Australian "weaponisation inquiry" report issued

The Inspector General of the Australian Defence Force has issued the 89-page report of the Inquiry into the Weaponisation of the Military Justice System, which can be found here. The Inquiry's conclusions and recommendations are as follows:

CONCLUSION 1: ADF discipline processes provide greater transparency and more robust safeguards, compared with administrative processes, contributing to higher levels of fairness and confidence in the military justice system.

RECOMMENDATION 1: Where conduct may disclose a Defence Force Discipline Act 1982 offence, the ADF consider discipline action in the first instance.

NOTE: The Defence Force Discipline Amendment (RCDVS Implementation and Related Measures No. 1) Bill 2026 [hyperlink added] is consistent with the intent of this recommendation. The Bill intends, among other measures, to create a ‘summary contravention scheme’ to enable minor disciplinary matters to be addressed more efficiently without compromising fairness. Defence Force Discipline Amendment (RCDVS Implementation and Related Measures No. 1) Bill 2026, Explanatory Memorandum, para 2.

CONCLUSION 2: Involuntary termination of service is confronting for ADF members and may give rise to concerns of unfairness if it is perceived to be arbitrarily applied. Decisions to end an ADF member’s service on the basis that it is not in the interests of the Defence Force should therefore be initiated and finalised consistently and at appropriate levels to maintain fairness and confidence in the military justice system. While unit commanders must retain operational discretion as to whether particular members should serve under their command, they should not have authority to use the potential termination of ADF service as a means of leverage over personnel.

RECOMMENDATION 2: The Chief of the Defence Force withdraw commanding officers’ delegations to initiate termination of an ADF member’s service on the grounds that their service is not in the interests of the Defence Force.

CONCLUSION 3: The use of the terms ‘dismissal’ in disciplinary processes and ‘termination’ and ‘early end of service’ in administrative processes, to describe essentially the same outcome, create confusion and undermines confidence in the military justice system. This confusion is reinforced, and gives rise to a perception of ‘double jeopardy’, when an ADF member’s service is involuntarily administratively terminated or ended early after a Service tribunal declines to impose a punishment of ‘dismissal’ following a discipline trial.

RECOMMENDATION 3: Relevant legislation and policy be amended to harmonise the terms ‘dismissal’, ‘termination’ and ‘early end of service’.

Not military justice, but . . . HIV+ case to be reheard en banc

The U.S. Court of Appeals for the Fourth Circuit has voted to rehear en banc the case of Wilkins v. Hegseth. According to The Advocate:

A federal appeals court has revived a major challenge to the U.S. military’s HIV enlistment ban, reopening a closely watched case that could determine whether people living with HIV can continue to be categorically barred from serving.

In an order issued May 18, the full U.S. Court of Appeals for the Fourth Circuit agreed to rehear Wilkins v. Hegseth, vacating a February ruling by a three-judge panel that upheld the Pentagon’s restrictions on recruits living with HIV. The rare move resets the case and gives advocates another opportunity to dismantle one of the military’s last remaining HIV-specific exclusions.

The court's order can be found here.

New judges sworn in in Paraguay

La Tribuna has the story here. The Supreme Court of Military Justice now consists of Brigadier General Julio Vargas Alonso and Military Justice Colonel Zulma Vargas Villamayor. The court's alternate member is Military Justice Colonel Sandra Gómez de Molinas.

The extended arm gesture is not a salute; it is used for oath taking. As in this image.

Military courts legislation debated in Dominican Republic

Noticias SIN writes here:

Although the draft Penal Code currently being considered in the Senate stipulates that the military may only judge matters concerning military offenses in a privileged jurisdiction, the relevant articles have caused controversy.

The debates on the issue come at a time when some lawmakers reject the alleged attempt to revive military justice parallel to civilian courts, while others believe the situation is being created to sabotage the project.

Article 303 of the amendment to the Penal Code provides that offenses of a strictly military nature committed by military personnel in the line of duty will be heard by military courts.

Nigeria: concerns continue about the court-martial of coup suspects

Sahara Reporters highlighted the alleged abusive treatment of the accused in a pending secret court-martial of officers alleged to have attempted a coup--Outrage Trails DHQ Secret Court-Martial As Military Officers Appear In Leg Chains, Battle Untreated Infections, Families Barred From Proceedings.

The Guardian (Nigeria) now reports concerns about the overall process--Alleged coup trial sparks tension as defence lawyers challenge military proceedings.

Tension and confusion have reportedly engulfed the ongoing secret court martial of military officers accused of plotting a coup against President Bola Tinubu’s administration, as defence lawyers intensify objections over what they describe as inconsistent and “recycled” charges.

Sources familiar with the proceedings say the session became heated after defence counsel openly challenged the military prosecution, accusing it of repeatedly altering and withdrawing charges in a manner they argue undermines the credibility of the case.

