Image Source: UK Government, Open Government Licence/Crown Copyright
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The Current System of Military Justice
The military has a unique justice system. This shouldn’t come as a surprise because the military operates in a very different environment from civilians.
Several criminal offences can only be committed by members of the armed forces1. These include desertion, absence without leave (AWOL), insubordination/mutiny, assisting an enemy, looting, malingering (pretending to be ill) and reckless flying (amongst others).
The UK military has its own equivalent of the Director of Public Prosecutions/CPS (the Director of Service Prosecutions), its own court system (Court Martial), its own judges and legal professionals (Judge Advocate General), its own police force (Royal Military Police) and its own prison system (Military Corrective Training Centre).
One key difference between military and civilian courts is that juries aren’t used at court martials. Instead of a jury, there’s a selection of several commissioned officers and warrant officers called a board.
Senior military officers can deal with low-level offences themselves (summary hearings).
Until 2006, there were separate laws governing discipline and military law for each of the main service branches. These were brought together into a single law: the Armed Forces Act.
International Law & The Military
Some elements of military law cross into international law (the so-called “laws of war”).
Some treaties ban or limit certain weapons – such as chemical weapons – which have been looked at previously. Treaties have also (in principle) banned or limited the use of anti-personnel land mines and cluster bombs; in practice, they’re still used.
It’s highly likely that once there’s a conclusion to the Ukraine War, limitations will be brought in on the use of drones or autonomous weapons.
Perhaps the most well-known element of international law relating to warfare is the Geneva Conventions. Introduced gradually through the late 19th and early 20th centuries, they consist of four separate treaties governing the treatment of prisoners of war and non-combatants/civilians. Three protocols extending these treaties were added from the 1970s onwards.
Attacking civilians and civilian infrastructure is, under international law, a war crime. Though, as we’ve seen time and time again, it doesn’t stop hostile states and terrorist groups from targeting them.
Several countries – including the United States, Russia, Israel and Turkey – have withdrawn or not ratified protocols protecting civilians and non-combatants2.
People accused of war crimes and successfully arrested (very few are) are normally put on trial at the International Criminal Court (ICC) in The Hague, Netherlands.
Military Justice & Independence
Immediately following independence, the Armed Forces Act would continue to remain in force in Wales (due to the common law system).
Within the first few years of independence, it’s likely Wales would need to establish its own military justice system. This could be either through rewriting the Armed Forces Act, or as an entirely new law (similar to New Zealand’s Armed Forces Discipline Act, for example).
Any new or revised law could include a single unified Military Code of Conduct.
At present, the different branches of the UK military have different leadership and personnel codes. The British Army has a Leadership Code, while the Royal Navy has the Queen’s Regulations (drafted in 2019; any redraft would presumably be called King’s Regulations).
We would have an equivalent of the Judge Advocate General’s office (or another name) and probably a single military court or tribunal. They would also provide legal services to military personnel.
We would also need a military police force or equivalent (led by a Provost General, or alike) – but this is likely to be small.
As the Welsh military is likely to be small, we probably wouldn’t need a dedicated military prison. The practical option would be to set aside a secure unit on an existing military base for corrective training (short sentences).
As occurs now, any military personnel convicted of serious offences – and handed long sentences – would be dishonourably discharged and sent to civilian prisons.
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Armed Forces Act 2006, Part 1
Geneva Convention, Protocol 1 (1977)
No AI tools were used to draft this post.
