Independence Day 2023

Panel unanimity decision

Hon. Liam P. Hardy

Yesterday, in its 17th decision of the October 2022 Term, the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Liam P. Hardy, unanimously ruled in United States v. Anderson, No. 22-0193, that the Constitution's requirement that juries be unanimous does not apply to courts-martial. The decision, which addresses an issue that has been raised in numerous cases, is now subject to discretionary review by the Supreme Court.

Vagueness case in Barbados

Section 75 of the Barbados Defence Act provides:

Conduct to prejudice of military discipline

75.

Any person who, being subject to military law under this Act, does, or omits to do, any act or thing that is prejudicial to good order and military discipline is guilty of an offence and liable on conviction by court-martial to 2 years imprisonment or any less punishment provided by this Act.

In the first appeal of a court-martial, the Barbados Court of Appeal this week overturned the conviction of an officer of the island country's Coast Guard. According to this Barbados Today report by Fernelia Wedderburn:

In 2019, [David Anthony] Harewood, an 18-year military veteran, was court-martialed and convicted of charges that on an unknown date in January 2018, being a commissioned officer of the BDF, and having knowledge of a threat to the life of Ordinary Seaman Marlon Scott, he neglected to inform his superiors of the threat; and that he conducted unauthorised information-gathering operations, conduct unbecoming of a commissioned officer of the BDF, between January 1, 2014, and September 30, 2018. . . .

“While we can generally and objectively agree that it is probably contrary to the maintenance of good order and discipline among members of the army to have persons conducting unauthorised information-gathering operations, there must be some framework, formal or informal or military or Barbados Defence Force policy or regulation, known to officers and other ranks alike, establishing or defining what constitutes unauthorised information-gathering operations.

“There must be some legal certainty that informs a citizen or, in this case, a soldier what is prohibited so that he or she can regulate his or her conduct,” said Justice [Margaret] Reifer.

The Court of Appeal judge added that clear reporting guidelines were also necessary.

“The prosecution has failed to show, unequivocally, from whom the applicant as an officer in the Barbados Coast Guard should have sought authorisation and to whom he should have reported results of his alleged information-gathering operations if it was established that this was, in effect, the conduct that he was engaged in . . . . There was no uncontroverted evidence of a formal or informal standard operating procedure in this regard,” she said.

“While accepting the inherent jurisdiction of the Barbados Defence Force to exercise disciplinary control over its members, this does not automatically translate to infusing a limitless scope to Section 75 [of the Defence Act] for the creation of criminal offences without due process. Stated differently, the prosecution has failed to discharge the burden of proof that the offences charged exist expressly and or impliedly.”

Under § 8 of the Barbados Caribbean Court of Justice Act, the decision may seemingly be appealed to the Caribbean Court of Justice if that court grants special leave. The Court of Appeal's decision in Harewood v. Barbados Defence Force can be found here.

Judicial independence issue in Canada

Held, by the Court Martial Appeal Court of Canada in Cookson v. H.M. The King, 2023 CMAC 8 (per curiam), "[t]he fact military judges are also officers in the Canadian Armed Forces does not render them partial and lacking independence."

House Armed Services Committee v. Military Religious Freedom Foundation

Is this constitutional? Daily Kos comments on Rep. Mike Turner's jaw-dropping National Defense Authorization Act amendment here. It's hard to imagine this provision will survive in conference. That it has made it into the full committee bill is shocking.

A chaotic hearing in Pakistan's Supreme Court

The News International has this account of today's lively proceedings in the case challenging the trial of May 9 civilian protesters in Pakistan's military courts. Among other things, the bench was reduced from seven judges to six after the government's counsel, who had previously expressed no objection to the participation of one of the original judges, changed his position. The remaining judges were not pleased. The hearing resumes on Tuesday.

A further report, with a link to the court's order regarding the recusal of a justice and the latest reconstitution of the bench, can be found here.

