within its jurisdiction the unneutral use of wireless tele graph. "(c) Unneutral use of wireless telegraph on board a vessel makes the vessel liable to the penalty of capture by a belligerent or to confiscation or sequestration of the apparatus or of the vessel or of both by a neutral. "(d) A vessel intentionally aiding a belligerent by the use of wireless telegraph is liable to penalty until the end of the war."1 TOPICS AND REFERENCES 1. Aerial Warfare in General Hearn, "Airships in Peace and War," 2d ed., 1910. "International 2. The Sovereignty of the Air "Sovereignty of the Air," Blewett Lee, A. J. I. L., vol. VII, no. 3, 470, etc. "The Law of the Air Ship," Governor Simeon E. Baldwin, A. J. I. L., vol. IV, 95. “Annuaire de l'Institut de Droit International," 1906, 1911. 3. Aerial Warfare as Affected by the Laws of War Higgins, "Hague Peace Conference," 484-491, etc. Westlake, "International Law," 2d ed., vol. II, 76, 87, 90. Hershey's "Essentials of International Law," 484-451. 4. Wireless Tegraphy United States Naval War College, "International Law Situations," 1907, 138-176. Moore's "Digest of International Law," vol. VII, 941. Hershey's "Essentials of International Law," 449, 451. 1 "Int. Law Situations," Naval War College, 1907, pp. 175, 176. CHAPTER XXII MILITARY OCCUPATION. TERMINATION OF WAR. 167. The Meaning of Military Occupation. In the fourth convention of the second Hague conference, treating of the laws and customs of war on land, the definition of military occupation is given, which may be considered as representing what is sanctioned by international law and held as binding upon the powers which are signatory to this convention. It states that: "Territory is considered to be occupied when it is actually placed under the authority of the hostile army. "The occupation applies only to the territories where such authority is established and can be exercised." As to what is the sufficient establishment of the occupying military authority there may be a question; but the following quotations from leading authorities upon the matter may amplify and clarify this article to a sufficient degree: "In trying to express more precisely the spirit of Article 42 of this convention," Westlake says, "we can scarcely do better than quote Hall, who says the just requirements of an invader 'might probably be satisfied, and at the same time sufficient freedom of action might be secured to the invaded nation, by considering that a territory is occupied as soon as local resistance to the actual presence of the enemy has ceased and continues to be occupied so long as the enemy's army is on the spot, or so long as it covers it, unless the operations of the national or an allied army or local insurrection have re-estab lished the public exercise of the legitimate sovereign authority.""1 General George B. Davis, U. S. A., probably the best American authority upon the law of war, says more fully that "a portion of the territory of the enemy is, therefore, said to be occupied when the authority of the former government has been overthrown within its boundaries and it is held by a sufficient military force to prevent uprising, to protect life and property, and secure the prevalence of order throughout the occupied district. Occupation is thus seen to be a question of fact and can never be presumed; if a territory frees itself from the exercise of this authority, it ceases to be regarded as occupied. "In accordance with the present view of occupation, therefore, no permanent change ensues in the national character or allegiance of the population of an occupied territory as a result of the mere fact of occupation. The invader maintains himself in such territory by force. The relation existing between the commanding general of the occupying force and the population is not that of allegiance but of constrained obedience, and it exists only so long as he is able to compel such obedience by force. The authority exercised by an invader is something entirely different from that exercised by the legitimate government and rests upon an entirely different basis. In most respects it is greater and more extensive than the latter and has no foundation in the consent of the governed. "The legitimate government of the occupied territory is temporarily displaced and overthrown, the functions of its officers and agents are suspended, and the territory is ruled by martial law. The ordinary civil laws of the country continue to exist and the courts are permitted to administer them, but they do so at the pleasure of the commanding general of the occupying forces. No guarantees, constitutional or otherwise, 1 Hall, 6th ed., p. 480, quoted by Westlake, "Int. Law," 2d ed., vol. II, pp. 94, etc. are effective against his will, and his consent to their existence or execution may be withdrawn at any time. The occupation is military, not civil, and the invader, in carrying on his government, is controlled by various considerations, among which, from the necessities of the case, those of a military character are likely to prevail." 168. The Authority of the Military Occupant.—Article 43 of The Hague Convention IV says that: "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 re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."2 This authority for military government is the fact of the occupation. A proclamation or public notice to the inhabitants informing them of the extent of the occupation and the powers proposed to be exercised is customary but not necessary. Military government, whether administered by officers of the navy, or those of the army of the belligerent, or by civilians left in office, or by other civilians appointed by the military commander, is the government of and for all of the inhabitants, native or foreign. The local laws or ordinances may remain in force, and, in general, as a matter of convenience, should be subject, however, to their being in whole or in part suspended and others substituted at the discretion of the governing military authority.3 "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force so far as they are compatible with the new 1 Davis, "Int. Law," 3d ed., pp. 330, 331. order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation." In all cases the authority of the occupant must accord with the laws and usages of war. 169. Limitations to the Military Authority of the Occupant. -Since The Hague convention on the laws and customs of war the following limitations to the military authority of the occupant over the territory of the hostile state have been agreed upon by the signatories to this convention, to whom they now apply, the United States being among them: "Article 44. Any compulsion on the population of occupied territory to furnish information about the army of the other belligerent or about his means of defence is forbidden. "Article 45. Any compulsion on the population of occupied territory to take the oath to the hostile power is forbidden. "Article 46. Family honor and rights, the lives of individuals and private property, as well as religious convictions and liberty of worship must be respected. "Private property cannot be confiscated. "Article 47. Pillage is formally prohibited. "Article 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the state, he shall do it, as far as possible, in accordance with the rules in existence and the assessment in force and will, in consequence, be bound to defray the expenses of the administration of the occupied territory on the same scale as that to which the legitimate government was bound. "Article 49. If, besides the taxes referred to in the preceding article, the occupant levies other money contributions in the occupied territory, this can only be for military necessities or the administration of such territory. 1 Order of President McKinley, July 18, 1898; Moore's "Digest," vol. VII, p. 262. |