CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

as of June 28, 2022.

Why was this trial held in a military court?

A civilian businessman has been convicted of embezzlement in a Russian court-martial.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Not military justice, but . . .

NATIONAL LAWYERS GUILD MILITARY LAW TASK FORCE STATEMENT

OVERTURN OF ROE v. WADE’S EFFECTS ON WOMEN IN THE MILITARY AND MILITARY FAMILIES

With its disastrous decision to overturn Roe v. Wade, the Supreme Court has endangered millions of pregnant people and stripped them of their autonomy and reproductive rights. Twenty-two states have laws or state constitutional provisions already in place that will totally or effectively ban abortion in light of the Court’s decision in Dobbs v. Jackson Women’s Health Organization, which holds that the U.S. Constitution does not confer a right to abortion. Overturning Roe especially imperils the lives of the poor, people of color, and minors. It will also have an outsized effect on women in the military.

Some of the military’s largest installations are in states where abortion will immediately become banned in the wake of Roe’s repeal, including Fort Hood and Fort Bliss in Texas, Fort Campbell in Kentucky and Tennessee, and Fort Benning in Georgia and Alabama. All told, hundreds of thousands of troops and their dependent family members will be unable to access safe and legal abortions.

Overturning Roe adds yet another layer to the gender discrimination and inequality in the military. Women in the military already face pervasive discrimination and harassment. Thousands of women service members are sexually assaulted or raped each year. Moreover, service members already have greater difficulty in accessing reproductive health care than their civilian counterparts. Federal law prohibits service members from receiving most abortions through their military health care, and military doctors are not allowed to perform abortions. Even if abortion is available in the local community and a service member can pay out of pocket for the procedure, they must have a commander approve to get leave obtain an abortion off base.

The military must not let the states dictate its service members’ abortion rights. The MLTF supports efforts to ensure that all servicemembers have safe and legal access to abortion, and that service members can request transfers out of states that will discriminate against—or take rights away from—them or their family members. The MLTF calls upon the service branches to ensure that their members have access to safe, legal abortion options, and for Congress to repeal the restrictions on military providers and health insurance providing abortion coverage.

The MLTF stands ready to assist those within the military who may be affected or at risk because of Roe v. Wade being overturned. We also work with other allied groups attempting to enact meaningful policy changes in this area.

National Lawyers Guild’s Military Law Task Force nlg.mltf@gmail.com

619-463-2369

Deceased Liberian soldier recommended for prosecution

You read that right. Details here and here. Excerpt from second article:

According to Sam Collins, the Assistant Minister for Press and Public Affairs, while the shooting incident that led to [Sgt. Prince] Tucker’s death was unfortunate; the deceased had to be charged with an attempt to commit murder under the [Liberian] Uniform Code of Military Justice.

“It sounds funny out there to hear that a dead person has been charged but the Armed Forces of Liberia has decided to do this in line with the law in the purview of the military and in consonance with the 1986 Constitution. It is a crime to take away life, it does not matter if you commit suicide,” Collins told journalists.

“The Military Police report recommended Sergeant Tucker be charged according to Article 80 (Attempt to Commit Murder); Article 128 (Aggravated Assault); Article 134 (Firearm, discharging willfully, under circumstances, has to endanger human life); and Article 92 (Failure to obey order or regulation) under the Uniform Code of Military Justice.”

Collins added that the Military Police investigation also found that Tucker shot himself to death — which carries a lot of charges including aggravated assault and willful firearm discharge under circumstances to endanger life.

Somehow a trial seems unlikely. For example, how would the accused plead?

For your bookshelf

The fifth edition of L. Lynn Hogue's Military Law in a Nutshell (West Publishing Co.) will be available next month. Details can be found here. Publisher's blurb:

The fifth edition of Military Law in a Nutshell by L. Lynn Hogue has been thoroughly revised and updated. It is intended as an authoritative resource for those seeking a succinct summary of military law and justice. It is designed for use by practicing lawyers seeking a succinct overview of military law, cadets at military academies and students in college R.O.T.C. programs, and members of the Army, Navy, Air Force, or Coast Guard Judge Advocate General's Corps. It should meet the needs of news media reporters and bloggers requiring information and background on military law and justice. Members of the armed services faced with non-judicial punishment, administrative discharge or more serious actions should also find it helpful. New to this edition is a detailed "Guide to Seeking Justice for Former Servicemembers with 'Bad Paper' Discharges." Every effort has been made to account for changes in the Uniform Code of Military Justice (UCMJ).

Congratulations to the author. 

Where should this case be tried?

The Jerusalem Post writes here about the pretrial release of Palestinian Authority security personnel who are awaiting military court trial:

“The flawed military trial of 14 low-ranking security officers will not bring about justice,” according to Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa. “There needs to be a civilian trial following international standards, not just a smokescreen to protect those higher up. It is essential that the individuals who gave orders to arrest Nizar Banat for no lawful reason, and who oversaw the assault, are also held to account.

