By the numbers

As 2022 draws to a close, it's again time to run the numbers. Since its inception on January 12, 2014, Global Military Justice Reform has had 1,183,376 hits from readers in 193 jurisdictions. There have been 6,881 posts and 1,044 comments. At present, the newsroom includes one Editor and 26 contributors. This year, we (along with CAAFlog) affiliated with the National Institute of Military Justice. Both blogs retain their editorial independence.

Many thanks to the contributors and commenters who have brought the blog this far. Please tell friends about Global Military Justice Reform. If you are a reader and would like to become a contributor, please contact the Editor. Got an idea for a post, let us know that as well. And should we host more Town Halls? If you submit a comment, please remember to give your name -- the blog is moderated and does not accept anonymous or pseudonymous comments.

The newsroom staff will be going ashore early today. Have a safe holiday.

For your bookshelf

Retired U.S. Marine Corps Major Fred Galvin's book (written with Sal Manna), A Few Bad Men, is the subject of this Marine Corps Times interview. This We Are The Mighty article quotes Major Galvin about his goal:

To drive legal reform changing the Department of Defense’s capital cases to be adjudicated by civilian versus military authorities in the same manner in which Military Sexual Assault cases have changed from being handled by military to civilian judicial authorities. This is due to the repeated examples of Unlawful Command Authority [sic; should read "Influence"] against defendants that have been experienced in the military.

The article also observes that Major Galvin sued the government in 2021. His complaint in federal district court can be found here. The 2022 decision of Judge John D. Bates dismissing part of the case can be found here.

This just in

Very few* Presidents have actually been court-martialed during their time in office. While allegations of misconduct have plagued many Presidents throughout history, only a few** have been seriously considered for court martial.

From this Raleigh Public Record post by Mark Rodriguez, who describes himself as "a news blogger who has a passion for writing. He loves to share his thoughts on current events and offer his perspective on the world around him. He is always looking for new ways to engage with his readers and provide them with valuable information." Thanks, Mark. All good to know.

* Should read "No." [Footnote added.]

** Should read "none." [Footnote added.]

Current literature

This article on the centennial of the Supreme Court of the Russian Federation appears at 26 RUDN J. L. 808 (2022). The authors write (at 817):

The  experience  of  legal  regulation  of  the  organization  of  military  justice  in wartime is relevant for the present period due to the Russian special military operation. The specifics of organization of military justice in these conditions have yet to be legislated.

RUDN (the Peoples' Friendship University of Russia) was previously known as Patrice Lumumba University. 

New Year 2023

Ordinarily, Global Military Justice Reform would post an upbeat Happy New Year message round about now. The staff, taking some time off from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, decided not to do so this year in light of the continuing hostilities in Europe. This blog, as such, does not have a foreign policy, but it does aspire to a sense of humanity, a hope for peace, and a commitment to the rule of law. Let's leave it at that.

State military justice watch

The Wisconsin Legislature is working on changes to the state's Code of Military Justice, which applies to the National Guard and Air National Guard when not on federal status. This news article explains the background (the initiative grows out of sexual assault and harassment issues); a preliminary draft of bill language and an explanation can be found here.

Restoring Faith in Military Justice

Professors Eleanor T. Morales (Wake Forest) and John W. Brooker (University of North Carolina) have written an article titled Restoring Faith in Military Justice, 55 Conn. L. Rev. 77 (2022). Abstract:

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military leaders also broaden the underlying criteria upon which their recommendations and decisions are made.

This Article proposes an innovative framework to assist military leaders in implementing a holistic approach to decision-making. Borrowing from the law of armed conflict, we propose a test that empowers decision makers to consider all the federal principles of prosecution and sentencing that Congress has repeatedly indicated should serve as touchstones for reform. When employing this framework, military justice decision makers will better account for the long-term impact on accused service members, society, and victims rather than solely focus on short-term deterrence within the unit. This proposal attempts to bring military prosecutions more in line with the criteria applied by civilian federal prosecutors and restore credibility in the military justice system, thereby enabling it to continue to do what it was designed to do.

