Wednesday, October 31, 2018

Training mishaps

This report from Singapore catalogs how a variety of training-related injuries and deaths have been handled as between civilian and military judicial authorities. Excerpt:
[Defense Minister] Dr Ng [Eng Hen] had also stressed that when training incidents occur, MINDEF and the SAF must “rely on our judicial system to determine the facts and mete out the appropriate punishment where required”.

“It would be wrong and unfair to punish SAF servicemen beyond the level of offence committed which has been determined by independent and impartial judicial processes,” he stated.

Whistleblowing and the Spanish Army

Ex-Lieut. Luis Gonzalo Segura
A former Spanish Army junior officer is fighting his discharge and wants two issues referred to the Court of Justice of the European Union, as Público reports here. Lieut. Luis Gonzalo Segura's case will be heard by the military chamber of the Spanish Supreme Court on Tuesday. He contends that he was improperly punished because his complaints about misconduct by his superiors were truthful. Additionally, he argues that the lower court decision is defective because it relies on a regulation that applies solely to the Guardia Civil, of which he has never been a member. The issues he wishes to have referred to the EU court: whether his right to free speech was violated and whether the military court lacked independence and impartiality. See Panicello, No. C-503/15, ¶ 37 (CJEU Feb. 16, 2017):
[T]he requirement for a body making a reference to be independent is comprised of two aspects. The first, external, aspect presumes that the court exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever (see judgments of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 22, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19), and is thus protected against external interventions or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (see judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 51; of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 30; and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19).

Tuesday, October 30, 2018

ABA Journal article on military commissions

The ABA Journal's November 2018 issue has a cover story by Lorelei Laird about the Guantanamo military commissions. It's available here.

Planned abandon of sexual assaults victims

October 28, 2018. In an article "Cabinet documents show transfer of sex-assault investigations to military police (in 1998)", the Globe and Mail reports that in 1998 the Cabinet was told that a public relations problem the military was then facing, in addition to its mishandling of the Somalia Scandal, that of rampant sexual assault would be quelled if Parliament transferred the investigation of these most serious crimes to the military police and their prosecution to court martials.  It is well know that at the time the military police totally lack any training, expertise, experience to be dealing with any such serious crimes. The military disciplinary tribunals (court martials) also lacked any training and experience in dealing with such serious offences.  The argument used by the military to convinced Cabinet to trust them with that important new responsibility was that it could act "more swiftly" with such matters as if speed and expediency was an antidote to the lack of experience, expertise and training. No wonder that in 2015, retired Supreme Court Justice Marie Deschamps, who conducted an external review of sexual misconduct within the armed forces, said the Military police lacked skills and training to deal with sexual

Plus ça change plus c'est la même chose.

Another case headed for trial at Guantanamo, slowly

Human Rights First reports here on renewed interest in bringing another case before a military commission at Guantanamo. The accused include an Indonesian man and two Malaysians. The charges arise from bombings in Bali in 2002 and Jakarta in 2003. The lead accused was apprehended in 2003 and has been at Guantanamo since 2006 -- 12 years ago.

Monday, October 29, 2018

Whistling at the King's Cup

The Spanish Supreme Court affirmed the acquittal of a member of the Civil Guard, whose identity and photos had been  manipulated in order to implicate him in a demonstration of whistling during the National Anthem at the  2015 King's Cup, an annual soccer competition among Spanish teams, in the Nou Stadium in Madrid, the largest stadium in Europe.

On May 30, 2015, the accused went to the stadium to attend the final match of the King's Cup, between FC Barcelona and AC Bilbao. During the match a large part of the public started whistling when the National Anthem was played, in the presence of King Felipe VISantiago Spot, the president of "Catalan Action" was tried but ultimately acquitted for taking advantage of the sports event to vindicate Catalan independence.

The accused, who was acquitted in January 2018 by the Military Court, appealed the judgment before the Supreme Court because he was in disagreement with the facts as found by the Military Court, which in his estimation, harmed his presumption of innocence and could prejudice him in the disciplinary file that the Civil Guard had initiated against him.

The Supreme Court ruling describes that on the day of the match the accused's companions reported to the sector where he was assigned, a series of photographs published in a Facebook profile, accompanied by disparaging commentaries, such as "Anti violence committee if you want to punish the public for whistling during the anthem, start with me, if you have the balls". These publications were disseminated by Whatsapp and reached the accused's superiors.

A disciplinary action was initiated against the accused for the presumed commission of a serious misdemeanor and he was sanctioned with a suspension of functions for actions seriously contrary to the dignity of the Civil Guard.

