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 Convention requires 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]

A postpositive or postnominal adjective is an attributive adjective that is placed after the noun or pronoun that it modifies. This contrasts with prepositive adjectives, which come before the noun or pronoun.

Military Organization primarily tasked with preparing for and conducting war

A military is a heavily-armed, highly-organised force primarily intended for warfare, also known collectively as armed forces. It is typically officially authorized and maintained by a sovereign state, with its members identifiable by their distinct military uniform. It may consist of one or more military branches such as an Army, Navy, Air Force and in certain countries, Marines and Coast Guard. The main task of the military is usually defined as defence of the state and its interests against external armed threats. Beyond warfare, the military may be employed in additional sanctioned and non-sanctioned functions within the state, including internal security threats, population control, the promotion of a political agenda, emergency services and reconstruction, protecting corporate economic interests, social ceremonies and national honor guards.

Military justice is the body of laws and procedures governing members of the armed forces. Many nation-states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use civilian judicial systems. Legal issues unique to military justice include the preservation of good order and discipline, the legality of orders, and appropriate conduct for members of the military. Some states enable their military justice systems to deal with civil offenses committed by their armed forces in some circumstances.

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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 and Germany have no courts-martial in times of peace and use civilian courts instead. [3]

Navy Military branch of service primarily concerned with naval warfare

A navy or maritime force is the branch of a nation's armed forces principally designated for naval and amphibious warfare; namely, lake-borne, riverine, littoral, or ocean-borne combat operations and related functions. It includes anything conducted by surface ships, amphibious ships, submarines, and seaborne aviation, as well as ancillary support, communications, training, and other fields. The strategic offensive role of a navy is projection of force into areas beyond a country's shores. The strategic defensive purpose of a navy is to frustrate seaborne projection-of-force by enemies. The strategic task of the navy also may incorporate nuclear deterrence by use of submarine-launched ballistic missiles. Naval operations can be broadly divided between riverine and littoral applications, open-ocean applications, and something in between, although these distinctions are more about strategic scope than tactical or operational division.

France Republic with mainland in Europe and numerous oversea territories

France, officially the French Republic, is a country whose territory consists of metropolitan France in Western Europe and several overseas regions and territories. The metropolitan area of France extends from the Mediterranean Sea to the English Channel and the North Sea, and from the Rhine to the Atlantic Ocean. It is bordered by Belgium, Luxembourg and Germany to the northeast, Switzerland and Italy to the east, and Andorra and Spain to the south. The overseas territories include French Guiana in South America and several islands in the Atlantic, Pacific and Indian oceans. The country's 18 integral regions span a combined area of 643,801 square kilometres (248,573 sq mi) and a total population of 67.3 million. France, a sovereign state, is a unitary semi-presidential republic with its capital in Paris, the country's largest city and main cultural and commercial centre. Other major urban areas include Lyon, Marseille, Toulouse, Bordeaux, Lille and Nice.

Germany Federal parliamentary republic in central-western Europe

Germany, officially the Federal Republic of Germany, is a country in Central and Western Europe, lying between the Baltic and North Seas to the north, and the Alps, Lake Constance and the High Rhine to the south. It borders Denmark to the north, Poland and the Czech Republic to the east, Austria and Switzerland to the south, France to the southwest, and Luxembourg, Belgium and the Netherlands to the west.

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.

Armed Forces Act 2006

The Armed Forces Act 2006 is an Act of the Parliament of the United Kingdom.

The Queen's Regulations and Orders for the Canadian Forces (QR&O) are regulations having the force of law for the governance of the Canadian Forces. They are regarded as the primary document of military law and regulations in Canada – aside from the National Defence Act.

The National Defence Act is the primary enabling legislation for organizing and funding Canada's military.

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, in 1945, for a military offence. [6]

The Court Martial Appeal Court of Canada (CMAC) hears appeals from Courts-martial of Canada.

Capital punishment in Canada dates back to Canada's earliest history, including its period as a French colony and, after 1763, its time as a British colony. From 1867 to the elimination of the death penalty for murder on July 14, 1976, 1,481 people had been sentenced to death, and 710 had been executed. Of those executed, 697 were men and 13 were women. The only method used in Canada for capital punishment of civilians after the end of the French regime was hanging. The last execution in Canada was the double hanging of Arthur Lucas and Ronald Turpin on December 11, 1962, at Toronto's Don Jail.

Harold Joseph Pringle was the only soldier of the Canadian Army to be executed during the Second World War.

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 e.g. various types of disobedience and absence without leave, while the latter category includes e.g. 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 the 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) and only against soldiers abroad or at sea. However, no such law has been passed to date and German soldiers are tried exclusively before civil courts.

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.

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. [11]

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 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, [12] 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. [13] [14] Some of the early day courts martial in Singapore include CPT G. R. Wadsworth due to use of insubordination language [15] and in the modern day misbehaviours by conscripted servicemen. [16]

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. [17] 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. [18] 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. [19]

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".

See also

Related Research Articles

Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges and on the same facts, following a valid acquittal or conviction. As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."

A summary offence is a crime in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.

