Tribute to the late Col (R) Fran Gilligan

LTG Joseph B. Berger III, The Judge Advocate General of the Army, has released the following tribute:

It is with deep sadness that we inform you of the passing of COL (Ret.) Francis "Fran" A. Gilligan of Arlington, VA. He passed away on July 6, 2024, at the age of 84 from pancreatic cancer. He was in his 67th year of federal service.

COL (Ret.) Gilligan enlisted in the New York National Guard as a 17-year-old in 1957, then commissioned through ROTC as an Infantry Second Lieutenant from Alfred University in 1961. COL (Ret.) Gilligan delayed his entry onto active duty to attend law school in law school, he was selected for the new Excess Leave Program, and received a Regular Army Commission on September 5, 1963. In addition to his law degree, he earned his Master of Law degree and Doctor of Juridical Science from George Washington University in 1970, and received a Master in Military Art and Science degree from the Command & General Staff College in 1978. He was also a graduate of the U.S. Army War College.

COL (Ret.) Gilligan served in the Army Judge Advocate General's Corps for 27 years and held numerous positions, to include trial counsel, defense counsel, appellate counsel, 101st Airborne Division Staff Judge Advocate, Deputy Commandant of TJAGLCS, Chief of Criminal Law for Department of the Army and Chairman of the Joint Service Committee, and the Army's Chief Trial Judge. After his prestigious military career, COL (Ret.) Gilligan served for 15 years as the Senior Legal Advisor at the Court of Appeals for the Armed Forces (CAAF). Most recently, he served as the Director of Training at the Office of Military Commissions for almost 18 years.

COL (Ret.) Gilligan was widely known throughout DoD as a military justice expert and a prolific author, having written 10 books, over 40 articles, and numerous Army publications on criminal law, evidence, and related topics. A lifelong educator, COL (Ret.) Gilligan taught law students, lawyers, and judges at numerous institutions, to include TJAGLCS, the Army War College, the Universities of Maryland and Virginia, Catholic University Law School, and George Washington University Law School.

COL (Ret.) Gilligan is survived by his beloved wife, Barbara, of 63 years; his two daughters, Cheryl, and her spouse, Phil Natsios, and Kelly, and her spouse BG (Ret.) Paul Bontrager; four grandchildren (and spouses); and seven great grandchildren. He will be buried at Arlington National Cemetery with full military honors at a future date. The family requests that memorial gifts go to the George Washington University School of Law as a final acknowledgment of COL (Ret.) Gilligan's lifelong commitment to service and education.

Please keep the Gilligan family in your thoughts during this most difficult time.

Fran was one of the leading scholars of American military justice of his generation. Among other achievements, he was co-author (with Col (R) Fredric I. Lederer) of LexisNexis's invaluable Court-Martial Procedure.

For your military justice library

Congratulations to GWU's Lisa M. Schenck on the publication of the 4th edition of West's Modern Military Justice: Cases and Materials. Details and a big excerpt can be found here.

USS Somers -- book review

Steven Pfaff has written this [paywalled] International Journal of Maritime History review of The Curse of the Somers: The Secret History behind the U.S. Navy’s Most Infamous Mutiny by James P. Delgado.

Can the Army quit racial disparities?

"The Jim Crow Army Must Have a Scapegoat," tells of Lieutenant Leon Gilbert's court-martial for refusing an order during the Korean War. The article provides the context of the time. While President Harry S Truman ordered the intergration of the services in 1948, Lieutenant Gilbert still belonged to a segregated unit. The quagmimre in Korea, with the occasional American retreat, resulted in African American Soldiers receiving a higher share of the blame for a lack of mettle.

Lieutenant Gilbert refused to follow orders to return to battle then received a quick court-martial. The all white panel sentenced him to death. Many contemporaries saw it as inordinate punishment. President Truman commuted the sentence. 

The article paints an interesting portrait of Lieutenant Gilbert, as it appears he made a similar decision in World War II, but received more compassion. So there's an element of mental health issues, and the difficult decisions people must make when they risk their own life. 

The article also calls to mind, obviously, America's disparate treatment of African Americans within the criminal justice system and how that carries over to our military. While things have gotten better in the sense of official acknowlegment of the problem, we're still not where we need to be.

Anyway, interesting article. Go read it!

Speed bump for reform in Chile

The Supreme Court of Chile has submitted its report on a bill to amend the Code of Military Justice, raising questions about the measure. Details here (use Google Translate). Excerpt:

For the plenary session of ministers, although the project is part of the efforts to restrict the jurisdiction of the military courts, the basis of the motion is incompatible with the purposes of supporting the exclusion of conscripts from the status of military personnel, as well as the establishment of a rule of jurisdiction based on this logic.

