Saturday, September 28, 2019

Military justice update from Singapore

This revealing insight on military justice in Singapore was just published by the Military Justice Project, an initiative by the National University of Singapore (NUS) law faculty's criminal justice club.

The Singapore Armed Forces Act arose from exigency as the young nation resisted foreign intervention, and reflects a strong skepticism of outside meddling. On the other hand, the world tends to look towards Singapore as a model example in areas from diplomacy to economics, so trends in Singapore are worth watching. 

Congratulations to NUS Law's Military Justice Project for keeping us informed. Congratulations too to NUS Law's first-place winning team in the 2019 Nuremberg Moot Court Competition in international criminal law (ICL). The growing field of ICL is closely connected to military justice.  

Friday, September 27, 2019

A word of thanks

The editor would like to thank the Global Military Justice Reform contributors for helping make the blog the go-to site for information and commentary on this critical topic. The newsworthy developments keep coming, often very unpredictably, and at times in languages that neither the editor nor "Google translate" can manage.

So, from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, thank you, thank you, thank you.

Thursday, September 26, 2019

Is the Khadr logjam breaking?

Under pressure from the U.S. Court of Appeals for the District of Columbia Circuit, the Court of Military Commission Review is apparently moving forward with adjudication of Omar Khadr's appeal of his 2010 military commission conviction. He's in Canada pursuant to a deal. Does that mean he's a fugitive whose appeal can be put on hold indefinitely? Stay tuned?

The Globe and Mail has the story here.

AFT decision overturned by Supreme Court of India

The Supreme Court of India on Wednesday overturned a decision of the Armed Forces Tribunal. At issue in Union of India v. Yadav, Civ. App. No. 7603 of 2019 (India Sept. 25, 2019), was whether the AFT erred in reducing the gravity of a censure issued to an Army lieutenant colonel as a result of contact with a foreign national. The officer had been punished by proceedings before a Staff Court of Inquiry, rather than a court-martial, and awarded a "Severe Displeasure (Recordable)." He contended, among other things, that the punishment was excessive and not commensurate with the facts. The AFT set aside the action and remanded for reconsideration of the sanction -- provided that "Severe Displeasure (Recordable)" was off the table. That would have permitted two sanctions: Severe Displeasure (Non-Recordable) or simple Displeasure. The government appealed.

From the Supreme Court's judgment:
22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.

23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.
The court examined and rejected the reasons the AFT gave for overturning the disciplinary authority's action. "[J]ust because the competent authority chose to dispense with the disciplinary action of [a] Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal." ¶ 26, at p. 25.`

The case took a long time:

Misconduct, 2009-11
Staff Court of Inquiry, 2013
Competent Authority decision on Staff Court of Inquiry, May 10, 2013
Reprimand, Oct. 5, 2013
Competent Authority decision on officer's statutory complaint, Feb. 26, 2014
Application to AFT, 2014
AFT decsion, July 12, 2016
Civil Appeal filed, 2017
Supreme Court decision, Sept. 25, 2019

Kampala High Court hears jurisdictional challenge

The Civil Division of the High Court of Uganda at Kampala is hearing a challenge to the general court-martial's jurisdiction over civilians who possess firearms, according to this New Vision account. Excerpt:
[Sam] Buchanan asserts that GCM, like other military courts, is an organ of the army and a Quasi-judicial body with limited jurisdiction intended to ensure operational efficiency and discipline of officers and militants of UPDF but not vested with jurisdiction to try criminal cases.
Global Military Justice Reform knows of no other country that predicates court-martial jurisdiction over civilians on weapon-possession. The African Charter of Human and Peoples' Rights has been interpreted to exclude all military court jurisdiction over civilians. Human rights jurisprudence in general strongly disfavors such jurisdiction.

Wednesday, September 25, 2019

Rocket docket at the AFT

The Armed Forces Tribunal of India has a huge backlog. In a recent effort to make some progress, the court's Chandigarh bench decided 250 cases in two days. Details here. How many minutes of judicial attention did the average case get? Were mistakes made due to haste?

Where should these cases be tried?

A Marine Corps court-martial for human smuggling? Seems like something more appropriate for federal district court, no? Details here.

