Unanimous court-martial verdicts (US)

This is a cross-post of a newly available recommendation of the (US) Department of Defense Joint Service Committee on Military Justice.

Joint Service Committee’s Report on the Adoption of Unanimous Verdicts in the Uniform Code of Military Justice in Accordance with Section 536 of the National Defense Authorization Act for Fiscal Year 2024.

An interesting panel discussion

We hope that this session was successful in providing a comparative overview, demonstrating that fair military justice systems are not all the same and that the United States at least might consider the approaches of its key allies as it contemplates further revisions to its military justice system.

From this summary of a comparative military justice panel at the 2025 CLE program sponsored by the U.S. Court of Appeals for the Armed Forces. Other materials from the program can be found here.

R v Colonel Kearney

On 8 May 2025, a court martial sentenced a retired Canadian colonel to a fine of $3,000.00 and a severe reprimand following a guilty plea to a single charge of "conduct to the prejudice of good order and discipline" contrary to s 129 of the National Defence Act (NDA).  The judgment has not yet been notoriously published, but the proceeding was the subject of brief reporting in the news media, including by two reporters who regularly cover matters of National Defence: Murray Brewster of the CBC ("Retired army colonel fined, reprimanded for insulting British senior officer") and David Pugliese of the Ottawa Citizen ("Canadian officer fined $3,000 for derogatory comment about British general").

Colonel Rob Kearney was a former officer of the regular force who retired in 2012, and then returned to service as a member of the reserve force a few years later, in order to serve in senior advisory positions at National Defence Headquarters.  He was then posted to the Allied Rapid Reaction Corps (ARRC) based out of Innsworth, United Kingdom a few years ago.  At the time, he was serving on a 'Class C' period of service as a reserve force officer. [For our American cousins, this is roughly analogous to 'Active Duty' status for an officer of the Reserves or the National Guard.]

According to a Canadian Forces News Release in April 2024, Colonel Kearney was initially charged on 23 April 2024 with five separate charges, each under s 129 of the NDA, with the dates of the allegations ranging from December 2021 to November 2023.  A complaint was first made in November 2023, and following a military police investigation, charges were laid five months later.  However, by the time that a court martial was convened before military judge, Colonel Nancy Isenor, only a single charge was presented.  Colonel Kearney pled guilty to the single charge.  And, while the judgment has not yet been published, and news reports did not indicate whether this was a joint submission within the framework established under the Supreme Court of Canada judgment in R v Anthony Cook, 2016 SCC 43, it appears that this may have been the case.

Shortly after the charges were laid in April 2024, Colonel Kearney, who had been posted to the United Kingdom, was repatriated back to Canada.  he then retired for a second time.

By virtue of subs 60(2) of the NDA, the Canadian Forces retained jurisdiction to try Colonel Kearney by court martial, even though he had retired prior to his court martial being convened.  Former members of the CF remain liable for prosecution under the Code of Service Discipline for any alleged service offence that they are alleged to have committed while subject to the Code of Service Discipline, provided that the alleged offence fell within the jurisdiction of the Code of Service Discipline at the time that it was purported to have arisen. 

In light of the sentence imposed, pursuant to s 249.47 of the NDA, this will not give rise to a criminal record.

Uganda Parliament to consider UPDF Act amendments

The government of Uganda has introduced the Uganda Peoples' Defence Forces (Amendment) Bill, 2025 in Parliament. The measure is intended to respond, in part, to the recent decision of the Supreme Court in Attorney General v. Kabaziguruka [2025] UGSC 1.

The military justice portions of the bill merit close study. It appears to suffer from at least one of the main defects in prior law: subjecting civilians to trial by court-martial. This is barred by the African Charter on Human and Peoples' Rights and strongly disfavored by global human rights jurisprudence.

The bill would give renewable three-year terms to legally-trained court-martial members, whose rulings on legal issues would be binding in unit and divisional courts-martial, but not in the general court-martial. The bill also makes provision for appellate review in the civilian courts.

If the bill passes as introduced, watch for renewed proceedings in the Supreme Court.

NilePost has this report on the bill.

Head of Royal Navy under investigation

The professional head of the Royal Navy, Adm Sir Ben Key KCB CBE is under investigation for an alleged breach of the Values of the Royal Navy involving an extra-marital affair with a junior, female officer. The allegation is unlikely to be dealt with via a Court Martial, which would have probably made him the most senior naval officer to face a Court Martial since Adm Byng, indeed as First Sea Lord he would be senior to Adm Byng. However, instead Key will be dealt with using Major Administrative Action a form of work place discipline administered by the chain of command. Whilst he will be able to instruct a lawyer to write representations on his behalf he will not be able to have legal representation in any hearing/meeting. 

As a single service policy it is hard to see who would form Key's chain of command. The Secretary of State for Defence is likely to be involved but the decision maker is likely to be Key's predecessor as First Sea Lord and now Chief of the Defence Staff, Adm Sir Tony Radakin KCB ADC. In that case, Key can expect little mercy as Radakin is an enthusiastic supporter of the Unacceptable Sexual Behaviours policy which mandates termination of service for those found on the balance of probabilities to have displayed unacceptable sexual behaviour: a lewd remark addressed to person A which offends person B will suffice. 

Key's routes of appeal are limited. He may lodge a Service Complaint, an internal complaints process described a neither 'efficient, effective or fair' in a recent parliamentary report. If he believes he was discriminated against (unlikely in the circumstances) he could bring a claim in the Employment Tribunal. Otherwise his only avenue would be a judicial review. A complicated and expensive process which would see the former professional head of His Majesty's Navy litigating against His Majesty's Secretary of State for Defence. The prohibitive costs and reputational impact of such an action are well known and no doubt relied upon by those who do not wish due process brought into their internal system. 

