New Canadian website of interest

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

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

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

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

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

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

Why is this case in a military court?

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

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

To read or not to read

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

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

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

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

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

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

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

Here is a link to the Inquiries home page.

A massacre in Guatemala

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

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

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

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

Why is this case in the military justice system?

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

Les misérables!

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

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

Angelo was detained for close to a week.

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

A major ruling in Uganda

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

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

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

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

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

Recusal watch: Uganda

Should the chairman of the Uganda general court-martial recuse in a current case involving treason charges against a former Member of Parliament? Consider this report from New Vision. Excerpt:

An irked [Lt Gen Andrew] Gutti queried the rationale of [Tonny Nsubuga] Kipoi's submission, yet from the onset of the trial, he (Kipoi) never expressed reservations about the seven member panel.

When [defence counsel retired Maj. Ronald] Idduli conveyed Kipoi's misgivings, Gutti blasted him and threatened to arrest him, saying he was "retired and tired" to the extent that he no longer remembers the law and the court procedures.

"So you are asking the President to appoint another chairperson to try your client? This is crazy," said Gutti.

Idduli was compelled to sit down, in a show of respect to his senior in the military.

He however said that he was not being disrespectful, but only querying procedural impropriety.

Gutti however shot back and mocked him, saying for a number of times, Idduli had petitioned the High Court and the Constitutional Court, challenging Kipoi's trial in the Court Martial unsuccessfully.

Comments welcome (real names only, please). 

Where should these cases have been tried?

The International Commission of Jurists has issued a briefing paper that is critical of the Nepal Army's effort to persuade the country's Supreme Court that charges of human rights violations were properly tried in courts-martial. According to the ICJ's press statement:

“The Nepal Army has sought to overturn the convictions of Maina’s killers by putting forth specious legal arguments that do not hold up under Nepali or international law, or in light of the past decisions of the Supreme Court,” said Frederick Rawski, ICJ Asia Pacific Director.

In the legal briefing, the ICJ sets out (i) Nepal’s obligations under international law and the Nepal Supreme Court’s jurisprudence to investigate and prosecute perpetrators of human rights violations; (ii) the impropriety of jurisdiction by a military court-martial in cases of serious human rights violations; and (iii) refutes the argument that the convictions violated principles of ‘double jeopardy’.

The briefing sets out international law and jurisprudence establishing the Government’s duty to prosecute serious human rights violations as distinct and separate from its obligation to establish the truth, including as part of a transitional justice process.

The briefing comes at a moment when the future of justice for conflict era crimes and human rights violations in Nepal is uncertain.

In July, a draft bill amending the existing legislative framework governing the transitional justice process was criticized by civil society, victim groups and human rights organizations – including in a joint analysis by the ICJ, Amnesty International and Trial International.

While a government panel elicited comments at consultations with victims and civil society, the government never produced a revised draft or conducted follow-up.

“How can the people of Nepal, and particularly conflict victims, have faith in government proposals to press forward on transitional justice when the Nepal Army continues to fight even minimal accountability with disingenuous legal arguments, such as in the case of Maina Sunuwar?” said Rawski.

“The foundation for any process moving forward must be the best interests of victims, a commitment to accountability, and respect for international human rights obligations. This has been affirmed many times over by the Supreme Court,” he added.

The full ICJ briefing paper can be found here. 

Happy Thanksgiving

Movie Review: "A War"

In the fog of war in Helmand Province, Afghanistan, Danish commander Captain Claus Pedersen must choose between saving one of his men or a group of Afghan civilians. He saves his soldier. He then faces a criminal trial back in Denmark alleging that he violated the international humanitarian law principle of distinction by directing his soldiers to fire into a village without positively identifying the enemy.

So goes "A War," a 2015 Danish movie by Tobias Lindholm starring Pilou Asbaek (who will be familiar to "Game of Thrones" fans) as Captain Pedersen.

This reviewer enjoyed a special screening above the GMJR newsroom. The pace was uneven but the authenticity drew me in, with real Danish soldiers, Afghan refugees, and Danish judges playing most of the supporting roles.

