No time for appeals

On Sunday, Somalia executed (by firing squad) three members of Al Shabaab who had been convicted last Thursday. No mention of appellate review in this account. Not clear what the rush was; the offenses dated back to as early as February 2017.

L’École Saint-Cyr sur la sellette

 En 2008, M. Jallah Hami, un élève-officer âgé de 24 ans en service à l ’École Spéciale Militaire de « Saint-Cyr », s’est noyé en traversant un étang dans une eau de 9 degrés (48^e degrés Fahrenheit) au cours d’un exercice organisé par ses confrères de deuxième année. Un exercice nocturne intitulé « transmission des traditions » exécuté dans l’enceinte de l’École. Pour avoir permis la tenue d’un tel exercice dans une eau glacée causant la noyade de la victime, deux officiers supérieurs de l’état-major de l’École  à l’époque, le colonel Hervé Vallerand et le général Francis Chanson, font maintenant face à la justice devant le Tribunal correctionnel de Rennes,  

Le tribunal correctionnel est une chambre spécialisée du tribunal judiciaire statuant en première instance en matière pénale sur les infractions qualifiées de délits. Les peines d'emprisonnement ne peuvent excéder les 10 années.

NOTE. The academy was founded in Fontainebleau in 1802 by Napoleon. It was moved in 1806 to the buildings of the former Maison Royale de Saint-Louis, in Saint-Cyr-l'École, west of Paris. During the Second World War, the cadets moved several times due to the German invasion. They eventually settled in 1945 in the Coetquidan military camp in Morbihan in Brittany. Students who enter Saint-Cyr as cadets are about 21 years old, and undergo three years of training. 

A noteworthy letter to the editor

Who knew that in 2020 we'd still be thinking about Breaker Morant? Consider this letter from Peter FitzSimons to the editor of The Australian. The writer was responding to a suggestion that Morant and his two co-accused should be pardoned posthumously.

Prof. Cerna on the Ameziane decision

Global Military Justice Reform contributor Professor Christina M. Cerna has written an excellent introductory note for the Inter-American Commission on Human Rights' April 22, 2020 decision in Djamel Ameziane v. United States. It can be found at 59 I.L.M. 941 (2020). The decision itself can be found here. This is the first Commission decision concerning a Guantánamo detainee.

Why we need our Farr and Flipper to undo miscarriage of military justice (in India)

 

In this detailed opinion piece re-published by Bar & Bench, I argue why the Indian government should annul two questionable military trials of the past and restore the honour of those brave soldiers who were unjustly convicted, in the same vein as the cases of Private Farr and Lieutenant Flipper.

The complete piece can be read here.

www.barandbench.com is a hugely popular legal website in India, and so is www.livelaw.in. Both are recommended for anyone who has an interest in law and legal developments.

Medical care for military prisoners

The Peshawar High Court has before it an interesting case involving the right of military prisoners to medical care in confinement. Excerpt from this article in Dawn:

Accepting a petition, the Peshawar High Court on Thursday ordered the provincial government and authorities of the Mardan Central Prison to provide medical care to the detainees, who were convicted by military courts and suffer from chronic diseases.

A bench consisting of acting Chief Justice Qaiser Rashid Khan and Justice Mohammad Nasir Mahfooz directed the authorities that if specialised treatment couldn’t be provided to the convicts inside jails, they should be shifted to the hospital.

The talk in Australia

What are people saying in Australia about the current controversy over alleged crimes in Afghanistan? For a cross-section see these comments from the Weekend Australian. [Possible paywall issue for repeat visits.] Crowdfunding for civilian defense counsel, anyone? Or UCI? Excerpt:

Some may be guilty of war crimes and some may be innocent, but they all deserve their day in an appropriate court. It is morally wrong to tar all with the same brush.

Prime Minister Scott Morrison has apologised to his Afghani counterpart for these alleged war crimes and offered compensation. Chief of the Defence Force General Angus Campbell has threatened to disband an SAS Squadron, remove a unit citation, remove awards (mass punishment) and pay compensation. All of this has been done before any crime has been proved. Have we forgotten “a person is deemed to be innocent until proven guilty”?

The Prime Minister and the CDF should now ask the Australian people for forgiveness for the stance they have taken. I expect senior counsel will have a ball with both gentlemen when this case gets to court. Could they have influenced the views of prospective jurors?

Our contributors keeping busy . . .

Global Military Justice Reform contributor Wing Commander (ret) Dr. U.C. Jha has coauthored (with K Ratnabali) a new book: Biological Weapons -- Coronavirus: Weapon of Mass Destruction? Details can be found here.

Landmark decision by Supreme Court of India on ensuring independence and efficiency of tribunals

The Supreme Court of India has (yet again) passed detailed directions for ensuring independence and efficiency of tribunals in India. A report on the same is available at this link of
The Tribune.

Relying upon existing decisions on the subject by various Constitution Benches of the Court, a slew of directions have been passed to ensure non-interference of the executive in the functioning of tribunals.

Gist of the main directions in the decision is as follows:

A. An independent authority called the National Tribunal Commission to be created for handling all issues pertaining to tribunals in India.

B. Till the time the said commission is created, matters concerning tribunals to be handled by a single wing under the Ministry of Finance and not by parent ministries against which orders have to be passed by the tribunals.

