In local contexts, law enforcement and maintenance of security are not tasks bestowed on the military forces. The military forces work towards restoring justice and security in regions of conflict or crises (Winthrop, 2000). Whether formally or informally enacted, the law in any given society is an unending structural setup that guards and stipulates rules and regulations within which the armed forces operate. Full adherence to law and order and a high sense of efficiency and operational capability remain to be critical aspects of the operations of the armed forces. Most countries and states have unique bodies of law whose purposes are to enforce the rule of law and the wellbeing of their citizens (Joseph, 1978). Members of the armed forces play critical roles in enhancing securities of states, regional and global units (Woodward, 2002). Proper structures of governance are crucial in governing the demeanor of the members of the military units with the aim of enhancing the common good of all people in all states. Whether a given state uses exceptional arrangements or civilian legal systems of law enforcement to enforce military orders, it is of utmost importance for all law enforcers to understand the importance of military law and justice systems.
According to Woodward (2002), there exist both military and non-military laws. The two are valid and relevant in their own unique ways (Madsen, 2008). Military law is governed, guided, and protected by the law of the land as well as other international laws. According to Petraeus (2006), there are rules that should not under any circumstances be broken. Military laws exempt the military forces from becoming victims of their own actions while in their lines of duty. Documented reports show that certain acts of the militaries have in the past been in total contravention to the rule of law. These reports indicate that certain militaries have committed acts that are against humanity in the course of wars or humanitarian responses (Wiener, 1989). Acts against humanity comprise atrocities like rape and murder. Greene (2007) explains that justice is the final result of a legal process. On the other hand, Madsen (2008) explores the fact that a legal process refers to the entire proceeding that often culminates into what is commonly known as the law. In most instances, justice is what the courts of law give to the accused or complainants based on the final analyses and sampling of the files of the cases under scrutiny by the concerned judges. Criminal laws, civil laws, and constitutional laws all address vital issues that affect the lives of people in modern societal setups. The United States’ rule of law as outlined in the US Constitution effectively legalizes the existence of a military justice system and the formation and effective functioning of the armed forces. As outlined in Section 8 of Article 1 of the laws of the United States, Congress makes and amends laws governing the military justice system.
Military justice and criminal law are vital components of the armed forces that help to enhance discipline, accountability, law, and order, and strict focus on the legality of any military legal undertakings. The two aspects ensure that members of the armed forces fully adhere to their stipulated work frames (Fuger, 1992).Unlike other police units, the armed forces continue to play vital roles in dealing with very sensitive security matters in given societies. While justice law focuses on legally guiding the actions of the military forces, legal justice helps to ensure that the military personnel is fully accountable for their actions and that they are held accountable for any offenses committed while in their lines of duty. Military justice and military law are fundamental components of the law.
Origin of military law and justice
The ancient Persian military was never governed by strict rules and regulations or any form of laws. The Persian military began to commit atrocities against humanity and especially against women. This was because women were not allowed to join the military as they were perceived to be comparatively inferior to men. This was in terms of the tasks undertaken by their male counterparts in military operations. This led to the creation of the first military laws in Persia to safeguard civilians from unlawful acts by the Persian military. Further afield, the United States had often had a unique approach to global security issues. The clamor to have a unique way of managing the affairs of its military by the US-led to the creation of military laws and a justice system for its military. Both federal and state laws approached military issues with a lot of keenness. Military interventions by the U.S focused on enhancing the reliability and effectiveness of the security processes (Greene, 2007). Over the years, there had been questions as to whether military forces could be used to quell unrest in delicate security situations, especially those in which the lives of civilians may have been endangered. The 1999 NATO and the United States of America bombings and peace campaigns in Serbia and Montenegro demonstrated great differences from what had been previously known as peaceful and bureaucratic-military interventions.
The US military had in the past been associated with inhuman and unreasonable acts. These acts had depicted negative images of the US military (Greenberg & Dratel, 2005). The inhuman acts perpetrated by the US military in Kosovo were representations of the raptures and paradigm shifts in the overall relationships among international organizations and institutions of law, the military forces, and the laws themselves. The experiences of the US military in Kosovo ought to have acted as major reminders of what was expected of the US military regarding the war in Afghanistan and Iraq. In these instances, military law was never imposed in ensuring that the legality of the military actions was enhanced and that military justice was upheld by all the concerned parties (Kiszely, 2008). Besides the military actions in Kosovo, it was evident that the demands for military law and justice were in existence long before the beginning of the First World War, the Second World War, the Gulf War, and the Cold War.
