Occupation

Volume 94 Number 885 Spring 2012formed a modern departure from and a limitation on conquest. Previously,conquerors were at liberty to acquire good title over territory and to ‘dispose’, asVattel put it, of the inhabitants with equal licence. 17 The emerging new category of‘mere’ occupation was driven, it is commonly perceived, by a desire to imposehumanitarian restraints on the conqueror. 18There was, however, another potent motive for imposing proceduralrestraints on conquest. In Vattel’s 1758 The Law of Nations and Heffter’s 1844 DasEuropäische Völkerrecht der Gegenwart, 19 occupation was conceptualized as atransient, indeterminate phase preceding final decision in the field. To limit theliberties of the conqueror vis-à-vis the peaceful civilian populace and privateproperty during and after the campaign, Vattel proposed extending civilianimmunity to their property in addition to their person: 20In the conquests of ancient times, even individuals lost their lands ...thequarrel was in reality the common cause of all the citizens. But at present war isless dreadful in its consequences to the subject: matters are conducted withmore humanity: one sovereign makes war against another sovereign, and notagainst the unarmed citizens. The conqueror seizes on the possessions of thestate, the public property, while private individuals are permitted to retaintheirs. They suffer but indirectly by the war; and the conquest only subjectsthem to a new master. 21Vattel’s allusion to humanity is visible and appealing, but he was equally concernedwith ‘stability in the affairs of mankind’ and certainty in lawful acquisition byconquest. 22 Conquest, by itself, was insufficient to secure a stable transfer of title, butwas a necessary preliminary to acquisition pending the outcome of the war. Ratherthan devising a novel category, Vattel sought to ensure order. 23Vattel dealt with territory; post-Revolutionary Heffter was attentive topublic authority. In cases not involving complete subjugation, he wrote:By the mere occupation of the other side’s territory or part thereof, the invadingenemy does not immediately replace the former state authority, for as long asthe invader continues the war, when it is still possible that the fortunes of thewar will change. ...From a legal perspective, the defeat of the enemy does not17 Emmerich de Vattel, The Law of Nations or Principles of the Law of Nature Applied to the Conduct andAffairs of Nations and Sovereigns, trans. and ed. Joseph Chitty, T. & J. W. Johnson, Philadelphia, 1853,Bk. III, Ch. 13, S. 201.18 D. A. Graber, above note 7, pp. 13–14, 37. For Grotian justification of and limitations on conquest, seeRotem Giladi, Occupation, Humanity, Order: A Critique of International Humanitarian Law, unpublishedSJD dissertation, University of Michigan Law School, 2011, p. 159. See N. Bhuta, above note 14.19 August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart, E. H. Schroeder, Berlin, 1844.20 E. Benvenisti, above note 14; E. de Vattel, above note 17, Bk. III, Ch. 13, S. 201.21 E. de Vattel, above note 17, Bk. III, Ch. 13, S.200, reflecting a growing distinction between public andprivate spheres and an emerging view of war as a contest between rulers, elaborated four years later byJean-Jacques Rousseau in ‘The social contract, or principles of political right (1762)’, in George D. H. Cole(ed.), Rousseau’s Social Contract and Discourses, Dent & Sons, London, 1923.22 E. de Vattel, above note 17, Bk. III, Ch. 13, S. 196 (stability); S. 194–195 (conquest acquires lawful title).23 Ibid., S. 197–198.85