Monday, March 31, 2014

Quote of the day

Mrs. Claire Blackman, the wife of Sgt Alexander Blackman of the Royal Marines (whose case is to be heard this week by the Courts Martial Appeal Court):
“They [the seven members of the court-martial board] were all senior officers, and he is a senior NCO, a non-commissioned officer. A civilian jury would have had a better understanding of the situation from a more neutral and equitable starting point. Rank does not play a part in a civilian jury.”

Chinese general officer charged

Lt. Gen. Gu Junshan
The United States turns out to have no monopoly on general officer courts-martial. Chinese military prosecutors have charged Lieutenant General Gu Junshan with bribery, embezzlement, misuse of state funds and abuse of power. According to the South China Morning Post, "[h]e is the highest-ranking officer to stand trial on such charges since Vice-Admiral Wang Shouye in 2006, who received a suspended death sentence for embezzlement." The unfolding case could shine a light on the administration of justice in the People's Liberation Army.

Danish Military Prosecution Service

The Danish Military Prosecution Service has posted a useful introduction to the military justice system under reforms that took effect in 2006. The MPS is outside the chain of command, and makes the decision whether to prosecute military criminal cases. Commanders deal with disciplinary cases, while military criminal cases are tried before the ordinary courts, courts-martial having been abolished 95 years ago. If a commander is uncertain whether a case should be treated as criminal or disciplinary, the matter is presented to the military disciplinary chief. If that official is in doubt, the MPS makes the decision.

Military criminal cases include, in peacetime, those arising under the Military Penal Code or, if the offense is related to or committed in connection with military service or on base, the Civil Criminal Code and other penal legislation. Forty percent of the criminal cases arise under the Military Penal Code. Civilian and Home Guard personnel are not subject to military criminal law.

Sunday, March 30, 2014

Military courts in China: clearing the civil cases backlog

Susan Finder's Supreme People's Court Monitor has an extremely interesting post about efforts to clear the backlog of civil cases in the Chinese military court system. She writes:
The [People's Liberation Army] Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.
We hope Ms. Finder continues her important work so the Chinese military legal system will become better understood than it currently is. Access to decisions of the military courts would be a big improvement.

Quote of the day

Justice (ret) Gilles Létourneau writes in the Ottawa Citizen:
Military tribunals are tribunals of exception and, by definition, the law governing them often derogates from the law applicable to and the rights conferred upon civilians. The ensuing derogations are more serious if the military tribunals are invested with the power to try ordinary criminal offences which would normally be tried by civilian tribunals.

Disappearance case to be tried by court-martial

Justice Amir Hani Muslim
Two Pakistan Army officers previously assigned to the Frontier Corps who have been accused of forced disappearances in Balochistan will be tried under the Army Act 1952 rather than in the civilian courts. Relatives of the disappeared persons have complained that they would not have access to military trials, but Justice Amir Hani Muslim sought to reassure them that the officers' cases would in the end be subject to review by the Supreme Court.

Friday, March 28, 2014

Possible service academy reform in the Philippines

Defense Secretary Voltaire Gazmin
Cadet Jeff Cudia
Just as reform issues arise in military justice systems around the world, calls for reform can also arise in the special context of service academies, as witness a current controversy involving the Philippine Military Academy. "While standing by the honor system, Defense Secretary Voltaire Gazmin (PMA Class ’68) has said that it also needs updating to be attuned to the times, notably the need to adhere to the principle of human rights." Other alumni are opposed to change. The debate was sparked by the dismissal of Cadet Jeff Cudia based on a claim that he violated the academy's honor code. Cadet Cudia, who has taken his case to the Supreme Court, hopes to attend law school.

The ICCPR and U.S. military justice

On March 26, 2014, the UN Human Rights Committee adopted Concluding Observations on the Fourth Report of the United States, CCPR/C/USA/CO/4. The committee encouraged the United States "to engage with stakeholders at all levels to identify ways to give greater effect" to the International Covenant on Civil and Political Rights.
Taking into account its declaration that provisions of the Covenant are non-self-executing, [the U.S. should] ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps. The State party should also consider acceding to the Optional Protocol to the Covenant providing for an individual communication procedure.
Military justice is a prime area in which legislative action is needed to render U.S. law Covenant-compliant or, failing that, to provide meaningful domestic remedies for violations of the ICCPR.

Another landmark

As of this morning, Global Military Justice Reform has had over six thousand hits from readers in 68 countries.

Will justice and fairness prevail? - a view from the UK

Gilles' powerful rejoinder to the thought provoking article by Lieutenant-Colonel Strickey points out the many reasons why the military justice system must remain independent of the chain of command and why, especially at summary dealing/CO level, there is grave concern about the absence of proper safeguards. The UK has gone a little way to addressing these concerns at summary dealing, following the decisions of the ECtHR in Thompson -v- United Kingdom (2004), ECtHR, Application N° 00036256/97 and Bell -v- United Kingdom (Appeal) (2007) Application no. 41534/98. In the Armed Forces Discipline Act of 2000, a new Summary Appeal Court was created which is compliant with the ECHR. It is presided over by a civilian judge advocate and two serving members, one of whom may be a Warrant Officer. The appeal is by way of re-hearing, whether in respect of conviction or sentence. The normal rules of evidence (eg relating to admissibility and hearsay) apply, even if they were absent during the CO's hearing.  

