courts martial

Tribunals that enforce the special laws and standards of conduct expected of soldiers, once more lax but now in general more strict than the civil courts governing non-military personnel. The singular is also commonly used as a verb to describe the process, as in ‘he was court-martialled for drunkenness’. The origin of this semantic awkwardness lies in the first military tribunal in Britain, the court of the constable and the marshal. During the 17th century the administration of military justice was gradually taken over by ad hoc committees of army officers, at first called marshal courts and later courts martial. These evolved into general courts with a wide jurisdiction, which could try all ranks, usually sitting with a judge advocate, a civilian lawyer who advised the court on matters of law. District courts had more limited powers and could not try officers.

The right of officers to be tried by their own kind was one of the most persistent sources of friction between civil and military authorities through the 19th century and, in Spain, well into the 20th. Few countries paid a higher price than Mexico, where the issue of military and ecclesiastical fueros (exemptions) bloodily dominated political life for the first 50 years of independence. Military courts elsewhere developed along less stark dividing lines. General and regimental courts martial were created in the Prussian and Austrian armies, with civilian lawyers acting as procedural auditors. In France and Belgium a civilian judge sat with the military members of the court. The courts martial system in the US army was modelled on that of the British, with general courts, sitting with a civilian legal adviser, exercising the widest powers, and district or special courts dealing with lesser offences.

Military courts in the armies of most nations are still comprised entirely of officers, although in the French army NCOs are allowed to sit as members, and if an enlisted man is being tried in the US army he can require, if he wishes, that a third of the members of the court should be enlisted men. Even during the 19th century, if an NCO or a private soldier was being court-martialled in the German army a set proportion of the members of the court had to hold the same rank as the accused. In Italy the permanent military tribunals were for the trial of non-commissioned ranks and special tribunals were appointed to try officers.

Few armies in the past permitted appeals against the decisions of their military courts. During the 20th century the pattern of military justice in most countries has moved closer to the procedures of the ordinary criminal courts. In Italy and the Netherlands the military courts of appeal are staffed equally by army officers and civilian lawyers, and in the USA, France, Belgium, and Germany appeals against courts martial convictions are heard by the civil appeals courts. In the British army, servicemen can now appeal against conviction or sentence to a specific court martial appeals court, which is manned by civil judges.

— Anthony Babington

Strictly these are courts administering military law, i.e. the rules applicable to members of the armed forces. However, the term has also been used to describe courts administering ‘martial law’. As early as the Wars of the Roses, powers were exercised by military commanders to try and to punish offenders in areas of conflict. In so far as there is any such principle as ‘martial law’, it can only be that necessity may on occasion be a defence.

Courts-Martial are the oldest system of justice in the United States, dating to the Continental Congress's decision in 1789 to continue the British system. One of America's most famous courts-martial, that of Benedict Arnold for using troops for his own personal gain, even predates that decision by ten years. The modern legal basis of courts-martial is the Uniform Code of Military Justice (UCMJ), adopted in 1950, and the Manual for Courts-Martial issued in the following year. Although the UCMJ is normally considered to be stricter than civilian laws, in a court-martial the defendant has the right to choose trial by a judge or by a jury of peers at equivalent or higher rank. Enlisted defendants also have the right to a jury that is constituted of at least one-third enlisted personnel.

There are three levels of court-martial: the summary court-martial, which can impose penalties of up to one month in prison; the special court-martial, which can impose penalties of up to six months; and the general court-martial, reserved for the most serious offenses, which can impose any penalty, including death. Since World War II, courts-martial have come to look more like civil trials. Professionally trained military lawyers, who must be qualified to try cases before a state's highest court, must be present at all general courts-martial. Review procedures have also been modified to come more into line with civilian practices. Many of these reforms were enacted to protect the rights of enlisted personnel. Since 1950, commanders can no longer impose confinements of more than one week without calling a court-martial.

Several courts-martial have become American causes célèbres. The court-martial of William (Billy) Mitchell in 1925 was a national media event. Mitchell, a brigadier general in the Army Air Corps, was tried for his outspoken criticism of the senior military leadership's alleged negligence in developing airpower. Although he was found guilty by his peers and resigned from the army, his trial highlighted the problems of entrenched bureaucracy and the army's failure to fully understand the new technology of aviation.

The court-martial of Lieutenant William Calley in 1970–1971 also became a national media event. Calley was charged with three counts of premeditated murder in the My Lai massacre of 1968, in which as many as four hundred Vietnamese civilians were killed. After a court-martial that lasted four months, Calley was found guilty and sentenced to life at hard labor. His commanding officer, Captain Ernest Medina, was acquitted of involuntary manslaughter (failure to exercise proper control over his men engaged in unlawful homicide) due to a mistake By the military judge. The Calley trial was the most care-fully followed court-martial in American history.

These famous cases were, of course, exceptions. The majority of courts-martial deal with the day-to-day jurisprudence of military communities. Over time, they have lost Many of the features that distinguished them from civilian trials and today they are broadly similar to civilian counterparts.

Bibliography

Byrne, Edward. Military Law: A Handbook for the Navy and Marine Corps. Annapolis, Md.: Naval Institute Press, 1981.

DiMona, Joseph. Great Court-Martial Cases. New York: Grossett and Dunlap, 1972.

—Michael S. Neiberg