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Rights and Duties of Occupied Populations

So far, I have focused on what Occupier may or may not do to occupied populations. In this section, I address the issue of the grounds upon which, if any, the latter owe an obligation to the former to comply with its directives. If Occupier has a justification for maintaining a military presence in B, and if its officials’ directives satisfy the requirement that they should enable occupied civilians better to enjoy their rights and fulfil their duties, then those directives are binding and occupied populations are under a duty to comply. Note that they owe that duty not just to one another (as grounded in a prior moral duty to respect those moral rights which officials’ directives protect in law), but also to those officials themselves, who (as I argue in CW, s.1.4) have a right not to be interfered with when carrying out the tasks of government.

On the Duty To Comply with an Unjust Occupier’s Directives

Suppose, however, that the occupation is unjust. May civilians resist? Not according to the law, particularly if their defeated regime has surrendered and concluded an armistice with Occupier, following which it has dissolved itself. Whether or not the defeated regime was morally legitimate and thus had proper authority to conclude the armistice is irrelevant. Nor, according to the law, may civilians act in such a way as to prevent Occupier from exercising its legal rights and fulfilling its legal duties qua occupying power. For example, they may not commit acts of sabotage or use their protected status as civilians to approach occupying combatants and kill them. If they do, Occupier’s officials may punish them as if they were common criminals, indeed its combatants may kill them in self-defence. In a well-known passage on guerrilla warfare, Michael Walzer discusses the example of French partisans who, during the occupation of France by German in 1940—44 disguised themselves as peasants and were thus able to come close to and kill German combatants. On standard interpretations of the laws of occupation, they were deemed to have betrayed the armistice agreement passed between the Vichy regime and Germany and thus to commit a grievous breach of faith. At the same time, Walzer notes, to the extent that individuals are not subsumed under the decisions of their government, and to the extent that the German Occupation was unlawfully conducted, those partisans could be deemed to have acted legitimately. Yet, those German combatants who attempted to kill them in self-defence, and those officials who punished them for murder, also had a justification for so acting, since they could not hope to ensure and restore public life under the constant threat of attack. As Walzer put it, ‘resistance is legitimate, and the punishment of resistance is legitimate. That may seem like a simple stand-off, and an abdication of ethical judgment. It is actually a precise reflection of the moral realities of military defeat’.[1]

Insurgency is an unavoidable feature of occupation. On Walzer’s account, it seems, resistants, or insurgents, and occupiers are morally on a par, even if the occupation is unjust. As I suggested in s.3.3.3, I do not think that this is right. For a start, the fact that Occupier is unjust means that occupied civilians are not under a duty to its officials not to resist their rule by force or stealth, nor are they under a duty to its forces to provide them with the resources they need to function as an occupying force.

To be sure, the point that occupied civilians do not owe a duty of allegiance to Occupier is compatible with the claim that they can sometimes be under a duty to obey its directives. And this claim in turn might provide support for Walzer’s view that unjust occupying forces act legitimately when punishing resistants who kill their combatants.

Here is an interesting, though in the end unsuccessful, argument in support of that claim. Suppose that a group of us pool some of our resources in common and set out on a hiking trip. We all agree that, in the event that we will be attacked by highway robbers, we will do what John decides, for he is an experienced hiker who knows the area well and we trust his judgement: put differently, we confer on John the authority to decide how best to preserve our commonly owned resources.^ Lo and behold, two days into our hike, we are set upon by robbers who threaten to kill us unless we hand over our money. John decides to comply. In the light of our unanimous decision to follow his lead, I would wrong both John and all other members of the groups if I were singlehandedly to override John’s decision by resisting the robbers. If that is correct, B’s occupied civilians owe it both to one another and to their officials not to resist the decision made by B’s regime to hand over power to A’s officials. Or so the argument claims.

I remain unconvinced. Political regimes never secure unanimous consent for their decision and are hardly ever in a position to secure consent from their citizens whilst trying at the same time to repel an invasion. However, suppose that they do secure such consent. Even so, the argument remains limited in scope—though understanding why that is so provides us with the right kind of justification for the view that occupied civilians must sometimes comply with Occupier’s directives. The rights which B’s officials surrender to A’s officials on behalf of occupied civilians are of two kinds: jointly held rights over communal goods such as collectively owned property or sovereignty rights; and individual rights, such as the right to freedom of movement (which might be threatened by curfew), rights over privately owned resources (which might be threatened by requisitions), or rights not to be tortured, arbitrarily imprisoned, summarily killed, and so on. Even if civilians consent to have their individual rights protected under A’s rule, the mere fact that they have consented does not put them under a duty to B’s officials or to their fellow citizens to comply by those of A’s directives which are relevant to those rights. Should they change their mind as to the appropriateness, for the protection of those rights, of B’s decision to surrender, then prima facie they may do so. Similarly, even if I undertook at time tlto respect John’s decision, when faced with the robbers, as between giving them my money or letting them shoot me, surely I am not thereby under a duty to John or indeed to the rest of you not to revoke that commitment at t2 when faced with the robbers.

