VMI in the news, again

Ian Shapira of the Washington Post reports here on allegations of hazing -- or was it waterboarding? -- at the Virginia Military Institute, and related civil litigation in the courts of the Old Dominion.

Not great for recruitment, one might think. Read down in the story for General George C. Marshall's near miss. Ouch.

$4 million to be spent on a second courtroom at GTMO

Carol Rosenberg of The New York Times does it again with this end-of-year article about the new courtroom being built at Guantánamo. "It is the latest retreat from transparency in the already secretive national security cases at the base, where the military and intelligence agencies have been restricting what the public can see. That includes forbidding photography of sites that were once routinely shown to visitors and declaring both populated and emptied wartime prison facilities off limits to reporters." Our view: a complete waste of $4,000,000.

Trouble in Dublin

Charges and countercharges have been flying within the Irish Defence Forces, culminating most recently in the transfer of Colonel Jerry Lane, who had been Director of Legal Services. Click here for an Irish Times summary. Excerpt:

It is understood much of the disquiet in the legal services section relates to the issuing of a General Routine Order (GRO) in 2019.

The GRO, which was signed by then Maj Gen [Seán] Clancy, granted additional powers to Col Lane, including granting him supervisory powers over disciplinary actions against troops and giving him the power to appoint prosecuting officers.

Concerns were raised within the Defence Forces that the GRO was in conflict with legislation and the matter was referred to the Attorney General’s office.

In an unusual move, the GRO was then revoked by Minister for Defence Simon Coveney in February of this year, according to documents seen by The Irish Times.

And that's just part of it. 

More from Maurer

Lieutenant Colonel (and professor) Dan Maurer of the U.S. Military Academy at West Point has posted this measured personal-views-only essay on Lawfare describing what the NDAA for FY22 does and does not do to military justice. It is must reading for Town Hall 23 on January 10 -- to which readers of Global Military Justice Reform are cordially invited. Excerpt:

In sum, the most significant changes wrought by the 2022 NDAA only shift the burden of prosecutorial judgment from certain flag officers in command to actual experienced and specialized prosecutors, who also happen to be in uniform and who swear the same oath to protect and defend the Constitution. These judge advocates, in addition, may consider the advice and recommendations of those very commanders whose troops were impacted, one way or another, by a certain limited menu of offenses they no longer have the discretion to address personally. Finally, the transfer of this burden is a foreseeable next step along the decades-long arc of “de-militarizing” military justice, not just in the U. S. but all over the world. This civilianization has happened in all the key and essential matters of due process and civil rights enjoyed by civilians facing criminal charges and punishment by the state. There is little reason to think that this arc will not continue. As this post reveals, there remains a host of prosecutorial and judicial-like powers that may, ultimately, cede to uniformed lawyers or civilian courts. This NDAA reform—as compromise-ridden as the final bill ultimately became—proves that the executive branch has not yet justified sufficiently the continuing relevance and necessity of these powers on principled grounds, to the satisfaction of Congress.

Mazal tov

Congratulations to three new NIMJ directors: GWU Professor Laura Dickinson and retired U.S. Air Force JAG Colonels Don Christensen and Jim Young. Don is president of Protect Our Defenders.

The Vaccine Mutiny and the New Nullification

A federal district judge has rejected Oklahoma's vaccine mutiny. Is there more at stake? Is this state effort the harbinger of a new Nullification Crisis? (At left, John C. Calhoun)

Happy New Year

From all of us in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, best wishes for a happy, healthy, reform-filled, and peaceful new year.

Vaccine litigation

Neri et al. v. The Queen. For those following the vaccine litigation in the U.S., unsurprisingly, the Canadian military is facing similar issues.

​The Applicants are members of the Canadian Armed Forces [CAF] who are unvaccinated against COVID-19 for varied reasons. They are opposed to a vaccine mandate. None of the Applicants has received an exemption or accommodation. They are concerned that as a result of their stance, they will receive a dishonourable release from the CAF. The Applicants therefore seek a “temporary prohibitive injunction” regarding the enforcement of any directive from the (now) Chief of Defence Staff, General W. Eyre [CDS] regarding a vaccine mandate, pending the outcome of their applications for judicial review challenging the directives [JR Applications]. . . .

