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.

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/> 

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 9^th 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].

The vacancy crisis in the Spanish military justice system continues

 There are only eight women who work in the military justice field in Spain and only one of them, Col. Immaculada Benavente, was named in May 2021, the first woman to preside over a military tribunal.  She was named by the General Council of the Judiciary as "Auditor/President" of the military tribunal in Sevilla.  She is the daughter, granddaughter and greatgrandaughter of members of the military.

Col. Benavente, in a recording that is now circulating in military circles, called the judges of the Military Chamber of the Supreme Court an unprintable insult, because they overturned a judgment issued in March 2023 and substituted for it a new one, in which they increased a sergeant's punishment for up to six years in prison for negligent homicide.

The General Council of the Judiciary decided to convene service commissions on January 24, 2024 to remedy the vacancies in the judicial organs of the military, where approximately half the posts are vacant.  Of the 42 posts in the military justice system, 22 are vacant: in the Central Military Tribunal all 5 posts are vacant; in the Territorial Military Tribunals (courts of first instance for the 5 military districts in Spain) 9 are occupied and 17 are vacant.  Within these 5 military districts there are 18 investigating magistrates (Juzgados Togados Militares Territorial).  Of these 18 investigating magistrates there are two groups: of the 16 (Juzgados Togados Militares Territorial) and currently 11 posts are filled and 5 are vacant; and of the remaining 2 posts (Juzgados Togados Centrales), they are responsible for investigating activities at the Central Military Court and they are competent for the whole of Spain.  Both of these latter posts will be vacant on February 17, the date on which Col. Immaculada Benavente will move on to the reserves.

Business as usual in Uganda

A Ugandan court-martial has convicted two civilians of illegally possessing a firearm and of robbing and attempting to murder another civilian. The two were sentenced to 30 years in prison. Details here. Illegal possession of a firearm is the statutory basis for military jurisdiction. This is strongly disfavored under human rights jurisprudence and forbidden under the African Charter on Human and Peoples' Rights.

Charles Fried, former Solicitor General, dies at 88

Former Solicitor General Charles Fried died today at age 88. Professor Fried successfully argued Solorio v. United States, 483 U.S. 435 (1987), the first court-martial appeal heard by the Supreme Court on direct review. The Harvard Crimson's obituary can be found here.

Military justice in Mali

A brief description of the organization, composition and jurisdiction of Mali's military justice system by Mohamed Sogadogo can be found here en français.

An acquittal in Russia

The prosecution and the victim's representatives are considering an appeal from the acquittal of a Russian contract soldier on charges of having murdered another soldier in Ukraine in 2022. Details here. Excerpt:

[Zaindi] Takayev shot [Magomed] Shakhbanov in the head during a feast in the courtyard of an apartment building in Pervomaisk in June 2022, according to Russian investigators. This account was corroborated by two women who were present at the scene. However, Takayev claimed that he did not kill his "comrade-in-arms," suggesting that the slain man was actually killed by unknown persons “firing from the bushes nearby."

The acquittal may have been influenced by contradictions and inconsistencies in the case file, according to Kommersant.

According to this account, however, the prosecution has "indicated the possibility of unanimous jury acquittal under potential external pressure." The accused and the victim were members of different ethnic groups (Chechen and Dagestani, respectively).

Trial and execution of collaborators in post-war Belgium

A fascinating study by Dr. Dirk Luyten, Prof. Dr. Stanislas Horvat, Dr. Élise Rezsöhazy and Dr. Dmitri Roden explores the 242 cases in which the Belgian military justice system executed World War II collaborators. Four times as many people were put to death in these cases from 1944 to 1950 than in the preceding 110 years.

Background on the POSTWAREX study can be found here. Excerpt:

The project is funded by the BRAIN 2.0 programme (Belgian Research Action through Interdisciplinary Networks) of the Federal Science Policy Office (Belspo); its purpose is to analyse the use of the death penalty after the Second World War by the military justice system as a means of repression against collaboration. This repression was one of the most extensive campaigns of legal action in Belgian history. Its impact on Belgian society lasts to this day.