The Supreme Court notes that, given the above, the bill presents areas of concern that merit review, especially regarding the understanding of conscription as an eminently military quality, given the duties of obedience and discipline that assist conscripts and that are framed within the military legal system.

It also concludes that the motion presents systemic difficulties that render the proposal inconsistent, in the terms already elaborated above.

Military court appeals in Iraq

Following is the abstract for Methods of appealing judgments and decisions issued by military courts, by Dr. Baraa Munther Kamal and Yasser Raad Abdullah, both of Tikrit University, Iraq. The article appears in the Tikrit University Journal for Rights.

The conclusion of the pleading and the pronouncement  of  the  ruling  in  the  criminal  case  is  not  the  last stage that the case goes through, as this represents the end of the role  of  the  court  competent  to  hear  the  case  from  a  procedural standpoint,  and  the  beginning  of  a  new  stage  represented  by  the post-trial  stage,  in  which  the  appeal  against  the  ruling  issued  is one  of  the  important  matters  from  those  who  authorized  it.  The law  provides  the  right  to  appeal  before  a  higher  court  than  the court  that  issued  the  ruling,  and  the  wisdom  seems  clear  in opening the door to appeal against rulings in order to avoid errors that may mar the ruling, whether procedural or substantive errors. Appeal   is   also   an   important   guarantee   that   provides   higher judicial  oversight  over  the  courts  that  have  jurisdiction.  When considering  lawsuits,  the  appeal  represents  the  legal  treatment  of errors that may occur in the criminal judgment and cause harm to the  parties  in  the  relationship,  which  could  be  the  result  of  the court’s  error  in  following  the  proper  procedures,  or  failure  to estimate the value of the evidence on which the court relied.There  are  two  types  of  appeal  methods:  ordinary  methods  and extraordinary ones. The ordinary methods are represented in Iraqi law by one type, which is the objection to the absentia judgment, according   to   which   the   case   is   reconsidered   again,   and testimonies,  statements  or  experts  are  heard  and  the  procedures related  to  the  parties  to  the  criminal  case.  As  for  the  methods Extraordinary ones are the ones that cannot be used and appealed against criminal rulings and decisions except in special cases that are  mentioned  exclusively,  and  what  should  be  raised  regarding matters  related  to  the  law  and  its  application  only.  Also,  this method  should  not  be  resorted  to  if  there  is  room  for  reviewing rulings  through  ordinary  methods.  These  methods  are  cassation, correcting  the  discriminatory  decision,  and  retrial.  Penal  laws often  combine  ordinary  and  extraordinary  methods  of  appeal, including  the  Code  of  Criminal  Procedure  No.  (23)  of  1971 (amended).  As  for  the  Military  Code  of  Criminal  Procedure,  it stipulates  the  methods  of  appeal  in  Chapter  Six  of  it,  which  are cassation,  correcting  the  discriminatory  decision,  and  retrial.  It does not stipulate objection to the ruling in absentia as one of the methods  of  appeal,  but  rather  stipulates  it  in  Chapter  Five  under the name of trial in absentia.

Port Chicago

Port Chicago: 

Eighty years after explosions ripped through the Port Chicago naval facility in California, killing 320 sailors, Coast Guard personnel and civilians, the secretary of the Navy announced Wednesday the full exoneration of African American sailors who were charged in 1944 with mutiny and refusing orders to return to work in dangerous conditions loading ammunition.

Navy Secretary Carlos Del Toro said in an interview that the decision to exonerate the sailors came after a Navy investigation found legal errors made during the 1944 courts-martial trial of 258 Black sailors who had been subjected to threats of execution for refusing to return to work after the July 17, 1944, explosions.

Bastille Day

 le 14 juillet

Not beach reading

Changes to the Manual for Courts-Martial have been proposed. Our sister ship -- CAAFlog -- has a link. The Federal Register notice can be found here.

Irish law regarding sexual offenses

Gov.ie tells us that:

The Minister for Justice, Helen McEntee TD, and Minister of State at the Department, James Browne TD, have welcomed the passage through the Oireachtas of a Bill which strengthens the law on sexual offences and improves protections for victims of sexual offences and of human trafficking.

Of special note: "Ensure people subject to military law who commit specified sexual offences will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial[.]"

News from Oslo

The Norwegian Military Prosecution Service (Generaladvokaten) was abolished as of July 1, 2024, in a reform that was pending for more than a decade. The head of the Service – Sigrid Redse Johansen – now works in the civilian Prosecutor General’s Office (Riksadvokaten) while the military prosecutors (krigsadvokater) have been transferred to the Armed Forces to handle disciplinary matters.

