Discipline and Punishment

Abstract​
Armed forces must be disciplined, but two bodies of international law relating to military discipline seem to be in conflict. On the one hand, international humanitarian law emphasizes that armed forces should employ robust disciplinary measures to deter and address military misconduct. On the other hand, some international human rights law scholars recently singled out military disciplinary measures as insufficiently protective of soldiers from unfair treatment. Proponents of this new approach proposed a remedy for disciplinary unfairness: borrowing a practice already used by some national militaries, soldiers should have the right to "turn down" disciplinary proceedings and elect to have their cases heard in military criminal trials instead. This article critically examines four of the underlying assumptions of this new approach. I argue that interlinking disciplinary law with penal law through a turn-down right is a mistake, and that there is an enduring role for both disciplinary and penal sanctions in regulating the behavior of armed forces.

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