What Is Martial Law?

Martial law is a law administered by the military rather than a civilian government. Martial law may be declared in an emergency or response to a crisis, or to control occupied territory.

Martial law is colloquially understood as when the military, and not the judicial system, acts as the supreme power and armed forces control all aspects of government. In instances of martial law, the military takes over the police powers of a local government. The military would have command of civilian governments.

While not a cause or effect of martial law, the suspension of habeas corpus is often spoken of in tandem with martial law.

Legally, the suspension of habeas corpus is only constitutional in situations of insurrection or invasion.

During the coronavirus pandemic, many courts are choosing to hold sessions via video conference so they remain in operation. This protects people’s ability to bring a habeas corpus petition to a judge.

“I think advances in technology probably make the need to suspend habeas corpus far less than it ever was when you literally had to go out and literally carry the body into a courtroom that was open.”

“But it also may challenge the basic rules the courts have laid out in habeas corpus cases to understanding when we’re in martial law and when martial law is actually truly justified.”

NOTE: The writ of habeas corpus is known as the “great and efficacious writ in all manner of illegal confinement”.

Martial law is the imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to a temporary emergency where civil forces are overwhelmed, or in an occupied territory.

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.

Legal Definition of martial law

• 1: the law applied in occupied territory by the military authority of the occupying power
• 2: the law administered by military forces that is invoked by a government in an emergency when civilian law enforcement agencies are unable to maintain public order and safety

When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws. Martial law is justified when civilian authority has ceased to function, is completely absent, or has become ineffective.

Further, martial law suspends all existing laws, as well as civil authority and the ordinary administration of justice.

The power of martial law, once held to be nearly absolute, has limitations; for example, civilians may not be tried by military tribunals as long as civilian courts are functional.

Military personnel cannot be used in surveillance or undercover operations, and they may not be used as informants, investigators, or interrogators unless the investigation is a joint military-civilian operation in which the military has an interest in the case’s outcome.

KEY TAKEAWAYS:

Martial law is law administered by the military rather than a civilian government, typically to restore order.

Martial law is declared in an emergency, in a response to a crisis, or to control occupied territory.

When martial law is declared, civil liberties, such as the right to free movement, free speech, protection from unreasonable searches, and habeas corpus laws may be suspended.

Understanding Martial Law

The declaration of martial law is a rare and momentous decision for a civilian government to make and for a good reason. When martial law is declared, civilian control of some or all aspects of government operations is ceded to the military.

This means that, in the case of elected governments, the representatives chosen by the voting population are no longer in power.

Civilians have thus ceded control of the country in exchange for the potential restoration of order with the possibility that control may not be reclaimed in the future.

When martial law is declared, civil liberties, such as the right to free movement, free speech or protection from unreasonable searches, can be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal. Civilians may be arrested for violating curfews or for offenses that, in normal times, would not be considered serious enough to warrant detention. Laws relating to habeas corpus that are designed to prevent unlawful detention may also be suspended, allowing the military to detain individuals indefinitely without the possibility of recourse.

Declaring Martial Law

Considering the negative ramifications martial law can have on a country and its citizens, declaring martial law is a last resort reserved for situations where law and order is rapidly deteriorating. It may be declared to reign in protests, civil unrest, coup d’états, or insurrections. Martial law may also be declared when a country’s military occupies foreign territory, such as at the end of a war.

Typically, the power to declare martial law rests with the president. The circumstances in which it may be declared and other limiting factors, such as the amount of time it may be left in effect, are enshrined in legislation or a country’s constitution. For example, a president may be authorized to declare martial law during a time of violent civil unrest, but only for 60 days. International laws may also limit the scope and duration of martial law if a country has signed onto a multilateral treaty.

Special Considerations—States of Emergency

The use of martial law in the wake of natural disasters is less common. Rather than declare martial law and hand over power to the military in the case of a hurricane or earthquake, governments are much more likely to declare a state of emergency. When a state of emergency is declared, the government may expand its powers or limit the rights of its citizens. The government does not, however, have to hand power over to its military. In some cases, a government may invoke a state of emergency specifically to suppress dissent or opposition groups.

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)

A curfew is an order specifying a time during which certain regulations apply.

Typically it refers to the time when individuals are required to return to and stay in their homes. Such an order may be issued by public authorities.

NOTE:

Four of the Council of Europe’s 47 member states — Armenia, Latvia, Moldova and Romania — have announced a so-called derogation from the provisions of the European Convention on Human Rights.

The move allows these countries to suspend certain civil rights during the coronavirus state of emergency, though critics have said the measures are excessive.

NOTE:

A third of millennials want martial law and 66 per cent prefer strong leader over parliament, poll finds – Telegraph… August 2019

Two thirds of millennials favour “strong leaders who do not have to bother with parliament”, according to a poll revealing a sharp rejection of liberal principles.

The report by Onward, the centre-right think tank, found that 66 per cent of 25 to 34-year-olds favour ‘strongman’ leaders while 26 per cent believe democracy is a bad way to run the country – and 36 per cent would support army rule.

Uncovering a sea change in political attitudes, nearly two to one voters said they wanted a society that “focuses on giving people more security” (65 per cent), rather than one that “focuses on giving people more freedom” (35 per cent).

The report’s co-author Lord O’Shaughnessy, David Cameron’s former director of policy, said the findings mark “a break with 60 years of liberal consensus”….

STIRI INTERNATIONALE

Note:

În data de 17 martie 2020, Reprezentanța Permanentă a României a înregistrat la Secretariatul General al Consiliului Europei o notă verbală prin care a anunțat că parte din măsurile de urgență instituite prin Decretul prezidențial nr. 195/2020, prin care a fost declarată starea de urgență, implică derogări de la obligațiile asumate prin CEDO.

România, Moldova, Letonia și Armenia au activat derogarea de la aplicarea prevederilor CEDO, având în vedere activarea stării de urgență

România şi încă trei state membre ale Consiliului Europei, respectiv Republica Moldova, Letonia şi Armenia, au activat articolul din Convenţia Europeană a Drepturilor Omului care permite derogări de la aplicarea acesteia în condiţiile stării de urgenţă decretate ca urmare a coronavirusului, a transmis France Presse, citată de Agerpres.ro.

Articolul 15 din Convenţia Europeană a Drepturilor Omului prevede că ”în caz de război sau de alt pericol public care ameninţă existenţa unei naţiuni”, un stat membru ”poate lua măsuri derogatorii de la obligaţiile prevăzute în Convenţie, în măsura strictă în care situaţia o impune şi cu condiţia ca aceste măsuri să nu contravină altor obligaţii care decurg din dreptul internaţional”.

Activarea articolului 15 nu permite însă derogarea de la articolele Convenţiei care protejează dreptul la viaţă şi care interzic tortura şi sclavia.