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The field court martial of the Finnish 15th Brigade in July 1944.

A court-martial (plural courts-martial) is a military court. These military courts can determine punishments for members of the military subject to military law who are found guilty or may dismiss the charges based on the evidence and the case presented. Most militaries maintain a court-martial system to try cases in which a breakdown of military discipline may have occurred. Some countries, however, have no court-martial in time of peace: this is the case in France and Germany for example where civil courts are used instead.[1] 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 army's own soldiers. Additionally, most navies have a standard court martial which convenes whenever a ship is lost; this does not necessarily mean that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship would be made part of the official record. Many ship captains will actually insist on a court-martial in such circumstances.

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Make up of a court-martial

A panel of officers and enlisted persons may sit in judgment at a court martial, while the accused person is usually represented by an officer who may be a military lawyer.

Crimes under a court-martial's 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. Punishments for military offences range from fines and imprisonment to execution. Military offences are defined in the Army Act, Royal Air Force Act and Royal Navy Act for members of the British Military. Regulations for the Canadian Forces are found in the Queen's Regulations and Orders. For members of the United States they are covered under the Uniform Code of Military Justice (UCMJ). These offences, their corresponding punishments and instructions on how to run a court martial, are explained in detail based on each country and/or service.

Courts-martial in 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; although the last military execution was in 1958.

Courts-martial in India

Indian Army has four kinds of Court Martial - 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 offences except for murder and rape of a civilian, which are primarily tried by a civilian court of law.

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Introduction

The Indian Army is still following the system of military justice it inherited from the British though the law in the UK has changed to keep pace with the modern practices of justice. The right of the individuals enshrined in the Indian Constitution is not reflected in the laws that govern the personnel of the armed forces. The Army Act 1950 especially the provisions relating to summary courts martial are in essence a continuation of the then prevalent system with all its inherent defects. It denies the accused the minimum degree of decency and fair play that must be guaranteed in any democratic society professing to follow the concept of rule of law and causational system the military justice system off other democracies. Which are moving towards granting all the fundamental rights to the members of the armed forces have led to a demand for reviewing the existing military justice system in India- a system conceived to keep the native army under strict control.

Origin

The provisions for summary courts martial were not introduced into the regular army till after the mutiny in the Bengal Army in 1857. The discipline of the regular Indian Army had, for some time before that catastrophe, seriously deteriorated and it was noticed that irregular troops, especially the Punjab irregular Force, were in this respect in a much better state than their comrades of the regular army. After the suppression of the mutiny the reason for this difference was sought, and it was found to be the position of comparative insignificance occupied by the commandant of a regular regiment, who had practically no power to punish or reward his own men. In contrast the commanding officer of a regiment of the Punjab irregular Force had almost absolute power and could himself deal promptly and effectively with all military of fenders. This system appears to have had its origin in the union, frequent in those days on the Frontier, of the functions of deputy commissioner, political officer and military commandant combined in one and the same person. This union of power enabled the commanding officer to convict and sentence a military offender, and thereafter to issue a warrant for the execution of the sentence, which was respected by the civil and prison officials as an emanation from him in his civil and magisterial capacity. When a new Indian Army came to be organized on the ruins of the old, it was realized that the hand of the regimental commanding officer would have to be strengthened if the 'evils' which had affected the Army were to be avoided. With this object in mind summary courts martial were at first introduced tentatively and in 1869 established definitely as part of the legal machinery of the Indian Army. The procedure and powers relation to the summary court martial were contained in Articles 93-97 and 107 of the Indian Articles of War of 1869.

Courts-martial in the United Kingdom

In the United Kingdom ad-hoc courts-martial have, with effect from the implementation of the Armed Forces Act 2006 in 2009, been replaced by a single, standing Court Martial for all three armed forces.

The Court Martial generally tries serious offences, but an offence which would normally be dealt with by a Commanding Officer can be referred to a Court Martial if the accused person requests. The Court generally comprises a Judge Advocate and between three and seven warrant officers and commissioned officers. The members of the court decide the facts of the case, like a jury and, after conviction, vote on sentence along with the judge advocate.

Previously there were two types of courts-martial: the District Court-Martial (DCM) which could punish the accused with up to two years imprisonment, and the General Court-Martial (GCM) which could punish the accused with up to life imprisonment if the offence is serious enough. During World War I there were a further two Courts-Martial. The Regimental Court-Martial (RCM), which rarely sat, and the Field General Court-Martial (FGCM). The FGCM consisted of three officers, one of them normally a Major who acted as president.