According to insiders, the prosecution has allegedly presented multiple versions of the charges at different stages of the hearing, raising questions among defence lawyers about the coherence and legal foundation of the allegations against the detained officers.

Does Nigeria's National Industrial Court have jurisdiction over cases brought by military personnel?

We'll find out soon. Details of the test case can be found here. The facts alleged by a former general officer, if true, are disturbing.

Remember and honor

 

The right to a fair trial in India's military legal system

The disciplinary process under the military law begins after a charge has been preferred by the Commanding Officer (CO) of the accused.  In the case of trial by a court-martial, the officer who convenes the court is equally responsible for its correctness.  The procedure for hearing of charge is contained under Army Rule 22, which was amended in 1993. Before amendment, the Army Rule 22 read as follows: 

Hearing of Charge: (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.

 

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he is satisfied that the charge ought not to be proceeded with.

 

(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall, without unnecessary delay:

 

(a) dispose of the case summarily under section 80 in accordance with the manner and form in Appendix III; or

(b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or

(d) if the accused is under the rank of warrant officer, order his trial by summary court-martial.

 

Provided that the commanding officer shall not order trial by summary court-martial without reference to the officer empowered to convene a district court-martial or on active service a summary general court martial for the trial of the alleged offender unless either:

 

a) the offence is one which he can try by summary court-martial without reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

1993 Amendment

In 1993, few changes were made in the Army Rules 1954. The Army Rule 22 dealing with the hearing of charge, after amendment, reads as follows:

 

Hearing of Charge: (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:

 

Provided that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provisions of the rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1).

(2) The commanding officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion, he is satisfied that the charge ought not to be proceeded with.

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of section 120 without reference to superior authority as specified therein.

 

(3) After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time –

 

(a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or

(b) refer the case to proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer, order his trial by summary court martial:

Provided that the commanding officer shall not order trial by summary court martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless:

 

(a) the offence is one which he can try by a summary court-martial without any reference to that officer.

 

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

 

(4) Where the evidence taken in accordance with sub-rule (3) of this discloses an offender other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge. 

Safeguarding the role of America's military lawyers

Protect Democracy United's Zachary T. West has written this primer -- well worth study. Excerpt:

THE JUDGE ADVOCATE GENERAL (JAG) Corps is critical to maintaining good order and discipline across the U.S. military, providing legal assistance to servicemembers and their families, and ensuring lawful combat operations. Yet this institution is facing unprecedented challenges, including the no-cause firing of the Army and Air Force’s top JAG officers and the Pentagon’s announcement that it would reassign judge advocates to serve as temporary immigration law judges and backfill vacancies in U.S. Attorney’s offices. This paper discusses the history and purpose of the JAG Corps, recent challenges to its independence and ability to serve as a trusted advisor, and how Congress can strengthen U.S. military readiness by protecting the JAG Corps from improper influence and misuse.

Juridictions militaires

A reader has asked for a link to the French Senate report cited here. Here is a working link for Italy. If any readers can find other pertinent Senate links, please add them in a comment.

Fidell and Rosenblatt on the Military Justice Review Panel

This blog's editor and Franklin Rosenblatt wrote "The Armed Forces Need the Military Justice Review Panel" in Just Security about the Pentagon's disregard of the review body required by law in favor of more secretive and malleable internal review bodies. 

Among these is defense secretary Pete Hegseth's recent announcement of an internal "special" panel reviewing military justice. The authors argue that this development

[I]s highly concerning. Rather than some new handcrafted DoD entity, it is crucial that the Military Justice Review Panel (MJRP) be restored as required under statute. Any further erosion of confidence in the country’s military justice system–for that will be the outcome of Hegseth’s internal effort–will have a profound negative impact on the U.S. military’s good order and discipline, and morale, and detract from the country’s national security. 

The authors conclude:

If the Trump administration does not reinstate the MJRP, Congress should vigorously object to the creation of Hegseth’s “special review panel” and demand that the MJRP, created by a still-in-force federal statute with a mandate to report to Congress, be revived immediately. Confidence in the country’s adherence to the rule of law and in the U.S. military justice system has never been more critical.

What's in store for DoD's military justice review?

Who even knows?, asks practitioner Cody Harnish in this video. DoD has still not released hard copy of the governing document.

Sen. Mark Kelly's case -- is there a "there" there?

Prof. Ryan Burke writes here on the case of Senstor Mark Kelly. His cconclusion:

[A]fter all the noise, we are left with the same conclusion: there is no there, there. No legal order actually at issue. No sedition. No Article 88 violation. No singular statement that can be traced to Senator Kelly as a standalone call for misconduct. Just a spliced, multi-voice video and a sprawling overreaction.