“Under international human rights law, cases involving human rights violations should be prosecuted in civilian courts, even if they involve members of the military,” she said. “The Palestinian Authority must immediately transfer this case to the civilian justice system, to ensure that proceedings are independent of those involved in the crime.”

Too close for comfort

The Military Chamber of the Supreme Court of Spain has affirmed the six-month suspension of an Army lieutenant colonel. According to El Diario:

At that time the relationship was closer, forming part of the same group of friends, and that's when the lieutenant colonel tried an intimate approach to his subordinate through calls and messages. "Conversations lasting more than 30 minutes, which although they began with professional issues, always led to personal issues", explain the sentences of the case. Messages also in which he hinted at his intention to seek a sentimental rapprochement between the two. An "excessive" relationship of affection, according to the sentence, in which the lieutenant colonel also established physical contact when they were alone "grabbing his arm, touching his hair, the nape of his neck or his back, the soldier revealing her discomfort with said physical approach.

These messages and calls initially overlapped with licenses granted by the superior, for example so that the soldier could take care of her young children, but it turned into hostility when, two years later, she began a relationship with another soldier. In 2019, the Supreme Court declares firmly proven, the lieutenant colonel began directing actions towards the soldier that "attacked her privacy and dignity, and influenced both her private and professional life, affecting her conduct and behavior ”.

For example, there was harassment on several occasions when she was on sick leave or when she was being transferred to the hospital. In her own home during her convalescence, and in the presence of other people, she even said that she was not sick but that she was “crazy”. She withdrew the privileges previously granted to her, which allowed her to reconcile her professional life with the care of her children, and ordered the woman to "find her life". She also began to control who entered and left her house.

One of the last episodes of this harassment took place in May 2019, when the soldier offered to help a girl who had been found unwell on a school trip that passed near her home. The director of the center, who refused her help, received a visit from the lieutenant colonel at the school shortly after, without an appointment and requesting information about what had happened. He went on to say that he was investigating whether the soldier had denied her help to a little girl.

Lebanon again, still

From Amnesty International:

Responding to the trial of Lebanese comedian and activist Shaden Fakih, who will appear on Friday before the Military Court on charges of insulting and harming the reputation of the Internal Security Forces (ISF), Diana Semaan, Amnesty International’s Acting Deputy Director for the Middle East and North Africa, said:

“The case of Shaden Fakih is the latest example of the Lebanese authorities’ abuse of defamation laws to curtail freedom of expression by trying journalists and activists in the Military Court.

“Over the past three years, Lebanese security and military agencies have been increasingly harassing and interrogating activists in relation to social media posts that criticize the authorities, often referring their cases to the military justice system for investigation. This prosecution is a clear violation of the right to freedom of expression, which Lebanon has most recently committed to upholding during its 2021 Universal Periodic Review before the United Nation Human Rights Council. These shameless attempts to stifle activism and criticism must stop.

“Lebanese authorities must immediately drop the case against Shaden Fakih, stop subjecting civilians in general and activists in particular to the Military Court and end the abuse of laws on defamation to suppress criticism of officials and institutions. It’s essential that the Lebanese government brings national laws on the right to freedom of expression fully in line with international human rights law and standards.”

Full text can be found here. 

Duel anyone, don't second that

Task & Purpose has an interesting piece on UCMJ art. 114 as it relates to the offense of dueling. At one point Article of War 25 listed the specific prohibitions. See Winthrop's Military Law & Precedents (1920 Reprint), at page 590, for a decent discussion. Winthrop is sometimes referred to as the Blackstone of military law.

Go to page 911, in this online version.

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

as of June 22, 2022.

R v Thibault, 2022 CMAC 6 - suspension of sentence awaiting leave to appeal

Last Friday, 17 June 2022, the Chief Justice of the Court Martial Appeal Court of Canada (CMAC) handed down his order (and reasons therefor) in R v Thibault, 2022 CMAC 6, an application for a stay of execution of a sentence of imprisonment pending an application for Leave to Appeal to the Supreme Court of Canada (SCC).

The judgment is not lengthy, nor does it break new ground.  Indeed, the Chief Justice of the CMAC relied upon a similar rationale described in one of his earlier decisions, R v Royes, 2016 CMAC 3. 

The decision in Thibault turned on the third part of the 3-part test regarding the such applications, established in RJR-Macdonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.  The Director of Military Prosecutions (DMP) acknowledged that the first two parts of the test - (1) Is there a serious question to be tried; and (2) Will irreparable harm result if the stay is not granted? - were met.  The decision turned on where the 'balance of convenience' lay.

The Chief Justice observed that the third part of the test turned on two components: public safety and public confidence in the administration of justice. The Chief Justice rejected the application principally due to the second component, holding, at para 11:

The facts of this case are somewhat similar to Royes, supra (serious sexual assault; no risk of flight and the appeal only bears on a constitutional question). I reach the same conclusion herein as in Royes for the four following reasons. First, the events that resulted in the conviction date more than ten years ago. Second, the complaint was brought to the attention of the civilian authorities in 2012. It was only the military justice system, which took the complaint seriously. Third, at the time of writing these reasons, the Supreme Court has not yet decided whether it will grant the application for leave to appeal in Edwards et al., supra, which is the basis for the motion herein. Finally, this Court has pronounced on this issue five times, in nine appeals, including this appeal. In light of these observations, I am of the view that a thoughtful and dispassionate individual, informed of the circumstances of the case and respectful of society’s fundamental values would expect that the judgment of this Court be executed in a timely manner. The time has come for the execution of the decisions of the Court Martial and of this Court, in particular given that the Supreme Court of Canada has not yet pronounced on the application for leave to appeal from the decision of this Court in Edwards et al.

