Ethics in Counter-Terrorism [1 ed.] 9789004357815, 9789004357808

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Ethics in Counter-Terrorism

International Studies on Military Ethics The series is edited under the auspices of the International Society for Military Ethics in Europe (Euroisme)

Editor-in-Chief Ted van Baarda (The Netherlands) Editorial Board Jovan Babić (University of Belgrade, Serbia) Thomas R. Elßner (Catholic Military Chaplaincy, Zentrum Innere Führung; Bundeswehr, Germany) Juha Mäkinen (National Defence University, Finland) Per Bauhn (Linnœs University, Sweden) Henri Hude (Research Centre of the Military Academy of Saint Cyr Coëtqidan, France) Bruno Coppieters (Free University Brussels, Belgium) Daniel Thürer (University of Zürich, Switzerland) Patrick Mileham (Council of Military Education Commitees of United Kingdom Universities)

volume 4

The titles published in this series are listed at brill.com/isme

Ethics in Counter-Terrorism Edited by

Magdalena Badde-Revue Marie-des-Neiges Ruffo de Calabre

leiden | boston

Cover illustration: PARIS – Soldiers patrol the Eiffel Tower after three days of terror in and around Paris. Copyright: ANP PIERRE CROM. Library of Congress Cataloging-in-Publication Data Names: Badde-Revue, Magdalena, 1951- editor. | Ruffo de Bonneval de la Fare des Comtes de Sinopoli de Calabre, Marie-des-Neiges, 1987- editor. Title: Ethics in counter-terrorism / edited by Magdalena Badde-Revue, Marie-des-Neiges Ruffo de Calabre. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: International studies on military ethics ; volume 4 | Includes bibliographical references and index. Identifiers: lccn 2018010853 (print) | lccn 2018012089 (ebook) | isbn 9789004357815 (E-book) | isbn 9789004357808 (hardback : alk. paper) Subjects: lcsh: Terrorism--Prevention--Moral and ethical aspects--Europe. Classification: lcc hv6433.e85 (ebook) | lcc hv6433.e85 e835 2018 (print) | ddc 174/.93633257--dc23 lc record available at https://lccn.loc.gov/2018010853

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2214-7926 isbn 978-90-04-35780-8 (hardback) isbn 978-90-04-35781-5 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Notes on Contributors vii 1

Counter-Terrorism: The Border Not to Cross 1 Benoit Royal

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Counterterrorism and the Problem of Moral Exploitation 5 Camilla Serck-Hanssen and Andreas Brekke Carlsson

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What Terrorism is and is Not 25 Boris Kashnikov

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Divided by Ethical Choices? New or Old Debates between “mainstream” Terrorism Scholars and Their Critics 51 Asta Maskaliūnaitė

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Should Collateral Damage be Considered Morally Acceptable when Using Armed Drones? 74 Michaël Dewyn

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Terrorism and Democratic Governance – What are We Willing to Pay? 100 Kristina Tonn

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Understanding Core Values: Observations on the British Military 126 Benjamin Grove-White

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Terror War: Complicity and Responsibility 154 Arseniy Kumankov

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Is There Anything New under the Sun? From Holy War to Modern Terror: On the Importance of Religious History for Understanding Terrorism 171 Markus Thurau

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Methods for Preventing Terrorist Attacks under Question 197 Olivier Risnes

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The Hate Trail. Counter-Terrorism of the 21st Century and Its Challenges 207 Desiree Verweij

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Eye in the Sky: The Paradoxes of War Outside War, Imminent Threat, and the Virtuous Warrior in Military Drone Use 225 Trish Glazebrook

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Targeted Killing of Terrorists in War and Peace: An Analysis Based on the Jus Ad Bellum/ Jus in Bello (In)dependence Thesis 251 Michaël Dewyn

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21st Century Global Crises. Sovereignties, Identities, Terrorists 269 Patrick Mileham Index 303

Notes on Contributors Magdalena Badde-Revue PhD. (2010), Université Paris-Sorbonne iii, is associate lecturer and researcher in the crec Saint-Cyr Coëtquidan, France, and board member of EuroISME. Her research focusses on military history, especially in the Cold War and PostCold-War, and ethical issues. Marie-des-Neiges Ruffo de Calabre PhD. (2016), Université Paris-Sorbonne, is Lecturer in Philosophy at the University of Namur, Belgium. Member of the Belgian Intelligence Studies Center, she works on the ethical issues related to security, defense and new technologies, including ai. Andreas Brekke Carlsson PhD. (2015), University of Oslo, is a researcher at ConceptLab, University of Oslo, and the secretary of the Norwegian Council for Defence Ethics. His publications include “Blameworthiness as Deserved Guilt”, Journal of Ethics (2017). Michaël Dewyn Captain, served as a military logistics officer in Belgium. He is a Doctoral Researcher at the Royal Military Academy, Ghent University and Free University of Brussels. He works especially on the Morality of Armed Drones and Targeted Killings. Trish Glazebrook PhD. (1994), University of Toronto, is Professor of Philosophy at Washington State University. She has published Heidegger’s Philosophy of Science (Fordham, 2000), and articles on Heidegger, science and technology, ecofeminism, ancient philosophy, and climate change in Ghana. Benjamin Grove-White PhD. Candidate, University of Bristol, is an associate teacher in political theory and is currently in the process of completing his PhD, which is a sociologically grounded account of ethics in the British Army. Boris Kashnikov is a professor at National Research University “Higher School of Economics” and a retired colonel. One of his articles was published in the third volume of

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EuroISME’s book series on military ethics “Military Ethics and Leadership” in 2017. Arseniy Kumankov Works on moral and political philosophy as well as the history of philosophy, specialising on different aspects of just war theory and critique of violence. He is a lecturer at National Research University Higher School of Economics in Moscow (Russia) and direct philosophy of War Research Group. Asta Maskaliūnaitė PhD. (2007), is Director of Department of Political and Strategic Studies at the Baltic Defence College. Her research focuses on issues of terrorism generally, and particularly on the attempts to build theory in the field of terrorism studies. Patrick Mileham served on operations in South Arabia and Northern Ireland. He has been Associate Fellow of the Royal Institute of International Affairs Chatham House, Royal United Services Institute and the uk Defence Academy. He is currently Vice-Chairman of the Council of Military Education Committee of uk universities and a member of the EuroISME Editorial Board and Directing Board. Olivier Risnes After serving as a pastor in France, he became a military chaplain in the French Army Forces. He has acquired an operational experience. Currently serving as National Chaplain of the Protestant Chaplaincy of the Gendarmerie (dggn). Author of several papers and book chapters on ethics and education. Benoit Royal Brigadier General (ret) Royal is a research fellow closely associated with professional ethics at the Research Centre, Saint-Cyr Coëtquidan School. He has accumulated significant command experience during his career in international positions. Since June 2012, he has been the President of the International Military Ethics Society in Europe (euro isme). Camilla Serk-Hanssen PhD. (1990), University of California, San Diego is Professor at ConceptLab, the University of Oslo and Head of the Norwegian Council for Defence Ethics. Her publications are within ethics of war, conceptual engineering and Kant scholarship including “Fighting Achilles”.

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Markus Thurau PhD. (2011), Free University Berlin, is a lecturer at that university and a Catholic theologian at the Bundeswehr Centre for Military History and Social Sciences in Potsdam. His current research interests focus on Religion, Violence, and Nonviolence. Kristina Tonn m.a. (1980), Project manager for an Online-Didactic-Portal and research officer at the Centre of Ethical Education of Armed Forces (zebis), Hamburg. Desiree Verweij PhD. (1993), is professor in philosophy and ethics at the Faculty of Military Sciences of the Netherlands Defense Academy. She holds a chair at the Centre for International Conflict Analysis and Management (cicam) of the Radboud University Nijmegen.

Chapter 1

Counter-Terrorism: The Border Not to Cross Benoit Royal Is the war against terrorism any different from other wars? To answer this question I am compelled to ask three other questions: should we fight terrorism with the same methods that we fight other wars? Should we abide by the same rules? Should we apply the same ethics? If we confine ourselves to strategy and tactics alone, the fight against terrorism in the twenty-first century has very little in common with the classic state on state conflict that Europe endured in the previous century. In this regard, the methods used to defeat the modern terrorist would be, by necessity, very different. But if we look more closely, some countries, like France and United Kingdom, have in the past confronted similar adversaries to the one we face today. For the United Kingdom, it was the clash in Northern Ireland, and for France, it was the war in Algeria between 1954 and 1962 and specifically in 1957. To ­develop this last point, in January 1957 alone, the Algerian capital suffered no less than one hundred and twelve attacks! It is worth reflecting on the consequences: the police force was impotent, emotion was at its peak and full ­police powers had been given to the 10th Parachute Division. The commander, ­General Massu, had been ordered to restore calm, no matter what. Effectively, Algiers became a testing ground for new and more repressive tactics. The French army developed and adopted a concept called “cons-revolutionary”, which was subsequently studied and even copied by other Nations. By resorting to these harsh methods, the Battle of Algiers was won in a few months. The opponent, however, was able to draw attention to the increasingly violent methods employed in Algiers and public opinion turned against the army and demanded that the military authorities be held to account. The opposition conducted intense diplomatic and information operations, which included misinformation. By targeting French and international opinion, Algeria questioned the relevance of the war and undermined consensus in mainland France. The French no longer recognised their army and the soldiers, for their part, felt that their legitimacy had been questioned by their own countrymen. The support of the population, as any military expert knows, is a key component of victory in counter-insurgency warfare, like “weakness to strength”. Therefore, despite French victory in the battle of Algiers, the opposition won the political

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war that ultimately delivered the peace agreement signed in Evian. Moreover, the loss of Algeria triggered a deep internal crisis of morale and tarnished the French army’s public standing. The French military establishment has carried this heavy burden for a long time, but especially the Army, whose own soldiers were psychologically scarred by the methods employed in Algiers. Learning lessons from the past, the French military revised its modus ­operandi. New ethical values, proportionality and respect for human life and ­dignity – ­including that of the opponent, regardless of whatever methods he uses – now underpin joint action. This approach is a real challenge for our soldiers because they are regularly confronted by levels of violence and cruelty, which could persuade them that their enemy has lost all sense of human decency. One might then think that the risk of using dubious methods to fight terrorism seems low today. However, we must always consider that every action will be subjected to public opinion, that new and harsh reality. Since the frequency of terrorist attacks in Europe has increased, a number of European and nonEuropean countries have been prepared to advocate that terrorism deserves special treatment. Indeed, a recent report by the us Senate raised ethical questions on the methods used by the cia and us military; the use of torture, the employment of Special Forces and indiscriminate use of armed drones. Christian Malis – the author of “War and Strategy in the 21st Century” – made the stark observation: with the emergence of powerful non-state adversaries, a new type of war is emerging, one that is totally unregulated and extremely barbaric. This is, in essence, a contest between two types of warfare: one with rules and one without. Combat with rules is the privilege of sovereign states. It limits war and confines violence but while these agreed boundaries are real, they are also elastic. The emergence of jus in bello in Europe during the thirteenth century created a type of regulated warfare which is part of our heritage. It is true that, at that time, Europe was culturally homogeneous and combatants usually shared similar values, except those in the margins. The rules of warfare were born with the realisation that violence needed limits and combatants had more to gain by adopting a strategic objective that delivered a political end. However, for some, this view remains subject to debate. The problem today is that our asymmetric opponent does not share the same value system. There is a real temptation to forget our history, to “demonise” the enemy and resort back to the horrors and violence of the wars of yesteryear. We must not forget, however, that a nation without a corporate memory is forever condemned to always commit the same mistakes. There is, therefore, a real risk of a decline in ethical values as we fight the so called “War on Terror”, especially if the principal actors, political and military,

Counter-Terrorism: The Border Not to Cross

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forget their history and focus on short-term victories, regardless of their cost. This is precisely what we have witnessed in the last decade. Given the boundaries we have discussed and the massive use of conventional military force in Iraq and Afghanistan, the modus operandi has gradually shifted in f­avour of more stealthy actions. This change arguably started with the increased use of armed drones in Iraq, Yemen and Pakistan, to conduct surgical assassinations. This stealthy approach was arguably a deliberate attempt to circumnavigate international norms (like the law of armed conflict and humanitarian law) without facing legal repercussions. Beyond drones, the increasing use of ­Special and Proxy Forces combined with cyber-attacks, as seen in Ukraine, ­suggest that ­aggressors can now disregard the principal of jus in bello and act with impunity. Therefore, faced with a new non-state enemy, that circumvents and ­violates the rules of war, some Nations may be tempted to respond in kind: using the shadows and margins to overcome the limitations of “regulated” warfare. However, this slide towards unchecked levels of brutality is a victory for the ­opponent who aims to push civilized Nations into abandoning their own values. The clash is, therefore, principally between two different concepts of ­human society. On the one hand, a socio-political system based on principles and values – hence ethical – that upholds international norms or risks losing legitimacy. On the other hand, we face an opponent for whom the ends justify the means. The latter will attempt to make his ethical foe use similar levels of violence as him, thus, ultimately undermining his own cause. Therefore, despite the monstrous methods used by an ideologically unrestrained enemy, we must guard against waging indiscriminate and overly ­violent warfare. A response without rules would be counterproductive and we must seek a more ambitious outcome rather than pure revenge. Our objective is to ultimately win the war and not just the current battle. However, this is above all a war of ideologies – a clash of values. Or, as the French General Pierre Billotte said of Algeria in 1957: “In modern ideological warfare, victory should go to the superior ideology. One of the keys to victory, is to afford the greatest respect for moral and human values, as this goes right to the heart of the men you are fighting.” But the values we defend, that are fundamental to human survival were identified by the philosophers of our forefathers. These values are based on love and mutual respect and not on hatred of the other. They carry within them the seeds of victory against a terrorist ideology that is fabricated and deeply exclusive. So yes employ force, determined force, but a considered and controlled force. However, in this battle of ideologies, military force alone will not be

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enough. Whatever the nature of the crisis, but especially when confronting terrorism, a global approach is essential. To win consensus among actors in civilised society such as the legal system, the educational system, our political leaders and associations of all kinds (such as our Euro-isme association), a strategy is required that reasserts those values that are shared by all. This is the only way to convince people that our values are not debatable, that they are legitimate and to persuade the population to support those engaged in this battle of ideas. We must never forget the lessons of the past. Avoid a purely emotional response and a short-term vision. Never forget, finally, to use only legitimate and proportional force, because the pursuit of immediate success at the expense of moral reflection irrevocably leads to political failure. The end state is definitely not the betrayal of those fundamental and universal values upon which our society is founded.

Chapter 2

Counterterrorism and the Problem of Moral Exploitation Camilla Serck-Hanssen and Andreas Brekke Carlsson There are many ways to attempt to fight terror and there are many ways of responding to the question how to best do it. The current situation in Syria and the atrocities committed by a number of participants in that conflict have made such questions sadly topical. Our concern in this paper is to engage with the moral dimensions of counterterrorism measures. More specifically our main aim is to discuss one moral problem, namely moral exploitation, in relation to one kind of strategy in the war against isis. The strategy is that of using one’s own military resources to engage not in fighting the terrorists directly but in training local groups to fight them. Several countries, including Norway, have already adopted this strategy against isis.1 The strategy of training local groups to fight isis is not only in fact chosen by several countries, it appears also to get at least indirect moral support by influential voices in the debate on just war. Jeff McMahan argues that against isis, western led airstrikes alone will not do (because of the problem of ­discrimination), “yet to send Western soldiers into combat against the militants would be perceived by Islamic State members and potential recruits as confirmation of prophesies in which they believe – fantasies involving the ­reappearance of Crusaders in their Holy Land. For this reason and others, it is important that the forces that purge the cities and towns should consist predominantly of soldiers indigenous to the region: Shiites, Kurds and, one hopes, Sunnis who detest the barbarism of their co-religionists in the Islamic State”.2 Presumably, McMahan also holds that it is a moral duty of the West to help such indigenous forces carry out their fight, i.e. to train, equip and possibly also to arm them, if such measures would increase the likelihood of success without unacceptably increasing the risk of harm to non-liable individuals. 1 This paper was written in the late summer of 2016. The facts we mention concerning the situation in Syria reflect the time of writing. 2 Jeff McMahan, “Syria is a modern-day holocaust. We Must act” Washington Post, 30 November 2015,  .

