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The Legitimacy of Occupation Authority: Beyond just war theory
Cord Schmelzle
Department of Political Science, Freie Universität Berlin, Ihnestr. 21, 14195 Berlin,
Germany
cord.schmelzle@fu-berlin.de
Cord Schmelzle is a Postdoctoral Researcher at the Department of Political Science, Freie
Universität Berlin. His work focuses on conceptual and normative questions of political
legitimacy and authority, political institutions, just war, and corruption. His book
‘Politische Legitimität und zerfallene Staatlichkeit’ (Campus 2015) has won the Best First
Book Award of the German Political Science Association (DVPW). He recently edited a
special issue of the Journal of Intervention and Statebuilding on the interplay between
the effectiveness and legitimacy of governance.
Word count: 9381
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The Legitimacy of Occupation Authority: Beyond just war theory
So far, most of the philosophical literature on occupations has tried to assess the
legitimacy of military rule in the aftermath of armed conflicts by exclusively employing
the theoretical resources of just war theory. In this paper I argue that this approach is
mistaken. Occupations occur during or in the aftermath of wars but they are
fundamentally a specific type of rule over persons. Thus, theories of political legitimacy
should be at least as relevant as just war theory for the moral evaluation of occupations.
This paper therefore draws on both traditions and argues that just war theory plays a
limited role in identifying the purposes and appropriate agents of occupation authority,
but that theories of legitimacy are necessary for explaining why and under which
conditions foreign actors have the right to rule in the aftermath of armed conflicts.
Keywords: Occupation, Legitimacy, Authority, Just War, jus post bellum, institutional
purpose
1. Introduction
Much of the philosophical debate about legitimacy beyond the state has been focused on
the legitimacy of international governance institutions such as the United Nations, the
International Criminal Court, or the European Union (see the contributions by Scherz and
Zysset, Christiano, and Erman and Kuyper, this issue). Only recently have political
theorists begun to examine the exercise of domestic political authority by actors other
than the nominally responsible state. One type of domestic non-state authority that gained
significant political attention over the last decade is rule by occupying forces in the
aftermath of armed conflicts. The public and political interest in these cases is no doubt
due to the US-led military interventions in Afghanistan and, especially, Iraq. The
subsequent occupations prompted various questions pertaining to the legitimacy of this
kind of rule: Under what conditions, if any, are occupations justified? Which kinds of
rights do legitimate occupiers hold vis-à-vis the occupied population? What is the
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legitimate scope and what are the justifying purposes of occupation authority?
To date, most of the philosophical literature on jus post bellum in general and occupations
in particular has tried to answer these questions by exclusively employing the theoretical
resources of just war theory (Lazar 2012, Pattison 2015).1 In this paper I argue that this
approach is mistaken. Occupations occur during or in the aftermath of wars but they are
fundamentally a specific type of rule over persons. Thus, theories of political legitimacy
– that determine whether and under what conditions political authority is justified –
should be at least as relevant as just war theory – which regulates the use of military force
– for the moral assessment of occupations. This paper therefore draws on both traditions
and argues that just war theory plays a limited role in identifying the purposes and
appropriate agents of occupation authority, while theories of legitimacy are necessary for
explaining why and under which conditions foreign actors have the right to rule in the
aftermath of armed conflicts.
The paper is organized into three sections. In the following section, I will briefly review
the debate over occupation rule in the just war literature. This overview shows that there
is no consensus concerning (a) the purposes, scope, and powers of occupation rule; (b) its
legitimate agents; and (c) whether the answers to these questions depend on the justness
of the preceding war. Next, I will sketch a general theory of institutional legitimacy in the
following section. This theory is based on the idea that social institutions are normative
tools that we create to pursue specific purposes. These purposes determine the scope and
powers of legitimate institutions and the justificatory standards that apply to them.
Subsequently I will apply this theoretical framework to occupations. Here it will help me
to answers the questions (a) through (c) for two types of occupations: Fiduciary
occupations, that are restricted to the enforcement of pre-existing norms and
transformative occupations that seek to change existing institutions.
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2. The Debate over Occupation Rule
It is possible to reconstruct the philosophical debate about the scope, purposes and
appropriate agents of legitimate military rule as a critical response to the legal rules of
humanitarian international law that regulate occupations (Jacob 2014). These norms –
formulated in The Hague Convention of 1907 and the Fourth Geneva Convention of 1949
– are organized around three principles: The conservationist principle regulates what
legitimate occupiers may do (a); the control principle determines who exercises
occupation authority (b); and the principle of independence asserts that the answers to
both questions do not dependent on the justness of the preceding war (c).
(a) The ‘what’ question
The conservationist principle states that occupiers must preserve the political,
institutional, and legal status quo of the occupied state and understands occupiers
accordingly as trustees that merely implement existing norms (Roberts 2006, Boon 2009).
I will refer to this type of rule as fiduciary authority. The motive for this restrictive
interpretation of occupation power is obvious: it is designed to prevent the acquisition of
fully-fledged political authority by means of war. There are at least three compelling
reasons for wishing to prevent this: First, the protection of the political self-determination
of the occupied people; second, the attempt to disincentivize war as a means of gaining
political authority; and third, the belief that military success is an inadequate principle for
assigning political powers and responsibilities.
