Sunday, March 3, 2024

A bad case of the slows

President Abraham Lincoln complained about General George B. McClellan having "a bad case of the slows." How about the Court of Appeal of Kenya, which has taken over eight years to overturn a High Court decision that had acquitted 25 members of the Kenya Navy on desertion charges. The case is Republic v. Pepela, [2024] KECA 204 (KLR) (Mar. 1, 2024). The Court of Appeal faulted the High Court for deciding the cases en bloc rather than individually, which seems a reasonable position -- although not one that should have required so long to arrive at.

For earlier coverage of the government's appeal, click here.

Friday, March 1, 2024

Op-ed: "Duty to assist the Cause of Justice, not just the Client"

The following op-ed authored by GMJR editors Maj Navdeep Singh and Dr Pascal Levesque appeared at www.LiveLaw.in

Duty to assist the Cause of Justice, not just the Client

Navdeep Singh & Pascal Levesque

The two of us came across some interesting comments on social media while discussing the recent (and very pertinent) observations of the Chief Justice of India during the Commonwealth Attorneys and Solicitors General Conference (CASGC), 2024, to the effect that law officers of the State must not just function as representatives of the government but also as officers of the court.

While this aspect of litigation might sound trite to true-blue constitutionalists, especially from functional democracies, it remains hazy to the public at large and even for many officers of the government, all across the world, who see litigation as nothing but an extremely adversarial concept and expect the establishment’s law officers only to defend the State at all costs.

But indeed, the duty of a lawyer is to the cause of justice more than her client. The obligation is to assist the court in arriving at a just decision, rather than just sharply singing the tune of the party being represented. Though this applies both to lawyers representing private parties as well as instrumentalities of the State, it assumes greater importance in case of the latter since the government is supposed to be a faceless and nameless entity in perpetuity, irrespective of the political party in power, which should be more concerned with justice, rather than a ‘win’ within the contours of a courtroom.

It is in this context that Justice Robert H Jackson of the Supreme Court of the United States, who also happened to be a former Attorney General, speaking at his famous 1940 address to the United States Attorneys, underscored that the spirit of fair-paly and decency should animate the federal counsel, adding that a lawyer who risks his name for fair-dealing to build up statistics of success has a “perverted sense of practical values, as well as a defect of character.” He also called upon government lawyers to temper their zeal with human kindness. But the golden words in that lecture shall always remain these-

“Although the government technically loses its case, it has really won if justice has been done.”

This spirit of fairness expected of a counsel is not uncommon in common-law legal systems- both on the civil as well as criminal side. In India, it was captured in beautiful words in Ram Ranjan Roy vs Emperor AIR 1915 Cal 545 by the Calcutta High Court. Later, in Ghirrao vs Emperor AIR 1933 Oudh 265, the Oudh Chief Court outlined the responsibility of a prosecutor by stating- “his duty as a public prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence in possession of the prosecution, whether it be in favour of or against the accused and to leave it to the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged.”

Again, in the context of prosecutors, the Supreme Court of India noted in Shakila Abdul Gafar Khan vs Vasant Raghunath Dhoble 2003 (7) SCC 749 that “it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.”

On the overall fairness expected in litigation by the government, in the case of Urban Improvement Trust, Bikaner vs Mohan Lal 2010 (1) SCC 512, the Supreme Court of India observed that governments and statutory authorities must not raise frivolous and unjust objections or act in a callous or highhanded manner, and must rather act as model or ideal litigants. Citing earlier judgments, the Supreme Court again emphasized that the government must not try to win a case against its own citizens by hook or by crook or to score a technical point or overreach a weaker party

In Canada, in the case of Boucher vs The Queen [1955] SCR 16, where the prosecutor used inflammatory language in his address to the jury, the Supreme Court of Canada stated that the prosecutor’s duty “should be done firmly and pressed to its legitimate strength but it must also be done fairly,” adding that it “excludes any notion 'of winning or losing’, rather a matter of public duty” and “in civil life there can be none charged with greater personal responsibility, it is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

Of course, as far as the duty of prosecutors is concerned, the guidelines adopted at the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990 (Havana Statement) speak of impartial functioning of prosecutors and their duty to act with objectivity, irrespective of whether the position taken is to the advantage or disadvantage of the suspect. These also provide that prosecutors shall not initiate or continue prosecution when an impartial investigation shows the charge to be unfounded.

But even more than the counsel, the sentiment of assistance to the cause of justice is required to be ingrained in government officers dealing with litigation, some of whom view litigants as rivals of the State, and this includes trivial service, employment or pension related matters. By experience, one of us (Navdeep Singh), can say that the prevalence of this attitude is alarmingly high in litigation related to the defence services wherein not only certain officers avoid briefing their own counsel about the true position of law to assist the court in dispensing justice, but also attach too much prestige by getting overinvolved in matters and pressurising the system to ‘win’ cases. Unaware of how the litigation milieu works, they even express an uncomfortable surprise in regular happenings in courts such as two opposite counsel sharing healthy and hearty relations or informal chitchat over coffee.  This attitude had, in fact, prompted the then Defence Minister of India, Mr Manohar Parrikar, to appreciably pass official instructions in 2018 warning officers to take note of the guiding principles that ‘litigation be viewed in an impersonal, non-adversarial and dispassionate manner and should not be made a prestige-issue or a win/loss situation.”

