60 more civilians sentenced in Pakistan

Dawn reports here on the sentences meted out to anther 60 civilians by Pakistan's military courts. A decision on the validity of all of these cases by the Supreme Court cannot come too soon.

Supreme Court review of military courts in Israel

An article by Yotam Berger, From Uniforms to Robes: Unveiling Judicial Review Practices of the Supreme Court of Israel in Cases Adjudicated in Military Tribunals, in the Emory International Law Review, describes the work of the Supreme Court of Israel in appeals from the Court-Martial of Appeal (CMA) and the Occupied Territories Court of Appeal (OTCA) from a comparative perspective. Concerning CMA cases (footnotes omitted):

If issuing a cert could be viewed as an intervention (since it allows the parties to relitigate the case as if it was an appeal) then the Supreme Court was far keener to intervene in CMA cases compared to the OTCA cases it reviewed over the examined period. The Court granted a cert in nine out of sixty requests. Over the same period of time, the Supreme Court held eleven hearings for cases that were previously litigated in the CMA and were granted a cert – nine in which a cert was issued during the examined timeframe, and two others in which a cert was granted before January 1, 2002 (since a few months could pass from the day a cert has been issued to the day the hearing was held). Of these eleven cases, the Supreme Court eventually reversed a decision made by the CMA in six cases – three of which seemingly without the preapproval of the army. 

Dési Bouterse reported to have died

Former Suriname President Dési Bouterse is reported to have died. He was a fugitive from justice, having never served time in prison despite having been convicted of murder by a military court and sentenced to 20 years' confinement. The New York Times has this obituary. Longtime Global Military Justice Reform contributor Brig. Gen. (ret) Jan Peter Spijk wrote about the final stage of the case here.

Military Courts Case docket

The Pakistan Kanoon Supreme Court Law Review web site has this useful online docket for Khawaja v. Federation of Pakistan (The Military Courts Case).

Best wishes from the glass-enclosed newsroom high above Global Military Justice Reform Plaza

December 2024 Military Justice Review Panel report

The Military Justice Review Panel's Comprehensive Review and Assessment of the Uniform Code of Military Justice (Dec. 2025) is available here. The Panel writes at pp. 1-2:

The swift pace and broad scope of changes to military law since 2016 have left the Department of Defense (DoD) and Military Departments struggling to promulgate Service regulations, train counsel, and track compliance with new rules and authorities. Moreover, insufficient data collection, management, and analysis have prevented a full understanding of the impact of recent changes. Aware of these challenges, this Comprehensive Review identifies discrete issues for improvement, highlights areas requiring additional study, and makes recommendations to ensure that the Services operate a just, efficient system of military justice that strengthens national security while promoting good order and discipline. The MJRP found that recent reforms intended to increase trust and transparency have, in some cases, instead done the opposite. The extent of change and the complexity of the new systems that govern the investigation, prosecution, and adjudication of reports of sexual assault, sexual harassment, domestic violence, and other “covered” offenses have made coordination and analysis more difficult for commanders and judge advocates alike. This Report seeks to strike a balance between allowing the new system to fulfill its promise and the imperative to promote and sustain discipline, efficiency, and justice in the U.S. Armed Forces.

The Panel's Findings and Recommendations can be found on pp. 2-7.

Steve Vladeck on the "short-martial"

Global Military Justice Reform contributor Prof. Steve Vladeck's One First substack is must reading about the Supreme Court of the Uniuted States. Today's installment, No. 114, History, Tradition, and the "Short-Martial," is one of his best. Excerpt:

I wanted to use today’s “Long Read” to go into a bit more detail about a cert. petition that my co-counsel and I filed on Friday—which asks the justices to take up a constitutional challenge to the military’s novel use, starting in 2019, of mandatory bench trials for an array of serious offenses. The petition presents (what we think is) an interesting test case for the justices’ recent commitment to “history and tradition” in constitutional analysis. Here, the “history and tradition” of military justice unambiguously support a right to be tried by a multi-member panel of fellow servicemembers dating all the way back to (indeed, before) the Founding. And, as noted below, whether there are any circumstances in which Congress should be allowed to depart downward from what had historically been the court-martial’s irreducible procedural minimum, our view is that the Court ought to take up the case, captioned Wheeler v. United States, because the only justification Congress mustered for departing from that history and tradition here was “efficiency.”

Pushback in Pakistan

While everyone is waiting for the decision in the Military Courts Case, there is serious pushback against the verdicts of the military courts. Dawn has details here. Excerpt:

In a statement posted on PTI founder Imran Khan’s account of ‘X’, the former prime minister urged the international bodies to take notice of the “miscarriage of justice committed in the name of military trials”.

