The legitimacy of occupation authority: beyond just war theory

ABSTRACT

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

Acknowledgments

I would like to thank Andreas Cassee, Amy Thompson, Juri Viehoff and two anonymous reviewers for CRISPP for extremely helpful questions and comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

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 (). For a similar distinction between morally optional and non-optional institutional purposes see Schmelzle (2015, p. 142).

5. See Wolff (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.

Additional information

Funding

This work was supported by the German Research Foundation (DFG) within the Collaborative Research Center “Governance in Areas of Limited Statehood” [SFB 700] at Freie Universität Berlin.

Notes on contributors

Cord Schmelzle

Cord Schmelzle is a Postdoctoral Researcher at the Department of Political Science, University of Hamburg. 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.