Sunday, February 28, 2021

Add Puntland to the list

Authorities in Puntland, a region in Somalia, have come under fire for prosecuting freelance journalist Kilwe Adan Farah in military court. Excerpt from this Horn Observer account:

During the Saturday’s court hearing, Kilwe was brought at the First Instance Court of the Armed Forces where a military prosecutor put forward five charges: Instigation of delinquency; Instigation of Disobey to the Laws; Publication or Circulation of False, Exaggerated or Tendencious News Capable of Disturbing Public Order; Offence against the Authorities by Means of Damaging Posters; and Bringing the Nation or the State into Contempt. The prosecutor asked the Military Court to sentence Kilwe with 10 years imprisonment.

However, the defense lawyer Mustafe Mohamed Jama, who is representing Kilwe on behalf of [the Somali Journalists Syndicate], challenged the military prosecutor’s charges and questioned the military court’s jurisdiction over the journalist’s case. The lawyer also insisted that his client is a professional journalist and that journalism was not a crime under the Somali laws and therefore there was no a case to be heard at the Court.

The report adds:

A London based international barrister, Michael Polak who is helping with the Kilwe case stated "moving from a charge of attempted murder, which has been abandoned, to offences clearly aimed at preventing journalistic activity and pursuing Kilwe through the Military Court when he is a civilian shows that these proceedings are a farce. The President of Puntland and the Military Court Judge must step forward to end this embarrassing affair.”

The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, promulgated by the African Commission on Human and Peoples' Rights provide:


a) The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.

b) While exercising this function, Military Courts are required to respect fair trial standards enunciated in the African Charter and in these guidelines.

c) Military courts should not in any circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals should not try offences which fall within the jurisdiction of regular courts. [Emphasis added.]

Despite this, a number of African countries persist in trying civilians in military courts.

Friday, February 26, 2021

A first in Spain

For the first time, a woman has been named to head a Spanish military court. Details here. Excerpt:

A woman will preside for the first time over a Spanish military court and will do so in Seville. Auditor colonel María Inmaculada Benavente Cózar was elected this Thursday by the Plenary of the General Council of the Judiciary as auditor president of the Second Territorial Military Court of Seville by obtaining 16 of the 21 possible votes, with the blank votes of the members Álvaro Cuesta, Concepción Sáez, Pilar Sepúlveda, Clara Martínez de Careaga and Rafael Mozo.

Judge Benavente has a most impressive record, according to this report.

Town Hall 13: So you want to be a CAAF judge?

Everything you always wondered about 
but were afraid to ask. 
Please join us for a discussion of the 
standards for picking the next CAAF judge

Monday, March 19:00 – 10:30am (US East Coast time)
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More turmoil for Canada

The New York Times tells us,

Canada’s Top Military Officer Steps Aside Amid Investigation

Canada’s top military officer temporarily stepped aside as chief of the defense staff after military police opened an investigation into unspecified accusations against him.

The top military officer, Adm. Art McDonald, stepped aside on Wednesday in the midst of a separate investigation into the previous chief of the defense staff, Jonathan Vance, a now retired army general. Reports surfaced this month that Mr. Vance behaved inappropriately with two female subordinates.

Citing the police investigation, Harjit Sajjan, the defense minister, declined to offer any specifics on Admiral McDonald’s decision to step aside. The Department of National Defense also did not offer any details, and Admiral McDonald has not publicly commented on the accusations.

“I take all allegations of misconduct seriously and continue to take strong action on any allegation of misconduct that is brought forward,” Mr. Sajjan said in a statement released late Wednesday night on Twitter. “No matter the rank, no matter the position.”

Thursday, February 25, 2021

Spanish Constitutional Court reverses and remands Civil Guard's case

Constitutional Court of Spain

It's a little complicated, but the Spanish Constitutional Court has decided an interesting case in favor of a Civil Guard who had been suspended for two years. In a nutshell, the union of Civil Guards (AUGC) posted a story on its website that was critical of a junior officer. The officer sued the union (presumably for defamation) in civil court and lost. In that litigation, three members of the Guardia Civil testified for the union. After the case was dismissed, the officer filed a complaint against them, and they were subjected to discipline. The Central Military Court and the Military Chamber of the Supreme Court upheld the punishment. On review, the Constitutional Court, in the case of J.C.C., reversed and remanded for further proceedings because the Guards had a duty to testify in the civil proceedings. The court directed the Central Military Court to reconsider the case in light of the right against self-incrimination. 

The Constitutional Court's press release can be found here and the full judgment can be found here.

Choice of forum in Italy

The Supreme Court of Cassation, Rome

In 1999, Emanuele Scieri, an Italian soldier, was killed in his barracks in Pisa. Eventually charges were brought against five fellow-soldiers (only one of whom is still on active duty) and a jurisdictional standoff occurred: military trial in Rome v. civilian trial in Pisa. The Supreme Court of Cassation has just ruled that the trial should be held in the Pisa court. Details can be found here and here. The decision is not yet on the Supreme Court's website.

