Sunday, November 30, 2014

A practitioner's view from Nigeria

The Guardian (Nigeria) has published this wide-ranging interview with civilian practitioner (and retired military lawyer) Paul Okohue. For example:
[Guardian] There are those who believe that civil courts are not competent to handle military cases. Do you share this standpoint?
[Okohue] Yes, civil courts are not competent jurisdictionally to handle military cases.  This is the reason why the Court Martials are in place to try military offences.  Hon. Justice Adamu Galinje JCA said in R/Adm. Francis Agbiti vs. Nigerian Navy that the Armed Forces Act is a law applicable to the members of the Armed Forces and that the Court (Civil Courts) must be careful in reading into the law and the rules of procedure inherent in the conduct of affairs of the members of Armed Forces to avoid the breed of indiscipline and bring about the destruction of established chain of command.  But what I will suggest is that cases coming on appeal either to the Court of Appeal or Supreme Court from Court Martials should have members of the Armed Forces as Assessors to direct the courts on the laws, rules and traditions as applicable in the Military circles. For instance, the Supreme Court had held that a Judge Advocate in a Court Martial is a prosecutor; the assessors would have been able to direct otherwise, or when the same Supreme Court held in R/Adm. Agbiti [(2011) 4 NWLR (pt. 1236) 175] that a Major General in the Army who attended the same training with R/Adm. Agbiti in the Nigerian Defence Academy (NDA) who were also running the same seniority was Junior to Admiral Agbiti because the promotion of Adm. Agbiti was published about five days before that of the Major General.  That was the basis of setting the Judgment of the Court of Appeal aside. Clearly in my view, an Assessor in the case would have been able to direct the court appropriately as to the traditions and practices in the Armed Forces as they relate to officers who passed out together from NDA but in different services and what obtains in their promotion prospect especially if none of them looses [sic] seniority.
Later in the interview Mr. Okohue predicts that the young mutineers who are currently under (mandatory) adjudged death sentences will not be executed "for the simple reason that we are in a democracy and the person at the helm of affairs in this country is a listening President with a humane heart." He also recommends that the Nigerian Constitution be amended to make it clear that a court-martial is a court of record.

Saturday, November 29, 2014

Retired admiral applies for position on Armed Forces Tribunal

Vice Admiral
Shekhar Sinha, IN (Ret)
Hindustan Times reports here that a retired Indian Navy vice admiral, Shekhar Sinha, who was passed over for the Navy's highest position has applied to become a member of the Armed Forces Tribunal, the appellate court for military justice and personnel cases. The article observes:
“While he [Sinha] put in his papers in the correct military tradition, the fact remains he was not happy with the government’s decision. To that extent, he could be carrying some baggage and may not be truly impartial,” said Major General Nilendra Kumar, a former judge advocate general. Kumar said an administrative member’s job was of a judicial nature.

Speakers' presentations from UN expert consultation

Many of the speakers' presentations from the Office of the High Commissioner for Human Rights Nov. 24, 2014 expert consultation on the administration of justice through military tribunals are now available on the OHCHR website. They include, among other things, useful overviews of contemporary human rights jurisprudence regarding military justice. Taken as a whole, they provide a handy snapshot of contemporary trends and issues regarding the administration of justice through military tribunals. Useful teaching materials for law school courses on military justice and international human rights.

La justice militaire, immuable et changeante

Prof. Emmanuel Decaux
Francophone readers of Global Military Justice Reform will find it worthwhile to study Prof. Emmanuel Decaux's essay "La Justice Militaire, Immuable et Changeante," in Bernard Teyssié ed., Penal Code and Code of Criminal Procedure: Bicentennial Book 383-409 (Dalloz 2010). He begins with this observation:
Military justice is the great absentee of the Penal Code. In 1810, no provision of the Criminal Code mentioned it, and these days you have to go to the Dalloz edition of the Code of Criminal Procedure to find the text of the Code of Military Justice that is now in force. This relegation confirms the received learning that exceptional courts were abolished once and for all in 1982. The Left revels in this illusion, the army takes refuge in the pretense. Far from musical comparisons, repeated ad nauseam following Clemenceau's comment in the midst of the Dreyfus Case, military justice has become a fall guy. [Editor's translation; corrections are invited.]
And ends with this:
It is easier to abolish a court than to reform justice.
Prof. Decaux is well-known for the Decaux Principles, more formally, the Draft Principles Governing the Administration of Justice Through Military Tribunals, U.N. Doc. E/CN.4/2006/58 at 4 (2006).

More on the issue of alleged crimes while deployed

At Haditha on watch, I noted the new book by Kenneth Englade, about the Haditha cases.  Jurist now has something of a response, in piece by guest columnist Nathaniel R. Helms, author of No Time for Truth: The Marines, Justice, and the Haditha IncidentThe article begins:
Kenneth Englade recently offered his interpretation of the so-called Haditha Massacre, an unfortunate label applied to a far more reprehensible event that ultimately left eight US Marines standing before the bar of military justice. His final product is as underwhelming as it is skewed.
He concludes:
It is easy now to look back on the painful seven years it took to bring the case to a close and point out the glaring legal errors, the evidentiary inconsistencies and lies, deceit and obfuscation practiced by all the players involved in the longest, most expensive and fruitless criminal prosecution in the history of the US. It however was not a conspiracy, or an attempt to cover-up criminal behavior; it was the validation of a unique, unfair and malleable UCMJ that has as much to do with justice as military music has to do with beautiful serenades.
Which is partly why in my post I said that, “I wouldn't take the 'clever manipulation' comment too literally.  I would be more inclined to apply Hanlon's Razor.”

Connected to this, if only peripherally, Gene refers us to a piece in the Easton, Md., Star Democrat.  There are various cases cited in the article.  If you have a free moment this weekend, and an interest, here are links which may help you think about Gene's comment  quote that, "[S]oldiers have seen their right to self-defense on the battlefield negated by murder convictions."

