Saturday, January 29, 2022

End in sight in Chile?

Discussions are proceeding on a new constitution for Chile. Will there be a place for military courts in what comes next. Excerpt from this account by Alexis Polo of the "principles of justice systems" that are under consideration:

Although the Justice System Commission, Autonomous Organs of Control and Constitutional Reform has not specifically deliberated on whether or not to eliminate Military Justice, as a result of the approval of the rule of "Principles of Justice Systems" in general, If this continues to advance and is approved in particular and is dispatched by the plenary session, it would mark the end of Military Justice in Chile.

Friday, January 28, 2022

Good order and discipline on the border

The Deccan Chronicle reports here on the court-martial docket for India's Border Security Force. It seems like quite a light caseload. The Border Security Force Act and Rules can be found here.

Thursday, January 27, 2022

An inquiry in Ireland

Retired Justice Bronagh O'Hanlon of the Irish High Court will be leading an inquiry into sexual misconduct, harassment, bullying, and discrimination in the Defence Forces. Irish Legal News has the story here.

If an Executive Order falls in the forest . . .

What if you commit an offense that is created or for which the punishment has been increased during the interval between the time the governing Executive Order is signed and the time it becomes available? As of yesterday, when President Joe Biden signed the latest amendments to the Manual for Courts-Martial, only the brief covering document was available online; the text of the actual changes was not, as CAAFlog noted. (We checked the White House, Federal Register, and Joint Service Committee on Military Justice websites. Nada.) What's an offender to do?

Postscript. CAAFlog has a link to the text of the changes here, courtesy of the JSC. Thanks.

Wednesday, January 26, 2022

Free stuff

Did you know the Library of Congress publishes a Global Legal Monitor? You can find it here.

"The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor."

Fine by us

Want to organize a union for National Guard personnel serving on state orders? Be my guest, says the U.S. Department of Justice, according to this report. Excerpt:

DoJ lawyers asked a federal judge to dismiss a lawsuit brought by state employee unions in Connecticut, saying that “the Government agrees” with them. A federal law prohibiting members of the military from organizing unions “does not apply to Guard members on state active duty or in the Inactive National Guard,” DoJ lawyers wrote in their filing.

Whether state law will get in the way is another matter.

Score one for the Yale Law School Veterans Legal Services Clinic.

Executive Order expected today

President Joe Biden is expected to issue an Executive Order today amending the Manual for Courts-Martial by making sexual harassment a listed offense under Article 134, UCMJ. Army Times's Leo Shane III also reports:

According to White House officials, the executive order will also strengthen the military’s response to domestic violence incidents and increase penalties for service members who share “intimate visual images” without permission.

Azerbaijan's military court docket

Judging by this account, the military court in Azerbaijan seems to have quite a full docket, including war crimes allegations as well as corruption cases. Excerpt:

Some 297 suspected members of illegal Armenian armed groups, who committed war crimes against Azerbaijanis, as well as crimes against peace and humanity, have been charged under articles 103 (genocide), 113 (torture), 115 (violation of the laws and customs of war), and 116 (breaching norms of international humanitarian law during an armed conflict) of the Azerbaijani Criminal Code.

One does wonder why corruption cases (seemingly involving civilians) belong in a military forum.

Monday, January 24, 2022

Military courts as a tool of repression

Professors Brett J. Kyle (University of Nebraska at Omaha) and Andrew G. Reiter (Mt. Holyoke College) have written this worthwhile essay, Why Have Military Courts Become Such a Popular Tool of Repression? Excerpt:

Are there ways to counter the influence of military courts? Reform is most likely during major democratic transitions (e.g., Indonesia) and at the conclusion of civil wars (e.g., Mozambique and El Salvador). Absent such openings, limiting the power of military courts requires sustained domestic resistance by a coalition of civil society actors and reform-minded politicians and judges. Civil society organizations were able to pressure politicians to enact new legislation reining in the power of military courts in South Korea, Taiwan, and the Dominican Republic. Our research shows that domestic high courts are often the deciding factor in bringing about reform, but they require victims to continue to bring cases before them.

The most important lesson is to resist the domestic deployment of the military and the expansion of military justice in the first place. . . .

