2014 Military Justice

The Oxford Handbook of
CRIMINAL LAW
Edited by
MARKUS D. DUBBER
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TATJANA HÖRNLE
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c hapter 15
MILITARY JUSTICE
rain liivoja*
i. Introduction to Military Justice

“Military justice” and “military law” refer to the imposition of punishment by
military authorities, especially military courts or tribunals. Yet military justice
does not amount to a distinct model or system of criminal justice. The extent to
which military courts are used—to say nothing of their composition, jurisdiction,
and procedure—differs markedly from state to state. Even common law countries,
which share certain traditions of British military law, have become quite diverse in
their contemporary practices.
Moreover, military justice does not have a singular function, rationale, or aim. It
serves different purposes in different contexts. First and foremost, many states rely
on a military justice system to try and punish service members for misconduct that
undermines discipline in the armed forces. Secondly, during armed conflicts, states
have also empowered military courts to deal with offenses committed by enemy
belligerents and by residents of territories under military occupation. Finally, states
sometimes set up military courts to try persons with no association to their armed
forces for offenses against the security of the state or, in circumstances of a public
emergency, an even wider range of offenses. This chapter addresses each of these
three circumstances separately in Sections III, IV, and V but places the emphasis on
the first—the most common one.
* I am grateful to Matthew Groves and Alison Duxbury for their helpful comments on an earlier
draft. The responsibility for the present text, however, is mine alone.

military justice 327
ii. Due Process and Military Justice

Much of the contemporary discussion of military justice as a phenomenon revolves
around its compatibility with due process guarantees of international law.1 The
prevalence of this paradigm can be seen as one indicator of the general increase of
civilian oversight of the armed forces and in particular the subjection of the military
to more civilian standards of (judicial) scrutiny.2
There has been much debate about whether proceedings before a military court
can meet the standard of a “fair and public hearing by a competent, independent
and impartial tribunal established by law,” as required by the International Covenant
on Civil and Political Rights (ICCPR) and regional human rights treaties.3 Human
rights treaty bodies have often been skeptical about military courts living up to that
standard, perhaps partly as a result of applying the test of independence and impar-
tiality more stringently to military courts than to civilian courts.4
Treaty bodies have been particularly critical about the trial of civilians before
military courts, which raises the awkward question whether—and, if so, why—the
independence and impartiality assessment changes depending upon whether the
accused is a service member or a civilian.5 However, the insufficiently articulated
concern of human rights treaty bodies in this respect appears to be that trying
certain civilians before military courts—even if those courts meet the due process
requirements—discriminates against them compared to other civilians.6
Furthermore, human rights treaties recognize the right to liberty and security of
person, which includes the right to be “brought promptly before a judge or other
officer authorized by law to exercise judicial power” in the event of an arrest or
detention on a criminal charge.7 This raises the further problem as to whether a
military authority could validly authorize the deprivation of liberty.
1
See generally Jeanine Bucherer, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein
faires Verfahren (2005); Peter Rowe, The Impact of Human Rights Law on Armed Forces (2006), ch. 3;
Ian Leigh and Hans Born, Handbook on Human Rights and Fundamental Freedoms of Armed Forces
Personnel (2008), ch. 21.
2
See e.g. Gerry R. Rubin, “United Kingdom Military Law: Autonomy, Civilianisation, Juridification,”
(2002) 65 Modern LR 36 ff.
3
International Covenant on Civil and Political Rights (Dec. 16, 1966) 999 UNTS 171 (ICCPR), Art.
14(1); cf. Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950) 213
UNTS 222 (ECHR), Art. 6(1); American Convention on Human Rights (Nov. 22, 1969) 1144 UNTS 123
(AmCHR), Art. 8(1); African Charter on Human and Peoples’ Rights (June 27, 1981) 1520 UNTS 217,
Art. 7(1); Arab Charter on Human Rights (May 22, 2004) (ArabCHR), Art. 13(1).
4
With respect to the European Court of Human Rights, see Ann Lyon, “Two Swords and Two
Standards,” [2005] Crim. LR 850 ff. 5
Rowe (n. 1) 100.
6
Rain Liivoja, “Trying Civilian Contractors in Military Courts: A Necessary Evil?,” in Alison
Duxbury and Matthew Groves (eds.), Military Justice in the Modern Age (forthcoming), and sources
cited therein.
7
ICCPR, Art. 9(3); cf. ECHR, Art. 5(3); AmCHR, Art. 7(5); ArabCHR, Art. 14(5).

328 rain liivoja
Admittedly, military justice has organizational and procedural peculiarities that

can be difficult to reconcile fully with due process safeguards arising from human
rights law. This is demonstrated by the fact that a number of states have entered
reservations with respect to the relevant provisions of human rights treaties to cover
aspects of military justice.8
Even absent a reservation, provisions relating to due process in most human
rights treaties can be derogated from “In time of public emergency which threatens
the life of the nation and the existence of which is officially proclaimed,”9 such as
an armed conflict or large-scale civil unrest. However, measures of derogation are
valid only to the extent that they “are not inconsistent with [the derogating state’s]
other obligations under international law.”10 The law of armed conflict requires,
quite independently of human right law, that individuals be tried by impartial and
regularly constituted courts respecting the generally recognized principles of regu-
lar judicial procedure.11 As a result, many due process rights under human rights law
become non-derogable in times of conflict as a result of the law of armed conflict.
While military justice is usually examined in its particular constitutional setting,
human rights law and the law of armed conflict provide a lens for examining the
phenomenon in a comparative way. Hence, this chapter aims to situate contempor
ary practices of military justice in their international law context.
iii. Military Discipline and Military

Justice
. Military discipline and the law

The principal function of the armed forces in a democratic society is to ensure the
defense of the nation. This task is a collective one: the effectiveness of the military
hinges on the well-coordinated functioning of its component parts. Achieving this
8
See Rowe (n. 1) 78, 90.
9
10
11
See Geneva Conventions (Aug. 12, 1949) 75 UNTS 31, 85, 135 and 287, Common Art. 3; Protocol
Additional (I) Relating to the Protection of Victims of International Armed Conflicts (June 8,
1977) 1125 UNTS 3 (API), Art. 75(4); Protocol Additional (II) Relating to the Protection of Victims
of Non-International Armed Conflicts (June 8, 1977) 1125 UNTS 609 (APII), Art. 6(2); International
Committee of the Red Cross, Customary International Humanitarian Law (online database) at: <http://
www.icrc.org/customary-ihl> (CIHL), rule 100 and commentary thereto.

coordination depends on the maintenance of good order and a high degree of dis-
cipline among the members of the forces. Moreover, service members are—not to
put too fine a point on it—trained to kill people and break things, and they have at
their disposal weaponry and heavy equipment to apply such training in practice.
With a lack of discipline, the military could become not only ineffective in defend-
ing a nation, but a threat to that very nation. As a learned judge once noted, “there
is nothing so dangerous to the civil establishment of a state, as a licentious and
undisciplined army.”12
Military discipline can be enhanced in a number of ways. In the first instance,
it is engrained through training, personal example, encouragement, direction,
guidance, and supervision.13 For addressing lapses of discipline, there are vari-
ous non-punitive corrective mechanisms, such as counseling, admonition, addi-
tional instruction, administrative withholding of privileges, non-recommendation
for awards and promotions, and so on.14 However, formal legal processes have an
important role to play, especially as regards particularly serious transgressions
against the expected standards of good order and discipline.15 One might well say
that the armed forces could not properly discharge their function without a formal,
legally enforceable code of discipline.16 Be that as it may, international law expressly
requires the “armed forces of a Party to a conflict” to be “subject to an internal dis-
ciplinary system which, inter alia, shall enforce compliance with the rules of inter-
national law applicable in armed conflict.”17
Breaches of the code of discipline may entail disciplinary or criminal liability. This
division is based on the relative gravity of the transgressions: disciplinary offenses
are comparatively minor ones, whereas criminal offenses, as the label suggests, are
comparable in severity to offenses proscribed by general criminal law. To reflect
this distinction and to provide for different procedures for addressing offenses of
different gravity, many states have enumerated military disciplinary offenses and
military criminal offenses in separate legal instruments—effectively splitting the
code of discipline into two.18 In other states, the code of discipline is contained in a
single legal instrument, making the disciplinary–criminal divide more theoretical.19
12
Grant v. Sir Charles Gould (1792) 126 E.R. 432, 451 (Lord Loughborough).
13
Robert Edwards, “Discipline,” in Bernd Horn and Robert W. Walker (eds.), The Military Leadership
Handbook (2008), 228 ff.
14
See Rules for Courts-Martial (United States), rule 306(c)(2); Rowe (n. 1) 70–72.
15
See Jeff Blackett, Rant on the Court Martial and Service Law (3rd ed., 2009), ch. 1.
16
See R. v. MacKay [1978] 1 F.C. 233, para. 6 (Cattanach, J.). 17
API, Art. 43(1).
18
See e.g Wehrstrafgesetz (Military Criminal Code), Mar. 30, 1957 (WStG), and Wehrdisziplinarordnung
(Military Disciplinary Code), Aug. 16, 2001 (WDO) (Germany); Wetboek van Militair Strafrecht
(Military Criminal Code), Apr. 27, 1903, and Wet militair tuchtrecht (Military Discipline Code), June
14, 1990 (the Netherlands).
19
See e.g. Defence Force Discipline Act 1982 (Australia) (DFDA); National Defence Act 1985
(Canada) (NDA); Armed Forces Act 2006 (United Kingdom) (AFA); Uniform Code of Military
Justice, May 5, 1950 (United States) (UCMJ). In Finland, offenses are codified in a single Act, see
Rikoslaki (Criminal Code), Dec. 19, 1889, ch. 45, but they can be dealt with by means of two different

