Wednesday, September 4, 2024
South Sudan general court-martial
Military trial for Pakistani ex-P.M.?
Human rights jurisprudence astrongly disfavors the trial of civilians by military courts.
Comparing notes on Chinese and Peruvian military justice
The exchange and sustained dialogue represent a milestone in bilateral relations and the continuous improvement of the military justice systems in both countries.
With the aim of generating institutional bonds of friendship, the First Bilateral Meeting between the Military Justices of Peru and China was held at the headquarters of the Military Police Court of Peru. This meeting marks a significant step in the consolidation of cooperative relations and the exchange of knowledge between both countries in the military legal field.
The delegation from the People's Liberation Army Military Court of China, headed by Brigadier General XIAO Mengkui, Vice President of the People's Liberation Army Military Court of China, was composed of Senior Colonel HU Minghua, Head of the Court Case Presentation Chamber of the People's Liberation Army Military Court of China; Senior Colonel LIU Xiaoming, President of the Military Court of the PLA Northern Theater Command; Senior Colonel QI Zhengrong, President of the Shanghai Military Court; Senior Colonel JIANG Song, Vice President of the Deputy General Military Court of the PLA; Major SU Sihan, Interpreter of the delegation; Senior Colonel Leng Bingkun, Chinese Defense Attaché in Peru; and Major LIN Lu, Deputy of the Military Attaché Office.
The day began with a flag-raising ceremony with the participation of all FMP personnel, during which the national anthems of Peru and China were sung to the strains of the Peruvian Air Force band, followed by a military welcome in honor of the Asian delegation.
The Chinese delegation then had the opportunity to tour the facilities of the Military Police Court, including the 8th Floor Presidential Hall; the Supreme Court Hearing Room, the Center for Advanced Studies in Military Justice, the library and finally the office where criminal record certificates are issued. They also visited the Military Police Higher Court of the Center and the Mariano Melgar building, headquarters of the Military Police Higher Prosecutor's Office of the Center.
At the bilateral working table, in which the supreme magistrates of the FMP participated, crucial issues were addressed regarding the current situation of military justice in both countries. General PNP Maribel Acosta Guillén, Supreme Member of the Military Police Jurisdiction, presented the autonomous and independent model of military police justice in Peru, highlighting its focus on the application of the new adversarial accusatory criminal process and the prevention, investigation and punishment of crimes of function committed by military and police officers on active duty.
In turn, Brigadier General XIAO Mengkui expressed his gratitude for the knowledge shared and offered a detailed overview of the operation, organization and structure of military justice in China, as well as the application of its military regulations at three jurisdictional levels.
For his part, the President of the Military Police Court, Major General FAP (R) Arturo Giles Ferrer, in his closing remarks, underlined the evolution of the Military Police Court and its adaptation to modern times. He highlighted the importance of digitalisation and the implementation of new technological tools for a more effective and transparent administration of justice. In his message, General Giles Ferrer also announced the upcoming VII International Meeting on Military Justice and Operational Law, which will be held in Lima from 20 to 22 November this year.
This bilateral meeting not only reaffirms the good relations between the military justice organs of Peru and China, but also establishes a solid foundation for future collaborations. Through the exchange of knowledge and institutional cooperation, both countries will advance in the construction of more timely, efficient and transparent military justice systems, benefiting the Armed Forces and National Police of each nation.
Sex and Consent in the Military
So while most of the interested public will likely focus on the fact that Maj. Gen. [Phillip] Stewart was found not guilty of sexually assaulting his subordinate officer, the fact that he was prosecuted is itself hugely significant as it reflects the sea change in military law regarding affirmative consent. Through this court-martial, in which an officer’s claims against her general officer boss were taken seriously, the Air Force seemingly demonstrated that it understands and supports the law’s affirmative consent standard and those it is designed to protect.
It’s about time to understand that the lack of a “no” does not mean “yes.” It’s also long past time that senior and junior leaders of U.S. Armed Forces behave in the professional, noncriminal manner that those they lead, and the nation, deserve—and that those who do not are held to account.
