Symposium : Foreign Occupation and International Law

• Bhuta, Nehal

Abstract

In this article, the author sketches a preliminary conceptual history of the idea of belligerent occupation by situating its emergence in the particular conditions of the European land order as it evolved after the Congress of Vienna in 1815. He argues that the development of <it>occupatio bellica</it> as a legal institution can be seen as part of the wider effort to re-found and restore the concrete spatial order of the <it>jus publicum Europaeum</it>, in response to the twin perils of revolutionary war and wars of liberation. He develops an analogy between the classical concept of belligerent occupation and the Roman institution of commissarial dictatorship. He contends that the US occupation of Iraq is accurately regarded as a ‘transformative’ occupation, which is analogous to a shift from commissarial to sovereign dictatorship. Sovereign dictatorship and transformative occupation are fraught with political risk, as their success depends on a precarious dialectic of subordination and legitimation. <qd> When the French in 1792 invaded Italy, they had no scruple in summoning the invaded populations to repudiate all allegiance to their sovereigns...Nys may tell us that the French generals ‘limited themselves’ to breaking the ties between invaded peoples and their princes and to convoking assemblies to determine the form of government. There is no doubt that the assemblies would never have been permitted to reinstate the princes, or to establish any form of rule distasteful to the Republic; it was practically a reversion to the old type of conquest by occupation; the later decree [...] directing the military authority to suppress all existing authorities, taxes, feudal government and privileges, in reality goes very little further. The whole drastic proceeding was a consequence of the breaking away of France from the sphere of international law, and of her desire to replace it by a new Law of Nations of which the first article should be – ‘no state may be organized on any but a soi-disant republican system.’ It was not that a monarchical state was necessarily, as she expressed it, her enemy; it was not even a lawful enemy.<cross-ref type="fn" refid="fn1">1</cross-ref> </qd>