U.S. Army OSTC "reachback" program

In a November 2024 public announcement, the Army Office of Special Trial Counsel (OSTC) highlights significant efforts to "reach back" and prosecute retirees and active-duty members for alleged serious offenses that have previously gone unprosecuted.

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.

Conscientious objection in war-torn Ukraine

The question is now before the Ukrainian Constitutional Court. Just Security has this analysis by Andrii Nekoliak. Excerpt:

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.

Veterans Day 2024

Human Rights Committee's "Concluding Observations" on Pakistan

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.

Transparency -- or not

The Office of Military Commissions still has not released the text of the military judge's ruling earlier this week reinstating the 9/11 defendants' plea agreements. The delay is preposterous and ought to be the subject of outrage by the media and the bar.

Postscript: the hard copy became available later in the day. You can find it here.

Guantanamo judge upholds 9/11 plea deal

A military commission judge at Guantánamo has upheld the 9/11 plea bargains that Defense Secretary Lloyd Austin tried to overrule. The judge's decision is not yet available, but Carol Rosenberg of The New York Times has a detailed account here.

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.