The Supreme Court affirmed his acquittal because in an expert report it was found that the photographs in question were the object of crude manipulation, and that the original photograph was manipulated because it had been taken at the end of the match "when no one was whistling."

The Supreme Court partially granted the accused's appeal and affirmed that his participation in the established facts has not been sufficiently proven permitting the modification of the facts in the judgment. Judge Menchen in a separate opinion noted that although he also affirmed the acquittal, the facts were not sufficiently investigated because the investigating judge did not insist on obtaining information about the authenticity of the report of the social media. He noted that the "real possibility of manipulation of digital communication systems and the anonymity, which such systems authorize and the free creation of accounts with a false identity, make it perfectly possible to pretend that something is real when it is  not."

Sunday, October 28, 2018

Bribery charges in Nepal Army

The Kathmandu Post reports here on an Army recruiting bribery scandal:
A court of inquiry, under the leadership of Maj Gen Sharad Giri, is investigating into the complaint that 180 personnel, including a major from Mid-Division in Hetauda, solicited bribes from many aspiring soldiers assuring them job in the national defence force.
The article also recounts previous incidents of favoritism in promotions. 

Saturday, October 27, 2018

Are military operational reports subject to copyright?

The Advocate General of the European Union Court of Justice thinks not. His opinion in Funke Medien NRW GmbH v Federal Republic of Germany, No. C-469/17, is discussed here. The opinion itself can be found here.

Friday, October 26, 2018

Will the Dangari court-martial verdict stand?

Lt. Gen. (Ret) H.S. Panag
Lt. Gen. (Ret) H. S. Panag, a former member of the Armed Forces Tribunal, wonders whether a recent high-visibility court-martial will withstand review:
More than that, there is a legal issue, which may lead to their exoneration. The Army Act 1950, Section 122, unambiguously states that no trial by court martial of any person subject to the Act shall commence after the expiration of three years from the date of the offence; or where the commission of the offence was not known to the aggrieved person or the authority competent to take action, from the first day it comes to be known; or if the identity of the accused was not known, from the first day it comes to be known. 
The Army Act 1950 is an act of Parliament and the provision of Section 122 is absolute, and has been upheld by the Supreme Court on a number of occasions in favour of the accused. The SGCM thus becomes legally invalid. The case could only have been tried in a criminal court, for which the permission of the central government is mandatory as the case is covered by the AFSPA. 
It is surprising that this was not brought to the notice of the Supreme Court during the course of the hearing in May 2012 by the petitioners or the respondents. It is intriguing that neither the convening authority nor the court in the SGCM took note of this. The accused may not have raised the issue as they knew that they have a favourable case at the appeal stage. 
It would be a shame if there was a tacit understanding between the Army and the accused to abuse the justice system. In my view, the Dangari SGCM is chimera, where justice has not only been delayed but is likely to be denied too.

My Lai prosecutor interview

President Richard M. Nixon
John Partin, who prosecuted the Calley case with Aubrey M. Daniel III, has given this fascinating interview to the Columbus, Georgia, Ledger-Enquirer. Then-Captain Partin was six months out of law school when he got the assignment. Both he and Captain Daniel wrote protest letters to President Richard M. Nixon when Nixon intervened in Calley's favor:
He criticized the president for “no condemnation from your office of all the persons within this grand society who reacted with threats of violence against the court members, the judge, and other participants. . . . The failure to condemn such acts is an implicit condonation of their acts, at least to them.”

Partin concluded his letter to Nixon with this declaration: “Expediency and politics are not going to provide the backbone for a rejuvenation of the spirit of America which you have said you wanted for this country. These actions can only delay that much needed rejuvenation.”

He never received a response.

ROK court-martial data

This report from The Korea Herald provides some eye-catching data about military justice in the South Korean armed Forces. Excerpt:
According to General Military Court data released to Rep. Song Ki-hun of the Democratic Party of Korea, 1,279 military personnel were tried for sex crimes at the court from 2015 to 2017. 
More than 34.2 percent of the personnel had allegedly violated military criminal law -- committing sexual assaults against fellow soldiers -- while 28.3 percent were cited for violation of the special law on sex crimes. Some 26.6 percent allegedly violated the criminal law, and 9.4 percent of the personnel were cited on the act for protecting children and juveniles against sex offenses, according to the data.

Among the cases, only 11.5 percent resulted in jail terms, while 35.5 percent received suspended sentences and 27.1 percent received fines. The rate of acquittal stood at 5.16 percent, and 1.1 percent of cases were dismissed by the prosecution.

