Military justice

“ If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society ”

“ Military crimes are those committed on military installations or those that relate to the performance of military duty, to military property or personnel, to military honor, or to certain aspects of national security. Servicemen of all ranks, military reserves during their training or whenever they are under military control, personnel of the police or any of the other militarized security units, or any other persons involved in military crimes are liable to military justice. ”

“ If a paroled prisoner is charged with a breach of his parole, he may be punished, if88 guilty, but not without a trial. He should be tried by a military tribunal, constituted and proceeding as the laws and usages of war prescribe.
The law and usage of war contemplate that soldiers have a high sense of personal honor. The true soldier is proud to feel and know that his enemy possesses personal honor, and will conform and be obedient to the laws of war. In a spirit of justice, and with a wise appreciation of such feelings, the laws of war protect the honor and character of an open enemy. ”

“ It was a military duty, to be performed by the President, as commander in chief, and intrusted as such with the direction of the military force by which the occupation was held.' Thus it has been determined that the power to establish by military authority courts for the administration of civil as well as criminal justice in portions of the insurgent States occupied by the National forces, is precisely the same as that which exists when foreign territory has been conquered and is occupied by the conquerors. What that power is has several times been considered. ”

“ It shall be lawful for any Justice of the Peace, or for any Constable or Peace Officer, or for any person acting in their aid or assistance, to disperse any such unlawful meeting or assembly as aforesaid, and to arrest and detain any person present at or aiding, assisting or abetting any such assembly or meeting as aforesaid ”

“ We fully agree with the presiding justice of the Circuit Court in the doctrine that the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. ”

“ Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. ”

“ Officers and soldiers in the military service are not amenable, in time of war, to process from the civil tribunals for any act done in the performance of their duties; but if the injurious act done to person or property was wholly outside of the duty of the actor, and was wilfully and wantonly inflicted, for the mere purpose of oppression or private gain, the party by whom or by whose orders it was committed may be answerable in the ordinary courts of justice, except when the civil tribunals are silenced by the exigencies of military rule or martial law. ”

“ Your judgment must be inscribed as a decisive act in the history of international law in order to prepare the establishment of a true international society excluding recourse to war and enlisting force permanently in the service of the justice of nations ”

“ It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the Courts and Ministers of Justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. The first kind can evidently apply only to men: ”

“ Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. ”

“ We most earnestly hope and believe that the chance of our having any hostile military complication with any foreign power is very small. But that there will come a strain, a jar, here and there, from commercial and agricultural—that is, from industrial—competition, is almost inevitable. Here again{239} we must remember that our first duty is to our own people, and yet that we can best get justice by doing justice. ”

“ But their continued enforcement is not for the protection or control of the army, or its officers or soldiers. These remain subject to the laws of war, and are responsible for their conduct only to their own government, and the tribunals by which those laws are administered. If guilty of wanton cruelty to persons, or of unnecessary spoliation of property, or of other acts not authorized by the laws of war, they may be tried and punished by the military tribunals. ”

“ Courts-martial are deeply rooted in history. War is a grim business, requiring sacrifice of ease, opportunity, freedom from restraint, and liberty of action. Experience has demonstrated that the law of the military must be capable of prompt punishment to maintain discipline. The power to regulate the armed forces must have been granted to Congress so that it would have the authority over its armed forces that other nations have long exercised, subject only to limitations of the Constitution. ”

“ Whatever rules have been adopted and practiced by the civilized nations of the world in war to soften its hardships and severity should be adopted and practiced by us in this war. That the laws of war authorize commanders to create and establish military commissions, courts or tribunals for the trial of offenders against the laws of war, whether they be open or secret participants in the hostilities, cannot be denied. ”

“ We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. ”

“ Martial law and military tribunals are as essential to the successful prosecution of war as are men and arms and munitions. The Constitution of the United States has vested the power to declare war and raise armies and navies exclusively in the Congress, and the power to prosecute the war and command the army and navy exclusively in the President of the United States. ”

“ We have no doubt of the power of Congress to enlist the man-power of the nation for prosecution of the war and to subject to military jurisdiction those who are unwilling, as well as those who are eager, to come to the defense of their nation in its hour of peril. ”

“ We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death. ”

“ The Constitution does not permit this government to prosecute a war as an uncivilized and barbarous people. As war is required by the frame-work of our government to be prosecuted according to the known usages of war among the civilized nations of the earth, it is important to understand what are the obligations, duties, and responsibilities imposed by war upon the military. ”

“ The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law, and instead be tried by court-martial under the guise of regulating the armed forces, would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded. ”

“ In both instances, from the very nature of war, the tribunals of the enemy must be without jurisdiction to sit in judgment upon the military conduct of the officers and soldiers of the invading army. It is difficult to reason upon a proposition so manifest ”

“ Rather, it chooses to ignore strong and legitimate governmental interests which support the exercise of court-martial jurisdiction even over 'nonmilitary' crimes.
The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. ”

“ In that event, troops would certainly be out of place, and their use wholly illegal. If they are sent to aid the Courts and Marshals there must be Courts and Marshals to be aided. Without the exercise of these functions, which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government has at its command. Under such circumstances, to send a military force into any State, with orders to act against the people, would be simply making War upon them. ”

“ We give great deference to the judgment of the Congress and of the military authorities as to what is necessary in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. ”

“ On no subject connected with the operations of war has International Law come as yet to lamer conclusions than concerning Military Reprisals, or the revenge that may be fairly exacted by one belligerent from the other for violation of the canons of honourable warfare. ”

“ The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes unobstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. ”

“ The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment. ”

“ DÖNITZ: No, I had neither the opportunity nor indeed the authority to do that. I should like to ask what soldier of what nation, who receives any military task whatsoever, has the right to approach his general staff and ask for examination or justification as to whether an aggressive war can evolve from this task. That would mean that the soldiers...
THE PRESIDENT: Dr. Kranzbühler, the Tribunal has itself to decide as a matter of law whether the war was an aggressive war. It does not want to hear from this witness, who is a professional sailor, what his view is on the question of law. ”