Thursday, September 29, 2022

Espionage charged

How about a little espionage for lunch today, and to make it more interesting, allegedly by someone in Army green? An Army major at Ft Bragg was just indicted (along with his civilian wife, both doctors) on eight criminal counts involving attempting to pass on federally protected medical information dealing with Ft Bragg patients to someone they thought worked at the Russian Embassy (actually an FBI undercover agent). Furthermore, they allegedly tried to share "information about U.S. medical capabilities in war conditions" to the Russians. 

Note the forum:  the Army could have initiated court-martial proceedings against the Army major, given his military status and the expansiveness of the military penal code. But efficiency supports utilizing the Article III federal forum for both (given the two defendants, one civilian). And frankly, so does merit and professionalism of the systems -- it is smart to go with the DOJ A-team regarding accountability for these serious allegations, and leave the dysfunctional military justice system to continue trying to fix its racially disparate prosecutions and improve its bungling of sexual assault and other cases.

New judges named to New Zealand's CMAC

Three new judges have been named to the Court Martial Appeal Court of New Zealand. Details here.

Wednesday, September 28, 2022

Nearing the End o' Term

The October 2021 Term of Court at the U.S. Court of Appeals for the Armed Forces ends at midnight, Friday, September 30, 2022. Thus far, the court has handed down decisions in only 25 cases decided on full opinion. All argued cases have been decided, according to the data on the court's website. It is possible -- but highly unlikely -- that one or more additional cases arising on motion, petition for extraordinary writ, or writ-appeal petition will be the subject of a published opinion in the next two days, but the Term is almost certainly a done deal.

This year's tally equals the record low set two Terms ago. Over the last decade, the number of cases decided on full opinion hit a high of 41 in the October 2016 Term.

As of today, the court has incurred obligations of $13,067,417, with $3,496,723 of available funding still unobligated, according to government data. Leaving aside the petition and other dockets, which of course account for a portion of the court's resources, this comes to $522,696.68 per case.

With the end of the Term, the court will have been operating for 14 months with only four full-time judges due to the Senate's continuing inexcusable failure to act on the nomination of Senior Judge Scott W. Stucky's successor, Col. (ret) M. Tia Johnson. During that time, the court has called upon its numerous senior judges to fill out the bench for cases in which discretionary review has been granted, but it has not called upon them to function on whether to grant review, a failure that disadvantages petitioners. Denial of a petition for grant of review precludes access to the Supreme Court of the United States.

Transparency and the Bonhomme Richard court-martial

ProPublica has sued for records from the ongoing general court-martial arising from the fire aboard the aircraft carrier USS Bonhomme Richard. The news organization's complaint seeks a temporary restraining order and other relief. The case was filed in the U.S. District Court for the Southern District of California. Details here.

Tuesday, September 27, 2022

Ethiopia's military courts

From this report on Ethiopia by Human Rights Watch:

Military court system – concerns about transparency and due process

The Ethiopian government’s reliance on the military court system to try serious violations committed by Ethiopian military forces continue to lack transparency and raise concerns about due process and justice and redress for victims and survivors of heinous crimes.

In May 2021, the Office of the Attorney General released its findings of its investigation into allegations of atrocities committed by Ethiopian and Eritrean forces in Axum. The investigation ignored the role of Ethiopian forces in extrajudicial executions and pillage of civilian infrastructure and property, as well as the horrific massacre of hundreds of civilians by Eritrean forces in the course of 24 hours.

On May 21, 2021, after public pressure, the Attorney General's office released a summary of efforts taken so far by Ethiopian authorities towards accountability. It stated that Eritrean forces killed over 100 civilians in Axum and that the military court system had brought charges against 28 Ethiopian soldiers accused of extrajudicial executions, and 25 Ethiopian soldiers accused of committing acts of sexual violence and had sentenced 4. Transparency around these trials and convictions, including the role and rank of these forces, whether any senior officers or authorities exercising command responsibility were held to account, and the areas in which the soldiers are accused or found responsible for carrying out these crimes are still unclear. The joint OHCHR/EHRC report also raised concerns that the “investigations conducted by Ethiopian national institutions do not match the scope and breadth of violations it has identified ...nor that those investigations which are being undertaken sufficiently comply with international standards, including with respect to transparency” (para. 376). The report further raised concerns that “national institutions may not be sufficiently addressing matters of command responsibility for the violations they are investigating” (para. 376).

In September, the government acknowledged that an investigative team established by the Ministry of Defence found 60 incidents of crimes involving extrajudicial killing and sexual violence that had been submitted to the military courts. As of August 2022, the military courts handed down 25 convictions and 2 acquittals. However, no information was made public on the rank of Ethiopian federal force personnel involved, locations where incidents occurred, how abuses implicating regional forces have been investigated, or clarity on access to proceedings by survivors or family members.

Monday, September 26, 2022

Should military accused appear in uniform before civil courts?

 

Ottawa, Canada.  The Canadian Broadcasting Corporation (CBC) are reporting on the case of Major-General Dany Fortin, Canadian Army, who stands accused of an sexual assault  which allegedly took place at the Royal Military College [RMC] in 1988. Fortin pleaded 'not guilty' during his appearance before a a civilian court, this past week.  

This is the result of a decision made last year by the incoming Defence Minister, the Honorable Anita Anand, who in response to the successive recommendations of two retired Supreme Court of Canada justices recommending that jurisdiction for the investigation and prosecution of 'sexual assaults' now be moved to civilian courts. In 2021, both the Honorable Morris Fish and the Honorable Louise Arbour separately conducted an external independent review of the Canadian military justice system and recommended that jurisdiction for sexual assault be transferred to civilian jurisdiction. [A change which has been long argued by the writer of this post.]