All the same, the concern over summary dealing is not completely alleviated by these measures, as the majority of Service personnel dealt with by COs, who do not then appeal to the SAC, do not realise that the CO's finding could lead to an entry on the Police National Computer. As an example, a soldier who has an accident in a military vehicle and who is dealt with by his CO for an offence of damaging Service property, has a recordable conviction. Similarly, being found guilty by the CO of an assault would result in a recordable conviction. Yet these are proceedings without the right to legal representation and where, as Gilles so rightly points out, a lay CO may be exposed to hearsay evidence when ignorant of the rules of evidence, or is faced with complex issues relating to identification. While it is true that he may have written advice from a legal officer to assist him, he is generally not a lawyer and may not spot these problems as they arise when hearing the case.

Thursday, March 27, 2014

Will justice and fairness prevail?

His Honour Judge (ret)
Gilles Létourneau
In his article entitled Anglo-American’Military Justice Systems and the Wave of Civilianization: Will DisciplineSurvive?, Lieutenant-Colonel S.S. Strickey of the Office of the Canadian Judge Advocate General asks whether discipline will survive as a result of what he calls civilianization of military justice.

The issue in Canada is not about civilianization of military justice. Far from it. It is about justice itself. It is about justice and fairness to soldiers who, as Canadian citizens, are entitled to it as much as civilians when it comes to the military prosecution of ordinary criminal law offences.

How just and fair is a system which allows convictions to be entered by a lay person with no legal knowledge other than a short briefing course? 

How just and fair are these convictions entered after a summary trial at which the accused is not entitled to legal representation, no rules of evidence applies, the accused and his spouse are compellable witnesses, hearsay is admissible without restriction, the adjudicator knows the protagonists and the circumstances surrounding the offence charged, there is no right of appeal, the accused may be sentenced to 30 days of detention and end up with a criminal record?

Quote of the day

To the extent eradication [of sexual assault] remains the metric by which success is judged and the only bulwark against unceasing reform efforts, then the tumult experienced by the military in 2013 will continue until, as Diodotus lamented, “we discover some fear more potent than the fear of death.”* Worse yet, this unceasing reform effort, which amounts to changing multiple variables without assessing the efficacy of previously implemented solutions, is grossly unscientific. One could argue, quite reasonably, that rhetorical tacking at this point is politically infeasible. However, if military leaders truly believe that sexual assault victims are more likely to receive both the justice they deserve and the care they need under the current commander-led system, then infeasible or not, they should change tack.

* See Thucydides, History of the Peloponnesian War 3:45,,_Thucydites,_History_Of_The_Peloponnesian_War,_EN.pdf, at 161 (footnote added).

Major Matthew Burris, Thinking Slow About Sexual Assault in the Military, 22 Buff. J. Gender, L., & Soc. Pol’y ___ (2014-2015) (forthcoming), at 36-37. (The author is an Air Force judge advocate doing a fellowship at the Department of Justice.)

Wednesday, March 26, 2014

An interesting decision at the Royal Courts of Justice

Lord Justice Treacy
Thanks to Brig. (ret) Anthony Paphiti's excellent website, this blog's attention has been drawn to an interesting decision of the Courts Martial Appeal Court in R. v. S. [2013] EWCA Crim 2579. At issue in this government appeal was whether the Assistant Judge Advocate General (Large, J.) who presided below had erred in holding that the time limit for pursuing certain offenses (battery) in civilian court also applied in a court-martial for civil offences contrary to section 42 of the Armed Forces Act 2006. Held, per Treacy, L.J.,
The prosecution has laid its charges under legislation recently considered by Parliament which did not choose to fetter the bringing of prosecutions by reference to time limits in the way in which it has done in relation to offences committed by civilians. In those circumstances, what is said to be the different treatment of service personnel from civilians is sanctioned by Parliament and cannot be described as an affront to public justice or something which compromises the integrity of the justice system. [Para. 24.]
Also of interest is the fact that the court permitted the appeal to go forward even though the accused (respondent on the appeal), identified only as S, was absent without leave at the time of the hearing. The court observed at the outset:
The respondent has not attended before the court. She is said to have gone absent without leave. Notification of the date of appeal has been sent to her last known address and has not been returned. She is represented at this hearing by counsel. The appeal before us is on a ground which involves a question of law which was raised in the proceedings below on behalf of the respondent. There is no practical contribution that she can make to these proceedings and her counsel is in no way hampered from fully representing her interests. Having regard to R v Charles and Tucker [2001] 2 Cr.App.R 15, we are satisfied that at the very least counsel has implied authority to represent the respondent. Accordingly, there seems to us to be no reason why we should not proceed with this hearing and Mr Surtees-Jones representing the respondent has not made any submission to the contrary. He confirms that the respondent was aware that appeal proceedings were in train. [Para. 3.]