Capital punishment

See also: Capital punishment in the United Kingdom

There is no capital punishment in the United Kingdom military. Prior to its complete abolition in 1998 it was available for six offences: Serious Misconduct in Action, Communicating with the Enemy, Aiding the Enemy or Furnishing Supplies, Obstructing Operations or Giving False Air Signals, Mutiny and Incitement to Mutiny or Failure to Suppress a Mutiny, but was never used after the general abolition of the death penalty in 1965.

Courts-martial in the United States

The Uniform Code of Military Justice (UCMJ) defines military offenses and trial procedures for courts-martial.

As in all United States criminal courts, courts-martial are adversarial proceedings. Military lawyers of the Judge Advocate General's Corps (JAG) representing the government and appointed military lawyers representing the accused present and argue relevant facts, legal aspects, and theories before a military judge. The accused can also hire civilian representation at her own expense.

The lawyers must follow military rules of procedure and evidence as allowed by the presiding judge. During these trial proceedings, the military judge decides questions of law. In non-capital cases, the accused may request to be tried by the military judge alone or by a jury, however, discretion in granting such request lies with the military judge. A court-martial jury is called a panel of members. This panel decides questions of fact as allowed by law, unless the accused chooses to be tried by judge alone, in which case the judge will resolve questions of law and questions of fact. Both the court-martial members and the military judge are members of the armed forces. Members of a court-martial are commissioned officers, unless the accused is a warrant officer or enlisted member and requests that the membership reflect her position by including warrant or enlisted members. Only a court-martial can determine innocence or guilt.

After the American Civil War, the only U.S. soldier executed for desertion was Private Eddie Slovik.

Levels of courts-martial

Three levels of courts-martial can be convened depending on the severity of the offense(s): Summary (which can confine junior enlisted to up to 30 days), Special (which, depending on the charges, can confine an accused up to a year and give a bad-conduct discharge to enlisted) and General (which, depending on the charges, can sentence an accused to death or life imprisonment, and give a bad-conduct or dishonorable discharge or a dismissal to officers). Officers are not tried at summary courts-martial and enlisted members have an absolute right to refuse summary court.

Unlike federal courts established under Article III of the U.S. Constitution, a court-martial is established under Article I and does not exist until its creation is ordered by a commanding officer. Such officers are called court-martial convening authorities. The legally operative document that a convening authority uses to create a court-martial is called a court-martial convening order.

General courts-martial require an investigating officer, with at least the rank of captain (naval lieutenant), or other officer with legal training, to hold a hearing to review government evidence which outlines the elements of the alleged crime. These investigations are referred to as Article 32 hearings because they are described in article 32 of the Uniform Code of Military Justice (UCMJ). In the Air Force and Navy the Investigating Officer is usually a JAG officer, in the Army it is usually a non-lawyer. The accused is present and has an attorney to examine evidence and testimony. The Article 32 hearing is a major discovery tool for the defense. The investigating officer then sends the report with recommendations to the convening authority, who may then refer the case for court-martial.

Convening authorities may decide on actions other than court-martial, especially when the government case is weak. The charges may be dismissed or disposed of at a lower level, and include actions such as administrative reprimands, summary courts-martial, nonjudicial punishment, or administrative separation.

Courts-martial have universal jurisdiction over active duty military personnel, subject to the Uniform Code of Military Justice. This means that no matter where a service member is in the world, if he is on active duty, he can be tried by a court-martial. Under new laws to deal with contractors operating abroad with the armed forces, some civilians are also subject to the Uniform Code of Military Justice.

If a service member is court-martialed and he feels that the result was unjust, then the service member can submit his case to the convening authority, which is the officer (usually a general or admiral) that originally had the service member court-martialed. This is similar to asking a civilian governor for clemency or a pardon. After clemency requests the service member may submit his case for review to the Court of Criminal Appeal for their branch. See Army Court of Criminal Appeals, Navy-Marine Corps Court of Criminal Appeal, Air Force Court of Criminal Appeals, Coast Guard Court of Criminal Appeals

Cases can be further appealed to the United States Court of Appeals for the Armed Forces and the Supreme Court of the United States.

As the final last resort, the convicted service member can ask for executive clemency also known as a 'reprieve', or a pardon from the President.

See also

Further reading

Notes

External links


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