DEVELOPING TRENDS OF MILITARY JUSTICE SYSTEM*
Dr. Dini Dewi Heniarti
Lecturer on Law at Faculty Law, Bandung Islamic University Indonesia
Email : bunda_difa@yahoo.com
Dr. Agus Ahmad Safei
Lecturer on Sociology at State Islamic University of Sunan Gunung Djati Bandung, Indonesia.
Email : agusafe@yahoo.com
ABSTRACT
It is generally known that military justice has existed since armies came into being.
There have been various attempts to classify types of military jurisdiction. Some scholars
have different views by using thematic classifications/typologies, based on the specific
features of military courts, and a national models approach. The paper will demonstrate
that military jurisdiction and military justice have been institutionalized in many countries.
There is a growing trend towards abolition of the use of military courts for the trial of
civilians. A number of States have military jurisdiction established in their
constitutions, along with regulations relating to their composition, operation and
powers. This paper examines the convergent and divergent military courts of state
practices as seen from the comparative law perspective and scope of such regulations
varies from country to country.
Key words : military; justice; system
armed forces themselves. It is that particular
1.1
conceptual approach to the making of military law
Introduction
which, it will be argued, has characterized much of
This autonomy essentially remained the case
the rapid legal transformations in this field in the
until the first stirrings of change in the 1960s when
past twenty years. To borrow Scott's definition,
the 'civilianization' of military law, that is, the
juridification describes a process by which
(consensual) incorporation into military law of
relations hitherto governed by other values and
perceived beneficial civilian legal norms was
expectations come to be subjected to legal values
accepted by government and approved by the
[5]
and rules. In regard to the military justice system,
law ignores these other norms, assuming its
there is a limited colonization by civilian legal
supremacy over them, at its peril.” 3
norms, especially of crucial territory governing
Traditionally, military justice has been a
aspects of military discipline and terms of
rough form of justice emphasizing summary
engagement,
procedures,
which
had
previously
been
speedy
convictions
and
stern
unoccupied by explicit legal criteria. Although
penalties with a view to maintaining obedience
crucial inroads into military law have been made
and fighting fitness in the ranks. They [courts-
by juridification, there has not occurred, over the
martial] have always been subject to varying
whole system of military justice, the
degrees of "command influence." In essence,
elimination of local command authority. For
these tribunals are simply executive tribunals
example summary dealing by a local commander,
whose personnel are in the executive chain of
but not appeals there from, is still lawyer-free.
1
command. Military law is, in many respects, harsh
Courts have adopted a hands-off approach,
law which is frequently cast in very sweeping and
believing that the military is a separate society,
vague terms. It emphasizes the iron hand of
totally foreign to the uninitiated and instruct able
discipline more than it does the even scales of
to outsiders…, interference from civilian courts
justice." In view of these misgivings about military
would be determined to morale and would thus
law and the court-martial system, it is not
pose grave danger to national security. 2
surprising that Justice Black and his colleagues
Mark J. Osiel stated that:
could find no way to permit the court-martial of
civilian dependents.4
“Military law inevitably rests on
certain assumptions about what holds armies
As the civil judiciary is free from the control of the
together and makes them effective. These
executive, so the military [judiciary] must be
concern both the kind and extent of social
untrammeled and uncontrolled in the exercise of
solidarity that such organizations require and
its functions by the power of military commanders.
how it is produced. Law is only one among
The decision of questions of law and legal rights is
several kinds of norms that governs social life.
not an attribute of military command.5
In striving influence a given societal sphere
3
Mark. J. Osiel, Obeying Orders, Atrocities,
Military Discipline& the Law of War ( New
Brunswick (USA) and London (UK): transaction
Publisher, 1998, p. 163.
4
John C. Ries and Owen S. Nibley,Justice, Juries,
and Military Dependents Author(s): Source: The
Western Political Quarterly, Vol. 15, No. 3 (Sep.,
1962), pp. 438-448 Published by: University of
Utah on behalf of the Western Political Science
Association
Stable
URL:
http://www.jstor.org/stable/445034
Accessed:
12/11/2009 18:24,p.440)
5
Major Joshua M. Toman, Headquarters,
Department
of
the
Army,
Washington,
1
H.W. Arthurs, 'Special Courts, Special Law:
Legal Pluralism in l9th Century England', in G.R.
