Military History Military Justice, the Anglo-American Tradition
by
Chris Madsen
  • LAST REVIEWED: 19 April 2015
  • LAST MODIFIED: 06 February 2012
  • DOI: 10.1093/obo/9780199791279-0045

Introduction

Armed forces rely upon good discipline and willing obedience to orders from service members to meet operational requirements and run the organization within a hierarchical structure of ranks and responsibilities. The system of rules and regulations that soldiers must follow is different from normal civilian life. To enforce expected behavior, most militaries maintain their own internal disciplinary codes for the administration of military justice; that is, justice peculiar to the armed forces and its members. The military is accorded certain authority and powers to try and to punish offending individuals. The most frequent means is summarily, by immediate superiors in a quasijudicial fashion, for service offenses less serious in nature; more formally, courts-martial composed of military judges, and, when necessary, panels of military members convene for civilian criminal and more serious military-related service offenses. Both forms are rooted in historical traditions and norms in respective armed forces, tempered by parallel developments in civilian jurisprudence, in which military justice generally lags. Today, decisions from courts-martial may be subject to appeal to higher courts on the basis of legality of finding and appropriateness of sentence, and in some countries harsher penalties, such as death, are rarely handed out or are expressly disallowed in the scale of punishments. It was not always so. Military justice, particularly in the field, closer to battle, could often be swift and arbitrary and have dear consequences for those individuals deemed to have contravened military authority and regulations. Military trials are part theater, to demonstrate military authority, and part enforcement of discipline and good behavior, for the sake of larger units and bodies of troops in a military context. Military justice encourages all members of armed forces to act in a predictable manner, in accordance with known rules, during the conduct of military operations and extends as well to those on the opposing side who might transgress accepted conventions and codes of conduct recognized by a group of nations engaged in armed conflict. War crimes, therefore, come under the purview of military justice when national military courts are involved. Military justice is still evolving as a serious field of legal jurisprudence in terms of legitimacy, mechanics of form, balancing of the unique needs and function of the armed forces in relation to society, and fairness to the individual, who, in most Western militaries at least, is a volunteer and chooses to serve the country.

General

Because each nation has different laws and traditions, it is hard to make generalizations about military justice applicable to all, though commonalities certainly exist. Each armed forces is unique in character, and even within those, individual service environments may have distinct attitudes and methods in regard to the maintenance of discipline. The historical trend has been toward greater uniformity across armed forces and closer mirroring of civilian criminal jurisprudence, in response to societal change. Reform of military law periodically becomes an issue when it falls too far behind or when some particular event happens that shakes public confidence in the military. Sherrill 1970 notes the practical nature of military justice as a separate form of legal jurisprudence that serves the particular needs of militaries in being operationally effective. Bishop 1974 describes the public pressure that can build when doubts are raised about militaries that have not performed according to expectations and the disappointment in the administration of military justice. Many writers are critical of military justice, premised either on the need for improvement or on the backwardness and supposed conservatism of military institutions. Other writers focus on the general aim and mechanics of military justice (for our purposes here, as practiced in the United States; other nations have similar how-to works). Davidson 1999 provides a basic guide to the practice of military criminal law geared toward a predominantly nonlegal audience, especially those either in or entering the military profession. Morris 2010 meets a similar need and, in focus and content, reflects the broader interpretation given to military justice today compared with earlier decades. Military justice, or rather military legality, touches upon many operational matters of interest to militaries, because the requirement for discipline and good behavior in the military context cannot be divorced from the core mandate of armed forces. Historical treatment of military justice is still catching up to this broader focus and to changes to military law itself. It is a very specialized field that requires some knowledge of the law and how it has been practiced in armed forces over time. In the early 21st century, good overviews focused on the history are yet to be written.

  • Bishop, Joseph W., Jr. Justice under Fire: A Study of Military Law. New York: Charterhouse, 1974.

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    The state of military justice in the US armed services post-Vietnam, by a knowledgeable military law writer.

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    • Davidson, Michael J. A Guide to Military Criminal Law. Annapolis, MD: Naval Institute, 1999.

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      A practical reference meant for the lay person, not practicing military lawyers. A good primer and introduction to the subject, from an American perspective.

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      • Morris, Lawrence J. Military Justice: A Guide to the Issues. Contemporary Military, Strategic, and Security Issues. Santa Barbara, CA: Praeger, 2010.

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        Notwithstanding the different subtitle on the cover (A Reference Handbook), this book provides a good general overview, in plain language, of the purpose of military justice in the American context, backed up with ample historical illustrations. The basics are well described in the middle chapters.

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        • Sherrill, Robert. Military Justice Is to Justice as Military Music Is to Music. New York: Harper and Row, 1970.

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          Title borrows from the French prime minister Georges Clemenceau’s famous twist of phrase for describing the different character of military justice. This older book, though now dated in many regards, still offers background and some interesting general statements on military justice in a pleasing manner and without too many encumbering references.

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          Anthologies

          Anthologies typically appear in commemoration of some milestone event or anniversary related to military legal institutions, or around some topical subject of contemporary interest. Fidell and Sullivan 2002 gave good service in the first decade of the 21st century by bringing together disparate writings on American military justice. In much the same way, Nolte 2003 compares and contrasts developments in military justice in various European countries to provide, at the very least, interesting insights into otherwise obscure military legal systems. In most countries military law does continually change, and these types of works do become dated. That is a problem for the lawyer and the military professional, but not necessarily the historian. Howard, et al. 1997 is an important collection on the development of the laws of war throughout history, in particular, societal and military contexts. Given the renewed interest in war crimes prosecutions during the late 1990s from conflicts in the former Yugoslavia and in Africa, Gutman and Rieff put together a notable encyclopedia-type collection of articles on the military and legal aspects of the topic (Gutman and Rieff 1999). Hensel 2005 and Whetham 2011 deal with legal dimensions facing armed forces engaged in contemporary operations falling under the paradigm of limited wars with limited objectives. Considerations of law and legal restraint are important in such conflicts.

          • Fidell, Eugene R., and Dwight H. Sullivan, eds. Evolving Military Justice. Annapolis, MD: Naval Institute Press, 2002.

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            A collection of chapters honoring the fiftieth anniversary of the Uniform Code of Military Justice in the United States. Good law school text if currency is not an issue.

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            • Gutman, Roy, and David Rieff, eds. Crimes of War: What the Public Should Know. New York: Norton, 1999.

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              A well-illustrated, alphabetically organized compendium of short articles by leading experts and commentators on the legal dimensions of war crimes.

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              • Hensel, Howard M., ed. The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force. Global Interdisciplinary Studies. Aldershot, UK, and Burlington, VT: Ashgate, 2005.

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                A collection of chapters by legal scholars on various legal aspects of contemporary military operations.

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                • Howard, Michael, George Andreopoulos, and Mark R. Shulman, eds. The Laws of War: Constraints on Warfare in the Western World. New Haven, CT, and London: Yale University Press, 1997.

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                  A wide-ranging selection of chapters by prominent historians, ranging from the ancient world to the present day.

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                  • Nolte, Georg, ed. European Military Law Systems. Berlin: De Gruyter, 2003.

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                    Chapters provide summaries of military law in selected European countries, for the sake of comparative understanding. Text seldom goes into too much detail, and ongoing reforms and changes in national codes of military justice have taken place since.

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                    • Whetham, David, ed. Ethics, Law, and Military Operations. Basingstoke, UK, and New York: Palgrave Macmillan, 2011.

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                      A useful compendium of chapters by academics and military practitioners on the intersection between ethics and legal considerations in the conduct of contemporary military operations. The first half provides theoretical frameworks of understanding, whereas the second half presents a selection of case studies.

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                      Advocacy

                      Several notable advocacy groups work outside the armed forces to heighten awareness about military justice and effect changes in policy and legislation. The National Institute of Military Justice is close to decision makers in Washington, DC, and provides objective commentary on most military law issues. The Palm Center, in California, was more narrowly focused on lifting the ban on homosexuals in the American armed forces and repeal of the “Don’t Ask, Don’t Tell” policy.

                      • National Institute of Military Justice.

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                        Website of not-for-profit organization affiliated with the American University Washington College of Law, focused on issues of military justice and informing the public, politicians, and government about them. The institute holds conferences, engages with the media, and publishes the newsletter Military Justice Gazette. A good source for current and topical subjects related to military justice in general.

