 |
| Sara Z. Duterte |
Quaere: can a Philippines reserve colonel who is Vice President be discharged or court-martialed for speaking contemptuously of the President and other high officials protected by the 1948 Articles of War equivalent of art. 88, UCMJ? The Philippine Star has the story here.
Lima. Peru. Ten retired Peruvian soldiers were sentenced Wednesday to six to twelve years in prison after being found guilty of the systematic rape of nine women, sometimes minors, between 1984 and 1985, during the conflict internal army against the Maoist guerrillas of the Shining Path.
This sentence closes five years of proceedings in a case that has become emblematic in Peru, being the first to judge sexual violence committed by soldiers.
None of the ten condemned, represented by their lawyers, was present when the judgment was read. Three other soldiers were convicted in absentia. The systematic rapes began in 1984, when the Peruvian army set up a base near the Andean towns of Manta and Vilca in the Huancavelica region (south), one of the poorest in Peru. Some of the victims were minors and five of them became pregnant, their lawyers recalled.
Human rights activists and relatives of the victims gathered in front of the court on Wednesday.
“It’s been 40 long years of fierce struggle. Hopefully this will be a positive decision for us and these criminals will end up in prison,” said Maria, one of the victims whose last name is withheld by court order, in an audio message sent by her lawyer before the verdict.
This 54-year-old woman has two children from these rapes, perpetrated when she was 15 years old.
The November 2024 report of an invited review of the quality of the Service Prosecuting Authority's casework by HM Crown Prosecution Service Inspectorate can be found here. From the summary:
Our findings are very positive. We saw evidence of a thinking approach in legal decision making with prosecutors looking for ways to strengthen cases referred to them by the Service Police, identifying additional reasonable lines of enquiry, prosecuting the right person for the right offences and having a good grip of their casework. Timeliness and case progression was strong in most instances. We also found that there were clear assurance mechanisms that added value.
The report highlights a number of strengths in the SPA’s casework including its legal decision making. Our overall assessment is that the SPA adds real value and the work and time that the DSP and his team have invested into establishing a more structured prosecution approach is clear and can be seen in our findings.
As with all organisations, there are some aspects where improvement can be made. Using our experience of inspecting the CPS and other prosecutors, we have made seven recommendations, some of which, pertaining to disclosure and victims, draw from good practice developed in the CPS.
Although the SPA and the CPS both prosecute criminal offences in England and Wales, they do so in different jurisdictions; the service justice system and the civilian justice system. We found good compliance with the protocols in place to govern where cases should be heard. All the An inspection of the quality of casework in the Service Prosecuting Authority cases we examined were in the correct jurisdiction and there was proper consideration of victims’ views when deciding on jurisdiction.
Only in Russia. Consider this Moscow Times report about Alexei Gorinov, a civilian already in prison for dissenting on the war in Ukraine, is tried again for doing so while in prison. Oh, and tried in a military court.
Still at it while its Supreme Court dithers with an appeal concerning military jurisdiction over civilians, Uganda has tried yet another civilian in a court-martial. The crime? Possession of items of uniform. Details here.
The UN's Committee Against Torture's recent 6th periodic report on Cameroon includes the following concerning the use of military courts to prosecute civilians (footnote omitted):
Tribunaux militaires
36. Le Comité demeure préoccupé par le fait que la loi no 2014/028 du 23 décembre 2014 portant répression des actes de terrorisme donne compétence aux tribunaux militaires pour juger des civils responsables de ces actes et que cette compétence est davantage étendue par la loi no 2017/12 du 12 juillet 2017 portant Code de justice militaire. Il est également préoccupé par les informations selon lesquelles des civils, y compris des personnes critiques à l’égard du Gouvernement ou perçues comme telles, sont régulièrement jugées et condamnées devant ces tribunaux dans le cadre de procès, dont des procès collectifs, dans lesquels ne sont pas respectées les garanties d’une procédure régulière et d’un procès équitable (art. 2, 11 à 13 et 16).