While these arguments are intuitively convincing, the limited scope of fiduciary authority
can be problematic. The conservationist principle risks the preservation of unjust and
aggressive status quo ante bellum political structures. A crucial example for the limits of
the principle are the occupations of Germany and Japan after World War II (Roberts
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2006). The Allies were convinced that a fundamental political transformation of the Axis
states was necessary in order to reach a sustainable peace and to prevent them from
committing future crimes against humanity.
These historical examples are cited by just war theorist today in order to argue for a less
restrictive jus post bellum that allows for transformative authority to reform existing
political institutions if this is necessary for achieving the just ends of the preceding war
(Orend 2000, Bass 2004). Proponents of the conservationist principle caution against this
reformist approach, arguing that a restrictive interpretation of occupation authority is
more necessary than ever in order to tame neo-colonial interventions (Bain 2003).
(b) The ‘by whom’ question
The control principle states that whenever a foreign power has de facto military control
over a territory it assumes some of the rights (i.e. to enforce existing laws and to levy
taxes) and many of the duties (i.e. to uphold public order and to provide basic welfare) of
the nominally responsible state (see Chehtman 2015). While there is no realistic
alternative to this arrangement during wars, this is not the case for occupations in the
aftermath of armed conflicts. When the institutions of a defeated state cannot or should
not resume their responsibilities, victorious belligerents can either assume these tasks
themselves or transfer their control of the territory to a better qualified actor (Pattison
2015, Fabre 2016). The establishment of the United Nations Interim Administration
Mission in Kosovo after the NATO-led intervention is an example of such a decoupling
of warfare and transitional administration. But victorious belligerents are by no means
legally obligated to transfer their power to multilateral institutions. The UN-sanctioned
American-British administration of Iraq is one recent example of the utilization of the
control principle to legitimize occupations by former belligerents.
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The rationales for the principle are, again, intuitively plausible. Since an (approximate)
monopoly of force is a necessary precondition for effective governance, the control
principle ensures, first, that the responsibility to govern falls to the only actor who has at
this moment the capacity to do so. Secondly, the principle sets an epistemically
unambiguous standard for assigning the obligation to govern to a specific actor: Whoever
controls a territory, a fact that is rather easy to establish, assumes the responsibilities of
the ousted government. Whereas the principle's first implication promises at least
minimally capable occupiers, the second helps to identify the actors that have the
responsibility to govern.
There are, however, some serious problems with the control principle as well. A first line
of criticism asserts that, depending on the justness of the preceding war, the principle
either produces an unfair distribution of responsibilities or an illegitimate distribution of
authority. James Pattison (2015), for example, argues that the control principle tends to
be unfair to just belligerents, since it imposes the burdens of governing on them for either
practicing their right to self-defense or their willingness to protect others. Conversely, the
control principle seems to produce illegitimate results, if it establishes the authority of a
victorious but unjust belligerent, such as the Coalition in Iraq or the Russians in Crimea.
Thus, the control principle potentially both disincentivizes the just use of force in
assigning duties to successful belligerents and incentivizes the unjust use of force by
adding political authority to the spoils of war.
A second problem with the control principle is that it is less reliable in assigning the
responsibility to govern than its proponents had hoped. Belligerents who avoid military
control of foreign territory, either by confining themselves to air strikes – with often
disastrous results for the civilian population – or by quickly withdrawing their ground
troops, can eschew the responsibilities of occupation. Both strategies for avoiding
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military control lead to the very responsibility gap that the control principle was designed
to avoid.
(c) The ‘independence’ question
The conservationist principle and the control principle are both manifestations of a third
principle, the principle of independence. This principle purports that both the scope of
occupation authority and the qualification of a belligerent for holding this kind of
authority are independent of the causes and preceding stages of the war. The idea is that,
in order to increase compliance, the legal rules of war should be as neutral, inflexible and
objectively applicable as possible. As the previous sections have already implied,
however, the problem with this line of thought is that inflexibility with respect to the
causes of war and neutrality with respect to the belligerents’ justness can lead to highly
counterintuitive results. It would have prohibited the institutional transformation of Nazi
Germany and it legalizes foreign rule after wars of aggression, Iraq and Crimea being
recent examples. In what follows, I will attempt to demonstrate that these intuitive
objections are well-founded and discuss in which ways the justness of the occupying party
and the cause of war matter for an actor's legitimacy and the scope of its authority.
3. A Theory of Institutional Legitimacy
One problem with the debate over the legitimacy of occupation authority is that it almost
exclusively takes place within the framework of just war theory (Lazar 2012). While the
facts about the cause, proportionality and general justness of the preceding war are no
doubt important for determining the proper scope and agents of post-war authority, they
are hardly sufficient for this purpose: They neither provide a theory about the appropriate
purposes and powers of social institutions, nor do they explain how actors gain and lose
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legitimacy, i.e. the right to exercise institutional powers. These types of question
traditionally fall within the purview of theories of political legitimacy, which have yet not
been applied systematically to occupation rule (an exemption is Chehtman 2015). This
omission sets the task for the remainder of this paper. In this section I first sketch a general
theory of institutional legitimacy which I will then apply to the assessment of occupations
in the following section.
(a) The purposes and powers of institutions
Institutions are indispensable building blocks of societies. They are systems of norms and
practices that stabilize expectations, coordinate behavior and enable collective action
towards specific institutional goals and purposes. Institutions accomplish these tasks by
enabling and prohibiting certain actions, defining social roles, and assigning normative
advantages and disadvantages to institutional agents. Examples of institutions include
schools and universities, the criminal justice system, tennis clubs, and the political
institutions of the state.
