Adultery and all that

Maj. (Ret) Navdeep Singh

Global Military Justice Reform contributor Maj. (Ret) Navdeep Singh has written this op-ed for The Quint on the military justice background and implications of the Supreme Court of India's recent decision decriminalizing adultery. Excerpt:

The military cannot be immune to change, the Supreme Court has not offered a moral judgement or condonation or deprecation of adultery but has merely stated that while it may have civil connotations, it cannot be a criminal offence.

In my view, the same must also apply to the situation in the military, if the matter is consensual and between two individuals without implication on service life. The exception to this proposition, however, is that in case it impinges upon discipline or other aspects intertwined with life in the military, then it shall always remain open to action under Sections 45 or 63 [of the Army Act] whenever it impacts such service parameters.

The military community will self-adjust to changing times, and new interpretations of the law, as always.

Ministry backs officers in Indian "fake encounters" litigation

The government has weighed in on the side of active and retired military who have sought to block investigation of past "fake counter" cases. The Times of India reports on the proceedings here. The Attorney General insisted that the Supreme Court of India's proceedings have harmed morale. That may be. Is it relevant? Is it a basis for abandoning the investigations the court has ordered?

Ghana reviewing best practices, constitutional requirements

Last month the Ghana Armed Forces established a board to consider the need for changes in the country's military justice system needed to reflect contemporary best practices and the requirements of the 1992 Constitution. Meanwhile, a new 570-page book has been published by Lt. Col. Binditi Chitor titled Contemporary Approach to Military Law in Ghana.

Resisting provocation and retaining moral edge by the military -- an op-ed today in The Tribune (India)

General Hasnain and I discuss the requirement of strict adherence to human rights by the military even while operating under stressful conditions. The co-authored piece has appeared in The Tribune today.

Indian Army -- Resisting provocation and retaining moral edge

Circulation of pictures of a terrorist’s corpse is unmilitary

Lt Gen Syed Ata Hasnain

Maj Navdeep Singh

Both authors of this piece were targets of messages laced with scorn on twitter recently when we steadfastly opposed the circulation of an image of a civilian clicking a picture with the corpse of a terrorist in the backdrop, and also of what seemed like the dragging of dead bodies of the same terrorist just after an operation.

To put the record straight, the first picture was utterly detestable and the second was perhaps articulated out of context after culmination of a military operation subsequent to which the dead body of the terrorist had been tied by a rope and flipped to ensure the disposal of explosive which could put troops to risk. On opposition to the circulation of the pictures, we were, inter alia, informed by self-declared experts that the dragging of the body as seen in the picture was a Standard Operating Procedure (SOP) in counter-insurgency operations and also that terrorists deserved no mercy. Of course the commentators forgot in the bargain, that firstly, the picture was not that of the actual SOP being carried out since the same is carried out by a rope at least 30 feet long, and secondly, a dead body ceases to be that of an enemy or a terrorist and is never mistreated, unless we are competing in barbarism with a neighbour of ours. Needless to state, in this case too, the body may not have been mistreated but the presence of civilians with cameras in such a zone is worrisome.

So why do we feel such pictures should not be circulated? If we dig deep into the issue, such actions can have deleterious repercussions. To begin with, such pictures are bound to be used by inimical elements to spread misinformation about our forces thereby depicting them in less than favourable light. Let us not forget that these are times of psychological-operations where messing with the minds of people and injecting hatred is a more potent tool than the gun. We just cannot afford to be an enabling device for the enemy in this dastardly environment. Such pictures, especially the one with a civilian with a corpse, can also lead to a vicious tit-for-tat cycle of violence with brutal photographs and videos being circulated which has been seen elsewhere in the world and is best avoided.

On the dignity of bodies of terrorists, many have responded with the oft repeated refrain that “terrorists have no Human Rights”. This is a dangerous proposition. “Human Rights” is not a dirty word. It regulates our existence and acts as a shield towards misuse of power by any person in authority. What we have always clamoured for, however, is a balance and equal respect for the rights of the men and women in uniform. Had there been an absence of rule of law, the logic professed for terrorists could well be extended to any criminal or perceived criminal thereby justifying mob mentality. In fact, the Indian Army was one of the first armies to have incorporated Human Rights training and monitoring and it would also be in the fitness of things if the military, institutionally rising above any popular sentiment, corrects the perception on social media when it threatens our basic ethos.

