**A World-Wide Perspective On**

# Change In Military Justice

[Eugene R. Fidell]{.smallcaps}[^1]

Military justice is going through a 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. There is no way of
telling how long this phase will last, but there can be no question that
it exists and is worthy of our careful atten­tion.

Examples of the ferment I have in mind include the enactment of major
reforms both in the United Kingdom,[^2] hastened by a series of cases in
the Europe­an Court of Human Rights,[^3] and in Canada,[^4] where
deci­sions of the Supreme Court and Court Martial Appeal Court have
played a major role.[^5] In South Africa, new military justice
legisla­tion[^6] was required when the gov­ernment conceded that the
former system, dating to the era of apart­heid, was unconsti­tutional.[^7]
Austra­lia has been considering the need for reform in light of a report
prepared by Mr. Justice Abadee of the Supreme Court of New South
Wales.[^8] In India, the Law Commis­sion has recommended creation of an
Armed Forces Appellate Tribunal.[^9] In Mexico, disaffected person­nel
have taken to the streets to demand a fresh look at the military justice
system.[^10] In the United States, the Ameri­can Bar Associa­tion\'s
Standing Committee on Armed Forces Law has under consideration a
proposal to recom­mend legisla­tion creating a commission to study
military justice in connection with the fiftieth anniversary of
enactment of the Uniform Code of Military Justice.[^11] Beyond the
legisla­tive devel­opments, a spate of individual cases in many countries
has attracted broad public attention to what is ordinarily quite an
obscure and over­looked field.

In addition to these legal developments, there is a growing awareness on
the part of mili­tary justice specialists of the need for collabo­rative
efforts and exchange of infor­mation across national boundaries.

Why is any of this noteworthy? There are two reasons. First, the mere
fact that we are even aware of global military justice developments is
remarkable because, even though "Breaker Mor­ant," "Billy Budd," and "The
Caine Mutiny" resonate across borders, little informa­tion on military
justice developments has historical­ly flowed across national borders,
and when it has, it has done so at a snail\'s pace. Even then, it has
been of interest only to a few pro­fes­sionals (almost exclusively serving
officers or ministerial officials). Second, a number of themes emerge
from the new flood of information and activity. Both of these factors
have cultur­al, public policy, and institution­al implica­tions that
deserve our attention.

It is an unfortunate but undeniable fact that histori­cally, American
military justice jurisprudence has shown little interest in foreign
military justice developments. The bar and the bench can share
responsibility for argu­ments not made, or, if made, disregarded.

To be sure, there have long been foreign students at the Judge Advocate
General's School of the Army, and that institution\'s estimable
*Military Law Review* has run articles about foreign systems.[^12] Such
articles have become infre­quent, a notable exception being the valuable
recent contribution by the Judge Advocate General of the United Kingdom,
Judge James W. Rant,[^13] whose work has also been published by the
United States Air Force Judge Advocate General School.[^14]

But as far as the courts are concerned, the American military justice
system pays precious little attention to develop­ments in other
coun­tries\' systems. To its credit, in *United States v. Graf*,[^15] the
United States Court of Military Appeals at least took the time to
address the Cana­dian jurispru­dence on military judicial indepen­dence,
although ultimately it concluded that "our application of these
principles to the military justice system of the United States and its
military judges does not necessarily lead to the same result."[^16] The
court went on to test the United States military justice structure
against the Canadian Supreme Court\'s *Généreux* analytical
framework.[^17] When Aviation Storekeeper Airman Graf sought review in
the Supreme Court of the United States on the ground that due process
requires fixed terms of office for military judges, his petition for a
writ of certiorari cited Canadian and Soviet arrange­ments,[^18] and
argued that

\[i\]f nations with such divergent legal traditions and military
postures as these can accom\[m­\]od­ate fixed terms for military judges,
it is difficult to treat seriously the notion that there is anything
inherent in military affairs that precludes them for this country\'s
soldier- and sailor-judg­es.[^19]

In the end, the Supreme Court denied certio­rari,[^20] and although it
granted review on the terms-of-office issue in the companion case of
*Weiss v. United States*,[^21] no Justice thought the evolving modern
foreign experience worth mentioning.

Foreign military justice arrangements were also invited to the attention
of the Supreme Court in *Solorio v. United States*,[^22] where the Court
overturned the require­ment of *O\'Callahan v. Park­er*[^23] that military
offenses be service-connected. One amicus argued that "the experi­ence of
other countries teaches that a service connection require­ment is
workable and appropri­ate."[^24] "The purpose of presenting these foreign
materi­als," the brief stated

is to suggest, not that these are mat­ters to be decided by a "show of
hands" among the legal systems of the world, but rather that the
ap­proach adopted by this Court a generation ago \[in *O\'Callahan*\] is
well within the experi­ence of other nations, including some with
sub­stantial defense estab­lish­ments, and, from a compara­tive stand­point,
anything but a "sport in the law." (citations omitted) [^25]

The Court deemed this line of argument unworthy of comment.

I hasten to add that resort to foreign legal develop­ments generally is
not without controver­sy in the American judicial system,[^26] so no one
should imagine that military justice is being singled out in this
regard. For example, in *Printz v. United States*,[^27] which concerned
the power of Congress to compel state and local police to help enforce
federal gun control legislation, Justice Breyer (in a dissent in which
Justice Stevens joined) referred to the federal systems of Switzerland,
Germany and the European Union, and commented:

Of course, we are interpreting our own Constitution, not those of other
nations, and there may be rele­vant political and structural differ­ences
between their systems and our own. *Cf*. The Federalist, No. 20, pp.
134-138 (C. Rossiter ed. 1961) (J. Madison and A. Hamilton) (rejecting
certain aspects of Europe­an federal­ism). But their experience may
nonetheless cast an empirical light on the consequences of differ­ent
solutions to a com­mon legal prob­lem---in this case the problem of
reconciling central authority with the need to preserve the
liberty-en­hancing autonomy of a smaller constit­uent governmental entity.
*Cf. id*., No. 42, p. 268 (J. Madison) (look­ing to experiences of
European countries); id., No. 43, pp. 275, 276 (J. Madison) (same).[^28]

