2024

Citation for FY24 NDAA

The National Defense Authorization Act for Fiscal Year 2024 may be cited as Pub. L. No. 118-31, 137 Stat. 136 (2023).

The effective-date minefield

Congress and the President have made many changes, both large and small, in the Uniform Code of Military Justice and the Manual for Courts-Martial in recent years. Service regulations and rules of court also change over time. Naturally, in this era in which "we are all textualists," the careful lawyer's, law clerk's and judge's first stop is the official text of the document at issue. But what is the second stop?

Given the Niagara of changes in the governing documents, it is now more essential than ever to make a habit of also checking the effective date prescribed in the Public Law, Executive Order, service regulation or court rule change. There is no other way to be certain that you are applying the proper version.

Effective dates for statutory changes are conveniently set out in the Notes that follow each section of the U.S. Code, including the Uniform Code of Military Justice. For Manual changes, service regulations and rules of court, the task typically takes a bit more time, as it will be necessary to consult the pertinent Executive Order, promulgating letter or court order, some of which may not be as handy as the U.S. Code. 

Drafters typically take pains to avoid ex post facto issues by prescribing future effective dates or defining triggering events in ways that avoid the unfair or unconstitutional application of new rules. Changes may also have delayed effectiveness baked in in recognition of the time that may be required to draft and obtain approval for implementing regulations or to stand up new offices or organizations (a recent example being the Special Trial Counsel offices that this month assume responsibility for the disposition of a host of "covered," "related" and "known" offenses). The "Statutory Notes and Related Subsidiaries" for art. 24a, UCMJ, states:

Effective Date of 2022 Amendment

Pub. L. 117–263, div. A, title V, §542(b), Dec. 23, 2022, 136 Stat. 2581 , provided that: "The amendments made by subsection (a) [amending this section] shall take effect immediately after the coming into effect of the amendments made by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692) [enacting this section] as provided in section 539C of that Act (10 U.S.C. 801 note)."

Effective Date

Section effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as an Effective Date of 2021 Amendment note under section 801 of this title.

Residual Prosecutorial Duties and Other Judicial Functions of Convening Authorities in Covered Cases

Pub. L. 117–263, div. A, title V, §541(c), Dec. 23, 2022, 136 Stat. 2580 , provided that: "The President shall prescribe regulations to ensure that residual prosecutorial duties and other judicial functions of convening authorities, including granting immunity, ordering depositions, and hiring experts, with respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice) (as added by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692)), are transferred to the military judge, the special trial counsel, or other authority as appropriate in such cases by no later than the effective date established in section 539C of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 10 U.S.C. 801 note), in consideration of due process for all parties involved in such a case."

The recently-signed National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, 137 Stat. 136 (2023), illustrates the challenges of fixing effective dates for legislation with many moving parts. Section 531(c) provides:

Court Martial set aside after 10 years by the Armed Forces Tribunal

In an order passed recently, the Principal Bench (Delhi) of the Armed Forces Tribunal (AFT) has set aside the dismissal of a soldier by a Summary Court Martial (SCM) in 2013 and has ordered a retrial.

The soldier was convicted and sentenced to dismissal from service by an SCM after he remained absent without leave for more than 2 years. The AFT found gross irregularities in the way the proceedings were conducted, especially in the effectuation of the provision of the “friend of the accused”. The AFT has set aside the trial as having been vitiated and has ordered a fresh trial (retrial).

The final conclusion on ordering a retiral, however, appears curiously impractical after the lapse of almost a decade. More so since the Supreme Court of India and various State High Courts have repeatedly held that an SCM is an emergent provision where immediacy of action is required and which cannot be invoked as a regular recourse. The invocation of an SCM itself has been held to be bad in law by Constitutional Courts, let alone a retrial. Courts, in the past, have set aside such trials by grating notional benefits to personnel by treating a person having retired from service instead of dismissal by an SCM.

The judgment, nevertheless, again brings into focus the desirability of adhering to proper procedures while carrying out military trials so as not to vitiate them or to cause any prejudice to the accused.

A news-report on the case by The Tribune can be accessed here.

Canadian military justice has failed

by Major Tim Dunne (retired) 

From Frontline Canada magazine

20 December 2023

There is a vast difference between Canadian justice and Canadian military justice.

The Department of Justice Act gives the Minister of Justice “superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces.” But the Justice department has surrendered superintendence for military justice to DND’s Judge Advocate General (JAG) in the practice and application of the Code of Service Discipline, the portion of the National Defence Act (NDA) that mandates formal Canadian military discipline and military justice.

This single transfer of responsibility and authority between two federal departments endowed the practitioners of military justice with impunity for their grave ineptitude.

The Canadian Military Justice System

This military institution is a tri-partite organization comprising the Military Police, Judge Advocate General and Chief Military Judge.

The Military Police and its investigative arm, the Canadian Forces National Investigation Service (CFNIS) investigates and can recommend and lay charges.

Within the JAG organization, the Director of Military Prosecutions “prefers charges against” (indicts) the accused, represents DND at sentencing appeals and provides guidance to investigators. Defence Counsel Services represents civilian or military who may be charged, dealt with and tried under the Code of Service Discipline.”

The office of the Chief Military Judge is an independent federal judicial organization that operates independently from the Government of Canada, the Department of National Defence and the Canadian Armed Forces. Military judges preside at courts martial and other judicial proceedings as required.

