Where should this case be tried?

The family of a Malaysian sailor who was killed in a naval detention center want the murder charge to be tried in a military court. How much weight should be given to their preference? Here's the story.

HRW calls for veto in Brazil

Human Rights Watch has called upon Brazilian President Michel Temer to veto a bill that would permit soldiers who kill civilians to be tried by military courts. Excerpt:

In the military justice system, the courts of first instance are staffed by four military officers and a civilian judge, all with an equal vote. The appeals court, the Superior Military Tribunal, consists of 15 military officers and five civilians. Its decisions can be appealed to the Supreme Federal Court, a civilian court.

The military criminal code, approved in 1969 during Brazil’s military dictatorship (1964-1985), provided that unlawful killings of civilians should be tried before military courts. But it was amended in 1996 to move trials for such crimes to civilian courts.

Under international and regional norms, extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court o[f] Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.”

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights before military jurisdictions given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”

The UN Human Rights Committee, which monitors implementation of governments’ obligations under the International Covenant on Civil and Political Rights, has called on states to ensure that military personnel are subject to civilian jurisdiction for any crimes that are not “of an exclusively military nature.”

Comments on proposed changes to Manual for Courts-Martial

With enactment of the Military Justice Act of 2016, the Defense Department is finalizing corresponding changes to the Manual for Courts-Martial. A number of comments on the draft changes have been posted on the Regulations.gov and are available here. The comment period has closed.

One interesting comment came from a Navy JAG Corps officer, and concerns disposition guidance. It can be found here:

Article 33 requires the issuance of "non-binding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline." The statute requires this disposition guidance to "take into account, with appropriate consideration of military requirements," the Principles of Federal Prosecution, Title 9-27 of the U.S. Attorney's Manual (USAM). The statute was designed to address a key vulnerability in the military justice system: the lack of meaningful decision-making guidance regarding the exercise of prosecutorial discretion by commanders, convening authorities, and judge advocates. In place of the "balance-of-considerations" approach to the disposition decision reflected in R.C.M. 306(b)which in effect make "probable cause" the sole referral criterion in many cases the statute's drafters envisioned structured, decision-making principles akin to those widely adopted in federal and state civilian practice. Such non-binding principles and standards have proven effective in promoting the reasoned exercise of prosecutorial discretion and the fair, evenhanded administration of criminal law. The [Joint Service Committee]'s proposed version of Appendix 2.1 makes a number of updates and improvements to the [Military Justice Review Group]'s original draft. But it eliminates key components of the Disposition Guidance that were designed to emulate the language and function of Sections 9-27.200 (Initiating and Declining ProsecutionProbable Cause Requirement), 9-27.220 (Grounds for Commencing or Declining Prosecution), and 9-27.230 (Substantial Federal Interest) of the USAM. Without these provisions, the JSC's version of the Disposition Guidance perpetuates the system vulnerability a lack of structured decision-making guidance beyond the minimum referral threshold of probable cause that Article 33 was enacted to address. The attached proposal builds off the JSC version of Appendix 2.1, while restoring and updating these key provisions intended by the statute's drafters. The following additional changes, highlighted in yellow, are proposed throughout the document: The Guidance is entitled "Principles of Military Prosecution" to emphasize its close connection to the Principles of Federal Prosecution. The structure and organization of the Guidance is modified to better align it with the Principles of Federal Prosecution and to reflect the distinct considerations at play in initiating and declining charges, selecting the appropriate charges and forum, and determining the appropriateness of plea agreements. Additional material from the Principles of Federal Prosecution is adapted throughout, where such material is appropriate in the military context. For example, Factor 1.2.e. is added to reflect that one of the core purposes of the Guidance: to "[p]romote confidence on the part of the public and individual service members that disposition decisions will be made rationally and objectively on the merits of the facts and circumstances of each case." The phrase "interest of justice and discipline" is restored throughout the Guidance in place of the proposed phrase, "[i]nterests of justice and good order and discipline." The former term has been a touchstone of military justice policy and practice since the 1920 Articles of War. It concisely captures "the dual-purpose of the American military justice system: to promote justice while maintaining discipline within the ranks." MJRG Report, Part I 293 (2015). It also speaks to the broad disposition authority granted to military commanders and convening authorities by Congress when the UCMJ was enacted in 1950. See United States v. Littrice, 13 C.M.R.43, 47 (C.M.A. 1953) ("It was generally recognized [by Congress] that military justice and military discipline were essentially interwoven. . . . [C]onfronted with the necessity of maintaining a delicate balance between justice and discipline, Congress liberalized the military judicial system but also permitted commanding officers to retain many of the powers held by them under prior laws."). In contrast, the phrase "interests of justice and good order and discipline" is without a clear, historical basis and is inconsistent with the UCMJ, which expressly connects the proper exercise of disposition discretion by commanders and convening authorities to "the interest of justice and discipline."

Transparency and impunity in Pakistan

Zulfiquar Rao, writing in the Daily Times, objects to the nontransparent machinery for punishing generals (and judges) in Pakistan. Excerpt:

At least there are frequent cases of accountability within military corridors. Just last year, we saw around a dozen senior officers of armed forces sentenced through military’s internal accountability mechanism. However, in cases of corruption at a senior level, it’s actually a collegial mechanism exposed to empathy as a result of Espirit De Corps. Many in public have often found the punishments through internal mechanism of military, especially in cases of corruption as too soft, compared to what a civilian is subjected to in similar cases.

Besides, there are instances where the accused ex-servicemen could not be brought to justice. One such case is of a retired General, who as a minister was accused of leading the controversial leasing of railways land worth Rs 25 billion in Lahore to a private company which built a golf course there.

Seen from the perspective of our societal character, we all know how favoritism, nepotism, greed, fears and graft are rampant in Pakistan. Not just the politicians and civil servants but the judges and generals too belong to the same society. How come while politicians and civil servants are so frequently found fallible but the judges and generals are able to escape these human temptations which are the hallmark of our society?

In that context, what kind of accountability is it when the process is internal and remains shrouded in mystery and flimsy excuses? We are no longer a colony run by alien rulers to justify an apartheid-driven governance, where some are left to enjoy ‘white’ privileges.

Civilian v. military prosecution

Human Rights First's blog has this post by Sara Sirota about the current Khattala prosecution in federal district court in Washington, D.C. She writes in part:

[Ahmed Abu] Khattala’s trial highlights the sharp contrast between terrorism prosecutions in federal court and the broken military commission system at Guantanamo. Federal courts offer procedural benefits for the prosecution of suspected terrorists that a military commission—which can only try war crimes—does not. The Department of Justice can prosecute Khattala for a range of crimes that otherwise do not fall under the jurisdiction of a military commission. Khattala’s charges include material support for terrorism and using a firearm during a violent crime, which are not war crimes.

Federal courts have also proven much more effective at obtaining convictions of terrorist suspects than military commissions. Since September 11, 2001, military commission trials have resulted in only eight convictions, three of which were reversed or overturned entirely and one partially. Meanwhile, federal courts have produced more than 600 terrorism-related convictions in the same period, including 108 in which the defendant was captured abroad, like Khattala.

Khatalla’s trial should serve as a beacon for U.S. terrorism-related trials moving forward. Not only is a federal court more efficient in prosecuting such cases, but providing access to an independent, civilian tribunal demonstrates that the United States is a country of laws and values.

The case grows out of the Benghazi attack, and is being tried to a jury.