Failure to maintain financial discipline?

Is that a crime? A pending case involving a Nepalese major general may shed light on the matter. For details, consider this article from myRepública. Excerpt:

If the information provided by the military headquarters is taken into consideration, then the investigation conducted against Major General [Prem] Shahi and two other officers and the trial process conducted in the military court appear to be illegal according to the Army Act, 2006.

Section 7 of the Army Act has provisions relating to offences and from Sections 38 to 65 of the Act mention 27 offences.  But none of the above sections has any provisions related to offense under the title of 'not maintaining financial discipline'. Offenses relating to 'discipline' and 'corruption' are under separate headings. Similarly, in section 66, murder and rape are included as crimes under other laws "unless it is between soldiers". 

Likewise, Section 52 has legal provisions for disciplinary and conduct-related offenses. Even this section of the military Act has no provisions related to financial discipline. The provisions related to corruption are included in Article 62. In this section, it is mentioned that there are special provisions related to crimes of corruption, theft, torture and disappearance. 

Lack of financial discipline is associated with corruption. But the Court of Inquiry does not have the authority to investigate and adjudicate corruption offenses under Section 62. That power has been given to a three-member special committee under sub-section (2) of the same section. The special committee chaired by the Deputy Attorney General appointed by the Government of Nepal, the Chief of the Legal Branch of the Ministry of Defense and the representative of at least one official of the Judge Advocate General's Department of the Nepalese Army has the right to look after this issue.

According to the Act, the hearing and settlement of corruption-related offense cases is done not by the military court as per section 67, but by the special military court as per section 119. Sub-section 1 of Section 119 has a provision of setting up a military special court for such cases.

Where should these cases be tried?

Justice Alexandre de Moraes of the Supreme Court of Brazil has indicated that both civilians and military members suspected of involvement in the January 8 disorder in Brasília will be tried by the country's civilian courts, according to this account. Excerpt:

"I establish the competence of the Federal Supreme Court to process and judge the crimes that occurred on January 8, 2023, regardless of whether those investigated are civilians or military," the judge reported in his decision.

In addition, Moraes also authorized the Federal Police to investigate members of the Armed Forces and military police related to the coup attempt in Brasilia.

By authorizing this investigation, the judge justified that some military policemen already interrogated indicated "the possible participation and/or omission of the Brazilian Army military, responsible for the Institutional Security Cabinet and the Presidential Guard Battalion."

Military court chaos in Somalia

Practitioners from time to time refer to cases as "a shoot-'em-up trial." The phrase definitely comes to mind in connection with this Garowe Online account of events in Somalia. The case has it all -- fatal waterboarding, gunfire, assassination of a battalion commander, and a hard-charing prosecutor in a country without functioning civilian courts.

New Veterans Law text

Carolina Academic Press has announced a new edition of Veterans Benefits: Law, Theory, & Practice, by Stacey-Rae Simcox and David E. Boelzner. From the announcement:

Those wishing to learn about veterans benefits law have essentially two types of resources available: traditional casebooks inviting an analytical law-school type approach or a comprehensive, but highly detailed, lengthy manual. Neither is entirely suitable for the sort of instruction needed by students in law school clinics assisting veterans or by other advocates wishing to quickly acquire the necessary understanding of law and procedure needed to represent veteran claimants.

Veterans Benefits: Law, Theory, and Practice aims to meet that need. The book presents the statutory and regulatory provisions pertinent to the issues that commonly arise in pursuing claims for veterans and their family members, and it includes copious relevant cases, summarized with follow-up questions for discussion. But the textbook also contains straightforward practical explanation about how to work through claims and work with the government bureaucrats who process them. Realistic hypothetical claims in the form of client interview vignettes allow students to apply what they learn.

The book:

• Explains the complex and often bewildering VA claims system;
• Helps students and other advocates understand the intricacies of that system and how to navigate it;
• Challenges students with realistic and practical problems similar to what they will encounter in their clients’ cases; and
• Provides the practical advice and stimulates the development of the advocacy skills, including writing, necessary to provide veterans with competent and successful representation.

Swiss fighters in Ukraine

SwissInfo reports here that the Swiss Military Justice System is investigating Swiss citizens who have gone to fight in Ukraine. Excerpt:

Seven proceedings are currently underway, a spokesman for the Office of the Attorney General told the Swiss News Agency Keystone-SDA on Thursday, confirming a report in newspaper BlickExternal link.

