Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you: No adverts like this in the forums anymore. Times and dates in your local timezone. Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance. Email notifications for threads you want to watch closely. Being a part of the oldest wargaming community on the net. If you are already a member then feel free to login now.

For Legal in Year 12 I'll be writing an essay up on Military Law as it is a facet of law that has always intrigued me to no end. This is mostly due to the fact that there is so little information readily available on Australian Military Law. After reading up on some cases (The My Lai Massacre, Yamashita, Whittaker and others), most of which are from the US, I've run into a bit of a dead end.

Any and all help would be much appreciated, especially anything specifically concerning Military Law in Australia. I've ordered books from a wide range of libraries on the matter, but it'll still be a couple of days/weeks before they get in. Dakka seems to have its fair share of vets and military folks, so some personal experiences (hell, first hand accounts of Court-Martial proceedings ) would be fantastic. Even just the average Dakkaites opinions on Martial Law and its Boons/Failings are more than welcome.


Things to Discuss.

1) Workings of Military Law.
2) Fairness of trials. (Innocent until proven guilty? Standard of Guilt? Jury of Superior Officers?)
3) Benefits/Downsides of Martial Law.
4) Precedent/Prominent Cases. (Australian Ones would be fantastic)
5) The effectiveness of Military Law. (My Lai, ect. Does it really help prevent these 'incidents' or just serve to whitewash/cover them up?)
6) The Ramifications of applying Martial Law to the general public.
7) What improvements/changes you think might/should be made to Martial law.
8) Anything that has slipped my mind.

So please, go ahead.

Well just to chuck something in from my own perspective. When I was in the UK forces, we were always told that in some cases, military law was in addition to the law of the land. For example, I could be arrested for drunk and disorderly at the weekend and then find myself hauled up in front of regimental disciplinary as well. Theoretically, this can work for any crime; so technically, you could be aquitted of murder in a civilian court yet still be punished under military law. Also, any charges brought against you are stored on your 'file' and are taken into account as character marks when/if you need to get security clearance to work within government or military establishments.

Did you ever have any run-ins personally?

From Air Force Law Review.

Interesting article on the attempt to dismantle courts martial.

Emperors Faithful wrote:Did you ever have any run-ins personally?

Not me personally, but I knew of several who did. One chap for example was done for drink driving whilst on leave. He lost his license. When he got back to the regiment, he had further punishment - his job title was Driver so he had pretty much sacked himself. He got a whole bunch of ROPs - know in the UK as Restriction of Privileges, basically confined to quarters, that sort of thing. He also had to be given other duties as he couldn't drive anything whilst banned. In this particular case, there wasn't any kind of military trial or tribunal; he had already been found guilty by criminal court and so was guilty under military law automatically.

I am surprised that military law isn't fully documented.

Get yourself on to a decent university library law section.

http://lmgtfy.com/?q=Uniform+Code+of+Military+Justice / http://www.military-network.com/main_ucmj/main_ucmj.htm
^This breaks it down for US law.


These are what you're looking for about Austrailian military law:
1. 1901 - Federation of Australia and creation of Australian laws;
2. 1903 - Defence Act 1903;
3. 1904 - Australian Military Regulations and Orders (AMR&O);
4. 1941 - Manual of Military Law 1941 - Australian Edition;
5. 1964 - Army Law Manual (ALMs) Volumes 1 and 2; and
6. 1982 - Defence Force Discipline Act (DFDA) although commenced operation in July 1985.

I know that many countries' military laws are based at least in part on the old "Lieber Code" of 1863:

http://en.wikipedia.org/wiki/Lieber_Code

It was one of the first modern codifications of military law and helped to form a great deal of the later Hague Conventions of 1907.

As for prominent cases look up Breaker Morant, its an actual movie dealing with the courts martial of three Australians in the Boer War.

Ah yes, I've seen that and also had to write up on it in an exam. But wasn't that under the British system? (Not that Australia is all that different but still...)

Thanks for the links, I'll look through them when I get the chance.

Yes but if I remember correctly the fact that they could be courtmartialed at all by a non Australian military while members of the Australian military on loan to them did come up. Which would be pertinent to Military Law I would presume.

