Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. 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. Most often, martial law is declared in times of war or emergencies such as civil unrest and natural disasters. Alternatively, martial law may be declared in instances of military coups d'état.Lieber, Francis and Lieber, G. Norman. To Save the Country: A Lost Treatise on Martial Law. Edited by Will Smiley and John Fabian Witt, Yale University Press, 2019. JSTOR, . Accessed 30 March 2023.
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. Across history, the phrase "martial law" has been used to refer to a "wide variety of actions, practices, or roles for the military", and thus lacked (and currently lacks) a concrete definition. References to martial law date back to 1628 England, when Sir Matthew Hale described martial law as, "no Law, but something indulged rather than allowed as a Law." 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 while some countries have provisions explicitly permitting the use of martial law, many do not. 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, or some variation of it.
Common law doctrine of necessity One legal theory most frequently associated with martial law is the common law doctrine of necessity. While many countries – for example, the United States – 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. Countries such as Pakistan have implemented this rationale as well.Mark M. Stavsky, The Doctrine of Necessity in Pakistan, 16 Cornell Int. L. J. 2 (1983) https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1128&context=cilj.
Use Martial law can be used by governments to enforce their rule over the public, as seen in multiple countries listed below. Such incidents may occur after a coup d'état (Thailand in 2006 and 2014, and Egypt in 2013); when threatened by popular protest (China, Tiananmen Square protests of 1989); to suppress political opposition (martial law in Poland in 1981); or to stabilize insurrections or perceived insurrections. Martial law may be declared in cases of major natural disasters; however, most countries use a different legal construct, such as a state of emergency.
Martial law has also been imposed during conflicts, and in cases of occupations, where the absence of any other civil government provides for an unstable population. Examples of this form of military rule include post–World War II reconstruction in Germany and Japan; the recovery and reconstruction of the former Confederate States of America during the Reconstruction Era in the United States of America following the American Civil War; and German occupation of northern France between 1871 and 1873 after the Treaty of Frankfurt ended the Franco-Prussian War. The British Empire commonly used martial law when insurgencies occurred in its colonies, such as the Arab Revolt in Palestine.
Typically, the imposition of martial law accompanies curfews; the suspension of civil law, civil rights, and habeas corpus; and the application or extension of military law or military justice to civilians. Civilians defying martial law may be subjected to military tribunal (court-martial).
By country Africa Egypt
In Egypt, states of emergency were in effect almost continuously from 1967 to 2021. A state of emergency gives military courts the power to try civilians and allows the government to detain for renewable 45-day periods and without court orders anyone deemed to be threatening state security. Public demonstrations are banned under the legislation.
During Hosni Mubarak's presidency, parliament had renewed emergency laws every three years since they were imposed. The legislation was extended in 2003 and were due to expire at the end of May 2006; plans were in place to replace it with new anti-terrorism laws. After the Dahab bombings in April of that year, it was renewed for another two years.Simon Apiku. Egypt to lift 25-year-old emergency laws. Middle East On-line, 23 March 2006.Joelle Bassoul. Egypt renews state of emergency for two years. Middle East On-line, 1 May 2005. In May 2008 there was a further extension to June 2010.Adam Morrow and Khaled Moussa al-Omrani. "Egypt: Despair Over Two More Years of Martial Law." Inter Press Service News Agency. In May 2010, the state of emergency was further extended, albeit with a promise from the government to be applied only to "Terrorism and Drugs" suspects. On 10 February 2011, during the uprising against his rule, Mubarak promised the deletion of the relevant constitutional article regarding the emergency law in an attempt to please the mass number of protesters that demanded him to resign. The following day, he stepped down and handed control of the country to the Supreme Council of the Armed Forces. It meant that the presidential executive powers, the parliamentary legislative powers and the judicial powers all transferred directly to the military system which may delegate powers back and forth to any civilian institution within its territory.