The genesis of Anglo-Saxon-based military justice began with William the Conqueror’s invasion of the British Isles in 1066, and was predicated on rapid trial, conviction and punishment of the accused.

In both the civilian and military jurisdictions, the statutes provide a litany of offences with which an accused can be charged. The Code of Service Discipline has its own list of offences, but it contains two regulations that do not lend themselves to easy codification.

NDA Section 130, Service Trial of Civil Offences, stipulates that an act or omission (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament, is an offence and if convicted the accused can be punished under the Criminal Code or other Canadian legislation.

2024 Manual for Courts-Martial

The Manual for Courts-Martial, United States (2024 ed.) can be downloaded here. The important Supplementary Materials for the 2024 Manual can be found here.

Conviction of former Suriname President Dési Bouterse

Yesterday was an important day for military justice and justice in general in Suriname. In a now final verdict the Suriname Court of Justice sentenced former President Dési Bouterse to 20 years imprisonment for co-committing 15 murders on December 8, 1982. The victims were prominent lawyers, officers and journalists, who had criticized Bouterse’s military regime at the time.

This verdict comes at the end of a long legal procedure. In 2007 groups of citizens initiated a protest, because of the concern that the so-called December-murders would fall under the statute of limitations. This eventually led to criminal proceedings and in 2019 Bouterse was convicted in absentia by the Military Court.

Bouterse subsequently filed an objection to this conviction. In 2021, the Military Court, in the same composition as in 2019 and chaired by President Cynthia Valstein-Montnor, judged that no new facts had emerged and confirmed the earlier sentence. Bouterse appealed the sentence. 

As with the last judgment, the now 78-year-old Mr. Bouterse was not present when the verdict was announced. In the days before, he had given several press conferences in which he denounced the procedure as a ‘political trial’. Former President Bouterse still enjoys popularity in Suriname. 

Contrary to the earlier prosecutions, the General Prosecutor in appeal had requested immediate imprisonment, following the verdict. This request was not granted by the Court of Justice, because it was ‘not sufficiently motivated’. The Court ruled instead that the verdict ‘implied’ imprisonment. It is now up to the Prosecution Service to execute the verdict. How and when that will happen is unclear. 

Within 8 days Bouterse can appeal for a Presidential Pardon to his successor, President Chandrikapersad Santokhi. The President is legally required to ask advice to the same Court of Justice which issued the verdict. 

As to be expected, the relatives of the murdered individuals were most pleased with the verdict. Some of those, who had emigrated to the Netherlands after the killings, vowed that they would now return to their country.

Editor's Note: Many thanks to longtime Global Military Justice Reform contributor Jan Peter Spijk for this report.

Hearing military cases at the Correctional Chamber of the Tribunal of Paris – how French justice deals with military matters

Each month, the 10^th Correctional Chamber of the Tribunal of Paris [Tribunal] hears pleadings regarding alleged crimes and offences committed outside France or during “external operations” by or against members of the French armed forces in peacetime. As the Tribunal’s full decisions are not available online, we rely on French journalists who attend hearings to provide articles[1]. The following are translated summaries of their articles pertaining to those cases heard in October and November. The articles also provide background information on how the French justice system has evolved in dealing with military cases.

October Hearings[2]

The first case involved a service member who plead guilty for an “excessive alcoholization” (alcoolisation excessive) while he was deployed in Lebanon. He was sentenced to six months incarceration, suspended, with no criminal record. He confirmed to the Court that he is in the process of solving his alcoholism problem. The judge told him that he is lucky; as the offence is contrary to ordinary criminal law, suspended sentences are available for him.

In the following case, a senior non-commissioned officer and a younger lieutenant had an argument over their unit receiving bad press and media attention. Their unit was linked with a non-profit organization (NPO), in turn linked to a foreign regime generally condemned by the international society. The lieutenant saw a logo associated with the NPO on the NCO’s social media webpage. The lieutenant reported it to his chain of command. Superior officers warned the NCO, who then took revenge on the lieutenant. Pretending he was the young officer, the NCO promised funds to the NPO, requesting receipts to be sent to the lieutenant‘s professional email address. The NCO also made many hidden phone calls to the lieutenant. He was charged with identity theft and malicious phone calls. He was found guilty and sentenced to a fine.

In the next case, a servicewoman was filmed taking her shower by another soldier. The offence took place while they are deployed in Abidjan, in 2021. She confronted him while leaving the military compound’s bathroom, firmly asked him for his cell phone and made him delete the pictures and video of her. “I was afraid he would share them on social media” she later told the Court. She testified as to the negative impact the crime had, and still has on her, in particular on her willingness to be deployed again. Defence counsel plead that the investigation was incomplete. In addition, his client was put in pre-trial custody for 30 days and the bad reputation associated with the file forced him to be released from the forces. Unconvinced, the Court adjourned the case for decision to be rendered later.

The last case in October occurred in Niger in 2020. Three paratroopers were tried for having violently assaulted another paratrooper. Prior to the assault, the soldier informed his chain of command that he wanted to be sent back to France. He disliked the conduct of other servicemen towards the local population. He reported a lack of respect, racist comments, and alcoholic consumption, all reasons for him not to feel safe. The three others perceived his intention to be repatriated to be the equivalent of treason. One night, while the soldier was on guard duty, they put him against a container and beat him up. The Court found the three individuals guilty and sentenced them to between six to eight months of imprisonment, and suspended the sentence.