Jurisdiction of military courts at issue in Brazil

Sebastian Abad Jara and Daniel Pereira Campos have written this informative and timely post for EJIL: Talk!, the blog of the European Journal of International Law. In Military Courts and Human Rights Violations in Brazil from the Perspective of the Inter-American Human Rights System, the authors summarize the pertinent decisions of the Inter-American Court of Human Rights. Excerpt:

The Supreme Federal Court of Brazil will soon rule (under a constitutional review case called Ação Direta de Inconstitucionalidade no. 5032, commonly referred to as ADI 5032) whether members of the armed forces that commit crimes against civilians during peacetime should be tried before civilian or military courts. This judgment is critical for Brazil, a country with a long (and recent) period of authoritarian military rule (1964-1985) but without comprehensive transitional justice mechanisms and State accountability for human rights violations.

Constitutional petitions in Pakistan

Several constitutional petitions challenging the resumption of military trials of civilians have been filed with the Supreme Court of Pakistan. The petitions (one of which was, controversially, filed by a former Chief Justice of Pakistan) leave no doubt that, unless the Constitution is amended (as was done several years ago for this purpose for a limited period), civilians are not subject to trial by courts-martial.

Among the many issues:

• Under what circumstances does the Pakistan Army Act 1952 authorize the court-martial of civilians?
• If the Army Act does authorize the court-martial of civilians, is it constitutional?
• What is the relevance of the Official Secrets Act?
• If there is concurrent civilian and military jurisdiction, what standards govern which court system will exercise jurisdiction?
• What is the impact of the International Covenant on Civil and Political Rights?
• Are secret trials permissible?
• Are military courts independent?
• Is it fatal that there is no appellate review by an independent court within the military justice system and no provision for direct appellate review by the Supreme Court?

A detailed account of the latest, lively, proceedings in the Supreme Court can be found here.

“A Great Injustice:” a Halifax Chronicle Herald series about Canadian Military Justice (by Paul Schneidereit)

From 2 to 7 May 2022, the Halifax Chronicle Herald published a series about how the Canadian Military Police and Judge Advocate General branches abused their authority and ignored their professional ethics to conduct and process a flawed investigation. They based their enquiry on spurious allegations, flawed information, incorrect conclusions, an unpardonable disregard for professional standards and an unforgivable neglect for the rights of the accused.

A ‘great injustice’ (pt 1): How Canada’s military ruined an officer’s life and career

https://www.saltwire.com/halifax/news/a-great-injustice-pt-1-how-canadas-military-ruined-an-officers-life-and-career-100721137/

 A ‘great injustice’ (pt 2): The Russian defection that sparked events that shattered military man’s career

https://www.saltwire.com/halifax/news/a-great-injustice-pt-2-the-russian-defection-that-sparked-events-that-shattered-military-mans-career-100721142/

 A ‘great injustice’ (pt 3): Military police build case against an innocent man

https://www.saltwire.com/halifax/news/a-great-injustice-pt-3-military-police-build-case-against-an-innocent-man-100721145/

A ‘great injustice’ (pt 4): Military officer fights back after second investigation, mental breakdown

https://www.saltwire.com/halifax/news/a-great-injustice-pt-4-second-investigation-mental-breakdown-but-military-officer-fights-back-100722804/

 A ‘great injustice’ (pt 5): Damning secret memo tainted exemplary military career

https://www.saltwire.com/halifax/news/a-great-injustice-pt-5-damning-secret-memo-tainted-exemplary-military-career-100722875/

 

A ‘great injustice’ (pt 6): Military needs to apologize, learn from Dunne case, legal expert says

https://www.saltwire.com/halifax/news/a-great-injustice-pt-6-military-needs-to-apologize-learn-from-dunne-case-legal-expert-says-100723003/

 My private war to make military accountable for its investigative abuses

https://www.saltwire.com/halifax/opinion/tim-dunne-my-private-war-to-make-military-accountable-for-its-investigative-abuses-100760775/

Starfleet military justice

Exam question: who on Star Trek was tried by court-martial, for what offense(s)? Click here for the answers (no peeking).

