Saturday, April 17, 2021

Closing Guantanamo?

Twenty-four Senators have written this letter to President Joseph R. Biden recommending closure of Guantanamo and resolution of pending cases in the Article III courts. NPR discusses the letter here.

Thursday, April 15, 2021

Multum in parvo

Let those with a bar license on the line make the legal decisions.

From this opening comment by "AF JAG" over at CAAFlog

Why is this case in the military justice system?

Sam Mednick of the Associated Press writes here that a former president of Burkina Faso has been charged before a military court with complicity in the murder of his predecessor. Why a military court?

Human rights jurisprudence strongly disfavors the trial of civilians in military courts and the African Charter of Human and Peoples' Rights forbids it entirely.

Add Burkina Faso to the list of states that violate this principle, such as Uganda, Egypt, Lebanon, and Pakistan.

Trouble in Madrid

A chamber of the Supreme Court of Spain has invalidated the appointment of two judges to the court's Military Chamber. According to this report, the process by which they were chosen by the General Council of the Judicial Power had omitted a critical step. Excerpt:

The ruling refers to the proposal of two candidates for each of the positions that preceded the appointment, and highlights that the agreement of the Permanent Commission of November 21, 2019 justified the proposal of two names, despite the fact that it considered "suitable" for the square to four candidates; "With very similar potentialities." The ruling concludes that “what they could not do was simply dispense with the legal requirements and make an amicable compromise with both positions, two candidates for each of them, a decision that opens the door to all kinds of possible speculations about the selection of each of the pairs , just the opposite of the will of the legislator to objectify the criteria that should guide these appointments , outside of the nucleus of broad discretion that they entail regarding the decision of the Plenary on the candidate to ultimately promote for the position".

An unsuccessful candidate for a seat on the Military Chamber had objected, leading to the court's decision.

Peacetime military jurisdiction -- pushback from the Military Criminal Chamber

Not so fast, says the president of Italy's Military Criminal Chamber (the specialized bar organization), Saveria Mobrici, in response to suggestions to end peacetime military courts:

Military jurisdiction in peacetime corresponds entirely to the general interest of the proper functioning of the jurisdiction, for the needs of specialized skills to be applied, for the needs of temporal economy of the proceedings, for the needs of the defense of the rights of the personnel of the Armed forces.

The Military Criminal Chamber, therefore, expresses the hope that military justice of peace, made even more "consistent" with the dissolution of some interpretative knots by the law, will be confirmed in its institutional functionality.

For its part - concludes President Saveria Mobrici - the Military Criminal Chamber, simultaneously expresses the hope of being able to play an active role in the proper functioning of military justice.

The Chamber's full statement (in Italian) can be found here.

Wednesday, April 14, 2021

Will combating extremism politicize the miltiary?

My Army reserve unit conducted its extremism training this weekend. It’s a legal unit. As lawyers like to probe and argue the finer points, I found the training interesting and can see how it could prove effective. The effectiveness of the DOD-wide stand down almost certainly depends, in part, on the unit level leaders. As press stories indicate, troops in different locations report mixed reviews. 

During our training, we discussed the oath officers and noncommissioned officers take to defend the Constitution from all enemies, foreign and domestic. That oath, and the defense of the Constitution, reminded us all of our role to defend our democratic form of government.

The impetus for the training was the events of January 6, where U.S. citizens stormed the Capitol, attacked law enforcement, and disrupted the peaceful transfer of power. The participants of that riot were disproportionately current and former military members, which was naturally a cause of concern.

As the training moved to the margins of the political issues from combating extremism, I, as I assume many other members, became uncomfortable. While I am entitled to personal political beliefs, it is awkward and against good practice to discuss them while in uniform. Especially where such beliefs directly confront the former president. Making my comments risked the non-partisan demeanor I strive for in uniform on a personal level, the same apolitical nature the organization also attempts to maintain.

So what went undiscussed during the training, the elephant in the room, was the role played by the leader of the Republican Party, the former president of the United States and the ex-commander-in-chief of the armed forces in the riot that led to the stand down. President Trump spoke to the rioters before they stormed the Capitol and attempted to thwart the lawful counting of electoral college votes. Those rioters used violence and intimidation, and the president’s speech was a call to action against the lawful counting of legal votes. 

For any of those who doubt that assertion, the transcript to President Trump’s speech demonstrates his encouragement to the rioters. He told them, among other things, that their “election victory [was] stolen by emboldened radical-left Democrats…. We won this election and we won it by a landslide…. We will not let them silence your voices. We’re not going to let it happen, I’m not going to let it happen.” He also implored Mike Pence to “come through for us”, in reference to preventing the certification of the election President Trump had just lost.

As the training progressed, it became clear that for DOD to successfully combat extremism, it needs to have conversations that I was unwilling to have. These conversations would inevitably confront a large subsection of the Republican party that feels President Biden stole the election. And the decision to have these discussions would undoubtedly risk the apolitical military, and potentially put all of us in the partisan fray. But I don't see a way to successfully confront extremist groups, and those that believe their aims to be just, while avoiding a discussion that accurately reflects the role played by prominent civilian leaders.

Take for example the Proud Boys, an organization that participated in the January 6 riot, and which has recently been labelled a terrorist entity by the Canadian government. The Proud Boys took comments President Trump made during one of the 2020 debates as marching orders. Tucker Carlson has posed for pictures with members of the Proud Boys, and the group has maintained extensive ties with Roger Stone. The Southern Poverty Law Center finds the Proud Boys have engaged in violence and espouse white nationalist beliefs. Given the SPLC and the Canadian government’s views, and the Proud Boys history, will DOD label this group as one that military members must not participate in?  And what about other orgs with white nationalist ties? And if DOD fails to list prohibited groups that are in good standing in some political corners out of fear of a backlash, isn't it avoiding the problem?

