Just wind, or a just wind?

Outlook has an important article -- "A Just Wind is Blowing" -- on the recent report recommending, among other things, possible reforms in the Indian military justice system. The article reports, in part:

The committee . . . has stayed true to its brief and made observations that are staggering, coming as they do from top brass wont to exert control. The former faujis—Lt Gen Mukesh Sabharwal, Lt Gen Richard Khare, Maj Gen T. Parshad—and Maj D.P. Singh and [Global Military Justice Reform contributor Maj. (ret)] Navdeep Singh, a lawyer, want an overhaul of a colonial hand-me-down that is downright unfair on soldiers of a modern democracy. Risking the ire of the uniformed frat, which guards its systems with ferocity, they’ve said: “Fairplay and justice cannot be sacrificed at the altar of military discipline.” 

They’ve raised questions resisted by the system so far: How impartial is the military justice system? And how insulated is it from command influence? Making a case for far-reaching changes in the dispensation of military justice, the committee says, “Gone are the days when defence establishments could invoke the veil of confidentiality or fear psychosis in all matters in the name of national security. This is understandable in operational and strategic matters, but cannot be allowed to impact administrative, personnel, pensionary issues.” 

Military trials have often been challenged in courts on the ground that they lack in independence and are under the influence of the convening authorities. Superior military authorities even have the power to revise the sentences or findings of courts martial. The committee found that, in the military justice system, there was no clear separation of the powers of the executive and the judiciary. No wonder when these verdicts are challenged in higher, civilian courts, they have often resulted in strictures. 

Progressive democracies like the US and Canada have already created impartial, independent military justice systems, but in India, as the committee noted, “all main organs of a court martial continue to be subordinates of the convening authority, which puts a doubt on their impartiality” and “visible and invisible strings of the military justice system are intertwined with the chain of command”. Agreeing on the need for reforms, former army chief Gen V.P. Malik says, “As our society and systems evolve, old rules and laws are amended. Our military laws are archaic, the structures and procedures should become more impartial. But it has to be done with care, without affecting discipline.” 

One major suggestion from the committee is that, in all three services, the presiding officer and others on a court martial should be from a formation outside the influence of the convening authority. It also says a standing court martial system with suitable infrastructure must be created at two or three military stations under all commands so as to do away with the ad hoc courts martial convened in remote military locations.

Things can move slowly in India (as in any democracy) -- it took decades before suggestions for an Armed Forces Tribunal came to fruition. The report that has been submitted is a very good sign, but the country's leadership has to take ownership of the reform issue and take the necessary next steps. Overhauling the military justice system and shedding pre-Independence features that Britain herself has abandoned is long overdue. A truly fresh start may be asking a lot, but India has the opportunity if it chooses to accept the report's challenge.

Meanwhile, tension continues to mount as U.S. military justice mavens anxiously await the release of the first report of the Pentagon's Military Justice Review Group. Will it be under the tree on Christmas? How profound will its recommended changes be?

UN report on handling of complaints about peacekeeper misconduct (now what?)

The External Review Panel created by UN Secretary General Ban Ki-moon to investigate issues relating to the handling of complaints about peacekeeper sexual misconduct in the Central African Republic has submitted a hard-hitting report, as noted here in The New York Times. The full report is available here. Excerpt from The Times's account:

. . . In one of the most damning indictments of the United Nations system, the report found that its officials had “turned a blind eye to the criminal actions of individual troops,” and failed to protect or aid the child victims. 

Instead, the 111-page report said, United Nations officials obscured the allegations and focused on questioning the conduct of one senior staff member who had leaked the information to the French authorities.

“In the absence of concrete action to address wrongdoing by the very persons sent to protect vulnerable populations, the credibility of the U.N. and peacekeeping operations are in jeopardy,” the panel’s report said. 

The report raises broader questions about the organization’s willingness and ability to hold accountable its own staff and troops deployed to protect the most desperate people in war zones around the world.

Passing over the leisurely pace of the French investigation of the misconduct allegations directly at issue, one wonders whether the report will prove to be a galvanizing event and that the UN will at long last get serious about cracking down effectively on peacekeeper misconduct. The report observes:

It is not enough for the UN to report on acts of sexual exploitation and abuse perpetrated by peacekeepers. It must actively seek to ensure that the perpetrators of such crimes are identified and prosecuted. In CAR, HRJS had a particular responsibility not only to investigate violations and protect individuals at risk, but also to follow up on human rights violations and assist in bringing perpetrators to justice. Unfortunately, neither the SRSG of MINUSCA nor the head of HRJS considered the UN to have a duty to pursue the accountability process. As a result, they took no steps to inform the French government of the Allegations.

*  *  *

Structures currently in place for the criminal prosecution of peacekeepers who commit crimes of sexual violence are ineffective and inadequate. Agreements between the UN and TCCs allow the latter to retain exclusive jurisdiction to prosecute crimes perpetrated by their troops. This means that the UN, the host country, and the victims have no recourse where the TCC chooses not to exercise its jurisdiction or engages in a flawed process. To address such circumstances, the UN should consider building on international models such as the one used by the North Atlantic Treaty Organization, which, in some cases, allows prosecution by the host country when the national government of the perpetrator does not take action. This serves as a means to put pressure on the TCC to actively pursue accountability processes.

2d Permyakov trial begins in Armenia

The murder trial of a Russian soldier, Valery Permyakov, has finally begun. Permyakov has already been convicted of military offenses in a Russian court-martial, but now is standing trial for the murder of Armenian civilians in an Armenian civilian court. The court is apparently sitting at a Russian military base in Armenia. Sketchy details here.

More on the Uganda Constitutional Court litigation

There is additional coverage of the pending challenge to Uganda's use of courts-martial to prosecute civilians. According to this account:

Former People's Redemption Army (PRA) rebel chief, Rtd Capt Amon Byarugaba and two civilians have petitioned the Constitutional Court challenging their trial in a military court. 

Byarugaba, Hasibu Kasiita and Mathias Rugira, who are representing 167 others, are seeking declarations that by charging them in the Court Martial for offences of treason, murder and abetting a person subject to military law in the commissioning of a civil offence was a violation of the Constitution. 

The petitioners through their lawyer, Ladislaus Rwakafuzi are seeking also seeking a declaration that all civilians being tried for civil offences before military courts be transferred to civil courts. 

"The civilians should be transferred before civil courts and if the Director of Public Prosecution (DPP) is interested in pursuing criminal charges against them, they will proceed," stated a plaint, signed by the petitioners.

Under contemporary human rights standards, the use of military courts to try military retirees is as improper as trying civilians who have never been in the armed forces at all. 

Big issues raised in Uganda Constitutional Court

A major case has been filed in the Constitutional Court of Uganda. According to this report, over 100 petitioners have joined in a challenge to the independence and impartiality of Ugandan courts-martial. They object to the trial of civilians by courts-martial and to the fact that accused persons are only afforded representation by military lawyers who have one-year terms, are not subject to the Advocates Act, and are not independent of the military.