1

vened and required the immediate release of the accused, and the judges were ordered to discontinue all proceedings against them. Persisting in their course, several judges of the court were arrested and deported to Germany where they were confined in the same prison with Burgomaster Max, who had been deported some two years earlier. A few days later (February 10) the chief of the German administration for the district of Flanders sent each member of the court of appeal a notice to the effect that in consequence of their participation in the proceedings referred to above, they had "associated themselves in a political manifestation," and that henceforth they would be prohibited from exercising their functions. On February 11, the court of cassation met and after listening to an address of the procurator-general in which he reviewed the conduct of the Flemish "activists" and the proceedings of the German authorities in respect to the attitude of the court of appeals, adopted a resolution declaring that the interference of the German authorities with the administration of justice was incompatible with the independence of the judiciary and with the laws which governed them, and that the arrest of the judges and the suppension of the counsellors of the court of appeal was contrary to the law of nations and to the solemn promises made by the German authorities. The court thereupon announced that without abdicating its functions, it would suspend its sittings for the present.2 On the following day the civil tribunal and

1 Text in Passalecq, p. 50. On February 19, the governor-general addressed a letter to the procurator-general in which he defended the dismissal of the judges of the court of appeal. "It is contrary to all reason," he said, "that in occupied country the courts, which are under the authority of the occupying power, should be allowed to take jurisdiction of offences against the dispossessed power with which the occupying power finds itself at war. The attitude of the court of appeal constitutes a wilful political demonstration, and it compelled me to interdict the exercise of their functions to these judges who misunderstand to such a point the conditions to which the regular performance of their duties were subject during the period of occupation." As to the conduct of the court of cassation it was regrettable that it had failed to recognize legally les faits accomplis and the consequences which result therefrom from the point of view of international law, and instead of abstaining from every attitude of hostile manifestation, had joined with the court of appeals and sacrificed their duty toward the Belgian people— a duty which required them to continue in the exercise of their functions." Text of the letter in Passalecq, pp. 67-69.

2 On February 25, 1918, the court of cassation met again and unanimously adopted an arrêt in which it defended at length its decision of February 10, again affirmed that the Belgian courts were within their rights in taking jurisdiction

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the tribunal of commerce of Brussels decided unanimously to follow the action of the supreme court. Other courts quickly followed their example and with them the members of the bar until eventually practically the entire magistrature of the country had ceased to function.

§ 378. The Germans Take over the Administration of Justice in Belgium. Against this "strike" of the judges the German authorities took quick and heroic action. On March 26, governor-general Falkenhausen issued a notice in which, adverting to the action of the courts throughout Belgium in suspending their functions, he informed the people that they would have "to bear the consequences." The notice added:

"Conformably to article 43 of the Hague convention concerning the laws and customs of war on land I have ordered the organization of German tribunals which shall be charged with the maintenance of order and public safety. Until the entry into activity of these tribunals the military commandants will be charged with the repression of crimes and misdemeanors in pursuance of Par. 18, line 3, of the Kaiserliche Verordnung of December 28, 1899." 1

On April 19 appeared two decrees providing for the establishment of new tribunals to take the places of those which had declined to continue their functions.2 The first decree provided that repressive justice in Belgium should be administered by Imperial German tribunals; that the language employed should be German; that they should apply the law as laid down in the Belgian criminal code, but that they should pronounce only penalties prescribed by the German Imperial criminal code; that the procedure followed should be that of the German Imperial code of criminal procedure, and that no appeal would be allowed from their decisions. The second decree provided for the creation of a set of tribunals for the administration of justice in civil matters, likewise in accordance with German procedure and in the German language.

These measures stirred the popular indignation to a high pitch, and on June 5 the Belgian government addressed a long

of plots and conspiracies directed against the integrity of the country by Belgian citizens, denied that it was a matter which concerned the German authorities, and denounced the conduct of the German administration as an attack upon the dignity and independence of the Belgian courts. Text in Passalecq, pp. 71-74. 1 Text in Passalecq, p. 76

2 Texts, ibid., pp. 125-132

protest to the governments of the allied and neutral powers, in which it denounced the action of the German authorities as being not only contrary to the constitution and laws of Belgium, but in violation of article 43 of the Hague convention and destructive of the rights and independence of the Belgian people.1 The protest, however, was without result, and the judicial régime thus set up in Belgium continued until the end of the

war.

$379. The German Régime of Criminal Repression in Belgium. The system of criminal repression established in Belgium by the Germans was one of great rigor and severity, being quite in accord with their traditional theory of military necessity. As has been said, the German Imperial military criminal code was introduced into Belgium and applied with rigor. Article 57 creates the crime of war treason (Kriegsverrath) and enacts that all persons who on the field are guilty of this crime shall be condemned to imprisonment for not less than 10 years or for life. Article 58 enumerates twelve separate offences which shall be regarded as war treason if done with the object of helping the enemy or prejudicing the German or allied troops. Article 160 provides that foreigners who commit these acts within the theatre of war or in territory occupied by the German troops shall be punished equally with Germans who commit them. In Belgium, therefore, all persons, Belgians as well as Germans, were liable to the penalties of war treason. In short, what was war treason for a German was war treason for foreigners. May a military occupant apply his

1 Text in Passalecq, pp. 79-84. Cf. also 45 Clunet, 1122, 1132 ff., where the German treatment of the Belgian magistrature is criticised by two Swiss writers. Cf. also Van der Essen, Petite Histoire de l'Invasion, pp. 75 ff.; the numerous protests in Passalecq, op. cit., pp. 89 ff., and Whitlock, Belgium, Vol. I, ch. 62.

