Saturday, August 31, 2019

Dreyfus film by Roman Polanski

Capt. Alfred Dreyfus
Owen Gleiberman has this Variety review of "J'Accuse (An Officer and a Spy)," Roman Polanski's new film about the Dreyfus Affair. Excerpt:
[Alfred] Dreyfus, played in the movie by Louis Garrel with the intensity of a stoic bird (in his pince-nez, he looks like a feral-geek James Joyce as played by Steven Soderbergh), is an honorable soul who gets slandered, unfairly convicted, and becomes a martyr. His time on Devil’s Island, which we see all too briefly, is a hellish exile for him, and the whole dramatic momentum of the movie is: How will his persecution end? Can this injustice be overturned? 

Why is this case in a military court?

The Cameroon Court of Appeal in Yaoundé has rejected a challenge to the jurisdiction of a military court over civilians. Details here. Former minister Maurice Kamto is charged with hostility to the fatherland.

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

Friday, August 30, 2019

Trend lines in Australia

Sally Whyte, writing in the Canberra Times, reports on trends in Australian military justice:
Transgressions by members of the Defence force are increasingly being sanctioned administratively instead of through the Defence Force Discipline Act, as survey results show members have little confidence in the system.

Administrative sanctions against members for offences like misuse of alcohol, civil offences, failing a fitness test and unsatisfactory conduct rose by 13 per cent between 2016-17 and 2017-18, while trials and convictions through the court martials [ouch], defence force magistrate trials and summary trials dropped 8 per cent.
The 2017-18 annual report of the ADF Inspector General can be found here.

Labor Day Weekend

Thursday, August 29, 2019

Not Military Justice but an interesting observation by the Supreme Court of India on the scope of judicial review over War Records

The Supreme Court of India has rendered a decision stating therein that the Armed Forces Tribunal cannot go into issues that do not involve civil consequences.

The Petitioner before the Armed Forces Tribunal, a decorated Brigadier, had challenged the Annual Confidential Report (Appraisal Report) by his senior just prior to the limited Indo-Pak conflict which is also known as the Kargil War of 1999 (Operation Vijay). He had also challenged the incorrect record (as per him) being maintained in the War Reports dealing with the Kargil War which in his perception did not appreciate his battle performance properly.

The AFT had allowed the Brigadier’s plea and had quashed the said Appraisal Report and had also directed the Government to correct the “After-Action” Report.

While stating that the issue of the Appraisal Reports did involve civil consequences and hence was cognizable by the AFT, the SC in a short order on an appeal filed by the Union of India has held that the matter of correcting the war record was not amenable to the jurisdiction of the Tribunal. The following are the observations of the Apex Court on the issue:
“...We find the issue raised is more to take credit by the Officers engaged in Operation Vijay. The reports do not have any civil consequences, therefore, are not subject to judicial review by the Tribunal or the Courts. The order having civil consequences has already been set aside and not appealed by the appellants. Therefore, maintenance of records for future strategic studies is not open to challenge in exercise of power of judicial review...The Tribunal or the Court is not the authority to appreciate the historical facts as it is for the experts and Officers in the Armed Forces to record such facts in terms of the procedure established by them. Court neither has the expertise nor has the jurisdiction to sit over the reports furnished by the Officers in respect of credit to the Officers involved in Operation Vijay...”
The complete opinion of the Supreme Court can be accessed here.

West Bank courts

The Jerusalem Post has this review of a new book about Israeli military courts in the West Bank. The book is by Yonah Jeremy Bob, and is titled "Justice in the West Bank? The Israeli-Palestinian Conflict Goes to Court." The author, a lawyer who served in the IDF legal division, is the newspaper's intelligence, terrorism and legal analyst. 

Wednesday, August 28, 2019

For your military justice bookshelf

Now available from LexisNexis: the mammoth (1147-page) fifth edition of Military Court Rules of the United States: Procedure, Citation, Professional Responsibility, Civility, and Judicial Conduct (Franklin D. Rosenblatt & Eugene R. Fidell eds. 2019). The book includes introductory notes by well-known experts in the field. The preface is by Dwight H. Sullivan.

