The conqueror can, as administrator of the country and its Government, depose or appoint officials. He can put on their oath the civil servants, who continue to act, as regards the scrupulous discharge of their duties. But to compel officials to continue in office against their will does not appear to be in the interest of the army of occupation. Transgressions by officials are punished by the laws of their country, but an abuse of their position to the prejudice of the army of occupation will be punished by martial law.
Also judicial officers can be deposed if they permit themselves to oppose publicly the instructions of the provisional Government. Thus it would not have been possible, if the occupation of Lorraine in the year 1870–71 had been protracted, to avoid deposing the whole bench of Judges at Nancy and substituting German Judges, since they could not agree with the German demands in regard to the promulgation of sentence.[105]
Fiscal Policy.
The financial administration of the occupied territory passes into the hands of the conqueror. The taxes are raised in the preexisting fashion. Any increase in them due to the war is enforced in the form of “War levies.” Out of the revenue of the taxes the costs of the administration are to be defrayed, as, generally speaking, the foundations of the State property are to be kept undisturbed. Thus the domains, forests, woodlands, public buildings and the like, although utilized, leased, or let out, are not to be sold or rendered valueless by predatory management. On the other hand it is permitted to apply all surplus from the revenues of administration to the use of the conqueror.
The same thing holds good of railways, telegraphs, telephones, canals, steamships, submarine cables and similar things; the conqueror has the right of sequestration, of use and of appropriation of any receipts, as against which it is incumbent upon him to keep them in good repair.
If these establishments belong to private persons, then he has indeed the right to use them to the fullest extent; on the other hand he has not the right to sequestrate the receipts. As regards the right of annexing the rolling-stock of the railways, the opinions of authoritative teachers of the law of nations differ from one another. Whilst one section regard all rolling-stock as one of the most important war resources of the enemy’s State, and in consequence claim for the conqueror the right of unlimited sequestration, even if the railways belonged to private persons or private companies,[106] on the other hand the other section incline to a milder interpretation of the question, in that they start from the view that the rolling-stock forms, along with the immovable material of the railways, an inseparable whole, and that one without the other is worthless and is therefore subject to the same laws as to appropriation.[107] The latter view in the year 1871 found practical recognition in so far as the rolling-stock captured in large quantities by the Germans on the French railways was restored at the end of the war; a corresponding regulation was also adopted by the Hague Conference in 1899.
Occupation must be real not fictitious.
These are the chief principles for the administration of an occupied country or any portion of it. From them emerges quite clearly on the one hand the duties of the population, but also on the other the limits of the power of the conqueror. But the enforcement of all these laws presupposes the actual occupation of the enemy’s territory and the possibility of really carrying them out.[108] So-called “fictitious occupation,” such as frequently occurred in the eighteenth century and only existed in a declaration of the claimant, without the country concerned being actually occupied, are no longer recognized by influential authorities on the law of nations as valid. If the conqueror is compelled by the vicissitudes of war to quit an occupied territory, or if it is voluntarily given up by him, then his military sovereignty immediately ceases and the old State authority of itself again steps into its rights and duties.