37. L’État partie devrait réviser sa législation afin de retirer aux juridictions militaires la compétence pour juger des civils, y compris dans des affaires relatives à des actes de terrorisme, et veiller à ce que les tribunaux militaires appliquent systématiquement les garanties procédurales fondamentales et les normes relatives à la conduite de procès équitables.
Google translation:
Military courts
36. The Committee remains concerned that Law No. 2014/028 of 23 December 2014 on the suppression of acts of terrorism gives military courts jurisdiction to try civilians responsible for these acts and that this jurisdiction is further extended by Law No. 2017/12 of July 12, 2017 relating to the Code of Military Justice. It is also concerned by reports that civilians, including those who are or are perceived to be critical of the Government, are regularly tried and sentenced in these courts in trials, including mass trials, in which no the guarantees of due process and a fair trial are not respected (art. 2, 11 to 13 and 16).
37. The State party should revise its legislation to remove jurisdiction from military courts to try civilians, including in cases relating to acts of terrorism, and ensure that military courts systematically apply fundamental procedural guarantees and standards relating to the conduct of fair trials.
Prof. Lesley Wexler (Universitry of Illinois College of Law) has written Unwoking the Military for Justia's Verdict page. Excerpt:
. . . Are there policies that satisfy the offered justifications for changing the status quo without reverting to facial exclusion? I offer two possible second-best policy changes that would at least allow for some expressive inclusion even as they would likely still foster the departure of many women from combat roles and transgender individuals from the service.
First, the military could adopt gender-neutral fitness testing. As [Pete] Hegseth’s stated opposition is not to all women in the military—just women in physically demanding roles, gender-neutral testing would address that concern. Similarly, it would address any perceived unfairness regarding trans soldiers taking what is perceived as the wrong test. Of course, one might be fairly concerned that such testing might arbitrarily or intentionally favor feats of strength more easily performed by men without measuring necessary task-specific strength, but it would still be more inclusive than a total ban.
Second, the military could eliminate fitness testing exceptions for trans individuals and gender-affirming care such as hormone therapy and surgery. Again, this might not be my preferred policy outcome, but it has the virtue, minimal as it might be, of not excluding trans individuals as such on its face. In a world of forced choices, offering second-bests is plausibly better than the alternative. At the very least, if supporters reject these alternative solutions despite the fact that they address their stated operational concerns, those supporters would need to explain why total exclusion is necessary—revealing that their true motivations may stem from prejudice rather than from practical military considerations.
A roundtable discussion was held last week in Kyiv on the subject of military justice in Ukraine. Details here.
The participants explored several key issues, including:
- Ukraine's path to EU and NATO integration: harmonization of judicial systems and the feasibility of establishing a military justice structure in Ukraine.
- The military justice system: military police, military prosecutors, military courts, and frameworks for providing specialized legal assistance to service members—are there viable alternatives?
- National mechanisms for ensuring impartial investigations and trials of military and war crimes, as well as mechanisms to enhance the effectiveness of the Rome Statute.
- Military legal relations and military service—do lawyers need specific expertise in military law?
Afton David and Global Military Justice Reform co-editor Rory Fowler have written on Independence of the Canadian Military Judiciary: Much to be Desired?, published by the Canadian Global Affairs Institute and Triple Helix. Excerpt (footnotes omitted):
A Possible Solution
There is a simple and elegant solution, which lies within the scope of the Supreme Court of Canada’s review, and which, unfortunately, was not explored adequately in Edwards: If military judges were removed from the jurisdiction of the CSD, they would remain subject to criminal law, just as civilian judges are. They would remain subject to the supervision of the Military Judges Inquiry Committee regarding the competent and ethical performance of their functions as military judges. Their eligibility requirements would remain the same, which is, as at this date, to have at least 10 years’ service in the military as an officer and at least 10 years’ membership of a Bar of a Canadian Province in good standing. And, most importantly, the reasonable bystander, fully informed of the circumstances and the law, would be satisfied that military judges are not vulnerable to undue influence from the executive.
