Treason,secession and wars of independence

Abstract

Are (unilateral) secessionists traitors? In this paper, I first set out an account of treason that is, I argue, superior to competing accounts. This account is the disjunctive account, and it holds that someone is a traitor if he or she participates in activities that aim to subject the political community to which they belong to ongoing serious violations of self-determination, or which aim to commit widespread, systematic violations of the basic rights of individual members of that political community. I then apply this account to the case of unilateral secession. Unilateral secession, I argue, need not be treasonous, in part because it is difficult to explain how even many cases of unjustified unilateral secession necessarily violates the self-determination of the political community seceded from, or violates the basic rights of its members. I argue that this is true even when the secessionists fight a war of independence against their state.

Are (unilateral) secessionists traitors? ¹ There are three upshots to a positive answer. First, (a) we may have a good candidate explanation for explaining the wrongfulness of unilateral secession (from a legitimate state), (b) we may have good reason to treat secessionist combatants differently from foreign enemy combatants – i.e., we may have reason to treat them as criminals, and (c) legal restrictions or outright bans on secessionist politics may be justified. Quite a bit hangs on whether separatists are traitors.

In this paper, I first set out an account of treason that is, I argue, superior to competing accounts. This account is the disjunctive account, and it holds that someone is a traitor if and only if he or she participates in activities that aim to subject the political community to which they belong to ongoing serious violations of self-determination, or which aim to commit widespread, systematic violations of the basic rights of individual members of that political community. I then apply this account to the case of unilateral secession. Unilateral secession, I argue, need not be treasonous, even when it is unjustified, in part because it is difficult to explain, in some cases, why unilateral secession necessarily violates the self-determination of the political community seceded from, or violates the basic rights of its members. Only where unilateral secession violates the self-determination of the people of the seceding region, leaves the remainder state incapable of fulfilling the basic functions of statehood, or where the secessionists attempt a land-grab against their state, does secession count as treasonous. I argue that this is true even where the secessionists fight a war of independence against their state.

In the first section, I canvass existing accounts of treason, and give a sketch of the necessary conditions for being a traitor, before setting out my own account of treason. I ground the disjunctive account with reference to historical cases: in particular, the contrasting cases of Charles de Gaulle and Philippe Petain. In the second section, I try to ground the claim that unilateral secession need not, on the disjunctive account, count as treason. Finally, in the third section, I discuss the implications of the disjunctive account for wars of independence.

What is treason?

Who is a traitor?

Treason, like adultery, is a form of betrayal. But whom can we say have betrayed? If I harm or otherwise wrong those to whom I do not owe loyalty, I do not betray them. So, one first step to figuring out what treason is to figure out who can be a traitor. Bearing some relationship to others is a necessary condition of being a traitor with respect to them. But what is that relationship? This is not a question I want to spend much time on because others have already addressed it. Cecile Fabre, for example, has shown that nationality – in the sense of formal citizenship – is not a good candidate for the relationship we are looking for. As Fabre points out, co-nationality seems to both overgenerate and undergenerate cases of treason; she gives the hypothetical example of someone who works for American foreign intelligence, and spies on Russia, but who, without knowing it, is in fact a Russian citizen. She also gives the example of William Joyce, ‘Lord Haw Haw’ who was executed for treason by Britain after the Second World War for working as a German propagandist – Joyce was not in fact a British subject, but an American citizen. In spite of this, Fabre claims that the British authorities were correct to consider Joyce a traitor (Fabre, 2020: 432–434).

Fabre claims that a more substantive relationship would seem to be necessary to ground the claim of treason. The relationship she settles on is ‘social membership’ – an individual’s belonging to and integration within a particular community or society. It encompasses not only legal citizenship but also the extent to which an individual is recognized as a member of that community by its other members, and enjoys the social and economic benefits normally associated with residence there. This recognition entails enjoying certain rights, benefits and protections within the community (Fabre, 2020: 434–435). ²

As I have said, this is not an issue I want to spend much time on, so I am content to accept Fabre's claim that social membership is a necessary (though not, as she says, sufficient) condition for qualifying for treason. The important question, for my purposes, is whether and when separatists count as traitors on this (plausible) account of who can count as a traitor. Let us first contrast two ideal types of secession, the first actual, the second fictional (for now):

South Sudan: The secession of South Sudan from Sudan in 2011 was the culmination of decades-long conflict and struggle for self-determination. Exacerbated by ethnic, religious and economic disparities, tensions between the Arab-Muslim-dominated north and the predominantly African-Christian south persisted following Sudan's independence in 1956. Decades of marginalization, political repression and civil war, particularly during the Second Sudanese Civil War (1983–2005), fuelled demands for autonomy and independence among the southern population. The Comprehensive Peace Agreement (CPA) of 2005, brokered with international support, paved the way for a referendum on independence, in which an overwhelming majority of South Sudanese voted for secession. ³

Alberta: The secession of the former province of Alberta province of Canada was a culmination of a long-running political feud between Albertans and the Canadian federal government. Alberta, as a resource-rich province with a significant oil industry, long felt that its economic contributions were not adequately recognized or reciprocated within the Canadian federation. Perceived unfairness in federal taxation and revenue-sharing arrangements, coupled with frustrations over regulations impacting the energy sector contributed to a prevailing sense of ‘Western alienation’. These feelings of alienation from the rest of Canada came to a head in the mid-2020s, when Alberta unilaterally seceded.

In the first case, the secessionists did not enjoy social membership, thick or thin. The Sudanese government was active in the systematic violation of the basic rights of the South Sudanese, and in the political repression and economic exploitation of the region. The South Sudanese, despite enjoying nominal citizenship in Sudan, were not full members of the society that dominated them. As such, they did not qualify for traitorhood. Contrast this with the case of the Albertans. Canada is a liberal democracy which guarantees and protects the basic rights of its members. Albertans do not have a distinct national identity – they have, at most, a regional identity (bearing in mind that many Albertans are relatively recent arrivals from other Canadian provinces and other countries). ⁴ They clearly are full members of Canadian society, and so they can certainly qualify as traitors.

