On the anniversary of the September 11th attacks, join Profs. Claire Finkelstein and Eugene Fidell to reflect on the legacy of the attacks for both law and politics.
Wednesday, Sept. 11, 12:30 p.m. (East Coast time)
Zoom: https://villanova.zoom.us/j/91647384492
In-person: Villanova Law School, Room 302
See you there!
Global Military Justice Reform contributor Brigadier General (ret) Jan Peter Spijk has kindly provided this post:
Travelling Exhibition Reichskriegsgericht (Reich Court-Martial) in World War II
On August 29, an important exhibition opened in Halle, Germany, to inform the public about the history of the Reichskriegsgericht - the Reich Court-Martial – which formed the pinnacle of National Socialist Military Justice in the years 1936 – 1945.
The history of this military court dates back to 1900, when it was established by the German Emperor after the Prussian-led unification of Germany. It had its seat in a prestigious building in Charlottenburg, Berlin. After World War I, the Weimar Republic in 1920 abolished the separate jurisdiction for military personnel.
However, after the Nazi seizure of power in 1933, courts-martial were reinstated by law, effective 1 January 1934. The Reichskriegsgericht (RKG) was re-established as the Military Supreme Court on 1 October 1936.2 According to the Wartime Criminal Code of Procedure (Kriegsstrafverfahrensordnung, KStVO) enacted by the German Führer Adolf Hitler and Field Marshal Wilhelm Keitel on 17 August 1938, the RKG had jurisdictional competence over acts of high treason, treason and aiding the enemy. Until 1940, the RKG was also responsible for handling ‘severe cases’ of ‘undermining military force’. Under this regime 215 conscientious objectors were sentenced to death, among whom many Jehovah’s witnesses and Seventh-Day Adventists. The court also had sole responsibility for all legal proceedings against highest-ranking Wehrmacht officers.
The RKG consisted of initially three, from November 1941 on four, ‘Senaten’ (Chambers), each consisting of four military lawyers/justices and three (other) officers. Attached to the RKG was the Reichskriegsanwaltschaft (the Reich military prosecution service), consisting of 20 military lawyers. The President of the RKG was in the position to either confirm or nullify the judgments, unless Adolf Hitler, in his capacity as ‘Supreme Justice of the Wehrmacht’, decided to do so.
In full conformity with what became common practice in the regular German judiciaries, the military courts increasingly saw a so-called ‘extended application of the law’, which meant that also ‘Rassevergehen’ (‘racial crimes’) and ‘politically motivated crimes’ could lead to a conviction.
Apart from its role as the Military Supreme Court for military personnel, the RKG also tried several thousand members of resistance groups from the European countries invaded and occupied by Germany during the Second World War. Thus, it was an essential instrument for enforcing the Nazi-policy of occupation and repression.
In the timeframe from August 1939 until February 7, 1945, the RKG decided on 1.189 death penalties, of which 1.049 were executed. Many thousands were committed to prisons, Wehrmacht penal units and concentration camps. The 1941 proceedings against those involved in the German resistance network labelled the Rote Kapelle (‘Red Orchestra’) are particularly well known.
In 1998, 2002 and 2009 the German Parliament adopted laws which nullified ‘national-socialistic criminal convictions, contrary to elementary principles of justice’, including many convictions of the RKG.
The exhibition in Halle, Germany, will last until October. Afterwards, stops are planned in Warsaw, Berlin and Paris, among others.
Military Justice in Germany after World War II
The military courts-martial were abolished on August 20, 1946, by decision of the Allied Control Council. Although the Basic Law of the Federal Republic of Germany provides for the possibility of establishing military criminal courts exercising criminal jurisdiction over members of the armed forces, it has not made such federal courts mandatory. The Federal Republic of Germany has not yet made use of the possibility to establish such a court.
Bundeswehr soldiers will be tried before ordinary – civilian - courts for all offences, including military offences. In some instances the Military Penal Code provides for ‘special jurisdiction’. This is applicable in case of:
- criminal offences committed during a foreign deployment. For these cases the place of jurisdiction is the civilian court in the city of Kempten (Bavaria).
- military disciplinary proceedings pursuant to the Military Disciplinary Code. Serious disciplinary offences are tried by the Bundeswehr disciplinary and complaints courts in Münster and Munich. The Bundeswehr disciplinary and complaints courts are composed of a civilian judge and two military personnel as honorary judges. Appeals are decided at the (civilian) Federal Administrative Court.