Civilians face military court in Algeria

An Algerian military court is trying, among others, two civilians, one of whom is the brother of a former president. Details here. Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Tuesday, September 24, 2019

The end of military tribunals for the punishment of crimes in the Dominican Republic

In a judicial action for the protection of his constitutional rights (writ of amparo), Luis Francisco Antonio Vasquez Reyes, the captain of a Dominican Republic naval frigate, alleged that in the context of  military disciplinary proceedings, a Court of First Instance of the Armed Forces and the National Police ordered his arrest as well as a a police search and deprived him of his liberty for three months, which he submitted violated his fundamental rights. In addition, he alleged the non-existence of this Tribunal because it was not established by the Legislative Branch of Government, and that the procedural norms and jurisdiction used and applied against him have been expressly derogated by the Code of Criminal Procedure.

Article 57 of the Code of Criminal Procedure states that the ordinary civilian courts have exclusive and universal jurisdiction over all acts and omissions punishable under the Criminal Code, without regard to the nature of the accused, including members of the Armed Forces and the National Police, even when the punishable acts were committed in the exercise of their functions and without prejudice to the strictly disciplinary powers of the military corps to which they belong.

The First Instance Court held on February 14, 2019 that the 2004 law on the implementation of the new Code of Criminal Procedure derogated all the procedural norms for the criminal proceedings against members of the armed forces and the police but maintained the substantive norms.  The amparo presented by Mr. Vasquez Reyes against the Ministry of Defense of the Dominican Republic was rejected by the First Instance Court because it found that the military court had jurisdiction over infractions committed by members of the military.

The Constitutional Court, in a judgment issued on September 16, 2019, decided in favor of Mr. Vasquez Reyes in his appeal of the lower court decision. (The Ministry of Defense submitted its response to the appeal out of time so it was not taken into consideration by the court.) He was being tried for the alleged theft of arms from the arms deposit, a crime. The court noted the special constitutional relevance of the case in that it permitted the Tribunal to refer to the impossibility of administrative military disciplinary bodies hearing disciplinary proceedings involving criminal actions, since this is prohibited by Article 254 of the Constitution of the Dominican Republic. Since military courts were abolished by the Code of Criminal Procedure in 2004, they no longer exist in the Dominican judicial system. They now only have administrative disciplinary functions and cannot prosecute crimes.  The military criminal courts of the past no longer exist.

The decision of the Constitutional Court, Sentencia TC/0350/19 (in Spanish) can be found here

Military justice annual reports

The military justice reports of the U.S. armed services for FY2018 are now available here on the website of the Joint Service Committee on Military Justice. These reports are required Article 146a, UCMJ.

Sunday, September 22, 2019

Investigating LOAC violations: war crimes and more

The Geneva Academy, along with the International Committee of the Red Cross (ICRC), just published the fruits of their five-year labor: a comprehensive document providing non-binding guidelines regarding how States should investigate Law of Armed Conflict (International Humanitarian Law) violations, including war crimes and and lesser violations of both treaty and customary international law applicable during armed conflicts. Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Practice is found here.

There are numerous reasons why it is so important that States discharge their international legal obligations to repress and suppress serious violations of the Law of Armed Conflict:  to better achieve the humanitarian goals of the law itself; to address complementarity as a threshold jurisdictional issue for the International Criminal Court; and to more effectively counter propaganda leveraging how States deal with allegations of war crimes, to name just a few. Given the crucial nature of such obligations, this document will ideally play an important role in assessing whether States have credibly discharged their war crimes accountability obligations. Considering the expertise and effort that contributed to this set of Guidelines, it will almost certainly be used as a baseline to critique the credibility of States' accountability efforts. This means that these guidelines will likely contribute positively to the reality and perception of credible accountability process. However, there is also risk that these Guidelines can undermine the perception of credibility if they set an unrealistically high standard for what is appropriate – if they set a standard that is not legally required. 

