Tuesday, December 5, 2017

Court-martial of a retiree

A Canadian court-martial has convicted a Navy commander of having an inappropriate relationship with a subordinate. Details here from the Times Colonist. The interesting thing is that the accused had been medically retired last year. Contemporary human rights norms disfavor the exercise of court-martial jurisdiction over retired military personnel.


  1. While it is true that contemporary human rights norms disfavour the exercise of court-martial jurisdiction over retired military personnel, consider this scenario. Corporal Jones, a member of the forces of a Troop-Contributing Country on a UN sponsored mission outside his own country, commits serious sexual offences against the local population. While his actions amount to criminal behaviour at home in his own country, its domestic law does not provide for extraterritorial criminal jurisdiction over civilians, and the terms of the Status of Forces Agreement preclude his prosecution in the state where the offences were committed. So if he is to be prosecuted at all it can only be by court-martial.
    Should Corporal Jones be able to avoid prosecution altogether by retiring?

    1. Don't let him retire. A foresighted TCC would create extraterritorial jurisdiction for major offenses to be on the safe side.

  2. To the extent that the offence committed by the military offender before retirement amounts to a criminal offence, I agree that the prosecution should take place before a civilian criminal court. However, where the offence is disciplinary in nature as it seems to be the case here looking at the charges laid, I believe the military courts should retain jurisdiction over the retiree, even if only to deter future similar behaviour. Otherwise disciplinary offences will remain unpunished thereby undermining military discipline.

  3. Those are both policy stances that can deal with the situation of Cpl Jones, but both create other difficulties. "Forced un-retirement" seems to run counter to the public policy of most jurisdictions where, absent a national emergency requiring conscription, military service is voluntary. And retaining such a military member (who is likely disaffected and probably ineffective as a soldier) on the public payroll for a lengthy period of time pending investigation, prosecution, and serving of a sentence does not seem like a wise allocation of resources. More importantly such a policy does little to foster the values underlying the human rights norm in issue here in any more than a symbolic sense. I for one would be grateful to hear about the experience of other jurisdictions that may withhold retirement or other forms of voluntary release from military service pending a court martial.

    I will address some of the difficulties of extraterritorial criminal jurisdiction in a future post after some time for reflection.


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