A reasonable person may disagree with the Chief Justice's conclusion.  From my perspective, I would contend that the delay in prosecuting Sgt Thibault argues as much in favour of granting the stay pending a Leave decision as it does a rejection.  If Leave is eventually granted, and an appeal before the SCC is successful, there is little that can be done to compensate Sgt Thibault for his loss of liberty.  A reasonable person, informed of all of the relevant facts and law, would likely conclude that a delay of a few months to ensure that a person's liberty is not infringed in contravention of the Charter, suggests that the balance of convenience favours the Applicant.  However, it is unlikely that any reviewing court would interfere with the Chief Justice's conclusion.  

That said, the reasons for the decision are notable in two ways other than the individual impact on Sgt Thibault.

First, the Chief Justice noted that the SCC still has yet to decide on the Application for Leave to Appeal in R v Edwards et al, 2021 CMAC 2 (and several other related judgments that parallel Edwards et al).  It has been over four months since the materials for that Application were submitted to the SCC.  Notwithstanding that, as the CMAC judgment in Edwards et al was unanimous, the Applicants and putative Appellants do not have a right of appeal, the issue regarding the independence of the military judiciary is an important issue and one that has not been fully tested before the SCC.  One might perceive a subtle criticism regarding the delay by the SCC in making a decision regarding the Application for Leave to Appeal.

Second, note the comment from para 11: "... the complaint was brought to the attention of the civilian authorities in 2012. It was only the military justice system, which took the complaint seriously."  Again, that comment can be viewed as a subtle (or perhaps, not-so-subtle) message to the Minister of National Defence regarding her direction that all matters of criminal sexual misconduct arising within the context of the Canadian Forces must be referred to civil courts of criminal jurisdiction.  Note, too, that despite this supposed direction (including valid questions about how that direction was conveyed), civil police are not uniformly accepting responsibility for such investigations and DMP is still preferring some matters of criminal sexual misconduct to court martial.

The cost of military justice

The federal government tracks spending with considerable care. The current spending for the U.S. Court of Appeals for the Armed Forces is summarized here. Prime contracts awarded to West Publishing Co. total $746,199.

The court has decided 17 cases on full opinion thus far during the present Term, which began on October 1, 2021. Since August 1, 2021, one of the court's five seats has been vacant.

Civilians among the defendants in Guinea military trial

Guinea has begun a military trial of soldiers and civilians on charges of, among other things, conspiracy, attack, assassination, and participation in an insurrectionary movement, according to this report from Africaguinée.com.

The trial of civilians by military courts is strongly disfavored by human rights law and forbidden under the African Charter on Human and Peoples' Rights.

Objection!

The regional section of the Tunis bar has objected to the exercise of military court jurisdiction over civilians. Details here, en français.

Into the NDAA weeds

President Joe Biden yesterday sent a memorandum to Secretary of Defense Lloyd Austin "on the Prescription of Method of Designating a Member of the Military Sentencing Parameters and Criteria Board." That board was created by the FY22 National Defense Authorization Act. The memo reads as follows:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022, Public Law 117-81, 135 Stat. 1541, 1700 (2021), I hereby order as follows:

(1)  If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Navy, then the Judge Advocate General of the Navy shall designate as a voting member of the Military Sentencing Parameters and Criteria Board (Board) either the Chief Judge of the Department of the Navy or a Navy trial judge assigned to the Navy and Marine Corps Trial Judiciary.

(2)  If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Marine Corps, then the Staff Judge Advocate to the Commandant of the Marine Corps, in consultation with the Judge Advocate General of the Navy, shall designate as a voting member of the Board a Marine Corps trial judge assigned to the Navy and Marine Corps Trial Judiciary.

This memorandum constitutes the regulations provided for in subsections (ii) and (iii) of section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022.

You are authorized and directed to publish this memorandum in the Federal Register.       

The purpose seems to be to ensure that, come what may, the board will include both a Navy and a Marine Corps military judge as voting members. Perhaps some day the explanatory memo that presented this document to the President for signature will be made public.

Apology-time

It has taken 53 years, but a junior officer involuntarily retired from the Irish Defence Forces "in the interests of the service" may be getting an apology. The Times (of London) has the story here. Donal de Róiste's earlier efforts to obtain relief were dismissed on the ground that he had waited too long to seek judicial review. See De Róiste v Minister for Defence, [2001] 1 IR190, [2001] IESC 4; [2001] 2 ILRM 241.

Movie time

Remember "A Few Good Men"? Here is an amusing DIGG interview about what's wrong (and occasionally right) with the picture.

