Just War, ISIS & The War On Terror
The Challenges Of The Current Strategy To Defeat ISIS
By Professor Jovana Davidovic (The University of Iowa)
This article is part of The Critique’s exclusive The Great War Series Part I: Gaza, Isis and The Ukraine.
The great number and variety of answers to this question is a direct result of the fact that the ISIS threat is in many ways unique in our times. The aims as well as the tools ISIS uses are significantly different from those used by other groups that ISIS is usually compared with, like Al-Qaeda.
For example, unlike many other terrorist groups, ISIS’s purported aims are an establishment of a caliphate as a step in a path towards the End of Days. This in turn means that, at least for now, and as evidenced by their actions, ISIS and its fighters have very little interest in direct attacks on Western countries. Instead ISIS is focused on killing “apostate” Muslims in the region and controlling a land within which the caliph can rule.
According to the interpretation of the Koran which is driving ISIS, once a true caliphate is established (for which among other things one needs to control and rule a territory) the set of rules that ought to govern the behavior of all true Muslims is different from the set of rules that ought to govern their behavior in the absence of a caliphate. So for example, according to this interpretation, once a caliphate is established, moving to it becomes a religious duty of true Muslims. This is also why there has been an increase in crucifixions, slavery and other medieval practices.
For ISIS this is the right way to establish and enforce the rule of law, and any variation from Sharia so understood constitutes apostasy and thus is punishable by death. The atrocities committed against other Muslim minorities are thus explained rather differently (by what Sharia law requires in a caliphate) than those committed against foreigners, which are justified by the moral and legal obligation to terrorize, so as to shorten conflict.
The fact that the ultimate aims of ISIS are incompatible with their co-existence with any other Muslims in the caliphate or the freedom of any pagans, together with the fact that the brutality is required by both municipal laws and their rules of war, significantly complicates the question of how best to understand ISIS and therefore how best to resolve this situation and eventually achieve sustainable peace.
The debate about whether or not to intervene has been largely focused, and rightly so, on what the consequences of such an intervention would be. A large ground contingent of U.S. or any Western military will, according to many commentators, be a propaganda victory for ISIS who has consistently promised its supporters a massive fight with the anti-Christ (popularly played by the U.S. and its allies).
One possible worry regarding a ground intervention by the West would be that it would, to an unknown extent, mobilize further forces and motivate current ISIS fighters who would think of it as a prophesy coming true. Commentators who think this propaganda effect would be great reasonably worry about the increased numbers and commitment from ISIS fighters and other potential supporters and allies and the casualties that would result from a possibly prolonged ground engagement.
The claim on the other side, also reasonable, is that there is a moral obligation to aid the hundreds of thousands of people who have been enslaved, displaced, terrorized and killed [Read Parry on the puzzles of Humanitarian Intervention]. Given that ISIS seems to, if not sincerely, then consistently, enforce the caliphate laws, we have good reasons to think that lashings for smoking, stoning for adultery, executions for home-schooling, and mass executions of non-Sunni Muslims will continue on the same scale.
Whether trying to slowly weaken ISIS by limiting its expansion (and thus winning the propaganda war) will work seems just as unpredictable as whether and to what extent the propaganda victory for ISIS in case of an offensive by western powers would prolong the war and thus increase the number of casualties. But it is not just this question about the likely consequences of an intervention that gives rise to problems regarding how to deal with ISIS: it is also not completely clear what would count as success with respect to such an intervention.
We have some good reasons to think that whatever success is in this instance it will likely involve the death of many if not most of the ISIS fighters. Firstly, we have good reasons to think that winning by dispersing ISIS fighters would primarily lead to further civil wars and the growth of other terrorist organizations which would have yet another instance of western meddling to add to their recruiting tools.
Secondly, and probably more importantly we have good reasons to think that any military intervention would kill most ISIS fighters because of the belief that most of them seem to hold regarding their role in the prophesy and the martyrdom death that many ISIS fighters seem to joyously expect.
So then it seems like an intervention that would simply disperse ISIS fighters would lead only to a shift in the type of conflict and only a possible slowdown in atrocities, while an intervention that would lead to the death of most ISIS fighters would both lead to a possibly significant propaganda victory by ISIS as well as to worries about the proportionality of that action and intentions behind it.
