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Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the
active-duty Active duty, in contrast to reserve duty, is a full-time occupation as part of a military force. In the United Kingdom and the Commonwealth of Nations, the equivalent term is active service. India The Indian Armed Forces are considered to be o ...
personnel of the armed forces of a country. In some
nation-states A nation state is a political unit where the state and nation are congruent. It is a more precise concept than " country", since a country does not need to have a predominant ethnic group. A nation, in the sense of a common ethnicity, m ...
, civil law and military law are distinct bodies of law, which respectively govern the conduct of civil society and the conduct of the armed forces; each body of law has specific judicial procedures to enforce the law. Among the legal questions unique to a system of military justice are the practical preservation of good order and discipline, command responsibility, the legality of orders, war-time observation of the code of conduct, and matters of legal precedence concerning civil or military jurisdiction over the civil offenses and the criminal offenses committed by active-duty military personnel. Military justice is different and distinct from
martial law Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to an emergency where civil forces are overwhelmed, or in an occupied territory. Use Martia ...
, which is the imposition of direct military authority upon a civilian population, in place of the civilian legal system of law that authorised the government to rule. Martial law is declared in times of emergency, civil unrest, and war, but its imposition can be restricted or even banned by civil law.


Canada

All Commands of the
Canadian Forces } The Canadian Armed Forces (CAF; french: Forces armées canadiennes, ''FAC'') are the unified military forces of Canada, including sea, land, and air elements referred to as the Royal Canadian Navy, Canadian Army, and Royal Canadian Air Force. ...
(CF) (that is, Royal Canadian Navy, Canadian Army, Royal Canadian Air Force, Canadian Joint Operations Command, and Canadian Special Operations Forces Command) are primarily governed by the
National Defence Act The ''National Defence Act'' (NDA; ; ''LDN'') is an Act of the Parliament of Canada, which is the primary enabling legislation for organizing and funding the military of Canada. The Act created the Department of National Defence, which merged th ...
(NDA). Section 12 of the NDA§ authorizes the governor in council's creation of the King's Regulations and Orders (KR&Os). The KR&Os are subordinate legislation having the force of law. Since the principle of '' delegatus non-potest delegare'' has not achieved rigid standing in Canada, the QR&Os authorize other military officials to generate orders having similar, but not equal, status. These instruments can be found in the Canadian Forces Administrative Orders and Defence Administrative Orders and Directives; they are used as direction for authorities within the CF to administer the day-to-day considerations of the Forces. For example, officer cadets attending military college are organized and subject to regulations more appropriate for their academic success than the enforcement of discipline, as might be expected of fully trained members. Volume IV, Appendix 6.1 of The Queen's Regulations and Orders for the Canadian Military Colleges (QR Canmilcols) applies. A judge advocate general (JAG) has headed the Canadian military legal branch since before the
First World War World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was List of wars and anthropogenic disasters by death toll, one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, ...
. The branch interprets the
Canadian Forces } The Canadian Armed Forces (CAF; french: Forces armées canadiennes, ''FAC'') are the unified military forces of Canada, including sea, land, and air elements referred to as the Royal Canadian Navy, Canadian Army, and Royal Canadian Air Force. ...
' own internal rules and code of discipline, and also international and humanitarian laws and codes of war, such as the
Geneva Convention upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conve ...
s. In Canadian practice, armed combat is a strictly regulated environment and legal officers are a crucial part of the planning that goes into operational decisions. The Military Law Centre on the grounds of
Royal Military College of Canada '') , established = 1876 , type = Military academy , chancellor = Anita Anand ('' la, ex officio, label=none'' as Defence Minister) , principal = Harry Kowal , head_label ...
, staffed with military lawyers, oversees the education of officers and troops in legal matters, trains military lawyers and advises Ottawa on matters of policy and doctrine. Legal education is integrated into the regular training that CF members undergo.


Finland


Jurisdiction

The Finnish military law concerns the members of the
Finnish Defence Forces The Finnish Defence Forces ( fi, Puolustusvoimat, sv, Försvarsmakten) are the military of Finland. The Finnish Defence Forces consist of the Finnish Army, the Finnish Navy and the Finnish Air Force. In wartime the Finnish Border Guard (whic ...
and the Finnish Border Guard. The military jurisdiction encompasses all military persons: conscripts, students training for a paid military position, females serving voluntarily and paid military personnel. However, military chaplains are outside the criminal military jurisdiction. Reservists belong to the military jurisdiction when activated voluntarily or involuntarily. The military jurisdiction starts from the moment when a person reports to duty or was liable to report to duty and lasts to the moment when the person has been discharged from service and, in case of conscripts and involuntarily activated reservists, has also left the military area. During wartime, also civilians serving in the Defence Forces or in civilian institutions that have been put under the direction of Defence Forces are under military jurisdiction.Valtioneuvoston asetus sotilasrikoksia koskevien rangaistussäännösten soveltamisalasta (1153/2000)
(Government decree on the application of military criminal statutes) Retrieved 2015-08-30.
Rikoslaki (39/1889)
(Penal code). Retrieved on 2015-08-30.
Enemy
prisoners of war A prisoner of war (POW) is a person who is held captive by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase "prisoner of war" dates back to 1610. Belligerents hold prisoners of w ...
fall under Finnish military jurisdiction during their imprisonment.


