France, mère des arts, des armes et des lois (with apologies to Joachim du Bellay)

Want to liven up the dinner conversation at the O Club? Drop in a reference to Mercy at War: Military Violence and the Politics of Royal Pardon in Fifteenth-Century France, by Dr. Quentin Verreycken. From the website:

This article examines the construction of military criminality and the granting of pardons to soldiers in late medieval France. By the beginning of the fifteenth century, the offences perpetrated by men of war were a recurrent problem of public order for royal government. Criminal records as well as narrative sources used a rich terminology to qualify the military abuses suffered by the population, which distinguished criminal soldiers from ordinary offenders. Although these abuses were repeatedly denounced by political literature and were supposed to be severely punished according to legislation, the king of France frequently granted pardon letters to soldiers, allowing them to escape criminal prosecution in exchange for the continuation of their services. Far from being simply the result of a lax attitude of the king, these pardons reflected the fragile balance of royal power in the fifteenth century, which required the king to conciliate the exercise of justice and the conduct of warfare. Exploring the politics of royal pardon towards criminal soldiers and the reactions they provoked, the article demonstrates how the French Crown dealt with military offenders at the end of the Hundred Years’ War and during its aftermath.

Pertinent to some of former Presidrnt Donald J. Trump's court-martial pardons?

Military Legal Power, Unchecked

Professors Brett J. Kyle and Andrew G. Reiter have written an important new article: Military Legal Power, Unchecked. It appears in the Winter 2023 issue of the NACLA Report on the Americas. From the website summary: "Across Latin America, the militarization of public security and judicial systems threatens to deepen repression and impunity. Can civilian courts rein in military justice once and for all?" In summary, there are steps forward -- and backward. Sadly, the full text of the paper is not freely available; you'll either have to pay for it or have access to an institutional account with the publisher.

Pakistani praise for U.S. military commissions (can you guess why?)

"In the aftermath of the 9/11 attacks, the United States established military commissions to prosecute individuals involved in acts of terrorism against the country. Operating under the Military Commissions Act, these commissions aimed to provide a legal framework for trying individuals associated with al-Qaeda and other terrorist organizations. Despite facing legal and procedural challenges, the military commissions have successfully rendered justice in numerous high-profile cases, emphasizing the US commitment to holding terrorists accountable under a specialized legal framework." [Emphasis added.]

From this Pakistan Today op-ed

Caveat lector

Readers concerned about the Pakistani litigation on the threatened use of military courts to try civilians will recall this recent post reproducing excerpts from two articles by an Islamabad-based writer and the Editor's email to him in response. In the interest of completeness, the full correspondence follows so that readers may draw their own conclusions (read from the bottom up):

Dear Mr. Eugene:

I acknowledge receiving your message. I have raised questions regarding certain 'facts,' which, unfortunately, you have chosen to overlook.

Farrukh

____

Dear Dr. Saleem,

In answer to your questions:

1. The United States Supreme Court has found it unconstitutional to prosecute civilians by court-martial. See, e.g., United States ex rel. Toth v. Quarles, https://supreme.justia.com/cases/federal/us/350/11/; Reid v. Covert, https://supreme.justia.com/cases/federal/us/354/1/.

The Court has not yet ruled on the constitutionality of the rarely-employed provision of the Uniform Code of Military Justice that permits the court-martial of civilians who are serving with or accompanying an armed force in the field in time of a declared war o[r] contingency operation. To be sure, civilians may be subject to military trial by occupation courts, but that is irrelevant to the issue currently before the Supreme Court of Pakistan.

2. I find no reference to military courts in the Indian statute you cite. If I missed it, please point me to the pertinent section(s).

3. Yes, and it is totally improper. Egypt is a party to the African Charter, which is interpreted to forbid such trials.

4. No, but you should review ¶¶ 34-38 (Principle No. 6) of the 2018 "Yale Draft," https://www.court-martial-ucmj.com/files/2018/06/The-Yale-Draft.pdf.

I'm not sure I follow your point about being "practical" rather than delving into "theoretical or academic aspects." We are, after all, dealing with the Rule of Law, and I remain curious about the sources on which you relied when listing countries in your recent columns.