The criminal trial was especially fun to watch. Two Danish judge advocates were involved in the investigation stage in Afghanistan before passing the baton to civilian court officials back home in Denmark. Before trial, the defense attorney advised his client that "ethics is not my strong suit" when goading him to untruthfully testify that he had positively identified the enemy in the village in order to secure an acquittal. The prosecutor impressively presented her case. There are a couple interesting twists with witness testimony from soldiers who were on the ground with Captain Pedersen.

Without spoiling the ending, the result of trial will come as no surprise to those familiar with the normal trajectory of domestic trials of war crimes.

Much like "The Deer Hunter," this is a war movie with no obvious heroes, but the humans involved are all too human.

"A War" ("Krigen" in Danish) is available online for free for U.S. Netflix subscribers. Watch the trailer here. 

Sexual offenses in New Zealand

According to this Stuff report, the New Zealand government is considering barring defense counsel from cross-examining complaints in sex cases. A current controversy has arisen over whether the government should be seeking NZ$200,000 in costs in a sexual harassment case that was thrown out because it was time-barred.

Summary trials

The English version of the Barreau du Québec's submission to the House of Commons with respect to Bill C-77 is now available here. Excerpt:

2.6.1 Independence of the decision maker

The bill does not change the fact that it is the commanding officers who determine whether soldiers have committed a service infraction and who impose a sanction, where necessary. It is easy to understand that because of their duty to prevent and punish any misconduct among their troops, particularly any violation of international humanitarian law in the theater of operations abroad,the power to maintain discipline, ultimately through military justice, is closely related to the Command position.

By removing some penal aspects from the current system, the bill reduces the need for an
independent decision maker within the meaning of paragraph 11d) of the Canadian Charter of Rights and Freedoms. That said, compared to the regime applicable to police officers, particularly in terms of ethics, military decision makers are less independent.

The Barreau du Québec therefore suggests the adoption of counterbalancing measures to ensure that commanding officers carry out their tasks as impartially as possible, but without requiring total independence that would undermine the efficiency of the commanding officers in their roles as custodians of discipline among the troops.

(Footnote omitted.)

Slow justice

Time seems to pass slowly in India. We read here of Sood v. Union of India, a decision of the Armed Forces Tribunal holding that unless a court-martial sentence of dismissal directs forfeiture of pension rights, the accused retains his pension (and those rights cannot be denied selectively). But consider this: the court-martial in question occurred in 1999.

Sham proceedings

Reema Omer of the International Commission of Jurists has written this disturbing summary for The Statesman concerning the October decision of the Peshawar High Court overturning the military court convictions of  more than 70 civilians. The decision itself, which has been stayed by the Supreme Court of Pakistan, is not yet available on the High Court's website. Excerpt from Ms. Omer's analysis:

[T]he court questioned the competence of the defence counsel of the accused. Under the Army Act, accused persons have the right to engage private civilian defence counsel at their expense. The court found it odd that only one lawyer from Punjab was engaged by all accused persons. And even though families of a number of convicts had engaged “costly and senior counsel” to challenge their convictions in review before the high court, during their trials they had allegedly “consented” to be represented by the same defence counsel with only five or six years’ experience.

It also expressed concern that it was not clear in what language the counsel communicated with the accused, and whether they were allowed to consult with him confidentially.

It characterised the defence counsel as a “dummy”, and held that the trials were a “complete prosecution show”, where the accused were “denied of their legal and fundamental right” to engage counsels of their choice and present a defence.

On facts like these, it is not hard to see why the High Court took the action it did. 

Congolese military justice and the 2018 Nobel Peace Prize

The 2018 Nobel Peace Prize award to Dr. Denis Mukwege (DR Congo) and Nadia Murad (Iraq) brings the entire world’s attention to sexual violence in armed conflict.  Prof. Helen Durham brilliantly sums up the development of international mechanisms for holding perpetrators accountable in her October 11, 2018 ICRC Humanitarian Law and Policy blog post.

Therein, she aptly notes that “..whilst the impact of the jurisprudence of international courts and tribunals on this issue has been significant, domestic systems are critical to any discussion of accountability, and States must ensure that it is possible to investigate, prosecute and punish wartime sexual violence under their domestic law.”  (Emphasis in original, footnote omitted.)

