Military occupation. - Territory is considered occupied when it is actually placed under the authority of the hostile army.
    The occupation extends only to the territory where such authority has been established and can be exercised (H.R., art. 42).

    Occupation, question of fact. - Military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader is in position to substitute and has substituted his own authority for that of the legitimate government in the territory invaded.

    Does not transfer sovereignty. - Being an incident of war, military occupation confers upon the invading force the right to exercise control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity for maintaining law and order, indispensable to both the inhabitants and to the occupying force.

    Distinguished from invasion. - The state of invasion corresponds with the period of resistance. Invasion is not necessarily occupation, although it precedes it and may frequently coincide with it. An invader may push rapidly through n large portion of enemy country without establishing that effective control which is essential to the status of occupation. He may send small raiding parties or flying columns, reconnoitering detachments, etc., into or through a district where they may be temporarily located and exercise control, yet when they pass on it cannot be said that such district is under his military occupation.

    Distinguished from subjugation or conquest. – Military occupation in a foreign war, being based upon the fact of possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. The occupation is essentially provisional.

    On the other hand subjugation or conquest implies a transfer of sovereignty. Ordinarily, however, such transfer is effected by a treaty of peace. When sovereignty passes, military occupation, as such, must of course cease; although the territory may, and usually does for a period at least, continue to be governed through military agencies which have such powers as the President or Congress may prescribe.

    Occupation must be effective. - It follows from the definition that military occupation must be both actual and effective; that is, the organized resistance must have been overcome and the forces in possession must have taken measures to establish law and order. It is sufficient that the occupying army can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district. It is immaterial by what methods the authority is exercised, whether by fixed garrisons or flying columns, small or large forces.

    Presence of invested fort immaterial. - The existence of a fort or defended area within the occupied district, provided such place is invested, does not render the occupation of the remainder of the district ineffective, nor is the consent of the inhabitants in any manner essential.

    Proclamation of occupation. - In a strict legal sense no proclamation of military occupation is necessary. On account of the special relations established between the inhabitants of the occupied territory and the occupant by virtue of the presence of the invading force, the fact of military occupation, with the extent of territory affected, should be made known. The practice of this Government is to make this fact known by proclamation.

    Commencement of occupation. - In the absence of a proclamation or similar notice the exact time of commencement of occupation may be difficult to fix. The presence of a sufficient force to disarm the inhabitants or enforce submission and the cessation of local resistance due to the defeat of the enemy's forces determine the commencement of occupation.

    Cessation of occupation. - Occupation once acquired must be maintained. In case the occupant evacuates the district or is driven out by the enemy, or by a levee en masse, and the legitimate government actually resumes its functions, the occupation ceases. It does not cease, however, if the occupant, after establishing his authority, moves forward against the enemy, leaving a smaller force to administer the affairs of the district. Nor does the existence of a rebellion or the operations of guerrilla bands cause it to cease unless the legitimate government is reestablished or the occupant fails promptly to suppress such rebellion or guerrilla operations.

    Necessity for military government. - Military government is the organization through which a belligerent exercises authority over the territory of the enemy invaded and occupied by him. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military operations or occupation.

    Duty to restore law and order. - The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country (H.R., art. 43).

    Functions of government. - All the functions of the hostile government - legislative, executive, or administrative whether of a general, provincial, or local character, cease under military occupation, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader.

    Nature of government. - It is immaterial whether the government established over an enemy's territory be called a military or civil government. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the laws of war. During the military occupation it may exercise all the powers given by the laws of war.

    The laws in force. - The principal object of the occupant is to provide for the security of the invading army and to contribute to its support and efficiency and the success of its operations. In restoring public order and safety he will continue in force the ordinary civil and criminal laws of the occupied territory which do not conflict with this object. These laws will be administered by the local officials as far as practicable. All crimes not of a military nature and which do not affect the safety of the invading army are left to the jurisdiction of the local courts.

    Power to suspend and promulgate laws. - The military occupant may suspend existing laws and promulgate new ones when the exigencies of the military service demand such action.

