Turning 75

No, not the Editor (been there, done that); the UCMJ. Some Reforms to Consider as the Uniform Code of Military Justice Turns 75 This Spring, over at Just Security.

A landmark decision in Uganda

The Supreme Court of Uganda today decided that civilians may not be tried by court-martial. The case is Attorney General v. Kabaziguruka, Const. Appeal No. 2 of 2021 (per Alphonse C. Owiny-Dollo, C.J.). "The State needs to act in order to ensure that the character of military courts and tribunals meet the democratic standards and aspirations of the people, which are clearly enshrined in the Constitution" [p. 197]. Opinions by other justices will be posted when they become available. 

The Chief Justice offered the following recommendations:

(a) Administratively establish the General Court Martial (GCM) as a division of the High Court without the need to create a new Court, with jurisdiction to handle capital criminal cases involving both military officers and any civilians who would exceptionally fall within its ambit; with Magistrates within the division handling offences falling under their jurisdiction.

(b) Limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offences, with no power of imposing sentences of imprisonment.

(c) Utilize the existing magistracy to handle the rest of the criminal cases (other than disciplinary offences) committed in Uganda (which are currently falling within the docket of the UDCs). The subordinate military Courts can handle criminal cases at the level of Chief Magistrate’s Courts (for offences attracting life imprisonment and below). Or;

(d) With the advice of the Judicial Service Commission (JSC), appoint civilians with the requisite professional legal qualifications to serve as judicial officers in the current subordinate military courts. They would 30 exercise jurisdiction over offences triable by subordinate courts. They should have the same privileges and safeguards as their counterparts in the civil courts. Or;

(e) Amend the Constitution to establish superior Courts within the military Court system under Art 129; and clothe them with the requisite jurisdiction and guarantee of independence and impartiality to try specific military offences of a capital nature and all other capital offences under existing laws, committed by military personnel. Or;

(f) Provide in the UPDF Act for the High Court to sit as a Court martial with power to try all criminal capital offences within the High Court jurisdiction, and those unique to the military that attract a maximum of life and death sentences. Grant the Chief Justice powers to assign Judges to the military courts. A select number of military personnel can act as assessors. Appeals to the Court Martial Appeal Courts would follow the same format, with the Court of Appeal sitting as such. Magistrate’s Courts would assume the jurisdiction over all other offences of a subordinate Court.

(g) Make provision in the UPDF Act for trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by objective and serious reasons, the need and justification for recourse to the military court. This must only apply where in relation to the specific class or category of persons and offences in question, ordinary courts are not in position to undertake such trial.

(h) Make provision in the UPDF Act for appeal from military courts and tribunals, corresponding to appeals in ordinary Courts.

In each of the options suggested above, the jurisdiction UDCs and STAs must be limited to that of tribunals; handling strictly disciplinary offences, with no power of detention or imprisonment, as is the case with other disciplined Forces such as the Police, and Prisons. [pp. 198-200]

Comments on the decision are welcome. Real names only, please.

Mark your calendar

The Supreme Court of Uganda has given notice that it will decide the long-pending challenge to the trial of civilians by court-martial at 9:30 a.m. on January 31, 2025. The Constitutional Court had held years ago that civilians could not be tried by court-martial except if they were accomplices of military personnel. Both sides appealed to the country's top court. Much of the delay is attributable to the government's failure to promptly fill seats on the court that became vacant due to deaths and retirements. Details here and here.

The issue of trying civilians in military court is also pending before the Supreme Court of Pakistan, which has found a variety of ways to put off the moment of truth.

New military law and IHL center in India

The Indian Society of International Law (ISIL) has established a Centre for Advanced Study in International Humanitarian Law and Military Law. ISIL's new Secretary General is longtime Global Military Justice Reform contributor Wing Commander (ret) Dr. U C Jha. Congratulations!

Time's up in Kampala

Isaac Ssemakadde, president of the Uganda Law Society, has written this important op-ed in the Kampala Observer. Excerpt:

Forty-two (42) Justices in the Court of Appeal/Constitutional Court of Uganda and the Supreme Court of Uganda have spent 25 years examining whether section 119(1)(g)(h) of the UPDF Act is inconsistent with Articles 28(1), 126(1), and 210 of the Constitution—in simple terms, whether the trial of civilians in military courts is unconstitutional.

