Academic journal article Military Review

Ensuring Military Justice

Academic journal article Military Review

Ensuring Military Justice

Article excerpt

Commanders at every level know that ensuring military justice is a mission of the greatest importance; however, not all commanders know how to accomplish this. An abundance of information is available on military justice, and there is certainly no shortage of Army lawyers to advise commanders on these matters. Nevertheless, ensuring justice is a difficult mission.

The burden placed on commanders to fashion just the right punishment to suit each and every offense in a unit requires a delicate balance between the seriousness of the offense and the quality of the soldier. While no magic formula exists to ensure justice in every case, there are some standard guidelines for commanders to follow when handling military-justice matters.

Know the Mission

In military justice, the first thing commanders must understand is the mission-to do justice. Until commanders fully understand and appreciate this concept, they cannot ensure justice in their units.

The concept of justice sounds simple enough, but it is often complex when applied to specific cases. Recently, when asked how he ensured justice in his command, a general officer responded that he treated every case as if the suspect were his own son or daughter. He worked hard to ensure that he knew all the facts of the case and to give the soldier the benefit of all doubt. When imposing punishment, he made sure he knew the soldier's background and personality well enough to make the right decisions, just as he would in the case of his own children. This standard is a good one for commanders to remember and apply. Other abiding concepts will also help ensure justice.

Give justice high priority. When commanders are constantly faced with competing priorities, there is the temptation to take short cuts to get things done. When it comes to justice, there can be no short cuts. Justice is a mission that deserves the highest regard and the fullest attention to detail. There is simply no substitute for doing things right. Commanders should take whatever time is necessary to gather facts, obtain advice, and make the correct decisions.

Keep an open mind. Commanders must not prejudge cases. Until they have gathered all the facts and learned all relevant information about the case, they are in no position to do justice. Often, the first reports of misconduct are incomplete and sometimes inaccurate. By not jumping to conclusions about the case, commanders will be in a better position to calmly and objectively gather all the facts and respond appropriately to the incident. A commander without an open mind is like an infantry division without its cavalry. The commander will be operating blindly, which is catastrophic not only in warfare, but also in military justice.

Have moral courage. Commanders must have the moral courage to take the "hard right over the easy wrong." In military-justice cases, matters are often neither black nor white, but shades of gray. Gathering all the facts in a given case, learning the quality of the soldier involved, and understanding and applying the law are difficult and time-consuming tasks. On occasion, it is easy and lazy to make presumptions in the absence of facts, ignore the quality of the soldier, and either ignore or reject the applicable law. Commanders must resist the temptation to take this low road. Concerned parents would not treat their children this way. Soldiers deserve no less.

Err on the side of the soldier. Because evidence is sometimes ambiguous, conflicting, unclear, or uncertain, commanders often have to make decisions under less than desirable conditions. When faced with such situations, commanders should remember that the burden of proof is not on the soldier, but on the command. If the evidence does not meet the standard of proof, the suspect is considered not guilty.1 In close cases, the commander should give the soldier the benefit of the doubt because the U.S. system of jurisprudence holds that in a close case, it is better to find a guilty party blameless than to take the chance of convicting an innocent party. …

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