Sunday, December 4, 2022

Malaysian Federal Court desertion decision

In its recent decision in Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Ke-empat Infantri Malaysia, Civil Appeal No. W-01(F)-5-02/2022(W), the Federal Court of Malaysia overturned the desertion conviction of a military doctor. The text of the judgment is apparently not yet available, but three of the doctor's attorneys have prepared a summary of the case and the issue presented, Tan Sri Dato' Cecil Abraham, Rishwant Singh & Jules Khor WeizhenWhat Is the Meaning of Desertion under Section 54(1)(a) of the Armed Forces Act 1972? (Nov. 30, 2022).

6th Circuit rules on USAF mandatory vaccination appeal

The decision in Doster v. Kendall, Nos. 22-3497/3902 (6th Cir. Nov. 29, 2022) can be found here. From the court's introduction:

Under RFRA [the Religious Freedom Restoration Act], the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues. . . .  We thus may uphold the Plaintiffs’ injunction based on RFRA alone. The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class. It can answer whether these alleged policies violate RFRA and the First Amendment in the same way. A ruling for the class also would permit uniform injunctive relief against the allegedly illegal policies. We affirm.

Saturday, December 3, 2022

High Commissioner for Human Rights speaks out on secret military capital trials in Myanmar

The Offie of the High Commissioner for Human Rights has issued this press release about secret military trials in Myanmar:

UN Human Rights Chief Volker Türk on Friday expressed shock that more than 130 people have now been sentenced to death by military courts behind closed-doors in Myanmar since the military launched a coup last year, following fresh convictions this week.

At least seven university students were sentenced to death by a military court on 30 November. There are reports of as many as four additional death sentences being issued against youth activists yesterday. The UN Human Rights Office is seeking clarification of those sentences.

“The military continues to hold proceedings in secretive courts in violation of basic principles of fair trial and contrary to core judicial guarantees of independence and impartiality,” Türk said, calling for the suspension of all executions and a return to a moratorium on death penalty.

“Military courts have consistently failed to uphold any degree of transparency contrary to the most basic due process or fair trial guarantees.”

In July, the military carried out four executions, the first in approximately 30 years. A former lawmaker, a democracy activist, and two others were executed despite calls from the Association of South-East Asian Nations (ASEAN) and the international community to desist.

Close to 1,700 detainees of the nearly 16,500 who have been arrested for opposing the military’s coup have been tried and convicted in secret by ad hoc tribunals, sometimes lasting just minutes. None have been acquitted, and often they have not had access to lawyers or their families.

The latest convictions would bring the total number of individuals sentenced to capital punishment to 139 individuals since 1 February 2021.

The actions of the military are not in keeping with the ASEAN 5-point consensus that the South-East Asia nations have just re-committed to uphold at the ASEAN summit in November, Türk said.

“By resorting to use death sentences as a political tool to crush opposition, the military confirms its disdain for the efforts by ASEAN and the international community at large to end violence and create the conditions for a political dialogue to lead Myanmar out of a human rights crisis created by the military,” the UN Human Rights Chief added.

William T. Generous, Jr., author of Swords & Scales, has died

William T. Generous, Jr., a U.S. Navy veteran and author of a notable 1973 book about military justice (Swords & Scales: The Development of the Uniform Code of Military Justice) died on October 25, 2022. Dr. Generous's obituary can be found here.

Tuesday, November 29, 2022

Intriguing case in Canadian military history

Recently, the Globe and Mail ran an interesting Op-Ed piece by Canadian military historian , Dr. Nathan Greenfield, Ph.D.  Dr. Greenfield has written previously about prisoners of war (PW), from various countries, during the Second World War.  His recent Op-Ed was presented to publicize his latest book:  Hanged in Medicine Hat: Murders in a Nazi Prisoner-of-War Camp, and the Disturbing True Story of Canada’s Last Mass Execution (Toronto: Sutherland House, 9 November 2022).

An historian and journalist, Dr. Greenfield offers an intriguing tale that, for some readers, may call to mind the 1990 made-for-TV movie starring the late Walter Matthau: "The Incident".  And Dr. Greenfield's book offers a much more complex tale that is both true and presents challenging ethical and legal dilemmas.

While I am inclined to dispute the definitive manner in which Dr. Greenfield asserts that the trial of Nazi PWs, charged with murdering a couple of their fellow PWs, was a miscarriage of justice, his Op-Ed (and, presumably, book) raise interesting questions about the application of military law, in Canada, during the Second World War.  His conclusion that the PWs should have been tried by court martial does not necessarily result in a miscarriage of justice.  While the Crown in Canada could have relied upon military law to try the accused, even then, the jurisdiction of civil courts of criminal jurisdiction was concurrent. 

One might be inclined to compare the cases to the trial of Kurt Meyer for war crimes.  Meyer was tried before a court martial, an appropriate tribunal when an enemy combatant is held by a belligerent nation, for the murders of Canadian soldiers at the Abbaye d'Ardenne (Ardenne Abbey).  However, Meyer was tried for war crimes committed, in Europe, before he was captured.

I would also suggest that the 'patriotic motive' advanced by lawyers for the accused was of dubious merit, in 1940s Canada or presently.  The circumstances giving rise to the actions of the accused may have been worthy of consideration as mitigating factors.

Notwithstanding whether one might disagree with some of Dr. Greenfield's conclusions regarding the justness of the civil trial, he offers a well-researched and intriguing examination of a provocative tale in Canadian military history.