Wednesday, July 26, 2017

Parliamentary oversight of the Canadian military: very little

1.    As noted by the authors of  "CALLING THE HOUSE TO ORDER, above and beyond the occasional appearance by DND officials and military brass before a Parliamentary committee focusing on military matters or the publication of a periodic audit reports by the Auditor General, generally speaking, civil society in Canada exercises little oversight over the Canadian Armed Forces. 

Oversight is basically limited to the following three organizations:

Statutory bodies

First, the Court Martial Appeal Court of Canada [CMAC] which was established by section 234 (1) of the National Defence Act. The CMAC is a civilian court of criminal appellate jurisdiction which hears appeals from courts martial.
  • Summary trials. Of note, there is no independent and external oversight for the summary trials. As a result none of the 13,119 summary trials that have taken place over the past nine years has ever been subject of a review by a court of criminal appellate jurisdiction.

2007-2008:  2,123
2008-2009:  1,933
2009-2010: 1,942
2010-2011: 1,770
2011-2012: 1,425
2012-2013: 1,220
2013-2014: 1,128
2014-2015: 857
2015-2016: 721

 Second, the Military Police Complaints Commission [MPCC] a Canadian federal government independent, quasi-judicial body, established by the Parliament following the Somalia Inquiry Report. It offers avenues of complaints against the military police similar to that of civilian police. The MPCC makes non-binding recommendations to the Provost Marshall on ‘conduct’ and ‘interference’ complaints investigated by the Commission.

Third, the Military Grievances External Review Committee [MGER] which advertises itself as a Tribunal, but it is not. The Committee’s mandate is limited to reviewing a small number of grievances and making non-binding recommendations to the Chief of Defence Staff on grievances from the rank and file. 

Administrative body

There is a DND/CF Ombudsman, a position created by the Minister of National Defence, not Parliament. A far cry from the parliamentary Inspector General recommended by the Somalia Commission of Inquiry in the 1990s. The current Ombudsman structure has none of the statutory powers and independence of a true parliamentary ombudsman. The DND/CF Ombudsman makes non-binding recommendations.

In the broader field of Military Administrative Law there is basically very little if any oversight, save for the possibility to apply to the Federal Court of Canada for a judicial review of a particular decision. This  means by having the military granted a sort of carte blanche in its decision-making capability in a widening sphere of competence. 

 The Canadian military should embrace third-party oversight as an opportunity to learn and to improve. The military must not operate as if it were a parallel government – it is accountable to government and to Canadians whom they serve. However, the military are not always welcoming of such oversight and recommendations. Consider that, of the 46 recommendations made in 2015 by the MPCC following the Fynes Public Interest Inquiry. None of these 46 recommendations were formally “accepted” by military forcing the (then) Chairperson of the MPCC to conclude as follows:

In the limited number of instances where direct responses are given and reasons are provided for rejecting [our] recommendations, the reasons suggest a failure to recognize the seriousness of the deficiencies identified or a failure to understand the very nature of the issues to be addressed. Many of the responses nominally accepting the recommendations, as well as the few substantive comments made about the Commission’s findings, further confirm a general failure to acknowledge or even recognize what went wrong in this case . . . On the whole, the Notice of Action provided by the Military Police leaves the Commission and the Minister of National Defence (MND), as well as the parties and the public (assuming they are eventually allowed to see the Notice of Action), largely without meaningful answers.

