criminal law

The Oxford Handbook of

CRIMINAL LAW Edited by

MARKUS D. DUBBER and

TATJANA HÖRNLE

1

9780199673599_Hornle_Book.indb 3

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1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2014 The moral rights of the authors‌have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014937266 ISBN 978–0–19–967359–9 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.


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c hapter 15

MILITARY JUSTICE rain liivoja*

i. Introduction to Military Justice “Military justice” and “military law” refer to the imposition of punishment by military authorities, especially military courts or tribunals. Yet military justice does not amount to a distinct model or system of criminal justice. The extent to which military courts are used—to say nothing of their composition, jurisdiction, and procedure—differs markedly from state to state. Even common law countries, which share certain traditions of British military law, have become quite diverse in their contemporary practices. Moreover, military justice does not have a singular function, rationale, or aim. It serves different purposes in different contexts. First and foremost, many states rely on a military justice system to try and punish service members for misconduct that undermines discipline in the armed forces. Secondly, during armed conflicts, states have also empowered military courts to deal with offenses committed by enemy belligerents and by residents of territories under military occupation. Finally, states sometimes set up military courts to try persons with no association to their armed forces for offenses against the security of the state or, in circumstances of a public emergency, an even wider range of offenses. This chapter addresses each of these three circumstances separately in Sections III, IV, and V but places the emphasis on the first—the most common one. * I am grateful to Matthew Groves and Alison Duxbury for their helpful comments on an earlier draft. The responsibility for the present text, however, is mine alone.


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military justice 327

ii. Due Process and Military Justice Much of the contemporary discussion of military justice as a phenomenon revolves around its compatibility with due process guarantees of international law.1 The prevalence of this paradigm can be seen as one indicator of the general increase of civilian oversight of the armed forces and in particular the subjection of the military to more civilian standards of (judicial) scrutiny.2 There has been much debate about whether proceedings before a military court can meet the standard of a “fair and public hearing by a competent, independent and impartial tribunal established by law,” as required by the International Covenant on Civil and Political Rights (ICCPR) and regional human rights treaties.3 Human rights treaty bodies have often been skeptical about military courts living up to that standard, perhaps partly as a result of applying the test of independence and impartiality more stringently to military courts than to civilian courts.4 Treaty bodies have been particularly critical about the trial of civilians before military courts, which raises the awkward question whether—and, if so, why—the independence and impartiality assessment changes depending upon whether the accused is a service member or a civilian.5 However, the insufficiently articulated concern of human rights treaty bodies in this respect appears to be that trying certain civilians before military courts—even if those courts meet the due process requirements—discriminates against them compared to other civilians.6 Furthermore, human rights treaties recognize the right to liberty and security of person, which includes the right to be “brought promptly before a judge or other officer authorized by law to exercise judicial power” in the event of an arrest or detention on a criminal charge.7 This raises the further problem as to whether a military authority could validly authorize the deprivation of liberty. 1 See generally Jeanine Bucherer, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires Verfahren (2005); Peter Rowe, The Impact of Human Rights Law on Armed Forces (2006), ch. 3; Ian Leigh and Hans Born, Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel (2008), ch. 21. 2 See e.g. Gerry R. Rubin, “United Kingdom Military Law: Autonomy, Civilianisation, Juridification,” (2002) 65 Modern LR 36 ff. 3 International Covenant on Civil and Political Rights (Dec. 16, 1966) 999 UNTS 171 (ICCPR), Art. 14(1); cf. Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950) 213 UNTS 222 (ECHR), Art. 6(1); American Convention on Human Rights (Nov. 22, 1969) 1144 UNTS 123 (AmCHR), Art. 8(1); African Charter on Human and Peoples’ Rights (June 27, 1981) 1520 UNTS 217, Art. 7(1); Arab Charter on Human Rights (May 22, 2004) (ArabCHR), Art. 13(1). 4 With respect to the European Court of Human Rights, see Ann Lyon, “Two Swords and Two 5 Standards,” [2005] Crim. LR 850 ff. Rowe (n. 1) 100. 6 Rain Liivoja, “Trying Civilian Contractors in Military Courts: A Necessary Evil?,” in Alison Duxbury and Matthew Groves (eds.), Military Justice in the Modern Age (forthcoming), and sources cited therein. 7 ICCPR, Art. 9(3); cf. ECHR, Art. 5(3); AmCHR, Art. 7(5); ArabCHR, Art. 14(5).


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328 rain liivoja Admittedly, military justice has organizational and procedural peculiarities that can be difficult to reconcile fully with due process safeguards arising from human rights law. This is demonstrated by the fact that a number of states have entered reservations with respect to the relevant provisions of human rights treaties to cover aspects of military justice.8 Even absent a reservation, provisions relating to due process in most human rights treaties can be derogated from “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,”9 such as an armed conflict or large-scale civil unrest. However, measures of derogation are valid only to the extent that they “are not inconsistent with [the derogating state’s] other obligations under international law.”10 The law of armed conflict requires, quite independently of human right law, that individuals be tried by impartial and regularly constituted courts respecting the generally recognized principles of regular judicial procedure.11 As a result, many due process rights under human rights law become non-derogable in times of conflict as a result of the law of armed conflict. While military justice is usually examined in its particular constitutional setting, human rights law and the law of armed conflict provide a lens for examining the phenomenon in a comparative way. Hence, this chapter aims to situate contempor ary practices of military justice in their international law context.

iii. Military Discipline and Military Justice . Military discipline and the law The principal function of the armed forces in a democratic society is to ensure the defense of the nation. This task is a collective one: the effectiveness of the military hinges on the well-coordinated functioning of its component parts. Achieving this

See Rowe (n. 1) 78, 90. ICCPR, Art. 4(1); cf. ECHR, Art. 15(1); AmCHR, Art. 27(1); ArabCHR, Art. 4(1). 10 ICCPR, Art. 4(1); cf. ECHR, Art. 15(1); AmCHR, Art. 27(1); ArabCHR, Art. 4(1). 11 See Geneva Conventions (Aug. 12, 1949) 75 UNTS 31, 85, 135 and 287, Common Art. 3; Protocol Additional (I) Relating to the Protection of Victims of International Armed Conflicts (June 8, 1977) 1125 UNTS 3 (API), Art. 75(4); Protocol Additional (II) Relating to the Protection of Victims of Non-International Armed Conflicts (June 8, 1977) 1125 UNTS 609 (APII), Art. 6(2); International Committee of the Red Cross, Customary International Humanitarian Law (online database) at: (CIHL), rule 100 and commentary thereto. 8

