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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 buglecalls may be ordered, the watchword of the enemy may be used, deceitful intelligence may be disseminated,1 the signals and the bugle-calls of the enemy may be mimicked 2 to mislead his forces. And even such ugly acts 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 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, what use is a proper one and what not.

5

See the examples quoted by Pradier-Fodéré, VI. No. 2761. 2 See Pradier-Fodéré, VI. No. 2760.

The point has been discussed above in 162.

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,

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and uniforms, even before an actual attack, is daily growing; see, for instance, Lueder in Holtzendorff, IV. p. 458; Mérignhac, p. 166; Pradier-Fodéré, VI. No. 2760; Bonfils, No. 1074; Kriegsgebrauch, p. 24. As regards the use of the enemy flag on the part of men-of-war, see below, in § 211.

5 Some writers maintain that article 23 (f) of the Hague Regu. lations has settled the controversy, but they forget that this

Strata

gems in

Perfidy.

Those who have hitherto taught the admissibility of the use of these symbols outside actual fighting can correctly maintain that the quoted article 23 (ƒ) does not prohibit it.1

§ 165. Stratagems must be carefully distinguished contradis- from perfidy, since the former are allowed, whereas tinction to 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 deceive the latter's confidence, because it contains a breach of good faith. 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 alluring 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 has so deceived him. If, for instance, a spy of the

article speaks only of the improper
use of the enemy ensigns and
uniform.

1 Different from the use of the
enemy uniform for the purpose of
deceit is 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 make it appar-
ent to which side the soldiers con-
cerned belong (see Holland, War,
No. 64). Again different is the
case where soldiers are through
lack of clothing obliged to wear
apparel of civilians, such as great-

coats, hats, and the like. Care must be taken here 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 I, 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.

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.

XII

QCCUPATION OF ENEMY TERRITORY

Grotius, III. c. 6, § 4-Vattel, III. §§ 197-200-Hall, $$ 153-161-Law. rence, § 200-201-Maine, pp. 176-183-Halleck, II. pp. 432-466— Taylor, §§ 568-579-Wharton, III. §§ 354-355-Bluntschli, §§ 539-551 -Heffter, §§ 131-132-Lueder in Holtzendorff, IV. pp. 510-524— Klüber, §§ 255-256-G. F. Martens, II. § 280-Ullmann, §§ 155-156— Bonfils, Nos. 1156-1175-Despagnet, Nos. 566-577-PradierFodéré, VII. Nos. 2939-2988, 3019-3028-Rivier, II. pp. 299-306 -Calvo, IV. §§ 2166-2198-Fiore, III. Nos. 1454-1481-Martens, II. §§ 117-119-Longuet, §§ 115-133-Mérignhac, pp. 241-262— Pillet, pp. 237-259-Kriegsgebrauch, pp. 45-50-Holland, War, Nos. 68-74, 79-81-Waxel, "L'armée d'invasion et la population" (1874)-Litta, "L'occupazione militare" (1874)-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, &c." (1891)—Magoon, "Law of Civil Government under Military Occupation" (2nd edit. 1900)-Lorriot, "De la nature de l'occupation de guerre" (1903)-Rolin-Jaequemyns in R.I., II. (1870), p. 666, and III. 1871) p. 311-Löning in R.I., IV. (1872), p. 622, and V. (1873), p. 69.

Aim of

$166. If a belligerent succeeds in occupying a Occupapart or even the whole of the enemy territory, he tion as an has realised a very important aim of warfare. He Warfare 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, as, for instance, 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. 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, since Vattel (III. § 197) had drawn 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. The first to do this was Heffter (§ 131), whose treatise 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.

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. 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 prevents thereby the legitimate Sovereign from exercising his authority and claims obedience for himself from the inhabitants, he has to administrate the country not only in the interest of his own military advantage, but also, as far as possible at least, 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.

§ 167. Since an occupant, although his power is Occupa merely military, has certain rights and duties, the

1 Most treatises, especially all the French, 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, re

quisitions and contributions, de-
struction of public and private
property, violence against private
enemy subjects and enemy offi-
cials. These matters have, how-
ever, nothing to do with occupa-
tion, but are better discussed in
connexion with the means of land
warfare; see above, §§ 107-154.

tion when effected.

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