Despite the Edwards decision and the proposed amendments in Bill C-66, we maintain that as long as military judges remain subject to the CSD, we are not convinced a “reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically” would conclude military judges are free of influence from the executive.
By removing military judges from jurisdiction of the CSD, such an outcome would finally resolve the issues of independence and impartiality of the military judiciary arising out of Généreux 30 years ago, and would be consistent with its reasoning. The issue, now, is whether this logical evolution will arise from a future binding appellate judgment, or whether it will be a product of reform grounded in policy initiatives. One thing is certain; it would recognize a clear distinction between the judiciary and the executive within the military justice system; it would safeguard judicial independence; and it would ensure that courts martial may proceed unimpaired by these issues. Only time will tell how the legislator responds.
Daily Kos has this piece by Bill Addis. Caveat: they conduct no advance review of the contents. Excerpt:
The biggest problem is that [Donald J.] Trump is responsible for the chaotic withdrawal. He reduced troop strength and then negotiated with the Taliban directly, adding to the difficulty of doing the withdrawal.
If Trump's cadre actually follows through on the threat, they'll also expose Trump's mistakes. You can't possibly investigate the withdrawal without seeing these.
It all starts with Trump's frequent mentioning of the 13 soldiers that died from a suicide bomber at Abbey Gate at the Kabul airport. The bomber turns out to have been an Islamic State operative that was freed from prison by the Taliban.
Parker Yesko's article, Turning a Blind Eye to War Crimes, is up on The New Yorker's website. "A second Trump Administration could give impunity to American soldiers who commit atrocities." Excerpt:
As for [Pete] Hegseth, if he manages to win Senate confirmation, he will likely lead the Department of Defense according to principles that he outlines in his best-selling book, “The War on Warriors,” published in June. In it, he rails against “the Left’s antiwarrior radicalism”; pushes for “more lethality, less lawyers”; and suggests that American soldiers could disregard international humanitarian laws altogether. “Our boys should not fight by rules written by dignified men in mahogany rooms eighty years ago,” Hegseth writes. “America should fight by its own rules.”
Given the thousands of war crimes committed by Russia with impunity during its multi-year war of aggression against Ukraine, it's shocking to read about a recent Russian criminal prosecution of two of its soldiers for war crimes (murdering nine family members) in occupied Ukraine. The translated Russian news story linked to in The New York Times states that the two were tried in a military court, but for regular (non-military, non-war crimes) offenses under the Russian criminal code (illegal entry and murder). Accountability however rare is praiseworthy, though of course the world has no idea whether the defendants were accorded due process or whether the trials complied with fundamental judicial guarantees.
Pamel Kaur of the University of Auckland Law School writes here for Jurist about the arrest of Dr. Kizza Besigye, a Ugandan opposition figure and his presentation before the country's general court-martial. Excerpt:
Despite being civilians, Besigye, along with his colleague Haji Obed Lutale was charged with offences relating to security and the unlawful possession of firearms and ammunition at Makindye General Court Martial. The Ugandan Constitutional Court ruled in 2006 that military tribunals lack the authority to hear matters involving terrorism and illegal gun ownership.
Erias Lukwago, Besigye’s lawyer, contended that these accusations are unconstitutional because the chargesheet makes no reference to whether possession of a pistol constitutes a violation of the Kenya Defence Forces Act or the UPDF Act. Additionally, Lukwago informed the court that Besigye and Lutale had not been extradited or deported from Kenya, where they had lawfully left. Hence, the charges against them were improperly brought before the court-martial.
Uganda leads the field in improperly subjecting civilians to military trials, a practice the country's Constitutional Court has disapproved.
