aims of war detrimental to their own country; but the conference struck out the words in italics. It is true that the Oxford Manuel des Lois de la Guerre sur Terre of the Institute of International Law did lay down 1 the rule that an occupant must not compel inhabitants, either to take part in the military operations, or to assist him in his works of attack or defence; but the Hague Conferences did not adopt this rule, and Article 52 of the Hague Regulations prohibits the requisitioning of such services only as imply an obligation to take part in military operations. It is apparent that all attempts to extend the prohibition to services which imply an obligation to take part in military preparations and the like have hitherto failed. During the World War, not only the Germans in Belgium and France,2 but also the Russians in Galicia,3 compelled the inhabitants to construct fortifications and trenches in the rear, although a generous interpretation of Article 52 ought to have prevented them from doing so. It is to be hoped that a future conference will so amend the Hague Regulations as to make the matter clear. However this may be, there is no right to deport inhabitants to the country of the occupant, for the purpose of compelling them to work there. When during the World War the Germans deported to Germany several thousands of Belgian and French men and women, and compelled them to work there, the whole civilised world stigmatised this cruel practice as an outrage. The occupant may collect the ordinary taxes, dues, and tolls imposed for the benefit of the State by the legitimate Government. But in such case he is, accord 1 Article 48 (2). See details in Garner, ii. § 400. See Cybichowski in Z.I., xxvi. (1916), p. 467. 4 See Heuvel in R. G., xxiv. (1917), pp. 261-300; Passelecq, Les Déporta tions belges à la Lumière des Documents allemands (1917); Basdevant, Les Déportations du Nord de la France et de la Belgique en vue du Travail forcé et le Droit international (1917); Garner, ii. §§ 413-430. ing 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 assessment in force, and he is 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. 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.1 It must, however, be specially observed that this rule unfortunately does not at all prevent 2 reprisals by an occupant in case acts of illegitimate warfare are committed by enemy individuals not belonging to the armed forces, although in practice innocent individuals are thereby punished for illegal acts for which they are neither legally nor morally responsible. For instance, a village is burned by way of reprisal for a treacherous attack committed there on enemy soldiers by some unknown individuals.3 Nor does Article 50 prevent an occupant from taking hostages to safeguard lines of communication threatened by guerillas not belonging to the armed forces, or for other purposes,5 provided that he does not kill them, 1 The Germans during their occupation of Belgium and Northern France in the World War regularly inflicted general penalties. See details in Garner, ii. §§ 403-412, where the interpretation of Article 50 is also discussed. 2 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; and Garner in A.J., xi. (1917), pp. 511-537. 3 See below, $$ 248, 250, where objections against the existing law are formulated. This was the justi VOL. II. fication alleged by Germany for the burning of Louvain. Garner, i. §§ 282-284. But this is a moot point; see below, § 259. 5 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 it, and many publicists condemn it; see above, § 116 n., and below, § 259 n. Position of Govern Municipal although they must suffer for acts or omissions of others, for which they are neither legally nor morally responsible. In the treatment of the inhabitants of enemy territory, the occupant need not make any difference between subjects of the enemy and subjects of neutral States; 1 and resident subjects of neutral States have no claim, any more than have subjects of the enemy, against him for compensation for losses sustained in consequence of legitimate acts 2 of war on his part.3 § 171. As, through occupation, authority over the ment Offi- territory actually passes into the hands of the occupant, cials and he may, for the time of his occupation, depose all Function- Government officials and municipal functionaries that during Oc. have not withdrawn with the retreating enemy. On cupation. the other hand, he must not compel them by force to aries 1 See above, §88, and Frankenbach, 2 Hardman's case (see A.J., vii. a neutral Power resident in an enemy country during military occupation cannot legally claim compensation for losses sustained by an act of war on the part of the occupant; but the British Government maintained that the burning of the houses in Siboney was not an act of war, but simply a measure for better securing the health of the American troops. The case was one of those decided in 1913 by the British and American Claims Commission. The arbitrators gave their award against the British Government, because they considered the act to be an act of war, but recommended the American Government to indemnify Hardman for the loss suffered, as an act of grace. But a belligerent may, of course, grant compensation nevertheless. Thus when in 1914, during the World War, after the occupation of Liége, the Germans executed a number of civilians, and among them five Spaniards, by way of reprisal for alleged attacks by the civilian population upon German soldiers, they granted monetary compensation to the families of the unfortunate Spaniards, although they asserted that their execution was justified as reprisals. carry on their functions during occupation, if they refuse to do so, except where 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, though he may prevent them from doing so in the name of the legitimate Government.1 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 are deposed by him for the time of the occupation. of Courts cupation. § 172. The particular position which courts of justice Position have nowadays in civilised countries, makes it necessary of Justice to discuss their position during occupation. As has during Ocalready been explained, the British and American interpretation of Article 23(h) of the Hague Regulations is that it 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; and Article 43 provides that the occupant must respect, unless absolutely prevented, the laws in force in the country. But an occupant may, where necessary, set up military courts instead of the ordinary courts; and 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 1 Many publicists assert 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, 2 See Petit, L'Administration de laws, especially the Criminal Law, on the basis of which justice is administered, as well as the laws regarding procedure.1 There is no doubt that an occupant may suspend the judges 2 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. He has, however, no right to constrain the courts to pronounce their verdicts in his name, although he need not allow them to pronounce verdicts in the name of the legitimate Government. A case that happened during the Franco-German War may serve as an illustration. In September 1870, after the fall of the Emperor Napoleon and the proclamation of the French Republic, the Court of Appeal at Nancy pronounced its verdicts '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 it to understand that, if it 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 pronounce 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, etc.,' to be used, but they were certainly not obliged to admit the formula preferred 1 As to the practice followed by the Germans in occupied Belgium during the World War, see Garner, ii. §§ 365-367, 373-376. 2 As to the removal of Jewish judges by the Russians during their occupation of Lemberg in the World War, see Cybichowski in Z.I., xxvi. (1916), at p. 452. |