Report on Investigative Case File Reviews for Military Adult Penetrative Cases Closed in Fiscal Year 2017. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, October 2020.
Saturday, October 31, 2020
Friday, October 30, 2020
Disbanding the special forces Naturally, the fate of Australia’s special forces should ultimately be a captain’s call from Australia’s civilian leadership — perhaps the prime minister himself. And here, there is a compelling argument to be made that the command be disbanded. To some, this might appear a radical suggestion — a sweeping change without precedent. But military units have been moved, shuffled, re-branded, disbanded and reactivated frequently throughout Australia’s history. Surely, a pattern of war crimes allegations is as good a reason as any to make some major institutional changes. The Australian Defence Force will, of course, still require a special operations capability for complex operations abroad. Special forces do provide an advanced infantry skill set that is sometimes useful for policymakers — be it for a counter-terrorism raid or light-footprint reconnaissance tasks. But these needs can be met without continuing to feed billions of dollars to an elite force that is isolated from the rest of the military.
Thursday, October 29, 2020
Wednesday, October 28, 2020
This preliminary study is the first of its kind review of the Canadian military's sexual assault cases. It yields several important - if not troubling - findings such as:
- First, the conviction rate for the offence of sexual assault by Canadian courts martial is dramatically lower that the rate in Canada's civilian criminal courts.
- Second, the difference between acquittal rates in sexual assault cases in these two systems appears to be even larger.
- Third, since Operation HONOUR [The military mission to prevent and address sexual misconduct within its ranks] was launched in 2015, only ONE soldier has been convicted of sexually assaulting a female member of the military by the military justice system. One other conviction was overturned by the Court Martial Appeal Court of Canada (CMAC).
- Fourth, plea bargains by which an accused could avoid Criminal Code convictions by pleading guilty to a Code of Service Discipline like Conduct to the Prejudice of Good Order and Discipline have been used in some cases involving aggressive sexual attacks.
- Fifth, sanctions for even these serious sexual attacks resulted in fines and reprimands.
- Sixth, the decisions of military judges in some cases suggest a 'critical failure' on their part to recognize the Canadian military's culture of hostility to women documented in the May 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Forces by the Honorable (retired Supreme Court Justice) Marie Deschamps.
Australian special forces soldiers were fuelled by "blood lust" when they tortured and executed prisoners in Afghanistan and then covered up their actions, according to a briefing handed to military chiefs which likened the conduct of some troops to that of American soldiers in Abu Ghraib. The confidential report was commissioned in 2016 by then chief of army Angus Campbell and is the most detailed and significant internal military dossier to be aired about the special forces' war crimes scandal that took place during the war in Afghanistan between 2001 and 2015. It was the catalyst for the soon-to-be-completed four-year Inspector-General inquiry into war crimes by senior judge Paul Brereton [left].Watch for high seas when Justice Brereton's report is finally made public.
Tuesday, October 27, 2020
On Friday, 23 October 2020, military judge Commander S. Sukstorf handed down her written reasons for judgment in R v MacPherson and Chauhan and J.L., 2020 CM 2012.
This is the most recent judgment in what has now been an 8-month examination of military judicial independence under the Code of Service Discipline for the Canadian Forces.
Global Military Justice Reform contributor Rory Fowler offers some observations here.
The judgment in MacPherson et al. will not be the last word on the matter. At present, the court martial judgments in R v Edwards, 2020 CM 3006, R c Crépeau, 2020 CM 3007, R c Fontaine, 2020 CM 3008, and R v Iredale, 2020 CM 4011, have been appealed by Director of Military Prosecutions (DMP), on behalf of the Minister of National Defence, and the appeal for R c Crépeau is also the subject of a cross-appeal. By order of the Chief Justice of the Court Martial Appeal Court of Canada (CMAC), dated 19 October 2020, these appeals will be heard together before a bilingual judicial panel.
