Article 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 yet occupation. A small belligerent force may raid an 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. Although it may correctly be asserted that, as 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 leaves it behind. 42 of the Hague Regulations enacts now 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 such 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 1 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 simply 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 1 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. soldiers would be necessary. Reasonably no other conditions ought to be laid down as regards 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 single case. If, when the legitimate Sovereign is prevented from exercising his powers, the occupant is in the position to assert his authority and 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 larger force is established from which constantly flying columns are 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.1 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 a besieging force, 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. 1 This is not identical with socalled 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 in stance, when he actually occupies only the capital of a large province, and proclaims to have thereby occupied the whole of the province, although he does not take any steps to exercise control over it. 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 routed 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 over that vast territory, although it took more than a year before peace was finally established. It must be emphasised that the rules regarding effective occupation must be formulated from the basis of actual practice quite as much as rules regarding other matters of International Law. Those rules are not authoritative which theorists lay down, 1 The annexation of the Orange Free State dates from May 24, 1900, and that of the South African Republic from September I, 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; and the British Government ought not 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, p. 278, note 3, and p. 279, note I. but those which are abstracted from actual practice of warfare unopposed by the Powers.1 ended. § 168. Occupation comes to an end when an Occupa occupant withdraws from a territory or is driven tion when out of it. Thus, occupation of a territory ceases and remains only over a limited area if the forces occupying a territory are drawn into a fortress on that territory and are there besieged by the readvancing enemy, or if the occupant concentrates his forces in a certain place of the territory, withdrawing before the re-advancing enemy. But оссираtion 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 meet the retreating enemy, leaving only comparatively few soldiers behind. and Duties of the § 169. As the occupant actually exercises Rights authority, and as the legitimate Government is pre- in General vented from exercising its authority, the occupant 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 1 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 Rights of the regarding the In all circumstances and conditions. But, although regarding the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is, on the other hand, not the Sovereign of the territory, and he, therefore, has no right to make such changes of the laws and of the administration as are not temporarily necessitated by his interest in the maintenance and safety of his army and in 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 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.” § 170. An occupant having authority over the Occupant territory, the inhabitants, whether subjects of the enemy or of neutral States, are under his sway and habitants. have to render obedience to his commands. However, the power of the occupant over the inhabitants is not unrestricted, since he is, according to articles 44 and 45 of the Hague Regulations, prohibited from compelling them to take the oath of allegiance and to take part in military operations against their legitimate Government. On the other hand, he can compel them to take an oath of neutrality,' and can This means, of course, nothing else than an oath to abstain from hostilities during the time of the occupation. |