Chinese scholars studied wartime military justice system in 2022

Highly technical stuff that may not be your cup of tea today.

In February, as Xinhua reported, China’s legislature adopted “a decision on adjusting the application of some provisions of the Criminal Procedure Law for the military during wartime.” The decision enables the Central Military Commission to adjust such provisions as “jurisdiction, defense and representation, compulsory measures, case filings, investigation, prosecution, trial, and the implementation of sentences” in China’s Criminal Procedure Law for wartime.

But it's difficult to find what specific provisions are covered and how they could be adjusted. The Global Times said the decision “pave(d) the way for the Chinese military's enhanced combat capability” but, in my opinion, wasn’t the most convicing.

The South China Morning Post quoted Tong Zongjin, a respected legal scholar, as saying

the change was also “closely relevant” to ordinary citizens who are not servicemen or women – especially when a criminal case involves both military personnel and civilians.

In his article, Tong also noted that although the decision affects the military’s handling of criminal cases during wartime, its wording left “room for broad interpretation” of the term.

Tong said the term “wartime” was linked to a wider concept, and under China’s Criminal Law could also be defined as a time when the armed forces were “conducting combative operations”, under attack, enforcing martial law, or “responding to violent emergencies”.

He said that under the current regulations, the military could investigate and take legal action against civilians if they were involved in criminal cases that also involved military personnel.

Basically, Tong meant the decision could have implications for civilians outside strictly-defined wartimes. But Tong also apparently didn’t know what the “adjustment of the application of some provisions of the Criminal Procedure Law for the military during wartime” actually involved.

In a March article in Foreign Affairs, John Pomfret and Matthew Pottinger wrote

In February, the top deliberative body of the National People’s Congress adopted the Decision on Adjusting the Application of Certain Provisions of the [Chinese] Criminal Procedure Law to the Military During Wartime, which, according to the state-run People’s Daily, gives the Central Military Commission the power to adjust legal provisions, including “jurisdiction, defense and representation, compulsory measures, case filings, investigation, prosecution, trial, and the implementation of sentences.” Although it is impossible to predict how the decision will be used, it could become a weapon to target individuals who oppose a takeover of Taiwan. The PLA might also use it to claim legal jurisdiction over a potentially occupied territory, such as Taiwan. Or Beijing could use it to compel Chinese citizens to support its decisions during wartime.

Pekingnology published a response to that article and on this particular point,= we said

Upon research, we found that the China Forum of Military Law 2022 by the PLA National Defence University may offer some clues, where unidentified but apparent PLA scholars appealed for rule changes that were later adopted by China's legislature. The discussions - reasons behind those changes - are highly technical and we will publish something else.

Photo by Wesley Tingey on Unsplash

Today we are translating a report on the China Forum of Military Law 2022 by Legal Daily, the official newspaper of the Central Political and Legal Affairs Commission, held in June 2022.

I CANNOT CONCLUSIVELY link the content of the forum to the legislative decision. but the report did offer clues as to what legal scholars thought about China’s wartime military justice system half a year before the decision - and these clues are so far unknown in English.

国防大学举办2022年中国军事法学论坛 为战时军事司法制度构建提供理论指导

The People’s Liberation Army National Defence University held the 2022 China Military Law Forum to Provide Theoretical Guidance for Wartime Military Justice  System

With the theme "The Theory and Practice of the Wartime Military Justice System," the 2022 China Military Law Forum was recently held on the Xi'an campus of the Political College at The People’s Liberation Army National Defence University.

To improve the quality and efficacy of wartime military justice so as to leverage the role of wartime military justice in aiding combat preparedness, experts and scholars attending the forum discussed major theoretical and practical issues around the wartime military justice system, with a key focus on the characteristics of the military struggle and the practical needs of wartime military justice in the New Era. 

Examining the fundamental theories of wartime military justice

Experts and scholars explored in-depth fundamental theoretical issues related to wartime military justice, intending to provide theoretical and directional guidance for formulating the wartime military justice system.

The experts unanimously agreed that wartime military justice should prioritize maintaining military discipline over protecting the rights of military personnel, insofar as the rights of criminal suspects and defendants during litigations should be subject to certain restrictions. Nevertheless, under the premise of upholding military discipline, the legal rights of suspects and defendants should be protected to the greatest extent possible, and their fundamental litigation rights should not be reduced. The extent of the reduction for other (non-fundamental litigation) rights should be subject to the actual requirements of the wartime situation.

Through the lens of a comparative study, experts and scholars examined the organizing systems of wartime military justice by major foreign countries and proposed specific measures to improve the Chinese system based on the realistic needs of wartime military justice. For example, via a combination of accredited and itinerant modes of personnel deployment, China could set up a military justice body that could continuously render justice. China may also replenish the wartime military justice personnel by appointing wartime jurors and temporary prosecutors, and thus reasonably adjust the jurisdictional powers of wartime military justice bodies.

