by Peter Judson Richards. New York: New York University Press, 2007. 272pp. Cloth. $45.00. ISBN: 9780814775912.Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: joynerc [at] georgetown.edu.
pp.62-66
In 1970, Robert Sherrill published his volume, MILITARY JUSTICE IS TO JUSTICE AS MILITARY MUSIC IS TO MUSIC (1970). As one might surmise from its title, this book is a rather biting indictment of the military justice system and its particular deviances from the system of law practiced in the civil judicial court system. In direct contrast, Peter Richards’ EXTRAORDINARY JUSTICE provides through historical analysis a strong defense of the resort to martial law and military tribunals, especially in times of civil emergency, to restore law and order in society. This volume provides a select historical survey of wars and internal conflicts in which military tribunals and martial law were used by governments over the past 150 years.
The fundamental assumption underlying Richards’ study is that when military necessity becomes critical, speedy means of adjudication can become essential to ensure that that the judicial process is not compromised by the circumstances of international conflict. The main premise of EXTRAORDINARY JUSTICE turns on the underlying assumption that military tribunals permit great opportunity for secrecy that can protect sensitive information, which can be compromised in the process of open discovery of civilian trials. The argument is also made that resort to military tribunals ensures greater courtroom security and protection of witnesses, jurors and judges.
The study examines wars and domestic insurrections in three states – the United States, Great Britain and France, as well as the First and Second World Wars – and in which circumstances tribunals were used. The author seeks to set aside rigid legal abstractions that sometimes earmark international law and clarify the pragmatic, realistic consequences that can be obtained through the use of military tribunals. He does this through the prism of historical analysis by comparing lessons learned from resort to military trials by American responses to domestic disorder and conflicts through the Civil War, the 19th century to the experience of British military tribunals in the Boer War, the French Conseils de Guerre during World War I, and the trials of various military commissions during World War II.
Richards argues that the courts martial instituted by Andrew Jackson in the aftermath of the War of 1812 and by General Winfield Scott during the Mexican War of 1846-1846 laid the practical foundation for resort to military tribunals in the United States. Even so, it was Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War that became the linchpin for [*63] justifying the adjudication of wartime offenses by military commissions. The motivation for Lincoln’s radical act of suspension was clear – to suppress the rebellion and punish those Americans who were aiding and abetting it. Military commissions became a prevalent means in 1861 for the federal authorities to enforce martial law imposed in the border state of Missouri to suppress violent activities perpetrated by marauding guerilla forces. Military commissions were also employed to prosecute 1500 accused Indian offenders in the 1862 Dakota trials, in the much publicized Milligan trial in 1864 and in the 1865 trial of eight alleged conspirators with John Wilkes Booth in the assassination of President Lincoln, and in the trial of Henry Wirz, commandant of Andersonville prison in Georgia. However, such tribunals were most prevalent in Southern states during the period of Reconstruction after the Civil War. Resort to military commissions during the late 1860s and 1870s were used mainly as instruments to ensure that crimes would be punished and injustices minimized. In practical terms, as Richards makes clear, they also served to regulate volatile racial tensions between whites and blacks in areas in the South under the army’s jurisdiction.
The British experience with military tribunals was different from that in the United States, especially in that they were most actively employed as emergency judicial responses to wars that occurred in remote colonial possessions. This was especially true in South Africa. It was the Boer War that instigated the most vigorous use by Great Britain of military tribunals, which considered a wide range of civilian and military offenses, including murder, rape, spying, treason and treachery. In the course of these tribunal proceedings, fighters in the Boer forces occasionally experienced injustices, “administrative deficiencies, and arbitrariness in the process” (p. 55). During the command of the British administrator, Horatio Kitchener, some 700 Boers were initially sentenced to death by military tribunals, although only 35 were actually executed in Cape Colony and an additional 90 executions were carried out in other parts of South Africa.