 Last week, MGen Fortin appeared in civil court in full dress uniform which includes medals. This  created a controversy on the part of sexual trauma advocates and commentators who argued that the "act of wearing the full uniform to court while on court on trial is power play that intimidates complainants and triggers victims." Other argued that the uniform: "is a powerful symbol of the institution and wearing it could make a complainant feel like they're facing off against the entire Canadian Forces."  In response, the Department of National Defence [DND] has announced that it will review the matter and decide whether members accused of crimes should wear uniforms in civilian courts. 

For the sake of transparency, I also need to note that I have separately commented this issue to the CBC over the week-end. Given that the military uniform is, in many respects, a visible sign of authority issued by the national State, unless the military member appearing in a civilian court  [of civil or criminal jurisdiction] is acting in an official capacity (i.e. as a witness), he or she should not wear the uniform. To act otherwise, may suggests that the military member is endorsed or otherwise supported by his parent organization in the instant action.

Friday, September 23, 2022

GAO report on servicemember absences

The Government Accountability Office (GAO) has issued this report on absences of military personnel. from the agency's summary:

What GAO Found

The military services have collected and reported required data on involuntary absences, but the extent of voluntary absences is unknown. Involuntary absences are unintentional and can result from foul play or an accident, while voluntary absences are intentional and include desertions and unauthorized absences. GAO found that the services reported 157 servicemembers as involuntarily absent from fiscal years 2017 through 2021. The services also collected some data on voluntary absences during that time. However, the full extent of voluntary absences is unknown because some data were not complete or reliable. Moreover, the services did not regularly report such data to the Department of Defense (DOD). Providing data collection guidance and establishing a reporting process will better enable DOD to monitor the number of voluntary absences and assess efforts to deter and reduce them.

The services have established procedures for key personnel that address some, but not all, of their responsibilities for responding to absences. For example, all four services have established procedures for unit commanders to report absences to appropriate organizations (see figure) [omitted]. However, the Marine Corps has not established procedures to assist unit commanders in determining whether an absence is involuntary or voluntary. Additionally, the Air Force does not have procedures for investigating all types of absences. By establishing such procedures, the Marine Corps and Air Force will have greater assurance that absences will be properly identified and investigated.

During fiscal years 2017 through 2021, the Army, Navy, and Air Force military criminal investigative organizations met some staffing goals and identified some staffing needs for special agents who investigate servicemember absences. GAO found that the Army and Navy met or nearly met goals for filling authorized special agent positions, while the Air Force filled, on average, about 83 percent of its positions, falling short of its 100-percent goal. Also, although the Air Force identified staffing needs for special agents, the Army did not identify the number of special agents needed to fully address workload needs and the Navy could not identify the specific number of special agents needed separate from other investigative positions. Establishing processes to identify Army and Navy special agent needs and developing a strategy to meet the Air Force staffing goal will better position these services to ensure they have sufficient numbers of agents.

Thursday, September 22, 2022

R v Officer Cadet Kenderesi

At a court martial convened at Canadian Forces Base Borden (in Ontario), Officer Cadet (OCdt) Laszlo Kenderesi pled guilty to a charge of  "conduct to the prejudice of good order and discipline", contrary to section 129 of the National Defence Act (NDA) and not guilty to Scandalous Conduct by an Officer, contrary to section 92 of the NDA

The military prosecutor withdrew that charge of Endeavouring to Persuade Another Person to Munity, contrary to section 81 of the NDA.

It appears that the military prosecutor did not present evidence in relation to the charge of Scandalous Conduct by an Officer.  It is reported that the prosecutor and defence counsel offered a joint submission on sentence of a severe reprimand and a $ 4,200.00 fine.  Unless the Military Judge concludes that such a sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, then, consistent with the Supreme Court of Canada judgment in R v Anthony‑Cook, 2016 SCC 43, the military judge would not have grounds to reject the joint submission.

Had OCdt Kenderesi been found guilty of Scandalous Conduct by an Officer, absent an absolute discharge (which would have been highly unlikely in the circumstances), the Military Judge would have been obliged to sentence him to either Dismissal or Dismissal with Disgrace, from His Majesty's Service.

Wednesday, September 21, 2022

Transparency

Hon. Caroline D. Krass
Long out-paced by PACER, the military justice system typically hides behind the Privacy Act when the media come calling for access to court-martial documents in pending cases. The National Institute of Military Justice has joined the fray with this letter to Caroline D. Krass, General Counsel of the Department of Defense.

Pretrial confinement

Will ProPublica's recent investigation of military pretrial confinement decision making lead to regulatory changes? A Member of Congress has called for change, and the Pentagon says the rules are under study.

Friday, September 16, 2022

Reading list

For a treatment of Brazilian and Mexican military courts, see § 5.1.1 of Anaís Medeiros Passos, Democracies at War Against Drugs: The Military Mystique in Brazil and Mexico 162-64 (Palgrave MacMillan 2022).

Gendarme sentenced in Lille

The military chamber of the Lille court has convicted a Ukrainian-born French gendarme who went back to Ukraine to fight the Russians. The court ordered him discharged and gave him a suspended sentence of two months' confinement. Details here en français. Excerpt:

In his remarks, the president of the military chamber of the Lille court pointed out that “we can be sensitive to the strength of your commitment, the courage that you needed. You put your ideas at the service of a cause. A perception that undoubtedly made it possible to avoid the maximum sentence of five years in prison. However, in addition to the radiation, a two-month suspended sentence was pronounced. The president had indeed told the future ex-gendarme that "you went to fight for a foreign power", while "you are an active French soldier".

