Chief Military Judge - Canadian Forces

One has to start to wonder why Canada's Governor in Council continues to refuse to designate a new Chief Military Judge.

The last Chief Military Judge, Colonel Mario Dutil, retired 20 March 2020.

As of today, 30 November 2021, the Canadian Forces has been without Chief Military Judge for 620 days - 1 year, 8 months, and 10 days.

Sure, the Canadian Forces have an Acting Chief Military Judge - by virtue of section 165.29 of the National Defence Act, the Deputy Chief Military Judge, Lieutenant-Colonel L-V d'Auteuil is the Acting Chief Military Judge.  However, the prolonged vacancy of this position is beginning to undermine the military justice system. 

This has been the longest standing current vacancy of any federally-appointed or designated Chief Justice or Chief Judge in Canada.  A vacancy of a few weeks, or even a few months, could be considered reasonable.  However, a vacancy in excess of 20 months begins to look like the Governor in Council is punishing Military Judges for judgments that they have rendered over the course of the past two years.

Designating a Chief Military Judge under section 165.24 of the National Defence Act is not an overly complicated matter.  It takes an Order in Council (OiC) by the Governor in Council.  Those aren't overly difficult to prepare.  Last July, the Governor in Council issued an OiC reappointing the Judge Advocate General of the Canadian Forces.  Last week, the Governor in Council issued two OiC in order to appoint General Wayne Eyre as Chief of the Defence Staff.

The decision cannot be that difficult.  There are four Regular Force Military Judges.  Conceivably, each would be eligible to be designated the Chief Military Judge (although it is possible that not all of them are interested in that position).  The Governor in Council has had plenty of opportunity to designate a new Chief Military Judge.  If the Governor in Council is satisfied with the performance of Lieutenant-Colonel d'Auteuil as Acting Chief Military Judge, it would be a simple matter to issue an OiC designating him the Chief Military Judge.  Alternatively, if the Governor in Council would prefer to have a different Military Judge perform that role, an OiC could be issued designating a different Chief Military Judge.  Arguably, the more that the Governor in Council delays, the more there is a compelling argument that this inordinate delay represents improper influence of the judiciary - through inaction - by the executive. 

After all, it was clearly untenable for the Governor in Council to have an Acting Chief of the Defence Staff exercising control and administration of the Canadian Forces under section 18 of the National Defence Act.  Why, then, is it acceptable for the military justice system to have only an Acting Chief Military Judge for well over a year-and-a-half?

Members' letter to HASC/SASC leadership

Scores of Senators and Members of Congress have today sent this letter to the chairs and ranking members of the House and Senate Armed Services Committees concerning proposed reforms to the U.S. military justice system.

Canadian military's abject failure to assist civilian victims of sexual assault

November 30, 2021. Canada's national newspaper THE GLOBE AND MAIL publishes an exposé titled " Military Failure to enact the Victims' Declaration of Rights leaving sexual assault and other victims without support." by Marieke Walsh.

 "More than two years, and two elections, after the Liberal government passed a bill guaranteeing the rights of victims with cases in the military justice system, the law has not been fully enacted – leaving people without basic guarantees and supports during a complex and traumatic process.

Although the law was passed in 2019, the Defence Department and the Canadian Armed Forces have not yet completed the regulations that will bring it into force.

Bill C-77 includes provisions that would guarantee victims in the military justice system more of the basic rights that people in the civilian courts have had for years – including the right to information about the case, participation in the process and restitution.

In her 2019-20 annual report, Judge Advocate General Geneviève Bernatchez, who is a rear-admiral, said it would take “several years” to fully implement Bill C-77 because of the need for consultations and to develop policy. (The Judge Advocate General’s office oversees the administration of the military justice system.)

The lengthy delay is “an affront to the Parliamentary process and the democratic process” and an “insult to these victims,” Mr. Drapeau said in an interview with The Globe. The Liberal government introduced the bill in the House of Commons in 2017. It replaced a bill that died on the order paper before the 2015 election. The 2017 bill contained little that was different from its predecessor to explain the long delay in implementing it, he said.

The snail’s pace is emblematic of how the Canadian Armed Forces have dealt with other aspects of sexual misconduct, said Megan MacKenzie, a professor at Simon Fraser University who researches gender and the military. Prof. MacKenzie said in the case of Bill C-77 and a 2015 report on sexual misconduct and harassment in the military, there are “clear calls to action, and then just years go by where no one’s really sure if anything is happening."

Rank has its privileges when facing courts-martial in Canada

by Major Tim Dunne (retired)

 This article appeared in the 29 November edition of the Halifax (Nova Scotia) Chronicle Herald

Why is Canada’s military justice system unable to court-martial the highest-ranking military officers while it seems to have no difficulty charging and trying their subordinates?