For all the foregoing reasons, I dismiss the Applicants’ motions for a temporary or interlocutory injunction to restrain the enforcement of any directive regarding a vaccine mandate, pending the outcome of their JR Applications.

U.S. military personnel have also gone to court on the mandate. See, e.g., 

More than a dozen unidentified U.S. service members have filed a lawsuit seeking to overturn the Defense Department's COVID-19 vaccine order, saying they have natural immunity from contracting the illness, are pregnant or trying to have a baby and don't want the vaccines.

The lawsuit -- the second filed by U.S. military personnel against DoD leadership and the acting commissioner of the Food and Drug Administration -- seeks exemptions from Defense Secretary Lloyd Austin's Aug. 25 mandate requiring the vaccine, as well as a temporary restraining order to stop the ongoing immunizations.

Patricia Kime and Rebecca Kheel, 16 Service Members Sue to Halt DoD's Vaccine Order. Military.com, Oct. 19, 2021; Carol Shomaker, New River Marine, N.C. Marine Officer plaintiffs in military vaccine mandate lawsuits. The Daily News, Nov. 26, 2021.

Interestingly, a number of State governors are ordering their National Guard to ignore the National Guard Bureau directives on the military vaccine mandate or are suing in federal court. See, e.g., 

A federal judge in Oklahoma on Tuesday ruled against the state in its lawsuit challenging the vaccine mandates for members of the Oklahoma National Guard in a dispute that is the first critical test of the military's authority to require National Guard troops to get the shot.

Sean Murphy, Judge Rejects Oklahoma's Lawsuit over Guard Vaccine Mandate. Military.com, Dec. 29, 2021: Federal court denies Oklahoma's attempt to block Pentagon vaccine mandate. Axios, Dec. 29, 2021.

Cuba's new law on military courts

During the VIII period of sessions of the National Assembly of Popular Power (ANPP) a new law on Military Tribunals was approved on December 21, 2021, by the deputies of the ANPP to replace the law promulgated in 2002.  The new law forms part of the judicial reform in the country. 

José Luis Toledo Santander, President of the Committee on Constitutional and Legal Matters, presented an opinion prepared in conjunction with the National Defense and Internal Order, which highlighted that the norms are in conformity with the principles established in the Cuban Constitution.  He stated that military tribunals have the mission of hearing cases involving crimes that affect the discipline, order and other interests of special protection of the Cuban Armed Forces.  As with judges expert in criminal, civil or family law, there must be judges who are experts in military institutions, he explained. 

He stated that the new legislation provides for individual guarantees before the military tribunal, by consecrating the principle of equality before the law, the right of every person to the presumption of innocence and the right to be heard in a public forum, before a competent, independent and impartial tribunal. 

In addition, he emphasized that the new law is informed by cardinal principles for judicial activity such as the independence and impartiality of professional judges, allowing them to act free from  any restrictions, influence, pressure or interference.

What I've learned

The New York Times has this powerful essay by Lieutenant Commander Aaron Shepard, a Navy judge advocate and Guantánamo defense counsel. Excerpt:

As Americans, we are constantly presented with the choice of what our moral role in the world should be. We can pick a path of turpitude and compromise, choosing amoral, shortsighted means of attacking those who seek to harm us. But such choices come with consequences — they severely erode our relationships abroad, and weaken our moral core at home.

Alternatively we can choose to illuminate the many darknesses of the world with the power of our example, and reclaim the grace and humanity we find in the best efforts of the Americans who have come before us.

If we’re going to choose the latter path, we must acknowledge our mistakes, and show we can learn from them. What’s happened at Guantánamo is an example of one such error. Twenty years on it is time for us to choose how — or if — we can begin to repair the damage.

Constitutional ruling in Chile

By an 8-2 vote, the Constitutional Court of Chile yesterday invalidated a provision of the Military Justice Code that makes breach of military duty a crime. The court's press release can be found here. The decision itself is not yet on the court's website or in the Official Diary.

