Cameron Miranda
Martial law is a broad and often elusive term that refers to the temporary replacement of civilian government by military rule and the suspension of civil liberties and legal processes. While there is no universal definition, it is often declared in times of war, rebellion, civil unrest, or natural disaster. During martial law, military personnel are given the authority to enforce the law, which may include direct physical contact with offenders. In the context of being shot, there is historical precedence; during the imposition of martial law in Poland in 1981, 9 miners were shot and killed by the police force during the pacification of the striking Wujek Coal Mine.
Characteristics and Values associated with Martial Law
| Characteristics | Values |
|---|---|
| Who can declare it? | In the US, martial law may be declared by proclamation of the President or a State governor, but such a formal proclamation is not necessary. Nearly every state has a constitutional provision authorizing the government to impose martial law. |
| Legal basis | The US Constitution does not make a specific provision for the imposition of martial law. However, it is justified when civilian authority has ceased to function, is completely absent, or has become ineffective. |
| Enforcement | Military members in a Title 10 federal activation status may not enforce civilian law unless authorized by the President, US Constitution, or Congress. Enforcement falls into two categories: direct (enforcing the law and engaging with offenders) and indirect (providing aid to civilian law enforcement agencies). |
| Scope | Martial law can be declared for a specific locality or the entire country. |
| Duration | Martial law can continue for a specified amount of time or indefinitely. |
| Civil liberties | Standard civil liberties may be suspended for as long as martial law continues. |
| Use of force | There are very specific rules for the use of force by military personnel during martial law. |
| Historical examples | Martial law has been declared nine times since World War II. It was declared nationally twice by a President during wartime: first by Abraham Lincoln during the Civil War and then by local military officials in Hawaii during World War II. Other examples include Chicago after the Great Chicago Fire of 1871 and San Francisco after the 1906 earthquake. |
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What You'll Learn
Who can declare martial law?
The power to declare martial law varies across different countries and governments. Here is a look at who can declare martial law in different contexts.
United States
The US Constitution does not explicitly define or grant the power to declare martial law to any branch of the government. However, historically, martial law has been declared by state governors, the US President, and Congress.
At the federal level, there is ambiguity regarding who can declare martial law. While some scholars believe the President has the executive power to declare it, others argue that the President needs congressional authorization. The US Constitution vests power in the legislative branch, and Congress might be the only governmental branch that can legally declare martial law. The Supreme Court has also never explicitly stated whether the President can unilaterally declare martial law or if Congress's authorization is required.
On the state level, nearly every state has a constitutional provision authorizing the governor to impose martial law within the state's borders.
Canada
In Canada, the Parliament, through the War Measures Act, had the power to assume emergency powers, falling short of declaring martial law, as the military did not administer justice. The act was invoked during World War I, World War II, and the October Crisis of 1970. In 1988, the act was replaced by the Emergencies Act.
India
In India, the sole mention of martial law in its constitution is in Article 34, which gives Parliament the power to indemnify persons regarding acts done in territories where martial law was in force. The Supreme Court of India has declared that certain rights of life and liberty are natural rights that cannot be curbed by the state. During the British Raj, martial law was declared in the Defense of India Act, 1915, and 1939, and in most of Punjab in 1919.
Philippines
In the Philippines, martial law was declared by President Ferdinand Marcos in 1972 to counter rising disorder caused by violent student demonstrations and alleged threats of insurgency.
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What happens when martial law is in effect?
Martial law is the temporary replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. It is often declared in times of war, rebellion, civil unrest, natural disasters, or military coups d'état. During martial law, the military commander of an area or country has virtually unlimited authority to make and enforce laws, and standard civil liberties may be suspended.
When martial law is in effect, the normal American law enforcement and legal system is replaced by a stricter set of laws and punishments that are controlled by the military or the executive branch of the government. The normal checks and balances built into the Constitution are suspended, and the military commander has the authority to make and enforce laws without the usual restrictions of civilian courts. This can include imposing curfews, censorship, food rationing, and travel bans, as well as the use of force and direct law enforcement by military personnel.
In the United States, martial law may be declared by proclamation of the President or a State governor, but a formal proclamation is not necessary. While the U.S. Constitution does not specifically provide for the imposition of martial law, nearly every State has a constitutional provision authorizing the government to impose it. Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials, and it has been challenged in court multiple times.
The implementation of martial law often arises from necessity rather than legal right, and the legal justification for it is often based on the common law doctrine of necessity. While the exact scope and limits of martial law are debated and unclear, it is generally understood to involve the use of the military for law enforcement and the suspension of civilian rule.
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What is the history of martial law in the US?
Martial law in the United States refers to times when a region, state, city, or the entire country was placed under the control of a military body. It involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and standard civil liberties are suspended.
The history of martial law in the US is complex and dates back to the 19th century. While the US Constitution does not explicitly provide for the imposition of martial law, nearly every state has a constitutional provision authorizing the government to impose it. The power to declare martial law rests with the President or a State governor, but a formal proclamation is not necessary. The President's authority to declare martial law has been challenged in court several times, with rulings indicating that it may be unconstitutional in areas where local courts are still functional.
