The Chief of the Defence Staff's ongoing disregard for the rule of law

It has now been two weeks since the Deputy Chief Military Judge, Lieutenant-Colonel L-V. d'Auteuil issued his judgments in R v Edwards, 2020 CM 3006 and R v Crépeau (as yet unreported).

These judgments focused principally on General Vance's refusal to rescind a problematic order, which places military judges under the jurisdiction of the Deputy Vice Chief of the Defence Staff.  Military judges have consistently held that this undermines their independence.  This blog post expands on many of the issues.

The Chief of the Defence Staff (CDS) has still not rescinded the order.

Director of Military Prosecutions (DMP), on behalf of the Minister of National Defence, has issued Notices of Appeal for both cases, and Defence Counsel Services have replied with Notices of Appearance. It is no surprise that the DMP has sought to appeal the judgments. However, we can also anticipate that applications for stays of prosecutions will be brought in every single court martial until the CDS rescinds his order. It would not be unreasonable to expect these stays to be granted in most, if not all, of those cases. This stubborn insistence on the part of the CDS has the potential to make the 'interregnum' caused by Beaudry v R, 2018 CMAC 4 look like a minor blip.

Stay tuned ...

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Score at the end of seven innings of play . . .

Remember Kulbhushan Jadhav? He's the Indian national convicted of spying by a Pakistani court-martial, but denied consular access in violation of the Vienna Convention. This article by Bharatendu Agarwal in The Wire brings the story up to date, including some funny business about an ordinance that the Pakistani government slow-rolled in bringing before the legislature,* and questions about whether an Indian lawyer will be permitted to represent Jadhav in the Pakistani courts, or, failing that, whether any Pakistani attorney will undertake the representation given the personal risks involved in doing so.

* The only place the Editor was able to find The International Court of Justice (Review and Re-consideration) Ordinance, 2020, Pak Gaz. (Extra), No. VI of 2020, May 29, 2020, pt. I, at 259, was this tweet.

The challenges of deploying the army in civilian COVID-19 policing operations – a South African perspective

Now that several months have passed since the inception of Operation NOTLELA, and the ramifications of the High Court judgment in Khosa et al. v. Minister of Defense have taken hold, Angelo Dube, Associate Professor of International Law at the University of South Africa at Pretoria, provides an updated overview of the situation in the blog platform Rights!

Speaking truth to power

West Point faculty member Lt. Col. Dan Maurer, writing in his personal capacity, has penned another thought-provoking essay for Just Security: "Breaking Ranks in a Civil-Military Crisis: Strategic Communication to Register Dissent." Excerpt:

The measure of a successful, principle-based communication campaign will be the orderly transfer of executive power from one civilian to another with the military’s role being safely irrelevant to the equation. It should go without saying that the military is never the right or best tool to solve a domestic political predicament—even the grave ones. But, now that using this tool is part of the public conversation, it bears repeating that the military’s only legitimate role is one of fidelity to the Constitution without picking up arms to solve a political problem.

COVID-19 and military justice (India)

The military justice fallout of the pandemic continues. The Hindustan Times reports that all 10 regional benches of the Armed Forces Tribunal are now conducting hearings by videoteleconference. Until now, only the court's principal bench had conducted such hearings.

IACHR: Djamel Ameziane v. United States

Following the events of 9/11, the US and its NATO allies engaged in military operations in Afghanistan with UN approval.  Beginning in February 2002, the US began to transfer suspected terrorists to its Naval Base in Guantanamo Bay, Cuba, a black hole, where US authorities claimed that the law didn't apply because these were not "prisoners of war," entitled to protection under Geneva III, but "unlawful enemy combatants," a term not used in the Geneva Conventions.  The Inter-American Commission on Human Rights (Commission), a principal organ of the Organization of American States, in March 2002, issued precautionary measures for the Guantanamo detainees, a kind of interim relief, when the beneficiary is in urgent danger of irreparable harm, and called upon the US to clarify their legal status, since the detainees were being held without charge.  These measures were reiterated and expanded over the years as further information about the status and conditions these detainees were under were brought to light.

On August 6, 2008, the Center for Constitutional Rights and the Center for Justice and International Law presented the first individual case of a Guantanamo detainee, Djamel Ameziane, an Algerian Muslim. who had fled Algeria, to the Commission.  It should be noted that the Commission is the only international human rights body, where persons may file petitions alleging that the US has violated their human rights.  The US has ratified the UN Covenant on Civil and Political Rights, but it has not accepted the first Optional Protocol, which gives individuals the right to file petitions against the US with the UN Human Rights Committee.

Mr. Ameziane was held in Guantanamo from 2002 until he was forcibly expelled to Algeria in December 2013, in violation of the principle of non-refoulement.  During his detention he suffered torture, solitary confinement, beatings, lack of medical care, insults to his religion, etc. and, most importantly, the total lack of access to habeas corpus, or any judicial remedy, to provide a rationale for his confinement.  In October 2008, four months after the Boumediene Supreme Court decision, he was authorized to be transferred out of Guantanamo, but he feared being returned to Algeria where, as a Muslim, he had been persecuted, and the US authorities were unwilling to send him anywhere else.