C. The Secretary of the Department against which orders are to be passed by tribunals would not be a part of the selection panel for the said tribunal. For example, the Defence Secretary would not have a selection vote for selecting members of the Armed Forces Tribunal, the Secretary of the Department of Environment and Forests would not be a part of the selections in National Green Tribunal.

D. Members would be provided an enhanced tenure of 5 years to ensure continuity.

Madras Bar Association through Mr Arvind Datar, Senior Advocate, was the lead Petitioner in the matter, and writ petitions filed by other Bar Associations were tagged with the same bunch.

Other directions can be analysed by perusing the full decision which is available here.

Military Justice review -- Canada

Nov. 27, 2020 /CNW Telbec/ - The Honourable Morris J. Fish, CC, QC, a retired Justice of the Supreme Court of Canada, has been appointed by The Honourable Harjit S. Sajjan, Minister of National Defence, as the third Independent Review Authority. As such, Justice Fish is tasked with conducting an independent review of the entire military justice system in Canada, embracing but not limited to the following matters:

The content of the Code of Service Discipline and its application by military authorities, including :

• the persons subject to the Code of Service Discipline;
• the entire body of substantive service offences, including offences of a sexual nature and offences with racial motives;
• the punishments prescribed to sanction service offences, including imprisonment and detention;
• arrest and pre-trial custody;
• summary trials by commanding officers or superior commanders, and their upcoming replacement by summary hearings;
• trials by Court Martial, including the process for preferring charges, the conduct of preliminary proceedings and of the trials themselves, and the applicable laws of evidence;
• the office and role of the Director of Military Prosecutions;
• the office and role of the Director of Defence Counsel Services;
• the office and role of the Chief Military Judge and of military judges;
• sentencing;
• appeals to the Court Martial Appeal Court and the Supreme Court of Canada;

And, 

• The military police.
• The office and role of the Canadian Forces Provost Marshal.
• The system of military grievances.

An important ministerial statement

On November 12, Ben Wallace, the UK Secretary of State for Defence, made the following statement in connection with a proposal to remove certain major crimes from court-martial jurisdiction when committed within the country:

I am today informing the House that, after further and full consideration of an earlier decision announced in February 2020 in response to the service justice system (SJS) review, I have taken a decision to maintain jurisdictional concurrency when dealing with cases of murder, manslaughter and rape when committed by service personnel in the UK.

Currently, decisions on which jurisdiction should deal with criminal offences in the UK by service personnel are made by the SJS and civilian justice system (CJS) policing and prosecutorial authorities on a case-by-case basis. My intent is to seek views on what improvements can be made to the protocols which guide those decisions and which have developed since Parliament last expressed its view on this subject.

In considering the recommendations made by the service justice system review, I have come to the conclusion that, having agreed to take forward 79 other recommendations, including assurance around the quality of investigations, the SJS is capable of dealing with these offences when they occur in the UK, as well as overseas. The service justice system review strongly supported the continued existence of the SJS and sets out a sound roadmap for its future.

I am not, therefore, content to accept the first recommendation in the review which would undermine the principle of concurrency between the SJS and CJS which is set out in the current legislation. While there will not be a presumption that either system takes primacy over the other, I plan to retain the current role of the Director of Public Prosecutions (in relation to cases in England and Wales) of having the final say of where a case is tried in the unlikely event of disagreement about where the case should be handled.

In light of this decision, my Department will lead an exercise with SJS and CJS policing and prosecutorial authorities to revise all current guidance around jurisdiction for criminal offending by service personnel in the UK. That exercise will include public engagement on factors to be considered relevant in guiding the case-by-case allocation decisions. Parliament will have an opportunity to consider these matters when parliamentary time allows, and I intend to bring forward proposals to place the arrangements for allocating cases between the SJS and CJS on a statutory basis.

My Department will be engaging with the devolved Administrations in Scotland and Northern Ireland to consider the corresponding arrangements that should exist there.

Afghanistan Inquiry Report by the ADF IG

The Australian Defence Force Inspector-General's Afghanistan Inquiry Report is available here.

Equal justice under law

The challenge of administering military justice evenhandedly comes in many forms. Reports of harsher justice for Black personnel have been worrying (emphatically not a new issue), and it is often said that there are "different spanks for different ranks." The current proceedings involving an Air Force major general may show a new willingness, in one service branch, to move in a different direction. Is there an "old boy" network in the Air Force that takes care of its own? If so, what sbout the other U.S. armed forces? Consider the views of retired Air Force judge advocates Don Christensen, Joshua Kastenberg and Rachel VanLandingham in this Task & Purpose article.

A retired Indian Army lieutenant general speaks out on politicization

Retired Lieutenant General H.S. Panag, formerly a member of the Armed Forces Tribunal, has given a remarkable commentary on politicization of his country's armed forces. He refers powerfully to recent actions by the Chairman of the Joint Chiefs of Staff in the U.S. and Australia's Chief of Defence Force. Excerpt:

In cases where action is taken, the conduct of the court martial is so shoddy that it does not withstand the scrutiny of the Armed Forces Tribunal and the Supreme Court. A case in point is the court martial of the accused in the Machil fake encounter case — the sentence of the accused was suspended by the Armed Forces Tribunal. In the Dangari fake encounter case, the Supreme Court was deliberately misled by the government/Army to take over the case. They were well aware that a court martial was categorically time-barred under Section 122 of the Army Act. If that was not enough, the court marital too was conducted and stiff sentences awarded. The authorities knew well that it was illegal the accused will be acquitted during review by the Armed Forces Tribunal/Supreme Court.

