All military forces require a code of laws and regulations for the maintenance of discipline and good order. This may be considered military law which should not be confused with the term martial law. Military law has now come to be the special body of rules applicable to the armed forces of a state governing the terms of service, discipline, and military punishment of specific service offences which are often not considered criminal by the ordinary law of the land.
In Rome, military law derived from the imperium of magistrates in their capacity as commanders of the Roman military forces. It was initially somewhat arbitrary and harsh depending very much on the individual commander. However, Roman military law became much more formalized under the digest and codex of the Emperor Justinian. In the Middle Ages in England, the maintenance of discipline was administered by the court of the constable and the marshal who applied the ordinances and articles of war as issued by the sovereign or the commander appointed by the king. The earliest examples of these are the charter drawn up in 1189 by Richard ‘the Lionheart’ for the regulation of his forces going on the Third Crusade.
The European armies of the 16th and the 17th centuries tended to be a multinational mixture of mercenaries, thus each contingent usually applied the rules of the army's supreme commander according to their own procedures. The articles of war of Maurice of Nassau and Gustavus Adolphus, served as the basis of most forms of military justice until the 19th century. Their ideas were spread by the many men whom they commanded. During the British civil wars, the ordinances of the royalist and parliamentary commanders were both based on these continental ideas and therefore almost exactly the same. The impressive discipline of the New Model Army was not due to an improved code of military justice but due to the fact the articles were so rigorously enforced.
In England, as mentioned above, military justice originated in the courts of the constable and marshal, but the gov-ernment began to take over the drawing up of codes of rules of the military from 1642 onwards. In 1689, the jurisdiction of the constable and marshal courts was declared obsolete and military law was legalized by the introduction of the Mutiny Act, normally passed annually, to which the prerogative articles were subordinate. In 1777, the power to make articles of war was embodied in the Act. In the British army, the articles of war were replaced in 1881 by the Army Act. The Army Act is an Act of Parliament dealing with the discipline, court martial, and enlistment of the army and has in itself no permanent operation. It is annually brought into operation by the Army Act (which was reformed in 1955 to become the Army and Air Force Act). By this system of annual acts, parliament retains control of the land forces of the Crown. The Army and Air Force Act is part of the statute law of England and is construed in the same manner and carried out under the same conditions as the ordinary criminal law of the country, although discipline is administered by courts martial, not the civil courts. The articles of war continued to be in use by the Royal Navy until 1957.
The first Congress of the USA established courts martial to enforce the discipline of the army and navy. In 1775 and in 1806, articles of war were adopted modelled on the British Mutiny Act and articles in force at the time. Military law is now administered in the USA under the Uniform Code of Military Justice adopted in 1951.
The jurisdiction of military law is not necessarily confined to the discipline of members of the armed forces. It extends in varying degrees under different countries' systems to all offences committed by members of the military and offences that damage discipline committed by civilians. In countries which operate a system of conscription, soldiers who fail to answer their initial call-up are liable to military jurisdiction. Civilians become subject to military justice in a number of ways. In Italy and Turkey, treason and rebellion can be dealt with under the military code. In Norway, breaches of the Geneva Conventions are dealt with under military law. In a number of countries, civilians in a war zone or theatre of active operations can come under military jurisdiction. In other countries, only civilians associated or working with the armed forces come under Service Law. Under British military law, civilians accompanying armed forces stationed in a foreign country, including civil servants and war correspondents, can be tried for offences against the military community. In some countries, such as France, Germany, and Austria, civil courts deal with all crimes, military or civil, during peacetime.
The logic and practice of military justice have come under increasing attack. There have been assertions that both summary military justice, meted out by commanding officers, and courts martial themselves are inherently prejudiced against the defendant. Most western armed forces have liberalized their systems of military justice in recent years by such measures as reducing the scope of summary jurisdiction and improving the quality of defendants' representation at courts martial.
— Chris Mann/Richard Holmes