“Punishing innocent citizens by acting as judge, jury, and executioner through a military trial, after staging May 9 false flag operation themselves, is a blatant violation of human rights,” Dawn.com reported the PTI founder as saying. It may be noted the incarcerated ex-premier does not personally have access to his account.

Former National Assembly speaker Asad Qaiser, in a statement, highlighted that the trials conducted by military courts failed to meet the requirements of natural justice. “The decisions of military courts are a clear breach of fundamental human rights,” he said. “Justice has not been served in these trials, and we will challenge these decisions on every forum available,” he vowed.

“The Supreme Court’s decision has deeply disheartened us. It is unfortunate to see citizens being stripped of their basic constitutional rights,” he said in reference to a recent decision of the constitutional bench that led to the pronouncement of these convictions. The PTI leader warned that such actions would only deepen the sense of despair and disenfranchisement among people. “When judicial institutions are compromised, public confidence erodes, and a wave of hopelessness spreads across the country,” he stated.

Criticising the state of the judicial system, Asad Qaiser lamented, “At this moment, our judicial system stands paralysed, which is a tragedy for the country.”

Uganda's military courts

Muhammad Kakembo has written this column for The Observer about the long-running dispute in Uganda over the constitutionality of trying civilians in courts-martial. Excerpt:

In a landmark ruling last week, five Supreme court judges unanimously held that military courts were inadvertently established as disciplinary mechanisms for active UPDF members.

This pronouncement arose during the hearing of an unrelated case involving Lt Ambrose Ogwang, a UPDF officer convicted of murder by the Court Martial and sentenced to death. Ogwang’s conviction was overturned by the Court of Appeal, but the government appealed to the Supreme court.

The director of Public Prosecutions objected to the Court of Appeal’s jurisdiction over military court rulings, and the Supreme court upheld this objection. Justice Lillian Tibatemwa-Ekirikubinza, leading the panel of judges, provided clarity on the jurisdiction and role of military courts.

She stated, “The UPDF courts were better placed to address discipline issues within the rank and file of the armed soldiers… It appears to have been contemplated that the UPDF courts should hold soldiers accountable through a parallel judicial framework, distinct from the courts of judicature.”

Her statement, supported by fellow judges Mike Chibita, Catherine Bamugemereire, Christopher Izama Madrama, and Stephen Musota, underscored the intention of the legislature to confine military courts to UPDF-related cases.

The Ogwang decision is not yet online, and it is unclear from the article whether the quoted remarks were simply comments from the bench during oral argument or something in a written decision. The court has under advisement another case that squarely raises the constitutional issue.

Comparative law and military justice

From yesterday's decision in O'Brien v. Minister of Defence & Military Veterans, CCT 14/23 [2024] ZACC 30 (20 December 2024) (footnotes omitted):

[84] In the United States, the Supreme Court in Weiss upheld the renewable appointment of military judges due to historical peculiarities of the constitutional text and context.  Article 1, Section 8, Clause 14 of the US Constitution grants to Congress the power to “make rules for the Government and Regulation of the land and naval Forces.”  Exercising this authority, Congress enacted the Uniform Code of Military Justice (Uniform Code).  In Weiss, the US Supreme Court reasoned that because of these wide constitutional powers, judicial deference is “at its apogee when reviewing congressional decision making in this area” and that only “extraordinarily weighty” considerations would overcome the balance struck by Congress, which, in enacting the Uniform Code, had not specified fixed terms.  It would be fallacious to apply this sort of reasoning to the South African context.  Here, we have strong constitutionally entrenched guarantees of judicial independence for all courts, without exception.  The United States is therefore an improper comparator.

One wonders whether "fallacious" is the right term. Would "unpersuasive" have been better? 

American military trial and appellate judges have renewable three-year terms of office, with escape valves. Federal magistrate judges have eight-year renewable terms.

Does the two-year cooling-off period the Constitutional Court imposed make sense? Presumably, the South African Parliament will act promptly to frame remedial legislation in light of the court's decision.

Comments are most welcome concerning O'Brien and its implications. Real names only, please.