Happy Thanksgiving

New Zealand soldier to face trial by Court Martial for espionage

New Zealand's Director of Military Prosecutions, Brigadier Lisa Ferris, has laid 17 charges against a New Zealand soldier, including multiple counts of espionage, attempted espionage, accessing a computer system for dishonest purposes, and possessing an objectionable publication. The charges will be tried in the Court Martial of New Zealand, which is a standing court of record, presided over by a civilian Judge with military members as the triers of fact. This appears to be the first occasion that such a charge has been laid in modern New Zealand history. The only previous comparable case was a charge brought (unsuccessfully) against a senior public servant under the Official Secrets Act in the 1970s, for allegedly passing secrets to the KGB. 

Not a good couple of weeks for the armed forces "down under". Watch this space for developments...

Calendar item--DADT 10 years later

For your agenda.

Fri Dec 04, 12:00 PM - 1:30 PM EST (1 Hour, 30 Min)
Plenary: Ten Years Later: The Repeal of “Don’t Ask, Don’t Tell”

From 1994 until its repeal under the administration of President Barack Obama, tens of thousands of LGBTQ members of the military were forced to live in the closet or face discharge because of “Don’t Ask, Don’t Tell.” Ten years after the repeal of this policy, we speak with the lawmakers, activists, and brave service members who worked to ensure that LGBTQ could serve out and proud. Panelists will provide a behind-the-scenes look at the repeal of the law, the impact it had on servicemembers and veterans, and how LGBTQ people serving openly is affecting the military and U.S. society-at-large.

Tackling discrimination: the role of military trade unions

On November 18, 2020, the European Organisation of Military Associations and Trade Unions (EUROMIL) sponsored a most informative panel discussion on the role of military associations and trade unions in tacking discrimination in the armed forces. You can view it here.

ASFASPRO seeks work hours relief at Strasbourg

The Association of Noncommissioned Officers of the Spanish Armed Forces (ASFASPRO) has filed a case with the European Court of Human Rights. According to the association:

Recently, ASFASPRO has filed a lawsuit with the European Court of Human Rights (Strasbourg) against Order DEF/1363/2016, of July 28, which regulates the working day and the regular schedule in the place of destination of members of the Armed Forces. This ministerial order does not correctly regulate night work, location services and, in addition, limits the additional rest that compensates for mandatory activities that generate excess working hours to 10 days. This deficient regulation directly affects the right to health protection and the reconciliation of personal life with work life of the soldier, being contrary to the provisions of the European Convention on Human Rights and Directive 2003/88/EC on the organization of working time. The National Court dismissed the appeal filed by ASFASPRO in 2018. After the inadmissibility of the corresponding appeals in cassation in the Supreme Court and of amparo before the Constitutional Court, this necessary claim is possible before the European courts. The activities of military personnel are multiple and range from instruction, guards and services to maneuvers, navigation and operations, among others. The hundreds of hours that the soldier does, exceeding the annual working hours established for the rest of public employees, continue without being compensated, neither in remuneration nor in rest time .

Current issues in military justice

The Editor recently spoke with members of the National Museum of American Jewish Military History. You can find video of the event here.

United States v. Blankenship -- a historical note

What do lawyer Melvin Zurier and Paul Blankenship have in common? Well, it is United States v. Blankenship, 20 C.M.R. 881 (A.F.B.R. 1955) (1955 CMR LEXIS 243), rev’d 7 C.M.A. 328 (C.M.A. 1956).

The Providence Journal tells us that,

He was just 25 and three years out of law school when Melvin Zurier was handed a landmark case.   

 

Sixty-four years have elapsed and he has participated in hundreds of cases since that time, but the remarkable details about the United States vs. Paul H. Blankenship remain clear in his mind.

Blankenship had been prosecuted and convicted at court-martial for premeditated murder and had been sentenced to life imprisonment. The Air Force Board of Review (precursor to the current Air Force Court of Criminal Appeals) affirmed the findings and sentence. The Board addressed two significant issues: the extent to which a psychiatrist could be questioned about the accused’s mental state and statements made to the psychiatrist by the accused which were admissions.

One of the issues became Blankenship’s mental state at the time of the alleged events. During a psychiatrist’s testimony one of the members had a few questions for the witness. The evidence finished and arguments heard, the Law Officer (an old term for now the military judge) instructed the Members and sent them to deliberate. About three hours later the Members returned and the same member asked for the psychiatrist’s testimony to be reread (a process allowed even today) and the witness was recalled (again a process allowed even today). But here is where matters got out of hand. The Member engaged in a lengthy “examination” of the witness as did some of the other members. In the process, 

A defense objection to testimony as to the accused's statements to Dr. Green was overruled.  Defense counsel then examined Dr. Green on his opinion as to the accused's ability to adhere to the right.  The doctor stated that on the basis of his examination, which included the statements made to him by the accused, he believed that, while the accused was not in complete control of his mental faculties when he committed the acts charged, he could still entertain a specific intent and premeditate.