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military justice 329 coordination depends on the maintenance of good order and a high degree of discipline among the members of the forces. Moreover, service members are—not to put too fine a point on it—trained to kill people and break things, and they have at their disposal weaponry and heavy equipment to apply such training in practice. With a lack of discipline, the military could become not only ineffective in defending a nation, but a threat to that very nation. As a learned judge once noted, “there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army.”12 Military discipline can be enhanced in a number of ways. In the first instance, it is engrained through training, personal example, encouragement, direction, guidance, and supervision.13 For addressing lapses of discipline, there are various non-punitive corrective mechanisms, such as counseling, admonition, additional instruction, administrative withholding of privileges, non-recommendation for awards and promotions, and so on.14 However, formal legal processes have an important role to play, especially as regards particularly serious transgressions against the expected standards of good order and discipline.15 One might well say that the armed forces could not properly discharge their function without a formal, legally enforceable code of discipline.16 Be that as it may, international law expressly requires the “armed forces of a Party to a conflict” to be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”17 Breaches of the code of discipline may entail disciplinary or criminal liability. This division is based on the relative gravity of the transgressions: disciplinary offenses are comparatively minor ones, whereas criminal offenses, as the label suggests, are comparable in severity to offenses proscribed by general criminal law. To reflect this distinction and to provide for different procedures for addressing offenses of different gravity, many states have enumerated military disciplinary offenses and military criminal offenses in separate legal instruments—effectively splitting the code of discipline into two.18 In other states, the code of discipline is contained in a single legal instrument, making the disciplinary–criminal divide more theoretical.19 Grant v. Sir Charles Gould (1792) 126 E.R. 432, 451 (Lord Loughborough). Robert Edwards, “Discipline,” in Bernd Horn and Robert W. Walker (eds.), The Military Leadership Handbook (2008), 228 ff. 14 See Rules for Courts-Martial (United States), rule 306(c)(2); Rowe (n. 1) 70–72. 15 See Jeff Blackett, Rant on the Court Martial and Service Law (3rd ed., 2009), ch. 1. 16 17 See R. v. MacKay [1978] 1 F.C. 233, para. 6 (Cattanach, J.). API, Art. 43(1). 18 See e.g Wehrstrafgesetz (Military Criminal Code), Mar. 30, 1957 (WStG), and Wehrdisziplinarordnung (Military Disciplinary Code), Aug. 16, 2001 (WDO) (Germany); Wetboek van Militair Strafrecht (Military Criminal Code), Apr. 27, 1903, and Wet militair tuchtrecht (Military Discipline Code), June 14, 1990 (the Netherlands). 19 See e.g. Defence Force Discipline Act 1982 (Australia) (DFDA); National Defence Act 1985 (Canada) (NDA); Armed Forces Act 2006 (United Kingdom) (AFA); Uniform Code of Military Justice, May 5, 1950 (United States) (UCMJ). In Finland, offenses are codified in a single Act, see Rikoslaki (Criminal Code), Dec. 19, 1889, ch. 45, but they can be dealt with by means of two different 12 13


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330 rain liivoja In any event, given the severity of the punishments that may be applicable to disciplinary offenses in a military context, the distinction is often more apparent than real. Courts have refused to take the label “disciplinary” at face value, holding that ostensibly disciplinary offenses with serious sanctions such as detention are capable of triggering due process safeguards appropriate for criminal proceedings.20 The unclear boundary between disciplinary and criminal liability sets military discipline apart from other types of professional discipline. Many professions— including law, medicine, and accounting—have codes of conduct enforced by professional bodies. However, such bodies administer disciplinary sanctions outside the penal law framework and such reprimands remain distinct from any punishment that may, for the same act of professional misconduct, be imposed by the state as a matter of criminal law. In the military context, however, the disciplinary system blends into the regular criminal justice system or replaces it altogether. The military code of discipline as a whole is typically enforced by a combin ation of judicial and non-judicial measures. Non-judicial measures entail the authority of military commanders to impose punishment for disciplinary offenses and sometimes minor criminal offenses without a formal trial. This leaves more serious offenses to be dealt with by the judicial system. And the nature of the judicial procedure applicable to serious offenses committed by service members is in many ways the hallmark of a given military justice system.

2. Substantive law Before discussing questions of procedure, it may be useful to highlight some of the substantive penal law issues involved in military justice, which are relevant irrespective of the particular procedural model chosen.

a) Military offenses Considerations of military discipline have given rise to what are often called “purely military offenses” or “military-specific offenses,” that is to say, offenses that have no civilian equivalent and are thus unique to the military. Such offenses may be defined in a separate military criminal code or military disciplinary code, or in a subdivision of the general penal code. On closer inspection, such offenses fall into two categories. First of all, certain offenses are proscribed solely with military discipline (or, more broadly, the security of the state) in mind and injure no other interest generally procedures, see respectively Sotilasoikeudenkäyntilaki (Code of Military Judicial Procedure), Mar. 25, 1983; Sotilaskurinpitolaki (Code of Military Discipline), Mar. 25, 1983. See Engel and others v. Netherlands, App. nos. 5100/71, 5101/71, 5102/71, 5354/72, and 5370/72, ECtHR, Judgment of 8 June 1976 [1976] 1 EHRR 647; R. v. Wigglesworth [1987] 2 SCR 541, 559. 20


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military justice 331 protected by penal law. Such offenses include absence without leave,21 desertion (absence without leave with the intention to be absent permanently or to avoid hazardous duty, such as taking part in hostilities);22 failure to obey a lawful order;23 insubordination (disrespectful conduct toward superiors);24 mutiny (collective acts to overthrow or resist authority);25 neglect of duty;26 malingering (causing oneself an injury, or aggravating an existing injury, to avoid service);27 unlawful disclosure of information;28 assisting an enemy;29 and other forms of misconduct particular to the conduct of military operations.30 The second group of offenses is concerned primarily, but not exclusively, with military discipline. Here the conduct does meet the definition of some civilian offense but its effect on military discipline is such as to amplify its seriousness. For example, in a military context, it is insufficient to regard a physical attack on a superior as garden-variety assault. Given how seriously it undermines military authority and jeopardizes discipline, such conduct typically constitutes a distinct aggravated form of insubordination.31 Other offenses in this category include the maltreatment of subordinates;32 certain offenses against military or public property;33 looting (taking property that is left exposed or unprotected in the course of military operations);34 offenses relating to the operation or safety of military vehicles, aircraft, and vessels;35 unlawful use of weapons;36 and offenses relating to alcohol and controlled substances in the military.37 A commonplace feature of the code of discipline is a catch-all provision, known as the “general article” or the “devil’s article,” which makes it an offense to engage in unspecified conduct—not necessarily meeting the definition of any other offense, military or civilian—which prejudices military discipline or brings discredit upon the armed forces.38 These types of provisions, while inimical to ordinary criminal

UCMJ, Art. 86; AFA, section 9; § 15 WStG. UCMJ, Art. 85; AFA, sections 8–10; § 16 WStG. 23 UCMJ, Art. 92; AFA, sections 12–13; §§ 19, 22 WStG. 24 UCMJ, Arts. 89–91; AFA, section 11(2); §§ 20, 23–25 WStG. 25 UCMJ, Art. 94; AFA, section 6. 26 AFA, section 15; see also UCMJ, Art. 113; AFA, section 2(4) (neglect of guard duty); UCMJ, Art. 107; AFA, section 18; § 42 WStG (making false reports). 27 UCMJ, Art. 115; AFA § 16; § 15 WStG. 28 UCMJ, Art. 106a; AFA, section 17. 29 30 UCMJ, Art. 104; AFA, section 1. UCMJ, Arts. 99–103, 105; AFA, sections 2–3, 5. 31 UCMJ, Arts. 89–91; AFA, section 11(1); §§ 20, 23–25 WStG. 32 UCMJ, Art. 93; AFA, section 22; §§ 30–32 WStG. 33 UCMJ, Arts. 108–109; AFA, sections 24–26. 34 UCMJ, Art. 103(b)(3); AFA, section 4. 35 36 UCMJ, Arts. 110, 111; AFA, sections 31–38. § 46 WStG. 37 UCMJ, Arts. 112, 112a; AFA, section 20. 38 UCMJ, Art. 134; AFA, section 19. See also D. B. Nichols, “The Devil’s Article,” (1963) 22 Military LR 111 ff.; James K. Gaynor, “Prejudicial and Discreditable Military Conduct: A Critical Appraisal of the General Article,” (1971) 22 Hastings LJ 259 ff.; Matthew Groves, “The Use of Civilian Law Principles in Military Discipline,” (1997) 23 Monash University LR 456 ff. See also UCMJ, Art. 133 (conduct unbecoming an officer and a gentleman). 21