November Hearings[3]

In July 2021, while deployed in the United Arab Emirates, a chief warrant officer (CWO) returned to his residence, under the influence of alcohol. There he met with two female employees of the building in which he resided. He insistently invited them to his apartment to drink coffee but they were uncomfortable and refused. According to one complainant and other witnesses, the CWO then slapped one of them on the buttocks. In tears, she called security.

Denying everything, the CWO offered a different version of events. He denies having tried to seduce the two young women, saying “… my problem is that I'm too social with people. I just wanted to offer them a cup of coffee so they could drink it in the hall …” as a justification. As for the hand on the buttocks, the CWO explains that he sat on a chair in the building lobby and pushed the receptionist slightly on the back so that she wouldn't crush his foot. According to him, the charge arose due to a cultural misunderstanding and an intent by the complainants to harm his reputation.

In the days following the complaint, the CWO was repatriated. He was later charged with sexual assault and manifest drunkenness. At the trial, his lawyer requested the case to be heard in camera. The Court denied the motion. As for to the sentence, prosecution seeks 10 months imprisonment. Defence counsel argues his client’s unblemished 25 year career.

Unfortunately, based upon the article, it is unclear at the end of the Court’s deliberations whether the CWO is released because he’s found not guilty or because he was found guilty, but his sentenced was suspended.

The last case in November pertains to a young soldier who forgot a cell phone during a military operation in Mali in 2021. An officer found the phone and examined it in order to identify its owner. He found sexual images and texting messages involving underage persons. Promptly, the soldier’s computers are seized, which contain more than 2000 images of underage women and virtual discussions where the soldier asks to have “relations” with a 14-year old “young person”. As a defence, the individual explained that it was only fantasy, and that he had no intention of doing it. Unconvinced, the Court finds him guilty and sentences him to 12 months imprisonment, suspended.

Military Justice in France – Some Background Information on its Recent Evolution

For more than 40 years, the French military justice system has gone through a process where military courts have gradually given way to ordinary courts in dealing with military matters, while at the same time those courts have developed a particular expertise, having recently taken the step to attach specialized service personnel to the courts.

Spain's Central Military Tribunal on the verge of collapse

 The Central Military Tribunal, which is the highest military court in Spain, is on the verge of collapse because beginning in January 2024 it will have more vacancies than filled positions.  It has sent a report to the General Council of the Judiciary (CGPJ - Consejo General del Poder Judicial), warning of this imminent collapse, due to the fact that it is unable to make any appointments and it calls upon the CGPJ to take “urgent measures.”

The CGPJ is a constitutional body that governs the entire judiciary in Spain.  The President of the CGPJ is also the President of the Spanish Supreme Court and he presides over 20 members appointed by the King who serve for a period of 5 years.  Twelve members of the CGPJ must be judges/magistrates; 6 are elected by Congress and 6 by the Senate.  The remaining eight members of the CGPJ must be lawyers/jurists; 4 are elected by Congress and 4 by the Senate.  The votes by Congress and the Senate require three-fifths of each body for election to the CGPJ.

The current members of the CGPJ have been in office since November 29, 2013, having been elected by Congress and the Senate.  This membership expired in December 2018 and a third needed to be renewed, but the expired members -- three conservatives and one progressive -- refused to step down and the houses of the Spanish Parliament have been unable to achieve the respective three-fifths majority to replace them.

Prof. Vladeck on the FY24 NDAA's expansion of Supreme Court review

University of Texas Prof. Steve Vladeck (a Global Military Justice Reform contributor) has a super blog about the Supreme Court of the United States, called One First. Here's his report on the provision in the National Defense Authorization Act for Fiscal Year 2024 that will, in time, put the Court's review of courts-martial on an even footing with other criminal appeals and military commission cases. The NDAA awaits presidential signature.

Remember Dési Bouterse?

A decision is expected this week on the appeal of the former president's conviction by Suriname's court-martial. A thorough report on the background of the case, and concern about possible blowback, appears here.

Military justice reform in 2023--a mixed bag

As the holidays approach, a thoughtful if not festive mood has settled in here in the glass-enclosed newsroom high above Global Military Justice Plaza. What kind of year has it been for military justice? There's good news and bad.

Pakistan. After a violent demonstration, the authorities turned, as they have in the past, to military courts to try civilian rioters. That's the bad news. But then a 5-judge Supreme Court bench held it unconstitutional to do so, only to have that ruling suspended by a 6-judge bench of the same court. Last time Pakistan tried to prosecute civilians in military court, the country at least enacted a temporary constitutional amendment. This time, no need.

Uganda and Tunisia continue to prosecute civilians in military courts. A challenge to the practice remains undecided in the Supreme Court of Uganda.

Spain's military justice system has been plagued by unfilled judicial vacancies. 

Here in the United States, the Gillibrand System under which charging decisions for many court-martial offenses will be made by lawyers outside the chain of command is about to go into effect. The Secretary of the Army unfortunately kicked things off by firing the Army's new one-star chief "special trial counsel" for an email he sent 10 years ago when he was a supervisory defense counsel. Talk about an "own goal." After 40 years, Congress got around to affording military personnel the same right to seek discretionary Supreme Court review as is enjoyed by defendants in federal and state courts and even in the Guantánamo military commissions (which continue at their appallingly leisurely pace). The Supreme Court denied review in a case challenging court-martial jurisdiction over retirees, and the Navy issued long-overdue rules concerning the "vessel exception" to the right to refuse nonjudicial punishment.

