Legal action against individuals in the Armed Forces

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8 years 10 months ago #190214 by Kit

Alethea Thompson wrote: No, they're not considered AWOL, but we can charge them again, it does not become double-jeopardy in cases like the one in Naha you cited (as it would happen, I was an MP in Okinawa for three years). You can still have representation from a military JAG officer if you're charged by the local government.


Ah thank you! I thought I had read it but I could easily have heard it on the grapevine too ;)

I'm jealous of your Okinawa assignment!

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8 years 10 months ago #190223 by RyuJin
ah, something i've been through...the military has specialist lawyers called jag (judge advocate general)...they are superb lawyers specializing in military law....the military has several levels of court, in the navy there's chiefs mast, captains mast, special court martial, and general court martial...the punishments vary in severity depending upon which level you're at with general court martial having the most severe....as has been pointed out, you cannot be punished for following lawful orders under military law, you can be punished for violating civilian law under both military and civilian law depending upon the crime....military punishments tend to be more severe than civilian punishments.

as to the general in the article....i don't think he should be charged, considering how long ago the events occurred....of course the military doesn't have a statute of limitations like civilians do...

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8 years 10 months ago #190229 by Alethea Thompson
It was very awesome, I also enjoyed my trips to mainland. Kamizu, if you ever go to Japan for a visit, let me know so I can direct you to the coolest spots in Kyoto or Okinawa. :) I've been to Tokyo, Hakuba and a city that you could access Fuji from, but Kyoto was where I spent most of my vacations. :)

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8 years 10 months ago - 8 years 10 months ago #190243 by Reacher
I write, not as a service member of the United Kingdom, but of the United States. I am not as well-versed in British military and civil law as I am in the proceedings and processes of the Uniform Code Of Military Justice. I can, however, offer insight to some of the over-arching themes written about by the author.

Good points all around so far, firstly. I am happy to see well thought-out positions that are flexible enough to be informed not by predispositions and prejudice, but by reason. I had to do a bit of boning up on the specifics written about by the author...I am certainly willing to be corrected if anything I mention is not accurate and I encourage all to help me fact-check.

I don't think that anyone - the author included - is arguing that military service members should not be held accountable for their actions. The fundamental questions asked here are the methods by which the British military is held accountable, and under what forms of law.

Before making a decision, it is very important to understand the contextual overlay at work here.

Prior to the Crown Proceedings Act of 1947 , the British Government enjoyed 'Crown Immunity' from civil actions - basically the Crown was above it's subjects' ability to call it on the carpet for negligent and unsafe (albeit un-criminal) behavior. This included all government functions, including fire departments, police, and public works elements. Until 1947, if a government-employed electrician left work and accidentally left a power line down on the ground and your child died from picking it up...the government was immune from civil tort action. As far back as 1828, there were calls for equality in civil court between the British Government and its subjects, but it would take another century before anything really changed legally. In the meanwhile, there were many clever workarounds to illuminate and censure the government when it displayed a lack of consideration. As a byproduct of WWII, concerns arose over the rights of workers because of the high level of immunity enjoyed by an entity that had such staggering control and influence over private industry. To countermand this, the Act was passed in 1947 and ratified in 1948 without much resistance. Here are the main points that have bearing on this discussion:


Section 2 renders the Crown liable as though it were a natural person for:

Torts committed by its servants and agents;
Common law duties of an employer to its servants and agents; and
Common law duties as an owner or occupier of property.


Now the act had limitations, including actions resulting in death or injury of one member of the British Armed Services by another. This is purely speculation, but it sounds to me like this was an effort to shield British battlefield commanders from a potentially staggering number of civil suits by post-war grieving families. Well over a quarter million lives were lost in Britain and its territories during the war, and if each of those families were awarded the right to litigation for negligent death...they would have barely scratched the surface of that number even today. That portion of the act was repealed in 1987, a period in which the British military was still dealing with The Troubles in Northern Ireland, but not engaged in conflict abroad. It was also a period in which the British armed forces were being scrutinized very heavily for its activities in a civil setting - civil court seemed one recourse to keep the military acting right in a sensitive civil environment. The military acted in more of a policing function in that capacity, than a conventional war machine.

It's important to note that this 'Crown Immunity' was for Tort Law

Tort law is different from criminal law in that: (1) torts may result from negligent but not intentional or criminal actions and (2) tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail in a tort case even if the person who caused the harm was acquitted in an earlier criminal trial.


