Martial law

Martial law

Tanks during the imposition of martial law in Poland, December 1981

Dunmore's Proclamation declaring martial law in the Colony of Virginia on 7 November 1775

Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers.^[1] Martial law can continue for a specified amount of time, or indefinitely, and standard civil liberties may be suspended for as long as martial law continues.^[2][1] Most often, martial law is declared in times of war and/or emergencies such as civil unrest and natural disasters.^[3] Alternatively, martial law may be declared in instances of military coup d'états.^[4]

Overview

Despite the fact that it has been declared frequently throughout history, martial law is still often described as largely elusive as a legal entity.^[5] References to martial law date back to 1628 England, when Sir Matthew Hale described martial law as, “no Law, but something indulged rather than allowed as a Law.”^[5] Despite being centuries old, this quote remains true in many countries around the world today. Most often, the implementation of martial law arises from necessity rather than legal right, and while some countries have provisions explicitly permitting the use of martial law, many do not.^[5] For countries that do not explicitly permit the declaration of martial law, but where martial law has been declared, the legal justification for it is often the common law doctrine of necessity, or some variation of it.

Common law doctrine of necessity and martial law

One legal theory most frequently associated with martial law is the common law doctrine of necessity.^[5] While many countries, the United States for example, do not have the explicit constitutional right to declare martial law, scholars often interpret the law of the United States to allow for the implementation of martial law in times of necessity.^[6] Countries such as Pakistan have famously implemented this rationale as well.^[7]

Use

Martial law can be used by governments to enforce their rule over the public, as seen in multiple countries listed below. Such incidents may occur after a

The War Measures Act was a

After the Nationalist-led central government of China lost control of the mainland to the Chinese Communist Party and retreated to Taiwan in 1949, the perceived need to suppress Communist activities in Taiwan was utilised as a rationale for not lifting martial law until thirty-eight years later in 1987, just prior to the death of then President Chiang Ching-kuo. Taiwan's period of martial law was one of the longest in modern history, after that of Syria (1967–2011).^[11]

Martial law was imposed in

Egypt

In Egypt, a

A State of Emergency gives military courts the power to try civilians and allows the government to detain for renewable 45-day periods and without court orders anyone deemed to be threatening state security. Public demonstrations are banned under the legislation. On 10 February 2011, the ex-president of Egypt, Hosni Mubarak, promised the deletion of the relevant constitutional article that gives legitimacy to State of Emergency in an attempt to please the mass number of protesters that demanded him to resign. On 11 February 2011, the president stepped down and the vice president Omar Suleiman de facto introduced the country to martial law when transferring all civilian powers from the presidential institution to the military institution. It meant that the presidential executive powers, the parliamentary legislative powers and the judicial powers all transferred directly into the military system which may delegate powers back and forth to any civilian institution within its territory.

The military issued in its third announcement the "end of the State of Emergency as soon as order is restored in Egypt". Before martial law, the Egyptian parliament under the constitution had the civilian power to declare a State of Emergency. When in martial law, the military gained all powers of the state, including to dissolve the parliament and suspend the constitution as it did in its fifth announcement. Under martial law, the only legal framework within the Egyptian territory is the numbered announcements from the military. These announcements could for instance order any civilian laws to come back into force. The military announcements (communiques) are the de facto only current constitution and legal framework for the Egyptian territory. It means that all affairs of the state are bound by the Geneva Conventions.

Finland

The Preparedness Act (SDK 1552/2011, Finnish: valmiuslaki) is a law in Finnish legislation, enacted in accordance with the constitutional procedure. The purpose of the Act is to give the authorities sufficient powers in times of war and other exceptional circumstances. During a state of defence (war), there is also the Defence Status Act, the provisions of which override the Preparedness Act. Together, the two laws form the Emergency Preparedness Act. The current Emergency Preparedness Act and its predecessor of the same name (1080/1991) were designed to replace the emergency provisions previously scattered over several different acts.

