International Military Justice Forum

On November 18-19, 2021, an exciting International Military Justice Forum will be held in Paris. The first day's session will be at the Army Museum (Invalides), and second day's at the Court of Cassation. The event program can be found here. The forum is sponsored by the Research Center of the French Military Academy, St. Cyr Coëtquidan. Congratulations to the organizers and sponsors.

Department of Serendipity

Serendipitous finds are terrifying because they make you wonder what else you've missed and how close you came to missing what you have stumbled upon. As today's case in point, consider this 2009 advisory opinion from the Committee on Codes of Conduct of the Judicial Conference of the United States:

No. 76: Service of State Employees as Part-Time United States Magistrate Judges

This opinion considers the propriety of appointing state or local public defenders or prosecutors as part-time United States Magistrate Judges.

The Committee advises that it would be inappropriate to appoint as part-time United States Magistrate Judges persons who are simultaneously serving as state or local public defenders or prosecutors. Likewise, it would be inappropriate for a part-time United States Magistrate Judge to serve as a state or local public defender or prosecutor.

The Judicial Conference has adopted Conflict-of-Interest Rules for Part-time Magistrate Judges. See Guide to Judiciary Policy, Vol. 2C, § 1110. Rule 3 provides that a part-time magistrate judge may appear as counsel in criminal actions in a state court. That provision relates to appearances as private counsel for the defendant and is permissible so long as it does not interfere with the performance of duty as a part-time magistrate judge.

Appearances in court of a part-time magistrate judge as a representative of the state or local government, whether as prosecutor or public defender, implicates two Canons of the Code of Conduct for United States Judges: Canon 1, that a judge should uphold the independence of the judiciary, and Canon 2, that a judge should avoid impropriety and the appearance of impropriety. Dual employment of the same person in the federal and in state or local judicial systems would be in conflict with the intent of these canons.

The military justice system is not included in the Judicial Conference of the United States, so the Committee's opinion -- one of many -- is not directly binding on military trial and appellate judges. Still, one must assume that it would be something those responsible for the administration of military justice (the TJAGs, the Joint Service Committee, the Chief Judges of the CCAs, the Chief Trial Judges, and less directly, the CAAF Judges) would heed unless there was a compelling basis for military justice exceptionalism on the question presented. Is there? After all, the services' judicial conduct rules closely echo the Code of Conduct for United States Judges.

Given Advisory Opinion 76, should Reserve Component (RC) judge advocates who are state prosecutors or public defenders be assigned as general or special court-martial military judges, CCA judges, or military magistrates? What about RC judge advocates who are Assistant U.S. Attorneys, Main Justice attorneys, or federal defenders?

International Society of Military Sciences -- Symposium 11 to 14 October 2021

Royal Military College of Canada (RMC) will be hosting a Symposium for the International Society of Military Sciences from 11 to 14 October 2021.  More information is available via this link.  The theme of this year's conference is 'Resilience, Cohesion, Disruption'.

Working Group 5 - Military Law and Ethics, may be of interest to the Global Military Justice Reform community.  In particular, there will be a Round Table discussion on Military Justice Reform on Wednesday, 13 October 2021, from 1000 to 1130 hrs EST.  There are also two sessions for the Military Law and Ethics Working Group: Tuesday 12 October 2021, 1500 to 1630 hrs EST and 1800 to 1930 hrs EST.

As a means of encouraging attendance for this Round Table Discussion, Dr. David Last, from RMC, the Program Chair and Secretary for the International Society of Military Sciences (ISMS), has indicated that they will waive the $75.00 conference fee for those who wish to attend the Round Table discussion on Military Justice Reform.  Interested persons can contact Rory Fowler (rory@roryfowlerlaw.com) prior to 8 October 2021, and provide their name and contact information, which will be forwarded to organizers.

Is criticism of others in the military a violation of discipline or does characterizing it as an offense amount to censorship?

Is criticism of one's superiors, inferiors or colleagues a serious offense against discipline in the Armed Forces?  The Colombian Constitutional Court thinks this is censorship and violation of a military official's freedom of expression.

In a 6 to 2 decision on 24 September 2021, the Colombian Constitutional Court, struck down a provision of the Code of Military Discipline that considered such criticism a "serious offense."  In declaring the provision unconstitutional, the plenary of the Court pointed out that discipline is an essential condition for the existence of the Armed Forces and it is legitimate to characterize certain acts as offenses but within the limits of the Constitution.

Such limits include the principles of legality and precision (in characterizing the offense) which are derived from the fundamental guarantee of due process.  This means that the behavior that comprises the disciplinary offense must be directed at censuring the public servant's failure to carry out his functions, because in no other way could the offense be considered substantively related to the conduct.

