According to earlier views right up to the last century, a Government whose army had victoriously forced itself into the territory of a foreign State could do exactly as it pleased in the part occupied. No regard was to be paid to the constitution, laws, and rights of the inhabitants. Modern times have now introduced, in this respect, a change in the dominant conceptions, and have established a certain legal relationship between the inhabitants and the army of occupation. If, in the following pages, we develop briefly the principles which are applied to the government of territory in occupation, it must none the less be clearly emphasized that the necessities of war not only allow a deviation from these principles in many cases but in some circumstances make it a positive duty of the Commander.
The occupation of a portion of the enemy’s territory does not amount to an annexation of it. The right of the original State authority consequently remains in existence; it is only suspended when it comes into collision with the stronger power of the conqueror during the term of the occupation, i.e., only for the time being.[104]
But the administration of a country itself cannot be interrupted by war; it is therefore in the interest of the country and its inhabitants themselves, if the conqueror takes it in hand, to let it be carried on either with the help of the old, or, if this is not feasible, through the substitution of the new, authorities.
From this fundamental conception now arises a series of rights and duties of the conqueror on the one side and of the inhabitants on the other.
The Laws remain—with qualification.
Since the conqueror is only the substitute for the real Government, he will have to establish the continuation of the administration of the country with the help of the existing laws and regulations. The issue of new laws, the abolition or alteration of old ones, and the like, are to be avoided if they are not excused by imperative requirements of war; only the latter permit legislation which exceeds the need of a provisional administration. The French Republic, at the end of the eighteenth century, frequently abolished the preexisting constitution in the States conquered by it, and substituted a Republican one, but this is none the less contrary to the law of nations to-day. On the other hand, a restriction of the freedom of the Press, of the right of association, and of public meeting, the suspension of the right of election to the Parliament and the like, are in some circumstances a natural and unavoidable consequence of the state of war.
The Inhabitants must obey.
The inhabitants of the occupied territory owe the same obedience to the organs of Government and administration of the conqueror as they owed before the occupation to their own. An act of disobedience cannot be excused by reference to the laws or commands of one’s own Government; even so an attempt to remain associated with the old Government or to act in agreement with it is punishable. On the other hand, the provisional Government can demand nothing which can be construed as an offense against one’s own Fatherland or as a direct or indirect participation in the war.
Martial Law.
The civil and criminal jurisdiction continues in force as before. The introduction of an extraordinary administration of justice—martial law and courts-martial—is therefore only to take place if the behavior of the inhabitants makes it necessary. The latter are, in this respect, to be cautioned, and any such introduction is to be made known by appropriate means. The courts-martial must base any sentence on the fundamental laws of justice, after they have first impartially examined, however summarily, the facts and have allowed the accused a free defense.