330 rain liivoja
In any event, given the severity of the punishments that may be applicable to dis-
ciplinary offenses in a military context, the distinction is often more apparent than
real. Courts have refused to take the label “disciplinary” at face value, holding that
ostensibly disciplinary offenses with serious sanctions such as detention are capable
of triggering due process safeguards appropriate for criminal proceedings.20
The unclear boundary between disciplinary and criminal liability sets military
discipline apart from other types of professional discipline. Many professions—
including law, medicine, and accounting—have codes of conduct enforced by pro-
fessional bodies. However, such bodies administer disciplinary sanctions outside
the penal law framework and such reprimands remain distinct from any punish-
ment that may, for the same act of professional misconduct, be imposed by the state
as a matter of criminal law. In the military context, however, the disciplinary system
blends into the regular criminal justice system or replaces it altogether.
The military code of discipline as a whole is typically enforced by a combin
ation of judicial and non-judicial measures. Non-judicial measures entail the
authority of military commanders to impose punishment for disciplinary offenses
and sometimes minor criminal offenses without a formal trial. This leaves more
serious offenses to be dealt with by the judicial system. And the nature of the judicial
procedure applicable to serious offenses committed by service members is in many
ways the hallmark of a given military justice system.
2. Substantive law

Before discussing questions of procedure, it may be useful to highlight some of the
substantive penal law issues involved in military justice, which are relevant irre-
spective of the particular procedural model chosen.
a) Military offenses

Considerations of military discipline have given rise to what are often called “purely
military offenses” or “military-specific offenses,” that is to say, offenses that have
no civilian equivalent and are thus unique to the military. Such offenses may be
defined in a separate military criminal code or military disciplinary code, or in a
subdivision of the general penal code. On closer inspection, such offenses fall into
two categories.
First of all, certain offenses are proscribed solely with military discipline (or, more
broadly, the security of the state) in mind and injure no other interest generally
procedures, see respectively Sotilasoikeudenkäyntilaki (Code of Military Judicial Procedure), Mar. 25,
1983; Sotilaskurinpitolaki (Code of Military Discipline), Mar. 25, 1983.
See Engel and others v. Netherlands, App. nos. 5100/71, 5101/71, 5102/71, 5354/72, and 5370/72,
20
ECtHR, Judgment of 8 June 1976 [1976] 1 EHRR 647; R. v. Wigglesworth [1987] 2 SCR 541, 559.

protected by penal law. Such offenses include absence without leave,21 desertion
(absence without leave with the intention to be absent permanently or to avoid
hazardous duty, such as taking part in hostilities);22 failure to obey a lawful order;23
insubordination (disrespectful conduct toward superiors);24 mutiny (collective acts
to overthrow or resist authority);25 neglect of duty;26 malingering (causing oneself
an injury, or aggravating an existing injury, to avoid service);27 unlawful disclosure
of information;28 assisting an enemy;29 and other forms of misconduct particular to
the conduct of military operations.30
The second group of offenses is concerned primarily, but not exclusively, with
military discipline. Here the conduct does meet the definition of some civilian
offense but its effect on military discipline is such as to amplify its seriousness.
For example, in a military context, it is insufficient to regard a physical attack on
a superior as garden-variety assault. Given how seriously it undermines military
authority and jeopardizes discipline, such conduct typically constitutes a distinct
aggravated form of insubordination.31 Other offenses in this category include the
maltreatment of subordinates;32 certain offenses against military or public prop-
erty;33 looting (taking property that is left exposed or unprotected in the course
of military operations);34 offenses relating to the operation or safety of military
vehicles, aircraft, and vessels;35 unlawful use of weapons;36 and offenses relating to
alcohol and controlled substances in the military.37
A commonplace feature of the code of discipline is a catch-all provision, known
as the “general article” or the “devil’s article,” which makes it an offense to engage in
unspecified conduct—not necessarily meeting the definition of any other offense,
military or civilian—which prejudices military discipline or brings discredit upon
the armed forces.38 These types of provisions, while inimical to ordinary criminal
21
UCMJ, Art. 86; AFA, section 9; § 15 WStG.
22
UCMJ, Art. 85; AFA, sections 8–10; § 16 WStG.
23
UCMJ, Art. 92; AFA, sections 12–13; §§ 19, 22 WStG.
24
UCMJ, Arts. 89–91; AFA, section 11(2); §§ 20, 23–25 WStG.
25
UCMJ, Art. 94; AFA, section 6.
26
AFA, section 15; see also UCMJ, Art. 113; AFA, section 2(4) (neglect of guard duty); UCMJ, Art.
107; AFA, section 18; § 42 WStG (making false reports).
27
UCMJ, Art. 115; AFA § 16; § 15 WStG. 28 UCMJ, Art. 106a; AFA, section 17.
29
UCMJ, Art. 104; AFA, section 1. 30
UCMJ, Arts. 99–103, 105; AFA, sections 2–3, 5.
31
UCMJ, Arts. 89–91; AFA, section 11(1); §§ 20, 23–25 WStG.
32
UCMJ, Art. 93; AFA, section 22; §§ 30–32 WStG.
33
UCMJ, Arts. 108–109; AFA, sections 24–26. 34 UCMJ, Art. 103(b)(3); AFA, section 4.
35
UCMJ, Arts. 110, 111; AFA, sections 31–38. 36
§ 46 WStG.
37
UCMJ, Arts. 112, 112a; AFA, section 20.
38
UCMJ, Art. 134; AFA, section 19. See also D. B. Nichols, “The Devil’s Article,” (1963) 22 Military
LR 111 ff.; James K. Gaynor, “Prejudicial and Discreditable Military Conduct: A Critical Appraisal of
the General Article,” (1971) 22 Hastings LJ 259 ff.; Matthew Groves, “The Use of Civilian Law Principles
in Military Discipline,” (1997) 23 Monash University LR 456 ff. See also UCMJ, Art. 133 (conduct unbe-
coming an officer and a gentleman).

