Good luck with those proposed changes to the Manual for Courts-Martial

According to the October 19, 2022 Federal Register notice, comments on the recent proposed changes to the Manual for Courts-Martial must be received no later than December 19, 2022. The Joint Service Committee on Military Justice (JSC) has advised that questions from members of the public should be submitted no later than two weeks before the deadline for comments. 

Global Military Justice Reform had proposed to conduct a Town Hall to discuss the changes, but the JSC has declined to participate. The JSC also advises that it does not have a specific summary of the voluminous changes. 

There will be a public meeting at the Court of Appeals for the Armed Forces in Washington, DC on November 16, 2022, at which it would be nice if someone from the JSC would summarize the proposed changes orally and respond to questions, although the Federal Register notice says the purpose is only to receive comments.

If you have any questions or comments on the proposed changes, please post them here using the Comment function and feel free to respond to others' comments or questions using the Reply function. That way, readers will be able to share thoughts and questions for the benefit of all concerned. Of course, without a summary from the JSC, it may be like looking for a needle in a haystack to find aspects of the proposed changes that merit comment.

Flashback to Canadian military justice

On 26 October 2022, the Globe and Mail ran a front-page story about former members of various armed forces who joined the 'International Legion for the Defence of Ukraine'.  This formation was formed relatively soon after the Russian invasion of Ukraine (or, perhaps more accurately, the most recent Russian invasion of Ukraine) in February of this year.  Some commentators have likened it to the 'International Brigades' of the Spanish Civil War.  Canada's contribution was the MacKenzie-Papineau Battalion, named after the leaders of the 1837 'rebellions' in Upper and Lower Canada, respectively.  However, most participants in the International Brigades generally identified as socialists or even communists, who fought with the Republican forces against the fascists in Generalissimo Francisco Franco's Nationalist regime.

As Mark MacKinnon of the Globe and Mail wrote in his report, "Inside the motley collection of foreign adventure seekers, criminals and con artists who fight for Ukraine" (the online version is entitled "Ukraine’s Foreign Legion offers a shot at redemption for fighters from around the globe"), it is clear that many of the 'international' fighters who joined the International Legion do not have communist or socialist beliefs.

Since the article was written by a Canadian journalist for a Canadian newspaper, it is not surprising that a former, and, arguably, infamous, former Canadian soldier was featured in the lead paragraphs.  Mr. MacKinnon began his in-depth report by featuring Robert Semrau, a former officer of the Royal Canadian Regiment (RCR) who was charged and tried by court martial over a decade ago for his actions in Afghanistan in late 2008.  [And, by way of full disclosure, I was on that tour, in the same organization, but was not directly involved in the Code of Service Discipline process.]

The then-Captain Semrau was a Mentoring Team Leader with the Canadian Operational Mentoring and Liaison Team (OMLT) deployed to southern Afghanistan, and assigned to assist the 1st (Hero) Brigade of 205 Corps of the Afghan National Army (ANA).  While the OMLT was based principally in the province of Kandahar, it sometimes operated further afield.  And 14 years ago, in October 2008, the then-Captain Semrau was with his small mentoring team, accompanying the ANA company they were mentoring, in Helmand Province.

While I do not propose to delve into the details of the allegations here, at one point during the operation, it was alleged that Semrau shot a seriously wounded and unarmed belligerent - i.e., a belligerent who was hors de combat.  The matter was eventually reported to Canadian leadership by an Afghan 'interpreter', which precipitated an investigation by the Canadian Forces National investigation Service (CFNIS).  Semrau was eventually charged with multiple offences, including: second degree murder (contrary to s 235 of the Criminal Code); attempt to commit murder using a firearm (contrary to s 239 of the Criminal Code); negligent performance of a military duty (contrary to s 124 of the National Defence Act (NDA)); and, disgraceful conduct (contrary to s 93 of the NDA).  The charges under the Criminal Code were laid pursuant to para 130(1)(b) of the NDA, which permits offences under other acts of Parliament, when arising outside Canada, to be charged and prosecuted under the Code of Service Discipline.

NB: Semrau was not charged with a grave breach of the Geneva Conventions under Canada's Crimes Against Humanity and War Crimes Act, SC 2000, c 24.  So, while some news media at the time may have speculated on whether his actions constituted a war crime, none of the offences established under the Crimes Against Humanity and War Crimes Act were charged or prosecuted in this matter.

Semrau was tried by General Court Martial, and was found guilty of disgraceful conduct.  He was subsequently sentenced by the presiding military judge, Lieutenant-Colonel (LCol) Jean-Guy Perron (a former infantry officer himself): R v Semrau, 2010 CM 4010.  LCol Perron's sentencing judgment is an object example of clear, concise, and reasoned application of mitigating and aggravating factors in a politically sensitive matter that was the subject of significant scrutiny and speculation in the national news media.

Semrau was sentenced to Dismissal from Her Majesty's Service and reduction in rank to Second Lieutenant.  The sentence is noteworthy, as Mr. MacKinnon reported in his recent newspaper article that Semrau was "... dishonourably discharged from the Canadian military ...".  While that terminology is frequently used by news media, it is also incorrect, and is very likely the product of the influence of American movies and television.

