Antinomies of Transformative Occupation
European University Institute; European University Institute - Department of Law (LAW)
October 1, 2005
European Journal of International Law, Vol. 16, No. 4, pp. 721-740, 2005
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 occupatio bellica as a legal institution can be seen as part of the wider effort to re-found and restore the concrete spatial order of the jus publicum Europaeum, 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.
Keywords: belligerent occupation, transformative occupation, international law, dictatorship
Date posted: July 21, 2009