In reply, Justice Scalia, writing for the majority, observed:

Justice Breyer\'s dissent would have us consider the benefits that other
countries, and the European Union, believe they have derived from
federal systems that are different from ours. We think such comparative
analysis inappropriate to the task of interpreting a constitution,
though it was of course quite relevant to the task of writing one.[^29]

Judging by Justice Ginsburg\'s later Cardozo Lecture to the Association
of the Bar of the City of New York, she is plainly in the Breyer
camp.[^30] Speaking of affirmative action and human rights, she cited
comparative develop­ments in India, Germany, and the European Union, and
argued that "\[e\]xpe­rience in one nation or region may in­spire or
inform other nations or regions in this area, as generally holds true
for human rights initiatives." In her view,

\[t\]he same readiness to look beyond one\'s own shores has not marked
the decisions of the court on which I serve. The United States Supreme
Court has mentioned the Universal Declara­tion of Human Rights a spare
five times, and only twice in a majority decision. The most recent
citation appeared twenty-eight years ago, in a dissenting opinion by
Justice Mar­shall. Nor does the U.S. Supreme Court invoke the laws or
decisions of other nations with any frequency .

In my view, comparative analysis em­phati­cally *is* relevant to the task
of interpret­ing consti­tutions and en­forcing human rights. We are the
los­ers if we neglect what others can tell us about endeavors to
eradicate bias against wom­en, minorities, and other disad­vantaged
groups. For irrational prejudice and rank discrimination are infectious
in our world. In this real­ity, as well as the determina­tion to counter
it, we all share.[^31]

Do the kinds of issues that have emerged in the field of military
justice rise to the level of the human rights issues about which Justice
Ginsburg spoke with such obvious conviction? Some, at least, of those
who concern themselves with capital punish­ment or the role of women in
the military[^32] would likely say so. I suggest, howev­er, that even
aspects of military justice that have not engaged our soci­ety or our
legal system as deeply would fall within the sphere where comparative
informa­tion can be instruc­tive.

Some countries are less jurisprudentially xenopho­bic than others.[^33]
Foreign legal institu­tions and policy judg­ments cannot simply be
trans­planted.[^34] As Chief Judge Posner warns, "\[w\]e must be cautious
. . . about basing policy on the practices of other nations."[^35] But
even cautious lawmakers and regula­tion-issuers can still cast their net
broadly, seeking useful insight *wherever* it can be found. In an
earlier age, this, indeed, was one of the corner­stones of the
jurispru­dence of the United States Court of Military Ap­peals.[^36] I
have argued, and perhaps a little grumpily continue to be­lieve, that the
court\'s early decla­ra­tion of doctrinal inde­pendence had unanticipat­ed
adverse conse­quences (espe­cially in conjunc­tion with other institu­tional
weaknesses in the American military justice sys­tem).[^37] Nonetheless,
the experi­ence of the last several years suggests that there will be
occa­sions when the Court of Appeals for the Armed Forces can gain
valuable perspective from foreign military justice develop­ments and that
doing so would not give rise to the kind of institutional concerns that,
to my mind, made the "Brosman Doctri­ne\"[^38] ques­tion­able. In any
event, those concerns in no way bear on Legislative and Executive Branch
decision-making. Whether or not the Court of Appeals for the Armed
Forces should from time to time take foreign developments into account,
nothing prevents Congress and the Executive Branch, whose opportuni­ties
to influence the administra­tion of military justice far exceed those of
the court, from informing themselves of and drawing appropri­ate lessons
from such developments as they exercise their high respon­si­bilities.

It is hard to imagine a clearer case of preaching to the choir than to
argue the virtues of comparative studies to an interna­tional audience
such as the Inter-University Seminar on Armed Forces and Society.
Nonetheless, because there is reason to fear that the value of such
studies may not be as fully accepted as one might hope within the
military legal community, a few words on the point may be in order.

Assimilators of esoterica need no greater reason to concern themselves
with foreign mili­tary justice develop­ments, which make for scin­tillating
conversation (or at least so some mavens believe). More seriously, this
kind of learning is of value not simply for its own sake or to better
understand events elsewhere. It is of practical value be­cause, ­by
showing that what we do is not necessarily the only way to do things, it
helps us to understand our own system and to conduct what ought to be a
periodic, if not continual, conscious process of reevalu­ation so that we
can be sure our system reflects the best thinking in order to achieve
our national goals. The same impulse that leads us to view the States\'
role as laboratories for testing new ideas as part of the genius of the
Ameri­can federal sys­tem,[^39] or to view the various branches of the
service in something of the same light,[^40] ought to cause us to
welcome any oppor­tu­nity to know and potentially learn from the
experience of other democratic countries in the adminis­tration of
military justice. That experi­ence should be discounted where the other
country\'s political or value system, strategic role, or other
distin­guish­ing features suggest a poor fit. But that discount can only
be applied intelligently if we have first considered the pertinent data.

There are ample reasons for lawyers to pay attention to foreign law.
Justice O\'Connor has cited three: the need to apply foreign law in
domestic courts, the ability to borrow beneficial ideas, and the
enhancement of cross-border cooperation.[^41] The practi­cal arguments
for a global perspective are obvious in areas such as commercial
transac­tions, securities regula­tion or intellec­tual proper­ty.[^42] I
submit that the current era of joint and United Nations-sponsored
humanitarian and peace­keeping military opera­tions in widely separated
parts of the planet argues equally strongly for a global ap­proach, not
one of edicts, but rather one in which common themes are identified and
viewed as a source of strength and as a stimulus to creative thinking on
the national level. Indeed, in what other contemporary area of law could
international perspectives be *more* welcome than in the field of
military justice? Given the extraordi­narily delicate situa­tions the
military faces around the world, anything that fosters foreign
confidence in the integri­ty and intellectual rigor of our system eases
the task of preserving the primacy of United States military
jurisdic­tion over deployed person­nel. Even merely acknowledging foreign
approaches is a way to show respect for other nations in an area where
sources of friction may be all too real.

