December 2024 Military Justice Review Panel report

The Military Justice Review Panel's Comprehensive Review and Assessment of the Uniform Code of Military Justice (Dec. 2025) is available here. The Panel writes at pp. 1-2:

The swift pace and broad scope of changes to military law since 2016 have left the Department of Defense (DoD) and Military Departments struggling to promulgate Service regulations, train counsel, and track compliance with new rules and authorities. Moreover, insufficient data collection, management, and analysis have prevented a full understanding of the impact of recent changes. Aware of these challenges, this Comprehensive Review identifies discrete issues for improvement, highlights areas requiring additional study, and makes recommendations to ensure that the Services operate a just, efficient system of military justice that strengthens national security while promoting good order and discipline. The MJRP found that recent reforms intended to increase trust and transparency have, in some cases, instead done the opposite. The extent of change and the complexity of the new systems that govern the investigation, prosecution, and adjudication of reports of sexual assault, sexual harassment, domestic violence, and other “covered” offenses have made coordination and analysis more difficult for commanders and judge advocates alike. This Report seeks to strike a balance between allowing the new system to fulfill its promise and the imperative to promote and sustain discipline, efficiency, and justice in the U.S. Armed Forces.

The Panel's Findings and Recommendations can be found on pp. 2-7.

Steve Vladeck on the "short-martial"

Global Military Justice Reform contributor Prof. Steve Vladeck's One First substack is must reading about the Supreme Court of the Uniuted States. Today's installment, No. 114, History, Tradition, and the "Short-Martial," is one of his best. Excerpt:

I wanted to use today’s “Long Read” to go into a bit more detail about a cert. petition that my co-counsel and I filed on Friday—which asks the justices to take up a constitutional challenge to the military’s novel use, starting in 2019, of mandatory bench trials for an array of serious offenses. The petition presents (what we think is) an interesting test case for the justices’ recent commitment to “history and tradition” in constitutional analysis. Here, the “history and tradition” of military justice unambiguously support a right to be tried by a multi-member panel of fellow servicemembers dating all the way back to (indeed, before) the Founding. And, as noted below, whether there are any circumstances in which Congress should be allowed to depart downward from what had historically been the court-martial’s irreducible procedural minimum, our view is that the Court ought to take up the case, captioned Wheeler v. United States, because the only justification Congress mustered for departing from that history and tradition here was “efficiency.”

Pushback in Pakistan

While everyone is waiting for the decision in the Military Courts Case, there is serious pushback against the verdicts of the military courts. Dawn has details here. Excerpt:

In a statement posted on PTI founder Imran Khan’s account of ‘X’, the former prime minister urged the international bodies to take notice of the “miscarriage of justice committed in the name of military trials”.

“Punishing innocent citizens by acting as judge, jury, and executioner through a military trial, after staging May 9 false flag operation themselves, is a blatant violation of human rights,” Dawn.com reported the PTI founder as saying. It may be noted the incarcerated ex-premier does not personally have access to his account.

Former National Assembly speaker Asad Qaiser, in a statement, highlighted that the trials conducted by military courts failed to meet the requirements of natural justice. “The decisions of military courts are a clear breach of fundamental human rights,” he said. “Justice has not been served in these trials, and we will challenge these decisions on every forum available,” he vowed.

“The Supreme Court’s decision has deeply disheartened us. It is unfortunate to see citizens being stripped of their basic constitutional rights,” he said in reference to a recent decision of the constitutional bench that led to the pronouncement of these convictions. The PTI leader warned that such actions would only deepen the sense of despair and disenfranchisement among people. “When judicial institutions are compromised, public confidence erodes, and a wave of hopelessness spreads across the country,” he stated.

Criticising the state of the judicial system, Asad Qaiser lamented, “At this moment, our judicial system stands paralysed, which is a tragedy for the country.”

Uganda's military courts

Muhammad Kakembo has written this column for The Observer about the long-running dispute in Uganda over the constitutionality of trying civilians in courts-martial. Excerpt:

In a landmark ruling last week, five Supreme court judges unanimously held that military courts were inadvertently established as disciplinary mechanisms for active UPDF members.

This pronouncement arose during the hearing of an unrelated case involving Lt Ambrose Ogwang, a UPDF officer convicted of murder by the Court Martial and sentenced to death. Ogwang’s conviction was overturned by the Court of Appeal, but the government appealed to the Supreme court.

The director of Public Prosecutions objected to the Court of Appeal’s jurisdiction over military court rulings, and the Supreme court upheld this objection. Justice Lillian Tibatemwa-Ekirikubinza, leading the panel of judges, provided clarity on the jurisdiction and role of military courts.

She stated, “The UPDF courts were better placed to address discipline issues within the rank and file of the armed soldiers… It appears to have been contemplated that the UPDF courts should hold soldiers accountable through a parallel judicial framework, distinct from the courts of judicature.”

Her statement, supported by fellow judges Mike Chibita, Catherine Bamugemereire, Christopher Izama Madrama, and Stephen Musota, underscored the intention of the legislature to confine military courts to UPDF-related cases.

The Ogwang decision is not yet online, and it is unclear from the article whether the quoted remarks were simply comments from the bench during oral argument or something in a written decision. The court has under advisement another case that squarely raises the constitutional issue.

Comparative law and military justice

From yesterday's decision in O'Brien v. Minister of Defence & Military Veterans, CCT 14/23 [2024] ZACC 30 (20 December 2024) (footnotes omitted):

[84] In the United States, the Supreme Court in Weiss upheld the renewable appointment of military judges due to historical peculiarities of the constitutional text and context.  Article 1, Section 8, Clause 14 of the US Constitution grants to Congress the power to “make rules for the Government and Regulation of the land and naval Forces.”  Exercising this authority, Congress enacted the Uniform Code of Military Justice (Uniform Code).  In Weiss, the US Supreme Court reasoned that because of these wide constitutional powers, judicial deference is “at its apogee when reviewing congressional decision making in this area” and that only “extraordinarily weighty” considerations would overcome the balance struck by Congress, which, in enacting the Uniform Code, had not specified fixed terms.  It would be fallacious to apply this sort of reasoning to the South African context.  Here, we have strong constitutionally entrenched guarantees of judicial independence for all courts, without exception.  The United States is therefore an improper comparator.

One wonders whether "fallacious" is the right term. Would "unpersuasive" have been better? 

American military trial and appellate judges have renewable three-year terms of office, with escape valves. Federal magistrate judges have eight-year renewable terms.

Does the two-year cooling-off period the Constitutional Court imposed make sense? Presumably, the South African Parliament will act promptly to frame remedial legislation in light of the court's decision.

Comments are most welcome concerning O'Brien and its implications. Real names only, please.