The importance of military history
Previously, the militaries in the United States had been receiving lower levels of protection compared to that of civilians. The disparities caused a lot of dejection and poor performances by the armed forces (Schlueter, 2008). They provoked the urgency of establishing a legal framework for the military that would address the plight of the military forces. As of 2002, the U.S Army had a military population of 370,300 people, army personnel of 479,400 people, and a total of 1,366,000 armed forces officers. This number included the marine forces, the United States of America Coast Guards, navy officers, and the homeland security persons among others. The Global Nuclear non-Proliferation Treaty recognized the U.S and gave it the mandate for its military to maintain and use a sizeable arsenal of tools of mass destruction.
History of military justice and law Military law
The implementation of military laws and justice systems began long before the emancipation of America’s Civil War and the emergence of civic groups such as the Ku Klux Klan. In the U.S., rules that directly related to military justice were governed by the famous Lieber Code of the year 1863. Later on, popular articles such as the Lieber Code Article which addressed the plight of the military and reinforced the need for justice were replaced by the UCMJ. The UCMJ was the United States federal law platform for governing the code of conduct of the military forces. At the time, common offenses that were catered for by the UCMJ included misdemeanor and major legal crimes by the US military. Prior to the formal use and recognition of the military law, non-judicial punishments were commonly used as means of enhancing law and order. Like most law enforcement agencies, military justice emanated from the constant demand to establish a security unit that aimed at addressing stringent and extremely sensitive security situations. The emergence of the United States Army Court for both local and international criminal cases was a result of the unending demands by the military to safeguard themselves and the failure by the U.S Security Council to safeguard them. The situation was worsened by the fact that for a long time, the U.S continued to ignore the concept of the internal law for the military and instead opted to directly engage the humanitarian security concerns on its military forces. According to Madsen (2008), the concepts of military justice and law appeared to lack legitimacy due to the continued failure by the government of the U.S to uphold its key operational principles. The importance of the U.S military law could be outlined from the ever-increasing number of army accidents.
Prevention of such accidents and the enhancement of the justice system underscored the importance of offering fair and open justice mechanisms. At some point in the history of the U.S, members of the public were constantly arrested by the US government for their perceived actions of sedition. These arrests provoked the public into believing that the government was overreacting to minor security concerns. Increased ground-level insecurity also demanded that an improved security level be implemented. U.S military wars in Bosnia, Haiti, and Somalia were often characterized by the U.S government having to seek authorization from the U.N Security Council and ensure that its security interventions were in line with the U.N Security Charter. The emergence of the peace agenda played a key role in ensuring that military justice and law came into force (Sweeney & Byrne, 2006). Traditionally, law enforcement was never a preserve of the military agencies in the United States as the police forces were duly charged with the responsibilities of ensuring that law and order prevailed in the country and all the states.
This was similar to the US Marine Corps and navy agencies which were never allowed to engage themselves in domestic security matters. To safeguard the common good of citizens, the military law came into force in an effort to ensure that relief agencies such as the Red Cross continued with their humanitarian operations in various parts of the world. The military was to safeguard the staff of the Red Cross in the course of its work and not to interfere with its operations (Murphy, 1996). This was evident in Somalia. The United States had through UNITAF and UNISOM focused on disarming the armed militia groups in Somalia while, at the same time, ensuring that it fully safeguarded the lives of innocent citizens in the country (Sharrock, 2008). Though very complicated, the disarmament of the warring factions in Somalia contributed to armed clashes between the military of the US and some of the militias. This raised serious concerns about the welfare of civilians and military personnel in other areas of the world. The UCMJ had been in operation for more than fifty years in the American Justice System. The formation of the UCMJ was a result of the increased demand for a unified system of legal court-martials for the defense forces. UCMJ became a code of conduct that governed the military forces in the United States of America.
