Military Justice Reform: The Next 20 Years

The program for the February 24 Norman J. Shachoy Symposium sponsored by the Villanova Law Review can be found here. From the official announcement:

The American military justice system has undergone waves of reform, and the most recent of these took place over the last decade. Spurred by a growing concern over the prevalence of sexual violence in the military, this reform culminated in the removal of commanders' power to exercise prosecutorial discretion over a category of primarily sex-related offenses. With this sea change now past us, it is an appropriate time to ask: “What next?”

The topic of this year's symposium, “Military Justice Reform: The Next Twenty Years,” will address that issue. Leading scholars, jurists and practitioners will come together at Villanova Law to discuss the most salient questions surrounding contemporary military justice.

Check the announcement for information about CLE credit.

Cart before the horse in Manila

One does wonder about appearances. In the Philippines, a brigadier general, his deputy, and five other members of the armed forces are suspected of murder. There are civilian criminal proceedings, but the armed forces are considering whether to charge the suspects for administrative (i.e., military) offenses as well. Strange that steps are being taken to set up a court-martial even though no charges have been referred for trial and the required pretrial investigation has not been conducted. The armed forces want custody during what may turn out to simultaneous prosecutions. Details here from the Mindanao Times's Rhoda Grace Saron.

High Court of Uganda to hear yet another challenge to court-martial of civilians

Thirty-one civilians facing trial by court-martial have sued in the Kampala High Court to block their trial and obtain release from pretrial confinement. All are members of an opposition political party. Details here. Uganda regularly tries civilians in courts-martial, despite contrary human rights requirements and, most recently, a decision of the country's Constitutional Court.

SEXUAL MISCONDUCT - CANADIAN MILITARY AND THE ARBOUR REPORT - MAY 2022

 

  

     In May 2021, the Honorable Louise Arbour, a former justice of the Supreme Court of Canada, was mandated to examine two key issues: sexual misconduct and leadership in the Canadian Armed Forces. During the course of her study, Justice Arbour conducted over 115 interviews of senior members of the Defence Team and other government officials. She also visited a number of defence establishments including but not limited to Royal Military College (meeting with over 330 people) and recruiting schools (meeting with 155 people). She also held town hall meetings and held focus group sessions with junior and senior officers as well and non-commissioned members on a number of CAF bases.

    In May 2022, she provided her final report to the Minister of National Defence and senior defence and military leaders.   Her report contained a total of 48 recommendations, most of which serving to eradicate sexual misconduct in the CAF. However, she also made specific recommendations pertaining to the future of the Royal Military College. I will be returning to this point later.

    Justice Arbour’s parting words in her report are worth repeating.

The CAF and the DND have an opportunity to take a major, decisive step in the creation of a safe, secure, equitable working environment, not only for women, but for the many others long left out of the profession of arms despite their desire and ability to serve. 

As challenging as it is, this organization must demonstrate enough humility to accept external help and open itself to the outside world.  [My emphasis]

Meaningful change will rest on the political will and determination of the civilians who oversee the CAF. Still, it will not happen without the support of CAF leaders and, ultimately, the goodwill of all its members who are, every day, entrusted with the duty to protect our country, and who do so on our behalf.     [My emphasis]

ROYAL MILITARY COLLEGE (RMC) – THE WAY AHEAD

In response to the various recommendations made by Justice Arbour about the operation of the Royal Military College, attached is an article titled "A changing role for the RMC" published in the January 2023 issue of Esprit de Corps military magazine written by Michel W. Drapeau and Joshua M. Juneau. This article is recommending reforms to role and structure of the Royal Military College. Specifically, it recommends that the role of the RMC be re-engineered as a national training institution for graduate strategic and defence studies .

OTHER ACTIONS TAKEN DURING PAST EIGHT MONTHS BY AUTHORITIES

•      There is no discernable action taken so far by the CAF/DND to address any of Justice Arbour’s recommendations.
•  .      There is no discernable action taken so far by the Canadian parliament to address any of Justice Arbour’s recommendations.

