Court-martial

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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]

Contents

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

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

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

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

Canada

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]

Finland

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

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.

India

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. Higher government authorities do not deal with the military doctrines. The president of India can use his judicial power, (Article 72), to give either pardon, reprieve, respite or remission of punishment or sentence,,, given by a court martial.

Indonesia

In Indonesia, any criminal offense conducted by military personnel will be held in trial by military court. There are four levels of military jurisdiction: [10]

The judges will receive temporary rank the same as the defendant if the rank of the defendant is higher than the judges.

Luxembourg

In Luxembourg, there are three levels of military jurisdiction:

Netherlands

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. [12]

New Zealand

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 he or she presides 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.

Singapore

Under the Singapore Armed Forces Act, [13] 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. [14] [15] Some of the courts martial in Singapore include that of Capt. G. R. Wadsworth in 1946 due to use of insubordinate language [16] and, in the modern day, misbehaviour by conscripted servicemen. [17]

Thailand

The governing law in Thailand's military courts is the Military Court Organisation Act 1955 (Thai : พระราชบัญญัติธรรมนูญศาลทหาร พ.ศ. ๒๔๙๘). The act allows the Judge Advocate General of Thailand (Thai : เจ้ากรมพระธรรมนูญ) to establish court regulations. In wartime or during the imposition of martial law, military courts may adopt special procedures.

United Kingdom

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. [18] 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. [19] 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. [20]

United States

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

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-martialed 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.

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-martialed for the loss of the Stargazer, zealously prosecuted by Phillipa Louvois. In the end, he was absolved of all charges.

See also

Related Research Articles

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References

  1. Robinson O. Everett. "Persons Who Can Be Tried by Court-Martial". Duke University School of Law.
  2. James Snedeker (1 October 1949). "Jurisdiction of Naval Courts Martial over Civilians". Notre Dame Law Review . 24 (4).
  3. Note about the military justice, French Senat
  4. court-martial at www.merriam-webster.com. Retrieved 23 Feb 2018.
  5. court martial at dictionary.cambridge.org. Retrieved 23 Feb 2018.
  6. 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.
  7. 1 2 3 Sotilasoikeudenkäyntilaki. (326/1983). (Act on military trials). Retrieved 30 August 2015. (in Finnish)
  8. 1 2 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).
  9. "Basic Law for the Federal Republic of Germany (Grundgesetz, GG)". www.iuscomp.org.
  10. "Undang-Undang Republik Indonesia Nomor 31 Tahun 1997 Tentang Peradilan Militer" [Law No. 31/1997 Regarding Military Court]. Law No. 31 of 1997 (in Indonesian). People's Representative Council.
  11. Pierre Majerus, L'État luxembourgeois, p 269, publ. Editpress, Luxembourg 1990
  12. "Militair strafrecht" [Military criminal-law], Rechtspraak.nl (in Dutch), Hoge Raad der Nederlanden, archived from the original on 5 August 2009
  13. Singapore Armed Forces Act (CHAPTER 295), Attorney-General's Chambers
  14. Opening Ceremony of the New SAF Court-Martial Centre, Government of Singapore
  15. Cheong, Danson (31 January 2016), "Mindef course trains defending officers who represent court-martialled personnel", The Straits Times, Singapore Press Holdings Ltd
  16. COURT MARTIAL DISSOLVED, The Singapore Free Press
  17. SAF soldiers damage new cars in illegal joyride, The New Paper, archived from the original on 27 September 2016
  18. Section 50
  19. Sections 154 to 157
  20. Sections 159 to 160

Further reading

  1. "the definition of court-martial". www.dictionary.com.