Tuesday, August 4, 2020

Ivorian military justice explained

Yeclo has this useful explainer by the Abidjan Military Court about the functions of the military prosecutor in Ivory Coast. (Google Translate will do a good job with the French original.) Excerpt:
The Government Commissioner is only competent to prosecute gendarmes, the military and the police, that is to say to find that they have committed faults against the criminal law, to investigate, arrest and take to prison if the facts are proven and then judge them. . . .

It follows from there that when a soldier, gendarme or police officer is the victim of acts committed by civilians, it is not the Government Commissioner who is in charge of the case but the Civil Prosecutor.

So when a soldier is attacked or injured or killed on a mission by strangers or civilians, it is the Civil Prosecutor who is competent.

Happy Coast Guard Day -- 230 years and still going strong


Monday, August 3, 2020

HRW's UPR suggestions for Lebanon

Human Rights Watch has made a number of suggestions in connection with the Universal Periodic Review for Lebanon. Here is what the NGO had to say about military justice (footnotes omitted):
Military Courts 
12. Lebanon continues to try civilians – including minors – in military courts. At least two civilians have appeared before military courts on charges related to their involvement in the nationwide protest movement that began on October 17, 2019.

13. A 2017 Human Rights Watch investigation documented many due process and international law violations inherent in trying civilians before military courts in Lebanon. Many of the judges are military officers appointed by and subordinate to the defense minister, undermining the independence of the court. Those who have stood trial in military courts describe incommunicado detention, interrogations without a lawyer, ill-treatment and torture, the use of confessions extracted under torture, decisions issued without an explanation, seemingly arbitrary sentences, and a limited ability to appeal.

14. Lebanon should:

· Amend article 24 of the Code of Military Justice of 1968 to remove civilians and all children from the jurisdiction of the military courts.

Corruption and military justice

Is corruption a reason to reform military courts? The authors of this Jakarta Post article think so:
[M]ilitary court reform is pressing to build accountability within the defense sector. The disclosure of alleged graft cases in the defense sector is often hampered under the pretext of military court jurisdiction, as occurred in the procurement of Sukhoi jets.

To this end, a revision of Law No. 31/1997 on military courts is urgently needed, bearing in mind that this was a mandate of the People’s Consultative Assembly Decree and Law No. 34/2004 on the Indonesian Military (TNI). Without military court reform, the modernization of Alutsista in Indonesia will face potential fraud.

See you at 0900 today

Global Military Justice Reform Town Hall 6, with Dr. Aifheli E. Tshivhase
Time: Aug 3, 2020 09:00 AM Eastern Time (US and Canada)

Join Zoom Meeting
https://us02web.zoom.us/j/6935283348

Meeting ID: 693 528 3348

Sunday, August 2, 2020

For your military justice bookshelf

Col. Nicolás Marchal Escalona
Confilegal has this informative interview with Col. Nicolás Marchal Escalona, whose new book (co-authored by Óscar Manuel Díez Herrero), Disciplinary Regime of the Civil Guard: Jurisprudence of the Fifth Chamber of the Supreme Court, has just come out. Contrary to the news report, the download is not free; it will run you €5.00. Excerpt (tweaked Google Translate version):
The latest declarations of the Civil Guard Associations have been claiming that the Military Penal Code does not apply to the Civil Guard. What is your opinion?

It is a provision of our regulations, derived from the legal nature of the Corps, regarding which there is no room for personal opinions. However, objectively considered and as I said before, only Title I is applicable in any case (of the discipline), reserving the application of the rest to NOT being acts of the service performed in the exercise of functions of a police nature.

The legal nature of the Civil Guard is military. One need only look at our close surroundings, in which police officers from many countries have adopted the gendármic model (civilian and other military police forces): France, Spain, Portugal, Italy, the Netherlands.

It is a system that has proven its effectiveness over the years. In Spain there are two police officers, at the national level, who support each other and, at the same time, constitute a healthy competitive stimulus for each other.

And it is necessary to add that, in time of war and a state of siege, the Civil Guard would be fully integrated into the Ministry of Defense, constituting a "fourth" army.

Saturday, August 1, 2020

Belated update on Chinese military courts

This contributor has been lax in contributing in the past year or more but will use the opportunity of today (August 1) being People's Liberation Army Day to provide a short update on a few developments related to the Chinese military courts.

A few days ago, Supreme People's Court (SPC) President Zhou Qiang spoke at an Army Day-related event to discuss judicial services and guarantees to the military.  As I've written elsewhere, "judicial services and guarantees" is a hallmark of Xi Jinping era policy towards and of the courts. What it means is that the courts, led by the SPC, need to do their part to support important policy initiatives and strategies of the Party and state. It doesn't seem that the SPC issued another policy document providing judicial services and guarantees to the military.

