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."

Memo to Spanish Army sergeants: do not abuse your subordinates

Thus spake the Military Chamber of the Spanish Supreme court in this case. Excerpt from the news account:

The first comment for which he was convicted occurred at the end of a shooting exercise, when the sergeant told the soldier, "Get in the truck, your comrades are going to give you a bukkake ." The second incident took place after the soldier had shaved the back of her neck and her superior asked her "if she had become a lesbian and if she was now using dildos."

HH Judge Jeff Blackett, “The legality of the use of armed force against Iran”

In a recent post, HHJ Jeff Blackett, OBE, has commented on the lawfulness of the joint Israeli and American use of force against Iran.

The essay advances a doctrinal and normative claim about the lawfulness of the use of force against Iran. Doctrinally, the argument is that the United States and Israel could lawfully resort to force on two distinct bases: first, self-defense under Article 51 of the U.N. Charter beginning on February 28, 2026; and second, Security Council authorization following the adoption of Resolution 2817 on March 11, 2026. Normatively, it contends that the Charter should not be interpreted through an unduly narrow, historically fixed reading that fails to account for contemporary threats such as proxy warfare, transnational terrorism, and nuclear proliferation.

The essay frames the Article 51 argument around three asserted predicates. For Israel, it points to Iranian support for armed attacks by Hamas, Hezbollah, and the Houthis. For the United States, he relies on Iran-sponsored attacks against Americans and U.S. facilities. For both states, it adds Iran’s alleged continued pursuit of nuclear weapons, coupled with openly hostile rhetoric toward the United States and Israel. On this view, Iran’s conduct satisfies the threshold for self-defense not merely through direct state action, but also through substantial involvement in proxy violence and through the scale of the danger posed by a developing nuclear capability.

The essay then places considerable weight on Resolution 2817, which we should read as a resolution condemning Iranian attacks on neighboring Gulf states, threats to close the Strait of Hormuz, and affirming the inherent right of individual and collective self-defense. The essay further suggests that the absence of Security Council condemnation of prior U.S. and Israeli actions implies retrospective validation and furnishes a legal basis for continued or broader multinational action. That is a notably expansive reading of the resolution’s legal effect, and it is central to the claim that force was lawful both before and after March 11.

The major theme is an institutional critique. The argument goes that the Charter’s collective-security design has not functioned as intended because the veto has often impeded rather than enabled peace enforcement. There is emphasis on the failure of the Military Staff Committee and the collapse of the Charter’s expectation that member states would maintain forces available for rapid U.N. action. These structural failures help explain why states have increasingly relied on self-defense rationales rather than awaiting Security Council consensus. We, therefore, are presented with contemporary law on the use of force as a product not only of treaty text, but also of state practice developing in response to institutional paralysis.

The legal analysis of self-defense relies heavily on the evolution of “armed attack” and “imminence.” The International Court of Justice’s reasoning in Nicaragua supports the proposition that a state may commit an armed attack through proxies, irregulars, or substantial involvement with non-state actors. Also, post-9/11 practice argues that terrorist attacks can trigger Article 51. From there, the essay endorses an expanded conception of anticipatory self-defense, drawing on the Caroline formula but arguing that imminence should now be assessed not only temporally, but also by reference to the gravity of the threatened harm, the adversary’s capabilities, and the nature of the potential attack.

At the same time, the essay expressly limits the scope of its intervention. While the legality of resort to force is addressed, how hostilities are conducted is not; for example, even a lawful initial use of force does not immunize a state from later violations of the law of armed conflict. In sum, the essay offers a modernization thesis: Article 51 must evolve through state practice to remain operationally relevant in an era defined by proxy violence, terrorism, and existential strategic threats.

Comment on Convoluted Paths

"ON DAY NUMBER 1, EVERYONE ASSOCIATED WITH A CASE SHOULD KNOW WHAT DAY WILL BE NUMBER 120."

United States v. Carlisle, 25 M.J. 426, 428 (C.M.A. 1988); see also United States v. Wilson, 72 M.J. 347, 358 (C.A.A.F. 2013) (Cox, S.J., dissenting).