Monday, September 2, 2024
New Article: Enhancing Fairness and Compassion in Military Disciplinary Proceedings
As a model to emulate, the author uses the integrative tribunal
established in Israel in 2018 to deal with the cases of desertion. According to
Professor Kitai-Sangero, the tribunal has a particular focus on identifying the
causes of desertion to better rehabilitate and reintegrate individuals as
functional service members rather than simply resorting to imprisonment. For
the author, that model court should be extended to less serious offences, even
to other national armed forces.
The article is divided in 6 parts. Part I (pp. 379-385) introduces the
topic by using examples both in literature and history to summarize the
traditional perceptions, tensions and main characteristics of the US military
justice system, for which the legal literature is vast. To summarize those
views, military disciplinary proceedings, a separate system dealing with unique
type of offences, are an expeditious tool to assist commanders (and subject to
their whims) in maintaining good order and discipline rather than upholding
justice, due process, and adhering to the rule of law.
In Part II (pp. 385-396) the author describes the IDF summary
disciplinary proceedings comparing them with the SCM in the US system. The
article examines its procedural safeguards, focusing on the lack of rights to
be legally represented and to be impartially heard, from an individual
soldier’s standpoint. In doing so, the author first explains the evolution of
the US system and the emergence, in 1950, of the Uniform Code of Military
Justice (UCMJ) to address criticism about the lack of fairness during WWII. The
different types of US disciplinary proceedings are then described, with a
particular emphasis on SCMs. The central role played by military commanders in
military justice is discussed, with the frailties in terms of professional
skills that go along with it. The Israeli disciplinary proceedings are
comparable but with even lower safeguards than their US counterpart, according
to the author who described the weaknesses. Then, the perspective of the Supreme Court of Israel (SCI) on procedural fairness in military disciplinary
trials is presented. More than four decades ago, the SCI viewed that rights to
legal representation and to a fair and independent judge are not guaranteed in
that system. Yet, in a more recent case, the ISC stressed that efficiency
should not compromise justice.[2]
Part III (pp. 396-405) exposes the arguments justifying why, in
military summary proceedings, the need for speed has precedence over fairness. The
foundation is first stated: military justice’s primary objective is to maintain
discipline. In doing so, it should be able to deal with breaches swiftly, in
order to deter. Military justice also serves to enhance combat effectiveness in
ensuring troops obedience to orders, in particular against their natural
inclination to self-preservation in face of risk-life situations. Military
justice also fosters military cohesion and trust amongst soldiers who live and
work closely together. The author refers to a US Supreme Court decision were it
was held, notably, that “the military operates as a distinct society separate
from the civilian community.”[3] Military justice also
serves as a way for commanders to exercise their authority over subordinates.
They are held accountable for their subordinates’ actions. So it is legitimate
to give commanders disciplinary jurisdiction over them. Commanders know their
subordinates and can better assess their behavior in comparison with neutral
judges. Such interaction may play in favor of the soldier, and promotes
inclusivity as part of the unit. Indeed, an objective of military justice is to
rehabilitate the individual as an effective soldier. In addition, military
disciplinary proceedings deal with offences that have no civilian equivalent,
their punishment powers are limited, and their results cannot create a criminal
record. Therefore, the need for procedural safeguards is lower. Having the
right to legal representation in that context would notably add complexity and
delays. Not to mention the need for those proceedings to be portable anywhere
the military forces are in the world, making legal representation unworkable in
operational setting.
Part IV (pp. 406-416) exposes the counterarguments as to why procedural
safeguards remain the priority during military disciplinary proceedings. The
author wonders if giving precedence to military efficiency and discipline
justify limiting a soldier's rights. In comparison with civilians, soldiers
have more restrictions to their freedoms and their privacy, even more so if
they are conscripts. Professor Kitai-Sangero is of the view that the
requirement for soldiers to be ready to the ultimate sacrifice reduces them to
tools for larger organizational purposes, hence removing their intrinsic value
as human beings. The author purports that when soldiers serve, the state has a
duty to protect them from wrongful convictions and unfair punishments, lest it
forfeit its right to demand their service.