Drawing on work by John Searle (2010) I suggest to understand institutions as normative
tools. According to this view, institutions are tools because we evaluate, justify and often
design them in reference to specific purposes that they are supposed to fulfill. The
criminal justice system, for example, is designed to determine, prevent, and punish
criminal behavior. The powers of institutional roles within the system, such as the roles
of judges, police officers, and lawyers, need to be justified in reference to these purposes
and we evaluate criminal justice systems on the basis of how well they fulfill their
assigned functions. Institutions are normative tools because they pursue their purposes
not primarily through the physical or cognitive capacities of their agents but through
altering the distribution of normative advantages and disadvantages. These advantages
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and disadvantages can be spelled out in Hohfeldian (1919) terms: Institutions have a
specific set of claim-rights, liberties, normative powers, and immunities as well as
institutional duties and liabilities that enable and motivate them to coordinate the actions
of their subjects and so to achieve their purposes. What distinguishes police officers from
armed vigilantes, for example, are ultimately their rights (e.g. to use force and to issue
directives), duties (e.g. to prevent criminal acts) and liabilities (e.g. being subject to
political control), and not their training and equipment.
Before we turn to the question of institutional legitimacy, I want first to introduce a
distinction between two categories of institutions; first-order and second-order
institutions (Holm 1995). These categories are defined by the type of purposes that a given
institution fulfils and the corresponding normative advantages that it typically possesses.
First-order institutions are restricted to applying, implementing, and enforcing norms,
whereas second-order institutions have the power to set and to alter rules. The police, to
give an obvious example, is a first-order institution that enforces norms that have been
established by the legislature, a second-order institution. These different purposes affect
the characteristic normative advantages and disadvantages of first- and second-order
institutions: Within their jurisdiction, second-order institutions usually have broad
discretionary normative powers, i.e. the ability to set binding rules as they see fit. First-
order institutions, in contrast, often lack discretionary rights. They are typically under a
duty to exercise a limited set of liberty-rights and normative powers in accordance with
pre-set instructions. With this distinction in hand we can now turn to the problem of
institutional legitimacy.
(b) Institutional Legitimacy
Assertions about the moral standing of institutions can take one of two forms. Axiological
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statements about institutions assess whether and to what degree an institution embodies,
promotes or realises value in general or specific values such as justice or well-being. From
a practical perspective, axiological judgements are obviously important for informing
actions, but they do not, in and of themselves, prescribe or prohibit any course of action.
By contrast, normative assessments are directly action-guiding. They refer to the rights,
duties and normative powers of actors, i.e. what they can, may, should and must not do.
In the philosophical debate on legitimacy, the concept typically indicates a normative
status of institutions. A normative status is a status by virtue of which an actor or
institution enjoys a certain set of rights and duties, powers and liabilities, that enable it to
fulfil specific purposes (Searle 2010, Taylor 2015). It is defined ‘by a pairing of a set of
upstream entry conditions with a set of downstream consequences’ (Taylor 2015, p. 5).
The status of being married, for example, is entered into by consenting to forming a
legally recognized union with one's spouse and it has the consequence of creating special
obligations of care and assistance between the parties.
What, then, are the entry conditions and consequences of institutional legitimacy? What
are, in other words, the conditions that an institution needs to fulfil in order to count as
legitimate and what rights and duties, powers and obligations arise from this status? Since
institutional legitimacy is a much broader and more abstract status than, for instance,
being married, the entry conditions and normative consequences are probably much more
abstract as well. The question is then whether the characteristics of e.g. legitimate schools,
legitimate states, and legitimate military occupations have enough in common to establish
a general concept of institutional legitimacy that can be applied to every type of
institution. My strategy for addressing this question in the remainder of this section is to
draw on the extensive literature on state legitimacy and to develop a more abstract
definition of legitimacy that may be applied to a broad spectrum of institutions.
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With regard to the consequences of legitimacy, there is wide agreement in the
philosophical literature that legitimate states have the right to rule (e.g. Copp 1999,
Applbaum 2010). However, this abstract consensus immediately breaks down when we
compare the scope of this right – what activities fall under the right to rule – and the
normative advantages that flow from it, in different theories of legitimacy. This contrast
is instructive, since it derives from and refers to different views about the proper purposes
of state institutions: Authors with libertarian leanings, for example, argue for a narrow
conception of legitimacy that consists of the liberty-right to enforce natural rights and
limited normative powers to arbitrate disputes over these rights (Nozick 1974, Wellman
1996). They see the state basically as a first-order institution with the purpose to enforce
and apply, but not to create, binding rules. Neo-Kantians, on the other hand, see the state
primarily as a second-order institution whose main function consists in generating
binding norms under conditions of a reasonable pluralism (Waldron 1999, Christiano
2004, Stilz 2009). This purpose in turn justifies a much broader conception of state
authority that includes discretionary normative power to regulate most social interactions.