(U.S.) Manual for Courts-Martial changes

https://www.whitehouse.gov/briefing-room/presidential-actions/2024/12/20/2024-amendments-to-the-manual-for-courts-martial-united-states/

Sec. 2. With this order, I hereby prescribe regulations for the randomized selection of qualified personnel as members of a court-martial to the maximum extent practicable, pursuant to section 543 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Public Law 117-263 (10 U.S.C. 825(e)(4)).
​. . .
Sec. 3. Except as provided in sections 4 and 5 of this order, these amendments shall take effect on the date of this order, subject to the following:
. . .
Sec. 4. The amendments to Rule for Courts-Martial (R.C.M.) 908(c)(3), R.C.M. 1205(a), and R.C.M. 1209(a)(1) shall take effect on December 22, 2024, subject to the following:
. . .
​Sec. 5. The amendment to R.C.M. 503(a)(1) shall take effect on December 23, 2024, subject to the following:

Military Justice provisions from the NDAA 2025

It appears the following changes to the UCMJ are about to become law.

Sec. 509. Modification of Authority to Separate Officers When in the Best Interests of the Service.

Sec. 531. Consolidation of military justice reporting requirements for the military departments.

Sec. 532. Term of office for judges of the Court of Military Commission Review.

Sec. 533. Aiding the enemy definition for purposes of the Uniform Code of Military Justice.

Sec. 534. Pre-referral requirements related to sufficiency of admissible evidence.

Sec. 535. Detailing of appellate defense counsel.

Sec. 536. Expanded command notifications to victims of domestic violence.

Sec. 537. Remote appearance before a board of inquiry.

Sec. 538. Extension of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 539. Reimbursement of expenses and property damage for victims of designated offenses under the Uniform Code of Military Justice.

Sec. 540. Removal of marriage as a defense to article 120b offenses.

Sec. 541. Removal of personally identifying and other information of certain persons from the Department of Defense Central Index of Investigations.

Sec. 542. Authority of special trial counsel with respect to certain offenses occurring before effective date of military justice reforms.

Sec. 543. Investigations of sexual assaults in the National Guard. 

Sec. 544. Analysis on the advisability to revise Military Rule of Evidence 513.

A major judicial independence decision from South Africa

The Constitutional Court of South Africa today handed down its landmark unanimous decision in O'Brien v. Minister of Defence & Military Veterans, CCT 14/23. (per Majiedt, J.). The helpful official media summary explains the decision as follows:

On 20 December 2024 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and orders of the Supreme Court of Appeal.

This case concerns the independence of military courts, in particular two military courts of first instance established under the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA), the Court of a Military Judge and the Court of a Senior Military Judge.

The applicant is Lieutenant Colonel Kevin Bruce O’Brien of the South African National Defence Force (SANDF), currently staffed as an Instructor at the School of Military Justice, Thaba Tshwane City Hall, Thaba Tshwane. The first to fourth respondents are the Minister of Defence and Military Veterans (the Minister), the Chief of the SANDF, the Secretary of Defence and Military Veterans, and the SANDF respectively. The International Commission of Jurists (ICJ) was admitted as amicus curiae.

The applicant, a former military judge, challenged, in a counter-application before the High Court, Gauteng Provincial Division, Pretoria (High Court), the constitutionality of sections 101 and 102 of the Defence Act 42 of 2002 (Defence Act) and sections 15 and 17 of the MDSMA (the impugned provisions). The main application was a review application by the first respondent, the Minister, against certain orders made by the applicant in proceedings where he had presided as a military judge, concerning his apprehension about the unconstitutionality of the impugned provisions. The High Court upheld the review relief and dismissed the applicant’s counter-application on the basis that the impugned provisions were constitutionally compliant. The Supreme Court of Appeal dismissed the applicant’s appeal on the basis of mootness. The applicant now seeks leave to appeal in this Court.

Before this Court, the applicant submitted that the matter was a constitutional issue as it concerned the constitutionality of national legislation and the judicial independence of military courts and military judges. The applicant submitted further that a constitutional challenge to legislation that is in operation is a live issue and that therefore the matter was not moot and it was in the interests of justice to grant leave to appeal. In the event that this Court found that the matter was moot, the applicant submitted that it was nevertheless in the interests of justice to hear the appeal, because this case raised important, complex legal questions about the independence of military courts and military judges and because of the broader practical impact that an order of invalidity would have. In respect of the merits, on the power to renew terms of office in terms of section 15 of the MDSMA, the applicant submitted that this power is inconsistent with the principle of judicial independence and is out of step with trends observed in foreign jurisdictions. On the power to remove a military judge upon the recommendation of the Adjutant General according to section 17 of the MDSMA, the crux of the applicant’s submissions were that it is impermissible for members of the Executive to hold the power to exercise discipline over judicial officers without any independent assessment of cause. Lastly, on the power to appoint boards of inquiry in terms of sections 101 and 102 of the Defence Act, the applicant submitted that this power interferes with a military judge’s freedom to hear and decide cases without interference from government, pressure groups, or individuals.

