Friday, February 28, 2014

Slow access to court-martial records in Spain

King Juan Carlos in 1981
Here's a complicated tale. A Spanish television network recently aired a hoax documentary about a failed 1981 coup to protest the fact that records of the resulting court-martial will remain sealed for a very long time. "Under the Supreme Court decision the court martial archives can only be opened 25 years after the death of the coup plotters, or 50 years after the attempted coup." King Juan Carlos (left) helped defuse the situation in 1981.

If any reader can find the Supreme Court decision online, please post a comment with the link.

Brig. Gen. Sinclair's defense counsel appears on Andrea Mitchell show

Richard L. Scheff
Richard L. Scheff, chairman of the distinguished Philadelphia firm Montgomery McCracken and civilian defense counsel for Army Brig. Gen. Jeffrey A. Sinclair, has given an interview to MSNBC's Andrea Mitchell. The conversation includes discussion of the Military Justice Improvement Act, which is expected to come up for a vote in the near future.

Sexual assaults by military personnel in Kashmir: what to do?

Ayesha Pervez
In Economic & Political Weekly's March 8, 2014 issue, Ayesha Pervez writes on Sexual Violence and Culture of Impunity in Kashmir. Among the problems is the fact that the Army Act 1950 gives the military power to decide whether a case shall be tried in a court-martial or a civilian criminal court. She notes that the 2013 report of the Committee on Amendments to Criminal Law headed by Justice (ret) J.S. Verma, "suggested that members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law if accused of sexual violence."

Wednesday, February 26, 2014

Canadian appeal court decision in sexual assault case

Hon. James O'Reilly
Structural issues have been at the forefront of discussion in the United States about how to stem the tide of sexual assault cases. Refreshingly, here's a February 24, 2014 decision of the Court Martial Appeal Court of Canada where the debate falls into familiar doctrinal territory, including the admission of new evidence on appeal and the right to effective assistance of counsel. In Thibeault v. Canada, 2014 CMAC 2, the court, per O'Reilly, J.A., wrote:
Naturally, appellate courts are reluctant to introduce new evidence on appeal. All relevant and available evidence should normally be put before the trier of fact at trial to determine whether the Crown has met its burden of proving guilt beyond a reasonable doubt. However, there are exceptions. One is where the evidence was not tendered at trial because the accused’s defence counsel recommended against it, counsel’s advice was incompetent and, because the evidence could have raised a reasonable doubt about the accused’s guilt, the result was a miscarriage of justice.
The general test for the admission of fresh evidence on appeal comprises four criteria, originally set out in R v Palmer, [1980] 1 SCR 759:
1.         The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
2.         The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3.         The evidence must be credible in the sense that it is reasonably capable of belief, and
4.         It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
The court unanimously ruled that the proffered new evidence should be admitted, and allowed the appeal, set aside Sub-Lieutenant Thibeault's conviction and ordered a new trial.

"Heritage brief" case appealed to Court of Appeals for the Armed Forces

Gen. James F. Amos (right
Marine Sgt. Roger E. Easterly Jr. has filed a petition for review by the U.S. Court of Appeals for the Armed Forces, claiming that unlawful command influence affected his general court-martial. The U.S. Navy-Marine Corps Court of Criminal Appeals decided his case on January 31, 2014. At issue are remarks made by Marine Corps Commandant Gen. James F. Amos, in which, according to Michael Doyle of the McClatchy Washington Bureau, he "declared that he was 'very disappointed' with many results at court martial and urged Marines to reject a 'bullshit' defense theory in sexual assault cases." Gen. Amos was among the service chiefs who testified last year before the Senate Armed Services Committee that it was essential that commanders retain the power to decide which cases should be taken to courts-martial. Sgt. Easterly is represented by appellate defense counsel Capt. David A. Peters of the Marine Corps.

Tuesday, February 25, 2014

Military justice reform v. Iran sanctions

Sen. Jerry Moran (R.-Kan.)
A Republican senator, Jerry Moran of Kansas, has blocked consideration of the proposed Military Justice Improvement Act in an effort to force a vote on additional U.S. sanctions against Iran.

Department of Serendipity

Here's a basic provision from the current Manual for Courts-Martial that many users may never have noticed:

Rule 201. Jurisdiction in general
(a) Nature of courts-martial jurisdiction.
     (1) The jurisdiction of courts-martial is entirely penal or disciplinary.

