than a foraging party engaged in taking grain and stock from a country village; and, moreover, the presence of women and children in the one case and their absence in the other, suggest considerations which certainly do not favor the claim of superior humanity made on behalf of land warfare. § 201. Since the rights of an invader towards the country overrun by him are so large and important, it is necessary first to define the circumstances under which he obtains The essentials of pation. them, and then to discuss their exact nature and belligerent occulimits. Originally no distinction was drawn in these respects between the conqueror of a territory and its temporary holder. Military possession was regarded as a sort of conquest, giving proprietary rights to the invader as long as he could maintain his possession. The practical result of this view was to confer on him all the power of a sovereign without a sovereign's responsibility. The theory seems to have been acted upon down to the middle of the eighteenth century. In 1712 the King of Denmark, being at war with Sweden and in belligerent occupation of the Swedish possessions of Bremen and Verden, sold them before the war was over to the Elector of Hanover,1 thus assuming to himself when a mere occupant such a right of dominion as, according to modern usage, could spring from nothing but cession or completed conquest. Later still, during the occupation of Saxony by Frederick the Great in 1756, recruits were taken for the Prussian army from the population of the occupied kingdom.2 This was by no means the only instance of the treatment of the inhabitants of invaded districts as if they were subjects of the invading state. The history of the time contains several others, and though few, if any, are found much later than the period we are considering, the theory on which they were based retained enough vitality 1 Hall, International Law, § 154. 2 Ibid. to cause the Brussels Conference of 1874 to embody in its Code the statement that the population of an occupied territory cannot be compelled either to take part in military operations against their own country, or to swear allegiance to the enemy's power. Vattel, writing in 1758, was the first jurist to scout the theory that a military possessor might perform acts of sovereignty, and to maintain instead that the rights of the original sovereign must first be ousted by a completed conquest or resigned by a definite treaty.2 His views gradually influenced practice. Old customs that were inconsistent with them died out, and new doctrines were founded on improved usage. A sharp distinction is now drawn between completed conquest and belligerent occupation. The former we have already considered,3 and with the rights conferred by it the Laws of War have no concern. It implies the cessation of the struggle and the establishment of a new political order. The chief questions of International Law connected with it were referred to when we dealt with the problems of state existence.1 But the rights of occupancy concern us very nearly. They are incidents of hostilities, and amount to a temporary supercession of the authority of an invaded state, to an extent rendered necessary in order to reconcile the exigencies of the invaders with the safety and good order of the inhabitants of the occupied districts.5 As consequences of such vast importance flow from occupation, we must endeavor to obtain a clear understanding of its nature. It is necessary therefore to ask, What is an occupied district? Under what circumstances does an enemy possess the powers of an occupying belligerent? These are most important questions. Upon the answers to them depends the right of an invader to levy contributions and requisitions, to press the inhabitants into his service for 1 British State Papers, Miscellaneous, No. 1 (1875), Arts. 36 and 37, 2 Droit des Gens, III., § 198. p. 323. 8 See § 98. 4 See § 45. Acollas, Droit de la Guerre, pp. 61, 62 certain purposes, and to subject them to military execution for aiding their own side. It is obviously the interest of the great military powers to acquire these rights upon the most easy terms, and to stretch them as far as possible when acquired; and it is equally clear that the smaller states. must adopt the opposite policy, since they cannot keep up vast standing armies, but are compelled to rely upon the patriotism and spontaneous activity of their inhabitants for adequate resistance to invasion. This conflict of views showed itself very clearly at the Brussels Conference of 1874. All the delegates agreed that territory through which an invading army has marched and over which it maintains its lines of communication is occupied by it. But differences of opinion arose as to territory in advance of the main army and on its flanks, and also as to territory won back temporarily by local resistance to the invader. In the war of 1870 between Germany and France, the German military authorities had adopted the view which Napoleon acted upon at the beginning of the century. They held that a district was occupied if flying columns, advanced parties, and even scouts and patrols, marched through it either without resistance or after having overcome the resistance of the regularly organized national troops. It was also part of their theory that, apart from voluntary evacuation, occupation came to an end only when the invaders were expelled by the regular army of their enemy. The German delegates at the Conference endeavored to enforce these views, but they were strenuously resisted by the delegates of the smaller states of Europe;1 and in the end it was agreed that the first Article of the proposed Code should run as follows: "A territory is considered as occupied when it is actually placed under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised."2 These words might perhaps be more explicit, 1 British State Papers, Miscellaneous, No. 1 (1875), pp. 235–239. but they certainly exclude what may be called constructive occupation, and confine the rights of the invader to the districts dominated by his military force. The phraseology of the Manual adopted by the Institute of International Law in 1880 is clearer. In Article 41 it declares that a territory is occupied when "the state from which it has been taken has ceased in part to exercise there its regular authority, and the invading state alone finds itself able to maintain order therein." In fact occupation in land warfare is strictly analogous to blockade in sea warfare; and as blockades are not recognized unless they are effective, so occupation should be made to rest upon effective control. Its rights are founded on mere force, and therefore they cannot extend beyond the area of available force. But the force need not be actually on the spot. The country embraced within the invader's lines may be very extensive, and the bulk of his troops will, of course, be found on its outer edge opposing the armies of the invaded state. Any territory covered by the front of the invaders should be held to be occupied, but not territory far in advance of their main bodies. The fact that it is penetrated here and there by scouts and advance guards does not bring it under firm control, and therefore cannot support a claim to have deprived the invaded state of all authority therein. But the rights of occupancy, once acquired, remain until the occupier is completely dispossessed. The temporary success of a raid or a popular rising will not destroy them; but if an insurrection wins back the disputed territory, it is absurd to hold that they still exist because the occupying forces have not been driven away by regular troops. Rights founded on force expire when that force is overcome, no matter what the agency employed in overcoming it. It is impossible to travel with safety far beyond the statement that belligerent occupation implies, first firm possession, so that the occupying power has the country under its control and can exercise its will therein, 1 Tableau Général de L'Institut de Droit International, p. 181. and secondly a continuance of the status of belligerency, so that the invader has neither evacuated the territory he held nor become its sovereign. § 202. We will now proceed to discuss the rights of an invader over property found in the districts occupied Rights over state by occupation. by him. It will be convenient to distinguish property gained between state property and private property, taking first in each case the rules which relate to immovables, and secondly those which relate to movables. war. With regard to immovables belonging to the invaded state, it is now settled law that the occupying belligerent shall “consider itself in the light of an administrator and usufructuary" only. It may use the public lands, buildings, forests, and other real estate, and may take all the rents and profits arising from them. The troops of the invader may be quartered in public buildings, his administrative services may utilize them for offices, they may be turned into hospitals for his wounded, and even the churches may be taken possession of for purposes connected with the But wanton destruction is now regarded as an act of barbarity forbidden by the rules of civilized warfare. When, in 1814, the British burned the Capitol and the White House at Washington on the occasion of their temporary military occupation of the city, they brought upon themselves the reprobation not only of American statesmen and writers, but also of the publicists of the civilized world. The act was condemned next year by Sir James Mackintosh in the House of Commons. The only serious argument in its defence urges that it was done in retaliation for the burning of Canadian villages by the American forces in 1813.2 Undoubtedly 1 Brussels Code, Art. 7, see British State Papers, Miscellaneous, No. 1 (1875), p. 320. 2 Maine, International Law, 198-199. |