All seven proceedings were reportedly initiated after the beginning of the Russian invasion of Ukraine a year ago. They concern the suspicion of performing foreign military service.

Under Swiss military criminal law, foreign service – such as being a mercenary – can be punished with a prison sentence of up to three years or a fine. However, it is uncertain whether the proceedings will ever be concluded. Investigations are very difficult in the case of a country at war, according to the military justice.

One wonders what the basis is for exercising military rather than civilian jurisdiction. Perhaps those being investigated are reservists in the Swiss Armed Forces?

The Next Twenty Years

On Friday, the Villanova Law Review hosted a symposium on Military Justice Reform: The Next Twenty Years. The Editor, taking the day off from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, was one of the panelists, and offered these remarks:

The stated topic for this panel is the jurisdictional boundary between civilian and military criminal justice, or, more broadly, the desirability of continuing to maintain a separate military justice system or separate military courts. These two ways of framing the topic are related but they are far from the same thing.

BLUF, as they say: in my view, 

    (1) a separate military justice system should be maintained, but

    (2) its judicial architecture needs to be changed in several important respects, and

    (3) its reach should be reduced as to both subject-matter and personal jurisdiction. 

In the remarks that follow, please note that I am in general speaking from a policy perspective; some of what I have to say is not, under current jurisprudence (with which I disagree), constitutionally mandated. As a result, the ultimate audience for these comments is not the courts, but Congress and the Executive Branch, each of which could do things that go beyond what the Supreme Court has told us the Constitution demands.

There is nothing wrong, in principle, in having a military justice system. The Constitution and original practice contemplate such a system. Nor does human rights jurisprudence forbid such a system. So the first question is really quite an easy one. On the other hand -- and here I’m addressing friends who question our even having a military justice system -- the fact that such a system is lawful does not necessarily mean it is wise. I’m satisfied that it is both, but I do want to make some changes, at least one of which (equal access to the Supreme Court) is required by the Constitution.

There is a good deal that is wrong with the current judicial architecture of the American military justice system. I’ll note several aspects for discussion during this panel. In addition, let me mention two forthcoming law review articles that will touch on issues we will consider. The first, by Col. Jim Young and me, is called Military Justice and Modernity, which perhaps will be accepted by some deserving law review. The second, by me alone, The Case for Termination of the United States Court of Appeals for the Armed Forces, will appear this summer in the Journal of Appellate Practice and Process. If you are curious, these articles are available on SSRN.

Amnesty to Tunisia: stop trying civilian in military courts

Amnesty International has issued this statement concerning Tunisia:

End human rights backsliding in Tunisia

Tunisia’s post-revolution achievements are at risk. Since his power grab on 25 July 2021, President Kais Saied granted himself sweeping powers and has debilitated key institutions for human rights protection, threatening freedom of expression, association, fair trial, and other rights.

High-profile Tunisian journalists, parliamentarians, and other political figures, including critics and perceived opponents of the president have been targeted for opposing the president’s power grab. They have faced arbitrary travel bans, at times arrest or criminal investigations and prosecutions before the courts. The prosecution of civilians by military courts has dramatically increased with at least 12 civilians tried over the past year, including for peacefully exercising their right to freedom of expression. 

Over the past months, President Saied has repeatedly attacked the independence of the judiciary by dissolving the High Judicial Council, an institution set to shield the judiciary from interference by the executive branch. Saied also granted himself broad powers to intervene in the appointment and dismissal of judges and prosecutors, leading to the arbitrary dismissal of 57 judges.

Since the 2011 revolution, Tunisia has been a safe haven for civil society organizations because Decree-Law 2011-88 allowed civic space to blossom and thrive. However, in early 2022, a draft decree-law amending that law was leaked, containing provisions that would significantly restrict the work and funding of civil society organizations.

Act now and urge the Tunisian President to:

•        Stop the prosecution of civilians before military courts.

•        Reinstate the recently dissolved High Judicial Council and protect judges from dismissal by the President.

•        Refrain from adopting new legislation that would threaten freedom of association.

Vaccine mandate invalidated in Italy

In its Judgment No. 25 of February 20, 2023, the Constitutional Court of Italy has invalidated the vaccine mandate imposed on Italian military personnel. Partial Google translation:

In view of all that has been said up to now, paragraph 1 of the challenged provision establishes that military healthcare declares it essential for the soldier to submit to "specific" vaccination prophylaxis, to assign him to "particular and identified operational or service conditions", but it does not predetermine the vaccines that can be imposed on the military, i.e. the pathologies that it is intended to combat.