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332 rain liivoja justice because of their vagueness, have been tolerated in the military context because they can be interpreted in light of the traditions of the armed forces and the prevailing military culture.39 Thus, general articles incorporate into the law, and attach punishments to the violation of, extra-legal standards of honorable military conduct.40

b) Ambit of the law 41 All of the offenses just mentioned are what in German parlance are known as Sonderdelikte—they can only be committed by a limited range of individuals. These individuals include service members first and foremost but, in some states and under some circumstances, also civilians who have a particularly close connection to the armed forces (civilian employees, contractors, etc.).42 Thus, the personal applicability of military law tends to be fairly narrowly circumscribed. The opposite is true, however, when it comes to the territorial or geograph ical applicability of the law. The penal law of a state—including both the law that defines military offenses as well as ordinary criminal law—often has very extensive extraterritorial applicability to service members. With respect to military offenses, the reason is quite clear: the maintenance of military discipline is as important on overseas deployments as it is at home. With respect to the broad extraterritorial applicability of general criminal law to service members, two reasons in particular stand out. First, when in the territory of another state, service members often have at least some degree of immunity from the local legal system, either by virtue of the law of armed conflict or as a result of a treaty arrangement between their home state and the territorial state. Secondly, common crimes committed by service members have—at least under some circumstances—implications for military discipline and potentially engage the international responsibility of the home state. As a result, it is recognized that there must remain the residual possibility of proceedings against service members under the home state’s law if they commit some common crime abroad for which they cannot be brought to justice locally. In states where military offenses are contained in the civilian penal code, the extraterritorial application of all penal law to service members abroad can be achieved simply by having a special jurisdictional provision in that code.43 In states See e.g. U.S. v. van Steenwyk, 21 M.J. 795 (Navy–Marine Corps Court of Military Review, 1985); Parker v. Levy, 417 U.S. 733 (1974). 40 See Rain Liivoja, “Law and Honour: Normative Pluralism in the Regulation of Military Conduct,” in Jan Klabbers and Touko Piiparinen (eds.), Normative Pluralism and International Law: Exploring Global Governance (2013), 143 ff. 41 This section draws upon Rain Liivoja, Extraterritorial Criminal Jurisdiction over the Armed Forces (forthcoming). See also Rain Liivoja, “Service Jurisdiction in International Law,” (2010) 11 Melbourne 42 Journal of International Law 309 ff. See UCMJ, Art. 2; AFA, sections 367–371A. 43 See e.g. Karistusseadustik (Penal Code), June 6, 2001 (Estonia), § 7(2)(1); Уголовный кодекс (Criminal Code), June 13, 1996 (Russia), § 12(2). 39


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military justice 333 with a military criminal code, the arrangement tends to be more complex: first, the military criminal code is given broad extraterritorial application with respect to the individuals subject to it;44 then, any conduct that would violate civilian criminal law if committed within the territory of that state is made an offense against the military criminal code.45 This arrangement effectively incorporates civilian criminal law into military criminal law, thereby making it applicable to service members abroad. There is, of course, nothing exceptional about a state extending the applicability of its criminal law to offenses abroad, especially when it comes to the conduct of the nationals of that state. However, two points bear noting here. First, states that do not routinely and extensively apply their penal law to their nationals abroad often do so with respect to their service members. Secondly, many states that restrict the applicability of their penal law to the conduct of nationals abroad by reference to the seriousness of the offense or the double criminality rule do not apply such restrictions when it comes to the conduct of service members. Thus, the applicability of penal law to service members abroad is uniquely expansive. Contrary to popular belief, war crimes are not distinctly military offenses. War crimes are serious violations of the law of armed conflict to which international law attaches individual criminal responsibility.46 Such acts can be perpetrated by anyone.47 Accordingly, the definitions of war crimes are often not part of the code of discipline but the general penal law applicable to service members and civilians alike and contained in special legislation addressing international crimes48 or in the civilian penal code.49

c) Military defenses The applicability of general penal law to service members raises the question as to whether distinctly military defenses exist to accommodate the requirements of military discipline, especially on operations. Much of the discussion of this point has, at least since World War I, focused on the possibility of an order of a military superior exempting a subordinate from responsibility when carrying out the order. This issue is particularly thorny because service members commonly have a legal obligation to carry out orders and may be punished for failing to do so.50

See e.g. UCMJ, Art. 5; DFDA, section 9. See e.g. AFA, section 42; DFDA, section 61; cf. UCMJ, Arts. 118–131 (defining a number of civilian offenses expressly) and 134 (incorporating by reference other “crimes and offenses not capital” under 46 U.S. law). See CIHL (n. 11), rule 156. 47 There are numerous examples of civilians convicted of war crimes. See e.g. In re Tesch et al. (Zyklon B Case) (1946) 1 LRTWC 93 (British Military Court at Hamburg). 48 War Crimes Act of 1996, codified at 18 USC § 2441; see also 18 USC § 2442; International Criminal Court Act 2001 (United Kingdom), especially sections 50, 51, 58; Völkerstrafgesetzbuch (Code of Crimes against International Law), June 26, 2002 (Germany), §§ 8–12. 49 Criminal Code, Schedule 1 to the Criminal Code Act 1995 (Australia), sections 268.24–268.101. 50 See n. 23. 44 45


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334 rain liivoja With respect to the most serious international crimes, the charters of the post-World War II international military tribunals as well as the statutes of the contemporary ad hoc tribunals, have excluded such a defense entirely.51 The Rome Statute, however, adopts a more nuanced approach, allowing the defense of superior orders with respect to war crimes, provided that the person was under a legal obligation to carry out the order, the person did not know that the order was unlawful, and the order was not manifestly unlawful.52 Construed in this way, the defense of superior orders becomes akin to an unavoidable mistake of law in the sense that the order leads the subordinate mistakenly to believe that she was obliged to do something that was actually unlawful. In any event, from this perspective superior orders constitute an excuse, not a justification: orders do not render the conduct lawful, they only exempt the individual from criminal liability in limited circumstances. Yet the problem of military defenses also presents itself with respect to ordinary offenses—common crimes that do not rise to the level of violations of international law. Could superior orders or membership in the armed forces in some cases act as a justification and make lawful something that ordinarily would be unlawful? This issue has not been extensively discussed but can have considerable practical import ance. By engaging in lawful acts of war, service members may engage in conduct that meets the definition of a criminal offense (e.g. killing an enemy combatant would normally satisfy all the elements of the crime of murder). The same may be the case where service members participate in a peacekeeping operation that has been given a mandate under Chapter VII of the UN Charter to use “any necessary means.” While the prudent exercise of prosecutorial discretion would normally preclude any actual prosecution of a service member who complied with the relevant rules of international law, the criminal law of some states contains a “public duty” or “lawful authority” defense that applies to service members53 and in other states it may be possible directly to invoke rules of international law as a defense.54