This work is surely one of careful, well-developed legal and policy analyses, given that it was crafted by three eminently-qualified and well-respected authors (Jelena Pejic from the ICRC, for example, drafted the immensely important ICRC work on procedural safeguards in armed conflict detention in 2005, a document that assisted the United States in improving its detention practices), and I greatly look forward to analyzing it in-depth. Jelena is joined by Professor Noam Lubell, University of Essex and The Geneva Academy of International Humanitarian Law and Human Rights, as well as Claire Simmons, also from Essex and The Geneva Academy, both widely-respected international law scholars (for example, Dr. Lubell's 2010 book, Extraterritorial Use of Force Against Non-State Actors, published by Oxford University Press, substantially advanced the legal discourse regarding such uses of force).

However:  most such documents (the ICRC's 2008 DPH Interpretative Guidance, ahem), often include a controversial recommendation or two, perhaps a mischaracterization of a statement as representing lex lata instead of clearly stated as part of the authors' lex ferenda wish-list. From my perspective as a former Judge Advocate military officer, one who worked extensively with the ICRC from 2006-2010 regarding, inter alia, the strength and credibility of U.S. Central Command’s (and subordinate units') many investigations into allegations of LOAC violations in both Afghanistan and Iraq, these Guidelines may include a few such lex feranda concepts that could be misconstrued as lex lata, particularly by those intentionally trying to portray States as failing to meet their legal accountability obligations. For example, the Guidelines' assertion that "It is submitted that States must have a law enforcement agency outside the chain of command (e.g., the military or civilian police), that conducts investigations into suspected war crimes committed by members of the armed forces in order for criminal investigations to be independent and impartial and be seen as such" strikes me as one such lex ferenda moment. Perhaps the “it is submitted” language indicates otherwise – that this is more of a recommendation than an assertion of existing legal obligation. But this is certainly an issue I hope States’ legal advisors and scholars will eagerly analyze and critique. 

Substantively, even a cursory review of these new Guidelines reveals that one of the project's main contributions is the recommendation that even when a State conducts a thorough, appropriate investigation into allegations of war crimes and subsequently absolves actors of individual criminal responsibility, a State should also consider any systemic failures that may have contributed to the results at issue. The document's integration of systemic reviews into what counts as an appropriate investigation will surely be one prompting discussion and perhaps regulatory changes going forward. Again, as a former Judge Advocate military legal officer, the importance of such systemic review seems almost self-evident: we should expect all commanders to possess and manifest a genuine interest in diagnosing ailments in a unit’s training, culture, and leadership that contributed to incidents that come anywhere close to suggesting members of the unit committed war crimes. That this is not already universal customary practice is more than troubling. 

Meanwhile – congratulations to all involved in this worthy endeavor, one that will surely help positively advance the worthy goals of the Law of Armed Conflict.

Friday, September 20, 2019

Demoralizing the army

That seems to be a crime in Algeria, for which a civilian is currently being prosecuted in a military court, contrary to human rights standards. Amnesty International mentions the case here.

Thursday, September 19, 2019

Court-Martial for Sudanese Militia

Musa Hilal and his followers' court-martial was postponed until Monday, September 23. Attorneys appointed by Hilal's family were prevented from entering the courtroom at the general command in Khartoum.  The attorneys are attempting to argue the court-martial of Hilal, the former Janjaweed militia leader, is improper because he was never a member of the Sudanese military. The attorneys have failed to get the Court of Appeal to rule the court-martial illegal, and have a petition pending at the Constitutional Court. On Sunday, protesters demanded Hilal's release, contending the court-martial can't continue after Omar al-Bashir's ouster. Jurisdictional questions aside, hopefully the Sudanese can avoid the inefficiency, and apparent lack of impartiality, other countries have encountered while trying non-military members in a military tribunal.

Trial of civilians by military tribunals.

Cameroun lawyer, Me ALice Nkom writesThe jurisdiction of the military tribunal explained to mychild” of the Tribune. In her article, KNom  explains to her child why in Cameroon military tribunal cannot try civilians. She notes: “Cameroon has ratified international agreements that exclude civilians from the jurisdiction of the military court” including “the Directives and Principles on the Right to a Fair Trial and Legal Aid in Africa, issued by the African Commission on Human and Peoples' Rights, which state that "under no circumstances may military courts , try the civilians”

Nkom also makes the point that one can not talk about "military" justice, and apply it to civilians. She reminds the reader that military justice was instituted, only to repress the behaviors which the military consider reprehensible in their ranks. A civilian therefore can not commit a "military" offense because one of the constituent elements of the military offense is the military status which necessarily entails a military mentality. In closing she adds that military courts are very often located in military barracks, which by definition are closed to the public. The civil defendant therefore runs the risk that his rights will be violated without witnesses liable to denounce these violations.

