Who tries the military?
September 6, 2010 9:48 AM   Subscribe

[lawfilter] What happens in your country to a soldier that kills a citizen?

Suppose that in your country, the army or navy group is called to help on a crisis and one soldier ends up killing a fellow and innocent civlian.

Will the soldier be subject to the same laws as if he were another citizen? or will they have to be judged by a military court?
posted by edmz to Law & Government (21 answers total)
 
In Britain, all service personnel are subject to both military and civil law at all times. In the instance of an incident involving a member of the armed forces killing a civilian (accidentally or otherwise), the civil police and military police would co-operate in the investigation, but the case would be seen under the auspices of the Crown Prosecution Service (a civil agency) and they would sentence the individual as the evidence and nature of the crime dictated. Even if the service person was found innocent of the crime, their conduct would still be thoroughly examined from a military perspective and they may still face repercussions in that respect.
posted by Biru at 10:00 AM on September 6, 2010


in the US, the Uniform Code of Military Justice would likely apply to an on-duty killing. Hence, the soldier would have a military judge and jury and a military prosecutor. Although a military lawyer could be appointed for them, they could also get a civilian lawyer privately. I believe only a majority of jurors need convict, but I may be wrong on that.
posted by Ironmouth at 10:12 AM on September 6, 2010


In Canada you would get tried under military law. Most people don't know that Canada has a death peanalty. Only for soldiers who commit treason or rape.
I guess a trial for murder would be contadictory.

If serving time in military jail for a crime, when your time is done, you can get picked up directly by the civilian authorities to be tried again.

I think...
posted by Ignorance at 10:18 AM on September 6, 2010


In Canada, as I understand it and only have third hand knowledge of this, the soldier is first tried by a military court. The government has the option of trying him in a civilian court but usually doesn't. If they do, and the soldier is found guilty by the military and civilian courts, the civilian prison system gets him first. When he is done there, the military basically picks him up at the front gates and delivers him to his punishment by the military.
posted by swimming naked when the tide goes out at 10:23 AM on September 6, 2010


In the US there is an entire criminal justice system within the military, including police, courts, and prisons. Their courts are known for being extremely strict. If, hypothetically, the local prosecutor didn't like the outcome in the military system, he could try the soldier in the civilian justice system. It's even possible to be tried and punished by both systems -- double jeopardy doesn't apply in military cases.
posted by miyabo at 10:30 AM on September 6, 2010


Double jeopardy doesn't apply in military cases.

You might want to look into the Kent State Shootings


posted by IndigoJones at 12:05 PM on September 6, 2010


I would think (without having any legal training) that this depends on the situation/context more than on the status of the people involved. If it's happened during legally declared war it would be very different from when it happened in a civil crisis, say a flood.
posted by oxit at 12:14 PM on September 6, 2010


in the US, the Uniform Code of Military Justice would likely apply to an on-duty killing. Hence, the soldier would have a military judge and jury and a military prosecutor. Although a military lawyer could be appointed for them, they could also get a civilian lawyer privately. I believe only a majority of jurors need convict, but I may be wrong on that.

I'm not sure this is right. The only way Title 10 applies is to the federal military and when the National Guard is acting under federal authority; in such cases, outside a very narrow set of exceptions, the Posse Comitatus Act prevents domestic action. So unless the Army is putting down an insurrection of the states (Little Rock Nine style, where the Arkansas governor activated the National Guard to defy federal law), I don't see how anyone "called to help on a crisis" could possibly be subject to the UCMJ. Maybe I'm misunderstanding whether National Guard units activated by the states but not the federal government are subject to the UCMJ instead of state law, but I think the answer is that they're subject to the same laws as any other citizens while acting in militia-like and emergency response capacities.
posted by thesmophoron at 12:24 PM on September 6, 2010


"The following persons are subject to this chapter [the UCMJ] ... members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service." 10 U.S.C. ยง 802(a)(3) (emphasis added) available at http://www.law.cornell.edu/uscode/usc_sec_10_00000802----000-.html

I'm pretty sure domestic law applies in the vast majority of cases when U.S. military members are acting both officially and domestically, and they'd be subject to civilian courts for any lawbreaking in that capacity.
posted by thesmophoron at 12:31 PM on September 6, 2010 [1 favorite]


The posse comitatus act isn't relevant if the troops aren't enforcing laws. It's possible for the federal government to deploy troops to help evacuate an area, clean up after a disaster, or stand around and look threatening during a riot without violating posse comitatus as long as they don't order anybody around.
posted by miyabo at 1:42 PM on September 6, 2010


I don't know if this answers your question, in part because I'm a little confused by your question.

But an active-duty soldier who commits a crime in the US (e.g., kills his wife while stationed at a base in the U.S.) is subject to the UCMJ. For example.

So. If the soldier is not "on duty" - that is, is not engaged in protecting property during a national emergency, but is just stationed at a base for training, or because that's where his unit works - then UCMJ seems to apply.
posted by rtha at 2:08 PM on September 6, 2010


I'm pretty sure domestic law applies in the vast majority of cases when U.S. military members are acting both officially and domestically, and they'd be subject to civilian courts for any lawbreaking in that capacity

In the US, it depends on where it happens. If it's on a military base, I believe that's considered federal territory and not considered to be state territory. Likewise if it happens on an Indian reservation or in the District of Columbia. The states don't have jurisdiction inside of federal reservations, and DC isn't part of any state.

It might be prosecuted under the UCMJ, or it might be prosecuted under federal criminal law, but it couldn't be prosecuted by a state because technically it didn't happen in any state.
posted by Chocolate Pickle at 2:23 PM on September 6, 2010


As a note, my question was not US-specific. And thanks for your answers so far.