 

7 C.M.A. at 333. The Board affirmed the findings and sentence, so an appeal was taken to the Court of Military Appeals (C.M.A.) (which we now call the Court of Appeals for the Armed Forces), upon review, C.M.A. addressed,

The first question for our consideration is whether Colonel T's conduct and statements deprived the accused of a fair trial. In military law, a court member has a right to question a witness.  United States v Sears, 6 USCMA 661, 20 CMR 377; United States v Smith, 6 USCMA 521, 20 CMR 237. He can also request that a witness' testimony be reread, or that the witness himself be recalled and reexamined. United States v. Parker, 7 USCMA 182, 21 CMR 308. In the latter instance, the request can be made even after the court has for a time deliberated upon the findings. United States v Parker, supra. When exercising these rights, however, a court member cannot become an advocate or a partisan for either side.  If he does, he is "no longer competent to serve." United States v. Sears, supra, page 665. Here, Colonel T. questioned every person who Appeared as a witness.  Some of his questions were pertinent; others were either frivolous or evinced a misunderstanding of the requirements of relevancy. However, the number and the general relevancy of Colonel T.'s questions need not give us pause.  The crux of our problem is whether he judged the accused according to the evidence and without bias or prejudice. 

          Ultimately the C.M.A. concluded Col T’s actions cast substantial doubt on the fairness of the trial and set-aside the findings and sentence, with permission to conduct a new trial if appropriate. 

          Back to Lieutenant Zurier who was appointed for the retrial. “He was just 25 and three years out of law school when Melvin Zurier was handed [this] landmark case. His, 

top priority was to interview witnesses to the murder in Japan. Since two years had elapsed, they were now living in places scattered around the globe. Some were still in the military and others were now civilians, including the doctor who had first interviewed and photographed the defendant as he was taken into custody.

 

Zurier announced his intentions to start from scratch, interview them all, and “try the case from the very beginning."

 

By the time the case went to trial, Blankenship was so loyal to his legal counsel that Zurier remembers having to restrain his client in court when the prosecutor began verbally attacking Zurier, saying, “My opponent doesn’t know this and he doesn’t know that.” Blankenship “began to get up and go after” the prosecutor.

 

          That get up and go of course is not a reaction any defense counsel prefers from the client at trial. Over two weeks Zurier called “scores of witnesses” and several experts.

 

“We had several psychiatrists, all hired by the Air Force," Zurier says. "One of them had said that he [Blankenship] was not capable of forming an opinion to kill him because of toxic psychosis. Others said that he was swinging in self-defense. 

          Zurier observed that Blankenship as a civilian could not have afforded the costs of the Air Force paid defense and would likely have been convicted and remained in jail. 

Blankenship was found not guilty on retrial. 

          Zurier left active duty in 1957 and was in active legal practice until this year. He called the case “the most meaningful” of his career, but it was his last criminal case in the career that followed.

The Army is forced to consider mental health issues for discharge upgrades

The U.S. Army has agreed to systematically review discharge upgrade requests for Soldiers with mental health disorders and bad-paper discharges. A class-action lawsuit out of U.S. District Court in Connecticut alleged the Army Discharge Review Board had failed to follow Secretary of Defense guidance, which required the board to consider mental health conditions as part of its review. Of interest, the two Connecticut plaintiffs had their discharges upgraded to honorable within the last few years. So a great result for these two veterans, and for veterans separated after October 7, 2001, with bad-paper and a mental health condition. 

A sad update to the Australia war crime allegations

The Mail reports that,

Nine Australian soldiers have taken their own lives in just three weeks amid the release of a damning report into alleged war crimes in Afghanistan.

The four-year inquiry uncovered a 'shameful record' of unlawful killings which took place outside the 'heat of battle'.

A redacted version of the report was released on Thursday after weeks of discussion about its contents, and sparked fierce global condemnation.It is believed the stress of the inquiry - which uncovered evidence of 39 murders by Australian Special Forces - played a part in some of their suicides.

'I think some of the media [reports of alleged war crimes] has been painting everyone with the same brush and people seem to have forgotten about innocence until proven guilty – and that adds additional stress,' ex-infantry soldier and veterans' mental health advocate Neil 'Wally' Wallace told The Advertiser.

There is no suggestion the nine late ADF members had anything to do with the alleged war crimes documented in the report.

COVID-19 and military justice (Guantánamo)

A first for GITMO: a classified hearing conducted by videolink. Carol Rosenberg has the story of "Zoom Court" here in The New York Times.

There were plenty of complications. The judge, who was assigned to the case during the pandemic, has never set foot in the actual courtroom at Camp Justice, or held an open session or seen Mr. Hadi to advise him of his rights at the start of a hearing. Defense lawyers on one side of the 1,300-mile divide between Washington and the naval base could not consult during the hearing with those on the other. The same was true for prosecutors. The lawyers at Guantánamo had to first undergo a 14-day, military-monitored and enforced quarantine inside individual trailers at the base. But the fact of the hearing on Tuesday marked a watershed. No judge in the slow-moving, troubled military commissions cases had ever presided remotely from a satellite location in the United States. It was also the first hearing of the pandemic after months of cancellations by military judges. All of the lawyers in the U.S. courtroom — whose location was secret — spoke through masks, according to participants. At Guantánamo, a prosecutor and defense lawyer took theirs off when each spoke from the lectern opposite the judge’s empty chair.