Town Hall 23: the military justice provisions of the FY22 NDAA

Now that President Joe Biden has signed the FY22 NDAA into law, it's time to take stock of what has happened . . . and try to get a sense of what happens next -- near-term, mid-term, long-term. Please join us for a discussion at Town Hall 23, at 0900 EST, Monday, January 10, 2022.

https://us02web.zoom.us/j/87698124177?pwd=U29xYmhNYTZ3QU94alQ3dUkzWis5Zz09

Meeting ID: 876 9812 4177

Passcode: 536655

One tap mobile

+13017158592,,87698124177#,,,,*536655# US (Washington DC)

+13126266799,,87698124177#,,,,*536655# US (Chicago)

Please feel free to share this invitation with friends and colleagues.

Bravo, mon colonel!

Congratulations to longtime Global Military Justice Reform contributor Colonel-Maître® Michel Drapeau on receiving the Award for Distinguished Service from the Ontario Bar Association. Excerpt:

Sheila Fynes, who battled the Canadian Forces for years as she tried to get answers about the suicide of her son and the bungled military police investigation into that death, said Drapeau’s award is well deserved. “He’s always the champion of the little guy,” said Fynes, who had Drapeau as her lawyer during the Military Police Complaints Commission hearing into her son’s death. “I think he is just a decent, honourable man. He doesn’t hesitate to help whenever or wherever he can.

“I will be forever grateful to Nicole and Michel and everyone in their office,” she added, referring to Drapeau’s wife Nicole.

NIMJ statement on the NDAA for FY22

The National Institute of Military Justice has issued this statement on the National Defense Authorization Act of Fiscal Year 2022. There's more to be done, not just on which offenses are disposed of by commanders. Think: panel member selection and military personnel access to the Supreme Court.

Tug of War?

Three junior officers of the Philippine Army are being sought in connection with the shooting of at least six civilians. Details here. The Army and the National Police are reported to be coordinating, but who should/will decide whether the officers are tried in civilian court or a court-martial? Human rights jurisprudence indicates that where a human rights violation has occurred and the victims are civilians, offenses should be tried in the civilian courts. Watch this space.

Watch your words in Tunisia

Tunisia is still at it in terms of misusing military courts to suppress civilian dissent. Human Rights Watch comments:

In the military court, charges have been brought for “defaming the army,” under article 91 of Tunisia’s military justice code, known as the Code of Prosecutions and Military Penalties. Criticism of the president risks prosecution as an offense under the military justice code because the president is commander-in-chief of the armed forces under the constitution. The military justice code punishes with up to three years in prison “any person, military or civilian, who denigrates the flag, defames the army, or incites military personnel to disobey or criticize military leaders.”

Nigerian Army holding civilians

Femi Falana, a noted Nigerian attorney, is speaking out about the army's month-long detention of three civilians. The gravamen of the case seems to be an alleged breach of contract. The Nigerian Army has no authority to detain civilians or to enforce civilian contract law.

“The three gentlemen are alleged to have been detained on the orders of a senior military officer over a breach of contract, a civil wrong. All requests for the release of the detainees from the illegal military custody have been ignored without any legal justification. 

“Since the authorities of the Nigeria Army have no power whatsoever to arrest and detain citizens who are not subject to service law we are compelled to request the Chief of Army Staff to ensure the immediate and unconditional release of Messrs Odunayo Obisanya, Obafemi Philip and Solomon Oguntuga. 

“However, if the military authorities refuse to accede to our request we shall not hesitate to institute an action at the Federal High Court for the enforcement of the fundamental right of the detainees to personal liberty. 

"We shall also pray the court to award damages in their favour and order the trial of the military officers involved in the criminal act of inflicting mental, physical and psychological torture on them in contravention of the Anti Torture Act, 2017.” 

Femicide

Reuters reports,

A court in the southern Mexican state of Chiapas has sentenced two army officers to 30 years in prison for femicide over the killing a female soldier, the state attorney general's office said on Friday.

