Game over in Pakistan?

The latest extension of Pakistan's military courts' power to try civilians hax expired, according to this account. Will they be revived?

You never know

Unnatural acts are not a crime, a Lebanese military court has ruled. Details here.

By the numbers

If you really want to know, this is Global Military Justice Reform's 4800th post, with over 650,000 hits and 646 comments from 185 jurisdictions. Pas mal!

Thanks to everyone for getting us to this point: readers, contributors, commenters. Keep it up and tell your friends. 

The commander in chief steps in

President Donald J. Trump

Bowing to pressure from congressional Republicans, President Donald J. Trump has ordered that a Navy SEAL facing a murder charge be moved to less restrictive pretrial confinement, American Military News reports.

Presidential involvement in such matters is highly unusual. In 1971, President Richard M. Nixon famously ordered First Lieutenant William L. Calley Jr. moved from the Ft. Benning stockade to house arrest. Calley had been convicted a few days earlier of the murder of Vietnamese civilians. Trial counsel Captain Aubrey M. Daniel III protested.

Mother Jones reminds us here of another current case of presidential interest in a court-martial.

Don't ask and they won't tell

Military Times reports that the U.S. armed forces often don't ask sex offense victims if they want their cases pursued in court. Excerpt:

Investigators reviewed 82 cases at the Army’s Fort Hood, Naval Station Norfolk, the Air Force’s Joint Base San Antonio and Marine Corps Base Camp Pendleton, which recorded the highest number of unrestricted sexual assault reports in fiscal 2016.

Nearly all of those cases involved officials failing to ask the victims or document if they would prefer their assailant tried by court-martial or in the civilian criminal justice system, something they are supposed to have been doing since the 2015 National Defense Authorization Act, according to the IG.

Is resistance mounting to another extension in Pakistan?

The Business Recorder is reporting here that opposition parties in Pakistan are opposing another extension of the power of military courts to try civilians. Excerpt:

The major opposition political parties-Pakistan People's Party (PPP), Pakistan Muslim League-Nawaz (PML-N), and Jamiat Ulema-e-Islam-Fazal (JUI-F)-have decided not to support the government in extending the term of military courts.

Talking to Business Recorder, PPP Secretary General Farhatullah Babar said that the party would not support the government on the issue of extension of military courts, as there is no longer any need for these courts after the sharp decline in terror incidents.

"The incidents of terrorism have declined and, therefore, there is no justification for any further extension," he said.

Babar stated that the military courts were twice given an extension adding if terror incidents can not be controlled in four years, then the military courts would not be able to overcome the issue even in 40 years.

He added, 'military courts are a parallel judicial system and we must end it. There is a need to improve civilian judicial system through legislation. The government should take steps to improve the judicial system and the PPP party can support any legislation for this purpose," he said.

Le test ultime des limites de la justice militaire débute en Cour suprême

Le 27 mars 2019. Un éditorial publié par le journal montréalais 45e Nord note que le test ultime des limites de la justice militaire débute en Cour suprême alors que le plus haut tribunal du Canada se penche dans l'affaire R c. Beaudry sur la question de savoir si la justice militaire a bien le pouvoir, d'un point de vue constitutionnel, de juge des propres membres pour des crimes graves tels que des agressions sexuelles et des meurtres:

La décision de la Cour suprême qui a commencé à entendre l’affaire sur le fond aujourd’hui aura un profond impact et pourrait ébranler tout l’édifice de la justice militaire canadienne. 

Qu’il y ait des tribunaux disciplinaires, comme c’est le cas dans d’autres professions (médecins, avocats, etc) ne pose pas de problème, mais, dans le cas de crimes majeurs où toute la société est interpellée, cela est très différent aux yeux de ceux et celles qui militent pour qu’ils soient jugés dans le système civil.

Tout en reconnaissant que les Forces armées doivent avoir la capacité de faire respecter l’ordre et la discipline. En entrevue à 45eNord.ca, Me Drapeau, revenant tout juste de l’audience de la Cour suprême aujourd’hui, insiste quant à lui pour dire que cette affaire dépasse largement le cadre des Forces armées canadiennes et que le déficit de transparence et l’apparence de partialité du système de justice militaire n’est pas que préjudiciable à l’accusé, mais également à la victime, parfois une victime civile qui se retrouve dans un milieu qui lui est étranger et qu’elle perçoit comme hostile.

