Litigator Libations

The U.S. Air Force's Defense Counsel Assistance Program (DCAP) has a lively biweekly podcast called Litigator Libations. Run by Darrel "the DCAP" Johnson, it's also available here. Seventy episodes have been uploaded since 2021. "The Air Force DCAP providing updates and tips on defensive litigation in military justice including discussing recent appellate decisions and advocacy tips." Check it out!

End o' Term

During the Term that ernded on September 30, the U.S. Court of Appeals for the Armed Forces handed down full opinions in 30 cases. One argued case from the Term is hanging fire.

The court ruled on numerous petitions for grant of review as well as original petitions for extraordinary relief, writ-appeal petitions, petitions for a new trial, and procedural motions (many of which sought extensions of time). We know of no original or reciprocal attorney disciplinary matters during the Term. 

On September 30, the court issued revised Rules of Practice and Procedure that went into effect on October 1. It also entered the usual Notice concerning the Rules Advisory Committee:

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following persons are, this 30th day of September, 2024, hereby appointed as members of the Rules Advisory Committee, effective October 1, 2024, for a term expiring on September 30, 2027:

Mr. Dwight H. Sullivan, Esq., Mr. Thomas E. Booth, Esq., Mr. Seth D. Berlin, Esq. 

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

 To expire on September 30, 2025:

 Prof. Alan B. Morrison (Chair), Ms. Michelle Lindo McCluer, Esq., Ms. Carol K. Joyce, Esq.

To expire on September 30, 2026:

Mr. William A. DeCicco, Esq., Ms. Rebecca S. Snyder, Esq., Mr. Solomon L. Wisenberg, Esq.

The Clerk of the Court is an ex officio member of the Committee and serves as its Reporter.

The Court expresses its deep appreciation to John P. Taitt for his distinguished service as a member of the Rules Advisory Committee.

According to USASpending.gov, the court's obligated amount for FY24 was $15,692,849 as of August 30. Of that, 57.49% ($9,021,524) went to Personnel Compensation and Benefits.

In the Reading Pile

Justice Logan, Commonwealth Military Justice Systems - An Australian Perspective. Federal Court of Australia, 10 September 2024 (A Paper delivered at the Commonwealth Magistrates' and Judges' Association Conference, Kigali, Rwanda).

The Transformation Project is proceeding according to an agenda charted out by Commonwealth Law Ministers in November 2022. Since then, as a sequel to a meeting of experts at the Stellenbosch Institute for Advanced Study in November 2023, an initial draft of the Commonwealth Military Justice Principles (the Stellenbosch Draft) has been produced.  

See Transformative military justice principles envisioned by experts from across the Commonwealth. The Commonwealth, 4 December 2023.

The Commonwealth Military Justice Transformation Project was conceived in 2021. His Honour Judge Alan Large, Judge Advocate General for the United Kingdom, Commonwealth Military Justice Transformation: Project.

Link to Findlay v. U.K. and Grieves v. U.K. in the ECHR.

The militarization of Mexico?

Article 21 of the Mexican Constitution provides in relevant part that: Public safety institutions, including the National Guard, will be of civilian character, disciplined and professional ("Las instituciones de seguridad pública, incluyendo la Guardia Nacional, serán de carácter civil, disciplinado y profesional.").

In Mexico, the Federal Police was abolished in 2019, because it was considered very corrupt. In its place the National Guard was created, under civilian supervision, although it was decreed that the National Guard would participate in military tasks for 5 years.  The opposition parties voted for it on the condition that it remain under civilian rule.  It should be noted that 80% of the 130,000 members of the National Guard come from the Army and the Navy.

In 2022, the President presented an initiative to move the National Guard to the control of the Mexican Army.   President Lopez Obrador of the Morena party, as well as the PT and PVEM, attempted three times to remove the National Guard from its civilian head, the Secretariat of Civilian Security and Protection (SSPC) to the Secretariat of National Defense (Sedena), the administrative arm of the Army, Navy and Air Force.  The opposition parties (PAN, PRI and MC) have claimed that this constitutes the "militarization of the country."  Morena's proposal would change the Constitution to say that the national Guard "is an armed force with the essential function of assisting public safety, permanently, of military origin and formation."  In September 2022, this constitutional reform proposal was approved but it was never completed because the Mexican Supreme Court declared it unconstitutional in April 2023.

A few days before the end of President Lopez Obrador's six-year term, the proposal to remove the National Guard from its civilian control to military control was approved on September 24, 2024, after a marthon 8 hour plus session.  Given the high levels of violence with the drug cartels in Mexico, President Lopez Obrador promised in 2018, to send the military back to their barracks, but he discovered that he needed the military to deal with the continuing violence.  The police were outgunned and infiltrated by the drug cartels and the new National Guard was comprised mainly of former members of the military.  The President maintained that the National Guard was worthy of confidence and not corrupt, but human rights groups argue that placing them under the command of the Armed Forces can increase human rights abuses, such as arbitrary detention, torture, forced disappearances and extrajudicial executions.

The Inter-American Court of Human Rights, in a 2018 decision that was taken into consideration by the Mexican Supreme Court (Alvarado Espinoza et al. v. Mexico, Judgment November 28, 2018) stated that "although the States Parties to the Convention could deploy the Armed Forces to perform tasks over and above thosse inherently related to armed conflicts, this use of the military should be limited insofar as possible and respond to conditions of strict exceptionality to address situations of criminality or internal violence, because the military forces are trained to defeat and enemy and not protect and control civilians, which is the specific training provided to police forces."  One can only assume that this latest reform will be brought to the Mexican Supreme Court again.

Standards of conduct and accountability in military operations -- ISMLLW Conference, Dec. 10-12, 2024, Abu Dhabi

This just in from the International Society for Military Law and the Law of War:

It is with great pleasure that we announce our international Conference hosted at ERTH Hotel in Abu Dhabi (United Arab Emirates) from 10 to 13 December 2024 (arrivals on 9 December 2024). The central theme of this Conference is:

Standards of Conduct and Accountability in Military Activities, the Role of Military Law and International Humanitarian Law, and the Importance of Preventing Armed Conflicts

We gratefully acknowledge the support and great hospitality of the Ministry of Defence of the United Arab Emirates in organizing this Conference. 

Together with the host country, will offer a highly interesting and diverse programme in Arabic and English (with simultaneous translation from Arabic to English and French, and from English to Arabic and French), featuring internationally renowned experts. Herewith you will find the outline of the Conference programme [available here], as well as the necessary Conference application form [available here]. The detailed Conference programme will be made available on our website in its most current version. It will also be sent to registered participants.

We advise you to take due notice of the reduced participation fee for members. The deadline for sending in completed and signed application forms is 4 November 2024. However, please note that places are limited and that we may have to close the registration process earlier. Once we have received and accepted the completed Conference application form in consultation with the host country, a confirmation of registration will be sent by e-mail. This confirmation becomes final upon payment of the applicable registration form.

Registered participants are recommended to book their accommodation at ERTH Hotel, which offers discounted rates for bookings until 1 November 2024. For instance, a standard room will cost 750 AED (taxes and buffet breakfast included). After 1 November 2024 availability of rooms at ERTH Hotel can no longer be guaranteed. Registered participants will receive the necessary form to book the room of their choice at ERTH Hotel.