The Commission's Merits decision on the case was issued on April 22, 2020.  This is the Commission's first decision on a case involving a Guantanamo detainee and calls upon the US, inter alia, to repeal the Military Commissions Act and the Detainee Treatment Act.  The Commission considers these laws tantamount to impermissible amnesty laws, because they provide a complete defense to the prosecution for crimes committed in connection with the detention and interrogation of these detainees on the basis of legal guidance in force at the time, which indicated that certain interrogation techniques amounting to torture were legal.  This thoughtful and important decision is 70 pages long and deserves greater consideration and dissemination than it has received until now.

The price of judicial independence

A Spanish military judge's complaint has been rejected by the General Council of the Judiciary. His claim was that a €98 reduction in pay compromises his judicial independence. According to this article by Maria Peral in El Español:

The petitioner, assigned to a Territorial Military Court, considers that economic independence is an "essential factor" to ensure "true judicial independence" and maintains that judges should be guaranteed a level of remuneration appropriate to their high responsibility and power status. of the State, and "to remove any weakness in the performance of their duties and full dedication."

"In these times of crisis, this should not be neglected, especially considering that this group of military judges and magistrates has been losing the purchasing power of their salaries for several years, compared to other professional groups," he pointed out.

The pay cut has affected a special dedication supplement for which between January and April the lieutenant colonel auditor had to charge 814 euros, but 716 euros were paid, that is, 98 euros less.

In his opinion, the drop in the payroll "lacks a legitimate cause or motive" and has been done "without legal protection and with the exclusion of its application to any other public official group ."

* * * 

The governing body of the judges has reached the conclusion that the events reported by the author lieutenant colonel "do not fall within the orbit of protection of judicial protection . "

It argues that it is not up to the CGPJ Permanent Commission to assess the success or failure of an action by the Ministry of Defense in the remuneration field because this decrease in assets can be reviewed by the contentious-administrative jurisdiction through the corresponding appeal.

"It is clearly appreciated that, in any case, such action, which we remember is limited to reducing the applicant's gross remuneration by 98 euros, lacks any potential to influence the decision-making capacity of the robed member in any process in progress, not constituting, therefore, a circumstance that, objectively considered, could endanger the constitutional value of judicial independence", affirms the resolution of the Council.

In that sense, it reiterates that judicial independence, conceptualized as the absence of pressures or influences that, directly or indirectly, seek to guide judicial decisions apart from exclusive submission to the law, "cannot be disturbed" by an action of the Ministry of Defense consisting of reducing 98 euros the payroll of a military judge.

Therefore, it concludes that the petition for amparo should not be admitted for processing "as it is manifestly unfounded, because the determining elements of disturbance or attack on judicial independence, conceived as unconditional decision-making capacity and exclusively subject to the rule, are not present of the law".

Having exhausted this remedy, one would think the complaining judge will pursue his claim through the alternative avenue noted by the Permanent Commission. Is the loss here de minimis or is the principle of non-diminution of salary implicated regardless of the amount? What would a reasonable, objective observer, fully informed of the facts and circumstances, conclude as to the judge's independence?

A pleasant surprise in Venezuela

There's been a surprising decision in Venezuela. Acknowledging international standards and rulings of the Inter-American Court of Human Rights, the Criminal Cassation Chamber of the Supreme Court of Venezuela has ruled that military courts may not try civilians. Details can be found in this article from Correo del Caroní. Excerpt [Google Translate]:

[O]n July 30, the Criminal Cassation Chamber of the Supreme Court in its sentences 70 and 71, expressed the following:

The unionist Rubén González and the deputy Gilber Caro are two cases that show the unconstitutional use of military justice [against] civilians.

“The military judge is not the natural judge for the criminal prosecution of civilians, due to not meeting the constitutional and legal requirements for the healthy performance of the jurisdictional function, with respect to non-military and even less in crimes other than military nature. , with the understanding that the purpose of the military jurisdiction is to maintain order and discipline within the Bolivarian National Armed Forces, through the prosecution of military crimes committed by the acting military ”.

* * *

With these decisions, the Supreme Court seems to return to the jurisprudential line that began to be drawn from the entry into force of the Magna Carta of 1999, which in its article 261 is clear when it indicates that "the commission of common crimes, violations of rights human rights and crimes against humanity will be tried by ordinary courts. The jurisdiction of the military courts is limited to crimes of a military nature”.

It is also striking that on this occasion the Criminal Cassation Chamber not only appealed to the Constitution and its previous judgments, but also to pronouncements of the IACHR and the Inter-American Court. This is no small thing, because over the last two decades the highest court has not only ignored the decisions of the regional human rights protection bodies, but has also disregarded them, and even at the time, opened the doors for the country to leave the jurisdiction of the Court in 2013 with the denunciation of the American Convention on Human Rights.

The 1999 Constitution provides [Google Translate]:

Article 261. The military criminal jurisdiction is an integral part of the Judicial Power, and its judges will be selected or selected by competition. Its scope of competence, organization and modes of operation will be governed by the accusatory system and in accordance with the provisions of the Organic Code of Military Justice. The commission of common crimes, violations of human rights and crimes against humanity will be judged by the ordinary courts. The jurisdiction of the military courts is limited to crimes of a military nature. The law shall regulate what is relative to the special jurisdictions and the competence, organization and functioning of the courts insofar as it is not provided for in this Constitution.