The military court also appeared generous on spycam crimes, or crimes involving the taking of photographs or video without consent, the lawmaker said.

From 2016 to July this year 77 spycam cases went to trial, and the court handed down fines in 90.9 percent of the cases. The average fine was about 3.25 million won ($2,880).

The lawmaker highlighted that 29.2 percent of the 528 appeals resulted in reduced sentences.
"Earlier this month, Rep. Song proposed a revision bill that would abolish the High Court for Armed Forces and transfer the appeals to regional courts."

Wednesday, October 24, 2018

Conscientious objection and human rights

The UN Office of the High Commissioner for Human Rights is seeking comments from NGOs about approaches and challenges with regard to application procedures for conscientious objection to military service. The invitation for comments can be found here. The pertinent 2017 Human Rights Council resolution can be found here.

New for your bookshelf

Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha and Professor (Dr.) Sanghamitra Choudhury have a new book out: Human Rights in the Indian Armed Forces: An Analysis of Article 33. From the advertisement:
The military plays an important role in nation-building and national security. Notwithstanding special requirements of military life, the members of the armed forces should enjoy the rights guaranteed in the Constitution and other relevant international human rights treaties which India has ratified to the extent that those rights are available to other citizens of the country. The guarantee of a fair trial should apply to all proceedings under the military legal system, including summary trial and summary systems of court martial. The government must ensure the economic, social, and cultural rights of military personnel including housing, medical care, education, free legal aid and social security. Derogations of the Fundamental Rights under Article 33 should not be carried so far as to create a class of citizens who are not entitled to the benefits of the liberal interpretation of the Constitution.

This book is aimed at all those who are involved in promoting, protecting, and enforcing the rights of not only the members of the armed forces, but also the other forces engaged in the security of the country. It will of relevance to parliamentarians, government officials, military authorities and members of the civil society who have a stake in the armed forces.
Congratulations to the authors on this notable addition to the literature. 

Tuesday, October 23, 2018

Operations of not-war

Brazil may not be the most violent country in Latin America, but according to the Mexican Secretariat of Public Security, which charts this data, almost half of the most dangerous 50 cities in the world are in Brazil.  Since February 21, 2018, Brazilian President Michel Temer, by means of Decree 9288/2018, has declared Rio de Janeiro under military intervention to end "the serious endangerment of public order" caused by the drug war between various armed gangs and paramilitary militias in Rio's favelas, or slums.  Under Brazil's Constitution, the President may call on the armed forces to patrol the streets, even to the exclusion of civilian authorities.

Brazil's Ministry of Defense describes these public safety operations as "operations of not-war".  The International Commission of Jurists, based in Geneva, stated that in the first two months of the intervention, Rio had over 1,500 shootouts and noted that "[I]nserting an army into these conditions hardly seems like the ideal way to reduce tensions, and begs the question of what exactly is the Ministry thinking of when it describes the intervention as a 'not-war', 'limited use of force' endeavor."

In March, Brazil's Army made public its Rules of Engagement.  Given the absence of an intense protracted armed conflict, the applicable rules for the RoE are international human rights law.  These standards require that lethal force be a measure of last resort, only to be used in cases involving self-defense or the defense of others against threat of death or serious injury- a standard known as "absolute necessity."  The Rio RoE however state that lethal force can only be used as last resort when facing a case of serious threatening act against the physical integrity of the soldier, third parties, facilities and/or material objects essential to the fulfillment of the mission.  Use of lethal force in defense of objects contradicts international human rights law.

Sunday, October 21, 2018

New chief judge for Guantanamo military commissions

Carol Rosenberg writes here about the designation of a new chief judge for the U.S. military commissions at Guantanamo Bay, Cuba. He's Army Col. Douglas K. Watkins, who is already serving as one of the commission judges.

Saturday, October 20, 2018

Business Recorder editorial on military courts

The frequency with which the civilian courts have been suspending military courts' verdicts highlights the civilian authority's failure to fulfil its part of the responsibilities. It may be recalled that Parliament had willy-nilly agreed to have terrorism suspects tried by military courts, but with a sunset clause. During this time, the previous government was supposed to put in place a sound witness protection programme. But it did next to nothing, with the result that in March of last year Parliament approved two years' extension in military courts tenure. Before that tenure ends in six-month time, the present government must step up to the plate and do the needful.

From this editorial in the Business Recorder

Friday, October 19, 2018

Wondering why the Navy doesn't have a confirmed general counsel?