Another account of the latest hearing in Islamabad

Dawn has this detailed account of Monday's proceedings in the Military Courts Case before the Supreme Court of Pakistan. It is shocking how long the court has taken with this matter, particularly since it involves so many people who are not only being held in jail but are under sentences of death. The court will take up the matter again on July 11. Will the justices finally get to the merits?

Will you be near Pittsburg, California?

19 July 2024, in Pittsburg, to be precise.

According to Wikipedia: The Port Chicago disaster was a deadly munitions explosion of the ship SS E. A. Bryan on July 17, 1944, at the Port Chicago Naval Magazine in Port Chicago, California, United States. Munitions being loaded onto a cargo vessel bound for the Pacific Theater of Operations detonated killing 320 sailors and civilians and injuring 390 others.

A month later, the unsafe conditions prompted hundreds of servicemen to refuse to load munitions, an act known as the Port Chicago Mutiny. Fifty men‍—‌called the "Port Chicago 50"‍—‌were convicted of mutiny and sentenced to 15 years of prison and hard labor, as well as a dishonorable discharge. Forty-seven of the 50 were released in January 1946; the remaining three served additional months in prison.

Now there is a stage play, 19 July 2024, in Pittsburg, California.

Join us in commemorating the 80th anniversary of Port Chicago Remembrance Day with the captivating theatrical performance of PORT CHICAGO 50.

 PORT CHICAGO 50 is a powerful and poignant play that brings to life the story of fifty African American sailors who stood up against racial injustice during World War II. Set against the backdrop of the Bay Area's Port Chicago Naval Magazine explosion of 1944, the play delves into the sailors' courageous refusal to return to illegally-hazardous working conditions under Jim Crow segregation, an act of defiance that led to their court-martial and ultimately helped spark the desegregation of the US Navy. Through compelling performances and evocative storytelling, PORT CHICAGO 50 sheds light on a pivotal moment in American history, celebrating the bravery and resilience of these unsung heroes.

The Houston Riot was a prior instance of racial issues facing the military.

The Houston race riot of 1917, also known as the Camp Logan Mutiny, was a mutiny and riot by 156 soldiers from the all-black 24th Infantry Regiment of the United States Army, taking place on August 23, 1917, in Houston, Texas. The incident occurred within a climate of overt hostility from members of the all-white Houston Police Department (HPD) against members of the local black community and black soldiers stationed at Camp Logan. Following an incident where police officers arrested and assaulted black soldiers, many of their comrades mutinied and marched to Houston, where they opened fire and killed eleven civilians (including minor, Freddie Winkler) and five policemen. Five soldiers were also killed.

In accordance with policies of the time, 118 soldiers were tried in three courts-martial. 110 were convicted, of whom 19 were executed and 63 were sentenced to life imprisonment. Gregg Andrews, author of Thyra J. Edwards: Black Activist in the Global Freedom Struggle, wrote that the riot "shook race relations in the city and created conditions that helped to spark a statewide surge of wartime racial activism".

In November 2023, the Army set aside all 110 convictions.

There is a movie: ‘The 24th’ Tells the Overlooked Story of a Texas Race Riot That Led to the Largest Murder Trial in U.S. Military History."

On 26 July 1948, President Truman issued Executive Order 9981, Desegregating the Military.

More recently, we have U.S. DoD Internal Review Team Report on Racial Disparities in the Investigative and Military Justice System. From the Strategic Context:

Yet almost 75 years later, the Services continue to struggle with racial disparities in the military.14 Racial disparities have been shown to have far-ranging impacts on military promotions and leadership assignment processing.15 The IRT’s review is focused on the racial disparities that continue to exist in DoD’s investigative and military justice systems.

The Military Trials Case resumes

The Supreme Court of Pakistan today resumed its consideration of the case challenging the trial of civilians by military courts. A summary of the day's proceedings before the seven-member bench can be found here.

The hearing will resume on July 11.

By the numbers

It's a quiet morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. What better time to run the numbers?

Posts, 7423

Comments, 1080

Hits, 1,843,032

Jurisdictions, 195

Town Halls, 26

Contributors, 26

Co-Editors, 2

Many thanks to all concerned.

Should Taiwan's military justice system be restored?

Here is an op-ed by a professor who thinks it should be. Excerpt:

The establishment and application of a country’s military strength hinges on the government’s national security strategy and war preparedness. The power of the military is determined by balance in war preparedness, capable soldiers and a sound court martial system.

Only when there is a military court system in place that operates properly during peacetime can military strength be maintained during wartime. If members of the armed forces desert, disobey orders or do anything that infringes on military discipline, the survival of the nation is jeopardized. This cannot be tolerated or the military’s morale and cohesion would be undermined and it would not be able to stand and fight.

If that is the case, what is the point of having a military at all?

