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Published online by Cambridge University Press: 25 April 2017
International law was no more prepared for the dynamics of the present war than was the Maginot school of military strategy. International lawyers had given little serious thought to the legal problems which total war would bring. Consequently, while international arrangements were concluded on special questions (e.g. on aerial warfare), the main body of the 1907 Hague Convention, including the section dealing with military occupation,remained unchanged. Military occupation was still conceived of as a temporary phenomenon with limited objectives. But totalitarian warfare as waged by the Axis powers has had unlimited objectives, aimed at nothing less than the complete political and economic subjugation of the occupied territory. In practice the enemy has recognized no restraints of either law or custom save the threat of immediate retaliation. Far from “respecting, unless absolutely prevented, the laws in force in the country,” as the Hague regulations require, the Axis has systematically destroyed the political and legal order in the occupied territories. It has substituted quislings in the place of duly constituted local authorities, and has employed them for economic as well as political ends.
1 New York Times,October 11, 1944.
2 For adherence to the Hague Convention, see: Oppenheim, L., International Law,ed. by Lauterpacht, H., London, 1940 (6th ed.), Vol. II, p. 739 Google Scholar; G, G. Wilson, International Law,Boston, 1935 (9th ed.), App. 3, p. xxxvii. Yugoslavia neither signed nor ratified the Convention of 1907, but she and Italy did sign and ratify that of 1899 Proceedings of the Hague Peace Conference, 1899,p. 268) which remains in force, according to Article IV of the 1907 Convention.
3 Ernst Feilchenfeld, The International Economic Law of Belligerent Occupation,Washington, 1942, gives a comprehensive summary of the problem as it stood at the beginning of the second World War. Cf. also Ernst Fraenkel, Military Occupation and the Rule of Law,London, 1944.
4 This could be defined as “private property by destination” analogous to the “immovable property by destination” of the French Code Civil(Articles 517, 524). On this subject see William M. Franklin, “Municipal Property under Belligerent Occupation,” this Journal, Vol. 38 (1944), p. 383.
4a Isvestiya,April 28, 1942.
5 Article V of the Constitution of the U.S.S.R., literally reproduced in the Constitutions of the Union Republics. Cf. Article 52 of the Civil Code of the R.S.F.S.R.
6 Such is the so-called property of the kolkhoz(collective farm).
7 Articles IX and X of the Constitution of the U.S.S.R., reproduced in the Constitutions of the Union Republics. There are various types of “personal” property (Articles 54, 71 ff. of Civil Code) including “areas neighboring the house of the farmer.”
8 Bartin, E. A., Droit International Prive,Paris, 1938.Google Scholar
9 The strategy behind German penetration of European industry is to establish links too strong to be broken even in the event of military failure. The methods are threefold: (a) the amalgamation of foreign and German industry through financial arrangements and the fiction of legal acquisition; (b) the reorganization of continental industry by directing the flow of raw materials, dismantling plants that may compete in the future and centralizing others to make control easier; (c) modification of production processes by “persuading” controlled industries to use ersatz materials, thus making them dependent on Germany for raw materials and technical direction. The Statist,London, Vol. 138, No. 3314, pp. 150-151; see also: “The Penetration of German Capital Into Europe,” Inter-Allied BulletinNo. 5, Inter-Allied Information Committee, London, 1942), and Occupied Europe: German Exploitation and its Post-War Consequences,London, 1944. For the German technique of occupation, see: Raphael Lemkin, Axis Rule in Occupied Europe,Washington, Carnegie Endowment, 1944.
10 The houses and possessions of 1,500,000 Poles who were forcibly deported from the annexed territories during the first year of German occupation were turned over to Germans, mostly new settlers coming from various regions of the Soviet sphere of influence; in Alsace and Lorraine all property of enemies of Germany was confiscated; in Serbia, of Jews, and Gypsies; in Ostland, of Jews.
11 The avis officielof the Belgian government-in-exile to the law mentioned below and of the Luxembourg decree cited below define these acts as constituting an attack against the sovereignty of the Belgian state and Luxembourg, and especially against the constitutional principle of equality of all Belgians and Luxembourgers, without distinction of creed, race. and language.
12 The rate of exchange of the French franc was set at 20 fr. to the mark after the collapse of France, while the rate existing previously was only 17.6. The real rate, if the purchasing power of the two countries were to be compared, would have been no more than 10 francs to the mark. In other countries, imposed rates were raised or lowered in accordance with German requirements. For the exchange rates, see: Lemkin, p. 52.
13 The credit balance of Belgium at the end of August 1944 was $1,440,000,000; of France, $2,300,000,000. Before the occupation, Denmark owed Germany 7.6 million Kroner; in 1944, Germany owed Denmark 39 million dollars (Free World,Vol. III , No. 1, p. 70; New York Times,October 11, 1944). During 1941, the Netherlands Bank's holdings of bills payable in Germany, resulting from the accumulation of large amounts of German marks, increased from 15.4 million guilders to 929.9 million guilders (Knickerbocker Weekly,1942, No. 5).
14 The present paper is concerned with developments before liberation. It should, however, be stressed that, to the best of our knowledge, no new development of any importance in the field have so far been enacted by the governments in liberated countries, except in France.
15 Moniteur Beige,February 7, 1940; June 8, 1940; November 22, 1940. English translation in Commerce Clearing House, War Law Service, Foreign Supplement,New York.
