Sunday, November 28, 2021

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.

Saturday, November 27, 2021

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.

Friday, November 26, 2021

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."

Thursday, November 25, 2021

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.

Wednesday, November 24, 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.

Tuesday, November 23, 2021

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.

Zoom information

https://us02web.zoom.us/j/84923082927?pwd=OHhYZmhZcXh5YWpRSiszSWxpUHRwZz09

Meeting ID: 849 2308 2927

Passcode: 315807

One tap mobile

+13017158592,,84923082927#,,,,*315807# US (Washington DC)

+13126 

Dial by your location

        +1 301 715 8592 US (Washington DC)

        +1 312 626 6799 US (Chicago)

        +1 646 876 9923 US (New York)

        +1 346 248 7799 US (Houston)

        +1 408 638 0968 US (San Jose)

        +1 669 900 6833 US (San Jose)

        +1 253 215 8782 US (Tacoma)

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.

Monday, November 22, 2021

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.

Sunday, November 21, 2021

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.

Saturday, November 20, 2021

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



Friday, November 19, 2021

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?

Tuesday, November 16, 2021

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 BaghuzDave 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.

Monday, November 15, 2021

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.

Sunday, November 14, 2021

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.

Saturday, November 13, 2021

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.

Friday, November 12, 2021

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

Thursday, November 11, 2021

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 ZagroubaAnouar 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.”

Wednesday, November 10, 2021

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)

Tuesday, November 9, 2021

Friendly fire in the air

If you shoot down a roughly $14 million dollar Russian fighter aircraft, you're either a national hero (if you're Ukrainian 😊) or you're a defendant facing criminal negligence charges (if you're a Russian pilot who instead of "shooting" his colleague's plane with a video camera during a training exercise, actually shot his real 30 millimeter cannon, taking down an SU-30 fighter, though the crew safely ejected). Russian pilots are apparently similar to those the world over -- the defendant is blaming his maintenance crew for not properly de-commissioning the cannon (despite his own preparatory failures).

Guantanamo Bay jury foreman who critiqued commissions identifies himself

The Navy captain and jury foreman who wrote a letter condemning the proceedings at Guantanamo Bay publicly identified himself.  Captain Scott B. Curtis explains he wrote the letter after hearing graphic testimony of U.S. personnel torturing Majid Khan. The letter, signed by six other panel members, also critiqued the commissions' legal framework using the same language critics have used for years

Captain Curtis' and his colleagues' critiques evoke the arguments of those who say the commissions' purpose is to hide the harsh interrogation techniques U.S. personnel engaged in, preventing the tortured to have their case heard in an open and public forum. To this author, there is some irony to military members sitting on these panels now echoing the arguments of the system's critics, vindicating those that believe the military commissions are inconsistent with American ideals of fairness and justice.  

Some of the proponents for the commissions had argued, in part, that the military commissions were necessary to maintain anonymity for jurors to preserve their safety. And yet, once actual jurors saw and heard of the abuses the commissions allow, they brushed aside those concerns and publicly rebuked the process. 

Monday, November 8, 2021

Reading Room

The latest issue of the U.S. Army's Military Law Review is now available online. Of particular interest is Major (Ret) Dwight S. Mears, Medals "Ridiculously Given"? The Authority to Award, Revoke, and Reinstate Military Decorations in Three Case Studies Involving Executive Clemency, 229 Mil. L. Rev. 381 (2021). Dr. Mears's deep dive into an obscure but important set of issues focuses on the Trump-era Lorance, Golsteyn, and Gallagher cases. Author of The Medal of Honor: The Evolution of America's Highest Military Decoration (2018), he argues (at 382) that "the limits of revocation authority should be further clarified by policy, statute, or both." 

Saturday, November 6, 2021

Transparency (U.S. Marine Corps version)

Task & Purpose has posted an astounding public protest by editor Paul Sjoldra over the U.S. Marine Corps' indefensible withholding of the charge sheet (DD Form 458) in the case of United States v. Scheller. Global Military Justice Reform condemns the runaround Task & Purpose has chronicled. It is difficult to imagine a more effective way of undermining public confidence in the administration of justice.