By doing so, the art. 206-bis, paragraph 1, of the Italian Civil Code military order does not fulfill the need for it to be "determined", as required by art. 32, second paragraph, of the Constitution, the health treatment to be imposed.

It is not lost on this Court that the legislator, exactly as the relative legal reserve prescribed by the constitutional provision in question allows, is allowed to modulate its regulatory intervention taking into account the existence of particular needs for flexibility connected to the specific context in which the vaccination obligation is introduced.

This aspect is particularly evident in the case of prophylaxis intended for military personnel. This personnel can in fact be employed in multiple operational scenarios, in Italy and abroad, therefore in destinations and contexts characterized, each, by its own, and moreover variable, epidemiological risk, to be evaluated also in the same way as the concrete methods of carrying out and duration of the mission, as well as the activities it requires.

In such a context, on the one hand, the constitutional requirement of "determination" of the treatment must be satisfied by the primary source, at least in the form of the list of vaccines to which the military can be compulsorily subjected, for the purposes indicated above.

Legal assistance to PLA personnel

Courtesy of China Military Online:

Recently, the Ministry of Justice and the Political and Legal Commission of the Central Military Commission of the People's Republic of China jointly issued the newly-revised measures for implementation of legal assistance to military personnel and their dependents (hereinafter referred to as the Measures).

The Measures aims to stimulate the sense of honor and strengthen the protection of military personnel’s rights and interests. It has refined the policies stipulated in laws and regulations concerning the general provisions on legal aid, the protection of status, rights and interests of military personnel, etc., in view of improving the standardization and institutional level of the legal assistance work for military personnel, and safeguarding their legitimate rights and interests.

The Measures is composed of 35 articles in five chapters, explicitly stipulating that the legal aid agencies should give priority to providing legal services such as free consultation and agency service according to law when military personnel and their dependents encounter difficulties in safeguarding legitimate rights and interests; and a legal aid green channel shall be set to accept legal aid applications submitted by military personnel and their dependents. Competent governments departments and military judicial and administrative departments are required to work in close cooperation in this area.

The new Measures will take effect on March 1, 2023.

A reporter in Honolulu writes about FOIA

Christine Jedra, of Honolulu Civil Beat, writes here about the frustrations of attempting to use the Freedom of Information Act to obtain information about military matters. Excerpt:

“Your request has been placed in our complex processing queue and is being worked based on the order in which the request was received,” a DOD official responded to my Freedom of Information Act request. “Our current administrative workload is approximately 3,594 open requests.”

And with that, another one of my public information requests fell into the military’s black hole.

Since I started reporting in Hawaii in 2019, I’ve filed numerous FOIA requests with the military, primarily the Navy. Time and again, I have filed one with the hopes of shining a light on an issue of public importance only to have it fizzle into nothingness. The Freedom of Information Act, which is supposed to provide the transparency needed for a healthy democracy, is too often a pathway to a dead end that leaves us in the dark on critical issues.

Mahalo.

"Truly independent"?

Holly Lake writes here on the Canadian Bar Association's National Magazine about the cases the Supreme Court of Canada will hear concerning judicial independence in the armed forces. Excerpt:

In his 2021 review of the National Defence Act, former Supreme Court Justice Morris Fish pointed to this sequence of events while raising concerns about the independence of military justices. While he didn't doubt their actual independence and impartiality, he felt "the appearance of justice is prejudiced by the fact that military judges remain members of the CAF while holding office." He added: "There are major concerns in this regard."

Among them? Many junior non-commissioned members he met during his review felt judges were more lenient when the accused is a higher-ranking officer and reluctant to see them as lacking in credibility. He also noted concerns among members that judges may be tempted to "tow the party line" in sensitive cases.

"The fact that military judges are subject to the CSD puts them in a position of subordination which is inconsistent with the exercise of judicial duties," Fish wrote in his report.

The first of his 107 recommendations was that military judges cease to be members of the Canadian Armed Forces when appointed and sit on the bench as civilians.

*. *. * 

As it stands, three of four court-martial judges have declared they lack independence, there is still no chief military judge in the Canadian Forces, and the JAG Rear-Admiral Geneviève Bernatchez is taking the federal government to court to keep an investigative report into her conduct from being published. The highest-ranking military lawyer in the country, she is currently on medical leave and her job has been posted.