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McMahan’s position stands in stark contrast to Michael Walzer’s (2015), who argues that the war against isis is bound to be unjust, simply because it cannot succeed. In this paper, we will not discuss the problem of the possibility of success, and only briefly mention the issue of what would be the most efficient means of fighting is, given their particular ideological outlook. Instead, we want to focus on a different and more principled question: Does the strategy of training and equipping local groups involve supporting countries in moral exploitation? This is an important question which thus far has not been subject to much debate. This paper is an attempt to fill that lacuna. Exploitation involves taking unfair advantage of another’s vulnerability. When this vulnerability is of a moral kind, we can call the phenomenon moral exploitation. We will try to show that the problem of moral exploitation is relevant for the strategy of training local groups to fight isis. First, we will discuss the question of whether countries training and equipping local groups instead of providing troops on the ground are exploiting these groups’ moral obligation to help their own civilian population. Second, we will discuss whether the practice of conditionally supporting rebels with training and equipment provided that they only engage in fighting is, when they would prefer to also fight Assad, also can be seen as an instance of moral exploitation. We hope that our discussion can help to assess the moral difficulties of the present conflict. Our main goal for this paper, however, is to illuminate the problem of moral exploitation and how it relates to the practice of training and equipping local groups. This practice has been used before and will surely be used again in the fight against terrorism. It is therefore important to get a clear grip on the morally problematic features of this practice, independently of the current situation. In order to identify the structural features of the phenomenon of moral exploitation we will spend a fair amount of time discussing simpler cases of moral exploitation. Nevertheless, to avoid that our discussion of possible moral exploitation and coercion of local forces appears uninteresting from a more pragmatic point of view,3 we will begin by explaining why we believe that there can be a morally just use of military force against terrorists abroad (assuming, that is, that there is a reasonable chance of success). We will then return to the special case of fighting isis by training local groups and the problems of moral exploitation and coercion.

3 After all, if such kinds of wars are bound to be unjust anyway, why should one bother to discuss moral problems that arise for specific strategies such as that of the military training of local groups?

Counterterrorism and the Problem of Moral Exploitation



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Why There Can be a Just Use of International Military Force against Terrorism

Whether terrorism abroad can be fought in a morally justified way is closely connected to a set of other questions that need to be unpacked and answered at least in a provisional manner. The first question concerns the very concept of terrorism. In order to discuss how terrorism can be fought in a morally legitimate way, one arguably needs to know which events and actions fall under this concept. One reasonable definition of “terrorism” is presented by McMahan4 (2009): Acts of terrorism are intentional efforts to kill or seriously harm innocent people as a means of affecting other members of a group with which the immediate victims are identified. Usually the aim is to terrorize and intimidate the other members as a means of achieving some political or broadly ideological goal. According to this view then, terrorism is violence against civilians with the purpose of spreading fear in the general population in order to coerce them into acceding to some political or social stance that the perpetrator has. Thus the perpetrator, in effect, makes a conditional threat to the indirect victims: you will not feel safe unless you meet our political demands. This differentiates terrorism from other atrocities. What makes terrorism so morally shocking is not just the bloodshed involved but also the way that the direct victims are used to manipulate the indirect victims. The direct victims are used as tools to spread fear among the indirect victims, who are in turn used as tools to force those with political power to accede to the terrorist’s demands. As such, terrorism is as far off as one can get from Kant’s imperative: Never use any person as a mere means but always also as an end in himself. What makes terrorism morally distinctive is the targeted use of violence against civilians and non-combatants, the intention that this use of violence should create fear in others, including other civilians and non-combatants, and as has been argued by Samuel Scheffler,5 the intention that this fear should destabilize and degrade a social order. The latter point distinguishes terrorism from the kind of terror employed by states towards its citizens, which arguably aims instead at preserving an existing social order. It also suggests that measures against terrorism should be directed at strengthening and stabilizing

4 Jeff McMahan, “War Terrorism and the ‘War on Terror’” (2009) in War on Terror, ed. Chris Miller, Manchester: Manchester University Press. 5 Samuel Scheffler, “Is Terrorism Morally Distinctive?” (2006) The Journal of Political Philosophy: 14, (1), 2006, 1.

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social order while those that might have the opposite effect should be avoided if possible. Although terrorism can be distinguished from state terror, it is less obvious that terrorism cannot be regarded as a species of war. The legitimate a­ uthority clause in just war theory is sometimes taken as a requirement not only on whether a war is just, but also indeed on whether it is a war at all. Nevertheless, it is debatable whether legitimate authority is a necessary condition for something to count as a war, hence the equation of terrorism and war cannot be ruled out simply by reference to the latter’s lack of state ­authority. ­Moreover, although war is often taken to be between states, the Geneva Convention refers to “armed conflicts not of an international character.” This is intended to cover civil war, but it is not clear why it shouldn’t cover other forms of large-scale violence as well and so also terrorism.6 Whether terrorism can or even should be seen as a species of war is of course more than a question of semantics. The status of terrorism has important implications for another controversial question intimately connected to the question of how to fight terrorism, namely “what is the status of terrorists?” For if terrorism is a kind of war, must not terrorists be regarded as combatants, and would that be reasonable? On the one hand combatants can be attacked and killed at anytime, anywhere by enemy combatants. That might not seem to be problematic, since terrorists are typically people we would like to think of as acceptable targets. However, combatants also enjoy certain special rights. They have the right to attack military targets and they may also claim the status of prisoner of war. This side of the coin is much more difficult to accept when it comes to terrorists. Should they have the right to attack military targets when they so indiscriminately target civilians? Are not the rights that “real” combatants enjoy inextricably connected to the recognition of the principle of discrimination? Or, to put it as McMahan does: “a serious problem with treating terrorists as combatants is that terrorists subvert the purpose of the laws of armed conflict: terrorists target civilians and erode the ability to distinguish between those who are threatening and those who are not. To grant terrorists combatant status would thus be to give incentives to undermine the law itself”.7 But if terrorists are not combatants, what are they? Are they maybe simply criminals? Again, this is not a petty semantic question about the meaning of the term “terrorist”, but a deep and complicated issue, which has ramifications for international and domestic law, politics, as well as ethics. For instance, if 6 Helen Frowe, The Ethics of War and Peace (2011), Routledge. 7 McMahan 2009 (N 4) 276.

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terrorists are to be seen as ordinary criminals they should be arrested and tried in civilian courts unless the conditions of self-defence or alter ego defence are satisfied. At the same time, acts of severe terrorism appear to require an institutional response that only military institutions can fulfil, and their activities are governed by war convention and the laws of war. In addition to this problem, one might well worry that the employment of soldiers for police related activities will change the relationship between the police and the military as well as between the military and the democratic state. Although we cannot argue in any detail for this view here, our suggestion is that terrorists should not be seen as criminals. Rather, in virtue of their targets, their recognized common aims and the organisations (such as e.g. isis, ­al-Qaeda or Boko Haram) they commit themselves to, terrorists should be viewed as a kind of unjust combatant that we may call in bello unjust combatant. Let us explain why. Terrorist are in bello unjust, not necessarily because terrorism by definition can never meet the ad bellum requirements (here we suspend judgment with respect to that issue) but because their main strategy is to target civilians and fully neglect the in bello principle of discrimination. Recall that at least the kind of terrorism that we discuss in this paper does not only harm civilians in extreme cases where this can be held to be the last resort or when the civilians can justifiably be held liable for their contribution to harm. Rather these kinds of terrorists intentionally disregard the principle of discrimination and do so in a principled way because their main aim is to spread fear in the whole of society. And according to both traditional and revisionist just war theory, such a course of action cannot be justified, no matter how, from the subjective point of view, the terrorist takes him or herself to have justifications for doing so. We also believe that at least terrorists of the kind we discuss in this paper are most properly seen as combatants and not as civilians directly engaged in hostilities.8 Our main reason is that they fight for an end that is at least state-like in aiming at territorial control and implementation of a set of laws and norms defined by an organisation they acknowledge as an authority. These features turn the hostilities in which terrorist participate into enduring entities that are hard to square with the right that civilians enjoy to move in and out of the role as acceptable military targets at their own discretion.9 8 For the opposite view, see. e.g; Knut Dörmann, “The legal situation of ‘unlawful/unprivileged’ combatants” (2003), International Review of the icrc, 45; 73. 9 Recall that “a civilian who directly participates in hostilities are lawful targets of an attack. When they do not directly participate they are protected as civilians and may not be directly targeted.” (Dörman 2003,73).

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We can now summarise our preliminary investigation. First, acts of terrorism are intentional efforts to kill or seriously harm innocent people as a means of affecting other members of a group with which the immediate victims are identified. Second, terrorism aims to destabilize and degrade a social order so as to achieve some political or broadly ideological goal. Third, persons who ­perform such acts, i.e. terrorists, are properly seen as in bello unjust ­combatants. This implies that they are morally liable to be harmed since through their actions they lose their right not to be attacked or killed.10 Moreover, morally speaking they do not qualify for the privileges that belong to combatants proper, such as the right to attack military targets and to be treated as a pow.11 Finally, since terrorists do not fall neatly into the present categories: we agree with those who argue that we should seek to institutionalise a new set of mechanisms for capturing, prosecuting and imprisoning them.12 However, at least until such institutions are in place, the nature of the terrorists’ battle, its scope, aims and means, makes it appropriate to use military force against them. Assuming the framework of just war theory, there is, however, a final principle that has to be met in order to engage in military operations, namely the ad bellum principle of just cause. We have already concluded that terrorism by its very nature involves atrocities against innocent civilians who are neither liable to be harmed nor is harming them the last resort. We are therefore in the position to conclude that fighting terrorism abroad with military means is morally justified.

Fighting isis by Supporting Local Rebels

Let us now return to the special case of isis. If we set aside the difficult empirical issue of whether a war against this group will have a reasonable chance of success, there seems to be little doubt that the other ad bellum criteria are fulfilled. Although the terror attacks outside of Syria and Iraq might not s­ atisfy the ad bellum requirement of proportionality, in our view isis’s atrocities against the civilian population show beyond doubt that the war against isis has a just cause. Moreover, isis fighters typically fulfil our understanding of

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Here we simply assume that the responsibility condition is met. For a good discussion of this point see McMahan 2009 (N 4) 17–21. Again, for revisionists this class would only consist of just combatants. See Jovana Davidovic, “Just War, isis and the War on Terror” (The Critique, April 1 2015), .

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what we dubbed in bello unjust combatants and can therefore be fought with military force. But how should this fight be carried out?13 Until now, Western forces have carried out airstrikes aimed at destroying the isis’s sources of revenue. However, airstrikes will be morally problematic if they are aimed at cities controlled by isis. As Jeff McMahan has pointed out, such airstrikes “will almost inevitably cause disproportionate harm to the civilian population… Ground forces capable of discriminating between Islamic State militants and civilians will almost certainly be necessary to dislodge the militants from the cities they control.”14 This ground force consists predominantly of people indigenous to the region. There are different ways of justifying the lack of Western troops involved in combat. As we have already seen, McMahan15 fears that Western troops on the ground would be seen as a confirmation of isis prophecies about Crusaders in their Holy Land, thereby causing more recruits to the organisation. Others have argued that indigenous people ought to carry much of the burden since it is their land and they are partly responsible for letting the terrorists organisations get a foothold in the first place.16 But there are also more pragmatic reasons. After the wars in Iraq and Afghanistan many Western countries will have difficulties in getting popular support for any major employment of Western troops on the grounds. We are now in a situation where the role of Western countries is limited to bombing raids as well as training and equipping Syrian rebels in their fight against isis. The problems concerning airstrikes – notably the issue of distinction and proportionality involved in using relatively undiscriminating tactics – are thoroughly discussed in the literature. We want to focus on the other half of the Western contribution to war against isis: to what extent is it morally problematic to train and equip local rebels to fight against terrorism? We will consider one specific question in detail: Can the training and equipping of local rebels involve us in moral exploitation?

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A reviewer for this publication pointed out that one strategy would be to try to show that isis’s way of fighting is incompatible with their religion. This might be a possible longterm strategy, but at this point we are considering more immediate lethal measures to alleviate the civilian population. Jeff McMahan, “Syria is a modern-day holocaust. We Must act” Washington Post, 30 November 2015, . McMahan 2015 (N 14). Fernando Tesón, “isis and Just War Theory”, (Lawfare, December 9 2015) .

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The Problem of Moral Exploitation

Fighting against combatants who do not respect the laws of war places a heavy burden on combatants who want to abide by these rules. Terrorists do not ­respect the principle of distinction and will typically exploit the blurry boundaries between civilians and combatants. Moreover, as has been made abundantly clear, isis will use methods of warfare – the intentional massacring of civilians, beheading, suicide bombers and child soldiers down to the age of seven – which will be very challenging to encounter. These features of isis’s method of warfare have two consequences for the combatants on the ground. First, it will be more difficult to follow the principles of distinction and proportionality. This in turn might make it more physically dangerous to abide by these principles. In order to make sure that one is targeting terrorists and not civilians it may be necessary to gather more information, using more time and thereby exposing oneself to higher risk. Second, these features will also make fighting more morally dangerous. The features described above create a situation of moral risk: combatants who fight isis will operate in a theatre of war in which the chances of committing grave moral mistakes – causing harm to civilians or engaging in disproportionate attacks – will be far higher than in traditional combat. The moral risk of this operation raises the question of whether training and equipping Syrian rebels can be seen as an instance of what Robillard and Strawser17 have called moral exploitation. In general, exploitation involves “taking unfair advantage of or garnering excessive benefit from another’s vulnerability or weakness.”18 In the literature, this advantage or benefit is taken to be some material good or service. Robillard and Strawser, however, make a convincing argument for the claim that this is not exhaustive; exploitation can also involve “unfairly burdening someone with added moral responsibility or moral decision making.”19 They call this moral exploitation. Here is one way of illustrating the phenomenon: Jones and Smith are both professors at the local university. Smith is a senior professor with a tremendous amount of clout and sway in the ­department while Jones is a young assistant professor coming up for tenure. Jones is assigned to jointly teach a course with Smith, during which, 17 18 19

Michael Robillard and B.J. Strawser, The Moral Exploitation of Soldiers (2016) Public A ­ ffairs Quarterly 30 (2), 171. Robillard and Strawser (2016) (N 17) 172. Robillard and Strawser (2016) (N 17) 172.

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a very complicated and morally problematic cheating incident occurs. Aware of Jones’s approaching tenure board, and knowing that, because of this, Jones will likely be compliant with whatever course of action Smith suggests, Smith tells Jones that she, not he, will be the sole person to make the final (and likely controversial and difficult) decision with ­regard to the cheating incident.20 This case seems like an instance of exploitation. Smith takes advantage of Jones’s vulnerability in order to get her to consent. However, Smith does not acquire any material good or service from Jones: “How Smith does benefit, however, is with regard to the moral decision making and potential blameworthiness that he has unfairly off-loaded onto Jones’s shoulders.”21 The advantage Smith achieves by exploiting Jones’s difficult situation is the avoidance of directly participating in a morally challenging situation. After identifying the general phenomenon of moral exploitation, Robillard and Strawser go on to argue “that (at least some) contemporary soldiers are unfairly burdened in this very way as part of their military service and resulting forced moral choices made in and about war.”22 They identify three kinds of vulnerability to which soldiers typically are prone: socioeconomic status, age and epistemic orientation. Robillard and Strawser note that the majority of us military ranks are made up of lower and middle class citizens. 75% of the applicants came from the age range of seventeen to twenty one, and 56% of the applicants were between the age of seventeen and nineteen.23 In addition, Robillard and Strawser suggest, “Soldiers may also be vulnerable in terms of their beliefs, moral commitments, and overall epistemic orientation to the world”.24 This vulnerability, they argue, is exploited by the society at large or the military body at a minimum, which “off-loads or outsources the moral burdens for which they are largely responsible onto those military members who are forced under conditions of vulnerability to bear them.”25 Robillard and Strawser identify three ways in which soldiers could be harmed by this exploitation: First, they might be harmed by the experiential duress that a soldier bears when sorting through the difficult moral decisions that must be made in war; second, as a vulnerable group, soldiers may be disproportionately overexposed 20 21 22 23 24 25

Robillard and Strawser (2016) (N 17) 175. Robillard and Strawser (2016) (N 17) 176. Robillard and Strawser (2016) (N 17) 172. Robillard and Strawser (2016) (N 17) 176. Robillard and Strawser (2016) (N 17) 178. Robillard and Strawser (2016) (N 17) 179.