United States v. Behenna, 70 M.J. 521 (C.A.A.F. 2011).  NIMJ filed an amicus brief in the case, and the other briefs are here.
Case Summary:  GCM conviction of unpremeditated murder and assault. Granted issues question (1) whether the military judge's erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial; and (2) whether the government's failure to disclose favorable information to the defense deprived Appellant of his constitutional right to a fair trial.
United States v. Hatley, ARMY 20090329 (A. Ct. Crim. App. 30 June 2010), pet. denied, 2012 CAAF LEXIS 12 (C.A.A.F. 2012), cert. denied by the U.S. Supreme Court, 1 October 2012. 

United States v. Clagett, ARMY 20070082 (A. Ct. Crim. App. May 21, 2009), pet. denied, 68 M.J. 231 (C.A.A.F. 2009).  Stjepan G. Mestrovic, The Good Soldier on Trial: A Sociological Study of Misconduct by the US Military Pertaining to Operation Iron Triangle, Iraq (Algora Publishing, Aug. 3, 2009).

For some reason, I haven't been able to find these two appeal cases reported at ACCA or CAAF, or CAAFLog.  It could be that the case is still under review at ACCA.

United States v. Lorance.  The accused was apparently convicted and sentenced on 1 August 2013.  It seems that his case has not yet been decided by the Army Court of Criminal Appeals.

United States v. Miller.  Apparently convicted in 2011.

Shocking (if true)

The First Amendment is a foundation stone for American liberty. It permits authors and publishers to espouse and disseminate misinformation. Consider this gem titled "How about self-defense for soldiers?", from the Easton, Md., Star Democrat:
Shocking as it may seem, self-defense is not a bedrock right in some courts — specifically, U.S. military courts, where U.S. soldiers have seen their right to self-defense on the battlefield negated by murder convictions.
There follows a discussion of failed self-defense claims in three court-martial murder cases.

Then consider Rule for Courts-Martial (R.C.M.) 916(e)(1), found in the Manual for Courts-Martial:
(e) Self-defense.
(1) Homicide or assault cases involving deadly force. It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused:
(A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and
(B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm.

"If they had hope, they would speak"

From "If they had hope, they would speak": The ongoing use of state-sponsored sexual violence in Burma's ethnic communities, a November 2014 report by the Women's League of Burma:
[T]he interaction of Burma’s 2008 Constitution with the country’s judicial framework provides the Burma Army with de facto impunity from prosecution. There are a number of key Constitutional clauses which leave the military unaccountable to civilian courts, and afford them de facto freedom from prosecution for crimes committed as a result of official duty. Incidence of sexual violence, attempted rape, torture, forced displacement and other human rights abuses committed by military personnel remain almost exclusively dealt with by military tribunals. Despite the recent transferral of a case of sexual violence to a civilian court, there is not yet evidence to suggest this is precedent setting. In relation to cases dealt with under the court-martial system, it is not the Supreme Court but the Commander-in-Chief of the Defense Services whose decision is final. Furthermore, those cases which are tried under civilian courts are overseen by a judiciary that lacks adequate independence from the Executive and the military, and is neither impartial nor effective. The interaction of these elements of Burma’s polity creates an environment in which the Burma Army operates with impunity.
Although rape is criminalised under Article 375 of the Myanmar Penal Code, and Article 376 allows courts to sentence convicted rapists to life in prison, serious punitive action taken against soldiers responsible for these crimes continues to be largely non-existent. The lack of transparency in Burma’s judicial system undermines not only the ability of survivors of sexual violence to achieve redress, reparations and rehabilitation, but also the efforts of the local police to enforce the law. This mindset permeates every level of the judicial paradigm, and seriously affects the work done by local police to undertake criminal proceedings against military personnel.
Related Al Jazeera article here

Musharraf transfer request: "never mind"

Former Pres. Pervez Musharraf
Readers may remember that former Pakistani President Pervez Musharraf, under charges for high treason, had asked that his case be moved from the special court to military court. Now that he is to be tried jointly with others, he has withdrawn his appeal from the denial that request. This article from The Nation has details. The alleged abettors are a former prime minister, law minister, and chief justice, each of whom is consulting counsel.

Friday, November 28, 2014

An action in transparency

The Superior Military Tribunal (STM) in Brazil has initiated a project to give greater transparency and access to historical and other materials via the internet.  So reports bagete today.  The STM websites tells us there are 12 “circuits” in which military justice cases are heard.  The site also has a link to the military law conference Gene and others attended recently. 

There is now access to over 20 million pages of historical information from 1808 to 1989.  The collection includes documents from the First World War.  Legislation affecting military justice may be found at this link.

What a mess!

Chief Justice
Luis Gabriel Miranda
El Espectador has this report on an unusually messy case with a jurisdictional issue. It seems that the son of Chief Justice Luis Gabriel Miranda of Colombia's Supreme Court was arrested after having been observed in his vehicle with his girlfriend. He became abusive when policemen approached him, and was roughed up and arrested. The police want the assault charges against them to be resolved by the military justice system since they were acting in the line of duty. Their attorney, retired colonel Jorge Nelson Leon, is at the same time filing a complaint of judicial misconduct against the Chief Justice for using his judicial position to secure his son's release.

Update on the UN Committee against Torture

We noted here what I titled a nuanced U.S. position on torture.

Lawfare now reports: "On Friday, the United Nations Committee against Torture released its report (full text) on U.S. compliance with the Convention Against Torture."  It appears the report is "critical" in parts of the U.S.

The Guardian (UK) has a piece here, in which the paper argues:
In a review of the human rights record of the US, the first of its kind since 2006, the world body’s committee against torture slams the country for its ongoing violations of international treaties.

Will an outside observer suit the military suits?

