Court-martial

A court-martial or court martial (plural courts-martial or courts martial, as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment. In addition, courts-martial may be used to try prisoners of war for war crimes. The Geneva Convention requires that POWs who are on trial for war crimes be subject to the same procedures as would be the holding military's own forces. Finally, courts-martial can be convened for other purposes, such as dealing with violations of martial law, and can involve civilian defendants.[1][2]

Most navies have a standard court-martial which convenes whenever a ship is lost; this does not presume that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship be made part of the official record. Most military forces maintain a judicial system that tries defendants for breaches of military discipline. Some countries like France and Germany have no courts-martial in times of peace and use civilian courts instead.[3]

Hyphenation

Court-martial is hyphenated in US usage, whether used as a noun or verb.[4] However, in British usage, a hyphen is used to distinguish between the noun, "court martial", and the verb, "to court-martial".[5]

Composition

Usually, a court-martial takes the form of a trial with a presiding judge, a prosecutor and a defense attorney (all trained lawyers as well as officers). The precise format varies from one country to another and may also depend on the severity of the accusation.

Jurisdiction

Courts-martial have the authority to try a wide range of military offences, many of which closely resemble civilian crimes like fraud, theft or perjury. Others, like cowardice, desertion, and insubordination, are purely military crimes. Military offences are defined in the Armed Forces Act 2006 for members of the British Military. Regulations for the Canadian Forces are found in the Queen's Regulations and Orders as well as the National Defence Act. For members of the United States armed forces offenses are covered under the Uniform Code of Military Justice (UCMJ). These offences, as well as their corresponding punishments and instructions on how to conduct a court-martial, are explained in detail based on each country and/or service.

By country

Canada

In Canada, there is a two-tier military trial system. Summary trials are presided over by superior officers, while more significant matters are heard by courts martial, which are presided over by independent military judges serving under the independent Office of the Chief Military Judge. Appeals are heard by the Court Martial Appeal Court of Canada. Capital punishment in Canada was abolished generally in 1976, and for military offences in 1998. Harold Pringle was the last Canadian soldier executed, in 1945, for a military offence.[6]

Finland

In Finland, the military has jurisdiction over two types of crimes: those that can be committed only by military personnel and those normal crimes by military persons where both the defendant and the victim are military persons or organizations and the crime has been defined in law as falling under military jurisdiction. The former category includes e.g. various types of disobedience and absence without leave, while the latter category includes e.g. murder, assault, theft, fraud and forgery. However, war crimes and sexual crimes are not under military jurisdiction.[7]:§ 2

In crimes where the military has jurisdiction, the military conducts the investigation. In non-trivial cases, this is done by the investigative section of Defence Command or by civilian police, but trivial cases are investigated by the defendant's own unit. The civilian police has always the right to take the case from the military.[8]:§§28, 35, 39

If the case does not warrant a punishment greater than a fine or a disciplinary punishment, the punishment is given summarily by the company, battalion or brigade commander, depending on severity of the crime. If the brigade commander feels that the crime warrants a punishment more severe than he can give, he refers the case to the local district attorney who commences prosecution.[8]:§§46–48

The crimes with military jurisdiction are handled by the civilian district court which has a special composition. In military cases, the court consists of a civilian legally trained judge and two military members: an officer and a warrant officer, an NCO or a private soldier. The verdict and the sentence are decided by a majority of votes. However, the court cannot give a more severe sentence than the learned member supports. The appeals can be made as in civilian trials. If a court of appeals handles a military matter, it will have an officer member with at least a major's rank. The Supreme Court of Finland has, in military cases, two general officers as members.[7]:Ch. 3

Courts-martial proper are instituted only during a war, by the decree of the government. Such courts-martial have jurisdiction over all crimes committed by military persons. In addition, they may handle criminal cases against civilians in areas where ordinary courts have ceased operation, if the matter is urgent. Such courts-martial have a learned judge as a president and two military members: an officer and an NCO, warrant officer or a private soldier. The verdicts of a war-time court-martial can be appealed to a court of appeals.[7]:Ch. 6

Germany

The Basic Law (Grundgesetz) (adopted after the Second World War in 1949) establishes in Art. 96 para. 2[9] that courts-martial can be established by federal law. Such courts-martial would take action in a State of Defense (Verteidigungsfall) and only against soldiers abroad or at sea. However, no such law has been passed to date and German soldiers are tried exclusively before civil courts.

