Friday, May 31, 2024

Civilian convicted of treason by Russian military court

Current Time, from RFE/RLreports:

"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."

Thursday, May 30, 2024

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)

Tuesday, May 28, 2024

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."

Monday, May 27, 2024

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.

Tuesday, May 21, 2024

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.

Sunday, May 19, 2024

Talking about bullying

(New York Times) Review: The Tragic Story of ‘An American Soldier’ Comes Home

An opera about Danny Chen, an Army private who died by suicide after experiencing racist hazing while serving, was performed in New York, his hometown.

The piece opens on the court-martial of a brutal sergeant who was Private Chen’s chief antagonist. It then alternates between the courtroom and the chronological unfolding of Private Chen’s story, from the first glimmers of his idea to join the Army — an effort to prove that he was a “real American” — through the camaraderie of basic training, his endurance of racism at his next post and his nightmarish treatment once he reaches Afghanistan. His mother is a tender presence in her scenes at home with her beloved son, and a figure of fury and hurt during the court-martial, which resulted in the sergeant’s being found not guilty of the most serious charges.

Bullying in the carabinieri

Memo to self: do not write notes on a subordinates's forehead.

The matter is under investigation. Google does a pretty good job of translation.

Friday, May 17, 2024

Administrative separation procedures

Each U.S. military Service has a process to administratively separate (referred to as 'AdSep') someone from the military. This type of discharge is typical for misconduct or unsatisfactory performance. The person's service can be characterized as Honorable (HD), General Under Honorable Conditions (GD), or Under Other Than Honorable Conditions (OTH). The AdSep process is designed to be an effective means of discharging someone from the military without the need for a court-martial, which can be a lengthy and resource-intensive process. However, there have been concerns that commanders are using administrative discharges in cases where a court martial would be more appropriate. This issue was highlighted by Gen. James Mattis, then Secretary of Defense, who advocated for more courts-martial. A similar sentiment was expressed, sub silentio, by Dwight Sullivan in his writings.

A person who undergoes an administrative separation (AdSep) is not just "fired" but permanently stigmatized, even if they are given a General Under Honorable Circumstances (GD) discharge. This stigma often extends beyond the military, with civilian employers or others equating the punitive discharge from a general court-martial with an administratively assigned OTH. This long-lasting impact on an individual's reputation and future prospects is a matter of significant concern.

There are criticisms of AdSeps that focus on them being biased, perfunctory, "paper drills" with barely sufficient due process. A person separated with a GD has no right to a hearing or counsel, a significant gap in the process. A person recommended for an OTH has the right to a three-person board hearing, counsel, to produce or to cross-examine witnesses, and to give testimony or make an unsworn statement. However, except for relevance, there are no rules of evidence, which raises concerns about the fairness and transparency of the process.

Thus, we have come a long way around to Sierra Ross, Adequate but Not Ideal: The U.S. Navy's Need to Refine Its Administrative Separation Board Procedures. 11 Tex. A&M L. Rev. 715 (2024). The author suggests 

[T]hree possibilities to improve this system. First, the DOD or Navy may design training programs to ensure Senior Members (“SM”), who are the individuals who manage Adsep Boards,\ understand when evidence is relevant, authentic, and competent and are able to explain and apply the factors they consider when characterizing a discharge. Second, the DOD or Navy could create two rules that would only be applicable in cases where a service member could receive an OTH discharge. One rule would be to limit witnesses to testifying about matters about which they have personal knowledge. Another rule would be to limit the type of opinions that lay witnesses can present to the Board. Third, the DOD or Navy could remove OTH discharges from the purview of Adsep Boards and leave this discharge to courts-martial.

The author, Class of 2024, is to be commended for taking on a difficult subject. Several points should be considered. 

