Military Justice Research Articles

Informational and legal support for the activities of military justice bodies on the territory of the Ukrainian SSR (1941-1942 рр.)

The article considers the historical and military features of the legal providing of activity of organs of military justice are considered on territory of Ukraina in 1941-1942 years.

CONSELHO SUPREMO MILITAR E DE JUSTIÇA E A INTERIORIZAÇÃO DE UMA CULTURA JURÍDICA DE ANTIGO REGIME NO RIO DE JANEIRO (1808- 1831)

O objetivo do artigo é refletir sobre a implantação da justiça militar no Brasil, em especial a de seu principal órgão, o Conselho Supremo Militar e de Justiça, defendendo a hipótese de que ela se inspira em debates e experiências políticas vividas no reinado de d. Maria I. Desse modo, a criação em 1808 do Conselho Supremo, e de outros órgãos da justiça militar, contribui para a interiorização de uma cultura jurídica de Antigo Regime no Rio de Janeiro. Uma cultura que, apesar de todas as críticas que lhe são endereçadas ao longo do século XIX, resistirá sem alterações significativas até a Proclamação da República em 1889.

Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues

This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability. However, for the reasons stated, these issues are not presented in detail here.

Military Justice Reform

Military Justice Reform

The State of Military Justice Reform in Turkey: 2014

The State of Military Justice Reform in Turkey: 2014

The Puritan culture of America's military: U.S. Army war crimes in Iraq and Afghanistan

Contents: Preface An excerpt from The Protestant Ethic and the Spirit of Capitalism Introduction 'A prayer against our enemies' An overview of American military justice Excerpts from The Swedish Articles of War Puritan military justice Excerpts from one letter and two speeches Puritanism and responsibility Two stories of hunting witches Puritanism and revenge An excerpt on military superstitions of World War II Puritanism and superstition An excerpt from Sam Vaknin's Malignant Self-Love Puritanism and narcissism A definition from The Devil's Dictionary by Ambrose Bierce Conclusion and discussion References Index.

Not Helping - How Congressional Tinkering Harms Victims during the Post-Trial Phase of a Court-Martial

Congress made many changes to the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act for Fiscal Year 2014. Among these are two changes to Article 60 of the UCMJ that address the participation of victims in the post-trial phase of a court-martial.The first change enacts an explicit requirement that a victim have the opportunity to submit matters to a convening authority (the military commander who acts on the results of a court-martial). The second change prohibits a convening authority from considering any submitted matter that relates to the character of a victim unless that matter was admitted into evidence during the trial.Broadly captioned as enabling victim participation in the clemency phase of a court-martial, these two changes add little while subtracting much. Victim submissions to a convening authority are nothing new; the UCMJ has always permitted such submissions as part of a convening authority’s review of the sentence imposed by a court-martial. But the censorship of submissions that relate to a victim’s character is a unique limitation on the scope of that review. As such, these changes impose significant costs while yielding few benefits, and rather than helping victims of offenses tried by courts-martial they will prove detrimental to both victims and their victimizers.

COMPLEMENTARITY AND COOPERATIVE JUSTICE AHEAD OF THEIR TIME? THE UNITED NATIONS WAR CRIMES COMMISSION, FACT-FINDING AND EVIDENCE

Today, many international criminal lawyers claim that the future of international law is domestic. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the future, but also the past. This article analyzes the practice of the Commission (1943–1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many World War II accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of United Nations (UN) peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has got lost in the course of the second half of the twentieth century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labelling and origin of core crimes (e.g. aggression, crimes against humanity), the treatment of group criminality (e.g. attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g. ‘mutual trust’ under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court (ICC). But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.

The Taliban's ‘military courts’

The Taliban's ‘code of conduct’, which lists rules of discipline for the fighters, has been widely discussed, but do the Taliban try to implement it? This article discusses the structures that the Taliban have put in place for this purpose and their evolution over the years. It assesses that while the Taliban's ‘military justice’ system is still work in progress, the fact that it has attracted a significant investment in human resources bears witness to a serious intent of the leadership. However, the Taliban's concern with the behaviour of their fighting force is driven by their own political calculus, not by any sympathy for the international law of conflict.

Sexual Assault in the Military: A Discussion of the Current Status and Future Prevention

Sexual Assault in the Military: A Discussion of the Current Status and Future Prevention

Complementarity and Cooperative Justice Ahead of Their Time? The United Nations War Crimes Commission, Fact-Finding and Evidence

Today, many international criminal lawyers claim that the future of international law is 'domestic'. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the 'future', but also the 'past'. This article analyzes the practice of the Commission (1943-1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many WWII accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of UN peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has gone lost in the course of the second half of the 20th century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labeling and origin of core crimes (e.g., aggression, crimes against humanity), the treatment of group criminality (e.g., attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g., 'mutual trust' under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court. But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.