The Pentagon would do well to step out of this self-created fog and return its focus to matters that actually threaten the country. Because this is not one of them. This is, once again, much ado about nothing – the latest entry in a growing catalog of Pentagon follies that never should have escaped the cutting room floor.

Except for the suggestion that this is much ado about nothing, it's hard to disagree. But the implications of Secretary of Defense Pete Hegseth's vendetta again Sen. Kelly are far from nothing. The implications for free speech, whether by senators or retirees, are grave.

Where should this case be tried (this time it's Burkina Faso)?

There's a dispute in Burkina Faso over whether a case currently in civilian court really ought to be in the military court. Details here. Not quite sure we follow, but this is what was argued:

"In this case, you are dealing with a common law offense committed by members of the military." Secondly, the defense counsel pointed out that the events occurred during the soldiers' regular duty. "They were on a security mission at the Palace Hotel in Ouagadougou," he maintained. In light of the aforementioned elements, the legal question that arises is whether the law reserves jurisdiction over this type of case to another court.

To address this, Mr. Minoungou cited the law governing the military justice code, specifically Article 34, which stipulates, among other things, that military courts have jurisdiction over offenses committed by military personnel. "This case falls under the jurisdiction of the Military Court," he concluded. He noted that in 1994, members of the gendarmerie were not subject to the jurisdiction of the Military Court, according to Article 41 of the military justice code. Following this date, particularly with the law of July 4, 2017, Article 41 was repealed.

In 2023, the defendants' counsel continued, a law was passed amending the military justice code. "But this law did not address the jurisdiction of the Military Court regarding cases involving gendarmes... One cannot choose to bring a matter of employee dismissal before the Criminal Court. Similarly, a land dispute will not go before the Military Court. In this particular case, the matter does not fall under the jurisdiction of the criminal chamber of the Regional Court," he concluded.

The offense occurred in 2020. Does that suggest a problem? 

Summary court-martial: British legacy in the Indian military legal system

Summary courts-martial were a part of post-1857 mutiny reforms in India. It never existed under the British military legal system. Historically, they owe their origin to the Punjab Irregular Forces which came into prominence after the 1857 mutiny. It was found that the Punjab Irregular Forces, which were under the Local Government, were far more disciplined as compared to the regular forces. The Irregular Forces, created in 1851 to protect the NW frontier of British India, were not under the Commander-in-Chief and were also not subject to Native military law in the British India. The reason for this was traced to the paramount position secured to commanding officers who were allowed to deal promptly and directly with military offenders and enforce discipline among the troops commanded by them. Such officers often held drum-head court-martial and passed sentences and inflicted punishments on them in the way in which a general officer commanding in the field across the frontier exercised extraordinary powers (under military commissions) over persons who were not amenable to military law. The system was associated with the name of Colonel Coke, who, while Deputy Commissioner of Kohat, raised and commanded the 55th Coke’s Rifles. It had come into existence through the then frequent union on the frontier of the functions of Deputy Commissioner, Political Officer, and Military Commandant in the same person. The combination of power enabled the commanding officer to award the punishment to a military offender and thereafter to issue a warrant for the execution of the sentence which was respected by the civil and prison officials as emanating from him in his civil and magisterial capacity.

It was realized during the post-Mutiny reforms that to strengthen the hands of commanding officers, similar summary powers must be given to them to discipline the Native regular forces. With this object summary powers were first introduced by Act No. VI of 1860 and continued under Articles 81 and 82 of the Act XXIX of 1861. In these two Acts, it was stated that a trial under these Articles shall be deemed a Court Martial and the words “court martial” in the Articles of War shall be deemed to include a commanding officer/detachment commander holding a trial. The term summary court-martial was formerly used under Article 72 of the Act of 1869. The Indian Articles of War (Amendment) Act XII of 1894, categorized the summary and summary general court-martial as “extra-ordinary courts-martial,” while general, district and regimental courts-martial were termed as “ordinary court-martial.” 

Questions about Chilean military justice reform bills

On May 4, 2026, the full Supreme Court of Chile approved reports on bills that would alter that country's military justice system. You can find the reports here and here. This press account indicates, unfortunately without precision, some of the court's concerns (cleaned-up Google translation):

The bill seeks to reform and update the Code of Military Justice in accordance with international standards, with the objective of adapting current regulations to fundamental guarantees and the needs of the country. This effort responds to the need to maintain a specialized system for judging matters pertaining to military justice while ensuring consistency with democratic principles and advances in human rights.

To that end, the measure primarily involves two major reforms: those that relate to the organic part of the Military Justice Code and those that modify procedure, without prejudice to introducing a new statute of rights for accused military personnel.

The reform is commendable since it seeks to update military regulations in accordance with international recommendations received by the State. Furthermore, there is a clear trend toward aligning the military legal framework with the principles and norms governing criminal procedure reform.

