Martial Law

11 Key excerpts on "Martial Law"

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  Martial Law in India

  Historical, Comparative and Constitutional Perspective

  • Dr. K. Ratnabali, Dr. U. C. Jha(Authors)
  • 2020(Publication Date)
  • VIJ Books (India) Pty Ltd

    (Publisher)

  Chapter I

  Martial Law: An Introduction

  Martial Law, as it is understood today, is a common law concept. It is not clearly defined but relates to the use of the armed forces to counter certain emergent situations like insurrections or rebellion in a country. Martial Law is the will of the military general who commands the army. It overrides and suppresses all existing civil laws and civil authorities. In the past, the term Martial Law was loosely used to mean any one of the three systems of authority: (i) law for the governance of the armed forces which we call military law; (ii) law enforced by the armed forces in time of war, both in conquered territory and in disaffected regions at home; and (iii) law enforced by the armed forces authorities in time of peace when troops are used for the suppression of internal disorder. The first one i.e. military law, is statutory law and may be reviewed by the civilian tribunals. It has very little concern to the public at large. The second form of law belongs to the realm of public law, and has been said to be necessarily the will of military commander subject to customs of war. The third form of Martial Law is very significant and relates to employing military forces for the protection of life and property during insurrections and rebellion. Martial Law in the third form cannot be said to operate when the soldiers act in subordination to the civil authorities, doing nothing more than what the civil authorities themselves could do under the police power. It exists only when the military supplants the civil power and transcends the constitutional limitations, with respect to the invasion of life, liberty and property, placed up on the civil power.

  The discretion of the government in declaring Martial Law is not subject to review by the civil courts. However, there are two views as to the powers of the military authorities in such exigencies. The doctrine prevailing in England has been that the troops act merely for the suppression of violence, and that they have no power to promulgate and enforce regulations or to try civilians by court-martial for any offences whatsoever. The opposite view that a proclamation of Martial Law by the proper authorities places all persons in the affected region under the jurisdiction of military courts or commissions, and clothes the troops, acting under the orders of military commander, with authority even outside the zone of Martial Law, to suppress sedition and arrest and detain persons suspected of fomenting disorder. This form of Martial Law, involving a suspension of constitutional guarantees, was expressly authorized under the name of State of Siege by the Constitutions of France from time to time. Such provisions do not appear in most of Constitutions around the world.1

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  To Save the Country

  A Lost Treatise on Martial Law

  • Francis Lieber, G. Norman Lieber, Will Smiley(Authors)
  • 2019(Publication Date)
  • Yale University Press

    (Publisher)

  The commander of the forces may proclaim that the administration of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. 4. Martial Law is simply military authority exer-cised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is in-cumbent upon those who administer it to be strictly guided by the principles of justice, honor, and hu-manity, virtues adorning a soldier even more than 82 Military and Martial Law Distinguished other men, for the very reason that he possesses the power of his arms against the unarmed. 5. Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are ex-pected and must be prepared for. Its most complete sway is allowed—even in the commander’s own country—when face to face with the enemy, be-cause of the absolute necessities of the case, and of the paramount duty to defend the country against invasion. To save the country is paramount to all other considerations.  10. Martial Law, says Judge Parker, “is that military rule and authority which exists in time of war, and is conferred by the laws of war in relation to persons and things under and within the scope of active military opera-tions in carrying on the war, and which extinguishes or suspends civil rights, and the remedies founded upon them, for the time being, so far as it may appear to be necessary in order to the full accomplishment of the purposes of the war; the party who exercises it being liable in an action for any abuse of the authority thus conferred.

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  Military Rules, Regulations and the Code of War

  Francis Lieber and the Certification of Conflict

  • Richard Shelly Hartigan(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  4. Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity—virtues adorning a soldier even more than other men, for the very reason that he possess the power of his arms against the unarmed.

  5. Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist or are expected and must be prepared for. Its most complete sway is allowed—even in the commander’s own country—when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion.

  To save the country is paramount to all other considerations.

  6. All civil and penal law shall continue to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government—legislative, executive, or administrative—whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader.

  7. Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government.

  8. Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only; their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.