Hard ball in the Supreme Court of Pakistan

The Supreme Court of Pakistan has not only rejected an effort by a former Chief Justice to further delay a ruling in the long-runnng Military Courts Case; it has fined him Rs20,000 for filing a frivolous submission. Details here. The court refused to put off a ruling on the intra-court appeal of the Military Courts Case until after it ruled on a challenge to a constitutional amendment. This suggests that the court is now, at long last, poised to hear a final round of arguments and rule on the merits of the Military Courts Case.

Desertion and draft evasion by Luxembourgish soldiers in World War II

An interesting book chapter by Sarah Maya Vercruysse deals with the consequences of desertion and draft evasion by families of Luxembourish soldiers from 1942 to 1945. Germany invaded the Grand Duchy of Luxembourg on May 10, 1940, placing it under military administration. The Germans introduced compulsory military service in 1942.

Captain Mike Healy

Ever heard of Captain Michael A. Healy (1839-1904) of the U.S. Revenue Cutter Service? This article by Prof. James M. O'Toole tells of his two courts-martial. Excerpt (footnotes omitted):

Not even two court-martial trials—the first in 1890, the second in 1896—diminished the esteem in which most people held him. The transcripts of these trials, now part of the Coast Guard records in the National Archives, show that he had always taken a no-nonsense approach to command, and this could get him into trouble. His punishment of certain members of his crew led to charges of brutality, and full investigations were ordered. On both occasions, he was accused of particularly severe forms of punishment, including “tricing” offenders. This procedure consisted of tying a man’s hands behind his back and then hoisting him up by the wrists until his feet were just above the surface of the deck, leaving him there for about five minutes. Hanging in that position was very painful, and if the man succumbed to the appealing temptation to touch his feet to the deck for relief, his arms were bent further back, and the pain redoubled. This traditional form of nautical punishment was still technically permissible in the Revenue Service, though it had become rare and was soon after abandoned, in part as a result of the graphic testimony in Healy’s trials. Compounding his offense, his accusers maintained, the captain had been drunk on both occasions, a charge that brought supporting protests from temperance advocates on shore, who apparently wanted to make an example of him as part of their general campaign against the use of liquor in the service. He was fully acquitted at the first trial: the whole case had been trumped up, one newspaper reported, by those who “knew nothing” about life in the Arctic and who simply wanted to besmirch the reputation of “a good and faithful officer.”

His second trial in 1896 did not go as well. Stories of abusive treatment of his men persisted, and this time the charges of drunkenness seemed true. On the morning of Thanksgiving Day 1895, while the Bear lay at anchor in Sausalito harbor after having just returned from its yearly Arctic cruise, Healy was “disgracefully intoxicated” and spat in the face of one of his junior officers. Worse, witnesses said, the captain had been drunk repeatedly while in command of the vessel all the previous summer and had even staggered off the dock into the water at Unalaska “to the great mortification of officers assembled at a social gathering.” A sympathetic panel of Revenue Service officers had to find him guilty, and he was punished with removal from command of the Bear. Reprimanded and dropped to the bottom of the captain’s list, he managed to redeem himself by rising to the top again. In 1900 he was given command of a new ship, the McCulloch, but his troubles persisted. While piloting that ship from the Aleutians back to Seattle in July of that year, he apparently succumbed to drink yet again. While intoxicated, he spoke sharply to a female civilian on board; when his men restrained him, he threatened to kill himself. Though he dried out, he had snapped, and an extended psychotic episode ensued: tied up and confined to his cabin, he managed to break the crystal on his watch and made a messy but unsuccessful attempt at slashing his wrists. Once back in port, he was placed for a time in a marine hospital, where he finally came to his senses. Though restored to the captaincy of yet another cutter, he retired from the service in the fall of 1903 and died of heart failure the following summer.

You never know: in 1999, USCGC Healy (WAGB-20) was commissioned. The Healy, an icebreaker, is the U.S. Coast Guard's largest vessel.

What sentence would you have awarded in this sexual harassment prosecution of a battalion commander?

The New York Times reports here that the accused Lieutenant Colonel was sentenced to a $92,000 fine and a reprimand (no confinement, no dismissal). Presumably he'll be docked a pay grade or two in the grade determination process at retirement. Does $92,000 seem like the right financial penalty?