Please note that travel to and from the United Arab Emirates as well as accommodation in Abu Dhabi are an individual responsibility. Visa requirements may apply. We strongly advise you to verify these timely. In light of transportation services offered by the host country, Conference participants are strongly advised to arrive at and fly from Zayed International Airport (AUH), Abu Dhabi. Registered participants will be requested to inform the host Country via the Society of their travel details with a view to organising transportation from and to the airport.

We will be highly pleased to welcome participants from your country or organisation at ERTH Hotel in the fascinating city of Abu Dhabi, and we are looking forward to a vibrant and international exchange of ideas on several of today’s challenging legal issues.

On the shelf

United States Military Justice in the Civil War: Court-Martial Practices and Administration by R. Gregory Lande.

Amazon Abstract:

Despite its relative invisibility to the public, the administration of military justice during the Civil War played a vital role in maintaining the discipline necessary for Union military success. While some scholars have criticized the Union military courts as arbitrary and excessively harsh, others have defended it as a necessary means of maintaining order in the face of unprecedented challenges faced by the Union. Drawing on extensive primary research, this history presents a compelling narrative based on a statistical analysis of 5,000 Union military trials, court records, historical legal publications, and insights from contemporary historians. This work analyzes the relationship between alcohol misuse and misconduct, covers the differing approaches to sexual misconduct across the services, and exposes the uneven and sometimes unfair application of military justice. Offering a balanced perspective on the struggle between maintaining discipline and protecting the legal rights of service members, this history is the first of its kind.

Other offerings include: Stephen C. Neff, Justice in Blue and Grey: A Legal History of the Civil War. Harvard Univ. Press, 2010, and broader in scope, Chris Bray, Court-Martial: How Military Justice has Shaped America from the Revolution to 9/11 and Beyond. W. W. Norton, 2016.

Desertion in Russia

The Heavy Toll of Desertion from the Russian Army introduces The Deserter, a powerful long-form piece by Sarah A. Topol in The New York Times Magazine. Excerpt from The Heavy Toll:

It’s impossible to know the real statistics of desertion. Mediazona, an independent Russian investigative outlet in exile, says there have been almost 7,400 AWOL cases in military courts since the start of the mobilization, but experts agree that’s only a small fraction of the number who have tried to escape. This is while the Russian authorities have made it more and more difficult to avoid service.

Last year, the authorities also raised the maximum age of conscription to 30 from 27, which will increase the number in the pool to at least 700,000 by 2025. In April, Mediazona wrote that the rise in the number of deserters in 2024 was “unprecedented.” But soldiers most frequently receive suspended sentences so they can return to base, apologize and be sent straight back to the front line.

The actual number of deserters is most likely much higher because few commanding officers want to officially declare a subordinate AWOL; they don’t want to get knocked by superiors for losing track of a man. So everyone tries to solve the situation on their own to avoid officially entering a soldier’s name into the system.

Will Canada's sex cases be tried downtown?

 CBC reports:

"CBC News has obtained documents that show a working group will study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in sexual misconduct cases within the Canadian Armed Forces."

The social media to prison pipeline gets shut down, fortunately

Being a member of the United States military is an aweseome responsibility. 18 year-olds operate machine guns. 24-year-olds fly million dollar jets. 

One's obligations extend beyond handling dangerous and expensive equipment. You have duties to your brothers and sisters in arms, your leaders, subordinates, and to the reputation of the service—you can't do anything that discredits it to the public. 

In fact, engaging in conduct that discredits the service, or in conduct that is found to be unbecoming of someone in the officer corps, can result in criminal charges.

The military also gives 26-year-old attorneys more opportunities to try cases than you get almost anywhere in the country. While young military attorneys do not control the cases that go to trial, they advise (and influence) those that do, advocating with commanders and supervisory attorneys who do not know the cases as well. 

So it's understandable how a case of bad judgment on social media by a 54-year-old lieutenant commander (the equivalent of a major, for those who understand normal ranks) ends up at a court-martial. 

Navy Lt. Cmdr. James Dickerson posted a video to TikTok, In it, he lip syncs a Frozen video with curse words and flips off the camera while wearing his uniform. The Air Force Times published a story on his court-martial and acquittal here. 

So an officer does a dumb thing, faces too harsh of a penalty for it, but fortunately he gets acquitted. Everybody spends way too much time dealing with a poor sap with bad judgement. Hopefully everyone learns their lessons and moves on. 

To help ensure this happens, I'm going to post the following lessons explictly, even if most people figured this out on their own. 

1. Don't try someone at court-martial because they did something stupid. There was no real underlying crime here. Just a guy being weird, recording it and publishing it.  

2. If you're posting stuff while in uniform on social media, keep it more to the LinkedIn style. It's a profession after all.  

3. If you're past your 40s, don't post videos of yourself on TikToklip lip syncing Frozen songs, regardless of whether you're in uniform or not. While maybe not service-disrediting to the point of criminal conviction, you've just discredited yourself in front of your leaders and subordinates forever.   

There's probably a few more lessons in there, but I think I wrang all the juice out of this one. What an embarrasment for everyone involved. 

Australian military justice -- from the final report of the Royal Commission

The final report of the Australian Royal Commission into Defence and Veterans Suicide includes a description of the country's military justice system. You can find it in chapter 10 of volume 3 of the report. 

Watch for further developments as a result of the Royal Commission's inadvertent premature release of a report it received in evidence from the Inspector General of the Australian Defence Force, which includes numerous recommendations.

IHC wants an answer

Does the Pakistani government plan to try former prime minister Imran Khan by military court or not? The Islamabad High Court wants to know by September 24. Details here and here.

Meanwhile, the intra-court appeal of a 5-judge bench's decision barring military trials of civilians remains in limbo at the Supreme Court of Pakistan.

CAAF rule changes -- the value of commenting

Did you happen to notice that the U.S. Court of Appeals for the Armed Forces made some changes in the rule changes it proposed earlier this year in response to comments from the public? You can find the explanation in this Federal Register notice. Moral: comment! Your comments may improve the results of the rulemaking process.

P.S. Comments are also welcome on Global Military Justice Reform, but you'll need to use your real name. Go ahead -- take the plunge. What's the worst thing that could happen?

VAdm Edmundson (retired) acquitted

Today, 16 September 2024, Justice Matthew C. Webber of the Ontario Court of Justice handed down the verdict in the trial of Vice-Admiral Haydn Edmundson (retired) on charges of sexual assault and committing and indecent act.  Edmundson was acquitted of both charges. 

Edmundson was charged December 2021.  However the investigation against him - and against other high-ranking officers of the Canadian Forces -  had been leaked  long before the charges were laid.  And the Canadian Forces and Department of National Defence have offered little or no explanation regarding who may have leaked information regarding ongoing investigation.  It is not clear if there has even been any effort to try to uncover the source of the leaks.

What is clear is that these leaks, most of which occurred contemporaneously, destabilized the senior leadership of the Canadian Forces.  Many of the officers who were accused of misconduct either chose to step down, or were forced out by political decision-makers.  Many of the allegations, like those against Vice-Admiral Edmundson, were dated and appeared to have come to the attention of the military police as a result of claims made under the Class Action for Sexual Misconduct in the Canadian Forces.