Blog contributor in the spotlight

Prof. Stephen I. Vladeck
University of Texas
Law School
Global Military Justice Reform contributor Prof. Steve Vladeck (Texas) is spotlighted in the National Law Journal's August 28, 2019 Supreme Court Brief. It's currently behind the paywall but should be available for free in the next few days.

Civil-military relations in South Africa

Lieutenant General Vusumuzi Masondo, the SANDF’s Chief of Staff, explained that the Military Justice System “is there to support the commanders,” but lamented the challenges faced by the SANDF with respect to the ultimate oversight of civilian courts and the presence of trade unions within the SANDF. “A military institution is by its nature an autocratic institution,” Masondo explained, “Because otherwise, if it was not for that, it would not be able to discharge its mandate.”

From this report on DefenceWeb

Conscientious objection in Colombia

Relying on a ruling of the Constitutional Court, an administrative court in Colombia has ordered the release of a soldier who is a Jehovah's Witness, on grounds of conscientious objection. The administrative court's decision can be found here.

Tuesday, August 27, 2019

Abdication in the Air Force

    Justice has nothing to do with what goes on in a courtroom;

                 Justice is what comes out of a courtroom
                                  ~~ Clarence Darrow

Those of use who began practicing military law last century, have seen many changes–some for the better, many for the worse. For example, most good criminal litigators treated complainants politely in order to avoid alienating the fact-finder. There were of course, the stupid ones who, for whatever reasons, bullied witnesses, embarrassed complainants, etc., which in turn stimulated the "victims’ rights" movement. That was not a bad thing in most litigators’ minds, because very little changed. But . . . .

That movement got out-of-hand in the military when some–no doubt well-meaning–overzealous advocates decided to convince Congress to amend the Uniform Code of Military Justice [UCMJ], by eliminating the two-sided adversarial system in use by the common law countries for centuries. By adding another set of lawyers, the Special Victims Counsel [SVC], the process literally turned into the proverbial 3-ring circus. Morphing from simply advising alleged victims of their legal rights and remedies, the SVC’s began objecting–on the record–in open court; filing motions in limine or to quash supoenas; or to interrupt a court-martial by "seeking a writ" when they disagreed with a Military Judge’s ruling. Sometimes, the SVC’s would team up with trial counsel and literally "double-team" the defense; other times, the government may take no position on, e.g., a defense discovery request, only to find the SVC strenuously objecting to protect "their client’s" privacy rights. It was only a matter of time before these three worlds–prosecution, defense, and SVC’s–would collide.

And collide they did in a colossal blast last week at Patrick Air Force Base [AFB], Florida, in yet another strange case involving allegations of sexual assault. It was not, to put it mildly, a good day for the Air Force JAG Corps. The Military Judge began his written opinion as follows:

The Defense filed a motion to dismiss the charges against the accused based on the government’s failure to provide timely and adequate discovery. The Government and Special Victims’ Counsel (SVC) filed a response in opposition.
It went downhill from there.

South Sudan war crimes court-martial

Flora McCrone has written War Crimes and Punishment: The Terrain Compound Attack and Military Accountability in South Sudan, 2016-2018 (Aug. 2019), published by the Small Arms Survey. Excerpt (footnotes omitted):

The Terrain court martial proceedings

The first court hearing for the Terrain case began in May 2017 shortly after [Paul] Malong’s dismissal and the appointment of the new CDF, James Ajongo.

The question remained as to whether to hold the trial in a civilian court or under the SPLA GCM Unit, with legal and practical issues affecting both sides of the argument. In theory, under the SPLA Act, charges against SPLA soldiers accused of crimes against civilians should be tried in a civilian court (Southern Sudan, 2009). The Kiir-appointed Investigation Committee recommended, however, that the trial should take place within the SPLA court-martial system. Interviewees posed the following factors as having influenced this decision:
  • Special tribunals can circumvent some of the protocol and procedures normally required in civilian courts, because such tribunals deal with ‘special’ or extraordinary circumstances. In this case, at the outset there was only one claimant, the Terrain general manager, who at the start of the court martial had to represent both Terrain Services Ltd and the victims of the attack, because the victims had no claimant of their own in the country. Normally, all claimants need to be physically present in the country for a trial to go ahead, but designating the Terrain court martial as a special tribunal could override this rule.
  • The attack took place in a context of war and military operations.
  • The attack featured both military crimes under the SPLA Act (Southern Sudan, 2009) and criminal crimes under the Penal Code (Southern Sudan, 2008). 
  • The court martial system was seen as being better resourced and more efficient than the civilian courts. 
In the Terrain court-martial both the SPLA Act (military law) and the Penal Code (criminal law) were applicable. Five members were appointed to the judging panel, including two judge advocates and three SPLA officers. The SPLA leadership selected Gen. Moulana Knight, a military lawyer, as head of the judging panel. Leading the prosecution’s team was an SPLA chief prosecutor and a private lawyer who represented the Terrain owners and, by default, the victims of the attack. (A private lawyer representing some of the attack victims joined the proceedings later when the first rape victim came to testify in August 2017.) An SPLA-appointed lawyer led the defence team and was supported by three additional lawyers.