‘The Blackest Perjury’: Desertion, Military Justice, and Popular Politics in England, 1803-1805

Framed around an account of the last deserter ever to face the firing squad in England, this article assesses the extent and significance of desertion from the land forces after the Peace of Amiens. Recent historical accounts have tended to use the large number of soldiers and volunteers raised in this period as a measure of the depth of popular loyalism at this time. This article seeks to temper these arguments by examining the difficulties the government had in retaining recruits for the army and militia between 1803 and 1805. Using official returns, court martial transcripts, and little-used deserter bounty certificates it will be demonstrated that levels of desertion were unusually high in England at this time and that the scale of desertion caused great anxiety among both the civil and military authorities. Moreover, through an examination of the motives which drove thousands of men to desert from their regiments, a more variegated plebeian experience of armed service will be presented, one which did...

ANALISIS YURIDIS NORMATIF PUTUSAN PERKARA MAHKAMAH AGUNG KONSTITUSI RI No. 004/PUU-II/2004

The authority of justice in Indonesia is executed by the Supreme Courts and the justice boards/body under the Supreme Courts, including the general justice, religious affairs justice, military justice, state administration justice, and the Constitution Court. According to certainty in the Act of Tax Court, Article1, clause (5), tax dispute refers to the legal dispute arising in the taxation affairs between the tax payer or the body responsible for the tax with the government executives ( Directorate General of Tax) as the consequence of the issue of the decree for the appeal to the Tax Court in accordance with the tax Act, including the charge against the execution of collection in accordance with the Act of Tax Collection by force. The formation of Tax Court is designed by the Executives, in this case, the Department of Finance, specifically the Directorate General of Tax which has the right to issue law more technical about tax accord to Article 14, letter A, President Decree no. 44 year 1974, concerning the basic organization of the Department. Based on it, it is clear that in addition to execute the government rules and policy, this body has to execute judicial rules and policy. This is against the principles of Judicative Power/Authority in Indonesia, which clearly states that this body should be under the Supreme Court. Therefore. It is suggested that the Act No UU no.14 Year 2012 concerning Tax Court be revised in accordance with the system of Power Division of Justice as stated in 45 Constitutions.

Autoritarismo, controle e vigilância: Jacob Gorender na mira da repressão (1940-1980)

O propósito do artigo é demonstrar através da análise dos documentos de natureza repressiva, os elementos destacados pela Justiça Militar para compor o rastro de perseguições aos intelectuais entre outros setores sociais que ousaram desafiar a (s) Ditadura (s). O mapeamento completo, envolvendo as estratégias de combate ao “comunismo”, englobando conhecimento dos partidos e dos seus quadros militantes, foi acumulado por órgãos policiais e militares ao longo do século XX. Buscamos acompanhar, através desses registros, a trajetória política do intelectual Jacob Gorender. Como jornalista, envolveu-se na discussão sobre a participação brasileira na II Guerra Mundial, ingressando em 1943 na FEB. Antes, porém, Gorender tornou-se comunista, recrutado por Mário Alves em 1942. Até meados dos anos sessenta, atuou como militante e dirigente do PCB, quando resolveu ingressar no PCBR, fundado em 1968. O historiador, nos momentos iniciais do Golpe de 1964, já com a vida devastada pela Comunidade de Informação e Segurança, experimentou a clandestinidade, prisão, tortura e censura aos seus escritos entre outros abusos que atingiram também os amigos mais próximos, companheiros de partido e familiares. O cruzamento dessas informações com os textos memorialísticos ajudam a compreender as artimanhas da repressão política e os diferentes projetos de Revolução em curso.

