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§ 375. Right of a Military Occupant to Establish Special Tribunals. The right of a military occupant to deprive the existing courts of their jurisdiction of offences against the authority of the occupying power as well as of offences against persons belonging to his armed forces is recognized by most writers on international law, and in practice military occupants have usually acted in accordance with this theory. Writers on international law are in substantial agreement, however, that the existing body of civil and criminal law ought in the main to be respected by military occupants and should not be altered or abrogated except in so far as their military security or interests require. Article 43 of the Hague convention of 1907 respecting the laws and customs of war on land thus states the rule:

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and insure as far as possible public order and safety (vie publique) while respecting, unless absolutely prevented, the laws in force in the country."

1 For example, during the war between the United States and Mexico (18461848) General Scott organized special tribunals called "military commissions" in the territory under his occupation and gave them jurisdiction of cases in which the parties were Americans and Mexicans only. Cf. General Scott's Autobiography, Vol. II, pp. 393, 541. Similar tribunals were organized by the Federal authorities in the Southern States during the Civil war. Cf. Birkhimer, Military Government and Martial Law, pp. 138, 147; also ch. 9. Cf. also Winthrop, Military Law, Vol. I, p. 961, and Dunning, Essays on the Civil War and Reconstruction. As to the practice in Mississippi cf. my Reconstruction in Mississippi, pp. 169, 184.

2 Holland (Laws of War on Land, p. 53) remarks that a military occupant will hardly be justified in changing the rules of private law, e.g., those relating to property, contract, and domestic relations. Cf. also Geffcken's Heffter, sec. 131, where it is said that the existing laws remain in force, except where the necessities of war make changes imperative. Cf. also Spaight, War Rights on Land, pp. 355-356; Westlake, Int. Law, Vol. II, p. 96, and Hall, Int. Law, p. 465, who says an invader is forbidden as a general rule to vary or suspend laws affecting property and private personal relations or to regulate the moral order of the community. Some French writers appear to allow military occupants very little discretion. Cf., e.g., Pillet, Les Lois Actuelles de la Guerre, p. 241, who says, "All the laws remain intact"; but it is not clear that he denies the right of the military occupant to alter them to meet the new situation caused by the occupation. Bonfils (Droit Int. Pub., sec. 1166) contends that the inhabitants of the territory occupied cannot be subjected to the criminal laws of the occupying State, except in so far as it concerns crimes and misdemeanors against the occupying army, its soldiers, and officers. The existing courts, he says, remain, and they continue to render justice in the name of the government which established them. The attempt of the Germans in 1870 to compel the French courts to render their judgments in the name of the military occupant was an abuse of power and was a confusion of military occupation with sovereignty. Ibid., sec. 1169; cf. also Calvo, Vol. IV, sec. 2186, and Pillet, p. 248.

This principle is laid down in many military codes. Thus the British manual of military law affirms that neither the ordinary civil nor the ordinary criminal jurisdiction in force in the home territory of the military occupant is considered to extend over occupied territory; therefore the civil and penal laws of the occupied country continue as a rule to be valid, the courts which administer them are permitted to sit, and all crimes of the inhabitants, not of a military nature or not affecting the safety of the army, are left to their jurisdiction. If, it adds, the exigencies of the war demand, it is within the power of the occupant to alter or suspend any of the existing laws (such e.g., as are detrimental to his military interests) or to promulgate new ones; but important changes can seldom be necessary and should be avoided as far as possible.1 The American Rules of Land Warfare lay down the same rule regarding respect for the ordinary civil and criminal laws, and as to the courts it declares that "all crimes not of a military nature and which do not affect the safety of the invading army are left to the jurisdiction of the local courts."2

The French manual adopts substantially the same view.

"The existing laws," it says, "shall be respected in their totality, save those which relate to recruiting, the liberty.of the press and the right of assembly." The existing tribunals of the occupied territory," it adds, "shall continue to exercise their functions and judge all délits committed by the inhabitants, save those which involve injury (atteinte) to the security of the occupying army. No derogations from this principle are allowable, except those imposed by the necessities of war.'