The Uniform Code of Military Justice
The first Secretary of the Department of Defense in the United States of America had felt the need to have common rules and regulations that would be applicable to all the branches of the armed forces. Since the Second World War, the soldiers had had unpleasant experiences with the then-existing military systems. Soldiers were not adequately protected by the then prevailing military systems. This informed the need for the formulation of systems that would look into the issues raised as well as address the efficiency and effectiveness of the military systems. Different organizations in the United States of America volunteered to help in the formulation of guidelines and regulations of the US military. They included the American Legion, judges, and others. This gave birth to the Uniform Code of Military Justice. Today, several bodies are involved in foreseeing the effectiveness of the Uniform Code of Military Justice. The president and Congress are mandated to formulate rules that govern the military. The president is the commander in chief of the military. The Code Committee is mandated to look into the operations of the Uniform Code of Military Justice. The Code Committee performs annual surveys in the military. The surveys comprehensively analyze in detail how military operations are to be carried out. The Joint Service Committee, an advisory body of the Code Committee, advises the latter on various matters that affect the military. Any proposed amendment of the Uniform Code of Military Justice must be evaluated by the Joint Service Committee.
The Uniform Code of Military Justice clearly stipulates how offenders of the military law are supposed to be treated and apprehended. For example, if the president dismisses a military officer and the said officer feels that he is wrongfully dismissed, the latter is allowed to make a written application to the court-martial seeking justice for wrongful dismissal. The Uniform Code of Military Justice also looks into matters of the jurisdiction of the court-martial. The jurisdiction normally comprises active soldiers, reserve soldiers, and military academy cadets. Additionally, it also addresses the composition of the court-martial which usually comprises a military judge, legal specialist, defense counsel, and trial counsel among others. The Uniform Code of Military Justice outlines the person or body that is mandated to convene a court-martial. The trial procedure is clearly outlined in the Uniform Code of Military Justice. This includes the investigations of the cases. Charges must be well examined before they are brought to the court-martial. The roles and the responsibilities of each member of the court-martial are also defined. The hearing of the defense motions and pleas from the accused are directed by the Uniform Code of Conduct. The court-martial must then determine if an offense took place. The martial must prove beyond reasonable doubt that an offense was committed based on the evidence presented. The Uniform Code of conduct also states that all members of the court-martial must take an oath stating their willingness and faithfulness to perform the duties bestowed on them by the court-martial.
The offender is protected from unlawful infringement against his or her rights such as intimidation from senior staff during trials. The offender’s punishment may include demotion from his or her rank. An offender may also be compelled to forfeit some of his or her pay as part of punishment given by the court. He or she may be given additional duties as punishment. The offender may also be given restrictions like being barred from traveling abroad. Military justice There are various sources of military justice. They include the United States Constitution, the Uniform Code of Military Justice, court decisions, and articles of war among others. The main objective of military justice is to advocate for justice. It seeks to ensure that discipline and good conduct are maintained in the armed forces. Military justice ensures that strong national security is maintained. The United States Court of Law has a special wing that focuses on addressing the legal concerns of the armed forces. This has led to the construction of a new legal framework that focuses on enhancing efficiency and ensuring that all offenders are legally dealt with and victims of military actions access justice through the same legal framework (Gilligan, 1990). Unique, sensitive, and complex situations demand the implementation of urgent legal measures.
While other forms of laws tend to offer substandard treatment to law offenders which could result in unfair judgment, the existence of military justice helps to ensure that fairness in all justice matters is enhanced (Rouleau, 1996). For instance, issues concerning members of the military who become disabled in the course of their military work and those who retire from service are fairly addressed by the Military Justice System (Petraeus, 2006). Other issues that are addressed by the Military Justice System include divorce and the disappearance of members of the military while in the course of their duties. Military justice also involves the use of non-judicial punishment and combat mechanisms (Rumsfeld, 2002). Military law helps to ensure that military processes are reliable, smooth, and cost-effective. Lack of military justice would spell doom to any efforts that are made to enhance efficiency, discipline, and effectiveness in the entire judicial system. The best argument advanced by Kateb (2007) to prove that military justice is crucial to the armed forces contends that one can never be disciplined in any given environment and then become undisciplined and egotistic in a military garrison. A responsive and well-organized military justice system is crucial in enhancing any security situation. Unlike other systems of justice, military justice is built on the understanding that a lot of punishments for military officers do not in any way guarantee that the discipline of the military officers would be enhanced. Timeliness and accountability are crucial aspects of military justice. As Greene (2007) puts it, military justice and its effective application have the ability to reinforce accountability and timeliness in the military forces. This happens across all levels of the military security details (John, 1998).