India

There are four kinds of courts-martial in India. These are the General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). According to the Army Act, army courts can try personnel for all kinds of offenses, except for murder and rape of a civilian, which are primarily tried by a civilian court of law. Higher government authorities do not deal with the military doctrines. The President of India can use his judicial power, (Article 72), to give either pardon, reprieve, respite or remission of punishment or sentence given by a court martial.

Egypt

The Egyptian government has been criticized for putting civilians on military trials.

Luxembourg

In Luxembourg, there are three levels of military jurisdiction:

  • The lowest is the Council of War which is composed of one Lieutenant-Colonel (or higher), one Captain (or higher) and one civilian judge of a District Court.
  • The Military Court of Appeal is composed of two high magistrates of a civilian Court of Appeal and one Major (or higher).
  • At the top is the Military High Court which deals not only with military cases, but also with acts of high treason, sabotage, organized forms of terrorism and crimes against humanity. It is composed of two magistrates of a civilian Court of Appeal, one judge of a civilian District Court and one Lieutenant-Colonel (or higher) of the Army.[10]

Netherlands

In the Netherlands, members of the military are tried by a special military section of the civilian court in Arnhem. This section consists of a military member and two civilian judges. The decision whether or not to prosecute is primarily made by the (civilian) attorney general.[11]

New Zealand

Service members of the New Zealand Defence Force are tried under a Court Martial for offences pertaining to the most serious offences against the Armed Forces Discipline Act 1971. Offences such as such as mutiny, murder, sexual offences, serious assaults, drug offences, or offences where the maximum punishment exceeds a 7 year prison term will be heard by Court Martial. Below this 7 year threshold the accused is dealt with by their Commanding Officer in what is known as a Summary Trial.

During Court Martial the appointed judge is either a New Zealand High Court or District Court Judge and he or she presides over the trial. Defendants are assigned Legal Counsel, and for the prosecution, a lawyer is assigned who generally comes from a military background. The Judge Advocate is usually made up of senior NZDF Officers and Warrant Officers who hear the defence and prosecution evidence during Court Martial. Punishment on Guilty findings of a defendant will see them face being charged with a punishment such as serious reprimand, loss of rank, dismissal from the NZDF, or being sent to military or civilian prison.

Singapore

Under the Singapore Armed Forces Act,[12] any commissioned officer is allowed to represent servicemen when they are tried for military offences in the military courts. The cases are heard at the Court-Martial Centre at Kranji Camp II.[13][14] Some of the early day courts martial in Singapore include CPT G. R. Wadsworth due to use of insubordination language[15] and in the modern day misbehaviours by conscripted servicemen.[16]

United Kingdom

The Court Martial is one of the Military Courts of the United Kingdom. The Armed Forces Act 2006 establishes the Court Martial as a permanent standing court. Previously courts-martial were convened on an ad hoc basis with several traditions, including usage of swords. The Court Martial may try any offence against service law.[17] The Court is made up of a Judge Advocate, and between three and seven (depending on the seriousness of the offence) officers and warrant officers.[18] Rulings on matters of law are made by the Judge Advocate alone, whilst decisions on the facts are made by a majority of the members of the court, not including the Judge Advocate, and decisions on sentence by a majority of the court, this time including the Judge Advocate.[19]

United States

Most commonly, courts-martial in the United States are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice (UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance. There are three types: Special, Summary, and General.

Fictional examples

In Herman Melville's novella Billy Budd (first published 1924), the title character is convicted at a drumhead court-martial of striking and killing his superior officer on board HMS Indomitable, is sentenced to death, and is hanged. The novella has been adapted for the stage, film and television; notably in Benjamin Britten's 1951 opera Billy Budd.

In C. S. Forester's 1938 novel Flying Colours, Captain Horatio Hornblower is court-martialed for the loss of HMS Sutherland. He is "most honourably acquitted".

