Thursday, August 22, 2019

A verdict at dawn

Ten anglophone separatists were convicted by a military court in Cameroon after a one-day trial, according to this Bloomberg report. They were given life sentences. "The men were found guilty of charges including acts of rebellion and hostility against the state after a trial that took less than 24 hours and concluded around 5:30 a.m. on Tuesday, according to the head of their lawyers’ team, Nico Amungwa Tanyi."

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Wednesday, August 21, 2019

Brig. Gen. Watkin weighs in on Stillman

Brig Gen (ret) Kenneth Watkin, a respected former judge advocate general of the Canadian Armed Forces, weighs in here on Just Security with his views on the Supreme Court of Canada's unfortunate 5-2 Stillman decision, which he describes as "a watershed judgment." He writes:
"Differences in legal approaches may not be limited to the underlying system of law, but also result from national experience regarding the circumstances under which military forces are disciplined and employed. For example, the United States, the United Kingdom, Canada, Australia, and other States have a long history of extra-territorial military operations in times of peace and war. This expeditionary history may lend itself to a greater acceptance by courts of the broad exercise of jurisdiction by service tribunals."
Brig Gen Watkin calls into question the utility of the 2006 Decaux Principles, claiming they "have attracted significant criticism," a proposition for which he cites only a single source (a retired Canadian Forces JAG colonel). His overall stance, regrettably, is one of skepticism about the feasibility of identifying basic principles that can safely be applied across national legal-system lines. Like the Supreme Court, he draws comfort from the fact that the Canadian military justice system has evolved quite a lot and that (unstated) future changes cannot be ruled out.

If Brig Gen Watkin's views reflect those of the current leadership of the Canadian Armed Forces, friends of reform and the application of broadly accepted standards will have to look elsewhere for positive action. Stillman may embolden partisans of voracious military jurisdiction in Canada and elsewhere and prove an enduring source of dismay for those who believe military justice should remain exceptional and with as narrow a jurisdiction as possible.

50 years on

Texas Public Radio has this report by Jay Price about the Camp Lejeune riots of 1969. Excerpt:
"Lejeune is really the first major racial gang fight in the military," said history professor James Westheider of the University of Cincinnati Clermont, author of Fighting on Two Fronts, a book on African American troops during the Vietnam war. He said racial violence later broke out at bases in Tennessee, Hawaii, and elsewhere.

"So in many ways, it's really the prototype of what the military is going to go through in the next couple of years," Westheider said.

Sunday, August 18, 2019

Deskbooks on commanders and the law

The Military Commander and the Law (2019) (507 pp., free) has been released by the U.S. Air Force Judge Advocate General's School. "This publication is used as a deskbook for instruction at various commander courses at Air University. It also serves as a helpful reference guide for commanders in the field, providing general guidance and helping commanders to clarify issues and identify potential problem areas."

The Air Force is not alone. The Naval Justice School publishes the USN/USMC Commander's Quick Reference Legal Handbook (QUICKMAN) (Oct. 2018) (171 pp., free).

The Criminal Law Department at the Judge Advocate General's Legal Center and School publishes the Criminal Law Deskbook: Practicing Military Justice (Jan. 2019) (1035 pp., free). This behemoth is for lawyers, however, not commanders.

For your military commissions bookshelf

Sketching Guantanamo: Court Sketches of the Military Tribunals 2006-2013 (2013) by courtroom artist Janet Hamlin, with a foreword by Carol Rosenberg and an afterword by Karen J. Greenberg.

Friday, August 16, 2019

Boxcar number du jour

At reveille this morning, Global MilitaryJustice Reform's figure for total hits since its inception on January 12, 2014 stood at a whopping 700,007.

Thanks, everyone (even you, bots).*

P.S. Did you know you can follow Global Military Justice Reform automatically? Just sign up -- see the app lower down on this page.

* 74 hits from the Philippines in the last two hours?

Thursday, August 15, 2019

Not beach reading

The American Psychological Association has recently published Forensic Psychology in Military Courts. Contributors include some of the leading names in military justice and psychology. List price $79.99, but available for less online.

"The contributors are forensic psychologists and military legal personnel — including defense attorneys, prosecutors, and judges — who offer expert tips and strategies for navigating the court-martial process. They introduce psychologists to the rules, procedures, and people involved in military trials. They also explore psychologists' many potential responsibilities, such as trial and litigation consulting, assisting with panel selection, conducting pretrial witness interviews, educating legal counsel about psychological science, administering psychological evaluations, and testifying as expert witnesses."

