Earlier this month the recruit,
who was caught napping during physical training, had his shirt removed and
icepacks were placed under his armpits and on his crotch. Nine officers, from
the sergeant who imposed the punishment up to the battalion commander, are
currently under investigation by the military police.
In response, politicians and
researchers have called the Ministry of Defense to create a unified code of
service discipline, notably to prevent such incidents from happening. It is
believed that by providing codified guidelines, it would reduce the risk of
having an officer or a non-commissioned officer imposing a disproportionate,
degrading or unusual punishment.
Amongst the experts quoted by the
Taipei Times is National Chengchi University international affairs professor Chen
Wen-chia, who notably said that:
“Complete trust and flawless
teamwork must exist for a military organization to function. […] Knowing how to
strike a balance between discipline and trust is the test of good leadership.”
We could add to Prof. Wen-chia’s
wise words that this balance is particularly essential to maintain in the armed
forces of a democratic state, where the general public’s trust in military
institutions is itself a strategic asset. This balance is all the more
difficult to maintain when the state faces the constant risk of being drawn
into a major armed conflict threatening its existence. As conscripts have not
voluntarily joined the armed forces, would eventually go back to civilian life,
and would eventually – negatively or positively - influence the general public’s
support towards military institutions, this balance is even more challenging to
maintain.
Another researcher, retired army
major general Richard Hu, told the Taipei Times that “creating a
separate military justice system is not necessary for maintaining discipline”.
In support of his argument, he referred to the absence of military courts in
Japan’s Self-Defense Forces and the fact that in France, military courts are convened
only in exceptional circumstances.
MGen (ret’d) Hu indirectly evokes
something often misunderstood by most observers: military justice does not
equate to military discipline. The former is one of the tools to restore the latter, a broader concept. Maintaining
discipline is the very essence of military organization, notably to ensure
efficiency and morale, but it is also an obligation for commanders to prevent
and, where necessary, punish violations of international humanitarian law.[1]
By the way, discipline is
maintained in many ways. Yes, by imposing (or threatening) sanctions that
dissuade offenders from reoffending and discourage others from doing the same.
But what a military organization really wants is self-discipline: the kind that
comes naturally from within, after individual and collective training,
following the example set by leaders, and reacting to collective positive
reinforcement from peers. So even when military authority or superiors are
absent, the individual soldier would nevertheless, by a mixture of habit and
reasoned will, intrinsically act in a proper military and professional way
because it is the ‘right thing to do’.
If MGen (ret’d) Hu’s quote means
that there is no obligation to have military courts to maintain discipline, he is right (although many would
argue that simply transferring criminal jurisdiction from military to civilian
courts is not a ‘silver bullet’ to avoid impunity as it seems to be). Yet, as
commanders are required to exercise and instill “rigorous supervision of the
armed forces and strict internal discipline […] required to ensure that
military personnel obey orders when in danger and do not abuse their power”[2] a system is needed. It does not have
to be a court or a judicial system. Nevertheless this system, whether administrative, disciplinary or
penal summary proceedings, must be fair, meeting minimum standards. Among those
are the requirements of legality, predictability and proportionality of
punishments. Consider the following from the 2019 Yale Draft Principles for Military
Summary Proceedings:
Principle 4
The State shall define by law
which offences are subject to summary proceedings, the applicable penalties,
and periods of limitation.
Principle 5
A commander may not impose any
punishment that is cruel, unusual, inhuman, degrading, or disproportionate.
Periods of detention should be of relatively limited duration, reflecting the
fact that summary proceedings are designed for the adjudication of minor offences.
In summary, to prevent sanctions
and punishments from being left entirely to the ‘whims and fancies’ of frontline
officers, there’s a need for a military justice system. Not necessarily a court system, but still a fair one. Otherwise, in seeking to
strike the right “balance between discipline and trust” as Prof. Wen-chia puts
it, the latter will be harmed and ultimately, the former would be more
difficult to maintain through soldiers’ inherent positive motivation.
The opinions expressed are those of the author alone.
[1] Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol I), 8 June 1977, art. 87.
[2] Céline
RENAULT, “The
impact of military disciplinary sanctions on compliance with international
humanitarian law”, International
Review of the Red Cross, vol. 90, no. 870, June 2008, 320.