Lawyers serving the State, not only prosecutors but also those rendering legal advice to ministries and public bodies, have a general duty to ensure that the affairs of the State are administered in accordance with the law, which includes the principle of moderation in prosecutions. By doing so, it contributes not only to the fairness in judicial proceedings or trials, but in mitigating them in the first place. It might not be as glamorous as a ‘win’ in a court in the short-term, but is certainly more robust, long-lasting and precious in upholding the Rule of Law and the duty towards the profession and the society, besides reducing the burden of litigation on the State, the exchequer, and ultimately the taxpayer. 

---

Navdeep Singh

Navdeep Singh is a practising lawyer at the Punjab & Haryana High Court, founder President of the Armed Forces Tribunal Bar Association and a former member of the Committee of Experts constituted by the Government of India to reduce litigation in the Defence Ministry and reform the system of Redressal of Grievances. He is also a Member of the International Society for Military Law and the Law of War, Brussels, International Fellow at the National Institute of Military Justice, Washington DC, and Member of the Advisory Committee on Military Justice of the Commonwealth Secretariat, London.

Dr Pascal Levesque

Dr Levesque has acted as legal counsel for public-sector organizations, including as a military lawyer, public prosecutor and defence lawyer in Canada. He has been a teacher and a university ombudsperson. He currently works in the field of parliamentary ethics and public integrity. He is also a Member of the International Society for Military Law and the Law of War, Brussels, and International Fellow at the National Institute of Military Justice, Washington DC.

The opinions are their own.

Thursday, February 29, 2024

Presto agitato, Maestro

DoD Military Justice maven Dwight H. Sullivan's The Military Justice Decrescendo is must reading for anyone interested in a quick but rigorous summary of the contemporary U.S. system. In addition to charting the precipitous, continuing falloff in cases, the article usefully explains why the system cannot prudently be abandoned. 

Wednesday, February 28, 2024

USCAAF Annual Report for 2022-23

The annual report of the U.S. Court of Appeals for the Armed Forces for the year ending Sept. 30, 2023 can be found here.

Saturday, February 24, 2024

Transparency watch

When [Chief Fire Controlman (AEGIS) Bryce Steven] Pedicini will have his day in court remains unclear. The Navy’s public court docket shows a motions hearing took place on Wednesday of this week, but Naval Surface Forces officials declined to say what that hearing entailed when asked by Navy Times Thursday.

Command spokesman Cmdr. Arlo Abrahamson also declined to say if or when a trial date had been set.

He also declined to say why Pedicini was being tried in the military justice system.

Not much more in this report.

Why was this case tried in military court?

From Russia, with love of unusual court procedures, a sociologist and Marxist theorist had a five-year jail sentence imposed on appeal. The state appealed a military court's decision to fine Boris Kagarlitsky 600,000 rubles ($6,600ish). The military court found Mr. Kagarlitsky guilty of "justifying terrorism" for a video he produced on the 2022 Ukranian attack of the Crimean Bridge. Unhappy with the leniency the trial court showed this civilian, the prosecutors found a more receptive bench at the military court of appeals.   

While this is not the biggest news to come out of Russia recently, it is another entry in a never-ending series at this blog, "Why was this case tried in miltiary court?"

Friday, February 23, 2024

Military justice reform "urgently needed" in Ukraine

In this Kennan Institute blog post, Armenak Ohanesian, Head of Legal Studies at the Institute for Conflict Studies and Analysis of Russia (IKAR), Kyiv, argues that Ukraine's legal structure for the administration of justice in the armed forces needs a great deal of work. Excerpt:

Reforming Ukraine's military justice system can and should address both immediate and long-term needs. Enhancing the draft law to clearly articulate the functions and authority of the MJU, combined with essential Rules of Procedures and establishing credible oversight mechanisms and ethical standards, is crucial for maintaining integrity and public trust in the military justice system.

Ukraine might also seek international guidance in this regard from NATO-aligned countries to better align its military justice practices with international standards, implementing a model akin to the JAG Corps. This would not only ensure that Ukraine's military justice system was equipped to handle the complexities of modern military operations while upholding the highest standards of legal and ethical conduct, it would also reinforce Ukraine’s commitment to the rule of law and democratic values.

Reforming the military justice system in Ukraine is an urgent matter and a strategic imperative that demands immediate attention and action, of a piece with Ukraine's broader goals of democratic reform.

Thursday, February 22, 2024

Polygraphs and recruitment

A judge has dismissed a lawsuit brought by a man whose acceptance by the Trinidad & Tobago Defence Force was rescinded on the ground that he had twice failed a lie detector test when seeking employment with the police. Details can be found here.

Joint Panjab University-MC Law International Seminar (Hybrid Mode) with AI in the Military as one of the themes

The Panjab University, India and the Mississippi College School of Law, USA (with active assistance of GMJR Blog editor Prof Franklin Rosenblatt) are jointly holding an International Seminar titled “IMPACT OF ARTIFICIAL INTELLIGENCE ON CONSTITUTIONALISM AND RULE OF LAW” on 29th and 30th March, 2024.

