The limits of name-suppression

Is the fact that an accused served in Iraq sufficient, without more, to warrant a name-suppression order? Britain's Ministry of Defence and, in the end, a Judge Advocate, say it isn't. Details here.

Transforming military justice

Someone named Julianus has posted this thought-provoking essay on CAAFlog. Global Military Justice Reform does not permit pseudonyms, while CAAFlog at times has done so. After a heated discussion in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the consensus was that (applying or disregarding choice of law rules, we're not sure which) linking to this CAAFlog post was, well, okay. Anyway, the post is important and worth busy readers' time.

Unsolved murder spurs possible reform

Congresswoman Norma Torres introduced legislation to establish uniform procedures for the handling of cold cases by military investigators. The text of the bill can be found here. 

Representative Torres named the legislation after Enrique Roman-Martinez, a member of the 82d Airborne Division who was decapitated during Memorial Day Weekend in 2020. The Army Criminal Investigative Division failed to close the homicide investigation. Specialist Roman-Martinez had been camping in the Outer Banks of North Carolina with 7 other Soldiers at the time of his homicide.

Military.com has done a series of articles on the incident, tracking the disciplinary action some of those Soldiers have faced for other misconduct, yet the cause of SPC Roman-Martinez' murder remains unsolved. 

The Fortin CANFORGEN

 On Thursday, 17 November 2022, the Vice Chief of the Defence Staff (VCDS) issued CANFORGEN 164/22 – which can more accurately be characterized as the ‘Fortin CANFORGEN’.  Let’s face it: the 3,000 kg rhino is the room is that the CANFORGEN was clearly issued because Major-General (MGen) Dany Fortin wore his Canadian Forces (CF) uniform (specifically, his Distinctive Environmental Uniform (DEU) 3) to his trial before a civil court of criminal jurisdiction.  He did so to answer allegations arising within his service and which were investigated by Military Police.  Certain people complained vociferously.

This development was reported broadly in the Canadian news media, including by Canadian Press reporter, Lee Berthiaume: “Military bans uniforms from civilian trials following Fortin criticism”, Lee Berthiaume, Canadian Press, Globe and Mail online.

As I have discussed previously, it is open to the Chief of the Defence Staff (CDS), or one of the CDS’ subordinates, to issue direction regarding whether a CF member may wear CF uniform in certain circumstances.  Indeed, there were long-standing gaps in the CF Dress Instructions and other policy direction regarding the wearing of CF uniforms.

However, there are pertinent issues that should be addressed, including: (1) whether a CANFORGEN is the appropriate policy instrument; and, (2) whether there are any problematic provisos in the CANFORGEN that the VCDS purports to use as a policy instrument.

I expand upon these issues in the Blog post hyperlinked below.  Specifically, I explain (for what seems like the hundredth time) that CANFORGEN are not proper policy instruments for the governance of the Canadian Forces.  I also highlight some problematic provisions in the CANFORGEN, within the context of ongoing problematic policy initiatives brought by the Minister of National Defence, the Honourable Anita Anand.

“The Fortin CANFORGEN”, Rory Fowler, online: Law Office of Rory G Fowler

[http://roryfowlerlaw.com/the-fortin-canforgen/]

Common crimes by members of the military appropriately decided by a military court when the case deals with military interests

 A norm that gives military jurisdiction competence over common crimes committed by members of the military in the exercise of their functions does not produce results contrary to the Constitution. Two former members of the Carabineros (Chilean police under the Ministry of Interior but still considered part of the Armed Forces) alleged that their human rights to equal protection before the law, to an independent and impartial court and to due process of law were violated by being tried for falsification of documents in a military court rather than in a civilian court.

The Chilean Constitutional Court held that they were appropriately tried in a military court. It pointed out that there were two laws that came into play dealing with falsification of documents: Article 367 No. 5 of the Military Code of Justice and Article 193 of the Penal Code. The former can only be committed by a member of the military in abuse of his functions with regard to documents referring to service in the military institutions. The Inter-American Court of Human Rights would have agreed with this decision.