The Villanova Conference

Military Justice Reform: The Next Twenty Years is the title of a conference to be held at Villanova University's Charles Widger School of Law on February 24, 2023. Details can be found here. If you are reading this post, you ought to come to the conference.

Not so fast

A two-judge bench of the Peshawar High Court has stayed the execution of five civilians sentenced to death by military courts. According to this article in Dawn, the issue seems to be that, although the Supreme Court of Pakistan has upheld the trial of civilians by court-martial pursuant to a controversial (and no longer in force) constitutional amendment, the provision under which these men were tried applied only to offenders "who claimed or were known to be part of terrorist groups using the name of religion or religious sects to carry out their activities."

Paralysis in Madrid

The logjam in Spain's judicial system has gotten so severe that King Felipe VI has expressed concern, albeit tactfully. According to this article, "[t]he Central Military Court has no members after the last of its judges reached retirement age last Wednesday."

Russian Duma introduces bill suggesting impunity for war crimes

 Global Military Justice Reform contributor Jan Peter Spijk has written this Note on a legislative proposal that is currently under consideration in the Russian Duma. Many thanks to General Spijk.

The Rat's Case

OK, it's the holiday season. To brighten your days, we present this tale [ouch] of Tsar Peter III, left, and The Rat's Case.

Pesky paywall

One thing about Global Military Justice Reform: it's free -- i.e., no paywall. On the other hand, there are times when other media hide the most interesting stories behind the curtain. Here's a tantalizing item that came over the transom in the glass-enclosed newsroom high above Global Military Justice Reform Plaza:

Biggest scandals from Military Courts in 2022

From sharing nude photos to secret relationships, here are the biggest scandals to come out of the Defence Force Magistrates court in 2022

Presumably we will someday learn what made The Adelaide Advertiser's list. 

Pressure for Reform in Japan's Armed Forces

Japan's Army (Ground Self Defense Force, or GSDF) is seemingly beginning to realize the extent of its sexual harassment and assault culture as noted in this article -- pushed to such realization by both recruiting needs and the bravery of courageous survivors such as Rina Gonoi. Related fact:  Japan scores 116th (US is 27th) of 146 rated nations regarding gender equality. 

Happy Corps Day

 

Court of Federal Claims judicial conference materials

On October 27, 2021, the U.S. Court of Federal Claims conducted its 32nd annual judicial conference, the materials for which include useful presentations from three of the record-correction boards (nothing from the U.S. Coast Guard or Public Health Service). The conference materials can be found here.

Russian friendly fire prosecutions

A variety of trials have been conducted by Russian military authorities as a result of friendly fire and other mishaps in the Russo-Ukrainian War, according to this Important Stories article. The article surveys a variety of incident types that have led to prosecutions. Broader issues are also examined. Excerpt:

Military experts interviewed by Important Stories say it is impossible to estimate the share of losses at the hands of fellow soldiers in the total number of losses of the Russian army during the war, but some of them are sure that it exceeds the global conventional norm and is growing compared to the share of such losses in the first months of the war. 

“At the very beginning of the full-scale invasion, there were fewer casualties from friendly fire in the Russian army than [appears] now,” says Ukrainian military expert Oleksandr Kovalenko. “At the very beginning, you could talk about the average global value [of such losses], but today it is higher.” 

Two factors have contributed to the increase in such losses of the Russian army in recent months, Kovalenko says: “The first is the quality of command and control and communication between forward units and the rear. During the Russian offensive in February and March, command and control was carried out at a more or less acceptable level. But today the effectiveness of this system is significantly undermined due to the destruction of a large number of [Russian] command and control centers. Now the Russian command is forced to place command and control at a distance of up to 30 kilometers from the line of contact - outside the zone of destruction of at least artillery used by the Armed Forces of Ukraine, in particular high-precision long-range artillery. And command and control of troops suffers from this, the coordination between them is violated.