R v Kohlsmith, 2024 CMAC 8 and R v Meeks, 2024 CMAC 9

 Trial Within a Reasonable Time and Characterization of Delay

New Evidence on Appeal, Horizontal Stare Decisis at CMAC, and Fitness of Detention for Administratively Released Service Members

As indicated by my friend and colleague LCol Rory Fowler (ret’d) earlier in this blog, the Court Martial Appeal Court of Canada (CMAC) has been active recently. Three decisions were rendered. My colleague summarized and commented upon the judgment pertaining to Canadian military justice’s jurisdiction over young persons.[1] The present text summarizes and comments on two others: R v Kohlsmith[2], which pertains on the right to be tried within a reasonable time, and R v Meeks[3], that deals with introduction of new evidence on appeal, horizontal stare decisis, and whether detention is a fit sentence for a former service member.

Kohlsmith

Sergeant Kohlsmith was charged on April 2, 2020 with sexual assault and, later, applied twice for a stay of proceedings, alleging a violation of his right to be tried within a reasonable time under paragraph 11(b) of the Canadian Charter of Rights and Freedoms (Charter).[4] The underlying judgment for the two applications regarding delay is not presently available on a public database.

The first application was dismissed by the military judge, who found that the defence failed to demonstrate a sustained effort to expedite the proceedings.[5] The CMAC upheld this decision, finding no palpable and overriding error in the military judge's conclusion.[6]

The second application was also dismissed, despite the delay exceeding the presumptive ceiling of 18 months (see below: “Presumptive ceiling in characterizing delay”).[7] The military judge found that the delay was due to exceptional circumstances and that the Crown had acted reasonably to mitigate the delay. The CMAC again upheld the decision, finding no reviewable error in the military judge's conclusions.[8]

The CMAC dismissed Sergeant Kohlsmith's appeal, finding that the military judge made no reviewable error in either of his decisions regarding paragraph 11(b) of the Charter.[9]

Presumptive ceiling in characterizing delay: The Supreme Court of Canada's decision in R v Jordan[10] guides the determination of whether paragraph 11(b) of the Charter, pertaining on the right to be trial within a reasonable time, has been infringed. The decision sets a presumptive ceiling of 18 months for trial delay, beyond which delay is considered unreasonable. To assess this, the net delay is calculated by subtracting defence delay[11] from the total delay. If the net delay exceeds the ceiling, the Crown must establish exceptional circumstances[12] to justify the delay. If the Crown fails, a stay of proceedings may follow but is rare and limited to clear cases.[13]

Meeks

Sergeant Meeks was found guilty of an assault causing bodily harm against another service member, Private Meadows. The offence occurred in 2019 in Germany where their unit at that time was participating in an international exercise. One evening, the two service members went to town with others for dinner and drinks. At some point, there was a communications lockdown due to a tragic incident that occurred in another European country. Not knowing all the precise details, Sgt Meeks heard information suggesting that a close friend could be involved. Due to the seriousness of the situation, service members began leaving the nightclub. When waiting outside for taxis, Pte Melvin (as he then was) returned to the nightclub to retrieve his cigarettes. Upon Pte Melvin’s return, an argument broke with Sgt Meeks involving pushing, and shoving. To de-escalate the situation, Pte Berthe placed himself between the two individuals but was pushed to the side by Sgt Meeks. Then Pte Meadows intervened. During his intervention he was punched by Sgt Meeks, fell to the ground and kicked in the face by him. Pte Meadows was severely injured.

Harmonization in Nigerian military justice

The Chief Defence Staff (CDS), General Christopher Musa, while speaking at the opening ceremony of conference on Rules of Procedure, Substance Abuse and Sexual Orientation in the Armed Forces of Nigeria in Abuja, said differences in extant Rules of Procedure for administration of justice in the Armed Forces across the Services created inconsistencies in the administration of military justice.. . .

He, however, said given that discipline is the bedrock of the military, the DHQ’s responses to the challenges, especially in relation to how it regulates the conduct of personnel, requires added impetus.

Tarkaa David, DHQ Moves To Harmonise Court Martial Procedures, End Inconsistencies In Military Justice System. Leadership, 16 December 2024.

In dubious defense of Uganda's misuse of military courts

President Yoweri Museveni of Uganda has posted an explanation for his country's continued improper use of military courts to try civilians. As explained here, it doesn't wash:

President Museveni’s stance on trying civilians in the General Court Martial (GCM) raises significant legal, ethical, and practical questions.

