Saturday, July 30, 2022
Friday, July 29, 2022
It's an auspicious occasion, so let's run the numbers:
Contributors 26 (plus one Editor)
Thank you to everyone who has contributed to Global Military Justice Reform by posting, commenting, or visiting.
CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]
Wednesday, July 27, 2022
Support for General Franco is alive and well in the Spanish Armed Forces
The Military Chamber of the Spanish Supreme Court overturned a disciplinary sanction on a former corporal in the Spanish Army, which he had received for signing, in 2018, a "Manifesto in collective response against the franquismo (support for the dictator General Francisco Franco) in the Armed Forces." He also gave an interview to the newspaper "eldiario.es" on the same date, explaining why he signed the Manifesto.
The Supreme Court found that his action did not infringe upon the respect that he owed his superiors nor did it effect the proper functioning and efficacy of the military. It found that his action was not a manifestation against the Armed Forces as an institution, only against the members of the military who had signed the first Manifesto, against which he protested.
The first Manifesto was prepared by a group of approximately 180 retired members of the military and widows of members of the military, who had published a Declaration in defense of General Franco. In the newspaper interview, the corporal was asked what he thought when he found out that hundreds of military officials published a communiqué praising Franco, in 2018. He replied that because it was 180 signers, he was not afraid, with 700, it would have been worse; but he was overwhelmed. How could it be possible that members of the military, on active duty, defending the Constitution, now support a genocide. He said that he decided to go public because this praise of Franco goes against the Spanish Constitution: "If there really was a Transition, this document has no right to exist." The interviewer asked the former corporal why he had only managed to get 20 signatures whereas those who praise Franco aver that they had collected 600 signatures. The corporal replied that this begins with the military academy, they open your brain and they put what they want into it. The most repeated phrase in the military, he said, is that they don't pay you for thinking.
The Supreme Court held that the right to freedom of expression is guaranteed not just for civilians but for members of the military as well by the doctrine of the European Court of Human Rights and also by the constitutional doctrine of the Spanish Supreme Court.
The Supreme Court noted that both Manifestos arose at a moment in which Spain was involved in a public debate regarding the decision of the Government to modify a law by which the rights of persons who suffered during the Civil War and the Dictatorship were recognized. In addition, the purpose of the "Valle de los Caídos", formerly a franquista project designed to glorify Franco, was converted into a monument for those, on both sides, who had been killed in the Civil War. Franco, who had been buried there, was exhumed and reburied elsewhere.
Tuesday, July 26, 2022
Monday, July 25, 2022
Not so fast!
Sunday, July 24, 2022
Thursday, July 21, 2022
Kevin Vuong, the Code of Service Discipline, and the importance of accurate reporting
Mr. Vuong had been a candidate for the governing Liberal Party of Canada in the 2021 federal election. On 16 September 2021, four days before the federal election culminated, the Toronto Star reported that, in April 2019, Mr. Vuong had been charged with sexual assault before a civil court of criminal jurisdiction. The charge was withdrawn six months later - which is as close to exoneration as Mr. Vuong can likely hope to achieve. On 18 September 2021, two days before the federal election culminated, and after asking Mr. Vuong to 'pause' his campaign, Prime Minister Justin Trudeau stated that Mr. Vuong would not be permitted to sit in the Liberal caucus if he were elected. Mr. Vuong was elected with nearly 40% of the votes cast in his constituency.
Mr. Vuong is also a Sub-Lieutenant in the Naval Reserve, a formation within the Canadian Forces (CF).
The CBC initially reported that Mr. Vuong would appear at a Summary Trial before the Deputy Commander of the Naval Reserve on Wednesday 20 July 2022. He was charged - according to the CBC - for failing to inform his chain of command of the charge laid against him before a civil court of criminal jurisdiction (i.e., sexual assault, contrary to section 271 of the Criminal Code).
The CBC subsequently reported that Mr. Vuong 'admitted to all the particulars' of the charge laid against him. He was found guilty and fined $500.00 by the presiding officer, Captain (Navy) Etienne Landry.