A small number of other countries, such as Egypt, Uganda, Lebanon, Pakistan, and Russia, persist in prosecuting civilians in military courts, despite the contrary human rights jurisprudence. U.S. law provides for the court-martial of persons serving with or accompanying an armed force in the field in time of declared war or a contingency operation.

No more military jurisdiction over homicides

The Supreme Court of Mexico has handed down a decision holding that military courts have no jurisdiction over homicides. The case arose from the death of a soldier as a result of exhaustion following a 5K footrace; the accused was an Army doctor. El Diario has details here. Excerpt (Google Translate):

"The legal nature of the homicide prevents a strict connection with military discipline from being able to exist, given that the legal asset that is intended to protect is life, as one of the most precious assets for the human being and for society, without that bears any relation to the legal assets of the military order or with some type of affectation to them", indicates the thesis published on August 7.

This criterion is added to others dictated by the Court since the past decade that have been increasingly reducing the jurisdiction of the Supreme Military Court (STM) and its courts, to leave it only in offenses that affect military discipline, and excluding any matter in whichever a civilian is involved.

Rohingya crisis

The Wire reports--'Textbook Example of Ethnic Cleansing': A Timeline of the Rohingya Crisis, in which they note August "marks the third anniversary of the fleeing of more than 730,000 Rohingya from Myanmar to Bangladesh."

Getting and keeping evidence on the battlefield for later trials

Just Security reports,

In December 2019 the United Nations Counter Terrorism Committee Executive Directorate (CTED), with the support of the traditional alphabet soup of other U.N. organizations focused on counter-terrorism, promulgated their “Guidelines to facilitate the use and admissibility of evidence in national criminal courts of information collected, handled, preserved and shared by the military to prosecute terrorist offences.” The (perhaps overly ambitious) objective of the Guidelines is to provide “a broad range of relevant stakeholders” information on how to address questions of admissibility that arise in conflict or post-conflict situations (p. 6). It has to be said though that there seems to be a rather large focus on the military, who are not usually trained criminal investigators, and not ideally suited to take the lead on roles such as evidence collection.

From Robert Cryer, The UN Guidelines on "Battlefield" Evidence and Terrorist Offences: A Frame, a Monet, or a Patchwork? 12 August 2020.

The role of military justice and presidential powers in recent Taiwanese history -- a worrying tale

As many blog-readers are aware, the Island of Formosa (currently Taiwan) was called Dutch Formosa for some time in the mid-seventeenth century, after the Dutch East India Company had ousted the Spanish and had established Fort Zeelandia, which enabled Dutch traders to use the island as a base for trade with China and Japan. The times of the Pax Hollandica in Formosa are long gone, but interest in the island still remains … 

 

The Taipei Times ran this interesting article earlier this week, with details of a recent report of the Taiwanese Transitional Justice Commission.

 

The report covers the so-called Martial Law-period in Taiwan’s more recent history--also known as the White Terror--which lasted from the beginning of the Republic of China (1949) until martial law was finally repealed in 1987. As Reuters reported in 2008, during this period 140,000 people were imprisoned or executed for being perceived as anti-Kuo Min Tang or pro-Communist.

Although the Government of Taiwan (the Executive Yuan) at the time repeatedly assured that the (regular) judiciary and military courts would handle different cases, in practice the military courts did rule on civilian criminal cases, in particular where 'national security' was at stake. 

 

In the situations a military court had provided a verdict, these verdicts were not definitive, but could be ‘reviewed'--often with deadly consequences--by President Chiang Kai-shek, the head of the Executive Yuan, or by senior military officers.  

 

The report concludes by stating: “Chiang Kai-shek ordered that he retain control of the outcome military trials, a violation of the constitutional principle of the separation of powers.”

 

How true. Presidents and other Heads of State should not interfere in rulings of the independent judiciary.

Conscientious objector status in Bolivia

Military service is compulsory for all men between the ages of 18 and 22 in Bolivia.  Men and women can volunteer from the age of 16.  Active service is for one year.  Conscientious objection is not recognized by law and desertion is punishable by imprisonment.

On June 9, 2020, the Inter-American Commission on Human Rights, a principal organ of the Organization of American States, declared admissible the case of Jose Ignacio Orias Calvo from Bolivia.  The case was presented by Derechos en Accion (Rights in Action) on his behalf, alleging that his human right to conscientious objection to military service had been violated.  The petition was filed four years ago, on July 18, 2016, and indicated that the alleged victim declares himself an atheist who believes "in life, in nonviolence, in loe and in collaboration over imposition", which is why the Army and war run counter to his ethical principles.  On July 15, 2015, he requested the Ministry of Defense relieve him from obligatory military service because of his pacifist identity and that he be recognized as a conscientious objector.  On August 20, 2015, the Ministry of Defense denied the request claiming that pursuant to article 249 of the Bolivian Constitution military service is obligatory for every Bolivian.

Orias Calvo filed a writ of amparo (protection of constitutional rights) and the case went up to the Constitutional Court (see photo of two judges of the Court), which denied the amparo declaring that obligatory military service involves actions that do not carry a warlike environment such as assistance in cases of natural disasters, protection of the environment, safeguarding internal security and democratic processes, among others.