Wednesday, September 18, 2019

Coming soon, for your military justice bookshelf

From Carolina Academic Press:

Military Justice
Cases and Materials
Third Edition
by Eugene R. Fidell, Elizabeth L. Hillman, Joshua E. Kastenberg, Franklin D. Rosenblatt, Dwight H. Sullivan, Rachel E. VanLandingham

Forthcoming December 2019 • casebound

ISBN 978-1-5310-1647-0
e-ISBN 978-1-5310-1648-7
2019 Teacher's Manual forthcoming

Tags: Government/National Security Law, International Law, Military Law

There are already many articles and books about military justice, but the third edition of Military Justice: Cases and Materials is different. Rather than offering a staid recitation of military court rules and cases, this volume gives law professors a powerful tool to introduce students to military justice while also deepening their understanding of criminal law and procedure, comparative law, international law, and constitutional law. At a time of ongoing combat operations and high-profile courts-martial, students and professors now have a new framework through which to analyze and evaluate worldwide military justice.

This casebook facilitates a deep understanding of military justice, its underlying principles, and lessons provided by international norms and comparative analyses of foreign systems. The book’s examination of the U.S. court-martial system allows students to explore the role and operation of military justice and the principles of a democratic society. In an era of worldwide deployments, multi-national operations, and global as well as domestic terrorism, the book illuminates the interconnectedness of military justice systems through a far-ranging collection of judicial opinions, statutes, regulations, commentaries, and scholarship. While the materials presented draw heavily from the United States, most chapters also present materials from other jurisdictions to enhance students’ appreciation of both the American experience and the availability of alternative approaches to military discipline, accountability, and punishment.

The book begins with an overview of the nature of a military justice system and its component parts. Chapter 2 explores the central issue of the commander’s role in military justice while Chapter 3 addresses the related concept of summary discipline. Chapter 4 then assesses professional responsibility rules for military lawyers.

The next group of chapters examines the fundamental question of who may be tried by court-martial, the offenses that permissibly fall within a military justice system’s ambit, and unique military crimes. An analysis of how the obligations of military service might alter the protection of fundamental rights follows before the book turns to the military judges and jurors who comprise the court-martial, the rules of evidence military judges apply, and the punishments a court-martial may impose. The system’s review and appellate procedures are then analyzed, followed by a group of chapters assessing the special contexts in which military justice systems operate. First comes a broad appraisal of the challenges a military justice system faces during combat and peacekeeping operations, then a consideration of the role of military commissions, with a special emphasis on the post-9/11 military commission system the United States operates at Guantanamo Bay.

The book’s final chapter gives students a timely glimpse into the changes that lie ahead by focusing on the critical processes of legal reform and globalization.

Complimentary Copy Request

If you are a professor teaching in this field you may request a complimentary copy [from CAP].

Tuesday, September 17, 2019

Is an hour's AWOL due to oversleeping a minor offense?

Not necessarily, in Spain's Guardia Civil. A recent Central Military Court case is reported here.

One costly prison

Trust Carol Rosenberg of The New York Times to crunch the numbers on what Guantánamo costs American taxpayers. You'll be amazed.

The Armed Forces Tribunal upholds appointment of the Chief of Naval Staff (India)

The Armed Forces Tribunal (AFT) which deals with employment related issues of the military, besides appeals from courts martial, has upheld the appointment of the Chief of the Indian Navy which was challenged by an officer senior to him alleging that his supersession was unjust.

The AFT has held that seniority cannot be the sole criterion of making such appointments and the Government has the right to look into other aspects also, and since the reasons for making that choice were clearly available and recorded on file, the tribunal found no reason to upset the decision of the Government.

A news report on the subject can be accessed here.