However, the bill raises concerns that need to be reviewed.

From a procedural perspective, a more exhaustive and comprehensive regulation of the principles governing precautionary measures is needed, as well as the grant of jurisdiction to military courts over crimes that are not part of the military legal system.

From an organizational perspective, the jurisdiction of military courts over common law crimes warrants review because it constitutes a potential intrusion into the civilian justice system. The same can be said regarding the centralization of military justice, which may raise concerns about efficiency and workload.

Finally, the explicit establishment of the protection remedy in all cases where this action has been brought in favor of individuals against illegal and arbitrary acts or actions carried out by the military authority is open to criticism. This expansion of the jurisdiction of courts-martial could generate significant concerns, as it threatens the historic jurisdiction of ordinary courts to the detriment of potential victims of violations or threats to their fundamental rights.

Amnesty International statement on Pakistan's misuse of military courts

Amnesty International has issued this statement on Pakistan's use of military courts to try civilians:

On the first anniversary of the Supreme Court of Pakistan’s ruling that trials of civilians by military courts are constitutional, Isabelle Lassee, Amnesty International’s Deputy Regional Director for South Asia, said:

“The Supreme Court’s 2025 decision has fundamentally undermined the right to a fair trial and the right to liberty in Pakistan. Such courts flout virtually every protection guaranteed under international human rights law.

“A civilian before a military court is first subjected to a secret trial without procedural safeguards, conducted by army officials that lack independence and impartiality. If convicted, they are denied the right to appeal, despite orders by the Supreme Court that this protection be guaranteed. Those serving convictions, including 9 May protesters still serving their sentences and activists such as Idris Khattak, are being deprived of the right to have their convictions and sentences independently and impartially reviewed. They are not given access to the court’s reasoned judgements and, in many instances, they have not been provided with any written order at all, as part of a deliberate tactic to prolong their unlawful detention.

“Amnesty International calls on the Pakistani authorities to end this injustice by banning military trials of civilians and overturning all unlawful civilian convictions by these courts. Authorities must ensure that all those convicted are provided with a meaningful right to appeal to a competent, independent and impartial tribunal.”

Vacancies on India's Armed Forces Tribunal

The Armed Forces Tribunal Bar Association (Regional Bench) has filed a petition with the Supreme Court of India concerning the government's failure to fill vacancies on the AFT.  Details here. Excerpt:

The advocate appearing for the petitioner said out of the 11 benches of the Armed Forces Tribunal (AFT), only three would be functional by the end of the year if the vacancies were not filled.

The plea sought a direction to the Centre to complete the process of selection and fill the vacancies in the AFT in a time-bound manner so as to comply with Section 5 of the Armed Forces Tribunal Act, 2007.

Section 5 of the Act deals with the composition of the tribunal and its benches.

The petition has also sought a direction that the present judicial and administrative members of the tribunal shall continue to remain in office, subject to their consent for continuance, till such time the necessary appointments are made.

Bait-and-switch in Pakistan

Remember that case in which a constitutional bench of the Supreme Court of Pakistan upheld (5-2) military trials of civilians despite the absence of a constitutional amendment -- on condition that the government provide a right of independent appellate review. The majority in Shuhada Forum, Balochistan v. Justice (R) Jawwad S. Khawaja, 2025 SCP 165, afforded the government 45 days in which to institute that remedy.

Guess what? Nothing has been done. This article from The Express Tribune tells the depressing tale. Excerpt:

Barrister Asad Rahim Khan argued that even the limited appellate safeguard was insufficient from the outset.

"Even as far as sops went, however, this one too was withheld. After all, the decision's main consequence was not to provide an additional floor of appeal. It was to validate military tribunals of civilians outside a declared state of exception, and outside a constitutional amendment – the first time in our history," he noted.

He further stated that implementation of even these limited safeguards had been further complicated by the creation of the FCC, which he described as an aberration within a common law system that has weakened binding precedent.

Barrister Sameer Khosa said the judgment of the Constitutional Bench of the Supreme Court required the federal government to provide an appeal to the convicts, but the government has not even pretended to offer one.

Barrister Rida Hosain, who assisted one of the petitioners challenging military trials, says that the Supreme Court accepted that there was no independent right to appeal under the Army Act. Under the military law, the right to appeal lies to a court of appeal consisting of the Chief of Army Staff or one or more officers designated by him. The appellate forum is composed of serving military officers who remain subject to the same command structure. An appeal, within the military structure, is an appeal to a hierarchy that has an institutional interest in defending its own processes. 