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                        • Palm Center.

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                          Website of think tank at the University of California, Santa Barbara, dedicated to changing public views and policy toward the presence of gays, lesbians, and other sexual minorities in the US military. Numerous books and studies have shown the arbitrary treatment toward homosexuals in the armed forces in the past and the experience of other militaries in the integration of gays by legal and other means.

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                          Journals

                          Due to the specialized nature of the field, journals devoted to military law are usually connected with military legal departments in armed forces as part of the administration of military justice, training and educational activities, and professional development. The better journals combine the academic standards of rigorous legal scholarship with the insights of practitioners. Military Law Review and Air Force Law Review have the longest runs. Naval Law Review aspires to the same level and caters to naval audiences. Foreign armed forces have struggled to get full-fledged journals up and running for any consistent period of time. The New Zealand Armed Forces Law Review and IDF Law Review follow such a pattern. Military Law and Law of War Review/Revue de Droit Militaire et de Droit de la Guerre is intentionally international and comparative in perspective. Military law journals are generally found in the law libraries of most major universities as well as in specialized library collections at headquarters, staff colleges, and other military institutions. Government-published journals may be available on a subscription or free basis.

                          Reference Guides

                          Reference guides fall under the categories of textbooks, professional guides, and research aids. Filbert and Kaufman 1998 is naval focused for students in military academies, who are required to take this curriculum for professional development. Stone, et al. 2010 is a desk book for college-level instruction to prepare officers for positions of higher responsibility and command. Blackett 2009 disseminates the latest changes in British military law and justice to the armed forces and lawyers engaged in this type of work. A practical book such as this, published outside the military, by persons with firsthand knowledge, follows in the tradition of the military law books published in the 19th and 20th centuries by Gale and Polden. The objective of these texts is to increase awareness of military law throughout the armed forces. Hartigan 2011 is included among the reference guides because so much of the Lieber Code is extracted and annotated. Young 2004 provides tips on where to start when researching military justice and shows what is generally available. Young’s book is by no means exhaustive, especially as more material is continually put online by departments of defense, militaries, and courts; increasingly, courts-martial decisions and appeals before civilian-composed courts are available electronically, in PDF and other formats. Some archives have also started to put courts-martial and other related wartime legal records online, often full text searchable.

                          • Blackett, Jeff. Rant on the Court Martial and Service Law. 3d ed. Oxford and New York: Oxford University Press, 2009.

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                            A revised edition of J. W. Rant’s Courts-Martial, Discipline, and the Criminal Process in the Armed Service (Oxford and New York: Oxford University Press, 2003). The text, by the Judge Advocate General (Blackett), takes into account changes brought about by the United Kingdom’s Armed Forces Act 2006, which came into force in January 2009. The British system of military justice has been modernized and brought into line with civilian norms of jurisprudence, while preserving its essential character.

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                            • Filbert, Brent G., and Alan G. Kaufman. Naval Law: Justice and Procedure in the Sea Services. 3d ed. Annapolis, MD: Naval Institute Press, 1998.

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                              A basic introductory textbook catering to a specific audience, primarily naval cadets and midshipmen. Four parts focus on the history of naval law related to sea services, constitutional and criminal law, administrative law, and international law. Cases for illustrative purposes and study questions are included.

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                              • Hartigan, Richard Shelly. Military Rules, Regulations and the Code of War: Francis Lieber and the Certification of Conflict. New Brunswick, NJ: Transaction, 2011.

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                                A revised edition of an earlier work dealing with the practical code introduced by the jurist Francis Lieber for the conduct of Union military forces during the US Civil War. The Lieber Code provided a basis for later attempts to codify the conventions of warfare and disseminate them within armed forces.

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                                • Stone, Holly M., Kyle W. Green, Ryan D. Oakley, and Christine M. Herrera, eds. The Military Commander and the Law. 10th ed. Montgomery, AL (Maxwell Air Force Base): Air Force Judge Advocate General’s School Press, 2010.

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                                  The editors of this compilation of papers have changed over the years, and various editions exist. This desk book has been prepared by the Air Force Judge Advocate General’s School for use at the Air University. The book is intended to give prospective air commanders and the equivalent in other services a grounding in military justice and legal matters related to operations.

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                                  • Young, Stephen E. Reporting for Duty: A Primer on Researching Military Law. Law Library Lights 48. Washington, DC: Law Librarian’s Society of Washington, DC, 2004.

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                                    A useful research guide that is also available electronically.

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                                    Manuals

                                    Much military-justice content is to be found in manuals issued by militaries. Manuals may be treated both as primary and secondary sources, as articulating the provisions of military law that were known and applied within armed forces. Clode 1874, though an older, dated work, gives a great deal of information on British military law, for those countries that come from the British tradition. The United Kingdom’s first Manual of Military Law was issued in 1884 (War Office 1884), with chapters drafted by the jurist Lord Thring, and appeared in later editions. US Department of Defense 2008 is the latest manual on courts-martial in a long line of similar manuals for the armed services, particularly the War Department and US Army. Historians should consult the right manuals for their time period and be aware of changes and amendments that might have taken place around their areas of interest. Wells 1992 is an entire book devoted to the manuals used in the US Army, in respect to the laws of land warfare.

                                    • Clode, Charles M. The Administration of Justice under Military and Martial Law: As Applicable to the Army, Navy, Marines, and Auxiliary Forces. 2d ed. London: John Murray, 1874.

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                                      A classic study of British military law and military justice.

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                                      • US Department of Defense. A Manual for Courts-Martial, United States. Washington, DC: Government Printing Office, 2008.

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                                        A joint-service official guide for conducting courts-martial in the US armed services.

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                                        • War Office. Manual of Military Law. London: Her Majesty’s Stationery Office, 1884.

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                                          The standard official reference source for British and Commonwealth armed forces. This manual appeared in many editions.

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                                          • Wells, Donald A. The Laws of Land Warfare: A Guide to the U.S. Army Manuals. Contributions in Military Studies. Westport, CT: Greenwood, 1992.

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                                            A careful examination of the manuals pertaining to the rules of warfare issued by the army from 1863 to 1976. Significant changes and emphases are analyzed in a comparative fashion.

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                                            Movies and Television

                                            Military justice has been the subject of many good commercial films. The most memorable lines probably come from Jack Nicholson, in A Few Good Men (Reiner 2005), when two marines accused of murder on the military base at Guantanamo Bay, Cuba, are defended by Tom Cruise and Demi Moore. The Caine Mutiny (Dmytryk 2007) explores the dynamics of a ship’s crew who have lost confidence in their captain’s ability to command and in turn take over during an extreme weather event, which leads to a court-martial that reflects badly on everyone involved. In The Last Castle (Lurie 2002), Robert Redford is a senior US general who has been sent to military prison for command decisions in the field that led to loss of life and who gets drawn into leading a revolt to protest the actions of the tyrannical prison warden and guards. Rules of Engagement (Friedkin 2000) continues on the theme of command responsibility and the appropriateness of decisions in operations short of war. Breaker Morant (Beresford 2004) alternates between the courtroom and flashbacks to the field, as three Australian officers face a British trial for the murder of a German missionary and shooting of Boer prisoners of war after capture in South Africa, which ends in a firing squad on the veldt for two of the accused. These films, some based on equally good books, are suitable for classroom use, with proper explanation. The highly popular television drama series JAG should be approached with some caution, though it did bring the acronym for “Judge Advocate General” into the mainstream. The Big Picture—Military Justice previously used the television medium for training soldiers.

                                            • Beresford, Bruce, dir. Breaker Morant, 1979. DVD. New York: Wellspring, 2004.

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                                              Portrayal of the trial and execution of Australians accused of murder during the South African War, when Lord Kitchener was in command, from an Australian perspective. The irony is that the accused actually committed the crime for which they were charged and were punished accordingly, notwithstanding the surprisingly able case put forth by their inexperienced defending officer. Loosely based on true events.

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                                              • The Big Picture—Military Justice, 1955. DVD. College Park, MD: National Archives and Records Administration, 2008.