A very long wait for justice

Maj. Gen. (ret)
Peter M. Kariuki
The Court of Appeal of Kenya has set aside the 31-year-old court-martial conviction of Major General Peter M. Kariuki, former commander of the Kenya Air Force. He had been convicted of failing to prevent and suppress a mutiny in connection with a 1982 coup attempt. In addition to restoration of rank, benefits, honors, and decorations, he was awarded Sh37 million in damages. The Court of Appeal decision, which found that he had been denied the right to be tried by an impartial and independent court, is not yet on the court's website, but an earlier ruling of the High Court is available here. The Court of Appeal judges wrote that “[a] conviction arrived at on the back of egregious violations of the magnitude and scale we have found in this appeal is a danger not only to the appellant but to the society itself.” Gen. Kariuki had been sentenced to four years' imprisonment and spent a total of 1,982 days in pretrial detention and post-trial confinement. He began his fight for judicial review of his court-martial conviction in 2006.

"Will discipline survive?"

Lieutenant-Colonel Stephen S. Strickey of the Office of the Judge Advocate General (Canada) has a new contribution to the professional literature: 'Anglo-American' Military Justice Systems and the Wave of Civilianization: Will Discipline Survive?, (2)4 Cambridge J. Int'l & Comp. L. 763 (2013). He counsels (799) that "those entrusted with the superintendence of the military justice systems in [Canada, Australia, the UK, and the U.S.] would be wise to pay heed to the effect of civilianization among their closest allies and to question whether such reform is in the best interests of discipline and fairness to the accused."
"[I]t is proposed that these four countries form an ad hoc Military Justice Committee to keep appraised of developments in their respective countries. While one academic has proposed a similar idea to include civilian judges and academics, this paper proposes a slightly modified recommendation with the Committee limited to uniformed military justice practitioners charged with advising their respective Judge Advocates General (or his/her equivalent) on strategic military justice policy. This would allow military justice experts to gain an in-depth view of reform from the policy-makers themselves and therefore benefit from the context in which the reforms are proposed." (798 (footnotes omitted).)

Tuesday, March 25, 2014

Nixon, dirty tricks, and the My Lai massacre

CBS News's 60 Minutes Overtime has this story about notes from a 1969 White House meeting (left) by Nixon chief of staff H.R. "Bob" Haldeman that were found in the Nixon Presidential Library and suggest an effort to interfere with My Lai massacre courts-martial.

Too many cooks?

A remarkable array of governmental entities is, has been, or could or will be involved in assessments of the U.S. military justice system. Setting aside the House and Senate Armed Services Committees and the investigative practices review mandated by section 1732 of the National Defense Authorization Act for Fiscal Year 2014, we know of the following:

Code Committee on Military Justice (Code Committee), created by Congress (apparently not currently engaged in reform efforts); composed of the judges of the U.S. Court of Appeals for the Armed Forces, the Judge Advocates General, the Staff Judge Advocate to the Commandant of the Marine Corps, and two public members

Military Justice Review Group; Senior Judge Andrew S. Effron of the Court of Appeals for the Armed Forces is the Director; staff of uniformed lawyers

Joint Service Committee on Military Justice (JSC); created by the Secretary of Defense; all-military plus two non-voting civilians; recommends changes to the Manual for Courts-Martial and functions on proposed changes to the Uniform Code of Military Justice

Response Systems to Adult Sexual Assault Crimes Panel (576 Panel); federal advisory committee created by section 576(a)(1) of the National Defense Authorization Act for Fiscal Year 2013; tasking expanded by section 1731(a) of National Defense Authorization Act for Fiscal Year 2014; members appointed by congressional committee leadership and the Secretary of Defense; additional subcommittee members appointed by the Secretary of Defense

Judicial Proceedings Panel; federal advisory committee created by section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013; tasking expanded by section 1731(b) of National Defense Authorization Act for Fiscal Year 2014

Defense Legal Policy Board (DLPB); federal advisory committee, with a subcommittee; members appointed by the Secretary of Defense; inactive since submission of report in May 2013

Defense Advisory Committee on Women in the Service (DACOWITS); decades-old federal advisory committee

U.S. Commission on Civil Rights; independent statutory commission; issued report on sexual assault in the military in 2013

NewsHour segment on the Sinclair case

Here is a link to the PBS NewsHour's March 20, 2014 segment on the general court-martial of Brig. Gen. Jeffrey A. Sinclair. Judy Woodruff interviewed Paul Woolverton of the Fayetteville Observer.

