Global Military Justice:

Where does the road lead us?

Abstract

Military criminal jurisdiction has been, for centuries, a common ground for quite a large number of states across the globe. Despite new trends and loud voices coming out of countries which have (totally or partially) abolished their military jurisdiction system, the overwhelming majority of states seem to be quite reluctant, at least at the moment, to follow this road. Over the last years, certain countries announced that they have abolished their military jurisdiction system totally, others partially, others declared that they have modernised their system, others that they only have military prosecutors (no military courts or military judges) and others that keep in having military jurisdiction under the traditional structure, meaning officers-military judges and officers-military prosecutors. Among others, nations when asked to report on their military prosecution systems, they have revealed that there is a vast variety of prosecutors who are vested with the competence to put forward a public action. Nations have referred to ordinary military prosecutors, civilian prosecutors, judge advocates, disciplinary attorneys, military prosecutors belonging to a unified Judicial Corps of the Armed Forces, officers qualified as either barristers or solicitors, legally qualified commissioned officers, Prime Ministers, regular force legal officers or government’s commissars. However, whatever the particular stance of the nations on the issue might be, there is no question that there is a common denominator which should be underlined. Clearly, it is their common acknowledgement that the armed forces continue to play a very important role in the local societies, meaning, among others, that the members thereof deserve a particular judicial treatment, should they commit criminal acts. Even nations which have completely abolished military justice and military prosecution, as institutions, have reported that they have taken other measures, either by law or practice, for this “necessary particular treatment”: They assign civilian prosecutors, investigators and policemen dealing, in principle, with cases of military nature, they have established particular mechanisms or specialized jurisdictions to ensure that the “civilian system over the members of the military” works properly and they provide for close relations between judges, prosecutors and military commanders, participation of the former in military exercises and attendance of refresher courses, in the military, in order that military judges and prosecutors remain in constant touch with military life. Nations take those measures, in order that judges, prosecutors and investigators remain updated on current military developments, despite that military justice or military prosecution does not exist, as such, therein. Over the last two decades, a great number of nations have announced that they had introduced reforms to their domestic legislation and in certain countries there is still a thorough discussion on possible reforms. In Tunisia, for instance, due to the recent fundamental institutional reforms, the whole judicial system has been modified. Discussions in Australia deal with independence and impartiality of military courts. France is considering modifying wartime legislation and abolishing of “Tribunal des Armées” which deals with offences committed by French military during operations abroad, whereas Kenya has changed its municipal law in order to make it compatible with the constitution.