"Improve military justice"

Hon. Paul McHale has this op-ed by former Congressman/Assistant Secretary of Defense/retired Marine Corps colonel Paul McHale. He favors Sen. Kirsten Gillibrand's Military Justice Improvement Act. "First and foremost," he writes, "an effective commander needs to focus his or her attention on the war-fighting responsibilities of the command. Our commanders are superbly trained and carefully chosen to fulfill this duty. By contrast, commanders are rarely trained or prepared to exercise informed judgment regarding the weight of evidence. They are trained to prepare their troops for battle. The Gillibrand legislation will allow commanders to be combat leaders, while permitting military lawyers to weigh questions of evidence and potential criminality."

Monday, February 24, 2014

Parlez-vous réforme?

There is now a translation function (at top right). Use the drop-down menu to select the language you prefer. Please note that the program takes a few seconds to load -- and, as you will see, the translation results are, to put it charitably, approximate at best. Still, it's a start.

Mark your calendar

March 24, 2014 marks the 240th anniversary of the Rules and Articles for the Better Government of His Majesty's Horse and Foot Guards, and All Other His Majesty's Forces in Great Britain and Ireland, Dominions Beyond the Seas and Foreign Parts, From the 24th Day of March, 1774. For the text, as initialed by George III, see Major General George B. Davis, A Treatise on the Military Law of the United States 581-601 (3d ed. rev. 1913). (General Davis was Judge Advocate General of the U.S. Army from 1895 to 1901.) The 1774 Articles were the model for the American Articles of War issued on June 30, 1775 by the Continental Congress.

Sunday, February 23, 2014

Statement by Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers

Hon. Gabriela Knaul
The October 28, 2013 statement of Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers, summarizing her report on the administration of justice through military tribunals (General Assembly, 68th Sess., 3d Comm., Agenda Item 70(b)), is now available here. A sample:
One of the most complex aspects of military tribunals relates to their subject-matter jurisdiction, that is, to the types of offences that fall under their jurisdiction. 
The jurisprudence of human rights treaty bodies, special procedures mandate holders and regional human rights mechanisms on this issue tend to confine the jurisdiction of military tribunals to purely disciplinary types of military offences, rather than to offences of a criminal nature. However, many military justice systems do not make any distinction between a criminal offence and a breach of discipline. In these systems, which are based on the concept of “service offence”, military tribunals simultaneously exercise judicial functions and disciplinary authority over military personnel.

Gen. Musharraf to be tried in civilian special court, not court-martial

Former Pres. Pervez Musharraf
The special court established under the Criminal Law Amendment (Special Court) Act, 1976, ruled on February 21 that the high treason charges against former Pakistani President Pervez Musharraf cannot be tried by court-martial. Because he is retired from the armed forces, he is no longer subject to the Army Act. According to this report, "[u]nder section 2 (2) of the Army Act, a person who had retired would be subject to the act if his trial for any offence that he committed while in service, had begun within six months of ceasing to be in service, which is not the case here." The special court also cited the provision of the High Treason (Punishment) Act, 1973, that grants it exclusive jurisdiction. The proceedings will resume on March 11.

For a highly critical take on Gen. Musharraf's legal team's work see this article in The Nation by Saad Rasool.

Saturday, February 22, 2014

Should the prosecutor have the power to dismiss a charge?

The current U.S. controversy arising out of the withdrawal of the chief prosecutor in the general court-martial of Army Brig. Gen. Jeffrey A. Sinclair raises important questions about what power a military prosecutor should have. For an interesting comparison, consider Makhele v. Commander, Lesotho Defence Force, [2003] LSHC 85, where the High Court of Lesotho set aside a court-martial conviction for fundamental errors, one of which was that the court-martial proceeded with a charge that the prosecutor had dismissed. (The offense at issue was "refus[al] to use a green beret instead of a maroon beret.") For later proceedings see Makhele v. Commander, Lesotho Defence Force, [2005] LSHC 237.

Sen. Gillibrand speaks on military justice reform

Sen. Kirsten Gillibrand
Last night on MSNBC's All InChris Hayes ran this interview about military justice reform with New York Democratic Senator Kirsten Gillibrand. Among other things, she stresses the experience of other countries that have shifted to independent prosecutors for making court-martial charging decisions. Her official website includes a resource page about S. 1752, the Military Justice Improvement Act, which she has proposed.