Sunday, August 25, 2019

Scholars of extremism and law enforcement officials have long warned about the risks of white nationalists serving in the armed forces

Christopher Mathias, After HuffPost Investigation, 4 White Nationalists Out of U.S. Military--But Others Allowed to Remain. HuffPost, 7 August 2019.
In March and April, HuffPost published two reports identifying 11 servicemen who belonged to Identity Evropa, the white nationalist group best known for helping organize the deadly 2017 “Unite the Right” white supremacist rally in Charlottesville, Virginia.
In a separate report in May, HuffPost confirmed that the Army was investigating a 12th soldier for his alleged ties to the Atomwaffen Division, a neo-Nazi terror group that has been connected to five murders in the U.S. over the past two years.
The danger of white nationalist terror was brought into devastating focus this week after a gunman who reportedly held white nationalist views massacred 22 people in a Walmart in El Paso, Texas. The man arrested in that attack does not appear to have any connections to the U.S. military. However, the serviceman with possible connections to the Atomwaffen Division is still stationed at Fort Bliss in El Paso, and is among the four who the Army has determined are still fit to serve.
Here is a link to Military Personnel and Extremism: Law, Policy, and
Considerations for Congress by K. N. Kamarck, Congressional Research Service.

Here is a link to the NBC News piece, Inside the U.S. military's battle with white supremacy and far-right extremism, from May 2019.

Here is a link to WHY CAN'T THE MILITARY ROOT OUT FAR-RIGHT EXTREMISM IN ITS OWN RANKS? From Pacific Standard, April 2019. (Note, the Navy added Article 1167, U.S. Navy Regulations that included a prohibition against participating in any organization that "espouses extremist causes," in 1997.

Here is a link to DOES THE AMERICAN MILITARY HAVE A PROBLEM WITH FAR-RIGHT EXTREMISM? From Pacific Standard, by C. Jones, March 2019.

Here is a link to S. G. Jones, The Rise of Far-Right Extremism in the United States, a Report from the Center for Strategic & International Studies, Nov. 2018.

Friday, August 23, 2019

The ball is clearly in the parliamentary domain

The Canadian political class appears to be detached from the military law scene. They appear to be unconcerned and uninterested in the design, control and management of the military justice system and unperturbed  by the systemic weaknesses as reported in the 2018  Report by the Auditor General of Canada titled "Administration of Justice in the Canadian Armed Forces." i

As an aside, members of the House of Commons serving on the  parliamentary committee overseeing defence and military issues, namely the Standing Committee on National Defence [SCOND], are seldom part of that committee long enough to develop an expertise in this subject. As a result, individually and collectively these committee members are almost always somewhere in the early stage of long and steep learning curve and are not having the opportunity to acquire and develop a good understanding of  the broad defence and military matters, including the more complex military justice issues. 

This means that defence and military officials appearing before SCOND are seldom, if ever, truly challenged, when presenting say, proposed legislative changes to their governing statute. The end result is that the senior leadership of the Canadian Armed Forces (CAF) - and this includes the Office of the Judge Advocate General (JAG) - have a sort of a free pass to successfully propose or oppose almost any legislative change. They are also seldom challenged by a parliamentarian advancing the need for reform to the outdated Canadian military justice system. Any such call for reform normally originates outside the Parliamentary Precinct by members of the military bar. The end result: the status quo reigns!

