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.

TT High Court ruling in Coast Guard promotion case

There's been an interesting decision in the High Court of Trinidad and Tobago. At issue is whether stric t seniority governs promotions in the Coast Guard, or whether merit -- here, experience -- can trump it. The decision is not yet on the court's website, but here is a detailed account from T&T Newsday. Excerpt:

In a ruling on March 28, Justice Ricky Rahim quashed the CDS’s decision not to promote Hayden De Four while ordering the Defence Force boss to consider his qualifications, experience and training within 30 days and inform him 14 days after.

The State was ordered to compensate De Four for the CDS’s unfair and irrational actions and breach of his constitutional rights. The CDS and the Attorney General were also ordered to pay De Four’s legal costs.

In his lawsuit, De Four claimed he was unfairly denied promotion to Fleet Chief Petty Officer (FCPO) in December 2022. His attorneys, Arden Williams, Don Marie Adolphe and Mariah Ramrattan, argued promotions in the TTCG were always based on seniority and, as the most senior officer, he had a legitimate expectation of advancement.

Instead, the position was given to a junior officer.

In its defence, the CDS and AG said promotions to FCPO are also determined by experience and not seniority alone. They argued that the other officer was better suited because of his training and experience in the Marine and Integrated Project Team department.

They also contended De Four was never promised a promotion and was not treated unfairly.

Executing Humphrey's Executor

Students of military justice will want to consider this paragraph from p. 53 of Judge Patricia A. Millett's dissent from today's decision of the U.S. Court of Appeals for the District of Columbia Circuit in Harris v. Bessent, No. 25-5037:

    Agencies are not the only entities at risk under the majority opinion’s new regime. Given the primarily adjudicatory nature of the MSPB and the NLRB, it is difficult to understand how the majority opinion’s rule does not eliminate removal restrictions on non-Article III judges, including judges of the Court of Federal Claims, the Bankruptcy Courts, the Court of Appeals for Veterans Claims, and the Court of Appeals for the Armed Forces. Apparently all of those adjudicators can now be fired based not on any constitutional decision by the Supreme Court or this court, but simply on the government’s application for a stay citing nothing more than the President’s inability to fire those officials as the requisite irreparable injury.

Whither Uganda's military courts?

There's a lively debate going on in Parliament over the proper legislative response to the Supreme Court of Uganda's Kabaziguruka decision. This article from NilePost summarizes the opposition's views, in contrast with those of the government.

Woke military

The Woke Military: A Question of Paternity. Here's Bruce T. Smith's lede on Real Clear Defense: "The woke military is the bastard child of a thousand fathers. Several of those 'fathers' were the ones wearing JAG badges." The author continues:

The simple truth is this: many military Judge Advocates, “JAGs,” whose clients were their respective service branches, either endorsed or failed to prevent the sixteen-year woke assault on the armed services. That’s likely why SecDef [Pete] Hegseth fired the Army and Air Force Judge Advocates General in February.

Whether the failures were those of just a few woke idealogues, scaredy-cat careerists, or members of a wider-spread social justice movement, the responsibility to prevent the politicization of the military rested with the lawyers whose sworn duty it was to counsel adherence to the law.

In this essay, it is not my intention to indict the majority of hardworking, patriotic military lawyers who follow the law every day. Rather, my aim, here, is to scrutinize a small but influential minority of Judge Advocates who put ideology and politics above both the law and their duties to their respective armed services. Whether they acted actively or passively, alone or in small groups, a cadre of woke JAGs throughout the DoD may very well have been the single greatest facilitators of left-driven ideological mischief in the military.

See what you think?

A British court-martial in Boston

In Women in the American Revolution, Dr. Sarah Pearlman Shapiro writes for the venerable American Philosophical Society about records of British courts-martial, including a sexual assault case in occupied Boston in 1775. Excerpt:

Among the rows and rows of microfilm reels at the David Center for the the American Revolution at the American Philosophical Society are the “Courts Martial Proceedings and Board of General Officers' Minutes.” From Gibraltar to Boston, these administrative records detail punishments meted out for infractions ranging from desertion and theft to mutiny and assault. Court martial records provide glimpses into soldiers’ violent behavior and conduct against local women. These instances of assault were not new to colonial women. Rather, these documents contain testimony from women across the spectrum of unfreedom, often omitted in the archive. [Anne] Moore’s recorded experience is emblematic of many women assaulted at the hands of both British and Continental Army soldiers. Even when women were not victims, court martials included the testimony and, therefore, their perspective. Maintaining order within the ranks required interviewing witnesses regardless of status, race, and political affiliation. 

Planning to sue the government for a military client?

President Donald J. Trump has issued this memorandum on Preventing Abuses of the Legal System and the Federal Court to the Attorney General and the Secretary of the Department of Homeland Security. It reads in part:

I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.  In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.

I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.  If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.

What are the implications for court-martial defense counsel and attorneys who represent (or have in the past eight years represented) military clients in proceedings for federal court habeas corpus or other forms of collateral review? 

