Tuesday, November 29, 2022
Intriguing case in Canadian military history
An historian and journalist, Dr. Greenfield offers an intriguing tale that, for some readers, may call to mind the 1990 made-for-TV movie starring the late Walter Matthau: "The Incident". And Dr. Greenfield's book offers a much more complex tale that is both true and presents challenging ethical and legal dilemmas.
While I am inclined to dispute the definitive manner in which Dr. Greenfield asserts that the trial of Nazi PWs, charged with murdering a couple of their fellow PWs, was a miscarriage of justice, his Op-Ed (and, presumably, book) raise interesting questions about the application of military law, in Canada, during the Second World War. His conclusion that the PWs should have been tried by court martial does not necessarily result in a miscarriage of justice. While the Crown in Canada could have relied upon military law to try the accused, even then, the jurisdiction of civil courts of criminal jurisdiction was concurrent.
One might be inclined to compare the cases to the trial of Kurt Meyer for war crimes. Meyer was tried before a court martial, an appropriate tribunal when an enemy combatant is held by a belligerent nation, for the murders of Canadian soldiers at the Abbaye d'Ardenne (Ardenne Abbey). However, Meyer was tried for war crimes committed, in Europe, before he was captured.
I would also suggest that the 'patriotic motive' advanced by lawyers for the accused was of dubious merit, in 1940s Canada or presently. The circumstances giving rise to the actions of the accused may have been worthy of consideration as mitigating factors.
Notwithstanding whether one might disagree with some of Dr. Greenfield's conclusions regarding the justness of the civil trial, he offers a well-researched and intriguing examination of a provocative tale in Canadian military history.
Saturday, November 26, 2022
Video no evil
“Lt E Ali (N/18406) should be charged with Disobedience to Standing Order punishable under Section 57(1) of the AFA CAP A20 LFN: 2004 for contravening Paragraph 11 (g) of the DHQ Policy on the use of Social Media for the FN 2018 by posting his wedding video clips on D$SC Course 25 WhatsApp forum,” the memo reads.
“One EE Ukhabi and 12 others will also face disciplinary action for participating in paying formal hand salute and doing push-ups in honour of the bride during the wedding ceremony of Lt and Mrs E All in violation of Paragraph 46 of the Traditions, Custom and Ethics of the NA 2005.”
[Lt-Col N.H.] Lomgpoe further said that Ukhabi and some officers mentioned earlier will be punished for appearing in “NA No 1 Dress without ceremonial jacket.”
This, the military said, contravened paragraph 38 of the NA Dress Regulation of 2005.
Friday, November 25, 2022
For your reading list
Warfare and Society in British India, 1757-1947 (Routledge 2022).
Speak no evil
Military courts and repression
From Why Have Military Courts Become Such a Popular Tool of Repression?, by Brett J. Kyle and Andrew G. Reiter
Cases decided by CAAF on full opinion, October 2022 Term
Watch for changes in the Wisconsin Code of Military Justice
The draft bills were presented to the committee on Nov. 17. The bulk of the bills address discrepancies between the Wisconsin Code of Military Justice (WCMJ) used by the Wisconsin National Guard and the Uniform Code of Military Justice (UCMJ) which is used by all national uniformed military branches, some of which have made it more difficult for sexual assault victims to receive justice under Wisconsin’s code.
For example, under the Wisconsin code, “wrongful sexual contact” is not an offense unto itself, and would need to be coupled with another charge for prosecution. The national, uniform code used to be the same but was updated in 2017. Several of the draft bills would update Wisconsin’s military code to bring it into alignment with the national code.
Other bills would require the Department of Military Affairs to inform the Legislature about substantial changes to the national military criminal codes, so the Legislature could make updates to Wisconsin code as needed; prohibit certain behaviors from officials in positions of power over trainees and recruits; update legislation on retaliation for reporting sexual assault and sexual harassment; lay out pre-trial, trial, and post-trial procedures, and more.
Thursday, November 24, 2022
Will Taiwan reinstate peacetime courts-martial?
Previously asked by Kuomintang Legislator Wu Sz-Huai (吳斯懷) about his view on restoring military trials during peacetime on Nov. 9, Defense Minister Chiu Kuo-cheng (邱國正) said he "personally agreed" with the idea but said it was for lawmakers to decide.
According to the Ministry of National Defense (MND), out of 32 crimes committed by active duty military personnel that were brought to trial over the past five years, 90 percent of them did not result in convictions by civilian courts.
This has led to a decline in discipline, morale, and the leadership ability of Taiwan's military officers, according to Wu.
The limits of name-suppression
Monday, November 21, 2022
Transforming military justice
Sunday, November 20, 2022
Unsolved murder spurs possible reform
Representative Torres named the legislation after Enrique Roman-Martinez, a member of the 82d Airborne Division who was decapitated during Memorial Day Weekend in 2020. The Army Criminal Investigative Division failed to close the homicide investigation. Specialist Roman-Martinez had been camping in the Outer Banks of North Carolina with 7 other Soldiers at the time of his homicide.