It’s a good question that deserves an answer, even though there are some within our military who feel that the Armed Forces should have to answer only to their own superiors, and not to the Canadian public.

There are four general (army and air force) and flag (navy) officer ranks in the Canadian Armed Forces:

• brigadier-general /commodore;
• major-general/rear-admiral;
•  lieutenant-general/vice-admiral;
• general/admiral. 

Canada’s National Defence Act contains the code of service discipline which, in turn, mandates the jurisdiction of both service tribunals, summary trials and courts martial, to try accused CAF members for alleged military and civil offences.

Minor infractions can be handled by the offender’s commanding officer or designated representative at a summary trial. More serious violations are heard by a court martial, the Canadian military’s version of a criminal trial.

The act mandates that officers in the rank of colonel and its naval equivalent, captain (navy) and above must be tried by court martial.

A military judge alone presides over a standing court martial, while a general court martial comprises a military judge with a panel of five Armed Forces members. The type of court martial largely depends on the nature of the charge(s) laid.

The National Defence Act section 167(1)(4) requires that if the defendant is a brigadier-general or above, the senior member of the panel must hold the same or a higher rank, and the remaining members of the panel must be colonels or navy captains, or above.

While there have been brief periods when there have been two “four-star” generals — the highest rank in the Canadian military — it’s customary to only have one.

On April 30, retired Supreme Court Justice Morris Fish tabled his Third Independent Review of the Canadian military justice system in which he observed that these regulations restrict “the pool of eligible members depending on the rank of the accused, make it legally impossible for the (Chief of the Defence Staff) CDS and practically impossible for any lieutenant-general or vice-admiral to be tried by general court martial. Should charges be laid against officers of these ranks, the military justice system may not be able to deliver justice.”

Justice Fish’s comment that “the military justice system may not be able to deliver justice” against the most senior officers of the Canadian Armed Forces is a chilling condemnation of that system.

This contrasts sharply with the comments of former director of military prosecutions and now retired Col. Bruce MacGregor of March 11, 2020, when charges against Chief Military Judge Col. Mario Dutil collapsed because no other military judge could preside over their superior officer’s court martial.

“All members of the Canadian Armed Forces, regardless of rank or appointment,” Col. MacGregor announced in a DND news release, “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. However, after conducting a detailed review of the Federal Court’s decision to dismiss my application for judicial review, and carefully considering all circumstances surrounding this case, I believe that it is no longer in the public interest to proceed with this trial.”

Nineteenth-century French writer Honoré de Balzac insightfully observed, “Laws are spider webs through which the big flies pass and the little ones get caught.”

Taiwan: Calls for a Code of Discipline

Taipei Times reports in this article that due to an incident where officers administered inappropriate punishments to a conscript, the Ministry of Defense is called to develop a standardized code of discipline.

Earlier this month the recruit, who was caught napping during physical training, had his shirt removed and icepacks were placed under his armpits and on his crotch. Nine officers, from the sergeant who imposed the punishment up to the battalion commander, are currently under investigation by the military police.

In response, politicians and researchers have called the Ministry of Defense to create a unified code of service discipline, notably to prevent such incidents from happening. It is believed that by providing codified guidelines, it would reduce the risk of having an officer or a non-commissioned officer imposing a disproportionate, degrading or unusual punishment.

Amongst the experts quoted by the Taipei Times is National Chengchi University international affairs professor Chen Wen-chia, who notably said that:

“Complete trust and flawless teamwork must exist for a military organization to function. […] Knowing how to strike a balance between discipline and trust is the test of good leadership.”

We could add to Prof. Wen-chia’s wise words that this balance is particularly essential to maintain in the armed forces of a democratic state, where the general public’s trust in military institutions is itself a strategic asset. This balance is all the more difficult to maintain when the state faces the constant risk of being drawn into a major armed conflict threatening its existence. As conscripts have not voluntarily joined the armed forces, would eventually go back to civilian life, and would eventually – negatively or positively - influence the general public’s support towards military institutions, this balance is even more challenging to maintain.

Another researcher, retired army major general Richard Hu, told the Taipei Times that “creating a separate military justice system is not necessary for maintaining discipline”. In support of his argument, he referred to the absence of military courts in Japan’s Self-Defense Forces and the fact that in France, military courts are convened only in exceptional circumstances.

