Not military justice, but . . .

A link to the February 26, 2022 Application Instituting Proceedings before the International Court of Justice in Ukraine v. Russian Federation can be found here.

Planning now for the next phase of military justice reform

Lawfare has this essay by Don Christensen, Dan Maurer, Phil Cave, Brenner Fissell and the Editor about data-gathering that should be planned for now with a view to evaluating the latest changes in the allocation of responsibility for disposition of offenses under the UCMJ.

USS Bonhomme Richard

A non-lawyer Vice Admiral has decided to go ahead with the prosecution of Seaman Recruit Ryan S. Mays on charges of hazarding a vessel (USS Bonhomme Richard) and arson, contrary to the recommendation of Captain Angela Tang, a Navy military judge who served as the preliminary hearing officer.

The Houston Riot Case

Today's New York Times has this powerful piece about the Houston Riot and the ensuing court-martial and executions of Black soldiers, by Edgar Sandoval. Did you know the trial was held in the Ft. Sam Houston's Gift Chapel -- which is still there?

Coincidentally, The Leavenworth Times has this article about Turner W. Bell, "the greatest Habeas Corpus Lawyer of the West," who represented the 63 soldiers given life sentences in the trial.

Mandatory vaccination at the New Zealand Defence Force

Herewith the decision of the New Zealand High Court in Yardley v. Minister for Workplace Relations and Safety, [2022] NZHC 291 (Feb. 25, 2022) (Cooke, J.), setting aside an order for mandatory vaccination of certain police and military personnel. No word yet on whether an appeal will be taken.

Italian military justice: "rich in honors but poor in cases"?

Will Italian military justice be reformed? abolished? expanded? A modified Google translation of this article by Giulia Merlo in Domani notes:

In Italy, where a criminal trial lasts on average more than four years, with peaks of more than six in some particularly overburdened appellate courts, military trials are resolved within three years and with almost no prescribed crimes.

The speed is due to the fact that there is little litigation: the proceedings registered per year are just under 4000, and are managed by 58 magistrates. With the result that the military judiciary is hyper-hyper efficient as it is underutilized.

The solution would be to abolish it, but a constitutional reform would be needed, or - as the military magistrates themselves ask - reform their penal code in order to give it new powers, relieving ordinary magistrates. But the reform has been in limbo for years.

Key statistic: 4000 cases/year fort 58 judges. The author reports:

This misalignment occurs because the military judiciary -- which falls within the special judiciary together with the accounting one of the Court of Auditors and the administrative one of the Council of State -- has jurisdiction only over so-called military crimes, or only those provided for by the 1941 military penal code of peace, committed by military personnel on duty. The squad is extremely limited and not at all amalgamated with the ordinary penal code. For example: murder between soldiers of different levels is a military crime, but murder between the same rank is not, even if committed for reasons of service; intentional and not negligent injury is a military crime; embezzlement and fraud committed by military personnel are military crimes, but corruption and extortion are not.

Result: military jurisdiction is a fold of the justice system that summarizes all the criticalities. Hyper-hyper efficient as underutilized, it is considered alternatively the Cinderella of special jurisdictions because it is in fact poor of functions, or a golden place for those who enter because it is rich in honors and poor in charges. 

George III watch

Be honest: how many blogs have George III permanently on display?*

For those who can't get enough of him, there'll be a free online talk this Friday at noon, sponsored by the American Philosophical Society, by Andrew Roberts, author of "The Last King of America." Details here.

* Want to know why? Click here.

The Vaccine Mutiny continues

In an effort to remove any doubt or confusion regarding the source of any adverse action against our brave men and women in uniform, should the Department proceed with enforcing these directives, I plan to withhold court-martial convening authority for the Adjutant General and any subordinate commanders in connection with a soldier’s failure to comply with the Department’s vaccine mandates. By taking such action—which the Department has recognized as an example of proper command involvement in military justice matters—I intend to make clear that the Biden Administration will be solely responsible for any consequences brought to bear on a member of the South Carolina National Guard based on their vaccination status. I continue to hope either that the Department will reconsider and rescind its directives or that a court will enjoin the same. In the interim, however, I will not stand idly by or be compelled to implement the Biden Administration’s misguided policies and directives—which defy both law and logic—or play any part in punishing members of the South Carolina National Guard.