Annals of blogging: censorship

In April 2014, Global Military Justice Reform ran a post titled The Case of the Indelible Ink and the Leak. This evening the Editor received the following disturbing communication from Blogger:

Hello,

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow -- and don't allow -- on Blogger. Your [April 2014] post titled "The case of the indelible ink and the leak" was flagged to us for review. We have determined that it violates our guidelines and have unpublished the URL 

http://globalmjreform.blogspot.com/2014/04/the-case-of-indelible-ink-and-leak.html, 

making it unavailable to blog readers.

Why was your blog post unpublished? Your content has violated our Malware and Viruses policy. Please visit our Community Guidelines page linked in this email to learn more.

If you are interested in republishing the post, please update the content to adhere to Blogger's Community Guidelines. Once the content is updated, you may republish it at 

https://www.blogger.com/go/appeal-post?blogId=4070126256373578912&postId=8937149438267242335. 

This will trigger a review of the post.

For more information, please review the following resources:

Terms of Service: https://www.blogger.com/go/terms

Blogger Community Guidelines: https://blogger.com/go/contentpolicy

Sincerely,

The Blogger Team

This action is completely unwarranted. There was nothing objectionable in this eight-year-old post.

Tunisia again

The Tunisian Military Court of Appeal has sentenced a civilian attorney who opposes the country's president has been sentenced to jail for a year and barred from law practice for five years for insulting a judge. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Tunisia is among the thankfully small number of nations that continue to conduct such trials, often to suppress dissent. See, e.g., Uganda, Egypt, Lebanon.

SASC markup of FY23 NDAA

The executive summary of the FY23 National Defense Authorization Act as approved by the Senate Armed Services Committee can be found here. The actual language of the bill has not yet been released, but the "Strengthening Military Justice" section (pp. 17-18) recites that the measure:

• Makes various additional modifications to military justice reforms enacted in last year’s bill, including adding additional covered offenses to those over which the Office of Special Trial Counsel will exercise authority, requiring the President to amend the Manual for Courts-Martial to ensure that residual prosecutorial and judicial duties with respect to covered offenses are transferred to an appropriate entity, and requiring comprehensive reporting from the Department regarding implementation of last year’s reforms.
• Makes a number of technical corrections to article 24a of the Uniform Code of Military Justice (UCMJ) (10 U.[S].C. 824a) concerning the creation of the Office of Special Trial Counsel, enacted in last year's UCMJ reform.
• Amends Article 66 of the UCMJ to authorize judicial review of any conviction by court-martial, regardless of the sentence imposed; amends Article 69 of the UCMJ to clarify the scope of review in general and special court-martial cases reviewed by a Judge Advocate General.
• Amends Article 25 of the UCMJ to require the randomized selection of personnel for service as panel members on courts-martial under regulations prescribed by the President.
• Requires the Secretary of Defense, through the Sexual Assault Prevention and Response Office, to provide for the coordinated distribution and referral of information on the availability of resources provided by civilian legal services organizations to military-connected sexual assault victims.
• Authorizes civilian employees of the DOD to make restricted reports of sexual assault for the purpose of assisting the employee in obtaining information and access to authorized victim support services provided by the Department.
• Expands on last year’s creation of a primary prevention research agenda by including specific research topics regarding interpersonal and self-directed violence.
• Requires the Department’s Primary Prevention Workforce authorized in the FY22 NDAA to incorporate findings and conclusions from the primary prevention research agenda.

Juneteenth 2022

 

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

as of June 6, 2022.

Plague of sexual misconduct in Canadian military cannot be solved internally -- Parliament must act

For the past two and one half decades, the Canadian Armed Forces (CAF)  has received a cascade of warnings about the deep-seated crisis of rampant sexual misconduct in its ranks. There are no less than 13 senior Canadian military officers - current and former- who have been sidelined, investigated, or forced into early retirement. This includes two former Chiefs of the Defence Staff; four lieutenant-generals, two major generals,

So far, very little has changed.  The existing crisis is having a certain impact on recruiting and retention as well as the hard earned reputation of the Canadian Armed Forces. 

Shown below is a summary of the events that fuel the current crisis in leadership of the Canadian military.

PART 1 - THE STORM CLOUDS ABOUND

A CASCADE OF WARNINGS SINCE AT LEAST 1997

A few months after the 1997 publication of “Dishonored Legacy” a report by a Commission of Inquiry which addressed the lessons of the Somalia Affair under the themes of leadership and discipline failures, cover-up by the chain of command and a lack of accountability, the Canadian media alerted the public to this toxic matter. MACLEAN’S MAGAZINE published four cover stories in 1998 under such titles such as: “Rape in the Military“; “Of Rape and Justice“; and, “Speaking Out”. 

Astonishingly, in response to this crisis affecting both the safety and integrity of soldiers as well as the reputation of the institution, in 1998 Cabinet suddenly transferred the investigation and prosecution of sexual assaults to the military under the pretext to “enable the military to deal with the incidents swiftly for the sake of unit cohesion.”  In plain language this meant that ‘unit cohesion’ – an euphemism for military control – was to take precedence over the safety, integrity and dignity of soldiers. Other warnings followed. 