Wednesday, July 20, 2022
New International Commission of Jurists report on Libya
- Include in the Constitution a provision that expressly excludes the jurisdiction of military tribunals to try and adjudicate serious violations of international human rights law and IHL, including crimes under international law;
- Amend the Military Penal Code, the Military Code of Criminal Procedure and any related laws to:
o Transfer the competence to try and adjudicate crimes under international law from military tribunals to ordinary civilian courts;
o Limit the jurisdiction of military tribunals to specifically military offences committed by armed force members that do not constitute human rights violations; and
- Ensure that military tribunals, when trying and adjudicating offences under their jurisdiction, comply with international fair trial standards.
Tuesday, July 19, 2022
CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]
* Click here for the back story on this series of posts.
If only the whole dissertation were available
Military law is poorly understood by comparison with its non-military (i.e. civilian) counterpart. This thesis offers the first detailed overview of military law in the British army at the start of the nineteenth century, exploring its provisions and practices, and how the theoretical framework of the law was imposed in reality. It draws on a wide-ranging selection of material, from works of authority on military law, to court proceedings, trial registers, soldiers’ memoirs and the correspondence of leading figures and stakeholders in the administration of military justice. A core element of this research has been the transcription of a database of 9,227 court martial cases, which will be drawn upon to highlight the army’s prosecution priorities and punishment practices. Throughout it is argued that military law was more nuanced than has previously been recognised, whilst its implementation was underpinned by a pragmatic system of discretionary justice. Military law was consistently applied in a way that was bespoke to the army’s immediate needs, yet the nature of these ‘needs’ varied according to each individual’s position within the army’s command structure. With these diverging priorities, military law was simultaneously pulled and manipulated in multiple directions, with some calling for softer forms of punishment and taking a lenient approach towards certain crimes, whilst others pushed for more stringent measures. Military law was also by no means constant during this period. Competing pressures and conflicting priorities led to a diverse array of agendas which not only influenced how the law was implemented, but also how the law was reformed. It will become apparent that these diverse priorities led to an uncoordinated programme of reforms, with some efforts undermining the intentions of others. However military law did not operate within a vacuum. Throughout the thesis, close reference will be made to discussions and practices within the contemporaneous non-military justice system. Throughout the period under scrutiny, society was experiencing the Foucauldian shift from punishment of the body to punishment of the mind through incarceration. For much of the period, the army bucked that wider social trend in order to attend to its own needs, only embracing solitary confinement from 1817 as a result of growing pressure from senior officials in the army’s administrative structure. Similarly, the growing ‘lawyerisation’ of civilian courts was mirrored by a militarization of the army’s, with an increasing tendency to employ officers with some legal knowledge to officiate on trials, rather than civilian legal experts. It is argued that these trends indicate that whilst the army was willing to be informed by wider civilian practice, military law was applied in a manner which operated on different logic that was shaped by the army’s distinct needs.
The database of 9227 courts-martial will be interesting reading when it becomes available.
Monday, July 18, 2022
Ukraine Military Code for its security/intelligence agency?
The Bonhomme Richard Fire--Accountability
"The most serious actions focused on the leadership of the warship and the fire response team. The ship's former commanding officer, Capt. Gregory Scott Thorman, and former executive officer, Capt. Michael Ray received punitive letters of reprimand and forfeiture of pay. The former command master chief, Jose Hernandez, received a punitive letter of reprimand.The Consolidated Disposition Authority, which decides upon punishments, was led by Admiral Samuel Paparo, the commander of the U.S. Pacific Fleet.
Vice Admiral Richard Brown, the retired officer who was the commander of the U.S. Pacific Fleet at the time, received a Secretarial Letter of Censure from Navy Secretary Carlos Del Toro." More on Brown can be read here.
Seaman Recruit Ryan Mays remains pending investigation and court-martial.