In Canada, military justice mavens are waiting for the Supreme Court to decide whether serving officers can be military judges. Sex offenses by Canadian military personnel are now being handled by civilian authorities. Senior-officer cases dominated Canadian military justice news.

The Commonwealth is working on common military justice principles.

What would you add to the list? What can we look forward to--good or bad--in 2024? (Real names only, please.)

Human Rights Commission of Pakistan disappointed by Supreme Court order on military courts

The following press release was issued today in Lahore:

The Human Rights Commission of Pakistan (HRCP) fears that the Supreme Court’s decision to suspend the operation of its earlier short order, which had declared the military trial of civilians ‘unconstitutional’, will result in delayed justice to those who deserve to be exonerated from the charges levelled against them. Moreover, suspending the earlier decision means, from a practical perspective, the denial of bail to all the affected individuals, thereby violating their right to liberty.

This order of the honourable court is deeply worrying from a human rights perspective because it paves the way for continued military trials of civilians which, as HRCP has consistently pointed out, violates their right to due process and fair trial. The secrecy surrounding military court proceedings, the extremely high conviction rate of these courts and the possible means used to achieve such rates, and the absence of the right of appeal to civilian courts—whose role is restricted to exercising narrow powers of judicial review in such cases—are all reasons for which military jurisdiction over civilians has been globally disapproved.

Continuation of any trial in the light of the Supreme Court’s verdict through a subsequent interim order has allowed an unconstitutional process to proceed in military courts. It is especially of concern that such an order was passed without there being any element of irreparable harm apprehended from the non-suspension of the apex court’s earlier short order. HRCP is compelled to question the prudence of not only the order in question, but also hearing of the appeals against the Supreme Court’s verdict before the detailed judgment was announced.

HRCP fervently hopes that the concerns arising from the interim order will be addressed through an expeditious and final adjudication by the Supreme Court.

Better late than never

Just Security has this post by the Editor on the military justice provisions of the National Defense Authorization Act for Fiscal Year 2024, which is awaiting signature by President Joe Biden.

The Wells firing and prosecutorial independence

LTG (r) Chuck Pede

Lieutenant General Chuck Pede, retired Judge Advocate General of the Army, has this guest post on Major General Charlie Dunlap's Lawfire concerning the Secretary of the Army's firing of Brigadier General Warren Wells as lead special trial counsel on the basis of a 10-year-old email sent when he was serving as a supervisory defense counsel.

Comments on the firing and Gen. Pede's post are welcome. (In accordance with Global Military Justice Reform Rule 1, real names, please.) To kick things off, the Editor will offer a couple of thoughts. 

First, this firing does indeed raise a question about the independence of the STCs. This was totally unnecessary. With a stroke, Secretary Christine E. Wormuth struck a blow that seems most unfair, and, worse yet, casts a cloud over the new and better prosecutorial system that many people labored long, hard and wisely to achieve in order to foster improved public confidence in the administration of justice. Her action is far more destructive of that confidence than Gen. Wells’s decade-old email ever was.

That said, I have to disagree with Gen. Pede's reference to "the 'pre-baked' design of the new military justice system forced on the Services two years ago." To say something was "forced" on the services is to reject the very notion of civilian control of the military. Gen. Pede was one of those who thought the change was a bad idea, and I am concerned that he and others who shared his view will now seize on Ms. Wormuth's ill-advised action as a reason to roll back what Congress did. Watch for further signs of irredentism. For her part, Ms. Wormuth may have grasped defeat from the jaws of victory.

Readers will also want to take a look at the Niagara of comments over at CAAFlog.

Military justice training in Uganda

"Deputy Chief of the Defence Forces Lt. Gen. Peter Elwelu has emphasized the importance of fairness in dispensing justice to court martial chairpersons, prosecutors, and lawyers during an ongoing induction course. Elwelu cautioned the officers against unnecessary case adjournments and being swayed by financial considerations, which has resulted in delayed justice and contributed to indiscipline. The course is currently taking place at the Junior Command and Staff College at Jinja Gaddafi Barracks." A brief NTVUganda YouTube video regarding the event can be found here.

Amnesty International protests Tunisia's military trial of a civilian opposition figure

Amnesty International has issued this statement concerning Tunisia's military trial of civilian opposition figure Chaïma Issa. Excerpt:

“Chaima Issa is a well-known writer and opposition figure who should have not been charged in the first place as she was simply peacefully exercising her right to freedom of expression. Tunisia’s authorities must quash this outrageous conviction from a military court immediately. Her case was brought by an increasingly repressive government that will stop at nothing to silence voices of dissent.

“Chaima Issa, much like dozens of other critics who are being judicially harassed or arbitrarily detained for months, is guilty of nothing more than questioning the decisions made by a government that, from the outset, has demonstrated an unwillingness to tolerate any form of dissent.

“The fact that Chaima Issa was tried by a military court only adds to the grave injustices she is facing since civilians should never be tried before military courts under international human rights law.   Over recent years, under President Kais Saied’s leadership, the Tunisian authorities have increasingly resorted to military trials as a means to prosecute critics and opponents.”

