COVID-19 and military justice (U.S. Court of Appeals for the Armed Forces)

U.S. Court of Appeals
for the Armed Forces
Washington, D.C.

The U.S. Court of Appeals for the Armed Forces yesterday postponed all hearings previously scheduled for April 2020, pending further order of the court. The court's order can be found here.

Martial law unthinkable in Ireland

The range of powers available to the state are considerable, and are sufficient to deal with any difficulties presented by COVID-19. The threats faced by the state are not existential and situations, as dynamic as they are at the moment, will be dealt with using existing powers. The Defence Forces have a long track record of providing an excellent service to the state in difficult times. The call to arms, such as a call for martial law, is not something which can be seriously considered.

From this Irish Legal Times op-ed by Patrick Dunne 

Singapore military decisions

Singapore has generously made available an online copy of 1 Military Court of Appeal Reports 1973-95 (1997). Well done!

COVID-19 and military justice (Military Commissions Trial Judiciary)

On March 23, 2020, Military Commission Judge Col. W. Shane Cohen issued this supplement to his earlier Interim Order--Temporary Extension of Briefing and Litigation Suspense Due to Impacts of
Coronavirus COVID-19.

COVID-19 and military justice (U.S. Navy & U.S. Marine Corps)

The Office of the Judge Advocate General of the Navy has issued this Code 20 Sidebar on COVID and Military Justice Operations. Excerpt:

1. Are our courts “closed” during this time?

Answer: No. However, whether a proceeding will take place (e.g., motions hearing, guilty plea, trial) will be determined on a case-by-case basis by the military judge. After arraignment, it is within the discretion of the military judge whether and when a proceeding will take place.

Circuit Judges have provided information to the Senior Trial Counsel and Defense Counsel within their circuits as to how they can be reached if they are teleworking and how motions and notices can be filed. 

COVID-19 and military justice (Canada)

The following pop-up notice has appeared on the website of the Court Martial Appeal Court of Canada:

Court operations in light of COVID-19

In light of the evolving situation with regard to the spread of COVID-19, public health officials have advised members of the public to restrict their movements as much as possible, including travel to and from work. Court employees, like all employees of the federal government, have been asked to telework where possible and Court managers have been asked to focus their efforts on ensuring continued critical operations.

Until further notice, Registry operations will continue with significantly reduced staff, both in Ottawa and in regional offices. Staff will be available to receive court filings at any of the Court’s registry offices but parties and the public should expect a significantly decreased level of service.

The Court remains available to deal with urgent matters in writing or by teleconference.

All filing deadlines continue to apply. Parties will be able to request an extension of time for deadlines if they are unable to meet the filing deadlines in light of current circumstances but are asked to do so once Court operations return to normal.

The Court will continue to monitor the situation with a view to restoring all Court operations to their full capacity as soon as the circumstances allow.

The Court appreciates the patience and understanding of parties and their counsel at this challenging time.

COVID-19 and military justice (India)

The Chairperson of the Armed Force Tribunal of India has suspended operations of the Principal and Regional Benches through April 15, 2020, due to the pandemic. The Registrar's March 27, 2020 Circular can be found here.

Global Military Justice Reform is hoping to keep track of the effects of the coronavirus on the administration of military justice around the world. If authorities in your jurisdiction have suspended or otherwise adjusted operations in response to the pandemic, please post a link or email the Editor.

COVID-19 and military justice (Israel)

The Israeli cabinet has approved a coronavirus-related regulation that permits urgent military court criminal proceedings to be conducted by technological means, according to this report.

Rwandan case appealed to East African Court of Justice

An interesting Rwandan military case has been appealed to the East African Court of Justice. At issue is, among other things, court-martial jurisdiction over retired military personnel and whether prolonged solitary confinement injurious to health is permissible. The East African has a detailed report by Sam Kiplagat.

The case follows last year's decision of the Court of Appeal of Rwanda in Prosecutor v. Byabagamba, [2019] 4 RLR (July 12, 2019). A later ruling reducing the appellants' sentences has not been released, and a 2014 ruling that had rejected a preliminary challenge to the military court's jurisdiction over retirees is apparently unavailable in English.

Not military justice, but . . .

The Court of Appeal of Ireland has handed down an interesting decision in A.J.K. v. Minister for Defence, [2020] IECA 64 (Aileen Donnelly, J.). At issue was whether a Pakistani citizen lawfully permitted to stay in Ireland could be precluded from enlisting in the Defence Force even if they have no guarantee that they will be permitted to remain in the country through the full term of the enlistment. Excerpt:

In my view, the Minister has constructed an argument and placed upon s. 53 of the 1954 Act an interpretation that it does not bear. The Minister cannot be bound in estoppel by interpretations that his department (whether the civil or military element thereof) have given to this section previously. I simply refer to that to highlight the confusion and lack of clarity as to the meaning of s. 53 by the Department of Defence. The reason for that confusion and lack of clarity is because s. 53 actually provides for a simple requirement that those who are enlisting must sign up to a term of enlistment for a prescribed period of time. Those who are unwilling to sign up to such a period could not be enlisted under the Act. However, those who are willing to sign up and who are otherwise not disqualified by the recruiting regulations made under the Act are entitled to be enlisted. If by operation of law or otherwise, their entitlement to reside in the State ceases, then the applicable rules and regulations concerning rights of residence will come into play. If, through lack of right of residence, and therefore permission to work, or through an act of deportation, they are no longer in a position to serve in the Defence Forces, they will be liable to discharge. Up until that point occurs, they are obliged to render service to the State in accordance with the terms of their enlistment. If the Minister has a genuine concern about persons who have restricted or limited rights of residence he remains free, subject to the statutory provision, set out in s. 53 of the 2015 Act, to amend the enlistment and recruiting regulations.

