Just War or Just Rhetoric?: A Critical Analysis of Al-Qaeda’s Arguments for Jus ad Bellum and Jus in Bello

Christopher Hurtado —  May 18, 2012 — Leave a comment
Just War or Just Rhetoric?: A Critical Analysis of Al-Qaeda’s Arguments for Jus ad Bellum and Jus in Bello | Christopher Hurtado

Introduction

Al-Qaeda has declared a global “jihad,” announcing grievances against the West as its justification. It has waged its “jihad” by attacking military targets, – the USS Cole in 2000 and the Pentagon in 2001 – noncombatant targets, – the World Trade Center in 1993 and 2001, a Philippine airlines flight in 1994, and two Germans in Libya in 1994 – and targets of arguably less distinct character – the US embassies in Nairobi and Dar es Salaam in 1998. The death toll so far includes fewer than 200 combatants and more than 3,500 non-combatants. Also, in waging its global “jihad,” al-Qaeda has made extensive and methodical use of terrorist tactics, including suicide bombings (Bellamy 146-47).

Can al-Qaeda’s global “jihad” be justified according to the Western just war tradition, or even the Islamic jihad tradition? This paper will present a critical analysis of al-Qaeda’s arguments for jus ad bellum and jus in bello in the context of the Western just war tradition and the Islamic jihad tradition. It will first describe the two traditions, then compare and contrast them. Next, I will outline common justifications for terrorism. Following, it will examine al-Qaeda’s arguments for jus ad bellum and jus in bello. Then, it will offer a critical analysis of those arguments. Finally, it will offer conclusions and recommendations based on this analysis.

The Western Just War Tradition

The Western just war tradition is often said to have originated with Christian apologist Augustine of Hippo’s The City of God, wherein Augustine attempts to reconcile the ethics of Christianity with what he perceived as an immoral world. The question of war posed a difficulty for Christians. How could war be justified among Christians if Christ was the Prince of Peace? Augustine argued against the two prevailing schools of thought of his day – pacifism and realism – that war was not always criminal and yet it was neither inevitable nor amoral. Augustine justified the use of force as long as it was for a moral cause – namely, the pursuit of justice (Goldstein).

Augustine’s solution presented another problem that preoccupied other Christian apologists such as Thomas Aquinas and Hugo Grotius – namely, the question of how to fight against injustice without being unjust oneself. The answer came in the form of a series of injunctions that form the core of just war theory: Responses should be proportional to attacks; the rights of prisoners of war should be protected; noncombatants should be granted immunity from war; people should have the right to defend themselves; and wars of religion, aggression, and conquest should not be recognized as legitimate (Goldstein).

The following are commonly accepted principles of jus ad bellum or justice of war in the Western just war tradition: Just war must be a last resort; it must be declared by a proper authority; it must possess right intention; it must have a reasonable chance of success; and its end must be proportional to the means it employs. It is important to note that the foregoing principles are not entirely intrincisist nor consequentialist, but instead appeal to both moral doctrines. Thus, Western just war theory does not provide a strict moral framework for war per se, but rather a series of principles that are open to broad interpretations (Moseley).

The rules of jus in bello or just conduct in war can be categorized into two broad principles: discrimination and proportionality. The principle of discrimination deals with the legitimacy of targets in war and excludes noncombatants, granting them immunity from war. The principle of proportionality deals with how much force is morally justified. This principle harks back to the jus ad bellum principle that states that the end must be proportional to the means. In addition to the foregoing two principles, a third principle – responsibility – deals with where responsibility lies in war and also harks back to jus ad bellum (Moseley).

The Islamic Jihad Tradition

Whereas the Western just war tradition has solidified around the foregoing principles, the meaning of jihad is still very much disputed among scholars of Islam. Interpretations of jihad range from the peaceful conception of an inner struggle against sin to the bellicose doctrine of “holy war” against “infidels” (Goldstein). The enduring argument among Muslims pertains to whether jihad is about war or peace. Arguably, both sides are right since in the Qur’an “jihad means more than war. It means striving, doing the right thing, going the extra mile, convincing, persuading and, if necessary, fighting” (qtd. in Goldstein).

The literal meaning of the Arabic word “jihad” is “striving,” as in striving in God’s way. The essential aspects of the concept of jihad were established in Muhammad’s lifetime (570-632) in sayings such as ‘The man who fights in the cause of the Lord may be compared to one who fasts and prays” (qtd. in Goldstein).

