Saturday, April 17, 2021
Thursday, April 15, 2021
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.
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.
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
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.
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
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.
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.
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.
Monday, April 12, 2021
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.
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. 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.
 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.
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.
Friday, April 9, 2021
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
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
Meeting ID: 858 6371 3314
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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
Thursday, April 1, 2021
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.