The allegations against Vice-Admiral Edmundson were alleged to have occurred in November 1991, 30 years before he was charged.  At the material time, the Code of Service Discipline did not have jurisdiction over sexual assault alleged to have occurred in Canada.  The allegations against Edmundson were alleged to have occurred outside Canada; however, the charges were laid under the civilian criminal justice system.

Edmundson's trial was conducted over 8 non-consecutive days, beginning 8 February 2024.  After closing arguments were heard in early April of this year, Justice Webber adjourned to consider the evidence and prepare his verdict.  He twice extended the anticipated date of the verdict, most recently, on 27 August 2024, indicating that he would hand down his judgment and reasons on 16 September 2024.

Justice Webber held that the Crown had failed to prove the case to the criminal standard - beyond a reasonable doubt.  He cited concerns with the complainant’s memory of what happened more than 30 years ago, and a lack of evidence to corroborate her account, stating: "There are just too many problems, and I’m not in the business of … declaring what happened. That’s not my job ... my job is to just decide whether or not guilt has been proven to the requisite standard, and it hasn’t ...”. 

Regarding the alleged "indecent act", the complaint testified that she "went berserk", yelling at Edmundson and turning on the lights to wake the officer who allegedly occupied a berth in the same quarters.  However, that purported officer was never identified, and Edmundson testified that he was the sole occupant of the quarters.  Nor was there any evidence from anyone else indicating that such a disturbance had occurred.  Justice Webber concluded that he did not believe that the complainant could have caused such a disruption on board a navy ship at night without notice from others.

Some of the surrounding evidence regarding the alleged sexual assault was purportedly corroborated by another witness (whose identity was protected by a publication ban).  However, during the trial, when cross-examining the witness, Edmundson's lawyer, Brian Greenspan, produced a transcript of an interview of that witness by CBC reporter Ashley Burke.  Greenspan argued that the reporter told the witness key details of  the complainant's story before asking her any questions, and that the witness would not otherwise have been able to corroborate the story.

In his decision, Justice Webber said the witness' evidence “... cannot be relied upon in any respect to corroborate that evidence of the complainant, because it’s it’s clearly a tainted recollection, doesn’t represent a real memory.”

This was the last adjudication of allegations of sexual misconduct against former General Officers and Flag Officers (GOFO) of the Canadian Forces.  There have been no convictions, and, in some matters, charges were never brought, or prosecutions were stayed.

And the Canadian public still does not know who leaked information relating to the military police investigations.

Further information regarding Vice-Admiral Edmundson's (retired) acquittal may be found in reports by:

CBC News

Global News

CTV News

"Stripped of medals"

Military.com reports: Several serving and former Australian military commanders have been stripped of medals over allegations of war crimes committed during the Afghanistan war, Defense Minister Richard Marles said Thursday.

Holding commanders to account for alleged misconduct of Australian special forces between 2005 and 2016 was recommended by Maj. Gen. Paul Brereton in his war crimes investigation. Brereton found that around 25 Australian Special Air Service Regiment and Commando Regiment troops were involved in the unlawful killing of 39 Afghans.

The revocation of military medals is not new, even VC's have been taken back. Allegedly the first VC taken back was because the holder had stolen another officer's medals. Here, we asked if the recent conviction and resignation of Major General Roddis would result in his medals being taken back.

See also Dave Hunt, Stripping medals from soldiers is murky territory, and must not distract from investigating alleged war crimes. The Conversation, 14 June 2023.

Military Memories: Draft-Era Veterans Recall Their Service

A just-released paperback edition is available from Anthem Press and Amazon. (Full disclosure: one essay is by the Editor.) Publisher's description:

Eight American military veterans of the Vietnam/Cold War era describe their service and its influence on their lives since leaving active service in this book. Their stories are preceded by a concise history of America's methods of raising its military forces from colonial days to today. Particular focus is given to the 34 years in which the nation relied on the possibility of mandatory service (the draft, Selective Service) from young men. Drafted service was essential to America's role in World War I, World War II, the Cold War with the Soviet Union, and the Korean and Vietnam Wars. Special emphasis is given to Congressional acceptance of drafted service in World War I which shaped the remaining uses of the draft until 1973.

The largest part of the book provides the author's recollections of their service in the Army, Navy, Air Force, Marine Corps, and Coast Guard in the United States and overseas. Their service was compelled or stimulated by the presence of the draft. Their military service then shaped the next half-century of their working lives.

The final section of the book provides the author’s collective recollections of their military service as seen from the third decade of the 21st century and half a century after the end of the military draft. They reflect on the challenges faced by the current American military and the possibilities of a return to some form of drafted military service.

The late Donald N. Zillman edited the book. 

Over at The New Yorker

The New Yorker has a Sept. 10, 2024 piece by Parker Yesko titled The Failures of the Military-Justice System. The War Crimes That the Military Buried can be found here. It is a companion piece to the "In the Dark" podcast:

In nine podcast episodes, the third season of In the Dark examines the killings of 24 Iraqi civilians by U.S. Marines in Haditha, Iraq, in November 2006. The investigation looks at the subsequent probe announced by the American military, which followed an outcry in the global media and a pledge of accountability by President George W. Bush—but resulted in no prison time for anyone involved.

The series, a product of four years of reporting, is based on hundreds of interviews and thousands of pages of previously unreleased government documents. It will be accompanied by several multimedia features. America’s conflicts in Iraq and Afghanistan have largely faded from the headlines, and this project uncovers new information, not previously reported, about war crimes committed during America’s so-called Forever War. 

Excerpt from Ms. Yesko's Sept. 10 piece:

Of the seven hundred and eighty-one cases we found, at least sixty-five per cent had been dismissed by investigators who didn’t believe that a crime had even taken place. Soldiers would return to the United States and confess—to women, health-care workers, job interviewers—that they’d murdered civilians or prisoners, but military investigators would find that the allegations couldn’t be substantiated. Detainees at Abu Ghraib prison reported abuse by their guards, but investigators did not find sufficient evidence to confirm that it had happened. Civilians driving distractedly or too fast were shot dead approaching traffic checkpoints, and investigators deemed these killings acceptable escalations of force. Young men were found unresponsive at Camp Bucca prison, and their deaths were attributed to natural causes.

In a hundred and fifty-one cases, however, investigators did find probable cause to believe that a crime had occurred, that the rules of engagement had been violated, or that a use of force hadn’t been justified. These include the case of soldiers raping a fourteen-year-old girl and subsequently murdering her and her family; the alleged killing of a man by a Green Beret who cut off his victim’s ear and kept it; and cruelty toward detainees at Abu Ghraib prison and at the Bagram Air Base detention facility. They were offenses that even a military-justice system vexed by the difficulty of collecting evidence in war zones and forgiving of deadly errors in judgment had identified as warranting prosecution or punishment. Yet, even in these cases, meaningful accountability was rare.