Following Muhammad’s death, his followers took it upon themselves to spread his message to others to bring them into submission to God and considered this undertaking as a jihad to, in the words of the Qur’an, “make God’s cause succeed” (qtd. in Kelsay 38).

The Islamic jihad tradition, and its notions of justice in war, grew out of the above-mentioned Islamic expansion, as did its concepts of martyrdom and sacrifice for God’s cause (Arguing the Just War 38). The debate over the meaning of jihad was (and still is) textual. Islamic scholars or ulema quickly emerged claiming the power to correctly interpret the relevant sources based on their religious knowledge. At the time, references to jihad in the Qur’an refer to converting nonbelievers by proselytization, not by military force: “Do not yield to the unbelievers and use the Koran for your [jihad] effort to carry through against them” (qtd. in Goldstein).

Once an Islamic state was established in Medina, in 622, jihad began to take on a more militant sense. It was during this time of Muslim military and political ascendency (750-1400) that the most authoritative interpretations of jihad were put into writing. They stressed the importance of Muslims remaining faithful to Islamic moral principles in battle, covering foundational principles of war and statecraft, as well as more obscure matters such as whether Muslims should carry copies of the Qur’an into enemy territory, and how they should care for their horses in battle (Goldstein).

Just War vis-à-vis Jihad

There are a various commonalities between the Western just war tradition and the Islamic jihad tradition in terms of moral strictures on military conduct, including just cause, right authority, and noncombatant immunity. “You shall not kill — for that is forbidden — except for a just cause,” reads the Qur’an (qtd. in Goldstein). There is also the notion of emergency ethics that can be adopted in extenuating circumstances, or what Churchill called “supreme emergency.” In these existential crises, actions that would otherwise be morally proscribed are permitted. The Islamic precept is: “Necessity overrides the forbidden” (qtd. in Goldstein).

According to the Islamic jihad tradition, conduct in war should adhere to Islamic values. Muslims are to fight with right intent: not for spoils or personal glory, but for the cause of and in the path of God. Their goal should be to promote peacemaking values. They should discriminate between the guilty and the innocent among their enemies and use the minimum amount of force necessary to win. Nevertheless, if it is important to fight, it is important to win. Therefore, if it is necessary to override the rules of war to win, then they are excused in doing so. The burden of guilt for any excessive casualties falls upon the leaders of the enemies who do not submit to truth (Islam and War 36).

The parallels between the two traditions are clear. The jus ad bellum criteria of just cause, right intent, proper authority, and a reasonable chance of success, and the jus in bello requirement of noncombatant immunity are present in both traditions. The jus ad bellum requirement of proportionality, on the other hand, is present in the jihad tradition only as concerns the relative strength of Muslim armies vis-à-vis their enemies, and the requirement that Muslims invite/declare their intentions does not quite equal “last resort.” Also, just cause seems to include religious elements that modern just war, at least, avoids (Islam and War 36).

In the Sunni tradition, religion is a legitimate cause of war – not in the sense of forcing people to convert to Islam, but in the sense of expanding Muslim territory. In the Shia tradition, and in some reformist Sunni traditions, expansionism is curtailed. Even Muslims who emphasize the justification of defensive wars only include the defense of Islam itself, or even political entities associated with it. In the Western just war tradition, at least since the 17th century, religion has been repudiated as a just cause for war. In contemporary just war theory, it is generally accepted that in matters of war, religion should be left out (Islam and War 40-41).

Also, in modern just war theory, jus in bello restraints tend to be the defining criteria of justice in war. It is generally accepted that, in today’s international political environment, it is too difficult to determine at the outset of war which side has just cause for war. It may be conceded that this may be determinable in the future, through historical, but in the present an air of ostensible moral equivalency is promoted, whereby the possibility that either side may be justified is presumed. Thus, the real test of justice becomes whether or not each side honors the principles of proportionality and noncombatant immunity (Islam and War 41).

At first glance, it appears that the Islamic tradition shares the above concerns. As previously mentioned, the Sunni tradition developed its jus in bello thinking around the adherence to Islamic values in the conduct of war, including notions corresponding to proportionality and noncombatant immunity. However, the degree to which the two traditions are similar bears closer examination at this point, especially with regards to issues of weapons of mass destruction. At issue is how the Islamic jihad tradition will deal with the potential or actual use of these modern weapons (Islam and War 41).