Throughout US history, martial law has been imposed at least 68 times, mostly in limited, local areas. Notable instances of martial law include:
- President Abraham Lincoln's imposition of Congressionally authorized martial law in Kentucky, Maryland, and Missouri during the Civil War.
- The use of martial law by local military officials in Hawaii during World War II, which was later expanded by Franklin Roosevelt's executive order to incarcerate Japanese-Americans on the West Coast.
- The declaration of martial law by city mayors and generals within states' National Guard forces, such as in Chicago after the Great Chicago Fire of 1871 and in San Francisco after the 1906 earthquake.
- The use of martial law by renegade local leaders to avoid arrest or challenges to their authority, such as in Nauvoo, Illinois, during the Illinois Mormon War, and in Utah during the Utah War.
- The imposition of martial law by state governors during labour disputes, such as in Colorado during the Colorado Coalfield War in 1914 and in Oklahoma during a dispute over oil production limits in 1932.
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What are the rules for use of force by military personnel?
Martial law is the temporary substitution of civilian government by military rule and the suspension of civilian legal processes for military powers. It is usually invoked in times of war, rebellion, or natural disaster. During martial law, military personnel are given the authority to enforce laws, and standard civil liberties may be suspended.
While there is no universal definition of martial law, it often involves the use of the military for law enforcement. The specific rules regarding the use of force by military personnel during martial law can vary depending on the country and the circumstances. However, some general principles and guidelines exist:
- Military personnel should only use force when necessary and proportionate to the situation. The use of force should be a last resort, and the minimum force necessary should be employed.
- In most cases, military personnel are prohibited from using deadly force unless it is deemed necessary for self-defence or the defence of others in imminent danger of death or serious injury.
- Warning shots may be fired to control a situation without resorting to deadly force, but only if innocent bystanders can be avoided.
- The use of firearms should be regulated and controlled, with specific guidelines on the types of firearms and ammunition permitted.
- Military personnel should receive proper training and instructions on the regulations regarding the use of force and firearms.
- The use of force and firearms by military personnel should respect human rights and ethical considerations.
- There should be accountability and a system of reporting in place for any use of force or firearms by military personnel.
For example, in the United States, the Posse Comitatus Act prohibits federal forces from assisting in domestic law enforcement unless directed by the President or authorised by an act of Congress. Additionally, the Department of Defense personnel has limitations on their involvement in civilian law enforcement activities.
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Can martial law be challenged in court?
Martial law is the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. It involves the suspension of civil law, civil rights, and habeas corpus, and the application or extension of military law or military justice to civilians. While there is no universal definition of martial law, it often refers to the use of the military for law enforcement.
In the United States, martial law may be declared by proclamation of the President or a State governor, but a formal proclamation is not necessary. Although the U.S. Constitution does not specifically provide for the imposition of martial law, nearly every State has a constitutional provision authorizing the government to impose it. The power of martial law, which was once considered nearly absolute, is now subject to certain limitations. For example, civilians may not be tried by military tribunals as long as civilian courts are functional.
Despite the limitations on the power of martial law, a military commander's authority under martial law is virtually unlimited within the bounds of court decisions. This has led to instances of martial law being challenged in court. For example, President Lincoln's imposition of martial law through the suspension of habeas corpus was ruled unconstitutional by the Supreme Court in Ex parte Milligan (1866). The court held that the suspension of habeas corpus was unlawful in areas where local courts were still in session.
Additionally, the two national implementations of martial law during wartime by President Abraham Lincoln and local military officials in Hawaii during World War II were also challenged in court. In both cases, the courts ruled that portions of the implementations were unconstitutional or too broadly applied. These examples demonstrate that while martial law can provide extraordinary powers to military authorities, it is not without checks and balances, and its imposition can be challenged and reviewed by the courts.
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Frequently asked questions
Martial law is the temporary replacement of civilian government by military rule and the suspension of civilian legal processes. Military members in a Title 10 federal activation status may not be involved in direct civilian law enforcement activities unless expressly authorized by the president, U.S. constitution, or act of Congress. There are very specific rules for the use of force by military personnel. However, there have been instances where people have been shot and killed during martial law, such as the 9 miners shot and killed by the police force during the pacification of the striking Wujek Coal Mine in Poland.
In the United States, martial law may be declared by proclamation of the President or a State governor, but such a formal proclamation is not necessary. Although the U.S. Constitution makes no specific provision for the imposition of martial law, nearly every state has a constitutional provision authorizing the government to impose martial law. State officials do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.
During martial law, standard civil liberties may be suspended. Curfews, censorship, food rationing, and travel bans may be imposed. Law enforcement support during martial law falls into two broad categories: direct and indirect. Direct support involves enforcing the law and engaging in physical contact with offenders, such as performing search operations, making arrests, and pursuit. Indirect support includes logistics, transportation, and training assistance.