Monday, March 24, 2014

Washington Post editorial board weighs in

The Washington Post has this editorial recommending that Congress revisit the bill offered by Sen. Kerstin Gillibrand (D.-NY) to give independent prosecutors the power to decide who gets tried by court-martial for serious offenses. The recent Sinclair and Tate cases "[b]oth show why trained, independent prosecutors, not commanding officers with competing concerns, should be in charge of deciding which cases come to trial."

Sunday, March 23, 2014

The Uludere Case

A bit late, but here is an article from Good Morning Turkey concerning the nolle prosequi decision by military prosecutors in the Uludere case. Earlier, a civilian court in Diyarbakir had held it lacked jurisdiction and referred the matter to the military prosecutors. A parliamentary commission also looked into the incident and decided that “poor coordination” between the army and intelligence was the main cause of the 34 airstrike-related civilian deaths.

Rule of law and military justice in the Democratic Republic of Congo

The website of the UN Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) has this summary of the situation with respect to improvements in the military justice system.
"There are two main reasons why ROL [Rule of Law] Section is involved in strengthening the capacity of the DRC military justice system, as called for in United Nations Security Council Resolution 1925. 
"First, the military justice system is a vehicle for promoting the rule of law and respect for human rights. It is the main legal tool and accountability mechanism within the FARDC [Armed Forces of DRC] and armed groups for ending the culture of impunity amongst its members. 
"Second, reforming and strengthening the capacity of the military justice system is also an essential tool for post-conflict security sector reform in the DRC. The level of individual and institutional discipline of the FARDC is low. Improving the effectiveness of the DRC military justice system is therefore an essential prerequisite for progress in improving the discipline and operational effectiveness of the FARDC, and consequently its ability to fulfill its constitutionally mandated mission of protecting the DRC and its people, in a manner which is consonant with its obligations under Congolese and international law, including respect for human rights and international humanitarian law."

Quote of the day

From cecilray, who posted this comment on the website of the Rocky Mount Telegram:
"I say, bring back the crime of Adultery in civilian life, and enforce the crime of fornication and cohabitation. It's still a crime in [North Carolina] for two unmarried people to live together or even check into a motel. If you want the laws of the military to be enforced, why not expand that to civilian life?"

240th anniversary of the 1774 Articles of War

George III
March 24, 2014 marks the 240th anniversary of the Rules and Articles for the Better Government of His Majesty's Horse and Foot Guards, and All Other His Majesty's Forces in Great Britain and Ireland, Dominions Beyond the Seas and Foreign Parts, From the 24th Day of March, 1774. For the text, as initialed by George III, see Major General George B. DavisA Treatise on the Military Law of the United States 581-601 (3d ed. rev. 1913). The 1774 Articles were the model for the American Articles of War issued on June 30, 1775 by the Continental Congress. Fast approaching: George III's birthday on June 4.

Saturday, March 22, 2014

Irish court martial diary

Defence Forces Ireland have a web page that indicates when and where courts-martial and related proceedings will be held. If a friendly amendment is in order, why not also indicate who is being tried and, at least in general terms, on what charges?

Mexico meets with UN Human Rights Council

Here is Amnesty International's commentary on human rights issues (including military justice reform) to be taken up when the UN Human Rights Council meets with Mexican officials. For example:
"The reform of the Code of Military Justice is another major issue. Mexico has accepted recommendations to ensure all allegations of human rights violations committed by members of the Armed Forces are investigated, prosecuted and tried in the civilian justice system. 
"This week the Senate is considering a reform potentially excluding human rights violations committed by military against civilians from military courts: However, it will not apply to human rights violations committed by the military against other military personnel. 
"The proposal is a move in the right direction, but it still falls short of full compliance with international human rights standards, despite the government’s claims to the contrary."

The decision in Moriarity could have gone further

The Court Martial Appeal Court of Canada (CMAC) could have gone much further in R. v. Moriarity and Hannah, 2014 CMAC 1, than it did. It should be recalled that the Court found that par. 130(a) of the National Defence Act was not constitutionally overbroad because its application was conditional on the existence of a military nexus, i.e., that the offence charged must be a service connected offence which would tend to affect the general standard of discipline and efficiency of the service and the moral of the troops. S.130 of the Act gives jurisdiction to military tribunals over ordinary criminal law offences and other federal offences (jurisdiction rationae materiae).

The CMAC could have found that s.130 was constitutionally overbroad in unnecessarily transferring to the military and military tribunals the prosecution and punishment of offences punishable by ordinary law before civilian courts.  This transfer is not without consequences for those prosecuted before military tribunals: loss of fundamental rights such as the constitutional right to a trial by a jury, procedural rights such as the benefit of a preliminary inquiry or of a hybrid offence, right to counsel and appeal in summary trials, and sentencing rights such as probation, conditional discharge, right to serve the sentence of imprisonment in the community.