See also

References

  1. ^ Robinson O. Everett. "Persons Who Can Be Tried by Court-Martial". Duke University School of Law.
  2. ^ James Snedeker (October 1, 1949). "Jurisdiction of Naval Courts Martial over Civilians". Notre Dame Law Review. 24 (4).
  3. ^ Note about the military justice, French Senat
  4. ^ court-martial at www.merriam-webster.com. Retrieved 23 Feb 2018.
  5. ^ court martial at dictionary.cambridge.org. Retrieved 23 Feb 2018.
  6. ^ Clark, Andrew (14 July 2008). "A keen soldier: the execution of second world war private harold pringle". National Defence and the Canadian Forces. Retrieved 8 August 2010.
  7. ^ a b c Sotilasoikeudenkäyntilaki. (326/1983). (Act on military trials). Retrieved 30 August 2015. (in Finnish)
  8. ^ a b Laki sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa (255/2014) (Act on maintenance of military discipline and crime fighting in the Defense Forces). Retrieved 2015-0i-30. (in Finnish).
  9. ^ "Basic Law for the Federal Republic of Germany (Grundgesetz, GG)". www.iuscomp.org.
  10. ^ Pierre Majerus, L'État luxembourgeois, p 269, publ. Editpress, Luxembourg 1990
  11. ^ "Militair strafrecht" [Military criminal-law], Rechtspraak.nl (in Dutch), Hoge Raad der Nederlanden, archived from the original on 5 August 2009
  12. ^ Singapore Armed Forces Act (CHAPTER 295), Attorney-General's Chambers
  13. ^ Opening Ceremony of the New SAF Court-Martial Centre, Government of Singapore
  14. ^ Mindef course trains defending officers who represent court-martialled personnel, Singapore Press Holdings Ltd
  15. ^ COURT MARTIAL DISSOLVED, The Singapore Free Press
  16. ^ SAF soldiers damage new cars in illegal joyride, The New Paper, archived from the original on 27 September 2016
  17. ^ Section 50
  18. ^ Sections 154 to 157
  19. ^ Sections 159 to 160

Further reading

External links

  1. ^ "the definition of court-martial". www.dictionary.com.
2011 Helmand Province incident

The 2011 Helmand Province incident was the manslaughter of an injured Taliban insurgent by Alexander Blackman, which occurred on 15 September 2011. Three Royal Marines, known during their trial as Marines A, B, and C, were anonymously tried by court-martial. On 8 November 2013, Marines B and C were acquitted, but Marine A was initially found guilty of murder of the Afghan combatant, in contravention of section 42 of the Armed Forces Act 2006. This made him the first British soldier to be convicted of a battlefield murder whilst serving abroad since the Second World War.On 6 December 2013, Blackman was sentenced to life imprisonment with a minimum term of ten years, and dismissed with disgrace from the British Armed Forces. On 22 May 2014, the Courts Martial Appeal Court reduced his minimum term to eight years.In March 2017, the conviction for murder was overturned and reduced to manslaughter on the grounds of diminished responsibility. Sergeant Blackman was released from prison on 28 April 2017 but his dismissal from the Marines remains in place.

Convening authority (court-martial)

The term convening authority is used in United States military law to refer to an individual with certain legal powers granted under either the Uniform Code of Military Justice (i.e. the regular military justice system) or the Military Commissions Act of 2009 (for the Guantanamo military commissions).

Court-martial of James, Lord Gambier

The Court-martial of James, Lord Gambier, was a notorious British naval legal case during the summer of 1809, in which Admiral Lord Gambier requested a court-martial to examine his behaviour during the Battle of Basque Roads in April of the same year. Noted for the acrimony and corruption of proceedings, it has been described as "one of the ugliest episodes in the internal history of the Royal Navy."Gambier was the Royal Navy commander of the Channel Fleet during the later Napoleonic Wars, primarily tasked with the blockade of the French Atlantic Fleet in Brest. In February 1809 the French fleet tried to break out into the Atlantic and was chased into the anchorage of Basque Roads near the Charente River. On 11 April a major attack was launched on the anchored fleet by fireships and over several days the French fleet was driven ashore and battered by an inshore squadron commanded by the maverick officer Lord Cochrane. Gambier, stationed just offshore with the main fleet, refused to support Cochrane and as a result, although damaged, most of the French fleet eventually escaped to safety.

On his return to Britain, Cochrane used his position as a Radical Member of Parliament to attempt to block an effort to officially thank Gambier for the victory, placing him in direct opposition to Prime Minister Lord Portland's administration and First Lord of the Admiralty Lord Mulgrave. Mulgrave warned Gambier of Cochrane's position, who responded by demanding a public examination of his conduct via a court-martial. Convened at Portsmouth on 26 July 1809, the members of the court were deliberately chosen by Mulgrave to favour Gambier, and over the next eight days a series of witnesses were called who largely discredited Cochrane with misleading evidence. When Cochrane was called to give evidence he was subject to aggressive questioning, lost his temper and was officially reprimanded.