Saturday, January 22, 2022

Gay sex in Venezuela's armed forces

After a long delay, Venezuela's highest court will be deciding whether it is constitutional to criminalize gay sex among military personnel. According to this account:

Venezuela’s Supreme Court of Justice is not an independent judicial body. Critics argue the court is an instrument of President Nicolás Maduro, and that its decisions are routinely manipulated. José Manuel Simons, one of the lawyers who brought the case in 2016, argued this was why it took the court five years to decide to take up the issue. He doesn’t expect a ruling that in any way condemns the military. But the court’s judges have voted to expand some gay rights in the past, and Simons said he felt confident they would rule in favor of repealing the article.

Friday, January 21, 2022

Sexual assault in the National Guard

From this report on a recent congressional hearing:

At the heart of [Rep. Jackie] Speier’s concerns is the process by which the Guard investigates allegations of assault and harassment. Any allegations are first referred to local law enforcement, [Gen. Daniel R.] Hokanson told lawmakers. Then, if the local authorities decline to pursue the case, the state’s adjutant general can request that the Bureau’s Office of Complex Investigations conduct an investigation.

The OCI, however, is “not a criminal investigative organization,” Brig. Gen. Charles M. Walker, director of the office, told the subcommittee. “We provide administrative investigations as a backstop so the victims and the National Guard will have an opportunity to address sexual violence against its members and to remove those within our ranks who may be perpetrators, in administrative contexts.”

OCI investigations are also complicated by the fact that different states have different military laws outside the Uniform Code of Military Justice, creating a web of different standards to consider.

“Because there are changes to the Uniform Code of Military Justice, each of the states that have a state code of military justice may or may not make changes as quickly as those adjust,” Hokanson said. “And so we really rely on our OCI as they go out to investigate to really look at the State Code of Military Justice and how it applies.”

Could Congress impose a uniform state code of military justice that kept pace with changes to the UCMJ automatically? Links to the state codes can be found here on the National Institute of Military Justice website.

Wednesday, January 19, 2022

Jail or the Army

Here's a really retro story: either enlist or I'm sending you to jail. What if the services refuse to enlist him? Does he then have an argument that he shouldn't go to jail?

Monday, January 17, 2022

Martin Luther King Day

Vaccination challenge dismissed in Colorado

A federal district judge in Colorado has dismissed a challenge to the military's mandatory vaccination program. The decision in Robert v. Austin can be found here. The court relied in part on a similar case from the District of Columbia, Church v. Biden, which also failed.

Sunday, January 16, 2022

Crime wave at Linton?

Jono Galuszka writes here about a surprising number of disciplinary issues at New Zealand's Linton Military Camp. Excerpt:

Linton-based military personnel are among the worst behaved in the country, ticking up nearly as many criminal convictions since 2019 as those at all other bases combined.

Figures provided under the Official Information Act show 46 regular force personnel – non-civilian defence force staff excluding reserves – were convicted of criminal offences in 2019, 2020 and 2021.

Twenty of those were based at Linton Military Camp, easily making soldiers at the Manawatū camp – the largest army camp in New Zealand – the worst behaved.

Saturday, January 15, 2022

“Army & the Courts: Human Rights, Justice and Why Military Law Matters”, book review by Lieutenant General Satish Dua of the Indian Army

"...Law remains a binding force between democracies, and, by extension, between the militaries of democracies. The defining respect of any military flows from how it functions within the bounds of applicable law – both domestic and international..."

Says Lieutenant General Satish Dua in The Quint while reviewing the book “March to Justice: Global Military Law Landmarks” which contains chapters by many contributors to this blog.

General Dua also makes a mention of the balance between national security and human rights and requirement of upholding of law in counter-insurgency operations.

Read the complete article here

Read us in your own language

Some readers may not have noticed that there is a Translate function on Global Military Justice Reform's home page (it's over at the right, under the Search function and just above the Archive). Give it a try. Some of the translations will probably make you laugh.

