Chapter III: Warfare on Land (3)

§ 162. Treason can be committed by a soldier or an ordinary subject of a belligerent, but it can also be committed by an inhabitant of an occupied enemy territory or even by the subject of a neutral State temporarily staying there, and it can take place after an arrangement with the favoured belligerent or without such an arrangement. In any case a belligerent making use of treason acts lawfully, although the Hague Regulations do not mention the matter at all. But many acts of different sorts can be treasonable; the possible cases of treason and the punishment of treason will be discussed below in § 255.

Although it is generally recognised that a belligerent acts lawfully who makes use of the offer of a traitor, the question is controversial[314] whether a belligerent acts lawfully who bribes a commander of an enemy fortress into surrender, incites enemy soldiers to desertion, bribes enemy officers for the purpose of getting important information, incites enemy subjects to rise against the legitimate Government, and the like. If the rules of the Law of Nations are formulated, not from doctrines of book-writers, but from what is done by the belligerents in practice,[315] it must be asserted that such acts, detestable and immoral as they are, are not considered illegal according to the Law of Nations.

[Footnote 314: See Vattel, III. § 180; Heffter, § 125; Taylor, § 490; Martens, II. § 110 (8); Longuet, § 52; Mérignhac, p. 188, and others. See also below, § 164.]

[Footnote 315: See _Land Warfare_, § 158.]

XI

RUSES

Grotius, III. c. 1, §§ 6-18--Bynkershoek, _Quaest. jur. publ._ I.
c. 1--Vattel, III. §§ 177-178--Hall, § 187--Lawrence, §
207--Westlake, II. p. 73--Phillimore, III. § 94--Halleck, I. pp.
566-571--Taylor, § 488--Moore, VII. § 1115--Bluntschli, §§
565-566--Heffter, § 125--Lueder in Holtzendorff, IV. pp.
457-461--Ullmann, § 176--Bonfils, Nos. 1073-1075--Despagnet, Nos.
526-527--Pradier-Fodéré, VI. Nos. 2759-2761--Rivier, II. p.
261--Nys, III. pp. 252-255--Calvo, IV. §§ 2106-2110--Fiore, III.
Nos. 1334-1339--Longuet, §§ 53-56--Mérignhac, pp. 165-168--Pillet,
pp. 93-97--_Kriegsbrauch_, pp. 23-24--Holland, _War_, Nos.
78-79--Bordwell, pp. 283-286--Meurer, II pp. 151-152--Spaight, pp.
152-156--_Land Warfare_, §§ 139-154--Brocher in _R.I._ V. (1873),
pp. 325-329.

[Sidenote: Character of Ruses of War.]

§ 163. Ruses of war or stratagems are deceit employed during military operations for the purpose of misleading the enemy. Such deceit is of great importance in war, and, just as belligerents are allowed to employ all methods of obtaining information, so they are, on the other hand, and article 24 of the Hague Regulations confirms this, allowed to employ all sorts of ruses for the purpose of deceiving the enemy. Very important objects can be attained through ruses of war, as, for instance, the surrender of a force or of a fortress, the evacuation of territory held by the enemy, the withdrawal from a siege, the abandonment of an intended attack, and the like. But ruses of war are also employed, and are very often the decisive factor, during battles.

[Sidenote: Different kinds of Stratagems.]