The jurisdiction of wartime military justice has distinct features that differ from those of ordinary military justice. The experts and scholars examined the wartime military criminal jurisdiction systems of foreign countries from the perspectives of jurisdictional space, jurisdictional targets, types of crimes under the jurisdiction, and division of trial jurisdiction and proposed advice for improving the jurisdiction in China's wartime military justice system. First, it is advised to expand the jurisdictional purview to include crimes committed by prisoners of war and enemy surrenderers under China's control. Second, China should extend geographical jurisdiction to include extraterritorial military control areas. Third, China should specify its special territorial jurisdiction by designating the jurisdictional body based on the mission's location for soldiers deployed across regions or engaging in cross-region maneuvers for combat missions.

Improving the procedural system for wartime military justice

To improve the ligation efficiency of wartime military litigation, there should be an emphasis on severe punishment, swift resolution, and simplified procedures. Experts and scholars believed that the urgency of wartime military operations necessitates that military justice bodies must enhance control measures over crimes committed in wars and rapidly investigate cases. First, it is necessary to prioritize timeliness on the battlefield, accelerate the pace of the investigation, simplify the procedures for case processing, and shorten processing cycles, specifically for criminal cases occurring under high-tech warfare conditions. Second, specifying the purview, method, and primary tasks for military procuratorial organs’ in-advance intervention is essential.

[Zichen’s Note: Under Chinese law, the prosecutors are typically involved in a criminal case only after the police wrapped up their investigation, but there are also exceptions when prosecutors are allowed under the law to intervene before the police concluded their investigation. I Googled about it but I’m not 100% sure how such an intervention is termed in English, so I made up the term in-advance intervention.]

Third, the jurisdiction of military police and military procuratorates in filing and investigating cases should be clearly defined, particularly for the reasonable division of jurisdiction for soldiers violating their duties, to maximize the efficiency of military judicial resources utilization.

Regarding the procedures of wartime military criminal trials, some experts believed that given that the Criminal Procedure Law had adjusted the scope of application for summary procedures and modified trial bodies, it’s preferable to improve the regulations of summary procedures for wartime military trials, expand its application spectrum, and clarify the conditions for applying both single-judge and collegiate panel trials. 

[Zichen’s Note: Criminal cases in Chinese courts are determined by professional judges, not juries. Most often it’s a three-judge panel, but simpler cases could be decided by a single judge.]

In addition, some experts recommended establishing expedited procedures for wartime military trials, specifying the scope, conditions, and procedures for use, and improving the efficiency of wartime military trials.

To address situations in which defendants defect, evade, or defect in wartime, making it impossible for them to attend the trial, experts suggested establishing the system of wartime trial in absentia to prevent lingering cases and promptly punish offenders, restoring legal relations that were damaged in wartime. On this basis, experts proposed extending the scope of trials in absentia for wartime criminal litigation and further specifying the conditions for their use. At the same time, relief and protection measures should be afforded to defendants to protect the rights of defendants in absentia to the greatest extent possible and give them some right to object to the results of trials in absentia.

The experts all agreed that for wartime probation to effectively protect military interests, improve litigation efficiency, and inspire morale, the procedures for the atonement of crimes in wartime should be refined, including specifying the initiation, review, ruling, announcement, and assessment procedures.

Strengthening legal supervision of wartime military justice

As a specialized legal supervisory body, the military procuratorial organ must perform legal supervisory duties by the law during wartime. Wartime supervision of military procuratorial organs over criminal litigation includes criminal case filing, investigation, trial, and sentence execution.

Experts and scholars discussed the features, rules, and methods of integrating wartime military procuratorial work into the combat system, punishing and preventing crimes, and conducting legal supervision. They believed that first, an in-advance intervention system should be established for wartime military procuratorial organs. Second, the wartime military procuratorial organ should transition from being based in different regions to "forward accompaniment" to efficiently and accurately conduct real-time legal supervision. Third, an effective wartime legal supervision system centered on the military procuratorial organ should be formed by unblocking channels for cooperation among the discipline inspection commission, military procuratorial organ, military court, and military police. The fourth one is to explore the system of public interest litigation procedures in wartime.

The experts also suggested that to reasonably allocate military procuratorial resources and improve the efficiency of wartime military legal supervision, the scope of application of deferred prosecution during wartime should be further expanded, and the application conditions should be clarified. They also advised introducing the military commander's advice to establish a system and procedure for supervision and inspection, differentiate legal consequences, and refine handling mechanisms. Additionally, the system of non-prosecution during wartime should be improved by further expanding the scope of its application, and a supervisory mechanism should be established for decisions made by the military procuratorial organ not to prosecute. (Enditem)