What this year's SPC report to the National People's Congress revealed was that there were over close to 500 cases in the local courts in 2019 involving crimes such as destruction to military installations, fraud by holding oneself out as a soldier and other related crimes. Most of the initiatives mentioned in that report about the military court have been previously discussed, such as joint cooperation agreements between military and local courts, giving military and their families preference in the courts. The report mentions the continuation of pilot projects on administrative litigation (akin to judicial review) in the military courts.  The SPC recently issued regulations on "responsible persons" appearing in court (see this comment by Jamie Horsley, of the Paul Tsai China Center at Yale Law School). It would be fascinating to see how that is being implemented in the military courts.  Also not released to the public is information about the hearing of cases in the military courts during the pandemic. SPC guidance on the hearing of cases would be applicable to the military courts, however.  There is much we don't know, as the cloak of secrecy over the Chinese military courts has not yet been lifted.

Friday, July 31, 2020

Another case of the slows in India

Consider this report on Union of India v. Bedi, a July 29, 2020 decision of a three-member bench of the Supreme Court of India overturning a decision of the Armed Forces Tribunal. The SCI's decision, which overturned the AFT's substitution of a fine for a sentence of cashiering, is only 11 pages long. The SCI had the matter before it for seven years.

Thursday, July 30, 2020

The moral legitimacy of Canada's military justice system is in question

My article “Despite pending law, Canadian Forces still deprives members of liberty for summary offences” in the Halifax Chronicle Herald (7 July) appears to have catalyzed several articles in response. I appreciate the resulting discussion, and I am aware that my fellow writers on this issue are lawyers, one of whom is a military lawyer, the other a former military lawyer.

I am not a lawyer. I am a retired military officer (major) who has become a human rights advocate for the members of the Canadian Armed Forces. I do not write with an eye for alignment of issues with the current military legal regime. I am expressing my concern for the divergence of the treatment of our military personnel from the Charter of Rights and Freedoms available to all other residents of Canada, whether they are citizens, immigrants awaiting citizenship, refugees, and visitors. It is my fundamental conviction that our military personnel should benefit equally from Canadian  rights, freedoms and values when the principle of unlimited liability mandates that they promote, foster and defend those principles, even at the cost of their own lives.

 A commanding officer (CO) is not a legal officer and lacks the depth of education and training, the time in law school, articling with a law firm and in professional practice.  Military summary trials are, effectively, trial by commanding officer or the CO’s designated officer, whose legal education to preside over an accused person is measured only in hours. Conversely, the education and experience of a judge prior to joining the bench is measured in years, and sometimes decades.

 I am not opposed to summary discipline. Many, if not all, professions have disciplinary procedures for its members who do not conform to the strictures of the profession. I am opposed to the arbitrary deprivation of personal liberty for up to 30 days for a minor infraction when the Parliament of Canada has passed legislation obviating that particular punishment and the possible imposition of a criminal record for a non-criminal act.

Tug of war in the Philippines

A cadet at the Philippine Military Academy dies in what seems to be a hazing incident. Three cadets are facing military charges of conduct to the prejudice of good order and military discipline and are in military custody. Now the local trial court wants custody to try them and several officers for civilian offenses up to murder. Who will win this tug of war? Details here.

Wednesday, July 29, 2020

Editor's note

A few items from the Editor's desk in the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

First, we've had a string of contributions from Canada. These are most welcome. Some have been fairly long. This is good, but in order to make room for more than one or two posts on the screen, I've started to inserting breaks. The remainder of the post shows up on a continuation page, and is easy to reach. If one of your posts got broken up this way, that's the reason. In any event, contributors are encouraged to post, and readers are encouraged to comment. (Real names only, please.)

Speaking of comments: the Editor moderates comments. We get quite a few spam comments. They're fairly predictable, and trust me, you don't want to see them. Perhaps some slow news day I may post one or two samples, just so you see what you are missing.

Second, on Monday, August 3, at 9:00 a.m. East Coast time, we'll host Town Hall 6 via zoom, with Dr. Aifheli E. Tshivhase as the presenter. His topic will be "Lockdown and the armed forces in South Africa: the Khosa 'murder' case and preliminary lessons for military justice." 

Please join us. If you have not received an invitation, here are the specifics:

https://us02web.zoom.us/j/6935283348
Meeting ID: 693 528 3348


There will be time for questions and answers.

Please email the Editor if you would like to be added to the Town Hall distribution list (or if you are interested in becoming a Global Military Justice Reform contributor).

Third, congratulations to Brenner Fissell and his merry band over at the new-and-improved CAAFlog site. It gets better and better.

Finally, while we're chatting, let's do the numbers:

Hits, 843.920
Posts, 5614
Comments, 819
Jurisdictions, 187
Contributors, 27
Town Halls, about-to-be 6
- 30 -

Tuesday, July 28, 2020

COVID-19 and Military Law

This article will appear in the forthcoming a COVID-19 special issue of the Journal of National Security Law and Policy. It can be downloaded for free.