*  *  * 

Due to the Supreme court’s delay in delivering the Kabaziguruka judgment, our Supreme court is now perceived as an enabler of military repression of political opponents, stifling dissent and perpetuating a culture of fear.

For the sake of vulnerable communities like those in Karamoja at risk of continued military repression and human rights abuses, the Supreme court of Uganda must act with urgency and humanity to deliver the judgment in AG v. Michael Kabaziguruka.

It is therefore crucial that our meeting with the chief justice should result in a judgment date, to arrest public anger and curb long-term harm to our judiciary. We are aware that all appellate judges are in retreat in Mbarara from January 13-17, and from February 3-7 they will attend another calendar retreat known as the Judges’ Annual Conference.

Military Justice Reform: Judicial Independence and Military Judges

This essay by His Honour Judge Jeff Blackett, retired Judge Advocate General of His Majesty's Forces, and the Editor can be found here on SSRN.

Abstract

Recent years have seen many improvements in national military justice systems. One that has been successfully embraced by the United Kingdom -- reliance on civilian judges to preside at military courts -- has not been properly explored elsewhere (notably in the United States) but deserves to be. The authors suggest that this fundamental reform can be achieved without detriment to good order and discipline and with the positive benefit of improved judicial independence and stronger public confidence in the administration of justice.

Solid support now -- but not "from the beginning"

“From the beginning,* there was clear Congressional intent, solid support from Army leaders and commanders, and a collaborative effort among Army staff and Judge Advocates to define goals, allocate resources, and establish a clear mission and vision,” [Brig. Gen. Christopher A.] Kennebeck said.

From this Army JAG press release (emphasis added)

* Except that the Army leadership, like that of the other services, opposed the Gillibrand bill that created the special trial counsels (footnote added).

DAC-IPAD report on crime victims' rights

The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault ion the Armed Forces has issued its January 2025 Report on Enforcement of Crime Victims' Rights. Executive summary:

The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) studied the enforcement of crime victims’ rights in the military, as codified in Article 6b of the Uniform Code of Military Justice (UCMJ). The DAC-IPAD’s study focused on four issues: (1) a crime victim’s standing to assert their Article 6b rights at the trial court, (2) jurisdiction of the Court of Appeals for the Armed Forces (CAAF) over a crime victim’s petition for a writ of mandamus, (3) the time frame for the Courts of Criminal Appeals (CCAs) of the Military Departments and the CAAF to rule on a crime victim’s petition for a writ of mandamus, and (4) the appellate standard of review applicable to a crime victim’s petition for a writ of mandamus. 

As part of its review, the DAC-IPAD compared the enforcement mechanisms in Article 6b with those in the federal Crime Victims’ Rights Act (CVRA), the statute upon which Article 6b is based. In doing so, the DAC-IPAD identified several differences between the enforcement mechanisms of the two statutes and considered whether there were military-specific reasons why the rights of crime victims in military courts-martial proceedings should be less robust than the rights of crime victims in federal courts. To help evaluate these differences, the DAC-IPAD heard the perspectives of military government and defense appellate counsel, military victims’ counsel, and civilian victims’ rights experts. 

The DAC-IPAD recommendations include a legislative proposal incorporating several amendments to Article 6b. T hese amendments would provide crime victims new standing to assert their rights initially at the trial court and would provide a new standard for appellate review of a victim’s petition for a writ of mandamus that is similar to the standard directed by the CVRA in federal court review of victims’ petitions. In addition, the DAC-IPAD recommends that Congress amend Article 6b to provide CAAF discretionary jurisdiction to review a victim’s petition for a writ of mandamus without the need for the victim to rely on certification from the Judge Advocate General of a Military Service to establish jurisdiction. 

Adopting these reforms will bring much-needed clarity and meaningful effect to victims’ rights established by Congress ten years ago and will more closely align the rights of crime victims in military courts-martial with the rights of victims in federal court.

Uganda and misuse of its court-martial

The Independent has this fine report on Uganda's misuse of its court-martial and the paralysis in its Supreme Court, which seems unable to bite the bullet about the impermissibility of trying civilians (including retirees such as Dr. Kizza Besigye) in military court. The article includes a useful summary of developments in other countries.