Thursday, February 20, 2014

Akeem v. Federal Republic of Nigeria, No. ECW/CCJ/APP/03/09

On January 28, the Community Court of Justice of the Economic Community of West African States (ECOWAS) awarded compensation of NGN5,000,000 to Private Alimu Akeem, a Nigerian soldier, for unlawful incarceration since 2006. It also ordered his immediate release from custody. According to Dikoko News, the court unanimously found that Nigeria had violated Articles 6 and 7(1)(d) of the African Charter on Human and Peoples' Rights. The decision has not yet been posted on the ECOWAS Court's website. For a useful summary of earlier proceedings in the case see Solomon T. Ebobrah, Human Rights Developments in African Sub-Regional Economic Communities in 2011, 12 African Hum. Rgts. L.J. 223, 249-50 (2012).

Demilitarize the Brazilian military police?

Vanessa Barbara
Vanessa Barbara has this op-ed in The New York Times, urging, among other things, that Brazil's military police be removed from the military justice system. She writes:
"The military police are not part of the armed forces, and yet they operate according to military principles of rank and discipline. They cannot strike or unionize, and are subject to a military-style penal code (meaning transgressions at work can be treated as mutiny or treason, and officers are tried in a special court). They are prohibited from 'revealing facts or documents that can discredit the police or disrupt hierarchy or discipline.'"
Demilitarizing the military police, she argues, "would grant more labor rights to our officers, releasing them from a military code of conduct and discipline that often involves humiliation and training infused with a war mentality. It would also mean conferring on the civilian justice system the authority to judge all crimes committed by police officers."

Sex offenses by National Guard personnel not in federal service

Iowa State Sen. Steve Sodders
Iowa state senator Steve Sodders has proposed legislation to amend the Iowa Code of Military Justice to require National Guard officials to report sexual assaults to civilian law enforcement authorities for civilian prosecution. The change would apply to personnel who are on duty with the National Guard when not in federal service (and hence who are not subject to the federal Uniform Code of Military Justice). The maximum military justice penalties for offenses committed by National Guard personnel not in federal service are very low. Under Iowa law, for example:

Wednesday, February 19, 2014

Egyptian military judiciary legislation to change

The Aswat Masriya website reports that the interim Egyptian government has approved changes to the 1996 military judiciary law. The amendments will permit rulings to be appealed and require the Grand Mufti's approval for death sentences.

Forum for Musharraf treason trial to be announced on February 21

Former Pres. Pervez Musharraf
The International News reports that on February 21 the special court will announce its decision on whether treason charges against former Pakistani president Pervez Musharraf must be tried in a court-martial.

Foreign civilian given second life sentence by DRC military court

According to this news account, a military court in the Democratic Republic of Congo has sentenced a British-Norwegian dual-national civilian to life imprisonment for the murder of a Norwegian civilian, his cellmate. "The two men had been serving sentences for murder and espionage after their driver was found dead in the jungle in 2009. The pair, both former servicemen, said they were setting up a local security business and denied the charges."

Query: should this case have been tried in a civilian court?

We do mean "global"

In case you were wondering, here's what the behind-the-scenes audience statistics screen looks like for Global Military Justice Reform for the 24-hour period that began yesterday at 9:00 a.m. As of this evening, we've had readers in 48 countries in the short time since the blog went live.

United States

Tuesday, February 18, 2014

Sexual assault and U.S. military justice reform

Sen. Claire McCaskill (D.-MO), who has a pending proposal for further change in the military justice system, recently responded to questions from MSNBC viewers about sexual assault in the U.S. military. Here is part of what she wrote about the competing bill (the Military Justice Improvement Act) introduced by a fellow Armed Services Committee member:

Saturday, February 15, 2014

Is military justice reform on the way in Indonesia?

Pres. Susilo Bambang
The other day the Jakarta Post ran this editorial under the title "Bye-bye impunity." It observes in part:

"The most valuable legacy of the current administration related to military reform could be a new law that enables active soldiers to stand trial in civil courts on criminal charges.

"If the House of Representatives passes the revision of Law No. 26/1997 on military discipline and President Susilo Bambang Yudhoyono enacts it into law before his term of office ends on Oct. 21, the nation will certainly be taking a giant step forward in bringing to an end once and for all the impunity enjoyed by military members.