Pour l’instant, tous, juristes, militaires, victimes et justiciables sont suspendus à la décision du plus haut tribunal du pays dans cette affaire, décision qu’on devrait vraisemblablement connaître à l’automne 2019 ou un peu avant.

An inconclusive hearing in Ottawa -- or at least one that's tough to handicap

The CBC's Murray Brewster has this after-action report on today's Supreme Court of Canada hearing in the Beaudry and Stillman cases. Excerpt:

Rory Fowler, a retired lieutenant-colonel and former military lawyer now in private practice, said he's not willing to speculate on which way the court will jump. Either way, he said, it could have a profound impact on the military.

The most far-reaching decision the Supreme Court could make, he said, would be to side with the appeals court and end the military's power to pursue serious offences through courts martial and summary trials.

"That means they don't get to prosecute sexual assault," said Fowler. "They don't get to prosecute assault. They don't get to prosecute assault causing bodily harm. They don't get to prosecute a great many Criminal Code offences because a great many Criminal Code offences have punishments of five years or more."

Whither Martha McSally?

"And then, the woman who said she was raped by the system said that the same system should continue to handle cases such as hers. She said that she was opposed to Senate legislation to take the prosecution of sexual assault cases out of the hands of the military chain of command, endangering the bill’s prospects and confounding other sexual assault victims."

From this New York Times article about Sen. Martha E. McSally (R-AZ). 

Beaudry and Stillman hearing to be webcast

The Supreme Court of Canada will be offering a live webcast of this morning's hearing in the Beaudry and Stillman cases. Click here. The cases are set for 9:30 a.m.

Did Congress overlook military magistrates when requiring minimum terms of judicial office?

Minimum terms have not been required for military magistrates in the United States, even though they now can in some circumstances decide pre-referral issues, try misdemeanor-level cases with the consent of the accused, and hold individuals in contempt. See R.C.M. 502(c)(3); arts. 19(c), 26a, 30a(c), 48(a)(2)(C), UCMJ. Given these powers, should military magistrates have the protection of minimum terms, as Congress has required for military trial and appellate judges?

In contrast, 28 U.S.C. § 631, which governs federal magistrate judges, provides:

(e) The appointment of any individual as a full-time magistrate judge shall be for a term of eight years, and the appointment of any individuals [sic] as a part-time magistrate judge shall be for a term of four years . . . .

Comments welcome. Real names only, please.

What to wear when going to civilian court

Hon. Daniel J. Hill

In 2010, Oregon Circuit Judge Daniel J. Hill (at the time, a colonel in the state's National Guard, now a brigadier general) wrote this interesting National Judicial College essay on Military Personnel Wearing Uniforms in Civilian Court -- The Judges Conundrum. 

Beaudry & Stillman cases to be argued at SCC

Tomorrow the Supreme Court of Canada will hear argument in the Beaudry and Stillman cases. At issue is whether courts-martial for civilian offenses that would otherwise be tried to a jury violate the Charter right to trial by jury.

Preston Lim has this curtain-raiser on Just Security. His bottom line:

A separate military justice system has an important role to play in keeping the Canadian Armed Forces an agile and responsive organization. But just as the Canadian military will need to continually adapt to 21st century standards, so too will Canada’s military justice system. An affirmation by the Supreme Court of the Appeal Court’s holding will not weaken, but rather strengthen, Canada’s military.

A senator bats .500

Responding to Sen. Martha E. McSally, former naval aviator Paula Coughlin writes here in Military Times:

We should use training and encouragement to prosecute, McSally said, “and if the commander is the problem or fails in his or her duties, [he or she] must be removed and held harshly accountable.”

Unfortunately, history shows us that the expectation that commanders will execute an impartial and fair interpretation of justice is unfounded. Commanders should, but are not required, to rely on proven tools: investigative experts, victim advocacy experts and prosecutorial experts for an informed, just outcome.

Empowering military prosecutors to lead the process and decide whether to prosecute cases, or if necessary, turn over cases to the relevant civilian justice systems, is the answer.

After years of painful silence, McSally bravely has taken steps to fix a broken justice system by disclosing her horrible rape and revictimization by her command.

What if there had been no fear of retribution and her command had forwarded her complaint to trained investigators, prosecutors and victim advocate lawyers without bias or command influence? This is the next step to make our armed services mission ready: Reform the Uniform Code of Military Justice and reverse the trends of a rape culture that is destroying our military.

