Here is the link:
Saturday, April 30, 2022
Swiss vaccine-niks' discharges upheld
In autumn 2021, the Joint Operations Command discharged four career servicemen from the Special Military Police Detachment and Army Reconnaissance Detachment 10 for refusing the Covid-19 vaccine.
Special forces carry out missions, in Switzerland and abroad, in situations of extreme danger and great difficulty. They must be able to gather information affecting national security and to repatriate Swiss nationals and diplomatic personnel from war zone or areas of armed conflict. The employment contracts of the servicemen concerned specify that they must be always ready for deployment in such operations.
To ensure their immediate availability, members of the special forces are required by law to comply with the medical directives of the Surgeon General of the Swiss Armed Forces. In this context, the vaccination plan is designed to prevent the spread of infectious diseases within the army and between military personnel and the civilian population. Any undesirable side effects are outweighed by the public interest of ensuring that the special forces can be deployed at short notice to safeguard national security and protect Swiss nationals. As a result, the Court deems that the fundamental rights invoked by the appellants were not infringed upon.
By refusing to be vaccinated for no valid medical reason, the four servicemen deliberately put themselves in a position where they could no longer perform their professional duties. The FAC therefore confirms their dismissal and rejects their appeals.
These judgments may be appealed to the Federal Supreme Court.
The site provides links to the decision.
Thursday, April 28, 2022
Wednesday, April 27, 2022
Tuesday, April 26, 2022
Maj Gen Cooley sentenced
He was today sentenced to a reprimand and forfeiture of nearly $55,000 in pay. At that, he may have a viable issue on appeal, as noted here.
Reactions anyone? (Real names only, please.)
Should court-martial trial judges be civilians?
IV. Constitutionality of section 165.21 of the NDA
 The appellant claims that the decisions of this Court in R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale, 2021 CMAC 2 and R. v. Proulx; R. v. Cloutier, 2021 CMAC 3 are not determinative of this ground of appeal. The appellant states that at page 288 of R. v. Généreux,  1 S.C.R. 259, 1992 CarswellNat 668, [Antonio] Lamer C.J. found that a system in which the judges must be members of the Canadian Armed Forces is intrinsically inconsistent with paragraph 11(d) of the Charter. However, at page 295, Lamer C.J. stated that “[t]his, in itself, is not sufficient to constitute a violation of s. 11(d) of the Charter”.
 I also note that since Généreux, Parliament has amended the NDA several times to strengthen the independence of military judges. Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Session, 36th Parliament, 1998 (assented to December 10, 1998) provided a statutory basis “for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process” (Draft Internal Report – Court Martial Comprehensive Review, January 17, 2018 (online), at p. 38). Subsequently, Bill C-16, An Act to amend the National Defence Act (military judges), 1st Session, 41st Parliament, 2011 (assented to November 29 2011) and Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Session, 41st Parliament, 2013 (assented to June 19 2013), further amended the appointment process, tenure of office, remuneration, and conditions of employment for military judges so as to ensure the independence of the judiciary.
 For the reasons set out in Edwards et al., supra; Proulx and Cloutier, supra; and, more recently, in R. v. Christmas, 2022 CMAC 1, and R. v. Brown, 2022 CMAC 2, I dismiss this ground of appeal.
 It may be that civilian judges are fit to be judges in the military justice system at the first instance level, but this decision is one for Parliament, not the judiciary, to make.
Will this case go to the Supreme Court of Canada? Will Parliament change the NDA? Should it? Note that the UK military justice system currently uses civilian trial and appellate judges, while the US system uses only military officers to preside at trial and almost invariably at the first level of appeal.
Monday, April 25, 2022
Are separate trials required where some offenses are military and others are not?