Thursday, September 15, 2022

Not military justice, but . . .

Anthem Press has just published Military Memories: Draft-Era Veterans Recall Their Service (2022), edited by Donald Zillman. Publisher's description:

Eight American military veterans of the Vietnam/Cold War era describe their service and its influence on their lives. Their service is shaped by the history of America's raising of its military forces with particular emphasis on the use of mandatory military service (the draft, Selective Service) in 1917–18 and 1940–73. The final chapter provides the authors' reflections on the challenges facing the American military in the third decade of the twenty-first century and the possibility of a return to drafted military service after a half century of an All-Volunteer Force.

Full disclosure: the Editor is one of the contributors.

Military justice in Ukraine (and elsewhere)

The Vienna-based European Law Institute's Access to Justice in Eastern Europe has posted Oksana Kaplina, Serhii Kravtsov & Olena Leyba, Military Justice in Ukraine: Renaissance During Wartime (Aug. 15, 2022), and Andrii Niebytov, Valeriy Matviychuk, Oleksandr Mykytchyk & Oksana Slavna, Military Justice of Ukraine: Problems of Determining the Bodies that Govern the Construction of its System (Aug, 15, 2022). These are among the worthwhile articles in the AJEE Journal's Issue 3/2022.

Transparency and military justice

The Reporters Committee for Freedom of the Press, ProPublica, and 38 media organizations have sent this letter to Caroline D. Krass, General Counsel of the Department of Defense, concerning timely access to court-martial records. They argue that "[t]he Armed Services must implement Art. 140a [of the Uniform Code of Military Justice] in a manner consistent with congressional intent and the public’s First Amendment and common law rights of access to military court records."

ProPublica has posted this story about the letter and its context. Excerpt:
In the Mays case, explained in the ProPublica article “The Navy Is Withholding Court Records in a High-Profile Ship Fire Case,” a sailor was accused of aggravated arson and hazarding a vehicle in the 2020 fire that destroyed the USS Bonhomme Richard. But the Navy and a military judge have refused to release records in the case, citing Article 140a of the Uniform Code of Military Justice as well as a memo issued by the former DOD general counsel and Navy instructions interpreting that guidance.

The media organizations argue that the Navy has misinterpreted Article 140a, noting that Congress adopted it in 2016 to promote transparency in the military courts and to enhance public access to court records and docket information at every stage of court-martial proceedings. The article points to well-settled guidance that court-martial proceedings must resemble a criminal trial in federal district court as much as possible. The media coalition notes that access to these records is also required by the First Amendment and common law rights of public access to court proceedings and records. The media organizations are asking Krass to make clear that the court records in the Mays case must be released immediately and any future filings be released contemporaneously.

Tuesday, September 13, 2022

Death penalty abolition proposed for Chilean military justice

The Chilean Chamber of Deputies has approved a bill that would abolish the military death penalty. Details here (use Google Translate).

Annals of military law practice

What's it like representing Russian soldiers during the Russo-Ukrainian War? Consider this article from Radio Free Europe/Radio Liberty. Excerpt:

"The number of requests has increased. A lot of legal-service agreements have been concluded. Now I receive about 20 to 30 messages a day, of which about five to 10 go into consultations. We conclude a legal-service agreement once or twice a day. This is not counting consultations and simple correspondence. There is also a lot of such communication. If the issue is simple, I try to consult for free, if possible," he says.

Complaints about compensation for injuries not being paid are now the most common.

"I tell the military member: You have a difficult case. There are no medical documents. Let's go to court, and through the court and medical examination let's prove that there was some kind of diagnosis, [that] the injury was from the 'special operation,'" [Maksim] Grebenyuk says. "Now there are a lot more military personnel and their families with such complaints."

Saturday, September 10, 2022

RAND Corp. report on COVID-19 and courts-martial

RAND Corp. has issued a report titled Justice Must Go On: The Effects of the COVID-19 Pandemic on Military Court Operations. Excerpt:

The coronavirus disease 2019 (COVID-19) pandemic, however, presented new challenges for administering military justice. Personnel entrusted to oversee military courts had to quickly expand use of courtroom technology for remote proceedings and vigorously enforce public health guidance in courtrooms during in-person proceedings. When civilian courts made similar adjustments (e.g., Baldwin, Eassey, and Brooke, 2020), the transition period was described as “kind of a mess” (Thomsen, 2020). The dynamic nature of the pandemic forced both military and civilian courts to innovate quickly for the sake of keeping justice moving forward. Although the military and civilian justice systems faced similar challenges stemming from changes owing to the pandemic, the effect of the pandemic on military courts has not received as much scholarly and popular attention. This Perspective provides a preliminary examination of how the pandemic affected caseloads in the military justice system and how the military justice system adapted its operations during this time. The paper also offers several recommendations for future directions.

Military personnel in Mexico's National Guard--a cautionary note from the Inter-American Commission on Human Rights

Finally, concerning the accountability system and moves to ensure that military officers who disregard military hierarchies and authority while on National Guard duty will remain subject to military courts, the IACHR calls on the Mexican State to ensure that the competence of military courts remains exceptional. As noted by the Inter-American Court in various decisions and resolutions concerning Mexico, when an officer of the Armed Forces commits an offense that might amount to a human rights violation, their actions need to be judged by civilian courts.