The plenary of the Court concluded that in this matter due process was violated because the concepts employed in the Military Discipline Code were ambiguous and vague and did not precisely identify the conduct deemed offensive, which broke the connection between the offense and the public servant's function which it was intended to protect.

The petitioner had argued that to punish all criticism would violate freedom of expression, conscience and information.  Criticism of things that are done wrong leads to improvement in the best of cases and this is cut off when all criticism is prohibited.

He's in the brig. Now what?

CAAFlog reports here on a Lieutenant Colonel of Marines in pretrial confinement. Note the comments. Watch this space.

A focused Military Law Review edition

Vol 229(2) from 2021 is focused on Nuremberg.

Fred L. Borch III

 

Opening Remarks for the Seventy-fifth Anniversary of the International Military Tribunal at Nuremberg

Colonel Sean T. McGarry

 

The Nuremberg Military Tribunals: A Short History

Fred L. Borch III

 

German Justice on Trial: The Justice Case

William F. Meinecke Jr.

 

Individual Criminal Responsibility for War Crimes

Geoffrey S. Corn

 

“Smoothing Out” the IMT Judgment: The Legal Legacy of the Twelve Subsequent Military Tribunals

Gary D. Solis

 

Guidelines on Investigating Violations of International Humanitarian Law and Practical Mechanisms for Accountability—Today and Beyond

Andrea Joy Harrison

 

Nuremburg and the Role(s) of Accountability in the Law of Armed Conflict

Thomas B. Nachbar

 

The Significance of the Nuremberg International Military Tribunals on the Practice of Military Law

Lieutenant General Charles N. Pede

An interesting twist

A flight lieutenant training at the Indian Air Force College in Coimbatore, Red Hills, was accused of raping a fellow officer. Amitesh Harmukh has sought to prevent a police investigation or a regular trial by a criminal court in the case, and instead wants the case brought before a military Court Martial. While the Coimbatore police have sought time to file a counter affidavit in a district court, is a Court Martial going to help the survivor? Will it bring speedy justice in the case? Or will the structures involved in the system affect a just trial for the survivor?

So reports, The NEWS Minute, Sept. 28, 2021.

Town Hall 20: A View From the Bench (A Conversation With Military Judges), Monday, Oct. 4, 2:00 p.m. (East Coast US)

Town Hall 20: A View From the Bench (A Conversation with Military Judges)

Monday, October 4⋅2:00 – 3:00pm -- please join us for this special event -- and invite friends who may be interested.

Join Zoom Meeting

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US Marines allow Sikh to wear a turban, sometimes

The New York Times this morning covered the story of First Lt. Sukhbir Toor, 26, the first Marine permitted to wear a turban with his uniform --sometimes.  Sikh troops have been permitted to wear turbans in uniform in the U.K., Australia and Canada  and in other branches of the U.S. military, but it is a first in the 246-year history of the U.S. Marines.  Nearly 100 Sikhs serve in the Army and Air Force wearing full beards and turbans.

 His case demonstrates a conflict in fundamental values: the tradition of discipline and uniformity and the constitutional liberty of freedom to manifest one's religion.  The Marine Corps has made the allowance only to a point.  Lt. Toor can wear a turban in daily dress at normal duty stations, but he cannot do so while deployed to a conflict zone, or when in dress uniform at a ceremonial event, where the public would see it.

  Lt. Toor grew up in the U.S. as a son of Indian immigrants and in the wake of 9/11.  He knew that many Americans associated Sikhs with dangerous religious fanatics and by joining the military he wanted to change that.  He shaved daily and wore a Marine Corps cap without complaint until he was selected for promotion to captain and then he made his formal request for a religious accommodation.  It was decided that he would be allowed to wear a beard and turban except when deployed serving in a combat unit or performing ceremonial duties in dress uniform, which was effectively a denial since he is a combat arms officer.  After he appealed the decision, the Marine Corps retreated somewhat on ordinary duty but not on the ceremonial duties and argued that the mere sight of a deviation from uniformity inherently hinders mission accomplishment.  He has appealed the restrictive decision and has said he will sue the Marine Corps if he loses his appeal.

Bookshelf Notes

U.S. Army JAG Corps Lieutenant Colonel (ret) Brad Huestis has written a novel -- Ahab: A Hockey Story. You can read about it here in Stars and Stripes. Congratulations, Brad!

COVID-19 and military justice (U.S.)