 

Femicide is defined under Mexican law as murder of a woman stemming from gender-based violence. After climbing sharply during the last few years of the previous administration, femicides have crept even higher under President Andres Manuel Lopez Obrador.

Convictions of soldiers are rare in Mexico, where the armed forces are regarded as a pillar of the establishment.

 "It's very unusual to have verdicts issued against the military for human rights issues," said Raul Benitez, a security expert at the National Autonomous University of Mexico (UNAM). "And even more unusual for femicide."

The army has taken on more responsibilities under Lopez Obrador since he took office in December 2018 pledging to pacify Mexico after years of rising violence.

 Critics argue the military have been shielded from facing justice over human rights abuses[.]

In the spirit of the season

Global Military Justice Reform is given at times to invoking George III (right) as the symbol of unreformed military justice. In keeping with the holiday season--and in light of this Bloomberg Opinion column by Martin Ivens, who says he was "neither mad nor bad"--we're giving him the day off. As they say on Broadway, however, "he'll be back."

H/T to Commander (ret) Phil Cave for the Bloomberg link.

All the best from the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

4 judges in 7 years

Carol Rosenberg of The New York Times reports here on the recusal of the latest judge to preside over one of the Guantanamo military commission cases. Excerpt:

Lt. Col. Michael D. Zimmerman was the fourth judge to preside over the case of Abd al-Hadi al-Iraqi, 61, who was arraigned in 2014. Mr. Hadi is accused of commanding Taliban and Qaeda fighters who committed war crimes by targeting troops and civilians with suicide bombings and roadside explosives devices and by firing on medical evacuation helicopters in Afghanistan in 2003 and 2004.

Colonel Zimmerman’s departure illustrates a key problem that has bedeviled the hybrid military-civilian court that President George W. Bush established after the Sept. 11, 2001, terrorist attacks. Unlike federal judges, who are given lifetime appointments, military judges generally serve for a few years at military commissions and then move on to other legal roles or retire, creating delays and disrupting continuity in cases.

The Sept. 11 trial has had four judges sit at Guantánamo in nearly a decade, and three military judges handled the cases administratively from afar during the coronavirus pandemic. The Saudi prisoner who is accused of plotting the suicide bombing in 2000 of the Navy destroyer Cole has had four judges in a decade. The case of the Qaeda courier Majid Khan involved four judges from guilty plea to jury sentence.

Note to Congress, the President, and the Secretary of Defense: this is not working. 

Biggest global military justice reform stories of 2021

Over at CAAFlog, they're taking nominations for the Top 10 cases of 2021, among other things. Be sure to cast your ballot so no one can challenge the election results.

How about a Global Top 10 developments survey? Some possibilities:

• Successful (so far) challenge to the trial of civilians by Uganda's military courts
• Parliamentary consideration of the Armed Forces Bill, including amendments by the House of Lords
• New military justice legislation in Cuba
• First hit from Liechtenstein (okay, not exactly earth-shaking)
• Publication of March to Justice, edited by Navdeep Singh and Frank Rosenblatt
• Vaccine mutiny in Oklahoma and elsewhere
• Third Independent Review in Canada, by retired Supreme Court of Canada Justice Morris J. Fish
• LtCol Stuart Scheller (remember him?)
• Roberts-Smith litigation in Australia
• International Military Justice Forum à Paris

Got any suggestions? Please use the Comment function (real names only, as always).

Here we go again

The military judge in the al-Iraqi military commission case has recused himself. A copy of his decision can be found here. See if you agree with his recusal and the effective date.

Swim or sink

Herewith the tale of Strike Dzumba, who for 15 years has resisted the South African National Defence Force's 25-meter freestyle swimming requirement. It's not going well.

An Armed Forces Inspector General: an idea whose time has come in Canada

1992–1993,Canada deployed the Airborne Regiment to a United Nations–backed humanitarian mission to Somalia. In 1993, soldiers tortured and killed a teenager named Shidane Arone. These and other violent abuses shocked Canadians and damaged the country’s international reputation.