For an officer like Key whose pension is secure and who will not be reliant on Service accommodation the implications are limited; an ignominious end to a successful career. For more junior ranks though this process can lead to the loss of their home and hundreds of thousands of pounds of lost pay, resettlement and pension. Major Administrative Action is an important tool for the chain of command but those at the top of the chain are beginning to experience the system from the sharp end. It is to be hoped it will lead to some reform. 

ADDENDUM: Meanwhile the BBC alleges Key's likely replacement as First Sea Lord, Gen Sir Gwyn Jenkins KCB OBE RM, has been complicit in the covering up of war crimes by the SAS. If true (the allegations are hotly denied) it would unquestionably amount to a breach of the Values of the Royal Navy, not to mention Misconduct of Public Office and conspiracy to Pervert the Course of Justice. Meanwhile, the former Chief of the General Staff, the professional head of the British Army, Gen (Rtd) Sir Mark Carleton-Smith KCB CBE ADC faces less serious but related allegations of failing to report evidence of the same war crimes. Carleton-Smith denies the allegations.

An insightful article: Disservice to the military Florence Nightingale undone by the Supreme Court (LiveLaw.in)

The portal LiveLaw.in has carried an insightful article authored by Ananya Sharma and Roopan Atwal on the recent judgment of the Supreme Court of India granting veteran benefits to officers of the Military Nursing Service, earlier covered by this blog. The same can be accessed here and is reproduced below:

Disservice to the military Florence Nightingale undone by the Supreme Court

Ananya Sharma and Roopan Atwal

 A SNAPSHOT

A Division Bench of the Supreme Court comprising Justice PS Narsimha and Justice Manoj Misra recently paved the way for the first ex-Military Nursing Service (MNS) Short Service Commissioned Officer (SSCO) to be inducted into the Punjab Civil Services under the Ex-Servicemen (ESM) category (Civil Appeal 5235/2025 Irwan Kour Vs Punjab Public Service Commission & Ors decided on 16-04-2025). Captain Gurpreet Kaur, a retired MNS officer took the Punjab Civil Services (PCS) Examination – 2020 under the ESM category, sans the apprehension that an uphill and long legal battle awaited her. It is yet another story that despite women now being an integral part of the mainstream Defence Services, the terminology “Ex-ServiceMAN” has still not been changed into a gender-neutral term, such as “Ex-Servicemember” or “Ex-Service Personnel”, but we will leave that for another day.

Capt Kaur’s candidature for the PCS was rejected by the Punjab Public Service Commission on the ground that being an officer of the MNS, she could not be considered an ESM in terms of some correspondence received from the Kendriya Sainik Board. On the last working day of the then Acting Chief Justice, Justice Ritu Bahri (before she joined as the Chief Justice of the Uttarakhand High Court), a Division Bench of the Punjab and Haryana High Court comprising her and Justice Aman Chaudhary had ruled Capt Kaur to be fully falling within the definition of ESM as per the Punjab Recruitment of Ex-servicemen Rules, 1982 (“State Rules, 1982”). The Bench directed the State of Punjab to appoint her as a PCS officer with notional benefits of service (LPA  636/2022 Gurpreet Kaur Vs Punjab Public Service Commission decided on 03-02-2024).

A private Respondent before the High Court, namely, Ms Irwan Kour, (a retired officer from the Army Medical Corps who had also applied under the ESM category and was appointed as a PCS officer), had impleaded herself as a party before the High Court and challenged the decision through a Special Leave Petition before the Supreme Court on various grounds, including that it had been clarified by the Central Government that the Central Ex-Servicemen Amendment Rules, 2012 (“Central Amended Rules, 2012”) would not cover MNS officers in the definition of ESM, and further, that the directions of the High Court in appointing Capt Kaur would endanger the Appellant’s position as an already serving PCS officer.

THE HISTORY OF MILITARY NURSING SERVICE AND THE UNNECESSARY ARTIFICALLY CREATED CONTROVERSY

The MNS has its origins in 1888. The MNS in the current form was raised as an “Armed Force” of the Union of India as part of the Indian Army vide an Ordinance in the year 1943 and is duly recognized as an integral part of the Armed Forces of India. The members of MNS are appointed by the Central Government with a commissioned rank of the Indian Army. The MNS is the only all-woman branch of the Defence Services in India.

Historically, retired MNS officers were provided ESM benefits under the Central Ex-Servicemen Rules, 1979 which defined “Ex-Servicemen” as those who retired or were released on competition of terms from the “Armed Forces” of the Union of India. The pensioners from the MNS from the Permanent Commission Cadre were treated as ESM and so were the SSCOs of the MNS who were compulsorily released after a minimum 5 years of service. However, over the years, the Central Rules were amended and the term “Armed Forces” was replaced with “Regular Army” (See the Central Ex-Servicemen Amendment Rules, 2012/”Central Amended Rules, 2012”) with the purpose of distinguishing Defence Services (Army, Navy and the Air Force) from other Armed Forces, such as the Central Armed Police Forces (CAPFs), such as the BSF, CRPF etc., which are also officially categorized as “Armed Forces” of the Union of India.

Hyper-technically picking on this change in terminology, the Kendriya Sainik Board, which functions under the Ministry of Defence (MoD) issued letters in 2019 and 2021 stating that the MNS officers are not ESM since the MNS did not fall within the “Regular Army”. This despite the fact that in 2014, the same Kendriya Sainik Board had clarified that MNS would, in fact, fall under the definition of ESM. It was only from 2019 onwards that their stance seemed to switch from the logical to the absurd, just because apparently some MNS officers had applied to be appointed for posts under various Sainik Boards. What was interesting to note in this was that the Kendriya Sainik Board has no standing to comment on statutory rules under the Constitutional Rules of Business and is merely a board looking after various welfare activities under the MoD.

Interestingly, as far as the Central Amended Rules, 2012 were concerned, the matter was thereafter taken up by the Chiefs of Staff Committee which is the apex body of the Defence Services, which agreed with an earlier High-Level Committee on the subject under the MoD, on its findings that the ESM status of MNS officers was “well-established”. The observation of the committee was ultimately approved by the Defence Minister. Despite the approval, the Kendriya Saink Board continued to refuse issuance of ESM cards to MNS Officers.