Rubin and D. Sugarman (Eds), Law, Economy and
Society: Essays in the History of English Law,
1750-1914 (Abingdon: Professional Books, 1984)
,p. 380-411.
2
Jennifer K. Elsea, Evolving Military Justice,
Edited by Eugene R. Fidellv and Dwight H
Sullivan, Naval Institute press, Annapolis,httindak
pidanas:?international,westlaw.com/result/documrn
ttext.aspx? blinkedcite,2003,p.1.
[6]
Military
justice
civilian
authorities,
of the lesser military offenses the maximum
although possessing power to try servicemen, are
punishment was life imprisonment, with sentences
reluctant to use it. They generally prefer to return
actually imposed not infrequently running beyond
military culprits to military control. Usually local
the maximum possible penalty for armed robbery.
working arrangements are developed between
Military offenses (which are entirely beyond the
military and civilian authorities along this line.
jurisdiction of civilian authorities) account for the
During World War II, the standard practice, so far
greater part of the work involved in the
as the Army was concerned at least, was for
administration of military justice. Two-thirds of all
military courts to handle all cases involving
persons imprisoned by sentence of court-martial
servicemen, murder and rape included. As to
were convicted solely of military offenses. The
crimes committed by servicemen outside of the
remaining one-third was found guilty of either
United States, the military authorities have
civilian- type crimes alone or civilian and military
exclusive jurisdiction. By the rules of international
offenses combined. Whether the absence of
law, American servicemen in hostile territory are
certain types of civilian crimes in the armed forces
not subject to trial by the local civilian courts, but
is compensated by the presence of military
only to trial by American military courts. The same
offenses, we do not know-any more than we know
is true when American forces are in friendly
whether conditions of military life tend to increase
territory. In fact, during World War II, England
or decrease crime. In the absence of further
codified this rule of international law into a
knowledge about the causes and incidence of
statute. Thus, whether considered from the point
crime, any a priori judgment which would
of view of subject matter or geography, military
invalidate the statistical conclusions already
jurisdiction is adequate to deal with all crimes
reached seems unjustified.
committed by men in the armed forces.6
As a consequence, for the bulk of
In fact, during World War II, military
academics and civilian practitioners military law
offenses generally carried heavier penalties than
was terra incognita, an autonomous realm vis-a-vis
civilian-type crimes. For example, for armed
the civilian legal system. Indeed there are grounds
robbery-unquestionably a serious civilian- type
for suggesting that military law exemplified what
crime-the maximum punishment in the Army was
Arthurs has referred to as nineteenth-century legal
ten years in jail; but for absence without leave-one
pluralism, embracing those 'legal systems' in the
United Kingdom which remained outside the orbit
of control of the judiciary at Westminster Hall.
D.C.Pamphlet No. 27-100-195, Spring 2008,
Military Law Review-Volume 195,p.1.
6
Delmar Karlen and Louis H. Pepper ,The Scope of
Military Justice Author(s): Source: The Journal of
Criminal Law, Criminology, and Police Science,
Vol. 43, No. 3 (Sep. - Oct., 1992), p. 285-298
Published by: Northwestern University Stable
URL:
http://www.jstor.org/stable/1139145
Accessed: 12/11/2009 19:13,p. 291-193).
