Tuesday, May 31, 2022
Virtual trial can lead to virtual prison?
Hon. Louise Arbour's Report on Sexual Misconduct in Canadian military
Retired Supreme Court of Canada Justice Louise Arbour released her 403-page Final Report of the Independent Review into Sexual Misconduct in the Canadian Armed Forces on May 30, 2022.
Justice Arbour's encyclopaedic report addresses a wide range of subject areas. It contains no less than 48 separate recommendations.
Arbour: Overall assessment of Canadian military culture
Justice Arbour was anything but reserved in her analysis. She describes the armed forces as an institution that is fundamentally out of sync with the values of Canadian society, and which poses a “liability” to the country.
“Firmly entrenched in its historical way of life, the military has failed to keep pace with the values and expectations of a pluralistic Canadian society, increasingly sophisticated about the imperative of the rule of law,”
“Operating as a totally self-regulated, self-administered organization, entirely reliant on deference to authority, it has failed to align with the ever-changing, progressive society we live in. This disconnect is a liability for the CAF and for Canada.”
Some of the areas studied by Justice Arbour are: (a) Structure of the DND and the CAF organizations; (b) the prevalence of sexual misconduct therein; (c) the existing military justice system and procedures; (d) the grievance procedure; (e) the continued utility of Royal Military Colleges; (f) the transfer of jurisdiction of sexual assault to civilian courts; (g) victim support; (h) military leadership; (i) civilian oversight; (j) military training and recruiting; and (k) military human resources management.
In her report, Justice Arbour went on to note that:
“If the military's culture is ever going to change, it needs to fully accept a "paradigm shift . . .when thinking about culture change in response to the sexual misconduct crisis, the CAF leadership seems to have been incapable of examining which aspects of its culture have been the most deficient,”
Among her 48 recommendations,
· Criminal Code sexual offences to be removed from the jurisdiction of the CAF. They are to be investigated and prosecuted by civilian police and criminal courts in all cases. According to Justice Arbour:
“The handling of sexual offences by military courts over the past 20 years has done very little to improve efficiency, discipline and morale. If anything, it has served to erode it,”
· Grievances related to sexual misconduct will be prioritized and fast-tracked. They are to be disposed of within three months.
· An external review will be conducted on the benefits, disadvantages and costs for the CAF to continue to educate ROTP cadets at military colleges and determine whether officer candidates should also be required to attend civilian university undergraduates programs instead through the ROTP.
· There should be a system of progressive targets for the promotion of women in order to increase the number of women in each rank level.
· Appoint an External Monitor to track the progress of her report recommendations for change
Approval in principle of all recommendations by the Minister
"I agree with all of Madame Arbour's recommendations. I welcome all of them . . .
I spoke with the prime minister and he as well agrees with all of Madame Arbour's recommendations."
Discrediting the armed forces
In Russia, according to this report from North.Realities (a regional news outlet of Radio Free Europe/Radio Liberty's Russian Service), civilian courts are prosecuting civilians for "discrediting the armed forces."
2022 Bruges Conference
Monday, May 30, 2022
Prof. Maya Eichler, quoted in this article by Ian Austen in today's New York Times
Watch for further developments; Supreme Court of Canada Justice (ret) Louise Arbour's report is due to be released today.
A mysterious case of the slows in Ottawa
here in the Ottawa Citizen about whether and when sex offenses will, as promised, be transferred to the civilian law enforcement and court systems. Excerpt:
The Canadian military has faced sexual misconduct scandals in the late 1990s and in 2014. Each time, either the military leadership or government of the day brought in a retired judge or a panel of experts to make recommendations on how to deal with sexual misconduct. Each time many of those recommendations were ignored.
Sunday, May 29, 2022
Civilians convicted by DRC military court
The trial of civilians by military courts is forbidden by the African Charter on Human and Peoples' Rights and is strongly disfavored in general by human rights jurisprudence.
Other countries that try civilians in military courts include Uganda, Egypt, Tunisia, Lebanon, and (rarely) the United Kingdom and the United States.
Jurisdiction over discharged personnel
here on a recent case in which the Brazilian Supreme Military Tribunal (STM) upheld military court jurisdiction over an offense committed by an individual who was on active duty at the time of the crime but thereafter discharged. The military trial judge's decision that the case had to be tried in civilian court was reversed. The STM's decision was affirmed by the Supreme Court.