At this critical time, with the Chinese People’s Liberation Army imposing military pressure in the Taiwan Strait, military personnel who are well-versed in the culture and military affairs surely know how to make proper arrangements regarding investigating, detaining and sentencing military offenders.

Maintenance of military discipline must be emphasized to cater to the needs of individual regiments.

The restoration of the court martial system must be considered, especially the restoration of military prosecutors.

"A republic, if you can keep it"

Happy Fourth of July

A positive change in Algeria?

Nadia Tahanout has written this article on Judicial jurisdiction in crimes endangering national security between military courts and ordinary courts, 4 J. Knowledge & Sci. Horizons No. 1 (2024). Abstract:

Military justice is specialized in examining all military crimes as defined by its laws, including those affecting national security, in addition to offenses stipulated by criminal law committed by civilians. This study aims to delineate the jurisdiction of military courts within the framework of these serious crimes, especially after the Algerian legislature changed its stance and amended the military judiciary law under law 18-14, revoking the third paragraph of article 25, which expanded the jurisdiction of military courts in trying civilians committing crimes endangering national security. Post-amendment, this jurisdiction is now within the purview of regular criminal courts, affirming the litigants' right to a fair trial.

Amnesty International report on Lebanon's military court

Sahar Mandour writes here about what it's like in Lebanon's military court. Excerpt:

Sahar Mandour is Amnesty International’s Researcher on Lebanon and has been attending a historic torture trial at the country’s Military Court examining the death in custody of Syrian refugee Bashar Abed Saud, following claims of torture at the hands of State Security Agency members. The fifth session and expected verdict is scheduled for 5 July. She’s determined to seek justice, truth and reparation for Bashar’s family. Here, she recounts her insights into a trial process dominated by the Military.

As I stood in front of the Military Court on 16 December 2022, I felt a mixture of bravery and fear. I felt brave, because I had made a formal request to the Military to attend this court session, and fearful, as I didn’t receive approval but decided to show up anyway and request it in person. Although court sessions are supposed to be open to the public, in practice, showing up without prior approval could be viewed as defiant and put me on their radar. . . .

By the fourth session, all the defendants had been released from detention, including the “angry officer” accused of carrying out the beating.

The judge informed the prosecution that Bashar’s family had dropped charges against the officers. There have been whispers that Bashar’s family had been intimidated into dropping the charges. Who could blame them?

As we await the verdict on 5 July, one thing is patently clear: this trial is not about justice for Bashar and his family, but more an internal disciplinary process for the military to protect and punish, differentiate between “honest mistakes” and shameful behaviour, and reaffirm that military discipline is above critique.

There is never any justification for torture. Suspected perpetrators of torture must be held accountable in independent and impartial proceedings that meet international fair trial standards. The Military Court does not meet these requirements and its jurisdiction over criminal cases, like the jurisdiction of any military court or commission, should always be limited to trials of military personnel for breaches of military discipline. For Lebanese authorities to be serious about eliminating torture in detention facilities, they must refer such cases to ordinary civilian courts, regardless of the accusations against victims of torture, whether terrorism, arm smuggling, drug use, or simple agitation in an interrogation room.

Retroactive promotions

The Trinidad & Tobago Defence Force has been ordered to afford retroactive promotion to two officers. Details here. The court's opinion is not yet available on the judiciary website. Excerpt from T&T Newsday:

Both officers are also to receive their accrued salaries and benefits and were also awarded vindicatory damages for the breach of their rights.

In both cases, the judge said the award of vindicatory damages was ordered to act as a deterrence. In Rudder.Fisher’s case, she added, “There must be some sense of outrage about the insensitive and laissez-faire approach the relevant authorities took in failing to treat the claimant’s complaint which he had been actively pursuing for years.

“Further, it is important that the court signals to the defendants that a breach of the claimant’s rights under sections 4(b) and (d)of the Constitution is significant and therefore it should serve to act as a deterrence from further breaches.”

She added, “In my opinion, the declarations which the claimant has sought are not sufficient to vindicate the clear breach of his constitutional rights as the defendants’ actions caused him to lose seniority without justification.

“I was satisfied that there was significant distress caused to the claimant in the instant case as his loss of seniority was significant.

NIMJ pop-up @ 12:30 p.m. today

CAAFlog, our sister affiliate at the National Institute of Military Justice, is hosting a pop-up discussion about the recent general court-martial of Major General Phillip A. Stewart of the U.S. Air Force. Details here. See you there.

Time: Jul 1, 2024 12:30 PM Eastern Time (US and Canada)

Zoom

https://villanova.zoom.us/j/7841656237?omn=99036743966

Meeting ID: 784 165 6237

For your bookshelf

The Naval Mutinies of 1798: The Irish Plot to Seize the Channel Fleet, by Philip MacDougall. Chapter 17 deals with the courts-martial. A review of the book would be most welcome.

