International Law. A Treatise Volume Ii Part 23

[Footnote 329: This is not identical with so-called _constructive_ occupation, but is really _effective_ occupation. An occupation is constructive only if an invader declares districts as occupied over which he actually does not exercise control--for instance, when he actually occupies only the capital of a large province, and proclaims that he has thereby occupied the whole of the province, although he does not take any steps to exercise control over it.]

[Footnote 330: The annexation of the Orange Free State dates from May 24, 1900, and that of the South African Republic from September 1, 1900.

It may well be doubted whether at these dates the occupation of the territories concerned was already so complete as to be called effective.

The British Government ought not, therefore, to have proclaimed the annexation at such early dates. But there ought to be no doubt that the occupation became effective some time afterwards, in 1901. See, however, Sir Thomas Barclay in _The Law Quarterly Review_, XXI. (1905), p. 307, who a.s.serts the contrary; see also, below, -- 264, p. 326, note 2, and -- 265, p. 327, note 1. _The Times' History of the War in South Africa_ (vol. V. p. 251) estimates the number of Boer fighters in May 1901 to be about 13,000. These armed men were dispersed into a very large number of guerilla bands, and they were in a great many cases men who seemingly had submitted to the British authorities, but afterwards had taken up arms.]

It must be emphasised that the rules regarding effective occupation must be formulated on the basis of actual practice quite as much as rules regarding other matters of International Law. Those rules are not authoritative which are laid down by theorists, but only those which are abstracted from the actual practice of warfare and are unopposed by the Powers.[331]

[Footnote 331: The question is so much controverted that it is impossible to enumerate the different opinions. Readers who want to study the question must be referred to the literature quoted above at the commencement of -- 166.]

[Sidenote: Occupation, when ended.]

-- 168. Occupation comes to an end when an occupant withdraws from a territory or is driven out of it. Thus, occupation remains only over a limited area of a territory if the forces in occupation are drawn into a fortress on that territory and are there besieged by the re-advancing enemy, or if the occupant concentrates his forces in a certain place of the territory, withdrawing before the re-advancing enemy. But occupation does not cease because the occupant, after having disarmed the inhabitants and having made arrangements for the administration of the country, is marching on to overtake the retreating enemy, leaving only comparatively few soldiers behind.

[Sidenote: Rights and Duties in General of the Occupant.]

-- 169. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the respective territory and its inhabitants. And all steps he takes in the exercise of this right must be recognised by the legitimate Government after occupation has ceased. This administration is in no wise to be compared with ordinary administration, for it is distinctly and precisely military administration. In carrying it out the occupant is, on the one hand, totally independent of the Const.i.tution and the laws of the respective territory, since occupation is an aim of warfare, and since the maintenance and safety of his forces and the purpose of war stand in the foreground of his interest and must be promoted under all circ.u.mstances and conditions. But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is not the Sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war. On the contrary, he has the duty of administrating the country according to the existing laws and the existing rules of administration; he must insure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. Article 43 of the Hague Regulations enacts the following rule which is of fundamental importance: "The authority of the legitimate Power having actually pa.s.sed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

[Sidenote: Rights of the Occupant regarding the Inhabitants.]

-- 170. An occupant having authority over the territory, the inhabitants are under his sway and have to render obedience to his commands.

However, the power of the occupant over the inhabitants is not unrestricted, for articles 23, 44, and 45 of the Hague Regulations expressly enact, that he is prohibited from compelling the inhabitants to take part in military operations against the legitimate Government, to give information concerning the army of the other belligerent or concerning the latter's means of defence, or to take an oath of allegiance. On the other hand, he may compel them to take an oath--sometimes called an "oath of neutrality"--to abstain from taking up a hostile att.i.tude against the occupant and willingly to submit to his legitimate commands; and he may punish them severely for breaking this oath. He may make requisitions and demand contributions[332] from them, may compel them to render services as drivers, farriers, and the like.[333] He may compel them to render services for the repair or the erection of such roads, buildings, or other works as are necessary for military operations.[334] He may also collect the ordinary taxes, dues, and tolls imposed for the benefit of the State by the legitimate Government. But in such case he is, according to article 48 of the Hague Regulations, obliged to make the collection, as far as possible, in accordance with the rules in existence and the a.s.sessment in force, and he is, on the other hand, bound to defray the expenses of the administration of the occupied territory on the same scale as that by which the legitimate Government was bound.

[Footnote 332: See above, ---- 147 and 148.]

[Footnote 333: Formerly he could likewise compel them to render services as guides, but this is now prohibited by the wording which article 44 received from the Second Peace Conference. It should, however, be mentioned that Germany, Austria-Hungary, j.a.pan, Montenegro, and Russia have signed Convention IV. with a reservation against article 44, and that in a war with these Powers the old rule is valid that inhabitants may be compelled to serve as guides.]

[Footnote 334: See article 52 of the Hague regulations, and _Land Warfare_, ---- 388-392.]