Advice to Taiwan

The Editor has written this op-ed for the Taipei Times, offering some unsolicited advice on the current proposal to revive courts-martial.

More information about plans to revive military courts in Taiwan

Further information about emerging plans to amend the Military Trial Act and revive military courts in Taiwan can be found here. Excerpt:

“The government would also make major revisions to the part of the previous military court system that was widely criticized and inconsistent with the Constitution. Once reinstated, the military court should be a system allowing fair trials, protecting human rights with due processes and fulfilling the requirements in the constitution, while maintaining order and discipline in the military. Professionals in the military trial system should receive training and adjudicate independently,” [spokesperson Michelle] Lee said.

Asked about the difference in penalties that would be imposed on retired military personnel and those on active duty, Lee said that they would undergo different trial procedures, adding that judges would decide the types of criminal trials that a person should undergo based on facts.

Contradictions in rulings between the military and civilian courts could be avoided through investigation of evidence and the three levels of the court system, she said.

Finnish court convicts Russian national of war crimes committed in Ukraine

Translation of article appearing in Le Monde, 14 March 2025, by Anne-Françoise Hivert.

“The conviction of a Russian neo-Nazi in Finland for war crimes committed in Ukraine, a trial that could set a precedent : Vojislav Torden, leader of a paramilitary group, was sentenced to life imprisonment for crimes committed in the separatist region of Donbass in September 2014.

“By Anne-Françoise Hivert (Malmö, Sweden), regional correspondent)

“His trial began in December 2024. On Friday, March 14, Vojislav Torden, born Ian Petrovski, was sentenced to life imprisonment by the Helsinki District Court. Accused of being a leader of the neo-Nazi paramilitary group Rusich, the 38-year-old Russian was found guilty of four war crimes committed near Luhansk, in the Donbass province of eastern Ukraine, in 2014.

“In Kyiv, the Ukrainian Prosecutor General's Office welcomed the court's decision, which "marks a key step in the fight against impunity for perpetrators of serious violations of international humanitarian law." Unsurprisingly, the Russian Embassy in Finland, for its part, denounced the "bias of the Helsinki court, which handed down a clearly politicized sentence against a Russian citizen."

“The acts alleged against Vojislav Torden took place on September 5, 2014, in the separatist region of Luhansk, where Ukrainian soldiers from the Aidar battalion were ambushed at a checkpoint by several pro-Russian paramilitary groups. Leading them to believe that they belonged to Ukrainian forces, the separatists allowed the convoy, made up of a truck and a car carrying 26 Ukrainian soldiers, to advance before opening fire. Twenty-two soldiers were killed and four wounded.

“Although the Helsinki court ruled that "the evidence did not establish with certainty that the Rusich group was solely responsible for the ambush," Torden was found guilty of the four other charges against him. Notably, he was convicted of executing a Ukrainian soldier who was wounded in the attack and authorizing the mutilation of another, who died from his injuries. His men had carved their group's symbol into his cheek.

Chief Judge of U.S. Court of Military Commission Review on the politicization of military justice

Col. (ret.) Lisa Schenck, who is Chief Judge of the U.S. Court of Military Commission Review, writes here in Stars and Stripes that "politicization of the military has a long history."

Our military and military justice system should not be used as a tool to score political points. Any changes to military policy going forward should be based on an educated, measured approach rather than hasty reactions to biased media coverage and false perceptions. Our service members deserve better.

An opening salvo in a Hegsethian effort to repeal the Gillibrand legislation? 

The floor is open. Real names only, please, for comments.

State military justice (Nevada)

Should Nevada restore National Guard personnel's right to turn down nonjudicial punishment and demand a court-martial? That's the question raised by a current legislative proposal. The Reno Gazette Journal has the story, in detail, here. 

How much do you think it would cost for Nevada to be capable of conducting a couple of courts-martial? (No peeking.)

Would you mind being more specific, colonel?

Lt Col Christopher T. Stein of the U.S. Air Force writes:

This is a defining moment for the military and the JAG Corps.

The secretary has thrown open the door for bold reform, and now it is up to us to walk through it. That means cutting the layers of bureaucratic micromanagement, eliminating unnecessary compliance tasks, returning nonlegal functions to their proper career fields, and rightsizing the force.

It means a refocusing on the law: Let the JAGs be lawyers again, anchored by constitutional principles, not adrift with shifting political winds. Our job is not to perpetuate the mistakes of the past but to ensure the military is ready to meet the challenges of the future. We can either cling to outdated structures or seize this opportunity to build a stronger, more effective legal force that is uncompromising in integrity and fearless in execution.

Comments are invited. Given the current volatile political situation, the usual rule against anonymous comments is hereby waived. Comments will, however, continue to be moderated. 

On Taiwan's impending revival of military courts

National Changhua University's Prof. Liu Chao-lung writes:

. . . [H]uman rights issues should also be taken into account. Cases handled by the new military trial system should be limited to offenses concerning military duties.