There are also “irregular” conflict-related issues. The modern incidence of “fundamentalist” and “militant” Islamic actors raises the question of what the Islamic tradition has to say about military action carried out by individual citizens and militia groups. The just war tradition has historically dealt harshly with such actors, viewing their actions as no more respectable than brigandage, but has softened its stance toward them over time. But, how can either tradition justify these actors in view of the jus ad bellum right authority requirement or jus in bello issues related to irregular tactics, including terrorism (Islam and War 41-42)?

Common Justifications for Terrorism

There are four common justifications for terrorism: consequentialism, collective responsibility, supreme emergency, and divine mandate. All four of these justifications sanction actions that are proscribed by positive laws in both the Western just war tradition and the Islamic jihad tradition. Therefore, in order to override the positive proscription on killing, the invocation of any one of these justifications would have to rely on natural law or realism to make a case for an exception. However, none of the four justifications do. Furthermore, all but divine mandate ignore the principles of jus ad bellum (Bellamy 141).

Consequentialism demands that actions be judged by their outcomes. Whatever actions are employed in the pursuit of worthwhile ends are justified if those ends are met, even if the actions undertaken are legally or morally proscribed. Two types of consequentialist justifications for terrorism can be distinguished: utilitarianism and “the anti-oppression exception.” The utilitarian justification gives preference to terrorism over conventional war on the grounds of cost savings. The “anti-oppression exception” claims that terrorism is justified when it is the only recourse of the weak against subjugation by the strong (Bellamy 141-42).

The collective responsibility justification invoked by terrorists, apologists, and even some scholars hold that noncombatants who receive material benefit from a tyrannical government lose their immunity, making them legitimate targets. The problem with this argument is that it provides a rationale for mass slaughter. The point of distinguishing between combatants and noncombatants is to avoid mass slaughter. Collective responsibility also undermines the terrorist claim to fight for human rights by making the human rights of those who have not enlisted in any armed forces contingent upon their relationship to what terrorists perceive as a tyrannical state (Bellamy 142-43).

Some argue that terrorism against oppressive governments leads to more just governance. The problem with this claim is that there is little empirical evidence to support it. Another problem with collective responsibility is that of consistency. If terrorists can hold communities they perceive as benefiting materially from governments oppressive to them collectively responsible for the oppression against them, then victims of terrorism should also be able to hold the constituent communities of terrorists collectively responsible for the actions of the terrorists and use this to justify their oppression of them (Bellamy 143).

The doctrine of supreme emergency, which holds that there are circumstances so dire that they justify the use of measures otherwise proscribed by natural and positive law, is a variation on the “anti-oppression exception.” Under this doctrine, noncombatant immunity is not nullified, but it is temporarily suspended. This argument exhibits many of the same problems as consequentialism and collective responsibility. It weakens noncombatant immunity leaving it susceptible to abuse, wrongly assumes that there sometimes are no alternatives to killing noncombatants, and falsely supposes that a strategy of targeting noncombatants will result in a successful defense (Bellamy 143-44).

Supreme emergency arguments for killing noncombatants claim military necessity (Just and Unjust Wars (203-4). However, these arguments for the emergency ethics of supreme emergency are not justified unless those making them face a genocidal threat. Only in the event of such and imminent threat of extinction could a case be made for terrorism. Even then, the terrorists making this argument must have some chance of success to be justified. Considering that terrorists have not made use of terrorism to confront any such imminent threat of genocide but have instead used terrorism to further a political agenda, they are not justified in so doing (Arguing About War 54).

The last of the justifications is divine mandate. Divine mandate is the claim made by terrorists that God has authorized them to commit acts of terrorism. This type of justification has been endorsed by figures in most major religions in recent years. Of course, this claim is impossible to disprove and can be made by just about anyone to justify just about anything. Therefore, while religious believers may admit the possibility that God has authorized terrorists to commit acts of terrorism, it is incumbent upon those claiming divine mandate to provide evidence of it. Since there is no precedent for such evidence, the likelihood of its appearance is slim at best (Bellamy 144).

Each of the above four terrorist justifications for directly killing noncombatants fails in important ways. Of particular import is the threat they present to the rules of war due to their inherent tendency toward unconditional and political preferences. Additionally, all four justifications are inconsistent. Terrorists who use consequentialist, collective responsibility, supreme emergency and divine mandate arguments to justify their actions, do not allow others to use the same arguments against them. This suggests a biased and therefore untenable view of justice in war (Bellamy 45). Let us now examine al-Qaeda’s arguments for its “jihad,” including arguments for the use of terrorist tactics.