Now, I'm trying to understand the reasoning behind having two "laws". Why are there different laws for the military and civilians?
posted by edmz at 2:26 PM on September 6, 2010 [1 favorite]


In much of Europe and in Japan and Korea, there are treaties that cover cases where US soldiers commit crimes outside of their military bases. The treaties say that the US has jurisdiction but can optionally decide to yield them up for local civil trials.

One example of that is the rare (but of course not rare enough) cases where Marines in Okinawa rape local women. Usually the accused Marine is given over to the Japanese for trial.

A different example was when an American A-6 in Italy was flying too low in the mountains and severed the cable on an Italian ski lift, causing a cable car to fall a couple of hundred feet, killing 20 people inside. Those pilots were tried in American military courts. Italy wanted them, but the US refused to yield them up.

Likewise, there was a case where an American military vehicle struck and killed two Korean girls. The American soldiers were tried under the UCMJ.
posted by Chocolate Pickle at 2:37 PM on September 6, 2010


Why are there different laws for the military and civilians?

It's long been understood that soldiers must be subject to degrees of discipline and control that we (in the liberal west) would consider to be unacceptable for free citizens. Fighting and winning a war requires a disciplined army, and ships are even worse.

In the US, the founders believed this and the Constitution (and the Bill of Rights) contain several mentions of ways in which certain provisions don't apply to active-duty soldiers. For example, the Fifth Amendment requires indictment by a Grand Jury for all criminal cases, but specifically exempts soldiers.

Civil legal processes are too slow, too resource intensive, and too inefficient to reasonably be used on soldiers at the front during a shooting war.
posted by Chocolate Pickle at 2:44 PM on September 6, 2010


In case it matters, I'm trying to make sense of this particular event. The soldiers were not even named. This appears to be normal and legal procedure.
posted by edmz at 3:06 PM on September 6, 2010


I believe the genesis of military law versus civil law comes from the fact that most on-duty military were far from home. There had to be a way for justice to be meted out while "on the road". You wouldn't want a soldier cooling his heels in chains, not contributing, if he was innocent. And you wouldn't want someone who was guilty eating up all your food if he was just going to get shot when he got home anyway. Plus, if you are in some foreign land, whose law do you use? Theirs? Your own? How would that work- would you have to call for a convoy of judges and appellate judges to come around? Easier to tell the military to come up with a way to police their own.

Why are there different laws for the military and civilians?

Further, we don't want to give soldiers the burden (or opportunity) of having to remember a bunch of different laws in different jurisdictions. It gives soldiers a uniform code of law that they have to follow, no matter what civil jurisdiction they are in. Plus, military life is just different enough from private citizenry that there needs to be a separate set of rules- mostly having to do with chain of command kinds of things.

But at least in the US, while they are different laws, the result is mostly the same.

It also lends an air of credibility to our soldiers and presence overseas. It says that if someone commits a crime, but we don't want to or can't turn that person over to the local authorities, they will still be punished.

Just think of it like the HR policy of their workplace.

(And it technically isn't a separate set of laws, just a subset of federal law that only applies to the military. In the US anyway.)
posted by gjc at 3:16 PM on September 6, 2010


The event to which you linked happened in Mexico. Mexico right now is about half way to becoming a "failed state", and in countries like that, the "army" becomes just another armed gang engaging in turf wars, except that they have fancier uniforms.
posted by Chocolate Pickle at 10:22 PM on September 6, 2010


Now, I'm trying to understand the reasoning behind having two "laws". Why are there different laws for the military and civilians?

Well, for one thing most times that a civilian kills another civilian it's murder, the exceptions are rare. Active duty soldiers in war time kill other soldiers all the time on purpose and civilians die regularly (presumably accidentally).
posted by atrazine at 11:22 PM on September 6, 2010


Here in Kenya, the laws are very similar to what would happen in the UK, except that there is effectively no CPS under which this would be seen - it would be a matter of cooperation between civil and military police, but most likely tried in a civil court.

Of course, there would be the complicating factors of who the suspect in question is connected to (most likely within the military) - through family or other contacts, and who is able to bribe whom the most effectively.
posted by allkindsoftime at 1:04 AM on September 7, 2010


Australia is in a period of transition with regard to military justice.

As I understand it, prior to 2007, serious crimes committed by defence personnel were tried by Courts Martial and Defence Force Magistrates, as authorised by the Defence Force Discipline Act.
A thorough accounting of the system, and its weaknesses can be found in the 2004-2007 Senate inquiry:
Where jurisdictional overlap occurs during peacetime in Australia between the military justice system and the civilian criminal law, jurisdiction under the DFDA can only be exercised where proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing Service discipline. Otherwise, criminal offences or illegal conduct is referred to civilian authorities for investigation and prosecution. Under section 63 of the DFDA, the consent of the Commonwealth Director of Public Prosecutions is required to deal with serious offences (such as murder, manslaughter and certain sexual offences) under military jurisdiction. Where a member is being prosecuted under the civilian criminal justice system, they cannot be subjected to the DFDA for the same or a similar offence.
Subsequent to the inquiry, the Australian Military Court was created, and it operated from 2007 to 2010. It was designed to be outside the military chain of command, but responsive to military needs, including being able to be deployed overseas. Unfortunately, it was both too much and too little like a real court. While fulfilling the function of a court of record, it wasn't properly set up per Chapter 3, and was declared unconstitutional.
Things are now back to the previous system, while a new Military Court of Australia is being set up.
posted by zamboni at 5:18 PM on September 8, 2010


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