Sorry to say it, but the Supreme Court of Pakistan's dysfunction is on display for all to see. Consider this report from The Express Tribune concerning the long-pending challenge to military trials of civilians.
Global Military Justice Reform's crystal ball is in the shop for repairs, but questions are already being raised in the glass-enclosed newsroom high above Global Military Justice Reform Plaza about what we might expect under the next U.S. administration. Some possibilities:
Scott R. Anderson's timely essay The Real Legal Limits on Domestic Military Deployments is available on Lawfare. Excerpt:
These legal constraints by no means suggest that domestic deployments cannot be abused. Nor do they counteract the psychological significance of even legal domestic military deployments, which may intimidate Americans and chill legitimate exercise of rights. But they do set limits on some of the most abusive ways presidents may try to use domestically deployed soldiers.
As an example, take [President-elect Donald J.] Trump’s recent suggestion that the military should be used to guard against “[r]adical left lunatics” and other “enem[ies] from within” on Election Day—a comment that has been widely criticized as a veiled suggestion that, if reelected, he may well use domestic military deployments to impact elections in 2026 or 2028. Deploying armed and uniformed personnel at polling locations would put those involved in violation of federal law. And any effort to interfere with those elements of election management vested in state authorities by the Constitution—for example, by seizing ballot boxes—would almost certainly be in excess of federal law and thus ripe for a potential injunction.
Of course, these legal restrictions will require litigation and judicial enforcement to be effective. But federal courts can move quickly where needed, including by issuing preliminary injunctive relief that can serve to minimize the harms of presidential abuse pending a final resolution of the underlying legal questions. And as post-2020 election challenges served to demonstrate, the federal courts—and even the current Supreme Court—remain tough terrain for those seeking to curb election results in a way that is clearly contrary to federal law.
* * *
Indeed, understanding these legal limitations could be particularly important for members of the military who may themselves be domestically deployed. The military justice system imposes serious penalties on members of the armed forces who disregard the chain of command, which runs through the military and Defense Department up to the president. But this obligation only extends to “lawful order[s]” and the fact that an order is unlawful can be a defense for refusing to obey. This does not mean that soldiers can employ their own judgment as to what is legal or not in deciding whether to follow or disregard orders, as there is a strong presumption in favor of the president’s interpretation of the law. But where soldiers are presented with an order that clearly runs contrary to widely understood legal limits—particularly where that understanding is backed up by an injunction or other judicial order—they may well have grounds (if not a legal and ethical obligation) to disobey.
The Orders Project's Sourcebook for Advising Military Personnel (3d ed. Aug. 2024) gathers pertinent information on unlawful-orders issues.
Major (r) Navdeep Singh, a longtime contributor to Global Military Justice Reform, is featured in this interview with SCC Times Online's Swastik Singh. "From the Barracks to the Courtroom: Major Navdeep Singh's Legal Crusade" offers fascinating insights into his dedication to the law and law reform both in India and around the world. Excerpt:
What message or advice would you offer young lawyers, especially those interested in military law?
Well first, military law or military related litigation is nothing unique and follows the same principles of jurisprudence as other fields. Especially military service matters these are the same as other service or employment-related matters with constitutional law roots. Hence, I feel young lawyers must explore this field just as other branches of law and should not feel overwhelmed or overawed. It is just as any other field and we need young bright minds in this arena. My other advice is very simple — as lawyers we should never become the mouthpieces of our clients or parties whom we represent, especially when representing instrumentalities of the State. Our duty is to truthfully and ethically assist the court in arriving at justice, everything else is secondary.
The report of the U.S. Court of Appeals for the Armed Forces for the October 2023 Term can be found here. The number of petitions for grant of review is the lowest it's been in the last ten years. A chart on p. 17 shows a substantial increase in the time between oral argument and issuance of the decision.