Thus, to the extent DOD is serious about combating extremism in its ranks, and to the extent service members are faithful about their oath to the Constitution, we must confront all enemies to democracy. We should strive to maintain the apolitical nature of our organization and stay above partisan battles. But when those battles involve the people’s right to choose their leaders, without the threat of or actual violence, the military must engage without fear of the consequences to our public standing.

A disturbing National Guard case

Tom Vanden Brook writes here in USA Today about a disturbing case from the Maryland National Guard. A Black officer candidate made to wear a heavy chain?

"[Sgt. Bruce] Weaver's case represents a wider problem for the National Guard whose units in each of the states, territories and District of Columbia operate with a great deal of autonomy and with little oversight of how various units respond to complaints of inappropriate conduct, such as allegations of racism, sexual harassment and assault. The National Guard Bureau in Washington, which referees appeals between state Guard units and troops, serves largely in an advisory role."

Tuesday, April 13, 2021

Prof. Wexler on the Military Justice Improvement Act and command-centric military justice

Professor Lesley Wexler of the University of Illinois College of Law has written a column titled Military #MeToo Justice: Is a Change Going to Come? She concludes:

So in contemplating this change in military justice [the proposed Military Justice Improvement Act], it is important to look at both sides of the ledger. The adherents of the status quo seem unwilling to acknowledge just how significantly the status quo is eroding trust in commanders. Yet some proponents of change seem unwilling to acknowledge just how significant a shift it would be to move decisions out of the chain of command for sexual assaults or for felonies more broadly. Even though trust in commanders relating to sexual harassment and sexual assault is low, it is possible things could get worse on that front if the move to attorneys not just failed to do better but actually did worse. I personally haven’t seen much in the literature either empirically from countries that don’t have a commander-centric model or theoretically that suggests that would be the case, but care must be taken to make sure that the reforms proposed both address the existing problems and don’t exacerbate them unintentionally or create new ones altogether. While the executive and legislative branches continue to hash this out, perhaps the Army Forces command experiment can provide some initial evidence on these questions.

White supremacists in the Navy and Marine Corps

Will Carless has written this USA Today account of how the Navy and Marine Corps have dealt with white supremacists in their ranks. He begins:

For decades, the U.S. Navy and Marine Corps have quietly kicked out some of the worst white supremacists in their ranks, offering them administrative discharges that leave no public record of their hateful activity, a USA TODAY review of Navy documents found.

The documents, obtained via a public-records request by the open-government advocacy group American Oversight, detail 13 major investigations into white supremacist activity in the Navy and Marine Corps over more than 20 years. They show a pattern in which military leaders chose to deal with personnel involved in extremism by dismissing them in ways that would not attract public attention.

The article includes a link to the hundreds of pages of investigative records obtained under the Freedom of Information Act. 

Clarifying the role of ICC complementarity in the context of the UK Overseas Operations Bill

The following Essay has been contributed by Brian L. Cox, Adjunct Professor of Law, Cornell Law School, Visiting scholar at Queen’s Law, and retired Judge advocate, U.S. Army.

As the contentious UK Overseas Operations (Service Personnel and Veterans) Bill approaches the 3rd reading in the House of Lords, one particular issue that has plagued the Bill and sown confusion in the debate from the very beginning is what effect the so-called prosecution ‘triple lock’ might have in terms of UK international law obligations pursuant to the Rome Statute. At the heart of the matter is the provision that would implement a ‘presumption against prosecution’ following the ‘period of 5 years beginning with the day on which the alleged conduct took place has expired.’

For proponents, this is a necessary step that would protect service personnel from being subjected “to what can often seem an unending cycle of investigation and re-investigation” that “risks undermining morale within the Armed Forces and trust in the rule of law.” For critics of the Bill, the presumption against prosecution “undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law.”

It is certainly reasonable for informed perspectives to disagree on the merits of the Bill and the attendant presumption against prosecution that would begin 5 years from the date of the alleged offense. While I have my own (generally supportive) views of the Bill, the goal of this post is not to express an opinion in favor of or against the pending legislation. My intent here is rather more modest in scope – but the matter at hand may well help the Lords make an informed decision in the weeks ahead and, if adopted, help inform the implementation of the OO Bill.

Giving Shape to the Complementarity Concerns Associated with the Overseas Operations Bill

A central aspect of the concern that has been expressed to date in relation to the presumption against prosecution (after 5 years) is the potential that the “triple lock” may subject British service members to prosecution before the International Criminal Court. This concern could be realized, for example, if the tribunal determines in a particular case that the UK is not fulfilling its domestic obligation to investigate or prosecute allegations of offenses established in Article 5 of the Rome Statute. 

The confusion that exists in relation complementarity was demonstrated, by way of illustration, fairly early on during debate in the Commons when MP Emma Lewell-Buck, who is generally critical of the Bill, asked solicitor Hilary Meredith whether she expects “more prosecutions of UK armed forces personnel and veterans in the International Criminal Court.” And the response from the expert witness? “I do not actually know.”