A court martial stayed for delay - a convoluted path

Last Wednesday, the Court Martial Appeal Court of Canada (CMAC) upheld a stay of prosecution for delay.  While this judgment is unlikely to have a marked impact on jurisprudence in Canadian military law, it may impact the manner in which the Canadian Military Prosecution Service (CMPS) governs itself. 

In R v Jacques, 2026 CMAC 3, Chief Justice Mary Gleason (on behalf of a unanimous bench) dismissed both the appeal by the Director of Military Prosecutions (DMP) - on behalf of the Minister - and the cross-appeal by Major Jacques (retired).

And it is illustrative that Major Jacques was still serving when the process began, but was retired by the time that the appeal was heard.

This matter has a relatively long history.  It is, perhaps, not as long as some well-aged grievances in the Canadian Forces grievance process, but the judgment of the CMAC marks the (likely) end of a process that has taken nearly 7 years.
 
This judgment concerns the application of the framework established by the Supreme Court of Canada (SCC) under R v Jordan, 2016 SCC 27 (the "Jordan framework") as applied at court martial.  This framework is used to assist in determining if an accused has been denied trial within a reasonable amount of time, thereby contravening the accused right under s 11(b) of the Canadian Charter of Rights and Freedoms (Charter).

Hazing in Argentina

    Michael Verón, 26 years of age, became a victim of a "welcome" ritual on his military base in the province of Misiones in Argentina, where he became a paraplegic and lost consciousness for 21 days.  The event occurred on June 8, 1922, when the victim, who suffered a serious, irreversible, spinal cord injury after having been subjected to abusive and humiliating practices known as the "promotion baptism," could no longer feel his extremities or move.  The "baptism" involved the victim taking on the expense of making a barbecue for everyone, and then forcing him to drink too much alcohol and food, and then to fling himself repeatedly into a swimming pool with very little water.

In this context, Verón, when speaking in public, said that he could no longer remember whether he fell into the pool, or was pushed or whether they threw him into it.  His injuries occurred in the swimming pool when he was obliged to throw himself into the pool for the third time.  Each activity was ordered as part of the ritual. He said that there has to be a final stop to these brutal rituals within the military.

A total of 25 members of the base were submitted to the Disciplinary Council of the Army. The investigation ended with 15 members of the military getting light sanctions, another 7 received 60 days  arrest and 4 were removed from their posts, having been held to have principal responsibility for the ritual.

A similar case occurred with the death of Matías Chirino (22) on June 18, 2025.  He died of bronchial aspiration during a similar ritual and the members of the military responsible were tried for homicide.  The federal court has also taken up the case of Verón, but since he is not dead those responsible are being tried for responsibility for the victim's "serious injuries."  The military has assumed charge of his medical care and four years later he is still unable to move or feel his legs.

Stiffer penalties coming in Taiwan

Taiwan is considering stiffer penalties for certain national security offenses by military personnel. Reporting here from the Taipei Times. Excerpt:

The Ministry of National Defense is addressing Taiwan’s light sentences for national security contraventions through legal reforms and by improving internal military security, while pushing amendments to the Military Trial Act, Minister of National Defense Wellington Koo said today.

Koo’s statement comes after the Control Yuan yesterday urged stricter punishments for military personnel convicted of contravening national security regulations by spying for China, saying that the average sentence is 12.7 times shorter than in other democratic countries.

The ministry has proposed amendments to the Criminal Code of the Armed Forces increasing the penalties for expressing “loyalty” to the enemy and for “conspiracy” and “premeditation,” Koo said.

2026 CAAF CLE and training program

This year's USCAAF CLE and Training Program will be held at Antonin Scalia Law School in Arlington, VA, on May 13-14. The program looks both interesting and worthwhile. You can find it here. Registration information can be found here.

A note on the prosecution of civilians by DRC military courts

Legality of Prosecutions Brought by the Military Prosecutors' Office Against Civilians in the DRC: Analysis in Light of the Constitutional Principle of Legality by François Lukangila N'subi and Jules Mupenda Kangamina can be downloaded here. Abstract:

This article examines the legality of prosecutions initiated by the military auditor against civilians in the Democratic Republic of Congo in light of the constitutional principle of legality and the right to one's natural judge. It demonstrates that, under the Constitution and the Military Judicial Code, military courts are, in principle, not competent to prosecute civilians, except in narrowly defined and legally established exceptions.