I have suggested that a variety of common themes emerge from a review of
foreign military justice develop­ments. Let me offer some examples. Then
let us consider the implica­tions if my hypothesis is correct.

*Judicial Independence*. One country after anoth­er has in recent times
focused on issues of inde­pendence and imparti­ality in the administration
of military justice. Canada[^43] and the United States Army,[^44] for
example, have instituted fixed terms of office for military judges.

*Unlawful Command Influence*. This has been justly described as the
"mortal enemy of mili­tary justice'' in American military
jurispru­dence.[^45] Concerns over the excessive involve­ment of command
have surfaced in the United Kingdom and were central to the hammer blows
applied by the European Court of Human Rights. Even on a subtler level,
uneasiness over command influence is a transnational phenomenon, as
suggested by a case in which the New Zealand Court Martial Appeal Court
declined to establish a hard-and-fast rule, but cautioned that it would
have been prudent for the convening authority not to be present at
trial.[^46] On the other hand, an Austra­lian judge recogni­zed a national
characteris­tic in observ­ing, in a case involving the required sequence
of voting by court-martial members, that once upon a time "there was
greater defer­ence to authority than is typically the case in Australia
tod­ay."[^47] "Croco­dile Dundee" aficio­na­dos take note.[^48]

*Fraternization*. Many countries\' military justice systems have
recently had to address issues relating to social relations across the
officer/enlisted divide or between officer or enlisted pay grades.

*Adultery*. Various systems have wrestled with the status of adultery as
a military crime. Should it be prosecut­ed in isolation? Military juries
may be reluctant to convict on such charg­es. Stay tuned.

*Capital Punishment*. Canada has abolished the military death
penalty;[^49] in the United States, where the last military execution
occurred in 1961,[^50] capital cases are inexorably moving towards the
President\'s desk.[^51]

*Prosecution by Court-Martial of Offenses Under Civilian Criminal Law*.
May conduct that is an of­fense under civilian law be tried by
court-mar­tial?[^52] Must there be a nexus to military service in order
for an offense known to civilian crimi­nal law to be prosecuted by
court-martial? The United States is far from the only democra­cy to have
addressed this issue.[^53]

*Summary Discipline*. In what circumstances, if any, should person­nel be
permitted to refuse summary (nonjudi­cial) punishment? This question was
at issue in *United States v. Edwards*[^54] and *Robinson v.
Dalt­on*.[^55] In prepar­ing the latter case as counsel for Com­mander
Robin­son, it proved illuminating to explore the right to reject mast (or
"captain\'s table") under other military justice systems.[^56]

*Jurisdiction over Dependents*. We resolved this, at least until
now,[^57] in *Reid v. Covert*.[^58] In *R. v. Mar­tin*,[^59] the United
Kingdom, unencumbered by a writ­ten constitu­tion that could trump a
statute, came out the other way.

*Good Military Character as a Defense*. A recent law review article has
penetratingly explored this defense under American military law.[^60]
One would expect such a defense to be accepted in other systems that
share the same historical roots as ours.[^61] Perhaps an enterprising
law review editor or faculty member or student at one of the service law
schools will find the comparative law question worth pursuing.

*Civilian Review of Courts-Martial*. Should civil­ian courts review
courts-martial, directly, collaterally, or not at all?[^62] Should there
be a special­ized appellate court for military cases, and if so, should
its member­ship include military person­nel (including nonlawyers), as the
recent South African legislation and current Indian proposal
pro­vide?[^63] Should its member­ship rotate from a larger body of
judg­es?[^64] United States law re­quires only that the judges of the
Court of Ap­peals for the Armed Forces be drawn from civilian life and
not have served on active duty for 20 years.[^65]

We should not be surprised that so many themes are familiar to the
common law democra­cies. After all, these countries\' military justice
systems can be traced to the British Articles of War.[^66] Like
Darwin\'s finches,[^67] they evolved differ­ent­ly, and the process by
which they came to differ from one another may lead to useful insights
into the development of law and legal institutions. For present
purposes, howev­er, it suffices to observe that they spring from a common
source, further reason, rooted in histo­ry, to look past our borders.

Now let me shift gears to American legal doctrine for a moment. It is a
commonplace that military law stands separate and distinct from the
remainder of American law because military society is a "specialized
society separate from civilian society." The Supreme Court has told us
this numer­ous times,[^68] and

"the concept . . . has had extensive historical recognition."[^69]
Wheth­er you agree with the propo­si­tion or not, and a few authors have
attempted to call it into question,[^70] it is interest­ing to consider
that it may find confir­mation in the existence of the common themes I
have previous­ly identi­fied. Arguably, the very distinctiveness that
takes military justice out of the main­stream of national law places it
in a broader, but clearly interna­tional, way of thinking about how to
maintain good order and discipline within organized military forces.
That is, if mili­tary society is sepa­rate from the rest of American
society, do the charac­ter­is­tics that make it separate also manifest
them­selves in military society in other coun­tries. If so, does that
suggest an *interna­tional* military society, or a collec­tion of military
societies that have nearly as much in common with one another as each
does with its larger national society? Given this, can the Supreme
Court\'s concept that the military is a separate society be reconciled
with its apparent unwilling­ness to consider foreign military legal
develop­ments?

Assuming there is merit to the notion that we ought to be more attentive
to current military justice develop­ments overseas, what is to be done?
Happi­ly, the answers here are fairly obvious, and not particularly
difficult to achieve.

First, the flow of information should be encouraged. Retired Commander
Philip D. Cave of the United States Navy and Colonel Anthony S. Paphiti
of the British Army have rendered exceptional service to the global
military legal community through their extraor­dinary,
internationally-oriented military justice websites.[^71]

Second, all who are responsible on a national level for the
administration of military justice should strive to identify and
promptly upload or disseminate in "hard copy" all major deci­sions,
statutes and regulations in the area.