Interestingly, there is a separate theme on AI and the Military in the seminar, encompassing, amongst others, AI & Military Justice, AI & Military Strategy, and AI & Autonomy.

Papers are being accepted now.

As a special gesture, the registration fee is waived for participants from outside India.

For more details, please scan the QR Code on the poster or email at the address provided on the same.

Wednesday, February 21, 2024

Been court-martialed? Don't use your military rank when you sue the government in Pakistan!

It was a lively scene at the Supreme Court of Pakistan the other day. The court was to hear a petition concerning allegations of vote-rigging in the country's recent election. The problem: the petitioner, who styled himself a retired Brigadier, wasn't in court, having left the country in a hurry for unstated reasons. Their Honors were displeased at that as well as the fact, pointed out by counsel for the respondents, that the petitioner had been convicted at a court-martial a dozen years earlier, a fact not disclosed in the petition. The petition was dismissed and the court socked him with damages of Rs500,000 -- stressing that court-martialed personnel should not refer to themselves by their former military ranks. Another lawyer who sought to address the court was threatened with referral to the bar for disciplinary action. Details are provided in this report.

Tuesday, February 20, 2024

Egad, bigamy!

A nice dilemma, right out of Gilbert & Sullivan's Trial by Jury* or a 2024 court-martial? The latter, methinks, judging by this account.

* "But I submit, m'lud, with all submission, To marry two at once is Burglaree! In the reign of James the Second, It was generally reckoned As a rather serious crime To marry two wives at a time. Oh, man of learning! And at this stage, it don't appear That we can settle it."

A lively hearing at the Supreme Court of India

"You speak of 'nari shakti' (woman power). Now show it here. You are in the deep end of the sea in this matter. You must come up with a policy which treats women fairly."

From yesterday's hearing before the Supreme Court of India in a case challenging the Indian Coast Guard's failure to afford permanent commissions to women. Details here.

Monday, February 19, 2024

New Zealand Court of Appeal: evidence required to justify limiting rights of military personnel

 A decision of the New Zealand Court of Appeal in Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17 delivered on February 16, 2024 serves as a salutary reminder that, if the Crown wishes to limit the constitutional rights of military personnel, they need to adduce evidence that those particular limits can be “demonstrably justified in a free and democratic society” (New Zealand Bill of Rights Act 1990 (NZBORA), s 5).

The requirement for members of the New Zealand Armed Forces to be vaccinated against COVID-19 has been inserted into the “individual readiness requirements” for military personnel by way of a Defence Force Order (DFO), which is a species of subordinate legislation that can be made by the Chief of Defence Force (CDF). The Court of Appeal heard that such requirements are enforced in a flexible and individualised manner by the NZDF. However, CDF took an additional step of imposing a stricter and more comprehensive policy with respect to the COVID-19 vaccination requirement, which pointed strongly towards the discharge of all non-compliant personnel. This represented a limit on the right to refuse medical treatment (NZBORA s 11) and also, the Court held, the right to freedom of religious belief (NZBORA s 15), because the Crown did not adduce evidence sufficient to satisfy the Court that a vaccine was available which did not involve the use of foetal material.

In the final analysis, the Court held that no or insufficient evidence had been put before it to prove that the stricter approach was necessary to achieve the rational objective of supporting the operational effectiveness of the Armed Forces. The Crown has the onus of proving that any limit on a right is justifiable. The appellants placed before the Court some evidence as to the comparative approach of the British armed forces, which suggested that a more flexible approach was sustainable, even in a much larger force. The Crown was unable to (or simply did not) discharge its onus in that context.

In the absence of evidence sufficient to justify the stricter approach, the Court held that it could not be justified for the purposes of NZBORA s 5 and was therefore unlawful. However, the Court provided a more limited remedy than was sought, requiring CDF to reconsider the relevant DFO in light of its judgment (while also protecting the status quo ante position of the applicants). The Court of Appeal sent a strong signal that its willingness to entertain such limits relating to COVID-19 vaccines is likely to be somewhat reduced in light of the lifting of virtually all restrictions by other arms of Government in the wake of the pandemic.

This is (at least) the second occasion within the last two years where the courts have found that they could not uphold a COVID-19 rights limitation relating to the Armed Forces, due to the presentation of no or inadequate evidence in support of the limit. The first was Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291. Readers will draw their own conclusions about the lessons to be learnt for defendants (ie Government), depending on the degree of deference which the relevant jurisdiction accords to military decision-making. For plaintiffs, this decision underscores the value of comparative analysis.

Disclaimer: The author was counsel in earlier challenges to COVID-19 vaccine mandates on behalf of both military and healthcare personnel. Those challenges, which took place during the height of the pandemic, were unsuccessful.

FY23 caseload

According to the TJAGS' annual reports, there were 1290 general, special and "short"-martials during FY23.



Down memory lane on Presidents' Day

Fort Jefferson
Bet you didn't know President Abraham Lincoln pardoned an ancestor of President Joe Biden. The Washington Post has the story here. Excerpt:

[Joseph] Holt’s report arrived in late August, and Lincoln made his decision, writing, “Pardon for unexecuted part of punishment. A. Lincoln. Sep. 1. 1864.” Shortly thereafter, the War Department issued Special Orders No. 296, freeing [Moses J.] Robinette from prison.