Wednesday, February 24, 2021

Speedy justice in Uganda

Speaking of Uganda, consider this excerpt from a statement by Human Rights Watch:

On February 17, military police beat at least ten journalists covering Uganda’s opposition leader Robert Kyagulanyi — also known as ‘Bobi Wine’ — as he delivered a petition to the United Nations Office of the High Commissioner for Human Rights in Kampala. His petition was to protest human rights abuses and abductions of his supporters in the run up to and after January’s contested presidential election.

The next day, the army issued an apology for the beatings and announced that a military court had given seven members of the military police a “severe reprimand” for assaulting the journalists, and sentenced them to two months detention in a military facility. While an important step, the army did not share details about its investigations or the military trial process. Two of the assaulted journalists told Human Rights Watch they had not even been informed about the proceedings far less called to testify.

Victims' rights, anyone? Can a trial be too speedy? Were these summary trials? If so, was that a proper disposition of the charges?

Further misuse of military courts in Venezuela

The other day, Global Military Justice Reform ran an excellent report by contributor Prof. Christina Cerna on a recent and regrettable decision of the Supreme Court of Venezuela. Juan Bautista Salas, writing here for El Impulso, adds to the story of the court's failure to shut the door completely on the trial of civilians by military courts. He concludes:

The use of military justice against civilians in Venezuela has a long history, but it became common especially in the mass protests of 2017, in which the government, to silence protesters, used this jurisdiction extensively. Those who have ended up before a military judge have not only not seen their judicial guarantees respected, but have also been victims of torture and mistreatment, as confirmed by the United Nations Independent International Fact-Finding Mission about Venezuela.

The hesitant attitude of the TSJ on this matter opens the doors for more citizens to end up before an instance totally controlled by the national Executive, since the military judges are not chosen by the TSJ as mandated by the Constitution but by the Ministry of Popular Power for the Defense, as we denounced in a study carried out on the matter, warns Access to Justice.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Some states are persistent violators of this core principle. Prime examples include Uganda, Egypt, Lebanon, Russia, and Venezuela.

A short history of the misuse of military courts in Uganda (and a note about arrests in Lebanon)

Mohammed Ndifuna
has written this Maverick Citizen account of the misuse of military courts to suppress democracy by trying civilians. Numerous useful links are provided. He concludes:

Unless the trial of civilians in military courts is urgently ended impunity among security agencies will continue unabated. Failure to do this has profound implications: citizen interest in elections will wane as it will be associated with high political risk; citizen confidence and trust in the judiciary will be undermined; and dictatorship will be entrenched as the independence of the judiciary and electoral processes in Uganda are continually blighted by military interference and subversion.

It is therefore imperative that the state takes measures to amend Section 199 (1)(h) of UPDF Act 2005 under which civilians may be tried in the military courts.

Shifting gears, Uganda is not alone in misusing military courts. Another prime offender in this respect is Lebanon, as witness this current development.

Aya Majzoub, Lebanon researcher for Human Rights Watch tweeted earlier today that “the structure of Lebanon’s military courts undermines the right to a fair trial since many of the judges are military officers, appointed by the Defense Minister, and are not required to have any legal training to work as judges.”

Tuesday, February 23, 2021

Two cents plain

The Joint Service Committee on Military Justice is soliciting suggestions for changes in the Manual for Courts-Martial. Here is a link to the Federal Register notice. And here is what the Editor has just submitted:

I have three recommendations. 

First, the President should prescribe a burden of proof for nonjudicial punishment, applicable to all of the armed forces. The Code is supposed to be uniform across service lines and there is no reason for inter-service variation on this basic legal issue. 

Second, and relatedly, given the possible adverse effect of NJP on military personnel, and the fact that one service has been able to function perfectly well with the beyond-a-reasonable-doubt standard, that should be the standard for all services. 

Third, the President should promulgate a single set of rules of professional responsibility, or should direct the TJAGs to produce a joint document, applicable across the board. Again, there is no reason for divergent rules on this important subject.

Monday, February 22, 2021

Calm before the perfect storm?


This may be completely wrong, but military justice in the United States seems to be at an inflection point. Consider the following:

  • The topic of racial disparities in the administration of justice is front-and-center
  • The Biden administration and Secretary of Defense Lloyd J. Austin III will need to focus for real on the unresolved issue of sexual assault and harassment in the armed forces
  • Congress will return to the various approaches that have been floated concerning who should have power to make decisions about the disposition of major offenses -- and what constitutes a major offense, as opposed to a minor disciplinary matter
  • Will the years-long decline in courts-martial and appeals continue?
  • A search is on for a successor to Chief Judge Scott W. Stucky of the U.S. Court of Appeals for the Armed Forces
  • The constitutionality of court-martial jurisdiction over military retirees is in the crosshairs at both the U.S. Court of Appeals for the Armed Forces (Begani) and the U.S. Court of Appeals for the District of Columbia Circuit (Larrabee)*
  • The fallout of the January 6 insurrection for military accession and separation standards and procedures, social media usage, and the rules on participation in partisan political activities and extremism
This is a long list of institutional design and personnel policy issues to be on the screen in real time. Are there other bullets you would add? (Real names only, please.)

* Disclosure: The Editor is one of Mr. Larrabee's attorneys.

