Judicial action in military forces
This article is about the formal application of military law and justice. For the summary form of military justice, see
drumhead court-martial
.
A
court-martial
or
court martial
(plural
courts-martial
or
courts martial
, as "martial" is a
postpositive adjective
) is a military
court
or a trial conducted in such a court. A court-martial is empowered to determine the guilt of members of the
armed forces
subject to
military law
, and, if the defendant is found guilty, to decide upon punishment. In addition, courts-martial may be used to try
prisoners of war
for
war crimes
. The
Geneva Conventions
require that
POWs
who are on
trial
for war crimes be subject to the same procedures as would be the holding
military
's own forces. Finally, courts-martial can be convened for other purposes, such as dealing with violations of
martial law
, and can involve civilian defendants.
[1]
[2]
Most
navies
have a standard court-martial which convenes whenever a ship is lost; this does not presume that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship be made part of the official record. Most military forces maintain a judicial system that tries defendants for breaches of military discipline. Some countries like
France
have no courts-martial in times of peace and use civilian courts instead.
[3]
Hyphenation
[
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]
Court-martial is hyphenated in US usage, whether used as a noun or verb.
[4]
However, in British usage, a hyphen is used to distinguish between the noun, "court martial", and the verb, "to court-martial".
[5]
Composition
[
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]
Usually, a court-martial takes the form of a trial with a presiding judge, a prosecutor and a defense attorney (all trained lawyers as well as officers). The precise format varies from one country to another and may also depend on the severity of the accusation.
Jurisdiction
[
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Courts-martial have the authority to try a wide range of military offences, many of which closely resemble civilian crimes like fraud, theft or perjury. Others, like cowardice, desertion, and insubordination, are purely military crimes. Military offences are defined in the
Armed Forces Act 2006
for members of the British Military. Regulations for the
Canadian Forces
are found in the
Queen's Regulations and Orders
as well as the
National Defence Act
. For members of the
United States Armed Forces
offenses are covered under the
Uniform Code of Military Justice
(UCMJ). These offences, as well as their corresponding punishments and instructions on how to conduct a court-martial, are explained in detail based on each country and/or service.
By country
[
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]
Canada
[
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]
In Canada, there is a two-tier military trial system. Summary trials are presided over by superior officers, while more significant matters are heard by courts martial, which are presided over by independent military judges serving under the independent Office of the Chief Military Judge. Appeals are heard by the
Court Martial Appeal Court of Canada
.
Capital punishment in Canada
was abolished generally in 1976, and for military offences in 1998.
Harold Pringle
was the last Canadian soldier executed pursuant to a court martial, in 1945, having been convicted of murder.
[6]
China
[
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]
The Military Court of the Chinese People's Liberation Army the highest level military court (High Military Court, a special people's court executing the authority of the High People's Court) established by the People's Republic of China within the Chinese People's Liberation Army with jurisdiction over the nation's armed forces (including the
People's Liberation Army
and the
People's Armed Police
), organized as a unit directly under the Political and Legal Committee of the Central Military Commission, and operationally under The Supreme People's Court and the Political and Legal Committee of the Central Military Commission is under the dual leadership of the
Supreme People's Court
and the
Political and Legal Committee of the Central Military Commission
.
Finland
[
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In Finland, the military has jurisdiction over two types of crimes: those that can be committed only by military personnel and those normal crimes by military persons where both the defendant and the victim are military persons or organizations and the crime has been defined in law as falling under military jurisdiction. The former category includes military offences such as various types of
disobedience
and
absence without leave
, while the latter category includes civilian crimes such as murder, assault, theft, fraud and forgery. However,
war crimes
and
sexual crimes
are not under military jurisdiction.
[7]
: § 2
In crimes where the military has jurisdiction, the military conducts the investigation. In non-trivial cases, this is done by the investigative section of
Defence Command
or by civilian police, but trivial cases are investigated by the defendant's own unit. The civilian police has always the right to take the case from the military.