Iceland

The Icelandic constitution provides no mechanism for the declaration of war, martial law nor state of emergency.^{[citation needed]}

India

There is no implicit mention of Martial Law in the Indian constitution with the exception of Article 34 which gives Parliament the power to indemnify persons in respect of acts done in territories where martial law was in force and to legitimize such actions. But in the text itself, there is no mention of any grants of power to declare Martial Law.^[15]

During the British Raj, Martial law was effectively declared in the Defense of India Act, 1915 and the Defense of India Act, 1939. It was also declared in most of the Punjab during 1919 as a response to tensions caused by the Amritsar Massacre. These tensions were caused due to the controversial Rowlatt Act.^[16][17][18]

Indonesia

On May 18, 2003, during a military activity in Aceh, under the order of the president, Indonesian Army Chief imposed martial law for a period of six months to eliminate Acehnese separatists.

Iran

On September 7, 1978, in response to public demonstrations protesting the perceived government involvement in the death of the son of Ayatollah Khomeini,

In 1916, during the Easter Rising, Lord Wimborne the Lord Lieutenant of Ireland, declared martial law to maintain order in the streets of Dublin. This was later extended both in duration and geographical reach to the whole of the country with the consent of the British government. Much of Ireland was declared under martial law by the British authorities during the Irish War of Independence. A large portion of Ireland was also under de facto martial law during the Irish Civil War.

The current Irish Constitution allows for martial law if the government declares a state of emergency; however capital punishment is prohibited in all circumstances, including a state of emergency.

Israel

Military administrative government was in effect from 1949 to 1966 over some geographical areas of Israel having large Arab populations, primarily the Negev, Galilee, and the Triangle. The residents of these areas were subject to martial law.^[23][24] The Israel Defense Forces enforced strict residency rules. Any Arab not registered in a census taken during November 1948 was deported.^[25] Permits from the military governor had to be procured to travel more than a given distance from a person's registered place of residence, and curfew, administrative detentions, and expulsions were common.^[23] Although the military administration was officially for geographical areas, and not people, its restrictions were seldom enforced on the Jewish residents of these areas. In the early 1950s, martial law ceased to be in effect for those Arab citizens living in predominantly Jewish cities of Jaffa, Ramla, and Lod, constituting a total of approximately 15% of the Arab population of Israel. But military rule remained in place on the remaining Arab population elsewhere within Israel until 1966.^[26]

This period is remembered for its extreme crackdown on political rights, as well as unaccountable military brutality. Most political and civil organization was prohibited. Flying of Palestinian flag, as well as other expressions of Palestinian patriotism were prohibited. Furthermore, despite theoretical guarantee of full political rights, military government personnel frequently made threats against Arabs citizens if they did not vote in elections for the candidates favored by the authorities.^[27] Perhaps the most commemorated incidence of military brutality in this time period was the Kafr Qasim massacre in 1956, in which the Israel Border Police killed 48 people (19 men, 6 women and 23 children aged 8–17) as they were returning home from work in the evening. The Israeli army had ordered that all Arab villages in the proximity of the Green Line be placed under curfew. However, this order came into effect before the residents of these localities, including residents of Kafr Qasim, were notified.

Following the 1967 war, in which the Israeli army occupied the West Bank, Gaza Strip, the Golan Heights in Syria, and the Sinai Peninsula in Egypt, martial law over the Palestinian population as well as the Jordanian, Syrian, and Egyptian populations in these areas was put in place. In 1993, the Oslo I agreements facilitated limited self-rule for Palestinians under the Palestinian National Authority. Officially, only parts of Area C in the West Bank are under martial law.^[28]

During the

Instructions of the Home Front Command are obligatory under martial law, rather than merely recommended.^[29] The order signed by Peretz was in effect for 48 hours^[29] and was extended by the Cabinet and the Knesset Foreign Affairs and Defense Committee over the war's duration.^{[citation needed]}

Mauritius

Mauritius is known as being a "Westminster" style of democracy but a peculiar system that was imposed in Mauritius during a period of civil unrest in 1968 as an emergency measure, has never been repealed and is still used by the police force there to this day.^{[30][failed verification]} The system, which has no apparent foundation in the constitution of Mauritius, enables the police to arrest without having to demonstrate reasonable suspicion that a crime has been carried out but simply on the submission of "provisional information" to the magistrate. The accused is then placed on remand or bail and required to report to the police or the court on a regular basis, sometimes every day. There are examples of this system being used to intimidate or coerce individuals in civil litigations.^{[30][failed verification]}