By understanding that punishment helps to reinforce discipline, the military inculcates workable and fair structures in which its members can administer punishment to others and to themselves thus ensuring that fairness and mutual understanding are enhanced and that any forms of misconduct and other undesirable behaviors are effectively dealt with. This is based on the full understanding that trial counsels ought to effectively understand that the human element in the members of the military is of utmost importance in any form of litigation. In the United States, military justice is enhanced through the use of trial military processes, apprehension of the guilty parties, punishment to the offenders, and the use of a court-martial. By serving the broader framework of justice and enhancement of law and order, the military acts as a major component of the legal system that deserves unique privileges through the implementation of military law. The penal practices of the United States of America have been harmonized to conform to the established military ideals. Since human beings have natural tendencies of being disorderly in nature, the application, adherence to military justice, and punishment in the armed forces demand having a well-planned and monitored balance of military ideals. This would enable the state to fill any existing normative gaps between the ideal society and the disordered, real society in which the military forces operate.
Purposes of military justice and law
Through the implementation and practice of military law and justice, the military has proved to be very supportive of the justice system and efforts to bring order and discipline in society (Whiteclay, 1999). In the United States of America and many other countries across the globe, military justice has continued to play a crucial role in safeguarding the security interests of the concerned states. Regulation of the military forces remains to be a critical role played by both military justice and law. As a means of enhancing efficiency and effectiveness in the security forces, military justice and law not only safeguard the interests of the armed forces but also focus on ensuring that they operate in a safeguarded environment free from the fear of being victimized due to the acts they commit while in their lines of duties. The United States of America continues to focus on addressing the diverse challenges and uncertainties that hinder the efficiency and effectiveness of military law (Luttwak, 1996). The hostilities faced by the military forces make it impossible for them to remain effective if they would operate under the common law. In military justice and law, the legality of armed forces personnel to kill can be enforced by military personnel if the perceived offender is aggressive, violent, and unrelenting towards the rule of law. According to Kateb (2007), the formality of the application of legal military laws, formalized military justice proceedings, and clear articulation of laws are crucial aspects of military justice.
Military justice in the United States of America gives the military the mandate to handle offenses committed by the members of the armed forces. This helps to enhance adherence to the rule of law and order, decency, and the overall perception of the country’s armed military forces (Smith & Dee, 2003). In such a case, military justice becomes more effective and efficient in addressing the injustices and civil offenses that the armed forces commit. Unlike most civilian laws or authorities that focus on imposing military justice to citizens, military justice only serves to complement the existing civil authority. A legal situation in which the military authorities come into force is referred to as martial law. According to Winthrop (2000), martial law is a deadly condition that comes into force in times of civil unrest, outright crime against humanity, war, and uncontrollable emergencies. Rarely is martial law implemented? Its overall outcome is often deadly and unbearable to civilians (Higginbotham, 1983).
Besides offering a substantive avenue for undertaking punishment to lawbreakers in the military fraternity, military justice and law include crimes or offenses such as perjury, abuse of one’s powers, abuse of one’s privileges, irresponsibility when in the military force, intimidation, failure to undertake proper supervision, neglect of one’s duties, portraying uncouth behavior and refusal to adhere to given laws and orders as stipulated in the military laws and codes of conduct and ethos. In line with the military law and the need for military justice, Greene (2007) argues that the standards for punishment and evaluation of serious crimes for the military personnel are different from the ones used in determining the level and punishment to be accorded to offenders. Military justice establishes a uniform code of conduct that focuses on addressing the needs of the military (Kateb, 2007). Its effectiveness is enhanced by the fact that military justice focuses on addressing the needs, aspirations, and expectations of military personnel. Military justice recognizes the rights of the military personnel, diversity in the military-related justice systems, aspects of criminal laws with reference to the needs of the armed forces, and issues related to international legal and criminal laws. The end product of most military conflicts could be very serious hence the need to resolve them in amicable ways. Military justice also ensures continuous monitoring of the activities of the armed forces.
In the past, it was the prerogative of the heads of the militaries and not the governments to develop and maintain the militaries and ensure that the rules and regulations that governed military operations were fully adhered to. Besides limiting the size of the country’s military forces, Section 8 of Article 1 of the Constitution of the U.S offered the country’s Congress the legal mandate to cater for the common and legally acceptable welfare standards of the military. This partly explained the reason why enlistment in the U.S military unit helped to create a change in the accused and the defense’s legal proceedings as well as creating a contractual legal contract to safeguard the aspirations and common good of all concerned parties. This form of justice also increased the level of combat efficiency and cost-effectiveness of legal proceedings due to the streamlined modes of operations employed by the armed forces personnel. In the United States of America, military justice was aligned to other forms of laws with the aim of enhancing equity and eliminating any forms of biases that could have otherwise been experienced if the military law had been applied with total disregard to other existing states and international laws. Since the military and its code of conduct exposed the armed forces personnel to many risks, it was arguably unrealistic and unfair not to safeguard the interests of the military and ensure that all its operations were accorded special attention.