Based on the nature of the debate that has occurred to date, it seems fair to conclude that no one involved really knows what impact the Bill might have in terms of ICC complementarity. Though the issue of complementarity featured prominently right across the debate that accompanied the second reading of the OO Bill in the HoL, Lord Houghton of Richmond summarized the concern well when he cautioned against “the unquantifiable risk that our people will be brought before the International Criminal Court rather than our own national ones.” (col 1209)

Part of the reason the apparent risk that UK service members are ostensibly “more likely to be hauled before the International Criminal Court” (col 1198) appears so unquantifiable to date is that prevailing perspectives are founded upon only a partial grasp of the relevant text of the Rome Statute. Sticking with the Lords debate that accompanied the second reading of the bill, several MPs articulated the basic complementarity formulation reflected in the Rome Statute: that is, that the ICC may assume jurisdiction if the relevant state party is found to be unwilling or unable to investigate or prosecute an alleged offense. (for example, see cols. 1208, 1223, and 1255)

While this understanding of the complementarity arrangement reflected in the Rome Statute is not incorrect, it does reflect a fairly limited interpretation that excludes a significant degree of important detail that could lend an appreciable degree of clarity to what appears at the moment to be an “unquantifiable risk.” To bring improved clarity to the debate, there is no substitute for the plain text of the Rome Statute.

Did you know . . .

. . . that now in Mexico offenses by military personnel against civilians must be tried in the regular courts? This Washington Post article describes a current case involving 30 Mexican Marines who have been turned over to civilian authorities.

Peacetime military jurisdiction in Italy: expand or abolish?

There's an interesting debate going on in Italy over the military justice system in connection with the pending espionage case of a naval captain. For contrasting views, consider these articles from Formiche: one that suggests ending peacetime military justice and another (by the president of the National Association of Military Magistrates) that argues for updating the statute and expanding the jurisdiction.

Monday, April 12, 2021

Why should this case be tried in military court?

A civilian trespasses on a military site. Should the person be tried by court-martial? Spain thinks so, as witness this story.

See you in Strasbourg.

Nevitt on mandatory vaccination

Prof. Mark Nevitt, writing for Just Security, has this analysis of the questions surrounding mandatory COVID-19 vaccination for military personnel. He concludes as follows:

Where do we go from here?

While the military has aggressively engaged in an information campaign about the efficacy and safety of the COVID vaccines, misinformation continues to spread online. Far-right extremists, as well as Russian Twitter trolls, have helped fuel anti-vaccination information on social media. The U.S. government should double-down on efforts to counter this.

The DoD recently announced that it will be ready to offer COVID-19 vaccinations to everyone by May 1— so more information about the overall military vaccination rate should be available shortly. While Defense Secretary Lloyd Austin has not indicated that he will request a waiver of the informed consent provision, this remains a valid option. He has also squarely addressed vaccine hesitancy. As the above three questions highlight, mandatory vaccination may not ultimately be pursued for a variety of reasons, and hopefully it won’t be needed. But a mandatory vaccination program would likely be upheld in military and federal courts if President [Joseph R.] Biden determines that it is in the interests of national security.

The very model of a modern sentence? The sentence of Maj Gen Welch (Rtd)

This article was initially published on the Cornwall Street Chambers website. It is primarily intended to address a civilian/non-specialist audience but it may be of some interest to the readers of GMJR. 

On 25th March 2021 the Court Martial sitting at Bulford Military Court Centre convicted Major General Nick Welch OBE (Rtd), late Assistant Chief of the General Staff, of fraudulently claiming £49 212.00 in Continuity of Education Allowance (“CEA”). He was the most senior British officer to be tried by Court Martial since 1815 when Lt Gen Sir John Murray was convicted of abandoning his guns without due cause, during the failed Siege ofTarragona in 1813. Fortunately, for the reputation of the British Army that reverse was soon eclipsed by the then Marquess of Wellington’s stunning victory at Vittoria two days later. Sadly, no such laurels attached to the British Army in late March 2021.


Maj Gen Welch was charged in relation to his claim for CEA, a scheme whereby service personnel required to serve away from home can educate their children at independent Boarding Schools. The purpose is to aid retention by ensuring that children’s schooling is not constantly disrupted by the requirements of the service. The full conditions of the scheme can be found in JSP752. However, in a nutshell, whilst serving in London Maj Gen Welch was required to make his Service Family Accommodation (a family house in Putney) his main home i.e. where he and his wife lived and where his children returned in the school holidays. His wife was not permitted to be absent for more than 90 days per year. In return, 90% of the school fees for his two children would be funded by the MoD.

The effect of the scheme is that if the soldier’s partner does not want to “follow the drum” because it might mean giving up a career, or simply because they do not wish to live where the Army sends their partner, then their child may be forced to change schools. It is a somewhat archaic rule that has led to the end of more than one marriage and the career of more than one officer as they try to protect their child and placate their partner by hiding the truth from the Army. As was said during the trial, there is a certain amount of flexibility built into the system but only if you inform the chain of command and make a case for funding to continue. However, there is the ever-present risk that funding may be withdrawn if your partner is away for more than 90 days.

Unfortunately for Maj Gen Welch, the Board found his wife had been absent for more than 90 days. Furthermore, it found he had known full well that he was in breach of the regulations but had dishonestly still claimed the allowance.


On 26th March 2021 the Judge Advocate General, HHJ Alan Large (“JAG”), sitting with the Board who had convicted him, sentenced Maj General Welch to 21 months imprisonment and to be dismissed from the Army. He was ordered to pay back the full sum of £49 212.00 within three months. Mr Welch was conveyed to the Military Corrective Training Centre at Colchester that day and then, a few days later, to Her Majesty’s Prison Colchester to begin his sentence. He will serve half the sentence in custody (less up to 135 days which can be spent on Home Detention Curfew) and twelve months on licence.

The full sentencing remarks are available on request from the Military Court Service and deserve reading in full.


