FM 27-10 Oct. 1, 1940
Re: FM 27-10 Oct. 1, 1940
https://www.loc.gov/rr/frd/Military_Law ... e-1940.pdf
FM 27-10
WAR DEPARTMENT FIELD MANUAL
RULES OF LAND WARFARE
WAR DEPARTMENT * 1 OCTOBER 1940
FOREWORD
--------
Except as hereinafter noted, the official English text or translation of every treaty provision obligatory upon the United States, bearing upon the conduct of the forces in the field, is quoted <i>verbatim</i> in the chapter to which it relates . . . . .
CHAPTER 10
MILITARY OCCUPATION AND GOVERNMENT OF ENEMY TERRITORY
(This chapter deals primarily with the legality of military government. FM 27-5 deals with its policy and administration.)
271. Military occupation. -- Territory is considered occupied
when it is actually placed under the authority of the hostile
army.
The occupation extends only to the territory where such
authority has been established and can be exercised (H.R.,
art. 42).
272. Occupation, question of fact. -- Military occupation
is a question of fact. It presupposes a hostile invasion as a
result of which the invader has rendered the invaded government
incapable of publicly exercising its authority, and that the
invader is in position to substitute and has substituted his own
authority for that of the legitimate government in the territory
invaded.
273. Does not transfer sovereignty. -- Being an incident of
war, military occupation confers upon the invading force the
right to exercise control for the period of occupation. It does
not transfer the sovereignty to the occupant, but simply the
authority or power to exercise some of the rights of sovereignfy.
The exercise of these rights results from the established power
of the occupant and from the necessity for maintaining law and
order, indispensable to both the inhabitants and to the occupying
force.
274. Distinguished from invasion. -- The state of invasion
corresponds with the period of resistance. Invasion is not
necessarily occupation, although it precedes it and may frequently
coincide with it. An invader may push rapidly through
n large portion of enemy country without establishing that effective
control which is essential to the status of occupation. He
may send small raiding parties or flying columns, reconnoitering
detachments, etc., into or through a district where they may be
temporarily located and exercise control, yet when they pass
on it cannot be said that such district is under his military
occupation.
275. Distinguished from subjugation or conquest. -- Military
occupation in a foreign war, being based upon the fact of possession
of enemu territory, necessarily implies that the sovereignty
of the occupied territory is not vested in the occupying
power. The occupation is essentially provisional.
On the other hand subjugation or conquest implies a transfer
of sovereignty. Ordinarily, however, such transfer is effected
by a treaty of peace. When sovereignty passes, military occupation,
as such, must of course cease; although the territory
may, and usually does for a period at least, continue to be governed
through military agencies which have such powers as the
President or Congress may prescribe.
276. Occupation must be effective. -- It follows from the definition
that military occupation must be both actual and
effective; that is, the organized resistance must have been overcome
and the forces in possession must have taken measures to
establish law and order. It is suflicient that the occupying
army can, within a reasonable time, send detachments of troops
to make its authority felt within the occupied district. It is
immaterial by what methods the authority is exercised, whether
by fixed garrisons or flying columns, small or large forces.
277. Presence of invested fort immaterial. -- The existence
of a fort or defended area within the occupied district, provided
such place is invested, does not render the occupation
of the remainder of the district ineffective, nor is the consent
of the inhabitants in any manner essential.
278. Proclamation of occupation. -- In a strict legal sense
no proclamation of military occupation is necessary. On account
of the special relations established between the inhabitants
of the occupied territory and the occupant by virtue of the
presence of the invading force, the fact of military occupation,
with the extent of territory affected, should be made known.
The practice of this Government is to make this fact known
by proclamation.
279. Commencement of occupation. -- In the absence of a
proclamation or similar notice the exact time of commencement
of occupation may be difficult to fix. The presence of a sufficient
force to disarm the inhabitants or enforce submission and the
cessation of local resistance due to the defeat of the enemy's
forces determine the commencement of occupation.