Maduro's Venezuela and the misuse of military courts

The Caracas Chronicles reports:
On Tuesday morning, Dgcim officers made Rubén González’s family leave court. He was the secretary general of the Ferrominera Orinoco Workers Union and he has been in jail at La Pica prison for over eight months. Mid-afternoon, the military court sentenced González to five years and nine months in prison for assaulting the Armed Forces and the guard, after they detained him on November 2018 when he was coming back from a protest to demand Nicolás [Maduro] that he’d respect the workers’ collective agreements, those Maduro disregarded when he imposed in August 2018, the public administration salary tabs, deteriorating every agreement contemplated in the contracts. González’s lawyer, Miguel Ekar, assured that the Military Prosecutor’s Office didn’t present a single convincing piece of evidence that proved that he was guilty and that this was the “most abhorrent military trial in Venezuela.” According to Article 49 of our Constitution, judging civilians in military trials is illegal, another step in Nicolás’s repressive policy, who still calls himself “el presidente obrero”.
Venezuela has a long record of using military courts to try civilians. The practice violates the jurisprudence of the Inter-American Court of Human Rights. 

Legislative interference in a Liberian case

The senator who co-chairs the defense and security committee in Liberia's upper house has demanded stringent action against a corporal who threatened protesters on his Facebook page. Details here. (Liberia's military code is called the Uniform Code of Military Justice.)

Wednesday, August 14, 2019

At it again in Uganda

A civilian is among those facing charges before a division court-martial in Uganda, the Daily Monitor reports.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Uganda is a leading violator of this principle.

Tuesday, August 13, 2019


H/T to Global Military Justice Reform contributor Don Rehkopf for this link to National Registry of Exonerations data on military exonerations.

Intercommunal violence and a threat of military courts in Chad

Facing intercommunal violence, Chad's president has threatened to reintroduce military courts, according to this report.

Human rights norms strongly disfavor the use of military courts to try civilians.

Civilian justice and reconciliation

Can or should a civilian justice official direct the liberation of soldiers being held by the military for serious offenses as part of a truth and reconciliation process? That question has arisen in Gambia, as reported here in the case of the so-called "junglers."

Monday, August 12, 2019

By the numbers

As of today, Global Military Justice Reform has hit the magic number of 5000 for total posts. Here are the other numbers:

Hits: 698,511
Comments: 709
Jurisdictions: 185
Contributors: 20

From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, thanks to everyone who has made this landmark possible. Hip-hip . . .

Will military executions resume given new administration policy?

Nancy Montgomery of Stars and Stripes reports here on the potential impact of the Trump administration's announced plan to resume civilian federal executions. There have been numerous military capital prosecutions and a number of death sentences, but no executions since U.S. Army Private John A. Bennett, age 26, was hanged at Ft. Leavenworth on April 13, 1961.

Illinois Code of Military Justice amended

Governor J.B. Pritzker has signed Senate Bill 2076, amending the Illinois Code of Military Justice. The enrolled bill can be found here. The measure is effective immediately. The purpose of the new law is to bring the state's code into sync with the Uniform Code of Military Justice. Watch for other states to pass comparable legislation in light of the federal Military Justice Act of 2016.

Court-martial pardons and the rule of law

Kevin Govern and Jesse Hamilton have written this thoughtful essay for the Penn Law Rule of Law Post on the potential rule of law downside of presidential clemency in military cases. Excerpt:
"The purpose of executive clemency is to correct for injustices that sometimes occur within the legal system. Its purpose is not to arbitrarily forgive those who have been dealt with justly under the UCMJ and especially not to curry political favor or to attempt to divert the public’s attention from other controversial matters. This is all the more true when the pardon at issue may serve as a detriment to military morale and discipline. Future pretrial and post-trial comments, clemency actions, and pardons should be measured to reinforce military members’ and the public’s confidence in the military justice system, support the rule of law, and discourage future war crimes by members of the U.S. military."

Saturday, August 10, 2019

Court-martial minefield: case against Canada's chief military judge exposes fatal flaws

Commentary in the 27 July edition of the Halifax Chronicle Herald
by Tim Dunne

Our military justice system is crawling through a legal minefield in the wake of charges against Col. Mario Dutil, the Canadian Armed Forces’ chief military judge. (He’s believed to be the only Canadian chief military judge ever to be the subject of a court martial.)

Col. Dutil was appointed military judge on Jan. 10, 2001, and chief military judge by cabinet on June 2, 2006.  The appointment of his deputy, Lt.-Col. Louis-Vincent d’Auteuil, followed on June 14, 2018.

The Canadian Forces’ National Investigation Service’s 26-month inquiry of Dutil began in November 2015 and resulted in charges of fraud and wilfully making a false statement in a travel claim for $927.60.

Four additional charges were laid under the infamous section 129 of the National Defence Act — for conduct to the prejudice of good order and discipline relating to an inappropriate relationship. Some of the charges were dropped at the outset of the court martial.