Arthurs cites Stan nary law, commercial arbitration
and tribunals of commerce as sites of legal
pluralism during this period, that is, Alsatians
wherein the King's writ did not run. In regard to
military law, whether theoretically the latter did
[7]
constitute a wholly separate 'legal system' may be
The act constituting forced disappearance shall not
to over-state the case (but only marginally) given
be deemed to have been committed in the course
the occasional judicial utterance in the nineteenth
of military duties. The convention did not only
century suggesting that the civil courts might be
exclude members of the military jurisdiction, as
prepared to accept jurisdiction over military
the Declaration did. It also established that it was
questions in 'exceptional' circumstances. But
not possible to
somehow
consider
exceptional
circumstances
never
an
act
constituting
enforced
seemed to arise and therefore for a period of
disappearance to be an offence committed in the
perhaps a hundred years, from the mid-nineteenth
line of duty (delicto de function). A service-related
to the mid-twentieth century, the civil courts
act (acto de servicio) or an ordinary criminal
adopted a 'hands-off' approach to military
offence committed while on duty (delito comun
disputes, with the result that military law
cometido con occasion al servicio. Where other
remained effectively autonomous of and immune
gross human rights violations are concerned, there
to civilian judicial oversight.
are no international instruments, either treaty
There are few norms which specifically
based or declaratory, containing specific provisions
refer to the trial of perpetrators of gross human
relating to military jurisdictions. Nevertheless,
rights violations under military jurisdiction. The
despite this, the Commissions on Human Rights
United Nations Declaration on the Protection of All
and its Sub-Commission on the Promotion and
Persons from Enforced Disappearance was the first
Protection on Human Rights have adopted several
international
specific
resolutions urging States to exclude gross human
provisions on the trial of human rights violators
rights violations from the jurisdiction of military
under military jurisdiction. Article 16 (2) stipulates
courts.( For example it is worth mentioning
that those responsible for enforced disappearance,
Resolutions 1989/32 of the Commissions on
either as principle or accessory,”(…) shall be tried
Human Rights which recommends that State
only by the competent courts in each state, and
should bear in mind an implement the principles
not by any special tribunal, in particular military
contained in the draft Universal Declaration on
courts.”
Independence of Justice. Principles 5 (f) of the
instrument
to
have
The Inter-American Convention on Forced
draft, known at the Singvi Declaration, Expressly
Disappearance of Persons, adopted in 1994, was
stipulates that the jurisdiction of military courts
the first treaty to address this issue. In article IX, it
should be limited to military offences. Similarly,
specifies that ,” Person alleged to be responsible
the Commission on Human Rights, in Resolution
for the act constituting the offense of forced
1194/67, entitled “Civil Defence Forces”. 7 It is
disappearance of person may be tried only in the
often said that military justice has exited ever
competent jurisdictions of ordinary law in each
since armies came into being. Some authors
state, to the exclusion of all other special
jurisdictions, particularly military jurisdictions.(…).
7
Resolution 1994/67, Civil Defence Forces,
Paragraph 2.
[8]
believe that what constitutes military criminal law
1.2 Analysis
today came into flower8 in Roma while others go
The well known phrase,” where there is an
back to Ancient Greece, citing the example of the
army, there is military justice”11, which sought to
military court which condemned General Filotas to
claim that military courts existed as a natural
death for conspiring against Alexander the Great in
consequence of the existence of the military
330 BC. 9 In the time of Roman Empire, troop
apparatus and where therefore a matter of
discipline was maintained by enforcing the
indisputable historical fact, has been widely
principle of who giver the orders sits in judgment,
discredited. Historically, that fact that armies
the predominant figure being the Magister
existed did not always mean that they were
Military. It was also during that period that the
accompanied by organ of military justice, an
famous Ciceronian phrase “silent leges inter
example being Imperial China. At the present time,
arma” ( that laws are silent amidst arms) was
several countries with armies do not have a system
coined to describe that sui generis relationship
of military justice operating in peacetime. In those
that existed between law and military matters.
countries,
Nevertheless that Eurocentric view of the world,
wrongdoing within the ranks of the military falls to
which fail to take account of the reality of the
the ordinary courts and/or discipline bodies.
responsibility
for
punishing
any
situation and historical events in other parts of the
There is difficulty in classifying military courts.