The worst effect of this was on SSCOs of the MNS who now, after their release from MNS in five or more years without pension, became unemployable for civil government jobs since they were now being released on completion of their contractual service in middle age without any reservations or benefits of their military service and without any age relaxation as is applicable to ESM, thus leading to an uncertain future at a time when familial responsibilities are at peak. Military service, hence, became a disqualification rather than a qualification as compared to their peers who joined other services and organizations, and also male and female officers joining branches of the Army other than the MNS who faced no such disqualification. Not only was this discriminatory and illogical, but also highly exploitative of young women who served in the MNS during the times of their lives only to be discarded and left unemployable, having crossed the prime of their lives and rendered ineligible due to age and other criteria due to time spent in the military.

THE CASE AND THE JUDGMENTS OF THE HIGH COURT AND THE SUPREME COURT

The argument of Capt Kaur before the Courts was that Central Amended Rules, 2012 would not apply to recruitments made under the State of Punjab, as the State Rules of 1982 were enacted by the State in exercise of powers under Article 309 of the Constitution, and the State Rules, 1982 which were substantially different than the Central Amended Rules, 2012, provided for the requirement of a person to have served in the “Military” and the “Armed Forces” to be eligible for ESM status, and not the “Regular Army” which was a term used in the Central Amended Rules, 2012. Capt Kaur had also argued, that in any case, the MNS would also very much fall within the definition of “Regular Army” since the branch was recognized by the Army Act as a part of the Regular Army and also by the Defence Services Regulations.

The High Court and the Supreme Court agreed with such contention and rejected the ground urged by the State of Punjab that the clarifications issued by the Kendriya Sainik Board, an advisory body for re-settlement and welfare of retired personnel, would have any bearing over the Punjab State Rules, 1982.

The Supreme Court finally found Capt Kaur eligible to be appointed in the PCS and also clarified that the Appellant’s (Ms Irwan Kour’s) appointment already effectuated would not be affected by the appointment of Capt Gurpreet Kaur, protecting the interests of both the parties.

More importantly, the Court noted that the restrictive interpretation of rules and insistence on denial of ESM status to retired personnel of the Military Nursing Service (MNS) would demoralize the youth from joining the Defence Forces, knowing that their future would be bleak after their eventual release from military service. Such a practice, especially in Punjab, which contributes 7% to the military despite making up only 2% of the population of the country, would, no doubt, be a discouraging exercise.

THE IRONY

Though the MNS is celebrated as a form of “nari shakti” in ceremonies and parades, the irony in the entire episode is the uncalled-for roadblocks created for MNS officers through the years- not because of systemic discrimination by the government, but due to wanton prejudice based on hyper-technical interpretation of rules and contradictory letters issued by various authorities, which the senior hierarchy, despite its good intentions, has not been able to control or curtail, at times even after assurances and orders issued by the highest political executive. Even in the past, pin-pricks have been initiated which resulted in litigation, which seemed more of personality-oriented ego battles. One such issue was denial of salutations, precedence, star-plates corresponding to their military rank, and ancillary respect to the military rank held by MNS officers by other members of defence services. Despite Regulation 733(b) specifically laying down the inter se precedence, policy letters were issued to deny precedence and status to such officers. The regulation runs as under:

“Women officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with male officers of the same titular rank, e.g., a captain (woman officer) in the Army Medical Corps, will rank equally with a captain in the Artillery or Engineers.”

At one time, the rules provided for compulsory retirement of MNS officers if they got married. Examining this issue, the Supreme Court in Union of India Vs Ex-Lt Selina John (Civil Appeal 1990/2019) decided on 14-02-2024, had observed the following:

“This rule, it is accepted, was applicable to only women nursing officers. Such rule was ex-facie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality. Acceptance of such patriarchal rule undermines human dignity, right to non-discrimination and fair treatment. Laws and regulations based on gender-based bias are constitutionally impermissible. Rules making marriage of women employees and their domestic involvement a ground for disentitlement would be unconstitutional.”

Despite the many hurdles in their long path to justice, MNS officers have performed their duty with utmost dedication. In an ideal situation, it was not the MNS officers who should have been fighting for their rights, and a serious thought should have been rendered to resolving their genuine grievances in-house without resort to litigation or adversarial stands in courts. Egotistical stands should have yielded to real camaraderie.

In the crusade against prejudice and gender discrimination, the Constitutional Courts have repeatedly come to the rescue of women and ensured substantive equality in the forces, but more than that, it is the duty of the defence services themselves, and the society at large, to effectively ensure the adherence to the avowed principles our nation stands for.

 ---

Ananya Sharma, a law graduate, is currently working with an American company as an in-house counsel.

Roopan Atwal is a practicing advocate at the Punjab and Haryana High Court.

Pakistan's Military Courts Case decided, 5-2, for the government

The Supreme Court of Pakistan today handed down its "Short Order" decision in Shuhada Forum, Balochistan v. Khawaja, ICA No. 5/2023. By a 5-2 vote, the Constitutional Bench allowed the intra-court appeals in the Military Courts Case and set aside the Oct. 23, 2023 contrary 4-1 decision of a regular panel of the Supreme Court. Excerpt:

vi. In our view, the provisions merely accentuating the right to a fair trial and due process in any statute and its actual application and proper implementation during the trial are two distinct features and situations. If an independent right of appeal is provided in the High Court for challenging the original order or internal departmental appellate order of conviction, then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit.