(Under current regulations, an “inappropriate relationship” is an offence only in the Canadian military, which means Dutil can only be tried on this charge by court martial.)

The Canadian Armed Forces operates two forms of court martial. The standing court martial is presided over by a single military judge, and the second, the general court martial, comprises a military judge and a panel of five officers who determine guilt or acquittal, similar to a jury in a civilian court.

Col. Dutil’s standing court martial opened on June 10 with his lawyer, Philippe-Luc Boutin, requesting that the presiding judge, Lt.-Col. d’Auteuil, recuse himself and subpoenaeing him as a witness for the defence.

Lt.-Col. d’Auteuil did so, concluding the court martial on June 18 without a verdict.
In his written ruling, he underscored the right to a reasonable trial guaranteed by the Canadian Charter of Rights and Freedoms and the obligation of the prosecutor to deal with the charges as quickly as circumstances allow, as required by section 162 of the National Defence Act.

Lt.-Col. d’Auteuil also acknowledged the professional and personal relationship between him and his superior. (Justice d’Auteuil became Dutil’s confidant and friend and helped him manage his relationship with the subordinate with whom he had the “inappropriate relationship.”)

The judge acknowledged that their friendship might give the appearance of bias on his part. He noted it might be difficult to set aside everything he knows about the accused to ultimately have the kind of free and open mind required to assess the matter dispassionately. A well-informed person who was to study the matter in-depth, realistically and practically, could conclude that he may be biased. (The subpoena further underscores the legalistic entanglements in this tribunal.)

Gordon Hewart, Britain’s Lord Chief Justice from 1922 to 1940, opined that “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” This leaves absolutely no room for questions to be raised about judges’ impartial adjudication of cases and the administration of justice. This was reinforced by Canadian Supreme Court Justice Gerald LeDain in Valente c. The Queen (1985).

Here’s the rub. There are five military judges in Canada.

Justice d’Auteuil indicated that there is no apparent obstacle to the selection of another military judge, nor to the appointment of another military judge from the Canadian Forces’ reserve component to preside at Dutil’s court martial.

Following Lt.-Col. d’Auteuil’s self-disqualification, the Canadian military prosecution service, assisted by the Department of Justice, reviewed the reasons for the military judge’s decision. On July 16, the director of military prosecutions filed an application for judicial review by the Federal Court of Lt.-Col. d’Auteuil’s decision not to appoint another military judge in his stead to preside over Col. Dutil’s court martial.

If the application is allowed by the Federal Court, the deputy chief military judge will be compelled to appoint another military judge to replace him.

But that wouldn’t really solve the problem.

The remaining judges are under Col. Dutil’s chain of command and know the accused, as well as the witnesses, the court administration and even many of the military lawyers who could participate in another court martial. A newly appointed military judge would also fall under Dutil’s chain of command.

All accused have the right to an independent and impartial hearing, begging the question: If the remaining judges find themselves in a difficult position because of their relation to the accused, can they recuse themselves? She or he would be forced to weigh the case against their boss, potentially calling into question the impartiality of any presiding military judge.

The conundrum itself calls into question the very raison d’être of the military justice system.

New handbook on LOAC

Writing for Just Security, Col. (Ret) Michael W. Meier reports here on the new Army/Marine Corps Commander's Handbook on the Law of Land Warfare. Excerpt:
Similar to the way Francis Lieber outlined the basic LOAC principles as he saw them at the time, the basic LOAC rules and principles applicable to Soldiers and Marines today can be summarized by the following basic Soldier’s Rules (see AR 350-1)/Marine Corps Basic Principles (see MCO 3300.4A), developed by Army and Marine judge advocates to train Soldiers and Marines to conform to LOAC standards applicable in all military operations:
  • Fight only enemy combatants.
  • Do not harm enemies who surrender. Disarm the enemy and turn them over to your superiors.
  • Do not kill or torture enemy prisoners of war or other detainees.
  • Collect and care for the wounded, whether friend or foe.
  • Do not attack medical personnel, facilities, or equipment.
  • Destroy no more than the mission requires.
  • Treat all civilians humanely.
  • Do not steal. Respect private property and possessions.
  • Do your best to prevent violations of the law of war.
  • Report all violations of the law of war to your superiors.

Can retirees be court-martialed?

A unanimous panel of the U.S. Navy-Marine Corps Court of Criminal Appeals says No. Gina Harkins of has the story here.

Thursday, August 8, 2019

Worst idea of the week

How's this for a nifty idea: give the military courts jurisdiction over civil cases? Excerpt from George Mangula from Eagle Online:
The UPDF has also played an important legal role by prosecuting its own officers and civilians involved in armed robbery, terrorism and related acts. I see no wrong therefore that the military should help handle some civil cases since the institution has qualified legal personnel.

