Military justice

This article is about legal jurisdiction over military personnel. For military jurisdiction over civilians, see martial law.

"Military commission" redirects here. For the commissioning of an officer, see Officer (armed forces). For the history of military tribunals set up in the United States, see Military tribunals in the United States. For the military commissions set up at the Guantanamo Bay detention facility, see Guantanamo military commissions.

Military justice is the body of laws and procedures governing members of the armed forces. Many states 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 judicial systems. 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 civil offenses committed by their armed forces in some circumstances.

Military justice is distinct from the imposition of military authority on a civilian population as a substitute for civil authority. This condition is generally termed martial law, 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.

Canada

All Commands of the Canadian Forces (CF) (that is, Royal Canadian Navy, Canadian Army, Royal Canadian Air Force, Canadian Operational Support Command, Canadian Expeditionary Force Command, Canadian Special Operations Forces Command, and Canada Command) are primarily governed by the National Defence Act (NDA). Section 12 of the NDA authorizes the governor in council's creation of the Queen's Regulations and Orders (QR&Os). The QR&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.

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 code of 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.^[1]

Germany

Members of any branch of the Bundeswehr, 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 of 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 ^[2]. Instead, suspects of crimes committed abroad are subject to the district attorney of the city of Potsdam ^[3]. The reason is that the operational headquarter (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).^[4]

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). Note: 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 7 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. ^[5]

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 [1]. 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 Act, Coast Guard Act, Indo Tibetan Police 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.AFT There is increasing voice in the country for the reform on the lines liberal democracies are seeing in their military justice system.Corruption in Military Justice System

United Kingdom

Main article: Military Courts of the United Kingdom

Main article: Offences against military law in the United Kingdom

The United Kingdom's arrangements for justice in the armed forces dates back many centuries to their Articles of War. In the late 19th Century this were 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 (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 completes the harmonisation of service law, and takes full effect on 1 November 2009. Guidance about its application and related matters are provided in the Manual of Service Law.^[6] 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 women 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

See also: Judge Advocate General's Corps

The United States Constitution 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."^[7] Congress issued these rules first in 1806 as the Articles of War. Military justice during the American Civil War was governed by the 1863 Lieber Code. The Articles of War were super-ceded in 1951 by the Uniform Code of Military Justice (UCMJ).

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.

See also

• Court-martial
• Laws of war
• Martial law

References

1. ^ The Whig Standard - Ontario, CA
2. ^ Grundgesetz Artikel 96 II
3. ^ Staatsanwaltschaft Potsdam
4. ^ Wehrstrafgesetz
5. ^ Wehrdisziplinarordnung
6. ^ Manual of Service Law, Ministry of Defence, Joint Service Publication (JSP) 830 , Volumes 1 - 3. Vol 1 and 2 Edition 1.0 2009
7. ^ U.S. Const., Art. I, Sec. 8

Chris Madsen, Military Law and Operations. loose-leaf publication updated 1-2 times per year. Aurora, Ontario: Canada Law Book, 2008. [2]

David A. Schlueter, Military Justice: Practice and Procedure 7th ed. (2008)

Rule of Law in Armed Conflicts Project