Myanmar

On February 1, 2021, democratically elected members of Myanmar, known as the National League for Democracy, were overthrown by Myanmar's military, called the Tatmadaw.^[31] This military placed their power in a military junta.^[32] Five days following the coup, factory workers around Yangon (a region in Myanmar) held protests against the coup regime.^[31] On March 14, 2021, security forces killed upwards of sixty-five protestors in the town of Hlaingtharyar.^[32] As a result, the military junta declared martial law over the region of Yangon, including over the majority of industrial zones.^[32] As of February 22, 2023, Myanmar's military junta has declared martial law over a total of 50 townships in the regions of Chin, Kachin, Karen, Karenni, Mon States, Yangon and Mandalay.^[32] News reports indicate that since the military coup in February 2021, and the subsequent declaration of martial law in Myanmar regions, military tribunals have sentenced more than 100 people to death.^[32] Reports further indicate that a total of three townships in Myanmar's northwest reside under the “executive and judicial jurisdiction of regional military commander Maj. Gen. Than Htike,” who has since been sanctioned by the European Union for alleged human rights violations since Myanmar's declaration of martial law.^[32]

Pakistan

Martial law was declared in

The civilian martial law was imposed by Zulfikar Ali Bhutto, the first civilian to hold this post in Pakistan after the Bangladesh Liberation War. On 21 December 1971, Bhutto took this post as well as that of President.It was the first civilian martial law.

The third was imposed by the General

During the

In the Russian Federation recourse to martial law is governed by a document passed 30 January 2002 as No. 1-FKZ (1-ФКЗ).^[36]

South Korea

In October 1946,

Switzerland

There are no provisions for martial law as such in

International bodies declared such an extended state of emergency as against international law. Specifically, it was held to be in violation of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”), which Syria is a party to.[43] Article 4 of the ICCPR “limits the application of emergency laws to a time of ‘public emergency which threatens the life of the nation and the existence of which is officially proclaimed.’ It further stipulates that the state parties to the ICCPR may derogate from their obligations under the treaty only ‘to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.’”^[45]

In 2000, Syria responded to the allegations from the ICCPR, and countered that it was in compliance with the ICCPR in a report to the United Nations Human Rights Committee.^[46] Syria justified this ongoing declaration of emergency through their concerns of ongoing threats of war by Israel.^[43]

On July 28, 2005, the United Nations responded:

“Nothing with concern that the state of emergency declared some forty years ago is still in force and provides for many derogations in law or practice from the rights guaranteed under articles 9 14, 19, and 22, among others, of the Covenant, without any convincing explanation being given as to the relevance of these derogations to the conflict with Israel and as to the necessity of these derogations to meet the exigencies of the situation claimed to have been created by the conflict.”^[46][45]

In further response, Syria reiterated their position that the on-going emergency declaration was due to a continued threat of war on Syria from Israel.^[46][43] Despite ongoing dialogue over a period of years between Syria, the ICCPR, and the United Nations, the declaration remained in effect for the next six years from the 2005 statement made by the United Nations advising of the invalidity of such an extensive state of emergency declaration.^[46][45][43]

Ultimately, after nearly 50 years, in April of 2011, the President Bashar al-Assad ended Syria’s state of emergency, thereby signaling the end of the longest martial law ruling in history.^[47] This came as a response to protests demanding freedom from the historically long police rule over Syria.^[47]

Taiwan

The second-longest declaration of martial law in history occurred in Taiwan from 1949 to 1987, for a total of 38 consecutive years.^[48] Martial law in Taiwan refers to the periods in the history of Taiwan after World War II that are under the control by the Republic of China Armed Forces of the Kuomintang-led Government of the Republic of China regime. This qualified as "the longest imposition of martial law by a regime anywhere in the world" at that time ^[49] but has since been surpassed by Syria.