While Smith and Dee (2003) believe that military justice focuses a lot on the interests of the personnel and exposes civilians to a lot of risks, Sweeney & Byrne (2006) are of the opinion that military justice is a very crucial component of the law that helps to ensure that the security of the state is at its best. Sweeney & Byrne (2006) add that military justice works towards ensuring that there is a smooth interconnection between civil, military, and other forms of laws. Daily consideration of the forces must also be focused on addressing the health and security concerns of the forces. Members of the American military forces are to some extent subject to the normal civil jurisdiction. To bolster national security, unity, and trust in the US military, the United States of America’s military justice system ensures that all members of the armed forces remain subject to the country’s civil jurisdiction.
Civil, constitutional, internal and criminal laws are similar. However, military law is also governed by municipal law. The municipal law is the original law of a given country and it also incorporates international laws which spell out conventions and treaties made between states and countries across the globe. Modern military operations are undertaken in very complex and dynamic environments of social and legal practices. Military law and justice operate in an environment in which full understanding of the fact that the main decision-making processes are informed by a combination of laws, policies, and doctrines. Military law plays a pivotal role when dealing with critical security matters such as anti-terrorism and counter-insurgency issues. Overprotection of the law enforcement agencies gives a leeway for the country to be more insecure. The involvement of the military in the enforcement of the law is closely guided by the military law enforcement agencies. To safeguard the military against a possible backlash, military law provides legally recognized means of enforcing law and justice and ensuring that the military not only remains efficient, free, and effective but also remains focused on enhancing security mechanisms.
Service systems safeguard the military against any unavoidable crimes that may be committed when the armed forces personnel are in their lines of duties. Though different entry methods into the U.S military do exist, military law is applied without any form of impartiality with full understanding that the military legal system is the basic law enforcement mechanism. Apart from ensuring that law and order are enhanced, military laws act as intermediaries between different justice systems of states and countries. Since military law is mainly focused on the security status of non-domestic concerns, Falvey (1995) is in the agreement with the fact that if well applied, it fosters unity of purpose, common good between countries, and the establishment of a common purpose.
According to Madsen (2008), military law enhances international and regional cooperation resulting in economic growth, political stability, social wellbeing, mutual understanding, and unity amongst the concerned governments. This proves the fact that indeed military law is more efficient and that it grants more freedom to people by giving them opportunities to participate in critical matters of national or state security without fear of being victimized. Additionally, military law and justice are undoubtedly fairer than civilian laws which hardly address the needs of the civilians without focusing on the imposition of stringent security measures that cause a lot of inconsistencies to the civilian populations.
Military justice and statistics on military law
There are different statistics that outline the successes and failures of the military systems in the different states of the United States of America and other countries. Statistics indicate that victimization of the armed forces personnel largely affects the successes or failures that have been witnessed in the military forces. Indeed, military justice clearly focuses on enhancing an improved level of efficiency and cost-effectiveness thus ensuring that realistic and more cost-effective results of a given justice system are realized.
In line with the American FY 2009, Military Code of Conduct Report on the justice system, the SPCM, and GCM military cases’ load decreased by two percent (2%) from FY2008 and FY 2009 respectively. The slight decreases were a result of the subsequent reductions in the performances of the Naval Military Courts of Justice. The total number of SPCMs and GCMs increased in both the Air Force and the U.S Army. PCM recorded an increase of 16.38 percent from the FY 2008 to the new FY 2009. On the other hand, the US Navy recorded a 13 percent decrease in their cases’ enlistment rates while that of the SPCMs fell by 11 percent from the unexpected FY 2008 to the FY 2009.
The effectiveness of the military law was evident from the extent to which more and more people sought appellate reviews of their cases. The reduced acquittal rates of the military were clear indications of the effectiveness of the military justice and its rate of acquitting accused persons. Differences in services were also reflected in the diverse acquittals that had been done as different services had different acquittal rates. As of 2011, five in every six of the acquitted members of the US Armed Navy Forces belonged to the marine departments. Whiteclay (1999) argued that the efficiency with which the cases were handled was a sure indication that military justice was more efficient when applied in a streamlined and well-organized manner compared to other types of laws.