Third, military justice experts, including judges,[^72] civilian
practitio­ners and academics, should meet more often. One such meeting
was convened by the National Insti­tute of Military Justice, a United
States-based nonprof­it organiza­tion, in London in 1998.[^73] A follow-on
meeting will proba­bly be held next year, venue to be determined. The
London meeting drew attendance from countries in the common law
tradition. In time, the constit­u­ency should be expanded to countries
who­se mili­tary justice systems are not descended from the British model.
It is also to be hoped that non-Commonwealth observers will in time be
invited to attend the periodic meetings of the Common­wealth Associa­tion
of Armed Forces Lawyers.

Fourth, and without in any way detracting from either the excellent
foreign works on military law that have become avail­able[^74] or the
critical importance of the Inter­net as a means of dissemi­nating
information, there is a need for a "hard copy" *International Military
Legal Materials*, by analogy to the Ameri­can Society of Interna­tional
Law\'s long-running *Interna­tional Legal Materials*. *The Military Law
and Law of War Review*, published by the Inter­nation­al Society for
Military Law and Law of War, has included articles on national
systems[^75] and synopses of decisions,[^76] but a more systematic and
timely process is called for.

There is also a clear need for military justice teaching materi­als that
include a broad range of comparative law documents. One such set of
materials was developed for use at the London conference referred to
above.[^77] More work needs to be done so that the materials can be kept
current and made available broadly and at reason­able cost. This, in
turn, will facilitate civil­ian instruction in military law, which must
be a high priority in any democra­cy.[^78]

To achieve these goals requires a new orien­tation and a heightened level
of activity by government, academia, and the bar. Funding will be a
major challenge because govern­ment support may come with undesir­able
strings, founda­tion grant ­makers and law school curriculum committees
may not immedi­ately recognize the importance of the effort, and
publishers cannot be expected to undertake ventures that hold out little
promise of profit.

## Conclusion

It will be a worthy achievement if, consis­tent with the military justice
legislation passed by Congress and the regula­tions prescribed by the
Presi­dent, our generation can foster bi-directional creative interaction
between military justice and general American jurisprudence. Similarly,
and subject to the same constraints, those responsible for the framing
and administra­tion of American military justice legislation, should,
with the encour­agement of the bar and the academy, be alert to
opportunities for the same kind of interac­tion with our "sepa­rate
society" counter­parts globally. If they are, there is every reason to
hope that both realms will be enriched.

[^1]: ^\*^ *B.A., Queens College, 1965, LL.B., Harvard Law School, 1968.
    Mr. Fidell is head of the Litigation Depart­ment and the Military
    Practice Group of the Washington, D.C. firm of Feldesman, Tucker,
    Leifer, Fidell & Bank LLP, and president of the National Institute
    of Military Justice.* This paper was presented at the 1999 biennial
    meeting of the Inter-University Seminar on Armed Forces and Society,
    held in Baltimore, Maryland. The author is grateful to Elizabeth
    Lutes Hillman, Philip D. Cave, John B. Holt, Guy Cournoyer, and Gary
    D. Solis for helpful comments on drafts of this paper.

[^2]: Armed Forces Act 1996, ch. 46 (Eng.).

[^3]: *Findlay v. United Kingdom*, 24 E.H.R.R. 221 (1997) (British
    Army); *Coyne v. United Kingdom*, \_\_E.H.R.R.\_\_, Reports 1997-V
    (British Royal Air Force) (available at
    <http://www.echr.coe.int/eng/Judgments.htm>) (copy on file with the
    Air Force Law Review); *see also Lane v. United Kingdom*,
    ResIntDH(99)361 Application No. 27347/95 - Lane against the United
    Kingdom (Comm. of Ministers, Council of Eur. June 9, 1999) (interim
    resolution) (Royal Navy) (available at
    <http://www.coe.fr/cm/site2/ref/dynamic/resolutions_hr.asp>) (copy
    on file with the Air Force Law Review)[.]{.smallcaps} For a
    perceptive summary of the *Findlay* fallout through 1998 see Ann
    Lyon, *After Findlay: A Consider­ation of Some Aspects of the
    Military Justice System*, \[1998\] [Crim. L. Rev.]{.smallcaps} 109.

[^4]: Act of Dec. 10, 1998, S.C. 1998, c. 35 (Can.), *proclaimed in
    force*, Stat. Inst. No. 99-74, 133 [C. Gaz.]{.smallcaps} 1959
    (1999).

[^5]: *E.g., R. v. Généreux*, \[1992\] 1 S.C.R. 259, 88 D.L.R. 4th 100
    (1992); *Lauzon v. The Queen*, 56 C.R.R.2d 30, 129 C.C.C.3d 399
    (C.M.A.C. 1998); *see also, R. v. Edwards*, \[1995\] C.M.A.J. No. 10
    (Q.L.) (Can.); *Bergeron v. The Queen*, 62 C.R.R.2d 322, 136
    C.C.C.3d 327 (C.M.A.C. 1999) (Can.); *Boivin v. The Queen*, \[1998\]
    C.M.A.J. No. 7 (Q.L.), 1998 F.C.A.D.J. 67 (Can.); *see generally*
    Depart­ment of National Defence, *Minister\'s Monitoring Committee on
    Change in the Depart­ment of National Defence and the Canadian
    Forces, Interim Report,* ¶ 6 (1998) (available at
    <http://www.dnd.ca/eng/min/reports/Monitoring/preliminary.htm>) and
    Depart­ment of National Defence, *Minister\'s Monitoring Committee on
    Change in the Depart­ment of National Defence and the Canadian
    Forces, Final Report 1999*, ch. 5 (available at
    <http://www.dnd.ca/menu/press/Reports/monitor_com_final/eng/cover_e.htm>)
    (copy on file with The Air Force Law Review).

[^6]: Military Discipline Supplementary Measures Act, No. 16 of 1999,
    [Proc.]{.smallcaps} R67 in GG20101 (S. Afr. 1999). The new
    legislation took effect on May 28, 1999.