    Nature of laws suspended. - The occupant will naturally alter or suspend all laws of a political nature as well as political privileges and all laws which affect the welfare and safety of hi command. Of this class are those relating to recruitment in occupied territory, the right of assembly, the right to bear arms, the right of suffrage, the freedom of the press, the right to quit or travel freely in occupied territory. Such suspensions should be made known to the inhabitants.

    Nature of laws promulgated. - An occupant may create new laws for the government of a country. He will promulgate such new laws and regulations as military necessity demands. In this class will be included those laws which come into being as a result of military rule; that is, those which establish new crimes and offenses incident to a state of war and are necessary for the control of the country and the protection of the army.

    Prohibition as to rights and rights of action. - It is especially forbidden * * * to declare abolished, suspended, or inadmissible in a court of law the rights and rights of action of the nationals of the hostile party (H.R., art. 23, last par.).

    General restrictions imposed; commercial relations. - The occupant has the unquestioned right to regulate commercia1 intercourse in the occupied territory; that is, he may prohibit entirely or place such restrictions and limitations upon such intercourse as he considers desirable for military purposes.

    Censorship of press and correspondence; - The military occupant may establish censorship of the press and of telegraphic and postal correspondence. He may prohibit entirely the publication of newspapers or prescribe regulations for their publication and circulation especially in unoccupied portions of the territory and in neutral countries. He is not required to furnish facilities for postal service, but may take charge of them himself, especially if the officials of the occupied district fail to act or to obey his orders.

    Means of transportation. - The military occupant exercises authority over all means of transportation, both public and private within the occupied district, and may seize and utilize them and regulate their operation.

    Regulation as to taxes. - If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the state, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate government was so bound (H.R. art. 48).

    When existing rules may be disregarded. - If, due to the flight or unwillingness of the local officials, it is impracticable to follow the rules of incidence and assessment in force, then the total amount of the taxes to be paid may be allotted among the districts, towns, etc., and the local authorities be required to collect it as a capitation tax or otherwise.

    Surplus may be used. - The first charge upon the State taxes is for the cost of local maintenance. The balance may be used for the purposes of the occupant.

    What included in taxes, tolls, etc. - The words "for the benefit of the state" were inserted in the article to exclude local dues collected by local authorities. The occupant will supervise the expenditures of such revenue and prevent its hostile use.

    Right to enforce obedience. - The occupant can demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of his forces, for the maintenance of law and order, and the proper administration of the country.

    Oath of allegiance forbidden. - It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile power (H.R., art. 45).

    Must respect persons, religious convictions, etc. - Family honor and rights, the lives of persons, * * * as well as religious convictions and practice, must be respected (H.R., art. 46).

    United States rule. - The United States acknowledges and protects, in hostile countries occupied by them, religion and morality; the persons of inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

    Reciprocal obligations of inhabitants. - In return for such considerate treatment, it is the duty of the inhabitants to carry on their ordinary peaceful pursuits; to behave in an absolutely peaceful manner; to take no part whatever in the hostilities carried on; to refrain from all injurious acts toward the troops or in respect to their operations; and to render strict obedience to the officials of the occupant. As to neutrals resident in occupied territory, see paragraphs 397 – 399, Chapter 12.

    Limitation as to services of inhabitants. - * * * Services shall not be demanded from * * * inhabitants except for the needs of the army of occupation. They shall be * * * of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.
   Such * * * services shall only be demanded on the authority of the commander in the locality occupied * * * (H.R., art. 52).

    General right to requisition services. - Services of the inhabitants of occupied territory may be requisitioned for the needs of the army. These will include the services of professional men, and tradesmen, such as surgeons, carpenters, butchers, bakers, etc.; employees of gas, electric light, and water works, and other public utilities; and of sanitary boards in connection with their ordinary functions. The officials and employees of railways, canals, river or coastwise steamship companies, telegraph, telephone, postal, and similar services, and drivers of transport, whether employed by the State or private companies, may be requisitioned to perform their professional duties so long as the duties required do not directly concern the operations of war against their own country.

    Restoration of general conditions. - The occupant can requisition labor to restore the general condition of the public works of the country to that of peace; that is, to repair roads, bridges, railways, and as well to bury the dead and collect the wounded. In short, under the rules of obedience, they may be called upon to perform such work as may be necessary for the ordinary purposes of government, including police and sanitary work.