Summary Hearings versus Summary Trials - Canadian Military Justice

At the risk of Canadians monopolizing the discussion this week, I thought that I might weigh in with a few observations and clarifications relating to Summary Trials and the Summary Hearings that will be created under Bill C-77.  While I agree with some of the criticisms that have been offered concerning Summary Trials, I believe it may be informative for readers to know where I part company with other observations and why.

Presiding officers at summary trials may be commanding officers (CO), but they might also be superior commanders (formation commanders and General Officers) or even officers commanding sub-units (typically majors and captains).  What is certain is that they typically do not have formal legal training comparable to a civilian lawyer or judge.  (NB: From time to time, a CO or other potential presiding officer in the Reserve Force might be a practicing lawyer, and some Regular Force officers who are not legal officers may have a law degree).  Nor are they constitutionally (or even institutionally) independent in a manner remotely comparable with a judge.

However, an assertion that Summary Trials are 'illegitimate' because of these shortcomings ignores the fact that, for all but five specific offences, a CF member accused of a Code of Service Discipline offence has a right to elect trial by court martial, which does have robust procedural safeguards. At present, there is no presumptive right to elect trial by court martial for five specific offences under the National Defence Act (NDA): s 85 (Insubordinate Behaviour), s 86 (Quarrels and Disturbances), s 90 (Absence Without Leave), s 97 (Drunkenness), and s 129 (Conduct to the Prejudice of Good Order and Discipline, in certain limited circumstances).  However, where the presiding officer concludes that detention, reduction in rank, or a fine in excess of 25% of net monthly income would be warranted if the accused were found guilty, an election must be given.  Thus, where a presiding officer anticipates using a significant punishment - which would give rise to a criminal record if imposed - the accused will always be able to elect trial by court martial regardless of the offence charged.  In other words: a CF member has a right to elect a mode of trial that does not suffer from the short-comings of the summary trial process.

No more confinement in ROK without a trial

South Korea is getting rid of disciplinary cells. Starting August 5, soldiers will be subject to confinement only if they have been convicted by a proper court-martial, rather than disciplinary proceedings. The current system is 124 years old, and has permitted military personnel to be placed in detention for up to 15 days.

Were you wondering what's going on at Guantánamo?

Carol Rosenberg, dean-for-life of the Guantánamo Bay press corps, has this report in The New York Times on the current obstacles facing the military commission trials. In a nutshell,  Murphy's Law is in full force and effect: "anything that can go wrong will go wrong," or words to that effect. COVID-19-related quarantine arrangements; a broken boiler; a new lawyer who needs 30 months to get ready; child care needs; another defense counsel who cannot travel because he is in a coronavirus "hot zone" in Florida; a Brady violation that slices a year off one case's maximum sentence. "None of the defense lawyers have met personally with any of the 40 wartime detainees at Guantánamo since the start of the outbreak because they are considered particularly vulnerable if they are infected. All the detainees are in their second decade of custody and many have conditions that put them at high risk, including obesity, diabetes and high blood pressure."

Watch for a new administration to figure out a way out of this unfair-to-everyone, prodigiously-expensive, legal box canyon.

Monday, July 27, 2020

Pakistan's leisurely compliance with the ICJ's Jadhav decision

Here's the latest on Pakistan's leisurely compliance with the ICJ's decision in the Jadhav case:
Major opposition parties – the PML-N and the PPP – are likely to oppose an ordinance meant to allow convicted Indian spy Kulbhushan Jadhav to file a review appeal against his conviction [by a military court] despite a request by the PTI led federal government not to politicize the “national security issue”.

The government is expected to table the International Court of Justice (Review and Re-consideration) Ordinance, 2020 in the lower house of parliament on Monday [today]. 
Reema Omer of the International Commission of Jurists has this insightful report on the case and the ordinance at issue. She writes:
There are legitimate concerns about the secret, non-consultative manner in which the Ordinance was passed; whether its provisions meet the requirements of the ICJ judgement; and whether person-specific remedies of the kind proposed by the Ordinance are permitted under Pakistani law. However, it is unfortunate that opposition parties are focusing their criticism on alleged “relief” to Jadhav and “appeasement” of India.

Similarly, instead of acknowledging that Pakistan made a mistake by denying Jadhav consular access promptly after his arrest in accordance with its international obligations and the need to rectify that error, the government too continues to blame past governments for accepting the ICJ’s jurisdiction.

This vi[]c[i]ous cycle of point-scoring must end. It comes at the cost of principles such as the right to a fair trial and creates an environment where even fulfilment of Pakistan’s basic international legal obligations appears as treason. Surely, our political parties are better than that.

The Guardia Civil and military justice

Are military justice actions taken disproportionately against junior personnel of Spain's Guardia Civil? The civil guards' union thinks so. But the union of officers thinks not. Here are the data. 

Summary trials are an anachronism first introduced in the Militia Act of 1868

Military officers should not be 
dispensing criminal justice!

I open by noting my full support and endorsement of Tim Dunne's article which appears to cause grief to my friend, Edmund Thomas.  I share his viewpoint. Let me explain why.

