Thursday, October 30, 2014

Decorations watch

Fresh on the heels of the conviction of a Canadian officer for wearing decorations she had not been awarded comes this decision of a panel of the United States Court of Appeals for the Ninth Circuit upholding the conviction of Elven Joe Swisher, a U.S. Marine Corps veteran, for wearing decorations he hadn't earned, at a Marine Corps League event. Click here for Stars and Stripes' story. Ironically, Congress (as the Ninth Circuit mentions in a footnote) has repealed the provision that formerly punished the wearing of unearned decorations -- but too late to help this defendant. The repeal would presumably bear on whether the government will seek rehearing en banc or review by the Supreme Court.

Speaking of medals, the United States Court of Appeals for the Sixth Circuit will hear a case seeking to compel the Army Board for Correction of Military Records to consider a request by the widow of a World War II officer that it award her late husband the Congressional Medal of Honor, according to this Associated Press story. 

The right of women soldiers to care for minor children

The Superior Court of Justice of the Canary Islands, Spain, issued a judgment in favor of a female soldier who sought to be excused from various tasks such as manoeuvres, guard duty, etc. because she had two children under the age of 12.  The judgment was practically identical to one that the same court issued on March 10, 2014, which was the first in Spain to recognize the civil right of members of the military to the full conciliation of their family and work life when they have minors to care for.

This second judgment was notified on October 2, 2014.  The petitioner appealed the order of her Colonel, Chief of the Regiment of Light Infantry, "Tenerife 49," to which she is assigned, who had modified the conditions of her reduced work schedule so that she would have "a minimum operative preparation," or in other words, that she would be fit and ready.

The Colonel, issued his Order on August 1, 2012, for the male and female members of the military under his command, who had received a reduced work schedule, so that they would maintain "50 % of the guard duty and services, as well as a minimum of 10 days participation in SIC/SADAV exercises.

Nevertheless, in both the current and March 2014 judgments, against which there is no further recourse, and in which Judge Juan Ignacio Moreno Luque-Casariego presided, the Superior Court of Justice of the Canary Islands is conclusive:  The Court finds that there is no reasonable and individualized justification to cover "the necessities of service," but rather that the Order is supported by "a mere invocation of a good state of preparation" of military members with a reduced work schedule and exoneration of services, guard duty, manoeuvres and the like.  The Superior Court of Justice considers that the resolution of the Colonel-Chief "incurs in an evident fraud of the law" in so far as it "cares about the minimum operative preparation of the female soldier" and that the Regiment of Light Infantry "does not lose its operative capacity," whereas it violates the 2007 Law for the Effective Equality of Women and Men as well as the 2011 Organic Law on the Rights and Duties of Members of the Armed Forces.

Military trial for retired officer in Egypt

Egypt has just convicted a general who retired in 2010, following a trial in military court. According to this report in Middle East Online:
Tharwat Guda, a former officer in general intelligence, was jailed for a year Wednesday in a military trial sparked by a complaint from his former institution that he had disclosed information "damaging to national security."
Unclear is how he could know anything about the matter, as he retired in 2010, the year before long-time president Hosni Mubarak was driven from power and Morsi elected to replace him.
At issue was an interview he gave to private newspaper Al-Watan in September, state news agency MENA reported.
When asked whether the intelligence services had "conspired" against Morsi by feeding him false information, he said: "No. The intelligence services did not conspire against Morsi, it was he who conspired against Egypt.
"We knew he was a traitor even before he became president, so why give him information?"
Are retired officers fair game for military prosecution? 

Military justice bill passes Colombian Senate

The controversial military justice bill has been passed on second reading by the Colombian Senate. El Tiempo reports:
Military courts would not handle crimes by "members of the security forces" that constituted "crimes against humanity, and crimes of genocide, forced disappearances, extrajudicial executions, sexual violence, torture and forced displacement."
This means that, for example, so-called 'false positives' would be tried by the ordinary courts and not by the military.
The bill also includes a paragraph that gives the prosecutor, in coordination with the military courts, a year to review "all cases against members of the security forces" and move "to the military justice those that do not come within the jurisdiction of the ordinary courts." [Rough Google translation]
El Espectador has additional coverage here. Columbia Reports says "[t]he bill still has to be passed by the House of Representatives and be approved in four debates before the end of the congressional term in June of next year."

A surprising ruling in Spain

A Spanish military court has rejected an indictment of five soldiers charged with torturing unidentified detainees in Iraq. A full report, in Spanish, appears in El Pais:
[I]n a surprising interpretation, the court ensures that the scope of protection of the Geneva Conventions, the basis of international humanitarian law, "reaches out to prisoners of war and civilian personnel, but in any case to terrorists." And it suggests the possibility that the victims of abuse were "three suspected terrorists", according to the indictment, apprehended on January 27, 2004 at the detention center Base Spain,  were "allegedly involved in an attack on Mortars Base Tegucigalpa."
The fact that "there is no certainty about the status of those attacked [who were prisoners, civilians or terrorists], reasonable uncertainty about the application [to them] of the Geneva Conventions" and even about "the rules the Spanish Armed Forces should follow in the treatment of detainees led the court to conclude that the judge rushed to issue the indictment, which is withdrawn.
The idea that the Geneva Conventions do not apply to the alleged terrorists is not new. It was the doctrine applied by President George W. Bush to launch the prison camp at Guantanamo (Cuba). The US administration found that detainees in Iraq and Afghanistan were not prisoners but "unlawful enemy combatants" and therefore refused to apply the Geneva Conventions and placed them under the jurisdiction of the ad hoc military commissions. However, the US Supreme in 2006 rejected this interpretation, ruling that military commissions were illegal and that the Geneva Conventions applied in Guantanamo. [Rough Google translation]
There is a chance the case will be pursued in civilian court, although the maximum punishment there would be much lower than in a military court (8 years versus 10-25 years).