Sen. Kirsten Gillibrand (D.-NY)
The Washington Examiner explains it here. Hint: it has to do with Sen. Kirsten Gillibrand's proposed Military Justice Improvement Act and shifting the charging power from commanders to lawyers outside the chain of command.

U.S. military justice decision of note

The case of E.V. v United States (Lt Col Robinson, Military Judge) and Sgt David Martinez (real party in interest), 75 M.J. 331 (CAAF 2016), continues, even though SGT Martinez was acquitted of all charges in the intervening time.
To put this into perspective, note that it is a POD case, and after CAAF decided that it did not have jurisdiction, Ms. E.V., the alleged victim of a sexual assault under Art. 120, UCMJ, filed suit in federal court arguing that inter alia the MJ erred and abused his discretion in ordering (a) an in camera review of EV's mental health records; and (b) ordering a redacted version disclosed to the court-martial parties pursuant to a Protective Order.

Notably, the MJ had ordered them released under two rationales: (1) The "crime-fraud" exception; and (2) that they were "constitutionally required" to be disclosed. EV then filed suit in federal district court, which dismissed her Complaint under sovereign immunity grounds. EV appealed and on Wednesday, the 17th, the 9th Circuit affirmed the dismissal in a comprehensive opinion, addressing sovereign immunity, the Administrative Procedure Act, that EV's 4th Amendment claims failed to state a valid claim under Rule 12(b)(6), FRCivP, and that the MJ's reliance on the now-erased "constitutionally required" exception, failed "for lack of redressability."

This is obviously an important decision for a number of reasons for military justice practitioners and your close attention to the 9th Circuit's decision is more than warranted, which is available here.

Russian Duma passes military courts reorganization bill

Russia's military courts will be reorganized under a measure that has just been passed by the State Duma. Details here. Background on the Russian National Guard (flag at left), which the measure covers, can be found here.

74 military court cases overturned in Peshawar

The Peshawar High Court has overturned 74 military court convictions for insufficient evidence, among other reasons such as lack of jurisdiction and unfair trials. The defendants had all received life and death sentences. Details from Dawn here.

Will the government appeal? Will the High Court's decision stand? Stay tuned.

The current authorization to try civilians in military courts -- a practice that violates human rights standards -- expires next year.

Thursday, October 18, 2018

Nagaland Post editorial

The Nagaland Post has run this editorial about the recent conviction of Indian Army personnel, including a general, in a case growing out of a 1994 fake encounter. Excerpt:
. . . The irony of the entire brutally inhuman fake encounter killings is about the judgment by the army’s own general court martial. It is an irony because the court martial of the accused should not have happened under Armed Force (Special Powers) Act 1958 which insulates or shields guilty personnel of any wrongdoing even leading to death while operating under the Act. The other irony of the October 15 court martial judgment was that the entire case was initiated through the courageous efforts of former Assam minister and Bharatiya Janata Party leader Jagadish Bhuyan who had filed a habeas corpus petition in the Gauhati high court on February 22, 1994. It may be noted that the BJP is not in favour of diluting or revoking AFSPA and to Bhuyan’s crusade does not conform to this stand. After the habeas corpus, what followed was a CBI probe and consequent charge sheet against the accused. From thereon, the army took over by instituting its own general court martial against the accused. Most interestingly, the October 15 judgment came at a time when more than 700 army personnel had petitioned the Supreme Court asking for stay against all court-monitored investigations into fake encounters by the armed forces. The first prayer of the petitioners was to protect the “bonafide” action of soldiers under the Armed Forces (Special Powers) Act, “so that no soldier is harassed by initiation of criminal proceedings”. A colonial mindset within some politicians as well as army, felt that the AFSPA was necessary to protect the internal security and integration of India. On that plea thousand of Nagas under erstwhile Naga Hill and Tuensang Frontier Division were subjected to inhuman atrocities and many still carry the scars on their bodies and minds. Some of the atrocities committed by the army and armed police forces deployed to the Naga hills were unparalleled and unmentionable. It is justice that the accused have been given life sentence for taking away the lives of nine innocent citizens whose families are left psychologically devastated. However, this does not take away the need to remove the draconian cover that insulates uniformed personnel from being taken to civil courts.
The court-martial results are subject to review within the Army as well as appellate review by the Armed Forces Tribunal. 

Uganda: the case of the ex-M.P.

Uganda is again facing litigation over whether its court-martial can try a civilian; in this case, the accused is a former Member of Parliament. Thus far, the High Court has refused to halt the ongoing court-martial, but further proceedings are anticipated.