Reading list

Dr. Razan Albanna of the Department of Political Science, University of North Texas at Dallas, has written The Constitutional Context of Exceptional Courts and State Repression, Int'l Politics (2022). https://doi.org/10.1057/s41311-022-00420-w. 

According to the abstract: 

. . . Drawing on Draft Principles Governing the Administration of Justice through the Military Tribunals, I gather and code data on exceptional courts from the national constitutions of 140 countries between the years of 1990 and 2005. I show that provisions related to exceptional courts prohibiting the trial of human rights violations in exceptional courts, protecting the right to appeal exceptional courts’ decisions, prohibiting fair trial derogations during emergency are more likely to increase the cost of repression. . . .

The full article is unfortunately behind the Springer paywall.

A step forward in Uganda

In an important ruling, the Constitutional Court of Uganda has held in Byarugaba v. Attorney General, Const. Pet. No. 44 of 2015 (Uganda Const. Ct. Dec. 15, 2022), 2022 UGCC 11 (3-2 decision), that civilians may not be tried by courts-martial. There is also this news report. 

Dreyfus photos

Ouest-France reports that the Museum of Brittany, in Rennes, has acquired an album of rare photos relating to Captain Alfred Dreyfus, his return from Devil's Island, and his retrial. Details can be found here.

R.C.M. 706 in film

This guest contributor enjoyed watching Benediction (2021) about the life of British poet Siegfried Sassoon.

Sassoon was decorated for valor as a second lieutenant on the Western Front in World War I. But he faced a court-martial for sending a widely-publicized letter of protest about the conduct of the war. 

Unbeknownst to Sassoon, his political allies, including advisors to Winston Churchill, were able to get him out of a court-martial by raising questions of his sanity. He faced a sanity board instead. 

(That is the basis of the title of this post: R.C.M. 706 is the U.S. Rule for Court-Martial procedure for questions of an accused's mental competence to stand trial).  

This guest author enjoyed the movie, and is of the opinion that Benediction deserves a place in the pantheon of great anti-war movies such as Paths of Glory, Platoon, and Full Metal Jacket.

Want to get good and angry at Congress and the Supreme Court?

Read Maximillian Potter's excellent, infuriating article Incident to Service in the current issue of Vanity Fair. It's about the Feres Doctrine. Shame on Congress and the Supreme Court. Shame!

Russian trials of absentees and deserters

Meduza, a Russian- and English-language news outlet based in Riga, Latvia, has this report from Mediazona on how Russia is dealing with military absentees. The article cites three cases decided in December in which military courts handed down sentences for AWOL and desertion. Russia recently increased the penalties for desertion and unauthorized absence during periods of mobilization and combat.

Renewable terms of office and judicial independence

Does the fact that a military judge's term of office is brief and renewable raise a question of judicial independence? That question has just been addressed by the Supreme Court of Appeal of South Africa in O'Brien v. Minister of Defence, [2022] ZASCA 178 (13 December 2022). Excerpt:

[O]nce it is accepted that the Minister can assign officers to the function of a military judge and can do so for a fixed period of whatever duration, it is difficult to see why the Minister cannot renew such an appointment. It must be said that there can be little to choose between a series of successive appointments for a fixed period and the renewal of an appointment after it has run its term. Here as well, the case advanced in support of the s 15 challenge is a purely conjectural one. It rests on the assertion that it may be ‘reasonable to anticipate that military judges may be inclined to temper their reviews or adjust their judgments to secure further assignments’. But, once again there is nothing to suggest that any military judge has been put to such a choice. To suggest that a judge may be conscripted to one or other end is a most serious allegation. It ill behoves the appellant to raise an allegation such as this, in this vague and unsubstantiated fashion. The insinuation that a judge may ‘adjust a judgment’ to ‘secure further assignments’ is nothing short of scandalous. Absent a proper factual foundation (of which there is none) any apprehension of such possibility can hardly be reasonable.