Not military justice, but . . .

C.J. Chivers has a long piece titled Ian Fishback's American Nightmare in The New York Times Magazine. As this blog noted when Major Ian Fishback died in 2021, "A most tragic case -- and one that should be pondered." He had exposed the mistreatment of U.S. detainees in Iraq. Mr. Chivers describes Maj. Fishback as "a one-man brand -- a soldier-turned-public-intellectual willing to expose the dark underside of American power."

Transparency watch

Tim Cushing writes here about shortcomings in access to U.S. court-martial records. Excerpt:

Court transparency and equitable access to court documents are ongoing struggles. The federal court system’s malicious compliance with congressional directives has given us exorbitant fees and a clunky, counterintuitive platform for online access to court documents.

Part of the federal court system doesn’t even give us that much. Despite being subject to a 2016 law mandating access to military court documents, the US military’s court system has continued to do its own thing. For seven years, it pretty much completely ignored the law ordering it to perform “timely” releases of court documents “at all stages of the military justice system.”

This hasn’t happened. . . .

He concludes: "Unless Congress is willing to step in and force the Defense Department to issue new guidance that actually complies with the 2016 [legislation], the military will continue to play keep away from taxpayers."

No selective objection in Russia

A Russian military medical officer is facing trial for refusing orders to Ukraine. Details here from the Barents Observer. Lt. (Dr.) Denis Vasilev, who is assigned to the Northern Fleet, cites his personal convictions in refusing to serve in Ukraine.

Uganda update

The Legal and Parliamentary Affairs Committee has asked the Judiciary to make its final pronouncement on the trial of civilians in the Court-Martial, following different judgments made by both the Supreme and Constitutional courts over the same subject.

The call was made by West Budama North East MP Fox Odoi while interfacing with officials from the Judiciary, who had appeared to present their views on the Law Revision (Miscellaneous Amendments) Bill, 2022.

Villanova Law Review Symposium this Friday, Feb. 24

"Military Justice Reform: The Next 20 Years." Details here. 

Extra-territorial application of the Canadian Charter of Rights and Freedoms

On Friday, 17 February 2023, the Supreme Court of Canada (SCC) handed down its judgment in R v McGregor, 2023 SCC 4.  [That announcement was undoubtedly over-shadowed by the release of the Report of the Public Inquiry into the 2022 Public Order Emergency, by the Honourable Paul S. Rouleau.]  The judgment in McGregor focused on the extra-territorial application of the Canadian Charter of Rights and Freedoms (or, more accurately, the manner in which it does not apply to extra-territorial investigations).  While this is not expressly or uniquely a feature of Canada's military law, it arose within the context of Canada's military justice system.  And, from a practical perspective, this is an issue that will feature, from time to time, in Canada's military justice system.

The unanimous outcome (there were concurring judgments from Justice Rowe and from Justices Karakatsanis and Martin) was not surprising - for a few reasons.  First, it was an appeal (sought by leave to appeal, and not 'as of right', from a unanimous Court Martial Appeal Court of Canada (CMAC).  The CMAC judgment, R v McGregor, 2020 CMAC 8, handed down on the last day of 2020, was a well-articulated judgment.  During the hearing before the SCC, the bench gave a distinct impression that they were not swayed by the arguments of either the appellant or the intervener, the Canadian Civil Liberties Association.

What was marginally surprising was that Justice Brown - who was, arguably, the most aggressive in questioning counsel for the appellant - did not participate in the judgment.  An observer might reasonably have expected that he would author the judgment on behalf of the court or majority (or plurality).  Instead, the judgment for the majority was delivered by the current Court's "Great Dissenter", Justice Côté.  And, similarly interesting, Justice Rowe, who perhaps more frequently than any other justice of the SCC, concurs with Justice Côté when she dissents, offered a concurring judgment with a pointed warning to interveners.

Ultimately, the Court held that this was neither the case nor the circumstance to expand upon the lead case on extra-territorial application of the Charter, R v Hape, 2007 SCC 6.  Indeed, it is odd that the Court granted leave, only to conclude that "This is not the right case for any reconsideration of the Hape framework."  Then again, neither of the parties asked for reconsideration of that framework.  Instead, the appellant argued that, within the Hape framework, the Military Judge and CMAC erred.  In light of the reasoning offered by the CMAC, the outcome at the SCC was unsurprising.