Nile encroachers to face military trial
“Tightening these penalties is a good thing,” [Prof. Abbas] Sharaki said, but he criticized using military tribunals, “because this means that the civil law is not sufficient. Some of these violators could face injustice. The penal articles in the new irrigation law is a sufficient deterrent.”Fouad Abdel Nabi, a professor of constitutional law at Menoufia University, told Al-Monitor, “No citizen should be transferred to a military court, because the Egyptian constitution stipulates that a citizen be tried before his natural (civil) judge.”Abdul-Nabi continued, “There is no reason to refer any citizen who committed a violation to a military court. This is not an exceptional situation, and the state is currently in a state of stability since the president ended the state of emergency.”In October 2021, [President Abdel Fattah al-]Sisi lifted the state of emergency imposed in the country for years, declaring Egypt “an oasis of security and stability.”However, [Mohamed Nasr al-Din] Allam, the former water official, believes that resorting to military prosecution is an appropriate deterrent.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts.
Sunday, July 17, 2022
Military jurisdiction over civilians in Pakistan
All are of the view that amending powers of the Parliament is impliedly limited, and it cannot be extended over the salient features of the constitution of Pakistan. However, they refer to various methods for the identification of basic features. Further, they all discoursed that the power of judicial review over ordinary legislation may be extended over the constitutional amendment to secure the spirit of the constitution. In consonance, they also observed that being the custodian of the constitution, it can also strike down any constitutional amendment on the touchstone of repugnancy with salient feature doctrine and scheme of the constitution. In addition, four out of six experts state that establishing a parallel judicial system in terms of military courts is a violation of the principle of judicial independence and the prescribed criminal justice system. Moreover, they also emphasized that the constitutional guarantees incorporated in the constitution cannot be guaranteed before martial tribunals. However, two out of six opined that the formation of the military court is not a violation of the principle of judicial independence, and it only deals with the terrorists warning against the Federation. They cannot be dealt with before the ordinary judicial system. Further, their right to a fair trial has not been violated, and they cannot claim those rights which should be provided to the civilised society.
The research concludes with the submission that Pakistan being a democratic country, must ensure the provision of equal fundamental rights to all accused irrespective of classification. The suspect civilian terrorists have the constitutional right to be tried under the due course of law. There should not be any inappropriate interference in the judicial process by displacing a parallel judicial system. It should take counter-terrorism measures with a proper balance between two principles, i.e., principles relating to the security of the State and principles relating to human dignity and freedom. There is a need for specific reforms in the criminal justice system to eliminate the terrorism expeditiously within the framework of constitutionalism. And it shall build durable confidence of the nation over the system of administration of justice. Further, it shall be an appropriate response to combat terrorism by way of isolating, thwart, and upholding the spirit of the Constitution.
Thursday, July 14, 2022
Wednesday, July 13, 2022
Vacancies on the Central Military Tribunal in Spain
The failure of the government of Spain (PSOE and Unidas Podemos) and the political party, Partido Popular, to reach agreement has led to vacancies in the judicial branch. Dozens of judicial posts are remaining vacant because of the failure of the General Council of the Judiciary (CGPJ) to make appointments to the bench. At the end of June 2022, there were eight vacancies in military jurisdiction, which included the President of the Central Military Tribunal in Madrid. The interim President, General Francisco Luis Pascual Sarría, had to sign a government agreement about "the substitutions in the Military Tribunals" given the necessity of adopting an agreement due to the substitutions in the different military tribunals for 2022. The situation of provisional judges is only going to be aggravated in the coming months since two other members of the Central Military Tribunal will be leaving shortly. One member of the Tribunal will be leaving at the end of July and the second in October. With these departures the only remaining member will be the provisional President of the Tribunal.
NDAA floor amendments
[Louie] Gohmert amendment 448
Removes certain records from investigation reports for service members exonerated from wrongdoing under the following situations: Service member is subject to non-judicial punishment for the offense to which the record pertains; or is pardoned for the offense to which the record pertains.
Gohmert amendment 450
Grants SCOTUS the ability to review a service member’s writ of certiorari regardless of ruling from the Court of Appeals for the Armed Forces. The current standard is substantially more restrictive and grants more SCOTUS access to Guantanamo detainees than our veterans. A writ of certiorari is a request that the Supreme Court order a lower court to send up the record of the case for review.
Gohmert amendment 454
Grants unanimous jury verdicts for military courts to bring them in compliance with the SCOTUS decision in Ramos v. Louisiana that requires all verdicts to be unanimous under the Due Process provided by the Constitution.
What happens to civil party's claim when military court finds criminal case evidence too tenuous to convict?
here (Google Translate does a good job with this).