If Task & Purpose pursues this matter, it should not content itself with the charge sheet but also demand the summarized record of trial, the audiotapes, and all motions and rulings by the military judge.

This would seem to be worth litigating in the Article III courts. Task & Purpose should also bring this to the attention of the House and Senate Armed Services Committees.

Jan. 6 cases

Military.com's Steve Beynon and Konstantin Toropin have this detailed run-down on what has happened to the military personnel known to have been at the Capitol on January 6th. That was 10 months ago. Should these cases have moved along faster? Excerpt:

The most decisive response from military leadership so far came in the case of Army Sgt. Timothy Hale-Cusanelli, who was demoted to private and booted from the force in June. The discharge came almost half a year after his arrest on Jan. 17, according to Army records. Hale-Cusanelli is also the only defendant of the five to still be incarcerated pending his trial.

Personal photos surfaced of Hale-Cusanelli apparently mimicking Adolf Hitler. "As indicated by multiple co-workers, [Hale-Cusanelli] shaved his facial hair into a 'Hitler mustache,' which he wore on duty" while working at a Navy base in New Jersey, according to court filings.

Meanwhile, both of the officers arrested, Army Capt. Mark Sahady and Marine Corps Maj. Christopher Warnagiris, are still serving.

Friday, November 5, 2021

Why are drug cases being tried in military courts in Gaza?

Al-Monitor reports here on a string of cases in which civilians accused of drug dealing in Gaza have been prosecuted in military courts. Excerpt:

Mohamed Abdel Wahab, legal expert at the Palestinian Center for Human Rights, told Al-Monitor that drug trafficking and trade cases fall under the civil courts’ jurisdiction, because they consist of civil cases.

He condemned the trial of civilians before the military justice as it violates the Palestinian Basic Law, specifically Article 30 that states, “Each Palestinian shall have the right to find sanctuary in the legal system.”

Abdel Wahab pointed out that after Hamas took control of the Gaza Strip in 2007, the movement issued Military Justice Law No. 3 of 2008, which allows the interior minister alone to refer any case to the military justice, without any limitations or conditions.

“The Hamas government is basically violating the law it itself issued, because there is no interior minister in its current government. The ministry’s undersecretary is facilitating the work of the ministry, and therefore [Hamas] is committing a second violation,” Abdel Wahab said.

He noted, “It is not within the powers of the undersecretary to sign decisions to refer cases to the military justice.”

Human rights jurisprudence strongly disfavor the trial of civilians by military courts. Other countries than regularly violate this norm include Lebanon, Egypt, Tunisia, and Uganda. 

Kabul drone strike

This morning's Just Security includes this essay by the Editor on "The Missing Kabul Drone Strike Report."

Bookshelf

The Journal of Power Institutions in Post-Soviet Societies is one of the most fascinating free online periodicals. Here's a link to the most recent edition. The topic is "The Russo-Ukrainian War Through the Eyes of Ukrainian Military Chaplains."

Thursday, November 4, 2021

Canada: CAF allegations of sexual criminal offences and misconduct will move to civilian justice system

CBC News reports in this article that the newly appointed Canadian Minister of National Defence, Anita Anand, is directing that the investigation of allegations and prosecution of sexual criminal offences or misconduct within the Canadian Armed Forces (CAF) move into the civilian justice system.

On October 20, former Supreme Court Justice Louise Arbour, who is conducting an external independent review into sexual harassment and misconduct in the Canadian military, made interim recommendations to Minister Anand’s predecessor. In her letter, Madame Arbour notably writes:

The Honourable Morris J. Fish’s recommendation No. 68 should be implemented immediately. All sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member, past or present (“sexual offences”) should be referred to civilian authorities. Consequently, starting immediately, the Canadian Forces Provost Marshal (CFPM) should transfer to civilian police forces all allegations of sexual offences, including allegations currently under investigation by the CFNIS, unless such investigation is near completion. In any event, in all cases charges should be laid in civilian court.

