Military Law

I INTRODUCTION

Military Law, a law which governs members of the armed forces in peace and in war, at home and overseas. It also applies to certain civilians in wartime. All states require special rules and regulations for maintaining and disciplining their armed forces.

II PEOPLE SUBJECT TO MILITARY LAW

The jurisdiction of military law is not confined to members of the forces, but also extends to certain categories of full-time and part-time employees of the army, while it is on active service.

Prisoners of war (POWs) fall under military jurisdiction. The terms of the Geneva Convention of 1949 state that they must be tried for alleged offences by military courts, except when the laws of the country that detains them permit members of its own armed forces to be tried by civil courts for similar offences. POWs can only be sentenced to penalties which could have been imposed on the armed forces of the detaining country for the same offences.

III HISTORICAL BACKGROUND

In Britain during the Middle Ages, when armies were only raised for specific campaigns, the military law did not exist in a time of peace. At the outset of every campaign a set of Rules and Ordinances was issued by the king, or by his commander-in-chief, setting out a code of offences and punishments which would remain in force until the army was disbanded. The earliest known code was proclaimed by Richard I in 1190 when his army was about to sail for Jerusalem. The ordinances of Richard II, which were proclaimed almost a century later during the Hundred Years’ War, are of particular interest as they include purely military offences, such as disobedience to orders and leaving one’s post without permission. It was enacted by a statute of Edward I in 1279 that, by virtue of the royal prerogative, the sovereign had the right to command all the nation’s military forces and also had the authority to regulate and discipline the army. Subsequently, the ordinances became known as the Articles of War.

The early Articles prescribed punishments of great severity—death or loss of limb being the penalty for almost every crime. Apart from officers, there were very few genuine volunteers in the army in those times. The soldiers were usually recruited from the undesirable elements in society. Prisoners were often released from jail on condition of enlistment, and convicted criminals were sometimes offered the alternative of having sentences passed on them or joining the army. In the Tudor period “rogues and vagabonds” were habitually impressed for military service.

During the first few years of his reign, at a time of peace, Charles I appointed special commissions to try soldiers, sailors, and civilians according to military law. When both houses of Parliament addressed the Petition of Right to the king in 1628 this practice was one of the matters about which they complained. In 1640 a committee of judges and lawyers expressed the opinion that “martial law could not be executed in England but when an enemy is really near to an army of the king’s”. In spite of this, Charles I continued to believe that the power of imposing martial law emanated from the royal prerogative and could not be challenged by Parliament or by the courts.

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At the outbreak of the English Civil War in 1642, both the Royalist and the Parliamentary armies had their own Articles which were, in fact, almost identical. After the Restoration in 1660, most of the soldiers on both sides returned to their peacetime occupations and there was no longer any necessity for a code of military law. However, in the interests of discipline, Parliament permitted Charles II to issue a new set of Articles for the governance of the small force of guards and garrisons which remained. Further Articles were published at intervals throughout the reigns of Charles II and James II.

On the accession to the throne of William and Mary in 1689, the Declaration of Rights, which had been approved by both Houses of Parliament, decreed that the keeping of a standing army in time of peace, without parliamentary consent, was illegal. Several factors, including the threat of a French invasion, persuaded the politicians of both main parties a short time later that Britain must be properly protected. The first Mutiny Act, which was passed as a temporary expedient in 1689, sanctioned the existence of a standing army and acknowledged the legality of the military courts. This was followed by a succession of further mutiny acts which preserved the constitutional status of the permanent British Army and the legitimacy of military law. A clause in the Mutiny Act of 1715 conferred on the king the power to promulgate Articles of War for the better government of his forces, and so granted statutory authority to a long-established convention. Articles could be made under this Act, and under subsequent Mutiny Acts, either in the time of war or in the time of peace.

In 1878 a select committee was appointed to carry out a thorough revision of every aspect of the military law. As a result of the committee’s recommendations, the Army Discipline and Regulation Act was passed during the following year. It replaced the latest Mutiny Act and the Articles of War but restored their principal provisions in an amended and consolidated form. The military code was from then on embodied in a single statute, instead of being partly contained in an Act of Parliament and partly in the Articles of War. The Army Discipline and Regulation Act was repealed and superseded in 1881 by the Army Act, which has remained the foundation of British military law ever since.

The Army Act was only to remain in force for 12 months and has since had to be renewed annually by both houses of Parliament. It stated that the maintenance of a standing army in peacetime without parliamentary consent was illegal, thus perpetuating the old and cherished constitutional principle. Under the Act, the Crown was still enabled to formulate Articles of War, but the power to do so was so circumscribed that it became ineffective.

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It was stated at the commencement of the original Act, and it has been repeated in subsequent Army (Annual) Acts, that their purpose was “to provide, during 12 months, for the Discipline and Regulation of the Army”. They then set out a list of the offences which could be committed by a person who was subject to military law, the method of trial by court martial, the punishments which might be inflicted, and the procedures for carrying out the various sentences.

IV TRIAL BY COURT MARTIAL

British military courts are of three kinds. The most serious offences are tried by a General Court Martial, which is composed of no fewer than five officers and usually sits with a civilian legal adviser known as a judge-advocate. Lesser offences are tried by a District Court Martial, which consists of no fewer than three officers and has limited powers of punishment. A Field General Court Martial can only be convened overseas or on active service when it is not practicable to try an offence by an ordinary General Court Martial. It is made up of three officers, or of two if more are not available.

Military courts follow the same procedure and observe the same rules of evidence as British criminal courts. Apart from their purely military jurisdiction, they can try an act of wrongdoing committed by a soldier, in any country, which would constitute an offence against British criminal law, except that the most serious crimes, like treason or murder, can only be tried by court martial when they have taken place abroad.

The British system differs from that of a number of other countries, such as Germany and Austria, where all offences committed by soldiers in peacetime, whether civil or military, are tried in civil courts. In France, the only crimes which come before the military courts are those committed by soldiers either in barracks or on duty.

Formerly, the British military law allowed no appeal of the verdict or the sentence of a court martial. However, since 1951 it has been possible for a soldier to appeal against his conviction, but only on a point of law. The appeal is heard by civil judges in the Courts-Martial Appeals Court. Such an appeal process is not unique to the British military code. For instance, in France and Belgium legal arguments raised in military courts can be referred to the highest civil appeal courts.


Contributed By:
Anthony Babington

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