From this letter from the governor of South Carolina to the Secretary of Defense

Sea story

If you liked (or even remember) United States v. Sadinsky, 14 C.M.A. 563, 34 C.M.R. 343 (1964), you'll find this essay by a former U.S. Navy judge advocate a fun read.

Don't insult the President

It's one thing to penalize military personnel for speaking ill of a head of state, but how about where the court is military, the accused is a civilian and, worse yet, a member of the [suspended] legislature -- and is tried in absentia, as this article reports. Welcome to Tunisia. 

19,000-case backlog at India's Armed Forces Tribunal

A bar group has asked the Chief Justice of India to do something about the current vacancies on the Armed Forces Tribunal. The Armed Forces Tribunal Advocates Association, Jaipur, says the regional bench in Jaipur has been nonfunctional for years because judicial and administrative members have not been appointed. The Times of India has the details here.

Slovenian decision

The Constitutional Court of Slovenia has ruled that a 1943 military court decision is not reviewable, affirming a decision of the country's Supreme Court. The ruling is not yet on the Constitutional Court's website. Sparse details on this paywalled site.

Déjà vu

Major [Samuel D.] Pepper understood why a soldier would refuse to be inoculated, as he too had suffered a high fever and diarrhea after his vaccination. But while he was sympathetic, Pepper informed the division commander that the refusals, if permitted to go unchecked, would weaken good order and discipline. Major Pepper's advice was the same as would be expected from a judge advocate advising a commander today.

From Fred L. Borch III's excellent new book, Judge Advocates in the Great War, 1917-1922, at 22 & n.21 (U.S. Army Judge Advocate General's Corps 2021)

"Brig" playwright Kenneth H. Brown dies at 85

The New York Times has this obituary by Alex Vadukul of Kenneth H. Brown, who died on February 5 in Queens. Mr. Brown, who had served in the U.S. Marine Corps, achieved early fame as author of "The Brig," a 1963 play based on his experiences as a two-time prisoner in Japan. Although he wrote other works, success was fleeting. "[B]y the time the smoke cleared, I was broke," he wrote in 1986. "The Brig" was made into a motion picture by Jonas Mekas in 1964.

Book discussion: March to Justice - Global Military Law Landmarks, 15 February 2022

Please join the Royal Canadian Military Institute (RCMI) virtual presentation regarding March to Justice - Global Military Law Landmarks, Navdeep Singh and Frank Rosenblatt, eds, on Tuesday, 15 February 2022, at 1900 hrs (ET). 

Rory Fowler and Preston Lim will be discussing the Canadian contributions to the book and how the Canadian perspective reflects within the global context.

Register Here: https://us02web.zoom.us/webinar/register/WN_XtVgvpDESR-2kXPKpstdXA 

Site modification

Longtime visitors to Global Military Justice Reform may have noted that we try not to keep changing the site's layout. One of the weak links has been the Subscribe function, which our platform (Blogger) has stopped supporting. The subscription gadget has just been removed. If you are not a creature of habit but still want to make sure you don't miss any posts or comments, you may want to subscribe to a reader such as Feedspot. Many readers have a free option. Some are listed here. Please comment (real names only, as always) if you have any suggestions for improvement of the blog.

For those who have enjoyed our Town Hall, not to worry: as George III said, they'll be back. Got an idea for a Town Hall topic? Please share it in a comment.

IDF Military Court of Appeals

 The Jerusalem Post reports:

Brig. Gen. Orli Markman was officially appointed president of the IDF Military Court of Appeals and promoted to Maj. Gen. by Defense Minister Benny Gantz and Chief of Staff Aviv Kohavi, and Col. Maya Goldschmidt was appointed a judge at the Military Court of Appeals, could not help but exclaim "At long last."

Pour nos confrères canadiens/for our Canadian colleagues

 

US military commissions and use of torture cited as model for Pakistan

The following is excerpted from this article by two apologists for Pakistan's indefensible use of military courts to try civilians:

Many countries in the world have also put into place military courts to tackle extraordinary situations. Pakistan, once labeled as the home of terrorism, made unprecedented success in fighting against terrorism. The setting up of the military courts with its judicial framework has reinforced the efforts done in curbing terrorism under the umbrella of the National Action plan. Their establishment is not something that is not done by other states. Special circumstances require special measures to deal with them.