The Indian Army has always guarded against desecration of bodies. An apt example is of Kargil wherein, in the middle of the battle, the bodies of the enemy were not only handed over to Pakistan but also saluted by our troops. True, those were bodies of enemy combatants and a direct parallel with terrorists may not be apposite, however let us not forget that this happened despite the most unsoldierly conduct on the body of Late Captain Saurabh Kalia. Some provided examples to us as to how other nations dealt with such situations. But it may come as a surprise to many that most democracies are very sensitive to this subject. Osama Bin Laden’s body was buried-at-sea by the Americans and mistreatment of bodies is akin to a war crime for them. Contrary to popular perception, Israel absolutely forbids disrespect to dead bodies and professes very strict rules of engagement, including prohibition of usage of human shields and maltreatment of bodies which were banned by its Apex Court and dutifully followed by the Israel Defence Forces. In Nigeria, Sierra Leone and South Africa, maltreatment of bodies is a war crime. Even many other African States which have faced gruesome ethnic violence now provide for protection of dead bodies.

The battle zone is not mathematical. There would be a variety of situations which would require split-second decisions. Therefore imposing a zero-error environment might result in inhibiting the initiative of troops. However, there are aspects where there is no compromise. The true mettle of a soldier only comes to fore under stressful situations where he or she must not stray from military values. While the Indian Army would be ruthless in its operations thwarting terrorism, it would also be the most correct in following the rule of law, the laid down procedures, including respect to the dead. The scrupulous adherence to these ingrained principles is why the Indian Army has retained its reputation. The unnecessary chest-thumping on social media by seemingly bloodthirsty warriors who have not gone beyond video games in real life militates against the ethos of our military and would continue to be treated with the contempt it deserves.

Despite extreme provocations, we cannot be like the other side and that is the reason why the Indian Army retains its moral edge, and continues to prevail.

Lt Gen Syed Ata Hasnain is the former General Officer Commanding of the 15 Corps at Srinagar and former Military Secretary.

Maj Navdeep Singh is an Advocate at the Punjab & Haryana High Court and founding President of the Armed Forces Tribunal Bar Association.

Adultery in India

In another blockbuster ruling, the Supreme Court of India yesterday decriminalized adultery. But what about military prosecutions? Consider this article by Sushant Singh in The Indian Express. Excerpt:

The Supreme Court judgment on adultery is likely to put the armed forces in a quandary because it takes the offence of “stealing the affection of a brother officer’s lady wife” very seriously.

The charge of “violating good order and military discipline” can still be pressed against an officer for adultery under Section 63 of the Army Act, and its equivalent sections in Air Force Act and the Navy Act.

But while that charge can be heard by military courts, it is now likely to be overturned in higher courts after Thursday’s judgment in which the apex court struck down Section 497 of the IPC and ruled that adultery should not be treated as a criminal offence.

W. Dean Pfeiffer, longtime head of the BCNR, dies at 91

Captain W. Dean Pfeiffer, longtime Executive Director of the Board for Correction of Naval Records, has died at age 91. His obituary appears here. He had an amazing 70 years of civilian and uniformed service to the Navy.

Parade, anyone?

Can Irish military personnel demonstrate about terms and conditions of service? That question is now in court. Details here.

Who's on death row?

Blake Stilwell has this report for We Are The Mighty.

Canadian Armed Forces seek a stay of CMAC decision in Beaudry

The Supreme Court of Canada has been asked to stay the decision of the Court Martial Appeal Court in the Beaudry case, thereby permitting pending cases to proceed, according to this article by Cristin Schmitz in The Lawyer's Daily. Excerpt:

[Director of Military Prosecutions Col. Bruce] MacGregor warns that, in the absence of a stay, 40 serious prosecutions currently being handled by military prosecutors (i.e. more than half of the CAF’s average annual caseload at courts martial) will have to be redirected to overburdened civilian courts — thus creating “undesirable delays and jeopardizing the ability to try these cases on their merits” — given the consequent risk of not meeting the speedy trial requirements set down by the Supreme Court in R. v. Jordan 2016 SCC 27. 

The Beaudry ruling hit the military justice system hard last week — immediately disrupting three sexual assault trials for which verdicts had yet to be rendered.
The military states in its affidavit in support of the motion to suspend the declaration of invalidity that of 35 cases for which Criminal Code charges have been laid, but for which the trial has yet to start (and over which the military justice system now no longer has jurisdiction), 21 involve sex-related offences, including sexual assault, sexual exploitation (s. 153 of the Criminal Code); and voyeurism (s. 162(1)) of the Criminal Code. 

(Those prosecutions are of particular importance to the CAF because it has been under sustained fire for not doing enough to deal with sexual harassment and sexual assaults that occur within its ranks. After an internal review, the CAF recently reopened 23 cases of alleged sexual assault after re-examining complaints that were dismissed by military police as unfounded.) 

