War crimes.

in accordance with the universally recognised fundamental principles of humanity and honour, fairness and justice (0).

Infringements of this martial law are regarded as 'war crimes.' As a rule no penalty should be inflicted on offenders without previous inquiry and condemnation by a court-martial consisting of a number of officers convened for the purpose. German authorities speak also of a special kind of war crime, which they call 'war treason (Kriegsverrath'). The German Manual defines it as the act of injuring or endangering the belligerent's interests by deceit, or by sending messages to the opposing army with regard to the position, movements, plans, &c. of the belligerent, whether in the field or in occupation (p). The use of the expression 'war treason' as applied to the nationals of the enemy is, in certain respects, unjustifiable; but whatever terminology be adopted, the consequences of the offence are the same. Thus certain acts committed openly by members of the enemy's armed forces are legitimate, but are regarded as acts of war treason' if attempted or done in occupied territory or within the belligerent's lines, either by enemy civilians or by enemy soldiers in disguise. Examples of such acts are the destruction of bridges, lines of communication, telegraphs, or telephones, wrecking military trains, cutting off water supply, setting free captured colleagues, bribing the belligerent's forces to surrender or desert, circulating proclamations or making promises calculated to imperil or damage the belligerent, &c. An instance may be referred to that occurred in the Russo-Japanese war, 1904. Two Japanese officers, having disguised themselves as Chinamen, attempted to blow up a railway bridge in Manchuria, in the rear of the Russian forces. They were captured in the attempt, and their identity was discovered. Accordingly, a Russian court-martial condemned them to death, and they were shot. Had they, undisguised, made the same attempt, they would have been treated, if captured, as prisoners of war.

As to 'war crimes (apart from 'war treason') their number is naturally indefinite, depending as they do on the number of acts ordered to be done or forbidden to be done in the martial law proclamation or regulations of the invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities proclaimed the following to be offences against their martial law:-Being in possession of arms, ammunition, &c.,

(0) Cf. Bluntschli, Völkerrecht, (P) Kriegsbrauch im Landkriege, §§ 542, 543, 546, 548.

p. 50.

travelling without a permit, sending prohibited goods, holding meetings other than those allowed, using seditious language, spreading alarmist reports, overcharging for goods, wearing uniforms without due authority, going out-of-doors between certain hours, injuring military animals or stores, being in possession, without a permit, of horses, vehicles, cycles, &c., hindering those in execution of military orders, trespassing on defence works (q). Such offences, together with several others, were specified in the Japanese regulations made in the Russo-Japanese war (r). Similarly, lists of offences were drawn up by German commanders occupying French and Belgian territory during the Great War, 1914. Not only were delinquencies like the above punished with very severe penalties (usually death), but certain injunctions were also laid down which exceeded in their rigour and extravagance the martial law regulations of previous belligerents, and were incompatible with the provisions and the spirit of the Hague Code. An order, for example, compelling inhabitants to keep their houses open all night was dreadfully abused by the occupying forces; an order compelling inhabitants to salute German soldiers, and permitting the latter, in case of default, to exact respect by any method, is outrageously arbitrary and arrogant, for it cannot be justified by any considerations of military necessity (s).

and the

In recent wars the occupying commander has usually retained Occupation the services of the local judges and functionaries (other than local law. political officials) for the general judicial and administrative work of the locality. But he is not obliged to do so. The practice facilitates the maintenance of the laws prevailing there, especially the civil and criminal jurisprudence. These laws ought not to be interfered with, unless they are contrary to the martial law enforced, which, of course, will be considered by the occupant to be predominant. In the Franco-German war, 1870-1871, the French municipal officials were retained, but the Government officials refused to remain in office under the invaders. Similarly the Germans retained to some extent the local authorities in Belgium, 1914-1915, but recalcitrant officials and those complaining of highhanded conduct were treated with the utmost severity, and in some cases were carried off, and incarcerated in German fortresses.

In general, the acts of the occupant possess legal validity, and cannot be abrogated by the subsequent Government. But this rule does not necessarily apply to acts that exceed the occupant's

(q) Cf. Papers relative to Martial Law in South Africa (Cd. 981).

r) See Ariga, op. cit. pp. 379 seq; See Phillipson, Int. Law and the Great War, pp. 225 seq.

Unlawful information.

Oath of allegiance.

powers (e.g., alienation of the domains of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those that operate beyond the period of occupation. When occupation ceases, no reparation is legally due for what has already been carried out. Thus, on the conclusion of the Franco-German war, certain persons claimed that they ought to be permitted to complete contracts (for felling timber in the State forests) made with the German authorities then in occupation of the localities concerned; but the restored French Government rejected the claim on the ground that the termination of the occupation annulled the continuing rights derived from or through the occupant (†).

"A belligerent is forbidden to compel the population of occupied territory to give information about the army of the other belligerent or about his means of defence" (u).

