When French Prime Minister François Hollande described the Islamic State’s attacks on Paris as an “act of war,” he set the stage for an immediate retaliation. In their understandable fear and anger, like many Americans immediately after 9/11, the French have hardly paused to ask whether it is right to escalate.
Indeed, war seems to be the obvious answer to the indiscriminate violence wrought by the Islamic State. Under international law and in the just war tradition, there is a right of self-defense against armed attack.
But the classical just war tradition does not recognize terrorist organizations as legitimate combatants, because they tend to lack the authority to govern and therefore lack the authority to make war. The individual members of these organizations are not soldiers acting in self-defense of a state or a people, but criminals because they target noncombatants.
Terrorism — violence directed without distinction at civilians — can be used by both criminals and governments. War is distinguished from “mere” violent organized crime by the fact that the organization using violence has political legitimacy, has political objectives and follows the laws of war: most importantly, discriminating between combatants and non-combatants.
If terrorism is violent crime, it demands a criminological analysis and a police and judicial response: one of intelligence, prevention, arrest and prosecution, not war. The attacks by the militants who are affiliated with the Islamic State are terrorist murders, yes, but are they large-scale crimes or acts of war?
Making that determination is difficult because the militant Islamists’ behavior does not fit neatly into one category or the other: It uses the methods of violent organized crime and has political and cultural aims.
When the Islamic State attacks civilians, it acts like a group of organized criminals running a protection racket, ruthlessly eliminating its opponents — who it defines as anyone who believes and practices a different version of religion — looting and wreaking mayhem. Neither the Islamic State, which lacks wide political legitimacy — as demonstrated by its need to rule its “state” through brute force and fear — nor the lone-wolf militants who act in the Islamic State’s name have the legitimacy to make war. They are criminals. Indeed, the assaults on Western civilians and the Muslims who disagree with their brand of religion could be understood as “merely” organized hate crimes.
But the Islamic State also promotes its aspirations for an ever larger territorial state, one whose political, cultural and religious intolerance would be an affront to Western values. Do its attacks on Paris, Istanbul, the Russian airliner over Egypt and elsewhere in recent months recently amount to those of a state at war? They certainly punctuate an escalation in political aggressiveness against the countries whose governments have attacked the Islamic State in Syria. The Islamic State is both a criminal organization and, when it acts in Iraq and Syria, an aspiring state that attempts to make war. When the Islamic State can demonstrate that it has the voluntary allegiance of people in its state, it may be considered a politically legitimate authority.
The nature of the U.S. and European responses to the radical Islamist terrorist attacks so far — a mix of hardening important and vulnerable assets by increasing patrols or putting up barriers to attack, intelligence-gathering, law enforcement, financial asset tracking, asset seizure, and, increasingly under the Obama administration, targeted killing of suspected terrorists in Pakistan, Yemen and Somalia — illustrates the range of different counterterrorism options that do not involve a large-scale military response.
But there is no easy answer and it possible for those in the just war tradition to disagree. In the case of 9/11, some theorists argued that an all-out war against al-Qaeda terrorists was justified. Jean Bethke Elshtain’s arguments to that effect were said to have influenced George W. Bush in his decision to embark upon the “war on terror” and the Iraq war.
Others urged a response that distinguishes between a “conflict with terrorists” and war. “It is better to forfeit the rhetorical bounce that comes from invoking war and define more precisely what we can and should do,” just war theorist J. Bryan Hehir argued. “Containing and capturing terrorists is by definition a function of police and legal networks. War is an indiscriminate tool for this highly discriminating task.” A counterterror war may not be justified or wise, especially if other methods of preventing terrorist attacks might be as or more effective.
The just war tradition invites us to argue about war before it might be undertaken, and then to interrogate ourselves on our conduct when war is taking place. The fact that it takes some time to work through the moral and practical questions raised by the just war tradition is a virtue; we not only gain an intellectual perspective, but perhaps also the chance to calm down while we consider options and their consequences.
However we decide, it is worth debating the response before beginning or further escalating a war of uncertain duration and consequences. It may be the case that even though the Islamic State acts like both a state military and a large-scale criminal organization, it should be treated mostly as a criminal organization since the consequences of making war are not worth the potential gain. Emphasizing the methods of law enforcement may be the more prudent course. If not, as President Obama says, “there will be a whole lot of unintended consequences that ultimately make us less secure.”
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