Your choice, Soldier

Task & Purpose reports:

The Army said in a press release on Wednesday that 6 leaders have been relieved of command and 2,994 soldiers have received written reprimands for refusing the vaccine. Of the active-duty force, which had a vaccination deadline of Dec. 15, 96% are fully vaccinated. The Army Reserve and Army National Guard are another story entirely, in part due to their vaccination deadline being the end of June — months behind the active Army. Currently, 73% of the Army Reserve is fully vaccinated, while 67% of the Army National Guard is fully vaccinated.

Somalia's military court

Harun Maruf reports here, for VOA, on Somalia's military court system. Excerpt:

"The military court does not have legal jurisdiction over al-Shabab-related cases," said Laetitia Bader, Horn of Africa director for Human Rights Watch (HRW).

She said the system operates under an outdated 2011 presidential decree that declared a state of emergency in parts of Mogadishu vacated by al-Shabab.

"Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure," HRW wrote in a 2014 report challenging what it called the court's "absolute power."

Ali Halane, a Somali defense lawyer based in Mogadishu, also contends that military courts should not try defendants with alleged ties to al-Shabab or any other terrorist organization. He said the military justice system, set up in 1964, limits the court's jurisdiction to defendants who are members of the armed forces.

"These are civilians, citizens," Halane said of alleged al-Shabab defendants. "They have a right to be tried by courts trying civilians. And if they are fighting against the army, they should have access to a fair trial. They should find a neutral body."

Friday, January 14, 2022

Good Order and Discipline Reports, U.S. Coast Guard

The U.S. Coast Guard generates a quarterly report on disciplinary actions and administrative actions, some of which involve civilian personnel. These can be found here.

Annual Correctional Reports

The armed forces generate Annual Correctional Reports presenting data on the confinement facility population. These were previously known as Annual Confinement Reports, and--for Army correctional facilities--can be found here. Explanatory information is provided in the instructions for completion. The most recent Army report covers CY20.

Happy birthday to us

It's champagne time again here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, as we mark our 8th Birthday. The numbers:

1,061,106 hits, 6474 posts, 990 comments, 26 contributors, 1 editor, 23 Town Halls, 192 jurisdictions. Top that!

Thanks, friends. On to Year 9.

Thursday, January 13, 2022

Indian military justice needs reform

The Indian military justice system, on the other hand, suffers from lack of independence from the military hierarchy that exerts command influence on court martial. “The very concept of independence remains hazy even to members of court martial (who are not legally qualified).” But worse is that there is institutional resistance to change and organisational inertia.

Aditya S. Puar, in a blistering takedown, noted, “The current system of military justice does not meet the basic norms of independence or separation of powers guaranteed by the Constitution of India. Most democracies have moved on, but we are clinging to a system long aborted by others. The US has proper military judges. In the UK, the Judge Advocate General is a judge functioning under the Ministry of Law and Justice and is civilian. Whereas in India, service in the JAG branch is a judicial service only theoretically but in practice the officers function as advisers without any judicial or executive role.”

The court martial, rather than being a standalone independent self-contained, confident institution, acts more as a wing or an extension of the convening authority, thus resulting in an over-reliance of the entire system on the official side rather than maintaining a balance. The biggest infirmity is that the convening authority decides on the charges against the accused, appoints the president and other members of the court martial board and later confirms the findings and sentence post-trial. Though this enables the chain of command to maintain control over disciplinary matters, it compromises on the basic tenet of justice — of independence of the court.

From this FirstPost book review by Chander Suta Dogra

Wednesday, January 12, 2022

A first in Peru

For the first time, a woman has been named to head the Central Superior Military Police Court, based in Lima.  Details here. Congratulations to Colonel María Carrasco Cabrejos.


The Honourable Justice Michael John Slattery AM RAN has been appointed as a member of the Defence Force Discipline Appeal Tribunal (the Tribunal). The Tribunal hears appeals from persons who have been convicted or who have been acquitted of a service offence by a court martial or Defence Force Magistrate.

Mirage News (hopefully a real entity) reports.

Tuesday, January 11, 2022

Why was she tried in military court? [Correction: she wasn't]

Okay, okay, it's Myanmar, but why try a civilian, famous or not, in a military court? The offenses were illegal possession of walkie-talkies and violating COVID-19 restrictions.

P.S. The trial was held in secret.

Correction (with H/T to Prof. Andrew Reiter of Mt. Holyoke College, who tracks these matters closely): This MyanmarNow article indicates that the case was tried in a civilian court.