Variations in military justice were often not possible to ignore. Special military courts and the general court soldiers continued to record slight variations in their army, naval, air force, and coast guards conviction rates. In the views of Greenberg and Dratel (2005), this was proved by the fact that the army received the highest rate of convictions. The numbers of guilty pleas were high in the GCM cases which would have otherwise been redirected to SPCMs cases. In 2011, the number of navy court-martial increased by 1 percentage point compared to what it had been in the year 2010. The level of the courts to which some of the cases were referred seemed to have been lower than it should have been thus making the significance of such courts’ proceedings to be of lower standards.
The uniqueness of the military justice and law
Unlike any other form of justice, military justice has the uniqueness of focusing on external security concerns of the state. The justice system clearly outlines viable and very practical measures needed to ensure that the justice authorities effectively carry out thorough investigations and where applicable, prosecute serious criminals with crimes that are in line with military laws (Fuger, 1992). According to John (1998), such crimes could include crimes against people, sexual offenses, civil war crimes, and incidences of impunity (Kohlmann, 1996). It is also evident that military justice and law promote respect for people’s rights through the use of unified military security operations. Such operations ensure that there is a focus on security and stability in the neighboring nations and that the states’ neighbors and boundaries are fully safeguarded. Additionally, military justice systems help in safeguarding justice personnel from unwarranted retaliation, intimidation, and interference from external forces. Though in an indirect manner, Sharrock (2008) elucidates that such practices help to stem out any corrupt practices and also build very long-lasting civilian investigatory processes through uniquely identified mentoring and training ventures.
Military justice and law have the uniqueness of establishing the inimitable “train-the-trainers” operational programs. Through its process, military justice encourages the military personnel to train other people, share knowledge, train their peers and develop a sense of belongingness and accountability (Falvey, 1995). Rather than investing a lot of finances in training military forces in some basic skills, experts in the forces act as the trainers and thus practically impart new skills, virtues, and professional ethos in new recruits or volunteers (Falvey, 1995). This process is crucial in ensuring that all military practitioners have a sense of responsibility, accountability, and unity. As a result, it is relatively easy for the United States of America’s military to be coordinated and execute its mandate in a very efficient and cost-effective manner. Unlike other forms of law that are global in nature, military law is often customized to address the specific interests of a given country. For instance, in the United States of America and the United Kingdom, military laws are focused on safeguarding the interests of the state and ensuring that the country remains vocal in enhancing transparency and accountability in the internal military and justice systems (Sharrock, 2008). The US and the UK use military justice in ensuring that all their international relations are well safeguarded. Military law is unique in its operation as it applies to all military personnel.
This personnel includes those on active duty, guards, reserves, military personnel, and retired officers. As a result, offenses that are considered major and which are prosecuted in line with the military law include being absent on duty without leave, AWOL, and acting as a spy of the enemy as outlined in the rule of law. According to John (1998), military laws are critical as they not only focus on the welfare of the state and the military personnel but also focus on safeguarding the interests of all other parties. Fairness is highly regarded in the military. Consequently, it is evidenced from the research work of Duignan (1996) that military law gives fair treatment to all. Military justice also ensures that trial cases and the judgments passed are not determined by the levels of ranks of the military personnel but rather on strict analyses of the offenses committed. Though considered by its critics to be the discriminatory and lacking focus, Falvey (1995) clarifies that enforcement of military law and justice is critical and very relevant to the modern demands of the different security agencies. The Selective Security Act that was ratified in 1917 has continued to be relevant and conspicuous. Fairness, credibility, and transparency remained vital to all efforts that were being made towards the preparation of the Military Law Enforcement Act. Though initially considered to be irrelevant, the then military draft was crafted to enforce law and order in the military force (Wiener, 1989).
International Military Law Beyond intractability
It seeks to address international wars. It looks into the crimes that arise as a result of international wars.
International Criminal Tribunal and special courts
After the Civil War in Rwanda in the early 1990s that led to the Rwanda genocide, a tribunal was formed to bring justice to the Rwandese civilians in general. The same thing happened in Yugoslavia. These two were applications of international military laws.
International Institute of Strategic Studies
This is an international body whose mandate is to address military conflicts as well as political conflicts.