Serving military officers contravening the Criminal Code of the Armed Forces, committing crimes such as offenses against allegiance to the nation, would face military trials. However, service members committing general crimes should be handled by the civilian judiciary. Needless to say, military trials should not be applied to civilians.

The restored military trial system should be evidence-based and uphold procedural justice to avoid wrongful cases, which occurred in the absence of these conditions in the past.

The pause that doesn't refresh

From the DAC-IPAD website:

All DAC-IPAD Operations have been paused until further notice. We remain committed to our mission and will provide updates as soon as possible. Thank you for your patience. 

From the Military Justice Review Panel website:

All MJRP operations have been paused until further notice. We remain committed to our mission and will provide updates as soon as possible. Thank you for your patience.

What's up at India's Armed Forces Tribunal

Justice Rajendra Menon, President of the Armed Forces Tribunal, has given an informative interview about developments at the court and his bucket list for the balance of his term.  Here's the list:

• Establishing streamlined procedures to reduce case disposal timelines, particularly for court-martial appeals.
• Advocating for the creation of additional courts at the Principal Bench in New Delhi and the Regional Bench in Chandigarh.
• Enhancing the efficiency of Circuit Benches to provide better access to justice for veterans in areas without Regional Benches.
• Promoting legal awareness among veterans ensuring the proper implementation of policies and circulars related to post-retirement benefits and pensions, in line with individual entitlements.

A major concern is the flood of government appeals.

Full circle in Taiwan?

Will Taiwan be reviving its military courts? This Taipei Times article suggests it may be in the works. Excerpt:

President William Lai’s (賴清德) proposal to reinstate military courts could be a boon to legal efficiency and discipline, a former military judicator said yesterday.

Lawyer Chen Chia-hung (陳佳鴻), formerly an armed forces judicator, said that military tribunals might relieve civilian courts of backlogged cases by swiftly dealing with breaches of military law cases.

That would allow speedy and proper trials for cases that would otherwise undermine the discipline and image of the armed forces, he said.

On winning the battle but (maybe) losing the war

Or, "out of the frying pan and into the fire"? These may be the apt metaphors when considering the recent Kabaziguruka decision of the Supreme Court of Uganda barring the military trial of civilians. In the case of Dr. Kizza Besigye, whose court-martial for "treachery" was pending, it means that he now stands charged with rthe capital offense of treason, to be tried in civilian court. Andrew M. Mwenda writes in The Independent:

This is where Besigye’s lack of strategy becomes evident. If he wants to expose Museveni as a tyrant, the best proof was for Besigye to be tried in a military court martial. This was the more attractive because the Chief of Defense Staff (CDF) who is the head of the military (and therefore oversees the court martial) and is also the son of the president, has already convicted Besigye and sentenced him to death on Twitter (X). This was the golden opportunity to keep the trial in the court martial only to expose the tyranny he claims to be fighting. If the court martial sentenced him to death, exactly what the CDF had already done, his case would have been complete.

Now, for political reasons, it would be most unlikely that Museveni would hang Besigye. In fact, it is very likely that the court martial would have given Besigye a lenient sentence since he was accused of “treachery” – whatever that means. However, Besigye’s best strategy was not to seek proper justice with due process. Doing so defeats his claim that he is in a political struggle against a tyrant who disrespects the rule of law, disregards due process and runs roughshod over the rights of citizens.

A revolutionary in Besigye’s shoes would have turned the court martial into his political rostrum. He would have declared his political aim as liberating Uganda from tyranny. He would have said there is no other way to liberate Uganda except through armed insurrection and political assassination. Then he would conclude by saying he is willing to die in the struggle to liberate the country from the tyranny and incompetence of family rule.

Military justice in Wisconsin

Wisconsin's state code of military justice includes a provision like Article 138, UCMJ. What if the governor decides to take no action on an Art. 138 complaint? Doesn't Gov. Tony Evers have to look into things, decide whether the complaint is meritorious, and provide some kind of explanation, be it ever so brief, of his ultimate decision? Consider this report from Wisconsin Watch.

The Supreme Court Bar Association of Pakistan has filed a statement in the Military Courts Case. The one-page statement is not available, but Dawn's summary is mealy-mouthed and surprising:

The Supreme Court Bar Association (SCBA) stated before the Constitutional Bench (CB) on Thursday that the provisions of the Pakistan Army Act (PAA) 1952 being deliberated upon today had already been upheld by earlier courts which found them to be within the framework of the Constitution and therefore cannot now be termed unconstitutional or illegal.

At the same time, the SCBA in a statement said it believes that civilians should not be subjected to trial before military courts.

The SCBA's website is not currently accessible. (Perhaps it has been hacked or disabled.) The association's position puts it at odds with the Lahore High Court Bar Association.

The court will resume its leisurely proceedings on Monday at 11:30 a.m.

