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U.S. Marine Corps - Small Wars Manual (1940 Edition)




General considerations		13-24
What laws apply			13-25

13-24. General considerations.-The history of our Government indicates that we have occupied territory and established complete military control over such territory in time of peace as well as in time of war. If war has been declared, the establishment of a military government over the territory of the enemy occupied by our forces gives rise to very few questions. However, when military government is established over a foreign sovereign state or a portion thereof, without Congress declaring war, that is, when the native inhabitants of the country occupied are not considered enemies, it brings up the question of whether or not the laws of war can be legally applied. Such situations have presented themselves in the past and will probably present themselves in the future. They arise from the policies of our Government which dictate what our attitude should be toward assisting our neighbors in maintaining peace and order and in protecting the personal and property rights of our own and other foreign nationals. When we intervene in such cases, our action will always appear to many, especially those of the country concerned, as a quasihostile act and they will be ready to protest and criticize the conduct of the military government in all its functions. If, as we are taught, a military governor, even in time of war, should be careful to make his government humane, liberal, and just, because of the undesirability of making a return to peace difficult, how much more this principle must apply when there is no war.

13-25. What laws apply.-If the commander of the force of occupation establishes a military government and there is no war, what laws can he apply? He cannot apply the laws of our own country in the occupied territory and he cannot accept and enforce on the laws of the occupied territory. Our own constitution cannot be made to apply to a foreign territory, and the existing laws in the occupied territory manifestly will contain no provisions which will guarantee the security of the forces of occupation, their installations and material. The fact remains that the commander must govern and he must utilize a military form of control. Therefore, he will be justified in adopting any reasonable measures necessary to carry out the task or mission that has been assigned him. Whether his government has declared war is no concern of his - that is a diplomatic and international move over which he has no control. The very nature of his mission demands that he must have absolute power-War Power. However, as a matter of policy, the more rigorous war powers should not be enforced. Contributions, requisitions, treatment of war traitors, spies, etc., should not be more rigorous than absolute necessity demands for self-protection. The commander's policy should be to enforce the laws of war but only to such extent as is absolutely necessary to accomplish his task.

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