3. Procedure a) Summary proceedings A recurring feature or theme of military justice is the significant role of the commander. In fact, much of the historical development of military justice can be seen Charter of the International Military Tribunal (Aug. 8, 1945) 82 UNTS 279, Art. 8; Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827 (May 25, 1993), Art. 7(4). 52 Rome Statute of the International Criminal Court (July 17, 1998) 2187 UNTS 90, Art. 33. 53 See U.S. Model Penal Code, § 3.03(1)(d) (“conduct is justifiable when it is required or authorized by . . . the law governing the armed services or the lawful conduct of war”). 54 Grundgesetz (Basic Law), 23 May 1949 (Germany), Art. 25 (general rules of international law take precedence over legislation and directly create rights for individuals); Penal Code (Estonia), section 27 (unlawfulness of an act may be precluded, inter alia, by treaty or customary international law). 51


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military justice 335 as the gradual narrowing of the commander’s authority to impose punishment “summarily,” that is to say, without a regular trial.55 Important and far-reaching procedural restrictions have been put in place over centuries, leading to the development of elaborate military justice systems and in some states the transfer of some of the disciplinary punitive power to civilian authorities. However, most armed forces retain the direct authority of the commander to impose “non-judicial punishment” in what are referred to as “summary” proceedings. Such proceedings are limited to comparatively petty infractions, especially those that have a purely disciplinary character56 and, in some states, also those that amount to minor criminal offenses.57 Summary proceedings entail a hearing before a more senior service member who not only decides what charges to bring but, acting as a trier of fact and law, determines whether a charge has been proven, and, if it has, awards punishment.58 Summary proceedings are thus essentially simple inquisitorial processes—in contrast to the adversarial process that may be applicable in judicial proceedings.59 The accused is usually not entitled to be represented by counsel but may be permitted to appear with an “assisting officer.”60 The range of punishments available to the commander tends to be fairly restricted, being generally limited to admonitions or reprimands, fines or forfeitures of pay, extra duties, and limited reductions in rank, seniority, or pay grade.61 In many instances, the expedited nature of summary proceedings and the reduced sentencing options make such proceedings attractive for the accused as a way of getting the matter “over and done with.” From a human rights perspective, however, the possibility of a commander—a non-judicial authority—imposing restrictions on liberty as summary punishment has proven controversial.62 The European Court of Human Rights has conceded that “A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.”63 But it has also found that guarantees of judicial review apply where the penalty or measure “takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces.”64 For example, while refusing to regard as detention the confinement of service members, during off-duty hours, to military premises without keeping See Liivoja (n. 41). Wehrbeschwerdeordnung (Military Complaints Regulations), Dec. 23, 1956 (Germany). 57 AFA, sections 53–54, Schedule 1; UCMJ, Arts. 15, 20. 58 AFA, section 131; UCMJ, Art. 15 (non-judicial punishment). 59 U.K. Ministry of Defence, JSP 830—Manual of Service Law: Version 2.0 (Jan. 31, 2011), ch. 9, para. 3; Rules for Courts-Martial (United States), rule 1301(b). 60 The Armed Forces (Summary Hearing and Activation of Suspended Sentences of Service Detention) Rules 2009 (United Kingdom), rule 10. 61 AFA, section 131; UCMJ Art. 15(b)–(c); §§ 22–26 WBO. 62 See e.g. Bell v. U.K., App. no. 41534/98, ECtHR, Judgment of 16 Jan. 2007. 63 64 Engel (n. 20) para. 59. Engel (n. 20) para. 59. 55

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336 rain liivoja them “under lock and key,” the Court viewed as detention the placement of service members, by day and by night, in a locked cell, even for a fairly short period.65 Accordingly, in some military justice systems a decision imposing detention has to be reviewed and approved by a judge,66 the service member may elect to be tried by a judicial body instead of summary proceedings,67 and/or the service member may appeal a summary punishment to a judicial body, whether a military or a civilian court.68

b) Judicial proceedings Military offenses that are too serious to be dealt with summarily by the commanding officer must be disposed of judicially. Broadly speaking, the judicial bodies tasked with enforcing military discipline may be: (a) ad hoc military tribunals; (b) permanent military courts; (c) specialized civilian courts; and (d) general civilian courts.69 Ad hoc military tribunals—used, for example, in Australia, Canada, Ireland, Kenya, Singapore, and the United States—generally mean courts-martial, that is to say “panels” of service members, installed for a specific trial.70 While the panel members do not have legal training, they sit with a legally qualified “military judge” or “judge advocate.”71 Thus, in some respects, the court-martial panel resembles a jury. However, the panel is not necessarily made up of the peers of the defendant but often of more senior service members and it can typically convict by simple majority where a civilian jury may require unanimity or qualified majority.72 Traditionally—and in line with the significant role of the commander—the commander makes the decision to bring charges, and appoints the prosecutor and members of the court-martial, in her capacity as the “convening authority.” Subsequent to the trial, the commander also approves or sets aside the decision of the court-martial panel. This approach of construing the military tribunal as a disciplinary tool at the disposal of the commander notably still prevails in the United States.73 However, such a model has attracted criticism precisely due to the significant influence of the commander and the resulting doubts as to the independence and impartiality of panel members. To alleviate these concerns, the commander’s authority in this respect has been significantly reduced in Australia and Canada where the decision to prosecute is now made by an independent Director of

66 Engel (n. 20) paras. 61–63. § 40 WBO. 68 AFA, section 129; UCMJ, Arts. 15(a), 20. AFA, section 141. 69 cf. Arne Willy Dahl, “International Trends in Military Justice” (Global Military Appellate Seminar, Yale Law School, Apr. 1–2, 2011). 70 The exact composition may depend on the seriousness of the alleged offense. See UCMJ, Arts. 16–19; DFDA, sections 114–115. 71 See UCMJ, Art. 16; DFDA, sections 117, 119(1)(a)(iii), 134, 196. 72 73 See DFDA, sections 116, 133; UCMJ, Arts. 25, 52. See UCMJ, Arts. 22–23, 60. 65

