Just War theory and the Challenges of Asymmetrical Warfare Introduction



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Just War theory and the Challenges of Asymmetrical Warfare

1.     Introduction

Just War theory is as old as our Western European culture, shaping the strategies and ways of warfare for millennia. Its origins can be traced back to the Peloponnesian War, when unwritten rules forbade invading armies to burn olive trees as a method of warfare in the knowledge that the recovery of these slow-growing trees would mainly affect civilians.1

It was Cicero who first articulated Just War theory in his writings2 which were further developed by St Augustine, St Thomas Aquinas and the legal school of Salamanca. And it is the same theory that became part of secular international law, first introduced by Hugo Grotius.

The long history of Just War theory and its constant application to international affairs throughout the ages cannot prevent it from facing severe challenges in modern times which might even cause the theory to be irrelevant if substantial efforts are not made to adapt Just War Theory to modern threats and developments in contemporary politics.

However, the emergence of new terrorist organisations and tactics pose serious questions about whether a theory which is mainly based on warfare between states will have any future in times of asymmetric conflicts. All the main characteristics of Just War theory like proportionality of force and the discrimination expected of combatants strongly depend on clearly organised warring parties both being of the same kind, namely states. (Note: given the many interpretations of terrorism this paper opts for the Concise Oxford English Dictionary (2006): ‘the unofficial or unauthorized use of violence and intimidation in the pursuit of political aims’.)

2.     Islamist terrorism – new wine in old wineskin

The famous image taken from the Gospels of the wineskin and the new wine might at first seem inappropriate for a new development in international affairs like Islamist terrorism, knowing that the “new wine” in the Gospels is considered to be something positive and a great improvement on previous times. However, apart from the positive and life-changing quality of the new wine, a totally different significance can be attached to this image: the revolutionary character of the new wine that is going to destroy the old system which is supposed to contain it.

It is very much the same with Islamist terrorism (while putting aside the question of improvement as it is described in the Gospels). I shall argue that Islamist terrorism is not primarily based on economic circumstances like poverty or social immobility but rather on a fundamental ideological choice of the individual terrorist.

This is not to say that everyone who is part of a terrorist network does so because of ideological reasons alone, since joining such movements can indeed result from better economic prospects and an improvement of the personal social status. However, the decision to commit a suicide attack, with its absolute self-sacrifice, will ultimately be based on a firm belief that what one is doing is right.

Political philosopher professor Jean Bethke Elshtain correctly says: “the key lies in the word ’exploit’. Terrorists exploit certain conditions which are part of the matrix out of which terrorism grows. It does not follow that terrorism is caused by these conditions.”3 Professor of political theory, Tilman Mayer, also points out that terrorism generally aims to create certain “legends” as a means of self-justification, using “the cultural affront related to the humiliation of the Arab world”4 as “a quasi-justification of terror”5.

However, Mayer does not consider this to be a valid justification, stating that “such cultural affronts did exist in many different countries during the process of imperialism and colonialism, without such a strategy [like the strategy of Islamist terrorism] being used in these countries at the end of twentieth century.”6

This is why Islamist terrorism should not be considered a liberation movement7, but rather an ideological movement that does everything to spread its ideology of a politicised Islam whatever the motives, whether political, economic or religious, to form the basis for this political engagement.

To understand how Islamist terrorism works - and indeed religiously-motivated terrorism in general - it is useful to consider some ideas expressed by the famous German professor of law and political theorist Carl Schmitt, who delineated the two types of irregular fighters: the partisan and the revolutionary.



2.1     Carl Schmitt and his Theorie des Partisanen (Theory of the Partisan)

Although Carl Schmitt’s Theorie des Partisanen dates back to 1962 and was strongly influenced by the original Spanish partisans it still provides two very useful distinctions: firstly, between the regular soldier and the irregular partisan; and secondly between the classical partisan, who Schmitt describes as a resistance fighter8, and the degenerated partisan which he calls a “revolutionary fighter”9.

Schmitt had four criteria for the partisan:

(1): their irregular nature. They lack a controlling superior, nor wear fixed or visible military emblems, and carry their guns secretly and disregard the rules of war such as the Hague Conventions.1 In accordance with Schmitt’s historical analysis 1808 marks the starting-point of irregular activity, following the clash between the regular French troops under Napoleon’s command and the irregular Spanish partisans.

(2): their intense political commitment. This distinguishes the partisan from any domestic criminal. This is very important as from a legal point of view both partisans and domestic criminals act as civilians committing crimes against the legal authority. While a domestic criminal seeks personal benefits when stealing or murdering, the partisan may do the same but for political reasons, and in most cases is ready to sacrifice their life for the political ideas they stand for as opposed to personal enrichment.