Editor's comment: the issue surrounding who should make disposition decisions -- commanders (18th century) or lawyers outside the chain of command (21st century) -- is not confined to sex offenses. It is a structural issue that, while currently generating the most controversy in the context of sex offenses, exists across the board for a serious offenses under the UCMJ. The only real issue is where to draw the line in defining what offenses are minor and can remain in commanders' hands. The Manual for Courts-Martial (2019 ed.) uses one year's confinement as the guideline for defining minor offenses for purposes of the administration of non-judicial punishment (Art. 15).

A strange outcome in Spain

A whistleblower succeeds in overturning her discharge from the Spanish Guardia Civil . . . but a senior officer she accused of abuse of authority is promoted to brigadier general. Details here (en español).

An anniversary

On this day, George III approved the 1774 Articles of War. The 1774 Articles were the model for the 1775 American Articles of War. The command-centric concept behind the 1774 Articles unfortunately continues to cast a long (and, at this late date, indefensible) shadow over American military justice. The United States clings to this British legal tradition even though the Mother Country abandoned it years ago.

Confraternities ban in the Nigerian Army

The following notice is from the Nigerian Army:

The attention of Headquarters 4 Brigade Nigerian Army has been drawn to a media publication dated 23 March, 2019.

In the said publication, it was alleged that Private Igbavbou Lucky and not Private Opiri Stephen as erroneously published was alleged to have been arrested and paraded by the State Police Command for cultist activities.

For emphasis, Nigerian Army (NA) is a professional organization with extant policies that regulates the conduct of its personnel. The NA does not allow any of its personnel to belong to any confraternity such as cult groups and related associations. Consequently, any of its personnel who crosses the red line in this regard will face the full rigours of military discipline.

The alleged case of Private Igbavbou Lucky who was arrested is an isolated case. Additionally, it is germane to state that preliminary investigation revealed that the said suspect is not a personnel of 4 Brigade Nigerian Army as erroneously stated in the said publication but a deserter from 101 SF Bn in the North East of the country since January 2019.

Thus, his conduct is a complete negation of the minimum behavioural conduct expected from a personnel of the Nigerian Army. I also wish to use this medium to appeal to journalists to verify their stories before publication in order to avoid negative reportage capable of bringing the image of the Brigade or the NA into disrepute.

The general public should be rest assured that the case will be thoroughly investigated and the military justice system will take it course.

Mohammed Maidawa
Captain
Assistant Director
Army Public Relations

"The Code" -- coming soon to a television near you

Broadway World reports here on the first episode of the new CBS Television series "The Code," about U.S. Marine Corps military justice. Excerpt:

Operating out of Judge Advocate General Headquarters in Quantico, Captain John "Abe" Abraham is a driven prosecutor for whom becoming a Marine is a longstanding family tradition and a responsibility he treats with devotion and passion. His colleague and friend, Captain Maya Dobbins, is the fearless lead defense attorney who is never hesitant to go up against one of her own, but is also a team player if it means finding the truth. Major Trey Ferry is Abe's eloquent and wise superior officer working for the prosecution who pursues suspects with ferocity.

Three questions in Pakistan

The [Supreme Court of Pakistan] can adjudicate, sooner rather than later, the defence ministry’s appeal against the [Peshawar High Court] judgment, to determine whether military courts are dispensing justice or revenge based on suspicion. But will it? Our parliament can engage in a meaningful debate about extension of military courts, by summoning from the defence ministry record of trials conducted by military courts so far and determining through application of mind whether the process in place meets basic standards of fairness. But will it? As for the executive, let’s not even ask what it can do and if it will do it.

Babar Sattar, writing here in The News International

Accountability in Eswatini

The defence force in Eswatini (Swaziland) has been ordered to pay damages to a civilian tortured by troops who suspected him of stealing an Army vehicle. The victim was eventually rescued by the police. This article notes a series of other cases in which the country's troops have abused civilians. The question is whether anyone in the defence force has been prosecuted in either civilian court or a court-martial for this kind of misconduct.

How long does it take to file a record of trial?

Ask the Peshawar High Court, which has been stiffed in seeking the records of 90 military trials of civilians? Details here. The government has already had six months to produce the records, and the High Court has just given it another two months, after which it will decide the cases.

What's it like to be a military judge?

