Intriguing case in Canadian military history

Recently, the Globe and Mail ran an interesting Op-Ed piece by Canadian military historian , Dr. Nathan Greenfield, Ph.D.  Dr. Greenfield has written previously about prisoners of war (PW), from various countries, during the Second World War.  His recent Op-Ed was presented to publicize his latest book:  Hanged in Medicine Hat: Murders in a Nazi Prisoner-of-War Camp, and the Disturbing True Story of Canada’s Last Mass Execution (Toronto: Sutherland House, 9 November 2022).

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.   

Video no evil

Just the other day, Global Military Justice Reform carried this item about a celebratory lunch gone bad in Spain. Now it's time for wedding videos that have led to potential disciplinary proceedings against the groom and other Army officers in Nigeria. Excerpt:

“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.

For your reading list

Douglas M. Peers, Discipline and Publish: Order, Identity, and Honour in the Practice of Military Law in the [East India] Company Era, 1820-60, in Warfare and Society in British India, 1757-1947 (Routledge 2022).

Speak no evil

It was supposed to be a big celebratory lunch for a Spanish judge advocate colonel who was being transferred to the reserves, but it has turned into a years-long (and continuing) legal battle because the honoree used the occasion as an opportunity to criticize the Ministry of Defense for not appointing the honoree to a particular important prosecutorial position. Was the action arbitrary? Was the Undersecretary of Defense disqualified? Was the officer's right to free speech violated? The case is now before the Military Chamber of the Supreme Court a second time. El Confidencial Digital has the story here [use Google Translate if you do not read Spanish].

Military courts and repression

Military justice is a powerful, yet often overlooked, instrument of repression and impunity for human rights abuses. Supporters of democracy and human rights should strongly challenge any expansion of military judicial power.

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

Since its current Term of Court began on October 1, 2022, the U.S. Court of Appeals for the Armed Forces has decided one case on full opinion.  

Watch for changes in the Wisconsin Code of Military Justice

Wisconsin's legislature is working on bills to update the state's Code of Military Justice, which governs personnel of the Wisconsin National Guard and Air National Guard. From this Urban Milwaukee article by Christina Lieffring:

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.

Will Taiwan reinstate peacetime courts-martial?

A recent espionage case involving a colonel has generated debate in Taiwan as to whether the hasty decision to end peacetime courts-martial should be revisited. Details here. Excerpt:

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

Is the fact that an accused served in Iraq sufficient, without more, to warrant a name-suppression order? Britain's Ministry of Defence and, in the end, a Judge Advocate, say it isn't. Details here.

Transforming military justice

Someone named Julianus has posted this thought-provoking essay on CAAFlog. Global Military Justice Reform does not permit pseudonyms, while CAAFlog at times has done so. After a heated discussion in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the consensus was that (applying or disregarding choice of law rules, we're not sure which) linking to this CAAFlog post was, well, okay. Anyway, the post is important and worth busy readers' time.

Unsolved murder spurs possible reform

Congresswoman Norma Torres introduced legislation to establish uniform procedures for the handling of cold cases by military investigators. The text of the bill can be found here. 

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. 

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

[http://roryfowlerlaw.com/the-fortin-canforgen/]

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.  

The origins

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."

Comment

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.

CAAF rule changes

The U.S. Court of Appeals for the Armed Forces has made a few changes to its Rules of Practice and Procedure, effective October 1, 2022. They can be found here. The changes affect Rules 9(e), 21A, 30A(c) and 36(a). There is also a brand-new Rule 36B (Citations to Primary Authorities).

Armed Forces Tribunal erred in considering sealed information

In its decision of October 20, 2022, in Sharma v. Union of India, Civil App. Nos. 841-43 of 2022, the Supreme Court of India remanded naval officers' cases to the Armed Forces Tribunal because the AFT had considered sealed files that were not made available to the petitioners. At issue was whether the officers had been properly denied permanent commissions .The Indian Express reports on the decision here.

Unanswered questions for Somalia

According to this summary of a November 2, 2022 meeting of the Committee Against Torture's experts with representatives of Somalia, Liu Huawen, a Committee expert and co-rapporteur, asked:

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

The Tunisian Military Court of Appeal has dismissed the charges against a prominent civilian attorney who had been convicted of inciting police disobedience, apparently for lack of jurisdiction. Details here.

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.

The San Diego Zoo caper

Marines charged in state court for alleged vandalism at the San Diego Zoo have reached an agreement with prosecutors that includes restitution and dismissal of the charges, according to this report. The Marine Corps is now deciding whether to take action. Should it, given the seeming lack of service connection to these off-base offenses? Is the purpose of the UCMJ to give a second bite at the punishment apple?

Veterans Day

 

Law Society of Málaga

When in Málaga, be sure to get in touch with the Military Law and Security Section of the Málaga Law Society. Here's an article about a recent section event. The society -- the Ilustre Colegio de Abogados de Málaga -- was founded in 1776.

"Article 10 does not stop at the gates of army barracks"

Thus spake the European Court of Human Rights yesterday in Ayuso Torres v. Spain, Application no. 74729/17.  At issue was whether a lieutenant colonel who also was a civilian professor of constitutional law had suffered an unwarranted restriction on his freedom of speech when a military decision that dismissed disciplinary proceedings against him as time-barred nonetheless observed that his televised personal views on the Spanish Constitution had exceeded the limits of free expression applicable to military personnel.

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 

Transparency and comparability in case dispositions

Protect Our Defenders and the Connecticut Veterans Legal Center, represented by Yale Law School's Veterans Legal Services Clinic, have filed a Freedom of Information Act suit in federal district court in Connecticut, seeking military and Justice Department records relating to  sex offense prosecutions of military personnel. Stars and Stripes has the story here, with a link to the complaint. Excerpt from the article:

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.

AWOL in Ireland

The Irish Examiner has obtained data on unauthorized absences by Defence Forces personnel. Here is their report. Excerpt:

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.

No mas

Global Military Justice Reform has deactivated its Twitter account.

War Horse sues for Black Book

The War Horse has brought a noteworthy Freedom of Information Act lawsuit in federal district court in Washington, D.C. It concerns access to a book that is said to record disciplinary issues involving officers of the U.S. Marine Corps. According to The War Horse,

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. 

Doxing and LOAC

West Point's Lieber Institute has been doing phenomenal work on issues arising from the Russo-Ukrainian War. A case in point: Eric Jensen and Sean Watts's October 31 post about doxing enemy soldiers.