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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Militias

Niccolò Ridi

Subject(s):
Military forces — Military service — Permanent military — Militias

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  Introduction and List of Concepts

1.  The term ‘militia’ may be defined as ‘[a] military force that is raised from the civil population to supplement a regular army in an emergency’ (Oxford English Dictionary). The word, first recorded in the English language around the end of the 16th century, comes from the Latin term militia (‘military service’), which in turn descends from miles (‘soldier’). This dictionary description offers a solid starting point, reflecting a meaning assigned to the term in most contexts, though with the obligatory caveat that each and every one of its elements must be further clarified. However, it is important to note that ‘militia’ is not a term of art, and there remains significant room for ambiguity. The expression is thus frequently used to describe different kinds of groups of civilians who take up arms, the degree of affiliation to a legitimate government varying from complete allegiance to outright opposition, and being particularly difficult to fully appraise in the context of failing states. The notion of ‘militia’ has been used to identify several different phenomena. For example, the term has been employed to classify the reserve forces of a regular army (permanent military) or describes a specific organizational model of military service (military service). In the African continent, unorganized forces comprising armed followers of warlords have often been called militias: normally organized along ethnic and tribal lines, and mostly active in the African continent. These have been at the forefront of a number of international and non-international conflicts, and often backed and controlled by states, which could profit from the plausible deniability for the violent acts carried out by the militias (Ahram 15). The Sudanese Janjaweed are probably the most infamous example (UNSG ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’ (25 January 2005) UN Doc S/2005/60, at 31). Different yet are the independent paramilitary groups that have undergone a revival in the United States (‘US’) as ‘constitutionalist’ militias, banding together in opposition to the federal government and invoking legitimacy based on originalist interpretations of the US Constitution.

2.  The ambiguity plaguing the notion of ‘militia’ may be observed clearly in its use in international instruments.

3.  For example, Art. 4(2) of the Third Geneva Convention extends—subject to certain conditions—the grant of protected status to ‘other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory’ (Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III) Art. 4.A(2)). To be sure, classifications are made in this context to ensure respect of the principle of distinction and the protection of captured fighters, or to attribute international responsibility to the party to the conflict to which the groups ‘belong’ (Del Mar 110). Nevertheless, the provision offers a first illustration of the problems arising from the definition of the concept.

4.  Most constitutions avoid express definitions. Indeed, it must be observed that the problem is further complicated by the circumstances in which different types of militias have, throughout history played significant roles in the consolidation of a given constitutional order, especially in post-conflict societies. And, as a prominent social arrangement, they are often factor in the configuration of various rights and obligations.

5.  Nevertheless, the context and the intended purpose of the mention of the concept generally allow the meaning of the notion in different constitutional orders to be determined. In most, however, the term ‘militia’ is employed to describe forces formed by able-bodied citizen who, without being professional fighters, take up arms for defensive or order-restoring purposes that fit within the constitutional framework and subject to the control of the State, though the degree of attachment to its regular military forces may range from affiliation to more organic relationships.

B.  Militias in History

6.  Key to understanding the development of militias is the notion that regular armies are a relatively recent development. In fact, militias are at the forefront of a sizeable chunk of European military history.

7.  Starting in the middle ages, it was common for free men throughout Europe to be burdened with military obligations for the purposes of communal defence. In contrast, the employment of standing armies only started to become widespread around the 16th century (‘Militia’ in Oxford Reference).

1.  Medieval Militias

8.  For example, in the English context, William Blackstone places the birth of the institution in the ninth Century, under the reign of Alfred the Great (871–899), whose ‘prudent discipline made all the subjects of his domain soldiers’ (Blackstone 397).

9.  In reality, it has more recently been suggested that the origins of militias predate the Norman conquest. For example, during the Saxon era, the institution of the fyrd service might be considered to fit the definition of militia. There remains considerable ambiguity on the essential characteristics of the institution, but it is known that it resulted in the employment of able-bodied freemen, whose duties were based on the Germanic notion of ‘the nation in arms’ (Hollister 27). Such an organizational model, based on the calls of short duration in times of emergency, and only in areas at risk, worked well for isolated kingdoms with no expansionist goals, as they were easier to manage and cheaper to maintain (Fields and Hardy 3).

2.  Standing Armies and Militias

10.  Inevitably, however, professional standing armies became the norm, but citizen militias did not become irrelevant.

11.  First, in some cases, militias remained fundamental as defence forces, replacing the very idea of a standing army. Switzerland remains the best documented, if isolated, example of the widespread use of the militia as a model for the organization of armed forces: Machiavelli, notoriously wary of the power acquired by the mercenary condottieri of the 16th century, supported the model and famously described the Swiss as ‘completely armed and quite free’ (Machiavelli Chapter XII).

