Court-martial

The field court martial of the Finnish 15th Brigade in July 1944.

A court-martial (plural courts-martial) is a military court. These military courts can determine punishments for members of the military subject to military law who are found guilty or may dismiss the charges based on the evidence and the case presented. Virtually all militaries maintain a court-martial system to try cases in which a breakdown of military discipline may have occurred. In addition, courts-martial may be used to try enemy prisoners of war for war crimes. The Geneva Convention requires that POWs who are on trial for war crimes be subject to the same procedures as would be the holding army's own soldiers. Additionally, most navies have a standard court martial which convenes whenever a ship is lost; this does not necessarily mean that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship would be made part of the official record. Many ship captains will actually insist on a court-martial in such circumstances.

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Make up of a court-martial

A panel of officers sit in judgment at a court martial, while the accused person is usually represented by an officer who may be a military lawyer.

Crimes punishable by a court-martial

Courts martial have the authority to try a wide range of military offences, many of which closely resemble civilian crimes like fraud, theft or perjury. Others, like cowardice, desertion, and insubordination are purely military crimes. Punishments for military offences ranged from fines and imprisonment to execution. Military offences are defined in the British Army Act for members of the British Military and the Canadian Armed Forces. For members of the United States they are covered under the Uniform Code of Military Justice (UCMJ). These offences, their corresponding punishments and instructions on how to run a court martial, are explained in detail based on each country and/or service.

Courts-martial in India

Indian Army has four kinds of Court Martial - General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). According to the Army act, army courts can try personnel for all kinds of offences except for murder and rape of a civilian, which are primarily tried by a civilian court.

Courts-martial in the United Kingdom

Summary offences are dealt with by the accused's commanding officer who acts as a magistrate. The accused may be admonished, reprimanded, fined, denied pay, have his/her privileges restricted or be detained for up to one month if convicted. They may also refer serious cases to court martial, if it warrants it.

Serious offences are considered by a court-martial. The courts also consider cases when the accused is an officer or holds rank above that of his commanding officer, or when the accused demands such a trial. Prosecution is controlled not by the military, but by the Service Prosecuting Authority, which is independent of the chain of command. The defendant's lawyer, furthermore, may be a civilian, and costs may be borne by the military.

There are two types of courts-martial: the District Court-Martial (DCM) which may punish the accused with up to two years imprisonment, and the General Court-Martial (GCM) which may punish the accused with up to life imprisonment if the offence is serious enough.

The District Court-Martial is composed of three members and the General Court-Martial of five members; in each case, one member is designated the President. The members may be warrant officers or commissioned officers. The members of the court judge the facts of the case, like a jury and, after conviction, vote on sentence along with the judge advocate.

They may also determine the sentence, but in the civilian courts, that power is granted only to the judge. The court is presided over by a Judge Advocate who is a civilian. The present Judge-Advocate General is a Circuit Judge and the other full-time Judge Advocates are Barristers or Solicitors appointed by the Lord Chancellor. There is a number of barristers and solicitors in private practice, who serve as Judge Advocates only on a part time basis. This is like a District Judge in the Magistrates Court/Recorder in the Crown Court. The presiding judge may instruct the members of the Court on questions of law and sentencing.

The jurisdiction of the District Court-Martial is sui generis and spans that of the Magistrates Court and the Crown Court.

Appeal lies to the Courts-Martial Appeals Court, which may overturn a conviction or reduce a sentence. Thereafter, appeal lies to the highest court of the United Kingdom, the House of Lords (the case, like all others before the House, is only heard by a committee of judges known as Law Lords).

Officers convicted at a Court-Martial can be dismissed, with especially serious offenders dismissed in disgrace and banned from serving Her Majesty in any capacity for life.This includes service as a policeman, postman, attorney, or any other position either in the civil service or requiring an official appointment. They may also be barred from certain professions, such as law (anybody convicted of a crime cannot practice as a lawyer). In some cases, they may also be barred from going into medicine, teaching, nursing, social work (especially in the case of sex offences and/or those against children) or working for certain contractors to the government.

During World War I there were a further two Courts-Martial. The Regimental Court-Martial (RCM), which rarely sat, and the Field General Court-Martial (FGCM). The FGCM consisted of three officers, one of them normally a Major who acted as president.

There are currently no limits on sentence durations within the military, although it is generally followed that imprisonment should not exceed the limits set by a civilian court dealing with the same crime. However, significant changes to the system will be introduced after the passage of the Armed Forces Act 2006.