1995-1997: Commission of Inquiry - Deployment to Somalia 

            These abuses led to a Royal Commission of Inquiry [established by Order in Council, P.C. 1995-44, 20 March 1995] that revealed serious failures of leadership at the highest levels of the Canadian Armed Forces [CAF] and the disbandment of the CAR. The Inquiry was headed by the Honorable Mr. Justice Gilles Létourneau, then judge of the Federal Court of Appeal of Canada which held public hearings from late 1995 until the fall of 1996.

 Study Paper “Controlling Misconduct in the Military 

            A comprehensive study paper was prepared by Professor Martin L. Friedland for the Commission of Inquiry titled “Controlling Misconduct in the Military”. It was published in June 1997. In Chapter 7:  Civil Control, Integration, and Oversight, Dr. Friedland wrote that the 1994 report of the Joint Committee on Canada’s Defence Policy had already concluded unanimously that Parliament’s role should be strengthened:

“. . .whatever our individual views on particular issues of defence policy or operations, there was one matter on which we agreed almost from the beginning – that there is a need to strengthen the role of Parliament and development of defence policy.”

Dr. Friedland went on to state that: 

“Parliament should receive more reports on military matters. There are [now] no annua reports to Parliament by the military or the department. . . .What type of governmental structure could provide  [an] effective review? The conclusion is reached that two types of review is desirable. One is a body  internal to the military, comparable to the U.S. inspector General of the army. . . . The other type of   review should be by a civilian body outside the military that reports to Parliament. . . [at 125]                                                                          

Commission of Inquiry's Final Report recommended creation of Office of Inspector General

         The Commission of Inquiry’s 2,000 page long final report titled: “Dishonored Legacy: the lessons of the Somalia Affair. [Report of the Commission of Inquiry into the Deployment of the Canadian Forces to Somalia.] was also published in 1997. The report contained 157 recommendations, the majority of which were aimed at transforming the military justice system.  

One of its key recommendations aimed at ensuring both the oversight and accountability of the military. This was outlined in Volume 2 of the Report (pages 399-406): as a matter of high priority, the National Defence Act needed to be amended to establish an independent Office of the Inspector General with the following comprehensive powers, to:

 

·         Bring reports of wrongdoing to the attention of superiors;

·         Conduct periodic reviews of appointment to key leadership positions to ensure that the proper criteria are being applied and that such appointments are as competitive as possible;

·         Receive and investigate complaints about officer misconduct and about possible injustices to CAF members;

·         Correct or assist in correcting injustices to CAF members;

·         Inspect all relevant documents, conduct interviews as may be necessary, review minor disciplinary proceedings and administrative processes and make recommendations flowing from recommendations;

·         Evaluate systemic problems in the military justice system;

·         Conduct investigations into officer misconduct, such as failure to investigate, failure to take corrective action, personal misconduct, waste and abuse, and possible injustice to individuals;

·         Protect those who report wrongdoing from reprisals; and

·         Protect individuals from abuse of authority and improper personnel actions, including racial harassment

1998.  Negative reaction of the Canadian military to the proposed IG appointment. An article published by David J. Bercuson in the Canadian Military Journal (Volume 9, No3, 2009) summed up the reaction of the Canadian military to these recommendations:

“The initial reaction of the Canadian Forces on the whole was predictable; it resisted change. It resented civilians telling it what it ought to do. [at 37]

The Department of National Defence rejected the Commission of Inquiry's recommendation for an IG.  Instead, the office of the Ombudsman was created with a reporting structure directly to the Minister of National Defence was created and in 1998 the first Ombudsman was appointed. The office of the Ombudsman was set up to resolve complaints of unfairness and maladministration in the Canadian Armed Forces and the Department of National Defence. The office operates consistent with the principles of ombudsmanry: fairness, independence, impartiality, and confidentiality. However, the office of the Ombudsman does not exist in legislation. Instead, its exists by way of Ministerial Directives that can be withdrawn or modified at any time. The Ombudsman is also reliant on the Deputy Minister of National Defence for financial and human resources authorities. 