§ 164. Of ruses there are so many kinds that it is impossible to enumerate[316] and classify them. But in order to illustrate acts carried out as ruses some instances may be given. It is hardly necessary to mention the laying of ambushes and traps, the masking of military operations such as marches or the erection of batteries and the like, the feigning of attacks or flights or withdrawals, the carrying out of a surprise, and other stratagems employed every day in war. But it is important to know that, when useful, feigned signals and bugle-calls may be ordered, the watchword of the enemy may be used, deceitful intelligence may be disseminated,[317] the signals and the bugle-calls of the enemy may be mimicked[318] to mislead his forces. And even such detestable acts[319] as bribery of enemy commanders and officials in high position, and secret seduction of enemy soldiers to desertion, and of enemy subjects to insurrection, are frequently committed, although many writers protest. As regards the use of the national flag, the military ensigns, and the uniforms of the enemy, theory and practice are unanimous in rejecting it during actual attack and defence, since the principle is considered inviolable that during actual fighting belligerent forces ought to be certain who is friend and who is foe. But many[320] publicists maintain that until the actual fighting begins belligerent forces may by way of stratagem make use of the national flag, military ensigns, and uniforms of the enemy. Article 23 (_f_) of the Hague Regulations does not prohibit any and every use of these symbols, but only their _improper_ use, thus leaving the question open,[321] what uses are proper and what are not. Those who have hitherto taught the admissibility of the use of these symbols outside actual fighting can correctly maintain that the quoted article 23 (_f_) does not prohibit it.[322]

[Footnote 316: See _Land Warfare_, § 144, where a great number of legitimate ruses are enumerated.]

[Footnote 317: See the examples quoted by Pradier-Fodéré, VI. No. 2761.]

[Footnote 318: See Pradier-Fodéré, VI. No. 2760.]

[Footnote 319: The point has been discussed above in § 162.]

[Footnote 320: See, for instance, Hall, § 187; Bluntschli, § 565; Taylor, § 488; Calvo, IV. No. 2106; Pillet, p. 95; Longuet, § 54. But, on the other hand, the number of publicists who consider it illegal to make use of the enemy flag, ensigns, and uniforms, even before an actual attack, is daily becoming larger; see, for instance, Lueder in Holtzendorff, IV. p. 458; Mérignhac, p. 166; Pradier-Fodéré, VI. No. 2760; Bonfils, No. 1074; _Kriegsbrauch_, p. 24. As regards the use of the enemy flag on the part of men-of-war, see below, in § 211.]

[Footnote 321: Some writers maintain that article 23 (_f_) of the Hague Regulations has settled the controversy, but they forget that this article speaks only of the _improper_ use of the enemy ensigns and uniform. See _Land Warfare_, § 152.]

[Footnote 322: The use of the enemy uniform for the purpose of deceit is different from the case when members of armed forces who are deficient in clothes wear the uniforms of prisoners or of the enemy dead. If this is done--and it always will be done if necessary--such distinct alterations in the uniform ought to be made as will make it apparent to which side the soldiers concerned belong (see _Land Warfare_, § 154). Different again is the case where soldiers are, through lack of clothing, obliged to wear the apparel of civilians, such as greatcoats, hats, and the like. Care must then be taken that the soldiers concerned do nevertheless wear a fixed distinctive emblem which marks them as soldiers, since otherwise they lose the privileges of members of the armed forces of the belligerents (see article 1, No. 2, of the Hague Regulations). During the Russo-Japanese War both belligerents repeatedly accused each other of using Chinese clothing for members of their armed forces; the soldiers concerned apparently were obliged through lack of proper clothing temporarily to make use of Chinese garments. See, however, Takahashi, pp. 174-178.]

[Sidenote: Stratagems in contradistinction to Perfidy.]

§ 165. Stratagems must be carefully distinguished from perfidy, since the former are allowed, whereas the latter is prohibited. Halleck (I. p. 566) correctly formulates the distinction by laying down the principle that, whenever a belligerent has expressly or tacitly engaged and is therefore bound by a moral obligation to speak the truth to an enemy, it is perfidy to betray the latter's confidence, because it contains a breach of good faith.[323] Thus a flag of truce or the cross of the Geneva Convention must never be made use of for a stratagem, capitulations must be carried out to the letter, the feigning of surrender for the purpose of luring the enemy into a trap is a treacherous act, as is the assassination of enemy commanders or soldiers or heads of States. On the other hand, stratagem may be met by stratagem, and a belligerent cannot complain of the enemy who so deceives him. If, for instance, a spy of the enemy is bribed to give deceitful intelligence to his employer, or if an officer, who is approached by the enemy and offered a bribe, accepts it feigningly but deceives the briber and leads him to disaster, no perfidy is committed.