Military crimes

As in Germany, persons under military jurisdiction are under the usual civilian criminal law. The military criminal law, the 45th Chapter of the penal code, encompasses only the crimes which only military persons can commit. The most important of these are various types of "service crime" ( fi, palvelusrikos) which encompasses all voluntary and negligent disobedience of orders and regulations, "guard crime" ( fi, vartiorikos), encompassing any misdeed during guarding duty, absence without leave ( fi, luvaton poissaolo), desertion ( fi, sotilaskarkuruus), diverse forms of disobedience against superiors, misuses of a position as superior and behaviour unsuitable for military person ( fi, sotilaalle sopimaton käyttäytyminen). Other crimes are subject to usual civilian law. The military has a jurisdiction to investigate all military crimes proper, and also a number of other crimes that have been specifically listed as belonging to the military jurisdiction.Laki sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa (255/2014)
(Act on maintenance of military discipline and crime fighting in the Defence Forces)]. Retrieved 2015-08-30.
These include e.g. various types of murder, assault, theft, fraud, forgery, computer hacking and illegal divulging of classified information. However, they are only under military jurisdiction if the crime has been committed against another military person or against the Defence Forces.Sotilasoikeudenkäyntilaki (326/1983)
Retrieved 2015-08-30.
Unlike other crimes, the military crimes have separate sentence ranges for peace and wartime. During wartime, the crimes carry considerably larger sentence ranges and, if the crime causes the danger to the military unit, the sentence range is even harsher. For example, desertion carries, in the peacetime, a sentence of disciplinary punishment or up to one year in prison. During wartime, it carries a mandatory prison sentence of not more than four years, and, if the crime caused a particularly immediate danger to the unit, a mandatory minimum of one year, with a maximum sentence of ten years. When the military has jurisdiction over an ordinary crime, and the crime carries fine as a punishment, a disciplinary punishment may be given instead of fine both in summary proceedings and in the courts of law.


Investigation and summary discipline

When the crime falls under military jurisdiction, it is usually investigated by the serviceman's own unit. During such investigation, the serviceman's superior and the company commander have the power to detain the suspect. The battalion commander and military police officers have also the right to arrest the suspect and to conduct searches inside a military area. When the company commander or his superior feels that the crime is non-trivial and requires professional investigation, they may submit the issue to the Defence Command (Finland), Defence Command for investigation. The Defence Command has, in addition to the power of arrest, the power to use almost all other measures that are available to the Finnish police. If the Defence Command requires the use of the most invasive investigative measures (e.g. wiretaps, use of deep cover agents or computer intrusion) they may either request the police to conduct the measure or hand over the case to the police, as agreed between the investigator and the competent policeman. If the police considers it necessary, they may always take the case over, however. In the Border Guard, the Border Guard headquarters has the same internal law enforcement authority as the Defence Command in the Defence Forces, in addition to the regular law enforcement powers of the Border Guard. When the investigation is ready, the case is brought to the company commander or sergeant major or for his superior for consideration. After hearing the suspect, the disposing superior either frees the suspect from suspicion or gives an appropriate punishment within the range allowed to him. The range is * Company sergeant major: a private warning, up to three shifts of extra duty (only to conscripts and involuntarily activated reservists) * Company commander: a private warning, up to five shifts of extra duty, up to 10 days of confinement to the garrison, a public letter of reprimand ( fi, varoitus) * Battalion commander, all of above, and up to fifteen days of confinement to garrison * Brigade commander and his superiors: all of above and up to 30 disciplinary fines, one disciplinary fine being one fifth of the individual's daily gross income, or for conscripts, at least conscript's daily allowance. During peacetime, professional soldiers (with the exception of certain soldiers deployed to international missions) cannot be given other disciplinary punishment than a public letter of reprimand or a fine. If the superior does not feel that his powers allow him to give sufficient punishment, he will transfer the matter to the next higher superior. When the brigade commander determines that he cannot give sufficient punishment, he will transfer the matter to the public prosecutor who will commence prosecution in a civilian court. If the serviceman feels that the punishment was unjust, he can appeal to the brigade commander. The brigade commander's decision can be appealed to the district court within seven days. However, the appeals will not prevent the execution of the punishment.


