Military Court System Research Articles

Human Resources Management Strategy in the Military Justice Environment: Study of State Civil Apparatus Management at the High Court of the Supreme Court of the Republic of Indonesia

The Supreme Court is a judicial institution vested with authority to exercise judicial power in four separate branches of the judiciary, namely the General Courts, Religious Courts, Administrative Courts, and Military Courts. The Military Court, in particular, serves as the judicial body responsible for upholding the law and justice for members of the Indonesian National Armed Forces (TNI). Unlike the other three branches of the judiciary, the Military Court system consists of three appellate courts and one main court. The existence of these four courts is governed by Law Number 31 of 1997 on Military Judiciary and the Chief Justice of the Supreme Court Regulation Number 125 of 2009 on the Delegation of Authority to High-Ranking Officials and Chief Justices of Appellate Courts within the Supreme Court for Signing in the Field of Personnel. However, the implementation of these regulations has still resulted in varying interpretations and paradigm differences, especially in understanding the phrase "appellate court," which has been perceived as somewhat biased and not fully implemented. This is particularly evident in the coordination and management of Civil Servants (ASN), as the Supreme Court places the Main Military Court on par with the appellate courts, although in practice, the Main Military Court resembles a "court above the appellate courts." This research employs a qualitative approach with a specific Case Study research method, focusing on the differential treatment of ASN members who represent a minority within the Military Judiciary. Ultimately, the study recognizes the need to bring together perspectives and unify understandings regarding the implementation of the Chief Justice of the Supreme Court Regulation Number 125 of 2009, analyzed through the Equal Employment Opportunity (EEO) theory, in order to harmonize the management and governance of appellate courts. This would help eliminate disparities between the High Military Court and the Main Military Court, serving as a bridge of understanding within the Military Judiciary in Indonesia.

Pre-Trial in the Criminal Justice System in Military Criminal Judges in Indonesia

Law enforcement in the Military Court System in the settlement of criminal cases committed by TNI soldiers is seen as not yet fully guaranteeing legal protection for the rights of suspects, this is due to the absence of a control agency that oversees the actions of law enforcement officers in carrying out their duties and authorities as is the case in the system. General Court. This condition should not drag on indefinitely, because it will affect the law enforcement process and harm the suspect to fight for his rights to obtain justice which results in human rights violations (TNI soldiers). The purpose of the establishment of the Pretrial Institution is as stated in the Elucidation of Article 80 of the Criminal Procedure Code which states that this article intends to uphold law, justice, and truth through horizontal supervision. Settlement of criminal cases in Indonesia in addition to the Code of Criminal Procedure Code (KUHAP) which applies to civil society, we also recognize the existence of the Military Criminal Procedure Code which is regulated in Law Number 31 of 1997 concerning Military Courts, namely the law that regulates the procedure for resolving criminal cases. a criminal case committed by a TNI soldier. The Law on Military Courts includes the provisions of the litigation process (Military Criminal Procedure Law) starting from the investigation stage, submission of cases, the examination process at trial to the implementation of decisions. 31 of 1997 does not regulate pretrial. In several cases in the Military Court where a suspect was detained without a warrant for detention or was late in obtaining a warrant for detention, therefore such actions may conflict with the principles applicable in the provisions of criminal law so that they do not respect the position of the suspect as a creature created by God, even the act can lead to human rights violators. Therefore, in the military justice system in Indonesia, pretrial institutions are needed as a form of horizontal external supervision.

The Rulings of the Israeli Military Courts and International Law

Abstract International humanitarian law (IHL) provides the occupying power extensive legal tools in order to allow it to control and govern the local occupied population, with the possibility of establishing a military law system being one of the most influential. The military law system gives the Military Commander of the occupied area an immense power as a potential legislator and judicial authority, but what happens when this legal system encounters the limitations placed by IHL in general and Occupation Law in particular? To examine this question, this article will present the case of the Israeli Military Court system in the Palestinian Occupied Territories and its use, abuse and misuse of international law norms. Based on the 5565 published rulings of the Military Court of Appeals, this research identifies all of the cases that refer to international law. This article suggests that the evolving approaches of the courts to international law are, in fact, a tool to justify and advance Israeli interests over the rights of the Palestinian defendants. Moreover, the article presents the potential impact these rulings have on the law in Palestine, the law in Israel and customary international law.