280. Cessation of occupation. -- Occupation once acquired
must be maintained. In case the occupant evacuates the district
or is driven out by the enemy, or by a levee em masse, and
the legitimate government actually resumes its functions, the
occupation ceases. It does not cease, however, if the occupant,
after establishing his authority, moves forward against the
enemy, leaving a smaller force to administer the affairs of the
district. Nor does the existence of a rebellion or the operations
of guerrilla bands cause it to cease unless the legitimate government
is reestablished or the occupant fails promptly to suppress
such rebellion or guerrilla operations.
ADMINISTRATION OF OCCUPIED TERRITORY
281. Necessity for military government. -- Military government
is the organization through which a belligerent exercises
authority over the territory of the enemy invaded and occupied
by him. The necessity for such government arises from the
failure or inability of the legitimate government to exercise its
functions on account of the military operations or occupation.
282. Duty to restore law and order. -- The authority of the
legitimate power having in fact passed into the hands of the
occupant, the latter shall take all measures in his power to
restore, and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force
in the country (H.R., art. 43).
283. Functions of government. -- All the functions of the
hostile government-legislative, executive, or administrative whether
of a general, provincial, or local character, cease under
military occupation, or continue only with the sanction, or, if
deemed necessary, the participation of the occupier or invader.
284. Nature of government. -- It is immaterial whether the
government established over an enemy's territory be called a
military or civil government. Its character is the same and
the source of its authority is the same. It is a government
imposed by force, and the legality of its acts is determined by
the laws of war. During the military occupation it may exercise
all the powers given by the laws of war.
285. The laws in force. -- The principal object of the occupant
is to provide for the security of the invading army and
to contribute to its support and efficiency and the success of its
operations. In restoring public order and safety he will continue
in force the ordinary civil and criminal laws of the occupied
territory which do not conflict with this object. These
laws will be administered by the local officials as far as practicable.
All crimes not of a military nature and which do not
affect the safety of the invading army are left to the jurisdiction
of the local courts.
286. Power to suspend and promulgate laws. -- The military
occupant may suspend existing laws and promulgate new ones
when the exigencies of the military service demand such action.
287. Nature of laws suspended. -- The occupant will naturally
alter or suspend all laws of a political nature as well as
political privileges and all laws which affect the welfare and
safety of hi command. Of this class are those relating to
recruitment in occupied territory, the right of assembly, the
right to bear arms, the right of suffrage, the freedom of the
press, the right to quit or travel freely in occupied territory.
Such suspensions should be made known to the inhabitants.
288. Nature of laws promulgated.-- An occupant may create
new laws for the government of a country. He will promulgate such
new laws and regulations as military necessity demands.
In this class will be included those laws which come
into being as a result of military rule; that is, those which
establish new crimes and offenses incident to a state of war and
are necessary for the control of the country and the protection
of the army.
FOOTNOTES & REFERENCES
The following footnotes and references were not included in FM 27-10, but have
been compiled by the Editors of the www.twdefense.info/usa/ website
FM 27-10
WAR DEPARTMENT FIELD MANUAL
RULES OF LAND WARFARE
WAR DEPARTMENT * 1 OCTOBER 1940
FOREWORD
--------
Except as hereinafter noted, the official English text or translation of every treaty provision obligatory upon the United States, bearing upon the conduct of the forces in the field, is quoted <i>verbatim</i> in the chapter to which it relates . . . . .
CHAPTER 10
MILITARY OCCUPATION AND GOVERNMENT OF ENEMY TERRITORY
(This chapter deals primarily with the legality of military government. FM 27-5 deals with its policy and administration.)
271. Military occupation. -- Territory is considered occupied
when it is actually placed under the authority of the hostile
army.
The occupation extends only to the territory where such
authority has been established and can be exercised (H.R.,
art. 42).
272. Occupation, question of fact. -- Military occupation
is a question of fact. It presupposes a hostile invasion as a
result of which the invader has rendered the invaded government
incapable of publicly exercising its authority, and that the
invader is in position to substitute and has substituted his own
authority for that of the legitimate government in the territory
invaded.
273. Does not transfer sovereignty. -- Being an incident of
war, military occupation confers upon the invading force the
right to exercise control for the period of occupation. It does
not transfer the sovereignty to the occupant, but simply the
authority or power to exercise some of the rights of sovereignfy.