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military justice 337 Military Prosecutions74 and the courts-martial is empanelled by a similarly independent authority.75 Despite such improvements, the use of ad hoc military tribunals has also attracted criticism because of the lack of guarantees of independence for the military judge.76 One option for addressing this problem, without doing away with the essentially ad hoc and military nature of the courts-martial, has been to provide tenure for military judges.77 A somewhat more far-reaching option has been to make the military courts permanent. For example, after a substantial reform in the United Kingdom and New Zealand in 2009, both states now have a Court Martial, which, despite its name, is a permanent court.78 In both instances a panel of service members sits with a judge or judge advocate who, with respect to the procedure of appointment and guarantees of independence, compares favorably to a judge in a civilian court.79 Finland and the Netherlands provide examples of systems where the composition of ordinary civilian courts is altered in cases dealing with offenses committed by service members, effectively turning these courts into specialized civilian courts. While a court of first instance in Finland would ordinarily sit with a professional judge as president and three lay judges drawn from the community,80 in military cases there would be a professional judge and two service members; a court of appeal and the Supreme Court would sit with two additional military members.81 In the Netherlands, military cases are concentrated to the Arnhem District Court and Court of Appeal, which have military chambers composed of civilian judges and a military judge.82 Finally, a number of states have opted to deal with military cases in ordinary criminal courts of general jurisdiction. Examples include Austria,83 Denmark,84 Estonia, Germany,85 and Sweden. In view of recent reforms in military justice, the distinction between the different models is becoming blurred. For example, while a Canadian court-martial is nominally an ad hoc military tribunal and the UK Court Martial a permanent military court, they operate quite similarly: the proceedings are presided over by a DFDA, sections 103, 118G–118GR; NDA, sections 164.2, 165, 165.1. DFDA, sections 119–125, 129B, 188F–188FM (Registrar of Military Justice); NDA, sections 165.18– 76 165.192 (Court Martial Administrator). LeBlanc v. The Queen [2011] CMAC 2. 77 Security of Tenure of Military Judges Act 2011 (Canada). 78 AFA, section 154; Court Martial Act 2007 (New Zealand), section 8. 79 AFA, sections 155, 362; Courts-Martial (Appeals) Act 1951, sections 28–35; Court Martial Act 2007 (New Zealand), sections 10–21. 80 Oikeudenkäymiskaari (Code of Judicial Procedure), Jan. 1, 1734 (Finland), ch. 2, § 1. 81 Code of Military Judicial Procedure (Finland), §§ 3, 10. 82 “The Netherlands,” in Stanislas Horvat, Ilja van Hespen, and Veerle van Gijsegem (eds.), International Conference on Military Jurisdiction: Conference Proceedings (2013), 350 ff., 353–355. 83 Austrian Ministry of Defence and Sport, “Austria,” in Horvat (n. 82) 164 ff, 164. 84 See The Danish Military Prosecution Service (2009), 6, available at: . 85 See German Ministry of Defence, “Germany,” in Horvat (n. 82) 270 ff., 273. 74 75


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338 rain liivoja judge whose appointment is permanent and the judgment is made by a panel that is assembled for the specific trial. The difference between a military court and a specialized civilian court is likewise becoming less and less obvious. Generally speaking, a military court is a body composed exclusively or partially of members of the armed forces.86 But in the British system it is possible for the Court Martial to sit with a panel of civilians (generally Ministry of Defence civil servants) where the defendant is a civilian (say, a military contractor). Also, in states that have ad hoc military tribunals, appellate military courts are often made up of civilian judges—the US Court of Appeals for the Armed Forces and the Australian Defence Force Discipline Appeal Tribunal being cases in point. Thus, military courts and tribunals bear the label “military” not necessarily because of their composition or even the procedure of judicial appointment, but because of their position in the legal system and their relationship to the armed forces and ordinary civilian courts.

c) Rationale for a separate military justice system A number of rationales have been given for the existence of a separate system of military justice. First, it has been held that “the military is, by necessity, a specialized society separ ate from civilian society”—owing to the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise”—and that “the military has, again by necessity, developed laws and traditions of its own during its long history.”87 Secondly, emphasis has been placed on the military’s need to “enforce internal discipline effectively and efficiently” in order to maintain “a state of readiness.”88 Thus, “Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct,” and, as a consequence, “Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.”89 Moreover, in the event of a breach of discipline occurring abroad, it may be operationally preferable to deal with the matter “on the spot” rather than return the offending service member to the national territory. Thirdly, the argument has been made that the cases arising in the military are so peculiar that civilian judges (or juries), lacking operational knowledge and experience, are ill-placed to sit in judgment of service members.90 However, none of these considerations appear to be entirely controlling. The idea of the military as a separate society sounds somewhat hollow to the See e.g. Rowe (n. 1) 95. Parker v. Levy, 417 U.S. 733, 743 (1974) (Rehnquist, J.), citing Toth v. Quarles, 350 U.S. 11, 17 (1955). 88 89 R. v. Généreux [1992] 1 SCR 259, 293 (Lamer, C.J.). Généreux (n. 88) 293. 90 Mentioned in Mindia Vashakmadze, Understanding Military Justice: Guidebook (2010), 10. 86 87


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military justice 339 contemporary observer. As for disciplinary needs, many states deem it possible to rely on a combination of summary proceedings for minor offenses and the civilian justice system for serious offenses without any perceived detrimental impact on discipline. Finally, there is no particular reason to think that civilian courts, which are considered entirely capable of handling, say, highly complex medical malpractice cases, would be fundamentally incapable of assessing the propriety of the conduct of service members. I would suggest that two further—and perhaps more pertinent—explanations can be given for the existence of military justice systems at present. First, it is significant that most common law countries have elected to have military courts, whereas within the civil law tradition the situation is much more diverse. One of the reasons is the role of juries as triers of fact in the common law model and the concomitant weight traditionally ascribed to oral evidence and cross-examination of witnesses. Applying these principles in the event of an offense committed abroad leads to significant logistical problems. Military courts that do not have a jury can more easily sit abroad.91 Civil law countries—many of them with investigating judges and the possibility of introducing evidence that has been reduced to writing—experience a significantly reduced need for a distinct “mobile” justice system for the armed forces. Secondly, military courts tend to persist in countries where the armed forces enjoy a particularly significant position in society. The armed forces may hold so much (political) clout that the civil branches of government defer to the military even to the extent of giving it comparative autonomy in matters of discipline and criminal justice. This may at least partly explain the prevalence of military courts in some parts of Eastern Europe, Latin America, and Asia.

d) Jurisdiction In states that have either military courts or specialized civilian courts, delimiting the jurisdiction of such courts can be complicated. While military-specific offenses would fall quite naturally within the purview of the specialized court system, the matter is different when it comes to ordinary criminal offenses committed by service members. In some states, the membership of the accused in the armed forces is sufficient to grant military courts jurisdiction over her offenses that violate general criminal law. This is often called the “service status” test and is, for example, relied upon in the United States.92 In other states, there must be a demonstrable link between the conduct of the individual service member and the discipline of the armed forces in order to sustain the jurisdiction of military courts. This is referred

91 cf. Michael R. Gibson, “International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility While Precluding Impunity,” (2008) 4 Journal of 92 International Law & International Relations 1 ff. Solorio v. US, 483 U.S. 435 (1987).


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340 rain liivoja to as the “service connection” test, which prevails, for example, in Australia93 (where, however, the service connection test has been so loosely applied that in practice the outcome resembles that of the service status test).94 If military courts have jurisdiction over ordinary offenses—however related or unrelated to military service—they inevitably end up competing with civilian courts. At least part of this problem might be resolved by having procedural rules determining the proper judicial forum, for example by making the military trial of particularly serious civilian crimes committed within the territory of the state subject to the consent of the relevant civilian authorities.95 With respect to situations not covered by such rules, the civilian and military authorities may need to engage in ad hoc consultations96 or conclude inter-agency agreements.97

iv. Armed Conflict and Military Justice Military tribunals have been used regularly in times of armed conflict beyond the previously discussed function of maintaining discipline within a state’s own armed forces. This has entailed, in particular, the trial of captured enemy belligerents on the one hand and civilians residing in foreign territories under military control on the other.