The repression policy led to the execution of 242 persons who were sentenced to death between 1944 and 1950. It is the most extensive execution operation in the judicial history of Belgium. These 242 executions form an exception in the history of the Belgian judiciary, as no more executions took place after this time.

Archives-based research

The executions led to intense debates in Belgian society. So far, only some aspects of the ‘group of 242’ have been studied based on available sources. The transfer of the military justice archives to the State Archives now opens the way for further research in the entire corpus and into new aspects, by associating different types of sources produced by the military courts.

Furthermore, it offers the opportunity to shed new light on the group itself by contextualising the individual profiles of the executed in comparison to the whole group of persons sentenced to death, and by analysing all steps of the decision-making process of the military justice system, from the first criminal investigations until the execution. 

The project draws on new research into the death penalty and executions by the military justice during the First World War, which was followed by a long period during which capital punishment was not applied.

For your reading list

Taylor & Francis Group has announced the publication of Sexual and Gender Difference in the British Navy, 1690-1900, edited by Seth Stein LeJacq. From the publisher's website:

This volume is a collection of a variety of important records that will give readers insight into key themes into the history of what its criminal code called “the unnatural and detestable sin of buggery”- sex between males - in the Royal Navy. The richest sources are transcripts of trials, including ones that erupted into public scandals and ones that provide a vivid window into the sexual cultures of the navy. The book also provides lists of important records in the naval archive and will serve as a guide to finding and interpreting them. This important volume, accompanied by extensive editorial commentary, opens up this history and archive to researchers, teachers, and students studying queer history, the history of gender and sexuality, and naval and maritime history.

The abstract for one chapter gives a sense of the subjects covered by the book:

In the 1830s, Lt. John Towne published his account of his “service afloat during the late war” against France, originally in installments in the United Service Journal. An 1836 book republished his memoir along with another officer’s journal; the following excerpt is taken from that publication. In his memoir, Towne relays his experience witnessing a sodomy execution – and a badly botched gallows pardon. He describes the hanging occurring when he was serving on HMS Pompee in the West Indies.

Another:

In 1811, a navy court heard a disturbing case in which a marine, James Parker, was accused of raping a ship’s boy named James Nowlan. Nowlan was only about 15 years of age. This was the standard charge naval courts considered in buggery cases; most involved power imbalances, and most also involved allegations that men had sex with boys or adolescents. While it resembled hundreds of other cases, though, Parker’s gained special notoriety because it happened to set an important precedent in sodomy law.

Military justice before the Supreme Court of Canada: R v Vu - update

On Saturday, 13 January 2024, this Blog indicated that the Supreme Court of Canada (SCC) would hear an appeal on 16 January 2024 arising from the Court Martial Appeal Court of Canada (CMAC) judgment in R v Vu, 2023 CMAC 2.  The matter concerned a prosecution for sexual assault and the central issue (as is often the case) was consent.  One of the aspects of consent was whether the complainant was so intoxicated that she could not consent to the sexual activity.

By virtue of the dissent at the CMAC, the Minister of National Defence (represented by the Director of Military Prosecutions) had a statutory right of appeal to the SCC.

In a somewhat anticlimactic development, the SCC issued it's judgement from the bench with brief oral reasons read out by Chief Justice Wagner: R v Vu, 2024 SCC 1.  The Bench was comprised of seven judges and split 6:1, with Justice O’Bonsawin dissenting.  (Justices Côté and Kasirer did not participate.) 

The majority adopted the reasons of the Chief Justice Bell and Justice Trotter at the CMAC; Justice O'Bonsawin adopted the reasons of Justice McVeigh (who dissented at the CMAC).  While the majority of the SCC agreed with all of the justices of the CMAC that the military judge engaged in some improper speculation, they shared the view of the majority of the CMAC that those comments did not undermine the military judge’s fundamental findings.

How not to foster public confidence in the administration of justice

Okay, so Pakistan has been trying civilians in military courts . . . again . . . but this time without the cover of a constitutional amendment. The situation so far, if we understand the state of play: a 3-judge panel of the Supreme Court decides the size of the bench that will hear a case. A 5-judge bench hears the case and, by a 4-1 vote, invalidates the pertinent provision of the Army Act. A 6-judge bench then suspends that decision in the context of a so-called "intra-court appeal," which to American ears sounds like a rehearing en banc. The courts-martial continue in the mean tine. Only then does the 5-judge bench issue its opinions. Now a former Chief Justice of Pakistan is asking that the case be decided by a 7-judge bench. Details here. Oh, and two of the court's justices have resigned.