Friend and colleague ASPALS blogs about a new development affecting British military personnel. 
26 November 2014, the Defence Committee held a pre-appointment hearing with Nicola Williams, the Government's preferred candidate for the post of Service Complaints Commissioner. Today, the Committee publishes a Report supporting her appointment (Sixth Report, Session 2014-15, HC 832).The Report is available on the Committee's website,
Here is a link to an explanation of the Service Complaints Commissioner's duties
The current Service complaints process was introduced by the Armed Forces Act 2006 and came into effect on 1 January 2008, replacing the separate single Service legislation and processes that had previously existed. The 2006 Act also established the office of the Service Complaints Commissioner. The Commissioner's role in the complaints process has two functions:
·  To provide an alternative point of contact for Service personnel, or someone acting on their behalf, such as a family member, a friend or MP, who for whatever reason does not have the confidence, or is not able, to raise allegations of bullying, harassment, discrimination or other improper behaviour directly with the chain of command; and
·  To providence independent assurance on the fairness, effectiveness and efficiency of the service complaints system to ministers, the Services and Parliament by way of an annual report. 
I wonder if this is also where the U.S. may be headed.  The Department of Defense and each of the Services have a Inspector General with appropriate investigators and examiners.  The DoD IG was created in 1982 as an amendment to the Inspector General Act of 1978.  A complaint may be made in several ways:  through Article 138, UCMJ, if the complaint is against the commanding officer; to a congressional representative; or through the relevant military inspector general.  The complaining individual is protected from retaliation by statute.

The IG covers a broad range of issues, many of them related to personnel.  One of the important current personnel issues relates to suicide and suicide prevention.  Here is the DoD IG report from 14 November 2014.

The integrity and effectiveness has been under significant challenge as a result of the military sexual assault problem.  A significant complaint has been about retaliation for making a sexual assault allegation.  Others have complained about the effectiveness of the various forms of redress, but there has been less visibility and traction for change until the military sexual assault interest.

ASPALS asks the provocative question, “The continuing march to civilianising [sic] the armed forces?” Consistent with the legislative proposals removing court-martial jurisdiction in regard to sexual assault cases -- well -- possibly coming to a military near you -- a fully civilianized external IG or complaints commission to replace that within the military.

Delay in IDF compliance with videotaping requirement

Haaretz reported in August (sorry for the delay) that the defense bar is objecting to the IDF's failure to videotape some interrogations. Here is some background from that article:
The law requires police to film the interrogation of everyone suspected of committing a serious crime – but this law does not apply to IDF soldiers. Since 2002, the law requires visual documentation of the entire questioning; but 12 years later the law does not officially apply to the defense establishment.
Lawyers who represent IDF soldiers say this seriously harms the rights of soldiers being investigated for crimes, and is discriminatory compared to citizens suspected of the same crimes. But after a five-year battle by the military defender’s office, there appears to be a change of heart in recent months. The Defense Ministry has formulated a regulation requiring such recording of interrogations for soldiers too, signed by Defense Minister Moshe Ya’alon. But the Military Police has been granted an eight-month period to “prepare” for the change before the new orders will be fully implemented. Serious crimes under the provision of this law are those that bear a possible prison sentence of 10 years or more.

General Panag talks of some topical issues confronting the Indian Military in Kashmir in this op-ed

Lt Gen H.S. Panag, IA (Ret)
Lieutenant General HS Panag is one of India’s most outspoken Generals. Though he is retired now, he did not mince his words even while in service.

In an interesting op-ed, he touches upon various topical issues confronting the military in Kashmir.

His honest take on the political situation, military justice and the Armed Forces (Special Powers) Act (AFSPA), can be accessed by clicking here.

By the way, the General was one of the founding members of the Armed Forces Tribunal (AFT).

PLA officers under investigation, several suicides

The Washington Times reports that there have been several suicides among the senior PLA officers who have recently come under investigation for corruption:
On Nov. 13, Vice Admiral Ma Faxiang jumped to his demise from a 15th floor window in the PLA Navy’s Beijing headquarters.
Days earlier, Maj. Gen. Song Yuwen, deputy commissar of Jilin military district, reportedly hanged himself. He was among eight flag officers who recently had been arrested on corruption charges.
On Sept. 2, Rear Admiral Jiang Zhonghua jumped to his death from a high-rise building on a naval base in Zhejiang province.

Col. Christensen to head Protect Our Defenders

Col. Don Christensen,
USAF (Ret)
Colonel Don Christensen, former chief prosecutor with the U.S. Air Force, will become President of the reform group Protect Our Defenders after he retires next month. He was trial counsel in United States v. Wilkerson, the case that helped spark serious congressional attention to the need for structural change after a three-star convening authority set aside a jury verdict. The organization's press release appears here. Click here for Stars and Stripes' story.

Petition-signing as a military crime in Burma

Major Kyaw Swar Win
A Burmese officer has been held incommunicado since April after he was photographed signing a petition that recommended changing the Constitution to remove military parliamentarians' effective veto over legislation. Maj. Kyaw Swar Win is one of nearly five million signers of the petition, according to this article in The Irrawaddy.

Klingenschmitt case decided by Court of Federal Claims

Ex-Lt. Klingenschmitt near the White House
Judge Elaine D. Kaplan of the United States Court of Federal Claims has handed down a decision in Klingenschmitt v. United States, No. 11-723C, granting the government's motion for judgment on the administrative record. The plaintiff is a former Navy chaplain who raised a host of issues, ranging from fitness report concerns to whistleblower retaliation to collateral review of a subjurisdictional court-martial. The opinion provides a grand tour of the various legal processes that can arise in seeking review of military personnel and disciplinary decisions. One assumes Rev. Klingenschmitt will appeal to the United States Court of Appeals for the Federal Circuit. [Postscript: he will.] According to this article, he is now a member of the Colorado House of Representatives.

