Gavin Howe
Martial law is a complex and often controversial topic that has been invoked in various countries throughout history, sometimes with far-reaching consequences. It refers to a state of emergency where military authorities take control, assuming jurisdiction over civilians and suspending certain civil liberties. While the imposition of martial law is intended to restore order during emergencies, civil unrest, or natural disasters, it has also been used to suppress political opposition, human rights abuses, and economic downturns. The legality and implications of martial law vary across different countries and their constitutions, and it remains a subject of ongoing debate and interpretation.
| Characteristics | Values |
|---|---|
| Who can impose martial law | The US President, US Congress, and nearly every state governor |
| Instances of martial law in the US | New Orleans during the Battle of New Orleans, Great Chicago Fire of 1871, 1906 San Francisco earthquake, Omaha race riot of 1919, 1920 Lexington riots, Nauvoo, Illinois during the Illinois Mormon War, Utah during the Utah War, 1934 West Coast waterfront strike, Hawaii after Japan's attack on Pearl Harbor, Civil Rights Movement in response to the Cambridge riot of 1963 |
| Legal theory associated with martial law | Common law doctrine of necessity |
| Rights that can be suspended under martial law | Habeas corpus, civil rights |
| Rights that cannot be suspended under martial law | Constitutional rights |
| Martial law imposition | Martial law can be imposed for a specified amount of time or indefinitely |
| Instances of martial law outside the US | Thailand in 2006 and 2014, Egypt in 2013, China during the Tiananmen Square protests of 1989, Poland in 1981 |
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What You'll Learn
The right to a hearing and trial
However, the imposition of martial law can impact this right. During periods of martial law, standard civil liberties may be suspended, and military commanders are granted extensive authority to make and enforce laws. In such times, the right to a hearing and trial can be compromised, as civilian courts may not function as they normally would.
Historically, there have been instances where martial law was declared, and individuals were arrested and detained without access to a trial. For example, during the West Virginia Coal Wars (1920-1921), martial law was imposed, and union miners were imprisoned without any form of trial. Similarly, in the early 1950s under Israeli martial law, Arab citizens faced administrative detentions and expulsions without a clear legal process.
Despite these examples, it is important to note that even under martial law, constitutional rights cannot be suspended or violated, according to US law. The Supreme Court has ruled that the declaration of martial law and the suspension of habeas corpus are unconstitutional if local courts remain operational. This ruling ensures that the right to a hearing and trial is protected, even during periods of martial law.
In conclusion, while martial law can impact the timely exercise of the right to a hearing and trial, it does not nullify this fundamental right. The US legal system recognizes the importance of habeas corpus, and judicial review processes exist to uphold this right even during exceptional circumstances.
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Human rights abuses by the military
The imposition of martial law is often associated with the suspension of civil liberties and human rights. While the declaration of martial law may be necessary during emergencies, civil strife, natural disasters, or war, it has, unfortunately, been exploited by some governments and military forces to commit human rights abuses.
One example of human rights abuses by the military during a period of martial law occurred in the Philippines under the rule of Ferdinand Marcos. During this time, the military committed human rights violations, including the use of torture in intelligence gathering and forced disappearances. The excesses of the Marcos regime and the human rights abuses by the military led to widespread dissent, culminating in the 1986 People Power Revolution that overthrew Marcos.
In Iraq, following the 2003 US invasion, there have been concerns and controversies surrounding human rights abuses by various parties, including US-led coalition forces, Iraqi government forces, and insurgents. Amnesty International reported human rights abuses by Kurdish political parties' armed and special forces, including the killing of two Assyrian Christian politicians in 1993. The UN Assistance Mission for Iraq's Human Rights Office (UNAMI HRO) stated in 2007 that religious minorities faced "increasing threats, intimidation, and detentions" by Kurdish intelligence and security forces. Additionally, the US State Department reported that Kurdish authorities in northern Iraq abused and discriminated against minorities, including Turkmen, Arabs, Christians, and Shabak.
In Mali, military operations to counter Islamist armed groups have resulted in serious human rights violations. Malian forces have committed extrajudicial killings, enforced disappearances, torture, and arbitrary arrests against individuals accused of supporting these groups. Human Rights Watch documented three common graves believed to contain the remains of at least 14 men executed after being detained by Malian soldiers. The Malian government has been criticized for failing to hold its security forces accountable, emboldening abusive soldiers to act with impunity.
It is important to note that the declaration of martial law does not inherently justify human rights abuses. However, the concentration of power in the hands of the military during such periods can create an environment conducive to the commission of human rights violations if proper checks and balances are not in place.
