Military or army law is the legal body of principles and procedures that governs the conduct of army personnel. Every country has its own version of the law that is majorly distinct with the law of the land. Let us understand more with the help of this article.
In India, there are separate laws that govern the armed forces, such as The Army Act 1950, or The Air Force Act 1950 and The Indian Navy Act 1957. Separate legal regulations help in maintaining decorum, order and discipline, command responsibility and especially code of conduct, governing the relationship between superior and junior officers. “Military justice is different and distinct from martial law, which is the imposition of direct military authority upon a civilian population, in place of the civilian legal system of law that authorized the government to rule. Martial law is declared in times of emergency, civil unrest, and war, but its imposition can be restricted or even banned by civil law.”[1]
In Canada, National Defence Act governs all armed or Canadian Forces (CF). “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. 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 operations 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.”[2]
In the United States of America, The Uniform Code of Military Justice contains legal provisions that govern the conduct of the armed forces. “The President prescribes procedural rules and punishments for violations of crimes in the Manual for Courts-Martial (MCM). Investigations of serious offenses involving military personnel such as rape, indecent assault, drugs, or larceny are usually conducted by a criminal investigative agency, such as the Army’s Criminal Investigation Command (CID). For less serious offenses and most military-connected crimes, the authority rests with military or security police investigators. In cases involving very minor offenses, the immediate commander of the military member suspected will conduct or cause to be made a preliminary inquiry. Lawyers, known as judge advocates, are actively involved in advising commanders throughout the process. Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has several options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:
- The commander may choose to take no action. The circumstances surrounding an event may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime, that the only evidence is inadmissible, or the commander may decide that other valid reasons exist not to prosecute.
- The commander may initiate administrative action against a soldier. The commander might determine that the best disposition for this offense and this offender is to take administrative rather than punitive action. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.
- The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. Nonjudicial punishment hearings are non-adversarial. They are not a “mini trial” with questioning by opposing sides. The commander conducts the hearing. The service member may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the service member guilty, the commander must be convinced beyond a reasonable doubt that the service member committed the offense. The maximum punishment depends on the rank of the commander imposing punishment and the rank of the service member being punished. The service member has a right to appeal the imposing commander’s decision to the next higher commander.
- The commander may dispose of the offenses by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may choose from three potential levels of court-martial: summary, special, or general court-martial. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged. A summary court-martial is designed to dispose of minor offenses. Only enlisted soldiers may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him. A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.”[3]
The Constitution of the United States of America have essentials of military law and assists on forming a judiciary system within the armed forces. “Specifically, Article I, Section 8 of the Constitution grants Congress to power to make rules for the government and regulation of the land and naval forces. Then in 1806, Congress issued a new set of rules known as the Articles of War. Later, during the American Civil War, the 1863 Lieber Code governed military justice. Finally, in 1951 in the aftermath of World War II, Congress superseded the Articles of War and the Lieber Code with the Uniform Code of Military Justice. Thus, the UCMJ is indeed federal law and is located in Title 10 United States Code Chapter 47, and is employed by the Manual for Courts-Martial, which is an executive order from the President of the United States acting as the Commander-in-Chief of the United States Armed Forces. Furthermore, it is through the military courts and the United States Court of Appeals of the Armed Forces (CAAF) that court-martial conviction can be appealed. The CAAF is a federal appellate court that is made up of five civilian judges that the President appoints. Decisions from the CAAF can be subjected to direct review by the United States Supreme Court.”[4]
“Military law, the body of law concerned with the maintenance of discipline in the armed forces. Every state requires a code of laws and regulations for the raising, maintenance, and administration of its armed forces, all of which may be considered the field of military law. The term, however, is generally confined to disciplinary military law as defined above—i.e., that part of the code that aims at and sanctions the maintenance of discipline in the armed forces. In the past this was also known by the name of martial law, a term that now has the meaning of military enforcement of order upon a civil population either in occupied territory or in time of disorder. Members of armed forces do not cease under modern conditions to have duties as citizens and as human beings. All systems of military law thus must aim to ensure that the soldier is in no way enabled to escape the obligations of his country’s ordinary law or of international law as recognized in various conventions.”[5]
Who are subjected to the law?
- “The provisions of the Uniform Code of Military Justice apply to all active-duty members of all branches of the military, including the Army, Navy, Air Force, Marine Corps, and U.S. Coast Guard, as well as the NOAA (National Oceanic and Atmospheric Administration) Commissioned Officers Corps and the Public Health Service Commissioned Officers Corps. It also applies to any reserve or National Guard members who are activated for duty, as well as former active-duty members receiving military retirement benefits.”[6]
What are the other offences covered under the American Military law?
- “Though members of the armed forces can be charged with crimes applicable to non-military personnel, there are a number of violations that are unique to the military and which are frequently the basis of military prosecutions:
- Refusal to follow/comply with orders or for dereliction of duty (Article 92)
- Failure to show proper military respect, or respect for chain of command.
- Conduct unbecoming of an officer (Article 133)
- Desertion or absence without permission or leave (AWOL)
- Adultery or extramarital affairs (considered harmful to good discipline and order) (Article 134).” [7]
[1] Military justice - Wikipedia [2] Ibid. [3] Military Justice Overview - Victim and Witness Assistance Council (defense.gov) [4] Military Law | Wex | US Law | LII / Legal Information Institute (cornell.edu) [5] Military law | Britannica [6] Rules and Regulations in Military Law (getlegal.com) [7] Ibid.