A Day in the Life of a Military Judge, by Col. Linda Strite Murnane, USAF (Ret), was published last year by the National Judicial College.

Congress should put court-martial appeals to the Supreme Court on an equal footing with other criminal cases

Today's online New York Times has this op-ed by Global Military Justice Reform contributor Prof. Steve Vladeck and the Editor.

Juridictions militaires, la France et ses voisins

En décembre 2000, le Sénat de la France publie les résultats de son étude « La Justice Militaire" qui fait l'examen de l'organisation des juridictions militaires de la France et ses cinq pays voisins, l'Allemagne, l'Espagne, l'Italie, le Royaume-Uni et la Suisse démontrant un large éventail des relations que la justice militaire peut entretenir avec la justice civile.  

1.            L'Allemagne a, comme la France, supprimé la justice militaire en temps de paix ;

• ALLEMAGNE. En temps de paix, les auteurs d'infractions pénales militaires sont jugés par les juridictions pénales de droit commun. Les infractions pénales militaires sont décrites par la loi pénale militaire du 24 mai 1974, modifiée par la loi du 26 janvier 1998.

• FRANCE. La Loi 82-261 du 21 juillet 1982 relative à l'instruction et au jugement des infractions en matière militaire et de sûreté de l'État et modifiant les codes de procédure pénale et de justice militaire a supprimé, en temps de paix, les tribunaux permanents des forces armées ainsi que le Haut tribunal permanent des forces armées. En revanche, elle a maintenu, pour le temps de guerre, des juridictions militaires. Depuis l'entrée en vigueur de cette loi, les infractions au code de justice militaire ainsi que les crimes et délits de droit commun commis par les militaires dans l'exécution du service ne relèvent donc plus de la compétence des juridictions militaires, mais de celles des juridictions de droit commun.

2.            À l'opposé, la Suisse dispose d'une justice militaire totalement indépendante de la justice pénale ordinaire, mais qui fonctionne selon les mêmes principes ;

• SUISSE. L'article 30-1 de la Constitution fédérale énonce : " Toute personne dont la cause doit être jugée dans une procédure judiciaire a droit à ce que sa cause soit portée devant un tribunal établi par la loi, compétent, indépendant et impartial. Les tribunaux d'exception sont interdits. " En application de cette disposition constitutionnelle, la justice militaire est organisée par la loi de procédure pénale militaire du 23 mars 1979, qui fixe les règles principales, et par l'ordonnance concernant la justice pénale militaire du 24 octobre 1979, qui précise notamment la compétence matérielle et géographique des différentes juridictions militaires.

3.            Les justices militaires espagnole, italienne et anglaise, sont plus ou moins intégrées à la justice pénale ordinaire.

• ESPAGNE. L'article 117-5 de la Constitution précise que " la loi réglemente l'exercice de la juridiction militaire dans le domaine strictement limité à l'armée et dans le cas d'un état de siège, conformément aux principes de la Constitution. " L'entrée en vigueur de la Constitution a été suivie d'une profonde réforme de la justice militaire, avec l'adoption de quatre lois organiques entre 1985 et 1989. Un nouveau régime disciplinaire des forces armées a ainsi été adopté, de même qu'un nouveau code pénal militaire et un nouveau code de procédure pénale militaire.

• ITALIE. Conformément à l'article 103 de la Constitution, "Les tribunaux militaires, en temps de guerre, exercent la compétence fixée par la loi. En temps de paix, celle-ci se limite aux délits militaires commis par les membres des forces armées. " La justice militaire est organisée par le décret royal n° 1022 du 9 septembre 1941, modifié par la Loi n° 180 du 7 mai 1981. Cette dernière précise que le statut juridique des magistrats militaires est régi par les dispositions en vigueur pour les magistrats ordinaires. La loi de 1981 a également créé la Cour militaire d'appel et attribué les recours en cassation à la Cour de cassation.

• ROYAUME UNI. Chacune des trois forces armées applique son propre code militaire. Ainsi, les militaires de l'armée de terre sont soumis au Army Act 1955, ceux de l'armée de l'air au Air Force Act 1955 et ceux de la marine au Naval Discipline Act 1957. Ces textes contiennent principalement des dispositions pénales. Révisés tous les cinq ans depuis leur adoption, ils sont désignés sous le terme générique de Service Discipline Acts. Le dernier que le Parlement a adopté est le Armed Forces Act 1996, qui a apporté d'importantes modifications aux trois textes précités. Le système de la justice militaire vient d'être réformé avec l'entrée en vigueur le 2 octobre 2000 de l'Armed Forces Discipline Act 2000. 