While he justifies this practice as a means to address case backlogs in civilian courts and ensure swift justice in gun-related offenses, the implications for the Judiciary and adherence to the rule of law remain contentious.

Mr Museveni argues that the GCM is critical for the stability of the country, particularly in regions like Karamoja, by swiftly addressing gun-related crimes. He describes the military courts as a "reinforcement" to civilian courts, especially where these courts are perceived to be overwhelmed by backlogs.

He emphasizes that individuals who acquire firearms with malicious intent should not benefit from the "slow" processes of civilian courts. The GCM, according to Museveni, is better equipped to handle these cases expeditiously, ensuring public safety and deterrence.

Mr Museveni highlights the role of military courts in regions like Karamoja, claiming they have reduced violence and restored order. He cites the detainment of armed youth as an example of the GCM’s effectiveness in removing dangerous individuals from society.

To mitigate concerns about judicial overreach, the President notes that superior courts have the power to rectify errors made by military courts.

Why not just fix the civilian courts so the backlog is eliminated?

Notes from the courtroom

From this Express Tribune report on the latest hearing session in the Supreme Court of Pakistan's long-running military courts case:

During arguments, Khawaja Haris, representing the Ministry of Defence, highlighted flaws in prior top court rulings.

Justice Mandokhail warned against undermining judicial authority, stating, “Do not demean judicial decisions to the extent of calling them flawed.”

Haris promptly apologised for his phrasing.

Good book? Bad book? But not defamatory

An Italian military investigating judge has refused to charge a retired general (and elected Member of the European Parliament) with defamation on the basis of a book he wrote. The judge reviewed the book and decided it wasn't defamatory. But one might wonder: why is this the business of the military justice system?

"The legal case had undergone several developments: initially the military prosecutor of Rome had requested the archiving , but the investigating judge had ordered the forced indictment , reopening the case. [Roberto] Vannacci's defense, already in October 2024, through his lawyer, Giorgio Carta, had explained: «There is no defamatory intent in the book towards a specific soldier who, incidentally, is not indicated by name and who has never filed a complaint in this regard»."

Details here and here (use Google Translate).

R v J.L., 2024 CMAC 10 - Young Persons & the Code of Service Discipline

The Court Martial Appeal Court of Canada (CMAC) has been busy.  In the course of the six weeks, the CMAC has handed down three separate judgments relating to matters ranging from delay and trial within a reasonable period of time, to applications to introduce new evidence on appeal and the appeal of a sentence in light of concurrent non-disciplinary statutory decision-making, as well as horizontal stare decisis at the CMAC.  My colleague, Dr. Pascal Levesque will summarize two earlier judgments of the CMAC handed down in November, and which address this array of subjects.

The present post will address the judgment of R v J.L., 2024 CMAC 10, handed down at the start of this week, and which concerned the prosecution of a "Young Person" under the Code of Service Discipline.

In Canadian criminal law, the term "Young Person" refers to a person charged with a criminal offence or offences and who was at least 12 years of age, but who is under the age of 18, at the time of the alleged offence(s) (see Youth Criminal Justice Act (YCJA), SC 2002, c1, s 2, definition, "young person"). The term replaced the earlier terminology "Young Offender", which was problematic, not least because the term appeared to presume guilt.

At trial, R v J.L., 2021 CM 2004, the Military Judge rejected an application of Plea in Bar of Trial that argued that the court martial lacked jurisdiction over a young person pursuant to the YCJA and the National Defence Act (NDA), and sought a termination of proceedings.  In the alternative, the accused sought, pursuant to section 52(1) of the Constitution Act, 1982, a declaration that Part III of the NDA (Code of Service Discipline) is of no force or effect with regards to young persons charged with Criminal Code offences as it infringes their right to life, liberty and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter). As a result of that declaration, the applicant sought an order staying the proceedings.

J.L. did not challenge the so-called "Military Justice at the Unit Level" (MJUL) regarding the prosecution of "service infractions" before "summary hearings".

Right to counsel in Indonesia

➢ Examination of suspects

The suspect has the right to be questioned by the military police. This examination is carried out by observing the procedures regulated in law including fulfilling the suspect's rights such as the right to be accompanied by a legal representative or defense attorney, however, in cases of desertion the suspect cannot choose his own legal representative from outside.military, for example, perpetrator A appoints a well-known lawyer who is well-known and has high popularity and high winnings with large fees from outside the military to accompany him in military justice. This cannot be fulfilled because within the military scope it upholds military ethics and discipline regarding respect for the provisions of the agency, where the Power of Attorney The law must originate from the military sphere. [Emphasis added.]