To those unfamiliar with the Service Justice System (“SJS”) the sentence will appear a harsh one. A man of positive good character, with steady employment who was sentenced (even after trial) following a delay of four years for a non-violent offence would ordinarily receive a suspended sentence if the sentence was capable of suspension. During the Pandemic, when imprisonment is much harder, a suspended sentence is more likely. The Court Martial is required to have regard to the Definitive Guideline on the Imposition of Community andCustodial Sentences which invites them to consider the following:

The sentencing remarks confirm the Board concluded that appropriate punishment could only be achieved by immediate imprisonment. However, they made no reference to the other features beyond strong personal mitigation. That of itself is surprising because

even if a board takes the view that appropriate punishment would only be achievable by immediate custody, they still have a discretion to suspend if there are sufficient factors against such a course; it is a balancing exercise. Unfortunately it is not clear if that balancing exercise was conducted. Certainly, no consideration appears to have been given to the inevitable loss of employment caused by imprisonment.

It appears that there was no Pre-Sentence Report which would have provided independent advice on how to assess those criteria. That is another surprising feature of this sentencing exercise. Before imposing a sentence of imprisonment or dismissal the Court is required by s.256 of the Armed ForcesAct 2006 (“AFA06”), to obtain a pre-sentence report (“PSR”) unless it is of the opinion that it is unnecessary. That sensible caveat to the rule means there is no need to obtain a report where the only possible outcome is imprisonment. In the Crown Court that sensible caveat is often stretched by experienced and pragmatic judges who, having heard a trial have already concluded that they will have to send the defendant to prison. JAG is certainly an experienced and pragmatic judge, and a humane sentencer, so it is readily understandable that he may have concluded that he did not need a PSR, particularly when assisted by Her Majesty’s counsel. However, the Board was made up of lay members with an equal voice to JAG. Whatever, their professional skills they were not experienced sentencers and should really have been assisted by a PSR, as Parliament intended. By not ordering a report Maj Gen Welch was perhaps deprived of an opportunity.

Why then did the Board take such an uncompromising attitude? Unlike the Criminal Justice System in the SJS a purpose of sentencing is the maintenance of discipline, the foundation of Operational Effectiveness. Dishonesty is particularly corrosive to discipline as, when committed against the Crown or a comrade, it erodes trust. Therefore, military justice has long taken a particularly dim view of such offending.[1] Good discipline requires commanders to be examples. Maj Gen Welch was the most senior officer convicted in modern times, and as JAG made clear the higher the rank, the greater the aggravation. These two features may justify the imposition of a harsher sentence than the Crown Court would impose. Although arguably a suspended sentence with a lengthy curfew, unpaid work and financial penalty would have met the occasion.

One reason such a sentence might have met the occasion is that Maj Gen Welch was also dismissed from Her Majesty’s Service. That additional penalty was inevitable in a case such as this, as The JAG’s Guidance on Sentencing in the Court Martial and the Court Martial Appeal Court makes clear. However, it is a separate penalty requiring separate consideration and if it must be imposed, consideration must be given to totality. Unfortunately, the Sentencing Remarks do not reveal any consideration of the impact of the sentence. Normally dismissal means the loss of employment, accommodation and the delay in pension rights. Having retired Maj Gen Welch would not suffer any of those consequences and that may be why little consideration was given to the impact of the sentence. However, that is a superficial analysis, the reality is that the rank of major general, even on the retired list, is a valuable commercial asset commercial. That is perhaps unpalatable, but it is the reality. This sentence has deprived Maj Gen Welch of that asset and the Court was required to consider if a reduction in the custodial term was required to address totality. The impact of dismissal has been held to sufficient to reduce a sentence of imprisonment to one of detention.

Another reason a suspended sentence might have met the occasion was the level of delay before trial; four years. Unfortunately, in the SJS delay before charge is endemic, despite strenuous efforts of the judiciary as part of the Better Case Management (Court Martial)policy, the Service Police insist on repeatedly interviewing suspects and obtaining every continuity statement before referring the case. However, four years is exceptional even within the SJS. Delay impacts on the defendant who has the matter hanging over them, sometimes even after they leave the service and impacts on Operational Effectiveness. The Board reduced the sentence by 9 months or 30% to reflect that. However, the Court of Appeal has previously reduced a sentence by 25% to mark 11 months delay, not withstanding the appellant pleaded not guilty. Whilst the Board could not follow the arithmetic exactly, for obvious reasons, a reduction of 50% or a suspension is arguably called for, if only pour encourager les gendarmes.

Maj Gen Welch’s sentence was unquestionably a harsh sentence, especially during the pandemic, although the Board effectively reduced the length of the sentence to reflect that it would be harder to serve than it would have been if imposed before the pandemic. However, the requirements of the service, particularly the need to maintain discipline, required a harsh sentence. As the sentencing remarks implicitly acknowledge, Maj Gen Welch knew that full well. The question is though, as a result of the issues raised above, was it an excessive sentence? Certainly, it can be argued that the Board could have taken a different course. We may yet find out, Mr Welch has until 23rd April 2021 to lodge an appeal against sentence with the Court Martial Appeal Court.

[1] The Articles of War specified a sentence called the Gauntlet. The prisoner would be marched slowly past his comrades who (as victims of the theft) would lash him with lengths of rope.

Military Justice Handbook published

GMJR's very own Brig. Anthony Paphiti (Rtd) has published the second edition of his Military Justice Handbook

The Military Justice Handbook is THE essential text for anyone involved in the Service Justice System. I obtained my copy of the First Edition before my first ever military case and it has been my constant companion ever since. The Handbook serves as a primer for those new to the field and a reference point for seasoned practitioners. The Second Edition’s expanded content means no other book on the subject can match it for breadth and depth. It is simply the leader in the field and should be on the desk of every military law practitioner and commanding officer.

Copies are available here.

Friday, April 9, 2021

Updated GPW Commentary

A summary of the International Committee of the Red Cross's updated commentary on the Third Geneva Convention can be found here. The summary was written by Jemma Arman, Jean-Marie Henckaerts, Heleen Hiemstra, and Kvitoslava Krotiuk. 

Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. This article highlights key points of interest covered in the updated Commentary on the Third Geneva Convention. It explains the fundamentals of the Convention: the historical background, the personal scope of application of the Convention and the fundamental protections that apply to all prisoners of war (PoWs). It then looks at the timing under which certain obligations are triggered, those prior to holding PoWs, those triggered by the taking of PoWs and during their captivity, and those at the end of a PoW's captivity. Finally, the article summarizes key substantive protections provided in the Third Convention.

Tuesday, April 6, 2021

Singapore hazing death prosecution

The Singapore High Court has granted a prosecution appeal in a case involving the hazing ("ragging") death of a member of the Civil Defence Force. Two officers now face more serious charges, according to this report in the Straits Times. "Justice See Kee Oon yesterday ruled that former Tuas View Fire Station rota commander Kenneth Chong Chee Boon, 40, and his deputy Nazhan Mohamed Nazi, 42, were guilty of intentionally aiding servicemen to cause grievous hurt to Corporal Kok Yuen Chin by a rash act that endangered human life."

The case was tried in the civilian courts. The Singapore Civil Defence Act criminalizes such offenses as assault on a subordinate, cruelty, abuse of authority, negligent performance of duty, and conduct or neglect to the prejudice of good order or discipline. Aiding and abetting is an offense.

Brazil is another country that applies military law to firefighters.

Saturday, April 3, 2021

This Tuesday: Town Hall 14, The Politics of Military Justice: a Global Study

Please join us for Global Military Justice Reform's Town Hall 14: The Politics of Military Justice: A Global Study, with Professors Andrew Reiter and Brett Kyle (Tues., Apr. 6, 9:00 a.m.). Feel free to pass this along to others who may be interested.


Meeting ID: 858 6371 3314

Passcode: 077040

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Inter-American Commission statement about Veneuzela's misuse of military courts

 On March 24, 2021, the Inter-American Commission on Human Rights issued this press statement:

Given the ruling issued by the Constitutional Chamber of the Supreme Court of Justice (TSJ) of Venezuela that reaffirmed the jurisdiction of the military criminal jurisdiction over military offenses committed by civilians, the Inter-American Commission on Human Rights (IACHR) calls for the State to definitively abandon the trial of civilians by military courts.

The IACHR learned of judgment Nº. 0246 of the Supreme Court of December 14, 2020 which, although it mentioned inter-American standards to annul a decision of the Tenth Military Court of Control of the Criminal Judicial Circuit of the State of Zulia in favor of two civilians, reaffirmed the possibility that the military criminal jurisdiction could learn about military offenses committed by civilians. In the Commission's opinion, this reasoning does not respond to the absolute nature of the prohibition against trying civilians before the military criminal jurisdiction.  

According to information provided by civil society, from January 1, 2014 to date, at least 870 civilians have been presented before the military jurisdiction; of these people, at least 19 remain deprived of liberty. In 2020, the case of the union leader Rubén González stood out, to whom a Court Martial in Caracas confirmed a sentence of five years and nine months of deprivation of liberty imposed by the Fifth Military Court of the Monagas state . In 2018, the surgeon Iván Marulanda was arrested and presented before military courts in Fort Tiuna, remaining deprived of liberty for more than two years. In 2017, the Supreme Court declared that opposition deputy Gilber Caro did not have parliamentary immunity because he was a substitute deputy, authorizing his arrest and trial before the military criminal jurisdiction for treason. Likewise, the Commission is particularly concerned that the use of the military criminal jurisdiction has intensified during the episodes of protests, as occurred in 2017, when more than 750 civilians were brought before this jurisdiction. 

The IACHR reiterates that, in a democratic rule of law, the military criminal jurisdiction must have a restrictive and exceptional scope and be aimed at the protection of special legal interests, linked to the functions that the law assigns to the military forces. Thus, the trial of civilians should be excluded from the scope of military jurisdiction and the military should only be tried for the commission of crimes or misdemeanors that by their very nature violate the legal rights of the military order. Consequently, it is a priority for the State of Venezuela to adopt the necessary measures, including those of a legislative nature, to adapt its internal legislation, as well as to redirect before the ordinary jurisdiction all judicial cases that should not have been heard by the military criminal jurisdiction in the first place. place.

Friday, April 2, 2021

The Biot Case

Walter Biot
, a captain in the Italian Navy, has been arrested on charges of spying for Russia. A threshold question is whether the case will be handled by military or civilian prosecutors or both. Some details here and here.

Thursday, April 1, 2021

Sexual assault and the National Guard

USA Today has a long article by Katelyn Ferral of the Cap Times about the handling of sexual assault allegations in the National Guard. There are over 450,000 members of the National Guard, 22% of whom are women. Personnel who are not on federal ("title 10") orders are subject to state or territorial codes of military justice; their cases are outside the jurisdiction of the U.S. Court of Appeals for the Armed Forces or the service courts of criminal appeals.

Bouterse trial to resume

The court-martial of former Surinamese President Desi Bouterse can now proceed, the judge has ruled, rejecting claims that the effect of an amnesty must be decided by a civilian court. Details here.

Tuesday, March 30, 2021

Armed Forces Bill committee hearing on amendments

The Select Committee on the Armed Forces Bill held a zoom hearing on March 25, 2021. This is the first time a committee's line-by-line review of proposed amendments to a bill has been televised.The video can be found here.

The committee members' attention to detail is impressive. If only markup sessions by the armed services committees of the U.S. Congress were televised (or even open to the public).

Military justice reform in Wisconsin -- a case of the slows

The Madison, Wisconsin, Cap Times reports here on the lack of action to update the state's Code of Military Justice. Excerpt:

Following a year of historic National Guard activity in Wisconsin, and despite a 2019 federal investigation calling for reforms, state legislators have done nothing to change the law on how the force handles sexual assault and addresses discrimination.