It is amazing that using little resources, the UPDF General Military Court Martial handles its work better than the conventional courts in Uganda. The military court is cognizant of time in case dispensation but also issues of corruption cannot be mentioned here. We have had judicial officers in conventional courts arrested for taking bribes to defeat justice, the same has not happened in the General Court Martial system.

That is why I urge policy makers to allocate UPDF a bigger role in the national judicial system so that they help poor Ugandans get justice in the shortest time possible, moreover at a cheaper cost. The process in normal courts is so tedious and unfair to the poor Ugandans who form the majority of the country’s population, now estimated to be about 40 million people. Yet those who run the conventional judicial system in the country are doing less to address the challenges that the poor face in courts, despite the pledges the judiciary makes every year to speed up court processes.

There is evidence that simple cases which should have been resolved within a month or two have taken over 10 years, just because some judicial officers in connivance with lawyers representing both parties want to continue benefiting financially from those cases at the disadvantage of poor Ugandans. This could also explain why a backlog of cases still exists within the conventional courts, despite the usual complaints that the courts are understaffed and its officials underpaid.
Good grief

Special Victims' Counsel aren't available for everybody

Special Victims’ Counsel (SVC) help survivors of sexual assault navigate the court-martial process, and as the Marshall Project notes, also serve as an advocate to help protect against collateral consequences of reporting an assault. But there is still a coverage gap in the SVC program, how to treat non-DOD affiliated civilians sexually assaulted by military members.

Generally speaking, SVC eligibility is limited to those affiliated with the military through direct, or a family member’s, service. So current rules and resources limit SVC availability, preventing assistance to all survivors where the perpetrator was military. As the Marshall Project suggests, even changing the law will not necessarily correct this gap because the military does not have the manpower to staff fully for this need.  

So while the SVC program provides a valuable resource to survivors, it will be curious to see if this hole remains. Perhaps there is a role for more robust victim advocate programs to fill this need. Employing additional victim advocates on military installations may be less costly than hiring more full-time JAGs. I know from Germany, before the SVC program commenced, victim advocates provided support to unaffiliated local nationals who were assaulted by service members. So there is a framework that could be followed, and there is unlikely to be collateral consequences for unaffiliated civilians in the court-martial system that require assistance by trained legal professionals.

Faith and uniforms: no "medieval horse-militia" need apply

The Congress of South African Trade Unions (COSATU) has issued a strong statement on the case of Major Fatima Isaacs, a Defence Force officer whose hijab has become a bone of contention. Excerpt:
The Minister of Defence indicated in her recent budget vote that she had requested the Chief of the SANDF to resolve this matter; the fact that this matter is now before the court and Major Isaacs’ career and constitutional rights are threatened is a shameful indictment upon the Minister and Chief of the SANDF. The President of the Republic must instruct them to drop this case with immediate effect and to apologise to Major Isaacs for their shocking behaviour.

Otherwise, Major Isaacs must take this matter to the Constitutional Court because COSATU is confident that these idiots will be excoriated and given a lecture by the court and it will remind them that the SANDF is not a medieval horse-militia that embraces antiquated and anachronistic methods.

Not military justice, but . . .

Congratulations to the prolific Professors Geoffrey Corn and Rachel VanLandingham on this read-it-carefully Lawfare piece. Excerpt:
During our most recent annual Transatlantic Dialogue on International Humanitarian Law—a gathering of military, academic and policy experts on the law applicable to armed conflicts held this year at the U.S. Military Academy at West Point—we debated the extent to which the LOAC requires civilian casualty (CIVCAS) reporting and investigation as a method of of civilian risk mitigation i. The gathered experts discussed the function and impact of CIVCAS assessments on the humanitarian and operational imperative of limiting harm to civilians during war. The ensuing discussion mirrored the broader issue itself as it searched for some consensus as to the value and the limits of such assessments, their concomitant resource-intensive investigations, and surrounding publicity. The bottomline of our discussions was that fostering greater awareness of civilian casualties caused by combat operations is generally a normative good and may possibly lead to reduced risk of harm to civilians (despite the lack of empirical data supporting such aspiration). However, such internal and external accounting of civilian casualties must be accompanied by both a feasibility acknowledgment—an appreciation that the extent of such accounting will be based on battlefield practicality, and hence can differ from one operation to the next—as well as by strong contextual checks and balances to avoid unintended perverse consequences.

