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Martial law is the substitution of a civilian government for 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] 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 arise in the event 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 a man named Lord Hale[6] 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 many countries do not have provisions explicitly permitting the use of martial law (yet still, some do).[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[7], or some variation of it.[5]

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.[8] Countries such as Pakistan have famously implemented this rationale as well.[9]

Article body.

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.[10] This military placed their power in a military junta.[11] Five days following the coup, factory workers around Yangon (a region in Myanmar) held protests against the coup regime.[10] On March 14, 2021, security forces killed upwards of sixty-five protestors in the town of Hlaingtharyar.[10] As a result, the military junta declared martial law over the region of Yangon, including over the majority of industrial zones.[10] 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.[12]

News reports indicate that since the military coup in February of 2021, and the subsequent declaration of martial law in Myanmar regions, military tribunals have sentenced more than 100 people to death.[12] 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.[12]

Syria.

Similar to other countries, martial law in Syria was established as a response to the declaration of a State of Emergency.[13] When on March 8, 1963, the Baath Party seized power, the prime minister of Syria, acting as the martial law governor, was granted extraordinary powers through his declaration of a State of Emergency.[14] Syrian laws enabled the martial law governor to place many restrictions on freedoms of individuals, such as with respect to “meetings, residence, travel and passage in specific places or at particular times; to preventatively arrest anyone suspected of endangering public security and order; to authorize investigation of persons and places; and to delegate any person to perform any of these tasks.”[14] However, the state of emergency declaration in Syria remained intact for nearly 50 consecutive years, prompting intervention and commentary from the international community.[14]

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.[14]

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.’”[14][15]

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.[14] Syria justified this ongoing declaration of emergency through their concerns of ongoing threats of war by Israel.[14] 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.”[16] 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.[14] 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.[14]

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.[17] This came as a response to protests demanding freedom from the historically long police rule over Syria.[17]

Taiwan. The second-longest declaration of martial law in history occurred in Taiwan from 1949 to 1987, for a total of 38 consecutive years.[18] Ukraine. Martial law was first declared in Ukraine in 2018 and as a response to Russian hostilities.[19] This period of martial law was both intended to be, and ultimately was, limited in scope.[19] 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.[19] This period of martial law came to an end at its’ scheduled 30-day mark.[19] 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.[19] Then, on March 15, 2022, the Parliament of Ukraine adopted the Law of Ukraine “On Organizing Labor Relations under Martial Law” which came into effect on March 24, 2022, and “clarified relevant restrictions of the constitutional right and freedoms and set out special rules applicable to labor relations to replace the ‘normal’ rules of the Labour Code of Ukraine.”[20] Article 4(7) of the Law of Ukraine holds that the “General Staff of the Armed Forces of Ukraine shall direct, coordinate and control the activities of regional military administrations on defense, public safety, and order, and implement measures of martial law. The Cabinet of Ministers of Ukraine shall direct, coordinate and control the regional military administrations regarding other issues.”[20] This second martial law declaration occurred on the same day as the 2022 Russian invasion into Ukraine.[20]

This period of martial law is currently set to end on May 20, 2023.[21] It was originally set to expire on February 19, 2023, but the Ukrainian Parliament opted to extend it 90 days.[21]

United States.

The legality of the implementation of martial law was examined in 1866, in the court case Ex parte Milligan, 71 U.S. 2 (1866).[22] Through this case, the Supreme Court established that trying civilians in military tribunals was unconstitutional unless there were no civilian courts available.[22] Today, the ability to declare martial law over the United States is not explicitly granted in the Constitution.[23] Despite this, martial law has been declared at least 68 times in the United States.[8]

There are two main schools of thought regarding the declaration of martial law. First, some scholars artgue that the ability to declare martial law is a constitutional power vested in Congress, and in some cases of emergency, the President.[24] 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.”[24] 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.[25] The Supreme Court evaluated the legality of declaring martial law in Hawaii in the court case Duncan v. Kahanamoku, 327 U.S. 304 (1946).[26] 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.[26] 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.[25]

