Attempted UCI in Lebanon

An interesting development in Lebanon, as a military prosecutor refused to charge an army officer with “homosexual activity” despite pressure to do so from the former defense minister, Bou Saab. It appears that at the time of the request, Bou Saab was serving as the defense minister.

The underlying article is intriguing for how individuals in Lebanon circumvent bans on dating apps, the colonial history of the anti-homosexual law, and the growing acceptance to same-sex relationships in Lebanese civil society, with the military trailing those efforts. The article also calls to mind U.S. policy with homosexual activity in the military and unlawful command influence (UCI).

The last decade has seen the end of Don’t Ask Don’t Tell, the expansion of federal marriage entitlements to same sex couples, and two reversals of whether transgender people still can serve openly, a big change to the Army I joined in 2009, when they were still teaching at the JAG School about separating openly gay Soldiers.  

The U.S. has also attempted to ban senior leaders from dictating prosecutorial decisions to subordinates through Article 37 of the UCMJ. But as a recent high profile case has shown, deciding when senior civilian leaders have crossed the line and tainted prosecutorial decisions sometimes leads to strong disagreements and multiple years of on-going litigation, as the boundaries of what constitutes UCI are sometimes less than crystal clear. 

But anyway, a thought-provoking case out of Lebanon to share here.

Religious harassment brings 8-month suspension

The Military Chamber of the Spanish Supreme Court has upheld the 8-month suspension of a member of the Guardia Civil for harassing a civilian waitress in the North African enclave at Melilla. The victim had suffered an anxiety attack after the accused harassed her for not following the Koran and otherwise not being a good Muslim. Details here from El Vanguardia. This was not speedy justice. The offense occurred in April 2016.

Speaking of the Guardia Civil, the three associations that represent its members have complained about working conditions when they are assigned to duty guarding the Royal Family during the summer. According to this article in the Majorca Daily Bulletin:

Guardia Civil associations have denounced what they claim are breaches of labour rights for officers who are assigned to the Royal Household. The complaints centre on their having to do marathon shifts, time off being cut, and not having relief for night services.

In a joint statement on Friday, the three associations said that officers on duty with the Royal Household suffer "frequent harm to their labour rights" but do not dare denounce this because of fears of what this might mean for their careers.

The Guardia Civil is a member force of FIEP (the International Association of Gendarmeries and Police Forces with Military Status). According to the FIEP website:

The FIEP (French acronym for France-Italie-Espagne-Portugal / France-Italy-Spain-Portugal, which are the first four “historical” members) is an association consisting of gendarmeries and police forces with military status originally from the Euro-Mediterranean area.

Founded in 1994, it then comprised the French National Gendarmerie, the Italian Carabinieri Corps and the Spanish Civil Guard. It was quickly joined by the Portuguese National Republican Guard in 1996. Afterwards, the Turkish Gendarmerie in 1998 swelled the ranks followed by the Dutch Royal Marechaussee and the Moroccan Royal Gendarmerie both in 1999, the Romanian Gendarmerie in 2002 and the Jordanian Gendarmerie Forces in 2011. The Argentinian Gendarmeria National and the Chilean Carabinieros joined the association as Associate Members in 2005 and the Qatari Internal Security Force “Lekhwiya” in 2013. The Tunisian National Guard became a member in 2016. The Ukrainian National Guard and the Palestinian national security Forces followed in 2017, as did the Brazilian State Military Police and Military Fire Brigades. Finally, the Djibouti National Gendarmerie joined in 2017 and during the Summit of October 2018, two forces became Observer: the Kuwait National Guard and the Senegalese National Gendarmerie.

Accountability: some UK proposals

Nadia O'Mara, writing for Just Security, points to three proposals that have been out for discussion in the UK:

The consultation puts forward three substantive proposals, targeting both criminal and non-criminal cases related to alleged violations outside the U.K. — in other words, the proposed legislation would not provide the same protections in cases related to the Troubles in Northern Ireland:

• To introduce a statutory presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the U.K. more than 10 years ago. The presumption would not apply, though, to offences alleged to have been committed by members of the Armed Forces against fellow personnel, or against other Crown Servants, essentially establishing a two-tier system in which the death of or injury to British personnel is of greater legal consequence than non-British personnel or civilians. 
• To create a new partial defense to murder, which would be available to current and former Armed Forces personnel who caused death in the course of duty outside the U.K. through the use of greater force than strictly necessary for the purposes of self-defense in the “heat of the moment,” providing the initial decision to use force was justified.
• To restrict the discretion of the courts to extend the normal time limit for bringing compensation claims for personal injury and/or death in relation to historical events outside the U.K. 

Each of the three proposals is not only unprecedented as a matter of domestic law, but also has serious implications for the U.K.’s international obligations. This author’s civil liberties and human rights organization, Liberty, set out its full concerns in a response to the MoD consultation. The focus of the remainder of this piece is the proposal to introduce a statutory presumption against prosecution of current or former Armed Forces personnel. If introduced, the measure might well pique the interest of the ICC in its investigation into the U.K.

Ms. O'Mara writes:

If taken forward, these proposals risk fostering a culture of impunity among U.K. forces that inevitably would reverberate on partners in military coalitions, as the absence of avenues to gain justice for abuses creates blowback in the form of threats and attacks on troops in the field.

What’s more, the proposals must now be set against the backdrop of evidence reported by BBC Panorama and The Sunday Times in November of a potential cover-up by the U.K. government and MoD of war crimes committed in Iraq and Afghanistan. The stories prompted the International Criminal Court (ICC) to say it would independently assess the reports and consider launching a full investigation.

"I will cut your son's throat" -- torture?

Carol Rosenberg has this riveting New York Times story on the torture hearing currently underway at Guantánamo Bay military commission. Who were the lawyers back at the CIA who opined that it wasn't torture if the threat was conditional? Seriously: who were they? Is there a memo in the file?

Commanders and justice -- what are the Democratic candidates saying?

All but two of the remaining Democratic presidential candidates favor removing commanders' disposition power for sex offenses, according to this report. If a Democrat takes the White House in November's general election, look for an Executive Branch initiative or a study commission or both. Excerpt:

Only former Vice President Joe Biden and former New York Mayor Mike B[l]oomberg have not signed the pledge, but say they would address the issue.

The Biden campaign said in a statement to CNN that he is committed to changing "the culture of abuse" within the Armed Forces.

"He will immediately appoint a commission comprised of current and former military leaders, military sexual assault survivors and their advocates, and prominent sexual assault experts, to make concrete recommendations to him within 90 days," the statement said. "All options should be considered to end this scourge."

Bloomberg's campaign said it is considering the issue.

"We're considering this pledge as we continue to release our policy proposals, including plans around the military and the best ways to prevent sexual assault," a spokesperson for the Bloomberg campaign wrote in an email.

Query: why limit this overdue reform to sex offenses? What about selection of members?

What better day for this story to have run than George III's yahrzeit?