CHAPTER XX1

CONDUCT OF HOSTILITIES

110. Belligerent Occupation

This was defined by the Institute of International Law, at Oxford in 1880, as follows:

"A territory is considered to be occupied, when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists."

In the Hague Convention of 1907 it is stated that:

"ART. XLII. Territory is considered occupied when it is actually placed under the authority of the hostile army.

"The occupation applies only to the territory where such authority is established, and in a position to assert itself.

"ART. XLIII. 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 reëstablish, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." 2

(a) The sovereignty of the occupied territory does not pass to the occupying state, but only the right to exercise

For the discussion of the laws and customs of war, at the Hague Peace Conference, see Holls, 134 et seq., and Higgins, p. 256 et seq. 2 See Appendix, pp. 417-418.

The sovereign

the authority necessary for safety and operations of war. Belligerent occupation was formerly held to carry with it the right to full disposition of whatever apty of occupied pertained to the territory. During the nineterritory. teenth century it was given a clearer definition. Belligerent occupation is a fact impairing the usual jurisdiction, but it does not transfer sovereignty.

Local laws of invaded state.

(b) In general the civil laws of the invaded state continue in force in so far as they do not affect the hostile occupant unfavorably. The regular judicial tribunals continue to act in cases not affecting the military occupation. Administrative officers continue to perform their functions in absence of orders to the contrary, though of course purely political officers would be limited in the exercise of their functions; e.g. registrars of marriages, births, and deaths might act as usual, while the authority of a governor might be suspended. There is no doubt that the freedom of the press cannot be claimed, as this might bring grave consequences upon the occupying force. (c) The belligerent occupant may destroy or appropriate public property which may have a hostile purpose, as forts, arms, armories, etc. The occupying force may enjoy the income from the public sources. Strictly private property should be inviolable, except so far as the necessity of war requires contrary action.

Public and private property.

"ART. LIII. An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.

"All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depôts of arms, and, generally, all kinds of ammunition of war, may be

seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made." 1

The invader is bound to give such measure of protection. to the inhabitants of the occupied territory as he is able.2 Belligerent occupation begins when an invaded territory is effectively held by a military force.

111. Forbidden Methods

In the conduct of hostilities certain methods of action and certain instruments are generally forbidden.

Deceit involving perfidy is forbidden.3 As there are certain conventional agreements held to exist even between enemies, violations of these agreements remove from the violator the protection of the laws of war.

On land it is not permitted

"(a) To employ poison or poisoned weapons;

'(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

"(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion;

"(d) To declare that no quarter will be given;

"(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;

"(f) To make improper use of a flag of truce, of the national flag, or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

'(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;

"(h) To declare abolished, suspended, or inadmissible in a Court of law the rights and actions of the nationals of the hostile party.

1 Appendix, p. 419.

'Appendix, pp. 357, 418.

3 Appendix, p. 353.

"A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of war." 1

"The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.

"A place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour.” 2

Undefended towns may be bombarded if they refuse reasonable requisitions for supplies necessary for the immediate use of the naval force but not for failure to make money contributions.3 Provisions for protection of non-military buildings, monuments, etc., have been made.4

While the use of false colors in naval war is not yet forbidden, when summoning a vessel to lie to, or before firing a gun in action, the national colors must be displayed. The use of the conventional flag of truce, a white flag, or of the hospital flag, red cross on white ground, to cover military operations or supplies is forbidden.5 Stratagems, such as feigned attacks, ambush, and deceit not involving perfidy are allowed.6

By the declaration of the Hague Conference of 1899, "the contracting parties agree to prohibit, for

Declarations of the Hague Conferences.

a term of five years, the launching of projectiles and explosives from balloons or by other

new methods of a similar nature." 7

The declaration was renewed at the Hague Conference of 1907 to extend to the close of the Third Conference.

There was also an agreement in 1899 "to abstain from the use of bullets which expand or flatten easily in the human body."

1 Appendix, p. 415.

3 Ibid., p. 261.

Appendix, pp. 415, 430.

2 Scott, "Conferences," p. 260. Appendix, pp. 415-416. Appendix, p. 415.

'Holls, "Hague Peace Conference," 93 et seq., 455.

The Hague Conference of 1899 also declared against the 'use of projectiles, the object of which is the diffusion of asphyxiating or deleterious gases." 1

The Hague Convention of 1907 provided:

"ART. I. It is forbidden:

"1. To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them;

"2. To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings;

"3. To use torpedoes which do not become harmless when they have missed their mark.

"ART. II. It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial shipping." 2

Retaliation, devastation, refusal of quarter, and other severe methods once resorted to are now generally forbidden, except as punishment for violation of the laws of war.

112. Privateers

A private armed vessel owned and manned by private persons and under a state commission called a "letter of marque," 3 is a privateer.

"3

This method of carrying on hostilities has gradually met with less and less favor.4 From the early days of the fifteenth century neutrals were given commissions. Toward the end of the eighteenth century treaties and domestic laws gradually provided against this practice, though letters of marque were offered to foreigners by Mexico in 1845, and by the Confederate States in 1861-1865. These were not accepted, how1 See Holls, "Hague Peace Conference," 93 et seq., 461. The United States did not sign this declaration. 2Scott, "Conferences," p. 259. For form, see United States v. Baker, 5 Blatchford, 6; 2 Halleck, 116. See article of Dr. Stark on "Privateering," in Columbia University Publications (1897), Vol. VIII, No. 3.