AFT lacks jurisdiction over summary punishment of a severe reprimand

The principal bench of India's Armed Forces Tribunal has dismissed for lack of jurisdiction an Army officer's effort to overturn the severe reprimand he received in a summary trial. The case is Jha v. Union of India, OA No. 1127 of 2020. The dismissal is without prejudice, so the officer may presumably now seek review in the High Court. Query: why limit the AFT's jurisdiction this way?

Paradox indeed

In back-to-back judgments, two different panels of the Constitutional Court have come to a similar conclusion that trying civilians in military courts is unconstitutional, but over the years, this is an issue that has split the Judiciary, Derrick Kiyonga, writes.

Attorney General Kiryowa Kiwanuka has never been known for publicly admitting doubts over anything.. . . Yet recently, Mr Kiwanuka said he is confused as to what exactly to do with civilians being charged in military courts. With a number of Opposition supporters currently languishing in jail over charges that are before the General Court Martial (GCM), Mr Kiwanuka has come under pressure to implement the recent Constitutional Court judgment that essentially outlawed the practice. 

Special Report: The paradox of trying civilians in military court. The Monitor, 19 February 2023. 

Who should investigate and try Brazilian military personnel involved in the Jan. 8 rioting?

A familiar issue has arisen in Brazil: the armed forces want to deal with military personnel who were involved in the recent rioting in Brasília; civilian authorities have a different opinion, according to this article. Excerpt:

There has been mounting public pressure for anyone in Brazil's military accused of involvement in the riots to be tried in civil courts.

[President Luis Inácio] Lula [da Silva]'s leftist Workers Party wants them tried in civil courts, and the Federal Police have asked the Supreme Court for permission to investigate alleged military involvement in the riots.

However, Brazil's army brass are unhappy about efforts for military wrongdoing to be tried by the Supreme Court, and want to keep litigation in military courts, according to sources familiar with the matter.

Looking for a clerkship?

Judge M. Tia Johnson of the U.S. Court of Appeals for the Armed Forces is hiring. Here's the job announcement.

A court-martial at The Horse Guards (Rex v. Lieut.-Gen. James Murray, 1782-83; Sir Charles Gould, presiding)

Wikipedia Commons reports:

The court-martial on Lieut.-General James Murray (Nov.- Jan. 1782-3) on charges brought against him by his second-in-command, Lieut.-General Sir William Draper, for conduct in Minorca, before, during, and after the siege. A number of officers seated on both sides of a large table; at the head, and facing the spectators, is the Judge-Advocate-General who presided at the trial, Sir Charles Gould; above his head is drawn a pair of evenly balanced scales, inscribed "Sterling". He looks towards a witness (right) who is speaking. On the right behind a barrier and raised above the level of the Court are Murray, who clutches the barrier with an anxious expression, and two counsel (?), Draper and four witnesses or spectators; a partition divides Murray and his counsel from the others. Above Murray's head is inscribed "Matrimony". Draper wearing his ribbon and star (he was made K.B. in 1764) stands with both hands on the barrier with a composed expression. On his right is a lean and ugly man speaking and gesticulating. All the men seated at the table are in uniform except Gould. On Gould's right is an officer wearing a ribbon, evidently General Sir George Howard, K.B., the senior officer there. On Howard's right and on the left side of the table sit two officers looking at a map, one wearing glasses is inscribed "Yankee Doodle"; he is probably Lieut.-General Thomas Gage, ex-Governor of Massachusetts. The two officers on the left of the table lean against each other, asleep, and are inscribed "Capacity". Six officers on the right of the table are in attitudes varying from sound sleep, head and arms on table, to rapt attention. Over one sleeper is inscribed "Amen!!!", over another is a hand with a pointing finger and the word "Attention". On the left of the Court, behind a barrier, two men write at a raised desk, one perhaps Gurney, the famous shorthand writer who transcribed the proceedings. Papers, pens, and inkstands are scattered on the table. Beneath the title is engraved "Humbly dedicated to the Due de Crillon". 5 December 1782

A version in color may be found here.

Slow justice in Cameroon

Human Rights Watch has issued this statement on a high-profile-but-slow-as-molasses military trial in Cameroon. Excerpt:

The Ngarbuh trial opened on December 17, 2020, before a military court in Yaoundé, Cameroon’s capital. When the trial was announced, it was a welcome step and was seen as a test case that could break the perpetual cycles of impunity in Cameroon.