Sunday, February 21, 2021

Questionable Venezuelan Supreme Court decision

The jurisprudence of the Inter-American human rights system has established that all crimes involving violations of human rights must be tried in ordinary criminal courts even if the perpetrator is a member of the armed forces because military courts do not satisfy the requirements of impartiality and independence required by the due process provisions of the American Convention on Human Rights.  The military justice system is reserved exclusively to try members of the military in active service for the alleged perpetration of strictly service-related offenses.

Article 261 of the Constitution of the Bolivarian Republic of Venezuela provides in relevant part that "The commission of common crimes, violations of human rights and crimes against humanity will be judged by ordinary courts.  The jurisdiction of military courts is limited to crimes of a military nature."  The non-governmental organization "Access to Justice" (Acceso a la Justicia) denounced that the Constitutional Chamber of the Venezuelan Supreme Court, in Judgment No. 246, issued on December 14, 2020, has established again that military courts have jurisdiction to try civilians.  Despite the explicit constitutional prohibition on military courts trying civilians, the Constitutional Chamber held that in certain circumstances it is permissible, marking a retrogression in human rights protection in Venezuela.

Saturday, February 20, 2021

Allegations against former Chief of Defence Staff of Canadian Forces

Throughout the month of February 2021, senior decision-makers in the Department of National Defence (DND) and the Canadian Forces (CF) have been under scrutiny in light of allegations against the former Chief of the Defence Staff (CDS), General Jonathan Vance, first reported by Mercedes Stephenson of Global News on 2 February 2021.

Although General Vance may have retired from his position as CDS, pursuant to subsection 60(2) of the National Defence Act (NDA), he remains subject to the Code of Service Discipline, even after retirement, for any infraction that may have occurred while he was serving in the Regular Force (and, therefore, subject to the Code of Service Discipline at that time).

On 4 February 2021, it was confirmed that the Canadian Forces National Investigation Service (CFNIS) had opened an investigation into the allegations published by Global News.  There is no indication of when the investigation will likely be completed.

However, there are several potential problematic obstacles to the operation of the Code of Service Discipline if the former CDS is charged with one or more Code of Service Discipline offences.  That issue is the subject the Blog article: "Prosecuting the Chief of the Defence Staff".

On 9 February 2021, the Standing Committee on National Defence met to debate a motion requesting a meeting to examine these allegations, and, in particular, whether government decision-makers, including the Minister of National Defence (MND), Harjit Sajjan, failed to take appropriate measures when the former DND/CF Ombudsman, Gary Walbourne, allegedly brought concerns to the attention of the MND in March 2018.

The afternoon of Friday, 19 February, 2021, the Standing Committee on National Defence convened the first of a series of meetings to hear from: the MND, the Deputy Minister (DM) of National Defence, and representatives from the Privy Council Office (PCO).  The next meeting will be held Monday, 22 February 2021.

During this meeting, some members of the Standing Committee, including Conservative Member of Parliament, (and a Vice-Chair of the Committee) James Bezan, accused the MND of being evasive.

The MND repeatedly asserted that he could not disclose any information concerning any discussions he purportedly had with the DND/CF Ombudsman, citing confidentiality and the importance of the 'independence' of the Ombudsman.  For additional commentary on the nature of the DND/CF Ombudsman's Office, confidentiality, and his purported independence, see: "A Word or Two About the DND/CF Ombudsman".

We may safely anticipate that this matter, and its impact on General Vance's flagship initiative, Op HONOUR, will not be resolved any time soon.

Wednesday, February 17, 2021

Equal access to the Supreme Court

Equal Supreme Court Access for Military Personnel: An Overdue Reform, 131 Yale L.J. Forum ___ (2021) (forthcoming), by Prof. Brenner M. Fissell, Cdr. (Ret). Philip D. Cave, and the Editor, is available here on SSRN. Abstract:
While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.
In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government.

Tuesday, February 16, 2021

Soldiers dismissed for being gay can reclaim forfeited medals

The BBC and the Guardian are reporting comments by Baroness Goldie, Minister of State for Defence promising that any former service person (or their families) whose medals or decorations were forfeited upon being convicted for homosexuality before the ban on homosexuals serving in HM Forces was finally lifted in 2000, can apply for their return.

Whilst it is high time this historic injustice was addressed, particularly following the case of Joe Ousalice, it is not clear what the mechanism for the return of their decorations is. The Armed Forces Bill currently progressing through Parliament deals with pardons for historical service offences under the Army Discipline and Regulation Act 1879, the Articles of War of 1749 and the Articles of War of 1878 which cover sexual acts that are no longer unlawful. Minister for Defence People and Veterans, Johnny Mercer (late 29th Commando Regiment, Royal Artillery) has said he is ashamed by this historic injustice. However, nothing has been said about restoring the lost pension payments and pay caused by these convictions. Hopefully as LGBT+ History Month progresses HM Government will annoucne something to address those issues as well. 

The Armed Forces Bill 2021: what does it hold for the Service Justice System?

On 8th February 2021 the Armed Forces Bill 2021 had its second reading in the House of Commons. Opening the debate Johnny Mercer, Minister of State for Defence People and Veterans (late 29 Commando Regiment, Royal Artillery) noted that “the Bill of Rights of 1688 required Parliament to pass an Act every five years to maintain a standing army” and that ‘the raising or keeping a standing army within the United Kingdom…in time of peace, unless it be with the consent of Parliament, is against the law’.