But do not they, by the very act of seceding, reject their membership of Canadian society? How then can they qualify as traitors? If it were possible to avoid the (moral) charge of treason by disclaiming membership of one's society, then Lord Haw Haw could have avoided it by, e.g., ripping up his (fraudulent) passport. However, one cannot avoid a charge of treason so easily. If one could, it would be hard to make sense of the idea of treason in the first place: for many of the paradigmatically treasonous actions can be interpreted as rejection of one's social membership.

The upshot of these remarks is that secessionists can qualify as traitors. In some cases, they do not: where they are only nominally (legally) part of the society from which they are seceding, the charge of treason makes no sense. The bare fact that people reside in a given territory does not ground a claim of social membership in the relevant sense. And so, where a group is subject to serious political repression or widespread and systematic violation of basic rights, its seceding cannot count as treasonous, because its members cannot count as traitors. ⁵ However, where the group is not treated in this way, its members can count as traitors.

Who or what does treason wrong?

One important question we need to get clear about at the outset is: who is the victim of treason? That is to say: who or what does treason wrong? It is important to be clear here about the question we are asking. We are asking who is morally wronged by treason. Now we have perhaps three prima facie plausible candidate answers to this question: (a) the state itself, (b) state officials and (c) the people of a state/political community. Let us canvass each of these possible answers in turn. First of all, the state as a victim. Without wishing to press the scales with respect to my argument below as to the nature of treason, we can pretty quickly dispense with this candidate. Clarifying the question above – who is the victim of treason? –should help us to see this: we are asking: who is wronged by treason? And states, morally speaking, do not matter in themselves. Insofar as they have any rights, those rights are grounded by the interests, or derivative of the rights of, the individuals who are members of that state. The reason for this is simple: individuals matter intrinsically, and states do not. ⁶ And for this reason, states cannot be the source of free-standing claims or moral powers. They cannot be wronged unless individuals are wronged. To give an example, suppose that there were a small island state whose people all emigrated voluntarily, with no intention to return, and no attachment to their former country. If some foreign power were to annex this state, and make its territory a global commons, it would not commit a wrong – for no one would be wronged by the annexation of a population-less state. So, if we want to commit to the claim that treason is a distinctive moral wrong, we shall have to say that treason wrongs a set of particular individuals.

So, to the second answer: state officials. State officials, are, of course, individuals, and so this answer would not seem to be ruled out by the argument of the previous paragraph. Indeed, the state officials answer is consonant with a traditional view of treason: the view that the victim of treason was a particular person – the sovereign. One reason we might reject this view – in its traditional form – is that it smacks to us of a patrimonial view of statehood: the view that that states are, in a sense, the personal property of their rulers. However, we might reject the view that treason wrongs just a single individual, while endorsing the view that the victims of treason are a distinct sub-set of individual members of a state – some particular groups of state officials. There are two problems here: (a) it makes it conceptually impossible for any kind of conspiracy involving most or all state officials to count as treason. However, we can easily imagine even a relatively large number of state officials exercising their legitimate powers in ways we would recognise as treasonous – selling out their country's interests to a foreign power, for example. The second problem is that (b) the view is incompatible with the claim that ordinary members of a state are wronged by treason. This is implausible: ordinary people surely are wronged by treasonous activity towards their state.

A further complication connected with the view of state officials as the victims of treason is that there might be a plausible case for this claim based on the fact that subjects of a legitimate state have a defeasible obligation to obey the directives of state officials. ⁷ However, the mere breach of the obligation to obey the law clearly is not treasonous. Pickpockets and vandals, whatever else they might be, are not traitors.

So now the final view: treason wrongs the people of a state or political community. First of all, why the disjunctive? We might think that a group of people can stand in the right kind of relationship to one another – perhaps in virtue of having had a state – to ground presumptive obligations of loyalty, the breach of which could count as treasonous, without being co-citizens as such. Take, for example, the people of the defeated German state in 1945; their state was abolished, and they were ruled by occupying foreign powers. Nonetheless, it is still makes sense to talk of treason in this context: a German who set back his co-nationals’ interests in, say, the protection of their basic rights could be plausibly accused of treason. So, we do not want to restrict the potential victims of treason to just the people of a particular state; other kinds of political community can also be wronged by treason. I do not want to specify what kind of relationship is necessary to constitute such a relationship – whether co-nationality, or shared residence in a colonial administrative unit, is sufficient to constitute a group as a political community in the relevant sense. This would take me too far afield for present purposes, and is not necessary, as we will see, to answer the paper's central question. To re-iterate: treason is a wrong committed against the individual members of a given political community. They – the ‘people’ – and not the state itself, or its officials, are the victims of treason.

Treason as betrayal

We have gone some way to working out who can be a traitor, and who their victims are. But what kind of actions can count as treasonous? In order to answer this question, we have to keep in mind the strongly negative moral valence associated with the predicate ‘treasonous’. In other words, it will not do just to point out that treason is associated with betrayal – with breaching the trust of those to whom one bears an important social relationship. As we shall see, there are all sorts of harmless betrayals; certainly, at least, there are betrayals that are not even presumptively wrongful. ⁸ So we need to work out not merely why treason is distinctively wrongful, but why it is presumptively wrongful at all. ⁹ In other words, the line I am trying to canvass is that treason supervenes on another (presumptive) wrong.

But why is it not, by itself, enough to count as treason that one breaches the trust and expectations of those to whom one has obligations of loyalty? Consider the following case:

Olympic Committee: Ruritania and Borduria are both launching bids to host the Olympic Games in 2036. Ruritania is a high-income country, with a well-developed sporting infrastructure, and wide popular participation in sport and physical exercise of all kinds. Borduria, is a middle-income country. Its people are highly sedentary. Sport has a low social profile, and there is little enthusiasm for physical activity generally. In the relatively recent past, however, Borduria was ruled by a sport-fixated dictator (since overthrown), who flooded the country with Olympic-size swimming pools, stadiums and other sporting facilities. Aside from the odd stadium-rock concert, these are all sitting idle. In addition, a large proportion of its people are employed by the tourist industry. The number of visitors to the country has dropped, however, in recent years, due to the capital city's lack of attractions, and general shabbiness.