world, is nowadays is contested. For example, in
While there are number of common denominators
1979 at the VIII International Congress of the
within national legal systems as far as ordinary
International Society for Military Law and the Law
jurisdiction is concerned, this is not the case for
of war, Belgian Judge Advocate and university
military jurisdiction. That is what Franssisco
professor John Gilissen concluded that “it seems
Fernandez Segado has found as far as European
that it is not possible to talk about military justice
systems of military justice are concerned. 12 There
existing before that the 15 th and 16 th
have been various attempts to classify types of
centuries.10
military jurisdiction. For example, in 1979 John
Gilissen suggested a means classification based on
the three main existing system of law; the
8
Fransisco Jimenez y Jimenez, Introduccion al
Derecho Penal Militar, Editorial Civitas S.A.,
Madrid, 1987,p.178.
9
Military Jurisdiction Seminar,10-14 October
,2001 at Rhodos-Report, on the web page of the
International Society for Military Law and the Law
of war: http://www.soc-mil-law.org/seminar%20
Rhodos%20Report.htm.
10
John Gilissen, Evolution Actuelle de la Justice
Militaire, Rapport general, in Huiteme Congress
International, Ankara, 11-15 October, 1979,
L’Evolution Actuellede la Justice Militaire,
Rescueils de la Societe Internationale de Droit
Penal Militaire et de Droit de la Guerre, VIII,
Volume 1, Bussels, 1981,p.48. (Frenc original, free
translation)
common law system, the roman law system and
the socialist system.13 John Stuart Smits, Francis
Clair and Klaus suggested a classification based on
the jurisdictional powers of military court. They
distinguished four different systems as follow: one
11
Ibid.,p.39.
Fransisco Fernandez Segado, La Justitia Militair
en el Derecho Comparado, in Consejo General del
Polder Judicial, Poder Judicial,2a ecopa No.23
Madrid, September 1991.p.60.
13
John Gillissen,Evolution, Op. Cit., p.48.
12
[9]
in which military courts have general jurisdiction,
tempore),
on in which they have general on temporary basis,
compositions and operation , position within the
one in which jurisdiction is limited to military
state structure, relationship with the judiciary,
offences and on in which they have jurisdiction
sources of law,etc.,it is difficult to come up with a
solely in time of war.
14
account
is also
taken
structure,
model for classifying military courts. The fact is
Another method of classification, which
that, when these elements are taken into account,
takes as its starting point the aims and objectives
military
of a state based on the rule of law, proposes three
heterogeneous and features from several of
types of military jurisdiction: firstly, the traditional
models put forward by the theorist are present in
kind, based on principle of he who gives the orders
every national system. The position occupied by
sits in judgment, made up of members of the
military criminal jurisdiction within the state
military and endowed with broad jurisdictional
structure differs from one country to another. In
powers, secondly, one in which military justice in
several legislations, military courts are formally
incorporated into ordinary jurisdiction as a
part of the judiciary. In such cases, they are some
specialized branch the latter ;and thirdly. One in
times incorporated into ordinary jurisdiction and
which military justice is abolished in peacetime. 15
some times constitute a special jurisdiction. For
But this typology corresponds more to the ways in
example, in Suriname, the constitution specifies
which military courts have evolved historically
that military justice is separate from ordinary
rather than to models of military justice. Some
jurisdiction. In some countries, different stages of
authors have opted for thematic classification or
jurisdiction are provided by different jurisdictional
typologies, based on the specific features of
organs, some military and some from the judiciary.
military courts, or for an approach based on
Conversely, in many countries military courts fall
national models.16
outside of the scope of the judiciary and, in term
These attempts at classification and
methods
of
approach
have
helped
the
in
responsible to the Ministry of Defence, attached to
the executive.
However, their usefulness is relative and, in some
authority to confirm and review verdict handed
cases, the proposed typologies are debatable.( If
down by military courts. In Federal Republic
as
to
Yugoslavia, the powers to appoint and remove
jurisdiction (ratione personae,loci, materiae, and
presiding judges, judges are prosecutors in military
considering
comparative
and
In some countries the judiciary retains the
as
of
diverse
law.
well
perspective
extremely
of organization and function, are often, when not
understanding different aspects of military courts
from
courts
factors
related
courts lays with the President of the Republic. 17
The composition of military courts varies
14
Ibid.