Data kindly provided by Dr. David Anderson of the Central Legal Staff indicate that the court received 34 cases that were submitted on the merits (i.e., with no issues identified by counsel or personally by the petitioner) and 53 that included only Grostefon issues (i.e., that were personally asserted by the petitioner).
Hitler's Deserters: Breaking Ranks with the Wehrmacht by Douglas Carl Peifer, is now available from Oxford University Press. You can find some excerpts here. OUP summarizes it as follows:
The first English language account of deserters from the German army during World War II
The German military executed between 18,000 and 22,000 of its personnel in World War II on the charges of desertion and "undermining the military spirt." This book examines who these Wehrmacht deserters were, why they deserted, what punishment they could expect, and how German military justice operated. The German army was not apolitical, but rather a pillar of the Nazi state. Although much attention has been devoted to officers within the military who resisted Hitler--particularly those associated with the July 1944 attempt on Hitler's life--far less attention has been paid to those who refused military service or deserted during the war. While providing a full account of what constituted desertion, how it was punished, and how many were convicted for the crime, the book makes the Wehrmacht deserter its main subject. It examines their motivations and the paths they took to evade military service, ranging from hiding in the Third Reich, deserting at the front line, or fleeing to neutral Switzerland or Sweden.
After the Second World War, Germans began a generation-long debate about the status that should be accorded Wehrmacht deserters. The topic would be debated between the two Germanies and engaged survivors and perpetrators, playwrights, and judges, those who had stayed in the ranks and those who had not. Was the Wehrmacht a coward, a victim, or a role model? The book's discussion of this postwar debate has no equivalent in English, as it explains how and why Germany finally decided to overturn military court-martial verdicts from the Second World War fifty years after its conclusion.
Scott Roehm and Ian Moss ask over at Just Security: How Much (or How Little) Does the Biden Administration Want Justice in the 9/11 Case? Excerpt:
In December last year, [Lloyd J.] Austin gave remarks at the Reagan National Defense Forum in Simi Valley, California, titled “A Time for American Leadership.” He said:
As the old saying goes, if you think education is expensive, try ignorance. And if you think American leadership is expensive, consider the price of American retreat.
Over the long sweep of American history, the cost of courage has always been dwarfed by the cost of cowardice.
And the cost of abdication has always far outweighed the cost of leadership.
President [Joseph R.] Biden and Secretary Austin still have an opportunity to demonstrate such leadership in the 9/11 case by simply allowing the outcome that prosecutors, the CA, and the defendants all want. Should they fail to do so, many 9/11 victim family members will continue to pay what has been an increasingly devastating price.
The Kenya Defence Forces will soon be subject to new trial and appellate rules for courts-martial, according to this official report.
Readers of Global Military Jusrtice Reform who are not yet members of the International Society for Military Law and the Law of War will want (in addition to joining the Society) to read this communiqué from Prof. Eric Talbot Jensen, President of the Society's U.S. Group:
Dear Colleague,
I am grateful to have you as a member of the US Group of the International Society for Military Law and the Law of War!
I wanted to let you know about some exciting events we have coming up for members of the US Group.
First, our parent organization is hosting a conference in Abu Dhabi, U.A.E. from December 10th-13th. You can find info on that conference at https://www.ismllw.org/. It should be a great event and an opportunity to meet people from across the globe who are interested in similar issues.
We also have several other events scheduled for the next few months. On November 22th at noon (EST), we have been invited to join our sister Canadian Group of the Society for a presentation by Allen Weiner (Stanford Law School) on humanitarian notification (Zoom Meeting ID: 253 027 085 932; Passcode: mVdfyx). Next, on December 6th at noon (EST) we will sponsor an event on Multinational Perspectives on the Law of Armed Conflict Issues That Confront the New US Administration, which will include voices from the US and its Allies (Zoom Meeting https://byu.zoom.us/j/8014222159; Password – 4LNuNW). Following on January 16th, another panel will discuss the new Virginia-Georgetown Manual Concerning the Use of Force Under International Law: Rules and Commentaries on Jus as Bellum (info to follow). Thereafter we will host a major announcement from the Lieber Institute for Law and Warfare at West Point.