Was Judge O'Brien out of line in questioning the Minister's administration of the South African military judiciary or suggesting that the arrangements for judicial terms of office might be unconstitutional, even if he lacked power to rule on the matter? After studying the opinion, is a reader left in doubt about the independence of the country's military courts? Will this case go to the Constitutional Court?

Background on the litigation can be found here.

Five, at last

The Senate today confirmed Col. (ret) M. Tia Johnson to be a judge of the U.S. Court of Appeals for the Armed Forces. Congratulations to the newest member of the court.

Civilian crime, military trial

The Constitutional Court of Chile has rejected a claim that it is unconstitutional for a military court to try a civilian offense (here, tax fraud). The decision in Carlos Frez Ramírez, No. 12.215-2021 (Chile Const. Ct. Nov. 9, 2022), is explained here in Diario Constitucional . Excerpt: (gracias, Google Translate):

Regarding previous rulings, the court warns that the specific case clarifies that this is not comparable to those that have led the Court to declare the inapplicability of article 5 No. 3 of the Code of Military Justice considering the exceptional nature of military justice. Indeed, on the one hand, the applicant does not have the status of a civilian or a military victim who is taken, by the contested legal norm, before the military court. On the other hand, in relation to the crime, although the case involves a common crime typified in article 239 of the Penal Code, in accordance with the criteria set forth in Nº 5893-19, it is conduct committed in the act of military service, of great institutional interest to the Army . . . 

On the other hand, the court argues that the administration of defrauded funds can be classified, without violating the Constitution, as an act of military service, or on the occasion of it, since it is so closely connected with the exceptional military function that only the applicant could authorize the processing of the reserved funds that would have been the object of the crime. In this line, it argues that all this debate is typical of a legality dispute that must be resolved in the judicial process, in all its instances, it is not up to this Court to anticipate that trial but only to judge on the constitutional or unconstitutional effects of the attribution of jurisdiction in the specific case.

The coming week in Canadian military law ...

Last week witnessed the acquittal of Major General (MGen) Dany Fortin, by the provincial court in the province of Québec, on a charge of sexual assault, contrary to s 271 of the Criminal Code.  The allegations dated to 1988, when both MGen Fortin and the complainant attended Royal Military College at St-Jean, QC as officer cadets.  In addition to the policy shift announced last year by the Minister of National Defence (MND), Anita Anand, to have criminal offences of a sexual nature tried before civil courts, due to the date of the allegation, the matter could only be tried before a civil court of criminal jurisdiction.  (See R v MacPherson, 2022 CMAC 8).

Following the acquittal, there were growing calls from some sectors of the Canadian military and veteran communities, and the public generally, for MGen Fortin to be assigned meaningful duties commensurate with his rank, experience, and abilities.

For further elaboration:

Maj.-Gen. Dany Fortin is acquitted of sexual assault charges, will he be reinstated?, A Little More Conversation with Ben O'Hara Byrne, 5 December 2022

Maj.-Gen. Dany Fortin acquitted on 1988 sexual assault charge, CTV News (Canadian Press), 6 December 2022

MGen Fortin was acquitted.  Now what?, Law Office of Rory G Fowler, 6 December 2022

This weekend, the Department of National Defence social media account tweeted an announcement that the MND will "... hold media availability, and DND/CAF officials to hold technical briefing, regarding Defence Minister’s Report to Parliament on Arbour recommendations. ..." from 1330 to 1430 hrs EST on Monday 12 December 2022. [Referring to the Report of the Independent External Comprehensive Review completed by former Supreme Court of Canada Justice Louise Arbour.]

It will be interesting to see what the MND claims has been done, and what has actually been done.  It will also be interesting to see if what has been done (either claimed or actual) has had any positive impact.  The principles upon which decision- and policy-making has been based - if, indeed, they have been based upon reasonable and articulable principles of public policy and law - will be of significant importance.

This is not the last that such issues will be discussed in the near future, and there is an air about this announcement of 'dumping the announcement on the run' shortly before Parliament breaks for the Christmas (year end) recess.