"Hope abounds for this to become reality after the House agreed in a plenary session on Tuesday to deliberate a draft bill on the revision of the Military Discipline Law, the last bastion for the Indonesian Military (TNI) to evade equality before the law."

The president is a retired Army general.

The Jakarta Post also ran this news story about the proposed legislation.

Policy on comments

The recent post on developments in the case of Brig. Gen. Jeffrey A. Sinclair prompted a short comment from Anonymous. Please note this blog's policy on anonymous posts. The commenter is most welcome to resubmit using his or her real name.

Military trials of civilians -- Mexico

From its earliest jurisprudence, the Inter-American Court of Human Rights (“I/A Court”) has maintained that to prosecute ordinary crimes as though they were military crimes simply because they had been committed by members of the military breached the guarantee of an independent and impartial tribunal.[1]

The Mexican legal system included two contradictory provisions: Article 13 of the 1917 Mexican Constitution, which prohibited military courts from trying members of the military for crimes that involved civilians,[2] and Article 57 of the 1933 Mexican CMJ, which expanded military jurisdiction to cover any act committed by a member of the military.[3]  Despite the supremacy of the Constitution over other laws in the Mexican legal system, in practice, civilian courts routinely ceded jurisdiction to the military courts when a member of the military was involved. 

The case of Radilla Pacheco v. Mexico was the first case to come before the I/A Court against Mexico concerned with the expansion of military jurisdiction.  On August 25, 1974, Mr. Radilla Pacheco was arrested and forcibly disappeared by members of the Mexican Army.  His family denounced his disappearance before the state and federal authorities, to no avail.  An NGO then presented this complaint before the Inter-American Commission on Human Rights (“Commission”) alleging that Mexico had failed to conduct an effective investigation to establish his whereabouts or to punish those responsible. 

In 2005, the Federal District Court in Guerrero ordered the arrest of Lt. Col. Francisco Quiroz Hermosillo, who was in charge of the militarized area when Radilla Pacheco was arrested.  That Federal District Court, however, ceded jurisdiction to a military court, characterizing the offense as one of “military discipline, in accordance with Article 57 of the CMJ.”   Radilla Pacheco’s relatives challenged the transfer of jurisdiction, also to no avail.  On November 29, 2006, the military court dismissed the case due to the “extinction of the criminal action” following the death of the defendant on November 19, 2006.  On July 27, 2005, the I/A Commission issued its  Report on the Merits, concluding that Mexico was responsible for violating, inter alia, the rights to life, personal liberty, humane treatment, fair trial, and judicial protection.

The Mexican Government failed to comply with the Commission’s recommendations.  Accordingly, on March 15, 2008, the Commission submitted the case to the I/A Court and on November 23, 2009, it ruled that the forced disappearance of the victim at the hands of the Mexican military, and the transfer of the investigation of the crime from civilian to military jurisdiction, violated, inter alia, articles 8 (due process) and 25 (access to justice) of the American Convention on Human Rights. The I/A Court found that “upon expanding the competence of the military jurisdiction to crimes that are not strictly related to military discipline or with juridical rights characteristic of the military realm,” the State had violated the rights of the next of kin to a competent tribunal and to a recourse that allowed them to contest the exercise of military jurisdiction.   In order to prevent repetition of this violation, the I/A Court ordered Mexico to “adopt, within a reasonable period of time, the appropriate legislative reforms in order to make Article 57 of the CMJ compatible with the international standards in this subject and the AC.”  In compliance, the Mexican Supreme Court declared the relevant part of Article 57 unconstitutional on August 21, 2012, and the Congress is in the process of amending the CMJ.

[1]    I/A Court H.R., Almonacid-Arellano et al. v. Chile, Judgment of September 26, 2006, para. 131. (“The Court has established that in a democratic State, the military criminal jurisdiction must have a restrictive scope and must be exceptional and aimed at the protection of special legal interests related to the functions that the law assigns to the Military. Therefore, it must only try military men for the commission of crimes or offenses that due to their nature may affect military interests. In that respect, the Court has held that when the military courts assume jurisdiction over a matter that should be heard by the regular courts, the right to the competent judge is violated, as is, a fortiori, due process of law, which, in turn, is closely linked to the right of access to justice.). 
[2]   Article 13 of the Constitution provides that there shall be no special courts and that military jurisdiction may not be extended to civilians.
[3]   Article 57 of the Mexican CMJ defines “crimes against military discipline” to include “those ... committed by soldiers during times of duty or based on the actions of the same.”  