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                                                A twenty-nine-minute instructive video from the US Army’s television series The Big Picture, which ran from 1950 to 1975. Staged courtroom sequences highlight the working of military justice and key features of the Uniform Code of Military Justice.

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                                                • Dmytryk, Edward, dir. The Caine Mutiny, 1954. DVD. Culver City, CA: Sony Pictures, 2007.

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                                                  Humphrey Bogart gives a classic performance as a ship captain whose actions and poor relations with his subordinate officers eventually result in mutiny and a naval court-martial (not his). Trust in proper authority is a major theme in this film.

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                                                  • Friedkin, William, dir. Rules of Engagement. DVD. Hollywood, CA: Paramount, 2000.

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                                                    A rapid-reaction team leader (Samuel Jackson) orders his marines to open fire on a crowd of protesters during a nationals evacuation from the US embassy in Yemen, and his defending officer (Tommy Lee Jones) has to explain the commanding officer’s action before a court-martial. A sure way to ruin a military career, whatever the verdict.

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                                                    • JAG, 1995–2005. DVD. Hollywood, CA: Paramount, 2006–2010.

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                                                      If only the life of a military lawyer were so exciting as flying fighter jets off aircraft carriers and taking on bad guys in Iraq, Afghanistan, and elsewhere. The more typical work of preparing and filing briefs, handling claims and pension entitlements, and occasionally appearing in court almost seems mundane. A good public-relations vehicle nevertheless.

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                                                      • Lurie, Rod, dir. The Last Castle, 2001. DVD. Universal City, CA: DreamWorks, 2002.

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                                                        Although senior officers rarely get more than reprimands and fines if they come before court-martial at all, a disgraced general, played by Robert Redford, arrives at a military prison where his authority over men and tactical prowess are put to the test in a fight with the unpredictable prison warden, played by James Gandolfini.

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                                                        • Reiner, Rob, dir. A Few Good Men, 1992. DVD. Culver City, CA: Sony Pictures, 2005.

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                                                          This Hollywood blockbuster proceeds through a murder investigation on a military base outside the United States, which climaxes with military courtroom drama in Washington, DC, when the self-confident commanding general takes the witness stand.

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                                                          United States

                                                          Military justice in the United States, though owing a lineage to British practice and custom, has developed along a unique path over the last two-plus centuries, suited to its military developments, political structure, and experiences in war and conflicts. The concept of a citizen army dates from the earliest years of the republic, though since the end of World War II the volunteer professional has been more commonly the norm. The United States is the largest superpower in the world and maintains military forces matching that status on land, sea, and air. The American armed services fall under a common Uniform Code of Military Justice applicable to all members of the military. Generous 1973 describes the background of this disciplinary code and its influence on the administration of military justice. Each of the armed services maintains dedicated legal staffs, or Judge Advocate General’s Corps. The US Army and US Navy have published institutional histories tied to those legal branches, with US Army Judge Advocate General’s Corps 1993 and Siegel 1997. Kastenberg 2009 is one of the few biographies of a military officer known for contributions to the development of military law in the American context.

                                                          • Generous, William T., Jr. Swords and Scales: The Development of the Uniform Code of Military Justice. Kennikat Press National University Publications American Studies. Port Washington, NY: Kennikat, 1973.

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                                                            Still a useful historical treatment of the origins and background of the military justice code of the US armed services.

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                                                            • Kastenberg, Joshua E. The Blackstone of Military Law: Colonel William Winthrop. Lanham, MD: Scarecrow, 2009.

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                                                              Biography of an important American military law writer during latter half of the 19th century.

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                                                              • Siegel, Jay M. Origins of the Navy Judge Advocate General’s Corps: A History of Legal Administration in the United States Navy, 1775 to 1967. Washington, DC: US Navy Judge Advocate General’s Corps, 1997.

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                                                                Traces nearly two hundred years of historical development related to naval legal matters as background to creation of the Navy Judge Advocate General’s Corps. A sound institutional history that provides a broader context.

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                                                                • US Army Judge Advocate General’s Corps. The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775–1975. Buffalo, NY: W. S. Hein, 1993.

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                                                                  A centenary institutional history of the establishment and evolution of the US Army’s Judge Advocate General’s Corps, 1775–1975, including all major conflicts in which American military forces were engaged. The 1993 reprint also includes supplementary finding aids. Originally published in 1975 (Washington, DC: Advocate General’s Corps).

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                                                                  Early Years

                                                                  In the new republic the appropriate means to maintain discipline among citizen soldiers has been a major theme in the historiography. Harsh punishments borrowed from the British, such as flogging and death, were resented and arguably not very effective. Maurer 1964 describes discipline in Washington’s army as not being particularly good, but sufficient to maintain cohesion and to be operationally effective. As a higher commanding officer, George Washington used military justice as a tool to promote discipline, albeit not as much as he would have wished. Berlin 1976 notes the constraints that Washington faced in this regard. The citizen soldier ideal was lasting. Vargas 1991 suggests that punishments given out by officers, some considered unfair and inconsistent, were a leading cause of desertion. Desertion was a leading military crime, more so in wartime than in peace.

                                                                  • Berlin, Robert H. “The Administration of Military Justice in the Continental Army during the American Revolution, 1775–1783.” PhD diss., University of California, Santa Barbara, 1976.

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                                                                    Charts George Washington’s interest in the Articles of War, developed for the discipline of the republic’s citizen army and the work of the judge advocates, particularly in regard to the infliction of corporal punishment. The actions of Congress were at times disconnected from what was thought necessary by senior military officers in the field.

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                                                                    • Maurer, Maurer. “Military Justice under General Washington.” Military Affairs 28 (1964): 8–16.

                                                                      DOI: 10.2307/1984718Save Citation »Export Citation »E-mail Citation »

                                                                      A basic description of the state of discipline and military justice in the Continental Army under the command of George Washington.

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                                                                      • Vargas, Mark A. “The Military Justice System and the Use of Illegal Punishments as Causes of Desertion in the U.S. Army, 1821–1835.” Journal of Military History 55.1 (1991): 1–19.

                                                                        DOI: 10.2307/1986126Save Citation »Export Citation »E-mail Citation »

                                                                        A sense of military injustice was a leading cause of why soldiers chose to leave the army before the end of voluntary enlistments. Military justice was inconsistently applied and displayed many irregularities at the hands of officers and noncommissioned officers with very little legal training. Citizen soldiers voted with their feet instead of complaining to higher authorities, as allowed under the statutes and regulations, or simply taking it anymore.

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                                                                        US Civil War

                                                                        Historiography on the US Civil War is voluminous, and not surprisingly, military justice has also received a fair share of scrutiny. Alotta 1989 examines military justice among Union forces, particularly executions sanctioned by President Abraham Lincoln. Lowry 1999 provides more details on the individual executions, with the backgrounds of common soldiers. Bunch 2000 looks at military justice from the Confederate side. Similar detail is given for Confederate treatment of serious military offenses and courts-martial. Carmichael 2003 looks at the role of one well-known senior officer in the execution of troops under his command and reasons for the action. Fitzharris 2004 focuses on one military unit to see if assumptions about Civil War–era justice stand up to closer scrutiny. Samito 2007 explores the effect of race in the workings of military justice on the Union side and how particular military offenses were handled. Koerting 1995 examines the postwar trial and execution of the officer responsible for outrages at Andersonville Prison.

                                                                        • Alotta, Robert I. Civil War Justice: Union Army Executions under Lincoln. Shippensburg, PA: White Mane, 1989.

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                                                                          A book based on a doctoral dissertation at Temple University (1984). A study of common soldiers in the military justice system and President Abraham Lincoln’s predominantly negative influence during the Civil War years. The executions are fully documented with the best-available statistics and information.

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                                                                          • Bunch, Jack A. Military Justice in the Confederate States Armies. Shippensburg, PA: White Mane, 2000.

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                                                                            Another detailed examination of military justice in the US Civil War, on the Confederate South’s side. Considerable attention is given to military trials and courts, for which the author’s companion Roster of the Courts-Martial in the Confederate States Armies (Shippensburg, PA: White Mane, 2001) is also helpful.

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                                                                            • Carmichael, Peter S. “So Far from God and So Close to Stonewall Jackson: The Executions of Three Shenandoah Valley Soldiers.” Virginia Magazine of History and Biography 111.1 (2003): 33–66.

