In the Reading Pile

Justice Logan, Commonwealth Military Justice Systems - An Australian Perspective. Federal Court of Australia, 10 September 2024 (A Paper delivered at the Commonwealth Magistrates' and Judges' Association Conference, Kigali, Rwanda).

The Transformation Project is proceeding according to an agenda charted out by Commonwealth Law Ministers in November 2022. Since then, as a sequel to a meeting of experts at the Stellenbosch Institute for Advanced Study in November 2023, an initial draft of the Commonwealth Military Justice Principles (the Stellenbosch Draft) has been produced.  

See Transformative military justice principles envisioned by experts from across the Commonwealth. The Commonwealth, 4 December 2023.

The Commonwealth Military Justice Transformation Project was conceived in 2021. His Honour Judge Alan Large, Judge Advocate General for the United Kingdom, Commonwealth Military Justice Transformation: Project.

Link to Findlay v. U.K. and Grieves v. U.K. in the ECHR.

The militarization of Mexico?

Article 21 of the Mexican Constitution provides in relevant part that: Public safety institutions, including the National Guard, will be of civilian character, disciplined and professional ("Las instituciones de seguridad pública, incluyendo la Guardia Nacional, serán de carácter civil, disciplinado y profesional.").

In Mexico, the Federal Police was abolished in 2019, because it was considered very corrupt. In its place the National Guard was created, under civilian supervision, although it was decreed that the National Guard would participate in military tasks for 5 years.  The opposition parties voted for it on the condition that it remain under civilian rule.  It should be noted that 80% of the 130,000 members of the National Guard come from the Army and the Navy.

In 2022, the President presented an initiative to move the National Guard to the control of the Mexican Army.   President Lopez Obrador of the Morena party, as well as the PT and PVEM, attempted three times to remove the National Guard from its civilian head, the Secretariat of Civilian Security and Protection (SSPC) to the Secretariat of National Defense (Sedena), the administrative arm of the Army, Navy and Air Force.  The opposition parties (PAN, PRI and MC) have claimed that this constitutes the "militarization of the country."  Morena's proposal would change the Constitution to say that the national Guard "is an armed force with the essential function of assisting public safety, permanently, of military origin and formation."  In September 2022, this constitutional reform proposal was approved but it was never completed because the Mexican Supreme Court declared it unconstitutional in April 2023.

A few days before the end of President Lopez Obrador's six-year term, the proposal to remove the National Guard from its civilian control to military control was approved on September 24, 2024, after a marthon 8 hour plus session.  Given the high levels of violence with the drug cartels in Mexico, President Lopez Obrador promised in 2018, to send the military back to their barracks, but he discovered that he needed the military to deal with the continuing violence.  The police were outgunned and infiltrated by the drug cartels and the new National Guard was comprised mainly of former members of the military.  The President maintained that the National Guard was worthy of confidence and not corrupt, but human rights groups argue that placing them under the command of the Armed Forces can increase human rights abuses, such as arbitrary detention, torture, forced disappearances and extrajudicial executions.

The Inter-American Court of Human Rights, in a 2018 decision that was taken into consideration by the Mexican Supreme Court (Alvarado Espinoza et al. v. Mexico, Judgment November 28, 2018) stated that "although the States Parties to the Convention could deploy the Armed Forces to perform tasks over and above thosse inherently related to armed conflicts, this use of the military should be limited insofar as possible and respond to conditions of strict exceptionality to address situations of criminality or internal violence, because the military forces are trained to defeat and enemy and not protect and control civilians, which is the specific training provided to police forces."  One can only assume that this latest reform will be brought to the Mexican Supreme Court again.

Standards of conduct and accountability in military operations -- ISMLLW Conference, Dec. 10-12, 2024, Abu Dhabi

This just in from the International Society for Military Law and the Law of War:

It is with great pleasure that we announce our international Conference hosted at ERTH Hotel in Abu Dhabi (United Arab Emirates) from 10 to 13 December 2024 (arrivals on 9 December 2024). The central theme of this Conference is:

Standards of Conduct and Accountability in Military Activities, the Role of Military Law and International Humanitarian Law, and the Importance of Preventing Armed Conflicts

We gratefully acknowledge the support and great hospitality of the Ministry of Defence of the United Arab Emirates in organizing this Conference. 

