Martial Law During Time of War - An International Law View
About the author: Dr. Srikant Parthasarathy is a Professor of International Law.
Image by Julia Rekamie available here.
Martial law, as has been imposed by Russia in four regions of Ukraine annexed by the former on 19th of October 2022, raises two important aspects in the ‘rule of law’ interpretation in the International Law context. The last imposition of martial law was during World War II. This begs the question as to whether warring nations ,as per the ‘Rule of War’, can invoke martial law as a lawful excuse for the administration of the annexed region.
Let us consider the contemporary rules of war, which is the unwritten, uncontested & derogation which is not permissible, i.e., the way in which the unfortunate circumstance of war occurs. This can include ensuring no impact to the civilian population. Whereas implementing the customary law on martial law restricts the scope of implementation of the martial law, only if the domestic courts cannot deliver the justice.
In this instance, the unwritten rules on imposing martial law work within the domain of a country and where the judiciary cannot provide an effective remedy. This is, as a matter of practice, the last resort for countries In the situation of internationally warring states, the rules become complicated. The extra-territorial jurisdiction of Russia as of today is a matter within the determination of the International Court of Justice (“ICJ”), which ruled that both the nations (Ukraine and Russia) shall desist from use of force.
A simultaneous interpretation of the ICJ’s ruling coupled with Russia’s martial law not only violates the international law and rules that it entails but also casts a doubt on the right of ‘self -determination’ by the people of Ukraine. Martial Law could prevent the situation of an armed conflict only insofar as the state controlled exists within the domain of a country. In this case, Ukraine’s regions are neither part of the Russian Federation nor within the domain of Russia.
The origins of Martial Law and its checkered history can be traced to the manual published by the ICJ titled ‘Military-Jurisdiction-and-international-law-vol.2,’ which enumerates 17 instances where it finds Martial Law fundamentally violating human rights by referencing the Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”), which guarantees an unbiased trial to every human being.
While the question of ‘Martial Law’ has been controversial in Sierra Leonne’s Coup d’état, the right to fair trial was a fundamental feature of human rights as per the African Commission on Human and People’s Rights. More judicial opinions are directly from ICJ’s reference in Algeria, Cameroon, Kuwait, Uzbekistan, Venezuela, as well as Russia in the past few decades. In all the instances, the ICJ opined that Martial Law violates the principles of democracy and justice, which nations cannot invade. Now the question is whether countries can set aside those principles conveniently in the climate of war. The answer is an emphatic ‘No.’
In war, especially when the war’s legality itself is in contention, the imposition of ‘Martial Law’ can lead to only arbitrary actions, which fly under the radar of an International Crime. Martial Law is far from a peacekeeping mission or a legitimate way of overriding the rule of war and the rule of law. It is pertinent to note the United Nations’ Special Rapporteur’s comment on the situation in Chile in 1995, which reads, “the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment. the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment.”
In addition, Court Martials do not have an appeal mechanism and the wide margin of arbitrary actions by the Military, especially in occupied zones directly affect civilians. This affects the cardinal rule of International Humanitarian Law that “Civilians shall not be harmed in any manner whatsoever.”
Martial Law also has the ability of extra-territorial application and naturally presumes criminal responsibilities on the persons tried under it. This is in direct conflict with the United Nations Declaration of Human Rights and the ICCPR.
It would be difficult to erase from the Republic of India’s memory the Emergency proclaimed from time to time. It is also pertinent to note that the Constitution of India has not defined Martial Law, except for the inclusion of an executive prerogative, which is the cabinet to pass such orders as it may deem appropriate. India has never issued Martial Law in the 75 years of its independence but has encountered situations closer to the martial law in the infamous Armed Forces (Special Powers) Act (1958) and Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.
Considering that Russia, an aggressive state, is using the Martial Law , it may be time for India to revisit its Article 34 of the Constitution, which gives discretion to the Parliament to ratify a martial law and risks the Republic of India to violation of the UDHR and the International Principles of Law. This may be an appropriate time to revisit this article of the constitution, especially when the Government is maintaining its position that “Law making is the sovereign power of the Parliament,” as law making also includes keeping a “contingent law” in check.