332 rain liivoja
justice because of their vagueness, have been tolerated in the military context
because they can be interpreted in light of the traditions of the armed forces and
the prevailing military culture.39 Thus, general articles incorporate into the law, and
attach punishments to the violation of, extra-legal standards of honorable military
conduct.40
b) Ambit of the law 41

All of the offenses just mentioned are what in German parlance are known as
Sonderdelikte—they can only be committed by a limited range of individuals. These
individuals include service members first and foremost but, in some states and
under some circumstances, also civilians who have a particularly close connec-
tion to the armed forces (civilian employees, contractors, etc.).42 Thus, the personal
applicability of military law tends to be fairly narrowly circumscribed.
The opposite is true, however, when it comes to the territorial or geograph
ical applicability of the law. The penal law of a state—including both the law that
defines military offenses as well as ordinary criminal law—often has very extensive
extraterritorial applicability to service members. With respect to military offenses,
the reason is quite clear: the maintenance of military discipline is as important on
overseas deployments as it is at home. With respect to the broad extraterritorial
applicability of general criminal law to service members, two reasons in particular
stand out. First, when in the territory of another state, service members often have
at least some degree of immunity from the local legal system, either by virtue of the
law of armed conflict or as a result of a treaty arrangement between their home state
and the territorial state. Secondly, common crimes committed by service members
have—at least under some circumstances—implications for military discipline and
potentially engage the international responsibility of the home state. As a result, it
is recognized that there must remain the residual possibility of proceedings against
service members under the home state’s law if they commit some common crime
abroad for which they cannot be brought to justice locally.
In states where military offenses are contained in the civilian penal code, the
extraterritorial application of all penal law to service members abroad can be
achieved simply by having a special jurisdictional provision in that code.43 In states
39
See e.g. U.S. v. van Steenwyk, 21 M.J. 795 (Navy–Marine Corps Court of Military Review, 1985);
Parker v. Levy, 417 U.S. 733 (1974).
40
See Rain Liivoja, “Law and Honour: Normative Pluralism in the Regulation of Military Conduct,”
in Jan Klabbers and Touko Piiparinen (eds.), Normative Pluralism and International Law: Exploring
Global Governance (2013), 143 ff.
41
This section draws upon Rain Liivoja, Extraterritorial Criminal Jurisdiction over the Armed Forces
(forthcoming). See also Rain Liivoja, “Service Jurisdiction in International Law,” (2010) 11 Melbourne
Journal of International Law 309 ff. 42
See UCMJ, Art. 2; AFA, sections 367–371A.
43
See e.g. Karistusseadustik (Penal Code), June 6, 2001 (Estonia), § 7(2)(1); Уголовный кодекс
(Criminal Code), June 13, 1996 (Russia), § 12(2).

with a military criminal code, the arrangement tends to be more complex: first, the
military criminal code is given broad extraterritorial application with respect to the
individuals subject to it;44 then, any conduct that would violate civilian criminal law
if committed within the territory of that state is made an offense against the military
criminal code.45 This arrangement effectively incorporates civilian criminal law into
military criminal law, thereby making it applicable to service members abroad.
There is, of course, nothing exceptional about a state extending the applicability
of its criminal law to offenses abroad, especially when it comes to the conduct of the
nationals of that state. However, two points bear noting here. First, states that do
not routinely and extensively apply their penal law to their nationals abroad often
do so with respect to their service members. Secondly, many states that restrict the
applicability of their penal law to the conduct of nationals abroad by reference to the
seriousness of the offense or the double criminality rule do not apply such restric-
tions when it comes to the conduct of service members. Thus, the applicability of
penal law to service members abroad is uniquely expansive.
Contrary to popular belief, war crimes are not distinctly military offenses. War
crimes are serious violations of the law of armed conflict to which international law
attaches individual criminal responsibility.46 Such acts can be perpetrated by anyone.47
Accordingly, the definitions of war crimes are often not part of the code of discipline but
the general penal law applicable to service members and civilians alike and contained
in special legislation addressing international crimes48 or in the civilian penal code.49
c) Military defenses

The applicability of general penal law to service members raises the question as
to whether distinctly military defenses exist to accommodate the requirements of
military discipline, especially on operations. Much of the discussion of this point
has, at least since World War I, focused on the possibility of an order of a military
superior exempting a subordinate from responsibility when carrying out the order.
This issue is particularly thorny because service members commonly have a legal
obligation to carry out orders and may be punished for failing to do so.50
44
See e.g. UCMJ, Art. 5; DFDA, section 9.
45
See e.g. AFA, section 42; DFDA, section 61; cf. UCMJ, Arts. 118–131 (defining a number of civilian
offenses expressly) and 134 (incorporating by reference other “crimes and offenses not capital” under
U.S. law). 46
See CIHL (n. 11), rule 156.
47
There are numerous examples of civilians convicted of war crimes. See e.g. In re Tesch et al.
(Zyklon B Case) (1946) 1 LRTWC 93 (British Military Court at Hamburg).
48
War Crimes Act of 1996, codified at 18 USC § 2441; see also 18 USC § 2442; International Criminal
Court Act 2001 (United Kingdom), especially sections 50, 51, 58; Völkerstrafgesetzbuch (Code of Crimes
against International Law), June 26, 2002 (Germany), §§ 8–12.
49
Criminal Code, Schedule 1 to the Criminal Code Act 1995 (Australia), sections 268.24–268.101.
50
See n. 23.

334 rain liivoja
With respect to the most serious international crimes, the charters of the
post-World War II international military tribunals as well as the statutes of the
contemporary ad hoc tribunals, have excluded such a defense entirely.51 The Rome
Statute, however, adopts a more nuanced approach, allowing the defense of superior
orders with respect to war crimes, provided that the person was under a legal obli-
gation to carry out the order, the person did not know that the order was unlawful,
and the order was not manifestly unlawful.52 Construed in this way, the defense of
superior orders becomes akin to an unavoidable mistake of law in the sense that the
order leads the subordinate mistakenly to believe that she was obliged to do some-
thing that was actually unlawful. In any event, from this perspective superior orders
constitute an excuse, not a justification: orders do not render the conduct lawful,
they only exempt the individual from criminal liability in limited circumstances.
Yet the problem of military defenses also presents itself with respect to ordinary
offenses—common crimes that do not rise to the level of violations of international
law. Could superior orders or membership in the armed forces in some cases act as
a justification and make lawful something that ordinarily would be unlawful? This
issue has not been extensively discussed but can have considerable practical import
ance. By engaging in lawful acts of war, service members may engage in conduct
that meets the definition of a criminal offense (e.g. killing an enemy combatant
would normally satisfy all the elements of the crime of murder). The same may be
the case where service members participate in a peacekeeping operation that has
been given a mandate under Chapter VII of the UN Charter to use “any necessary
means.” While the prudent exercise of prosecutorial discretion would normally pre-
clude any actual prosecution of a service member who complied with the relevant
rules of international law, the criminal law of some states contains a “public duty”
or “lawful authority” defense that applies to service members53 and in other states it
may be possible directly to invoke rules of international law as a defense.54
3. Procedure
a) Summary proceedings
A recurring feature or theme of military justice is the significant role of the com-
mander. In fact, much of the historical development of military justice can be seen
51
Charter of the International Military Tribunal (Aug. 8, 1945) 82 UNTS 279, Art. 8; Statute of the
International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827 (May 25, 1993), Art. 7(4).
52
Rome Statute of the International Criminal Court (July 17, 1998) 2187 UNTS 90, Art. 33.
53
See U.S. Model Penal Code, § 3.03(1)(d) (“conduct is justifiable when it is required or authorized
by . . . the law governing the armed services or the lawful conduct of war”).
54
Grundgesetz (Basic Law), 23 May 1949 (Germany), Art. 25 (general rules of international law take
precedence over legislation and directly create rights for individuals); Penal Code (Estonia), section 27
(unlawfulness of an act may be precluded, inter alia, by treaty or customary international law).