We identified five hundred and seventy-two alleged perpetrators associated with these hundred and fifty-one criminal cases. Only a hundred and thirty of them were convicted. The records show that they rarely received lengthy prison terms. Much more often, their cases were dealt with by commanders, who have broad discretion to punish their troops with extra duty, demotions, or reprimands, circumventing formal prosecution altogether. (The commanders themselves almost never seemed to face consequences for the misdeeds of their subordinates.) Fewer than one in five alleged perpetrators appear to have been sentenced to any type of confinement, and the median sentence was just eight months. “The conviction rates and the rate of sentencing for these kinds of very serious person crimes is just far below what you would see in the civilian system,” [John] Roman said.

We sent summaries of our findings to the Army, the Navy, the Marine Corps, and the Air Force, and requested an opportunity to present their leaders with the details of our analysis. None took us up on the offer. The Army replied that it “holds Soldiers and Army Civilians to the highest standards of personal conduct.” The Marine Corps didn’t respond.

The In the Dark project is supported by The Pulitzer Center. 

Comments on the project and its work are invited. Please remember to give your name; comments are moderated. Anonymous or pseudonymous comments will not be posted, in keeping with Global Military Justice Reform's usual practice.

Royal commission report issued in Australia

The final report of the Australian Royal Commission into Defence and Veteran Suicide is available here. The Commission's very first recommendation suggests this was not an easy process:

Recommendation 1: Improve the capacity of future royal commissions to undertake their inquiries

To enable the efficient operation of future royal commissions:

a. the Australian Government should amend the Royal Commissions Act 1902 (Cth) so there are meaningful consequences for non-compliance with a compulsory notice

b. the Australian Government should undertake measures to ensure that royal commissions benefit from more independent representation in government, either by:

i. setting up protocols that limit the engagement of the Royal Commissions Branch of the Attorney-General's Department with the Australian Government Solicitor (AGS), or

ii. moving the Royal Commissions Branch to a separate agency, for example to the Department of Prime Minister and Cabinet, or:

iii. setting up a liaison person or team in the Attorney-General's Department, whose role is to deal with royal commissions only

c. the Australian Government should apply consistent and transparent arrangements to allow royal commissions timely access to material covered by public interest immunity, and consider legislative amendment to facilitate royal commissions' access to this material

d. The Attorney-General's Department should provide settled advice and options on the operation of public interest immunity, Parliamentary privilege and procedural fairness in the operation of royal commissions.

The government's initial response:

Defence Secretary Greg Moriarty and Chief of the Defence Force Admiral David Johnston have acknowledged the release today of the Royal Commission into Defence and Veteran Suicide Final Report.

In a message to Defence staff, the leaders said the Royal Commission had enabled all in Defence to reflect on the department’s policies, processes and practices. 

“It has been sobering to hear of experiences of our current and former personnel, their families and loved ones, particularly where Defence has let people down, and not aligned actions with our values of Service, Courage, Respect, Integrity and Excellence,” they said.

The inquiry had brought into focus issues that needed to be addressed within Defence, and the impact these issues have had for serving and former serving personnel, their families and loved ones, and the broader Defence community.

“The Royal Commission’s recommendations will require significant reform across Defence and this will require leadership – and we are committed to doing better for our people,” Mr Moriarty and Admiral Johnston said.

They acknowledged there would be current or former serving ADF members and Defence personnel impacted by the report, and said support was available to people in the Defence community for whom the Royal Commission has raised issues that were personally challenging.

“Defence is continuing to evolve our culture that prioritises the wellbeing of our people who strive every day to contribute to our common goals and mission. We are committed to prioritising programs that address suicide and suicidality, and promote mental health,” they said.

“Defence is supporting the Government as they consider their response. 

“Once again, we thank everyone for their commitment to the work of the Royal Commission.”

And now there are five

Two new military judtges have been appointed in Canada: Colonels Stephen Strickey and Nancy Isenor. The press release announcing their appointment (datelined Seoul, ROK, because that is where Minister of National Defence Bill Blair is currently visiting) can be found here.

The new judges join Captain (Navy) C.J. Deschênes (Chief Military Judge), Lieutenant-Colonel Louis-Vincent d'Auteuil (Deputy Chief Military Judge), and Commander Martin Pelletier.

Investigating yourself

Prof. Claire Simmons of the Royal Military Academy Sandhurst has written an insightful post for West Point's Lieber Institute's Articles of War series: Military Investigations in Armed Conflict: Investigating Themselves?  Her take on the role of loyalty and military culture:

Finally, there are matters of loyalty and military culture which I believe are the main concerns behind the quip cited at the beginning of this post. ["We investigated ourselves and found we did nothing wrong."] This is because the armed forces are always, and explicitly so, institutions based on loyalty as a value which is encouraged and promoted. It is a value for which it is necessary for members to fight effectively and potentially lose their lives.

But suggesting that this loyalty will always be problematic is itself a problem. It is necessary to look instead at when this loyalty may have become “toxic,” when members of a specific group consider themselves above the law and will do anything to protect the members within. And it is also necessary to identify the catchment of this toxic loyalty. Is it present within a unit, a platoon, a division, a service, the armed forces as a whole? Or even something broader, such as along national, ethnic, or religious lines? Such toxic loyalty can indeed pervade spheres beyond the armed forces, in which case civilianising the process would not solve the problem.

Being a member of the same institution will not necessarily mean an investigator should be considered “toxically loyal” to all its members to a point where they would try to cover up their misconduct. In fact, in some cases, it may have the opposite effect, as individuals loyal to their institution might want to weed out such behaviour.

These cultural issues linked to impunity go beyond issues of independence and impartiality, and merit further research, given the wide-ranging issues tied to the closing of ranks and the “wall of silence” in multiple investigations into military conduct. Further independence in such contexts would not solve these challenges and may in fact aggravate them.

Prof. Simmons's post is based on her recent, timely book, Military Investigations in Armed Conflict: Independence and Impartiality under International Law (Routledge 2024). 

Challenges to "anti-sodomy" laws

Dánica Coto, A top court in the Dominican Republic deliberates anti-sodomy laws targeting police and military. Midland Daily News, 24 August 2024.

A top court in the Dominican Republic has agreed to review a challenge to laws dating from the last century that criminalize gay sex involving members of the army and police force.

It’s the first time in recent history that someone in the socially conservative Caribbean country has challenged laws that punish such actions with up to two years in prison for police and one year for the military.

The Dominican Republic’s Constitutional Court heard the case on Friday and is now deliberating the laws that date from 1953 for the army and 1966 for the police.

Should those convicted of serious crimes remain in the Irish Defence Force

Julieanne Corr & Ken Foxe, Cast convicts out of army, urges Natasha O’Brien. The Sunday Times, 8 September 2024.

Natasha O’Brien, who was beaten unconscious by an Irish soldier in 2022, said she was “absolutely devastated” to learn that three other recruits convicted of assault in the past four years were still in the Defence Forces. 

The Defence Forces have said that of 79 troops found guilty of crimes under civil and military law over the past four years, 54 of them remain in service.. . .

Earlier this year, Simon Harris, the taoiseach, said any member of the Defence Forces with a criminal conviction should not remain in the organisation. However, new data shows of the eight members of the Defence Forces convicted of assault over the past four years, three who continue serving.The data also shows soldiers convicted of offences including misuse of drugs, assault, breaches of Covid-19 restrictions, and robbery or burglary are still serving.