After more than a month on sweltering Dry Tortugas, Robinette returned to his family in Maryland, where he took up farming again. He lived into the 20th century, dying at his daughter’s home in 1903. While his brief obituary eulogized him as a “man of education and gentlemanly attainments,” no mention was made of his wartime court-martial or his fleeting connection to Abraham Lincoln.

Supreme Court of India directs reinstatement of recruits dismissed for submission of false certificates

The Supreme Court of India has directed the reinstatement of recruits who were dismissed from service on account of “fake relationship certificates” allegedly submitted by them, with all consequential benefits, in a case titled Ex-Recruit Babanna Machched vs Union of India and others, decided on 09.02.2024.

To fill up a large number of vacancies of enrolled personnel (enlisted ranks), priority was provided to certain categories of personnel which included sons and grandsons of servicemen and ex-servicemen; brothers and other near relatives of those killed in battle or who died in service; wards who were fully dependent upon servicemen or ex-servicemen; sportsmen of merit. It was said that priority should be open to the above categories and in case of more vacancies, personnel from open category based on merit may be taken.

With regard to the above news, the Appellants had applied and was subsequently selected and enrolled in the Army by the Maratha Light Infantry Regimental Centre. After 3 years of service, the Appellants were terminated from the Army along with others after a show cause notice was issued to several soldiers alleging that they had obtained enrolment in the Army either on the basis of the fake sportsperson certificates or false relationship certificates. The issue arose if the Appellants had submitted any relationship certificate during the time of enrolment in the Army. The Armed Forces Tribunal affirmed the discharge/dismissal order simply holding that the relationship certificates produced by the Appellants have been found to be fake upon verification. A direct appeal was then filed in Supreme Court wherein the Appellants produced the applications submitted for the purpose of enrolment/recruitment in which it was clearly stated that they had not claimed any special status and had stated themselves to be of general category. It was shown that no relationship certificate was ever produced and there was no mention of the same in the application form.

It has now been held by the Supreme Court that the Appellants were enrolled in the Army under open category and not under any special category and no relationship certificate was never produced or mentioned in the applications. It was ordered that the Appellants be reinstated in the Army with all consequential benefits. It was also observed by relying upon precedents that the government cannot change or shift its stand on the basis of which the Appellants were initially dismissed from service. The judgment of the Armed Forces Tribunal has been overturned by the Supreme Court of India. 

A detailed report on the case is available on SCC Online.

(With inputs from Ms Manini Kaur, office of Navdeep Singh, Advocate, Punjab & Haryana High Court, Chandigarh, India)

Sunday, February 18, 2024

Necrology: Judge Alan I. Herrman

Today's New York Times includes a long and interesting obituary for Alan I. Herman, who died last week at age 87. A native New Yorker, he served for many years in the U.S. Air Force, including five years teaching at the U.S. Air Force Academy and another five as a judge of the U.S. Air Force Court of Criminal Appeals. After retiring from the military, he became Clerk of Court at the District of Columbia Court of Appeals. He was also a mediator for the Superior Court of the District of Columbia. Judge Herman earned his bachelor's degree at NYU, his law degree at Syracuse, and his LL.M. at Yale. Unexpected fact: he was a member of the Alexandria, Va., Chapter of the Barbershop Harmony Society.

Further information can be found here.

Sincere condolences to the Herman family.

Thursday, February 15, 2024

The Lake Plav Executions, Dec. 25, 1915

For a fascinating and disturbing account of the trial and immediate execution of 21 Serbian soldiers during World War I, see Danilo Šarenac, Capital Punishment in the Serbian Army: The Case of Execution at Lake Plav in 1915, Currents of Hist. No. 3/23, at 40-61 (Nov. 15, 2023). The article, which is available through the Central and Eastern European Online Library, tells the shocking tale of how one Serbian commander, Col. (later General) Aleksandar K. Stojšić (1874-1937), saw to it that deserters were shot en masse after the briefest of trials and a threat to shoot every tenth soldier in the regiment. The author notes that the commander directed that all 21 accused be shot even though the court-martial had convicted only six. The commander even ordered that those sentenced to death be "slaughtered like cattle," rather than shot, but this was foiled when the regimental butcher failed to show up.

Under Serbia's 1901 Law on the Procedure of Military Courts in Criminal Offences, the court-martial would have consisted of four officers and one noncommissioned officer. Four votes were required for a death sentence, and the proceedings were to be completed within 24 hours or three days at most.

Col. (and judge and civil libertarian) Marvin H. Morse, 94, passes away

Let's take a moment to reflect on the legacy of Colonel Marvin Henry Morse, USAFR (Ret.), a former JAG, civil rights attorney, and administrative judge, who died in Florida on 11 February 2024 at 94. His life was one of service to his country and the rule of law.

Colonel Morse was born in Mount Vernon, New York in 1929. After graduating from Colgate University in 1949 and Yale Law School in 1952, he served on active duty as an Air Force judge advocate from 1952 to 1956. Thereafter, he transferred to the Air Force Reserve and engaged in private practice in Louisville, Kentucky, during which time he was part of a team of four that represented “Shuffling SamThompson on behalf of the Kentucky Civil Liberties Union before the Supreme Court of the United States.