Monday, January 10, 2022

NIMJ names 2 International Fellows from India

Congratulations to Prof. Shruti Bedi and Major Navdeep Singh, both of Chandigarh, on being named International Fellows of the National Institute of Military Justice. The Times of India has the story here. NIMJ's roster of Fellows can be found here.

Town Hall 23 this morning at 0900 (US East Coast)

Please join us for Global Military Justice Reform's Town Hall 23, at which we'll discuss the military justice provisions of the National Defense Authorization Act for FY22. Here is a link to a pertinent Lawfare summary by LTC (Professor) Dan Maurer of the Law Department, U.S. Military Academy at West Point: What the FY 2022 NDAA Does, and Does Not Do, to Military Justice. (Views expressed are his own.) He writes:

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

Here's what you need to join us at 0900:

Meeting ID: 876 9812 4177

Passcode: 536655

One tap mobile

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

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

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

Saturday, January 8, 2022

Seriously folks, it's not that difficult

New details: Air Force judge orders release of texts, emails to Cooley defense team

This is actually embarrassing - if you are going to court-martial anyone, much less a general officer, at least follow the discovery rules and discovery orders . . . . 

Friday, January 7, 2022

COVID-19 and military justice (United States)

Here we go again?

The first ever court-martial of a U.S. Air Force general officer has been put off for over three months because of concerns over COVID-19, according to this report. The case involves three specifications of sexual assault. The trial is expected to last 14 days. Why so long?

Are other cases moving forward, or is the entire military justice system frozen?

Wednesday, January 5, 2022

Federal Court of Canada favours maintaining CAF COVID 19 vaccination policy

Four Regular Force members of the Canadian Armed Forces (CAF), namely Lieutenant-Colonel Illo Antonio Neri, Warrant Officer Christopher Warren, Petty Officer 2nd Class Shaun Kyle CharpentierCorporal  Ronald Robert Flynn, Corporal Brian William Rudling  and Corporal Marie-Gaelle Grenier who are unvaccinated moved the Federal Court of Canada (File number T-1813-21 and T-1870-21) for a temporary prohibitive injunction against the obligation for CAF members to be vaccinated for COVID 19.

In its decision  2021 FC 1443 issued on December 17, 2021, the Honorable Justice Janet Fuhrer found that none of the Applicants met the test for a temporary or an interlocutory injunction. The following are extracts of the judgement (click to read judgment here): 

[59] I find that what is at stake for the Applicants here is not forcible vaccination bur rather the consequences of one’s choice to remain unvaccinated.  The Applicants also have failed to provide any evidence or arguments to show that their interests outweigh the public interest in ensuring, to the extent possible, the readiness, health and safety of the Forces, the Defence Team, and the vulnerable groups they may be called on to serve, in the context of the COVID-19 pandemic.  


[73] I find that the balance of convenience favours maintaining the CAF Vaccination Policy for the public good and militates against granting the requested injunction. As mentioned above, the Applicants have failed to demonstrate that their interests outweigh the public interest in ensuring the readiness, health and safety of the Forces, the Defence Team, and the vulnerable groups they may be called on to serve, in the context of the COVID-19 pandemic. The evidence in the matters before me establishes that COVID-19 has posed, and continues to pose, a significant health risk to Canadians, including CAF members who may interact or serve with each other or the public in shared spaces. Infection can occur in shared spaces, even with physical distancing of two or more metres, because of aerosol transmission of the virus. The evidence establishes that vaccination significantly mitigates not only the risk of infection, but also the seriousness of infection if it occurs despite vaccination.

[74] I thus find that on balance, if the requested injunction were issued, material harm to the public interest would ensue, in terms of increased health risks to CAF members and the public they serve, as well as by undermining a measured, evidence-based response, in the form of the CAF Vaccination Policy, to a complex, continuously and rapidly evolving, significant public health emergency. These harms in my view significantly outweigh the harms identified by the Applicants if the injunction is not granted. The balance of convenience therefore favours refusing the requested injunction.

Tuesday, January 4, 2022

Unanimity anyone?

