extremism

Rahima Nasa has written this informative piece for ProPublica on the U.S. Marine Corps' updated order on supremacist/extremist activity. The revised order includes a "squeal rule" requiring others to report violations.

Guess the sentence (one in a series)

What sentence would you impose on a lieutenant colonel found to have "married" the wife of another officer?

Okay -- pencils down. You'll find the answer here. No peeking.

The military-court opiate

Hon. Philomena Mwilu (left)

Then again, in Kenya, there is a call to court-martial the (civilian) deputy chief justice. Excerpt:

Political analyst Mutahi Ngunyi has opined that Deputy Chief Justice (DCJ) Philomena Mwilu should now face the military court.

Through his Twitter handle, Mutahi argued that President Uhuru Kenyatta should evoke the 'Doctrine of Civil Necessity' to stop the judiciary's alleged failure to support the war against corruption.

"Corruption is the State of War and the Judiciary continues their Civilian Coup. They should be stopped," Mutahi quipped.

In this view, he indicated that President Uhuru should have the Deputy Chief Justice face court-martial which he felt would more independently handle the matter.

Doctrine of Civil Necessity is the basis on which extra-legal actions are taken by state actors, and which go outside the purview of the constitution but are necessary to preserve political stability.

His sentiments came shortly after High Court Judge Chacha Mwita suspended the criminal case against DCJ Mwilu.

  Hello?

Uganda's trial of civilians by court-martial is unconstitutional

Andrew Wabwezi

Andrew Wabwezi, a Ugandan lawyer, has written a very clear explanation for The Observer of why, without even referring to international human rights principles, the continued use of military courts to try civilians is unlawful. Check it out here.

Does the existence of domestic-law reasons make the government's course of conduct better -- or worse? To a foreigner, what makes this all the more remarkable is that Uganda's press continues to be robust and free.

Bailiffs and seniority

In a "Fat Leonard"-related court-martial, proceedings had to be halted yesterday while efforts were made to locate a commissioned officer who was at least the same rank as the accused (a Navy commander) to serve as bailiff. Here's the story by Mark D. Faram in Navy Times.

AFSPA -- a brewing controversy

In sum and substance, what the Army officers are seeking is total immunity from any legal action and freedom to shoot and kill at will civilians in “disturb­ed areas” by just branding them insurgents, terrorists or anti-national elements!

As we have seen, the Army has a primary role—defending India by war or deterrence, and a secondary/tertiary role in counter-insurgency and aid to civil power. In its primary role, where enemies are involved, Armed Forces personnel certainly enjoy immunity without question. They don’t even need AFSPA [Armed Forces (Special Powers) Act] for this. But giving them such immunity in their secondary/tertiary role where citizens are involved will be turning the Cons­ti­tution on its head, abandoning democracy and rejecting the rule of law.

Hence, giving AFSPA a free run as demanded by this bunch of Army officers would be suicidal for the democratic republic of India. This cannot be countenanced!

From this post by MG Devasahayam on India Legal.

Which is the frying pan and which is the fire?

A Ugandan M.P. who was to be tried by a military court has had his charged there dropped -- but he's now to be tried in civilian court for treason. Details here.

ROK conscientious objection acquittals

In the run-up to the South Korean Constitutional Court's decision on conscientious objection, a lower court has acquitted eight more defendants who claimed CO status. Details here.

Confidentiality of victim names

It sometimes happens that when governments release documents, they fail to make sure that they are not releasing things that ought to remain private. The recent document release in New Zealand falls in this category by revealing the names of five crime victims. There is much consternation, as indicated by this report.

Armed Forces Tribunal rules that promotion was illegally denied to Maj Gen in 1997, slams the establishment, orders promotion to rank of Lt Gen

In a sombre case of justice delayed but ultimately not denied, the Chandigarh Bench of the Armed Forces Tribunal (AFT) in a landmark decision has directed the Government to promote a senior officer, Major General MMR Narang, to the rank of Lieutenant General with all consequential benefits, 21 years after he retired from service.

Maj Gen Narang, an officer of the Corps of Engineers, was approved for the next rank of Lt Gen but was made to retire in January 1997 as Major General on the pretext that there was no vacancy available in the rank of Lt Gen. The officer, belonging to the Corps of Engineers, had then filed a petition in the High Court in 1997, which was later transferred to AFT.

On meticulous perusal of the documents and case file, the AFT has also come to the conclusion that a false affidavit was submitted by the Government to the Court with regard to the vacant positions in the rank of Lt Gen.

A detailed report can be accessed here, from The Tribune.

New Zealand disciplinary data made available

A wealth of information about disciplinary matters in the New Zealand armed forces has become available. Here's a brief report from 1NEWS. Excerpt:

Kiwi military personnel overseas have committed serious crimes, causing reputational damage and racking up hundreds of thousands of dollars in fines in the past five years.

