Memorial Day 2023

Which countries try civilians in military courts?

Ahmed Saeed provides this country-by-country summary on Voicepk.net. Uganda is missing, along with a few others.

Pakistan's May 9 protests and military trials

Imran Khan's political party has applied to the Supreme Court of Pakistan for a ruling on whether civilian "May 9" protesters can be tried under the Army Act. Details here.

Ahmed Saaed has written this explainer. Excerpt:

What does the Army Act Say? 

Section 2(1) (d) of the Army Act allows the trial of civilians in military courts, but that provision has a very narrow scope – per the same provision, only those civilians can be tried in military courts who stand accused of:

(i)  seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or

(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923

Colonel Inam-ur-Rahim, a retired official of the Army’s legal wing, Judge Advocate General (JAG) branch, says that under the current legal scheme, civilians accused of rioting cannot be tried under the Army Act.

“If the Federal Government or the Army wants to try the May 9 rioters, then they have to change the Army Act through the parliament as it was done in 2015,” he says.

A case challenging the validity of military trials of civilians has been pending before the Supreme Court of Pakistan since . . . wait for it . . . 2018. 

2022 Kevin J. Barry Award

The National Institute of Military Justice has announced the winner of the 2022 Kevin J. Barry Award. And the winner is Prof. Saira Mohamed (UC Berkeley). Congratulations!

Captain Barry was a founder of NIMJ. He served as a trial and appellate judge in the U.S. Coast Guard.

Are you planning to teach Military Justice?

The fourth edition of Fidell, Fissell, Rosenblatt & Sullivan, Military Justice: Cases and Materials (Carolina Academic Press) will soon be available. Publisher's details here. There will also be a new Teacher's Manual.

As with the prior editions, the fourth edition of Military Justice: Cases and Materials offers a rich and up-to-the-minute collection of sources on an important subject. The internationally known authors stress the basics of the American military justice system, including the application of constitutional rights, the surprising and controversial scope of subject matter and personal jurisdiction of courts-martial, the role of commanders in the administration of military justice, military juries, and the recent dramatic changes Congress has adopted to increase public confidence in the military justice system, especially in light of continuing broad concern about sexual offenses in the armed forces.

Timely topics such as the military death penalty, the persistent problem of unlawful command influence, professional responsibility, and judicial independence are explored, as are the Guantánamo military commissions and their historic antecedents. An important chapter focuses on summary proceedings, which account for the lion's share of American military justice but have historically received little attention. Another focuses on the avenues available for appellate and collateral review of courts-martial, including raising the important question of whether a specialized appellate court for military cases is warranted.

Adding to the rich domestic materials, the fourth edition includes comparative materials from foreign jurisdictions that, like the United States, seek to balance the need for disciplined armed forces and the demands of justice. The authors have included the full text of the "Yale Draft" update of the draft UN Principles Governing the Administration of Justice Through Military Tribunals, so students can have a sense of how the American military justice system fares in light of contemporary human rights standards.

Russia's new refuseniks

Elise Lambert reports here for FranceInfo on Russia's treatment of soldiers who refuse to serve in Ukraine. At left, the Vladikavkaz Garrison Military Court in session (official photo). Excerpt:

"Rehabilitation centers" for "refuseniks" have been opened by the Russian army, particularly in the Donbass, reported in November on Telegram, the independent Russian media Astra. The latter then evoked the possible presence of 300 soldiers. They were deprived of food, called "pigs" or unable to wash themselves. Based on the testimonies of parents of soldiers, Astra affirmed in April on Telegram * that this center located in Zaïtsevo, in the oblast of Donetsk, “was working again” after an interruption due to the revelations of several media.

In a video published in October on the social network by Astra, a soldier shows his living conditions in one of these centers. In a room where mold is appearing, he points to a bucket filled with a yellowish liquid that serves as a toilet, and soldiers piled up in a small room. Other men were sent to basements called "pits", where they were beaten, reports Mediazona  (article in English).

"The guys we saw coming back from the 'pits' were completely beat up. They were black all over: black backs, black legs."

(A Russian soldier in a letter sent to his father on Mediazona.)

Moreover, as mentioned by Courrier international, Ukraine and Russia respectively accuse each other of calling on "zagradotriady", "barrier units" responsible for dealing with deserters, sometimes in shooting them. "If the first ones don't shoot those who are retreating, they get shot themselves," said Oleksiy Arestovitch, adviser to the Ukrainian president. To put pressure on possible rebels, the Russian army also relies on Wagner's troops. In November, the Russian paramilitary group published a video showing the execution of one of its members who had deserted . . . 

About face!

Pakistan is going ahead with military trials for civilians who rioted in support of Imran Khan. Details here, courtesy of The Express Tribune.

Quaere: how come there had to be a constitutional amendment last time Pakistan did this, but now there is none? Pakistan joins such countries as Uganda, Egypt, Tunisia and Lebanon in repeatedly using military courts to try civilians.