A case of the slows in Kampala

Derrick Kiyonga, writing here in The Monitor, traces the current slowdown in the adjudication of important cases by the Supreme Court o Uganda. Among the issues the court needs to address is the constitutionality of the exercise of court-martial jurisdiction over civilians. During the slowdown, the subordinate Constitutional Court has continued, by divided vote, to strike down the pertinent statutory provisions. Excerpt:

Critics of the Supreme Court like Mr Isaac Ssemakadde—the chief executive officer of Legal Brains Trust (LBT)—blame CJ Owiny-Dollo. They cite Rule 20 of the Supreme Court rules that states: “The sittings of the court and the matters to be disposed of at those sittings shall be determined by the Chief Justice and shall be advertised and notified in such a manner as the Chief Justice may direct; but nothing in these rules shall preclude the court from disposing of any business that has not been advertised or notified.”

CJ Owiny-Dollo told  Monitor that the delivery of judgments at the Supreme Court was complicated when Justices Muhanguzi and Paul Mugamba retired last year.  “We have not had justices until recently when [Justices Christopher Madrama, Elizabeth Musoke, and Stephen Musoke were appointed].”

Wartime military offenses tried in civilian court

But penalties are going up. President Volodymyr Zelensky has signed legislation to that effect, according to this Meduza report. Excerpt:

Under the new legislation, judges will no longer be allowed to give reduced sentences to service members convicted of disobeying a commander, failure to comply with orders, threatening or using violence against a commander, desertion, or unauthorized abandonment. The law also increases minimum sentences for misdemeanor offenses such as consuming alcohol while serving in the military.

The Indiana Exception

Military lawyers know all about the "vessel exception" that denies personnel attached to or embarked in a vessel the right others enjoy to turn down non-judicial punishment under Article 15, UCMJ. A bill in the Indiana Legislature would abolish that right for the state's National Guard and Air National Guard. It's controversial, as witness this latest news report.

CAAF 4-judge-bench denials of petitions for review (Aug. 1, 2021--Jan. 2, 2023)

The 5-member U.S. Court of Appeals for the Armed Forces had a vacancy from August 1, 2021 to January 2, 2023, Judge M. Tia Johnson having been sworn in the following day to fill the seat previously held by now-Senior Judge Scott W. Stucky. The Daily Journal does not reveal whether Judge Johnson voted on the one petition for grant of review that the court denied the day she was sworn in, or the next one it denied (on January 12, 2023). In fact, except in the very rare case in which there is a dissent from a denial, the Daily Journal is completely silent as to which judges have functioned on petitions.

During the 17-month hiatus, the court denied 336 petitions for grant of review, thereby depriving each of those petitioners of the right to seek certiorari from the Supreme Court of the United States. 

Although several of the court's numerous senior judges served during the 2021-23 hiatus for the hearing and decision of granted cases, only the four judges in regular active service functioned on petitions. The effect was to raise from 40% to 50% the fraction of the court needed for a grant of review.

CAAF proposes rule changes

Tomorrow's Federal Register will include a Notice of Proposed Rules Changes from the Department of Defense on behalf of the U.S. Court of Appeals for the Armed Forces. Can't wait? The Notice is available for public inspection here.  There is a 30-day comment period.

The proposed changes would affect Rules 3A, 13(b), 13A, 15(b), 19(a)(7)(B), 21, 24(b), 27(b), 36, 37(b)(2) and 39(a), as well as the Guidelines for Electronic Filing of Pleadings.

The court's current rules can be found here.

The summary observes:

Although these rules of practice and procedure fall within the Administrative Procedure Act's exemptions for notice and comment, the Department, as a matter of policy, has decided to make these changes available for public review and comment before they are implemented.

The court is, by law, located in the Defense Department for administrative purposes only. Which APA exemptions apply if the decision to make the proposed rules changes available for public review and comment was made by the Department ("as a matter of policy"), as the Notice recites, rather than by the court itself? The Department itself is not exempt from the APA. Should the court be taken out of the Department for all purposes? As described, the current arrangement needlessly raises a question of the court's independence.

Postscript: the Federal Register version of the Notice, 88 Fed. Reg. 4980, is now available here.

Article 18.2 Spanish Constitution

18.2 The home is inviolable. No entry or search may be made without the consent of the occupant or a legal warrant, except in cases of flagrante delicto.