It is not unheard of for countries to retain court-martial jurisdiction over offenses committed on active duty for a stated period of time after the accused has been discharged. The United States Supreme Court found in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), that doing so violates the U.S. Constitution.
Friday, May 27, 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, in case you missed it before.
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). The defects in this arrangement are explored in detail in this article from the Yale Law Journal Forum from a year ago.
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 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. Or, it could simply grant every petition and summarily affirm where no purpose is served by plenary briefing and argument. (It could also do this even when there is no vacancy.)
A nomination for the current vacancy is pending in the Senate.
Bottom line: the purpose of this series of posts is not to be a common scold, but to call attention to an extremely unfair and unnecessary practice. The Court of Appeals should change its process for handling petitions during a hiatus or when there is a recusal. And the Executive Branch and Senate ought to take more aggressive steps to head off lengthy vacancies. This should be possible since CAAF judges have fixed terms of office and expiration dates are known years in advance.
Wednesday, May 25, 2022
Tuesday, May 24, 2022
Monday, May 23, 2022
New feature from The New York Times
"Since Russia invaded Ukraine on Feb. 24, The New York Times has been collecting evidence of brutalities. While many acts of war are disturbing and regrettable, some — especially those that show disregard for the lives of civilians — are considered by the International Criminal Court and other international organizations to be especially heinous, in some cases rising to the level of war crimes.
This page collects Times reporting that includes direct photo, video and audio evidence of these violent acts."
Saturday, May 21, 2022
Civilian court hearing in Italian Air Force hazing case
Spanks and ranks
here about concern over disparate punishment for officers and enlisted personnel. Excerpt:
Congress has undertaken some sentencing reform in recent years in an effort to close the gap between punishments for officers and enlisted personnel. But advocates say lawmakers need to do more to make sentencing more consistent.
In addition to major reforms to how sexual assault cases are prosecuted in the military, Congress last year enacted reforms lawmakers hope will lead to more consistent sentences.
Last year's defense policy bill stipulated that judges, not juries, will hand down sentences in all cases except capital offenses, bringing the military justice system closer to the civilian system. Previously, military defendants were allowed to choose whether they wanted to be sentenced by a judge or jury, in contrast to most civilian courts where juries are involved in sentencing only when the death penalty is a possibility.
Wednesday, May 18, 2022
Saturday, May 14, 2022
Juvenile misconduct on military installations subject to exclusive federal legislative jurisdiction is adjudicated in the federal court system, which is designed for adults. States’ juvenile courts can adjudicate juvenile offenses when concurrent jurisdiction is established between state and federal authorities over military installations.
Establishing concurrent jurisdiction depends on how federal jurisdiction was initially defined, i.e., partial or full jurisdiction, only priority federal interest, or concurrent coverage. If concurrent jurisdiction is established, offenses (such as problematic sexual behavior in children and youth) could be adjudicated through the juvenile court system, allowing for more appropriate sentencing and case management outcomes.
Between one-half and three-fourths of active/reserve installations may require some enabling legislation to support memorandums of understanding for concurrent oversight of juvenile offenses.
First war crimes trial in Russo-Ukrainian War
Why are these cases being tried by military courts?
Friday, May 13, 2022
"Prosecutors" also serving as judge
Some of these judges are currently full-time employees of the U.S. Department of Justice or Assistant U.S. Attorneys. In their civilian role, they are prosecuting in the name of the United States or providing support to those prosecutors.
NIMJ has issued a Policy Statement on the Disqualification of Certain Reservists from Serving as Judges. See United States v. King, No. ACM 39583, 2021 CCA LEXIS 415 (A. F. Ct. Crim. App. Aug. 16, 2021) (memorandum op.), at 16, petition granted No. 22-0008/AF, 2022 CAAF LEXIS 227 (C.A.A.F. Mar. 22, 2022). (The granted issue relates to the excusal of a member and is not related to the judge’s recusal.)
The King case highlights some potential issues for Reserve military judges whose full-time employment is to prosecute in the name of the United States. Courts-martial are prosecuted in the name of the United States. The question is whether these judges should recuse themself from sitting in a court-martial, especially in cases of a bench trial where the military judge is the decider of guilt or not guilt.