From Juridical Review of the Military Police's Authority in Investigating the Crime of Desertion.

Another day of dilly-dallying

Yes, Virginia, in the Supreme Court of Pakistan. Details here from The Express Tribune. Excerpt:

Justice Jamal Mandokhel [at left] explained that a person in the Army will be subject to military discipline, a person in the Agriculture Department will follow its discipline, and if a person is not in any department, how can military discipline be applied to them? Is it not a violation of Article 8 to subject an unrelated person to military discipline and strip them of their fundamental rights?

Seems like the right question, no? The hearing resumes on Friday the Thirteenth.

Slow, slow justice in Pakistan

The Supreme Court of Pakistan's Constitutional Bench heard argument yesterday in the military courts case. Dawn has a detailed account here. It is baffling that the court seems to have so little sense of urgency. Why can't it bite the bullet and decide the intra-court appeals? It's not a hard case. Whether or not the Anti-Terrorism Court gave reasons when sending civilian defendants into the military court system is a distraction and would only kick the can down the road fror another year.

The Good Officer

Global Military Justice Reform contributor Prof. John C. Dehn's important and timely article has been published in the latest issue of the Brooklyn Law Review: The Good Officer: President Trump, General Milley and the "Necessity” of Constitutional Fidelity, 90 Brook. L. Rev. 1 (2024). Here is the abstract:

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance.

Comments are welcome -- real names only, please.

Can and should Congress stymie executive clemency in war crimes cases?

Prof. Dan Maurer writes here on Lawfare on whether Congress can and should stymie the exercise of executive clemency in war crimes cases. Excerpt:

Misuse of the pardon power by granting clemency to U.S. military war criminals unreasonably risks harm to the civil-military relationship within the executive branch; it may promote (or at least acquiesces to) lawlessness by warfighters during armed conflict; and it dismisses the credibility, legitimacy, and expertise of military professionals managing the investigation, prosecution, and punishment of individuals who not only have a legal and moral duty to protect noncombatants from the dangers of warfare but are specifically trained to do so. The threat of major war never fully disappears, and [Donald J.] Trump’s three war crime pardons (even if not charged as “war crimes”) were a shocking proof-of-concept that legal forgiveness of such categorically distinct crimes can be unjustly used for political gain or unprincipled grounds. To keep these pardons as ahistorical outliers, Congress can and should publicly commit to preventing the dangers created when a president’s pardon power collides with his duties as the commander in chief.

An unfortunately timely essay, worth studying.

Abduction and military trial -- the East African Court of Justice will decide

Dr Kizza Besigye and a colleague have filed a case with the East African Court of Justice charging Uganda and Kenya with colluding in abduction and improper referral to a court-martial. NilePost has the story here. Excerpt:

The petition highlights the unlawfulness of trying civilians in military tribunals and condemns the Kenyan government for failing to uphold its constitutional obligations to protect individuals within its borders.

According to the applicants, the extraterritorial abduction and rendition of Dr. Besigye and Hajji Kamulegyeya undermine the rule of law and democracy, key principles enshrined in the Treaty for the Establishment of the East African Community (EAC). Article 6(d) of the treaty explicitly commits member states to uphold good governance, the rule of law, and human rights.

The duo, who had traveled to Kenya to attend a book launch of prominent Kenyan lawyer Martha Karua, were detained incommunicado upon their forced return to Uganda.

In took a media expose that Besigye was missing in Kenya for the government to hastily arraign them before the General Court Martial in Makindye.

They were and charged with offenses related to security and unlawful possession of firearms and ammunition.

These charges, which carry the possibility of a death sentence, have drawn sharp criticism from human rights organizations and legal experts.

"Military courts in Uganda are inherently biased and lack the independence and impartiality required for fair trials," the affidavit says.

They describe these courts as tools for political persecution and judicial harassment, operating under the control of the military high command and outside the bounds of civilian judicial oversight.

“Military courts are not blessed with adequate security of tenure or financial security to ensure their independence and impartiality from the executive arm of government to which they belong,” they argue.

Separately, the Attorney General of Uganda and the chairman of the general court-martial are facing a motion to hold them in contempt for failing to obey rulings of the Constitutional Court that invalidated the military trial of civilians. Details here.

"Shambolic"

Herewith a link to video about the Kizza Besigye and Obeid Lutale court-martial in Uganda. One of the defense attorneys refers to the proceedings as "shambolic," among other things.