[Footnote 323: See _Land Warfare_, §§ 139-142, 146-150.]

XII

OCCUPATION OF ENEMY TERRITORY

Grotius, III. c. 6, § 4--Vattel, III. §§ 197-200--Hall, §§
153-161--Westlake, II. pp. 83-106--Lawrence, §§ 176-179--Maine,
pp. 176-183--Halleck, II. pp. 432-466--Taylor, §§
568-579--Wharton, III. §§ 354-355--Moore, VII. §§
1143-1155--Bluntschli, §§ 539-551--Heffter, §§ 131-132--Lueder in
Holtzendorff, IV. pp. 510-524--Klüber, §§ 255-256--G. F. Martens,
II. § 280--Ullmann, § 183--Bonfils, Nos. 1156-1175--Despagnet,
Nos. 567-578--Pradier-Fodéré, VII. Nos. 2939-2988, 3019-3028--Nys,
III. pp. 309-351--Rivier, II. pp. 299-306--Calvo, IV. §§
2166-2198--Fiore, III. Nos. 1454-1481, and Code, Nos.
1535-1563--Martens, II. §§ 117-119--Longuet, §§
115-133--Mérignhac, pp. 241-262--Pillet, pp. 237-259--Zorn, pp.
213-243--_Kriegsbrauch_, pp. 45-50--Holland, _War_, Nos.
102-106--Bordwell, pp. 312-330--Meurer, II. §§ 45-55--Spaight, pp.
320-380--_Land Warfare_, §§ 340-405--Waxel, _L'armée d'invasion el
la population_ (1874)--Litta, _L'occupazione militare_
(1874)--Löning, _Die Verwaltung des General-Gouvernements im
Elsass_ (1874), and in _R.I._ IV. (1872), p. 622, V. (1873), p.
69--Bernier, _De l'occupation militaire en temps de guerre_
(1884)--Corsi, _L'occupazione militare in tempo di guerra e le
relazione internazionale che ne derivano_ (2nd edit. 1886)--Bray,
_De l'occupation militaire en temps de guerre, etc._
(1891)--Magoon, _Law of Civil Government under Military
Occupation_ (2nd edit. 1900)--Lorriot, _De la nature de
l'occupation de guerre_ (1903)--Deherpe, _Essai sur le
developpement de l'occupation en droit international_
(1903)--Sichel, _Die kriegerische Besetzung feindlichen
Staatsgebietes_ (1905)--Nowacki, _Die Eisenbahnen im Kriege_
(1906), pp. 78-90--_Rolin-Jaequemyns_ in _R.I._ II. (1870), p.
666, and III. (1871), p. 311.

[Sidenote: Occupation as an Aim of Warfare.]