MGen (ret’d) Hu indirectly evokes something often misunderstood by most observers: military justice does not equate to military discipline. The former is one of the tools to restore the latter, a broader concept. Maintaining discipline is the very essence of military organization, notably to ensure efficiency and morale, but it is also an obligation for commanders to prevent and, where necessary, punish violations of international humanitarian law.[1]

By the way, discipline is maintained in many ways. Yes, by imposing (or threatening) sanctions that dissuade offenders from reoffending and discourage others from doing the same. But what a military organization really wants is self-discipline: the kind that comes naturally from within, after individual and collective training, following the example set by leaders, and reacting to collective positive reinforcement from peers. So even when military authority or superiors are absent, the individual soldier would nevertheless, by a mixture of habit and reasoned will, intrinsically act in a proper military and professional way because it is the ‘right thing to do’.

If MGen (ret’d) Hu’s quote means that there is no obligation to have military courts to maintain discipline, he is right (although many would argue that simply transferring criminal jurisdiction from military to civilian courts is not a ‘silver bullet’ to avoid impunity as it seems to be). Yet, as commanders are required to exercise and instill “rigorous supervision of the armed forces and strict internal discipline […] required to ensure that military personnel obey orders when in danger and do not abuse their power”[2] a system is needed. It does not have to be a court or a judicial system. Nevertheless this system, whether administrative, disciplinary or penal summary proceedings, must be fair, meeting minimum standards. Among those are the requirements of legality, predictability and proportionality of punishments. Consider the following from the 2019 Yale Draft Principles for Military Summary Proceedings:

Principle 4

The State shall define by law which offences are subject to summary proceedings, the applicable penalties, and periods of limitation.

Principle 5

A commander may not impose any punishment that is cruel, unusual, inhuman, degrading, or disproportionate. Periods of detention should be of relatively limited duration, reflecting the fact that summary proceedings are designed for the adjudication of minor offences.

In summary, to prevent sanctions and punishments from being left entirely to the ‘whims and fancies’ of frontline officers, there’s a need for a military justice system. Not necessarily a court system, but still a fair one. Otherwise, in seeking to strike the right “balance between discipline and trust” as Prof. Wen-chia puts it, the latter will be harmed and ultimately, the former would be more difficult to maintain through soldiers’ inherent positive motivation.

The opinions expressed are those of the author alone.

---

[1] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 87.

[2] Céline RENAULT, “The impact of military disciplinary sanctions on compliance with international humanitarian law”, International Review of the Red Cross, vol. 90, no. 870, June 2008, 320.

In the House of Lords

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General [Edward] Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”

This amendment is designed to complete the journey towards justice.

Lord Thomas of Gresford, in the House of Lords debate on the Armed Forces Bill, Nov. 23, 2021, available here.

Survey of National Guard scandals

USA Today's Dennis Wagner reports here on scandals that have roiled the National Guard in numerous states in recent times. "Throughout the National Guard system, which consists of 54 independent state and territorial militias, soldiers and airmen have complained for decades about abuses that suggest a failure of culture and oversight."

Prime Minister Justin Trudeau appoints General Wayne Eyre as Chief of the Defence Staff

 Ottawa, November 25, 2021

General Wayne Eyre is appointed as Chief of the Defence Staff by the Prime Minister on November 25, 2021. Prior to his appointment, General Eyre was the Commander of the Canadian Army

General Eyre attended the Royal Roads Military College  in Victoria, British Columbia, and the Royal Military College of Canada (RMCC), in Kingston, Ontario. Upon commissioning in 1988, he joined 2nd Battalion, Princess Patricia’s Canadian Light Infantry (PPCLI), and has spent the majority of his career in command or deputy command positions, including commanding 3rd Battalion PPCLI, 2 Canadian Mechanized Brigade Group, 3rd Canadian Division and Joint Task Force West, Deputy Commanding General – Operations for XVIII (U.S.) Airborne Corps, Deputy Commander Military Personnel Command, Deputy Commander United Nations Command in Korea, and for a very short time, Commander of Military Personnel Command. He became the Commander of the Canadian Army on August 20, 2019, and was promoted to the rank of General on August 13, 2021.

Major Ian Fishback, rest in peace

Two articles in The New York Times about the sad, untimely death of former Army Major Ian Fishback are most highly recommended, here and here. A most tragic case -- and one that should be pondered.

Thanksgiving 2021

Reform in the Dominican Republic

 The reform of the Penal Code of the Dominican Republic was approved in the Senate today (Nov. 24, 2021) and will be sent to the Chamber of Deputies next week.  Two Congressmen (Jose Horacio Rodriguez of Alianza Pais and Juan Dionicio Rodriguez of the Frente Amplio) announced that they are opposed to the criminalization of abortion and that they plan to correct everything that has to do with interfamily violence and the provision regarding a military penal code.  Representatives of other political factions believe that the Penal Code will be approved quickly in the lower house in the same manner that it was approved in the Senate.