A Summary Trial is not a competent and impartial tribunal


For a number of reasons, summary trials as currently conducted by the Canadian military are a relic of the Middle Ages. They are also an affront to the Rule of Law.


Consider its main characteristics: 1. Presiding officers of Summary Trials are normally Commanding Officers who lack any pretense of "independence" and "non-affiliation" with the accused or witnesses. 2. The accused has no right to counsel which likely contravenes sub-para 2.(c)(Xii) of the Canadian Bill of Rights. 3. The trial process is not governed by any rules of evidence including the non-compellability of the accused to be a witness against himself; adverse inferences from the accused silence; or, spousal privilege. Trial provides full reliance on hearsay and opinion evidence. 4. The accused cannot make any Charter arguments that may lead to a stay of proceedings or the dismissal of the case. The level of disclosure is not as thorough as the one provided by a court martial. 5. There is no transcripts of  summary trial proceedings. 6. There is no right of appeal of a verdict or a sentence pronounced by a Summary Trial. 7.  An accused can be sentenced to detention and can be saddled with a criminal record. All this is contrary to the conclusions reached by the UN Human Rights Council on the integrity of the justice system which it sees it as a "pre-condition of democracy and the Rule of Law":


88. Military tribunals, when they exists, must be an integral part of the general justice system and operate in accordance with human rights standards, including respecting the right to a fair trial and due process guarantees set out, inter alia, in articles 9 and 14 of the International Covenant on Civil and Political  Rights.

Canada's military justice system has not yet lost its moral legitimacy, but it will -- a reply to Tim Dunne

On July 9, 2020 an op-ed in the Halifax Chronicle-Herald, written by Tim Dunne, a contributor to GMJR, was posted on  this forum. Mr. Dunne argues that Canada's military justice system has lost its moral legitimacy because, since June 19 three service members have been sentenced to periods of detention of between seven and 14 days, apparently at summary trials presided over by their Commanding Officers: Military justice system has lost its moral legitimacy. His sense of outrage stems from the fact that Bill C-77, which received Royal Assent on June 19, but has yet to come into force, will replace summary trials with summary hearings, and will remove detention as a sentencing option. He apparently believes that although CO's have the power to sentence offenders to detention, they should refrain from doing so because at some unspecified date in the future that authority will be taken away from them.

Rather than post a comment to Mr. Dunne's post, I thought it important to write a separate reply since Mr. Dunne's article suffers from several serious factual omissions and presents an inaccurate picture of both the Canadian military summary trial system as it now exists, and of the regime that will replace it once Bill C-77 comes into force.

Mr. Dunne appears to believe that, on one hand, military trials are hell holes of injustice in which CO's trample on the rights of their subordinates, while on the other, Bill C-77 will usher in an era in which military justice will conform to "contemporary Canadian values". He is wrong on both counts. The military trial in its current form is in serious need of reform, but contains important safeguards and benefits for service personnel, none of which Mr. Dunne mentions. Bill C-77, however, merely pretends to  be a non-penal statute. It will retain the CO's power to punish subordinates, while removing all the protections that service members currently enjoy.

Canadian Parliament has replaced the Summary Trial System with a non-penal and non-criminal procedure in 2019. The Canadian military has yet to adopt it.

Among advanced democracies, Canada's military still relies on the "summary trial' system.  A system largely unchanged in 331 years and whose range of punishments includes the loss of liberty while denying members:  a) right to be represented at trial by legal counsel;'and b) a right of appeal the verdict or sentence. 

In 2015 the Canadian Parliament introduced Bill C-77 aimed at replacing the Summary Trial system by a non-penal and non-criminal summary hearing system.  

This Bill was given Royal Assent on June 21, 2019. This is now the law. 

A year later, SC 2019, C. 15 has yet to be put into force by the Canadian military whose leaders still rely on the 'summary trial' procedure to enforce discipline at the unit level.

Sunday, July 26, 2020

A comment on the latest white paper

This post responds to the July 20, 2020 White Paper on National, Military, and College Reports on Prosecution of Sexual Assaults and Victims’ Rights by Professor David A. Schlueter and Dean Lisa M. Schenck. The thrust appears on page 42: (1) “significant changes to the military justice system are not justified at this point;” (2) “the data presented in th[e] paper suggests that Congress should not revamp the roles of the commanders nor armed forces lawyers—who act in the highest customs and professionalism demanded of officers in the United States military;” and (3) any further changes to the system should await implementation of the Military Justice Act of 2016, “which will result in the establishment of a special review panel, which will be charged with reporting on the operation of the military justice system following that Act.” The 2016 Act, the paper argues, “will result in more detailed data on case[s] processed in the system.”