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  Critique of Security

  • Mark Neocleous(Author)
  • 2008(Publication Date)
  • EUP

    (Publisher)

  It has been usual for all governments, during an actual rebellion, to proclaim Martial Law, or the suspension of civil jurisdiction. 31 In other words, what was emerging was an understanding that Martial Law might be applicable not simply to the military, but also to the use of the military to maintain ‘order’ and ‘security’ in general. Within this was the belief that such a form of governance had two dimensions. First, that Martial Law involved the suspension of some fundamental liberties and thus the law per se ; something ‘indulged in’ rather than actual law, as Hale put it. In a heated debate in the House of Com-mons in April 1851 concerning the repression of rebellion in Ceylon, for example, the Duke of Wellington and Earl Grey agreed that because Martial Law is neither more nor less than the will of the general who commands the army, Martial Law means no law at all. 32 For this reason some have suggested that we should better speak of ‘martial rule’ than ‘Martial Law’. 33 The second dimension was that such exercises of Martial Law powers could be justified on the grounds of 44 CRITIQUE OF SECURITY necessity: that public order and the security of the state necessitated the suspension of basic liberties – ‘Martial Law is a rule of necessity’, the Judge Advocate General put it in a Commons committee debate in 1849. 34 Many writers therefore saw the roots of the argument for the use of Martial Law as lying in the concept of prerogative and the arbitrary powers it appeared to allow. And once this was established for the colonies it took little effort for the practices of colonial violence to be exercised on the mainland, in the kind of boomerang effect that colonial practice often had on the juridico-political structures of the colonising state. 35 A parallel to this development in Britain can also be traced in the US context. The key shift came following the attempt by militant Rhode Islanders to adopt a written constitution for the state in 1841.

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  Crown and Sword

  Executive power and the use of force by the Australian Defence Force

  • Mr Cameron Moore(Author)
  • 2017(Publication Date)
  • ANU Press

    (Publisher)

  The Petition of Right 1628 (Imp) purported to abolish the practice of Martial Law in England yet proclamations of Martial Law continued to occur thereafter in many places where English law applied. 2 The authorities for Martial Law are limited and Lord Hale described Martial Law as ‘no Law, but something indulged rather than allowed as a Law’. 3 Martial Law is distinct from military law in that it describes a set of circumstances rather than a body of law. There is no body of Martial Law as such. If the imposition of Martial Law results in the application of military law to civilians, then this is as a means of affording some sort of due process in a way familiar to military officers. It is not because military law applies of its own force by virtue of a state of Martial Law. 4 At its highest, Martial Law permits the military to exercise not only the executive but also some judicial and legislative functions of government. As Sir Charles Napier, once Commander-in-Chief of the British Army in India, said: ‘[T]he union of Legislative, Judicial and Executive Power in one Person is the essence of Martial Law’. 5 There are arguments that Martial Law in fact even authorises what no civilian government could do, including acts such as summarily killing prisoners and slaughtering innocent civilians to terrorise the surviving population into submission. 6 At its lowest, Martial Law is said not even to exist. It may just be the exercise of the common-law doctrine of necessity. The martial (that is to do with military forces) aspect of Martial Law only arises because the military may find itself relying on the doctrine but, even so, it is open to military and civilians alike to rely upon the doctrine 2 See Charles Clode, The Military Forces of the Crown: Their Administration and Government (John Murray, 1869) 179–80.

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  Emergency Powers in Theory and Practice

  The Long Shadow of Carl Schmitt

  • Michael Head(Author)
  • 2017(Publication Date)
  • Taylor & Francis

    (Publisher)

  Martial Law fell into disuse in Britain (but not its Irish colony) and most other ‘advanced’ countries during the twentieth century, usually replaced by more statutory forms of emergency or repressive powers (Simpson 2004: 69–71). Nevertheless, it remains in reserve. Martial Law is still loosely described as ‘the right to use force against force within the realm in order to suppress civil disorder’ (Heuston 1964: 152). This formulation could justify dictatorial measures.

  According to de Smith (a leading late twentieth-century authority on English constitutional and administrative law), if Martial Law arises, it is generally thought that the officer commanding the armed forces will become all-powerful and his actions ‘non-justiciable and, for the time being, absolute, subject only to consultation (if this is feasible) with the civil power’ (de Smith 1981: 511). ‘Non-justiciable’ means that the courts have no power to scrutinise the lawfulness of the actions taken.

  In Australia, Martial Law was invoked several times during the nineteenth century against convicts, Aborigines and workers. In his work, Emergency Powers , Lee ‘hazards a guess’ that the power to resort to Martial Law continues in Australia as a creature of the common law. Lee considered that, while legislation was generally preferable, the doctrine of Martial Law should not be buried, ‘for in the face of an extraordinary crisis it may come in useful … it may be better to rely on a “shadowy, uncertain, precarious something” than nothing at all’ (Lee 1984: 224).

