Kelly v. Hegseth

The complaint in Sen. Mark Kelly's case against Defense Secretary Pete Hegseth et al. can be found here.

A case to watch from the Philippines

A passed-over colonel with 34 years of service in the Philippine Army is facing charges based on a social media post which went viral and is said to have indicated a withdrawal of support for the country's president. Tempo has the story here. Excerpt:

Malacañang confirmed that President [Ferdinand] Marcos [Jr.] is closely monitoring the situation. Presidential Communications Office Undersecretary Claire Castro said the President will allow due process to take its course as the Armed Forces of the Philippines (AFP) conducts its probe.

“Due process ang pairalin at ang kung ano ang sinasabi ng batas iyon ang ipapatupad,” Castro emphasized.

Military officials clarified that [Col. Audie A.] Mongao’s relief does not equate to a finding of guilt, stressing that proceedings are ongoing.

The AFP leadership reiterated its call for personnel to remain apolitical, loyal to the Constitution, and steadfast in fulfilling their mandate amid political developments.

Conduct unbecoming is among the charges under consideration. The Philippine Articles of War can be found here. 

Military trial of civilians in Vietnam

Le Courrier du Vietnam reports here on the military court trial of several civilian officials on fraud and land management charges involving the former Nha Trang airport. Excerpt:

According to the Judgment Council, this is a criminal case of particular gravity. Defendants holding positions within the People's Committee of Khanh Hoa Province and agencies under the Ministry of Defense failed to properly fulfill their responsibilities in the recovery, handover of land and allocation of the project, allowing Nguyen Van Hau (former chairman of the Phuc Son Group), Tran Huu Dinh and Nguyen Thi Hang to conclude land transfer contracts and illegally mobilize funds to fraudulently appropriate the property of others.

For violating land management rules, the court sentenced Nguyen Chien Thang, former chairman of the People's Committee of Khanh Hoa Province, to four years in prison; Le Duc Vinh, former chairman of the Provincial People's Committee, and Dao Cong Thien, former vice-chairman, to three years and six months in prison each; Vo Tan Thai, former director of the Khanh Hoa Department of Natural Resources and Environment, to three years and six months in prison; Hoang Viet Quang, former brigadier general, former deputy director of the Operations Department (Ministry of National Defence), and Nguyen Duy Cuong, former brigadier general, former rector of the Aviation Officers' School, to two years and six months in prison each.

For fraud, the court sentenced Nguyen Van Hau, former chairman of the Phuc Son group, to 11 years in prison; Tran Huu Dinh, former director of the Nam A investment company, to eight years and six months in prison; Nguyen Thi Hang, former deputy general manager of the Phuc Son group, to seven years and six months in prison.

Only two of the defendants appear to have had military status -- and it seems that they were retirees.

Human rights jurisprudence strongly disfavors the exercise of court-martial jurisdiction over civilians.

Uganda Law Society sues over military trials of civilians

The Uganda Law Society has filed a case with the East African Court of Justice concerning the government's continued use of court-martial proceedings to prosecute civilians, despite last year's contrary Kabaziguruka decision of the country's Supreme Court. The Monitor has the story here.

Terms of office for general court-martial and court of criminal appeals judges

Readers of Global Military Justice Reform who are concerned with judicial independence may be interested in consulting the Reference Materials on Terms of Office for General Court-Martial and Court of Criminal Appeals Judges (Jan. 9, 2026). These can be found here, here, here, here, and here.

The Editor's Introduction, Summary and Recommendations:

These Reference Materials on Terms of Office for General Court-Martial and Court of Criminal Appeals Judges have been assembled for the use of military and civilian legal scholars; practitioners and judges in courts-martial and on appellate or collateral review; the Judge Advocates General; the Joint Service Committee on Military Justice; the Office of General Counsel of the Department of Defense; the House and Senate Committees on Armed Services; and the media.

Pursuant to the Freedom of Information Act (FOIA), each branch of the U.S. armed forces was asked for all agency records “that state the specific start- and end-date for the judicial term of office” of each current general court-martial and service Court of Criminal Appeals judge, including both regular and reserve component officers. The responses are reproduced in these materials. Army, Air Force, and Coast Guard records were obtained in 2025-26 only after complaints were filed in federal district court. Because the Navy reported in 2025 that there were no records responsive to the FOIA request, it was not included in the litigation. No armed force produced documents from any judge’s official military personnel file. The Air Force’s response does not provide any information about end-dates. In addition, the one-page table attached as “Judges Names and Tour Dates” provides only the month and year of start-dates, rather than the specific initial day.

The service regulations and sparse (and in some respects nonresponsive) records obtained depict a trial and appellate judicial system that is neither uniform nor in compliance with the “term” requirement of Rule for Courts-Martial 502(c)(2). The word “term” connotes a defined period of time that is known in advance, rather than a floor with no fixed end-date. 