Although "conscientious objection" is not included either in the Constitution or in the Law on National Defense Service (LSND), certain people are exempted from serving, such as the only sons of mothers who are widowed, or sons of old and impoverished parents, or someone who has parents who are older than 70 years of age and the son is the sole support; or the eldest son or only son of a father who died in an international war or during his Military Service, etc.

An earlier case of a Bolivian who sought conscientious objector status, the case of Adolfo Diaz Bustos, published in the Commission's Annual Report 2005, ended in a friendly settlement, which was finally complied with in 2018, although Mr. Diaz Bustos' was exempted from military service, Bolivia never incorporated conscientious objection into its military code.

'Judgement at Nuremberg.'

Francine Hirsch, Soviet Judgement at Nuremberg: A History of the International Military Tribunal After World War II. 

“The myth of the Nuremberg Moment,” according to historian Francine Hirsch in “Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II” (Oxford University Press), is that the trial of the surviving Nazi leadership for war crimes “celebrated the power of American leadership and Western liberal ideals.” But, she insists, “[t]he real story of Nuremberg is messy.”

“[A] popular mythology took hold in the United States that celebrated Nuremberg as the birthplace of postwar human rights,” Hirsch writes. Stalin, however, “envisioned the Nuremberg Trials as [he] had the Moscow Trials of 1936 to 1938,” that is, “as a grand political spectacle whose outcome was certain.” And yet Hirsch also credits the Soviet attorneys who participated in the trials for “mak[ing] their mark on international law in a way that changed it forever.” Even though Hitler and Stalin had secretly agreed to invade and divide up Poland in 1939, it was a Soviet attorney who introduced the idea that “the planning and waging of an unprovoked war of conquest [was] a punishable criminal act,” she argues. “The Nuremberg Trials might not have happened at all had the Soviet view not prevailed.”

Gangs and extremists in the U.S. military

Military.com obtained the 2018 Criminal Investigation Command (CID) report on gang and extremists activity. The 2018 report documented, among other things, gang-related murders and shootings in the military, and noted an increase in gang and extremist activity in the ranks from the previous year. There are probably a lot of explanations for this phenomenon, but an interesting insight comes from a retired CID agent:

The military has gang problems simply because it's a microcosm of the surrounding society…. While military background checks aim to root out candidates who have a history of criminal gang activity, they don't find those who have never been caught.

This observation is consistent with my experience, that except for pacifists, you generally see a cross-section of society represented in the military. And just as society has not eliminated gangs or extremists, neither can the military. So while human nature makes it impossible to eliminate all misconduct, one nonetheless hopes the military could root out an organized criminal element before training its members to be more efficient killers.

According to citations found in this 2009 Yale Law Journal article, it appears CID has been drafting yearly reports on the military’s gang problem since at least 2006. Multiple sources have noted the military’s gang problem over the last 15 years, with many reporting increased gang activity and extremist views year-over-year. Whether this is a result of the data being tracked more systematically or of noteworthy examples of anecdata breaking through in the news, this is nonetheless an alarming issue. So to the extent the uptick is real, is it a response to the failings of the military, of our society, or both?  

As for another piece of anecdata, the Guardian reminds us that white supremacists have used the military as a training ground to commit terror before—Timothy McVeigh was a white supremacist and decorated Gulf War veteran after all.  So considering how long we’ve been dealing with this, are civilian leaders and the military adequately addressing this problem?

Why I went to law school

In 1995, in the aftermath of a full military career (34 years), the Canadian government instituted a Commission of Inquiry into the deployment of the Airborne Regiment to Somalia. It dealt with allegations of misconduct, command failures and malformations of the military justice system. Driven by a desire to contribute to this review which could pave the way for essential reforms, I attended the hearings.

Disappointed to hear several of my former colleagues in their testimony resort to lapses in memory and dodging, I took part in the public debate. Over the months my disappointment turned to frustration as I realized more and more that even if the Commission were to succeed in exposing the serious shortcomings of the military justice system, I also knew that the military staff would nevertheless continue to have control of the change process. I wanted to play a role in this necessary transformation.

In 1996, I decided to follow in the footsteps of my son Daniel who already practices law. I am 53 years old and am entering law school. After completion of my articles of clerkship in the Federal Court of Appeal in 2002, I was admitted to the Bar of Ontario. I immediately opened a boutique law firm in Ottawa, walking distance from National Defence Headquarters specializing in military law. In 2009, I was also appointed adjunct Professor, Faculty of Law, University of Ottawa. Since then, I am taking part in the evolution of the Canadian military justice system, a slow but beneficial process. We have a way to go but smallas it is progress is being made.That is the important thing. Nil Sine Labore.

Canadian Military Judges and the Chief of the Defence Staff

R v Edwards, 2020 CM 3006

Canadian Military Judges continue to deliver a clear message, and the Chief of the Defence Staff (CDS) does not appear to be listening.

Worse still, it is not clear how resolute the Judge Advocate General (JAG) and the Director of Military Prosecutions (DMP) have been in advising the CDS on his obligations not only to respect the Rule of Law, but to demonstrate that he, as a statutory actor, will uphold the Rule of Law. 

The Superintendence of Military Justice has become a central issue in the dynamic between the CDS, the JAG, and Military Judges. And this should be of concern not only to members of the Canadian Forces, but to all Canadians. 

