Occupation

Volume 94 Number 885 Spring 2012instrumental to its conquest. A ‘conquering or occupying power’ was ‘the victoriousgovernment’ (Articles 9 and 26).For Lieber, restraints on the occupant and its authority drew on, and weredesigned to serve, the same purpose as any other restraint on belligerents. His senseof occupation and conquest was embedded in his sense of humanity, in its service tovocational order. The Code therefore prioritized the finality of war in occupiedterritory. Within the territory, the occupant’s temporary authority was preparatoryto the new order that the conqueror would impose once it had ‘resolved to keep thecountry ...as its own’ (Article 33). It was not a means of instating a surrogate,provisional order. Despite his sympathy to national liberation, Lieber was suspiciousof resistance ‘after having been conquered’. 185 The harsh treatment that the Codeprescribes for the spy or war rebel in occupied territory is rooted in the ‘peculiarlydangerous character’ of the activities of ‘this renewer of war within an occupiedterritory’. 186 The authority of the occupant, unconstrained, serves the reinstatementof peace, stability, and a permanent order within the territory: conquest brings thewar to its conclusion. 187 The conqueror’s authority serves humanitarianimperatives – in Lieber’s sense of humanity. 188Outside the territory, Lieber’s concepts of occupation and conquest weresine qua non to inter-national order and the constant ‘human contest’ that itgenerates to catalyze human progress under modern conditions (Article 29). If warcatalyzes a healthy competition between modern nations, conquest – through whichthe victor’s will, territorial or otherwise, is imposed on the vanquished 189 – is theinstrument that harnesses war to order and progress. Without the right of conquest,the occupant cannot accomplish its war aims, and war cannot regenerate the internationalorder. Recognition of the right of conquest, and consequently, the broadauthority of the occupant, are essential to the progress of human civilization and thevocation of humanity. Here lies the justification for both the unfettered liberty of theconqueror and civilian suffering. Neither is incidental; both are instrumental tovictory through occupation. Once victory has been decided, and the conquerorallowed to accomplish its aims, peace can be reinstated and order restored. 190 Forthe vocation of humanity, conquest was an imperative of progressive humanity, bothlogically and as a matter of historical necessity. 191185 F. Lieber, above note 166, pp. 283–285.186 Ibid.; Lieber Code, Art. 52.187 Lieber Code, Art. 153 (‘victory in the field ...ends the strife and settles the future relations betweenthe ...parties’).188 Lieber to Thayer, 3 February 1864, in T. S. Perry, above note 43, p. 340 (‘nothing can decide but victory inthe field. The more efficient, therefore, the army is made, and the more unequivocally [sic] the conquest ofthe South, the better for all, North and South’).189 Francis Lieber, No Party Now But All for Our Country, Westcott, New York, 1863 (‘Either the Northconquers the South and re-establishes law, freedom, and the integrity of our country, or the Southconquers the North...and covers our portion of the country with disgrace and slavery’).190 F. Lieber, above note 29, p. 658 (‘the ultimate object of the war ...among civilised nations is always peace,on whatever conditions that may be’).191 Francis Lieber, Essays on Property and Labour, Harper, New York, 1842, p. 132 (‘present political societiesarose out of conquest’); his South Carolina inaugural lecture appreciated ‘the conquests which our own agemay have made in the cause of civilization’: D. C. Gilman, above note 7, p. 185.115