as the gradual narrowing of the commander’s authority to impose punishment

“summarily,” that is to say, without a regular trial.55 Important and far-reaching pro-
cedural restrictions have been put in place over centuries, leading to the develop-
ment of elaborate military justice systems and in some states the transfer of some of
the disciplinary punitive power to civilian authorities.
However, most armed forces retain the direct authority of the commander to
impose “non-judicial punishment” in what are referred to as “summary” proceed-
ings. Such proceedings are limited to comparatively petty infractions, especially
those that have a purely disciplinary character56 and, in some states, also those that
amount to minor criminal offenses.57
Summary proceedings entail a hearing before a more senior service member
who not only decides what charges to bring but, acting as a trier of fact and law,
determines whether a charge has been proven, and, if it has, awards punishment.58
Summary proceedings are thus essentially simple inquisitorial processes—in con-
trast to the adversarial process that may be applicable in judicial proceedings.59 The
accused is usually not entitled to be represented by counsel but may be permitted
to appear with an “assisting officer.”60 The range of punishments available to the
commander tends to be fairly restricted, being generally limited to admonitions or
reprimands, fines or forfeitures of pay, extra duties, and limited reductions in rank,
seniority, or pay grade.61 In many instances, the expedited nature of summary pro-
ceedings and the reduced sentencing options make such proceedings attractive for
the accused as a way of getting the matter “over and done with.”
From a human rights perspective, however, the possibility of a commander—a
non-judicial authority—imposing restrictions on liberty as summary punishment
has proven controversial.62 The European Court of Human Rights has conceded
that “A disciplinary penalty or measure which on analysis would unquestionably be
deemed a deprivation of liberty were it to be applied to a civilian may not possess
this characteristic when imposed upon a serviceman.”63 But it has also found that
guarantees of judicial review apply where the penalty or measure “takes the form
of restrictions that clearly deviate from the normal conditions of life within the
armed forces.”64 For example, while refusing to regard as detention the confinement
of service members, during off-duty hours, to military premises without keeping
55
See Liivoja (n. 41).
56
Wehrbeschwerdeordnung (Military Complaints Regulations), Dec. 23, 1956 (Germany).
57
AFA, sections 53–54, Schedule 1; UCMJ, Arts. 15, 20.
58
AFA, section 131; UCMJ, Art. 15 (non-judicial punishment).
59
U.K. Ministry of Defence, JSP 830—Manual of Service Law: Version 2.0 (Jan. 31, 2011), ch. 9, para.
3; Rules for Courts-Martial (United States), rule 1301(b).
60
The Armed Forces (Summary Hearing and Activation of Suspended Sentences of Service
Detention) Rules 2009 (United Kingdom), rule 10.
61
AFA, section 131; UCMJ Art. 15(b)–(c); §§ 22–26 WBO.
62
See e.g. Bell v. U.K., App. no. 41534/98, ECtHR, Judgment of 16 Jan. 2007.
63
Engel (n. 20) para. 59. 64
Engel (n. 20) para. 59.

336 rain liivoja
them “under lock and key,” the Court viewed as detention the placement of service
members, by day and by night, in a locked cell, even for a fairly short period.65
Accordingly, in some military justice systems a decision imposing detention has to
be reviewed and approved by a judge,66 the service member may elect to be tried by
a judicial body instead of summary proceedings,67 and/or the service member may
appeal a summary punishment to a judicial body, whether a military or a civilian
court.68
b) Judicial proceedings

Military offenses that are too serious to be dealt with summarily by the commanding
officer must be disposed of judicially. Broadly speaking, the judicial bodies tasked
with enforcing military discipline may be: (a) ad hoc military tribunals; (b) perma-
nent military courts; (c) specialized civilian courts; and (d) general civilian courts.69
Ad hoc military tribunals—used, for example, in Australia, Canada, Ireland,
Kenya, Singapore, and the United States—generally mean courts-martial, that is
to say “panels” of service members, installed for a specific trial.70 While the panel
members do not have legal training, they sit with a legally qualified “military judge”
or “judge advocate.”71 Thus, in some respects, the court-martial panel resembles a
jury. However, the panel is not necessarily made up of the peers of the defendant but
often of more senior service members and it can typically convict by simple major-
ity where a civilian jury may require unanimity or qualified majority.72
Traditionally—and in line with the significant role of the commander—the
commander makes the decision to bring charges, and appoints the prosecutor
and members of the court-martial, in her capacity as the “convening authority.”
Subsequent to the trial, the commander also approves or sets aside the decision of
the court-martial panel. This approach of construing the military tribunal as a dis-
ciplinary tool at the disposal of the commander notably still prevails in the United
States.73
However, such a model has attracted criticism precisely due to the significant
influence of the commander and the resulting doubts as to the independence
and impartiality of panel members. To alleviate these concerns, the commander’s
authority in this respect has been significantly reduced in Australia and Canada
where the decision to prosecute is now made by an independent Director of
65
Engel (n. 20) paras. 61–63. 66
§ 40 WBO.
67
AFA, section 129; UCMJ, Arts. 15(a), 20. 68
AFA, section 141.
69
cf. Arne Willy Dahl, “International Trends in Military Justice” (Global Military Appellate Seminar,
Yale Law School, Apr. 1–2, 2011).
70
The exact composition may depend on the seriousness of the alleged offense. See UCMJ, Arts.
16–19; DFDA, sections 114–115.
71
See UCMJ, Art. 16; DFDA, sections 117, 119(1)(a)(iii), 134, 196.
72
See DFDA, sections 116, 133; UCMJ, Arts. 25, 52. 73
See UCMJ, Arts. 22–23, 60.

Military Prosecutions74 and the courts-martial is empanelled by a similarly inde-

pendent authority.75
Despite such improvements, the use of ad hoc military tribunals has also attracted
criticism because of the lack of guarantees of independence for the military judge.76
One option for addressing this problem, without doing away with the essentially ad
hoc and military nature of the courts-martial, has been to provide tenure for mili-
tary judges.77 A somewhat more far-reaching option has been to make the military
courts permanent. For example, after a substantial reform in the United Kingdom
and New Zealand in 2009, both states now have a Court Martial, which, despite
its name, is a permanent court.78 In both instances a panel of service members sits
with a judge or judge advocate who, with respect to the procedure of appointment
and guarantees of independence, compares favorably to a judge in a civilian court.79
Finland and the Netherlands provide examples of systems where the composi-
tion of ordinary civilian courts is altered in cases dealing with offenses committed
by service members, effectively turning these courts into specialized civilian courts.
While a court of first instance in Finland would ordinarily sit with a professional
judge as president and three lay judges drawn from the community,80 in military
cases there would be a professional judge and two service members; a court of
appeal and the Supreme Court would sit with two additional military members.81 In
the Netherlands, military cases are concentrated to the Arnhem District Court and
Court of Appeal, which have military chambers composed of civilian judges and a
military judge.82
Finally, a number of states have opted to deal with military cases in ordinary
criminal courts of general jurisdiction. Examples include Austria,83 Denmark,84
Estonia, Germany,85 and Sweden.
In view of recent reforms in military justice, the distinction between the dif-
ferent models is becoming blurred. For example, while a Canadian court-martial
is nominally an ad hoc military tribunal and the UK Court Martial a permanent
military court, they operate quite similarly: the proceedings are presided over by a
74
DFDA, sections 103, 118G–118GR; NDA, sections 164.2, 165, 165.1.
75
DFDA, sections 119–125, 129B, 188F–188FM (Registrar of Military Justice); NDA, sections 165.18–
165.192 (Court Martial Administrator). 76
LeBlanc v. The Queen [2011] CMAC 2.
77
Security of Tenure of Military Judges Act 2011 (Canada).
78
AFA, section 154; Court Martial Act 2007 (New Zealand), section 8.
79
AFA, sections 155, 362; Courts-Martial (Appeals) Act 1951, sections 28–35; Court Martial Act 2007
(New Zealand), sections 10–21.
80
Oikeudenkäymiskaari (Code of Judicial Procedure), Jan. 1, 1734 (Finland), ch. 2, § 1.
81
Code of Military Judicial Procedure (Finland), §§ 3, 10.
82
“The Netherlands,” in Stanislas Horvat, Ilja van Hespen, and Veerle van Gijsegem (eds.),
International Conference on Military Jurisdiction: Conference Proceedings (2013), 350 ff., 353–355.
83
Austrian Ministry of Defence and Sport, “Austria,” in Horvat (n. 82) 164 ff, 164.
84
See The Danish Military Prosecution Service (2009), 6, available at: <http://fauk.dk/publikationer/
artikler/Documents/Engelskbrochure.pdf>.
85
See German Ministry of Defence, “Germany,” in Horvat (n. 82) 270 ff., 273.