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to ­high-stakes situations where they could easily make a serious moral mistake; finally, soldiers “might be morally required to commit a pro tanto wrong in service of the all-things-considered good. In doing so, even though the soldier was obligated to choose the action that would promote the all-things-considered good, there is nonetheless the idea that the soldier still has done something wrong (retains a ‘moral residue’) and has incurred some duty of compensation to infringed parties. That is, the soldiers, even if they act rightly, will often have dirty hands.”26

Why Training Local Rebels against isis Can Involve Us in Moral Exploitation

The phenomenon of moral exploitation requires that one party is benefitting from the vulnerability of another. There is reason to assume that the Syrian rebels, just like us Army conscripts, fulfil the condition of vulnerability. Moreover, given the extreme moral difficulty of the fighting they will engage in, it is reasonable to assume that the moral burdens canvassed above will also befall them. Indeed, it seems plausible that the moral risks the rebels are facing are far higher than the ones befalling an ordinary us soldier. It is also plausible that the benefit requirement is fulfilled. We can suppose that the rebels ­either would have to fight in order to defend themselves, or that they have very strong moral reasons to fight whether or not they get equipment or training. The rebels, we might assume, are in an extremely difficult situation and fight for a just cause. Now suppose that Western countries also have a strong interest in the destruction of isis. They could contribute to this cause either by training and equipping the rebels or by providing ground forces themselves. The former o­ ption would be less costly along several dimensions, economically and militarily. For our purposes it is important to notice that the former will also be morally less costly – it will relieve Western troops from experiential duress resulting from sorting through difficult moral decisions, they will not be ­exposed to high stakes situations where they could easily make moral mistakes and they would avoid the moral residue that might follow from actions that are pro tanto morally wrong, but justified overall. Does this mean that the Syrian rebels are morally exploited by Western powers who train and equip them to fight isis? There are several potential objections to this line of reasoning. First, the charge of moral exploitation may seem objectionably paternalistic. Given that 26

Robillard and Strawser (2016) (N 17) 181.

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the rebels want to be trained and equipped, and have consented to fight, it appears paternalistic to take our concern for their moral well-being as an argument against helping them. Consider a case: A friend asks me to lend him money. I know there is a risk that he will use the money for immoral purposes and refuse the loan. I might refuse him the money because of the potential victims. This would not be paternalistic. But I might also refuse him the money because of concerns for his moral well-being. This does seem to be an objectionable form of moral paternalism. Similarly, if we decided not to train and equip the rebels because of worries that they may not be able to abide by the principles of distinction and proportionality, our refusal would not be paternalistic. But if we denied our help solely out of a concern for their moral wellbeing it would. One answer to this challenge could be that the conditions of vulnerability to which Robillard and Strawser refer undermine the autonomy of the r­ ebels. Robillard and Strawser seem to suggest that the vulnerabilities may invalidate their consent. “If, however, the agent’s initial consent was fundamentally derived from his or her pronounced vulnerability (socioeconomic, cognitive, age-related or otherwise), then it would seem that the recruit/would be soldier could not have reasonably refused to transact with the military body in the first place and therefore could not have refused the additional moral responsibility and potential blameworthiness thrust upon him or her.”27 The rebels, just as the us conscripts Robillard and Strawser are discussing, may be vulnerable, but this vulnerability does not, on the face of it, undermine their autonomy. Moreover, given that the rebels want to fight, and have very good reason to fight, one can reasonably expect that the rebels willingly accept the moral risk, or at least would accept the moral risk where they to give it careful consideration. The above reasoning suggests that the vulnerability of the rebels is not sufficient to undermine their autonomy: their consent is valid. This, however, does not exclude the possibility that training and equipping them would be an ­instance of moral exploitation. A transaction between consenting adults can be exploitative. Consider the following case from Mikhail Valdman:28 “Person B is bitten by a rare poisonous snake while hiking in a remote forest. His death is imminent. Fortunately, another hiker, A, happens by and offers to sell B the antidote […] Though it retails for $10, A insists that he will accept no less than $20,000. Since B would rather lose his money than his life, he accepts A’s offer.”

27 28

Robillard and Strawser (2016) (N 17) 173. Mikhail Valdman “A Theory of Wrongful Exploitation” (2009) Philosopher’s Imprint, 9 (6), 3.

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Valdman argues that what makes this case an instance of wrongful exploitation is that A violates “a prima facie moral obligation not to extract excessive benefits from people who cannot, or cannot reasonably, refuse our offers”.29 Robillard and Strawser suggested that the psychological vulnerabilities of conscripts make it the case that they cannot reasonably refuse the transaction with the military body. This, we have argued, may seem objectionably paternalistic. There is, however, another feature of their situation that could make it the case that the rebels cannot reasonably refuse the offer of military equipment and training: The rebels are in an extremely difficult situation and fight for a just cause. Because of this, all kinds of help, including training and equipment, would improve their situation. Although it might be better for them if Western powers also provided troops on the ground, they are not in a position to reasonably refuse the offer of training and equipment. Western powers, it might be argued, are taking an unfair advantage of this kind of situational ­vulnerability, by extracting an excessive benefit from people who cannot reasonably refuse their offer. How should we understand the notion of “cannot reasonably refuse”? Valdman argues that it should be understood in a strict way. He analyses the notion in terms of urgency. In the Antidote case, B was in no position to refuse A’s offer because it was a matter of utmost urgency to get the antidote. If the criteria of urgency is not satisfied, Valdman argues, the victim will always have a reasonable opportunity to refuse the offer. If we assume that the rebels need to fight in order to survive isis, Valdman’s criterion of urgency is met. But what if this is not the case? We can imagine a situation in which there is no urgency in this sense: the rebels need not fight in order to save their lives. They do, however, have a strong moral reason to fight isis, for example in order to avoid more civilian causalities. In this scenario, the rebels have an opportunity to refuse the offer of training and equipment. They can decide not to fight, thereby avoiding the significant physical and moral risks that fighting against isis involves. But the rebels can only refuse the offer at the expense of their moral commitments. This seems like a genuine case of moral exploitation, although markedly different from the case discussed by Robillard and Strawser. In the case of non-moral exploitation, a person extracts an excessive benefit from a victim who cannot reasonably refuse because it would be dramatically detrimental to his own interest. In this scenario, Western powers are extracting an excessive benefit from groups who take on a serious moral and physical burden, but who cannot refuse because it would be dramatically detrimental to their moral commitments. 29

Mikhail Valdman 2009 (N 27) 3.

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The above argument presupposes two assumptions, both of which may be false. First, it presupposes – pace McMahan 2015 – that Western troops on the ground would not be counterproductive. Second, it presupposes that the rebels and Western countries have an equal moral obligation to fight isis. If, as for instance Tesón30 has argued, the rebels have a special obligation to fight isis, because it is “their war”, it seems implausible that the benefit that ­Western countries would gain from the rebels’ combat would be unfair or exploitative. The issue of who has strongest moral obligation to fight against isis falls outside the scope of this short paper. We therefore conclude this part of the paper with a conditional claim: if the rebels and Western countries have an equal moral obligation to fight is, and if the contribution of Western troops on the ground would not be counterproductive and have reasonable chance of ­success, it seems plausible that merely training and equipping them is an instance of moral exploitation.

Moral Coercion, Moral Exploitation and Conditional Support

We have argued that merely training and equipping rebels can, given certain presuppositions, be viewed as an instance of moral exploitation. We will now consider another aspect of supporting rebels in counterterrorist activities: to conditionally support rebels provided that they only engage in fighting enemy A, when they would prefer to also fight enemy B. This form of support can also be morally exploitative, we will argue, given that three conditions are fulfilled: i) fighting enemy B is morally better than fighting A, ii) the supporting party has the opportunity to support the fight against B, and iii) the supporting party benefits from the fact that the rebels only fight against A. This case will differ from the kind of moral exploitation discussed in the previous section, and it will share some important similarities with another concept, recently discussed in the literature, namely that of moral coercion. We will therefore develop our case by considering similarities and differences between moral coercion and moral exploitation. In general, exploitation and coercion differ in several respects. Exploitation typically involves the exploiter taking unfair advantage of an existing vulnerability – for instance the exploitee’s ignorance, economical situation, or emotional state. In typical cases of coercion, by contrast, the coercer creates a situation, in which the coercee is pressured to act against his own interests. A gunman, who threatens to kill you unless you give him your money, coerces 30

Tesón 2015 (N 16).

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you. A hiker who finds you thirsting in the desert, and demands $1000 for a ­bottle of water, exploits you.31 These simple examples also point to another difference between exploitation and coercion. Some cases of exploitation will harm the exploitee. But in other cases the exploitative relationship can be mutually beneficial. The man thirsting in the desert is better off with the bottle of water than without it. Both the hiker and the thirsting man benefits from the transaction, although it is unfair and exploitative. Coercion, by contrast, typically makes the coercee worse off than he would have been had the coercion not occurred. In the example with the gunman, it is better to give the money than to lose one’s life. Yet, it would be better still if the gunman never showed up. As Zwolinksi32 suggests: “Coercion characteristically involves threats by which the coercer proposes to make her victim worse off unless she does as the coercer demands. Exploitation, by contrast, often involves offers by which the exploiter proposes to make her victim better off if she does as the exploiter proposes.” The pressure a coercer puts on a coercee can take different forms.33 First, he can physically force the victim to acquiesce. In that case it would be physically impossible for the victim to resist. Second, the threat may put the coercee under duress, so that it would be psychologically impossible to resist. Third, and most interestingly, the coercer may provide an incentive for the coercee to commit an action by ensuring that some other event will occur if the coercee refuses to commit the action. This form of coercion is at play in cases of blackmail, human shields and hostages, and will be the focus of our discussion. Exploitation, as we have seen, can come in both moral and non-moral forms, depending on the kind of burdens and benefits that are involved in the transaction. A similar distinction can be made for coercion. In the standard non-moral cases, the coercee is put in a situation, in which he is forced to choose between perceived costs to his own interests. Blackmail, for instance, works like this. The person being blackmailed is forced to choose between letting himself being exposed, or paying the blackmailer. Both options make him worse off than if he wasn’t blackmailed, but one option (being exposed) is typically worse than the other. In cases of moral coercion, the perceived costs are moral. Typically, they will involve the choice between perceived costs to third party agents. Recently, Saba Bazargan has presented the following scenario as a case of moral coercion: 31 32 33

Matt Zwolinski, “Exploitation”, The Stanford Encyclopedia of Philosophy, 2016, Edward N. Zalta (ed.), , 2.2. Zwolinski 2016 (N 30). Saba Bazargan, “Moral Coercion” (2014), Philosophers’ Imprint, 14 (11), fn 6.

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SHIELD A villain wishes to kill an innocent enemy of hers. She knows that if she tries to do so, you will shoot her. So she grabs three children and uses them as human shields; the only way for you to stop the villain from killing the innocent is by shooting through the children. If you do not shoot the villain, her innocent enemy will die, but the three children will be allowed to go free. If you shoot the villain, her innocent enemy will remain unharmed by the villain.34

In light of this scenario Bazargan, analyses moral coercion as follows: In such cases a wrongdoer (C1) intentionally denies an agent (C2) the option of preventing both of two distinct sets of harm (φ and ψ) from befalling others; C1 does this in order to provide C2 with an incentive to commit or allow the lesser of the two harms (φ), thereby achieving C1’s goal.35 As should be clear from SHIELD, isis’s use of human shields e.g. when they fled from the Syrian town Manbij after defeat by US-backed fighters, is a case of moral coercion. When using human shields, ISIS intentionally takes advantage of the us backed fighters’ commitment to the principle of distinction with the aim of allowing the lesser of two harms (the terrorists escaping). What such episodes show is that training local rebels to abide by moral norms of war can put them in a situation in which they might be vulnerable to moral coercion. However, this can hardly be said to make our action of training the local rebels morally dubious. That we have contributed to making them committed to the moral norms of war does imply that we contribute to them being put in a very difficult situation tactically and psychologically. Nevertheless, if they ought to engage in counter-terror activities, they would not be better off morally speaking if they did so without commitment to these moral norms. We believe however that there is another way in which the training of local groups to fight isis can involve those responsible for the training in a form of moral exploitation, which shares some similarities with Bazargan’s case of moral coercion. These are cases where countries conditionally support rebels with training and equipment provided that they only engage in fighting enemy A, when they would prefer to also fight enemy B. Below we will consider the question of whether the fight against isis and Assad fit this pattern. However, 34 35

Bazargan 2014 (N 32) 1. Bazargan 2014 (N 32) 2.

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in order to illustrate this general structure of moral exploitation, it will be helpful first to consider some cases from an everyday life:

WHISTLEBLOWER Sarah and Alice know that Henry, the boss in Alice’s office, is sexually harassing the young secretaries. Alice asks Sarah, the only person she trusts in this situation, for moral advice and support. Sarah is convinced that harassment is morally wrong, and she also wants to make sure that Henry, whom she knows has been considering applying for a job in her own company, is blocked so that he cannot get anywhere near her. Sarah tells Alice that she has an obligation to attempt to remove Henry. Since Sarah is a social psychologist, she also gives Alice extensive advice on how to proceed. Additionally, she offers to give Alice economic support, since she assumes that Alice would have to go on leave for several months.

In line with our earlier analysis we believe that in this case Sarah is not morally exploiting Alice. Rather, she enables or facilitates Alice’s acting morally correct by morally, strategically and economically supporting her. That Sarah has an additional personal reason to end Henry’s career does not change the status of Sarah’s action. Consider, however, the following addendum to the scenario:

WHISTLEBLOWER* Henry is, however, not the only moral problem in the company. Both Sarah and Alice know that Tom is also a serious harasser, at least as bad as Henry and he holds a more powerful position in the company. They also both know that removing Tom will be very hard as some of those who will help Alice remove Henry will protect Tom. Moreover, they also realize that when Tom finds out (as he surely will), that Alice is the one who got Henry fired, he is likely to make things very hard for Alice, as her moral commitments are dangerous for him as well. Outing Henry thus comes at a very high cost for Alice. Nevertheless, Sarah tells Alice that she will not support her in any way in fighting Tom.

We believe that in WHISTLEBLOWER* Sarah is involved in moral exploitation. Let us first compare the case to that of moral coercion. In moral coercion, per Bazargan’s analysis quoted above:

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a wrongdoer (C1) intentionally denies an agent (C2) the option of preventing both of two distinct sets of harms (φ and ψ) from befalling ­others; C1 does this in order to provide C2 with an incentive to commit or allow the lesser of the two harms (φ), thereby achieving C1’s goal. In WHISTLEBLOWER* there are two moral harms, Henry’s harassment and Tom’s harassment. To permit either of them to go on are pro tanto wrong but all things considered it is better to stop one of them than to stop neither. Sarah ­intentionally denies Alice the option of preventing the greater harm, for ­although Alice is well placed to succeed in preventing both Henry’s harassment and Tom’s harassment, she can prevent neither without the help of S­ arah. But Sarah only wants to help in the case of Henry. Thus Alice has to choose between (a) doing nothing and letting the greater harm happen (the continued harassment by both Henry and Tom) or (b) doing something and letting the lesser harm happen (the continued harassment by Tom). What makes this morally objectionable is that Sarah intends to actualise her aim, namely to stop Henry, by taking advantage of Alice’s moral insight that (i) harassment is morally wrong and ought to be fought and that (ii) letting one harm happen albeit pro tanto wrong is still an all-things-considered good. In doing so Sarah is ­willing to add an extra cost to Alice’s action, namely the high risk of Tom’s negative reaction towards Alice. If we assume that Alice does not have a g­ reater moral obligation to remove Henry than anyone else while Sarah has an extra interest in removing him, the added cost that Alice has to carry seems unfair. Our case of exploitation differs from Bazargan’s case of coercion in several ways. In SHIELD it is impossible for the coerced to avoid both sets of harms. One can neither change the villain’s intention of shooting the innocent person, nor shoot the villain without shooting the three children. In the case of Alice one might object that she in some sense can fight both Henry and Tom, all she needs is moral courage and integrity. We agree that the impossibility she faces in fighting both Tom and Henry is different from a physical impossibility (shooting someone without harming their human shields) and psychological impossibility of changing someone else’s (a villain’s) mind. Nevertheless, the lack of strategic resources and the high personal costs Alice faces if she attempts to fight Tom as well makes it as a matter of fact impossible for Alice to remove Tom without Sarah’s help. Thus Sarah in effect deprives Alice of the option of fighting both Henry and Tom. In SHIELD, C1 creates the situation in which C2 has to commit a (pro tanto) wrong. In WHISTLEBLOWER*, Sarah does not create the situation; she is not implicated in Tom’s action. Moreover, Sarah’s intention is not to help Tom carry on; rather, she honestly believes that Tom’s behaviour is morally ­objectionable. What Sarah does is however to knowingly permit harm, harm by Tom to Alice

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and harm to those he continues to harass. In permitting this harm, she takes advantage of the situation, and benefits from Alice’s inability to remove e­ ither Tom or Henry without Sarah’s help. Sarah denies Alice the possibility of doing what is morally best, but which she cannot do without Sarah’s help. In SHIELD, C2 has two choose between two bad options but cannot avoid both. In ­W HISTLEBLOWER*, Alice is put in a situation where it is optimal to do two morally good things, but she can only choose the least good. As a consequence, SHIELD and WHISTLEBLOWER* differ in their wrongmaking features. According to Bazargan, what makes coercion morally wrong is that the coercer uses its victim in a particularly objectionable way. “C1 uses C2 by turning the teleological structure of C2’s goals on its head. C1 puts C2 in a situation where C2’s goals become self-undermining in that she would betterachieve her own goals if she didn’t have them”.36 C2’s commitment to morality is leveraged to serve as a means to an unjust end. This is not the case for WHISTLEBLOWER*. Alice’s commitment to morality isn’t leveraged to serve as a means to an unjust end, but rather exploited to serve a just, though morally suboptimal end. These differences suggest that WHISTLEBLOWER* is an instance of m ­ oral exploitation rather than moral coercion. Alice is exploited by Sarah because Sarah takes advantage of Alice’s vulnerability in an unfair way. One might argue that Alice isn’t worse off because of Sarah’s actions. After all, it is better that Sarah helps her against Henry than if she doesn’t help her at all. Even if that were the case, it would not undermine the claim that Sarah is exploiting Alice. As we have seen above, in the example of the hiker in the desert, a transaction might be mutually advantageous, and thus not all things considered harmful, and still be exploitative, provided that the transaction is unfair. But in WHISTLEBLOWER* there are two distinct senses in which Alice is harmed. First, her action against Henry increases the risk of her being sanctioned by Tom. If Sarah had helped her against Tom as well as against Henry, this risk would have been greatly minimized. In this sense Sarah is willing to expose Alice to an increased risk of harm, thereby adding another avoidable harm to Alice’s action. Second, Alice will bear the psychological cost of knowing that she could have stopped Tom, if only Sarah would have helped her. She will be able to observe the consequences of her inaction, by seeing other women harassed by Tom. Again, this is not a cost that she would have had to bear if Sarah had been willing to help. 36

Bazargan 2014 (N 32) 6.

