Sunday, November 28, 2021

Taiwan: Calls for a Code of Discipline

Taipei Times reports in this article that due to an incident where officers administered inappropriate punishments to a conscript, the Ministry of Defense is called to develop a standardized code of discipline.

Earlier this month the recruit, who was caught napping during physical training, had his shirt removed and icepacks were placed under his armpits and on his crotch. Nine officers, from the sergeant who imposed the punishment up to the battalion commander, are currently under investigation by the military police.

In response, politicians and researchers have called the Ministry of Defense to create a unified code of service discipline, notably to prevent such incidents from happening. It is believed that by providing codified guidelines, it would reduce the risk of having an officer or a non-commissioned officer imposing a disproportionate, degrading or unusual punishment.

Amongst the experts quoted by the Taipei Times is National Chengchi University international affairs professor Chen Wen-chia, who notably said that:

“Complete trust and flawless teamwork must exist for a military organization to function. […] Knowing how to strike a balance between discipline and trust is the test of good leadership.”

We could add to Prof. Wen-chia’s wise words that this balance is particularly essential to maintain in the armed forces of a democratic state, where the general public’s trust in military institutions is itself a strategic asset. This balance is all the more difficult to maintain when the state faces the constant risk of being drawn into a major armed conflict threatening its existence. As conscripts have not voluntarily joined the armed forces, would eventually go back to civilian life, and would eventually – negatively or positively - influence the general public’s support towards military institutions, this balance is even more challenging to maintain.

Another researcher, retired army major general Richard Hu, told the Taipei Times that “creating a separate military justice system is not necessary for maintaining discipline”. In support of his argument, he referred to the absence of military courts in Japan’s Self-Defense Forces and the fact that in France, military courts are convened only in exceptional circumstances.

MGen (ret’d) Hu indirectly evokes something often misunderstood by most observers: military justice does not equate to military discipline. The former is one of the tools to restore the latter, a broader concept. Maintaining discipline is the very essence of military organization, notably to ensure efficiency and morale, but it is also an obligation for commanders to prevent and, where necessary, punish violations of international humanitarian law.[1]

By the way, discipline is maintained in many ways. Yes, by imposing (or threatening) sanctions that dissuade offenders from reoffending and discourage others from doing the same. But what a military organization really wants is self-discipline: the kind that comes naturally from within, after individual and collective training, following the example set by leaders, and reacting to collective positive reinforcement from peers. So even when military authority or superiors are absent, the individual soldier would nevertheless, by a mixture of habit and reasoned will, intrinsically act in a proper military and professional way because it is the ‘right thing to do’.

If MGen (ret’d) Hu’s quote means that there is no obligation to have military courts to maintain discipline, he is right (although many would argue that simply transferring criminal jurisdiction from military to civilian courts is not a ‘silver bullet’ to avoid impunity as it seems to be). Yet, as commanders are required to exercise and instill “rigorous supervision of the armed forces and strict internal discipline […] required to ensure that military personnel obey orders when in danger and do not abuse their power”[2] a system is needed. It does not have to be a court or a judicial system. Nevertheless this system, whether administrative, disciplinary or penal summary proceedings, must be fair, meeting minimum standards. Among those are the requirements of legality, predictability and proportionality of punishments. Consider the following from the 2019 Yale Draft Principles for Military Summary Proceedings:

Principle 4

The State shall define by law which offences are subject to summary proceedings, the applicable penalties, and periods of limitation.

Principle 5

A commander may not impose any punishment that is cruel, unusual, inhuman, degrading, or disproportionate. Periods of detention should be of relatively limited duration, reflecting the fact that summary proceedings are designed for the adjudication of minor offences.

In summary, to prevent sanctions and punishments from being left entirely to the ‘whims and fancies’ of frontline officers, there’s a need for a military justice system. Not necessarily a court system, but still a fair one. Otherwise, in seeking to strike the right “balance between discipline and trust” as Prof. Wen-chia puts it, the latter will be harmed and ultimately, the former would be more difficult to maintain through soldiers’ inherent positive motivation.

The opinions expressed are those of the author alone.

Saturday, November 27, 2021

In the House of Lords

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General [Edward] Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”

This amendment is designed to complete the journey towards justice.

Lord Thomas of Gresford, in the House of Lords debate on the Armed Forces Bill, Nov. 23, 2021, available here.

Friday, November 26, 2021

Survey of National Guard scandals

USA Today's Dennis Wagner reports here on scandals that have roiled the National Guard in numerous states in recent times. "Throughout the National Guard system, which consists of 54 independent state and territorial militias, soldiers and airmen have complained for decades about abuses that suggest a failure of culture and oversight."

Thursday, November 25, 2021

Prime Minister Justin Trudeau appoints General Wayne Eyre as Chief of the Defence Staff

 Ottawa, November 25, 2021

General Wayne Eyre is appointed as Chief of the Defence Staff by the Prime Minister on November 25, 2021. Prior to his appointment, General Eyre was the Commander of the Canadian Army

General Eyre attended the Royal Roads Military College  in Victoria, British Columbia, and the Royal Military College of Canada (RMCC), in Kingston, Ontario. Upon commissioning in 1988, he joined 2nd Battalion, Princess Patricia’s Canadian Light Infantry (PPCLI), and has spent the majority of his career in command or deputy command positions, including commanding 3rd Battalion PPCLI, 2 Canadian Mechanized Brigade Group, 3rd Canadian Division and Joint Task Force West, Deputy Commanding General – Operations for XVIII (U.S.) Airborne Corps, Deputy Commander Military Personnel Command, Deputy Commander United Nations Command in Korea, and for a very short time, Commander of Military Personnel Command. He became the Commander of the Canadian Army on August 20, 2019, and was promoted to the rank of General on August 13, 2021.

Wednesday, November 24, 2021

Major Ian Fishback, rest in peace

Two articles in The New York Times about the sad, untimely death of former Army Major Ian Fishback are most highly recommended, here and here. A most tragic case -- and one that should be pondered.