Thursday, May 16, 2024

An interesting career

"William John King had deserted a total of five times in his career in the army. He had (re-)joined the same regiment six times. This was, perhaps, by force, by choice, or because he had no other opportunities available to him. He had spent 6 years and 176 days in India. He had been sent to France in the BEF for 15 days, received a gunshot wound in his right arm, and then been sent home for 20 days. He returned to France for 48 days, before being sent home for 2 years and 65 days, before being sent back to France to fight for 96 days, and finally return to the depot for 1 year and 64 days. He had been court martialled four times. He was detained at the depot three times and imprisoned three times. Ultimately, he had served his 12 years, but had remained in the army between 1902 and 1930 (a total of 28 years). He forfeited his entire service, and it was only reckoned from 10 December 1918 until 24 September 1930, a total of 12 years. He received an army pension as a result only for that period. He was awarded the Victory Medal as part of the BEF16and also the 1914 Star Medal (TNA 1921)17. Perhaps, as previously stated, the time in the army had afforded him the luxuries that he would not have been able to access outside of the army, given his social status and lack of opportunity. The fact that his pension was only reckoned from 1918, therefore, must be seen in the light of the advantages that he had gained while serving: food and accommodation, and perhaps some sense of structure, and employment (although with his own personal adoption of flexibility towards that, from time to time)."

From Andrew Milne, The Typography of Forgetting: The Unsettling of Dominant Social Narratives in the Resurfacing of a Military Deserter in Family Memory, Genealogy 8(2) 60 (2024).

Tuesday, May 14, 2024

Manxmen of the World, unite!

It's a quiet evening here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. What a nice surprise, therefore, when Blogger reported that we had a hit today from the Isle of Man. To our mysterious visitor (not the first from the Isle), all we can say is "Fastyr mie."

David McBride, ADF whistle-blower, pleads guilty and is sentenced

David McBride, a former Australian Defence Force (ADF) legal officer has been sentenced to 5 years, 8 months following a guilty plea to three charges, including theft of secret documents and sharing them with news media.  He will be eligible for parole in 27 months.  The maximum sentence he faced was life imprisonment.

Mr. McBride pled guilty to the charges after preliminary applications for potential legal defences failed.  In particular, the trial judge, Justice David Mossop, indicated in an earlier ruling that he would not instruct the jury that they could consider McBride's proposed argument that he acted out of a sense of duty to the Australian public.

The Australian Director of Human Rights Watch, Daniela Gavshon, suggested that McBride’s sentencing was evidence that Australia’s whistleblowing laws needed exemptions in the public interest:

“It is a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers ..."

This matter has received global news coverage, including from the BBC, and CNN, as well as the Australian Broadcasting Corporation, the news outlet with which McBride shared the secret information.

His counsel have announced that they will appeal (and that fund-raising through social media platforms has provided sufficient financing to appeal).

‘Should civilians be tried in Military Courts?’

‘Should civilians be tried in Military Courts?’ That is the title of an article in The Independent (Uganda), 14 May 2024.

The Supreme Court will deliver its judgment on notice in the case where the government is challenging the Constitutional Court’s decision barring military courts from trying civilians. This pending case was filed as an appeal by the Attorney General following a successful petition by Former Nakawa Member of Parliament Michael Kabaziguruka.

In 2021, the Constitutional Court Majority of Justices ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions within 14 days.

Kabaziguruka first petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye General Court Martial on charges of treachery, alleging an attempt to overthrow the government of Uganda. He argued that his trial before the military court was unconstitutional and that he had been denied the right to a fair hearing.

Based on this, the Majority of the Constitutional Court justices ruled that although the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defense Forces. They ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court Criminal Division for either retrial or handling as the court deems fit. The same justices ruled that a civilian can then be charged as an accomplice.

Saturday, May 11, 2024

Chilean president threatens to veto military courts measure

"During my government, military courts will not be reestablished,” said President Gabriel Boric this Thursday, regarding the discussion in Congress regarding the draft Rules for the Use of Force for members of the Armed Forces and police in exceptional contexts. .

Although the opposition's indication proposing that military justice be the one to investigate RUF crimes was declared inadmissible in the Chamber of Deputies, voices have emerged that propose reinstating it in the discussion in the Senate.

In an interview with Cooperativa radio this Friday morning, when asked if La Moneda is willing to apply a veto if the opposition proposal advances, the Undersecretary of the Interior, Manuel Monsalve, did not rule it out.

From this article in La Tercera

Watch this space.

2017 Army retiree tried by court-martial for preretirement offenses in Hawaii, Florida

Here's the Army's announcement:

A retired Soldier, recalled to active duty, was sentenced on Wednesday by a military judge to 108 months of confinement for the sexual abuse of a minor.

Staff Sgt. William Rivers, 55, pled guilty and will serve 80 months based on terms of a plea agreement. In addition to the prison term, the military judge reduced Rivers to the rank of private E-1 and imposed a bad conduct discharge.