From this September 9, 2022 press release from the Inter-American Commission on Human Rights

Navy SEALs training investigation

Dave Philipps of The New York Times reports here on the appointment of a U.S. Navy rear admiral to investigate the SEALs program's arduous training program. The report is due 30 days from the appointment. Is that time sufficient? Might it have been preferable to appoint a multimember Court of Inquiry? How independent will the investigating officer be, coming from inside the Navy, albeit from a different part?

Thursday, September 8, 2022

Her Majesty Queen Elizabeth II has died

 


The Second Elizabethan Age has come to an end.  Long did she reign.  For those of us who bore Her Commission and served in Her Majesty's Armed Forces (and those who still serve), it was our privilege to try to emulate her devotion to duty and service.

And, with the indulgence of our American (and other republican) colleagues: God save the King.

Media access to trial records

ProPublica has this report on the U.S. Navy's refusal to release court-martial records in the USS Bonhomme Richard case. Excerpt:

ProPublica Deputy General Counsel Sarah Matthews said the news organization disagreed with [military judge Derek] Butler’s interpretation of the law and would next ask the top lawyer for the Department of Defense, Caroline Krass, to clarify what the law requires the services do.

Monday, September 5, 2022

Art v. History: Raising Caine

Herman Wouk
1915-2019
Friend o' blog and drama maven Dwight ("Usual Disclaimer") Sullivan has lobbed the following over the Culture Desk transom in the glass-enclosed newsroom high above Global Military Justice Reform Plaza:

    Remaking a classic work of art can be a fraught exercise.  But if done well, the results can be exceptional, as Aaron Sorkin’s brilliant reinterpretation of To Kill a Mockingbird recently demonstrated.  Another remake of a classic legal tale is underway:  The Caine Mutiny Court-Martial.

The Caine Mutiny was a Pulitzer Prize-winning novel by Herman Wouk before he adapted it for the stage under the title The Caine Mutiny Court-Martial.  After debuting in Santa Barbara in 1953, it opened on Broadway in 1954, with Henry Fonda playing the defense counsel.  A later revival featured Joe Namath as USS Caine’s executive officer and accused mutineer LT Stephen Maryk—a role later played by Jeff Daniels in a 1988 made-for-TV adaptation of the play.  The most familiar version of the story is the 1954 film featuring Humphrey Bogart in the role of LCDR Philip Francis QueegCaine’s erratic captain.

The Caine Mutiny Court-Martial will now be revived as a film directed by Oscar-winner William Friedkin of The French Connection, The Exorcist, and To Live and Die in L.A. fame.  https://deadline.com/2022/08/william-friedkin-kiefer-sutherland-the-caine-mutiny-court-martial-showtime-herman-wouk-1235101967/.  Kiefer Sutherland will play Queeg.  Filming is set to start in January 2023.  Friedkin reworked Wouk’s script, shifting the story from its original World War II context to an incident in the Straits of Hormuz.

Let’s hope Friedkin hires a good technical advisor.  His discussion of the project included this ahistorical exegesis:  

“There never was a mutiny in the United States Navy,” Friedkin said. “Herman Wouk virtually created the first and only mutiny in the United States military.  His dialogue is terrific, right to the point.  It’s set at a trial, but it’s all really by the book, in terms of accuracy.  But there never was a mutiny in the United States military.  He invented it and all that would take place around it, based on the laws that cover it.”

Friedkin’s historical perspective may have been influenced by a text box that appeared at the opening of the 1954 film.  It stated:  

“There has never been a mutiny in a ship of the United States Navy.  The truths of this film lie not in its incidents but in the way a few men met the crisis of their lives.”

Let’s unpack those claims.  To be precise, the 1954 text should have read, “There has never been a successful mutiny in a ship of the United States Navy”—with the word “ship” doing some heavy lifting.  A mutiny likely occurred aboard one of USS Warren’s boats in 1846.  While transporting money and supplies from the ship to Sutter’s Fort on Sacramento Bay, nine sailors allegedly killed three officers—two of whom were sons of Warren’s captain—and threw their bodies overboard.  8 NAVAL HISTORICAL CENTER, DICTIONARY OF AMERICAN FIGHTING SHIPS 107 (1981); GENE A. SMITH, THOMAS AP CATESBY JONES:  COMMANDER OF MANIFEST DESTINY 133 (2000); LEONARD F. GUTTRIDGE, MUTINY: A HISTORY OF NAVAL INSURRECTION 116 (1992).  In 1849, a mutiny occurred aboard USS Ewing’s gig in San Francisco Bay.  After taking visitors ashore, five sailors in the gig threw Passed Midshipman William Gibson overboard and rowed toward California’s goldfields.  Erwin G. Gudde, Mutiny on the Ewing, 30 CAL. HISTOR. SOC’Y Q. 39-47 (1951).  Even though he was a strong swimmer, Gibson almost drowned as his saturated clothes weighed him down.  Id. at 41.  As he was boarding his own ship, the master of an English merchantman lying at anchor nearby happened to see Gibson in the water and dragged him to safety.  Id. at 42.  The five mutinous sailors were captured, convicted by court-martial, and sentenced to be hanged.  Id. at 43.  The Commander-in-Chief of U.S. Naval Forces Pacific commuted three of the death sentences, ordering instead that the sailors “receive one hundred lashes on the bare back, serve out the remainder of their term of enlistment without pay, and with a ball and chain on the leg, in solitary confinement, or at hard labor, or alternately both, at such navy yard or other place or places as the Secretary of the Navy may direct.”  Id. at 44.  The remaining two mutineers were hanged on October 23, 1849.  Id. at 45.  The Department of the Navy has not executed one of its members since.  