In 2021, Parliament now reviews what has evolved into the Armed Forces Act 2006, the statutory underpinning of the Service Justice System, which Mr Mercer rightly called “essential for our forces to act effectively, and a vital bulwark of our democracy.” The Bill has been eagerly awaited by practitioners and observers following publication of the Service Justice Review, otherwise known as the Lyons Report. The Lyons Report made a number of recommendations, some of which would begin to correct historic deficiencies in the Service Justice System and others which were ill-advised to say the least.

Despite a threat of Judicial Review by the campaigning group The Centre for Military Justice, the most ill-advised proposal, to remove offences of murder and manslaughter, serious sexual offences and domestic violence committed in the UK from the jurisdiction of the Service Justice System, will not go ahead. The refusal to implement this recommendation is eminently sensible as it would have left the Service Justice System de-skilled in dealing with these offences, as the majority of the Armed Forces are now based in the UK, but still responsible for prosecuting the offences outside the UK.

For more than 15 years this issue has been dealt with by a protocol between the Director of Service Prosecutions and the Director of Public Prosecutions. Clause 7 formalises that process and requires similar protocols between the Director of Service Prosecutions and the Lord Advocate and the Director of Public Prosecutions for Northern Ireland. It remains to be seen how this will impact on the number cases retained within the Service Justice System and what impact this will have on skill sets of the Service Prosecution Authority and the Service Police.

The Constitution of the Court Martial

The most obvious changes will be to the constitution of the Court Martial. Boards will now consist of either three or six members, although a six person board may continue with five members by judicial direction, and those of substantive OR-7 rank will now be permitted to sit on boards. Whilst a three person board to deal with offences carrying a maximum sentence of less than 7 years remains as problematic as ever, these changes represent a step towards the 12 person, all ranks, military juries that are a feature of the United States’ system. The inclusion of OR-7s (chief petty officers, colour sergeants (Royal Marines), staff sergeants and flight sergeants) is a step towards the judgement of their peers it remains to be seen if OR-7s will feel able to act with sufficient independence bearing in mind the presidency of the Board remains the preserve of lieutenant commanders, majors and squadron leaders. This is likely to be a particular issue in the Royal Navy where OR-7s are usually younger and with less service than the other services.

Meanwhile, changes are afoot on the bench as another recommendation of the Lyons Report is implemented, amending section 362 of the Armed Forces Act 2006 to permit the Lord Chief Justice, at the request of the Judge Advocate General to nominate Circuit judges as well as High Court judges to sit as judge advocates. The rationale for this recommendation was apparently to ensure the public do not think the Service Justice System is a military “closed shop”. Given all judge advocates are recommended for appointment by the same commission which recommends appointments of Circuit Judges, and all judge advocates sit in the Crown Court in any event it is not clear how such a public perception was sustainable. Not to mention the fact there are eight, rarely used, deputy judge advocate generals including two who are Circuit judges available as well. When one considers that the power to nominate a High Court judge has been used only a handful of times and that the new protocol will likely reduce the amount of work that might merit the deployment of either a Circuit or High Court judge this reform appears to be little more than window dressing and rather discourteous to the incumbent judge advocates. Although it would allow the Judge Advocate General to cover sick leave in a new way.

Majority Verdicts

Simple majority verdicts for all offences have long been a concern and proved a surprisingly resilient to challenge, leaving service personnel without the protections provided in civilian life. However, a major step in the right direction is taken in this Bill as s.160 of the 2006 act will be amended so that for the most serious offences a qualified majority of 5:1 or 4:1 will be required, bringing the Service Justice System more in line with the Crown Court. However, service personnel charged with offences where a civilian could elect Crown Court trial remain at risk of conviction and imprisonment by a simple majority. It is interesting to note that in rejecting the last challenge to the simple majority verdict in Blackman the Court Martial Appeal Court concluded that avoiding “hung boards” was a good reason to treat service personnel differently. However, this change implicitly creates the risk of “hung boards” so we must conclude that Her Majesty’s Government respectfully disagrees.


A series of changes to sentencing are also made by the Bill. A long-standing gap in the Court Martial’s sentencing powers is closed as the power to disqualify from driving is brought in. It was always unclear why the Court Martial was not empowered to disqualify even when dealing with the most serious driving offences. However, there appears to be an error in clause 14(5) which specifies the uplift period when disqualification is coupled with Service Detention. The period is set at half the period of detention (so the disqualification starts on release) but the release provisions for Service Detention rarely permit detention at the halfway point.

There are obvious risks to operational effectiveness if a service person is disqualified from driving. This will doubt less give rise to submissions in relation to the Service Interest. How rigorously the Court Martial Appeal Court will apply the analogous principles of exceptional hardship will be interesting to see.

A further change is the power to make deprivation orders depriving offenders of property used in the course of an offence. This aligns the Court Martial with the Crown Court but perhaps surprisingly is extended to Summary Hearings. This means that the Commanding Officer, sitting in a jurisdiction which is accepted as not being compliant with Article 6 of the European Convention on Human Rights, will have the power to make deprivation orders and determine disputes as to ownership of the property in question. It is not clear what remedy a third party claiming ownership of the property would have. The 2006 Act will be amended to make clear deprivation is a punishment, meaning there is an automatic right of appeal for the service person. However, the Bill does not require the Secretary of State to provide for an appeals procedure in the Regulations. This will no doubt provide for some interesting litigation!

