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Civil affairs 1958

Civil affairs 1958

Cover page
This annotated casebook is designed for use in conjunction with Department of the Army Field Manual 27-10, The Law of Land Warfare, July 1956.
TABLE OF CONTENTS
 
-PAGE Table of Cases ............................................. iii -v PART I -AN INTRODUCTION
1.      Scope of the course ............................... 1
 
2.      The law of belligerent occupation ................. 1
 
3.      Evidence of the law of belligerent occupation; the legal status of F'M 27-10...................b.....eb 2
4.      The Hague Conventions of 1907 and the Geneva Con- ventions of 1949; binding upon whom ............... 3
PART I1 -AN UNDERSTANDING OF TERMS
1.     What is a military government? . . ..... . ....... . ....

2.      What is a civil affairs administration? ...........
 
PA#r III -THE ESTABLISHMENT OF AN ADMINISTRATION FOR OCCUPIED AREAS
1.      Its importance to commanders ......................
 
2.      Its importance to judge advocates .................
 
3.      Its importance to generations of future Americans..
4.      Its legal basis
........................b.....bb...
 
Pm IV -THE LAW OF BELLIGERENT OCCUPATION: COP.IIMENCm AND TrnINATION
1.      The commencement; the occupation of territory .....
2.      The termination ...................................
 
PART V -THE STATUS OF OCCUPIED TEERITORP; ITS INWLBITANTS; ITS LAWS
1.      Sovereignty and other considerations ..,...........

2.      The inhabitants of occupied territory; allegiance
and duty ..........................................
 
3.      Application of existing laws ......................
 
PAFti' VI -TRE MILITARY GOVERNOR; LEGISLATIVE AUTHORITY;
corns
1.      The Military Governor; the President1 s alter ego.. .
2.      Occupation laws, civil and criminal ...............
 
3.      Public officials, judges, and local courts ........
 
4.     
Occupation courts .................................
 
.PAGE
 
PAFU' VII .PROPERTY AND PROCURENENI' IN OCCUPIED TERRITORY
 
1. Property generally ................................
 
2. The basic discrimination; public vs. private ......
3.
Public property ...................................
 

4.
Private property ..................................
 

5.
Procurement of services ...........................
 


Pm VIII .PUBLIC FINANCE
1.
Taxes .............................................
 

2.
Customs duties ....................................
 


3 . Contributions .....................................
 
4.
Currency ..........................................
 

5.
State debts .......................................
 


1.
Civil matters .....................................
 

2.
Criminal matters ..................................
 


PAKI' X .UNCOEJVE?JTIONAL AND IWULAR COMBATANTS
1.
General ...........................................
 

2.
Unconventional combatants .........................
 


3. Irregular combatants; partisans. and guerrillas ...
TABLE OF CASES
 
Aboitiz & Co. v. Price ........................................ 102. 108
 
Acheson v.Kuniyuka ........................................... 42
 
Acheson v.Wohlmuth ........................................... 42
 
Agate v .Soc. Electrica Coloniale Italian0 ...................~ 97
 
Alvarez Y .Sanchez v.United States ........................... 55
 
Anglo-Chinese Shipping Co .v . United States ................... 95
 
Bank of Ethiopia v. National Bank of Egypt and Liguori ........ 34
 
Belgian State v . Botte ........................................ 49
 
Burke v.Miltenberger ......................................... 36
 
Callwood v . Virgin Islands National Bank ...................... 54
 
Cobb v . United States ......................................... 42
 
Coble v .United States ........................................ 53
 
Coleman v. Tennessee ......................................46. 48. 49. 56
 
Criminal Files (~reece) Case ................................e. 111
 
Cross v.Harrison ............................................. 36
 
Dalldorf and Others v .The Director of Prosecutions ........... 54
 
DeAlwis v. DeAlwis ............................................ 51
 
De Camera v.Brooke ........................................... 96
 
DIEscury v .Levensoerzekerings-Naatschappij Utrecht Ltd ........ 45
 
Dooley v.United States ....................................... 101
 
Double Jeopardy Case .......................................... 71
 
Dow v . Johnson ............................................49. 50. 56
 
Eisner v. United States ....................................... 104
 
Ex Farte Quirin ............................................... 114
 
Fleming v.Page .................................. 37. 41. 42. 43. 44. 101
 
FeyeraMv .McGrath .......................................... 43
 
French State v.Establissments Monmousseau .................... 74
 
Gates v .Goodloe .............................................. 108
 
Gibbs et a1. v .Rodriguez et a1................................ 107
 
Grapeshot. The ................................................ 72
 
Haw Pia v. China Banking Corp ................................105 107. 108
 
Hefferman v . Porter ........................................... 110
 
Hirota v.MacArthur ......................................... 72. 95
 
Hoffman Case .................................................. 120
 
Holdowanskl v. Holdowanski .................................... 51
 
Housman v.Koninklijke Rotterdamse Lloyd ...................... 46
 
In re Directors of the Amsterdamse Ballast Maatschappij ....... 85
 
In re Esau .................................................... 84
 
In re Fiebig .................................................. 85
 
In re Hoffman ................................................. 119
 
In re Krauch and Others ....................................... 85
 
In re Van Lewinski (called Von ans stein) ...................... 120
 
In re List and Others ................................... 29. 31. 116. 120
 
In re Lo Dolce ................................................ 48
 
PAGE
-

In re Policeman Vollema .......................................
 
In re Martin ...................................................
 
In re Rieger ..................................................
 
In re S .S.Member Ahlbrecht ..................................
 