Fundacion Myrna Mack, Justitia Militar,1996.on
web page
ttp://www.minugua.guate.net/derhum/CDROM/ase
gunda%20incorporacion/justitia%20Militar/justiyia
.htm
16
Fransisco Fernandes Segado. Op.cit.
15
from country to country. In many countries, they
17
Article 138 of the Constitution of the Federal
Republic of Yugoslavia.
[10]
are made up solely of active members of the
clearly distinguishing between the one and the
armed forces or police. For example in Israel
other.20
judges and prosecutor in military courts are
In several countries, military systems of
officers on active service or in the Defence Forces
criminal justice and discipline coexist. Other
reserve. Judge are appointed by the regional
systems of military law simply make no distinction
commander of the Defence Force. 18 There is
in law between a criminal offence and breach of
frequently no legal requirement for these military
discipline. They are based on the concept of the
judges to have undergone any legal training. There
“service offence”, which encompassed both
is also often no distinction between military
military offences and breaches of discipline, as
criminal jurisdiction and the operational command
opposed to the civil offence, which equates to
structure
the
criminal offences and misdemeanors. For example,
commander of the military operating unit himself
in the United States of America, military courts try
being a military judge. In many countries it can be
any infraction, be it criminal offence or breach of
seen that military criminal jurisdiction is structured
discipline, committed by those under their
along the same lines as the armed forces in terms
jurisdiction.
of rank, hierarchy and chain of command. In other
procedures constitute a phase that precedes trial
countries, military jurisdiction is separate from the
before a military court. In other countries which
operational command structure of the armed
have abolished military courts in peacetime, such
forces. There is frequently no legal requirement
as Austria, Germany and Japan, wrongdoing is
for these military judges to have undergone any
punished through the use of disciplinary or
legal training. There is also often no distinction
administrative courts, with action sometimes also
between military criminal jurisdiction and the
being taken simultaneously in the ordinary
operational command structure of the armed
criminal court. for example in Denmark, grave
forces, with the commander of the military
breaches of the Geneva Convention are dealt by
operating unit himself being a military judge. In
applying military disciplinary law as well as
many countries it can be seen that military
enforcing the ordinary criminal code in the civilian
criminal jurisdiction is structured along the same
courts.
of
the
armed
forces,
with
In
some
countries
disciplinary
lines as the armed forces in terms of rank,
Different systems of military criminal law
hierarchy and chain of command. In other
criminalize different kinds of unlawful behavior
countries, military jurisdiction is separate from the
and there is no consistency about what is meant
operational command structure of the armed
by a “military offence”. Under many military codes
forces.19 As Manlio Lo Casio has pointed out : ‘ is
of justice, all of the following are criminalized:
not possible to determine a scientific basic for
military offences strict sensu, military offences latu
sensu, ordinary criminal offences that are treated
as military offences due to the circumstances in
18
19
Fransisco Jimenez y Jimenez, Op.Cit.,p.61-75,
Ibid.
20
[11]
Ibid.
which they are committed, and ordinary offences
effectively abolished the armed forces as a
that have been militarized.
potential for war. 21 The Japanese Armed forces
In some system, these distinctions have
continued to exist but only as a national defence
been formalized while in others any criminal
force and their personnel were subject to ordinary
infraction specified in the military code of justice is
criminal law and the ordinary courts. In case of
classified as military offences. In addition, some
Costa Rica, technically it can not be said that
systems which still cling on the old idea of military
military justice as such has been abolished. Its
jurisdiction being a class privilege consider any
disappearance resulted from the abolition of the
criminal infraction committed by or against a
Costa Rica Army. Several other countries, including
member of the military offence. In a similar vein,
Germany, Austria, Norway and Sweden, have also
several codes of military justice consider any
abolished military courts in peacetime.