Business as usual in Lebanon

Lebanon continues to misuse its military courts to suppress civilian dissent, as this Associated Press report chronicles. Excerpt:

"Military courts have no business trying civilians," said Aya Majzoub, a researcher with Human Rights Watch. The international rights group has called on Lebanon's parliament to end the troubling practice by passing a law to entirely remove civilians from the military court's jurisdiction.

10 biggest global military justice stories of 2020

As the year draws to a close, Global Military Justice Reform readers and contributors are invited to nominate events for a "Top 10 of 2020" list. Please send in your suggestions by post or comment. The Editor will start the bidding with the Australian special forces controversy that has recently exploded in the headlines. Your turn. "Operators are standing by."

(Not Military Justice but) an important take on political ideology and its effect on the military of a secular democracy

Major General Yash Mor, who recently retired from the regular Indian Army, writes a detailed piece for The Print on the impact of political leanings and ideology on the military of a secular democracy.

While the debate has been raging in the Indian backdrop on the subject with supporters and dissenters of the idea on both sides of the moot point whether politics has affected the military in a country which is supposed to be (and largely also perceived to be) apolitical, he makes some very important observations in his opinion piece.

The full piece can be read here.

An excerpt from the article:

“...The Indian Army has a long history of being not only apolitical but also religion neutral. For ages, soldiers from all communities and religious backgrounds have been part of the Army. Although the British did establish regiments on lines of castes and regions, by and large, the character of the Army remained mostly irreligious. The British did get a taste of mixing religion when the ‘pure’ Brahmin units went renegade and started the 1857 mutiny. The reaction of the British was swift and very harsh, because they not only disbanded a large number of Brahmin units but also gave extreme punishments- ordering captured soldiers to be shot dead after pretend court martial proceedings.

The British analysed the situation and immediately transformed the regimental system of the Army. All the native Infantry regiments based on religious denomination were disbanded and consigned to history without a trace.

The British transformed the regimental system to instil discipline in the forces. Since Independence, the Army brass has introduced various measures, big and small, to have successfully ensured that forces are governed by their own code. However, recent developments show a worrying trend....”

Prosecution of war crimes by Australian special forces – a crisis of confidence?

 

On 19 November 2020 Australia’s Chief of Defence Force, General Angus Campbell, announced that a high-level inquiry into allegations of offending by special forces soldiers of the Australian Special Air Service Regiment (SAS) in Afghanistan had found “credible information” that 25 current or former soldiers were involved in serious crimes, either as perpetrators or accessories. The report recommends that a total of 36 incidents be referred to the Australian Federal Police for criminal investigation, including allegations that 19 soldiers murdered 39 Afghan prisoners or civilians. The report suggests a criminal culture in the relevant unit. As an immediate consequence, General Campbell has announced that 2 Squadron Australian SAS “would be struck off the Army’s order of battle”, with a view to raising a new squadron with a new name and culture.

Shocking as these allegations and revelations are in and of themselves, the process which has now been put in train raises interesting questions for observers of Australian military justice and military justice systems in general. A clear signal has been given that the soldiers who stand accused of murder will not face a general court martial under Australia’s Defence Force Discipline Act 1982 (Cth) (“the DFDA”), but will be tried by jury in the ordinary criminal courts. This is in stark contrast to the approach taken by the British Army, which prosecuted seven soldiers for various alleged war crimes, including the murder of Baha Mousa, in the UK’s Court Martial in 2006. What, if anything, can we take from the differing approach?

Murder is an offence cognizable under Australian military law. Australia is a federal State – federal jurisdiction is held by the Commonwealth of Australia (“Cth” for short) under Australia’s written constitution. However, criminal law is ordinarily a matter within the jurisdiction of the constituent states, eg New South Wales. So this raises the question of how to deal with “garden variety” criminal offences committed by Australian forces (which are of course federal in nature) outside Australia. The solution is section 61(3) of the DFDA, which provides that an Australian soldier commits a “Territory offence” if he or she engages in conduct anywhere in the world which would be an offence if committed in Australia’s Jervis Bay Territory. The Jervis Bay Territory is a small territory under federal jurisdiction, about 200 km south of Sydney. Territory offences includes offences under the criminal law of the Australian Capital Territory (not part of the Commonwealth), eg the Crimes Act 1900 (ACT) as well as federal offences under the Commonwealth’s Criminal Code Act 1995 (Cth) (“the Criminal Code”).

Under section 12 of the Crimes Act 1900 (ACT), a person commits murder if he or she causes the death of another person, intending to cause death or serious harm. The punishment is life imprisonment. It follows that murder is a Territory offence, and therefore a service offence which can be tried under military law. It is also an offence under section 62 of the DFDA to order or command an Australian soldier to commit a service offence, eg an order to murder a prisoner.