The paper's unstated but central premise is that concern over sexual assault in the armed forces is properly the beginning and end of such congressional interest as there is in restructuring the Uniform Code of Military Justice to transfer the commander’s power over the disposition of charges in major cases to a judge advocate who is independent of the chain of command. While dismay over the persistence of sexual assault has certainly (and appropriately) contributed powerfully to continuing congressional interest in modernization, the need for this structural reform transcends such cases. As a result, the paper’s comparative assessment of military and civilian prosecution and conviction rates is basically misplaced. Having an independent legal professional make the disposition decision in all serious cases is the sensible, necessary step regardless of the impact of that overdue reform on the court-martial body count.

Saturday, July 25, 2020

All present and (nearly all) accounted for

On July 16, 2020, Global Military Justice Reform ran this post concerning the services' annual military justice reports for FY19, and noted that the one for the Coast Guard -- with apologies to Daniel Webster, it is a small service, yet there are those who love it -- was AWOL. Well, some time between then and now, the Coast Guard's report was added. If you go on the Joint Service Committee on Military Justice website, you can find it there -- the 82-page article 146a(b), UCMJ report now weighs in at 89 pages. Now that we have it, we can update the data previously presented for general and special courts-martial. Unhelpfully, the Coast Guard neglected to provide a figure for non-judicial punishments.

General and special courts-martial:

Army, 628
Navy, 245
Marine Corps, 254
Air Force, 415
Coast Guard, 14
Total, 1,556

Non-judicial punishment:

Army, 24,852
Navy, 4,323
Marine Corps, 6,728
Air Force, 4,055
Coast Guard, unknown
Total, 39,958

These data exclude FY19's 322 summary courts-martial. If they were included, they should be added to the NJP numbers. See Middendorf v. Henry, 425 U.S. 25 (1976). That would drive the grand total of disciplinary cases up to 41,836, with a whopping 96.3% handled non-judicially. The missing Coast Guard masts would yield a slightly higher figure. 

Remedial action for German soldiers

Germany is preparing legislation that would, among other things, set aside military court convictions for consensual gay sex by Bundeswehr personnel. It would also apply to military personnel of the former German Democratic Republic (East Germany). Details here.

A runaway Carabinieri barracks

The Carabinieri barracks in Levante is facing dual criminal investigations: one by the civilian prosecutor and one by the military prosecutor, according to this report (use Google Translate to get the drift). The charges include "drug dealing, receiving stolen property, extortion, illegal arrest, torture, aggravated personal injury, embezzlement, abuse of office, disclosure and use of official secrets, ideological falsity [sic], arbitrary search and personal inspections, aggravated private violence." Excerpt from Verona Sera:
Very harsh words echoed by those of Defense Minister Lorenzo Guerini, pronounced before the carabinieri of a Roman barracks during an official visit: "The first victims of these very serious events are you - said Minister Lorenzo Guerini -- 110,000 men and women who dress this uniform with unparalleled dedication, generosity and sacrifice. The facts of Piacenza as they emerged are very serious and unheard of. And even more serious is that these events occurred during the health emergency, at a time when armed forces and law enforcement agencies were busy with every effort to give support to citizens. It is unacceptable that while the whole Army was fighting in such a delicate moment in the service of the citizens, others committed similar actions, unworthy for those who wear the uniform of the carabinieri."
Globalist has a detailed account of the investigating magistrate's report here. This will not end well.

Thursday, July 23, 2020

Amazing but true: closed trial of a 4-star officer

Will someone -- anyone -- please explain why Uganda's  court-martial of a four-star officer is being conducted in secret? You won't find an explanation in this news report. Excerpt:

The trial of the former Inspector General of Police, Gen Kale Kayihura, is being held in camera, the chairman of the military court, Lt Gen Andrew Gutti, has said.

However, Gen Gutti declined to divulge more details on when Gen Kayihura’s trial started and why it’s being conducted in camera.

“It took off but it will be open for public consumption at a later stage,” the chairman of the court said by telephone yesterday.

The four star army general is currently out on bail. . .

What?

Wednesday, July 22, 2020

Exam question

Consider this videotaped incident.

What, if anything, would you do if you were this sailor's commanding officer or department head?

Explain your answer. (No peeking at your neighbor's laptop.)

Tuesday, July 21, 2020

R v Bourque, 2020 CM 2008 - The Rule of Law and the Chief of the Defence Staff

In R v Bourque, 2020 CM 2008, military judge Commander Sukstorf handed down a judgment regarding whether a Defence Application for a stay of prosecution would be quashed.

From a practical perspective, the judgment was an ultimatum to the Chief of the Defence Staff (CDS) of the Canadian Forces to rescind an order that military judges have repeatedly determined was inconsistent with the Canadian Charter of Rights and Freedoms (the Charter).

The order in question (which is the most recent version of a similar order that had been issued on previous occasions) purports to establish disciplinary authority of the Deputy Vice Chief of the Defence Staff over military judges posted to the Office of the Chief Military Judge.