Military.com has done a series of articles on the incident, tracking the disciplinary action some of those Soldiers have faced for other misconduct, yet the cause of SPC Roman-Martinez' murder remains unsolved.
Saturday, November 19, 2022
The Fortin CANFORGEN
On Thursday, 17 November 2022, the Vice Chief of the Defence Staff (VCDS) issued CANFORGEN 164/22 – which can more accurately be characterized as the ‘Fortin CANFORGEN’. Let’s face it: the 3,000 kg rhino is the room is that the CANFORGEN was clearly issued because Major-General (MGen) Dany Fortin wore his Canadian Forces (CF) uniform (specifically, his Distinctive Environmental Uniform (DEU) 3) to his trial before a civil court of criminal jurisdiction. He did so to answer allegations arising within his service and which were investigated by Military Police. Certain people complained vociferously.
This development was reported broadly in the Canadian news media, including by Canadian Press reporter, Lee Berthiaume: “Military bans uniforms from civilian trials following Fortin criticism”, Lee Berthiaume, Canadian Press, Globe and Mail online.
As I have discussed previously, it is open to the Chief of the Defence Staff (CDS), or one of the CDS’ subordinates, to issue direction regarding whether a CF member may wear CF uniform in certain circumstances. Indeed, there were long-standing gaps in the CF Dress Instructions and other policy direction regarding the wearing of CF uniforms.
However, there are pertinent issues that should be addressed, including: (1) whether a CANFORGEN is the appropriate policy instrument; and, (2) whether there are any problematic provisos in the CANFORGEN that the VCDS purports to use as a policy instrument.
I expand upon these issues in the Blog post hyperlinked below. Specifically, I explain (for what seems like the hundredth time) that CANFORGEN are not proper policy instruments for the governance of the Canadian Forces. I also highlight some problematic provisions in the CANFORGEN, within the context of ongoing problematic policy initiatives brought by the Minister of National Defence, the Honourable Anita Anand.
“The Fortin CANFORGEN”, Rory Fowler, online: Law Office of
Rory G Fowler
Friday, November 18, 2022
Common crimes by members of the military appropriately decided by a military court when the case deals with military interests
A norm that gives military jurisdiction competence over common crimes committed by members of the military in the exercise of their functions does not produce results contrary to the Constitution. Two former members of the Carabineros (Chilean police under the Ministry of Interior but still considered part of the Armed Forces) alleged that their human rights to equal protection before the law, to an independent and impartial court and to due process of law were violated by being tried for falsification of documents in a military court rather than in a civilian court.
The Chilean Constitutional Court held that they were appropriately tried in a military court. It pointed out that there were two laws that came into play dealing with falsification of documents: Article 367 No. 5 of the Military Code of Justice and Article 193 of the Penal Code. The former can only be committed by a member of the military in abuse of his functions with regard to documents referring to service in the military institutions. The Inter-American Court of Human Rights would have agreed with this decision.
Military members appearing in civilian court on criminal charges must wear civies
The Canadian Broadcasting Corporation (CBC) [click here] has announced that the Canadian Armed Forces has now issued an instruction banning CAF members from wearing their uniforms and medals in civilian court while defending themselves on criminal charges.
The instruction is effective December 1, 2022. A CAF member can file a request to be exempted from their chain of command.
This decision was no doubt precipitated by Major General Dany Fortin, a highly decorated commander, who showed up in court in full uniform and medals while charged with one count of sexual assault which is alleged to have taken place in 1988.
Several victims' advocates for victims of sexual assault has previously protested the use of uniforms and medals,. They argued that the act of wearing the full uniform to court while on trial for sexual assault is a power play that intimidates complainants and triggers victims. "The uniform is a powerful symbol of the institution and wearing it could make a complainant feel like they're facing off against the entire Canadian Armed Forces."
"At worst it's intimidation and bullying … and it will have a silencing effect on survivors."
Professor Megan MacKenzie, the Simon Fraser University's Chair in International Law and Human Security also said that one a military member is charged, that member should lose the right to wear the uniform in court.
"Everyone is meant to be equal before the law, The minute that someone walks in wearing a military uniform, and in particular a uniform with medals that symbolize accolades and deployments, I really think that it elevates that person's status in a way that could impact the trial. I think that's not appropriate."
I am fundamentally in accord with this new policy, except that as a rule medals particularly those awarded for Gallantry, or service in war campaigns, long service, good conduct, efficiency or meritorious service tend to be the property of the wearer, whether in active service or in retirement.
Fundamental to the concept of honors, these medals carry prestige and their raison d'être is to recognize an accomplishment commanding the respect of members of the military, the general public and the person honored.
The decision to wear such medals in court should continue to belong to the person, whether one is in active or reserve force service or a veteran, who, by virtue of constitutional law, is deemed "innocent" until proven guilty. That person has earned the right and is entitled to wear his / her medals as and when they please, in or out of court.
