Some Aspects of The Operation of International and Military Law in Burma, 1941–1945
| Published date | 01 April 1949 |
| Author | A. Gledhill |
| Date | 01 April 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00120.x |
SOME ASPECTS
OF
THE
OPERATION
OF
INTERNATIONAL AND MILITARY
LAW
IN BURMA,
1941-1945
ASSUMING
the occupation by
a
belligerent of enemy territory
to
be
effective-and
it
would be idle
to
contend that, for the greater
part
of
the period under consideration, those parts of
Burma
under
the control of the Japanese military forces were not effectively
occupied-the occupant's right
to
govern by martial law is recog-
nised at international law. His position has been thus stated
:-
'Though the Martial Law of the Commander is not really law
at
all
. . .
it
does not justify military oppression. Its stringency
will,
of course depend
on
the particular circumstances of each case
;
for example
on
the amount of danger to which the military forces
under the Commander are exposed, and, in occupied territory, on
the conduct of the local inhabitants, but, in every case,
it
should
be administered in accordance with the universally recognised
fundamental principles of honour, fairness, and ju8tice.l
6Although the occupant
in
no
wise acquires sovereignty over
such tembry
.
.
.
he actually exercises for the time being a
Military Authority over
it.'
'
He
may neither annex
it
while the war continues, nor set
it
up
as an independent state, nor divide
it
(as
Germany during the
World War divided Belgium)
into
two administrative districts
for political purposes.'
'
By Article
48
of
the Regulations Respecting the Law and
Customs of
War
on
Land
;
Annex
to
the Hague Convention
of
1907,
the occupant is obliged
to
do
'
all
in his power
'
to
restore public
order, security, and social and commercial life; he must, unless
'
absolutely prevented
',
respect the existing laws, and his innova-
tions must be compatible with international
law
and the dictates
of justice.
It
is proposed to examine some of the acts of the Japanese in
Burma,
and
to
compare them with the conduct,
in
the same depart-
ments,
of
the Sovereign Power, for the purpose of estimating how
far
the Japanese Military Commander fell short
of
what was required
of him
at
international
law,
and of appreciating some of the diffi-
culties which face an Occupying Power,
Notwithstanding that, by the Hague Convention of
1907,
much
has
been done to define the rights and duties of belligerents, there
l
Wheaton:
International Law
(7th ed.),
by
A.
R.
Krith, p.
240.
Oppenheim:
International
Law,
Vol.
8
lGtli
ed.),
by
Laiitcrpecht,
p.
38.
s
Oppenheim,
op
cit.,
p.
84%
191
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