In 2019 the Constitutional Tribunal of the Dominican Republic issued a judgment (350/19 of 9  September 2019) stating that criminal military tribunals do not exist in the Dominican Republic. Last May, Carlos Luciano Diaz Morfa, the Minister of Defense, proposed that members of the Armed Forces could only be tried in military tribunals and not by the ordinary justice system.  Currently dozens of members of the Armed Forces are being tried for administrative corruption and the discussion has been whether a military court should be included in the Penal Code. But the Constitutional Tribunal has already decided the issue.

Call for papers

The American Society of International Law has issued a CALL FOR PAPERS FOR THE 2022 LIEBER SOCIETY RICHARD R. BAXTER MILITARY WRITING PRIZE.

Information at this link.

Since 2007, the Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, has annually recognized a paper that significantly enhances the understanding and implementation of the law of war (also known as international humanitarian law, IHL). The Richard R. Baxter Military Prize is awarded for exceptional writing in English by an active member of the regular or reserve armed forces, civilian employees of an armed force/ Ministry of Defense (or Department of Defense for the United States), or military service veterans, regardless of nationality. 

As goes [Canada][UK] reform?

House of Lords have defeated the Boris Johnson government in backing a move aimed at ensuring troops accused of the most serious offences are normally tried in a civilian court. The House of Lords supported the presumption against such cases being dealt with by the military justice system by 210 votes to 190, majority 20.

The change in the upper chamber to the Armed Forces Bill means service personnel alleged to have committed in the UK the most severe crimes, such as murder, rape and child abuse, would be dealt with in the civilian courts rather than a court martial, unless authorized by the Attorney General on grounds of complexity.

So reports Merco Press. Armed Forces Net has similar reporting.

Goatgate

From this article by The New York Times's ace military crime reporter Dave Philipps:

The superintendents of the two academies — Lt. Gen. Darryl Williams and Vice Adm. Sean Buck — said in the joint statement on Monday night that stealing animals was off limits and that they were investigating the raid.

They said they were “disappointed by the trust that was broken recently between our brothers and sisters in arms,” and added, “These actions do not reflect either academy’s core values of dignity and respect.”

Town Hall 22, Canadian Military Justice Developments

Please join us for Global Military Justice Reform's Town Hall 22, 0900 EST, Monday, Dec. 6, 2021. Contributor Rory Fowler will moderate what is certain to be a fascinating and timely discussion of Canadian Military Justice Developments. There is a great deal to discuss, as noted here. Feel free to invite friends and colleagues who are interested in military justice.

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Bucking and stalling?

BILL C-77 PASSED INTO LAW IN JUNE 2010 HAS YET TO BE PUT INTO FORCE. WHY? 

On May 10, 2018, Bill C-77  An Act to amend the National Defence Act and to make related and consequential amendments to other Acts  was introduced in the House of Commons by the Minister of National Defence. Following second reading on October 15, 2018, the bill was referred to the House of Commons Standing Committee on National Defence, which reported the bill back to the House of Commons. The bill received third reading in the House of Commons on  February28, 2019. It passed the Senate without amendment and received Royal Assent on June 21, 2019. became part of the  as S.C. 2019, c.15.

 PURPOSE

 The purpose of Bill C-77 was two-fold:

A.    Repealed the Summary Trials procedure replacing with a non-judicial Summary Hearings;

B.    Added a new Division to the National Defence Act entitled "Declaration of Victims Rights" that specifies that victims of service officers have a right to information, protection, participation and restitution in respect to service offences. 

JAG OFFICERS HAVE ACTUAL KNOWLEDGE AFTER ATTENDING EACH OF THE 11 PARLIAMENTARY COMMITTEES MEETINGS REVIEWING BILL C--77 IN 2018 and 2019.

 House of Commons. The Standing Committee on National Defence (NDDN) met on seven separate occasions to consider Bill C-77. It heard  22 witnesses including the following JAG officers: Commodore Geneviève Bernatchez (JAG) , Colonel Stephen Strickey (3 times); LCol Genevieve Lortie (4 times) and Major Karl Lacharité. 

Senate of Canada. The Standing Committee on National Security and Defence considered Bill C-77 at four  separate meetings during which it heard from the following JAG officers: Commodore Geneviève Bertnatchez (JAG), Colonel Stephen Strickey, Lieutenant-Colonel Genevieve Lortie). The Bill 

BILL C-77 STILL AWAITS BEING PUT INTO FORCE

Despite having been passed into law close to 2½ years ago after a year-long parliamentary review process during which several key JAG officers participated, the Office of the JAG has been unable yet to put the Bill C-77 into force denying victims of crimes the protection enacted into law 30 months ago.  This extraordinary long and unacceptable delay also means that CAF members are still subject to a statutory summary trials procedure which has been repealed by Parliament in June 2019.