The Orders Project joins NIMJ

The Orders Project was founded in 2020 to help connect military personnel with questions about the lawfulness of orders with civilian attorneys who can advise them. On Friday, The Orders Project became part of the National Institute of Military Justice, a Washington-based NGO established in 1991. Information about The Orders Project can now be found here. Military personnel seeking a referral and attorneys, law firms, and law school clinics willing to receive referrals should contact The Orders Project.

Yes, counsel can discuss procedural developments at a press conference

A Spanish military court has refused to punish an attorney who discussed procedural aspects of a pending military prosecution at a press conference. According to this El Mundo report, it's a matter of free speech and opinion and the right to information.

What happened to military personnel involved in Jan. 6?

And what will happen if they are pardoned? Military.com has this detailed account by Konstantin Toropin, Thomas Novelly, and Drew F. Lawrence. They write: "The military has already been slow to deal with troops charged with and convicted of crimes during the attack: The Navy and Marine Corps still have Jan. 6 participants serving in their ranks. But [President-Elect Donald J.] Trump's promise to issue pardons has put the services in a further bind."

Can an officer end military jurisdiction by resigning?

That question is likely to reach the Supreme Court of the Philippines. Details here.  Excerpt:

Malacañang on Thursday maintained that the court martial has “continuing” jurisdiction over Senator [Antonio] Trillanes IV, as the opposition lawmaker battles President Rodrigo Duterte’s order to the military to arrest him.

Duterte earlier this week issued Proclamation 572 voiding the amnesty given to Trillanes for taking part in uprisings in 2003 and 2007 against the administration of then president Gloria Macapagal-Arroyo.

Trillanes questioned the proclamation, saying the military no longer has jurisdiction over him and that his amnesty application went through the proper process.

Presidential Spokesperson Harry Roque said the voiding of Trillanes’ amnesty “means his status now will be his status before the granting of amnesty.”

“In view of this, the Armed Forces of the Philippines has stated that the court martial proceedings against Senator Trillanes will continue. As some of you may recall, he was charged both for offenses tried before civilian courts and service-related offenses that are punished under the Articles of War. The Court Martial has continuing jurisdiction over violations of the Articles of War. Violations of the Articles of War cannot be tried by civilian courts,” Roque said in a statement.

“As to the fact that Senator Trillanes resigned from military service, the act of resignation does not undo the violations of the Articles of War that he committed while he was in military service.”

Good questions from the bench

The Constitutional Bench of the Supreme Court of Pakistan asked some penetrating questions in the Military Courts Case. For example:

Justice Musarrat Hilali also expressed doubts, stating, “The officer conducting the trial does not deliver the verdict. Instead, the case is forwarded to a senior officer who decides without hearing the trial. How can someone uninvolved in the hearing deliver a fair decision?”

Justice Jamal Mandokhail remarked, “I have spent 34 years in this field and still do not consider myself fully accomplished. Does the military officer conducting trials have the necessary experience and expertise to deliver a death sentence?”

Defence counsel Khawaja Haris responded, stating, “The procedure for military trials will be fully explained in the second part of my arguments.”

Justice Mandokhail further observed, “The Army Act applies solely to the military. We must consider whether military officers are afforded basic rights and justice.”

Justice Musarrat Hilali raised a critical question, asking, “Please also clarify who writes the decisions in military courts. To my knowledge, the case is heard by one officer, but the punishment or reward is decided by the commanding officer. How can someone who has not heard the case decide the outcome?”

The Ministry of Defence's lawyer explained, “The decisions are written with assistance from the Judge Advocate General (JAG) branch.

A heavy news day

There is so much to report today that this post will simply offer links. Three items of particular interest to readers of Global Military Justice Reform:

• The UK Independent Inquiry Relating to Afghanistan released a great deal of sanitized information on Wednesday. A video statement by the chairman, Rt. Hon. Lord Justice Sir Charles Haddon-Cave (at left), can be found here. Mark Landler's report in The New York Times is here. It is hard to imagine that the inquiry will not lead to criminal proceedings. The UK is far from alone in coming to grips with war crimes issues (see, e.g., the pending nomination of Pete Hegseth to be U.S. Secretary of Defense).
• A Korean Colonel of Marines was acquitted by a three-judge military court on charges of insubordination and defaming superiors. Choe Sang-Hun, also of The Times, reports here. It's complicated!
• The Times's Carol Rosenberg, doyenne-for-life of the Guantánamo press corps, has this useful explainer as the detention facility "heads into its 24th year with no end in sight," according to the headline. Among her questions: do we know how much Guantánamo costs?

