Military tribunals have been used historically, especially in times of conflict. A military court, as opposed to a civilian court, is in charge of these judicial processes. Military courts typically try military personnel implicated in major offenses such as treason or crimes against humanity and citizens charged with terrorism or national security offenses. Passed by Congress in 1950, the Uniform Code of Military Justice (UCMJ) provides procedural and substantive laws that regulate the military court system (Dehn, 2017). When it comes to determining whether or not a crime ought to be prosecuted and how the perpetrators should be penalized, military commanders have more leeway than their civilian counterparts. The flexibility of military courts emphasizes how crucial it is to understand their functions beyond the common belief that they are only intended to render judgments and impose penalties in cases of violations of military law.
The Purview of a Military Tribunal
Understanding the distinction between a military and a civilian court is vital to understanding who may be brought before a military tribunal. When someone is charged with a crime unrelated to the military, a civilian court is usually used to prosecute the person. These tribunals are presided over by civilian magistrates and operate under civilian statutes. For instance, the civilian legal system would be employed if situations where one is accused of shoplifting as the justification for military involvement. Conversely, if a service member is accused of stealing from another, the case would most likely be heard in a military court. Civilians suspected of major crimes like terrorism or espionage may be tried in military tribunals alongside service personnel. When a civilian’s offenses pose a risk to the country, the law enforcement system must refer the case to the military (Al-Kassimi, 2019). Broadly, a military tribunal has the authority to prosecute anybody who falls within the jurisdiction of military law.
In times of conflict, military courts are frequently used to prosecute enemy informants or personnel of adversaries, although their usage is not only restricted to such situations. Congress grants the President the authority to establish military courts in the United States (Dehn, 2017). Serious crimes committed by service members are often investigated by a criminal investigative organization like the Army’s Criminal Investigation Command (CID) (Criminal Investigation Command, 2017). Military or security law enforcement detectives have power over less severe violations and most military-related offenses. In the circumstances concerning minor infractions, the accused’s immediate superior will undertake or compel to be conducted a preliminary investigation (Department of Defense, n.d). Attorneys are actively engaged in assisting commanders at all stages of the procedure.
As stated above, a military tribunal may try anybody subject to military law. Armed forces personnel make up the main and most popular group. They comprise people who are or were in the armed forces such as the Navy, air force, marines, and coast guard. Everyone serving in the military, whether on active duty, in the reserves, or the National Guard, is bound to the military code and can be prosecuted by a court-martial if suspected of infringing the law. The second category consists mostly of hostile combatants encountered on battlefields. People who battle against the U. S. in wartime or other ongoing conflict are considered enemies of the state. A military court may prosecute those suspected of breaching the law. The last group consists of civilian employees of the armed forces, who are perhaps the least well-known. This encompasses contractors, staff members of defense firms, and other non-military civilians. Based on the context, such as the type of offense, any of these people could become guests of a military tribunal.
Processes in Military Tribunals
The topmost trial court in the armed services is a general court-martial. The most severe offenses are tried in this court against military personnel. The general court jurisdiction is martial to impose the penalty restricted by the highest permissible penalty for every infraction as specified in the Manual for Courts-Martial (Department of Defense, n.d). An Article 32 inquiry is required before any indictment can be presented to a general court-martial. This inquiry is similar to the United States federal grand jury probe. When the hearing is over, the Article 32 commissioner will guide on handling the charges (Department of Defense, n.d). The presiding body is not required to abide by the suggestion. There are two possible formats for the general court-martial. It can be made up of only a military judge, one military judge, and at least five other people. In every case—aside from those classified as capital cases—the accused has the option of a judge-only trial. There must be at least five judges present for a trial to proceed (Department of Defense, n.d). An accused enlistee has the right to seek a reduction of their enlistment status to no less than one-third.
There are many parallels between a court-martial and a criminal trial under civilian law. The variances may be traced back to many mandatory processes. Evidence guidelines in the armed services are based on the Federal Rules of Evidence (Department of Defense, n.d). The jury or judge considers the evidence presented and decides whether or not the alleged offender is guilty. The jury must be convinced beyond a shadow of a doubt that the defendant is culpable to reach a guilty verdict (Department of Defense, n.d). Once the defendant has been found guilty, a sentencing hearing is convened. A person who is found guilty by a court-martial has the right to have their trial reviewed. The presiding jurisdiction must be convinced that a court conviction martial and sentences are justified by the facts before they may be approved (Department of Defense, n.d). Whether a higher or lower court reviews an accepted sentence determines the review type. There are certain appeals that the US Supreme Court may hear.
The convening authority’s review is the first action in the appeal’s procedure. A court penalty may be approved in whole or in part by the prosecuting body, which may modify a sentence or substitute an alternative punishment provided the harshness of the original sentence is not exacerbated (Department of Defense, n.d). Suppose the prosecuting authority accepts a disciplinary termination such as dishonorable discharge or detention longer than a year. In that case, the Department’s Court of Criminal Appeals must examine the case proceedings (Department of Defense, n.d). A panel of military judges will review the case and determine whether or not the trial’s outcomes and punishment are proper under the law. The court may overturn the verdict and sentence or lessen the penalty, but it cannot make it more severe.
The Court of Appeals for the Armed Forces, the subsequent tribunal in the appeal system, comprises five non-military magistrates nominated by the President for 15 years. The court exclusively considers legal issues. A writ of certiorari from this court may be filed with the Supreme Court by either the defendant or the state (Department of Defense, n.d). The Supreme Court’s decision to examine a case is optional and seldom occurs.
To summarize, a military tribunal is a court with the authority to decide legal questions and impose penalties for violations of military regulations. It is not easy to grasp the military trial system since most military affairs are conducted in secrecy. Nonetheless, a military attorney can guide anyone through the court-martial procedure. It is highly suggested that anybody facing a court-martial get in touch with a counsel as promptly as possible.
Al-Kassimi, K. (2019). Critical terrorism studies (CTS):(State)(sponsored) terrorism identified in the (militarized) pedagogy of (US) law enforcement agencies. Cogent Social Sciences, 5(1), 1586813.
Criminal Investigation Command. (2017). United States Army. US Army, 571, 305-4041. Web.
Dehn, J. C. (2017). Why a President Cannot Authorize the Military to Violate (Most of) the Law of War. William & Mary Law Review, 59, 813. Web.
Department of Defense (n.d). Military Justice Overview – Victim and Witness Assistance Council. Defense.gov. Web.