vii. It is expansively evident from the impugned judgment, including the additional note, that during the original proceedings, the learned AGP, time and again, requested for time to seek instructions from the government on whether an independent right of appeal may be provided to the persons not otherwise subject to the Army Act, who are accused of the offences of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or (ii) having committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or  I.C.A. 5/2023 & connected Appeals otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923 as provided under clause (d) of Section 2 (1) of Army Act, and even in the concluding session on 5th May, 2025, the learned AGP reiterated that if this Constitutional Bench refers the matter to the Government/Parliament to amend the law and create a window of an independent right of appeal over and above the provision of appeal already provided under Section 133-B of the Pakistan Army Act, 1952, that will be respected and considered seriously. In support of this contention, he also cited the judgment of this Court rendered in the case of Jurist Foundation versus Federal Government (PLD 2020 SC 1).

viii. While restoring the provisions of Army Act, that were struck down by means of the impugned judgment in the original proceedings before this Court, we, in unison, sensitize the need of legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework. Therefore, the matter is referred to the Government/Parliament for considering and making necessary amendments/legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/Military Courts under sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952.

ix. Subject to clause (viii) of this Short Order, the limitation period for filing an  appeal by the convicts against their conviction before the High Courts shall be reckoned and applied from the date of notifying the amendments under the Pakistan Army Act, 1952, and their conviction shall be subject to the final outcome/decision in appeal by the High Court.

The Constitutional Bench has thus ruled that if Parliament now provides a right of appeal to the High Court, it was acceptable for the civilian defendants to have been tried by court-martial. 

Justices Jamal Khan Mandokhail and Naeem Akhter Afghan dissented, writing:

For the reasons to be recorded later on, we dismiss these appeals on the following grounds:

(a) The Pakistan Army Act, 1952 (‘PAA’) is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘Constitution’), hence, does not offer fundamental rights to persons under the military discipline.

(b) To the contrary, clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA (‘Civilians’). It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA.

(c) Article 175 of the Constitution provides the establishment and jurisdiction of courts. It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects. The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians.

(d) The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively.

(e) Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process.

(f) The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ("UNHRC’) as well as the International Covenant on Civil and Political Rights, 1966 (‘ICCPR’) and treaties, to which Pakistan is a signatory.

(g) The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution.

2. The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside. They shall be dealt with as follows:

(i) The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law.

(ii) The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure (‘Cr.P.C.’).

The majority's decision is preposterous and flies in the face of settled human rights jurisprudence, which strongly disfavors the trial of civilians by military courts. It also cannot be reconciled with the fact that the last time Pakistan used its military courts to try civilians, it was deemed necessary to amend the Constitution to authorize it -- a temporary amendment that ultimately expired.

This decision is likely to embolden those in Uganda who have resisted compliance with that country's Supreme Court's decision in the landmark Kabaziguruka decision.

A prediction

News accounts this afternoon report Indian attacks on Pakistan in response to a recent attack on tourists in Kashmir. It would not be surprising if this has the effect of delaying a decision in Pakistan's Military Courts Case.

ICJ briefing paper on "a glaring surrender of human rights"

The International Commission of Jurists has just issued a new briefing paper on Pakistan's misuse of military courts to try civilians. You can find the ICJ's summary here. Excerpt:

Proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts:

• Judges are part of the executive branch of the State and continue to be subjected to military command;
• The right to appeal to civilian courts is not available;
• The right to a public hearing is not guaranteed;
• A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied; and
• The procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and details about the alleged offences are kept secret.

The ICJ has urged Pakistan to undertake a comprehensive review of its laws, policies and practices in the administration of justice, with a view to ensuring that military courts only have competency to try military personnel for exclusively military offences. Pakistan should also ensure military courts in no manner have jurisdiction over civilians, including for security-related offences, and military courts should, in law and practice, meet all fair trial standards in accordance with Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The full text of the ICJ's briefing paper appears here.

Decision this week in Pakistan's Military Courts Case

Oral argument has finally concluded in the Supreme Court of Pakistan's Military Courts Case. According to this reprt from Dawn, a ruling is expected to be handed down this week.

U.S. Army Veteran and ICC Prosecutor Eric Iverson Sues Trump Administration over ICC Sanctions

Human Rights First just filed this lawsuit in the U.S. District Court for the District of Columbia challenging the Trump administration's EO 14203 which sanctions the International Criminal Court (ICC) and its senior officials. 

The plaintiff is Eric Iverson, who served as a U.S. Army JAG officer, then for the past 15 years as a prosecutor with the ICC in The Hague. Mr. Iverson's ICC work focuses on war crimes and other atrocities committed in Sudan. 

Defendants are Donald Trump, Pamela Bondi, Marco Rubio, and Treasury Secretary Scott Bessent. 

The complaint alleges that the Trump administration's sanctions against the ICC and its senior officials exceed statutory authority, make it impossible for Iverson to do his job, and violate his First Amendment rights. 

DDC case number 25-cv-01353.

Food for thought on Administrative Discharges

 Rebecca L. Feldmann, Bad Paper & the Problem with Moral Turpitude in the VA Context. 90 Mo. L. Rev. 57 (2025).

Moral turpitude serves as a way to exclude former servicemembers from the U.S. Department of Veterans Affairs (“VA”) definition of a veteran. As a result, servicemembers who commit offenses deemed morally turpitudinous cannot access VA disability compensation, burial in a VA cemetery, education benefits, many types of VA healthcare, or any other of the multitude of benefits offered by the VA. This issue is especially problematic for veterans with “bad paper”—i.e., those with a less than fully honorable discharge—whose underlying misconduct is related to post-traumatic stress disorder (“PTSD”), a traumatic brain injury (“TBI”), or another mental health condition.

This Article explores the problems of using “moral turpitude” to bar former servicemembers, particularly those with an Other Than Honorable (“OTH”) discharge, from VA benefits. It builds upon and supports petitions by a coalition of veterans’ advocates for the VA to amend its regulation to align with congressional intent. The Article expands this discussion by analyzing more recent decisions of the Board of Veterans’ Appeals, which demonstrate inconsistent results stemming from the term’s inherently vague nature combined with a lack of a cohesive framework or any precedential guidance for resolving whether a particular offense involves moral turpitude. The Article also addresses the final rule issued by the VA in April 2024, explores the failuresto resolve the concerns at the heart of the petition for rulemaking, and discusses how 38 C.F.R. § 3.12(d) continues to inject unnecessary confusion into the adjudication of veterans’ benefits, particularly for veterans with an OTH discharge. In concluding, the Article proposes steps that Congress or veterans’ advocates can take to resolve the confusion and arbitrariness that has existed for decades surrounding this bar to VA benefits.