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

How not to store evidence

An Ivory Coast military court has moved to new quarters following a scandal in which the prosecutor's police bodyguard was found to have been selling weapons that the prosecutor had kept as evidence in his personal residence. Details here

Soldiers and depression

A High Court judge in Trinidad & Tobago has made some important remarks about military personnel and depression, as reported here:
A high court judge says the Defence Force has a duty to its members and the country to ensure steps are taken to assist soldiers who suffer from depression or mental illness.

Justice Ricky Rahim made the observation after he ruled in a claim of a soldier who sought to be promoted retroactively.

In his ruling, delivered recently, Rahim said, “This is yet again another case to come before this court in which there is information that points to severe depression or mental illness on the part of members of the armed forces.

“This court has had cause to comment on this in the past and repeats its comment that the Defence Force owes duty (although not necessarily a legal one) to both its member and to the country as a whole to ensure that steps are taken to assist such persons as they seek a way out of the deep dark hole that is mental illness.

“The benefits far outweigh the disadvantages to all,” the judge said.

A strange tale from Switzerland

Was it hazing, or something else, when Swiss soldiers, on orders, pelted a comrade with stones and nuts? Consider this strange story (and the now-viral video). Excerpt:
At this stage, it is unclear why the soldiers were told to throw objects at the recruit. A spokesman for the military has said a preliminary investigation into the incident is underway.

A decision is expected to be taken in the next few weeks.

The army has also tweeted about the incident. Roughly translated, the tweet reads: “Mistreatment of Ticinese recruit in Emmen: the army does not accept corporal punishment. The head of the army is visiting the concerned recruit school. Military justice/judiciary is investigating the incident.”

Wednesday, October 17, 2018

Keeping with the making space theme

Guest post: John Goehring on International Law Manuals for Military Operations in Space, at LawFire, 10 October 2018.
With the President’s announcement of the formation of a Space Force, renewed attention has arisen about the law applicable to military space operations. John Goehring is a major in the Air Force Reserve who is involved in two important projects that can contribute to a better understanding of the legal architecture for military space activities. Lawfire aims to keep you up to date on key developments on this tropic, so we invite you to read his very interesting essay about developments you may not have yet heard about[.]

A Space Force may be on some minds

I was attracted to an article, Dale Stephens, The International Legal Implications of Military Space Operations: Examining the Interplay between International Humanitarian Law and the Outer Space Legal Regime. 98 INT. Law Studies, U. S. Naval War College (2018).


In the contemporary period, many military forces rely heavily on space-based assets to conduct operations across a wide spectrum of contexts. Such reliance necessarily exposes a correlative vulnerability that such assets may be degraded or destroyed, especially in a time of armed conflict. However, the legal framework that governs military action in space during a time of armed conflict is not well explored. This article examines the interaction between International Humanitarian Law (IHL) and the Outer Space legal regime. Harmonization of legal regimes is a goal of any reconciliation project, although such harmonization may not always be readily possible. In such circumstances legal interpretative mechanisms that seek either a vertical hierarchy (jus cogens) or a horizontal priority (lex specialis) may apply, but their utility is often elusive in particular situations. Hence, in those situations identification of relevant state practice can provide a more reliable guide as to treaty context and thus better identify respective objective preferences. Though even here there may not be sufficient state practice, or it might be too diffuse. Thus, when all “normal” legal tools fail to render a satisfactory outcome, this article concludes that a stark policy choice will need to be made between what aspects of which particular treaty regime will apply. It offers a set of principles that might be invoked as a solution. Such an approach is advanced as means of resolving differences by assimilating common value commitments contained within both the IHL and the Outer Space treaty regimes to provide a viable means of harmonization.

Tuesday, October 16, 2018

An interesting Swiss military appeal

The Swiss Armed Forces Attorney General has issued the following news release:
Starting on 5 November 2018, a member of the Border Guard Corps will appear before Military Court of Appeal 2 in Zurich. The appeal hearing will focus on a case heard in the first instance on December 7, 2017; Military Court 4 had found the border guard guilty of attempting to terminate a pregnancy, negligent bodily harm and repeated failure to comply with the service requirements. All parties appealed against the judgment of the Court of First Instance.

On 5 November 2018, a member of the Border Guard Corps will appear before Military Court of Appeal 2 in Zurich. The accusation accuses the border guard of being responsible for the death of the unborn child of a Syrian woman. The border guard was sentenced to seven months' imprisonment and a 60-day fine, both suspended, for attempted termination of pregnancy, negligent bodily injury and repeated failure to comply with service. The Syrian woman was part of a group of refugees who, on July 4, 2014, transited from France to Italy. The Border Guard Corps supervised this group during the journey from Vallorbe to Domodossola.