JAGs and the rule of law

JAGs alone can't defend the rule of law, Prof. Dan Maurer argues in this Lawfare post. Excerpt:

To be sure, nothing can undo the damage of summarily relieving the three TJAGs left on the Department of Defense and the service JAG Corps. Like earlier leadership “massacres” (Thursday or Saturday), this too will be fodder for public debate and academic study, and will have negative downstream effects for those remaining—who are still expected to uphold the principles of the “dual profession” of arms and law. To the extent that [Secretary of Defense Pete] Hegseth’s relief of the TJAGs makes that harder, and existing occupational duties limit the provision of key advice to commanders unnerved by legally questionable orders, there is cause for alarm.

Tempus fugit, but not in this court

Yesterday and today, the Supreme Court of Pakistan's Constitutional Bench continued the hearing on intra-court appeals in the Military Courts Case. One of the petitioners' counsel concluded his argument yesterday; now others are being heard. 

Perhaps some reader can comment on how long a day's hearing typically lasts in this court. The news reports include a few of the colloquies, but one can't tell if the justices are on the bench for one hour or, say, four. Predictions as to when the arguments might finally be completed are also welcome.

What will Uganda do about the Supreme Court's decision on military courts?

The Kampala Observer has this helpful roundup of the political response to the Supreme Court's recent decision barring courts-martial of civilians. Stay tuned; it looks like efforts will be made to evade the decision. Excerpt:

Following the ruling, the NRM caucus voted recently in favor of new amendments to the UPDF Act, including a provision allowing the trial of civilians who illegally acquire specified firearms in the Court Martial. Government chief whip Denis Obua confirmed this resolution.

“We resolved that misconduct by serving military personnel will first be tried by the General Court Martial, with the right to appeal through civilian courts. Similarly, civilians who illegally acquire specified firearms will also be tried first by the Court Martial, with the right to appeal through civilian courts,” said government chief whip Denis Obua in a brief statement.

NRM CAUCUS AND THE UPDF AMENDMENT BILL

The caucus decision followed a high-level meeting at State House Entebbe, where members resolved to withdraw the UPDF Amendment Bill 2024 from Parliament. The bill had originally sought to reform the Uganda Peoples’ Defence Forces Act by aligning it with evolving government policies, changes in command structures, and new administrative provisions.

Additionally, it aimed to improve the welfare of defence Forces personnel by addressing gaps in healthcare services, transferring their pension from the ministry of Public Service to the ministry of defence and Veteran Affairs, and strengthening disability compensation mechanisms for military officers and enlisted personnel.

However, the Supreme court’s decision rendered some aspects of the bill legally untenable, necessitating a review before it could proceed in Parliament.  The Supreme court’s ruling stemmed from a constitutional appeal filed by former Nakawa Municipality MP Michael Kabaziguruka, who challenged the military courts’ authority over civilians.

Killing the lawyers

SECDEF

Lesley Wexler and Anthony Ghiotto have writted a Justia post titled Let's Kill All the Lawyers: The Friday Night Massacre of Judge Advocates General. Excerpt:

This potential chilling effect is likely to extend well below the TJAG level. Judge advocates advise at all levels of command. And TJAGs exercise statutory control and responsibility over all judge advocates within their departments. Such responsibility includes the authority to deploy and reassign subordinate judge advocates. Suppose one of the new TJAGs is a Trump administration loyalist who refuses to establish any roadblocks to the administration’s use of the military. A junior judge advocate may identify a potentially unlawful order that flows down to a junior commander. The junior judge advocate may be up for promotion, may not be eligible for retirement, may be assigned to a location where their spouse may be able to work or where her child may be able to receive special services. This junior judge advocate may fear that if she gives independent legal advice that runs afoul of their TJAG, she could be punished with a new assignment, a deployment, or other adverse career consequences. Of course, the fear of retaliation will not deter all junior judge advocates. Think of Lieutenant Alaric Piette, a Navy JAG Corps defense attorney, who repeatedly objected to irregular military commission proceedings on behalf of his death penalty eligible client. Piette knew such actions were deeply unpopular not only with the presiding Judge Vance Spath, but with many in the military as well. Many suspect his superiors failed to promote him as a result—a stiff penalty in an up or out system. Such courage should not be taken as inevitable, particularly in a setting likely to be much more punitive than even the one Piette faced.

NIMJ Statement of Concern

On rare occasions, the Board of Directors of the National Institute of Military Justice has issued public statements on current events. The board today released the following statement:

NIMJ Statement of Concern about Secretary Hegseth’s Political Interference with Military Justice 

The board members of the National Institute of Military Justice (NIMJ) are deeply distressed about Defense Secretary Pete Hegseth’s removal of the top uniformed lawyers in the Army, Navy, and Air Force prior to the expiration of their statutory four-year terms.

While military officers have been relieved before, the Secretary’s firing of The Judge Advocates General (TJAGs) is wholly unprecedented. When pressed by the media for a reason for such an extraordinary move, Secretary Hegseth said he fired these top military lawyers because they might be “roadblocks to anything that happens.” 