In a recent judgment of the military chamber of the Spanish Supreme Court, the Court upheld the lower courts' rulings finding no violation of the Spanish Constitution when the superiors of a member of the Civil Guard (Guardia Civil) entered his room without consent or a warrant, in order to check on his health.

At 6:00 am, on the date when the Sergeant in charge took attendance of all the members of his unit he asked them about the whereabouts of a missing Civil Guard.  A Civil Guard named Teofilo, who shared a room with the missing Civil Guard, responded that he wasn't coming because he tried to awaken him, calling out his name and shaking him vigorously, at 5:50 am, as he was leaving, but to no avail.  The Sergeant and another official went to their room and called out the Civil Guard's name repeatedly, but given no response they decided to enter the room concerned about the Civil Guard's health, when they saw that the key was in the door lock. Once inside, they found the Civil Guard sprawled on the bed, in a deep sleep.  After calling out his name several times, they shook him vigorously to see if they could wake him up.  When he finally woke up, they told him it was 6:05 am and that he should put on his uniform and present himself to the unit.  When he was dressed it was clear from his breath and his dilated eyes that he had been consuming alcohol and he was taken to be tested.  He was tested and the amount of alcohol in his blood surpassed what was allowed and he was disciplined with loss of salary and functions for ten days.

The Civil Guard sought to have the disciplinary measure annulled and declared unconstitutional since the Sergeant and his aide entered his room without his consent breaching the inviolability of his domicile, set forth in Article 18.2 of the Constitution.  The fact that they found him inebriated should be thrown out since it is "the fruit of the poisoned tree," given that they entered the room illegally.

The Supreme Court said that no force was used to enter the room, since the key was in the lock and the superiors were entering the room to check on his health, since his roommate had informed them that he had tried to shake him and could not wake him up.  The fact that the superiors wanted to check on his health was justification enough for them to enter the room.  It is provided for in the law that the superiors are responsible for the protection and security of their personnel and to attend to their needs.  The superiors stayed in the room for as little time as possible, solely to verify the status of the Civil Guard and to test him for alcohol. The Court found that the doctrine of "the fruit of the poisoned tree" had no applicability here and affirmed the lower courts' rulings.

India's grievance redress system

Global Military Justice Reform contributor Wing Commander (ret) Dr. U C Jha writes here about Reforms in the Grievance Redress System. Abstract:

The members of the armed forces have been bestowed with the right to make complaints seeking the redress of their grievances. The provisions for the redress of grievance are contained in the three Services Acts and procedures have been elaborated in the Regulations. However, the regulations provide different procedures for the processing of grievance petitions, damaging the effectiveness of a statutory right. In reality, the grievance redressal system has various shortcomings, leading to the increase in the number of petitions filed in the Armed Forces Tribunal and the higher courts. There is need to replace the existing grievance redressal system with an effective, transparent, and non-vindictive mechanism which is a sine qua non of an efficient military organisation.

Major General Fortin cleared of wrongdoing

The spokespersons for the Canadian Forces (CF) have indicated that Major General (MGen) Dany Fortin has been cleared of wrongdoing and that an administrative review has concluded that “... he did not engage in sexual misconduct.”

Aaron D'Andrea, "Maj.-Gen. Dany Fortin cleared in military review of sexual misconduct allegation" (23 January 2023), online: Global News Network.

This should not come as much of a surprise.  In a Blog commentary approximately six weeks ago, I offered an analysis of key factors that should be considered in any such review.  I concluded that it would be difficult for any reasonable statutory decision-maker to conclude, even on the civil burden of proof ("balance of probability") that MGen Fortin had committed wrong-doing over 30 years ago. 

Rory Fowler, "MGen Fortin was acquitted.  Now what?" (6 December 2022), online: Law Office of Rory G Fowler

Granted, the requirement for procedurally fair, reasonable, open-minded, and transparent decision-making has not previously barred statutory decision-makers in the Canadian Forces from making unsupported and unreasonable decisions.  However, it appears that the level of public support for MGen Fortin, combined with the public scrutiny of the statutory decision-making following his acquittal before a civil court of criminal jurisdiction, convinced senior CF and governmental decision-makers from playing 'fast and loose' with principles of administrative law.  It is also possible that the unresolved appeal that MGen Fortin has brought before the Federal Court of Appeal has dissuaded the Minister or other political actors from interfering in this decision-making process.