Correspondingly, civilian authorities should exercise investigative and prosecutorial jurisdiction over all sexual offences by CAF members. Should civilian authorities decline to proceed, the matter should be returned to the CAF to determine whether disciplinary action is desirable under the National Defence Act. Administrative Review related to sexual misconduct in the CAFD should continue to proceed, for the time being, in parallel to, in addition to or in the absence of the criminal charge

In her November 3 response letter, Minister Anand writes:

I share your concerns and agree that it is necessary to establish a process that will facilitate the handling of allegations of sexual offences in an independent and transparent way outside of the CAF and the military justice system.

[…]

I am grateful to you for your efforts to build on the excellent work of the Honourable Marie Deschamps and the Honourable Morris J. Fish. I very much believe that a comprehensive approach to addressing sexual harassment and misconduct in the CAF is necessary for the CAF to live up to its stated values and the expectations of Canadians. I am pleased, therefore to accept your interim recommendations and to inform you that the Defence Team will begin work immediately to implement them.

[…]

I am pleased to inform you that the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) are working quickly to develop the mechanisms and processes that will be required to implement your interim recommendations. I understand that they intend to engage with your team in order to ensure that their work on implementation remains consistent with your recommendations. In addition, the CFPM and DMP have begun to engage federal, provincial and territorial (FPT) counterparts on implementation of these interim recommendations and my officials are collaborating with the Department of Justice who have confirmed their willingness to facilitate or support these FPT discussions.

Both former Justice Arbour’s letter and Minister Anand’s response can be found in a post she made earlier today in her Twitter account.

A scholar (1974-1987) and a judge (1987-1995; 1999-2004), Louise Arbour was also the Chief Prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia (1996-1999), the UN High Commissioner for Human Rights (2004-2008), and the UN Special Representative for International Migration (2017-2018).

After an academic career (1997-2019), specializing in corporate governance, Anita Anand was first elected in 2019 and appointed as Minister of Public Services and Procurement shortly after. She led Canada’s challenge to secure COVID-19 vaccine supply. She was sworn in as Minister of National Defence on October 26, following last September Canadian federal election.

Clerkship opportunity (x2)

Judge Liam P. Hardy of the U.S. Court of Appeals for the Armed Forces is in the market for two law clerks for 2022-23. Details can be found here.

State of the vaccine

The [U.S.] Air Force has not approved any requests from active-duty airmen and Space Force guardians who requested an exemption from mandatory COVID-19 vaccinations on religious grounds, according to new statistics released by the service on Wednesday. The service is currently reviewing 4,933 religious exemption requests.
. . .

The stats show that 95.9% of the active-duty force has been fully vaccinated, while an additional 1% has been partially vaccinated. The COVID-19 vaccine became mandatory for all service members on Aug. 24, and top Air and Space Forces officials declared the vaccination efforts a success.

Task & Purpose, Nov. 3, 2021.

(Update) See posting on CAAFlog of interest.

More than 92% of active-duty troops have received at least one dose of a COVID-19 vaccine as service deadlines for getting the jab approach.

But roughly 103,000 service members haven't even gotten their first shot despite deadlines for being fully immunized. That includes roughly 48,600 Army soldiers, 7,000 Navy sailors, 15,500 Air Force airmen and Space Force Guardians, and 26,800 Marines, according to statistics released by the services.

The Air Force has separated quite a few from basic training and the other Services are considering various options from administrative separation to court-martial.

The Department of Defense (DoD) administers 17 different vaccines, as outlined in the Joint Instruction on Immunizations and Chemoprophylaxis (Secretaries of the Air Force, Army, Navy, and Transportation, 1995), for the prevention of infectious diseases among military personnel, where appropriate. The vaccines are administered to military personnel on the basis of military occupation, the location of the deployment, and mission requirements.