1. Trial of enemy belligerents In an international armed conflict, members of the enemy armed forces, members of irregular armed groups under certain conditions, and participants in a levée en masse are entitled to be treated as prisoners of war (PoWs) on capture.98 While this

See Re Tracey, ex p. Ryan [1989] HCA 12, (1989) 166 CLR 518; Re Nolan, ex p. Young [1991] HCA 29, (1991) 172 CLR 460; Re Tyler, ex p. Foley [1994] HCA 25, (1994) 181 CLR 18. 94 See Re Aird, ex p. Alpert [2004] HCA 44, (2004) 220 CLR 308; Andrew D. Mitchell and Tania Voon, “Justice at the Sharp End: Improving Australia’s Military Justice System,” (2005) 28 University of 95 New South Wales LJ 396 ff., 402–416. See e.g. DFDA, section 63. 96 See e.g. U.K. Ministry of Defence, JSP 830—Manual of Service Law, Vol. 1, ch. 1, para. 52. 97 See e.g. Memorandum of Understanding between the Australian DPP and Director of Military Prosecutions, May 22, 2007. 98 Geneva Convention (III) relative to the Treatment of Prisoners of War (Aug. 12, 1949) 75 UNTS 135 (GCIII), Art. 4. 93


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military justice 341 means that they cannot be punished for lawful acts of war, they can be prosecuted for war crimes as well as common crimes committed before or during captivity. The detaining state may exercise penal and disciplinary power over PoWs subject to the “principle of assimilation.”99 In the words of the 1907 Hague Regulations, PoW are “subject to the laws, regulations, and orders in force in the army of the State in whose power they are.”100 The 1929 Geneva Convention on PoWs and the 1949 Geneva Convention III reiterate this principle101 and also spell out its specific aspects, such as the equivalence of punishments,102 and the requirement that PoWs be tried by the same courts and according to the same procedure as members of the armed forces of the detaining state.103 The Conventions also provide for certain minimum procedural rights, such as the right to an effective defense and the right to appeal.104 After World War II, the Tokyo Tribunal and many national courts took the position that, under the 1929 Convention, the principle of assimilation only applied to offenses committed by PoWs while in detention and not to offenses committed prior to capture.105 While this view was probably consistent with the intentions of the drafters of the Convention,106 it led to a peculiar situation where proceedings relating to fairly minor offenses committed in captivity were subject to greater procedural safeguards than trials of war crimes committed before capture.107 Although the French Cour de Cassation changed its mind in 1950 and began applying the relevant provisions of the 1926 Conventions to the trials of war criminals,108 the bulk of post-World War II war crimes trials were held before a motley array of national and quasi-international courts and tribunals that did not necessarily align with the regular disciplinary practices of the armed forces of the Allies. This matter was conclusively resolved, however, by the 1949 Geneva Convention III which expressly provides that PoWs “prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the 99 Jean S. Pictet (ed.), Geneva Convention III Relative to the Treatment of Prisoners of War: Commentary (1960), 406 ff. 100 Hague Regulation respecting the Laws and Customs of War on Land (Oct. 18, 1907) 205 CTS 277 (H.R.), Art. 8(1). 101 Geneva Convention on Prisoners of War (July 27, 1929) 118 LNTS 343 (PoW Convention), Art. 102 45(1); GCIII, Art. 82(1). PoW Convention, Art. 46; GCIII, Arts. 87–88. 103 PoW Convention, Art. 63; GCIII, Art. 102. 104 PoW Convention, Arts. 61–62, 64; GCIII, Arts. 99(3), 105–106. 105 Application of Yamashita, 327 U.S. 1, 22–24 (1946); Johnson v. Eisenträger, 339 U.S. 763, 789–790 (1950); In Wagner (Cour de Cassation, France, July 24, 1946), repr. in 3 LRTWC 23, 42, 50; In re Rauter (Special Court of Cassation, The Netherlands, Jan. 12, 1949), repr. in 14 LRTWC 89, 116–117; U.S. et al. v. Araki et al., 22 Tokyo War Crimes Trial 48413 (International Military Tribunal for the Far East, 1948), 48441–48442 (adopting the conclusion and the reasoning of Yamashita). 106 See Pictet (n. 99) 413. 107 Application of Yamashita, 327 U.S. 1, 74–78 (1946) (Rutledge, J., dissenting) (suggesting that this caused the 1926 Convention to “strain at a gnat and swallow the camel”). 108 Pictet (n. 99) 414; see also, e.g., Re Kahrs (Cour de Cassation, France, Feb. 2, 1955), repr. in 22 ILR 929.


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342 rain liivoja present Convention.” 109 This savings clause made it clear that the Convention’s guarantees apply to the prosecution, trial, and punishment of a PoW for any offense, including a war crime.110 In line with this rule, when General Manuel Noriega was detained by the United States in the wake of the 1989 invasion of Panama and put on trial for drug trafficking, racketeering, and money laundering, the U.S. federal courts accorded him the guarantees stipulated in Geneva Convention III.111 According to Geneva Convention III: A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.112

In light of this provision, read together with the principle of assimilation, states with a military justice system have extended the reach of that system to PoWs, subject to necessary modifications (e.g. the detaining state is unlikely to concern itself with purely disciplinary offenses of PoWs).113 Coming back to General Noriega, U.S. courts made the point that his trial before a civilian court was consistent with Geneva Convention III requirements because a U.S. service member could be tried either by a civilian court or by court-martial for comparable offenses.114 Certain civilians are also entitled to PoW status. They include “Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces” and “Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of inter national law.”115 Despite being civilians, these persons ought to be assimilated in their legal status to members of the armed forces of the detaining state. This may lead to a situation where a military trial of a civilian is not only permitted but actually required by the law of armed conflict. GCIII, Art. 85. For a discussion of this development, see Allan Rosas, The Legal Status of Prisoners of War (1976), 367–375; Geoffrey Best, War and Law since 1945 (1994), 137–138. 111 See U.S. v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990); U.S. v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992). 112 GCIII, Art. 83(1). The Convention also makes it clear that, in any event, the court trying a PoW must offer essential guarantees of independence and impartiality. Ibid., Art. 83(2). 113 See AFA, section 371A (allowing the application of AFA provisions to PoWs by Royal Warrant, subject to modifications contained in the warrant); UCMJ, Art. 2(a)(9) (making the UCMJ applicable to “Prisoners of war in custody of the armed forces”) and Art. 18 (extending general court-martial jurisdiction to “any person who by the law of war is subject to trial by a military”); DFDA, section 7 (making the DFDA applicable to prisoners of war “as if [they] were members of the Defence Force and also defence members” subject to certain modifications made by regulation). 114 115 Noriega (n. 111) 1525–1526. GCIII, Art. 4A(4) and (5). 109 110


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military justice 343 Importantly, unprivileged belligerents—whether civilians taking part in hostil ities, or combatants who have been caught spying or otherwise out of uniform— are not entitled to be treated as PoWs.116 They accordingly do not benefit from the principle of assimilation. They may be tried in a forum and under a procedure different than that applicable in the capturing armed forces.117 However, any such trial would have to take place before an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure spelled out in Art. 75 of Additional Protocol I which is considered reflective of customary law on the point. Also, as PoW status does not exist in non-international armed conflicts, the principle of assimilation is inapplicable. However, with respect to “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,” Common Article 3 of the Geneva Conventions specifically prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”118 In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions created by a Military Order of President George W. Bush119 to try detainees at Guantánamo Bay were in violation of Common Article 3. The Court approvingly cited the International Committee of the Red Cross’s (ICRC’s) Commentary and Customary International Law Study to the effect that “regularly constituted” courts would mean courts “established and organised in accordance with the laws and procedures already in force in a country” and would include “ordinary military courts” and exclude “all special tribunals.”120 In terms of the “judicial guarantees . . . recognized as indispensable,” the Supreme Court mentioned “at least the barest of those trial protections that have been recognized by customary international law,” many of which, as the Court noted, are described in Art. 75 of Additional Protocol I.121 As a consequence, Congress created a statutory basis for the military commissions in 2006 and enhanced the due process rights of the accused in 2009. The compatibility of the new arrangement with Common Article 3 remains unclear.122 See R. R. Baxter, “So-Called ‘Unprivileged Belligerency’: Spies, Guerillas and Saboteurs,” (1951) 28 British Yearbook of International Law 323 ff. 117 Conversely, use by the United States of military commissions to try individuals detained in recent conflicts who qualify for PoW status would be unlawful. Evan J. Wallach, “Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?,” (Nov. 2003) Army Lawyer 18 ff. 118 Geneva Conventions, Common Art. 3(1)(d). 119 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism (Nov. 13, 2001). 120 Hamdan v. Rumsfeld, 548 U.S. 557, 632–633 (per Stevens, J.), 643 (Kennedy, J., concurring) (2006). 121 Hamdan v. Rumsfeld (n. 120) (per Stevens, J.), 643 (Kennedy, J., concurring). 122 For a number of excellent essays on the military commissions, see Fionnuala Ní Aoláin and Oren Gross (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (2013). 116