As Casey Stengel (above) famously asked "Can't anybody here play this game?" Except it's not a game.

Negligent homicide verdict against air traffic controller in Swiss crash case

An air traffic controller has been convicted of negligent homicide in the case involving the crash of a Swiss Air Force plane. He was awarded a suspended sentence of loss of 60 days' pay. The pilot of a second aircraft was acquitted. The air traffic controller has appealed to the Military Court of Appeal, and the prosecution is still weighing whether to appeal the second pilot's acquittal. Details here en français.

Passing of Prof. Aifheli E. Tshivhase

We learned today that Prof. Aifheli E. Tshivhase, a notable South African expert in military justice, passed away last June. Dr. Tshivhase was an active participant in reform workshops at Yale Law School, and an insightful and fearless analyst of South African military justice. He was an alumnus of the Human Rights and Democratisation in Africa master's program at the University of Pretoria. He served in the South African National Defence Force and was an International Fellow of the National Institute of Military Justice. An obituary appears here.

Why is this case in military court?

A Kenyan Defence Forces officer is facing military trial for assaulting and torturing his wife's civilian lover. The maximum punishment under the civil offenses provision of the Kenya Defence Forces Act, 2012 (§ 133(1)(b)) is only two years' imprisonment. Details here. Isn't this the wrong forum?

Pakistan's military trials proceeded anyway

The International News reports here that military trials of civilians have been proceeding even while the Supreme Court decides whether they are valid. The results of the trials have not been announced. The court's expanded bench is to resume hearings next week. Excerpt:

The court through the 4-1 majority had also declared certain clauses of the Army Act as ultra vires the Constitution and of no legal effect. . . .

The verdict by the Ijazul Ahsan-led bench had not only upset the government for nullifying the military trial of 103 May 9 suspects but more so because of striking down certain Army Act provisions, which were part of the statute for the last over five decades.

The striking down of the Army Act provisions had even stopped the military courts from trial of foreign spies and terrorists like Kulbhushan Yadhav. Under the Army Act, innumerable civilians have been tried during the past five decades. Those found guilty by military courts not only have the option of challenging their convictions within the military setup but they can also appeal in high courts and later in the Supreme Court.

Pakistan has repeatedly turned to military courts to prosecute civilians. The last time it did so, it operated under a temporary amendment to the Constitution. This time around, there is no such amendment. 

Responsibility for drowning of two members of the military during training exercise

    A corporal and a soldier drowned in a lake on the military base of Cerro Muriano in Spain on December 21, 2023 during a training exercise in which approximately 60 soldiers participated.  Margarita Robles, the Minister of Defense, visited the site (see photo) on January 4, 2024, to pay homage to Carlos Leon Rico, aged 24, single and from Sevilla, who had joined the military only 7 months earlier, and Miguel Angel Jimenez Andujar, aged 34, from Cordoba, married and expecting a child, who had participated in missions in Latvia and Lebanon, and was an instructor in these exercises, who attempted to rescue the soldier.  The Minister who visited the base asked the soldiers in the company to which they belonged not to hide anything in their testimony in court: "We are all human and we commit mistakes.  If there have been mistakes, then we need to know about them.  I ask all of you to tell the absolute truth about what happened."

When the first soldiers began to cross, the bottom of the lake was muddy and in many places it was not possible to stand and various soldiers began to call for help and scream that they were drowning and others who were waiting to enter the water jumped in to rescue them.  After a few minutes of chaos, the majority managed to get out onto terra firma but they realized that the corporal and the soldier were missing.  They didn't find the two until late in the afternoon.

Agents from the Civil Guard, the Police, the Fire Department from Cordoba and members of the military comprised the search party to look for the two missing members who had drowned in the military training manoeuvre.  The lake is 200 square meters across and many military exercises are conducted there, such as crossing the lake with tanks or other machinery.

