Posted by New Kid on September 25, 1998 at 13:07:09:
In Reply to: Re: posted by Two Cities on September 24, 1998 at 18:27:14:
: Nevertheless. If it is only occupation, and not
formalized conquest and absorption, the occupying force should to whatever extent practiable, conform to the underlying law.
The Lieber Code
Washington, D.C., April 24, 1863
Instructions for the Government of Armies of the United States in the Field by Order of the Secretary of War:
Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority.
Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity—virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities 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 the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations.
All civil and penal law shall continue to take its usual course in the enemy's places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government—legislative, executive, or administrative—whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader.
Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government.
Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only: their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.
The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government; but the conquering or occupying power usually recognizes them as temporarily accredited to itself.
Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations.
This is Lincoln's rules of war issued as General Orders 100. The excerpt's of the modern version are found at the URL listed below.
[AFM = U.S. Army Field Manual]
Look for operative words like 'necessity', 'HR' [House Resolution], 'obedience', etc... In effect, the civil laws of the occupying territory will remain in effect as long as they don't interfere with the object of the occupying army. At this point the occupying army has the authority to alter, suspend, or revise the existing laws of the inhabitants.
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