Even the manual of the German general staff admits that the promulgation of new laws or the abolition or modification of existing laws is to be avoided except when imperatively demanded by military necessity, such, for example, as in the case of the press, assembly, elections, etc. The civil and criminal courts, it adds, remain in force; martial law and exceptional

1 Secs. 363, 364, 366. Sec. 368 says: "The ordinary courts of justice and the laws they administer should be suspended only when the refusal of the judges and magistrates to act make it necessary. In such cases the occupant must establish courts of his own and make this measure known to the inhabitants."

2 Art. 299.

The British manual adds to these exceptions, laws relating to the suffrage and the right to bear arms.

Les Lois de la Guerre Continentale, p. 121 (ed. by Jacomet).

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tribunals are permissible only when the behavior of the inhabitants make it necessary.1 This is the doctrine and practice of the United States.2

It would seem, therefore, from the opinions of the text writers, the provisions of the military codes, and the practice in recent wars that a military occupant may not alter the existing body of law except in so far as its provisions are incompatible with the new order of things resulting from the occupation and except in so far as modification may be necessary for the maintenance of the public order and the protection of the safety and security of the occupying authorities. In short, the modifications introduced must be founded on consideration of military necessity. In the second place, he may not lawfully set aside the ordinary jurisdiction of the existing courts and establish special military tribunals except for the trial of offences committed against the authority of the occupant and such offences as involve his safety and respect for his authority. In short, the jurisdiction of such tribunals must be limited to crimes of a "military nature." 4

1 French trans. by Carpentier, pp. 144-146. Loening, a well-known German authority, remarks that the existing tribunals cannot be displaced so long as the rights of the occupant are not violated by them. Rev. de Droit Int. et de Lég. Comp., Vol. V, p. 94.

2 Cf. Birkhimer, Military Government and Martial Law, ch. VI, who says the United States during the Civil war and the Spanish-American war acted on the principle that the existing laws in occupied territory remained in full force so far as not incompatible with the objects and conduct of the war. During the Russo-Japanese war the Chinese tribunals were as a general rule allowed by the Japanese authorities to administer justice, except in the case of offences against the Japanese army. Ariga, La Guerre Russo-Japonaise, p. 410. Likewise during the Chino-Japanese war the Japanese authorities permitted the existing tribunals to try offences in the territory occupied and according to Chinese law, except those against the Japanese army. Ariga, La Guerre Sino-Japonaise, ch. 13, and Pillet, op. cit., p. 242, note 1. During the South African war the British authorities applied the law of the Transvaal in the occupied territories, and offences affecting the army or its interests were dealt with under that law. On account of the lack of local judges it became necessary to establish certain special courts to deal with offences under the law thus applied. Spaight, pp. 357-358.

• Professor Oppenheim states the generally accepted view when he says that the military occupant "must not alter the local laws according to discretion; he must respect them and leave them in force unless absolutely prevented by military necessity"; and he points out that military occupants are limited in this matter not only by the express prohibitions of the Hague convention, but by the "usages established between civilized nations,” by the “"laws of humanity," and by the "requirements of the public conscience." "Legal Relations between an Occupying Power and the Inhabitants," Law. Quar. Review, October, 1917, p. 5.

Cf. the American Rules of Land Warfare, art. 299.

§ 376. German Practice Criticised. But the Germans in Belgium unquestionably went further than this. They not only altered various provisions of the Belgian criminal code and introduced new laws in respect to the press and assembly, which was quite within their legal rights, but they also introduced a new code of labor legislation and promulgated a large number of new laws in respect to trade, education, health, language, business, and ordinary industrial pursuits, such as agriculture, stock breeding, the slaughtering of animals for food, the muzzling of dogs, the feeding of animals, the planting and harvesting of crops, the sale of produce, the tanning of hides, the conservation of foods, and hundreds of other matters which had little or no connection with the maintenance of the public order or the protection and security of the occupying forces. As stated above, heavy penalties were prescribed for violation of these ordinances, and the newly established military courts were given jurisdiction of offences against them, almost without exception. The net result was, as the Belgians charged, to supersede the great body of existing legislation of the country and to hand over to the German military courts the larger part of the ordinary jurisdiction of the Belgian tribunals. They even went, as has been said, to the length of altering the law of tenancy and of depriving the ordinary courts of jurisdiction over disputes between renters and landlords and conferring it upon special tribunals organized by the German authorities.1 Fin