Thursday, May 12, 2022
Graduation Day in Naples
Monday, May 9, 2022
Jurisdictional gaps, sexual misconduct, and the National Guard
The article highlights two cases, one from Virginia and the other from Nevada, where complainants felt the National Guard did not adequately investigate sexual misconduct. The article explained, in ways my personal experience can attest to, how cases can slip through the cracks in units that drill a couple of days each month. Sometimes such units do not clarify for personnel how their complaints will necessarily reach a receptive audience. And sometimes such drilling complicates efforts to find federal jurisdiction over sexual misconduct.
Cooley Town Hall
Reminder: Town Hall this morning at 0900 (The Case of Major General Cooley)
Join us today (Monday, May 9, 2022) at 9:00 a.m. US East Coast time, for a Global Military Justice Reform Town Hall about the case of Major General William T. Cooley, USAF, who was recently convicted of forcibly kissing his sister-in-law. He was sentenced to a reprimand and forfeiture of $54,550. Questions abound, so please come, ask, comment, kibbitz, or lurk.
Here is the link:
Sunday, May 8, 2022
Chinese authorities issue new policy document on protecting the interests of military personnel and their dependents
The People's Liberation Army (PLA) Daily published a press release of an interview with a "responsible person" of the People's Liberation Military Court in late April of this year about studying and implementing a policy document issued by the Political-Legal Commission of the People's Liberation Army and the Central Political- Legal Commission in February. The document is entitled "Opinion On Protecting the Interests of Military Personnel and Those Linked to the Military in the New Era (关于新时代维护国防利益和军人军属合法权益的意见)." The text of the policy document was previously reported in state media but the full text has not been released. This practice is normal for military and national defense-related policies. The two institutions that issued that document are in charge of administering Chinese Communist Party (Party) legal policy in the military and civilian spheres. Opinions such as this one are, as explained by a German think tank concerning opinions issued by a higher Party institution, "types of policy documents that delineate general targets and set the official line for policy making and implementation across specialized departments and local governments." Therefore this Opinion is intended to set out general targets and new or updated policies across a broad range of institutions to be implemented. These types of Party opinions guide the military courts as well as many other institutions. The article states that it was published to assist PLA officers and soldiers to understand the spirit of the document. That phrase means that it was issued to explain the purposes of the document so those reading it will understand what was intended so that it will be implemented properly. Who is the "responsible person" of the PLA Military Court, why is that person explaining this document, and what spirit does the document convey?
Responsible persons and why they provide explanations
Generally, the "responsible person" is the person in charge or alternatively, a deputy, in a state or Party institution, which means that the person is either the court president or one of the vice presidents. From the responsible person's summary, the policy document is intended to implement two laws issued last year, one on the protection of military facilities and the other on improving the treatment of military personnel. It appears to relate to other Party and SPC documents issued earlier and described in my book chapter relating to the Supreme People's Court (SPC) and its services and guarantees to improve the protection of the interests of military personnel and those linked to the military. The military personnel covered by the Opinion include the following: Military personnel includes those in the PLA and Armed Police; officers and soldiers; serving personnel and those attending military schools and academies; spouses of military personnel, parents and others supported by military personnel; minor children; adult children of military personnel who cannot live independently; martyrs, survivors of those who died in service or died of illness [presumably linked to service]. In addition, the policies apply by reference to civilian personnel working for the military, reservists, and those about to retire.
The spirit conveyed by the document
The responsible person reminded readers that the document was issued to deal with recent policy changes generally, and particularly those linked to improving the status of military personnel and their families and other related policies promoted by Xi Jinping and the Party leadership to modernize the PLA. One of the major issues mentioned is that with social and policy developments, legal issues related to military personnel and their families are more numerous and varied.
The article mentions that the military courts at all levels are serving to coordinate issues related to the protection of the rights of military personnel and those linked to the military. This coordination role has its counterpart in the civilian courts.