Perhaps the CDS and others are hoping these recent developments will be over-shadowed by Bill Morneau's resignation as Finance Minister and the Prime Minister's decision to prorogue Parliament. However, this issue is not going away and the CDS' obstinacy may well undermine the Code of Service Discipline. 

Global Military Justice Reform contributor, Rory Fowler, expands upon this issue in a recent Blog article. 

Sexual assault enablers -- new book by Amos Guiora, and a webinar

Prof. Amos Guiora has a new book out, "Armies of Enablers: Survivor Stories of Complicity and In Sexual Assaults." He will discuss it in a webinar hosted by the S.J. Quinney College of Law that is free and open to the public on Aug. 26 at 8 a.m. Registration to receive a Zoom link is required: https://zoom.us/webinar/register/WN_BXcRd0NTSvuA3G3KDouhSw.

For a Q&A with Amos: https://www.newswise.com/articles/turning-a-blind-eye-to-sexual-abuse-university-of-utah-law-professor-explores-role-of-bystanders-in-new-book.

The Deputy Chief Military Judge's Line in the Sand

This afternoon, 14 August 2020, the Deputy Chief Military Judge (DCMJ), and de jure Acting Chief Military Judge, delivered judgments in the courts martial of R v Edwards and R v Crépeau.  While the judgments have not yet been published, the DCMJ did deliver his judgments, verbally, in open court.

And the Chief of the Defence Staff (CDS) and the Director of Military Prosecutions (DMP) are not likely to be particularly happy about the results.

In these courts martial, the accused challenged the independence of Canadian military judges, based upon both statutory provisions, as well as specific actions by the executive.  Military judges are officers in the Canadian Forces.  In effect, as was mentioned by my fellow Canadian Lawyer, Michel Drapeau, this makes them members of both the executive branch of government, as well as the judicial branch.  And this status potentially affects their independence.

As officers in the Canadian Forces, they are subject to the Code of Service Discipline, established under Part III of the National Defence Act (NDA).  As we witnessed in the prosecution of the Chief Military Judge, Colonel Mario Dutil, this can make military judges vulnerable to interference by the executive.  This has been compounded by an order from the CDS, purporting to give disciplinary authority over military judges to the Deputy Vice Chief of the Defence Staff.

That order was the subject of judgments in, among other cases, R v Pett, 2020 CM 4002, and R v D'Amico, 2020 CM 2002.  In both those cases, military judges Commander Pelletier and Commander Sukstorf, respectively, concluded that the order could have no force or effect because it infringed the independence of the military judiciary, contrary to section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).  Both military judges also concluded that the role of the Military Judges Inquiry Committee (MJIC) was, in effect, an alternative to the Code of Service Discipline.

However, courts martial in Canada are statutory courts, not 'Section 96 Courts' (established pursuant to section 96 of the Constitution Act, 1867) with inherent jurisdiction.  Military judges cannot strike down legislation or declare, generally, executive action of no force or effect.  They can only make rulings on the matters before them and the judgment is limited to that matter alone.  As a consequence, once the first couple of judgments found that the CDS order was unconstitutional as an infringement on judicial independence and impartiality, it invited similar applications in every subsequent court martial.

Therefore, in R v Bourque, 2020 CM 2008, military judge Commander Sukstorf issued an ultimatum.  The CDS had until the following week to rescind the impugned order that had been determined to be unconstitutional by at least two of the four military judges.

The order was not rescinded.

Like Thanos, review and reform of the independence of Canadian military judges is inevitable

I read with relish the recent contribution of my fellow Canadian, Michel Drapeau, regarding what we might characterize as the 'Dutil Affair'.

First, it is refreshing to see a post in French.  It conveys the truly international nature of this Blog.  It also reflects the language of the judicial processes used (both at court martial and before the Federal Court of Canada) for what can be termed the 'Dutil Affair'.  The fact that it is not in the language typically used for this Blog (English) is easily remedied for non-French speakers using electronic translation features.

The Dutil Affair presents an opportunity to learn several lessons - some of which I have commented on myself here and here - and I anticipate there will be much more scrutiny of these lessons in the coming months.  My fellow Canadian has offered some food for thought regarding potential reform.

That said, my perspective differs to an extent.  My colleague suggests: 

"The Chief Military Judge has legal authority over all military personnel working in the military justice system; this includes the military police, the director of military prosecutions, the director of defense counsel services, the other four military judges, and court martial administrative staff."  

This is my translation, and translation can always be a tricky thing when attempting to discern meaning.  However, while I agree that the Chief Military Judge (CMJ) has authority over the Office of the Chief Military Judge, and any court martial over which he presides, I would not suggest that this gives him far-reaching authority over all persons involved in the 'military justice' system in the performance of their duties.  It is unclear what my colleague means by 'legal authority'.  There is a distinction between 'command and control' and juridical jurisdiction.  The CMJ does not direct Military Police in the conduct of investigations.  He does not instruct CF leadership on their disciplinary options.  Military Judges will rule on questions of law brought before them (just as any civilian judge might) and through their judgments may influence how those statutory actors and decision-makers perform their functions in the future.  But this is no different from the role of civilian judges.

That said, the questions posed by my colleague merit answers, and few of those have been forthcoming over the past months.  Colonel Dutil's standing was certainly adversely affected and it is not unreasonable to suggest that harm was done to the reputation of military justice in Canada.  I have suggested previously that it should have been obvious to DMP that any trial of the CMJ should have proceeded before a civilian court of competent jurisdiction.  That was a viable option for the Canadian Military Prosecution Service, and it does not appear that much serious consideration was given to this option.