338 rain liivoja
judge whose appointment is permanent and the judgment is made by a panel that is
assembled for the specific trial.
The difference between a military court and a specialized civilian court is likewise
becoming less and less obvious. Generally speaking, a military court is a body com-
posed exclusively or partially of members of the armed forces.86 But in the British
system it is possible for the Court Martial to sit with a panel of civilians (generally
Ministry of Defence civil servants) where the defendant is a civilian (say, a military
contractor). Also, in states that have ad hoc military tribunals, appellate military
courts are often made up of civilian judges—the US Court of Appeals for the Armed
Forces and the Australian Defence Force Discipline Appeal Tribunal being cases in
point. Thus, military courts and tribunals bear the label “military” not necessarily
because of their composition or even the procedure of judicial appointment, but
because of their position in the legal system and their relationship to the armed
forces and ordinary civilian courts.
c) Rationale for a separate military justice system

A number of rationales have been given for the existence of a separate system of
military justice.
First, it has been held that “the military is, by necessity, a specialized society separ
ate from civilian society”—owing to the fact that “it is the primary business of
armies and navies to fight or be ready to fight wars should the occasion arise”—and
that “the military has, again by necessity, developed laws and traditions of its own
during its long history.”87
Secondly, emphasis has been placed on the military’s need to “enforce internal
discipline effectively and efficiently” in order to maintain “a state of readiness.”88
Thus, “Breaches of military discipline must be dealt with speedily and, frequently,
punished more severely than would be the case if a civilian engaged in such con-
duct,” and, as a consequence, “Recourse to the ordinary criminal courts would, as
a general rule, be inadequate to serve the particular disciplinary needs of the mili-
tary.”89 Moreover, in the event of a breach of discipline occurring abroad, it may be
operationally preferable to deal with the matter “on the spot” rather than return the
offending service member to the national territory.
Thirdly, the argument has been made that the cases arising in the military are so
peculiar that civilian judges (or juries), lacking operational knowledge and experi-
ence, are ill-placed to sit in judgment of service members.90
However, none of these considerations appear to be entirely controlling.
The idea of the military as a separate society sounds somewhat hollow to the
86
See e.g. Rowe (n. 1) 95.
87
Parker v. Levy, 417 U.S. 733, 743 (1974) (Rehnquist, J.), citing Toth v. Quarles, 350 U.S. 11, 17 (1955).
88
R. v. Généreux [1992] 1 SCR 259, 293 (Lamer, C.J.). 89
Généreux (n. 88) 293.
90
Mentioned in Mindia Vashakmadze, Understanding Military Justice: Guidebook (2010), 10.

contemporary observer. As for disciplinary needs, many states deem it possible to

rely on a combination of summary proceedings for minor offenses and the civil-
ian justice system for serious offenses without any perceived detrimental impact
on discipline. Finally, there is no particular reason to think that civilian courts,
which are considered entirely capable of handling, say, highly complex medical
malpractice cases, would be fundamentally incapable of assessing the propriety of
the conduct of service members.
I would suggest that two further—and perhaps more pertinent—explanations
can be given for the existence of military justice systems at present.
First, it is significant that most common law countries have elected to have
military courts, whereas within the civil law tradition the situation is much more
diverse. One of the reasons is the role of juries as triers of fact in the common
law model and the concomitant weight traditionally ascribed to oral evidence and
cross-examination of witnesses. Applying these principles in the event of an offense
committed abroad leads to significant logistical problems. Military courts that do
not have a jury can more easily sit abroad.91 Civil law countries—many of them
with investigating judges and the possibility of introducing evidence that has been
reduced to writing—experience a significantly reduced need for a distinct “mobile”
justice system for the armed forces.
Secondly, military courts tend to persist in countries where the armed forces
enjoy a particularly significant position in society. The armed forces may hold so
much (political) clout that the civil branches of government defer to the military
even to the extent of giving it comparative autonomy in matters of discipline and
criminal justice. This may at least partly explain the prevalence of military courts in
some parts of Eastern Europe, Latin America, and Asia.
d) Jurisdiction
In states that have either military courts or specialized civilian courts, delimiting
the jurisdiction of such courts can be complicated. While military-specific offenses
would fall quite naturally within the purview of the specialized court system, the
matter is different when it comes to ordinary criminal offenses committed by ser-
vice members. In some states, the membership of the accused in the armed forces
is sufficient to grant military courts jurisdiction over her offenses that violate gen-
eral criminal law. This is often called the “service status” test and is, for example,
relied upon in the United States.92 In other states, there must be a demonstrable
link between the conduct of the individual service member and the discipline of the
armed forces in order to sustain the jurisdiction of military courts. This is referred
91
cf. Michael R. Gibson, “International Human Rights Law and the Administration of Justice
through Military Tribunals: Preserving Utility While Precluding Impunity,” (2008) 4 Journal of
International Law & International Relations 1 ff. 92
Solorio v. US, 483 U.S. 435 (1987).

340 rain liivoja
to as the “service connection” test, which prevails, for example, in Australia93 (where,
however, the service connection test has been so loosely applied that in practice the
outcome resembles that of the service status test).94
If military courts have jurisdiction over ordinary offenses—however related
or unrelated to military service—they inevitably end up competing with civilian
courts. At least part of this problem might be resolved by having procedural rules
determining the proper judicial forum, for example by making the military trial of
particularly serious civilian crimes committed within the territory of the state sub-
ject to the consent of the relevant civilian authorities.95 With respect to situations
not covered by such rules, the civilian and military authorities may need to engage
in ad hoc consultations96 or conclude inter-agency agreements.97
iv. Armed Conflict and Military

Justice
Military tribunals have been used regularly in times of armed conflict beyond the
previously discussed function of maintaining discipline within a state’s own armed
forces. This has entailed, in particular, the trial of captured enemy belligerents on the
one hand and civilians residing in foreign territories under military control on the other.
1. Trial of enemy belligerents

In an international armed conflict, members of the enemy armed forces, members
of irregular armed groups under certain conditions, and participants in a levée en
masse are entitled to be treated as prisoners of war (PoWs) on capture.98 While this
93
See Re Tracey, ex p. Ryan [1989] HCA 12, (1989) 166 CLR 518; Re Nolan, ex p. Young [1991] HCA 29,
(1991) 172 CLR 460; Re Tyler, ex p. Foley [1994] HCA 25, (1994) 181 CLR 18.
94
See Re Aird, ex p. Alpert [2004] HCA 44, (2004) 220 CLR 308; Andrew D. Mitchell and Tania
Voon, “Justice at the Sharp End: Improving Australia’s Military Justice System,” (2005) 28 University of
New South Wales LJ 396 ff., 402–416. 95
See e.g. DFDA, section 63.
96
See e.g. U.K. Ministry of Defence, JSP 830—Manual of Service Law, Vol. 1, ch. 1, para. 52.
97
See e.g. Memorandum of Understanding between the Australian DPP and Director of Military
Prosecutions, May 22, 2007.
98
Geneva Convention (III) relative to the Treatment of Prisoners of War (Aug. 12, 1949) 75 UNTS
135 (GCIII), Art. 4.