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                                                                              Deserters were executed under General Stonewall Jackson’s command for the first time. The situation in the army and the surrounding area reinforced the Confederate general’s penchant for discipline. Available online through purchase.

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                                                                              • Fitzharris, Joseph C. “Field Officer Courts and US Civil War Military Justice.” Journal of Military History 68.1 (2004): 47–72.

                                                                                DOI: 10.1353/jmh.2003.0370Save Citation »Export Citation »E-mail Citation »

                                                                                The application of military justice within the Third Minnesota Volunteer Infantry Regiment, a military formation with good discipline and judicious use of field officer courts, corrects the tendency toward reaching wider conclusions in regard to the Civil War era.

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                                                                                • Koerting, Gayla M. “The Trial of Henry Wirz and Nineteenth-Century Military Law.” PhD diss., Kent State University, 1995.

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                                                                                  A military court tried the former commanding officer at the notorious Andersonville Prison for acts against Union prisoners of war leading to widespread abuse and deaths. The nature and procedures of military justice at the time gave a great deal of discretion to the judge advocate, which was used in a very deliberate way in favor of the prosecution. Consequently, the military captain faced the hangman’s noose.

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                                                                                  • Lowry, Thomas P. Don’t Shoot That Boy! Abraham Lincoln and Military Justice. Mason City, IA: Savas, 1999.

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                                                                                    A study of the military offenses that warranted the death penalty after conviction by court-martial. The records encourage “bottom up” history.

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                                                                                    • Samito, Christian G. “The Intersection between Military Justice and Equal Rights: Mutinies, Courts-Martial, and Black Civil War Soldiers.” Civil War History 53.2 (2007): 170–202.

                                                                                      DOI: 10.1353/cwh.2007.0043Save Citation »Export Citation »E-mail Citation »

                                                                                      The treatment of African Americans recruited into Civil War armies under military law.

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                                                                                      World Wars

                                                                                      The United States fielded large military forces during the two world wars of the 20th century. Millions of men and women were put under military discipline and regulations, and some of them faced military justice for alleged crimes and contraventions. Military justice forms a part in some larger histories and studies of those conflicts, but those sources are not listed here. Military history focusing on the social aspects of military service, particularly from the lower ranks, can find much fertile ground among legal records. Given the available space here, only a representative selection of works specifically dealing with matters of military justice are provided to show the range. McGowan 2010 analyzes how young men refusing military service on the basis of conscientious objection were treated before the military-justice system. Margulies 1979 discusses the post–World War I legislative efforts to reform military justice. Luszki 1991 details a miscarriage of military justice that occurred when African American soldiers were hanged for a crime that they likely did not commit in the Pacific theater. Continuing on the theme of race, Wollenberg 1979 describes the US Navy’s handling of an alleged mutiny among sailors refusing to load dangerous ammunition on ships. Given the large and growing literature on World War II, historical study of military justice will undoubtedly attract some interest in the future, perhaps even more than in the past.

                                                                                      • Luszki, Walter A. A Rape of Justice: MacArthur and the New Guinea Hangings. Lanham, MD: Madison, 1991.

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                                                                                        A critical dissection of a military case involving the execution of six African American soldiers for the alleged gang rape of two white military nurses in the Southwest Pacific theater of operations, and General Douglas MacArthur’s role in the proceedings. The author, a contemporary observer of the trial and hangings, suggests confluence between racism and military justice.

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                                                                                        • Margulies, Herbert F. “The Articles of War, 1920: A History of a Forgotten Reform.” Military Affairs 43.2 (1979): 85–89.

                                                                                          DOI: 10.2307/1986663Save Citation »Export Citation »E-mail Citation »

                                                                                          Discusses the legislative context behind attempts to liberalize the system of military justice in the US Army during the years after World War I.

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                                                                                          • McGowan, James Patrick. “Too Brave to Fight: American Conscientious Objectors and Military Justice during the First World War.” PhD diss., University of California, Davis, 2010.

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                                                                                            Despite legislated conscription, several thousand young American men refused to serve in the US Army based on conscience, and of those a few hundred, after trial by court-martial, were sent to military prison. The War Department unevenly applied the statutes and regulations, thereby criminalizing individuals who believed in a different type of honor and courage.

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                                                                                            • Wollenberg, Charles. “Blacks vs. Navy Blue: The Mare Island Mutiny Court Martial.” California History 58 (1979): 62–75.

                                                                                              DOI: 10.2307/25157889Save Citation »Export Citation »E-mail Citation »

                                                                                              African American sailors faced institutional racial discrimination in the wartime US Navy, in terms of segregation and specified occupations. When sailors refused to load ammunition ships after an explosion at Port Chicago, near San Francisco, they were charged with mutiny and tried by naval courts-martial. The case became a focal point for equal-rights activists and forced the navy’s higher leadership to move toward decidedly more-liberal racial policies.

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                                                                                              Cold War

                                                                                              Owing to availability of government records and the relative recent nature of the (non)conflict, historiography of militaries during the Cold War decades has been slow to develop. The records related to courts-martial and other legal matters are often restricted for accession or privacy reasons. Although not insurmountable, the obstacles to access make research difficult, particularly when other topics and fields may be easier. The rewards, however, can be very fruitful and insightful. Hofmann 1993 describes the military trial and fate of a senior general tainted by having inadvertently allowed official secrets to be disclosed to the main adversary and published in newspapers, no less. Stevens 1999 follows another military trial for the accidental death of marines in a swamp and the effect it had on the Marine Corps. Hillman 2005 examines courts-martial as a foil for military culture during the Cold War and the disconnects that arose. Wolinsky and Sherrill 1993 documents the culture and policy that prevented homosexuals from being accepted in and ultimately caused them to be jettisoned from the military. The garrison nature of Cold War militaries gave rise to serious problems with discipline and crime in the military context, which future work might address. Drug use and alcoholism among military personnel were perennial challenges to the military.

                                                                                              • Hillman, Elizabeth Lutes. Defending America: Military Culture and the Cold War Court-Martial. Politics and Society in Twentieth-Century America. Princeton, NJ: Princeton University Press, 2005.

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                                                                                                A detailed study of Cold War–era courts, using a social-history perspective to show the insecurity of the state and military institutions in how persecuted military members were treated before the law. A gaping divide grew between a conservative military culture and the democratic ideals shared by willing and sometimes unwilling service members and common citizens.

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                                                                                                • Hofmann, George F. Cold War Casualty: The Court-Martial of Major General Robert W. Grow. Kent, OH: Kent State University Press, 1993.

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                                                                                                  A book based on a doctoral dissertation at the University of Cincinnati (1983). The indiscreet general serving as US military attaché in Moscow was brought up on espionage charges. Although little classified material was involved, the general was duly tried by court-martial in the context of political pressure and supposed military intrigue at the highest levels.

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                                                                                                  • Stevens, John C., III. Court-Martial at Parris Island: The Ribbon Creek Incident. Annapolis, MD: Naval Institute Press, 1999.

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                                                                                                    In 1956 six marine recruits drowned during an unauthorized punishment training exercise; the drill instructor responsible went before a court-martial. The author, drawing upon his expertise as a trial court judge, delves into various aspects of the trial and assesses the relative approaches of the prosecution and defense through the documentary record and interviews with participants.

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                                                                                                    • Wolinsky, Marc, and Kenneth Sherrill, eds. Gays and the Military: Joseph Steffan versus the United States. Princeton, NJ: Princeton University Press, 1993.

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                                                                                                      In 1987 a midshipman, Joseph Steffan, launched a lawsuit after being released from the US Naval Academy for being homosexual, without the normal out routine and being denied graduation. This volume documents the legal case against the military’s policy toward homosexuality, the government’s rejoinder, and the final verdict upholding the action.

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                                                                                                      Vietnam

                                                                                                      Next to the US Civil War, American involvement in Vietnam is perhaps among the most-studied subjects in military history. Military justice has benefited from some really good scholarship. Prugh 1975 is an early study on the work of military lawyers in that conflict. Borch 2003 is a newer, officially endorsed study of military legal work that is wider in scope and more detailed on the army side. Solis 1989 uses the same approach for lawyers of the Marine Corps. These histories, written by legal academic historians, are more than just dry institutional narratives; they put lawyers squarely in the action. Allison 2007 builds upon those works to provide the first in-depth study of military justice on the pointy end and work done by military lawyers. Belknap 2002 describes the trial and conviction of the officer implicated in the most well-known massacre perpetrated by American troops in Vietnam. Military justice served particular needs during a very difficult, and still contentious, conflict for the United States.