When the court system dropped Crown Immunity in 1987 for the military, it forced the Armed Services in Britain to take a very hard look at their safety standards and considerations - service members getting severe frost-bite on training exercises due to shockingly poor planning, throwing very junior soldiers into dangerous tasks for which they had little training, and fielding very poor equipment which resulted in injury. Taking a hard look at all these is a good thing because it holds leaders accountable for the training and equipping systems they have in place that keep people safe. Then in 1998 the UK adopted the Human Rights Act , which incorporated the European Convention on Human Rights (ECHR) into British Law - basically they would be able to conduct ECHR proceedings in the UK instead of having all ECHR complaints filed at the ECHR courts in Strasbourg. The strings attached, however, would be that ALL articles of the ECHR are adopted. Once the wars in Afghanistan and Iraq began in 2001 and 2003, tort claims under Article 2 (Right To Life) began to emerge from the relatives of dead soldiers - in many cases even after a military investigation determined there was no human rights of other ethical violations. Things like vehicle roll-overs and lack of foresight to ward against IED strikes were all attempts at invoking a tort claim of negligence under Article 2. They could do this because there was no Crown Immunity protecting Armed Services members any longer, and the adoption of the ECHR into the court system of the UK following the Human Rights Act of 1998. Moreover, the courts began to uphold claims from non-British citizens - citizens of Iraq and Afghanistan because they determined that the ECHR Article 2 applied to anywhere the Crown had official agents of the government operating on behalf of the people of the UK. Not only that, but claims are emerging from wartime events occurring as far back as 65 years ago. I think in concept, all of these laws bring quite a few good things to the table. However, in succession they open the gates to potential disaster. For a couple reasons.

1. The intent of the Crown Proceedings Act of 1947 was to hold the government accountable for its actions due to negligence in civil court in a peacetime setting. The exemption of the Armed Forces for the 1947 Act was included for the very reasons the British government is having difficulty with civil judicial creep today.

2. The 1987 repeal to Ministry of Defense Crown Immunity was intended to hold military leaders accountable for their safety and health systems - which it did. Alone, that's a very good thing. But coupled with an extremely inclusive understanding of the jurisdiction of the Human Rights Act, this process can be abused very, very easily by any and all of the UK's wartime enemies. Additionally, this is tort law - not criminal law. All that is required by law to establish guilt is a preponderance of evidence...a much easier burden of proof than reasonable doubt. This is problematic because it establishes a precedent of not just punishing amoral or unethical conduct in war...but tactical and operational mistakes. Mistakes happen all the time. Show me the perfect decision-maker in war and I'll show you a guy who has never left the wire. Some of these mistakes may be heedless or stupid blunders, yes, and deserve punishment - but in doing so the government is fostering an environment that is debilitatingly risk-averse. Catastrophically so, in many cases. Coming from a western military culture that is risk-averse even in some aspects of special operations, I can tell you firsthand how frustrating that is.

3. Introducing international civil law into wartime military operations opens the gate for political and judicial platforming from multiple angles. The US does not allow their service members to be tried outside the US court system for military actions, and for good reason. Allowing a foreign government to try a representative agent of the US government allows impartiality to fall victim to whatever political angling might be going on. Not only that, but even in the civilian domestic arena this can be true, which is another reason that the military courts try military members. The last thing we need is Al Sharpton getting involved in our affairs. Have you ever noticed during State of the Union Addresses by the President that the Joint Chiefs of Staff from all services remains seated and never clap during all of the standing ovations? It's symbolic of the military's impartiality to politics. We listen and do what we're told independent of any party system or candidate. That does seem a bit convenient and incestuous that the military courts are the only ones who can try a service member, but it is for the reasons listed above - not the inability of civilian lawyers to interpret military law. Additionally, if a soldier is being tried under general court martial...he has military lawyers presenting facts to a military jury of his peers. He is being judged by his adherence to the moral and ethical standards we expect of all those who serve in the execution of their duties. Those who understand the depth of that commitment innately and the culture surrounding it are more fit to judge his execution of duty than those who don't.

There is a very good political review on the topic by a British think tank called Policy Exchange. I concur with their recommendations to remedy the issue, particularly on the topic of legal primacy during conflict. My first thought as I read through the ECHR was that militaries who are signatory to it look to the Geneva Convention for legal proponency on both international and internal conflict. Here are their recommendations:

z The Government should derogate from the European Convention on Human
Rights in respect of future overseas armed conflicts – using the mechanism of
Article 15 of the ECHR.

z The Government should introduce primary legislation to amend the Human
Rights Act 1998 to prevent military personnel relying on Article 2 of the
ECHR against the Ministry of Defence in respect of injuries sustained on active
operations.

z The Government should revive the Armed Forces’ Crown immunity from
actions in tort during all future “warlike operations” overseas, by Ministerial
Order under the Crown Proceedings (Armed Forces) Act 1987.

z The Government should undertake to pay compensation, on the full tort
“restoration” measure, to all military personnel killed or wounded during
active operations – without need to prove fault.

z The Government should take the lead in supporting the efforts by the
International Committee of the Red Cross to strengthen the Geneva Conventions
for the conditions of modern warfare.

z The Government should make an authoritative pronouncement of state policy
– declaring the primacy of the Geneva Conventions in governing the conduct
of British forces on the battlefield.