Trial and appeals

The military crimes that go to court are handled by civilian courts that have military members. The district court has a learned civilian judge and two military members. One of them is an officer and the other a warrant officer, an NCO or a private. The court of appeals, that acts as the first instance for the prosecution of officers with at least major's rank, will have a military member who has at least a major's rank. The Supreme Court of Finland has two officers with at least colonel's rank as members when handling military crimes. These members are not named for a specific case but serve for two-year terms. The military members of the district court are selected by the court of appeals on the motion of the Commander of the Finnish Army. The military members of the Courts of Appeals are selected by the Ministry of Justice on motion of the Ministry of Defence. The military members of the Supreme Court are selected by the President of Finland. The sentences of the courts for military crimes are served in civilian prisons. An exception is formed by the disciplinary arrest, which may be sentenced for up to 30 days and is served in the detention facilities of the convict's garrison. When the military person holds a permanent or temporary paid position as a state military servant ( fi, sotilasvirkamies), as all officers and NCOs in regular active service do, they will be sentenced to dismissal ( fi, viraltapano) in addition to other punishments, if they are convicted of a military or a civilian crime for more than two years in prison and there are no special grounds for leniency. If the sentence is a life sentence, dismissal is mandatory. The court may also sentence dismissal with a shorter prison sentence if the crime shows that the person is unsuitable for state employment. If the military person is no longer in service, the summary disciplinary procedure cannot be used and the military has no longer any law enforcement power over the issue. In such cases, the former service member is investigated by the civilian police but the case is handled by a court with military members. In sentencing, disciplinary punishments cannot be used. Instead if a disciplinary punishment, an ordinary day-fine is sentenced. Typically, this is the case when a reservist is absent from an obligatory refresher exercise or a conscript is, after the commission of crime, declared unfit for duty for medical or security reasons.


Administrative punishment

In addition to judicial dismissal, the Defence Forces and the Border Guard have the option of administratively ending the military person's service if the person is in a paid position. This can happen even if no criminal charges are pressed. In the Defence Forces, the professional serviceman can also be administratively suspended for a period of one to six months. Similarly to state military servants, persons serving in a deployed force on an international mission may be administratively dismissed by the commander of the Finnish contingent. A conscript or a reservist cannot be dismissed but their service can be suspended by the brigade commander if they are suspected of having committed a crime which shows that they may endanger the safety of others. Following this, the person may be declared permanently unfit for duty by the Defence Forces regional office for safety and security reasons. As an exception to the principle that the military jurisdiction concerns only military persons, the penal code provides for the loss of military rank. Any person who is sentenced to prison for at least two years or to prison for any length of time for a crime of treasonous nature (specifically, crimes in chapters 11 and 12 of the Penal Code, e.g. espionage, high treason and related crimes), shall be sentenced to lose their military rank also. Thus, not only active military persons but also retired personnel, reservists and persons who are too old to belong to reserve may lose their military ranks for crimes of civilian nature.


Statistics

Military crimes are relatively common in Finland. Partly this is due to the fact that the bar of criminality has been set consciously low. The crime of absence without leave is committed by a soldier who is even a minute late, and a slightest wilful or negligent disregard for a standing order or a regulation fulfils the indicia of the "service crime". The legislator has purposefully given the military superiors the legal tools by which to maintain discipline by punishing even the slight appearances of bad conduct if they feel it necessary. On the other hand, handing out unofficial punishments is discouraged in the extreme. The number of military crimes is yearly somewhat above 4,000. An absolute majority of these are handled by summary measures, i.e. by a punishments given by the military superiors. Only some 250 military crimes in a year end up for handling in district courts.Tuomioistuinten työtilastoja 2014
. Finnish Ministry of Justice. Helsinki 2015. . Retrieved 2015-08-31.
The number of appeals is vanishingly small. In year 2014, courts of appeals handled only a total of 5 military criminal cases.