Heads up

Mexico's Supreme Court has decided to take up a series of cases concerning military justice and the role of the armed forces, according to this El Universal report. Excerpt (gracias, Google Translate):

The country's Highest Court pointed out that in the pending cases various provisions of the National Guard Law, the National Detention Registry Law, the Code of Military Justice and the Military Code of Criminal Procedures, the Organic Law of the Federal Public Law, the Organic Law of the Mexican Army and Air Force and the Law of Promotions and Rewards of the Mexican Army and Air Force and the agreement that has the permanent Armed Forces in public security work.

Among the appeals that will be analyzed by the ministers are the unconstitutionality actions presented in 2016 and 2019 by the National Human Rights Commission (CNDH) against the extension of military jurisdiction and the National Guard Law, the National Law on Record of Detentions, as well as the National Law on the Use of Force.

Likewise, they will submit for review the action of unconstitutionality that 49 senators from different political parties presented against the reform that supports the transfer of the National Guard to the Secretary of National Defense (Sedena), stopped at the moment by various injunctions filed by a group of Civil society organizations.

The three constitutional controversies with file number 85/2020, 87/2020 and 91/2020, pending resolution by the Supreme Court of Justice of the Nation (SCJN), were promoted by the governments of Colima, Michoacán, the Chamber of Deputies and the municipality of Arteaga, in the state of Aguascalientes, against the agreement of President Andrés Manuel López Obrador, for the permanence of the Armed Forces in public security work until 2024.

Sentence disparities

Should a country that abolishes its death penalty for civilian crimes retain it for military offenses? That is what Equatorial Guinea has done. The European Union has urged the country to extend the abolition to the Code of Military Justice:

On Human Rights Day, the European Union welcomes the abolition of the death penalty in Equatorial Guinea, following the entry into force of the new Criminal Code earlier this week.

With this historic step, Equatorial Guinea joins the majority of countries in the world that have eliminated the capital punishment. This abolition reflects the growing trend around the world to abandon this type of punishment.

The European Union encourages Equatorial Guinea to complete this important achievement by excluding capital punishment from its Military Justice Code as well.

The death penalty is a cruel and inhuman punishment, representing an unacceptable denial of human dignity and integrity. It fails to act as a deterrent to crime and it makes any miscarriage of justice irreversible.

The European Union strongly opposes the death penalty in all circumstances and will continue to work for its abolition in the few remaining countries that still apply it.

Drama note

Readers who live in the national capital area should keep an eye out for A Soldier's Play, starring the fabulous Norm Lewis. It runs through tonight at New Haven's Shubert Theatre, where it got this thoughtful and accurate review in the Independent. Its run at Washington's Kennedy Center begins on December 13, according to this site.

The play, which received a Pulitzer Prize in 1981, is powerful and timely. Brian Slattery wrote in the Independent:

The play works as a satisfying police procedural, but like the best mysteries, the investigation into the crime itself is a journey to exposing larger, deeper, and tougher social truths, about the greater injustices lurking behind criminal and legal victories, and about the way a system built on racial oppression has a way of infecting everyone within it. In the context of the double hindsight the play offers — it’s 2022, and we’re revisiting a play written four decades ago about an era four decades before that —  A Soldier’s Play asks a contemporary audience to investigate how far we’ve really come since the days of the deeply segregated Jim Crow South. Sure, some things have changed. But it’s possible that if we dig a little deeper, we won’t like what we find.

The de Róiste case closure in Ireland--after decades

The Irish Minister for Defence has issued an official apology to an officer who was involuntarily retired from the Defence Forces in 1969. The case had been the subject of protracted litigation as well as an independent inquiry. The government's statement can be found here.

Defense bill for FY23 and the arc of military justice reform

Roll Call has this

Sen. Kerstin E. Gillibrand

report by John M. Donnelly summarizing the long and complicated path to the latest military justice reform legislation. Moral: persistence counts. Watch this space for future efforts to shift more offenses from lay commanders to legally-trained special trial counsel.