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What WHISTLEBLOWER* suggests is that when we consider the case of Syria in which the Assad regime undoubtedly harms at least as many innocent civilians as isis, the strategy of only training and supporting rebels against isis and not also against Assad’s troops could involve us in moral exploitation. What we must ask ourselves is (a) whether the local rebels are sufficiently like Alice in being dependent on our help. The answer to this clearly seems to be yes. Another question (b) is whether we contribute to adding risk of increased harm by Assad to the rebels if we enable them to fight isis. This is not unlikely as successfully trained rebels will pose a greater threat to Assad’s regime than other groups. We must further ask ourselves (c) whether their motivation to fight isis is based on their moral insight that this is a just cause and that it is better to fight one wrongdoer than none. This is more difficult to assess. What we must assume is that in fighting isis they fight for a just cause, for this is the assumption that makes it morally legitimate for us to engage in their struggle in the first place. To what extent the justness of their aim is part of their ­motivation is hard to know. The same goes for their moral calculation about permitting one wrong rather than two (or more). Despite these empirical uncertainties we at least know from WHISTLEBLOWER* that utilizing such moral insights could turn our support of the rebels (only against isis) into a case of moral exploitation. This should suffice to show that the strategy of supporting the rebels only against isis is risky, morally speaking. A final question (d) is to what extent our willingness to add an increased risk to the rebels is determined by our interest in removing isis for our own sake. Again, such a feature is hard to measure, but being aware of it is still important. For if there is a not insignificant likelihood that our willingness to contribute to an increased risk of harm to the rebels is due our interest in removing isis for our own sake, we must have very good reasons for holding that they, rather than we should carry such a risk. And maybe the current argument, to wit that they are more likely to succeed than we are, is insufficient.

Conclusion

In this paper we have identified two different situations in which counterterrorism can be viewed as an instance of moral exploitation: by training and equipping rebels, instead of providing troops on the ground, and by conditionally supporting rebels with training and equipment provided that they only ­engage in fighting enemy A, when they would prefer to also fight enemy B. ­Both of these cases require several assumptions, which may not hold in the actual fight against isis and Assad. Nevertheless, we believe that we have shown that

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the strategy of supporting local rebels might be morally speaking more risky than one might have thought, for it is by no means obvious that the conditions that pertain to our examples do not also hold in the actual cases. To us it is at least far from obvious that local rebels have a greater obligation to fight isis than we have, for isis’s power and growth is clearly in part due to our military involvement in the region. Neither is it obvious that our own troops could not have achieved at least as much as local rebels, had only our commitment been strong enough and sufficiently long-term. These factors, in addition to our obvious self-interest in getting rid of isis and the moral, psychological and ­physical costs the rebels have carry, show that the preferred Western strategy against isis is in danger of being a case of moral exploitation.

Chapter 3

What Terrorism is and is Not Boris Kashnikov If there is any value that does have value, it must lie outside the whole sphere of what happens and is the case…. For all that happens and is the case is accidental. What makes it non-accidental cannot lie within the world, since if it did it would itself be accidental.1 ludwig wittgenstein

∵

On the Definition of Terrorism and Terrorisms

I begin with a search for definitions. The words “terror”, “terrorism” and “terrorist” are derived from the Latin verb “terrere”, meaning “to instill fear” in people, “to frighten”. To frighten is to cause an event, the transactional effect of which is to generate a state of acute, sudden or prolonged fear in victims. If the event is so sudden and shocking, acute fear is induced; the term then is more properly “to terrorize”. Thus “terrorism”, “acts of terrorism” and “acts of terrorist” take the response in other people over time with an intensity of emotional response. Of course fear is a normal cause-effect of war: mention the word terrorism at the same time and we then can become confused about causes and effects. Deliberately inducing terror and terrorism reached the political lexicon of Europe in the 14th century, when the works of Livy (Titus Livius 59–17 bce) were translated from Latin into French. It is generally accepted that the term * This study was prepared within the framework pf the Academic Fund Program of the national Research University Higher School of Economics (hse) in 2015 (Grant 15-05-0069) and supported within the framework of a subsidy granted to the hse by the Government of the Russian Federation for the implementation of the Global Competitiveness Program. 1 Ludwig Wittgenstein, Tractatus Logico-Philosophicus (Kegan Paul 1922) 6.41. He also writes of “the limits of my language signify the limits of my world”, ibid 5.6, with events happening beyond our powers of expressing them in language, and signifying our intuitive recognition of value beyond what we can ever say or write.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_004

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gained currency during 1793–4, when the French Revolution reached a stage of internal crisis. The most frightful atrocities were inflicted not only on the ancien régime, but towards supposed reactionaries amongst the revolutionaries themselves. Known as the “Reign of Terror”, such societal revolutionary terrorism gave the lie to the earlier and loudly proclaimed rationality, as well as a ­denial of sorts with the romantic aura which the French Revolution produced in European and World history. The ensuing power struggle, while precursory to the general spread of republicanism and nationalism as legitimate ends, later took on the more traditional characteristics of protracted and conventional wars of conquest against other nations, the Napoleonic wars. But we encounter the problem today in that scores even hundreds of definitions, tangential to the different legal codes of different nation-states,2 by and large are negative, reflecting death and destruction only in a generic paradigm, describing what terrorism is not, things being denied to victims, rather than what terrorism is, and how the dynamics of terrorist actions can be understood. The definitions of terrorism are thus paralleled by what is termed in theology as apophatic (negative), and cataphatic (positive) way of describing God, noted by the 9th century theologian John Scotus Erigena (800–877 bce).3 In similar manner, terror and terrorism reside in peoples’ minds as a ­supreme negative, and therefore categorically confounding Jus in bello principles. Terrorists as revolutionaries seemingly challenge “legitimate authority” and “just cause” principles of jus ad bellum. However, more often than not, this is also true of war- fighting in general. The crux of all the arguments is that, in addition to a great deal of mystification, “terrorism” becomes a statement of negative value and emptiness, its tactics being nihilistic in character. Indeed, the terrorist becomes an object of fear, hatred and scorn, irrespective of any meaning behind the terminology.4 Of course even the most obvious contemporary terrorists do not negate their own being. They see themselves as positive agents, “freedom fighters”, “insurgents”, or “soldiers of Allah”, etc. It is also apparent that somebody’s terrorists are always somebody else’s f­reedom 2 Walter Laquer. The New Terrorism: Fanaticism and the Arms of Mass Destruction (oup 1999) 5. 3 A theological term, apophetic means negative, the positive term being cataphatic. “We do not know what God is. God Himself does not know what He is because he is not a thing. Literally God is not, because He transcends being”. https://plato.stanford.edu/entries/scottus -erigena/ accessed 30 April 2017. To contradict Erigena, God of course knows what he is. He knows he transcends being, which further perplexes our human ontological understandings. 4 In the 19th century in Russia it was otherwise. Those Russian terrorists considered themselves to be the descendants of the French Revolution, proud to be called terrorists, often being objects of admiration, adoration and romance. Che Guevara had a similar romantic mystique for the 1970s.

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­fighters. A value term remains a value term no matter whether positive or negative, even if it may often change from the positive to the negative. Anyway as a result, the word has acquired very strong emotive connotations of the one dominant and negative paradigm. I believe there are three more characteristics definitions of terrorism as ­applied by victim societies. The first treats terrorism, acts of terrorists and acts of terrorism as lacking any sort of legitimate authority. Terrorists seem to commit ideologically motivated super-crimes, often seen as a conspiracy against the whole of humanity, difficult or impossible to combat by means of ordinary national and international criminal codes. Such agents of terror act beyond the norms of humanity, with ferocious inhumanity, thus committing crimes against human beings. While states have to unite to treat such acts of terrorism, often as a matter of supreme emergency, if they themselves use reciprocal means of terror and torture, are themselves in danger of infringing the norms of human rights and standards required of liberal-democratic nation-states. They are thus hardly any better than the terrorists they are battling. My second understanding treats terrorists as deliberately flouting a legal just cause, and initiating a new form of war as if waged by criminals for criminal reasons. In this case we have to use special technical means during special counter-terrorism operations, categorized as such. We have to pass special laws and exemptions for such police operations merging with military operations. My third understanding is that terrorists are often accused of lacking the restraints of jus in bello in their struggle, and thus create a new form of political extremism on a par with war criminals, whether the number of their victims be great or small. However these are generalized contexts: more precise definitions of terrorism are needed. In today’s world “terrorism” is a mental state, only of meaningful substance when expressed in physical activities, “happenings” in Wittgenstein’s phraseology. As a result the “war on terror” is similar in category to, say, a war on the d­ ynamics of poverty or the drugs trade. These so-called semi-metaphorical wars are the result of certain actions of the certain agents. If we use the term war without any reference to agency, it becomes vague or void. War on terrorism thus is taken to refer to metaphysical and supersensible effects, apprehended by an equally mysterious supersensible faculty of moral intuition in society, linked to the raison d’état of nation-states. However, this meaning fails to explain one essential feature of both terror and moral language, namely its close connection with action, its essentially dynamic character. This is not simply a harmless play of terms; our thinking self-perpetuates with an endless war of insubstantial concepts described by Negri and Hardt as:

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War against a concept or set of practices, somewhat like a war of religion, has no definite spatial or temporal boundaries. Such wars can potentially extend anywhere for any period of time. Indeed, when u.s. leaders announced the “war against terrorism” they emphasized that it would have to extend throughout the world and continue for an indefinite period, perhaps decades or even generations. A war to create and maintain social order can have no end.5 Terrorism is thus, as a concept, a negative, apothetic. Terrorisms, plural, of which I describe five distinct typologies, are positive, cataphatic – what terrorist are, rather than what they are not. In my understanding, terrorism is a form of mass violence distinct from the legitimate state monopoly of force, on a par with criminal violence, police operations, war and genocide, but it also has some characteristics of its own. Like for any other type of use of force, a terrorist has a special strategy as well as tactics of getting their way, by means of inducing into their enemies a sense of insecurity, fear and terror, rather than using more direct and obviously purposeful violence. Terrorism frequently tends to overlap with war and other forms of mass violence. It tends to increase with the degrees or scale of enmity. In primitive warfare this overlap was almost total, since war-fighting itself was stripped to bare essentials. Enemies were terrorized in every way, as a means of being sure of total surrender, sometimes followed by the massacre of whole enemy communities. We must also keep in mind that terrorism cannot exist without the agents with their own specific motives, methods and goals. It is the agents, not terrorism as such, which should be our primary concern.

The Nature of Terrorist Action

To frighten and to terrorize constitutes both the oldest and the newest effect of violence6 on God’s earth. In what follows I will refer chiefly to “acts of terror” and “terrorist acts”, indicating human agency. Thus we can be capable, in our imagination, to get inside minds of terrorists by means of exposing their motives, intentions, means and goals, and also recognizing some sort of 5 Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (­Penguin Press 2004) 14. 6 “I will send my terror before you and will throw into confusion all the people against whom you shall come, and I will make all your enemies turn their backs to you”. The Bible Exodus 23, 27.

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­ nderstanding, if not sympathy, with their cause. I intend to stay away from the u bewitchment of language, by sticking to straightforward facts. It will enable me to employ descriptive rather than prescriptive propositions. My approach thus may be deemed phenomenological as I try to eliminate the duality of subject and object and come to contemplate phenomena from within. Terrorists’ activities comprise both social and communicative actions. They strike within a community of social interaction, and are intended to cause ­social consequences. Such actions are supposed not only to cause physical harm, but mostly to send messages, ones that terrify. The success as well as the very essence of acts of terror depends not only on what one as an observer can concede as the quality and quantity of the terror inflicted, but on what we can consider as the eloquence and magnification of its message. At the same time the logic of acts of terror is basically the same as the logic of all large-scale mass violence, including war, with political agendas, codified by Clausewitz. The moral effect has a tendency to grow exponentially, to achieve irreconcilable enmity and absolute repugnance. This achieved, all major forms of violence simply seem to merge in one whole, a seeming totality of violence, with a dangerous blurring of edges between the major forms of violence. The fact that, demographically, physical harm resultant on a terrorist act may be proportionately slight, with few harmed or killed, but the effect can be greatly magnified through global communication. That is always the terrorist expectation and hope. Given this depth of enmity there may be no distinctions between war, terrorism, genocide, criminal violence or even armed-police operations. Probably any form of large-scale and mass violence has the same logic – the tendency to go down the metaphorical slippery slope, leading to absolute enmity, which can only be eliminated by using a countervailing force of arms. Terrorism is no exception. We have learnt that terrorism, as a means of violent struggle, should not be regarded as something so utterly immoral as to be completely indistinguishable from war. I shall return to this matter, but first of all I have to describe terrorism as paradigmatic, communicative actions. Say social group A (an ethnic group, ­religious sect, social class or a significant group seeking recognition as a ­nation-state) wants to change the current political situation (to seize power, deprive someone of power, introduce new values, win the war, subdue other groups, etc.). They use violent methods and tactics to achieve terror in their opponents. But the determination of group B is to prevent it from happening. It is possible for group B to wage war, or inflict genocide eliminating the ­entire group A. Or it is also possible to induce reciprocal fear, even terror against group A. Each side attempts to counter by all means, including terror

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tactics against each other’s symbolic authorities and institutions, or particularly the leadership of the élite. The violence/force may be minimal or overwhelming. The end-state is important. Often wars are won, but not the peace if a high level of fear remains. Fear, simultaneously as cause and effect, of course matters to both sides. The paralysis induced by fear may be worse than violence and much more efficient. Do would-be terrorists need to act at all in order to achieve their goals? Having been done once or twice for effect, terrorists need not actually blow up numerous bombs in a whole series of say supermarket attacks. Violence is demonstrably used against some wholly innocent, random group to demonstrate the terrorists’ power to strike when they want, and when they can, and without warning. The phenomenon of individuals being singled out for assassination sends another message, beyond the elimination of particular members of an élite. Acts of terror are hardly efficient against a well united community or liberaldemocratic society, and even in dictatorships and totalitarian societies. Terrorism is most efficient against weak, individualistic societies or against ­corrupted élites holding too much power over their populations. Counter-intuitively one could claim that modest terrorism, in principle at least, can sometimes be much less vicious and harmful in comparison to war and cause much less net damage. That depends on the effectiveness of the message which terrorists ­attempt to send. We know then that societies are assailed by terrorist for moral effect through communicating fear and terror. Communication is a social activity. I believe that Max Weber’s typology of “social action” explains for us four types of terrorism with great clarity, upon which I shall model my arguments below, while adding a fifth classification from other sources. According to Max Weber, “an action is ‘social’ if the acting individual takes account of the behaviour of others and is thereby oriented in its course”.7 ­Depending on the motive, the means and goals any action may be regarded either as “affective” meaning emotional,8 “traditional”, “value-rational” or “rational”. The fifth type takes into account the latest developments in social-science related to the so-called “death of the subject”, Michel Foucault’s well-known hypothesis, beyond the simplicity of Enlightenment thinking, a retreat from subjectivity and emotion. This is why I believe we have to add to the list one 7 Max Weber, The Nature of Social Action. W.G. In Runciman, “Weber: Selections in Translation” (cup 1991). 8 “Affective” (emotional), is contrasted in the discipline of analytical psychology to “conative” (strength of will) and “cognitive” (brain-power).