In re Wuistz ..................................................
 
Johansen v.Gross .............................................
 
Johnson v. Eisentrager ........................................
 
Juragua Iron Co . v. United States .............................
 
Keely v .Sanders ..............................................
 
Kent Jewelry Co . v .Kiefer .....................................
 
Kobylinsky v.Banco Di Chivari ................................
 
Kochanski v.Kochanska ........................................
 
Krupp Trial ...................................................
 
(olive Oil case) ..........................................

L&N
Lamar. Executer v. Browne .....................................
 
Landwehr v .Director of Prosecutions ..........................
 
Lasere v .Rochereau ...........................................
 
Latza Case ....................................................
 
Liaabue v . Finanze ............................................

-
MacLeod v. United States ...................................... 28
 
Madsen v .Kinsella ......................... 9. 18. 28. 49. 52. 63. 67. 68
 
Madsen v .Overholser ........................................... 67
 
Magri v.Di Marco ............................................. 97
 
Mechanics and Traders Bank v. Union Bank ...................... 67
 
Mitchell v . Harmony ........................................... 95. 96
 
Mrs. Alexander's Cotton ....................................... 43. 84
 
-
N v . Belgian State ............................................ 51
 
41. 49
Neely v. Henkel .............................................*..
 
N.V. De Bataafsche Petroleum Maatschappli & Ors.v .The War
Damage Commission ........................................ 77. 84
 
Ochoa v. Hernandez ............................................ 52. 53
 
Pennywit v . Eaton .............................................. 67
 
Peralta v.Director of Frisons ................................ 110. 111
 
Psrez v .Brownell .............................................
 
Planters Bank v.Union Bank ...................................
 
Porter
v . Freudenberg .........................................
 
Public Prosecutor v .Latza and Others .........................
 
Public Prosecutor v . Lian .....................................
 
Randsfjordsbrulcet and Jevnaker Kome v .Viul Tresliperi .....
Re ~ondarelli .................................................
 
Reid v. Covert ................................................
 
Santiago v. Nogueras ..........................................
 
Schooner Exchange v .McFaddon .................................
 
Seery v . United States ........................................
 
Soc.Timber. Sac. Zeta. Soc.Ombla v.Ministeri Esteri a Tesoro
Soviet Requisition (~ustria) Case .............................
 
Standard Vacuum Oil Co. v . United States ......................
 
State of Netherlands v .Federal Reserve Bank of New Pork ...... State of Netherlands
v .Jessen ....................*......**..*
 
Statens Jorlovsudvalg v . Pedersen .............................
 
Tan Tuan et a1 . V .Lucens Food Control Board ..................
 
Thirty Hogsheads of Sugar .....................................
 
Thorington v. Smith ............................................
 
Trial of Otto Skorzeny and Others .............................
 
United States v .Caltex (philippines) Inc . et a1 ...............
 
United States v. Reiter .......................................
 
United States v. Rice .........................................
 
United States v. Russell ......................................
 
United States v .Schultz ......................................
 
United States v.Sinigar ......................................
 
United States v . Ushi Shiroma .................................
 
Unlted States v . Wilson .......................................
 
Vermilya-Brown Co. v. Connell .................................
 
Vitse v. Brasser and the Dutch State ..........................
 
V/O Sovfracht v. N.V. Gebr .Van Udens Scheepvaart .............
 
Weiss v .Weiss ................................................
 
Wilson v.Jirard ..............................................
 
Wong Man On v. The Commonwealth ...............................
 
AN INTRODUCTION
 
1.
Sco~eof the course. This course is intended to identify and consider a variety of legal problems which the future administration of enemy oc- cupied territory may be expected to produce.