Accountability in the U.S. Navy -- an unofficial view from a Newport scholar

Capt. Michael Junge, USN

Captain Michael Junge of the Naval War College has a thought-provoking piece in The Strategy Bridge Journal -- Accountability in the U.S. Navy: "So That Others May Learn." Highly recommended discussion of naval casualties and the use (or non-use) of Courts of Inquiry. Views presented are solely his own.

November 13, 2020. - Second International Military Law Conference. Ottawa, Canada

Planning is underway for the quinquennial International Military Law Conference which is scheduled to take place in Ottawa on Friday, November 13, 2020. 

The purpose of the conference is to put forward proposals to improve the military justice system at the penal and administrative levels to  remedy some of the unfairness resulting from actual provisions of the NDA.  

Mark your calendar!

Gambia's WhatsApp mutiny trial endgame (or why military judges are necessary)

Remember the Gambian mutiny case that was supposed to wrap up last Friday? It turns out that the court-martial believes it cannot pass judgment until after the proceedings have been reviewed and approved. According to this Foroyaa account:

The quorum of military officers headed by Colonel Salifu Bojang, on Friday March 15th 2019, held that they cannot pass judgment unless the facts and evidences found during the course of the trial, are confirmed by a convening / confirming authority; that hence the adjournment of the judgement of the ‘WhatsApp’ case till further notice.

When the case was called before a General Court-Martial, MB Abubakr with E R Dougan and Capt. A. Njie, appeared for the state whilst S.K Jobe together with Lt Commander Alieu Sanneh, Capt. Modou Demba, Capt. Kebba Jabbi, Capt. Cham Samateh, and Capt. Babucarr Bah, all represented the accused persons. Judge Advocate, Sainabou Cisse Wadda who distinguished her role in the trial as adviser, summed up her findings and facts on Wednesday March 13th. According to her, she received request from the president of the Military panel that he needs more understanding on the interpretation of Section 110, 111, 112, 113, 114, 115 and 116 of GAF Act. Justice Cisse Wadda, gave a run-down translation of all the Sections named, in order to clarify misunderstanding of the trial head; but that the president still believes that by virtue of Section 113 and others, the panel cannot pass judgment without having its findings or records of proceedings confirmed by a confirming authority; that Section 113(1) of the Gambia Armed Forces Act states: ‘‘where the proceedings of a court-martial are completed, the record of proceedings shall be transmitted to the Confirming and Reviewing Authority for confirmation, and review of the finding, and sentence of the court on that charge;" that Subsection (2) states: “A finding of a Court-Martial shall not affect the keeping of the accused persons in custody, pending the confirmation and review or the operations of Section 115/116; that Section 116 talks about confirmation of findings of the Court-Martial, and Section 115 talks about the respon[se] of the confirming authority not to be read in an open Court. The judge advocate opined that the provisions of Section 110 and 113, do not affect the passing of judgment by the panel; but that the president believed that there is need to have their findings confirmed based on his knowledge of the interpretation of the Sections. Under Section 112, the Confirming and Reviewing Authority, Subsection (1) states: ‘‘There shall, for the purpose of enforcing decision of a court-martial, be a Confirming and Reviewing Authority, who shall have the power to confirm and review the finding and sentence of any court-martial." [Editor's note: text corrected in places to conform with the statute.]

Colonel Salifu explained: “Findings of the Court-Martial shall not be treated as a finding unless it is confirmed. For me, our findings have to be confirmed before we can pass our judgement. We have to send our reports to the confirming authority. This is my understanding of it but you (referring to the judge advocate) are the technician.”

This is judicial non-independence with a vengeance. The court president's position seems grossly mistaken even under an old-style British Army Act-inflected system. This is why countries create military judges.

There is no recompense for deserters!

Le 14 mars 2019, le journal Marocain «LE 360 » publie un article sous le titre «Pas d’indemnités pour les militaires déserteurs » dans lequel il relate le fait que la Cour d’appel du Tribunal administratif de Rabat a annulé un jugement en faveur d’un militaire qui avait été condamné à 3 ans de prison pour désertion. Après avoir intenté une action en justice, le militaire en question avait eut non seulement gain de cause mais il eut même droit à une indemnité.  Dans l’intervalle, il a bénéficié d’une grâce royale après avoir purgé 2 ans et 3 mois.