12.  Second, militias retained great importance for internal power struggles. This was the case, for example, in England. While it was not the only one, a clash over the control of the militia was ‘the immediate cause of the fatal rupture between the king and his parliament’ (Blackstone 399). The English experience was destined for a long-lasting legacy on Western political thought: Cromwell’s military rule first, and James II’s attempts to quench insurrections by increasing the size of a professional army later, both supported the idea that standing armies were prone to clashes with civilians and ultimately dangerous and resulted in the provision in the English Bill of Rights (1689) that ‘the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law’ (Bill of Rights (Act), 16 December 1689, (Eng), Main Text, Para. I(5) (UK)).

13.  In other areas of Europe too, militias remained a common development. In Prussia, for example, financial concerns weighed against a large standing army, and a system of conscription was supplemented with the duty of citizens to join the Landwehr, comprised of those not in active duty and having officers selected from the local middle-class elite. While the symbolical value of the union of all classes for the common defence was significant, pragmatic considerations eventually brought it to subordination to the regular army (Showalter 32–33).

3.  Militias, Public Order, and Revolutions

14.  The American experience was fundamentally different in that the militia served as an instrument of liberation from British rule.

15.  Originally, militias were mostly raised to confront native threats. It was not long, however, before they started to be seen as an answer to the Crown’s excess of authority. In the debates of the time, Samuel Adams often urged the colonists to take up arms to react to British use of their troops for law enforcement purposes—a use of a standing army in times of peace, which ran counter English constitutional principles (Cornell 10).

16.  Eventually, the tension led to the formation of the ‘Minutemen’, select militias characterized by the election of officers—an element that effectively resulted in an anti-British sentiment prevailing. The attempt by the British to disarm the colonists, which also ran counter their right to bear arms under the Bill of Rights (Bill of Rights (Act), 16 December 1689, (Eng), Main Text, para. I(5)), eventually contributed to spark the American Revolutionary War (Blackstone 139).

17.  The Chinese experience is another significant one. Militias in the region were historically created as a response to disorders, and contributed to the weakening of the Qing Empire in favour of local elites (Kuhn). In the Warlord Era, its mobilization reached its peak with the Communist peasant insurrections of the 1920s (McCord 117). It was finally endorsed by the Communist government as a fundamental component of the ‘People’s war’ strategy, whereby any enemy would be drawn within the national borders to face disproportionate numerical inferiority (Shambaugh 173).

18.  By and large, organized militias eventually became subject to the control of the State’s military, or merged with reserve forces altogether—as in the case of the US National Guard (10 US Code Part I – Organization and General Military Powers ‘10 USC 311 – Militia: Composition and Classes’).

4.  Authoritarian Regimes and Decolonization

19.  Finally, it is important to note that groups known as militias had a prominent role in the establishment of authoritarian regimes in the first half of the 20th century (for example, in Germany and Italy), as well as in many situations of unrest arising from the decolonization process (Whittam 152). As it has been observed in the introduction, these armed groups are perhaps best classified as paramilitary organizations, the label ‘militia’ being at the same time the product of confusion and an indirect attempt at legitimating their status. This meaning is discussed here because the significance of the phenomenon affected the everyday use of the term in certain constitutions. However, ‘paramilitary groups’ is a more appropriate expression, and it is in fact employed by constitutions drafted after authoritarian experiences (Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004), Main Text, Title II Rights, Freedoms and Guarantees, Chapter I Personal Rights, Liberties and Guarantees Art. 46(4) (Port)).

C.  Comparative Analysis

20.  As explained above, militia remains an important topic in many constitutions. The comparative analysis that follows seeks to shed light on the regulation of the institution—or the phenomenon—by those constitutions which expressly mention either the word ‘militia’ or comparable terms.