·Fo    For instance, the 2010 high-profile sexual assaults of Colonel Russell Williams brought vivid attention to this issue. At the time of his arrest, Colonel Williams was acting as the Commander, Canadian Forces Base Trenton. Colonel Williams was sentenced to two life sentences for first-degree murder, two 10-year sentences for other sexual assaults, two 10-year sentences for forcible confinement, and 82 one-year sentences for breaking and entering, all to be served concurrently

 In April 2014, MACLEAN’s published another major cover story titled “Our Military’s Disgrace“.  In 2015, the Globe and Mail newspaper reported on the existence of a sexualized culture at the Royal Military College (RMC). In February 2016, CBC television broadcasted a French-speaking documentary "Femmes au combat” [Women in Combat] in which five female soldiers denounced the lack of action taken by the military in response to their sexual assaults by fellow soldiers. This was quickly followed in 2015 by a strings of media reports about sexual misconduct at the RMC.  However, except for the occasional comment in the House of Commons, parliamentarians appear satisfied to let the military “deal” with the problem!

 A manifest example of this “leave it to the military” attitude was created in April 2015 when  Parliament enacted the Canadian Victims Bills of Rights which at sub-section 18(3) excluded victims whose offenders were investigated and prosecuted by the military. Stupendously, until June 2022 victims of sexual assault whose offenders were prosecuted before a military tribunal were denied the protection of this Act. They were alone in Canada having to fend for themselves.  

2015 JUSTICE DESCHAMPS’ REPORT

Also, in 2015 an External Review on Sexual Misconduct was conducted by the Honorable Marie Deschamps,  a retired Supreme Court Justice. Not surprisingly, Deschamps found that a large percentage of incidents of sexual misconduct were not reported. There was a deep mistrust by the victims that the military did not take their complaints seriously and that such conduct was generally ignored, or even condoned, by the chain of command. Victims feared negative repercussions, lack of career progression, expressing concern about not being believed, being stigmatized as weak, labeled as a trouble-maker, being subjected to retaliation by peers and supervisors, and/or diagnosed as unfit for work. Deschamps also found that the Military Police lacked the appropriate skills and training to deal with sexual-assault victims.

 In the wake of this report, the then Chief of the Defence Staff, General Jonathan Vance, launched Operation Honour and opened an in-house reporting center. This is, in essence, the military’s plan of action. It turned out to be a failure.

STATISTICS CANADA EXTRAORDINARY STATISTICAL SURVEY OF THE MILITARY

Then in November 2016, Statistics Canada – a national statistical office - published the results of a survey on sexual misconduct in the military. The responses received from over 43,000 members did not bring anything new to the table. However, it brought forward ‘certainty‘ about the scope and severity of the matter. Consider: a)  among Regular Force members, 27.3% of women and 3.8% of men had been victims of sexual assault at least once since enrolling; b) about 960 members had been victims of sexual assault in the previous 12 months; and, c)  49% of women who were victims of sexual assault identified their supervisor or someone of a higher rank as the perpetrator.

OFFICE OF THE AUDITOR GENERAL WEIGHS IN WITH AUDIT OF MILITARY COLLEGES

In 2017, the Office of the Auditor General – an officer or the Parliament of Canada - conducted an audit of the Royal Military College (RMC) which focused on, inter alia, whether National Defence ensured the proper conduct of officers and staff. Proper conduct includes the responsibility to obey the law, enforce military discipline, and uphold professional and ethical standards of duty, loyalty, integrity, and courage. The audit concluded that the RMC’s governance was ineffective. It also found that RMC did not provide effective military leadership training, guidance, and mentoring to Officer Cadets. It opined that this may have contributed to the large percentage of incidents of sexual misconduct among senior Officer Cadets

In 2018,  the Office of the Auditor General weighed in with a new report aimed at determining whether the military actually have taken adequate measures to cope with the issue of sexual misconduct including the provision of support to victims of sexual misconduct. According to the AG, the CAF provided some support services to victims, but these services were sometimes difficult to obtain and not all stakeholders were adequately trained to assist victims.  Also, it found there were significant gaps persisted and that it was not always easy for victims to access the services they needed in a timely manner. The AG concluded that the military has not always dealt with the reported incidents in a timely, consistent and respectful manner. The AG report is a clear signal that the military simply cannot solve this twenty years’ crisis on their own.

"Houston, we have a problem"

Another senior officer--a retired Lieutenant General--in Canada is facing charges, according to this report in The New York Times. It is difficult not to be bewildered by the series of cases.

"While [Lt. Gen. Trevor] Cadieu’s case will be heard in a civilian court and he faces charges under Canada’s Criminal Code, rather than its military law, the local police had refused to handle the case."

Why is this case being sent to a military court?

The Libya Observer writes:

The first criminal court circuit of Tripoli Court of Appeals ruled Wednesday that [the] Abu Salim case was out of its judicial specialty, referring the case to military justice.