Mexico restructures its military courts

Last Thursday's Official Gazette included a restructuring of Mexico's military courts. According to this account in La Jornada,

there will be a Military Court of Oral Trial, at least in each place where there is a military prison. ; Likewise, there will be the number of military control courts that are necessary for the administration of justice.

One of the military oral trial courts will be in Military Camp Number 1, and jurisdiction covers the personnel under the command of military regions 1, 6, 7, 8, 9 and 10; The military court corresponding to the Third Military Region, in Mazatlán, will have the power to hear cases that arise in regions 2, 3 and 11; The third court will be in La Mojonera, Jalisco, which covers matters related to files that were initiated against personnel assigned to regions 4, 5 and 12.

The full text of the Secretary of National Defense's order can be found here.

Join the Navy and . . . commit adultery -- er, belay my last!

CNO says the U.S. Navy won't prosecute stand-alone adultery -- to keep recruitment/retention numbers up. Is this the right decision for the wrong reason? [Postscript: silly us; DuffelBlog trades in satire. Think: Borowitz. Sorry, Admiral. H/T Cdr. (ret) P.D. Cave.]

On the other hand, the Indian Government has told the Supreme Court adultery cannot be decriminalized.

No more draft exemption for Ultra-Orthodox Israeli men

The Supreme Court of Israel has ruled, 9-0, that Ultra-Orthodox men may no longer be exempted from mandatory military service and that financial assistance must be withheld from religious schools that do not cooperate. Details here, from The New York Times. The decision in Movement for the Quality of Gov't in Israel v. Minister of Defence can be found here. (Use Google Translate.)

Death of Charles Gittens

Charles "Charlie" Gittens, a notable military law practitioner, has passed on, according to an obituary notice on his Facebook page. 

LtCol Charles W. Gittins, USMCR (Ret.), 67, of Lake Frederick, Virginia passed away peacefully on May 17, 2024, while under the compassionate care of the Hospice Unit at the Veterans' Administration Medical Facility in Martinsburg, WV. Known to his friends as "Charlie," he had been in failing health for the past few years. His beloved wife Melissa was at his bedside when he passed.

Charlie Gittins was born in Wilkes-Barre PA on October 26, 1956, to the late Charles E. and Rosemary Gittins, and raised in Mt. Laurel, NJ. He graduated from Lenape High School in 1974 and then attended the U.S. Naval Academy, graduating in the class of 1979 and taking his commission in the U.S. Marine Corps. After initial Marine infantry training at Quantico, he was assigned to flight school in Pensacola, where he earned the gold wings of a Naval Flight Officer. Thereafter he served as a Radar Intercept Officer in the Marine Corps' F-4S Phantom in tours of duty with two different Marine Corps fighter squadrons based in Beaufort, South Carolina.

His Marine career took a different turn when he applied for and was accepted to the Marine Corps' Funded Law Program. Graduating first in his class at the Catholic University of America's Law School, he became a Marine Corps Judge Advocate, in which billet he ably served his military clients. During Operations Desert Shield/Storm in 1990-91, he deployed to the theater of operations to provide counsel and investigative support regarding alleged violations of the rules of engagement. Upon his return to the United States, he was assigned to serve as the Advisor to the Secretary of Defense for POW/MIA Affairs.

Leaving active duty in 1992, he worked for two years with the noted law firm of Williams & Connolly in Washington, DC, after which he opened a solo practice of his own, concentrating on criminal defense in military justice matters. He successfully defended military clients in several high-profile cases. Officers of the Judge Advocates Corps in all services of the United States military knew of and respected him as a skilled practitioner of military law.

In 2012, and after reducing his caseload of military justice matters, Gittins took a position with local processing giant Valley Proteins, Inc., working as staff attorney for product security enforcement and other corporate matters. His failing health forced his retirement from Valley Proteins in 2023.

In his personal life, Gittins was an accomplished private pilot of single and twin-engine private aircraft. He held all relevant FAA licenses and certifications, including an instructor certification. He shared these skills with the community by serving as a pillar of the Winchester Squadron of the Civil Air Patrol. At the age of 50, he also became an avid skydiver, earned a D license and various USPA certifications, including AFF Instructor, Tandem Instructor, Safety and Training Advisor and Senior Rigger. He logged over 2500 jumps. He established, owned and operated Blue Ridge Skydiving Adventures, a weekend sky-diving business based at the New Market airport in the Shenandoah Valley.

Buoyantly self-confident, unceasingly can-do in attitude, tenaciously dedicated to his clients and unfailingly loyal to his friends, Gittins grabbed life and lived it to its fullest. His sense of humor and joie de vivre will be sorely missed by those who knew, admired, and loved him.

