Military Justice: will the arc continue to bend in a progressive direction?

The following comment by the Editor is cross-posted from the Oxford University Press blog:

Rarely has there been a time in which military justice has loomed so large, or in such diverse ways. Certainly at any given time there are likely to be one or two high profile cases around the world, but lately it has seemed that the subject is never long out of the public eye. Consider the following kinds of issues: 

• A Russian soldier stationed in Armenia murders a local family. Who should prosecute him for the murder, Russia or Armenia?  

• Peacekeepers in the Central African Republic prey on children for sexual favors. The UN has no judicial system to try such cases, and it needs to rely on troop contributing countries for military personnel. What if the troop contributing country is reluctant to investigate or prosecute? How aggressive can the UN realistically be in responding? Cancel the troop contingent’s participation in the peacekeeping mission? Insist on prosecution in open courts? Simply “name and shame”? 

Countries with little or no commitment to democratic values insist on prosecuting civilians in military courts, sometimes using “terrorism” as the justification. (Egypt is the primary example, but has no shortage of company. Pakistan’s supreme court in 2015 upheld a temporary constitutional amendment allowing military courts to try civilians for two years.) Is this ever justified? What should other countries say or do in response? 

Surprising levels of sex offenses by military personnel, often committed against other soldiers, have prompted serious concern by legislators in the United States, and a variety of strong remedial measures. This in turn has prompted fears that the pendulum has swung too far and that victims’ rights are being given higher priority than traditional rights of criminal defendants. How great a role should victims play in the criminal process? Should they have a veto over plea bargains, for example? 

As fallout of that same concern over sex offenses, attention has also come to focus on whether a shift in the basic structure of military justice in the United States is called for: should commanders continue to have the power to decide who is court-martialed for what and who will serve as military jurors, or should those critical powers be shifted to lawyers and jury administrators independent of the chain of command? 

The inexorable growth of social media and other kinds of widely available personal tech continues to present challenges to military tradition and, in the eyes of some, to “good order and discipline.” In a Facebook, crowdsourcing, or Pokemon era, can dissension in the ranks grow virally, and what, if anything, can military leaders do about it? 

What are the new challenges presented by the growing diversity of military forces — ethnically, religiously, politically, and sexually. In tradition-bound societies – and what society isn’t? – what is to be done when, for example, political leadership, responding to shifting social expectations, take on issues like the integration and welcoming of sexual minorities? And in an era of heightened political discourse, how tolerant may we be of dissenting opinion in the barracks, below decks, or in the wardroom, on political issues. Think: racial intolerance, white-supremacist views, ill- or unconcealed contempt for political leaders? Might civilian control of the armed forces be at risk? Realizing that much more information is classified than needs to be, what is the proper response where soldiers, civilian government employees, or members of the public flout the rules for the protection of national secrets? 

Novel issues of accountability present themselves with increasing frequency. Modern high-tech warfare presents challenges to national disciplinary and legal systems that are unlike those faced in earlier eras. Who is to blame – and liable to be punished criminally – when a drone strike hits a wedding, a funeral, or a schoolyard? Joint operations add further complications. What if one part of a military operation is necessarily reliant on personnel from another country for identification or verification of targets? 

As nation states continue to struggle with non-state entities such as ISIS that have only contempt for the law of armed conflict, will pressure increase to sweep mishaps and misconduct by one’s own forces under the rug, as if “the fog of war” meant all bets are off? Will electorates (and serving personnel) grow impatient with a persistent asymmetry in respect for law? 

Finally, will the application of human rights to military personnel and operations continue to play an increasing role, or will that impulse lose force? Especially if, as in the UK, adherence to human rights standards brings with it potentially serious financial consequences. Countries may either find themselves opting out of human rights regimes that prove to be inconvenient or unexpectedly costly or being more reluctant than they have in the past to join in theoretically deserving foreign missions of one kind or another. 

Plainly, the historic struggle for the rule of law both between and within armed forces is moving into a new battle space. What seemed tidy and appropriate half a century ago now seems contingent and debatable. National and international institutions are going to be tested repeatedly as this struggle plays out. In the process, we will learn whether the past few decades of progress reflect merely a temporary phase or whether, to borrow a phrase from Dr. Martin Luther King Jr., the arc will continue to bend in a progressive direction.