Good luck with those proposed changes to the Manual for Courts-Martial

According to the October 19, 2022 Federal Register notice, comments on the recent proposed changes to the Manual for Courts-Martial must be received no later than December 19, 2022. The Joint Service Committee on Military Justice (JSC) has advised that questions from members of the public should be submitted no later than two weeks before the deadline for comments. 

Global Military Justice Reform had proposed to conduct a Town Hall to discuss the changes, but the JSC has declined to participate. The JSC also advises that it does not have a specific summary of the voluminous changes. 

There will be a public meeting at the Court of Appeals for the Armed Forces in Washington, DC on November 16, 2022, at which it would be nice if someone from the JSC would summarize the proposed changes orally and respond to questions, although the Federal Register notice says the purpose is only to receive comments.

If you have any questions or comments on the proposed changes, please post them here using the Comment function and feel free to respond to others' comments or questions using the Reply function. That way, readers will be able to share thoughts and questions for the benefit of all concerned. Of course, without a summary from the JSC, it may be like looking for a needle in a haystack to find aspects of the proposed changes that merit comment.

Flashback to Canadian military justice

On 26 October 2022, the Globe and Mail ran a front-page story about former members of various armed forces who joined the 'International Legion for the Defence of Ukraine'.  This formation was formed relatively soon after the Russian invasion of Ukraine (or, perhaps more accurately, the most recent Russian invasion of Ukraine) in February of this year.  Some commentators have likened it to the 'International Brigades' of the Spanish Civil War.  Canada's contribution was the MacKenzie-Papineau Battalion, named after the leaders of the 1837 'rebellions' in Upper and Lower Canada, respectively.  However, most participants in the International Brigades generally identified as socialists or even communists, who fought with the Republican forces against the fascists in Generalissimo Francisco Franco's Nationalist regime.

As Mark MacKinnon of the Globe and Mail wrote in his report, "Inside the motley collection of foreign adventure seekers, criminals and con artists who fight for Ukraine" (the online version is entitled "Ukraine’s Foreign Legion offers a shot at redemption for fighters from around the globe"), it is clear that many of the 'international' fighters who joined the International Legion do not have communist or socialist beliefs.

Since the article was written by a Canadian journalist for a Canadian newspaper, it is not surprising that a former, and, arguably, infamous, former Canadian soldier was featured in the lead paragraphs.  Mr. MacKinnon began his in-depth report by featuring Robert Semrau, a former officer of the Royal Canadian Regiment (RCR) who was charged and tried by court martial over a decade ago for his actions in Afghanistan in late 2008.  [And, by way of full disclosure, I was on that tour, in the same organization, but was not directly involved in the Code of Service Discipline process.]

The then-Captain Semrau was a Mentoring Team Leader with the Canadian Operational Mentoring and Liaison Team (OMLT) deployed to southern Afghanistan, and assigned to assist the 1st (Hero) Brigade of 205 Corps of the Afghan National Army (ANA).  While the OMLT was based principally in the province of Kandahar, it sometimes operated further afield.  And 14 years ago, in October 2008, the then-Captain Semrau was with his small mentoring team, accompanying the ANA company they were mentoring, in Helmand Province.

While I do not propose to delve into the details of the allegations here, at one point during the operation, it was alleged that Semrau shot a seriously wounded and unarmed belligerent - i.e., a belligerent who was hors de combat.  The matter was eventually reported to Canadian leadership by an Afghan 'interpreter', which precipitated an investigation by the Canadian Forces National investigation Service (CFNIS).  Semrau was eventually charged with multiple offences, including: second degree murder (contrary to s 235 of the Criminal Code); attempt to commit murder using a firearm (contrary to s 239 of the Criminal Code); negligent performance of a military duty (contrary to s 124 of the National Defence Act (NDA)); and, disgraceful conduct (contrary to s 93 of the NDA).  The charges under the Criminal Code were laid pursuant to para 130(1)(b) of the NDA, which permits offences under other acts of Parliament, when arising outside Canada, to be charged and prosecuted under the Code of Service Discipline.