Irish Legal News has this helpful summary of the litigation by Andrew McKeown BL.

Justice in a time of pandemic

Chief Judge Kevin J. Riordan, Judge Advocate General of the Armed Forces of New Zealand, has issued this guidance memorandum for the conduct of cases before the Court Martial in light of the coronavirus pandemic.

It is an illustration of the many and varied national responses to the crisis.

If you know of other such guidance, please post a link as a comment to this post. Real names only, please, as usual.

New Zealand military justice in WWII

Major-General William George Stevens
© National Portrait Gallery, London
Photo by Walter Stoneman

From the Department of Serendipitous Research, we offer this interesting excerpt from The Problems of 2 NZEF by Major-General William George Stevens:

MILITARY LAW

THIS is not intended to be a treatise on discipline, but only a record of a few points that caused trouble, and which might be avoided in the future. Fundamentally the whole code of military law was intended for a regular army in peace and war. Despite some changes after the experience of the first war, it was still at the beginning of the second unsuitable to a citizen army; and if it was not suitable to a citizen army drawn from the United Kingdom, it was even less suited to a citizen army from the Dominions. It was unfortunate that in peacetime there had never been either the staff or the time to work out a system of military law of our own, keeping all the principles of the British code, but modifying the procedure to New Zealand conditions and the New Zealand temperament.

In the Emergency Regulations creating the Expeditionary Force in January 1940, the force was placed under the governance of the Army Act, with the exception that no sentence of death was to be put into effect without the concurrence of the Governor-General, which meant in practice that the death sentence became null and void. Later in the war, and partly at the suggestion of HQ 2 NZEF, other modifications were made, including the introduction of one or two additional punishments for officers on what may be called an intermediate scale.

Our position in regard to King's Regulations was not so clear, although at first we accepted that we must observe the disciplinary paragraphs; but as the war went on we began to pick and choose, and almost to make our own regulations. Again it would have been better if there had been separate New Zealand regulations of a similar type. Our ideas of what is essential to the discipline (in the broadest sense) of an army differed from those of the United Kingdom – and from this difference, somewhat regrettably, arose a number of unfortunate disagreements with British authorities, especially in that plague spot, Cairo.

The intention of the Army Act and of the Rules of Procedure is, inter alia, to ensure beyond reasonable doubt that an offender PAGE 214gets a fair trial, and with this intent both classics lean over backwards to avoid prejudicing the accused in any way. In fact, they lean so far that they have well nigh emasculated themselves, or, in other words, have succeeded in making it very difficult to punish a genuine offender during the course of a modern war. From the point of view of the British way of life and deeply-ingrained sense of fairness, this is all to the good, as it ensures that an alleged offender remains innocent until proved otherwise; but another result is that those who are responsible for discipline in a war such as the last hesitate before attempting to set the machinery in motion to try an offender by court martial, for the machinery is slow-moving, while the war is the reverse.

Martial law explainer

Two of the greats, Professors Stephen Dycus (Vermont) and William C. Banks (Syracuse), have this excellent martial law explainer in The Atlantic. The online version notes that the essay is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center. After reviewing martial law in American history, they conclude:

. . . Trump’s “wartime president” rhetoric notwithstanding, invocation of martial law would be utterly unjustified and lawless. The coronavirus threatens the health of many citizens, and it may wreck the economy. But civilian government is adapting to the crisis. Courts remain open and operating, with modified procedures. And there has been no hint of insurrection, no widespread lawbreaking or domestic unrest. None of the conditions used to justify martial law in the past are present today or are likely to arise.

Not long ago a top civilian official in the Pentagon declared, “Our goal is not to declare martial law and take control. Our goal is to avoid that at all costs.” His statement reflects our understanding that martial law would threaten not only civil liberties but also democracy itself.

Australian SAS killing in Afghanistan - reflections in a time of crisis

As many of us find ourselves in self isolation as part of our nations’ response to the threat of COVID-19, there is an opportunity to reflect on who we are and what we stand for. 10 days ago, the Australian Broadcasting Corporation published footage of what appears to be the cold-blooded murder of an Afghan civilian by an Australian special forces soldier in Afghanistan. I say civilian, because under the law of armed conflict that is what such a person is if they are not directly participating in hostilities. No doubt that is an issue which will be well canvassed in the months and years to come in the context of this particular case.