International Peace Operations Association
Its main objective was to preach and promote peace. It sought to engage conflicting parties in constructive dialogues. A good example is during the formation of the South Sudanese Government after the prolonged civil war and the eventual splitting of Sudan into two states. This led to the creation of the government of Southern Sudan. The International Peace Operations Association had the mandate to advocate for peace internationally, especially to the policymakers.
The Geneva Convention
During the war, civilians in the warring countries suffer most from the repercussions of war. The Geneva Convention seeks to protect such civilians including aid workers. It also looks into the conduct of the armed forces and regulates it.
Limitations of military law and justice
The fact that law enforcement is not undertaken by the armed forces has continued to make the process of law enforcement by the military very complex. Though the benefits of military justice and law are many, there are some limitations to their formation and implementation that need to be addressed in a timely and very amicable manner (Madsen, 2008). Addressing these challenges is crucial as it provides an avenue for addressing some of the key challenges that could otherwise hinder the realization of the goals and objectives of the use of military laws (Falvey, 1995).
The demands and limitations of military law and justice must reflect the common moral virtues or ethical values in all societies. While acts such as killing could be described as being legal in some instances, it is evident that blind applications of military law could destroy societies’ social fabric. Some of the social and ethical elements of the duties and responsibilities of military personnel such as the need for discipline, obedience, and loyalty could be misconstrued and thus be misused to serve certain people’s selfish interests (Bishop, 1974).
In some instances, the oath of allegiance that the military personnel makes sometimes contravenes other people’s values and religious beliefs. This leads to unnecessary conflicts which could result in disunity and division in the military circles. It is, therefore, crucial to ensure that the justice system in any given country is streamlined and that more universal approaches are used in the practice and implementation of military justice and law (Sharrock, 2008).
In a democratic state, little or no room is provided for the implementation of military justice. For instance, in the United States, while military law does exist, the American Constitution is not very clear on the extent to which military personnel can deal with challenges that the military personnel face. Lack of loyalty, obedience and adherence to other existing laws, political impartiality, and failure to constantly motivate members of the military are some of the major challenges faced by the military. Efforts need to be made in the implementation and enforcement of military law and justice (Bishop, 1974).
Military justice demands that certain criminal exemptions be done in order for the military forces to be effective. Such exemptions include being given immunity from some “criminal” activities that directly fall in their line of duties. An example is when the US SEALS invaded the Pakistan town of Abbottabad and killed Osama bin Laden. The US did not notify the government of Pakistan of its intended action prior to the raid in which the terrorist was killed. The action by the US SEALS was executed because the enemy was perceived to be very dangerous to the wellbeing of the people of the USA and hence the need for the US to invade Pakistan in the manner in which the US SEALS did. While this could be perceived as a way of ensuring that the military enhances internal security with no impartiality or fear of being accused of committing crimes against humanity, it brings the dilemma of whether or not it is fair to be biased when applying the rule of law (Fuger, 1992).
Unless clearly committed to the security of the civilians, favoring the military by giving them excessive immune to some “criminal” offenses could result in unrest and civil disobedience in the society. Worst still, there are no effectively implemented statutes of the challenges and limitations of martial offenses under the much-celebrated UCMJ. These are sure indicators of security lapses in the forces (Duxbury, 1997). Article 43 of the UCMJ Statute of Restrictions indicates that in line with no judicial punishment, an individual can never be punished in a situation where the legal military law exemptions the state so. Only offenses such as AWOL crimes in which the only allowed punishments are death sentences and failure to move in times of war lack statutes of limitation of military offenses.
Communication and exchange of views in the military are highly restricted and keenly monitored (Sharrock, 2008). Although these are well intended mechanisms of enhancing efficiency and state security, these legal demands deny the military personnel their basic human rights. The limited martial free speeches or military expressions hinder interactions and communication in the military (Wiener, 1989). Nevertheless, there needs to be prompt completion of military related investigations and immediate undertaking of military actions in a maximum period of two years. This would be a major boost to the efficiency and effectiveness of the operation of the armed forces and other military security agencies.
Investigation and prosecution of criminal issues over which different military departments have jurisdiction over are crucial in enhancing the efficiency of the operations of the military. Every state should endeavor to create an environment in which legal mechanisms permeate all the structural setups of the given country both in the military and the civilian domains. To achieve this, any given state should lay more emphasis in strengthening military justice and law for its armed forces. The departments of justice have the responsibilities of safeguarding the interests of the states and at the same time ensuring that the interests of the military personnel are put into consideration (Duignan, 1996). Crimes that arise from the operations of the departments of defense such as corruption, fraud against the defense and justice departments, and criminal offenses undertaken on military installations should be properly addressed by military justice and law in any given country in the world. Based on the above research and analyses, it is evident that military law and justice are vital in the enforcement of law and order in the different states of the world.