The case was sent to th[e] court circuit after the second criminal court circuit of the Supreme Court decided in May 2021 to appeal the 2019 ruling of Tripoli Court of Appeals that dropped all charges against the perpetrators citing the end of the duration of litigation (10 years since the date of [the] crime).

[The] Abu Salim Prison massacre took place on June 29, 1996. 1269 inmates were killed with the excuse of starting a riot and resisting prison guards.

This account does not explain why the case had to be referred to a military, aside from giving the prosecution a belated second bite at the apple. Human rights jurisprudence suggests that human rights violations by military personnel should be tried in civilian courts. An event in which 1269 prison inmates were killed would certainly suggest that human rights had been violated.

Upcoming changes to Code of Service Discipline

On 20 June 2022, significant changes will be introduced to the Code of Service Discipline, the statutory disciplinary process by which the chain of command maintains the discipline, efficiency, and morale of the Canadian Forces.  Or, perhaps more accurately, the Code of Service Discipline is one of the mechanisms by which the Canadian Forces maintains discipline, efficiency, and morale.

Those changes - specifically the introduction of Summary Hearings - will markedly alter the ability of members of the Canadian Forces (CF) to defend their individual rights, interests, and privileges, when accused of disciplinary wrongdoing.  Two of the hallmarks of Summary Hearings are: (1) there will be no right to elect trial by court martial; and, (2) there will be a reduced burden of proof (reduced from the criminal standard of 'beyond a reasonable doubt' to the civil standard of 'balance of probabilities').

These changes reflect anecdotal suggestions that the CF chain of command has, in the past, when faced with non-criminal misconduct by CF personnel, generally sought to lay charges whereby they would not be obliged to offer the accused the right (a statutory right) to elect trial by court martial.  Moreover, in light of the track record of the CF chain of command in applying the civil burden of proof in administrative decision-making, observers can reasonably be apprehensive about whether those decision-makers fully understand the distinction between applying that burden of proof to evidence, and the separate obligation to interpret the law correctly, and act reasonably.

Over the past two weeks, I have offered some observations about some discrete issues concerning jurisdiction under the Code of Service Discipline, specifically regarding a CF member's right to elect trial by court martial.  As of 20 June 2022, these specific legal issues will largely be moot.  However, the ethical issues that have arisen in that context will continue to be relevant under the new regime introduced under Bill C-77, and may even be amplified.

Some Observations on ‘Military Justice’ at Summary Trial - Part I

Some Observations on ‘Military Justice’ at Summary Trial – Part II

Some Observations on ‘Military Justice’ at Summary Trial – Part III

Some Observations on ‘Military Justice’ at Summary Trial – Conclusion

Granma on changes in Cuban military justice

Granma, "the official organ of the Central Committee of the Communist Party of Cuba," has this report on recently issued changes in Cuba's military court system. (Google Translate does a good job with this if you cannot read Spanish.) Excerpt:

This legislation, based on the principles established in Chapter V of the Constitution of the Republic, consolidates the system of individual guarantees in the military field.

In accordance with international instruments and the Constitution of the Republic, it enshrines the principle of equality before the law, the right of every person to be presumed innocent, to be heard publicly and fairly by a competent, independent and impartial established by statute.

Over at CAAFlog

This morning's CAAFlog has this personal-views post by LTC Dan Maurer about the en banc decision of the U.S. Army Court of Criminal Appeals in United States v. Dial. Among other concerns, the Army Court makes no reference to the Supreme Court's Ortiz decision. 

Comments welcome (real names only, please.)

A postscript from LTC Maurer can be found here.

Separation proceedings for Army officer who refused coronavirus vaccine

A military judge convicted First Lieutenant (1LT) Mark Bashaw, but did not punish him, in the first known COVID court-martial on April 29, 2022. Now, 1LT Bashaw's company commander has initiated separation proceedings against 1LT Bashaw, citing the failure to get vaccinated. 

Stars and Stripes indicates that the Army denied 1LT Bashaw's request for a religious exemption from the coronavirus vaccine. Their article does not clarify whether 1LT Bashaw consistently refused vaccines on religious grounds through his 16-years of service. Regardless, 16-years of service will likely help 1LT Bashaw in his upcoming proceeding. 

Officers who have served less than 5 years, like most 1LTs, do not get the benefit of an Army Board composed of three officers from outside the chain-of-command. That Board will hear his case, consider the evidence, and then make a recommendation on separation. If that Board votes for retention, the Army cannot separate 1LT Bashaw. For officers with less than 5-years of service, decisions to separate go through the chain-of-command without an independent hearing before being forwarded on to the Commanding General, Human Resources Command. 

Of potential interest, according to the Army Times article from May 3, 2022, Colonel (COL) Yevgeny Vindman appears to be the responsible Staff Judge Advocate for the unit that court-martialed 1LT Bashaw. As you may recall, COL Vindman was dismissed from the National Security Counsel in February 2020, after President Trump's first impeachment. An IG report later determined the Trump White House retaliated against COL Vindman. 