means that they cannot be punished for lawful acts of war, they can be prosecuted
for war crimes as well as common crimes committed before or during captivity.
The detaining state may exercise penal and disciplinary power over PoWs subject
to the “principle of assimilation.”99 In the words of the 1907 Hague Regulations,
PoW are “subject to the laws, regulations, and orders in force in the army of the
State in whose power they are.”100 The 1929 Geneva Convention on PoWs and the
1949 Geneva Convention III reiterate this principle101 and also spell out its specific
aspects, such as the equivalence of punishments,102 and the requirement that PoWs
be tried by the same courts and according to the same procedure as members of
the armed forces of the detaining state.103 The Conventions also provide for certain
minimum procedural rights, such as the right to an effective defense and the right
to appeal.104
After World War II, the Tokyo Tribunal and many national courts took the posi-
tion that, under the 1929 Convention, the principle of assimilation only applied
to offenses committed by PoWs while in detention and not to offenses committed
prior to capture.105 While this view was probably consistent with the intentions of
the drafters of the Convention,106 it led to a peculiar situation where proceedings
relating to fairly minor offenses committed in captivity were subject to greater pro-
cedural safeguards than trials of war crimes committed before capture.107 Although
the French Cour de Cassation changed its mind in 1950 and began applying the
relevant provisions of the 1926 Conventions to the trials of war criminals,108 the bulk
of post-World War II war crimes trials were held before a motley array of national
and quasi-international courts and tribunals that did not necessarily align with the
regular disciplinary practices of the armed forces of the Allies.
This matter was conclusively resolved, however, by the 1949 Geneva Convention III
which expressly provides that PoWs “prosecuted under the laws of the Detaining Power
for acts committed prior to capture shall retain, even if convicted, the benefits of the
99
Jean S. Pictet (ed.), Geneva Convention III Relative to the Treatment of Prisoners of War:
Commentary (1960), 406 ff.
100
Hague Regulation respecting the Laws and Customs of War on Land (Oct. 18, 1907) 205 CTS 277
(H.R.), Art. 8(1).
101
Geneva Convention on Prisoners of War (July 27, 1929) 118 LNTS 343 (PoW Convention), Art.
45(1); GCIII, Art. 82(1). 102
PoW Convention, Art. 46; GCIII, Arts. 87–88.
103
PoW Convention, Art. 63; GCIII, Art. 102.
104
PoW Convention, Arts. 61–62, 64; GCIII, Arts. 99(3), 105–106.
105
Application of Yamashita, 327 U.S. 1, 22–24 (1946); Johnson v. Eisenträger, 339 U.S. 763, 789–790
(1950); In Wagner (Cour de Cassation, France, July 24, 1946), repr. in 3 LRTWC 23, 42, 50; In re Rauter
(Special Court of Cassation, The Netherlands, Jan. 12, 1949), repr. in 14 LRTWC 89, 116–117; U.S. et al.
v. Araki et al., 22 Tokyo War Crimes Trial 48413 (International Military Tribunal for the Far East, 1948),
48441–48442 (adopting the conclusion and the reasoning of Yamashita).
106
See Pictet (n. 99) 413.
107
Application of Yamashita, 327 U.S. 1, 74–78 (1946) (Rutledge, J., dissenting) (suggesting that this
caused the 1926 Convention to “strain at a gnat and swallow the camel”).
108
Pictet (n. 99) 414; see also, e.g., Re Kahrs (Cour de Cassation, France, Feb. 2, 1955), repr. in 22 ILR 929.

342 rain liivoja
present Convention.” 109 This savings clause made it clear that the Convention’s guaran-
tees apply to the prosecution, trial, and punishment of a PoW for any offense, including
a war crime.110 In line with this rule, when General Manuel Noriega was detained by the
United States in the wake of the 1989 invasion of Panama and put on trial for drug traf-
ficking, racketeering, and money laundering, the U.S. federal courts accorded him the
guarantees stipulated in Geneva Convention III.111
According to Geneva Convention III:
A prisoner of war shall be tried only by a military court, unless the existing laws of the
Detaining Power expressly permit the civil courts to try a member of the armed forces of
the Detaining Power in respect of the particular offence alleged to have been committed by
the prisoner of war.112
In light of this provision, read together with the principle of assimilation, states
with a military justice system have extended the reach of that system to PoWs, sub-
ject to necessary modifications (e.g. the detaining state is unlikely to concern itself
with purely disciplinary offenses of PoWs).113 Coming back to General Noriega,
U.S. courts made the point that his trial before a civilian court was consistent with
Geneva Convention III requirements because a U.S. service member could be tried
either by a civilian court or by court-martial for comparable offenses.114
Certain civilians are also entitled to PoW status. They include “Persons who
accompany the armed forces without actually being members thereof, such as civil-
ian members of military aircraft crews, war correspondents, supply contractors,
members of labour units or of services responsible for the welfare of the armed
forces” and “Members of crews, including masters, pilots and apprentices of the
merchant marine and the crews of civil aircraft of the Parties to the conflict, who
do not benefit by more favourable treatment under any other provisions of inter
national law.”115 Despite being civilians, these persons ought to be assimilated in
their legal status to members of the armed forces of the detaining state. This may
lead to a situation where a military trial of a civilian is not only permitted but actu-
ally required by the law of armed conflict.
109
GCIII, Art. 85.
110
For a discussion of this development, see Allan Rosas, The Legal Status of Prisoners of War (1976),
367–375; Geoffrey Best, War and Law since 1945 (1994), 137–138.
111
See U.S. v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990); U.S. v. Noriega, 808 F. Supp. 791 (S.D. Fla.
1992).
112
GCIII, Art. 83(1). The Convention also makes it clear that, in any event, the court trying a PoW
must offer essential guarantees of independence and impartiality. Ibid., Art. 83(2).
113
See AFA, section 371A (allowing the application of AFA provisions to PoWs by Royal Warrant,
subject to modifications contained in the warrant); UCMJ, Art. 2(a)(9) (making the UCMJ applicable
to “Prisoners of war in custody of the armed forces”) and Art. 18 (extending general court-martial
jurisdiction to “any person who by the law of war is subject to trial by a military”); DFDA, section 7
(making the DFDA applicable to prisoners of war “as if [they] were members of the Defence Force and
also defence members” subject to certain modifications made by regulation).
114
Noriega (n. 111) 1525–1526. 115
GCIII, Art. 4A(4) and (5).

Importantly, unprivileged belligerents—whether civilians taking part in hostil

ities, or combatants who have been caught spying or otherwise out of uniform—
are not entitled to be treated as PoWs.116 They accordingly do not benefit from the
principle of assimilation. They may be tried in a forum and under a procedure
different than that applicable in the capturing armed forces.117 However, any such
trial would have to take place before an impartial and regularly constituted court
respecting the generally recognized principles of regular judicial procedure spelled
out in Art. 75 of Additional Protocol I which is considered reflective of customary
law on the point.
Also, as PoW status does not exist in non-international armed conflicts, the
principle of assimilation is inapplicable. However, with respect to “Persons taking
no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention,
or any other cause,” Common Article 3 of the Geneva Conventions specifically pro-
hibits “the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”118
In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commis-
sions created by a Military Order of President George W. Bush119 to try detainees at
Guantánamo Bay were in violation of Common Article 3. The Court approvingly
cited the International Committee of the Red Cross’s (ICRC’s) Commentary and
Customary International Law Study to the effect that “regularly constituted” courts
would mean courts “established and organised in accordance with the laws and pro-
cedures already in force in a country” and would include “ordinary military courts”
and exclude “all special tribunals.”120 In terms of the “judicial guarantees . . . recog-
nized as indispensable,” the Supreme Court mentioned “at least the barest of those
trial protections that have been recognized by customary international law,” many
of which, as the Court noted, are described in Art. 75 of Additional Protocol I.121 As
a consequence, Congress created a statutory basis for the military commissions in
2006 and enhanced the due process rights of the accused in 2009. The compatibility
of the new arrangement with Common Article 3 remains unclear.122
116
See R. R. Baxter, “So-Called ‘Unprivileged Belligerency’: Spies, Guerillas and Saboteurs,” (1951) 28
British Yearbook of International Law 323 ff.
117
Conversely, use by the United States of military commissions to try individuals detained in recent
conflicts who qualify for PoW status would be unlawful. Evan J. Wallach, “Afghanistan, Quirin, and
Uchiyama: Does the Sauce Suit the Gander?,” (Nov. 2003) Army Lawyer 18 ff.
118
Geneva Conventions, Common Art. 3(1)(d).
119
Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War against
Terrorism (Nov. 13, 2001).
120
Hamdan v. Rumsfeld, 548 U.S. 557, 632–633 (per Stevens, J.), 643 (Kennedy, J., concurring) (2006).
121
Hamdan v. Rumsfeld (n. 120) (per Stevens, J.), 643 (Kennedy, J., concurring).
122
For a number of excellent essays on the military commissions, see Fionnuala Ní Aoláin and Oren
Gross (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative
Perspective (2013).