[8]
: §§28, 35, 39
If the case does not warrant a punishment greater than a fine or a disciplinary punishment, the punishment is given summarily by the company, battalion or brigade commander, depending on severity of the crime. If the brigade commander feels that the crime warrants a punishment more severe than he can give, he refers the case to the local district attorney who commences prosecution.
[8]
: §§46?48
The crimes with military jurisdiction are handled by the civilian district court which has a special composition. In military cases, the court consists of a civilian legally trained judge and two military members: an officer and a warrant officer, an NCO or a private soldier. The verdict and the sentence are decided by a majority of votes. However, the court cannot give a more severe sentence than the learned member supports. The appeals can be made as in civilian trials. If a court of appeals handles a military matter, it will have an officer member with at least a major's rank. The
Supreme Court of Finland
has, in military cases, two general officers as members.
[7]
: Ch. 3
Courts-martial proper are instituted only during a war, by decree of the government. Such courts-martial have jurisdiction over all crimes committed by military persons. In addition, they may handle criminal cases against civilians in areas where ordinary courts have ceased operation, if the matter is urgent. Such courts-martial have a learned judge as a president and two military members: an officer and an NCO, warrant officer or a private soldier. The verdicts of a war-time court-martial can be appealed to a court of appeals.
[7]
: Ch. 6
Germany
[
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]
The
Basic Law (Grundgesetz)
(adopted after the
Second World War
in 1949) establishes in Art. 96 para. 2
[9]
that courts-martial can be established by federal law. Such courts-martial would take action in a
State of Defense (Verteidigungsfall)
or against soldiers abroad or at sea.
Greece
[
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]
The existence of military courts, naval courts and air courts is provided for in the Constitution of Greece, which in article 96 paragraph 4 states that:
"Special laws define: a. Those related to military courts, naval courts and air courts, to the jurisdiction of which private individuals cannot be subject".
The first chapter of the procedural part of the Military Penal Code (MPC) regulates the matters related to the courts and judicial persons that make up the Military Justice. Specifically in article 167 of the MPC, it is defined that criminal justice in the Army is awarded by the military courts (military courts, air courts, naval courts, review court) and the
Supreme Court
.
India
[
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]
There are four kinds of courts-martial in India. These are the General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). According to the Army Act, army courts can try personnel for all kinds of offenses, except for murder and rape of a civilian, which are primarily tried by a civilian court of law.
The
President of India
can use his judicial power under Article 72 of the
constitution
to pardon, reprieve, respite or remission of punishment or sentence given by a court martial.
Ireland
[
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]
Court martials are provided for in the
Constitution of Ireland
, which states in Article 38.4.1 that:
"Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion."
There are three classes of courts-martial in the Irish Defence Forces:
[10]
- The Summary Court-Martial (SCM) is tried by a Military Judge sitting alone. Sentences are limited to six months imprisonment.
- The Limited Court-Martial (LCM) is tried by a Military Judge and a board of three members of the Defence Forces. Sentences are limited to two years imprisonment.
- The General Court-Martial (GCM) is tried by a Military Judge and a board of five members of the Defence Forces. The GCM has no sentencing limit. Officers of Lieutenant-Colonel rank and higher can only be tried by a GCM.
Israel
[
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]
Outside of the
Israeli settlements
, the
West Bank
remains under direct
Israeli
military rule
, and under the jurisdiction of
martial law
in the form of
military courts
. The
international community
maintains that Israel does not have
sovereignty
in the West Bank, and considers Israel's control of the area to be the longest
military occupation
in modern history.
[a]
The military court system for the
occupied territories
, modeled partially on the British military court system set up in 1937,
was established in 1967, and had been called the institutional centerpiece of the occupation, and within it West Bank Palestinians are treated as "foreign civilians".
The measures it applies, combining elements of colonial administration and
martial law
, cover not only incidents involving recourse to violence but many other activities, non-violent protests, political and cultural statements and the way Palestinians are allowed to move or associate with each other.