Dear readers . . .

Global Military Justice Reform went live on January 12, little over a month ago. Since then it has had over 3100 page views from 47 countries around the world, and now boasts eight contributors (with more in the works). Thanks to everyone for your support. Please share the web address with friends. If you know of developments that would be of interest to other readers, send an email (with pertinent links) to any of the contributors. If you have something to add to one of the posts, of course, you can submit a comment--but kindly use your real name.

Friday, February 14, 2014

Trial counsel withdraws from general officer's court-martial

Lt. Col. William M. Helixon
The New York Times has this story about the withdrawal of Lt. Col. William M. Helixon, the senior trial counsel in the upcoming general court-martial of Army Brigadier General Jeffrey A. Sinclair. Presumably more will become known in coming days, but if, as appears from this news account, there was a dispute between trial counsel and the command over whether to pursue the most serious charges against General Sinclair, the case could become part of the debate over a pending legislative proposal to transfer the disposition power from lay commanders to prosecutors who are independent of the chain of command.

Appellate review of sentence in Royal Navy case

Lord Justice
The Courts-Martial Appeal Court in London has reduced the sentence of Leading Seaman Kevin Moffat, a Royal Navy sailor with 25 years' service, who entered the stateroom of the executive officer of HMS Edinburgh carrying an assault rifle. According to this account in The News, "Moffat held up the weapon in one hand – without pointing it at anyone – and showed the bullets in the other, saying: ‘This is a loaded weapon. You know what that means. I want to talk to you’." Moffat, who was suffering from an adjustment disorder, was sentenced to three years confinement at trial. Reducing this to 14 months, the appellate court, per Lord Justice Christopher Pitchford, said the court-martial "failed to make significant allowance for the fleeting nature of Moffat’s loss of judgment" and that his previous experiences and background might have ‘overwhelmed him’. . . . We recognise the judgement was difficult. However, we are clear that, on the special facts of the case, in particular the character and personality of Moffat himself, three years was excessive."

The Courts-Martial Appeal Court is composed of civilian judges. What should be the standard for appellate review of court-martial sentences? What is it in your country?

Thursday, February 13, 2014

San Jose newspaper editorial on Military Justice Improvement Act

The San Jose Mercury News has endorsed Sen. Kristen Gillibrand's Military Justice Improvement Act. "The existing system gives officers an impossible task. A rape conviction for someone under their command reflects poorly on their leadership. And how are they supposed to judge fairly if a top-performing soldier or Marine is accused, perhaps by someone who isn't as stellar?"

Fallout of Taiwanese military justice reform

Cdr. (ret) Chang Chi-hsin
As previously reported here, Taiwan did away with military trials last year following the exhaustion death of a soldier in disciplinary custody. As fallout of the change, a retired naval officer who was sentenced by a court-martial to life in prison for attempting to become a spy has been resentenced by a civilian court. His new sentence is confinement for six years. Commander Chang Chih-hsin had been director of the Political Warfare Office at the Naval Meteorological and Oceanographic Office.

Where can Gen. Musharraf be tried?

Pervez Musharraf
Arguments continue in the courtroom dispute over whether former Pakistani President Pervez Musharraf has a right to be tried before a court-martial on the treason charges that have been lodged against him. Some of the legal issues, including applicability of the statute of limitations and the time limit for trying former military personnel by court-martial, are noted in this account in The Nation

Quorum problem and challenges for cause in Ugandan brigadier's court-martial

Brig. Michael Ondoga, UPDF (right)
The difficulties of seating the panel in high-profile cases are apparent in this account of the trial of Brigadier Michael Ondoga, former commander of Uganda's troop contingent in the African Union Mission in Somalia. "Ondoga faces service offences that reportedly resulted into loss of lives and army equipment, diversion of fuel, loss of troop morale and feeding soldiers on food rations and consumption of dirty water . . . ." One member was disqualified because she had celebrated when Brig. Ondoga and a co-accused were arrested, but the defense later offered to allow her to serve because their concerns had been allayed. The prosecutor has objected on the ground that a member who has been removed cannot be restored to the panel. Despite the apparent loss of a quorum, the court-martial seems to have taken evidence. According to New Vision, "Lt. Col. Edson Muhanguzi, a key prosecution witness, told court recently that Ondoga penned a confidential letter to the army chief of defense forces (CDF), Gen. Katumba Wamala[,] in which he highlighted the anomalies in their operation in Somalia." If any readers can clarify the process, please do so in a comment.