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more social action, which I term “hyper- rational”.9 Here we have to deal with a special form of social action, beyond understandings of normal subject-object, rational-irrational and cause-effect dichotomies.

Typologies of Terrorism

So, in reality I believe that there is not one form of terrorism; there are many forms of terrorism; they are subtly but sharply differentiated. When it comes to ­violence, the different types of terrorism are different in terms of motives and the socio-psychological values which trigger these motives. They may be influenced by traditional social values, psychology, ideology, rationality or the considerations of supra-rationality. As a result, we may speak of “affective” ­being emotional acts of terrorism, “traditional” acts of terrorism, “value-­rational” ­being ideological acts of terrorism, “rational” acts of terrorism and “hyper-­ rational” acts of terrorism. These actions must be treated differently, avoiding the notion of a single “generic terrorism”. What brings the different types together is ­solely our language, which as Wittgenstein asserts, can be a serious limitation to ­understanding.10 While all types tend to cause widespread fear, that is all they have in common. Our misconception is based on highly subjective, emotional and assertive definitions, not analytical ones. As soon as we employ analytical definition the reality of terrorism then splits apart in a number of different, indistinct, but generic typologies. If we are only driven by fear, and fear alone, we may see nothing else but TERRORISM written large, “the writing on the wall” as in biblical times11 and timidly avert our eyes, awe-stricken. When we are driven by the practical ­necessity to deal with the physical threat, we simultaneously need to deal with our own mental states, including a tendency to be fearful. It follows that we have to accept that as there is no common way to curb the different types of acts of terror, designed to terrorize in so many different ways. The slogan “fighting terrorism” is not only empty; it is harmful if we deny those differences. The expression “combatting terror” may have some ­practical 9

There is an ongoing debate whether this classification plunges us into the nature of actions of pre-modernity, or, on the contrary, signals the hallmark of post-modernity. 10 For instance in the language of the Saami peoples living near the arctic circle in norther Europe, there is no such term as “snow”. There are scores of different words indicating different states of what we, simply, call “snow”. Probably the better we know “terrorism” the less we need the general term, concentrating on more specific terms. 11 See The Bible, Daniel, 5.

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e­xplanation, namely it may help security agencies and bureaucracies all around the world to concentrate resources and restrict social freedoms. However, it may also perversely help terrorists to create emergency situations and inflict even wider general panic. Both terrorists and national élites too often treat the public as a herd. If there had been no terrorism, it might have to have been provoked anyway by some dysfunctional countries. Any decay of liberaldemocratic virtues the world over has much to do with the incipient threat of “terrorisms”12 because terrorist often can be seen succeeding. I shall now cover each classification in turn. Affective, Emotional Terrorism This type of terrorism has only a loose similarity with terrorism as a generic concept. What makes it a case of terrorism, is not the motive but the results. Indeed very often these acts appear motiveless. They are essentially the acts of one individual, acting alone, a person with a deep grudge, perhaps in deep psychological distress or pathological ecstasy. One can take for example random murder against Israeli soldiers in the Occupied Territories in Palestine, and against Russian soldiers in Chechnya. Affective, emotional terrorists do not have any far-reaching strategic goal for causing general fear. By tossing a bomb into a column of marching soldiers, an affective terrorist simply expresses his own passions, without thinking of distant consequences as part of a terrorist campaign. Acts like these would be deemed illegal under Anti-terrorist legislation, but we have to understand that affective terrorism is a psychological aberration, wholly different from all other types of terrorism. As we shall see below, one of the mistakes of the ­Russian anti-terrorist operations in Chechnya was misunderstanding this type of terrorism. Traditional Terrorism What I call traditional terrorism is driven by habit and not by individual ­psychological necessity. This type of terror has only superficial similarity to the generic and linguistic meaning of terrorism. The motive here is to do with the mores of social circumstances in an area in which violence is rife, including occupied territory after invasion. Sometimes it is simply the tradition of fighting invaders by all possible means, in wars of survival, or total war. The desired goal is anyway to follow the tradition of terrorizing, causing large-scale reaction leading to ultimate defeat. 12

See Richard Sennett, The Fall of Public Man (Knopf 1977).

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In their time the cases of blood-revenge against the soldiers of an invading foreign army in Afghanistan, or the disputed role of the Russian security forces in Chechnya, were becoming so numerous, that the result seemed to fit the vague generic model of terrorism. In both cases honour-killing for purposes of revenge for the death of a relative inflicted by the invaders, was rife. Indeed any foreign soldier or even any foreigner, civilian or military alike, will fit the criterion deserving violent retaliation. The resultant acts would deliberately cause much terror and may be regarded as terrorism in legal terms. However, to wage “war” on this kind of terror is like attempts to extinguish fire by pouring oil on it. Ideological, Value-Rational Terrorism The first historical form of terrorism was the state terrorism of Jacobins soon after the Great French Revolutions of 1789. The first major non-state form was inherent in the Russian revolutionary terrorism of the 19th, early 20th c­ entury, from the “People’s Will” group to the “Socialist Revolutionaries” (sr) acting with violence against the reactionary government of the Tsar. In both cases the terror induced was deliberate and the goal was the creation of a new society, based on new values. Ideological terrorism, as a type, has much to do with value-rational action. For the ideological terrorist it is usually the case that the ideology he is striving for seems so great that all legal and moral constraints may be cast aside, so that the ideology comes actuality. Violence, killings and executions are justified by the greater foreseen value of creating the visionary new society. Ideological terrorism seems rather anachronistic, but it still exists. Some ideological terrorist organizations still linger (e.g. “Red Brigades” in Italy and “Red Army” in Japan). These organizations pursue somewhat fantastical or chimerical goals from the viewpoint of pure rationality. However they are, in a way, rational since in the long run the values they are striving for are supposed to enhance the circumstances of society, in say, terms of better living condition, a more meaningful life, prosperity, a longer life span, as well as supposed equality and freedom for all. Rational Terrorism Rational terrorism is about inflicting terror for totally rational and deterrent considerations. It is often the case that to succeed in any undertaking one has not only to use pressure, which might degenerate into violence and terror as well. This may be true of both state and non-state terrorism. What I call rational terrorism may often be justified in use by governments to maintain legitimate security. What is rational can be moral. For instance self-defense, national liberation movements, combatting crime or uprising against tyranny.

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It may also be completely immoral, for instances using abject fear for purposes of private aggression, mass robbery, conspiracy, etc. The intentions and goals, moral, immoral or amoral, are however quite rational in their way, and therefore understandable. It is hard to deny that the nuclear attack on Hiroshima in 1945 was an act of terror, a rational one and presumably an ethical one, at least in terms of utilitarian ethics. The same is true of the carpet bombing of Germany by raf aviation, during the World War 2. In both cases the purpose was to inflict terror on the civilians, inducing their moral collapse in order to end the war. As we shall see below, the successful terror attack by Basayev in Budenovsk saved the Chechen separatists from the inevitable defeat in June 1995 and therefore it was totally rational. Similar methods of rational terrorism may be used by criminals against the police or gangsters against each other, as punitive and exemplary operations. Thus rational terrorism is striving for rational goals, using acts of terror as rational means, frightening people into submission, restoring security and peace. However, such terrorism may also be closely related to business, by people driven to extreme acts. The margins between legal and illegal business are blurred. Any major acts of terror may affect a major redistribution of property, oil prices and world currency rates. Terrorists well know this. With the continuous advancement of global capitalism and the lack of a corresponding global civil society, we are risking ending up with a global society of crime and insecurity, maybe even leading to war and the use of weapons of mass destruction. Economic crisis, poverty, war, terrorism, they all tend to merge into one feeling of acute and chaotic insecurity. Global networks of terror are becoming almost as strong as transnational corporations and mafias. The future may discover a very dark side to globalization: the possibility of an unholy alliance of terror, state, crime and commercial chaos – the horsemen of an impending new Apocalypse – including nuclear release by or against North Korea, as a current possibility. Hyper-Rational Terrorism Classical terrorism, which we have encountered so far in its rational or ideological forms was, by and large, terrorism of closely knit organizations of zealots and sometimes of states, pursuing the rational goals of national liberation or ideology, or both. By hyper-terrorism I understand the terrorism of al-Qaeda, Islamic State (isis) and some other more obscure groups, such as the Aum cult, Solar Temple, Munists and Seventh Day Adventist. The terrorism of this a new type is known by a variety of names. It has been called post-classical terrorism, transnational terrorism, global terrorism, radical Islamic terrorism,

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religious terrorism, and now hyper-terrorism. But it is not the name which matters but the spirit behind the action. The hyper-rational actions of terrorists may sound irrational, but only in terms of these traditional dichotomies. This type of terrorist action demonstrates a specific, maybe unique type of rationality/irrationality. It is, strictly speaking, a physical action used to overcome the opposition of both subject-object and rationality-irrationality. It is not an action which necessarily achieves any specific goal. On the contrary it presupposes the destruction of the self, both in the direct meaning of the terms suicide- or martyr-terrorism, but also an in indirect one which metaphysically rejects both individualism and individualistic values. Hyper-rational means excessive rationality applied to any social action. Hyper-rationalists cling to their faith in reason as desperately as fundamentalist believers cling to their faith in God. Over-zealousness can defy reason through Aristotelian excess. In hyper-rational actions an agent is pursuing super-­individualistic goals transcending the self, and not in terms of the ­rational collective physical interest of the larger group or even mankind as a whole. Hyper-rational action is not even an act of sacrifice, because there is no subject, in the other words the subject has merged with the object by means of submission – often to the supposed will of God. In principle such types of terrorist acts may be both actions of absolute violence and counter-intuitive, absolute pacifism. However all of this is only possible in the auspices of a deep religious belief, which counter-intuitively both includes and excludes the individual’s preoccupation with the self. The fact is that this terrorism, despite the confusion, is really specific. The enemy of the traditional terrorist is a government or a group, sometimes a ­particular nation. But international and transnational terrorism is different. Khosrokhavar, rightfully ­describes it thus, This type of activism, which some call hyper-terrorism, differs from classical terrorism. It has no overriding political purpose. It does not attack political entities and is not intended to challenge a politically defined order. It is directed against the world as a whole, as symbolized by the United State, although countries such as France, Britain, Spain or Saudi Arabia may be its actual targets.13 The birth of this new terrorism may be considered as 20 March 1995, when the followers of the Aum cult released poison gas in the Tokyo underground in 13

Farhad Khosrokhavar, Suicide Bombers. Allah’s New Martyrs (Pluto Press 2005) 162.

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order to terrorize the what they considered was an ungodly society. But later this strand of terrorism was taken over and monopolized by Islamic radicalism. However, it is important to recognize that monopolization does not mean identity. It is characterized by its absolute enmity against the world and absolute disrespect for human life as it is. Humans are simply regarded as bearers of satanic evil, thus lacking any positive value. By committing terror action, the terrorists, as in the case of martyr-terrorism, are supposed to fulfil all they need in this life and simply evaporate into a different mode of existence, some sort of after-life. In fact this type of terrorism should not be regarded like other more ­generic terrorism. It is the manifestation of absolute enmity. The war it wages is an absolute war, being a combination of terrorism, criminal violence, war proper and genocide. It is absolute war pure and simple, since in absolute war all forms of violence tend to merge. This strand of terrorism may be both state and non-state. As we see in the case of isis, terrorists may use the facilities of the state, or seek to create a new super, transcendental state for the purpose of eliminating all other states, the universal Caliphate. We should rather regard this type of terrorism as a form of absolute war, not terrorism as we used to know it.

Acts of Terror: Moral Constraints

The mistake of current definitions of terrorism is not only a misunderstanding of the major motives of terrorists, but also the assumption that terrorism means the lack of some or all moral constraint. This is not necessarily true. We must consider the opposite possibilities. Acts of terror can sometimes be much more morally constrained in comparison to war proper, both in terms of jus in bello and jus ad bellum. All the known moral constraints on violence may be applicable to terrorist actions.14 We usually blame terrorists, because they are supposed to violate many if not all of the principles listed below. Terrorists do not necessarily violate these principles, and even if they do, the violations do not usually exceed the typical violations taking place in conventional war and counter-insurgency operations. In the book, published in 1880, The Terrorist Struggle by one of the most ­notable experts of Russian terrorism, Nikolai Morozov (1854–1946), we can find the most systematic and quite convincing ethical justification of acts of terror against the state of Tsarist Russia. The book was evidently influenced by On 14

See Nick Fotion and Bruno Coppieters (ed), Moral Constraints on War. Principles and C ­ ases, 2nd edition (Roman and Littlefield 2008).

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War by Clausewitz and is supposed to prove that terrorist war is much purer and far more just form of warfare. A terrorist war against a reactionary state, Morozov claims, should be waged by means of terror against individuals, not only because it is efficient, but also because it is the most just way of struggle. Such acts could indeed be strictly limited. Morozov was confident that three or four assassinations of the Tsars, each in turn, one immediately following the other, would bring a total collapse of the political system. The power would fall into the hands of the socialists, who would use the state apparatus to introduce socialism, freedom, equality, and justice for all. Of course individual terror should be all embracing and total. Not a single governmental official should ever be free from the fear of sudden and unpredictable execution. The aim of all this terror was like a double-edged sword. The official state would be paralyzed, and the masses would be awakened from their slumber. This war should be waged by terror not only because of its supposed efficiency, but also because it was a way to constrain violence. Only ­governmental officials were supposed to be targeted and only those, who were personally responsible of crimes against the people. The terror thus was intended to be morally constrained, with jus in bello principles of discrimination and proportionality carefully respected, not to mention the principles of jus ad bellum, which in theory are totally honoured, as part of the just war tradition. The massive revolutionary movements, where people fight each other bluntly, where people slaughter their own children, at the time when the enemies are looking at their deaths, from the safe havens, – it substitutes by a series of separate, but always efficient and well targeted political ­assassinations. It executes only those who are truly guilty of the continuous evil. Terrorist Revolution should be regarded as the most just of all possible revolutions.15 The case of the Russian revolutionary terrorism may be regarded as old fashioned and exceptional, since contemporary terrorism is rather different. Still there is no denying the fact that terrorism may have much to do with the principles of a just war. In Morozov’s arguments it may be even much more morally constrained and just, in comparison to the most just of all possible wars. If it is so, it is not terrorism itself which is to be blamed, but the tendency to absolute war, which terrorism shares with war proper and indeed with all other form of massive violence. I shall now examine briefly on just war principles and possible attitudes which may constrain terrorists. 15

Nikolai Morozov, Terroristicheskaya Borba (Russkaya Tipografia 1880) 7–8.

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Just Cause According to this principle we have the right to use violence only if we have sufficient moral cause as justification for it. Usually it is self-defence, or the defence of others, but not only. It could be so called humanitarian intervention and even the protection of human rights globally. In fact terrorists ­almost always claim justice of their cause on the same grounds. We may not like it, not regarding their cause as a just one. But there is every reason to believe, that injustice may be so unbearable to some people that an act of terror could be justifiable in their eyes. The enemy is usually regarded as a cunning fiend, an aggressor, who was not only the first to aggress, but who continues to do so. For instance the Hezbollah programme runs: We declare openly and loudly that we are an umma [a Muslim community] that fears God only and is by no means ready to tolerate injustice, aggression, and humiliation. America, its Atlanta Pact allies [nato], and the Zionist entities in the holy land of Palestine attacked us and continue to do so without respite…. This is why we are, more and more, in a state of permanent alert in order to repel aggression and defend our religion, our existence, our dignity.16 Even such an audacious terrorist as Usama Bin Laden claimed the existence of a just cause for his war. The latest and the greatest of these aggressions [by the Zionist-crusader alliance], incurred by the Muslims since the death of the prophet … is the occupation of the Land of the Two Holy Places – the foundation of the house of Islam, the place of the revelation, the source of the message, and the place of the noble Kaaba, the qibla [the direction of prayer] of all Muslims – by the armies of the American crusaders and their allies.17 Something similar may be found in almost all programmes of the organizations professing terrorism. Sometimes such rhetoric sounds doubtful, but no more doubtful than the rhetoric of political states declaring war on each other. 16 17

Barry Rubin and Judith Colp Rubin (ed), Anti-American Terrorism and the Middle East: A Documentary Reader (oup 2002) 51. Usama Bin Ladin, “Declaration of War (August 1996)” in Barry Rubin and Judith Colp ­Rubin (ed) Anti-American Terrorism and the Middle East: a Documentary Reader (Oxford, New York, etc.: oup 2002) 137.