The other prosecutions in potential jeopardy after Beaudry include offences of criminal harassment, fraud, theft, drug trafficking and assault.

One wonders how many of the 40 cases said to be of concern could be transferred to the civilian courts, where the accused's right to a jury trial could be honored. Permitting those cases to proceed in the military courts would mean they would have to be retried in the event the Supreme Court affirms the judgment in Beaudry. If you were on the Supreme Court would you grant the requested stay? What if some of the 40 affected defendants preferred to continue in military proceedings; can't they waive their right to a trial by jury? And finally, how much of a burden on the civilian courts of Canada would it be to add 40 more?

Worth-the-Read (WTR) military policing in Canada

Jonathan Avey (Osgoode Hall Faculty of Law) has posted Police Independence vs Military Discipline: Democratic Policing in the Canadian Forces (Manitoba Law Journal, Vol. 41, No. 4, 2018) on SSRN. Here is the abstract:

Over the last 25 years, there has been a gradual acceptance within the Canadian Forces that Military Police need to be able to function independently when exercising their duties as police officers. This acceptance has led to organizational and administrative changes to provide such independence to MP members; however, despite these changes, there remains the risk that MP independence may be eroded in the course of criminal or disciplinary investigations. This article presents two recent matters to illustrate that the independence currently afforded to MP investigators is still very much in doubt. The first is the recent decision of the Court Martial Court of Appeal in R v Wellwood, which brought the dichotomy of MP independence and the need to maintain discipline and a rigid obedience to orders from a superior squarely before the court. The second is the recent controversy surrounding the MP investigation into allegations against Lieutenant Colonel Mason Stalker, which ultimately resulted in a stay of proceedings being directed on all charges and Stalker launching a lawsuit against the Department of National Defence and the Canadian Forces.

From CrimProfBlog (a great resource for those in the U. S.)

U is for the U in Uniform

Would someone please tell the Defense Visual Information Distribution Service and the U.S. Army Pacific Public Affairs Office that the U in UCMJ stands for Uniform, not Uniformed?

Sticky wicket in Australia

The pendency of a judicial inquiry into allegations of war crimes by members of Australia's SAS Regiment has started to boil over, as witness this piece by Sydney Morning Herald investigative reporter Nick McKenzie. Excerpt:

In addition to attacking the revelations in Fairfax Media, Roberts-Smith’s backers have also turned on the Brereton Inquiry.

It is an easy target. Only a few top military figures appear to have any sense of its direction and they are not talking. No one in defence who Fairfax Media has spoken to knows what Justice Brereton will find. A senior political staffer told Fairfax Media this week: “We have tried to get a steer from the judge and he told us to bugger off. He said we can see his report when it is finished.”

Witness retaliation claims in Sri Lanka?

The Sunday Observer reports:

Lt. Commander Krishan Welagedara provided damning evidence to CID sleuths in 2012, when he was able to help the agency to establish that the 11 youths abducted by a suspected navy gang were held in detention at Gun Site at the Trincomalee Naval Base. A Navy Intelligence officer, Welagedara was privy to the information because he had been tasked by his commanding officer in 2009 to determine if innocent people were being held at Gun Site on the pretext that they were terror suspects. His evidence not only helps to establish the boys’ last known location, but also tells a horrific story about how they might have met their end. Now he claims he has faced endless persecution within the Navy for telling the CID his story.

One of the issues raised in the article is whether LCDR Welagedara was subject to a court-martial as retaliation. What is of interest is the punishment he received at that court-martial.

On July 12, 2016 the Navy court martial headed by Judge Advocate General (JAG) Shavindra Fernando pronounced Welagedara guilty on both counts and sentenced him to 36 months forfeiture of seniority, and 12 months forfeiture of seniority and 17 days forfeiture of pay and allowances for the two offences respectively.

This punishment, called "loss of numbers" was an available punishment to officers in a U. S. court-martial until 1999. Should that punishment be made available again? There have been a number of reports in the U.S. of allegedly rampant senior officer misconduct in situations where a loss of seniority might be an appropriate punishment. See e.g., Tom Vanden Brooks, Senior military officials sanctioned for more than 500 cases of serious misconduct. USA Today, 24 October 2017; Juana Summers, Pentagon watchdog: Few senior officers found guilty of misconduct. 8 February 2018.

Here's a link to Fidell & Fidell, Loss of Numbers Was a Punishment, U. S. Naval Institute, 127/8/1 Proceedings 182 (2001).

Another interesting part of the piece is whether the punishment runs consecutively or concurrently.  In the U.S. the sentence is a unitary one--one punishment--regardless of the number of charges of which convicted.  There will some change to that in 2019 with military judge sentencing. 