    Construction of forts by inhabitants, etc. - The prohibition against forcing the inhabitants to take part in operations of war against their own country precludes requisitioning their services upon works directly promoting the ends of the war, such as construction of forts, fortifications, and entrenchments ; but there is no objection to their being employed voluntarily, for pay, in this class of work, except the military reason of preventing information concerning such work from falling into the hands of the enemy.

    Information about enemy by inhabitants. - A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense (H.R., art. 44).

    Interpretation of the foregoing article. - This article was reserved by Germany, Austria, Japan, Montenegro, and Russia, because it was believed that it would contravene the preexisting general rule and practice of the nations permitting impressment of guides.

    Impressment of guides. - Article 44 (par. 306) is generally construed as prohibiting the impressment of guides from the inhabitants in an occupied territory. This is the construction placed upon it by the United States. In a war against any power reserving the article the impressment of guides is not prohibited.

    Oath of officials. - The occupant may require such officials as are continued in their offices to take an oath to perform their duties conscientiously and not to act to his prejudice. Every such official who declines to take such oath may be expelled; but, whether they do so or not, they owe strict obedience to the occupant.

    Salaries of officials. - The salaries of civil officials of the hostile government who remain in the invaded territory and continue the work of their offices, especially those who can properly continue it under the circumstances arising out of the war - such as judges, administrative or police officers, officers of city or communal governments - are paid from the public revenues of the invaded territory, until the military government has reason wholly or partially to dispense with their services. Salaries or incomes connected with purely honorary titles are always suspended.

    Removal of civil officials. - By virtue of his powers of control the occupant is duly empowered to remove officials of every character. He will on principle remove political officials. Any official considered dangerous to the occupant may be removed, made a prisoner of war, or expelled from the occupied territory.

    Punishment of civil officials. - Acts of civil officers that are harmful or injurious to the occupant will be dealt with under the laws of war. Other wrongs or crimes committed by them will be punished according to the law of the land.

    Destruction and seizure of. - It is especially forbidden * * * to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war (H.R., art. 23, par. (g)).

    General rule as to war right to seize and destroy property. - The rule is that in war a belligerent may destroy or seize all property of whatever nature, public or private, hostile or neutral, unless such property is specifically protected by some definitive law of war, provided such destruction or seizure is imperatively demanded by the necessities of war.

    Real property of a State. - The occupying State shall be regarded as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State and situated in the occupied territory. It must safeguard the capital of these properties and administer them in accordance with the rules of usufruct (H.R., art. 55).

    Occupant's disposition of such property. - The occupant does not have the absolute right of disposal or sale of enemy real property. As administrator or usufructuary he should not exercise his rights in such wasteful and negligent manner as seriously to impair its value. He may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines. A lease or contract should not extend beyond the conclusion of the war.

    State real property susceptible of direct military use. - Real property of a State which is of direct military use, such as forts, arsenals, dockyards, magazines, barracks, railways, canals, bridges, piers, and wharves, remains in the hands of the occupant until the close of the war, and may be destroyed or damaged, if deemed necessary, in military operations.

    Property of municipalities, etc. - The property of municipalities, that of institutions dedicated to religion, charity, and education, the arts and sciences, even when State property, shall be treated as private property.
    All seizures of, destruction, or willful damage done to institutions of this character, historic monuments, works of art, science, is forbidden and should be made the subject of legal proceedings (H.R., art. 56).

    Authorized treatment. The property included in the foregoing rule may be utilized in case of necessity for quartering the troops, the sick and wounded, horses, stores, etc., and generally as prescribed for private property. Such property must, however, be secured against all avoidable injury, even when located in fortified places which are subject to seizure or bombardment

    Movable property - An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations (H.R., art. 53, par. 1).

    Two classes of movable property. - All movable property belonging to the State directly susceptible of military use may be taken possession of as booty and utilized for the benefit of the invader's government. Other movable property, not directly susceptible of military use, must be respected and cannot be appropriated.

    Property of unknown ownership treated as public property. - Where the ownership of property is unknown - that is, where there is any doubt as to whether it is public or private, as frequently happens - it should be treated as public property until ownership is definitely settled.

