The civil courts' challenge to military justice and its impact on the civil-military relationship

Abstract

What role do the courts play in the theory of the civil-military relationship? Commonly analysis of this relationship tends to overlook the legal institutional framework within which the military is located, and the transformations that are occurring to the institutions within this framework. Findlay v The United Kingdom (1997) and subsequent similar cases concerning human rights appear to have contributed to a wave of reform to military discipline legislation in recent times in Western states such as Canada, New Zealand and Australia. The case of Al-Skeini with its long and difficult journey through trials and public inquiries to a final determination in the Grand Chamber of the ECtHR on July 7, 2011 provides a demonstration of the role the civilian courts are playing in what was once seen as a purely political and military domain. This change is one that challenges the evolving civil-military relationship as previously accepted, demanding a re-evaluation of civil-military relations theory that acknowledges the role of the courts.