No judge, no bail

Here's a new one. Uganda's military is holding 32 civilians charged with possession of explosives. They cannot be released on bail because the term of the chairman of the General Court-Martial has expired. Details here.

Instead of waiting for Uganda's president to fill the position, why not apply to a civilian court for bail?

Human rights jurisprudence strongly disfavors the trial of civilians by military courts, and the African Charter on Human and Peoples' Rights forbids it.

Stolen weapons

CIPER 15 has this report on the steady flow of cases in which Chile's military courts have had to deal with the theft of weapons by soldiers and carabineros. The thefts are apparently committed to obtain arms for criminal gangs. Excerpt:

Between 2012 and 2022, the Santiago Martial Court (with jurisdiction over the Army, Air Force and Carabineros) and the Navy Court Martial (located in Valparaíso) recorded at least 38 cases of theft of weapons – and related materials, such as bulletproof vests, uniforms and others – perpetrated by soldiers or carabineros, which culminated in convictions for 54 soldiers. CIPER reviewed each of these processes and in at least 15 of them there is evidence or indication that the stolen weapons were destined for criminals, including drug traffickers. In six of these cases, the military justice investigations managed to reliably record the link between the soldiers involved and the criminals. In another nine, although the link with criminals is not exhaustively described,

In several of these investigations, it was the military and police themselves who confessed the fate of the stolen species. It was also exposed how contacts between officials and criminals were established.

Oting case

Thirteen residents of Oting village, Nagaland, died last year in what has been described as a botched military operation. The issue now is whether the Indian military will prosecute the 30 involved personnel or permit criminal proceedings to move forward in the civilian courts. The Armed Forces (Special Powers) Act places that decision in the hands of the military. The Times of India has coverage here and here.

Prof. Ed Sherman has passed away

Edward F. Sherman, one of the towering figures of military justice reform in the last half of the 20th century, passed away on June 7. Ed taught at several law schools and was a popular and successful Dean of Tulane Law School for five years. He wrote an early military justice casebook with Donald N. Zillman and Albert J. Blaustein, Cases and Materials on Military Law: The Scope of Military Authority in a Democracy (Matthew Bender 1978). Among his military justice writings -- he wrote with distinction in other legal fields as well -- are the pivotal Maine Law Review article, The Civilianization of Military Law (1970), and the prophetic Military Justice Without Military Control, 82 Yale L.J. 1398 (1973). In addition to his scholarly work, Ed was a gifted practitioner, a gentle mentor, and a role model to many. He was a founding board member of the Lawyers Military Defense Committee. Additional details can be found on his Tulane faculty page.

Sincere condolences to Alice Sherman and family.

Why was this case tried in a court-martial?

Off-base shooting of a civilian. Why wasn't this case tried "downtown"?

“This case shows how OSI works in close collaboration with local authorities,” said Maj. Bradley Byington, OSI Det 113 commander. “When so many witnesses are involved, uncovering the truth can be challenging. However, our Special Agents and local partners were able to successfully complete this investigation through hard work and professionalism.”

The Air Force Office of Special Investigations site writes:

"This is another case in which OSI worked tirelessly to fulfill its ongoing mission responsibilities of Defending the Nation, Protecting the Integrity of the Department of the Air Force, Finding the Truth, and Serving Justice for All."

Clearfield City, Utah's tentative budget for FY22 included $3,886,806 for police patrol and investigations (see p. 54). The city's population was 31,364 in 2020.

Is a court-martial a "special court"?

India's Protection of Children from Sexual Offences Act, 2012, provides for trials in special courts. Notwithstanding that provision, the High Court of Jammu, Kashmir and Ladakh has held in Prasad v. Union of India that a summary general court-martial may try a charge under the 2012 Act as a civil offence under the Army Act s. 69. The court also noted that the petitioner had to seek review within the military justice system.

Lithuania's failure to recognize conscientious objection by Jehovah's Witness

The European Court of Human Rights has ruled against Lithuania in a case involving a Jehovah's Witness who asserted a claim of exemption from conscription based on conscientious objection. The decision in Teliatnikov v. Lithuania, Application No. 51914/19 (2d Section June 7, 2022), can be found here. The court summarized the decision as follows:

Under the Court’s case-law a refusal to take up military service or alternatives could be a
manifestation of an individual’s religious beliefs. Although the applicant in this case had not been convicted of any crime in that regard, it nevertheless held that the refusal to grant him conscientious objector status had been an interference with his sincerely held religious beliefs. That interference had had a basis in domestic law and had been a constitutional duty of citizens with the aim of securing public safety. 

The Court reiterated that compulsory military service imposed a heavy burden on individual citizens. It was necessary to strike a balance between the need to share the burden of military service and an individual’s conscience. The Supreme Administrative Court had failed to examine whether there had indeed been weighty reasons so as not to exempt the applicant from military service. Indeed, that court had consistently promoted the constitutional obligations of individuals to the State above the right to religious freedom. Overall, the Lithuanian system of conscription failed to strike a balance between the needs of society as a whole and those conscientious objectors who were happy to contribute to society in some other way. 