This case raises a number of disturbing questions for the armed forces of civilized nations and the governments they serve. Given that this footage seems to have been captured by another soldier’s helmet camera and the events happened almost 8 years ago, how is it that the soldier in question could have been exonerated by the initial military investigation? Why didn’t this footage, apparently indicating a murder, come to light until it was leaked to the media? What steps will the Australian Defence Force (ADF) take now? This is an Australian case, but these are not issues limited to the Australian context. There has been a disturbing tendency among the armed forces of civilized nations participating in difficult, dangerous and often lengthy peacekeeping or stabilization operations to “overlook” incidents of this type. In some circles, “support for the troops” translates into a desire for impunity. It can be seen as embarrassing or even unpatriotic to demand criminal responsibility for such actions, when they are carried out by our otherwise brave and loyal military personnel.

That kind of thinking really misses the point. Why do civilized nations put their military personnel in harm’s way in places like Afghanistan and Iraq? There is of course a large measure of self-interest – the hope that if we defeat the threat “over there”, it will not threaten us “over here”. But we are also there to stand up for (and hopefully propagate) the values that our societies stand for. Values like liberty, human rights and respect for the rule of law. It follows that our personnel must exemplify those values in their conduct on the ground. If they do not, we must ensure that they are held accountable. It is no answer that the “other team” does not respect those values. We are not in a race to the bottom. We are there to demonstrate the values on which our nations stand. If we don’t do that, then are we really any better than the “bad actors”? Quite apart from the inherent danger in such dilution of values for any disciplined fighting force, history is littered with examples of conflicts where mission failure becomes the inevitable outcome of a campaign that lacks (or loses) moral legitimacy in the eyes of the world and – most importantly – the citizens whose taxes fund it.

To end on a more positive note, one of Australia’s former Defence Force Chiefs, Admiral Chris Barrie, has spoken out clearly and publicly on this issue. That is important and suggests an appreciation of the values that I have discussed in this blog. The media might question why those comments are not echoed by the current senior command of the ADF. We do of course need to realise that Australia still has a court martial system which is located within and controlled by the military command. So senior Australian commanders need to be very circumspect while there is an on-going investigation. It is to be hoped that due process will now follow and justice will be done and seen to be done. The world will be watching.

UK bill on limitation of actions

The Overseas Operations (Service Personnel and Veterans) Bill that was recently introduced in Parliament can be found here. It would limit the period in which certain offenses may be prosecuted. Of particular interest are s. 2, which erects a presumption against prosecution for certain offenses after five years, and s. 3, which provides guidance for when offenses more than five years old should be prosecuted:

2 Presumption against prosecution 

The principle referred to in section 1(1) is that it is to be exceptional for a relevant prosecutor making a decision to which that section applies to determine that proceedings should be brought against the person for the offence or, as the case may be, that the proceedings against the person for the offence should be continued.

3 Matters to be given particular weight 

(1) In making a decision to which section 1 applies, a relevant prosecutor must give particular weight to the matters set out in subsection (2) (so far as they tend to reduce the person’s culpability or otherwise tend against prosecution).

(2) Those matters are—

(a) the adverse effect (or likely adverse effect) on the person of the conditions the person was exposed to during deployment on the operations mentioned in section 1(3)(b), including their experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action);

(b) in a case where there has been a relevant previous investigation and no compelling new evidence has become available, the public interest in finality (as regards how the person is to be dealt with) being achieved without undue delay.

(3) In considering the matter in subsection (2)(a), the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.

(4) In subsection (2)(a) “adverse effect”, in relation to a person, means—

(a) an adverse effect on their capacity to make sound judgements or exercise self control, or

(b) any other adverse effect on their mental health, and in this subsection “effect” means an effect at the time of the alleged conduct. 

Aix conference cancelled

This just in from the International Society for Military Law and the Law of War:

Dear Madam,
Dear Sir,

We inform you that due to the COVID-19 situation the University of Aix Marseille has decided to cancel all events until 31 May 2020. To our regret this also means that our conference planned for 12 to 16 May 2020 will not be able to take place.

Due to this situation of force majeur, the conference will be postponed. All registered participants will receive more news from us when the situation will have normalized and the new dates will be chosen.

Participants who will not be able to attend the conference on the new dates and who have already paid their registration fee will receive a voucher which will enable them to attend any future conference of the International Society for Military Law and the Law of War.

We thank you for your confidence and understanding, and we are at your disposal for any questions you may have.

Yours sincerely,

Ludwig Van Der Veken
Secretary-General

Wolff Heintschel von Heinegg
President

UKSC ruling on the ISIS Beatles

Charlie Savage and Adam Goldman report in today's New York Times about a major decision of the UK Supreme Court:

The British government must withhold key evidence from the United States for the trial of two Islamic State detainees because the Trump administration has not provided assurances that the men will not be executed, the British Supreme Court ruled on Wednesday.

The detainees were half of a cell of four ISIS Britons who handled Western hostages — some of whom were eventually beheaded on propaganda videos — and whose victims nicknamed them the Beatles because of their accents. Captured by a Kurdish militia in Syria in early 2018, the detainees, El Shafee Elsheikh and Alexanda Kotey, are being held by the American military in Iraq.