offence committed in e military establishment or
Nevertheless,
while
John
Gilissen’s
on military site, regardless of the nature of the act
observations are true for a large number of
and whether or not perpetrator or the victim are
countries, especially in Europe, they do not tell the
members of the military, to be subject to military
whole story and must put into perspective.
jurisdiction. In quite a large number of countries,
Decolonization
military courts have jurisdiction any offence
struggles, conflict over territory and redrawing of
committed by military personnel while in service.
frontiers inherited from former powers, the “the
National law therefore use formulas such as “
cold war” which characterized the post war period,
delito de function” ( an offence committed in the
the adaption in several parts of the world,
line duty), “ acto de servicio” ( a service related act
especially Latin America, of the Doctrine of
or offence). “ delito to comedito con occasion al
National Security and the emergence of military
servicio” (an offence committed due to service), “
dictatorship and authoritarian governments in
delito de mision’ ( a mission offence), “delito de
many countries of Africa, Latin America, Asia and
ambito castrense” ( an offence within the military
the Middle East set the stage for the expansion of
sphere). It is through the use of such labels that
“ military justice” in many countries. Military
military courts are able to try human rights
courts became an important component of
violations against civilians that amount to crimes,
military strategy, not as a tool for disciplining the
such a torture, extrajudicial execution an enforced
troops but as weapon with which to fight the
disappearance.
adversary. The Doctrine of National Security, in
After the Second World War, some
countries
abolished
military
criminal
particular,
processes,
turned
military
national
courts
liberation
into
an
courts
instrument for combating the so-called ‘enemy
altogether. With the adaption of the Japanese
within. Thus as point out by one of its critics, the
Constitution on May 1946, the Military Criminal
late President of the Colombian Supreme Court of
Codes for the Land and Sea Armies of 1921 and
Justice, Alfonso Reyes Echandia, the practice of
1922 were repealed. The 1946 Constitution
21
[12]
Fransisco Jimenez y Jimenez Op.Cit.,134.
trying civilians in military courts was to become an
countries, such Ireland similar reforms are on the
extension of The Doctrine of National security. 22
way.
Thus, as the late President of Columbian Supreme
A significant number of State have military
Court of Justice, Dr, Alfonso Reyes Echandia, the
jurisdiction established in their constitutions,
practice of trying civilians in military courts was to
together with
become extension of the Doctrine of National
composition, operation and powers. The scope of
23
regulations
relating to
their
Security. From a different standpoint, US General
such regulations varies from country to country.
and Judge Advocate. George S, Prugh said, “ is the
Some allow military courts to have extensive
goal to insure discipline in the force?. Most codes
powers. For example, the Irish Constitution of
go far beyond and allow jurisdiction over some
1937
civilians in certain circumstances, oftentimes for
jurisdiction. Article 38 94.1) stipulates that military
offences which are considered to be against
tribunals can be established for the trial of
national security. So one might consider that the
offences against military law alleged to have been
purpose is broader than insuring forces discipline;
committed by persons while subject to military law
it also to insure national security.24 Despite these
and also to deal with a state of war or armed
realties, the trend pointed by John Gilissen in 1979
rebellion. The Constitution of the Federal Republic
continued in the 1980s and beyond. In his 2002
of Brazil probably has more articles on military
report, the United Special Rapporteur on the
jurisdiction than any other. For example, article 92
Administration
Military
states that : the military tribunals and judges (…)
Tribunals noted a deepening of these trends. 25 In
are part of the judiciary (…). Article 24 of the
fact during the 1980s and`1990s, military courts in
Constitution give a general definition of the scope
peacetime were abolished in many countries, for
of Brazilian military jurisdiction: “ it is the
example Denmark, Slovenia, Estonia, France, the
responsibility of the military justice system to try
Netherlands, the Czech Republic and Senegal.In
and judge military crimes defined as such in law. In
many countries such as Canada and the United
addition, article 109 states that: it is the
Kingdom, reforms have been introduced to ensure
responsibility of the federal judges to try and judge
that judicial guarantees are afforded to military
(…) (among others) political offences and criminal
personnel facing trial in military courts. In other
infractions against the assets, services or interests
of
justice
through
gives
military
courts
broad-ranging
of the Union or independent bodies and public
22
Alfonso Reyes Echandia, Legislacion y
Seguridad Nacional en America Latina, in the
Magazine 6 de November No,2, Bogota, June,
1986. p. 12.
