Wednesday, January 17, 2018

Canadian Comprehensive Review

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

Amnesty International statement on Tunisia's misuse of military courts

Amnesty International has issued a powerful statement on the misuse of military courts in Tunisia. Excerpt:
Since 2011, at least 10 civilians have been tried before military courts in cases related to the free expression of opinions, usually for criticizing the army or state officials. In September 2016, a military prosecutor charged Jamel Arfaoui, an independent journalist, for undermining the reputation of the army in an article he wrote on a news website. In November 2014, Sahbi Jouini, a police union leader, was convicted in absentia and sentenced to two years in prison for defaming the army, after he accused the army of failing to use information adequately to combat terrorism. In May 2013, blogger Hakim Ghanmi was tried before a military court for “undermining the reputation of the army” after he complained about the director of a military hospital.

Women in the IDF

Haaretz contributor Roni Rosenberg raises questions about the treatment of crimes against women in the IDF. Excerpt:
After reading a number of books of judicial decisions by Israeli military courts in 2017, one learns that a woman's privacy, autonomy, body and dignity aren't worth much. These rulings dealt with photographing female soldiers in intimate situations, as well as distributing the video clips or the photographs to various groups. Any intelligent person understands that there is no greater damage to privacy, but in spite of that, the sentences handed down by the military courts in these cases are very light.

The damage caused to the female soldiers is such that in one case, one of the soldiers said she tried to commit suicide. The many studies written about such cases support the victims testimony. Although the military courts use harsh language in their decisions, when it comes to sentencing its an entirely different story: The sentences are very lenient, and fail to reflect the seriousness of the deed and create sufficient deterrence.

At the Supreme Court

JUSTICE [ANTHONY M.] KENNEDY: Do you think Marbury v. Madison is right? [Laughter.] Particularly as to the interpretation with such exceptions as Congress may make.

MR. [STEPHEN I.] VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice [John] Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but Bollman.

From the Supreme Court oral argument in Dalmazzi v. United States, January 16, 2018

Amy Howe's smart report on the argument can be found here and here.

Full disclosure: the Editor is one of the petitioners' counsel.

Monday, January 15, 2018

A clear and urgent legislative challenge: reforming the Canadian Military Justice system

January 15, 2018. In the wake of the publication of the Interim Report on the Court Martial System, an essay titled "Time for Parliament to legislate control over Canada's military criminal justice system" was published in the Parliamentary Precinct Weekly, Hill Times.

The authors, Joshua Juneau and Michel W. Drapeau remind readers that it is the legislature turn to study and undertake a systemic review of the military justice system, to provide sweeping recommended structural improvements, modernization and reforms to the National Defence Act as well as to provide sufficient civilian oversight to regulate and control the military establishment.