Some of the problematic facets of the system Palestinian prisoners are subject to are, according to sociology professor
Lisa Hajjar
; prolonged detention of suspects incommunicado, impeding a client's access to his lawyer, the routine use of coercion under interrogation to obtain confessions and the introduction of "secret evidence".
Indonesia
[
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]
In Indonesia, any criminal offense conducted by military personnel will be held in trial by military court. There are four levels of military jurisdiction:
[16]
- Military Court (
Pengadilan Militer
), composed of one major as presiding judge, two captains as judge, one captain as military prosecuting attorney, and one second lieutenant as clerk of court.
- High Military Court (
Pengadilan Militer Tinggi
), composed of one lieutenant colonel as presiding judge, two majors as judge, one major as military prosecuting attorney, and one captain as clerk of court.
- Supreme Military Court (
Pengadilan Militer Utama
), composed of one colonel as presiding judge, two lieutenant colonels as judge, one lieutenant colonel as military prosecuting attorney, and one major as clerk of court.
- Warzone Military Court (
Pengadilan Militer Pertempuran
), composed of one colonel as presiding judge, two lieutenant colonels as judge, one lieutenant colonel as military prosecuting attorney, and one major as clerk of court. This level of military court only applies during wartime.
The judges will receive
temporary rank
the same as the defendant if the rank of the defendant is higher than the judges.
Luxembourg
[
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]
In Luxembourg, there are three levels of military jurisdiction:
- The lowest is the
Council of War
which is composed of one lieutenant-colonel (or higher), one captain (or higher) and one civilian judge of a District Court.
- The
Military Court of Appeal
is composed of two high magistrates of a civilian Court of Appeal and one Major (or higher).
- At the top is the
Military High Court
which deals not only with military cases, but also with acts of high treason, sabotage, organized forms of terrorism and crimes against humanity. It is composed of two magistrates of a civilian Court of Appeal, one judge of a civilian District Court and one Lieutenant-Colonel (or higher) of the Army.
[17]
Netherlands
[
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]
In the
Netherlands
, members of the military are tried by a special military section of the civilian court in
Arnhem
. This section consists of a military member and two civilian judges. The decision whether or not to prosecute is primarily made by the (civilian)
attorney general
.
[18]
New Zealand
[
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Service members of the
New Zealand Defence Force
are tried under a court martial for offences pertaining to the most serious offences against the Armed Forces Discipline Act 1971. Offences such as mutiny, murder, sexual offences, serious assaults, drug offences, or offences where the maximum punishment exceeds a 7-year prison term will be heard by court martial. Below this 7-year threshold the accused is dealt with by their commanding officer in what is known as a summary trial.
During court martial the appointed judge is either a
New Zealand High Court
or
District Court
judge and they preside over the trial. Defendants are assigned legal counsel, and for the prosecution, a lawyer is assigned who generally comes from a military background. The judge advocate is usually made up of senior NZDF
officers
and
warrant officers
who hear the defence and prosecution evidence during court martial. Punishment on guilty findings of a defendant will see them face being charged with a punishment such as serious reprimand, loss of rank, dismissal from the NZDF, or being sent to military or civilian prison.
Poland
[
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In Poland, military courts are military garrison courts and military district courts.
[19]
They are criminal courts with jurisdiction over offences committed by soldiers in active military service, as well as certain offences committed by civilian military personnel and soldiers of the armed forces of foreign countries (Article 647 of the Code of Criminal Procedure
[20]
). Garrison courts rule in the first instance, appeals against their decisions and orders are heard by district courts, which also have first-instance jurisdiction in the most serious cases. The Criminal Chamber of
the Supreme Court
then acts as the second instance; in addition, cassation appeals against judgments rendered in the second instance are heard in the Criminal Chamber. The military courts are therefore subject to the adjudicatory supervision of the Supreme Court (which, by the way, follows from Article 183(1) of the
Constitution of the Republic of Poland
[21]
), and
the Minister of Justice
has superior organizational and administrative supervision.
