Military Law And Civilians: Who Does It Affect?

Military law and civilian law are two distinct legal systems, each with its own rules and regulations. Military law, as defined by the Uniform Code of Military Justice (UCMJ), applies specifically to individuals serving in the armed forces, encompassing active-duty personnel, reservists, retirees, and in some cases, civilians accompanying the military. On the other hand, civilians are generally governed by civilian law and are not subject to military law unless specific conditions are met. So, when does military law apply to civilians, and what are the implications?

Civilians are not subject to military law

Military law is a body of law that applies to members of the armed forces. When someone joins the military, they agree to abide by a set of rules, regulations, and laws that are distinct from those that apply to civilians. Military law includes specific sets of laws, such as the Uniform Code of Military Justice (UCMJ), which contains a list of crimes and offenses, as well as rules for trials and sentencing. The UCMJ applies to all active-duty personnel, activated reservists, Guard members, and retirees, regardless of their location.

While military personnel must follow civilian laws, civilians are not bound by military laws. Civilians who find themselves in a military setting, such as a base, are still subject only to civilian laws and cannot be tried under military laws. For example, if a civilian is arrested for driving under the influence on a military base, they would be prosecuted in a civilian federal court rather than under military law, as they never agreed to abide by military laws.

In certain rare circumstances, civilians may be subject to military jurisdiction and tried in a military court. These special circumstances include the declaration of martial law, where military authority replaces civilian authority, and specific provisions of the Law of War, also known as International Humanitarian Law (IHL). During times of war or when civilian courts are closed, military courts may be used to try civilians as stipulated under the UCMJ. Additionally, the UCMJ covers civilians employed by or accompanying the armed forces outside the continental United States (with some exceptions).

In summary, while military law governs the conduct of those in the armed forces, civilians are generally not subject to these laws. Civilians may only be tried under military law in exceptional circumstances, such as during martial law or in specific situations outlined by the UCMJ.

Military law can be applied to civilians under martial law

Military law is a body of law that governs the members of the armed forces. Military personnel are subject to different duties and expectations than civilian citizens. Military law does not apply to civilians unless a nation declares "martial law".

Martial law is the temporary substitution of military authority for civilian rule. It involves the military taking over the police, courts, and legislature from the civilian government. Martial law is usually invoked in times of war, rebellion, or natural disaster, or in the case of a military coup d'état. During martial law, military commanders have the authority to make and enforce laws, and civilians accused of crimes may be tried in military tribunals instead of civilian courts.

In the United States, martial law has been declared at least 68 times since the country's founding in 1776. However, absent a declaration of martial law, US civilians generally cannot be prosecuted under a system of military law. The Supreme Court has explicitly held that trying civilians in military tribunals is unconstitutional unless civilian courts are unavailable.

The declaration of martial law in the US falls into a grey area. While the US Constitution does not explicitly mention martial law, it does grant the President, as Commander-in-Chief, the authority to create military commissions and tribunals. On the other hand, Congress is the sole body with the power to suspend the writ of habeas corpus, which is often associated with the imposition of martial law. The debate over which branch of government has the authority to declare martial law continues.

In summary, while military law generally does not apply to civilians, there are special circumstances, such as the declaration of martial law, where civilians may be subject to military justice.

Civilians employed by the armed forces can be subject to military law

The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. It establishes a comprehensive set of rules and procedures that govern the conduct and discipline of military personnel. While the UCMJ primarily applies to those in uniform, there are instances where civilians can be subject to its provisions.

One such instance is when civilians are "serving with, employed by, or accompanying the armed forces without the continental limits of the United States." This means that civilians who work for or alongside the military in overseas locations may be subject to military law. For example, this could include civilians who worked with the US military during interventions in countries like Iraq or Afghanistan. In these cases, civilians are considered to be operating within the sphere of military jurisdiction and can be tried by military courts, known as courts-martial, if they commit an offense.

Another circumstance where military law can apply to civilians is when a nation declares "martial law." Martial law refers to a state of emergency where civilian authority is replaced by military authority. In such situations, the military assumes control of essential functions typically handled by civilian institutions, including law enforcement, courts, and legislative powers. During periods of martial law, civilians may be tried and punished by military courts for crimes deemed to undermine the government or breach the peace.

It is important to note that the application of military law to civilians is generally limited and occurs only in specific contexts, such as those mentioned above. In most cases, civilians are subject to civilian laws and are not governed by the UCMJ. However, there may be situations where civilians employed by or accompanying the armed forces find themselves within the scope of military jurisdiction, and it is crucial for them to be aware of the potential implications and seek appropriate legal guidance if needed.

Civilians can be tried in military court in rare circumstances

Civilians are generally not subject to military law and cannot be prosecuted under a system of military law. However, there are rare circumstances in which civilians can be tried in a military court. These circumstances include:

Declaration of Martial Law

If a nation declares "martial law", military authority replaces civilian authority. This means that the military takes over the functions typically carried out by civilian institutions, including the police, courts, and legislature. In such a scenario, military courts may be used to try civilians. However, it is important to note that the declaration of martial law is a rare and controversial act, and the authority to declare it is debated.

Employment by the Armed Forces

The Uniform Code of Military Justice (UCMJ) stipulates that military law can apply to civilians "serving with, employed by, or accompanying the armed forces without the continental limits of the United States—except in Puerto Rico, the Panama Canal Zone, the Hawaiian Islands, and the Virgin Islands." This means that civilians who work with or accompany the military in certain locations may fall under military jurisdiction.

International Humanitarian Law (IHL)

Also known as the Law of War, IHL aims to protect all combatants, civilians, internationally displaced persons, and prisoners of war during armed conflict. The Geneva Conventions, as an internationally recognized treaty, state that prisoners of war (POWs) on trial for war crimes must undergo the same procedures as the military forces holding them. Therefore, civilians accompanying a staff of US Armed Forces personnel in the field may be subject to a court-martial.

War and Contingency Operations

In 2006, Congress provided for court-martial jurisdiction over some civilians who are serving with or accompanying an armed force in the field during a declared war or a contingency operation. For example, this would include civilians who worked in Iraq or Afghanistan during US military interventions in those countries.

While these circumstances can lead to civilians being tried in a military court, it is important to note that such cases are rare. Civilians facing legal proceedings under military law have the right to a military defence lawyer or a civilian defence attorney.

Military personnel are subject to two sets of laws

All active-duty personnel, activated reservists, guard members, and retirees are subject to the UCMJ at all times, regardless of their location. This means that military members can be punished under the UCMJ for crimes committed while off-duty and outside of a military installation. For example, a service member who gets into a bar fight off-base can face charges under the UCMJ, in addition to criminal charges under the laws of the state where the incident occurred.

In addition to the UCMJ, military personnel must also abide by civilian laws, both on and off military installations. For instance, they must follow laws such as not trespassing, paying taxes, and obeying speed limits. However, civilians are not subject to military law, even if they are on a military base. A civilian who commits a crime on a military base would be prosecuted in a civilian federal court rather than under military law.

The overlap between military and civilian laws can result in service members facing two different punishments for the same crime, which is not considered double jeopardy. For example, a marine charged with driving while impaired in North Carolina would be prosecuted in state court, but they could also face a court-martial or non-judicial punishment for failing to follow a lawful order. As a result, military personnel must ensure they are complying with both sets of laws to avoid legal consequences that can significantly impact their careers.

Frequently asked questions