Whoever does not comply with his commands, or commits a prohibited act, may be punished by him; but article 50 of the Hague Regulations expressly enacts the rule that _no general penalty, pecuniary or otherwise, may be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible_. It must, however, be specially observed that this rule does not at all prevent[335] reprisals on the part of belligerents occupying enemy territory. In case acts of illegitimate warfare are committed by enemy individuals not belonging to the armed forces, reprisals may be resorted to, although practically innocent individuals are thereby punished for illegal acts for which they are neither legally nor morally responsible--for instance, when a village is burned by way of reprisal for a treacherous attack committed there on enemy soldiers by some unknown individuals.[336] Nor does this new rule prevent an occupant from taking hostages[337] in the interest of the safety of the line of communication threatened by guerillas not belonging to the armed forces, or for other purposes,[338] although the hostage must suffer for acts or omissions of others for which he is neither legally nor morally responsible.

[Footnote 335: See Holland, _War_, No. 110, and _Land Warfare_, ---- 385-386. See also Zorn, pp. 239-243, where an important interpretation of article 50 is discussed.]

[Footnote 336: See below, -- 248.]

[Footnote 337: But this is a moot point; see below, -- 259.]

[Footnote 338: Belligerents sometimes take hostages for the purpose of securing compliance with demands for contributions, requisitions, and the like. As long as such hostages obtain the same treatment as prisoners of war, the practice does not seem to be illegal, although the Hague Regulations do not mention and many publicists condemn it; see above, -- 116, p. 153, note 1, and below, -- 259, p. 319, note 2.]

It must be particularly noted that in the treatment of the inhabitants of enemy territory the occupant need not make any difference between such as are subjects of the enemy and such as are subjects of neutral States.[339]

[Footnote 339: See above,-- 88, and Frankenbach, _Die Rechtsstellung von neutralen Staatsangehorigen in kriegfuhrenden Staaten_ (1910), pp.

46-50.]

And it must be further observed that, according to British and American views--see above, -- 100_a_--article 23 (_h_) of the Hague Regulations prohibits an occupant of enemy territory from declaring extinguished, suspended, or unenforceable in a Court of Law the rights and the rights of action of the inhabitants.

[Sidenote: Position of Government Officials and Munic.i.p.al Functionaries during Occupation.]

-- 171. As through occupation authority over the territory actually pa.s.ses into the hands of the occupant, he may for the time of his occupation depose all Government officials and munic.i.p.al functionaries that have not withdrawn with the retreating enemy. On the other hand, he must not compel them by force to carry on their functions during occupation, if they refuse to do so, except where a military necessity for the carrying on of a certain function arises. If they are willing to serve under him, he may make them take an oath of obedience, but not of allegiance, and he may not compel them to carry on their functions in his name, but he may prevent them from doing so in the name of the legitimate Government.[340] Since, according to article 43 of the Hague Regulations, he has to secure public order and safety, he must temporarily appoint other functionaries in case those of the legitimate Government refuse to serve under him, or in case he deposes them for the time of the occupation.

[Footnote 340: Many publicists a.s.sert that in case an occupant leaves officials of the legitimate Government in office, he "must" pay them their ordinary salaries. But I cannot see that there is a customary or conventional rule in existence concerning this point. But it is in an occupant's own interest to pay such salaries. and he will as a rule do this. Only in the case of article 48 of the Hague Regulations is he compelled to do it.]

[Sidenote: Position of Courts of Justice during Occupation.]

-- 172. The particular position which Courts of Justice have nowadays in civilised countries, makes it necessary to discuss their position during occupation.[341] There is no doubt that an occupant may suspend the judges as well as other officials. However, if he does suspend them, he must temporarily appoint others in their place. If they are willing to serve under him, he must respect their independence according to the laws of the country. Where it is necessary, he may set up military Courts instead of the ordinary Courts. In case and in so far as he admits the administration of justice by the ordinary Courts, he may nevertheless, so far as it is necessary for military purposes or for the maintenance of public order and safety, temporarily alter the laws, especially the Criminal Law, on the basis of which justice is administered, as well as the laws regarding procedure. He has, however, no right to constrain the Courts to p.r.o.nounce their verdicts in his name, although he need not allow them to p.r.o.nounce verdicts in the name of the legitimate Government. A case that happened during the Franco-German War may serve as an ill.u.s.tration. In September 1870, after the fall of the Emperor Napoleon and the proclamation of the French Republic, the Court of Appeal at Nancy p.r.o.nounced its verdicts under the formula "In the name of the French Government and People." Since Germany had not yet recognised the French Republic, the Germans ordered the Court to use the formula "In the name of the High German Powers occupying Alsace and Lorraine," but gave the Court to understand that, if the Court objected to this formula, they were disposed to admit another, and were even ready to admit the formula "In the name of the Emperor of the French," as the Emperor had not abdicated. The Court, however, refused to p.r.o.nounce its verdict otherwise than "In the name of the French Government and People," and, consequently, suspended its sittings. There can be no doubt that the Germans had no right to order the formula, "In the name of the High German Powers, &c.," to be used, but they were certainly not obliged to admit the formula preferred by the Court; and the fact that they were disposed to admit another formula than that at first ordered ought to have made the Court accept a compromise. Bluntschli (-- 547) correctly maintains that the most natural solution of the difficulty would have been to use the neutral formula "In the name of the Law."