First of all, we should stipulate that hosting the Olympics has lasting (positive) effects on overall participation in physical exercise and on the host country's tourist industry, and that these benefits are greater than the cost of hosting. This is quite the stipulation – the evidence on all counts is mixed. ¹⁰ However, having made the stipulation, it seems clear that it would be better, from an impartial point of view, for Borduria to host the Olympics. And now suppose that Ruritania has made the head of its delegation to the International Olympic Committee a trusted and long-serving senior civil servant. This civil servant is a scrupulously honest, impartial and conscientious individual. Unbeknownst to those who appointed him, however, he is also a radical cosmopolitan – as such, given that it is clear Bordurians would benefit more from hosting the Olympics, and that there are about as many Bordurians as Ruritanians, he lobbies, not on behalf of his own country, but on behalf of Borduria. The result is that Borduria, not Ruritania, is selected to host the 2036 Summer Olympics.

Many of the elements of treason are present in this case. The cosmopolitan civil servant has acted in a way that is contrary to the legitimate expectations of members of his political community, and, plausibly, breaches their trust (Fabre, 2020: 439–440). And it is also true that our cosmopolitan civil servant has harmed the people who placed trust in him: the people of Ruritania are worse off than they would have been had he acted otherwise. However, it is not clear he has wronged the people of Ruritania. ¹¹ And it is certainly not the case that he has committed treason. Indeed, the accusation of treason is so misplaced in this case that we can only imagine it in the mouths of hysterical sports journalists. Why is it incorrect – absurd, even – to accuse the civil servant of treason? ¹² It seems plausible to say that he has betrayed the people whose interests he was supposed to represent. However, he has notbetrayed them in the right way. The wrong kind of interests seem to be targeted by his betrayal. Whatever interest individual Ruritanians might have in their country hosting the Olympics, those interests are not on a par with the interests that are affected in paradigmatic cases of treason. Kim Philby, William ‘Lord Haw Haw’ Joyce, Vidkun Quisling, et al., harmed their countries’ interests in far more significant ways than the cosmopolitan civil servant.

Treason as foreign policy usurpation

It seems that treason must affect the people to whom the duty of loyalty is owed in a particular way. It must target a particular kind of interest. The reason the accusation of treason is inapposite in the civil servant case, but apposite in the case of Philby, Joyce and Quisling is that the latter three targeted the interests of their people in collective security and political self-determination. At this point, we should turn our attention towards a promising account that seems to explain not only the nature of treason, but also its presumptive wrongfulness; this is the usurpation account defended by Younjae Lee. According to Lee:

Members of the state are, then, required to refrain from activities that threaten the core institutional resources the state requires to protect itself. When a citizen participates in efforts to undermine the core institutional resources the state requires to protect itself, the citizen disturbs the way in which power is distributed within the polity and enters a domain of exclusive governmental power. In short, the relevant wrong here should be thought of as usurpation of state power. (Lee, 2012: 336)

There are two things worth noting here: we have a clear and plausible delineation of the kind of state/collective interests that are relevant to the charge of treason: these interests are limited to states’ security/defence interests. And, secondly, we have a candidate explanation of the wrongfulness of treason: it is wrong, according to Lee, because it is a species of the crime of usurpation: wrongfully infringing on the exclusive rights of states and arrogating for oneself rights that are solely held by the state and its officials.

The problem with this account of disloyalty, however – setting aside that it makes a mistake about who the victims of treason are – is that it would seem to deliver precisely the wrong verdict in the following historical case. In June 1940, Marshall Philippe Petain was appointed Prime Minister of France by the President, Albert Lebrun. Petain soon signed an armistice with the invading Germans and set up a collaborationist regime from the spa town of Vichy. Meanwhile, Charles de Gaulle, a government minister and brigadier general, resigned from government and fled to London, where he launched a broadcast appeal to his countrymen, urging them to resist German occupation and to continue fighting with their British allies. De Gaulle would soon launch the Free French Forces, which fought alongside the British and later Americans against the Vichy French state and Germans.

It is quite clear that de Gaulle's actions involved an attempted usurpation of the rights of the legitimately constituted French state. In June 1940, Petain enjoyed both institutional legitimacy and (as far as it is possible to tell) overwhelming popular support. Petain was the legitimate ruler of France in June 1940; insofar as we think he was a traitor, we cannot explain the wrongfulness of his treachery in terms of usurpation. Let me return to the Petain issue a little later, and concentrate on the more straightforward case of de Gaulle for now. De Gaulle was a little-known figure in June 1940, and his (subsequently) famous appeal was heard by few, and heeded by fewer. Yet few would consider de Gaulle's actions all things considered wrongful – at the very least, few would consider them wrongful because they involved a usurpation of state power. ¹³ More importantly, few would consider de Gaulle a traitor. There are two replies that Lee could make on this point: the first is that his ‘usurpation’ account need only commit us to the presumptive, or perhaps even the pro tanto, wrongfulness of usurpation. It need not commit us to the claim that every instance of usurpation is, ipso facto, all things considered wrong. We can perfectly well concede this point. The second reply that Lee can make is that hisaccount only entails that de Gaulle was guilty of the crime of usurpation – not of the wrong of disloyalty (treason). As we have seen, treason is a species of usurpation: the extension of the latter term is broader than that of the former. De Gaulle, Lee could argue, did not act ‘such as to threaten the core institutional resources the state requires to protect itself’. He acted, Lee could argue, in defence of these interests. However, this reply will not do: de Gaulle explicitly appealed to French soldiers and armaments workers and engineers, within or outside Britain, to join him (Jackson, 2018, 130). On any plausible reading of ‘threaten the core institutional resources the state requires to protect itself’, de Gaulle and the Free French acted in this way: not only did they fight alongside the Allies, but they peeled off several French colonies and overseas possessions from Vichy control, some of which contained important resources, or were otherwise strategically significant.