Military courts at all levels are to handle military-related disputes and cases according to the following procedures:
First, register matters in a timely manner. For the law-related issues reported by the troops and servicemembers' family members, the courts will review the issues raised by them and provide advice. The second step is to register the matter, review the facts, and determine what is needed. If the issue raised is not actually a legal issue or the issue raised is unreasonable, court personnel are required to provide explanations to the military personnel or family member. The civilian courts have counterpart functions, as part of their litigation service centers. These are part of Xi Jinping-era reforms to petitioning procedures and petitioning related to litigation. Third, if the issue involves matters outside the military courts, the military courts are to coordinate with other authorities and follow up with the authority handling the matter. The military courts are required to provide feedback to military personnel and their families on progress. The military courts are required to classify and upload data concerning these disputes to a newly established platform.
The responsible person mentioned that matters within their remit include coordinating with civilian authorities concerning crimes such as sabotage of military facilities, theft of military supplies, military-related forgery, and fraudulently posing as a soldier, with civil matters varying from land use disputes to family disputes.
The Opinion proposes a Party-led military-civilian cooperation mechanism, which seems to be a revised version of an entity that this author wrote about earlier. The document also more clearly allocates the responsibilities of civilian and military departments for implementing this new policy.
The High Court of Jammu & Kashmir and Ladakh strikes down Rule 129 of the Border Security Force Rules
The Rule runs (or used to run, prior to the ruling) as under:
“129. Right of person tried to copies of proceedings— Every person tried by a Security Force Court shall be entitled to obtain on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required and before the proceedings are destroyed, from the Chief Law Officer a copy thereof, including the proceedings upon revision, if any.”
The challenge was limited to the aspect that the operation of the Rule denies (denied) a copy of the proceedings to the accused, including statements of witnesses recorded at the trial before a Security Force Court (Court Martial) till the culmination of the trial and sentencing. As per the rule, the documents could be provided to the accused only after the sentencing and confirmation (if applicable) of the verdict.
The High Court has observed as under:
“…A trial whether before a Criminal Court or before a General Security Force Court, which does not provide fair and proper opportunities allowed by law to prove innocence violates the right to life and liberty guaranteed to the citizens and non-citizens by Article 21 of the Constitution of India. Apart from various fair trial rights guarantees to an accused facing a criminal trial, right to cross-examine or to have examined witnesses against him and to obtain attendance and examination of the witnesses on his behalf under the same conditions as witnesses against him is well recognized both in International Human Rights Law as well as the domestic law. The right to cross-examine a witness with adequate time and facilities for production of his defence is necessary concomitant of right to fair trial guaranteed to an accused facing a criminal charge…Rule 129 of the Rules, as it is, does take away vital fair trial right of an accused tried under the Act and, therefore, would fall foul of Article 21 of the Constitution of India…”
The Court has also discussed the ambit of Article 33 of the Constitution of India which relates to abrogation of fundamental rights of members of various forces for limited purposes.
The complete judgment, and a report on the same, can be read here at Live Law.
Friday, May 6, 2022
Sexual harassment investigations and the Russo-Ukrainian War
We see in the Russian army’s performance in Ukraine an inexplicable slowness and failure to exploit opportunities. Much of the difference between how the Russian and American militaries operate can, in large measure, be attributed to differing levels of trust. Fearful of making the wrong choice, Russian unit commanders typically wait for orders from their superiors. By contrast, American military leaders act, knowing they have the trust of their superiors who will underwrite mistakes made in good faith.
That’s due, in large part, because our officers are exceptionally well trained and have developed outstanding judgment. By the time they are promoted in rank and given the privilege of command, they have made hundreds of thousands of decisions, small and large, that have affected the training, equipping, morale, and careers of thousands of men and women.
By curtailing the authority of commanders—first, to refer charges to trial, and now, in the case of the Navy to merely investigate allegations of sexual harassment—Pentagon leadership is purposefully undermining the authority of commanders to do their job and eroding the trust that must be present for U.S. forces to fight and win.
Federalist Society panel on religious liberty and the Department of Defense
Wednesday, May 4, 2022
Tuesday, May 3, 2022
Unusual basis for a mistrial
The Chief Judge of the Court Martial Kevin Riordan has declared a mistrial in the case of a senior naval non-commissioned officer facing a charge of common assault against a subordinate.
On the second day of the trial, after all witnesses had spoken, Judge Riordan addressed the military panel tasked to judge their peer in the court martial.