LtCol Gittins is survived by his wife Melissa and stepdaughter Kellen Strosnider, both of Lake Frederick, VA, and by brother William Gittins (Susan), niece Jackie and nephew Sean.

There will be a memorial service for LtCol Gittins at the United States Naval Academy Chapel at a time and date to be determined. All friends and former Naval Academy classmates are invited. A private interment in the Naval Academy's Columbarium will occur thereafter. Prior to his passing, LtCol Gittins asked that in lieu of flowers, contributions in memoriam be directed to the Tunnel to Towers Foundation, which he deemed to be a particularly worthy charitable cause.

Pardons from the White House

A Proclamation on Granting Pardon for Certain Violations of Article 125 Under the Uniform Code of Military Justice

    Our Nation has made tremendous progress in advancing the cause of equality for LGBTQI+ Americans, including in the military.  Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity.  Many of these patriotic Americans were subject to a court-martial.  While my Administration has taken meaningful action to remedy these problems, the impact of that historical injustice remains.  As Commander in Chief, I am committed to maintaining the finest fighting force in the world.  That means making sure that every member of our military feels safe and respected.

     Accordingly, acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to persons convicted of unaggravated offenses based on consensual, private conduct with persons age 18 and older under former Article 125 of the Uniform Code of Military Justice (UCMJ), as previously codified at 10 U.S.C. 925, as well as attempts, conspiracies, and solicitations to commit such acts under Articles 80, 81, and 82, UCMJ, 10 U.S.C. 880, 881, 882.  This proclamation applies to convictions during the period from Article 125’s effective date of May 31, 1951, through the December 26, 2013, enactment of section 1707 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66).

     The purpose of this proclamation is to pardon only offenses based on consensual, private conduct between individuals 18 and older that do not involve any aggravating factor, including:  

     (1)  conduct that would violate 10 U.S.C. 893a, prohibiting activities with military recruits or trainees by a person in a position of special trust;

     (2)  conduct that was committed with an individual who was coerced or, because of status, might not have felt able to refuse consent;

     (3)  conduct on the part of the applicant constituting fraternization under Article 134 of the UCMJ;

     (4)  conduct committed with the spouse of another military member; or

     (5)  any factors other than those listed above that were identified by the United States Court of Appeals for the Armed Forces in United States v. Marcum as being outside the scope of Lawrence v. Texas as applied in the military context, 60 M.J. 198, 207–08 (2004).

     The Military Departments (Army, Navy, or Air Force), or in the case of the Coast Guard, the Department of Homeland Security, in conjunction with the Department of Justice, shall provide information about and publicize application procedures for certificates of pardon.  An applicant for a certificate of pardon under this proclamation is to submit an application to the Military Department (Army, Navy, or Air Force) that conducted the court-martial or, in the case of a Coast Guard court-martial, to the Department of Homeland Security.  If the relevant Department determines that the applicant satisfies the criteria under this proclamation, following a review of relevant military justice records, the Department shall submit that determination to the Attorney General, acting through the Pardon Attorney, who shall then issue a certificate of pardon along with information on the process to apply for an upgrade of military discharge.  My Administration strongly encourages veterans who receive a certificate of pardon to apply for an upgrade of military discharge.  

     Although the pardon under this proclamation applies only to the convictions described above, there are other LGBTQI+ individuals who served our Nation and were convicted of other crimes because of their sexual orientation or gender identity.  It is the policy of my Administration to expeditiously consider and to make final pardon determinations with respect to such individuals.

     IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of June, in the year of our Lord two thousand twenty-four, and of the Independence of the United States of America the two hundred and forty-eighth.

                                                                               JOSEPH R. BIDEN JR.

A case in Paris

What happens when the Paris Criminal Court tries a military case? Here's an example, courtesy of RadioFrance.

Leading Ukrainian university announces online graduate-level certificate program in International Criminal Law

The Law Faculty of the National University of Kyiv-Mohyla Academy has announced an exciting online certificate program in International Criminal Law.

The language of instruction will be English. The program is specifically designed for international students, young researchers, and practitioners.

Details can be found here. A complete brochure is available here.

Please share this post with anyone who may be interested in enrolling in this program.