Sincerely,

Gene Fidell

_____

Dear Mr. Fidell,

I trust this email finds you in good health. I appreciate your email, which I have read not once but a few times over. 

Rather than delving into the theoretical or academic aspects, please allow me to approach the subject from a practical standpoint. I have a few questions that I believe will help clarify the context:

1. Has the US ever conducted trials of civilians in military tribunals?

2. Were civilians accused in the 1993 Bombay Bombings tried under TADA in India?

3. In Egypt, have civilians been subjected to trials under the 'Law on the Protection of the Armed Forces'?

4. Is there a specific prohibition on civilian trials in military courts under the International Covenant on Civil and Political Rights?

Your insights have significantly increased my understanding of the matter, and I am grateful for the knowledge you have shared.

Thank you once again for your time and expertise.

Best regards,

Farrukh

_____

Dear Dr Saleem,

I teach Military Justice at Yale Law School and edit the Global Military Justice Reform blog. In that connection, I read with interest two recent articles in which you list a number of countries, including the US, as trying civilians in military courts. I believe that list is misleading in several respects and gives a mistaken impression of the state of human rights law and practice. As I am sure you will agree, for example, a number of the States whose practice you cite -- e.g., Myanmar -- cannot by any stretch of the imagination be called democratic or governed by the Rule of Law.

You wrote that US "summary courts" can try civilians for rioting, and cite the federal riot statute. But that statute does not refer to summary courts or military courts. As for our military commissions, these can try only enemy combatants, and our Supreme Court held in Ex parte Milligan in 1866 that civilians could not be tried by military commission if the civilian courts are open. Our courts-martial can try civilians only in time of a declared war or a "contingency operation" if the accused serves with or accompanies an armed force in the field. The US Supreme Court has not ruled on whether even that highly restricted provision is constitutional.

In Martin v. United Kingdom, the European Court of Human Rights materially limited the circumstances in which a State can try a civilian in a military court under the European Convention.

Turkey used to try civilians by military courts, but that was disapproved by the European Court in Ocalan v. Turkey. I have read the 2016 Decree-Law to which you have referred; I did not find in it any provision for the military criminal trial of civilians, and no such provision is mentioned in the Venice Commission's report on it, which can be found at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-ad(2016)037-e. A 2008 article indicates that Turkish military courts no longer have jurisdiction over civilians. https://dergipark.org.tr/tr/download/article-file/627016. You refer to further legislation after the 2016 Decree-Law. Can you point me to something specific on this question?

In Uganda, the Constitutional Court has held that the statutory provision conferring court-martial jurisdiction over civilians is unconstitutional. An appeal has been pending before the Supreme Court for a long time.

For its many signatories, the African Charter has been interpreted to forbid any exercise of military jurisdiction over civilians.

The Inter-American Court of Human Rights, which applies to, among other States, Colombia, Mexico, Venezuela and Brazil (each of which you cite), has repeatedly disapproved the use of military courts to try anyone other than serving personnel.

Ukraine does not currently have military courts.

I do not believe India's Armed Forces (Special Powers) Act confers criminal jurisdiction over civilians on that country's military courts.

If I am missing something on this important question, I'll welcome further information.

Sincerely,

Eugene R. Fidell

Conscientious objection upheld in Russia

The Russian Federation Supreme Court has recognized the right of a conscript to perform alternative service in lieu of military mobilization, based on the conscript's Christian beliefs. Details here, courtesy of Meduza.

Corte Marcial

On this day in 1855, in Mexico, the Ley Juárez (you'll need to use Google translate) tried to abolish special courts for the clergy and military in an attempt by justice minister Benito Juárez to eliminate the remnants of colonialism in Mexico and promote equality.

Item 15 established: The Supreme Court of Justice as a court-martial, with seven general officers and a prosecutor associated with it for this purpose. It would hear purely military or mixed criminal cases, in the terms provided in this law.

Thanksgiving 2023

In such a fraught time, Thanksgiving is a reach for many people in the United States and around the world. Nonetheless . . . 

Soon sexual criminal offences will no longer be triable by Canadian service tribunals. A good move!