344 rain liivoja
2. Trial of civilians in occupied territory

Under the law of armed conflict, “Territory is considered occupied when it is
actually placed under the authority of the hostile army,” irrespective of whether
that army meets any armed resistance.123 Thus, occupation refers to any situation
where one state has obtained effective military control of the territory of another
state without the latter’s consent. International law presumes occupation to be of a
temporary and transitory character: the occupant obtains no title to the territory,
merely administering it in accordance with international law, and is supposed to
leave a minimal “footprint.” This is reflected in a key provision of the law of occupa-
tion in the 1907 Hague Regulations:
The authority of the legitimate power having in fact passed into the hands of the occupant,
the latter shall take all the measures in his power to restore, and ensure, as far as possible,
public order and civil life, while respecting, unless absolutely prevented, the laws in force in
the country.124
The 1949 Geneva Convention IV clarifies this framework and seeks to ensure that
the occupier takes the interests of the inhabitants of the occupied territory more
fully into account.125 Convention IV specifies that, subject to certain limited excep-
tions, “penal laws of the occupied territory shall remain in force” and “the tribunals
of the occupied territory shall continue to function in respect of all offences covered
by the said law.”126 At the same time, the Convention permits the occupant to enact
new penal law to enable it to fulfill its obligations under the law of armed conflict,
to maintain the orderly government of the territory, and, importantly, to ensure
its own security.127 Local courts, however, are likely to resist the idea of applying
the security legislation enacted by the occupying power that would provide, for
example, for the punishment of civilians committing acts of sabotage against the
occupant. The occupant does not have the authority to extend the jurisdiction of
its own ordinary court system to cover the occupied territory.128 To fill this judicial
void, Art. 66 of Geneva Convention IV expressly permits the occupying power to
“hand over the accused to its properly constituted, non-political military courts, on
condition that the said courts sit in the occupied country.” Such “occupation courts”
have in fact been created in situations of occupation both before and after the entry
into force of the 1949 Geneva Conventions.
123
H.R., Art. 42(1); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of
War (Aug. 12, 1949) 75 UNTS 287 (GCIV), Art. 2(2).
124
H.R., Art. 43(1). The phrase “l’ordre et la vie public” appearing in the authentic French text has
sometimes been mistranslated as “the public order and safety.” See Edmund H. Schwenk, “Legislative
Power of the Military Occupant under Article 43, Hague Regulations,” (1945) 54 Yale LJ 393 ff.
125
See generally Eyal Benvenisti, The International Law of Occupation (2nd ed., 2012), ch. 4.
126
GCIV, Art. 64(1).
127
GCIV, Art. 64(2). See also Marco Sassòli, “Legislation and Maintenance of Public Order and Civil
Life by Occupying Powers,” (2005) 16 European Journal of International Law 661 ff., 668–682.
128
U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (2004), para. 11.59.

The condition incorporated into Art. 66 that occupation courts must be

“non-political” seeks to prevent the recurrence of the World War II-era Axis prac-
tice of using the judiciary as an instrument of political or racial persecution.129 Thus,
this condition reinforces the guarantees of impartiality.
The requirement for the courts to be “properly constituted” proves somewhat
more challenging to interpret. There is broad agreement that this phrase excludes
“all special tribunals”130 and “Special courts set up on an ad hoc basis.”131 The ICRC
Commentary suggests, moreover, that “It is the ordinary military courts of the
Occupying Power which will be competent.”132 However, in practice, the occupant is
more likely to establish occupation courts that are distinct from the justice system
that deals with offenses within its armed forces, at least partly because “it is desir-
able to follow forms of judicial procedure generally similar to the forms to which
the native population is accustomed.”133 Thus, for example, during World War II, the
United States had set up “military commissions” or “military government courts” in
Europe with rules of procedure incorporating “features of Continental Practice.”134
Also, the Israeli occupation courts operating in Palestinian territories are “de-linked
from the ordinary military tribunals.”135 Hence, occupation courts tend to be less
regular than ordinary courts in that they are created specifically to address a war-
time situation. In view of this state practice, the better reading of the words “prop-
erly constituted” in this context may be that the courts must have a clear legal basis
and a clear process for judicial appointments.
As discussed earlier, military courts take different forms, which raises the ques-
tion as to the possible composition of occupation courts. The ICRC Commentary
suggests that “military courts” mean “courts whose members have military status
and are subordinate to the military authorities.”136 Thus, one possible interpretation
of Art. 66 is that “the judges must be members of the armed forces of the occupy-
ing power. In this way, the responsibility of the armed forces for the administration
129
Jean S. Pictet (ed.), Geneva Convention IV relative to the Protection of Civilian Persons in Time of
War: Commentary (1958), 340. 130
Pictet (n. 129).
131
Hans-Peter Gasser, “Protection of the Civilian Population,” in Dieter Fleck (ed.), The Handbook of
International Humanitarian Law (2nd ed., 2008), 237–323 ff., § 569, commentary para. 2.
132
Pictet (n. 129) 340.
133
Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice
of Belligerent Occupation (1957), 112–113; see also Morris Greenspan, The Modern Law of Land Warfare
(1959), 255.
134
Von Glahn (n. 133) 113. Further on the U.S. courts, see e.g. Eli E. Nobleman, American Military
Government Courts in Germany: Their Role in the Democratization of the German People (1950); Worth
B. McCauley, “American Courts in Germany: 600,000 Cases Later,” (1954) 40 American Bar Association
Journal 1041–1045 ff.
135
Yoram Dinstein, The International Law of Belligerent Occupation (2009), 137. On the operation of
these courts, see Sharon Weill, “The Judicial Arm of the Occupation: The Israeli Military Courts in the
Occupied Territories,” (2007) 89(866) International Review of the Red Cross 395 ff.; Lisa Hajjar, Courting
Conflict: The Israeli Military Court System in the West Bank and Gaza (2005).
136
Pictet (n. 129) 340.

346 rain liivoja
of the occupied territory and for enforcing the law of occupation is emphasized.”137
Another view is that “The occupation courts may consist of either military or civil-
ian judges, but they must be responsible to the military authorities of the occupying
power.”138 Interestingly, after World War II, U.S. occupation courts were eventually
transferred under the control of the Department of State. The U.S. Supreme Court
took the view that U.S. military control over the courts was retained by the fact that
the Department of State reported to the President who is also the Commander in
Chief of the U.S. armed forces.139
That occupation courts must sit in occupied territory is connected to the abso-
lute ban on removing civilians from the occupied territory and the requirement
for them to be detained—pending determination of guilt and while serving their
sentence—in the occupied territory.140 The ICRC Commentary suggests that this
need to sit in the occupied territory is indeed one of the reasons why the courts
must have a military character,141 suggesting that civilian courts would have greater
difficulty doing so.
As all of this shows, while the law of armed conflict certainly sets restrictions on
the use of military courts in occupied territory, it unambiguously permits the use of
such courts by the occupant. Despite the view of some human rights treaty bodies
that military courts should be precluded from trying civilians,142 in this respect the
law of armed conflict ought to be controlling as lex specialis. In other words, the
military nature of the occupation courts and the process of appointing its judges
should not be enough to challenge the compatibility of the proceedings before these
courts with human rights instruments.
However, the law of armed conflict specifies a number of due process guaran-
tees that any occupation courts would have to honor.143 This includes the prohibi-
tion of retroactive law144 and the right to a “regular” and “fair” trial that affords all
essential judicial guarantees (including the presumption of innocence, the right to
be informed of the charges, the right to present evidence, the right to counsel, the
right to be present at one’s trial, the right not to incriminate oneself, the right to call
and examine witnesses, and ne bis in idem).145 Inasmuch as the existence of these
provisions in the law of armed conflict makes it impossible to derogate from the
corresponding obligations under human rights law,146 human rights and the law of
armed conflict become mutually supportive in this context.
137
Gasser (n. 131) § 569, commentary para. 2.
138
U.K. Ministry of Defence (n. 128) para. 11.59.1; similarly von Glahn (n. 133) 116.
139
Madsen v. Kinsella, 343 U.S. 341, 357 (1952). 140
GCIV, Arts. 49(1) and 76(1).
141
Pictet (n. 129) 340. 142
See n. 5 and accompanying text.
143
See generally U.K. Ministry of Defence (n. 128) paras. 9.6, 11.60–11.74; Gasser (n. 131) § 570.
144
GCIV, Art. 67; API, Art. 75(4)(c); CIHL (n. 11) rule 101.
145
GCIV, Arts. 71–72; API, Art. 75(4); see also CIHL (n. 11) rule 100. Note, however, that ne bis in
idem does not preclude retrial by the local courts. Dinstein (n. 135) 140.
146
cf. Dinstein (n. 135) 143.