Since the objective is the enforcement of discipline in the profession of arms in order to assure the efficiency of the service and preserve the moral of the troops, the prosecution should be, like it is with other professions such as the legal or the medical profession, for offences of a really disciplinary nature. S.129 of the Act is a good example of a disciplinary offence: conduct  to the prejudice of good order and discipline. As it is with disciplinary proceedings, the prosecution of disciplinary offences would not be pre-empted by an acquittal or a conviction before a civilian criminal court.

It is certainly open to the Supreme Court of Canada to find that the provision is unconstitutional on the basis of overbreadth, that the present means of achieving discipline through s.130 are disproportionate and that the objective can be achieved by less intrusive means.

It is also open to Parliament to repeal s.130 and leave to civilian authorities and courts the prosecution and trial of ordinary criminal offences and federal offences. If it were to do so, it would afford Canadian soldiers a better equality of rights and provide a better respect for fundamental and international rights as many countries all over the world are presently doing (France, Belgium, Germany, The Netherlands, Lithuania, Morocco, Taiwan, Mexico, Chile, Austria, the Czech Republic). These countries have either abolished military tribunals in peacetime or deprived them of their jurisdiction over ordinary criminal law offences and over civilians.

In Mackay v. The Queen, (1980) 2 S.C.R. 370, at p. 380, Chief Justice Bora Laskin and Justice Willard Estey, who were dissenting in the case, wrote:
I am of the opinion that the appellant is also entitled to succeed in this appeal on the second ground taken by him, namely, that he was denied equality before the law, contrary to s. 1(b) of the Canadian Bill of Rights. I cannot conceive that there can be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or is not.
It is important to note that this was written at a time when the fundamentals rights of an accused were not constitutionalised as they are now. There is no doubt that the Canadian military justice is in dire need of a fundamental reform.

Developments in Brazil highlight lack of military justice reform

The announcement yesterday that the governor of Rio de Janeiro state, Sergio Cabral, asked Brazilian President Dilma Rousseff for federal troops to help quell increasing high levels of violence in the city's favelas (shanty-towns) is a worrying development for human rights and justice.  Brazil has embarked on a massive pacification program of Rio in preparation for the upcoming World Cup in June and the 2016 Olympics.  But many have been highly critical of the level of human rights abuses committed by the forces, and Brazilians were shocked last week by video footage of a woman who was dragged through the streets by a police car following a shootout.  Many of the military police units used in these operations are governed by a military justice system, not civilian courts (for a good overview of the different security forces see this summary of a piece by Jorge Zaverucha), and impunity for abuses committed by the police has not surprisingly been high.  The introduction of additional federal troops, some which may be regular army units, will only exacerbate this problem.  Previous efforts at military justice reform in Brazil have been minimal, with a powerful military, with civilian allies, resisting any significant efforts to bring its forces under civilian jurisdiction, and retaining a significant role in internal security within the country.

Thursday, March 20, 2014

Department of Chutzpah: "Washington Welcomes Reform of Morocco’s Military Code of Justice"

As readers of Global Military Justice Reform know, Morocco is instituting major changes in its military justice system, including forbidding the trial of civilians and excluding civilian-type offenses from court-martial jurisdiction. Here's what the U.S. government had to say, according to Morocco World News:
The United States “welcomes” the Moroccan government’s initiative to reform the Military Code of Justice and to exempt civilians from trial by military tribunals, a U.S. State Department official told Maghreb Arab Press (MAP), calling the decision as “an important step forward in strengthening the protection of human rights in Morocco.”
“In the Joint Statement issued on the occasion of the November 22 visit of King Mohammed VI to Washington DC, President Barack Obama welcomed the Sovereign’s commitment to end the practice of military trials of civilians,” the official recalled. 
“We are pleased to see this commitment made concrete in the form of this draft law. We understand it will now move to Parliament for that body’s approval.”  “We urge the Parliament to act quickly to pass the law so that its impact is not delayed,” he said. 
The US official also noted that the United States also welcomes “the growing role of the National Council on Human rights as a credible and proactive defender of human rights, and are encouraged by the Council of Government’s decision to strengthen the CNDH by ensuring that government agencies address complaints directed to it.” 
He said “both of these measures are important steps forward in strengthening the protection of human rights in Morocco and in realizing the promise of the 2011 Constitution.”
Given this exuberant response to the Moroccan reforms, would it be churlish to wonder when the Obama Administration is going to repudiate the use of courts-martial to prosecute civilians serving with or accompanying an armed force in the field in time of declared war or a contingency operation, or reinstitute a service-connection requirement for trials of military personnel for civilian-type offenses? If these are important steps that strengthen the protection of human rights in Morocco, why aren't they equally important for the U.S.? Double standard?

The Sinclair case: "Exhibit A for why military law governing sexual assault prosecutions should be changed to take such cases outside the regular chain of command"

Ruth Marcus
Ruth Marcus, columnist for the Washington Post, has written that the Sinclair case has implications for military justice reform:
Which is precisely why the better course — the more just course, for accuser and accused alike — would be, as [Sen. Kerstin] Gillibrand urges, to take these decisions away from those who have competing worries besides dispensing justice.
Missouri Democrat Claire McCaskill, who has been the leading advocate against the Gillibrand approach, argues that it would result in fewer cases, as prosecutors worry more about win-loss records than protecting victims. 
Perhaps, but this sordid episode demonstrates the countervailing risks of the status quo. Justice, and the commanders burdened with dispensing it, would be better served with these decisions left to professionals.