Government immunity for wrongful death of military personnel

The United States Court of Appeals for the Sixth Circuit has issued its decision in Siddiqui v. United States, No. 18-2415. The very first paragraph at least begins to tell the tale (the underlying facts of which many readers will recall):
This case resulted from the tragic death of Raheel Siddiqui, a private in the United States Marine Corps who fell to his death during basic training. His parents, Ghazala and Masood Siddiqui, sued the United States under the Federal Torts Claims Act (FTCA), alleging that the Government negligently misled Private Siddiqui into enlisting, assigned him to the command of officers already under investigation for abusing another Muslim recruit, failed to protect him from discriminatory abuse that led to his death, and failed to investigate fully the circumstances of his death. Because the doctrine announced in Feres v. United States, 340 U.S. 135 (1950), bars suits for tort claims arising from injuries incident to military service, we are bound to AFFIRM the district court’s dismissal of the case for lack of subject matter jurisdiction.
The unanimous opinion, which is not even recommended for publication, is short. Read the whole thing. Unless the Supreme Court, with two new Justices, is willing to revisit Feres, Congress has to step in.

Wednesday, August 7, 2019

Why is this case in military court?

Bloomberg News reports that an Algerian military court has ordered the arrest of a former defense minister on charges of conspiring against the army and disrupting public order.


This just in from Kyiv

"In general, we need a military justice. Anatoliy Matios [chief military prosecutor] says we need a whole vertical: starting with military detectives, military prosecutors, and ending with military courts. I am absolutely not sure this is right, I've always been an opponent of this: both military courts and military justice system as a whole. I don't think there is an urgent need for this. Perhaps a military prosecutor's office will also be one of the areas that will be subject to change."

Deputy chief of the Office of the President of Ukraine Ruslan Riaboshapka
quoted here

Egypt's military courts -- mission creep?

Mada Masr has this intriguing and dismaying report on the effort to expand the influence of and normalize Egypt's voracious military courts. Excerpts:
According to a number of judges and legal experts who spoke to Mada Masr on condition of anonymity, the constitutional amendments and the ensuing legislation entrench the Armed Forces firmly within Egypt’s judicial system, bestowing more authority on what is already the most powerful actor in the country. The changes also greatly expand the application of military trials for civilians, essentially normalizing what was once an exceptional practice.
*   *   *
The Court of Cassation source says the changes to the status of the military judiciary are part of a broader effort to undermine judicial independence. The president now has greater powers over the selection of the heads of Egypt’s top judicial bodies and will also determine appointments, promotions and other judicial aspects as head of the Council of Judicial Bodies.

“What they want will happen and nobody will object. Whether it’s the incorporation of the military judiciary into the civil judiciary, or essentially granting the president veto power over all judicial affairs, from appointments to promotions to assignments and so on,” says the deputy head of the Court of Cassation.

The first moves toward bringing the military justice system under the umbrella of Egypt’s civil judiciary and expanding the military’s authority to try civilians came during the drafting of the 2012 constitution, according to one of the 10 legal experts who drafted the 2014 constitution.

At the time, the head of the military judiciary called on the 2012 Constituent Assembly drafting the constitution to move articles related to the military judiciary — including a provision allowing for military trials of civilians — from the section on the Armed Forces to the section on the judiciary.
*  *  *
Overall, the constitutional amendments and the laws put forward help entrench the military judiciary within Egypt’s judicial system. Yet the deputy head of the Constitutional Court says that the changes go even further by giving the military “constitutional control” of the functions of the judiciary and the police.

The head of an administrative court puts it more bluntly: “The independence of the judiciary has ended.”

What goes around . . .

Ottawa: The Canadian Lawyers' Daily publishes an article titled "Armed Forces prosecutors seek to compel deputy chief military judge to assign judge to try top military judge". On July 16, 2019, the Director Military Prosecutions (DMP) filed an Application before the Federal Court of Canada to compel via a mandamus, the current Deputy Chief Military Judge to assign one of the other three (3) military judges to preside over the court martial of his boss, the Chief Military Judge.

Exactly a month earlier, the Deputy Chief Military Judge, Lieutenant-Colonel Louis Vincent d'Auteuil, had concluded that he and his fellow judges were all conflicted and, as a result, could not preside over the court-martial of Chief Military Judge, Colonel Mario Dutil.

As cited by Lawyers' Daily, the DPM's position is that it was improper for the Deputy Chief Military Judge make such a wide determination.
“It is the position of the Canadian Military Prosecution Service, as expressed in the application to the Federal Court that, in making conclusions on the ability of other judges to hear the case, the deputy chief military judge went beyond his authority,  It is the purview of any judge assigned to a case to make his or her determination as to whether they can act with impartiality.”