1.  Militia as an Organizational Model for the Armed Forces

21.  First of all, the expression ‘militia’ may be employed as a descriptor for an organizational model of armed forces. This is the case, to this day, of Switzerland, where the armed forces are organized, in principle, on the militia model. Other small countries grant the topic constitutional treatment. For example, in Bhutan, the Constitution provides that ‘[p]arliament may, by law, require compulsory militia service for adult citizens to strengthen the defence of the country’ (Constitution of the Kingdom of Bhutan: 18 July 2008, Main Text, Art. 28(1) and (4) (Bhutan)). The Constitution of Myanmar contains a similar provision, empowering the, the Defence Services, subject to the assent of the National Defence and Security Council, to ‘administer the participation of the entire people in the Security and Defence of the Union’ (Constitution of the Republic of the Union of Myanmar: 29 May 2008, Main Text, Chapter VII The Defence Services, Art. 340 (Myan)). Analogously, the Constitution of Vietnam provides for the creation of ‘a strong and extensive […] militia force’ alongside a regular army and reserve forces (Constitution of the Socialist Republic of Vietnam: 28 November 2013 Chapter IV Defense of the Fatherland, Art. 66 (Viet)). The Chinese Constitution too contains a similar provision, which frames the joining of the militia for defensive purposes, alongside the performance of military service, as an ‘honourable duty’ (Constitution of the People's Republic of China: 4 December 1982 (as Amended to 14 March 2004), Chapter II The Fundamental Rights and Duties of Citizens, Art. 55 (China)).

2.  The Prohibition of Militias as a Gateway to Stability

22.  A number of constitutions regulate militias in much the same way they govern other types of military and paramilitary organizations. The very existence of these groups is seen as a threat to peaceful and democratic existence. This is revealed with great clarity by the analysis of a number of provisions contained in constitutions of African and Middle-Eastern states, but it also is a prominent feature of constitutions of states with an authoritarian past.

23.  For example, in the constitutions of both the Republic of the Congo and the Democratic Republic of the Congo, the creation of militias is criminally proscribed. In particular, the latter provides that the armed forces are at the service of the entire nation, and consequently prescribes the sentence of high treason for those responsible of creating ‘paramilitary or private militias, or … a youth army’ (Constitution of the Republic of the Congo: 22 December 2001, Main Text, Title XV Public Force, Art. 174 (Congo); Constitution of the Democratic Republic of the Congo: 13 May 2005, Title III The Organization and the Exercise of Power, Chapter 1 The Institutions of the Republic, Section 7 The National Police and the Armed Forces, Subsection 2 The Armed Forces, Art. 190 (Dem Rep Congo)). Similar reasoning is also adopted in the constitutions of Gabon and Guinea, where the prohibition of creating ‘private militia or paramilitary grouping’ is made to descend from the state’s monopoly on the safeguard of public order (Constitution of the Gabonese Republic: 26 March 1991 (as Amended to 22 April 1997), Preliminary Title: Fundamental Rights and Principles, Art. 1(22) (Gabon); Constitution of the Republic of Guinea 7 May 2010, Title XV On The Defence and Security Forces, Art. 143 (Guinea)). A related provision is to be found in the Constitution of Zimbabwe, where the right of people under the age of eighteen not to be recruited into a militia force is consecrated (Constitution of the Republic of Zimbabwe: 22 May 2013, Main Text, Chapter 4 Declaration of Rights, Part 3 Elaboration of Certai n Rights, Art. 81(1)(g) (Zim)).

24.  In other constitutions of countries, emphasis is placed instead on the significance of militias for the sound operation of the democratic process. For example, the Constitution of Kenya sets out a prohibition on parties to create such armed groups (Constitution of the Republic of Kenya: 6 May 2010, Main Text, Chapter 7 Representation of The People, Part 3 Political Parties, Art. 91(2)(c) (Kenya)).

25.  In Jordan, instead, an instrument of constitutional status such as the National Charter provides that parties shall not establish ‘military or paramilitary (militia) groups of any description whatsoever’ (National Charter of the Hashemite Kingdom of Jordan: December 1990, Chapter 2 State Governed by Law and Political Pluralism, Art. 4(5)(e) (Jordan)). Similar concerns are echoed in the Constitution of Iraq, which proscribes the formation of military militia outside the framework of the Armed Forces in a provision which stresses civilian control over the military and the its role as a defender of the people with no interference in the political affairs of the country (Constitution of the Republic of Iraq: 15 October 2005, Main Text, Section 1 Fundamental Principles, Art. 9(B) (Iraq)).