The appeal hearing will begin at 9 am on 5 November at the Cantonal Court of Zurich, Hirschengraben 15, in Zurich. The hearing is open to the public. It is expected that the hearing will last two days under the presidency of Colonel Maurus Eckert.

Monday, October 15, 2018

Seven, including a Major General, handed out life imprisonment by a Court Martial in India

Justice finally seems to have been delivered leading to closure to the agony of the families of five innocent people killed by troops in the State of Assam in India.

A Summary General Court Martial (SGCM) has convicted seven personnel, including one officer of the rank of Major General (who was holding the rank of Colonel at the time of the incident) and has awarded the punishment of dismissal from service and life imprisonment.

A detailed report has been published by The Tribune.

In the opinion of this author, the correct course would have been to allow a regular Court to try the offenders since the Army Act prescribes a limitation of 3 years for a trial by Court Martial. It is not known as to how the Court Martial has been able to tide over the statutorily provided limitation.

Notwithstanding the above, the punishment once again proves that law has to prevail equally for all, irrespective of rank, and nobody can get away with such grave crimes under the garb of performing duty.

Canadian courts martial; a vestige of the past or a lost cachet?

        In January 2018, the Office of the JAG published a broad policy-based analysis and discussion of Canada's court martial system focused on assessing the effectiveness, efficiency and legitimacy of the current system and presenting a range of representative options for enhancing it.  The detailed assessment concluded that the current court martial system is 'somewhat effective'  and "appears to have considerable room for improvements." The report also provided a comparative study of military justice systems from around the world; as well as an analysis of the high costs associated with running courts martial. 

        The report concluded that courts martial are very expensive and inefficient. 

In May 2018, the Auditor General also identified a range of problems with the structure and organization of courts martial and its impact on the administration of military justice. This past month the Court Martial Appeal Court [CMAC] made a potentially ground-breaking decision in Beaudry v. Her Majesty the Queen, 2018 CMAC 4, challenging a linchpin provision of the Code of Service Discipline which currently deprives soldiers of their constitutional right to opt for a jury trial. Welcomed as an avant-garde decision, this landmark ruling will soon land in the Supreme Court of Canada [SCC] where the constitutionality of the impugned provision will be decided upon.

But there is more. 

        Specifically, the unconventional architecture of courts martial is more than passé ; however, it has yet to be addressed by internal or external review mechanisms. For this, I present my own observations which flow from my recent attendance at three court martials which I attended as Counsel for victims of sexual assault. My experience as a member of the gallery was disappointing and are the basis for the follow-on first-hand observations.

Solemnity of the military judicial process; a lost art?

Canada has inherited many of its judicial conventions for Court Martials from the British, which were first established under the authority of Charles II in May 1663 in the “Regulations for the Musters” and in the Articles of War in 1673. These conventions serve many purposes. First, to confer judicial authorities with a certain formality or dignity. Second, to draw a distinction between judicial proceedings and those that are disciplinary or administrative. With the passage of time, Canada's courts martial system is showing signs of both fatigue and obsolescence and a certain lack of gravitas.

The look and feel of a courtroom 
is essential to the administration of justice

According to Canadian legal tradition, in court both judges and lawyers must wear long black robes – a historical symbol of a time-honoured system where the exercise of authority in the service of justice is emphasized. These robes (or gowns) remind all those who wear them that they must behave in a manner that preserves the bond of trust between the public and those who administer justice. Lawyers also wear white shirts with ‘barrister tabs’ (two small pieces of white fabric attached to the collar band).

Strangely, military prosecutors and military defence lawyers appearing at courts martial before judges (who are themselves robed) are not required to wear gowns or tabs. In my view, military lawyers, like military judges, should be dressed in a manner that not only confirms the existence of a formal proceeding, but that also promotes the dignity of the judicial process. This is the purpose of gowning, which is one of the well-established and respected legal traditions maintained in all other legal jurisdictions in Canada.

Courtroom organization

Normally, the courtroom is a very hierarchical environment where each person is assigned a specific place. The entire room is organized around a symmetrical central axis with the judge’s bench (normally on a dais) at the front, then the counsel tables on either side of it and a transversal barrier (known at the ‘bar’) that separates the public from the judicial personnel. However, the Court Martial, by appearances alone, is a very poor cousin to the criminal courts. Let me explain.