Wednesday, February 12, 2014

New Year Honour for ex-DSP

Bruce Houlder CB QC DL
Belated congratulations to former UK Director of Service Prosecutions Bruce Houlder CB QC DL on being named a Companion of the Most Honourable Order of the Bath on the New Year Honours List for 2014.

Tuesday, February 11, 2014

The incompatibility of amnesty laws with international human rights treaties -- Argentina

In 2001, the Inter-American Court of Human Rights, in the Barrios Altos v. Peru case, for the first time held that amnesty laws were incompatible with a state’s obligation to investigate, prosecute and punish those responsible for serious human rights violations.

Argentina transitioned from a military dictatorship to a democratic form of government on December 10, 1983, when President Alfonsin assumed the presidency. Three days after his inauguration (December 13, 1983), President Alfonsín signed Decree No. 158, mandating the initiation of legal proceedings against the nine military officers of the first three juntas, but not the fourth (ruled by General Reynaldo Bignone).  Leading members of the two major guerrilla groups (ERP and Montoneros) were also ordered indicted and tried, leading to numerous sentences.  President Alfonsin was unable to convince the military to try the leaders of the four military juntas during the period 1976-1983 and as a consequence the case was turned over to civilian courts.  On April 22, 1985, the trial of the nine military leaders of the junta began and on December 9, 1985 Generals Videla and Massera were sentenced to life imprisonment, Viola to 17 years, Lambruschini to 8 years, and Agosti to four and a half years.  The other junta leaders were acquitted. Charges against an additional 600 military officials had been taken to court but these suits were stopped by the adoption of two amnesty laws: the Full Stop Law of 1986, which limited suits to those indicted within 60 days of the law’s enactment, and the Due Obedience Law of 1987, which effectively halted most remaining trials of Dirty War perpetrators.

President Alfonsín resigned in mid-1989 and was succeeded by President Carlos Menem (1989–99), who, in 1989 and 1990, pardoned approximately 1,200 individuals who were serving prison sentences, including General Videla and other top officials, many members of the guerrilla organizations and a former Minister of the Economy.  The Full Stop Law (Punto Final), the Due Obedience Law (Obedencia Debida) ,and the ten pardons issued by President Menem for members of the military and members of the guerrilla organizations became known as the “Impunity Laws.”

In 2005, in the landmark Simon case, the Argentine Supreme Court declared the laws known as the Due Obedience and Final Stop laws unconstitutional, overruling an earlier decision in 1987 (the Camps case) that had held the Due Obedience law constitutional.  As a consequence of this decision there were no further obstacles to reinitiating ordinary criminal judicial proceedings against members of the military who were responsible for violations of human rights during the military dictatorship, other than the fact that they could not be tried for the same crimes as in the original trial of the juntas.

In the Simon case, the Argentine Supreme Court noted that the “progressive evolution of the international law of human rights” and the elevation of human rights to constitutional ranking in Argentina, no longer permitted the State to avoid prosecuting crimes against humanity for reasons of social pacification based on erasing these facts from memory.   Amnesty laws have historically been used for national reconciliation, the Argentine Supreme Court noted, and the Due Obedience and Final Stop laws were similarly intended to relegate to the past the confrontation between civilians and the military, however, insofar as these laws were designed to obliterate from memory serious violations of human rights they contradicted the provisions of the American Convention on Human Rights and the UN International Covenant on Civil and Political Rights, and were consequently determined to be “constitutionally intolerable.”   For the Argentine Supreme Court, the judgments of the Inter-American Court and the directives of the Inter-American Commission “constitute an indispensable guideline for the interpretation of the American Convention in domestic law.” The failure of the Argentine domestic courts to conduct a judicial review of the compatibility of internal laws with provisions of the American Convention, termed by the Inter-American Court “the control of conventionality,” led to the Inter-American Court’s declaration of a violation of Article 2 of the American Convention.  Article 2 requires States to bring their domestic legislation in line with the provisions of the American Convention.  The Argentine Supreme Court noted that the Inter-American Court in the Barrios Altos judgment had declared Peru in violation of Article 2 of the American Convention, for the promulgation as well as the application of the amnesty laws since these laws had stopped the State from investigating and sanctioning violators of international human rights.

