An Axiom of Military Law : Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad

States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.

Docket books and fee book, 1791-1806

Consists of 7 notebooks and 1 account book. Notebooks list cases heard before the Massachusetts Court of Common Pleas for Middlesex and Worcester counties and the Massachusetts Supreme Judicial Court (March 1794-Sept. 1797; Sept. 1800-March 1802; June 1805-September 1806) and before the New Hampshire Court of Common Pleas for Hillsborough and Merrimack counties (March 1798-March 1805). The account book includes cases from Sept. 1791-July 1797.

Register of the Inferior Court, 1759-1763

Contains the Inferior Court's register of debtor's cases heard for the Mayor's Court for the following counties: Orange County, Suffolk County, Westchester County, Ulster County, Duchess County, and Queens County, in New York state. The register, kept by William Wickham, cites parties to the action, sentencing, court costs, and has a name index at the end.

Letter to Samuel Dexter, 13 November 1796

Letter regarding a bankruptcy case, later heard by the U.S. Supreme Court in 1797 (3 Dallas 369; Emory v. Greenough) and the upcoming national election.

Letter to John Worthington: 13 August 1791

Letter to Worhtington, a Springfield, Massachusetts lawyer, regarding tax on a meeting house near Pittsfield, Massachusetts and public support for ministers.

Capt. Weeks his answers to interogatorys on oath ... ca. 1738

Weeks (of Greenland, N.H.) was accused of concealing and embezzling items from his late son's estate. Document is signed: William Parker reg.

[ Order to the sheriff of Bucks County], 1731

An order to the sheriff of Bucks County, Pennsylvania, for twelve men to serve on a jury in the trial of John Borrowes, for an unspecified crime. Signed: Jeremiah Langhorne (justice of the peace); dated 14 June 1731. With seal. With this document (originally attached) is the list of jurors chosen to serve at the trial.

Precedents book of Massachusetts law, 1775

A commonplace book kept by Parsons outling various legal issues including getting a negro with child, slander, deceit, bills of exchange, debt,assault and battery, quantum meruit by a physician, ejectment, covenant, and liberty of the yard. Many of these topics include also forms of declaration.

Book of record for actions under $4.00. 1790-1799

Contains a record of cases which came before Egleston in his capacity as a justice of the peace for Berkshire County. The court was held in his home at Lenox.

An act for granting to His Majesty the sum of fifty-five thousand pounds, and for striking the same in bills of credit, in the manner herein after directed..., 1764

Contains an act for collection of taxes to pay the debt by establishing a set fee of fifteen shillings per head and household.

Proceedings in the Court of Chancery of Grenada: during the government of his excellency Lord Macartney, 1776-1778

Contains summaries of cases before the Chancery Court of Grenada arranged chronologically and preceded by an index.

An Act of Assembly of Barbadoes to regulate sales at outcry and the proceedings of persons executing the office of Provost Marshall General ofthe said island and their under officers, 1763

An Act of Assembly of Barbadoes to regulate sales at outcry and the proceedings of persons executing the office of Provost Marshall General of the said island and their under officers (leaf 1) ; A state of some matters relative to the office of Provost Marshall, and to the passing of this bill (leaf 9) ; Observations drawn up by Jonathan Blenman Esq. his Majestys Atty. Gen. in Barbadoes ... on the Act as it had been first brought in 1761 (leaf 13) ; and two leaves laid in ; Power of attorney, granted to Christopher Scandrett, signed by Francis Reynolds and his son Thomas (25 April 1766) ; Petition of Francis Reynolds to the Lords Commissioners of Trade and Plantations (1766).

Mathematical notebook attributed to Thaddeus Mason Harris, ca. 1787

Hardcover notebook containing handwritten transcriptions of rules, cases, and examples from 18th century mathematical texts. The author and purpose of the volume is unclear, though it has been connected with Thaddeus Mason Harris (Harvard AB 1787). Most of the entries include questions and related answers, suggesting the notebook was used as a manuscript textbook and workbook. The extracts appear to be copied from John Dean's " Practical arithmetic" (published in 1756 and 1761), Daniel Fenning's "The young algebraist's companion" (published in multiple editions beginning in 1750), and Martin Clare's "Youth's introduction to trade and business" (extracts first included in 1748 edition).

Illustrative cases on criminal law,

"The cases are in a large part reprinted from an earlier collection of cases compiled by the present editor."--Pref.