  This argument would seem to justify dispensing with the rule of law. The words quoted by Lee were taken from a nineteenth-century English judgment, where Chief Justice Cockburn stated: ‘Martial Law when applied to the civilian is no law at all, but a shadowy, uncertain, precarious something, depending entirely on the conscience, or rather on the despotic and arbitrary will of those who administer it’ (R v Nelson and Brand

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  Violent Politics

  Strategies of Internal Conflict

  • M. Addison(Author)
  • 2015(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  6 These rules remained much the same until 1971, after the army’s involvement in Northern Ireland had begun. From then no longer was a police officer or magistrate able to call for troops in his own right, except in ‘grave and sudden emergencies … which in the opinion of the commander demand his immediate intervention to protect life and property’. Instead the request had to be made by the chief officer of police in person, and to the Ministry of Defence. 7 The use of troops against their own people is always fraught with political danger. It makes sense for ministers to control their use, and modern communi- cation makes that practicable. Until the second half of the twentieth century, Martial Law was the principal instrument for dealing with more serious outbreaks of viol- ence, such as armed insurrection. It suspended the civil administration and courts, and replaced them by unified military command. Notes on Imperial Policing, 1934 devoted more than half of its 50-odd small pages to the principles and practice of Martial Law, and made the point that there was no British equivalent of the statutory ‘state of siege’ which in other countries transfers administrative and legal powers to the armed forces in circumstances in which the civil power can no longer operate. The justification for the imposition of Martial Law is evident necessity. It need not even be proclaimed, but ‘it is, however, usual for the civil gov- ernment or the military commander-in-chief to issue a proclamation.’ 8 When Martial Law was in force, the military commander became responsible for administration, which was still exercised by the normal civil staff wherever possible, although they were responsible to him. The military commander also became responsible for justice, which he might exercise in any way he wished. Once the state of Martial Law was over, however, the civil courts could examine the actions of the mili- tary.

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  The Legal Power to Launch War

  Who Decides?

  • Michael Head, Kristian Boehringer(Authors)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  Third, courts have protected governments from punishment for official lawlessness—acts of surveillance, harassment, violence or intimidation undertaken in the name of defending the state. Such lawsuits have been defeated, almost without exception, since the launching of the ‘war on terror’ in 2001, setting ominous precedents for future wars.

  Finally, governments have succeeded, with the assistance of the judiciary, in using various legal devices to block attempts to challenge decisions to undertake military action or to engage in war-related activities, such as rendering prisoners to be tortured as part of the ‘war on terror’.

  Martial Law

  In Britain, after the final defeat of the absolute monarchy in 1688, Martial Law was regarded as an emergency suspension of the rule of law, strictly confined to cases of necessity in times of war, not in times of peace when ordinary courts were open (Capua 1977). Yet this view shifted during the 19th century.

  At the beginning of that century, Blackstone conceded that the rules regarding the power to declare Martial Law were unclear and capricious. Writing in 1809, he said that Martial Law was ‘built upon no settled principle, but is entirely arbitrary in its decisions’—that, indeed, it was ‘in truth no law but something rather than allowed as law, a temporary excrescence bred out of the distemper of the state’ (Blackstone 2001: 413).

  Writing toward the end of the 19th century, however, Dicey (2005: 543–45) asserted that the right to invoke Martial Law is ‘a right inherent in government’. Dicey—best known as a proponent of the concept of ‘rule of law’—said that the term ‘Martial Law’ was most accurately ‘employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law’ (Dicey 2005: 288). It was a ‘right, or power’ that was ‘essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England’ (Dicey 2005: 155, citing R v Pinney

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  Crimes Against The State

  From Treason to Terrorism

  • Michael Head(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Chapter 9Emergency Powers, Martial Law and Official Lawlessness

  It is beyond the scope of this present work to examine in any detail the powers to suppress political dissent and other perceived threats to the state that arise under emergency legislation. Nor can this volume deal with the even more arbitrary measures involved in declarations of Martial Law. Only a brief reference can be made to another issue: governments have also been known to resort to lawless actions, such as assassinations, renditions, torture, reprisals and military or paramilitary violence.

  Nevertheless, attention must be paid to these matters. The historical record has demonstrated close interconnections between such semi-legal or extra-legal mechanisms, and prosecutions for crimes against the state. Time and again, resort to these kinds of measures has augmented or enhanced the utilisation of the criminal law. This has occurred on several levels. Emergency legislation may make it easier procedurally to prosecute for offences such sedition and mutiny. This may establish political and legal precedents for application long after the emergency has subsided. On another level, actions by governments, security agencies and police may be calculated to provoke outraged political opposition and resistance that can then be dealt with by criminal prosecutions.

  Hence, it is essential, in order to provide an accurate picture of the role of crimes against the state, to consider, at least in outline, the operation of some of these executive powers and to review some relevant historical experiences. As hopefully will become clear, it would be artificial to assess the part played by crimes against the state in isolation from the capacity of governments to activate other extraordinary measures.