The exercise of these rights results from the established power
of the occupant and from the necessity for maintaining law and
order, indispensable to both the inhabitants and to the occupying
force.
274. Distinguished from invasion. -- The state of invasion
corresponds with the period of resistance. Invasion is not
necessarily occupation, although it precedes it and may frequently
coincide with it. An invader may push rapidly through
n large portion of enemy country without establishing that effective
control which is essential to the status of occupation. He
may send small raiding parties or flying columns, reconnoitering
detachments, etc., into or through a district where they may be
temporarily located and exercise control, yet when they pass
on it cannot be said that such district is under his military
occupation.
275. Distinguished from subjugation or conquest. -- Military
occupation in a foreign war, being based upon the fact of possession
of enemu territory, necessarily implies that the sovereignty
of the occupied territory is not vested in the occupying
power. The occupation is essentially provisional.
On the other hand subjugation or conquest implies a transfer
of sovereignty. Ordinarily, however, such transfer is effected
by a treaty of peace. When sovereignty passes, military occupation,
as such, must of course cease; although the territory
may, and usually does for a period at least, continue to be governed
through military agencies which have such powers as the
President or Congress may prescribe.
276. Occupation must be effective. -- It follows from the definition
that military occupation must be both actual and
effective; that is, the organized resistance must have been overcome
and the forces in possession must have taken measures to
establish law and order. It is suflicient that the occupying
army can, within a reasonable time, send detachments of troops
to make its authority felt within the occupied district. It is
immaterial by what methods the authority is exercised, whether
by fixed garrisons or flying columns, small or large forces.
277. Presence of invested fort immaterial. -- The existence
of a fort or defended area within the occupied district, provided
such place is invested, does not render the occupation
of the remainder of the district ineffective, nor is the consent
of the inhabitants in any manner essential.
278. Proclamation of occupation. -- In a strict legal sense
no proclamation of military occupation is necessary. On account
of the special relations established between the inhabitants
of the occupied territory and the occupant by virtue of the
presence of the invading force, the fact of military occupation,
with the extent of territory affected, should be made known.
The practice of this Government is to make this fact known
by proclamation.
279. Commencement of occupation. -- In the absence of a
proclamation or similar notice the exact time of commencement
of occupation may be difficult to fix. The presence of a sufficient
force to disarm the inhabitants or enforce submission and the
cessation of local resistance due to the defeat of the enemy's
forces determine the commencement of occupation.
280. Cessation of occupation. -- Occupation once acquired
must be maintained. In case the occupant evacuates the district
or is driven out by the enemy, or by a levee em masse, and
the legitimate government actually resumes its functions, the
occupation ceases. It does not cease, however, if the occupant,
after establishing his authority, moves forward against the
enemy, leaving a smaller force to administer the affairs of the
district. Nor does the existence of a rebellion or the operations
of guerrilla bands cause it to cease unless the legitimate government
is reestablished or the occupant fails promptly to suppress
such rebellion or guerrilla operations.
ADMINISTRATION OF OCCUPIED TERRITORY
281. Necessity for military government. -- Military government
is the organization through which a belligerent exercises
authority over the territory of the enemy invaded and occupied
by him. The necessity for such government arises from the
failure or inability of the legitimate government to exercise its
functions on account of the military operations or occupation.
282. Duty to restore law and order. -- The authority of the
legitimate power having in fact passed into the hands of the
occupant, the latter shall take all measures in his power to
restore, and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force
in the country (H.R., art. 43).
283. Functions of government. -- All the functions of the
hostile government-legislative, executive, or administrative whether
of a general, provincial, or local character, cease under
military occupation, or continue only with the sanction, or, if
deemed necessary, the participation of the occupier or invader.
284. Nature of government. -- It is immaterial whether the
government established over an enemy's territory be called a
military or civil government. Its character is the same and
the source of its authority is the same. It is a government
imposed by force, and the legality of its acts is determined by
the laws of war. During the military occupation it may exercise
all the powers given by the laws of war.