We have already seen that Article 23h prohibited the compulsion of enemy subjects to take part in the 'operations of war' against their own country; and we have pointed out that the expression operations of war' has a wider significance than such an expression as 'military operations.' Article 44, then, constitutes an extension, or rather a particular application of Article 23h. Whether these two Articles taken together exclude the employment of forced guides' has been doubted in some quarters (x). But there can be no rational ground for doubt when we consider the purport of the Articles, which forbid the forced employment of enemy nationals not only as combatants, but also as co-operators in any proceedings which are intended to contribute to the defeat of their own country. To this end the accurate information of a guide may be quite as important as the accurate firing of a battery. However, should the services of an enemy guide be obtained, whether voluntarily or under compulsion, he will be liable to the supreme penalty, in accordance with established custom, if he deliberately misleads the belligerent's forces.

It may be mentioned that reservations against Article 44 were made by several leading Powers, viz., Germany, Russia, AustriaHungary, and Japan. But Article 23h is binding on them; and its terms are sufficiently wide to cover the case of compelled guides.

"It is forbidden to compel the inhabitants of occupied territory to take an oath of allegiance to the hostile Power" (y).

(t) Cf. Hall, Int. Law (1909), PP. 483, 484.

(u) H. R. (1907), Art. 44.

(x) Cf. Holland, Laws of War on Land (1908), p. 53.

(y) H. R. (1907), Art. 45.

Some writers hold that officials who are retained in their offices by the occupying commander may be required to take an oath of fidelity. There is, perhaps, nothing illegitimate in this requirement, provided the operation of the oath is confined strictly to the period of lawful occupation and to such services as the officials may rightfully be called upon to render. The same considerations might conceivably apply to the inhabitants in general in the occupied territory, but there is a greater danger in their case that the two provisoes mentioned may not be fully complied with by the occupant. On the other hand, an oath of neutrality is not necessarily forbidden by this Article; to require it would not be to superimpose further obligations, for the inhabitants are bound, in any case, to observe the duties of neutrality. In the AngloBoer war such an oath was administered by both belligerents (z). Certain reasons, however, may also be urged against the administration of this oath, too; for the occupant may come to regard a system of imposing oaths on the inhabitants as tantamount to a system of effective occupation. If occupation ceases to be effective de facto, exacted oaths and promises cannot make good the deficiency.

honour.

"Family honour and rights, the lives of persons, and private Family property, as well as religious convictions and practice, must be respected.

Private property may not be confiscated" (a).

In earlier days it was a generally recognised rule that from the moment one State was at war with another it had a right to seize on all the enemy's property of whatever kind and wherever found and to appropriate it to its own use or to that of the captors. By the ancient law of nations, even things that were classed as res sacrae were not exempt from capture and confiscation; thus Cicero, in his fourth oration against Verres, says that victory made all the sacred things of the Syracusans profane, and so subject to appropriation or destruction, as the case may be. But in modern times, as has already been pointed out, the principle grew up that no use of force against an enemy is legitimate unless it is absolutely necessary to accomplish the purposes of war. Accordingly, by the modern usage of nations, which acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, repositories of science, and similar institutions

p.

(z) Cf. Proclamations of F. M. Lord op. cit., 372. Roberts (Cd. 426), p. 23; Spaight,

(a) H. R. (1907), Art. 46.

Private property.

were exempted from the general operations of war. Private property also came to be regarded as immune from confiscation, with the exception of such as might become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption was taken to extend even to the case of an absolute and unqualified conquest of the enemy's country. In ancient times, both the movable and the immovable property of the vanquished passed to the conqueror. Such was the Roman law of war, often asserted with unrelenting severity; and such was the fate of the Roman provinces subdued by the northern barbarians, on the decline and fall of the western empire. A large portion, from one-third to two-thirds, of the lands belonging to the vanquished provincials was confiscated and partitioned among their conquerors. The last example in Europe of such a conquest was that of England, by William of Normandy. Since that period, among the civilized nations of Christendom, conquest, even when confirmed by a treaty peace, has not been followed by a general or partial transmutation of landed property. The property belonging to the Government of the vanquished nation passes to the victorious State, which also takes the place of the former sovereign in regard to the eminent domain. In other respects, private rights were long considered to be unaffected by conquest (b).

Article 46 of the Hague Regulations demands respect on the part of a belligerent for the personal and proprietary rights of the inhabitants of occupied territory. But this general provision is subject to various exceptions; for "by the prohibition of confiscation it is only meant that private property cannot by any regulation of the invader be taken from its owner for no other reason than that he is an enemy" (c). These exceptions are due to considerations of 'military necessity,' and the chief are:--Requisitions and contributions for the support of the invading armies or as an indemnity for the expenses of maintaining order in, and continuing the administration of, the occupied territory; destruction of property demanded imperatively by the exigencies of offence or defence; private property consisting of war material and means of transport; use and adaptation of property for the army's needs which cannot otherwise be satisfied; reprisals; confiscations.

(b) Vattel, Droit des Gens, liv. iii. ch. 9, § 13. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, sect. 2, ch. 1, §§ 250-253. Martens,

Précis, liv. viii. ch. iv. §§ 279-282. (c) Westlake, Int. Law, vol. ii. (1913), p. 103.