Twenty-years later the Canadian military accepts the concept of an IG. In response to the recent several allegations made against the most senior military leaders combined with a number of incidents of ineffective chain of command and high-profile resignations, at the behest of the senior military cadre, the Canadian Defence Academy prepared a Concept Paper dated April 12, 2021 whose purpose is to establish an Office of the IG.  The paper recommended that the Chief of the Defence Staff (CDS) recommend to the Minister of National Defence the creation of an Office of the IG.

Most strangely, the concept paper proposes to appoint a retired Lieutenant-General or a former CDS as the Inspector General who would be “responsive to the CDS”. This proposal was the subject of a recent critical review by military analyst, David Pugliese, of the National Post who writes

“. . . it would be a major mistake to have the military involved in any way in the office of an inspector general. The appointee needs to be seen and perceived as being totally independent and impartial

 “The appointee needs to be a ‘real civilian,’ not someone from the armed forces or public service. .The Inspector General should not report to the CDS, the DM or the Minister. . . The IG should be  an officer of Parliament, such as the Auditor General or Privacy Commissioner.”  

Military investigations in armed conflict

Claire Simmons, a doctoral candidate at the University of Essex Law School and Human Rights Centre, has written Whose Perception of Justice? Real and Perceived Challenges to Military Investigations in Armed Conflict for the International Review of the Red Cross. You can hear her brief oral introduction here. Précis:

States must investigate possible violations of international humanitarian law in armed conflict, and many States use military procedures for all or part of the investigation process. Particular tensions can arise with regard to the perception of justice in the context of military judicial procedures, especially surrounding questions of independence and impartiality. This article lays out the international legal framework which should be used to solve these challenges, arguing that a State must address both the specificities of military institutions and the need for a perception of justice by the affected communities in considering the proper administration of justice in armed conflict.

Congratulations on an important, timely contribution to the literature. 

DRC military court tries another civilian

A military court in the Democratic Republic of Congo has sentenced a civilian musician to 10 years in prison for demoralizing the army and inciting the populace to rebel against the army.

The African Charter has been interpreted to forbid any military trial of civilians. Human Rights jurisprudence in general strongly disfavors such trials.

192!

From time to time the Editor checks to see where Global Military Justice Reform readers are located. This morning someone in Liechtenstein visited the site. This makes our 192nd jurisdiction. 

This is as good a time as any to run all of the numbers, as the year draws to a close:

Views, 1,051,132

Posts, 6429

Comments, 982

Contributors, 27 (including the Editor)

Town Halls, 22

Jurisdictions, 192

Thanks to everyone for helping make this possible.

March to Justice panel discussion

Tune in tomorrow for an international panel discussion on the occasion of the publication of March to Justice: Global Military Law Landmarks, edited by Major (R) Navdeep Singh and LTC (R) Frank Rosenblatt. The event will be live-streamed:

Youtube live: https://www.youtube.com/watch?v=k_bza81mpPY

Facebook live: https://www.facebook.com/bluoneink

A needling question?

 On December 15, 2021 the Federal Court of Canada heard a motion for an injunction against a directive issued by the Canadian Chief of the Defence Staff for the COVID-19 vaccination of members of the Canadian Armed Forces by the end of November 2021. A Canadian Press story dated December 15, 2021 indicates that four members of the military are challenging this order particularly since the CDS order allows for exemptions on medical, religion and human rights grounds. [Approximately 800 members have applied for an exemption so far.] 

The Directive states, inter alia, the following:

Recalcitrant military members are facing career remedial measures such as being issued a career Recorded Warning and facing formal Counselling and Probation measures underway to their compulsory release (discharge) from the military under Item 5-F as being "Inapt for (further) Military service."

In court, these four  members argued that their 'constitutional rights' were being violated. They asked the Federal Court to issue a temporary injunction.  After hearing the motion, the Court adjourned reserving its decision.