Some difficulties may arise, however, with regard to the right to appeal of civil-
ians in occupied territory. In this respect, Geneva Convention IV provides that
“Courts of appeal shall preferably sit in the occupied country.”147 This provision has
to be read in conjunction with another provision of the Convention, which provides
that in the absence of courts of appeal, petitions must be addressed to the “compe-
tent authority of the Occupying Power.”148 Consequently, the law of armed conflict
cannot be interpreted as creating an obligation for courts of appeal to be created,149
Geneva Convention IV merely specifies where such courts—if created—should
sit. Human rights law, on the other hand, requires the availability of recourse to a
higher judicial body: for example, the ICCPR provides that “Everyone convicted
of a crime shall have the right to his conviction and sentence being reviewed by a
higher tribunal according to law.”150 Given that the law of armed conflict does not
explicitly authorize the occupant to withhold the right to appeal, it could be argued
that the law of armed conflict by itself is incapable of qualifying the right to appeal
as it exists under human rights law. However, a derogation from the relevant ICCPR
provision is possible and an occupant might need to avail itself of this possibility if
it wishes to process appeals non-judicially.
v. Security, States of Emergency,

and Military Justice
Military justice can play a role in circumstances where, in response to a grave pub-
lic emergency, a “state of siege” (l’état de siege) has been declared or “martial law”
imposed.151 Such a declaration typically entails the (partial) suspension of the nor-
mal mode of governance, especially assistance provided to the civilian authorities
by the military or, in more extreme versions, the substitution of military authority
for certain civilian governmental functions. The latter may include the extension
of the competence of military courts to deal with offenses committed by civilians
against the security of the state and sometimes even ordinary crimes. Historical
examples abound. For example, when martial law was declared in Hawaii in 1941 in
147
GCIV, Art. 66. 148 GCIV, Art. 73.
149
Von Glahn (n. 133) 117; HCJ 87/85 Arjoub v. IDF Commander in Judea and Samaria (1988) 42(1)
IsrSC 353, 367–370. 150
ICCPR, Art. 14(5).
151
For a discussion of the different models of emergency powers, see in particular Max Radin,
“Martial Law and the State of Siege,” (1942) California LR 634 ff.; Joseph B. Kelly and George A. Pelletier,
Jr., “Theories of Emergency Government,” (1966) 11 South Dakota LR 42 ff.; Oren Gross and Fionnuala
Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006), 17–109.

348 rain liivoja
the wake of the Japanese attack on Pearl Harbor, jurisdiction over all criminal cases
was promptly given to a system of military commissions and courts.152 Whether mil-
itary courts can lawfully be given such extended jurisdiction in times of emergency
depends on the procedure of such courts, the constitutional provisions of the state
in question, and, contemporarily, the possibility of derogating from international
human rights law obligations.
Some states have also sought to establish militarized courts for the trial of
particular categories of offenses—especially terrorism-related offenses—with-
out a declared state of emergency. For example, in the 1980s, after a period of
military rule, Turkey established a system of State Security Courts to try crimes
against the security of the state. Those courts operated with panels of three
judges, one of whom was a military officer. The European Court of Human
Rights was highly critical of this arrangement holding that the presence of a
military judge gave a defendant legitimate cause to doubt the independence and
impartiality of the court, amounting to a violation of the European Convention
on Human Rights.153 As a result, the State Security Courts were abolished in
2004.
vi. Concluding Remarks

The practice of states in relation to military justice is diverse and in something of
a flux: numerous states have recently reformed their military justice systems or are
contemplating (further) reforms. The trend is clearly toward civilianization: mili-
tary courts increasingly operate like their civilian counterparts or are abolished
altogether.154 This is a welcome development on the assumption that it can be imple-
mented without adversely affecting military discipline.
Much of the change in military justice has resulted from the exercise of closer
civilian control over the armed forces and the influence of human rights law. Human
rights treaty bodies have been skeptical of the independence and impartiality of
military courts. Gross misuses of military justice by autocratic regimes in many
152
See e.g. Garner Anthony, “Martial Law in Hawaii,” (1942) 30 California LR 371 ff.
153
Incal v. Turkey, App. no. 22678/93, ECtHR (Grand Chamber), Judgment of 9 June 1998, paras.
72–73.
154
See e.g. Rubin, (2002) 65 Modern LR 36 ff.; Matthew Groves, “The Civilianisation of Australian
Military Law,” (2005) 28 University of New South Wales LJ 364 ff.; Stephen I. Vladeck, “The Civilianization
of Military Jurisdiction,” in John T. Parry and Song Richardson (eds.), The Constitution and the Future
of Criminal Law in America (2013), 287 ff.

parts of the world demonstrate155 that these concerns are well founded. However, it
is probably erroneous to think that military courts can never be sufficiently inde-
pendent or impartial to meet human right standards.156
References
Andreu-Guzmán, Federico, Military Jurisdiction and International Law: Military Courts and
Gross Human Rights Violations (2004)
Blackett, Jeff, Rant on the Court Martial and Service Law (3rd ed., 2010)
Bucherer, Jeanine, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires
Verfahren gemäß Art. 6 Abs. 1 EMRK, Art. 8 Abs. 1 AMRK und Art. 14 Abs. 1 des UN-Paktes
über bürgerliche und politische Rechte (2005)
Duxbury, Alison and Groves, Matthew (eds.), Military Justice in the Modern Age
(forthcoming)
Fidell, Eugene R. and Sullivan, Dwight H. (eds.), Evolving Military Justice (2002)
Fidell, Eugene R., Hillman, Elizabeth L., and Sullivan, Dwight H., Military Justice: Cases and
Materials (2nd ed., 2012)
Fisher, Louis, Military Tribunals and Presidential Power: American Revolution to the War on
Terrorism (2003)
Horvat, Stanislas, van Hespen, Ilja, and van Gijsegem, Veerle (eds.), International Conference
on Military Jurisdiction: Conference Proceedings (2013)
Liivoja, Rain, Extraterritorial Criminal Jurisdiction over the Armed Forces (forthcoming)
Ní Aoláin, Fionnuala, and Gross, Oren (eds.), Guantánamo and Beyond: Exceptional Courts
and Military Commissions in Comparative Perspective (2013)
Nolte, Georg (ed.), European Military Law Systems (2003)
Vashakmadze, Mndia, Understanding Military Justice: Guidebook (2010)
Winthrop, William, Military Law and Precedents (2nd ed., 1920)
For a particularly bleak view, see Federico Andreu-Guzmán, Military Jurisdiction and International
155
Law: Military Courts and Gross Human Rights Violations (2004). 156

Rowe (n. 1) 101.

2014 Military Justice

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The Oxford Handbook of

9780199673599_Hornle_Book.indb 3 10/28/2014 1:05:38 PM

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i. Introduction to Military Justice

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ii. Due Process and Military Justice

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Admittedly, military justice has organizational and procedural peculiarities that

iii. Military Discipline and Military

. Military discipline and the law

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9780199673599_Hornle_Book.indb 329 10/28/2014 1:06:06 PM

2. Substantive law

a) Military offenses

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b) Ambit of the law 41

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c) Military defenses

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as the gradual narrowing of the commander’s authority to impose punishment

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b) Judicial proceedings

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Military Prosecutions74 and the courts-martial is empanelled by a similarly inde-

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c) Rationale for a separate military justice system

9780199673599_Hornle_Book.indb 338 10/28/2014 1:06:06 PM

contemporary observer. As for disciplinary needs, many states deem it possible to

9780199673599_Hornle_Book.indb 339 10/28/2014 1:06:06 PM

iv. Armed Conflict and Military

1. Trial of enemy belligerents

9780199673599_Hornle_Book.indb 340 10/28/2014 1:06:06 PM

9780199673599_Hornle_Book.indb 341 10/28/2014 1:06:06 PM

9780199673599_Hornle_Book.indb 342 10/28/2014 1:06:07 PM

Importantly, unprivileged belligerents—whether civilians taking part in hostil­

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2. Trial of civilians in occupied territory

9780199673599_Hornle_Book.indb 344 10/28/2014 1:06:07 PM

The condition incorporated into Art. 66 that occupation courts must be

9780199673599_Hornle_Book.indb 345 10/28/2014 1:06:07 PM

9780199673599_Hornle_Book.indb 346 10/28/2014 1:06:07 PM

v. Security, States of Emergency,

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vi. Concluding Remarks

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Law: Military Courts and Gross Human Rights Violations (2004). 156

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Importantly, unprivileged belligerents—whether civilians taking part in hostil