1998. Sexual Criminal Offences triable by service tribunals  

Section 70 of the National Defence Act [NDA], R.S.C. 1985, c. N-5 identifies three categories of criminal offences that, if committed in Canada, are not within the jurisdiction rationae materiae of military tribunals; namely: a) murder; b) manslaughter;  and c) the abduction of children. 

Section 70 also included sexual assault, aggravated sexual assault and sexual assault committed with a weapon or with threats or causing bodily harm. In 1998, this category was suddenly dropped from the list of offences reserved to civilian courts when committed in Canada. From thereon, these sexual offences were investigated and prosecuted under the NDA whether committed in Canada or abroad. 

Surprisingly, the only justification for such significant change to the jurisdiction of Canadian military tribunals was provided in an article written in 2002 by the then Canadian JAG – then Brigadier General Jerry Pitzul – and published in Volume 52 of The Air Force Review.

"To the extent that sexual assault offences have the potential to undermine morale and unit discipline, lessen mutual trust and respect, and ultimately impair military efficiency, the Canadian Forces' inability to deal promptly with such offences was considered problematic."

With this 1998 legislative change, overnight the CAF Military Police and Service Tribunals assumed full jurisdiction for the investigation and prosecution of sexual assaults taking place in Canada and abroad. Over the years, an impressive and growing chorus of voices (including that of this author) called for the repealing of this legislative change.

May 2022. Retired Justice Louise Arbour's Report recommends that sexual criminal offences be removed  entirety from the jurisdiction of  military tribunals

 In  her Independent External Comprehensive Review tabled in May 2022, retired Supreme Court Justice Louise Arbour recommended the removal of sexual criminal offences from the jurisdiction of military tribunals

•  "Recommendation Number 5. Criminal Code sexual offences should be entirely removed from the jurisdiction of the military justice system, and that they should be prosecuted in civilian criminal courts. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity. Where the offence takes place outside of Canada, the MP may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity.  Victims will be told to contact civilian police authorities directly, and such contact to be facilitated by the MP and the CAF so far as possible."

      November 2023. Ministerial announcement giving full effect to Justice Arbour's recommendation to remove sexual criminal offences from the jurisdiction of military tribunals

      On November 20, 2023, the  Defence Minister, the Honorable Bill Blair, announced on the CBC National News evening program  that the National Defence Act, in particular section 70, will soon be amended  – "hopefully by the end of 2003", he added -- to transfer jurisdiction back the investigation and prosecution of  “sexual assaults” [rape] to civilian courts. 

     Conclusion

  

      Sincere congratulations to the Honorable Bill Blair for taking the lead to institute critical reforms to the military justice system. We hope to be shortly able to read the draft legislation to amend section 70 of the NDA.

Trying civiians in military courts -- notes from Pakistan

On November 19, 2023, Islamabad-based columnist Dr. Farrukh Saleem wrote in The News International:

Here’s a partial list of countries that try civilians in military courts: United States, Turkey, India, Egypt, Russia, Columbia, South Korea, Bangladesh, Iran, Israel, Syria, Saudi Arabia, North Korea, China, Myanmar, Afghanistan, Iraq, Libya, Sudan, Yeman, Bahrain, United Arab Emirates, Oman, Qatar, Ukraine, Algeria, Nigeria, Venezuela, Brazil, Mexico, Philippines, Indonesia, Malaysia, Brunei, Singapore, Sri Lanka, Vietnam, Laos, Cambodia, Zimbabwe and Uganda.

In the US, the trial of civilians in military tribunals is regulated by the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ). The US has military commissions designed to try civilians involved in terrorism or violations of the laws of war. Lincoln conspirators, all civilians, were tried by a military commission. President Bush established military commissions through an executive order to try civilians suspected of terrorism-related offenses.

In 2016, Turkish military courts tried civilians, including journalists, academics, and activists. The legal basis for trying civilians in military courts was the ‘Decree Law No 667,’ which granted the military judiciary jurisdiction over civilians accused of crimes related to the coup attempt. This decree, along with subsequent amendments, empowered military courts to hear cases that would typically fall under civilian jurisdiction.

