punish them severely for breaking it. He can impose requisitions and contributions 1 upon them, can compel them to render services as guides,2 drivers, farriers, and the like. He can compel them to render services for the repair or the erection of such roads, buildings, or other works as are necessary for military operations.3 He can 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.

Whoever does not comply with his commands, or commits a prohibited act, can be punished by him; but article 50 of the Hague Regulations expressly enacts the rule that no general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible. It must, however, in face of this rule, be specially observed that it does not at all prevent 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 reprisals

See above, §§ 147 and 148. 2 This is generally recognised by theory and practice; Holland, War, No. 70.

see

3 See article 52 of the Hague Regulations.

See Holland, War, No. 75 bis.

Position

of Govern

and

Function

aries

during Oc

cupation.

for a treacherous attack on enemy soldiers committed there by some unknown individuals. Nor does this new rule prevent an occupant from taking hostages 2 in the interest of the safety of the line of communication threatened by guerillas not belonging to the armed forces, or for other purposes, although the hostage must suffer for acts or omissions of others for which he is neither legally nor morally responsible.

§ 171. Since through occupation the authority ment over the territory actually passes into the hands of Officials the occupant, he can for the time of his occupation Municipal depose all Government officials and municipal functionaries that have not withdrawn together with the retreating enemy. On the other hand, he cannot oblige them by force to administer their functions during occupation, if they refuse to do so, except where a military necessity for the administration of a certain function arises. If they are willing to serve under him, he can make them take an oath of obedience, but not of allegiance, and he cannot oblige them to administer their functions in his name, but he can prevent them from doing so in the name of the legitimate Government. Since, according to article 43 of the Hague Regulations

1 See below, § 248.

2 But this is a moot point; see below, § 259.

3 Belligerents sometimes take hostages for the purpose of securing compliance with contributions, requisitions, and the like. As long as such hostages obtain the same treatment as prisoners of war, the practice seems not to be illegal, although the Hague Regulations do not mention and many publicists condemn it; see above, p. 122, note 1, and below, p. 273, note 2.

4 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 obliged to do it.

he has to secure public order and safety, he must appoint temporarily 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.

Courts of

during Oc

cupation.

§ 172. The particular position Courts of Justice Position of have nowadays in civilised countries makes it neces- Justice sary to discuss their position during occupation.1 There is no doubt that an occupant can suspend the judges as well as other officials. However, if he does suspend them, he must appoint temporarily 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 can 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 can nevertheless, as 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. As an illustration of this may serve a case that happened during the Franco-German War in September 1870 after the fall of the Emperor Napoleon and the proclamation of the French Republic, when the Court of Appeal at Nancy pronounced its verdicts under the formula "In the name of the French People and Government." Since Germany had not yet recognised the French Republic, the Germans ordered the Court

1 See Petit, L'Administration de la justice en territoire occupé (1900).

VOL. II.

N

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 to be used, "In the name of the High German Powers &c.," 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."

CHAPTER IV

WARFARE ON SEA

I

ON SEA WARFARE IN GENERAL

Hall, § 147-Lawrence, §§ 216-217-Maine, pp. 117-122-Manning, pp. 183-184-Phillimore, III. § 347-Twiss, II. § 73-Halleck, II. pp. 80-82-Taylor, § 547-Wharton, III. §§ 342-345-Wheaton, $ 355-Bluntschli, §§ 665-667-Heffter, § 139-Geffcken in Holtzendorff, IV. pp. 547-548, 571-581-Ullmann, §§ 159-160-Bonfils, Nos. 1268, 1294-1338-Despagnet, Nos. 638-645-Rivier, II. pp. 329-335--Calvo, IV. §§ 2123, 2379-2410-Fiore, III. Nos. 1399– 1413-Pillet, pp. 118-120-Perels, § 36-Testa, pp. 147-157-Boeck, Nos. 3-153-Lawrence, Essays, pp. 278-306-Westlake, Chapters, pp. 245-253-Ortolan, I. pp. 35-50-Hautefeuille, I. pp. 161-167— Gessner, Westlake, Lorimer, Rolin-Jaequemyns, Laveleye, Albéric Rolin, and Pierantoni in R.I., VII. (1875), pp. 256-272 and 558-656 -Twiss, in R.I., XVI. (1884), pp. 113-137.-See also the authors quoted below, p. 186, note 2.

Means of

Warfare

§ 173. The purpose of war is the same in warfare Aims and both on land and on sea-namely, the overpowering Sea of the enemy. But sea warfare serves this purpose by attempting the accomplishment of aims which are different from those of land warfare. Whereas the aims of land warfare are defeat of the enemy army and occupation of the enemy territory, the aims 1 of sea warfare are: defeat of the enemy navy; annihilation of the enemy merchant fleet; destruction of enemy coast fortifications, and of maritime as well as

1 Aims of sea warfare must not be confounded with ends of war; see above, § 66.