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8 years 10 months ago #190254 by

RyuJin wrote: as to the general in the article....i don't think he should be charged, considering how long ago the events occurred....of course the military doesn't have a statute of limitations like civilians do...


Non-British people might be unaware, and perhaps this move by those who lost people a long while ago should be seen contextually in this light, but recently there have been a series of very serious historical sexual assault (including pedophilia) cases many of which have resulted in numerous successful prosecutions for past wrong doing. Some are dated to around the same time and people here seem very justified in bringing the perpetrators to justice.

The bringing to light of these past wrongdoings was even given the name "the Jimmy Saville" effect, after the man from whom the first historical cases of child sexual abuse were posthumously publicised.

From the point of view of those who lost loved ones it seems these such cases are equally deserving of a similar justice and I can't fault them for that, while I understand the practical necessity for having a time limit on bringing charges against people many victims will fail to see a moral necessity...

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8 years 10 months ago #190257 by ren
The way it actually works, is as long as stuff doesn't get reported, especially by a third-party, nothing gets investigated, and any military-supplied evidence is heavily redacted just in case one of them freedom of information requests comes in. Company commanders will try to dismiss any concerns as heat-of-the-moment, it-just-wasn't-possible-to-do-better cases. Ratting on fellow servicemen is not encouraged, although obviously even command doesn't want to keep rotten apples around, as they're just as bad for PR and promotions as doing the laundry in public. Point is, even a trained civilian court with appropriate jurisdication just wouldn't manage much.

Military contractors are an absolute joke, they're a military force, invited and financed to wage war by one country on another. No different from russian troops waging war against ukraine.

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8 years 10 months ago - 8 years 10 months ago #190348 by Adder

ren wrote: Military contractors are an absolute joke, they're a military force, invited and financed to wage war by one country on another. No different from russian troops waging war against ukraine.


I thought PMC's were not allowed to conduct offensive actions, and just contracted to perform personnel security, base security and logistics/supply? Sure some of them took it more seriously then others in regards to equipment (MD500's !!!! lol, oh so Capricorn One). Ukraine seems completely different to that with Pro-Russian forces engaged in sustained ground operations with armor and artillery support, but that is going off-topic.

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8 years 10 months ago #190380 by Reacher

Akkarin wrote:

RyuJin wrote: as to the general in the article....i don't think he should be charged, considering how long ago the events occurred....of course the military doesn't have a statute of limitations like civilians do...


Non-British people might be unaware, and perhaps this move by those who lost people a long while ago should be seen contextually in this light, but recently there have been a series of very serious historical sexual assault (including pedophilia) cases many of which have resulted in numerous successful prosecutions for past wrong doing. Some are dated to around the same time and people here seem very justified in bringing the perpetrators to justice.

The bringing to light of these past wrongdoings was even given the name "the Jimmy Saville" effect, after the man from whom the first historical cases of child sexual abuse were posthumously publicised.

From the point of view of those who lost loved ones it seems these such cases are equally deserving of a similar justice and I can't fault them for that, while I understand the practical necessity for having a time limit on bringing charges against people many victims will fail to see a moral necessity...


I'm not so interested in a statute of limitations as I am about ensuring that justice is done on both sides. The Armenian Genocide occurred a long time ago, but I think it is important to call it what it was and consider ways to make things right. Protection needs to go both ways, however - criminal wrongdoing on the part of armed forces certainly needs redress, but similarly those forces need protection from undue litigation that can grind their effectiveness to a halt. Wartime operations are cloudy enough without ambiguity in what legalities guide their conduct in a battle-space. The Geneva Convention has been the base document for that since its signatories agreed to it...and civil tort law is now judicially creeping into that territory. If the General's conduct back during his time in-theater warrants an investigation, tort law is not the right judicial system to do that.

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8 years 10 months ago #190382 by RyuJin
if the orders were lawful and within compliance of the geneva convention as well as military law, then there should be no grounds for any form of civilian prosecution...as you pointed out it would bring the military to a grinding halt...soldiers have it hard enough in combat, following the rules of engagement, geneva convention, military law, making sure of lawful orders, trying to process everything under fire....if they have to start worrying about being taken to court by civilians as well it will lead to indecisiveness which as any military member knows can get you or someone you know killed....things happen so fast in combat you need to be able to act faster....i'm glad i'm no longer in the military with all the new things they have bogging them down....

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