According to extensive documents obtained under the Official Information Act and analysed by 1 NEWS, almost 5000 charges have been laid in the military court against about 3750 NZDF personnel since the beginning of 2013 - almost 20 charges per week, on average.

About 250 of the charges were listed as being laid against personnel serving or stationed overseas, including 24 against personnel involved in the Iraq mission.

Army TJAG honors My Lai trial counsel Aubrey Daniel

Here's a fine story by Nancy Montgomery from Stars and Stripes. Capt. Aubrey M. Daniel III has long been one of the editor's heroes.

Major reforms afoot in South Korea

KBS World Radio reports:

The Defense Ministry plans to appoint civilian legal experts as the head of military courts.

The move was announced on Wednesday as part of efforts to reform the military under the “Defense Reform 2.0” initiative.

The ministry said it was in direct response to criticism that the military courts’ benches, which consist only of military judicial officers, have failed to consider the general public’s judicial sentiments and standards.

It hoped civilian judges will help enhance fairness and transparency of trials at military courts.

The ministry said it will also abolish the military guardhouse system and introduce additional education programs for problematic soldiers.

The guardhouse system has allowed captains or high-ranking military officers to send rank-and-file soldiers to military confinement facilities at their discretion for up to 15 days at a time. The military plans to make any incarceration possible only through an official court trial and use a military prison instead of a confinement facility.

Transparency in India

Huffington Post has a report here on foot-dragging by the Indian Army in affording public access to records relating to a controversial court-martial. Is the prospect of public dismay a proper reason to restrict access? Excerpt:

The army has used grounds of national security to deny information that reveals just how the military judges their own officers and soldiers accused of heinous crimes.

"Disclosure of such sensitive information would result in public outrage," the army petition states. "Hence keeping in view of public interest and security, it was decided not to implement it."

Article 88 and retired officers: what to do?

Adm. William H. McRaven
U.S. Navy (Ret)

Captain Michael Junge, a respected scholar of naval discipline, writes here (in his personal capacity) in Defense One about retired Admiral William H. McRaven's open letter that was highly critical of President Donald J. Trump. He concludes:

Secretary [James] Mattis could, as a matter of law, recall Admiral McRaven and court-martial him for violations of the UCMJ including Article 88 (Contempt towards officials), Article 104 (Aiding the enemy), Article 117 (Provoking Speech of gestures), or Article 133 (Conduct unbecoming an officer and a gentleman). Convicting McRaven, or whether it’s even advisable to recall the retired admiral, is something else entirely. It’s also possible that he could recall McRaven and hold some form of non-judicial punishment. Or, as was done for officers involved in the Glenn Defense Marine Asia scandal, Secretary Mattis or Secretary [of the Navy Richard V.] Spencer could issue a letter of censure against Admiral McRaven.

Realistically, however, there is little precedent for bringing Admiral McRaven back on active duty for either judicial or non-judicial punishment. He is not accused of murder or child-pornography—two recent cases in which retirees were brought back to active duty for courts-martial. The only retired flag officer court-martialed was Adm. Selden Hooper, who was tried by general court-martial for sodomy, conduct of a nature to bring discredit upon the Armed Forces, and conduct unbecoming an officer and a gentleman—in other words, for being homosexual. While sodomy may have been against the UCMJ and civil law in 1958, Hooper retired in 1950, so one would think the offense would then be tried in civilian court. The other two offenses, however, have so far as I know, no compatible charges under civilian law. Hooper was found guilty and sentenced to dismissal. So, for actions outside the military, a retired officer was dismissed from the Navy and stripped of his pension. With only one known case of a purely military violation of the UCMJ, there is little precedent with which to work.

What might the remedy be? Something as simple as a press release, or even a tweet, from Secretary Mattis that says, “I spoke with Bill McRaven today and reiterated the standards of our profession, standards that we do not put away when we retired” would suffice. Conversely, remaining silent will only serve to lessen the efficacy of military discipline and place an unfortunate context around a memorandum not even seven days old.

The rest of us, active and retired, must remember that there are ways to disagree without being disagreeable. There are ways to condemn without personal contempt. This latter part is the example I wish McRaven had set. And seniors must also be careful to separate true contempt from language that is simply a cri de coeur or unpopular or personally inconvenient. That is an example I intend to follow, and quite honestly, hope my direct superiors do as well.

HRW statement on Uganda

"The African Commission has called on Uganda in 2006 and 2009 to stop prosecuting civilians before military courts, but the military wrongfully persists in maintaining a monopoly on prosecutions for gun crime." Click here for Human Rights Watch's latest statement concerning current events in Uganda.