Capital punishment

There is no capital punishment in the military. Prior to its complete abolition in 1998, it was available for six offences: Serious Misconduct in Action, Communicating with the Enemy, Aiding the Enemy or Furnishing Supplies, Obstructing Operations or Giving False Air Signals, Mutiny and Incitement to Mutiny or Failure to Suppress a Mutiny, but was never used after the general abolition of the death penalty, in 1965. See also Capital punishment in the United Kingdom.

Courts-martial in the United States

Main article: Courts-martial in the United States

The Uniform Code of Military Justice (UCMJ) defines military offenses and trial procedures for courts-martial.

As in all United States criminal courts, courts-martial are adversarial proceedings. Military lawyers of the Judge Advocate General's Corps (JAG) representing the government and appointed military lawyers representing the accused present and argue relevant facts, legal aspects, and theories before a military judge. The accused can also hire civilian representation at their own expense.

The lawyers must follow military rules of procedure and evidence as allowed by the presiding judge. During these trial proceedings, the military judge decides questions of law. In non-capital cases, the accused may request to be tried by the military judge alone or by a jury, however, discretion in granting such request lies with the military judge. A court-martial jury is called a panel of members. This panel decides questions of fact as allowed by law, unless the accused chooses to be tried by judge alone, in which case the judge will resolve questions of law and questions of fact. Both the court-martial members and the military judge are members of the armed forces. Members of a court-martial are commissioned officers, unless the accused is a warrant officer or enlisted member and requests that the membership reflect their position by including warrant or enlisted members. Only a court-martial can determine innocence or guilt.

After the American Civil War, the only U.S. soldier executed for desertion was Private Eddie Slovik.

Levels of courts-martial

Three levels of courts-martial can be convened depending on the severity of the offense(s): Summary (which can confine junior enlisted to up to 30 days), Special (which, depending on the charges, can confine an accused up to a year and give a bad-conduct discharge to enlisted) and General (which, depending on the charges, can sentence an accused to death or life imprisonment, and give a bad-conduct or dishonorable discharge or a dismissal to officers). Officers are not tried at summary courts-martial and enlisted members have an absolute right to refuse summary court.

Unlike federal courts established under Article III of the U.S. Constitution, a court-martial is established under Article I and does not exist until its creation is ordered by a commanding officer. Such officers are called court-martial convening authorities. The legally operative document that a convening authority uses to create a court-martial is called a court-martial convening order.

General courts-martial require an investigating officer, with at least the rank of captain (naval lieutenant), to hold a hearing to review government evidence which outlines the elements of the alleged crime. These investigations are referred to as Article 32 hearings because they are described in article 32 of the Uniform Code of Military Justice (UCMJ). In the Air Force and Navy the Investigating Officer is usually a JAG officer, in the Army it is usually a non-lawyer. The accused is present and has an attorney to examine evidence and testimony. The Article 32 hearing is a major discovery tool for the defense. The investigating officer then sends the report with recommendations to the convening authority, who may then refer the case for court-martial.

Convening authorities may decide on actions other than court-martial, especially when the government case is weak. The charges may be dismissed or disposed of at a lower level, and include actions such as administrative reprimands, summary courts-martial, nonjudicial punishment, or administrative separation.

Courts-martial have universal jurisdiction over active duty military personnel, subject to the Uniform Code of Military Justice. This means that no matter where a service member is in the world, if they are on active duty, they can be tried by a court-martial. Under new laws to deal with contractors operating abroad with the armed forces, some civilians are also subject to the Uniform Code of Military Justice.

If a service member is court-martialed and they feel that the result was unjust, then the service member can submit their case to the convening authority, which is the officer (usually a general) that originally had the service member court-martialed. This is similar to asking a civilian governor for clemency or a pardon. After clemency requests the service member may submit their case for review to the Court of Criminal Appeal for their branch. See Army Court of Criminal Appeals, Navy-Marine Corps Court of Criminal Appeal, Air Force Court of Criminal Appeals, Coast Guard Court of Criminal Appeals

Cases can be further appealed to the United States Court of Appeals for the Armed Forces and the Supreme Court of the United States.

As the final last resort, the convicted service member can ask for executive clemency also known as a 'reprieve', or a pardon from the President.

See also

Further reading

Notes

  1. ↑ Macomb on Martial Law and Courts Martial as Practiced in the United States.

External links