The final change to sentencing comes in relation to the Royal Marines. Clause 12 permits a commanding officer to sentence a corporal (Royal Marines) to detention. This aligns with the powers of a commanding officer elsewhere in the Royal Navy who can detain a leading rate. It also aligns the powers of a Royal Navy commanding officer with that of the Royal Air Force. However, the Army continues to permit the commanding officer only to detain lance corporals (or equivalent) and below. 

Post Sentence

Two changes are made post sentence. Firstly clause 17 amends the Rehabilitation of Offenders Act 1974 to specify a six month period of rehabilitation for those sentenced to a Severe Reprimand or a Reprimand. Secondly, amendments have been made to s.164 of the Policing and Crime Act 2017. It is this second change which is perhaps most significant as these changes permit posthumous pardons for historical service offences under the Army Discipline and Regulation Act 1879, the Articles of War of 1749 and the Articles of War of 1878. This will be a way for families to seek to redress historic wrongs and potentially seek the return of medals and pension payments. However, the convictions will remain.

These changes will dovetail with commitment of Her Majesty’s Government to return decorations to those who were convicted of offences relating to homosexuality before the ban of homosexuals serving in HM Forces was finally lifted in 2000.

Correcting Mistakes

Clause 4 provides for a slip rule in Summary Hearings, preventing the need to apply to the Summary Appeal Court to correct mistakes of law which could be corrected in the Magistrates’ Court under s.142 of the Magistrates’ Court Act 1980. A similar rule is also to be introduced for the Summary Appeal Court and the Service Civilian Court by clauses 5 and 6. This brings these courts into line with the Court Martial and is particularly timely given the case of R v McIntyre [2020] EWCA Crim 1297 which reminded everyone of the complexity of sentencing in the Service Justice System.

Service Complaints

A concerning reform is found in clause 10 which reduces the time to lodge an appeal against a outcome of a Service Complaint from six to two weeks and similarly reduces the time available to lodge a complaint with the Ombudsman. This is said to be part of ‘part of wider reforms to increase efficiency and speed up the process within the statutory service complaints system’ and reduce ‘speculative appeals’. However, anyone familiar with the Service Complaints will no doubt regard this as an effort to make it harder for those wronged by the system to seek redress.

Service Police Complaints Commissioner

Another Lyons Report recommendation, clause 11 creates a much needed source of independent oversight for the Service Police. How robust the oversight will be but it is to be welcomed. Particularly following the stubborn refusal of the Provost Marshals to come into line with their civilian colleagues when comes to handling interviews under caution during the Pandemic.

Armed Forces Covenant

Finally, Clause 8 requires a specified person or body exercising a relevant housing, education or healthcare function, to have due regard to the principles of the Armed Forces Covenant. This will hopefully give some bite to the Covenant and provide assistance to those who have served and continue to serve in HM Forces.


There is much to welcome in the Bill, particularly around the constitution of the board which give service personnel some of the protections they would enjoy in civilian life. However, there remains much to be done. Several of the more ill-advised recommendations of the Lyons Report, such as the abolition of appeals in preliminary proceedings and the restrictions on which offences can be tried in the Service Justice System remain and can be brought in by secondary legislation or administratively. It is important that the case for a robust, expert, fair and independent Service Justice System continues to be made in both Houses of Parliament and in the courts. 

Racial disparties -- a CAAFlog panel discussion

CAAFlog will be hosting a "conversation about racial disparities in military justice." Feb. 24, 6:00 p.m. From the notice:
"Racism has long corrupted American military justice – famously exemplified by the 1917 Houston riots, which resulted in the Army’s summary execution of 19 African American soldiers after sham trials. In 2019, the Government Accountability Office found that in the Army, Navy, and Marine Corps, black service members “were about twice as likely as white servicemembers to be tried in general and special courts-martial.” Such disparities still exist within the American military’s criminal justice and disciplinary systems, and demand action.
This is precisely why the National Institute of Military Justice, HOFSTRA University - Maurice A. Deane School of Law, and Southwestern Law School's Armed Forces Law Society are co-hosting this important event.
Moderator Rachel Van Landingham - NIMJ President-elect, Professor of Law, Southwestern Law School, Lt Col, USAF (ret.), will lead a candid discussion with an impressive panel including:
President of Protect Our Defenders, Don Christensen, Colonel, USAF (ret.)
Joshua Kastenberg, University of New Mexico Law School, Lt Col, USAF (ret.)
Lieutenant Colonel Patricia Harris, US Army (ret.)
Ms. Coretta King (US Air Force veteran)
Colonel Raymond Jackson, US Army (ret.)
This is not your typical ZOOM display of talking heads; this is going to get real.
Please join us on Wednesday, February 24th at 6:00 p.m. Eastern/3:00 p.m. Pacific.
Click here or use ZOOM ID: 967 4003 3994 and Passcode 165249."
​Event Link here.