The concept of a separate military community cannot justify in itself a
completely different approach. For example, police officers share many
characteristics with military life. Reservists are part of the civilian
society. For restricting soldiers’ rights, a logical and justifiable reason is
needed.[4]
Another argument for protecting soldiers’ rights is that commanders’
influence could become the rule under which the process is governed, while commanders
are themselves subject to biases and external influence, and play both roles as
judge and prosecutor. That’s why judicial impartiality is key to due process:
it ensures objectivity, without partiality, favour or affection.
The right to legal representation protects the integrity of the process
and corrects the gap between the individual facing an organization. Soldiers do
not have the skills to defend themselves in dealing with legal issues, nor do
they have the skills to manage their stress in facing disciplinary proceedings.
They need a military defence counsel at their side, the author writes. For
those who argue that providing legal representation in any setting would be
impractical, Professor Kitai-Sangero suggests the imprisonment should be
restricted to emergency situations, commanders having only the power to impose
short-term detention until trial. Having said that, military necessity in times
of crisis cannot inherently justifies the sacrifice of one individual’s rights.
Besides, disciplinary proceedings are for minor offences. Yet
individuals are exposed to imprisonment. This is a serious punishment that
should prompt legal representation.[5] Even a short term in
prison can have detrimental effects on someone’s mental health, in particular
when it is the result of a wrongful conviction. Furthermore, it discourages
soldiers’ to remain in the service. That’s why providing support for soldiers
to properly assert their rights is justified. Professors Kitai-Sangero
advocates for a better balance between the needs of the military and the
soldiers’ rights, in compliance with the constitution. Any restriction on
individual’s rights must be assessed through a proportionality test.
Ultimately, discipline and justice are not opposing concepts; it’s not
a zero sum game. If the focus is on justice, discipline would necessarily flows
from it, as it would foster confidence in military justice amongst the troops.
Conversely, an organization perceived as unjust discourages people from joining
or staying in it.
Part V (pp. 416-421) explores Israel's integrative military tribunal,
focusing on desertion cases. Using a holistic approach, the tribunal aims to
reintegrate deserters without imprisonment. In that process, the individual
soldier’s suitability for reintegration is assessed by the military police. If
considered suitable, the individual joins the integrative process, under
judicial supervision, and return to unit. A commanding officer is tasked to
accompany the soldier in the process. If needed, civilian welfare officials can
be involved. By default, the process will take a year, during which follow-up
hearings are conducted to monitor the progress and make adjustments, if
required. Upon successful completion, soldiers are convicted of a lesser
offence than desertion, which offence does not create a criminal record.
The author suggests extending this approach, focusing on rehabilitation
and re-integration, to less serious offenses that may lead to imprisonment. According
to the author, it promotes equitable practices in military justice, which can
“foster a culture of growth and rehabilitation”. Professor Kitai-Sangero
suggests this model could be applied to other national military disciplinary
proceedings.
Lastly part VI (pp. 421-423) concludes that the officers’ judicial authority
is excessive. Commanders’ power to impose imprisonment without minimal
safeguards is not consistent with the Israeli constitution. In that sense,
accused soldiers are no different from those facing ordinary criminal courts. For
non-legally trained commanders, imposing imprisonment for specific military
offences should not be possible unless the requirements for due process rights
are fulfilled, the author argues. The right to be represented by a defence
counsel should be given, unless there are exceptional and urgent circumstances.
The model of the integrative tribunal, presided over by a military professional
judge, which prioritizes reintegrating soldiers, strikes a more balanced
approach between military disciplinary needs and fairness. It is a recognition
that human capital is the armed forces’ most important resource. As it shows
that there is no contradiction between justice, compassion, and discipline, it
should serve as a model for other national armed forces.
