CHAPTER VADMINISTRATION OF OCCUPIED TERRITORYHow to administer an Invaded Country.According to earlier views right up to the last century, a Government whose army had victoriously forced itself into the territory of a foreign State could do exactly as it pleased in the part occupied. No regard was to be paid to the constitution, laws, and rights of the inhabitants. Modern times have now introduced, in this respect, a change in the dominant conceptions, and have established a certain legal relationship between the inhabitants and the army of occupation. If, in the following pages, we develop briefly the principles which are applied to the government of territory in occupation, it must none the less be clearly emphasized that the necessities of war not only allow a deviation from these principles in many cases but in some circumstances make it a positive duty of the Commander.The occupation of a portion of the enemy’s territory does not amount to an annexation of it. The right of the original State authority consequently remains in existence; it is only suspended when it comes into collision with the stronger power of theconqueror during the term of the occupation,i.e., only for the time being.104But the administration of a country itself cannot be interrupted by war; it is therefore in the interest of the country and its inhabitants themselves, if the conqueror takes it in hand, to let it be carried on either with the help of the old, or, if this is not feasible, through the substitution of the new, authorities.From this fundamental conception now arises a series of rights and duties of the conqueror on the one side and of the inhabitants on the other.The Laws remain—with qualification.Since the conqueror is only the substitute for the real Government, he will have to establish the continuation of the administration of the country with the help of the existing laws and regulations. The issue of new laws, the abolition or alteration of old ones, and the like, are to be avoided if they are not excused by imperative requirements of war; only the latter permit legislation which exceeds the need of a provisional administration. The French Republic, at the end of the eighteenth century, frequently abolished the preexisting constitution in the States conqueredby it, and substituted a Republican one, but this is none the less contrary to the law of nations to-day. On the other hand, a restriction of the freedom of the Press, of the right of association, and of public meeting, the suspension of the right of election to the Parliament and the like, are in some circumstances a natural and unavoidable consequence of the state of war.The Inhabitants must obey.The inhabitants of the occupied territory owe the same obedience to the organs of Government and administration of the conqueror as they owed before the occupation to their own. An act of disobedience cannot be excused by reference to the laws or commands of one’s own Government; even so an attempt to remain associated with the old Government or to act in agreement with it is punishable. On the other hand, the provisional Government can demand nothing which can be construed as an offense against one’s own Fatherland or as a direct or indirect participation in the war.Martial Law.The civil and criminal jurisdiction continues in force as before. The introduction of an extraordinary administration of justice—martial law and courts-martial—is therefore only to take place if the behavior of the inhabitants makes it necessary. The latter are, in this respect, to be cautioned, and any such introduction is to be made known by appropriate means. The courts-martial must base anysentence on the fundamental laws of justice, after they have first impartially examined, however summarily, the facts and have allowed the accused a free defense.The conqueror can, as administrator of the country and its Government, depose or appoint officials. He can put on their oath the civil servants, who continue to act, as regards the scrupulous discharge of their duties. But to compel officials to continue in office against their will does not appear to be in the interest of the army of occupation. Transgressions by officials are punished by the laws of their country, but an abuse of their position to the prejudice of the army of occupation will be punished by martial law.Also judicial officers can be deposed if they permit themselves to oppose publicly the instructions of the provisional Government. Thus it would not have been possible, if the occupation of Lorraine in the year 1870–71 had been protracted, to avoid deposing the whole bench of Judges at Nancy and substituting German Judges, since they could not agree with the German demands in regard to the promulgation of sentence.105Fiscal Policy.The financial administration of the occupied territory passes into the hands of the conqueror. The taxes are raised in the preexisting fashion. Any increase in them due to the war is enforced in the form of “War levies.” Out of the revenue of the taxes the costs of the administration are to be defrayed, as, generally speaking, the foundations of the State property are to be kept undisturbed. Thus the domains, forests, woodlands, public buildings and the like, although utilized, leased, or let out, are