Tuesday, July 12, 2022
Monday, July 11, 2022
Will the military recognize the new president of Colombia on August 7th?
Gustavo Petro and Francia Marquez were elected the next President and Vice President of Colombia on June 19, 2022. This will be the first Leftist government in Colombia, an historically conservative country. Petro became a militant at 17, was arrested for possession of arms and spent 18 months in prison, where he was tortured by the military. He had been a member of the M-19 guerrilla group, an insurgency that made peace with the Colombian government in 1990.
Former M-19 members formed political parties and Petro was elected to the Chamber of Representatives, the Senate and most recently, Mayor of Bogota. He plans to reform the Armed Forces, which has been linked to mafias, to corruption and to serious violations of human rights. The most important violations revealed through the Special Justice for the Peace tribunal involved the killing of 6,402 innocent civilians, whom the Armed Forces claimed were insurgents, known as "false positives," to boost their alleged success in the internal armed conflict. Petro aims to "demilitarize" society by abolishing obligatory military service and affirming the primacy of civilian leadership over the military. He also plans to abolish military courts. The Colombian Armed Forces are comprised of 310,000 members of the military and 170,000 members of the police, and are all under the Ministry of Defense. Petro plans to move the police to the Ministry of the Interior, where they will be under civilian rule.
Not surprisingly such a major change has provoked a reaction from the Armed Forces. A lawyer from the Ministry of Defense revealed that retired members of the military were trying to incite active duty members to insubordination by not recognizing Petro as the new head of State on August 7, the date of his inauguration. Petro thinks that the right-wing orientation of the Armed Forces is due to their lack of education and seeks to upgrade their preparation by providing more university opportunities for the military.
Objections by some provinces to transfer of jurisdiction for sexual assaults from the military
The Canadian Press reports some instance of chicanery between the federal and provincial governments in the wake of the decision made by the new Defence Minister, the Honorable Anita Anand, to transfer jurisdiction for the investigation and prosecution of sexual assaults – including rape – to the provinces.
This decision is in full accord with the recommendations made recently by retired Supreme Court Justice Louise Arbour who was commissioned last year by the Canadian government to lead a comprehensive review into sexual misconduct and sexual harassment in the Canadian Armed Forces.
In her report tabled on May 20, 2022, the Honorable Louise Arbour recommended, inter alia, that Criminal Code sexual offences be removed from the jurisdiction of the CAF and be prosecuted instead exclusively by civilian criminal court.
RECOMMENDATION #5: Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity. Where the offence takes place outside of Canada, the Military Police may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity
In Canada, provinces prosecute both federal crimes and provincial offences
As an aside, pursuant to sections 91(27) of the Constitution Act, 1867 in Canada, the federal government makes criminal laws that apply across the country and sets the procedure for criminal court. This helps ensure that criminal matters are treated fairly and consistently across the country. However, pursuant to 92(14) of the Constitution Act, 1867, provinces and territories [Yukon, North West Territories and Nunavut] administer justice within their own jurisdictions in that they enforce the law, prosecute most offences, and provide assistance to victims of crime.
Therefore the Provinces and the Territories not the federal government prosecute Criminal Code offences such as sexual assaults.
Rationale for objecting to the transfer of jurisdiction from the military for sexual assaults
It appears that the objection to the transfer of jurisdictions comes from only two provinces: Ontario and British Columbia. It also appears to be related to an expectation of increased funding and additional resources. According to Justice Arbour given the relatively small number of such cases in an any given year, such an argument appears to be rather silly.
ARBOUR: “The number of [military] cases, spread across the country, with slightly higher volume around CAF bases and wings, and virtually none elsewhere, hardly justifies this refusal to enforce the law.”
One sure way to end this political tug-of-war between the two levels of government is to simply change the law by adding “sexual assaults” to section 70 of the National Defence Act . Section 79 lists the offences which are not triable by a court martial. Such a legislative change would provide no escape to the recalcitrant provinces to accept responsibility to prosecute sexual assaults offences committed by military personnel within their boundaries.
I for one have been arguing for such a transfer for at least the past decade.
Time to act is now.
