Malcolm Rivera
Military tribunals, also known as military courts, are a controversial aspect of the justice system that allows for the trial of civilians by military courts. This raises questions about the legality of such practices and the potential infringement of constitutional rights. For example, in Tunisia, the trial of MPs and lawyers by military courts has sparked debates about freedom of expression and the archaic nature of military codes. The interpretation and implementation of constitutional laws regarding military tribunals vary across different countries and states, as seen in the examples of Pennsylvania's constitution prohibiting special temporary criminal tribunals and Tunisia's military justice code, which allows for the trial of civilians.
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What You'll Learn
Constitutional loopholes
Military tribunals, or military courts, are legal by the constitution due to constitutional loopholes that have yet to be amended. These loopholes allow for civilians to be tried by military courts, despite the existence of laws that establish freedom of opinion, thought, expression, information, and publication.
One example of a constitutional loophole is Article 91 of the military justice code, which sanctions criticism of the army or its generals. This article has never been amended since its introduction in 1957 and directly contradicts Article 31 of the Constitution, which establishes freedom of expression.
Another example is Article 22 of Law 70 from August 6, 1982, which states that offences involving agents of the Internal Security Forces "while executing their duties" related to "internal or external security of the State or the maintaining of order" are to be judged "before the competent military courts". This article has been used to bring civilians who have assaulted border police officers on duty before military justice.
In addition, Article 149 of the Constitution states that "the military courts shall continue to exercise the powers vested in them by the laws in force until they are amended". This article gives MPs the responsibility of putting a law in place that specifies the prerogatives of these courts, but the constitutional project to reform the military justice system has never been implemented.
These loopholes have been attributed to the legacy of the Ben Ali dictatorship, with some experts arguing that the dictator intentionally maintained these laws as a way of intimidating his opponents.
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Outdated texts
The ability of military courts to judge civilians is a contentious issue, with critics pointing to the contradiction between this practice and constitutional provisions guaranteeing freedom of expression. In Tunisia, for instance, the military justice code's Article 91 sanctions criticism of the army, conflicting with Article 31 of the Constitution, which establishes freedom of expression.
Constitutional and legal experts attribute this situation to outdated texts that have not been updated. For example, Salsabil Klibi, a specialist in constitutional law, argues that the predicament is primarily a legacy of the Ben Ali dictatorship. Article 91, introduced in 1957, has never been amended, and the articles concerning civilians being tried by military courts have not been changed to prevent this practice.
Similarly, the constitutional expert argues that Ben Ali intentionally left these texts unchanged to intimidate his opponents. This claim is supported by the context of a fragile new state that sought to protect itself from any potential threats.
The failure to update these legal texts has resulted in a situation where civilians can be tried by military courts, despite constitutional provisions guaranteeing freedom of expression. This issue is not unique to Tunisia, as other countries may also struggle to balance the powers of their military and civilian justice systems.
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Dictatorship legacy
Military tribunals are distinct from courts-martial in the US. Tribunals are military courts that try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers who act as jurors, and the defendants are members of an enemy army. Military tribunals are generally not used for civilians, although there have been exceptions, such as during the American Civil War.
The use of military tribunals in the US has a long history, dating back to the American Revolution when General George Washington used them to prosecute British Major John André. The Union also employed military tribunals during and after the Civil War, including the trial of Native Americans who fought against the US during the Indian Wars. The Lincoln conspirators and several Democratic politicians were also tried by military commission. These tribunals were concluded before the Supreme Court's decision in Milligan, which addressed the controversial nature of using tribunals for civilians.
The Military Justice Act of 1983 gave the US Supreme Court the authority to review decisions from the US Court of Appeals for the Armed Forces, further cementing the role of tribunals in the military justice system.
The creation and operation of military tribunals have sometimes raised concerns about the separation of powers. Critics argue that the processes lack transparency and deviate from the framers' intended balance of powers during wartime. The use of military tribunals by the George W. Bush administration to try "unlawful enemy combatants" at Guantánamo Bay, Cuba, for example, was controversial.