In India, the Armed Forces Special Powers Act (AFSPA) grants special powers to the armed forces allowing for the trial of civilians in military courts. In 1993, the government invoked the Terrorist and Disruptive Activities (Prevention) Act (TADA) to try civilians accused in the 1993 Bombay Bombings Case.

In 2007, some three-dozen civilians, all members of the Muslim Brotherhood, were tried in military courts in Egypt. Three Al Jazeera journalists, who were arrested on charges of spreading false news were also tried in a military court. In 2018, a top auditor, who was arrested on the charge of spreading false news harmful to the military, was tried in a military court. The same year, an Egyptian journalist was tried in a military court for charges that included spreading false news and joining an outlawed group. Civilians in Egypt can be tried in military courts under Law No. 25 of 1966, commonly known as the ‘Law on the Protection of the Armed Forces’.

Russia employs military courts to try civilians under the ‘Federal Law on Countering Terrorism.’ Similarly, Bangladesh utilizes the Bangladesh Army Act for trying civilians in military courts. In Myanmar, the president holds the authority to sanction the trial of civilians in military courts. Bahrain, in 2017, amended its constitution to confer powers upon military courts for the trial of civilians. Singapore has the Internal Security Act (ISA), which allows for the trial of civilians in military courts. In Iran, the ‘Law of the Establishment and Jurisdiction of Revolutionary Courts,’ allows civilians to be tried in military courts.

In the first-of-its-kind hearing (?)

That is the lead to Fadley Faisal, Appellate court upholds Court Martial decision in landmark hearing. Borneo Bulletin, 19 November 2023.

In the first-of-its-kind hearing on Thursday, the Court of Appeal upheld the Royal Brunei Armed Forces (RBAF) Court Martial’s decision in handing a 20-year sentence with eight whippings to a uniformed personnel on multiple charges of sodomy and sexual assault of numerous male army recruits.

No thanks

The judge said Topp knew he was defying the military and federal government in refusing the vaccine and was prepared to accept the consequences.

“You wanted others to see you and hear your message,” she said. “You testified you knew exactly what you were doing and why.”

However, she said she didn’t hear anything “mutinous” from Topp and even suggested that one day he try to enrol again in the military.

From this article in the National Post (emphasis added)

Ministry of Defence appeals to full Supreme Court of Pakistan

The Ministry of Defence has applied to the Supreme Court of Pakistan for an appeal to the full court in the case challenging the use of military courts to prosecute civilians. Details here from the Business Recorder.

Club Ed

Global Military Justice Reform Contributor Tim Dunne writes here about an expensive, pretty-much-empty Canadian military confinement facility. Excerpt:

CFDBSP stands empty of prisoners most of the time – except for the 28 staff members who are retained "just in case" a military member or two are sentenced to incarceration.

In general, the very few who are “imprisoned” do not return to military service. If their sentences extend beyond “two years less a day” they will complete their sentences at a federal penitentiary. After completion of their sentences, they can be released, dismissed or dismissed with disgrace.

If all 25 cells of the CFDBSP were occupied the cost to the Canadian taxpayer would be $100,000 per prisoner.

It is time that military personnel sentenced to imprisonment are removed from the Canadian military on conviction and sent directly to a federal facility. The number of Military Police members be reduced by 28, the same number who are so obscenely underemployed, saving the beleaguered Canadian taxpayer $2.2 million per year.

The Houston Riot Cases, 1917-2023

Over a hundred years later the U.S. Army is owning up, in a way, to one of the most visible symbols of its racist military justice system by granting clemency to 110 Black Soldiers it unfairly convicted by tainted mass courts-martial (military trials) in 1917. Of course this isn't justice, given that 19 of the men were executed, so justice is impossible. Furthermore, this clemency action was not on the Army's own initiative; to the contrary, the Army sat on the petition filed on behalf of descendants for years, despite having the evidence on hand for over a century that these trials were grossly tainted by racism and procedural irregularities.

 

It is telling that when asked about this clemency action, the Secretary of the Army couldn't even bring herself to apologize for these travesties of justice that saw the Army hanging its own men because of their race. Instead, Secretary Wormuth barely owned anything, instead merely stating that “[b]y setting aside their convictions and granting honorable discharges, the Army is acknowledging past mistakes and setting the record straight.”