2.
me r e n t occu~ation. Rather than to be stated as a fact,


T it is to be questioned whether there is a law, as such, of belligerent oc­cupatioq. In the early centuries of man's existence the "lawn for the conquered simply had been the will of the conqueror. The conduct of the wars of the last two centuries, however, seems to indicate, albeit incon- clusively, that the civilized nations of the world have been willing to temper the exercise of their complete power as conquerors in the interest of the cause of humanity and the dictates of public conscience. As nations successively and consistently chose to limit their power, in certain re- spects, in favor of the rights of inhabitants of occupied territory, so there developed, in those certain respects, customs which civilized nations have respected and recognized as obligatory upon them. Thus in those areas of state practice where yesterday's customs are responsive to the purposes for which war is waged and territory is occupied today, there can be said to be law, i.e., law which delineates not the power of a conqueror but rather his rights, duties, and authority.
The development of a state practice into a custom and thence into law is, to be sure, an unhurried process. For this reason there was little law applicable to a belligerent occupation at the turn of the 19th cen- tury. To fill the void, the civilized nations of the world resorted 30 multilateral conventions he Hague Conventions of 1907 and the Geneva Conventions of 1949 are the two multilateral conventions with which we are now concerned). Thus, a search for the law of belligerent occupation requires reference not only to customary international law but to con- ventional international law as well. The two sources are not, of course, wholly separable, for many provisions of the multilateral: conventions mentioned represent, and were so intended, agreed restatements of accepted customs. But if one understands law to mean a precise rule of conduct, a deviation from which is wrong, there is still to be considered the question whether the provisions of these conventions amount to law. Where it is
rovided, for example, that enemy private property cannot be confiscated Part. 46, HR), it would seem that there is law. But where it is provided that a belligerent occupant shall respect, unless absolutelv urevented, the local laws of the country occupied (art. 43, HR); that the quantum of requisitions shall be in ~rouortion to the resources of the country (art. 52, HR); and that taxes are to be collected, insofar as is ~ossible, in accordance with existing rules of assessment and incidence (art. 48, HR), to illustrate, it may be unrealistic to classify such vague and ab- stract provisions as law, having both a force and a binding effect. It may be more correct to label them what they are, principles and standards, susceptible of producing law only to the extent that civilized nations interpret and apply them uniformly. To date, evidence of such uniformity is lacking. This may be explained, it is believed, by the fact that each new war has involved ideological, sociological and technological con­siderations unlike those of preceding wars. Understandably, with se- curity interests paramount, no nation is willing to commit itself today as to its conduct tomorrow in any but the most general of terms. In the' last analysis, therefore, it may be correct to conclude that the law of belligerent occupation is derived more from the post-bellurn acts and deeds of conquerors than from pre-bellum conventions, See, Sutherland, Constitutional Powers and World Affairs 80 (1919), McDougal and Feliciano, International Coercion and World Public Order: The General Princi~lesof the Law of War, 67 Yale Law J. 809 (1958).
Stone in his book, Legal Controls of International Conflict (1954), at p. 727, characterizes the law of belligerent occupation as a kind of "legal paradise." His point is that it is unrealistic to think that the niyriad of challenging questions bound to be raised in a future global war may be answered on the basis of propositions accepted at the turn of the 19th century. Do you agree?
FM 27-10, 18 July 1956, is entitled, nThe Law of Land Warfare Its predecessor, dated 1October 1940, was entitled, "The Rules of Land War­fare.I1 What significance, if any, do you attach to this change? See Fratcher, The New Law of Land Warfare, 22 Missouri Law Rev. 143 (1957j. Von Glabn, The Occuuation of Enew Terrltom 19 (1957).
3. Evidence of the law of belligerent occuuatioo.: the legal status of F1.i 27-10.
-Read: Pars. 1, 7, and 14, FM 27-10.
NOTE
 
Article 1, Hague Convention No. IV, Respecting the Laws and Customs of War on Land, 18 October 1907, requires the contracting powers to in- struct their armed land forces in the provisions of the Hague Regulations. FM 27-10 has then a legal basis in international law, in that is is issued in compliance with the Hague Regulations and the Geneva Conventions. This is not to suggest, of course, that mere publicatioqof FM 27-10 operates to discharge that requirement. Army Regulations 350-216, 19 December 1956, requires instruction be given in the Geneva Conventions of 1949; no mention is made of the Hague Regulations, however.
As a matter of historical interest, the United States first published a summary of the rules of land warfare in 1863 with the issuance of General Orders No. 100, entitled, "Instructions for the Government of Armies of the United States in the Field," the so-called Lieber code.
It has been said that FM 27-10 has the binding force of a military order on menbers of the Army of the United States. Fratcher, The New Law of Land Warfare, 22 Missouri Law Rev. 143, 144 (1958). Do you agree? If you do, then is not the question whether there efists a law, as such, of belligerent occupation made moot?
4. The Hague Conventions of 1907 and the Geneva Conventions of 1949; bindinn ulson whom?
-Resd: Foreword and paragraph 5, FM 27-10.
-NOTE
By early 1957 a total of fifty-eight nations had accepted the Geneva Civilians Convention (GC), the convention with which this course will be particularly concerned. For a list of the fifty-eight, see,Von Glahn, The Occupation of hemv Territory L7 (1957). Since then, East Germany, North Korea, and communist Viet-Nam have deposited adherences to (with reservations), and communist China (also with reservations) and the United Kingdom have ratified, all four Geneva Conventions. See, 37 Dept. State Bulletin 861, Nov. 1957.
Suppose a war (or police action), were to involve a number of states, all but one of which had ratified, or adhered to, the Hague Conventions and the Geneva Conventions. Would the fact that one party to the conflict had not accepted those conventions operate to excuse the other states from complying with the provisions of the conventions? See, article 2, Hague Convention No. IV and par. 8c, F'M 27-10. But see, Preamble to FIR and article 158, GC (pr. 6, F'M 27-10), and K~DDTrial, 10 Law Reports of Trials of War Criminals 133 (1949). Was this not the situation in Korea in 1950? See, Baxter, The Role of Law in Modern War, Proceedings of the American Society of Int. Law, 90, 96 (1953).
Do the Geneva Conventions have any application in a civil war? Do the Hague Regulations? See, par. 11, F'M 27-10.
Is the law of belligerent occupation applicable withfn liberated territory? See, Tan Tuan et al, v. Lucena Food Control Boar4 (philippines 1949), Int'l Law Rep., 1951, Case No. 181 (u.s. liberation of Philippines during WW 11). Do the Hague Regulations apply? Do the Geneva Conventions
apply?
AN UEJDERSTANDING OF TERMS
1. What is a military government?
a. Read: Pars. 12, 362, and 368, FM 27-10.
be COMBINED DIRECTIVE FOR MILITARY GOVERNMENT IN GERMANY
 PRIOR TO DEFEBT OR SURRF;NDER
 
w2e Military government will be established and will extend over
 all parts of Germany, including Austria, progressively as the forces
 under your command capture German territory. Your rights in Germany
 prior to unconditional surrender or German defeat will be those of an
 occupying power.
 
"3. a. By virtue of your position you are clothed with supreme
 legislative, executive, and judicial authority and power in the areas
 occupied by forces under your command. This authority will be broadly
 construed and includes authority to take all measures deemed by you
 necessary, desirable or appropriate in relation to the exigencies of
 military operations and the objectives of a firm military government.
 
