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Just War, Jihad, and Terrorism

David
Forte
Cleveland-Marshall College of Law

Just
War, Jihad, and Terrorism

The Philadelphia
Society
National Meeting
Sheraton Society Hill Hotel
April 1, 2006


In
northern Arabia, the Prophet confronted a tribe that had attempted to turn his
believers away from the worship of the one true God. God spoke to the Prophet. God
directed him to wreak revenge on that tribe. The Prophet obeyed and ordered the
attack.

The
attack was successful and those who fought for the one true God slew every adult
male in the infidel tribe including its leaders. They burned the tribe’s cities, and took everything the tribe had
possessed as booty, including women, children and livestock.

They
brought the booty to the Prophet who went out to see them. But the Prophet, for from being pleased, was enraged. “Why have you
saved the women?” he demanded. “Kill
all of the male sex,” he ordered, “even the children. And put to death all
the women who are not virgin. You may keep for yourselves the virgins and the
girls.” That day, 24,000 of the
enemy tribe, soldiers, men, boys, and all the non-virgin women, were put to the
sword.

This
account was placed in the holy book.

The God who ordered the attack was Yahweh, the
Prophet was Moses, the tribe was the Midians, and we read about it in the book
of Numbers of the Hebrew Scriptures

Some centuries later within the holy realm, a heresy
arose. The heretics thought the
faithful had become too worldly and they sought a purer, more ascetic religion. They believed that the universe held two gods, not one. Their number grew quickly and their ranks were filled with passionate
adherents. The majority faithful,
however, tolerated the heretics, and together they developed a thriving
civilization.

At first there were attempts to persuade the heretics
to return to the ranks of the faithful. But when that proved fruitless, the
leader of the faithful, losing patience with the believers who tolerated the
heretics, directed armies to put down the heresy and wipe out the infidels. The order was executed.

The heretics were the Cathars. The faithful were the Roman Catholics. The place of the thriving civilization was Provence. The leader of the faithful was Pope Innocent III who called for a crusade
(later known as the Albigensian Crusade) to put down the heresy. As with all religious armies, there was also land and booty
and booty to be had. In the first
major engagement in July 1209, the town of Beziers refused the demand to hand
over the Cathars. When the town was
taken, the entire Roman Catholic population (between 10,000 and 20,000 persons),
along with the 200 Cathars they were protecting, were put to death. At this point, one of the crusader warriors worried aloud about the
possible killing of faithful Catholics along with the heretic Cathars. The
representative of the Pope accompanying the crusade is reported to have
responded, "Kill them all! God will recognize His own!"

Although there were horrendous
abuses in the Islamic empire, nowhere in the Qur’an is it allowed to kill
innocent civilians, nor the women and children of soldiers who resist Islam.
Again there are records of genocidal massacres committed by Muslim
armies, but in Islam itself it is forbidden to slay the innocent even if the
guilty cannot be separated from them.

I do not say this to show that
Islam’s record is better than Christendom’s. It isn’t. I do not imply
that Islam’s values, even if breached by its adherents, are superior to the
West’s. They are not. I am a Christian and believe that Islam is a flawed faith. Nor am I making an argument based on moral relativism. All those slaughters were morally reprehensible, even if justified in
scripture.

I am saying that the jihad is a
universal phenomenon whenever a religion ties its fortunes to the dynamics of
empire. Many of the Spanish
conquests were a jihad with results that have permanently changed the southern
hemisphere.

Jihad as a command to strive
against the enemy is in the Qur’an and in the later traditions ascribed the
Mohammad. But jihad as the
developed policy of expansion and the consequent establishment of subject status
of conquered populations was the only model available to Mohammad and his
successors. Both Byzantium and the
Persian empire of the Sassasinids used the sword the advance the faith and the
fortunes of the empire. That had
not been true of the Roman Empire and of the earlier Persian Empire (the
Parthians) who were very tolerant of disparate religions within the realm. But
their successors, the Byzantines and the Sassasinids, were not.

For example, The Byzantines
persecuted a popular sect called the Paulicians, who had been migrating into
Muslim territory for protection. In
850, the Byzantines went after the Paulicians before they could get away and
imperial soldiers killed 100,000 of them. To
those variant Christian sects within the empire that the Byzantines did not
eliminate, the Byzantines offered a kind of protected subservient status. It was this practice that the Umayyad Empire, 661 to 750, whose capital
was in the Byzantine city of Damascus, adopted to turn Christians and Jews into
what was later called Dhimmis within the Islamic Empire. When the Umayyads were in turn overthrown by the Abbasids, the Abbasid
empire move the capital to the Persian city of Baghdad, and adopted the imperial
structure of conquered Persia, not only with its bureaucracy and the powerful
version of emperor (Caliph), but they also adopted the tax structure of taxing
non-faithful a poll tax and a higher land tax than the faithful. This was a direct copy of what the Zoroastrian Persians had instituted.

So both the notion of jihad and
the structure of dhimmitude is not unique for Islam, but a copy of imperial
structures already in place.

