Parliamentarian waives immunity

Yassine Ayari, an opposition members of the Tunisian Parliament, has waived his parliamentary immunity in a case in which he was convicted by a military court even though he is a civilian, according to this report. The basis for his prosecution was a 2017 Facebook post that was critical of the Army. He was originally sentenced to 16 days in jail, but that was increased to three months after the government appealed. Mr. Ayari represents Tunisians who live in Germany.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts.

Conscientious objection recognized in South Korea

The South Korean Supreme Court yesterday held that there is a right to conscientious objection and that young men cannot be incarcerated for refusing to serve for reasons of conscience. Most of those who are affected are Jehovah's Witnesses. The Washington Post has details here. Under a separate decision last June by the country's Constitutional Court, arrangements for alternative service must be in place by next year.

Ken Watkin writes in Just Security

Brig. Gen. (Ret) Kenneth Watkin has written an thought-provoking piece for Just Security on "accountability fatigue." His conclusion:

What is required is a balanced approach that recognizes both human rights law and IHL apply, and that the armed forces themselves have an important, indeed, essential oversight role to perform. It is a role that can be enhanced by taking steps to increase confidence, both within and outside the armed forces, regarding the independence of investigatory bodies. Other States have addressed issues of independence by creating a statutorily empowered uniformed Director of Military Prosecutions, setting up joint civilian/military inquiries, and even appointing foreign observers. As stated, the problem is not human rights law, it is the interpretation of that law in a manner that reflects the needs of all stakeholders operating in a very complex and challenging security environment. [Emphasis added.]

Some countries, notably including the United States, persist in having commanders "own and operate" the military justice system, including the critical charging/disposition power even for major offenses. Query: how important is it that a director of military or service prosecutions be a uniformed officer?

"But enough of praise"

Global Military Justice Reform's prolific contributor Major (Ret) Navdeep Singh has written a two-part article for Bench & Bar, available here. Surveying a batch of cases that go back years, he makes the point that the Indian Ministry of Defence's scorched-earth litigation strategy -- in essence, never giving an inch and at times hiding the ball -- is "misdirected, highly adversarial and sadistic." Excerpt:

The Government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers.

While we, the ones dealing with military litigation, shall remain, waiting for Godot!

Why wait for the decision?

Iqbal Khan has written this op-ed concerning the Peshawar High Court's decision overturning 74 military court convictions. Some of his points are well-taken, such as why, after several years, Pakistan's government has still not improved its civilian criminal courts, whose deficiencies were the reason for allowing military courts to try civilians in the first place. Some of his other points are obviously questionable, such as blaming defense counsel for doing their job or faulting the High Court for focusing on "technicalities." One also wonders how anyone can write about the decision if, as he indicates, the court's actual full opinion has not even become public.