The terms 'discharge' is not used to describe any release of a CF member under art 15.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), whether voluntary or involuntary.  Where a CF member is released under 'item' 3 (medical), item 4 (voluntary), or item 5 (service completed), the term used in the notation of the member's record of service is "Honourably Released".  If the CF member is released under item 2 (unsatisfactory service) the term used is "service terminated".  When a CF member is released under item 1 (Misconduct), as in the case of Semrau, the notation will be “Dismissed with Disgrace for Misconduct” or “Dismissed for Misconduct”, as applicable.  In Semrau's case, it was the latter.

For a greater explanation regarding 'release items', see: "A Word or Two on Release Items in the Canadian Forces", 18 January 2021.

Should this murder case be in a military court?

A Ugandan officer stands accused of the off-base murder of his wife, a civilian. Where should he be tried?

NPR asks: is it time for reform?

In the wake of the Bonhomme Richard arson acquittal, National Public Radio's All Things Considered has run this piece by Steve Walsh, asking whether it is time to reform the American military justice system. NIMJ president Rachel VanLandingham and Protect Our Defenders president Don Christensen vote Aye. She says: "I fully believe that the Navy needs to have its serious cases, its felony-level cases prosecuted by the Department of Justice and not by the Navy, just because of its inexperience." He says:" I know [NCIS] got the TV show, but should we be relying on them when we have the Federal Bureau of Investigation that can investigate these crimes or the local investigators can investigate these crimes?"

Argentina 1985

 The film "Argentina 1985", an Argentine film that opened in the U.S. at the end of September 2022 and is available for streaming on Amazon Prime tells the story of Julio Strassera, the Federal Prosecutor, and Moreno Ocampo, his assistant, in the civilian trial of the military juntas in Argentina.  Ricardo Darín, the famous Argentine actor, plays a very convincing Strassera, a man who did not seek this role in life but is also unwilling to not rise up to fulfill it to the best of his ability.

President Raúl Alfonsin appointed Strassera to prosecute the 9 members of the military juntas for crimes against humanity and to have them tried by a civilian appeals court.  The military defendants refused to accept the jurisdiction of the court that was imposed upon them and demanded to be tried by a military tribunal.  The film depicts Strassera's concern that the military will resort to a coup d'état to prevent the proceedings from taking place and there are multiple death threats against him and his family.

The legal team organized by Moreno Ocampo put together 709 cases to be presented to the Tribunal out of the approximately 9,000 that the military was responsible for during the 7 years of the "dirty war" and the testimony and evidence of the military's culpability for torture and forced disappearances was overwhelming.  It was nothing short of incredible that the civilian legal team was able to convince the Federal Appeals Court to send former members of the military dictatorship to prison.

For your military justice bookshelf

Wing Commander (ret) U C Jha and Kishore Kumar Khera have a new book out, Colonial Footprint in the Indian Military Legal System : Military Law: Then, Now and Beyond. From the Amazon blurb:

The Army Act (1950), the Air Force Act (1950) and the Navy Act (1957) provide a different legal framework for governing three wings of the Indian Armed Forces. These laws are derived primarily from the military laws promulgated by the British to govern the Native Indian Army and specifically after the Great Rebellion in 1857, its provisions were made more severe to serve the purposes of colonial masters. Even 75 years after Independence, several legal provisions followed in the Indian Armed Forces have a colonial footprint. The civilian criminal justice system in India, which has been modernized on the progressive principles of human rights, has been unjustly kept away from the military domain. The wind of change blowing over the military law world over has not permeated the closed prescient of the Indian military justice system. Since 2014, the government has repealed more than 1,500 old and obsolete laws; most of these were remnants of the British Era. However, the military legal system of the Victorian era is yet to see any change. With changing character of war forcing modernization of the three wings including a planned integration, there is a need to have a modern common law for the Indian Armed Forces. It must be based on our constitutional guarantees, changing composition of the armed forces, progressive principles of justice and human rights norms. This book takes a 360 view of the evolution of the Indian Military Legal system and proposes a pragmatic path ahead.

Besides the armed forces and paramilitary personnel, this book will be of interest to parliamentarians, jurists, bureaucrats, and members of civil society who are associated with justice and accountability.

Much of the above can also be said of other common law countries.

New Zealand's efforts to root out extremists in the Defence Force

RNZ reports here on New Zealand's efforts to root out extremists in the Defence Force. Excerpt:

One man faces court-martial on charges that include being a member of right-wing groups Dominion Movement and Action Zealandia.

"With respect to New Zealand Defence Force personnel with extremist views, since 2020 there have been 16 in-depth inquiries into current and prospective personnel whose conduct or alleged association with a particular group did not align with the values and behavioural expectations of the NZDF," said a spokesperson.

