Wednesday, March 27, 2024

Sea change or one-off?

On April 11, 2023, under the heading Extensions of Time, Global Military Justice Reform observed:

Ever wonder how often the U.S. Court of Appeals for the Armed Forces grants extensions of the time in which to file the supplement to the petition for grant of review? In the 12 months ending March 31, 2023, the court granted all 159 such requests. Of these, 123 were initial requests, 28 were second requests, and 8 were third requests. None were denied.

Against that backdrop, what to make of this interlocutory order from the court's March 25, 2024 Daily Journal?

No. 24-0106/AF. U.S. v. DeQuayjan D. Jackson. CCA 40310. On consideration of Appellant's second motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted, up to and including April 16, 2024. No further extensions of time will be granted in this case.

Is this evidence of a change in policy at the U.S. Court of Appeals for the Armed Forces or simply a one-off? If the latter, what was the court's reasoning? If the former, why not say so? Comments or clarification welcome (real names only, please.)

Alleged torturer gets pension

The decision of the High Court of Kenya in the case of an officer prosecuted for torturing a prisoner is not yet available, but some of the factual details and legal background can be found in this news report. Excerpt:

Justice Jemimah Keli from Bungoma acknowledged that the rights of the officer, who has participated in multiple peacekeeping missions in Sudan and Somalia, were disregarded to expedite the process of holding the officers involved in the spy's torture accountable, as stated in a letter from Brigadier Mohamed Nur Hassan. The judge also observed that the quick resolution of Mulekano's case deprived him of the opportunity to challenge the evidence against him or present his own defence. Senior Private Edgar Mwore and Senior Private Patrick Murithi were the individuals involved, according to the Judge.

The Officer Commanding (OC) did not follow instructions and proceeded to document the case as 'heard', as per the Judge's statement. This incident took place on the morning of July 18, 2019. It was revealed in court that the OC heard the case and then passed it on to Colonel Rotich, a higher-ranking official, for further instructions. The Judge noted that it was peculiar that the record presented to Colonel Rotich in the afternoon, when Mulekano was remanded for a decision rather than a trial, had been modified to indicate that Mulekano had stated he did not wish to call witnesses.

The Judge concluded that this was an attempt by Colonel Rotich to rectify the mistake of not providing witnesses during the hearing before the OC. As a result of this breach, the court ruled that Mulekano should receive compensation of Sh 5 million for his wrongful dismissal and violation of his right to a fair trial. Additionally, the court ordered that the discharged soldier, who still had six years remaining until retirement, should receive his terminal benefits, which the Force had initially decided to deny him. The Judge emphasized that Mulekano had served for 29 years, only to face an unfair hearing in his old age.

Monday, March 25, 2024

They're back

Yes, the Supreme Court of Pakistan is back, again dealing with the hot mess of Intra-Court Appeals in the case concerning the military trials of civilians. Dawn has this detailed report. Everything seems up for grabs. For example:

At the outset of the hearing, Justice Khawaja’s counsel objected to the size of the bench.

“103 suspects are in custody. Their families want to be included in the case proceedings,” Ahmed said, urging the court to allow the suspects’ families to be present for the proceedings.

To this, Justice Khan replied that the courtroom was fully occupied, adding, “There is no objection on [the families] coming to the court; we will look at this matter.”

Justice Khawaja’s counsel further requested the SC to constitute a nine-member larger bench to hear the appeals. Ahmed argued that his client had sought the same in his petition. “It is my request to the court to urge the SC committee to constitute a nine-member bench,” he said.

Thursday, March 21, 2024

Bill C-66 - An Act to Amend the National Defence Act


Today, Canada's Minister of National Defence, Bill Blair, announced the tabling of Bill C-66 - An Act to Amend the National Defence Act.  This legislative initiative has been characterized, with good reason, as an effort to "... strip military of power to investigate sexual offences."

However, the proposed legislation raises several questions.  Perhaps the most important question is whether it will address the core problem regarding the Canadian Forces' (CF) failure to respond effectively to sexual misconduct.

And, as Global Military Justice Reform contributor, Rory Fowler, suggests: perhaps one of the principal shortcomings of Bill C-66 is that legislators have not correctly identified the key problem.

Rory Fowler, "Bill C-66 - Initial Observations" (21 March 2024) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/bill-c-66-initial-observations/>

Wednesday, March 20, 2024

Military justice training: which laws?

A yawning gap is emerging in how military justice is trained globally. While military justice is based on domestic laws that obviously vary from country to country, underlying military justice are tenets of international law that govern conduct in war and basic standards of judicial tribunals. Sources of this law include international humanitarian law, international human rights law, and international criminal law. 

Countries such as the United States that are not members of the Rome Statute Some countries tend to deemphasize instruction in international criminal law. 

On the other hand are countries that have signed the Rome Statute, where training in international criminal law is the central feature of military justice instruction.

Recent military justice training in Nigeria provides a case in point about the centrality of international criminal law. The Nigerian Chief of Army Staff, Lt.-Gen. Taoreed Lagbaja, just presided over a specialized training session of Nigerian Army personnel on the operations of the ICC in Abuja. 

The training was organized by the Army in collaboration with the Nigerian Institute of Advanced Legal Studies. 

This training is not just a theoretical familiarization with the Rome Statute and its tenets. The ICC recently undertook at preliminary examination in Nigeria that concluded in December 2020. Nigeria underwent a process called "positive complementarity" in which it modified its domestic laws and legal procedures, including those related to military justice, to help Nigeria better conform with its Rome Statute obligations.