ProPublica files amended complaint in public access lawsuit

ProPublica just filed an amended complaint in its lawsuit against DoD, the U.S. Navy, and military judge about press access in the United States v. Mays court-martial.

The amended complaint goes beyond the Mays case. It describes how ProPublica, a news organization, has been blocked from finding out basic information about Article 32 preliminary hearings and court-martial proceedings in other cases. It seeks mandamus against Defense Secretary Lloyd Austin for failing to implement rules for press access as required by UCMJ article 140a.    

The Navy and other services have seemingly ignored the press access command of Article 140a by invoking other laws such as the Freedom of Information Act and Privacy Act to justify secrecy and closed proceedings. ProPublica's amended complaint first challenges the FOIA rationale: 

66. According to a conference report, Art. 140a aimed “to provide appropriate public access to military justice information at all stages of court-martial proceedings. At a minimum, the system developed for implementation should permit timely and appropriate access to filings, objections, instructions, and judicial rulings at the trial and appellate level.” 162 Cong. Rec. H6376-03, H6884 (daily ed. Nov. 30, 2016). 

67. According to the Military Justice Review Group, obtaining access to court-martial records through FOIA is “time-consuming” and insufficient.14 This group proposed the new article to “enhance efficiency and oversight” as well as “increase transparency in the system and foster public access to releasable information.” Id. at 139. The new article aimed to provide “public access to all unsealed court-martial documents” as well as dockets “in a manner similar to that available in the federal civilian courts.” Id. at 28, 36. 

68. Congress generally intends “that, to the extent ‘practicable,’ trial by courtmartial should resemble a criminal trial in a federal district court.” United States v. Valigura, 54 M.J. 187, 191 (C.A.A.F. 2000). 

 ProPublica then challenges the Pentagon's Privacy Act rationale for secrecy:

80. The Privacy Act does not require automatic sealing of court records and does not supersede Art. 140a, the First Amendment, or common law 80. The Privacy Act restricts government agencies from releasing certain personally identifiable information without prior written consent, with numerous exceptions, including for disclosures required by FOIA. See 5 U.S.C. § 552a. The Act was “not designed to interfere with access to information by the courts.” 120 Cong. Rec. 36,967 (1974), reprinted in Source Book at 958–59, https://www.justice.gov/opcl/PAOverview_SourceBook/download. 

81. The Act only prohibits disclosure of a “record which is contained in a system of records.” 5 U.S.C. § 552a(b). “System of records” means “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5) (emphasis added). The Act does not apply to third parties whose names are referenced in court records, where the records are not retrievable by the third party’s name or identifier. Baker v. Dep’t of Navy, 814 F.2d 1381, 1384 (9th Cir. 1987). The Act also does not apply to documents unless they reflect “some quality or characteristic” about an individual and such person is the direct “subject” of the document, not an incidental reference to a third party. Unt v. Aerospace Corp., 765 F.2d 1440, 1449 (9th Cir. 1985). 

82. The Privacy Act must be read in conjunction with Art. 140a’s more specific requirements to permit timely public access to court-martial records and docket information at all stages of the proceedings. The Privacy Act also does not supersede the First Amendment and common law presumptions of access to court proceedings and records, described below. 

83. Nothing in the Privacy Act requires Defendants’ automatic denial of timely public access to all military court records, the permanent denial of access to key portions of court records, and the permanent denial of all case files in cases that end without a guilty verdict. Nor does the Privacy Act require preliminary hearings in court cases to be conducted in secret without notice to the public. 

84. In fact, the government sometimes publishes the charge sheet, search warrant materials, and notice of an Article 32 hearing, despite its claimed restrictions under the Privacy Act. 

85. The Army has posted court records in virtual reading rooms during certain court-martial proceedings, despite the Privacy Act. See, e.g., CCR v. Lind, 954 F. Supp. 2d 389, 403 (D. Md. 2013) (noting that during court-martial of Chelsea Manning, “the Army released to the public, on the internet, in readily downloadable form, the vast majority of the documents that had been filed”); United States v. Bergdahl, Hearing Tr. 112–13 (Attachment A to Govt. Response to Defense & ProPublica Motions for Release of Documents) (order by military judge requiring government to publish online, on an ongoing basis, unclassified court documents within 24-48 hours of filing).

The amended complaint alleges that initial Pentagon guidance on 140a has been out of date, out of line with Article 140a, internally inconsistent, and improperly vests discretion in military officials to determine public access rights. 

73. On January 17, 2023, about four months after ProPublica filed this lawsuit, Ms. Krass [DoD General Counsel] issued revised rules regarding Art. 140a. They affirm and enable the Navy’s existing policy of withholding timely access to military court records. Invoking the Privacy Act, the rules advise the military services that they do not have to make any records public until 45 days after the record is “certified” following trial, and then only if the accused is found guilty.17 Military Justice Case Management, Data Collection, and Accessibility Standards § IV(E)(2). Even then, similar to the JAG instructions, the revised rules say the services are only required to release limited parts of the record, excluding critical portions, such as any exhibits or evidence submitted to the court, any transcripts of the proceedings, or the Article 32 report. § IV(C)(2)-(3). 