We recognize that TJAGs are not entitled to autonomy nor are they immune from legitimate scrutiny from civilian leadership, and that at times there may be valid reasons for firing such an officer on an individualized basis. But the reasons for doing so matter, and these reasons must be expressed publicly. Here, it appears that there was no legitimate rationale for these firings—rather, they were motivated purely by partisan concerns.

Secretary Hegseth’s justification raises more concerns than it answers. Among other issues, it rekindles the specter of unlawful command influence, which has been called “the mortal enemy of military justice.” 

The American military justice system has continuously battled against efforts of those tempted to put thumbs on the scales. A system that is fair—and is seen to be fair—is an essential reason why Americans allow their sons and daughters to join the military. A fair military justice system is a national security priority. 

A fair military justice system requires structural independence. Those who play roles in the process must be able to do so without fear of recrimination. This includes the top service lawyers, who play important roles in training, leading, and supervising the military lawyers who are integral to the military justice system. 

Since 1991, NIMJ has advocated for the fair administration of justice in the armed forces, as a non-partisan group of experts who are independent from the government. We do not always agree with the decisions of the TJAGs. In this case, we are concerned that their firing without sound justification sends the unwelcome message to those in the military justice system that they, too, might be arbitrarily fired simply for doing their jobs. 

Board of Directors

National Institute of Military Justice

Another proposed misuse of military courts (this time from Afghanistan)

Afghanistan International reports here on a strange demand for the court-martial of a civilian official. Excerpt:

Documents obtained by Afghanistan International reveal that Mohammad Yousuf Wafa, the Taliban governor of Balkh, has filed a formal complaint with the Taliban Supreme Court, calling for a military trial of Abbas Stanekzai, the group’s deputy foreign minister.

Wafa accused Stanekzai of “disrespecting” Taliban leader Hibatullah Akhundzada and opposing his decrees.

According to an official letter from the Office of the Governor of Balkh, dated 20 January, Wafa urged the court to prosecute Stanekzai for his criticism of Akhundzada’s policies. The letter alleges that Stanekzai’s remarks, made during a religious ceremony in Khost province, amount to “opposition to the orders of the Taliban leader” and should be met with judicial action.

The complaint outlines seven instances of what Wafa describes as “indirect disrespect” and defiance of the Taliban leader. He argued that, under Islamic law, obedience to the leader is obligatory and that disobedience carries divine consequences.

In his letter, Wafa requested that the Supreme Court conduct a military trial against Stanekzai, asserting: “I demand the trial of the aforementioned [Stanekzai] and seek nothing but a Sharia-based judicial process in defence of the Islamic system. The military court can be in Balkh or any other province as deemed appropriate.”

Let my people go

The Constitutional Court of Colombia has ordered the Air Force to release a member who needed to take care of her son. A RedJurista summary can be found here (use Google Translate). "The Court also reiterated that military entities may postpone the voluntary withdrawal of their members only when duly justified for reasons of national security or special circumstances of the service, and always with sufficient and proportionate arguments." The court's opinion (in Spanish) in No. T-028 of 2025 can be found here.

Manner of discharge from service irrelevant in considering benefits to war disabled soldiers: Punjab & Haryana High Court (India)

In a detailed judgment, the Punjab & Haryana High Court has held that the manner of exit from service of a war disabled soldier (invalidation, discharge, retirement, voluntary retirement, completion of terms of engagement etc) would not be of any relevance while determining benefits or facilities related to the disability suffered by him.

In the matter before the High Court, the State of Punjab had refused to extend the “honour and gratitude” scheme to the son of a soldier disabled to the extent of 80% in an anti-terror operation. The scheme provides for compassionate employment to one child of soldiers disabled or killed in action. The refusal was on the pretext that the disabled soldier was not discharged from the Indian Army on medical grounds but continued to serve the military after getting disabled and was released from service with 80% disability on competition of his terms of engagement.

Relying upon existing case-law, the Court held that it would be discriminatory to refuse the benefit of the scheme on such a ground.

The Court observed:

"The procedure for invalidment being in place, the decision whereof vested with the authorities and the continuation of the petitioner in service, despite having suffered disability, rather goes to his credit while the same has been construed otherwise, appals this Court.....On cumulative consideration of the matter, it stands unequivocally established that the claim of the petitioner is both legally sustainable and substantively justified, due to legislative intent behind the policy, when harmoniously construed with fairness and equity, precludes a rigid or hyper-technical interpretation that would undermine its very essence, while judicial precedents, serving as guiding beacons, affirm that the nature of discharge cannot be wielded as an instrument to deny legitimate entitlements, thereby binding the respondents by the principles of justice and the imperatives of settled law to extend the benefits envisioned under the policy in a manner that upholds both its letter and spirit."

More details, and the judgment can be accessed from Verdictum.

