Political Justice And Military Justice

" Indeed politics should be kept out of these tribunals, which are concerned with dispensation of military justice but the entire controversy about Fonseka’s trials is in it being claimed that they are basically political trials. We will refrain from commenting on the Courts Martial of Gen. Fonseka which are being dealt with by lawyers and politicians, but it does appear that quite often in these military trials politics has been a vital factor. "

by Gamini Weerakoon

(October 19, Colombo, Sri Lanka Guardian) A Colombo University don’s speech on Courts Martial to the Media Ministry received front page billing in the Daily News on Wednesday where he claimed that Courts Martial rulings are accepted all over the world while referring the Courts Martial held to try former Army Commander Gen. Sarath Fonseka. The lecturer, Prabath Mahanama Hewa, had said that politics should be differentiated from law in such Courts Martial.

Indeed politics should be kept out of these tribunals, which are concerned with dispensation of military justice but the entire controversy about Fonseka’s trials is in it being claimed that they are basically political trials. We will refrain from commenting on the Courts Martial of Gen. Fonseka which are being dealt with by lawyers and politicians, but it does appear that quite often in these military trials politics has been a vital factor. While most countries hold Courts Martial, at least two countries, Germany and France, do not during peace time. In Canada issues that are considered significant are presided over by officers from the independent office of a chief military judge.

Courts Martial of Josef Stalin

Courts Martial under dictators, autocrats and ‘liberators’ — most dictators and autocrats call themselves ‘liberators’ and even democrats — can result in horrendous crimes. Re-reading a book which had been with us for more than five decades: Khrushchev And Stalin’s Ghost by Bertram D. Wolfe we came cross, the following passage: ‘….. when Marshal Tukhachevsky and his seven top officers were executed in 1937, all the ‘Judges’ who were compelled to sign the protocol of a Court Martial, that was never held, automatically became suspect. If they had refused to sign they would have died. Having signed, they had to die too. Next all the High Command had to be executed for ‘prophylactic’ reasons. Then came the turn of sub-ordinates, who owed instruction, appointment or advancement to them and next their merits and services. Soon the whole officers’ corps was disquieted and in an ‘unhealthy mood’ a sickness requiring a radical cure by shooting. Tukhachevsky and his fellow officers were shot in June 1937.’

Author Wolfe notes: The ‘Court Martial’ was declared to have consisted of a presiding judge, two assistants and eight top generals. Nine of them perished within a year. The survivors were Budeyenny, Stalin’s crony, faction tool and drinking companion since the Civil War and Sharpenikov, an old Tsarist officer who had been a monarchist until the Bolshevik seizure of power and was employed by Stalin as his personal instructor in military science.

Dreyfus Affaire

One of the best known Courts Martial in history is the Dreyfus Affaire which shook the French political establishment in the 1890s and the 1900s.

A young artillery officer of Jewish descent in the French army, Alfred Dreyfus, was accused of passing military secrets to Germany. French intelligence claimed that someone was passing military secrets to the German Embassy in Paris. A strong anti-Jewish sentiment had prevailed in the French army at that time and that had resulted in senior officers suspecting Dreyfus though there was no clear evidence of him committing espionage.

He was court martialed, convicted of treason, sentenced to life imprisonment and sent to Devil’s Island in French Guiana to be kept in solitary confinement. After the Court Martial another French officer, Colonel Georges Picquart came across evidence implicating another officer, Ferdinand Walsin Esterhazy. Picquart passed on this information to his superior officers but the officers decided to protect Esterhazy and the original verdict was not changed. Documents were forged to ensure Dreyfus’s guilt and Picquart was sentenced to 60 days imprisonment and transferred to serve in Africa.

Picquart had passed his information to Dreyfus’s supporters and the case was taken up in the French senate. The Rightist government refused to accept Picquart’s evidence and Esterhazy was acquitted.

J’Accuse

Dreyfus was fortunate in French intellectuals taking up his case and the best known writer at that time, Emile Zola risked his life and career by writing the famous letter titled J’Accuse (I Accuse) which was published in the front page of the Paris daily L’Aurore. The newspaper which was owned also by two intellectuals, Ernest Vaughn and George Clemenceau published Zola’s letter as an open letter to the French President Felix Faure. Zola in his letter accused the highest levels of the French Army of obstruction of justice and anti-semitism by having Dreyfus wrongfully convicted to life imprisonment. It was a false accusation of espionage and a miscarriage of justice, he declared. This intellectual ferment caused deep fissures in French society between the reactionary army and Church and the liberal French.

Zola’s letter is said to be the turning point in the Dreyfus Affaire but Zola was tried for criminal libel in February 1898 and convicted. He fled to England but returned to Paris in time to see the government fall in 1906. Dreyfus was completely exonerated and reinstated in the army as a major and served the French Army as a Lt. Colonel in World War I.

French intellectuals of that time such as Emile Zola, Octave Mirabeau, Anatole France and Henry Poincare moving to the defence of Dreyfus is considered by French historians as a new manifestation of the power of intellectuals in shaping public opinion, the media and the state.
Lunatic fringe

While the Fonseka trials are holding public opinion captive, a lunatic fringe led by Wimal Weerawansa, the JVP renegade, staged a public demonstration before the US Embassy, demanding the release of the Cuban Five — five Cuban intelligence agents jailed by the US government for spying in the United States. They are said to have admitted that they were gathering information on Anti Castro exiles domiciled in and around Florida but were not spying on the US government.

We will refrain from commenting as we are not fully informed of the case. But at least it appears that they were tried by a civilian court and found guilty by a jury, not a Court Martial. The Courts Martial of Josef Stalin and Alfred Dreyfus reveal how ‘military justice’ can be exploited by despots without limitations placed in the exercise of their powers. American humourist Mark Twain observed that the term ‘military intelligence’ is an oxymoron. Can ‘military justice’ be placed in the same category?