[^7]: *Freedom of Expression Institute v. President of the Ordinary
    Court-Martial*, Nos. 7057/97, 7058/97 (Cape High Ct. December 18,
    1998). Because of the legislation enacted following the decision of
    the High Court, the Constitutional Court decided that there was no
    reason for it to address the merits of the case. *President of the
    Ordinary Court-Martial v. Freedom of Expression Institute*, 1999 (4)
    SA 682 (CC).

[^8]: In addition to the Abadee Report, the Australian Parliament\'s
    Defence Subcommittee of the Joint Standing Committee on Foreign
    Affairs, Defence and Trade began military justice hearings in 1998.

[^9]: 15th Law Commission of India, Report No. 169 (1999); *see Armed
    Forces Tribunal to be Set Up Soon*, T[he]{.smallcaps}
    H[indu]{.smallcaps}, May 22, 1999,
    www.indiaserver.com/thehindu/1999/05/22/stories/

    0222000i.htm (copy on file with The Air Force Law Review).

[^10]: Julia Preston, *Mexican Military Arrests Dissident Army Officer*,
    N.Y. T[imes]{.smallcaps}, March 18, 1999, at A3; Ginger Thompson,
    *Mexican Army Protester Goes Loudly Into Hiding*, N.Y.
    T[imes]{.smallcaps}, December 29, 1998, at A3.

[^11]: ABA Standing Committee on Armed Forces Law, *Draft Report and
    Recom­men­da­tion* (1999) (available at
    <http://www.abanet.org/leadership/99annrecs/102.html>) (copy on file
    with The Air Force Law Review), *see also*, [Mil. J.
    Gaz.]{.smallcaps}, No. 69 (September 1999).

[^12]: *E.g.,* Squadron Leader Sheikh Mohammad Anwar, *The
    Administration of Military Justice in the Pakistan Air Force*, 61
    [Mil. L. Rev.]{.smallcaps} 41 (1973); Major George C. Ryker, *The
    New French Code of Military Justice*, 44 [Mil. L. Rev.]{.smallcaps}
    71 (1969). Foreign military law has also been examined from time to
    time in civilian law reviews, *see* Edward F. Sherman, *Military
    Justice Without Military Control*, 82 [Yale L.J.]{.smallcaps} 1398
    (1973).

[^13]: James W. Rant, *The British Courts-Martial System: It Ain\'t
    Broke, But It Needs Fixing*, 152 [Mil. L. Rev]{.smallcaps}. 179
    (1996). A short description of the German system appeared in Kenneth
    S. Kilimnik, *Germany\'s Army After Reunification: The Merging of
    the* *Nationale Volksarmee Into the Bundeswehr*, 145 [Mil. L.
    Rev.]{.smallcaps} 113, 131-33 (1994).

[^14]: James W. Rant, *Findlay, The Consequences: Remarks Given at the
    Judge Advocate General School, November 1997*, [The
    Reporter]{.smallcaps}, September 1998, at 3.

[^15]: 35 M.J. 450 (1992).

[^16]: *Id*. at 466.

[^17]: *Id*. at 465-66. *See* Andrew M. Ferris, *Military Justice:
    Removing the Probability of Unfairness*, 63 U. [Cin. L.
    Rev]{.smallcaps}. 439, 476-77 (1994).

[^18]: Petition for Writ of Certiorari 25-26, *Graf v. United States*,
    510 U.S. 1085 (1994) (denying cert.), citing *R. v. Généreux*,
    \[1992\] 1 S.C.R. 259, 70 C.C.C.3d 1 (1992); *see also* Jody M.
    Prescott, *Soviet Military Justice and the Challenge of
    Perestroi­ka*, 123 [Mil. L. Rev.]{.smallcaps} 129, 131-32 (1989);
    Michael N. Schmitt & James E. Moody, *The Soviet Military Justice
    System*, 34 A.F. L. R[ev]{.smallcaps}. 1, 28 & nn.235, 238 (1991);
    Michael N. Schmitt, *The Judicial and Non-Judicial Punishment
    Systems of the Soviet Armed Forces*, 4 J. S[ov]{.smallcaps}. [Mil.
    Stud.]{.smallcaps} 87, 102 & n.50 (1991).

[^19]: *Graf,* Pet. at 26.

[^20]: 510 U.S. 1085 (1994).

[^21]: 510 U.S. 163 (1994).

[^22]: 483 U.S. 435 (1987).

[^23]: 395 U.S. 258 (1969).

[^24]: ACLU Br. as Amicus Curiae in Support of Petitioner 11-24,
    *Solorio v. United States, supra* (collecting authorities from U.K.,
    U.S.S.R., Canada, Austra­lia, New Zealand, Israel, Philippines,
    Pakistan, France, and South Korea).

[^25]: *Id.* It is a curious fact that our legal system at times seems
    to take a greater interest in foreign military justice developments
    that occurred hundreds of years ago than it does in those that have
    occurred in the last decade. *See, e.g., Loving v. United States*,
    517 U.S. 748, 761 (1996) (quoting ordinance of Richard I---A.D.
    1190).

[^26]: *See generally* Vicki C. Jackson, *Ambivalent Resistance and
    Comparative Constitutionalism: Opening Up the Conversation on
    "Proportionality," Rights and Federalism*, 1 U. P[a. J.
    Const]{.smallcaps}. L. 583 (1999).

[^27]: 521 U.S. 898 (1997).

[^28]: *Id*. at 977.

[^29]: *Id*. at 921 n.11.

[^30]: Ruth Bader Ginsburg & Deborah Jones Merritt, *Affirmative Action:
    An International Human Rights Dialogue*, 54 [Rec. Of Ass'n Of B. Of
    City Of New York]{.smallcaps} 278, 308-09 (1999).

[^31]: *Id*. at 308-09 (emphasis in original; footnotes omitted).

