CO885-(13-15) — Page 728

2795.

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PUBLIC RECORD OFFICE

།་།།་།་།།

C.O.

Reference :-

885

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

P.U.S.,

No. 10A

(SOUTH AFRICA.)

JUDGE ADVOCATE-GENERAL to WAR OFFICE.

Minute on the Proclamation of the Orange Free State.

I-GENERAL LAW.

Judge-Advocate General's Office,

January 19, 1900.

THERE must be an effective occupation in order to constitute "military occupa- of any portion of the enemy's country. The test of the

effectiveness is an exclusive possession.

tion" by an invading army

Authorities used for this State- ment of law are :--

1. Calvo, Droit International, Vol. IV., Sec. 2166, et seq.

2. Hall, International Law, Chapter "Military occupation."

3. Heffter, Droit International (translated by Bergsen), Sec. 131. "Manual of Military Law, 1899."

See also Sir H. Maine on International Law, pages 178–179.

"L'occupation s'étend à toutes les parties du territoire dont l'armée ennemie est réellement et matériellement maitresse mais pas au delà. La possession doit tou- jours être effective: une occupation fictive n'existe pas, n'est pas reconnue en droit des gens."

p.

300.

Riviez "Droit de Gens," Paris, 1896, Vol. II., Admitting that the authority of the regular Govern- ment is thus supplanted by that of the invading army, the rule imposed is that of the customs of war. By these customs the interference is usually limited to such matters as concern the safety of the invading army, and the success of its operations. The right of requisition and of contribution can also be exercised. The power of punishment of all offences connected with the army and its operations, and committed by the inhabitants is freely exercised, but the greatest leniency is practised consistent with the safety of the ariny, and it is usual to leave to the ordinary tribunals the punishment of ordinary offences. Indeed, as a rule the occupying Power respects existing administration and judicial institutions. however, impossible to set bounds to the demands of military necessity.

It is,

A simple military occupation of the enemy's country must not be confused with a definite possession by conquest. As long as the war continues there is no such definite possession. The copy proclamation of the Free State sent here does not proclaim annexation and incorporation as stated in the minutes of General Ardagh. Perhaps there is another proclamation.

II. THE SPECIAL QUESTIONS RAISED BY THE COLONIAL OFFICE.

✰

(a.) As regards paragraph 3 (e) of the proclamation of the Orange Free State submitted. In his International Law, Hall, in section 179, states the conditions neces- sary for belligerents to possess the condition of being recognized as legitimate com- batants. He draws a distinction between large bodies of men and men acting in small bodies. Large bodies, he says, which do not possess the full marks of a militia must belong to one of two categories: they must either form part of the permanent forces of the State or else they must consist in a part of the unorganized population rising in arms in the face of the invader. As regards men acting in small bodies, he gives them the right of legitimate combatants if they are distinguished by sufficient marks.. I think, therefore, the proclamation goes too far, and section 3 (e) would only be applicable to offensive action against the occupying army on the part of individual inhabitants.

I may add that Kent, in his work on International Law, p. 224, says that if subjects confine themselves to simple defence, they are to be considered as acting under the orders of the State, and are entitled to be treated as lawful enemies.

(b.) As regards section 9 of the proclamation, I do not find any justification in the books for such expulsion during an occupation of this character. It seems also incon- sistent with section 8 of the same proclamation which gives immunity to all inhabitants

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