These ‘practical problems’ about consequences of any possible intervention can be at least partially addressed by developing a new international institution for capturing and punishing terrorists. So as to make sense of why I think such an institution is needed and useful for solving the ‘practical problem,’ I next turn to legal and conceptual problems with terrorism and our responses to it.
Traditionally, acts are considered terrorist when they intentionally kill or injure or threaten to kill or injure innocent civilians, with the goal of achieving some political aim via causing fear and thus influencing policy makers or the general public. The very concept of terrorism is, at least for some scholars, uniquely normatively charged: to engage in terrorism is to do something wrong. In ordinary parlance too, it seems like, to call someone a terrorist is to assert that they are doing something morally wrong. This is clearly not always the case with war- we often speak of just and unjust wars, implying that war in itself is neither. This is also not the case with combatants fighting a war.
A war might be unjust if it fails at least one of the commonly accepted conditions for starting a just war, namely conditions of just cause, right intentions, last resort, proportionality or others. But even in a war which lacks a just cause and is therefore unjust, we commonly argue that combatants still do nothing wrong in fighting in such a war, as long as they act in accord with some basic rules for fighting in war (commonly referred to as jus in bello rules) such as only targeting those who are legitimate targets, and only using tactics that are proportionate to the military advantage which is being sought.
According to international law, any individual in an armed conflict who obeys these basic rules, is part of a hierarchical structure, is wearing a uniform, and is openly bearing arms is considered a combatant. Being a combatant of course comes with both liabilities and privileges. To be a combatant and wear a uniform or openly bear arms is to designate oneself as a legitimate target for the enemy. On the other hand being a combatant (whether just or not) is also what entitles one to Prisoner Of War status if captured, meaning one cannot be prosecuted simply for fighting in a war (even if it is unjust), one has to be treated humanely, one’s side needs to be alerted to one’s capture and one has to be released (unless charged with war crimes) after war has ended.
In addition the status of a combatant in a war entitles one to kill enemy combatants and not be held to account. As long as the combatant is acting in accord with jus in bello rules, such a combatant is morally and legally permitted to engage enemy combatants. So on the traditional view and legally speaking, unjust combatants act permissibly when they kill just combatants.
Terrorists by default never do, whether or not they think that the people they are killing are innocents or not (clearly sometimes terrorists see themselves as killing people who are not fully innocent, for example in virtue of the fact that they promote the capitalist establishment and American imperialism or some such thing).
There are good reasons why we treat even unjust combatants as if they did nothing wrong simply in virtue of fighting in a war. The reason is simple- having rules that treat unjust and just combatants differently would not be useful- after all, all or almost all combatants see themselves as just.
So even though we might think that it is wrong for an unjust combatant to kill a just combatant, when we ask ourselves what sorts of rules should govern warfare, given facts about human knowledge and the way wars are fought, we go with rules that minimize harm – to civilians at least.
After all if unjust combatants thought they’d be held accountable simply for fighting in war, they’d have little reason not to kill civilians as well as combatants on the opposing side and would have very little incentive to surrender knowing they’d be held accountable for fighting in war.
But are ISIS fighters combatants? There are good reasons to think not. ISIS clearly often uses terrorist tactics and targets civilians either to illicit fear or for other reasons. Any soldier in a regular military which generally obeys jus in bello rules would probably be appalled at the very thought of granting ISIS fighters combatant status.
This would imply that they could (were they to be obeying jus in bello rules) legitimately target and kill enemy combatants like Iraqi military and others attempting to protect the civilian population. But furthermore, it would mean that ISIS fighters that are captured ought to be released at the end of war, or at least released if there are no jus in bello charges against them. It also would mean no charges could be brought against them for simply belonging to ISIS and fighting in this armed conflict.
What then is the alternative? Unfortunately, as philosopher Jeff McMahan points out “at present the only types of institutions we have that are capable of addressing the threat of terrorism are military institutions, whose activities are governed by the war conventions and the laws of war, and institutions for law enforcement, which are governed by the norms of police action.”
The alternative then is to treat ISIS as simple criminals. But this too seems not to fit or give us the tools for what seems like an appropriate response to this threat. After all, we are not entitled to kill criminals without a trial for any other purpose than self-defense. In war on the other hand, the combatants are authorized to kill as many legitimate targets (enemy combatants) as it is necessary to achieve a military advantage.