This state of affairs is aided in no small way, by the simultaneous absence of a public debate on the military justice system.  Institutions such as the Canadian Bar Association, the Canadian Civil Liberties Association or the Criminal Lawyers’ Association, to name but three, seldom take position or intervene in military justice issues when such matter is discussed before a parliamentary committee or being brought up in national media. Also, they rarely intervene when such critical matters are being considered by the Court; a case in point, in the recent Supreme Court decision of R. v. Stillman , SCC 40 the lawyers for both parties who were all members of the Regular Force not only dominated the debate, they were alone at the lectern.  

What was at issue in Stillman was  the exemption  of military law from the constitutional right to a jury trial in criminal trials for the most serious offences. This means that following enrolment in Her Majesty's armed forces, Canadians are treated  to a different set of rules and laws. Disappointingly, however, no one spoke for the hundreds and hundreds of thousands of Canadians who, in the many decades ahead, could be enrolled in the CAF.  Whether the loss of such a constitutional right could be seen as a form of inhibition to the motivation and willingness of volunteers for military service and the pull for patriotism ought to be a vital consideration for any democracy.  Therefore, the views, concerns and aspirations of the Canadian citizenry including soldiers-in-waiting and its long-term impact on the CAF volunteer force structure could  have acted as a ‘countrepoids’ to the constricted pleadings, in scope and quality, presented by the CAF lawyers. 

As importantly, however, Canada’s Minister of Justice  was also ‘absent' during these proceedings. Yet, section 4 of the Department of Justice Act gives the Minister responsibility for:
the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces and to advise the Crown on all matters of law referred to the Minister by the Crown.” [My emphasis.]
The Minister’s absence is in keeping to its usual passiveness and non-involvement in military affairs. It is almost as if there were a line of demarcation between laws intended for civil society and laws enacted for the military. This is almost as if the military was being granted a sort of independence of decision and actions within a wide and widening sphere of competence.  Yet, the Minister of Justice has the statutory duty to exercise the “superintendance of all matters connected with the administration of justice in Canada”. It is hard to see how the Minister of Justice actually exercised his superintendent role over military justice by being totally silent on the issue.

In my respectful opinion, it is the duty of the Legislature - particularly in peacetime - and, in particular, the Minister of Justice to be vigilant and not cede control of our armed forces to the military, allowing it to operate in a vacuum and in accordance with their own ethos and concepts. Former French Prime Minister Georges Clemenceau once famously quipped: “War is too important a matter to be left to the military.” Perhaps there is a conventional wisdom to this statement, and military justice, accordingly, is also too important a matter to be left to the military.

Such an attitude was reflected upon by Brigadier-General W.J. Lawson in 1951, as the then Judge Advocate General for the Canadian Forces when the National Defence Act [NDA] came into force. He wrote in the Canadian Bar Review: “It is important that lawyers practicing in this field should appreciate that military law is not, as many seem to think, a code of law separate and apart from the ordinary law. It is an integral part of law of the land based on the same fundamental principles of justice and giving the same protection to an accused as our civil law.” [My emphasis.]

The time has come for the Canadian Parliament under the guiding hand of the Minister of Justice to address and redress the current deficiencies  embedded into the National Defence Act.

Nashiri fallout

A gutsy Navy lawyer who called it right in the Nashiri judicial ethics debacle has been passed over for promotion to lieutenant commander. Carol Rosenberg has the story here. Excerpt:
“I doubt there is another lieutenant in the entire Navy who has demonstrated the courage to do what he did,” said Capt. Brian L. Mizer, who joined the Nashiri case as a senior litigator after Lieutenant [Alaric A.] Piette had represented Mr. [Abd Al-Rahim Hussein Muhammed al-]Nashiri alone for seven months.

Captain Mizer, a career criminal defense lawyer, called the Navy decision not to promote the lieutenant “retaliation” for “standing in the way — as he was ethically and legally required to do.”
Disclosure: the editor filed an amicus brief for the Ethics Bureau at Yale [EBaY] in the D.C. Circuit mandamus case.

Thursday, August 22, 2019

A fuzzy picture in Mozambique

Mozambique got rid of peacetime courts-martial some time ago. Apparently there was a scare that they might be reintroduced, according to this report. For the time being, offenses by military personnel are being tried in the regular courts.

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.