In this regard, Dr. Mukwege recently praised the strides made by the Congolese military justice system.  See “Lutte contre les violences sexuelles: Dr Mukwege félicite la justice militaire”, Radio Okapi, 5 September 2018.

Only in February 2016, nearly 14 years after its ratification by the DR Congo in April 2002, was the Rome Statute domesticated by amendments to the Congolese Penal Code.  However, domestic prosecution of these most grievous of crimes was not delayed, thanks to the bold initiative of Congolese military magistrates to apply the Rome Statute directly in courts-martial via the DR Congo Constitution’s supremacy clause.  By prosecuting and obtaining convictions in Congolese courts on charges brought directly under the Rome Statute’s substantive provisions, Congolese military magistrates actuated the principle of ICC complementarity to domestic systems, and have spawned a body of domestic Congolese jurisprudence. 

The development of this law is thematically chronicled by Professor Jacques B. Mbokani of the University of Goma, in his study Congolese Jurisprudence under International Criminal Law: An Analysis of Congolese Military Court Decisions Applying the Rome Statute (Johannesburg: Open Society Initiative for Southern Africa, and African Minds, 2016 (French original) and 2017 (English translation)), and his recent follow-on La Jurisprudence congolaise relative aux Crimes de Droit international 2016-2018 (Kinshasa: Club des amis du droit du Congo, 2018 (discussing cases brought since domestication of the Rome Statute)).

A testament to Congolese military justice’s international leadership in actuating ICC complementarity by domestically implementing International Criminal Law, including the repression of sexual violence in armed conflict, is the fact that one of its senior magistrates was selected as the inaugural Chief Prosecutor for the Special Criminal Court for the Central African Republic.

In the mixed post- and ongoing conflict environment of the DRC, military justice is crucial to the Congolese justice sector writ-large.  The lion’s share of overall criminal jurisdiction lies in military courts: they have unique personal jurisdiction over not only the armed forces, but also over all “forces of order” including the police; as well as subject matter jurisdiction over any crime committed with a “weapon of war”, meaning any firearm.  Only since 2013 has legislation been adopted to begin sharing jurisdiction over Rome Statute-defined crimes with civilian courts, and the civilian criminal justice sector looks to the military for guidance, training and precedent in exercising its newly acquired concurrent jurisdiction.

Though the gains realized by Congolese military justice these past 10+ years have been great, continued support from the international community remains critical as the Congolese continue to build a foundation for their criminal justice system throughout the vast territory of the DRC, in order to ensure enduring accountability for the most grievous of crimes, including wartime sexual violence.

David A. Buzard, Esq.

Norfolk Virginia | Kinshasa DR Congo

http://www.linkedin.com/in/davidbuzard

New contributor

Global Military Justice Reform is delighted to welcome its newest contributor, David A. Buzard. Watch for his posts!

Bots R Us

It's Bot City this morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza: 135 hits from Malaysia in the last two hours.

Beaudry fallout

The government has asked the Supreme Court of Canada to stay the recent decision of the Court Martial Appeal Court in the Beaudry case. The motion remains under consideration, but in the meantime charges in two cases have been withdrawn from the court-martial without prejudice. David Pugliese reports on the matter here for the Ottawa Citizen. No word on the other 38 cases that the government says could be affected by Beaudry.

The charge in one of the two dropped cases dates to 1999.

Old misattributions die hard

He didn't say it.

Writing in Brighter Kashmir, Nilesh Kunwar observes:

Military courts were created in Pakistan after the Peshawar Army Public School (APS) terror attack for speedy trail of terror suspects. Since January 2015, these courts have convicted 346 people, awarding death sentence to 196 and imprisonment to 150 persons. Only one person has been acquitted. An ironical twist clearly reveals the motivated approach of military courts. With no other evidence except [Kulbhushan] Jadhav’s confession, a Pakistani military court took only 14 months to sentence him to death. But Jamaatul Ahrar and (JuA) and Tehrik-e-Taliban Pakistan (TTP) spokesperson Ehsanullah Ehsan who has already accepted responsibility for numerous terror strikes including the Peshawar APS attack that killed 144 students and has been in Pakistan army’s custody since April 2017, hasn’t even been charge-sheeted as yet! 

