Today is the second day of the International Society for the Study of Military Law and the Law of War’s Rhodes Conference on Military Jurisdiction. It’s been a decade since the Society’s first such conference, and much of the conversation so far has focused on the changes those ten years have wrought and rising interest in military justice worldwide. In Europe in particular, the trend has been toward shrinking military jurisdiction in favor of increasing civilian capacity—through education, reform, and better communications technology—to enforce military justice.
Yesterday, accomplished speakers from the Belgian and French ministries of defence described the extent of efforts to not only limit, but nearly abolish, the jurisdiction of military courts. Reports from legal officers, jurists, and scholars described major shifts in military prosecutorial authorities, judicial review, and jurisdiction in nations including Australia, Cameroon, Canada, Ireland, Palestine, and Tunisia.
In response to this trend away from comprehensive military jurisdiction, members of the audience raised many questions, including whether discipline in the field can be maintained without a portable military justice system and whether a civilian bench can provide adequate oversight. Eugene R. Fidell, a longtime supporter of the Society and member of its Board, chaired a session on recent revisions in military justice and commented on the U.S. experience with civilian judicial review. He noted the often broad deference to the military practiced by the U.S. Supreme Court and suggested that justices without military experience were apparently more, not less, likely to defer to military decisions.
This morning’s sessions begin a few minutes, so I’ll close by noting the 9th circuit’s opinion vacating the district court’s opinion in the Log Cabin Republican challenge to “don’t ask/don’t tell” ends another chapter in civilian review of military action.