JUSTIFYING TRANSITIONAL FOREIGN ADMINISTRATION
TFAs as a Form of Occupation
I noted above that transitional foreign administrations are deployed following a peace settlement to which belligerents typically (viz. Bosnia and Herzegovina and Kosovo) though not always (viz. East Timor) consent. To the extent that the establishment of the administration is a component of the settlement, and to the extent that belligerents take part in the peace negotiations and sign on the resulting settlement, as was the case with the Dayton Agreement, parties can be deemed to consent to the administration. To be sure, more often than not, they do so under the threat of coercion. However, as we saw in s.4.3, the fact that parties to a peace settlement have been coerced by military action to come to the negotiating table does not in itself invalidate their consent to the settlement if its terms are independently justified. The crucial question, then, is whether transitional foreign administrations admit of an independent justification.
In s.1.2, I argued that states are legitimate if and only if, through the laws which they vote and enforce and the executive decisions which they make on the basis of those laws, they respect the fundamental rights of both the states’ members and outsiders. Moreover, it is precisely because their directives provide agents with better conditions for the protection of their moral rights and the fulfilment of their moral duties than they would have in the absence of any state or than if they were included in some or other feasible state that agents have a reason to regard those directives as binding. The point applies whether the right to govern is exercised by domestic or foreign political actors. To the extent that a transitional foreign administration provides the services which governments normally ought to provide, and that in so doing it enables those who are subject to its directives better to exercise their rights and fulfil their obligations, and thereby to enjoy conditions for a flourishing life, its officials have the morally justified power to govern. One might think that, in so far at the administration is foreign, and that members of the target community thus do not enjoy full political rights, which are a subset of human rights, its officials do not have that power. However, it is precisely because those individuals are not as yet in a position to take on the reins of government that the foreign administration is called in. If it does provide conditions for effective self-government by local actors, then it fulfils the legitimacy condition for government in general.
Let me put the point somewhat differently. Sometimes, the regime of a war-torn community is not yet able to secure for its members the conditions under which they can have a flourishing life. Granted, there are cases where the evidence in support of that claim is not clear-cut. Were that so, and even if as a matter offact that regime is indeed unable to do what it must do in order to have the power to govern, outsiders ought not to intervene unless specifically asked to do so. Sometimes, however, the evidence is there to see: inability of erstwhile enemies to muster enough trust in each other to govern effectively, rampant corruption at all levels of government, skyrocketing rates of unemployment, particularly among young men who thus become prime recruits for criminal gangs, endemic violence, rising mortality rates as a result of a complete breakdown of the healthcare system, and so on.
The human rights violations which are part and parcel of this kind of political and social breakdown provide outsiders with a just cause for assuming authority over it. The claim that there can be such a just cause draws strength from justifications for so-called transformative occupations, of which Germany between 1945 and 1949 and Iraq in 2003—04 are paradigmatic examples. In surrendering, German leaders agreed on behalf of their fellow citizens, though without the latter’s formal authorization, not just to a military occupation but to the Allies’ ‘supreme authority’ over their country. This included any measures which the occupying powers deemed necessary for the preservation of peace and security. More recently, and admittedly far more controversially, the US-led coalition’s occupation of Iraq following the defeat and fall of Saddam Hussein’s regime in 2003 saw the so-called Coalition Provisional Authority embark on a wide range of reforms. ^
It is precisely because it consists in reshaping the occupied community politically, economically, and socially—above and beyond the constraints set out by the
!5 The terms of the surrender were set out in their final form by F. D. Roosevelt, W. Churchill, and J. Stalin at the Yalta Conference in February 1945. See http://avalon.law.yale.edu/wwii/yalta.asp (accessed on 15/01/2016). For a concise account of the measures taken by occupying forces, see Chesterman, You, The People, 25—37. For a detailed account of that occupation, see MacDonogh, After the Reich. For the case of Iraq, see (e.g.), Allawi, The Occupation of Iraq, Fox, ‘The Occupation of Iraq’.
laws of military occupation which we examined in s.3.3—that this kind of occupation is called transformative. Measures taken by transformative occupiers in Germany and Iraq have included the provision of a constitutional framework, the establishment or rebuilding of a financial sector, reforms of the police and judicial system, and the abolition of oppressive institutions such as child labour.