Together with the host country, will offer a highly interesting and diverse programme in Arabic and English (with simultaneous translation from Arabic to English and French, and from English to Arabic and French), featuring internationally renowned experts. Herewith you will find the outline of the Conference programme [available here], as well as the necessary Conference application form [available here]. The detailed Conference programme will be made available on our website in its most current version. It will also be sent to registered participants.

We advise you to take due notice of the reduced participation fee for members. The deadline for sending in completed and signed application forms is 4 November 2024. However, please note that places are limited and that we may have to close the registration process earlier. Once we have received and accepted the completed Conference application form in consultation with the host country, a confirmation of registration will be sent by e-mail. This confirmation becomes final upon payment of the applicable registration form.

Registered participants are recommended to book their accommodation at ERTH Hotel, which offers discounted rates for bookings until 1 November 2024. For instance, a standard room will cost 750 AED (taxes and buffet breakfast included). After 1 November 2024 availability of rooms at ERTH Hotel can no longer be guaranteed. Registered participants will receive the necessary form to book the room of their choice at ERTH Hotel.

Please note that travel to and from the United Arab Emirates as well as accommodation in Abu Dhabi are an individual responsibility. Visa requirements may apply. We strongly advise you to verify these timely. In light of transportation services offered by the host country, Conference participants are strongly advised to arrive at and fly from Zayed International Airport (AUH), Abu Dhabi. Registered participants will be requested to inform the host Country via the Society of their travel details with a view to organising transportation from and to the airport.

We will be highly pleased to welcome participants from your country or organisation at ERTH Hotel in the fascinating city of Abu Dhabi, and we are looking forward to a vibrant and international exchange of ideas on several of today’s challenging legal issues.

On the shelf

United States Military Justice in the Civil War: Court-Martial Practices and Administration by R. Gregory Lande.

Amazon Abstract:

Despite its relative invisibility to the public, the administration of military justice during the Civil War played a vital role in maintaining the discipline necessary for Union military success. While some scholars have criticized the Union military courts as arbitrary and excessively harsh, others have defended it as a necessary means of maintaining order in the face of unprecedented challenges faced by the Union. Drawing on extensive primary research, this history presents a compelling narrative based on a statistical analysis of 5,000 Union military trials, court records, historical legal publications, and insights from contemporary historians. This work analyzes the relationship between alcohol misuse and misconduct, covers the differing approaches to sexual misconduct across the services, and exposes the uneven and sometimes unfair application of military justice. Offering a balanced perspective on the struggle between maintaining discipline and protecting the legal rights of service members, this history is the first of its kind.

Other offerings include: Stephen C. Neff, Justice in Blue and Grey: A Legal History of the Civil War. Harvard Univ. Press, 2010, and broader in scope, Chris Bray, Court-Martial: How Military Justice has Shaped America from the Revolution to 9/11 and Beyond. W. W. Norton, 2016.

Desertion in Russia

The Heavy Toll of Desertion from the Russian Army introduces The Deserter, a powerful long-form piece by Sarah A. Topol in The New York Times Magazine. Excerpt from The Heavy Toll:

It’s impossible to know the real statistics of desertion. Mediazona, an independent Russian investigative outlet in exile, says there have been almost 7,400 AWOL cases in military courts since the start of the mobilization, but experts agree that’s only a small fraction of the number who have tried to escape. This is while the Russian authorities have made it more and more difficult to avoid service.

Last year, the authorities also raised the maximum age of conscription to 30 from 27, which will increase the number in the pool to at least 700,000 by 2025. In April, Mediazona wrote that the rise in the number of deserters in 2024 was “unprecedented.” But soldiers most frequently receive suspended sentences so they can return to base, apologize and be sent straight back to the front line.

The actual number of deserters is most likely much higher because few commanding officers want to officially declare a subordinate AWOL; they don’t want to get knocked by superiors for losing track of a man. So everyone tries to solve the situation on their own to avoid officially entering a soldier’s name into the system.