Military justice

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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.


All Commands of the Canadian Forces (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 (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. 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.




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.[2]:§ 4 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.[2]:§§1–2[3]:§§ 45:27–28 Enemy prisoners of war fall under Finnish military jurisdiction during their imprisonment.[3]:28

Military crimes

Like 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" (Finnish: palvelusrikos) which encompasses all voluntary and negligent disobedience of orders and regulations, "guard crime" (Finnish: vartiorikos), encompassing any misdeed during guarding duty, absence without leave (Finnish: luvaton poissaolo), desertion (Finnish: sotilaskarkuruus), diverse forms of disobedience against superiors, misuses of a position as superior and behaviour unsuitable for military person (Finnish: sotilaalle sopimaton käyttäytyminen). Other crimes are subject to usual civilian law.[3]:Ch. 45

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.[4]:§ 1 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.[3][5]:§ 2

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.[3]:§§45:10,20,23

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.[4]:§4

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.[4]:Ch. 4

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.[4]:§§35–39

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.[6]

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.[4]:§§46, 51 The range is[4]:§§3,12

  • 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 (Finnish: 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.[4]:§9

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.[4]:§ 48 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.[4]:Ch. 6 and §69

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.[5]:Ch. 3 and §3 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.[5]:§11

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 (Finnish: sotilasvirkamies), as all officers and NCOs in regular active service do, they will be sentenced to dismissal (Finnish: 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.[3]:§2:10

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.[3]:§6:1 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.[7] In the Defence Forces, the professional serviceman can also be administratively suspended for a period of one to six months.[8] 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.[9] 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.[10]

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.[3]:§2:14a


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.[11][12]

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.[13] Only some 250 military crimes in a year end up for handling in district courts.[14]:92 The number of appeals is vanishingly small. In year 2014, courts of appeals handled only a total of 5 military criminal cases.[14]:502



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.[15] Instead, suspects of crimes committed abroad are subject to the district attorney of the city of Potsdam.[16] The reason is that the operational headquarters (Einsatzführungskommando) is located there.







The military courts in India are coming under extreme stress with the establishment of Armed Forces Tribunal in 2007.[22] There is increasing voice in the country for the reform on the lines other liberal democracies are seeing in their military justice system.[23]

United Kingdom


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.[24] 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.