Germany

Members of any branch of the ''
Bundeswehr The ''Bundeswehr'' (, meaning literally: ''Federal Defence'') is the armed forces of the Federal Republic of Germany. The ''Bundeswehr'' is divided into a military part (armed forces or ''Streitkräfte'') and a civil part, the military part con ...
'', the German armed forces, are subject to the ordinary civil jurisdiction and unless otherwise stated all civil laws apply to soldiers as well. The German constitution allows the federal government in art. 96 II to create military courts under special circumstances: in times of war, outside Germany or on a German vessel, acting under a legal judge and only for members of the armed forces. In fact, no such laws have been enacted so far. Instead, suspects of crimes committed abroad are subject to the district attorney of the city of
Potsdam Potsdam () is the capital and, with around 183,000 inhabitants, largest city of the German state of Brandenburg. It is part of the Berlin/Brandenburg Metropolitan Region. Potsdam sits on the River Havel, a tributary of the Elbe, downstream of ...
. The reason is that the operational headquarters (''Einsatzführungskommando'') is located there. Nonetheless, there exist numerous acts that only concern soldiers describing their special status, their rights and duties. The military penal code (''Wehrstrafgesetz'') applies to soldiers by extending the civil penal code (''Strafgesetzbuch'') to crimes that can be only committed on military duty: General offenses (such as desertion, illegal use of weapons and more) and offenses that interfere with the military hierarchy (such as mutiny or abuse). Law enforcing inside any branch is done by the
military police Military police (MP) are law enforcement agencies connected with, or part of, the military of a state. In wartime operations, the military police may support the main fighting force with force protection, convoy security, screening, rear rec ...
, the ''
Feldjäger The ''Feldjäger'' () are Germany's military police. The term ''Feldjäger'', literally meaning field huntsmen or field Jäger, has a long tradition and dates back to the mid-17th century. History The first modern ''Feldjäger'' ...
''. When investigating, working for the attorney is equivalent to any German police in civil issues. In cases of both groups involved (on German terrain), regular and military police cooperate. In emergencies, the regular police is authorized to maintain order until the military police has arrived. Soldiers that violate military regulations may also receive penalties in form of Non-judicial punishment or in severe cases judicial punishments by a special type of court. These procedures are defined by the military discipline code (''Wehrdisziplinarordnung'', WDO). Note that the WDO describes how to proceed on offenses that are not (yet) covered by the military penal code but clearly against a military regulation. The head of the unit as immediate superior who acts as primary disciplinary master has the exclusive right to choose: non-judicial punishment (such as fines, curfews, arrests up to seven days), forwarding the decision to the next superior officer of the unit (arrest then can be extended up to 21 days) or calling the military service court (''Truppendienstgericht'') which has the power for further punishment (like degradation and shortening the salary up to five years). The judge of such a court is a civil one, two military officers are attending every case and act as consultants to the judge. In Germany, there are no federal or
military prison A military prison is a prison operated by a military. Military prisons are used variously to house prisoners of war, unlawful combatants, those whose freedom is deemed a national security risk by the military or national authorities, and member ...
s. If a soldier is sentenced to jail for up to six months, the punishment is executed by the soldier's
barracks Barracks are usually a group of long buildings built to house military personnel or laborers. The English word originates from the 17th century via French and Italian from an old Spanish word "barraca" ("soldier's tent"), but today barracks are u ...
administration. He will remain in arrest for the same time but continue serving in his unit on duty times unless the court has imposed further limits. Otherwise soldiers will be detained in civil state prisons. In the case of a soldier being sentenced to jail for one year or more (six months or more in case of bribery) he will be discharged from the armed forces.


India

India has its own Army Act, Navy Act and Air Force Act. These laws define the statutory provisions as applicable to men and women in uniform. All these three Acts are available on search from the official website. There are certain para military forces in India too who have laws akin to the ones applicable to defence services. This includes the
Border Security Force The Border Security Force (BSF) is India's border guarding organisation on its border with Pakistan and Bangladesh. It is one of the seven Central Armed Police Forces (CAPF) of India, and was raised in the wake of the 1965 war on 1 December 1 ...
Act, Coast Guard Act,
Indo-Tibetan Border Police The Indo-Tibetan Border Police (ITBP) is a border patrol organization of India deployed along its borders with Tibet Autonomous Region. It is one of the seven Central Armed Police Forces, established in 1962 in the aftermath of the Sino-Indi ...
Force Act and the Assam Rifles Act. All such Acts draw their inspiration from the Army Act. The military courts in India are coming under extreme stress with the establishment of Armed Forces Tribunal in 2007. There is increasing voice in the country for the reform on the lines other liberal democracies are seeing in their military justice system.