Thursday, November 27, 2014

The numbers

This makes the 1000th post on Global Military Justice Reform. As of today, we have had readers in 130 countries, with nearly 70,000 hits. Thanks once again to our contributors, readers and commenters. Without you, the blog would not be possible. Please share the web address with friends and colleagues who are involved with this important topic.

Life sentences for Kenya deserters

Courts-martial presided over by civilian magistrates serving as judge advocates have started to wrap up proceedings in the series of Kenya Defence Forces desertion-in-wartime cases that have been hanging fire since earlier this year. According to this article, four have been sentenced to life imprisonment; 20 more are in the queue. The accused (who claim to have resigned from the service) left without permission in 2007-08 for the purpose of earning more by working for U.S. security firms in Afghanistan, Kuwait and Iraq. They were, they complain, tricked into returning to the military so they could pick up their separation papers. The Standard's report adds: "The public and media are barred from the three trials." Sigh.

Worth the read on rule of law

The (U.S.) Military Law Review has an article that may be of interest to the international military law community.

Major Katherine K. Stich, Customary Justice Systems and Rule of Law Reform, 221 MIL. L. REV. 215 (2014).

Her introduction begins:
A young U.S. rule of law (ROL) judge advocate (JA) and his Department of State counterpart are partnered with a local judiciary in Afghanistan, seeking to improve its justice system. They are discussing a murder trial with the criminal court’s chief judge in which the defendant was acquitted. The judge tells them that he informed the family of the deceased to take the matter to the local tribe for further redress, as they are unhappy with the outcome. The attorneys are torn: they respect the culture and its capacity for alternative dispute resolution, but feel this may undermine the government’s legitimacy and the very rule of law they are attempting to enable. The judge further explains that the court is overwhelmed by the current caseload and that the judge would like the attorneys to encourage tribal dispute resolution in some cases to alleviate prison overcrowding and trial backlog at least until the judicial system is more robust.
. . .
For the purposes of this article, CJS refers to those dispute resolution mechanisms outside the formal justice system, including traditional, tribal, religious, indigenous, and informal systems.  However, they sometimes possess an official connection to a state by recognition or regulation.

Martial law courts in Donetsk

The breakaway Donetsk authorities are instituting military courts.  According to this RAPSI report, authorities have announced that
. . . military field courts will be hearing cases of insubordination, murder, treason, espionage, sabotage, intentional destruction of property, looting, plunder, robbery, theft and damage to military property as well as desertion.
The military field courts will include five judges and two assessors from military personnel with no direct interest in the case. The military tribunal will consist of three judges. The head of the republic’s Council of Ministers will have the authority to appoint the chairs of the military field courts from among the personnel. The military field courts will be hearing crimes committed by servicemen ranked up to squadron commander while the military tribunal will prosecute martial leaders from battalion chiefs and higher.
Editor's Note: Global Military Justice Reform does not have a foreign policy. 

Happy Thanksgiving

Intrigue in Ankara

Today's Zaman has a strange tale of intrigue involving the Military Court of Appeals in Turkey. The opening paragraphs set the stage:
Muharrem Köse, a legal adviser to the General Staff, denied the remarks of a member of the military court of appeals, who claimed that Köse and some of the members of the court have connections with the “parallel state,” and said he will take legal action against the person making the claim for his comments.
Although the name of the member of the court has not been released, Köse stated that a defamation campaign aiming to discredit the members of the Turkish Armed Forces (TSK) and himself was launched in the eyes of the public.
“It has been understood that this baseless claim targeting the legal adviser to the General Staff and some of the members of the military court of appeals were based on a letter of advice that was fabricated by a member of the military court of appeals on active duty. Therefore, the accusations regarding the members of the TSK are baseless as they were brought forward by a member of the military court of appeals in order to affect ongoing administrative actions and discredit the glorious Turkish military. As a matter of fact, the military court of appeals has decided to launch an administrative investigation into the abovementioned member,” Köse said in a written statement.
Watch this space. Global Military Justice Reform will be following this case.

Wednesday, November 26, 2014


"I feel like military justice has been hijacked by a number of female senators and congresswomen."

Civilian defense lawyer (and retired Air Force judge advocate) Frank Spinner, quoted here by

N.Y. Times Sunday Magazine article on sexual assault in the military

The November 30, 2014 issue of The New York Times Sunday Magazine contains a lengthy and powerful article by Robert Draper titled "In the Company of Men." It is available online now, under the headline "The Military's Rough Justice on Sexual Assault." It's about the U.S. Air Force's Wilkerson case, which gave a big push to reform efforts. It's also about the people, including a smart, principled Air Force lawyer. There's a book or movie (or both) in this, but is there more legislation?

Sadly, a similar theme of military sexual assault

DVB reports: Burmese government soldiers continue to perpetrate sexual violence against women on a widespread scale with impunity, according to a Women’s League of Burma (WLB) report issued on 25 November, which the UN recently designated as “The International Day for the Elimination of Violence against Women.”  The report observes:
Between the elections of 2010 and January 2014, the WLB and our member organisations documented 104 cases of sexual violence against women and girls – a number we believe to be a fraction of the actual abuses taking place.
The majority of these cases are linked to military offensives, and their widespread and systematic nature indicates a structural pattern. The use of sexual violence in conflict is a counter-insurgency strategy, and is closely tied to control over resource rich ethnic areas. 
One of the calls for reform is for civilian control over the armed forces.

The continuing issue of military sexual assault is not limited to the U.S.

Today The Age (Australia) reports on continuing problems of sexual assault at the defense training academy. 
A landmark report into assault and abuse in the military has found that more than 1100 alleged abusers are still serving in the ranks. 
The Abbott government will meanwhile "seriously" examine the independent abuse taskforce's call for a royal commission into sexual assault and abuse at the Australian Defence Force Academy, government sources have said. 
The Defense Abuse Response Taskforce, and relevant documents can be found here.