The problem here is that Lee makes the subject of the wrong the state, and not some other entity – say, the people, as on my account. We might be able to say something like this: de Gaulle, although he threatened the ability of the French state to protect itself, acted in such a way as to promote the interests of the French people in their long-term ability to defend themselves. Suppose counterfactually, however, that in the course of the war against the Vichy State, the Free French had to destroy almost all of the state's fortifications, strategic strong points, heavy field guns, ships and so forth ¹⁴ – it would be plausible to say that these actions would threaten the long-term ability of the French people to defend itself, including after its liberation. However, whether these actions are treasonous depends on their instrumental relationship, in this case, to the restoration of French self-determination. As it happens, de Gaulle and the Free French were fighting to restore a genuinely independent, non-puppet French regime. As such, despite acting in such a way as to ‘threaten the core institutional resources the state [required] to defend itself’, they did not act treasonously.

De Gaulle and the Free French were not traitors. I do not think this is a particularly controversial judgement. Neither, perhaps, is the judgement that Petain was a traitor. ¹⁵ On this point, notice that Lee's account plausibly does not allow us to make sense of the disloyalty/treason charge against Petain, and certainly does not allow us to account for the wrongfulness of his disloyalty/treason. On the second point, as we have noted, Petain was the legitimately constituted head of the French state in 1940. And on the first, it is far from clear that an adequate characterisation of Petain's actions is that they were such as to undermine the state's core institutional resources that enabled it to defend itself. A more accurate characterisation of Petain's actions would be to say that he wielded the institutions of the French state in such a way as to make France subordinate to a foreign (and hostile) power. Characterising Petain's actions in this way, rather than in terms of their effect on the French state's ability to defend itself, gets us closer to the conceptual core of treason. Petain's actions were a betrayal: he betrayed the French people as a whole insofar as he helped to frustrate their right to collective self-determination, and he facilitated the systematic violation of the rights of individual French citizens – in particular, Jews.

The disjunctive account of treason

Lee's account is correct insofar as it narrows the scope of the interests that treason can be said to threaten. However, it mischaracterises the relevant interests. The interests that treason targets are (a) interests in self-determination and (b) interests in physical security. At a first pass, then, X acts treasonously if and only if they:

participate in significant efforts to subject – in whole or in part – the people to which they belong to ongoing violations of self-determination, ¹⁶ or

participate in significant efforts to undermine or to systematically violate the basic rights of the people to which they belong, including by significantly undermining the ability of people to engage in collective defence of their basic rights.

The advantage of this account is that prima facie it convicts Petain and acquits de Gaulle. Insofar as it locates the wrong of treachery not in wrongdoing against a state, but against individuals, it allows us to capture cases like Vichy, and other cases involving (at least, legitimately constituted) puppet regimes better than the usurpation account. Both conditions are intended to be individually sufficient. The main reason for this is that it is easy to imagine acts that would not threaten the ability of people to exercise their self-determination but might significantly undermine their ability to defend themselves and their basic physical security. Imagine, for example, an MI6 agent who passed on sensitive information to a minor but violent terrorist cell. The agent would clearly be a traitor, even though his actions might not threaten the ongoing ability of the United Kingdom to be self-determining. The treachery would lie in the fact that he had acted to undermine the British peoples’ collective efforts to defend their basic rights from physical harm. This second condition seems necessary to account for clear cases of treachery such as this. However, adopting this second condition would seem to be in tension with what Isaid earlier about the Free French war effort; there Inoted that it might have been necessary for the Free French to fight in such a way as to hamper the long-term ability of the French to defend themselves, but that it would have been treasonous for them to have done so. In fact, there seem to be many similar cases: occupying armies often make use of the equipment, munitions and fortifications of the peoples they occupy, requiring liberating forces to destroy or incapacitate them. However, we should not call such actions treasonous. We should thus revise the second condition as follows. X acts treasonously if they:

• (ii*) participate in significant efforts to undermine or to systematically violate the basic rights of the people to which they belong. These efforts include significantly undermining the ability of people to engage in collective defence of their basic rights, unless X acts in a way that is necessary to protect either their people from (a) ongoing wrongful violations of self-determination, or (b) systematic violations of basic rights.

There is an objection to adopting this condition: it seems to entail that those who commit large-scale violations of the basic rights of their own people – e.g., through committing crimes against humanity – are committing treason. We should, on this objection, be careful to distinguish between different ways in which individuals can do wrong. Crimes against humanity are one thing, treason another. However, recall that core to the notion of treason is betrayal. And now remember that we have argued we should conceive of treason not as betrayal of one's state, but of one's compatriots. There are hardly worse ways to betray people to whom one is attached than by systematically attacking them – killing, maiming or torturing them. Once we abandon the state-centric approach, it seems less odd to think of crimes against humanity – committed against one's own people – as being treasonous. Another important point: making membership of people a condition for treason captures the sense in which treason is a form of betrayal. Membership of people makes us stand in certain relations with others which grounds something distinctive about harming some of their interests.

