Monday, June 30, 2008

Recommendations for Improvements to Military Justice System

Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions released a press statement today, which included recommendations for improvements to the military justice system. The first recommendation is for the creation of a central office or registry that would track the status of ongoing cases and permit the public to have access to the information.

The other recommendations are for fundamental structural changes to the UCMJ, including a recommendation that the decision to prosecute service members be made by a new Director of Military Prosecutions. This recommendation is in response to Professor Alston's conclusion that military commanders are not holding subordinates appropriately accountable for misconduct, particularly misconduct resulting in harm to noncombatants occurring during operations.

The press release is available here.

9 comments:

Anonymous said...

Is he an American?

CAAFlog said...

I previously noted "what appears to be a trend in the international humanitarian law community to view the U.S. military justice system with some scepticism as insufficiently concerned with punishing war crimes -- and, as a corollary matter, insufficiently effective in deterring war crimes." http://caaflog.blogspot.com/2008/05/us-military-justice-systems-reputation.html

The Special Rapporteur's comments would be another case in point. Note the following from his statement:

While the US military justice system has achieved a significant number of convictions, some sentences appear too light for the crime committed, and senior officers have not been held to account in the same way that enlisted men have been. The requirement that a sentence be proportionate to the gravity of the offence is one that I have raised with the Government and will explore further in my report.

One possible response to some of these distortions would be to explore the creation of a position of Director of Military Prosecutions. Rather than permitting commanding officers whether to prosecute their own soldiers, this official would make those decisions. This has been done in recent years in various states, including Australia, Canada, Ireland, New Zealand and the United Kingdom. The goal is to ensure independent decisions as to prosecution and to distance the convening authorities from decisions in which they and the troops serving under them can be considered to have a direct and potentially conflicting interest.

With respect to "command responsibility", it is notable that this is absent from both the Uniform Code of Military Justice (UCMJ) and the War Crimes Act as a basis for criminal liability. This concept has been systematically recognized since the trials which followed the Second World War. It reflects the importance of hierarchy and discipline within the military as well as the essential role of the military commander in preventing and punishing war crimes. Inaction by a commander in response to crimes committed by his men will only result in impunity and more crimes being committed.

While the US military prosecutes commanders under the UCMJ for "dereliction of duty" this does not adequately reflect the responsibility the commander has for the actions of the men under his orders, nor does it result in sentences proportionate to the gravity of the offences committed. The criminal liability of commanders for having failed to take the necessary steps to prevent or punish the crimes committed by their subordinates should therefore be codified in the UCMJ and the War Crimes Act.

Marcus Fulton said...

Anon:
According to his Wikipedia entry, he holds degrees from University of Melbourne (I assume Australia). He seems to have been in the US for some time, though. Here's what his NYU bio says:

Philip Alston is John Norton Pomeroy Professor of Law and Faculty Director of the Center for Human Rights and Global Justice at New York University School of Law. He was appointed UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions in July 2004. For 2005-06 he is Chairperson of the Coordinating Committee for all of the Human Rights Special Procedures of the UN Commission on Human Rights. He has long been active in the field of human rights, as an adviser to groups such as Amnesty International and the International Commission of Jurists, as a founding Board Member of Physicians for Human Rights, and as Chairperson of the Board of the Center for Economic and Social Rights. As a UN official in the early 1980s he worked on the drafting of the UN Convention against Torture, and he has since written extensively on international human rights institutions and procedures, including those dealing with questions of extrajudicial executions.

John O'Connor said...

I haven't seen anything in this guy's bio that makes his opinion any more authoritatrive than the average guy on the street as to whether senior officers have been dealt with properly in the MilJus system or whether sentences have been reasonable.

Typical unelected UN elite.

He probably doesn't even drink Foster's.

Anonymous said...

J'OC: You hit the nail on the head. There is a certain elitist disdain for the US Military Justice system prevalent in academia. Some of the frothers even believe the whole system of having officers detailed as military judges to be unconstitutional.

Norb MacLean III said...

We don't drink Foster's in Australia; it's either Tooheys or VB; or anything but Foster's. If you walk into an Aussie pub and ask for Foster's they will laugh you right out of the pub. And yes, Professor Alston is Australian but has lived in the United States for several years.

Not one single Congressional committee has had any hearings on the UCMJ since the Military Justice Act of 1983 - 25 years ago. Just maybe Professor Alston is correct when he says that America should reform it military justice system. In December 2002, U.S. News & World Report pointed out many problems with the UCMJ in its story “Unequal Justice.” Also the Cox Commission, chaired by former CAAF Chief Judge Walter Cox also suggested reform.

Down in Australia our Parliament does periodic reviews of our military justice system. America has pretty much left the military justice system as it applies to its own troops to the Pentagon with virtually no Congressional oversight.

Anonymous said...

Prosecutors in charge of prosecuting? He is a witch

Anonymous said...

"Elitist" or not I cannot say, but I believe you are wrong to suggest any "disdain" is limited to the U.S. military justice system. It appears rather that this is an international trend affecting the military justice systems of many countries. You may wish to review the presentation by Presentation by Arne Willy Dahl at the SJA/LOS Conference in Garmisch
January 2008 (He is the Norwegian Judge Advocate General and President, International Society of Military Law and the Law of War; the presentation can be viewed at the Society's website).

The trend is towards the increased "civilianization" of military courts by reducing the competence of military courts,
abolishing them altogether, or by limiting or abolishing the role of military officers within the prosecutorial process.

I find it interesting that the widespread public distrust of the military system described in the presentation is not unlike the distrust reportedly held by U.S. supporters of the Haditha accused. These supporters, I imagine, would support many of the proposed reforms, though seemingly motivated by a desire to protect the accused from what they perceive as an injustice, and not by any notion that the military cannot be trusted to prosecute such crimes.

Tony Cossio said...

I recommend this guy get's his big nose out of the UCMJ and take his garbage back to The Hague.

What's next, maybe we should turn over our system to the "World Court". This is elitist/internationalist rhetoric which has no place in this country.

I do agree that there are deferent spanks for different ranks like senior officers (like a certain two star JAG OFF icer) get slaps on the wrist. However, sometimes it goes the other way, like a certain AF Colonel in Texas that got seven years for larceny and indecent acts.

Anyways.....I do agree we should look into a regional/centralized prosecutor authority like in the UK....However, his rational is skewed. Regarding his statements about so-called war crimes the following renders his argument mute:

These cases were prosecuted, and would have been regardless of a "Director of Military Witch Hunts". Thus, his entire argument that soldiers have been getting a "light" sentence (for doing their job) and the antidote is some kind of uber prosecutor is ridiculous: It has no effect on the sentence.

The only effect this would have is either a plus or minus on case loads, or uniformity in what cases get prosecuted. Again, taking control from the SJA/CA and placing it in a centralized authority has no effect on what jurors will hand down as sentences or whether a case gets dismissed.

Either way, the prosecutor does not control the sentence by a jury composed of fellow soldiers that know all to well the political pressure to make sure everything is PC. And, that is the way it should be. I view these jurors and military judges as the last line of defense between the political fat-cats looking to kiss up to the UN and EU. I’m sick of people whining about what the international community will think – boo-hoo, this is the US.