References

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  1. ^ "Martial law | Definition & Facts | Britannica". www.britannica.com. Retrieved 2023-04-03.
  2. ^ "What Is Martial Law? Meaning, History In the U.S., and Example". Investopedia. Retrieved 2023-04-03.
  3. ^ "martial law". LII / Legal Information Institute. Retrieved 2023-04-03.
  4. ^ Verfasser., Lieber, Francis 1800-1872. To save the country : a lost treatise on martial law. ISBN 978-0-300-22254-8. OCLC 1123162097. {{cite book}}: |last= has generic name (help)CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  5. ^ a b c d e Moore, Cameron (2017-11-09). Crown and Sword: Executive power and the use of force by the Australian Defence Force. ANU Press. ISBN 978-1-76046-155-3.
  6. ^ "Matthew Hale (jurist)", Wikipedia, 2022-12-25, retrieved 2023-04-03
  7. ^ "Doctrine of necessity", Wikipedia, 2023-03-13, retrieved 2023-04-03
  8. ^ a b 7843. "Guide to Declarations of Martial Law in the United States | Brennan Center for Justice". www.brennancenter.org. Retrieved 2023-04-03. {{cite web}}: |last= has numeric name (help)
  9. ^ Wickramaratne, Jayampathy (2020). "Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to be Emulated in Sri Lanka". SSRN Electronic Journal. doi:10.2139/ssrn.3598986. ISSN 1556-5068.
  10. ^ a b c d Campbell, Stephen (2023). "Interrogating Myanmar's 'Transition' from a Post-coup Vantage Point". Sojourn: Journal of Social Issues in Southeast Asia. 38 (1): 1–27. ISSN 0217-9520.
  11. ^ "Military dictatorship", Wikipedia, 2023-03-22, retrieved 2023-04-03
  12. ^ a b c "Myanmar Junta Extends Martial Law". Human Rights Watch. Retrieved 2023-04-03.
  13. ^ Lopez, Shaun T. (2009-08). "On Race, Sports, and Identity: Picking Up the Ball in Middle East Studies". International Journal of Middle East Studies. 41 (3): 359–361. doi:10.1017/s0020743809091065. ISSN 0020-7438. {{cite journal}}: Check date values in: |date= (help)
  14. ^ a b c d e f g h i "No Room to Breathe: State Repression of Human Rights Activism in Syria: IV. Syria's Legal Framework". www.hrw.org. Retrieved 2023-04-03.
  15. ^ "International Covenant on Civil and Political Rights". OHCHR. Retrieved 2023-04-03.
  16. ^ "Consideration of reports submitted by States parties under article 40 of the Covenant", Report of the human rights committee: 97th session; 98th session; 99th session, UN, pp. 18–98, 2014-09-24, ISBN 978-92-1-056770-1, retrieved 2023-04-03
  17. ^ a b "Syria's Assad ends state of emergency". Reuters. 2011-04-21. Retrieved 2023-04-03.
  18. ^ Guiheux, Gilles; Tsang, Steve; Tien, Hung-Mao (2000). "Democratization in Taiwan: Implications for China". Pacific Affairs. 73 (4): 594. doi:10.2307/2672460. ISSN 0030-851X.
  19. ^ a b c d e www.americanbar.org https://www.americanbar.org/groups/labor_law/publications/labor_employment_law_news/spring-2022/martial-law-in-ukraine/. Retrieved 2023-04-03. {{cite web}}: Missing or empty |title= (help)
  20. ^ a b c "MARTIAL LAW – UkraineInvest". Retrieved 2023-04-03.
  21. ^ a b "Ukraine to extend martial law and general mobilization". Foreign Brief. 2023-02-18. Retrieved 2023-04-03.
  22. ^ a b Ex parte Milligan, 71 U.S. 2 (1866).
  23. ^ Fairman, Charles (1928-08). "The Law of Martial Rule". American Political Science Review. 22 (3): 591–616. doi:10.2307/1945619. ISSN 0003-0554. {{cite journal}}: Check date values in: |date= (help)
  24. ^ a b Lieber, Francis; Lieber, G. Norman (2019-07-23). "To Save the Country". doi:10.12987/9780300245189. {{cite journal}}: Cite journal requires |journal= (help)
  25. ^ a b "Remember Pearl Harbor", Hawaii Chronicles III, University of Hawaii Press, pp. 44–44, 2017-12-31, retrieved 2023-04-03
  26. ^ a b Duncan v. Kahanamoku, 327 U.S. 304 (1946).
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