Wednesday, March 19, 2014

A move towards equality of rights for Canadian soldiers

In January of this year, in R. v. Moriarity & Hannah, 2014 CMAC 1, the Court Martial Appeal Court of Canada (CMAC) rendered a decision which amounts to an important move towards providing a better equality of rights to Canadian soldiers. Pursuant to s. 130 of the National Defence Act (Act), the military assumes jurisdiction to prosecute and try ordinary criminal law offences committed by members of the Canadian Forces and civilians accompanying or working under contract for them.

Persons who are tried by military tribunals in Canada lose their constitutional right to a trial by a jury for serious offences in addition to some procedural and sentencing benefits conferred upon civilians tried before civilian tribunals for the same crimes.

In the Moriarity case, the accused challenged the constitutionality of s.130 on the ground of overbreadth. The CMAC read down the scope of s.130 by requiring the existence of a military nexus for the prosecution and trial to take place before military tribunals. In other words, the offence has to be a “service connected offence”. The Court found as follows:

a)             paragraph 130(1)(a) of the Act is not overbroad and, therefore, does not violate s.7 of the Charter;
b)            however, the scope of par. 130(1)(a) must be read in the context of a military nexus and the object of the Act which is to ensure the discipline, efficiency and morale of the military;
c)             the decision in R.v. Reddick  (1996), 5 CMAR 563, did not abolish the military nexus requirement as the issue in the case related to the division of powers and Parliament’s authority to enact paragraph 130(1)(a);
d)            a military nexus is required to ensure that only those offenses relating to the purposes behind a separate military justice system can be prosecuted under paragraph 130(1)(a) of the Act;
e)            the exception to the guarantee of the constitutional right to a jury trial in 11(f) of the Charter is triggered by the existence of a military nexus with the crime charged;
f)              the scope of paragraph 130(1)(a) is necessarily circumscribed by the existence of a military nexus;
g)             the purpose of paragraph 130(1)(a) can be no broader than the purpose of object of the Code of Service Discipline; and
h)            although the military nexus requirement is satisfied, there may be overriding considerations such as public interest which would or could require or justify a prosecution before a civilian tribunal.

In R. v. Vezina, 2014 CMAC 3, citing the Supreme Court of Canada's decision in Osborne v. Canada (Treasury Board), (1991) 2 S.C.R. 69, the Court applied its decision in Moriarity and ruled that what constitutes a military nexus sufficient to avoid constitutional overbreadth is a matter to be worked out on the facts of specific cases.

Therefore crimes committed in civilian-like circumstances or crimes that have no connection with the military committed by soldiers or other persons subject to the Code of Service Discipline will be tried before civilian courts.

As expected, the Moriarity decision is appealed to the Supreme Court of Canada. It will be interesting to see if the Supreme Court will be prone to have civilians and children tried by military tribunals even when there is a military nexus and members of the Canadian Armed Forces when there is no such nexus.

Military justice reform in Taiwan (pt. 2)

Chen Pi-e (Mother Huang)
The China Post has run the second installment of its follow-up on military justice reform in Taiwan. As the latest report indicates, it hasn't been without controversy.

"[S]ome critics said civilian courts could hand out more lenient sentences to military personnel who are found guilty in comparison with their military counterparts, as was the case with the recent ruling when a Taoyuan court gave relatively light sentences to all suspects accused of responsibility in [Corporal] Hung [Chung-chiu]'s death," but "the tragic death of Hung has given a glimmer of hope for those who wish the Taiwan military to become more transparent."

Above left, Chen Pi-e, who in 1997 founded the Association for the Promotion of Human Rights in the Military. Known as Mother Huang, she became involved in reform efforts after her son, Huang Kuo-chang, a navy conscript, died under mysterious circumstances in 1995.

Tuesday, March 18, 2014

"Morocco embraces military law reforms"

Ahmed Charai
For a thoughtful commentary on Moroccan military justice reforms, consider this article by Ahmed Charai, publisher of the weekly news magazine L'Observateur, chairman and CEO of the MED Radio national broadcast network, and chairman of the daily newspaper Al-Ahdath al-Maghrebiya. M. Charai writes:
Now, even civilians suspected for plotting the violent overthrow of the government, will face civilian trials in ordinary courts--not uniformed military judges in semi-secret facilities. There will be no secret tribunals for suspected terrorists. And, for the first time, soldiers who commit crimes unrelated to their military service--such as theft, rape or murder--will face justice in civilian courts, not military courts.

Monday, March 17, 2014

Sinclair case as "yet another reason to overhaul the existing military justice system"

Tomorrow's New York Times includes this editorial on U.S. military justice reform. "[T]he current system is a relic from the days of King George III." 