The important point here is not which side is right in this debate but that both employ the
same methodology. The institution's purpose defines in both cases the legitimate scope of
its activities and the normative advantages that it claims. Under both theories, scope and
kind of authority are purpose-dependent.2 The normative shape of a political institution
is formed by its function just as the physical shape of a hammer is formed by its. Note
that purposes play both a justifying and constraining role in this argument. They justify
institutional normative advantages, but they also limit the scope of these advantages to
cases that can be justified by the institution's purpose.3
The literature on state legitimacy does not only discuss the consequences of legitimacy
but also the entry or justification conditions, i.e. the criteria a state must meet to be
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considered legitimate. There are, of course, dozens of theories of state legitimacy, but for
our purposes, it is sufficient to distinguish between three groups of views. These theories
are distinguished by the deontic status that they ascribe to state institutions and their
purposes. They view the purpose of states as either morally (1) impermissible, (2) merely
permissible, (3) or mandatory.4
The first theoretical perspective argues that an inherent impermissible purpose spoils the
normative status of state institutions. Some theories of anarchism defend this position.5
They contend that the key purpose of states, to exercise some kind of centralized
authority, is always morally impermissible because it is supposedly irreconcilable with
the fundamental value of human autonomy. For the anarchist this impermissible purpose
suffices to render every conceivable state illegitimate, no matter how beneficial it might
otherwise be. This reasoning can be extended to all types of institutions. If the purpose of
the institution is impermissible, then it seems unjustified to grant it a normative status that
enables it to pursue this purpose.
Consent theories are key examples of theories that view the establishment and support of
authority structures as neither impermissible nor mandatory, but morally neutral (Locke
1690, Simmons 1979). From this perspective, we are neither under an obligation to create
authority structures nor are we prohibited from doing so, given that we respect the rights
of others in the process, which crucially includes their right not to be involuntarily
subjected to political institutions. From this follows that the only way states can gain
legitimacy is through the voluntary consent of the governed. This view rests on the
intuitively convincing principle that autonomous persons can create normative liabilities
for themselves by voluntarily accepting the authority of institutions. This principle,
however, seems much better suited to explain the legitimacy of civil society organizations
than that of large scale political institutions which claim authority over entire societies
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(see Simmons 2002).
A third branch of theories holds that political institutions are at least sometimes a
necessary means to pursue morally mandatory purposes. Important example of this
approach include natural duty of justice theories.6 They argue that we often need to
coordinate our actions through institutions in order to discharge our independent – natural
– moral duties not to harm or subject others (Kant 1991, Stilz 2009) or to rescue them
from great peril (Wellman 1996). In either case, it becomes morally mandatory, according
to natural duty theorists, to ‘support and comply with just institutions’ and to ‘further just
arrangements not yet established’ that help us to fulfill these duties (Rawls 1971, p. 115).
One important implication of this approach is that it suggests that the justification of
morally mandatory institutions has an inherent instrumental dimension (Adams, this
issue). Accordingly, whether a particular institution is legitimate depends, at least in part,
upon how well it fulfills its purpose – a standard that is irrelevant for institutions
legitimized through consent. What this exactly entails depends on the kind of purpose that
the institution serves. The legitimacy of norm-setting second-order institutions usually
depends on the fairness of their decision processes since there is typically widespread
(reasonable) disagreement among the subjects about the value of different options. In
cases in which all subjects have roughly equal stakes in the institution's decisions this
usually implies the need for democratic procedures. The legitimacy of first-order
institutions, on the other hand, depends more directly on their capacity to effectively
implement and enforce pre-existing norms and standards. Here too democratic procedures
are preferable. They increase an institution's accountability and allow its subjects to
overcome potential disagreement about its methods and priorities.
The relative merits of these theories are, again, less important than the similarities of their
argumentative strategies. All three views consider the deontic status of the institution's
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purpose as the basis for determining whether an institution can achieve legitimacy, and,
if so, through which justificatory mode. Institutions with impermissible purpose cannot
become legitimate at all, institutions with merely permissible purposes depend on the
consent of their subjects, and institutions with mandatory purposes can gain legitimacy
vis-à-vis non-consenting subjects if they are reasonably just and effective.
If we accept the argument this far, institutional purposes determine on the one hand the
scope and means of legitimate state authority and on the other hand the standards of
justification that apply to it. I want to suggest that this pattern can be extended to
institutional legitimacy in general. The purposes of institutions determine how they are
to be justified, what they may do, and which means they may employ. To say that an
institution is legitimate is therefore to say that it (1) is authorized by the relevant standards
(2) to use necessary and proportionate means (3) to pursue its permissible purpose. The
first part of this definition requires that legitimate institutions meet specific justificatory
standards – consent, procedural fairness, or effective performance – that arise from their
purposes. The second part stipulates that legitimate institutions may only employ the
normative advantages – claim-rights, privileges, powers, and immunities – that are
necessary and proportionate to their purposes. This condition ensures, on the one hand,
that legitimate institutions have the normative advantages that they need to pursue their
purposes at their disposal, but it also restricts them to the means that can be justified by
these purposes. The third element stipulates that legitimate institutions may use their
normative advantages only for tasks that are morally permissible and part of the
institution's purview. This condition excludes morally impermissible purposes and
prevents institutions and their leaders from corruptly co-opting an institution's powers for
purposes that are in principle permissible but not part of the institution's mission. This
understanding of institutional legitimacy implies that there are three different ways in
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which an institution can lack legitimacy. Either (1) the institution is not authorized to
operate by the relevant standards, (2) its means are unnecessary or disproportional to its
purposes, or (3) the purposes pursued by the institution are morally impermissible or fall
outside of the institution's purview.
4. Occupation Rule as a Case of Institutional Legitimacy
In this section I will now use this theory of institutional legitimacy to assess the legitimacy
of occupation rule. More precisely, I will explore which purposes, if any, justify which
kind of occupation authority and which agents – just belligerents, unjust belligerents or
third parties – have the right to exercise this kind of power. I will investigate these
questions separately for the two kinds of rule that I have distinguished above – (a)
fiduciary and (b) transformative occupations.
