David Forte Cleveland

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 20^th 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.