La Cour d’appel a conclu, cependant, que pour être éligible à une telle indemnité, faut-il que l’administration ou les institutions qui la représentent aient été trouvé  coupables d’erreur ayant causé préjudice à la personne ce qui ne fut pas le cas . Pour cette raison, la Cour d'appel a cassé ce  jugement privant le militaire d'une telle indemnité. 

A case of the slows

Military justice is sometimes praised for its ability to act promptly. Not so in Gambia, where a mutiny trial (called the WhatsApp case) has dragged on since 2017. It apparently came to a close on Friday, but the results are not yet available online. An account of the closing session before findings appears here.

The "Bolsonaro" of Uruguay

The President of Uruguay, Tabare Vasquez, on March 12, 2019, removed General Guido Manini Rios, from his post as commander-in-chief of the Army for criticizing the Judicial branch for denying due process to members of the military who have been tried for human rights violations committed during the military dictatorship in Uruguay between 1973-1985.  General Manini stated that "a member of the military who is under investigation by the Judiciary does not have the guarantees of due process and is convicted on the basis of conjectures or forged evidence.  Manini singled out the case of a 72 year old sergeant who was recently sentenced for an act "that supposedly occurred 40 years ago."

In Uruguay, more than 40 members of the military have been investigated for human rights crimes. Hundreds were arrested and tortured and an estimated 192 people were forcibly disappeared.  Given that the dictatorship ended over 30 years ago, some of the aging members of the military have died in prison, such as General Gregorio Alvarez, the last leader of the Uruguayan military dictatorship who died in 2016 at 91, while serving a prison sentence.

The government characterized General Manini's attitude as incompatible with his post.  Members of the military are not supposed to express political opinions.  Following his dismissal, General Manini granted an interview to a local radio station and announced that he did not rule out the possibility of standing for elections this year, scheduled to occur at the end of October, in order to fight for the reform of military pensions and to fight for justice for the military. General Manini attended the inauguration ceremony of the new Brazilian commander in chief and was photographed with Brazilian President Jair Bolsonaro.  Given his stated intention to get involved in politics, he is now being termed the Uruguayan Bolsonaro.

No US visas for ICC personnel

The Washington Post reports here on a decision by the US to deny visas to ICC personnel looking into actions of US and its allies. Excerpt:

[Secretary of State Mike] Pompeo declined to say how many ICC-related visas have been denied or name any officials affected. But he said the restrictions apply to anyone working for the court who requests or furthers an investigation into acts by the United States or its allies. 

An exemption to the new restrictions can be made for ICC employees traveling on official business to the United Nations in New York.

Here we go again -- this time in Jordan

Jordan is trying a big fake-cigarette-branding case in a hybrid military court. Defense objections to the forum have been overruled. Details here. Excerpt:

In the opening session of the trial into a $200-million fake-brand cigarettes case, broadcast on live television, lawyers on Sunday representing 29 former officials and businessmen, including a former minister, called into question the jurisdiction of the country’s state security court – a military-civil hybrid tribunal normally reserved for terrorism cases and militant acts – to try men for a “customs case” and economic crimes.

After a recess, the court threw out the defence’s claims that the trial was unconstitutional, reiterating that the military tribunal had jurisdiction on a corruption case affecting the country’s national interests.

Human rights norms strongly disfavor the trial of civilians by military courts.

Irish whistleblower case settled

The case instituted in the High Court in Dublin by the Head of Legal Services seeking disclosure of documents has been settled. Some details here.

The Beaudry Case

Osgoode Hall Law School's The Court.ca blog has this report by Jesse Beatson on the Beaudry case, which is to be argued on March 26 at the Supreme Court of Canada. The case presents the question whether the trial of civilian criminal offenses by court-martial impermissibly trenches on the right to trial by jury. The author concludes:

Rather than simply uphold the CMAC’s decision, the SCC could perhaps mandate that courts-martial provide the option of a jury. This jury could be composed of peers in the military, or civilians, or both. This would be a structural innovation that would make Canada an international leader. While addressing the Charter problem, this “solution” would not address other fundamental issues. Arguably, military tribunals are encroaching on the constitutionally valid jurisdiction of superior courts. Besides a division of powers argument, courts-martial prosecutors may lack the independence needed to give victims of sexual assault enough confidence to come forward. A more desirable solution is to remove the jurisdiction to prosecute serious civilian crimes from the NDA [National Defence Act] and return it back to provincial courts, ending the largely failed experiment that began in 1998.