United States




See also


  1. ^ "The Whig Standard – Ontario, CA". Archived from the original on 9 July 2009. Retrieved 22 February 2011. 
  2. ^ a b Valtioneuvoston asetus sotilasrikoksia koskevien rangaistussäännösten soveltamisalasta (1153/2000). (Government decree on the application of military criminal statutes) Retrieved 2015-08-30. (in Finnish)
  3. ^ a b c d e f g h Rikoslaki (39/1889) (Penal code). Retrieved on 2015-08-30. (in Finnish)
  4. ^ a b c d e f g h i Laki sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa (255/2014). (Act on maintenance of military discipline and crime fighting in the Defence Forces)]. Retrieved 2015-08-30. (in Finnish)
  5. ^ a b c Sotilasoikeudenkäyntilaki (326/1983). Retrieved 2015-08-30. (in Finnish)
  6. ^ Laki rajavartiolaitoksen hallinnosta (577/2007) (Act on the administration of Border Guard), § 31. Retrieved 2015-08-30. (in Finnish)
  7. ^ Valtion virkamieslaki (750/1994). (State civil servants Act). §25, 33. Retrieved 2015-08-30. (in Finnish)
  8. ^ Laki puolustusvoimista (551/2007) (Act on the Defence Forces), §49.
  9. ^ Laki sotilaallisesta kriisinhallinnasta (211/2006). §10. Retrieved on 2015-08-30. (in Finnish). N.b Members of a Finnish contingent in a crisis management mission are not considered state military servants unless they hold that position in a domestically serving unit. (Most members do not, but will return to civilian employment after the tour of duty.) Instead, they have a special service relationship to the state, thus necessitating differentiation between state military servants and crisis management personnel.
  10. ^ Asevelvollisuuslaki (1438/2007) (Conscription Act). §§ 10 and 60. Retrieved 2015-08-30. (in Finnish)
  11. ^ Hallituksen esitys eduskunnalle laiksi rikoslain 2 luvun 14 a §:n ja 45 luvun muuttamisesta ja eräiksi siihen liittyviksi laeiksi (HE 17/1999vp). Retrieved 2015-08-31.(in Finnish).
    The claim may seem extraordinary. The exact quote from the Government's proposal for the amendment of Penal Code is Rangaistavan palvelusvelvollisuuden rikkomisen ala on ehdotetussa ja myös voimassa olevassa pykälässä laajempi kuin rangaistavan virkavelvollisuuden rikkomisen ala rikoslain 40 luvun 10 §:ssä, koska rangaistavuudelle ei ole asetettu vähäisyyskynnystä. Tämä on kuitenkin perusteltua, sillä käytäntö on osoittanut, että erityisesti sotilasyhteisössä mahdollisimman varhaisessa vaiheessa tapahtuva puuttuminen kuria ja järjestystä vaarantaviin suhteellisen lieviinkin ilmiöihin on tehokas keino vähentää vakavampien rikosten määrää.
    This translates as
    The extent of punishable disregard for duty is both in the proposed and existing legislation wider than that of punishable disregard for civil servant's duty as defined in the Section 10, Chapter 40 of the Penal Code, as there is no minimum threshold below which the disregard wpuld not be criminal. This is, nonetheless, well founded, for practical experience has demonstrated that especially in a military community, measures taken as early as possible to curtail phenomena endangering discipline and order, however slight they may seem, are an efficient way to minimize the number of more serious crimes.
  12. ^ Entisaikojen armeijaperinne tulkitaan nykyään simputukseksi – ”Ei missään nimessä sallittua” Kaleva 2015-07-06. Retrieved 2015-08-31. (in Finnish)
  13. ^ Hallituksen esitys eduskunnalle laiksi sotilaskurinpidosta ja rikostorjunnasta puolustusvoimissa sekä eräiksi siihen liittyviksi laeiksi. HE 30/2013vp. Retrieved 2015-08-31.(in Finnish).
  14. ^ a b Tuomioistuinten työtilastoja 2014 Archived 24 September 2015 at the Wayback Machine.. Finnish Ministry of Justice. Helsinki 2015. ISBN 978-952-259-449-5. Retrieved 2015-08-31. (in Finnish)
  15. ^ "Grundgesetz Artikel 96 II". Retrieved 2012-07-10. 
  16. ^ "Staatsanwaltschaft Potsdam". Retrieved 2012-07-10. 
  17. ^ "Wehrstrafgesetz". Retrieved 2012-07-10. 
  18. ^ "Wehrdisziplinarordnung". Retrieved 2012-07-10. 
  20. ^ "Soldier's law of Germany". Retrieved 2012-07-10. 
  21. ^ "". Retrieved 2012-07-10. 
  22. ^ "AFT". Retrieved 2012-07-10. 
  23. ^ "Corruption in Military Justice System". 22 January 1947. Retrieved 2012-07-10. [unreliable source?]
  24. ^ Manual of Service Law, Ministry of Defence, Joint Service Publication (JSP) 830, Volumes 1 – 3. Vol 1 and 2 Edition 1.0 2009 Archived 4 November 2009 at the Wayback Machine.
  26. ^ U.S. Const., Art. I, Sec. 8

Further reading

  • Bessner, Daniel; Lorber, Eric (October 2012). "Toward a Theory of Civil-Military Punishment". Armed Forces & Society. 38 (4): 649–668. doi:10.1177/0095327X12437685. 
  • Madsen, Chris (2008). Military Law and Operations. Aurora, Ontario: Canada Law Book.  Loose-leaf publication updated 1–2 times per year.

External links

  • Rule of Law in Armed Conflicts Project
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