[^32]: There is a rich and growing literature in this area. *E.g.,*
    Diane H. Mazur, *A Call to Arms*, 22 [Harv. Women's]{.smallcaps}
    L.J. 39 (1999); Elizabeth Lutes Hillman, *The "Good Soldier"
    Defense: Character Evidence and Military Rank at Courts-Martial*,
    108 Y[ale]{.smallcaps} L.J. 879, 908-10 (1999); Diane H. Mazur,
    *Women, Responsi­bility, and the Military*, 74 [Notre Dame L.
    Rev]{.smallcaps}. 1 (1998); Madeline Morris, *By Force of Arms:
    Rape, War, and Military Culture*, 45 D[uke]{.smallcaps} L.J. 651
    (1996); Michael F. Noone & Mary Jo Wiley, *Sticks, Stones and Broken
    Bones: Military Law\'s Criteria for Aggravated Assault*, 14
    [Feminist Issues]{.smallcaps} 67 (1994).

[^33]: *E.g., S. v. Makwanyane*, 1995 (3) S.A. 391 (C.C.) (South African
    Constitutional Court invalidat­es death penalty while broadly
    surveying international and foreign comparative law). Additionally,
    section 39(1) of the 1996 South African Constitution provides that
    "\[w\]hen interpreting the Bill of Rights, a court, tribunal or
    forum" . . . may consider foreign law." In *Makwanyane*, President
    Chaskalson wrote "\[w\]e can derive assistance from public
    international law and foreign case law, but we are in no way bound
    by it." *Makwanyane*, at ¶ 39. The Cape High Court cited Canadian
    cases, including *Généreux*, and the European Court of Human
    Rights\' decision in *Findlay* in determining that the South African
    military justice system did not provide an impartial and independent
    tribunal. *Freedom of Expression Institute, supra* note 6, at 15-18.

[^34]: As one group of commentators noted,

    When comparatists devote their attention to a vexing or unsolved
    problem, it is not with the idea that they will find in some foreign
    land a "soluti­on," which, like a new electrical appliance, can be
    fitted with an adaptor and plugged into the system back home. What
    they are usually looking for is, initially, a deepened understanding
    of the prob­lem, and, if they are lucky, a source of inspira­tion.

    [Mary Ann Glendon, Michael Wallace Gordon & Christopher
    Osakwe]{.smallcaps}, [Comparative Legal Traditions]{.smallcaps} 10
    (2d ed. 1994).

[^35]: Richard A. Posner, *Ask, Tell*, [New Republic]{.smallcaps},
    October 11, 1999, at 52, 54.

[^36]: Paul W. Brosman, *The Court: Freer than Most*, 6 [Vand. L.
    Rev.]{.smallcaps} 166 (1953).

[^37]: Eugene R. Fidell, *"If a Tree Falls in the Forest . . .":
    Publication and Digesting Policies and the Potential Contribution of
    Military Courts to American Law*, 32 J[ag]{.smallcaps} J. 1, 9 n.55
    (1982); *see also* Eugene R. Fidell, *Going on 50: Evolution and
    Devolution in Military Justice,* 32 W[ake Forest L.
    Rev.]{.smallcaps} 1213, 1214-19 (1997) (available at
    <http://www.law.wfu.edu/lawreview/V32/docs/32-4-5.pdf>) (copy on
    file with The Air Force Law Review). Where legal institutions are
    newborn, a broader perspective is to be expected. For example, in
    *Makwanyan­e*, President Chaskalson commented that "\[c\]omparative
    'bill of rights' jurisprudence will no doubt be of importance,
    particular­ly in the early stages of the transition when there is no
    developed indigenous jurisprudence in this branch of the law on
    which to draw.\'\' *Makwanyane, supra* note 32, at ¶ 37.

[^38]: *See* Brosman, *supra* note 35, at 167-168; Fidell, *supra* note
    36.

[^39]: *New State Ice Co. v. Liebman*, 285 U.S. 262, 311 (1932)
    (Brandeis, J., dissenting).

[^40]: *See* [Eugene R. Fidell]{.smallcaps}, [Guide To The Rules Of
    Practice And Proce­dure For The United States Court Of Appeals For
    The Armed Forces]{.smallcaps} 112 (8th ed. 1997) (available at
    http://uppmlj.freeyellow.com/./fidell.html).

[^41]: Sandra Day O\'Connor, *Broadening Our Horizons: Why American
    Lawyers Must Learn About Foreign Law*, 45 F[ed Law]{.smallcaps}.,
    No. 8, 20 (September 1998).

[^42]: "The major distinguishing character­istic of global activities is
    that the areas of integration are largely oblivious to state
    boundaries, and that the processes of globalization usually occur
    without or with little direct agency of the state." Alfred C. Aman,
    Jr., *The Globalizing State: A Future-Oriented Perspective on the
    Public/Private Distinction, Federalism, and Democracy*, 31 [Vand. J.
    Trans]{.smallcaps}. L. 769, 780 & n.34 (1998).

[^43]: Act of Dec. 10, 1998, S.C. 1998, c. 35, sec. 42 (Can.) (National
    Defence Act ¶ 165.21\[2\]).

[^44]: Dep\'t of the Army, *Legal Services: Military Justice*, Army Reg.
    27-10, ch. 1. Then-Chief Judge Cox described the new regulation as
    "a giant step forward." Walter T. Cox, III, *The 27th Annual Kenneth
    J. Hodson Lecture: Echoes and Expectations: One Judge\'s View*, 159
    M[il. L. Rev]{.smallcaps}. 183, 201 (1999).

[^45]: *E.g., United States v. Thomas*, 22 M.J. 388, 393 (C.M.A. 1986).

[^46]: In *R. v. Sullivan* (N.Z.C.M.A.C. 1994), the convening authority
    was in the vicinity of the courtroom for part of the trial, and
    during argument and deliberations, and was apparently in the
    courtroom when the verdict was announced and during the sentenc­ing
    phase.

