Articles Posted in Uncategorized

Several years ago, Beth Van Schaack highlighted a gap in U.S. law regarding atrocity crimes. Although well established in international criminal law as well as other areas of U.S. law, Title 18 of the U.S. Code lacks command responsibility as a mode of criminal responsibility. Following the issuance of pardons by President Donald Trump, Gabor Rona drew renewed attention to command responsibility as a mode of liability.

Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition. Just Security, 4 December 2020.

This duty to punish has been an element of command responsibility since at least the Hundred Years’ War. In 1439, King Charles VII of France issued an ordinance identifying the failure of a commander to discipline a subordinate as a basis for the punishment of the commander.

04122020–UP PERISCOPE

That means the change will likely come to the MRE effective 18 months from now absent action by the Prez.

See MRE 1102.

• The defense will no longer be required to make a demand for notice—prosecution must disclose regardless of a request!

Courtesy of Global Military Justice Reform blog.

The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 is now out and can be found here. Readers will want to look in particular at § 542, which imposes a 12-years-of-law-practice qualification for judges of the service Courts of Criminal Appeals and alters the current provision on factual sufficiency review by those courts. It’s found at pp. 544-48. Here is the conferees’ explanation:

Qualifications of judges and standard of review for Courts of Criminal Appeals (sec. 542)

Click to access CRPT-116hrpt617.pdf

https://www.mcclatchydc.com/article247506295.html?utm_source=Sailthru&utm_medium=email&utm_campaign=EBB%2012.01.20&utm_term=Editorial%20-%20Early%20Bird%20Brief

Should a federal law that protects National Guard members and reservists from being fired from their private sector jobs while they are deployed also apply to state government jobs? Last week, the U.S. Supreme Court hinted it might weigh in on the issue.

The U.S. Supreme Court last Tuesday requested additional information from the Texas attorney general’s office on why the state should not be held accountable to the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits employers from retaliating against or firing National Guard members and reservists who are pulled from their full-time jobs to go on active duty.

Certain retirees are not subject to court-martial jurisdiction, so says Judge Richard J. Leon of the United States District Court for the District of Columbia in Larrabee v. Braithwaite. We should anticipate the circuit court and the Supreme Court will get to tell us their view.

After briefing and oral argument, the judge entered his judgement (Memorandum Opinion) on the pleadings.

The court begins with the proposition that,

Breaker Morant—who has not heard of him, especially for those attending NJS after the 1980’s film Breaker Morant was released. The Sydney Morning Herald (Aust.) has a book review, Peter Fitzsimmons, Breaker Morant. Hachette (2020).

Hero, scapegoat, or villain—you decide.

The subject of Peter FitzSimons’ latest work is Harry ‘‘Breaker’’ Morant, an Englishman who holds the dubious honour of being Australia’s most famous war criminal. A lieutenant in the irregular Bushveldt Carbineers, Morant was convicted in 1902 by a British Army court martial (along with Australians Peter Handcock and George Witton) for his role in the murders of civilians and surrendered combatants during the Second Anglo-Boer War. Witton received a life sentence, later commuted; Morant and Handcock were executed by firing squad.

My weekly “review” is here https://www.caaflog.org/home/up-periscope4418984

Worth the Read, Doug Stout, Veterans column: Newark’s Scott found guilty of mutiny. Newark Advocate.

United States v. Scott is due to be argued before the Court of Appeals for the Armed Forces pm 17 November 2020. The issue is whether Appellant’s trial defense counsel were ineffective by failing to introduce substantial positive character evidence and combat service on sentencing.

In United States v. Demerse, No. 900529R, 1992 CMR LEXIS 511 (N.M.C.M.R. Apr. 20, 1992), the Navy-Marine Corps Court of Military Review summarily affirmed the findings and sentence. The court did not address Issue IV which was,