Five states join Oklahoma in the Vaccine Mutiny

Here is the letter the Republican governors of Alaska, Iowa, Mississippi, Nebraska, and Wyoming sent to the Secretary of Defense yesterday.

Department of Serendipity (one in a series)

USAspending.gov is a federal government website that shows how the government spends our money. Of interest (no pun intended) is the page dedicated to the U.S. Court of Appeals for the Armed Forces (account symbol 097-0104). From it we learn:

Fiscal Year Summary

For this current fiscal year, this agency [sic] has been granted authority to spend $16M out of this federal account. They carried over a balance of $1M from last year, were given $15M in new appropriations, and have authority to use $0 of other budgetary resources.

To date, 97.6% ($16M) of the total $16M has been obligated.

For FY21, the court's outlay was $17,750,249. A useful table sets forth the spending by prime award. The single largest contract was for $2,453,276, awarded to Indigenous Technologies LLC for computer facilities management services. The firm is located in Chickasha, OK, and is owned by the Delaware Nation through Delaware Nation Industries. The second largest contract (for $934,570 in courier services) went to Intellectechs Inc. of Virginia Beach, VA.

The legal basis and mission of the USAspending.gov website are described here.

Where should soldiers be tried (and who should decide)?

Should armed forces personnel be tried in civilian court when the victims of their offenses are civilians? The question is being raised again in India's Nagaland State, as witness this Orissa Post column by Aakar Patel about the Armed Forces (Special Powers) Act.

Civilian teacher at military school tried by Pakistani court-martial

Dawn reports here about the court-martial of a civilian lecturer at the Pakistan Air Force College. His offense -- said to be a violation of the Official Secrets Act, 1923 -- was to record a phone call in which he congratulated one of his former students who had shot down an Indian Air Force aircraft, then circulating the recording of the call to others. Excerpt:

[T]he call lasted two minutes and 27 seconds, during which Mr [Hafiz Farooq Ahmed] Khan exchanged congratulatory remarks with the pilot, who stated on his own, without being questioned by the petitioner, that whatever was being shown on media was not even 30pc and that there had been 350 casualties on ground.

The petition then explained how the call got leaked and went viral on social media.

Mr Khan has filed a petition in the Lahore High Court seeking to overturn his conviction.

The trial of civilians by military courts is strongly disfavored under international human rights jurisprudence.

Draft exemption ruling in Colombia

The Constitutional Court of Colombia has ruled that certain Black ethnic groups -- "negras, afrodescendientes, raizales y palanqueras (NARP)" -- must be afforded the same exemption from compulsory military service as the law extends to the indigenous population. Details here. Excerpt from the news article:

During the constitutional process, the Ministry of Defense rejected the demand to include black communities, claiming that "the reasons of vulnerability granted to indigenous people should not be extended to other ethnic groups because they share similar characteristics" since, under that criterion, "It would be necessary to include . . .  all ethnic groups and communities for reasons of cultural diversity." 

"Then, no one would fulfill the constitutional duty to render military service, and to pay the military compensation fee, because the term indigenous contains them all," it warned.

Book event: "March to Justice"

Video of the book rollout for "March to Justice: Global Military Law Landmarks," edited by Global Military Justice Reform contributors Navdeep Singh and Frank Rosenblatt, is now available here. Over 1000 viewers around the world attended the online rollout. As you will see, the discussion by and among the panelists was robust and knowledgeable. Watch the video; buy the book.

NIMJ to Senate Judiciary Committee: shut down military commissions and send cases to Article III courts

The National Institute of Military Justice today sent this letter to the Senate Judiciary Committee. Excerpt:

Whatever the merits of military commissions’ original establishment, neither this Committee nor the public can ignore their failure over numerous presidential administrations to achieve justice. The Americans who lost loved ones on September 11, 2001 are, after 20 years, especially entitled to closure. It is time to turn out the lights on the military commissions and transfer their few remaining cases to Article III courts.

Town Hall

Global Military Justice Reform's Town Halls have been well-received but we'd like to expand the audience. If you have an idea for a Town Hall topic, please comment here.

