The National Guard

See Darcy Spears, Guarding the Guardsmen: Discipline and disorder in the Nevada National Guard. KTNV Las Vegas, 6 October 2023.

GMJR and NIMJ have followed military justice within the states’ National Guard organizations for some years.

Each state has a National Guard organization formed according to state and federal law. The commander-in-chief is the governor of the state. The State Guard is formed, organized, administered, and tasked by the state legislature with The Adjutant General (TAG) as its senior uniformed leader.

A state National Guard is a military reserve force composed of National Guard military members or units of each state and the territories of Guam, the Virgin Islands, Puerto Rico, and the District of Columbia, for a total of 54 separate organizations. It is officially created under Congress's Article 1 Section 8 ability to "raise and support armies."

The National Guard has a dual mission:To provide a trained and equipped force to supplement the regular Army and Air Force in times of national emergency.
To assist state and local governments in responding to natural disasters, civil unrest, and other emergencies.

National Guard members are part-time soldiers and airmen who maintain their civilian jobs or attend college while also participating in military training and drills. When activated for federal missions, National Guard members become part of the reserve components of the United States Army and the United States Air Force.

The National Guard is an important part of the nation's defense and security and plays a vital role in responding to emergencies at home and abroad.

Here are some examples of state National Guard missions:

• Responding to natural disasters, such as hurricanes, floods, and wildfires
• Assisting with civil unrest and emergencies
• Supporting law enforcement and public safety
• Providing security for special events
• Conducting search and rescue operations
• Deploying overseas to support national defense missions

There is no consistency in their disciplinary procedures. Some states have a separate system that adopts the federal UCMJ by law, some states prosecute military offenses in their local civilian court, and others have a blended system. Not all the states have adopted the ABA Model State Code of Military Justice.

NIMJ has a page (here) of the current military justice “regulations” by state.

Discipline and accountability issues facing the NG are not new.

Dennis Wagner, National Guard scandals in these 13 states raise questions about culture and accountability. USA Today, 25 November 2021.

Joel Grover, Chris Henao, Phil Drechsler, Tony Kovaleski, Liz Wagner and Felipe Escamilla, Federal Investigation to Probe Claims of Alleged Racism, Sexual Harassment in California National Guard. NBC4 News, 16 November 2012.

Worth the Read

Abdul Majeed Ibrhim & Md. Zahidul Islam, Soldier's Constitutional Rights and Military Justice: Comparison Between the Republic of Maldives, Malaysia, and Other Jurisdictions. 9 J. Asian & Afr. Soc. Sci. and Humanities 1 (2023).

Is the independence of India's Armed Forces Tribunal compromised?

Consider this October 4, 2023 letter from the Armed Forces Tribunal Chandigarh Bench Bar Association to the Chief Justice of India. Aiman J. Chishti has this report on LiveLaw. He writes that the Bar Association is "alleging that Defence Minister has openly admitted interference of the Ministry in the transfer of [AFT] Judicial Member Justice Dharam Chand Chaudhary, just before he could hear the case of contempt against an officer of Defence Accounts Department."

Spanish judiciary stymied by failure to reach political accord

The General Council of the Judiciary (Consejo General del Poder Judicial-CGPJ) in Spain is a constitutional body made up of judges and other jurists that exercises judicial functions with the aim of guaranteeing the independence of judges in the exercise of their judicial functions before the public.  It deals with matters such as the nomination, promotion and transfer of judges; the inspection of courts and tribunals and disciplinary matters involving  the judiciary. Giving this competence to the CGPJ avoids the possibility that another State power, in particular the Executive, could influence the independence of the judiciary, directly or indirectly.

The CGPJ is supposed to be renewed every five years. Its twenty members serve a five-year term.  The five-year delay in reforming the CGPJ, which was bogged down in political party conflict, and the legal prohibition, endorsed by the Constitutional Tribunal on October 2, 2023, that the CGPJ, once its mandate has expired, can no longer make discretionary judicial nominations, has resulted in an unprecedented institutional crisis.  The five chambers of the Spanish Supreme Court are the most affected since all of its judges are discretionary nominations; they currently have 56 judges instead of the 79 required, and there is little expectation that the 23 vacancies will be filled any time soon. Three vacancies on the Military Chamber of the Supreme Court have not been filled since December because the interim president passed into the reserves and has not been replaced. Recourse has been made to a system of substitutions, but these are only a provisional solution.

Once the Constitutional Tribunal determined that the law which prohibits the discretionary nominations is in accord with the Spanish Constitution, various Supreme Court judges declared that it is necessary to reform the CGPJ immediately. In addition to the 23 vacancies on the Supreme Court there are an additional 63 vacancies on the other Spanish high courts. The Supreme Court has warned that not filling the vacancies will result in 1,000 fewer judgments this year.

The European Union has warned that Spain is failing to comply with the recommendations of the reports that monitor the rule of law in countries in the EU and insists that reform of the CGPJ should be carried out immediately.  If there is no political agreement, however, the CGPJ will remain unable to make nominations and the vacancies will continue to accumulate.

Men-only draft upheld in South Korea

The Constitutional Court of Korea has again upheld the country's men-only conscription system. According to this account:

The Constitutional Court stated that the issue of determining the scope of military duty among citizens bearing the obligation of national defense should be flexibly addressed considering the rapidly changing domestic and international security situations and financial capabilities of the country. They emphasized the need to respect the broad legislative discretion of the National Assembly in shaping the specific obligations of national defense through legislation.

Furthermore, the Constitutional Court pointed out factors such as the inherent physical differences between men and women, the potential need for supplementary and wartime labor, and the limited number of countries that impose military duty on women in a comparative context. They suggested that in the long term, discussions on introducing a gender-neutral conscription system or transitioning to a volunteer system should be seriously considered through social consensus, taking into account factors like changes in birth rates and the supply of military manpower. However, at the present time, it is difficult to conclude that the legislative judgment of maintaining the existing conscription system is significantly arbitrary.

The decision is not yet on the court's website.