The most prominent example in this regard is the United States (US). The global war against terror started in 2001 under the supervision of the US. The United [States] that had a very effective civilian justice system established a military commission to try terrorists who are arrested during its global war on terror. These commissions were established during President Bush’s regime when the United States launched its war on terror in the wake of the 9/11 attacks. Security could even use torture to integrate the suspected terrorist. It was done even when law enforcement agencies had a special power in the United States in their counter-terrorism efforts. They can detain and arrest anyone who they assume could be involved in terrorist activity. These were kind of proactive measures taken by the government in which anyone could be detained without charges. Even with these special measures, ordinary criminal courts were not allowed to hear special cases of terrorism. Because this could undermine the national security of the United States. Moreover, it endangers the lives of the witness, prosecutor, and other people who are involved in this judicial system. When President Obama took office as president of the United States, even he did not abolish the military commission, though the techniques to interrogate terrorists were changed.

Notice any errors? 

USN MJ finds UCI in USMC JAD

Military Judge (Commander) Hayes C. Larsen's February 9, 2022 decision granting the defense's unlawful command influence motion to dismiss with prejudice in United States v. Gilmet can be found here.

Canadian Forces Personnel & COVID-19 Commentary

During the current COVID-19 pandemic, there have been a few reported incidents involving members of the Canadian Forces (CF) who have made public comments that are inconsistent with the commentary and position of the Government of Canada regarding the response to the COVID-19 pandemic.

Readers of this Blog will likely recall the news in May 2021 that Officer Cadet (OCdt) Ladislas Kenderesi, an officer with the Cadet Instructor Cadre of the Reserve Force, was charged with one count of persuading another person to join in a mutiny, contrary to s 81 of the National Defence Act (NDA), and one count of behaving in a scandalous manner unbecoming of an officer, contrary to s 92 of the NDA.

Two more incidents were the topic of a recent news report by Ottawa Citizen (and PostMedia) reporter David Pugliese: Special forces soldier faces scrutiny for alleged support of convoy protesters.

Regular criminal court competent to try soldiers for offences committed during active service, court-martial not mandatory: Supreme Court of India

The Supreme Court of India has handed down an important judgement on military law recently. The editor of this blog has already noted it in this post.

The Apex Court has held that a regular criminal court would have jurisdiction to try a ‘civil offence’ in case the military opts not to take over the case (Must clarify to the readers here that the term ‘civil’ above does not refer to the concept of civil vis-à-vis criminal law but a criminal offence in the civilian world which falls under the regular penal code as applicable to all citizens).

The Army Act provides that the military can try ‘civil offences’ by way of a court-martial (Section 69). There is, however, an exception in Section 70 that the offences of murder, culpable homicide and rape committed against a person not subject to military law shall not be tried by a court-martial and shall be amenable to a regular criminal court unless the crime was committed outside India, while in active service or on a frontier post specified as such through a notification by the Govt.

For taking over a case by the military, the prescribed officer has to exercise his/her choice for trial by a court-martial if the jurisdiction is concurrent between a regular criminal court and a court-martial (Section 125). The practical reality however is that though a court-martial can try criminal offences under the regular penal provisions under various laws, the military does not usually take over a case unless the same displays some military-nexus or service-connection. The military also does not take over a case if it requires some specialized kind of investigation or many civilian witnesses.

In the case before the Supreme Court, though the offence of murder was committed by a service-member against another service-member, that too on active service, the military had not taken over the trial and the same commenced in a regular criminal court.

It was the case of the accused soldier that it was mandatory for the military to take over the trial as per the provisions of Section 70 of the Act. His Petition was allowed by the Sikkim High Court which ruled that he could only be tried by a court-martial.

The Supreme Court, however, overruled the judgment of the High Court on an appeal by the State of Sikkim. The State was also supported in its arguments by the Union of India. The Supreme Court has held that a regular criminal court would have jurisdiction to try the offence since the military authorities had opted not to take over the case and that the applicability of the Army Act would not ouster the jurisdiction of a regular criminal court.