But since then, there has been little progress. The trial, meant to restart last November, is now slated to resume February 16, just two days after the 3rd anniversary of the massacre. The continued slow pace raises real concerns about whether the military justice system can deliver justice, and if so, when? Additionally, the location of the trial in Yaoundé, 450 kilometers from Ngarbuh, means there will be limited to no access and participation for victims’ families and potential witnesses.

Curtailing rights in Indiana

I'm a little late to developments out of Indiana. The state legislature is considering changes to the code for courts-martial of National Guardsmen. The changes will make it easier to convene general courts-martial, not requiring the governor to act as the convening authority. And the changes make it more difficult for individuals to demand a court-martial by right, if they disagree with taking non-judicial punishment under Article 15. 

That last revision is causing consternation for some. The author of that opinion piece draws an analogy to forced arbitration clauses, as guardsmen will lose their ability to challenge their command's lesser punishments in open court. It's always worrisome when an individual gives up a right they previously enjoyed. I could not find how the bill is progressing through the state legislature, but I echo the opinion writer in hoping that last change goes nowhere. 

You're out when we say you're out

Russian courts have denied an officer's request to be removed from the register and give up his rank. He disagrees with Russia's war on Ukraine. Details here, courtesy of Meduza. 

Few if any countries honor selective conscientious objection.

The struggle for human rights in Uganda

Derrick Kiyonga has written a powerful essay, Examining the Military's Place in Judicial Processes, for the Kampala Monitor. It's the first of a two-part series. 

While far from alone, Uganda remains perhaps the world's leading violator of the human rights norm that civilians should not be tried by military courts.

Supreme Court of Canada to review the independence of military judiciary

On 2 February 2023, the Supreme Court of Canada (SCC) handed down its decision on five Applications for Leave to Appeal judgments of the Court Martial Appeal Court of Canada (CMAC) relating to the independence of military judges.

The lead case was Leading Seaman Edwards, Captain Crépeau, Gunner Fontaine and Captain Iredale v R (Supreme Court of Canada Docket 39820); however, five separate Applications for Leave were brought on behalf of a total of nine members of the Canadian Forces (CF).

The lead judgment from the CMAC was R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2.

This is an important appear.  The SCC has examined facets of the Canadian military justice system in the past decade, including:

• R v Moriarity, 2015 SCC 55 - Whether the absence of a so-called 'military nexus' (or 'military connection') test contravened section 7 of the Canadian Charter of Rights and Freedoms (Charter);;
• R v Cawthorne, 2016 SCC 32 - Whether the discretion of the Minister of National Defence - who is not a prosecutor or a public law officer (even if the current Minister is a licenses lawyer) - to seek appeal 'as of right' contravenes sections 7 and 11(d) of the Charter; and
• R v Stillman, 2019 SCC 40 - Whether the absence of a 'jury' at court martial contravenes section 11(f) of the Charter, where a CF member is prosecuted for a Criminal Code offence under the Code of Service Discipline.

However, none of these matters dealt with the independence of military judges, a matter last examined by the SCC over 30 years ago in R v Généreux, [1992] 1 SCR 259, which pre-dated the significant reforms to the Code of Service Discipline, introduced by Bill C-25 in 1998 (most of the legislative reforms came into force 1 September 1999).

Similarly, some further legislative reforms arose in the wake of CMAC judgments in R v Trépanier, 2008 CMAC 3 (regarding the right of an accused - or lack thereof - to elect the type of court martial) and R v Leblanc, 2011 CMAC 2 (regarding the independence of military judges, who, at the time, were subject to reappointment every 5 years, at the Minister's discretion). 

The judgment in Trépanier was notable in that the CMAC denied the request by the Director of Military Prosecutions (DMP) to suspend the execution of the judgment and declaration of invalidity.  This precipitated a panicked response from the executive and Parliament to amend the National Defence Act, through Bill C-60, to permit an accused the right to elect the type of court martial.  Additionally, Bill C-60 eliminated Disciplinary Courts Martial and Special General Courts Martial.  The jurisdiction of Special General Courts Martial - which tried persons other than officers and non-commissioned member (i.e., civilians and other non-CF personnel who, under exceptional circumstances, would fall under the Code of Service Discipline). 

In Leblanc, the CMAC gave the Crown a six-month grace period to amend the Act, which resulted in Bill C-15, the so-called Strengthening Military Justice in the Defence of Canada Act, SC 2103, c 24.