Manipur ruling in Supreme Court of India

Human Rights Watch has issued the following statement concerning the decision of the Supreme Court of India in Extra Judicial Executions Victim Families Ass'n v. Union of India, Writ Pet. (Cr.) No. 129 of 2012:
India’s Supreme Court on July 14, 2017, ordered an investigation into alleged unlawful killings by government security forces in Manipur state from 1979 to 2012, Human Rights Watch said today. The court directed the Central Bureau of Investigation (CBI) to set up a five-member team to examine at least 87 killings by police, army, and paramilitary forces in response to a petition filed by victims’ families and nongovernmental groups in Manipur seeking investigation into 1,528 killings. 
The creation of a transparent, time-bound investigation team that has the full cooperation of local authorities would be an important advance for accountability in the Manipur killings. 
“There is finally some hope for justice for the families of the hundreds of men, women, and children who were killed by government forces in Manipur,” said Meenakshi Ganguly, South Asia director. “The Supreme Court order is a testament to the courage, hard work, and perseverance of victims’ families and rights groups.” 
The lack of accountability for serious abuses has become deeply rooted in Manipur because of the Armed Forces Special Powers Act (AFSPA), the 1958 emergency law under which the armed forces are deployed in internal conflicts and have broad powers to arrest, search, and shoot to kill. The law, which provides soldiers who commit abuses effective immunity from prosecution, is also used in other parts of India’s northeastern region and in the state of Jammu and Kashmir.
In a September 2008 report, “These Fellows Must Be Eliminated,” Human Rights Watch documented human rights abuses by all sides in Manipur, where close to 20,000 people have been killed since separatist rebels began their movement in the 1950s. The army, protected by AFSPA, committed widespread rights violations that fostered a culture of violence which encouraged similar abuses by the Manipur state police. 
The Supreme Court’s order follows its landmark decision in July 2016 that any allegation of use of excessive or retaliatory force by uniformed personnel resulting in death requires a thorough inquiry into the incident. The court added that such force was not permissible “even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists.” 
The court had initially set up a three-member committee under retired judge Santosh Hegde to investigate six of the 1,528 alleged extrajudicial killings, and in 2013 the committee informed the court that all six were unlawful. In July 2016, the court, ruling that the cases should be investigated, sought more information in each of the 1,528 cases from the petitioners, Extra Judicial Execution Victim Families Association and Human Rights Alert. 
The petitioners submitted additional information on 655 cases. In its final order on July 14, 2017, the court limited its directions largely to cases in which allegations were based on a judicial inquiry, an inquiry by the National Human Rights Commission, or an inquiry set up by Manipur state government under the Commissions of Inquiry Act. “It is not that every single allegation must necessarily be inquired into,” the court said. “It must be remembered that we are not dealing with individual cases but a systemic or institutional response relating to constitutional criminal law.” 
The court directed the CBI to file official complaints, known as First Information Reports (FIRs), in at least 87 cases, and then investigate, file charges where appropriate, and submit a compliance report by January 2018. 
The government and the army had opposed any investigation into the killings, asserting that all those killed were militants who died in counterinsurgency operations. The army said it cannot be subjected to FIRs for carrying out anti-militancy operations in insurgency-prone areas like Jammu and Kashmir and Manipur. 
The Supreme Court also noted that the state police not only failed to file FIRs against any police officers or other security force personnel in these alleged extrajudicial killings, but instead registered FIRs against the deceased for alleged violations of the law. The court stated: “Under these circumstances, it would be inappropriate for us to depend upon the Manipur Police to carry out an impartial investigation more particularly when some of its own personnel are said to be involved in the fake encounters.” 
Several government-appointed commissions and international bodies have recommended that the Indian government repeal AFSPA, but so far, the government has failed to take any action. 
“Fighting militant groups requires governments to make difficult decisions, but they cannot come at the cost of the rights to life and liberty,” Ganguly said. “To restore public confidence and prevent such abuses in the future, the Indian government should promptly repeal AFSPA.”

Uninformative journalism or unexplained judicial action?

The coverage of judicial decisions by news media is often deficient. Here is an example from India, where the Armed Forces Tribunal has suspended the sentences of five members of the armed forces, and granted them bail, in a high-profile matter known as the "Machhil fake encounter" case from Kashmir. The problem is that the media account gives absolutely no sense of why the AFT did what it did. Then again, is it possible that the court itself gave no explanation?

Tuesday, July 25, 2017

A final comment on a completely different court-martial

His Honor Judge
Jeff Blackett
The end.  British court-martial partly held in the U.S.

BLUF: A British court-martial is (almost) completely different from a U.S. court-martial.

But first, I must confess error in the delay in a final report.  All I can say is that work expanded to fill the time available.

The facts of the case are common and are similar to 90+% of adult military sexual assaults in U.S. courts-martial, so nothing different there.  Two co-workers socialize after work, they drink alcohol together, sex happens and the interpretation of the events splits into two opposite interpretations.

Opening statements.

            The openings appeared, to be a rather bland recitation of the facts that would be offered through the coming evidence.  Personally, I prefer the giving of a “road map” to the case, as opposed to the emotion laden openings I hear from U.S. military prosecutors.           Advocacy trainers in the U.S. tend to teach that the opening statement is your second chance to argue your case (the first being voir dire of the members).  So the difference between advocacy and presentation was noticeable.

The first witness and the first piece of evidence.

            The first evidence was the playing of a video recorded interview of the complaining witness with an investigator.  In a U.S. military trial, the complaining witness (any witness) would first have to testify. 

            Even then, the video might not be admissible.  In the U.S., the witness’s prior out of court statements are hearsay unless they fall within one of many exceptions to the hearsay rule—for example an excited utterance made under the stresses, strains, and emotions of a very recent event.  The video would not qualify as an excited utterance.  If you want, you can view Military Rule of Evidence 803 here.  Two other ways the prior out of court statement could be offered is as either a prior consistent statement to rebut a challenge to an in-court statement, or as a prior consistent statement of an in-court statement.  Although here it would be unlikely that the full statement would be admitted, just a clip from the video.

            Then we had a live witness—behind a screen—the complaining witness (CW).  First the bailiff brought in a screen which was placed on the shelf in front of the CW.  All the gawkers had been asked to clear the room (with salutes and bows) before the CW was brought in to sit behind the screen.  All the members and judge could see her, the prosecution could see her, but the accused and his counsel could not see her while she testified.  The screen was set so that the defense counsel could see her during cross-examination.  This would not have happened in a U.S. court-martial under the circumstances.  So, the accused did not really get the right to face his accuser in court, just hear her.  Of course, all of this seemed a little odd, because everyone had just watched a little over three hours of her on a video.