Comment
Throughout Professor Kitai-Sangero’s article, one can feel a
wholehearted desire to make things better. The concerns the author has for
young soldiers’ well-being and mental health is a compelling argument. The
author sees that no major reform is expected soon. There’s no impetus for
affirming service persons’ rights. So as legal scholars usually do, the author sees
the need to reassess and draws attention to a system that many are indifferent to
mainly because they are unaware of its importance.
Like other authors[6], the article draws on US
SCMs to show the weaknesses of the IDF disciplinary proceedings in in
protecting individual rights. The US SCMs' evolution is key to understand the
tensions in balancing fairness, individual rights, and discipline in military
summary proceedings for minor offenses. Reforms in other military justice
systems, for example in UK[7], New Zealand[8] and Canada[9], can enhance the
comparative approach. A group of experts of the Commonwealth suggest the
tensions could be resolved by providing the right to elect trial in a military
court which provides access to the internationally recognised rights, or an
unfettered appellate procedure to such a court.[10]
Finally, the author is right on point when she writes:
Moreover, the recognition that soldiers are fulfilling a mission for their
country through their military service should give rise to a duty to evaluate
soldiers in accordance with legal standards and afford them fair trial
protections. As the state requires soldiers to make sacrifices, it also assumes
the responsibility of safeguarding them against unjust convictions and disproportionate
penalties. Otherwise, the state might lose its moral authority to require young
people to serve in the army.[11]
Indeed we have a collective moral responsibility to strive for the best possible justice system for those who risk their lives defending our nations, even going beyond legal and constitutional requirements.[12] Failing to treat soldiers with professionalism and humanity may compromise their ability to uphold these same values in their interactions with others, particularly during military operations, thereby increasing the risk of unprofessional conduct.
[1]
Rinat Kitai-Sangero, "Enhancing Fairness and Compassion in Military
Disciplinary Proceedings" (2024) 7:2 Cardozo
Int'l & Comp L Rev 37 (HL).
[2]
HCJ 266/05 Pilant v.
Deputy Military Attorney, 59(4) PD
707, 712-13 (2005) (Israel)
[cited by the author].
[3]
Goldman v. Weinberger, 475 U.S.
503, 506-507 (1986).
[4]
Id., 517
(Brennan, J., dissenting).
[5]
Middendorf v. Henry, 425 U.S. 25, 59-60 (1976).
[6]
Haslida Isamail, Mohamad Rizal bin Abd Rahman, & Muhamad Sayuti Hassan,
« Right to Legal Representation During Summary Proceedings Under the
Military Justice System », (2024) 32 : 1 IIUMLJ 365-396.
[7]
United Kingdom, Military Court
Service, The Court Martial and The Summary Appeal Court Guide, vol. 1 “Guide
to Procedure, v 9, (2023), <https://www.judiciary.uk/wp-content/uploads/2023/02/The-Court-Martial-and-Summary-Appeal-Court-Guidance--Volume-1--Guide-to-Procedure.pdf>,
p. 9, par. 7.1.
[8]
New Zealand, Defence Forces (Te Ope Katua O Aotearoa), Annual Report on the Military Justice System 2021-2022, Defence
Legal Services, 2022, p. 5, <https://www.nzdf.mil.nz/assets/Uploads/DocumentLibrary/Discipline-Report_2021-2022.pdf>.
[9]
Lyne Casavant, Julia Nicol & Stéphanie Le Saux-Farmer, Legislative Summary of Bill C-77: An Act to amend the National Defence
Act and to make related and consequential amendments to other Acts,
Publication No 42-1-C77‑E, (Ottawa: Library of Parliament, 2018 rev 2020),
sections 2.10 to 2.12, <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C77E>.
[10]
The Commonwealth, Commonwealth Military
Justice Principles – The Stellenbosch Draft, University of Stellenbosch,
South Africa, 2023, Principle no 10,
[11]
Rinat Kitai-Sangero, supra, note 1,
at 407.
[12]
The Honourable Morris J. Fish, C.C., Q.C., Report of the Third Independent
Review Authority to the Minister of National Defence, Pursuant to
subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, 30
April 2021, at p. iii. <https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf>.
Subscribe to:
Posts (Atom)