It is entirely possible, if not likely, that MacPherson et al. will be added to that docket. Those appeals likely will not be heard before January 2021.
Contrary to prior dire predictions that the court martial process would grind to a halt in the wake of Edwards, Crépeau, Fontaine, and Iredale, the judgment in MacPherson et. al., in the wake of the decision by Chief of the Defence Staff (CDS) on 15 September 2020 to suspend his impugned Designation Order of 2 October 2019, has set the stage for courts-martial to proceed, at least in the near future.
What the CMAC will make of the issues being raised in the appeals is an entirely different matter.
Hamas authorities convicted the three activists under military law, rather than the civilian penal code. The conviction — weakening revolutionary spirit — harkens back to statutes encoded in 1979 by the Palestine Liberation Organization, well before the establishment of Palestinian civilian legal institutions in Gaza and the West Bank. “Bringing civilians before the military courts is a clear violation of the Palestinian Basic Law,” the detainees’ defense said in a statement on Monday. Human Rights Watch director for Israel and Palestine Omar Shakir hailed the activists’ release in a tweet, but called the court’s decision to convict them “outrageous.”
Monday, October 26, 2020
Saturday, October 24, 2020
Friday, October 23, 2020
Thursday, October 22, 2020
Tuesday, October 20, 2020
Monday, October 19, 2020
Hypotheticals worth pondering include whether General [Mark A.] Milley could have been prosecuted had he refused to walk with President [Donald J.] Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?
Friday, October 16, 2020
Retired colonel Michel Drapeau, who is now a lawyer specializing in military cases, says this latest dispute over Canada’s military justice system underscores what he believes is a desperate need for Parliament to intervene and launch an overhaul. Drapeau has long argued that military judges are not impartial because they are, first and foremost, members of the Canadian Armed Forces. He says Vance’s order simply confirmed that fact in a way that could not be ignored. "Up until then, they probably looked at themselves as being independent," Drapeau said of the military judges. "They convinced themselves they were. But now it became loud and clear. … They’re full-scale members of the military." While he supports the need for courts martial to hold military members to account, Drapeau has been pushing for years for Canada to follow allies such as Britain in making judges truly independent of the military. His ideas range from using civilian judges or former military lawyers to preside over courts martial to making a military division within the Federal Court. However, he says whatever steps are taken will need the involvement of the government and Parliament, which have tended to leave all issues involving discipline within the Armed Forces to the military. "The parliamentarians, it's up to them," Drapeau said. "They need to take this in hand, and they haven't."
Thursday, October 15, 2020
Dans sa Revue annuelle de 2018-2019 (Volume 57) la Société internationale de Droit militaire et de Droit de la Guerre a publié un savant article intitulé: « Le droit pénal militaire camerounais: combat inégalitaire entre normalisation et spécialisation d’un droit exceptionnel » par le Dr. Tokwene A Ndjokou Eloubwe Ilate de l’Université de Yaoundé II.
Selon le Dr. Ilate, le rapprochement du droit pénal militaire et du droit pénal ordinaire est une constante du discours et des joutes politiques et législatives de son pays. Il nous rappelle qu’à son époque Napoléon Bonaparte “rêvait déjà d’une justice unique pour tous les citoyens.” Or, dit-il, la réalité conduit pour des raisons diverses, propres à chaque pays, à la survie du droit pénal militaire du côté du droit pénal de droit commun. Il rajoute cependant qu'il faut "se rendre à l’évidence que les réformes observées en droit pénal ordinaire pénètrent [que très peu] le droit pénal militaire . Le défi étant de son intensité.
L’auteur conclut d’autre part que le la justice militaire au Cameroun a toujours été regardé comme un droit d’exception même si aujourd’hui le législateur s’en défend en considérant que la juridiction qui1ui applique est une juridiction à compétence spéciale. Néammoins, selon lui « quelque soit le pays où l’on se trouve, les résultants des travaux éffectués sur la justice militaire tirent la sonnette d’alarme de non-observation des Principes Décaux (voir note ci-bas) à travers le monde. »
Il conclut que la nature exacte du droit pénal militaire actuel au Cameroun est encore loin de devenir un droit pénal commun et qu'il demeure un droit pénal d’exception.