To show the difference, Schmitt contrasts the buccaneer with the partisan, arguing that the former fights in an “animus furendi” (intent to steal)11, whereas the partisan fights “on a political front and it is the political character of his action which emphasises the original sense of the expression partisan, deriving from the word party.”12 It is this political commitment that enables the partisan to fully engage.

(3): the partisan is flexible, not being part of any organised military structure. They are able to attack and withdraw at maximum speed in compared to regular army formations.13

(4): of great importance to Schmitt’s concept of the partisan, which is borrowed from the political writing of Jover Zamora, is the telluric character of the partisan. Schmitt argues that partisans act in a defensive way, aiming to defend their home country or to liberate it from alien influences. Therefore partisans “ locate their identity with a particular place14, being a type of combatant that will last as long as anti-colonial wars occur on our planet”15.

Soon the differences between Schmitt’s partisan and today’s Islamist terrorist become very evident: the latter is not defending their homeland or religious community (umma), although they might try to legitimize their “political engagement” by creating a legitimising legend, but instead they usually go onto the offensive and mobilize fighters and weapons against third countries which they consider to be threatening their religion and/or cultural identity. All the attacks like on the World Trade Centre in 1993 and 2001 were carried out on foreign soil and therefore do not fulfill what Schmitt considers to be telluric.

Another fact that underlines the offensive structure of Islamist terror movements are their organisational structure. Manfred Klink, a First Director of the German Bundeskriminalamt (the German CID), considered al-Qaida to have three strata: the first located in their homeland, the second being the Mudjaheddin who wait to be called to commit serious terrorist attacks, and the third being the Mudjaheddin responsible for the financing of the terrorist networks through non-political criminal activity and located abroad or operating across the globe.16

Some terrorist organizations in the past have emphasised Schmitt’s concept by the inclusion of liberation motives in their names: the Basque country based ETA translates as liberty for the Basque homeland; the Algerian FLN translates as the National Liberation Front; the Lehi translates as liberation fighters for Israel, better-known as ‘The Stern Gang’; and LTTE as the Liberation Tigers of Tamil Eelam.

However, recent terrorist organizations focus on ideological expressions: Al-Qaida (Foundation), Hezbollah (Party of God), while the Red Army Faction (RAF) in Germany and the Red Brigades in Italy used the colour red as an ideological connection to communism.

Carl Schmitt makes an important observation by pointing out the closeness of the terrorist’s strategy to the sleeper agent: “such a mobilized17 partisan loses his telluric character and becomes a transportable and replaceable instrument of a global political machine, switching him on and off as matters arise.”18

Apart from a new outline of the degenerated partisan, in his theory of the partisan Schmitt focuses on the consequences that terrorism has on the traditional legal system and its classification of regular warfare. In Schmitt’s view the law is “the unity of order and orientation”19.Therefore, any partisan lacking telluric character is also affected in his legal status which is why Schmitt defines terrorist activity as the creation of “a new, more complex space of activity, because the partisan does not fight on an open battlefield or on the same level of front-defined warfare.”2

However, this extension of the space of activity is not necessarily linked to being a partisan but rather a more general phenomenon in the history of war. Schmitt refers to the use of U-boats in World War One as an example of spontaneously extended spaces in the conduct of war. This extension of war to under the sea led Schmitt to believe that a complete destruction of maritime law had occurred, and resulted in the condemnation of submarine warfare by Germany’s surprised opponents as “immoral warfare”.

Now that submarine warfare is accepted questions arise as to whether this condemnation of submarine warfare in World War One was based on moral issues or caused by the surprise and evident helplessness to cope with a new innovation in warfare. In Schmitt’s view it was the element of surprise that caused the condemnation: “the gentlemen on the surface of the sea at that time tried to disparage this way of fighting as irregular, even criminal and pirate-like. Today, in the era of submarines armed with Polaris missiles, everybody is aware of the fact that both Napoleon’s indignation about the Spanish guerrilla and England’s indignation about the German U-boat were of the same kind, making their judgments about the pace of change from a sense of embarrassment.”21

Schmitt is very clear that a mere extension of space does not per se affect the legitimacy of new military tactics, which should be remembered when a moral classification of terrorism is called for and be a warning against committing the same fallacy as hundred years ago.

The mere novelty of military tactics does not immediately lead to their becoming illegal, which would mean that any development in the art of war would become impossible. We must therefore ask whether there are criteria Schmitt would have used to declare modern terrorism illegitimate and evil from the moral stand-point: there are a good number of reasons to believe Schmitt would have disapproved of terrorism.

As we have already seen, Schmitt distinguishes between the classic partisan and revolutionaries through the telluric concept, but there should be no doubt that both categories of fighters are irregular and therefore not to be accepted as a combatant in the regular sense. It is only from a failure of the state to determine its enemy - which in Schmitt’s concept is the fundamental requirement for a totality of people to be called “state” or “political”22 – that the partisan arises and takes this decision on behalf of the state.