 

To call the systemic racism that led to these executions and convictions "mistakes" reveals a profound lack of appreciation not only for what happened over 100 years ago, but how those same "mistakes" still infect the Army's flawed criminal justice system today. The Army still court-martials (prosecutes) Black Soldiers at twice the rate of white Soldiers -- no, Black Soldiers don't commit more crimes, they are just punished more because of the racism that lingers in today's Army. Hence the important and necessary clemency action just taken could have been used to acknowledge both past bias and institutional complicity, as well as the current racial issues plaguing the military justice system, with a pledge to fix the latter.

 

This opportunity was not taken, making this clemency action seem performative, as more virtue signaling than anything else. While this clemency action is undoubtedly worthwhile for educating the public on the Army's racist past, and  of course is quite meaningful for descendants of the men whose lives and legacies were forever destroyed, it also signals that the Pentagon leadership continues its complicity with racism in its military justice system. A problem ignored, Ms. Secretary, doesn't go away. It just gets worse.

French military justice

Pierre Bricard, a retired French civil magistrate, has written The Role of the Military Prosecution in France. The article appears in the May 2023 issue of the Brazilian journal Revista do Ministério Público Militar. Excerpt:

. . . [S]ince the Dreyfus affair and the summary judgments and executions of soldiers during the first world war, military Courts have not a good reputation and they have been very frowned upon by public opinion. Moreover, in peacetime, the maintenance of military courts has been no longer necessary. In addition, these courts generated a significant cost for the  State budget. The integration of military justice into the common law judicial organization have been therefore a measure of rationalization and standardization of justice and made it possible to redeploy the military judicial staff to civilian tasks.

     Now in peacetime the military public prosecutor no longer depends on the Minister of Defense but on the Minister of Justice. The peacetime military courts being abolished in 1982, military criminal cases are therefore judged by common Courts composed of civilian judges and the procedure has been brought into line with common law.

A threat to judicial independence in Pakistan

The Pakistan Senate has passed a resolution faulting the recent decision of a 5-member bench of the Supreme Court that invalidated the trial of civilians by military courts. Details here. The Express Tribune reports:

The resolution tabled in the upper house said that “prima facie an attempt has been made to rewrite the law by impinging upon the legislative authority of parliament”.

“The Senate of Pakistan calls upon the apex court to reconsider its decision, urging alignment with the national security paradigm and sacrifices of the martyrs in order to address the concerns raised regarding the ramifications of the judgment on the security and stability of the nation,” it read.

It stated that the invalidation of the jurisdiction of army courts is likely to facilitate vandals and abettors of terrorism and anti-state activities. Military courts have played a pivotal role in delivering justice, particularly concerning acts of terrorism, often instigated by neighbouring adversaries within Pakistan’s borders.

The resolution further said that it resonated with the concerns and sentiments expressed by various stakeholders in particular and the public in general, regarding the SC’s judgment, taking exception to overriding an Act of Parliament, which was well within the previous and existing scheme of the constitutional and legislative framework and duly enacted under the legislative competence of the parliament.

It reiterated that the trial of those accused of violence against the armed forces under the Army Act “is an appropriate and proportional response in line with Pakistan’s existing constitutional framework and statutory regime”.

Within the country’s constitutional framework, the trial of individuals accused of anti-state vandalism and violence under the Army Act serves as a deterrent against such acts.

Firmly standing with the families of martyrs, who have made significant sacrifices for the country, and have expressed feelings of insecurity and treachery due to this decision, the resolution stated.

It fully endorsed the concern of the families of martyrs that the absence of military court trials is likely to encourage or embolden those responsible for acts of terrorism due to the lack of stringent justice in regular courts.

It stated that noting with concern that judgment annuls the sacrifices made by martyrs of the armed forces, civilians and law enforcement agencies in combating terrorism.

The resolution noted that the military courts have played a significant role in addressing terrorism by ensuring that those responsible for terrorist acts are brought to justice.

‘Abandoning the spirit of martyrdom’

However, this judgment while abandoning the spirit of martyrdom, grants lenient option to terrorists, anti-state actors, foreign agents, and spies to be tried in normal courts.”