Monday, February 15, 2021

Armed Forces Bill 2021 -- Centre for Military Justice weighs in

The Centre for Military Justice, a British NGO, has weighed in on the UK's Armed Forces Bill 2021. Its website has this statement. Excerpt:
Very regrettably, the clause does not give any indication about whether certain types of offences occurring in the United Kingdom should be dealt with in one system or another. It is absolutely vital that it should. The Lyons Review recommended that murder, manslaughter, rape, sexual assault by penetration, domestic abuse and child abuse alleged to have occurred inside the UK should be dealt with by the civil justice system, not the service justice system. These are offences that disproportionately affect women and the women we represent have direct experience of them and want their cases to be dealt with in a civil court. This clause does not go nearly far enough and MPs are strongly urged to use the debate to support the Lyons Review recommendations which were the product of two years of careful, evidence-based analysis. HHJ [Shaun] Lyons’ recommendations also reflected the clear intention of the Government and Parliament when it passed the law in 2006, which made clear that it was not their intention that offences such as rape, where they occurred in the UK, should be handled in the service justice system at all. We hope an amendment will be tabled that would create a presumption that certain types of serious offences, where they occur in the UK, should proceed in the civil not the service justice system, thus returning the system to that which Parliament had originally intended.
Sadly, there is nothing in the Bill about the kinds of reforms that might help the Government address the serious criticisms of the Overseas Operations Bill. In particular, the Lyons Review (policing report) urged that consideration be given to enabling civilian police investigators to deploy in support of the service police when engaged in the very difficult task of investigating serious crime overseas. This would help address one of the fundamental criticisms of the Overseas Operations Bill, which is that it does not address the cause of all the re-investigations and litigation following the war in Iraq – which was poor quality, one-sided (or even non-existent) investigations by commanding officers or service police, of serious allegations of abuse.
Nor is there anything in the Bill about the appointment of independent judges who could oversee and review detention decisions overseas, particularly when dealing with insurgents, providing oversight and protection for the detainee, and lawful authority and legal protection to soldiers making difficult decisions on the ground. This has been recommended by several commentators on the Bill and remains notably absent.

Sunday, February 14, 2021

Shocker from Uganda -- presidential meddling in court-martial

Imagine that! A country's president personally meddling in a court-martial. In Uganda. Excerpt:
President [Yoweri] Museveni, while campaigning in Gen [Kale] Kayihura’s home district of Kisoro at the turn of the year, said he would consider the request by some residents in the district to drop the charges against Gen Kayihura.
Lt Gen [Andrew] Gutti, the man before whom Gen Kayihura is supposed to stand trial, now says he doesn’t know how to proceed given the promise by the President – who is also the commander-in-chief of the armed forces – and the pressure being mounted by the residents of Kisoro.
For starters, the President should not be interfering with cases that are ongoing in courts of law, whether military or civilian courts.
The proper way should have been for him to notify the people pushing for charges to be dropped that the President doesn’t have such powers under the law. A person charged with an offense – whether in the military or civilian courts – should be tried to conclusion, unless the prosecuting body independently decides to withdraw the charges.
The President is, of course, not a prosecuting authority. The only way the President gets involved in criminal matters of this sort, is in case one is sentenced to death, to sign off the execution order. The other way is to exercise the prerogative of mercy and pardon a convict, but of course this only happens after the trial has been concluded.

A common but indefensible error

No, sir, it wasn't Groucho Marx, it was Georges Clémenceau. Read to the end of this article by a self-described "Kashmir-watcher" about a case in Pakistan.

Friday, February 12, 2021

Uganda is not honoring a key human rights doctrine

A Ugandan court-martial has sentenced two civilians to 100-year terms for killing a policeman and committing other crimes. This violates, among other human rights instruments, the African Charter on Human and Peoples' Rights. Details of the trial can be found here.

Are you a glutton for punishment?

The U.S. Naval Institute has posted online the 4205-page record of trial in the general court-martial of SEALs chief petty officer Edward R. Gallagher. BZ to the Naval Institute.

Thursday, February 11, 2021

Military court annuls the "exile" of a Guardia Civil union leader


Spain's Guardia Civil (Civil Guard), one of two national police forces, is militarized and performs civil policing duties under the command of the Ministry of Interior and the Ministry of Defense.  In addition, in Spain, the Guardia Civil is unionized.  The Unified Association of Civil Guards (AUGC) fights for the rights of the members of its many affiliates.  A Civil Guard, who was the provincial spokesperson in Caceres, was punished by the Director General of the Civil Guard and the Ministry of Defense with removal to another province allegedly for disciplinary offenses.  The AUGC charged that the punishment against this member of the Civil Guard, whom it identified as the victim of a persecution campaign, was motivated exclusively by the fact that he was the legitimate representative of the AUGC members in Caceres.  The Civil Guard appealed to the Central Military Tribunal and the press reported on the judgment, issued on January 27, 2021,  which annulled the "exile" of this member of the Civil Guard.  

The Civil Guard member had been found guilty of failing in the performance of his duties which allegedly had prejudicial effects on the daily work of his unit.  He was to be transferred to another province ("exile") despite the fact that he had worked in Caceres for over 30 years and his wife and three children would be unable to accompany him.  Several examples of his alleged performance failure were cited, such as arriving late to shooting practice, or exhibiting a very passive attitude, or remaining seated in the interior of a car, verbal conflicts with his superiors and contradicting  their orders, or several days on which he refused to put on a bullet-proof vest.