Additionally, we have partnered with the American Society of International Law’s Lieber Society to allow you to interact with likeminded individuals in the international law community as either a mentor or a mentee to build a community of friends and colleagues with similar interests. If you are interested in being involved in this program, particularly as a mentor, please reach out to Laurie Blank at LBLANK@emory.edu.
Finally, if you know of events that are coming up, particularly if they are events that you are sponsoring or involved in, please let us know so we can inform the Group members.
Thanks again for your involvement and we look forward to your continuing involvement in the US Group.
Eric Talbot Jensen
Congress erred when it retained the general category-by-category approach in [28 U.S.C.] § 1259, rather than the more sweeping approach found in 28 U.S.C. § 1254 for federal cases and § 1257 for cases coming up from the state courts. There being no congressional hearing record or report language to shed light on the omissions we have discussed, we can only surmise that the omissions were unintentional. The cases left out may be few in number and pretty arcane, but we urge Congress to now finish the job and open the doors that remain closed to Supreme Court review.
In the days since his reelection, [Donald J.] Trump has issued policy statements from X, which now allows paying subscribers to post up to 25,000 characters – far greater than the old limit of 280. Bracknell expects to see more orders-by-tweet or, more accurately, by X post, in the near future, because Trump has fewer constraints than he did in his first term.“He doesn’t have to worry about electoral politics because he’s in his second term,” Bracknell said. “Second term presidents always have a lot more latitude because the political consequences are attenuated.”
.svg.png)
Army prosecutors have revived over 100 cases of serious crimes. Task & Purpose, 13 November 2024.
The article discusses the OSTC authority to prosecute old cases, a power that significantly impacts the military community. Since December 2023, the office has reopened over 100 cases, each with profound implications for the victims and the military community. One case involved a soldier the Army recalled to active duty to face charges of sexual abuse and rape, a crime that profoundly affected the victims and military community. Another case involved a soldier who was charged with involuntary manslaughter, child endangerment, and negligent homicide after a child died while in his care, another instance with profound military implications.
On such a sensitive matter, the Court is likely to strategically calculate the risks of the fallout of a decision in favor of the complainant. Constitutional Court justices might be concerned that such a decision could inadvertently encourage a legal form of draft-dodging. Thus, the Court is likely to take a restrictive, conservative approach to the understanding of military duty in wartime. It may say that proper recruitment of the armed forces necessitates a limit on the application of the conscientious objection guarantee. It could further substantiate that the term “military duty” in the Constitution envisions only regular draft in peacetime and that, when there is a war, the alternative forms of executing this duty do not apply.
The Court could further ask Parliament to tailor the term “military duty” accordingly in ordinary legislation (e.g. the Alternative Service Act or the 1992 Act on General Military Duty and Military Service). This would, at least, lessen the tension between Article 35 of the Constitution and this legislation. This restrictive approach also is the most practically convenient in times when Ukraine faces a severe shortage of troops.
The UN Human Rights Committee's Nov. 7, 2024 Concluding Observations on Pakistan can be found here. From p. 11 (footnote omitted):
Military courts
42. The Committee remains concerned about the use of the Pakistan Army Act 1952 to prosecute civilians in military courts. It is also concerned about reports that indicate a very high rate of convictions handed down by military courts and that those convicted have been sentenced to death in the majority of cases between 2015 and 2019. It is further concerned that military courts lack independence and that civilians tried in military courts do not benefit from the same due process guarantees as those provided for in the civilian judicial system. While noting the ruling of the Supreme Court of October 2023 that declared the military trial of civilians unconstitutional and contrary to international human rights standards, the Committee regrets that the ruling was suspended and is concerned that the civilians remaining in the military courts may not be released until the Supreme Court issues a final order (arts. 2 and 14).