285. The laws in force. -- The principal object of the occupant
is to provide for the security of the invading army and
to contribute to its support and efficiency and the success of its
operations. In restoring public order and safety he will continue
in force the ordinary civil and criminal laws of the occupied
territory which do not conflict with this object. These
laws will be administered by the local officials as far as practicable.
All crimes not of a military nature and which do not
affect the safety of the invading army are left to the jurisdiction
of the local courts.
286. Power to suspend and promulgate laws. -- The military
occupant may suspend existing laws and promulgate new ones
when the exigencies of the military service demand such action.
287. Nature of laws suspended. -- The occupant will naturally
alter or suspend all laws of a political nature as well as
political privileges and all laws which affect the welfare and
safety of hi command. Of this class are those relating to
recruitment in occupied territory, the right of assembly, the
right to bear arms, the right of suffrage, the freedom of the
press, the right to quit or travel freely in occupied territory.
Such suspensions should be made known to the inhabitants.
288. Nature of laws promulgated.-- An occupant may create
new laws for the government of a country. He will promulgate such
new laws and regulations as military necessity demands.
In this class will be included those laws which come
into being as a result of military rule; that is, those which
establish new crimes and offenses incident to a state of war and
are necessary for the control of the country and the protection
of the army.
FOOTNOTES & REFERENCES
The following footnotes and references were not included in FM 27-10, but have
been compiled by the Editors of the www.twdefense.info/usa/ website
Re: FM 27-10 Oct. 1, 1940
COLLECTIVE PUNISHMENTS
343. Penalty for individual acts of inhabitants. -- No general
penalty, pecuniary or otherwise, shall be inflicted upon the
population on account of acts of individuals for which they
cannot be regarded as jointly and severally responsible (H.R.,
art. 50).
344. Above article does not prevent reprisals. -- Reprisals by
the occupant for violations of the laws of war or breach of the
occupant's proclamations or regulations by enemy individuals
not belonging to the armed forces are not prohibited by the
above article.
343. Penalty for individual acts of inhabitants. -- No general
penalty, pecuniary or otherwise, shall be inflicted upon the
population on account of acts of individuals for which they
cannot be regarded as jointly and severally responsible (H.R.,
art. 50).
344. Above article does not prevent reprisals. -- Reprisals by
the occupant for violations of the laws of war or breach of the
occupant's proclamations or regulations by enemy individuals
not belonging to the armed forces are not prohibited by the
above article.
Re: FM 27-10 Oct. 1, 1940
CHAPTER 1
BASIC RULES AND PRINCIPLES
1. General. -- Among civilized nations the conduct of war is
regulated by certain well-established rules known as the rules
or laws of war. These rules cover and regulate warfare both on
land and sea. Those which pertain particularly to war on land
are called the rules of land warfare. It is the latter with which
this manual is concerned.
2. Written rules. -- Many of the rules of war have been set
forth in treaties or conventions to which thc United States and
other nations are parties. These are commonly called the
written rules or laws of war.
3. Unwritten rules. -- Some of the rules of war have never
yet been incorporated in any treaty or convention to which the
United States is signatory. These are commonly called the
unwritten rules or laws of war, although they are well defined
by recognized authorities on international law and well established
by the custom and usage of civilized nations.
4. Basic principles. -- Among the so-called unwritten rules or
laws of war are three interdependent basic principles that
underlie all of the other rules or laws of civilized warfare, both
written and unwritten, and f~rm the general guide for conduct
where no more specific rule applies, to wit:
a. The principle of military necessity, under which, subject to
the principles of humanity and chivalry, a belligerent is justified
in applying any amount and any kind of force to- compel the
complete submission of the enemy. with the lea& possible
expenditure of time, life, and money;
b. The principle of humanity, prohibiting employment of any
such kind or degree of violence as is not actually necessary for
the purpose of the war; and
c. The principle of chivalry, which denounces and forbids
resort to dishonorable means, expedients, or conduct.