A key juridical lesson learned from the Boer War was that martial law and military tribunals organized under British authority could be used to provide order and process in the wake of internal conflict – which is among the most violent and disruptive of human activities. Similarly, it became plainly obvious from the British experience that such tribunals and martial law did not obviate the summary nature of the judicial procedures. In fact these tribunals served more as extensions of the commander in the field, rather than as ad hoc appendages to the civil judicial system.
The French connection to military tribunals, which were known as “councils of war” (les conseils de guerre), grew out of the particular legal notion of the “state of siege,” that is, when the French state is embroiled in a condition of national emergency. Under this state of siege, the military assumes police powers normally carried out by civil authorities, especially law enforcement, the maintenance of order, and judicial processes. The widest use of this concept was employed by the French during the First World War when the German army invaded and seized [*64] areas of France. The work of these councils covered acts that impinged on public safety and order, and it widely exceeded the normal bounds of military courts. Among the categories of offenses included were robbery, assault, fraud, insults to public officials, and promotion of prostitution and the sale of liquor. Yet, as Richards observes, it was the critical threat and fear of espionage – and public speech that was deemed contrary to the war effort – that prompted justification for a vast array of security measures and their enforcement under these councils. Declaration of a national state of siege and the expanded jurisdiction of these military tribunals in France during 1915-1918 were effected though government decrees aimed at enhancing public order.
At the same time, Richards points out that these same tribunals were used by the French government to prosecute and punish German soldiers for war crimes committed against French civilians (e.g., murder and massacre, “systematic terrorism,” killing of hostages, torture of civilians, rape, pillage and wanton destruction of private property). Likewise, during the war, the French also established commissions of inquiry with the purpose of amassing a record of German violations of international law. In this regard, after the war, a special Allied court was created before the German High Court in Leipzig in 1921 to prosecute war crimes committed by Germans against French, British and American nationals. The experience of this court was notably disappointing. While some 1,590 names were assembled, only 11 cases were eventually prosecuted, with the harshest punishment meted out to two defendants who were sentenced to four years imprisonment and who only a few weeks afterwards managed to escape permanently. In sum, the legacy of the French contribution to the use of military tribunals proved to be real and relevant. The French concept of the state of siege with its concomitant juridical institutions was widely exported, especially to South America, where they were later adopted and implemented by military regimes in Argentina, Bolivia, Chile, Colombia, Paraguay and Venezuela.
Lessons from the unsatisfactory experience with the Court at Leipzig led to significant changes by the victorious Allied powers in their official approach to prosecuting war crimes after the Second World War. Whereas British government officials preferred summary executions, the Americans led by Secretary of War Henry Stimson pressed for the use of military commissions. The American view prevailed. After the war, the greatest use of military commissions occurred on a worldwide national and international scale. The United Nations War Crimes Commission that was officially launched in 1943 became the legal umbrella under which several Allies tried Axis war criminals in their own national courts (especially the United States, Great Britain, France, Belgium, Denmark, Netherlands, and Norway). The crimes tried under these commissions largely focused on atrocities committed against Allied prisoners of war. According to official records, of the 2240 cases tried in these commissions, 1055 death sentences were imposed, although many of these were not executed. Likewise, some forty-five tribunals were established in the Far East to try Japanese military personnel in Japan, the Philippines, China, Australia and the Pacific Islands, conducting a [*65] total of 474 trials, of which the most prominent was that of the “Tiger of Malaysia,” General Tomoyuki Yamashita. He was subsequently executed in February 1946.