The Guard, along with Gov. Tony Evers, say they support reforms to the state’s military law, called the Wisconsin Code of Military Justice, to align it with national standards for addressing sexual assault, victims rights and discrimination and other crimes within the force. 

“Gov. Evers continues to urge the Legislature to improve the Wisconsin Code of Military Justice as the National Guard Bureau recommended to protect our servicemembers and survivors and prevent sexual harassment and assault in the Guard,” said Evers spokesman Britt Cudaback in an email.

The Calley case, 50 years on

A milestone passed yesterday: a half-century since First Lieutenant William L. Calley Jr. of the U.S. Army was convicted at Fort Benning, Georgia, of murdering Vietnamese civilians. The Los Angeles Times marked the date with a column by Nicholas Goldberg about the case and the civilian prosecution of Charles Manson and his co-defendants that coincidentally ended the same day in Los Angeles.

Human Rights Watch comments on misuse of military courts, among other things, in Lebanon

A detailed Human Rights Watch report on current abuses of the legal system (including torture and disappearances) in Lebanon recommends:

Lebanon should urgently reform the military court system by removing civilians and children from their jurisdiction and ensuring that judges deem inadmissible all confessions and evidence obtained under torture. The Defense Ministry should refer all torture allegations to the public prosecutor and put in place a policy of zero tolerance for all forms of torture and inhuman or degrading treatment. It should ensure that all serving judges are fully independent and impartial, including ensuring that no judge is within the military chain of command.

Monday, March 29, 2021

Landmark decision by the Supreme Court on women officers in the Indian Army (not military justice, but . . . )

The Supreme Court of India has rendered yet another landmark decision on the subject of grant of Permanent Commission to women officers in the Indian Army, which is linked to another such decision rendered last year.

In February 2020, the Supreme Court had upheld the decision of the Delhi High Court which (in 2011) had termed the non-availability of consideration for Permanent Commission to women in the Indian Defence Services as discriminatory and unconstitutional. While women were allowed to serve as Short Service Commissioned Officers with terms ranging from 5 to 14 years, they were not eligible to be considered for Permanent Commission which was available to male Short Service Commissioned Officers.

However, while implementing the ibid judgement, certain more anomalies had crept in whereby the official establishment at the time of consideration for Permanent Commission, deployed a criterion of selection which, the women officers argued, was again discriminatory and an attempt to avoid giving full effect to the judgement. The bone of contention was the criteria for Annual Confidential Reports (ACRs) and Medical Standards wherein the women, now in their 40s, were being adjudged on standards applicable for much younger officers.

Agreeing with the Petitioners, the Supreme Court of India has rendered another landmark judgement wherein besides dealing with the issue at hand it has gone into nuts and bolts of gender discrimination and has directed the government to take corrective measures. The Court has pointed out that all these anomalies and grey areas in cadre management have emerged because of delayed implementation of the High Court judgement which was rendered a decade back. When the government had challenged the High Court decision in the Supreme Court, its implementation was not stayed by the latter, yet the establishment did not implement it.

More on the judgement, and the judgement itself, can be found at this link (Live Law).

Justice in Extreme Cases

OpinioJuris has an introduction to a new monograph. Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, by Prof. Darryl Robinson of Queens University, Ontario, Canada.

Justice in Extreme Cases is about the criminal law theory of international criminal law (ICL). The project grows out of my PhD studies at Leiden University, and was given helpful impetus from the Antonio Cassese Prize for International Criminal Law Studies, and the Social Sciences and Humanities Research Council of Canada. It took me much longer to write than I expected, but the years of being lost in some thorny foundational problems helped me to learn a lot.

Sunday, March 28, 2021

Car 54, where are you?

Ever wonder where your fellow Global Military Justice Reform visitors are from? Here are the figures for the last 24 hours:

United States 171

Canada 33

France 12

United Kingdom 11

Indonesia 9

Germany 6

Portugal 6

Pakistan 4

Turkey 4

India 3

Cambodia 3

Netherlands 3

Russia 3

Austria 2

Belgium 2

Colombia 2

New Zealand 2

Thailand 2

Vietnam 2

Other 9

Hits range from ~200 to ~800 a day.

Where are they now?

Carol Rosenberg of The New York Times reports here on what became of the first 20 people taken to Guantanamo Bay, Cuba. Their fates vary. Only two of the 20 remain in U.S. detention.

Saturday, March 27, 2021

Major-General Welch sentenced to prison, dismissal, restitution

A UK court-martial panel has sentenced retired British Army Major-General Nick Welch to 21 months' confinement, retroactive dismissal, and £48,000 in restitution, following his conviction for fraud in connection with an education allowance. Details here.

Friday, March 26, 2021

The German Polizei and American civilians

The U.S. Army published an article for Americans living in Wiesbaden, Germany. The article explains how the Polizei operate in the area, joint training they conduct with the Military Police, and how Americans can engage their services. 

The article also briefly mentions jurisdictional issues involved in prosecuting American civilians, and understandably reminds civilians that they may be prosecuted by the German government.  (Customarily, the Germans waive primary jurisdiction for military members to allow for trial by court-martial). The article fails to mention, though, that American civilians often escape criminal sanction for misdemeanor level conduct because the Germans aren't too interested in prosecuting relatively minor crimes, especially when there is no nexus to German citizens or their property.  