3.  Military Law and Jurisdiction of Courts-martial

26.  It follows that the belonging to a militia is also a condition for the application of military law (martial law). For example, in the Liberian Constitution, the application of military law and penalties, as well as the jurisdiction of courts-martial (military courts), is limited to those who are enlisted in the armed forces or comprise the ‘militia in active service’ (Constitution of the Republic of Liberia: 3 July 1984, Main Text, Chapter III: Fundamental Rights, Art. 19 (Liber)). The opposite is true in the Constitution of Tonga, where those belonging to either the regular armed forces or the militia are subject to civil law (Constitution of the Kingdom of Tonga: 4 November 1875 (as Amended to 14 January 2011), Main Text, Art. 21 (Tonga)). In the US, the Fifth Amendment to the Constitution provides for an exception to the guarantee of grand jury indictments for members of the militia ‘when in actual service in time of War or public danger’ (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), Main Text, Articles in Addition to, and Amendment of, The Constitution of the United States of America, Proposed by Congress, and Ratified by the Legislatures of the Several States, Pursuant to the Fifth Article of the Original Constitution, Article V (US)). Overruling a previous opinion, the Supreme Court clarified that the exception applies on the basis of the person’s status of active service in the armed force, irrespective of the connection of the offence with the service rendered (Solorio v United States (1987) (US)).

4.  Militia in the Defence Framework

27.  In multiple contexts, discussion of militias in state constitutions is devoted to the identification of their commander-in-chief, normally the same official in charge of the regular armed forces (control of use of military forces). In most cases, this is the Head of State: in Bhutan, for example, the role is covered by the Druk Gyalpo (Constitution of the Kingdom of Bhutan: 18 July 2008, Main Text, Art. 28(1) and (4) (Bhutan)). The Constitution of Tonga grants this power to the King, who may convene the militia for purposes ranging from public celebration to defence in times of war. Interestingly, while in times of peace the command extends to citizens and resident aliens (‘taxpayers’), in time of war the King may call upon all those capable of bearing arms (Constitution of the Kingdom of Tonga 4 November 1875 (as Amended to 14 January 2011), Main Text, Art. 22 (Tonga)).

28.  In the Constitution of the United States, the President is identified as Commander-in-Chief of the regular armed forces and of ‘the Militia of the several States, when called into the actual Service of the United States’ (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), Main Text, Art. II, Section II (US)) (Epstein). However, the organization of the militia itself falls under the competence of the Congress. The United States constitution provides as much, in what is generally referred to as ‘the Militia Clause’, leaving the individual States in charge of the training and the appointment of officers (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), Main Text, Art. II, Section 8 (US)) (Montgomery; Wiener). The federal structure of the US has created ample room for problems in this context: for example, the power of the federal authorities over the National Guard—the reserve forces that constitute the most recent incarnation of the organized militia—has been challenged on the grounds that deployment of individual states’ Guards should require the gubernatorial consent. The Supreme Court provided a broad rejection of this proposition, stating that, based on the principle of supremacy of federal power in military affairs, the Congress has full power to order to federal service members of the National Guard, who thereby temporarily lose their status as state Guards and receive their training directly from the Army (Perpich v Department of Defense (1990) (US) 347).

5.  Citizens Militias and Related Issues

29.  The US are the jurisdiction where the concept of militias has retained the greater significance as far as issues that go beyond the organization of state armed forces. This is to be ascribed to the specific constitutional history of the country and the introduction of the Second Amendment in the Constitution. The Amendment protects ‘the right of the people to keep and bear Arms’ as instrumental to the maintenance of a ‘well-regulated militia’, necessary to the security of a free state, and lies at the origin of the modern debate on gun control in American society (Generally, Cornell).

30.  The meaning of the provision has been and remains the matter of much contention, but in a 2008 decision, however, the Court unambiguously held that what the Founders had envisioned was indeed a protected individual right to keep and bear arms for self-defence (District of Columbia v Heller (2008) (US)). The meaning of the term ‘militia’ played an important role in Justice Scalia’s originalist majority opinion: the decision echoes the Antifederalists’ preoccupation that a citizens’ militia could be disarmed and subdued by either a select militia or a standing army, and thus identifies an important safeguard in the right to resist the tyranny through recourse to arms. This approach has been criticized because it appears to endorse an ‘insurrectionist’ interpretation of the Amendment (Bogus 257).

D.  Conclusion

31.  Broadly speaking, the importance of militias is historical, rather than legal. On the one hand, the almost universal choice in favour of standing armies has diminished their role; on the other hand, the polysemous nature of the term ‘militia’ and the relatively scarce attention devoted by constitutions to the concept makes it difficult to draw univocal conclusions. Nevertheless, from the perspective of constitutional law, the concept retains significance insofar as it sheds light on the issues such as the structuring of the armed forces, the monopoly of the use of force, the application of military law and the jurisdiction of courts-martial, and a number of reflected rights. In this regard, the regulation of militias in a given constitution may provide insight on the foundational moments of a constitutional order.

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