Provide training to officers for properly conducting Summary Court Martial: Delhi High Court

In a detailed judgment rendered recently, the Delhi High Court has set aside the dismissal from service of a trooper of the Border Security Force (BSF), a border guarding central armed police force of India, and held the Summary Security Force Court (SSFC) which is akin to a Summary Court Martial of the Army, which had awarded the said punishment, to have acted illegally.

Notably, the High Court has also directed that officers holding such trials must be trained in this regard to prevent miscarriage of justice. The same has been directed in the following words:

"42. Having dealt with the claims raised in the present petition, we may also note that this Court has been coming across a number of cases where the SSFC proceedings are being conducted in a lackadaisical and perfunctory manner by disregarding the rules and procedures laid under the BSF Act and Rules. It is also being noticed that despite there being no urgency, SSFC proceedings are being conducted in almost every case as a matter of routine. The provisions providing for other kinds of Security Force Courts which lay down more elaborate procedure for trial are very rarely being resorted to. This raises a serious concern as any deviation from the Rules and the laid down procedure during the trial not only compromises the rights of the accused but also results in grave injustice especially in cases where the trials, pertaining to misconduct committed by the Force personnel, ends with an award of a major penalty of dismissal from service. Such a harsh penalty can have a lifelong implications not only for the officer involved but for this entire family.

43. It, thus, becomes incumbent upon the Officers conducting the SSFC proceedings to be properly trained and sensitized of the manner in which the SSFC proceedings ought to be conducted, i.e. by giving due regard to the rules and procedures outlined in the BSF Act and Rules. The Presiding Officers holding the SSFC must understand that these trials are not just mere formalities but are a fundamental aspect of ensuring justice and maintaining discipline in the Force by following the prescribed procedure. The Presiding Officers have to be sensitized on these matters in order to safeguard the rights of the accused as well as the commitment of the Force in upholding the rule of law and maintaining the highest standards of discipline within its ranks. Failure thereof, will only result in miscarriage of justice, for both the individuals as well as the Force.”

A news-report on the issue in The Indian Express can be accessed here.

The full judgment can be
accessed here.

9/11's Legacy: Law & Politics

Villanova's Military and Veterans Law Society and Prof. Brenner Fissell are hosting a discussion on Sept. 11 that may be of interest to readers of Global Military Justice Reform. Details can be found here.

On the anniversary of the September 11th attacks, join Profs. Claire Finkelstein and Eugene Fidell to reflect on the legacy of the attacks for both law and politics.

Wednesday, Sept. 11, 12:30 p.m. (East Coast time)

Zoom: https://villanova.zoom.us/j/91647384492

In-person: Villanova Law School, Room 302

See you there!

Reich Court-Martial exhibit

Global Military Justice Reform contributor Brigadier General (ret) Jan Peter Spijk has kindly provided this post:

Travelling Exhibition Reichskriegsgericht (Reich Court-Martial) in World War II

On August 29, an important exhibition opened in Halle, Germany, to inform the public about the history of the Reichskriegsgericht - the Reich Court-Martial – which formed the pinnacle of National Socialist Military Justice in the years 1936 – 1945.

The history of this military court dates back to 1900, when it was established by the German Emperor after the Prussian-led unification of Germany. It had its seat in a prestigious building in Charlottenburg, Berlin. After World War I, the Weimar Republic in 1920 abolished the separate jurisdiction for military personnel.

However, after the Nazi seizure of power in 1933, courts-martial were reinstated by law, effective 1 January 1934. The Reichskriegsgericht (RKG) was re-established as the Military Supreme Court on 1 October 1936.2 According to the Wartime Criminal Code of Procedure (Kriegsstrafverfahrensordnung, KStVO) enacted by the German Führer Adolf Hitler and Field Marshal Wilhelm Keitel on 17 August 1938, the RKG had jurisdictional competence over acts of high treason, treason and aiding the enemy. Until 1940, the RKG was also responsible for handling ‘severe cases’ of ‘undermining military force’. Under this regime 215 conscientious objectors were sentenced to death, among whom many Jehovah’s witnesses and Seventh-Day Adventists. The court also had sole responsibility for all legal proceedings against highest-ranking Wehrmacht officers.

The RKG consisted of initially three, from November 1941 on four, ‘Senaten’ (Chambers), each consisting of four military lawyers/justices and three (other) officers. Attached to the RKG was the Reichskriegsanwaltschaft (the Reich military prosecution service), consisting of 20 military lawyers. The President of the RKG was in the position to either confirm or nullify the judgments, unless Adolf Hitler, in his capacity as ‘Supreme Justice of the Wehrmacht’, decided to do so.

In full conformity with what became common practice in the regular German judiciaries, the military courts increasingly saw a so-called ‘extended application of the law’, which meant that also ‘Rassevergehen’ (‘racial crimes’) and ‘politically motivated crimes’ could lead to a conviction.

Apart from its role as the Military Supreme Court for military personnel, the RKG also tried several thousand members of resistance groups from the European countries invaded and occupied by Germany during the Second World War. Thus, it was an essential instrument for enforcing the Nazi-policy of occupation and repression.

In the timeframe from August 1939 until February 7, 1945, the RKG decided on 1.189 death penalties, of which 1.049 were executed. Many thousands were committed to prisons, Wehrmacht penal units and concentration camps. The 1941 proceedings against those involved in the German resistance network labelled the Rote Kapelle (‘Red Orchestra’) are particularly well known.

In 1998, 2002 and 2009 the German Parliament adopted laws which nullified ‘national-socialistic criminal convictions, contrary to elementary principles of justice’, including many convictions of the RKG.

The exhibition in Halle, Germany, will last until October. Afterwards, stops are planned in Warsaw, Berlin and Paris, among others.

Military Justice in Germany after World War II

The military courts-martial were abolished on August 20, 1946, by decision of the Allied Control Council. Although the Basic Law of the Federal Republic of Germany provides for the possibility of establishing military criminal courts exercising criminal jurisdiction over members of the armed forces, it has not made such federal courts mandatory. The Federal Republic of Germany has not yet made use of the possibility to establish such a court.

Bundeswehr soldiers will be tried before ordinary – civilian - courts for all offences, including military offences. In some instances the Military Penal Code provides for ‘special jurisdiction’. This is applicable in case of:

- criminal offences committed during a foreign deployment. For these cases the place of jurisdiction is the civilian court in the city of Kempten (Bavaria).

- military disciplinary proceedings pursuant to the Military Disciplinary Code. Serious disciplinary offences are tried by the Bundeswehr disciplinary and complaints courts in Münster and Munich. The Bundeswehr disciplinary and complaints courts are composed of a civilian judge and two military personnel as honorary judges. Appeals are decided at the (civilian) Federal Administrative Court.

Judicial disciplinary proceedings against Bundeswehr members are initiated by so-called ‘instituting authorities’. These are military commanders at division level or higher. These military commanders are supported by an Armed Forces’ Disciplinary Attorney (Wehrdisziplinaranwalt), assigned to him. This disciplinary attorney is a civilian lawyer qualified to hold judicial office and whose main function is that of a legal advisor to the respective military commander.

In practice, the legal advisors assigned to the military HQ’s in the Bundeswehr do not only advise on matters of disciplinary and criminal law, but also on all other relevant legal issues, including the application of International Humanitarian Law (Law of Armed Conflict) during military operations. These civilian legal advisors hold military (officer) rank and will wear uniform when deployed or during exercises.

