Giving reasons

Volume 63, No. 2 (2025) of the Military Law and the Law of War Review includes an interesting article by Liron A. Libman and Amichai Cohen titled Why do we enforce the law against IHL violations? Reason-giving in Israeli court-martial judgments. Abstract:

This study investigates the perceived purpose of enforcing International Humanitarian Law (IHL, also known as the Laws of Armed Conflict) by examining the underlying values cited in judicial reasoning. While traditional accounts of IHL’s development emphasize humanitarianism, critical theories point to state self-interest, such as the need to control emerging huge national armies in the second half of the 19th century.

To test how these theories are reflected in practice, we conducted a systematic content analysis of 60 years of Israeli courts martial judgments. We analysed how frequently different values (e.g., humanitarian concerns vs. force control) were invoked across different offence categories and over time.

Our findings reveal a significant distinction: humanitarian values are prominent in rulings on offences against life and physical integrity, whereas concerns for controlling military forces dominate property offence cases like pillage. This may imply that neither military self-interest nor humanitarianism can exclusively explain IHL rules and their enforcement. Furthermore, the values cited changed significantly over time, and explicit references to international law were scarce. These trends suggest judges adapt their reasoning to the prevailing Zeitgeist of judicial culture and populist sentiment. This methodology offers a promising approach for uncovering the hidden interests shaping IHL’s application.

TikTok military justice

A military judge in Somalia has become a TikTok star, as reported in this video. As the video notes, however, Human Rights Watch has questioned the Somalian military courts' practice of trying civilians suspected of terrorism.

Tragic fallout In Israeli alleged detainee abuse case

U.S. Supreme Court Justice Justice Benjamin N. Cardozo once noted that, "[t]he criminal goes free when the constable has blundered." 

In Israel, it seems that much more than a constable's blunder recently led to the dismissal of war crimes charges in the most controversial attempt to hold soldiers accountable for alleged war crimes during the Israel v. Gaza War. To wit, "Israel's military on Thursday said it was dropping charges against five soldiers accused of beating and sexually abusing a Palestinian detainee in an alleged assault partially caught on camera."

Prior to this dismissal, there was extraordinary public pressure (plus that from hardliners within the Netanyahu government and seemingly the prime minister himself) to ignore and thereby condone the disturbing detainee sexual abuse allegedly committed -- and captured on camera -- by five IDF troops on Palestinian prisoners at Sde Teiman prison. 

During this uproar, in response to pressure to ignore Israel's obligations under the law of war to investigate and hold soldiers accountable for war crimes, the top IDF military lawyer (MAG) leaked the video of the abuse (action she later admitted to), leading to her arrest for obstruction of justice (an Orwellian twist, given that it appears she was one of the courageous few actually pursuing justice).

Hence Cardozo's observation that the  "criminal goes free" has seemingly come to pass regarding the recent dismissal of indictments as reported here, further straining the IDF's reputation as law-abiding. This entire saga is one that demands deep attention, as it reveals dynamics that echo in the US as well as other nations, pitting those who excuse criminality by warfighters against those that understand that crimes such as detainee abuse (besides being inherently wrong) are morally corrosive to one's armed forces, and can sabotage long-term peace.

After Senator Kelly's comments on military orders

Eugene R. Fidell, Steven J. Lepper and William D. Baumgartner, Military Law on "Contemptuous Words" Should be Reformed. Just Security, 13 March 2026.

From the article.

Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:

Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” not the other way around!

Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.

On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.

On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten ‘obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers” (emphasis in original).

Academic freedom and U.S. JAG schools

Some reports have surfaced of academic activities at U.S. JAG schools that would raise questions about academic freedom had they occurred in civilian institutions. 

First, I spoke with one officer who was urged to not pursue an academic paper topic at one of the JAG schools because the viewpoint expressed was misaligned with JAG Corps preferences. 

Next, I heard from an expert last year who was invited, then disinvited, from speaking at a JAG school, while a second speaker to the same event was not disinvited to the same event. Both had sterling qualifications. The difference was that the first had spoken out against the lawfulness of boat strikes and Venezuela and Iran invasions. The second had publicly spoken out in favor of those operations. The JAG school gave no reasons for the selective disinvite, but the circumstances indicate that it was based on viewpoints.  

Finally, a few years ago, a civil society organization I am president of, the National Institute of Military Justice, was invited, then disinvited, from an academic event at a service JAG school. Again, no reason was given for the disinvitation except that higher-ups had ordered it, leaving us to conclude that it was based on our viewpoints on certain topics that are not in lockstep with those of JAG leadership. 

Is this a First Amendment issue? Federal courts interpreting the Free Speech Clause ordinarily apply the very high standard of strict scrutiny when the government discriminates based on the content of speech or the viewpoint of the speaker. In the examples above, the circumstantial evidence seems strong that the government was discriminating based on the viewpoints of the speakers. 

However, an exception to the high scrutiny given to content-based restrictions comes from the government speech doctrine. If the government is merely expressing its own views (government speech), then there is no restriction on speech at all, so strict scrutiny is avoided. Courts could find that the government speech doctrine applies to service JAG schools' selections of which speakers are heard and which topics their government students can write about. And because the JAG schools are military schools, courts could also draw from precedents such as Parker v. Levy that are more deferential to speech restrictions in military contexts.

While some viewpoint plasticity can be expected in the JAG schools from adminisration to administration as priorities change, have the JAG schools now gone too far? 

There could be an issue with accrediting bodies. The American Bar Association has standards requiring its member institutions to adhere to standards of academic freedom, with the most pronounced exceptions available only for religious institutions. At least one service JAG school, the Army's in Charlottesville, Virginia, is ABA-accredited. 

Another argument for JAG schools to embrace academic freedom is that it is in the self-interest of JAGs and the commanders who attend JAG courses to be exposed to robust debate over current national security issues of the day, and not just conform instruction to the political preferences of the current administration. When senior lawyers and officials in the George W. Bush administration unlawfully authorized and condoned detainee torture, JAGs were among those who courageously resisted. Had the service JAG schools not been able to openly debate these issues as they were occurring, this principled resistance may have been less likely to surface. 

A policy of academic freedom would mean that on several of the most pressing issues the U.S. military faces today--the use of National Guard forces in U.S. cities, Article 2(4) of the UN Charter and the crime of aggression, the weight and meaning that should be afforded to Office of Legal Counsel opinions--JAG schools could deepen their students' appreciation of the issues by seeing them fully, not just receiving one side's gloss. To limit speakers and paper-writers to only expressing only pro-administration viewpoints may ultimately leave JAGs less prepared to perform their duties.