The ruling in a lawsuit was a major setback for senior law-enforcement officials in both countries. The British government had stripped the two men of their citizenship and had agreed to share evidence about them for use in an American trial without assurances that they would not face capital punishment, even though Britain has abolished the death penalty.

The opinions in Elgizouli v. Secretary of State for the Home Dep't, [2020] UKSC 10 are closely reasoned, scholarly, and repeatedly eloquent. Lady Hale's brief opinion helpfully summarizes the court's rulings. Two questions were presented (¶ 3):

(i) it is unlawful at common law for the Government to facilitate the carrying out of the death penalty in a foreign state, not only by deporting or removing a person from the United Kingdom to be tried in that state, but also by providing information which may be used by that state in the trial of a person who is not currently in the United Kingdom; (ii) the decision to provide such information, insofar as it consists of personal data within the meaning of the Data Protection Act 2018 (“the 2018 Act”), was unlawful under Part 3 of that Act.

A majority held that the first question should be answered in the negative, but the court was unanimous that the UK's decision to assist the U.S. violated the 2018 Act. Those interested in the intersection of the common law and human rights law will find this case "must" reading.

Military trials suspended in UK

His Honour Judge Jeff Blackett
The Judge Advocate General

The following announcement is from the UK Military Court Service website:

Coronavirus update 24 March 2020 

In light of the Prime Minister’s statement on 23 March 2020 concerning the current coronavirus pandemic, the Judge Advocate General has directed that the Military Courts will suspend all proceedings, except for urgent hearings (for example to hear custody applications and reviews) until at least 20 April 2020. A further direction will be given in due course in relation to hearings scheduled to take place from 20 April 2020 onwards. In the meantime, all urgent hearings will be conducted remotely by video conference.

Editor's Note: Coincidentally, March 24 is Articles of War Day, the anniversary of the day George III issued the 1774 Articles.

GITMO revolving door revolves again

Col. W. Shane Cohen, the latest military judge to preside over the 9/11 military commission trial at Guantánamo, has put in for a July 1, 2020 retirement, thereby throwing into serious doubt the viability of January 2021 trial date he set not long ago. Carol Rosenberg has the story here in today's Times. 

Come va?

To paraphrase the immortal words of New York's late mayor Ed Koch, "how're we doing?" Well, let's run the numbers.

This is Global Military Justice Reform's 5300th post. We've had 754 comments and 777,315 hits (okay, some from bots) from readers in 186 jurisdictions (Liechtenstein, Monaco, Nauru, and San Marino remain AWOL). Twenty-one contributors and one editor. The lights are still on in the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

Stay well and keep in touch.

Women should be included in the draft, says commission

A commission mandated by the FY 2017 NDAA to study the U.S. draft recommends in its hot-off-the-press 255-page report that women and men be equally required to register for the draft. Fact: the same NDAA included a provision mandating exactly that in the Senate version (pushed through by the much-missed Senator John McCain), but opening the draft to women died in conference. Instead, an 11-member commission to "study" the issue was born, and who knows how many hundreds of thousands of dollars later, we now have their unsurprising conclusion to JUST DO IT.  Congress, ball is back in your court.  How long have women been in combat now???????????

Why are conditional discharges not available to courts martial in Canada?

Recently, I commented on the Pleas in Bar of Trial in both R v Master-Corporal Pett, 2020 CM 4002 and R v Corporal D’Amico, 2020 CM 2002 relating to the independence and impartiality of the military judiciary in Canada.  However, the case of Corporal D’Amico is significant in a second way: his was the first court martial in which a judge granted an absolute discharge at a contested sentencing hearing.

This prompted me to query why only ‘absolute discharges’ are available in Canadian courts martial, to the exclusion of ‘conditional discharges’.

Unfortunately, although the D’Amico Court Martial was concluded over 2 weeks ago, the reasons for sentencing (or, more specifically, the granting of an ‘absolute discharge’, since that is not a sentence) have not yet been published on a publicly available database.  However, for the purposes of the discussion below, the judicial reasons are not necessary.  What I am aware of is the following: 

1. After the aforementioned Plea in Bar of Trial was unsuccessful, Corporal (Cpl) D’Amico was found guilty of an offence under section 129 of the National Defence Act (NDA): neglect to the prejudice of good order and discipline.  [It is likely that this was the result of a guilty plea, but I will refrain from including that speculation in my discussion below].
2. On sentencing, defence counsel argued for an absolute discharge, and military prosecutors argued for a sentence that would presumptively have led to a conviction (e.g. a fine or a fine and a reprimand).
3. Cpl D’Amico received an absolute discharge.

By virtue of the absolute discharge, although he was found guilty of the offence under section 129 of the NDA, Cpl D’Amico was not convicted.

As I mention above, this is the first time that an absolute discharge has been granted at court martial where military prosecutors opposed the defence proposition.  There have been prior occasions in which defence counsel have requested an absolute discharge – e.g. R v Corporal Cadieux, 2019 CM 2019 – but those arguments were unsuccessful.