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2. Trial of civilians in occupied territory Under the law of armed conflict, “Territory is considered occupied when it is actually placed under the authority of the hostile army,” irrespective of whether that army meets any armed resistance.123 Thus, occupation refers to any situation where one state has obtained effective military control of the territory of another state without the latter’s consent. International law presumes occupation to be of a temporary and transitory character: the occupant obtains no title to the territory, merely administering it in accordance with international law, and is supposed to leave a minimal “footprint.” This is reflected in a key provision of the law of occupation in the 1907 Hague Regulations: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and civil life, while respecting, unless absolutely prevented, the laws in force in the country.124

The 1949 Geneva Convention IV clarifies this framework and seeks to ensure that the occupier takes the interests of the inhabitants of the occupied territory more fully into account.125 Convention IV specifies that, subject to certain limited exceptions, “penal laws of the occupied territory shall remain in force” and “the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said law.”126 At the same time, the Convention permits the occupant to enact new penal law to enable it to fulfill its obligations under the law of armed conflict, to maintain the orderly government of the territory, and, importantly, to ensure its own security.127 Local courts, however, are likely to resist the idea of applying the security legislation enacted by the occupying power that would provide, for example, for the punishment of civilians committing acts of sabotage against the occupant. The occupant does not have the authority to extend the jurisdiction of its own ordinary court system to cover the occupied territory.128 To fill this judicial void, Art. 66 of Geneva Convention IV expressly permits the occupying power to “hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country.” Such “occupation courts” have in fact been created in situations of occupation both before and after the entry into force of the 1949 Geneva Conventions. H.R., Art. 42(1); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (Aug. 12, 1949) 75 UNTS 287 (GCIV), Art. 2(2). 124 H.R., Art. 43(1). The phrase “l’ordre et la vie public” appearing in the authentic French text has sometimes been mistranslated as “the public order and safety.” See Edmund H. Schwenk, “Legislative Power of the Military Occupant under Article 43, Hague Regulations,” (1945) 54 Yale LJ 393 ff. 125 See generally Eyal Benvenisti, The International Law of Occupation (2nd ed., 2012), ch. 4. 126 GCIV, Art. 64(1). 127 GCIV, Art. 64(2). See also Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” (2005) 16 European Journal of International Law 661 ff., 668–682. 128 U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (2004), para. 11.59. 123


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military justice 345 The condition incorporated into Art. 66 that occupation courts must be “non-political” seeks to prevent the recurrence of the World War II-era Axis practice of using the judiciary as an instrument of political or racial persecution.129 Thus, this condition reinforces the guarantees of impartiality. The requirement for the courts to be “properly constituted” proves somewhat more challenging to interpret. There is broad agreement that this phrase excludes “all special tribunals”130 and “Special courts set up on an ad hoc basis.”131 The ICRC Commentary suggests, moreover, that “It is the ordinary military courts of the Occupying Power which will be competent.”132 However, in practice, the occupant is more likely to establish occupation courts that are distinct from the justice system that deals with offenses within its armed forces, at least partly because “it is desirable to follow forms of judicial procedure generally similar to the forms to which the native population is accustomed.”133 Thus, for example, during World War II, the United States had set up “military commissions” or “military government courts” in Europe with rules of procedure incorporating “features of Continental Practice.”134 Also, the Israeli occupation courts operating in Palestinian territories are “de-linked from the ordinary military tribunals.”135 Hence, occupation courts tend to be less regular than ordinary courts in that they are created specifically to address a wartime situation. In view of this state practice, the better reading of the words “properly constituted” in this context may be that the courts must have a clear legal basis and a clear process for judicial appointments. As discussed earlier, military courts take different forms, which raises the question as to the possible composition of occupation courts. The ICRC Commentary suggests that “military courts” mean “courts whose members have military status and are subordinate to the military authorities.”136 Thus, one possible interpretation of Art. 66 is that “the judges must be members of the armed forces of the occupying power. In this way, the responsibility of the armed forces for the administration 129 Jean S. Pictet (ed.), Geneva Convention IV relative to the Protection of Civilian Persons in Time of 130 War: Commentary (1958), 340. Pictet (n. 129). 131 Hans-Peter Gasser, “Protection of the Civilian Population,” in Dieter Fleck (ed.), The Handbook of International Humanitarian Law (2nd ed., 2008), 237–323 ff., § 569, commentary para. 2. 132 Pictet (n. 129) 340. 133 Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957), 112–113; see also Morris Greenspan, The Modern Law of Land Warfare (1959), 255. 134 Von Glahn (n. 133) 113. Further on the U.S. courts, see e.g. Eli E. Nobleman, American Military Government Courts in Germany: Their Role in the Democratization of the German People (1950); Worth B. McCauley, “American Courts in Germany: 600,000 Cases Later,” (1954) 40 American Bar Association Journal 1041–1045 ff. 135 Yoram Dinstein, The International Law of Belligerent Occupation (2009), 137. On the operation of these courts, see Sharon Weill, “The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories,” (2007) 89(866) International Review of the Red Cross 395 ff.; Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (2005). 136 Pictet (n. 129) 340.