A 55-minute video exploring the issue can be found at this link on YouTube.

Sadly, this reflects the U.S. experience.

Comments policy, encore une fois

Global Military Justice Reform has very few rules, but one of them is that, much as we welcome comments (and we definitely do), we will not publish anonymous comments. Please share your thoughts on what you find on this blog, but use your real name. It's the professional thing to do. Thanks.

Battle of the books

"No Time for Truth: The Marines, Justice, and the Haditha Incident," by Nathaniel R. Helms and Haytham Faraj, is due to be released on January 15, 2015, according to Amazon. Mr. Helms is "a Vietnam combat veteran, former Galveston, TX police officer, and investigative news reporter with extensive experience covering police and courts before reporting on the Yugoslavian civil war for seven months during early 1993." Mr. Faraj, a criminal defense lawyer who retired from the U.S. Marine Corps, was one of the civilian defense counsel in United States v. Wuterich.

In a post on Jurist  -- e.g., "Anonymity, invisibility and quiet, immediate implementation of predetermined sentence is the real goal" -- Mr. Helms, responding to an earlier Haditha Jurist essay by Kenneth F. Englade (noted here by Phil Cave), observes:
The Marine Corps rewards esprit and holds commanders who create grief for the institution ultimately responsible for their actions. The Marine Corps wanted [Lt Col Jeffrey Chessani's] head and worked diligently to obtain it. It didn't, however, anticipate he would be represented by a powerful civilian advocacy law firm with deep pockets and crackerjack lawyers. The mistakes that led to his complete exoneration began immediately after he was charged and didn't conclude until he was allowed to retire from the Marine Corps with his rank and integrity intact. It was not an accident. When the tenants [sic] of the UCMJ was [sic] challenged by competent authority, it could not withstand the scrutiny of precedent and withered on the vine.
It is easy now to look back on the painful seven years it took to bring the case to a close and point out the glaring legal errors, the evidentiary inconsistencies and lies, deceit and obfuscation practiced by all the players involved in the longest, most expensive and fruitless criminal prosecution in the history of the US. It however was not a conspiracy, or an attempt to cover-up criminal behavior; it was the validation of a unique, unfair and malleable UCMJ that has as much to do with justice as military music has to do with beautiful serenades.
Mr. Englade's Haditha book: Meltdown in Haditha: The Killing of 24 Iraqi Civilians by US Marines and the Failure of Military Justice will also be released in January, by McFarland & Co.

Colombian military justice bill passes third reading, 30-2

By a vote of 30-2, the pending military justice bill was approved by the First Committee of the Colombian House of Representatives in its third reading. Vanguardia has the story here. One criticism of the measure is that it permits military courts to try sex offenses. The last time Congress passed military justice reform legislation, the Constitutional Court set it aside for procedural irregularities.

Tuesday, November 25, 2014

No government appeal in Watts case

Darryl Watts
Major Darryl Watts, CF
CTV News reportsThe Canadian Forces says it will not challenge an appeal court ruling that overturned a Calgary soldier's conviction in a fatal training accident in Afghanistan.  The decision on a new trial is pending.

Similar issues arise in the U.S. when an appeals court overturns a conviction on legal error.  Some of the factors a U.S. convening authority considers are the views of any victim(s), the practical ability to reassemble the witnesses, and the strength of the case.

Interestingly (as of 2007),
More active members of the military died during two years of peacetime in the early 1980s than died during a two-year period of war in Iraq and Afghanistan, according to a government report.  ABC News reports that, "As an accident during a training bombing run today left six people dead in Kuwait, it may seem like the U.S. military has suffered an unusual number of fatal mishaps in recent months. But military statistics indicate serious accidents have been running at about their normal rate, and they have been generally decreasing over the past two decades.

U.S. non-combat military personnel may claim asylum in the EU

Gene noted earlier Advocate General Eleanor Sharpston concluded that non-combat military personnel may claim asylum in the EU, under European human rights legislation.  Just Security has a useful summary of that opinion here.

Monday, November 24, 2014

Convening authority refuses to dissolve panel in indelible indelible ink case

Major Zaidi Ahmad, RMAF
The convening authority in the indelible ink case of Royal Malaysian Air Force Major Zaidi Ahmad has refused to dissolve the panel despite evidence that the senior member of the court had expressed an opinion about the charges on Facebook. Major Zaidi's attorney is poised to take the matter to the civilian High Court. Details here.

Constitutional fight brewing over military courts in Thailand

A fight is brewing, according to this article, over the constitutionality of the Thai military courts. The argument is that the martial law charter preserves the country's treaty obligations, and since the country is a party to the International Covenant on Civil and Political Rights, citizens continue to enjoy the right to independent and impartial courts. Worajet Phakhirat, a law professor, argues that "the military court is under [the] control of the Defence Ministry and its trial under the martial law will be [a] one-court ruling." 

NGOs oppose Colombian bills

Seventeen NGOs have come out in opposition to pending Colombian military justice legislation, according to this article in El Tiempo:
"We note with deep concern the renewed legislative efforts of the Colombian government that would deny justice for human rights abuses including the extrajudicial executions committed by members of the security forces," say the NGOs, which include Amnesty International, Wola, the Robert Kennedy Center for Human Rights and the Working Group for Latin America (LAWG).
The signers refer in particular to Bills 085 and 022, which are currently pending in the House and Senate.
The first, say NGOs, requires that murder allegedly committed by a member of the security forces be tried by a military tribunal.
"Since cases of extrajudicial executions, including those known as 'false positives,' have been charged as homicides in the past, the adoption of this bill makes it likely that such crimes will be tried by military courts, which have often failed to deliver justice for human rights abuses committed by members of the security forces," the statement contends.
It added that the UN has warned in the past that the adoption of such a reform would represent a significant setback to efforts by Colombia to comply with its obligations under international humanitarian law and human rights.
The second (Bill 022, 2014 Senate) seeks to amend the Constitution so that "violations" of international humanitarian law and crimes committed by active duty members are tried by military courts, with the exception of crimes against humanity, genocide, extrajudicial killings, sexual violence, forced disappearance, torture and forced displacement. [Rough Google translation]