A Labyrinth of Appointments Clause Issues in the Military Appellate Courts: Unpacking United States v. Ortiz and United States v. Dalmazzi

United States v. Ortiz and United States v. Dalmazzi present two important constitutional Appointments Clause issues that may come before the Supreme Court in the next term. The first issue is whether military officers serving as judges on the United States Court of Military Commission Review (USCMCR) are “principal” officers under the Appointments Clause of the Constitution. If yes, the second issue is whether such officers’ principal status prohibits them from simultaneously serving as judges on the various armed services courts of appeals, including for the Air Force, Navy, and others. More broadly—and relevant beyond the military appellate court system—these questions implicate the as-yet-unanswered question of whether the Appointments Clause principal-inferior status of government officers who serve in multiple positions should be evaluated “holistically” across their offices, or instead independently for each office they hold. The Court of Appeals for the Armed Forces (CAAF) recently decided United States v. Ortiz on non-constitutional grounds, and the Supreme Court has asked for briefing on the constitutional issues in United States v. Dalmazzi. The issues in these cases are critical for two reasons. One reason is that the current military appellate court system sometimes utilizes the same officer-judges serving on multiple courts at the same time. A second reason is that a Supreme Court determination that military appellate judges serving on the USCMCR are principal officers may also constitutionally preclude military officers from serving on that court. To explore whether USCMCR judges are constitutionally prohibited from simultaneously serving on an armed service court of appeal, this paper provides a brief summary of the relevant facts and background law surrounding United States v. Ortiz in Part I and presents the parties’ constitutional arguments in Part II. In Part III, the paper evaluates Ortiz’ statutory argument that Colonel Mitchell’s presidential appointment to the USCMCR pursuant to 10 U.S.C. § 950f(b)(3) makes him ineligible to serve on the AFCCA. In Part IV, this paper then evaluates the constitutional arguments in concluding that simultaneous service on the USCMCR and armed service courts of appeal does not violate the Appointments Clause. This is because USCMCR judges are not principal officers and, even if they were, no other officer on an armed service court of appeal supervises or directs them. More broadly, in section IV.B.2, this paper suggests that courts should review the principal-officer status of officers serving in multiple positions “holistically”: If, in any one position, an officer is “supervised and directed” by another officer, that officer should be considered an inferior officer for purposes of all positions the officer holds.

O sądach wojskowych dla osób cywilnych w Polsce (1946)

At the end of WWII (1944), Polish citizens living on Polish territory were judged predominantly by the military courts of the Soviet Red Army and of Soviet secret security forces – NKVD (People’s Commissariat of Internal Affairs). In addition to that, Polish civilians were judged by the military courts of the Polish Army entering Poland from the east, from the Soviet Union. The military court system of the Polish Army was in fact under the control of the Soviet Union. As the war finished, the martial law was officially finished on 17 December 1945. And in January 1946, the communist regime set up military courts for civilians in each administrative district. Those military courts for civilians were dealing exclusively with the civilians and not with the military staff – neither officers nor soldiers – affairs. They had a special task: to fulfill the concept of the class struggle and to physically destroy the opposition – both real opposition and fictional one. Military courts were following the orders of the communist party and finished their activity in 1955. They were the most important and the most tragic institutional phenomenon in the whole history of the so-called judicial system of communist People’s Poland.

The leading characteristics and Implication on Criminal Process of US Military Trial