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Basically just cause, as proclaimed by terrorists, ranges from self-defence to defence of others, and even to providing some kind of genuine humanitarian relief, only not in terms of protecting human rights and democracy, but in service of an ideology or the “true religion” of Allah. Allah cares for his followers and their consciences; they need protection from sin and persecution, often violent protection. Good Intentions Intentions may be good depending on how well they correspond to the objective rightness of the cause. It is often the case that justice of the cause simply works as a smoke screen, a permission to inflict violence, which has little to do with the officially declared rightness of the cause. Terrorists are in much better shape in this regard than those who respond with militant, national war-­ mentality, a so-called “warrism”. At least their intentions, even if we do not ­approve them, are consistent and sincere. Legitimate Authority The legal right to use violent means belongs only to a narrow if powerful circle of agents, namely nation-states and certain international organizations. All the rest are not supposed to have legitimacy enough to wage a legal war. This principle, of course, is too restrictive and hardly applicable to contemporary wars. If we stick to it consistently no guerilla war, no national liberation war and such like would be allowable, such as in Libya and Syria in recent years. Terrorism does not necessarily violate this principle, but even when it does, the violations do not exceed the violations of war proper. War is often waged by non-state agents and the worst acts of terror are very often the acts of fully legitimate states. Proportionality An act of terror may be just if it guarantees the elimination of even greater evil and is lesser evil in comparison to what might have been otherwise. If it is an act terror against a single representative of the élite and, if by murdering this representative, we might prevent the genocide of the whole nation, then we are presumable justified by our actions. Many people will find that this appeals to their moral intuition and sensitivities. Again, I do not here see any difference of terrorism from war proper. Terrorism is almost always t­ riggered by ­considerations of Walzer’s a so-named “supreme emergency”.18 There are few objective criteria to separate the supreme emergency from a less-than 18

Michael Walzer, Just and Unjust Wars, 3rd Edn (Basic Books, 2000).

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“supreme” one. Besides, the same happens with war proper, when it comes to supreme emergency, the legitimate states tend to switch to open acts of force which induce fear and terror anyway. A Reasonable Chance of Success It would be unjust to start any violent activity if it really does not have any chance of success. If we do, we are driven by what St Augustine condemned as “… love for violence, revengeful cruelty, fierce and implacable amenity, wild resistance and lust for power and such like …”19 In fact the principle is valid only for the aggressive wars. When we are in the right and are brutally attacked, we do fight, despite possible calculations of failure, and we often win, just because we fight more spiritedly. The terrorists very often do think of themselves as wrongfully aggressed, which exempts them from the criterion of reasonable chance of success. At the same time, when it comes to rational or value­rational terrorism, this principle tends to be followed. Again, in my view there is no difference from war proper in this regard. Last Resort Violence is supposed to be the last resort, when all the other measures have been already used and failed. There is no reason to deny the possibility of this principle being honoured by terrorists. We may disagree with them in any particular case, but the same problem exists for war proper. The principle is very vague and succumbs to subjective interpretation. Here is very eloquent statement from the programme of Hamas. [Peace] initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem are all contrary to the beliefs of Hamas…. Those conferences are no more than a means to appoint the nonbelievers as arbitrators in the lands of Islam. Since when did the unbelievers do justice to the believers? …. There is no solution to the Palestinian problem except by jihad. The initiatives, proposal, and international conferences are but a waste of time, an exercise in futility.20

19

20

St. Augustine, Contra Faustum in M. Dods (editor) The works of Aurelius Augustine. Vol. 6: Writings in Connection with the Manichaen Heresy, (translated by R. Stothert ( T. and T. Clark 1872) 22, 74. HAMAS, “Charter (August 1988)” in Barry Rubin and Judith Colp Rubin (ed ) Anti-American Terrorism and the Middle East: a Documentary Reader (Oxford, New York, etc.: OUPress 2002) 55.

What Terrorism is and is Not

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As we can see the principle is not rejected, but it is claimed that jihad is simply the last resort. Besides, the legal principle is so vague, that one man’s first resort may be another man’s last resort, with interchangeability of terms and intentions. Proportionality “in bello” According to the criterion proportionality in bello the application of violence should not be excessive. Any excessive violence beyond the necessary ­minimum for success of the operation should be excluded. A terror act is not necessarily disproportional. Certain brands of terrorism are much more proportional in comparison many acts in war, but even if it is disproportional, war may be disproportional to even greater extent. There is every reason to believe that the contemporary war is disproportional almost by definition. Discrimination “in bello” According to this principle combatants on one side are supposed to discriminate among enemy combatants and non-combatants on the other side; only the former may be regarded as legitimate targets. Terrorists are supposed unashamedly to violate this principle, since terror becomes much more efficient if it is waged in the most indiscriminate manner. Again, this is not necessarily true in my view. Some terrorists stick to this principle consistently, as exposed below in the case of nineteenth century Russian terrorism. However, even if they do not, contemporary war is in no way morally better in this respect.21 The only difference is that it finds an easy excuse in the so-called avoidance of “collateral damage” principle. Hypocrisy makes a mockery of the principle of discrimination in view of the increasing number of civilians perishing in contemporary wars, even with the smartest of weapons employed. Extreme care and restraint needs to be exercise when force is used against religiously inspired movements however violent, including “jihad” – holy war in the Muslim world. All personal motives, be it hubris, revengeful spite or personal glory, should be suspended. It is also impossible to victimize innocent people. In accordance with the Quran, the jihad is the most just of all wars, ­being waged by just means including proportionality and discrimination.22 Still, a jihad is waged to inflict terror on unbelievers and thus it is a terror war by definition, because it is claimed to have a higher legitimacy, as being God’s will. 21

22

Of course all these principles are extremely subjective. They are dependent on who determines them, who defines the basic elements. Thus, the United States could be proclaimed a terrorist state. See Noam Chomsky, 9–11 (Seven Stories Press 2001). James Kelsey, Islam and War (Lousville, ky.: Westminster: John Know Press 1993) 29.

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Terrorist acts being a method of fighting and terrorizing for effect may in principle be much less vicious and far more discriminative in comparison to war. It would be thus much more logical to fight militant war-mentality, warrism, instead of terrorism. If we compare the most vicious terrorist act, say the 9/11 attacks on the usa, and the mildest form of the most recent means of i­nducing extreme pressure and the fear of a sort of war by starvation, ­namely trade sanctions against Iraq, terrorism sometimes looks much less murderous.23 Summarizing restraints, in my view, what is really morally wrong with both terrorism and war is the common tendency to slide down the slope into “­absolute war”. That type of warfare was coined by Clausewitz, who took it as an abstract logic of war, but never as a real option of politics and Realpolitik. Carl Schmitt takes it as a reality, which tends to subdue definable political motives.24 What we consider as the most vicious terrorism (isis and Al-Qaeda) should in fact be regarded, not as terrorism proper, but as absolute war waged by some groups of radicals against the very foundations of contemporary civilization. In a world in which opponents mutually consign each other to the abyss of absolute denunciation before they can be destroyed physically, new types of absolute enmity seem to be inevitable. Enmity becomes so frightful that perhaps one no longer should speak of the enemy or enmity, and both should be outlawed and damned in all their forms to metaphysical abstractions, before the work of destruction can begin. Then the destruction will be completely abstract and completely absolute. In general, it no longer would be directed against an enemy, but rather would serve as given objective realization of the

23

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In a public debate on cbs in 1996, the former Secretary of State, Madelene Albright, was questioned by Leslie Stahl on the necessity of establishing a blockade against Iraq, thereby bringing about the death of 500 000 Iraqi children “We have heard that a half million children have died in Iraq. I mean, that’s more children than died in Hiroshima. Is the price worth it?” Albright’s reply was unequivocal: “I think this is a very hard choice, but we think the price is worth it.” (cbs, 60 Minutes, 12 May 1996). See Alain de Benoist. Carl Schmitt Today: Terrorism, “Just” War, and the State of Emergency (Arktos 2013) 2. It is permissible to ask, who is the real terrorist, Albright or Ben Laden? The answer is far from comfortable for the usa. Carl Schmitt continues this line of thought. In his Theory of the Partisan (Telos 2007) he claims that there are three stages of any war in terms of enmity, namely conventional war, real war and absolute war.

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highest but empty values, for which no price will be too high. Only the denial of real enmity paves the way for the destructive work of absolute enmity.25

Conclusions

Contemporary definitions of terrorism are the product of a certain bewitchment of language. They contain mostly negative and highly emotional characteristics. Our understanding of terrorism suffers from vagueness and the lack of objectivity. On close scrutiny, terrorism splits into very diverse objective ­institutional settings, having very little in common, whenever we try to employ the descriptive language of facts. What we call “terrorism” results from very ­diverse strivings of the agents, embracing all possible social actions including affective, traditional, value-rational, rational and hyper-rational terrorist actions. Each of these diverse “terrorisms” deserves special treatment, which is why the very term “terrorism”, not to mention the slogan “fighting terror”, is  has to be considered only vague but a meaningless term. This vagueness triggers an excessive demonization of terrorism. In reality, the various types of “terrorism” are less bad in comparison, death for death, injury for injury, to what should be regarded as the ultimate paradigm, mass interstate or globalwide ­violence – namely war and total war. Terrorism may not just fit all the ­principles of the Just War, but it can also do it much better in comparison to war proper. Terrorism, as a form of violence, may prove to have much cleaner moral record in comparison to war, besides war-fighting and terrorism very often switch sides. I make these claims not to justify terrorism, but to discredit contemporary war. We tend to be fascinated by war, and we tend to hate terrorism. In reality, terrorism is simply the other side of the same coin, contemporary asymmetric warfare. The contemporary categories of post-heroic war and terrorism, stand and fall together. If war, rather than peace becomes the social norm, even if it is a limited war in the form of a global police operation, or a humanitarian intervention, terrorism will necessarily arise. It is an inevitable product of both globalization on the Western terms and asymmetric warfare. There is every indication that the world goes down the metaphorical slippery slope to ­absolute war, which knows no distinction between large-scale criminal vio25

Carl Schmitt, Theory of the Partisan Intermediate Commentary on the Concept of the Political. Trans. by G.L. Ulmen (New York: Telos Press Publishing 2007) 67.

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lence and police operations, of terrorism, war and genocide. They all tend to merge in one satanic totality of permanent war. Terrorism mighty well have a place in asymmetric war, and it may be preferable to all-out conventional wars of ­national survival and total wars, which kills thousands and millions of people. CASE STUDIES26

Terrorism in Russia 1866–1917

In what follows, I shall demonstrate some of the tentative theoretical conclusions I make by providing descriptive facts and insights derived from two ­narratives of terrorist activities and counter-terrorist responses from R ­ ussian history. I believe they will illustrate terrorism seen from both sides of the ­violence, proving that there are always two or more parties with motives and effects of their actions. Firstly, I describe terrorism of the Late 19th and the beginning of the 20th Century. Secondly Chechen terrorist activities and the Russian response, beginning with failure, but later at least achieving containment if not final peace. The outbreak of terrorism in Russia by the end of 19th and into the beginning of 20th century is well documented. In the words of Anna Geifman, From April 1866, when the former student Dmitrii Karakozov made the first unsuccessful attempt on the life of Tsar Alexander ii, through to July 1918, when Lenin and his closest associate, Iakov Sverdlov, ordered the assassination of Tsar Nicholas ii and soon thereafter proclaimed a general policy of Bolshevik “red terror”, a half century of Russian history was blood-stained by revolutionary terrorism.27 The phenomenon of Russian revolutionary terrorism is multi rooted. One of its roots is found in the ideas of French socialist Blanqui, who was the first to proclaim the possibility of installing socialism by means of a socio-political, revolutionary conspiracy. A second root is found in Russia itself. The ideas of Blanqui were further developed by Peter Tkachev and Nikolay Morozov, who as has been mentioned above, provided the moral justification of the 26

27

In more details these and other case studies are analyzed in the book: Nick Fotion, Boris Kashnikov and Joanne K. Lekea, Terrorism. The New World Disorder (London Continuum, 2007). Anna Geifman, Thou Shalt Kill. Revolutionary terrorism in Russia, 1894–1917 (Princeton, n.j.: Princeton University Press 1993) 3.

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t­ errorist struggle. The revolutionary terror especially of the so-called Socialist-­ Revolutionaries (srs) was really all embracing and persistent. Between 1894 and 1916, close to 17,000 individuals became victims at the hands of revolutionary terrorists in Russia.28 Their very first terrorist acts were truly highly discriminative (see jus in bello principles above). Each official was supposed to be punished for his personal crimes.29 The discriminate nature of sr’s violence was slowly decreasing in the heat of the struggle for two reasons: growing public enmity and criminalization of the revolutionaries’ cause. Of the 671 employees of the Ministry of the Interior killed or injured by terrorists between October 1905 and the end of April 1906, only 13 held high administrative positions, while the other 658 were mere city policemen, security ­personnel and coachmen caught up in the violence.30 The moral decline of the terrorists of this new type was evident, even to the srs themselves. Some of them diagnosed the disease as Nechaevism.31 But it was not only Nechaevism. Nechaev, with all his Machiavellian cunning, was still an iron-willed revolutionary who was able to give up his life and put aside all personal considerations. The terrorists of the new generation were different. Probably the best exposition of the morality of the brand new terrorists was delivered by the head of the combat organization – Boris Savinkov. In the fashionable novel, entitled Pale Horse,32 published under a pseudonym. His colleagues were depicted as immoral, arrogant, disillusioned and sadistic. The srs were not the only Russian terrorists at the turn of the century. Terrorist tactics were gradually adopted by Bolsheviks, so-called “maximalists”, anarchists and ordinary criminals. None of them had organizations comparable to the sr party and none deliberately adopted terror as part of a programme. Nevertheless, they used terror even to a greater extent than the srs. The level of neglect of the discrimination of target principle and the lack of concern for the value of human life was even greater in comparison to the srs. Not surprisingly, their level of moral motivation was much lower. These 28 29 30 31

32

Geifman, fn 27, 21. The noted terrorist Ivan Kaliaev once refused to toss a bomb in Grand Duke’s carriage as soon as he learned that the Duke’s family was accompanying him. Geifman, fn 27, 40. Sergei Nechaev (1848–1883) was one of the most notorious terrorists of the older generation. He murdered one of his own men – a student by the name of Ivanov, who questioned the authority of his leader. Later Nechaev was arrested by the government on the charge of murder. He never hesitated to use force and fraud even towards his followers in order to achieve strict compliance, and get money. His behaviour was generally regarded by the revolutionaries of the first wave as immoral. Dostoyevsky depicted Nechaev in his novel Devils, which was also the name he gave to terrorists in general. The devil is supposed to ride a pale horse at the end of times.

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organizations represented the slippery slope of moral decay, due both to the tendency to absolute enmity and the tendency to their criminal commercialization of terrorism. Thus the maximalists made an attempt on the life of the Prime ­Minister Arkadii Stolypin in the most indiscriminate manner without any concern for innocent life. On another occasion, a maximalist armed with a ­revolver ­entered a police-occupied private apartment and opened fire randomly. He escaped, leaving many people dead, very few of whom were policemen, the object of the attack. The anarchists also adopted the tactics of terrorism. But unlike the srs and even the maximalists, they lacked any central organization to coordinate their actions. They also had a principled disregard for discipline. Dozens of loosely organized “Black Banner” units waged terrorist war on their own accord. They usually did not bother to find an appropriate target. Any official they did not like could become a target. The most notorious among the anarchists were the so-called “Bezmotivnik’” terrorists (motiveless terrorists). They used to cooperate with the lower strata of society, especially thieves. In practice, they did not distinguish themselves from ordinary criminals. In theory, they claimed that their acts of robbery should be regarded as revolutionary activity. It is true that they, unlike the criminals, very often demonstrated personal courage and dedication. Nietzschean supermen served as their models of behaviour. The seamy side of the Russian revolution drew on the criminal classes. They always cooperated with Russian revolutionary movements of all orientations, including the Social Democrats and even Liberals. Time and time again, many criminal gangs claimed that they possessed the revolutionary spirit in their willingness to expropriate the unjustly accumulated money of the rich. In Soviet Russia, the Bolsheviks used the service of the criminal world once again for effect. This time they used them to guard the regime’s political opponents kept in the “Gulag”. These criminals were used to inflict terror on the potential political opposition to the regime. The moral decay of revolutionary terrorism in Russia became evident in the case of Evno Azef. Azef was a member of the Central Committee of the Socialist-Revolutionaries and coordinated the activity of the Combat Organization of the srs. It is well documented that he was a paid agent of the R ­ ussian secret police. Terrorism was a successful business for him. Not only did he accept a handsome amount of money from the Russian government, he was also extremely successful in raising money for terrorist groups. As it turned out, he embezzled a great deal of these funds. At the same time, the government was too ill-organized to strike back at the terrorists and the police e­ fforts were a mere mockery of a real struggle. The weapons and the techniques of

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the police were both outdated and cumbersome. Prisons resembled clubs, where terrorists could discuss their programmes and tactics, and the Siberian settlements for the political convicts were reminiscent of resort hotels. In fact, the government went out of its way to assure the rest of Europe of its humanism. This c­ ulture of what I call traditional terrorism led to an undermining of the i­nternal resilience and cohesion of the Russian state. In October 1917, the power of the weak state was seized by Bolsheviks, who suppressed terrorism by means of inflicting control through widespread and incipient fear, installing what one might call the ultimate terrorist state.

