The Duty of Obedience to the Belligerent Occupant

When enemy territory has been subjected to belligerent occupation, the inhabitants of that area are commonly said to be under a duty not to commit acts which would jeopardize the security of the occupant. Violations of this duty of obedience are often described in terms of ‘war treason’ and ‘war rebellion’. However, there has been no agreement on the questions whether the juridical basis for this obligation is to be sought in international law, in the municipal law of the occupied state, or merely in the superior force of the occupant and whether its violations may accurately be described in terms borrowed from municipal law. The ruthlessness and disregard for international law which have characterized the conduct of belligerent occupations during two world wars have raised these questions in a particularly acute form. Although the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 profited from experience gained since the adoption of Hague Convention No. IV of 1907, it did not purport to be a complete recodification of the law of belligerent occupation.1 The fundamental question of the relationship existing between the inhabitant and the occupying Power remains for the most part a problem of the common law of war and is illuminated only fitfully by explicit provisions of the new Geneva Convention.

The protection of the civilian population of occupied areas against oppression by the occupant has consistently been a guiding principle of the law of belligerent occupation. In the changing tides of warfare it is essential that, to the maximum extent compatible with the conduct of hostilities, the civilian non-combatant should be safeguarded in his person, his property, his loyalties, and in the legal order to which he is subject. It is inevitable, however, that the inhabitants of an occupied area will chafe under enemy rule and under the restrictions placed upon them in the interest of the occupant’s security and that they will in numerous instances, acting either singly or in concert, commit acts inconsistent with the security of the occupying forces. The occupant must undoubtedly have the means of dealing, and dealing severely, with such acts, whether or not they arise from hostile intent. It must be recognized, on the other hand, that there is a tendency for the occupant to project his anger indiscriminately upon the guilty and innocent alike and to impose excessive penalties on the wrongdoers when he is exposed to conduct prejudicial to his safety. On what juridical basis the legitimate protection of the occupant against hostile or dangerous acts may best be reconciled with the protection of civilians against arbitrary and unwarranted penalties and punishments is the problem to which this article is directed. To this end it will be necessary to consider the nature of the duty which the inhabitant owes to the occupant and the propriety of describing acts of resistance as ‘war treason’ or as ‘war rebellion’.

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