New Article: Enhancing Fairness and Compassion in Military Disciplinary Proceedings

In an article recently published by the Cardozo International & Comparative Law Review, Professor Rinat Kitai-Sangero, the Head of the Multidisciplinary Studies of the Zefat Academic College School of Law assesses the summary disciplinary proceedings of the Israel Defence Forces (IDF).[1] After comparing it with the US Summary Court-Martial (SCM) system and analyzing the reasoning behind inadequate procedural safeguards, the author recommends providing soldiers with legal representation when they are exposed to imprisonment. For the professor, at stake here is the soldiers’ emotional distress facing a potential custodial sentence and the hierarchical gap between them and the chain of command. This is not trivial, even more so considering the roughly 170,000 disciplinary proceedings held each year, resulting in the imprisonment of 16,000 soldiers annually (p. 385).

As a model to emulate, the author uses the integrative tribunal established in Israel in 2018 to deal with the cases of desertion. According to Professor Kitai-Sangero, the tribunal has a particular focus on identifying the causes of desertion to better rehabilitate and reintegrate individuals as functional service members rather than simply resorting to imprisonment. For the author, that model court should be extended to less serious offences, even to other national armed forces.

The article is divided in 6 parts. Part I (pp. 379-385) introduces the topic by using examples both in literature and history to summarize the traditional perceptions, tensions and main characteristics of the US military justice system, for which the legal literature is vast. To summarize those views, military disciplinary proceedings, a separate system dealing with unique type of offences, are an expeditious tool to assist commanders (and subject to their whims) in maintaining good order and discipline rather than upholding justice, due process, and adhering to the rule of law.

In Part II (pp. 385-396) the author describes the IDF summary disciplinary proceedings comparing them with the SCM in the US system. The article examines its procedural safeguards, focusing on the lack of rights to be legally represented and to be impartially heard, from an individual soldier’s standpoint. In doing so, the author first explains the evolution of the US system and the emergence, in 1950, of the Uniform Code of Military Justice (UCMJ) to address criticism about the lack of fairness during WWII. The different types of US disciplinary proceedings are then described, with a particular emphasis on SCMs. The central role played by military commanders in military justice is discussed, with the frailties in terms of professional skills that go along with it. The Israeli disciplinary proceedings are comparable but with even lower safeguards than their US counterpart, according to the author who described the weaknesses. Then, the perspective of the Supreme Court of Israel (SCI) on procedural fairness in military disciplinary trials is presented. More than four decades ago, the SCI viewed that rights to legal representation and to a fair and independent judge are not guaranteed in that system. Yet, in a more recent case, the ISC stressed that efficiency should not compromise justice.[2]

Part III (pp. 396-405) exposes the arguments justifying why, in military summary proceedings, the need for speed has precedence over fairness. The foundation is first stated: military justice’s primary objective is to maintain discipline. In doing so, it should be able to deal with breaches swiftly, in order to deter. Military justice also serves to enhance combat effectiveness in ensuring troops obedience to orders, in particular against their natural inclination to self-preservation in face of risk-life situations. Military justice also fosters military cohesion and trust amongst soldiers who live and work closely together. The author refers to a US Supreme Court decision were it was held, notably, that “the military operates as a distinct society separate from the civilian community.”[3] Military justice also serves as a way for commanders to exercise their authority over subordinates. They are held accountable for their subordinates’ actions. So it is legitimate to give commanders disciplinary jurisdiction over them. Commanders know their subordinates and can better assess their behavior in comparison with neutral judges. Such interaction may play in favor of the soldier, and promotes inclusivity as part of the unit. Indeed, an objective of military justice is to rehabilitate the individual as an effective soldier. In addition, military disciplinary proceedings deal with offences that have no civilian equivalent, their punishment powers are limited, and their results cannot create a criminal record. Therefore, the need for procedural safeguards is lower. Having the right to legal representation in that context would notably add complexity and delays. Not to mention the need for those proceedings to be portable anywhere the military forces are in the world, making legal representation unworkable in operational setting.