                                                                                                      • Allison, William Thomas. Military Justice in Vietnam: The Rule of Law in an American War. Modern War Studies. Lawrence: University Press of Kansas, 2007.

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                                                                                                        An important book based on extensive archival research and participant interviews. Changes to the Uniform Code of Military Justice in 1968 provide a backdrop to a renewed focus on counterinsurgency and promotion of the rule of law among soldiers and the civilian population. The author’s father was a Marine Corps lawyer in that conflict.

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                                                                                                        • Belknap, Michael R. The Vietnam War on Trial: The My Lai Massacre and the Court-Martial of Lieutenant Calley. Landmark Law Cases and American Society. Lawrence: University Press of Kansas, 2002.

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                                                                                                          An account of the most famous killing of civilians in Vietnam at the hands of American troops and the military trial that followed for the officer held to be most responsible. Calley’s conviction coincided with growing disenchantment in the United States with the war and its progress, which eventually played a part in Richard Nixon’s decision to withdraw US military forces.

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                                                                                                          • Borch, Frederic L., III. Judge Advocates in Vietnam: Army Lawyers in Southeast Asia, 1959–1975. Fort Leavenworth, KS: US Army Command and General Staff College Press, 2003.

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                                                                                                            The official historian of the Judge Advocate General’s Corps describes the challenges facing military lawyers deployed in the field during the Vietnam War at headquarters, formations, and divisions. Besides military justice, they were involved in giving legal advice on many matters related to the conduct of operations and international law in a counterinsurgency conflict.

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                                                                                                            • Prugh, George S. Law at War, Vietnam, 1964–1973. Vietnam Studies. Washington, DC: Department of the Army, 1975.

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                                                                                                              A pioneer study on the work of military lawyers in the Military Assistance Command during American involvement in the Vietnam War.

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                                                                                                              • Solis, Gary D. Marines and Military Law in Vietnam: Trial by Fire. Marine Corps Vietnam Series. Washington, DC: US Marine Corps, 1989.

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                                                                                                                The administration of military justice and work of military lawyers from a US Marine Corps perspective by the closest person to an official historian. The research is first rate, and the text, very readable.

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                                                                                                                Military Appeals

                                                                                                                The notion of allowing appeals from the decisions of courts-martial, taken for granted today, has been around for only approximately sixty years. Prior to that time, convicted soldiers had few avenues for challenging the judgments of military courts and higher authorities. There is still no formal appeal from summary trials and similar proceedings. The courts and bodies of judges formed to deal with military appeals tend to be civilian in Western militaries. Lurie 1992 and Lurie 2001 describe the background, personalities, and organizational structure of the US Court of Appeals for the Armed Forces, up to 1980. In many respects, this set of books is another predominantly institutional history without extensive reference to the judgments that the court and judges actually handed down. More work needs to be done in this regard. Cummings 2005 suggests that the selection process for judges on the court has avoided the intrusion of politics and political influences. Further research is needed to prove conclusively this point.

                                                                                                                • Cummings, Craig Peter. “Is Anyone Listening? An Analysis of Public Opinion of the Supreme Court, Diversity in the Courts of Appeals, and Confirmations to the Military’s Highest Court.” PhD diss., Columbia University, 2005.

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                                                                                                                  Puts forth the view that appointment of judges to the US Court of Appeals for the Armed Forces is devoid of normal partisanship of judicial selection under the American system.

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                                                                                                                  • Lurie, Jonathan. Arming Military Justice: The Origins of the United States Court of Military Appeals, 1775–1950. Princeton, NJ: Princeton University Press, 1992.

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                                                                                                                    Continued in Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951–1980 (Princeton, NJ: Princeton University Press, 1998). Two volumes setting out the background to military appeals from courts-martial and the institutional developments and personalities involved after establishment of the US Court of Appeals for the Armed Forces over the next thirty years. Some attention is given to prominent cases heard by those judges, their significance, and the impact of broader civilian influences.

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                                                                                                                    • Lurie, Jonathan. Military Justice in America: The US Court of Appeals for the Armed Forces, 1775–1980. Rev. ed. Lawrence: University Press of Kansas, 2001.

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                                                                                                                      The newer 2001 edition is revised and abridged from the previous pair of books (see Lurie 1992).

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                                                                                                                      United Kingdom

                                                                                                                      The United Kingdom, from which the United States and English-speaking Commonwealth countries based their own military penal codes, has a long tradition in the development of military law and the workings of military justice. Wiener 1967 devotes much space to British military practice in North America, particularly in regard to civilians. A large historiography pertains to military law and courts-martial during the 18th century, both in military and naval contexts. Steppler 1987 is representative of the state of scholarship and its academic rigor. The execution of British soldiers during World War I has also been popular among historians. Putkowski and Sykes 1999 offers details behind the individual executions and the stance of higher commanders, repeating many of the old stereotypes. Oram 2003 adopts a fresh approach and reaches different conclusions. Connelly and Miller 2004 shows that the influence of commanders was still apparent in courts-martial during World War II. During World War I common soldiers convicted of military crimes could be subjected to the death penalty. French 1998 outlines the factors that prevented this punishment from being inflicted in the next world war. Rubin 2005 again focuses on courts-martial during the war and the decades after to gauge attitudes toward discipline and the role of military justice in enforcing it within the British armed forces. Historical work on British military justice, which is substantial by academics, is usually distinguished from that of legal and military practitioners. Rubin 2002 crosses that divide with a considered survey of the progress of British military law up to the present and the dominant influences that have formed it. Scholarship in the field stands to benefit from the effort.

                                                                                                                      • Connelly, Mark, and Walter Miller. “British Courts Martial in North Africa, 1940–3.” Twentieth Century History 15.3 (2004): 217–242.

                                                                                                                        DOI: 10.1093/tcbh/15.3.217Save Citation »Export Citation »E-mail Citation »

                                                                                                                        The desire of higher commanders in the British Eighth Army to set examples for the sake of discipline and morale was reflected in the frequency of courts-martial and the conduct of individual cases. Command influence was indirect but significant. Available online through purchase.

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                                                                                                                        • French, David. “Discipline and the Death Penalty in the British Army in the War against Germany during the Second World War.” Journal of Contemporary History 33.4 (1998): 531–545.

                                                                                                                          DOI: 10.1177/002200949803300405Save Citation »Export Citation »E-mail Citation »

                                                                                                                          Because the British eschewed the death penalty for the military offenses of desertion and cowardice in 1930, soldiers suffering from psychiatric breakdowns or leaving their posts during World War II were treated in different ways, including detention and imprisonment. Some field commanders argued for reintroduction of the death penalty, but they were overruled by political expediency and the pressing need to conserve all possible sources of manpower. Available online through purchase.

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                                                                                                                          • Oram, Gerard. Military Executions during World War I. New York: Palgrave Macmillan, 2003.

                                                                                                                            DOI: 10.1057/9780230287983Save Citation »Export Citation »E-mail Citation »

                                                                                                                            A book based on a doctoral dissertation at Open University (2002). Challenges the prevailing view that British military justice was arbitrary and indifferent toward common soldiers. Military commanders transitioned from traditional to more progressive methods of enforcing discipline among troops engaged in major operations.

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                                                                                                                            • Putkowski, Julian, and Julian Sykes. Shot at Dawn: Executions in World War One by Authority of the British Army Act. Rev. ed. Barnsley, UK: Leo Cooper, 1999.

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                                                                                                                              Describes in some detail the execution of British and Commonwealth soldiers convicted of desertion and cowardice on the western front.

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                                                                                                                              • Rubin, Gerry R. “United Kingdom Military Law: Autonomy, Civilianisation, Juridification.” Modern Law Review 65.1 (2002): 36–57.

                                                                                                                                DOI: 10.1111/1468-2230.00365Save Citation »Export Citation »E-mail Citation »

                                                                                                                                Places the evolution of British military justice into distinct stages of adaptation to progressively wider considerations, responding to military, political, and societal changes. It has been nothing less than complete transformation from the once closed and narrow system of military justice practiced in the armed forces. Available online through purchase.