Seven years before the Ewing gig mutiny, an alleged mutiny occurred aboard USS Somers, leading to the execution of two sailors and a midshipman who happened to be the son of the Secretary of War.  See generally Guttridge, supra, at 93-116.  The resulting brouhaha led to the United States Naval Academy’s establishment in 1845.  Id. at 116. 

So Friedkin was clearly wrong when he declared that “[t]here never was a mutiny in the United States Navy.”  He was even more incorrect when her proclaimed that “there never was a mutiny in the United States military.”  As Col. Winthrop makes clear, there have been quite a few mutinies in the U.S. Army.  Among many other examples, Winthrop cited “the case, published in G. O. 15, Dept. of the Mo., 1864, of certain officers dismissed for mutiny in unlawfully arresting and dispossessing of his command the commander of the post”—an action somewhat similar to that of LT Maryk in The Caine Mutiny.  WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 580 n.51 (2d ed. 1920).  Winthrop also offered examples of Army mutinies in which officers or NCOs were either killed or wounded.  Id. at 580 n.55, 584 n.80.

During the 70+ years of the UCMJ era, there have been mutiny convictions, some resulting from a 2010 inmate revolt in the United States Disciplinary Barracks’ Special Housing Unit.  E.g., United States v. Lewis, No. ARMY 20111166, 2014 CCA LEXIS 26, 2014 WL 278398 (A. Ct. Crim. App. Jan. 24, 2014); United States v. Savage, 72 M.J. 560 (A. Ct. Crim. App. 2013).  In the memorable case of the striking Louisiana National Guard soldiers, Chief Judge Walter T. Cox III observed, “Appellant and his confederates clearly, deliberately, and collectively set about to disobey the orders of their superiors and to organize a mutiny against the command and its mission,” while noting that the government “chose a less sensational and onerous charge upon which to prosecute appellant for his misconduct.”  United States v. Brown, 45 M.J. 389, 399 (Cox, C.J., concurring).

Brown brings us full circle.  In his dissent, Judge Eugene R. Sullivan quoted Herman Wouk’s The Caine Mutiny.  Id. at 401 (Sullivan, J., dissenting).  Whether Friedkin’s reworked screenplay will ever merit such an honor remains to be seen. Meanwhile make ready the popcorn, but keep Winthrop handy.

A deal falls apart; where should the case be tried?

A lieutenant colonel in the IDF is facing trial for secretly filming numerous female soldiers. A generous pretrial agreement fell apart when victims objected, and a new deal has been struck that is tougher on the accused. His lawyers now say he should be tried in a civilian court. Details here.

Sunday, September 4, 2022

Labor Day 2022

 

Mandatory vaccination: issue to be decided in Italy's courts

Elisabetta Barbadoro writes here about the constitutional issues arising from Italy's mandatory vaccination program as applied to the armed forces. Excerpt (with an assist from Google Translate):

The legal question, in short, is more or less always the same, with the necessary variations, and concerns the balance between the inalienable rights of individuals and the protection of public health. If on the one hand the Constitution admits the possibility of establishing by law the obligation of medical treatment, we must ask ourselves whether this obligation, in particular, is useful in protecting public health and whether it is respectful of health and human dignity. On this, science, with the latest publications, seems to suggest some answers, between the lines of recent evidence on efficacy and safety of anti-Covid19 serums. But the final word will be up to the judges of the Constitutional Court.

RAF chief told to fix ‘rigged’ Court Martial system

The Express (UK) tells us that the RAF chief told to fix ‘rigged’ Court Martial system after ‘incredibly serious’ allegations.



RAF chief Sir Mike Wigston has been told he must fix its "rigged" court martial system - with a legal expert claiming incidences of incident (sic) exposure, assault, intimidation and even rape were frequently going unpunished.

However, a Ministry of Defence spokesman stressed there was no place for sexual assault or harassment within the armed forces - and pointed out the conviction for rape within the Service Justice System was four times lower than that of the civilian system. Kate Roos, Senior Solicitor in the Military Claims Team at Bolt Burdon Kemp, was speaking after whistleblowers complained of a bullying environment within the Red Arrows, which had led to three leaving the team.
. . .
[V]iewed as a proportion of allegations reported, rather than of cases prosecuted, the conviction rate in the Service Justice System is around eight percent compared to around two percent in the civilian system.

Thursday, September 1, 2022

Mercenaries and private military and security companies

The UN's Working Group on the Use of Mercenaries has issued a report that makes a host of recommendations for, among other things, achieving accountability for misconduct by mercenaries and personnel of private military and security companies.

Where should this case have been tried?

The drug case of Joseph Schooling, a famous swimmer in Singapore, has raised questions. The Straits Times has this report. 

Should he have been tried in civilian court? Did he get a sweet deal because of his athletic prowess?

Reported sexual assaults rose 13% in 2021

Helene Cooper has the story here in The New York Times. The latest report is to be released today.

Monday, August 29, 2022

Not military justice, but . . .

 Just Security has posted this excellent essay by George Croner: A Damage Assessment of Trump’s “Declassification Defense.” Required reading for anyone dealing with classified information. Excerpt:

In this article, I focus on a specific aspect related to the national security risks from the disclosure of such documents. I address on its own terms Trump and his allies’ claim that, while president, he issued either a general or standing declassification order that covered these documents. If that is to be the defense on which the former president relies in the court of public opinion or in a court of law, we should understand the national security implications that would flow from such a presidential decision. It should be shocking to the American public and to jurors in a courtroom to hear such a line of defense to allegations of mishandling national defense information. That justifiable shock can come, however, only if people comprehend the grievous harms to national security from any such order.