The Minister of Defense had rejected the Civil Guard's appeal against the resolution of the Director General.  Consequently, the Civil Guard filed a writ before the Central Military Tribunal in which he alleged that the sanction should be annulled since the time period within which he was to have been notified had expired.  The Central Military Tribunal agreed with him and noted that this argument was dispositive of the case and that it was not necessary to assess his other arguments.  The Tribunal did not stop there, however, and noted that the resolution which resulted in his punishment had been based on agglomerating a series of heterogeneous events that occurred between October 10, 2017 and June 6, 2018, concluding that they constituted a failure of performance, when in fact these acts were absolutely superfluous and irrelevant for the application of any kind of disciplinary punishment. The Central Military Tribunal noted that despite the length of the 585 page file, nothing had been proven regarding the negative effect of any of these acts on the normal functioning of the Civil Guard.

Tuesday, February 9, 2021

National Guard assistance to foreign military justice systems

Here's quite an interesting article about cooperation between judge advocates in the Michigan National Guard and the Armed Forces of the Republic of Liberia. It's part of a larger National Guard effort and worth knowing about.

Sunday, February 7, 2021

Bus stop

 According to a recent post on another blog regarding events on 6 January:

For both of my esteemed fellow military justice scholars [Prof. Rachel E. VanLandingham and the Editor], the potential for punitive action seems to be that Emily Rainey organized the group that traveled from North Carolina to DC for the protest. As [Eugene R.] Fidell notes, “If you’re the organizer, you are exercising the leadership role. That does create a problem with” DoD Directive 1344.10. On this point, VanLandingham seems to agree, noting, “It sounds like she was leading, and that’s where the real problem is going to come in.”

While it seems that both professors are correct to conclude that Rainey performed a “leadership role” in organizing a group that attended the rally, it is less clear how doing so might violate DoD policy. Service members are not allowed to “participate in partisan political…rallies,” but in this context prohibited “participation includes more than mere attendance as a spectator.” 

In a separate piece co-authored by Fidell and VanLandingham and posted on Just Security, the professors expand on their analysis asserting that active-duty personnel may have violated the UCMJ by attending the protest. However, by my assessment their analysis both misconstrues the relevant DoD policy and conflates mere attendance at the rally with participating in the Capitol siege.

The post concludes, in bold type:

[S]o far there is no indication that any active-duty service member violated applicable law or policy just by attending the “Save America Rally.” For now, this is true of Captain Emily Rainey as well – even if she helped organize and lead a road trip to Washington, DC. [Emphasis added.]

The post both misapplies the governing regulation and incorrectly accuses us of having conflated participation in the seditious January 6 events at or inside the Capitol with mere attendance at the Ellipse rally. Readers are encouraged to consult what we actually said to and wrote in our posts.

The flawed conflation accusation aside, what is the heart of the matter? This: the only activity specifically permitted by the punitive DoD regulation on political activity by members of the armed forces in connection with partisan political rallies is “mere attendance as a spectator.” 

The notion that military personnel can lawfully coordinate, advertise, organize, and “lead” (in Captain Rainey’s words) busloads of people to attend a partisan political event like the Ellipse rally disregards both the letter and the spirit of the regulation. 

Context matters. Our comments were not about anyone's “spectator” status at the rally.  Instead, they dealt with Captain Rainey's reported conduct before that event. Per her Facebook posts, she did considerably more than simply offer a ride to some random hitchhiker to Washington; according to press accounts, she helped advertise the event, arranged bus transportation for numerous other individuals, and coordinated their actual attendance. If that constitutes “mere attendance,” then baking a dozen loaves of bread for the neighborhood is the same as eating a slice.

An officer who organizes a busload of people to attend a partisan political rally has engaged in prohibited “participation” in a partisan political event (and, indeed, would have done so even if the officer herself had not, in the end, attended the rally). Advertising the event on social media, urging others to attend, and coordinating their transportation is no different, for purposes of the regulation, from obtaining a required permit; hiring a sound stage, entertainers, an auditorium, or the security force; alerting the media; or doing any of the countless other things that are necessary for a successful partisan political event. All are verboten and in our view, a military judge or a commander exercising non-judicial punishment authority under Article 15, UCMJ, would hold that a person subject to the Code who organized a group bus trip for travel to the Ellipse rally had violated the regulation and was guilty of an offense under Article 92(1), UCMJ. 

Perhaps the Army will decide not to bother charging Captain Rainey. After all, she was already in the process of resigning her commission, so why make her a martyr? But on the face of it, it is hard not to see a violation of the Code if the facts are as they seem to be.

Saturday, February 6, 2021

Another civilian to be tried by court-martial in [guess the country]

Okay, it's Pakistan. This time it's for an offense under The Official Secrets Act, 1923. You can find a link to the January 28, 2021 decision of the Peshawar High Court in Khattak v. Goverment of Pakistan in this article.