Military Commissions update

From Lawfare:

Last week, the military commission in United States v. Khalid Sheikh Mohammed et al. reconvened for pretrial proceedings, meeting in open session on Sept. 10, 11, and 12. The commission covered Col. Keith Parrella’s replacement of Col. James Pohl as the presiding military judge, began discovery motions, and interviewed witness Lieutenant Doug Newman.

Parrella recapped a Rule for Military Commissions (RMC) 802 conference that he held with counsel in advance of his appearance in court, in which he said that each side could conduct a voir dire and see his fitness report from his time as a Marine Corps Fellow at the Department of Justice (DOJ), but that his ruling should not be interpreted “as the commission’s position as to the appropriateness” of the parties seeking discovery. He also noted that various practices would continue from Pohl’s tenure as military judge: requiring each defendant to be at the commission for the first day of each session; scheduling courtroom breaks around prayer times, if possible; recording RMC 802 conference sessions and allowing requests for those transcripts [1]; and letting the defense attorneys meet with the defendants after afternoon sessions wrap-up each day. After he ran through the proposed schedule for the week, the attorneys briefly clarified other issues.

The post also summarizes what appears to be extensive voir dire of the judge by the parties.

An interesting piece of voir dire was questioning about the judge's death penalty or "capital" case qualifications and experience.  There has been much litigation over the years whether military defense counsel must be "death qualified" based on experience and training in defending courts-martial at which the death penalty could be imposed.  But, and Gene (or "ML") may correct me, I'm not aware of it being an issue about the military judge's qualifications to sit as the judge.
___
[1] The Rule for Courts-Martial 802 is mimicked by the Commissions.  The "conference" is usually off the record, takes place in chambers, not recorded, and merely summarized on the record by the military judge.  Under the Rule, the military judge does not make rulings (although the parties could agree to that).

Sentencing quiz

A general court-martial at Fort Campbell recently convicted a soldier of rape. Without knowing more or peeking at this report, what is your best guess at the confinement portion of the sentence?

1 year
15 months
18 months
2 years
3 years
5 years
10 years
15 years

Fragrant disobedience in Uganda

[Defense attorney Eron Kilza] wondered why they should be tried in a Military court yet they are civilians. Kiiza also denunciated the Court Martial for disobeying the orders of the High court that had ordered for the unconditional release of [Emmanuel] Rwamuchyo and [Augustine] Rutayisire because of their illegal detention. He said this fragrant disobeying of court orders is a recipe for anarchy.

From this article about three Rwandan civilians behind held for military trial in Uganda

Morocco and mandatory military service

Moroccoworldnews reports:

The government announced its decision to propose bringing back 12-month compulsory military service in August.

. . .

Government Spokesperson Mustapha El Khalfi said that the military service bill might come into force at the end of 2019.

He explained that the bill will be debated in a Parliament session this week or next.

. . .

Morocco first introduced 18-month military service on June 9, 1966, in accordance with Royal Decree 137-66. Morocco reduced the length of service to 12 months in 1999. But in 2006, King Mohammed VI abolished mandatory military service.

Welcome, Montenegro!

As of a few minutes ago, Global Military Justice Reform has had its first reader in Montenegro. Welcome aboard!

Montenegro is the 183rd jurisdiction from which we have had readers.

Beaudry decision

The decision in the Beaudry CMAC case can be found here. 

More on the Beaudry CMAC decision

The Lawyer's Daily reports here on the CMAC decision in Beaudry. Excerpt:

For the majority, Justice [Vital O.] Ouellette wrote that “any limit on a right must be related to the maintenance of discipline, morale and efficiency of the armed forces. In the absence of such a connection, there is no reason why a member would not enjoy the same rights as any other Canadian citizen. Indeed, it would be ironic for those who have the ultimate responsibility of protecting freedom, justice and social equality, at the risk of their lives, to not enjoy these same rights.”

The Beaudry decision effectively shrinks the scope of the military justice system by confining it to dealing with military service offences under the Code of Service Discipline (which are mostly comparatively minor, e.g. disobeying an order) because the court held that courts martial in Canada can no longer try any civil offence — including sexual assault and other Criminal Code offences — which attract a maximum of more than five years’ maximum imprisonment.

Ongoing courts martial have been halted in the wake of Beaudry, and pending charges for serious crimes could [be] referred by military prosecutors to civilian criminal courts.

Important ruling in Ottawa

The Court Martial Appeal Court of Canada yesterday handed down its decision in R. v. Beaudry, 2018 CMAC 4, which concerned whether the trial of a service member by court-martial for a civilian offense that would otherwise entail a right to jury trial violates s. 11(f) of the Canadian Charter. The Supreme Court of Canada has held off the briefing schedule in another case pending the decision in Beaudry. The judgment is not yet on the CMAC website but should be imminently. Justice Vital O. Ouellette wrote for the majority; Chief Justice B. Richard Bell dissented.