The resolution further said that the apex court “has not taken into consideration the existing procedures which make it abundantly clear that the sentences given by military courts are not arbitrary and are conducted following due process and formalities”.

The case is pending consideration by an expanded Supreme Court bench. Thus far, no persuasive reason has been given why the offenses at issue could not be tried in civilian courts. The country has been ineffectual for years in upgrading its civilian courts and reducing backlogs and delays. Human rights jurisprudence disfavors the trial of civilians in military courts.

CAAF petition data for October 2022 Term of Court

Data kindly provided by Dr. David Anderson of the Central Legal Staff of the U.S. Court of Appeals for the Armed Forces provide a window on the court's petition docket for its most recent full Term of Court. By the Editor's count, the court received 238 petitions for grant of review, including cases arising under Article 62, UCMJ. This total figure excludes original petitions for extraordinary relief, writ-appeal petitions, and certificates for review, all of which necessarily require the presentation of some appellate issue. 

Of the 238 petitions, the petitioner assigned issues in 143 cases (60.1%); Grostefon issues were personally asserted by the petitioner in 58 cases (24.4%); and 37 "merits" cases (15.5%) were submitted (i.e., with neither assigned nor personally-asserted issues). 

If the Grostefon cases are combined with cases in which issues were assigned in a supplement to the petition, 84.5% of the petition caseload potentially came within the statutory requirement that good cause be "shown," as the legislative history of the UCMJ confirms, by the petitioner. Shouldn't the remaining 15.5% therefore not have been docketed or dismissed upon docketing, the court's decades-long practice to the contrary notwithstanding?

How many judges should sit when CAAF rules on petitions for grant of review?

Longtime followers of Global Military Justice Reform will recall several posts addressing the unfairness of ruling on petitions for grant of review when there is a vacancy on the 5-judge U.S. Court of Appeals for the Armed Forces. Examples appear here, here, and here.

Today, the Supreme Court of the United States issued a Code of Conduct for Justices. The accompanying commentary observes in connection with Canon 3B:

. . . The Supreme Court consists of nine Members who sit together. The loss of even one Justice may undermine the “fruitful interchange of minds which is indispensable” to the Court’s decision-making process. See Dick v. New York Life Ins. Co., 359 U.S. 437, 459 (1959) (Frankfurter, J., dissenting). Recusal can have a “distorting effect upon the certiorari process, requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four out of nine.” S. Ct. Stmt. of Recusal Policy (Nov. 1, 1993). When hearing a case on the merits, the loss of one Justice is “effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” Cheney v. United States Dist. Court for D.C., 541 U.S. 913, 916 (2004) (memorandum of Scalia, J.). And the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue. See Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000) (statement of Rehnquist, C.J.). In short, much can be lost when even one Justice does not participate in a particular case. [Bold typeface added.]

Perhaps the Court of Appeals for the Armed Forces will reconsider its practice next time it considers a petition for review when there is a vacancy or recusal.

Opposition figure facing military trial in Tunisia

This time the accused is Chaima Issa, a leading member of the National Salvation Front. She is charged with inciting soldiers to disobey orders, insulting the head of state, and other serious offenses. Details here, en français.

Some countries make a habit of using military trials to suppress dissent among civilians. Tunisia is near the top of the list.

By the numbers

It's been a while since we ran the numbers for Global Military Justice Reform, the world's leading (only?) global military justice reform blog. 

Here's where we stand, as we approach the blog's tenth [yikes!] birthday: 7,192 posts, 1,053 comments, 1,433,273 hits from 195 jurisdictions, 27 contributors (+1 editor), and 25 town halls.

Many thanks, as always, to everyone -- contributors, readers, commenters, town hall participants -- who has helped bring us to this point. Keep 'em coming.

Corruption in the Nigerian military

Happy Veterans (or Armistice) Day to those who celebrate. A little late to this development, but some big news out of Nigeria last month. Major General Umar Mohammed was sentenced to seven years jail and ordered to pay $2.1 milllion back to the Nigerian Army Properties Limited.

