Noting a stunning development

Democracy Now has this post: Guatemalan police have arrested 18 ex-military leaders on charges of committing crimes against humanity during the decades-long, U.S.-backed dirty war against Guatemala’s indigenous communities. The ex-military leaders face charges of ordering massacres and forced disappearances during the conflict, which led to perhaps a quarter-million deaths. Many of the arrested former military leaders were backed by the United States, including Manuel Benedicto Lucas García, who had worked closely with U.S. military officials to develop a system of attacking the highlands where Guatemala’s indigenous Mayan communities reside. The system involved decapitating and crucifying people.

New briefing paper from International Commission of Jurists on Pakistan's military justice system

In a briefing paper released today, the ICJ examines the performance of Pakistan’s military courts in the first year of their operation. It also explains how the trial of civilians in military courts violates Pakistan's obligation under international law to ensure people charged with criminal offences are tried by independent and impartial courts in proceedings that comply with international fair trial standards.

The ICJ issued the following press release about the briefing paper:

Pakistan: “Military justice” system an affront to human rights – new analysis brief

One year into the establishment of military courts to try civilians for terrorism-related offences, the operation of Pakistan’s system of “military justice” shows complete disregard of the right of a fair trial, the ICJ said in a new briefing paper released today. 

“The trials by Pakistan’s military courts have reaffirmed fears of human rights groups and the legal community that military trials in Pakistan are secret, opaque and make a mockery of Pakistan’s domestic and international fair trial obligations”, said Sam Zarifi, ICJ’s Asia Director. 

In its analysis brief, the ICJ examines the performance of Pakistan’s military courts in the first year of their operation, including their failure to respect the defendants’ right to a fair trial. 

Proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts:

• Judges are part of the executive branch of the State and continue to be subjected to military command;
• The right to appeal to civilian courts is not available;
• The right to a public hearing is not guaranteed;
• A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied;
• The procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and details about the alleged offences are kept secret; and
• The death penalty is implemented after unfair trials.

A retiree recall?

Under the UCMJ a retired officer or enlisted person can be recalled to active duty for prosecution.  The prosecution can be for misconduct which it is alleged happened on active duty.  The administrative steps are quite complicated and burdensome, so it is not something that happens often.  It appears something similar can happen under Canadian military justice, as this report from Huffington Post (Canada) indicates.

Even though he's been a civilian for more than two years, former warrant officer Wade Pear faces a court martial for allegedly mouthing a schoolyard taunt to a junior officer at an official dinner.

The fact the military justice system is going after Pear, despite his honourable discharge in September 2013, relates to a Supreme Court decision that gives uniformed prosecutors unlimited discretion on when to go ahead with a case.

A court martial was scheduled for April 2013, while he was still in uniform, but was postponed. Pear took his retirement a few months later[.]

Our own,

Michel Drapeau, a retired colonel and an expert in military law, said the Nov. 19 Supreme Court ruling effectively quashed the notion that in order to proceed with an old case in the military justice system, there needs to be something to be gained for discipline, conduct or morale.

The practice under the UCMJ has been to reserve such prosecutions for very serious offenses that were not discovered until after the person retired.  The case of United States v. Allen comes to mind, a case in which serious issues about prosecutorial misconduct arose.  More recently is the case of United States v. Hennis.  (The link also discusses United States v. Witt, another pending military death penalty case for those interested in UCMJ DP issues.)  Hennis was brought back from retirement to be prosecuted for murder, was convicted and sentenced to the death penalty, and his case is now on appeal.

What the Pear case does is raise serious questions for Parliament and the new Liberal government "about the very, very broad jurisdiction given to military tribunals, vis-a-vis civilians and vis-a-vis military," Drapeau said.

"Should the military have the reach to be able to lay and charge, prosecute and eventually try someone who is a civilian? The question is a political one."

While there is a statue of limitations on how long it takes to charge someone under military law, the high court ruling effectively gives prosecutors a blank cheque on when to try to those charges, said Drapeau.

Question, would any such trial still have to be held within the statute of limitations applicable at the time?

As with other cases we have posted about, the Pear case seems to illustrate a need within the government (the politicians) to revisit the concept of military jurisdiction over civilians and for that matter personnel who commit offenses in the civilian community.  Rather than a broadening of jurisdiction, is it not more proper to limit jurisdiction to the person in uniform while the person is still on active duty.  If there is to be an expansion to retirees, should there not be more of a service connection than merely that they served.  This is a question that has been visited many times in UCMJ practice, and remains a valid question.  The Chief Justice of the United States not too long ago reminded us of the comparison between courts-martial and rough justice.

“Traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.” 

Denedo v. United States, 556 U.S. 904 (2009), citing to Reid v. Covert, 354 U. S. 1, 35–36 (1957) (plurality opinion).

In the Military High Court of Rwanda

All Africa reports:

The Military High Court, yesterday, started the hearing in substance of the case involving Col. Tom Byabagamba, Brig Gen (rtd) Frank Rusagara and Francois Kabayiza weeks after prosecution presented its evidence in the case.

The case started with the charge of inciting public insurrection against Rusagara, whom prosecution said, on several occasions in various places, uttered statements that were aimed at inciting people, especially members of the armed forces, against the government.

From Sahara Reporters an editorial update of sorts.

Nigeria entered 2016 with many carryovers. One of them is a veritable national blemish. The gratuitous incarceration of 66 ’’mutinous’’ Nigerian soldiers.

The soldiers were arrested and court-martialed for allegedly weaseling out of their deployment to the front lines. They pleaded that they were no wimps. The act hyperbolized as the crime of ‘’cowardice’’ and ‘’mutiny’’ was simply their refusal to confront the cruelest death cult in the world with a ridiculous ration of 30 bullets!

The court-martial discountenanced their defense, found them guilty, and sentenced them to death by firing squad!

Later, as an act of "mercy," the death sentences were commuted to ten years confinement.