"A definition for extremism does not exist in NZDF policy, the Defence Act 1990, or any New Zealand legislation. This response refers to policy, Defence Force Orders, and processes which ensure that current and prospective members of the NZDF conduct themselves in alignment with expected values and behaviours. NZDF members are required as part of their security clearance requirements to report concerning behaviour. Members of the NZDF are also required to achieve and maintain a security clearance."

NZDF would not say how many of the 16 were still serving personnel.

St. Crispin's Day

Today's the day. Here's the great Mark Rylance giving the Band of Brothers speech.

Byline Times asks: was justice a victim of the war in Afghanistan?

An article was published on the Byline Times on 17^th October 2022 stating that new data shows how complaints against the UK military in Afghanistan were highly unlikely to be prosecuted. The data in question was that 94% of complaints from civilians were not prosecuted; on the face of it an alarming statistic. This arose from 115 cases between 2010 -2011 deemed serious enough for the Royal Military Police (“RMP”) to investigate of which 14 were referred to the independent Service Prosecuting Authority (“SPA). These statistics were backed by the anonymous complaints of a form RMP member who complained of obstruction and “regimental amnesia”.

The article then goes on to highlight two cases which it appears were significantly undercharged. One involving apparent sexual assaults on children dealt with summarily in theatre as conduct prejudicial to good order and service discipline, and another involving a stabbing which was dealt with an assault occasioning actual bodily harm at a Court Martial.

On the face of it, this is a picture of disgraceful failures by Her late Majesty’s Forces and the Service Justice System. However, when one looks more closely the article fails to properly contextualise the issues and also fails to raise significant questions about its “star" (anonymous) witness.

Firstly, the hurdle for referral to RMP is generally quite low, especially in war time when a CO (who might have other matters to deal with) can request the assistance of RMP with any investigation. The suggestion is there was some filtration process before cases reach RMP although no evidence of what that process was is offered. The fact of an RMP referral does not indicate the allegation has merit.

Secondly no thought is given to the general challenges of investigation, establishing identity of alleged perpetrators and victims, locating admissible evidence and establishing mens rea. This is before the service specific issues are dealt with, self defence takes on a very different character in an asymmetric conflict and to convict mistaken self defence must be ruled out, and the force must be shown to have been excessive (in an environment where automatic weapons and explosive devices are the norm). The realities of combatting an insurgency are also not considered when it comes the investigation. Obtaining forensics and undertaking finger tip searches would require a large area to be locked down with forces already heavily stretched and, at the relevant time, under equipped to deal with the IED threat. The authors presume that such an effort would possible and that commanders would willingly risk lives in pursuit of these investigations. Without knowing how reasonable were RMP’s suspicions or the gravity of the offences under investigation.

The anonymous source paints a more sinister picture of what might be considered prudent command decisions, suggesting commanders deliberately sent witnesses on R&R so as to be unavailable and denied RMP transport. If these allegations are true then they constitute an offence of perverting the course of justice, an offence which carries a maximum sentence in the UK of life imprisonment. It is also an offence without any statute of limitations and for which (with the leave of HM’s Attorney General) retired service personnel can face Court Martial for. This begs the immediate question then, why is the anonymous source going to journalists rather than to RMP or even the Ministry of Defence Police? A closer look at one of the allegations raises a further question. A soldier on R&R remains subject to service discipline. RMP have units in the UK and Germany who could have been asked to question witnesses on R&R if the matter was time sensitive or they could be questioned upon their return. In short if this was an attempt to pervert the course of justice, it would only be effective due to lack of RMP effort. Therefore, the reader may wish to treat these anonymous allegations with some caution.

This is not to say that the article does not raise a serious issue and it is one that all ISAF forces have struggled with, as is demonstrated by the on going investigations into the Australian SAS. Balancing the needs of investigators with those of commanders is always difficult. Finding that balance is vital if the nations involved wish to remain “the good guys”.

The cases cited in the article which reached conviction do suggest failings by the Service Justice System. On the face of it two sexual assaults were dealt with summarily rather than being referred to the RMP and SPA. The article gives few details but from the facts it can be asserted that such an offence would certainly be referred to RMP, indeed the commander who did not refer it would themselves commit a service offence. However, what was not clear is what evidence RMP could have obtained? Were the children identified? Was their account taken? Again, the problems of investigating in combat are not considered. A similar evidential challenge potentially emerges in the case of Gdsm Cook who was convicted of piercing the skin of a boy with his bayonet. It may have been that the medical evidence to prove grievous bodily harm was missing, leaving prosecutors no choice but to prosecute ABH; we do not know. Byline links to a Guardian article who quotes the boy’s father but his (non expert) account would not suffice to prove the level of injury (although it would be sufficient to prove the fact). No such challenges existed in the case of Marine A who was captured on camera shooting his victim. In that case the SPA secured a conviction.

This is an article which raises serious issues which need to be reflected upon before HM Forces ventures again into expeditionary warfare. However, it does not properly address the challenges posed to investigators by the fog of war and the risks of combat. That’s a great pity because a serious subject is reduced to sensationalism which does not stand up to much scrutiny.

Why is this case being tried in a military court?