Rivers sexually abused his stepdaughter over multiple years in Hawaii and Florida before he retired from the military in 2017. He was recalled to active duty specifically for the purpose of this general court-martial.

Rivers was arrested at Camp Humphreys, South Korea, by the Army Criminal Investigation Division in December 2023 where he was working as a contractor. During the course of the investigation, the Naval Criminal Investigative Service obtained evidence where Rivers admitted to sexually abusing the victim for several years across multiple duty locations.

On May 8, Rivers plead guilty to five specifications of sexual abuse of a child. He has remained in custody near Fort Moore since his arrest in December 2023 in South Korea.

“The outcome of this case shows that the Army will pursue justice even after an offender retires from the service,” said Maj. Steven Poland, lead prosecutor, Second Circuit, Army Office of Special Trial Counsel.

“While the process may take a significant amount of time and resources, it is important for victims to know that we will do everything in our power to hold their abusers accountable for their actions. The victim in this case was strong and patient, I am glad she was able to seek justice and hope she continues to heal.”

“Mr. Rivers deserves to be brought to justice for his crimes,” said Special Agent in Charge Tim Mahew of the NCIS Far East Field Office. “NCIS and our partners remain committed to protecting innocent children in communities where our service members' families live and work.”

The investigation was conducted by the NCIS – Iwakuni, Japan Resident Agency, Army CID – Korea Field Office, and prosecuted by Maj. Steven Poland, Second Circuit, Army OSTC, with assistance from Maj. William Wicks, Third Circuit, Army OSTC, and Cpt. Scott Gronsky, Office of the Staff Judge Advocate, U.S. Army Maneuver Center of Excellence, Fort Moore, Ga.

Query: did the defense challenge court-martial jurisdiction over retirees? If not, why not? And why was the case not prosecuted by civilian authorities in Hawaii and Florida? Did they turn it down? Was there a statute of limitations problem? Some other reason?

Inter-Services Organisations (Command, Control & Discipline) Act implemented in India

The Government of India has issued the implementation notification for the Inter-Services Organisations (Command, Control & Discipline) Act, 2023 with effect from 10 May 2024.

The Act was passed with a view to streamline discipline for Inter-Services Organisations where personnel of the Army, Navy and the Air Force serve together. It may be noted that the necessity of this Act arose since the defence services have separate Acts in India, not a joint code, and therefore powers needed to be clarified and vested in officers commanding mixed body of troops rather than the ones mentioned in the separate respective Acts. 

For example, the Army Act may vest certain powers in the General Officer Commanding-in-Chief holding the rank of Lt Gen with respect to certain troops, but an Inter-Services Organisation (Joint/Purple organisation) may practically be having a Vice Admiral at the helm as the Commander-in-Chief. 

A related 2021 opinion piece jointly authored by the Editor-in-Chief along with another editor of this blog, on the subject of the desirability of a common disciplinary code in India can be accessed here. 

The Act can be accessed here.

The official press release by the Government of India can be accessed here.

Friday, May 10, 2024

Pakistan's military courts case

Dawn has published this exceptional piece of long-form reporting, May 9: Mayhem and Military Trials--A Year On. The feature article includes, among other things, a useful summary of the country's repeated misuse of military courts to try civilians. Numerous aspects of the military justice system fall far short of contemporary standards, including but not limited to the unavailability of an independent and impartial appellate court with full power to conduct plenary direct review.

Thursday, May 9, 2024

Looking back at New Zealand military law's treatment of homosexuals from the 1940s to the 1960s

In a new article, New Zealand’s Military and the Disciplining of Sex between Men, 1940–1960 published in the University of Texas Press periodical, Journal of the History of Sexuality, Professor Chris Brickell from the University of Otago provides some interesting, if troubling, reflections on the approach which was taken by both the New Zealand military and civilian authorities to homosexual conduct by members of the Armed Forces during World War II and the immediate post-war period. Prof. Brickell correctly points to the ambivalence of many senior leaders and the inconsistent responses which resulted, despite fairly well developed official policy reflecting the prevailing law and societal attitudes. Even in the 1980s, as a young midshipman, I was instructed on the proper steps to take if confronted by "unnatural acts", which involved some quite forensic procedures. This created a degree of unease among my cohort. Homosexuality was regarded as a security risk, because foreign agents might use undisclosed homosexuality to blackmail an officer or sailor into divulging classified information. Of course, this entirely overlooked the fact that such blackmail was only possible because the system compelled LGBTQ personnel to conceal their sexual orientation.