Nevertheless, in Schmitt’s thinking the partisan acts legitimately, whereas the revolutionary or terrorist does not as they “become a manipulated instrument of global revolutionary aggressiveness. They are just sent to be slaughtered and deceived in everything they took up the fight for, deceived in everything their telluric character, their partisan irregularity, was rooted in.”23

The parallel to modern Islamist terrorism becomes clearly evident, thus giving a huge significance to Schmitt’s political writings even today.24 From where does Schmitt decide the partisan derives their legitimacy?

Schmitt distinguishes within the irregular status of both the partisan and terrorist two different ways of fighting which lead to two different concepts of enmity: absolute and relative. The partisan, although fighting irregularly by planning ambushes and killing soldiers in brutal and devious ways, accepts their enemy as the enemy but does not offend the enemy’s honour or dignity since they kill for a political reason, namely the liberation of their homeland.

The enemy’s right to exist and their dignity as a human being are not denied for a moment. This is why Schmitt considers even partisan warfare to be a containment of war, by which “European mankind succeeded in something very rare: giving up the criminalisation of the enemy in war, causing a relativisation of enmity, the denial of absolute enmity. It is something extremely rare, something incredibly human indeed, to persuade men to abstain from any discrimination and defamation of the enemy.”25 This is why partisans can be seen as heroes, “defending native soil against alien conquerors”26.

As an example for this attitude towards the enemy Schmitt quotes Joan of Arc; when asked whether she agrees with the statement that God hated the English, she answered: “Whether God loves or hates the English, I cannot say; the only thing I do know is that they have to be driven out of France.”27

The statement shows very clearly that it was the military and political facts that mattered to Joan of Arc and not the defamation of her enemies; this is something completely disregarded by terrorist propaganda, aiming to lead fighters to an indiscriminate extermination of the enemy, classifying them as unworthy in every regard, without any right of further existence.

This is why Carl Schmitt considers the Just War theory as problematic, presupposing that a just war automatically contains a moral defamation of the enemy, and even more specifically a declaration of the enemy’s injustice28, leading to a disparagement that Schmitt wants to avoid when introducing the concept of “legitimate war”.29

As an example Schmitt draws a comparison with Leninism; Lenin “as a professional revolutionary of global civil war went further and made the real enemy an absolute one. Clausewitz has spoken about the absolute enemy, but had still assumed the regularity of an existing state order. He could not imagine the state to be an instrument of a party and that there could ever be a party being in command of a state. By making a party absolute, the partisan as well was made bearer of an absolute enmity.”3

Schmitt should be praised for the far-sightedness of his general outlines since they preview modern thinking about terrorism, especially with their religious - or often pseudo-religious - foundations: “destruction then becomes very abstract and absolute. It is not directed anymore against an enemy but does only serve as an alleged objective implementation of supreme values, for which everything is done. It is the denial of real enmity that paves the way for the destructiveness of absolute enmity.”31

The development and the availability of weapons of mass destruction, says Schmitt, dramatically speeds up this tendency to absolute enmity since not only does the effectiveness of terrorism disproportionately increase but also the concept of absolute enmity is presupposed as weapons of mass destruction.

These are considered to be weaponry that kill indiscriminately and absolutely and whose use therefore requires a previous negation of the enemy’s dignity in general: “those men, using such weaponry against other men, are confronted with the necessity to exterminate these men, their victims and objects, morally, too. They have to declare the opposing side as a whole to be criminal and inhuman, a total Unwert (worthlessness). The logic of dignity and the denying of dignity develop its totally destructive character and requires ever new, ever more intense discrimination, criminalisation and denial of dignity, leading to the extermination of every worthless life.”32

With Carl Schmitt’s explanations in mind there will follow an investigation into the distinction between partisans and revolutionaries/partisans that can be applied to new terrorist movements as well. There will also be a focus on religious terrorism and a description of its peculiarities and a focus on the differences between modern Western societies and such movements.

2.2     Religious terrorism and Western societies

The emergence of new terrorist movements, especially Islamist ones, go along with a development that would never have been anticipated by Western societies and therefore still causes political paralysis: a new disapproval of the secular state under the rule of law which is considered by Western societies to be a symbol of political and social achievement.

The idea of a secular constitutional state has been implemented in many societies which was influenced by the Enlightenment and the concept of the separation of powers, and has become a stabilising factor in many countries. For background the separation of powers has been expressed by Locke and Montesquieu, and even more importantly has been the fundamental distinction between law and truth, as the key element of the secular constitutional state.

This fundamental distinction, however, raises objections in many countries, mainly those influenced by Islam. This is understandable as the cultural and political development of Western and Islam countries vary in many different aspects, most prominently in the lack in Islamic countries of an era equivalent to the Enlightenment. In many of these countries the distinction between law and truth has not been implemented, with a number of states organised as religious republics which consider the state as an instrument for mainly religious purposes.

