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.