Regarding alternative civilian service, the Court held that that was not a real alternative, as it was part of the military superstructure, with draftees referred to as “military conscripts” throughout the regulations. States needed to establish alternatives outside of military command structures. 

The Court ultimately found that the State’s failure to respect the applicant’s conscientious
objections had not been “necessary in a democratic society”, in violation of Article 9 of the Convention.

West Bank military court chief steps down

The Jerusalem Post notes here a range of issues that arose during the long tenure of West Bank military court Chief Judge Brig.-Gen. Netanel Benishu, who retired earlier this year. The article fails to quote Palestinian critics. Much of the information in it cites unnamed sources.

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

as of June 7, 2022.

Jurisdiction over retirees: constitutional?

Global Military Justice Reform contributor Commander (ret) Philip D. Cave has this article in the Virginia Lawyer.

Apparently there is accountability for military officers' screw-ups...in the Russian military, anyway. Reuters reports that around a dozen Russian officers were prosecuted for ("oops") sending conscripts to fight in the illegal war of aggression Russia precipitated and is continuing against Ukraine. Accountability, or scape-goating by the Kremlin when they realized their lies about not sending conscripts to the front were exposed? Will these officers be sent back to fight, or actually dismissed?  My bet is the former. 

Russo-Ukrainian War (military justice)

A Russian court has imposed a 10-day sentence on a soldier from Chechnya who refused orders to deploy on a so-called "special mission" (presumably to Ukraine). Details here from The Moscow Times. The article links to the Russian court service website, but that site is apparently not working.

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

as of June 3, 2022.

NIMJ/Panjab University program on "Military Justice: Reflections and Learning"

The video of today's NIMJ/Panjab University program can be found here.

For your bookshelf

West Academic Publishing has announced publication of Veterans Law: Cases and Theory (2d ed. 2022) by James D. Ridgway.

The newest edition of the leading casebook in the field of veterans law features almost a third new cases and new sections on emerging issues to support theory-based classroom instruction and practice-based clinical teaching. This edition includes comprehensive updates and new materials on topics including Gulf War claims, class actions at the Court of Appeals for Veterans Claims, and the Appeals Modernization Act. The cases focus on those most influential on practice at the CAVC and the Board of Veterans’ Appeals, while the notes and questions support discussions of descriptive and normative theory. The overall approach is to compare how veterans law handles issues common to related areas, such as torts, evidence, administrative law, and civil procedure. It further examines whether the differences can be explained by veteran-friendly doctrines, administrative considerations, or historical inertia.

The book is part of West's American Casebook Series. Congratulations to the author. 

"There's never been a case like this"

If you haven't been following the Ben Roberts-Smith defamation case in Australia (said to be the longest and most expensive such case in the country's history), this report by The Sydney Morning Herald's Harriet Alexander is the place to begin. Arm yourself with a double espresso as you dive in; it's complicated. How's this for a lede?

Arthur Moses, SC, enunciates the phrase “winged penis” as though holding it in a pincer grip with silicone gloves. His thick black hair is neatly parted to one side, his manners impeccable, his legal pedigree immaculate. A former president of the NSW Bar Association and former president of the Law Council of Australia, he has represented the highest-profile litigants in the land during his 29 years at the bar.

Now he is representing Ben Roberts-Smith, Australia’s most decorated living soldier, and he is picking around the regiment humour of the Special Air Service troops who served in Afghanistan. The evidence in this trial has ranged through the seediest basements of the soldiers’ private lives and brought matters once whispered between veterans into the public sphere. It has broken friendships among the troops, many of whom were called to testify under pain of subpoena and resented the fact of the trial’s existence.

Military justice: reflections and learnings

At 10:00 a.m. (EST), on June 6, 2022, the National Institute of Military Justice and Panjab University (Chandigarh) will be co-sponsoring an online panel discussion on military justice. Details on how to tune in can be found here. Be ready with your questions.

Here is the live link:

https://youtu.be/pT0sFOgad-k

Two trials?

The Italian Supreme Court of Cassation has declined to intervene in the case of a naval officer who is being prosecuted in both military and civilian court. Using Google Translate, this article is murky, but one must assume that eventually the Court of Cassation will have to resolve the jurisdictional issue.

Russo-Ukrainian War (military justice)

The Wall Street Journal's Matthew Luxmoore reports here on war-related desertions from the Russian Army, Interior Ministry forces and National Guard. So far, there have apparently been no jail sentences. The article is unfortunately paywalled.

Loss of confidence--NJS

It is reported that the Navy JAG leadership has lost confidence in the CO and XO of Naval Justice School to perform their mission. Therefore, they have been detached for cause. A DFC is accompanied by a special fitness report detailing reasons for detachment and a report to Naval Military Personnel Command. A report to which the officer has the right to submit a rebuttal.

Reports indicate the reasons are based on a command climate survey and 
not misconduct. It is possible an early retirement might follow.

The Navy insists that the officers' firings "will not impact the NJS mission or execution of its training schedule."--Um, perhaps things might get better?

I can't remember a similar situation at NJS, at least since I went there in January 1980.

There is a short media article here.