"b. You are authorized at your discretion, to delegate the
'authority herein granted to you in whole or in part to members of your command, and further to authorize them at their discretion to make ap- propriate subdelegations. You are further authorized to appoint members of your command as Military Governors of such territory or areas as you may determine.
nc. You are authorized to establish such military courts for
 the control of the population of the occupied areas as may seem to you
 desirable, and to establish appropriate regulations regarding their
 jurisdiction and powers.
 
Appendix A
POLITICAL GUIDE
"1. The administration shall be firm. It will at the same time be just and humane with respect to the civilian population so far as con- sistent with strict military requirements. YGU w5U strongly discourage fraternization between Allied troops and the German officials and popu­lation. It should be made clear to the local population that military occupation is intended; (1) to aid military operations; (2) to destroy Nazism-Fascism and the Nazi Hierarchy; (3) to maintain and preserve law and order; and (4) to restore normal conditions among the civilian popu- lation as soon as possible, insofar as such conditions will not interfere with military operations.
n4. You will take steps to prevent the operation of all Nazi laws which discriminate on the basis of race, color, or creed or political opinions. All persons who were detained or placed in custody by the Nazis on such grounds should be released subject to requirements of security and interests of the individual concerned.
n5. a, The operation of the criminal and civil courts of the Ger- man Reich will be suspended. However, at the earliest possible moment you should permit their functioning under such regulation, supervision, and control as you may determine. The operation of politically objec- tionable courts, e.g., People's courts, will be permanently suspended with a view to eventual abolition. All Nazi elements will be eliminated from the judiciary.
"6. The replacement of local Government officials who may be re­moved will rest with the Supreme Commander who will decide whether the functioning of the military government is better served by the appointment of officers of the occupation forces or by the use of the services of Germans. Military Government will be effected as a general principle through indirect rule. The principal link for this indirect rule should be at the Bezirk or Kreis level; controls at higher levels will be in- serted at your discretion. Subject to any necessary dismissals, local officials should be instructed to continue to carry out their duties, No actual appointment of Germans to important posts will be made until it has been approved by the Combined Chiefs of Staff. It should be made clear to any German, after eventual appointment to an important post, and to all other Governmental officials and employees, that their con- tinued employment is solely on the basis of satisfactory performance and behavior. In general the entire Nazi leadership will be removed from any post of authority and no pemnent member of the German General Staff nor of the Nazi Hierarchy will occupy any important Governmental or Civil position. The German Supreme Command and General Staff will be disbanded in such a way as will insure thatits possible resuscitation later will be made as difficult as possible.
"7. Subject to the provisions of paragraph 10, and to the extent that military interests are not prejudiced, freedom of speech and press, and of religious worship should be permitted. Consistent with military necessity, all religious institutions shall be respected and all efforts will be made to preserve historical archives, classical monuments, and objects of art.
nlO, a. The propagation of Nazi doctrines and propaganda in any form shall be prohibited, Guidance on German education and schools will be given to you in a se.parate directive.
"be No political activity of any kind shall be countenanced unless authorized by you. Unless you deem otherwise, it is desirable that neither political personalities nor organized political groups, shall have any part in determining the policies of the military adminis- tration, It is essential to avoid any commitments to, or negotiations with, any political elements. German political leaders in exile shall have no part in the administration,
"c. You will institute such censorship and control of Qress, printing, publications, and the dissemination of news or information by the above means and by mail, radio, telephone, and cable or other means as you consider necessary in the interests of military security and in- telligence of all kinds and to carry out the principles laid down in this directive.
Appendix C
 
REVISED FINBNCIQLGUIDE FOR GEXMMlY
"6. Upon entering the area, you will take the following steps and
 will put into effect only such further financial measures as you may
 deem to be necessary from a strictly military standpoint:
 
na. You will declare a general or limited moratorium if you deem such measure to be necessary. In particular, it may prove desirable to prevent foreclosures of mortgages and the exercise of similar remedies by creditors against individuals and small business enterprises.
nb, Banks should be placed under such control as deemed neces- sary bg you in order that adequate facilities for military needs may be provided and to insure that instructions and regulations issued bg military authorities will be fully complied with. Banks should be closed only long enough to introduce satisfactory control, to remove objectionable personnel, and to issue instructions for the determination of accounts to be blocked under paragraph e below. Ac soon as prac- ticable banks should be required to file reports listing assets, lia- bilities, and all accounts in excess of 25,000 marks.
nc. You will issue regulations prescribing the purposes for
 which credit may be extended and the terms and conditions governing the
 extension of credit. If banking facilities are not available you may
 establish such credits or make such loans as you deem necessary for
 essential economic activities. These will be restricted to mark credits
 and loans.
 
"d. You will close all stock exchanges and similar.financia.1 institutions.
Pending determination of future disposition, all gold,
 foreign currencies, foreign securities,accounts in financial institutions,
 credits, valuable papers and all similar assets held by or on behalf of
 the following, will be impounded or blocked and will be used or otherwise
 dealt with only as permitted under licenses or other instructions which
 you may issue:
 
"1) German national, state, provincial, and local govern-
 ments, and agencies and instrumentalities thereof,
 
