Justice under Occupation
The emergence of military occupation as a distinct phenomenon was bound up with considerations of justice. Those seeking its deepest historical roots tended to trace it back to the Roman right of postliminium, that is, to the ‘legal principle or right by virtue of which a person taken captive in war, upon his recapture or his return to his own country, was restored to his former civil status’.1 As even many of those who cited this origin noted, the comparison of the modern conception of occupation with this Roman right relied upon a ‘somewhat distant analogy’.2 The attraction of the term and the source lay in the authority of Roman law and the analogy with the returning sovereign anxious to assert his former status, though the application of the doctrine to the sovereign as well as the citizen was a later development.3 The right of postliminium was consequently elaborated in terms of what should happen at the end of occupation; that could not be determined without some judgement upon which acts of the occupier, or acts performed under the authority of the occupier, were to be recognised as valid. Justice and the rights which it secures were not regarded as wholly suspended. Unlike the captive Roman, the inhabitants of occupied territory did not become slaves, they were not assumed to have lost their title to property nor were their relations with each other dissolved.4 Unlike the Roman captive or the sovereignty of the legitimate power, however the latter is construed, their rights are not automatically in abeyance or some state of suspension pending their restoration.
However, their rights have become precarious, subject to interference by the occupier or simply deprived of the sanction that had previously guaranteed them. Both direct suppression and violation of their rights or failure to guarantee rights are destructive of justice. It is, however, the former that has tended to form the focus of discussion. It was this that Carl Schmitt seized upon in order to expose what he saw as the refusal of nineteenth-century jurists to recognise the analogy between military occupation and the state of emergency in a domestic setting. According to Schmitt, these jurists were, despite