Men-only draft registration upheld

Reversing a district court decision, a panel of the Fifth Circuit has dismissed a constitutional challenge to men-only draft registration. The 6-page decision in National Coalition for Men v. Selective Service System, No. 19-20272 (5th Cir. Aug. 13, 2020), finds that the case is controlled by the Supreme Court's decision in Rostker v. Goldberg, 453 U.S. 57 (1981). Excerpt:

Here, as in State Oil Co., the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. See also Roper v. Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting) (pointing out that only the Supreme Court may overrule its precedents “even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding” and therefore the majority should have admonished the circuit court despite affirming its judgment); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); Agostini v. Felton, 521 U.S. 203, 237, 239 (1997) (confirming rule from Rodriguez de Quijas that lower courts may not “conclude [that] recent cases have, by implication, overruled an earlier precedent”).

Plaintiffs-Appellees point to no case in which a court of appeals has done what they ask of us, that is, to disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key facts implicated in the Supreme Court’s decision have changed. That we will not do.

On to the Supreme Court. 

What is to be done . . .

. . . when neither person can remember what happened? That was the question that lingered in the aftermath of the acquittal of a British Army officer accused of rape. The Telegraph reports:

Parliament should review the law around rape cases where neither party can remember having sex, a military judge has suggested after clearing an Army major of attacking a female Captain.

* * *

Jeff Blackett, [J]udge Advocate General, concluded: "You have been found not guilty by this board. It is intolerable that this case has taken so long to get to court and that is unacceptable... This was an unusual case because neither party can remember having sex."

He said that, in his view, "parliament should look again" at the law surrounding incidents where neither party can properly recall events, adding: "There must be a better way of dealing with these cases".

The case of the missing petitioner

The Kampala Observer reports here on the messy case of a former Member of Parliament who had been challenging the constitutionality of the law that provides for the trial by court-martial of weapons offenses committed by civilians, but who now, maybe, has been released under an amnesty. Was his amnesty application filed under duress? Was he not released through an oversight?

Victory for a civil guard in Spain

A member of the Guardia Civil has won his appeal to the Fifth Chamber of the Supreme Court of Spain. Details can be found here on the website of the Unified Association of Civil Guards (AUGC). The union's account includes the following:

From AUGC we insist on the need to stop applying the Military Penal Code to civil guards since they already have a disciplinary regime severe enough to punish this type of act, instead of subjecting these public servants to an anachronistic Military Penal Code, out of place in the police field and little in line with the current era and the countries around us, taking into account that we are a body in which 99% of our missions are police.

It should be remembered that in 2007 it was already established that the CPM would only apply to civil guards in four cases (mentioned below) but that the 2016 reform of the CPM represented a huge step backwards in their rights. For this reason we request the deletion of article 1, section 5, which applies to members of the Civil Guard, so that this rule is strictly applicable in cases of:

a) In times of armed conflict. 

b) During the validity of the state of siege.

c) In the fulfillment of military missions entrusted to them.

d) While they are integrated into Units of the Armed Forces.

COVID-19 and military justice (Uganda)

Six members of the Uganda People's Defence Force have been convicted by court-martial on charges of having tortured members of the public during COVID-19-related lockdown operations. Details here.

CYA in Beirut

As noted previously, the Lebanese military court is involved in the investigation of the Beirut port blast. How odd, therefore, to read here that months ago the military court disclaimed jurisdiction over the storage of the explosive materials. Excerpt:

"On Jan. 27, State Security asked to investigate the storage of the ammonium nitrate at the port, and five months later, instructed the government commissioner at the military court to deal with the matter. The military court, which was approached because of the substance's highly explosive nature, responded that it was not its jurisdiction."

So which is it: jurisdiction or no jurisdiction? 

A Sri Lankan saga: will justice be done?

Retired Major General Ranjith Rajapathirana has this fascinating essay in the Sunday Observer about a 1915 Ceylonese court-martial and the refusal of the civilian courts to exercise review over it. Will the authorities now exonerate Edward Henry Pedris? Excerpt:

Conclusions

1. It is evident that Pedris’ court martial was illegal on the grounds that:

a. In July 1915, King’s Courts were open and functioning in Ceylon and hence trial of civilians by courts martial was not permitted.

b. The alleged offences were committed on June 1, 1915 and whereas martial law was declared on June 2, 1915, it could not have had retrospective operation of law.

c. In any cases, the death sentence was not confirmed by the Governor of Ceylon and hence there was no lawful sentence before the Officer Commanding the firing squad to carry into execution.

2. Pedris was entitled to succeed had the Ceylon Supreme Court reviewed his sentence which it unlawfully declined while having the full power to review: vide cases mentioned above.

3. Therefore, this is a fit and proper case for the President of the Republic to exercise his power under Regulation 151(10 of the Court martial Regulation. “If it appears to the confirming authority that the proceedings of a court martial are illegal or involved substantial injustice to the accused and such authority has not confirmed the finding and sentence, he shall withhold his confirmation. If he has confirmed the finding and sentence, he shall direct the record of the conviction to be removed and the accused to be acquitted.”