§ 166. If a belligerent succeeds in occupying a part or even the whole of the enemy territory, he has realised a very important aim of warfare. He can now not only make use of the resources of the enemy country for military purposes, but can also keep it for the time being as a pledge of his military success, and thereby impress upon the enemy the necessity of submitting to terms of peace. And in regard to occupation, International Law respecting warfare has progressed more than in any other department. In former times enemy territory that was occupied by a belligerent was in every point considered his State property, with which and with the inhabitants therein he could do what he liked. He could devastate the country with fire and sword, appropriate all public and private property therein, kill the inhabitants, or take them away into captivity, or make them take an oath of allegiance. He could, even before the war was decided and his occupation was definitive, dispose of the territory by ceding it to a third State, and an instance of this happened during the Northern War (1700-1718), when in 1715 Denmark sold the occupied Swedish territories of Bremen and Verden to Hanover. That an occupant could force the inhabitants of the occupied territory to serve in his own army and to fight against their legitimate sovereign, was indubitable. Thus, during the Seven Years' War, Frederick II. of Prussia repeatedly made forcible levies of thousands of recruits in Saxony, which he had occupied. But during the second half of the eighteenth century things gradually began to undergo a change. That the distinction between mere temporary military occupation of territory, on the one hand, and, on the other, real acquisition of territory through conquest and subjugation, became more and more apparent, is shown by the fact that Vattel (III. § 197) drew attention to it. However, it was not till long after the Napoleonic wars in the nineteenth century that the consequences of this distinction were carried to their full extent by the theory and practice of International Law. So late as 1808, after the Russian troops had militarily occupied Finland, which was at that time a part of Sweden, Alexander I. of Russia made the inhabitants take an oath of allegiance,[324] although it was only by article 4 of the Peace Treaty of Frederikshamm[325] of September 17, 1809, that Sweden ceded Finland to Russia. The first writer who drew all the consequences of the distinction between mere military occupation and real acquisition of territory was Heffter in his treatise _Das Europaeische Völkerrecht der Gegenwart_ (§ 131), which made its appearance in 1844. And it is certain that it took the whole of the nineteenth century to develop such rules regarding occupation as are now universally recognised and in many respects enacted by articles 42-56 of the Hague Regulations.

[Footnote 324: See Martens, _N.R._ I. p. 9.]

[Footnote 325: See Martens, _N.R._ I. p. 19.]

In so far as these rules touch upon the special treatment of persons and property of the inhabitants of, and public property situated within, occupied territory, they have already been taken into consideration above in §§ 107-154. What concerns us here are the rights and duties of the occupying belligerent in relation to his political administration of the territory and to his political authority over its inhabitants.[326] The principle underlying these modern rules is that, although the occupant does in no wise acquire sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being a military authority over it. As he thereby prevents the legitimate Sovereign from exercising his authority and claims obedience for himself from the inhabitants, he has to administer the country not only in the interest of his own military advantage, but also, so far as possible at any rate, for the public benefit of the inhabitants. Thus the present International Law not only gives certain rights to an occupant, but also imposes certain duties upon him.

[Footnote 326: The Hague Regulations (Section III. articles 42-56), and all the French writers, but also many others, treat under the heading "occupation" not only of the rights and duties of an occupant concerning the political administration of the country and the political authority over the inhabitants, but also of other matters, such as appropriation of public and private property, requisitions and contributions, and destruction of public and private property, violence against private enemy subjects and enemy officials. These matters have, however, nothing to do with occupation, but are better discussed in connection with the means of land warfare; see above, §§ 107-154.]

[Sidenote: Occupation, when effected.]

§ 167. Since an occupant, although his power is merely military, has certain rights and duties, the first question to deal with is, when and under what circumstances a territory must be considered occupied.

Now it is certain that mere invasion is not occupation. Invasion is the marching or riding of troops--or the flying of a military air vessel--into enemy country. Occupation is invasion _plus_ taking possession of enemy country for the purpose of holding it, at any rate temporarily. The difference between mere invasion and occupation becomes apparent by the fact that an occupant sets up some kind of administration, whereas the mere invader does not. A small belligerent force can raid enemy territory without establishing any administration, but quickly rush on to some place in the interior for the purpose of reconnoitring, of destroying a bridge or depôt of munitions and provisions, and the like, and quickly withdraw after having realised its purpose.[327] Although it may correctly be asserted that, so long and in so far as such raiding force is in possession of a locality and sets up a temporary administration therein, it occupies this locality, yet it certainly does not occupy the whole territory, and even the occupation of such locality ceases the moment the force withdraws.

[Footnote 327: See _Land Warfare_, § 343.]

