Monday, August 30, 2010

Call for Papers: 2011 Lieber Society Military Prize

The Lieber Society, an Interest Group of the American Society of International Law, is accepting submissions for its annual prize that recognizes papers that significantly enhance the understanding and implementation of the law of war. The prize is given for exceptional writing in English by an active duty or retired member of the regular or reserve armed forces, regardless of nationality. The winner will receive a certificate, $500.00, and a one-year membership to the American Society of International Law (ASIL). More information can be found here.

Wednesday, August 25, 2010

ISMLLW Conference in Stockholm

The International Society for Military Law and the Law of War is co-hosting an event September 16-17, 2010 in Stockholm. The conference is called "The Certain Conventional Weapons Convention at 30 – Evolution, Contemporary Relevance, Context, and Challenges Ahead" and includes some of the world's foremost experts on international humanitarian law. More can be read here.

Tuesday, August 24, 2010

Scheffer decision cited by Indian Supreme Court

In Selvi v. State of Karnataka (May 5, 2010), the Supreme Court of India (left) dealt with lie detector, narcoanalysis and brain-mapping evidence. Exhaustively surveying the pertinent authorities, the court referred to United States v. Scheffer and Mil. R. Evid. 707. Held, the impugned techniques violate both the right against self-incrimination and substantive due process. reports:

Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans, has released a briefing memothat blasts the biased design and derogatory and insulting content of the recent Pentagon survey of military spouses about the impending repeal of the "Don't Ask, Don't Tell" law.

The survey, which went out on Friday to 150,000 heterosexual military spouses, contained fewer methodological biases than the previous Pentagon survey, although the spouse survey was more inherently derogatory towards gay and lesbian Americans than the previous survey.

Still no date for resumption of Khadr Commission

All Headline News reports:
Although no date has been set for the resumption of the trial of Omar Khadr, his military lawyer is ready to resume his legal duties. Lt. Col. Jon Jackson, who was appointed by Pentagon to represent the Canadian youth, has left the hospital and is fit to legally represent Khadr.

Friday, August 20, 2010

Dutch Sbrenica

JURIST reports that:
The Dutch National Prosecution Office [official website, in Dutch] announced Friday that it will open an investigation [press release, in Dutch] into whether Dutch peacekeeping soldiers should face criminal charges for their actions during the 1995 Srebrenica massacre [JURIST news archive] in Bosnia.

DoD Releases Final Report on Ft. Hood Shooting

The Department of Defense has completed its review of the lessons learned in the aftermath of last November's mass shooting at Ft. Hood. The report can be found here.

Tuesday, August 17, 2010

Parliamentary Ruckus Over Sri Lanka Court-Martial

Prof. G.L. Peiris, Sri Lankan External Affairs Minister (left), and Opposition Leader Ranil Wickremesinghe have clashed in Parliament over the recent court-martial of retired Chief of Defence Staff Gen. Sarath Fonseka, who is himself a Member of Parliament. One news account said that "pandemonium reigned" in Parliament.

Sunday, August 15, 2010

Retired Sri Lankan Chief of Defence Staff to Appeal Court-Martial Conviction

Retired General Sarath Fonseka (left), former Chief of Defence Staff of Sri Lanka, has been convicted by the first of two courts-martial before which he has been charged. He plans to appeal the conviction.

Saturday, August 14, 2010

Establishment of Military Court of Australia

On May 24, 2010, Australian Attorney-General Robert McClelland and Minister for Defence Senator John Faulkner jointly announced the Government's decision to establish a new federal court, the Military Court of Australia, under Ch III of the Australian Constitution. The proposal follows the High Court's 2009 decision in Lane v. Morrison.

Friday, August 13, 2010


The Military Advocate General's Corps of the Israel Defence Force has an informative website. Worth a visit. (left, Maj Gen Avichai Mandelblit, Military Advocate General)

Thursday, August 12, 2010

La guerre est finie?

Major changes may be afoot in French military justice if a bill before the French Senate (à gauche) is enacted.

Customary International Humanitarian Law Database

The ICRC has created an excellent and user-friendly database on Customary International Humanitarian Law here. "This database is the online version of the Study on customary international humanitarian law, conducted by the International Committee of the Red Cross (ICRC) and published by Cambridge University Press in 2005." Of particular interest is the National Implementation Database.

al Qosi update from GTMO and sentence announced

From NIMJ's observer Charlie Fowler, reporting on Wednesday's hearing:

We didn't know what to expect Wednesday, after the confusion of Monday and Tuesday. But the panel announced a sentence of 14 years. The pre-trial (PTA) agreement provides that the length of sentence agreed upon by the parties and the Convening Authority will remain sealed until al Qosi is released to Sudan. According to Captain Iglesias, via the Washington Post on Tuesday, the sentence will be released after review by “military officials,” in a matter of weeks. But the military judge said in court that the deal would remained sealed until al Qosi is released to Sudan.