The U.S. Court of Appeals for the Armed Forces has released a new policy concerning civilian visitors:

Civilian visitors to the Courthouse are required to fill out and sign the Certification of Vaccination -- see link below. If a visitor declines to respond or is not fully vaccinated, that visitor must comply with the following safety protocols while inside the Courthouse:

(1) wear a mask regardless of the level of community transmission,

(2) physically distance, and

(3) provide proof of having received a negative COVID-19 test from within the previous 3 days.

Certification of Vaccination

DoD moves to attack sexual assault

A DoD press release lays out a roadmap for dealing with military sexual assaults. See Terri Moon Cronk, Hicks Outlines Strategy to Thwart Sexual Assault in Military. DoD News, September 22, 2021. [Link to SecDef memorandum.] The roadmap lays out 

foundational investments to support sexual assault accountability, prevention programs, healthy command climates and quality victim care. 
. . . 
​"[Tier 1] consists of the most important elements in preventing sexual assault and sexual harassment and holding offenders accountable," Hicks said. "The preponderance of initiatives and resources are focused in our first tier. For instance, it contains three of our highest-priority recommendations, including the establishment of the offices of special-victim prosecutors, the creation of a full-time and specialized prevention workforce, and the implementation of full-time sexual assault response coordinators and sexual assault prevention and response victim advocate positions."

A cross-post with CAAFlog.

Note: the 2027 is not a typo. Also, ""Full implementation of the first tier must be completed by 2027; implementation of the full slate must be accomplished by 2030, according to the plan."

Kicking the torture can down the road

The New York Times's Carol Rosenberg writes here about Monday's ruling by the U.S. Court of Military Commission Review dismissing a mandamus or prohibition petition that raised the question whether torture-derived evidence could ever be used in a military commission proceeding. The court ruled that the issue -- one that looms over other cases as well -- was not yet ripe for adjudication. At some point, this issue is going to have to be faced.

One wonders whether, in the year 2021, it serves the public interest to continue kicking this can down the road.

Deserters in South Korea

If you're looking for a military justice themed show to stream, D.P., short for Deserter Patrol, trails military police in South Korea looking for AWOL soldiers. The Netflix series has landed amidst a debate in South Korea over its conscription laws, which requires all men to serve up to 21 months. The debate bears faint echoes to U.S. reforms, in the sense that a few claim the South Korean military tolerates a culture of abuse, some if it sexual. The situations are certainly not 100% parallel, as the South Korean conscription law is justified by a belligerent sitting on the other side of the 38th. According to the article linked above, the conscription debate also weighs the consequences of compulsory service for economically disadvantaged men who must give up work and education and fall further behind. 

I'm curious to see if D.P. addresses economic inequality in the show, as I've been interested in discussions about what drives people to volunteer for the United States military. I would have assumed there was some economic benefit for those at the bottom to compulsory service, as it would serve as an equalizer during that time of service. Some quick googling just now came up  empty, but I've also assumed the military, at least the British and American, has historically been a way for some to move up in social caste. At the very least, I firmly believe that if you are a patriotic sort without a safety net of your own, the only avenue to an American socialist paradise of free health care and free college is the United States military. In any case, a new show to check out.   

He's not going quietly

U.S. Marine Corps LtCol Stuart Scheller's latest video can be found here. He's putting a general on report and filing an Inspector General complaint, apparently has counsel, and will be raising money for his family and a defense fund. He says there is (was?) a deal under discussion for him to receive office hours (Marine-speak for non-judicial punishment) and an administrative discharge. YouTube currently shows 9.1K thumbs-ups and 103 thumbs-downs for the video.

Accountability for war crimes in U.S. courts

Newsweek reports that,

A [U.S] federal judge in Philadelphia ruled that a former Liberian military commander, Moses W. Thomas, who oversaw the massacre of hundreds of innocent civilians at a church during the country's civil war in 1990 can be held to account under U.S. law for the extrajudicial killings and torture.

 

The lawsuit said Thomas was in command as soldiers fired into the packed church from the front door and through windows, targeting those trying to escape.

Thomas was later promoted to head the country's defense intelligence service and emigrated to the United States in 2000.After the war, Thomas emigrated to the United States, worked at a restaurant and lived in Sharon Hill, Pennsylvania, a Philadelphia suburb. He went back to Liberia two years ago. His lawyer said Friday he now lives in the capital of Monrovia.

What is the real source of outrage about General Vance (retired)?

Recently, there have been a series of reports in the Canadian news media regarding General Jonathan Vance (retired) and both his 'first appearance' in the Ontario Court of Justice to respond to a charge of 'Obstruct Justice' contrary to subsection 139(2) of the Criminal Code, and to the revelation that he will not be charged under the Code of Service Discipline.

