Transparency in Military Justice

John T. Phelps

Defense Institute of

International Legal Studies1

Public Perception

• Unfair to the soldier and unfair to the victim, especially if a civilian

• Shrouded in mystery

• Common perception: Military will cover up anything that makes it look bad

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Public Perception

Result of these perceptions:

Lack of confidence and trust by the public and lawmakers in the military and its justice system.

Lieutenant William Calley

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Countering NegativePublic Perception

Reality: The best military justice systems are fair, impartial and provide the accused and victim rights equal to or exceeding those provided by parallel civilian justice systems

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Countering NegativePublic Perception

• Reality: Militaries do a poor job of explaining their justice systems to the public

• Solution: Transparency

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Basis of a Military Justice System

• Military Justice has two purposes: to dispense justice and maintain good order and discipline.

• To serve these two purposes, military justice systems should stand apart from civilian justice systems, but should provide the same core human rights protections to defendants and victims.

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Basis of a Military Justice System

Balance is reflectedin national and international law.

Transparency must supportand reflect these purposes.

What is Transparency?

It is providing the public, press and soldiers full access to the military justice system as well as individual cases subject to the rights of the accused, rights of the victim and, in some very specific cases, national security.

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Positive Effects of Transparency

• Legitimacy of the military justice system and the military in general

• Public support for the military and military justice

• Civilian government support for the military

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Positive Effects of Transparency

• Positive/balanced treatment by the press

• Improved morale and discipline

• Helps recruitment and

retention

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What Should be Transparent?

• Military justice system in general

• Investigations • Charging process

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What Should be Transparent?

• Trials and the results of trials

• Post-trial process, to include appellate process

• Release as much information as possible

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How is Transparency Achieved?

• Court rules allow public access to trials

• Freedom of information and “Sunshine” laws

• Coordinate with Public Affairs/Public Information Office

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How is Transparency Achieved?

Facilitating press coverage:

• Notification of incidents, charges, trial dates and trial results

• Briefings on the justice system

• Access to military justice experts

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How is Transparency Achieved?

• Educate soldiers about the military justice system

• Engagement with international (e.g. ICRC) and non-governmental organizations (e.g. Human Rights Watch, transparency International)

• Victim and witness assistance programs

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How is Transparency Achieved?

Community relations

• Military open house day • Speakers for schools and

community groups • Use of web sites

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Transparency inInternational Military Operations

• Natural suspicion of troops from the outside

• Host nation often assumes the sending state will cover up misconduct and protect its soldiers even when misconduct is clear

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Transparency inInternational Military Operations

• Lack of transparency can affect credibility and success of the mission

• The military justice system can enhance credibility by demonstrating accountability

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Examples of Transparency inInvestigations and Courts-Martial

• US v. Hasan, Fort Hood Texas

• US domestic cases involving crimes against local civilians

• USS Greenville Court of Inquiry

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Examples of Transparency inInvestigations and Courts-Martial

• Abu Ghraib

• Crimes in Kosovo: UN KFOR US

• US v Green, Afghanistan

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