Civilians accused of having murdered the Italian ambassador to the Democratic Republic of Congo, his driver, and an Italian police officer in 2021, have objected to trial in a military court. According to this account:

Lawyer Joseph Amzati argued on Wednesday that the military court lacked the jurisdiction to try the defendants because they are civilians.

But prosecutor Lieutenant-Colonel Joseph Malikidogo said a military tribunal was appropriate because the accused had allegedly used "weapons and munitions of war" in the attack.

He added that releasing the defendants would be scandalous because of the "indescribable gravity" of their alleged crimes.

Human rights principles strongly disfavor the trial of civilians by military courts. 

Naval justice and the Battle of Toulon

Admiral John Byng, RN

Here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, there was a frisson of excitement at the following excerpt from an online article about the Battle of Toulon (1744). Under the heading of "aftermath," the article reports:

Tactically, the battle was indecisive, but France and Spain both made significant strategic gains as a result. The escaping Franco-Spanish fleet was able to deliver troops and supplies to the Spanish army in Italy, decisively swinging the war there in their favour. The Spanish admiral Juan José Navarro was created Marquess of Victory after his conduct of the battle. The battle was followed by a French declaration of war on Britain and Hanover in March. In May the French also declared war on Maria Theresa and invaded the Austrian Netherlands, having abandoned their earlier plan to invade Britain.

These were significant consequences, resulting from the failure of the British fleet to bring a decisive action against a foe of inferior number. This was widely remarked on in Britain, leading to the House of Commons petitioning King George II for a public enquiry. This was held, and a dozen captains were tried by court-martial, seven were cashiered for failing to do their "utmost" to engage the enemy and support the already-engaged ships, as required by the Articles of War (two were acquitted, one died before trial). [Rear-Admiral Richard] Lestock was also tried, but was able to place the blame on [Vice-Admiral Thomas] Mathews, and with the help of powerful supporters in government, was acquitted and offered further employment. Mathews was also tried by court-martial in 1746, on charges of having brought the fleet into action in a disorganised manner, of having fled the enemy, and of having failed to bring the enemy to action when the conditions were advantageous. In his defence it was shown that he had fought bravely, but in June 1747 the court judged the charges were proven, and Mathews was cashiered (dismissed from the service).

The judgements were unpopular with the public, with a 1758 history declaring:

The nation could not be persuaded that the vice-admiral ought to be exculpated for not fighting, and the admiral cashiered for fighting.

The court-martial process was hampered by interference from politicians and civilian courts, so in 1749 Parliament amended the 1661 Articles of War to enhance the autonomy of naval courts. It also amended the section that read:

Every Captaine and all other Officers Mariners and Souldiers of every Ship Frigott or Vessell of War that shall in time of any fight or engagement withdraw or keepe backe or not come into the fight and engage and do his utmost to take fire kill and endamage the Enemy Pirate or Rebells and assist and relieve all and every of His Majesties Ships shall for such offence of cowardice or disaffection be tried and suffer paines of death or other punishment as the circumstances of the offence shall deserve and the Court martiall shall judge fitt.

Article XII in the 1749 Articles of War would instead read:

Every Person in the Fleet, who thro’ Cowardice, Negligence or Disaffection, shall in Time of Action withdrawn, or keep back, or not come into the Fight or Engagement, or shall not do his utmost to take or destroy every Ship which it shall be his Duty to engage, and to assist and relieve all and every of his Majesty's Ships, or those of his Allies, which it shall be his Duty to assist and relieve, every such Person so offending and being convicted thereof by the Sentence of a Court Martial, shall suffer Death.

This change would lead to the execution of Admiral [John] Byng in 1757.

Right to counsel in Ugandan courts-martial

Following is the abstract of a Makerere University master's thesis prepared by Archiles Angelo Bwete:

Military Justice is generally viewed as a travesty of justice and the Right to Legal Representation as well is considered as a myth for accused persons facing trial in military courts. The court members, prosecutors and all staff of the court are viewed as one body subject to the same chain of command and the decorum of military discipline. The rationale for embarking on this research and writing this dissertation was to interrogate the efficacy of the Right to Legal Representation in Uganda’s Military Courts. This dissertation examines the nature and scope of the Right to Legal Representation under International Human Rights Law. It also examines the extent to which the Right to Legal Representation is realised and the challenges that hinder its realisation in military courts in Uganda. This dissertation establishes that efforts are in place to provide for the Right To Legal Representation in the Division Court Martials, General Court Martial and Court Martial Appeals Court. It also finds that the Right to Legal Representation is in abeyance in the Unit Disciplinary Committees, Summary Trial and Field Court Martials. This thesis studies the extent of enjoyment of the Right to Legal Representation in military courts in other jurisdictions specifically from Malawi, Tanzania and the Netherlands. This is intended to draw lessons from other jurisdictions. The research methodology utilized was qualitative research methods in gathering, interpreting and analysing data. Interviews were conducted on key informants that interact with military courts. The dissertation identifies gaps that require to be addressed and renders recommendations that could be adopted to enable military courts in Uganda to adhere to the Right to Legal Representation under the International Human Rights Law. This research was guided by the settled principle that human rights are universal, inalienable, indivisible, interdependent and interrelated. The Right to Legal Representation in military courts was contextualised in the general body of human rights specifically the general Right to a Fair Trial. The Right to Legal Representation cannot be fully realised without ensuring minimum guarantees to ensure that the Advocates appear before independent and impartial military courts.

