Military Justice without Military Control

Abstract

After World War II many western nations experienced popular dissatisfaction with their wartime military justice. 1 The need for reexami. nation was most critical in Germany whose World War II court-martial system reflected both Prussian severity and Nazi arbitrariness.-" However, military justice in other western nations was also heavily disciplinarian; and as a result of war-generated criticism, Western Germany, Sweden, Austria, and Denmark abolished their court-martial systems. a Other western nations, such as Great Britain, retained the court-martial, but adopted more judicial procedures and expanded civilian control over certain of its functions. 4 However, American reforms were more limited. The Uniform Code of Military Justice (UCMJ),5 enacted in 1950, extended a number of new procedural rights to servicemen, but retained the traditional structure of the court-martial. The tri-tiered hierarchy of commander-convened courts was left unchanged; 0 and,

Reforming Military Juries in the Wake of Ramos v. Louisiana

“…By the time of the 1970s, half of enlisted servicemembers performed technical jobs (like mechanic) and another third performed service-related jobs (like food service). 195 And "[s]ociologists have noted the gradual convergence of military and civilian social structures due to technology and the bureaucratization of military functions." 196 The old notion that the military is a separate society is no longer accurate.…”

Jurisdiction of Military Courts over Civilian Terrorists in Pakistan: A Miscarriage of Justice

“…23 Additionally, the military justice system is developed as a separate legal system under the system of command and control because military units are often insulated from civilians. 24 It is significant to mention here that the ultimate goals of both the justice systems are different. Thus, if ordinary courts applied the same traditional military rules over civilians in the same manner as applied by the military courts over military personnel, such practice will ultimately dilute its own utility and efficacy, which is exercised inside the military units in order to maintain discipline, command, and control over the forces.…”

Military Justice Before and After September 11

“…Members of the Swedish military from then on were judged in civilian courts for both military and civilian crimes; military courts were preserved only for the rather unlikely contingency that Sweden goes to war. 10 Unfortunately, this sensible approach has not been widely emulated. In Latin America, for example, the advent of military regimes in the 1960s and 1970s led to the widespread use of military courts to prosecute those deemed to be threatening to "national security."…”

“…According to Sherman, "military leadership doctrine now favors persuasion over authoritarian domination and views the commander's objective as instilling high initiative and morale rather than rigid discipline." 16 Military penal law has therefore been losing its legitimacy and has begun to be contested in many countries. The common citizen has begun to demand the "civilianization" of military justice, because the latter is increasingly seen as a tool of the military institution or particular governments, rather than the protector of the rights of citizens (including military citizens).…”