The linked article above and this interview with Femi Falana discuss the efforts to combat corruption in Nigeria's military. Major General Umar Mohammed was the former managing director of the Nigerian Army Properties Limited. 

I attempted to pull more information on the Nigerian Army Properties Limited, but am left to speculate a bit about what it is. I'll share a few of the links I found online about the group. It appears the Nigerian Army Properties Limited is a public/private partnership of sorts, with government money earmarked for military needs.  

Anyway, enjoy your holiday, Veterans! Always an occasion to celebrate when an official goes down for taking monies that were for the troops.

Government appeal of an acquittal

On November 8, 2023, the Court Martial Appeal Court of Canada in H.M. The King v. Crouch, 2023 CMAC 11, in an opinion by Judge Elizabeth A. Bennett, dismissed a prosecution appeal of an acquittal. Excerpt:

[13] The Crown brings this appeal pursuant to s. 230.1(b) of the Act:

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

…

(b) the legality of any finding of not guilty;

[14] The Crown is limited to issues that raise a question of law alone. The parties agree that the grounds of appeal raise questions of law alone.

[15] The test on an appeal from an acquittal is not simply demonstrating that an error of law occurred. The Crown bears a heavy burden on an appeal from an acquittal. The Crown must satisfy this Court that any error (or errors) in the context of the case, might reasonably have a material bearing on the acquittal.

[16] The test has been framed in a number of ways, as noted by the majority in R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609 at paras. 14–16:

[14] It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[15] This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374]

[16] Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2]

[Emphasis added.]

[17] The impact of the errors on the acquittal must not be a matter of speculation (Graveline at para. 17).

Academic opportunity

The U.S. Naval Academy, Vice Admiral James B. Stockdale Center for Ethical Leadership has announced its search for a Stockdale Ethics Fellow for the next year. Applications due by 15 January 2024 and will continue until the position is filled.

Death penalty upheld in Somalian military trial of civilian

Somalia uses military courts to try civilians. Its military court has just upheld a death sentence imposed on a civilian for killing a policeman. Details here. "The government has immensely invested in military courts which are believed to dispense justice not only expeditiously but also meticulously. The government of Somalia has also started reviving civilian courts across the country for access to justice."

By the way, the trial of civilians by military courts is contrary to the African Charter on Human and Peoples' Rights and disfavored by human rights jurisprudence.

Joint Service Committee public meeting

The Joint Service Committee on Military Justice will be conducting a public meeting at the U.S. Court of Appeals for the Armed Forces courthouse, 450 E St., N.W., Washington, DC, on November 14, 2023. Details can be found here and here. You must register to attend. Interestingly, the JSC website notes that the important non-binding Disposition Guidance found in Appendix 2.1 of the Manual for Courts-Martial has been amended as of October 25, 2023. You can find the new version here.

GDMA Trivia

Ron Meister brought this item to our attention. There may be some resonance for those of us who had clients involved in the GDMA tragedy.

From Scandal to Symphony: The Unheard Voices of Fat Leonard (ts2.space)

Some may be unaware, but the movie A Few Good Men originated from a real court-martial, with lots of Hollywoodizing. The allegations stemmed from assaults, not murder, but that didn't trouble the playwright or Hollywood. The actual accused's cases were appealed, and the appellate lawyer provided the transcript to a brother--Aaron Sorkin, who then wrote the stage play.

Gene has already referenced the new version of The Caine Mutiny. And, of course, he managed to capture some science fiction courts surrounding Captain Kirk.

The bottom line is that courts-martial continue to be fodder for Hollywood and playwrights and authors.

In defense, or not, of military trials of civilians

The Daily Times has this op-ed by retired Pakistani Army officer Sikandar Noorani (at left), marshaling the arguments in favor of trying civilians in military courts. Excerpt:

The recurrence of attacks in Baluchistan and KP provinces is a stark reminder that war against the terrorism is not yet over. Advocacy for the ideal constitutional model of a fair trial remains valid in principle but arguments isolated from ground realities usually distort the opinions. It is precisely happening in Pakistan on the issue of military courts. A balanced stance on the sensitive issues of judicial supremacy, fundamental human rights and security compulsions is better than a rhetorical course. Before imposing a blanket ban on the trial of civilians in military courts, one should comprehend the origin of this practice. Brainstorming in silos about fair trial procedures and the rights of an accused will be an unfair approach towards the precarious security dynamics of Pakistan. 