Saturday, August 27, 2022

R v MacPherson, 2022 CMAC 8: retrospective application of jurisdiction of the Code of Service Discipline

On 23 August 2022, the Court Martial Appeal Court of Canada (CMAC) handed down its judgment in R v MacPherson, 2022 CMAC 8, upholding the judgment at first instance by Military Judge, Commander (Cdr) S. Sukstorf: R v MWO MacPherson, 2021 CM 2014

The outcome of the judgment was not particularly surprising.  On 8 September 2021, Cdr Sukstorf terminated the court martial convened to try Master Warrant Officer (MWO) MacPherson on two counts of sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline by virtue of para 130(1)(a) of the National Defence Act (NDA).  Although MWO MacPherson had been charged under the Code of Service Discipline in 2019, and the charges were preferred for court martial on 10 December 2019, the allegations dated from a period of time between August and October 1998.

Those dates were significant.  By virtue of section 70 of the NDA that was in force at that time, charges of sexual assault, alleged to have occurred within Canada, could not be prosecuted before court martial.  By virtue of significant amendments to the Code of Service Discipline introduced by Bill C-25 (An Act to Amend the National Defence Act), section 70 of the NDA was amended to remove the prohibition against prosecution, before court martial, of sexual assault, sexual assault with a weapon, and aggravated sexual assault.  These amendments were driven by public opinion in the 1990s that this lack of jurisdiction for the Code of Service Discipline hampered its capacity to maintain the discipline, efficiency, and morale of the Canadian Forces (CF).  These amendments came into force on 1 September 1999.  That factor can be contrasted with recent opinions that such charges should not be prosecuted within the 'military justice system'.

Section 70 of the NDA lists (and listed) offences that, when alleged to have been committed in Canada, cannot be tried by court martial.  [NB: The offences that were, and are, listed at section 70 cannot be tried by Summary Trial.]  The issue at trial in MacPherson was whether the amendments to section 70 of the NDA had retrospective application.  In other words, once the amendment came into force on 1 September 1999, was there jurisdiction under the Code of Service Discipline where charges were laid on or after this date, even if they were alleged to have occurred prior to that date.  The provision refers to the jurisdiction of courts martial to try the listed offences; it does (and did) not speak to the general jurisdiction of the Code of Service Discipline.

In order for a provision to have retrospective application, there must be a clear expression from Parliament as to its intention regarding the legislative amendments in question with respect to transitional provisions: R v Dineley, 2012 SCC 58.  The issue for Cdr Sukstorf was whether the legislative amendments to the NDA communicated such clear intent.  In her judgment, she offered compelling reasons why Parliament did not provide such clear expression of intent.

The CMAC concluded that Cdr Sukstorf was correct:

... There is no clear Parliamentary intent that the amendment to s. 70 of the NDA is to have retrospective effect. Furthermore, the amendment affects substantive rights of accused and convicted persons. Those include a right to be tried by jury and the right not to be subjected to more severe punishment than was available at the time of the alleged offence. Consequently, the amendment to s. 70 does not apply retrospectively. [per Bell CJ, at para 43, for a unanimous Court]

In light of Cdr Sukstorf's comprehensive and compelling reasons at trial, this outcome was not surprising.  One might be inclined to observe that this CMAC judgment is noteworthy because it decisively concludes that "Service tribunals do not have jurisdiction to try sexual assault offences alleged to have occurred in Canada prior to September 1, 1999."  While this is true, it is noteworthy for several other reasons, including:

1.  At first instance, Cdr Sukstorf considered the issue on the Court's own motion.
2.  The matter had been referred to a civil Crown Attorney, who declined to proceed.
3.  In its judgment, the CMAC offers some critical comments regarding the fairness of service tribunals.

Wednesday, August 24, 2022

Conscientious objection in South Korea -- still an issue

Despite a Constitutional Court decision finding a right to conscientious objection, a South Korean Jehovah's Witness is facing trial. He objects to the fact that alternative service -- now permitted -- lasts too long and must be performed in a prison or other correctional institution. Details here. Amnesty International is on the case.

Saturday, August 20, 2022

A duty to disobey?

Doyle Hodges examines this question in a detailed response to a recent New Yorker article by Susan B. Glasser and Peter Baker about General Mark A. Milley's actions in the waning weeks of the Trump administration. See what you think (and read the New Yorker piece before making up your mind).

Jurisdictional overreach in Pakistan?

 A recent report in the Express Tribune of Pakistan raises questions about the potential for jurisdictional overreach under the military law of Pakistan. The issue arises in the context of an allegation that Shahbaz Gill, leader of opposition political party Pakistan Tehreek-e-Insaf, has incited mutiny in the Pakistani army. A member of the Prime Minister’s office has suggested that Mr Gill should be tried by court-martial for this offence. In this post I examine whether that is a serious prospect under Pakistani military law and, if so, what international law would have to say on the matter.

Under section 31 of the Pakistan Army Act 1952, it is an offence for “any person subject to this Act” to, inter alia, incite mutiny in the military forces of Pakistan, or attempt to seduce a member of those forces from his or her duty or allegiance to the Government of Pakistan. Pakistan is a state which, like many members of the Commonwealth, has derived its military law from a British root. In most such states, the limitation of jurisdiction to “any person subject to this Act” would put an end to any speculation as to whether Mr Gill could be tried by court-martial. He is not a member of the Pakistani armed forces and nor does it appear that he has any particular connection with those forces. Ordinarily, that would mean that he would not be subject to the Act. However, the jurisdictional provision which defines who is subject to the Pakistan Army Act (section 2) has been successively amended since the mid-1960s until as late as 2017, to expand the jurisdictional ambit of the Act to quite a surprising degree. Certain persons considered to be terrorists are subject to the Act (section 2(d)(iii) and (iv)) as well as anyone, not otherwise subject to the Act, who is accused of “seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government” (section 2(d)(i)).