New Military Justice Law in Oman

A new Military Justice Law has been promulgated by the Sultan of Oman, according to this short article in the Times of Oman. The text of the law will appear in due course on the online Official Gazette.

NDAA proposals affecting U.S. military justice

The current proposals for change in the National Defense Authorization Act (NDAA) pending in Congress are at this link:

https://www.nimj.org/uploads/1/3/5/5/135587129/ndaa.pdf

Army Office of Special Trial Counsel

General Orders No. 2022-10 (July 6, 2022), establishing the U.S. Army Office of Special Trial Counsel, can be found here.

Important materials posted on Joint Service Committee website

The Joint Service Committee on Military Justice (JSC) has posted useful explanatory materials about the pending proposed changes to the Manual for Courts-Martial in response to the important military justice provisions of the National Defense Authorization Act for Fiscal Year 2022. These include an executive summary of the changes, questions from the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD), and the JSC responses.

Important decision of Italy's Constitutional Court

In a potentially important ruling, the Italian Constitution Court held on October 19, 2022, that it was unconstitutional to provide for no possibility of adjusting downward the minimum sentence for sabotage in violation of the military penal code. Italy's civilian criminal law allows for such an adjustment when the damage done is temporary or minor. The court declared "the constitutional illegitimacy of art. 167, first paragraph, of the military penal code of peace, in the part in which it does not provide for the penalty to be reduced if the fact of temporarily rendering unusable, in whole or in part, ships, aircraft, convoys, roads, factories, depots or other military works or works used for the service of the Armed Forces of the State are, due to the particular tenuousness of the damage caused, of a minor entity." [Google translation.] The court has thus held that the door must at least be open for a sentence adjustment when a case is tried in the military courts. Judgment of Constitutional Legitimacy in an Incidental Way, No. 244/2022 (Ital. Corte Costituzionale Oct. 19, 2022), will be available in due course in the Official Gazette. Commentary by Tullio D'Elisiis Antonio be found here.

Malaysian Federal Court desertion decision

In its recent decision in Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Ke-empat Infantri Malaysia, Civil Appeal No. W-01(F)-5-02/2022(W), the Federal Court of Malaysia overturned the desertion conviction of a military doctor. The text of the judgment is apparently not yet available, but three of the doctor's attorneys have prepared a summary of the case and the issue presented, Tan Sri Dato' Cecil Abraham, Rishwant Singh & Jules Khor Weizhen, What Is the Meaning of Desertion under Section 54(1)(a) of the Armed Forces Act 1972? (Nov. 30, 2022).

6th Circuit rules on USAF mandatory vaccination appeal

The decision in Doster v. Kendall, Nos. 22-3497/3902 (6th Cir. Nov. 29, 2022) can be found here. From the court's introduction:

Under RFRA [the Religious Freedom Restoration Act], the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues. . . .  We thus may uphold the Plaintiffs’ injunction based on RFRA alone. The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class. It can answer whether these alleged policies violate RFRA and the First Amendment in the same way. A ruling for the class also would permit uniform injunctive relief against the allegedly illegal policies. We affirm.

High Commissioner for Human Rights speaks out on secret military capital trials in Myanmar

The Offie of the High Commissioner for Human Rights has issued this press release about secret military trials in Myanmar:

UN Human Rights Chief Volker Türk on Friday expressed shock that more than 130 people have now been sentenced to death by military courts behind closed-doors in Myanmar since the military launched a coup last year, following fresh convictions this week.

At least seven university students were sentenced to death by a military court on 30 November. There are reports of as many as four additional death sentences being issued against youth activists yesterday. The UN Human Rights Office is seeking clarification of those sentences.

“The military continues to hold proceedings in secretive courts in violation of basic principles of fair trial and contrary to core judicial guarantees of independence and impartiality,” Türk said, calling for the suspension of all executions and a return to a moratorium on death penalty.