No, objections.  There were no objections during testimony.  Objections seemed to be reserved until the close of the prosecution case.  The sole objection came from the judge, outside the presence of the members, who asked if it was necessary to watch the whole 3+ hours of video.  At the prosecutor’s insistence, he allowed it.  We observed differing reactions to the video from the members which I will not be commenting on other than to say I’m not sure the full showing was effective.  There was plenty of hearsay which a U.S. military defense counsel might have been found professionally ineffective if there were no objection.

Timing.  Court sat from 1000 to 1400, with a lunch break.  I’m used to starting at 0830 and going to at least 1700.  On occasion, I’ve been in court until 0300, as have some of my colleagues.  So, suffice it to say the judge’s expression of concern for the “long day,” was—well it was completely different.

178 and counting . . .

During the night, Global Military Justice Reform achieved another landmark: our first known reader in Timor-Leste, bringing the number of jurisdictions to a whopping 178. At last count, we have had 3676 posts, 509 comments, and 452,489 hits.

Virtues of transparency on display in Jordan -- albeit belatedly

The New York Times reports here on the release of a video showing the Jordanian soldier's murder of three American Special Forces soldiers. Jordanian Air Force Sgt. Ma’arik al-Tawayha was convicted by a military court and awarded a life sentence, but this video was not released until afterwards, to rebut claims by his tribe that he had been railroaded. As the article points out, the video also makes clear that official Jordanian statements at the time of the murders were false.

1. Wouldn't it have been better all around to release the video much earlier?

2. Any bets on clemency?

Military court jails "shadow" judge in Venezuela

The misuse of military courts in Venezuela continues. Consider this report:
A Venezuelan military court has ordered the imprisonment of a lawyer that congress named to a shadow Supreme Court in a swipe at President Nicolas Maduro, a rights group and an opposition leader has said. 
Angel Zerpa, arrested Saturday, has been imprisoned and has gone on a hunger strike, said Foro Penal, a group that defends political prisoners in this oil rich country in the throes of a political and economic crisis. 
Opposition leader Henrique Capriles also said Zerpa had been imprisoned. Zerpa was denied the right to have an attorney of his choice with him when he appeared before the military court, Capriles said. 
"No lawyer, no due process, and going before a military court. What is this?" Capriles said in remarks on the social medium Periscope. 
Maduro warned Sunday that 33 judges whom the opposition- controlled congress designated last week as a sort of shadow Supreme Court would be arrested. 
So far, Zerpa is the only one known to have been arrested. 
The opposition says the current top court is packed with hardcore Maduro loyalists. 
Many of its justices were hastily appointed shortly before Maduro's ruling party lost its majority in congress in 2015 legislative elections. 
The Supreme Court said that by swearing in shadow judges, congress overstepped its bounds and committed treason.

Saturday, July 22, 2017

Union-Tribune drills down on "Fat Leonard" cases

The San Diego Union-Tribune has an excellent, detailed report on the administration of military justice in the "Fat Leonard" Navy corruption scandal. A few cases have been pursue in the civilian federal courts, but far more have been addressed within the military justice system or through the imposition of administrative sanctions. A good deal of information, especially about who has been punished below the flag officer grades, has been withheld from the public. One knowledgeable observer, a retired Navy JAG Captain, says the "Fat Leonard" cases are worse than the notorious Tailhook scandal. Tailhook at least ushered in a new era with respect to the treatment of women in the armed services. What will be the long-term fallout of the current cases?

Wednesday, July 19, 2017

Summary proceedings: Canada impermeable to worldwide advances in human rights legislation?


In a November 24, 2014 presentation before the UN High Commissioner for Human Rights in Geneva, Switzerland, Brigadier-General (ret’d) Arne Willy Dahl, Honorary President of the International Society for Military Law and the Law of War, noted that most countries have systems dealing with disciplinary offences of a minor nature by summary punishments. He observed: 
Summary punishments, is almost without exception a matter for the Commanding Officer, and may pose their specific concerns with regard to the human rights of the accused
BGen Dahl went on to say:
. . . Military justice has its roots in the authority of the commanding officer, and his need to maintain discipline among his troops. When Alexander the great took his army to Persia or Roman legions fought in North Africa it would have been utterly impractical to bring military cases back to a court in Macedonia or in Rome. 
             Canada's Summary Trial procedure is frozen in time
The requirement for summary proceedings was first recognized by the British Parliament with the passage of the Mutiny Act in 1689.  Two centuries later, summary trials were still in existence under British military law when the Canadian Parliament passed An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868to govern Canada's armed forces.     

In recent years, the European Convention of Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, in particular the United Kingdom and Ireland, to completely overhaul the Summary Trial procedure. 

As shown in the table below, the Summary Trial procedure, as practiced in Canada today, has been all but abolished among our allies. Along with many South Asian countries such as Bangladesh, India, Nepal, Pakistan and Sri Lanka, Canada is one of the last bastion for this ancient summary trial procedure. 