4. In the circumstances, the President of the Republic can still clear Pedris’ name officially and legally under Court Martial Regulation 151(1) by publishing a proclamation in the Gazette to this effect. I would go further step and appeal the President to declare all those who died in the hands of the foreign invaders and enemies of the State from Chola times to May 18, 2009 in the Government Gazette as martyrs who were killed-in-action.

Recommendations

1. A Presidential Proclamation in the Gazette exonerating Edward Henry Pedris Esq under and in terms of Regulation 151(1) of Court Martial regulations.

2. A Presidential Proclamation in the Gazette declaring all those who were killed by foreign invaders and the enemies of the state, from Chola times to May 18, 2009, as “Martyrs killed-in-action” and to collectively award them the Desha Putra Sammanaya (Purple Heart), the highest medal currently awarded to killed-in-action/wounded-in-action servicemen.

3. Appointing a Presidential Commission to chronicle a list of Martyrs who were killed by foreign invaders/enemies of the State from Chola times to May 18, 2009, the Day of Liberation.

Although records might not be available with regard to earlier times, comprehensive records are available with regard to those who were killed in 1818, 1848 and 1915 insurrections and such heroes could be recognised individually by name.

This Presidential Commission may examine historians, military and other experts and compile a “Golden Book” in which a list of all martyrs will be exhibited. Those who are identified and entered in the “Golden Book” as martyrs should be awarded Desha Putra Sammanaya individually.

Transparency? We don't need no stinkin' transparency

A hearty Bronx cheer for U.S. Marine Corps public affairs. Consider the following excerpt from this Washington Post article by Dan Lamothe:

While military leaders say they are pursuing a culture change, they shielded details of the MARSOC case from public view. Evidence was presented at an Article 32 hearing at Camp Lejeune, N.C., in October, but the session was not announced in advance and no media covered it.

The hearing went unannounced “in accordance with service regulations that prohibit including the name of accused in routine disseminations,” said Maj. Kristin Tortorici, a Marine spokeswoman. Hearings in such high-profile cases are typically disclosed.

The lack of transparency, as well as inaccurate rumors about the case that spread in the Special Operations community, has stoked suspicions that the Marine Corps is hellbent on obtaining convictions to send a message.

Ten other Marines were punished for “collateral misconduct” uncovered during the investigation, Tortorici said. She declined to describe the punishments, which have not previously been reported.

Why is the Beirut port explosion being pursued in the military legal system?

This news account reports that a Lebanese military magistrate is investigating the Beirut port explosion. Why is this case in the military court system?

Dans la foulée de la cour martiale du juge Dutil, un grand ménage s'impose

Notions élémentaires de justice 

Partout sauf dans les forces armées canadiennes, les juges nommés par le gouvernement fédéral doivent rendre compte de leur conduite auprés le Conseil canadien de la magistrature, qui a le pouvoir d'enquêter et de statuer sur les plaintes. Agir de la sorte permet au tribunal de préserver l’honneur de l’institution et aux juges de protéger leur image publique afin de préserver leur prestige et leur autorité tout au long du processus d’enquête. Le principe est simple: le public doit avoir confiance en la justice.

Dès sa phase d’ouverture, la cour martiale du juge militaire colonel Mario Dutil a révélé de graves défauts structurels et organisationnels des cours martiales ainsi que des questions majeures relatives à l’indépendance de cet appareil judiciaire. Cela ne peut que conduire à une grave perte de confiance en l'équité du système de justice militaire tant pour les militaires que la société civile.

Paquet militaire

Le colonel Dutil fut nommé juge militaire en chef en 2006. Le juge militaire en chef a l'autorité judiciaire sur tout le personnel militaire œuvrant dans le système de justice militaire; cela comprend la police militaire, le directeur des poursuites militaires, le directeur des services d'avocats de la défense, les quatre autres juges militaires et le personnel administratif de la cour martiale.

En 2018, il a été inculpé de sept (7) infractions au Code de discipline ainsi qu’une l'accusation de fraude liée à une prétendue réclamation de dépenses de voyage selon le Code criminel du Canada. Le 10 juin 2019, soit le premier jour de la cour martiale, le Directeur des poursuites militaires a retiré quatre des infractions au Code de discipline. Une réduction subite de 50% des infractions au tout départ du procès laisse planer des doutes, savoir : 1) Est-ce que le procureur de la Couronne a d’abord examiné le dossier de manière objective pour déterminer la probabilité raisonnable de condamnation pour chacune des infractions? 2) Est-ce que le procureur de la Couronne a porté  une attention vigilante pour déterminer si l’intérêt public serait servi par la tenue d’une poursuite?  Cette cour martiale jette un faisceau lumineux ponctuel sur l’organisation même de la Direction des poursuites militaires qui tout comme le parquet militaire et la police militaire manque véritablement d’indépendance.  A titre d’exemple, en Angleterre et en Australie, le Directeur des poursuites militaires est un civil. C’est lui qui décide d’engager ou non des poursuites judiciaires, sans en référer – directement ou indirectement a la chaine de commandement.

