Town Hall 11

Mark your calendars: Global Military Justice's next Town Hall (our 11th and our first of the new year) will be on Appeals before the Court Martial Appeal Court of Canada regarding judicial independence and s 11(d) of the Canadian Charter of Rights and Freedoms, with Rory Fowler, Monday, Jan. 11, 2021, 9:00 a.m. (US East Coast Time). Please join us; feel free to circulate this invitation to friends and colleagues. Happy New Year!

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Government appeals from CAAF decisions

The Columbia Law Review Forum ran an interesting article military justice article in May. It is Andrea Nishi, Ortiz and the Problem of Intrabranch Litigation, 120 Colum. L. Rev. Forum 118 (May 21, 2020). She concludes:

Although government appeals from the Court of Appeals for the Armed Forces appear to present a conflict between a servicemember and the executive branch, the Court’s characterization of the military justice system in Edmond raised the possibility that these appeals in fact represent an executive challenge to executive action, in violation of the separation of powers and Article III. This Comment uses the evolving nature of the military justice system as a lens for examining the Court’s jurisprudence on the adverseness requirement of Article III and the bar on intrabranch litigation. The recent decision in Ortiz v. United States, while not directly addressing this issue, serves to reconcile these doctrines by framing the work of the CAAF as closer to that of a civilian court than an executive branch entity. Furthermore, the analysis in Ortiz indicates a broader willingness in the Court’s military justice jurisprudence to take a functionalist approach to separation of powers concerns, minimizing the significance of original understanding and the unitary executive theory in favor of amore pragmatic, modern view of military discipline.

If you know of other articles in the law reviews, please send links. H/T to Don Rehkopf, a voracious reader of the professional literature, for this one.

168 Egyptian civilians draw life sentences in military court

Egypt continues to break records when it comes to improperly prosecuting civilians in military court. The latest case involved hundreds of civilians. Details here. Excerpt:

A military court sentenced on Tuesday 168 defendants to life in prison (25 years per Egyptian penal code) for forming 43 cells affiliated with the Islamic State (IS) terrorist group and planning a number of terror attacks across the country.

The terrorist cells, which were affiliated with the Daesh branch in North Sinai known in the media as 'Sinai Province', were charged with carrying out 63 terrorist crimes in North Sinai.

The court acquitted 35 defendants in the case, which included 555 people.

The court sentenced 36 defendants to 15 years in prison, 136 to 10 years, 50 to seven years, 42 to five years, and 89 to three years.

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

Hot off the press: CAAF Annual Report for the October 2019 Term of Court

The U.S. Court of Appeals for the Armed Forces' annual report for the period ending September 30, 2020 is available here on the court's website. The data are worth studying. The report also includes a handy summary of the court's decisions.

Transgender ban

The Palm Center has issued this press release on where the path leads for the ban on transgender personnel in the U.S. armed forces. Watch for developments on and after the inauguration.

Asymmetric Killing

 

Anand Gopal, in a fascinating review in The New Yorker (Dec. 21, 2020) of Neil Renic's new book "
Asymmetric Killing: Risk Avoidance, Just War and the Warrior Ethos" (Oxford 2020) claims that  bombing coordinated from control rooms thousands of miles away violates the ethos of humane warfare.

The core principle of humane warfare is that fighters may kill one another at any time, except those that are hors de combat and they must not target civilians.  But if a belligerant doesn't pose a danger because s/he is thousands of miles away from the enemy, is the belligerant any different from a civilian?

Focussing on the battle in Raqqa, the American led coalition in Syria dropped approximately 10,000 bombs on Raqqa in four months in 2017, destroying 80% of the city of a population of 300,000.  Not one American was killed.  The US claimed that a fleet of lawyers scrutinized the strikes to make sure that they were not indiscriminate and followed the legal rules of warfare.

The US no longer engages in terror bombing such as the bombs dropped on Hiroshima and Nagasaki and then Korea and Vietnam; since the first Gulf War, the US follows the legal rules of warfare.  But Gopal points out, the savage, indiscriminate takeover of Aleppo by Russian and Syrian forces rendered Aleppo as flattened as the US-led forces rendered Raqqa, with their precision bombing.

Human rights groups accuse the US of committing war crimes, including in the Raqqa battle, but the US responds that what it does is legal under international law.  Neil Renic submits that there is a "profound discord between what is lawful on the battlefield and what is moral."  What has gone missing, Renic argues, is the old martial virtue of courage, that was so central to the idea of good soldiering that weapons lacking in valor sparked objections from the ranks.  A British airman from World War II wrote that he was a fighter pilot but  never a bomber pilot, for it "would have given me no sense of achievement to drop bombs on German cities."  The elimination of risk has changed the nature of war and the fact that Raqqa is as much a ruin as Aleppo leads to the conclusion that the current laws on what is legal in warfare need to be revised.