[^47]: *Hembury v. Chief of the General Staff*, 193 C.L.R. 641, at ¶
    58(2) (1998) (Kirby, J.) (available at
    <http://scaleplus.law.gov.au/html/highcourt/0/98/0/HC000470.htm>)
    (copy on file with The Air Force Law Review). Notably, the High
    Court referred to the voting practices of courts-martial in the
    United Kingdom, United States, Canada and New Zealand.

[^48]: Jury selection is one area in which command has traditionally
    played a key role. In 1998, Congress directed the preparation of a
    report on the method of selection of court-martial members,
    including an examination of alternatives. Strom Thurmond National
    Defense Authorization Act for Fiscal Year 1999, sec. 552, 112 Stat.
    2023 (1998). Among the alternatives considered by the Joint Service
    Committee on Military Justice are the British and Canadian systems.

[^49]: Act of Dec. 10, 1998, S.C. 1998, c. 35, § 24 *et seq*. (Can.).

[^50]: *United States v. Bennett*, 21 C.M.R. 223 (C.M.A. 1956).

[^51]: *E.g., Loving v. United States*, 517 U.S. 749 (1996); *United
    States v. Gray*, 51 M.J. 1 (1999) (3-2 decision).

[^52]: *See, e.g., R. v. Marsaw*, 151 D.L.R.4th 667, 686-89, 119
    C.C.C.3d 3, 21-25 (C.M.A.C. 1997).

[^53]: *See Solorio v. United States, supra*; *Ionson v. The Queen*, 4
    C.M.A.R. 433 (C.M.A.C. 1987) (Can.), *app. dism*., \[1989\] 2 S.C.R.
    1073; *Brown v. The Queen*, 26 C.R.R.2d 325 (C.M.A.C. 1995) (Can.);
    *Re Nolan; Ex parte Young*, \[1991\] 172 C.L.R. 460 (Austl.).

[^54]: 46 M.J. 41 (1997).

[^55]: 45 F. Supp.2d 1 (D.D.C. 1998) (Robertson, J.). It was critical
    that the district judge in *Robinson* had once served as a naval
    officer. The shrinking percentage of veterans on the bench is
    pointedly noted in Donald N. Zillman, *Where Have All the Soldiers
    Gone: Observa­tions on the Decline of Military Veterans in
    Government*, 49 M[e. L. Rev]{.smallcaps}. 85, 100 (1997); Posner,
    *supra* note 34; a phenomenon also noted in Canada, [Chris Madsen,
    Another Kind Of Justice: Canadian Military Law From Confeder­a­tion To
    Somalia]{.smallcaps} 133 (1999) and makes the litigation of
    peculiarly military legal issues in the federal courts even more
    challenging than in the past.

[^56]: *E.g.*, Armed Forces Discipline Amendment Act, 1988, ch. 89,
    title 21 (N.Z.) ("\[f\]or the purposes of the application of this
    punishment, a person is on sea service if that person is a member of
    the crew of a ship that is at sea or of a ship whose commanding
    officer has been ordered to keep the ship at less than 48 hours\'
    notice for sea") (available at
    <http://rangi.knowledge-basket.co.nz/gpacts/public/text/1988/se/089se21.html>)
    (copy on file with The Air Force Law Review); *see also* Q.R. & O. ,
    108.31 (Can.); Naval Summary Discipline Regulations 1997,
    Regulations 54-58 (U.K.); James W. Rant, *Courts-Martial Handbook:
    Practice And Procedure*, §§ 9.12, 9.16 (1998); The Military Justice
    Law, 1955, S.H. 189, § 150 (Isr.).

[^57]: The question of jurisdictional gaps remains in play in the United
    States. The report prepared in response to section 1151 of the
    National Defense Authoriza­tion Act for Fiscal Year 1996, 110 Stat.
    186 (1996), addressed British and Canadian experience. Overseas
    Jurisdiction Advisory Committee, *Report Of The Advisory Committee
    On Criminal Law Jurisdic­tion Over Civilians Accompanying The Armed
    Forces In Time Of Armed Conflict*, 30-32 (1997); *see also* S. 768,
    106th Cong. (1999) (proposed Military and Extraterri­to­rial
    Jurisdic­tion Act of 1999).

[^58]: 354 U.S. 1 (1957).

[^59]: \[1998\] 1 All E.R. 193, \[1998\] 2 W.L.R. 1, \[1998\] 1 Cr. App.
    Rep. 347 (1997).

[^60]: Hillman, *supra* note 31. For a very different view see Paul A.
    Capofari, *Military Rule of Evidence 404 and Good Military
    Character*, 130 [Mil. L. Rev]{.smallcaps}. 171, 189 (1990) (urging
    admissibility of evidence of good military character at all
    courts-martial).

[^61]: *See, e.g., R. v. Marsaw, supra* note 51, 151 D.L.R.4th at
    676-79, 119 C.C.C.3d at 12-15 (discussing application of Can. Mil.
    R. Evid. 20-21).

[^62]: A recent decision of the Supreme Court of India held that the
    Bombay High Court had no writ jurisdiction over a naval
    court-martial. T. Padmanabha Rao, *Supreme Court Dismisses Plea
    Against Court-Martial*, [The Hindu]{.smallcaps}, July 8, 1999
    (available at
    [www.indiaserver.com/thehindu/1999/07/08/stories/0208000f.htm](http://www.indiaserver.c/)).
    Similarly, the High Court of Singapore has held that it lacks
    authority to review decisions of the Military Court of Appeal by
    prerogative writ. *Abdul Wahab bin Sulaiman v. Comman­dant, Tanglin
    Detention Barracks*, 1985-1 Malayan L.J. 418, 1985 MLJ LEXIS 37
    (Sing. 1985).

[^63]: Military Discipline Supplementary Measures Act, No. 16 of 1999, §
    7(1) (S. Afr.); 15th Law Comm\'n of India, Report No. 169 (1999)
    (Armed Forces Appellate Tribunal to include retired flag or general
    officers). Israeli law also permits nonlawyers to sit, in
    exceptional cases, on the Appeal Court Martial. *See* The Military
    Justice Law, 1955, S.H. 189, § 216 (Isr.).