최근 군에서 발생한 일련의 대형사건(폭행・총기 등에 의한 살인 등)들은 군사법원법 또는 군사재판제도의 발본적인 개정・개선의 문제점을 제기하고 있다. 특히 군의 자율성과 특수성의 인정 아래 헌법적 근거로 운영되는 군사재판제도의 다양한 문제점에 대한 개선논의는 재판의 공정성 담보 문제로 귀착된다고 할 수 있다.우리나라 군사법원법과 군사재판제도는 미국의 통일군사법전(UCMJ)과 군사재판제도의 영향 아래 탄생하였다. 따라서 우리나라 군사재판제도의 효율적인 개선방안을 모색하기 위한 기초연구로 미국 군사재판의 형사절차에 관한 주요 특징을 고찰하는 것은 의미가 있는 일이라 할 것이다. 미국 군사재판의 형사절차에서 주요 특징으로는, 첫째 피의자・피고인의 제권리가 일반 형사절차의 경우보다도 두텁게 보장되는 점 [예컨대 미란고지의 범위 확장, 피의자의 자력과 무관하게 공공변호인을 선임하거나 UCMJ 제32조의 심문(공판전조사)을 통한 검사의 전면적 증거개시의무 및 양형의 재심사 등], 둘째 UCMJ 제39조의 심문절차 중 하나인 기소사실인부절차에서 유죄답변협상을 통하여 공판전합의가 이루어지며 이 합의는 선고형의 하한으로 작용하는 점(사형사건은 제외), 셋째 공판심리에 대하여 벤치재판과 배심재판을 피고인이 선택할 수 있는 점, 넷째 각 죄를 포괄하여 하나의 형으로 처리하면서 형을 양정하는 점, 다섯째 지휘관(CA)에 의한 승인・사후심사절차에서 공판후합의가 인정 되는 점, 여섯째 군사재판의 모든 절차에서 지휘관의 불법적인 영향력 행사를 금지하여 재판의 공정성을 담보하는 점, 일곱째 특정한 형이 부과되는 사건에 대하여는 피고인의 이익을 위하여 자동적 상소제도를 인정하는 점, 여덟째 신병이 구금되어 있는 자(구금시 설에 수용된 수형자를 포함)는 일반 연방법원에 ‘인신보호영장’에 의한 구제를 신청할수 있는 점 등을 들 수 있다. 이상과 같은 미국 군사재판제도의 특징을 토대로 첫째 심판관제도와 관련하여서는 장교, 부사관, 병사 및 군무원 등이 합리적인 비율에 따라 동료의 군사재판에 참여할 수 있는 미국식 배심재판의 도입 내지는 일반 형사절차상 국민참여재판과 같은 장병등의 참여가 가능한 혼합형 참여재판의 도입 여부, 둘째 피의자나 피고인의 자력여부와는 무관한 일률적인 국선변호인 선정제도의 도입 여부 및 방어권의 전제가 되는 미란다고지의 범위 확장 여부, 또한 피해자의 권리보호를 위한 군사재판에의 피해자참가제도의 도입가능성 여부, 마지막으로는 관할관 및 지휘관의 권한에 대한 발본적인 제도적 보완과 더불어 군사재판의 공정성을 담보하기 위한 방안으로 미국 UCMJ상 지휘관의 군사재판에 대한 불법적인 영향력 행사 금지조항과 같은 규정의 도입여부를 향후 심도있게 분석할 필요가 있을 것이다.A series of large-scale incidents that occurred recently in the military(assault, murder by the gun) raise Military Court Act’s problems or drastic revision of the military court system. Especially, under the military autonomy and certification of particularity, discussion to improve the various problems of the military court system, which is operated by constitutional grounds, can be concluded to a problem of fairness of the collateral of the trial. Korea Military Court Act and military court system was born under the influence of the United States’s uniform code of military justice(UCMJ) and the military court system. Therefore, as a basic research, in order to seek an efficient improvement of the military justice system of our country, considering the trends in criminal proceedings of the United States military court is a meaningful thing. A major feature in the criminal proceedings of the US military tribunal are like that, first, suspect and the accused’s rights can be guaranteed(for example, Miran rule’s expansion, appointment of public attorney, interrogation of UCMJ Article 32 (such as pre-trial investigation), second, the pretrial agreement through a plea-bargain are carried out in the indictment, and fact approval or disapproval procedure is one of the interrogation of the UCMJ Article 39, third, it can be possible to choose a bench trial and jury trial for the proceedings, fourth, to treat the crime of each type as a single type, fifth, in the process of CA’s approval and posterior judgement, Agreement after trial can be recognized, sixth, to prohibit illegal influence of the commander in all the steps of the military court and to ensure the fairness of the trial, seventh, for the incident that a particular type are imposed, to admit automatically appeal system for the accused, eighth, recruits (including the inmates housed in the detention facility) who have been detained, that it is possible to apply for relief by the habeas corpus to the general federal court. Based on the characteristics of the US military court system, first, it need to introduce the american jury system or not the system that officer, non-commissioned officers, and soldiers and military service members shall take part in conjunction with the hearing examiner system by a reasonable percentage and mixed participation trial, such as the public participation trial on such criminal proceedings. Second, regardless of introducing a court-appointed counsel selection system regardless of suspect and accused’s property, expansion announcement of Miranda Principle, third, whether the participation of victims in the military trial for victims of rights protection, or not, finally, to supplement institutionally the jurisdiction and the commander’s authority and in order to ensure the fairness of the military court, it need to introduce a prohibition which is commander of the US UCMJ’s unlawful influence on the military trial.