Should there be Crown immunity for criminal offenses?

His Honour Judge
Jeff Blackett
Judge Advocate General

That question is discussed here, following the entry of a no-case-to-answer ruling in the Brecon Beacons SAS training case. Excerpt:

Bridgend MP Ms [Madeleine] Moon, who is a member of the Defence Select Committee, said the judge had been "absolutely clear" that there had been systemic failures.

"There seems to be an absolute failure to learn lessons in the MoD which is why I'm calling for their crown immunity to be removed because they're not learning lessons," she said.

"I would like to see the Ministry of Defence be very clear that they will be prosecuted where these deaths take place.

"We ask people to step forward and join the armed forces and place their life on the line in the theatre of battle.

"We should not ask them to step forward and face death when they're on a training or selection exercise."

Judge Advocate General His Honour Jeff Blackett presided at the Bulford court-martial. 

Military Commissions in the U.S.

There’s no shortage of news this week, but comparatively little of it is national security law news, and so we are back with a fresh deep dive episode. For better or worse, it’s our longest episode yet (topping out a bit over 1:20). So find a comfy spot, pop in the headphones, and prepare to dive deep, deep, deep into the history of military commissions in the United States! Get ready for Ex Parte Milligan, Ex Parte Quirin, and Hamdan v. Rumsfeld, and much more besides!

Links to a podcast.

The ICC, Myanmar and the Rohingya

The Guardian (UK) reports that, Myanmar Rohingya crisis: ICC begins inquiry into atrocities

The chief prosecutor of the international criminal court (ICC) has announced she is launching a preliminary investigation into the deportations of hundreds of thousands of Rohingya Muslims from Myanmar into Bangladesh.

Fatou Bensouda said in a written statement and video message on Tuesday that she had begun an inquiry – formally known as a preliminary examination – to establish whether there was enough evidence to merit a full investigation.

Bensouda said she would look at reports of “a number of alleged coercive acts having resulted in the forced displacement of the Rohingya people, including deprivation of fundamental rights, killing, sexual violence, enforced disappearance, destruction and looting”.

Also: Statement of ICC Prosecutor, Mrs Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh

Uganda Law Society pushes back on courts-martial of civilians

The Uganda Law Society has criticized the country's continuing use of military courts to prosecute civilians. Details here. Excerpt:

Speaking at the launch of the 7th rule of law quarterly report, Dr. Daniel Ruhweza, the chairperson of the Uganda Law Society (ULS) rule of law and strategic litigation committee, said the clause is "dangerous" and soils the nation's reputation.

“The army is in bad light whenever civilians are tried, especially if they have political underpinning or alliances," he said.

"Lead the move to push for the amendment of this law to remove the dangerous clause that is putting us in bad light and is increasingly giving room to all the critics."

Prof. Fredrick Ssempebwa, the chairperson of the ULS advisory panel, said although the UPDF Act provides for trial of civilians in the army court, the rationale is not enough to have them face the military court.

“We know that there is a law, the UPDF Act, which apparently authorises the trial of civilians on ground that they have been found with firearms. There is no rationale to support it.

"Civilians should be tried in proper civil courts,” he said.

Court reorganization proposed in Moscow

RAPSI reports on a proposal to reorganize Russia's military courts:

Chairman of the State Duma Committee on state building and legislation Pavel Krasheninnikov has submitted a bill proposing to reorganize military courts in Russia to the lower house of parliament.

According to Krasheninnikov, the bill was drafted to bring the military court system in line with a recently passed federal constitutional law establishing appeal and cassation courts of general jurisdiction, including military ones.

The bill also reads that military and navy courts are to be renamed in accordance with current military division as well as location and number of newly formed district directorates of Russia’s National Guard.

Authors of the bill also propose to establish a jurisdiction of new garrison military courts spreading it to territories with garrisons, military formations, agencies and institutions with military service.

Krasheninnikov also proposed to rename military courts in another bill to sort their powers as first instance courts for criminal cases, including ones on terrorism.

Are commanders boycotting the UCMJ?

LTC (R) Frank Rosenblatt, JA, USA

Retired Army JAG Corps Lieutenant Colonel Frank Rosenblatt writes here for Military Times about Defense Secretary James N. Mattis's recent memo about commanders' use (or nonuse) of the UCMJ. Excerpt:

Avoiding civilian casualties does not guarantee mission success, but failing to reckon for them virtually guarantees mission failure. Operation Iraqi Freedom and its progeny ended in 2011 not because U.S. forces had accomplished their mission or because they were defeated on the battlefield. Rather, Iraqis had grown so incensed at a lack of accountability for civilian casualty incidents that their government refused to continue to confer acceptable status protections for U.S. forces to remain in country. In Afghanistan, the strategic setbacks from civilian casualty incidents are well documented.