Australia wasn't a sovereign nation in its own right until 1901 and the act of Federation. They were still Colonial soldiers in the Boer wars. Colonies of Britain.

WW1 was the first conflict where the soldiers fought as part of an "Australian" Armed Forces.

Yes but the trial was in 1902 if I remeber correctly.

Well, I was a military policeman in the United States Army and our military justice system comes from the Uniform Code of Military Justice. The US Military Justice system is suppose to operate under the premise of "innocent till proven guilty." This is true when it comes to the court marshal system which has three different classifications which I will get into later.

First of all, Military Police and their investigators are a reporting law enforcement agency. This mean that while we do enforce local, military and federal law we do not house inmate unlike civilian law enforcement. When a military member is arrested by the military police they are turned over to their chain of command for pre-trial confinement. Civilians are handled completely outside the USMJ and not a focus of this post. So, the primary job of military police in a law enforcement missions is to safe guard the public and government property from damage and loss and if an incident is spotted then they are to act to halt the criminal activity and then report it to the correct authority for further action.

Now when it comes to the handling of charges is done is two ways which is Non-Judicial Punishment (Article 15) and Judicial Punichement (Court Marshal). Non-Judicial Punishment is where the offense of the UCMJ which can be for nearly any offense that the command wishes as long as the offense is minor. The punishment can be extra duty, restriction to base, loss of pay and even reduction in grade. While Article 15's do go into the soldier's record it is not a criminal conviction so the burdens of proof is not nessesary. Guilty till proven innocent is legal when it comes to an Article 15 but the soldier does have the right to appeal the Article 15 to a court marshal. Sometimes JAG (military lawyers) will inform the soldeir to take the Article 15 because there is enough evidence to convict in a court marshal.

Now when it comes down to a court marshal there is three types of court marshal which are Summary Court Marshal, Special Court marshal and General Court Marshal. The difference in the three different court marshal is who is the persiding judge and if there is a jury. A Summery Court Marshal is normally held at the Battalion Level very limited punishment powers, no jury and the battalion commander is the judge.

The second level is a special court marshal and the court is outside the unit. There is a special judge and a small jury of peers. It's punishment powers are greater. The last court is the General Court Marshal which is the closest to a civilian court. This has a full jury and is the only court that can give the death penality.

Unlike civilian courts, military courts can be suprisingly quick. I will give you an example.

When I was stationed at Fort Bragg we reported to a shots fired call in the main post. Upon arriving two soldiers opened fire on our patrol car turning it into swiss cheese. In the exchange of fire I was hit in the shoulder by a round and it passed through my vest.

Once SRT got to the barracks room that the fire was coming from they flash banged the room and took both soldiers into custody. At Fort Bragg we had a very short term confinment facility. Both soldiers were really drunk at the time of the incident and they awoke to find that they already had a lawyers and the genral court marshal had been called. So by the end of the day they were hung over and both found guilty facing 30 + years in Leavenworth USDB. So in the space of 48 hours they were in prison.

So, if you want some more information about what I know about the US Military UCMJ you can PM me.

I'll be sure to send you a PM, Pipboy.
In the meantime, does anyone have any views on this? From Pipboys account the Military Court system is extremely expedient, but is it efficient? Should such a system be adopted by civilian courts, or at least some aspects of it?

Well, expediency is not always the best option. When the military wants a problem to disappear they can get a court marshall together in a hurry. However, I always wondered if due process is completely followed on some cases. But a majority of trials that do go to court the unit will not send it to court without a 100% seal of approval that it a conviction will happen. The only problem with havinga unit in charge of the decidsion is that the politics of the chain of command does effect the commanders decidion.

Lastly the UCMJ was written in 1955 and has not had a major update in decades. The laws in the UCMJ do not reflect the society in the military of today. When I had a hard time getting someone to confess to a crime and we had them on tape or photograph having an affair doing things other than the missionary posistion we would charge him or her with adultry and/or sodomy which are both vaild charges that would have to go to a general court marshall.

As you see is that some aspects of the UCMJ make for quick justice system but is is also very out of date.