74. Notably, the revised rules also allow the services to exclude Article 32 hearings from their dockets. § IV(C)(1)(a). 

75. Instead of “uniform standards and criteria,” the revised rules give the military services discretion to decide in “specific cases” whether to release “additional” records beyond those required to be released, whether to release them in a timely manner, and whether to release them in cases where there were no findings of guilt. § IV(F). In such cases, the revised rules state that the services “must balance the public interest in disclosure . . . against the privacy interests of the accused, minors, and victims of crimes after appropriate redactions are made.” § IV(F)(2). 

76. The rules provide certain non-exhaustive factors to consider: offenses involving property damage or loss greater than $2 million, offenses punishable by death with at least one aggravating factor, offenses resulting in death, grave breaches or serious crimes under the Law of Armed Conflict, proceedings involving an accused who is a general or flag officer or serving in a command billet in the grade of E-9 or O5 or above, or “other cases of potential high public interest, as determined under procedures established by the Secretary concerned.” § IV(F)(3). 

77. The Navy has not provided such “additional public access” with respect to any requests submitted by ProPublica. 

78. The revised rules acknowledge that the public’s right of access under Art. 140a is “distinct” from the right to request federal records under FOIA. § IV(F)(6). 79. The revised rules give the military departments 240 days—or by September 14, 2023—to issue revised regulations and until December 27, 2023, to “reach full compliance,” even though Congress already required their compliance with Art. 140a by December 2020.  

The case is Civil Action No. 22-1455-BTM-KSC in the U.S. District for for the Southern District of California, before Judge Ted Moscowitz. The amended complaint is Document Number 38. Since it was filed in federal court, the document is available to the public on PACER. 

No brakes

Pakistan seems to be speeding toward a revival of the use of military courts to try civilians. The latest is this assurance by the Defense Minister that those who are convicted will be able to seek relief in the civilian courts.

Retiree-jurisdiction redux

Lebanon's military court is trying a retired general. Details here. The country's military courts are also used to prosecute civilians with no connection to the armed forces.

2d International Military Justice Forum

On November 8-9, 2023, the second International Military Justice Forum will be held at Stellenbosch, South Africa, under the auspices of the Stellenbosch University Institute for Advanced Study, the Centre de Recherche, Académie Militaire de Saint-Cyr Coëtquidan, and the Institut de Droit et Défense, La Clinique de Droit de Saint-Cyr Coëtquidan. The program, available here, is fascinating, and includes a number of historical presentations that will be of interest to military justice scholars around the world. The final panel will be a tmely roundtable discussion of military justice reform in the Commonwealth. For further information and registration, click here.

Congratulations to Saint-Cyr's Prof. Gwenaël Guyon and his colleagues for organizing this important event.

The search is on

Global Military Justice Reform is always on the lookout for new contributors. Are there military justice developments in your country that would be of interest elsewhere? Please write to the Editor if you are interested in writing for the blog. Tragically, no one gets paid for doing this, but the psychic rewards are infinite. Did I mention the prestige?

SCBAP opposes military trial of civilians

Pakistan's Supreme Court Bar Association has come out strongly in opposition to the use of military courts to try civilian protestors, according to this article in The News International. Excerpt:

SCBA President Abid S. Zubairi, along with other officer-bearers, in a statement, said that at this juncture, it was important to address security concerns and maintain law and order. It is equally vital to uphold principles of justice and fairness.

Abid S. Zubairi

“As such, trials to be conducted under military courts may raise questions about transparency, impartiality and protection of civil liberties”, the SCBA president said, adding that it was crucial to ensure that all individuals accused of crimes were granted their fundamental rights (as enshrined in Articles 4, 8, 9, 10, 10-A and 14 of the Constitution). He said such courts might also lack civilian oversight and accountability as they were composed of military officers, and their procedures and standards of evidence might differ from those of civilian courts.

“The trial by military courts shall be unconstitutional,” Zubairi said, adding that it was equally important to strike a balance between security imperatives and protection of civil liberties, including the right to fair trial.

Here is an excerpt from an op-ed by a former press secretary to the President of Pakistan, presenting a very different view.

However, Pakistan is not the only country that supports military tribunals. The military courts in Egypt, which are also known as military tribunals, have jurisdiction over both military personnel and civilians in instances involving national security, terrorism, and other offenses relating to the armed forces. Military tribunals are courts that are similar to the military courts in the United States.[*]  Israeli military tribunals are in charge of prosecuting Palestinians in the West Bank and Gaza Strip for crimes under military law as well as for offenses relating to security. Cases involving military personnel for offenses under the Russian military justice system are heard in military courts in Russia.