In the article in the Express Tribune, Colonel Inamul Rahiem, a retired officer of Pakistan’s Judge Advocate General’s branch indicates that jurisdiction over a civilian cannot in fact be exercised in these circumstances consistently with the Constitution of Pakistan, and that there is Supreme Court authority to that effect. It would be surprising if that were not so, given Pakistan’s ratification of the International Covenant on Civil and Political Rights (ICCPR) in 2010.

The question of how the ICCPR and other international norms impact on the exercise of military jurisdiction is canvassed in the Principles Governing the Administration of Justice Through Military Tribunals, a soft law instrument which has evolved over the last 20 years under the auspices of the United Nations; the most recent consideration of the principles being a re-draft prepared at Yale University in 2018 by a group of experts including myself and a number of other contributors to this blog. The issue we are looking at here is dealt with in Principle 6:

“Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial.  Those circumstances only exist, where:

(a)         Such a trial is explicitly permitted or required by international humanitarian law;

(b)         The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or

(c)          The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b).”

This principle reflects the axiom that, in ordinary circumstances, only military personnel should be subject to military law. However, it also recognises that there are some very limited exceptions in which the application of military law to a civilian would be compatible with international norms. The exceptions permit a compatible reading of States Parties’ obligations under the ICCPR on the one hand, and the Geneva Conventions on the other. However, none of the exceptions appear to apply in the case of Mr Gill. It must be observed that any attempt to use military law as hammer to crack the “nut” of political opposition cannot fail to bring both the military jurisdiction and the State itself into disrepute.

I suggest that it might be timely for the Government of Pakistan to address the apparent incompatibility between section 2 of the Pakistan Army Act 1952, the Constitution of Pakistan and Pakistan’s international obligations.

Monday, August 15, 2022

"Milicogate"

On March 2, 2022, General Ricardo Martinez announced his resignation as Commander in Chief of the Chilean Army because he was accused of crimes of corruption within the Army.  The announcement came a week before his successor, Javier Iturriaga, was to become the new Commander in Chief to serve for four years beginning March 9, 2022.  Martinez is the fourth Commander in Chief, of six, following Augusto Pinochet, to be accused of corruption, following Oscar Izurieta (2006-2010), Juan Miguel Fuente Alba (2010-2014), and Humberto Oviedo (2014-2018), who all denied the accusations and declared their innocence -- as did General Martinez.  

Martinez was charged with defrauding the military of $44 million and for allegedly using institutional travel funds for his own and his wife's benefit. Judge Romy Rutherford has been investigating the fraud case in the Army since 2011 and she questioned, in particular, eight trips carried out by Martinez while on active duty, during the years 2011-2017; on three of the trips accompanied by his wife.  He was placed in preventive detention for three weeks.  On April 5, 2022, the Military Tribunal dismissed the prosecution against him.

The decision of the Military Tribunal to dismiss Judge Rutherford's prosecution was a divided one of three judges against two.  The majority accepted the defense's argument that the amount of money in the fraud had not been clearly established, that the alleged trips were subject to a statute of limitations and that Martinez had returned some of the money.  Now the Council of the Defense of the State (CDE -- a group of 12 lawyers appointed by the President) will have to decide whether to appeal to the Chilean Supreme Court to overturn the Military Tribunal's decision.

Sunday, August 14, 2022

Captain Kevin J. Barry used to say

"Scratch a case and find an outrage." The Texas Tribune and ProPublica are looking for stories about the military justice system. "We’re looking into how the military investigates service members accused of crimes, intersects with the civilian justice system and treats cases that do not make it to courts-martial. Guide us to important stories." Here's the link to share your story.

Friday, August 12, 2022

Mere dicta, or a warning?

The following discussion appears in the judgment of the Defence Force Discipline Appeal Tribunal of Australia in Kearns v Chief of Army [2022] ADFDAT 3 (Aug. 12, 2022):

119   By a notice dated 9 August 2021, a little over two months after his conviction and punishment by DFM [Defence Force Magistrate], administrative action was taken against the appellant leading ultimately to his administrative discharge on the basis that the retention of his service was not in the interests of the Defence Force. By the time these proceedings were heard by the Tribunal, he was no longer a member of the ADF.

120    On 7 May 2021 the DFM made a considered decision under DFDA, Pt IV that the appellant had continuing value to the ADF and should be retained in service but with a loss of seniority within his existing rank of LTCOL. The transcript of the punishment hearing shows the DFM reached this decision based not only on the circumstances of the convictions and a victim’s impact statement but on extensive examination of the appellant’s service record, officer performance appraisals, character, and a psychological analysis of the appellant’s circumstances.

121    The subsequent administrative decision to terminate his service produced quite a different outcome for the appellant. This Tribunal is not reviewing that decision and its factual basis and the reasons for it are not before this Tribunal. But the appellant has contended in documents before this Tribunal that the termination decision was based upon the same or substantially the same facts as those that led to his two convictions. This Tribunal is not charged with deciding whether that contention is correct or not.

122    But the contention raises a wider question about administrative decisions after DFDA action against a member and the authority of the decisions of superior service tribunals under the DFDA. The apparatus of the Appeals Act provides for public external review of the conviction, but not the punishment, of defence members by superior service tribunals under the DFDA. The public functions of review by this Tribunal under the Appeals Act are one of several statutory safeguards that maintain confidence in the independent administration of justice under the DFDA leading to both conviction and punishment. Another statutory safeguard is the requirement under DFDA, s 140 for superior service tribunals to hold trials in public.