Judicial disciplinary proceedings against Bundeswehr members are initiated by so-called ‘instituting authorities’. These are military commanders at division level or higher. These military commanders are supported by an Armed Forces’ Disciplinary Attorney (Wehrdisziplinaranwalt), assigned to him. This disciplinary attorney is a civilian lawyer qualified to hold judicial office and whose main function is that of a legal advisor to the respective military commander.
In practice, the legal advisors assigned to the military HQ’s in the Bundeswehr do not only advise on matters of disciplinary and criminal law, but also on all other relevant legal issues, including the application of International Humanitarian Law (Law of Armed Conflict) during military operations. These civilian legal advisors hold military (officer) rank and will wear uniform when deployed or during exercises.
Under the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004, persons subject to service law can be tried for two categories of offences: Military offences and Civil offences as defined under the Act. Whereas only the Court-martial can try for both Military and Civil offences, the Civil courts can try a person subject to service law for Civil offences only. The failure of the military to arraign a person subject to service law for a Civil offence will not prevent the Attorney-General of a State or the Attorney-General of the Federation from arraigning the person before the Civil court. Does a person subject to service law have a right of election not to be tried in a civil court for a civil offence? To what extent is the right of election to be tried for an offence a condition precedent to the jurisdiction of the Civil court to try persons subject to service law? Must allegations of commission of an offence be reported to the Commanding Officer before a Civil court can assume jurisdiction in a case against a military offender? This article x-rayed the jurisdiction of Court-martial and Civil courts to try persons subject to service law and the recent case of Brig. Gen. Jafaru Mohammed v EFCC & Ano. which held that a serving military officer cannot be invited, interviewed, interrogated, arrested, tried under general criminal laws of Nigeria, unless he elects the forum for trial. The authors posit that this decision was arrived at per incuriam as it fails to recognise the concurrent jurisdiction of the Court-Martial and the Civil courts to try persons subject to service law for civil offences as provided in the Act.
They conclude:
It is beyond argument that a person subject to service law may be tried by a Court Martial and a Civil Court for commission of a civil offence. A civil court lacks jurisdiction to try a person subject to service law for a Military offence created by the Armed Forces Act. Where the person subject to service law is tried first by a civil court for a civil offence, and is convicted or acquitted, he cannot again be tried by a Court Martial pursuant to section 36 (9) of the Constitution. The condition that a commanding officer under section 117 of the AFA must afford an opportunity for election to a person subject to service law to elect whether to be tried summarily by the commanding officer or court- martial does not extend to trial by a civil court. There is no such duty upon a judge. The condition precedent for the trial and or investigation for a judicial officer as established in Nganjiwa v Federal Republic of Nigeria does not apply to the investigation and trial of a person subject to service law. The EFCC by virtue of sections 6 and 7 of the EFCC Act does not require the consent, permission or does not need to notify a commanding officer under which a person subject to service law is serving before it commences the investigation of such a person. It was therefore wrong for the Justices of the Court of Appeal to have arrived at the conclusion that section 123 of the AFA must be complied with by the EFCC. Consequently, the researchers recommend that the court should seize any opportunity in future where issues such as discussed herein arise to restate the correct position of the law that it is not a condition precedent that before a person subject to service law can be tried by the civil court that such a person must be put to his election and that section 123 of the AFA does not apply to law enforcement officers or prosecutorial agencies.
Now ex-Major General James Roddis was part of an overseas delegation and had been drinking for several hours when he started touching the hair of the woman before kissing her on the lips.
Roddis, 53, was required to resign from the Army following the subsequent misconduct investigation and admitted disgraceful conduct of an indecent kind at a hearing in July.
Suspending the prison sentence for two years, the military board at a court martial in Bulford, Wiltshire, also ordered him to 30 days of rehabilitation, 150 hours unpaid work and to pay his victim £2,500 compensation.
Perhaps our British colleagues can advise on whether HRH will seek to "recall" the DSO and MBE?
In the U.S. a court-martial cannot impose a sentence of "rehabilitation," although some might argue that a sentence to "Extra Duty" might be similar or hours of "unpaid work." A U.S. court-martial impose restitution and cannot direct a suspended sentence.
An accused cannot be "required to resign." He can offer a resignation in lieu of court-martial which results in a discharge Under Other Than Honorable Conditions--but the charges are dismissed. Or the accused can take his chances on not being "Dismissed," a punitive discharge, which for officers is generally considered the equivalent of an enlisted person's Dishonorable Discharge.
You might also read or read Rachel VanLandingham's piece about general officers facing court-martial for sex-related offenses. Over the last few years, the USAF and Army have prosecuted general officers at court-martial for sex-related offenses.