Surprisingly perhaps, the point holds even when jointly held rights are at issue. For it is a central assumption of this book that individuals are not under a duty to divest themselves of the resources and freedoms which they need to lead a flourishing life for the sake of protecting the rights of others—even when those rights are jointly held. By implication, the fact that civiliansB entrust their regime with the task of government does not bind them to its decisions if their prospects for a flourishing life would be undermined by their regime’s decision to surrender power over B’s territory to A’s forces. Likewise with the robbers’ case. That I undertook at tl to entrust John with the task of deciding to surrender wealth over which I have some right is not enough to place me under an obligation at t2 to abide by his decision if, in so doing, I shall suffer human-rights violations. [2]

That being said, and as Walzer rightly notes, in some cases a decision by some occupied civilians to resist occupying forces’ violations of their rights will result in severe harm to their compatriots. In other cases, those directives might in fact help protect those rights. Failure to comply under those circumstances would be morally wrong—not vis-a-vis Occupier, but vis-a-vis other occupied civilians. The fact that they consented to their regime’s making such decisions on their behalf in the first instance is irrelevant to the duty to comply.[3]

Where does this leave Walzer’s claim that occupiers and resistants both act legitimately when exercising force against each other and that the former are nevertheless permitted to punish the latter for so acting? Note, first, that resistants may well be under a duty to their compatriots not to kill the occupiers. However, second, even if they act impermissibly, it does not follow that occupiers are justified in punishing them. True, resistants’ acts of killing make it very difficult for occupiers to secure order and civic life. Ex hypothesi, however, the occupation is unjust. The right response, for occupiers, is not to inflict further harm on civilians, but simply to leave.

But now here is a twist. Suppose that A occupies B unjustly but wages a just war elsewhere, against C. Consider the following example. In June 1940, under the terms of a secret protocol which formed part of the Molotov—Ribbentrop Pact of Non-Aggression signed by the USSR and Germany in August 1939, Soviet forces invaded all three Baltic states, eliminated their officials, and installed Soviet cadres in their place. In June 1941, Germany breached the Pact and invaded the USSR. The latter ended up occupying and annexing the Baltic states (as well as Romania, Bessarabia, and Eastern Poland) whilst at the same time fighting a war of self-defence against German forces. The Soviet occupation of the Baltic states was clearly unjust (as well as illegal), whilst its war of self-defence against Germany was just— or at any rate, had a just cause. Was the Soviet regime morally justified in requisitioning resources from the Balts towards its war against Germany? I do not think so, precisely because its occupation was unjust. In taking from occupied civilians the resources (military and otherwise) which the latter need to resist the occupation and in so doing restore their fundamental civil and political rights, A compounds its initial wrongdoing of unwarranted aggression with the wrongdoing of a strengthened unjust occupation.

And here is a further twist. In 1941, the German Army, totalling about 3.5 million men, invaded the USSR, including the Baltic States. Populations of those states, on any account of the just war, had a just cause for resisting that invasion.

Did the Soviet occupying authorities have the right to fight the Germans and, to that end, to requisition resources from local populations? Were the latter under a duty to comply with those requisition orders?[4] It might be tempting to answer the first question in the negative, on the grounds precisely that the Soviet were unjust occupiers. Tempting, but erroneous: as I noted in s.2.2, an illegitimate regime might in fact better enable those who are de facto subject to its directives to exercise their human rights and fulfil their correlative duties. This is why (I also noted) an illegitimate regime such as Stalin’s did have the (Hohfeldian) power to organize armed resistance against the Nazi’s invasion. Their point applied to Soviet citizens, but it also applies here to occupied Baltic populations. It is of course contingent on it being the case that resisting Germany’s invasion in compliance with the Soviet occupying authorities’ directives did enable the populations of the Baltic states to do better at the bar of their human rights and duties than they would have done under a German occupation. From what we now know, the Nazis had planned to work and starve to death all populations of the USSR, including populations annexed by the latter after 1939, with a view to have those territories settled by Germany; by contrast, Stalin had ‘merely’ aimed to subject them to his totalitarian rule, which (in this case) did not include wholesale extermination. Furthermore, it is also pretty clear that the Baltic citizens would simply not have been able to resist the German invasion on their own. On both counts, the Soviets did have the power to issue the relevant directives, and Baltic citizens were under duties to one another to comply.