At the conclusion of the court-martial the members of the court unanimously found in Gambier's favour and despite Cochrane's best efforts Parliament voted thanks to Gambier. Gambier was restored to command and served in the Navy until his death in 1833. Despite popular support, Cochrane's resistance had alienated much of the naval and political establishment in Britain and not long afterwards he was implicated in the Great Stock Exchange Fraud of 1814, convicted and publicly humiliated. He was dismissed from the Royal Navy, although he was later pardoned and reinstated in 1832. Historians have subsequently sided with Cochrane, with even French Emperor Napoleon describing Gambier as a "fool".

Court Martial (1928 film)

Court Martial (1928) is a silent film directed by George B. Seitz, starring Jack Holt, Betty Compson as Belle Starr, and Frank Austin as Abraham Lincoln, and released by Columbia Pictures.

A foreign release print of the film survives and is preserved in the collection of the Museum of Modern Art in New York. It was shown at the annual Cinecon Classic Film Festival in 2014.Publicity for the film stated that several sequences were shot in early Technicolor, but these do not appear to have survived.

Court Martial (horse)

Court Martial (foaled 1942 in England – died in 1974) was a Thoroughbred racehorse bred and raced by Lord Astor best known for defeating two exceptional colts in Dante and Royal Charger for the Classic 2000 Guineas Stakes and as a two-time leading sire in Great Britain and Ireland.

He was a chestnut horse sired by the leading sire Fair Trial, that also sired Petition (won the Eclipse Stakes). Court Martial's dam Instantaneous by Hurry On was the dam of several other named foals, but none was a stakes winner. She was a great granddaughter of Astor's foundation mare Conjure. John Hislop describes Court Martial as "A beautiful horse of superb quality, truly made, sound and possessed of excellent limbs, but with shelly feet a trait which he has handed on ... Though having a measure of stamina, speed was Court Martial's forte, which is reflected in his stock. An outstanding and wonderfully consistent stallion . . . his mares have done comparably well at stud. Most of his stock likes soft ground."

Court Martial Appeal Court of Canada

The Court Martial Appeal Court of Canada (CMAC) (French: Cour d'appel de la cour martiale du Canada) hears appeals from Courts-martial of Canada ("courts martial").

In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge. They have the jurisdiction to try military personnel, and those civilian personnel that accompany military personnel abroad, for crimes that contravene the Code of Service Discipline and the National Defence Act; which incorporates many of the offences under the Criminal Code and related statutes.

The CMAC was established in 1959 by Parliament under the National Defence Act, to replace the Court Martial Appeal Board. Due to the court's small caseload, justices of the CMAC are cross-appointed from justices of provincial superior courts and the Federal Court and Federal Court of Appeal. Appeals from the CMAC lie with the Supreme Court of Canada. Appeals require leave from the Supreme Court, unless a justice of the CMAC dissents on a question of law, in which case there is an appeal as of right to the Supreme Court.

Courts-martial of the United States

Courts-martial of the United States are trials conducted by the U.S. military or by state militaries. Most commonly, courts-martial are convened to try members of the U.S. military for criminal violations of the Uniform Code of Military Justice (UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Federal courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance. State courts-martial are governed according to the laws of the state concerned. The American Bar Association has issued a Model State Code of Military Justice, which has influenced the relevant laws and procedures in some states.

Courts-martial are adversarial proceedings, as are all United States criminal courts. That is, lawyers representing the government and the accused present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (or military judge in a judge-alone case) determine questions of fact.

State National Guards (air and army), can convene summary and special courts martial for state-level, peacetime military offenses committed by non-federalized Guard Airmen and Soldiers, in the same manner as federal courts martial proceed. The authority for State National Guards to convene courts martial is under Title 32 of the US Code. State that have militaries (State Guards) outside the Federally regulated National Guard convene courts-martial by authority of state laws.

David Stratas

David William Stratas (born October 21, 1960) is a prominent Canadian jurist. He has served on the Federal Court of Appeal since 2009 and the Court Martial Appeal Court of Canada since 2012.

Drumhead court-martial

A drumhead court-martial is a court-martial held in the field to hear urgent charges of offences committed in action. The term sometimes has connotations of summary justice.

The term is said to originate from the use of a drumhead as an improvised writing table, as an altar for religious services, or a traditional gathering point for a regiment for orders or decisions.