not to be sold or rendered valueless by predatory management. On the other hand it is permitted to apply all surplus from the revenues of administration to the use of the conqueror.The same thing holds good of railways, telegraphs, telephones, canals, steamships, submarine cables and similar things; the conqueror has the right of sequestration, of use and of appropriation of any receipts, as against which it is incumbent upon him to keep them in good repair.If these establishments belong to private persons, then he has indeed the right to use them to the fullest extent; on the other hand he has not the right to sequestrate the receipts. As regards the right of annexing the rolling-stock of the railways, the opinionsof authoritative teachers of the law of nations differ from one another. Whilst one section regard all rolling-stock as one of the most important war resources of the enemy’s State, and in consequence claim for the conqueror the right of unlimited sequestration, even if the railways belonged to private persons or private companies,106on the other hand the other section incline to a milder interpretation of the question, in that they start from the view that the rolling-stock forms, along with the immovable material of the railways, an inseparable whole, and that one without the other is worthless and is therefore subject to the same laws as to appropriation.107The latter view in the year 1871 found practical recognition in so far as the rolling-stock captured in large quantities by the Germans on the French railways was restored at the end of the war; a corresponding regulation was also adopted by the Hague Conference in 1899.Occupation must be real not fictitious.These are the chief principles for the administration of an occupied country or any portion of it. From them emerges quite clearly on the one hand the duties of the population, but also on the other the limits of the power of the conqueror. But the enforcement of all these laws presupposes the actual occupation of the enemy’s territory and the possibilityof really carrying them out.108So-called “fictitious occupation,” such as frequently occurred in the eighteenth century and only existed in a declaration of the claimant, without the country concerned being actually occupied, are no longer recognized by influential authorities on the law of nations as valid. If the conqueror is compelled by the vicissitudes of war to quit an occupied territory, or if it is voluntarily given up by him, then his military sovereignty immediately ceases and the old State authority of itself again steps into its rights and duties.
CHAPTER VADMINISTRATION OF OCCUPIED TERRITORY
How to administer an Invaded Country.
According to earlier views right up to the last century, a Government whose army had victoriously forced itself into the territory of a foreign State could do exactly as it pleased in the part occupied. No regard was to be paid to the constitution, laws, and rights of the inhabitants. Modern times have now introduced, in this respect, a change in the dominant conceptions, and have established a certain legal relationship between the inhabitants and the army of occupation. If, in the following pages, we develop briefly the principles which are applied to the government of territory in occupation, it must none the less be clearly emphasized that the necessities of war not only allow a deviation from these principles in many cases but in some circumstances make it a positive duty of the Commander.
The occupation of a portion of the enemy’s territory does not amount to an annexation of it. The right of the original State authority consequently remains in existence; it is only suspended when it comes into collision with the stronger power of theconqueror during the term of the occupation,i.e., only for the time being.104
But the administration of a country itself cannot be interrupted by war; it is therefore in the interest of the country and its inhabitants themselves, if the conqueror takes it in hand, to let it be carried on either with the help of the old, or, if this is not feasible, through the substitution of the new, authorities.
From this fundamental conception now arises a series of rights and duties of the conqueror on the one side and of the inhabitants on the other.
The Laws remain—with qualification.
Since the conqueror is only the substitute for the real Government, he will have to establish the continuation of the administration of the country with the help of the existing laws and regulations. The issue of new laws, the abolition or alteration of old ones, and the like, are to be avoided if they are not excused by imperative requirements of war; only the latter permit legislation which exceeds the need of a provisional administration. The French Republic, at the end of the eighteenth century, frequently abolished the preexisting constitution in the States conqueredby it, and substituted a Republican one, but this is none the less contrary to the law of nations to-day. On the other hand, a restriction of the freedom of the Press, of the right of association, and of public meeting, the suspension of the right of election to the Parliament and the like, are in some circumstances a natural and unavoidable consequence of the state of war.