Obiter dictum in Australia

In Kantibye v Chief of Army (No 2) [2022] ADFDAT 4, the Defence Force Discipline Appeal Tribunal of Australia today set aside a conviction for indecency by one trainee against another on the ground that the Defence Force Magistrate had misdirected himself on a key point of law.

27    Nonetheless, had this been a trial by Court Martial, in which the reasons of the tribunal of fact are inscrutable, the appeal would have failed: the direction as initially stated by the DFM and set out above was not on its face obviously erroneous. However, in a judge alone trial, the appellate Court is able to see how the judge (or here, the DFM) applied the direction and whether in fact it was complied with. It is one thing to set out a litany of directions at the outset of reasons for decision; what is really of importance is whether the later reasoning and analysis of the evidence reflects obedience to those directions. Here, as has been noted, the DFM said: “I cannot say that I found the accused as impressive a witness as the complainant” [T401.10-11], and that he was “less than convincing” [T401.13-14]. After explaining his three reasons for that view, he concluded that the appellant’s “evidence was unconvincing” [T402.23]. The learned DFM then immediately proceeded: “accordingly, I set the evidence of the accused to one side…” [T402.23-24]. The DFM did not address the crucial second question, namely whether the appellant’s evidence, though unconvincing, nonetheless as a matter of reasonable possibility might be true, or, to use the words of the DFM’s direction, whether “it leaves me in a state of reasonable doubt”. The pre-condition to embarking on the third limb enquiry is not merely that the accused’s evidence is unconvincing, but that it is disbelieved in the sense that it could not as a matter of reasonable possibility be true. The learned DFM did not undertake that step. The DFM did not state that he disbelieved the appellant, nor that his evidence could not as a matter of reasonable possibility be true. This is not a merely formulaic matter: it is an important element of judicial discipline to state “I disbelieve the accused’s evidence” or “the accused’s evidence could not as a matter of reasonable possibility be true”, because it requires the judge's mind to address that critical issue, which is fundamental to the operation of the burden and standard of proof in matters involving criminal conviction.

Having granted the appeal, the court added some important advice to military leadership:

30    One further matter, however, warrants comment. The events the subject of and surrounding the charge took place in barracks accommodation at Bandiana. The participants and witnesses were trainees on their initial employment training. They were, at least generally speaking, young soldiers, who had only just completed their recruit training at Kapooka. The environment, in which the complainant and the appellant had been able to have consensual intercourse in her barracks room on multiple occasions, was one which the complainant described in her diary as follows:

So, [initial employment training] is so much better than Kapooka, holy shit. I really like my course mates!! I don’t have any room mate which is great too. … Frat is still a thing here but not policed like at all. ….

31    Observations have been made elsewhere about the apparent absence of the supervision of soldiers in their lines, which is traditionally the immediate responsibility of non-commissioned officers, subject to the overarching scrutiny of an appointed duty officer. In the operational context, the insidious effects of an absence of supervision and inspection of the lines and personnel was noted by the IGADF Afghanistan Inquiry [Afghanistan Inquiry Report, Part 3, Chapter 3.03 at [51]]. In the present case, adherence to traditional practices in respect of supervision of junior soldiers in their lines might well have averted any incident.

Is respect void for vagueness?

The Supreme Court of Mexico met two days ago to consider whether the insubordination provision of art. 283 of the Code of Military Justice is unconstitutional because it is too vague. Details here courtesy of La Jornada.

No standing in Spain

Sorry, captain, but just because you received a major decoration decades ago doesn't give you standing to sue over the issuance of a military decoration to a civilian business leader. Thus spake the Supreme Court of Spain. Details here.

For your military justice bookshelf

For German-speakers, there is a new book out on desertion in the Wehrmacht during World War II, by Stefan Kurt Treiber. A review of the book by David Harnsville in German History can be found here.

Proposed changes to the Manual for Courts-Martial

Proposed changes to the Manual for Courts-Martial and accompanying explanatory materials have been posted to the website of the Joint Service Committee on Military Justice and can be found here. The Federal Register notice can be found here.

The government-private sector revolving door

 The Central Military Court in Madrid now has only one member, the interim president, General Francisco Luis Pascual Sarria.  On October 8, 2022, the other member on the Court went into retirement, General Rafael Eduardo Matamoros Martinez, as a third member had done earlier, in July, General Alfredo Fernandez Benito.

The press learned that General Rafael Matamoros (photo) has begun to work with one of the principal law firms in Spain that dedicates itself to Military Criminal Law.  The Suarez-Valdez law firm is headed by the lawyer Antonio Suarez-Valdes.  It is worth pointing out that General Matamoros reached the highest level in the military legal field, equivalent to the rank of Division General.