I was also serving in one of HMNZ ships when the Human Rights Act 1993 came into force, prompting humorous banter in the Wardroom that "the closets would bust open" on the appointed day. Of course, nothing of the sort happened. What did happen was incremental changes in the culture (and policy) of the NZDF which has led to the much more enlightened approach to sexual orientation we see today. It has taken our community a while to realise that, while the professionalism and courage of our comrades in arms are important, their sexual orientation really isn't.

Criminal justice reform finds its way to the VA

Great news for veterans with bad paper for minor offenses. According to Stars and Stripes, "Veterans who left miliary service with an other-than-honorable discharge or after a special court-martial for misdemeanor offenses will be eligible for the first time for veterans’ health care and benefits following a rule change announced Thursday by the Department of Veterans Affairs."

This appears part of an American trend over the last 10 years, of more leniency for miscreants. As a soft hearted man, I'm happy for the veterans who can take advantage of the change. But I'm a little concerned for Trial Defense Attorneys in the Uniformed Services who are more limited in preventing bad paper. It will be tougher to play the heartstrings of separation authorities, board members, and military judges when asking to take it easy on servicemembers so they won't lose much needed VA benefits. Guess we will just have to think of different arguments then. 

Wednesday, May 8, 2024

Clarification needed in Vietnamese military court practice

Bui Van Duy, of the People's Poilice Academy, Hanoi, has published Some Problems in Applying the Vietnam Criminal Procedure Code 2015. Several of the issues examined conern the jurisdiction of the military court.

Monday, May 6, 2024

Russia's continued assault on the law of war

Russia continues to flaunt international humanitarian law (the law of war) by prosecuting Ukrainian prisoners of war for privileged acts of warfare. The lengthy list of such Russian trials of Ukrainian fighters is defective in two ways: first, the law of war provides broad immunity for lawful acts of warfare and second, prosecutions of unlawful acts committed by enemy fighters must meet fair trial guarantees. 

While media accounts of the details of claimed offenses tried in Russian courts are scarce, it's worth knowing that the law of war provides broad swaths of immunity from criminal accountability for acts of warfare -- violence -- by members of military units under responsible command as long as such acts are not otherwise prohibited by the law of war (such as torturing or killing prisoners, intentionally targeting civilians, etc.)  The latest Russian sham trial of Ukrainian soldiers resulted in an 18-year prison sentence for an unfortunate member of the Ukrainian military's Azov Battalion. While this unit is not without its own controversy, per media accounts this unit is part of the Ukrainian military under responsible command, and its members entitled to combatant immunity for lawful acts of warfare. 

Finally, while the law of war demands that war crimes (serious violations of the laws and customs of war) be criminally prosecuted, prosecutions of prisoners of war for such crimes must be conducted in judicial proceedings that provide fair trial guarantees and are the same proceedings in which the prosecuting state (here, Russia) would prosecute its own military members. Neither requirement appears to be met as Russia continues to further subvert and degrade the law of war, and the rule of law in general, in its heinous war of aggression against Ukraine and global stability. 

Sunday, May 5, 2024

Military Justice at the Unit Level (MJUL) - Version 2.0

In mid-April 2024, the Office of the Judge Advocate General (OJAG) of the Canadian Forces (CF) published a new version of the manual for the Military Justice at the Unit Level (MJUL): Military Justice at the Unit Level Policy 2.0.

This is a significant development in light of the shortcomings of the first volume.

There are shortcomings with the MJUL generally, and some of these shortcomings are inherent in the legislative structure of the MJUL and the principles upon which it is based.  But those problems cannot be corrected by a revised policy manual.

What the policy manual can do - or, more accurately, what can be accomplished through an improved policy manual - is an improvement on the direction offered to the Officers Conducting Summary Hearings (OCSH) under this summary justice regime.