The military judge started the day by clarifying what had been going on in the 802 conferences yesterday, which was that both counsel and the Convening Authority were trying to resolve issues of the post-conviction detainment. In the Regulation for Trial by Military Commission (2007), the CA is supposed to coordinate with the detaining authority—in this case Joint Task Force-Guantanamo (JTF-GTMO) and USSOUTHCOM—and, as the judge pointed out, good military procedure also requires that there should be coordination between the Convening Authority and the Joint Task Force on any kind of promise of post-conviction retention in Camp 4, the communal living facility in which al Qosi is currently being detained. Specifically, Rule 12.7 says:

a. The convening authority and the accused may agree to include provisions related to the nature of confinement. Prior to reducing any such arrangement to print, the convening authority shall coordinate with the Commander of Joint Task Force-Guantanamo and receive written confirmation that such an arrangement is acceptable and will be honored. Should such an arrangement be agreeable to the Commander, the Commander will return a signed writing to that effect and the convening authority may proceed with the PTA. Any counter-offer or adjustment to the PTA must be concurred with by the Commander.

b. Should, after acceptance and execution of the terms of the PTA, conditions change such that the command may no longer facilitate the agreed-upon provisions, the PTA shall become void and the accused may withdraw his plea and appeal to the highest court which last reviewed his case preceding any review conducted by the United States Supreme Court.

Trial counsel said they read 12.7 (a) and (b) together to mean that they didn't have to coordinate with JTF-GTMO because the PTA contained a "recommendation," not an order, to keep al Qosi in Camp 4 for his confinement.

Surprisingly, the trial counsel and Convening Authority didn't let the JTF know that there was anything about post-conviction confinement in the PTA until on or around 7 July 2010, the date al Qosi pled guilty. But the trial counsel and Convening Authority didn't get an acknowledgment from the JTF and the Deputy Assistant Secretary of Defense for Detainee Affairs (DASD/DA) until 5 Aug 2010, four days before sentencing started. The judge’s description regarding the whole procedure made it seem even more labyrinth; the JTF has to acknowledge that a post-confinement arraignment is in the PTA, even if the JTF doesn't agree with it.

Interestingly, the Sudanese national intelligence service was kind enough to furnish to the American embassy in Khartoum a letter detailing its rehabilitation program for repatriated detainees from GTMO, of which there have already been several. There is a standard procedure for repatriated detainees: depending on the crimes the committed, they are given a psychiatric and physical examination; if they hold extremist ideology, they are held and given moderate religious training, marriage counseling or matchmaking and job training by imams; once they are deemed fit for release they are returned to their families, found jobs and attend moderate mosques; their phone and email are tapped and monitored to make sure they don't contact extremists; they are monitored by informants at their workplaces; and if they are caught slipping back into radicalism, they are detained and sent to retraining.

Probably the most troubling news today was that the JTF has no written policy for post-conviction confinement. Yes, even though Hamza al-Bahlul is currently serving a life sentence in Guantánamo, there is no policy for where he is confined, if he is segregated, if he will spend the rest of his life in solitary confinement. Judge Paul found this "especially troubling" in light of the fact that two commissions were in—as of Wednesday—that will likely result in confinement of two more convicted war criminals. On 8 August 2008, the DASD/DA sent a letter to USSOUTHCOM requiring them to come up with a policy for the detention of detainees post-conviction, but nothing has been done to fulfill that request.

Wednesday, August 11, 2010

He's cooked

AP reports that:
In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by a U.S. Department of Defense official, 50-year-old al-Qaida cook from Sudan, Ibrahim Ahmed Mahmoud al-Qosi,, left, attends his war crimes trial at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba, Wednesday, Aug. 11, 2010. (AP Photo/Janet Hamlin, Pool)
A Guantanamo jury recommended a 14-year sentence Wednesday for an al-Qaida cook, though its decision may be overruled by a plea bargain that will limit the time he spends in prison.

Khadr members selection complete reports that:

In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by a U.S. Department of Defense official, Canadian detainee Omar Khadr attends jury selection at his war crimes trial Wednesday, August 11, 2010 at Guantanamo Bay, Cuba. (Janet Hamlin for CTV)

(In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by a U.S. Department of Defense official, Canadian detainee Omar Khadr attends jury selection at his war crimes trial Wednesday, August 11, 2010 at Guantanamo Bay, Cuba. (Janet Hamlin for CTV))

Four men and three women are charged with deciding Omar Khadr's fate when his long-awaited military commission trial begins in Guantanamo Bay Thursday.