Part IV (pp. 406-416) exposes the counterarguments as to why procedural safeguards remain the priority during military disciplinary proceedings. The author wonders if giving precedence to military efficiency and discipline justify limiting a soldier's rights. In comparison with civilians, soldiers have more restrictions to their freedoms and their privacy, even more so if they are conscripts. Professor Kitai-Sangero is of the view that the requirement for soldiers to be ready to the ultimate sacrifice reduces them to tools for larger organizational purposes, hence removing their intrinsic value as human beings. The author purports that when soldiers serve, the state has a duty to protect them from wrongful convictions and unfair punishments, lest it forfeit its right to demand their service.

The concept of a separate military community cannot justify in itself a completely different approach. For example, police officers share many characteristics with military life. Reservists are part of the civilian society. For restricting soldiers’ rights, a logical and justifiable reason is needed.[4]

Another argument for protecting soldiers’ rights is that commanders’ influence could become the rule under which the process is governed, while commanders are themselves subject to biases and external influence, and play both roles as judge and prosecutor. That’s why judicial impartiality is key to due process: it ensures objectivity, without partiality, favour or affection.

The right to legal representation protects the integrity of the process and corrects the gap between the individual facing an organization. Soldiers do not have the skills to defend themselves in dealing with legal issues, nor do they have the skills to manage their stress in facing disciplinary proceedings. They need a military defence counsel at their side, the author writes. For those who argue that providing legal representation in any setting would be impractical, Professor Kitai-Sangero suggests the imprisonment should be restricted to emergency situations, commanders having only the power to impose short-term detention until trial. Having said that, military necessity in times of crisis cannot inherently justifies the sacrifice of one individual’s rights.

Besides, disciplinary proceedings are for minor offences. Yet individuals are exposed to imprisonment. This is a serious punishment that should prompt legal representation.[5] Even a short term in prison can have detrimental effects on someone’s mental health, in particular when it is the result of a wrongful conviction. Furthermore, it discourages soldiers’ to remain in the service. That’s why providing support for soldiers to properly assert their rights is justified. Professors Kitai-Sangero advocates for a better balance between the needs of the military and the soldiers’ rights, in compliance with the constitution. Any restriction on individual’s rights must be assessed through a proportionality test.

Ultimately, discipline and justice are not opposing concepts; it’s not a zero sum game. If the focus is on justice, discipline would necessarily flows from it, as it would foster confidence in military justice amongst the troops. Conversely, an organization perceived as unjust discourages people from joining or staying in it.

Part V (pp. 416-421) explores Israel's integrative military tribunal, focusing on desertion cases. Using a holistic approach, the tribunal aims to reintegrate deserters without imprisonment. In that process, the individual soldier’s suitability for reintegration is assessed by the military police. If considered suitable, the individual joins the integrative process, under judicial supervision, and return to unit. A commanding officer is tasked to accompany the soldier in the process. If needed, civilian welfare officials can be involved. By default, the process will take a year, during which follow-up hearings are conducted to monitor the progress and make adjustments, if required. Upon successful completion, soldiers are convicted of a lesser offence than desertion, which offence does not create a criminal record.

The author suggests extending this approach, focusing on rehabilitation and re-integration, to less serious offenses that may lead to imprisonment. According to the author, it promotes equitable practices in military justice, which can “foster a culture of growth and rehabilitation”. Professor Kitai-Sangero suggests this model could be applied to other national military disciplinary proceedings.

Lastly part VI (pp. 421-423) concludes that the officers’ judicial authority is excessive. Commanders’ power to impose imprisonment without minimal safeguards is not consistent with the Israeli constitution. In that sense, accused soldiers are no different from those facing ordinary criminal courts. For non-legally trained commanders, imposing imprisonment for specific military offences should not be possible unless the requirements for due process rights are fulfilled, the author argues. The right to be represented by a defence counsel should be given, unless there are exceptional and urgent circumstances. The model of the integrative tribunal, presided over by a military professional judge, which prioritizes reintegrating soldiers, strikes a more balanced approach between military disciplinary needs and fairness. It is a recognition that human capital is the armed forces’ most important resource. As it shows that there is no contradiction between justice, compassion, and discipline, it should serve as a model for other national armed forces.