Passing of Dean Keith M. Harrison

Dean Keith M. Harrison

Some sad news:

[Savannah Law School] Dean and Professor of Law Keith M. Harrison passed away on August 15, 2018 at Memorial Hospital, Savannah, GA. Dean Harrison was a beloved friend, colleague, leader, teacher, and mentor to the students, faculty, and staff. He was a master teacher and a wise and skilled administrator.

He was born in November 1956 to June Bell Harrison (now Russ) and Charles Thomas Harrison of Washington, DC as the youngest of four siblings. A proud Anacostia native, Dean Harrison graduated from Eastern High School. He received his B.A. degree from St. John’s College and J.D. from the University of Chicago Law School.

Dean Harrison had a distinguished career of over 30 years in legal education as both a teacher and administrator. He began his academic career as a Clinical Teaching Fellow at Antioch School of Law. He then was an Assistant Professor at Northern Illinois University; Associate Dean for Academic Affairs, President of the Faculty Senate, and an Associate Professor at the University of Denver College of Law; and Vice Dean, Founding Chair of the Programs in International Criminal Law and Justice, and Professor at University of New Hampshire School of Law. He joined Savannah Law School in 2016.

Never far from Dean Harrison’s heart was his service to his country in the Coast Guard. He served with distinction for four years as a Judge Advocate before beginning his academic career. He was awarded the Commandant’s Letter of Commendation Ribbon and left with the rank of Lieutenant. Dean Harrison continued to serve as a civilian member of the Department of Defense’s Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces and as a public member of the Uniform Code of Military Justice Code Committee.

Colleagues and students remember Dean Harrison as a talented teacher, an able administrator, and a trusted mentor and friend. He invariably took the time to know personally his students. He always had an encouraging word and displayed compassion and concern for people’s well-being. He was renowned for his wise counsel. He urged students and colleagues to hold themselves to high standards of character and integrity — standards to which he also held himself. The Savannah Law School community will miss his warm smile and quick wit. He touched the lives of countless students, faculty and staff and made a difference through his vocation as a teacher.

He is survived by the family he loved dearly and of whom he was justifiably proud: his wife, Karen Anderson, whom he met in law school and who serves as Executive Director of the ACLU of North Carolina, and their children, daughter Michaele and son David, a Savannah Law School student. He also leaves to cherish his memories, his mother, June Russ, brothers Charles Thomas, Stephen, and Darryl, an extended family of brothers- and sisters-in-law and numerous nieces and nephews.

A memorial service will be held in Savannah for Dean Harrison at SLS on Monday, August 20, 2018. Additionally, funeral services will be held in Washington, DC in September 2018, followed by a full military burial at the Arlington National Cemetery.

MP challenges Uganda court-martial (one in a series)

A member of the Uganda parliament who is on trial before the court-martial has challenged the court's jurisdiction. Details here, from The Observer. It's a recurring issue.

Uganda's persistent reliance on courts-martial to prosecute civilians violates settled human rights principles.

Military service

MoroccoWorldNews reports:

Rabat – The Moroccan government will discuss a draft bill to reinstate compulsory military service on Monday.

“Bill 44.18 on Military Function” will be among the major topics discussed at today’s Government Council in the Mediterranean city of Tetouan, according to a statement issued by the government’s administrative office on August 17.

If enacted, the bill would call for the training of young men 18 and over for national duties.

Pushback in India, and counter-pushback

. . . It is the state’s duty to protect a soldier who acts in the line of duty, but equally, to punish him if he has done anything unlawful. In both Manipur and J&K there are instances of illegal action and CBI, under Supreme Court’s directions, is seeking to prosecute those involved.

The fault lies within the military itself in not being able to prosecute persons concerned under military law. There is a larger failure of the government in allowing wrong doers to get away by misusing [the Armed Force (Special Powers)]. For example, since 2001, New Delhi has not given sanction for the prosecution of any military personnel in the 50-odd cases in J&K where Afspa is invoked. It is difficult to believe army personnel were blameless in all the cases.

Second, many in the army, serving and retired, have developed a sense of victimhood, believing that the country is not giving them their due. Many military social media groups promote the notion that veterans have extraordinary virtues and fulminate against those who they feel lack respect for them. The promotion of group self-esteem is a good thing, but when it seeks a pedestal above that of the citizenry, it’s a problem.

From this column in The Times of India.

A Guantanamo update

VOA News reports:

In the U.S. case against five Guantanamo detainees who are accused of aiding in the Sept. 11, 2001, terror attacks, a military judge has ruled that prosecutors may not use statements the detainees made to FBI interrogators after they were removed from a secret CIA prison.

Army Colonel James Pohl, the judge for the proceedings, ruled on Friday that the detainees' statements, made to FBI "clean teams," were not to be used in the death penalty trial.

The detainees had been interrogated while being held in a network of secret overseas prisons run by the Central Intelligence Agency (CIA). After the detainees were transferred to the Guantanamo detention center, an FBI "clean team" -- agents who were not privy to the detainees' previous statements or interrogations -- again questioned the detainees.