"10. The railways, postal, telegraph and telephone service, radio and all government monopolies will be placed under your control and the3.r revenues made available to the military government.
rill. You will, consistent with international custom and usage, maintain existing tax laws, except that discriminatory taxes introduced under the Nazi regime will be abolished. Prompt action should be taken to maintain the inflow of revenue at the highest possible level. You will resume service on the public debt as soon as military and financial conditions permit.
NOTE
This directive was approved by the Combined Chiefs of Staff and transmitted by them to the Supreme Commander, Allied Expeditionary Force, on April 28, 1944.
Do you consider the following definition of a military government to be a correct one: "Military Government connotes a situation where the commander of the armed forces rules a territory from which the enemy armed forces have been expelled? Cf., par. 12, FM 27-10. But cf., Winthropls Militam Law and Precedents 800 (R.eprint 1920), quoted at fn. 13 in Madsen v. Kinsella, pagel8, jn.fr%.
Here the student should begin to consider the following questions:
Is military government a form of administration for an occupied territory having its legal basis in the law of belligerent occupation?
If so, may a military government validly continue to function in territory no longer subject to the law of belligerent occupation, i.e., subsequent to the coming into force of an armistrice or a treaty of peace?
Do we have today a military government in Guam?
In the Ryukyu Islands?
Generally, what is the relationship of the law of belligerent occu­pation to a military government?
These questions should be answerable later on the basis of the ma­terial contained in Part I11 of this book.
2. What is a civil affairs administration?
a. Read: Par. 354, I?M      27-10,
b.     DIRECTIVES AND AGWS ON CIVIL BFFBIRS IN FRANCE
 August 25, 1944
 