Ehren Watada

Ehren Keoni Watada (born 1978) is a former first lieutenant of the United States Army, best known as the first commissioned officer in the US armed forces to refuse, in June 2006, to deploy to Iraq. Watada refused to deploy for his unit's assigned rotation to Operation Iraqi Freedom, saying he believed the war to be illegal and that, under the doctrine of command responsibility, it would make him party to war crimes. At the time, he was assigned to duty with the 5th Battalion, 20th Infantry Regiment, part of the 3rd Brigade, 2nd Infantry Division, as a fire support officer. He was brought before a court-martial in 2007 which ended in a mistrial; the Army subsequently discharged him under "Other-Than-Honorable-Conditions" (OTH) in 2009. An OTH discharge is the least favorable type of administrative discharge from the Army, and is reserved for a "pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army."

Judge Advocate General's Corps

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

Judge Advocates serve primarily as legal advisors to the command to which they are assigned. In this function, they can also serve as the personal legal advisor to their commander. Their advice may cover a wide range of issues dealing with administrative law, government contracting, civilian and military personnel law, law of war and international relations, environmental law, etc. They also serve as prosecutors for the military when conducting courts-martial. In the United States military, they are charged with both the defense and prosecution of military law as provided in the Uniform Code of Military Justice. Highly experienced officers of the JAG Corps often serve as military judges in courts-martial and courts of inquiry.

Michael L. Phelan

Michael Lawlor Phelan (born June 8, 1947 in Sherbrooke, Quebec) is a judge of the Federal Court of Canada.

Military discharge

A military discharge is given when a member of the armed forces is released from his or her obligation to serve. Each country's military has different types of discharge. They are generally based on whether the person completed their training and then fully and satisfactorily completed their term of service. Other types of discharge are based on factors such as the quality of the person's service, whether their service had to be ended prematurely due to humanitarian or medical reasons, whether the person had been found to have drug or alcohol dependency issues and whether they were complying with treatment and counseling, or whether the person had demerits or punishments for infractions or were convicted of any crimes. These factors affect whether they will be asked or allowed to re-enlist and whether they qualify for benefits after their discharge.

Non-judicial punishment

Non-judicial punishment (or NJP) is any form of punishment that may be applied to individual military personnel, without a need for a court martial or similar proceedings.

The Caine Mutiny Court-Martial

The Caine Mutiny Court-Martial is a two-act play, of the courtroom drama type, that was dramatized for the stage by Herman Wouk, which he adapted from his own novel, The Caine Mutiny.

Wouk's novel covered a long stretch of time aboard the USS Caine, a Navy destroyer minesweeper in the Pacific. It begins with Willis Keith's assignment to the Caine, chronicles the mismanagement of the ship under Philip Francis Queeg, explains how Steve Maryk relieved Queeg of command, gives an account of Maryk's court-martial, and describes the aftermath of the mutiny for all involved.

The play covers only the court-martial itself. Like jurors at a trial, the audience knows only what various witnesses tell of the events on the Caine.

The Court-Martial of Billy Mitchell

The Court-Martial of Billy Mitchell is a 1955 film directed by Otto Preminger. It stars Gary Cooper as Billy Mitchell, Charles Bickford, Ralph Bellamy, Rod Steiger and Elizabeth Montgomery in her film debut. It is based on the notorious court-martial of General Billy Mitchell, who is considered the founder of the U.S. Air Force. When it was released, Mitchell's sister Ruth, who served in World War II with Yugoslavian Chetnik guerrillas and later wrote a book about her brother, toured doing publicity for the film.

The Court-Martial of Jackie Robinson

The Court-Martial of Jackie Robinson is a 1990 American drama film directed by Larry Peerce and written by L. Travis Clark, Steve Duncan, Clay Frohman and Dennis Lynton Clark. The film stars Andre Braugher, Daniel Stern, Ruby Dee, Stan Shaw, Paul Dooley and Bruce Dern. The film premiered on TNT on October 15, 1990.

The Court Martial of Major Keller

The Court Martial of Major Keller is a 1961 British film directed by Ernest Morris and written by Brian Clemens. It stars Laurence Payne, Susan Stephen and Austin Trevor. The film recounts the court martial for murder of Major Keller, a British army officer during the Second World War. He is charged with killing his superior officer, but remains silent, refusing to defend himself.

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