The Chief of the Defence Staff's ongoing disregard for the rule of law

It has now been two weeks since the Deputy Chief Military Judge, Lieutenant-Colonel L-V. d'Auteuil issued his judgments in R v Edwards, 2020 CM 3006 and R v Crépeau (as yet unreported).

These judgments focused principally on General Vance's refusal to rescind a problematic order, which places military judges under the jurisdiction of the Deputy Vice Chief of the Defence Staff.  Military judges have consistently held that this undermines their independence.  This blog post expands on many of the issues.

The Chief of the Defence Staff (CDS) has still not rescinded the order.

Director of Military Prosecutions (DMP), on behalf of the Minister of National Defence, has issued Notices of Appeal for both cases, and Defence Counsel Services have replied with Notices of Appearance. It is no surprise that the DMP has sought to appeal the judgments. However, we can also anticipate that applications for stays of prosecutions will be brought in every single court martial until the CDS rescinds his order. It would not be unreasonable to expect these stays to be granted in most, if not all, of those cases. This stubborn insistence on the part of the CDS has the potential to make the 'interregnum' caused by Beaudry v R, 2018 CMAC 4 look like a minor blip.

Stay tuned ...

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Score at the end of seven innings of play . . .

Remember Kulbhushan Jadhav? He's the Indian national convicted of spying by a Pakistani court-martial, but denied consular access in violation of the Vienna Convention. This article by Bharatendu Agarwal in The Wire brings the story up to date, including some funny business about an ordinance that the Pakistani government slow-rolled in bringing before the legislature,* and questions about whether an Indian lawyer will be permitted to represent Jadhav in the Pakistani courts, or, failing that, whether any Pakistani attorney will undertake the representation given the personal risks involved in doing so.

* The only place the Editor was able to find The International Court of Justice (Review and Re-consideration) Ordinance, 2020, Pak Gaz. (Extra), No. VI of 2020, May 29, 2020, pt. I, at 259, was this tweet.

The challenges of deploying the army in civilian COVID-19 policing operations – a South African perspective

Now that several months have passed since the inception of Operation NOTLELA, and the ramifications of the High Court judgment in Khosa et al. v. Minister of Defense have taken hold, Angelo Dube, Associate Professor of International Law at the University of South Africa at Pretoria, provides an updated overview of the situation in the blog platform Rights!

Speaking truth to power

West Point faculty member Lt. Col. Dan Maurer, writing in his personal capacity, has penned another thought-provoking essay for Just Security: "Breaking Ranks in a Civil-Military Crisis: Strategic Communication to Register Dissent." Excerpt:

The measure of a successful, principle-based communication campaign will be the orderly transfer of executive power from one civilian to another with the military’s role being safely irrelevant to the equation. It should go without saying that the military is never the right or best tool to solve a domestic political predicament—even the grave ones. But, now that using this tool is part of the public conversation, it bears repeating that the military’s only legitimate role is one of fidelity to the Constitution without picking up arms to solve a political problem.