Saturday, July 9, 2022
Junior ROTC and sexual abuse of teens
But a New York Times investigation — which included an examination of thousands of court documents, investigative files and other records obtained through more than 150 public disclosure requests — has found that the program has repeatedly become a place where retired military officers prey on their teenage students.
In the past five years, The Times found, at least 33 J.R.O.T.C. instructors have been criminally charged with sexual misconduct involving students, far higher than the rate of civilian high school teachers in jurisdictions examined by The Times. Many others have been accused of misconduct but never charged.
Judicial review of commanders' decisions barred under Ukrainian martial law and in combat situations
"Failure to comply with an order or disobedience of a soldier to an order of a commander (chief), committed in martial law or in a combat situation, can entail not only grave consequences, but also causing death to military personnel or other persons and the civilian population, their capture, or even causing damage to the national interests of Ukraine," the explanatory note says.
Therefore, Article 151 of the Code of Administrative Procedure of Ukraine is supplemented, which, among other things, contains a list of cases when the court cannot suspend the decision.
This list is supplemented by a clause stating that it is not allowed to secure a claim by suspending an order from a commander (chief) given to a serviceman under martial law or in a combat situation.
According to the explanatory note, the purpose of the bill is to ensure the unconditional execution by military personnel of the lawful orders of commanders (chiefs) given under martial law or a combat situation.
Friday, July 8, 2022
The Right to a Fair Trial: Sexual Offences in the Military Justice System, 3 R. of L.J. 24 (2022). The author argues that the independence of the British Court Martial is open to question. Has she made her case?
Practicing Military Law as a Civilian: An Ethics CLE Presentation
Thursday, July 7, 2022
Good order and discipline: limits of free speech
here about whether Canadian military justice should be cut back even more than retired Justice Louise Arbour has recommended--and how likely such a haircut would be (hint: not very).
Monday, July 4, 2022
The Brownout Strangler
Leonski is the first and only citizen of another country to have been tried and sentenced to death in Australia under the law of his own country.
Although Leonski's crimes were committed in Australia, the trial was conducted under American military law. Leonski confessed to the crimes and was convicted and sentenced to death at a general court-martial on July 17, 1942. American general Douglas MacArthur confirmed the sentence on October 14, and a board of review, appointed by MacArthur, upheld the findings and sentence on October 28. General Court-Martial Order 1 promulgated Leonski's death sentence on November 1. In a departure from normal procedure, on November 4, MacArthur personally signed the order of execution (in subsequent executions this administrative task was entrusted to MacArthur's Chief of Staff, Richard Sutherland). Leonski was hanged at HM Prison Pentridge on November 9.
Leonski's defense attorney, former Colorado lawyer Lieutenant Ira C. Rothgerber, Jr. (1913–1992), attempted to win an external review, even from the U.S. Supreme Court, but was unable to do so. Rothgerber was likewise court-martialed on MacArthur’s orders for insubordination in questioning the Army’s handling of the case.
Court-martial docket in Nigeria
Sisi to civilian authorities: mind your own business
here on an Egypt government edict. Excerpt:
“The defence ministry is the sovereign body of the country, and its officers enjoy immunity which prevents any civilian body from interference in their activities,” the document said.
“Anyone who challenges this immunity will be placed under immediate inspection and could face military prison - whether from within the civilian police, intelligence agencies or otherwise.”
“This does not mean that anyone is above the law, rather that military officials will be ruled by their own military courts and judges,” read the edict, defending the new rules.
The only circumstances in which civilian law enforcement may intervene are cases of murder and drug. "But even in these rare cases, high-ranking members of the army cannot be arrested while investigations may be made. Information must then be passed to the military in such cases."
Sunday, July 3, 2022
Ireland, defence forces and sex offender registration
No Army abusers put on sex register in two decades. July 3, 2022.The Defence Forces have not referred anyone convicted of sexual assault or rape in a court martial to the sex offenders register during the 20 years it has been in operation.
Army chiefs admit they do not have full records of court-martial convictions for sexual assault or rape since 2002.
. . .
The Army's credibility on how it treats victims of sexual violence is already under strain in the wake of the searing Women of Honour documentary by Katie Hannon that was broadcast on RTÉ radio last year.