Military law
Encyclopedia
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.
(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.
, 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 . Instead, suspects of crimes committed abroad are subject to the district attorney of the city of Potsdam
. 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).
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.
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 http://indiacode.nic.in/.
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
'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. 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.
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." 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
.
Armed forces
The armed forces of a country are its government-sponsored defense, fighting forces, and organizations. They exist to further the foreign and domestic policies of their governing body, and to defend that body and the nation it represents from external aggressors. In some countries paramilitary...
. 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
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the 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 ForcesCanadian Forces
The Canadian Forces , officially the Canadian Armed Forces , are the unified armed forces of Canada, as constituted by the National Defence Act, which states: "The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed 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
National Defence Act
The National Defence Act is the primary enabling legislation for organizing and funding Canada's military....
(NDA). Section 12 of the NDA authorizes the governor in council's creation of the Queen's Regulations and Orders
Queen's Regulations and Orders
The Queen's Regulations and Orders for the Canadian Forces are regulations having the force of law for the governance of the Canadian Forces...
(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
Canadian Forces Administrative Orders
Canadian Forces Administrative Orders are issued to "supplement and amplify the Queen's Regulations and Orders ...[they] contain administrative policy, procedures and information of continuing effect." ...
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
Judge Advocate General (Canada)
The Office of the Judge Advocate General for the Canadian Forces provides legal advice to commanders at bases and wings, provides lawyers who defend accused persons at courts martial, teaches courses to other CF members or advises a commanding officer in an operational theatre to uphold the ethical...
(JAG) has headed the Canadian military legal branch since before the First World War. The branch interprets the Canadian Forces
Canadian Forces
The Canadian Forces , officially the Canadian Armed Forces , are the unified armed forces of Canada, as constituted by the National Defence Act, which states: "The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed 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
Royal Military College of Canada
The Royal Military College of Canada, RMC, or RMCC , is the military academy of the Canadian Forces, and is a degree-granting university. RMC was established in 1876. RMC is the only federal institution in Canada with degree granting powers...
, staffed with military lawyers, oversees the education of officers and troops in legal matters, trains military lawyers and advises Ottawa on matters of policy
Policy
A policy is typically described as a principle or rule to guide decisions and achieve rational outcome. The term is not normally used to denote what is actually done, this is normally referred to as either procedure or protocol...
and doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
. Legal education is integrated into the regular training that CF members undergo.
Germany
Members of any branch of the BundeswehrBundeswehr
The Bundeswehr consists of the unified armed forces of Germany and their civil administration and procurement authorities...
, 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 . Instead, suspects of crimes committed abroad are subject to the district attorney of the city of Potsdam
Potsdam
Potsdam is the capital city of the German federal state of Brandenburg and part of the Berlin/Brandenburg Metropolitan Region. It is situated on the River Havel, southwest of Berlin city centre....
. 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).
Law enforcing inside any branch is done by the military police
Military police
Military police are police organisations connected with, or part of, the military of a state. The word can have different meanings in different countries, and may refer to:...
, the Feldjäger
Feldjäger
For the German Military Police in WWII see: Feldjaegerkorps and FeldgendarmerieIn presence Feldjäger is the name of military police of the Bundeswehr, Germany's armed forces. The term Feldjäger, literally meaning field huntsmen or field Jäger, has a long tradition and dates back to the mid-17th...
. When investigating, working for the attorney is equivalent to any German police
Law enforcement in Germany
Law enforcement in Germany is constitutionally vested solely with the states, which is one of the main features of the German political system. Therefore, unlike France, Italy, the United States, Canada or many other countries, Germany has no federal police force comparable to the Italian...
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
Command and obedience in the Bundeswehr
The principle of command and obedience in the Bundeswehr , along with the concept of "citizens in uniform" , was central to the 1953 idea of "leadership development and civic education"...
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.
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 http://indiacode.nic.in/.
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
The United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
's arrangements for justice in the armed forces dates back many centuries to their Articles of War
Articles of War
The Articles of War are a set of regulations drawn up to govern the conduct of a country's military and naval forces. The phrase was first used in 1637 in Robert Monro's His expedition with the worthy Scots regiment called Mac-keyes regiment etc. and can be used to refer to military law in general...
. 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
Armed Forces Act 2006
The Armed Forces Act 2006 is an Act of the Parliament of the United Kingdom.It came into force on 31 October 2009. It replaces the three separate Service Discipline Acts as the system of military law under which the British Armed Forces operate...
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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(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. 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
Offences against military law in the United Kingdom
The main Offences against military law in the United Kingdom are set out in the Armed Forces Act 2006.The offences fall into two main categories, discipline offences and criminal conduct offences...
, civil offences committed in some circumstances, offences by civilians associated with the armed forces or with the armed forces overseas
Civilian subject to service discipline
A civilian subject to service discipline is someone who, whilst not a member of the British Armed Forces, is nevertheless subject to some aspects of British military law and the military justice system.- Categories :...
(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
Ministry of Justice (United Kingdom)
The Ministry of Justice is a ministerial department of the UK Government headed by the Secretary of State for Justice and Lord Chancellor, who is responsible for improvements to the justice system so that it better serves the public...
.
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
The United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
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." Congress issued these rules first in 1806 as the Articles of War. Military justice during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
was governed by the 1863 Lieber Code
Lieber Code
The Lieber Code of April 24, 1863, also known as Instructions for the Government of Armies of the United States in the Field, General Order № 100, or Lieber Instructions, was an instruction signed by President Abraham Lincoln to the Union Forces of the United States during the American Civil War...
. The Articles of War were super-ceded in 1951 by the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
(UCMJ).
The UCMJ is federal law, found in Title 10 United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
Chapter 47, and implemented by the Manual for Courts-Martial
Manual for Courts-Martial
The Manual for Courts-Martial 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 in the Uniform Code of Military Justice...
, an executive order issued by the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
in his capacity as Commander-in-Chief
Commander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...
of the United States armed forces
United States armed forces
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
.