Nearly 800 military members in Canada face a summary trial each year. These disciplinary proceedings, which are heard by that soldier’s Commanding Officer, could lead to a sentence with ‘true penal consequences’ such as detention, demotion, a large fine, or a reprimand. A summary trial conviction may also result in a criminal record.  

Amazingly, however, there is no right to legal counsel at a summary trial even if the accused is being tried on Canadian soil nor is there a transcript of proceedings or a right of appeal.  Moreover, the Commanding Officer hearing the summary trial has no legal training. The Summary Trial procedure is also devoid of any rules of evidence, meaning there is no protection against the compellability of the accused as a witness and against self incrimination. There is no right to spousal privilege. Adverse inferences may be drawn from the accused’s silence and hearsay evidence may be taken and fully relied upon.

No other Canadian faces such a one-sided penal justice process


In 2015 Canada’s Parliament introduced Bill C-71 which was aimed at modifying the Summary Trial procedure. However, the authenticity for such reforms is questionable, because, with the dissolution of Parliament prior to the last Federal election, within weeks he Bill died on the order paper, and nearly two years since, there is no indication that it will be re-introduced.

Why is this journalist being charged before a military court?

A journalist in Cameroon is facing trial in a military court on charges of promoting terrorism. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. The African Charter on Human and Peoples' Rights has been interpreted to forbid such trials.

Why is this case being sent to a military court?

Crime Russia reports here on another case that has been sent to a military court:
The investigation of the criminal case against two members of the Shamil Basaev's gang Ramzan Belyalov and Magomed Mazdaev has been completed, the materials have been sent to the North Caucasus District Military Court, the press service of the Russian Federation's press service reports. 
Figures are charged with Terrorist Act, Banditry, Hostage Taking, and Illegal Storage of Narcotic Drugs. 
As established by the investigation, Belyalov and Mazdaev voluntarily joined the Basaev's gang, and afterwards took part in the commission of a number of grave and especially grave crimes. In particular, in the terrorist attack on Budennovsk, when an armed gang, a total of 160 people, attacked the city. As a result, 129 people were killed, 317 were injured, 1586 people were taken hostage.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Tuesday, July 18, 2017

Civilian oversight in Canada

Michael W. Drapeau and Joshua M. Juneau have published a new 70-page monograph titled "Calling the House to Order: After 70 Years of Peace It's Time for Greater Civilian Control over the Canadian Military Criminal Justice System." It can be downloaded here.

The study was presented at the 30th annual conference of the International Society for the Reform of Criminal Law in San Francisco, California on July 8-13, 2017. It calls upon the Minister of Justice to exercise her statutory ‘superintendence function’ so as to exercise greater civilian control over the Canadian military criminal justice system.

Summer doldrums

Not to worry, Dear Reader, Global Military Justice Reform has not gone missing. There's simply not that much going on right now. A few developments you may have missed:

  • It looks like the Philippines will extend martial law beyond its current geographical scope and duration.
  • The military appellate court in Pakistan has denied Kulbhushan Jadhav's request for clemency, which has now gone to the Chief of Army Staff; Jadhav's mother may get to visit her son. The Vienna Convention issue remains in play at the International Court of Justice.
  • A Jordanian military court has sentenced the soldier who killed several American soldiers to life imprisonment. (Watch for clemency.)
  • IDF Sgt. Elon Azaria has been granted house arrest pending appeal.
  • A Moscow military court has handed down sentences ranging from 11 to 20 years for the murderers of Russian opposition figure Boris Nemtsov.

Friday, July 14, 2017

Erosion of judicial independence of India's Armed Forces Tribunal

The Indian Express reports here on changes in the arrangements surrounding the Armed Forces Tribunal. Not good news for judicial independence:
The Union government has changed the rules governing appointment in the Armed Forces Tribunal (AFT), giving more powers to the Defence Secretary who would now have a role in ordering inquiries against members of the tribunal and their removal. 
Contravening a Constitutional Bench judgement of the Supreme Court which directed the placement of tribunals under the Law Ministry, the new rules reiterate that the AFT will function under the Ministry of Defence which, incidentally, is the ministry against which all orders of the AFT are to be passed. 
The rules also reiterate the role of the Defence Secretary in selecting the Members of the tribunal and even consultation with the Chief Justice of India (CJI) has been abrogated. 
The Defence Secretary and other bureaucrats would now have a role in ordering inquiries against members of the tribunal and their removal, which could only be undertaken by a Supreme Court judge till now. 
The facilities and benefits of retired High Court Judges appointed as Judicial Members have been downgraded to regular Group A (Class I) officers of the Central Government. 
While the SC had directed a longer tenure for tribunal members without a provision for re-appointment to ensure independence, the new rules have decreased even the existing tenure to 3 years and have provided for re-appointment by a selection committee, of which the Defence Secretary is a member. This, despite the fact that the Defence Secretary is the first respondent party in all litigation in AFT. 

Happy Bastille Day

Thursday, July 13, 2017

Australian military justice in a nutshell

The Conversation has posted this very short description of the Australian military justice system, following the publication of leaked defence force documents alleging that special forces personnel committed acts such as possible unlawful killings in Afghanistan.