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                                                                                                                                • Rubin, Gerry R. Murder, Mutiny and the Military: British Court Martial Cases, 1940–1966. London: Francis Boutle, 2005.

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                                                                                                                                  A leading legal historian specializing in military justice presents a series of twenty army and air force courts-martial involving serious offenses in the United Kingdom and abroad, where the British armed forces served. The cases, though each different in circumstances and outcomes, show remarkable continuity in terms of military institutions’ efforts to maintain discipline and public confidence.

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                                                                                                                                  • Steppler, G. A. “British Military Law, Discipline, and the Conduct of Regimental Courts Martial in the Later Eighteenth Century.” English Historical Review 102.405 (1987): 859–886.

                                                                                                                                    DOI: 10.1093/ehr/CII.405.859Save Citation »Export Citation »E-mail Citation »

                                                                                                                                    The harshness of military justice meted out to common soldiers by lower courts-martial was tempered by the range of other punishments available to such bodies. A certain acceptance might even be said to have existed. Available online through purchase.

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                                                                                                                                    • Wiener, Frederick Bernays. Civilians under Military Justice: The British Practice since 1689, Especially in North America. Chicago: University of Chicago Press, 1967.

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                                                                                                                                      Discusses how civilians have fared before military courts under British jurisdiction. A little less than half the text is devoted to the military justice of the British army in North America during the 18th century.

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                                                                                                                                      Canada

                                                                                                                                      Until passage of the National Defence Act of 1950, Canada predominantly used British military law tailored to Canadian circumstances and sensibilities. Canadian troops deployed overseas fell under British disciplinary provisions and were tried by British military courts in the South African War and World War II. Hémond 2008 studies the courts-martial held for Canadians on the western front. Madsen 1999 is a long-span survey of military law developments in Canada from the start of the country up to the late 1990s, with an emphasis on training and education. McDonald 2002, essentially an institutional history, narrates the work of military legal officers in Canada’s Office of the Judge Advocate General. Canadian military justice remained relatively ignored, up to the shocking torture of a civilian detainee in Canadian military custody during a peacekeeping operation in Somalia that led to a government commission of inquiry and calls for sweeping reform to military law and military accountability. Bercuson 1996 examines the factors and personalities behind that incident. Létourneau and Drapeau, the former, one of the commissioners in the Somalia public inquiry and a federal court judge, prepared a bulky compendium of military-justice-related materials (Létourneau and Drapeau 2006), taking into account the statutory changes that took place in the wake of Somalia. Madsen 2008 keeps case reporting up to date with summaries of all courts-martial and appeals held in the Canadian Forces, going back to 1972. Not even the US armed services can boast such coverage in recording of courts-martial decisions. This resource is essential for historical work on trends in charges and sentencing, particularly because the information is available only with great difficulty, in government repositories, or not at all.

                                                                                                                                      • Bercuson, David. Significant Incident: Canada’s Army, the Airborne, and the Murder in Somalia. Toronto: McClelland and Stewart, 1996.

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                                                                                                                                        This historical account of the torture and death of a detained civilian at the hands of Canadian soldiers appeared before the findings of a commission of inquiry into the affair were suppressed by the government. The photographs are sensational.

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                                                                                                                                        • Hémond, Marc-André. “Military Law, Courts Martial and the Canadian Expeditionary Force, 1914–1918.” MA thesis, University of Manitoba, 2008.

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                                                                                                                                          Reexamination of the courts-martial held for Canadian troops on the western front during World War I and the types of offenses tried. Some courts-martial records are available online through Library and Archives Canada.

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                                                                                                                                          • Létourneau, Gilles, and Michel W. Drapeau. Canadian Military Law Annotated. Toronto: Thomson Carswell, 2006.

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                                                                                                                                            A thick compendium of materials related to military justice and the organization of the Canadian Forces. Now somewhat out of date in terms of case law. See the authors’ Military Justice in Action: Annotated National Defence Legislation (Toronto: Carswell, 2011) for a later look at case law.

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                                                                                                                                            • Madsen, Chris. Another Kind of Justice: Canadian Military Law from Confederation to Somalia. Vancouver: University of British Columbia Press, 1999.

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                                                                                                                                              A historical survey from the 1868 Militia Act up to the late 1990s. Emphasis is on developments in military justice and military legal education in the armed forces.

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                                                                                                                                              • Madsen, Chris. Military Law and Operations. Aurora, Canada: Canada Law Book, 2008.

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                                                                                                                                                Loose-leaf publication focused on case reporting of court-martial decisions, appeals, and federal and Supreme Court judgments related to the Canadian Forces. Updated twice yearly.

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                                                                                                                                                • McDonald, R. Arthur. Canada’s Military Lawyers. Ottawa: Office of the Judge Advocate General, 2002.

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                                                                                                                                                  An officially commissioned history of the persons and activities in the Canadian military legal branch.

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                                                                                                                                                  India

                                                                                                                                                  Military justice in India can be divided between the colonial and postcolonial periods. British influence in the earlier period was persuasive, since the armed forces were tools of the imperial government, which eschewed full Indian representation politically. The 1857 mutiny was a defining moment in the relationship and is well covered in the literature. Roy 2001 discusses adaptations that the British made to the system of military justice system in the postmutiny period. The loyalty of Indians serving the British Raj in the military was always in question. India Defence Department 1911–1937 is an indispensable primary source for historical research, though hard to find. Das 1993 highlights the disparity in treatment before military justice in a racially fueled mutiny against British authority. India gradually assumed responsibility for its own armed forces and discipline after 1947. Sharma 1990 outlines developments in Indian military law and the departures from British origins. Kumar and Chaturvedi 2005 and Mangala 1992 are predominantly army focused. Kumar 1996 covers both military and civilian courts. Sharma and Jaswal 2006, a standard source, shows the latest in Indian military law. Kumar 2005 presents an institutional perspective.

                                                                                                                                                  • Das, Dipak Kumar. Revisiting Talwar: A Study in the Royal Indian Navy Uprising of February 1946. New Delhi: Ajanta, 1993.

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                                                                                                                                                    Thousands of Indian sailors mutinied against British officers in protest against racism and arbitrary treatment, bad food, overcrowding, and slow demobilization. One court-martial acquitted the officer that sparked the event, while the sailors deemed ringleaders were tried, punished, and cashiered without pensions owed them. The Indian government, several decades later, declared the sailors freedom fighters.

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                                                                                                                                                    • India Defence Department. Manual of Indian Military Law. Calcutta: Superintendant of Government Printing, 1911–1937.

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                                                                                                                                                      Relevant manual used in the Indian Army that appeared in several editions over the years.

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                                                                                                                                                      • Kumar, Nilendra, ed. Military Law: Then, Now and Beyond. New Delhi: Judge Advocate General’s Department, Army Headquarters, 2005.

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                                                                                                                                                        Compilation celebrating the second reunion of the Judge Advocate General’s Department. Good institutional trip through memory lane, with even an article on military lawyers’ wives.

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                                                                                                                                                        • Kumar, Nilendra, and Rekha Chaturvedi. Law Relating to the Armed Forces in India. 4th ed. Delhi: Universal Law, 2005.

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                                                                                                                                                          Revised edition of annotated presentation of the Army Act, 1950.

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                                                                                                                                                          • Kumar, Ran Vir. Defence Forces, Law, and the Courts. New Delhi: Soni, 1996.

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                                                                                                                                                            Helpful advice for members and former members of the armed forces coming before military and civilian courts in India.

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                                                                                                                                                            • Mangala, A. C. Commentary on Military Law in India. Calcutta: Eastern Law House, 1992.

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                                                                                                                                                              Army-focused treatise on Indian military law, with many extracts from statutes and regulations.

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                                                                                                                                                              • Roy, Kaushik. “Coercion through Leniency: British Manipulation of the Courts-Martial System in the Post-Mutiny Indian Army, 1859–1913.” Journal of Military History 65.4 (2001): 937–964.