Few courts martial outside of Ottawa take place in a permanent courtroom facility. In almost every court martial taking place outside of the National Capital Region (where a such a courtroom is located), the local military “chain of command” assumes the unlikely task of temporarily transforming a military quarter into a courtroom and providing each court martial on an ad hoc basis the required administrative services. For reasons steeped in the very distant past, this task is assigned to the accused’s unit commanding officer (CO).

This means that for each court martial, a new unit commander undertakes the onerous task of providing the necessary space to house the judge; prosecutors; defence lawyers; court clerks; waiting areas for witnesses, media representatives and the public; and, equip these spaces with electronic amenities. Overnight, the CO must transform a military facility, usually a conference room or a classroom, into a courtroom. This sort ad hoc procedure present an obstacle to the efficient functioning, decorum and dignity of the court.

Not surprisingly, the standard of excellence varies greatly from one court martial to another. Given that for each court martial proceeding, a neophyte commander tries to transform a military facility into a courtroom, more often than not court martial proceedings are routinely held in cramped quarters that generally lend themselves very poorly to the needs and comfort of the public and true respect for decorum and etiquette expected of a criminal courtroom setting. 

          In most courts martial, the judge sits at eye level to the gallery.  Also, due to limited space, the bar between the ‘public gallery’ and legal professionals is often imaginary, with the accused and lawyers almost blended in with the audience. Yet, this line of demarcation is essential because lawyers must both be vigilant in representing the legitimate interests of their clients and in ensuring they maintain the absolute confidentiality of information received in the exercise of their profession. 

          I have also seen situations where prosecution and defence counsel are barely separated from one another. Worse, a victim is made to testify within a few feet of the accused while

The result is predictable: it is very difficult, if not impossible, to correctly administer justice or observe due decorum during a court martial when it takes place the cramped quarters of a canteen or a classroom.

Public interest is well-served when public and media access is facilitated

         Courts martial are normally held in isolated military garrisons situated in rural areas. 

         Access to any defense establishment is controlled under the Defense Controlled Access Area Regulations (DORs/86-957) allowing the military to conduct the search of persons granted such access. Not surprisingly, this can and probably has a 'chilling effect' on members of the media or the general public wishing to attend these proceedings. For those two reasons alone, nowadays, few members of the public actually attend court martial proceedings.  This makes the public right of access to courts martial illusory, vitiating the ‘open court’ principle leading to a deplorable out of sight out of mind situation.

Court etiquette

          I was also disappointed to find that, in sharp contrast to the rather formal dress worn by members of the public attending judicial proceedings in a civil court, soldiers present at court martial are more often than not wearing camouflage fatigues. Yet, a courtroom is not a combat zone!

Showing respect for the judiciary, the law and the purpose of courts martial proceedings, soldiers in attendance should be required to wear their regulatory service dress uniforms as an equivalent to what is considered to be an appropriate civilian attire for court.


Based on my recent experiences at courts martial, another area of improvement that needs to be addressed concerns punctuality. Best practices followed everywhere else in the Canadian justice system include an obligation for judges - and, obviously counsel - to avoid unnecessary delays, adjournments, suspensions or protracted hearings. Delays are to be used only when there are duly justified grounds. 

          Suffice to say that the punctuality of the judge, whether military or civilian, is a mark of courtesy and respect for all (including litigants, lawyers, soldiers and ordinary citizens).


There is also very little respect for the taxpayer who foots the bill for the unnecessary costs of court martial proceedings.

            Consider that, at a June 2018 court martial in Edmonton, Province of Alberta, the military judge, the prosecutors, counsel for Defense, counsel for the victim, the court reporter, the accused, the victim as well as one of two witnesses travelled to Edmonton to attend the trial. Ironically, most of them also travelled from the Ottawa region where a full military courtroom is available and underutilized. Instead, the taxpayer funded the travel, accommodation, and meal allowances for these several individuals to assemble in Edmonton.  To what end?

           The taxpayer also footed the bill for approximately 40 soldiers and one DND civilian employee in charge of media relations in attendance for the five-day hearing. There were no member of the public present in court. All these soldiers belonged to the same military unit as the accused. Such high attendance level by soldiers is no doubt a consequence of the court martial being held within the confines of their workplace. It seems that, staging a court martial within their working quarters compelled unit personnel to attend and watch the court martial proceedings; the military considering this as a sort of a training exercise, unit productivity be damned!

                                    JUDICIAL INDEPENDENCE IS A CORNERSTONE 
                                  OF CANADIAN JUSTICE SYSTEM

     The perceived independence of military judges is also problematic. 