Canada is a parliamentary democracy and its system of government holds that the legislative body may change or repeal any previous legislation. In the case of Bill C-77, the supremacy of Parliament is being unduly tested.

Limiting civilian battlefield casualties?

World's military officers gather in Abu Dhabi to discuss ways to protect civilians, reports The National (UAE).

The statistics speak for themselves: there are at least 40 active battlefields with 600 non-state armed groups operating around the world.

Throw into the mix 100 representatives from about 130 state militaries and you have a complex web of conflict tracked by the International Committee of the Red Cross (ICRC) over the past few years.

This is compounded by state-sponsored proxies, new technology, shifting alliances, political indecisiveness and a zero-sum game, resulting in familiar news stories about people left with nothing but the rubble of their homes.

“Across the globe there are terrible examples of where civilians are targeted, maimed and killed and livelihoods destroyed,” Clare Dalton, the ICRC head of mission to the UAE, said on Monday.

“We have to be able to look at why this is happening.”

Real and substantive reforms are coming to town

On November 22, 2021,  the Canadian Broadcasting Corporation reported that the Liberal government has set up an interdepartmental working group (Department of National Defence and the Department of Justice Canada) to study whether the civilian justice system should take over the duties of the office of the military prosecution and the office of defence counsel which are both part of the Office of the Judge Advocate General (JAG). Such a move would go above and beyond the earlier ministerial directive to removing all sexual assault complaints from the military penal justice system. This would be akin to what has been taking place in Austria, Belgium, the Czech Republic, France, Germany, the Netherlands, and Lithuania who has more or less repealed military jurisdiction over crimes in peacetime and return such jurisdiction to ordinary courts of law.  

All in all a welcomed and long-awaited move!

New president of Military Court of Appeal in Tel Aviv

The new president of Israel's Military Court of Appeal is Orli Markman, who is the country's third woman to be promoted to Major General. Also named to the court is Col. Maya Goldschmidt. The Military Advocate General is Major General Yifat Tomer Yerushalmi. The Jerusalem Post has the story here.

Town Hall - 6 December 2021: Canadian Military Justice Developments

In two weeks, the Global Military Justice Reform blog monthly Town Hall will focus on recent developments (and proposed changes) to the Canadian Military Justice system.

In the wake of Canada’s recent federal election, a new Minister of National Defence, Anita Anand, was appointed 26 October 2021.  Shortly after her appointment, Minister Anand announced that members of the Canadian Forces, alleged to have committed criminal offences of a sexual nature, will now be investigated by civil law enforcement and prosecuted by civilian prosecutors before civil courts of criminal jurisdiction.  However, non-criminal sexual misconduct, and criminal offences of a non-sexual nature will continue to be investigated by military authorities (including the Military Police) and prosecuted within the Code of Service Discipline.  This led to a joint statement by the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP), indicating their support for the initiative.  Arguably, that joint statement – which appears to try to reassure Canadians of the professionalism of the Military Police and the Canadian Military Prosecution Service while appearing to accept the Minister’s lack of confidence in the same – raises as many questions as it answers.  Nor have Canadians heard from the Judge Advocate General, Rear Admiral Geneviève Bernatchez, on any of these issues over the past 6 months.

More recently, Minister Anand has indicated that, in preparation for an anticipated report by former Supreme Court of Canada Justice Louise Arbour, she will also examine the potential ‘civilianization’ of the offices of Director of Military Prosecutions and Director Defence Counsel Services.  It is likely that the Minister will make more similar announcements as her tenure progresses.

The new Minister of National Defence appears intent on demonstrating that she will be the ‘new broom’ that sweeps clean the military justice system in Canada.  But what does this really mean for the Canadian Forces?  What is the potential impact of these changes?  How much of what has been said amounts to political posturing rather than meaningful change or improvement?  What are the principles upon which such changes might be based?

Join us at 0900 hrs ET on Monday, 6 December 2021, for a discussion of these issues.

For those who may be interested in recent commentary on some of these issues, here are some recent blog posts by Global Military Justice Reform contributor, Rory Fowler:

Minister of National Defence Announcement – Sexual Misconduct

Stand By for Apologies – But, let’s talk about transparency…

The MND’s New Policy and the Rule of Law

Labor unions sue for right to organize Connecticut National Guard

Four labor unions recently sued the Attorney General and the Department of Justice, arguing that federal law chills their speech and association rights, and those of Connecticut National Guard troops serving in a non-federal status. The suit alleges that federal prohibitions against U.S. military personnel forming labor unions do not apply to National Guard servicemembers when they are in a state status.  