After seeing the slipshod way in which military courts are functioning in Pakistan, even the most die-hard Pakistan army fans will start agreeing with Groucho Marx’s view* that “Military justice is to justice what military music is to music!”

* Nope. It was Georges Clémenceau. The author must have missed this 2015 post. (Footnote added.)

Russian military court reorganization

Russian President Vladimir Putin has approved legislation that reorganizes and renames the country's military courts. The Russian Legal Information Agency has the story here. The legislation was enacted in order to comply with an earlier constitutional law.

Remilitarization and military justice

Professors Andrew G. Reiter (Mt. Holyoke) and Brett J. Kyle (University of Nebraska--Omaha) have a timely and important essay on the Jacobin website titled Latin America's Re-Militarization. They conclude:

To stem the tide of legal empowerment of the military and reverse these recent setbacks, human rights activists will need to be increasingly vigilant and work to supplant the security narrative that has dominated recent elections in countries such as Guatemala and Honduras, and led to the rise of populist leaders on the right. A wave of leftist politicians rose to power in the past by promising redistribution of wealth and anti-poverty plans — the policies necessary to address the underlying causes of the recent rise in crime. The recent election of Andrés Manuel López Obrador in Mexico, who ran on an “Abrazos, no balazos” (hugs, not gunfire) platform perhaps is a welcome sign.

Most importantly, this will be a major test for the civilian judiciary in the region. Judicial reform has been at the forefront of domestic NGO work and international donors over the past three decades. It will largely be for naught if civilian courts cannot retain jurisdiction over the worst human rights abuses committed by the armed forces.

Constitutional and supreme courts will have to rule on these laws, possibly being put in the position of having to make judgments that go against the wishes of politicians, the military, and even popular opinion. Success will also depend on the Inter-American Court continuing to be the last safeguard for democracy in the region, providing domestic courts with legal rulings to reinforce their positions.

A centennial

Reinstate military courts in Estonia?

A former commander of the Estonian Defence Forces has proposed that the country reinstate military courts and have dedicated lawyers working in the Office of the Prosecutor General. The context of the proposal is described here. Former defence ministers are split. The Justice Ministry is opposed:

The ministry commented that introducing a special court for the military would not make sense at this point in time.

Deputy secretary-general for legal policy, Kai Härmand told ERR that a step-by-step specialisation of judges is already happening anyway. "We have judges who specialise in juvenile crime, or in intellectual property matters. We've approached military issues the same way. What matters here isn't to have a separate institution, but that we have people who get the necessary training, but at the same time are entirely regular judges," Härmand said.

"A judge doesn't need to be a medical doctor to decide in cases concerning the quality of drugs. Knowledge of these specific areas can be gained where needed by including specialists and experts," Härmand added.

Whether or not the proposal gains traction, it raises some basic issues and bears watching. 

What does U.S. militarization of the border mean?

In February 2018, former Brazilian President Michel Temer, gave command over law enforcement in violence wracked Rio de Janeiro to Army General Braga Netto, Commander of the Eastern Military division in Brazil, which includes Rio.  This was the first time since the end of the military dictatorship and the since the promulgation of the 1988 Constitution that such a federal intervention into law enforcement was triggered in Brazil.

In October 2018, US President Donald Trump, threatened to send the US military to close down the southern border if Mexico failed to halt the caravan of migrants fleeing violence in their countries (Honduras, El Salvador and Guatemala) and who the US President says are threatening to "invade" the US.  Between 2014 and 2016, the NGO Casa Alianza reported that approximately 2,300 people under the age of 23 were killed by violence in Honduras.  That figure has increased by 53% since Juan Orlando Hernandez became President.

In April 2018, President Trump announced that we would be "guarding our border with the military" until Congressional support for the building of a wall could be secured.  At that time members of the National Guard were deployed under state authority.  President Trump has now ordered active-duty military forces (Title 10 forces) to the US-Mexican border. Just Security has analyzed what sort of support the military can provide.  Unlike Title 32 members of the National Guard, Title 10 forces (active-duty military) under federal authority, are prohibited from taking a direct role in law enforcement activities by the Posse Comitatus Act of 1878.