General Matamoros was not required to request authorization to join the law firm from the Ministry of Defense.  The former member of the Central Military Court was President of that body but has become an independent lawyer since his retirement because of age.  The law firm concluded that his retirement put an end to his professional services for the Armed Forces and he is no longer subject to the general regime of rights and duties of the members of the Armed Forces nor the criminal laws and military discipline.  Consequently he did not need to seek authorization from the Ministry of Defense to carry out legal activities in collaboration with the Suarez-Valdez law firm.

General Matamoros issued many judgments when he was on the Court and military sources question whether there is a conflict of interest in a member of the Central Military Court joining the law firm in which Antonio Suarez-Valdez was the lawyer defending one of the parties.

It was explained by the Suarez-Valdes law firm that none of the parties -- not the firm nor the General -- are considering the professional collaboration of Rafael Matamoros in matters in which he played a role while a member of the Central Military Court, since that is prohibited under Spanish law.

Another misuse of courts-martial in Uganda

This time it involves a civilian who was prosecuted in a court-martial and sentenced to two years in jail for wearing a borrowed military uniform to impress his lover. Details here.

Honk if you think this use of military jurisdiction violates human rights principles.

Prof. VanLandingham on extending the federal pot possession pardon

Prof. Rachel VanLandingham argues here, in The Hill, that President Joe Biden's pardon of federal convictions for simple possession of marijuana should be extended to those punished by court-martial.

Strengthening military justice in the G5 Sahel countries

The European Union Regional Advisory and Coordination Cell for the Sahel reports on a program to increase the effectiveness of military justice in the G5 Sahel countries. Excerpt:

“The Support Program to the Legal and Provost Components of the G5 Sahel (ACLEP-G5) for a better functioning of military justice in the G5 Sahel countries is officially launched”.

These words pronounced by the Executive Secretary of the G5 Sahel, Eric Yemdeago Tiare, on October 13 in Nouakchott, Mauritania, in the presence of representatives from Burkina Faso, Chad, Mauritania and Niger, and international partners committed to security and peace in the Sahel, kicked the ball started for the work of a Steering Committee.

The ACLEP project (Support for the Legal and Provost Components of the FC G5S) is funded by the EU and implemented by Expertise France. The objective of the project is to reinforce the fight against impunity, as well as the ability of the judicialisation of the G5 Sahel Joint Force.

The judicialisation developed by the FC G5S means transmitting to the judicial authorities the findings of operations conducted by the military force (captured individuals, collected evidence, seizures, imagery, etc.) through duly developed procedures, in accordance with national legislation, and strictly respect for human rights and International Humanitarian Law.

The project will make it possible to provide legal follow-up to military operations and to strengthen the operational capacities of the prevotal units, supporting the work of police advisors (CONSPOL) and legal advisors (CONSJUR) of the FC G5S, enhancing the coordination and the cooperation between the different national judiciary actors.

Canadian Forces and COVID-19 vaccination

Canadian Press reporter Lee Berthiaume recently published an interview with the Chief of the Defence Staff, General Wayne Eyre, regarding the evolving policies of the Canadian Forces (CF) regarding vaccination against COVID-19.

But the interview gives rise to further questions, including:

If this was such a big 'disciplinary' issue, and if 'disobedience of a lawful command' was such a threat to the 'habit of obedience' of CF personnel and the discipline, efficiency, and morale of the CF, then why were no charges laid under s 126 (Refusing immunization, tests, blood examination or treatment) or s 83 (Disobedience of a lawful command) of the National Defence Act (NDA)?

And if the issue was more of failure to comply with a 'condition of service' (albeit, one retrospectively imposed) then why do the CDS and other senior leaders keep characterizing this as a disciplinary issue involving the 'habit of obedience'?

It looks like the CF personnel affected by these decisions will have to wait for their grievances to be resolved.

In 3 to 5 years.

If they are lucky.

Second International Military Justice Forum to be held in South Africa next year

Mark your calendar: the Centre de Recherche des Écoles de Saint-Cyr Coëtquidan, in collaboration with the Faculty of Military Science of Stellenbosch University, will host the second International Military Justice Forum at Stellenbosch, South Africa, on November 8-9, 2023. The Call for Papers can be found here. The deadline for proposals is March 15, 2023.

Dreyfus case documents to be auctioned

Documents from Captain Alfred Dreyfus's notorious court-martial are to be auctioned, according to this report in the Jerusalem Post. 

Radical changes in Somalia, but what are they?

We are told here that Somalia's federal government is making radical changes in its military courts, but the only specific is that a new official (who had been fired by an earlier Somali president) has been put in charge as Chairman of the Supreme Court of the Armed Forces.

Sentences reduced in war crimes case

The Monitor reports here on sentence reductions (and an appellate acquittal) in cases arising from Ugandan peacekeeping operations in Somalia. Seven civilians were killed. Excerpt:

According to court, an analysis and consideration of such factors would remove the case from those rarest of the rare cases which call for a death penalty. 