Thompson was convicted of loitering and disorderly conduct by the Police Court of Louisville. The loitering charge resulted from what police officers described as Thompson’s dancing by himself in a cafe; the disorderly conviction was for arguing with those police officers about his arrest for loitering. At trial, Thompson testified that when arrested he was waiting for a bus to take him home and had money to pay for the bus. He entered a bus schedule into evidence, establishing that such a bus was due within 30 minutes. The cafe manager testified that Thompson frequently patronized the cafe and he had never objected to Sam’s presence. Despite Thompson’s claims that a conviction would deny him liberty and property without due process of law, the court convicted him of both offenses and fined him $10.

Despite not meeting the jurisdictional requirements for review by any other Kentucky court, the Supreme Court granted certiorari, most likely because vagrancy charges were often used against black men without justification. The Court’s opinion in Thompson v. City of Louisville was a complete victory for Thompson. Justice Black, speaking for a unanimous Court, found “no evidence whatever in the record to support these convictions. Just as ‘Conviction upon a charge not made would be sheer denial of due process,’ so is it a violation of due process to convict and punish a man without evidence of his guilt.” Although a victory for civil rights, the opinion had little effect on Thompson’s life; at the time it was handed down, he was serving a six-month prison term on four other misdemeanor charges. In addition, he had been arrested more than 50 times before his Supreme Court case.

Colonel Morse moved to Washington, DC, in 1962, where he worked for various federal agencies over the next 40 years, including the Department of the Navy, the Department of Defense, the General Services Administration, and the U.S. Postal Service. An expert in administrative law, he became an Administrative Law Judge in 1973 and served as a judge for the Federal Power Commission, the Postal Rate Commission, the Civil Aeronautics Board, the Small Business Administration, and the Department of Justice's Executive Office for Immigration Review. For several years, he managed the ALJ program for the Office of Personnel Management. In 1980, he was elected to the American Law Institute. He was also active for many years with the Federal Bar Association (serving as its President in 1995-96), as well as Democratic Party and Jewish organizations.

Sincere condolences to Col. Morse's family.

___

Thanks to Col. James A. Young, USAF (Ret) for this post.

Canada's Military Police Complaints Commission - recent news

Last week, Christopher Nardi published an article in the National Post, claiming that the Chair of the Military Police Complaints Commission (MPCC) released a "scathing decision" regarding military police policy relating to the investigation of "criminal offences of a sexual nature" and the transfer of such matters to the civil police. This report was the subject of a brief Global Military Justice Reform post earlier this week.

The National Post headline may have been a bit misleading, since the principal decision was to discontinue a Public Interest Investigation (PII), which the Chair had initiated only three weeks earlier. 

The National Post article does address the issue of whether or not the previous Minister of National Defence (MND), Anita Anand, issued direction that the current MND, Bill Blair, claims was not issued. However, as is often the case in our 'reduced attention span' world, the article only scratches the surface of the issues. 

For more commentary, see: 

Rory Fowler "MPCC Criticism of the Military Police" (15 February 2024) online: Law Office of Rory G Fowler, blog <http://roryfowlerlaw.com/mpcc-criticism-of-the-military-police/>

Wednesday, February 14, 2024

Senior officers of the Armed Forces of Liberia to face court-martial?

Reports reaching [The Inquirer Newspaper] say that some senior officers of the Armed Forces of Liberia will be subjected to the Uniformed Code of Military Justice (UCMJ) for their alleged back-stage involvement in the week-long protest that led to the resignation of the Minister of National Defense, Retired Maj. Gen. Prince C. Johnson
Mutiny is an open rebellion or disrespect against constituted authorities, especially by soldiers against their senior officers. . . . 
Minister Johnson’s resignation followed a nationwide protestation by some women who claimed to be wives of personnel of the Armed Forces of Liberia and operated under the banner ‘Army Wives Association of Liberia,’ who described him (Johnson) as a “dreadful, power-drunk, inhumane, and impassionate individual. . . . 
However, the Commander in Chief of the Armed Forces of Liberia assured that a thorough investigation will be carried out into the officers who led their wives into the streets to disrupt the celebration of the 67th Armed Forces Day and that a report should be made to him within a two weeks.

A case of the slows in Cameroon's military justice system

Human Rights Watch has posted this report on deficiencies in the slow-moving military trial arising from a massacre of civilians four years ago today. Excerpt:

In December 2020, a trial opened before a military court in Cameroon’s capital Yaoundé, marking an important step towards accountability for the massacre. However, the trial has dragged on and been marred by irregularities. Hearings have been postponed multiple times, victims’ families have minimal participation in the proceedings, and the court has refused to admit key evidence, including death certificates. Senior officers have not been arrested or charged.

During the last real hearing on the massacre on November 16, 2023, witnesses did speak, and some investigative reports were presented. But since then, the trial has been postponed three times, casting doubt on the ability of the military judicial system to deliver accountability for military abuse. It is scheduled to restart this week.