Sunday, November 23, 2014

Military law conference in Bogotá

Last week the Colombian Army, teaming with Javeriana University, the Superior Military Tribunal of Brazil, and the International Society for Military Law and the Law of War, sponsored a World Congress on Military Law at the Military Officers Club in Bogotá. The conference program is available at this link. Photos and other documentation will be posted in due course. Approximately fifteen countries, many in Latin America, but others as far away as Russia, Oman, Cameroon, the U.S., Canada, the Netherlands, Germany, Spain, and the UK, participated (as did Global Military Justice Reform).

Don't bet on transparency at NCIS

Remember the U.S. Navy admiral who was disciplined in connection with his gambling habit? Here is The Associated Press's report on additional aspects of the case, including DNA evidence suggesting that he had doctored $1 casino chips to look like $500 chips. Another AP report indicates that the DNA evidence was inconclusive:
Doubts about the DNA evidence are summarized in an email exchange between a [Vice (now Rear) Admiral Timothy M.] Giardina lawyer and an examiner at the Army laboratory that tested the DNA. In the emails obtained Sunday by the AP, the examiner affirmed to the lawyer that while the "major contributor" of the DNA found on the underside of the adhesive sticker that had been affixed by the counterfeiter was Giardina's, this did not necessarily mean he had touched the adhesive.
The examiner indicated it was possible that the Giardina DNA had migrated onto the adhesive when an Iowa state investigator removed the sticker to confirm that the chip was phony. Giardina had handled the chip during the poker game, so his DNA would have been on the outside of the chip and possibly along the edges of the sticker.
The examiner said either explanation — that Giardina had, indeed, touched the underside of the sticker, or that his DNA had migrated to the sticker while others were handling the chip — was equally possible.
Of interest is the fact that the Naval Criminal Investigative Service at first denied the AP's Freedom of Information Act request for NCIS's investigative report, but released it following an intramural appeal. What changed in the interim? Was the initial denial reflexive? BZ to the AP on some good (and persistent) journalistic work.

Violation of Schalit swap conditional pardons leads to re-sentencing

The Jerusalem Post has this exclusive report on IDF proceedings to re-sentence those who were released in the 2011 Sgt. Gilad Schalit prisoner exchange but thereafter violated the terms of their conditional pardons. The article reports:
[Defense counsel Merav] Hori contended [among other things] that since a negative court decision would send the releasees back to jail for extended terms, the standard of evidence for the proceedings should be similar to in criminal cases, even though the case is an administrative proceeding about whether they honored the terms of their pardons.

Under the Radar

Click here for Scripps News's investigative report on gaps in the U.S military's compliance with the sex offender registration system. A senior defense official who spoke anonymously with the Scripps team said: “This is not one of our primary missions in life.” The August 29, 2013 Department of Defense Inspector General Report, An Evaluation of DoD Compliance with the Sex Offender Registration and Notification Act, is available here. Rep. Jackie Speier (D.-CA) is on the case.

Court-martial conviction for threatening journalist's wife

In an unusual case, U.S. Army Sgt. First Class Michael Barbera has pleaded guilty to threatening the wife of a newspaper reporter who was covering another case in which murder charges against him had been dismissed without prejudice. Details of the case, including the terms of the pretrial agreement, can be found here.
Investigative reporter Carl Prine, who wrote the national award-winning report, tried a number of times to reach Barbera for comment. The threat charge against Barbera involves one of several calls made to Prine's home phone on Oct. 3, 2011. A male caller told Prine's wife, Deanna, that her husband needed to back away from pursuing a story about something that happened in Iraq in 2007.
“For your personal safety, I suggest you tell him he needs to stop working on this story,” she testified the caller told her.
Police traced the call to Barbera's cellphone number.
Col. Andrew Glass, a court-martial judge with the 4th Military Judicial Circuit that includes Lewis-McChord and Alaska, sentenced Barbera to a reprimand and a reduction in rank to staff sergeant — his rank at the time of the Iraqi killings — and ordered him to forfeit $1,000 in pay for 10 months.
SFC Barbera's sentence did not include confinement or a punitive discharge. He had professed his innocence on social material, according to the article. Concerning the earlier charges:
The Army in September announced that Lt. Gen. Stephen Lanza, commanding general of Army I Corps and the Lewis-McChord base and the convening authority for Barbera's general court-martial, decided to dismiss the murder charges “without prejudice,” meaning prosecutors retain the right to refile them.
The dismissal was necessary, officials said, because the unstable situation in Iraq with Islamic State militants makes it impossible for prosecutors and Barbera's defense team to get to As Sadah village to speak with the boys' relatives and others.