Second Reading of Armed Forces Bill

The BBC reports here on coming events in Parliament, including the Second Reading of the Armed Forces Bill on February 8. Excerpt:
The main business is the Second Reading of The Armed Forces Bill, and alongside it, a motion to approve the Armed Forces Act (Continuation) Order 2021.
This is a parliamentary process which has its roots in the 17th Century when, after the Civil War, Parliament guarded against the emergence of military tyranny by requiring that the very existence of the armed forces had to be confirmed by an annual vote.
This has since evolved into a system where the Commons passes an order every year under legislation that has to be renewed every five years. The legislation also underpins military law, so without the five-yearly renewal of the Armed Forces Act, the whole system of military justice would lapse, too.
The current process dates back to the 1950s, when Labour maverick George Wigg filibustered a debate on the renewal of the Armed Forces, to force the then Conservative government to reform the system.
The result was the current combination of an Act of Parliament passed every five years, under which a renewal order had to be passed annually.
More to come.

Friday, February 5, 2021

Off-base and on-base

Remember the case of the airman who was to be tried by court-martial for an off-base vehicular homicide? He just got 5 years and a bad-conduct discharge, according to this report. One does wonder, Solorio notwithstanding, why this off-base case wasn't tried "downtown." And what is your reaction to this case: a soldier charged with murdering his estranged wife (a vet, now a civilian) at Schofield Barracks in Honolulu? Sure, it's constitutional, but why isn't the case being handled in a civilian court? What urgent military interest is served by trying it in a court-martial instead of a civilian court with the full panoply of constitutional protections? Discuss among yourselves.

"Are we there yet?"

John M. Donnelly writes in Roll Call of possible action on a longstanding military justice reform proposal: "Lawmakers near big response to 'rape epidemic.'" Excerpt:
Members of the Senate Armed Services Committee are increasingly receptive to a long-standing proposal by New York Democrat Kirsten Gillibrand, chairwoman of the Armed Services Personnel Subcommittee, to move responsibility for prosecuting sexual assault, and perhaps other major crimes, from military commanders to independent prosecutors.
Several committee members this week hinted that they would back Gillibrand, in some cases reversing earlier positions. And, in so doing, they rebuffed abiding Pentagon resistance to the proposal.

Thursday, February 4, 2021

SANDF legal division in turmoil

The Mail & Guardian reports here on the plethora of internal issues currently roiling the legal division of the South African National Defence Force. Several issues have wound up in the civilian courts. The story is behind a paywall, but you can listen to the audio for free.

Wednesday, February 3, 2021

A bold proposal--DOA?

Together, the 2013 and 2016 changes to the UCMJ created new barriers to obtaining relief for military servicemembers who were harmed by legal errors in their prosecutions. The proposed revision to the UCMJ facilitates the fundamental goal of the military justice system: to provide efficient and effective procedures while promoting justice and maintaining good order and discipline. Without such a reform, servicemembers will continue to face a system that provides them fewer due process rights than civilian defendants yet prevents them from remedying the inevitable violations that result. Until the military justice system eliminates legal errors (a fanciful proposition) or becomes fully civilianized (a result that may not be desirable), convening authorities must have the power to review courts-martial for legal errors and provide proper remedies. [Footnote omitted.]
From Restoring the Power of the Convening Authority to Adjust Sentences by Jacob R. Weaver in the Michigan Law Review

Tuesday, February 2, 2021

Lawyering and military commissions

The al-Nashiri military commission saga continues in federal court in Massachusetts

Stephen Gill is a civilian lawyer and resident of Massachusetts. In 2015 he served as a Navy JAG and legal advisor for the al-Nashiri military commission. He reported to his superiors that some employees were violating a disqualification order issued by Judge Vance Spath ordering them to not work on the case. 

In 2016, al-Nashiri's defense raised these issues and brought Gill (then a civilian) to testify about them. Judge Spath informed Gill that he would need to return the next month to continue his testimony. 

The next month, Gill (still a civilian in Massachusetts) received a subpoena to travel to Virginia to testify in four days. Gill mailed a written application for relief to quash the subpoena, did not receive a response, and did not travel to Virginia as ordered. 

The next day, Gill alleges that 15 deputy marshalls in riot gear and five uniformed police officers in his hometown of Mansfield "stormed" his home with "assault rifles and hand guns drawn and pointed at Mr. Gill." Gill's home was searched, he was shackled, his wallet was taken, and he was forcibly flown to Alexandria, Virginia to testify. 
While detained, a federal public defender attempted to reach Gill. “I understand that you have been detained by the United States military, that you are present in the Eastern District of Virginia, and that you are a civilian citizen of this country,” said the letter, which Gill got only after he finished his testimony and was released from federal custody. Judge Spath did not permit Gill to speak with the lawyer before testifying. 
“In particular, a substantial question may exist whether the U.S. military possesses any authority under our Constitution to detain you outside of ordinary civilian judicial process in time of peace.”
Last week, a Massachusetts federal district court dismissed several of Gill's claims under the Federal Tort Claims Act (FTCA) but allowed Gill's FTCA claims for Trespass and Intentional Infliction of Emotional Distress to continue.
The opinion notes that, "This Court now notes its own hesitancy to rule on the distinctions between our civilian and military court systems but, at the same time, is cognizant of a founding principle of our Republic that military authority has always been deemed subservient to civil authority." 
The case information is Gill v. United States, 19-cv-12441-NMG, in the U.S. District Court of Massachusetts (Gorton, J.). 

A Miami Herald article describing the incident is here