The Center for Legal and Social Studies (CELS) in Buenos Aires reports that by September 2013 2,316 members of the military and civilian collaborators had been accused of crimes against humanity (since 2007).  Of that total, 416 persons have been found guilty and 35 have been acquitted of crimes against humanity. A number of cases with large numbers of victims and accused are still being prosecuted and others are pending appeal.

New York City Bar report on Military Justice Improvement Act

The Association of the Bar of the City of New York, which has long taken an active interest in military justice, has issued a favorable report on S. 1752, Sen. Kristen Gillibrand's Military Justice Improvement Act. "The MJIA would improve the perceived fairness of courts-martial and ensure justice and accountability, by placing authority to prosecute and make other key decisions for serious, non-military crimes, in the hands of military prosecutors rather than the chain of command." The report was prepared by the City Bar's Committees on Military Affairs and Justice and on Sex and the Law.

S.T. Ansell

Monday, February 10, 2014


Sen. Claire McCaskill (D.-Mo.)
According to this news account, Sen. Claire McCaskill plans to filibuster Sen. Kristen Gillibrand's Military Justice Improvement Act when it comes up for a vote on the Senate floor.

$50 billion here or there

The Washington Post reported this morning (Afghan soldiers desperate for deal) that the United States has spent more than $50 billion to build a 352,000 Afghan security force over the past decade.  The Russian Federation has spent about that much to put on the 2014 Sochi Olympics.  Which is the better use of money?

Sunday, February 9, 2014

All you need to read is the headline

Lt. (Dr.) Barbara Balanzoni
The Associated Press provided this important story to The New York Times: "Italian Reservist Acquitted in Cat Rescue Case." At left, Italian Army Reserve Lt. Barbara Balanzoni, who "still faces charges of defamation and insults." A petition urging the military prosecutor to drop the case seems not to have succeeded. (Thanks to Prof. Diane H. Mazur for the tip.)

Query: Had Lt. Balanzoni been convicted on the charge of gross insubordination, would the cat-o'-nine-tails have been used?

Animal Watch Postscript: It was reported in December that a Canadian Forces military policeman who suffers from PTSD is being court-martialed for disobedience in bringing his service dog to his place of duty. Can one of our Canadian readers fill us in? No case with the MP's name appears on the Chief Military Judge's list of pending cases.

Saturday, February 8, 2014

Let us hear from you

If you have had trouble trying to post comments, please try again, as we've changed some of the blog settings to improve accessibility. As before, comments are moderated and must be submitted over your real name.

Friday, February 7, 2014

Military trials for civilians -- Chile

In the 2005 case of Palamara Iribarne v. Chile, the Inter-American Court of Human Rights held that military courts could not try civilians, although it noted that during the period 1990-96, most of the accused persons subject to the jurisdiction of military courts in Chile had been civilians.  The facts involved Humberto Palamara-Iribarne, a retired Chilean Navy officer, who wrote a book entitled “Ethics and Intelligence Services,” in which he addressed issues related to military intelligence and the need to bring it in line with certain ethical standards.  Palamara-Iribarne had self-published approximately 1,000 copies of the book and all the copies, as well as the originals, were seized and he was prosecuted in military court for disobedience, convicted and sentenced to a prison term.  He then called a press conference at his residence and because of the press conference criminal charges were instituted for contempt of authority against him and he was again prosecuted in military court, found guilty and sentenced to an additional prison term.  The Court noted that he was retired and consequently a civilian and could not be subjected to military jurisdiction:

139.  The Court has pointed out that the application of military justice must be strictly reserved to active-duty military members, based on a previous case wherein it noted that “when [the] proceedings [against the victim] were started and heard, [he was] a retired  military member, and therefore, could not be trie[d] by the military courts.” Chile, as a democratic State, must respect the restrictive and exceptional scope of military courts, and exclude the trial of civilians from the jurisdiction thereof.

140.  The description of the criminal offenses of disobedience and breach of military duty as contained in the Code of Military Justice provides that the perpetrator must have “military status.” In this regard, the Court considers that Mr. Palamara-Iribarne, as a retired officer, did not have the “military status required to be the perpetrator of the criminal offenses charged, and therefore, the above military criminal provisions were not applicable to the accused. Furthermore, the Court considers that Mr. Palamara-Iribarne, at the time he wrote the book and set in motion its publication, did so in the legitimate exercise of his right to express his opinions and ideas freely.