In other words, if ISIS fighters are not combatants, it is not exactly clear whether we would be (legally) justified in killing any number of them to achieve some military purpose. Now this probably seems outrageous and rightly so, and this is probably what led some Bush-era lawyers to propose the status of an ‘unlawful’ combatant, who could be killed in a conflict, and would otherwise be treated as a legitimate target, but would not be entitled to POW status nor to many of the procedural rights ordinary criminals are entitled to.
There is an abundance of literature regarding the various problems with this ‘unlawful’ combatant “solution” to the conceptual and legal gap in understanding terrorism and in understanding our options for responding to it and I think there are genuine worries about this “solution.” Nonetheless the status problem for terrorists seems genuine.
“If ISIS fighters are not combatants, it is not exactly clear whether we would be (legally) justified in killing any number of them to achieve some military purpose. This probably seems outrageous and rightly so”
Now one might wonder why we should care- anyway you cut it, ISIS is engaging in morally and legally impermissible acts, and the only questions are: should we intervene, given those ‘practical’ concerns discussed above? But the reason that classification of ISIS fighters as terrorist or combatant matters is because the protections and permissions that we grant combatants and terrorists are significantly different.
Similarly, and relatedly, the way we go and ought to go about fighting in war and against terrorism differs. Also, which acts we hold ISIS responsible for affects the question whether an intervention and by whom is proportionate. If we take the traditional just war approach and if we consider ISIS to be combatants that are some of the time using terrorist tactics, then when they engage the Iraqi military or possibly U.S. forces; they act permissibly. If and when they intentionally kill civilians they either act as war criminals or as terrorists.
Probably most importantly, this will affect how we treat ISIS and their supporters after war. Should we think of them as primarily terrorists, and if so, utilize the Bush-era rules that allow for indeterminate imprisonment without trials? Or should we treat them as combatants that have violated the Geneva conventions and try some of them as war criminals?
This worry about situations like the one the world is facing with ISIS has led some scholars to point to the fact that we need to acknowledge that threats like ISIS and their fighters are neither best understood as criminal threats nor as war and that thus our mechanisms for dealing with those types of threats are inappropriate for dealing with terrorism.
We ought to consider developing a new international mechanism that would provide rules for engagement with terrorist organizations as well as rules of punishment after the fact. Again, the rules for engagement of enemy combatants ignore whether a combatant has a just cause or lacks a just cause: they ignore the questions whether the combatant is a Nazi or a French partisan in WWII. Combatants on either side that meet the basic jus in bello conditions can legitimately engage in fighting and killing the enemy and will not be charged with any crimes.
Now clearly we do not think that a combatant who is fighting on the side of Nazis furthering their cause is morally equal with a fighter fighting for the Allies aiming at the exact opposite. Nonetheless it seems like we have good reasons to think that we should extend permission to fight combatants as long as civilians are spared. This is because we acknowledge that the majority of combatants fight in conditions of ignorance with respect to the objective justice of their aim, thinking their side is the just side.
People will then baulk at suggesting that we extend the same rights to terrorists by suggesting that they can be combatants. After all they by definition fail one of the conditions that makes one a legitimate combatant- observing the jus in bello conditions.
Similar worries are extended to post-conflict and imprisonment. It seems like our aims in giving special treatment to POWs are a direct result of our overall aim of reconciliation with the enemy. That seems highly unlikely with terrorists, and thus it seems like membership in a terrorist group committing atrocities might at times be sufficient to serve as grounds for prosecuting them.
All of this suggests that this third institutional framework ought to be able to prosecute and imprison terrorist perpetrators simply for membership in a terrorist organization and for the aims of their organization and not simply for or only when they violate jus in bello conditions.In other words, unlike unjust combatants, ISIS members should be prosecuted for the cause for which they are fighting.
In addition, while they should not be granted the privileges of being a combatant it is nonetheless clear that they should be seen as legitimate targets in some cases which are different from when a regular non-combatant, even a ordinary criminal non-combatant, is liable to be killed. This is because of the type and magnitude of threat we know a terrorist poses.
Now this doesn’t mean that any and all ISIS fighters are legitimate targets in war, but instead that we ought to prefer capture to killing if the same military advantage can be achieved without a great shift in danger to the interveners.