However this may be, as a rule occupation will be coincident with invasion. The troops march into a district, and the moment they get into a village or town--unless they are actually fighting their way--they take possession of the Municipal Offices, the Post Office, the Police Stations, and the like, and assert their authority there. From the military point of view such villages and towns are now "occupied." Article 42 of the Hague Regulations enacts that territory is considered occupied when it is actually placed under the authority of the hostile army, and that such occupation applies only to the territory where that authority is established and in a position to assert itself. This definition of occupation is not at all precise, but it is as precise as a legal definition of such kind of fact as occupation can be. If, as some publicists[328] maintain, only such territory were actually occupied, in which every part is held by a sufficient number of soldiers to enforce immediately and on the very spot the authority of an occupant, an effective occupation of a large territory would be impossible, since then not only in every town, village, and railway station, but also in every isolated habitation and hut the presence of a sufficient number of soldiers would be necessary. Reasonably no other conditions ought to be laid down as necessary to constitute effective occupation in war than those under which in time of peace a Sovereign is able to assert his authority over a territory. What these conditions are is a question of fact which is to be answered according to the merits of the special case. When the legitimate Sovereign is prevented from exercising his powers and the occupant, being able to assert his authority, actually establishes an administration over a territory, it matters not with what means and in what ways his authority is exercised. For instance, when in the centre of a territory a large force is established from which flying columns are constantly sent round the territory, such territory is indeed effectively occupied, provided there are no enemy forces present, and, further, provided these columns can really keep the territory concerned under control.[329] 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 some kind of administration is established, and further provided 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 fact 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 reasonable time make its appearance, was quite sufficient to assert British authority[330] over that vast territory, although it was more than a year before peace was finally established.

[Footnote 328: See, for instance, Hall, § 161. This was also the standpoint of the delegates of the smaller States at the Brussels Conference of 1874 when the Declaration of Brussels was drafted.]

[Footnote 329: This is not identical with so-called _constructive_ occupation, but is really _effective_ occupation. An occupation is constructive only if an invader declares districts as occupied over which he actually does not exercise control--for instance, when he actually occupies only the capital of a large province, and proclaims that he has thereby occupied the whole of the province, although he does not take any steps to exercise control over it.]

[Footnote 330: The annexation of the Orange Free State dates from May 24, 1900, and that of the South African Republic from September 1, 1900. It may well be doubted whether at these dates the occupation of the territories concerned was already so complete as to be called effective. The British Government ought not, therefore, to have proclaimed the 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, p. 326, note 2, and § 265, p. 327, note 1. _The Times' History of the War in South Africa_ (vol. V. p. 251) estimates the number of Boer fighters in May 1901 to be 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.]

It must be emphasised that the rules regarding effective occupation must be formulated on the basis of actual practice quite as much as rules regarding other matters 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.[331]

[Footnote 331: The question is so much controverted that it is impossible to enumerate the different opinions. Readers who want to study the question must be referred to the literature quoted above at the commencement of § 166.]

[Sidenote: Occupation, when ended.]

§ 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 re-advancing enemy, or if the occupant concentrates his forces in a certain place of 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.

[Sidenote: Rights and Duties in General of the Occupant.]

§ 169. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the respective territory and its inhabitants. And all steps he takes in the exercise of this right must be recognised by the legitimate Government after occupation has ceased. This administration 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, on the one hand, totally independent of the Constitution and the laws of the respective territory, since occupation is an aim of warfare, and since 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, he is not the Sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily 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 administrating the country according to the existing laws and the existing rules of administration; he must insure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. Article 43 of the Hague Regulations enacts the following rule which is of fundamental importance: "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 insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

[Sidenote: Rights of the Occupant regarding the Inhabitants.]