Additional issues arise in connection with the use of reserve component judge advocates as trial and appellate judges (i.e., how does a “term” function when the officer’s call to duty is episodic) and, in the case of the Coast Guard Court of Criminal Appeals, the civilian judges who seem to have entirely undefined tenure. 

Service rules shed no light on when judicial terms begin and end. In addition, they include escape clauses that undermine their obvious purpose. In the case of the Coast Guard, the rules improperly permit judges to have terms shorter than the minimum where the officer wishes to try out the assignment.

Remedial action should be taken to correct the services’ violations of R.C.M. 502(c)(2) and ensure uniformity across service lines going forward. There is no plausible basis for inter-service disparities, given the uniformity principle set forth in Article 36(b), UCMJ. Compliance with the R.C.M. will foster public confidence in the administration of military justice by fully and finally embracing the central traditional tool for protecting judicial independence.

The President should clarify the Manual to ensure service compliance and uniformity. Consideration could usefully be given as well to increasing the mandatory minimum to the eight-year terms afforded to full-time federal magistrate judges under 28 U.S.C. § 631(e).

Feel free to share these materials. Information concerning pertinent litigation, regulatory changes, or legislative activity will be appreciated and can be sent to me at eugene.fidell@yale.edu.

One wonders what the charge is

This just in from the Jerusalem Post:

The IDF is court-martialing a Givati Brigade company commander in the Northern Command for dumping urine on his soldiers’ clothes in an attempt to discipline them.

Earlier, some of the IDF soldiers at a forward position – where presumably there was no bathroom – had urinated in bottles and thrown the bottles behind the post.

Their actions angered their commander, who retaliated by dumping the urine from their bottles all over their room, clothing, and belongings, causing a nasty stench among other problems.

Dividing the caseload

When it created the Offices of Special Trial Counsels, Congress set in place two parallel charging systems under the Uniform Code of Military Justice, one in which the STCs make disposition decisions over some cases and the traditional George III model in which nonlawyer commanders make disposition decisions for everything else. This seems wasteful. 

A big question is whether so little is now left to commander convening authorities that the old system should be shut down and that chunk of cases shifted to the STCs. According to this U.S. Army report, "[a]s of Dec. 28, 2024, the OSTC’s first fully operational year, prosecutors reviewed more than 9,500 criminal investigations and exercised authority over 5,600 of those cases, according to OSTC." This seems to mean that nearly 59% of cases go into the STC basket. It will be interesting to see if a trend emerges in future years. If the convening authority caseload declines, Congress will want to consider shifting everything to the STCs.

What's a lawful order?

Prof, Dan Maurer sheds light on this core (and timely) issue of military law here on Lawfare. His conclusion:

Clarifying the definition of an “unlawful order” and making the disobedience of an unlawful order an affirmative duty is both legislatively feasible and a practical imperative, considering the contemporary challenges facing the military under an administration that routinely pushes on the boundaries of legality. The six recommendations above do not contradict any existing military case law or any existing provision in the UCMJ. Instead, they preserve the necessary “inference of lawfulness” while acknowledging the real-world influences that inform a soldier’s inferences, and they add a duty to seek confirmation of legality when in doubt. These recommendations together refine and codify language already found scattered across relevant provisions in the MCM. In other words, the only new thing Congress would create is clarity in a notoriously opaque area of military law at a time when definitions are essential to ensure the military itself remains subordinate only to lawful commands by civilian authority.

It is difficult, at this point, to speculate on whether Congress would actively consider such recommendations. However, it is not so speculative to say that President Trump would not sign such legislation into law, nor approve of these amendments to the Manual for Courts-Martial. These recommended reforms should spark an overdue conversation and serve as a template from which to build such reform when the political winds are more favorable.

Pakistan, civilians in military court

Nouman Ali, Fair Trial Rights under Military Jurisdiction: Constitutional and International Perspectives from Pakistan and the UK. IX Int'. J. Res. and Innovation Soc. Sci. (IJRISS), October 2025.