Dropping the pilots

Duke Law School's Maj Gen Charles J. Dunlap, Jr. USAF (Ret) has posted this important and timely Lawfire piece on the nascent effort to get rid of the incumbent Judge Advocates General. Excerpt:

Last night’s announcement that the Administration is “requesting nominations for the Judge Advocates General for the Army, Navy and Air Force” is unprecedented in my memory and is, frankly, very disturbing as it implies the existing senior military lawyers are about to be fired, en masse. 

I say “unprecedented” because these are military legal officers who, unlike politically appointed civilian legal officials elsewhere in government, are never expected to be replaced on a change of Administrations. Since military lawyers are nonpartisan, no turnover is–or should be–expected in an organization like the armed forces that aims to be politically neutral.

Indeed, the Supreme Court, as discussed below, says the military should be “insulated from both the reality and the appearance” of partisanship.  Mass firings by politicos don’t do that. 

To the contrary, stripping the armed forces of its senior uniformed legal advisors tasked by law to provide independent advice sends all wrong messages throughout the military legal community, not to mention to commanders and their troops.

In my opinion, Congress should vigorously demand a full explanation. . . .

On the president's power to fire or punish

GEN Mark A. Milley, USA
(Ret)

William A. Galston has written this Brookings commentary on the president's power to fire or punish military officers. His conclusion:

However broad the president’s authority over the military may be, the Constitution makes it clear that it is not absolute. President Trump does not have unchecked power to pursue vendettas against officers who have challenged his policies or have implemented policies he dislikes. As the oath they swear makes clear, military officers have the obligation to obey the lawful orders of the commander in chief, but their highest loyalty is to the Constitution, not to the temporary head of the executive branch.

The unlawful orders problem

Several nationally-known military justice experts are quoted in this CNN story about unlawful-orders issues posed by one of President Donald J. Trump's recent Executive Orders. Excerpts:

“We know [Defense Secretary Pete] Hegseth has said things in the past that are critical of war crime prosecutions – if they make that official policy will that dissuade prosecution of war criminals?” [Col. (ret) Don] Christensen added. “Will it dissuade commanders from standing up to unlawful orders? … This is something that could put fear into the decision making of service members.”

Trump “could have easily made it clear” that this didn’t apply to the decision making of military judges or lawyers, Christensen said – but no such carve-out was made. And without further clarity from the Pentagon or the White House on how the order will be implemented, it’s unclear what second- and third-order effects it could have within the military, Christensen and other military law experts said.

* * *

“My time in service, there was never once that I was curious or wondered or was concerned about what the president thought as I was prosecuting a case, or presiding over one as a judge,” he said. “But I think now, people probably will be.”

* * *

[Quoting Prof. Rachel E. VanLandingham] “Even [Court of Appeals for the Armed Forces] judges can be removed from their positions …. They work for the president, and if a president wants to exploit that structure, he has the legal authority to do so. It’s how Congress set things up.”

A judge with the Court of Appeals of the Armed Forces, or CAAF, can be removed for neglect of duty or misconduct, VanLandingham added, but can’t be removed “simply because the president doesn’t like their opinions.”

If you re followng Pakistan's Military Courts Case

 

You can find Dawn's good summary of high points of today's proceedings here. It remains a mystery why the case is still being argued. Poor control by the Chief Justice? Poor briefing? Short workdays?

Comments welcome (real names only, please).

Law and politics in Pakistan's Supreme Court

Another day, another hearing in Pakistan's endless Military Courts Case. This Dunya News article gives a verbatim account of at least some of today's proceedings. Readers are encouraged to take the time to study it; here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the staff is debating whether a hearing in a constitutional court has ever been more blatantly political.

Excerpt:

Justice Hilali remarked that you have been an MNA [Member of the National Assembly] and should raise these issues in parliament.

Justice Mandokhail asked him to raise these issues in parliament. Khosa said that when he start speaking on the floor of assembly, his microphone is turned off.

Justice Hilali remarked that you pass the 26th Amendment and ask the court to declare it null and void. Khosa said they throw you out of the assembly through the Sergeant at Arms.

Justice Mandokhail asked Khosa whether he voted against the constitutional amendment. Latif Khosa replied that the PTI did not participate in the voting. The justice remarked that it was his job to oppose the amendment.

Pakistan and the court-martial of civilians

"Justice Naeem Akhtar Afghan of the Supreme Court’s constitutional bench stated on Tuesday that international law does not explicitly prohibit the court-martial of civilians."

Staff Report, Civilians court martial not prohibited under international laws: Justice Afghan. Pakistan Today, 19 February 2025.