Action On Armed Violence reports on UK MJ

Edward Lander and Iain Overton, UK military justice: a system in crisis? AOAV, 29 April 2025.

The UK military justice system, designed to uphold discipline and address service-specific offences, faces significant challenges, undermining its ability to ensure accountability and fairness for both personnel and civilians. Decades of failed investigations, reduced charges, and lenient sentencing have fostered a system rife with inefficiencies and inequities.

Key findings from Action on Armed Violence (AOAV) reveal an 18% lower conviction rate in military courts compared to civilian courts, with rape conviction rates three times lower. Downgrading of charges—often substituting criminal offences with disciplinary actions—further erodes trust, as does a culture of secrecy and reluctance to report crimes within the ranks. Insufficient evidence frequently hampers court martial proceedings, reflecting both investigative inadequacies and a lack of resources in the military police, whose staffing has fallen 17% in the past decade.

The system also struggles with political interference, delays, and a failure to hold senior personnel accountable. High-profile cases of misconduct, such as those involving UK Special Forces in Afghanistan and systemic abuses in Kenya, expose a troubling pattern of obfuscation and inaction at the highest levels. Victims often face years of waiting with limited support, while those accused endure prolonged investigations with devastating personal consequences.

Recommendations include transferring serious offences like rape to civilian courts, enhancing military police training, ensuring independence in investigations, and holding senior officers accountable. Reform is essential to restore trust, deliver justice, and align the military’s judicial processes with the values it aims to protect worldwide.

What can a military union do?

That is the question before South Africa's Supreme Court of Appeal in a case that is now under submission. Details can be found here. Excerpt:

Earlier the high court held in favour of Sandu [the South African National Defence Union] on all the issues.

These include the banning of demonstrations, presenting of petitions and a military union's right to affiliate to a union federations, and those preventing unions representing members during grievances and disciplinary proceedings.

Co-counsel for Sandu, Matthew Chaskalson, submitted these were among the core functions of a union.

Chaskalson submitted that whatever threat to discipline the defence force might see in regard to affiliation, as the defence force contended, was not well founded.

"It's not justifiable to ban this."

On Tuesday, questions on the justification of a "powerful body within the military outside of military command" was also raised by the bench in relation to affiliation.

Concerns related to conflict of interest by soldiers when they were called by the President for duty during civil unrest situations, which could be supported by other trade federations.

Russian Military Court Sends Russian General To Penal Colony

Ah, strange bedfellows indeed. You know times are indeed "interesting" when a Russian ultranationalist pro-war blogger with three million followers laments Russia's lack of rule of law -- not because of war crimes committed by Russian service members in Ukraine; not due to Russia's violation of the United Nation's Charter in its unlawful war of aggression; and not due to the myriad disappearances and murders that the Russian State has been alleged to have orchestrated over the years.

Nope, this Russian ultranationalist finally misses the good 'ole rule of law because his favorite Russian general has just been sentenced to five years in a Russian penal colony by a Russian military court (hence the nexus to this Global Military Justice Reform site). This general's conviction on corruption charges, per this article, appears to be  retaliation for his criticism of the top Russian brass (and/or perhap his popularity amongst his troops threatens those in power). 

May this case be a reminder that ALL military courts -- by definition those  part of a military justice system under the command and control of the military organization they are nested within, such as in the United States, which operates military courts unworthy of U.S. service members due to the system's lack of independence -- are uniquely susceptible (and frankly, seemingly prone) to transformation to vehicles of persecution instead of legitimate prosecution. 

Government brief in opposition to certiorari in "short-martial" case

The Solicitor General's brief in opposition to the petition for certiorari in Wheeler v. United States, No. 24-678, can be found here.

Betting here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza is that the Supreme Court will grant certiorari--and affirm.

Uganda SITREP

LegalBrief has assembled a useful collection of pieces about Uganda's constitutional drisis, arising from government resistance to the Supreme Court's landmark decision in Kabaziguruka.

Hide and seek at Charlottesville

George Orwell

The following appears on the home page for the U.S. Army's Military Law Review:

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Complaint filed with East African Court of Justice

The complaint, concerning Uganda's use of military courts to try civilians, Besigye v. Att'y Gen. of Uganda, can be found here. 

The court's website is currently unavailable.

Amnesty International statement on Uganda's struggle over military courts

Amnesty International has issued this statement (originally an Al Jazeera op-ed) on Uganda's government's resistance to the decision of the Supreme Court on the use of military courts to try civilians. It's about suppressing dissent. Excerpt:

Following the court order and widespread outcry, Besigye and Lutale were transferred to a civilian court on February 21. Besigye called off his hunger strike. They remain in detention, as does their lawyer. However, their transfer without release, in a process begun by an illegality, remains flawed. Despite the transfer of their case, scores of more civilians have their cases still pending before military courts, with little hope that they will be transferred to civilian courts.

For this reason, 11 groups including Amnesty Kenya, the Pan-African Lawyers Union, the Law Society of Kenya, the Kenya Human Rights Commission and Kenya Medical Practitioners, Pharmacists, and Dentists Union (KMPDU) call for their immediate release.

As Uganda approaches elections, it is evident that the military courts are now a tool in President Museveni’s shed for use to silence dissent. It is time for Uganda to heed the Supreme Court ruling – for now though, military justice is on trial, too.

Meanwhile, a High Court judge has released on bail a civilian who had been in detention for 1500 days pending trial in the country's court-martial on a murder charge. Details here.