Carabineros to be tried in civilian court

The Court of Appeals of Temuco, Chile, has ruled that 11 members of the Carabineros (the country's national police force) will be tried in civilian court rather than -- as they had requested -- in a military court, according to this account. The case will be heard in the Temuco Guarantee Court. The issue arose in the aftermath of Operation Hurricane, an intelligence operation that had targeted indigenous Mapuche leaders and went south.

This appears to be the second time the Temuco appellate court has refused to remit the matter to military jurisdiction.

Tunis court okays military trial of civilians

The Court of Appeal in Tunis has held that civilians may be tried by military courts, Middle East Monitor reports. Five Members of Parliament have now been jailed by the country's military courts.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts -- a power that is often used, as in these cases, to suppress dissent.

Worldwide book launch “March to Justice: Global Military Law Landmarks” followed by a Panel Discussion (10th December)

We are pleased to announce the Worldwide launch of our book “March to Justice: Global Military Law Landmarks”.

The launch would be followed by a panel discussion on Global Trends in Military Justice with a Q&A session. 

The discussion would be preceded by a minute of silence for the tragic loss of lives in India in a military helicopter crash on 8^th December.

This is the first in the series of discussions we plan in the coming months around the book. Contributors to the book would be a part of these discussions, depending upon their availability.

You can catch it live on the following links at 5.30 PM India Standard Time (7 AM EST) on 10^th December (Friday):

YouTube Live

Facebook Live

You may place your Questions for the Q&A session on the above live links.

The book is available here:

Amazon US

Amazon India

 

Smoke gets in your eyes

Writing for Just Security, Prof. Rachel VanLandingham, President of the National Institute of Military Justice, sees the military justice provisions of the FY22 NDAA as a missed opportunity. There'll be tons of commentary as the dust settles and the air clears after the recent smoke-filled-room sausage-making. Comments most welcome here, but please use your real name.

Sen. Kirsten Gillbrand and allies discuss the developments here. Note in particular Sen. Dick Blumenthal's polite but pointed comments about closed SASC markups.

Bar Admissions

One other data point emerges from the latest annual report of the U.S. Court of Appeals for the Armed Forces (discussed here): the number of admissions to the court's bar jumped from 149 to 202 between the 2019 and 2020 Terms and is the highest it has been since the 2014 Term. The COVID-19 pandemic may explain the recent change. The decline in cases presumably also explains the anemic bar admission numbers in recent years. Over the court's history, 37,605 attorneys have been admitted to practice before it.

FY22 NDAA

The House Rules Committee website includes the NDAA for FY22 in its latest form. The Joint Explanatory Statement explains what the negotiators did with the competing House and Senate bills. The part describing the military justice provisions begins on page 84.

Senate Judiciary Committee Guantanamo Hearing

It's going on right now. Here's the link:

https://www.judiciary.senate.gov/meetings/closing-guantanamo-ending-20-years-of-injustice

First Latin-American Data Base on Human Rights Standards

The Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS) with the assistance of the Konrad Adenauer Foundation presented today the first data base (https://www.iuslat.com/#search-advanced/content_type:2/*), with open and free access, to the decisions of the Commission and Court of Human Rights, the result of a joint project that was commenced in 2019.

The repository of the jurisprudence of the human rights organs of the OAS on the platform IUSLAT of the Konrad Adenauer Foundation permits an intelligent and rapid search for the decisions and standards developed by the organs of the Inter-American system.  The platform also contains constitutional jurisprudence concerning human rights standards from national tribunals throughout Latin America.

The Inter-American Court of Human Rights in recent years has failed routinely to translate its judgments into English for lack of funds, although some leading cases are now being translated. The new data base, although in Spanish, accepts the entry of terms in English, such as "military jurisdiction" and provides responses from cases that exist in English.  The jurisprudence of the Inter-American system on the issue of military jurisdiction is now easily accessible.

Given that the US and Canada are both member states of the OAS, it is curious that they are not dominant in the creation or support of this project.  Germany, as a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, understands the importance of a strong regional system for the protection of human rights in Europe and in other regions.