Monday, February 28, 2022
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.
Sunday, February 27, 2022
Saturday, February 26, 2022
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.
Tuesday, February 22, 2022
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.
From this letter from the governor of South Carolina to the Secretary of Defense
Sunday, February 20, 2022
Saturday, February 19, 2022
Wednesday, February 16, 2022
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)
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.
Monday, February 14, 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
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.
Sunday, February 13, 2022
Saturday, February 12, 2022
Friday, February 11, 2022
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?
Thursday, February 10, 2022
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 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.
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.
Wednesday, February 9, 2022
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.
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.
Tuesday, February 8, 2022
Sunday, February 6, 2022
The zoom link is https://zoom.us/j/99029908005
Use password JGU
See you on March 6th.
Friday, February 4, 2022
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.
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.
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