    Must be respected - Private property * * * must be respected (H.R., art. 46, par. 1).

    Devastation - The measure of permissible devastation is found in the strict necessities of war. As an end in itself, as a separate measure of war, devastation is not sanctioned by the law of war. There must be some reasonably close connection between the destruction of property and the overcoming of the enemy's army. Thus the rule requiring respect for private property is not violated through damage resulting from operations, movements, or combats of the army; that is, real estate may be utilized for marches, camp sites, construction of trenches, etc. Buildings may be used for shelter for troops, the sick and wounded, for animals, for reconnaissance, cover defense, etc. Fences, woods, crops, buildings, etc., may be demolished, cut down, and removed to clear a field of fire, to construct bridges, to furnish fuel if imperatively needed for the army.

    American rule. - This rule (respect for private property, etc.) does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, boats or ships, and lands, for temporary and military use.

    Confiscation. - Private property cannot be confiscated (H.R., art. 46, par. 2).

    Booty. - All captures and booty belong, according to the modern law of war, primarily to the government of the captor. Prize money whether on land or sea can now be claimed only under local law.

    Private gain by officers and soldiers prohibited. - Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate.

    Pillage. - Pillage is formally forbidden (H.R., art. 47).

    Seizure and devastation of private property. – Private property can be seized only by way of military necessity for the support or other benefit of the army or of the occupant. All destruction of property not commanded by the authorized officer, all pillage or sacking, even after taking a town or place by assault, are prohibited under the penalty of death or such other severe punishment as may seem adequate to the gravity of the offense.

    Private property susceptible of direct military use. – 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, depots 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 declared (H.R., art. 53, par. 2).

    What included in rule. - The foregoing rule includes everything susceptible of direct military use, such as cables, telephone and telegraph plants, horses and other draft and riding animals, motors, bicycles, motorcycles, carts, wagons, carriages, railways, railway plants, tramways, ships in port, all manner of craft in canals and rivers, balloons, airships, airplanes, depots of arms, whether military or sporting, and in general all kinds of war material.

    Destruction of such property. - The destruction of the foregoing property and all damage to the same is justifiable if it is required by the exigencies of the war.

    Submarine cables. - Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made (H.R., art. 54).

    Requisitions. - Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied. Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible (H.R., art. 52).

    What may be requisitioned. - Practically everything may be requisitioned under this article that is necessary for the maintenance of the army, such as fuel, food, forage, clothing, tobacco, printing presses, type, leather, cloth, etc. Billeting of troops for quarters and subsistence is also authorized.

    Method of requisitioning. - Requisitions must be made under the authority of the commander in the locality. No prescribed method is fixed, but if practicable requisitions should be accomplished through the local authorities by systematic collection in bulk. They may be made direct by detachments if local authorities fail for any reason. Billeting may be resorted to if deemed advisable.

    The amount taken. - The expression "needs of the army" was adopted rather than "necessities of the war" as more favorable to the inhabitants, but the commander is not thereby limited to the absolute needs of the troops actually present. The object was to avoid reducing the population to starvation.

    Fixing prices - The prices of articles requisitioned will be fixed by agreement if possible, otherwise by military authority. The prices of commodities on sale may also be regulated and limits placed on the hours and places of trading. All authorities agree that it is good policy to pay cash if possible and to take up receipts as soon as possible.

    Method of enforcing. - If cash is paid, coercion will seldom be necessary. The coercive measures adopted will be limited to the amount and kind necessary to secure the articles requisitioned.

    Contributions. - If, in addition to the taxes mentioned in the above article (art. 48; see par. 294), the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question (H.R., art. 49).

    Methods of levying contributions - No contribution shall be collected except under a written order and on the responsibility of a commander in chief.
    The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.
    For every contribution a receipt shall be given to the contributor (H.R., art. 51).

    Penalty for individual acts of inhabitants. - No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which they cannot be regarded as jointly and severally responsible (H.R., art. 50).

    Above article does not prevent reprisals. - Reprisals by the occupant for violations of the laws of war or breach of the occupant's proclamations or regulations by enemy individuals not belonging to the armed forces are not prohibited by the above article. (See par. 358, Chapter 11, “Reprisals”.)