Al-Qaeda’s Arguments for its “Jihad”

The claim made by militants that Muslims are in a state of emergency due to their corrupt and illegitimate governments, a Jewish state on Muslim lands, and Western cultural hegemony has brought the meaning of jihad under dispute among Muslims. Al-Qaeda’s 1998 “Declaration on Armed Struggle Against Jews and Crusaders” signed by bin Laden and al-Zawahiri lists a series of grievances against the West, arguing that it is the duty of every Muslim to “comply with God’s order” to rise up, take up arms, and fight the United States and the “satanically inspired supporters allying with them” in the face of such a state of emergency (qtd. in Goldstein).

Al-Qaeda has two main goals. Its first goal is to depose all governments in Muslim lands that do not rule according to its fundamentalist interpretation of Islam and replace them with a unified Islamic caliphate. Its second goal is to end what bin Laden sees as Western influences that have corrupted Muslim governments and subordinated Muslims to the West: “America and its allies are massacring us in Palestine, Chechnya, Kashmir and Iraq. The Muslims have a right to attack America in reprisal . . . for over half a century, Muslims in Palestine have been slaughtered and assaulted and robbed of their honor and of their property” (qtd. in Bellamy 146).

Al-Qaeda’s justification of violence against American noncombatants in the waging of its “jihad” against America is based on bin Laden’s oft-repeated claim of collective responsibility on the part of the American people for the Israeli occupation of Palestine, as well as for the suffering of Iraqis and other Muslims. He argues that the United States government manufactures and provides to the Israelis the arms used to massacre Palestinians and that collective responsibility for the suffering of Muslims falls on all Americans due to their role in electing the United States government (Bellamy147).

Al-Qaeda also invokes the anti-oppression exception variation on the consequentialist justification of terrorism. First, bin Laden makes a Muslim jurist-like legal distinction between “commendable” and “reprehensible” terrorism. Then, he claims that al-Qaeda’s use of terrorism falls in the “commendable” category because “it is directed at the tyrants, the traitors who commit acts of treason against their own countries and their own faith. . . . Terrorizing those and punishing them are necessary measures to straighten things and make them right” (qtd. in Bellamy 147).

Finally, al-Qaeda also makes use of the divine mandate justification of terrorism. Bin Laden was quoted by an ABC reporter as saying that “Allah is the one who created us and blessed us with this religion, and orders [us] to carry out our holy struggle – Jihad – to raise the word of Allah above all the words of unbelievers” (qtd. in Bellamy 147). Of course, bin Laden does not (and, of course, cannot) offer any evidence of the divine mandate he claims. Let us now turn to a critical analysis to the jus ad bellum and jus in bello arguments al-Qaeda offers to justify its global “jihad.”

Analysis of Al-Qaeda’s Arguments

Al-Qaeda’s arguments for jus ad bellum satisfy none of the principles of just war: neither just cause, nor right intent, nor proportionality of ends. Al-Qaeda’s first goal to establish a unified Islamic caliphate can only be conceived as just cause if the interested parties wanted it and it were better than the status quo. In fact, only a small minority of Muslims favors this arrangement and the experience of Taliban rule in Afghanistan offers overwhelming evidence that it would not be an improvement over the status quo. Also, neither the Western just war tradition nor the Islamic tradition allows forced conversions or the enforcement of any particular brand of fundamentalism (Bellamy 146).

Al-Qaeda’s second goal could be considered a just cause for war if it could show that the US is responsible for the unjust killing of Muslims in Iraq and Palestine. However, even if a successful case for armed resistance could be made, the “right intention” and “legitimate authority” requirements would still have to be met. But al-Qaeda’s first goal clearly shows that it has no intention of liberating Iraq and Palestine, but rather its intention is subject them to Taliban-like rule whether the people want it or not. Al-Qaeda also fails to meet the right authority requirement. Thus, al-Qaeda does not have a credible case for jus ad bellum (Bellamy 146-7).

Given that al-Qaeda fails to meet the jus ad bellum requirements of just cause, right intent, and proportionality of ends, there is little if any reason to evaluate it in terms of its jus in bello performance. Nevertheless, it is a worthwhile academic exercise, considering that al-Qaeda uses all four of the above-mentioned common justifications of terrorism: consequentialism, collective responsibility, supreme emergency, and divine mandate in its attempt to justify its terrorist actions against the West and against other Muslims (Bellamy 147).