‘Firsts’ tend to receive a degree of recognition.  This is equally true in military context.  But what strikes me as one of the most significant aspects of this decision is not its status as a ‘first’, but the fact that the military judge faced a choice between an absolute discharge or a sentence from the permitted scale of punishments.

Extradition of a Bosnian War rape suspect

A Balkan Transitional Justice web site has this posting.

The US Federal Court in Missouri on Monday approved an extradition request from Bosnia and Herzegovina for Adem Kostjerevac, who is wanted for trial in Sarajevo on war crimes charges.

Judge Patricia Cohen’s order said that the prosecution’s request “contains sufficient competent evidence to grant the certificate of Kosjerevac’s extraditability”. The final decision the extradition is up to the US Secretary of State.

The Bosnian prosecution accuses Kostjerevac, as a former military policeman with the Bosnian Army’s First Muslim Brigade in Zvornik, of raping a pregnant Serb woman who was being detained in a building that he was guarding in September and October 1992.

Articles of War Day

On this day in 1774, George III (at right) signed the Articles of War. The British AW were the model for the American Articles passed the following year by the Continental Congress.

Pakistan Army and war crimes?

Anriban Ganguly brings "Pakistan army must be tried for war crimes," published today in DailyOh!

He begins

Prime Minister Narebdra Modi's address on the occasion of the inauguration of "Mujib Barsha" - Mujib Year - to celebrate the centenary of Bangabandhu Sheikh Mujibur Rehman, was an inspiring one.

Recalling the struggle of the people of Bangladesh under the leadership of Bangabandhu, Modi observed "how a repressive and cruel regime, disregarding all democratic values, unleashed a reign of injustice on 'Bangla Bhumi' and devastated its people" and how Mujib "had devoted every moment of his life towards bringing Bangladesh out of the phase of devastation and genocide and making it into a positive and progressive society."

And asks,

While Sheikh Hasina's government has held a bold and exemplary War Crimes trial against Razakar collaborators of the Pakistan army's genocide in Bangladesh, "Mujib Barsha" this year and next year the 50th anniversary of the Bangladesh Liberation War, is the right time to call for an international trial of the Pakistani army itself for its role in war crimes and genocide in 1971.

The self-styled international 'conscience keepers" of the world must respond.

Military Discipline Bill withdrawn in South Africa

The Military Discipline Bill, B21 of 2019, has been withdrawn from legislative action in South Africa, to afford an opportunity for further study and comment. DefenceWeb writes:

The bill, which seeks to provide for effective administration of the military justice system and maintenance of discipline in the national defence force, was retracted by Defence and Military Veterans Minister, Nosiviwe Mapisa-Nqakula, in accordance with rule 334 of the National Assembly Rules to allow for further consultation on its contents according to a Parliamentary Communication Services statement.

It appears the bill’s withdrawal follows only minimal input during a short period allowed for public comment. Thirteen were received. They will now go to the Department of Defence (DoD) for consideration and possible inclusion in a review of the Bill before it is resubmitted to Parliament.

If enacted, the measure would replace the Military Discipline Supplementary Measures Act, which was passed by Parliament in 1999.

A resignation in Lebanon

The president of Lebanon's military court has resigned following the U.S.'s exfiltration of a Lebanese-American dual national, Amer Fakhoury, while the man's acquittal was pending appeal. Details here.

South Africa Constitutional Court: soldier whose civilian rape conviction has been set aside must be reinstated

The Constitutional Court of South Africa yesterday decided Maswanganyi v. Minister of Defence and Military Affairs & Ors. CCT170/19, [2020] ZACC 4. The court summarized the unanimous decision as follows:

On Friday, 20 March 2020 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Supreme Court of Appeal, which overturned that of the High Court of South Africa, Gauteng Division, Pretoria. The High Court had ordered the reinstatement of the applicant to the South African National Defence Force (SANDF), but the Supreme Court of Appeal reversed that order.

The applicant was charged with rape and on appeal, the criminal conviction and sentence were set aside. The applicant was, at the time of arrest, conviction and sentence an employee of the SANDF. Once convicted, the SANDF, relying on section 59(1)(d) of the Defence Act 42 of 2002 (Defence Act), terminated his employment. Section 59(1)(d) provides that the service of a member of the Regular Force is terminated through the operation of law, if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine. After the criminal charges against the applicant were set aside, the SANDF refused to reinstate him.

Neatly trimmed and evenly graduated?