Thailand

Martial law in

Since the foundation of the

The restrictions from martial law were defined in a 2015 law "On the Legal Regime of Martial Law". The President decides on the declaration of martial law and then Verkhovna Rada must approve it.^[53][54]

Martial law was first declared in Ukraine in 2018 and as a response to Russian hostilities.

This period of martial law was both intended to be, and ultimately was, limited in scope.[55] At that time, the current president of Ukraine, President Poroshenko, proposed a 60-day martial law period, but ultimately a 30-day period of martial law was signed into effect.^[55] This period of martial law came to an end at its scheduled 30-day mark.^[55] This declaration was limited to specific areas of Ukraine, including territories along the Russia-Ukraine border, the Moldova-Ukraine border, the coasts of the Black Sea, the Sea of Azov, and the Azov – Kerch international waters.^[55]

On 24 February 2022, President

As of November 2023[update], there have been 10 extensions to the Ukrainian declaration of martial law.^[58] This has led to the October 2023 legislative elections in Ukraine being delayed, due to elections being unable to be held in times of martial law.^[59]

United States

In the United States martial law has been declared for a state or other locality under various circumstances including after a direct foreign attack (Hawaii after the

Congress passed the Posse Comitatus Act, which, depending on the circumstances, can forbid U.S. military involvement in domestic law enforcement without congressional approval.(18 U.S.C. § 1385, original at 20 Stat. 152

)

The legality of the implementation of martial law was examined in 1866, in the court case Ex parte Milligan, 71 U.S. 2 (1866).[62] Through this case, the Supreme Court established that trying civilians in military tribunals was unconstitutional unless there were no civilian courts available.^[62] Today, the ability to declare martial law over the United States is not explicitly granted in the Constitution.^[63] Despite this, martial law has been declared at least 68 times in the United States.^[6]

There are two main schools of thought regarding the declaration of martial law. First, some scholars argue that the ability to declare martial law is a constitutional power vested in Congress, and in some cases of emergency, the President.^[64] The second school of thought believes that the power to declare martial law in the United States is not expressed in any law, but rather arises as a matter of necessity and in the interests of “national self-preservation.”^[64] As it stands today, there is no explicit provision in the Constitution granting powers to any specific body of government to declare martial law.

Historically, martial law has been declared in response to national emergencies in the United States. In Hawaii, for example, martial law was instituted following the attack on Pearl Harbor.^[65] The Supreme Court evaluated the legality of declaring martial law in Hawaii in the court case Duncan v. Kahanamoku, 327 U.S. 304 (1946).^[66] Here, the Supreme Court held that although Hawaii was not yet a state, the legality of declaring martial law must be analyzed as though Hawaii was one.^[66] As a result, the United States determined that the safety of the residents of Hawaii was their responsibility, and martial law was implemented throughout the Hawaiian Islands.^[65]

Yugoslavia

During the

Kumanovo Treaty.^{[citation needed}

]

See also

• DEFCON
• Gendarmerie
• Military rule (disambiguation)
• Stratocracy, a form of government headed by military generals.
• Police state, state governed through the power of the police force.
• Military junta, a government led by a committee of military leaders.
• Military dictatorship, a form of autocratic rule led by the military.
• Authoritarianism, a form of government with strong central power and limited freedoms.

References

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Further reading

• Macomb, Alexander, Major General of the United States Army, The Practice of Courts Martial, (New York: Harper & Brothers, 1841) 154 pages.
• ISBN 978-1-58477-709-0
  .
• ISBN 0-688-05142-1
  .
• The Concise Oxford Dictionary of Politics. Edited by Iain McLean and Alistair McMillan, Oxford University Press, 2004. ^[ISBN missing]
• Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern. Henry Campbell Black. St. Paul: West Pub. Co., 1979. ^{[ISBN missing]}

External links

Wikimedia Commons has media related to Martial law.

• 'Martial law' in the Encyclopædia Britannica
• Martial law in Thailand in 2005
• Full text of the 1972 Martial Law in the Philippines
• NSPD-51
• Emergency Rule of 3 November 2007 Pakistan Archived 16 September 2019 at the Wayback Machine