The case of the secret plea bargains

Have you noticed that the Guantanamo military commission pretrial agreements Defense Secretary Lloyd Austin purported to rescind haven't been made public. The news media have objected to the lack of transparency. Here's a report from NPR.

Concurrent jurisdiction and the accused's right to elect the forum

Nasiri Tijani, Uhochukwu Charles Kani, and Femi Olorunyomi have written an interesting article titled Arrest, Investigation, Trial of Persons Subject to Service Law by Civil Courts in Nigeria and Their Right to Elect Forum for Trial, 9 Afr. J. Crim. L. & Jurisprudence 25 (2024), in response to the high-profile case of Brig. Gen Jafaru Mohammed vs. EFCC & Anor. (2022) LPELR 58538 (CA). The authors' abstract follows:

Under the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004, persons subject to service law can be tried for two categories of offences: Military offences and Civil offences as defined under the Act. Whereas only the Court-martial can try for both Military and Civil offences, the Civil courts can try a person subject to service law for Civil offences only. The failure of the military to arraign a person subject to service law for a Civil offence will not prevent the Attorney-General of a State or the Attorney-General of the Federation from arraigning the person before the Civil court. Does a person subject to service law have a right of election not to be tried in a civil court for a civil offence? To what extent is the right of election to be tried for an offence a condition precedent to the jurisdiction of the Civil court to try persons subject to service law? Must allegations of commission of an offence be reported to the Commanding Officer before a Civil court can assume jurisdiction in a case against a military offender? This article x-rayed the jurisdiction of Court-martial and Civil courts to try persons subject to service law and the recent case of Brig. Gen. Jafaru Mohammed v EFCC & Ano. which held that a serving military officer cannot be invited, interviewed, interrogated, arrested, tried under general criminal laws of Nigeria, unless he elects the forum for trial. The authors posit that this decision was arrived at per incuriam as it fails to recognise the concurrent jurisdiction of the Court-Martial and the Civil courts to try persons subject to service law for civil offences as provided in the Act.

They conclude:

It is beyond argument that a person subject to service law may be tried by a Court Martial and a Civil Court for commission of a civil offence. A civil court lacks jurisdiction to try a person subject to service law for a Military offence created by the Armed Forces Act. Where the person subject to service law is tried first by a civil court for a civil offence, and is convicted or acquitted, he cannot again be tried by a Court Martial pursuant to section 36 (9) of the Constitution. The condition that a commanding officer under section 117 of the AFA must afford an opportunity for election to a person subject to service law to elect whether to be tried summarily by the commanding officer or court- martial does not extend to trial by a civil court. There is no such duty upon a judge. The condition precedent for the trial and or investigation for a judicial officer as established in Nganjiwa v Federal Republic of Nigeria does not apply to the investigation and trial of a person subject to service law. The EFCC by virtue of sections 6 and 7 of the EFCC Act does not require the consent, permission or does not need to notify a commanding officer under which a person subject to service law is serving before it commences the investigation of such a person. It was therefore wrong for the Justices of the Court of Appeal to have arrived at the conclusion that section 123 of the AFA must be complied with by the EFCC. Consequently, the researchers recommend that the court should seize any opportunity in future where issues such as discussed herein arise to restate the  correct position of the law that it is not a condition precedent that before a person subject to service law can be tried by the civil court that such a person must be put to his election and that section 123 of the AFA does not apply to law enforcement officers or prosecutorial agencies.

General officer accountability

BBC.com reports that: A senior Army officer who drunkenly touched and tried to kiss a woman in a karaoke bar has received a six-month suspended prison sentence.

Now ex-Major General James Roddis was part of an overseas delegation and had been drinking for several hours when he started touching the hair of the woman before kissing her on the lips.

Roddis, 53, was required to resign from the Army following the subsequent misconduct investigation and admitted disgraceful conduct of an indecent kind at a hearing in July.

Suspending the prison sentence for two years, the military board at a court martial in Bulford, Wiltshire, also ordered him to 30 days of rehabilitation, 150 hours unpaid work and to pay his victim £2,500 compensation.

Perhaps our British colleagues can advise on whether HRH will seek to "recall" the DSO and MBE?

In the U.S. a court-martial cannot impose a sentence of "rehabilitation," although some might argue that a sentence to "Extra Duty" might be similar or hours of "unpaid work." A U.S. court-martial impose restitution and cannot direct a suspended sentence.

An accused cannot be "required to resign." He can offer a resignation in lieu of court-martial which results in a discharge Under Other Than Honorable Conditions--but the charges are dismissed. Or the accused can take his chances on not being "Dismissed," a punitive discharge, which for officers is generally considered the equivalent of an enlisted person's Dishonorable Discharge.

You might also read or read Rachel VanLandingham's piece about general officers facing court-martial for sex-related offenses. Over the last few years, the USAF and Army have prosecuted general officers at court-martial for sex-related offenses.

South Sudan general court-martial

The UN has posted this video report on a court-martial in South Sudan. "The UN Mission in South Sudan (UNMISS) supported the deployment of a General Court Martial in Maridi, Western Equatoria, to promote justice for crimes committed by military officers serving with the South Sudan People’s Defense Forces."

Military trial for Pakistani ex-P.M.?

Former Pakistani prime minister Imran Khan has sued in the High Court of Islamabad to block his possible military trial. Details here. The full Supreme Court still hasn't been able to bite the bullet on whether civilians can be tried by military court absent a change in the Constitution. This is a moment of truth for Pakistan.

Human rights jurisprudence astrongly disfavors the trial of civilians by military courts.

Comparing notes on Chinese and Peruvian military justice

A Peruvian government press release advises (Google translation):

The exchange and sustained dialogue represent a milestone in bilateral relations and the continuous improvement of the military justice systems in both countries.

With the aim of generating institutional bonds of friendship, the First Bilateral Meeting between the Military Justices of Peru and China was held at the headquarters of the Military Police Court of Peru. This meeting marks a significant step in the consolidation of cooperative relations and the exchange of knowledge between both countries in the military legal field.

The delegation from the People's Liberation Army Military Court of China, headed by Brigadier General XIAO Mengkui, Vice President of the People's Liberation Army Military Court of China, was composed of Senior Colonel HU Minghua, Head of the Court Case Presentation Chamber of the People's Liberation Army Military Court of China; Senior Colonel LIU Xiaoming, President of the Military Court of the PLA Northern Theater Command; Senior Colonel QI Zhengrong, President of the Shanghai Military Court; Senior Colonel JIANG Song, Vice President of the Deputy General Military Court of the PLA; Major SU Sihan, Interpreter of the delegation; Senior Colonel Leng Bingkun, Chinese Defense Attaché in Peru; and Major LIN Lu, Deputy of the Military Attaché Office.

The day began with a flag-raising ceremony with the participation of all FMP personnel, during which the national anthems of Peru and China were sung to the strains of the Peruvian Air Force band, followed by a military welcome in honor of the Asian delegation.