(a) Fiduciary Occupations
According to the proposed theory of institutional legitimacy, the normative advantages,
modes of justification, and scope of activities of legitimate institutions depend on their
purpose. In order to assess the legitimacy of fiduciary occupations we need first to identify
their purpose and explore then whether this purpose has the normative force to justify its
powers and activities.
As I have already noted, the purpose of fiduciary occupations is to maintain public order
and services during armed conflicts. To this end fiduciaries are expected to act as trustees
of the occupied. They merely apply and enforce the existing norms of the ousted state.
My account of institutional legitimacy suggests that there are in principle two routes to
legitimize this kind of rule. One must either show that the subjects of occupation authority
have voluntarily consented to it or that it is impossible for them to discharge their natural
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moral duties without the help of fiduciary institutions. Let me consider both alternatives
in turn.
The strength of consent theories is that they are intuitively plausible. The voluntary
consent of autonomous persons to an institution's authority should be sufficient to justify
its authority, or at least shift the burden of proof to the institution's critics. However, the
question here is whether the consent of the governed is a necessary condition for the
legitimacy of occupations. There is an epistemic and a categorical reason to doubt this.
The epistemic reason is the improbability of obtaining reliable expressions of consent
during or in the immediate aftermath of wars. Actual consent in the form of voluntary
promises or contracts between the occupiers and the occupied is difficult to obtain for
obvious logistical reasons but also because the power imbalance between occupiers and
occupied makes it hard to tell whether consent is given voluntarily and therefore valid.
Moreover, possible indicators of tacit consent such as continued residence in the occupied
territory, voting, or at least non-resistance (cf. Simmons 2002) are compromised. They
may be influenced by other factors such as ongoing conflict (continued residence), may
not apply to the circumstances (voting), or may simply indicate resignation in the face of
costly alternative behaviors (non-resistance).
The more categorical reason against consent as a necessary condition for the legitimacy
of occupations is that the occupied might be under a moral duty to accept sufficiently just
and effective occupations. This implies, of course, that the purposes of at least some
instances of military rule are morally mandatory and that consent is therefore in these
cases the wrong standard of justification. One way to make such an argument is to apply
the idea of natural duties of justice to post-conflict situations.
Natural duty of justice theories have the immediate upside that they can explain the
normative situation of the occupiers and occupied alike. Potential occupiers are, if natural
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duties of justice theories are correct, under a natural duty to establish and support just
institutions, if these are necessary to protect the basic rights of the occupied (Rawls 1971).
Depending on the normative advantages of occupation institutions, the occupied are in
turn under an obligation not to resist and to comply with these institutions, if this is
necessary to discharge their independent moral duty to treat each other justly. So the
justification of occupation rule towards a potential subject is not that it will benefit her
but that she owes the benefit of just and effective political institutions to her neighbor –
and vice versa (cf. Wellman 1996).7
The question is now, what kind of duties may convey sufficient normativity into the
process and how exactly is this normativity transmitted to political institutions? As I have
already mentioned above there are variations of this argument that are based either on
negative duties not to harm or to subject others or on positive duties to rescue them from
grave peril. Both types of duties play an important role in explaining the normative
dynamics in cases of occupations. Positive duties to rescue, on the one hand, explain the
potential occupier's duty to uphold or to establish just and effective political institutions
in post-conflict situations. The idea here is that we all have a limited duty to rescue others
from grave danger and that living without effective political institutions that set, apply
and enforce reasonably just laws is such a danger (Wellman 1996). Negative duties not
to harm and subject others, on the other hand, are well-suited to justify the occupiers' right
to rule vis-à-vis the occupied. Natural duty of justice theories argue that this duty is
impossible to fulfil in a state of nature without political institutions that publicly set,
apply, and enforce rules. Their argument rests on the assumption that moral principles are
open to a wide variety of reasonable interpretations. This indeterminacy makes it
impossible even for well-meaning persons to treat each other justly without the help of
institutions that set binding norms, settle disputes, and ensures that the law is equally and
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universally enforced.
It is now easy to see how this argument can be applied to the case of occupations. If the
nominal responsible state loses control over part of its territory during a war, then the
population of this territory finds itself in a position that at least partly resembles a state of
nature scenario. Although the laws of the state are technically still valid, they will lose
their coordination function without courts that apply them and law enforcement
institutions that assure compliance. An instructive example of such a situation was Iraq's
descent into chaos after the American invasion.
The American failure to make law enforcement an early priority of the occupation led to
a vicious circle of violent crime, economic breakdown, more crime, and finally political
disintegration and violence (cf. Williams 2009). The initial lack of effective policing and
adjudication had two consequences. Criminal behavior became much less risky, whereas
complex economic activities became much more so, since contracts and property rights
were basically unenforceable. This led to an economic crisis, which gradually turned
crime into the most lucrative industry. Extortion, robbery, and especially kidnapping
became ‘the best business in Baghdad’ as a Shia man put it in an interview with the
Guardian in 2007 (qouted in Hills 2013, p. 95). Given these threats, the high availability
of weapons, and the lack of alternatives, violence quickly became the normalized form of
dispute resolution among Iraqis and the resulting revenge and honour killings further
fueled a descent into anarchy (Green and Ward 2009). Finally, the terrorized population
turned to sectarian militias that offered protection in exchange for political and material
support. These groups then used this support to engage in escalated criminal and political
violence across ethnic lines that ultimately sparked the Iraqi civil war. Whereas this result
is collectively irrational, it is the result of individually rational and morally at least
excusable actions under conditions of insecurity.