In R v Pett, 2020 CM 4002 and R v D'Amico, 2020 CM 2002, military judges Commanders Pelletier and Sukstorf, respectively, held that this order infringed the right of an accused, brought before a court martial, to be tried by an independent and impartial tribunal, as guaranteed by section 11(d) of the Charter.  In both of those cases, the presiding military judge held that the order was of no force or effect.  As a result of the declarations, both military judges held that the prosecutions could proceed: if the order was of no force or effect, the military tribunal could maintain its independence and impartiality.

Those judgments are now 5 months old.  However, as courts martial are statutory courts, and not plenary courts of inherent jurisdiction established under section 96 of the Constitution Act, 1867, the declarations regarding the constitutionality of the order only applied to those specific proceedings.  They did not, and could not, constitute a broad declaration under section 52 of the Charter, that would, in effect, quash the order.  Thus, the CDS would have to rescind the order.

He did not.

Consequently, defence counsel before courts martial have repeatedly brought Charter applications in light of this continuing unlawful order.  In Bourque, Commander Sukstorf expressly called upon the CDS to rescind what has clearly been determined, by more than one military judge, to be an unconstitutional interference by the executive in military judicial independence and impartiality.

Yet the order remains.

While this can be characterized as an ongoing 'dialogue' between the military judiciary and the senior leadership of the CF, it also points to a troubling concern regarding the respect for the rule of law (or lack thereof) exhibited by CF leadership.

A more detailed examination of the implication of this judgment, and the CDS' response, can be found in this blog article.

Racial disparities in U.S. military justice

The Christian Science Monitor published a feature "Why do Black troops face a harsher form of military justice?
The article describes disturbing incidents of racial disparities, including an African-American Airman court-martialed and convicted for being six minutes late to a meeting, and post-WW2 statistics in Europe that African-American servicemembers comprised 10% of the force but 80% of courts-martial.  
Then on the sunny side: 
One encouraging conclusion of the GAO report is that in terms of convictions and punishment, there is no statistical difference between Black and white troops, “except for Black service members in the Navy were less likely to be dismissed or discharged after a conviction,” Brenda Farrell, director of the GAO’s Defense Capabilities and Management Team, told lawmakers.
In other words, she said, though Black service members were more likely to be prosecuted, they were no more likely – and in some cases, less likely – to be convicted. “That makes sense from what I saw,” Major Gray says. “Once you make it to the court-martial and have all eyes on it, it evens out. It shows that the system works – not always, but mostly.”
This would appear to show that military judicial mechanisms have more capably identified potential racial bias than military prosecutorial mechanisms. 
x

Not so fast!

A three-judge panel of the Supreme Court of Pakistan has stayed a decision of the Peshawar High Court releasing 196 civilians who had been convicted by military courts. This account gives no reasons.

Monday, July 20, 2020

A lawful order?


This is something the GMJR Blog has not tried before...

A few weeks ago a discussion began on Twitter on what is the definition of a lawful order. The aim was to identify a definitive definition of what amounted to a lawful order. Brig. Anthony Paphiti (Rtd), esteemed member of this parish took part and...well I took notes.

I thought it might be a good idea to throw the discussion open to the esteemed readership of this blog to see if the definition can be expanded or refined to the point where it is a truly definitive definition of a lawful order within the jurisdictions which have grown out of the Georgian Articles of War.

The Twitter definition was:


A direction to a subordinate to carry out an act or refrain from doing an act which if followed will have a military purpose and which would not amount to a criminal act, a service offence or civil wrong.

Hopefully, we can get some debate going and some left of field authorities in the comments and ultimately, the definitive definition. To get things going, here are some questions:

1) Must an order be nescessary? Can an unnescessary act have a military purpose?
2) Is a commander required to have a reasonable belief that the order is necessary?
3) Can that belief be a mistaken belief?
4) Is the military purpose judged by a subjective or an objective test?

Civil guards and military justice

The union representing members of Spain's Guardia Civil has again called for ending the application of the military penal code in peacetime. This article provides details, including a useful chart showing how often, and for what, members of the corps have been subjected to military justice.

For example:

What goes here?

Further to the conversation on disposition of criminal charges involving military personnel, FoxMedia28 reports , what I will class as a case of concurrent jurisdiction.
A Bryan County man pled guilty in federal court for attempting to persuade a minor to engage in sex.
Michael Wilson, 37, of Richmond Hill, Ga., pled guilty to attempted coercion of a minor to engage in sexual activity. The charge carries a possible sentence of up to life in prison, along with substantial financial penalties and a minimum of five years of supervised release after completion of the prison sentence.
At the end of the piece, the report observes that,
He is also facing military charges, including seven violations of the Uniform Code of Military Justice, Article 120(b), Rape and Sexual Assault of a Child. These charges are pending and relate to multiple minor victims, according to officials.
U. S. military law basically accepts the principle that a conviction in a federal court bars a military trial on the same charges and vice versa--a double jeopardy issue.
It can become more complex when the subsequent prosecution is for, what I will call, other charges that are not the same as those in the first conviction. The report here appears to present a case of mixed charging decisions. There can be many reasons for this not necessarily malign. For example, the conviction relates to a single victim while the pending military case refers to multiple victims with much more serious allegations. It would be interesting to know what motivated the split charging decision--perhaps we'll find out as the military prosecution proceeds.
One simple answer may be the involvement of the accused's wife in the whole sordid affair.  See here. The Google seems to show a likely military person (and a possible reason for split prosecutions), but we will not be posting that until there is certainty we have the right individual.