Tuesday, July 11, 2017

Draft available of proposed Manual for Courts-Martial changes

The Defense Department has posted a notice of the availability of proposed changes to the Manual for Courts- Martial that would implement the Military Justice Act of 2016.

If you send in a comment to the government, please also post it on this blog so others will benefit. Don't forget to comment here using your own name, in accordance with R.B.R. 1.*

While it is of course a good thing that DoD is circulating these materials for public comment, as it has done since the Military Rules of Evidence were drafted, but hold the euphoria. The proposed changes implement a measure that was itself never the subject of a moment of congressional hearings open to the public. [Cue Bronx cheer for the House and Senate Committees on Armed Services.] An opportunity to comment on implementing regulations is better than nothing, but the fact is that in critical respects the horses have already left the barn.

* Global Military Justice Reform Blog Rule 1.

Saturday, July 8, 2017

GAO report on separation of personnel with mental health conditions

The San Antonio Express-News has this report on the "bad paper" separation of military personnel. Excerpt:
The Government Accountability Office reported in May that the military discharged almost 92,000 service members for misconduct from 2011 through 2015. More than 57,000 had been diagnosed with a mental health condition in the two years prior to their separation, and fewer than 3,500 received honorable discharges. 
The study identified post-traumatic stress disorder, traumatic brain injury and depressive disorder among nine conditions linked to misconduct. The military gave the most common diagnosis, for adjustment disorder, to nearly 32,300 men and women. 
The prevalence of that diagnosis alarms veterans advocates. They assert that the Defense Department has shifted tactics in an ongoing effort to remove rather than treat service members with mental health disorders to avoid the cost of providing them disability and retirement benefits.

Ticket to ride

The Speedboat War continues at Guantánamo, with the military commission judges in a pushing and shoving contest with the admiral who runs the place over whether they will get special transportation to and from the business end of the base or have to ride the ferry like everyone else. Carol Rosenberg has the story here.

Friday, July 7, 2017

Is the UCMJ a suitable model for dealing with police killings?

Prof. Ronnie Dunn
Professor Ronnie Dunn of Cleveland State University tosses out the following idea in this interview:
And my mind keeps turning to the military, for example. I'm a veteran. And the military is held to the standards of the uniform code of military justice. So my thought is, in that the police are a paramilitary institution, that we might need to -- and this is totally thinking out of the box -- move to some type of judicial system or tribunal in regards to police-involved shootings, these controversial police-involved shootings. These cases are tried in a separate court, for example. Currently, many jurisdictions have drug courts, they have special dockets for veterans and other things of that nature. So I'm just trying to think of how we might be able to move to a system that can provide a greater degree of accountability and justice.
It's not clear whether he is suggesting a system of internal criminal discipline à la the UCMJ or a separate part of the civilian courts with special jurisdiction over charges arising from police killings. Is either a good idea? Or neither?

Justice Leonen's "Mindanao" dissent

History teaches us that to rely on the iron fist of an authoritarian backed up by the police and the military to solve our deep seated social problems that spawn terrorism is fallacy. The ghost of [Ferdinand] Marcos’ Martial Law lives within the words of our Constitution and rightly so. That ghost must be exorcised with passion by this Court whenever its resemblance reappears.

Never again should this court allow itself to step aside when the powerful invoke vague powers that feed on fear but could potentially undermine our most cherished rights. Never again should we fall victim to a false narrative that a vague declaration of martial law is good for us no matter the circumstances. We should have the courage to never again clothe authoritarianism in any disguise with the mantle of constitutionality.

The extremist views of religious fanatics will never take hold in our communities for so long as they enjoy the fundamental rights guaranteed by our constitution. There will be no radicals for so long as our government is open and tolerant of the activism of others who demand a more egalitarian, tolerant and socially just society.

We all need to fight the long war against terrorism. This needs patience, community participation, precision and a sophisticated strategy that respects rights while at the same time using force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism.

We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent–even resist–when offered the farce that Martial Law is necessary because it is only an exclamation point.

Marvic M.V.F. Leonen, J., dissenting in Lagman v. Medialdea, the Mindanao Martial Law case, Supreme Court of the Philippines

Special Jurisdiction for Peace -- unresolved questions

Human Rights Watch has raised serious questions about the "Special Jurisdiction for Peace" provided for in the Colombian peace accord. Excerpt from the NGO's statement:

The [Constitutional C]ourt should limit a broad provision allowing FARC guerrillas to seek or hold public office even while serving sentences for grave abuses, Human Rights Watch said. Such a change should ensure that sanctions against them are carried out fully and unconditionally. The Constitutional Court should also fix the amendment’s narrow definition of “command responsibility” –the basis on which military commanders can be held criminally responsible for crimes committed by their subordinates. The definition in the amendment is inconsistent with international law, Human Rights Watch said, and could allow senior officers of the Colombian Armed Forces to escape justice.
*   *   * 

