constantly sent round the territory, it is indeed effectively occupied, provided that there are no enemy forces present, and these columns can really keep it under control.1 Again, when an army is marching on through enemy territory, taking possession of the lines of communication and the open towns, surrounding the fortresses with besieging forces, and disarming the inhabitants in open places of habitation, the whole territory left behind the army is effectively occupied, provided that some kind of administration is established, and that, as soon as it becomes necessary to assert the authority of the occupant, a sufficient force can within reasonable time be sent to the locality affected. The conditions vary with those of the country concerned. When a vast country is thinly populated, a smaller force is necessary to occupy it, and a smaller number of centres need be garrisoned than in the case of a thickly populated country. Thus, the occupation of the former Orange Free State and the former South African Republic became effective in 1901 some time after their annexation by Great Britain and the degeneration of ordinary war into guerilla war, although only about 250,000 British soldiers had to keep up the occupation of a territory of about 500,000 square miles. The facts that all the towns and all the lines of communication were in the hands, and under the administration, of the British army, that the inhabitants of smaller places were taken away into concentration camps, that the enemy forces were either in captivity or dispersed into comparatively small guerilla bands, and finally, that wherever such bands tried to make an attack, a sufficient British force could within reason 1 This is not so-called constructive occupation, but is really effective occupation. An occupation is constructive only if an invader declares districts as occupied over which he does not actually exercise control for instance, when he actually occupies only the capital of a large province, yet proclaims that he has thereby occupied the whole of the province, although he does not take any steps to exercise control over it. Occupation, when ended. Rights and able time make its appearance, were quite sufficient to assert British authority 1 over that vast territory, although it was more than a year before peace was finally established.2 § 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 readvancing enemy, or if the occupant concentrates his forces in a certain place on 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. § 169. As the occupant actually exercises authority, Duties in and as the legitimate Government is prevented from general exercising its authority, the occupant acquires a temOccupant. porary right of administration over the territory and its inhabitants; and all steps he takes in the exercise of the 1 It may well be doubted whether, when these territories were annexed (see above, i. § 239), their occupation could be called effective. The British Government ought not, therefore, to have proclaimed their 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 asserts the contrary; see also, below, §§ 264, 265. The Times History of the War in South Africa (v. p. 251) estimates the number of Boer fighters in May 1901 to have been 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. The annexation by Italy, during the TurcoItalian War, of Tripoli and Cyrenaica in November 1911, was likewise premature. See above, i. § 239, and Rapisardi-Mirabelli in R.I., 2nd Ser. xv. (1913), pp. 527-544. But see also Tambaro in the Jahrbuch des Völkerrechts, i. (1913), pp. 583629, who asserts the contrary. 2 The rules regarding effective occupation must be formulated on the basis of actual practice quite as much as other rules 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. of this right must be recognised by the legitimate Government after occupation has ceased. But as the right of an occupant in occupied territory is merely a right of administration, he may neither annex it, while the war continues, nor set it up as an independent State, nor divide it (as Germany during the World War divided Belgium 1) into two administrative districts for political purposes. Moreover, the administration of the occupant 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 totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare, and 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 circumstances 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, as he is not the sovereign of the territory, he has no right to make changes in the laws, or in the administration, other than those which are temporarily 3 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 administering the country according to the existing laws and the existing rules of administration; he must ensure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. Fundamentally important is Article 43 of the Hague occupant of such neutral territory as has become the theatre of war, see above, § 71. 1 Garner, ii. § 372. * See below, § 172. 3 There is no doubt therefore that the conversion by the Germans in occupation of Belgium during the World War of the University of Ghent into a Flemish institution was unlawful. See details in Garner, ii. §§ 368-370. Unlawful also was the interference by the Russians, while in occupation of Lemberg, with the schools and the language used for instruction. See Cybichowski in Z.I., xxvi. (1916), at pp. 453-457. Rights of the Regulations: The authority of the legitimate Power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.' § 170. An occupant having military authority over Occupant the territory, the inhabitants are under his Martial regarding Law, and have to render obedience to his commands.1 habitants. Their duty to obey does not, of course, arise from their the In own Municipal Law, nor from International Law, but from the Martial Law of the occupant to which they are subjected. However, the power of the occupant over the inhabitants is not unrestricted, for Articles 23, 44, and 45 of the Hague Regulations 2 expressly enact that he is prohibited from compelling the inhabitants to take part in military operations against the legitimate Government, or to give information concerning the army of the other belligerent or his means of defence. Nor may he compel them to take an oath of allegiance. Since the authority of the occupant is not sovereignty, the inhabitants owe no temporary allegiance to him. 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 attitude against him 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 from them. He may compel them to render services as drivers or farriers, and may compulsorily employ them to bury the dead, collect and 3 1 As to the restrictions upon personal liberty and patriotic demonstrations imposed on occupied Belgium during the World War, see Garner, ii. § 366-367. 2 Although the Hague Regulations cannot literally be applied in occupied enemy colonies populated by natives and having only a few white settlers, the latter must not be deported, unless it is a military necessity to do so. 3 See above, §§ 147, 148. remove the wounded, and bring up stores, supplies, baggage, and the like,1 provided-see Article 52 of the Hague Regulations--the services required do not oblige them to take part in military operations against their own country. He may compel them to render services for the repair of roads, bridges, buildings or other works damaged or destroyed by military operations, or necessary either for the administration of the country or for the needs of the army of occupation, always provided that the services do not involve taking part in military operations. Yet the meaning of taking part in military operations' is somewhat controversial. Many writers maintain, and Land Warfare 2 likewise asserts, that the words extend to the construction of bridges, fortifications, and the like, even behind the front. But the practice 3 of belligerents has always distinguished between military operations and military preparations, and has not condemned as inadmissible the compulsion of inhabitants to render assistance in the construction of military roads, fortifications, and the like behind the front, or in any other works in preparation for military operations. No doubt attempts have been made to obtain the prohibition of the requisitioning of even such services as only involve taking part in military preparations. Thus the Russian draft put before the Conference of Brussels in 1874 proposed to stipulate that the population of an occupied province might not be forced to take part in the military operations against their own Government, or in such acts as are contributory to the realisation of the 1 Formerly he could likewise compel them to render services as guides, but this was prohibited by the wording which Article 44 received from the Second Hague Conference. But Germany, Austria-Hungary, Japan, Montenegro, and Russia signed with a reservation against Article 44, so that in the World 3 See above, §§ 116 n., 126 n. |