The entire judgment can be accessed here.

Dismissal with prejudice for UCI

Jeff Schogol reports here on the dismissal with prejudice of charges against one accused in a pair of high-profile homicide case on grounds of unlawful command influence (UCI) in the Marine Corps legal community. Will the decision be subjected to appellate review? Will it survive? Here's another report by Todd South.

Mercenaries

The UN Working Group on the Use of Mercenaries has issued this call for submissions by February 28, 2022. Excerpt:

Accountability and remedies

12- What do you consider appropriate approaches to seek accountability for human rights violations committed by PMSC [private military and security companies] and mercenaries, and mercenary related actors?

13- What efforts can be made to increase and secure the accountability of mercenaries, mercenary related actors and PMSC at a local level, in particular what effective structures and legal frameworks should be put in place to make mercenaries and PMSC accountable for their actions, abuses and violations?

14- In the case or situations where victims cannot seek justice and remedy domestically particularly in the absence of an effective judicial system or when state authorities are accomplice to the abuses how can other jurisdictions (for instance home jurisdictions for PMSC, or universal jurisdiction) take up prosecution or at least offer a forum for complaints, including the exercise of extraterritorial jurisdiction or other models of international cooperation, including international legal cooperation.

Non-judicial mechanisms

15- Please explain what additional non-judicial measures should be taken towards the realization of the wider rights of victims, including measures to secure truth and justice for victims, reparations and guarantees of non-recurrence (including truth commissions, people’s tribunals, formal and informal traditional proceedings, armed group courts) Please provide any examples of such processes where mercenaries, mercenary related actors, and PMSC were the perpetrators.

Does initiation of administrative proceedings bar a court-martial?

Not in India, despite a departmental policy letter indicating otherwise. So says the Armed Forces Tribunal, in the case described here.

Book discussion: March to Justice (Global Military Law Landmarks), March 6, 2022

Please join in this book discussion from Jindal Global Law School in India. The panel will include Lt. Gen. (ret) A.K. Singh, Major (ret) Navdeep Singh, Prof. and Lt. Col. (ret) Franklin D. Rosenblatt, Brig. Gen. (ret) Jan Peter Spijk, and the Editor. Ankit Mahotra will be the moderator. The event begins at 8:30 a.m. EST (7:00 p.m. IST), Sunday, March 6, 2022.

The zoom link is https://zoom.us/j/99029908005

Use password JGU

See you on March 6th.

Justice in War: Accountability for Battlefield Misconduct

The Army Judge Advocate General's Legal Center and School and the National Institute of Military Justice are co-sponsoring a conference on accountability for battlefield misconduct at Charlottesville on April 8, 2022. Details can be found here. There's a star-studded list of speakers.

More about possible changes in Chile's military justice system

Paul Contreras writes in Diario Constitucional:

The State of Chile has already been condemned by the Inter-American Court of Human Rights for the operation of military justice. The Palamara (2005) and Almonacid (2006) cases laid the foundations for the infractions and are currently pending compliance by the State. In accordance with the decisions of the Court, Chile has a military judiciary whose organization lacks basic guarantees of independence and impartiality, guarantees of due process and that maintains excessive competition, in which the military courts in peacetime hear cases that exceed the strict competence and function that corresponds to these special courts.

Why is this not a court-martial

 LiveLaw News Network reports,

The Supreme Court has held that criminal court will have jurisdiction to try a case against an army personnel if the Commanding Officer does not exercise the discretion under Section 125 of the Army Act to initiate court-martial with respect to the offence. If the designated officer does not exercise to institute proceedings before a court-martial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court, the Court held.

State of Sikkim vs Jasbir Singh,  2022 LiveLaw (SC) 116Case Number : CrA 85 of 2022 | 1 Feb 2022

Constabularies watch

Should there be a court system, akin to courts-martial, for the Philippine National Police? A bill to create such a system has been introduced in Manila. For an opposing view, consider this op-ed in the Philippine Star.

"There is no need for conscription"

The Israeli Knesset is continuing to wrestle with ways to fix the conscription system, as required by the Supreme Court. It's not easy, as this article demonstrates.