亨利-梅因：国际法Lecture 10

　　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 invader³. The trenchant⁴ 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 emanating⁵ from the Conference， a large number of their proposals are found in the Manuals of warfare⁶ 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 corps⁷ which they form shall be treated with humanity， and not shot or hanged as mere⁸ 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 tinges⁹. Of old the theory of the position of an invaded country was much affected¹⁰ 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 embodying¹¹ a legal fiction under which a citizen who should after captivity¹² return to his country， or property which after capture should fall again into the hands of the restored owner， reverts¹³ 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 retired¹⁴， 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 reigned¹⁵ over at Mandalay， refused， even though utterly¹⁶ defeated， to enter into any treaty of cession¹⁷， 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 nominal¹⁸， 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 fortress¹⁹ 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 supplanted²⁰ 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 derives²¹ 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 followers²² 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 amenable²³ 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 discretion²⁴ of the invader. He may abrogate²⁵ 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 jurisdiction²⁶. The special tribunals created by an invader for carrying into effect the rule of military occupation in the case of individual offenders²⁷ are usually military courts， framed on the model and carrying on their proceedings²⁸ after the manner of courts-martial²⁹； but of course， technically³⁰， 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 expedient³¹， the inhabitants guilty of breaking the rules laid down by him for securing the safety of the army. The right of inflicting³² such punishment in case of necessity is undoubted； but the interest of the invader no less than the dictates³³ 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 leniency³⁴ consistent with the safety and well-being³⁵ 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 stringent³⁶ in places and countries fully³⁷ occupied and fairly conquered. Greater severity may be exercised in places or regions where actual hostilities³⁸ 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 paramount³⁹ 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 enlist⁴⁰ as soldiers or to engage actively⁴¹ in military operations against their own country. The theory in its full sway is this. In a country militarily occupied all executive and legislative⁴² 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 authoritative⁴³ 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 circumscribed⁴⁴ 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 abeyance⁴⁵ 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 in closing a war is， sometimes， to find an authority capable of making peace. This difficulty was much felt by the Germans after they had proceeded a great length in their conquest of France in the last war. They made up their minds that the only authority which could make a treaty on the part of France which Frenchmen would respect was a National Assembly， and therefore before making peace they insisted that such an Assembly should be elected.

　　I think it may be useful to say a few words on the treaties of peace by which war is nowadays brought to an end. In modern times a peace is always preceded by an armistice⁴⁶， and an armistice by a suspension of arms， which is only a shorter armistice. The rule laid down by the international lawyers is that a state of war is brought to an end by a treaty of peace or by a general truce⁴⁷. A treaty of peace puts an end to the war and absolutely abolishes the subject of it； a general truce puts an end to the war， but leaves undecided the question which gave occasion to it. In modern times these general truces⁴⁹ have fallen out of use. They were common enough in the Middle Ages， especially between the Turks and their Christian⁵⁰ enemies， because the religion of neither party permitted the combatants to conclude a definite treaty of peace. It has always been laid down that treaties and general truces can only be concluded by the sovereign power of a state， and not that of any other authority. An armistice is defined as a partial truce. The power to conclude an armistice is essential to the fulfilment by the commanding officer of his official duties， and therefore he is presumed to have such power delegated to him by his sovereign without any special command. This presumption⁵¹ of authority is held to be so strong that it cannot be rebutted⁵² by any act of the sovereign. If an officer makes an armistice in disobedience to orders received from his sovereign， he is punishable by that sovereign； but the sovereign is bound by the armistice， inasmuch as the enemy could not be supposed to have known of the limitation of authority imposed on the officer.

