From an Unjust War to an Unjust Occupation

So far, however, I have assumed that A becomes an occupier as a result of waging a just war against B. Suppose now that at time t1, As regime orders A’s army to invade B’s territory without just cause. At t2 B’s regime surrenders and A’s armed forces occupy B’s territory. Ex hypothesi, in so far as combatantsA were fighting an unjust war against B at t1, they lacked the right to kill combatantsB in prosecution of that war. By the same token, they lack the right to stay in B once the fighting has ceased. Consider a domestic analogy. Andrew wrongfully breaks into Ben and Charlotte’s house and orders them at gunpoint to hand over all their belongings. Andrew decides that he might as well use the house as a base for his criminal operations. He is willing to have Ben and Charlotte stay there provided they make themselves scarce and supply him with the resources he needs to keep his business going. He makes it clear that he will not hesitate to use lethal force to ensure their compliance. They for their part justifiably believe that it is safer for them and their children to stay in the house: it is not as if they have anywhere else to go, and at least, that way, the children will remain warm and fed. Clearly Andrew lacks the right to remain in the house: neither Charlotte nor Ben are under a duty to him to provide him with any assistance at all, or a duty not to try to kick him out. In fact, they would do him no wrong by killing him should the opportunity arise and should this be the only way to get rid of him.

The same applies to Occupier. Ex hypothesi, it does not have a just cause for invading B’s territory, from which it follows that it lacks a just cause for remaining there (unless—as we shall see below—circumstances change in such a way that it comes to acquire a justification for staying). To the extent that B’s members have not threatened the rights of A’s members to territorial integrity and political sovereignty, and to the extent that they are not posing an ongoing threat either to those rights or to the rights of fellow members, they are not liable to lose their own sovereignty rights over their territory. More precisely, they are not liable to lose the right to govern themselves, to having their freedoms curtailed, and to the appropriation by occupying forces of their privately and publicly owned resources.

Some might object that B’s citizens are liable to incur those burdens if their regime has explicitly transferred its powers over B to A’s forces following its military defeat (as happened in some European countries whose regimes acceded to

German occupation during the Second World War). In this case (my opponent might press), the aforementioned domestic analogy does not work since B’s regime has authority over B’s population in a way that Ben does not have over Charlotte.

However, the objection strikes me as implausible. Consent given under the duress of impending military defeat at the hands of an unjust aggressor cannot bind B’s officials and citizens to comply with the directives enacted by As officials— any more than powerful insurgent factions within a democratic community can elicit valid consent to the imposition of a dictatorship following an irrepressible coup d'etat.

That very last point is worth stressing: on my account, there is no morally relevant difference between a foreign unjust occupier and an indigenous dictatorial regime. This is of a piece with the key tenets of my cosmopolitan account of justice. For on that account, you recall, individuals have sovereignty rights on two grounds: as a means to ensure that they enjoy the freedoms, and have access to the resources, which are constitutive of a flourishing life, and in fulfilment of their personal prerogative to constitute political associations once they have met their obligations of justice to distant strangers. The duty to respect those rights, in turn, is held by all and sundry, irrespective of borders. In so far as individuals’ membership in this or that political community is morally irrelevant to the conferral of those rights, rights-violators’ membership in this or that political community is also irrelevant to the moral status of their dereliction of duty. Violations of (in this instance) sovereignty rights are not the more or less grievous for being committed by foreigners as opposed to compatriots.

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