Pakistan's military courts

Karachi attorney Arsalan Raja writes here in the Pakistan Observer that civilians cannot be tried by court-martial. Excerpt:

Section 24-A of General Clauses Act, 1897, casts an affirmative duty upon “authorities” to pass an order or judgment with reason by giving all parties a transparent opportunity to present their submission in “accessible Courts”. It is an undeniable fact that military Courts located in cantonment areas does not have easy access to public or media, which itself is a breach of Article 19-A (right to information) and 10-A (right to fair trial) of the Constitution. It is worth mentioning that the High Courts have issued verdicts, with strong observations over the manner in which the Military Courts conducted the trials. It is a matter of record that High Courts have set aside more than 200 convictions in the past, which were awarded by the Military Courts. Trial under army act are required to be public in terms of Article 19-A (right to information) and 10-A (right to fair trial) of the Constitution.

June 19, 1865, The Emancipation Proclamation comes to Galveston

From today's edition of the excellent Letters from an American series by Professor Heather Cox Richardson:

Seventeen days [after the last major Confederate Army surrender, in Galveston, Texas], Major General Gordon Granger of the U.S. Army arrived to take charge of the soldiers stationed there. On June 19, he issued General Order Number 3. It read:  

“The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.” 

The order went on: “The freedmen are advised to remain quietly at their present homes and work for wages. They are informed that they will not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere.”

The case against Pakistan's renewed misuse of military courts

The Supreme Court of Pakistan has been asked to invalidate the planned trial of the "May 9" civilian protesters in courts-martial. This article in Dawn quotes at length from the broad-ranging constitutional petition that was filed yesterday.

Irish Defence Force complaints

According to this report from the Irish Examiner, here is the breakdown of complaints investigated last year by the Irish Defence Forces Ombudsman:

On the nature of the cases, 13 related to ‘maladministration’, which covers a variety of issues, including complaints in respect of performance appraisal and discharge.

Eight of the cases were categorised as ‘interpersonal issues’, which includes personality conflict and/or allegations of inappropriate behaviour or bullying.

Seven complaints related to either non-selection for promotion or non-selection for a career course.

Corps of Royal Marines

Here is the abstract for this recent University of Plymouth dissertation, When Reputation is at Stake: Honour, Masculinity and Militarism in the Courts Martial Records of the Marine Corps, 1755–1779, by Lee-Jane Giles:

This dissertation examines how the Marine Corps, as a newly formed permanent force, understood and embodied key social ideals such as honour and trustworthiness, respect and deference alongside martial behaviours. It uncovers and analyses the self-sanctioning nature of the marines’ officer corps to impose conforming behaviours during this key period in the Marine Corps’ development. However, this dissertation is equally interested in the non-commissioned and enlisted ranks, and their responses to the imposed conformity to these values. These early cases, linked to ideal behaviour, show a form of self-fashioning as the men of the Corps sought to form their identity and situate themselves as a corporate and military body; caught as the Marine Corps was between the Royal Navy and the Army. By using court martial records, official letters, and contemporary literature, this thesis examines officers’ and other ranks’ concepts of honour, duty, brotherhood, and masculinity in the British Marine Corps in the mid-eighteenth century. Sociability, camaraderie, public affirmation, and honourable reputation overlapped and informed one another in the Marines Corps. By analysing how these aspects converged, this study reveals a picture of how individuals across all ranks negotiated socio-cultural stereotypes, positioned themselves against hegemonic and dominant group and institutional ideologies, and accepted or pushed against normative expectations during the mid-eighteenth century. This thesis also examined how responses to reputation, desertion and criminality helped fashion the Marine Corps into a reputable and professional body, which highlights how these men accepted and defined themselves and each other in relation to the environment and social situations they lived in during that period. By investigating these aspects of social and cultural military life, this study contributes to the historiography of honour and masculinity in a hitherto neglected branch of the British armed forces in the eighteenth century.

Pardon bill introduced in the State Duma

Russia submitted a bill to parliament pardoning all small and medium crimes of participants of the so-called "SMO" [special military operation].

Both professionals and mobiks will be exempted from criminal prosecution even if the crimes were committed before the law came into force. Those who receive state awards or retired from service will also be exempt.

From this tweet by Dmitri (@wartranslated)

Robin Holman appointed Judge Advocate General of the Canadian Forces

Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, under section 9 of the National Defence Act, appoints Robin Holman of Ottawa, Ontario, to be Judge Advocate General of the Canadian Forces, to hold office during pleasure for a term of four years, effective June 28, 2023.