Sorry, he's too busy

Have you noticed the Supreme Court of Pakistan's leisurely pace in The Military Courts Case? Consider this exchange from yesterday (from this Dawn report):

During the hearing, the bench sought clarity on the provision of the right to appeal for those convicted by military courts for their alleged involvement in the May 9 violent protests.

In response, Additional Attorney General (AAG) Chaudhry Aamir Rehman informed the court that Attorney General for Pakistan (AGP) Mansoor Usman Awan was still busy deliberating with stakeholders, which might take another couple of days.

At this, Justice Jamal Khan Mandokhail expressed displeasure over the delay, questioning why such a straightforward issue was not being promptly addressed. Justice Musarrat Hilali also remarked that the AGP only needed to seek instructions and inform the bench of the government’s stance on the right to appeal.

Dunya News has quotes:

Justice Mandokhail asked about the AG’s stance and whereabouts.

The additional attorney general replied that the attorney general would need two to three more days.

Justice Mandokhail expressed frustration, saying, “What kind of joke is this? Why are you unnecessarily delaying the case? Is there no intention of completing it?” Justice Hilali added, “The attorney general himself had said he would only need ten minutes—it was just about discussing the right to appeal.”

Aamir Rehman stated that the attorney general appeared only on court orders, and otherwise, Haris represented the federation.

Justice Mandokhail then questioned, “If the attorney general has already delegated his right to Khawaja Haris, why should we even listen to him?”

With that, the SC adjourned the hearing until tomorrow.

A really strange lawsuit in Uganda

"Now I've seen everything." Consider this report from Kampala, in the aftermath of the Supreme Court's Kabaziguruka decision. An attorney is seeking a judicial order preventing Parliament from debating a pending bill that would permit the trial of civilians by court-martial. The bill is surely unconstitutional, but blocking debate?

Busy court-martial docket in Russian Federation

The Russian Federation's military court docket has been busy, judging by these numbers. Excerpt:

Russia's garrison military courts issued 13,699 criminal convictions against service members in 2024, the highest figure since at least 2010, independent media outlet Verstka reported on April 15, citing official data from the Supreme Court's judicial department.

The surge in convictions in 2024 marks a 76% year-over-year increase, reflecting growing internal discipline issues within Russia's Armed Forces during the country's ongoing full-scale invasion of Ukraine.

In 2023, military courts issued 7,779 verdicts, while 2022 saw 4,191 convictions. Data provided by Verstka dated back to 2010, when the record stood at 8,632.

Ex-Military Nursing Officers are “ex-servicemen”: Supreme Court of India

The Supreme Court of India has held that Military Nursing Service (MNS) officers cannot be denied “ex-serviceman” (“ESM”/veteran) status for re-employment.

A released Short Service Commissioned officer of the MNS, Captain Gurpreet Kaur, had cleared the examination for the Punjab Civil Services in 2021 under the ESM category reservation but her candidature was rejected on the ground that she was not an “ESM”. Aggrieved, she had approached the High Court wherein she pointed out that the MNS was an “Armed Force of the Union” under the statute and the Rules covered Short Service Officers released on completion of terms of engagement with gratuity under the definition of ESM.

The High Court had finally held that MNS is an “Armed Force of the Union” and Punja
b ESM Rules recognise all armed forces officers released on completion of terms with a gratuity as ESM. The State was directed by the High Court to appoint her in civil service with notional seniority.

The High Court judgment was however challenged in the Supreme Court of India.

The top court has dismissed the appeal and upheld the right of MNS officers to be treated as ESM. The Supreme Court has also held that the MNS is an integral part of the military and the Armed Forces.

The MNS is the only all-woman branch of the Armed Forces.

More on the case can be seen at the website of The Tribune.

The conundrum of judicial accountability and independence in military courts from a comparative perspective (book chapter)

Coming soon: https://www.taylorfrancis.com/chapters/edit/10.4324/9781003557852-15/conundrum-judicial-accountability-independence-military-courts-comparative-perspective-arianna-vedaschi-micol-ferrario?context=ubx

From the abstract on the publisher's website:

The judicial accountability and independence of military courts have always been hugely debated, especially insofar as they frequently have links with other powers (mainly the Executive) and are often composed of the military personnel. Through the lens of comparative constitutional law, this chapter explores whether, and to what extent, these issues characterise the military justice systems of major advanced Western democracies. Through the analysis of the Italian case study, the chapter suggests some bolsters that could be introduced in the existing models to ensure that military courts – which are called to adjudicate very complex and sensitive issues – comply with the basic principles of the Judiciary that must characterise all the legal systems based on the rule of law.

Uganda: defiance of Supreme Court decision

The government of Uganda is moving forward with a bill that could unravel the recent decision of the Supreme Court barring military trials of civilians. Opponents say they will fight such a measure "every step of the way."

Israeli reservists and retired officers sign letter of protest over conduct of Gaza War

The New York Times reports that hundreds of Israeli Air Force reservists and retirees signed a letter protesting the conduct of the war in Gaza. 

Signatories include a former chief of staff and former senior military leaders. 

The Israeli prime minister's office rebuked the statement, saying it weakens the country while at war. Reservists who signed the letter while of active duty would be relieved. 

The letter urges that Israel's renewed war effort in Gaza following a creaky ceasefire endangers Israeli hostages, and that all efforts to protect the hostages, including ending current bombardments, should be employed. 

This is an unusually large display of dissent that lays bare the current tension between the Israeli military and political leadership.

New Zealand Defence Force and COVID-19 Policy

On Friday 11 April 2025, the Supreme Court of New Zealand (SCNZ), New Zealand's apex court, handed down its judgment in Chief of Defence Force v Four Members of the Armed Forces, 2025 NZSC 34 [CDF v Four Members].  The judgment concerned an appeal of a judicial review of elements of the New Zealand Defence Force (NZDF) policy on compulsory vaccination against COVID-19. 

A summary commentary was offered by the "The Post", a metropolitan newspaper published in New Zealand's capital, Wellington: "Defence Force wins vaccine battle in Supreme Court".