Sunday, September 15, 2019

International military law

Major-General Yusuf Ibrahim Shalangwa, Director of Nigerian Army Legal Services, was elected today new President of the African Military Law Forum (AMLF) in San Remo, Italy.
 Shalangwa is a member of the Nigerian Bar Association, African Bar Association, International Bar Association.
“He is a seasoned military legal adviser and has attended several seminars, workshops and conferences on different aspects of military and civil laws both in and outside Nigeria.
“Among such international conferences and workshops included, Law of Armed Conflict in Spiez, Switzerland and Legal Aspects of Counter-Terrorism at the Kofi Anan International Peace Keeping and Training Centre, Accra, Ghana.
“He is also the Chairman, Armed Forces and Security Committee of the African Bar Association and has been a member, Board of Directors/Governing Council of many
Nigerian Army Legal/Corporate entities,’’ Musa said.
Note: The fifth iteration of the African Military Law Forum on “The Role of the Legal Advisor in Peace Support Operations” will take place at Villa Ormond, official seat of the Institute, from 10 to 12 September 2019.

Thursday, September 12, 2019

Judge James Robertson dies at 81

Hon. James Robertson
James Robertson, a retired federal district judge in Washington, D.C., has died at age 81. Judge Robertson was the trial judge in Hamdan v. Rumsfeld. Before attending law school, he served in the Navy, an experience that may have influenced his ruling in Robinson v. Dalton, which involved the "vessel exception" to the right to turn down captain's mast under Article 15, UCMJ. The D.C. Bar, of which he had been president, ran this obituary.

Guantánamo whistlebower claim

How much does Guantánamo cost the taxpayers? A retired Air Force colonel has filed a whistleblower complaint. NPR has the story here. Excerpt:
When NPR asked in April for the annual cost of Guantánamo's military court and prison, the Defense Department initially responded with a figure of $180 million a year. Three months later, it revised that number to $380 million a year. That does not include the $60 million annual expense of operating Guantánamo's naval base or the salaries of military personnel, including the 1,800 guards overseeing the detention center's prisoners.
Add the Pentagon's updated tallies to historical figures it has given Congress, and the total cost of Guantánamo's court and prison has exceeded $6 billion since 2002.
[Phil Cave got here first; see post below this one.] 

Wednesday, September 11, 2019

Sorta military justice--"Guantánamo Court And Prison Have Cost Billions"

NPR has an interesting piece on the costs apparently associated with the Military Commissions at Guantanamo Bay.
The U.S. military court and prison at Guantánamo Bay, Cuba, have cost more than $6 billion to operate since opening nearly 18 years ago and still churn through more than $380 million a year despite housing only 40 prisoners today.
Included in that amount are taxpayer-funded charter planes often flying just a few passengers to and from the island; hundreds of thousands of dollars' worth of government electronic devices intentionally destroyed each year due to spills of classified information; some Pentagon-funded defense attorneys billing about half-a-million dollars a year; and total legal costs of nearly $60 million annually even though Guantánamo has had only one finalized conviction.
Criticism of that spending comes even from inside Guantánamo. A former top attorney there has filed a federal whistleblower complaint alleging "gross financial waste" and "gross mismanagement," NPR has learned.
The piece reports that,
Some lawyers say the cases are progressing toward trial, even if imperceptibly slowly. But the court suffered a setback in April, when a federal appeals court threw out more than two years of one military court judge's decisions after it was revealed that he had been pursuing an immigration judge job with the Justice Department. This was at the same time he was overseeing a Guantánamo case being prosecuted by the Justice Department. That conflict of interest resulted in his Guantánamo rulings dating back to November 2015 being erased.
Here's a question. Can the new trial judge effectively minimize the doom and gloom flowing from the the federal court decision in Al-Nashiri ?

  • The new judge has the already filed pleadings and rulings to study.
  • The parties should have the opportunity to supplement the prior filings.
  • The parties should have the opportunity to reargue the motions.

Could not the new judge review all of the prior filings and prior rulings and make a considered decision essentially adopting the same ruling as his own? Those new rulings would be subject to appeal in the normal course of appellate review. And, if the prior rulings were legally erroneous the new judge might be able to take corrective action thus mooting an appellate issue.