With few exceptions, military commanders talk about the importance of avoiding civilian casualties to military success. Yet also with few exceptions, they fail to employ the UCMJ to prevent and punish civilian casualty incidents.

*   *   *

The rights of the accused deserve equal attention. If the 16 service members involved in the Kunduz incident did in fact suffer career-ending consequences through administrative measures ― again, we don’t know ― it is troubling that they did not enjoy the same rights to defend themselves as they would have enjoyed through the UCMJ.

The UCMJ reflects the timeworn balance of accomplishing the military mission with the rights of the accused, as Mattis noted. “The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it.”

He could have added: “Or lose it.”

Holed up in the Senate

Sen. Antonio Trillanes IV remains holed up in the Philippine Senate while the civilian courts decide whether the armed forces can arrest him, as apparently ordered by President Rodrigo Duterte. Sen. Trillanes is a former naval officer and the fight is over whether he is still subject to military justice. Details here on the state of play.

Another Guantanamo issue emerges

Col. Vance Spath, USAF (Ret)

The Guantanamo military commissions have spawned yet another issue. One of the judges, who recently stepped down, has been hired by the Justice Department as an Immigration Judge, serving at the pleasure of the Attorney General. The defense wants to have his commission rulings set aside, and has filed a motion with the U.S. Court of Military Commission Review. At issue is when the judge applied for the DOJ judgeship. Carol Rosenberg, dean of the Guantanamo press corps, has the story here.

"Marines United" fallout

Military.com reports here on the disciplinary fallout of the "Marines United" nude-photo-sharing scandal. Excerpt:

"Of the 101 dispositions complete as of Sept. 5, the results were as follows:

3 general courts-martial
6 special courts-martial
2 summary courts-martial
16 non-judicial punishments
8 administrative separations
29 adverse administrative actions
37 cases concluded without formal adverse action"

The court-martial of Senator Trillanes, Act I, scene 2

The Supreme Court of the Philippines has denied an application for a temporary restraining order in the case of Senator Antonio Trillanes IV, a former naval officer facing a potential court-martial. Details here. Back to the lower courts for the time being, assuming the armed forces hold off.

The Mattis Memo

Hon. James N. Mattis
Secretary of Defense

Secretary of Defense James N. Mattis's recent memo about how to deal with disciplinary issues continues to provoke discussion, as in this article. Still unanswered: why was it issued, and why are sex offenses the only kind of crime it refers to specifically.

Supreme Court of India says courts should not interfere in postings and transfers of military personnel

The Supreme Court of India has once again reiterated that Courts should ordinarily be loath in interfering in postings and transfers of military personnel.

A detailed post on the decision is available on Live Law, along with a copy of the judgment.

However, there is something amiss. In the said case, as recorded in the decision of the Supreme Court, the Union of India submitted (and the Court apparently accepted on face value without there being any opposition from the opposite side) that such matters needed to be agitated before the Armed Forces Tribunal (AFT) and not the Supreme Court.

However, the reality is that there is a direct prohibition in the Armed Forces Tribunal Act, 2007, which spells out that the AFT cannot entertain matters concerning postings and transfers. Section 14 of the Act confers power on the AFT to adjudicate upon ‘service matters’, however, proviso (ii) to Section 3(o)(iv) clearly and explicitly states that postings and transfers would not form a part of ‘Service Matters’. The relevant provision runs as under:

“.....but shall not include matters relating to:—

(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950)”

In fact, the Union has always protested before the AFT in such matters that the jurisdiction on postings and transfers is only with Constitutional Courts, that is, the High Courts and the Supreme Court, and not with the AFT.

Besides other pointers, in the humble opinion of this author, this shows the lack of seriousness of various parties even when matters are being heard by the highest Court of the land of the largest democracy. Not a good sign.

Opera buffa in Manila

A strange and disturbing situation has been brewing in the Philippines. It concerns a senator who used to be in the Navy. Problem is he's a dissident and President Rodrigo Duterte is on his case. This Rappler essay by Glenda M. Gloria gives the background. If you favor the rule of law, you won't be pleased. How it will wind up is anybody's guess. Excerpt:

Third, before the military can even convene a general court martial to try Trillanes for violation of Articles of War, it has to first establish that the senator is now in fact a soldier.