This further means that even ISIS fighters that are not currently posing a threat can be considered legitimate targets (contrary to, for example, an ordinary criminal whom we may only kill if our or other’s lives are in imminent danger).
While it might superficially seem like this proposal further complicates the question of a possible intervention, I believe that it in fact provides a helpful answer to the ‘practical problem’ of intervention discussed earlier.
This is because it makes a justified intervention more likely, in virtue of the fact that it doesn’t require of us that we either aim at killing most ISIS fighters or otherwise prolong the war in the region by simply dispersing them. It allows for a possibility of a justified intervention, which aims at and has somemechanisms (given that this would be a fledgling institutional framework) for capturing, prosecuting and imprisoning ISIS fighters.
We also have good reasons to think that, if successful, this approach, would not be a propaganda victory for ISIS and would thus undermine the long term mobilizing power that ISIS or the idea of ISIS might hold over possible other extremist factions.
There seems to be little time to act, and there are good reasons, it appears, to spend that little time developing an institutional mechanism to deal with threats like ISIS. The benefits of such a mechanism would be far more reaching than just making a justified intervention against ISIS possible.
Footnote & References
 This is of course not to say that no sympathizers of ISIS are committed to attacking and terrorizing Western countries. That being said there are good reasons to question whether those who have not joined ISIS in their current territories can consistently be considered members of ISIS.
 Graeme Wood, “What ISIS really wants,” The Atlantic, March 2015, available at http://www.theatlantic.com/features/archive/2015/02/what-isis-really-wants/384980/
 Wood, “What ISIS really wants.”
 It might be a propaganda victory in part because ISIS and its leaders seem to believe that all of this is a step towards a final battle against the Anti-Christ, a battle that will not happen until ISIS is almost defeated and is left with only a few hundred or thousand soldiers. The worry about proportionality and intention arises because it is not immediately obvious that intervening with the intention of killing all members of the opposing force (since that would in this scenario not simply be the tool for victory but the actual aim of the intervention) could even count as having right intentions.
 There are at least some scholars who might disagree with this characterization of terrorism, and might instead want to argue that we should develop a normatively neutral definition of terrorism and only then ask whether it can be justified. Scholars who for example argue that terrorism might be justified include Jonathan Bennett, The Act Itself, Oxford: Claredon Press, 1995 and Uwe Steinhoff, On the Ethics of War and Terrorism, Oxford: Oxford University Press, 2007. I have a number of reasons to think we should accept the normatively charged definition of terrorism at least in its paradigmatic use. Primarily this is because it seems to fit the typical use of the term more closely than the normatively neutral option. A number of scholars discuss this issue further, including: Igor Primoratz, “What is Terrorism,” Journal of Applied Philosophy, vol. 2, 1990, and Terrorism: A Philosophical Investigation, Cambridge: Polity Press, 2013; C.A.J. Coady, “The Morality of Terrorism,” Philosophy, vol. 60, 1985 and “Terrorism and Innocence,” Journal of Ethics, vol. 8, 2004 and Jeff McMahan, “War, Terrorism and the “War on Terror,” in War on Terror, ed. Chris Miller, Manchester: Manchester University Press, 2009. I am grateful to Uwe Steinhoff for helping me get clear on this issue.
 Unless the penalties were rather insignificant, which would be highly unlikely given that imposing penalties with the intention of deterring unjust wars would be the most obvious reason for instituting differing rules for fighting in war for just and unjust combatants.
 McMahan, “War, Terrorism and “War on Terror,” 171.
 McMahan, “War, Terrorism and “War on Terror”; as well as for example the legal scholars who had provided the memos for the Bush-era treatment of “unlawful” combatants and on torture. For more see for example the “A Guide to the Memos on Torture’ in the New York Times, available at http://www.nytimes.com/ref/international/24MEMO-GUIDE.html?_r=0 Of course there are genuine worries regarding what exactly would be a propaganda victory and what consequences a propaganda victory would have. But I argue that the primary reasons to have this alternative institutional mechanism is not simply to win the propaganda war, but to offer genuine and consistent tools for dealing with terrorist threats in general and ISIS in particular. This institutional mechanism would also allow us to genuinely aim at capturing terrorists instead of being committed to aiming at killing the vast majority if not all of them.