Article on the restriction of military jurisdiction

Concern over inappropriate behaviour

Even though the UK has gone through a major re-adjustment, to set up a tri-service independent prosecuting authority to deal with all serious crime, the issue of sexual harassment and bullying remains problematic.  The tragic case of Cpl Anne-Marie Ellement has recently shown how inappropriately dealing with complaints can lead to the most dreadful consequences. 

A document leaked in November 2012 said every one of 400 female soldiers questioned during an Army investigation said they had received "unwanted sexual attention" during their career.[1] In the Services, serious sexual offences listed in Schedule 2 to the Armed Forces Act 2006 (AFA 2006) which are reported to the police are referred by them to the Director of Service Prosecutions.  However, substantive sexual assault may still be dealt with by a CO or disguised and mis-dealt with as drunkenness or prejudicial conduct. This, in turn, causes difficulty in identifying the true scale of the problem.

The independent  Office of the Service Complaints Commissioner (SCC) was set up under the provisions of the AFA 2006 and  is accountable to Parliament. It is tasked to deal with complaints brought by members of the services  in relation to any matter to do with their service in the Armed Forces. The Commissioner  acts as an alternative point of contact for them to raise concerns if, for whatever reason, they do not wish to make a complaint directly to their Commanding Officer (CO). This is separate from formal disciplinary action. Any complaint by a service person must be lodged within 3 months of the time it arose. The SCC monitors how their  complaint is handled and ensures that they are treated properly. She holds the Services to account for fairness, effectiveness and efficiency in their operation of the complaints system. However, at present, the SCC has no legal powers in relation to individual complaints.

In her frank report of 2012,[2] the SCC  found it unacceptable that, for the fifth consecutive year she was still unable to say that the Service complaints system was working efficiently, effectively or fairly.  In August 2012 her recommendation to ministers that there should be an Armed Forces Ombudsman was rejected. Last year, however, her recommendations to the House of Commons Defence Committee[3] - that she should be provided with powers to question the Services on the investigation of specific cases, make recommendations for further action and hold them to account through a Service response guaranteed by ultimate referral to ministers - were accepted.  MPs also found that there were "continuing problems" with other types of harassment, "bullying, improper behaviour and victimisation" in the armed services.  Committee chairman and Conservative MP James Arbuthnot said:  "There are too many reports of service personnel being reluctant to raise genuine complaints and grievances.”[4]

On the 13th March of this year,[5] the Defence Secretary announced that the Service Complaints system will be reformed and the SCC  given new powers as the Service Complaints Ombudsman underpinned by legislation which  will make it possible for a complainant, after one level of appeal, to ask the Ombudsman to review the handling of their complaint if they are not satisfied that it has been dealt with correctly. These changes will ensure that the Services and the chain of command, up to and including the highest levels, are held to account.  However, the Ombudsman’s recommendations will not be legally binding but the Service will need to give good reasons for not following them.

The perception that the Services, in dealing in-house with complaints, do not deal fairly is a difficult one to shake. The perception is that the Services care more about protecting the interests of the Service rather than delivering justice and redress to the complainant.[6] As someone who has advised the Army Board and sat with them during oral hearings and then their deliberations, I can say that I have never found the members to be anything other than scrupulously fair. But, as we saw with the European Court of Human Rights’ assessment of the court martial system, perceptions are everything.

The biggest problem, it is suggested, is to provide a system in which a victim feels confident that his/her complaint will be dealt with properly. That will persuade victims to come forward to complain. One hopes that the new Ombudsman, with statutory powers to act, will assure Service personnel, and the Services themselves, that individuals are being treated properly and will enable corrective action to be taken where necessary. Let us hope also that there will be no more cases like Anne-Marie’s.

N.Y. Daily News editorial on the Sinclair case

The New York Daily News has this to say in "No hope of justice," an editorial about the court-martial of Army Brigadier General Jeffrey A. Sinclair:
[Sen. Claire] McCaskill’s insistence that prosecutors believed Sinclair’s accuser highlights that the military system for handling sexual assault allegations is thoroughly discredited. Its prosecutors cannot be trusted to proceed on behalf of accusers based solely on the facts and the law — or to move against the accused on the same basis.
Placing authority in independent prosecutors and outside of the chain of command — as Canada, Israel and German[y] have done — would clear the murk that has kept victims from justice and the accused from fair trial.

Sunday, March 16, 2014

Suggestion for the UN Human Rights Committee

The UN Human Rights Committee has released a useful summary of its consideration of the fourth report on United States implementation of the International Covenant on Civil and Political Rights. Perhaps the next reporting cycle could address U.S. compliance with the ICCPR with respect to the administration of military justice.