Meanwhile, lawyers in Uganda attempted to confront the country's Chief Justice about why the Supreme Court has still not decided the appeal from the 2021 Constitutional Court decision in Kabaziguruka v. Attorney General, [2021] UGCC 45 (1 July 2021), invalidating the use of courts-martial to prosecute civilians. Video here.

Deployment of military forces for immigration enforcement

Elizabeth Goitein of NYU's Brennan Center for Justice has prepared this excellent primer, published first on Just Security. Hold on to the link -- you may need to refer to this in a couple of months.

Push for soldier access to civilian courts in Bangladesh

There is broad support among veterans in Bangladesh for reforms concerning the armed forces. One proposal of note in this Daily Star report: ensuring that aggrieved personnel can take their cases to the higher civilian courts. A constitutional amendment may be necessary.

Who prosecutes military graft?

Indonesia's Constitutional Court appears to have answered the question in favor of civilian authorities, according to this article in The Jakarta Post. Excerpt:

The Constitutional Court has affirmed that the Corruption Eradication Commission (KPK) has the authority to investigate corruption cases in the Indonesian Military (TNI) until the issuance of a final and legally binding verdict, as long as the KPK was the initial body to bring the case. The court based its decision on a reinterpretation of Article 42 of Law No. 30/2002 on the KPK in a judicial review filed by lawyer Gugum Ridho Putra. Article 42 stipulates that the KPK has the authority to coordinate and manage the investigation and prosecution of an alleged act of corruption conducted by individuals who are subject to a military tribunal and a civilian court. Reading out the court’s decision on Friday, Chief Justice Suhartoyo said Article 42 was conditionally in conflict with the 1945 Constitution, and therefore an affirming phrase was added at the end: "As long as the law enforcement of the case in question is handled from the beginning or initiated/founded by the KPK."

One gutsy attorney

Here is a report on Kenyan attorney Martha Karua's effort to be permitted to appear for Dr Kizza Besigye in Uganda's court-martial. Will the Uganda Law Society give her a practice cerrtificate? Watch for proceedings in the East African Court of Justice.

The Besigye Case

Here is a YouTube video concerning the current military proceedings against Dr. Kizza Besigye, summarized here by Martha Karua, the courageous Kenyan attorney who proposes to represent him in Uganda. The BBC has additional reporting here.

Sex offences in the ADF

The Australian government is taking steps in response to a recent Royal Commission study of sex offences and suicide in the Defence Force. Details here. Excerpt:

Personnel found to have engaged in sexual and related offences including harassment, unwanted touching and “prejudicial” or obscene conduct – whether through Defence’s disciplinary or administrative processes – will need to demonstrate why they too should not be discharged.

Those facing mandatory discharge would be able to challenge the ruling in a formal process triggered by the conviction.

Senator, you are under arrest

Another odd situation is roiling Manila. Senator Antonio Trillanes IV faces military arrest and proceedings under the Articles of War for two long-ago mutinies he is said to have been involved in when he was a junior naval officer. President Rodrigo Duterte has withdrawn the Senator's legislative immunity because he allegedly failed to formally apply for amnesty and admit guilt. The facts are disputed, so stay tiuned. This one's highly political and complicated.

"Soon"

That's when the Supreme Court of Pakistan's Constitutional Bench will get around to deciding the Intra-Court Appeals in the case challenging the military trial of civilians. Having trouble following the ins-and-outs? Here's a helpful, albeit discouraging, Express Tribune article on the current state of affairs. Excerpt:

The court's inability to decide the case has sparked speculation, highlighting an internal conflict within the SC as the primary cause for this delay.

The legal tactics employed by the petitioners seem to have failed to grease the wheels of justice and expedite the resolution of the case.

In December last year, a larger bench led by Justice Sardar Tariq Masood had suspended the SC judgement and allowed the trial of civilians in military courts without announcement of judgement.

After a couple of months of hearing, Justice Sardar Tariq recused himself after objections were raised against Justice Masood. Subsequently, a larger bench led by Justice Aminuddin Khan was formed to hear the matter. The same bench also conditionally allowed the trial of civilians in military courts.

More than a dozen individuals were released after completing their sentence. The bench again referred the matter to the SC committee for the constitution of a new larger bench.

When the bench started hearing, the summer vacation started and the case was adjourned for an indefinite period. Now the bench is expected to resume the hearing soon.

Clear?

Trouble in Manila

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.

Ten Peruvian soldiers condemned for rape committed 40 years ago

Montreal’s La Presse – North America largest french speaking newspaper published this piece on June 19, 2024 (Lima). 

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.

Report on Service Prosecuting Authority casework

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.