　　It is suggested by several of the international writers， and it is probable， that armistices⁵³ first arose from the truce or truces of God which were repeatedly proclaimed by the Church. These truces took many and very singular forms. Thus one famous truce of God was to begin every Wednesday at sunset， and last till the following Monday at sunrise. It was to continue from Advent⁵⁴ to the octaves of Epiphany， and from Quinquagesima Sunday to the octaves of Easter. If any person broke the truce and refused to give satisfaction he was excommunicated， and after the third admonition the bishop⁵⁵ who excommunicated him was not to admit him into communion under the penalty of deprivation⁵⁶. The truce was confirmed at many councils， and especially at the Lateran Council of 1179. Some of the regulations were extended into England， and Wednesday and Friday were set apart as days for keeping peace. It is exceedingly likely that these temporary and limited truces accustomed the warlike communities of those days to temporary suspensions of hostilities， and armistices manifestly grew into considerable favour. But they also gave rise， and indeed they give rise still， to a number of rather difficult questions. We find a greet number of rules laid down as to what belligerent¹ parties might do or might not do during an armistice. The views taken of these duties in modern times are decidedly contradictory⁵⁷. On the one side it is held that all equivocal acts of hostility⁵⁸ should be abstained⁵⁹ from during an armistice whether they come， or do not， within the description of acts capable of being interrupted by the enemy； while on the other hand it is contended that， according to the practice of modern warfare， belligerents have a perfect right to alter the disposition⁶⁰ of their troops， construct entrenchments， repair breaches⁶¹， or do any acts by which they may think fit to prepare themselves for the resumption of hostilities. The violation⁶² of an armistice by either of the contending parties gives to the other the right to put an end to it； but its violation by private individuals only confers the right to demand the punishment of the guilty persons. The question is one of great practical difficulty， and in all the Manuals the advice is given that the greatest caution should be observed in the case of an armistice to specify⁶³ the acts which are or are not to be permitted during its continuance.

　　Another question which， evidently， was thought to present great difficulties， was the date of the commencement and the time of the termination of an armistice. Supposing it to be made for a certain number of days —— that is， from the 1st of May to the 1st of August —— questions have been raised whether the days named are both included or excluded. The usual mode of reckoning in England as legal time is to include the first day and exclude the last. （consequently， in the above-mentioned case， according to English law， the truce begins at the moment on which the 30th of April ends and ceases at the moment at which the 31st of July ends. To avoid difficulties， it should be stated from the 1st of May inclusive to the 1st of August inclusive， if it is intended to include the 1st of August； or better still to begin at a certain hour on one day， and to end at a certain hour on another. In the case of a short armistice the number of hours should be stated； and it is advisable in all cases where an armistice has been arranged， to agree to indicate by some signal for example， the hoisting⁶⁴ of a flag or the firing of a cannon⁶⁵ —— both the commencement and the termination of the armistice. An armistice， it is to be remembered， is only a qualified⁶⁶ peace， and the state of war continues， though active hostilities are suspended. This anomalous⁶⁷ state of things leads， in the absence of express stipulation⁶⁸， to considerable difficulty in ascertaining⁶⁹ what is allowed to be done or continued to be done. Apart from particular stipulation， the general rule seems to be that a belligerent cannot take advantage of an armistice to do any aggressive act which but for the armistice he could not have done without danger to himself. For example， in the case of an armistice between a besieging⁷⁰ army and a besieged⁷¹ town， the besiegers must not continue their works against the town， and the besieged are forbidden to repair their walls， raise fresh fortifications， or introduce succours or reinforcements into the town. The last dangerous question which arose in Europe， arose on one of the class of terms which I have been examining.

　　Before closing this lecture it win be useful to note the substance of the statements made in the modern Manuals in respect to a number of terms which are in much use in this part of military operations， but which are very loosely employed by civilians⁷² and even by historical writers. First as to what is called a Capitulation. A capitulation is an agreement for the delivery of a besieged place or forces divided in the field into the hands of the enemy. The commanders on either side are invested with popover to agree to the terms of a capitulation， inasmuch as the possession of such powers is necessary to the proper exercise of their functions. On the other hand， the extent of their powers is limited by the necessity for their exercise. In the surrender of a place the questions at issue are the immediate⁷³ possession of the place itself， and the fate of the garrison⁷⁴. A capitulation， therefore， must be limited to these questions. It may declare that the garrison is to surrender unconditionally⁷⁵ as prisoners of war， or to be entitled to march out with all the honours of war. It may also provide that the soldiers comprising the garrison are not to serve again during the war. Further conditions for the protection of the inhabitants and of their privileges， and for their immunity⁷⁶ from pillage⁷⁷ or contribution， may fairly be put into a capitulation. A stipulation in a capitulation to the effect that the garrison should never again bear arms against the forces of the conquering state， or that the sovereignty of the town should change hands， would be invalid⁷⁸， inasmuch as powers for such extensive purposes belong only to the sovereign power of the State， and cannot ever be presumed to be delegated to inferior officers.