Although judicial independence was reviewed in Leblanc, the appeals for which the SCC recently granted leave will mark the first time in three decades that Canada's apex court will examine the independence of military judges.

And they might not like what they see ... 

Book chapter of interest

Here is the abstract of Amoveatur ut promoveatur: The careers of military judges in Italy and the colonies, by Nicolò Da Lio, Giovanni Focardi and Adriano Mansi, a chapter in Reimagining Mobilities Across the Humanities (Routledge 2023):

This chapter focuses on the career trajectories of Italian military magistrates in the first half of the 20th century. Very little is known about this distinct group of high “civil” servants, their social origins, educational backgrounds and career patterns. Most of them served in the colonies and on the war frontlines; a few volunteered for the Spanish Civil War or worked in occupied territories such as Albania. After the Armistice was signed in September 1943, some were deported to Germany, while others joined the Italian Partisan Resistance. Using a wide range of mainly unpublished archival materials and a prosopographical database, the research offers insight into the different scenarios in which those magistrates performed their duties. We employ an interdisciplinary approach between history and geography, and blend the methods of political and social history with those of the history of military justice.

Not military justice, but . . .

Two officers in the Trinidad and Tobago Defence Force are pressing a claim in the High Court over the procedures used in connection with recent promotions. Details here. So far, they have secured a stay of promotions to the position of Vice Chief of the Defence Staff, as well as leave to file. Is it arbitrary to promote officers who are less senior?

Discipline in wartime

Politico's Veronika Melkozerova writes here about Ukraine's recent legislation to reduce desertion and indiscipline. Excerpt:

The law [which went into force last month] aims to standardize and toughen the repercussions for rule-breaking, improving discipline and the combat readiness of military units. Disobedience will be punishable by five to eight years in prison, rather than the previous two to seven; desertion or failure to appear for duty without a valid reason by up to 10 years. Threatening commanders, consuming alcohol, questioning orders and many other violations will also be dealt with more harshly, potentially with prison time; those who broke these rules in the past may have gotten away with a probation period or the docking of their combat pay.

Those who lobbied in favor of the new law, such as the Ukrainian Army General Staff, argue it will make discipline fairer: Previously, because courts adjudicated infractions on a case-by-case basis, some perpetrators were able to escape punishment for serious rule-breaking entirely, while others received harsher sentences for less significant violations, according to an explanatory note that accompanied the new law.

But soldiers, lawyers and human rights watchdogs have slammed the measures as an inappropriate and blunt instrument that won’t deal with the root causes of military indiscipline — and over 25,000 Ukrainians called on the president to veto the law altogether in a petition submitted to the president late last year.

President Volodymyr Zelensky signed the new law despite the petition.

Uganda AG "confused"

The Attorney General of Uganda says he's confused by the divergent rulings on whether the country's military courts may trial civilians. This report quotes longtime Global Military Justice Reform contributor Ronald Naluwairo:

Makerere University Law don Dr. Ronald Naluwayiro, who is also an expert on military justice and human rights was seemingly not convinced by the argument raised by the Attorney General. “But he is the Attorney General and he knows the hierarchy of courts. The Supreme Court decision takes precedent. The two decisions by courts have to be seen in light of Uganda’s international obligations. I draw your attention on the reports of the African Commission of Human and People’s Rights” said Dr. Naluwayiro, who has published several articles about military courts and human rights.

U.S. armed forces caseload data, CY22

Since U.S. military judges (all of whom go through training at The Judge Advocate General's School and Legal Center at Charlottesville, Virginia) may try cases in any service, see R.C.M. 201(e)(4), and since the trial judiciaries could coordinate cross-service assignments if they wished, it is worth looking at all-service caseload numbers for general and special court-martial trials. The data below are drawn from the 2022 Art. 140a, UCMJ, TJAG reports. Reserve judges are counted as 1/12 of an active duty judge on the premise that they perform a month's duty per year.

                  Trials                  Judges

Army              615                    25.8

Air Force            314                     18.25

Navy & Marines     387                     28.1

Coast Guard         14                      10.0  

Total             1330                      82.15 

Purple caseload/judge/year                      16.19 

Purple caseload/judge/month                     1.35                 

Comments welcome, as always. Real names only, please.

Not even close

Myanmar's military government has imposed new rules on 37 townships. Treason and spreading false information will be tried by military courts, with no appellate review by a court -- death penalties will be reviewed by the junta chief. Details here.