      According to the principle of judicial independence, judges should not be subject to any influence, surveillance or any other form of direct or indirect coercion that would call into question their independence and impartiality. They must also ensure that their individual beliefs and values ​​do not bias their decisions. Surely, this applies to civilian and military judges alike. 

      They must always be, and be seen to be, objective and impartial.

Yet, judges presiding over courts martial hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values ​​and Ethics and a host of military regulations, orders and directives. The Chief Military Judge who acts as an officer commanding a command is directly responsible to the Chief of the Defence Staff for the control and administration of his unit. As commissioned officers, military judges also have a range of obligations as set out in the Queen’s Regulations and Orders.  

Military judges cannot, therefore, be perceived as independent as they are not immune to disciplinary constraints or military obligations and regulations. Contrast this with the UK and New Zealand, where courts martial judges are civil magistrates with the required institutional and individual independence. As noted by the former Chief Justice of Canada in a speech in May 2001, "it is this independence, coupled with integrity and a commitment to impartial decision-making which makes the judiciary the important institution it is and that will preserve it into the future."


The look and feel of a standard courtroom is quite formal and imposing. The aesthetics of a courtroom are a function of the public's respect for the administration of justice, as well as a manifestation of our understanding of the power that certain signs and symbols may have over people. The judge and lawyers' robes, the hushed intimacy, the ceremonial practices, the standard seating arrangements - these are all symbols of a place where justice is to be reverentially served. The lawyer's role in maintaining decorum is substantial.  At present, the contrast between the 'look and feel' of Courts Martial and civilian courts is stark, and problematic.  Much much-needed modernization is required to bring courts martial to the expected standard.

The administration of justice should take place in a courtroom with an appropriate degree of formality, dignity and respect. However, at present, courts martial operate in a somewhat makeshift way which may undermine important legal traditions.  Courts martial taking place on Canadian soil, most notably in peacetime, should be held in dedicated courthouses located in urban centres that are easily accessible to members of the public as well as the military community. This would help to better ensure compliance with the principles of public proceedings and open courts – an objective that is fully compatible with the need to guarantee military discipline and to facilitate the proper exercise of the profession of arms in defence of these very same rights and freedoms.

          Also, the sooner judges presiding at courts-martial lose their military rank, if not military status altogether, the more likely they will be seen as having the minimum standard of institutional independence which is now being taken for granted for every other member of the Canadian judiciary. 

          Our soldiers expect, are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of. This is presently not the case. There is an urgent need therefore for Parliament to embark upon a review of the Canadian military justice system which will lead to its evaluation and rejuvenation to ensure its harmony with the ordinary laws of Canada and the open courts concept.


Sunday, October 14, 2018

Impending expiration of Pakistan's authority to try civilians in military courts

Reema Omer, writing in The News on Sunday, cautions that Pakistan should not yet again renew the authority of military courts to try civilians. The current constitutional amendment expires in January. Ms. Omer argues:
Parliament’s decision to allow military courts to try civilians in secret, opaque proceedings — which was later endorsed by the Supreme Court — is one of the most glaring surrenders of fundamental freedoms of the people of Pakistan for so-called “security” in our recent past.

Yet, our political leadership is silent about the injustices perpetrated by this parallel ‘justice’ system. It is particularly telling that of the three main political parties, only the Pakistan People’s Party’s manifesto for the 2018 elections expressed concern about military courts, and that too was limited to reforming their procedures to make them more compatible with the right to fair trial. The PTI’s manifesto is completely silent on the question of military courts, and the PML-N lists them as one of their key successes in justice sector reform.

Now that the time has come for military courts’ already extended jurisdiction to expire, any attempt to renew their mandate must be resisted.

We have ample evidence to show extending their jurisdiction once again will not help counter the very real terrorist threat facing Pakistan. Instead, it will bring Pakistan a step closer to permanently incorporating into law what was said to be an “exceptional”, “short-term” departure from the normal legal processes and human rights protections, giving the State an excuse to continue to ignore the actual reasons behind the lack of accountability for terrorism and other serious crime.
Disturbingly, during the nearly four years that Pakistan has had to fix its civilian justice system so there would be no even arguable need for military courts to try civilians, it has taken no steps in that direction. "With less than three months left before these provisions lapse, it is no surprise that any comprehensive reform of the criminal justice system has not even started, let alone be completed."
In the four years they have been in operation, military courts have convicted 419 people for terrorism-related offences, out of which 247 people have been sentenced to death and 172 people have been given prison sentences. At least 56 people have been hanged. Strikingly, only two people have been acquitted.