Aside from its role in the Iraqi insurgency, of the 14 major terrorist attacks perpetrated by al-Qaeda since the early 1990s, only five have been directed at military targets. Six (counting the September 11 attacks only once) were either directly aimed at noncombatants or (in the case of the attack on the Pentagon) used noncombatants as a means to an end. Al-Qaeda’s attacks on the US embassies in Nairobi and Dar es Salaam and a plot to attack a third one are of questionable status. Even more striking is the number of combatant (fewer than 200) vs. noncombatant (more than 3,500) casualties inflicted by al-Qaeda. Clearly, al-Qaeda fails the jus in bello test (Bellamy 147).

Conclusions and Recommendations

In the early centuries of Islam, radical interpretations of jihad were moderated by the authoritative interpretations of sharia (Islamic law) given by recognized ulema (Islamic scholars). In today’s postcolonial Muslim world, in the midst of a crisis of religious and political identity, a cadre of fundamentalists made up of the likes of bin Laden and al-Zawahiri are claiming the mantle of authority and rejecting centuries of precedents set by elite Muslim scholars. Because the interpretations of this new cadre draw from deep within Islamic history, it is difficult to dismiss them as having “hijacked Islam” or being outside the Islamic tradition (Goldstein).

The analogous nature of the relationship between the Western just war tradition and the Islamic jihad tradition, both of which share beliefs in common regarding the application of moral criteria to decisions appertaining to war and peace, make these traditions a point of departure for a new dialogue between the West and the Muslim world. Indeed, this dialogue has already begun. It began after 9/11 with breast beating on the part of American academics and later focused on the manner in which America should execute its response to al-Qaeda, resulting in the document “What We’re fighting For,” which was signed by 60 academics and public intellectuals (Goldstein).

The document was intended as a declaration of support for the war on terror and an appeal for it to be fought according to the principles of the Western just war tradition. It was translated into Arabic and published in newspapers and magazines throughout the Arab world. This resulted in many responses expressing a desire for an exchange based on principles of justice in war. Even those who harshly criticized the document concluded with a call for further dialogue. In an early forum for dialogue, Arabs contended against their Western hosts that just war is just another doctrine of holy war, that they were trying to justify the crusades, and that they were no better than the jihadists (Goldstein).

While I agree that it is important that the West enter into and conduct war in accordance with just war principles, including jus ad bellum and jus in bello restraints, and that the West should therefore closely examine its actions in light of these principles, I do not believe that the West alone should engage in such practices. It seems to me that many in the West are all to eager to critically examine the actions the West takes and to condemn many of them, without being willing at the same time to measure the actions of Muslims by the same token. As for the Muslims, they are also altogether too eager to criticize the actions taken by the West, often without reflecting upon their own actions.

While there are altogether too many Islamist apologists in the West, especially in academia, there are also many disingenuous actors who are unwilling to honestly examine their own actions in light of the Western just war tradition, especially in government. Nevertheless, there are in the Islamic world at least as many disingenuous Muslim actors, whether dissimulating Islamists or sympathetic but non-Islamist Muslims who evade the knowledge they possess of correct principles of the Islamic jihad tradition for the sake of a misguided sense of religious solidarity or the many Muslims who genuinely ignore the correct principles of the Islamic jihad tradition.

It is incumbent upon the West not only to critically examine its own actions in light of its own ethical tradition, but also to proudly recognize the proper actions it has taken in accordance with that tradition and to insist that the Muslim world critically examine its actions in light of its own ethical tradition and address those that fall short. It also behooves the West to uphold its own as well as the Muslim world’s ethical standard by demanding of itself and of the Muslim world strict adherence to their respective ethical standard regardless of the actions of the other side. Without adherence to their own standard, neither side has any moral authority to criticize the other.

Works Cited

Bellamy, Alex J. Just Wars: From Cicero to Iraq. Malden, MA: Polity Press, 2006.
Goldstein, Evan R. “How Just is Islam’s Just War Tradition.” The Chronicle of Higher Education 54.32 (2008): B7-B10.
Kelsay, John. Arguing the Just War in Islam. Cambridge, MA: Harvard University Press,
2009.
—. Islam and War: A Study in Comparative Ethics. Louisville, KY: Westminster/John
Knox Press, 1993.
Moseley, Alexander. “Just War Theory.” The Internet Encyclopedia of Philosophy. 2009.
Web. 18 May 2012. http://www.iep.utm.edu/justwar/.
Walzer, Michael. Arguing About War. New Haven: Yale University Press, 2006.
—. Just and Unjust Wars. New York: Basic Books, 1977.

Christopher Hurtado

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Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children’s book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.

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