[Footnote 341: See Pet.i.t, _L'Administration de la justice en territoire occupe_ (1900).]

CHAPTER IV

WARFARE ON SEA

I

ON SEA WARFARE IN GENERAL

Hall, -- 147--Lawrence, ---- 193-194--Westlake, II. pp.

120-132--Maine, pp. 117-122--Manning, pp. 183-184--Phillimore, III. -- 347--Twiss, II. -- 73--Halleck, II. pp. 80-82--Taylor, -- 547--Wharton, III. ---- 342-345--Wheaton, -- 355--Bluntschli, ---- 665-667--Heffter, -- 139--Geffcken in Holtzendorff, IV. pp.

547-548, 571-581--Ullmann, ---- 187-188--Bonfils, Nos. 1268, 1294-1338--Despagnet, Nos. 647-649--Pradier-Fodere, VIII. Nos.

3066-3090, 3107-3108--Nys, III. pp. 433-466--Rivier, II. pp.

329-335--Calvo, IV. ---- 2123, 2379-2410--Fiore, III. Nos.

1399-1413--Pillet, pp. 118-120--Perels, -- 36--Testa, pp.

147-157--Boeck, Nos. 3-153--Lawrence, _Essays_, pp.

278-306--Westlake, _Chapters_, pp. 245-253--Ortolan, I. pp.

35-50--Hautefeuille, I. pp. 161-167--Gessner, Westlake, Lorimer, Rolin-Jaequemyns, Laveleye, Alberic Rolin, and Pierantoni in _R.I._ VII. (1875), pp. 256-272 and 558-656--Twiss, in _R.I._ XVI.

(1884), pp. 113-137--See also the authors quoted below, -- 178, p.

223, note 1.

[Sidenote: Aims and Means of Sea Warfare.]

-- 173. The purpose of war is the same in the case of warfare on land or on sea--namely, the overpowering of the enemy. But sea warfare serves this purpose by attempting the accomplishment of aims different from those of land warfare. Whereas the aims of land warfare are defeat of the enemy army and occupation of the enemy territory, the aims[342] of sea warfare are: defeat of the enemy navy; annihilation of the enemy merchant fleet; destruction of enemy coast fortifications, and of maritime as well as military establishments on the enemy coast; cutting off intercourse with the enemy coast; prevention of carriage of contraband and of rendering unneutral service to the enemy; all kinds of support to military operations on land, such as protection of a landing of troops on the enemy coast; and lastly, defence of the home coast and protection to the home merchant fleet.[343] The means by which belligerents in sea warfare endeavour to realise these aims are: attack on and seizure of enemy vessels, violence against enemy individuals, appropriation and destruction of enemy vessels and goods carried by them, requisitions and contributions, bombardment of the enemy coast, cutting of submarine cables, blockade, espionage, treason, ruses, capture of neutral vessels carrying contraband or rendering unneutral service.

[Footnote 342: Aims of sea warfare must not be confounded with ends of war; see above, -- 66.]

[Footnote 343: Article 1 of the U.S. Naval War Code enumerates the following as aims of sea warfare:--The capture or destruction of the military and naval forces of the enemy, of his fortifications, a.r.s.enals, dry docks, and dockyards, of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and a.s.sist military operations on land; to protect and defend the national territory, property, and sea-borne commerce.]

[Sidenote: Lawful and Unlawful Practices of Sea Warfare.]

-- 174. As regards means of sea warfare, just as regards means of land warfare, it must be emphasised that not every practice capable of injuring the enemy in offence and defence is lawful. Although no regulations regarding the laws of war on sea have as yet been enacted by a general law-making treaty as a pendant to the Hague Regulations, there are treaties concerning special points--such as submarine mines, bombardment by naval forces, and others--and customary rules of International Law in existence which regulate the matter. Be that as it may, the rules concerning sea warfare are in many points identical with, but in many respects differ from, the rules in force regarding warfare on land. Therefore, the means of sea warfare must be discussed separately in the following sections. But blockade and capture of vessels carrying contraband and rendering unneutral service to the enemy, although they are means of warfare against an enemy, are of such importance as regards neutral trade that they will be discussed below in Part III. ---- 368-413.

[Sidenote: Objects of the Means of Sea Warfare.]

-- 175. Whereas the objects against which means of land warfare may be directed are innumerable, the number of the objects against which means of sea warfare are directed is very limited, comprising six objects only. The chief object is enemy vessels, whether public or private; the next, enemy individuals, with distinction between those taking part in fighting and others; the third, enemy goods on enemy vessels; the fourth, the enemy coast; the fifth and sixth, neutral vessels attempting to break blockade, carrying contraband, or rendering unneutral service to the enemy.

[Sidenote: Development of International Law regarding Private Property on Sea.]