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The example of Iraq illustrates two features of post-conflict situations that are important
for the justification of occupation rule. These situations are characterized by structural
conditions that (a) force even well-meaning persons into harmful behavior and (b) are
nearly impossible to overcome without third parties that assure general compliance. This
triggers both a natural duty of potential occupiers to uphold the social order and a
corresponding duty of the occupied to accept this authority as long as it is reasonably just
and effective. I have argued in the last section that an institution's purpose determines the
legitimate scope of its authority, the powers that it may exercise, and its mode of
justification. What, then, follows from the purpose of upholding social order for fiduciary
occupations?
The scope of fiduciary occupations is predetermined by the laws of the ousted state and
conditional on its inability to exercise domestic authority. Fiduciaries only have the
authority to implement and enforce existing laws – given that they are reasonably just –
as long as the occupied state is incapable of doing so itself. Given its lack of democratic
justification, fiduciary rule should further focus on the provision of basic goods such as
security, welfare, and conflict resolution and abstain from unnecessary interventions into
the societies that they only temporarily administrate.
The purpose of temporarily upholding social order also shapes the powers of occupiers.
It gives fiduciaries liberty-rights to enforce pre-existing norms, claim-rights to non-
interference, and non-discretionary normative powers to adjudicate conflicts. But it also
ties the legitimate exercise of these advantages to this purpose, commits occupiers to
norms of impartiality while exercising these powers, and withholds any legislative
authority from them. Fiduciary occupations remain first-order institutions that may apply
existing norms, but lack the authority to change them. This kind of purpose finally also
defines their mode of justification. Fiduciary rule is instrumentally justified by how well
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it achieves its purpose to temporarily uphold social order during and in the immediate
aftermath of armed conflicts. The mode of justification and restricted scope of fiduciary
authority imply that just and unjust belligerents are both in principle qualified and under
an obligation to exercise this kind of rule. They are both potentially qualified since de
facto authority, i.e. military control of a territory, is the necessary and sufficient condition
for holding fiduciary authority (Chehtman 2015). And they both have the right and duty
to exercise fiduciary authority since the guarantee of basic social order and services is of
such moral importance that less than ideal governance by unjust actors is, as a rule of
thumb, often still preferable to no governance.
Nevertheless, even when they are on balance legitimate, fiduciary occupations are a
normatively problematic form of foreign, undemocratic rule that subjects the occupied to
unaccountable power and denies them influence over the methods and policy priorities
by which they are governed. The scope of fiduciary occupations should therefore be as
limited as possible and their legitimacy tied to a lack of more accountable, domestic
alternatives.
(b) Transformative Occupations
If the underlying norms of the occupied state are reasonably just, this restrictive
interpretation of occupation authority makes good sense. By merely implementing pre-
existing laws it respects the political self-determination of the occupied people and
disincentivizes resorting to war for the sake of gaining discretionary legislative authority
(Fox 2012). The limited scope of fiduciary authority becomes problematic, however, if
the implementation of the pre-war status quo would itself be inacceptable. In such cases
the transformation, not preservation, of the old social order seems morally necessary. Yet
this purpose would grant occupying forces broad normative powers to establish new rules
21
and institutions. Transformative occupations would therefore have a much wider
authority than fiduciary ones. The question is then under what conditions, exactly, would
any foreign actor have the right to transform the political institutions of another country?
What purposes justify this kind of authority?
One answer that is frequently given in the jus post bellum debate is that transformative
authority is justified only if it is necessary for the sustainable realisation of the just causes
of the preceding war (Orend 2002, Bass 2004). This may be referred to as the cause
dependence principle. If a war has, for example, the just cause to protect an ethnic
minority from genocide by state agents, then the victorious just belligerent has the right,
and possibly the duty, to transform state institutions in such a way that the minority is
protected from further violence for the foreseeable future. Conversely, the occupied
population must accept these interventions if they are necessary to prevent future
genocides. The fundamental rights of victims ground in this case both the right to wage
war and to exercise occupation authority. Whether there is a mandate for total
transformation, as in the case of Germany after World War II, or more limited measures,
like in Iraq in 1991, depends on what actions the war's just aims would necessitate.
This approach has three important advantages. First, it draws on a normative theory that
explains the reasons for, scope of, and limits to transformative occupation rule. This is
the theory of institutional legitimacy that I have sketched above. The cause dependence
principle holds that transformative authority is only legitimate if it is necessary to realise
the just ends of a just war. Accordinly, its scope and normative advantages need to be
justified in reference to the war's purposes. These purposes in turn must deliver the
normative basis to justify both the use of military force and occupation. Second, this way
of thinking about occupation authority integrates questions of jus ad bellum and jus post
bellum into a common framework which furthers our understanding of both principles.
22
The claim is here that the actions necessary to realise the just causes of a war in its
aftermath are an integral part of the actions that we need to consider when we justify war.
This has two consequences. First, ad bellum legitimacy needs to include the right to
transformative occupations if these are necessary to achieve the war's end. Second, if
occupations are necessary to achieve a war's purpose, then their expected moral and
material costs must be integrated into the proportionality tests of the jus ad bellum (Hurka
2005). Third, the cause dependence principle avoids perverse incentives for going to war
by limiting transformative authority to the realisation of just causes of war.