Transparency watch, Uganda

The Uganda general court-martial is trying a Member of Parliament. How come this session was closed to reporters?

Amnesty to Uganda: no military trials for opposition MPs

Amnesty International has warned Uganda not to subject two opposition MPs to trial by general-court. Details here.

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

Defense counsel sues to overturn expulsion

A civilian defense counsel who was expelled from a court-martial in Uganda has sued the Attorney General to overturn the decision of the court-martial's president. Details here. Has he sued the wrong defendant?

Casebook supplement available

Congratulations to Judge Gregory E. Maggs and Dean Lisa M. Schenck on publication of the 2018 supplement to their West casebook, Modern Military Justice (2d ed. 2015). It is available here for download.

Meanwhile, in Manila

Speaking of unlawful command influence, does the following report from the official Philippine New Agency give you concern?

MANILA -- The Armed Forces of the Philippines (AFP) on Monday said it welcomes President Rodrigo R. Duterte's relief and court martial order against the commanding officers of the AFP Health Services Command (HSC) and AFP Medical Center (also known as the V. Luna Hospital) and 20 others for their alleged involvement in anomalous transactions.

"The AFP welcomes the pronouncement made by Presidential Spokesperson Secretary Harry Roque relieving from his post Brig. Gen. Edwin Leo Torrelavega, the Commander of the AFP Health Services Command and Col. Antonio Punzalan, the Commander of V. Luna Hospital, for them and around 20 others to face court martial proceedings," AFP chief-of-staff Gen. Carlito Galvez Jr. said.

The relief of these officials stemmed from the outcome of two different but parallel investigations ordered by the AFP chief.

"The task to thoroughly collect material and relevant information regarding the case started sometime in the month of May 2018. The results of which I transmitted to Malacañang by way of a letter to the President sometime this month (August)," the AFP chief added.

The case will be tried under the military justice system and the accused will be proceeded against in court martial proceedings where they will be given the opportunity to be heard.

Galvez said these personnel will be charged with violation of Article of War 95 (Fraud Against the Government).

He, however, said this is without prejudice to other infractions of the Articles of War that may have also been violated; and the accused military personnel’s right to due process.

"As the AFP chief-of-staff and like our Commander-in Chief, President Rodrigo Duterte, I am both saddened and offended by this report. I am not prejudging the named Officers and Enlisted Personnel as the would-be recommendations of the courts martial will be submitted to me for approval and further submission to the Commander-in-Chief for final approval," he added.

"But I commit to the members of the AFP, to the Filipino People, and to our beloved President and Commander-in-Chief that I will render justice to all concerned without undue haste. As the President said during the last SONA (State-of-the-Nation Address) corruption is corrosive. And the warning that— 'I will get you!' And I am one with him in that desire. At ito na yun,"* Galvez said.

In line with this and based on the investigation, the AFP chief bared that he will order that reforms be instituted in the AFPHSC along with a major revamp in that unit to address the systemic corruption.

"I will cause the installation only of officers and staff with the necessary qualifications, competencies, integrity, and unquestionable reputation, to run this institution which is vital to the health and well-being of our personnel and their dependents," Galvez added.

* Google Translate says this means "And that's it." 

SECDEF memo on discipline

Hon. James N. Mattis
Secretary of Defense

Secretary of Defense James N. Mattis has issued a memorandum on the importance of maintaining discipline. Excerpt:

Enforcing standards. is a critical component of making our force more lethal. Our leaders must uphold proven standards. They should know the difference between a mistake and a lack of discipline. If a subordinate makes a mistake, leaders should learn to coach them better. But we must not tolerate or ignore lapses in discipline, for our enemies will benefit if we do not correct and appropriately punish substandard conduct. Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander's duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it [sic] is less burdensome than the military justice system. Leaders cannot be so risk-averse that they lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.

Why was this memo written? What does it mean? It refers to "the cancer of sexual misconduct." Is it an effort to nudge commanders to take more cases to court?

H/T to Military Times for the heads up.

Not military justice, but . . .

The decision of the Court of Appeal of New Zealand in Young v. Attorney General & Ministry of Defence (UK), [2018] NZCA 307 (Aug. 13, 2018), may be of interest to readers. Here, according the the judgment (Brown, J) is what the case concerns:

[5] . . .  [I]n our view the broad issues raised by the appeal are:

(a) Does New Zealand owe Ms [Hayley] Young [a former member of the Royal New Zealand Navy] an obligation to provide her with an effective remedy in the New Zealand courts for the alleged wrongdoing she suffered abroad at the hands of Royal Navy personnel: 

(i) as a matter of domestic law under the NZBORA [New Zealand Bill of Rights Act]? 