“Military courts have consistently failed to uphold any degree of transparency contrary to the most basic due process or fair trial guarantees.”

In July, the military carried out four executions, the first in approximately 30 years. A former lawmaker, a democracy activist, and two others were executed despite calls from the Association of South-East Asian Nations (ASEAN) and the international community to desist.

Close to 1,700 detainees of the nearly 16,500 who have been arrested for opposing the military’s coup have been tried and convicted in secret by ad hoc tribunals, sometimes lasting just minutes. None have been acquitted, and often they have not had access to lawyers or their families.

The latest convictions would bring the total number of individuals sentenced to capital punishment to 139 individuals since 1 February 2021.

The actions of the military are not in keeping with the ASEAN 5-point consensus that the South-East Asia nations have just re-committed to uphold at the ASEAN summit in November, Türk said.

“By resorting to use death sentences as a political tool to crush opposition, the military confirms its disdain for the efforts by ASEAN and the international community at large to end violence and create the conditions for a political dialogue to lead Myanmar out of a human rights crisis created by the military,” the UN Human Rights Chief added.

William T. Generous, Jr., author of Swords & Scales, has died

William T. Generous, Jr., a U.S. Navy veteran and author of a notable 1973 book about military justice (Swords & Scales: The Development of the Uniform Code of Military Justice) died on October 25, 2022. Dr. Generous's obituary can be found here.

Intriguing case in Canadian military history

Recently, the Globe and Mail ran an interesting Op-Ed piece by Canadian military historian , Dr. Nathan Greenfield, Ph.D.  Dr. Greenfield has written previously about prisoners of war (PW), from various countries, during the Second World War.  His recent Op-Ed was presented to publicize his latest book:  Hanged in Medicine Hat: Murders in a Nazi Prisoner-of-War Camp, and the Disturbing True Story of Canada’s Last Mass Execution (Toronto: Sutherland House, 9 November 2022).

An historian and journalist, Dr. Greenfield offers an intriguing tale that, for some readers, may call to mind the 1990 made-for-TV movie starring the late Walter Matthau: "The Incident".  And Dr. Greenfield's book offers a much more complex tale that is both true and presents challenging ethical and legal dilemmas.

While I am inclined to dispute the definitive manner in which Dr. Greenfield asserts that the trial of Nazi PWs, charged with murdering a couple of their fellow PWs, was a miscarriage of justice, his Op-Ed (and, presumably, book) raise interesting questions about the application of military law, in Canada, during the Second World War.  His conclusion that the PWs should have been tried by court martial does not necessarily result in a miscarriage of justice.  While the Crown in Canada could have relied upon military law to try the accused, even then, the jurisdiction of civil courts of criminal jurisdiction was concurrent. 

One might be inclined to compare the cases to the trial of Kurt Meyer for war crimes.  Meyer was tried before a court martial, an appropriate tribunal when an enemy combatant is held by a belligerent nation, for the murders of Canadian soldiers at the Abbaye d'Ardenne (Ardenne Abbey).  However, Meyer was tried for war crimes committed, in Europe, before he was captured.

I would also suggest that the 'patriotic motive' advanced by lawyers for the accused was of dubious merit, in 1940s Canada or presently.  The circumstances giving rise to the actions of the accused may have been worthy of consideration as mitigating factors.

Notwithstanding whether one might disagree with some of Dr. Greenfield's conclusions regarding the justness of the civil trial, he offers a well-researched and intriguing examination of a provocative tale in Canadian military history.   

Video no evil

Just the other day, Global Military Justice Reform carried this item about a celebratory lunch gone bad in Spain. Now it's time for wedding videos that have led to potential disciplinary proceedings against the groom and other Army officers in Nigeria. Excerpt:

“Lt E Ali (N/18406) should be charged with Disobedience to Standing Order punishable under Section 57(1) of the AFA CAP A20 LFN: 2004 for contravening Paragraph 11 (g) of the DHQ Policy on the use of Social Media for the FN 2018 by posting his wedding video clips on D$SC Course 25 WhatsApp forum,” the memo reads.