I think, however, that the realisation of just causes of war may be sufficient to justify
transformative authority, but not necessary. I argue that the cause dependent principle
applies the wrong normative standard to the right justificatory strategy. Let me explain.
The argument rests on the idea that transformative authority is justified whenever it is
necessary to ensure that its subjects will in future fulfil their fundamental duties that they
have violated in the past. The problem is that the cause dependence principle restricts the
relevant violations to cases that are severe enough to justify military force. This is so
because, according to the principle, occupation authority may only help to achieve ends
that already justified the preceding war. But this standard is too restrictive, because the
costs of being the subject of foreign occupations are different than the costs of being the
target of military force. An example might help to illustrate this point. Few theorists
would argue that it is justified to wage a war in order to remove a misogynist regime that
prohibits girls from getting primary education. The horrors of war, especially the
unavoidable killing of innocent persons, are just too gruesome to justify a war for reasons
other than collective self-defense, the prevention of a genocide etc. But whether or not a
war would be justified in order to provide girls with access to education is the wrong
standard for deciding whether or not transformative occupation would be justified to
23
achieve this goal if a war had already been fought for other, stronger reasons. Establishing
a transformative occupation under these circumstances or extending the scope of an
independently justified fiduciary occupation, has clearly other – and lower – moral costs
than waging war.
The obvious objection to this argument is that it is too permissive. This is problematic
since being subject to undemocratic foreign rule is both inherently harmful and likely
results in negative consequences as access to wide-ranging transformative authority
incentivizes military aggression. Both points are well-taken but I think it possible to
deflect much of their force if we take a closer look at the conditions that transformative
authority has to fulfill in order to be legitimate. As I have argued in section 3, institutions
are legitimate if they (1) pursue permissible purposes, (2) utilize just and proportional
means, and (3) are justified by the relevant standards to exercise their powers. These three
criteria will help us now to restrict the purposes for which transformative authority can
be utilized, the conditions under which it is proportional, and the actors that may exercise
it.
(1) The first criterion is concerned with the purposes that are in principle capable of
justifying involuntary institutions such as occupation rule. As we have seen above, only
morally mandatory purposes can fulfil this condition. Involuntary institutions are only
legitimate if they are necessary for fulfilling pre-existing moral duties. The problem is
now that there is reasonable disagreement concerning what exactly we morally owe to
each other. This is the reason, as I have argued above, for why we need legislative political
institutions in the first place and it puts a burden of proof on transforming established
institutions that usually reflect societal equilibria. I think, however, that there are two
types of moral rights and corresponding duties that are important, unambiguous, and
determined enough to justify the establishment of political institutions without the
24
consent of the governed. These are, on the one hand, basic human rights such as the rights
to life and security, sustenance, and basic liberties, and on the other hand the right to an
infrastructure of just and effective political institutions that interpret, apply, and enforce
these rights. Transformative occupations are therefore only justified if they are either
necessary to protect basic human rights or to establish minimally fair and capable
institutions.
(2) The second criterion assesses whether the means are proportional to the end. That is
to say whether the relevant costs of transformative occupations are likely to outweigh
their relevant benefits. This qualification is important since not all burdens and benefits
of occupations influence their legitimacy. That successful occupations restrict the
freedom of perpetrators to violate human rights, for example, does not count against them,
whereas potential benefits that are not morally mandatory, such as economic growth, do
not count in their favor. What, then, are the relevant burdens and benefits of
transformative occupations? The relevant benefits are simply the realisation of the
morally mandatory aims of the institution. The relevant benefit of a transformative
occupation with the purpose to protect an ethnic minority from violence is the degree to
which it achieves this aim. But what are the relevant burdens? I think the problematic
aspects of transformative occupations derive from the fact that they are a form of foreign,
undemocratic rule. Foreign, undemocratic authority structures are both intrinsically
harmful and increase the probability of ineffective and abusive governance. They are
intrinsically harmful in that they constitute a relational wrong; they violate the norm of
equality both at the individual and the collective level. Undemocratic rule constitutes a
pro tanto relational wrong at the individual level because it establishes a social hierarchy
between rulers and the ruled that weighs the latter's opinions and interests as less worthy
than the former's (see Viehoff 2014). Foreign rule constitutes a pro tanto collective
25
relational wrong because it establishes a social hierarchy between communities of rulers
and ruled that implies that the latter are unable or unworthy to rule over themselves (cf.
Ypi 2013). Both arguments are powerful objections against occupation rule. The pro tanto
wrongness of foreign and undemocratic rule shows that even legitimate occupations are
harmful and that they should prioritize the expedient transition of power to a viable
domestic (democratic) institution.
Besides these intrinsic problems, foreign, undemocratic rule also tends to produce bad
results for the governed. This propensity is an important factor in calculating whether a
transformative occupation's expected benefits outweigh its risks. The reasons for this
tendency are epistemic, motivational, and capacity-based. Foreigners often do not fully
understand the societies that they want to govern; they lack democratic control and other
accountability mechanisms that force them to govern in the interest of the governed; and
they usually have little empirical legitimacy which leaves them with bribery and coercion
as their only means to initiate social cooperation (see Schmelzle and Stollenwerk
forthcoming). The combination of these factors all too often leads to policy solutions that
are unsustainable once the occupiers leave. To remedy this problem occupiers should
systematically include representatives of the occupied in their governance structures in
order to better understand local interests and conflicts and attain at least a minimum of
accountability and empirical legitimacy.8
The outcome of this discussion of the risks and harms of occupations is not that
transformative authority is never justified but rather it is a transitional, second-best option
that can only succeed if the responsible actors have the right capacities and motivations.