Personal tech, social media, and the Russian military

Meduza, a news service based in Riga, Latvia, reports:

Since March of 2019, Russian military servicemembers have been banned from using smartphones and posting photos taken on the job to social media. The new regulations were proposed in September of 2018, and Russia’s State Duma and Federation Council approved them the following February. After the new law received President Vladimir Putin’s approval as well and went into effect on March 17, Russian soldiers immediately began receiving punishments for violating it. After examining military court records, Meduza found that soldiers who are discovered keeping smartphones with them or posting social media photos are typically sentenced to 5 – 15 days in a military jail.

You can find the full article here.

Tuesday, August 6, 2019

CNO orders comprehensive review of Navy JAG Corps

Adm. John M. Richardson
In the aftermath of the Gallagher case, Chief of Naval Operations Admiral John M. Richardson has ordered a comprehensive review of the Navy JAG Corps. You can find his directive here.

Sunday, August 4, 2019

Happy Coast Guard Day

Established August 4, 1790

Stillman: where does the path lead from here?

Military justice mavens in Canada and elsewhere are still studying the Supreme Court's recent decision in Stillman v. H.M. The Queen, where the court held, 5-2, that the military crimes exception to the right to trial by jury applies to civilian offenses, even if there is no nexus to military service. It is safe to predict that law review articles will be appearing on this case in the coming moths. Global Military Justice Reform will welcome thoughts from Canadian readers, but here are a few to kick things off:

This case (like Solorio v. United States, which it unfortunately embraces) was wrongly decided, but the train had probably left the station when the court decided R. v. Moriarity, 2015 SCC 55. With that case's rejection of service nexus as a matter of parliamentary power, it would have been a miracle for the court to revive that principle in the limited context of s. 130(1)(a) cases. Barring a major turnover on the Supreme Court, Canada is stuck with this new piece of Charter jurisprudence: modification of the Canadian Charter is unimaginable. Less imaginable, but still a long shot, is persuading Parliament to amend the Code of Service Discipline either to repeal s. 130(1)(a) altogether or to insert a nexus requirement either for that section or for all offenses that have Canadian Criminal Code counterparts. (A proposal to amend the Uniform Code of Military Justice to require service-connection in the wake of Solorio died in committee.)

There is another way to restore the jury-trial right Stillman curtails--one that does not necessarily require legislation. Thus, the Department of National Defence or Director of Military Prosecutions could voluntarily impose a nexus requirement for any case in which there is concurrent civilian and court-martial jurisdiction and in which the potential punishment under the Criminal Code would trigger the right to trial by jury.

Even if that step is not taken, Canadian authorities might wish to consider taking a fresh look at the DMP's guidelines for concurrent jurisdiction cases.

Saturday, August 3, 2019

"We have a problem"

It concerns the Navy's SEALs. This Virginian-Pilot article has a link to a remarkable memorandum from the head of the Naval Special Warfare Command.

Thursday, August 1, 2019

No medals for Gallagher prosecution team

Pres. Donald J. Trump
Peter Baker of The New York Times reports here on President Donald J. Trump's order to the Secretary of the Navy and the Chief of Naval Operations to rescind the decorations issued to members of the prosecution team in the case of SEAL chief petty officer Edward Gallagher. Chief Gallagher was acquitted of all but one of the charges against him.

Mr. Baker reports that "[o]ther presidents have been dissatisfied with military prosecutors," but cites no examples. Can you think of one?

Wednesday, July 31, 2019

Who knew?

Mass Moments reports:

On this day in 1876, Congress established at New Bedford the first School of Instruction to train officers for the Revenue Service. The Service traced its history back to 1790 when Congress decided it needed to ensure that vessels entering United States ports paid tariffs on their cargo. In other words, they wanted to prevent widespread smuggling. Over the years, the Revenue Service took on additional responsibilities — protecting American ships from pirates, intercepting slavers after the Atlantic slave trade was banned, and assisting vessels in distress. In 1915 it merged with the Life-Saving Service and was renamed the United States Coast Guard. At that point the School of Instruction became the Coast Guard Academy, which has been located in New London, Connecticut, since 1910.

H/T John L. Talvacchia of the Massachusetts Bar.

Will military executions resume?

This Army Times article by Kyle Rempfer explores the potential implications of the Trump administration's push to resume federal executions. The last military execution occurred in 1961. Four men are on death row for offenses under the Uniform Code of Military Justice.

Tuesday, July 30, 2019

The Jadhav case: round 2

Khwaja Ahmad Hosain
Pakistani barrister Khwaja Ahmad Hosain has written this Wire analysis of what happens next following the decision of the International Court of Justice in India v. Pakistan (Jadhav):
The ICJ notes in its decision that “it is not clear whether judicial review of a military court is available on the ground that there has been a violation of the rights set forth in ….the Vienna Convention”. In reaching this conclusion, the ICJ proceeds on the mistaken assumption that constitutional amendments in Pakistan prevent persons convicted by military courts from relying on breaches of fundamental rights.