"1. As a result of the discussions between American, British and French representatives, agreement has been reached on the practical arrangements for civil affairs administration in Continental France.
"4. In connection with your rights and powers to use or requisition war materials and other property, information has come to hand indicating that the Germans customarily requisition all usable supplies in any area before abandoning it. In exercising your right to use such supplies you should, so far as military necessity permits, give the greatest con- sideration to the economic interests of the civilian population and, where possible, leave at the disposal of the French authorities such transport material, food supplies and building materials as have been requisitioned by the German armies or handed over to them under duress, and which are not needed by you in connection with hlitary operations.
MFMORBNDUM NO. 1FlELATING TO ADMINISTRATIVE AND JURISDICTIONAL QUESTIONS
nl. In areas in which military operations take place the Supreme Allied Commander will possess the necessary authority to ensure that all measures are taken wfiich in his judgment are essential for the success- fhl conduct of his operations. Arrangements designed to carry out this purpose are set forth in the following Brticles.
2. (i) Liberated French Continental territory will be divided into two zones: a forward zone and an interior %one.
n(ii) The forward zone will consist of the areas affected by active military operations; the boundary between the forward Bone and the interior zone will be fixed in accordance with the provisions of paragraph (iv) below.
"(iii) The interior zone will include all other regions in the liberated territory, whether or not they have previously formed part of the forward zone. In certain cases, having regard to the exigencies of operations, military zonesmay be created within the interior zone in accordance with the provisions of Article 5 (ii) below.
"(iv) The Delegate referred to in Article 3 below will effect delimitation of the zones in accordance with French law in such a manner as to meet the requirements stated by the Supreme Allied Commander.
"3. (i) In accordance with Article 1of the ordinance made by the French Committee of National Liberation on March 14, 1944 a Delegate will be appointed for the present theater of operations. Other Delegates may be appointed in accordance with the development of operations.
"4. In the forward zone: (i) The Delegate will take, in accordance with French law, the measures deemed necessary by the Supreme Allied Commander to give effect to the provisions of Article 1, and in particular will issue regulations and make appointments in and removals from the public services.
"(ii) In emergencies affecting military operations or where no French authority is in a position to put into effect the measures deemed necessary by the Supreme Allied Commander under paragraph (i) of this Article, the latter may, as a temporary and exceptional measure, take such measures as are required by military necessity.
n(iii) At the request of the Supreme Allied Commander, the French Military Delegate will take such action under his powers under the state of siege in accordance with French law as may be necessary.
"5. (i) In the interior zone the conduct of the administration of the territory and responsibility therefor including the powers under the state of siege, will be entirely a matter for the French authorities. Special arrangements will be made between the competent French authorities and the Supreme Allied Commander at the latter's request in order that all measures may be taken which the latter considers necessary for the conduct of military operations.
"(ii) Moreover, in accordance with Article 2 (iii) and (iv), certain portions of the interior zone (known as military zones) may be subjected to a special regime on account of their vital military importance; for example, ports, fortified naval areas, aerodromes, and troop con- centration areas. In such zones, the Supreme Allied Commander is given the right to take, or to cause the services in charge of installations of
military importance to take, all measures considered by him to be neces-
sary for the conduct cf operations, and, in particular, to assure the
security and efficient operation of such installations. Consistent with these provisions, the conduct of the territorial administration and the responsibility therefor will nevertheless be solely a matter for the French authorities.
"7. (i) Members of the French Armed Forces serving in French units with the Allied Forces in French territory will come under the exclusive jurisdiction of the French courts.
"(ii) Persons who are subject to the exclusive jurisdiction of the French authorities may, in the absence of such authorities, be ar- rested by the Allied Military Police and detained by them until they can be handed over to the competent French authorities.
"8. (i) In the exercise of jurisdiction over civilians, the Dele- gate will make the necessary arrangements for ensuring the speedy trial, in coqetent French courts in the vicinity, of such civilians as are alleged to havs committed offenses against the persons, property or security of the Allied Forces.
"(ii) For this purpose the Military Delegate will establish military tribunals as laid down in the ordinance of June 6, 1944 and ensure tneir effective operation. The Supreme Allied Commander will designate the military formations to which he wishes a military tribunal to be attached. The Military Delegate will immediately take the neces- sary measures to allocate these tribunals accordingly. The Supreme Allied Commander will be kept informed of the result of the proce'edings.
"9. (i) Without prejudice to the provisions of Article 13, Allied service courts and authorities will have exclusive jurisdiction over all members of their respective forces.
l1(ii) British or American nationals not' belonging to such forces who are employed by or who accompany those forces, and are subject to Allied Naval, Military, or Air Force law, will for this purpose be regarded as members of the Allied Forces. The same will apply to such persons, if possessing the nationality of another Allied state provided that they were not first recruited in any French territory. If they were so recruited they will be subject to French jurisdiction in the absence of other arrangements between the authorities of their state and the French authori ti8s.
l1(iii) The Allied military authorities will keep the French authorities informed of the result of proceedings taken against members of the Allied Forces charged with offenses against persons subject to the ordinary jurisdiction of the French courts.
"10. Persons who, in accordance with Article 9, are subject to the exclusive jurisdiction of Allied service courts and authorities may how- ever be arrested by the French Police for offenses against French law, and detained until they can be handed over for disposal to the appro- priate Allied service authority. The procedure for handing over such persons will be a matter for local arrangements.
"11. A certificate signed by an Allied officer of field rank or its equivalent that the person to whom it refers belongs to one of the classes mentioned in Article 9 shall be conclusive.
"12. The necessary arrangements will be made between the Allied military authorities and the competent French authorities to provide machinery for such mutual assistance as may be required in making in- vestigations, collecting evidence, and ensuring the attendance of wit­nesses in relation to cases triable under Allied or French jurisdiction.
"13. Should circumstances require provision to be made for the ex- ercise of jurisdiction in civil matters over non-French members of the Allied Forces present in France, the Allied Governments concerned and the competent French authorities will consult together as to the measures to be adopted.
"14. (i) The Allied Forces, their members and organizations at- tached to them, will be exempt from all direct taxes, whether levied for the state or local authorities. This provision does not ap y to French nationals, nor, subject to the provisions of paragraph (iii P"below to foreigners whatsoever their nationality, resident in France and recruited by the Allied Forces on the spot.
"(ii) Articles imported by the Allied Forces or for their ac- count, or by members of those forces within the limit of their personal needs, or imported by Allied Forces or agencies for the purpose of free relief, will be exempt from customs duties and from all internal dues levied by the customs administration, subject to the provisions of para- graph (iii) below.
"(iii) The application of the above provisons, including any questions relating to the sale to the civilian population of imported
articles referred to in paragraph (ii) above, will form the subject of later negotiations, which, at the request of either party, may be ex­
tended to cover taxes which are not referred to in this article.
"15. The immunity from French jurisdiction and taxation resulting from Articles 9 and 14 will extend to such selected civilian officials and employees of the Allied Governments, present in France in furtherance of the purposes of the Allied Forces, as may from time to time be noti­fied by the Allied military authorities to the competent French authority.
"16. (i) The respective Allied authorities will establish claims commissions to examine and dispose of any claims for compensation for damage or injury preferred in Continental France against members of the Allied Forces concerned (other than members of the French Forces) ,ex­clusive of claims for damage or injury resulting from enemy action or operations against the enemy. These claims commissions will, to the greatest extent possible, deal with these claims in the same way and to the same extent as the competent French authorities would deal with claims growing out of damages or injury caused in similar circumstances by members of the French Armed Forces.
"(ii) The competent Allied and French authorities will later discuss and determine the detailed arrangements necessary for examining and disposing of the claims referred to in this Article.
"(iii) Nothing in this Article contained shall be deemed to prejudice any right which the French authorities, acting on behalf of French claimants, may have, under the relevant rules of international law, to present a claim through diplomatic channels in a case which has been dealt with in accordance with the foregoing provisions of this Article.
"17. (i) The Allied Forces may obtain, within the llmits of what is available, the supplies, facilities and services which they need for the common war effort.
"(ii) At the request of the Supreme Allied Commander, the French authorities will requisition, in accordance with French law (in particular as regards prices, wages, and forms of supplies, facilities end services which the Supreme Allied Commander determines are necessary for the military'needs of his command. However, in the ex­ceptional cases provided for in Article 4 (ii) above, the right of requisition is delegated to the Supreme Allied Commander, who will ex­ercise it in accordance with current French prices and wages.
"(iii) In order that the satisfaction of the local requirements of the Allied Armed Forces may have least possible disruptive effect on the economy of France, the Allied military authorities and the French authorities will consult together, whenever operations permit, as to the stores, supplies and labor which procurement agencies and indiGidual officers and men of the Allied Forces are permitted by the Supreme Allied Commander to obtain locally by requisition, purchase or hire. The Allied military authorities will place such restrictions as are agreed to be necessary on purchases whether by agencies or troops.
"(iv) The French and Allied military authorities shall jointly take the measures necessary to ensure that the provisions of this Article are carried out.
"18. Other questions arising as a result of the liberation of con­tinental French territory which are not dealt with in this memorandum shall form the subject of separate arrangements. Special arrangements will be made to secure the observation by the Allied Forces of the French regulations concerning the exchange of currency and export of capital and wlll be set out in an Appendix which will be attached to this memorandum.
MEMORANDUM NO. 2 RELATING TO CURRENCY
"1. The notes denominated in francs which have been printed for the needs of Allied forces in continental France, as well as the notes denominated in francs which will be printed in the future for the same purpose, will be issued by the Tresor Central Francais.
"2. The notes denominated in francs which have been printed for the requirements of the Allied forces in continental France and which have been placed at their disposal before the signature of this memorandum, will be considered as having been issued by the Tresor Central Francais.
n3. The Allied forces will retain in their possession the notes de- nominated in francs which have been placed at their disposal prior to the signature of this memorandum.
"6. Allied military authorities shall keep a record of use of franc notes placed at their disposal. French authorities shall be kept fully informed, and as regularly as practical, of all expenditures in these notes. A representative shall be specially appointed for this purpose by the Tresor Central Francais.
"7. The Allied forces will not introduce into continental France notes other than those which have been made available to them by the Tresor Central Francais. The notes of the Bank of France used in con- tinental France by the Allied forces will also be subject to the pro- visions of this memorandum. However, if it should become essential in the conduct of military operations to cause notes other than the French franc notes furnished hereunder to be used, such notes shall only be used by the Commander as an exceptional and temporary mehsure and after consultation with the French authorities.
"9. The financial arrangements which will be made with the French authorities in connection with the notes and coins dealt with in this memorandum and with the other costs arising out of operations or activi- ties in continental France shall be negotiated between the U.S. and French authorities on the one hand, and between the British and French authorities on the other.
General Eisenhower was authorized to enter into this agreement with the French Committee of National Liberation (a committee not recognized by the United States Government as the provisional government of France) , prior to the invasion of Europe. Similar agreements-were entered into with the Norwegian, Belgian, and Netherlands governments-in-exile.
Consider now the respects in which a military government and a civil affairs administration are alike, and the respects in which they differ.
Do they have the same legal basis?
Are they concerned with administering the same type of territory?
Are they both but temporary measures?
Is the law of belligerent occupation applicable to a civil affairs administration? Do the Hague Regulations and the Geneva Conventions apply to a civil affairs administration?
Is the distinguishing feature of military government the power to tell people what is law and what is not law and to put them in jail if they do not obey? See, Dfllard, Power and Persuasion: The Role of Military Government, 42 Yale Review 212, 219 (1953).
Do you consider the provisions of a civil affairs agreement to be analogbus to those of a status of forces agreement?
THX ESTBBLISHMENT OF AN ADMINISTRATION FOR OCCUPIED AREAS
1. Its im~ortance to commanders. The primary purpose, the main objec- tive, call it what you will, of military government is to support military operations in the field. Military government is therefore a command re- sponsibility. Specifically, an effective military government administra- tion can render that support by:
a.
Preserving law and order among the local populace with the result that behind-the-lines casualties and losses of, or damage to, military supplies and property are minimized.