Pardons and war crimes

Professor Stuart Ford (UIC John Marshall Law School) has written an extensive article that President Donald J. Trump's latest pardons make even more timely: Has President Trump Committed a War Crime by Pasrdoning War Criminals?, 35 Am. U. Int'l L. Rev. 757 (2020). The author analyzes the Golsteyn, Lorance, Behenna and Gallagher cases, and emerges with a range of answers running from "could be," "good chance," "maybe," "probably," and "might be" to "no," depending on the case. He notes an open question about successor liability, i.e., what if the underlying war crime occurs under one commander but it is a successor commander who fails to punish it (here by granting clemency)? In the end, there remains the vexing challenge of how and where the soon-to-be ex-President might actually face prosecution. Comments welcome. Real names only, please.

Military Self-Interest in Self-Accountability for War Crimes: Myanmar Edition

SONG Tianying has authored this policy brief applying self-interested reasons for state and non-state actors in recent conflict in Myanmar to hold their members accountable for war crimes. The situation: 

Myanmar is home to some of the world’s longest-running armed conflicts, with some ethnic conflicts dating back more than 70 years. Militarisation and insecurity have perpetuated minority areas. At the time of writing in 2020, Myanmar has some twenty powerful non-state armed groups around most of its periphery. These armed groups are formed around ethnic identities (for example, the Karen National Union or the United Wa State Army) with stated objectives of greater autonomy for their community. These armed groups fight for or against the State military (the ‘Tatmadaw’), and ally with or fight against each other. Since Myanmar’s independence in 1948, the Tatmadaw has been fighting counter-insurgency wars across a significant part of the territory. Since early 2019, the armed conflict between the Tatmadaw and Arakan Army in Rakhine State has witnessed vicious fighting.

The policy brief applies principles developed by SONG and Morten Bergsmo in an edited volume of self-interested reasons for armed forces to pursue accountability for war crimes by their own members. That project arose from a 2012 conference in Palo Alto between the Center for International Law Research and Policy, Stanford University, and the UC Berkeley War Crimes Studies Center. 

Why is this case in a military court?

A Russian military appellate court has upheld the conviction of a civilian from Bashkortostan whose offense was to suggest in a video statement that the Russian Federation should be more of a true federation. Details here. Nine years for urging greater autonomy for ethnic republics and regions? Human rights jurisprudence strongly disfavors the trial of civilians by military courts. One has to assume Airat Dilmukhametov will seek relief on further domestic appellate review or from the European Court of Human Rights.

New judge on Israel's Military Court of Appeals

Col. Noa Zomer has been sworn in as a judge of the IDF Military Court of Appeals. Congratulations, Your Honor.

No injunction in Annapolis case--yet

Federal district judge Ellen L. Hollander has dismissed without prejudice the case of Standage v. Braithwaite, a lawsuit brought by an Annapolis midshipman seeking to block his disenrollment. The case raises significant free speech issues, judging by this account. Here's the judge's lede:

This case arises from efforts of the United States Naval Academy (“USNA,” “Naval Academy” or “Academy”) to discharge and disenroll plaintiff Chase Standage, a twenty-one year old midshipman first class in his senior year at the Academy, because of “tweets” that he published in June 2020 via Twitter, “a social networking platform that allows a person to post and read short messages called ‘tweets.’” United States v. Loughry, ___ F.3d ___, 2020 WL 7483758, at *2 (4th Cir. Dec. 21, 2020). Plaintiff’s tweets concerned topics such as race, racial injustice, police brutality, the social ferment related to those issues, and the government’s response to protests that gripped the nation after the tragic deaths of Breonna Taylor and George Floyd in March and May 2020, respectively.

Judge Hollander ruled that the case is not yet ripe. It is safe to assume the parties will be back in court if the Secretary of the Navy (whoever that will be after January 20, 2021) winds up dismissing Midshipman Standage.

Canada gets a new Chief of the Defence Staff

 

December 23, 2020. Prime Minister Justin Trudeau has announced the  appointment of Vice-Admiral Art McDonald, (born 1967)  as Chief of the Defence Staff.  On appointment, Vice-Admiral McDonald will be promoted to the rank of Admiral. He graduated from the Royal Military College in 1990 and he holds a Master in Defence Studies. He attended the US GOFO Capstone Program in 2014. He is currently the  Commander of the Royal Canadian Navy. The Change of Command ceremony to be held the week of January 11, 2021.

 

A Danish decision on abuse of office by a senior officer

A few months ago, the High Court of Western Denmark handed down its decision in an important and interesting case. Here is the court's press release (Google translation):

Judgment on abuse of office in the Armed Forces, V.L. S-1064-20

On 24 August 2020, the High Court ruled in an appeal case in which a senior officer in the Armed Forces was charged with, among other things, to have abused his position, for breach of duty of a gross and particularly gross nature and for breach of his duty of secrecy.

The High Court sentenced the accused to 3 months in prison.

By judgment of 19 May 2020 from the Court in Viborg, the accused officer was essentially found guilty of the charge and sentenced to unconditional imprisonment for 60 days. Defendant had pleaded not guilty and appealed the verdict for acquittal.