Rory Fowler, "MGen Fortin’s Appeal" (3 October 2022), online: Law Office of Rory G Fowler

Application for judicial review by the Judge Advocate General of the Canadian Forces

On Friday, 20 January 2023, the National Post and other Postmedia newspapers in Canada published an article indicating that the Judge Advocate General of the Canadian Forces (JAG), Rear-Admiral (RAdm) Geneviève Bernatchez had filed a notice of application before the Federal Court of Canada, seeking to block the publication of a report into allegations of wrong-doing raised by one or more of the JAG's subordinates.

The news report raised as many questions as it answered.  Global Military Justice Reform contributor, Rory Fowler, expands upon this issue, and the questions arising therefrom, in his Blog here: 

"The JAG's Application for Judicial Review"

Lawyer's military court sentence increased on appeal

You read that right. Here are the details about the latest misuse of military courts to try civilians in Tunisia. Such trials violate international human rights jurisprudence. Tunisia is among the most frequent offenders. The list includes Egypt, Lebanon and Uganda, among others.

Is a member of a visiting force who is driving home on duty for SOFA purposes?

An interesting question was presented last November in a case involving a member of the U.S. Air Force who had an accident en route to her off-base home quarters. The decision of Deputy Senior District Judge Tanweer Ikram of the Westminster Magistrates' Court in R v Hayes can be found here. The court held that the prosecution had proved, a certificate from the United States to the contrary notwithstanding, that the defendant's conduct in connection with the traffic accident did not arise out of or in the course of her duty as a member of a visiting force.

H/T to Brig (ret) Anthony S. Paphiti, aka ASPALS, for the link.

Call for papers

The second International Military Justice Forum will be held at Stellenbosch, South Africa, on November 8-9, 2023. The announcement and call for papers can be found here. Proposals are welcome for both papers and panels.

What sentence would you have awarded? (spoiler: she got a severe reprimand)

Consider this case from New Zealand. What sentence would you have awarded? Indeed, since she left the Navy months ago, would you have even pursued it? If she's a civilian, was carryover court-martial jurisdiction consistent with contemporary human rights standards?

MAG opposes immunity for IDF personnel

With the advent of a new right-wing government in Israel, a storm is brewing over a plan to give immunity to IDF and security personnel. Details here, from the Jerusalem Post. The Military Advocate General is resisting the plan.

Plus ça change

A Ugandan court-martial has sentenced another civilian to jail. Details here: The odd thing is that only recently, the Constitutional Court of Uganda disapproved the trial of civilians by court-martial. Perhaps the civilian jailed in the latest case will seek relief in the civilian courts.

Martin Luther King Jr. Day

Un-uniform National Guard

While not a primary focus, we do, from time to time, look at how the State National Guards administer military justice. Each state approaches the issue differently. Some have adopted the federal UCMJ, some have adopted the ABA Model Code of Military Justice, and others leave it to civilian prosecutors to proceed in a civilian court for even military offenses. NIMJ has a link to the various NG laws here. Colonel Douglas Simon’s article Making the UCMJ More Uniform, Army Lawyer

No. 3, 2021, at 72, is helpful in understanding the lack of uniformity (scroll close to the end). Anyway, we came across Adam Yahya Rayes, Bill to make court-martialing Indiana National Guard easier advances, despite ‘due process' concerns. Wfyi Indianapolis, 12 January 2023.

Current state law only allows the governor to convene a general court-martial. HB 1076 would extend that power to the adjutant general, the governor-appointed senior military official for the state.

This change would mimic the UCMJ. The President and Service Secretaries (civilians) have the power under UCMJ art. 2, 10 U.S.C. § 802, to refer cases to court-martial. In practice, the general or flag officer commanding a particular jurisdiction (base, area, or large command) is the convening authority.

Because of the difficulties in getting the Governor’s approval, two sexual assault cases last year were disposed of through administrative separation. The civilian prosecutors who had jurisdiction had declined prosecution.

As presented, the article does not note anything much different from how active-duty cases are disposed of—until you get to the end.

HB 1076 would also take away the right for guardsmen to request a court martial instead of taking “non-judicial” or “Article 15” punishments for lesser offenses like returning late to post. That was a point of contention in the committee meeting Wednesday.