Jammu & Kashmir: a messy legislative picture

Chief Justice (ret) J. S. Verma
Muzamil Jaleel, writing from Srinagar, points out another dimension of the Armed Forces (Special Powers) Act in The Indian Express:
At a time when the National Conference and the PDP are engaging in one-upmanship over the Armed Forces (Special Powers) Act and the impunity enjoyed by the armed forces, another central act adopted by the Jammu and Kashmir assembly earlier this year omitted a provision that allowed prosecution of public servants, including personnel of police and the armed forces, for crimes against women without the need for prior sanction from central authorities.
After the Criminal Law (amendment) Act, 2013, was passed by the Centre following the Delhi gang-rape, the J&K assembly adopted the amendments in March this year. However, the state law left intact the need for sanction for prosecution of public servants. No party objected to the continued impunity provided to public servants.
This comes when parties continue to attack AFSPA. During the current poll campaign, CM Omar Abdullah accused the Congress and the PDP of not supporting him in his effort to get AFSPA repealed. The PDP’s Nayeem Akhtar, for his part, claimed his party would get AFSPA repealed, saying Omar didn’t take any concrete measures.
One of the major criticisms of AFSPA is that once the police file and investigate a case against members of the armed forces, they need sanction, which is frequently denied, from the Ministry of Defence (to prosecute army personnel) or Home (paramilitary forces). Responding to an RTI application, Integrated Headquarters of MoD (Army) in April 2012 revealed that 44 cases had been received during 1990-2011 for sanction for prosecution under AFSPA from J&K government. The Centre denied sanction in 35 of the cases while nine were “under process in MoD/integrated headquarters of MoD (Army)”. In one case, the Army conducted a court-martial and convicted and punished a soldier with dismissal and ten years’ imprisonment.
After the Delhi gang-rape, one of the key recommendations of the Justice J S Verma committee was that sexual offences by armed forces personnel be brought under ordinary criminal law. In Kashmir and the northeastern states, where too AFSPA is in force, the armed forces have frequently got immunity from prosecution in civilian courts after their personnel have been charged with rape. In submissions to the Verma panel, activists and lawyers such as Vrinda Grover had suggested deletion of the need for sanction for prosecution. AFSPA’s immunity clause is circumscribed by “good faith”; it should come into play only when personnel make a “bona fide mistake” during operations, but they have invoked it in rape cases too.
You have to read the full article to really get the picture, but it certainly seems odd that a core element of the legal process would differ from one region to another even though the AFSPA applies in both.

Amnesty response to recent Indian military justice activity

Amnesty International has issued this press release concerning recent military justice developments in India:
Amnesty International India welcomes recent measures taken by Indian Army authorities indicating a commitment to deliver justice for victims of human rights violations in Jammu and Kashmir. 
On 12 November, an army court-martial convicted five soldiers for shooting and killing three men in a ‘fake encounter’ – a staged extrajudicial execution - in Machil, Jammu and Kashmir, in 2010. The court-martial sentenced the soldiers to life imprisonment. 
On 7 November, the Army accepted responsibility for the killing of two Kashmiri teenagers by soldiers in Budgam district on 3 November, and stated that it was willing to cooperate with a state police investigation into the incident. 
“The military court verdict in the Machil case should be followed by justice for the many other cases of human rights violations in Jammu and Kashmir,” said Shailesh Rai, Programmes Director at Amnesty International India.  
“Too often, military authorities dismiss the complaints they receive about human rights violations. The government has told UN bodies that nine out of ten complaints about human rights violations by armed forces were found to be ‘false’, but refuses to disclose more details. The Pathribal case - where soldiers charged by the CBI with murder were let off by the army – was also a reminder that the military justice system do not always lead to justice. 
“For justice to be the rule and not the exception, all cases of human rights violations should be investigated and prosecuted by independent civilian authorities. The Machil verdict should mark a turning point for human rights in Jammu and Kashmir. ”
Thanks to Global Military Justice Reform contributor Navdeep Singh for the link.

That Spanish torture case

Arturo Maira Rodríguez, a retired Spanish naval captain, has written this op-ed for El Huffington Post concerning the decision not to pursue torture charges arising from a 2004 incident in Iraq in the military justice system:
We must also critically analyze the performance of Military Justice. The facts discussed constitute a "war crime of torture," according to the legal texts of the ICC. The UN Commission on Human Rights has published principles for the protection and promotion of human rights through action to combat impunity. Principle 29 (restrictions on the jurisdiction of military courts) provides:
"The jurisdiction of military courts should be limited to specifically military offenses committed by military personnel, excluding violations of human rights, which are the responsibility of the ordinary domestic courts or, where appropriate, in the case of offenses serious under international law, international or internationalized criminal court."
Definition B in the same document lists torture among the serious crimes under international law. Spanish Military Justice should have been blocked in order for the regular courts to know the facts. To do so now, when the regular courts are unable to complete the proceedings because of the statute of limitation is a mockery of citizenship and the rule of law.
Military Justice, created for military discipline, and whose career advancement depends on their chiefs, is not independent of either the command of the Armed Forces or the Government. It makes decisions tailored by command, protecting an alleged discipline that always works only from the top down, and often protects the excesses of the upper ranks from the just claims of lower ranking personnel, and ignores, as in the case before us shows, the standards and recommendations of international treaties and the UN. Military Justice must be suppressed for the sake of a single jurisdiction for all Spaniards. The most advanced countries in Europe in this regard, such as Germany, France, the Netherlands, Austria, Norway and Denmark, have transformed their systems, incorporating military jurisdiction within the ordinary courts and allocating jurisdiction to specialized chambers.
The dignity of our country and the protection of victims of torture are at stake and require closing the road to impunity. [Rough Google translation]

Due process and military personnel: separation of functions is needed

Axel Buchheister
From La Tercera comes this op-ed suggesting that Chilean military justice should change. Axel Buchheister, director of juridical studies at the Liberty and Development Institute, argues that the military courts perpetuate the combination of functions that Chile's civilian criminal courts got rid of years ago:
IN CHILE Criminal Procedure Reform came because the former inquisitorial system did not respect due process, a basic human right, by giving one person the roles of investigator, prosecutor and judge. But the country's double standard keeps it for a segment of the population: the military. They are the only ones who remain endlessly subject to the old system.
In cases of "human rights" proceedings continue to follow the old regime, even though nearly 10 years ago it ceased to apply throughout Chile. Appellate judges are appointed to conduct such proceedings, despite the fact that the Constitution prohibits the ad hoc courts ("special commissions"). This ignores the human right to a competent tribunal; and they are all properly "coordinated" by a judge of the Supreme Court, which contradicts the independence of judges and is not in any law.
But that is not the only exception to due process affecting the military. Consider the case arising from the plane crash in Juan Fernández. It is the responsibility of military justice, but it actually works like the old civil criminal jurisdiction: an appellate judge serves as investigator, prosecutor and judge. Military Justice definitely has to be reformed, but in one respect it always exceeded civil justice: there is no separation of functions . . . The hierarchical relationship between the judge and the prosecutor has been criticized, but it is even worse where they are the same person. But that changed a few years ago with the law providing for civilian judges to serve on the Military Court (as ad hoc judges), who investigate, accuse and decide. A disconcerting involution of due process.
*  *  *
What do you think of all this, National Institute of Human Rights? Because here and now they are violating the human rights of soldiers. Or doesn't it matter? [Rough Google translation]