The Inhabitants must obey.
The inhabitants of the occupied territory owe the same obedience to the organs of Government and administration of the conqueror as they owed before the occupation to their own. An act of disobedience cannot be excused by reference to the laws or commands of one’s own Government; even so an attempt to remain associated with the old Government or to act in agreement with it is punishable. On the other hand, the provisional Government can demand nothing which can be construed as an offense against one’s own Fatherland or as a direct or indirect participation in the war.
Martial Law.
The civil and criminal jurisdiction continues in force as before. The introduction of an extraordinary administration of justice—martial law and courts-martial—is therefore only to take place if the behavior of the inhabitants makes it necessary. The latter are, in this respect, to be cautioned, and any such introduction is to be made known by appropriate means. The courts-martial must base anysentence on the fundamental laws of justice, after they have first impartially examined, however summarily, the facts and have allowed the accused a free defense.
The conqueror can, as administrator of the country and its Government, depose or appoint officials. He can put on their oath the civil servants, who continue to act, as regards the scrupulous discharge of their duties. But to compel officials to continue in office against their will does not appear to be in the interest of the army of occupation. Transgressions by officials are punished by the laws of their country, but an abuse of their position to the prejudice of the army of occupation will be punished by martial law.
Also judicial officers can be deposed if they permit themselves to oppose publicly the instructions of the provisional Government. Thus it would not have been possible, if the occupation of Lorraine in the year 1870–71 had been protracted, to avoid deposing the whole bench of Judges at Nancy and substituting German Judges, since they could not agree with the German demands in regard to the promulgation of sentence.105
Fiscal Policy.
The financial administration of the occupied territory passes into the hands of the conqueror. The taxes are raised in the preexisting fashion. Any increase in them due to the war is enforced in the form of “War levies.” Out of the revenue of the taxes the costs of the administration are to be defrayed, as, generally speaking, the foundations of the State property are to be kept undisturbed. Thus the domains, forests, woodlands, public buildings and the like, although utilized, leased, or let out, are not to be sold or rendered valueless by predatory management. On the other hand it is permitted to apply all surplus from the revenues of administration to the use of the conqueror.
The same thing holds good of railways, telegraphs, telephones, canals, steamships, submarine cables and similar things; the conqueror has the right of sequestration, of use and of appropriation of any receipts, as against which it is incumbent upon him to keep them in good repair.
If these establishments belong to private persons, then he has indeed the right to use them to the fullest extent; on the other hand he has not the right to sequestrate the receipts. As regards the right of annexing the rolling-stock of the railways, the opinionsof authoritative teachers of the law of nations differ from one another. Whilst one section regard all rolling-stock as one of the most important war resources of the enemy’s State, and in consequence claim for the conqueror the right of unlimited sequestration, even if the railways belonged to private persons or private companies,106on the other hand the other section incline to a milder interpretation of the question, in that they start from the view that the rolling-stock forms, along with the immovable material of the railways, an inseparable whole, and that one without the other is worthless and is therefore subject to the same laws as to appropriation.107The latter view in the year 1871 found practical recognition in so far as the rolling-stock captured in large quantities by the Germans on the French railways was restored at the end of the war; a corresponding regulation was also adopted by the Hague Conference in 1899.
Occupation must be real not fictitious.
These are the chief principles for the administration of an occupied country or any portion of it. From them emerges quite clearly on the one hand the duties of the population, but also on the other the limits of the power of the conqueror. But the enforcement of all these laws presupposes the actual occupation of the enemy’s territory and the possibilityof really carrying them out.108So-called “fictitious occupation,” such as frequently occurred in the eighteenth century and only existed in a declaration of the claimant, without the country concerned being actually occupied, are no longer recognized by influential authorities on the law of nations as valid. If the conqueror is compelled by the vicissitudes of war to quit an occupied territory, or if it is voluntarily given up by him, then his military sovereignty immediately ceases and the old State authority of itself again steps into its rights and duties.