The U.S. Navy has relaxed hair length standards because of the coronavirus, according to this report in The New York Times. Such matters are normally covered by U.S. Navy Uniform Regulations art. 2201.1. Excerpt from the provision for men (the one for women is about four times as long):

Keep hair neat, clean and well groomed. Hair above the ears and around the neck shall be tapered from the lower natural hairline upwards at least 3/4 inch and outward not greater than 3/4 inch to blend with hair­style. Hair on the back of the neck must not touch the collar. Hair shall be no longer than four inches and may not touch the ears, collar, extend below eyebrows when headgear is removed, show under front edge of headgear, or interfere with properly wearing military headgear. The bulk of the hair shall not exceed approximately two inches. Bulk is defined as the distance that the mass of hair protrudes from the scalp. Hair coloring must look natural and complement the individual. Faddish styles and outrageous multicolored hair are not authorized. The unique quality and texture of curled, waved, and straight hair are recognized, and in some cases the 3/4 inch taper at the back of the neck may be difficult to attain. In those cases hair must present a graduated appearance and may combine the taper with a line at the back of the neck. One (cut, clipped or shaved) natural, narrow, fore and aft part is authorized. Varying hairstyles, including afro, are permitted if these styles meet the criteria of maximum length and bulk, tapered neck and sides, and do not interfere with properly wearing military headgear. Plaited or braided hair shall not be worn while in uniform or in a duty status. Keep sideburns neatly trimmed and tailored in the same manner as the haircut. Sideburns shall not extend below a point level with the middle of the ear, shall be of even width (not flared) and shall end with a clean shaven horizontal line. Figure 2‑2‑1 refers. "Muttonchops", "ship's captain", or similar grooming modes are not authorized.

Consensual sex court-martial in Indonesia

The Jakarta Post reports here on a controversy of the prosecution of a gay Indonesian Army junior officer for having consensual sex with other men. Excerpt:

The trial against DS in a martial-court in Denpasar was the latest example of numerous forms of persecution confronting the lesbian, gay, bisexual and transgender (LGBT) community across the country, according to activists. Many activists and experts have been denouncing such accusations against people for same-sex relations as a form of discrimination and a violation of human rights.

The indictment was not the correct application of Article 281, which stipulates that the offense must be carried out "publicly" in open spaces, said Institute for Criminal Justice Reform’s (ICJR) researcher Genoveva "Geno" Alicia Karisa Shiela Maya.

Please take care of yourself

Many of our far-flung readers are being affected -- or at risk of being affected -- by the coronavirus. Please follow the instructions of your national or local health authorities. Global Military Justice Reform will continue, but we need you to be healthy. We will be thinking of you while we are self-isolating in the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

Contributors: please continue to post, especially now. Readers: keep reading and commenting. 

Military courts in Somalia

The Department of State's Country Report on Human Rights Practices for 2019 says of Somalia:

Military courts continued to try cases not legally within their jurisdiction and in proceedings that fell short of international standards. Federal and regional authorities sometimes executed those sentenced to death within days of the court’s verdict, particularly in cases where defendants directly confessed their membership in al-Shabaab before the courts or in televised videos. In other cases the courts offered defendants up to 30 days to appeal death penalty judgements. National figures on executions were unreliable, but the UN Mission to Somalia (UNSOM) tracked 15 executions across the country between January and October 2018. Human rights organizations questioned the military courts’ ability to enforce appropriate safeguards with regard to due process, the right to seek pardon, or commutation of sentence as well as to implement sentences in a manner that meets international standards. In December 2018 Somalia National Army (SNA) members executed by firing squad six men suspected of affiliation with al-Shabaab in Bardera, Gedo Region. The men had been in prison for five months but had not yet been charged.

Old cases never die

Should the leaders of the Kenya Defence Forces be held in contempt for failing to do as they were told in 2014 by the country's Court of Appeal? A former Air Force commander is standing up for his rights, according to this article. The decision at issue is Kariuki v. Attorney General, Civil App. No. 79 of 2012, [2014] eKLR. One does wonder why Major General Peter M. Kariuki has for the second time waited years before seeking judicial review.

An unusual argument in Canada

It is not every day that one reads a military case in which the government argues for the application of civilian sentencing standards in order to obtain a stiffer sentence on appeal . . . and loses. But that is what happened in R. v. Darrigan, 2020 CMAC 1. The painstaking judgment was written for a unanimous panel by Justice Jamie W.S. Saunders of the Court Martial Appeal Court of Canada (as well as the Nova Scotia Court of Appeal). 

Lebanon military court drops charges against 'Butcher of Khiam'

Aljazeera reports that,

Beirut, Lebanon - Lebanon's military court has dropped charges against a former member of an Israel-backed militia accused of overseeing the torture of thousands of people at a notorious south Lebanon prison decades ago.

The charges against Lebanese American Amer Fakhoury, who was a former member of the now-disbanded South Lebanon Army (SLA) - a proxy militia backed by Israel during the 1982-2000 occupation of Lebanon, were dropped because the statute of limitations had expired, the state-run National News Agency (NNA) reported on Monday.

UK military to be protected from "vexatious" legal actions?

BBC reports that,

British soldiers who served in Northern Ireland will be excluded from proposed legislation designed to protect veterans from unfounded prosecutions.

 Defence Secretary Ben Wallace told MPs the law, to be tabled on Wednesday, would cover "overseas operations" only.

 But he said ministers would also set out the next steps to give Northern Ireland veterans "equal" protection.

 Conservative MPs have waged a long-running campaign to put a stop to "vexatious" legal actions.

Happy Evacuation Day

Yep, today's Evacuation Day, the day Lord Howe & Co. departed The Hub in 1776.