23
Ibid
24
Georges
Prugh,
The
Exercise
of
MilitaryJurisdiction in Periods of Military Stress.
De La Justice Militaire, Recueils de la Societe,
Internationale de Droit penal Militaire et de La
Guerre, VIII, Volume 1. Brussels, 1981.-.292.
25
United Nation Document E/CN.4/Sub.2/2002/4,9
Juli 2002.
sector companies, except for minor offences and
offences for which military justice competent (…)
offences committed on board ships or aircraft,
except those for which military justice competent
(…). The Constitutions also stipulates that military
jurisdiction encompasses offences committed both
in peacetime and wartime. The composition of
[13]
military courts varies from country to country. In
about military law and the court-martial system, it
many countries, they are made up solely of active
is not surprising that Justice Black and his
members of the armed forces or police. For
colleagues could find no way to permit the court-
example in Israel judges and prosecutor in military
martial of civilian dependents
courts are officers on active service or in the
In some system, these distinctions have been
Defence Forces reserve. Judge are appointed by
formalized while in others any criminal infraction
26
specified in the military code of justice is classified
There is frequently no legal requirement for these
as military offences. In addition, some systems
military judges to have undergone any legal
which still cling on the old idea of military
training. There is also often no distinction between
jurisdiction being a class privilege consider any
military criminal jurisdiction and the operational
criminal infraction committed by or against a
command structure of the armed forces, with the
member of the military offence. In a similar vein,
commander of the military operating unit himself
several codes of military justice consider any
being a military judge. In many countries it can be
offence committed in e military establishment or
seen that military criminal jurisdiction is structured
on military site, regardless of the nature of the act
along the same lines as the armed forces in terms
and whether or not perpetrator or the victim are
of rank, hierarchy and chain of command. In other
members of the military, to be subject to military
countries, military jurisdiction is separate from the
jurisdiction. In quite a large number of countries,
operational command structure of the armed
military courts have jurisdiction any offence
forces.
committed by military personnel while in service.
the regional commander of the Defence Force.
Different
1.2
Conclusion
systems
of
military
criminal
law
criminalize different kinds of unlawful behavior
Traditionally, military justice has been a rough
and there is no consistency about what is meant
form of justice emphasizing summary procedures,
by a “military offence”. Under many military codes
speedy convictions and stern penalties with a view
of justice, all of the following are criminalized:
to maintaining obedience and fighting fitness in
military offences strict sensu, military offences latu
the ranks. They [courts-martial] have always been
sensu, ordinary criminal offences that are treated
subject
"command
as military offences due to the circumstances in
influence." In essence, these tribunals are simply
which they are committed, and ordinary offences
executive tribunals whose personnel are in the
that have been militarized.
to
varying
degrees
of
executive chain of command. Military law is, in
Military jurisdiction and military justice
many respects, harsh law which is frequently cast
exist as institutions in many countries. It also
in very sweeping and vague terms. It emphasizes
remains common practice in many parts of the
the iron hand of discipline more than it does the
world for military personnel who have committed
even scales of justice." In view of these misgivings
human rights violations to be tried in military
courts. Nevertheless as John Gilissen has pointed
26
Fransisco Jimenez y Jimenez,Op.Cit.,61-75,
[14]
out, since 1950s and 1960s, there is has been an
Delmar Karlen and Louis H. Pepper ,The Scope of
Military Justice Author(s): Source: The Journal of
Criminal Law, Criminology, and Police Science, Vol.