Les accusations portées contre le juge Dutil sont directement reliées à l’exercice de ses fonctions comme juge militaire. Dans les circonstances, il est donc presque impossible d’attribuer l’impartialité et l’objectivité à tous ceux qui ont joué ou jouent un rôle dans cette affaire, de sorte que même si le juge Dutil devait être acquitté de toutes les accusations, il est peu probable qu’il puisse véritablement reprendre ses travaux et assumer à nouveau l'autorité morale requise d'un juge militaire en chef après avoir été soumise à une expérience aussi humiliante.

No lawyer, no case (for the moment)

Uganda's Constitutional Court had before it a challenge to the jurisdiction of the court-martial over a civilian (a former Member of Parliament). Now what? The appeal is dismissed for lack of prosecution. According to this account, the appellant's lawyer was not admitted to practice before the court, and he was the only lawyer listed on this papers. Excerpt:

“During interaction in this court, Mr Ronald Iduuli (defence lawyer) said he did not have a practicing certificate, he cannot continue as counsel in this petition since he has no audience. We would have adjourned this case to another date to enable the applicant instruct another lawyer but we are unable to do so since the only address on record is Ojok Advocates,” the court ruled.

The justices, however, added that Mr [Tony] Kipoi was at liberty to restate his application if he desired to do so.

For your military law bookshelf

Wing Cdr (Ret) Dr. U C Jha (contributor to Global Military Justice Reform) and Professor K. Ratnabali of the University of Delhi have a new book out: Martial Law in India: Historical, Comparative and Constitutional Perspectives.

Congratulations to both authors on this important achievement!

Ivorian military justice explained

Yeclo has this useful explainer by the Abidjan Military Court about the functions of the military prosecutor in Ivory Coast. (Google Translate will do a good job with the French original.) Excerpt:

The Government Commissioner is only competent to prosecute gendarmes, the military and the police, that is to say to find that they have committed faults against the criminal law, to investigate, arrest and take to prison if the facts are proven and then judge them. . . .

It follows from there that when a soldier, gendarme or police officer is the victim of acts committed by civilians, it is not the Government Commissioner who is in charge of the case but the Civil Prosecutor.

So when a soldier is attacked or injured or killed on a mission by strangers or civilians, it is the Civil Prosecutor who is competent.

Happy Coast Guard Day -- 230 years and still going strong

HRW's UPR suggestions for Lebanon

Human Rights Watch has made a number of suggestions in connection with the Universal Periodic Review for Lebanon. Here is what the NGO had to say about military justice (footnotes omitted):

Military Courts 

12. Lebanon continues to try civilians – including minors – in military courts. At least two civilians have appeared before military courts on charges related to their involvement in the nationwide protest movement that began on October 17, 2019.

13. A 2017 Human Rights Watch investigation documented many due process and international law violations inherent in trying civilians before military courts in Lebanon. Many of the judges are military officers appointed by and subordinate to the defense minister, undermining the independence of the court. Those who have stood trial in military courts describe incommunicado detention, interrogations without a lawyer, ill-treatment and torture, the use of confessions extracted under torture, decisions issued without an explanation, seemingly arbitrary sentences, and a limited ability to appeal.

14. Lebanon should:

· Amend article 24 of the Code of Military Justice of 1968 to remove civilians and all children from the jurisdiction of the military courts.

Corruption and military justice

Is corruption a reason to reform military courts? The authors of this Jakarta Post article think so:

[M]ilitary court reform is pressing to build accountability within the defense sector. The disclosure of alleged graft cases in the defense sector is often hampered under the pretext of military court jurisdiction, as occurred in the procurement of Sukhoi jets.

To this end, a revision of Law No. 31/1997 on military courts is urgently needed, bearing in mind that this was a mandate of the People’s Consultative Assembly Decree and Law No. 34/2004 on the Indonesian Military (TNI). Without military court reform, the modernization of Alutsista in Indonesia will face potential fraud.

See you at 0900 today

Global Military Justice Reform Town Hall 6, with Dr. Aifheli E. Tshivhase
Time: Aug 3, 2020 09:00 AM Eastern Time (US and Canada)

Join Zoom Meeting
https://us02web.zoom.us/j/6935283348

Meeting ID: 693 528 3348

For your military justice bookshelf

Col. Nicolás Marchal Escalona

Confilegal has this informative interview with Col. Nicolás Marchal Escalona, whose new book (co-authored by Óscar Manuel Díez Herrero), Disciplinary Regime of the Civil Guard: Jurisprudence of the Fifth Chamber of the Supreme Court, has just come out. Contrary to the news report, the download is not free; it will run you €5.00. Excerpt (tweaked Google Translate version):

The latest declarations of the Civil Guard Associations have been claiming that the Military Penal Code does not apply to the Civil Guard. What is your opinion?

It is a provision of our regulations, derived from the legal nature of the Corps, regarding which there is no room for personal opinions. However, objectively considered and as I said before, only Title I is applicable in any case (of the discipline), reserving the application of the rest to NOT being acts of the service performed in the exercise of functions of a police nature.

The legal nature of the Civil Guard is military. One need only look at our close surroundings, in which police officers from many countries have adopted the gendármic model (civilian and other military police forces): France, Spain, Portugal, Italy, the Netherlands.

It is a system that has proven its effectiveness over the years. In Spain there are two police officers, at the national level, who support each other and, at the same time, constitute a healthy competitive stimulus for each other.

And it is necessary to add that, in time of war and a state of siege, the Civil Guard would be fully integrated into the Ministry of Defense, constituting a "fourth" army.