The jury of seven U.S. military officers was chosen Wednesday after eight other potential jurors were dismissed following defence and prosecution objections.

al Qosi Commission Update from GTMO

From NIMJ's observer Charlie Fowler, reporting on Tuesday's schedule:

Not much to report from the al-Qosi courtroom. We thought court would start at 0930, showed
up at 0900, and waited for an hour, until one of the defense counsel was kind enough to pop into the back of the courtroom and tell us to get lunch. We got back after eating, waited an hour and a half, then were told that there wouldn't be anything going on. We heard that the big issue of the day is that the Department of Defense has a problem with a military judge in Guantanamo telling them where they are going to put their convicted terrorists. Part of the plea deal accepted by al-Qosi is that he would be housed in a holding facility equivalent to the communal living of Camp Four. There seems to be an issue of whether DoD will honor that part of the deal. It is suspected that DoD feels like there is an obligation to segregate convicted detainees. They also may not want this to set a precedent for future pre-trial agreements.

We don’t know what to expect Wednesday. I think the confusion and problem surrounding this issue is another example that highlights the difference between courts-martial and federal trials, and what happens when the government tries to create a hybrid of both, with zero precedent. Something as routine as a plea deal becomes a precedent-setting commission-SNAFU.

Tuesday, August 10, 2010

Omar Khadr's statements are in

Judge Parrish ruled yesterday that the statements made by Omar Khadr, that defense argued were tainted and obtained through coercion, will be admissible at trial. Voir dire is set to commence today.

For more updates, please follow Miami Herald Reporter Carol Rosenberg at her twitter account here.

Prof Gary Solis quoted from GTMO

Prof Gary Solis, NIMJ advisor currently in Guantanamo Bay to observe proceedings, was quoted in the Washington Post discussing the pre-trial agreement in the military commission against al-Qosi. You can read the article here.

al-Qosi Military Commission continues

Here’s a summary of yesterday’s sentencing hearing in the military commission for Ibrahim al-Qosi from NIMJ’s observer Charlie Fowler:

There were several interesting developments in the al-Qosi military commission yesterday. Before the hearings got started there was a rumor circulating that the sentence in the pre-trial agreement (PTA) would not be disclosed. Sure enough, one of the first motions in al-Qosi was the military judge granting the government motion to keep Appendix A (which contains the sentence limitation) to the PTA sealed until al-Qosi is released. The defense joined this motion. The military judge determined that keeping the sentence secret was "in the best interest of the Government and Mr. al-Qosi."

The military judge also heard a defense motion to compel government compliance with the portion of the PTA that specifies what type of facility Mr. al-Qosi must be held in after conviction. It was revealed today that al-Qosi was to remain in Camp 4 (communal setting) or the equivalent if the Guantanamo Bay detention facility was closed and the detainees were transferred to the mainland, evidently a possibility at the time the PTA was drafted to carry out whatever sentence is imposed. Evidently, no one in the Department of Defense is willing to ensure that this portion of the PTA is enforced. This portion of the agreement is "the lynchpin" upon which Mr. al-Qosi's cooperation rested, according to the defense team. Lead defense counsel spent about 15 minutes explaining how important the Camp 4 portion was, how al-Qosi met all his obligations under the PTA, and asked that the government honor its part of the deal.

Then came an impassioned statement by lead trial counsel. He stressed that the Joint Task Force-Guantanamo needs to uphold the agreement entered into by the convening authority and defense. The judge's solution was to announce that confinement in any facility on GTMO other than Camp 4 would be considered a violation of the PTA, and would result in the revocation of the plea agreement.

After the motions, voir dire (jury selection) of the panel commenced. It was the judge's intention to get through the voir dire yesterday, but it will continue today.

Saturday, August 7, 2010


New American reports:
The Associated Press noted in an exclusive report on August 6 that the CIA secretly moved four suspected high-level terrorist prisoners to the Guantánamo Bay Detention Camp on September 24, 2003, and then on March 27, 2004 — in anticipation of a Supreme Court ruling giving the detainees access to U.S. courts — moved the prisoners out of U.S. jurisdiction to the CIA’s "black sites," a name given to the spy agency’s secret overseas detention facilities.

Friday, August 6, 2010

Khadr Military Commission set to start

The military commission against Omar Khadr is set to begin. A hearing to determine the admissibility of certain statements made by the accused will begin August 9 and the trial is set to start after a decision in that hearing. NIMJ will be observing the suppression hearing and the trial. Professor Gary Solis, and expert in the law of armed conflict and military law, will be NIMJ's observer for the first half of the proceedings. Please check this blog for up to the date observations from Prof Solis as the commission proceeds.

Wednesday, August 4, 2010

LTC Lakin Initial Court-Martial Session

According to the Army Trial Docket, LTC Lakin (better known as the "birther doc") will face arraignment at 11:00am Friday at Fort Belvoir. It's not clear whether a motion hearing pertaining to discovery of President Obama's "long form" birth certificate will be held in conjunction with the arraignment. Check back later in the week for updates.

Coast Guard Day, Aug. 4, 2010

Happy 220th to all Coasties!