16 Original text in the Memorial du Crand-Duché de Luxembourg,March 2, 1940, English version in the Federal Reserve Bank of New York CircularNo. 2211 of May 12, 1941; Mémorial,February 15, 1941.
17 Netherlands State Law RecordNo. 200; English translation by the Netherlands Chamber of Commerce, New York.
18 Netherlands State Law Record,May 24, 1940, as amended March 6, 1942, and May 7, 1942; English version in the Federal Reserve Bank of New York CircularNo. 2091, July 2, 1940 and Circular No. 2633 of June 4, 1943.
19 Polish text in Dziennik Ustaw Rzeczypospolitej Polskiej,1940, Nr. 4, Poz. 10. In this connection the legislation of the Protectorate is of interest, and is cited below: July 15,1941:Ordinance of the Ministerial Council for the Defense of the Reich regarding the registration of foreign property and German property abroad (Verordnungsblatt, Reichsprotektor1941, S. 424 — ReichsgesetzblattI, S. 439). August IS, 1941:Ordinance of the Trustee for the Pour Year Plan for the Liquidation of the Claims and Debts of Polish Property (Verordnungsblatt, Reichsprotektor1941, S. 500-518 — ReichsgesetzblattI, S. 516). November 19, 1941:Ordinance of the Reich Protector of Bohemia-Moravia for the execution of the Debt Liquidation Ordinance of August 15, 1941 (Verordnungsblatt, Reichsprotektor1941, S. 649).
20 Dziennik Ustaw Rzeczypospolitej Polskiej,No. 102, poz. 1006.
21 Original text in the Netherlands State Law RecordNo. A6, 1940, English version issued by the Netherlands Shipping and Trading Committee, N. Y. After the occupation of Netherlands East Indies by the Japanese, a special Royal Decree was enacted on March 6, 1942 to safeguard the property in this colony (English translation as in footnote 17).
22 Moniteur Beige1941, No. 6, February 25, pp. 44-49. On the same date a second Belgian decree was promulgated to determine the effect of measures taken by the occupant and the provisions taken by the Government, both decrees accompanied by an avis officiel(the same, p. 44). It may be interesting to note that these two decrees are practically a literal reproduction of decrees of the Belgian Government-in-exile (Bordeaux) during World War I, decrees of May 31, 1917 (Moniteur,May 26-31, 1917) and of April 8,1917 (the same, April 5-8).
23 The Luxembourg decrees are a reproduction, with minor changes, of the corresponding Belgian decrees (See: Mémorial du Grand-Duché de Luxembourg,April 2, 1941, No. 2). English version in the Federal Reserve Bank of New York CircularNo. 2268, August 29, 1941).
24 Sluzebne Novine,No. 7, 1942.
25 Greek Official Gazette,No. 172, October 28, 1941.
26 Norsk Lovtidend,December 31, 1942, p. 182.
27 Inter-Allied Review,1941, No. 11.
28 Official Journal,November 18, 1943, pp. 277-278, amended by the Ordinance of November 14, 1944 (Official Journal,November 15, 1944, p. 1310).
29 Polish Law Gazette,1940, Nos. 2 and 3.
30 Provisional Ordinance on the Reopening and Revision of Legislative and Administrative Decisions and Administrative Decrees in Norway Under German Occupation. Norsk Lovtidend,No. 2, 1941, p. 119.
31 Same, pp. 120-121, 179-180.
32 See: Oppenheimer in this Journal, Vol. 36 (1942), p. 578; Alfred Drucker, “The Legislation of the Allied Powers in the United Kingdom,” Czechoslovak Yearbook of International Law,1942, pp. 45-59, 172-178, 190-195, 218-221; Dr. Manfred Lachs, “Polish Legislation in Exile,” same, pp. 57-60; Dr. Egon Schwell, “Legislation in Exile: Czechoslovakia,” in Journal of Comparative Legislation and International Law,1942, pp. 120-124; “Legislation in Exile: Norway,” same, 125-130; Mortin, Domke, Trading with the Enemy in World War II, New York, 1943 Google Scholar, Chap. 21: “Administration of National Assets Abroad by Governments-in- Exile“j S. A. Lowrie and M. Meyer, “Governments-in-Exile and the Effect of their Expropriation Decrees,” in University of Chicago Law Review,Vol. XI (1943), p. 26.
33 On the problem of the validity of acts of the occupant in foreign countries, see: London International Law Conference, 1943,London, 1944, pp. 1, 75.
34 War and Peace Aims,Special Supplement to United Nations Review, No. 1 (January 1943), p. 36. Cf. also the amendment of December 17, 1942 of the Belgian Penal Code.
35 New York Times,April 9, 1943.
35a Cmd. 6418. See also: Final Act of the United Nations Monetary and Financial Conference (Bretton Woods) VI. Enemy Assets and Looted Property (Department of State, Conference Series55, p. 22), and L. H. Woolsey “The Forced Transfer of Property in Enemy Occupied Territories”, this Journal, Vol. 37 (1943), p. 282.
36 See, for instance: Hiram Motherwell, The Peace We Are Fighting For,New York and London, 1943, pp. 32-33: “It is easy to say, from a distance, that all Nazi financial operations put into effect during the war ought to be declared null and void and all property should be restored as of the status quo ante.But these operations were often accepted as legal at the time… . Shall someone distinguish between voluntary deals and deals concluded under duress? Scores of millions of individuals will simply have to take their losses and start anew.”
37 278 Fed. 294.
38 62 Sup. Ct. 552 (reprinted in this Journal, Vol. 36 (1942), p. 309).