MJRP recommendations on preliminary hearing reform

On December 8, 2023, the Military Justice Review Panel submitted to the General Counsel of the Department of Defense its assessment of Article 32, UCMJ, concerning preliminary hearings. The Panel's memorandum can be found here. There were three recommendations. In a nutshell:

1. Amend Article 32 to state the purposes of preliminary hearings, including, most notably, affording an opportunity for meaningful discovery. This represents a reversal of an earlier revision that had generated a great deal of consternation in the defense bar.

2. Require that, when practicable, the preliminary hearing officer be a judge advocate with training in the conduct of preliminary hearings.

3. Amend Article 32 and R.C.M. 405 to provide that a preliminary hearing officer's determination that a charged offense lacks probable cause precludes referral to a general court-martial, (a) subject to appeal as of right to a military judge in accordance with Article 30a, UCMJ, and (b) without prejudice to the government's power to re-prefer the charge.

Military trials of civilians get green light in Pakistan for the moment; Lahore bar to strike

Acting on an intra-court appeal, a six-member bench of the Pakistan Supreme Court today voted 5-1 to allow military trials of civilians to proceed pending a decision on the merits. The Express Tribune provides this detailed report. Dawn's report is even more detailed, and has useful links.

Numerous disturbing questions arise. For example:

1. Was a justice disqualified because he had previously expressed a view on the case?

2. Were there undisclosed recusals?

3. Was a six-member bench sufficient? Should it have been at least 7? Or 9? Should those sitting have been the most senior?

4. Was it proper to decide the intra-court appeal before the earlier 5-member bench's full opinion(s) had been issued? At present, it is not clear which provisions of the Army Act that panel found unconstitutional.

In a nutshell, this case is a judicial hot potato and, at present, a complete mess from the standpoint of fostering public confidence in the administration of justice. It is impossible to resist the impression that the composition of the court has been manipulated to achieve a particular outcome.

The case has been adjourned until the third week of January.

Dawn reports on the bar's position:

LHC Bar Association ‘strongly condemns’ suspension

Reacting to the order, the Lahore High Court Bar Association said it would hold a strike tomorrow (Thursday) and boycott court proceedings after the hearing of urgent cases in protest.

In a statement, seen by Dawn.com, it “strongly condemned” today’s decision and voiced its objection to the formation of the bench.

The bar said lawyers did not “accept military courts under any circumstances as the Supreme Court has already declared them void of jurisdiction”.

Prof. Rosenblatt elected next NIMJ president

Prof. Franklin D. Rosenblatt of the Mississippi College School of Law (and contributor to Global Military Justice Reform) has today been elected president of the National Institute of Military Justice, succeeding Prof. Rachel E. VanLandingham of Southwestern Law School (also a Reform blog contributor). Congratulations to each!

Opposition figure appears in Tunisian military court today

Chaïma Aïssa, an opposition leader, appears today before the Criminal Chamber of the First Instance Permanent Military Court in Tunis on charges of attacking the head of state, encouraging soldiers to disobey orders, and undermining national security by disseminating fake news. Details here, en français.

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

Postscript: she was given a suspended sentence of one year's imprisonment.

Who's on first?

There is dissension in the ranks of Pakistan's Supreme Court over the composition of the bench that will hear the intra-court appeal in the military-courts case. According to this account, one justice has raised objections to the designation of a six-member bench to hear argument on December 15. 

The Business Recorder reproduces a letter from Justice Ijazul Ashan detailing his objections to the composition of the six-member bench to review the October 23 decision of a five-member bench. Excerpt:

I categorically and in clear terms stated that in order to dispel any impression of pick and choose, all judges of this Court in the order of seniority be included in the appellate Bench. The Chief Justice agreed but said that he would ask the judges and if any judge does not want to sit on the Bench, the next available judge will be included.

The same principle was agreed for cases mentioned in Sr Nos. 3 to 6, with the difference that a three-member Bench would be constituted in the order of seniority. If any judge did not wish to sit on the bench the next in order of seniority would be included in the bench. It was agreed that after asking the proposed members of the two benches the members of the Committee will be informed.

“I waited all day on Friday for any information regarding the two Benches. At least three phone calls were made to you, but my office was informed that the file with your note had been sent to the Chief Justice of Pakistan. The last call was made at 06:30 p.m. when your office stated that you had left for the day.

“Neither the minutes of the 4th meeting nor those of the 5th meeting were sent to me on Friday or Saturday. Neither of the minutes have been seen or signed by me, yet these have been uploaded on the website of the Supreme Court of Pakistan.

As a member of the Committee, it is my right and duty to ensure that the minutes reflect accurately what was discussed in the meeting, what were the points of view of the members of the Committee and if there was any unanimity or a difference of opinion. The minutes of the 5th meeting prepared and uploaded by you must certainly fail to do so.

Stay tuned; this is beginning to look very messy.

Fragging

Here is the online abstract of Daniel M. Campbell, Fragging in the Vietnam War: Myth, Media, and Memory, a 2023 Auburn University history Ph.D. dissertation. The full text of the dissertation is restricted to Auburn users. 

