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."