Order in Council 2023-0543

Perhaps the least surprising announcement of 2023 regarding the Canadian Forces.

GI access to the Supreme Court

The full House Armed Services Committee will take up the FY24 defense authorization bill on June 21, 2023. Of interest, section 541 of the chairman's mark removes the current indefensible limitation on access to the Supreme Court for the many cases in which the U.S. Court of Appeals for the Armed Forces denies discretionary review. 

After nearly 40 years, it's high time the unfair bar on certiorari in such cases was lifted.

Pakistan's return to military trials

Both houses of Pakistan's Parliament have passed resolutions in support of military trials of civilian protesters, according to this article. The last time the country turned to such trials, the Constitution was amended. This time that seems not to be in the cards.

The Vaccine Mutiny

Quaere: was the Defense Department within its rights to threaten court-martial for members of the unfederalized National Guard who refused COVID-19 vaccination? A panel of the U.S. Court of Appeals for the Fifth Circuit thinks not. See Abbott v. Biden, No. 22-40399 (5th Cir. June 12, 2023).

"Everything on the pitch needs to be looked at"

Women of Honour, an Irish NGO, is urging the creation of a full tribunal of inquiry to look into sexual assault and a range of abuses in the Irish Defence Forces. Details here. Excerpt:

“In simple terms, the terms of reference need to look at all the football pitch,” the Women of Honour group said in a statement issued on Sunday in advance of their meeting with Mr [Leo] Varadkar and Mr [Micheál] Martin on Monday. “If, as proposed by the Government, in any match we only look at what happens inside the centre circle, it would be a pointless exercise. Everything on the pitch needs to be looked at.”

Pushback in Pakistan

Pakistan's Express Tribune has this detailed report on the issues raised in constitutional litigation over the country's referral of civilian protesters to military courts. A major issue before the Supreme Court -- one among many -- is the absence of proper direct appellate review in the civilian courts, as opposed to more limited collateral review.

Jurisdiction over retirees

Prof Robert Leider
Antonin Scalia Law School

Prof. Robert Leider of George Mason University's Antonin Scalia Law School has filed this amicus curiae brief in support of the petitioner in Larrabee v. Del Toro (U.S. No. 22-1082). The government has until July 7 in which to respond to the petition.

(Full disclosure: the Editor is one of the attorneys for the petitioner.)

Racial disparities

Yesterday Deputy Secretary of Defense Kathleen H. Hicks issued this memorandum setting out steps to be evaluated with a view to reducing racial disparities in the investigative and military justice systems. The 17 recommendations are based on the work of a DoD Internal Review Team, and will now be reviewed by cognizant offices within the department. The IRT's report can be found here. 

Of interest among the recommendations sent out for review:

• Right to counsel for those members facing non-judicial punishment
• Update the vessel exception to the right to reject non-judicial punishment, and restrict it to situations of operational necessity
• Legal representation at summary courts-martial
• Bar any commanding officer in the accused's chain of command from serving as a summary court-martial officer
• Added due process for personnel facing administrative separation but not entitled to an ADSEP board
• Improved compliance with Article 137, UCMJ, which requires periodic instruction on the punitive articles of the Code
• Improved and standardized military justice data collection
• Improved protections with regard to titling, indexing and expungement of investigative records

Secretary Hicks's memorandum notes that additional research remains to be done. 

A consolidated assessment on the 17 recommendations is due in 120 days.

Members of the military have human rights

The Spanish Supreme Court overturned a corporal's expulsion from the military for publishing on a web page an article about corruption in the Spanish military.  The Spanish  Supreme Court annulled his expulsion from the military and held that he was protected by the right to freedom of expression.  The Spanish Supreme Court held that the case was governed by the European Court of Human Rights' 1997 decision in Grigoriades v. Greece, which held that the insults launched by a Greek member of the military had an insignificant impact on military discipline and therefore were protected by the right to freedom of expression.

Members of the military are protected by the right to freedom of expression under the European Convention on Human Rights provided that their opinions and public declarations do not constitute a real threat to military discipline and the cohesion of the Armed Forces.