Does the military have existing rules and processes that allow a resigned soldier to return to the service? Yes, but this assumes one thing: that the resigned soldier is volunteering to return. We have no doubt that becoming a Navy officer again is farthest from Trillanes’ mind.

Still, Esperon argues that when Trillanes committed those crimes, he was a soldier. Ergo, if the amnesty that voided these crimes had been likewise voided, then he has to be tried by the military that ought to have punished him in the first place.

Let’s follow this logic for one second and imagine a court martial proceeding against Trillanes.

After, say, 4 weeks of hearing, the court martial declares Trillanes guilty of conduct unbecoming of an officer and a gentleman for plotting against Gloria Arroyo. The court will then cite the punishment for that based on the Articles of War.

Court martial: Lieutenant Senior Grade Trillanes, you will be removed from the service for being a dishonorable officer and a gentleman!

Trillanes: But, sir, I had long ago left the service. In May 2007, to be exact. And I have records to show for this, signed no less than by the honorable National Security Adviser, General Esperon, sirs.

Court martial: Ah, yes. In any case, we will detain you then!

Trillanes: But, sirs, I have already spent 7 years in jail. And records will bear me out.

Court martial: We can always extend that sentence.

Trillanes: On what charge this time, sir?

The military judges will be left scratching their crew-cut heads. Or, Trillanes can do them a favor by mounting a mutiny right there and then and botching it – again.

Does the military honestly want to go through that?

Explainer: The implication of the ruling on decriminalization of homosexuality on the Indian Military

This is a cross post from my blog on the implication of the recent decision of the Supreme Court of India whereby a Section of the penal code which criminalized homosexuality, was read down.

Many have posed questions to me on the above subject and my views were also carried by publications and circulated on social media. However I thought I would clarify my opinion on the matter in a more detailed manner:

Since Section 377 of the Indian Penal Code (IPC) has been read down by the Supreme Court of India to the extent of consensual sexual activity, the same implications shall follow on the invocation of the said Section in the military if pressed into service in terms of Section 69 of the Army Act (AA) which entitles the military to try personnel for offences under the general law of the land.

The term “unnatural” as it exists in Section 46(a) AA would have to yield to the same interpretation as has been applied by the Supreme Court for Section 377 IPC. I do not agree with individuals who have commented that the terminology “unnatural” as it appears in Section 46(a) AA needs to be specifically stuck down by a Constitutional Court or repealed by the Parliament. It has already been held by the Supreme Court that homosexuality is not “unnatural” and hence it does not lie in the mouth of anyone to state that it is not “unnatural” for the purposes of Section 377 IPC or for civilians or other human beings but it continues to be “unnatural” for the purposes of Section 46(a) AA and for defence personnel. Let us also remember that the Supreme Court has not stuck down Section 377 IPC but has merely read it down and interpreted it. Bestiality etc would continue to be “unnatural” under Section 377 IPC as per the judgment and hence would remain an offence under Section 46(a) AA as well.

Disgraceful conduct of a cruel or indecent kind would continue to remain an offence under Section 46(a) AA.

Homosexual activity between two individuals would continue to remain an offence where similar heterosexual activity is falling under the realm of an offence. The decision may protect private consensual sexual activity between two individuals where it is not causing any implication on military service but any homosexual activity which is not consensual or any such homosexual activity which might be an offence in the military backdrop even if it had been heterosexual, would not be protected.

Moreover, no such reservations or worries have been expressed as yet by the official establishment and it won’t entirely be correct to state that the military is acutely concerned or worried. Like society at large, the military also self-adjusts to changes in law or interpretation of law and there is no lack of progressive thought in adapting to new situations within the military, and hence undue controversy need not be generated till any such issue arises, which would be addressed within the four corners of law when required. It may also be appreciated that multiple situations cannot be predicted in such scenarios with due certainty.

Last but not least

The U.S. Court of Appeals for the Armed Forces finally issued its last decision on the Term this week. United States v. Barry, by a 3-2 vote, dismissed with prejudice the charges against a Navy SEAL because of actual unlawful command influence resulting from comments made to the convening authority by a Judge Advocate General Corps admiral (now the Navy's JAG). According to Chief Judge Scott Stucky:

It is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed should not be approved. As a result of this unusual admission, we granted review to determine whether the most senior officials in the Navy Judge Advocate General’s Corps (JAGC) unlawfully influenced the convening authority or created the appearance of doing so. We further specified the issue of whether the Deputy Judge Advocate General (DJAG), the JAGC’s second highest ranking officer, is capable of exerting unlawful influence. We hold: (1) that a DJAG can indeed commit unlawful influence; and (2) that the Navy DJAG actually did so in this case. 