For the previous two weeks, about 20 soldiers, including Carlos Leon Rico, were carrying an inert mine in their backpakcs that weighed about 2-3 kilos, which was a punishment for performing the previous exercise badly.  Physical punishments are prohibited in the Army, not to mention that the extra weight could have contributed to the drowning.  This could have been the crime of abuse of authority or mistreatment of someone of inferior status.

The civilian court in Cordoba ordered the removal of the cadavers and has taken charge of the initial proceedings.  But the investigation has been halted because the military court in Sevilla presented a petition calling on the civilian court to turn the case over to them.  The public prosecutor has called for the case to be turned over to the military court in Sevilla, but the parents of the corporal and his widow and the family of the soldier are opposed, because they want the case to stay in the civilian court because they consider the death to be the result of a certain kind of homicide (dolo eventual), which is a crime that does not exist in the Code of Military Justice.  The crime is characterized by the intent to commit a crime, when during the course of events a different crime results.  For example, a thief intends to rob an old woman, and in the scuffle, the woman falls, and dies.

Before the military maneuver, a rope was extended around the banks of the river, but it was not firmly attached and did not fulfill the function of a life-line.  The soldiers could not grab on to it when they lost footing  Also there was no ambulance nor medical support in the area.  The captain who led the company and did not order the exercise suspended for the risks that were involved, was removed from his command 24 hours later by order of the Chief of Staff of the Army.  No charges have been filed against him to date.

UN peacekeeper discipline

The February 16, 2023 report by the UN Secretary-General to the General Assembly on measures for protection from sexual exploitation and abuse can be found here. Supplemental information on allegations during 2022 can be found here. There were 58 allegations of sexual exploitation or abuse by military personnel in 2022, up from 52 the previous year. In 2021, a contingent from the UN Multidimensional Integrated Stabilization Mission in the Central African Republic was repatriated due to misconduct.

Guantánamo

Global Military Justice Reform contributor (and University of Texas law professor) Steve Vladeck has a terrific review of the 22-year-long, sorry tale of Guantánamo-related litigation here on One First, his Supreme Court-focused substack. Excerpt:

There’s a lot to say about how we got from January 11, 2002 to today—and how there are still 30 detainees at Guantánamo, with no reason to expect that number to go down significantly anytime soon. But I thought I’d use this particular anniversary to remind folks of the role the Supreme Court played in Guantánamo cases—at least for the first decade.

It’s an interesting historical story unto itself, but it also reflects a broader, deeper debate about the core purpose of the “Great Writ” of habeas corpus—whether it’s the protection of individual rights (in which case, the Guantánamo cases are not a happy story) or the preservation of a meaningful judicial role vis-a-vis the other institutions of government (in which case, the Court’s behavior seems both more successful and much easier to defend).

Meanwhile, Carol Rosenberg and Marisa Schwartz Taylor had this richly illustrated story last week in The New York Times about Guantánamo and its "Camp Justice."

Somaliland's military trial of a journalist

A Somaliland journalist is being held for trial before a military court. His offense, apparently, is having hosted an online debate about a recent controversial agreement between Somaliland and Ethiopia. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts. The African Charter of Human and Peoples' Rights has been interpreted to bar such trials completely.

Rev. Dr. Martin Luther King Jr. Day

Padres, religious and otherwise, in Australia

File this post under "Not military justice, but . . . " 

Former Royal Australian Navy Principal Chaplain and Director-General of Chaplaincy Collin Acton OAM has written a fascinating Pearls & Irritations post about the underrepresentation of nonreligious (aka secular) padres in the Australian Defence Force, with some eye-popping data. Excerpt:

The [Defence Force Remuneration Tribunal] DFRT interim report revealed the staggering gap in the provision of secular pastoral care/wellbeing support. As of November 2022, the ratio of Christian chaplains to Christian personnel stood at 1:134. In comparison, the ratio for non-religious pastoral carers (MSWOs) to non-religious personnel was 1:11,992. For Muslims, the ratio was 1:62. For Buddhists, it was 1:83.