Are you persuaded?

* Really? Are trials public? Is there a military judge with the protection of a fixed term of office and the power to make binding rulings on legal issues? Are all defense counsel attorneys? Is there a right to appellate review by a civilian court? Is there protection against command influence? [Footnote added.]

Where should sexual assault be tried?

The Defence Committee of the House of Commons has received evidence urging that sexual assault cases be tried in civilian courts rather than in the court martial. Details here. Excerpt:

The evidence was given by uniformed and civilian clinicians and administrative support staff offering care to service personnel and their commands.

They have been anonymised as have the personnel their claims relate to, the committee said.

The case studies paint a damning picture of progress made to address failures in protecting servicewomen which were first laid bare by the 2021 report.

Not funny

A Chinese stand-up comedian has come under attack for making a mild joke allegedly at the expense of the honor and reputation of PLA personnel. Details here, courtesy of China Daily. Excerpt:

Li Houshi should be aware of the seriousness of his mistake, as his behavior has already violated the law. On June 10, 2021, the 29th meeting of the Standing Committee of the 13th National People's Congress passed the "Law on the Protection of the Status and Rights and Interests of Military Personnel of the People's Republic of China", which clearly protects the honor and reputation of military personnel under the law. Among them, Article 32 of Chapter 3 stipulates that military personnel shall enjoy the honor they have earned for their entire life, and no organization or individual shall defame or denigrate their honor, or insult or slander their reputation in any way.

Protecting the honor and rights of soldiers through law is not unique to China, as the United States also has similar laws that prohibit insulting or mocking the military or military personnel. The most famous of these is the federal law "Uniform Code of Military Justice" (UCMJ), which sets out the behavior standards and discipline that military personnel must follow, including the prohibition of insulting or mocking the military[*] or military personnel. California has its state law, the "Anti-Ridicule Law", aimed to protect the dignity and honor of military personnel and ensure that they receive the respect they deserve.

Where to begin?

* Huh?

The Edwards Case -- judicial independence in Canada's military justice system

The appellants' factum in Edwards et al. v. H.M. The King, a major judicial independence case before the Supreme Court of Canada, can be found here. The brief argues, among other things, that a truly independent military judiciary requires civilian judges.

Fishy case in Uganda

While Uganda's Supreme Court dithers over a pending case challenging the military trial of civilians, the country's general court-martial is at it again, this time with the absurd prosecution of a civilian fishmonger for possession of a pair of army boots. Details here.

Must be a complicated case: the crime was committed in 2019.

"Can the military dispense justice?"

Dawn has this excellent detailed report by Shahzed Ahmed about current efforts to prosecute civilians, yet again, in Pakistan's military courts. Excerpt:

In its third press release in a week, the Inter-Services Public Relations all but confirmed what had been churning in the rumour mill ever since mass protests broke out against former prime minister Imran Khan’s arrest on May 9 — that the “spoilers” involved in the recent attacks on military installations will be tried “under relevant laws of Pakistan, including the Pakistan Army Act and Official Secrets Act”.

Simply put, the military intends to try the “planners, instigators, abettors and perpetrators of these attacks” on the army’s head office, the General Headquarters, in Rawalpindi and vandalising the Lahore residence of a high-ranking military officer in military courts.

While the modalities of such an endeavour have not been made public yet, there has been much debate over the military courts’ jurisdiction to try civilians ever since they were given the green light to do so in 2015.

 Amnesty International has spoken out strongly here against the proposal.

Here we go again

Faced with continued disturbances involving supporters of former Prime Minister Imran Khan, Pakistani authorities are reportedly considering returning to the use of military courts to try civilians. Details here.

This will not end well.

Peace of Westphalia

A dear friend in Germany has sent the Editor a link to the City of Münster's excellent website on the 375th anniversary of the Treaty of Westphalia. Excerpts:

We are celebrating the "Miracle of Westphalia" -- the Peace of Westphalia, which was concluded in Münster and Osnabrück in 1648, now 375 years ago. In 1648, something was achieved whose world-historical significance we can only grasp in retrospect: Here, a foundation was laid for modern international law and for the emergence of a European peace order of equal states.

*  *  * 

The consequences of the Peace of Westphalia can still be seen in current times. Perhaps more interestingly are the issues that needed to be resolved beforehand. For example, the sheer size of the Peace Congress, as there had not been a similar size congress, as all actors wanted to be present. Münster and Osnabrück provide a stage for all of Europe, meaning that all eyes were on the Peace Congress that took place at these two cities.

A Peace congress of this magnitude also brought new questions along, such as; how to rank the participants, who among the emperor's war opponents should have protocol precedence at such a congress: The French king? Or the Swedish crown? How should a Catholic Spanish count speak to the heretical Calvinists of the Netherlands? And many others. The answers to such questions were not easy to find, but were at times amazingly creative.

This online presentation could not be more timely or more important.

