The Origins of the Concept of Belligerent Occupation
Tel Aviv University, Faculty of Law
Law and History Review, Vol. 26, No. 3, 2008
The law of occupation imposes two kinds of obligations on an army that seizes control of enemy land during war: the obligation to protect the lives and property of the invaded population and the obligation to respect the sovereign rights of the ousted government. These two principles, which reflect the private and public aspects of the law, stem from unrelated intellectual, social, and political roots. This Essay tracks the parallel yet separate evolution of these two aspects of the law until they merge in the text of the 1899 Hague Regulations. The private aspect, the principle of immunity of private property of enemy nationals, was first raised by Vattel and Rousseau in the second half of the eighteenth century, as an extension of the basic distinction between combatants and non-combatants. The public aspect reflects the crystallization of the idea of sovereignty as a collective claim for exclusive control over territory and nationals, inspired by the ideas of the French Revolution and sustained by the balance of power that emerged in Europe at the time. The Essay traces the development of the notion of belligerent occupation as a regime distinct from conquest and its transformation from an idea into a norm of general international law.
This paper is available from the website of the Law and History Review.
Keywords: Law and History, International Law, Laws of War, jus in bello, Law of Occupation
JEL Classification: K33, K19
Date posted: February 24, 2008