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.
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.
[324] See Martens, N.R. I. p. 9.
[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.
[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.
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.