Sunday, July 19, 2020

Kulbhushan Jadhav's case

The International News reports here on the status of the case of Indian national Kulbhushan Jadhav, currently under a court-martial's death sentence in Pakistan. Pakistan has yet to provide India untrammeled private access to him, as required by the Vienna Convention on Consular Relations and the decision of the International Court of Justice. It remains unclear why he has not exercised his right to High Court review of his conviction and sentence.

Pakistan's Press Information Department has issued this statement:
The spokesperson of the Ministry of Law and Justice has denied the allegations that secretly an Ordinance with a view to give reprieve to the Indian Commander Kulbhushan Sudhir Jadhav was promulgated by the Federal Government, without taking the country or the Parliament into confidence with a malafide intent. The allegations are baseless and it is clarified that the Government of India had initiated proceedings against Pakistan in the International Court of Justice (ICJ), in the matter of the detention and trial of an Indian national, Commander Kulbhushan Sudhir Jadhav, who had been sentenced to death by a military court in Pakistan in April 2017. Kindly recall that Commander Kulbhushan Sudhir Jadhav was a RAW operative, who facilitated numerous acts of terrorism in Pakistan, which resulted in the killings of countless innocent citizens of Pakistan. The ICJ gave its Judgment on 17th July, 2019 wherein it observed that “Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.” In order to comply with the directions of the ICJ, the International Court of Justice (Review and Reconsideration) Ordinance, 2020 was promulgated to provide an effective mechanism of review and reconsideration to Commander Jadhav, of Pakistan’s own choice. Under Article 89 of the Constitution of the Islamic Republic of Pakistan, it is the prerogative of the President of Pakistan to promulgate an Ordinance when Parliament is not in session. The Ordinance was promulgated when the Parliament was not in session. Please note that casting aspersions on the decision of the Federal Government to promulgate the Ordinance in question, reflects a poor understanding in respect of Pakistan’s delicate security issues and international obligations and is an attempt to confuse the public. During the past, many Ordinances were issued by the then Federal Governments. The procedure followed with regard to the present Ordinance is no different so there is no question that the Ordinance was illegally or unlawfully promulgated.

Friday, July 17, 2020

New Canadian Armed Forces policy on hateful conduct

To address racism, discrimination and hateful conduct the Canadian Armed Forces (CAF) has released Monday July 13th a new policy in the form of amending DAOD 5019-0, Conduct and Performance Deficiencies adding a broad definition of what hateful conduct is.

According to the new policy, “hateful conduct” is:

An act or conduct, including the display or communication of words, symbols or images, by a CAF member, that they knew or ought reasonably to have known would constitute, encourage, justify or promote violence or hatred against a person or persons of an identifiable group, based on their national or ethnic origin, race, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics or disability.

This article from Mrs. Karen Pauls, CBC, reports that military leadership expects the new policy would help “to address the systemic racism and discrimination that have permeated our ranks”.

A recent high-profile case of extremism has brought attention. Last January, FBI arrested Patrick Mathews, a former CAF reservist who allegedly was a recruiter in the US for a white-supremacist group. Brigadier-General Sylvain Ménard explained that after the arrest, it was necessary to work with military lawyers to legally coin the expression “hateful conduct”.

Among the new measures, there will be a system to monitor and track alleged incidents with an emphasis on training and awareness campaigns. CAF members violating the policy are exposed to a range of  sanctions up and including criminal charges.

While the reaction is generally positive as considered a step in the right direction, some have raised concerns. For example Tony McAleer - former skinhead, former airborne infantryman and now co-founder of the non-profit organization ‘Life After Hate’ - would have expected “more stringent screening processes for recruits and reservists”.

Of note, it seems the enumeration of discriminatory motives of the definition is exhaustive. In comparison with section 15 of the Canadian Charter of Rights and Freedoms, there is no “in particular” or “notably” which would indicates that other discriminatory motive of the same nature could be included. For example, there is no mention that violence and hatred against a group can be based on language.

The Canadian Forces and Hateful Conduct

This week, there has been some media attention on the Canadian Forces' new 'hateful conduct policy' in light of some embarrassing reports over the past months regarding the participation of some CF personnel in 'hate groups'.

As I describe in this linked Blog article, we should be cautious about exaggerating what the CF has actually done. The so-called 'new policy' appears simply to be the insertion of a definition of 'hateful conduct' in a pre-existing policy directive, Defence Administrative order and Directive (DAOD) 5019-0. And the new definition covers terrain that is already captured by the Code of Service Discipline and DAOD 5012-0 Harassment Prevention and Resolution.