Tuesday, September 10, 2019

Sudan: former Darfur Janjaweed leader Hilal faces court-martial in Mogadishu

All Africa brings us a report on court-martials in the Republic of Sudan.
A military court in Khartoum resumed proceedings on Tuesday to try former janjaweed leader Musa Hilal, who was detained two years ago, along with hundreds of his supporters.
The Revolutionary Awakening Council (RAC) which was founded by Hilal, said in a statement on Monday that the Council was surprised to hear that morning that their leader and his detained followers were summoned to appear before the military court without warning.
Hilal was initially arraigned by the military court on April 30 2018.
The RAC statement questions how it is possible that a court martial will try Hilal and his comrades while they were detained during the regime of ousted President El Bashir.
. . .

In May 2018, the Darfur Bar Association criticised the military trial of Hilal, "which is being conducted without taking into account the principles of a public trial". According to the Darfur lawyers at the time (prior to regime change), Hilal's "trial is a violation of the fair trial standards enshrined in the Sudanese Constitution and the law, which is casting doubts on its fairness and integrity, regardless of the acts attributed to Musa Hilal and his affiliates".
Here is a link to the Constitution of 2011. Section 152 has a number of interesting provisions. Section 19 discusses "Fair Trial." The Interim Constitution of 2005 had something similar to Section 19. Wikipedia has the following entry.
The temporary de facto Constitution of Sudan is the Draft Constitutional Declaration, which was signed by representatives of the Transitional Military Council and the Forces of Freedom and Change alliance on 4 August 2019. This replaced the Interim National Constitution of the Republic of Sudan, 2005 (INC) adopted on 6 July 2005, which had been suspended on 11 April 2019 by Lt. Gen Ahmed Awad Ibn Auf in the 2019 Sudanese coup d'état.
 When there is political and social instability--how often does the government resort to the military and military trials for those not normally considered a member of the armed services?

Is it ever appropriate to subject civilians to military justice proceedings? The U.S. had this question when Article 2, UCMJ, was amended and a number of civilians accompanying the military in Iraq faced court-martial. Is this an acceptable exception to a rule against prosecuting civilians at a court-martial?

What do the candidates think?

Not military justice, but . . . Charlie Savage of The New York Times has asked the presidential candidates for their views on (among other things) the use of military force -- targeting or detaining -- against Americans or within the country. The answers are fascinating.

Monday, September 9, 2019

Transformation of civil offences into services offences consistent with right to jury

That's the headline from Law Times (Canada).
Accused persons, members of Armed Forces at relevant time, were charged with service offences under s. 130(1)(a) of National Defence Act (Act). All but one accused unsuccessfully asserted their right to trial by jury under s. 11(f) of Canadian Charter of Rights and Freedoms (Charter) having argued that military exception in s. 11(f) of Charter did not apply. Accused also argued that since s. 130(1)(a) of Act which does not provide for a trial by jury, brought them within military justice system, was inconsistent with their s. 11(f) Charter right. Court Martial Appeal Court dismissed accuseds' appeals in Stillman and Déry but allowed appeal in Beaudry declaring s. 130(1)(a) of Act was of no force or effect in its application to any “serious civil offence” , being maximum sentence of five or more years in prison. Appeals were brought by the accused persons in Stillman and by Crown in Beaudry. Stillman appeal dismissed; Beaudry appeal allowed. Section 130(1)(a) of NDA, which transforms ordinary civil offences into services offences when committed by a person subject to the Code of Service Discipline, is not inconsistent with constitutional right to trial by jury. Declaration that s. 130(1)(a) of Act was of no force or effect was set aside and convictions restored.

Court Martial Bar

Heading for Singapore? You might want to visit the Court Martial Bar at the J.W. Marriott Hotel Singapore South Beach. The hotel's website describes it as "an eclectic venue for after-work and late-night gatherings. Enjoy tasty sharing plates along with premium drinks and creative cocktails."

This press release advises:
Named after the formers 1930s army block it resides in, Court Martial Bar used to be a Court Martial Centre for the Singapore Armed Forces (SAF) for over 33 years from 1967 to 2000. The building that encapsulates it, specifically Block 14 during Beach Road Camp era housed a Subordinate Military Court as well as the Higher Military Court of Appeal and contained within its premises a courtroom, a deliberation room, witness rooms, holding cells and various offices for the court staff and military prosecutors.