NB: Semrau was not charged with a grave breach of the Geneva Conventions under Canada's Crimes Against Humanity and War Crimes Act, SC 2000, c 24.  So, while some news media at the time may have speculated on whether his actions constituted a war crime, none of the offences established under the Crimes Against Humanity and War Crimes Act were charged or prosecuted in this matter.

Semrau was tried by General Court Martial, and was found guilty of disgraceful conduct.  He was subsequently sentenced by the presiding military judge, Lieutenant-Colonel (LCol) Jean-Guy Perron (a former infantry officer himself): R v Semrau, 2010 CM 4010.  LCol Perron's sentencing judgment is an object example of clear, concise, and reasoned application of mitigating and aggravating factors in a politically sensitive matter that was the subject of significant scrutiny and speculation in the national news media.

Semrau was sentenced to Dismissal from Her Majesty's Service and reduction in rank to Second Lieutenant.  The sentence is noteworthy, as Mr. MacKinnon reported in his recent newspaper article that Semrau was "... dishonourably discharged from the Canadian military ...".  While that terminology is frequently used by news media, it is also incorrect, and is very likely the product of the influence of American movies and television.

The terms 'discharge' is not used to describe any release of a CF member under art 15.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), whether voluntary or involuntary.  Where a CF member is released under 'item' 3 (medical), item 4 (voluntary), or item 5 (service completed), the term used in the notation of the member's record of service is "Honourably Released".  If the CF member is released under item 2 (unsatisfactory service) the term used is "service terminated".  When a CF member is released under item 1 (Misconduct), as in the case of Semrau, the notation will be “Dismissed with Disgrace for Misconduct” or “Dismissed for Misconduct”, as applicable.  In Semrau's case, it was the latter.

For a greater explanation regarding 'release items', see: "A Word or Two on Release Items in the Canadian Forces", 18 January 2021.

Should this murder case be in a military court?

A Ugandan officer stands accused of the off-base murder of his wife, a civilian. Where should he be tried?

NPR asks: is it time for reform?

In the wake of the Bonhomme Richard arson acquittal, National Public Radio's All Things Considered has run this piece by Steve Walsh, asking whether it is time to reform the American military justice system. NIMJ president Rachel VanLandingham and Protect Our Defenders president Don Christensen vote Aye. She says: "I fully believe that the Navy needs to have its serious cases, its felony-level cases prosecuted by the Department of Justice and not by the Navy, just because of its inexperience." He says:" I know [NCIS] got the TV show, but should we be relying on them when we have the Federal Bureau of Investigation that can investigate these crimes or the local investigators can investigate these crimes?"

Argentina 1985

 The film "Argentina 1985", an Argentine film that opened in the U.S. at the end of September 2022 and is available for streaming on Amazon Prime tells the story of Julio Strassera, the Federal Prosecutor, and Moreno Ocampo, his assistant, in the civilian trial of the military juntas in Argentina.  Ricardo Darín, the famous Argentine actor, plays a very convincing Strassera, a man who did not seek this role in life but is also unwilling to not rise up to fulfill it to the best of his ability.

President Raúl Alfonsin appointed Strassera to prosecute the 9 members of the military juntas for crimes against humanity and to have them tried by a civilian appeals court.  The military defendants refused to accept the jurisdiction of the court that was imposed upon them and demanded to be tried by a military tribunal.  The film depicts Strassera's concern that the military will resort to a coup d'état to prevent the proceedings from taking place and there are multiple death threats against him and his family.

The legal team organized by Moreno Ocampo put together 709 cases to be presented to the Tribunal out of the approximately 9,000 that the military was responsible for during the 7 years of the "dirty war" and the testimony and evidence of the military's culpability for torture and forced disappearances was overwhelming.  It was nothing short of incredible that the civilian legal team was able to convince the Federal Appeals Court to send former members of the military dictatorship to prison.