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The right to travel and free movement
Martial law is often declared in times of war, civil unrest, or emergencies, such as natural disasters. It can be used by governments to enforce their rule over the public and maintain control during chaotic events, such as riots or protests. In such situations, standard civil liberties may be suspended, and human rights abuses can occur.
In the United States, there have been instances where martial law was declared, and restrictions on movement were imposed. For example, during the War of 1812, General Andrew Jackson imposed martial law in New Orleans, implementing strict curfews and travel restrictions on all residents. Brigham Young, in Utah, also declared martial law, stating that "no person shall be allowed to pass or repass into, through or from this territory without a permit from the proper officer." Similarly, during the Battle of New Orleans, New Orleans was placed under martial law.
In other countries, martial law has also been associated with restrictions on the right to travel and free movement. In Syria, when the Baath Party seized power in 1963, the prime minister, acting as the martial law governor, was granted extraordinary powers. These powers included the ability to restrict meetings, residence, travel, and passage in specific places or at particular times. A nationwide travel ban was imposed in Poland during the period of martial law in 1981, and permits were required for travel in Israel during the period of martial law that affected its Arab citizens until 1966.
The imposition of travel restrictions during martial law can vary depending on the specific circumstances and the authorities imposing them. However, it is important to note that even in times of emergency, prolonged restrictions on the right to travel and free movement may be considered a violation of international law, as seen in the case of Syria's extended state of emergency.
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The right to protest
Martial law is often declared in times of war, civil unrest, or natural disasters, and it can result in the suspension of standard civil liberties. In the United States, martial law has been imposed in response to chaos associated with protests and rioting, such as the 1934 West Coast waterfront strike, the Omaha race riot of 1919, and the Cambridge riot of 1963. In these cases, local leaders declared martial law to protect themselves from mob violence and to restore order.
In some cases, martial law has been used to suppress political opposition or in response to popular protests. For example, in China during the Tiananmen Square protests of 1989, and in Poland in 1981, martial law was imposed to enforce the government's rule and suppress dissent. Similarly, in Myanmar's Yangon region, martial law was declared after security forces killed over sixty-five protestors in Hlaingtharyar, with military tribunals sentencing more than 100 people to death.
It is important to note that the imposition of martial law does not always result in the complete suspension of the right to protest. In some cases, protests may still occur even under martial law, as seen in Tehran's Jaleh Square during the Iranian revolution. However, these protests often face a heightened risk of violence and the use of deadly force by the military or law enforcement.
While martial law can restrict the right to protest by imposing curfews, requiring permits, or prohibiting assemblies, it does not necessarily eliminate this right entirely. The specific restrictions and their enforcement vary depending on the jurisdiction and the circumstances under which martial law is declared.
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The right to due process
The imposition of martial law can indeed result in the suspension of certain rights, including the right to due process. This is because martial law is often declared in times of war or emergencies, civil unrest, or natural disasters, and the military's primary objective is to restore order and stability.
In times of martial law, military commanders hold significant authority, but their actions are subject to judicial review after the fact. For example, in the case of Sterling v. Constantin, the Court clarified that executive actions during emergencies must have a "direct relation" to quelling disorder and preventing its continuance.
While martial law can infringe on the right to due process, it is not without constraints. In the United States, the Posse Comitatus Act forbids the US military from engaging in domestic law enforcement without congressional approval. Additionally, civilians cannot be tried by military tribunals as long as civilian courts are functional, as seen in the Milligan case. These limitations demonstrate that while martial law may impact certain rights, it operates within a framework of legal constraints and judicial oversight.
It is worth noting that the interpretation and implementation of martial law vary across different countries and legal systems. Some nations, like the United States, lack an explicit constitutional right to declare martial law, while others, like Pakistan, have famously invoked martial law to enforce their rule. The effectiveness and legitimacy of martial law are often influenced by the specific circumstances, the nature of governance, and the respect for human rights within a particular nation.
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Frequently asked questions
Martial law is a legal entity that allows the military to take the place of civilian government and exercise jurisdiction over civilians in a particular area. It is often declared in times of war, emergencies, civil unrest, natural disasters, or military coups.
While martial law can suspend standard civil liberties, it cannot take away or violate constitutional rights. For example, individuals detained by the military under martial law can petition for a writ of habeas corpus, which is the right to a hearing and trial on lawful imprisonment.
Martial law has been declared in the US in a limited number of circumstances, such as after the Great Chicago Fire of 1871, during the Civil Rights Movement in response to the Cambridge riot of 1963, and in New Orleans during the Battle of New Orleans.