Military justice in Chile

Rachel Blair has written Military Justice in Chile: Exploring Its Ongoing Violation of the American Convention on Human Rights, Jackson Sch. J. Int'l Stud., Spring/Summer 2023, at 19. Abstract:

Between 1973 and 1990, Chile was ruled by Augusto Pinochet, a military dictator known for his persecution of leftists and political opponents. Although Chile transitioned to democracy, ratified the American Convention on Human Rights, and joined the Inter-American System for the protection of human rights (IAHRS) in 1990, Pinochet’s legacy of human rights abuse lingers. The Chilean military justice system exemplifies this through its ongoing jurisdiction over cases in which military personnel harmed civilians, which violates the Convention’s guarantee of access to competent courts and fair trials. This research fills a gap in the existing literature on this violation by exploring the following question: how do the combined structural weaknesses of the Chilean judiciary and IAHRS limit the Chilean military justice system’s compliance with the Convention? To address this question, I analyzed the foundational documents of the Chilean judiciary and IAHRS with a focus on how vague or inconsistent language in the articles that connect through the procedural interactions between the two institutions work together to create loopholes for the Chilean military justice system to exploit. This thesis argues that ambiguous and contradictory language in the articles of the Chilean and IAHRS documents involved in the referral of human rights petitions to the Inter-American Court limits compliance by jeopardizing the legitimacy of petitions against Chile for its military justice system’s inappropriate jurisdiction and by creating significant deterrents for those considering petitioning against Chile. Throughout the twentieth century, military dictatorships ruled several Latin American countries that have since ratified the Convention. This research could therefore illuminate tendencies central to understanding and rooting out dictatorial legacies in the region and inform more effective collaboration between the IAHRS and its Member States in addressing impunity for human rights abuse.

RF military court data

Mediazona has done an analysis of military prosecutions since 2022. According to this Novaya Gazeta Europe report, 10.025 military criminal cases since the onset of the Russo-Ukrainian War.

New Article: Right to Legal Representation During Summary Proceedings Under the Military Justice System

 

In an article recently published by the IIUM Law Journal on the Malaysian military justice system, three scholars of the Faculty of Law of the Universiti Kebangsaan Malaysia (National University of Malaysia), find that during summary proceedings, commanding officers have quasi-judicial powers over the individuals while those cannot be legally represented as of right.[1] They analyse the situation, in light of the Malaysian Federal Constitution where the right to legal representation and equality are enshrined, as well as through a comparative law approach, looking at other common law jurisdictions (mainly US). They also take into account international sources, such as the 2019 Yale Draft Principles for Military Summary Proceedings. The authors recommend a reform for service members to be able to choose court martial prior summary proceedings or seek appeal after. For the authors, allowing full legal representation at summary proceedings would defy its non-legalistic essence in maintaining discipline.

Here is a summary of authors’ analysis, main arguments, findings, and recommendations.

Proposed rule changes at CAAF

The U.S. Court of Appeals for the Armed Forces has issued a set of proposed changes to its Rules of Practice and Procedure. Links to the Federal Register notice and the text of the proposed changes (which are too lengthy to publish in Fed. Reg.) can be found here. Comments are due by July 8, 2024. If you comment, please upload a copy to Global Military Justice Reform using the comments function.

The 2025 (24th) edition of the unofficial Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces will reflect the changes the court ultimately adopts and any Rules Advisory Committee explanatory comments. If you hold a copy of this year's (23d) edition, which will be available shortly, you may want to retain it for historical references.

Supreme Court of Canada - Applications for leave to appeal dismissed

In an unsurprising development, this morning, on the 80th anniversary of D-Day, the Supreme Court of Canada (SCC) dismissed four applications for leave to appeal judgments from the Court Martial Appeal Court of Canada.  All four judgments concerned the independence of military judiciary, a topic that was the subject of the recent SCC judgment in R v Edwards, 2024 SCC 15.

Corporal (Ret’d) Ryan Wade Cookson v. His Majesty the King

Naval Cadet Remington v. His Majesty the King

Sergeant V.N.E. Turner v. His Majesty the King

Soldat Mohammad El Zein v. His Majesty the King

Secret Navy Chief's decision in Pakistan Navy capital cases

From this article in Dawn:

“The question before the court is as to how the interests of the state are to be balanced against the interests of an individual to his right to live as well as his right to due process guaranteed by Articles 9 and 10A of the Constitution.

“It appears to be the contention of the state is that given the opinion of the chief of naval staff that proceedings and reasoning for passing the death sentence cannot be shared with those against whom such death sentences have been passed, they have no further remedy under the law and the Constitution.

“The question therefore arises as to how the interests of the state in secrecy are to be balanced against the interests of a citizen to be informed of the reasons for which the state has decided to hang him and to provide him the relevant reasoning and material to be able to defend himself,” the order reads.

It directed that “given that the fundamental question of protection of right to life and due process is in question, the petitioners shall not be executed till the disposal of the petition.”

The order instructed the respondents to file the naval chief’s opinion within three weeks, along with the reasoning, about why he formed the opinion that sharing the proceedings about the petitioners would be detrimental to the state’s interests.

The accuseds' executions have been stayed.

H/T to Cdr. Phil Cave for the link.