“I received an Article 15 for being late getting back to my post. And there were extenuating circumstances on that. Don't think I really deserved it,” said Rep. Chuck Moseley (D-Portage). “I feel a little uncomfortable with the possibility of not providing that individual with all the due process, options and avenues that might be available to him.”

Full house

Judge M. Tia Johnson took office as a judge of the U.S. Court of Appeals for the Armed Forces on January 3, 2023. Barring the unforeseen, the next vacancy will occur in 2028. 

Happy birthday to us!

Global Military Justice Reform went live on January 12, 2014 -- nine years ago today. Here's the first post.

Thanks to everyone who has helped the blog reach this milestone.

From the law reviews

Joshua Paldino, The First Amendment and Military Justice: Threats to Political Neutrality, 98 Notre Dame L. Rev. Reflection (2022). Congratulations to the author of this timely Note.

For your military justice bookshelf

Congratulations to former UK Judge Advocate General Jeff Blackett and Assistant JAG Darren Reed on the publication of the fourth edition of Rant on the Court Martial and Service Law. Anyone practicing in the Court Martial or in the military courts of other common-law countries, or concerned with military justice reform, will want to have this authoritative book in their professional library.

“Don’t drink too much, don’t take drugs, don’t rape women.”

 "Don’t drink too much, don’t take drugs, don’t rape women.” That's what Russian oligarch and head of the notorious Russian mercenary company the Wagner Group, Yevgeny Prigozhin, told ex-convicts employed by Wagner as they departed the frontlines for some rest in Russia, according to this Washington Post article. These ex-convicts, many secretly pardoned by Russian President Vladimir Putin in exchange for serving (aka dying) as "shock troops" on the frontlines of Russia's illegal and brutal war of aggression against Ukraine -- fought in large part by targeting, killing and torturing Ukrainian citizens -- apparently aren't subject to formal Russian criminal justice procedures, either military or civilian (shambolic and corrupt as they may be). 

Instead, the Post reports that many have been executed by the Wagner Group itself for violating Prigozhin's rules. While Russia's war and authoritarian government are to be strongly condemned on legal, moral, political and ethical grounds, Russian conscripts (largely from poorer regions of Russia, as middle and upper class buy their way out or have the means to flee) are to be pitied as they are forced to fight such an immoral, brutal war. While surely many of these Wagner Group ex-convicts are violent offenders who were serving just desserts in prison, they are to be pitied as well as the rule of law in Russia continues its spiral into utter desuetude.

Sexual misconduct in the Canadian Armed Forces

Zoë King of Toronto's Rubin Thomlinson LLP has this post on Sexual Misconduct in the Military on Lexology. It's the first of a three-part series. Excerpt (and teaser):

Why were the CAF’s efforts having little discernable impact? And if the military had the benefit of the recommendations from the assessments by Justices Deschamps and Fish, why did it retain Justice Arbour to conduct yet another assessment? Read the second post in this three-part series to find out!

A war crime in Mozambique?

There's a nasty story out of Mozambique; if true, heads will roll in the South African National Defence Force (SANDF). Details here. "The Southern African Development Community Mission in Mozambique (SAMIM) was trying to determine the authenticity of a video circulating online that appeared to show its soldiers burning the bodies of dead insurgents on a pile of trash."

The Missing Court-Martial Docket

Global Military Justice Reform contributor Prof. Stephen I. Vladeck (Texas) has written this substack essay on the U.S. Supreme Court's parsimonious review of courts-martial. His weekly newsletter is called One First (as in the Supreme Court's snail mail address).

A bad idea from Mozambique

A leading judge in Mozambique has suggested using military courts to try terrorists, according to this article from the North Africa Post. Excerpt:

Carlos Mondlane responds that the cases of terrorism in Mozambique should be judged based on the theory of the Penal Law of the Enemy, which provides severe penalties for perpetrators, and notes that the crimes of terrorism are considered to cause greater damage to the lives and property of people, and the perpetrators do not recognize the legitimacy and discipline of the State.

*  *  * 

For jurist José Machicame, this idea is controversial, because normally military courts are created during a period of war, and in the Mozambican case, the government has never declared a state of war, despite the fact that the northern zone is being affected by insurgency.