For an opposing view, consider this article by Rida Hosain (at right), a barrister who is counsel in the current litigation. Excerpt:

In the last few days, many examples have been given of how other jurisdictions permit trial of civilians by military courts. These examples have been devoid of context. In England, there are limited categories of civilians who are subject to service discipline including: civilians who are members of military organisations, civilians working in support of the armed forces, civilians on board a crown chip or aircraft etc. Even in the US, the Uniform Code of Military Justice states, in times of “declared war or a contingency operation”, persons serving with or accompanying an armed force in the field can be subject to court martial. The jurisdiction primarily extends to civilians who are serving, or working with the army in certain limited circumstances.

Gunners who came home damaged

A front page article in today's NY Times discusses the traumatic brain injury suffered by US troops sent to bombard the Islamic State in 2016 and 2017.  A strategic decision had been made to avoid sending large numbers of ground troops to fight the Islamic State in Syria and Iraq and instead relied on airstrikes and a handful of powerful artillery batteries.  The strategy worked as the Islamic State positions were mostly eradicated and few American troops were killed.

A small number of troops had to fire tens of thousands of  high explosive shells, far more rounds than any American artillery battery had fired since the Vietnam War.  The cannon blasts were strong enough to hurl a 100 pound round 15 miles.  Each unleashed a shockwave that shot through the crew members' bodies, vibrating bone, punching lungs and hearts, and whipping at cruise-missile speeds through the brain.

The attack on Raqqa, Syria, for example, involved some of the military's most sophisticated cannons, M777A2 howitzers.  The gun crews fired the gun by pulling a simple cord.  The resulting blast was several times louder than a jet taking off, and unleashed a shock wave that hit the crews like a kick to the chest.  Ears rang, bones shivered, vision blurred as eyeballs momentarily compressed and a ripple shot through every neuron in the brain like a whipcrack.  In comparison, in the initial months of the invasion of Iraq in 2003, crews fired an average of 260 rounds.  In the attack on Raqqa, in 2017, each gun fired more than 1,100 rounds in two months.

The crew members continue to suffer from headaches, depression and confusion; some have committed suicide.  The Defense Department has spent close to a billion dollars to research traumatic brian injury but it focuses on the effects from big explosions from roadside bombs and not on the blast waves from the routine firing of weapons.  This prominent, extensive article is designed to give the Defense Department a wake-up call on this issue.

India's Armed Forces Tribunal has held that a soldier may only be tried by summary court-martial if there are grave and compelling circumstances that require prompt action. Details here. Excerpt from the Chandigarh Tribune's account:

The [Chandigarh] Bench comprising Justice Shekher Dhawan and Air Marshal Manavendra Singh (retd) pointed out that the apex court in Vishav Priya Singh’s case in 2016 had quoted the recommendation of a committee of experts appointed by the Defence Minister that SCM should be “used sparingly and exceptionally and preferably only in operational areas where resort to a regular trial is not practicable”. The committee of experts had also opined that “SCM may not be treated as a routine recourse when other effective tools of enforcing discipline are available”.

USS Somers, again

James P. Delgado, The Curse of the Somers: The Secret History Behind the U.S. Navy's Most Infamous Mutiny (Oxford 2022) is the subject of this book review by Professor Gene Allen Smith. Excerpt:

Delgado’s account of the Somers mutiny offers a vivid and entertaining account of the people and circumstances that resulted in one of the most controversial moments in U.S. Naval history. His fascinating view of the sailors’ daily lives highlights the people and the event itself. This book provides an engaging twenty-first century account of the rare mutiny and the punishment of those involved, and how the American people reacted. This outstanding account of such an important issue in American naval history, offers a modern interpretation of the events themselves.

Deciphering the Commander-in-Chief Clause

The current issue of the Yale Law Journal includes Prof. Saikrishna B. Prakash's groundbreaking article on the Commander-in-Chief Clause of the U.S. Constitution. From the abstract:

How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.