The military border mission, named Operation Faithful Patriot, only authorizes indirect military assistance to law enforcement. Any force or physical violence or use of weapons is prohibited.

Military justice reform in the next Congress

Americans went to the polls today. (Some states are still at it.) Not to predict the outcome -- we'll know it in a few hours -- but if the House of Representatives changes hands, there will be new leadership in the body's committees, including the Committee on Armed Services. Might this lead to serious House consideration of legislation along the lines of Senator Kirsten Gillibrand's Military Justice Improvement Act?

Habeas bottus

Bring on the bots! Blogger reports that we have had 134 hits from Malaysia in the last two hours. Who knew?

The Niger incident

Thomas Gibbons-Neff of The New York Times has filed this detailed appraisal of the steps taken (or not taken) against U.S. military personnel in the aftermath of a patrol that ended badly in Niger. Bottom line:

In the end, after more than a year of investigations, the American military punished those involved in the ambush for a series of small-unit training choices before the mission.

Military officials did little to examine the ramifications of the mission these troops were asked to undertake in western Africa, or how they were asked to accomplish it. The more senior officer who ordered the fateful mission, over the objections of the officer leading the team on the ground, went undisciplined and will continue in his career.

Legal awareness camps for the military community in the offing in India

Hon. Virender Singh
Chairman
Armed Forces Tribunal

The Chairperson of the Armed Forces Tribunal, Justice Virender Singh, who is a former Chief Justice for the High Court of the State of Jharkhand in India, has initiated the process for holding legal awareness camps for military veterans, military widows and their families regarding the various schemes and entitlements available to them. He has proposed that legal awareness should be given a fillip in the defence community, starting with the North Eastern regions of India, in conjunction with the Department of Ex-Servicemen Welfare of the Ministry of Defence, which is expected to fructify soon.

Justice Singh has been a longstanding proponent of Legal Aid Services and was recently conferred with the Capital Foundation National Award in recognition of his outstanding contribution in the field at Delhi. He has remained associated with the Legal Services Authority while he was serving as a High Court Judge in the State of Jammu & Kashmir and then as the Chief Justice of the Jharkhand High Court where he was the Patron-in-Chief of the Jharkhand Legal Services Authority.

Legal Services in India refers to provisioning of Legal Aid to the needy who cannot afford legal assistance. Legal Services Authorities are statutory bodies created by legislative action and the system draws its spirit from Article 39A of the Constitution of India.

Canadian legislative hearing on Bill C-77

The Standing Committee on National Defence of the Canadian House of Commons conducted a hearing on November 1, 2018 with respect to Bill C-77. The measure would, among other things, address summary trials in the armed forces. Bar of Quebec witnesses Siham Haddadi and Pascal Levesque raised concerns about that part of the bill, suggesting that it be postponed and reconsidered because it underestimates the bill's impact on the rights of military personnel.

The Standing Committee's proceedings can be found here.

A difference of opinion

Asharq Al-Awsat reports that:

The families of Algerian senior officers, who have been in prison for the past 20 days, have protested the military court's rejection to appoint lawyers for them.

The military court grants the judge the right to reject any lawyer at the start of a trial. But it doesn’t allow him to ban a defendant from choosing a lawyer.

A judicial official, speaking on condition of anonymity, told Asharq Al-Awsat that the families of the five generals detained in connection with a corruption case are dissatisfied with the decision of the judge at Blida Military Court.

According to the official, the judge has claimed that the defendants don’t need lawyers at this stage because the investigation is still at its beginning. . . . 

The officials face charges of “illicit enrichment” and the use of their positions for personal gains.

U. S. military law requires that a suspect placed in pretrial confinement shall have a hearing on whether the pretrial confinement should continue and has the right to counsel for that hearing. So there appears to be more than one difference of opinion here.

See generally Martin Schoenteich, Why the Overuse of Pretrial Detention is an Overlooked Human Crisis, Open Society Foundation, 12 Sept. 2018.  The article speaks more broadly than military pretrial detention.  But it's an interesting view of the topic of pretrial detention and how it affects the accused.