1st person account: sexual assault

The New York Times Magazine has run this account by Justin Rose of his experience as the victim of sexual assault while serving in the U.S. Marine Corps. He writes:

Long after the attack itself is over, you’re left dealing with all the toxic doubts and self-blame that come with being sexually assaulted. I fought with the idea that I somehow invited this upon myself, that I deserved it or was somehow to blame for the assault. It stripped away my confidence and degraded the trust I had in my fellow Marines. I questioned the values that I first bought into when I became a Marine: the belief in honor, courage and commitment that was instilled by our drill instructors. I didn’t immediately confront my attacker face to face — so where was my courage or honor? How would I react to real combat? Where was the commitment from my fellow Marines, when I needed support in the aftermath of the attack? Would they be there for me if I needed their help on the battlefield one day?

Justice eventually came to the assailant, as you'll see, but it took a long time. 

A nice quiet retirement . . . in the stockade?

The Supreme Court of the Philippines has before it a petition by an opposition senator seeking to bar his trial by court-martial. He retired in 2007, before becoming a senator, and has now run afoul of President Rodrigo Duterte. The military is deferring action until the court rules. Watch this space; this could be an important test for judicial independence. The trial of retirees in a court-martial has been a particular issue in Latin America, as a means of suppressing dissent.

Coverage here.

International Criminal Law Roundup

International Criminal Law Roundup: Part II, comes to us from the JustSecurity blog.

This is Part II of an international criminal law roundup focused on the ad hoc international and hybrid tribunals. Part I was dedicated to developments at the ICC. Part III will survey some domestic proceedings involving international criminal law.

Implications of the decision of the Supreme Court of India on homosexuality in the military

As many readers would be aware, the Supreme Court of India has finally consigned a provision criminalizing homosexuality to the dustbin of history.

The detailed judgement can be accessed here.

A question arose on its implications on the military. The Print has carried a report which can be viewed here. Although I must warn, that the headline of the same is hyperbolic since no ‘worry’ has been expressed from any (military) quarter on the subject, as yet.

UN Report on war crimes in Yemen

New UN Report Says All Parties to Yemen Conflict May be Responsible for War Crimes, reports JustSecurity.

A damning new United Nations report, published last week, implicates all parties to the conflict in Yemen in possible war crimes. This includes the military coalition led by Saudi Arabia and the United Arab Emirates, the government of Yemen and the Houthi armed group. The report, written by the group of eminent experts (GEE) appointed by the U.N. Human Rights Council to investigate the conflict in Yemen, calls on the international community to “refrain from providing arms that could be used in the conflict in Yemen.”

Some of its key findings include: 

The Saudi and UAE-led coalition (the coalition) airstrikes have caused “most of the documented civilian casualties” in the Yemen conflict.
 The coalition’s severe air and naval restrictions on Yemen had a foreseeable and devastating effect on the civilian population. The experts had “reasonable grounds to believe” these restrictions were imposed in violation of international human rights and humanitarian law.
 UAE personnel have arbitrarily detained individuals and subjected detainees to torture, sexual violence, and other forms of cruel-treatment in facilities under their control.
The Houthis and the forces aligned with former Yemeni President Ali Abdullah Saleh (who was killed in December 2017) are responsible for numerous abuses, including the shelling of civilians, impeding the delivery of humanitarian supplies and commercial goods, subjecting individuals to arbitrary detention, committing acts of cruel treatment and torture, restricting freedom of expression and belief, persecution of the Baha’i minority, and forcibly conscripting and enlisting children under 15.
 All parties to the conflict have severely restricted freedom of expression by harassing and impeding the work of human rights defenders, journalists and activists.
The government of Yemen and UAE-backed forces are responsible for perpetrating acts of sexual and gender based violence.
 All parties to the conflict are responsible for the forcible conscription or enlistment of children into armed forces or groups, and have used them to participate actively in hostilities. The experts specifically note that they received reports that the Houthi-Saleh forces “forcibly recruited children in schools, hospitals and door-to-door.”

Training fatalities lead to court-martial

The Sun (UK) reports:

Three SAS reservists tragically died while on a hike in the Brecon Beacons in 2013, now two soldiers are being tried by court martial over the deaths

Two SAS soldiers are being tried by court martial over the deaths of three reservists on a ­gruelling 16-mile march.

A captain running the Brecon Beacons exercise and the chief instructor, who have not been identified, deny negligence.

UCI in India

“Is unlawful command influence growing in the military?” published in Daily News & Analysis on 3 September 2018 is available at:
<https://www.dnaindia.com/analysis/column-is-unlawful-command-influence-growing-in-the-military-2658427>

Happy Labor Day