Through a legal, doctrinal, and jurisprudential analysis, the study highlights recurring abuses in judicial practice, where civilians are prosecuted by military prosecutors for ordinary criminal offenses that clearly fall under the jurisdiction of civil courts. The article emphasizes that the military prosecutor's office is a specialized institution primarily tasked with maintaining discipline within the armed forces and related services.

The study further exposes the illegality of certain practices involving the collection of judicial fees by military magistrates, particularly transactional fines and bail for provisional release, which are explicitly prohibited by military law. Such practices constitute a violation of the principle of equality before the law and may give rise to disciplinary, civil, and criminal liability. Ultimately, the article calls for strict enforcement of constitutional and legal provisions governing military jurisdiction, in order to safeguard fundamental rights, ensure legal certainty, and strengthen the rule of law in the Democratic Republic of Congo.

Sde Teiman (another in a series)

Michael Sfard writes here for +972 about the dénouement of the Sde Teiman affair in Israel. "The truth is that the reason for abandoning the facade of law enforcement is not evidentiary difficulties or harm to procedural fairness, but rather a change in the constellation of pressures applied to the Israeli legal system as a whole."

A habit Pakistan cannot break

Pakistan is now subjecting civilians to military coufrt trials in the Gilgit-Baltistan autonomous province. Details here. News18 reports:

The Inspector General of Police (IGP) for the region has formally declared that any protesters challenging the presence or authority of the Pakistan Army will now face the jurisdiction of military tribunals. This directive effectively criminalises legitimate dissent, turning political protest into an “army crime" and sparking a wave of legal and international outrage.

The insecurity of the current administration has been laid bare by the targeting of high-profile local figures. Among those now facing the weight of this military-legal machinery is Ehsan Ali, a 70-year-old veteran lawyer and activist. Ali was arrested following a speech delivered during an Iftar gathering—a traditional religious and social event—proving that the state now views even community dialogue as a direct threat to its stability. By branding a septuagenarian lawyer a military-grade threat, Rawalpindi is effectively imposing a form of “martial law by stealth" on a territory that Pakistan itself technically classifies as disputed, yet governs with colonial-era rigidity.

Who's on first?

Remember how the Supreme Court of Uganda invalidated the trial of civilians by court-martial. Now, a year later, numerous cases remain in limbo. Details here. Excerpt:

Adding complexity, the UPDF Amendment Act 2025 reintroduced provisions allowing military courts to handle cases under exceptional circumstances.

While the government argues the amendments improve transparency and independence within military courts, critics contend they contradict the Supreme Court ruling and risk expanding military jurisdiction over civilians.

For detainees caught in this legal limbo, the consequences are severe. Many remain incarcerated without clear legal status, as military courts no longer have jurisdiction but civilian courts have not yet assumed responsibility.

Legal experts warn that urgent intervention is required, either through legislative clarification, administrative coordination, or clear directives from the Judiciary and DPP, to prevent further erosion of public trust in Uganda’s justice system.

Can India's Armed Forces Tribunal hold the government in contempt for disobeying final orders?

Not if you ask the Delhi High Court. In this RawLaw article, the author summarizes (and provides a. downloaded copy of) the High Court's Feb. 23, 2026 decision in Union of India v. Dev. Excerpt from the article:

This ruling significantly clarifies the scope of contempt jurisdiction under the Armed Forces Tribunal Act. It prevents judicial overreach while safeguarding enforceability of tribunal orders.

The decision underscores that statutory tribunals cannot assume powers not conferred by Parliament. At the same time, it ensures that members of the Armed Forces are not left remediless, as High Courts retain contempt jurisdiction to enforce AFT orders.

