Thursday, January 18, 2018

Human Rights Watch 2017 world report

Human Rights Watch's invaluable comprehensive and in many respects discouraging 2017 world report (covering events of 2016) is available here. Use search terms "military courts" and "military justice" to locate information concerning military justice reform efforts (or the lack thereof).

Don't hold your breath for reform in Indonesia

Reporting on the selection of Air Chief Marshal Hadi Tjahjanto as Indonesia's new military chief, The Diplomat observes:
Internal reform on issues such as military impunity on human rights, criminals, illegal military business, and discipline violations, stalled in the second term of the SBY [General Susilo Bambang Yudhoyono] administration and will not be a priority now. Tackling those issues would face strong internal challenges from the military and so far such reforms have not gained much support from the government and parliament. For instance, article 65 of the 2004 TNI [Indonesian Armed Forces] law states that criminal violations, including human rights abuses conducted by military officers, must be held accountable in civilian rather than military courts. A subsequent military justice bill was proposed in 2004 and since then has received strong resistance from the military leadership and also gotten little attention from the executive and legislative agencies.

Accountability: lessons from naval history

Captain Michael Junge of the Naval War College has written an outstanding, detailed post for War on the Rocks concerning the application of military justice to U.S. Navy vessel casualties. He notes:
Where death of sailors is involved, courts-martial are not always certain. When the USS Stark (FFG 31) was struck by two missiles killing 37 sailors, Navy leaders chose to not court-martial Capt. Glenn Brindell, his executive officer, or his tactical action officer. Cmdr. Scott Waddell was not court-martialed for his actions in command of the USS Greeneville (SSN 772) that killed 9 Japanese citizens. Cmdr. Martin Arriola was not court-martialed after the USS Porter (DDG 78) was struck by another vessel in 2012.
There have been occasional courts-martial for commanding officers in the Coast Guard as well for collisions and groundings, regardless of whether lives have been lost. For example, the O-5 commander of USCGC Owasco was taken to a general court-martial following a grounding within sight of the U.S. Coast Guard Academy. (The trial counsel acidly described him as having been a passenger on his own ship.) More recently, the O-4 commander of USCGC Mesquite, a buoy tender operating on the Great Lakes, was prosecuted following a grounding that resulted in the loss of the cutter (but no loss of life), although the conviction was later overturned and he was simply punished at Admiral's Mast.

In 1999, President Bill Clinton abolished loss of numbers as a punishment. As Jay M. Fidell (a former Coast Guard military judge) and the Editor wrote in 2001 in the Naval Law Review:
. . . Since, especially for crimes of command, dismissal or brig time are highly unlikely to be adjudged in a court-martial, and since involuntary separation can be effected through a board of officers (unless the offender chooses to retire or otherwise "go quietly"), abolition of loss of numbers means that essentially the same sanctions--notably, letters of reprimand--can be imposed at admiral's mast as are likely to emerge from a court-martial.
     The net effect of abolition, therefore, coupled with the rise of administrative measures such as removal from promotion lists, detachment for cause, retirement grade determinations, and the like, seems to be either to mark or to accelerate the demise of the general court-martial as the forum of choice for the administration of justice in cases involving crimes of command by naval officers.
     This evolution may make sense, but it is worth pondering since it is not without cost. It entails a rejection of the court-martial apparatus with all of its highly-touted protections for the individual (proof beyond a reasonable doubt, cross-examination of witnesses, "blue ribbon" juries, resolution of legal issues by a trained judiciary, to name a few) that have been developed especially over the last 50 years, as well as loss of the incalculable benefit of increased public confidence that justice has been done. Shifting a category of cases from the trial forum to a command-focused forum of, if anything, even greater antiquity, seems anomalous. Moreover, shifting to what may seem a more lenient forum a category of cases in which the accused is always an officer can be expected to generate consternation among enlisted personnel, not to mention the public. A court-martial can still reduce an enlisted member's pay grade; it can no longer even reduce an officer's seniority within a pay grade. The separate disciplinary treatment of officers and enlisted personnel has become a little more separate, and crimes of command have seemingly been decriminalized, the UCMJ notwithstanding. 
     Beyond all these considerations lies the loss of something even more elusive. The Joint Service Committee's explanation for abolition was right on a certain level: loss of numbers had become virtually a museum piece. It was essentially a 19th or even an 18th century sanction struggling to survive in a 21st century Navy. It had a certain anachronistic quality that tied the naval present to the naval past. Indeed, it also had an unmistakably ritualistic ring to it, like the old requirement that holiday colors be displayed when a general court-martial was in session. Even today, precise seniority has consequences at every turn, not simply for deciding who gets to be president of a court or board or who gets which quarters, but also, which ship renders passing honors and who salutes whom. Issues of seniority continue to pervade naval life. At the risk of sounding like old fogies, given all this, were we too hasty in throwing loss of numbers over the side? Will we one-day regret having done so?
Eugene R. Fidell & Jay M. Fidell, Loss of Numbers, 48 Naval L. Rev. 194, 198-99 (2001) (footnote omitted).

Comments welcome. (Anonymous comments will not be posted.)

How long is too long?

Vice-Admiral Mark Norman
Royal Canadian Navy

Justice delayed is justice denied!
In an editorial published in the Ottawa Citizen on January 16, 2018, questions are being raised about the continued suspension of Vice-Admiral Mark Norman by his then boss, General Jonathan Vance, Chief of the Defence Staff, on January 6, 2017. While conducting their investigation into allegations of unauthorized leaks of Cabinet confidences related to the procurement of a supply vessel, the Royal Canadian Mounted Police (RCMP) has executed a number of search warrants (including Norman's family home) and interviewed approximately 30 people.

Today, the Ottawa Citizen reveals that the Norman case has now been transferred from the head office of the Public Prosecution Office to a subsidiary office in Halifax, Nova Scotia. The Ottawa Citizen also reveals that the RCMP are now re-interviewing federal public servants. William E. Gladstone's famous adage: "Justice delayed is justice denied" aptly fits the current scenario.

Wednesday, January 17, 2018

Canadian Comprehensive Review

The 2017 draft interim report for the comprehensive review of the Canadian court-martial system has been made available by the Judge Advocate General, Commodore Geneviève Bernatchezhere. Comments are most welcome (nothing anonymous, please).