As the lawsuit notes, "Section 976 of Title 10 of the U.S. Code makes it a felony for members of the armed forces—including members of the National Guard when activated to federal status—to join or attempt to form a labor organization. The same federal statute makes it a felony for unions such as Plaintiffs to support labor organizing in the armed forces, including by Guard members when activated to federal status."

So while U.S. military and federally mobilized National Guard personnel cannot form a labor union, the suit argues the plain language of the statute does not cover National Guard personnel while they are not activated to federal duty. The labor unions seek declaratory relief, arguing this federal statute should not infringe on their constitutional rights of speech and association, nor can it infringe on the Connecticut Governor's powers to supervise and control state guardsmen. 

According to the Stars and Stripes article, the Connecticut National Guard was not consulted about this lawsuit before it was filed.  

Tunisia, civilians at court-martial

He was jailed in July for a 2018 charge of defaming the army in a Facebook post and sentenced to two months in prison. Habib Bourguiba, leader after independence from French rule, established a military justice code that gave military courts the right to try civilians for crimes that included insulting the flag or the army. Efforts to reform the military justice code since the 2011 revolution have stalled.

So reports DevDiscourse, Nov. 21, 2021.

“Military courts are still under the undue control of the executive branch, as the president of the republic has exclusive control over the appointment of judges and prosecutors in these courts,” read a recent Amnesty report.

[C]ritics say the army has become a political tool since July, noting that troops secured parliament when the government was dismissed, drawing comparisons with Egypt's military coup in 2013. Tunisia's army enjoys a high level of popularity and has traditionally played an apolitical role in the nation's affairs. The president ordered the army to take charge of the nation's COVID-19 vaccination campaign, using their “image of strength and efficiency” to bolster his standing, political analyst Sharan Grewal said.

Brooking has this from 2019,

Tunisia’s newly-elected parliamentarians take their seats, a number of democratic reforms await their attention. Amnesty International has already highlighted five key areas, including the state of emergency, security force abuses, transitional justice, the constitutional court, and the death penalty. To this list we would humbly add a sixth: reforming, if not abolishing, the military courts.

Tunisia’s military courts continue to operate under the 1957 Code of Military Justice, which permits military trials of civilians for insulting the military or undermining its morale, in addition to national security related crimes such as treason and espionage. While the 2014 constitution stipulates that the military courts are only “competent to deal with military crimes,” a transitional article permits military trials of civilians until the code is amended in line with the constitution. Tunisia should move swiftly to do so to end such trials.

The Vaccine Mutiny of 2021

Today's Washington Post has this article by Alex Horton, focusing on the U.S. Marine Corps but also shedding light on vaccine resistance across the services. Can it be that it's too late for the service chiefs, SECDEF, and President to insist on compliance with a lawful order? See also Oklahoma National Guard et al.

Hardball or softball: which will it be, and when will we know?

Task & Purpose reviews the issues and stakes around the Oklahoma governor's politically-inspired vaccination mutiny here. Excerpt:

This is not the time for the Pentagon to equivocate on vaccines. The COVID-19 outbreak has now cost the lives of more than 764,000 Americans, including 75 service members. Of the troops who have died from the disease, 28% belonged to the National Guard, which only makes up 19% of the entire military, according to the Washington Post.

Book release/pre-orders: "March to Justice: Global Military Law Landmarks," edited by Navdeep Singh & Frank Rosenblatt

Franklin Rosenblatt and I are thrilled to announce that our book “March to Justice: Global Military Law Landmarks” is now available for discounted pre-orders.

It would be released next month, December 2021, and we shall keep the readers of this blog posted on further developments, including panel discussions around it.

The book, edited by both of us, is a unique work. An international release, it contains short essays and commentaries by jurists, judges and academics from around the world on milestone judicial decisions that changed the course of military law in different jurisdictions. It aims to provide information on the diverse course taken by military law, justice and reform in various nations, and generate lessons and learning from these experiences, besides triggering a comparative analysis.

The contents are articulated in simple non-technical language that is easy to assimilate even for a layperson. The book should appeal to the general reader as well as those interested in the military, law, politics, public policy, governance and human rights. The book contains contributions related to various nations, including the US, India, Canada, UK, The Netherlands, Colombia, China, Australia, Georgia, Israel, Pakistan, Ukraine, Sri Lanka, Brazil, Denmark, Nepal and Turkey.

The Editor of this blog, Eugene Fidell, has also authored a chapter, and so have many other well-known contributors here.

