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."