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 1 As to the restrictions upon personal liberty and patriotic demonstrations imposed on occupied Belgium during the World War, see Garner, ii. § 366-367. 3 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. * 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 4 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 War the old rule was valid that inhabitants may be compelled to serve as guides. 2 § 391. 3 See above, §§ 116 n., 126 n. 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 down1 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. 4 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. * 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. * See below, §§ 248, 250, where objections against the existing law are formulated. This was the justiVOL. II. fication alleged by Germany for the burning of Louvain. Garner, i. §§ 282-284. 4 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. |