Under section 87 of the DFDA, if the Director of Military Prosecutions “believes, on reasonable grounds, that a person has committed a service offence”, he or she may request the Registrar of Military Justice to convene a general court martial. A general court martial consists of a president holding the rank of colonel (or equivalent) and four officers with prescribed experience who are senior to the accused. The court martial is directed on the law by a judge advocate, nominated by the Judge Advocate General (JAG). Under the DFDA, the JAG must be a Judge of a federal court or a state supreme court. The present incumbent is Rear Admiral the Honourable Justice Michael Slattery. Under section 68 and Schedule 2 of the DFDA, a general court martial has jurisdiction to impose a sentence of imprisonment, including imprisonment for life. It follows that, in principle, the war crimes alleged against the Australian special forces soldiers are within the jurisdictional competence of a general court martial, just as they were in the British cases mentioned above. The military jurisdiction offers the distinct advantage of permitting “garden variety” murder charges to be laid. If the prosecution were able to prove intentional killing, it would be for the accused soldier to raise a defence based on, for example, Act of State doctrine or self defence.

The decision to opt for civilian jury trial adds certain complications to the matrix. It is not possible to allege “garden variety” murder outside the military justice context, given the extraterritorial nature of the allegations. The Commonwealth Director of Public Prosecutions (DPP) will need to rely on Chapter 8 Division 268 of the Criminal Code, which was inserted by the Commonwealth Parliament by the International Criminal Court (Consequential Amendments) Act 2002 (Cth) at the time Australia ratified the Rome Statute, to ensure that any Australian soldiers accused of war crimes could be tried in Australia, thus diminishing the prospect of a prosecution by the ICC due to the international criminal law principle of complementarity.

Given the Afghan context, the killings alleged to have been carried out by Australian special forces will need to be charged under section 268.70 of the Criminal Code. This provision creates the federal offence of war crime – murder in the context of a non-international armed conflict. It will be possible for the Commonwealth DPP to bring a charge alleging such an offence before a jury in, for example, the Supreme Court of New South Wales, because a federal offence which is not committed in any state or territory can nevertheless be tried in a state or territory court under section 70A of the Judiciary Act 1903 (Cth). The prosecution will need to prove that:

(a)         the soldier intentionally caused the victim’s death.

(b)         the victim was neither taking an active part in the hostilities nor was a member of an organised armed group. This includes anyone who was hors de combat at the relevant time. Under the Criminal Code, a victim is hors de combat if he or she is a prisoner or detainee and is either incapacitated by wounds or has clearly surrendered and is not resisting.

(c)          the soldier knew of, or was reckless as to, the factual circumstances establishing that the victim met the criteria mentioned above.

(d)         the soldier was taking part in a non-international armed conflict and knew that or was reckless as to that fact.

It can immediately be observed that these elements place a heavy burden on the prosecution. Furthermore, they are matters on which the civilian jurors, randomly selected from the relevant panel and undoubtedly lacking any understanding of military operations, will need to be satisfied beyond reasonable doubt. By way of contrast, a prosecution in a general court martial could rely on “garden variety” murder and the evidence would be heard by officers (independent of the accused’s chain of command) who have a much better chance of understanding the legal and factual context, given their training (including training in the law of armed conflict) and military experience. From a purely commonsense perspective, this inevitably raises the question as to why the Australian authorities would choose to pursue this matter as a jury trial under the Criminal Code, rather than convene a general court martial.

The answer of course is likely to have a great deal to do with politics and public perception. A genuine question can be raised as to whether offences of the nature of those alleged against Australia’s special forces are properly a matter for trial by a military court. Principle 9 of the Yale Draft of the Principles Governing the Administration of Justice Through Military Tribunals refers to this viewpoint as a “growing tendency” in the international community and suggests that:

With the exception of circumstances permitted by international humanitarian law, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.

The concern at the root of this “growing tendency”, of course, is based on whether the armed forces can be trusted to try their own in these most egregious of cases, where the offending brings shame on the institution itself and the inevitable penalty for a soldier who is convicted involves a substantial period of imprisonment.

On the other hand, it can be argued that the trial of offences such as those alleged is a fundamental aspect of the raison d’être for general courts martial. Why do we have such courts if they cannot deal with offences of this nature? Certainly they would need to be able to do so in wartime conditions. Does the apparent decision to sidestep the military justice system in Australia point to a crisis of confidence in the legitimacy of that system? If that is the case, would it not be better to fix the system rather than avoid using it in a case which seems to warrant its use? These are all questions which the relevant Australian decision-makers might wish to ponder before committing to the jury trial pathway.

A major UCMJ ruling in Washington

Federal District Judge Richard J. Leon today ruled that the part of the Uniform Code of Military Justice that confers court-martial jurisdiction over retirees is unconsitutional. The decision came in Larrabee v. Braithwaite. Prof. Stephen Vladeck of the University of Texas Law School was lead counsel for the plaintiff. [Full disclosure: the Editor was co-counsel.]

More on Australia war crimes

We reported an inspector general investigation about Australian forces in Afghanistan here.

Australian Strategic Policy Institute has a follow-up, by M. Cormier and A. Duxbury, Pathways to prosecution for Australian soldier's crimes in Afghanistan.

Yesterday it was confirmed in the Brereton report that there’s ‘credible information’ to substantiate the unlawful killing of 39 people by Australian special forces personnel in Afghanistan. These shocking allegations led Prime Minister Scott Morrison to announce last week that a special investigator’s office will be established to assist the Australian Federal Police to investigate these alleged crimes. The information contained in the Brereton report will now serve as a guide for the special investigator’s office, which will focus on gathering evidence that will be admissible in criminal prosecutions.

If a decision is made to implement the recommendations of the Brereton report and prosecute members of the Australian Defence Force, where can they be tried and under what law?