123    This Tribunal’s functions in scrutinising the proper administration of justice leading to conviction by superior service tribunals, give it an interest in matters which may undermine the authority and independence of those tribunals, even matters occurring after conviction. Maintaining public confidence in the convictions of superior service tribunals is not limited to looking at events before conviction.

124    An administrative decision made close in time to a punishment imposed by a service tribunal under the DFDA, but which produces on substantially overlapping facts an outcome which may objectively be described as more severe, may need to be reconciled with the operation of DFDA, s 162.

125    Several provisions of the DFDA prohibit commanders from increasing punishments imposed under the DFDA. Under DFDA, s 68 a commanding officer of a convicted person “may moderate the consequences of” a punishment “imposed” by service tribunal, but has no power to increase the punishment. And upon review of action under DFDA, Pt IV under DFDA, s 162 a conviction may only be quashed under s 162(1) if it is “excessive” or “wrong in law” and once quashed any substitute punishment imposed under s 162(5), “shall not…be more severe” than the punishment imposed by the service tribunal. No power exists in the reviewing authority to quash a conviction on the grounds of insufficiency of punishment.

126    An administrative decision maker considering termination of a defence member after DFDA action on facts substantially overlapping with the DFDA action does not act as a reviewing authority under the DFDA. But such a decision-maker may have to examine real questions of continuing fidelity to the commands of DFDA, s 68 and s 162 and what punishment is being imposed in practice and whether the administrative decision is consistent with the maintenance of good conscience by command.

127    DFDA, s 68 and s 162 reflect well-established principles that military command is bound to observe good conscience in punishing a defence member. The High Court in Lane v Morrison (2009) 239 CLR 230, at [85] (Lane), identified that the central point of the court-martial within military command structures such as the ADF is to inform the conscience of the commanding officer. In Lane, at [85], the High Court cited the following reasoning of Platt J in the Supreme Court of New York in Mills v Martin (1821) 19 Johns 7, at 30, as accurately capturing this aspect of the role of the court-martial within the command system:

The proceedings of the court-martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of the court-martial; and, it is equally clear, that the court could not punish without his order of confirmation.

128    The court-martial informs the conscience of command and command acts on good conscience by confirming or moderating, but not increasing, the punishment fixed by the court-martial. Recognising that a punishment imposed by a service tribunal in relation to a defence member sets the upper limit of post-conviction action binding on the conscience of command for that member provides safeguards for the ADF and for the member.

129    For command, it promotes military cohesion and defence members’ acceptance of discipline decisions by separating command from any perception of personal bias or ill-will in the exercise of discipline. For the member punished, command’s fidelity to good conscience in confirming or moderating punishments confers security and stability and promotes loyalty to the service in that member and in all members who see command observing the precepts of good conscience in punishments.

130    Moreover, as this Tribunal emphasised in Howieson v Chief of Army [2021] ADFAT 1, at [62] (Howieson), an administrative decision to terminate a member’s service where a court-martial has imposed a sentence which gives the member an opportunity for rehabilitation “could be regarded as undermining the court-martial process”. We add the reasoning here to that expressed in Howieson on this subject.

131    If the obligations of good conscience upon command in imposing DFDA punishments recognised in Lane and embedded in DFDA, s 68 and s 162 are ignored post-conviction, leading to the administrative termination of the service of defence members, stigma, loss of morale and confidence in the administration of justice in the ADF may be most acute for those directly affected by the termination but similar effects are likely to be felt more widely. But more broadly, as Howieson emphasises, the authority of DFDA in specialist superior service tribunals seeking to do justice by balancing rehabilitation against other sentencing factors may also be undermined.

132    This question may need to be addressed in the future when what it means to “impose” a punishment under the DFDA falls to be decided; and whether that means more than just to pronounce the punishment but to carry it out.

Tuesday, August 9, 2022

For your reading list

Noah Riseman, The Royal Australian Navy and Courts-Martial for Homosexuality, 42 Int'l J. Mil. Hist. & Historiography 46 (2021) is available online here.

Sunday, August 7, 2022

Supreme Court upholds Armed Forces Tribunal's refusal to reinstate Indian Navy Officer Cadet

The Supreme Court of India has refused to grant relief to an Officer Cadet of the Indian Navy who was reverted to his original rank and returned to his Unit from the Naval Academy where he was training to become a Commissioned Officer.

The Officer Cadet was originally a sailor in the ranks who was selected for a Commission for which he was training in the Naval Academy. He was, however, relegated twice for infractions such as possession of pornography, cigarettes and belongings of other Cadets. On one occasion, even a ‘seal’ of the government was found on him. After issuing him with Show Cause Notices twice, and finding no improvement in his behaviour, the Navy decided to revert him back to his service in the ranks without loss of seniority

The action of the Navy was challenged by him before the Armed Forces Tribunal which dismissed his case. Thereafter he challenged the verdict of the Tribunal by way of a direct statutory appeal to the Supreme Court.  

In the Supreme Court, it was averred that the principles of natural justice were not followed, and that, as per regulations, it was only the Central Government which could have ordered his reversion to the ranks.

Dismissing his appeal, the Supreme Court has held that the regulation cited by the sailor pertained to termination of service which the Navy did not resort to since he was only reverted back to his original service and cadre without terminating his services. The Court has observed that the Navy did not find him possessing the qualities as required by a Commissioned Officer and it had the full authority under law to take the action it had resorted to.

The judgment can be accessed here.