To examine the political role of military courts, we develop and employ a framework of “legal subordination,” defined as the degree to which military courts are subordinated to democratic, civilian control. The concept centers around who can be prosecuted in military courts (personal jurisdiction, or in personam) and for what crimes (subject matter jurisdiction, or rationae materiae). In this framework, we characterize military legal subordination as a range from full subordination to jurisdictional contestation to military overreach. In systems of full subordination, military courts either have been abolished completely or operate only for a narrow set of offenses necessary to maintain good order and discipline. There are no serious disputes between civilian and military courts regarding the jurisdiction of cases. Military overreach is characterized by a military justice system that is largely unchecked by civilian actors. In such systems, military courts try civilians for specific crimes against the state and typically retain jurisdiction over members of the armed forces for most crimes. Finally, in cases of jurisdictional contestation, military courts have jurisdiction over some civilian crimes committed by members of the military, including human rights violations, and there are often public disputes over who has the right to hear cases. Military courts, however, do not try civilians. . . .
Implicit in this scale is our view that full subordination is the goal to which democratic states should strive. Only under those systems is there a reasonable expectation that the military will remain subordinated to civilian leaders and that sufficient rule of law and respect for human rights will exist. Legal subordination of the military is an essential component of well-functioning, democratic societies. States can move along this continuum over time in two ways—rapidly and gradually—and in two directions—toward or away from full subordination.A useful table allots each military justice system to one of the authors' categories. A national system may, and many do, shift from one category to another over time. The book highlights some of the traditional pressure points, such as personal jurisdiction (does it try civilians?) and subject-matter jurisdiction (which offenses are tried where?). Obviously, given the sweep of this ambitious project, not every contemporary flashpoint--the role of the convening authority in the remaining non-compliant national systems springs to mind--can be included. Still, the authors are to be commended for an important contribution to the military justice literature. Those responsible for the day-to-day administration of military justice, as well as practitioners, judges, and legislators, will find it worthwhile and thought-provoking. Among the authors' conclusions:
Changes—positive and negative—in military systems after their initial establishment are the result of a dynamic interaction between three principal domestic actors—the government, the military, and high courts—in a decision-making nexus, and a variety of international and domestic influences that shape the political environment. Our model shows that international human rights courts, non-governmental organizations, international organizations, and external states have the ability to pressure the principal actors in a variety of ways, from giving domestic courts international rulings to use in their judgments to publishing reports that expose the abuses of military justice systems. Likewise, public sentiment and domestic civil society organizations can pressure government officials to take a stand on military justice. We find, however, that these efforts only matter at the margins and to be successful need to be sustained, sometimes for decades. We see the greatest successes when actors take a combined approach, pressuring government through multiple avenues to shape public sentiment in favor of reform and shift politicians’ incentives to establish clear control over military legal prerogatives.