141.  The Court considers that Chile has not adopted the necessary measures for Mr. Palamara-Iribarne to be tried by ordinary courts, since as a civilian he did not have the military status required to be deemed the perpetrator of a military criminal offense. The Court notes that, in Chile, establishing that a person has military status is a complex task which requires the interpretation of various provisions and regulations, which allowed the judicial authorities who applied them to make a broad interpretation of the concept of “military” in order to subject Mr. Palamara-Iribarne to the military courts.

             142.  Such broad jurisdiction of military courts in Chile, which allows them to hear cases which should be heard by civilian courts, is not in line with Article 8(1) of the American Convention.

              143.  The Court has pointed out that “[w]here the military courts find themselves competent to hear cases which    should be heard by ordinary courts, the right to be tried by a competent judge or court is violated, and so is, a fortiori, due process, which, in turn, is closely related to the right to a fair trial.” The trial of civilians is incumbent on the ordinary justice.             

In September 2010, Chile adopted Law No. 20,477, which was promulgated on December 30, 2010, and excluded civilians from the competence of military courts, in compliance with the Inter-American Court’s judgment in the Palamara-Iribarne case.  According to Human Rights Watch, military courts, however, still exercise jurisdiction over Carabineros, uniformed police that are part of the Armed Forces, for crimes committed against civilians, such as torture and ill-treatment.

As of August 2012, over 1,300 cases against military personnel and civilian collaborators have been presented to civilian courts for human rights violations during the Pinochet regime.

Military court reform in Latin America

Add to your must-read list Brett J. Kyle & Andrew G. Reiter, Militarized Justice in New Democracies: Explaining the Process of Military Court Reform in Latin America, 47 Law & Society Rev. 375 (2013). Based on their review of developments in a number of countries, the authors find that "absent a dramatic defeat of an authoritarian regime and its armed forces, reform efforts that do not engage and bargain with the military often fail to achieve long-term compliance and improvements in human rights practices." They also offer sobering thoughts on lessons that can be derived from their findings for military justice reform efforts elsewhere. "Scholars and practitioners," they caution, "should not expect a quick fix to issues of overextension of military justice systems." (Thanks to Julia Shu, Yale Law School Class of 2016, for spotting this important article.)

Thursday, February 6, 2014

Military trial of civilians in Egypt

The Carnegie Endowment for International Peace Guide to Egypt's Transition reports the following with respect to the draft Constitution:

Military Trials for Civilians
Military trials for civilians were not formally mentioned in the 1971 constitution, which said only that “the law shall regulate the military judiciary, and define their competences in the framework of the principles in the Constitution.” In practice, the Mubarak regime occasionally used military trials to oppress its civilian opponents. Under Egypt’s emergency law, in force almost continuously from 1967 to 2012, the president possessed the power to transfer individual court cases to the military justice system.
After Mubarak’s fall, the SCAF [Supreme Council of the Armed Forces] ruled from February 2011 to June 2012. During that time, the armed forces began to use military trials extensively in areas where the military was deployed, and thousands of civilians were hauled in front of military courts. The 2012 constitution formally sanctioned these trials, though its language made a halfhearted attempt to limit them by stating that they could only be used “for crimes that harm the Armed Forces.”
After fierce debate during the current drafting process, in which representatives from the No to Military Trials for Civilians group argued their case to the drafting committee, the military was able to preserve the right to try civilians in military courts. The new draft makes more of an effort than the 2012 constitution did to specify when military trials can be used—for instance, in cases of attacks on military premises, personnel, equipment, documents, and funds—but the language is still broad enough to suggest that the military will be able to use them freely. Additionally, the draft transfers cases related to the Egyptian General Intelligence Service to the military justice system, which could also immunize intelligence officers from civilian oversight.

Hollow victory in India

Major Bhajan Singh Malhi
Thanks to Navdeep Singh for sharing a televised news account of the disturbing case of a destitute Indian Army officer, Major Bhajan Singh Malhi, whose conviction by court-martial was overturned by the Armed Forces Tribunal in 2011, with instructions to pay his benefits within six months. Three years after this victory, his name has been cleared but he has yet to receive his benefits.

What systemic changes does the case suggest?