Chile's Supreme Court of Justice has issued a report on pending legislation that would remove from military court jurisdiction offenses relating to drug trafficking and organized crime. Those offenses will be heard in the civilian courts. The court's only apparent concern, judging by this news account, was that a different approach might be warranted in time of war.
Daniel Maurer writes on Just Security: US Servicemembers’ Exposure to Criminal Liability for Lethal Strikes on Narcoterrorists. Excerpt:
I see only one viable route to a prosecution: President [Donald J.] Trump fails to grant the servicemembers pardons while still in office and a future administration pursues the cases (with no statute of limitations for murder).
* * *
Trump’s order to the military to kill alleged narcoterrorists on boats in international waters without any legitimate legal ground was morally abhorrent. But it also exposes the servicemembers participating in these attacks to a range of criminal punishments under two distinct legal regimes: federal criminal law (under both 18 U.S.C. § 1111 and the war crimes statute); and the UCMJ (murder and other military offenses like “service-discrediting conduct” and “dereliction of duty”). However, the disinclination of federal prosecutors to hold servicemembers accountable for following an order by the President and for which Trump himself is immune makes the prospect of criminal accountability highly improbable. But that should not cloud this simple truth: the President and Defense Secretary issued an illegal order; that order propagated down the chain-of-command; plans were formulated, mission orders were issued, and the targets were destroyed obediently following that original unlawful command. In this way, the commander-in-chief himself has prejudiced good order and discipline within the armed forces, placing U.S. servicemembers in the position of having to contemplate whether they’d escape justice.
After some months' delay, the Supreme Court of Pakistan has finally released the opinions of the 5-justice majority in The Military Courts Case. The opinion of the court by the Senior Judge, Justice Amin-ud-Din Khan, can be found here. The concurring opinion of Justice Muhammad Ali Mazhar can be found here. The earlier-released dissent by Justice Jamal Khan Mandokhail for himself and Justice Naeem Akhter Afghan can be found here.
The court's bottom line is to uphold the trial of civilians by court-martial, albeit with the hope that the government will enact legislation within 45 days affording accused persons the right to appellate review in the High Court. So far as we can tell, no such legislation has been enacted even though the 45-day deadline has long since expired.
George W. Croner has written a timely Just Security piece, Could Trump Use the Uniform Code of Military Justice to Stifle Protected Speech of Military Personnel? One key point requires a little more information. Not all military retirees are subject to the UCMJ -- only those who are covered by Art. 2(a)(4)-(6), UCMJ:
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component, or retired members of the Space Force who qualified for a non-regular retirement and are receiving retired pay, who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
Politico has this piece about the Pentagon's crackdown on hostile social media commentary about murdered Turning Point head Charlie Kirk. Watch this space for major First Amendment issues. Precedent from the U.S. Court of Appeals for the Armed Forces may be an obstacle to disciplinary action under the Uniform Code of Military Justice.
After years of delay, Italian civilian prosecutors have asked for jail sentences in the Giulia Schiff hazing case, after military proceedings against the eight air force accuseds were dismissed. Details in this report from NSM.
Hazing is no laughing matter, yet it keeps happening. BTW, Ms. Schiff is also seeking damages as a civil party to the criminal case.
The Security Wings of Zambia, which happen to have concurrent jurisdiction with the Defence Force, prefer to prosecute cases before them involving members of the Defence Force in the civil courts instead of referring the cases to the military courts. This article reports on the inadequacies in the law regulating the Defence Force, which may be causing this problem, through a case study of the Lusaka urban district Defence and Security Wings, namely the Zambia Army, Zambia Air Force, Zambia National Service, Zambia Police Service, Anti-Corruption Commission and Drug Enforcement Commission. The study findings showed that the Defence Act Chapter 106 of the Laws of Zambia has limitations in that it does not expressly cover the prosecution of military personnel of the rank of Colonel and above. Further, prosecution of serious offences such as murder is difficult because of the lack of legal qualification of both the judge advocate and members of the court. However, limitations of the Military Justice System are not the cause of Civil Security Institutions opting to prosecute members of the Defence Force in Civil Courts; rather, most members of them do not possess much knowledge about military law, and since they have jurisdiction over military officers, they just use their own laws. Key recommendations are that there is a need to amend the Act in order to provide for the prosecution of all ranks by permanent and competent military courts and the need for a Memorandum of Understanding (MoU) between Defence and Security Institutions on the transfer of cases among the Institutions. This will help to preserve the integrity and secrecy of the Defence Force of Zambia and improve relations with Civil Security Institutions.