2 The right of the German government to apply its own criminal code in foreign territory under the occupation of its armies has been attacked by various writers. Cf., e.g., M. de Laval's address entitled Prussian Law as Applied in Belgium referred to above. Cf. also an article by a Swiss jurist in 44 Clunet, 518 ff. The question, however, is debatable.

The offences enumerated include those punishable by art. 90 of the German criminal code: the destruction of railways and telegraphs; betraying the secrets of the password; falsification of service orders or communications; serving as guides to the enemy or deceiving the Germans when serving as guides for them; causing trouble to or deceiving the German troops in the presence of the enemy; entering into communication with the enemy concerning military matters; spreading hostile information in the army; failing to give legitimate help to the German troops; allowing prisoners to escape, and furnishing the enemy with signals.

own law respecting war treason to the inhabitants of occupied territory? May a foreigner commit war treason against the authority of a military occupant?

§ 380. Criticism of the German Theory of War Treason. Professor J. H. Morgan in a paper read before the Grotius Society of London in 1916 criticised the term "war treason' as a "hybrid," a "bastard," and an "intellectual outrage" of German invention, "one hardly recognized by English and French jurists and one embodying a conception based on the assumption that the effect of occupation is to transfer the allegiance of the inhabitants to the occupying power-a conception which is contrary to the fundamental notion of treason." A military occupant, he argued, has no lawful right to extend the law of treason to the inhabitants of occupied territory, and he added, that it is unjust to punish as a traitor such an inhabitant who misguides an enemy whom he is forced to serve, or who gives his own army information or assistance.1 The injustice of so treating the inhabitants of occupied territory may readily be admitted, but the weight of authority and practice do not justify the view adopted by Professor Morgan. On the contrary, the great majority of writers on international law, as well as the military manuals, generally recognize the crime of war treason, an offence that may be committed by the inhabitants of occupied territory equally with the subjects of the occupying power, this on the theory that occupation creates a status of temporary allegiance which the inhabitants owe the occupying power so long as the period of effective occupation continues.2 The British manual of military law states that the

1 Procs. of the Grotius Society, Vol. II, pp. 161 ff. Westlake, International Law, Pt. II, p. 100, likewise criticises the term "war treason" as applied to acts committed by the inhabitants of occupied territory as an exceptional relic of the time when occupation meant conquest and transfer of allegiance. Such acts, he says, cannot be regarded as treason without violating the modern view of the nature of military occupation, and without introducing the notion of moral fault into an invader's view of what is detrimental to him.

? The doctrine of temporary allegiance is well established. Cf. Dana's Wheaton, p. 436; Halleck, Int. Law, ch. 32, sec. 14; Taylor, Int. Pub. Law, sec. 569; Spaight, War Rights on Land, pp. 333-335, and various other authorities cited by Oppenheim in an article on "War Treason" in the Law Qu. Review, July, 1917, where the matter is fully considered. Cf. also his article entitled, "The Legal Relations between an Occupying Power and the Inhabitants,” in the same Review for October, 1917, and an article by a Belgian jurist, Chas. de Visscher, entitled L'Occupation de Guerre, in the same Review for January, 1918. Among French writers who

inhabitants of occupied territory who give information to the enemy may be punished for war treason. Even other offences committed by private individuals, such as damaging railways, telegraphs, allowing prisoners to escape, conspiracy against the occupying forces, intentional misleading of enemy troops, voluntarily assisting the enemy, fouling the sources of the water supply, damage or alteration of military notices and sign posts, concealing animals, vehicles, supplies, and fuel in the interest of the enemy, circulating proclamations in the interest of the enemy, and the like, are also classed as war treason.1 The American Rules of Land Warfare (1914) reproduce almost identically the above article from the British manual. The French manual, however, condemns the doctrine of war treason. It recognizes that hostile acts committed by the inhabitants of occupied territory against the authority of the occupant may be severely punished, but it adds that such acts may not be qualified as treason, treason being exclusively restricted to acts committed by individuals against their own country in the interest of the enemy. It is quite evident from this review of the authorities and of the law as embodied in the military manuals that the doctrine of war treason as applied to hostile acts committed by the inhabitants of occupied territory is well established in England and the United States, and that it is not without recognition in France. It is an error, therefore, to stigmatize it as a German doctrine, although it will readily be admitted that the severity, not to say brutality, with which the theory was applied in Belgium was peculiarly German.

recognize the doctrine of war treason as applied to the inhabitants of occupied territory may be mentioned Bonfils (Manuel de Droit Int. Pub., sec. 1154), Despagnet (Cours de Droit Int. Pub., sec. 538), Longuet (Le Droit Actuel de la Guerre Terrestre, p. 122), Merignhac (Traité du Droit Int. Pub., Vol. III, p. 290), and Guelle (Précis des Lois de la Guerre, Vol. I, pp. 129–130). Pillet, however, criticises the whole notion of war treason as a German doctrine based on the assumption that the population of occupied territory is bound by the same fidelity towards the enemy which it owes to its own country. Acts qualified by the Germans as war treason, he says, may be severely punished, but it is wrong to regard them as treason. Les Lois Actuelles de la Guerre, p. 208.

1 Sec. 445.

2 Art. 372. Cf. also the elaborate provisions in respect to war traitors in the Instructions for the Government of the United States Armies in the Field (1863), secs. 90-102.

3 Les Lois de la Guerre Continentale, ed. by Jacomet, art. 71.