There are two main options—one involving criminal trial in the civilian court system, and the other court martial via Australia’s military justice system. The Brereton report recommends that any criminal investigation and prosecution of alleged war crimes follow the civilian route, with the involvement of the AFP and the Commonwealth Director of Public Prosecutions. Given the availability of the military justice system, why has the report recommended this course of action?

Defence Administrative Order and Directive 9005-1 - Sexual Misconduct Response

On 18 November 2020, the Canadian Forces quietly cancelled Defence Administrative Order and Directive (DAOD) 5019-5 - Sexual Misconduct and Sexual Disorders, and replaced it with DAOD 9005-1 Sexual Misconduct Response.  The term 'quietly' is used above as, unlike other recent significant policy changes in the Canadian Forces (CF), such as the proposed changes to the 'naval rank designations' for junior non-commissioned members, the policy change was not accompanied by a public announcement through a Press Release.  There was an 'internal' announcement on the Defence Wide Area Network (DWAN) by the Vice Chief of the Defence Staff, Lieutenant-General Mike Rouleau.

There had been prior indications (i.e. in submissions to Parliamentary committees, in CF publications) that a 'new' CF policy on Sexual Misconduct would be designated using the DAOD number 9005-1; however, the date for promulgation was not widely broadcast.

It is not clear why the new 'Sexual Misconduct Response' DAOD was re-designated in the '9000' series of DAOD, rather than remaining in the '5019' series, along with other DAOD relating to conduct and performance.  The change appears to follow the rationale behind the creation of DAOD 9004-1 - Use of Cannabis by CAF Members.  DAOD 9004-1 was created, rather than incorporating the new rules relating to cannabis into DAOD 5019-3 - Canadian Forces Drug Control Program or by creating a 'new' DAOD under the 5019 series relating solely to cannabis.

The new Sexual Misconduct Response policy will undoubtedly raise a variety of questions, beyond why it was placed in an entirely different series of DAOD and why there was no public announcement to coincide with the change.  For example, the 'Definitions' section of the DAOD (Section 2) defines the terms 'sexual misconduct' and 'workplace'.  Yet, Section 4 of the DAOD - 'General Principles' - includes five more definitions that apply to the DAOD: 'complainant', 'consent', 'respondent', 'sexual assault', and 'victim'.  Why these definitions were not simply included under the Section entitled 'Definitions' is not clear.

Neither is it clear whether the Canadian Forces will concern itself with 'Sexual Disorders'.  Unlike DAOD 5019-5, DAOD 9005-1 makes no mention of any policy relating to sexual disorders.

Also, there are undoubtedly ongoing processes that were initiated under the now-cancelled DAOD 5019-5.  Presumably, those processes must continue to apply the DAOD that was in force at the time that the allegations of sexual misconduct were raised (or, at the very least, the portion of the DAOD that pertained to the prohibited conduct).  However, that policy instrument is no longer publicly available.

There will assuredly be further analyses of this new policy in the coming weeks, as it represents the latest step in the process by which the current (and, presumably, soon to retire) Chief of the Defence Staff intends to eliminate sexual misconduct from the Canadian Forces.  However, even a cursory review of the new policy tends to convey a perspective that any 'respondent' in the new process seems to face a rebuttable presumption of guilt, rather than a truly open-minded and procedurally fair adjudication of what are often contested versions of facts.  It takes more than the occasional inclusion of the terms 'procedural fairness' and 'due process' in a policy instrument to ensure that a process is truly fair.

Town Hall 10 -- a star-studded cast for Dec. 7th

Global Military Justice Reform Town Hall 10 (The Ansell-Crowder Controversy) Monday, December 7⋅9:00 – 10:30am Join Zoom Meeting Location: https://us02web.zoom.us/j/86709907335?pwd=RndLODVzOUUwMlNsTUFzSjJ6MUpyQT09 The topic will be "The Ansell-Crowder Controversy, 100 years later." Our distinguished speakers will be Senior Judge Andrew S. Effron and Professors Jonathan Lurie (Rutgers) and Joshua E. Kastenberg (New Mexico). This should be a very special and interesting event. Please join us and share this invitation with friends. Join Zoom Meeting https://us02web.zoom.us/j/86709907335?pwd=RndLODVzOUUwMlNsTUFzSjJ6MUpyQT09 Meeting ID: 867 0990 7335 Passcode: 723836 One tap mobile +13017158592,,86709907335#,,,,,,0#,,723836# US (Washington D.C) +13126266799,,86709907335#,,,,,,0#,,723836# US (Chicago) Dial by your location +1 301 715 8592 US (Washington D.C) +1 312 626 6799 US (Chicago) +1 646 876 9923 US (New York) +1 346 248 7799 US (Houston) +1 408 638 0968 US (San Jose) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) Meeting ID: 867 0990 7335 Passcode: 723836 Find your local number: https://us02web.zoom.us/u/ke0b34Y68

Why is this case in the military justice system?

A 2019 homicide in Brighton, Massachusetts. The victim was a college student. The state courts are open. The grand jury refuased to indict. What gives? Is this the purpose of the military justice system? Please comment if there's more to know about this case.