(ii) as a matter of international law because of the nature of the alleged wrongdoing involving arguable violation of Ms Young’s fundamental rights? 

(b) Should the Court dismiss the protest to jurisdiction by the MOD(UK) on the grounds that the alleged wrongdoing breached a fundamental principle of justice or some deep-rooted tradition of New Zealand which engages an iniquity exception to the state immunity doctrine? 

(c) Are the courts of England and Wales or the High Court of New Zealand the more appropriate forum for Ms Young’s claim against the MOD(UK)?

Held, appeal dismissed. 

Bhutan civilian court overturns court-martial

A panel of the High Court of Bhutan has overturned the court-martial conviction of two members of the Army on embezzlement charges. Details here. The panel decision is subject to appeal to the full court.

Transparency watch in Australia

Should an inspector general's investigation into a possible war crime be made public? That question is front and center in Australia. Details here. Excerpt:

A Defence spokesperson said the Inspector-General's inquiry was expected to be completed in the second half of 2018.

"This will depend on the number of lines of inquiry identified as work progresses," the spokesperson said.

"The Chief of the Defence Force may decide to release a report in whole or in part. That decision can only be made after the report is complete and has been considered."

About that victims' rights bill in Canada

Victor Choi writes here that Parliament ought to act now. Excerpt:

Passing this bill shouldn't be too difficult. Given that this bill is substantially the same as one proposed by the previous government, the Official Opposition party likely wouldn't want to make too many amendments or make a fuss.

In fact, to ensure a speedy passage, the minister of national defence and his staff should consider reaching out to members of the Standing Committee on National Defence and the corresponding committee in the Senate in good faith, and ask that they consider expediting this bill prior to the next election. They should also offer briefing materials and access to members of the Judge Advocate General for questions.

Personal or subject matter jurisdiction in Pakistan

Pakistan Today reports:

The Supreme Court on Friday rejected defence (sic) ministry’s review petition against its order to uphold the Lahore High Court (LHC) decision that said there could not be court martial of a military official over non-disclosure of his financial assets, according to a report published in an English daily said.

Gill, an army officer, was tried by field general court martial (FGCM) on three charges relating to the money matters and one relating to the improperly filing of his tax return for 1996-97 by declaring his salary as his sole source of income, while he had income from other sources as well.

On a U.S. note, I suspect an officer would be subject to prosecution under the UCMJ.  There are various ways under Articles 133 and 134 that a prosecution could proceed.

A 183rd jurisdiction?

Until recently, Global Military Justice Reform's tracking system had registered readers in 182 jurisdictions. A few moments ago, from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, we noticed that there had been three hits in the last two hours from "Unknown Region" -- a first for us.

Cue Twilight Zone theme music.

Armed Forces Tribunal deprecates the practice of senior military commanders granting maintenance to spouses in marital disputes

The archaic practice of the military awarding “maintenance” to spouses of defence personnel in a summary manner instead of invoking the specialized law dealing with the subject through regular Courts, came under sharp criticism from the Armed Forces Tribunal.

Though there is a well-oiled and established procedure available under Indian law for seeking maintenance in marital or family disputes, orders granting maintenance were being routinely passed by senior military commanders through non-reasoned directions without even discussing the facts of the issue or the evidence thereon. This had remained a sore point and had also been deprecated by a Committee of Experts constituted by the Ministry of Defence.

The Tribunal has now ruled that the Army has no independent power to grant such maintenance in what essentially is a private dispute between two individuals.

The entire judgment is discussed nicely here at Bar & Bench.

What's the back story here?

As readers of Global Military Justice Reform know all too well, one of the recurring issues the blog notes is the choice of forum as between civilian and military courts. Consider therefore, this case, from the United States. An active duty noncom kills his active duty wife. But here's the odd part: the case was tried not in a court-martial, but in federal district court. And it was not tried as murder. The Baltimore Sun reports:

Army Sgt. Maliek Kearney has been found guilty in the killing three years ago of his wife, a 24-year-old private stationed at Fort Meade in Anne Arundel County.

Kearney, 37, was found guilty Thursday afternoon of the federal crime of crossing state lines to commit domestic violence resulting in a death. He could be sentenced to as much as life in federal prison.

The jury returned his guilty verdict Thursday afternoon in federal court in downtown Baltimore.

Why no state prosecution (or was there one and the reporter did not cite it)? Did the state's attorney decline to prosecute? If so, why? Was the killing committed on Fort Meade (and is that exclusive federal jurisdiction)? Why not a murder charge?

Happy Coast Guard Day

Established by Act of Congress approved by President George Washington on August 4, 1790. That makes today the service's 228th birthday. Here is an excerpt with the pertinent provisions of the Tariff Act of 1790.