Uganda, again

The Daily Monitor has this report on a civilian woman who was arrested by the Ugandan military when she sought to visit her civilian husband, who in turn is being held pending trial by court-martial. Excerpt:

“My husband is not a soldier. I don’t know why he is being held under military detention. I tried to make sure he gets justice but was instead arrested and ordered to confess that my husband had been used by (Gen) Kale Kayihura (former Inspector General of Police) to illegally repatriate Rwandan refugees,” M[s Fatuma] Nassanga said.

* * *

“I was kept in a cold room for eight days because I had gone to visit my husband in Makindye. Different officers came in asked me to plead with my husband to accept that he had been used to repatriate Rwandan nationals and tell them his connections with the country’s president,” Ms Nassanga claimed.

“They told me to eat the food that I had brought for my husband and I did. But they went ahead and arrested me,” she added.

Extremism? "Nationalism"? Free Speech?

Andrew Dyer of the San Diego Union-Tribune reports here on the Marine Corps' investigation of a lance corporal who "describes himself on his Twitter account as a 'nationalist' and says he is the chairman of a group called the 'U.S. Nationalist Initiative.' Its Facebook page has more than 1,400 followers."

What would you do if you were the commanding general or staff judge advocate? Grounds for separation?

H/T to Task & Purpose for the link.

Football, opioids, and West Point

Consider this case of a West Point cadet who becomes addicted to opioids after a football-practice injury and winds up with an Other Than Honorable discharge and a bill for hundreds of thousands of dollars. Is that the right outcome?

Not military justice, but . . .

Congress carved a chunk out of the Feres Doctrine in the last National Defense Authorization Act. Was it enough? Here's what Daniel Perrone writes on Jurist (excerpt):

The Limited Exception To The Feres Doctrine Created By The NDAA

The NDAA created a limited exception to the Feres Doctrine “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider,” provided that the “act or omission constituting medical malpractice occurred in a covered military medical treatment facility.” The term “Department of Defense health care provider” means “a member of the uniformed services, civilian employee of the Department of Defense, or personal services contractor of the Department [of Defense] …” while a “covered military treatment facility” includes certain military medical treatment facilities maintained by the Secretary of Defense.

While the NDAA certainly chips away at some of the unfortunate consequences of the Feres Doctrine, at least insofar as medical malpractice claims are concerned, the plain terms of its text do not extend to claims against the US for personal injury or death incident to the service of a member of the uniformed services that either: (a) occurred in a medical treatment facility other than a “covered military treatment facility,” such as one maintained and operated by the Secretary of Veterans Affairs; or (b) was caused by the medical malpractice of a civilian employee of the Department of Veterans Affairs or a personal services contractor of the Department of Veterans Affairs. The latter is worrisome since the Department of Veterans Affairs enters into agreements with medical education programs to train its neophyte matriculants:

In Academic Year 2017, 43,565 medical residents, 24,683 medical students, 463 Advanced Fellows, and 849 dental residents and dental students received some or all of their clinical training in VA.

The NDAA either reflects an intention of the legislature to leave members of the uniformed services without recourse for harms suffered incident to their service caused by the medical malpractice of untrained medical residents and students, among others, or demonstrates ignorance that “VA health care facilities are available to active duty service members in emergency situations and upon referral by military treatment facilities through Sharing Agreements or under your TRICARE coverage,” meaning active-duty members of the uniformed services may suffer harms incident to their service caused by the medical malpractice of healthcare providers other than those contemplated by the NDAA at medical facilities other than those contemplated by the NDAA.

At it again in Uganda

Another seven civilians have been prosecuted in a court-martial in Uganda, as reported here. The victim, a Moslem religious leader, was gunned down. Only the alleged trigger-puller, a private security company employee, pleaded guilty. The others have pleaded not guilty.

This prosecution violates the African Charter. In addition, global human rights jurisprudence strongly disfavors the trial of civilians in military courts.

Danish military justice

Danish authorities have issued an updated edition of the useful brochure describing the country's military justice system, available here. The 2020 edition includes an excellent summary of the Danish system for military summary proceedings.

Thanks to Military Prosecutor General Lars Stevnsborg for the link.

National authorities in other countries would do well to use the Danish brochure as a model for explaining briefly but accurately the operation of their legal institutions for maintaining good order and discipline in their armed forces.

Prof. William Burke-White (University of Pennsylvania and the Brookings Institution) reports here on the context and possible fallout of the International Criminal Court's recent decision permitting the Prosecutor to investigate United States personnel's actions in Afghanistan. Excerpt:

The prosecution of American service members for acts in Afghanistan could have been easily avoided. Most obviously, the U.S. could have started the war in Afghanistan in compliance with humanitarian law — avoiding torture and the unnecessary killing of civilians. After all, early in the Obama administration policies changed to prohibit such conduct without materially limiting the U.S. military’s effectiveness in Afghanistan. But, even once those crimes occurred early in the war, international prosecution was not inevitable. As I have argued elsewhere, the ICC was established as a court of secondary jurisdiction, leaving national governments as the primary actors to hold their soldiers and commanding officers responsible for war crimes. The court can only step in where national governments fail to undertake investigations and prosecutions themselves. As part of the ICC proceedings, the trial court assessed whether the U.S. had done so and found that “no national investigations have been conducted against those who may be most responsible.” Had the U.S. — under Presidents Bush, Obama, or Trump — made justice for past mistakes in Afghanistan a priority, including by investigating and prosecuting senior officials who may have ordered the crimes that occurred in Afghanistan, the ICC would have been stopped in its tracks. Instead, the U.S. military justice system only prosecuted a handful of lower-level soldiers.