The final chapter of EXTRAORDINARY JUSTICE links the implications of these historical experiences with martial law, military tribunals and military commissions to the taking of “terror suspects” in the wars in Afghanistan and Iraq. As Richards observes, more than 7,000 suspects were captured and detained in “mop-up operations” in Afghanistan by late 2001. Of these, 600 “enemy combatants” were transferred to the Guantanamo facility during 2002. More relevant for this study is the author’s review of the main U.S. Supreme Court cases that relate to these terror suspects. A comparative analysis is provided for RASUL v. BUSH, HAMDI v. RUMSFELD, and HAMDAN v. RUMSFELD. His conclusion is instructive, though not without controversy: The United States is engaged in a war against an international terrorist network, al-Qaeda, in which the rule of law must be “strictly adhered to even against those who are most ruthless to undermine it” (p. 164). This leads the author to conclude that the Supreme Court’s decision to render Common Article 3 of the Geneva Conventions as the basis for litigation by accused terror suspects “tends to disparage the role of the state to control and channel large scale violence” by providing individual litigants with “a ready avenue for side-stepping the entire apparatus of the state system” (p.169). Richards clearly believes that resort to military commissions by the United States in this time of “national emergency” is necessitated by our war against terrorism. One cannot help but wonder, however, whether the perceived exigency of the need for trial and punishment of the Guanatamo detainees through the use of military commissions might be undercutting the normal guarantees of justice reserved for accused offenders under the U.S. Constitutional law. Indeed, there appears to be hanging over the detainees the presumption of guilt – why else would they have been taken prisoner? – with the defendant having to prove his innocence before a military tribunal, rather than in a civil court guided expressly by the critical juridical presumption of “innocent until proven guilty.”
The fact remains, as Richards rightly notes, that the suggestion to set up military commissions and tribunals in the aftermath of the events of September 11 invites serious questions concerning the definitions of terms and concepts critical to the judicial process, such as “terrorism,” “due process,” “justice,” or “state of war.” Did the seizure of four domestic aircraft by foreign nationals using box cutters amount to “an armed attack” against the United States? If not, how can the United States justify its armed attack in “self defense” against al-Quaeda and Taliban forces in Afghanistan in October 2001? These are not trivial considerations, and finding satisfactory legal answers for them will have important implications on the lawfulness of bringing foreign nationals to trial on charges of complicity, whether in the United States, Iraq, Afghanistan, or at Guantanamo.
If a lesson is raised by this study, it is that the theme of accountability for [*66] violations of the law of war can at times be overridden by the quest for legal revenge and retribution. This is not to conclude that military commissions or courts martial are not useful; they clearly are for violations of military law by members of armed forces. But serious questions continue concerning their use as they affect the fundamental legal rights of the accused (e.g., the presumption of innocence, the right to counsel, the right to a speedy trial, the right to confront witnesses and the guarantee of due process). The author’s key concluding point is that international juridical institutions, such as the International Criminal Court, are inadequate for eliminating the immediate and pressing threats of sub-national terror networks to international stability and stability. He may well be right. Even so, there still persists the need for impartial justice and constitutional protections for defendants meted out by national courts. The degree to which these necessities can be accomplished through the use of military commissions for the detainees currently being held is yet to be fully and convincingly demonstrated.
This said, EXTRAORDINARY JUSTICE stands on its own as a significant study. It is well written and authoritatively documented. Indeed, Richards’ documentation contains an extensive and impressive variety of sources drawn from both domestic and foreign archives. The prose flows smoothly, making for an easy, comprehensible read. In a relatively few pages (less than 190), the volume presents a masterful learned account of the activities of military tribunals as instruments for dispensing justice, both during and after armed conflicts. As a consequence, its perusal is highly recommended. Scholars who advocate the use of military commissions to try civilian detainees will find this a very useful and relevant account. So, too, will those scholars who are interested in the modern evolution of these instruments and the various successes, failures, and abuses they have experienced in periods of internal conflict and declared “national emergencies.”
REFERENCES:
Sherrill, Robert. 1970. MILITARY JUSTICE IS TO JUSTICE AS MILITARY MUSIC IS TO MUSIC. New York: Harper & Row.
CASE REFERENCES:
HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).
HAMDI v. RUMSFELD, 524 U.S. 507 (2004).
RASUL v. BUSH, 542 U.S. 466 (2004).
© Copyright 2008 by the author, Christopher C. Joyner.