Philippines
[
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In 2005, ex-AFP Major General Carlos Garcia (
PMA
Class of 1971, assigned comptroller of the
AFP
was court martialled for violating two articles of the Articles of War for the alleged Php 303 million Peso Money Laundering/Plunder and direct Bribery against him.
[22]
Singapore
[
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]
Under the
Singapore Armed Forces
Act,
[23]
any commissioned officer is allowed to represent servicemen when they are tried for military offences in the military courts. The cases are heard at the Court-Martial Centre at Kranji Camp II.
[24]
[25]
Some of the courts martial in Singapore include that of Capt. G. R. Wadsworth in 1946 due to use of insubordinate language
[26]
and, in the modern day, misbehaviour by conscripted servicemen.
[27]
Thailand
[
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]
The governing law in Thailand's military courts is the
Military Court Organisation Act 1955
(
Thai
:
??????????????????????????? ?.?. ????
). The act allows the
Judge Advocate General
of Thailand (
Thai
:
?????????????????
) to establish court regulations. In wartime or during the imposition of
martial law
, military courts may adopt special procedures.
United Kingdom
[
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The court martial is one of the
Military Courts of the United Kingdom
. The
Armed Forces Act 2006
establishes the court martial as a permanent standing court. Previously courts-martial were convened on an
ad hoc
basis with several traditions, including
usage of swords
. The court martial may try any
offence against service law
.
[28]
The court is made up of a judge advocate, and between three and seven (depending on the seriousness of the offence) officers and warrant officers.
[29]
Rulings on matters of law are made by the judge advocate alone, whilst decisions on the facts are made by a majority of the members of the court, not including the judge advocate, and decisions on sentence by a majority of the court, this time including the judge advocate.
[30]
United States
[
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Most commonly, courts-martial in the United States are convened to try members of the U.S. military for violations of the
Uniform Code of Military Justice
(UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including
military tribunals
and the enforcement of
martial law
in an
occupied territory
. Courts-martial are governed by the rules of
procedure
and
evidence
laid out in the
Manual for Courts-Martial
, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance. There are three types: Special, Summary, and General.
Fictional examples
[
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In
Herman Melville
's novella
Billy Budd
(first published 1924), the title character is convicted at a
drumhead court-martial
of striking and killing his superior officer on board HMS
Indomitable
, is sentenced to death, and is hanged. The novella has been adapted for the stage, film and television; notably in
Benjamin Britten
's 1951 opera
Billy Budd
.
In
C.S. Forester
's 1938 novel
Flying Colours
, Captain
Horatio Hornblower
is court-martialled for the loss of HMS
Sutherland
. He is "most honourably acquitted".
In
Michael Morpurgo
's novel
Private Peaceful
, the main character of "Tommo" reflects on the childhoods of himself and his brother, Charlie as Charlie awaits a court martial during WWI, which he receives at the end of the story for disobeying orders and cowardice in the face of the enemy.
Several courts-martial occur in the British naval TV series
Warship
, including notably that of Lieutenant Palfrey, a
Royal Marines
officer accused of killing a foreign officer during a military exercise, and that of
Fleet Air Arm
pilot Edward Glenn, brother of Alan Glenn, one the principal characters, charged with a range of offences relating to a dangerous flight manœuvre.
In the
Star Trek: The Next Generation
episode "The Battle" it was stated that, as the loss of a starship was a court martial offense,
Picard
was court-martialled for the loss of the
Stargazer
, zealously prosecuted by Phillipa Louvois. In the end, he was absolved of all charges.
The 1992 movie
A Few Good Men
(and
the play on which it was based
) deals almost entirely with the court martial of two enlisted Marines.
See also
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References
[
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]
Notes
[
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]
- ^
The Israeli occupation of the West Bank and Gaza is the longest military occupation in modern times.
Citations
[
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]
- ^
Robinson O. Everett
.
"Persons Who Can Be Tried by Court-Martial"
.