The recent decision by a military judge that a unanimous vote is required to convict brings to mind a similar issue that arose some years ago in a British case. It did not go well.

Federal judge rules for SEALs in vaccination-religious-exemption challenge

The decision of Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas in U.S. Navy SEALs 1-26 v. Biden can be found here. The case was brought by the First Liberty Institute.

Monday, January 3, 2022

Comments policy

Just a reminder: comments on Global Military Justice Reform are moderated. Comments submitted under a pseudonym or anonymously are not posted.

20th anniversary of a professional military in Spain

 On December 31, 2021 Spain celebrated 20 years of a professional military.  In 2001, under the Government of José María Aznar, a decree was adopted that suspended the "mili", obligatory military service, following an intense debate that began in the 1970s, against the mili promoted by conscientious objectors, the "insumisos" (lit. the unsubmissive) -those who refused to do military service and antimilitarists.

The last group of "quintos" (fifths) called to serve was in 2000.  Their name "quintos" comes from the obligation imposed during the reign of Juan II of Castilla (1406-1454) pursuant to which one of every five males was obliged to serve in the military, which continued until 31 December 2001.  The three decades prior thereto were characterized by the increasing fight on the part of objectors and insumisos, who suffered prison terms for their opposition to service.

During the Francisco Franco dictatorship military service in Spain lasted two years; in 1968 it was reduced to 18 months, in 1984 to 12 months, and in 1991 to 9 months.  The long duration of obligatory military service incurred a break in one's life plan, which the objectors and insumisos characterized as "legal kidnapping".  In the 1950s, a military tribunal sentenced Pepe Baunza, the first objector for political reasons, to four years in prison.

By 1992, almost 20% of the quintos declared themselves conscientious objectors and in the Basque region up to 50%.  It has been said that the opposition to the mili was greater in Spain than in any other country in Europe.  The opponents pointed out that the number of abnormal accidents in the military and the fact that suicides were three times as high in the military when compared to civil society helped to convince people that it was time to abolish the mili.

Spain was the third country in Europe to professionalize its Armed Forces after Holland in 1991, and Belgium, the following year.  The majority of European countries have abandoned obligatory military service, but Sweden, Austria and Ukraine, for example, have reintroduced it.  Sweden did not attract enough volunteers so on January 1, 2018 it reintroduced it, for both men and women.  Austria, in 2013, held a referendum on whether obligatory military service should be abandoned and more than half the population participated (52%) and 59.7% voted against eliminating obligatory service. In Ukraine, it was eliminated in 2012, but barely two years later it was reintroduced with the war with Russia over Donbas.  Lithuania also reintroduced it in 2015, after having abolished it in 2008.

What's the going rate for ___ ?

In the U.S. military, criminal and disciplinary offenses that are not serious enough to require a court-martial can be addressed by non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ).  

NJP hearings are conducted by commanding officers.  The hearings are not subject to the procedural rigidity and requirements of courts-martial.  In return, servicemembers can only be subjected to relatively light punishments at NJP, and avoid the stigma of having a criminal conviction on their records.  Servicemembers maintain the right to decline NJP proceedings and face court-martial instead.  

Unlike courts-martial, records on NJP are not centrally kept, and the proceedings are not open to the public.  That makes it harder to find out what offenses are punished by NJP.  While the minor punishments of NJP tend to make such opacity more palatable, several concerns remain.  For one, allegations of racial disparities in the administration of NJP are difficult to assess without adequate data.  For another, there is the troubling possibility that NJP procedures could be abused to permit serious offenses such as war crimes from being swept under the rug, thus avoiding unwanted public attention.  

It is valuable when military units do post summaries of NJPs to permit the public to see how commanding officers are using the procedures.  One recent example from Sheppard Air Force Base chronicles 18 recent NJPs of airmen, listing both the offenses and punishments (but not listing the names of the offenders). 

Why was this a court-martial?

In a continuing Global Military Justice Reform series, the question is again asked, why was this case tried in the military justice system? 

The CID agent here, who plead guilty to murdering his civilian wife, appears to have engaged in his criminal misconduct off-base, sometimes in another country. And the investigation that brought his crime to light was conducted in part by the civilian authorities. If there's anything more to know about this case, please let us know in the comments.