第46章 MENTIONS OF BELLIGERENTS ON LAND.(1)

The Brussels Conference failed to solve a number of questions of modernorigin which have arisen as to the status of the civil population of a countrywhenby rising en massethey take upon themselves military duty in resistanceto an invaderThe trenchant German schemewhich was submitted to the Conference,failed to command supportand a number of ruleswhich were not open tothe same objections as those which the German delegate proposedwere notuniversally acceptableButas in the case of many other recommendationsemanating from the Conferencea large number of their proposals are foundin the Manuals of warfare which so many civilised Governments have now placedin the hands of their officersAs regards the most important point whichhad to be settledthere is a general tendency to advise that a uniform ofsome kind shall be adopted by the non-military populationand that the corpswhich they form shall be treated with humanityand not shot or hanged asmere marauders.

These questions do not become of much practical importance till a largepart of the invaded country has been occupied by the forces of the invader.

In the former lecture I took the investment of Paris by the German troopsas exemplifying the point of a war at which this branch of law assumes anew importanceWe have now to consider the legal position of that part ofthe invaded country which is under military occupation by the enemyTheview of a country in such a position has much changed in modern tingesOfold the theory of the position of an invaded country was much affected bythe Roman LawLandlike everything elsemight be captured by occupancy(occupatiosubject to what the Romans called post-liminiuma legal rulewhich is generally described as embodying a legal fiction under which a citizenwho should after captivity return to his countryor property which aftercapture should fall again into the hands of the restored ownerreverts tohis or its antecedent positionThus territory militarily occupied was regardedas passing to the occupant subject to the ill-defined risks arising fromthe return of the former sovereignFrederick the Greatwhen he had invadeda countryusually compelled the population to supply him with recruits;and there is one instance in which the King of Denmark sold what were thentwo Swedish provinces -Bremen and Verden -to HanoverThe inconvenienceof this condition of the law was much felt after the close of the Seven Years' Warand the position of a country once invadedfrom which the enemy hasretiredwas always settled by particular treatyManifold as have been thevariations of boundary in Europethey are now always regulated by treatyat the end of a warand even in the East it is now not easy to find territoryheld by the rights arising from simple conquestThe only instance of a newprovince held on the mere title of conquestand incorporated with the otherterritories of the conquering countryis the Indian province long knownas Lower BurmahThe Kingwho still retained a part of his territories,which he reigned over at Mandalayrefusedeven though utterly defeated,to enter into any treaty of cessionand after the second war Lower Burmahwas treated as already part of the general Indian territory.

I have said that the most critical moment in great wars of invasion isthat at which a large part of the territory is militarily occupiedThereis very much on the subject in the modern Manuals of warThe following isa summary of the law.

An invader is said to be in military occupation of so much of a countryas is wholly abandoned by the forces of the enemyThe occupation must bereal and not nominaland it is laid down that a 'paperoccupation is evenmore objectionable in its character and effects than a 'paperblockade Onthe other handthe occupation of part of a district from the whole of whichthe enemy has retiredis necessarily an occupation of that districtasit is impossible in any other way to occupy any considerable extent of territory.

The true test of military occupation is exclusive possessionFor example,the reduction of a fortress which dominates the surrounding country givesmilitary possession of the country dominatedbut not of any other fortresswhich does not submit to the invaderMilitary occupation ceases as soonas the forces of the invader retreat or advance in such a manner as to quittheir hold on the occupied territoryIn the event of a military occupationthe authority of the regular Government is supplanted by that of the invadingarmyThe rule imposed by the invader is the law of warIt is not the lawof the invading state nor the law of the invaded territoryIt may in itscharacter be either civil or militaryor partly one and partly the other.

In every case the source from which it derives its authority is the same,namely the customs of warand not any municipal lawand the General enforcingthe rule is responsible only to his own Government and not to the invadedpeopleThe rule of military occupation has relation only to the inhabitantsof the invaded countryThe troops and camp followers in a foreign countrywhich has been occupied let us say by the English army remain under Englishmilitary lawand are in no respects amenable to the rule of military occupation.

As a general rulemilitary occupation extends only to such matters as concernthe safety of the armythe invader usually permitting the ordinary civiltribunals of the country to deal with ordinary crimes committed by the inhabitants.