For the
first time in its history, the International
Criminal Court has begun proceedings against a
defendant in absentia, without the presence of the defendant in the
dock. Ugandan alleged war criminal Joseph Kony has
been under indictment for two decades, but has eluded detention and delivery to
The Hague for legal proceedings. The ICC
judges have decided to move ahead without his participation, with a view toward
getting evidence on the record before it perishes or spoils, or witnesses are
no longer available. Meaningful
proceedings will also increase pressure on regional and international actors to
renew their efforts to capture Kony, while bolstering the court’s credibility
as an entity not to be ignored or stymied.
The most important effect of the Kony proceedings, however, are the
possibility of setting precedent for legal proceedings against defendants
unlikely to be captured or detained for delivery to the court, such as fellow
indictees Vladimir
Putin and Benjamin
Netanyahu.
The
ICC.
The international community enjoyed
years of relative success with international criminal justice, beginning with
the Nuremburg and Far East post-WWII criminal
tribunals, through the various UN-established criminal tribunals, such as
the International Criminal Tribunal for the
Former Yugoslavia. As a result, nations
advocated for the establishment of a standing international criminal court as a
creature of treaty, with jurisdiction over crimes associated with mass
atrocities.
The Rome
Statute established the ICC, sitting in The Hague, and providing
jurisdiction over four categories of international offenses, defined in the
treaty with decades of international law informing their definitions: genocide, crimes against humanity, war crimes
and the crime of aggression. The ICC’s
jurisdiction over individuals depends on the accused being a national of a
member state or the offense occurring on the territory of a member state, plus
the accused’s sovereign demonstrate an unwillingness or inability to pursue the
relevant criminal violation. Non-state
parties can also accept jurisdiction or the UN Security Council can make
referrals to the court (both options very unlikely particularly for permanent
members of the Security Council or their allies).
The United States signed the
treaty, but almost immediately engaged in an international campaign to weaken
it by prior to ratification. Fearful of
U.S. military servicemembers being tried by the ICC as a result of the military
campaign in Iraq that many international commentators believe violated
international law, U.S. diplomats began a drive to negotiate bilateral agreements
with other states wherein the states agreed not to cooperate with the ICC by
turning over US servicemembers for trial, while the US Congress pass the American Servicemembers
Protection Act, further handicapping US cooperation with the court. The US not only did not ratify
the treaty, it withdrew the state’s signature, allowing the US not only not
to cooperate with the ICC, but to work actively against it. By unsigning the treaty, the US indicated it
does not intend to be bound by the treaty, but also is free to work against its
aims, under Article 18 of the Vienna
Convention on the Law of Treaties.
The ICC has issued 61 arrest
warrants resulting in 22 detentions, 33 prosecutions, 11 convictions and 4
acquittals. Thirty indicted defendants
remain at large, including Kony.
Kony’s
alleged activities and indictment.
Kony is
the founder and leader of the Lord’s
Resistance Army (LRA), a rebel terror group based in northern Uganda, whose
activities have branched out into neighboring states, including the Democratic
Republic of Congo, South Sudan and the Central African Republic. The LRA mixed elements of a spiritual
movement with a political one, organized and activated to return political
power in Uganda to leaders from the north of the country. The LRA attacked civilians and fought the
Ugandan army with a misguided and unfocused political agenda, motivated
primarily by the desire to inflict violence and retain the status of its
leaders as cult-like, religious-adjacent warlords. The LRA employed abductions of young men to
serve as child soldiers and young women as targets of rape and forced
marriage. The murders and forced
displacement of civilians numbered in the tens of thousands. The Ugandan military has been an unreliable
partner of western powers in pursuing Kony.