Voir « Les Principes des Nations-Unies sur l’administration de la justice par les tribunaux militaires : pour une justice militaire conforme au droit international » par la Dre Claire Callejon publié dans Droits fondamentaux, no 6, janvier-décembre 2006
Tuesday, October 13, 2020
This article captures the other view of what The Orders Project entails.
Shane Harris, Volunteer lawyers will advise military personnel who question the legality of orders during protests, election disputes. Washington Post, 9 October 2020.
The Project is conceived as a non-partisan, not-for-profit rule of law initiative.
A group of lawyers is offering advice to military and National Guard members who worry they may be given unlawful orders if deployed during protests or disputes over next month’s elections.
The protests, which followed the death of George Floyd in police custody in Minneapolis, prompted confusion among law enforcement and National Guard leaders. Some officials said they had no warning that the U.S. Park Police, which commanded the operation, planned to move against protesters and that the crowd could have been moved out of the area without the use of force.
The legal group anticipates that military personnel might find themselves in the same position this fall, and they may question whether orders they receive are legal.
Sunday, October 11, 2020
This (Canadian) Thanksgiving weekend, our community received the sad news that our friend and colleague, Major (retired) Charles Edmund Thomas passed away suddenly and unexpectedly on October 10th due to a heart attack. Edmund was a long-serving member of the Canadian Forces, principally serving as a legal officer in the Office of the Judge Advocate General (JAG) of the Canadian Forces. Edmund was a a passionate advocate who served in a variety of functions in the Office of the JAG.
In particular, he served for a number of years with Defence Counsel Services and was a diligent and resolute advocate for CF personnel brought before courts martial. Even after he retired from the Canadian Forces in 2017, his passion for military justice led him to pursue a PhD in Law at the University of Western Ontario in order to further scholarship in this field. He was working toward this goal at the time of his death.
Edmund joined the Global Military Justice Reform blog as a contributor earlier this year in order to share his years-long passion for military justice with a broader community of scholars. Edmund, you will be missed. Our condolences go out to his family and friends.
Saturday, October 10, 2020
Friday, October 9, 2020
Tuesday, October 6, 2020
Saturday, October 3, 2020
Friday, October 2, 2020
17 September 2020 I noted that the Military Commissions had a new judge.
Well the ballet (or shuffle or name your form of dance) enters the next act. The New York Times tells us that,
The recusal of Col. Stephen Keane from hearing the case at Guantánamo Bay adds another roadblock to restarting pretrial hearings in the long-running case.
He cited a "series of potential conflicts of interest."
Pioneer Daniel Boone, said to possess the eye of an eagle and the height of a mountain, was made famous during his lifetime with books such as The Adventures of Col. Daniel Boon. That book recounted battles with Native Americans and the settlement of Kentucky. Unfortunately, the book appears to have missed a few things, like Lieutenant Colonel Boone’s correct military rank and his court-martial.
Supplementing the historical record, the court-martial is chronicled in a new novel. The historical novel serves as a reminder that people have dark chapters in their life and that military justice has a long history in the U.S. After all, the first Judge Advocate General in the United States Army, William Tudor, was appointed by the Second Continental Congress on July 29, 1775.
So if you have the time and inclination, it sounds like an entertaining book. It’s always interesting for me when people successfully take up their own defense. And when folk heroes have complicated life stories.
Thursday, October 1, 2020
While we are at the store, readers are strongly encouraged to do two things: (i) add your thoughts by using the comments feature (real names only), and (ii) visit CAAFlog.org, which gets better by the day. It's an excellent site for news and views about American military justice.