Military Government and Martial Law Distinguished




MILITARY GOVERNMENT: In the practice of the United States, military government is the form of administration which may be established and maintained for the government of areas of the following types that have been subjected to military occupation:

a. Enemy territory.

b. Allied territory recovered from enemy occupation, when that territory has not been made the subject of a civil affairs agreement (see par. 354).

c. Other territory liberated from the enemy, such as neutral territory and areas unlawfully incorporated by the enemy into its own territory, when that territory has not been made the subject of a civil affairs agreement.

d. Domestic territory recovered from rebels treated as belligerents.

　

Although military government is an accepted concept in the law of the United States, the limits placed upon its exercise are prescribed by the international law of belligerent occupation. Other countries exercise jurisdiction in occupied areas through types of administration analogous to military government even though they may be designated by other names.




MARTIAL LAW: In the United States, martial law is the temporary government of the civil population of domestic territory through the military forces, without the authority of written law, as necessity may require. The most prominent distinction between military government, as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territory formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of belligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitants of which are not treated or recognized as belligerents, and is governed solely by the domestic law of the United States.

So far as the United States forces are concerned, military government and martial law are exercised by the military commander under the direction of the President, as Commander in Chief of the Armed Forces.



The above was excerpted from --
US Army Field Manual FM 27-10, 1956 edition


Law of Land Warfare
Chapter 1
Basic Rules and Principles


Section 1. General


paragraph 12.



COMMENTARY #1
Looking at the historical record, it appears that the concept of "military government" as distinct from "martial law" was only fully clarified in the US Supreme Court case of Ex parte Milligan (1866). Before that time, the two were often not carefully distinguished.


COMMENTARY #2

The Ryukyus and Taiwan are best categorized as "Category c" (Other territory liberated from the enemy), for the following reasons:

While Japan's historical sovereignty over its mainland areas (i.e. four main islands) dates back thousands of years, its control over the Ryukyus and Taiwan only began in the late 1800s. The Ryukyus were formally annexed by Japan in 1879, and Taiwan was ceded to Japan by the Qing Dynasty following the Treaty of Shimonoseki in 1895. These territories were not part of Japan’s original sovereignty under international law but were later acquisitions during its imperial expansion.

In WWII, primarily due to the efforts of the U.S. military, both the Ryukyus and Taiwan were liberated from Japanese sovereignty. However, unlike the situation with Japan’s home islands, the final legal status of these territories remained unresolved following the war. The San Francisco Peace Treaty (SFPT) of 1952 did not explicitly transfer sovereignty over Taiwan or the Ryukyus to another state, leaving their status (to some extent) in a situation of legal limbo. The absence of a final disposition and their treatment as territories liberated from enemy sovereignty by the United States, rather than integral parts of Japan, makes them fit squarely within Category c.

This classification aligns with their post-war status: liberated by U.S. military forces but not immediately ceded to a new sovereign entity, reflecting their distinct legal and historical circumstances.



LINKs
Additional Webpages of Interest
Ex Parte Milligan, 71 U.S. 2 (1866)
Dorr v. United States, 195 US 138, 147 (1904)
Zu Weimar v. Elicofon, 536 F. Supp. 829 (1981)
Johnson v. Eisentrager, 339 U.S. 763 (1950)
Cross v. Harrison, 57 U.S. 164 (1853)


[English version]   https://www.twdefense.info/trust3/milgovtmarlaw.html