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tions 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, on this class of work, except the military reason of preventing information concerning such work from falling into the hands of the enemy.
1 The better rule is to pay for all services rendered whenever practicable to do so, since it avoids antagonizing the people against the occupant and forcing stronger adherence to his own government. Vide Les Lois, Jacomet, par. 93; Land Warfare, Opp., par. 392.
321. Can not force furnishing information about enemy.-H. R. Art. XLIV. 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.
322. Interpretation of rule.—This article was reserved by Austria-Hungary, Bulgaria, Montenegro, Russia, Japan, and Roumania, because it was believed that the prohibition was contrary to the general rule and practice of nations as expressed in G. O. 100, 1863, art. 93, that "All armies in the field stand in need of guides, and impress them if they can not obtain them otherwise.” That the impressment of guides was intended to be forbidden by this rule seems evident from the action of the above nations who reserved it, and as well from the discussions at The Hague.
1 Spaight, War Rights on Land, pp. 368–371. Les Lois, Jacomet, art. 95. Land Warfare, Opp., par. 382 and note h. Hague Conference, 1907, Actes, Vol. III, pp. 136–141. Mr. Holland places the above rule (H. R. XLIV) in square brackets, to indicate that it possesses but little value. War on Land, art. 104.
323. The practice as to guides.-As to the countries making reservations, the old practice will prevail. Officers of all armies with experience in the field know that guides are absolutely essential to success in practically all military operations in the field in unknown enemy country. Whenever, therefore, guides are in fact essential to success, and, for that reason, a military necessity, the foregoing rule must give way to and be interpreted as subordinate to such military necessity.
1 No invader can be expected to forego the chances of success or imperil seriously his operations against the enemy by foregoing a well-understood and well-established practice of armies in the field as to the employment of a few individuals of his enemy as guides. Moreover, he must be protected in the use of such guides, because the success of his operations and the safety of his army are and must be his first consideration before which everything else must give way and be subordinated; and, as said by Mr. Lieber, Military government-martial law-affects chiefly the police, etc.,
and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations." G. 0. 100, 1863, art. 10.
OFFICIALS IN OCCUPIED TERRITORY.
324. 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.
1 G. 0. 100, 1863, art. 26, states : “ Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious Government or rulers, and they may expel anyone who declines to do
Such oath is not essential, and should not be insisted upon, especially when the form of the oath implies allegiance which pertains to sovereignty.
325. Retention of officials.-It is to the best interests of the occupant, and more especially to that of the population, that at least some of the civil officials should remain in their offices in order to assist in the maintenance of order, as well as for the safety of the inhabitants themselves and of their property."
1 Hague Conference, Actes, 1899, p. 148.
326. Municipal officials should remain-Municipal officials, including the judges and magistrates, sanitary and police authorities, as well as the staffs of museums, libraries, and allestablishments entitled to special protection during hostilities, should remain and be retained in office if consistent with the safety of the Army. The political officials, as well as railway, postal, telegraph, and telephone officials, will probably cease work.
1 Land Warfare, Opp., par. 395.
327. 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,
1G. 0. 100, 1863, art. 39..
328. Resignation of officials.--An official of the hostile government who has accepted service under the occupant should be permitted to resign and should not be punished for exercising such privilege. Such official should not be forced to exercise his functions against his will."
1 Brussels Conference, p. 243; Spaight, War Rights on Land, p. 365.
329. 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.
330. 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.
TREATMENT OF ENEMY PROPERTY. 331. Destruction and seizure of.-H. R, Art. XXIII, par, (g). 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.
332. General rule as to war right to seize and destroy property.-The rule is that in war a belligerent can destroy or seize all property of whatever nature, public or private, hostile or neutral, unless such property is specifically protected by some definite law of war, provided such destruction or seizure is imperatively demanded by the necessities of war.
1 This right is recognized by comparison of H. R. XXIII and XLVI. The only property safeguarded is the matériel of the mobile sanitary formations under the Geneva Convention.
For the American rule, see G. 0. 100, 1863, art. 15, ante par 12. The British rule is given as follows: "The pecessities of war' may obviously justify not only the seizure of private property but even the destruction of such property, and the devastation of whole districts." Spaight, War Rights on Land, p. 116.
The German rule is as follows: “No damage must be done, not even the most trivial, which is not necessitated by military reasons. Every damage the very greatest-is justifiable if war demands it or if it is a consequence ot the proper carrying on of war," Kriegsbrauch, p. 54.
PRIVATE PROPERTY. 333. Must be respected.-H. R. XLVI, par. 1. Private property
must be respected. 334. 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 reconnoissance, 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.”
1 Vide Hall, Int. Law (5th ed.), p. 535; Spaight, War Rights on Land, p. 112 et seq. ; Dig. Int. Law, Moore, sec. 1113.
335. 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, lands, and churches, for temporary and military use."
16. 0. 100, 1863, art. 37, par, 2.
336. Confiscation.-H. R. Art. XLVI, par. 2. Private property can not be confiscated."
1 The seizure of enemy property by the United States as prize of war on land, jure belli, is not authorized by the law of nations, and can be upheld only by an act of Congress. United States v. 1,756 Shares Capital Stock (5 Blatchf., 231).
" It is no bar to the recovery of a claim that it was confiscated during the rebellion by a Confederate court, because due to a loyal citizen." (Stevens v. Griffith, 111 U. S., 48.)
“The Government recognized to the fullest extent the humane maxims of the modern law of nations, which exempt private property of noncombatant enemies from capture as booty of war. (U. s. v. Klein, 13 Wall., 128, 137; Lamar v. Browne, 92 U. S., 194.)
“ If property be such that it ministers directly to the strength of the enemy and its possession alone enables him to supply himself with the munitions of war and to continue the struggle, then it may be confiscated.”, (Prize cases, 2 Black, 687.)
337. 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 only be claimed under local law..
14 The rightful capture of movable property on land transfers the title to the Government of the captor as soon as the capture is completed." Young v. U. S., 97 U. S., 39, 60.
" This rule as to property on land has received very important qualifications from usage, from the reasoning of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted to special cases dictated by the necessary operation of the war, and as excluding in general the seizure of the private property of pacific persons for the sake of gain." Mrs. Alexander's Cotton, 2 Wall., 404, 419. Briggs v. U. S., 143 U. S., 346, 355-358.
As to abandoned and captured property act, see Dig. Int. Law, Moore, sec, 1152.
338. 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. Offenses to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense.'
1 G..0, 100, 1863, art. 46..
339. Pillage.--H. R. Art. XLVII. Pillage is formally forbidden.
1" Pillage was defined by Prof. Holland as 'Booty, which is not permitted. He refers to the following offenses for which the death penalty or any less punishment may be inflicted when committed by a soldier on active service: (1) Leaving his commanding officer to go in search of plunder ; (2) committing any offense against the property or