Right to counsel of choice in Russian Army

There has been an important appellate ruling in a Russian court-martial case. A soldier who was accused of fraud and injuring himselfr (with mines!) had his conviction overturned because the trial proceeded without his chosen defense counsel. A lawyer provided by the army defended him instead. OC Media's Elizaveta Chukharova writes that "[t]he appellate court overturned the verdict, announced on 12 November 2025, citing procedural violations: [Nikolai] Khozumov had not been allowed to participate in the hearing with a lawyer of his choosing. Khozumov has been sent back to pre-trial detention awaiting a new trial."

The appellate court later overturned the verdict, citing a violation of the right to defence. The ruling states that the court refused to postpone the hearing despite the defendant’s relatives having retained a lawyer who was unable to attend at the scheduled time. Instead, the court appointed a state lawyer. The appellate court found this to be a procedural violation and ordered a retrial.

The appellate ruling also outlines other aspects of the case. In particular, the defence insisted on changing the preventive measure of pre-trial detention for Khozumov. In the appeal, the lawyer argued that the court of first instance had not presented sufficient evidence that the defendant might try to evade justice or obstruct the investigation.

The defence pointed to the suspect’s permanent residence, employment, positive character references, and lack of a criminal record. The lawyer also stated that the foreign trips cited by the court were related to business activities. However, the appellate court found these arguments unconvincing and upheld the measure of pre-trial detention.

No word yet on the outcome of the retrial. 

Giving reasons

Volume 63, No. 2 (2025) of the Military Law and the Law of War Review includes an interesting article by Liron A. Libman and Amichai Cohen titled Why do we enforce the law against IHL violations? Reason-giving in Israeli court-martial judgments. Abstract:

This study investigates the perceived purpose of enforcing International Humanitarian Law (IHL, also known as the Laws of Armed Conflict) by examining the underlying values cited in judicial reasoning. While traditional accounts of IHL’s development emphasize humanitarianism, critical theories point to state self-interest, such as the need to control emerging huge national armies in the second half of the 19th century.

To test how these theories are reflected in practice, we conducted a systematic content analysis of 60 years of Israeli courts martial judgments. We analysed how frequently different values (e.g., humanitarian concerns vs. force control) were invoked across different offence categories and over time.

Our findings reveal a significant distinction: humanitarian values are prominent in rulings on offences against life and physical integrity, whereas concerns for controlling military forces dominate property offence cases like pillage. This may imply that neither military self-interest nor humanitarianism can exclusively explain IHL rules and their enforcement. Furthermore, the values cited changed significantly over time, and explicit references to international law were scarce. These trends suggest judges adapt their reasoning to the prevailing Zeitgeist of judicial culture and populist sentiment. This methodology offers a promising approach for uncovering the hidden interests shaping IHL’s application.

TikTok military justice

A military judge in Somalia has become a TikTok star, as reported in this video. As the video notes, however, Human Rights Watch has questioned the Somalian military courts' practice of trying civilians suspected of terrorism.

Tragic fallout In Israeli alleged detainee abuse case

U.S. Supreme Court Justice Justice Benjamin N. Cardozo once noted that, "[t]he criminal goes free when the constable has blundered." 

In Israel, it seems that much more than a constable's blunder recently led to the dismissal of war crimes charges in the most controversial attempt to hold soldiers accountable for alleged war crimes during the Israel v. Gaza War. To wit, "Israel's military on Thursday said it was dropping charges against five soldiers accused of beating and sexually abusing a Palestinian detainee in an alleged assault partially caught on camera."

Prior to this dismissal, there was extraordinary public pressure (plus that from hardliners within the Netanyahu government and seemingly the prime minister himself) to ignore and thereby condone the disturbing detainee sexual abuse allegedly committed -- and captured on camera -- by five IDF troops on Palestinian prisoners at Sde Teiman prison. 

During this uproar, in response to pressure to ignore Israel's obligations under the law of war to investigate and hold soldiers accountable for war crimes, the top IDF military lawyer (MAG) leaked the video of the abuse (action she later admitted to), leading to her arrest for obstruction of justice (an Orwellian twist, given that it appears she was one of the courageous few actually pursuing justice).