Military courts in Spain now on LexNET, comparable to PACER in the US

LexNET is a platform of secure exchange of information among judicial bodies and a large diversity of judicial operators, who in their daily work need the interchange of judicial documents such as notifications, complaints, and briefs.  LexNET also provides access to the public to judgments, similar to PACER (Public Access to Court Electronic Records) in the United States.  Since April 24, 2023, the military tribunals in Spain, located in Madrid (First), Sevilla (Second), Barcelona (Third -- see photo), La Coruña (Fourth) and Santa Cruz de Tenerife (Fifth), plus 18 military courts throughout Spain are now on LexNET.  Consequently, military justice in Spain is now completely on LexNET, unlike military courts in the US, which are not on PACER.  Perhaps they will follow suit.

Russia's AWOL caseload

Meduza reports here on the rising number of desertion prosecutions in Russia's military courts. Excerpt:

In the first four months of 2023, Russian military courts heard 1,053 felony cases under the Criminal Code’s article against “unauthorized abandonment of a military unit,” which can carry a punishment of up to 10 years in prison. That’s more cases than in the entirety of 2022 (when courts heard 1,001 such cases), according to the independent outlet Mediazona, which took its data from the official websites of Russia’s military courts.

The majority of cases (992) that made it to court in the first part of 2023 were opened after Russia ramped up punishments for “crimes against military service” (which include insubordination, resisting a superior, abandoning one’s unit, desertion, and others) and began its “partial mobilization” campaign.

According to data from the Judicial Department at Russia’s Supreme Court, 1,083 people were convicted of “crimes against military service” in 2021, while the number rose to 1,379 in 2022.

Of particular interest:

At the same time, a large portion of “unauthorized abandonment” cases end in probation sentences. This allows the authorities to send defendants back to war rather than to prison. Putin’s mobilization order explicitly bans the dismissal of convicted soldiers who aren’t given jail time.

This is reminiscent of the practice during the Vietnam War of sentencing U.S. military personnel to "six, six, and no kick," -- i.e., a spell in the brig but no punitive discharge, meaning . . . back to the field. 

Also of interest is the availability of online information about Russian military prosecutions and sentences. How do Russian military court websites compare with those of the U.S.? If any reader is in a position to compare them, please comment.

Canada: Election for court martial -- the process may now be moot, but underlying issues remain pertinent

On 27 April 2023, Justice Zinn of the Federal Court of Canada handed down his judgment in Noonan v Canada (Attorney General), 2023 FC 618.  This judgment related to two separate applications for judicial review that were heard jointly, as they involved the same central issue: prior to the significant alteration of the Code of Service Discipline, when elements of Bill C-77 came into force on 20 June 2022, when was a member of the Canadian Forces (CF) entitled to elect trial by court martial when charged with one or more offences under s 129 of the National Defence Act - conduct, acts, or neglect to the prejudice of good order and discipline?

The Office of the Judge Advocate General (OJAG) appeared to rely upon a problematic, overly-broad, interpretation of art 108.17 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which was in force until 20 June 2022.  This problematic interpretation -- which was clearly inconsistent with the modern principle of statutory construction in Canada -- led to successful applications for judicial review, and the quashing of convictions against two CF members.

The specific right to elect trial by court martial when charged under the Code of Service Discipline has been rendered moot by the implementation of 'service infractions' and 'summary hearings' under Bill C-77, the provisions for which came into force on 20 June 2022.  Now, 'service offences' can only be tried by court martial.  The less serious 'service infractions' can only be tried before summary hearings.

However, while the interpretation and application of (the now defunct) art 108.17 of the QR&O may be moot, the underlying issue of fairness of the Code of Service Discipline, and the confidence that members of the CF, and the public at large, can have in the administration of justice within the CF, remains open to debate.

Global Military Justice Reform contributor, Rory Fowler, expands upon that issue here: 

Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications

AWOL from Ukraine

The New York Times has an extensively reported piece about Russians refusing to fight in Ukraine, including details on the legal and extrajudicial punishments they face. I cannot summarize the article and do it justice, as the Times presents many anecdotes and data, even without a central repository of information detailing the number of Russian refuseniks. 

The piece frames their reporting around Maj. Mikhail Zhilin, a reluctant officer disillusioned with Russia before the war, who fled his country after he was ordered to Ukraine. Along with his unsuccessful attempt at political asylum, the reporting describes a substantial number of other Russians who refuse to fight in Ukraine, even in the face of severe consequences.

The article made me wonder, comparatively, about Ukrainian Soldiers who refuse to fight as well as Americans who deserted during recent conflicts. A quick google search failed to produce articles suggesting the Ukrainian military is dealing with the same rate of desertions, or with morale issues of military men openly questioning the rationale for war. 

The lack of reporting of Ukrainian desertions, though, makes me wonder more about the pro-Russian sentiment I see on social media, especially among peers I wrongly thought would see this as an aggressive Russian war. I know these peers would point me to more Russian friendly news sources to refute the idea that Russian wrongly started the war, or to rebut that Russia faces a morale problem. 