The last question that we have to address is whether certain groups of actors are
categorically unqualified to exercise this kind of authority.
(3) I have argued above that unjust and just belligerents are both qualified and under an
26
obligation to exercise fiduciary authority because de facto authority is sufficient for
exercising fiduciary authority, the dangers of abuse are limited and it is hugely important
that no authority vacuum emerges. The situation is different for transformative authority
that seeks to create novel political institutions. Here, the danger of abuse is high and
potential occupiers require not only de facto authority but also epistemic qualities, the
right kind of motivations and the capacity to initiate social cooperation. I argue that this
set of conditions typically rules unjust belligerents out as potential occupiers and creates
strong arguments for transferring transformative authority to international actors.
The idea that an aggressor might have the right to exercise transformative authority seems
very odd from the outset, but it is surprisingly popular in the jus post bellum debate (see
Feldman 2004, Walzer 2004). The example is here, again, the case of Iraq. The argument
is, in a nutshell, Colin Powell's famous ‘Pottery Barn rule’: You break it, you own it. But
what might be a good principle for determining liability in a china shop is a bad principle
for transferring authority. The first reason is that actors, who have already waged an
illegitimate war, have demonstrated either bad judgement or corrupt intentions that
disqualify them from exercising far-reaching authority. The argument is here that the
probability that they will rule badly or even abuse their power is simply too high, Iraq
being a case in point. Moreover it is likely that unjust aggressors are detested by the local
population which makes successful governance unlikely and violent resistance probable.
The second argument is that the Pottery Barn rule is relationally unjust. We cannot expect
the victims of unjust belligerents to accept the authority of actors that have already
demonstrated bad judgement or ill will towards them, no matter how qualified they might
otherwise be. The third point concerns the incentives structure. If waging an unjust war
would not disqualify a force from gaining transformative authority then this would create
a powerful incentive to attack geo-strategically important or resource-rich countries that
27
struggle with internal injustices capable of justifying institutional transformation but not
a war. These three arguments make a strong case that the right to exercise transformative
authority cannot be independent of the actors' ad bellum and in bello conduct.
Let me conclude with a final observation. While I have argued that just belligerents can
in principle obtain limited transformative authority to pursue a handful of morally
mandatory purposes if they observe strict standards of proportionality, the roles of
belligerent and of ruler over the defeated party should nevertheless be separated whenever
possible. Most of the arguments that speak against granting unjust belligerents
transformative authority also apply, to a lesser degree, to just belligerents. Whoever
fought a bloody war will not be able to draw on the goodwill of the local population. And
feelings of revenge and fears of retribution may influence the way in which combatants
rule. I therefore agree with James Pattison (2015) that the responsibility to exercise post-
conflict authority should ideally be assigned to specialized international organizations or
multilateral coalitions. This might not be possible for fiduciary occupations during wars,
but it should be possible for transformative occupations. Moreover, separating the
adversarial role of combatants from the governing role of occupiers not only seems more
likely to produce good results but also fairer for just belligerents. There is no reason why
the ones who have already sacrificed life and limb should also pay the tab for building
sustainable, peaceful institutions.
5. Conclusion
I have argued for the thesis that theories of institutional legitimacy, and not just war
theory, are foundational for understanding the conditions under which occupation rule is
legitimate. The approach to institutional legitimacy that I introduce in this paper is built
28
around the idea that an institution's purpose determines the legitimate scope of its
activities, its normative advantages, and the relevant standards of justification. Applied
to questions of occupation rule, this approach helps us to differentiate between two kinds
of occupation authority – fiduciary and transformative occupations – that pursue different
purposes, justify different powers, and demand different qualities of potential occupiers.
But this shift of focus from just war theory to theories of legitimacy does not render facts
about the cause, proportionality and general justness of the preceding war obsolete to the
legitimacy of occupations. The cause of war is still a consideration in justifying purposes
of transformative occupations, and the ad bellum and in bello justness of the belligerents
determines whether they are at least in principle qualified to exercise transformative
authority. But not only do theories of legitimacy need to consider the facts of war, just
war theory needs conversely to consider the considerable risks and inevitable relational
wrongs that occupations entail. Both fields of theory need to process the data that the
other one generates in order to obtain better results.
Acknowledgements
I would like to thank Andreas Cassee, Amy Thompson, Juri Viehoff and two anonymous
reviewers for extremely helpful questions and comments.
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1 Important early contributions to the wider debate about the jus post bellum include Orend (2000, 2002),
Bass (2004), Bellamy (2008), and Recchia (2009). Recent work by Walzer (2004), McMahan (2009),
Bazargan (2013), and Chehtman (2015) has a narrower focus on the legitimacy of occupations.
2 For a similar argument see Rossi (2012).
3 This point is made by Locke in §139 of the Second Treatise (1690).
4 This distinction was developed by Nate Adams (this issue). For a similar distinction between morally
optional and non-optional institutional purposes see Schmelzle (2015, p. 142).
5 See Wolf (1970).
6 Another prominent example is Joseph Raz' service conception of authority (1986).
7 McMahan (2009, p. 104) comes close to making this argument when he claims that occupations are
justified to those that benefit from them because their consent can be presumed.
8 See Chopra and Hohe (2004) and Recchia (2009) for concrete suggestions how an increased
participation of local communities could be accomplished.