Today, it is a specialty cocktail bar primed as the spot for after-work drinks and late night hangouts, serving up a “Bucket List” of both local-inspired and western bar bites to complement its beverage offerings. Still retaining its Art Deco look with refurbished interiors and modern accents, Court Martial Bar pays tribute to the history of the space with three heritage-inspired cocktails alongside other signature creations such as their barrel-aged classics. (Jun 2019).

The back story on a case in Cameroon

It turns out there is quite a back story to the recent military trial of six civilian academics in Cameroon. According to this account, they had been illegally deported from Nigeria. Excerpt:
[Barrister Paddy] Yong said the trial had not been open to the public and had gone ahead despite him raising two major objections.

“When the trial was to commence, I raised two fundamental objections. First, I objected to the fact the military tribunal was headed by Lieutenant Colonel Misse Njone Jacques Beaudoin and that five other high-ranking military officers were members of the presiding panel. I objected to the fact that those accused were civilians who did not participate in any military uprising.

“My second objection was to the fact of the trial being conducted in French. My clients are Anglophone Cameroonians. Therefore, the trial should be held in English.”

Yong said his two objections were rejected. “But the trial continued. My role was reduced to that of an observer,” he said.
The Nigerian High Court in Abuja found that the professors had been illegally abducted.

Saturday, September 7, 2019

The case of the missing file

Appeals in South Sudan's "Terrain Hotel" military trial are on hold because no one can find the case file. The file was last seen in 2018 when it was forwarded to President Salva Kiir. Amnesty International's report observes:
While last year’s convictions were an important first step toward accountability for human rights violations in South Sudan, the authorities must ensure that justice takes its full course in this case. Under South Sudanese law, trials involving crimes against civilians should be heard by civilian courts, not military courts, as the Terrain Hotel case was.

Thursday, September 5, 2019

Appeal in Cameroon court-martial

Human Rights Watch has issued this press release about the appeal of a recent Cameroon court-martial. There seem to have been many flaws in the trial.

Mark your calendar

On Oct. 15, 2019, the Federal Court of Canada will hear argument in a case involving who may preside over the pending court-martial of Chief Military Judge Mario Dutil. Details here.

Business as usual at Makindye Barracks

Two more civilians have been convicted by a Ugandan court-martial on firearms charges. Details here. Human rights norms strongly disfavor the trial of civilians by military courts. Uganda is a repeat violator of this norm.

Calling the House of Commons to order

A new text on Canadian military criminal justice titled "Calling the House to Order" was presented to the 30th International Conference on Criminal Justice hosted by the International Society for the Reform of Criminal Law which took place at the Westin St. Francis Hotel, San Francisco, California, USA, between July 9 and 13, 2017.

The text written by Michel W. Drapeau and Joshua Juneau opens by noting that despite its oversight duty, Canada's legislature has arguably NOT made a meaningful contribution to the development of military law since 1967 resulting from the unification of Canada's navy, army and air force. In this way - save for legislative reform in 1997 as result of the findings of the Commission of Inquiry into the Deployment of the Canadian Airborne Regiment to Somalia, the current Parliament is a sort of absentee landlord in failing to reform an ancient justice system which so often fails our men and women  in uniform and whose compliance with the Charter of Rights and Freedoms is, at best, questionable.

The text goes on to state that Canada's Minister of Justice is also "Absent in Office" on the military justice file despite the fact that section 5 (b) of the Department of Justice Act gives the Minister responsibility for the "superintendence of all matters connected with the administration of justice in Canada. It also names the Minister of Justice as the official adviser of the Governor General = Canada's Commander-in-Chief - as the legal adviser of the Queen's Privy Council for Canada.

Yet, the authors note further, the Minister of Justice's attitude is one of passiveness and non-involvement in military affairs, her legislation goes out of its way to exclude application over the military.
It is almost as if there were a line of demarcation between laws intended for civil society and laws enacted for the military.  The corollary to this is that the military is being granted a sort of independence of decision and action within a widening sphere of competence. To the informed observer, the line between civil society and military affairs is sharp and clear as if both sides must abstain from trespassing." 

