A duty of obedience created by international law
A third theory of the duty of the inhabitant to the occupant, which stands in roughly chronological succession to the view just described, is cast in terms of a duty of obedience imposed by the law of nations. Although this view of the relationship of persons involved in belligerent occupation would certainly not create any greater latitude to commit acts hostile to the occupant, the difference in terminology is nevertheless significant. It suggests forcefully that the relationship of the inhabitant to the occupant is quite different in nature from the relationship of a citizen to his own country, and correspondingly that acts inconsistent with the security of the occupant and offences against the integrity of the state must belong to two separate bodies of law. In practical terms, it indicates moreover that the inhabitant may not be called upon to do certain acts, such as performing military service or forced labour or furnishing information on hostile activities, which might properly be expected of one owing allegiance.
Those who adopt the view that a duty of obedience is created by international law assert that the rationale of this principle lies in the consideration that a duty of obedience and submission is owed in return for the protection the inhabitant receives. A number of continental writers find a jurisprudential basis for this duty in what is variously described by Guelle as une espece de quasi-contrat, by Loening as a communauti de droit, and by Fiore and Calvo as une sorte de contrat moral between occupant and occupied. If an inhabitant breaches this social contract, which concededly is the creation of necessity and not of choice, he is placed outside the protection of the law and may be treated at discretion, subject to the limitatations imposed by morality and natural justice. It is obvious that this legal principle, which makes an ‘outlaw’ of someone who commits some trifling act of hostility against the occupant, is difficult to reconcile with patriotic sentiment. Calvo is forced to concede that although the inhabitant ofthe occupied area ‘ought’ to desist from resistance, the same inhabitant has the ‘right’ and ‘an imperious duty’ under his own law to take up arms against the occupant and to seek to recover his freedom.28 This caveat represents in itself a withdrawal from the extreme position taken by several other international lawyers, who had asserted that continued resistance on the part of persons in occupied territory is not sanctioned by international law, should not be required by the occupied state, and is, in virtually all circumstances, ‘immoral’.29
Other continental writers who do not speak in terms of a social contract nevertheless believe that a duty of obedience, reciprocal to the occupant’s duty of protection and like it created by international law, is owed to the occupant.30 In some British texts the duty is also recognized as being created by international law, but it often appears under a different name, such as a duty of quiescence, as Spaight puts it.31 Several military manuals, including the German Kriegsbrauch im Land- kriege,32 the British Manual of Military Law,33 and the United States Rules of Land Warfare34 speak in more general terms of a duty of obedience. While the source of the duty is not made plain by these texts, a proper inference would appear to be that it is regarded as lying in international law. An ‘oath of neutrality’ was demanded of the inhabitants of occupied areas in South Africa during the Boer War,35 and this practice has received some sanction in the texts of this country.36 Whether the previous exaction of an oath from a person who commits a hostile or dangerous act serves any sound purpose other than compounding his offence when he violates his pledged word is highly questionable, and there seems an air of unreality about such devices after the passage of half a century. Professor Hyde is probably the only modern authority who sees any efficacy in this procedure, which he compares with legislation comparee, 5 (1873), p. 72; Fiore, Trattato di diritto internazionalepubblico (2nd ed., 1884), vol. iii, pp. 238—9, 245; Calvo, Le Droit international theorique etpratique (5th ed., 1896), vol. iv,
- 28 Loc. cit.
- 29 See, e.g., Loening, op. cit., pp. 76—7, in which the author especially praises the efficacy of collective punishments, and Rolin-Jaequemyns, loc. cit., pp. 319, 325.
- 30 Pillet, Les Lois actuelles de la guerre (1898), pp. 200—1, 207—9; Rolin, Le Droit moderne de la guerre (1920), vol. i, p. 429; Fauchille, Traite de droit international public (1921), vol. ii, pp. 210—11; Nys, op. cit., vol. iii, p. 108; Merignhac, Traite de droit public international (1912), vol. iii, p. 416; Von Liszt, Le Droit international (tr. by Gidel from 8th German ed. of 1913), pp. 326—7.
- 31 Lafiti, Effects of War on Property (1909), p. 11; Spaight, War Rights on Land (1911), p. 323.
- 32 (1902), p. 114.
- 33 (1929), Amendments No. 12 (1936), p. 72.
- 34 Field Manual 27—10, War Department, 1 October 1940, para. 301, repeating the substance of Art. 26, General Orders No. 100 of 1863.
- 35 Holland, The Laws of War on Land (1908), p. 53.
- 36 Ibid.; Wheaton, op. cit. (5th English ed. by Phillipson, 1916), p. 531.
giving a bond to keep the peace, the peace in this case being one imposed by international law and its breach accordingly constituting a violation of that law.
For the most part, no distinction is made by these authorities between a duty to refrain from acts endangering the occupant or intended to interfere with his military operations and the individual’s duty to comply with the existing municipal law of the occupied area and the measures adopted by the occupant in pursuance of his obligations under Article 43 of the Hague Regulations. Bordwell is a noteworthy exception. Certain acts, he states, such as attacks on troops and what we now refer to as sabotage, are violations of international law and are punishable as such by the occupant. Obedience is similarly owed to the occupant ‘acting as the territorial authority in carrying out the ordinary purposes of government, and not for his own belligerent purposes’. But ifhe acts in a third capacity, that is, in serving his own military interests alone, no obedience is owed to him. These distinctions appear to be excessively subtle, and the first and third aspects of the occupant’s function are virtually indistinguishable. Still, his formulation of the law does serve to indicate a useful distinction between measures taken by the occupant on his own behalf and those directed to the normal government of the occupied area without regard to the military advantage, other than the preservation of order, thereby accruing to him. The second category is outside the scope of this article, but it should be noted that its importance is lessening. To an increasing degree even such measures as rationing and price control in occupied areas are inspired by the military needs of the occupant, and deliberate violation of such legislation may be employed as a weapon of resistance against the occupant.
-  Guelle, Pricis des lois de la guerre sur terre (1884), vol. i, p. 130; Loening, ‘L’Administration dugouvernement-general de l’Alsace durant la guerre de 1870—1871 ’, in Revue de droit international et de
-  InternationalLaw. ChieflyasInterpretedandAppliedbytheUnitedStates (2ndrev.ed., 1945),vol.iii, pp. 1898—9. See Wheaton, op. cit. (5th English ed. by Phillipson, 1916), p. 531, for a criticismof the practical utility of the oath.
-  To ‘take all the measures in his power to restore, and ensure, as far as possible, public order andsafety’.
-  The Law of War between Belligerents (1908), pp. 299—302. Professor Oppenheim criticizedBordwell’s theory concerning the occupant as ‘territorial authority’ on the basis that when the occupantacts in this capacity, the obedience of which he incidentally receives the benefit is actually directed tothe inhabitants’ own laws and to their displaced government (‘The Legal Relations between anOccupying Power and the Inhabitants’, in Law Quarterly Review, 33 (1917), p. 366).
-  It was so used in occupied Czechoslovakia during the Second World War (Four Fighting Years(‘Published on Behalf of the Czechoslovak Ministry of Foreign Affairs (Department of Information)’,(1943), p. 121). As the occupying Power, under Art. 55 of the Geneva Civilians Convention of 1949,has the ‘duty of ensuring the food and medical supplies of the population’, deliberate attempts to keepsuch articles from the market may constitute an additional drain on the resources of the occupant andmay thus be used as a weapon of resistance.