Love and marriage in the JAG Corps

A sweet wedding story from The New York Times. Excerpt:

Capt. Jaclyn Georgette Ambriscoe and Capt. Richard Williamson Hagner were married Aug. 4 at the First Congregational Church of Chatham in Chatham, Mass. The Rev. Joseph Marchio, a United Church of Christ minister, performed the ceremony.

The couple are both Army judge advocates assigned to Fort Belvoir, Va. She is a commissioner for the Court of Criminal Appeals, an appellate-level court for courts-martial; he is a trial lawyer for the legal services agency’s contract and fiscal law division.

Congratulations to the newlyweds. 

Uganda tries a retiree

Uganda is trying a defence force retiree before a court-martial. Details here.

Human rights jurisprudence limits court-martial personal jurisdiction to serving personnel.

Two Beijing courts cooperate on military-related cases

The Beijing #1 Intermediate Court and the Military Court Directly under the Headquarters of the PLA (a military court at the level of an intermediate court, see this earlier blogpost) have concluded a joint cooperation agreement after several rounds of negotiation  (Opinion on establishing a judicial cooperation mechanism) (关于建立司法协作机制的意见), announced on August 1, People's Liberation Army Day.  As is usual with military legal matters in China, the full text of the agreement was not released, but it was summarized in the media, including on the court's website.  This observer surmises that the joint cooperation agreement was approved by the Beijing Higher People's Court and the People's Liberation Army Military Court.

According to the reports, the agreement has five sections with 21 articles. The civilian court agreed to establish special arrangements for the military to file cases with designated personnel, compile military-related statistics, designate dedicated personnel to hearing these cases, with simple cases heard quickly, complicated cases considered carefully, and make more use of mediation to ensure that disputes are resolved. As this observer has written elsewhere, case closing numbers are one of the important metrics for courts. Military-related cases are difficult for civilian courts to resolve because the military and civilian systems are siloed (see this for more detail). The agreement calls for greater exchanges between the two courts on dealing with military-related petitioning, and includes provisions related to criminal, civil, and administrative cases and the entire judicial process from case acceptance to enforcement.

Signing ceremony for
cooperation agreement

As to why would the Beijing #1 Intermediate Court conclude this agreement, the reports explain that it is one of the Beijing courts with the most military-related cases, relating to military institutions, military personnel, military structures, and military-use land, hearing major military-related cases in the first instance and many military-related appeals.  A search of the Supreme People's Court's database for military-related cases heard in that court (some cases are likely not be posted) confirms a large number of military-related cases in that court, especially linked to the PLA's decision to exit commercial operations (the 2016 Notice on the military and armed police forces stopping entirely compensated services)（关于军队和武警部队全面停止有偿服务活动的通知).  Recent cases include many related to civilian businesses renting military property.

As was previously mentioned on this blog, The joint cooperation agreement appears to be one of a number of such arrangements between Chinese military courts and civilian courts, aimed at better coordination between the civilian and military justice systems--the Central and Southern Commands have worked out analogous arrangements as well.

The agreement appears to be an evolution of the 2014 Supreme People's Court policy document on Expanding Capacity in Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents. This blog post discusses some of the special characteristics and odd issues of these documents.

Comments feature

Global Military Justice Reform has always valued (signed) comments. Unfortunately, it appears that Blogger's comments function is not currently operational. We're trying to figure out if a fix is in the works. Meanwhile, contributors are encouraged to post any comments as new posts. Thanks. 

What do U.S. judge advocates do

When I first became a U. S. Navy judge advocate in 1980 our work was pretty much focused on courts-martial, legal assistance, and giving command advice. Over the years the JAGC has expanded its role into rule of law and operations law advice as an aid to commanders--not a bad thing methinks.  Here's a piece by Charlie Dunlap, a friend of GMJR, with some anecdotal information.  A reader might also interpret the article as a recruiting folder.

What sort of legal work are military lawyers (called judge advocates or “JAGs”) doing in deployed areas like Afghanistan? Actually, lots of different things, and two terrific Air Force JAGs with Duke Law [School] connections recently updated me on their activities there. If you want a glimpse of the interesting kinds of things talented young military lawyers get to do early in their careers, [an interesting read].

What are JAGs (with Duke Law connections!) doing in Afghanistan? Reviewing $1 billion in requirements and much more, published on Lawfire Blog, 2 August 2018.