§ 170. An occupant having authority over the territory, the inhabitants are under his sway and have to render obedience to his commands. However, the power of the occupant over the inhabitants is not unrestricted, for articles 23, 44, and 45 of the Hague Regulations expressly enact, that he is prohibited from compelling the inhabitants to take part in military operations against the legitimate Government, to give information concerning the army of the other belligerent or concerning the latter's means of defence, or to take an oath of allegiance. 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 the occupant 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[332] from them, may compel them to render services as drivers, farriers, and the like.[333] He may compel them to render services for the repair or the erection of such roads, buildings, or other works as are necessary for military operations.[334] He may also collect the ordinary taxes, dues, and tolls imposed for the benefit of the State by the legitimate Government. But in such case he is, according 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, on the other hand, 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.

[Footnote 332: See above, §§ 147 and 148.]

[Footnote 333: Formerly he could likewise compel them to render services as guides, but this is now prohibited by the wording which article 44 received from the Second Peace Conference. It should, however, be mentioned that Germany, Austria-Hungary, Japan, Montenegro, and Russia have signed Convention IV. with a reservation against article 44, and that in a war with these Powers the old rule is valid that inhabitants may be compelled to serve as guides.]

[Footnote 334: See article 52 of the Hague regulations, and _Land Warfare_, §§ 388-392.]

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_. It must, however, be specially observed that this rule does not at all prevent[335] reprisals on the part of belligerents occupying enemy territory. In case acts of illegitimate warfare are committed by enemy individuals not belonging to the armed forces, reprisals may be resorted to, although practically innocent individuals are thereby punished for illegal acts for which they are neither legally nor morally responsible--for instance, when a village is burned by way of reprisal for a treacherous attack committed there on enemy soldiers by some unknown individuals.[336] Nor does this new rule prevent an occupant from taking hostages[337] in the interest of the safety of the line of communication threatened by guerillas not belonging to the armed forces, or for other purposes,[338] although the hostage must suffer for acts or omissions of others for which he is neither legally nor morally responsible.

[Footnote 335: 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.]

[Footnote 336: See below, § 248.]

[Footnote 337: But this is a moot point; see below, § 259.]

[Footnote 338: 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 and many publicists condemn it; see above, § 116, p. 153, note 1, and below, § 259, p. 319, note 2.]

It must be particularly noted that in the treatment of the inhabitants of enemy territory the occupant need not make any difference between such as are subjects of the enemy and such as are subjects of neutral States.[339]

[Footnote 339: See above,§ 88, and Frankenbach, _Die Rechtsstellung von neutralen Staatsangehörigen in kriegführenden Staaten_ (1910), pp. 46-50.]

And it must be further observed that, according to British and American views--see above, § 100_a_--article 23 (_h_) of the Hague Regulations 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.

[Sidenote: Position of Government Officials and Municipal Functionaries during Occupation.]

§ 171. As through occupation authority over the territory actually passes into the hands of the occupant, he may for the time of his occupation depose all Government officials and municipal functionaries that have not withdrawn with the retreating enemy. On the other hand, he must not compel them by force to carry on their functions during occupation, if they refuse to do so, except where a 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, but he may prevent them from doing so in the name of the legitimate Government.[340] 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 in case he deposes them for the time of the occupation.

[Footnote 340: 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. and he will as a rule do this. Only in the case of article 48 of the Hague Regulations is he compelled to do it.]

[Sidenote: Position of Courts of Justice during Occupation.]

§ 172. The particular position which Courts of Justice have nowadays in civilised countries, makes it necessary to discuss their position during occupation.[341] There is no doubt that an occupant may suspend the judges 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. Where it is necessary, he may set up military Courts instead of the ordinary Courts. 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 laws, especially the Criminal Law, on the basis of which justice is administered, as well as the laws regarding procedure. 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 under the formula "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 the Court to understand that, if the Court 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, &c.," to be used, but they were certainly not obliged to admit the formula preferred by the Court; and the fact that they were disposed to admit another formula than that at first ordered ought to have made the Court accept a compromise. Bluntschli (§ 547) correctly maintains that the most natural solution of the difficulty would have been to use the neutral formula "In the name of the Law."

[Footnote 341: See Petit, _L'Administration de la justice en territoire occupé_ (1900).]