"Despite a time-bound directive, the Government has failed to take steps to initiate legislation. Those convicted by military courts are left without access to an independent appellate forum. The consequences of inaction are stark. Civilians have been deprived of their liberty by military courts without any independent appeal. The failure to legislate destroys the constitutional promise of due process and protection against wrongful deprivation of liberty. It places citizens at the mercy of a system that is structurally incapable of independent appeal. The government’s inaction reflects its sheer disregard for judicial orders", she adds.

Jurisdictional boundaries issue at Indonesia's Constitutional Court

Where is the boundary between military and civilian court jurisdiction? That is a current issue before the Indonesian Constitutional Court, according to this account. Excerpt:

Dr. Nanik Prasetyoningsih, SH, MH, an expert in Constitutional Law at Universitas Muhammadiyah Yogyakarta (UMY) , also shared his views. According to Nanik, the main problem does not lie in the existence of military justice. However, problems arise because the jurisdictional boundaries between this special forum and ordinary courts are not yet clearly defined.

"The main problem lies in the blurring of the boundaries between jurisdictions based on the status of the perpetrator and the type of crime," Nanik said in an online interview on Saturday (May 2).

He explained that legal practice in that country has traditionally focused on the perpetrator's status. If the perpetrator is a TNI soldier, the case is automatically referred to that group. However, in a modern state governed by the rule of law, a more appropriate criterion is the type of violation and its relation to the function of self-defense.

The urgency of separating common crimes

According to Nanik, the court's authority should be limited to offenses directly related to military duties. He emphasized that soldiers who violate common law should be tried in district courts.

"If the crime involves murder, drug trafficking, corruption, or domestic violence, then, constitutionally, it would be more appropriate to examine it through the general legal system," Nanik emphasized.

Furthermore, Nanik highlighted a phrase in the law that grants broad authority to prosecute criminal offenses without clear limits. This creates legal uncertainty, as the boundaries of this authority are very imprecise.

Where should this case be tried? (this time it's Indonesia)

The New York Times reports here on a nasty case from Indonesia: an acid attack on a human rights activist. The case has been moved to military court. Excerpt:

Mr. Prabowo promised a thorough investigation.

“This is a barbaric act, we must pursue it,” the president said in remarks released  a week after the attack. “We must investigate. Who ordered them, who paid.”

Days later, the general who headed the military’s main intelligence arm, the Strategic Intelligence Agency, quietly resigned. He is not known to be facing any charges.

But on March 31, the police announced that the case had been transferred to the military, which meant that military prosecutors would have the ability to limit the scope of the investigation and determine what information is made public.

Draft evasion figures in Israeli court decision

For years, the Haredi community has resisted efforts to conscript its members. The Israeli High Court of Justice has lost its patience, as reported here. Seventy-six thousand men have failed to report for mandatory duty.

What to wear?

Femi Falana, a senior advocate in Nigeria, has raised the question of whether robes must be worn by counsel in Nigeria's pending multi-accused general court-martial. Details here. Which governs -- the court's order or the Rules of Professional Conduct for Legal Practitioners, 2023?

Outrage Trails DHQ Secret Court-Martial As Military Officers Appear In Leg Chains, Battle Untreated Infections, Families Barred From Proceedings

 At Sahara Reporters, there is a piece with the title that I have used here.

The General Court Martial convened by Nigeria’s Defense Headquarters (DHQ) in Abuja has sparked outrage following allegations of inhumane treatment of the detained military officers, denial of fair hearing, and total exclusion of family members from proceedings, SaharaReporters has learned.

No fewer than 36 officers who are currently standing trial over alleged coup-related offences were brought before the court in leg chains, with several of them displaying visible signs of physical abuse, including untreated infections and deteriorating health conditions, SaharaReporters further gathered. . . .

[T]he court martial was convened by Major General AM Alechenu, Commander of the Defence Headquarters Garrison, under the Armed Forces Act.

The panel is chaired by Air Vice Marshal HI Alhaji, alongside senior military officers drawn from the Nigerian Army, Navy, and Air Force.

War Crimes Prosecution of the Century: Australian Accountability

This terrific essay by two experienced  and thoughtful Army judge advocates outlines the myriad issues involved in what truly may be the war crimes prosecution of the century -- not only for Australia, but for the world. While the erudite lawyers' essay focuses on evidentiary and other trial-related challenges in Australia's prosecution of Ben Roberts-Smith, it appropriately brings to fore the the political, social and cultural obstacles to trying Australia's most decorated living military veteran for multiple counts of murder on the battlefield.

Such dynamics are present in many if not most war crimes trials, and they are on steroids here given that Roberts-Smith is a national war hero who had been awarded the nation's highest military honor.  If the U.S. military community thought Navy SEAL Eddie Gallagher's court-martial for alleged war crimes several years ago was a made-for-TV show, fraught with political baggage -- tune in to what's happening on the other side of the world in this Aussie prosecution. 

