851R.01/144
Memorandum by the Legal Adviser (Hackworth)
Memorandum for Discussion With General Hull on the North African Situation
It is a fundamental rule of international law that a military occupant is supreme in the occupied territory and that local laws may be set aside or superseded by decrees of the military occupant. This may be done by a single stroke of the military occupant or by degrees as the exigencies of the situation may dictate.
It is also a rule generally recognized that the military occupant should not interfere with local civil administration beyond the degree necessary for the safety of the military occupant and the carrying out of the purposes of the occupation; in other words, that the civil authorities—administrative and judicial—should be permitted to function with respect to matters of local concern and apply local law to the extent that this may be done with safety from the point of view of the purposes of the military occupation.
It is desirable that our conduct in occupied territory should afford a favorable contrast with that of the Axis powers in occupied territory, and that every effort should be made to cause the local population and the local officials to feel that we are their friends and not their oppressors; that the civil and judicial authorities will be allowed freely to function with respect to matters of local concern, provided they demean themselves in a manner consistent with the purposes of the military occupation, and that no military order or regulation shall in anywise be contravened; that offenses of a military character or offenses in contravention of a military order or regulation shall be cognizable only in the military tribunals.
These general propositions are, of course, no less in the mind of the War Department than in that of the Department of State.
In order that there may be complete collaboration between the two Departments, it is deemed desirable that there should be an understanding on some of the outstanding questions pertaining to the occupation of Northern Africa. Some of the questions are as follows:
- (1)
- The extent to which the military are controlling civil administrative affairs in North Africa.
- (2)
- If the civil authorities are being allowed to function, is complete freedom allowed in this respect or are they being given directives by the military or required to report to the military on any of their functions?
- (3)
- What kind of proclamation or proclamations have been issued by the military authorities with respect to the relations between the civil and military authorities? It is assumed that the military authorities are at least controlling all means of communication and all entry and departure from the zone of military occupation, but information on this question would be of interest.
- (4)
- To what extent and under what circumstances do the military authorities expect to continue to keep an eye on the over-all situation in the occupied areas to safeguard against subversive activities?
- (5)
- What kind of an arrangement do the military authorities feel should be established for complete cooperation between the Department of State and the War Department toward coordinating their respective functions in the occupied area?
- (6)
- Does the War Department contemplate the conferring upon the local administrative officials of greater freedom of action than they now have, and, if so, how do they contemplate that this shall be developed?
- (7)
- Have the military authorities decided what French or other officials in the occupied area or areas are to be regarded as responsible for the proper functioning of the civil authorities—administrative and judicial—in the area or areas?
- (8)
- Does the War Department feel that the existing local authorities or authorities that may be substituted for them in key positions are to be trusted, or is it desirable to proceed on a day-to-day basis with the military at all times in complete control of the whole situation?
- (9)
- Have the military authorities taken any steps to set aside any laws or decrees of the Vichy regime? If so, what steps have been taken.
- (10)
- The United States exercises extraterritorial rights in Morocco and American citizens and protégés are subject to the jurisdiction of the consular courts. Has any thought been given to the question as to whether these officials should continue to function in these respects?
- (11)
- In what way can this Department be of assistance in any of these matters?
None of these questions is to be regarded as an effort to pry into the military operations or secrets but rather as a desire for information to enable the Department to determine for its own purposes in what respects it can be most helpful.