This dissertation examines the memory and media presentation of the phenomenon of fragging in the Vietnam War. Soldiers have attacked officers throughout history, but this study focuses on the rash of incidents in the latter stages of the war where enlisted men attacked officers or NCOs on-base in rear areas with M-26 fragmentation grenades or other explosives. While some soldiers involved in fraggings may have experienced the horrors of war, many served as rear-area support personnel. Fragging has largely been remembered as a heroic act of self-defense or as part of a principled, even legitimate, act of protest, a framing referred to in this study as the classic paradigm. According to data revealed in court-martial and CID records, and in the work of George Lepre, the fraggings for which information exists were motivated by numerous causes (racial animus, indiscipline, boredom, drug use, protection of illegal activities, personal vendetta) in relatively safe rear-area units. This more accurate memory of fragging is referred to as the alternate version. This narrative has been misremembered for many reasons, but it probably began to be exaggerated and mischaracterized as a way to intimidate officers. Thus, regardless of the actual mundane motives, fraggings and talk of fraggings became a part of the language of battlefield democracy of the Vietnamization era, wherein tacit, informal negotiations often determined what tasks soldiers would do and what on-base activities would be tolerated. This state of indiscipline in turn added to growing belief that the U.S. military should end the draft and transition to the All-Volunteer Force. Battlefield democracy may have a legitimate role in a constitutional democracy, but that role should not excuse cold-blooded murder or drunken attacks on the "wrong man," as frequently occurred in fraggings. Fraggers who killed other men should be remembered as killers, even if they were victims of a draft and questionable U.S. foreign policy. Ignoring or celebrating the misdeeds of enlisted men feeds a cycle of belief in the permanent rectitude of U.S. troops and results in an unreasonable hesitance to criticize the actions of soldiers. These dynamics make further costly military adventurism far more difficult to oppose. Chapter 1 of the dissertation focuses on the case of Billy Dean Smith, a Black GI who was prosecuted and exonerated for a fragging incident. Smith made dissent, race, and appeals to famous activists central to his defense. This most famous of fragging cases does not conform to the classic paradigm. Chapter 2 addresses other incidents of fragging and reveals a variety of motives which do not conform to the classic paradigm or fit any idea of battlefield democracy. Chapter 3 focuses on how the first few decades of postwar historiography almost universally presented fragging as noble, desperate self-defense, or as a legitimate element of battlefield democracy. Only in recent years have some historians broadened the view of fragging. Chapter 4 examines the representation of fragging in cultural sources like literature and film. Vietnam War literature provides many examples of the classic paradigm. Most Vietnam War films do not address fragging, but those that do tend to have a varied, and thus more accurate, take.

Free stuff

A three-volume series on the Rome Statute and procedure and evidence in the International Criminal Court can be downloaded for free from the website of Torkel Opsahl Academic EPublisher. Look for publication Nos. 43-45.

Government contentions in Pakistan's military-courts case

The Express Tribune reports here on the pending intra-court appeal in the Supreme Court of Pakistan's military-courts case. The article summarizes the caretaker government's contentions. The case will now be heard by a six-judge bench, reviewing the October 23 decision of a five-judge bench. To date, the promised opinion of the five-judge bench has not been released. All there is is a brief, conclusory 4-1 order. One would have thought that the intra-court appeal would not proceed until the full opinion(s) of the first panel had been handed down. Excerpt from the Express Tribune's account:

It was pointed out in the appeal that the Supreme Court (Practice and Procedure) Act had been declared ultra vires the Constitution and had taken effect since April 21. It added that in view of the act having attained constitutional validity, the constitution of the bench was in contravention to the procedure prescribed under sections 2 and 3 of the law.

“Therefore, the judgement is liable to be set aside for having been rendered coram non judice [without jurisdiction] and thus a nullity in the eye of law,” it continued. It contended that the petitions were not maintainable before the SC in its original jurisdiction under Article 184(3).

The plea maintained that the trial of the accused persons – whether military personnel or otherwise – could not be challenged for being in violation of any of the fundamental rights, including those enshrined in articles 9, 10-A and 25 of the Constitution.

The appeal argued that the challenges raised in the petitions could have been adjudicated by the high courts in their original constitutional jurisdiction under Article 199.

It contended that the petitions fell outside the purview of “the contours that this court [SC] had determined for the exercise of its original jurisdiction”. The plea pointed out that offences under Section 2(1)(d)(ii) included those under the Official Secrets Act, which “related to works of defence or naval, military or air force affairs, which may be prejudicial safety, interest, defence, sovereignty and sanctity of Pakistan”.

“It is clear from the nature of these offences that despite being committed by person[s] who are not members of the armed forces, they are closely related to the proper discharge of duties of such members,” it added.

Mark your calendar

The Supreme Court of Pakistan will hear the military-trials case on Wednesday, December 13. This is an "intra-court appeal" from the October 23 4-1 decision of a five-judge bench of the Supreme Court. That decision found the military trial of civilians to be unconstitutional. Details here.

Online panel on International Humanitarian Law with focus on civilians in armed conflict: registration open

The University Institute of Legal Studies (UILS), Panjab University, Chandigarh, India, is holding an online panel discussion in collaboration with the National Institute of Military Justice (NIMJ), Washington, DC, and Mississippi College School of Law's Center for International and Comparative Law, on International Humanitarian Law with a special focus on the protection of civilians in armed conflict. This event promises insightful discussion.