Definitions of “command responsibility” proposed during the peace process that will eventually apply both to military officers and guerrilla commanders, have drawn concerns repeatedly from Colombian rights groups and various international organizations, including the International Criminal Court (ICC) prosecutor. Human Rights Watch has criticized definitions proposed as applicable to both parties to the accord, including one applicable to FARC guerrillas that has yet to become law. In January 2017 Human Rights Watch wrote to legislators criticizing the definition proposed then for senior officers of the Armed Forces—identical to the one passed in Constitutional Amendment 1 of 2017— as distorting international law in a way that could severely weaken accountability. 
Between 2002 and 2008, army brigades across Colombia killed more than 3,000 civilians, in what are known as “false positive” cases. Under pressure from superiors to show “positive” results and boost body counts in the war against guerrillas, soldiers abducted victims or lured them to remote locations under false pretenses. The soldiers killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. 
While more than 1000 soldiers have been convicted for these crimes, few commanders who led brigades responsible for the killings and later rose through the military ranks have been held accountable. It is still unclear whether the Special Jurisdiction for Peace –which will hear cases of crimes related to the armed conflict– will handle these cases.
“If the Special Jurisdiction for Peace handles false positive killings and applies the legislature’s distorted definition of command responsibility, senior officers responsible for these appalling murders may never face justice,” [HRW's José Miguel] Vivanco said.

Congress at work

Sen. Joni Ernst (R.-IA) has issued a statement trumpeting her many contributions to the current proposed National Defense Authorization Act for FY2018, a couple of which concern military justice. Among the many others on her list of bullet points:
25. A provision recognizing the risk of Foot and Mouth Disease, or other foreign animal disease, to our food production economy and our national security. It directs the Department of Defense and Department of Agriculture to analyze our ability to response to such an attack.
Good to know. It would be interesting to know where this proposal originated.

Will Omar Khadr get to keep it?

The Globe & Mail reports here on efforts by the widow of a U.S. soldier killed by Omar Khadr and another soldier who who was blinded to levy against any award by Canada. Excerpt:
Mr. Khadr’s long-time lawyer, Edmonton-based Dennis Edney, said he was not aware of the court application. (According to the court file, it had not yet been served on Mr. Khadr or his lawyers.) But Mr. Edney said any attempt to redirect compensation owing to Mr. Khadr could result in a major legal battle. 
“I don’t understand what basis in international law that they have in being able to sue Omar Khadr for the death of Christopher Speer on a battlefield, when there is absolutely no evidence that he did [what is alleged] other than Omar Khadr’s own admitting to it while being tortured in a place that is renowned for torture,” said Mr. Edney, who would not otherwise comment on the reports of a settlement for his client. “... They are going to have quite a fight.” 
University of Western Ontario law professor Stephen Pitel, an expert on questions of jurisdiction and the recognition of foreign judgments by Canadian courts, said that although Canada’s rules are “pretty liberal,” getting this Utah ruling recognized here could be an uphill battle. 
Prof. Pitel said the plaintiffs will need to show how the Utah court had proper jurisdiction over both a battlefield incident in far-off Afghanistan and a defendant who did not show up to court because he was in prison. Mr. Khadr’s lawyers could also fight the recognition by arguing that it offends the principle of “natural justice” or Canadian “public policy.” 
But Prof. Pitel said Ms. Speer and Mr. [Layne] Morris may be helped by a recent Ontario Court of Appeal ruling, released just last week, if it stands. In a sprawling case known as Tracy v. Iran (Information and Security) [2017 ONCA 549 (June 30, 2017)], Ontario’s highest court upheld a lower court decision and sided with Americans seeking to enforce U.S. judgments against Iran and demanding compensation for victims of Iranian-sponsored terrorism. 
“There are a lot of legal issues here, and it is going to take a while to unravel them,” Prof. Pitel said.
Of course, the parties could also reach a settlement . . .

It is unclear whether Canada has already paid Mr. Khadr. If so, efforts to execute the U.S. judgment against him could be further complicated.

Thursday, July 6, 2017

Recruit training -- "a culture of brutality"

The New York Times Magazine has posted this disturbing article by Janet Reitman, titled "How the Death of a Muslim Recruit Revealed a Culture of Brutality in the Marines." Excerpt:
On Aug. 7, nearly a year and a half to the day that Raheel Siddiqui arrived on Parris Island, Gunnery Sgt. Joseph Felix will stand trial, a proceeding expected to last at least two weeks. The charges against him are technically violations of military discipline; he has not faced broader criminal charges like assault. The Siddiqui family thinks the charges are insufficient. ‘‘We were advised that an assault charge was not brought because the [other charges] carried a harsher penalty,’’ says Shiraz Khan, the family’s lawyer. ‘‘Well, the elements of assault are much different, and so are the implications. The systemic hazing, abuse and maltreatment suffered by Raheel Siddiqui while at Parris Island was not the result of a single incident by one individual. We aren’t blind to what Raheel’s body and autopsy say.’’

Detention of Venezuelan military personnel by Maduro regime

Reuters claims today to have seen Venezuelan military documents that show that 123 members of the Venezuelan armed forces have been detained since anti-government unrest began in April on charges ranging from treason and rebellion to theft and desertion.

