LAW FROM THE CENTER

Right now, all over the world, military justice systems are under attack, with a culture of change unseen since the institution of the Uniform Code of Military Justice (UCMJ) after World War II. Today, General Cosgrove of the Australian Defence Forces fights for the autonomy of his country's court-martial system under extreme pressure from Parliament to civilianize the system. In Britain, news comes today of the first civilian naval criminal trial in the history of the British Navy, mandated after the EU Court of Human Rights declared the British court-martial system illegal. The EU Court found that the system did not constitute a "fair and impartial tribunal" as required by the European Declaration of Human Rights, since commanders were able to pick panel (jury) members, choose charges, and decide on pretrial matters. Five years later, the changes are being implemented.

According to Eugene R. Fidell, today's news is part of a larger turn-of-the-millenium

period of ferment that is both rare and broad. In country after country, dramatic change either has occurred in the recent past or is under active consideration. Nothing like this has happened since the years just after World War II.

He cites dramatic changes that have been implemented in the UK, Canada, South Africa, India, and Mexico, as part of a global movement for change in military justice systems modeled on the British Articles of War (which includes, with substantial reforms, the US system). He concludes that military leaders need to carefully study international systems of military justice in order to better understand our own. Eugene R. Fidell, A Worldwide Perspective of Change in Military Justice, 48 A. F. L. REV. 195.

Why does this matter? The same supposed flaws that exist or existed in the military justice systems of Australia, Canada, Britain, etc.--lack of prosecutorial discretion by trained legal personnel, the picking of panel members by commanders, lack of tenure for trial judges--all can be found in the system based on our Uniform Code of Military Justice. Fidell seems to think that our Armed Forces are immune from this culture of change. He notes the fact that the Supreme Court has written about the importance of an independent military justice system because our military is a "specialized society separate from civilian society." Parker v. Levy, 417 US 733, 743 (1974), in Fidell. However, our Uniform Code of Military Justice is statutory; just because it is constitutional does not mean that it is immune from Congressional tinkering. After every major conflict this nation has engaged in, the soldiers who have come home have demanded reforms of varying levels in the court martial system. As more and more people serve in the active and reserve components, and more troops become subject to the UCMJ, echoes from this global culture of change may work their way into the congressional halls. Indeed, in five to ten years, we may find a system of military justice that looks more like Law & Order than JAG.