Occupation

R. Giladi – A different sense of humanity: occupation in Francis Lieber’s Coderelationship: the occupant’s position, and authority, is unilateral. Lieber assigns noncombatantsindividually, and the occupied population collectively, no independentvalue, and recognizes in them no interest.Occupation according to Lieber: instrumentality to imperativesof orderThe Occupying Power’s duty to administer the territory, and a status-based conceptof protection predicated on human dignity, represent the two conceptual bases forhumanitarian restraints in subsequent developments of the law of occupation. In theHague Regulations, the duty temporarily to administer the territory expresses therole of the occupant as a provider of surrogate order, and serves as a humanitarianjustification of its authority. The Fourth Geneva Convention retains this conceptualbase, but emphasizes protection based on human dignity and elaborates restraintson treatment of civilians. Their absence from the Lieber Code is not coincidental.The Code’s concept of occupation does not represent a stage antecedent to theseconceptual bases of humanity in occupation. Rather, in the Code, Lieber reacted tothe emergence of these conceptual bases – human dignity and transient, surrogateorder – for restraining the liberties of conquest.In identifying the whole citizenry of the belligerents as enemies, Lieberdirectly rejected Rousseau’s doctrine, which became a theoretical keystone of thesense of humanity in occupation under present-day law. In The Social Contract,Rousseau argued:War is then a relation, not between man and man, but between State and State,and individuals are enemies only accidentally, not as men, nor even as citizens,but as soldiers; not as members of their country, but as its defenders. Finally,each State can have for enemies only other States, and not men; for betweenthings disparate in nature there can be no real relation. 169Rousseau and Lieber alike harnessed reason to find in the public nature of modernwar a vehicle of moderation. Both used the necessity device to restrain war amongcivilized nations. Yet, while Rousseau discerned in ‘the practice of civilized people’the principle that once enemies ‘lay [their arms] down and surrender, they cease tobe enemies or instruments of the enemy and become once more merely men, whoselife no one has right to take’, 170 Lieber’s non-combatant, even if unarmed, even ifinoffensive, forever retains his or her enemy character and is ‘made to suffer’ onaccount of the place that he or she occupies in the political organization of the internationalorder, itself an expression of his or her humanity. For Lieber, there could beno autonomous, individual ‘civilian’ status as a basis of protection.169 J.-J. Rousseau, above note 21, p. 11. See E. Benvenisti, above note 14, pp. 625–626. The Code rejects this inArts. 20 and 21. For Lieber’s ridicule of Rousseau, see L. R. Harley, above note 51, p. 126; F. Freidel, abovenote 30, pp. 154–155.170 J.-J. Rousseau, above note 21, p. 12.112