Line of duty and military court jurisdiction

Pres. Dina Boluarte

Should military courts have jurisdiction when military or police personnel shoot a civilian? Peru is facing that issue right now. Consider this Associated Press report. There's pushback (excerpt):

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.”

NIMJ Announces 2024 Writing Awards

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.

Combating extremism in the ranks

Last month, Calfiornia passed a measure eliminating the discretion of commanders to retain guardsmen and women who engage in extremist activity. The measure expands upon previous rules that prohibited such activity, but those rules provided commanders discretion on disciplining the offender. The text of the bill can be found here.

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.

Military justice reform conference in DRC

A major conference on military justice and its reform in the Democratic Republic of the Congo has just been conducted in Kinshasa. From this report by Radio Okapi:

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.

But I'm getting married in the morning, Sarge!

The Military Chamber of the Spanish Supreme Court has affirmed the sentence of a sergeant who ordered a subordinate to go to his duty station instead of getting married. Details here.