Wednesday, November 16, 2022
CAAF rule changes
Monday, November 14, 2022
Armed Forces Tribunal erred in considering sealed information
Saturday, November 12, 2022
Unanswered questions for Somalia
In Somalia, military courts had the power to try civilians, especially in terrorism related cases. It was reported that civilian courts were not functional in many areas of Somalia. Could statistics be provided on the cases of civilians tried by military courts in recent years, and what were the “special” circumstances for choosing military courts? Did Somalia have any specific implementation plans and programmes for transferring such cases to civilian courts?
The summary does not include a response from the Somali representatives.
A small step forward in Tunis
Human rights jurisprudence strongly disfavors the use of military courts to prosecute civilians. In some countries, such courts are often employed for the purpose of suppressing civilian dissent.
Friday, November 11, 2022
The San Diego Zoo caper
Thursday, November 10, 2022
Law Society of Málaga
Wednesday, November 9, 2022
"Article 10 does not stop at the gates of army barracks"
A note on the chronology:
Television show during which the applicant referred to the "pseudo-constitution" and said its origins were "spurious and bastardized," May 26, 2013
Newspaper account of television show, Sept. 23, 2013
Termination of investigation without action, Dec. 2, 2013
Central Military Court affirmance, with comment that the officer had exceeded the permissible limits of expression, Jan. 21, 2014
Dismissal of action for judicial review by the Central Military Court, Feb. 3, 2016
Dismissal of appeal by the Military Military Chamber of the Supreme Court, date unknown
Amparo dismissed by the Constitutional Court, Apr. 19, 2017
Application filed with the European Court of Human Rights, Oct. 10, 2017
ECtHR deliberations and decision, Oct. 11, 2022
Chamber Decision published, Nov. 8, 2022
Tuesday, November 8, 2022
Transparency and comparability in case dispositions
Of particular interest to the advocacy groups are the differences in punishment for service members by military and civilian prosecutions given the different protocols that exist between the two. For decades, military commanders had almost absolute authority over prosecutions in dealing with major crimes. That was changed by the Uniform Code of Military Justice when it was passed by Congress and took effect in the 1950s. But while the UCMJ has brought some improvements, advocates say it was only a first step forward.
When Congress passed the National Defense Authorization Act for 2022, which sets policy and spending priorities for the Pentagon, it contained further reforms that removed military commanders from the decision-making process for certain crimes, including sexual assault and murder. Originally, the proposal sought to remove commanders from decisions involving all criminal prosecutions, but opposition from Republicans in Congress led to a compromise that applied to only certain crimes.
Under the change in the NDAA, decisions about whether to prosecute about a dozen specific crimes shifted from military commanders to independent special trial prosecutors.
“Historically, military commanders wielded nearly unfettered disciplinary authority over the soldiers in their command. In a standard court-martial under the pre-UCMJ military code, commanders wielded the charging authority of a prosecutor, the investigative authorities of a police officer, the presiding authority of a trial judge and the review authority of an appellate judge,” the lawsuit states.
“This concentration of power in commanders led to tremendous disparities in how justice was meted out, especially during wartime. During World War II, the United States conducted over 1 million courts-martial, impacting nearly a 10th of the force. Of those courts-martial, over 140 resulted in the death penalty, with Black soldiers disproportionately represented among those numbers,” the suit states.
Saturday, November 5, 2022
AWOL in Ireland
Figures obtained by the Irish Examiner from the Defence Forces show that last year there were 106 AWOL cases, which again was low in comparison to other years.
There were 82 cases reported in 2019, but the figure was higher in 2018 with 133 absentees. Each year previously it was higher again: 152 in 2017, 145 in 2016, 136 in 2015, 138 in 2014 and 134 in 2013.
In total there have been 1,241 AWOL cases up to September this year over the 10-year period.
Friday, November 4, 2022
Thursday, November 3, 2022
War Horse sues for Black Book
The War Horse News has sued the Navy and Marine Corps, alleging that they broke the law by denying requests for a database of public information about officer misconduct.
On Friday, The War Horse filed the lawsuit in the U.S. District Court for the District of Columbia, alleging that the Department of the Navy and the Marine Corps have repeatedly violated the Freedom of Information Act by withholding the records.
“The War Horse’s mission to increase public awareness of the military justice system is important and just,” said Chad Darcy, a Marine veteran and an attorney with Davis Wright Tremaine, the law firm representing The War Horse pro bono for the suit.
“It is disappointing that the Department of the Navy and Headquarters Marine Corps issued a blanket denial of The War Horse’s FOIA request. We welcome the opportunity to vindicate our client’s position in this litigation.”
* * *
The reporting revealed that, inside the notebook, all investigations of and crimes committed by officers are kept meticulously tracked—and often omitted from the official record and congressional disclosures—throughout their careers. During the reporting, multiple Marine officers told The War Horse that the ongoing behavior highlights a mix of favoritism and “sugar daddy deals” that are overseen by military lawyers and the Corps’ most senior officers.
The complaint can be found here.