Interestingly while Australia does the hard and required thing to comply with its legal obligations to ensure fair accountability for alleged war crimes, Israel recently witnessed seemingly the exact opposite with its shameful handling of the criminal case against IDF soldiers for their "alleged" (captured on video, hence the quotation marks) brutalization of Palestinian detainees during the Gaza War. For more on that episode of a severe lack of accountability for war crimes and the immense political and social pressure that led to such impunity, see this piece by two leading experts in the field. 

Moral legitimacy is hard to come by, and Australia sure seems to be working on building its own while other nations -- including the U.S., given its military serial murder campaign (crimes against humanity) in the Caribbean and threatened war crimes in Iran -- sadly move in the opposite direction.

Not military justice, but . . .

Prof. Michael Schmitt has posted this extraordinary (and extraordinarily timely) essay on Just Security, titled A Primer on Just War Theory and the Iran War. Read the whole thing; here are his Concluding Reflections:

While States must be guided by extant international law when considering whether and how to use force, its rules set only the legal boundaries that they may not cross, whether through action or omission. The decisions our leaders make must equally be informed by moral considerations, which seem in short supply in the ongoing conflicts. Just war doctrine helps calibrate the moral compass that should inform such decisions and serves as a useful framework for balancing military and humanitarian considerations when interpreting international law rules that may not offer clear guidance in the attendant circumstances. Despite the Vice President’s pontification on the matter, I will stick with the views of the Pontiff on the interpretation of the doctrine.

As to the broader dispute between the Trump administration and the Holy See, it is worth remembering that Popes have been instrumental in advancing positive political change. The obvious example is Pope John Paul II, who, by championing human rights, self-determination, and religious freedom, played a pivotal role in undermining autocratic communist regimes and fostering democracy in the former Soviet Union, Eastern Europe, and beyond. Pope Leo is following in this proud tradition in speaking out on issues of war and peace.

Lastly, with regard to the ongoing conflict between the United States and Iran, David Brooks insightfully observed on the PBS NewsHour Friday that we are seeing a “contrast between the way Trump has gone into this war, which is cavalier in the extreme, and Catholic just war theory, which traces back to Augustine and Aquinas, [and] which is intellectually rigorous.” This leads him to conclude, rightly so in my opinion, that the Pope is “trying to put [in place] an intellectual, rigorous process on how you evaluate a very deadly policy. And the Trump administration is completely incapable of thinking in these terms.”

It seems appropriate to close this essay on the Trump administration and the Catholic Church with an extract from the Catechism itself (¶ 2317):

Injustice, excessive economic or social inequalities, envy, distrust, and pride raging among men and nations constantly threaten peace and cause wars. Everything done to overcome these disorders contributes to building up peace and avoiding war.

You don’t need to be Catholic to grasp the wisdom of the observation.

Shany and Cohen on the end of the Sde Teiman case

Lawfare has published this sober (and sobering) review by Professors Yuval Shany and Amichai Cohen of the Sde Teiman affair in Israel. Excerpt:

While the MAG’s decision to withdraw the charges against the accused soldiers can perhaps be justified by the combined effect of the case’s evidentiary problems and the potential procedural consequences of the parallel prosecutorial misconduct investigation, the overall outcome of the case raises serious concerns. First, the withdrawal of the case, notwithstanding the extreme seriousness of the charges, creates a risk of impunity and indirectly endorsing the right-wing narrative of the “framing” of the Sde Teiman Five. The soft language in the decision concerning a “grave and troubling” sequence of events does not amount to a clear acknowledgment of unlawfulness of the soldiers’ conduct, nor an effective repudiation of the claim that the military legal system had wrongly framed them. The celebratory manner in which right-wing politicians and the right-wing media have received the decision is likely to reaffirm their “Israel-can-do-no-wrong” narrative, which, in turn, delegitimizes efforts to hold IDF service members accountable for crimes committed against Palestinians.

Second, although the decision refers to professional considerations, it’s impossible to ignore the severe political pressures surrounding the case—including political efforts to discredit the MAG Corps. The leak and cover-up scandal, which was an unwise and allegedly unlawful reaction to the political pressure, further weakened the corps, in a manner that calls into question their ability to conduct high-profile prosecutions against IDF service members. The underwhelming record, so far, of criminal investigations in connection with the Israel-Hamas war (according to IDF statistics published in May 2025, about 1,500 operational investigations and some 60 criminal investigations were opened—excluding investigations of looting—and two criminal prosecutions were filed) raises concerns as to whether the MAG is willing and able to conduct criminal cases in the face of an increasingly hostile political climate. Unless corrected through robust action in other pending investigations, this impression is likely to greatly complicate Israel’s efforts to claim complementary or subsidiarity before international and foreign criminal courts.

