French Military Justice: The 2011 Reform and Peacetime Jurisdiction

French military justice has undergone a fundamental transformation with the reform of 2011, which abolished permanent military courts in peacetime and integrated military offences into the ordinary criminal justice system. The reform, introduced by the Law of 21 December 2011, maintained a specialised legal framework for military justice while eliminating the separate system of military courts that had existed since the Ancien Régime. The current system distinguishes between peacetime and wartime jurisdiction, with different rules applicable in each situation.

Historical Background

French military justice has its origins in the Ancien Régime, when the prévôts des maréchaux exercised jurisdiction over military personnel. The Revolution established a separate system of military courts (conseils de guerre), which were maintained by Napoleon and continued through the 19th and 20th centuries. The military courts were staffed by military officers and applied a separate code of military justice.

The military justice system was criticised for its lack of independence, its procedural informality, and its harsh penalties. The European Court of Human Rights found that French military courts violated the right to a fair trial under Article 6 of the European Convention, because they lacked the appearance of independence. The 2011 reform was adopted in response to these criticisms.

The Code de Justice Militaire

The Code de justice militaire (Code of Military Justice) governs the prosecution and trial of military offences. The Code was substantially revised by the 2011 reform. The current Code applies to: military personnel who commit offences defined by the Code; persons who commit offences against military property or military interests; and military personnel who commit common law offences in certain circumstances.

The Code defines the specific military offences, including: desertion, insubordination, abandonment of post, cowardice, and the disclosure of military secrets. The Code also defines the jurisdiction of the military courts during wartime and the rules of procedure for military trials.

Peacetime Jurisdiction

In peacetime, military offences are tried by the ordinary criminal courts. The Tribunal judiciaire has jurisdiction over most military offences, applying the ordinary rules of criminal procedure. The military-specific rules apply only to the definition of military offences and to certain procedural adaptations.

The abolition of permanent military courts in peacetime was the central element of the 2011 reform. The reform recognised that the ordinary criminal courts are capable of trying military offences fairly and efficiently. The reform also eliminated the perception that military justice was less independent and less rigorous than ordinary justice.

Wartime Jurisdiction

During wartime, the tribunaux aux armées (courts of the armed forces) may be established to try military offences. The military courts are composed of a president (a civilian magistrate) and four assessors (military officers). The military courts apply the Code de justice militaire and the ordinary rules of criminal procedure, adapted for the circumstances of war.

The military courts may try: military personnel for all offences; persons who commit offences against military interests; and persons who commit offences defined by the law of war. The military courts have jurisdiction over offences committed in the theatre of operations and over offences committed by members of the armed forces deployed abroad.

The Tribunaux aux Armées

The tribunaux aux armées (TAA) are specialised criminal courts that may be activated during wartime. The TAA are composed of a president who is a civilian magistrate and four military assessors. The TAA apply the Code de justice militaire and the Code de procédure pénale. The decisions of the TAA may be appealed to the Cour de cassation.

The TAA are not permanent courts. They are established by decree when the circumstances require. The TAA were activated for the trials of members of the armed forces in external operations. The TAA also have jurisdiction over persons who commit offences against the French armed forces during wartime.

Offences Under the Code de Justice Militaire

The Code de justice militaire defines a range of military-specific offences. Desertion (désertion) is the unauthorised absence from the armed forces with the intention of not returning. Insubordination (insubordination) is the refusal to obey a lawful order. Abandonment of post (abandon de poste) is the unauthorised departure from a military position.

The Code also defines offences relating to: the disclosure of military secrets; the destruction of military property; the misuse of military equipment; and the conduct of military operations. The penalties for military offences may include imprisonment, demotion, expulsion from the armed forces, and the loss of military rank.

Procedural Adaptations

The trial of military offences in the ordinary criminal courts is subject to certain procedural adaptations. The military authorities may participate in the investigation and prosecution of military offences. The military police (gendarmerie) exercises criminal investigation powers in military matters.

The ministère public (public prosecutor) in military cases is represented by the commissaire du Gouvernement, who is a military officer with legal training. The commissaire du Gouvernement exercises the functions of the prosecutor in military cases and represents the interests of the armed forces.

European Convention on Human Rights

The European Court of Human Rights has significantly influenced the reform of French military justice. The Court held in several cases that the former military courts violated Article 6 of the European Convention because they were not independent and impartial. The lack of independence arose from the fact that the military judges were subordinate to the military hierarchy and could be subject to pressure from their superiors.

The 2011 reform was designed to bring French military justice into compliance with the Convention. The abolition of permanent military courts in peacetime eliminated the most significant source of concern. The civilian magistrates who preside over the military courts are independent and are subject to the same safeguards as other French judges.

Discipline and Criminal Justice

French military law distinguishes between disciplinary sanctions and criminal penalties. The military authorities may impose disciplinary sanctions for minor violations of military discipline, including: warnings, confinement to barracks, and the loss of privileges. The disciplinary sanctions are not criminal penalties and are not subject to the same procedural safeguards.

The distinction between disciplinary and criminal matters is important. The military authorities may not impose criminal penalties through disciplinary proceedings. If the conduct is sufficiently serious to constitute a criminal offence, the matter must be referred to the ordinary criminal courts. The European Court of Human Rights has held that certain disciplinary sanctions that involve a significant deprivation of liberty may constitute criminal penalties for the purposes of Article 6.

Contemporary Challenges

The French military justice system continues to evolve. The integration of military offences into the ordinary criminal justice system has been generally successful, but challenges remain. The military authorities must maintain effective discipline while respecting the rights of military personnel. The balance between military effectiveness and individual rights continues to be debated.