In not pursuing secular reform, Army and Air Force are effectively disregarding the evolving needs of non-religious members in seeking pastoral care. The question that then must be asked is: “Why?”

I see several challenges that need to be addressed for reform of Defence chaplaincy to happen.

The first is the age and conservative nature of senior military leaders. As detailed by [Col. Philip] Hoglin, religious adherence among senior personnel remains high – about 80 per cent. In contrast, almost 65 per cent of Defence personnel in total and about 80 per cent of new recruits are not religious.

It is these older senior leaders who consider religion an important part of the Defence Force. Senior officers will also have grown up in the military with memories of the “good old padre” and cannot see why the current generation would not want to engage with the chaplain.

Another block to reform is the taxpayer-funded committee of religious clerics known as the Religious Advisory Committee to the Services (RACS), which oversees chaplaincy appointments. From the outside, it looks like a multifaith 10-member committee. However, it is predominantly led by five Christian members, and they are all former senior military chaplains strategically elevated to influential roles within their churches.

This committee vehemently opposes chaplaincy reform initiatives. It frustrated my reform efforts. In 2022, after I spoke on ABC radio about the need for secular reform, the committee raised allegations against me with the Chief of the Defence Force, prompting an investigation. The investigation ultimately exonerated me – not before it was made clear that I would have to leave my Navy career of more than 30 years if I wanted to continue publicly advocating for secular reform of chaplaincy.

It’s troubling that a committee of religious clerics with a direct line to the Chief of Defence Force has so much influence over Defence’s frontline pastoral care and wellbeing support capability.

Amplifying that concern is the fact that some of its members have spoken publicly about chaplaincy roles being “missionary” ones, apparently with the aim of bringing people to Jesus. The current chair, Anglican Bishop Grant Dibden, said in a 2021 speech that chaplains were “missionaries in the Defence Force”. In a report to the Anglican General Synod in 2022, he said Defence chaplains must have a “missionary mindset” and must be strong enough to “resist” pressures to “compromise their message”.

Discuss among yourselves.

Tenth anniversary -- and some important news from HR

Ten years ago today, Global Military Justice Reform was launched. The first post read:

Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective. The content reflects only my views. The blog will be a work in progress, and the only thing that is certain is that it will change over time. For the moment, the comment feature has been disabled. If you have any suggestions or know of significant relevant developments, please email me. Above all, I hope you find this blog useful.

That decade-old mission statement remains accurate (except that the comments function has long since become fully operational). In the intervening years, Global Military Justice Reform has been front and center on many of the issues that have arisen around the world in this increasingly critical field. We still have no foreign policy. One change of note: we are now affiliated with the National Institute of Military Justice, although our editorial independence remains intact.

The law of military justice has changed in country after country, typically for the better. Some big issues remain unresolved, perhaps most notably the persistence of some countries in employing the military justice system to prosecute civilians, including retirees. While some forums for reform, such as the Office of the High Commissioner for Human Rights, have not been as active in reform efforts as one might prefer in the last few years, others, such as the Commonwealth and the U.S. Congress, have taken a welcome, active interest in the subject. Military justice issues have been addressed by a number of constitutional and supreme courts. Major cases are pending right now.

In addition to the evolving list of topics, the numbers are worth noting. As of today, Global Military Justice Reform has had 1,592,951 hits from readers in 195 jurisdictions. The blog has had 7270 posts and 1067 comments. We've held 25 town halls. At present, there are 27 contributors, to whom we owe an incalculable debt.

Global Military Justice Reform has sought to achieve a high, professional level of content (along with an occasional lighter touch here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza). A key editorial judgment has been to exclude anonymous posts and comments, and we will continue that policy, mindful that we may at times pay a penalty as a result. On balance, we believe it is best that authors identify themselves. Comments are moderated.

Finally, some big news from the HR Department. Longtime contributor Rory Fowler has agreed to take on the duties of Associate Editor, adding further international depth to the blog. Working from his secure satellite bunker in an undisclosed location in the vicinity of Kingston, Ontario, Rory will assist as we move into the second decade of reporting on, and discussing, military justice reform. Rory retired from the Canadian Forces seven years ago after nearly 28 years of service as an infantry officer and, more recently, a legal officer. He has continued in private practice and has pursued scholarship focusing on military justice and the Crown-soldier relationship. Welcome to the executive suite, Rory!