Hence Cardozo's observation that the  "criminal goes free" has seemingly come to pass regarding the recent dismissal of indictments as reported here, further straining the IDF's reputation as law-abiding. This entire saga is one that demands deep attention, as it reveals dynamics that echo in the US as well as other nations, pitting those who excuse criminality by warfighters against those that understand that crimes such as detainee abuse (besides being inherently wrong) are morally corrosive to one's armed forces, and can sabotage long-term peace.

After Senator Kelly's comments on military orders

Eugene R. Fidell, Steven J. Lepper and William D. Baumgartner, Military Law on "Contemptuous Words" Should be Reformed. Just Security, 13 March 2026.

From the article.

Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:

Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” not the other way around!

Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.

On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.

On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten ‘obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers” (emphasis in original).

Academic freedom and U.S. JAG schools

Some reports have surfaced of academic activities at U.S. JAG schools that would raise questions about academic freedom had they occurred in civilian institutions. 

First, I spoke with one officer who was urged to not pursue an academic paper topic at one of the JAG schools because the viewpoint expressed was misaligned with JAG Corps preferences. 

Next, I heard from an expert last year who was invited, then disinvited, from speaking at a JAG school, while a second speaker to the same event was not disinvited to the same event. Both had sterling qualifications. The difference was that the first had spoken out against the lawfulness of boat strikes and Venezuela and Iran invasions. The second had publicly spoken out in favor of those operations. The JAG school gave no reasons for the selective disinvite, but the circumstances indicate that it was based on viewpoints.  

Finally, a few years ago, a civil society organization I am president of, the National Institute of Military Justice, was invited, then disinvited, from an academic event at a service JAG school. Again, no reason was given for the disinvitation except that higher-ups had ordered it, leaving us to conclude that it was based on our viewpoints on certain topics that are not in lockstep with those of JAG leadership. 

Is this a First Amendment issue? Federal courts interpreting the Free Speech Clause ordinarily apply the very high standard of strict scrutiny when the government discriminates based on the content of speech or the viewpoint of the speaker. In the examples above, the circumstantial evidence seems strong that the government was discriminating based on the viewpoints of the speakers. 

However, an exception to the high scrutiny given to content-based restrictions comes from the government speech doctrine. If the government is merely expressing its own views (government speech), then there is no restriction on speech at all, so strict scrutiny is avoided. Courts could find that the government speech doctrine applies to service JAG schools' selections of which speakers are heard and which topics their government students can write about. And because the JAG schools are military schools, courts could also draw from precedents such as Parker v. Levy that are more deferential to speech restrictions in military contexts.

While some viewpoint plasticity can be expected in the JAG schools from adminisration to administration as priorities change, have the JAG schools now gone too far? 

There could be an issue with accrediting bodies. The American Bar Association has standards requiring its member institutions to adhere to standards of academic freedom, with the most pronounced exceptions available only for religious institutions. At least one service JAG school, the Army's in Charlottesville, Virginia, is ABA-accredited. 

Another argument for JAG schools to embrace academic freedom is that it is in the self-interest of JAGs and the commanders who attend JAG courses to be exposed to robust debate over current national security issues of the day, and not just conform instruction to the political preferences of the current administration. When senior lawyers and officials in the George W. Bush administration unlawfully authorized and condoned detainee torture, JAGs were among those who courageously resisted. Had the service JAG schools not been able to openly debate these issues as they were occurring, this principled resistance may have been less likely to surface. 

A policy of academic freedom would mean that on several of the most pressing issues the U.S. military faces today--the use of National Guard forces in U.S. cities, Article 2(4) of the UN Charter and the crime of aggression, the weight and meaning that should be afforded to Office of Legal Counsel opinions--JAG schools could deepen their students' appreciation of the issues by seeing them fully, not just receiving one side's gloss. To limit speakers and paper-writers to only expressing only pro-administration viewpoints may ultimately leave JAGs less prepared to perform their duties. 

Price-gouging in Egypt

Under the category of "now I've heard everything," Egypt is considering giving military courts jurisdiction over civilian price-gouging. Of course.

Excerpt:

Egypt President Abdel Fattah al-Sisi said on Friday he has instructed officials to study the possibility of referring those who manipulate commodity prices to military courts, describing the current economic climate as a “state of near-emergency.” 