The High Court found that the defendant was guilty of having tried to abuse his position to get his then-girlfriend and later spouse admitted to a highly coveted leadership training within the Armed Forces. He was also found guilty of attempting to abuse his position by trying to persuade a colonel to hire his girlfriend in a vacant position as a major. In addition, the defendant was found guilty of gross negligence and breach of his duty of confidentiality by giving the girlfriend access to the inbox of the defendant's official e-mail and by forwarding emails of a confidential nature to her on matters that did not concern her.

The High Court, like the City Court, acquitted the accused of having spoken untruthfully in connection with the Chief of Defense's questions to him about the case. In addition, the district court acquitted the defendant of gross negligence by asking his secretary and staff assistant to print and cut some cards for use in his and his girlfriend's wedding. The High Court stated in this regard that there was no negligence of such a seriousness that it was punishable under section 27(1) of the Military Penal Code.

In sentencing, the High Court emphasized the seriousness of the circumstances, which had been committed over a period of 3 years, and the very significant position that the defendant had as a senior commander in the Armed Forces.

Inquiries regarding the case can be made to press contact judge Lisbeth Parbo, tel. 30 29 31 39.

A printout of the decision can be ordered per. mail to sektionc@vestrelandsret.dk. The printout costs DKK 175. The amount must be transferred to the High Court's bank account no. 0216-4069134874 with reference to the case number. When the amount is received, the printout will be processed.

Note that the High Court increased the officer's jail sentence from two to three months.

Book review

Book Review by David Buzard, 146 Proceedings of the U.S. Naval Institute, December 2020, at 87 (reviewing Sean McFate, The New Rules of War: How America Can Win Against Russia, China and Other Threats (New York: HarperCollins, 2020)). (5th item linked here)

"With Admiral James Stavridis praising its author as 'a new Sun Tzu,' and the Army War College having added it to its reading program, it seems that The New Rules of War by Sean McFate has become essential reading. And a must-read it is, both for lay devotees of military affairs and serious security-sector professionals. To the former, enthralled by the might of U.S. arms during the 20th century, it is a clarion call for fundamental change in strategic and tactical thinking. To the latter, it is nothing new: 'We’re already behind in adapting to the changed character of war today in so many ways,' declared Chairman of the Joint Chiefs of Staff Marine Corps General Joseph Dunford to the 2016 graduating class at the National Defense University, on whose faculty McFate sits.

"McFate relays the message in riveting Tom Clancy style sure to please the armchair warrior—and, hopefully, to convert worshipers of the military-industrial complex away from their faith in multibillion-dollar programs such as the Third Offset Strategy. According to McFate, relying on conventional use of force is an historical anomaly, a vestige of the Westphalian order, that is fading fast with the advent of nonstate actors. Although the era of nation-states clashing on the battlefield is over, armed conflict abounds, belying what McFate terms a state of global 'durable disorder.' Yet, the United States military suffers from 'strategic atrophy,' preventing it from adapting to this new world order.

"McFate provocatively describes this order as 'wars without states,' where 'countries will become prizes to be won by more powerful global actors'; 'mercenaries . . . take over countries, ruling as kings; and 'nonkinetic elements like information, refugees, ideology and time will be weaponized.' One can see its harbingers in the resurgence of the 14th-century Russian tactic of maskirovka, or 'masquerade,' and China’s official 'Three Warfares Strategy,' which draws on Sun Tzu. Both firmly relegate kinetic force to a secondary role.  The veneer of the Westphalian order—along with its 'conventional war theory,' whose 'high priest' is Carl Von Clausewitz—is falling away. McFate does not mourn that order by any means; under it, humankind has experienced the greatest bloodshed in all history. Yet the post-Westphalian world he describes is frightening, one in which 'slaughtering the innocent is used . . . to bait, punish, or provoke,' and where 'killing civilians to manipulate the winds of war and to achieve indirect strategic effects' is the norm.

"Although he expressly 'brackets the important question of war ethics,' McFate implies that with the fading of conventional warfare, so goes the War Convention. In fact, he as much as pronounces it dead: international law is 'futile,' the laws of war a 'marvelous fiction' that has 'devolved into a punch line.' Let us hope McFate’s cavalierism is merely symptomatic of his overall bravura, playing to the more brutish aficionados. Surely, given his impeccable credentials (BA from Brown, MA from Harvard, PhD from London School of Economics, professorships at the National Defense University and Georgetown), he knows better than to reference 'waving a white cloth to signal surrender.' It is in this respect that McFate disappoints: One cannot honestly 'bracket' the question of morality in war, and then gratuitously denigrate the efforts made to enforce basic morality within it.

"Nevertheless, McFate’s argument that we must both adapt pre-Westphalian basics for the information age and embrace extra-Western strategic thinking is compelling, well-illustrated, and thrilling to read. For these reasons, his book is highly recommended to all Americans with a passion for military affairs. McFate’s core advice is to overhaul military education to foster 'scholar-practitioners' and unchain strategic thinking from its conventional prejudice. As he puts it, 'We will need more than warriors—we will need war artists. War is more like jazz than engineering and we need strategists who can think this way.' In so doing, however, let us not throw away our moral compass and sail aimlessly through the seas of durable disorder."