Air Force general officer convicted -- a first
Major General William T. Cooley has been convicted of one specification of abusive sexual conduct (a forced kiss of his sister-in-law's mouth and tongue), and acquitted of two other offenses. He is the first Air Force general officer to be tried by court-martial. The New York Times's Vimal Patel has the story here. After reading the article, ask yourself what sentence he should receive. Although (as the article notes) he cannot be reduced in rank by the court-martial, unless he is sentenced to a dismissal (the officer equivalent of a dishonorable discharge) he will be subject to a grade determination to decide his retired grade, which is the highest grade in which he served satisfactorily. The allegations arose in late 2019 and Maj. Gen. Cooley was relieved of command over two years ago. One does wonder why, even with the pandemic, it took so long to bring this case to trial. It doesn't seem to be an example of complex litigation. It is unclear from the Times report whether the offense had any service connection (a requirement that once did but no longer does limit court-martial subject matter jurisdiction).
Sunday, April 24, 2022
Want to be a judge?
Supreme Court of India quashes high profile military convictions in two separate cases
The case of Lieutenant General SK Sahni
A three-star general was convicted by a court martial and sentenced to cashiering and three years imprisonment on charges triggered by an anonymous complaint for corruption in procuring rations for the military. The sentence was challenged before the Armed Forces Tribunal (AFT) but the tribunal, while upholding the conviction, reduced it to “dismissal from service”. The tribunal however recorded that there was no specific evidence that the actions of the officer had led to wrongful loss or gain to any person. Setting aside the conviction of the General and the order of the AFT, the Supreme Court observed:
“The learned AFT has specifically come to a finding that the respondent has not committed any fraud or did not commit any act which resulted in actual loss or wrongful gain to any person. We are unable to appreciate as to on what basis the learned AFT comes to a conclusion that the acts lead to an inference that the attempts were made to cause a wrongful gain. The finding as recorded by the learned AFT is totally contrary to the material placed on record”
The General has been directed to be reinstated notionally (since he had already crossed the age of superannuation) but with all consequential benefits.
More details and a news-report on the case can be accessed here.
The case of Major R Metri
In this case, an officer of the rank of Major was convicted of corruption during recruitment process of enlisted soldiers. The officer was awarded cashiering from service with one year imprisonment. On appeal to the AFT, the tribunal set-aside the conviction on charges of corruption but held him guilty under Section 63 of the Army Act, 1950 (violation of good order and discipline). On appeal, the Supreme Court has held that the entire conviction of the officer was based upon an extra-judicial confession (a confession made before an authority which is not ‘judicial’ in nature) which could not be corroborated with any evidence and has acquitted him of all charges and directed his reinstatement into the military with continuity in service.
A report on the case can be accessed here.
Saturday, April 23, 2022
Fraud in the Chilean Army - Milicogate
The Special Prosecutor summoned General Martinez to her office Friday April 1, 2022 in order to interrogate him as a suspect in the case without the assistance of a lawyer. Earlier he had sought to avoid having to appear in her office and hoped to testify at his domicile in the military base known as "Lo Curro." His lawyer filed a writ of amparo (protection of constitutional rights), which was rejected by the Chilean Supreme Court, and after losing there, filed a motion before the Constitutional Court. Under military law, Martinez can be summoned to declare without the assistance of a lawyer, but he has the right to maintain silence, which he did. He was also ordered to remain in preventive detention for five days until the status of the proceedings against him were resolved. He was subsequently released after paying one million pesos bail.
Martinez's lawyer argued that the Special Prosecutor's summoning the General to declare without the assistance of a lawyer violated his constitutional rights and also the American Convention on Human Rights, and he requested the Constitutional Court to suspend the Special Prosecutor's investigation while the protection writ was pending. On April 6, 2022, by a vote of 3 to 2, the Constitutional Court decided not to suspend the Special Prosecutor's investigation.
On April 13, 2022, the Constitutional Court, by a vote of 4 to 1, declared Martinez's constitutional challenge admissible. Martinez's lawyer celebrated the win, declaring that the antiquated procedures of the military justice system had to conform to international standards regarding human rights and due process guarantees. It is not clear whether this decision to let the constitutional challenge go forward will interfere with the Special Prosecutor's investigation.
Legislators move to shift sexual harassment to special trial counsel
Friday, April 22, 2022
The U. S. Library of Congress writes,
New light on retiree jurisdiction
Off-duty consensual gay sex not criminal in ROK armed forces
From this Washington Post article by the AP's Kim Tong-Hyung
Army JAG Corps to open $7 million Advocacy Center at Ft. Belvoir
In an effort to consolidate advocacy training for the Army’s legal professionals, the first Advocacy Center in the Department of Defense is set to open on Fort Belvoir in early May.