Speaking of trying civilians in military courts

Let's not forget Cuba, which just tried a number of civilian protesters following a trial by a military court in Cienfuegos. Details here.

The current list of countries that regularly violate the human rights norm that strongly disfavors such trials includes, among others, Uganda, Cameroon, Lebanon, Tunisia, Egypt, Pakistan and Cuba.

Now we'll hear from the other side

Pakistan Observer has published this op-ed by attorney Ayesha Liaqat Butt, attempting to justify the country's return to military trials of civilians. She concludes:

The prevailing misinterpretation of the Army Act and its Military justice system has led to considerable discontent amongst the masses. The fear of infringement of the basic Human rights and degradation of democracy has further exasperated the situation. However, with the basic conceptual understanding of the Army Act and its Military Justice system it would be easier to receive the rumours spread indiscriminately over the social media with a more logical standpoint.

One point calls out for specific comment. The author cites Jadhav (India v. Pakistan), a 2019 decision of the International Court of Justice in a case involving an Indian national tried by a Pakistani military court, and argues that it is telling that the ICJ found no fault in Pakistan's court-martial of a civilian. In fact, the only question before the ICJ was whether Pakistan had denied the defendant his right to consular access as guaranteed by the Geneva Convention on Consular Relations.

Jumping the fence

In military law, we more often see cases arise from those who leave a military post than those who enter it. In this recent decision, the Conflicts of Jurisdiction Chamber of the Spanish Supreme Court, distinguishing earlier cases, ruled that there was no military court jurisdiction over two civilians who, while drunk, jumped over the fence surrounding a military compound and did minor damage to a private vehicle and a doorknob there. Details here.

It would seem from the court's decision that if the civilian intruders had sought to steal military equipment, for example, court-martial jurisdiction would have been upheld.

Conscientious objectors in Ukraine

Felix Corley, of Oslo-based Forum 18, has this detailed report on the legal problems encountered by conscientious objectors in Ukraine. Excerpt:

Ukraine's Supreme Court overturned the conviction of Christian conscientious objector Vitaly Alekseenko – the first jailed conscientious objector since Russia's renewed invasion - and ordered his release from prison. However, the Supreme Court ordered a retrial in the original court, and his requests to perform an alternative civilian service have been ignored. A Supreme Court case lodged by Christian conscientious objector Andrii Vyshnevetsky – still forcibly held in the army – continues. He argues that failure to determine a procedure for dismissal from military service on the basis of conscientious objection is illegal.

Condonation

Did the Trinidad & Tobago Coast Guard condone hazarding a vessel by demanding and obtaining the commanding officer's resignation? A civilian court will decide the question, according to this account.

Brace yourself

With the verdict in the high-profile Ben Roberts-Smith defamation case, watch for possible efforts to institute war crimes proceedings against former members of the Australian Defence Force. Details here. Excerpt:

The civil trial was the first time a court has assessed accusations of war crimes by Australian forces.

A judge said four of the six murder allegations - all denied by the soldier - were substantially true.

These included:

A handcuffed farmer the soldier had kicked off a cliff - a fall which knocked out the man's teeth, before he was subsequently shot dead

A captured Taliban fighter who was shot at least 10 times in the back, before his prosthetic leg was taken as a trophy and later used by troops as a drinking vessel

Two murders which were ordered by Mr Roberts-Smith to initiate or "blood" rookie soldiers.

Changes afoot in Wisconsin's Code of Military Justice

Wisconsin Public Radio reports here on proposed changes to the state's Code of Military Justice. Excerpt:

The bills would amend the Wisconsin Code of Military Justice to bring it into alignment with the federal Uniform Code of Military Justice, establish a case management system for misconduct cases within the Department of Military Affairs and require the Guard's top leader to report annually on the topic to the governor and state Legislature.

The changes to state military code would include redefining what constitutes sexual assault to include sexual acts committed through threat or intimidation. It would also clarify which types of offenses are grounds for court-martialing, create a specific process for sexual harassment and remove certain gender-specific language from the code.

It would also add an affirmative right for survivors "to be treated with dignity, respect, courtesy, sensitivity, and fairness."