The pre-order links on Amazon:

US

India 

UK

Canada

Australia

Germany

France

NIMJ requests a court of inquiry

The National Institute of Military Justice has today asked Secretary of Defense Lloyd J. Austin III to convene a statutory Court of Inquiry to investigate the Baghuz, Syria, bombing. 

WWGWD*

“I did not initiate a civilian-military crisis just because I thought it was cool, right?”

Brig. Gen. Thomas Mancino, Adjutant General of Oklahoma, quoted here in The Washington Post

* What would George Washington do?

Tia Johnson nominated for CAAF vacancy

Col. (ret) M. Tia Johnson has been nominated by President Joe Biden to fill the vacancy on the U.S. Court of Appeals for the Armed Forces. The seat she will fill if confirmed was previously occupied by now-Senior Judge Scott W. Stucky, who was hanged the other day in the court's portrait gallery.

Congratulations to each.

One hopes the nomination proceeds quickly so the continuing indefensible flow of petition denials (which bar access to the Supreme Court) by only four judges during the months-long interregnum is stanched. Perhaps someone will also figure out a way to fix the statute. Rep. Louie Gohmert (R-TX) at least tried, but his bill got referred to the House Armed Services Committee rather than the House Judiciary Committee. Mr. Gohmert, please try again. Speaker Nancy Pelosi, please help. Mr. President, can't the Administration make this a priority?

Amicus brief filed in Supreme Court of Brazil

Conectas Direitos Humanos, a Brazilian human rights nongovernmental organization; the Allard K. Lowenstein International Human Rights Clinic, Schell Center for International Human Rights at Yale Law School; international human rights attorney Masha Lisitsyna; and the Editor have filed this brief as amici curiae brief with the Supreme Court of Brazil. The amici explain that a 2017 amendment to the Brazilian Military Penal Code is unconstitutional because the intentional killing of civilians by military personnel must be tried in ordinary, civilian courts:

• The Brazilian Military Justice System is not independent or impartial because judges are not insulated from the military hierarchy, which contributes to impunity for human rights violations

• Brazilian military investigators are not competent to investigate human rights violations

• Because their judges generally are active-duty members of the military, Brazilian military courts are not impartial

• Brazil's military court system lacks jurisdiction over intentional killing of civilians by military personnel because military courts have a limited and exceptional jurisdiction that does not include the prosecution of human rights violations

• International and regional human rights standards limit the scope of military jurisdiction to crimes of a purely military nature committed by military personnel
• Human right violations are excluded from military jurisdiction because, by definition, they are not crimes of a purely military nature

Baghuz

You may have seen the NYT report on the 2019 airstrike at Baghuz, Dave Philipps & Eric Schmitt, How the U.S. Hid an Airstrike That Killed Dozens of Civilians in Syria, Nov. 13, 2021.

As a follow-on, Jeff Shogol, of Task & Purpose writes that The military keeps finding it did nothing wrong when it investigates itself. Nov. 15, 2021.

The New York Times has a podcast discussion on the Baghuz strike here. Part of the discussion includes an interview with "Gene Tate, an evaluator who worked on the case for the inspector general’s office and agreed to discuss the aspects that were not classified." The podcast is more about the alleged failures to investigate and a cover-up.

LtCol Dean W. Korsak has made a few public comments, here, and here.

Just Security has a list of at least 48 questions that need to be asked about the strike.

This story is clearly a developing one and it will be interesting to see if the Commander-in-Chief or Secretary of Defense takes action to order an independent and transparent (as possible) investigation.

Non-liturgical Protestant Navy chaplains litigation

Were you wondering whatever happened to the long-running litigation by the non-liturgical Protestant chaplains against the U.S. Navy? Here is the latest decision by the U.S. Court of Appeals for the District of Columbia Circuit.

Matthew 7:7

For those conducting research in the case law of the U.S. Court of Appeals for the Armed Forces, the court's website includes a very useful search site function. Check it out; a test run just now from here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza yielded some interesting results.

The Gallagher Case

The case of retired Navy SEAL Chief Edward R. Gallagher continues to be in the news. Today's New York Times has this article adapted from Dave Philipps's book about the case. Through a link to a Courthouse News Service article by Bianca Bruno, we learn that a federal district judge has dismissed parts of a defamation case Chief Gallagher filed in California against Mr. Philipps and the former Secretary of the Navy.

The Baghuz Bombing

The final section of the casualty report was reserved for the legal opinion. In one version of the report that Mr. Tate was sent by the staff at Operation Inherent Resolve, the Baghdad-based military command overseeing operations in Iraq and Syria, a task force lawyer and an operations officer wrote that a violation of the law of armed conflict may have taken place. In another copy that came from Central Command, he said, that opinion had been removed.