Saturday, November 22, 2014

Watch for Scripps "Under the Radar" report tomorrow on flawed military system for registration of sex offenders

An investigative team from Scripps News has prepared a major report on gaps in the system for registration of individuals convicted of sex offenses by courts-martial. According to this press release:
After an exhaustive review of more than 1,300 military cases and sex offender registries from across the country, the Scripps national investigative team has uncovered disturbing truths about military sex offenders and the civilian world's efforts to track them.
Zimman Casey was an Army private first class when a military court convicted him of assault and "indecent acts" on a young girl and sentenced him to three years in prison. After his release in 2002 from Fort Sill in Oklahoma, Casey headed for Texas, where the convicted military sex offender effectively slid under the public radar, allowing him to prey again and again. By 2007, the former soldier had been convicted of sexually assaulting a minor under 14.
The investigation, Under the Radar, revealed that Casey is one of at least 242 convicted military sex offenders who returned to civilian life but do not appear on any public registry of sex offenders. Among their offenses: rape, sexual assault with a weapon and child molestation.
As a result of the Scripps investigation, law enforcement officials in three states are hunting for former Army Specialist Basil Kingsberry. Convicted of rape and forcible sodomy in a military court martial, Kingsberry hasn't appeared on a sex offender registry anywhere in the country in the nearly 10 years since his release. . . .
"Under the Radar" will begin airing tomorrow (Nov. 23, 2014) on Scripps television stations and digital outlets.

Friday, November 21, 2014

More about Jaloud

Phil Cave helpfully posted yesterday about the European Court of Human Rights Grand Chamber's decision in Jaloud v. The Netherlands. The decision merits study from a variety of perspectives. One that is of particular interest is the court's treatment of the objection that a member of the Arnhem Court of Appeal was a serving military officer. Background information from the judgment:
F.  The Military Chamber of the Arnhem Court of Appeal
64.  At the relevant time, Article 9 of the Code of Military Criminal Procedure (Wet militaire strafrechtspraak) provided that the benches of the Military Chamber of the Arnhem Court of Appeal should consist of two judges of the Court of Appeal, one of whom should preside, and one military member. The military member should be a serving officer holding the rank of captain (kapitein ter zee, Royal Navy), colonel (kolonel, Royal Army), group captain (kolonel, Royal Air Force) or higher, who was also qualified for judicial office; he was promoted to the titular rank of commodore (commandeur, Royal Navy), brigadier (brigadegeneraal, Royal Army) or air commodore (commodore, Royal Air Force) if he did not already hold that substantive rank. He could not be a member of the Royal Military Constabulary. The military member was appointed for a term of four years, renewable once for a further such term; compulsory retirement was at the age of sixty (Article 6 § 4 of the Code of Military Criminal Procedure).
65.  Section 68(2) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) provides that the military members of the Military Chamber of the Arnhem Court of Appeal participate as judges on an equal footing with their civilian colleagues and are subject to the same duties of confidentiality (sections 7 and 13 of that Act) and functional independence and impartiality (section 12); and also that they shall be subject to the same scrutiny of their official behaviour as civilian judges (sections 13a–13g). The latter involves review of specific behaviour by the Supreme Court (Hoge Raad), initiated, at the request of an interested party or proprio motu, by the Procurator General (procureur-generaal) to the Supreme Court.
This is what the court held on the applicant's objection:
iii.  The military member of the Military Chamber of the Arnhem Court of Appeal
195.  The applicant argued that the independence of the Military Chamber of the Court of Appeal was tainted by the presence of a serving military officer in its midst. The Government argued that the independence of the Military Chamber of the Court of Appeal was guaranteed.
196.  In the present case, the Court has had regard to the composition of the Military Chamber as a whole. It sits as a three-member chamber composed of two civilian members of the Arnhem Court of Appeal and one military member. The military member is a senior officer qualified for judicial office; he is promoted to titular flag, general or air rank if he does not already hold that substantive rank (see paragraph 64 above). In his judicial role he is not subject to military authority and discipline; his functional independence and impartiality are the same as those of civilian judges (see paragraph 65 above). That being so, the Court is prepared to accept that the Military Chamber offers guarantees sufficient for the purposes of Article 2 of the Convention.
This brief treatment of the issue would seem to doom the similar objection that was lodged in the Dutch case concerning whether Col. Thom Karremans and two other Dutchbat officers should be prosecuted in connection with the Srbrenica massacre.

Postscript: This is a potentially significant aspect of the decision, but despite its brevity and unanimous support, it leaves a variety of questions on the table. Looking solely at terms of office, it indicates that a serving officer can be independent even if the judgeship comes with a term only four years long (renewable once). This may not satisfy the Human Rights Committee and regional human rights treaty bodies. Would Strasbourg apply a different test if the court were composed of a majority, rather than a minority, of such officers?

Looking beyond judicial tenure, what if a system does not provide for titular promotion to flag or general officer rank? What if a uniformed judge remains subject to normal military authority and discipline? What if the judge is subject to judicial conduct discipline only by other military officers such as a uniformed Judge Advocate General, rather than by civilian judicial authorities?