Notwithstanding that the global pandemic subsided many months ago, this judgment remains pertinent for a variety of reasons, particularly for countries that share an Anglo Common Law tradition combined with the unique Crown-soldier relationship found in the United Kingdom, Canada, Australia, and New Zealand.  (And the relevance extends beyond the fact that those four countries spell "defence" correctly.)

As a Canadian, this judgment is particularly informative in light of the similarities that can be drawn not only between the legal regimes of Canada and New Zealand, but also in how COVID-19 vaccination policies were promulgated in the armed forces of those two nations.  Unlike what transpired in New Zealand, litigation concerning the COVID-19 vaccination policies in the Canadian Forces (CF) did not reach our apex court (or even the Federal Court of Appeal).

In Canada, although there were attempts to challenge the CF's policy regarding vaccination against COVID-19, the notable examples consisted principally of premature attempts to challenge the policy before the applicants had exhausted the CF grievance process (Neri v Canada, 2021 FC 1443) and an attempt to bring an action on behalf of 330 claimants (but which was manifestly not a class action) that suffered from multiple shortcomings (Qualizza v Canada, 2024 FC 1801).  

There were multiple grievances brought by CF members under circumstances similar to what arose in New Zealand.  Initially, these Canadian grievances benefitted from generally favourable 'Findings and Recommendations' (F&R) from the Military Grievances External Review Committee (MGERC).  However, it appears that the Chief of the Defence Staff (CDS) in Canada largely rejected these F&R.  Unlike in New Zealand, members of the CF did not raise these matters in litigation that reached the appellate level.

Consequently, the judgment in CDF v Four Members is illustrative of what may have arisen in Canada, had select personnel brought the matter before the Federal Court and successive appellate courts. 

The trajectory of this case is also noteworthy.  On first instance, the results of the judicial review before the High Court favoured the Crown.  Churchman J held that that the purpose of the various instruments establishing the vaccination requirement was to maintain the operational efficacy of the Armed Forces in New Zealand by limiting the spread of COVID-19.  That objective was sufficiently important to justify a limitation on the rights to refuse medical treatment and to manifest religion and belief.

Although the New Zealand High Court drew conclusions comparable to similar judgments in Canada, the Court of Appeal reversed that decision.  Although the Court of Appeal accepted that there was sufficient justification for the limits on the rights protected by ss 11 and 15 of the New Zealand Bill of Rights Act [NZBORA] arising from the COVID-19 vaccination being placed in the baseline schedule for vaccinations, it found that the CDF had not demonstrated sufficient justification for adopting the policies described in the relevant Temporary Defence Force Order (TDFO) and related policy instruments.

The Court of Appeal did not find that the whole of the TDFO was invalid.  The appeal had been argued at a level of generality which meant it could not identify specific parts which were valid. It also recognised that time had moved on and other regulatory settings had changed. For that reason the Court directed that the CDF reconsider the TDFO in light of its judgment.

The Court of Appeal faulted the CDF for failing to consider alternative means of addressing the need to maintain the efficacy of the Armed Forces during the pandemic.  The Court of Appeal placed significant weight on evidence that the United Kingdom had adopted a less restrictive approach for its Armed Forces and held that the incremental limits imposed by the TDFO had not been justified. 

The Court of Appeal concluded that the TDFO had not been shown to be a reasonable limit on the rights of the Armed Forces members who had challenged the policy.  The litigation was brought under the NZBORA, and the Court of Appeal had to consider the appropriate remedy.  The Court concluded that the specific policy provisions, standing alone, would likely not raise any concerns under the NZBORA.  The Court also recognised that events had moved on since the TDFO was issued in May 2022.  It concluded that a review of the TDFO was timely, if not overdue.  The Court did not set the TDFO aside but ordered that it be reconsidered in light of the Court’s judgment, reasoning that it would be wrong “to engage in an inappropriately granular way with the performance by the CDF of his responsibilities in relation to the Armed Forces”.  In the meantime, an interim order was made to protect the respondents pending the review.

On further appeal, the SCNZ held that the Court of Appeal failed to afford the CDF sufficient deference (or margin of appreciation) regarding the (temporary) policies implemented to address a global pandemic.  Again, what is noteworthy in this case from a Canadian perspective, is the extent to which the SCNZ relies upon Canadian jurisprudence both in the interpretation of the NZBORA and regarding principles of deference in public and administrative law.

The SCNZ observed that, when reviewing legislation for proportionality and for consistency with protected rights under s 5 of the NZBORA, New Zealand courts usually adopt the structured methodology developed by the Supreme Court of Canada in R v Oakes, [1986] 1 SCR 103 and subsequent cases.  Similarly, when examining deference to statutory decision-makers, the SCNZ relied upon Canadian jurisprudence, including Dunsmuir v New Brunswick, 2008 SCC 9, in addition to domestic judgments and, as in Canada, permitted a relatively healthy margin of appreciation to military decision-makers "... with respect to operational effectiveness and military discipline ...", holding that the "... CDF is the decision-maker appointed under the legislation and likely to be in a much better position than the court to evaluate the relevant considerations."

Though speculative, I suggest that, had CF members sought judicial review of decisions by the Chief of the Defence Staff in Canada, in considering and determining grievances relating to the CF's COVID-19 vaccination policies, the results would likely have been comparable to CDF v Four Members.

This judgment merits review by practitioners who are concerned with statutory decision-making relating to the Crown-soldier relationship in Anglo Common Law jurisdiction, particularly within the context of the deference afforded to such decision-makers and the functionality of judicial review.

The Pakistan Democracy Act

From Friday Times,

The Pakistan Democracy Act was recently introduced in the United States Congress. On the face of it, the bill appears to be a human rights measure. In substance, it is a political document. It attempts to single out Pakistan on the pretext of democratic backsliding and human rights violations. Such bills are not uncommon in U.S. foreign policy practice. But this one comes at a very sensitive time in Pakistan’s constitutional history.