From this New York Times article by Dave Philipps and Eric Schmitt.

Fresh on the heels of revelations by the Times and other media outlets about what actually happened in the Kabul drone strike, new and disturbing issues of accountability and transparency have arisen, this time involving anti-Islamic State operations in Syria in 2019.

A call for reform

Congress can’t ignore the lack of faith service members have in our current “commander-centric” system. If they aren’t equipped to oversee cases of sexual assault, what makes us think they’d be any better equipped to handle all felony crimes?

*  *  *

I served on active duty as a Marine Corps officer for six years. Knowing that someone with more legal skill was in charge of a trial wouldn’t have made me any less “disciplined”— if anything, knowing a legal case wouldn’t be handled by my commander might have given me more faith in the system. It’s hard to say reforming military justice would impact “good order and discipline” when troops are dealing with day-to-day issues like subpar housing, excessive wait times and slow referrals for mental health appointments and some incompetent leadership failing to decrease suicide rates. 

Kelsey Baker, writing here, in The Hill

Mali's military courts

Studio Tamani has a summary, in French, of the work of the country's military courts. Their main concern is military and civilian offenses by military personnel, but--notwithstanding the views of the African Commission on Human and Peoples' Rights*--they can also try civilians who are co-actors or accomplices of military accuseds.

* The Commission determined in 2003:

G. RIGHT OF CIVILIANS NOT TO BE TRIED BY MILITARY COURTS:

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.

Taliban government military court

According to this report, the Taliban government has established a military court to enforce Sharia law, divine decrees and social reform in Afghanistan. Stay tuned.

Amnesty International statement on Tunisia's misuse of military courts

Amnesty International has issued this detailed statement on Tunisia's continuing misuse of military courts to prosecute civilians. Excerpt:

Between 2011 and 2018, human rights groups documented at least six cases of civilians brought before the military justice system; this number has been exceeded in the past three months alone.

The civilians currently facing military courts include six members of parliament from the Al Karama party, including Abdellatif Aloui, along with lawyer Mehdi Zagrouba.  Anouar Ouled Ali, who heads the men’s legal defence team, told Amnesty International that they are being investigated in connection with an altercation with police at Tunis international airport on 15 March 2021. They are facing charges relating to public disorder, threatening state security, and impeding or insulting public officials in the course of their work. While some of these charges relate to recognizable offenses under international law, civilians facing such charges should do so in a civilian, not military, court.

Tunisia’s Code of Military Justice allow the military justice system to try civilians in specific circumstances. Article 91 of the Military Code of Justice mandates prison terms for military personnel or civilians who carry out public acts that denigrate the flag or the army or criticise the actions of military leadership or undermine its dignity.

Tunisian law grants the president final control over the appointment of judges and prosecutors in the military court system, based on nominations by the defence and justice ministers. As a result, military courts lack independence. Under international human rights law civilians should never be brought before military courts, no matter what the charges against them.

Guidelines from the African Commission on Human and Peoples’ Rights, which is mandated to interpret the African Charter on Human and Peoples’ Rights, of which Tunisia is a state party, state that military courts should not “in any circumstances whatsoever have jurisdiction over civilians.”

Veterans Day: Thursday, November 11, 2021

 

To all who have served: thank you.

Married law graduates not eligible to join Judge Advocate General Branch of the Indian Army

A petition has been filed in the Delhi High Court challenging policy being followed in the Indian Army, barring married law graduates from joining the Judge Advocate General (JAG) branch.

However, until 2017, the eligibility conditions for men and women desirous of joining the JAG branch as short service commissioned officer were different. Married women were not eligible for recruitment in the JAG department while there was no such restriction on married men. This was contested as discriminatory to women candidates. The Government had told the high court that “right to marry” was not a fundamental right and does not come under the ambit of the Right to Life under the Constitution.

However, the Government amended the eligibility condition under Army Instruction issued in 2017. Now married men and women are not eligible to apply for grant of Short Service Commission in the JAG branch of the Indian Army.

This too has been challenged in the High Court as discriminatory. It has been stated that since the legal age of marriage in India is 18 years and 21 years for females and males, respectively, there was no justification for making marital status an eligibility criteria. Due to the institutionalized discrimination being practised by the Government, law graduates aged 21-27 years are being deprived of their fundamental rights on grounds of marital status. The petitioner has contended that the discrimination on grounds of marriage violated Article 14 (Right to Equality), Article 16 (Equality of opportunity), Article 19(1)(g) (Right to practice any profession) and Article 21 (Right to live with dignity) of the Constitution.

The Delhi High Court has allowed early hearing in plea and will hear the case on 11 January 2022.

Wg Cdr U C Jha (Retd)