Due process and military personnel: separation of functions is needed

Axel Buchheister

From La Tercera comes this op-ed suggesting that Chilean military justice should change. Axel Buchheister, director of juridical studies at the Liberty and Development Institute, argues that the military courts perpetuate the combination of functions that Chile's civilian criminal courts got rid of years ago:

IN CHILE Criminal Procedure Reform came because the former inquisitorial system did not respect due process, a basic human right, by giving one person the roles of investigator, prosecutor and judge. But the country's double standard keeps it for a segment of the population: the military. They are the only ones who remain endlessly subject to the old system.

In cases of "human rights" proceedings continue to follow the old regime, even though nearly 10 years ago it ceased to apply throughout Chile. Appellate judges are appointed to conduct such proceedings, despite the fact that the Constitution prohibits the ad hoc courts ("special commissions"). This ignores the human right to a competent tribunal; and they are all properly "coordinated" by a judge of the Supreme Court, which contradicts the independence of judges and is not in any law.

But that is not the only exception to due process affecting the military. Consider the case arising from the plane crash in Juan Fernández. It is the responsibility of military justice, but it actually works like the old civil criminal jurisdiction: an appellate judge serves as investigator, prosecutor and judge. Military Justice definitely has to be reformed, but in one respect it always exceeded civil justice: there is no separation of functions . . . The hierarchical relationship between the judge and the prosecutor has been criticized, but it is even worse where they are the same person. But that changed a few years ago with the law providing for civilian judges to serve on the Military Court (as ad hoc judges), who investigate, accuse and decide. A disconcerting involution of due process.

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What do you think of all this, National Institute of Human Rights? Because here and now they are violating the human rights of soldiers. Or doesn't it matter? [Rough Google translation]

Watch for Scripps "Under the Radar" report tomorrow on flawed military system for registration of sex offenders

An investigative team from Scripps News has prepared a major report on gaps in the system for registration of individuals convicted of sex offenses by courts-martial. According to this press release:

After an exhaustive review of more than 1,300 military cases and sex offender registries from across the country, the Scripps national investigative team has uncovered disturbing truths about military sex offenders and the civilian world's efforts to track them.

Zimman Casey was an Army private first class when a military court convicted him of assault and "indecent acts" on a young girl and sentenced him to three years in prison. After his release in 2002 from Fort Sill in Oklahoma, Casey headed for Texas, where the convicted military sex offender effectively slid under the public radar, allowing him to prey again and again. By 2007, the former soldier had been convicted of sexually assaulting a minor under 14.

The investigation, Under the Radar, revealed that Casey is one of at least 242 convicted military sex offenders who returned to civilian life but do not appear on any public registry of sex offenders. Among their offenses: rape, sexual assault with a weapon and child molestation.

As a result of the Scripps investigation, law enforcement officials in three states are hunting for former Army Specialist Basil Kingsberry. Convicted of rape and forcible sodomy in a military court martial, Kingsberry hasn't appeared on a sex offender registry anywhere in the country in the nearly 10 years since his release. . . .

"Under the Radar" will begin airing tomorrow (Nov. 23, 2014) on Scripps television stations and digital outlets.

More about Jaloud

Phil Cave helpfully posted yesterday about the European Court of Human Rights Grand Chamber's decision in Jaloud v. The Netherlands. The decision merits study from a variety of perspectives. One that is of particular interest is the court's treatment of the objection that a member of the Arnhem Court of Appeal was a serving military officer. Background information from the judgment:

F.  The Military Chamber of the Arnhem Court of Appeal

64.  At the relevant time, Article 9 of the Code of Military Criminal Procedure (Wet militaire strafrechtspraak) provided that the benches of the Military Chamber of the Arnhem Court of Appeal should consist of two judges of the Court of Appeal, one of whom should preside, and one military member. The military member should be a serving officer holding the rank of captain (kapitein ter zee, Royal Navy), colonel (kolonel, Royal Army), group captain (kolonel, Royal Air Force) or higher, who was also qualified for judicial office; he was promoted to the titular rank of commodore (commandeur, Royal Navy), brigadier (brigadegeneraal, Royal Army) or air commodore (commodore, Royal Air Force) if he did not already hold that substantive rank. He could not be a member of the Royal Military Constabulary. The military member was appointed for a term of four years, renewable once for a further such term; compulsory retirement was at the age of sixty (Article 6 § 4 of the Code of Military Criminal Procedure).

65.  Section 68(2) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) provides that the military members of the Military Chamber of the Arnhem Court of Appeal participate as judges on an equal footing with their civilian colleagues and are subject to the same duties of confidentiality (sections 7 and 13 of that Act) and functional independence and impartiality (section 12); and also that they shall be subject to the same scrutiny of their official behaviour as civilian judges (sections 13a–13g). The latter involves review of specific behaviour by the Supreme Court (Hoge Raad), initiated, at the request of an interested party or proprio motu, by the Procurator General (procureur-generaal) to the Supreme Court.

This is what the court held on the applicant's objection:

iii.  The military member of the Military Chamber of the Arnhem Court of Appeal

195.  The applicant argued that the independence of the Military Chamber of the Court of Appeal was tainted by the presence of a serving military officer in its midst. The Government argued that the independence of the Military Chamber of the Court of Appeal was guaranteed.

196.  In the present case, the Court has had regard to the composition of the Military Chamber as a whole. It sits as a three-member chamber composed of two civilian members of the Arnhem Court of Appeal and one military member. The military member is a senior officer qualified for judicial office; he is promoted to titular flag, general or air rank if he does not already hold that substantive rank (see paragraph 64 above). In his judicial role he is not subject to military authority and discipline; his functional independence and impartiality are the same as those of civilian judges (see paragraph 65 above). That being so, the Court is prepared to accept that the Military Chamber offers guarantees sufficient for the purposes of Article 2 of the Convention.

This brief treatment of the issue would seem to doom the similar objection that was lodged in the Dutch case concerning whether Col. Thom Karremans and two other Dutchbat officers should be prosecuted in connection with the Srbrenica massacre.

Postscript: This is a potentially significant aspect of the decision, but despite its brevity and unanimous support, it leaves a variety of questions on the table. Looking solely at terms of office, it indicates that a serving officer can be independent even if the judgeship comes with a term only four years long (renewable once). This may not satisfy the Human Rights Committee and regional human rights treaty bodies. Would Strasbourg apply a different test if the court were composed of a majority, rather than a minority, of such officers?

Looking beyond judicial tenure, what if a system does not provide for titular promotion to flag or general officer rank? What if a uniformed judge remains subject to normal military authority and discipline? What if the judge is subject to judicial conduct discipline only by other military officers such as a uniformed Judge Advocate General, rather than by civilian judicial authorities?

Gee, that's a ton of money!

Chinese authorities report that investigators found over a ton [!] of cash and other valuables in the home of a PLA general facing corruption charges. RIA Novosti has the details here.

General Xu Caihou, former vice chairman of the powerful Central Military Commission, last month confessed to having taken huge bribes in exchange for military promotions.

Once the investigation is complete, Xu is expected to be tried by a military court.

NPR speaks with force-feeding objector nurse's attorney

NPR 's Melissa Block has aired this interview with Ronald W. Meister, the New York attorney who represents the Navy nurse facing possible administrative discharge for refusing to participate in force-feeding of detainees at Guantanamo. Physicians for Human Rights is the latest professional organization to have spoken up in support of the nurse.