Slow habeas in Uganda

Despite the Supreme Court of Uganda's ruling that civilians may not be tried by court-martial (the military is demanding that the court apologize), a High Court judge is slow-rolling the habeas petition filed by a civilian who is facing such a trial. Here is what the Uganda Law Society has to say about it:

Deference in record-correction cases

The following excerpts are from the January 13, 2025 unanimous decision of the U.S. Court of Appeals for the Fourth Circuit in Dorado-Ocasio v. Wormuth (Wilkinson, J.):

[T]his case involves no ordinary “arbitrary and capricious” review. The ABCMR, and other military boards akin to it, are afforded “an unusually deferential application of the ‘arbitrary and capricious’ standard.” Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Bolton v. Dep't of the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th Cir. 2019); Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024). Our deferential standard in military contexts is “calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Indeed, “[p]erhaps only the most egregious decisions [of the boards] may be prevented under such a deferential standard of review.” Kreis, 866 F.2d at 1515. This degree of deference is rooted in (1) the statutory language giving life to the ABCMR, (2) the judiciary's longstanding commitment and obligation to avoid unnecessary intrusion into the military chain of command, and (3) the most basic principles of judicial economy.

A.

In enabling military record correction boards, Congress granted significant discretion to military leaders. The ABCMR's governing statute provides that “[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (emphasis added). This language is permissive rather than mandatory. Ultimately, so long as she follows the provisions of relevant law, the Secretary of the Army can correct any record in a soldier's AMHRR for those reasons she deems appropriate.

Failure to defer to the ABCMR's decisions would render the Secretary of the Army's discretion effectively meaningless. Therefore, to avoid undermining the Board's congressional design, courts read the statute as “substantially restrict[ing] the authority of the reviewing court to upset the Secretary's determination.” Kreis, 866 F.2d at 1514.

Our conclusion that the statutory language requires considerable deference to the ABCMR's decision-making is hardly exceptional. We merely add to the chorus of our sister circuits, who have long held that “[i]n light of this [statutory] language, the review of military board judgments is ‘exceptionally deferential.’ ” Williams v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008) (quoting Viles v. Ball, 872 F.2d 491, 495 (D.C. Cir. 1989)); see also Kreis, 866 F.2d at 1513; Bolton, 914 F.3d at 406-07; Mahoney, 99 F.4th at 34.

B.

The reasons for significant judicial deference to military decisions are multiple. The Framers of the Constitution left no doubt as to the Judiciary's limited authority in military affairs. To Congress, the drafters gave the power to “declare War,” to “raise and support Armies,” to “provide and maintain a Navy,” to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. art I, § 8. To the Executive, the drafters gave the title of “Commander in Chief of the Army and Navy of the United States.” Id. art II, § 2; see also Saikrishna Prakash, Deciphering the Commander-in-Chief Clause, 133 YALE L.J. 1, 58-59 (2023). But to the Judiciary, the drafters left no such explicit power.

Pakistan's Military Courts Case -- see you on Feb. 18th

The Constitutional Bench of the Supreme Court of Pakistan heard from counsel yet again in the leisurely intra-court appeals phase of the Military Courts Case. Dunya News has this account. Here are a few of the colloquies:

Advocate Raja quoted the UK law and said that court martial cases were not handled by military officers but by judges appointed in a manner similar to the high court. The commanding officer can only send a case to an independent forum if it involves a serious matter. 

Justice Khan asked the counsel to focus on the Pakistani law, not the British law. 

Justice Mazhar remarked that the British law pertains to the discipline of their military, while in the current case, the crime was committed by civilians. How could the British law apply to civilians? 

Advocate Raja submitted that he gave the reference in the context of ensuring an independent and transparent trial. 

* * * 

Justice Rizvi questioned the lawyer should a judicial corps be established in the army like engineering and medical corps where experts in law could serve.

* * *

Justice Hilali remarked that a political party had supported military courts under the 21st Constitutional Amendment, and asked Advocate Raja if his party had done so. He replied that he was not representing any political party in court. They may have made a mistake at the time; it was wrong to now criticise it. 

Justice Hilali wondered how one could dismiss past actions when in opposition.

Justice Mandokhail noted that a good point in the 21st Amendment was that it did not apply to political parties.

The 21st Amendment had permitted military trials of civilians in some circumstances, but was temporary. It expired before the events that gave rise to the current litigation.

Civilians on trial in Egypt

This time it's Egypt, and this time it's civilian fishermen. Details here, courtesy of Amnesty International. Excerpt:

Egyptian authorities must stop trying civilians in military courts, said Amnesty International and the Sinai Foundation for Human Rights, ahead of an expected verdict on 12 February in the military trials of five civilians in relation to fishing in a lake in North Sinai controlled by a development agency operating under the ministry of defence.

On 6 and 7 January, a military police unit from the Egypt’s Future Sustainable Development Agency (EFSDA) arrested five fishermen at Lake Bardawil.  Military prosecutors investigated the men on charges of fishing during “prohibited periods” as well as being in a military area without permission. President Abdel Fattah al-Sisi had placed the lake, a fishing spot for around 3,500 fishermen, under military jurisdiction in 2019, according to presidential Decree No. 294 of 2019.

“It is a travesty that a group of fishermen have found themselves facing military trial for fishing in a lake without authorization. Trying civilians in military courts is a flagrant violation of Egypt’s international human rights obligations. Military authorities must immediately drop the charges against the five men and release them. They must be tried by independent and impartial civilian courts in proceedings meeting international standards of due process and fair trial,” said Ahmed Salem, Executive Director of the Sinai Foundation for Human Rights (SFHR).