Tuesday, February 13, 2024

Villanova symposium issue

The Villanova Law Review has just published several articles on military justice in its latest issue. These are online and can be found here. The issue includes papers originally presented at a National Institute of Military Justice Symposium symposium held at Villanova Law School last year. Among the authors: Franklin D. Rosenblatt, Robert Leider, Dwight H. Sullivan, James A. Young, and the Editor. There's also a fireside chat with Judge M. Tia Johnson of the U.S. Court of Appeals for the Armed Forces.

Sunday, February 11, 2024

Tired of retirees?

Prof. Robert Leider's article Retiring Military Jurisdiction Over Military Retirees appears in the latest issue of the Villanova Law Review. It can be found here. His conclusion is that retired regulars should be subject to court-martial jurisdiction only when they commit offenses after having been recalled to active duty.

Who should investigate sex offenses in the Canadian Armed Forces?

Should the victim of a sex offense have to decide whether a case should be tried in the civilian courts rather than a court-martial? Following is an excerpt from the Feb. 6, 2024 decision of Tammy Tremblay, chair of the Military Police Complaints Commission of Canada, in In the Matter of a Complaint to the Military Police Complaints Commission (MPCC) into Allegations that the Canadian Forces Provost Marshal did not Implement a Ministerial Direction to Transfer the Investigation of Criminal Offences of a Sexual Nature to the Civilian Police:

18. I will highlight, however, that, Madame [Louise] Arbour, in her Report of the Independent External Comprehensive Review, explained at great length why, in her expert opinion, leaving to the victim the burden of deciding where a sexual assault would be investigated was not in the public interest. At page 93 of her report, she concluded as follows:

In my view, requiring the victim’s consent before deciding whether to investigate or prosecute a crime in the military or civilian justice system merely puts an unrealistic burden on the victim. It puts victims in an untenable position, requiring them to make a decision about which system is likely to work better for them, with little understanding of the factors at play. They may regret their decision down the road if the trial results in an acquittal and may be left forever wondering, “what if I had chosen the other system” In the end, I do not believe this serves any public interest.

19. It is difficult to reconcile the recommendations that Madame Arbour expertly stitched together following an in-depth and informed analysis of sexual misconduct in the Canadian Armed Forces, which she laid out in her comprehensive report, with the decision of the CFPM to not transfer every file regarding criminal offences of a sexual nature to civilian police. The wording of the CFPM’s policy is particularly concerning given the clear and public support of those recommendations by the Ministers of National Defence. It is puzzling that the CFPM references Madame Arbour’s recommendation in his policy, while implementing directions that contradict it.

20. Equally troubling is that the policy outlines what it calls a victim-centric, trauma-informed approach, without the corollary articulation of what this means in this context, or what considerations must be taken into account while applying that victim-centric, trauma-informed approach. Indeed, it is insufficient to simply state that such an approach must be taken. It must be accompanied by written considerations that outline why and how this approach is victim-centred and trauma-informed and paired with appropriate training on those approaches. In my view, in its current iteration, this policy does not meet the victim-centric, trauma-informed threshold, and in fact, just as Madame Arbour cautioned, puts an unfair burden on victims.

21. In the best interest of those victims of criminal offences of a sexual nature, I recommend that the CFPM review his policy with the view of implementing the full transfer of investigations regarding criminal offences of a sexual nature to civilian police, in the true spirit of a meaningful victim-centric, trauma-informed approach. This would go a long way towards enhancing trust in the military police.

The National Post has this news report. 

Where should this case be tried?

Two Spanish soldiers died in a training exercise. The Military Penal Code does not cover intentional homicide, the decedents' families contend. Should the case remain in the military justice system, where lesser charges might ensue, or should it be investigated by the civilian courts? Details here.

Tuesday, February 6, 2024

A possible encore for military courts in Taiwan

In 2013, Taiwan abolished its military courts. Now there's a suggestion that they need to be revived. The Taipei Times reports:

A Legislative Research Bureau report recommends that under special circumstances major misconduct or offenses by soldiers could be addressed by a provisional military court to expedite trials.

Military officials and experts have said that the restoration this year of one-year compulsory military service would likely lead to more incidents of fighting and insubordination, and without military tribunals, which were abolished in 2013, they would be unable to quickly address certain offenses.

The current civilian court system could take too long to address matters, which would negatively affect troop morale, therefore the government must finds ways to expedite the trial process for soldiers, the bureau’s report said.

Monday, February 5, 2024

R v Edmundson -- the last of the GOFO allegations

This morning, the trial of Vice Admiral (VAdm) Haydn Edmundson (retired) quietly resumed in an Ottawa courtroom, before Justice Matthew Webber, of the Ontario Court of Justice.  Trials before the Ontario Court of Justice (a provincial court) are conducted without juries. 

The charges, which date back to 1991, include one count of "sexual assault" and one count of "commits an indecent act".  The former charge cannot be tried by court martial, as it predates the amendment of s 70 of the National Defence Act (NDA) by Bill C-25, which was enacted in 1998.  The amendment of s 70 came into force 1 September 1999, and permitted allegations of sexual assault (and variations of that offence), arising within Canada, to be prosecuted before court martial under the Code of Service Discipline.  Now, a generation after that amendment was made - which was done at the urging of various "stakeholders" and public sentiment - similar stakeholders are insisting that the amendment be reversed.