Military justice before the Supreme Court of Canada: R v Vu

On Tuesday, 16 January 2024, the Supreme Court of Canada (SCC) will hear the appeal in R v Vu, 2023 CMAC 2.  This case concerned allegations of sexual assault prosecuted under the Code of Service Discipline before a Standing Court Martial.  As is often the case in matters concerning sexual assault, consent was a central issue.  

The complainant testified that she did not recall all of the material events.  However, evidence was presented to the court martial that demonstrated the complainant's consent to the sexual activity.

Both the complainant and accused were intoxicated from the consumption of alcohol.  And this prosecution turned in large part upon whether the complainant was incapacitated by extreme intoxication.  Among other statutory provisions, this factor engaged section 273.1 of the Criminal Code.  Subsection 273.1(2) relates to circumstances in which consent is not obtained, including when the complainant is unconscious or for any other reason (e.g., extreme intoxication).

The military judge at first instance held that the accused sought consent from the complainant, that consent was given before, and throughout, the sexual activity, and that the complainant, though intoxicated, was not so severely impaired that she was incapable of giving consent.

The Director of Military Prosecutions (DMP), representing the Minister of National Defence (MND), sought appeal before the Court Martial Appeal Court of Canada (CMAC).  In a 2:1 decision, the CMAC upheld the trial judge's acquittal.  The majority of the court, consisting of the Chief Justice and Justice Trotter, a leading criminal law jurist from the Court of Appeal for Ontario, held that, though the military judge may have made minor errors, these did not materially affect the outcome of the trial.  Dissenting, Justice McVeigh, held that a new trial should be ordered.

Justice McVeigh also observed that, up to that point, no Canadian court (particularly appellate court) had yet offered meaningful interpretation of subsection 273.1(1.2) of the Criminal Code, which states that the "... question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) [of section 273.1] is a question of law ...".  Consequently, the judgment from the SCC will have an impact not only on military justice and courts martial, but also the prosecution of sexual assault before civil courts of criminal jurisdiction within Canada.

And, as the grounds of the MND's appeal turned on a question of law, and in light of the dissent in the judgment, the Crown had a right of appeal to the SCC.

Global Military Justice Reform contributor Rory Fowler has provided commentary on this case, which can be found here: Judgments from the Court Martial Appeal Court of Canada – R v Vu, 9 January 2024.

Unfortunately, this hearing will not be webcast live.  However, those who may wish to obtain additional information regarding this hearing, can find the relevant information here: R v Vu, SCC Docket 40655

Disappearing act

Remember former Suriname President Dési Bouterse? He's vanished, following the recent announcement of his 20-year military court sentence. Details here.

Research tools for U.S military justice practitioners, judges, scholars

Judge Gregory E. Maggs of the U.S. Court of Appeals for the Armed Forces has made available three extremely worthwhile source documents. These are:

Amendments to the Uniform Code of Military Justice Since 1950 (2024 ed.)

Amendments to the Rules for Courts-Martial Since 1984 (2024 ed.)

Amendments to the Military Rules of Evidence Since 1984 (2024 ed.)

Many people worked on these compendia, as noted in the front matter. Bravo and congratulations to all.

Military Justice Review Panel open meeting, Jan. 16-17, 2024

From the Military Justice Review Panel's website:

The Military Justice Review Panel ("MJRP" or "the Panel"), will hold an open meeting on Tuesday, January 16, 2024 from 9:45 a.m. to 2:00 p.m. and January 17, 2024 from 10:15 a.m. to 2:45 p.m.

The Secretary of Defense, pursuant to § 5521 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017, as amended by § 531(k) of the FY 2018 NDAA, established this panel to conduct independent periodic reviews and assessments of the operation of the Uniform Code of Military Justice (UCMJ). 10 U.S.C. § 946. Art. 146 (effective Jan 1, 2019). Pursuant to Article 146, Uniform Code of Military Justice (UCMJ), the Panel shall conduct independent periodic reviews and assessments of the operation of the UCMJ, including the review and assessment of the implementation of amendments made to the UCMJ and sentencing data.