Another objection to my account of treason is that it does not order the conditions; that is to say, it does not give us any guidance of what to do in cases where protecting self-determination or protecting basic rights are incompatible. There is a sting in this objection. Earlier I motivated my account by claiming that it gave us the right answer in the Petain/de Gaulle case. However, there are plenty of people – and not merely collaborationists or Vichy apologists – who argued during Petain's trial for treason, and subsequently, that he capitulated to protect French lives (and indeed, to some extent, French self-determination). Raymond Aron, for instance, claimed that:

It is not impossible that the armistice and Vichy, for two and a half years, attenuated the rigours of the occupation. In interposing the French administrative apparatus between the Gestapo and the French population, the policy […] procured for the 40 million French who found themselves hostages, multiple although mediocre advantages that are as difficult to quantify as to deny. (Jackson, 2023: xxx–xxxi)

It seems that my account, because it does not give lexical priority to self-determination over the protection of basic rights, cannot give us clear guidance in the Petain case. However, consider a contrasting view of Petain – that of Leon Blum, the former prime minister of France, who had himself been deported to Buchenwald during the occupation:

“Betray” means to hand something over, deliver it up. I would say, despite everything, that that the armistice did offer the French people a certain number of guarantees and protections. It was the duty of the government that had signed it to ensure that these were respected by the enemy. But these conditions were given up point by point, like everything else. (Jackson, 2023, 160)

What Blum's remarks suggest is that there may be some acceptable trade-offs between protecting people's self-determination and protecting the basic rights of individual members, but that the arrangements facilitated by Petain (a) failed to adequately compensate for the loss of self-determination with protections of basic rights, and that (b) Petain's actions failed to meet an appropriate balance of the two considerations. With respect to the latter point, we can appeal to the concept of proportionality. This concept is familiar from the morality of war, where we often expect state leaders to make judgements about the permissibility of protecting sovereignty at the expense of the lives of their people, or vice versa. It does not seem so strange, in my view, that this concept should apply in the case of treason.

A final point: the account of treason I have defended here might seem to be extensionally adequate. However, can it explain the distinctive wrongfulness of treason? After all, attenpts to undermine the ability of people to protect themselves, or to rule themselves, would seem to be wrong regardless of whether they are committed against one's own people or not. However, we can think about treason as an additional and distinctive wrong, in the same way that there is some additional wrong to someone who is harmed by a person with a duty to protect or care for them. ¹⁷

Is (unilateral) secession treason?

Self-determination and treason

We now have a working account of treason and can turn to answering the central question of this paper: when, if ever, is unilateral secession treason? Let us start with a maximalist answer to this question, and see how far it takes us. Unilateral secession is always treasonous. For secessionists to unilaterally secede is (a) always for them to violate the self-determination of the people of the state seceded from, or is (b) always such as to undermine the ability of people to engage in collective defence of their basic rights (without being necessary to protect their self-determination). ¹⁸ Consider (a) first. How might unilateral secession violate the self-determination of the people of the political community that is seceded from – the people of the remainder state? One obvious way is by contravening the clearly expressed desires of the majority within the remainder state who, presumably, oppose the act of secession. But is frustrating a majority decision – even on an important decision such as secession – treasonous? ¹⁹ There is a clear sense in which the people of the remainder state will remain self-determining after the secession: they will not, in the usual case, be subjected to ongoing domination by either the secessionists or other states. So, the secessionists are treasonous in the same sense as that of Petain, who assisted in the subjection of the French people to ongoing domination. However, perhaps the frustration of majority rule might be just another way of being treasonous.

One obvious objection here is that there are all kinds of ways to frustrate the will of the majority: judges may overturn decisions taken in popular referendums, or of the democratically elected legislature, conscientious objectors in the civil service or administrative bodies may refuse to give effect to popularly-endorsed policies, and a small minority of protestors may make impossible or unduly costly the implementation of the will of the people. These activities are not, usually at least, considered treasonous. However, in turn, someone might object that these activities are all legitimate ways in which the will of the people might be checked. ²⁰ Secession is different from these case. When done unilaterally, it is not legitimate. However, notice that some of the examples I gave of ways in which the popular will might be frustrated do not employ legitimate institutional channels. Suppose that the public have overwhelmingly voted for a party that has promised to clear a particular forest to make way for grazing land for cattle. Imagine that a small band of protestors frustrate this policy by chaining themselves to trees. This is clearly an illegitimate way of frustrating the majority rule. But it is not treasonous. So, merely frustrating the popular will, even by illegitimate means, is not the kind of violation of self-determination that entails treason. What about the frustration of the popular will on such an important matter as secession? It seems that the answer to this question must rely on some account of the wrongfulness of unjustified secession: whether secession counts as serious in the relevant respect will depend on how wronged the people of the remainder state are by the secession. This argument about majority rule just pushes the question back a step.

One thing to note before we proceed: whether or not secession is treasonous is independent of whether we think unilateral secession can be justified. We might think that a group never has the right to unilaterally secede from a legitimate, rights-respecting, non-usurping state. However, it does not follow that secessionists wrong the people of the remainder state in the relevant sense. These are two separate questions, as I will show in the subsequent sub-sections. The bare fact that we endorse a restrictive (remedial-right-only) view of secession does not commit us to a positive answer to the treason question regarding secessionists.

Treason and territorial rights

Perhaps there is another way that unilateral secession may be said to violate the self-determination of the people of the remainder state; namely, by violating their territorial rights. The thought here might be that there is a tight, perhaps necessary, connection between self-determination and territory, such that anything that violates people's territorial rights violates their right to self-determination. The natural thought here is that territory is necessary for the exercise of self-determination, and that a loss of territory sets back – at the very least – people's ability to be self-determining. It should be obvious what is wrong with this line of argument, however. Some territory might be necessary for people to be self-determining – at least, to exercise their self-determination in the form appropriate to a territorial society – but it is clearly possible for states and peoples to lose territory and to remain as self-determining as before. ²¹ States, for example, sometimes carry out land swaps with one another. ²² This practice would scarcely be comprehensible if a state's ability to be self-determining were bound up with the retention of the full plenitude of its territorial entitlements. Moreover, even non-consensual losses of territory might not threaten the ability of a state to retain its self-determination. ²³ It seems that even quite significant losses of territory – provided they do not leave the remainder state unviable – are compatible with the retention of self-determination by the people of the remainder state.