Date: 16th December

Time: 6 pm (IST), 4.30 am (PST)

Platform: MS Teams

Guest Panelists:

Professor Rachel VanLandingham, Southwestern Law School, Los Angeles, and President, National Institute of Military Justice

Professor Prabhash Ranjan, South Asian University, New Delhi

Professor Franklin Rosenblatt, Mississippi College School of Law, Jackson, and Vice-President, National Institute of Military Justice

The discussion would be followed by an interactive Q&A session.

Please fill out this simple registration form to secure your spot.

Charitable donation to NIMJ?

As you plan your annual program of charitable giving, please consider a donation to the National Institute of Military Justice. Details here.

Global Military Justice Reform is affiliated with NIMJ, as is CAAFlog.

Certiorari reform

The Conference Report on the National Defense Authorization Act for Fiscal Year 2024 includes a long-overdue provision that would permit U.S. Supreme Court review of court-martial cases in which the U.S. Court of Appeals for the Armed Forces has denied a petition for grant of review. The provision is § 533, which appears on pages 288-89 of the conference version of the bill. A brief explanation appears on unnumbered pages 2449-50 of the report.

"Plumbers, teachers, and a pastor"

Uganda again. Twenty-three civilians are among the 30 or 31 persons facing trial by court-martial at Makindye Barracks in connection with an alleged plot to overthrow the government. Details here.

Commonwealth Draft Document on Military Justice Principles

At a recent workshop in South Africa, an initial draft of the Commonwealth Military Justice Principles was prepared by judges, legal experts, academics, and military professionals.

The draft document resulted from a series of robust online discussions, culminating in two days of meetings at the Stellenbosch Institute for Advanced Study (STIAS) in the margins of the International Military Justice Forum.

At their meeting in November 2022, Commonwealth Law Ministers charted the agenda for a Commonwealth Military Justice Transformation Project. Now, this work is being carried forward by the Office of Civil and Criminal Justice Reform at the Commonwealth Secretariat.

The objective of the transformation project is to ensure alignment with international norms and standards in military justice systems across the Commonwealth. The drafting of the Commonwealth Military Justice Principles is at the heart of those aims.

The draft principles include harmonisation with international humanitarian and human rights law, guaranteeing the proper administration of justice through an independent and impartial judiciary that is free from interference and pressure from the other branches of government. The project also aims to guarantee due process of law and equal access to justice.

CAAFlog pop-up town hall

Short notice: at noon today, CAAFlog hold a pop-up town hall to discuss the Secretary of the Army's recent firing of Brig. Gen. Warren Wells, the service's lead special trial counsel. CAAFlog reports that it has arranged for lurking/anonymous participation in the zoom. Details here. Task & Purpose reports on the firing here.

State military justice

Wisconsin governor Tony Evers has signed into law several military justice related bills. From the desk of a member of the legislature:

Today, Governor Evers signed five bills championed by Rep. Kurtz into law.

Three of the bills, Senate Bills 166, 167 and 168, now 2023 Wisconsin Acts 47, 48, 49 are products of the Joint Legislative Study Committee on Wisconsin National Guard Sexual Misconduct Procedures that Rep. Kurtz chaired last summer. The federal National Guard Bureau completed an assessment of the Wisconsin National Guard (Guard) in 2019 that identified a number of concerns with how the Guard had handled allegations of sexual assault and sexual harassment. Under Adjutant General Paul Knapp’s leadership, the Guard has been diligently working to implement the recommendations contained in that assessment. The study committee identified a number of areas in which legislation will complement the Guard’s continuing efforts to ensure that the men and women who volunteer to serve our state and nation are able to do so in an environment that takes their safety seriously.

Act 47 makes a variety of changes to the Wisconsin Code of Military Justice. Some of the changes are fairly technical, but others include important substantive updates based on recent changes to the federal uniform code of military justice. For example, the bill draft creates new punitive articles within the state code to parallel articles added to the federal code, including an article addressing sexual harassment. It also modifies the state code’s article relating to sexual assault to align that offense with the same provision under the federal code. The bill addresses victims’ rights by requiring the Adjutant General to prescribe and implement a policy that ensures that victims of offenses under the code are treated with dignity, respect, courtesy, and fairness.

Act 48 requires the Adjutant General and the Department of Military Affairs to compile and submit certain reports annually. First, it requires the Adjutant General to annually submit a report that includes various information related to sexual assault and sexual harassment reported by members of the Guard. This report would not include any personal identifying information. Second, it requires the Department of Military Affairs to annually notify the Legislature of any recent changes to the punitive articles in the federal uniform code of military justice and make recommendations regarding whether the federal changes should be incorporated into the state code.

Act 49 simply requires the National Guard to establish and maintain a case management system that enables the Guard to manage and track all case-related information for cases of misconduct within the Guard. . . .

São Tomé e Príncipe

On November 24-25, 2022, there was an attack on a barracks in the island nation of São Tomé e Príncipe. Think: coup d'état. The attack was conducted by four civilians and some number of military personnel. All but one of the civilians died in the attack; the civilian's civilian-court trial began in September. The military accuseds are standing trial before what seems to be an ad hoc tribunal, with an equally ad hoc reviewing body, as described here. Excerpt:

The government of Sao Tome and Principe on Thursday swore in sixteen members of the Defence and Security forces to the first and second instance military courts that will judge the case of the attack and deaths that took place in a barracks last year.

The second instance court will be presided over by army colonel Leopoldo Vaz Fernandes, known as ‘Rambo’, while the first instance court will be presided over by Major Chadlid Deni da Costa Vangente, who was absent at the swearing-in ceremony, which was presided over by the minister of defence and internal administration.

