An unnecessary convenience: The assertion of the uniform code of military justice ('ucmj') over civilians and the implications of international human rights law
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Recently, Article 2 of the Uniform Code of Military Justice was amended to allow military commanders to assert jurisdiction over any person "accompanying the armed force" and "in a time of a declared war or a contingency operation" - an expansive grant of jurisdiction which allows military commanders to subject civilians to the military justice system. The prospect of submitting a civilian to a system of justice maintained, administered, and designed for military personnel raises a host of legal concerns at the domestic level. It also invokes concerns in international human rights law. This article briefly examines the nature of military jurisdiction and the military justice system and how that parallel legal universe compares to its civilian counterpart. It then examines the obligations of the United States under the International Covenant for Civil and Political Rights (ICCPR), the application of that treaty to the exercise of military jurisdiction over civilians, and relevant jurisprudence regarding parallel provisions in the European Convention on Human Rights. Ultimately, this article posits that the assertion of military jurisdiction over civilians violates the obligations of the United States under the ICCPR, which restricts the use of military trials for civilians and requires that such trials be not merely fair - but absolutely necessary. The availability of federal civilian jurisdiction under the Military Extraterritorial Jurisdiction Act makes the use of military jurisdiction over civilians an unnecessary convenience that military commanders should seek to avoid.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Ted Westhusing (2003). Taking Terrorism and ROE Seriously. Journal of Military Ethics 2 (1):1-19.
Steven H. Miles (2013). The New Military Medical Ethics: Legacies of the Gulf Wars and the War on Terror. Bioethics 27 (3):117-123.
Claire Thomas (2005). Civilian Starvation: A Just Tactic of War? Journal of Military Ethics 4 (2):108-118.
Sagar Sanyal (2009). US Military and Covert Action and Global Justice. International Journal of Applied Philosophy 23 (2):213-234.
Jessica Wolfendale (2007). Torture and the Military Profession. Palgrave Macmillan.
Harry van der Linden (2009). Barack Obama, Resort to Force, and U.S. Military Hegemony. International Journal of Applied Philosophy 23 (1):95-104.
Claudio Tamburrini (2010). Trading Truth for Justice? Res Publica 16 (2):153-167.
Jessica Wolfendale (2008). The Military and the Community: Comparing National Military Forces and Private Military Companies. In Andrew Alexandra, Deane-Peter Baker & Marina Caparini (eds.), Private Military and Security Companies: Ethics, Policies and Civil-Military Relations. Routledge.
Added to index2009-01-28
Total downloads2 ( #406,046 of 1,679,333 )
Recent downloads (6 months)0
How can I increase my downloads?