Among those interviewed: NIMJ president Professor Rachel E. VanLandingham.
Wednesday, May 31, 2023
From this Human Rights Watch news release
Tuesday, May 30, 2023
Last week, the Chairperson of Canada's Military Police Complaints Commission (MPCC) announced that there would be a Public Interest Investigation (PII) to examine the Military Police investigation of sexual assault allegations against Major-General (MGen) Dany Fortin.
While that is a useful step in examining the manner in which the Canadian Forces (CF) have handled allegations of sexual misconduct in an increasingly politicized environment, there are many relevant issues and pertinent questions that will not be examined or answered by such a PII. More must be done.
Here is a reflection on some of the broader issues and questions arising in relation to this announcement:
MGen Dany Fortin & the MPCC
Friday, May 26, 2023
Wednesday, May 24, 2023
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.
Tuesday, May 23, 2023
Captain Barry was a founder of NIMJ. He served as a trial and appellate judge in the U.S. Coast Guard.
Monday, May 22, 2023
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.
"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 . . .
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.
Sunday, May 21, 2023
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.
Saturday, May 20, 2023
Friday, May 19, 2023
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.
“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.
Abid S. Zubairi
“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.]
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.
Thursday, May 18, 2023
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?
Wednesday, May 17, 2023
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.
Tuesday, May 16, 2023
Sunday, May 14, 2023
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.
Saturday, May 13, 2023
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.
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.
Thursday, May 11, 2023
Canada: Election for court martial -- the process may now be moot, but underlying issues remain pertinent
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
Wednesday, May 10, 2023
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.
Tuesday, May 9, 2023
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.
Saturday, May 6, 2023
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.