Ensure parity of punishment for same offence: Delhi High Court

The Delhi High Court, in a recent judgment has held that troopers/members of different Central Armed Police Forces (CAPFs) cannot be punished with differential punishments for the same offence arising out of the same cause of action.

In the case, for an interconnected offence, a member of the Indo-Tibetan Border Police (ITBP) was merely severely reprimanded while members of the Central Industrial Security Force (CISF) were removed from service.

Citing caselaw on the subject, the High Court observed:

“From a reading of the aforesaid decision, what emerges is that when several individuals are involved in the same incident, parity regarding punishment is to be maintained, which should not be disproportionate while comparing the role of each individual, who are parties to the same transaction or incident.”

The judgment and a detailed exposition on the case has been reported by Verdictum and can be accessed here.

Administrative stay in 9/11 pretrial agreements case

The U.S. Court of Appeals for the District of Columbia Circuit yesterday granted an administrative stay of proceedings in the 9/11 military commission case to afford it time for briefing and argument on the government;'s petition for mandamus or prohibition. The court's order in In re United States, No. 25-1009, states in part:

FURTHER ORDERED that proceedings before the Military Commission concerning pretrial agreements entered into by Khalid Shaikh Mohammad, Walid bin ‘Attash, and Mustafa al Hawsawi be administratively stayed pending further order of the court. The purpose of this administrative stay is to allow the court time to receive full briefing on the mandamus petition, to hear oral argument on an expedited basis, and to render a decision on the petition and stay motion. The administrative stay should not be construed in any way as a ruling on the merits of that petition or motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024). It is

FURTHER ORDERED that any responses to the mandamus petition, not to exceed 7,800 words, be filed by 5:00 p.m. on January 17, 2025. See Fed. R. App. P. 21(b); D.C. Cir. Rule 21(a). Respondents are encouraged to coordinate and, if possible, to file a joint response. Petitioner may file a reply, not to exceed 3,900 words, by 5:00 p.m. on January 22, 2025. The parties should also file, by 5:00 p.m. on January 17, 2025, a joint appendix containing any transcripts and documents cited by the parties and not already submitted as attachments to the petition. The parties are directed to file eight paper copies of the petition, any responses, any reply, and the joint appendix. The copies must bear the appropriately colored covers. See Fed. R. App. P. 32. The parties will be informed later of the date and time of oral argument.

Disorder in the court

More video of the proceedings of Uganda's court-martial can be found here. The Minister of Justice and Constitutional Affairs is critical of the recent contempt sentence summarily meted out to a defense attorney.

New chief defense counsel for Mexican armed forces

Brigadier General of Military Justice Mariana de la Cruz Sánchez has become head of the Military Public Defender's Office of the Mexican Ministry of National Defense. Congratulations! Details here.

Proceedings of the second International Military Justice Forum

Contributions to the 2d International Military Justice Forum (Stellenbosch 2023) have been published in the Revue Internationale de Droit Pénal. You can them here.

The 9/11 Pretrial Agreements Case

The United States has filed a petition for mandamus and prohibition with the U.S. Court of Appeals for the District of Columbia Circuit in the 9/11 pretrial agreements case, In re United States, No. 25-1009, following the decision of the U.S. Court of Military Commission Review. Carol Rosenberg has the story here. The case is being super-fast-tracked since a hearing on the accuseds' pleas is scheduled for Friday.

Video of Besigye case in Uganda

A video report on events surrounding the current court-martial of Dr. Kizza Besigye in Uganda can be found here. Many would-be spectators were excluded. Additional video here. One defense attorney was summarily sentenced to nine months in prison for contempt of court.