Case Studies on the Abolition of the South Korean Military Court System

Case Studies on the Abolition of the South Korean Military Court System

ANALISIS INDEPENDENSI ODITUR MILITER DALAM MELAKSANAKAN FUNGSINYA DI ODITURAT MILITER III-14 DENPASAR DENGAN BERLAKUNYA KEBIJAKAN RENCANA TUNTUTAN

Military Prosecuting Attorney is one of the main components in enforcing the criminallaw in the military judicature system. Moreover, the Military Prosecuting Attorneys is asa prosecutor in the Indonesian National Armed Forces (TNI). Confidently, it has majorfunction in demanding based on legitimating evidences in military court. Military ProsecutingAttorney can work its duty well, if it has independently in the function as general presector ofIndonesian military court system. Afterwards, the first problem is wheter Military ProsecutingAttorney independently achieve its function in Oditurat Militer III-14 Denpasar by conductedthe plan demans policy as of Military Prosecuting Attorney General Indonesian NationalArmed Forces? Whereas, the second problem is whether the efforts shoud be accomplishedin establishing independent Military Prosecuting Attorney? This research was conducted byempirical legal research methods, and the study was a descriptive analytic research by usingprimary data and secondary data. Based on this research, it can be concluded that; first,Military Prosecuting Attorneys in Oditurat Militer III-14 Denpasar became less independent,it was occured because the implementation of the plan demand policy by Military ProsecutingGeneral Attorney. It can be stated that the demand was only established by upper position andfinally, the judgments are not merely according conscience. Secondly, Military ProsecutingAttorney attempt to independently in military justce system in three aspects such as technicalfield of prosecution, field supervision and control, as well as education and training.

Walled in/walled out in the West Bank: performing separation walls in Hany Abu-Assad’s Omar

Techniques of colonial governmentality, such as the conjointly reinforcing institutions and practices of the military court system and the network of military checkpoints and other devices, continuously act to undermine (and concurrently reinforce) the disputed sovereignty of Palestine. Bearing a striking resemblance to practices of governance developed in colonial settings, a ‘new military urbanism’, comprised of political devices (in the Agambian sense) such as roadblocks, checkpoints and concrete barriers, works to control the everyday lives of civilian populations. At the core of this military urbanism lies the mechanism of walling. In particular, the wall that makes up the West Bank security barrier, erected in 2002 by the Israeli Government ostensibly to protect Israeli civilians from Palestinian militant attacks, constitutes the strongest spatial manifestation of an unyielding state of exception – the place where life has lost its political existence. Focusing on the Palestinian film Omar (2013), written, produced and directed by Hany Abu-Assad – mainly on the ways it engages with territorial conflict and transgression – the central purpose of this article is to analyze its representation of the West Bank wall as both a physical reality of the state of exception and a site of radical potentiality. To frame the analysis of how Omar reflects upon the scope and possibility of nation-state sovereignty today, and also upon the value of human, bare life, the article will begin by addressing other visual narratives of street art that effectively reterritorialize the space of exception that is the West Bank. The article will also examine Omar’s positioning at the nexus of the national and the transnational as a product of the Palestinian film industry.

THE SOUTH AFRICAN MILITARY COURT SYSTEM – INDEPENDENT, IMPARTIAL AND CONSTITUTIONAL?

The Constitution of the Republic of South Africa makes provision for adefence force that is structured and managed as a disciplined military force. Evenprior to the Constitution, to ensure discipline in the military, the South AfricanMilitary Law had been developed and the military court system has been recognised by the Constitutional Court. This military criminal justice system has been createdwith a separate system of courts hearing matters pertaining to the usual, as well asother special statutory offences; and with a similar, but separate, investigativeprocedure, prosecuting authority, and court procedure.

The Israeli Military Court System In The West Bank And Gaza

The war on terror narrative has wedged a legal lacuna between a rights-based and terrorism discourse. Within this rights-free zone, the Military Commissions Act of 2006 was signed into law by US President George W. Bush in October 2006. Whilst the act is consistent with current US policy (and narrative), opponents argue that it places the US outside of existing liberal democratic state practice, and challenge both the efficacy, as well as legality of placing the war on terror within an IHL framework (with the use of Military Commissions). Yet a review of the case of Israel and the Occupied Territories suggests that, even within an ostensibly liberal, democratic framework, the practice (and the accompanying discourse) is hardly new. Against this backdrop, this article will explore the operation of the Military Court system in the Occupied Territories, examining its legal basis and the impact of the military administration on the criminal justice process. When interrogating the operation the Israeli Military Court system through the lens of international legal norms, this article argues that a lacuna exists between Court practices and international legal requirements.

Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. By Lisa Hajjar. Berkeley: University of California Press, 2005. Pp. 312. $24.95 paper.

Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. By Lisa Hajjar. Berkeley: University of California Press, 2005. Pp. 312. $24.95 paper. Reviewed by Vanessa Barker, Florida State University After 38 years of military occupation, Israel has recently withdrawn from Gaza and the West Bank. Readers seeking to understand the historic proportions of this move, especially as it is enmeshed in the legacy of Israeli control over Palestine, will be interested in Hajjar's first-rate ethnography, Courting Conflict: The Israel Military Court System in the West Bank and Gaza. Operating within a complex legal framework, Israel's military court system, Hajjar argues, functions as a highly repressive form of governance even as it remains shrouded in the principles of formal rational law. The military court system, Hajjar explains, has governed the everyday lives of Palestinians in the occupied territories since 1967. That is to say, the military court system not only prosecutes cases of security violations and armed resistance, but it regulates how Palestinians live their lives in the occupied territories. By applying various military orders, the court regulates how Palestinians actually move through the territories (e.g., curfews, checkpoints, permits), how they can or cannot display signs of Palestinian nationalism, how they can or cannot protest the occupation, and how they make a living, marry, and go to school, among other more mundane activities (p. 186). Pushing her point further, Hajjar argues that the military courts along with other legal institutions in the occupied territories have created what Foucault characterized as a society. Governed by intensive surveillance, discipline, and practices of domination, Hajjar argues that Palestinians have become imprisoned in their own homeland (p. 186). Hajjar's application of Foucault is problematic. Foucault analyzed how modern democracies created carceral societies based on insidious forms of surveillance, normalization, and discipline. But they did so in ways deemed legitimate by citizens who actively participated in their own subjugation. In the case of the Israel/Palestine conflict, the court system has created a real prison inside Palestine, a conquered land. By doing so, the Israeli military courts have indeed created a carceral society but one deemed illegitimate by most if not all Palestinians. Perhaps the strongest part of the book, Hajjar's ethnography vividly captures the intensity and banality of social control. She details the tedium of the court as well as the brutal practices of torture. In part because of her own background (American with Syrian heritage), Hajjar gained a high degree of access to key actors in the military courts. During her two years of fieldwork in Ramallah, Hebron, Nablus, Jenin, Tulkaram, and Gaza (1991-1993), she was a participant-observer in daily court proceedings and interviewed 150 people, including judges, prosecutors, translators, defense attorneys, and defendants, most forthcoming in their discussions of the court, its meaning, and its role in the Israel/Palestine conflict (pp. …

Courting Conflict: The Israeli Military Court System in the West Bank and Gaza: Lisa Hajjar

Courting Conflict: The Israeli Military Court System in the West Bank and Gaza: Lisa Hajjar

Review: Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

Review: Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

MSJAMA. The status of pregnant women and fetuses in US criminal law.

MSJAMA. The status of pregnant women and fetuses in US criminal law.

Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine

There is an interest among scholars working on cause lawyering to “globalize” the subject by studying professional and political networks that span national boundaries. The globalizing scope of human rights provides a particularly relevant perspective, complementing the more narrowly attenuated focus on the roles and activities of cause lawyers. The subjects of this article are Israeli and Palestinian cause lawyers who have worked in the Israeli military court system in the Occupied Territories. This study adopts a transnational perspective both because the context itself (Israel/Palestine) is composed of relations that span national boundaries (statal and ethnonational) and because it befits a consideration of the international networks of human rights. Following an introductory discussion of transnationalism and a brief background on Israel/Palestine and the military courts, I turn to three aspects of cause lawyering: the political motivations inspiring lawyers to engage in such work; a comparative assessment of the legal and extralegal strategies pursued by lawyers; and the influence of human rights on the politics of lawyering in this context.

Courts, politics, and culture in Israel

Introduction Politics and the Constitution in Israel The Changing Role of the Israeli Supreme Court The Rabbinical Courts - A Portion of Animosity The Muslim Courts - A Sense of Collectivity The Druze Courts - A Watchful Instinct The Military Court System and the Rule of Law The Impact of Israeli Court Systems on Its Political Culture.