Some of that reporting has been - shall we say - sensationalist in nature.

Some people have also bemoaned the state of the Code of Service Discipline - "Look", they cry, "it cannot even be used to prosecute the most senior member!"

But, if the Code of Service Discipline is intended to be used by the leadership of the Canadian Forces to maintain the discipline, efficiency, and morale of the armed forces, ought we expect that it would be used to prosecute the officers at the apex of the armed forces?  If the Chief of the Defence Staff - a senior and experienced officer with significant public responsibilities - demonstrates bad judgement or unethical behaviour, ought our foremost concern be whether a mechanism can 're-instill the habit of obedience'?  Or is the real issue whether that officer should be CDS?

The nature of recent reporting on this issue, and potential answers to those questions are offered here:  What is the real source of outrage about General Vance (retired)?

Canadian military justice system in trouble again

Canadian news media have reason to again turn their attentions to the Canadian military justice system. Global Television's Mercedes Stephenson, Marc-André Cossette and Amanda Connolly addressed "whether retired Gen[eral] Jonathan Vance broke code of service rules with an allegedly inappropriate relationship has officially ended with no charges, despite him currently facing a separate criminal charge of obstruction of justice in connection with the probe."

The Global news team asked the Defence Department "why the probe into any possible military service violations ended on Aug. 6 with no charges," and a military police spokesperson spoke from the report of the Third Independent Review of the military justice system by former Supreme Court justice Morris Fish. Justice Fish warned it was "legally impossible" under the current rules to try someone of Vance's rank in the military system.

Retired Chief Military Judge Colonel Mario Dutil was alleged to have had an inappropriate relationship and was charged. What followed was a series of circumstances that made the Canadian military's Judge Advocate General organization appear to be hopelessly chaotic and incompetent as they unsuccessfully tried to subject the Colonel to a court martial. He was charged on 25 January 2018; in February 2018, Lieutenant-Colonel Mark Poland was appointed Special Prosecutor, and four months later, in June 2018, Lt-Col Poland advanced additional charges against Dutil. The Deputy Chief Military Judge, Lieutenant-Colonel Louis Vincent d'Auteuil recused himself as the presiding judge in the court martial and refused to assign the matter to another judge.

Now-retired Colonel Bruce MacGregor, formerly Director of Military Prosecution, applied to the Federal Court of Canada for a judicial review of the Deputy Chief Military Judge's refusal to reassign the court martial to another military judge, but the Federal Court determined that Lt-Col d'Auteuil's position was reasonable and declined to accede to the application of the Director of Military Prosecution.

The case collapsed.

Colonel MacGregor later said "All members of the Canadian Armed Forces, regardless of rank or appointment, are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law."  

But they were moved forward unsuccessfully.

On 21 July 2011, Lt-Col d'Auteuil presided over previous court martial in which Brigadier-General J.B.D. Ménard was charged with an offence under section 129 of the National Defence Act, conduct to the prejudice of good order and discipline, for an inappropriate relationship while the Canadian commander in Afghanistan. He was fined $7,000 and reduced in rank to colonel.

Launching a court martial against Brig-Gen Ménard and the subsequent inability to address the conduct of two other senior officers does not conform to Colonel MacGregor's statement that "All members of the Canadian Armed Forces, regardless of rank or appointment, are held to the same, highest standard of conduct." 

This suggests that it may be time to quickly relegate the Canadian Forces National Investigation Service, Military Police's investigatory arm, and the Canadian military justice system to the dustbin of history and take a different approach to military justice. Those in charge are simply unable to meet their taxpayer-financed responsibilities for which they are staffed, funded and equipped to manage.

What if the accused is a top general?

Global Military Justice Reform contributor Michel Drapeau writes here about a current challenge to the Canadian Military Justice system. Excerpt:

Briefly stated, as currently constituted, the military justice system simply cannot try an officer with the rank of general. Why? A general court martial is composed of a military judge and a panel (jury) of five military members. Pointedly, the senior member of the panel must be an officer of or above the rank of the accused. In such an instance, the only possible candidate to preside a potential general court martial of [Gen. Jonathan] Vance would be Gen. Wayne Eyre.

In my considered opinion, the latter’s previous subordinate relationship to Vance, as well as his current appointment as acting chief of the defence staff, would likely disqualify him from serving as an independent and fair trier of facts to decide at trial on the guilt or innocence of Vance.

Moreover, because all military judges hold a rank that is subordinate to that of general, all military judges would face the same conundrum as Eyre. Simply put, it is most unlikely that a general court martial could be convened to try Vance.