“When the 25 November case reaches this court, it will be treated like all the others,” said Colonel Leopoldo Vaz Fernandes.

The new president of the second instance of the military court rejected opinions that the court “was only formed to judge the 25 November case”, adding, without specifying the numbers, that there are “many cases pending to be judged”.

The second instance court will also include two members of the Migration and Border Services (SMF), namely the deputy president, Superintendent Arnaldo dos Ramos, and the presiding judge, Elsa Maria dos Santos.

Major Kenete do Nascimento from the Armed Forces and Commissioners Daniel Chaves and Adelson Vaz Pereira, respectively from the Captaincy of Porto [Captain of the Port] and the Tax and Customs Police Unit, will also be judges of this military court, with Deputy Commissioner Acácio da Graça, from the SMF, as secretary.

The first instance court will have National Police Superintendent Domingos Frota Vaz as its substitute president, and the judges will be Lieutenant Captains Ramoon do Nascimento and Maiquel Madre Deus from the Armed Forces, Commissioner Simão Vila Nova from the National Police, and Sub-Commissioners Domingos Sanches and Cosme Pires Neto, respectively from the National Civil Protection and Fire Service (SNPCB) and the State Officers Protection Unit (UPDE).

Asked about the legal skills of the members of the military court to carry out military justice, the president of the court admitted that they will need “a lot of support”.

The research team here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza lacks a lusophone capability, so if any reader is able to shed light on what seems a jury-rigged procedure, we'll welcome help. The country's military code, assuming there is one, seems not to be available online.

Commonwealth military justice reform

"At a recent workshop in South Africa, an initial draft of the Commonwealth Military Justice Principles was prepared by judges, legal experts, academics, and military professionals.

"The draft document resulted from a series of robust online discussions, culminating in two days of meetings at the Stellenbosch Institute for Advanced Study (STIAS) in the margins of the International Military Justice Forum."

The full Commonwealth announcement can be found here.

Fair trial and military justice in Pakistan

In 2016, University of Hull Professor (and London practitioner) Niaz A. Shah wrote an article that remains timely: The Right to a Fair Trial and the Military Justice System in Pakistan, 7 J. Int'l Hum. Legal Stud. 330 (2016). It is available through Brill Nijhoff publishers or your institutional subscriber. The author concludes that Pakistan's military justice system blatantly violates fair trial standards and is neither independent nor impartial.

Now hear this

On December 1, 2023, the Navy issued change 2 to the Manual of the Judge Advocate General, JAGINST 5800.7G (2021). The revised version can be found here.

No. 135, NIMJ Gazette

 

Please note the Academic opportunity.

A worthwhile report on Pakistan's military court history and current issue

Muhammad Usman, Sohail Amjad & Muhammad Imran Khan, Judicial Boundaries: Understanding the Scope of Military Courts in the Pakistani Legal Framework, 4 Qlantic J. Soc. Sci. & Hum. 355 (Summer 2023). The authors conclude:

The historical presence of military courts in Pakistan is not a novel phenomenon; however, it is one that has consistently evoked scrutiny and discussion. In the annals of Pakistan's legal history, instances of military court establishment have occurred, with the higher judiciary steadfastly playing its role as a guardian of justice. Throughout this evolution, the bedrock principles of the separation of powers have stood tall, upheld by the judiciary through landmark judgments that echo the importance of a balanced and independent legal system. The crux of the matter lies in the enduring concept of the separation of powers, a principle enshrined in the constitutional fabric of Pakistan. The judiciary, through its jurisprudential wisdom, has consistently upheld this principle, emphasizing the delicate equilibrium between the executive, legislative, and judicial branches of government. The foundational doctrines of the basic structure, the rule of law, and the independence of the judiciary have been revered as guiding principles, serving as cornerstones in the edifice of Pakistan's legal framework. Despite the historical] underpinnings of military courts and their intermittent establishment, a critical evaluation of these institutions raises pertinent questions. The judiciary, in its role as the guardian of justice, has, through landmark judgments, delineated the contours of fundamental rights, the independence of the judiciary, and the sacrosanct concept of a fair trial. In the wake of these principles, the establishment of military courts appears, at times, as an irrational departure from the foundational tenets that underscore the legal system. The ongoing discourse surrounding the establishment of military courts demands a careful and  thorough examination of their compatibility with the constitutional ethos. While acknowledging the imperatives of national security, it becomes imperative to reconcile the exercise of military jurisdiction with the overarching principles that safeguard individual rights and ensure the integrity of the legal system. In conclusion, the establishment of military courts in Pakistan, though not an unprecedented measure, stands at a crossroads where the principles of justice, separation of powers, and the rule of law converge. The judiciary, with its storied legacy, continues to play a pivotal role in upholding the constitutional values that form the bedrock of Pakistan's legal system. The path forward requires a judicious balance—one that acknowledges the demands of security without compromising the fundamental rights and principles that define the nation's commitment to justice and the rule of law. As the legal landscape continues to evolve, the delicate equilibrium between military courts and established legal principles remains a dynamic arena, demanding continued vigilance and scholarly engagement.

History of the Coast Guard legal program, 1906-2018

Here's an interesting read about the U.S. Coast Guard's legal program starting in 1906. It's from late 2018, and has a lot of fascinating institutional history.