Top Ten Reasons Sen. Gillibrand's Bill Is the Wrong Solution to Military Sexual Assault

Over the years Congress has made plenty of efforts to “improve” the military justice system for a variety of reasons, but few matters have generated more offerings than did the Pentagon’s report this past spring of an estimated 26,000 victims of “unwanted sexual contacts” in the armed forces. Some initiatives to address this very critical problem, like the bipartisan effort of Senators Barbara Boxer and Lindsey Graham, look promising; others, not so much. However, none are as misguided as Sen. Kirsten Gillibrand’s proposal. Indeed, it is hard to think of a proposal that could be more wrong for the military, and especially for the victims of sexual assaults. Sen. Gillibrand wants to remove commanders from the military justice process and replace them with a new, 600-person bureaucracy which would have lawyers as the “deciders” in disciplinary matters involving sexual assault and other serious cases. Her proposal is based on a popular narrative that is filled with false impressions such as the notion that the majority of the estimated 26,000 victims are women (actually, 53% are men); that military personnel do not “trust” their commanders (polls show they do); that the handful of foreign militaries who have removed their commanders have shown progress in combatting sexual assault (they have not); and that prosecutor-centric systems like the one Sen. Gillibrand wants to impose on the military are more successful than the military’s in suppressing sexual assault (the evidence shows they are less so). Most troubling is the fundamental lack of a real understanding in Sen. Gillibrand’s proposal as to what solves problems in the armed forces. It is axiomatic in the military that everything important is commander-led. This is particularly true with respect to the matters of morale and discipline that are so central to the warfighting capabilities for which commanders – not lawyers – are ultimately responsible and accountable. Lawyers, even those thoroughly expert in the law and indisputably well-intentioned as those serving in the armed forces, simply do not, and could not, have the broader insights and experience that commanders acquire through years of leadership, and by bearing the grave burden of sending young Americans in harms’ way to do the Nation’s business. Commanders are uniquely and irreplaceably equipped to exercise disciplinary authority in what the Supreme Court recognizes as the military’s “separate society.”This essay argues that combatting sexual assault through the military justice system is just too important to be anything other than commander-led, and offers ten reasons why Sen. Gillibrand’s proposal will hurt not only the military’s readiness and warfighting capability, but also sexual assault victims. In addition, it describes legislative initiatives that should be examined, but are not being considered by anyone in Congress.

Military Justice: Cases and Materials + Statutory Supplement 2nd edition

Military Justice: Cases and Materials + Statutory Supplement 2nd edition

Keeping up with the Common Law O'Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms

Critics of the Canadian military justice system have recently suggested that Canada should follow developments in military law that have taken place in Ireland, particularly with respect to the expansive procedural rights that are now afforded to accused persons who face summary forms of trial within the Irish system. This article demonstrates that these calls for comparative-based law reform fail to appreciate important differences in the Irish and Canadian environments within which the respective military justice systems operate, specifically through a case study that discusses the distinct international human rights law obligations that bind the two states, and the unique labour climates within the two armed forces. Ultimately, after illustrating how comparative law alone cannot provide a compelling rationale for military justice law reforms in Canada, the article refers to the Irish/Canadian case study in order to argue that knowledge of comparative law is perhaps more useful to responsible scholars in order to deconstruct law reform proposals rather than to generate new law reform ideas.

The Mauthausen Trial: American Military Justice in Germany

The Mauthausen Trial is a well researched, carefully crafted and thought-provoking book. This concise volume would have been even more compelling if the author had provided additional comparative context and developed a more sharply profiled assessment of his case study. In 1946, a US military commission court tried sixty-one Nazis for war crimes committed in the Mauthausen concentration camp. Having spent an average of four hours on each case, the court handed down fifty-eight death sentences. Forty-nine of the defendants were executed in May 1947, turning the proceedings into the most deadly trial in US legal history. The nine remaining defendants were sentenced to life imprisonment but quickly set free, along with many other German war criminals in Allied custody. The West German population and its elected officials had insisted on the release of the Nazi criminals in exchange for West German allegiance in the Cold War. Tomaz Jardim clearly acknowledges the shortcomings of the Mauthausen trial. The military commission court operated according to what Jardim euphemistically calls ‘relaxed rules of evidence’ (p 115). It accepted testimony based on hearsay, evidence about crimes not covered by the courts’ mandate, and confessions extracted under dubious circumstances. Moreover, the sentences were not subject to an independent appellate process and instead reviewed within the army chain of command. Finally, as a result of the trial strategy developed by the prosecution and accepted by the court, ‘the burden of proof shifted onto the accused’ rendering the charges ‘virtually unchallengeable’ (pp. 172, 170).

The Unusual Punishment: A Call for Congress to Abolish the Death Penalty Under the Uniform Code of Military Justice for Unique Military, Non­-Homicide Offenses

The Unusual Punishment: A Call for Congress to Abolish the Death Penalty Under the Uniform Code of Military Justice for Unique Military, Non­-Homicide Offenses

Safeguarding the Commander's Authority to Review the Findings of a Court-Martial

“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military. The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries. Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence. Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law. Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions. If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.