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  Human Rights in Crisis

  The International System for Protecting Rights During States of Emergency

  • Joan M. Fitzpatrick(Author)
  • 2018(Publication Date)
  • University of Pennsylvania Press Anniversary Collection

    (Publisher)

  46 U.N. ESCOR Comm'n on Hum. Rts.at paras. 31-77, U.N. Doc. E/CN.4/1990/25 (1990) [hereinafter Ermacora Report], 33. Clinton Rossiter notes of Martial Law in England prior to 1914, the almost complete lack of institutional status ... the absence of statutory foresight for its initiation and use. ROSSITER, supra note 3, at 141. As Rossiter explains: Given a condition of emergency in England that would call for a declaration of the state of siege in France, the government (or a local magistrate or military commander) has the power to do just about the same things that French officials can do under the state of siege. T h e authority to adopt whatever arbitrary measures are necessary to restore public order proceeds di-rectly from the common law right and duty of the Crown and its subjects to 'repel force by force in the case of invasion or insurrection, and to act against rebels as it might against invaders' [citations omitted]. Id. at 142. 34. Martial Law was declared by Royal Decree on 5 June 1967, in response to the war with Israel. AMNESTY INTERNATIONAL, JORDAN: HUMAN RIGHTS PROTECTION AFTER THE STATE OF EMERGENCY 6 (1990). Martial Law Directives under this declaration provide, inter alia, for the appointment of the General Military Governor (currently the Prime Minister) (Art. 2); unappealability of orders by the Martial Law General (Art. 5); and the establishment of a Martial Law Court (Art. 6). Martial Law is declared by Royal Decree under Article 125 of the Constitution of the Hashemite Kingdom of Jordan of 1952. Id. at 6-9. In 1967, when Martial Law was declared, Jordan was already under a state of emergency that had been imposed in 1939, thus effectively introducing a dual state of emergency. Id. at 4. Martial Law was frozen in December 1989, with the announced intention of gradually eliminating it. Id. at 1. But by the end of 1990, the parliament had not finished drafting the necessary legislation.

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  Military Intervention in Democratic Societies

  • Peter J. Rowe, Christopher J. Whelan(Authors)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  Charge to the Bristol Grand Jury (1832) 5 C. & P. 261) there is ‘in cases of disturbance where the civil authority has not asked for help’ (Manual of Military Law, 1968, Part II, Section V, para. 3) and ‘in very exceptional circumstances for grave and sudden emergencies’ (Queen’s Regulations for the Army 197 5, J11.002) which have arisen ‘a duty to take action which is not laid upon other citizens, except magistrates and peace officers’ (para. 3). In such circumstances the commander is to act on his own responsibility (J11.002). Moreover, even in less dire situations, the military commander must judge for himself whether aid to the civil power is indeed necessary (paras. 3, 4), and whether use of force is justified (para. 5) despite contrary directions from the civil authority (para. 3; see, Whelan, pp. 120-4). There is at least one precedent for a military commander exercising independent judgment in these circumstances. In 1908, Haldane reported to the Select Committee on ‘Employment of Military in Cases of Disturbance (Pari. Papers, H.C. 236, vol. vii, p. 3651) that a military commander, with the concurrence of the Chief Constable of Hampshire, refused a request from the mayor of Winchester to use his troops to deal with rioters (see Bramali, pp. 82-3).

  Thus, although Mark has stated (p. 91) that should military aid be sought by the police today ‘There is no question of one service coming under command of the other’, Bramali is historically more correct in his analysis that ‘in a real breakdown of order ... once called in, command would then devolve to the military commanding officer’ (p. 74). As Jeffery has observed (p. 58) ‘when the army is called in actively to support the government, both the responsibility and, perhaps more significantly, the initiative for action may shift away from civilians to soldiers themselves’.

  In the United States, under 32 C.F.R. sec. 215 (4)(c)(1)(i), military force may be used

  to prevent loss of life or wanton destruction of property, and to restore government functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations.

  Yet, it is clear that federal military intervention may occur in a state without a request from that state, and the judgment as to whether the state can control the situation may even be made by military officials. The discretion to invoke the ‘inherent legal rights of the U.S. Government’ is not reserved to the President. Although the President will ‘normally’ issue an Executive Order directing the Secretary of Defense to provide for the restoration of law and order in a specific state or locality, in cases of ‘sudden and unexpected emergencies ... which require that immediate action be taken’, no civilian higher than the Secretary or Under Secretary of the Army need be involved in the decision. He is fully responsible, as ‘Executive Agent’ for the Department of Defense, for the deployment of the military in civil disturbances. Moreover, the operational command structure provides for a Steering Committee, comprising military officers. Defense Department officials and the Deputy Attorney General of the United States, to advise and assist the Executive Agent. Actual operational control, however, is exercised by designated task force commanders; and planning, coordination and direction is the responsibility of a ‘Directorate of Military Support’ with a joint service staff under the Chief of Staff, U.S. Army. As Engdahl observes (p. 33):

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