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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism

Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism

Chapter:
(p.538) 41 Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism
Source:
Realizing Utopia
Author(s):

Orna Ben-Naftali

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199691661.003.0041

The international legal order seeks to regulate belligerent occupation. This regulation is classified as part of international humanitarian law. Accordingly, it reflects the sensibility of ‘the lesser evil’: the very phenomenon of occupation is assumed to be a necessary evil, and on the basis of this assumption, the law seeks to regulate it in a manner designed to minimize its painful consequences for the occupied civilian population and its disruptive effect on the international order. The very reference to ‘the lesser evil’ raises a problem. This is partly because ‘evil’ — rather than ‘good’ — is accepted as the proper realm of thought and action and partly due to the strong affinity thereby suggested to cost-benefit analysis. The first reason tends to curb our political imagination; the second, to pollute our moral and legal reasoning, at least in the context of humanitarian and human rights concerns. In a ‘realistic utopia’, the law of belligerent occupation would work to prevent both effects. This chapter assesses whether the legal regime of occupation responds adequately to these challenges, identifies areas where change is required, and proposes ways to introduce it.

Keywords:   international order, international humanitarian law, law of belligerent occupation

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