GERMAN NEW GUINEA LOSS OF MERCHANT VESSEL OFF COAST THROUGH ENEMY ACTION: WHETHER EXPENSES OF SEARCH CAN BE CHARGED AGAINST FUNDS OF BRITISH ADMINISTRATION: RIGHTS AND OBLIGATIONS INCIDENT TO MILITARY OCCUPATION
HAGUE CONVENTION (1907) (No. IV) CONCERNING THE LAWS AND CUSTOMS OF WAR ON LAND, Annexe, Section HI
The question has been referred by the Secretary to the Department of Defence as to whether the expenses incurred in the search for the S.S. Matunga are chargeable against the funds of the British Administration of German New Guinea.
It appears that during the British occupation of German New Guinea the S.S. Matunga was lost off the coast of that territory, due to enemy action at sea. The Administrator promptly initiated a search, as he considered the matter one of extreme urgency and of national concern, especially as there were sixteen members of the Tropical Force on board, and thus the expenses were incurred.
It is now suggested that it is not legitimate to debit these expenses against the Administration funds, as they are not considered as incurred in the course of carrying on the government of the Colony during military occupation.
This suggestion places, in my opinion, far too narrow a construction on the rights of the military occupier.
Occupation by a conqueror suspends the obligation of the people to the former sovereign, but the taxes, rents, etc. from their lands etc. belong of right to the conqueror. They are part of the spoils of war, and are subject to the laws of the conqueror (Halleck's International Law, 4th edn, Vol. II, p. 470).
Under the Hague Convention the rights of the conqueror have been cut down to prevent him using his power for self-enrichment or to crush the inhabitants of the occupied territory, and, since he has the revenues, he is given the obligation of defraying the expenses of his public administration, but any surplus remains for him to be used for his own necessary purposes; and, if the revenues are not sufficient, he has the right to levy contributions in the occupied territory 'for the needs of the army or of the administration of such territory' (Wheaton's International Law, 5th edn, pp. 534-5; Stockton, Outlines of International Law, pp. 366-7). The power of the conqueror should only be exercised for what 'is necessary for the purposes of the war, the maintenance of order and safety, and the proper administration of the country' (military handbook on Land Warfare, paras 353, 369 and 423(1).
If the Administrator learns that off the coast of his territory the enemy are attacking a vessel carrying some of his troops, or that a vessel may be derelict, or survivors may need help, and he sends out vessels to search for the derelict, rescue survivors, or chase away or destroy the enemy, can it be said that this is not 'necessary for the purposes of the war, the maintenance of order and safety, and the proper administration of the country'? I think it clearly is. It is the first duty of an administration to maintain order and safety. It is the first duty of a military administration to safeguard its forces.
I think, therefore, that these expenses are properly chargeable against the funds of the British Administration of German New Guinea, both as Administration expenses, and as incurred for the needs of the army.
[Vol. 16, p. 20]
(1)J.E Edmonds & L.Oppenheim, Land Warfare: an Exposition of the Laws and Usages of War on Land, for the Guidence of Officers of His Majesty's Army, H.M.O.S., London, n.d.