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Military justice (or military law) is the legal system and procedures governing members of the armed forces. Many country have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use civilian law. Legal issues unique to military justice include the preservation of good order and discipline, the legality of orders, and appropriate conduct for members of the military. Some states enable their military justice systems to deal with committed by their armed forces in some circumstances.
Military justice is distinct from martial law, which is the imposition of military authority on a civilian population as a substitute for civil authority, and is often declared in times of emergency, war, or civil unrest. Most countries restrict when and in what manner martial law may be declared and enforced.
A judge advocate general (JAG) has headed the Canadian military legal branch since before the First World War. The branch interprets the Canadian Forces' own internal rules and in the Code of Service Discipline, and also international and humanitarian laws and codes of war, such as the Geneva Conventions. 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, 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.
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.
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 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. Laki rajavartiolaitoksen hallinnosta (577/2007) (Act on the administration of Border Guard), § 31. Retrieved 2015-08-30.
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
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.
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 (, ), as all officers and NCOs in regular active service do, they will be sentenced to dismissal (, ) 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.
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.
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. Hallituksen esitys eduskunnalle laiksi sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa sekä eräiksi siihen liittyviksi laeiksi. HE 30/2013vp. Retrieved 2015-08-31.. 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.
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. 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, the 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). 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 . If a soldier is sentenced to jail for up to six months, the punishment is executed by the soldier's barracks 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.
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.
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. Manual of Service Law, Ministry of Defence, Joint Service Publication (JSP) 830, Volumes 1 – 3. Vol 1 and 2 Edition 1.0 2009 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.
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.
The UCMJ is federal law, found in Title 10 United States Code Chapter 47, and implemented by the Manual for Courts-Martial, an executive order issued by the President of the United States in his capacity as Commander-in-Chief of the United States Armed Forces. Court-martial convictions in the United States may be appealed through of appeal to the United States Court of Appeals for the Armed Forces (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 offenses covered by the UCMJ include those encompassed by "high crimes and misdemeanors" 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.
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