　　A few words will not be thrown away on Flags of Truce. Such a flag can only be used legitimately⁷⁹ for the purpose of entering into some arrangement with the enemy. If adopted with a view surreptitiously to obtain information as to the enemy's forces， it loses its character of a flag of truce and exposes its bearer to the punishment of a spy. Great caution， however， and the most conclusive⁸⁰ evidence are held to be necessary before the bearer of such a flag can be convicted as a spy. The bearer of a flag of truce， at the same time， should not be allowed without permission to approach sufficiently⁸¹ near to secure any useful information. When an army is in position， the bearer of a flag of truce should not， without leave， be permitted to pass the outer line of signals， or even to approach within the range of their guns.

　　When a flag of truce is sent from a detachment during an engagement， the troop from which it is sent should halt and cease firing. The troop to which it is sent should， if the commander is willing to receive it， signal to that effect and also cease firing； but it must be understood that firing during an engagement does not necessarily cease on the appearance of a flag of truce， and that the parties communicating with such flags cannot complain if those who sent them should carry on the firing. When it is intended to refuse admission to a flag of truce， the bearer should， as soon as possible， be signalled to retire； and if he do not obey the signal， he may be fired upon.

　　A few words may be usefully added on other terms of the art of war which are allied⁸² to those which I have been defining. A Cartel is an engagement for the exchange of prisoners of war. A cartel ship is a ship commissioned for the exchange of prisoners. She is considered a neutral ship， and must not engage in any hostilities or carry implements⁸³ of war except a signal gun. A Safe-conduct or Passport is a document given by the commander of a belligerent force enabling certain persons to pass， either alone or with servants and effects， within the limits occupied by the force of such commanding officer. In the so-called Schnabele case which arose on the frontier of France and Germany， you may remember， it was decided⁴⁸ there might be an implied safe-conduct. The expression 'passport' is usually applied⁸⁴ to persons， and 'safe-conduct' both to persons and things. A safe-conduct for a person is not transferable， and comes to an end at the date stated， unless the bearer is detained by sickness or other unavoidable cause， in which case it terminates on the cessation of the cause. A safe-conduct may be revoked⁸⁶ if it is injurious to the State； that is， an officer preparing for a great expedition may revoke⁸⁵ the safe-conduct of a person who would by means of such safe-conduct be able to carry information to the enemy. In such case， however， he must give time and opportunity to the bearer to withdraw in safety. A safe-conduct， however， for goods admits of their being removed by some person other than the owner， unless there is some specific objection against the person employed. A Safe-guard is a guard posted by a commanding officer for the purpose of protecting property or persons against the operations of his own troops. To force such a guard is by English law a military offense⁸⁷ of the gravest character， and our Army Act makes it punishable by death.

　　You may remember that not many months ago serious uneasiness was felt throughout Europe on account of an incident on the new French and German frontier. A French official， belonging by birth to the former German population of provinces now French， was found on territory now German， under circumstances which made him liable to arrest under a German law. His defence was， that on that and several past occasions he had been invited by the German frontier officials to help in settling border questions. The German officials asserted that， however that might be， he was on the present occasion engaged in acts of hostility to Germany. After some diplomatic correspondence， the German Government laid down that， if German officials invited a French functionary⁸⁸ to cross the frontier into German territory for any reason， he enjoyed an implied safe-conduct to his home in France， and therefore M. Schnabele was released. The controversy⁸⁹， therefore， ended in the establishment of the point that a safe-conduct may be not only express but implied.