Death of a recruit on a training march -- which court tries the case?

That is the question posed by this current Chilean case. Google Translate does a good job with this article. Stand by for further developments.

Alabama Code of Military Justice amended

Act No. 2024-329, recently signed into law, amends the Alabama Code of Military Justice. The states continue to go their own ways in military justice, departing frequently from the federal Uniform Code of Military Justice and from one another.

Links to other state codes can be found on the website of the National Institute of Military Justice.

Conscientious objection upheld in Kazakhstan

And the ruling came from two military courts. Details here from JW.org, the Jehovah's Witnesses site.

"This is the first time a court in Kazakhstan or any Central Asian country has recognized unequivocally the right to refuse military service based on one’s religious beliefs. Brother Lev Gladyshev, a spokesman for Jehovah’s Witnesses in Kazakhstan, states: “We are grateful that the courts clearly recognized Daniil’s legal right to conscientious objection. This judgment sets a significant precedent for upholding and protecting fundamental human rights in Kazakhstan and Central Asia.”—1 Timothy 2:1, 2."

Civilian convicted of treason by Russian military court

Current Time, from RFE/RL, reports:

"A military court has sentenced a resident of the western Russian region of Chelyabinsk to 13 years in a maximum-security prison and fined him 200,000 rubles ($2,245) on a charge of high treason for calling on those mobilized to the military to surrender to Ukrainian forces. Investigators said the calls, posted on social media, had been made on instructions from "a representative of a foreign state." The man, whose name was not made public, was also charged with justifying terrorism for allegedly posting a comment on a social network in which he approved of the explosion on the Crimean Bridge that occurred in October 2022."

GW Law hosts Air Force CCA hearing

The U.S. Air Force Court of Criminal Appeals recently held a hearing at The George Washington University Law School. Details here. "Military criminal appellate courts have held annual oral argument hearings at GW Law as part of their public outreach programs since 2009, including the Army Court of Criminal Appeals in 2022, 2019, and 2016, as well as the Navy-Marine Corps Court of Criminal Appeals in 2023, 2018 and 2017." (GWU Law Photo)

Will Bangladesh court-martial its retired Chief of Army Staff

It's a possibility, according to this article, which reports that retirees are subject to trial by court-martial.

Conference on military justice in Rome

The Italian Senate has hosted a conference on problems and issues facing the country's military justice system. A summary can found here. "Among the topics covered, particular attention was drawn to the problems concerning the irrational division of jurisdiction between ordinary and military justice, often not responsive to the needs of the Armed Forces also in light of some decisions of the Court of Cassation highlighted by President [Filippo] Verrone, such as the problem of international military crimes addressed by the Military Attorney General [Marco] De Paolis."

Is Chile about to undo advances made over the past two decades in military justice?

In 2005, in the case Palamara Iribarne v. Chile, the Inter-American Court of Human Rights criticized Chilean military Courts for being:

". . . made up of active-duty military members who are hierarchically subordinate to higher-ranked officers through the chain of command, that their designation does not depend on their professional skills and qualifications to exercise judicial functions, that they do not have sufficient guarantees that they will not be removed, and that they have not received the legal education required to sit as judges or serve as prosecutors. All this implies that said courts lack independence and impartiality." (Inter-American Court of Human Rights, Case of Palamara-Iribarne v. Chile, Judgment of November 22, 2005,  (Merits, Reparations, and Costs para.155). 

In 2010, President Sebastian Pinera, stated at the moment of sending the draft law which would modify the competence of military tribunals in Chile that[with this change we guarantee due process, equality before the law and the full compliance of international treaties.  Six years later, in 2016, the government of President Michelle Bachelet, following the path forged by her predecessor, incorporated a new modification, expressly establishing that no civilian victim or accused would be subject to military justice.

In recent weeks within the context of creating "general norms for the use of force for the personnel of the forces or order and public security and for the armed forces," a group of deputies in Congress's lower house attempted to incorporate language that states that in four specific circumstances (constitutional states of emergency, protection of border zones, protection of electoral and plebiscite actions and protection of critical infrastructure) crimes committed by members of the military in the exercise of their functions (Armed Forces and Carabineros in Chile)  will be heard by military tribunals, including when the victim is a civilian.

This language was declared inadmissible by the lower house of Congress, but led to the scenario in which a group of Senators have announced that they will intend to present this language again, but this time in the Senate.

Since this is considered a great step backwards for Chile it is hoped that rationality will prevail in the Senate when this bill comes up.

A case of the slows

It took over eight years for the courts of Nigeria to determine that a 2015 general court-martial was invalid because one of the waiting members who voted had not heard the evidence. The decision of the Court of Appeal in Oghaekor v. Nigerian Army, (2023) LPELR-60573(CA), can be found here.