Perhaps, then, the loss of territory need not always entail that the people of the state as a whole lose their ability to be self-determining. However, what about the people who live in the lost territory? Suppose that a separatist junta took control of the Canary Islands, and, against the wishes of its inhabitants, unilaterally seceded from Spain – would it not make sense to say that the people of the Canary Islands had their self-determination set-back or infringed? This claim seems reasonable, and it is indeed important to consider cases within our account of treason where an individual subjects only a portion, rather than the entirety, of a population to foreign or alien rule in a treasonous manner. However, we should pause here. As I havenoted before, when we are thinking about whether an action is treasonous or not, we need to consider whether it matches up to the strongly negative moral valence of treason. That is not to say that treason is ipso facto always all things considered wrong. However, it does need to capture the presumptive wrongfulness of treason. And so, we need to think about why people have an interest in remaining part of a state when they so desire, and why they might be wronged when this desire is frustrated. The point is not simply to point out a way in which unilateral secession – when it subjects people to state they do not want to be part of, and rips them from a state to which they are attached – is a betrayal. The point is to explain why it is a treasonous betrayal.

It will not do, of course, to adopt a consent theory of political legitimacy in order to explain the wrongfulness of subjecting people to a new state against their will. If we took this tack, we could simply explain the wrongfulness of secession in terms of the failure to secure consent for the new secessionist jurisdiction. However, this would be an unpromising move, as most political philosophers reject the consent theory of political legitimacy. They do not think that people are wronged when they are coerced by states to which they do not consent. We must instead appeal to some other moralised interests that might be set back by being subjected to a secessionist state against one's will. One thought is that bundling anti-secessionists into a new state against their will would be to impose alien rule on them. The idea here is that, although consent is not a necessary condition of legitimate rule, some kind of fitting relationship between individuals and their state is (Stilz, 2019). Perhaps individuals have an interest in living under institutions that reflect their political values, for reasons of personal autonomy, and their current state fulfils this better than would a separatist state (Stilz, 2019; Philpott, 1995). Perhaps, instead, individuals have an interest in living under independent institutions with people they have a valuable relationship with as a result of having a history of institutional co-operation. And perhaps individuals have an interest in not having the institutions and social practices they have developed over time interfered with by others (Stilz, 2011; Moore, 2015).

Secessionist majorities

We have some explanation of why forcing people into a state against their will might be seriously wrongful, and the kind of wrong that could plausibly be associated with treason. However, notice that in some cases of unilateral secession, almost everyone in the seceding territory supports secession, and, in more cases, a majority do. ²⁴ What should we say about these cases? Does it make a difference – at all – that the majority support secession, or does the mere fact that there are some individuals who oppose the secession and are, presumably, going to be subject to alien rule mean that unilateral secession is seriously wrongful (and, for our purposes, treasonous?). We can point out here that for any of the interests that we picked out above to explain why individuals can have a claim to remain in their current state, something similar can be said to ground a secessionist claim to leave the state. For secessionists can claim that being trapped in their current state frustrates their political autonomy, or that they have a special relationship with one another that gives them a claim to self-determination, or that the local institutions they have set up must be robustly shielded from interference by the central government. And if there is a secessionist majority in the territory, and they have these interests, why should we think that the anti-secessionist minority are ipso facto wronged by secession? We should not give greater weight to the interests of the anti-secessionists than the interests of the secessionists. And if we do not, we need some way to explain how the anti-secessionists are wronged by secession. Of course, I do not mean to suggest, by this line of argument, that all secessionist groups have a claim to unilaterally secede, nor indeed do I mean to make the weaker claim that all secessionist groups with majority support in their zone of operation have a claim to secede. I mean only to point out that any attempt to explain – in terms of self-determination – why individual anti-secessionists resident in a seceding territory are wronged threatens also to ground a right to self-determination for secessionists. ²⁵

One thought here might be that the anti-secessionists are wronged if they are lumped into a new separatist state, even though their jurisdictional preferences can be accommodated. For example, suppose that Venetian nationalists succeed in their aspiration to effect secession from Italy. Imagine there is a strong anti-secessionist majority in the province of Verona, which borders the rest of Italy. This Veronese province (or, at least, the anti-secessionist parts of it) could be excluded from the new Venetian state without making the latter unviable, or creating costly administrative or strategic headaches. In this case, the Veronese would be wronged by being forced into a new state contrary to their wishes (and so secession would count as treasonous). An even clearer case is where the secessionists are not even a majority in the seceding territory as a whole. Of course, secession is rarely so simple. In many cases, the anti-secessionist minority is thoroughly intermixed with the secessionist majority, making it impossible to allow opt-outs without creating many enclaves, potentially leaving the new Venetian state incapable of administering basic justice. ²⁶ Especially if the anti-secessionist minority is small, in this case, we might think that they are wronged by being lumped in with the secessionists, merely that it was not possible to satisfy everyone's claim.

To recap, I have been trying to motivate the claim that unilateral secession wrongs the anti-secessionists in the separatist territory. This might seem a circuitous route to establishing whether secession is treasonous. However, as we have seen, treason cannot be just any betrayal of interests; it must involve a violation of basic rights, or a violation of the self-determination of whole or part of people. However, it seems that unilateral secession only counts as a violation of self-determination, in the relevant sense, if anti-secessionist minorities or majorities are avoidably lumped into a secessionist state, or if the secessionists commit (or intend to commit) large-scale violations of basic rights, or leave the people of the remainder state incapable of self-determination (by, say, leaving their state unviable). And so, it seems plausible that secessionists – insofar as they enjoy majority support in the separatist region, and do not annex any discrete anti-secessionist neighbouring regions – can avoid the charge of treason. No doubt, unilateral secession is a setback to the interests of the people of the remainder state. In some sense, it may also be a betrayal. However, it need not be the kind of betrayal that can count as treason.

A final point: perhaps someone might say that my approach here is wronghead. It is not sufficient to point out to the people of the remainder state that they are free to remain self-determining, and that they have not had their rights violated in sufficiently serious a way to count as treasonous, and so on. The ending of the political relationship between co-citizens counts, on its own, as treasonous. An anonymous reviewer suggests that the closest analogy here is with the ending of a marriage: the ending of such a relationship might, itself, count as an analogous betrayal, even if there is no other wrongdoing involved. However, if this were true, then any instance of secession, whether justified or not, would count as treasonous. So too, plausibly, would even advocating for secession. Perhaps this is not a reductio. After all, we have a concept (and in many places, a crime) of sedition. However, on the general line of reasoning that mere exit counts as treasonous, mass or perhaps even individual emigration would also count as treasonous. If merely ending the political relationship counts as treasonous, it is hard to resist this conclusion. And this is certainly a reductio.