Comment

Throughout Professor Kitai-Sangero’s article, one can feel a wholehearted desire to make things better. The concerns the author has for young soldiers’ well-being and mental health is a compelling argument. The author sees that no major reform is expected soon. There’s no impetus for affirming service persons’ rights. So as legal scholars usually do, the author sees the need to reassess and draws attention to a system that many are indifferent to mainly because they are unaware of its importance.

Like other authors[6], the article draws on US SCMs to show the weaknesses of the IDF disciplinary proceedings in in protecting individual rights. The US SCMs' evolution is key to understand the tensions in balancing fairness, individual rights, and discipline in military summary proceedings for minor offenses. Reforms in other military justice systems, for example in UK[7], New Zealand[8] and Canada[9], can enhance the comparative approach. A group of experts of the Commonwealth suggest the tensions could be resolved by providing the right to elect trial in a military court which provides access to the internationally recognised rights, or an unfettered appellate procedure to such a court.[10]

Finally, the author is right on point when she writes:

Moreover, the recognition that soldiers are fulfilling a mission for their country through their military service should give rise to a duty to evaluate soldiers in accordance with legal standards and afford them fair trial protections. As the state requires soldiers to make sacrifices, it also assumes the responsibility of safeguarding them against unjust convictions and disproportionate penalties. Otherwise, the state might lose its moral authority to require young people to serve in the army.[11]

Indeed we have a collective moral responsibility to strive for the best possible justice system for those who risk their lives defending our nations, even going beyond legal and constitutional requirements.[12] Failing to treat soldiers with professionalism and humanity may compromise their ability to uphold these same values in their interactions with others, particularly during military operations, thereby increasing the risk of unprofessional conduct.

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[1] Rinat Kitai-Sangero, "Enhancing Fairness and Compassion in Military Disciplinary Proceedings" (2024) 7:2 Cardozo Int'l & Comp L Rev 37 (HL).

[2] HCJ 266/05 Pilant v. Deputy Military Attorney, 59(4) PD 707, 712-13 (2005) (Israel) [cited by the author].

[3] Goldman v. Weinberger, 475 U.S. 503, 506-507 (1986).

[4] Id., 517 (Brennan, J., dissenting).

[5] Middendorf v. Henry, 425 U.S. 25, 59-60 (1976).

[6] Haslida Isamail, Mohamad Rizal bin Abd Rahman, & Muhamad Sayuti Hassan, « Right to Legal Representation During Summary Proceedings Under the Military Justice System », (2024) 32 : 1 IIUMLJ 365-396.

[7] United Kingdom, Military Court Service, The Court Martial and The Summary Appeal Court Guide, vol. 1 “Guide to Procedure, v 9, (2023), <https://www.judiciary.uk/wp-content/uploads/2023/02/The-Court-Martial-and-Summary-Appeal-Court-Guidance--Volume-1--Guide-to-Procedure.pdf>, p. 9, par. 7.1.

[8] New Zealand, Defence Forces (Te Ope Katua O Aotearoa), Annual Report on the Military Justice System 2021-2022, Defence Legal Services, 2022, p. 5, <https://www.nzdf.mil.nz/assets/Uploads/DocumentLibrary/Discipline-Report_2021-2022.pdf>.

[9] Lyne Casavant, Julia Nicol & Stéphanie Le Saux-Farmer, Legislative Summary of Bill C-77: An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, Publication No 42-1-C77‑E, (Ottawa: Library of Parliament, 2018 rev 2020), sections 2.10 to 2.12, <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C77E>.

[10] The Commonwealth, Commonwealth Military Justice Principles – The Stellenbosch Draft, University of Stellenbosch, South Africa, 2023, Principle n^o 10,

[11] Rinat Kitai-Sangero, supra, note 1, at 407.

[12] The Honourable Morris J. Fish, C.C., Q.C., Report of the Third Independent Review Authority to the Minister of National Defence, Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, 30 April 2021, at p. iii. <https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf>.