                                                                                                                                                                DOI: 10.2307/2677624Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                Use of the court-martial apparatus to enforce order and discipline in the colonial Indian Army among indigenous troops of questionable loyalty and periodically inclined toward indiscipline. Remarkably, the British instituted progressive reforms and changed procedures to the benefit of Indian other ranks, thereby decreasing the frequency of military judicial proceedings and showing a marked trend toward greater leniency.

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                                                                                                                                                                • Sharma, G. K., and M. S. Jaswal. Study and Practice of Military Law. 6th ed. New Delhi: Deep and Deep, 2006.

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                                                                                                                                                                  An updated overview of military law from an Indian perspective.

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                                                                                                                                                                  • Sharma, O. P. Military Law in India. 2d ed. Bombay: N. M. Tripathi, 1990.

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                                                                                                                                                                    Former Judge Advocate General for the Indian Navy traces the history and structure of military law related to the Indian armed forces.

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                                                                                                                                                                    Operational Law

                                                                                                                                                                    Since the 1990s the scope of activities military lawyers do in the field has broadened, in conjunction with duties of military justice. Military legal officers are now integrated into headquarters staffs at various levels to provide advice on matters of operational law; that is, law practiced by the military, focused on operations and attainment of operational objectives. Rogers 2004 was among the first works to recognize this subtle shift in focus. Borch 2001 describes the practical experiences of military legal officers in newer types of operations undertaken by the US Army. Dickinson 2010 argues that the greater involvement of military lawyers and the advice they give to military decision makers has meant better compliance with international law standards. In the early 21st century, operations are complex and less than clear-cut in nature than previously, spanning open warfare to peace support operations; legal distinctions are equally hard to make. McCoubrey and White 1997 outlines some of the legal issues involved in peacekeeping and peacemaking operations carried out under the auspices of the United Nations. Gill and Fleck 2010 provides a practical handbook touching upon many of the same issues. Military justice is intimately connected with operational law, and the two cannot be considered separately.

                                                                                                                                                                    • Borch, Frederic L. Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti. Washington, DC: Office of the Judge Advocate General and Center of Military History, 2001.

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                                                                                                                                                                      Official history of the involvement of military lawyers near the battlefield, in matters broadly falling under the category of operational law. Coverage is given to individual military lawyers and personalities, the special legal requirements of military operations undertaken by American forces, and organizational changes to promote efficiency and effectiveness. Military lawyers are now integrated into all operations, based on these experiences.

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                                                                                                                                                                      • Dickinson, Laura A. “Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance.” American Journal of International Law 104.1 (2010): 1–28.

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                                                                                                                                                                        The presence of military lawyers in combat theaters has increased the likelihood that military commanders and troops will observe international legal norms and is generally seen as a positive development. The range of assignments is varied. Military lawyers, however, still provide advice only to stay on the right side of the law.

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                                                                                                                                                                        • Gill, Terry D., and Dieter Fleck, eds. The Handbook of the International Law of Military Operations. Oxford and New York: Oxford University Press, 2010.

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                                                                                                                                                                          A diverse and valuable collection of chapters touching upon many issues related to contemporary operations, particularly peace support, by military legal experts. The elements of operational law are very apparent.

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                                                                                                                                                                          • McCoubrey, Hilaire, and Nigel D. White. Blue Helmets: Legal Regulation of United Nations Military Operations. Aldershot, UK, and Brookfield, VT: Dartmouth, 1997.

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                                                                                                                                                                            The UN has become a major player in some contemporary operations for the sake of peacekeeping and peace enforcement. This book, roughly divided into two parts, describes the authority and legal basis for undertaking peace support operations as well as the legal dimensions of using forces deployed under UN auspices.

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                                                                                                                                                                            • Rogers, A. P. V. Law on the Battlefield. 2d ed. Melland Schill Studies in International Law. Huntington, NY: Juris, 2004.

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                                                                                                                                                                              An early treatise on topics of operational law, by a general officer and military lawyer.

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                                                                                                                                                                              Rules of Engagement

                                                                                                                                                                              As a facet of operational law, rules of engagement (ROE) guide when and how much force may legally be employed by troops and military units in specific operational environments. For some countries, ROE constitute legally binding orders issued from higher authority; accordingly, soldiers contravening ROE in the course of operations may face sanctions under military justice. Smith 1994 points out the role of commanders in drafting ROE, promulgating them, and making sure they are fully complied with. Findlay 2002 discusses ROE used in peace support missions and the limitations put on such operations for the use of force. Kahl 2007 asserts that the American military’s use of force in Iraq followed prescribed legal limitations and was no more than necessary. Henderson 2009 analyzes some legal aspects of targeting in contemporary operations. Beard 2009 notes the impact of increased automation in taking humans out of the targeting cycle and potentially absolving them from legal responsibility. ROE, by controlling the use of force, are central to the operations conducted by modern military forces.

                                                                                                                                                                              • Beard, Jack M. “Law and War in the Virtual Era.” American Journal of International Law 103.3 (2009): 409–445.

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                                                                                                                                                                                New capabilities and means of information gathering made possible by technological advances, toward an automated and robotic model displacing humans on the battlefield, present a fundamental game changer for the law and the military. Sound ROE are needed to limit unintended civilian casualties from such systems and ensure legal obligations and policy imperatives are observed, lest killing from a video screen thousands of miles away becomes too casual.

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                                                                                                                                                                                • Findlay, Trevor. The Use of Force in UN Peace Operations. Oxford and New York: Oxford University Press, 2002.

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                                                                                                                                                                                  Potential or real use of force poses certain challenges for armed forces engaged in peace support operations. The author analyses fifty years of experience with such UN-sponsored operations to identify norms, procedures, and limitations put on the use of force that could underpin operational doctrine. Verbatim ROE from actual UN operations are found in the appendices.

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                                                                                                                                                                                  • Henderson, Ian. The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I. International Humanitarian Law Series 25. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2009.

                                                                                                                                                                                    DOI: 10.1163/ej.9789004174801.i-268Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    Outlines and assesses the legal frameworks behind the application and use of force in military operations. Proper lawful targeting goes to the heart of ROE.

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                                                                                                                                                                                    • Kahl, Colin H. “In the Crossfire or the Crosshairs? Norms, Civilian Casualties, and US Conduct in Iraq.” International Security 32.1 (2007): 7–46.

                                                                                                                                                                                      DOI: 10.1162/isec.2007.32.1.7Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                      The US military consciously tries to limit the number of noncombatant casualties in the course of military operations and has, since the Vietnam War, ingrained a culture based upon use of overwhelming force within lawful bounds. A tension exists between restraint toward actions that might negatively affect civilians and military necessity to achieve operational objectives.

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                                                                                                                                                                                      • Smith, Hugh. The Force of Law: International Law and the Land Commander. Canberra: Australian Defence Force Academy, 1994.

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                                                                                                                                                                                        A useful treatise on the responsibility of commanders to follow the law in respect to use of force, with stress on Australian experience with ROE.

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                                                                                                                                                                                        Law of Armed Conflict

                                                                                                                                                                                        Most armed forces, particularly those of a professional nature in Western nations, are compelled to follow international legal norms set out in conventions ratified by individual states and prevailing custom. This body of international law applicable to military forces, termed the law of armed conflict, has developed historically and has been formally codified since the late 19th century. The website for The Avalon Project lists many of the treaties and conventions. Best 1980 was among the first serious considerations of the subject by an academic historian, arguing that a humanitarian desire to limit the suffering and negative effects of warfare was the driving factor. Hutchinson 1996 sees interest in the laws of war represented by the International Red Cross movement as an offshoot of the professionalization of military medicine in armed forces, which owes more to a desire to ensure predictability of conduct among adversaries, principally European-type conventional armed forces fighting each other. Best 1994 takes the author’s argument up to the modern period, past 1945, and puts greater stock in the response of conventional armed forces to unconventional types of conflicts. Osiel 1999 discusses the tendency of troops in challenging combat situations to follow orders without question and commit atrocities. Slim 2008 delves into when civilians actually become the targets of operations and military strategy, leading to military forces commiting acts that contravene the law of armed conflict. Such troops face few consequences under military justice, because the conduct is either officially or semi-officially sanctioned, no matter how illegal. Solis 2010 sets out clearly, with reference to the latest case law, the expected standards to be followed by military forces under the law of armed conflict. Observance of the law of armed conflict is far from perfect but is better than the alternative: not having any legal sanctions at all.