Among the countries that regularly try civilians in military courts: Uganda, Lebanon, Tunisia, Egypt.

Appellate review of military trials is called for by Principle No. 15 of the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals: "Everyone convicted of a crime shall have the right to have his or her conviction and sentence reviewed by a higher tribunal according to law."

Duma bill would let commanders jail Russian personnel for up to 10 days

A bill has been introduced in the Russian State Duma that would authorize commanders to jail offenders for up to 10 days without a court trial, according to this Meduza report.

Amnesty to Tunisia: get with it

Amnesty International has issued this strong statement condemning Tunisia's improper use of military courts to try civilians. Excerpt:

Amnesty International considers that the jurisdiction of military courts over criminal cases should be limited to trials of military personnel for breaches of military discipline.

Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Tunisia has ratified, guarantees the right to a trial before a “competent, independent, and impartial tribunal established by law.”

President [Kais] Saied is commander-in-chief of the Armed Forces and has the final word on the appointment of judges and prosecutors to military courts. Military prosecutors are also serving members of the military, and are therefore subject to disciplinary procedures. Consequently, Tunisia’s military courts are not independent as defined by international law.

Article 14 of the ICCPR also prohibits courts from prosecuting people for offenses for which they have already been tried and either convicted or acquitted, except in extraordinary circumstances.

Disorder in the court

The Uganda Human Rights Commission, a governmental body created by the country's constitution, has objected to the Army's failure to comply with the decision of the Constitutional Court barring the trial of civilians by court-martial. A YouTube video of an interview with the chair of the commission -- and showing what happened when one of those accused protested in the military courtroom -- can be found here. The commission chair suggests that undue force was used, and the interviewer points out that until such time as the Constitutional Court's decision is overturned, it must be complied with.

Annual reports available

The armed forces' annual military justice reports for FY2022 are now available here, on the website of the Joint Service Committee on Military Justice.

Transparency and courts-martial: still a failing grade

ProPublica is doing great work on the indefensible shortfall in court-martial transparency. Here is their latest reporting. DoD has to change its mindset about transparency if it is going to foster public confidence in the administration of justice. Excerpt:

The new Pentagon guidance also allows the military to permanently seal the trial record if the defendant is found not guilty. This could also prevent an assessment of fairness. For example, if a general is accused of sexual assault and found not guilty, the military doesn’t have to release any court records about the case, and the public would not be able to scrutinize how the case of a high-ranking officer was handled.

If a service-member is acquitted following a public trial, why should the record of that proceeding not be available to the public thereafter?

Judicial independence and Indonesian military justice

Irwan Sanjaya Putra and Niken Wahyuning Retno Mumpuni have written Analysis of the Institutional Position of Military Judges Against the Independence of the Indonesian Military Courts, 5 Jurnal Nurani Hukum: Jurnal Ilmu Hukum 190 (Dec. 2022). Excerpt from the abstract:

Military judges indirectly stand on two legs institutionally, because both the Supreme Court and the TNI have the same role in determining the career path of military judges. In that case, military judges still have great potential for intervention. Several factors affect the independence of military judges in carrying out their duties within the scope of military justice. Military judges indirectly stand on two legs institutionally, because both the Supreme Court and the TNI have the same role in determining the career path of military judges. In this regard, the military courts in Indonesia are not yet fully considered an independent judiciary. This is because several factors that have great potential in determining a judge can be intervened by another party (executive).

The authors conclude:

The power factor that currently exists is the dominance of the TNI over the career path of military judges in terms of promotion, position and some of its financial elements put pressure on the judge so that the legal decisions made are not following the judge's conscience. In addition, the dominance of the TNI in terms of the military justice system, which oversees the body that has the authority from investigation to correctional terms, makes the role of military judges in giving legal considerations very important.

If judges in carrying out their duties have the potential to intervene, the independence of the military court will not be created. makes the role of military judges in giving legal considerations very important. If judges in carrying out their duties have the potential to intervene, the independence of the military court will not be created. makes the role of military judges in giving legal considerations very important. If judges in carrying out their duties have the potential to intervene, the independence of the military court will not be created.

Uganda's unpersuasive defense

Uganda has defended its use of military courts to try civilians. According to this account of the country's latest report to the UN Human Rights Committee, civilians. may be tried by military courts because the military has a monopoly on weapons and ammunition. But does that follow? Why couldn't weapons charges be tried in the country's civilian courts?