Reportedly, the list of detainees, which includes officers as well as servicemen from the lower ranks of the army, navy, air force and National Guard, provided the clearest picture to date of dissatisfaction and dissent within Venezuela's roughly 150,000-strong military. The records, detailing prisoners held in three Venezuelan jails, showed that since April nearly 30 members of the military have been detained for deserting or abandoning their post and almost 40 for rebellion, treason, or insubordination. Since the opposition started its protests more than three months ago, a handful of security officials have gone public with their discontent. Last week, rogue policeman and action movie star Oscar Perez commandeered a helicopter and attacked government buildings, claiming that a faction within the armed forces was opposed to [Nicolás] Maduro's government.

"Proud boys" and free speech

An interesting issue has arisen in Canada, as chronicled here by CBC News. When a group of First Nations activists held a protest at a public site in Halifax, NS, on Canada Day, it was disrupted by off-duty military personnel who call themselves "the Proud Boys." Excerpt:
The members of the Canadian Armed Forces who disrupted a protest organized by Indigenous activists in Halifax on Canada Day will be removed from training and duties as the military investigates and reviews the circumstances, says the country's top general. 
"We are the nation's protectors, and any member of the Canadian Armed Forces who is not prepared to be the defender we need them to be will face severe consequences, including release from the forces," Gen. Jonathan Vance, chief of defence staff, said in a statement Tuesday night. 
On Saturday, a gathering of Indigenous people and activists held a protest at the Edward Cornwallis statue in downtown Halifax. The protest was disrupted by five off-duty military members wearing black polo shirts who referred to themselves as Proud Boys. 
Cornwallis, a governor of Nova Scotia, was a military officer credited by the British for founding Halifax in 1749. Later that year, he issued a bounty on the scalps of Mi'kmaq people. There's been considerable debate over the use of Cornwallis's name on public parks, buildings and street signs. 
"What happened in Halifax over the weekend is deplorable, and Canadians should rest assured my senior leadership is seized of the matter," said Vance. 
"The members involved will be removed from training and duties while we conduct an investigation and review the circumstances. Their future in the military is certainly in doubt."
Free speech issues are at stake, much as they are when serving personnel engage in hate speech of one kind of another, as has happened in other countries, sometime through the misuse of social media. What is the responsibility of military commanders in these circumstances? Does it matter that the personnel were out of uniform? If no civilian law was violated, should these people be subjected to military discipline?

Wednesday, July 5, 2017

Mindanao martial law decision available

The opinions in the Mindanao martial law case, Lagman v. Medialdea, G.R. 231659 (Phil. July 4, 2017), are now available on the website of the Supreme Court of the Philippines.

New law gives military prosecutor power to bring charges; can you guess where? (Hint: not the US)

The National Assembly of Burkina Faso has approved a bill that would, among other things, shift the power to initiate military court prosecutions from the Minister of Defense to the military prosecutor, according to this Le Pays report (en français). 

United States v. Khadr -- Canada to pay, but who will collect?

Canada has agreed to pay Omar Khadr, who was convicted by a U.S. military commission, some $10,000,000 and to issue an apology, based on Canada's involvement in his interrogation at Guantanamo Bay. Meanwhile, the widow of a U.S. soldier he killed and another soldier he wounded are initiating proceedings to collect the state court money judgment they obtained against Khadr in the U.S. Details here. Excerpt:
Tabitha Speer and Layne Morris allege Mr. Khadr was responsible for the death of Sergeant Christopher Speer and Mr. Morris’s injuries in Afghanistan. Two sources say they are expected to ask the Ontario Superior Court as early as Wednesday to uphold a 2015 Utah civil court judgment ordering Mr. Khadr to pay them $134-million (U.S.) for his actions in Afghanistan. 
“They are trying to get an emergency injunction in a Canadian court to have their award in the United States enforced in Canada,” one source said. “Their desire is to have U.S. courts enforced in Canada, which would mean that any money that goes to Mr. Khadr would go to them.”

Threat to judicial independence in Suriname

Pres. Desi Bouterse
Surinamese President Desi Bouterse, on trial in the so-called "December Murders" case, has threatened the military judge, as reported here by the Daily Herald. Excerpt:
Guno Castelen, the chairman of Suriname’s labour party SPA, is worried about “subtle threats” President Desi Bouterse has launched at the judiciary. Discussing the twenty-year prison demand the Military Prosecutor called for last week Wednesday, Bouterse criticised the judiciary and said that his Government would soon come with “necessary measures … within the confines of constitutional law.” 
He did not specify what he meant exactly, but it was enough reason for Castelen to be worried. The opposition Member of Parliament (MP) said Bouterse is obviously trying to intimidate the judge in the case. “He singled out the judge and that is cause for concern,” the SPA leader said. 
The prison demand for Bouterse was lodged by Military Prosecutor Roy Elgin at the height of the tediously moving December Murders trial; Bouterse and 24 other defendants are on trial for the killings on December 8, 1982, of 15 opponents of Bouterse’s then military rule. Elgin also demanded 20 years for another former soldier who is a defendant in the case. For three other defendants he has demanded that the cases against them be dismissed. The trial is ongoing. 
Bouterse, who is serving his second term as the democratically chosen President, responded with scorn to the prison demand. “If God put me here as President, who is a judge to send me away?” he asked on Friday at a meeting with prominent members of his National Democratic Party (NDP). 
Castelen said it was remarkable that the President would take aim at the judge, while at this stage it’s the Military Prosecutor who called for a prison sentence and the judge is not even in play yet. “The President knows the difference between a prosecutor and a judge full well, as much as he knows the difference between a demand and a sentence. He knows that we are past the phase of prosecution and that it is now up to the judge to decide whether and for how long he will go to prison. The fact that he mentions the judge hints that he wants to send a signal. And that signal is meant for the judge,” the SPA leader said.
The trial began in 2007. 