Fallout of the Ugandan Supreme Court's decision on military trials of civilians

This excellent video report tells the tale. Next step is to see what Parliament decides regarding a legislative response.

Leading attorney interviewed about Ugandan decision

Elison Karuhanga, a leading attorney in Kampala, has given this memorable interview to NilePost. Excerpts:

The military now has clarity. This decision was not against the army but rather in favor of the Constitution. It benefits everyone, including the military, because it clearly distinguishes between military discipline and civilian justice. This ruling prevents these two areas from being conflated.

While the military may have initially been surprised by the ruling, it now has the opportunity to adapt and align its processes accordingly. The Supreme Court even suggested amendments to the Uganda People’s Defence Forces (UPDF) Act, which establishes the Court Martial. This highlights the need for trials to be fair and just.

Ultimately, this ruling reinforces a fundamental principle: trials must be fair. Every accused person must have a fair hearing before an independent and impartial tribunal. This decision strengthens the Constitution’s principles, benefiting not just civilians but also the military. It is a victory for the rule of law, not a threat to security. If we compromise liberty and the rule of law for security, we risk losing both.

Senior Attorney Karuhanga also discussed the proactive role of the bar:

How has Isaac Ssemakadde’s election as Uganda Law Society President and his ‘radical new bar’ approach, which challenges traditional norms in the legal profession, influenced the court’s decision on military trials and shaped Uganda’s judicial landscape?

It certainly had an impact. Ssemakadde campaigned strongly on the need for demilitarization of the legal system, and many people initially did not understand what he meant. However, he has since made the issue of the General Court Martial a cornerstone of his advocacy.

Beyond that, there was growing frustration within the legal community about how long it took for the court to deliver its decision. For four years, we have been waiting for constitutional guidance on this matter. In his judgment, the Chief Justice was visibly displeased with criticisms regarding the delay, arguing that various panel changes and procedural issues contributed to it. Nevertheless, justice delayed is justice denied.

In those four years, individuals were tried, convicted, and sentenced without the constitutional guidance that was long overdue. This is why the radical new bar was effective not necessarily because they influenced the ruling’s content, but because they continuously called for a resolution. They emphasized that the court needed to rule, regardless of the outcome.

All in the family

The Chief of Defence Forces in Uganda, Muhoozi Kainerugaba, who happens to be a son of the country's President, has joined in criticism of the Supreme Court's decision that courts-martial cannot try civilians. Details here.

Does Ukraine need military justice?

Judging by this program that took place today, the question is a live one.

Is military justice needed: what does justice for the military look like?

PRESS CENTER UCMC ANNOUNCE DATE: 05.02.2025 TIME: 14:00 

SPEAKERS: 

● Serhiy Rakhmanin, Member of Parliament, Member of the Verkhovna Rada Committee on National Security, Defense and Intelligence; 

● Viktor Chumak, Chief Military Prosecutor of Ukraine (2019-2020), Major General of Justice (retired); 

● Pavlo Bohutskyi, Military Prosecutor of the Western Region of Ukraine (2011), Southern Region of Ukraine (2014-2015), Major General of Justice (retired); Doctor of Law, Head of the Scientific Laboratory of Military and International Humanitarian Law of the State Scientific Institution "Institute of Information, Security and Law of the National Academy of Legal Sciences of Ukraine", Honored Lawyer of Ukraine (online); 

● Valentyn Badrak, Director of the Center for Army, Conversion and Disarmament Studies; co-founder of the Defense Information Consortium; 

● Sergiy Zgurets, Director of Defense Express; co-founder of the Defense Information Consortium (online); 

● Mykhailo Samus, Director of the New Geopolitics Research Network; co-founder of the Defense Information Consortium; 

● Oleksiy Yizhak, National Institute for Strategic Studies; co-founder of the Defense Information Consortium (online); 

● Vasyl Pekhnyo, moderator, journalist. 

VENUE: Press center of Ukraine Crisis Media Center 

ORGANIZER: Defense Information Consortium On February 5, 2025, at 14:00, a roundtable discussion will be held: Is military justice needed: what does justice for the military look like? 

Questions for discussion: Prospects for the development of military justice in Ukraine Do we need military police, military courts, specialized Military Prosecutor’s office, and military lawyers? Problems of ensuring the rights of servicemen How should combat officers and generals be held accountable? Responsibility of the military for going AWOL and desertion The role of the military ombudsman (Presidential Commissioner for the Protection of the Rights of Servicemen and Family Members of Servicemen) in the legal support of defense 

Attention! In case of an air raid alert, visitors of the event can use the shelter located in the basement of the Ukrainian House

Оригінал статті - на сайті Українського кризового медіа-центру: https://uacrisis.org/en/announce/chy-potribna-vijskova-yustytsiya