43. In accordance with articles 14 and 15 of the Covenant and in the light of the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, and recalling its previous recommendations, the State party should take prompt measures to review the legislation on military courts, abrogate their jurisdiction over civilians and their authority to impose the death penalty, and bring their proceedings into full conformity with articles 14 and 15 of the Covenant in order to ensure a fair trial. The State party should also release on bail all civilians detained under the jurisdiction of military courts.
 |
| Pres. Dina Boluarte |
Some analysts have warned that the president's proposal would be unconstitutional.
Criminal lawyer Roberto Pereira said on his X account, formerly Twitter, that the military-police justice system “lacks constitutional jurisdiction to judge crimes that affect the life and integrity of people... there is consolidated jurisprudence from the Constitutional Court and the Supreme Court in this regard.”
Carlos Rivera, a human rights activist lawyer, stated on his social networks that “judging common crimes in the military-police jurisdiction is unconstitutional. Homicide and injuries are common crimes and must be tried and punished by the Judiciary. They are not crimes of military or police function.”
The National Institute of Military Justice (NIMJ) today announced winners and honorable mentions for two annual writing awards in military law.
NIMJ's 2024 Kevin J. Barry Writing Award for Excellence by Practioners and Scholars of Military Law is awarded to Steven Arango for his article "Flawed From the Start: Marine Corps Command-Directed Investigations."
NIMJ's 2024 Rear Admiral John S. Jenkins Writing Award for Law Students is awarded to William Vester of Yale Law School for his academic paper "Military Court Jurisdiction over Civilians: Can the UCMJ be Squared with the Principle of Equality?"
Those awards each come with a $250 cash prize to be presented at NIMJ's next conference.
Honorable Mention for the 2024 Kevin J. Barry Award goes to Lt Col Susan E. Upward for her article "Empaneling 'Fair and Impartial' Members: The Case for Inclusion of an Implicit Bias Instruction at Courts-Martial."
Honorable Mention for the 2024 Rear Admiral John S. Jenkins Writing Award for Law Students is awarded to Johanna Crisman of Duke University School of Law for her article "Protecting Innocence: The Case for a New UCMJ Article on Child Pornography."
More about the Barry and Jenkins awards here. Congratulations to these honorees, whose work stood out among many excellent nominations.
While debating the meaning of extremism is an interesting academic excercise, the bill's text clarifies the types of activities that prevent individuals from serving in the California National and State Guard. That list of prohibited activities, among other things, specifically mentions insurrection. The intent, then, appears for this law to apply to those who participated in the January 6 Capitol attack (or to those who may attempt future violence against the government).
Well, it is Election Day. Hopefully this post is soon irrelevant. God willing, we don't have to deal with another coup attempt, nor deal with the man who encouraged the insurection last time around commanding the military. It would be an interesting developement for him to command our troops again, since one state's National Guard now prevents him from even serving in it.
Professor Espoir Masamanki, founder of the School of Thought in Criminal Law and professor of military criminal procedure at the University of Kinshasa, stressed the importance of this conference. According to him, military justice is often poorly perceived by the population: "The Congolese do not know what is in this justice. They have a very poor perception of military justice. This is why we thought it was necessary to organize a large conference on military justice to communicate on issues of military justice in order to participate in the popularization of this justice which for us, is a normal justice," he declared.
However, a preliminary investigation conducted by Bertin Tshama, a doctoral student in anthropology at the University of Kinshasa, highlights criticism from the public. "There is slowness in the processing of cases before the military justice system. There is aggressiveness in arrests and instructions before the military justice system. There is torture," explains Bertin Tshama.
The strengths and weaknesses of military justice, particularly its two-headed nature in that it judges military personnel and police officers as well as civilians, call for reforms, according to some speakers and law students.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. The African Charter on Human and Peoples' Rights forbids it.