Abstract

The rule of law and right of a fair trial and judgment forms the cornerstone of constitutional democracy. The eighteen amendments of constitution of Pakistan, Article 10A (2010) shipped the process from a judicial principle into a constitutional guarantee. This study aims to examine how these constitutional guarantees operate in practice when civilians are tried in military courts, using a comparative approach. however, the chronic trial of civilians before military courts continues to this guarantee. Basically, this is designed for maintaining discipline for the military, but these courts have enlarged their jurisdiction and include civilians blamed of terrorism also do wrong offences against state security. This study shows how Pakistan resolves its military jurisdiction through international obligations and national constitution to ensure a fair trial. This study examines Pakistan's legal and constitutional framework, as well as Britain’s neighboring Findley (sic). International human rights level Article 14 of the International Covenant on Civil and Political Rights and the general recommendation of the United Nations Commission on Human Rights 32. The study shows Pakistan’s main structural defects: the discreet methods, command influence, weak appeal rights, the absence of civilian oversight and explanation for legislation, and gaps in judicial and institutional processes. Comparative study with the British demonstrates that operational discipline and judicial freedom can coexist within constitutional checks. This article shows the reform structure proposing self-reliance appellate procedure, and also show governance reforms, and the supervision of parliament to match Pakistan’s military lawfulness with domestic fair trial and international fair-trial standards.

It thus recommends an independent appellate process, enhanced civilian oversight, and stronger parliamentary supervision to align Pakistan’s military justice with domestic and international fair trial standards.

Military v. civilian court jurisdiction in Indonesia

This article in the November/December 2025 issue of the International Journal of Management Studies and Social Science Research addresses the tension between the civilian and military court systems in Indonesia for offenses committed by military personnel. Excerpt:

Article 65 paragraph (2) of the TNI Law states that TNI soldiers are subject to military justice if they commit violations of military law, while for general crimes, the resolution is carried out in accordance with statutory regulations. This norm emphasizes that not all actions of soldiers fall under military jurisdiction, so the distinction depends on the type of crime committed. In practice, the absolute competence of general courts over general crimes committed by TNI soldiers has not been fully implemented. This occurs because Law No. 31 of 1997 has not been revised and still gives broad jurisdiction to military courts. This conflict of norms gives rise to dualism which has an impact on the difficulty of determining the appropriate forum when soldiers commit general crimes.

The authors conclude:

The Absolute Competence of Military Courts Over Criminal Acts by TNI Soldiers Has Not Been Fully Implemented The absolute competence of general courts over general crimes committed by TNI soldiers has not been fully implemented. This is because Law No. 31 of 1997 has not been revised and still grants broad jurisdiction to military courts. This conflicting norm has given rise to a dualism that makes it difficult to determine the appropriate forum when soldiers commit general crimes. The implementation of Article 65 paragraph (2) of the TNI Law has not yet fully proceeded as expected. Various normative, institutional, technical, and cultural obstacles still hinder the transfer of authority for examining general crimes by TNI personnel to general courts. Furthermore, the lack of regulatory harmonization and poor inter-institutional coordination have reinforced the status quo, thus preventing significant change in the military criminal justice system.Taking these findings into account, this study believes that strategic regulatory, institutional, and operational measures are necessary to optimally achieve the objectives of legal reform.

Military justice in modern history

This extensive (386-page) tome, edited by Kelly Maddox, Tino Schölz, Nicolas Stassar, and Urs Matthias Zachmann, includes numerous essays of interest and can be downloaded here. The book's subtitle is "The Adjudication of War and Violence in a Globalising World." From the front matter:

This volume derives from a conference on comparative military justice hosted at Freie Universität Berlin in July 2022 as part of the project “Law without Mercy: Japanese Courts-Martial and Military Courts during the Asia-Pacific War, 1937–1945”. This project’s principal aim has been to advance the historical understanding of the inherent reasons and mechanisms of mass violence during the Asia-Pacific War and the role that military justice played in it. For more information, please visit https://www.lawwithoutmercy.eu/. The project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no. 819892). It was also financed in part by the open access fund for books of Freie Universität Berlin.

Conditioning public access to courts-martial

ChosunBiz reports here on a recent decision of South Korea's National Human Rights Commission. At issue was, among other things, whether spectators at a court-martial could be required to sign a pledge not to bring in their cellphones during proceedings. Excerpt:

[T]he NHRC said it determined that "the Court-martial's requiring the submission of a pledge when entering a military unit" lacks a legal basis and could infringe on freedom of conscience under the Constitution, and that "the current environment for observing military trials" could undermine the effective guarantee of the constitutional right to know and the principle of open trials.

The NHRC conveyed the opinion to the Minister of the Ministry of National Defense that, instead of a pledge, there is a need to receive the submission of a "guidance and acknowledgment form on the protection of military secrets, etc." and to issue a copy. It added that it is also necessary to prepare and implement measures to enhance spectators' accessibility to the Court-martial (a mid- to long-term roadmap, such as installing an off-base entrance for the Court-martial).

The Commission's last point is interesting. At the UK's Military Court Centres, it is possible to enter the courtroom area directly from a public parking lot. From the government website:

The courts are located on the perimeter of a military establishment. This design provides public access to the Service Courts. The public entrance is staffed by the personnel from Military Provost Guard Service who employ security screening checks as a condition of entry.