Mozambique has no military courts at present. 

New Hawaii Code of Military Justice

Effective January 1, 2023, members of the Hawaii National Guard and Air National Guard not in federal service are subject to a revised state Code of Military Justice. It's Act 286 of 2022. Like a number of other state codes, this one requires a nexus to military service for non-military offenses, unlike the Uniform Code of Military Justice.

Coming one of these days

Watch for a remake of The Caine Mutiny Court-Martial. Some details here.

Never underestimate a pro se litigant

The decision of the Supreme Court of Jamaica in Lloyd v. Dacosta, [2022] JMSC Civ 229 is discussed in this Jamaica Observer news article. A former sergeant in the Jamaica Defence Force has succeeded in setting aside his discharge on procedural grounds.

Recusal issue in Suriname

Should a judge preside when he and one of the victims share a grandfather? That disqualification issue is posed in the proceedings before the Supreme Court of Justice in Suriname, on review of the military court trial of, among others, former president Desi Bouterse. Details here

Air Force Prisons are Just the Worst

In an inverse of the top ranking the Air Force maintains over the other services in terms of fancy military housing and fine dining, the health and safety conditions of their military confinement facilities lags those of the other services. 

According to a GAO report, "most of the branches routinely assess whether their facilities adhere to established health and safety standards, but the Air Force does not." While Air Force partisans would argue that finding is not as adverse as the one against the Marines, a finding that states "Staffing shortages at Marine Corps facilities pose health and safety risks," these partisans would be wrong.   

The GAO report is a product, essentially, of the NDAA Fiscal Year 2021, and makes five recommendations to help the Air Force, and to a lesser extent, the Marines, clean up their act. The full report can be found here.   

CRS brief on U.S. Court of Appeals for the Armed Forces

The Congressional Research Service has released this brief issue paper on the U.S. Court of Appeals for the Armed Forces (CAAF). Excerpt on appeals to the U.S. Supreme Court (hyperlinks added):

Currently, the U.S. Supreme Court has jurisdiction over direct appeals of CAAF decisions only if the CAAF reviews the case in question. Since most of CAAF’s decisions result from petitions for grant of review, and since the CAAF denies most of those petitions, the Supreme Court does not have direct appellate jurisdiction over most military cases. Proponents of the current scope of review argue that it enables quicker final decisions in military cases and gives a court with special competence in military law substantial authority over military legal matters. Conversely, some argue that this limited review affords servicemembers less access to Supreme Court review than civilians. In light of these arguments, Congress may consider the scope of the Supreme Court’s jurisdiction over military cases as delineated in 28 U.S.C. § 1259.

The Military Justice Provisions of the National Defense Authorization Act for Fiscal Year 2023

This essay by the Editor is available here on Just Security. Please feel free to comment (real names only, please).

The case of the Carabinero forger

A member of the Carabineros de Chile was called upon to serve a copy of a Labor Court decision. Unable to find the person to be served, he forged the person's signature on the receipt. Held, by the Supreme Court of Chile, the part of the sentence that provided for discharge from the Carabineros and a permanent bar to reenlistment was excessive. In addition, the offense was civilian in character, so it was inappropriate to impose the peculiarly military additional punishment of a discharge. The court's decision can be found here.

Starting a new year off on the wrong foot

A civilian court in Mali has convicted dozens of Ivorian soldiers who were in Mali on a UN peacekeeping mission, The New York Times reports here. Excerpt:

“It is a difficult decision to bear,” said Moussa Traoré, the representative of Ivory Coast’s ruling party, who was in Bamako after the proceedings ended. “These are soldiers who are in the regular army of Ivory Coast.”

The soldiers were sentenced to 20 years in jail and fined more than $3,000 each. Three female soldiers, who were arrested along with their male colleagues but later released, were sentenced to death in absentia — the maximum penalty, given because they did not appear for their hearing in court.

The 49 soldiers were arrested in July and later charged with trying to undermine the external security of the state, conspiracy against the government, and carrying heavy weapons with the goal of disturbing public order. They were held in jail while Malian officials put the case together.

In effect, those convicted have become hostages through a completely improper closed trial. We'll be hearing more about this affair.