“One EE Ukhabi and 12 others will also face disciplinary action for participating in paying formal hand salute and doing push-ups in honour of the bride during the wedding ceremony of Lt and Mrs E All in violation of Paragraph 46 of the Traditions, Custom and Ethics of the NA 2005.” 

[Lt-Col N.H.] Lomgpoe further said that Ukhabi and some officers mentioned earlier will be punished for appearing in “NA No 1 Dress without ceremonial jacket.”

This, the military said, contravened paragraph 38 of the NA Dress Regulation of 2005.

For your reading list

Douglas M. Peers, Discipline and Publish: Order, Identity, and Honour in the Practice of Military Law in the [East India] Company Era, 1820-60, in Warfare and Society in British India, 1757-1947 (Routledge 2022).

Speak no evil

It was supposed to be a big celebratory lunch for a Spanish judge advocate colonel who was being transferred to the reserves, but it has turned into a years-long (and continuing) legal battle because the honoree used the occasion as an opportunity to criticize the Ministry of Defense for not appointing the honoree to a particular important prosecutorial position. Was the action arbitrary? Was the Undersecretary of Defense disqualified? Was the officer's right to free speech violated? The case is now before the Military Chamber of the Supreme Court a second time. El Confidencial Digital has the story here [use Google Translate if you do not read Spanish].

Military courts and repression

Military justice is a powerful, yet often overlooked, instrument of repression and impunity for human rights abuses. Supporters of democracy and human rights should strongly challenge any expansion of military judicial power.

From Why Have Military Courts Become Such a Popular Tool of Repression?, by Brett J. Kyle and Andrew G. Reiter

Cases decided by CAAF on full opinion, October 2022 Term

Since its current Term of Court began on October 1, 2022, the U.S. Court of Appeals for the Armed Forces has decided one case on full opinion.  

Watch for changes in the Wisconsin Code of Military Justice

Wisconsin's legislature is working on bills to update the state's Code of Military Justice, which governs personnel of the Wisconsin National Guard and Air National Guard. From this Urban Milwaukee article by Christina Lieffring:

The draft bills were presented to the committee on Nov. 17. The bulk of the bills address discrepancies between the Wisconsin Code of Military Justice (WCMJ) used by the Wisconsin National Guard and the Uniform Code of Military Justice (UCMJ) which is used by all national uniformed military branches, some of which have made it more difficult for sexual assault victims to receive justice under Wisconsin’s code.

For example, under the Wisconsin code, “wrongful sexual contact” is not an offense unto itself, and would need to be coupled with another charge for prosecution. The national, uniform code used to be the same but was updated in 2017. Several of the draft bills would update Wisconsin’s military code to bring it into alignment with the national code.

Other bills would require the Department of Military Affairs to inform the Legislature about substantial changes to the national military criminal codes, so the Legislature could make updates to Wisconsin code as needed; prohibit certain behaviors from officials in positions of power over trainees and recruits; update legislation on retaliation for reporting sexual assault and sexual harassment; lay out pre-trial, trial, and post-trial procedures, and more.

Will Taiwan reinstate peacetime courts-martial?

A recent espionage case involving a colonel has generated debate in Taiwan as to whether the hasty decision to end peacetime courts-martial should be revisited. Details here. Excerpt:

Previously asked by Kuomintang Legislator Wu Sz-Huai (吳斯懷) about his view on restoring military trials during peacetime on Nov. 9, Defense Minister Chiu Kuo-cheng (邱國正) said he "personally agreed" with the idea but said it was for lawmakers to decide.

According to the Ministry of National Defense (MND), out of 32 crimes committed by active duty military personnel that were brought to trial over the past five years, 90 percent of them did not result in convictions by civilian courts.

This has led to a decline in discipline, morale, and the leadership ability of Taiwan's military officers, according to Wu.