Bishop, J. W. (1974). Justice under fire: a study of military law. New York, USA: Charterhouse Publishers.
Duignan, K. A. (1996). Military Justice. Federal Lawyer 43. New York, United States of America: Cengage Learning.
Duxbury, N. (1997). Patterns of American Jurisprudence. Oxford, United Kingdom: Clarendon Press.
Falvey, J. L. (1995).United Nations justice or military justice. Fordham international law Journal 19.New York, USA: John Wiley Sons Inc.
Fuger, S. J. 1992. Military justice. Connecticut Bar Journal 66. New York, United States of America: Cengage Learning.
Gilligan, F. A. (1990). Civilian Justice v. Military Justice. Criminal Justice. London, UK: Abba Publishers.
Greenberg, G. K., & Dratel, J. L. (2005). The torture papers: The Road to Abu Ghraib, UCMJ.Cambridge: Cambridge University Press.
Greene, D. J. (2007). The secret joke of Kant’s soul, in Walter Sinnot-Armstrong (ed.), Moral Psychology, Vol. 3, The Neuroscience of Morality, Emotion, Disease and Development. Cambridge, UK: MIT Press.
Higginbotham, D. (1983). The war of American independence: military attitudes, policies, and practice. New York, USA: Cengage Learning.
John, K. J. (1998). The First Seminole War, November 21, 1817–May 24, 1818, 77 FLA. HIST. Q. 62.New York, USA: Charterhouse Publishers.
Joseph, W. (1978). Justice under fire: a study of military law. New York, United States of America: Charterhouse Publishers.
Kateb, G. (2007), Punishment and the Spirit of Democracy,74 SOC. RES. 269, 276. Indianapolis, Indiana: Bobbs-Merrill Publisher.
Kiszely, J. (2008) Post-modern challenges for modern warriors’, in Australian Army Journal, Vol. 5, No. 2, 2008, p. 182. Australia: Lieutenant Colonel Malcolm McGregor.
Kohlmann, R. H. (1996). Saving the Best-Laid Plans. Army Lawyer 3. USA: West Publishing.
Luttwak, E. (1996). A post-heroic military policy, in Foreign Affairs. Vol. 75, No. 4, 33.USA: John Wiley & Sons Inc.
Madsen, C. (2008). Military law and operations. Aurora, Ontario: Canada Law Book.
Murphy, C. (1996). Humanitarian intervention: the united nations in an evolving world order. Philadelphia, USA: University of Pennsylvania Press.
Petraeus, D. H. (2006). Learning counterinsurgency: observations from soldiering in Iraq, Military Review.Chicago, USA: University of Chicago Press.
Rouleau, E. (1996). Why Washington wants rid of Mr. Boutros-Ghali, Le Monde Diplomatique.USA: Jossey–Bass.
Rumsfeld, D. (2002). Secretary Rumsfeld Speaks on ‘21st Century Transformation’ of U.S. Armed Forces, National Defense University, Fort McNair. Washington D.C, USA: John Wiley & Sons Inc.
Schlueter, D. A. (2008). Military justice: practice and procedure, 7th Ed. The Netherlands: Amsterdam University Press.
Sharrock, J. (2008). Zip it, Soldier! What happens to Iraq veterans who speak out against the war.San Fransisco, USA: Mother Jones Magazine.
Smith, M. G., & Dee, M. (2003). Peacekeeping in east Timor: the path to independence, Lynne Rienner Publishers, Boulder, CO, 2003, 83. Boulder, USA: Lynn Rienner Publishers.
Sweeney, J. K., & Byrne, K. B. (2006). A handbook of American military history.USA: University of Nebraska Press.
Whiteclay, J. (1999). Chambers, ed., The Oxford guide to American military history. United Kingdom: Oxford University Press.
Wiener, F. B. (1989). American military law in the light of the first mutiny act’s Tricentennial. Military law review 126.Washington, USA: The Judge Advocate General’s School.
Winthrop, W. (2000). Military Law And Precedents. Buffalo, United States of America: William S. Hein & Co., Inc.
Woodward, B. (2002). Bush at war. New York, United States of America: Simon and Schuster Publishers.