The Latin motto of the CMAC, Nulli Negabimus Justitiam, translates to “we will deny justice to no one.” The CMAC’s landmark Beaudry ruling breathes fresh life into these dusty Latin words. The ball is now in the SCC’s “court.” Soldiers, sailors, and aircrew will soon, one hopes, be able to access a jury trial for allegations of serious crimes as a constitutional right, but what the future of military justice will look like beyond this is still an open question.

(Footnote omitted.)

Whistleblowing in Ireland

The Irish Examiner has this report on an unusual lawsuit brought in the High Court by the Head of Legal Services in connection with his claim of whistleblower status. Excerpt:

A senior army officer's High Court challenge over the State’s refusal to provide him with an independent report into his allegations of corruption and misconduct within the military has opened before the High Court.

The action has been brought by the Defence Forces Head of Legal Services Colonel Jerry Lane against the Minister for Defence, Ireland and the Attorney General.

In opposing the action, the respondents deny any wrongdoing and argue Col Lane is not entitled to any of the reliefs sought.

Opening the case, Col Lane's counsel Roughan Banim SC said the case arises out of concerns raised by his client several years ago that preferential treatment was being afforded to another member of the Defence Forces to the detriment of other members.

Amnesty for genocide?

Tomorrow, March 13, 2019, the Guatemalan Congress will consider an initiative to reform the Law of National Reconciliation that will establish an amnesty for cases involving the internal armed conflict between 1960-1996, which created 200,000 victims and 45,000 disappeared.  The amnesty would erase the criminal proceedings against war criminals.

Since 1999, the State has prosecuted 16 cases of human rights violations in courts, involving genocide, forced disappearance and sexual violations, of which 13 have resulted in the conviction of 42 members of the military and one guerrilla fighter.

Initiative 5377 to amend the Law of National Reconciliation could be applied retroactively which would permit that dozens of persons convicted and imprisoned for serious violations of human rights would be set free within 24 hours.

The Inter-American Court yesterday, in proceedings to review State compliance with a Court's judgment, considered Guatemala's compliance with the Court's 2004 Molina Theissen judgment in the light of this proposed amendment.  The State representative was asked by the President of the Court how this proposed law could be considered in compliance with the State's obligations under the American Convention since it would result in the liberation of the convicted members of the military.  The State representative could not provide a coherent response to the question.

Changes in military justice -- an interview

The Editor was interviewed today on ThinkTech Hawaii, available here on YouTube.

Racial extremism in uniform

Prlof. Juliette Kayyem

Prof. Juliette Kayyem of the Harvard Kennedy School of Government has written this smart column for the Washington Post on racial extremism in the U.S. armed forces. She notes that "the military has reported to Congress that only 18 members, out of 1.3 million serving each year, have been discharged or disciplined for racist activity since 2013."

Just another day for the Rocket Docket

“In solidarity with many activists facing the odds, I will stand by my principles,” she said on Thursday. “I will exhaust every legal remedy available. My legal team continues to challenge the secrecy of these proceedings, and I am prepared to face the consequences of my refusal.”

Chelsea Manning, held in civil contempt for refusing to testify about WikiLeaks before a federal grand jury despite having been granted immunity.

ROK Constitutional Court considers validity of criminalization of sodomy

The Constitutional Court of the Republic of Korea is considering whether the military code provision that criminalizes sodomy is valid. Here is the amicus brief filed by Human Rights Watch. It was prepared by the Washington firm Covington & Burling. HRW's website has this explanation.

Free speech, Art. 88, and the Air National Guard

The Wisconsin Code of Military Justice, which applies to National Guard personnel in "title 32 status," provides:

322.088  Article 88 — Contempt toward officials. Any commissioned officer who uses contemptuous words against the president, the vice-president, members of congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state of Wisconsin shall be punished as a court-martial may direct.

Adam Kinzinger, a Republican Member of Congress who is an officer in the Wisconsin Air National Guard, has been cleared of allegations that he erred in criticizing the state's Democratic governor, Tony Evers, for withdrawing state troops from the US-Mexico border. Details here, thanks to the Milwaukee Journal Sentinel. Excerpt:

Capt. Joe Trovato said Wednesday the guard determined Kinzinger was "not speaking as a commissioned officer, but as a U.S. congressman" when last month he called into question Evers' decision to pull troops away from the U.S. border with Mexico through tweets and an appearance on Fox News.