Finally, the decision confirms long-standing concerns about the contagious effects of rule-of-law deficiencies in the military justice system and the broader Israeli legal system. The Sde Teiman scandal started with a misuse of a detention facility because the minister of national security had intervened politically in the policy of detainee incarceration. It continued with the Supreme Court dragging its feet to hear the case, and with the Israeli government’s failure to facilitate international visits by the International Committee of the Red Cross to the detention center.

The serious abuse of detainees in Sde Teiman was initially handled strongly by the military police, but the strong political backlash has pushed the military legal system into a tailspin, resulting in professional misconduct and a thwarted prosecution. Cumulatively, the whole affair marks a low point for the rule of law in Israel. In order to bounce back, the legal system, including the military legal system, should find a way to assert its authority vis-a-vis the political environment—a development that appears unlikely in today’s climate of increased hostility between the legal and political universes in Israel.

The tank top case

Last day of active duty? Don't wear a tank top or short skirt. The Times of Israel has the story here. Excerpt:

Another of the soldiers’ mothers suggested on Facebook that her daughter’s “show trial” was a case study in misogyny.

“What was the point? To educate? To make an example of them? To stop them from repeating the horrible act of wearing jeans and a tank top?” wrote the mother, an attorney, on Facebook. “I wonder if male soldiers being discharged while wearing a tank top would have also been court-martialed. For some reason, I think not.”

In wartime? 

Ad hoc military judges?

It sounds like the not-so-good -old-days of military justice, but it's a proposal being floagted now in Indonesia. Consider this Kompas.id report:

The proposal to involve ad hoc judges in handling the acid attack case against KontraS activist Andri Yunus, as conveyed by Vice President Gibran Rakabuming, is considered difficult to realize.

The placement of ad hoc judges in the military justice system must be accompanied by fundamental legal steps, such as issuing a Government Regulation in Lieu of Law (Perppu) or revising Law Number 31 of 1997 concerning Military Justice. Normatively, current military justice procedural law does not recognize ad hoc judges.

The proposal has met opposition, with some saying it's more important to enact a revised Military Justice Law. 

"Double" jeopardy

Under the UCMJ, a U.S. servicemember can be prosecuted at court-martial even when a state court has tried him--there is no U.S. Constitutional double jeopardy bar--two different sovereigns. This rule allows for court-martial even if the servicemember is tried and acquitted in a state civilian trial. Hennis (CAAF) is a good example. He was tried and acquitted of murder three times in a civilian court. Years later, advances in DNA led to a court-martial, a conviction, and he is awaiting a death sentence.

If the crime is handled in federal district court, then double jeopardy applies for (only) offenses handled in federal court--a court-martial and a federal district court are the same sovereign. There are cases of prosecutions in federal court and at court-martial, where the court-martial charges were not prosecuted in federal court, even when the charges arise from the same general conduct. However, United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020), presents a cautionary tale. 

There is a Memorandum of Understanding between the Department of Defense and the Department of Justice that addresses who will prosecute when both parties to the memorandum have an interest in prosecution. 

Anyway, this brings us to a recent decision from the Supreme Court of India.

The Supreme Court on Wednesday (April 15) observed that once the defence forces have elected a continuation of criminal proceedings over the disciplinary proceedings, then acquittal in a criminal proceeding would bar the subsequent initiation of the disciplinary proceedings against a defence personnel. Setting aside the Delhi High Court's Division bench judgment, a bench of Justice Dipankar Datta and Justice KV Viswanathan restored the honour of an ex-Air Force personnel, with granting consequential service benefits nearly after three decades, who was subjected to a disciplinary inquiry post-acquittal in a criminal proceeding.

A U.S. servicemember prosecuted in state or federal court, regardless of an acquittal, may be administratively removed from the service, based on that conviction or acquittal. There are several "disciplinary" processes available to a commander, Service Secretary, or the President, depending on the person's rank.

A servicemember can be processed for an administrative discharge characterized as "service" Under Other Than Honorable Conditions (OTH). He is entitled to Fifth Amendment due process through a hearing, counsel, and the opportunity to present evidence. An OTH carries both stigma and adverse employment and social consequences — this is not a Dishonorable Discharge adjudged at a court-martial, but the effects are the same. The basis is for separation is the commission of serious misconduct. Whether there is an acquittal is largely irrelevant because it's the underlying conduct that matters. Acquittal is generally not considered a finding of innocence, especially where the standard of proof in an administrative hearing is by a preponderance of the evidence.

For a convicted officer sentenced to confinement, the President can drop him from the Rolls and sever his connection to the military--even if retired at the time of the conviction. Another option may be a reduction in rank upon or in retirement. Grazioplene is  a useful example. A major general convicted of serious offenses, committed while on active duty, after retiring, was reduced to the rank of second lieutenant in retirement (the lowest officer grade). See 10 U.S.C. § 1161(b), read with 10 U.S.C. § 1167 (see para. 1161(a)(3)). Note that in Clinton v. Goldsmith, 526 U.S. 529 (1999). The Supreme Court described the drop-from-rolls action as an executive/personnel action, not part of the court-martial findings or sentence, and held that the Court of Appeals for the Armed Forces lacked jurisdiction to enjoin it under the All Writs Act.