And that disagreement over what seems like obvious truths just draws me down the rabbit hole of wondering about the role of social media in our modern world. As we are exposed to more information, did social media expose the uncertainty inherent in our world? Or does it merely offer a venue for those to disassemble in the face of self-evident facts? In any case, without exploring those issues any further, that New York Times article presents some compelling information about Russians AWOL from Ukraine. 

R-e-s-p-e-c-t

Call the Editor old-fashioned, but he kind of liked being a "law specialist" rather than a "judge advocate" when he was on active duty back during the Taft administration. Nonetheless, he also likes what he sees in the Coast Guard's new insignia for lawyers. Details here.

What do you think? BZ to LCDR Brett McCall, USCG, of Sector Detroit, for the design.

Back to the future

Is Taiwan going to reinstate its military courts? Consider this news report from ICRT (International Community Radio Taipei):

Discussions of whether to reinstate the system of court martial are ongoing, that's according to the Ministry of National Defense.

In a recent written report to the Legislature, the M-N-D indicated that if society reaches a consensus on the reinstatement of court martial, the Ministry will launch the procedures of amending the existing law.

The amendments to the Military Trial Act in 2013, which stripped the military of its power to prosecute and punish its own personnel during peace time, meant military jails were closed and military courts shut down in 2014.

However, the voices of reinstating them grew louder last year due to many incidents that proved civilian courts couldn't meet the demands of the armed forces.'

Many lawmakers from across the political spectrum have also expressed their support for reinstating the court martial system.

Brrrr

What are the military criminal investigative organizations doing about "cold cases"? Drew F. Lawrence has the story here for Military.com. Excerpt:

Until last year, the Army didn't have a formal unit to try to close those kinds of difficult investigations. Now, under the shadow of decades of military cold case history and unyielding pressure from families and Congress, the Army is finally building one.

Other services created specialized cold case groups years ago, but the Army held off until February 2022 when its Criminal Investigation Division established the cold case unit.

And while the Army fought major wars in Afghanistan and Iraq, the cases of those mysteriously lost were left stranded on the CID's Cold Case roster, haunting reminders to families who may never see their loved ones again or find closure in burial.

Cases of reported sexual assault in the military keep rising, but you wouldn’t think so if you look at how many suspected perpetrators actually end up being tried, much less punished for their alleged crimes. The services charged fewer suspected sexual assault perpetrators with crimes in 2022 than in the previous decade, according to data released Thursday in the Pentagon’s congressionally mandated annual sexual assault report.

From this article by Meghann Myers in Navy Times

New chief judge in Bolivia

Vice Admiral Victor Montero Arancibia has been appointed president of Bolivia's Court of Military Justice. Details here.

Criticizing the armed forces

Russia's Constitutional Court has been asked to rule on the validity of a law that penalizes criticism of the armed forces. Details here, thanks to The New York Times. Excerpt:

More than 6,500 Russians have been penalized for “discrediting” the Russian Army since the law was passed by the Russian Parliament eight days after the full-scale invasion of Ukraine began in February 2022, the lawyers said. People found to have broken the law are fined for a first offense, but conviction of another offense within a year can result in up to five years in prison.

A few other countries, such as Tunisia, Lebanon and Venezuela, criminalize insulting the armed forces and/or the flag.

Portrait gallery

H/T to Col. Dwight H. Sullivan, USMCR (Ret), for this handsome addition to the Global Military Justice Reform portrait gallery. Honk if you recognized Col. William Woolsey Winthrop.

Sikhs v. Marine Corps

Senior Judge Richard J. Leon of the U.S. District Court for the District of Columbia has signed off on new rules governing the accommodation of Sikh religious requirements by the U.S. Marine Corps. Details here.

Chief Justice of the Court Martial Appeal Court of Canada announces his retirement

Chief Justice of the Court Martial Appeal Court of Canada (CMACC), B. Richard Bell, announced his retirement by posting his retirement letter on the website for the CMACC.  The letter, addressed to Prime Minister Justin Trudeau, the Minister of Justice (and Attorney General), David Lametti, and the Minister of National Defence, Anita Anand, indicates that Chief Justice Bell will retire from his position as Chief Justice of the CMACC, as well as his position as a puisne Justice of the Federal Court and ex-officio judge of the Federal Court of Appeal), on 30 October 2023.

Chief Justice Bell indicates that, at the time of his anticipated retirement, he will have served as Chief Justice of the CMACC for nearly 9 years.  What his letter does not state is that he was first appointed to the bench nearly 17 years ago, on 27 June 2006, when he was appointed to the (then) Court of Queen's Bench, Trial Division, for the Province of New Brunswick.  He was elevated to the New Brunswick Court of Appeal the following year, on 22 June 2007, and was subsequently appointed to the Federal Court on 6 February 2015, simultaneously appointed as a judge of the CMACC and designated its Chief Justice. 