Third Independent Review of the National Defence Act

The next two months will be a busy period for the 'Military Justice' system for the Canadian Forces.  The appeals in R v Edwards, et. al., regarding the independence of the military judiciary, will be heard by the Court Martial Appeal Court of Canada (CMAC), likely sometime in mid-January 2021.

Additionally, this morning, the Minister of National Defence (MND) announced the appointment of the Independent Review Authority to conduct the Third Independent Review of the National Defence Act.  Justice Morris Fish, a former Puisne Justice of the Supreme Court of Canada, and now a 'Jurist in Residence' in a Canadian law firm, has been appointed the Independent Review Authority.

Inquiries and submissions to the Third Independent Review should be addressed to Mr. Jean-Philippe Groleau at Davies Ward Phillips & Vineberg LLP, by mail to 1501 McGill College Suite 2600, Montréal, Quebec, H3A 3N9, by telephone at 514-841-6583, or by email at: review.authority@dwpv.com.

All submissions must be received by January 8, 2021. Persons making submissions should expect that their submissions will be made public, however the Independent Review Authority maintains discretion in this regard and may receive certain submissions in confidence.

When does confinement begin?

A case in the Delhi High Court raises the question of whether a Border Security Force court-martial sentence to confinement takes effect immediately or only after confirmation. There aeems to be a conflict between a provision of the Army Acf and an implementing regulation. Details here. The statute may have to be amended, but it does seem that this is a (further) good reason to shift to a post-Findlay system in which there simply is no need for command confirmation.

R v Christmas – Beware the Ghosts of Judgments Past

On 10 November 2020, in his decision in R v Christmas, the Deputy Chief Military Judge (DCMJ) of the Canadian Forces (CF), and de jure Acting Chief Military Judge, Lieutenant-Colonel (LCol) L-V d’Auteuil, granted a stay of proceedings in response to the accused’s application pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms (the Charter).  The accused, Corporal Christmas, argued that courts martial were not independent and impartial tribunals so long as military judges were subject to the disciplinary jurisdiction of the chain of command for the CF.

In so doing, the DCMJ drew a conclusion that was markedly contrary to the judgment of his fellow military judge, Commander (Cdr) Sukstorf, in R v MacPherson and Chauhan and J.L., 2020 CM 2012 [MacPherson].  The issue of judicial comity was necessarily raised in this application, and LCol d’Auteuil held that judicial comity required him to follow the line of reasoning begun in R v Pett, 2020 CM 4002 (per Cdr Pelletier) and R v D’Amico, 2020 CM 2002 (per Cdr Sukstorf), and to decline to follow that of Cdr Sukstorf in MacPherson.  In so doing, LCol d’Auteuil concluded that the judgment in MacPherson represented a derogation from the prior series of judgments this year that focused on the independence and impartiality of the military judiciary.  (An examination of the judgment in MacPherson can be found here.)

Further examination of the impact of this decision can be found here.

As  a result of these conflicting judgments, two things are certain: the scope and argument of the appeals in R v Edwards, et. al. (CMAC-606, CMAC-607, CMAC-608, and CMAC-609), which will likely be heard by the Court Martial Appeal Court of Canada in January 2021, will expand, and uncertainty regarding the application of the Code of Service Discipline will continue.

Australia and war crimes?

They're Australia's elite soldiers whose extreme activities in the most hostile environments are very rarely acknowledged, let alone told.

But persistent and nagging whispers about serious misconduct by members of the secretive Special Air Service Regiment in Afghanistan forced their employer to act.

A cloistered military unit used to operating in the shadows has found itself under a shadow of dark suspicion.

A four-year inquiry, launched by the Inspector General of the Australian Defence Force (IGADF) has been handed to the Chief of the Defence Force, with the Government set to release a redacted version next week. It's left many to wonder what will happen next.

There has long been chatter that international rules of armed conflict had been breached, that war crimes had been committed.

But the prospect of criminal charges isn't totally clear-cut.

Matthew Doran, Conclusion of war crimes inquiry just the beginning of a potentially mammoth legal process. ABC.new.au. 

Free Texas CLE on lawful orders and other contemporary military justice issues

Join Us for a CLE Webinar on November 20! Dear Military and Veterans Law Section Member, The Military and Veterans Law Section of the State Bar of Texas is pleased to present a free CLE webinar scheduled for noon CST on Friday, November 20, titled "To Do or Not to Do." This CLE has been approved for one hour of MCLE credit and is free for any interested attorney, even if not in the section. "To Do or Not to Do" Friday, November 20 Noon - 1 p.m. CST Via Zoom 1 hour MCLE credit (no ethics) FREE for all REGISTER Topic Summary: The presentation will discuss the obligations or duties to follow orders when the orders are believed to be unlawful, the status of the law regarding use of prior complaints in military sexual assault cases and the broader issues of civilian control of the military justice process. Speaker: Philip D. Cave, Civilian Defense Counsel, Retired Navy Judge Advocate, and Director, National Institute of Military Justice We hope you'll join us for this timely and informative presentation. Sincerely, Jon Shelburne, Chair Military and Veterans Law Section State Bar of Texas

Leisurely accountability

Stand by for a report on the investigation into Australian war crimes. Judging by this account in the Financial Review, don't hold your breath for the process to come to completion. The matter has been under investigation for four years and speculation is that it will be as much as ten more years before legal proceedings are done. (Then again, consider the Guantanamo military commissions.)