He concludes:

. . . It is often better to have a court on your side than against you. For decades, the institutions of international justice have sought to preserve their relationship with the U.S. and interpreted the law to avoid direct conflict whenever possible. The Pre-Trial Chamber’s decision in April was a last-ditch effort to do so. The Appeals Chamber decision this week marks a turning point. The Trump administration has now fully squandered that good will and the ICC will no longer seek U.S. support. Instead, faced with no other plausible alternative, the ICC may set its sights more actively on the U.S.

Canadian DMP withdraws charges against Chief Military Judge

On 11 March 2020, Colonel Bruce MacGregor, the Director of Military Prosecutions (DMP), withdrew the charges that had been preferred against Colonel Mario Dutil, the Chief Military Judge of the Canadian Forces.  Although Colonel Dutil will be obliged to retire on or before 20 March 2020, when he turns 60 years of age (the compulsory retirement age for members of the Canadian Forces except officers of the Cadet Organizations Administration and Training Service, or COATS), he would still have been subject to Code of Service Discipline proceedings under the National Defence Act (NDA), even when he became a civilian.  By virtue of subsection 60(2) of the NDA, “… Every person subject to the Code of Service Discipline … at the time of the alleged commission … of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).”

In a very brief letter, DMP withdrew the charges that had been preferred by the ‘special prosecutor’ that DMP had assigned, Second Lieutenant C. Sénécal.  As mentioned, both in the judgment of Justice Martineau in The Director of Military Prosecutions v Deputy Chief Military Judge et al., 2020 FC 330, [see paras 31 and 66 to 67] and Military Judge Commander Pelletier in R v Master-Corporal Pett, 2020 CM 4002, [para 27], there is nothing particularly ‘special’ about a special prosecutor under the Code of Service Discipline.  DMP can present a letter or certificate naming an advocate or barrister as a ‘Special Prosecutor’ under section 165.15 of the NDA; however, pursuant to section 165.13, the preferral and disposal of charges is done either by DMP or in his name.  Despite the use of the terms ‘special’ in the title, a ‘special prosecutor’ is not – and cannot be – independent from DMP when performing these prosecutorial duties and functions.

Similar to other circumstances in which DMP (or a military prosecutor acting on behalf of DMP) has withdrawn or ‘non-preferred’ charges, the decision was communicated with very brief language and without offering any meaningful reasons.

The two paragraph (technically, two sentence) letter read (en français):

1.       Le 3 août 2018, le Sous-lieutenant C. Sénécal, procureur spécial, a prononcé une mise en accusation à la référence B.

2.       Conformément à la référence A, l’acte d’accusation à la référence B a été retiré le 11 mars 2020 par l’avis de retrait de mise en accusation à la référence C.

For our English-speaking colleagues, this can be translated, roughly, as:

1.       On 3 August 2018, Second Lieutenant C. Sénécal, Special Prosecutor, preferred a charge sheet identified at reference B.

2.       Pursuant to reference A, the charge sheet at reference B was withdrawn on 11 March 2020 by the notice of withdrawal from the indictment at reference C.

‘Reference B’ was the document preferring charges against Colonel Dutil on 3 August 2018.  However, those who have been following this saga might note that the charges were first laid (as distinct from being ‘preferred’) seven months earlier on 25 January 2018.  The subject matter that formed the nucleus of these charges had first been raised in a complaint dated 9 October 2015.

‘Reference C’ was a notice of withdrawal of a charge sheet, signed by Colonel MacGregor, presumably pursuant to sub-section 165.12(2) of the NDA.  Also, as no trial had yet been commenced, DMP presumably did not require the leave of the court martial.  Indeed, following the recusal decision by the Deputy Chief Military Judge, no subsequent court martial had been convened.

Maltreatment in Liberia

Two service members of the Armed Forces of Liberia (AFL) took an unorthodox approach to crime prevention. The officers paraded and stripped with an accused motorcycle thief through the main streets of Gbarnga. 

In response to the abuses committed during the two Liberian civil wars, the reconstituted AFL has focused on protecting human rights.  So while the officers took this unusual tack to punish thievery, the AFL took steps to protect their professional military. The AFL expelled the officers for the good of the service and for conduct not in keeping with the AFL's standards. Despite the calls from human rights groups to prosecute the officers, the AFL appears to have decided the misconduct did not warrant criminal convictions or jail time.

It also appears some lower ranking service members were given non-judicial punishment for participating in the thief's maltreatment. The piece cites Article 15 of the Liberian Uniform Code of Military Justice (UCMJ) as the basis for that punishment, which suggests the Liberian military has copied sections of the United States' UCMJ; an observation noted previously on this blog.