Where should this case be tried?

Five uniformed judges in Guinea-Bissau have been suspended for refusing to try an attempted-coup case over which they believe they have no jurisdiction, according to this article. They claim the matter should be tried in the civilian courts, and are appealing their suspension.

A question of honour? The trial of Admiral John Byng

On 14th March 1757 a detachment of Royal Marines conducted an execution by firing squad aboard HMS Monarch in the Solent; the prisoner was the Hon. John Byng, Admiral of the Blue.  A year earlier Byng had been ordered to relieve Minorca, a British possession since 1708 which was of great strategic value in Great Britain's on again, off again conflicts with France, a tradition since 1066 (and all that). Unfortunately, due to another fine British tradition, the Royal Navy had been subject to defence cuts since the 1740s and was not prepared for what was to become the first global war. Britain would follow this tradition in each of the global conflicts that followed. 

Outnumbered, outgunned, lacking sufficient marines to break the siege of Port Mahon, the capital of Minorca, Byng sailed forth. On the 20th May 1756 Byng fought an indecisive engagement off the coast of Minorca during which the fleet suffered significant damage. Although Byng remained in situ he still lacked ground forces to break the siege. After four days a council of war voted unanimously to withdraw to Gibraltar. Shortly thereafter a furious Admiralty, no doubt conscious of their culpability for Britain's readiness for war, recalled Byng to England, arrested and charged with a breach of Article 12 of the Articles of War. 

What followed aboard HMS St George was one of the most sensational courts-martial in history. Under enormous political and public pressure, the court-martial determined that Byng had not shown cowardice but had 'failed to do his utmost'  and sentenced him to death, the only sentence available. The King, George II, declined to exercise the royal prerogative of mercy and Byng fell 'a martyr to political persecution' according to his tomb. Voltaire uttered the immortal line 'pour encourager les autres' and a fierce debate began, which rages to this day as the to the legal, ethical and military legitimacy of the conviction and sentence. More ink has been spilt to defend or damn Byng in the intervening centuries than blood at Minorca. 

Alexander Kent, a student reading for an MA at Dalhousie University in Nova Scotia, had recently added to the debate from a very different angle with a dissertation considering 'How Honour influenced the Court Martial and Execution of Admiral John Byng'. Kent's thesis is that each party in the trial and the ultimate authority, the King were guided in the decisions they made by their own considerations of Honour. Ultimately, he suggests, the Court Martial was an effort to repair and protect the honour of those involved. 

Kent's work is an interesting reconsideration of what remains an important topic even after all this time. Whatever the legalities of the proceedings and the motives of the participants the story of Adm Byng continues to influence, perhaps unknowingly the Royal Navy and the military justice systems which grew from the Articles of War. Perhaps fatally for Byng he failed to pursue the withdrawing French fleet after the Battle of Minorca, albeit for sound reasons. However, almost ever since the Royal Navy has had a much more aggressive approach embodied by Nelson who was born the year after Byng's death. I recall from my own undergraduate work the fates of HMS Glowworm and HMS Jervis Bey, who went into action in conditions far more disadvantageous than Byng faced. Additionally, the Royal Navy's attitude to military justice system is often (in this author's experience) sterner than other services. One judge advocate with a naval background, who shall remain nameless, commenting that what we need is "quick, dirty justice". 

Kent has a lot to cover in this dissertation in order to bring to the reader the complexities of the naval situation, the political scene and notions of honour starkly different to those of our own age and he manages a fine overview. It would have been good to have more detail in relation to some of the facets of his thesis, particularly Byng's decision not to contest parts of the prosecution case on grounds of honour, a notion entirely foreign to this defence advocate. Honour is of course a very difficult term to define but on occasion there appeared a number of unsupported assertions. Although that probably displays the reader's ignorance rather than anything else. It is an interesting addition to the ongoing debate around the Byng case and a useful reminder to those who practice in the courts-martial which come after Byng to continue to re-examine the shared roots of our systems in order to guard against assumption and tradition for tradition's sake...fiat justitia ruat caelum.

Coming soon to a law school classroom near you

The fourth edition of Military Justice: Cases and Materials (Carolina Academic Press) will be out this summer. The authors are Frank Rosenblatt, Brenner Fissell, Dwight Sullivan and the Editor. From the publisher's webpage:

Carolina Academic Press is excited to offer the fourth edition of Military Justice: Cases and Materials. As with the prior editions, the book offers a rich and up-to-the-minute collection of sources on an important subject. The internationally-known expert authors stress the basics of the American military justice system, including the application of constitutional rights, the surprising and controversial scope of subject matter and personal jurisdiction of courts-martial, the role of commanders in the administration of military justice, military juries, and the recent dramatic changes Congress has adopted to increase public confidence in the military justice system, especially in light of continuing broad concern about sexual offenses in the armed forces.

