At the time of the monarchy In the French Army they are corporal punishments but death penalties. All those are discretionary sanctions left to the high ranking officers.
With the Revolution things change. The death penalty is liberally used by the court of justice. Most dereliction of duty is considered as threatening the newly born Republic so assimilated to treason.
Things change with Napoléon and the empire. The essential crimes are now pillage, desertion, surrender. In order to discipline the soldiers those military tribunals are organised with the power to judge and immediately execute the culprits.
On August 4th 1857 under Napoleon the III nephew of Napoleon I now emperor of the French since 1852 a code of military justice is created. This code organises in a legal way a scale of sanctions from fines to the death penalty for all military infractions. It will be up dated in 1875. The absence of attenuating circumstances for desertion, rebellion, insubordination, rioting, spying, treason in the code article 213,218,223,238 will be liberally used during world war one to sentence to death any guilty military personnel.
The May 18th 1875 law reduced the number of judges of the army courts from seven to five. This law also under certain circumstances can surpress the possibility of petition for reprieve. Any one sentenced to death is to be shot.
Evolution of military justice during WWI
1914 the slow abdication of civil powers to the military.
On the second of August 1914 the government using the law of August 9th 1849 declare a state of siege for the whole of France. Maintenance of law and order, police work pass now to the military. On this same day the government under the spell of Joffre and GHQ abdicate more of its prerogatives by creating by decree an army zone in which the Army has all powers even the administration of civil justice.
On August 10th Messimy a former professional officer now war minister gives even more power to the military by this note.” If you think that an immediate execution of the sentences is necessary for the maintenance of the discipline and the national security you won’t need to refer to me”
On August 17th the petition for reprieve is momentarily surpressed.
On the 1st September the new war minister Millerand limit the demand of presidential reprieve to extremely exceptional cases. Joffre has won. The Government having taken refuge during the Marne battle in Bordeaux has transferred most of its power to the military. The execution of the death sentence is no longer in the hands of the government. One of the reasons behind this abdication comes from the pre-war rise of antimilitarism at the end of the 19th century. The rate of desertion at mobilisation was expected to be about 13%. It was really only just above 1%. Primary teachers had done a very good job in indoctrinating patriotism into the young.
On September 3rd Joffre asked the war minister the authorisation to create a three member court martial in every regiment to immediately deal with all the crimes committed in the very act.; voluntary mutilation, pillage, desertion of post, insubordination. The decree was signed by the President of the Republique Pointcaré and the war minister Millerand. Sentences are to be carried out immediately, no petition for reprieve, no cassation. The representative for the defence in many cases has no knowledge of the law. He gets the file of the defendant at the last minute, in such a short space of time calling a witness for the defence can hardly be done, any real defence is almost impossible. Furthermore as judges are not independent; the officer having initiated the case can also be the president of the jury. The same procedure is used in cases of desertion, self- mutilation crime in most cases without witness. While only the ordinary Court Martials of the rear or permanent Court Martials of the national territory should be competent in those cases.
At that point in time the military judiciary system has three different court of justice. The permanent Court Martial existing even in peace time, the war time ordinary Court Martial and the special Court Martials created specifically by Joffre in every regiment.
Other measures in order to increase the discipline of the troops are taken. All prison sentences will be delayed until the end of the war. Sentences are made known to all fellow soldiers sometime even to the population of the village the soldier comes from in order to shame him.
These practises will only last for a short time. Many officers and generals becoming aware of the faults of the short Court Martial, prefer a justice more under their control with a better investigation. Through 1915 the number of special Court Martial will dwindle in favour of the ordinary Court Martial with five judges. The number of execution decreases.
Some of the reasons behind a more normal military justice:
- The revelations of judiciary errors by the press.
- By sharing the same harsh life at the front officers have a better understanding of their men resulting in greater clemency. Also shown by the prosecutors going for a lesser motive of indictment.
- The number of presidential pardon increases steadily 15% in October 14, 37,5 % in April 15, 70% in December 15.
On August 25th the war minister Millerand warns the jurors to be extra careful with cases of self-mutilation source of many judicial errors.
September 1st a decree from the interior ministry returns to mayors and prefects outside the army zone their powers of police and maintenance of law and order.
Number of executions Sept 14/October 15: 421
Number of executions Nov 15/ April 16: 42
The military justice shows greater respect for the rights of the accused resulting in fewer executions.
Number of executions Mai 16/ October 16: 83
1916 is the year the government is struggling to retrieve its prerogatives from Joffre, who grudgingly concedes some improvement. His struggle will be with his lack of success in his operations in Artois, Champagne and the Somme the reason for his eviction from the head of the French army toward the end of the year.
One of the main actors for a normalisation of power sharing and democratic society is the MP Paul Meunier.
Creation of a list of officers and men with legal back ground in civil life to represent the accused. The counsel for the defence is still chosen by the prosecutor but the accused can chose a second counsel from this list
On April 28th 1916. Compulsory attendance of a counsel, time to prepare the defence, extenuating circumstances, petition for reprieve, cassation, presidential grace, are restored.
8th June the right of appeal is reinstated for any one sentenced to death. Half of the prisoners having been sentenced to death in 1916 have been reprieved by the president. About 16% of judgements were annulled for defects of form. This is the end of the special Court Marshals.
3rd October Meunier’s Law no execution can take place during a petition for reprieve. The war minister confirmed it in April 1917.
12th November unusual note from Joffre “ Judges from the court martial must take into consideration the mental state of the accused … the prosecutor must order a psychiatric test.
Out side of the army zone “no execution will take place without the sentence being reviewed by the President of the Republic”
If in 1916 the death penalty is used less as a dissuasion, Their numbers still increase with the intensity of the battles. So three quarters of the executions take place during the Battle of Verdun and the Somme.
On the 27th May general Pétain commander in chief of the French army sent a note to the war minister explaining the problems consequence of the 27th April law in times of general indiscipline and mutiny. A month later June 10th the government accepts by his demand. A military justice of exception is allowed just for the period of unrest. Suspension of the right of appeal for mercy for all ranks sentenced to death for incitation to desertion, insubordination, rebellion.
On the July 13 1917 the mutiny having died down these exceptional measures are repealed. Number of executions
Nov 16/ Mai 17: 43; June 17/July 17: 34;
Even with the intensity of the 1918 fighting the number of executions stayed low. Is it the consequence of a better military justice respecting more rigorously the rights of the accused? The fear to get back to the judiciary mistakes of 1914/15? A different appraisal of the usefulness of the death penalty?
Perhaps the result of a combination of the three of them. Or also after July 1918 at last victory is in sight ?
August 17 / November 18: 45.
By Francois Wikart