Preservation of status quo/Transformation for Development: The Dialectics of International Law of Belligerent Occupation

Matilda Arvidsson, Lund University

Abstract

International law of belligerent occupation is traditionally understood as regulating the behaviour of occupying powers, limiting their powers, imposing obligations on them while at the same time securing rights for the civilian population subject to occupation. Two seemingly contradictory interpretations of the occupying power(s) role is pursued in state practice as well as in international law doctrine; one strand argues that belligerent occupation powers should preserve status quo within the occupied territory, insisting on a conservative interpretation of the law. Another strand argues that international law of belligerent occupation must be interpreted towards a humane end; occupations offer (unprecedented) opportunities to transform occupied societies: to wit, the argument is to pursue development through belligerent occupation. In the wake of the occupation of Iraq 2003–2004 these debates arose in popular press and academic discourses. International law of belligerent was argued to be outdated, and a jus post bellum was called for: a continuation of jus ad bellum and jus in bello which could encompass not only international law belligerent occupation but also the field of law and development. Yet, a study of the history of international law of belligerent occupation shows that the ‘out-of-date’ argument was far from new. It emerged already before (!) the field of international law of belligerent occupation was firmly formalized in the mid/late 19th century. Further, a study of state practices of belligerent occupations discloses a pattern where states have pursued the preservationist argument when subjected to belligerent occupation, while turning to the transformationist argument and transformative practices when pursuing belligerent occupations themselves. The study which I will present shows that the (seemingly) opposite strands preservation/transformation are inherent in international law of belligerent occupation and as such reflecting something very fundamental about international law: it is inherently paradoxical and dialectical.