The Chinese delegation then had the opportunity to tour the facilities of the Military Police Court, including the 8th Floor Presidential Hall; the Supreme Court Hearing Room, the Center for Advanced Studies in Military Justice, the library and finally the office where criminal record certificates are issued. They also visited the Military Police Higher Court of the Center and the Mariano Melgar building, headquarters of the Military Police Higher Prosecutor's Office of the Center.

At the bilateral working table, in which the supreme magistrates of the FMP participated, crucial issues were addressed regarding the current situation of military justice in both countries. General PNP Maribel Acosta Guillén, Supreme Member of the Military Police Jurisdiction, presented the autonomous and independent model of military police justice in Peru, highlighting its focus on the application of the new adversarial accusatory criminal process and the prevention, investigation and punishment of crimes of function committed by military and police officers on active duty.

In turn, Brigadier General XIAO Mengkui expressed his gratitude for the knowledge shared and offered a detailed overview of the operation, organization and structure of military justice in China, as well as the application of its military regulations at three jurisdictional levels.

For his part, the President of the Military Police Court, Major General FAP (R) Arturo Giles Ferrer, in his closing remarks, underlined the evolution of the Military Police Court and its adaptation to modern times. He highlighted the importance of digitalisation and the implementation of new technological tools for a more effective and transparent administration of justice. In his message, General Giles Ferrer also announced the upcoming VII International Meeting on Military Justice and Operational Law, which will be held in Lima from 20 to 22 November this year.

This bilateral meeting not only reaffirms the good relations between the military justice organs of Peru and China, but also establishes a solid foundation for future collaborations. Through the exchange of knowledge and institutional cooperation, both countries will advance in the construction of more timely, efficient and transparent military justice systems, benefiting the Armed Forces and National Police of each nation.

Sex and Consent in the Military

Global Military Justice Reform contributor Prof. Rachel E. VanLandingham has this timely column in Lawfare. Excerpt:

So while most of the interested public will likely focus on the fact that Maj. Gen. [Phillip] Stewart was found not guilty of sexually assaulting his subordinate officer, the fact that he was prosecuted is itself hugely significant as it reflects the sea change in military law regarding affirmative consent. Through this court-martial, in which an officer’s claims against her general officer boss were taken seriously, the Air Force seemingly demonstrated that it understands and supports the law’s affirmative consent standard and those it is designed to protect.

It’s about time to understand that the lack of a “no” does not mean “yes.” It’s also long past time that senior and junior leaders of U.S. Armed Forces behave in the professional, noncriminal manner that those they lead, and the nation, deserve—and that those who do not are held to account.

New Article: Enhancing Fairness and Compassion in Military Disciplinary Proceedings

In an article recently published by the Cardozo International & Comparative Law Review, Professor Rinat Kitai-Sangero, the Head of the Multidisciplinary Studies of the Zefat Academic College School of Law assesses the summary disciplinary proceedings of the Israel Defence Forces (IDF).[1] After comparing it with the US Summary Court-Martial (SCM) system and analyzing the reasoning behind inadequate procedural safeguards, the author recommends providing soldiers with legal representation when they are exposed to imprisonment. For the professor, at stake here is the soldiers’ emotional distress facing a potential custodial sentence and the hierarchical gap between them and the chain of command. This is not trivial, even more so considering the roughly 170,000 disciplinary proceedings held each year, resulting in the imprisonment of 16,000 soldiers annually (p. 385).

As a model to emulate, the author uses the integrative tribunal established in Israel in 2018 to deal with the cases of desertion. According to Professor Kitai-Sangero, the tribunal has a particular focus on identifying the causes of desertion to better rehabilitate and reintegrate individuals as functional service members rather than simply resorting to imprisonment. For the author, that model court should be extended to less serious offences, even to other national armed forces.

The article is divided in 6 parts. Part I (pp. 379-385) introduces the topic by using examples both in literature and history to summarize the traditional perceptions, tensions and main characteristics of the US military justice system, for which the legal literature is vast. To summarize those views, military disciplinary proceedings, a separate system dealing with unique type of offences, are an expeditious tool to assist commanders (and subject to their whims) in maintaining good order and discipline rather than upholding justice, due process, and adhering to the rule of law.

In Part II (pp. 385-396) the author describes the IDF summary disciplinary proceedings comparing them with the SCM in the US system. The article examines its procedural safeguards, focusing on the lack of rights to be legally represented and to be impartially heard, from an individual soldier’s standpoint. In doing so, the author first explains the evolution of the US system and the emergence, in 1950, of the Uniform Code of Military Justice (UCMJ) to address criticism about the lack of fairness during WWII. The different types of US disciplinary proceedings are then described, with a particular emphasis on SCMs. The central role played by military commanders in military justice is discussed, with the frailties in terms of professional skills that go along with it. The Israeli disciplinary proceedings are comparable but with even lower safeguards than their US counterpart, according to the author who described the weaknesses. Then, the perspective of the Supreme Court of Israel (SCI) on procedural fairness in military disciplinary trials is presented. More than four decades ago, the SCI viewed that rights to legal representation and to a fair and independent judge are not guaranteed in that system. Yet, in a more recent case, the ISC stressed that efficiency should not compromise justice.[2]

Part III (pp. 396-405) exposes the arguments justifying why, in military summary proceedings, the need for speed has precedence over fairness. The foundation is first stated: military justice’s primary objective is to maintain discipline. In doing so, it should be able to deal with breaches swiftly, in order to deter. Military justice also serves to enhance combat effectiveness in ensuring troops obedience to orders, in particular against their natural inclination to self-preservation in face of risk-life situations. Military justice also fosters military cohesion and trust amongst soldiers who live and work closely together. The author refers to a US Supreme Court decision were it was held, notably, that “the military operates as a distinct society separate from the civilian community.”[3] Military justice also serves as a way for commanders to exercise their authority over subordinates. They are held accountable for their subordinates’ actions. So it is legitimate to give commanders disciplinary jurisdiction over them. Commanders know their subordinates and can better assess their behavior in comparison with neutral judges. Such interaction may play in favor of the soldier, and promotes inclusivity as part of the unit. Indeed, an objective of military justice is to rehabilitate the individual as an effective soldier. In addition, military disciplinary proceedings deal with offences that have no civilian equivalent, their punishment powers are limited, and their results cannot create a criminal record. Therefore, the need for procedural safeguards is lower. Having the right to legal representation in that context would notably add complexity and delays. Not to mention the need for those proceedings to be portable anywhere the military forces are in the world, making legal representation unworkable in operational setting.

Part IV (pp. 406-416) exposes the counterarguments as to why procedural safeguards remain the priority during military disciplinary proceedings. The author wonders if giving precedence to military efficiency and discipline justify limiting a soldier's rights. In comparison with civilians, soldiers have more restrictions to their freedoms and their privacy, even more so if they are conscripts. Professor Kitai-Sangero is of the view that the requirement for soldiers to be ready to the ultimate sacrifice reduces them to tools for larger organizational purposes, hence removing their intrinsic value as human beings. The author purports that when soldiers serve, the state has a duty to protect them from wrongful convictions and unfair punishments, lest it forfeit its right to demand their service.