Wednesday, September 4, 2019

Position vacancy -- imminent application deadline

For the right person, this could be a very rewarding staff position in judicial chambers for the 2019-20 Term at the U.S. Court of Appeals for the Armed Forces. The application deadline is Friday, Sept. 6, 2019.

Tuesday, September 3, 2019

What does Pakistan do now?

This article suggests that Pakistan might wind up trying Kulbhushan Jadhav in a civilian court, now that he has been afforded consular access in accordance with the judgment of the International Court of Justice. Excerpt:
The military court option, if Pakistan chooses that path, is likely to stonewall India's options within Pakistan as far as Kulbhushan Jadhav case is concerned. India would then definitely approach the ICJ once again seeking clearer direction -- in the form of interpretation of its July judgment -- to Pakistan for a Kulbhushan Jadhav trial in a civilian court.

If and when this happens, India could be able to engage a lawyer to represent Kulbhushan Jadhav in a civilian Pakistani court. A qualified judge would hear his side of story -- of how he was abducted from Chabahar area of Iran, where he had some business interests. . . .

Hope for a safe release of Kulbhushan Jadhav from Pakistani jail hinges on a review of the military court trial by a civilian court, which will definitely be under the lens of international community. But that hinge is still at some distance into an unseen future.
A civilian trial seems unlikely, and there is little reason to believe the ICJ would require it unless the Pakistani civilian courts' review of the military court proceedings can be shown to be a sham.

Biting the hand that feeds you

Can a law firm fire a consultant who speaks ill of a client? Consider the Australian case of Rumble v. The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409. Background on the case can be found in this report from the Sydney Morning Herald.

Sexual harassment in the IDF

The chief defense counsel of the IDF has given an interesting interview to Orech Hadin (Lawyer) magazine:
Chief Military Defense Counsel Col. Ran Cohen, who was part of a defense team of a high-profile commander convicted of sexual offenses, believes the excessive attention of sexual harassment cases ruins careers of those 'who dedicated their lives to military.'

Trial results in failed putsch case

The sentences have been announced in Burkina Faso:
A Burkina Faso military court on Monday sentenced two generals to 20 and 10 years in jail for masterminding a 2015 coup attempt against the interim government.

Gen. Gilbert Diendere was sentenced to 20 years in prison for charges of murder and harming state security and Gen. Djibril Bassole was given a 10-year jail sentence for treason, according to Burkina Faso’s state TV.
Details here. No word on the sentences for the other 78 defendants.

Monday, September 2, 2019

Burkina Faso putsch case

A verdict is expected today in the "failed putsch" case in Burkina Faso. The trial has been held in a military court. The putsch attempt occurred in 2015. Details here.

Sunday, September 1, 2019

Tribeca film festival entry: "Leavenworth"

Watch for a new 5-hour Starz series about the case of United States v. Lorance. IndieWire has details here.

A rare court-martial

That is the lede to a Telegraph (UK) story
Burma (sic) said its military was conducting a rare court martial following a probe into alleged mass graves in crisis-hit Rakhine state, two years after a bloody crackdown drove some 740,000 Rohingya into Bangladesh.
In February 2018, an Associated Press report alleged at least five mass graves of Rohingya in Rakhine's Gu Dar Pyin village - a claim denied by the government, which said the bodies were those of "terrorists".
But the military's official website said Saturday that an investigation had found "weakness in following instructions" in Gu Dar Pyin, and that a court martial would "proceed in accordance with the procedures of Military Justice."

Military commissions

David K. Shipler has written The Scourge of Military Commissions for Washington Monthly. Excerpt:
Without the military commissions, it’s a good bet that the most prominent prisoners at Guantanamo would have been executed years ago, or at least be sitting on death row waiting for the needle. They would have been tried in civilian federal courts, which Republicans have blocked, although the courts are the jewel in the crown of the American judicial system. If juries had found them guilty, it’s hard to imagine anything but the death penalty. Instead, the alleged organizers of the 9/11 attacks and the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more than 15 years, at taxpayers’ expense, waiting for trial by military commissions that are so ill-conceived as to be vulnerable to obstruction by prosecutors and multiple motions by defense attorneys seeking to guard their clients’ rights.