b.
Controlling the movement of civilian personnel with the result that civilian interference with military movement, flow of supplies, reinforcements, etc., is reduced.

c.
Establishing health and sanitation controls, with the result that the possibilities of military casualties from diseases and epidemics are minimized.

d.
Re-establishing a friendly and cooperative local government with the result that some occupation troops can be released to field commanders and that a source of local supplies is obtained. See, par. 3a, FM 41-10, Civil Affairs Military Government O~erations, May 1957.


2.
Its imnortance to iud~e advocates. It is the stated policy of the United States so to conduct itself as to preclude allegations that it has violated or even acted in contravention of accepted principles of Inter- national Law concerned with the acts of a military occupant. See, par. 3b, FM 41-10, sunrq.

3.
Its imwrtance to generations of future Americans. A more subtle ob- jective of military government is to implant and foster the national policies of the United States. See, subpar. 3c, FM 41-10, supra.


" * * * In this connection, the view is oftirnes expressed andseri- ously argued, that we are dealing with a defeated enemy and that we need not over-trouble ourselves as to the treatment accorded. A mature re- flection, however, must convince even the most radical that the question involved is really not what is due the inhabitants of the defeated country, but what is owed to the victorious country by the army which represents it. An occupying army in a defeated country is making his- tory which is bound to be written. As that army conducts itself, so is the world largely to regard the country which it represents. If its army is dishonorable in its relations with a fallen foe and treats the population with injustice and subjects the people to a rule more harsh than is necessary for the preservation of order and the establishment of proper decorum and respect, that army and the country it represents are Wand to stand in disrepute before the civilized world. * * *n
Zxcerpt from American Military Government of Occupied Germany, 1918-20, a report of the officer in charge of Civil Affairs, Third Am and American Forces in Germany.
4. Its legal basis.
MALISEN v. KINSZLLA 343 U.S. 341 (1952)
MR. JUSTICE BUBTON delivered the opinion of the Court.
The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of $ 211 of the German Criminal Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction.
The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seek­ing her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the cotrrt which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. 93 F. Supp.
319. The Court of Appeals affirmed. 188 F.2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U.S. 865.
I. Petitioner's status in Germany.--Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the
United States Air Forces. In 1949, she resided there, with him, in a
house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for
those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany.
October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was ar­rested there by the United States Air Force Military Police. On the following day, before a "United States Military Government Court," she was charged with the murder of her husband in violation of $ 211 of the German Criminal Code. In February, 1950, she was tried by 'The United States Court of the Allied High Commission for Germany, Fourth Judicial District." That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control. The court adjudged her guilty and sen­tenced her to 15 years in the Federal Reformatory for Women at Alderson, West Virginia, or elsewhere as the Secretary of the Army might direct. In May, the llCourt of Appeals of the United States Courts of the Allied High Commission for Germany," composed of five United States civilians appointed by the Military Governor of the Area, affirmed the judgment but committed her to the custody of the Attorney General of the United States or his authorized representative. The Director of the United States Bureau of Prisons designated the Federal Reformatory for Women at Alderson, West Virginia, as the place for her confinement.
11. Both United States courts-martial. and United States Militam Commissions or tribunals in the nature of such commissions. had luris­diction in Germany in 1949-1950 to try persons in the status of ~etitioner on the charge against her.--Petitioner does not here att6ck the merits of her conviction nor does she claim that any nomilit& court of the United States or Germany had jurisdiction to try her.7 It is agreed by
7. There was no nonmilitary court of the United States in Germany. She enjoyed the immunity from the jurisdiction of all German courts which had been granted to nationals of the United Nations and to families of members
of the occupation forces. United States Military Government Law NO. 2,
Art. VI(l), 12 Fed. Reg. 2191, 2l92, Appendix, infra, p. 364; Allied High Commission, Law NO. 2, Art. 1, 14 Fed. Reg. 7457, Appendix, iarfrq, p. 369; Allied High Commission, Law NO. 13, -Art. 1, 15 Fed. Reg. 1056-1057, see Appendix, infrq, p. 370.
the parties to this proceeding that a regularly convened United States general court-martial would have had jurisdiction to try her. The United States, however, contends, and petitioner denies, that the United States Court of the Allied High Commission for Germany, which tried her, also had jurisdiction to do so. In other words, the United States contends that its courts-martial's jurisdiction was concurrent with that of its occupation courts, whereas petitioner contends that it was exclusive of that of its occupation courts.
The key to the issue is to be found in the history of United States military commissions8 and of United States occupation courts in the nature of such commissions. Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.9 They have
8.
"By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as au- thorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the,reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and cannot be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. . . . There heir] competency has been recog- nized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General. During the Civil War they were employed in several thousand cases; . . . ." Howland, Digest of Opinions of the Judge-Advocates General of the Army (1912), 1066-1067.