Duke University School of Law
.
- ^
James Snedeker (1 October 1949).
"Jurisdiction of Naval Courts Martial over Civilians"
.
Notre Dame Law Review
.
24
(4).
- ^
Note about the military justice
, French Senat
- ^
court-martial
at Merriam-Webster. Retrieved 23 Feb 2018.
- ^
court martial
at dictionary.cambridge.org. Retrieved 23 Feb 2018.
- ^
Clark, Andrew (14 July 2008).
"A keen soldier: the execution of second world war private harold pringle"
.
National Defence and the Canadian Forces
. Retrieved
8 August
2010
.
- ^
a
b
c
Sotilasoikeudenkayntilaki. (326/1983)
. (Act on military trials). Retrieved 30 August 2015.
(in Finnish)
- ^
a
b
Laki sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa (255/2014)
(Act on maintenance of military discipline and crime fighting in the Defense Forces). Retrieved 2015-0i-30.
(in Finnish)
.
- ^
"Basic Law for the Federal Republic of Germany (Grundgesetz, GG)"
.
www.iuscomp.org
.
- ^
"Courts Martial - Defence Forces"
.
military.ie
. Department of Defence
. Retrieved
15 April
2024
.
- ^
Undang-Undang Republik Indonesia Nomor 31 Tahun 1997 Tentang Peradilan Militer
[Law No. 31/1997 Regarding Military Court] (Law 31) (in Indonesian).
People's Representative Council
. 1997.
Archived
14 June 2009 at the
Wayback Machine
"Uu 31 Tahun 1997 - Peradilan Militer"
. Archived from
the original
on 14 June 2009
. Retrieved
12 February
2020
.
- ^
Pierre Majerus, L'Etat luxembourgeois, p 269, publ. Editpress, Luxembourg 1990
- ^
"Militair strafrecht"
[Military criminal-law],
Rechtspraak.nl
(in Dutch), Hoge Raad der Nederlanden, archived from
the original
on 5 August 2009
- ^
"Ustawa z dnia 21 sierpnia 1997 r. - Prawo o ustroju s?dow wojskowych"
.
isap.sejm.gov.pl
. Retrieved
26 March
2023
.
- ^
"Ustawa z dnia 6 czerwca 1997 r. - Kodeks post?powania karnego"
.
isap.sejm.gov.pl
. Retrieved
26 March
2023
.
- ^
"Konstytucja Rzeczypospolitej Polskiej"
.
www.sejm.gov.pl
. Retrieved
26 March
2023
.
- ^
Cabalza, Dexter (12 August 2023).
"Convicted AFP comptroller Carlos Garcia released"
.
Inquirer.net
. Retrieved
12 August
2023
.
- ^
Singapore Armed Forces Act (CHAPTER 295)
, Attorney-General's Chambers, archived from
the original
on 4 March 2016
, retrieved
24 September
2016
- ^
Opening Ceremony of the New SAF Court-Martial Centre
, Government of Singapore
- ^
Cheong, Danson (31 January 2016),
"Mindef course trains defending officers who represent court-martialled personnel"
,
The Straits Times
, Singapore Press Holdings Ltd
- ^
COURT MARTIAL DISSOLVED
, The Singapore Free Press
- ^
SAF soldiers damage new cars in illegal joyride
, The New Paper, archived from
the original
on 27 September 2016
- ^
Section 50
- ^
Sections 154 to 157
- ^
Sections 159 to 160
Sources
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]
Further reading
[
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]
- Macomb, Alexander
,
Major General
of the
United States Army
,
The Practice of Courts Martial
, (New York: Harper & Brothers, 1841) 154 pages.
- Macomb, Alexander,
A Treatise on Martial Law, and Courts-Martial as Practiced in the United States
. (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007),
ISBN
1-58477-709-5
,
ISBN
978-1-58477-709-0
, 340 pages.
External links
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Types of courts
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By structure
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By party
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By offense
or dispute
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