Wars of independence

So far, I have considered only whether affecting secession itself might be treasonous. That is to say, I have been talking only about secessionists taking control of the state apparatus, declaring independence, disobeying anti-secessionist or public order laws, etc. However, secessionists often go to war for the sake of independence. It is one thing to take control by peaceful means of administrative apparatus; it isquite another to shoot at and bomb state officials as a means of securing self-determination. Even if the former is not treasonous, the latter surely is. However, I argue that whether or not this is the case depends on two questions: (a) who initiated the violence, and (b) does the state have the right to resist the secession with violence? In certain cases, I will argue, even secessionist war need not count as treasonous.

There are two ways in which secession attempts can result in war. The first is perhaps the more familiar way: the secessionists take up arms and initiate hostilities in an attempt to remove state officials from their territory. One famous example here is the assault on Fort Sumter by the secessionist Confederate State Army in 1861. ²⁷ A second way is where the secessionists merely take control of the state apparatus by peaceful means, and are then attacked by the forces of the remainder state. Someone might ask: how is it possible for secessionists to take control of the state apparatus peacefully? If, for example, there is some level degree of political and administrative decentralisation, and if the secessionists already control (some) local institutions, it will be relatively easy for them to affect secession without any bloodshed – they merely have to instruct the local civil service, and the citizenry to comply with their directives, and to ignore those from the central government. It might be particularly easy for the separatists to affect secession without bloodshed when the local population largely supports them. In this case, they need not rely on a great deal of coercion of bring about separation. In any case, however, what difference does it make as to whether secessionists fire the first shot? Waging war against one's government is, paradigmatically, treasonous.

In fact, the question of who fired the first shot makes quite a lot of difference. If a central government attacks separatists with the aim of re-establishing control over its territory, or stymieing secession before it begins, it may be harming the separatists in ways that they are not liable to be harmed, or otherwise acting in a disproportionate way. For even if the separatists act wrongly by seceding, it does not follow that the central government may defend its state's territorial integrity with lethal force. If a state does attempt to inflict disproportionate harm on separatists, then, presumably, separatists may defend themselves against this harm, even if they committed wrong by seceding. By analogy, imagine that a thief attempts to steal £20 from you. No doubt this is wrong. However, the thief is liable only to a limited degree of defensive harm from you. If you tried to kill the thief – supposing this was necessary to reclaim the £20 – the thief would have the right to defend himself; he would have the right to inflict defensive harm on you. Despite his initial wrongdoing, there would be nothing wrong with him inflicting defensive harm.

Sometimes people are permitted to inflict defensive harm on state officials, even in cases where they are guilty of an initial wrongdoing that would leave them to a lesser degree of harm. For example, consider the following (partly fictional) case:

Animal-loving Security: In 2004, the United Kingdom introduced a ban on fox hunting with dogs. On the day of the House of Commons's final vote on the ban, several protestors opposed to the ban invaded the chamber. Unluckily for these protestors, the security staff at the House of Commons was exclusively made up of militant vegetarians and animal rights activists. ²⁸ The protestors were met with frenzied brutality by the security staff, who inflicted on them a degree of force far in excess of that required to physically remove from the chamber.

In this case, we can plainly see that the protestors were initially in the wrong. They were protesting in an illegitimate way, and their cause does not justify such an extreme form of protest (indeed, their cause is manifestly unjust). However, if the protestors were about to have disproportionate harm inflicted on them, then they may, provided it is necessary to do so, use defensive force against the security staff. Their being initially in the wrong does not obviate their right to resist disproportionate harm. Does a similar line of reasoning apply to secessionists? This is the question I will address in the following paragraphs. However, first we should head off an important question: why does this matter, for the purposes of establishing whether secessionist wars of independence are treasonous? Even if secessionists are permitted to defend themselves against the central government, taking up arms against one's state in order to throw off its rule is paradigmatically treasonous. This might seem a strong line of argument once we have conceded that treason is only presumptively, not all-things-considered wrongful. But in fact, the presumptive wrongfulness of treason presents a problem for this line of argument. Using defensive force against an attack to which one is not liable is not a presumptive wrong that can be outweighed or trumped by other considerations. It is not a wrong at all. Secessionists defending themselves against disproportionate attacks from state officials are on a par with anyone else using defensive force against wrongful attacks by the state. And so, if self-defence against disproportionate or otherwise wrongful attack by the state is not even presumptively wrongful, then it cannot be treasonous.

Of course, what I have just said about the permissibility of self-defence against state officials is controversial. There are some – for example, Yitzhak Benbaji and Daniel Statman – who argue that by complying with a set of fair and mutually beneficial social rules, individuals can waive some of their basic rights, including their right not to be killed by state officials (Benbaji and Statman, 2019: 37–70). Indeed, on Benbaji and Statman's view, one may lose one's right not to be unjustly executed merely by complying with customary social rules, as long as these are fair and mutually beneficial (Benbaji and Statman, 2019: 44). ²⁹ It would take me too far afield to discuss Benbaji and Statman's views. The entire thrust of their account of the morality of defensive harm is in deep opposition to the revisionist foundations of the morality of war that I have been taking for granted here. However, Ishould make two points: the first is that Benbaji and Statman set down some conditions for social rules to be morally efficacious; that is, for them to bring about the intended redistribution of moral rights. And note two things: the first is that explicit consent to social rules is not necessary for redistribution: habitual obedience to social rules is sufficient (Benbaji and Statman, 2019: 40). The second is that two societies may lie just above, or just below the threshold for the moral efficacy of the social rules. And that means that two individuals who do not differ at all in respect of their actual conduct – they are both habitually obedient to social rules – will have different basic rights. The person who lives in the society with morally efficacious social rules may lack a right against being killed by public officials, and the other person will retain this right. This looks like a troublesome instance of moral luck: it is suspected if someone's basic rights (and the harm to which they are liable) should depend on luck. ³⁰