“The trial court might have been influenced by the reaction or riots that followed the murder of the victims to impose the death sentence,” Justice Turyamubona added.

According to the court, a 20-year jail sentence for Capt Asiimwe and Cpl Bwambale was appropriate and when the eight months and 29 days they have spent detention are deducted, it means the two convicts will serve 19 years and three months in prison.

Court also found that a 16-year jail sentence was appropriate for Cpl Ichumar and Pte Tushemererwe who were simply following orders from their superiors at the time the offence was committed.

But this did not take away the liability of the offence given that all soldiers participated in committing the offence, according to the evidence produced before court.

“We find that the trial court found that the prosecution adduced sufficient evidence to prove all the ingredients of the offence of murder and we also find that the court properly evaluated the evidence in the case in respect of appellant 1,3,4 and 5 participated in the murder,” the court ruled.

The Invisible War and an imperfect bureaucracy

Stars and Stripes highlights the case of a reserve Soldier kicked out of the service, even after a separation board voted to retain him. Practitioners in military justice know that almost without exception, a separation board’s decision to retain is not reversible.

In this case, a female subordinate reported Staff Sergeant (SSG) Ryan Neville touched her inappropriately on two occasions. In response, SSG Neville’s commanding general issued a letter of reprimand, then ordered it placed in the NCO’s permanent personnel file. The command also elected to send SSG Neville to a separation board instead of a court-martial, as often happens in the reserves in cases with relatively less serious sexual misconduct charges. 

The government’s burden of proof at a separation board is a preponderance of an evidence, making such a case easier to prove than it would be at trial. Yet the article reports that the board unanimously voted for retention. Even though his command could no longer separate SSG Neville, the reprimand led Human Resource Command to involuntarily separate SSG Neville through the Qualitative Management Program Selection Board process. 

The article cites to the death of Army Specialist Vanessa Guillen in April 2020 at Fort Hood, Texas, as background for SSG Neville’s case. My formative years as a JAG prosecutor reference instead The Invisible War, an Oscar winning documentary that was screened for Soldiers and civilians at my base, and which led to angry questions and answers from audience members afterwards. 

In 2012, it was hard then to convince many audience members of the efforts the Army was making to combat sexual assault and harassment. And the 2020 Fort Hood Report shows that those efforts are incomplete, with sometimes tragic results. But in a large bureaucracy filled with imperfect people following rules written by fallible leaders, corrections for these failures can sometimes lead to results that offend basic concepts of fairness and due process.

May 2022 Arbour Report - Sexual misconduct in the Canadian military.

 The former justice of the Supreme Court of Canada, the Honorable Louise Arbour presented her Report of the IndependentExternal Comprehensive Review on May 20, 2020. This is 145 days ago.

In her Report, Justice Arbour noted that the “Government has committed to providing Parliament with an implementation plan for [her] recommendations and providing regular updates so as provide both internal and external audiences visibility on progress." She also noted that the implementation of her recommendations will depend on a combination of political will, capacity and accountability. 

At the close of her report, Justice Arbour recommended (See: Recommendation 48 below) the appointment of an EXTERNAL AUDITOR (a sort of Inspector General) monitoring and reporting on compliance with her recommendations, in particular but not limited to “the move of criminal sexual offences to civilian police and prosecution authorities and harassment as well as discrimination to the Canadian Human Rights Commission.” 

                    Recommendation #48

The Minister should immediately appoint an external monitor, mandated to oversee the implementation of the recommendations in this Report and other external recommendations that she accepts.

The External Auditor would provide monthly updates to the Minister and bi-annual public reports to insure ongoing accountability for DND and CAF leadership and challenging the insularity with which senior leadership has, to date, reacted when faced with the recommendations from outsiders.

ACTION TAKEN TO IMPLEMENT THIS RECOMMENDATION

	Underway	Completed	No action taken
By Parliament:			√
By Government:			√
By Department National Defence:			√

The pot possession pardon

The White House says it doesn't apply to UCMJ offenses. Should it?

Hey, Sarge, where's my overtime check?

Two Irish military unions have filed with the European Committee of Social Rights, seeking overtime on the same basis as other public sector personnel. Details here. Watch this space.

Commonwealth military justice reform

Watch for military justice reform across the Commonwealth. Secretary-General Patricia Scotland has it on her agenda, according to this announcement. Excerpt:

“The Commonwealth Secretariat has a long history of promoting access to justice and building the institutional capacity of justice systems. For decades, the Secretariat has provided technical assistance to train judges, draft legislation, adopt technology and more. Military Justice is evolving, with reforms in recent years within and beyond the Commonwealth.  Our objective is to support the transformation of military justice systems across the Commonwealth to ensure that they reflect international norms and standards, including international humanitarian law and international human rights law to improve access to justice and delivery of justice which of course is the ultimate goal of the law.”