Not so fast

A two-judge bench of the Supreme Court of Pakistan has ordered the government not to release the 73 civilians whose military court convictions were recently overturned by the High Court of Peshawar. The Express Tribune has the story here. "Additional Attorney General Sajid Ilyas Bhatti appeared before the bench and stated that the cases which have been dealt under Army Act could not be considered through ordinary laws, adding that the PHC while deciding the matter overlooked certain principles."

Is there a workaround?

Lt Gen (Ret) H S Panag

Lt Gen (Ret) H S Panag, a former member of the Armed Forces Tribunal, argues here that the armed forces can readily adjust to the Supreme Court of India's recent rulings decriminalizing adultery and homosexual acts. Writing in The Print, he reports that--

the military can still deal with sexual relations in general, which impinge on the moral values and discipline of the armed forces, under the provision of Section 45 and Section 63 of the Army Act and their equivalents for the other two services.

Section 45 states, “Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”

Thus, sexual offences committed by officers, junior commissioned officers and warrant officers can be dealt with under this Act.

Similarly, Section 63 has vast scope and can deal with all types of sexual offences. It states, “Violation of good order and discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”

Violation of regulations for the Army, and formation/unit orders are punished under this Act. Necessary amendments can be made to the regulations for the Army and unit/formation orders can be published to prohibit sexual relations that impinge on the moral code of conduct of the armed forces. This can be done directly or indirectly. For example, consensual sex with an adult civilian is not an offence per se, but violation of unit orders forbidding the entry into a civilian house or certain areas can be punished under this Act.

Parliamentarian waives immunity

Yassine Ayari, an opposition members of the Tunisian Parliament, has waived his parliamentary immunity in a case in which he was convicted by a military court even though he is a civilian, according to this report. The basis for his prosecution was a 2017 Facebook post that was critical of the Army. He was originally sentenced to 16 days in jail, but that was increased to three months after the government appealed. Mr. Ayari represents Tunisians who live in Germany.

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

Conscientious objection recognized in South Korea

The South Korean Supreme Court yesterday held that there is a right to conscientious objection and that young men cannot be incarcerated for refusing to serve for reasons of conscience. Most of those who are affected are Jehovah's Witnesses. The Washington Post has details here. Under a separate decision last June by the country's Constitutional Court, arrangements for alternative service must be in place by next year.

Ken Watkin writes in Just Security

Brig. Gen. (Ret) Kenneth Watkin has written an thought-provoking piece for Just Security on "accountability fatigue." His conclusion:

What is required is a balanced approach that recognizes both human rights law and IHL apply, and that the armed forces themselves have an important, indeed, essential oversight role to perform. It is a role that can be enhanced by taking steps to increase confidence, both within and outside the armed forces, regarding the independence of investigatory bodies. Other States have addressed issues of independence by creating a statutorily empowered uniformed Director of Military Prosecutions, setting up joint civilian/military inquiries, and even appointing foreign observers. As stated, the problem is not human rights law, it is the interpretation of that law in a manner that reflects the needs of all stakeholders operating in a very complex and challenging security environment. [Emphasis added.]

Some countries, notably including the United States, persist in having commanders "own and operate" the military justice system, including the critical charging/disposition power even for major offenses. Query: how important is it that a director of military or service prosecutions be a uniformed officer?

"But enough of praise"

Global Military Justice Reform's prolific contributor Major (Ret) Navdeep Singh has written a two-part article for Bench & Bar, available here. Surveying a batch of cases that go back years, he makes the point that the Indian Ministry of Defence's scorched-earth litigation strategy -- in essence, never giving an inch and at times hiding the ball -- is "misdirected, highly adversarial and sadistic." Excerpt:

The Government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers.

While we, the ones dealing with military litigation, shall remain, waiting for Godot!

Why wait for the decision?

Iqbal Khan has written this op-ed concerning the Peshawar High Court's decision overturning 74 military court convictions. Some of his points are well-taken, such as why, after several years, Pakistan's government has still not improved its civilian criminal courts, whose deficiencies were the reason for allowing military courts to try civilians in the first place. Some of his other points are obviously questionable, such as blaming defense counsel for doing their job or faulting the High Court for focusing on "technicalities." One also wonders how anyone can write about the decision if, as he indicates, the court's actual full opinion has not even become public.