The relevant constitutional amendment prevented the law extending the jurisdiction of military courts from being struck down as unconstitutional. It did not restrict the right available to a person convicted by such court from challenging the conviction through a judicial review process. In light of the ICJ’s observations, it seems clear that the civilian courts must consider the impact of denial of consular access on Jadhav’s trial for Pakistan to fulfil its obligations to provide for effective review.

The government will need to proceed with caution in this case to ensure compliance with the ICJ decision. If Jadhav retracts his confession on the basis that it was given under duress and in absence of consular/legal advice, is there any other evidence linking him to the crimes he confessed to having committed? Convictions solely on the basis of confessions in custody are often troubling and unsound. In any case, the government and authorities should be focused on getting the right and fair result in any review and reconsideration, and the aim should not be to uphold the conviction at any cost.

Transparency watch (MONUSCO)

"MONUSCO informed Human Rights Watch that it was unable to comment on whether disciplinary action was taken against any of the UN peacekeepers involved."

A September 2017 massacre of Burundian asylum seekers occurred in Kamanyola but UN peacekeepers stationed a few hundred meters away did not intervene. Nor has the UN released its report of investigation. The whole story can be found here, thanks to Human Rights Watch.

Monday, July 29, 2019

Vector analysis and interpretation of Stillman

Lawyers' Daily publishes a careful analysis of the recent decision [Stillman v. Her Majesty the Queen, 2019 SCC 40] by the Supreme Court of Canada which concluded that the Canadian Parliament has validly enacted section 130 (1) of the National Defence Act by which a serious civil criminal offence is tried as as service office and, as a result, it qualified as "an offence under military law", thereby engaging the military exception in section 11(f) of the Charter of Rights and Freedoms.

Being a soldier is not easy. You are asked to do things not asked of other people.

Soldier's values and standards..
Fit, aggressive, courageous, disciplined, selfless,-loyal.
A tradition of service to the country.
The latest SCC decision in R v. Stillman champions the status quo.  This is a major disappointment for those, like me, who had hoped for a modernization and democratization of the Canadian military justice system.

In a 5-2 decision, the court does not introduce any changes to the military court martial system. Instead, the majority finds that there are no constitutional issues with the military’s use of a five-military member panel to decide Criminal Code matters (vice a 12-person civilian jury that is constitutionally protected for civilian trials). The court also upheld their previous finding in Moriarity which determined that there is no need for a military connection, or nexus, for a military court martial to assume jurisdiction over a Criminal Code offence. Failure to allow the military justice system to operate as-is, the majority find, could have the result of undermining confidence in the military justice system, and affect morale within the military.

A strong dissent

The dissenting opinion of Justices Karakatsanis and Rowe is diametrically opposed.

In a powerful dissent, these justices find that, to be heard before a 5-member panel, Criminal Code offences which could attract a term of imprisonment of 5 years or more actually should require a military nexus. Otherwise, the matter should be remanded to civilian court. The dissenting voice finds that the current military justice framework has clear unconstitutional elements, and would have dramatically altered the rights of a military accused facing criminal charges.  I agree with that dissent.

The net result

The result is that the majority decision endorses a two-tiered system of justice in Canada. Soldiers, sailors and aviators will continue to be the only persons in Canada who are denied the constitutional right to a jury trial.  A military accused charged with aggravated assault, for example, may be heard before a 5-person, all military panel. A conviction requires unanimity within this panel. A civilian charged with the exact same offence will have the right to a 12-person jury trial. It may be more difficult, optically, to achieve unanimity from a 12-person jury, than from a 5-person panel particularly when those five persons are drawn from the same pool (military officers) who share the same values, and ethos and reports -- before and after the trial -- to the same employer, the military chain of command.

To top if off, the judge is also a military officer.

Looking ahead

For the foreseeable future, the military justice system will continue to operate separate and apart from civil society. Ne’er the two shall meet.  In some ways, this runs counter to the growing trend of NATO countries which are eliminating military trials all together in peacetime.

Be that at it may it is now up to Parliament to decide whether the National Defence Act (NDA) should be amended, particularly in light of the 2018 report titled Administration of Justice in the Canadian Armed Forces submitted by the Auditor General.  That report which concluded that:

"The Canadian Forces did not administrer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases.  In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases."

Sunday, July 28, 2019

Stillman: an easy case?