The Supreme Court of Pakistan is currently hearing a set of petitions challenging the trial of civilians through court-martial under the Pakistan Army Act, 1952. This issue has emerged in the aftermath of the events of May 9, 2023, when political protests turned violent. Some protesters stormed and damaged properties associated with the Pakistan Army, including the residence of the Corps Commander in Lahore. The federal government and military authorities have sought to try these civilians by way of court-martial.

The matter before the Supreme Court is of foundational importance. It is not about whether the country is in a state of war or peace. Nor is it about the general legality of the court-martial system. The real question is whether, under the Constitution of Pakistan, civilians involved in acts of political protest—even if violent—can be deprived of their right to a fair and public trial before the ordinary courts of law.

There is no ambiguity in the facts. The individuals being prosecuted are not armed militants or enemy combatants. They are political workers and supporters of an opposition political party. The demonstration, even if it turned disorderly, was political in nature. The attack on the Corps Commander’s residence, though unjustifiable, was not an act against a military installation in the operational or strategic sense. It was not an act of sabotage against a functioning military base. The locations targeted were symbolic representations of military power, not military targets in the conventional legal sense.The idea that such actions justify court-martial is deeply problematic. International human rights law imposes clear restrictions on the use of military justice systems against civilians. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a signatory, guarantees the right to a fair trial before a competent, independent, and impartial tribunal established by law. The UN Human Rights Committee has repeatedly held that court-martial of civilians is not permissible unless strictly required and narrowly limited, such as in situations of armed conflict or direct military engagement.

Another day, another hearing

The Supreme Court of Pakistan is still at it in the Military Courts Case, judging by this report from Dawn. Excerpt:

Justice Hilali remarked during today’s hearing, “How can you talk about fair and transparent trials, [when] decisions are made in military courts under the shade of Kalashnikovs. What problem will arise if the government gives civilians the right to appeal?”

JAGs under fire

The role and independence of the various U.S. JAG Corps are front and center. Here are two timely Lawfare reads:

From Dan Maurer: 

https://www.lawfaremedia.org/article/congress-must-protect-the-role-of-jags-in-the-military

And from Sarah Elaine Harrison:

https://www.lawfaremedia.org/article/a--sweeping-overhaul--of-the-jag-corps-poses-likely-dangers

and in a lighter vein (as well as off-topic) from Salon, this from The Editor:

https://www.salon.com/2025/04/06/one-small-part-of-pete-hegseths-wardrobe-is-a-big-tell/

An inside view of Italian Military Justice

Report Difesa has a lengthy interview with Filippo Verrone (at left), President of the Military Court of Naples and of the National Association of Military Magistrates. Here's an excerpt (Google imperfect translation):

President Verrone, how has the military judiciary changed since the time of military service to today. Has there also been a change in the crimes that were committed before compared to those of today?

Of course, yes. The crimes that were linked to the obligation of military service are no longer there, such as desertion. But there are others.

Our activity is numerically smaller than in the past. Today it has become a numerically smaller job in terms of the number of crimes but qualitatively much more complex both for the type of crimes committed and for all the other aspects, even non-criminal, of an investigation of a conviction, since public employees are involved. Everything must be carefully examined because the work and career progression of the soldier is also at stake.

For this reason there has been a recent legislative intervention: the non-suspension of the soldier from work except by the first degree conviction.

Precisely because a criminal trial for a soldier is something that leaves a mark!

And so from here arises, in my opinion, the need for a special jurisdiction that not only knows the mechanisms of this particular activity, but above all that reaches a decision within a reasonable time.

Will this case never end?

Dawn reports here on yet another day of meandering discussion in Pakistan's Military Courts Case. Excerpt:

The counsel touched upon the status of court martial and explained that the military courts did not fall under Article 175(3) of the constitution that asks for the separation of judiciary from the executive. He argued that the military courts established under the PAA were not subordinate to any high court and therefore did not come under the domain of Article 175(3) of the Constitution.

When Justice Mandokhail asked if the military courts did not come under Article 175(3), then under which constitutional provision would they fall especially when Article 175 exclusively talks about the judiciary.

The Constitutional Bench resumed the hearing today. 

Nevada National Guard

Each (U.S.) state National Guard has some form of military justice statute. The Codes vary from state to state (some states have adopted the ABA Model Code). Enforcement can differ. For example, Delaware conducts a court-martial within the Guard, whereas West Virginia prosecutes "UCMJ" violations in civilian court.

You can find out more specifics per state at NIMJ's "State Codes."

A general review suggests many state UCMJs are out of date. There have been several major changes to the UCMJ over the last five years and the state legislatures haven't caught up.

Nevada National Guard members have fewer legal protections than civilians, most other states’ Guard members, and members of national military branches such as the Army and Air Force.

The right to demand a court-martial instead of accepting certain administrative punishments was taken out of state law in 2019 at the urging of the Nevada National Guard, just four years after it held the opposite position.

. . .

"Currently, Nevada is one of only a few states where National Guard members lack the right to demand a court-martial," Wagar said. "This lack of due process undermines the principles of justice and erodes trust in the military justice system."

 From the Reno Gazette Journal.

Most interesting is the cost estimate for adopting the right to refuse Article 15 punishment, which ranges from zero to $1.2 million for just three courts-martial.

Gray said this shows that the Nevada National Guard’s official estimate to the Legislature of three court-martials a year costing about $1.2 million does not stand up to scrutiny because it’s extremely rare for a military service member to ever request one.

Gray shared a letter he received Wednesday from Maj. Gen. David Baldwin, who has led the California National Guard since 2011. Baldwin wrote that during his more than 40 years in the Guard, he’s been involved with hundreds and possibly thousands of cases where the accused had the option to turn down a nonjudicial punishment in favor of a court-martial — and only one ever did.

We suspect (partly on our own experiences advising servicemembers) that the number of Article 15 turndowns in the active duty force is similarly few.