International Society announces Dublin Conference, Nov. 14-17

The International Society for Military Law and the Law of War has announced its next major conference:

The International Law Applicable to Peace Operations, Dublin, 14-17 November 2018, organised with support of the Defence Forces Ireland, the Irish Group of the Society and the Irish Centre for Human Rights (National University of Ireland - Galway)

Draft programme

Wednesday, 14 November 2018
Arrival of Participants
14.00 – 18.00 Registration (at the Mespil Hotel Ballsbridge)
18.30 – 20.30 Welcome Reception (at the Officers Mess of the McKee Barracks, Marlborough (venue TBC))
Hosted by Brigadier General Howard BERNEY, General Officer Commanding 2 Brigade, Defence Forces Ireland

Thursday, 15 November 2018
08.00 – 08.45 Registration (at the Lecture Theatre of the Cathal Brugha Barracks)
09.00 – 09:30 Opening Ceremony (at the Lecture Theatre of the Cathal Brugha Barracks)
Opening speeches by:
- Colonel John SPIERIN, Director of Legal Service, Defence Forces Ireland
- Professor Dr. Wolff HEINTSCHEL von HEINEGG, President, International Society for Military Law and the Law of War
- Professor Ray MURPHY, Irish Centre for Human Rights
09:30 – 10:00 Keynote speech – A Strategic Analysis of the Challenges in the Domain of Peace Operations
10:00 – 10:30 Coffee/tea
10.30 – 12.00 General Discussion
Human Rights and Peace Operations
Chair: Professor Ray MURPHY, Irish Centre for Human Rights
12.00 – 13.15 Lunch
13.15 – 14.45 General Discussion
International Humanitarian Law and Peace Operations
Chair: Mr. Alfons VANHEUSDEN, Assistant Secretary-General, International Society for Military Law and the Law of War
14.45 – 15.30 Group photo & Coffee/tea
15.30 – 17.30 General Discussion
Status of Forces and the Importance of Host State Law and Sending State Law in the Practice of Peace Operations
Chair: Colonel Mark HEARNS, Command & Staff School, Military College, Defence Forces Training Centre, Ireland
Free evening

Friday, 16 November 2018
08.30 – 10.00 General Discussion
The Use of Force and Detention in Peace Operations
Chair: Colonel (ret.) William NOTT, Irish Centre for Human Rights
10.00 – 10.30 Coffee/tea
10.30 – 12.30 General Discussion
Protection of Civilians in Peace Operations
Introduction:
Chair: Professor Ray MURPHY, Irish Centre for Human Rights
12.30 – 13.30 Lunch
13.30 – 15.00 General Discussion
Legal Aspects of Peace Operations in their Aerial and Maritime Dimensions
Chair: Professor Dr. Wolff HEINTSCHEL von HEINEGG, President, International Society for Military Law and the Law of War
15.00 – 15.30 Coffee/tea
15.30 – 17.00 General Discussion
Dealing with Crimes Against Peacekeepers
Chair: Dr. Shane DARCY, Irish Centre for Human Rights
17.00 – 18.00 General Discussion
Protection of Personal Data in Peace Operations
Chair: Mrs. Helen DIXON, Data Protection Commissioner for Ireland (TBC)
18.00 – 18.15 Closing Session
18.15 – 22.00 Official Dinner (at the Officers’ Club of the Cathal Brugha Barracks)

Saturday, 17 November 2018
Social-cultural and Networking Activity (Specific registration required)
- Tour at the National Museum of Ireland (Collins Barracks)
- Lunch at the Collins Barracks (venue TBC)
- Guinness Store House experience
- Watching the rugby match between Ireland and New Zealand at the Officers’ Club of the Cathal Brugha Barracks (optional)

Sunday, 18 November 2018
Departure of the Participants

Ghost pilot case delayed for jurisdictional ruling

Uganda's general court-martial has stayed proceedings while the civilian High Court adjudicates whether the court-martial has jurisdiction over a civilian government employee. The case involves a fake Russian helicopter pilot who was carried on the rolls in a scam that lasted 11 years. Details here.

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

Encaserner Les cours martiales contraire au principe de la démocratie que la justice soit publique

Les cours martiales présentent des faiblesses systémiques

En janvier 2018, un rapport interne provisoire sur la révision des cours martiales publié par le bureau du Juge-avocat général a causé une véritable onde de choc, une sorte d'apocalypse, pour le système de justice militaire. Le rapport fournit un historique et un aperçu du système des cours martiales, une étude comparative du système de justice militaire d'États sélectionnés, une analyse des coûts afférents aux cours martiales. Il dévoile aussi un bon nombre d'observations critiques, dont certaines proviennent de commandants et de militaires en service. Pris dans son ensemble, on y découvre un système énormément dispendieux et très inefficace. Qui plus est, le rapport dévoile que le système de justice militaire n'est généralement pas perçu comme juste pour les victimes, ni particulièrement efficace lorsqu'il s'agit de protéger les victimes des conséquences de l'inconduite d'un membre du personnel militaire. Un autre rapport tout aussi critique, publié cette fois par le Vérificateur général du Canada en mai 2018 sur la gouvernance, porte un jugement sévère sur la structure et l'administration de la justice militaire. Il conclut que les Forces armées n’avaient pas administré le système de justice militaire de manière efficiente et que le Cabinet du Juge-avocat général n’a pas exercé une surveillance efficace du système de justice militaire tout en respectant les rôles indépendants de chaque acteur statutaire dans le système de justice militaire. 

