亨利-梅因：国际法Lecture 10

　　LECTURE X. MENTIONS OF BELLIGERENTS ON LAND.

　　The Brussels Conference failed to solve a number of questions of modern origin which have arisen as to the status of the civil population of a country when， by rising en masse， they take upon themselves military duty in resistance to an invader. The trenchant German scheme， which was submitted to the Conference， failed to command support， and a number of rules， which were not open to the same objections as those which the German delegate proposed， were not universally acceptable. But， as in the case of many other recommendations emanating from the Conference， a large number of their proposals are found in the Manuals of warfare which so many civilised Governments have now placed in the hands of their officers. As regards the most important point which had to be settled， there is a general tendency to advise that a uniform of some kind shall be adopted by the non-military population， and that the corps which they form shall be treated with humanity， and not shot or hanged as mere marauders. These questions do not become of much practical importance till a large part 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 troops as exemplifying the point of a war at which this branch of law assumes a new importance. We have now to consider the legal position of that part of the invaded country which is under military occupation by the enemy. The view of a country in such a position has much changed in modern tinges. Of old the theory of the position of an invaded country was much affected by the Roman Law. Land， like everything else， might be captured by occupancy （occupatio） subject to what the Romans called post-liminium， a legal rule which is generally described as embodying a legal fiction under which a citizen who should after captivity return to his country， or property which after capture should fall again into the hands of the restored owner， reverts to his or its antecedent position. Thus territory militarily occupied was regarded as passing to the occupant subject to the ill-defined risks arising from the return of the former sovereign. Frederick the Great， when he had invaded a country， usually compelled the population to supply him with recruits； and there is one instance in which the King of Denmark sold what were then two Swedish provinces —— Bremen and Verden —— to Hanover. The inconvenience of this condition of the law was much felt after the close of the Seven Years' War， and the position of a country once invaded， from which the enemy has retired， was always settled by particular treaty. Manifold as have been the variations of boundary in Europe， they are now always regulated by treaty at the end of a war， and even in the East it is now not easy to find territory held by the rights arising from simple conquest. The only instance of a new province held on the mere title of conquest， and incorporated with the other territories of the conquering country， is the Indian province long known as Lower Burmah. The King， who still retained a part of his territories， which he reigned over at Mandalay， refused， even though utterly defeated， to enter into any treaty of cession， and after the second war Lower Burmah was treated as already part of the general Indian territory.

　　I have said that the most critical moment in great wars of invasion is that at which a large part of the territory is militarily occupied. There is very much on the subject in the modern Manuals of war. The following is a summary of the law.

　　An invader is said to be in military occupation of so much of a country as is wholly abandoned by the forces of the enemy. The occupation must be real and not nominal， and it is laid down that a 'paper' occupation is even more objectionable in its character and effects than a 'paper' blockade On the other hand， the occupation of part of a district

from the whole of which the enemy has retired， is necessarily an occupation of that district， as it is impossible in any other way to occupy any considerable extent of territory. The true test of military occupation is exclusive possession. For example， the reduction of a fortress which dominates the surrounding country gives military possession of the country dominated， but not of any other fortress which does not submit to the invader. Military occupation ceases as soon as the forces of the invader retreat or advance in such a manner as to quit their hold on the occupied territory. In the event of a military occupation the authority of the regular Government is supplanted by that of the invading army. The rule imposed by the invader is the law of war. It is not the law of the invading state nor the law of the invaded territory. It may in its character be either civil or military， or partly one and partly the other. In every case the source from which it derives its authority is the same， namely the customs of war， and not any municipal law； and the General enforcing the rule is responsible only to his own Government and not to the invaded people. The rule of military occupation has relation only to the inhabitants of the invaded country. The troops and camp followers in a foreign country which has been occupied let us say by the English army remain under English military law， and are in no respects amenable to the rule of military occupation. As a general rule， military occupation extends only to such matters as concern the safety of the army， the invader usually permitting the ordinary civil tribunals of the country to deal with ordinary crimes committed by the inhabitants. The course， however， to be adopted in such a case is at the discretion of the invader. He may abrogate any law in the country， and substitute other rules for it. He may create special tribunals， or he may leave the native tribunals to exercise their usual jurisdiction. The special tribunals created by an invader for carrying into effect the rule of military occupation in the case of individual offenders are usually military courts， framed on the model and carrying on their proceedings after the manner of courts-martial； but of course， technically， courts so established by an English General would not be courts-martial within the meaning of our Army Acts. The courts would be regulated only by the will of the General. The most important power exercised by an invader occupying a territory is that of punishing， in such manner as he thinks expedient， the inhabitants guilty of breaking the rules laid down by him for securing the safety of the army. The right of inflicting such punishment in case of necessity is undoubted； but the interest of the invader no less than the dictates of humanity demand that inhabitants who have been guilty of an act which is only a crime in consequence of its being injurious to the enemy， should be treated with the greatest leniency consistent with the safety and well-being of the invading army.

　　The American rules on the subject of the government of armies in the field say； Martial law， or in other words the law of military occupation， should be less stringent in places and countries fully occupied and fairly conquered. Greater severity may be exercised in places or regions where actual hostilities exist， or are expected and must be prepared for. Its most complete sway is allowed even in the commander's own country when face to face with an enemy， because of the absolute necessities of the case and of the paramount duty of defending the country against invasion. To save the country is of course paramount to all other considerations.

　　In conclusion， it must be borne in mind that an invader cannot， according to the customs of war， call on the inhabitants to enlist as soldiers or to engage actively in military operations against their own country. The theory in its full sway is this. In a country militarily occupied

all executive and legislative power passes to the invader. It does not follow that he exercises these powers， but theoretically they belong to him. The Duke of Wellington made some observations in the English Parliament which are recognized as authoritative in all the modern Manuals. 'Martial law，' he said， 'is neither more nor less than the will of the General who commands the army； in fact， martial law means no law at all. Therefore the General who declares martial law and commands that it shall be carried into execution is bound to lay down distinctly the regulations and rules according to which his will is to be carried out. Now， I have in no country carried out martial law； that is to say， I have not governed a large proportion of a country by my own will. But then what did I do？ I declared that the country should be governed according to its own national law， and I carried into execution my so declared will.' Comparing this state of the law with that from which we started， it is evident that the ancient practice and theory of occupation have much changed. They have not now any connection with Roman Law， nor would any one nowadays think of borrowing the Roman Law for their rules. The modern practice rests， in fact， upon military necessity， and is circumscribed by the military necessity. An invading General can do certain things because， by the hypothesis， there is no one else to do them. In England the legal rule is the same in peace as in war. The soldiery can always be employed in our own country when sufficient necessity can be shown for using them through the temporary or local abeyance of civil authority.

　　This state of things comes to an end with the cessation of war. Wars do not in our day linger on， as did the old wars of succession and the old wars of religion. There is always within some moderate time a treaty of peace. Indeed， the modern difficulty

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