[^64]: "By 1982, forty judges from the Federal Court of Canada and other
    superior courts of criminal jurisdiction appointed by the
    governor-in-council belonged to the Court Martial Appeal Court. . .
    . The court grew to fifty-five judges in 1986." Madsen, *supra*,
    note 54, at 133-34. In the United States, judges of the Article III
    courts may sit by designa­tion on The United States Court of Appeals
    for the Armed Forces pursuant to 10 U.S.C. § 942(f) (1994), but
    these cases remain the exception; ordinarily, only judges appointed
    to the United States Court of Appeals for the Armed Forces sit on
    that court.

[^65]: 10 U.S.C. § 942(b)(1), (4) (1994).

[^66]: As scholars have noted,

    In nearly all fields of law, however, we observe that, even in the
    absence of organized unification efforts, there exists a common core
    of legal con­cepts and precepts shared by some, or even by a
    multitude, of the world\'s legal systems. To explain this phenomenon
    in terms of the underlying histori­cal and social causes, is a task
    of considerable complexity; the explana­tions will differ from
    subject to subject and from continent to continent. In spite of the
    difficulty of establishing its etiology, however, the existence and
    vast extent of this common core of legal systems cannot be doubt­ed.

    [Rudolph B. Schles­inger, Hans W. Baade, Mirjan R. Damaska & Peter E.
    Herzog]{.smallcaps}, [Comparative Law: Cases, Texts,]{.smallcaps}
    [Materials]{.smallcaps} 34-35 (5th ed. 1988) (footnotes omitted).
    The known British roots of many military justice systems obviate the
    need for etiological guesswork.

[^67]: *See* Remarks delivered concerning Darwin's historic 1831 voyage
    on the H.M.S. Beagle,
    [www.freeyellow.com/members5/uppmlj/erfdarwin.htm](http://www.freeyellow.com/members5/uppmlj/erfdarwin.ht)
    (copy on file with The Air Force Law Review).

[^68]: *E.g., Parker v. Levy*, 417 U.S. 733, 743 (1974); *see also Weiss
    v. United States, supra*, 510 U.S. at 174.

[^69]: C. Thomas Dienes, *When the First Amendment is Not Preferred: The
    Military and Other "Special Contexts,"* 56 [U. Cin. L.
    Rev]{.smallcaps}. 779, 802 n.73 (1987).

[^70]: ^?^ *E.g.*, Hillman, *supra* note 31, at 899-90; Karen A. Ruzic,
    Note and Comment, *Military Justice and the Supreme Court\'s
    Outdated Standard of Deference:* *Weiss v. United States*, 70
    [Chi.-Kent L. Rev.]{.smallcaps} 265 (1994); Ferris, *supra* note 16,
    at 485. For the other side of the argument see James M. Hirschhorn,
    *The Separate Community: Military Uniqueness and Servicemen\'s
    Constitutional Rights*, 62 N.C. L. [Rev]{.smallcaps}. 177 (1984).

[^71]: Commander Cave\'s site may be found at [www.court-mar­tial.com,]()
    while Colonel Paphiti\'s is
    [www.aspals.com](http://www.aspals.com/). They have received
    thousands of "hits."

[^72]: Professor Jackson has reported "an increase in U.S. judges\'
    travel abroad to meet with their counterparts, and likewise a
    substantial influx in the other direction, fueled in some measure by
    the emergence of new regimes in Eastern and Central Europe and the
    constitutional revolution in South Africa." Jackson, *supra* note
    25, at 596 n.49.

[^73]: National Institute of Military Justice, *Continuity and Change in
    Military Justice* (1998) (available at
    <http://uppmlj.freeyellow.com/erflon.htm>) (copy on file with The
    Air Force Law Review).

[^74]: [Oded Mudrik, Sh\'fita Tzava\'it \[Military
    Judging]{.smallcaps}\] (1993) (Isr.); [James W. Rant, Courts-Martial
    Handbook: Practice And Procedure]{.smallcaps} (1998) (U.K.); [Gerard
    Humphreys & Ciaran Craven, Military Law In Ireland]{.smallcaps}
    (1997); [G.K. Sharma, Study And Practice Of Military Law (4th Ed.
    1996) (India); D.C. Jain, N.K. Indrayan & C.G. Goel, Military Law In
    India (1984);]{.smallcaps} and [Madsen]{.smallcaps}, *supra*, note
    54. For two notable recent contributions to the American military
    justice literature see [Jonathan Lurie, Arming Military Justice: The
    Origins Of The United States Court Of Military Appeals, 1775-1950
    (1992)]{.smallcaps} and [Jonathan Lurie, Pursuing Military Justice:
    The History Of The United States Court Of Appeals For The Armed
    Forces, 1951-1980 (1998).]{.smallcaps}

[^75]: ^?^ *E.g*., Vladislav Lavochkin, *Military Justice System in
    Russia Today: Organization and Functions*, 33 [Mil. L. & L. Of War
    Rev]{.smallcaps}. 9 (1994).

[^76]: *E.g*., M. M. Oosthuizen, *South African Court Cases on Military
    Law: 1980-1990*, 33 [Mil. L. & L. Of War Rev.]{.smallcaps} 405
    (1994).

[^77]: [National Institute Of Military Justice, Sourcebook On
    Contempo­rary Comparative Military Justice]{.smallcaps} (1998).

[^78]: The Military Justice seminar being taught this year by Senior
    Judges (and former Chief Judges of the United States Court of
    Appeals for the Armed Forces) Robinson O. Everett and Walter J. Cox
    III at Duke University School of Law, for example, includes "a
    comparative analysis of other military systems."
    <http://www.law.duke.edu/curriculum/seminarsFrame.html>.

    *See also* 94 [Yale U. Bull]{.smallcaps}., No. 8, [Yale L.
    Sch]{.smallcaps}. 1998-1999, 39 (Aug. 10, 1998) (Military Justice
    course description; materials to include decisions of, among others,
    House of Lords, Supreme Court of Canada, and European Court of Human
    Rights).