Sen. Warren's questions for SECDEF nominee Hegseth

Sen. Elizabeth Warren's Jan. 6, 2025 letter to SECDEF nominee Pete Hegseth can be found here. Her press release can be found here.

Caribbean Spandau

In the end, Spandau Prison in Berlin held a single prisoner, Rudolf Hess. As of today, there are 15 prisoners at Guantánamo. As Carol Rosenberg writes, all but six are either facing military commission trials or have been convicted. That means there are only nine people simply being detailed. For a remarkable obituary, in case you missed it, consider this account (also by Ms. Rosenberg) of the life of Tina S. Kaidanow, the U.S. negotiator who died late last year.

Kenyan attorney to represent Dr. Besigye in Ugandan court-martial

The Uganda Law Council has granted Martha Karua, a leading lawyer in Kenya, a temporary practicing certificate that will allow her to represent two civilians, Dr  Kizza Besigye and Obeid Lutale, in Uganda's general court-martial. Details here. The trial begins today.

Still no word from the country's Supreme Court, which has before it a case that will decide the validity of the statute that permits civilians to be tried by court-martial.

Pakistan's Military Courts Case adjourned until Wednesday

The Supreme Court of Pakistan's Constitutional Bench finally commenced its hearing on the Military Courts Case. It seems not to be going well for the government. And leaders of the Lahore High Court bar think the entire Supreme Court should be hearing it. We'll keep following this critical litigation. The hearing resumes on Wednesday.

Should a foreign attorney be permitted to practice before a Ugandan court-martial?

That question will be decided on Monday by the Uganda Law Society. Details here. The attorney's application for a practice certificate had previously been denied for technical reasons.

11 years!

January 14 will mark, amazingly, the 11th anniversary of Global Military Justice Reform. The Editor will spare readers the data this time around. Suffice it to say that the blog is read around the world. The posts keep going up, with smart offerings from our many contributors. Heartfelt thanks to them, co-editor Rory Fowler, and everyone who has commented (well, not those who pester the newsroom with spam and anonymous comments).

Thanks to each and every one of you. Keep the posts and comments coming. Please recommend Global Military Justice Reform to friends, colleagues, in-laws -- anyone who may have an interest.

Things to watch for this year:

• Decisions in Uganda and Pakistan on the permissibility of trying civilians in courts-martial
• Third International Military Justice Forum in Paris
• DoD and congressional response to December 2024 Comprehensive Review and Assessment of the UCMJ from the Military Justice Review Panel
• Further appellate review of the disputed plea bargains in the 9/11 Military Commission at Guantánamo
• U.S. Supreme Court action on the Wheeler certiorari petition challenging the constitutionality of the "short-martial"
• Continued litigation of the constitutionality of subjecting U.S. military retirees to trial by court-martial
• Military justice initiatives from the incoming Trump administration
• Parliamentary response to the Supreme Court of Canada's decision in R. v. Edwards

Have we missed something big? Please add it via the Comment function (real names only, please).

Miitary Courts Case hearing

The Supreme Court of Pakistan's Constitutional Bench will hear the intra-court appeals in the Military Courts Case on January 7. 2025.

Quagmire in Pakistan

Noor Ul Huda writes helpfully here for Jurist about the frustrating state of play in Pakistan's Military Courts Case. Excerpt:

Concerns have also been raised regarding the fairness of the military trials. A lawyer named Shafqat Awan, who represented PTI protestors in the Pakistan Air Force Base Mianwali attack, stated that a judge had dismissed a related case due to false evidence. Despite being released by the trial court, two of these individuals were subsequently sentenced in military courts. This raises questions about how procedural fairness can be ensured. Moreover, it appears that different individuals are subjected to different judicial processes; some are tried under anti-terrorism laws while others face military courts under the Army Act of 1952 and the Official Secrets Act. It is unclear how serious offences like attacking military installations fall under the Official Secrets Act, which is primarily intended to address espionage and the unauthorized disclosure of classified information, as previously came under discussion during the Cypher Case of former Prime Minister Imran Khan.

Herein of mortal enemies, last sentinels, and zealous champions

The U.S. Navy-Marine Corps Court of Criminals ended 2024 with a bang. The unanimous decision in United States v. Negron, No. 202300164, a high-profile unlawful command influence case, makes lively reading.