1 The question of the legal right of the military occupant to promulgate an ordinance of this kind which had no connection with the maintenance of public order or the security of the occupying forces, and whether the courts of Belgium might before applying it inquire into its validity, was presented to the courts of appeal of Brussels and Liège, and conflicting decisions were rendered. The decision of the court of appeal of Brussels was then taken to the court of cassation for final determination. The court of cassation, relying upon the terms of art. 43 of the Hague convention of 1907 respecting the laws and customs of war on land, which imposes upon belligerents an obligation to respect the laws in force and not to depart from them except in case of absolute necessity, reached the conclusion, that an ordinance relating to contracts for hire could not be justified by “absolute necessity," and that consequently the German ordinance in question was not within the lawful right of the belligerent promulgating it. Nevertheless, it concluded the ordinance was obligatory on all persons subject to the jurisdiction of the occupying power, and it must be applied by the national tribunals. This, because the refusal of the judicial authorities to give effect to it would only precipitate a conflict between them and the military occupant, which would of course end in the triumph of the latter. In short, derogations from the existing laws are binding upon the inhabitants and should be obeyed whether they are justifiable or not.

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ally, it may be added, the German military criminal code was applied in Belgium in all cases involving offences against the German troops or against German authority.1

§ 377. Measures against the Belgian Judiciary in 1918. The last year of the German occupation of Belgium brought still more serious encroachments upon the rights of the Belgian magistrature in consequence of its attitude toward the Flemish question. In January, 1918, a group of Belgian senators and deputies addressed a letter to the court of appeals of Brussels in which they denounced the activities of the so-called "Council of Flanders" as revolutionary and treasonable and demanded that its members be prosecuted for violation of certain articles of the Belgian criminal code. The court after considering the request decided that the offences charged constituted crimes and délits punishable under the criminal code, and it directed the State's attorney to institute an examination with a view to the prosecution of the members of the "Council." Thereupon several of the "activists" were arrested, and the examination was begun. At this juncture the German authorities interThis is the view of the authorities generally. Cf. Westlake, Vol. II, p. 97. The text of this decision may be found in International Law Notes for September, 1916, pp. 136-138. Text of the decision of the Court of Appeal of Liége which was affirmed by the Court of Cassation in the above mentioned case, 44 Clunet, pp. 1809 ff. See also the Comment of de Visscher in 45 Clunet, pp. 1090, ff. In May 1919 the French Court of Douai rendered a decision holding that the action of the German military governor at Maubeuge (Nov. 1914) in creating a tribunal charged with applying French law in civil and correctional matters was contrary to Article 43 of the Hague Convention and consequently the judgments of such a tribunal were invalid. Text of the decision in 46 Clunet (1919) p. 770. 1 Par. 161 of the German military criminal code provides that "a foreigner or a German who in territory occupied by German troops, commits an act punishable under the laws of the Empire against troops or against any authority established by order of the Emperor shall be punished exactly as if he committed it in Federal territory." This extension of the German criminal law to foreign territory temporarily under German occupation is criticised by a Swiss jurist in 44 Clunet, 518. Cf. also De Laval's address on Prussian Law as Applied in Belgium, loc. cit. But the criticism is not entirely convincing.

? Among other things the "council of Flanders" openly proclaimed its sympathy with the German separatist designs and sent a deputation to Berlin to concert with the German authorities for the detachment of Flanders from the rest of Belgium. At the same time they proclaimed the "autonomy" of Flanders and invited the German government to recognize them as the body entitled to speak for the Flemish population.

It may be remarked in this connection that the great majority of the fortyeight members of the court were of Flemish nationality. Passalecq, La Magistrature Belge contre le Despotisme Allemand, p. 44.