According to Lt. Col. Theo Voudouris, the center’s operations officer, the advocacy center is a new initiative, started by the previous Judge Advocate General of the Army.
Now, construction on the center is finished, with equipment expected soon at the facility, across Belvoir’s Gunston Road from Bldg. 1450, the U.S. Army Legal Services Agency. The center is housed in what used to be Belvoir’s Kawamura Human Performance Center.
“The advocacy center will synchronize all advocacy training, within one facility on Belvoir,” Voudouris said. “This will serve as a centralized location for members of the Army JAG Corps, worldwide, to attend training courses in civil and military justice litigation. The center will also have seven, state-of-the-art courtrooms for training and mock trials.
“This new facility is in line with the Secretary of the Army’s priorities to combat sexual assault and enhance military justice capabilities, merging all advocacy training into one facility,” he said.
Thursday, April 21, 2022
Wednesday, April 20, 2022
CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]
New visitors to Global Military Justice Reform may be scratching their heads about the series of 4-judge-bench posts. Here's the background.
Since August 1, 2021, one of the five seats on the U.S. Court of Appeals for the Armed Forces has been vacant due to the expiration of the term of office of Chief (now Senior) Judge Scott W. Stucky.
One of the court's key functions is to rule on petitions for grant of review. This is a very important function because unless the court grants a petition, the petitioner cannot even ask for review by the Supreme Court of the United States (a right granted to all other state and federal court litigants).
By custom, two votes are required to grant review by the Court of Appeals. When there are five judges, that means that the agreement of 40% of the judges is required for a grant of review. When there is a vacancy, two votes are still required, but the 40% requirement has jumped by one-quarter to 50%. In other words, it is harder to get a grant of review.
A fifth set of eyes and ears reviewing a petition may identify some issue or aspect of the case that the other four may have missed.
The court could cure this problem simply by asking one of its eight senior judges to function on petitions, just as senior judges have been filling out the bench on granted cases. Or it could ask that some Article III judge be assigned to sit by designation for this purpose. Or it could simply hold any petition for which there are not currently two votes to grant until the current vacancy has been filled--or any petition that the petitioner asks be held pending filling of the fifth seat. It has done none of these things.
A nomination for the vacancy is currently pending in the Senate.
Saturday, April 16, 2022
Veterans on the Supreme Court: now there will be only one
says in USA Today that it's a bad thing for there to be so few veterans on the Supreme Court. (When Justice Stephen Breyer retires at the end of the Term, the only one left will be Justice Samuel Alito.) He writes:
Having no veterans on the Supreme Court would omit viewpoints grounded in core military values. In reviewing Supreme Court opinions, I found that veterans on the court often invoked military values of "integrity" and "respect." For example, numerous articles cited Justice Anthony Kennedy's repeated appeals to these values, not only in his chambers and among his colleagues, but also for the cases before him and the people involved.
He asks: "Will the next Supreme Court justice be a veteran, or is the court on the verge of becoming a nonveteran echo chamber for years, perhaps decades, to come?"
Echo chamber? Viewpoints grounded in core military values?
FWIW, Justice Kennedy served in the California Army National Guard in 1961-62. Justice Alito went through ROTC at Princeton and served on active duty for three months after law school. Justice Breyer served on active duty for six months, also followed by reserve time.
Thursday, April 14, 2022
Disproportionate use of military justice against members of the Guardia Civil
La Guardia Civil es el Cuerpo que ingresa más procedimientos contencioso-disciplinarios
Wednesday, April 13, 2022
Due process in Chile's uniformed national prison service
In one recent case, a female Gendarme was given provisional early retirement in 2018, which after three years became permanent, before the criminal charges that triggered the provisional early retirement were resolved. The Regional Prosecutor of Valparaiso had investigated her from March 2018 until May 2019, when he informed the Court that he was not going to continue to pursue the case. The Gendarme claimed that her forced retirement was arbitrary and illegal and had automatically become permanent after three years and filed an appeal with the Gendarmería that sought her reinstatement with back salary and benefits.