This issue has been of interest to me since I was an active duty JAG prosecuting Soldiers stationed in Germany. In 2010-2013, it seemed like the U.S. government had no method to criminally convict minor criminal conduct, such as domestic abuse or larceny, because civilians were not subject to the UCMJ. The only censure was to revoke permission to for the civilian to enter base or to remain in Germany on a Status of Forces Agreement-based visa. A tough problem that appears difficult to correct. Anyway, don't take this as permission to commit minor crimes. That's never a good idea!

Home entertainment

Does anybody watch SEAL Team? We learn the following from this summary on TV Line:

As soon as Jason was initially hauled in, Bravo Team ahead of their individual depositions was given “no contact” orders to not discuss the op/case with Jason or among themselves. Clay admittedly overshared a bit with Stella the World’s Best Girlfriend — namely, that Raqqa Jacques, the man who tortured Ray, had been their target — which Ray later blasted him for. Ray himself lawyered up before delivering his deposition as Chief Warrant Officer, a move that raised a flag for Jason’s JAG. If Ray was possibly throwing Jason under the bus, should Jason return the favor in a bid to share blame and hope for a lighter sentence? Or should Jason go ahead and take a plea deal (to Article 114/Reckless Endangerment, resulting in a “less-than-honorable discharge”)?

Make you want to watch? 

Veeps and salutes

Okay, folks, today's silly issue is whether Vice President Kamala Harris broke with tradition by failing to return hand salutes. Answer: nope, but we'll still hear some nattering about this. The Editor has written on presidential hand-salutes in the past (see also this) and will only add that there is even less to this issue than there is with respect to the President, who (unlike the Veep) is, according to the Constitution, a commander. My advice to the Vice: it's always appropriate to nod or utter a word of greeting, or, if militarily inclined, quite simply, "carry on" or "as you were." But that's about it.

Thursday, March 25, 2021

An amicus brief to the Constitutional Court of Colombia

Click here for an amicus brief to the Constitutional Court of Colombia. At issue is whether the military courts or the civilian courts should have jurisdiction over a case that involves a human rights violation. Excerpt (Google translation, footnotes omitted):

4. International standards on the scope of military criminal justice

In accordance with the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR), Colombia must guarantee that victims of human rights violations have access to an effective remedy so that these violations are duly investigated and, if applicable, processed and sanctioned.

The independence necessary to investigate and prosecute serious human rights violations committed by the military is not usually guaranteed when the military authorities themselves are in charge of investigating their members and trying them in military courts. For this reason, regional and international human rights organizations have criticized the use of prosecutors and military courts in cases of human rights violations against civilians, and have indicated that the jurisdiction of the military courts should be limited to crimes of a strictly military nature.

The Inter-American Court of Human Rights, the highest interpreter of the ACHR, has determined that “[f] re in situations that violate the human rights of civilians, under no circumstances can the military jurisdiction operate”. Similarly, in 2012, the Court held that "the criteria for investigating and judging human rights violations before the ordinary jurisdiction reside not in the seriousness of the violations but in their very nature and in that of the protected legal right". Likewise, as established in the judgment issued in May 2007 by the Inter-American Court in the Case of the La Rochela Massacre v. Colombia, this exclusion from the military jurisdiction applies to all stages of a procedure: "the military criminal jurisdiction is not the competent jurisdiction to investigate and, where appropriate, try and punish the perpetrators of human rights violations".

The Inter-American Commission on Human Rights (IACHR), an authorized interpreter of the American Convention, has ruled in the same direction. Specifically, the Commission has indicated that Colombia must refrain from using military criminal justice in cases of alleged human rights violations committed by police officers in the context of demonstrations. For example, in its admissibility report on the death of Jhonny Silva Aranguren, a student who died in a demonstration in 2005, allegedly at the hands of ESMAD, the Commission recalled that “special jurisdictions, such as the military, do not constitute an appropriate forum and therefore they do not provide an adequate remedy to investigate, judge, and punish possible violations of the human rights enshrined in the American Convention, such as the right to life.

Similarly, the United Nations Human Rights Committee, which ensures that governments comply with their obligations under the ICCPR, has urged States Parties for several decades to ensure that military personnel are subject to criminal jurisdiction. ordinary for crimes that are not "exclusively military in nature". According to the Committee, the “broad jurisdiction of the military courts to hear all cases related to the prosecution of military personnel ... contributes [e] to the impunity that such personnel enjoy and prevents their punishment for serious violations of the human rights”. In the same vein, in its most recent concluding observations on Colombia, the Committee held that the State must ensure that investigations into arbitrary deprivation of life “begin, develop, and end in the ordinary jurisdiction”.

Canadian Parliament needs to think outside the proverbial box to select CDS and Service Commanders


  • March 25, 2021. I disagree with the acting Chief of the Defence Staff (CDS), Lieutenant General Wayne Eyre’s intervention as reported  by the Canadian Press under the title: “Military playbook lacks plan for dealing with cases against defence chiefs. The playbook, being developed is intended to ‘help Canada’s top military commander deal with allegations of misconduct involving senior officers.”

Given the current state of affairs in the Canadian military, the last thing Canada should do is to allow the military to fix the problem, so to speak, by themselves and FOR themselves. 

To be fair, the Canadian military leadership  has already been given more than sufficient warning that the issue of sexual misconduct need to be addressed and corrected. Such public dire warnings go back to the early 90’s. Over the past decade alone, starting with the murderous conviction of then Colonel Russell Williams followed in 2015 by the damming report on Sexual Misconduct in the Military by retired Madam Justice Marie Deschamps, the military had more than ample opportunity and sole authority to bring about the required change of course. We now find out in 2021 that the vaunted Operation Honour has not only presented a distorted façade but that the anticipated progress in coming to grips with sexual misconduct under this moniker amounts to naught. The last thing we need at this stage is another playbook conceived and designed by the military brass. We are well past this point. 