The Courts of England and Wales, supported administratively by Her Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.

The Uniform Code of Military Justice is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power....To make Rules for the Government and Regulation of the land and naval forces".

Judge Advocate Generals Corps military service branch concerned with military legal and judicial affairs

The Judge Advocate General's Corps is the branch or specialty of a military concerned with military justice and military law. Officers serving in a JAG Corps are typically called judge advocates. Only the chief attorney within each branch is referred to as the Judge Advocate General; however, individual JAG Corps officers are colloquially known as JAGs.

United States Court of Appeals for the Armed Forces

The United States Court of Appeals for the Armed Forces is an Article I court that exercises worldwide appellate jurisdiction over members of the United States Armed Forces on active duty and other persons subject to the Uniform Code of Military Justice. The court is composed of five civilian judges appointed for 15-year terms by the President of the United States with the advice and consent of the United States Senate. The court reviews decisions from the intermediate appellate courts of the services: the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals, and the Air Force Court of Criminal Appeals.

Judicial system of Finland

Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.

Courts-martial of the United States are trials conducted by the U.S. military or by state militaries. Most commonly, courts-martial are convened to try members of the U.S. military for criminal 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. Federal 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. State courts-martial are governed according to the laws of the state concerned. The American Bar Association has issued a Model State Code of Military Justice, which has influenced the relevant laws and procedures in some states.

Judicial system of Turkey

The judicial system of Turkey is defined by Articles 138 to 160 of the 1982 Constitution. Civilian and military jurisdiction are separated. While military courts usually only try military personnel, they can also try civilians in times of martial law and in matters concerning military service.

A United States military jury serves a function similar to an American civilian jury, but with several notable differences. Only a General Court-Martial or Special Court-Martial includes members. There are no members in a trial by Summary Court-Martial. If the accused at a general court-martial or special court-martial chooses to be tried by members rather than by a military judge alone, then the members are responsible for both rendering a verdict and a sentence should the accused be found guilty of the charges. The charges are brought forward by an officer called a "convening authority", and the convening authority also personally selects each of the members who will try the accused. The charges which have been levied by the convening authority are prosecuted at courts-martial by Judge Advocates called "trial counsel". Accused persons facing general or special courts-martial receive representation free of charge from Judge Advocates acting as defense counsel. Accused persons may also be represented at general or special courts-martial by civilian attorneys hired at their own expense. While not required by Congressional law, service policy provides that many military accused receive the benefit of representation from a Judge Advocate defense counsel free of charge at summary courts-martial as well.

The Navy-Marine Corps Court of Criminal Appeals (NMCCA) is the intermediate appellate court for criminal convictions in the United States Navy and the Marine Corps.

The Court of Criminal Jurisdiction was a criminal court established in 1787 under the auspices of the First Charter of Justice in the British Empire of New South Wales, now a state of Australia. The Court of Criminal Jurisdiction was the first criminal court in the colony. The Court was abolished in 1823, replaced by the Supreme Court of New South Wales.

The military courts of the United Kingdom are governed by the Armed Forces Act 2006. The system set up under the Act applies to all three armed services: the Royal Navy, the Army and the Royal Air Force (RAF), and replaces the three parallel systems that were previously in existence.

The main Offences against military law in the United Kingdom are set out in the Armed Forces Act 2006.

The term convening authority is used in United States military law to refer to an individual with certain legal powers granted under either the Uniform Code of Military Justice or the Military Commissions Act of 2009.

The Judge Advocate General's Corps, also known as JAG or JAG Corps, is the military justice branch or specialty of the U.S. Air Force, Army, Coast Guard, and Navy. Officers serving in the JAG Corps are typically called judge advocates.

The Judiciary Organization of the Armed Forces is part of the Iranian judiciary. Composed of prosecutor offices and courts-martial, it is the only specialized judicial authority anticipated in the Constitution of the Islamic Republic of Iran.

The military courts of Thailand are judicial bodies with criminal jurisdiction over members of the Royal Thai Armed Forces and sometimes also over civilians as may be assigned by law, as was the case from 25 May 2014 until 12 September 2016 following the 2014 Thai coup d'état.

References

  1. Robinson O. Everett. "Persons Who Can Be Tried by Court-Martial". Duke University School of Law.
  2. James Snedeker (October 1, 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. Pierre Majerus, L'État luxembourgeois, p 269, publ. Editpress, Luxembourg 1990
  11. "Militair strafrecht" [Military criminal-law], Rechtspraak.nl (in Dutch), Hoge Raad der Nederlanden, archived from the original on 5 August 2009
  12. Singapore Armed Forces Act (CHAPTER 295), Attorney-General's Chambers
  13. Opening Ceremony of the New SAF Court-Martial Centre, Government of Singapore
  14. Mindef course trains defending officers who represent court-martialled personnel, Singapore Press Holdings Ltd
  15. COURT MARTIAL DISSOLVED, The Singapore Free Press
  16. SAF soldiers damage new cars in illegal joyride, The New Paper, archived from the original on 27 September 2016
  17. Section 50
  18. Sections 154 to 157
  19. Sections 159 to 160

Further reading

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