Occupation

R. Giladi – A different sense of humanity: occupation in Francis Lieber’s Codehowever. It argues that, while the Code is undoubtedly crucial to understanding howthe modern law of occupation evolved, a different sense of humanity pervades itsprovisions. Lieber’s sense of humanity in war and occupation is not comparable tothe individual-oriented sense of humanity associated with contemporary normssuch as Article 27 of the Fourth Geneva Convention. Identifying his sense ofhumanity therefore paves the way for critical reflections on the forces, ideas, andvisions that shaped the contemporary law of occupation; it also raises questions onhow that law is historicized.In order to trace Lieber’s different sense of humanity, I first place hiscontribution to the development of the law in historical context, suggest a numberof methodological imperatives for approaching the Lieber Code, and provide somebackground on its making. Next, I discuss the sense of humanity underpinningLieber’s political theory. Here I present his views on the relations betweenindividuals, society, and the state; nationalism and inter-nationalism; and war andpeace. These are essential for deciphering the sense of humanity underpinning theCode’s provisions. I move on to demonstrate how these views inform Lieber’sconcept of occupation – and his sense of humanity in occupation. In evaluation ofLieber’s different sense of humanity in occupation, I then argue that hishumanitarian imperative was not the protection of individuals but, rather, thepreservation of a modern vision of international order. In the conclusion, I discusssome implications of these findings.Approaching LieberA number of preliminary matters need to be addressed before delving into Lieber’ssense of humanity. First, we need to consider its historical intellectual context. Weneed, in other words, to assess his ideas against some baseline in the development ofthe modern concept of humanity in war and occupation. Next, identifying Lieber’ssense of humanity requires a broad inquiry into his other works and the context ofthe Code’s making. These help expose, and avoid, some prevalent misconceptionsabout the Code, its authority, and its relevance to the law of occupation.Occupation before LieberThe very advent of the modern occupation category commonly represents law’shumanization and progress. Existing accounts trace its rise to late nineteenthcenturycodification of ideas and practices seeking to limit the right of conquest inthe preceding two centuries: ‘The idea of occupation of enemy territory was formedwhen the right of conquest was rejected as too brutal’. 16 The occupation category16 Ernest Nys, ‘Francis Lieber: his life and his work’,inAmerican Journal of International Law, Vol. 5, No. 1,1911, pp. 84, 355, 379; D. A. Graber, above note 7, p. 14; E. Benvenisti, above note 14; Sharon Korman, TheRight of Conquest: The Acquisition of Territory by Force in International Law and Practice, OxfordUniversity Press, Oxford, 1996; Erich Kussbach, ‘Conquest’, inEncyclopedia of Public International Law,Vol. I, North-Holland, Amsterdam, 1992, p. 756.84