En sus de ces deux rapports accablants, il reste un autre aspect qui sera examiné et mis en valeur dans ce propos.  L'aspect qui mérite de faire l'objet de cet examen concerne l’organisation matérielle des cours martiales ainsi que la configuration des lieux dans lesquels elles sont appelées à œuvrer, un aspect important qui n’est pas étranger au bon accomplissement de leurs fonctions. Car tant l’organisation matérielle que la configuration des lieux servent à conférer la dignité, le respect et la solennité aux lieux où se tiennent les débats.

Étant avocat, j'assiste ou je participe régulièrement à des audiences devant des cours tant civiles que militaires. Assis aux premières loges, ceci me permet de constater les importantes différences entre les tribunaux militaires et civils quant aux formalités, rituels et protocoles d'usage dans ces cours de justice. Selon moi, encore là, le système des cours martiales n'est pas à la hauteur des attentes des justiciables et du personnel qui œuvre dans le système. Et le bât blesse. Je m'explique

Majesté et dignité des instances judiciaires

Dans son ensemble le système judiciaire du Canada a hérité d'un bon nombre de traditions du système judiciaire britannique. Ces traditions qui accompagnent la procédure judiciaire visent un triple but: 1. conférer une certaine majesté ou dignité aux instances judiciaires; 2. établir une distinction entre les tribunaux judiciaires et les tribunaux disciplinaires ou administratifs, et 3. rappeler à l'ensemble des citoyennes et des citoyens que l'administration de la justice joue un rôle prépondérant dans notre système de justice.

Selon la tradition au Canada, les juges comme les avocats doivent porter une longue toge noire comme costume d'exercice professionnel. La toge est un symbole historique d'un système qui résiste au temps et qui souligne l'autorité qui s'attache au service de la justice.  Elle rappelle à ceux qui la porte qu'ils doivent adopter un comportement qui préserve le lien de confiance entre le public et l'administration de la justice. Ces derniers portent aussi des chemises blanches avec un col cassé d'où pendent un « rabat » ou des « pattes » qui sont deux petits morceaux de tissu blanc attachés à la bande du col. Certaines personnes prétendent qu'elles représentent le Vieux et le Nouveau Testament ou les tables des dix commandements pour évoquer les responsabilités des juges et des avocats.

Normalement, la salle d'audience est un aussi un espace très hiérarchisé qui assigne à chacun une place. La salle entière est organisée autour d'un axe symétrique séparant d'abord l'estrade du juge et le banc des avocats avec une barrière qui dessine la frontière entre le public et le personnel judiciaire. Cette ligne de démarcation entre la tribune du public et les professionnels de droit est essentielle car l'avocat doit faire preuve de vigilance dans la représentation des intérêts légitimes de ses clients et conserver le secret absolu des confidences qu'il reçoit en raison de sa profession.

Lorsque le juge entre dans la salle d'audience, toutes les personnes dans la salle doivent, tel que requis par le décorum, se lever. Aucun chapeau ou couvre-chef n'est permis, sauf pour des motifs religieux. Le protocole exige que les avocats saluent en entrant dans une salle où une audience est en cours. Plus particulièrement, ils saluent lorsque le juge entre pour ainsi exprimer leur respect envers sa charge judiciaire. Un salut à la Cour ressemble à «une inclinaison de la tête » tout en baissant les yeux. Cette marque de respect tient au fait que le juge représente la Reine et incarne la souveraineté.

Unionization?

The law relating to the Armed Forces remains static and requires to be changed, keeping in view the changes effected by other democratic countries. We can no longer ignore the challenges of remodelling the governance of Armed Forces and protecting the fundamental rights of its personnel. There is a need for a more authentic projection of the military as it cannot be disconnected from the civilian realm. The government must redefine the rights and duties of military personnel to ensure that the military as an employer is capable of attracting and retaining the best talent.

From this Daily News & Analysis op-ed by Global Military Justice Reform contributor Wing Cdr  (ret) UC Jha on unionization of armed forces.

Why was this case tried in military court?

A Vietnamese military court has convicted a former colonel. Details here. But why was he not tried in a civilian court? The offenses, at least some of them, certainly have a military nexus, but military court personal jurisdiction should be restricted to serving personnel, not retirees (let's assume the accused had retired), not veterans, and not civilians.

Civilian scrutiny of military operations

In Jamaica, a civilian commission is looking into the so-called Tivoli Gardens operation. The Defence Force sought judicial review of a commission warrant seeking evidence related to the firing of mortars -- and was rebuffed by the court. Only operational orders can be withheld. The Observer has the details here.