Military justice
Military justice is the body of laws and procedures governing members of the armed forces. Many nation-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 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.
Canada
All Commands of the Canadian Forces are primarily governed by the National Defence Act. Section 12 of the NDA§ authorizes the governor in council's creation of the Queen's Regulations and Orders. 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. 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 applies.A judge advocate general 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.
Finland
Jurisdiction
The Finnish military law concerns the members of the Finnish Defence Forces 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. Enemy prisoners of war 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" which encompasses all voluntary and negligent disobedience of orders and regulations, "guard crime", encompassing any misdeed during guarding duty, absence without leave, desertion, diverse forms of disobedience against superiors, misuses of a position as superior and behaviour unsuitable for military person. 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. 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.
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 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 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
- 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
- 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.
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, 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.