5. Force of rules. -- a. The unwritten rules are binding upon
all civilized nations. They will be strictly observed by our
forces, subject only to such exceptions as shall have been directed
by competent authority by way of legitimate reprisals
for illegal conduct of the enemy. (See par. 358.)
b. Technically each of the written rules is binding only between
powers that have ratified or adhered to, and have not
thereafter denounced (withdrawn from), the treaty or convention
by which the rule is prescribed, and is binding only to the
extent permitted by the reservations, if any, tha.t have accompanied
such ratification or adherence on either side. However,
the written rules herein quoted in bold-faced type are all prescribed
by treaties or conventions each of which has been ratified
without reservation, and not thus far denounced, by the
United States and many other nations. They are in large part
but formal and specific applications of general principles of the
unwritten rules. While solemnly obligatory as between the
signatory powers, they may be said also to represent the consensus
of modern international public opinion as to how belligerents
and neutrals should conduct themselves in the particulars
indicated. As a general rule they will be strictly observed and
enforced by United States forces in the field, as far as applicable
there, without regard to whether they are legally binding
upon all of the powers immediately concerned. . . . . . .
BASIC RULES AND PRINCIPLES
1. General. -- Among civilized nations the conduct of war is
regulated by certain well-established rules known as the rules
or laws of war. These rules cover and regulate warfare both on
land and sea. Those which pertain particularly to war on land
are called the rules of land warfare. It is the latter with which
this manual is concerned.
2. Written rules. -- Many of the rules of war have been set
forth in treaties or conventions to which thc United States and
other nations are parties. These are commonly called the
written rules or laws of war.
3. Unwritten rules. -- Some of the rules of war have never
yet been incorporated in any treaty or convention to which the
United States is signatory. These are commonly called the
unwritten rules or laws of war, although they are well defined
by recognized authorities on international law and well established
by the custom and usage of civilized nations.
4. Basic principles. -- Among the so-called unwritten rules or
laws of war are three interdependent basic principles that
underlie all of the other rules or laws of civilized warfare, both
written and unwritten, and f~rm the general guide for conduct
where no more specific rule applies, to wit:
a. The principle of military necessity, under which, subject to
the principles of humanity and chivalry, a belligerent is justified
in applying any amount and any kind of force to- compel the
complete submission of the enemy. with the lea& possible
expenditure of time, life, and money;
b. The principle of humanity, prohibiting employment of any
such kind or degree of violence as is not actually necessary for
the purpose of the war; and
c. The principle of chivalry, which denounces and forbids
resort to dishonorable means, expedients, or conduct.
5. Force of rules. -- a. The unwritten rules are binding upon
all civilized nations. They will be strictly observed by our
forces, subject only to such exceptions as shall have been directed
by competent authority by way of legitimate reprisals
for illegal conduct of the enemy. (See par. 358.)
b. Technically each of the written rules is binding only between
powers that have ratified or adhered to, and have not
thereafter denounced (withdrawn from), the treaty or convention
by which the rule is prescribed, and is binding only to the
extent permitted by the reservations, if any, tha.t have accompanied
such ratification or adherence on either side. However,
the written rules herein quoted in bold-faced type are all prescribed
by treaties or conventions each of which has been ratified
without reservation, and not thus far denounced, by the
United States and many other nations. They are in large part
but formal and specific applications of general principles of the
unwritten rules. While solemnly obligatory as between the
signatory powers, they may be said also to represent the consensus
of modern international public opinion as to how belligerents
and neutrals should conduct themselves in the particulars
indicated. As a general rule they will be strictly observed and
enforced by United States forces in the field, as far as applicable
there, without regard to whether they are legally binding
upon all of the powers immediately concerned. . . . . . .
Re: FM 27-10 Oct. 1, 1940
legal occupant or legal occupier
NOT DEFINED
Supreme Court
Birkhimer, etc.
Agency definition
Relationship
usufruct
Proxy occupation
end of military occupation for territorial cessions
Cuba example
"Military occupation" is default terminology
-
NOT DEFINED
Supreme Court
Birkhimer, etc.
Agency definition
Relationship
usufruct
Proxy occupation
end of military occupation for territorial cessions
Cuba example
"Military occupation" is default terminology
-