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346 rain liivoja of the occupied territory and for enforcing the law of occupation is emphasized.”137 Another view is that “The occupation courts may consist of either military or civilian judges, but they must be responsible to the military authorities of the occupying power.”138 Interestingly, after World War II, U.S. occupation courts were eventually transferred under the control of the Department of State. The U.S. Supreme Court took the view that U.S. military control over the courts was retained by the fact that the Department of State reported to the President who is also the Commander in Chief of the U.S. armed forces.139 That occupation courts must sit in occupied territory is connected to the absolute ban on removing civilians from the occupied territory and the requirement for them to be detained—pending determination of guilt and while serving their sentence—in the occupied territory.140 The ICRC Commentary suggests that this need to sit in the occupied territory is indeed one of the reasons why the courts must have a military character,141 suggesting that civilian courts would have greater difficulty doing so. As all of this shows, while the law of armed conflict certainly sets restrictions on the use of military courts in occupied territory, it unambiguously permits the use of such courts by the occupant. Despite the view of some human rights treaty bodies that military courts should be precluded from trying civilians,142 in this respect the law of armed conflict ought to be controlling as lex specialis. In other words, the military nature of the occupation courts and the process of appointing its judges should not be enough to challenge the compatibility of the proceedings before these courts with human rights instruments. However, the law of armed conflict specifies a number of due process guarantees that any occupation courts would have to honor.143 This includes the prohibition of retroactive law144 and the right to a “regular” and “fair” trial that affords all essential judicial guarantees (including the presumption of innocence, the right to be informed of the charges, the right to present evidence, the right to counsel, the right to be present at one’s trial, the right not to incriminate oneself, the right to call and examine witnesses, and ne bis in idem).145 Inasmuch as the existence of these provisions in the law of armed conflict makes it impossible to derogate from the corresponding obligations under human rights law,146 human rights and the law of armed conflict become mutually supportive in this context. Gasser (n. 131) § 569, commentary para. 2. U.K. Ministry of Defence (n. 128) para. 11.59.1; similarly von Glahn (n. 133) 116. 139 140 Madsen v. Kinsella, 343 U.S. 341, 357 (1952). GCIV, Arts. 49(1) and 76(1). 141 142 Pictet (n. 129) 340. See n. 5 and accompanying text. 143 See generally U.K. Ministry of Defence (n. 128) paras. 9.6, 11.60–11.74; Gasser (n. 131) § 570. 144 GCIV, Art. 67; API, Art. 75(4)(c); CIHL (n. 11) rule 101. 145 GCIV, Arts. 71–72; API, Art. 75(4); see also CIHL (n. 11) rule 100. Note, however, that ne bis in idem does not preclude retrial by the local courts. Dinstein (n. 135) 140. 146 cf. Dinstein (n. 135) 143. 137

138


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military justice 347 Some difficulties may arise, however, with regard to the right to appeal of civilians in occupied territory. In this respect, Geneva Convention IV provides that “Courts of appeal shall preferably sit in the occupied country.”147 This provision has to be read in conjunction with another provision of the Convention, which provides that in the absence of courts of appeal, petitions must be addressed to the “competent authority of the Occupying Power.”148 Consequently, the law of armed conflict cannot be interpreted as creating an obligation for courts of appeal to be created,149 Geneva Convention IV merely specifies where such courts—if created—should sit. Human rights law, on the other hand, requires the availability of recourse to a higher judicial body: for example, the ICCPR provides that “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”150 Given that the law of armed conflict does not explicitly authorize the occupant to withhold the right to appeal, it could be argued that the law of armed conflict by itself is incapable of qualifying the right to appeal as it exists under human rights law. However, a derogation from the relevant ICCPR provision is possible and an occupant might need to avail itself of this possibility if it wishes to process appeals non-judicially.

v. Security, States of Emergency, and Military Justice Military justice can play a role in circumstances where, in response to a grave public emergency, a “state of siege” (l’état de siege) has been declared or “martial law” imposed.151 Such a declaration typically entails the (partial) suspension of the normal mode of governance, especially assistance provided to the civilian authorities by the military or, in more extreme versions, the substitution of military authority for certain civilian governmental functions. The latter may include the extension of the competence of military courts to deal with offenses committed by civilians against the security of the state and sometimes even ordinary crimes. Historical examples abound. For example, when martial law was declared in Hawaii in 1941 in GCIV, Art. 66. 148 GCIV, Art. 73. Von Glahn (n. 133) 117; HCJ 87/85 Arjoub v. IDF Commander in Judea and Samaria (1988) 42(1) 150 IsrSC 353, 367–370. ICCPR, Art. 14(5). 151 For a discussion of the different models of emergency powers, see in particular Max Radin, “Martial Law and the State of Siege,” (1942) California LR 634 ff.; Joseph B. Kelly and George A. Pelletier, Jr., “Theories of Emergency Government,” (1966) 11 South Dakota LR 42 ff.; Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006), 17–109. 147

149


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348 rain liivoja the wake of the Japanese attack on Pearl Harbor, jurisdiction over all criminal cases was promptly given to a system of military commissions and courts.152 Whether military courts can lawfully be given such extended jurisdiction in times of emergency depends on the procedure of such courts, the constitutional provisions of the state in question, and, contemporarily, the possibility of derogating from international human rights law obligations. Some states have also sought to establish militarized courts for the trial of particular categories of offenses—especially terrorism-related offenses—without a declared state of emergency. For example, in the 1980s, after a period of military rule, Turkey established a system of State Security Courts to try crimes against the security of the state. Those courts operated with panels of three judges, one of whom was a military officer. The European Court of Human Rights was highly critical of this arrangement holding that the presence of a military judge gave a defendant legitimate cause to doubt the independence and impartiality of the court, amounting to a violation of the European Convention on Human Rights.153 As a result, the State Security Courts were abolished in 2004.

vi. Concluding Remarks The practice of states in relation to military justice is diverse and in something of a flux: numerous states have recently reformed their military justice systems or are contemplating (further) reforms. The trend is clearly toward civilianization: military courts increasingly operate like their civilian counterparts or are abolished altogether.154 This is a welcome development on the assumption that it can be implemented without adversely affecting military discipline. Much of the change in military justice has resulted from the exercise of closer civilian control over the armed forces and the influence of human rights law. Human rights treaty bodies have been skeptical of the independence and impartiality of military courts. Gross misuses of military justice by autocratic regimes in many See e.g. Garner Anthony, “Martial Law in Hawaii,” (1942) 30 California LR 371 ff. Incal v. Turkey, App. no. 22678/93, ECtHR (Grand Chamber), Judgment of 9 June 1998, paras. 72–73. 154 See e.g. Rubin, (2002) 65 Modern LR 36 ff.; Matthew Groves, “The Civilianisation of Australian Military Law,” (2005) 28 University of New South Wales LJ 364 ff.; Stephen I. Vladeck, “The Civilianization of Military Jurisdiction,” in John T. Parry and Song Richardson (eds.), The Constitution and the Future of Criminal Law in America (2013), 287 ff. 152 153


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military justice 349 parts of the world demonstrate155 that these concerns are well founded. However, it is probably erroneous to think that military courts can never be sufficiently independent or impartial to meet human right standards.156

References Andreu-Guzmán, Federico, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations (2004) Blackett, Jeff, Rant on the Court Martial and Service Law (3rd ed., 2010) Bucherer, Jeanine, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires Verfahren gemäß Art. 6 Abs. 1 EMRK, Art. 8 Abs. 1 AMRK und Art. 14 Abs. 1 des UN-Paktes über bürgerliche und politische Rechte (2005) Duxbury, Alison and Groves, Matthew (eds.), Military Justice in the Modern Age (forthcoming) Fidell, Eugene R. and Sullivan, Dwight H. (eds.), Evolving Military Justice (2002) Fidell, Eugene R., Hillman, Elizabeth L., and Sullivan, Dwight H., Military Justice: Cases and Materials (2nd ed., 2012) Fisher, Louis, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (2003) Horvat, Stanislas, van Hespen, Ilja, and van Gijsegem, Veerle (eds.), International Conference on Military Jurisdiction: Conference Proceedings (2013) Liivoja, Rain, Extraterritorial Criminal Jurisdiction over the Armed Forces (forthcoming) Ní Aoláin, Fionnuala, and Gross, Oren (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (2013) Nolte, Georg (ed.), European Military Law Systems (2003) Vashakmadze, Mndia, Understanding Military Justice: Guidebook (2010) Winthrop, William, Military Law and Precedents (2nd ed., 1920)

For a particularly bleak view, see Federico Andreu-Guzmán, Military Jurisdiction and International 156 Law: Military Courts and Gross Human Rights Violations (2004). Rowe (n. 1) 101. 155


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