Tuesday, July 4, 2017

Mindanao martial law upheld

By divided vote, the Supreme Court of the Philippines has upheld the imposition of martial law on Mindanao. According to this notice tweeted by the court's public information office, the opinions will be released tomorrow and will presumably be posted on the court's website.

Query: will military courts come next?

Monday, July 3, 2017

Liberian UCMJ to be updated

The speaker of Liberia's House of Representatives is taking steps to move ahead on four long-delayed bills. One of them concerns military justice:
The Uniform Code of Military Justice (UCMJ) aims to reform the military as it rebuilds its forces with an emphasis on human rights and professionalization, including ensuring continued progress and that members act according to the rule of law. 
The law will also discuss pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, among others.
This Daily Observer article is sparse on details. The second quoted paragraph seems to track Article 36(a), UCMJ.

Blog contributor Susan Finder in the news

Global Military Justice Reform contributor and big-league China scholar Susan Finder is the subject of this interview with The News Lens. Excerpt:
TNL: You have a fantastic blog [Supreme People's Court Monitor] and you write prolifically in this area. How transparent is the system and what are the resources and sources you use to monitor the courts? 
Finder: The system is not very transparent. But it is an enormous improvement from 20-plus years ago when I first started looking into the Supreme People’s Court. You now have this online database of court judgments. There are studies that show some provinces are better than others, some judges don’t want to upload cases to the database, but it is a big step forward, despite the various limitations there are. 
As far as my own sources of information; I use WeChat, that is one of my big sources, because I can get multiple voices. The Supreme People’s Courts and other courts have their own WeChat outlets, so I can get the latest official documents. There are also many other voices.

Sunday, July 2, 2017

Filing appeals by the Ministry of Defence against favourable disability pension verdicts: a dark chapter comes to a close

Mindless filing of en masse appeals by India’s Ministry of Defence against verdicts of Courts and Tribunals granting disability benefits to disabled soldiers was a major sore point with military veterans.

Thankfully, though reluctantly, the dark chapter seems to have come to an end with a decision having been taken not to pursue such appeals.

A detailed post on the recommendations on this issue (amongst many others) by a Committee of Experts constituted to reduce litigation, and other aspects of this latest development, is available on my blog.

The story has also been covered by The Times of India.

al Qosi case back in the news

Carol Rosenberg
Considering how few cases the military commissions at Guantanamo have tried, they continue to generate interesting issues. The latest, as reported here by the Miami Herald's Carol ("dean of the Guantanamo press corps") Rosenberg, concerns whether automatic appellate review of the case of Ibrahim al Qosi, who has been released from custody, can proceed if his post-release conduct shows him to be an alien unprivileged enemy belligerent. A factfinding hearing has been ordered.

A national myth

Raza Rumi
Raza Rumi, editor of Daily Times, writes here of five Pakistani myths that need to be "buried for good." Excerpt:
Since the ‘historic’ lawyers’ and judges’ movement, we have been hearing that doctrine of necessity has been buried. Proud pronouncements from the Supreme Court of Pakistan often repeated by analysts and politicians do their rounds. While the courts certainly are far freer than they were before, the doctrine of necessity is very much alive and kicking. Take the example of military courts. The apex court ratified military courts established after the 2014 terror attack in Peshawar that killed children and teachers in an army school. The court upheld them and many outspoken lawyers and ostensibly independent analysts also supported these courts. In March of this year, the National Assembly passed 28th Constitutional Amendment Bill that revived the military courts after the initial two-year period was over. It requires no rocket science to note that that such courts are violative of citizens’ rights to fair trial, legal counsel, etc. as guaranteed by the Constitution. There are countless instances where the courts have passed verdicts that fall into the ambit of doctrine of necessity -initially used in 1950s to uphold a constitutional subversion - without naming it. Sixty years later, it remains pretty much a convenient ploy to justify the power arrangements in the country.


Global Military Justice Reform uses Google's built-in (i.e., free) "Blogger" analytics, from which we are able to tell where visitors are located. Hits over the last day from Russia outnumber hits from the United States by better than 3:1, despite the paucity of posts about Russian military justice reform. This has happened from time to time in the past as well.

Makes you wonder.