Thursday, October 6, 2016

For your bookshelf: Military Justice in the Modern Age

Cambridge University Press has just published an ambitious collection of essays titled Military Justice in the Modern Age. The book, which is an outgrowth of a symposium held at Melbourne Law School in 2011, was edited by two Australian scholars, Alison Duxbury and Matthew Groves, and includes insightful essays by contributors from around the world. The text runs to nearly 400 pages (plus indices). The hardback book sells for AU$190 (US$144).

There is a growing bookshelf of works that seek to give a global or at least a regional sense of developments in the dynamic field of military justice. Some of these are unfortunately out of date, such as Georg Nolte's massive European Military Law Systems. (At least it has been reprinted.) Others never gained much readership (I am thinking here of Evolving Military Justice, which Dwight Sullivan and I co-edited in 2002 for the Naval Institute Press). More often, books tend to be country-specific, which is hardly surprising.

The latest offering covers a range of timely thematic issues, such as how to deal with misbehaving civilian contractors (Rain Liivoja), the role of command (Vic Hansen), and summary trials (Aifheli Tshivhase). Another section presents country- or region-specific accounts (Christina Cerna on the Inter-American System, for example), which make particularly interesting reading. The ups-and-downs of reform efforts in Australia (Paul Cronan and John Tarrant) are also noteworthy. The book naturally is heavy on British-inflected systems, such as those in South Asia (U.C. Jha) as well as the mother country herself (Ann Lyon and Geoffrey Farmiloe), but also examines systems that have different historical roots, such as The Netherlands (Bas van Hoek). The Dutch system is of special interest given that country's effort to shift the trial of criminal conduct by military personnel into a civilian forum, albeit one with a significant military component.

The editors have not tried to advance a single party line. The contributing authors include thoughtful observers who in important respects subscribe to some version of the old British model that relies on non-lawyer commanders to make critical decisions such as who shall be prosecuted for what, who shall serve on the jury/panel, and what relief, if any, ought to be granted as a matter of post-trial clemency.

But should commanders still "own and operate" the military justice system, as the U.S. Army's Commander's Handbook puts it? Happily, one of the authors is the estimable Peter Rowe, who offers a full-throated challenge to that notion, observing (at 24):
It is not sufficient for a state to claim that its military courts operate within the structures established by national law if these courts do in fact, or are perceived tom lack competence, independence and impartiality. The court and its military members must be separated from the normal command structures. The military command must be removed from the decision to convene a military court, to prosecute, to appoint the court members and to assess the performance of court members (whether through remuneration levels or otherwise). (Footnotes omitted.)
Does the fact that a commander may be called to account for misconduct by subordinates compel commander-centric charging? Prof. Hansen and others have argued this, but it is clear that a commander will not be subject to command responsibility liability if all he or she can do is refer a case to an independent prosecutor, as opposed to being able to direct that particular subordinates be tried. The International Criminal Court decision in the case of Prosecutor v. Bemba Gombo (2016) indicates as much, as discussed here.

Peter Rowe also observes (at 24) that "[a] judge in a military court must be answerable solely to the civilian judicial structure and be seen to be separated structurally and socially from the military command system." His point about social separation is a subtle one than is rarely commented on in the literature. Just what is the effect on the independence and impartiality of the system when the judge is part of what is widely understood and accepted as a "separate society"? What if prosecutors and defense counsel also form part of that self-contained world? How serious a danger is coziness?

The role of command in military justice is certainly front and center in the United States, thanks in large measure to a dismaying level of sexual assault in the armed forces. Sen. Kirsten Gillibrand of New York has garnered substantial support for her proposal to shift the charging power away from commanders and into the hands of legally-trained prosecutors -- a shift that many other democratic countries have already made, without adverse effect on good order and discipline. Her efforts have not yet borne fruit, but she is certain to continue to press for change. While I personally believe the case has already been unanswerably made (by scholars such as Prof. Elizabeth L. Hillman) for the change she urges, this book should be consulted by anyone involved in that debate.

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