9.
In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents ( 2d ed. 1920 reprint), says at 831:


".. .it is those provisions of the Constitution which empower Congress to 'declare war' and 'raise armies,' and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal de- rives its original sanction. Its authority is thus the same as the au- thority for the making and waging of war and for the exercise of military government and martial law. The conrmission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. In some instances. . . Congress has specifically recognized the military commission as the proper war-court, and in terms provided for the trial thereby of certain offenses. In general, however, it has left it to the been called our comon-law war courts,1° They have taken many forms end borne many names,ll Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth. See In re Yamashitq, 327 U.S. 1, 18-23.
(continued) President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offenses not cognizable by court-martial.
"The occasion for the military commissiop arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offenses defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is re­quired. . ,, Hence, in our military law, the distinctive name of militam codssion has been adopted for the exclusively war-court, which . . .is essentially a distinct tribunal from the court-martial of the Articles of War."
-
For text of General Scott's General Order No. 20, as amended by General Order No. 287, September 17, 1847, authorizing the appointment of military commissions in Mexico, see Birkhimer, Military Government and Martial Law ( 2d ed. 1904), App. I, 581-582. See also, Duncan v. Kahanamoku, 327 U,S. 304; In re Yamashitq, 327 U.S. 1;Santiag~v. Nomerag, 214 U.S. 260; Neely v. Henkel, 180 U.S. 109; Mechanics1 & Traders1 Bank v. Union Bank, 22 Wall. 276, 279 note; The Gra~eshot,9 Wall. 129, 132; Cross v. Harrison, 16 How. 164, 190; I1 Halleck, International Law (3d ed. 1893), 444-445. For an example of the exercise of jurisdiction in a murder case by a Provisional Court established in Louisiana, in 1862, by executive order of the President of the United States and an opinion by the Pro­visional Judge reviewing the constitutional authority for the establish­ment of his court, see United States v. Reiter, 27 Fed, Cas, No. 16,146.
10.
While explaining a proposed reference to military commissions in Article of War 15, Judge Advocate General Crowder, in 1916, said, "A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law." S. Rep, No. 130, 64th Cong., 1st Sess. 40.

11.
Such as Military Commission, Council of War, Military Tribunal, Mili­tary Government Court, Provisional Court, Provost Court, Court of Concili­ation, Arbitrator, Superior Court, and Appellate Court. And see Winthrop, op. cit. 803-804.


In the absence of attempts by Congress to limit the President's power, it appears that, as Commander-in-Chief of the Amy and Navy of the United States, he may in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States. His authority to do this sometimes sur­vives cessation of hostilities.12 The President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms.13 The policy of Congress to refrain from legislating in this uncharted area does not imply its lack of power to legislate. That evident restraint contrasts with its traditional readiness to "make Rules for the Gov- ernment and Regulation of the land and naval Forces; . . . ."I4 UnAer
12.
It has been recognized, even after peace has been declared pending complete establishment of civil government. See Duncan v. Kahanamoku, 327 U.S. 304; In re Yamashita, 327 U.S. 1, 12-13; Santiago v. Nomeras, W4 U.S. 260; Neely v. Henkel, 180 U.S. 109; Burke v. Miltenberner, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164.

13.
See Article 43 of The Hague Regulations respecting the laws and customs of war on land with special relation to military authority over the territory of a hostile state (1907):


"The authority of the legitimate power having in fact passed into the hands of the occupant, the lattor shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." 36 Stat. 2306.
"Military Government. . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of ad- ministration. Whether administered by officers of the army of the bel- ligerent, or by civilians left in office or appointed by him for the purpose, it is the government andifor all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. . . . The local laws and ordinances may be left in force, and in general should be, sub­ject however to their being in whole or in part suspended and others substituted in their stead--in the discretion of the governing authority." Winthrop, OD, cit. 800.
14. U.S. Const., A

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