                                                                                                                                                                                        • The Avalon Project.

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                                                                                                                                                                                          An incredible primary documentary resource hosted by the Yale Law School’s Lillian Goldman Law Library, with targeted collections on the history of the law of armed conflict and wider politics and diplomacy.

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                                                                                                                                                                                          • Best, Geoffrey. Humanity in Warfare: The Modern History of the International Law of Armed Conflicts. London: Weidenfeld and Nicolson, 1980.

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                                                                                                                                                                                            Among the first serious historical works tracing developments in the laws of war in the European context, stressing the humanitarian impulse. A starting point inspiring much later scholarship.

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                                                                                                                                                                                            • Best, Geoffrey. War and Law since 1945. Oxford and New York: Clarendon, 1994.

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                                                                                                                                                                                              A follow-up to the author’s earlier book and arguably better. The Geneva Conventions of 1949 and their additional protocols and the observance of these in the diverse range of wars and conflicts that occurred in the latter half of the 20th century are highlighted.

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                                                                                                                                                                                              • Hutchinson, John F. Champions of Charity: War and the Rise of the Red Cross. Boulder, CO: Westview, 1996.

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                                                                                                                                                                                                Argues that interest in constraints on the conduct of warfare and the Red Cross movement matched the professionalization of military medicine in European armed forces. Predictability among militaries through common conventions and codes proved more enduring than strictly humanitarian concerns.

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                                                                                                                                                                                                • Osiel, Mark. Obeying Orders: Atrocity, Military Discipline, and the Law of War. New Brunswick, NJ: Transaction, 1999.

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                                                                                                                                                                                                  The pitfalls of unquestioning military obedience when confronted with challenges to the law of armed conflict. The soldier has a duty to obey unless orders are manifestly unlawful, a rather ambiguous concept easier to espouse in a courtroom than in actual practice, in operations in the field against an adversary that may not choose to play by the rules.

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                                                                                                                                                                                                  • Slim, Hugo. Killing Civilians: Method, Madness, and Morality in War. New York: Columbia University Press, 2008.

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                                                                                                                                                                                                    An explication of the rationales for why soldiers kill civilians and other noncombatants in armed conflict, in light of protections that have been afforded them under the law, as it has developed since the 1950s. Soldiers will do so when military necessity outweighs the consequences.

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                                                                                                                                                                                                    • Solis, Gary D. The Law of Armed Conflict: International Humanitarian Law in War. Cambridge, UK, and New York: Cambridge University Press, 2010.

                                                                                                                                                                                                      DOI: 10.1017/CBO9780511757839Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                      A reflective book based on the author’s teaching at the US military academy at West Point, intended to be a general introduction to the law of armed conflict, with amplifying cases and materials included. Suitable for use as a classroom text.

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                                                                                                                                                                                                      War Crimes

                                                                                                                                                                                                      Transgressions of the law of armed conflict are classed as war crimes. All armed forces have the potential to commit war crimes, no matter the level of professionalization and training. It is a fallacy that war crimes are committed only by the other side. In fact, war-crimes-type offenses are commonly tried under military justice through national military legal penal codes, in a quiet manner. More visible are the special courts established for the trial of war crimes, usually directed toward those deemed responsible on the losing side. War crimes trials may adopt the forms and procedures common to the court-martial, which they resemble in many regards. Marrus 1997, Maguire 2010, and Maga 2001 outline the major war crimes trials post–World War II in Nuremberg and Tokyo. Lingen 2009 examines one of the so-called minor war crimes trials, involving a senior German military officer. Weingartner 2011 focuses on some of those trials as well as the alleged crimes committed by American military forces. Solis 1997 and Barnett 2010 examine the military trials by court-martial of those accused of war crimes against civilians in Vietnam. Nelson 2008 suggests that the problem was bigger than the US military admitted and that military justice did not punish all the known perpetrators. Simpson 2007 attempts, with some force of argument, to impose a conceptual framework on why war crimes trials are important and why militaries should remain committed to efforts to punish the guilty. Troops with poor discipline running amok look for trouble and usually find it, to the detriment of civilian populations and those from the opposing side who might fall into their hands. One solution is a strong and effective system of military justice.

                                                                                                                                                                                                      • Barnett, Louise. Atrocity and American Military Justice in Southeast Asia: Trial by Army. Routledge Studies in the Modern History of Asia. London and New York: Routledge, 2010.

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                                                                                                                                                                                                        A cultural approach explains the motivations behind crimes of atrocity and illegal killings committed by soldiers against civilians and how the US Army tried these crimes before military courts. Stress is placed on meaning for the individuals involved and institutional condemnation of acts that went beyond the norm.

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                                                                                                                                                                                                        • Lingen, Kerstin von. Kesselring’s Last Battle: War Crimes Trials and Cold War Politics, 1945–1960. Translated by Alexandra Klemm. Modern War Studies. Lawrence: University Press of Kansas, 2009.

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                                                                                                                                                                                                          A fresh study of the controversial British war crimes trial of the German field marshal accused of ordering the deaths of civilians in retaliation for partisan activities in Italy. The dynamics behind the trial and conviction are well covered, as is the Cold War context that eventually led to his early release.

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                                                                                                                                                                                                          • Maga, Tim. Judgment at Tokyo: The Japanese War Crimes Trials. Lexington: University Press of Kentucky, 2001.

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                                                                                                                                                                                                            The American prosecution of leading political and military leaders behind the Japanese war effort and wars of aggression receives a new consideration to achieve better understanding of its true place in history and longer impact, if any.

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                                                                                                                                                                                                            • Maguire, Peter. Law and War: International Law and American History. Rev. ed. New York: Columbia University Press, 2010.

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                                                                                                                                                                                                              A revised edition of a book that unravels the legacies of the Nuremberg and other war crimes trials after World War II and the opportunistic stance that the United States has taken on interpreting international law in its own interest. A family personal connection makes the exploration of myth and reality an interesting endeavor.

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                                                                                                                                                                                                              • Marrus, Michael R. The Nuremberg War Crimes Trial, 1945–46: A Documentary History. Bedford Series in History and Culture. Boston: Bedford, 1997.

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                                                                                                                                                                                                                This abridged and annotated selection from the voluminous documentary record of the Nuremberg trial by a leading historian in the field makes basic primary sources accessible to a larger audience. Good source book for classroom use.

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                                                                                                                                                                                                                • Nelson, Deborah. The War Behind Me: Vietnam Veterans Confront the Truth about U.S. War Crimes. New York: Basic Books, 2008.

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                                                                                                                                                                                                                  A Pulitzer Prize–winning journalist finds shocking attempts to silence veterans who witnessed egregious crimes against civilians and to bury secret documents on the part of the military and its own compatriots, some of whom reached high levels of power in politics and government. The historian Nicholas Turse’s Columbia University doctoral dissertation, “‘Kill Anything That Moves’: United States War Crimes and Atrocities in Vietnam, 1965–1973” (2005), follows a similar line of argument.

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                                                                                                                                                                                                                  • Simpson, Gerry. Law, War and Crime: War Crimes Trials and the Reinvention of International Law. Cambridge, UK, and Malden, MA: Polity, 2007.

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                                                                                                                                                                                                                    A book presented as eight essays that attempt to answer some fundamental questions about the nature of war crimes trials and the continuing need for them. Theoretical frameworks drawing upon historical illustrations give shape to the central issues.

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                                                                                                                                                                                                                    • Solis, Gary D. Son Thang: An American War Crime. Annapolis, MD: Naval Institute Press, 1997.

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                                                                                                                                                                                                                      A marine “killer team” enters a small Vietnamese hamlet and kills everyone they find, including women and children, apparently under orders. The investigation, trials, and outcomes from this event are examined by a former marine and lecturer in military law at West Point. Good material for a case study.

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                                                                                                                                                                                                                      • Weingartner, James J. Americans, Germans, and War Crimes Justice: Law, Memory, and the “Good War.” Santa Barbara, CA: Praeger, 2011.

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                                                                                                                                                                                                                        Both sides in armed conflict have the potential to commit war crimes, as this study of the American and German experiences in World War II illustrates. Given some of his wartime actions, the US general George Patton was lucky to be on the winning side.

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