While this new definition might assist CF leadership in addressing membership of CF personnel in 'hate groups', it does not actually represent a meaningful policy development.

Frankly, the principal objective of this announcement appears to be an opportunity for CF leaders to assert: "Look at what we are doing about this!". It is a fair bit of sound and fury representing fairly little.

Wisconsin National Guard: a poor report card from the Bureau

The National Guard Bureau has issued a disturbing report on the performance of the Wisconsin National Guard with respect to sexual assault and harassment reporting procedures, investigation protocols and accountability. From the Executive Summary:
     The Team determined there were a number of gaps and deficiencies in the Wisconsin National Guard’s Sexual Assault Prevention and Response and Equal Opportunity Programs which made these programs less effective often leaving victims and others involved in the program with inadequate care and support. Aspects of these programs were not in compliance with DoD, Service, and NGB policy and as such were being implemented without the proper resourcing and oversight. The Team also found the Wisconsin National Guard’s policy of conducting internal, command-directed investigations of sexual assault allegations to be in direct violation of Department of Defense, Department of the Army, Department of the Air Force, and Chief, National Guard Bureau directives, regulations, and policies. 
     The team's review of Wisconsin sexual assault investigative files revealed numerous deficiencies that compromised the quality, accuracy, and legality of the investigations. This impacted the quality of the investigations in three ways. First, not all Wisconsin National Guard sexual assault investigators possessed the requisite skills, experience, and training to handle special victims’ crimes. Second, the lack of program oversight impacted the resourcing, timeliness, and thoroughness of the investigations. Third, the investigations did not include sufficient administrative oversight.
Coverage by intrepid Capital Times journalist Katelyn Ferral:

https://www.jsonline.com/story/news/investigations/2019/12/05/investigator-rips-wisconsin-national-guard-response-sexual-assault/2614252001/

https://www.jsonline.com/story/news/investigations/2019/12/09/wisconsin-national-guard-boss-resigns-after-report-assault-response/2631914001/

https://madison.com/ct/news/local/govt-and-politics/the-four-horsemen-wisconsin-national-guard-s-own-investigation-describes-a-culture-of-sexual-misconduct/article_97140e8a-b360-5aad-8dc7-bcfec7e2c923.html

Thursday, July 16, 2020

On little cat feet

The FY19 reports of the Judge Advocates General under article 146a(b), UCMJ are now online at the Joint Service Committee on Military Justice site. (The Coast Guard's report is AWOL.) This 82-page document deserves close study because it provides a useful snapshot of the military justice system. As in the past, the data are not presented, well, uniformly. For example, the Army alone distinguishes between cases that have been arraigned and those that have been tried to completion.

One thing that emerges, and is pertinent to the current blizzard of preserve-the-current-system-or-Western-Civilization-as-we-know-it-will-wither pronouncements, is the fact that only a small fraction of UCMJ violations wind up in courts-martial; the lion's share -- arguably the ones most closely tied to good order and discipline -- are disposed of through non-judicial punishment.

Here's how the services stack up:

General and special courts-martial:

Army, 628
Navy, 245
Marine Corps, 254
Air Force, 415
Total, 1,542

Non-judicial punishment:

Army, 24,852
Navy, 4,323
Marine Corps, 6,728
Air Force, 4,055
Total, 39,958

These data exclude FY19's 180 summary courts-martial. If they were included, they should be added to the NJP numbers. See Middendorf v. Henry, 425 U.S. 25 (1976). That would drive the grand total of disciplinary cases up to 41,680, with a whopping 96.3% handled non-judicially.

Regrettably, the data do not reveal (1) how many of the 1,542 general and special courts-martial were the result of a refusal to accept NJP, as article 15, UCMJ permits for anyone not attached to or embarked in a vessel; (2) how often personnel who were offered and declined NJP were sent to a summary court-martial; or (3) how often any member sent to a summary court-martial exercised the article 20, UCMJ right to refuse trial in that forum.

Wednesday, July 15, 2020

Life sentence, no provision for appeal

A court-martial in Somalia has handed down a life sentence to a would-be suicide bomber. He has no right to appeal, according to this report.

International human rights principles guarantee the right to appeal military court convictions and sentences. Article 14.5 of the International Covenant on Civil and Political Rights provides: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." See also African Charter on Human and Peoples' Rights art. 7.1.1. ("The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force"); Principles Governing the Administration of Justice Through Military Tribunals, 2018 (The Yale Draft), Principle No. 17, ¶¶ 64-65.

Tuesday, July 14, 2020

Offered without comment

4 YO picks up book: “Daddy! This book looks so good. Can you read this to me?” : “I really don’t think you’ll enjoy this.” 4: “No! I will. Read it.” [Reads one-half of one sentence] 4: “Ummm never mind!”
7:05 PM · Jul 13, 2020Twitter for iPhone