Why think that the state is not permitted to attack secessionists – that waging war to resist separation would be disproportionate? There are two answers we can pursue here, and I will remain neutral between them. The first is that anti-secessionist war is wrongful because those who actively pursue secession – the officials of the separatist party or parties, those who carry out its orders to take control of the state apparatus, and those who attempt to defend the new separatist state – are not liable to attack, even if that is necessary to restore the unity of the state. The second answer is that those active in pursuing secession may be liable to attack, but that it is not possible to unify the state without committing acts of war that would result in disproportionate harm to innocents. The first answer says that the state does not have just cause to wage war against the separatists (McMahan, 2005). The second says that the war would not satisfy proportionality. We can map both answers onto two analogies. The first answer says that attacking separatists is like attacking another country in response to a diplomatic insult, even the state officials who inflicted the initial insult are not liable to that degree of harm (if any). The second answer says that waging anti-separatist war is like invading a country to punish the assassination of a public official, or to retrieve stolen heritage items; the wrongdoers themselves might be liable to be harmed, but to wage war for the sake of these goals would clearly be disproportionate. Why endorse either answer? Are separatists not, from the point of view of the morality of war, in the same position as foreign invaders? Both are violating the territory of a sovereign state. Resisting this kind of wrong is usually thought to be the paradigmatic instance of a just cause for war. ³¹ But notice that there are some important differences between secessionists and foreign invaders. As I argued above, in some cases of secession – those where there is a (significant) majority for secession in the seceding territory, and no discrete anti-secessionist regions – it is difficult to see how the secessionists violate anyone's right to self-determination; not the people of the remainder state as a whole, nor the people of the seceding region. In contrast, in cases of foreign invasion, it isquite clear that the people of the region – except in the unlikely case where they want to be annexed – are wronged. So, the analogy between unilateral secession and foreign invasion is not straightforward. If we want to explain why states have the right to resist losses of territory, we need to pick out some significant interest that is set back, or some serious wrong that is suffered, through the loss of territory. As I have argued, this is surprisingly difficult to do in at least some cases of secession.

In any case, as I have noted, we do not even to say that those who affect unilateral secession are not liable to harm to rule out the claim that anti-separatist war is often impermissible at the bar of jus ad bellum. We can say that anti-separatist war is impermissible – in cases where secessionists are in the majority and where they are notcarrying out a landgrab – in virtue of the failure to satisfy wide proportionality. In other words, the risk of death and other serious harms to innocents outweighs, in this case, the prevention of the harm of loss of territory. If we do say this, we shall be able to characterise anti-separatist war as unjustified aggression. As such, we will not find anything morally objectionable in resisting it.

Summing up, fighting a war of independence against one's (legitimate) state need not be treasonous where: (a) there is a secessionist majority in the seceding territory, and there are no discrete anti-secessionist regions being lumped into the separatist polity, and (b) the aggression is initiated by the remainder state. There is, however, one final issue to address, which is the position of members of the remainder state's armed forces who have switched their loyalties to the separatists. Members of a state's army typically take an oath of allegiance to their state. When they fight for a separatist state, even when that separatist state did not initiate the aggression, they violate that oath. One thing is quite clear: their fighting against their state is a betrayal. However, is it presumptively wrongful? One thought here might be that soldiers have acquired a special duty (that is, a duty generated by some special undertaking or promise) not to fight against their former comrades, and that violating this is at least presumptively wrongful. In this case, perhaps we can say that fighting for a separatist state is treasonous. However, it is treasonous only in virtue of the fact that the soldiers and officers have taken oaths – those who serve in defence of the separatist state without having taken such an oath do not commit treason.

Conclusion

In this paper, I have (a) set out a disjunctive theory of treason, and (b) shown that, on this account, unilateral secession need not be treasonous. In fact, I have shown that even waging wars of independence need not be treasonous. To finish on a programmatic note: it might strike some readers that the question of whether secession is treasonous is of little intrinsic interest. Treason, as I have noted, is a wrong that supervenes on an existing presumptive wrong. A justified charge of treason is – morally speaking – just the cherry on the cake. But this, on reflection, cannot be true. That someone has not merely harmed the members of a political community, but also committed treason against it, might justify more harsh treatment than would otherwise be justified. Similarly, an activity that would count as treason may justify restricting the liberty of its participants in ways that would not normally be permissible. Let me briefly explain both points.

Just war theorists disagree among themselves about what is called the ‘moral equality of combatants’ – namely, the question of whether soldiers on both the just and unjust sides of the war – have the same moral rights to kill and inflict serious harm (McMahan, 2006). Reductive individualists – those who believe that the morality of war is reducible to the morality of individual self-defence – deny the moral equality of combatants. However, they generally demur from claiming that (most) individual soldiers on the unjust side of the war should be punished for killing and other acts of war (McMahan, 2008; Fabre 2016; Shue, 2008).

However, note that if fighting in separatist war is treasonous, we might be able to justify a more stringent treatment of combatants post-bellum than in cases of inter-state war. Even if, all things considered, we should err on the side of leniency when it comes to combatants, the charge of treason should have some implications for the status of combatants post-conflict. And it will certainly have implications for the treatment of separatists leaders after war. ³²

The second implication of calling secession treasonous is, prima facie, to justify restrictions on actions that have at least the same form as legitimate, normal political activities. For example, it may be permissible to forbid explicitly secessionist parties from participating in elections, or for a party to promise to affect secession in an election manifesto. If unilateral secession is (potentially) treasonous, then it is easy to see how states might be justified in legally suppressing secessionist politics, just as they are permitted to restrict seditious activity, and to criminalise open calls for foreign intervention or sedition. ³³ However, I have been arguing that unilateral secession very often is not treasonous. As such, in these cases at least, the right of the state to punish or restrict treasonous activity will not justify punitive or heavy-handed measures against separatists.