The concept of a separate military community cannot justify in itself a completely different approach. For example, police officers share many characteristics with military life. Reservists are part of the civilian society. For restricting soldiers’ rights, a logical and justifiable reason is needed.[4]

Another argument for protecting soldiers’ rights is that commanders’ influence could become the rule under which the process is governed, while commanders are themselves subject to biases and external influence, and play both roles as judge and prosecutor. That’s why judicial impartiality is key to due process: it ensures objectivity, without partiality, favour or affection.

The right to legal representation protects the integrity of the process and corrects the gap between the individual facing an organization. Soldiers do not have the skills to defend themselves in dealing with legal issues, nor do they have the skills to manage their stress in facing disciplinary proceedings. They need a military defence counsel at their side, the author writes. For those who argue that providing legal representation in any setting would be impractical, Professor Kitai-Sangero suggests the imprisonment should be restricted to emergency situations, commanders having only the power to impose short-term detention until trial. Having said that, military necessity in times of crisis cannot inherently justifies the sacrifice of one individual’s rights.

Besides, disciplinary proceedings are for minor offences. Yet individuals are exposed to imprisonment. This is a serious punishment that should prompt legal representation.[5] Even a short term in prison can have detrimental effects on someone’s mental health, in particular when it is the result of a wrongful conviction. Furthermore, it discourages soldiers’ to remain in the service. That’s why providing support for soldiers to properly assert their rights is justified. Professors Kitai-Sangero advocates for a better balance between the needs of the military and the soldiers’ rights, in compliance with the constitution. Any restriction on individual’s rights must be assessed through a proportionality test.

Ultimately, discipline and justice are not opposing concepts; it’s not a zero sum game. If the focus is on justice, discipline would necessarily flows from it, as it would foster confidence in military justice amongst the troops. Conversely, an organization perceived as unjust discourages people from joining or staying in it.

Part V (pp. 416-421) explores Israel's integrative military tribunal, focusing on desertion cases. Using a holistic approach, the tribunal aims to reintegrate deserters without imprisonment. In that process, the individual soldier’s suitability for reintegration is assessed by the military police. If considered suitable, the individual joins the integrative process, under judicial supervision, and return to unit. A commanding officer is tasked to accompany the soldier in the process. If needed, civilian welfare officials can be involved. By default, the process will take a year, during which follow-up hearings are conducted to monitor the progress and make adjustments, if required. Upon successful completion, soldiers are convicted of a lesser offence than desertion, which offence does not create a criminal record.

The author suggests extending this approach, focusing on rehabilitation and re-integration, to less serious offenses that may lead to imprisonment. According to the author, it promotes equitable practices in military justice, which can “foster a culture of growth and rehabilitation”. Professor Kitai-Sangero suggests this model could be applied to other national military disciplinary proceedings.

Lastly part VI (pp. 421-423) concludes that the officers’ judicial authority is excessive. Commanders’ power to impose imprisonment without minimal safeguards is not consistent with the Israeli constitution. In that sense, accused soldiers are no different from those facing ordinary criminal courts. For non-legally trained commanders, imposing imprisonment for specific military offences should not be possible unless the requirements for due process rights are fulfilled, the author argues. The right to be represented by a defence counsel should be given, unless there are exceptional and urgent circumstances. The model of the integrative tribunal, presided over by a military professional judge, which prioritizes reintegrating soldiers, strikes a more balanced approach between military disciplinary needs and fairness. It is a recognition that human capital is the armed forces’ most important resource. As it shows that there is no contradiction between justice, compassion, and discipline, it should serve as a model for other national armed forces.

Comment

Throughout Professor Kitai-Sangero’s article, one can feel a wholehearted desire to make things better. The concerns the author has for young soldiers’ well-being and mental health is a compelling argument. The author sees that no major reform is expected soon. There’s no impetus for affirming service persons’ rights. So as legal scholars usually do, the author sees the need to reassess and draws attention to a system that many are indifferent to mainly because they are unaware of its importance.

Like other authors[6], the article draws on US SCMs to show the weaknesses of the IDF disciplinary proceedings in in protecting individual rights. The US SCMs' evolution is key to understand the tensions in balancing fairness, individual rights, and discipline in military summary proceedings for minor offenses. Reforms in other military justice systems, for example in UK[7], New Zealand[8] and Canada[9], can enhance the comparative approach. A group of experts of the Commonwealth suggest the tensions could be resolved by providing the right to elect trial in a military court which provides access to the internationally recognised rights, or an unfettered appellate procedure to such a court.[10]

Finally, the author is right on point when she writes:

Moreover, the recognition that soldiers are fulfilling a mission for their country through their military service should give rise to a duty to evaluate soldiers in accordance with legal standards and afford them fair trial protections. As the state requires soldiers to make sacrifices, it also assumes the responsibility of safeguarding them against unjust convictions and disproportionate penalties. Otherwise, the state might lose its moral authority to require young people to serve in the army.[11]

Indeed we have a collective moral responsibility to strive for the best possible justice system for those who risk their lives defending our nations, even going beyond legal and constitutional requirements.[12] Failing to treat soldiers with professionalism and humanity may compromise their ability to uphold these same values in their interactions with others, particularly during military operations, thereby increasing the risk of unprofessional conduct.

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[1] Rinat Kitai-Sangero, "Enhancing Fairness and Compassion in Military Disciplinary Proceedings" (2024) 7:2 Cardozo Int'l & Comp L Rev 37 (HL).

[2] HCJ 266/05 Pilant v. Deputy Military Attorney, 59(4) PD 707, 712-13 (2005) (Israel) [cited by the author].

[3] Goldman v. Weinberger, 475 U.S. 503, 506-507 (1986).

[4] Id., 517 (Brennan, J., dissenting).

[5] Middendorf v. Henry, 425 U.S. 25, 59-60 (1976).

[6] Haslida Isamail, Mohamad Rizal bin Abd Rahman, & Muhamad Sayuti Hassan, « Right to Legal Representation During Summary Proceedings Under the Military Justice System », (2024) 32 : 1 IIUMLJ 365-396.

[7] United Kingdom, Military Court Service, The Court Martial and The Summary Appeal Court Guide, vol. 1 “Guide to Procedure, v 9, (2023), <https://www.judiciary.uk/wp-content/uploads/2023/02/The-Court-Martial-and-Summary-Appeal-Court-Guidance--Volume-1--Guide-to-Procedure.pdf>, p. 9, par. 7.1.

[8] New Zealand, Defence Forces (Te Ope Katua O Aotearoa), Annual Report on the Military Justice System 2021-2022, Defence Legal Services, 2022, p. 5, <https://www.nzdf.mil.nz/assets/Uploads/DocumentLibrary/Discipline-Report_2021-2022.pdf>.

[9] Lyne Casavant, Julia Nicol & Stéphanie Le Saux-Farmer, Legislative Summary of Bill C-77: An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, Publication No 42-1-C77‑E, (Ottawa: Library of Parliament, 2018 rev 2020), sections 2.10 to 2.12, <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C77E>.

[10] The Commonwealth, Commonwealth Military Justice Principles – The Stellenbosch Draft, University of Stellenbosch, South Africa, 2023, Principle n^o 10,

[11] Rinat Kitai-Sangero, supra, note 1, at 407.

[12] The Honourable Morris J. Fish, C.C., Q.C., Report of the Third Independent Review Authority to the Minister of National Defence, Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, 30 April 2021, at p. iii. <https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf>.