On Tuesday, January 16th, the Panel will hear from former military judges and the Services Program Managers for Victims’ Counsel.  On Wednesday, January 17th, the Panel will hear from Service representatives of the Government Appellate Divisions, followed by the Defense Appellate Divisions.

The MJRP welcomes written input from the public on these topics or other issues under its consideration. Written comments must be received by the MJRP at least five (5) business days prior to the meeting date so that they may be made available to the Committee members for their consideration prior to the meeting. Written comments should be submitted via e-mail to the MJRP at whs.pentagon.em.mbx.mjrp@mail.mil.  Please note that all written comments will be treated as public documents and will be made available for public inspection.

More information about the Panel, including the meeting agenda and materials, is available on its website at http://mjrp.osd.mil. In the event the Office of Personnel Management closes the government due to inclement weather or for any other reason, please consult the website for any changes to public meeting dates or time.

A bridge too far!

 Earlier this week, the Canadian media reported on the materials published in a recent Special Edition of the publicly-funded Canadian Military Journal – Revue militaire canadienne [CMJ] which now often greets readers with insights and recommendations for ‘meaningful military culture change”. The Special Edition [Vol 23 No 3 -Summer 2023] contains seven research articles on Canadian Military Culture on such esoteric subjects as "“Interrogating Whiteness and Power in the CAF.”  

On January 9, 2024, an Opinion Piece  written by Brian Lilley, a veteran political columnist with the TORONTO SUN, concluded that this Special Edition indicates that the Department of National Defence is: “obsessed with the blaming all issues in the Military (in particular the current low recruiting and retention rates) on “patriarchy, colonialism, white supremacy, heteronormativity, ableism and classism.”  Lilley was also critical of the researchers:  “None of these researchers attempts to understand military culture, they simply seek to attack it using critical race theory and other discredited academic pseudo-social science theories. . . .He went on: "The military brass needs to retract these documents, apologize for them, and then do the real work needed to secure change.”

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Of note, the CMJ is considered by the Canadian Armed Forces as being "a strategic media asset and the flagship publication of the Department of National Defence and the Canadian Armed Forces fostering intellectual debate on defence and security issues." It is lavishly produced on lustrous and glossy photographic paper with high quality print. Très chic. 

A strange ruling in Pakistan

Last year, a 5-member bench of the Pakistan Supreme Court ruled that provisions of the Army Act under which civilians could be tried in courts-martial were invalid. The decision was not accompanied by any opinions. The opinions have now come down, as explained in this Express Tribune article. What is strange is that the past ruling will not apply to all cases.

“Cases of persons convicted by court martial and who have either (i) served out the sentence, or (ii) who are serving the sentence but have exhausted legal remedies and/or whose convictions have otherwise become final, shall be regarded as past and closed, and remain unaffected by this judgment.”

The three opinions can be found here on the court's website. The court is in considerable disarray: two of the justices who participated in the military-courts decision resigned this week, according to this report.

Meanwhile, a larger bench still has to decide the constitutionality of the Army Act provisions. Watch for further action by that larger bench in response to the 5-member bench's decision. What a mess!

Postscript: Dawn has this detailed report on the issues roiling the court.

Judges in their own cause?

Lt Gen (r) Prakah Menon

Global Military Justice Reform contributor Major (r) Navdeep Singh and the Editor write here in response to an op-ed by a retired general officer. Excerpt:

In his article, General [Prakash] Menon disagrees with an earlier op-ed in which we, the authors of this article, argued for an independent prosecution in military justice, one that would not be connected with the chain of command. General Menon goes on to explain that there is a clear need for “judges” to have “professional insight into the operational environment.” He adds that the “judgement” of such actions is better taken by “commanders”.

This misconceives our position. First, he has treated the prosecution and the judges as a single entity, when these are two completely different things, like chalk and cheese. He further wants Commanders to be judges. All of this is wide of the mark, and is unfathomable in any democracy, including India, which embraces the precious concepts of ‘rule of law’ and ‘separation of powers’. In any case, the members of the court martial in India already are serving military officers.