Speaking during an Iftar event organised by the Egyptian Military Academy, Sisi warned against the exploitation of global and regional circumstances to raise prices or manipulate the needs of the public. “Rest assured that, by the grace of God, we are fine,” the president said, while urging citizens to continue exercising responsibility and understanding based on study and facts.

An afterword about the Fat Leonard case

Rear Admiral Bruce Loveless, USN (Ret) (and now Ph.D.), has written this gripping account of his experience as one of the erstwhile defendants in the ultimately cratered "Fat Leonard" case. This is essential reading from a perspective one rarely sees.

"It Takes Two to Tango"

Who knew?

But that's in the title of a recent University of Amsterdam doctoral dissertation by Bas van Hoek. The full title is It Takes Two to Tango: A Legal Analysis of the Dual Oversight Regime Governing the Use of Force by the Netherlands Armed Forces. You can find it online here. The author offers five recommendations:

The assessment of the legal oversight system against the international legal framework shows that parts of the system are inadequately designed, meaning the system’s effectiveness cannot be sufficiently guaranteed. To improve the effectiveness of the legal oversight system with respect to the use of force by the Netherlands armed forces so that it conforms more adequately to the rule of law, considering the obligations and standards set by international law, the following recommendations can be put forth.

• Develop a vision about accountability, in the meaning of legal oversight, in military operations and link it to the concept of command and control. Communicate this vision in education and training, particularly to officers and non-commissioned officers, and set it down in writing. The notion of accountability deserves at least a reintroduction in military doctrine with an explanation what is meant by this.
• Consider revising the policy within the MOD and the PPS of investigating every incident involving civilian casualties. Develop a policy that clarifies the interplay between LOAC and HRL as regards the substantive norms on the use of force and its impact on the obligation to investigate the use of force. This policy should also address how this affects the use of both the military accountability mechanism and the law enforcement mechanism.
• Consider developing a basis in law for the fact-finding investigation conducted by the RMC under the authority of the PPS. Doing so involves establishing rules on the purpose Chapter 7: General conclusions 171 of the investigation, the use of coercive powers, the position of military personnel under investigation, the position of victims or next-of-kin, and the relationship with disciplinary and criminal investigations.
• Examine whether the concept of ‘just culture’ can be applied to the military accountability regime.
• Develop a protocol between the MOD and the PPS on coordination and cooperation in investigations into the use of force.

Divergent data in India

What gives withv the caseload data for India's Armed Forces Tribunal. Is the backlog the nearly 38,000 cases reported by the court or the 6904 cases reported by the government in Parliament? The Wire has the story here. Excerpt:

Commonwealth Human Rights Initiative’s  (CHRI) director and RTI activist Venkatesh Nayak found in responses to his queries to the AFT that if total pending cases across all benches and over two decades were added up, the number reaches 37,864. This figure is not just substantially higher than what the Union government declared but also higher than the AFT’s own declaration just a few months earlier, in another set of RTI responses to Nayak.

The mismatch between the figures of the Union government and the AFT came to light in December 2025, when the tribunal’s Central Public Information Officer, in RTI responses to Nayak, said the pendency was 27,962 cases as of September, 2025. The Wire had first reported the inconsistencies in AFT’s pendency figures, including the mismatch with the figures provided in the government’s reply in parliament. In fact, the report showed that parliament had recorded 18,826 pending cases in February 2021 and that this figure steadily rose after this date.

End of a 13-year ordeal

María Serrano, a member of Spain's Civil Guard has been acquitted in what is now the final phase of a 13-year legal whistleblowing ordeal. The decision comes when a senior officer pursued charges against her as a private party after the prosecution decided not to press the case. Details in this report  Excerpt:

The final ruling thus brings to a close a long process that has affected both her professional career and her personal life. During these years, Serrano reported suffering reprisals, including disciplinary proceedings, transfers, and loss of her specialization within the Seprona (Nature Protection Service). She even lost the housing assigned to her at the Montequinto barracks and endured extended periods of medical leave.