A non-lawyer writing in the National Post has this to say about Friday's Stillman decision of the Supreme Court of Canada:
No other group in society willingly signs up to a job that involves, if necessary, employing massively destructive weapons to blow stuff up and kill people in a purely offensive mission. No other group in society signs up for a job where they can be ordered to stay behind and die in a helpless fight if the overall tactical situation requires said sacrifice. No other group in society agrees to serve under a regimented chain-of-command that they can be imprisoned for violating. No other group in society agrees to tolerate the same level of dislocation to their personal lives as military members take on as a matter of routine. (Imagine how you’d react if your boss told you you were spending the next eight months in a primitive camp in the middle of a hostile foreign country getting shot at).
Might one not ask, as the dissenting justices in effect did, what this has to do with offenses that have no connection to military service and that, if tried in civilian court, would entail the Charter right to trial by jury?

Spoofing @ DEVGRU?

A member of the Navy's SEAL Team 6 is facing charges of "spoofing." Details here, thanks to Navy Times.

The specific language of the charges seems not to have been made public, but, judging by this story from the Virginian-Pilot, they include a novel "unlisted" offense under Article 134, UCMJ (à la United States v. Sadinsky):
[Defense counsel Michael] Waddington said the case should be dismissed, in part, because he believes the Navy effectively made up charges that aren't specified in the Uniform Code of Military Justice, such as "impersonating a person" and "requesting nude photographs under false pretenses." Each of the specifications Howard has been charged with are under General Article 134, which covers "all conduct of a nature to bring discredit upon the armed forces."

Friday, July 26, 2019

SCC decides Stillman, Beaudry cases

By a 5-2 vote, the Supreme Court of Canada today decided Stillman v. H.M. The Queen, No. 37701, and related cases under the Code of Service Discipline. From the summary by the court's communications staff:
The majority at the Supreme Court said military members could be tried for civilian crimes without juries. The Constitution gives Parliament power over the military. This includes the power to pass a law saying that civilian crimes committed by military members are service offences. This makes them offences under military law. The majority noted that when a military member commits a civilian crime (even in a non-military setting), that has an impact on discipline, efficiency, and morale. Because of all this, the majority concluded that when a military member is charged with a civilian crime, the military exception under section 11(f) of the Charter applies. That means there is no right to be tried by a jury.
Justices Moldaver and Brown jointly wrote for the majority; Justices Karakatsanis and Rowe had a joint dissent.

A special ops crisis?

"Congress needs to hold immediate hearings with special operations commanders to uncover whether there is a pervasive problem of rule-flouting and lack of accountability; to examine the rules of engagement; and to explore remedial measures. Congress should also appoint an independent commission to study the legal, ethical, moral and criminal problems possibly plaguing the special operations forces communities, and to recommend reforms."

From this USA Today column by Prof. Geoffrey Corn and Global Military Justice Reform contributors Butch Bracknell and Prof. Rachel VanLandingham.

Watch this space.

Thursday, July 25, 2019

Finis for "The Code"

The CBS television military justice series will not go on. As Task & Purpose observes, there were vexing accuracy issues:
But based on the critical response of military and veterans observers, The Code focused more on how to inaccurately portray service members than the intricacies of the military justice system. Indeed, the series' pilot episode focused on the court-martial of a Navy O-5 who, inexplicably, appeared in the uniform of an O-3.

Among the other problems:
  • Non-regulation haircuts
  • Erroneous uniforms
  • Excessive rank observation
  • Protocol violations
  • Calling Marines soldiers.
Sir, yessir

Wednesday, July 24, 2019

Why is this case going to a military court? (one in a long series from Lebanon)

Lebanon is at it again, this time referring a case involving the murder of two aides to a cabinet member to the country's military court. Details (confusing one) can be found here. There is no suggestion in the report that the perpetrators were members of the armed forces.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Tuesday, July 23, 2019

Nepotism alleged, denied in Cambodia's military court

Is there nepotism in the Military Court of Cambodia? According to this report, the place is populated by relatives of the chief judge, a lieutenant general. They include his wife, three sons, and two cousins. "The Law on Organisation and Activities of Courts says the military court only has jurisdiction over military crimes committed by military personnel. If a member of the army commits a 'civilian' crime like robbery or assault, they are to be tried by civilian court."

The slows continue in India

India's Armed Forces Tribunal has a backlog of 16,000 cases. Three of the court's benches are functioning. Details here. Excerpt:
In September 2016, the Armed Forces Tribunal Bar Association had filed a complaint with the then Chief Justice of India demanding immediate appointment of judicial members for swift disposal of cases. 
The Supreme Court had took cognizance of the case and admitted it as a Public Interest Litigation. 
However, the apex court is yet to deliver a final verdict in the case. The last time hearing was ever conducted in the matter was more than a year ago on February 23, 2018.

Saturday, July 20, 2019

What's doing (or not) in Canada

Jesse Ferreras and Abigail Bimman have written this review of current Canadian military justice developments. It may quite a while before recent reforms take effect because implementing regulations are required.