Saturday, March 15, 2014

Fighting words from Sen. Gillibrand

Sen. Kerstin Gillibrand
Undaunted by her failure to muster the 60 votes needed for cloture on her Military Justice Improvement Act of 2014, Sen. Kerstin Gillibrand (D.-NY) offers this op-ed in the Daily News. Here's the gist:
 "But we will not walk away. We will work harder than ever in the coming year to strengthen our military by taking sexual assaults and other major crimes out of the chain of command — so that no victim is compelled to turn to his or her boss to ask for justice."
And this:
"We need every case to move forward based solely on the evidence and judged solely on the merits, not political pressure or other non-legal considerations."

Someone should do a book review of the Code Committee's FY13 Annual Report

You won't read it here, but someone should actually do one. It's a fascinating snapshot. Take a look. The caseload charts show the anemic master docket of the U.S. Court of Appeals for the Armed Forces, which conducted 36 oral arguments in all of FY13 (at 21). The report of the Judge Advocate General of the Army includes this startling information (at 41):
"In 2013, state courts-martial continued at a modest pace with four states conducting a total of eight general courts-martial (GCM[s]) and three special courts-martial (SPCM[s]). Seven of the eight GCMs and one SPCM resulted in acquittals, were withdrawn after defense motions, or were overturned on appeal."
What's that about? The Army report also refers (at 34) to the fact that the General Officer Legal Orientation Course (GOLO) "is provided individually to General Officers." It would be interesting to see the teaching materials for that course. Oddly, all of the other legal orientation courses "are taught using a sexual assault fact pattern."

The report of the Judge Advocate General of the Navy has a section on the Assistant Judge Advocate General, Chief Judge, Department of the Navy (CJDON). It explains (at 63) that "[t]he CJDON is selected by a competitive flag selection board and serves for three years, with appointment as the Assistant Judge Advocate General of the Navy in the third year of service." But wait a minute. Navy and Marine trial and appellate military judges don't have even the regulation-based, loopholey three-year terms enjoyed by Army and Coast Guard judges. If the CJDON can have a fixed term, why not the rest of the Navy-Marine bench? Or is the "serves for three years" simply a custom without any formal guarantee?

Feel free to comment.

Military justice reform in Taiwan (pt. 1)

The China Post has this follow-up story by Joseph Yeh on military justice reform in Taiwan. Apparently there is more to come on this evolving story. From part 1 of what promises to be a series . . .
"We didn't know it back then, but the 24-year-old conscript named Hung Chung-chiu (洪仲丘) and his tragic death would ultimately become a driving force leading to a series of reforms in the [Republic of China] armed forces and the nation's court martial system."

Quote of the day

The following appears in an op-ed by Sen. Claire McCaskill (D.- MO) in Time Magazine:
"As a former sex crimes prosecutor who’s personally held the hands of victims and fought to put rapists behind bars, I’ve judged each policy idea with one yardstick: Will it lead to better protections for victims and more prosecutions of predators? By that measure, I believe that alternative proposal [New York Democratic Sen. Kerstin Gillibrand's bill to transfer to prosecutors independent of the chain of command the power to decide which cases will go to courts-martial] would have fallen short, and that it in fact would have backfired, resulting in higher rates of retaliation against victims and fewer prosecutions of predators."

Important military justice reforms approved for parliamentary consideration in Morocco

King Mohammed VI and the
Moroccan Council of Ministers
Important military justice reforms are on their way to Parliament in Morocco. The Moroccan Press Agency reports that, at a March 14, 2014 meeting chaired by King Mohammed VI, the Council of Ministers discussed and approved a draft law on military justice.
This project, which was developed in accordance with the royal high orientations, aims to standardize national legislation on military justice with the provisions of the Constitution and international principles this field, put into practice Morocco's constitutional and international commitments in terms of promoting  the rule of law and human rights, and provide the necessary conditions and guarantees of a fair trial in all the courts of the Kingdom. 
This project also introduces major changes to the status of military justice from a Special Court to being one of the specialized judicial institutions that guarantee rights and freedoms, as regards to competence, organization, procedures, and the composition of the Court. 
In this context, the project provides for excluding civilians from the jurisdiction of the military court regardless of the crimes they might have committed. This places Morocco among the most developed democratic countries in this field. 
The bill also excludes the military from the jurisdiction of the military court in the event of common crimes.
The Council of Ministers' action follows a report by the National Human Rights Council that recommended sweeping reforms.
The third report discusses the reform of the military court and presents the Council's proposals regarding the compliance of the legislation in force with the provisions of the new Constitution and the international commitments of the Kingdom. The report recommends in particular that civilians shall not be prosecuted in a military court and that the jurisdiction of the latter is narrowed. Thus, the military court should address, in peacetime, only the cases falling under the category of military discipline, or involving a military person in matters undermining the security of the State or of terrorism. For all other cases, military personnel would be on [an] equal footing with their fellow civil litigants before ordinary courts.
The head of the National Human Rights Council, Driss El Yazami, stated that the proposal fully comports with the 2011 Constitution, international human rights instruments, and the accumulated jurisprudence of the international community on the subject.