Both Islam and West distinguish
between jus ad bellum and jus in bello. The
rules for going to war and the rules for conducting war. We must remember that until the 20th century, despite the just
war theories of Augustine and Grotius, nations had the legal right to engage in
aggressive war for nearly any reason, including a religious reason. Further, regarding jus in bello, the rules of engagement in war, in
ancient times, it was universally regarded as legitimate that soldiers defeated
in war could be killed, enslaved, released, or held for ransom. However, the Muslims were centuries ahead of the West in
other rules of war: No civilians could ever be targeted, surrender (on Islam’s
terms) had to be offered before hostilities, and if accepted, there could be no
reprisals. Proportionality had to
be used in the engagement of war.

The reason why jihad became such
perennial part of Islamic politics is simple: it succeeded. Through jihad
the Umayyad empire spread through much of the civilized world. Its successor empire, the Abbassid, which nominally ruled from 750 to
1238, let the jihad fall into desuetude, except in the east, when a Muslim
principality pushed into northwest India. It
was revived by the Ottomans who carried it deep into Eastern Europe. But the cost of a successful jihad for a religion is that its adherents
come to think of their faith not in spiritual terms but in territorial terms. It is significant that the Islamic empire reached the height of its
civilization during this period when jihad fell into relative abeyance.

It was providential therefore
for Christendom that both the Protestants and the Catholics failed in the mutual
jihad of the 30 years war, which ended with the treaty of Westphalia and broke
the connection between religion and empire. It was providential that Byzantine Empire did not succeed. For what would have happened if it had, if it won the battle with Islam
and then collapsed after World War I? Christians
everywhere would be asking, and Bernard Lewis would be writing books with the
title, “What went wrong?” It was providential for the Church that the Papal
States fell in 1870 liberating the church for its true spiritual and historical
mission. John Paul II’s power was
infinitely greater than Pius IX’s. It
was providential for Islam that the Turks were defeated before the gates of
Vienna, and that the Ottoman Empire did collapse in 1922.

Now, the radical enemies of us
and of moderate Islam seek to revive the territorial notion of Islam and marry
it to the Western institution of the sovereign state with its monopoly of force. For our sake and the sake of the spiritual future of a great
civilization, we cannot allow that to happen. For the same reason, we cannot allow Israel to fall and thereby validate
the territorial and intolerant element of Muslim tradition. It would be not only a national shame for us to allow that to happen, but
a shame on Western civilization itself, of which we are, for good or ill, its
prime protector.

But we have an ally. That ally
is Islam. In Islamic moral
philosophy, there is a distinction between the greater jihad and the lesser
jihad. Championed by Sufis and
other religious reformers opposed to the legalists, the greater jihad is defined
as a struggle against one’s self, against one’s spiritual inadequacy. As such it is similar to the Christian notion of metanoia, or inner
conversion. Moderate Muslims define
even the lesser (the military) jihad in restrictive terms. One may go to war only for defensive reasons and offensively only if
called to by the universally accepted caliph. Even there, moderate Muslims further argue, no offensive war is permitted
against a non-Muslim entity if a Muslim is free to practice his religion there. That fact the militaristic notion of jihad was more prominent in Islamic
history does not take away from the fact that most Muslims are moderate and are
willing to accept the spiritual notion. We
should validate that and call upon moderate Muslims to join the fight to save
the spiritual side of their religious tradition.

So what do we need to do? I believe that last night’s call for a new or renewed isolationism will
destroy us. If we retreat to our
North American fortress, even if we make frequent sallies out side of it, we
invite the inevitable siege, and that siege would succeed.

Let us look at containment as
the suggested option. To succeed, a
containment policy has to be long lasting, constant, and very expensive. It also must be aggressively active to succeed. Ronald Reagan’s succeeded in his containment policy because he was
willing to fight Communism in Latin America, in Grenada. He was willing to push the Pershing missiles up to the border of the
Warsaw Pact. It succeeded because
Reagan was not afraid to say to tyranny’s face, you have no moral, political
or historical right to exist. In
fact, Reagan succeeded in undoing the Communist empire because his policy was
not in fact containment at all. It
was regime change. Maggie Thatcher
knew that. If we had continued the
Jimmy Carter policy of true containment, we might have lost the cold war.

And what are the costs of a
containment policy that fails? We
wind up fighting World War II. Britain
tried a policy of containment too late, beginning in 1938. And its failure cost the world 50 million dead. Wouldn’t it have been better if the French had stopped Hitler in the
Rhineland in 1934 and seen him overthrown? If we could, would it have been better to have blown up the sealed train
that carried Lenin from Switzerland to Russia?

We are at the beginning of a new
totalitarian attempt to establish a geographic base. We are at the Rhineland in 1934. And if we fail or withdraw, if we leave a vacuum to the Islamic
Bolsheviks, we will face an enemy that has directed the trajectory of a
civilization and its billion plus adherents into a cohort that will be as
formidable as anything the West has ever faced.

A pluralist spiritual Islam is
possible, but not in an authoritarian state structure. If we can gain some kind of democratic self-government to take hold in
the Arabian heartland, we will have freed Muslims to pursue the spiritual
solaces of their tradition, and have protected our freedom as well.

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