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Volume III · Page 961
| that a true state of war — and hence belligerent occupation — no longer exists within the meaning of international law."¹ |
| __________ |
| "Through the subjugation of Germany the
outcome of the war has been decided in the most definite manner possible. One
of the prerogatives of the Allies resulting from the subjugation is the right
to occupy German territory at their discretion. This occupation is, both
legally and factually, fundamentally different from the belligerent occupation
contemplated in the Hague Regulations, as can be seen from the following
observations. "The provisions of the Hague Regulations restricting the rights of an occupant refer to a belligerent who, favored by the changing fortunes of war, actually exercises military authority over enemy territory and thereby prevents the legitimate sovereign — who remains the legitimate sovereign — from exercising his full authority. The Regulations draw important legal conclusions from the fact that the legitimate sovereign may at any moment himself be favored by the changing fortunes of war, reconquer the territory, and put an end to the occupation. 'The occupation applies only to territory where such authority (i.e., the military authority of the hostile state) is established and can be exercised' (Art. 42, 2). In other words, the Hague Regulations think of an occupation which is a phase of an as yet undecided war. Until 7 May 1945, the Allies were belligerent occupants in the then occupied parts of Germany, and their rights and duties were circumscribed by the respective provisions of the Hague Regulations. As a result of the subjugation of Germany, the legal character of the occupation of German territory was drastically changed."² |
| The view expressed by the two authorities cited appears to have the support of the International Military Tribunal judgment in the case against Goering, et al. In that case the defendants contended that Germany was not bound by the rules of land warfare in occupied territory because Germany had completely subjugated those countries and incorporated them into the German Reich. The Tribunal refers to the "doctrine of subjugation, dependent as it is upon military conquest," and holds that it is unnecessary to decide whether the doctrine has any application where the subjugation is the result of the crime of aggressive war. The reason given is significant. The Tribunal said: |
¹ Alwyn V. Freeman, "War Crimes by Enemy Nationals Administering Justice in Occupied Territory," The American Journal of International Law, XLI, July 1947, 605.
² John H. E. Fried, "Transfer of Civilian Manpower from Occupied Territory,'' The American Journal of International Law, XL, April 1946, 326-327.