That there sometimes is a just cause for transformative occupation flows from arguments in favour of military occupation traditionally understood. As we saw in s.3.2, a military occupation is justified in the first instance as a self-defensive measure against the occupied community whose regime conducted an unjust war against A, or as a measure to protect oppressed minorities from the resurgence of unjust violence at the hands of their compatriots. On both counts, it is justified as a means to respect and promote human rights. If transformative measures of the kind just described are a necessary means to respect and promote human rights, then they are justified.
Furthermore, transformative occupation can also be justified by appeal to cosmopolitan justice. At the bar of cosmopolitan justice, you recall, all human beings wherever they reside, have rights to the freedoms and resources which they need in order to lead a flourishing life; moreover, territorially bounded state institutions are an important mechanism through which to discharge universal obligations of justice; finally, once those obligations are discharged, individuals have the right to shape their collective future through membership in political associations. Accordingly, they enjoy civil, welfare, and political rights, not merely against their own government, but also against foreign actors, including foreign states. Accordingly, under post-conflict circumstances A, as Occupier, must to the best of its ability act in the same way towards non-liable occupied civiliansB as it does towards its own. Thus, in so far as justice requires of it that it should secure the material needs and fundamental freedoms of its citizens, it also requires of it that it secure the material needs and fundamental freedoms of those over whom it exercises temporary jurisdiction. Cosmopolitan justice thus has no difficulty with a transformative occupation aiming to restore the state in war-torn communities, so long as the institutions which Occupier establishes are an effective conduit for the realization of justice across borders and thereby effectively promote a justifiedATC peace.
At this juncture, some loose ends need tying. First, it might seem that if an occupier is justified in issuing transformative directives to occupied populations, transformation itself can be a just cause for war. To many, this would be a worrying implication of the view defended in this chapter, since it would pave the normative way for more wars than would seem justified. However, the claim that an occupation can be justifiably transformative neither implies nor entails that waging war to transformative ends is also justified, for war, unlike occupation, almost necessarily involves killing, and the justificatory bar is thus far higher for war than it is for occupation. In fact, as I argued in CW (ch. 5), a regime change of that kind is not itself a just cause for a war of intervention.
Second, consider the case of a transformative occupation which proceeds from an unjust war. Suppose that although Occupier lacked a justification for occupying B in the first instance, it nevertheless brings about not just an end to endemic violence but in addition confers considerable benefits to the occupied population—such as liberal democratic institutions, a tolerant culture, welfare provision, etc. Is it justified in so doing? I suspect so. For if the occupation would bring those benefits, and if the (temporary) harms of the occupation were proportionate to those benefits, Occupier may well acquire such justification. In fact, this is how some who opposed the invasion of Iraq in 2003 subsequently sought to justify the occupation—on the (overly optimistic) grounds that it would turn Iraq into a liberal democratic state at the acceptable cost for the Iraqi of their temporary inability to exercise their sovereignty rights. That the coalition conducted itself very badly as a transformative occupier is beyond dispute. However, the thought that an initially unjust Occupier might nevertheless enable those which are de facto subject to its directives to do better at the bar of their fundamental rights and duties than they would under any other available alternatives is still worth considering.
-  For scepticism on transformative occupation, see, e.g., N. Bhuta, ‘The Antinomies ofTransformative Occupation’, European Journal of International Law 16 (2005): 721—40; S. Chesterman,‘Occupation as Liberation: International Humanitarian Law and Regime Change’, Ethics &International Affairs 18 (2004): 51—64; K. Z. Marten, Enforcing the Peace: Learning from the ImperialPast (New York: Columbia University Press, 2004). For a more sympathetic take, see M. Sassoli,‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, European Journalof International Law 16 (2005): 661—94; A. Roberts, ‘Transformative Military Occupation: Applyingthe Laws of War and Human Rights’, The American Journal of International Law 100 (2006): 580—622.There is an interesting debate in the legal literature on the degree to which the law of occupation canaccommodate transformative occupation. See the sources already mentioned here, as well as Scheffer,‘Beyond Occupation Law’; for an extensive review of those cases, see Fox, Humanitarian Occupation,ch. 3 and ch. 7/s. III.
-  I am grateful to David Rodin for pressing me on this.