MILITARY LAW

the body of law concerned with the maintenance of discipline in the armed forces. Military law in no way relieves military personnel of their obligations to their country's civil code or to the codes of international law, as recognized in various conventions. In any armed force a disciplinary code is necessary to ensure that the will of the commander is obeyed. In Rome, military law was formalized in the 5th century AD in the Digest and Codex of the emperor Justinian. Until then, Roman military law varied according to the individual commander. In the European Middle Ages, military law was defined by ordinances or articles of war issued by the sovereign or by a commander designated by him at the outset of each new campaign. The articles of war of Maurice of Nassau, prince of Orange, and Gustav II Adolf formed the basis of military law throughout Europe, which, revised, reformed, and amended, continues to this day. The jurisdiction of military law extends, in different countries and in different degrees, to any offense committed by a member of the armed forces. It also extends to any offense injurious to military discipline, whether committed by a soldier or by a civilian. Soldiers who fail to respond to military conscription in some countries are subject to military law for such offenses as desertion or self-mutilation. Reservists in some countries are subject to military law for such offenses as treason, revelation of state secrets, or communication with foreign countries. Ordinary civilians in some countries may be prosecuted in military courts on charges of treason, rebellion, fraud, or impeding military operations. In other countries, civilians may not be prosecuted in military courts unless accused of crimes committed in a war zone or during a state of siege. Some countries recognize no military offenses by civilians. Prisoners of war fall under military jurisdiction as well, and their rights have been established by the Geneva Prisoner of War Convention of 1949. Mutiny, insubordination, desertion, and misconduct in action constitute violations of military law, but military law usually extends further to all actions committed by soldiers in foreign territory that would constitute offenses against the civil code of their home countries. A soldier may be prosecuted in a civil court for severe crimes against his civil code. Continental European countries tend to distinguish between military crimes subject to judicial punishment and breaches of discipline subject to administrative action. Members of the Commonwealth and those countries whose military law derives from the Anglo-Saxon model do not make such a distinction, instead regarding all military offenses as subject to judicial punishment. In most countries, summary penalties such as loss of privileges, cancellation of liberty, and fines can be imposed by officers not lower than the rank of captain; the commanding officer of the unit is the principal source of discipline. A soldier may appeal against summary punishment, either to a higher military authority or to a tribunal. In most countries, offenses beyond a commanding officer's jurisdiction are tried in a service court, or court-martial. Prior to trial by court-martial, a military magistrate conducts a formal investigation of the charges. A court-martial is generally tried by between three and seven judges selected from the officer corps. In times of war, military offenders are almost always tried in military courts, regardless of whether the country has civilian jurisdiction over military personnel. The degree to which a soldier is responsible for unlawful conduct committed on orders from a superior officer is a question that is widely debated by the architects of modern military law and by scholars of war crime. the body of law concerned with the maintenance of discipline in the armed forces. Every state requires a code of laws and regulations for the raising, maintenance, and administration of its armed forces, all of which may be considered the field of military law. The term, however, is generally confined to disciplinary military law as defined above, i.e., that part of the code that aims at and sanctions the maintenance of discipline in the armed forces. In the past this was also known by the name of martial law, a term that now has the meaning of military enforcement of order upon a civil population either in occupied territory or in time of disorder. Members of armed forces do not cease under modern conditions to have duties as citizens and as human beings. All systems of military law thus must aim to ensure that the soldier is in no way enabled to escape the obligations of his country's ordinary law or of international law as recognized in various conventions. Additional reading The development of military law in the United States is traced in United States Army, Judge Advocate General's Corps, The Army Lawyer: A History of the Judge Advocate General's Corps, 17751975 (1975); and Military Law Review Bicentennial Issue (1975), an anthology of articles by 17 authors. Both are useful for the general reader as well as the specialist. A concise history of British military law is found in Peter Rowe, Defence: The Legal Implications: Military Law and the Laws of War (1987). Frederick B. Wiener, Civilians Under Military Justice: The British Practice Since 1689, Especially in North America (1967), offers a general history of the subject, with a focus on the British administration of 18th-century America. A special aspect of military law is treated in Nico Keijzer, Military Obedience (1978). International Society for Military Law and the Law of War, The Present Evolution of Military Justice, 2 vol. (1981), studies systems of military law throughout the world on the basis of national reports from 25 countries. See also James Stuart-Smith, Military Law: Its History, Administration, and Practice, Law Quarterly Review, 85:478504 (October 1969). James Stuart-Smith