The objectives of the pan-Commonwealth project include:

• Establishing a working group of Judge Advocates General or their equivalents
• Organising pan-Commonwealth military justice fora for Judge Advocates General and other experts; and
• Drafting Commonwealth Model Military Justice Principles

Speaking about the importance of the Military Justice Transformation Project, Francisca Pretorius, Head of OCCJR [Office of Civil and Criminal Justice Reform] said:

“The Commonwealth Secretariat is uniquely positioned to implement this project, and to become the preferred partner for military justice reform in the Commonwealth because Commonwealth member countries’ legal systems are either founded on English common law or the common law system is applied with other legal systems, such as civil and/or customary law. Through this common foundation, the Commonwealth can facilitate the sharing of experience, information, and knowledge.”

As part of the event, many attendees committed to supporting the project and going forward, the OCCJR team will be relying on their expertise to draft model laws for the Caribbean and to roll out the larger pan-Commonwealth project.

Decision to initiate Court Martial against a Colonel of the Indian Army set aside by Armed Forces Tribunal

In a decision that has triggered quite a debate in military circles, the Armed Forces Tribunal (AFT) has quashed the decision of military authorities to initiate disciplinary action by way of a Court Martial against a serving Colonel for tampering with gradings of professional courses in his record of service.

The officer, of the rank of full Colonel, was issued a Show Cause Notice for administrative action for his infraction wherein he admitted his fault and stated that he did so to influence his seniors for getting better appraisal reports. Later the concerned military commander decided to initiate disciplinary proceedings instead of administrative proceedings, an action that was challenged by the officer before the AFT.

The tribunal, holding that the offence did not fall in the category of ‘moral turpitude’ so as to allow the holding of a Court Martial, set aside the decision for holding disciplinary proceedings and restored the process of administrative action.

A detailed report in The Indian Express can be accessed here.

South Korea: many more sexual offense trials

The Korea Times reports a 77.6% increase in the number of sex offense trials in the South Korean armed forces over the last four years.

The number of trials for active-duty soldiers accused of sexual crimes amounted to 2,185 between 2018 and last year, according to the data provided to Rep. Kim Seung-won of the main opposition Democratic Party of Korea.

The figure breaks down into 443 in 2018, 434 in 2019, 521 in 2020 and 787 last year.

Start o' Term

Today marks the first day of the October 2022 Term of the U.S. Court of Appeals for the Armed Forces. The Term runs through September 30, 2023. As has been the case since Judge Scott W. Stucky's term of office expired on July 31, 2021, there is a vacancy on the court.

On August 2, 2021, the court announced that unless it "issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court." The August 2, 2021 Notice remains in effect, and from time to time the Court has gjven notice that various of the senior judges will "perform judicial duties" in particular cases. Examples appear in the September 21, 2022 Daily Journal.

The August 2, 2021 Notice recited that Article 142, UCMJ, "authorizes the appointment of five judges to serve on the Court." That is true, but it is a paraphrase. Textualists will want, as always, to read the exact language of the statute. Article 142(a) is the pertinent provision. It states: "The United States Court of Appeals for the Armed Forces consists of five judges." Those five may be the judges appointed to the court or senior judges or Article III judges designated under Articles 142(e)(1) or (f), UCMJ, respectively, or some combination thereof. But the court in any event "consists of five judges."

As the unofficial Rules Guide* notes (21st ed. 2022, § 6.03[1], at 65):

In enlarging the Court to five judges in 1989, Congress observed that "[a]s under current law, the Court will sit as a whole for all its actions, rather than in panels, to ensure clarity and uniformity in the application of military law." S. Rep. No. 101-81, at 172 (1989); H.R. Conf. Rep. No. 101-331, at 657 (1989). This language is precatory in light of the Court's express grant of statutory authority to determine its own quorum. UCMJ art. 144, 10 U.S.C. § 944. Still, the notion that the Court should sit en banc at all times is a sound one and should be followed since doing so avoids the danger of doctrinal instability and the need for and delay entailed in en banc proceedings to correct errant panel decisions.

Of interest from the Senate Report language is the phrase "all its actions" (emphasis added), which strongly suggests that Congress intended that actions such as the grant or denial of petitions for grant of review would be included.

As we begin the 15th month of the current hiatus, the court may wish to modify its practice and designate senior judges to fill out the bench for the critical purpose of considering petitions for grant of review, which are far more numerous than the handful of cases that are placed on the regular docket for plenary briefing and argument. The August 2, 2021 Notice need not be modified to achieve this, but additional notices would have to be issued effecting the designation. Given the number of senior judges available for designation (there are eight), a monthly rota would suffice and there would almost certainly never be a need to dip into the even larger backup pool of Article III judges. Voting on petitions can be done telephonically or electronically, as well as in person, under the court's Rule 6(a).

Whether or not the court can pick and choose which of its judicial functions will be performed by a bobtailed court and which will be performed by the five judges of which the court "consists," it should as a matter of simple fairness afford all litigants the same robust review by five sets of judicial eyes. Monday, October 3, 2022 would be a good time to make the change.

* Full disclosure: the Editor is one of the authors of the Rules Guide.