The Supreme Court of India also "ordered the grant of a farewell for him." Interesting that the court can order a retirement ceremony and follow-on party.

Click here to download judgment:

https://www.livelaw.in/supreme-court/air-force-act-disciplinary-proceedings-cant-be-initiated-against-officer-discharged-in-criminal-trial-on-same-charge-supreme-court-530476

Annual reports of the TJAGs

All but one of last year's annual reports are now available. Caseloads continue to decline.

Project Outreach

The U.S. Air Force Court of Criminal Appeals recently made a Project Outreach visit to Syracuse University's College of Law. Here's a worthwhile report. Excerpt:

Those who participate in Project Outreach write amicus briefs and present live oral arguments, duties that help them make the leap from classroom to courtroom.

Second-year law students Ava Dussmann and Hannah Rice were part of the amicus curiae for the U.S. Government (i.e., the appellee). On track to become Air Force judge advocates, or JAGs, they found the experience eye opening. Real people. Real cases. No room for error.

“I was grateful for the opportunity to step into this world that has been a dream of mine for such a long time and work with an amazing team of students, professors and practitioners in the field,” Dussmann says. “Through this opportunity, we got to research and learn about the contours of the Uniform Code of Military Justice.”

Rice adds that sitting before three Air Force colonels, arguing a real case with classmates who might someday be her colleagues, is when “theory turned into practice.”

High and tight cut in Austrian ruling

Times change, they say. Consider this account of a recent decision of the Constitutional Court of Austria: hair requirements cannot discriminate between women and men in the armed frorces. Excerpt:

Austria’s Constitutional Court struck down the military’s strict short-hair requirement for male soldiers in Vienna on Thursday. The policy must be scrapped and replaced with a grooming code that complies with constitutional standards for both men and women. The judges concluded the contested provisions conflicted with equality protections and interfered with personal rights. 

The decision ends a longstanding mandate that male professional soldiers and conscripts keep their hair short enough not to touch the collar. The case reached the court after a soldier challenged the policy following an order that he pay a €2,200 fine for wearing his hair in a ponytail, according to BTA. The court determined that the stricter standards for men could not be justified and had to be removed as inconsistent with the principle of equal treatment.

Wikipedia has this article on "high and tight." Want to know more about military hairstyles? Check this out.

Are you asking for a friend?

Here's a useful primer on conscientious objection in the U.S. Armed Forces. Excerpt:

In a volunteer force, that requirement can be difficult to meet in practice. Service members who willingly entered military service must show that their objection is not tied to a specific conflict or circumstance, but reflects a broader opposition to all war. That distinction can be challenging to establish, particularly when the claimed change in belief arises after an entirely voluntary enlistment or in proximity to deployment.

The requirement that objections apply to “war in any form” reflects a policy judgment. Allowing selective objection would undermine the military’s ability to deploy forces consistently and could create inequities among service members.

Timing is another important limitation. While individuals can apply for conscientious objector status after entering service, late claims may be scrutinized more closely, especially if they arise around a deployment or disciplinary action. That does not automatically disqualify the claim, but it may affect how sincerity is evaluated.

Where should this case be tried? (another in a series)

South Korean military personnel are accused of having participated in a failed attempt to impose martial law. Should the case be tried in civilian court or a court-martial? The special prosecutor is appealing a transfer of the case to the military justice system. What to do? Excerpt:

According to the special counsel and other sources on Tuesday, the dedicated insurrection trial division — the 38-1st Criminal Division of the Seoul Central District Court (Presiding Judge Jang Seong-jin) — transferred the cases of three military generals and five colonels to the Central Regional Military Court. The defendants include former Army 1st Corps 2nd Armored Brigade Commander Brig. Gen. Ku Sam-hoe and former Ministry of National Defense Innovation Planning Director Brig. Gen. Bang Jeong-hwan, all facing charges including engaging in critical insurrection duties.

The court explained its reasoning for the transfer, stating, "The dedicated insurrection trial division law only stipulates exclusive jurisdiction over insurrection cases and does not contain explicit provisions regarding judicial authority." The court added, "Judicial authority over these cases lies with the military court."

The special counsel team said Tuesday, "We have requested the Ministry of National Defense to refer the cases to the insurrection special counsel under Articles 7(1) and 7(2) of the Insurrection Special Counsel Act, so that the dedicated insurrection trial division of the Seoul Central District Court can hear them for swift and efficient prosecution."