Similarly, the state’s judicial system has proved itself unequal to the
task of administering justice, rarely prosecuting captured lieutenants and
granting amnesty to one key commander in a baffling constitutional ruling. The failure of domestic justice mechanisms is
one essential element in the ICC asserting jurisdiction, on the theory the ICC
will and can do that which domestic processes either cannot or will not, for
various reasons.
The ICC issued an arrest warrant for Kony on July 8, 2005, following his indictment by the court. The prosecution’s charging document details 36 separate counts of war crimes and crimes against humanity from July 1, 2002 to December 31, 2005 in northern Uganda and neighboring regions. He was indicted with three codefendants, all of whom have had their proceedings terminated due to their deaths. Kony has steadfastly eluded capture for over 20 years, despite substantial international effort and pressure to capture him, including US advisory and assistance missions in central Africa.
On review of district court decisions that denied petitions for writs of habeas corpus, the U.S. Court of Appeals for the Tenth Circuit has upheld the exerrcise of court-martial jurisdiction over medical retirees in Wilson v. Curtis, No. 24-3064 (10th Cir. Sept. 5, 2025).
The proposed use of JAGs to adjudicate immigration cases raises many questions, one of which is whether such proceedings would constitute “military trials of civilians.” If they are, they would fit in a category prohibited by both international human rights law and a long line of U.S. cases. (U.S. law permits a handful of exceptions for military trials of civilians, all of which involve a nexus to military activities).
Nearly all persons who appear before immigration judges are civilians, so the remaining question is whether immigration proceedings before JAGs are “military trials.” That raises a challenge of definitions: is a “military trial” defined principally by the military status of the adjudicator or the military nature of the proceedings?
The experience of the U.S. military’s three-year martial law rule over Hawaii after Pearl Harbor helps shed light on this inquiry.
Within hours after the early morning attack on December 7, 1941, the territorial governor of Hawaii Joseph Poindexter issued a proclamation placing the entire territory under martial law and suspending habeas corpus. Lieutenant General Walter C. Short then declared himself the Military Governor of Hawaii.
During martial law, military courts led by military officers oversaw and adjudicated criminal, civil, and administrative matters, including immigration enforcement. “[T]he Army and the FBI moved quickly to round up aliens and other individuals who previously had been investigated and were suspected of being disloyal or dangerous in a war situation.” Harry N. Scheiber & Jane L. Scheiber, Bayonets in Paradise: A Half-Century Retrospective on Martial Law in Hawai’i 1941-1946, 19 U. Haw. L. Rev. 477, 487 (1997).
Military commissions oversaw compulsory registration, compliance with general orders, strict censorship of the press, regulation of gambling and use of alcoholic beverages, traffic and parking, curfew, and even dog leash requirements. “[M]artial law pervaded every aspect of civilian life.” Id.
Another flavor of military courts under martial law were Hawaii's provost courts. These enforced a wide range of regulations and conducted trials for felonies and misdemeanors under both territorial and federal law, which were continued in effect by military orders. The military officers adjudicating provost court cases were harsh enforcers of general orders, including military orders against civilian “chronic absenteeism” and job-switching. Id. Provost court proceedings were noted for their arbitrariness, and an average speed of five minutes for the 22,480 trials convened.
The U.S. Supreme Court eventually struck down the expansive assertion of martial law in Hawaii. Duncan v. Kahanamoku, 322 U.S. 304 (1946). Justice Black’s majority opinion held that times of emergency might permit some resort to martial law, but that constitutional suspension could not last after civilian courts had reopened and were capable of resuming the normal adjudication of civil and criminal cases. In Hawaii, this occurred just months after the martial law declaration.
Justice Black’s opinion reinforced the holding from Ex parte Milligan nearly a century earlier that “civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.” Ex parte Milligan, 4 Wall, 2, 124, 125 (1866).
Military commissions and provost courts in Hawaii adjudicated a wide range of civilian, military, and administrative matters affecting all aspects of life in Hawaii. The experience of Hawaii under martial law supports the idea that a “military trial” is primarily defined by the military status of the adjudicator, not the military subject matter of the proceedings.