Terrorism in Chechnya 1994–2004

When the Soviet Union broke up in 1991, Chechnya remained an autonomous region within the Russian Federation. The two dynamics of Chechen terrorism are separatism and Islamic radicalism. The Chechens claim for independence led to the first Russian-Chechen war of 1994–1996. That in turn, led to the outbreak of the second war in September 1999, which then led to full Russian control over the territory. The war that the Chechen rebels fought at the very beginning was rather clean in terms of jus in bello norms and practices. The Chechen rebels honoured the principles of discrimination and proportionality; and their attitude to prisoners of war was reasonably humane. But in the course of war, and after suffering heavy casualties and several defeats in the increasingly asymmetric warfare, the rebels gradually began to employ terrorist tactics. To some extent, this was a rational response. The rebels could not hope to defeat the powerful Russian army in regular field-operations. Further, they thought that their terrorist tactics would put pressure on the weak and corrupt Russian government of Boris Yeltsin. Last, but not the least, what might seem to be terrorist tactics, were, instead, often acts of mere revenge. These acts were not centrally planned, but were carried out by the members of this or that clan against Russian soldiers in general, or some particular unit, responsible for the death of a certain Chechen individual. The Russian indiscriminate artillery and aviation fire produced heavy casualties among civilians and the vicious circle of violence was thus established. For the Chechens, with their traditions of blood revenge, acts of individual terror seemed to be the only way to respond effectively. All of these

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considerations, no doubt, contributed to the launching of the first terrorist ­attack on Budenovsk by the Chechen rebels led by Shamil Basayev.33 The Chechen attack in June 1995 was shocking. About 100 fighters emerged out of the blue in that peaceful town in southern Russia. Within few hours, they rounded up hundreds of people and herded them in to the local hospital. Altogether, the Chechens held about 5,000 hostages. It was the largest hostage taking in history. They mined the hospital entrances and put their fighters with machine-gun in defensive positions. The fighters hid behind children, the sick, pregnant women and doctors. The attack of the Russian troops went ahead, but when the hostages were forced by the Chechens to stand in the windows, wave white sheets and scream, it stopped. After the second storming failed, Prime Minister Viktor Chernomyrdin personally began to negotiate. There would be a ceasefire in Chechnya, and Basayev’s men would be allowed to escape. True to their word, the Russians signed a ceasefire accord on 21 June. This time the successful terrorist tactics saved the Chechens from defeat. Almost the same scenario was staged by the other warlord Salman Radujev in Pervomaiskoye in January 1996 not far from Chechnya. But this time, although the Chechens took several hundred hostages, the Russian military attacked, and did not negotiate. It is fair to say that the first Chechen war was lost by the ill trained and poorly led Russian army. The army was comprised chiefly of the 18-year old conscripts, themselves just a frightened crowd of youngsters, opening fire at everything that moved and very often on each other. By the end of 1996 an armistice was signed, on terms near to being a Russian capitulation. But the almost de facto independent Chechnya, which won the war, failed to win the peace. The total collapse of its economy, endemic corruption of the government, banditry, and lawlessness turned out to be the features of Chechen post-war social life. Soon, the ideas of radical Islam started to infiltrate into Chechen society. The new leaders of the Chechen republic became confident that they would never find support in the West. But radical Islamists, including al-Qaeda and the Taliban, were ready to give support. In return, they wanted Chechnya to become a militant Islamic republic. The ideology of Wahhabism (an 18th century traditional Islamic movement) started to spread over the republic and was adopted by the most powerful warlords. At the same time, motifs of Chechen greatness and Islamic caliphate coexisted with the expansionist idea of a 33

Basayev lost almost all his relatives in the Russian indiscriminate aviation attack on ­ edeno village. One may claim that the first terrorist operation of the Russian-Chechen V war was provoked by revenge. Basayev was cast in the same mould as Tolstoy’s Haji Murat and Gogol’s Taras Bulba.

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liberated single “Caucasian Home”, or “Caucasian Confederation”. These ideas became very p ­ opular.34 As a result, Chechnya was officially proclaimed an ­Islamic state in 1998. But at this point the Chechen society split. The majority of ordinary Chechens and Chechen religious leaders, unlike the new warlord élite, did not want to confront Russia in another war; and certainly they did not want to adopt Wahhabism as a state religion.35 They were sick of the instability and devastation caused by the earlier wars. Further, some of the Chechens became pessimistic about the notion of gaining independent status. It seemed evident to them that one clan or another would always rule an independent Chechnya; and that clan would be the sole beneficiary of the country’s independence status. Nevertheless, the radicalization of Chechnya continued. The militant ­Islamists intended to continue the war with Russia to reach their goal of creating the Islamic Republic of North Caucasus. In reaching this goal, terrorism was a high priority in their plans. Early in the year 1999, several apartment buildings were blown up in the Russian Dagestan city of Buinaksk, and in Moscow. The plan was to demoralize and frighten Russian society. Soon after that, the Chechen Islamic radicals crossed the border and invaded the neighboring Russian republic of Dagestan. As a result, the second Russian-Chechen war started in May 1999. The official Chechen propaganda threatened all kinds of terror on R ­ ussian society including the devastation of nuclear power plants and chemical factories.36 But this time, both Russian society and the Russian army reacted differently. The population supported the government in a programme to put down the rebels; and this time the army was better equipped and organized. In September 1999, the new Russian president Vladimir Putin ordered a military

34 35

36

Valery Tishkov, Chechnya : Life in a War-Torn Society (University of California Press 2004) 201. One of the major Chechen religious leaders Akhmad Kadyrov said: “The Chechens did not become Russians in 300 years of occupation and they are not going to become Arabs as well”. “We won’t just sit here in Chechnya and be exterminated. I warned that we would fight in Russia and there are a lot more targets. We have radioactive elements, biological weapons that Russia left us. We could put biological weapons in Yekaterinburg and let them all get sick. To put uranium in Moscow would require one person. One of our people gets killed and a city dies with him. … If someone spits at you in the face for half a year, wouldn’t you spit back just once? That’s what we did and we’ll do it again”. An Interview with Shamil Basayev in Sebastian Smith, Allah’s Mountains : The Battle for Chechnya (Tauris 2001) 200.

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assault on Chechen strongholds. By spring 2000 Chechnya was occupied by Russian Federal troops, but the terrorist assaults still continued. The terrorism of the Chechen guerillas had two main targets now. It was aimed at those Chechens, who supported the official government backed by the Russians, and it was also aimed at the Russian public. A considerable number of Chechen officials fell victim to the Islamic radicals. But, this time, the Chechen Islamists miscalculated. They made the same mistake the Russians made at the first campaign. They did not take into account the traditions of vendetta still in place in Chechen society. As soon as a member of a clan is murdered, he has to be avenged. The acts of terrorism against the Russianbacked officials led to retaliations and from there into a general vendetta of the clans. Both Russian-backed and al-Qaeda backed clans were exposed to fullscale terrorist tactics against each other. Both sides took hostages and killed people at random. In effect, the war turned into one for the domination of the republic. The other side of this terrorism was directed towards the Russian p ­ opulation all around the Russian Federation. There is intelligence that these acts were well subsidized by al-Qaeda. For many Chechen rebels, al-Qaeda was their only source of money. On many occasions, the terrorists engaged in suicide bombings. Some of these bombings were innovative in their use of women called the Black Widows. They were supposed to be Chechen women whose husbands had fallen in the war and thus expressing their hatred by retaliating through acts of terror. These female martyrs seemed to be not only efficient killers, but also terrifying symbols of death incarnate. They made the Russian public tremble. About two dozen Black Widows’ attacks are recorded, mostly in Moscow. The cost of their attacks was several hundred innocent lives. The last notable act of Chechen terrorism was the Beslan school hostage crisis, also referred to as the Beslan Massacre. It took place on September 2004 when armed Muslim terrorists took more than 1,200 school children and adults hostage in the Russian town of Beslan in North Ossetia. This terror act was not successful and in fact totally irrational. The terrorists failed to control the ­situation. General panic occurred; the police rushed in and eliminated the terrorists, albeit with a huge loss of life. As a result much of the World changed its image of Chechen freedom fighters and in 2017 the European Court of Human Rights found fault with the ­security forces. Terrorism in Chechnya continues to fade away in memory, for the time being.

Chapter 4

Divided by Ethical Choices? New or Old Debates between “mainstream” Terrorism Scholars and Their Critics Asta Maskaliūnaitė The term “terror” came into political vocabulary during the French r­ evolution and initially was used as a “dirty hands” argument of necessity to act ­ruthlessly in a dire need of the hour. Robespierre proclaimed an intimate connection between virtue and terror, stating that the principles of revolutionary ­government should have both virtue and terror as its principles, “because terror without ­virtue is fatal and virtue without terror is powerless”.1 Its derivative noun “terrorist”, however, never had such a potentially positive connotation and, as soon as Robespierre’s head rolled down from the guillotine, acquired a negative tinge of abuse of power and wanton violence. The social science study of the phenomenon was also saturated with ethical and moral concerns. In this article, rather than focusing on the ethics of war, the morality of terrorism as such and ethics of fighting against this challenge, I will concentrate on the somewhat different but as important question of the study of terrorism and its ethical implications. I will focus on a recent debate around this topic in which issues of scholarly ethics have assumed paramount importance. Since almost its inception as an area of investigation the scholars working in the field of terrorism studies agonized over the quality of works produced in this research area and identified various problems that plagued it. In the middle of the first decade of the new millennium a group of scholars started ­arguing for the complete overhaul of the field and juxtaposed their position to the “traditional”, “mainstream” terrorism studies as Critical Studies on Terrorism (further on – cts) project. In this article I will focus on their criticisms of the terrorism studies and will argue that the major divide between the two, at the moment quite distinct, approaches rests on the different understanding of the role of researcher/scholar/expert and their choice of engagement 1 Maximilien Robespierre, “On the principles of political morality that should guide the ­National Convention in the domestic administration of the Republic” in Slavoj Zizek (ed), Robespierre: Virtue and Terror (Verso 2007).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_005

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with or disengagement from the policy makers, which is presented as an ethical choice. The article is divided into three parts. The first part presents the discussion on the flaws and issues of the field in the “mainstream” of terrorism studies and the cts research agenda. The second part discusses cts adherents’ notions of “mainstream”, or what they call “orthodox”, terrorism scholarship The third part will look deeper into the image of the “orthodox” scholarship and the ethical choice of policy relevance. Here the issue will be located in the historical context of discussions about the role of social science and the relation between a scientist and a policymaker after the project Camelot in the us in the 1960s and 1970s.

“Mainstream” Terrorism Research and cts Agenda

The wax and wane of interest in terrorism as a topic for research is, ­seemingly more than any other subject, closely linked with the events that periodically bring attention of both the general public and researchers to it. While first French and then Russian revolutionary terror as well as that of other ­totalitarian regimes continued to keep scholars interested in political violence, terrorism came to limelight after 1968 failed student revolutions spawned a number of small groups intent to use violence throughout the Western world. It gained particular prominence after the 1972 events in Munich Olympics that became “the spectacular event that inaugurated the era of modern terrorism”.2 From then on, the expertise on terrorism started developing and the field itself started to take shape, yet never becoming either a robust discipline or more than a very marginal interest for most of the scientific disciplines whose representatives took part in its advance.3 The 9/11 attacks in 2001, renewed interest in the topic and for a while placed terrorism to the forefront of the governmental security and scientific research agendas. As money started flowing into terrorism research, the field became more popular, attracting significant numbers of researchers, and seeing new centres and institutes. This interest was somewhat short-lived and the end of first decade of millennium saw an exodus of less committed scholars to other fields as well as a increased consolidation of those remaining. 2 L. Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (Cambridge University Press 2013) 21. 3 See, e.g. Avishag Gordon, “Can terrorism become a scientific discipline? A diagnostic study” [Routledge] 3 Critical Studies on Terrorism.

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Partially this exodus could be attributed to the lack of spectacular attacks on the West at the period. The other part might be due to the great many issues plaguing the field. Studies identifying flaws and challenges for the study of terrorism appeared periodically, with some researchers exploring at length and in depth these different problems throughout the years. In “Terrorism studies’ literature review” Alex Schmid4 identified as one of the major issues an overload of publications with “terrorism” as a subject such that “Terrorism Studies are in danger of being snowed under”5 making it difficult to pick out the truly robust and potentially important pieces. Andrew Silke in his articles points to the lack of experienced and dedicated researchers as a problem for the advancement of the field noting that “a huge proportion of the literature is the work of fleeting visitors,”6 given that 80% of the publications on terrorism even before the 9/11 attacks were work of “transients”, researchers who publish one or two articles on the topic and disappear from the radars.7 Similar findings are discussed by Avishag Gordon.8 In addition, both the transient visitors and those who come to stay often have little qualification to be called “experts” with many serious scholars agonizing about the extreme lack of “barriers for entry” into the field.9 Michael Stohl argues that research in terrorism studies constitutes more wisdom than science, noting that “the assembled wisdom might be correct but the demarcation between wisdom and science that would allow proposing the necessary conjunctures, collecting the appropriate data and subjecting these conjectures and data to tests which might arguably demonstrate their falsifiability has not yet met the standards of social science epistemology”.10 In Alex Schmid’s research based on questionnaires submitted by the scholars working 4 5 6 7

8 9

10

A. Schmid, The Routledge Handbook of Terrorism Research (Routledge 2011). A. Schmid, The Routledge Handbook of Terrorism Research (Routledge 2011). Andrew Silke, “An introduction to terrorism research” in Andrew Silke (ed), Research on Terrorism: Trends, Achievements and Failures (Frank Cass 2004). A. Silke, “The Devil You Know: Continuing Problems with Research on Terrorism” 13 Terrorism and Political Violence 1; Andrew Silke, “The Road Less Travelled: Recent Trends in Terrorism Research” in Andrew Silke (ed), Research on Terrorism: Trends, Achievements and Failures (Routledge 2004). Avishag Gordon, “Transient and continuant authors in a research field: The case of terrorism” 72 Scientometrics. Lisa Stampnitzky’s research is a perfect window into this issue. See, L. Stampnitzky, Disciplining an Unruly Field: Terrorism Expert and Theories of Scientific/Intellectual Production (2011); Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (N2). Quoted in: M. Ranstorp, “Mapping terrorism studies after 9/11: an academic field of old problems and new prospects” in Critical Terrorism Studies A new research agenda ­(Routledge 2009) 14.

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on the topic also identifies such issues as the different biases that plague large sections of the work; lack of empirical data; little use of the available databases; methodologically weak works and lack of connection with the theories in other areas of social science.11 Crowning these is the lack of agreed definition which seems to indicate to a number of researchers the impossibility to consolidate the field.12 Admitting these concerns, some scholars remain quite optimistic. E.g. Schmid writes that “Looking back over four decades of terrorism research, one cannot fail to see that, next to much pretentious nonsense, a fairly solid body of consolidated knowledge has emerged. In fact, Terrorism Studies has never been in better shape than now.”13 A review article by Robert Pape14 shares this optimism, indicating the rising amount of fieldwork-based research, more independent scholarly production (as opposed to the government sponsored one), more rigorous methodologies that allow for “knowledge on terrorism to accumulate” and increased understanding of connection between different levels of analysis (strategic, individual and social). Andrew Silke also indicates a positive trend: according to him, the field was consolidating with the immediate urgency of the response to 9/11 attacks fading away and those who had only fleeting interest in the subject leaving it. There is also more detailed data analysis available and the more robust methodologies are used. Compared to previous era of study, more collaborative work takes place.15 Yet, this optimistic image did not seem to be convincing to at least a part of the academics. In the middle of the first decade of the new millennium, the populations as well as the scholars of the Western world were coming out of the stupor induced by the 9/11 attacks and the subsequent governmental actions to prevent more such attacks from happening. After Iraq war was officially over, the policies of the “war on terror” seemed to be more and more questionable. Abu Ghraib prisoner abuse scandal gave even more urgency to rethink both the policies and the largely hysterical attitudes around them. It was therefore at a very opportune moment that the cts project aiming to shed

11 A. Schmid, The Routledge Handbook of Terrorism Research (N 4), 460–471. 12 Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (N2); A. Schmid, The Routledge Handbook of Terrorism Research (N 4). 13 A. Schmid, The Routledge Handbook of Terrorism Research (N 4), 470. 14 R. Pape, Introduction: What is New About Research on Terrorism (2009). 15 A. Silke, “Contemporary terrorism studies: Issues in research” in Critical Terrorism Studies A new research agenda (Routledge 2009).