It's not at all clear that the point is well-taken. Is the suggestion that the tweets and Fox News appearance were protected by the Speech or Debate Clause of the Constitution? (They're not.) Article 88 would certainly seem to apply to public comments such as these (as opposed to dinner-table conversation). Whether Rep. Kinzinger's comments were contemptuous is another matter. For that one would need to see the precise words used. Even more fundamentally, does the Wisconsin Code even apply to National Guard personnel who are not in a duty status? Consider this provision:

322.005  Article 5 — Territorial applicability of this code.
(1)  This code has applicability in all places, provided that either the person subject to this code is in a duty status or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; however, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense. [Emphasis added.]

SASC hearing on sexual assault

C-Span video of today's Senate Armed Services Committee hearing on sexual assault can be found here. Scroll to the lengthy remarks of Sen. Kirsten Gillibrand (D-NY); they are riveting. "I don't think you [the Judge Advocates General] should fight me on this," she said, referring to her proposal to transfer disposition authority for major offenses from commanders to trained military prosecutors outside the chain of command.

Coming to a TV screen near you

CBS will soon be running a new series about military justice, called The Code, according to this item in TV Insider:

The Code, starring TV vet Dana Delany (Body of Proof, Desperate Housewives) will premiere on Tuesday, April 9, following an NCIS lead-in. It will then will move to its regular Monday slot on April 15, after Magnum P.I. completes its season order. The Code is a drama about the military’s brightest minds who take on our country’s toughest legal challenges, inside the courtroom and out. It focuses on the only law firm in the world where every attorney is trained as a prosecutor, a defense lawyer, an investigator — and a Marine.

Why is this case in military court (or any court)?

Here we go again. An Egyptian military court has convicted the former (civilian) national auditor of saying false things about the country's military. Details here.

So much for free speech, and so much for the human rights jurisprudence that strongly disfavors the trial of civilians by military courts.

Compounding a crime?

One can't help but wonder about the disposition of a recent strangling case in South Korea. Task & Purpose has the story here. Was the victim bought off? Were the U.S. government's interests served? Was the strangling a minor offense? Would the disposition have been different if the decision were up to a lawyer independent from the chain of command?

For your bookshelf

Global Military Justice Reform contributor Wg Cdr (ret) Dr. U C Jha has published another book: Ethics in the Indian Military. From the publisher's site:

In today’s tempestuous environment, the issues of indiscipline, corruption and criminality in the armed forces reflect broader issues of military ethics, culture and leadership. A military leader has to motivate his followers to achieve maximum results with minimum friction within the group. The ability to motivate men stems largely from the ability to understand them. It is time for military leaders to do some soul-searching on the components of military ethics. The book argues that the existing legal and policy framework is inadequate to regulate behaviour in the barracks as well as in conflicts. It recommends reforms in the military legal system, incentives, practices and training. This book is for policy makers in the armed forces, military officers, military lawyers, academics, journalists, and those with an interest or professional involvement in the subject.

Congratulations, Wg Cdr Jha! 

New website of interest

Check out the new website Protect Our Military Children. From the home page:

On military installations across the United States and overseas, juvenile-on-juvenile sexual assault goes unprosecuted. Shouldn't military child sexual assault victims, and their families, be protected?

Elsewhere the website reports:

Congress passed legislation in 1970 permitting the relinquishment of federal jurisdiction over military installations to the surrounding states through a process known as retrocession of jurisdiction. However, it left the decision to seek retrocession to the discretion of the Secretary of Defense, who in turn delegated it to the uniformed services (Army, Navy, Air Force).

Unfortunately, the uniformed services have utilized retrocession of exclusive federal jurisdiction over juvenile crimes on military installations only a handful of times (Fort Knox in 1999, Joint Base Lewis-McChord in 2001, Fort Stewart in 2015) despite clear indicators that the non-prosecution of juvenile-on-juvenile sexual assaults is a loathsome trend across the force.

The site is the personal work of U.S. Army JAG Corps Major George R. ("Rob") Lavine III, and includes the usual disclaimer. Maj. Lavine's 2018 Wyoming Law Review article on the subject can be found here.