43, No. 3 (Sep. - Oct., 1992), p. 285-298 Published
by: Northwestern University Stable URL:
http://www.jstor.org/stable/1139145
increasing tendency to curb the jurisdiction of
military courts both rasione tempore and ratione
materiae, and their structures have begun to
undergo a process of “civilization”, in their words (
Fransisco Fernandez Segado, La Justitia Militair en
el Derecho Comparado, in Consejo General del
Polder Judicial, Poder Judicial,2a ecopa No.23
Madrid, September 1991.
to move towards a situation), in which civilians and
particular civilian judges, have an increased role in
the composition of military courts.27 Likewise, the
question of ensuring that human rights of military
Fransisco Jimenez y Jimenez Introducion al
Derecho Penal Militar,Ed. Civitas, Madrid, 1987.
personnel facing trial in military courts are
respected gradually began to emerge and to be
Fundacion Myrna Mack, Justitia Militar,1996.on
web page
ttp://www.minugua.guate.net/derhum/CDROM/a
segunda%20incorporacion/justitia%20Militar/justi
yia.htm
translated into legal reforms in several countries.
Need to be legally different? In support of
a claim for military law autonomy is the strong
argument that the ethos, tasks and obligations of
Georges Prugh, The Exercise of Military Jurisdiction
in Periods of Military Stress. De La Justice Militaire,
Recueils de la Societe, Internationale de Droit
penal Militaire et de La Guerre, VIII, Volume 1.
Brussels, 1981.
the armed forces are unique and that the legal
system should therefore reflect this. Whether the
core values identified by the services, which
include moral integrity, loyalty, honesty, mutual
H.W. Arthurs, 'Special Courts, Special Law: Legal
Pluralism in l9th Century England', in G.R. Rubin
and D. Sugarman (Eds), Law, Economy and Society:
Essays in the History of English Law, 1750-1914
(Abingdon: Professional Books, 1984)
support, self- discipline and group identification
(which are contrasted with the pursuit of
individual advantage), are the sole preserve of
members of the armed forces may be debatable.28
Jennifer K. Elsea, Evolving Military Justice, Edited
by Eugene R. Fidellv and Dwight H Sullivan, Naval
Institute press, Annapolis, httindak pidanas:?
international,westlaw.com/result/
documrnttext.aspx? blinkedcite,2003.
References
Alfonso Reyes Echandia, Legislacion y Seguridad
Nacional en America Latina, in the Magazine 6 de
November No,2, Bogota, June, 1986.
John Gillissen,Evolution, Actuelle de la Justice
Militaire, Rapport General in Huiteme Congress
International, Ankara, 11-15 October, 1979
,L’evolution Actuelle de la Justiece Militaire,
Recuils de la Societe International de Droit Penal
Militaire et de Droit de la Guerre,VIII, Volume I
Brussels, 1981.
Article 138 of the Constitution of the Federal
Republic of Yugoslavia.
John C. Ries and Owen S. Nibley Justice, Juries, and
Military Dependents Author(s): Source: The
Western Political Quarterly, Vol. 15, No. 3 (Sep.,
1962), Published by: University of Utah on behalf
of the Western Political Science Association Stable
27
Fransisco Jimenez.Op.Cit.p.46.
G. R. Rubin ,United Kingdom Military Law
Autonomy, Civilianization, Juridification
Author(s): Source: The Modern Law Review, Vol.
65, No. 1 (Jan., 2002) Published by: Blackwell
Publishing on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1097516
Accessed: 26/11/2009 23:26 .
28
[15]
URL:
http://www.jstor.org/stable/445034
Accessed: 12/11/2009 18:24.
Major Joshua M. Toman, Headquarters,
Department of the Army, Washington, D.C.
Mark. J. Osiel, Obeying Orders, Atrocities, Military
Discipline& the Law of War ( New Brunswick (USA)
and London (UK): transaction Publisher, 1998.
Military Jurisdiction Seminar,10-14 October ,2001
at Rhodos-Report, on the web page of the
International Society for Military Law and the Law
of
war:
http://www.soc-mil-
law.org/seminar%20Rhodos%20Report.htm.Pamp
hlet No. 27-100-195, Spring 2008, Military Law
Review-Volume 195.
Resolution 1994/67,
Paragraph 2.
Civil
Defence
Forces,
[16]