Timely topics such as the military death penalty, the persistent problem of unlawful command influence, professional responsibility, and judicial independence are explored, as are the Guantánamo military commissions and their historic antecedents. An important chapter focuses on summary proceedings, which account for the lion's share of American military justice but have historically received little attention. Another focuses on the avenues available for appellate and collateral review of courts-martial, including raising the important question of whether a specialized appellate court for military cases is warranted.

Adding to the rich domestic materials, the fourth edition includes comparative materials from foreign jurisdictions that, like the United States, seek to balance the need for disciplined armed forces and the demands of justice. The authors have included the full text of the "Yale Draft" update of the draft UN Principles Governing the Administration of Justice Through Military Tribunals, so students can have a sense of how the American military justice system fares in light of contemporary human rights standards.

A Teaching Manual will also be available.

Se habla justicia militar?

Civilian and military prosecutors in Andalusia recently held what seems to have been a productive conference in Granada. Details here (en español). A useful idea for government attorneys elsewhere?

Just insert the word "not"

There's a scene in Act II of Sir W.S. Gilbert and Sir Arthur Sullivan's delightful Iolanthe where the Lord Chancellor resolves a tricky problem of interpretation by the convenient step of inserting the word "doesn't."* It turns out that legislators in Nevada have had the same idea, as witness this article about how that state's military personnel lost the right to turn down non-judicial punishment. Contrary to the article, however, Nevada is not the only state that has revoked that time-honored right: Indiana just did it. 

* "Allow me, as an old Equity draftsman, to make a suggestion. The subtleties of the legal mind are equal to the emergency. The thing is really quite simple--the insertion of a single word will do it. Let it stand that every fairy shall die who doesn't marry a mortal, and there you are, out of your difficulty at once!"

Comme d'habitude

Uganda's general court-martial has handed down 20-year sentences to 32 resident Kenyan civilians who were convicted on weapons charges. Details here.

One of these days, the country's civilian courts will decide once and for all whether their statute subjecting civilians to military trial is constitutional. The issue has been pending for a long time.

Extensions of time

Ever wonder how often the U.S. Court of Appeals for the Armed Forces grants extensions of the time in which to file the supplement to the petition for grant of review? In the 12 months ending March 31, 2023, the court granted all 159 such requests. Of these, 123 were initial requests, 28 were second requests, and 8 were third requests. None were denied.

ProPublica report on Army administrative separations in lieu of court-martial

ProPublica, The Texas Tribune and Military Times have just released this report on their detailed analysis of cases in which U.S. Army personnel suspected of criminal conduct were permitted to avoid trial by court-martial by leaving the service. Two questions that deserve further attention:

• How many of the offenses would have been found non-service-connected (and hence outside court-martial jurisdiction) before Solorio v. United States?
• What prevented local authorities from pursuing criminal charges notwithstanding the accused's administrative separation?

Jurisdiction over retirees

The Congressional Research Services has issued this short report by Andreas Kuersten on court-martial jurisdiction over retired military personnel. 

H/T to Col. (ret) Jim Young for the link.

Signed, sealed and delivered

Gov. Eric Holcomb

The governor of Indiana has signed into law a bill that, among other things, ends the right of the state's National Guard and Air National Guard personnel to reject non-judicial punishment. The measure can be found here.

Military Law Pt. II (View From the North)

Global Military Justice Reform contributor Rory Fowler and the Editor resume the conversation on ThinkTech Hawaii. Tune in here.

"A bespoke system"

HHJ Alan Large, Judge Advocate General of H.M. Forces, is interviewed here for the Fauji Days oral history project, direct from Chandigarh. This informative interview with Cadet Sohraab Singh is titled "The Justice System, Military Justice, and the Commonalities of Rule of Law."

Sexual assault in the Irish Defence Forces

Watch for new Irish legislation concerning overseas sexual assaults in the Defence Forces. Details here.

There are situations in overseas deployments where military police will continue to deal with allegations of sexual assault in the Defence Forces as An Garda Síochána does not have the jurisdiction to do so, Tánaiste Micheál Martin has said.

Mr Martin, who is also the Minister for Defence, said legislation will be amended to provide a legislative basis to enable any type of allegations of sexual assault in the Defence Forces in the State to be referred to An Garda Síochána.

The Report of the Independent Review Group on Dignity and Equality issues in the Defence Forces was issued on March 28, 2023.

For your bookshelf

Richard Kammen has written a novel (or is it?) based on his service as a military commissions defense counsel at Guantánamo. Here's an NPR interview about Tortured Justice Guantánamo Bay.

Tunisia slow-rolls on misuse of military courts

Middle East Monitor reports here that Tunisian authorities are dragging their feet in response to international demands that the country stop trying civilians in military courts. "Authorities in Tunisia postponed responding to 12 recommendations concerning the trial of civilians before military courts, but accepted 17 related to supporting judicial independence, establishing the Constitutional Court, enacting the protection of judges and supporting legal aid."