The military issued in its third announcement the "end of the State of Emergency as soon as order is restored in Egypt". Before martial law, the Egyptian parliament under the constitution had the civilian power to declare a state of emergency. When in martial law, the military gained all powers of the state, including to dissolve the parliament and suspend the constitution as it did in its fifth announcement. Under martial law, the only legal framework within the Egyptian territory was the numbered announcements from the military. These announcements could for instance order any civilian laws to come back into force. The military announcements (communiqués) were the de facto only constitution and legal framework for the Egyptian territory. It meant that all affairs of the state were bound by the Geneva Conventions.
Under the current president Abdel Fattah el-Sisi, a series of constitutional amendments passed in 2019 granted the military the authority to intervene in national politics to "preserve the constitution and democracy, protect the basic principles of the state and its civil nature, and protect the people's rights and freedoms". The armed forces were separately granted policing responsibilities to arrest civilians and "protect public and vital facilities".
Mauritius Mauritius is known as being a "Westminster" style of democracy but a peculiar system that was imposed in Mauritius during a period of civil unrest in 1968 as an emergency measure, has never been repealed and is still used by the police force there to this day. The system, which has no apparent foundation in the constitution of Mauritius, enables the police to arrest without having to demonstrate reasonable suspicion that a crime has been carried out but simply on the submission of "provisional information" to the magistrate. The accused is then placed on remand or bail and required to report to the police or the court on a regular basis, sometimes every day. There are examples of this system being used to intimidate or coerce individuals in civil litigations.
Americas Canada
The War Measures Act was a Parliament of Canada statute that allowed the government to assume sweeping emergency powers, stopping short of martial law, i.e., the military did not administer justice, which remained in the hands of the courts. The act was invoked three times: during World War I, World War II, and the October Crisis of 1970. In 1988, the War Measures Act was replaced by the Emergencies Act, which saw its first invocation in February 2022 amidst the Freedom Convoy protests.
During the colonial era, martial law was proclaimed and applied in the territory of the Province of Quebec during the invasion of Canada by the Continental Army during the American Revolutionary War in 1775–1776. It was also applied twice in the Province of Lower Canada during the 1837–1838 insurrections. On 5 December, following the events of November 1837, martial law was proclaimed in the district of Montreal by Governor Gosford, without the support of the Legislative Assembly of Lower Canada. It was imposed until 27 April 1838. Martial law was proclaimed a second time on 4 November 1838, this time by acting Governor John Colborne, and was applied in the district of Montreal until 24 August 1839.Françoise Dubuc. "La Loi martiale telle qu'imposée au Québec en 1837 et en 1838", in Les Patriotes de 1837@1838, 20 May 2000, retrieved 10 May 2009
United States
In the United States, martial law has been declared for a state or other locality under various circumstances including after a direct foreign attack (Hawaii after the Japanese attack on Pearl Harbor; New Orleans during the Battle of New Orleans); after a major disaster (Chicago after the Great Chicago Fire of 1871; San Francisco after the earthquake of 1906); and in response to chaos associated with protests and mob action (San Francisco during the 1934 West Coast waterfront strike; Montgomery, Alabama, following the mob actions against the Freedom Riders). It has also been declared by renegade local leaders seeking to avoid arrest or challenges to their authority (Nauvoo, Illinois by Joseph Smith during the Illinois Mormon War and Utah by Governor Brigham Young during the Utah War).
The martial law concept in the United States is closely tied with the right of habeas corpus, which is in essence the right to a hearing on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is related to the imposition of martial law. Article 1, Section 9 of the U.S. Constitution states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." There have been many instances of the use of the military within the borders of the United States, such as during the Whiskey Rebellion and in the South during the Civil Rights Movement, but these acts are not tantamount to a declaration of martial law.
In United States law, martial law is limited by several court decisions handed down between the American Civil War and World War II. In 1878, Congress passed the Posse Comitatus Act, which, depending on the circumstances, can forbid U.S. military involvement in domestic law enforcement without congressional approval.(, original at )
The legality of the implementation of martial law was examined in 1866, in the court case Ex parte Milligan, 71 U.S. 2 (1866).Ex parte Milligan, 71 U.S. 2 (1866). Through this case, the Supreme Court established that trying civilians in military tribunals was unconstitutional unless there were no civilian courts available. Today, the ability to declare martial law over the United States is not explicitly granted in the Constitution. Despite this, martial law has been declared at least 68 times in the United States.