VAdm Edmundson (ret'd) is the last of the General Officers/Flag Officers (GOFO) - at least those who were actually charged - to face trial.  Thus far, none of the GOFO accused of wrong-doing have been convicted.  There was only one finding of guilt: General Jon Vance (retired), a former Chief of the Defence Staff, pled guilty of "obstruct justice" before a civil court of criminal jurisdiction at the end of March 2022, and received a conditional discharge.  This resulted in a finding of guilt, but without a conviction or criminal record (provided that the offender successfully completes the probationary conditions for the discharge).

VAdm Edmundson, like most of the GOFO accused of wrong-doing, faces charges relating to allegations arising at a time long before he became a Flag Officer.  At the time of the allegations, he was a Lieutenant-Commander.  He has pled not guilty and is represented by one of Canada's pre-eminent criminal defence counsel, Brian Greenspan.

Saturday, February 3, 2024

Egypt expands military jurisdiction

Egypt is expanding the jurisdiction of military courts far beyond what human rights jurisprudence tolerates. According to this report:

The military judiciary is to be empowered to address crimes deemed to harm public food security with the authority to prosecute a range of market manipulation activities under new legislation passed by the House of Representatives this week.

Unlike in most military trials, however, those handed felony sentences on charges of “harm to vital facilities” will be able to appeal the decision.

The law also upholds the military’s law enforcement powers over any facility or utility defined as a public good.

*  *  *

The scope of what the law entails could also be widened, since it makes provision for the president, or anyone delegated by the president, to identify actions that may pose a threat to “the essential resources of the state and national security” in consultation with the National Defense Council.

Friday, February 2, 2024

Choking a superior is a Code of Service Discipline offence

On 31 January 2024, the Times Colonist newspaper in Victoria reported on a court martial in which a Leading Seaman (described as a Sailor, First Class) pled guilty to an offence under s 84 of the National Defence Act (NDA), "struck a superior", and was sentenced to 14 days detention at the Canadian Forces Service Prison and Detention Barracks (CFSPDB) and a reprimand.

While the full judgment in R v Thoo, Court Martial Docket 202322 is not yet available publicly, the Chief Military Judge website does provide some general information.   The article from the Times Colonist provides greater detail.

Wednesday, January 31, 2024

For your reading list

Dwight H. Sullivan, who knows a rattling good tale when he sees one, has written The First Uniformed Judge Advocate General of the Navy: A Distinguished Marine Felled by Mental Illness, about Col. William Butler Remey, USMC (1842-95). You can find it in the just issued 69 Naval L. Rev. 1 (2023).

Job posting, Military Justice Review Panel

General Attorney, Military Justice Review Panel, GS-15

The incumbent serves as legal counsel for the Military Justice Review Panel (MJRP), which includes the Chair and Members, Deputy Director, and Director of the Military Justice Support Group (MJSG), and is a legal authority on all matters arising with the organization. The position is within the MJSG, and includes supporting the high-visibility, high-priority work of the MJRP and other advisory entities requiring such support as determined by the General Counsel/Director, DLSA and at the discretion of the Director, MJSG.

The incumbent must be able to exercise significant initiative in accomplishing the position’s assigned missions. The incumbent conducts research concerning case law, statutes, regulations, policy documents, congressional documents, secondary sources, and data reports related to military and civilian criminal law and criminal investigations. This work includes comparative analyses of military, federal civilian, state, and foreign criminal justice and investigation systems in support of the MJRP. The incumbent ensures that the supported organizations comply with all applicable laws, rules, and procedures governing advisory committees and is responsible for ensuring the production of timely, high-quality written reports and correspondence. The incumbent performs detailed comparative legal analysis of military, federal, state, and other systems of justice, including comparable foreign systems. The incumbent organizes research, arranges hearings, site visits, interviews, data presentations, and briefings to support the organization and supported advisory panel.

The incumbent must be an active member in good standing of the bar of the highest court of a State, the District of Columbia, or a Territory, Commonwealth, or Possession of the United States.

The incumbent should be well-versed in military justice and must be fully committed to promoting and respecting equal employment opportunity and diversity in the workplace. The incumbent must have superior interpersonal skills.

The incumbent reports to the Staff Director, Military Justice Support Group, and, through the Deputy General Counsel for Personnel and Health Policy and the Principal Deputy General Counsel, to the General Counsel of the Department of Defense.

We are accepting resumes until February 15, 2024. To apply, please email resume to osd.pentagon.ogc.mbx.dodogcresumebank@mail.mil. The subject line should state “Resume File: [APPLICANT’S LAST NAME, FIRST NAME].” Please also reference this position in the body of your email.

Monday, January 29, 2024

Military justice legislation in Egypt

There's new legislation governing Egypt's military courts. Excerpt from this AhramOnline report:

The most prominent amendments include adding a level of jurisdiction, namely the Military Court for Appellate Crimes.

The levels of military courts now comprise the Supreme Military Court for Appeals, the Military Court for Appellate Crimes, the Military Court for Crimes, the Military Court for Appellate Misdemeanors, and the Military Court for Misdemeanors.