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Protection of the state
Military tribunals are an important aspect of the US legal system, especially in times of war or national security concerns. They are distinct from courts-martial and operate outside the scope of conventional criminal and civil proceedings. Tribunals are military courts designed to try members of enemy forces, including those not affiliated with a particular state's military but accused of being unlawful combatants. This was seen in the Bush administration's use of tribunals to try "unlawful enemy combatants" held at Guantanamo Bay, Cuba.
The US Constitution provides a foundation for military tribunals, with several articles playing a role in their legal basis. Article I, Section 8 authorises Congress to establish tribunals inferior to the Supreme Court, and grants them the power to "make Rules for the Government and Regulation of the land and naval forces." Article II, Section 2 designates the President as Commander-in-Chief, providing a basis for military tribunal use. The Fifth Amendment also provides an exception for military matters, allowing specific cases to proceed without a grand jury indictment.
The Supreme Court has played a crucial role in upholding constitutional safeguards and ensuring that military tribunals operate within a valid legal framework. In Boumediene v. Bush, the Court affirmed that Guantanamo Bay detainees have habeas corpus protection and the right to challenge their detention in federal court. This highlighted the dynamic interplay between security and liberty envisioned by the Framers.
Military tribunals have faced scrutiny regarding their application, treatment of detainees, and the balance between national security and individual rights. This scrutiny underscores the enduring relevance of the Constitution in addressing contemporary legal challenges. The use of tribunals in cases involving civilians, such as during the Civil War, has also been controversial due to the differences between tribunal justice and common law.
In summary, military tribunals are an essential tool for maintaining military discipline and addressing offences during wartime or national security crises. They are constitutionally valid but must be carefully balanced with individual rights protections to ensure they operate within the boundaries of constitutional values.
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Military justice code
The UCMJ is comparable to the Federal Rules of Criminal Procedure and the Federal Rules of Evidence in the civilian justice system. It has evolved since its implementation, often paralleling the development of the federal civilian criminal justice system. In some instances, the UCMJ has been ahead of changes in the civilian criminal justice system. For example, a rights-warning statement similar to the Miranda warnings was required by the UCMJ a decade and a half before the Supreme Court ruled in Miranda v. Arizona.
The UCMJ introduced the United States Court of Appeals for the Armed Forces, which replaced the earlier Court of Military Appeals. It also established the Judge Advocate General's Corps in the Navy. The UCMJ is subject to change and amendment, with the Secretary responsible for adopting procedures to ensure that legal guidance is published whenever statutory changes are implemented.
Soldiers and airmen in the National Guard are generally exempt from the UCMJ unless they are activated or recalled to active duty by executive order or during their annual training periods. However, they may still be subject to their respective state codes of military justice or state civil and criminal laws.
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Frequently asked questions
Article 91 of the military justice code sanctions criticism of the army or its generals, which contradicts Article 31 of the Constitution, which establishes "freedom of opinion, thought, expression, information and publication". Article 149 of the Constitution states that "the military courts shall continue to exercise the powers vested in them by the laws in force until they are amended", giving MPs the responsibility of putting a law in place that specifies the prerogatives of these courts.
According to a constitutional expert, the context is that of a "new state that was perceived as fragile and that [they] wanted to protect from any potential threat".
The Ben Ali dictatorship is blamed for the ability of military courts to judge civilians. Ben Ali could have revised the text but chose not to as a way of intimidating his opponents.
In 2021, seven members of the Al Karama party, including lawyer Mehdi Zagroubi and six MPs, were brought before a military court in what was known as the "airport affair". They were accused of assaulting border police officers on duty, which, according to Article 22 of Law 70 from 1982, is an offense to be judged by a military court.
There was a constitutional project to reform the military justice system, but it was never implemented.