"If  what you've done over the past 5years hasn't worked for you, 

then change what you're doing or the next 5 years will be the same!" 

John Carlton. 2019


As also noted in one of my earlier posts, the time has come to effect a real change of leadership in the top echelons of the Canadian Armed Forces command hierarchy.  

First of all, it is now time to not only change the Maestro but, as importantly, to devise a new selection process to pick the new Chief of the Defence Staff (CDS).

 Given the supremacy of Parliament in our system of governance, parliamentarians should play a leading role in that procedure.  

Second, in order to achieve positive result and inspire confidence and trust in each of the military and civil societies, in searching for the next CDS, there is a need to go "outside the box", that is to NOT restrict the pool of candidates to the current roster of lieutenant-generals and vice-admirals. 

By moving down the rank pyramid, one hopes that younger 'up and comer ' CAF members of the family of potentials leaders – both females and males - can be found to lead the armed forces towards a better future.  

Once that selection is made, the same procedure should be used for the selection of future leaders of the three Services.

Commonwealth Lawyers Association webinar, March 31

The Commonwealth Lawyers Association will be conducting a webinar on March 31 on Military Justice for Our Soldiers -- A Look at Different Military Justice Systems. It's open to everyone, and anyone who follows Global Military Justice Reform should tune in. According to the official announcement:

With the revelations in the recent report on Australian Special Forces, military justice is in the news again.  This webinar compares the military justice systems of Australia, India, the UK and Zambia and examines the benefits and shortcomings of each system.  

DATE : Wednesday 31st March


10.00 a.m BST, United Kingdom

11.00 a.m  CAT, Zambia

8.00 p.m  AEST, Australia

2.30 p.m  IST, India

Register here

The event will also be broadcast live on YouTube, you can subscribe to our channel here:

Chair :

  • Brian Speers , CLA President


  • His Honour Judge Alan Large, Judge Advocate General, UK
  • Brig. General Moses Phiri Rtd. Zambia
  • Col R. Balasubramanian, Rtd. Sr. Advocate of the Supreme Court of India
  • Alex Ward, Barrister, Navy Legal Officer, Administrative Appeals Tribunal Member, Australia and CLA Council Member

There will be an opportunity for a Q&A with the panel at the end of the webinar via the chat function

Biographies :

His Honour Judge Alan Large

Alan Large joined the Royal Navy in 1979 as a University Cadet.  He read law at Manchester University and was subsequently selected by the Navy for further legal training as a Barrister.  He was called to the Bar in 1988 and served in legal and logistics roles on shore and at sea.  He was the Supply Officer in HMS BRAZEN during the first Gulf War.  He left the Royal Navy as a Lieutenant Commander in 1993 and pursued a career as a civilian Barrister on the Western Circuit.  He was Head of Chambers from 1999 and was appointed a Recorder in 2005 and Deputy (part-time) Judge Advocate in 2008.

In 2010 he was appointed an Assistant Judge Advocate General (full-time).  He served as Resident Judge with the Army in Germany from 2010 to 2013 and then as Resident Judge in Bulford from 2013 –2020.  He was appointed Deputy Judge Advocate General in January 2020 and Judge Advocate General later the same year.

Judge Large is an active member of the Commonwealth Magistrates’ and Judges’ Association and  enjoys working with colleagues from other jurisdictions, particularly in relation to legal issues affecting the armed forces.

Judge Large lives in Wiltshire with his family.

Brig. General Moses Phiri Rtd

Brig Gen Moses Phiri (RTD) retired from the Zambia Regular Air Force in 2019 having served for 40 years in the Regular Airforce. During that time, he was Director of Legal Services  from 2001-2011 and Air Force Secretary at the Ministry of Defence from 2011-2019. During the same period (2001- 2019) he worked as a Senior State Advocate at the Ministry of Justice and carried out numerous litigation cases on behalf of the Attorney General. Hewas a member of the Southern Africa Development Community (SADC) Military Legal Adhoc Working Group and represented Zambia on many United Nations C34 meetings. He was one of the presenters on the Seminar on Legal Procedures Leading to Asset Recovery (2008) in Lausanne. He also served as CEO on Defence Industry. Brig. General Moses holds a Bachelors degree in law (LLB) from the University of Zambia and a Masters degree in Aerospace ( MBA Aerospace) from Toulouse Business School in France. He is advocate in the High Court of Zambia. He is married with four children.

Col R. Balasubramanian,  Rtd

Col R Balasubramanian (Retired) holds a Masters Degree in Law. He is a Senior Advocate designated by the Supreme Court of India, where he is currently practicing. He has more than 35 years of legal and judicial experience in dealing with legal cases including but not limited to Constitutional law, Administrative law and Military Law. He was commissioned in the Judge Advocate General’s Department of the Indian Army in 1985, and has held important legal positions in Indian Army He has written a number of articles/books on rule of law, peace keeping operations etc, and has participated in National and International Seminars on rule of law issues.   He was awarded the Vishist Seva Medal for Distinguished Service rendered in the Judge Advocate General’s Department of the Indian Army by Hon’ble President of India on 26 Jan 06, besides number of Commendations including Special Commendations by the Special Representative of  the UN Secretary General  and Force Commander United Nations (2002) for exceptional devotion to peace keeping duties in UNMEE.  He is married and has a son who is also a practicing lawyer and is settled at New Delhi, India

Alex Ward

Alex Ward was the president of the Law Society of South Australia in 2004–2005, president of the Law Council of Australia in 2011 and president of the Commonwealth Lawyers Association 2015 to 2017.

He is a commander in the Royal Australian Navy and and the chair of the Military Legal Service Ethics Advisory Committee.

Alex is  a part-time member of  the Australian Administrative Appeals Tribunal and in that handles compensation cases for military personnel.