Saturday, May 4, 2024

The Canadian Forces Provost Marshal (CFPM) Resists Oversight

On Friday 3 May 2024, Murray Brewster of the CBC published an online report commenting on the recent Annual Report from the Military Police Complaints Commission (MPCC).  The Chair of the MPCC, Tammy Tremblay, a retired Lieutenant-Colonel and Legal Officer from the Office of the JAG, was appointed Chair of the MPCC in January 2023.  This is her first annual report, and a summary and links to the online PDF version of the report may be found here: MPCC Annual Report for 2023.

Murray Brewster's reporting, entitled "Watchdog agency accuses chief of military police of blocking investigations", discussed the criticism in the MPCC report that was tabled before Parliament last week.  In particular, Mr. Brewster reported:

Tremblay described the situation as unacceptable and called it "an erosion of the MPCC's ability to exercise civilian oversight of the military police."

"The CFPM has, at times, refused to disclose information to which the MPCC is legally entitled and that it requires to fulfill its legislative mandate," Tremblay wrote in the annual report.

She called on the federal government to amend the National Defence Act to compel disclosure.

"Independent oversight of law enforcement is crucial to police legitimacy and effectiveness; one cannot exist without the other," Tremblay wrote.

Her scathing assessment comes as the House of Commons defence committee reviews transparency at the Department of National Defence.

[As an aside, it is common for news agencies to describe the MPCC as the 'Military Police Watchdog', a term that, while certainly evocative, tends to overly-dramatize the nature and function of the MPCC.]


Qamar Bashir
Consider the following, from this op-ed by a writer who previously served as press secretary to the President of Pakistan:

Interestingly, the abuse and condemnation of the army on social media platforms are not unique to Pakistan. For example, in countries like the United States, United Kingdom, India, and others, the military has been subjected to criticism and abuse on social media on account of political differences, human rights concerns, and accountability issues. These countries have also implemented various remedial actions.
. . . [T]he Uniform Code of Military Justice (UCMJ) includes provisions that address disrespectful behavior towards the military.

Mr. Bashir seems to be under the impression that the UCMJ applies to civilians. Even as to military personnel, he's wrong. Next time, do read the statute.

Wednesday, May 1, 2024

Hafetz & Fidell on a certain court-martial

Prof. Jonathan Hafetz's latest Law on Film Apple podcast offers a conversation with the Editor about the recent remake of The Caine Mutiny Court-Martial. You can find it here. The show notes explain:

"The Caine Mutiny (1954) is based on Herman Wouk’s bestselling Pulitzer Prize winning novel of the same name. The film, directed by Edward Dmytryk and produced by Stanley Kramer, portrays the fictitious events on board the U.S.S. Caine, a Navy destroyer-minesweeper in the Pacific during World War II. Executive officer, Lt. Stephen Maryk (Van Johnson), relieves the seemingly unstable Lt. Commander Philip Francis Queeg, Captain of the USS Caine, of his command after Queeg (Humphrey Bogart) endangers the ship and its crew during a cyclone. The ship returns to the U.S. and Maryk is court-martialed for mutiny. He is represented by Navy lawyer, Lt. Barney Greenwald (José Ferrer), who despite disapproving of Maryk’s actions, believes Maryk was misled by the ship’s communications officer, Lt. Tom Keefer (Fred MacMurray), into believing Queeg was mentally unfit for command. Maryk is acquitted after Greenwald effectively places Queeg on trial by his exposing Queeg’s erratic and paranoid behavior. The Caine Mutiny Court-Martial (2023), directed by the late William Friedkin, is based on Wouk’s adaption of his own 1951 novel for the stage. In contrast to the 1954 film, The Caine Mutiny Court-Martial covers only the court-martial. The cast includes Jake Lacy as Maryk, Jason Clarke as defense attorney Greenwald, Monica Raymund as prosecutor Lt. Commander Katherine Challee, the late Lance Reddick as the presiding judge Captain Luther Blakley, and Kiefer Sutherland in a phenomenal performance as Queeg. The films are not only gripping courtroom dramas, but also explore larger themes around military justice, ethics, and morality.  With me to discuss these films is Eugene (Gene) Fidell, a visiting Lecturer in Law at Yale Law School and co-founder of the National Institute of Military Justice."

Two errata: the Editor mistakenly referred to a mutiny aboard HMS Tyger, but should have referred to HMS Wager. The unfortunate accused in the USS Somers mutiny was Midshipman Philip Spencer, not Sinclair.