§ 169. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the 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 all circumstances and conditions. But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is not the Sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily necessitated by his interest in the maintenance and safety of his army and 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 which is 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."
Rights of the Occupant regarding the Inhabitants.
§ 170. An occupant having authority over the territory, the inhabitants are under his sway and have to render obedience to his commands. However, the power of the occupant over the inhabitants is not unrestricted, for articles 23, 44, and 45 of the Hague Regulations expressly enact, that he is prohibited from compelling the inhabitants to take part in military operations against the legitimate Government, to give information concerning the army of the other belligerent or concerning the latter's means of defence, or to take an oath of allegiance. 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 the occupant 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[332] from them, may compel them to render services as drivers, farriers, and the like.[333] He may compel them to render services for the repair or the erection of such roads, buildings, or other works as are necessary for military operations.[334] He may 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.
[332] See above, §§ [147] and [148].
[333] Formerly he could likewise compel them to render services as guides, but this is now prohibited by the wording which article 44 received from the Second Peace Conference. It should, however, be mentioned that Germany, Austria-Hungary, Japan, Montenegro, and Russia have signed Convention IV. with a reservation against article 44, and that in a war with these Powers the old rule is valid that inhabitants may be compelled to serve as guides.
[334] See article 52 of the Hague regulations, and Land Warfare, §§ 388-392.
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. It must, however, be specially observed that this rule does not at all prevent[335] 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 reprisal for a treacherous attack committed there on enemy soldiers by some unknown individuals.[336] Nor does this new rule prevent an occupant from taking hostages[337] in the interest of the safety of the line of communication threatened by guerillas not belonging to the armed forces, or for other purposes,[338] although the hostage must suffer for acts or omissions of others for which he is neither legally nor morally responsible.
[335] 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.