He said he had understood from them that they had decided on the facts of the case on Tuesday morning, before all the evidence had been presented in the case, which may prejudice the accused’s “absolute right to a fair trial”, he said.
this Journal of Peace Research book note about Brett J. Kyle and Andrew G. Reiter's Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice (2021).
"[T]he detailed case studies and conclusions are important within the context of military justice reforms worldwide, as they provide crucial academic policy consideration for the improvement of civil-military relations and enhancement of the rule of law within any court system. The research will be of use to academics, civil society, and policy researchers working in the field of military justice as well as transitional justice and provides a welcome cross-disciplinary analysis of a timely topic."
Monday, May 2, 2022
Ireland: move towards union affiliation of military representative associations
, a defence correspondent, advocates in this article for service members of the Irish Permanent Defence Forces (PDF) getting better work conditions and pay. Elected officials, in particular the Minister of Defence, are called to authorise union affiliation of the military representative associations with a larger national labour organization, the Irish Congress of Trade Unions (ICTU). The goal is for those military associations to be part of the national pay talks, as the current scheme of negotiations is perceived inefficient.
The correspondent writes that, not only are service members the lowest paid of the public sector but as the private sector offers better pay and conditions, many service members are leaving the PDF, raising workload and stress for the remaining ones.
More than 90% of Irish service members are already represented either by the Permanent Defence Forces Other Ranks Representative Association (PDFORRA) for the enlisted personnel, or by the Representative Association of Commissioned Officers (RACO). These organizations were established in 1990s pursuant to Irish defence legislation in order to represent service members in relation to their remuneration and conditions of service. Since then, both organizations have been representing their members within an institutionalized process, called the Conciliation & Arbitration Scheme (C&A Scheme), “to address issues related to matters encompassed by the scheme, including rates of pay and allowances for members of the PDF; and terms and conditions for recruitment into and promotion within the PDF.”
However, the C&A Scheme has been criticized for some years. Irish defence legislation does not allow an association to be affiliated to any trade union without the consent of the Minister of Defence. PDFORRA sought that consent to become affiliated to ICTU but was denied. PDFORRA wishes to benefit from ICTU bargaining power and access to information and discussion on pay of the public sector. The European Organisation of Military Associations (EUROMIL), military representative organisation for several hundred thousand service members in 22 different European countries, submitted a complaint to the European Committee of Social Rights (ECSR). EUROMIL alleged Ireland was “in violation of Article 5 [right to organise] and Article 6 [right to bargain collectively/right to take collective action (strike)] of the Revised European Social Charter [Charter] on the grounds that defence force representative associations do not possess proper trade union rights.”
In its 2018 decision, the ECSR concluded that prohibiting military associations from joining larger organization had the impact of depriving those associations an effective means of negotiating conditions of employment, contrary to Article 5 of the Charter. ECSR further concluded that the C&A Scheme “fails to ensure sufficient access of military representative associations to pay agreement discussions” at national level for the public sector, in violation of Article 6§2 of the Charter. However, the ECSR held that the prohibition of the right to strike of Irish service members does not violate Article 6§4 as it is proportionate and necessary in a democratic society.
ECSR decisions “are not directly enforceable in the domestic legal systems” although “they must be respected by the States concerned.” As explained on ECSR’s website, “they set out the law and can provide the basis for positive developments in social rights through legislation and case-law at national level.” Therefore, based on EUROMIL v. Ireland decision, PDFORRA sought remedy before the Irish High Court “to force the government to allow it affiliate with the umbrella union group ICTU.”
Recently the RACO, traditionally supportive of the C&A scheme, also decided to seek affiliation with ICTU. The move was supported by 85% of its members who “have lost faith” in the current process, according to RACO.
At the time of the ECSR decision, the then-Chief of the Defence Staff of the PDF expressed concerns that granting affiliation could have implications for State security, in particular if service members opt to strike. Both PDFORRA and RACO ensured it would never happen. On that point, before ECSR, EUROMIL stated that “ICTU has stated that PDFORRA could be affiliated to ICTU with whatever conditions the Government deems necessary.”
It will be interesting to see how the debate unfolds. In particular, whether the Minister of Defence, after reviewing the RACO ballot result, would decide to consent to union affiliation. Or whether the High Court of Ireland would intervene to bring the Irish government to do so.