Their jurisdiction was specified in handling lawsuits and disputes brought to them according to the law. 

The president of the Military Judiciary Council was given the authority to organize the chambers of the Supreme Military Court for Appeals, and the director of military courts was given the authority to organize the chambers of the other military courts.

Chaos continues in Pakistan's military-courts case

Here we go again. An objection has been raised to the employment of private counsel to represent some of rthe respondents in Pakistan's military-courts case. And today, with the recusal of a judge who was to have sat on the bench hearing the inter-court appeal, the court is dissolved and the case is back to Square 1 (or maybe Square 5). A new bench has to be constituted.

Casey Stengel, call home.

Reaction to R v Vu, 2024 SCC 1 in Canadian news media

Last Friday, Sean Fine, the Globe & Mail "justice reporter", presented an article on the Supreme Court of Canada (SCC) judgment in R v Vu, 2024 SCC 1.  This was an appeal of the Minister of National Defence (represented by the Director of Military Prosecutions), as of right, from a judgment of the Court Martial Appeal Court of Canada (CMAC).  

This matter concerned a prosecution of alleged sexual assault before a court martial.  The accused was acquitted at trial, and the CMAC upheld that judgment.  The SCC further upheld the acquittal - which was the first time in nearly six years that the SCC handed down a judgment involving the prosecution of a sexual offence that was favourable to an accused.

In light of the content of the Globe & Mail article, perhaps more needs to be said.

Rory Fowler, "R v Vu – Redux" (29 January 2024), online: Blog, Law Office of Rory G Fowler <http://roryfowlerlaw.com/r-v-vu-redux/

Saturday, January 27, 2024

Swiss Air Force crash: air traffic controller appeals his conviction

 According to news media reports, an air traffic controller of Skyguide[i] appealed his conviction for negligent homicide[ii] to a military court of appeal. He was found guilty on January 9th by a military court for causing a military aircraft to crash, which caused the death of a pilot in training[iii]. The air traffic controller was sentenced to a conditional fine of 60 “daily rates” of 170 Swiss francs[iv]. A co-accused, the lead pilot who was training his younger trainee, was acquitted. The military auditor (prosecutor) is waiting for the written judgment to be released before deciding whether or not to appeal that acquittal[v].

The following is a summary of various Swiss news media articles.

A Tragic Event

On August 29, 2016, at 16h01 local time, in the canton of Bern, two F/A-18 Hornets take off from Meringen Air Base with a 15 second interval[vi]. An instructor is in the first aircraft while a 27-year-old pilot is in the second. They both participate in a training exercise – an air combat with a Tiger F-5[vii]. As visibility conditions are poor due to cloud cover, the two pilots are flying by instrument (or IFR). The second pilot tries to lock his radar on to his leader’s aircraft, to follow him but it does not work[viii]. He then contacts the air traffic controller who mistakenly instructs a 10,000 feet minimum altitude to him while the requirement was 15,000 feet[ix]. 58 seconds later, the F/A-18 crashes into the western flank of the Hinter-Tierberg mountain (Susten Pass region) - 11 meters below its ridge - killing instantly the young pilot and destroying completely his aircraft, including the black box[x]. Shortly after, when talking to the emergency center, the air traffic controller realizes his error. He tries to correct it by contacting his colleague based in Dübendorf (canton of Zurich) – who has just taken over - but it is already too late[xi].

Military Justice Proceedings

In an April 2020 interim report, Swiss military justice authorities indicated that the accident was due to two causes[xii]. First, the air traffic controller probably indicated too low an altitude to the pilot. In addition, the leader did not fully comply with the standard practices during take-off[xiii]. Eventually, on March 31, 2023, a military prosecutor charged both with negligent homicide, negligent disregard of service regulations, negligent obstruction of public traffic, and negligent misuse and waste of equipment[xiv].

Trial before the military tribunal, presided by Lieutenant-Colonel Markus Hofer, begins on January 4, 2024, in Muttenz (canton of Basel-Country)[xv]. The air traffic controller admitted he made a mistake, a “slip of the tongue” he supposed[xvi]. He added that as radar echoes of both aircrafts were touching, he “instinctively” issued them separate flight instructions, which had prevented a collision, according to him[xvii]. Defence counsel argued that every pilot must know that you cannot fly over a mountain at 10,000 feet, as a general rule. Ultimately, is for the pilot to avoid collision and not for air traffic control, he added[xviii].

Contrary to the air traffic controller, the lead pilot denied making any mistake. He notably stated his speed was not below prescribed directives for take-off procedures[xix]. Although he heard when the other plane radar stalled twice, he added he could not intervene, since he was not remotely controlling his trainee[xx]. Defence counsel argued that the lead pilot followed his flight profile and did not seriously deviate from it[xxi]. In response, the military prosecutor submitted that if the lead pilot had strictly followed rules during take-off, the younger pilot would not have contacted the air traffic controller to receive instructions[xxii].

In addition to a guilty finding for each individual, the military prosecutor asked the court to impose suspended sentences of one year for the air traffic controller and nine months for the lead pilot[xxiii].

After the military court found the air traffic controller guilty, it discontinued the remaining proceedings on other charges[xxiv].