United Kingdom

The United Kingdom's arrangements for justice in the armed forces dates back many centuries to the Articles of War. In the late 19th Century this was added to the annual Army Act and embodied in the Naval Discipline Act. The Air Force Act was added in 1918. In 1966 a process of harmonisation started with the introduction of a quinquennial Armed Forces Act. The Armed Forces Act 2006 replaces the three separate service discipline acts and earlier Armed Forces Acts as the system of law under which the Armed Forces operate. In the previous decade the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(ECHR) had considerable impact on the administration of military justice, particularly the need for the independence of the courts martial system. Nevertheless, the underlying premise of the service justice system is that discipline is a matter for commanders. The Armed Forces Act 2006 completed the harmonisation of service law, and took full effect on 1 November 2009. Guidance about its application and related matters are provided in the Manual of Service Law. One motivating factor behind the changes in the legislation combining discipline acts across the armed forces is the trend towards tri-service operations and defence organisations. It deals with military offences, civil offences committed in some circumstances, offences by civilians associated with the armed forces or with the armed forces overseas (including family members), authority of Commanding Officer to deal with offences summarily, the Court Martial, the Service Civilian Court, custody and appeals. The Act also creates the post of the Director of Service Prosecutions. Summary dealing by a Commanding Officer (CO) is the central feature, this is acceptable within the ECHR because an accused always has the right to elect trial by the Court Martial. Most cases are dealt with summarily. Typically a CO is a Lieutenant Colonel or equivalent (NATO grade OF-4), but a CO may delegate some powers of summary dealing to a subordinate. The superior officer of a CO, a Higher Authority, may vary a CO's powers of summary dealing. An implication is that every person subject to service law must have a CO, and a CO must have a Higher Authority. The military judicial system is headed by the Judge Advocate General who is a civilian and part of the
Ministry of Justice A Ministry of Justice is a common type of government department that serves as a justice ministry. Lists of current ministries of justice Named "Ministry" * Ministry of Justice (Abkhazia) * Ministry of Justice (Afghanistan) * Ministry of Justi ...
. Administrative procedures enable a service man or woman to be discharged for unsatisfactory behaviour in a process similar to that in the private sector. They also allow a superior of any rank to award up to three extra duties or similar to a subordinate for minor infractions. Since being introduced this has significantly reduced the number of cases dealt with summarily.


United States

The
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
authorized the creation of a system of military justice. Article I, Section 8 permits the U.S. Congress to "make rules for the government and regulation of the land and naval forces." U.S. Const., Art. I, Sec. 8 Congress issued these rules first in 1806 as the Articles of War. Military justice during the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
was governed by the 1863
Lieber Code The Lieber Code of April 24, 1863, issued as General Orders No. 100, Adjutant General's Office, 1863, was an instruction signed by U.S. President Abraham Lincoln to the Union forces of the United States during the American Civil War that dictated ...
. The Articles of War were superseded in 1951 by the
Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of Military justice, military law in the United States. It was established by the United States Congress in accordance with the authority given by the United S ...
(UCMJ). The UCMJ is federal law, found in Title 10 United States Code Chapter 47, and implemented by the
Manual for Courts-Martial The ''Manual for Courts-Martial'' (''MCM'') is the official guide to the conduct of courts-martial in the United States military. An Executive Order of the President of the United States, the ''MCM'' details and expands on the military law estab ...
, an executive order issued by the President of the United States in his capacity as Commander-in-Chief of the
United States Armed Forces The United States Armed Forces are the military forces of the United States. The armed forces consists of six service branches: the Army, Marine Corps, Navy, Air Force, Space Force, and Coast Guard. The president of the United States is ...
. Court-martial convictions in the United States may be appealed through military courts of appeal to the
United States Court of Appeals for the Armed Forces The United States Court of Appeals for the Armed Forces (in case citations, C.A.A.F. or USCAAF) is an Article I court that exercises worldwide appellate jurisdiction over members of the United States Armed Forces on active duty and other perso ...
(CAAF), a federal appellate court consisting of five civilian judges appointed by the President of the United States. CAAF decisions are subject to direct review by the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
. The offenses covered by the UCMJ include those encompassed by "
high crimes and misdemeanors The charge of high crimes and misdemeanors covers allegations of misconduct by officials. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds th ...
" which covers officials generally, and includes perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. It also includes ordinary crimes, but perhaps with different standards of proof and punishment than for civilians, on the grounds that more is expected of military personnel by their oaths of office. Many of the terms used date back to the era during which the code was written.


See also

* Court-martial *
Laws of war The law of war is the component of international law that regulates the conditions for initiating war ('' jus ad bellum'') and the conduct of warring parties (''jus in bello''). Laws of war define sovereignty and nationhood, states and territ ...
*
Martial law Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to an emergency where civil forces are overwhelmed, or in an occupied territory. Use Martia ...


References


Further reading

* * Loose-leaf publication updated 1–2 times per year. *


External links


Rule of Law in Armed Conflicts Project
{{DEFAULTSORT:Military Justice Military supporting service occupations