She appealed to protect her constitutional rights and the Appeals Court held that she was entitled to a decision of the Gendarmería within 90 days following the notification of the Appeals Court's judgment. The Gendarmería was obliged to produce a decision on the criminal charges that had been filed against her that led to her forced retirement.
Tuesday, April 12, 2022
Jury unanimity case to be argued this Thursday before en banc Army Court
Current COVID protocols apply. The courtroom only has 9 seats for members of the public but there is an overflow room on the 4th floor where the argument will be live-streamed. There is currently no mask requirement.
The case is before the Army Court on a government appeal under art. 62, UCMJ.
Another misuse of military courts
reports that between January and March of this year, the military court of Goma in the Democratic Republic of the Congo has convicted 44 individuals for crimes against the environment. The cases were brought at the request of the Congolese Institute for the Preservation of Nature.
Under human right jurisprudence, including the African Charter on Human and Peoples' Rights, the jurisdiction of military courts is reserved solely for military crimes by military personnel.
Monday, April 11, 2022
A call for reform in Chile
The Code of Military Justice dates from 1925 and continues to this day with few reforms. It is urgent to reflect on the need for the existence of military justice and, to agree on its continuity, its scope of competence and its procedure.
With the entry into force of the Criminal Procedure Code, the inquisitorial procedure ended, except in the field of military jurisdiction, where the Public Ministry has no role.
Another point of contention is its competence, which exceeds the legal right that it seeks to protect, the security of the Nation. Military justice, if deemed necessary, should only judge soldiers accused of crimes of a military nature.
Saturday, April 9, 2022
Sen. Lindsey Graham and military justice
Sen. Lindsey Graham's overall performance during Judge Ketanji Brown Jackson's confirmation hearings could be characterized as nasty political theater, or petty payback for perceived slights endured by past Republican nominees. But when it comes to Graham's animated attacks against Judge Jackson's sentencing record of child pornographers, two words best fit the senator: total hypocrite.
* * *
An examination of Graham's Air Force service, which included time as prosecutor and appellate judge, demonstrates that he maintained close ties with the most senior members of the Air Force Judge Advocate General Corps. That's important because one would therefore expect Graham to be intimately aware of how the military punishes child pornography offenders, in particular those in the Air Force. One would also expect that if Graham did not like the comparatively short sentences such offenders receive in the military (which are typically much lighter than the ones handed down by Judge Jackson), he would have done something about it — for example, propose legislation to create mandatory minimums for those convicted of child pornography in the military. He did not.
* * *
Graham's indifference concerning the military's lenient treatment of child pornography, compared to his supposed disgust regarding Judge Jackson's sentencing record, is not only hypocritical. It is political theater at its worst. How we should sentence child pornography offenders is a legitimate debate. But after decades of inaction on his part to reform the military sentencing process, Graham's sudden concern about child pornography sentencing is no more than a cheap, hypocritical and destructive attempt to score political points.
Will an Italian Navy officer accused of espionage face two trials?
Friday, April 8, 2022
Justice in War -- NIMJ/UVA Conference
The NIMJ/UVA conference has just begun. To join by zoom, you can find the link here. Don't miss it.
Deployment and commissioning of HIV+ personnel
Will the government appeal?
Thursday, April 7, 2022
The Russo-Ukrainian War (military justice)
Mikhail Benyash, a lawyer in the southern city of Krasnodar, said he has received more than 100 requests from Russian military and national guard service members about their legal rights should they refuse to fight.
He said he was defending three national guard members who protested the decision to fire them for rejecting the order to go to Ukraine. Nine others were pressured to drop the complaints, he said.
Baby steps in the march to progress
Wednesday, April 6, 2022
Military justice in Uganda
Uganda's misuse of its military justice system, especially with respect to the trial of civilians, has been a recurring issue for Global Military Justice Reform. Congratulations to Prof. Mujuzi for shedding additional light on this subject.
Tuesday, April 5, 2022
Rep. Murphy might wish to study Max Jesse Goldberg's Yale Law Journal Note on Congressional Influence on Military Justice.