Prima facie, then, unless As requisition orders enable occupied citizensB better to exercise their human rights and fulfil their correlative duties, the latter are justified in failing to comply with those orders, so long as A’s retaliatory measures in the face of those acts of disobedience are not disproportionate to what rebellion would achieve. To be sure, failure to comply with requisition orders in the light of A’s refusal to withdraw its occupying troops might leave those for whom A fights (whether citizensA in a war of self-defence, or third parties in a war of intervention) exposed to C’s unjust threat. The question then is whether occupied citizensB are under a duty of assistance to those individuals to comply with A’s policy of requisition even though the policy is unjust. I do not believe that they are. Most obviously, when A wages a self-defensive war against C, citizensB are not under a duty to help those citizens of A who significantly contribute to A’s unjust occupation of their territory. But nor are they under an obligation to help those who, though not supporting A’s occupation, are vulnerable to C. For by diverting towards the latter resources such as munitions, means of transport, food, oil, etc., occupied civilians are depriving themselves of the wherewithal to renew their (just) war of resistance against their (unjust) occupier.

To be sure, occupying regimes can be more or less harsh towards those over whom they govern. However, and returning to our example, even if one takes the view that the indigenous populations of the Baltic states had a less horrendous time at the point of Soviet guns than Ukrainians did under German boots, the former were not under a duty to the latter to help the USSR repel the German invasion. As we saw in s.1.2, individuals have a personal prerogative to confer greater weight on their own prospects for a flourishing life, for which the enjoyment of fundamental civil and political rights is a necessary condition, than on other agents’ similar prospects. By implication, they are not under a duty to continue to live under a rights-violating dictatorial Occupier, or (if their war of resistance against Occupier would be unsuccessful anyway) to incur even more hardship, for the sake of ensuring that the latter’s own citizens do not endure totalitarianism.^

My overall conclusion in this case, thus, is that Baltic citizens were under a duty to comply with the Soviet’s directives to fight German troops in the Baltic states, but were not under a duty to comply with those directives as pertained to the Soviet war effort in Russia itself. At first sight, this seems to contradict the cosmopolitan principle that individuals are not permitted to confer greater weight on their compatriots’ fundamental rights than on strangers’ similar rights: on cosmopolitan grounds, a citizen of Estonia was not justified let alone obliged to give priority to a fellow Estonian over a Russian (assuming that the latter was innocent of the Soviet occupation of Estonia). However, there is a crucial difference between the two cases. In the other-defensive case, where Estonians are asked to give resources to the Soviets so that the latter may defend Russians, Estonians are entitled as per the no-undue-sacrifice proviso to give priority to their own fundamental human rights over the Russians’ similar rights, and thus to hold on to their resources in defiance of Soviet’s directives. In the communal self-defensive case, by contrast, the resources which the Soviet are seeking to extract from Estonians serve to defend the latter’s human rights from a (ex hypothesi) worse violator. Estonians, who would themselves benefit from the Soviets’ defensive war against Germany in Estonia thus cannot refuse to help their compatriots (by refusing to comply with requisition orders) on the grounds that those resources would be better used to fight the unjust occupier: the point of requisitions is precisely to wage that particular fight. That—and not patriotic preference—is why Estonians in this case are under a duty to one another to comply.

  • [1] Walzer, Just and Unjust Wars, 176—9.
  • [2] I owe this example to Patrick Tomlin. Both he and Will Kymlicka pressed me hard on this particular issue, for which I am grateful.
  • [3] See Walzer, Just and Unjust Wars, 178. One might think that it would be appropriate for thosecivilians to bear the costs of partisans’ war of liberation, from which they would benefit, in the formof greater exposure to reprisals. I assume in this paragraph that the harms endured by those civiliansexceed those which they can be legitimately asked to incur for the sake of liberation. For the view thatexposing the beneficiaries of a military action to a risk of death is sometimes permissible, seeJ. McMahan, ‘The Just Distribution of Harm Between Combatants and Noncombatants’, Philosophy& Public Affairs 38 (2010): 342—79; Fabre, Cosmopolitan War, ss.2.4, 4.4, and 5.5.2. In CW (s.4.4.2)I address the question of whom partisans may kill should they choose rightfully to resist Occupier—their own, collaborationist compatriots, or members of occupying forces. In this section however, myfocus is on the conflict between insurgents and occupiers.
  • [4] I owe these penetrating questions to an anonymous reader for Oxford University Press. For thehistorical background to my discussion of this case, see Weinberg, A World at Arms, ch. 7. For a discussion of the law of occupation as was breached in the Baltic States, see Benvenisti, The InternationalLaw of Occupation, 67—8.
 
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