Otto Depenheuer, the German professor of constitutional law, summarises this development: “the struggle for liberty and democracy, for a constitutional state and human rights across the world, does not only cause incomprehension and a refusal of those to be convinced in non-western societies, a refusal that could be cured by intense explanation, generous development or good-governance and state-building concepts.

However these pagans of constitutionalism and individual liberty start a culturally self-confident counter-attack, having a firm religious credo.”33 This certainly causes problems as both understandings of the state claim to be correct and tend to expand their jurisdiction, the first because of its absolute religious foundation, and the other because of human rights such as personal liberty, by claiming the universal application independent of religion, culture or geographical location of a state.34

This difference is of an absolute character and occasionally causes the emergence of religiously inspired terrorist movements. “They [the terrorists] do not care about relativist rationality, compared to firm religious belief; not about the idea of human rights, compared to fear of God; not about equality, compared to divine law; not about democracy and the constitutional state, compared to religious truth.”35

Depenheuer has been criticised in Germany for his pointed criticism of Muslim-influenced societies and their attitude to Western democracies and political systems. Be that as it may, there can be no doubt about Depenheuer’s contribution to highlight the fundamental and qualitative difference between the two different mentalities of political thinking.

It is telling that religiously motivated terrorists do separate themselves from societies they live in by fabricating an artificial gap. “While secular terrorists consider violence to be a means to change a society or correct a system they believe to be in principle good and worth being preserved, religiously motivated terrorists do not consider themselves to be a part of the system worth being preserved, but ‘outsiders’ [...].”36

It is this exclusion from society which makes possible an absolute terrorism and an absolute enmity as outlined by Carl Schmitt; this dualism is absolute and cannot be cured by economic, social or cultural improvement of living standards. This dualism is perfectly summarised in a video claiming the responsibility for terrorist attacks in Madrid 2004: “you love life, we love death.” Regarding this attitude the seventeenth century German philosopher, Samuel von Pufendorf, once commented: “He, who does not fear death, does not fear anything. He, who is able to scorn death, can take any liberty he wants towards every authority.”37



    1. Can religion be a substitute for the telluric?

It is important to bear in mind Carl Schmitt’s concept of the telluric-autochthonous which distinguishes a partisan from a terrorist and provides a strong and unique motivation to fight for their homeland against occupying forces, even if they are far outnumbered.

Modern religiously influenced terrorists, however, lack this telluric moment as they are part of an international network, often operating not in the terrorist’s homeland but across the world. These operations not only involve deployment on foreign soil as part of a sleeping cell strategy but also contain the use of globalised communications, overriding former obstacles like time and space. Although there may be different locations where terrorist cells act, they become part of one single, informationally homogenous space. As a consequence of the globalisation of terrorism the telluric motivation does not exist anymore and requires a replacement to maintain propaganda and the motivation of the singular terrorist.

This substitute has to be of absolute value, as terrorism aims to fight an absolute war and pursues a policy of absolute enmity – for which an exceptional motivation is required as terrorist attacks often include the sacrifice of one’s own life. Besides patriotic resistance as a telluric component and the protection of one’s family (with the first becoming obsolete and the latter depending too much on individual circumstances and is strongly linked to the former) there are not many other motivations for extreme action.

Religion as a basic and natural constituent of human life and culture is one of these exceptional motivations and can easily be exploited for political reasons if it fails to refrain from the political sphere. Some religions are therefore more prone to political instrumentalisation while others are less, depending on their doctrine.

The following fatwa is one example of the exploitation of religion as a substitute for the telluric and was published on February 23, 1998, titled “Declaration of the Global Islamist Front”: “The atrocities and sins committed by the Americans are a clear declaration of war against God, his prophet and the Muslims. And ulema38 throughout Islamic history have taught that every single Muslim is obliged by Islam, if the enemy devastates Islamic countries . . . . to kill Americans and their allies, both civilians and soldiers, is an individual duty of all Muslims when able to do so and wherever possible, in order to free the al-Aqsa-Mosque and the Holy Mosque (Mekka) from their occupation and to drive out their armies of all countries of the Islam, so defeated and unable to threaten Muslims. This is in accordance to the words of the Almighty God: ‘and fight mercilessly against the heathen as they fight against you ’.”39

Religiously motivated terrorism is not a new phenomenon given that a strong Assassin movement fought against the Crusaders centuries ago. These movements, however, concentrated on defined areas and were the result of a rather consistent symbiosis of religious and telluric motives, whereas more recent terrorist groups entirely lack the telluric component, a development which began with the emergence of the Palestinian Liberation Organisation (PLO) as an organisation with international links such as with the Red Army Faction (RAF) in Germany.





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