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light on such abuses of power in the name of counterterrorism and the deficiencies of academics to address these took off. The scholars working on the critical terrorism studies project came to the field of terrorism studies with “different approaches and traditions” yet with the  “shared set of concerns and commitments” which went beyond the call for “better scholarship” and entailed “a comprehensive intellectual orientation which speaks to all the important dimensions of research practice: ontology, epistemology, methodology, ethics and praxis”16 In what has been called Manifesto of cts, Jackson, Breen Smyth and Gunning outline the aims and concerns of the project. They start from e­ mphasizing the problems of the “traditional” field of terrorism studies, beginning with definition that is applied inconsistently and used “as a tool of delegitimization by political actors”,17 continuing with the problems of data, overreliance on secondary sources, studying the phenomenon out of context and uncritical acceptance of “new terrorism” thesis allowing to disregard the historical knowledge. They continue with the “general failure by many scholars to adopt a critically reflexive attitude which acknowledges the ontological instability of the terrorism label, remains cognisant of the effects of the cultural context on knowledge production in social science, is sensitive to the politics and consequences of labelling, and recognises the ethical challenges and consequences of conducting research on political violence.”18 This allows them to move on to the problems of “terrorism expertise” and the criticism of “embedded experts”,19 failure by researchers to “condemn particular counterterrorism policies such as targeted assassination, rendition, torture” etc.;20 “co-option of researchers into government-determined research programs” and, finally, “tainting of researchers with the suspicion that they may be working for the security services.”21 The cts, on the other hand, remaining faithful to intellectual pluralism and free choice of research traditions, maintains commitment to certain ontological positions: that terrorism is a “social fact rather than brute fact” and 16 17 18 19

20 21

R. Jackson, M.B. Smyth and J. Gunning, Critical Terrorism Studies. A new research agenda. (Routledge 2009) 216. Jackson, Smyth and Gunning, (N 16), 217. Jackson, Smyth and Gunning, (N 16), 220. Jackson, Smyth and Gunning, (N 16), 220. A notion advanced in the oft-quotes article of Burnett and Whyte, arguing that similarly to the “embedded journalists” in the Iraq war of 2003, the terrorism scholars co-opted into the governmental programs fail to see beyond the beautifully painted facades of terrorism-counterterrorism dynamics. Jackson, Smyth and Gunning, (N 16), 221. Jackson, Smyth and Gunning, (N 16), 221.

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its ­interpretation depends on a context;22 and that state should be an object of investigation.23 This also leads them to some normative commitments, especially to emancipation, “broadly defined”.24 Epistemological commitments include the acceptance of notion that no knowledge is neutral, that the scope of terrorism studies needs to be broadened to include not only direct state violence, but also the structural and even domestic violence in order to deexceptionalize terrorism;25 need to embed research in “broader social and political theory”26 and the demand for transparency in the researchers’ value positions. In addition, cts proclaims methodologically to value post-positivist and non-international relations based methods and approaches.27 The manifest also adds a wish to influence policy28 while maintaining “an overarching framework for critiquing existing research on terrorism, embedding terrorism research in broader social and political theory, and generating new kinds of questions and foci for study.”29 The authors of research agenda identified a number of pitfalls and challenges that the project would have to overcome in order to be successful. These relate to the challenges for integrity and peril for researcher by using the word “terrorism itself”,30 challenges that the studies would become too eclectic or too absorbed in the critique of existing scholarship that they will not be able to produce any new knowledge themselves;31 the overemphasis on critical ­approach of Frankfurt school which might act as a deterrent for some critically minded scholars;32 difficulties of balancing normative agenda of emancipation with the desire to be policy-relevant and thus the need to engage with the state authorities;33 and finally the risk of cts of “bifurcating the broader terrorism studies field into critical and orthodox intellectual ghettos which then refuse to engage with each other’s concerns or resort to open intellectual warfare.”34

22 23 24 25 26 27 28 29 30 31 32 33 34

Jackson, Smyth and Gunning, (N 16), 222. Jackson, Smyth and Gunning, (N 16), 223. Jackson, Smyth and Gunning, (N 16), 223. Jackson, Smyth and Gunning, (N 16), 224. Jackson, Smyth and Gunning, (N 16), 225. Jackson, Smyth nad Gunning, (N 16), 225. Jackson, Smyth and Gunning, (N 16), 226. Jackson, Smyth and Gunning, (N 16), 227. Jackson, Smyth and Gunning, (N 16), 232. Jackson, Smyth and Gunning, (N 16), 233. Jackson, Smyth and Gunning, (N 16), 234. Jackson, Smyth and Gunning, (N 16), 235. Jackson, Smyth and Gunning, (N 16), 234.

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Ten years on from this manifesto, the cts can be hailed for establishing a firm presence in the scholarly community, with the high impact journal ­Critical Studies on Terrorism, working group at the British International Studies Association (bisa) and a number of dedicated scholars around the world. Yet, some of the more sombre predictions of its supporters also came to pass. Richard Jackson, looking back at the ten years of development of cts distinguished its successes, such as the introduction of critical perspectives into teaching programs on terrorism and quite significant number of researchers dedicated to this approach. He also identified some failures of the cts35 and expressed regrets on the way the ideas of cts came to be articulated: “Although it was necessary to both differentiate cts and justify it in terms of the perceived weaknesses it was trying to address, the confrontational tone of cts criticisms could have been moderated to be more positive and redemptive”36 he wrote. In the same article, Jackson argues that the project was conceived from the beginning as a kind of “anti-expertise movement” and as such “sought to challenge and contest the very notion and basis of ‘terrorism expertise’ and the ‘terror expert’ itself”37 thus subjecting “orthodox terrorism studies and expertise to systematic critique of its problematics, concepts, procedures, practices and, most importantly, accepted knowledge.”38 In essence, there is nothing wrong with this idea. As it was mentioned, many serious terrorism scholars are exasperated at the lack of entry barriers to the field and lack of screening as to who can claim to be an expert in it. Yet, in their ambition to establish themselves, the cts project did not rise to an ­attack against the usual “false prophets” and self-proclaimed experts aiming instead for the complete reworking of the terrorism studies in order to “expose ­underlying power relations and denaturalize accompanying forms of takenfor-granted knowledge (particularly the (anti-) knowledge reproduced by terrorism experts).”39 To achieve that, however, what was needed first was to distinguish these forms of “orthodox knowledge” and those “experts” whose “anti-knowledge” needs to be exposed. And for that aim that a strawman of “orthodox” terrorism studies was built. 35

36 37 38 39

Richard Jackson, “On How to Be a Collective Intellectual – Critical Terrorism Studies (cts) and the Countering of Hegemonic Discourse” in Trine Villumsen Berling and Christian Bueger (ed), Security Expertise: Practises, Power and Responsibility (Routledge 2015). R. Jackson, “On How to Be a Collective Intellectual” (N 35), 197. R. Jackson, “On How to Be a Collective Intellectual” (N 35), 198. R. Jackson, “On How to Be a Collective Intellectual” (N 35), 193. R. Jackson, “On How to Be a Collective Intellectual” (N 35), 193.

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Building a Strawman. Who are the Orthodox?

Lisa Stampnitzky’s extensive research on terrorism experts has revealed terrorism expertise as a “liminal field”.40 It is a field that is being pulled in different directions, “an interstitial space, characterized by a constant dialectic between attempts to institutionalise it as a ‘science’ and forces that pull it back into relation with other fields (largely the state)”.41 In her research, terrorism studies appear not so much as a bounded field with the insiders zealously protecting its borders, but rather as a fluid space, with little regulation on who can become an expert, “no licensing body” for proper expertise and no agreement “about what constitutes useful knowledge.”42 It is a field plagued by the “rhetoric of failure”43 among those who want terrorism studies to become more like academic disciplines and only some optimism from those linked to the policy makers.44 This is not the picture we get from the cts assessment of terrorism scholars. A lot of initial writing of the cts uses “orthodox terrorism studies” as, simply, an undefined “Other” against which their own project’s identity is created. Who exactly they are and what exactly they say is treated as a kind of “common knowledge” which does not need to be spelled out or if it is spelled out often constitutes a sets of taken out of context quotes and specimens. In order not to follow the same footsteps, examples are in order here. Jason Franks bases his book45 and the subsequent article Rethinking the roots of terrorism on criticism of the “orthodox terrorism studies”. According to him, “Orthodox terrorism theory is essentially a state government explanation and understanding of terrorism and is employed to suit hegemonic, liberal or other agendas, while keeping a distinction firmly in place that does not allow for a creeping legitimation of terrorist tactics agendas”.46 Within these o­ rthodox studies the author only distinguishes three books, which are so important because the terrorism studies themselves are “a theoretically ­constructed

40 L. Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (N 2), 11. 41 L. Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (N 2), 3. 42 L. Stampnitzky, Disciplining Terror. How Experts invented “Terrorism” (N 2), 12–13. 43 Stampnitzky, Disciplining an Unruly Field: Terrorism Expert and Theories of Scientific/Intellectual Production, (N 9). 44 L. Stampnitzky, Disciplining an Unruly Field (N 9), 12–15. 45 Jason Franks, Rethinking the Roots of Terrorism (Palgrave Macmillan 2006). 46 Jason Franks, “Rethinking the Roots of Terrorism: Beyond Orthodox Terrorism Theory. A Critical Research Agenda” 23 Global Society.

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discourse created from key texts”47 these being Hoffman’s Inside Terrorism, Wilkinson’s Terrorism versus Democracy and Laqueur’s Age of Terrorism. This “discourse created from key texts”, according to the author, “does not engage in ‘root causes’ debate as it favours the illegal/illegitimate binary approach to explaining terrorism that mirrors the realist, state-centric understanding.”48 (p. 160) This is the “predominant” explanation of terrorism. To present a more balanced view some qualifications are introduced (probably because most of the terrorism studies are truly obsessed with “root causes” instead of ignoring them) and the category of “moderate terrorism theory” is introduced. This would be the same as the orthodox except that it does engage in a “‘root causes’ debate”.49 Here, the doyenne of terrorism studies, Martha Crenshaw, who is one of the most quoted people in the field appears to be “moderate” rather than “orthodox” and even though Ted Robert Gurr’s Why Men Rebel remains the most quoted book in the field it,50 as it does address directly the root causes, is also out of the “orthodoxy.” Jackson includes Gurr, Stohl and Crenshaw into the list of “notable scholars … who generated important knowledge in the early days of the field which challenged dominant assumptions but which was subsequently suppressed and became ‘unknown’ within the wider practices of the field”51 The three scholars he mentions appear as numbers 2, 6 and 10 respectively in the list of the top 42 core terrorism researchers based on the citation score.52 (Reid, Chen 2007, p. 48) How the knowledge they produced became “unknown” is not entirely clear. Partially this “unknowability” of their research can even be true, because of the already mentioned prevalence of one-timers in the field and the subsequent problem of lack of continuity in the terrorism research, its ­apparent a-historicity. These are, of course, issues that many “mainstream” scholars agonize about, yet, the claim itself that the work of Gurr, Stohl or Crenshaw is “unacknowledged, unreferenced and not systematically engaged

47 48 49 50 51 52

Jason Franks, “Rethinking the Roots of Terrorism: Beyond Orthodox Terrorism Theory” (N 46), 154. Jason Franks, “Rethinking the Roots of Terrorism: Beyond Orthodox Terrorism Theory” (N 46), 160. Jason Franks, “Rethinking the Roots of Terrorism: Beyond Orthodox Terrorism Theory” (N 46), 160. Edna F. Reid and Hsinchun Chen, “Mapping the contemporary terrorism research ­domain” 65 International Journal of Human Computer Studies, 48. Richard Jackson, “Unknown knowns: the subjugated knowledge of terrorism studies” 5 Critical Studies on Terrorism, 15. Reid and Chen (N 50), 48.

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with … in the core terrorism literature today and among its key scholars”53 (p. 14) hardly holds water. These arbitrary decisions as to whom to include and whom to exclude from the “orthodox” studies abound in other articles too. In Jaroen Gunning’s social movement theorists and psychologists are put aside from the ­“traditional” studies, even though they often appear next to the authors who would be ­considered archetypical “traditional” scholars, such as the aforementioned Crenshaw. Donatella Della Porta, one of the leading researchers in terrorism and social movements has contributed to the volume edited by Crenshaw (1995) T ­ errorism in Context54 as well as to Crelinsten and Schmid’s, another two prominent long-term terrorism researchers, Western Responses to terrorism55 and Peter Merkl’s 1986 Political violence and terror: Motives and motivations.56 As to psychologists, at least two – Jerrold Post and Franco Ferracuti appear alongside Crenshaw in the volume published by Walter Reich Origins of terrorism,57 Crenshaw herself has published a number of articles and calls for more psychological research, such as in her article “The Psychology of terrorism: An Agenda for the 21st century.”58 Finally, Silke’s work mentioned by Gunning is as acclaimed in the “traditional” terrorism studies field as it is in “critical”. In fact, while most proponents of the critical turn oppose the “positivist methodology”, Silke is often adamant in his calls for exactly such, positivist, terrorism ­studies, which create testable propositions, falsifiable hypotheses and even have (a rather old-fashioned) predictive power.59 Jackson argues that entire fields of knowledge, such as conflict studies and anthropological engagements with political violence remain knowledge “subjugated in favour of individual-oriented radicalization or pathological explanations of political violence.”60 This, again is a topic many a “mainstream” scholar have issues with – the image of terrorist as an insane person, which has

53 54 55 56 57 58 59 60

R. Jackson, “Unknown knowns: the subjugated knowledge of terrorism studies” (N 51), 14. Martha Crenshaw, Terrorism in context (Penn State Press 1995). Alex Peter Schmid and Ronald D Crelinsten, Western responses to terrorism (Psychology Press 1993). Peter H Merkl, Political violence and terror: motifs and motivations (Univ of California Press 1986). Walter Reich, Origins of terrorism: Psychologies, ideologies, theologies, states of mind (Woodrow Wilson Center Press 1998). Martha Crenshaw, “The psychology of terrorism: An agenda for the 21st century” 21 Political psychology. Silke, “An introduction to terrorism research” (N 6), 11. Jackson, “Unknown knowns” (N 51), 15.

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been proven wrong by all the most acclaimed psychologists in the field.61 To say, however, that the rest of the “knowledge”, the understanding of structural causes, for example, that create ground for terrorism has been “subjugated” is going somewhat too far. As an example, the Club de Madrid Agenda developed on the anniversary of the Madrid train bombings on 3/11/2004 was patronized by the former heads of state and other high officials and with the participation of the most prominent figures in the field. Their conclusions included numerous suggestions on how structural conditions impact on the development of terrorism and offered remedies for that.62 The current interest in radicalization can be better characterized as an intellectual fashion or trend than a kind of sinister attempt to “subjugate” some knowledge in favour of another. Clearer criteria of who is the most influential and who is “orthodox” is provided in the article of David Miller and Tom Mills and the project from which it stems. They use the following description of the “orthodox” scholars: ­“Orthodox terrorism experts are … ideologically committed and practically engaged in supporting Western state power.”63 They are part of “military-industrial-­ academic complex”64 and they do not challenge any part of the “dominant state narrative” which consists of “the idea that the United States and its allies are at war with the global organization called ‘al-Qaeda’, which along with affiliated groups is waging an essentially apolitical war against ‘Western values’ or the Western ‘way of life.’ In this narrative, the ‘terrorists’ are irrational – being motivated by hatred and religious dogmatism – implacable and unscrupulous. Given the nature and scale of the threat, the ‘terrorists’ must be met with aggressive military action abroad and repressive policies at home”65 They choose authors from the Social Science Citation Index between 1970 and 2007 to look for the most influential figures in the field and, as their focus is on the media influence of experts, they follow up on checking the media appearances of these experts. Yet, as it is the case with the more fluid descriptions of terror experts in other works, here, we also see authors cherry-picking what they need from the data.

61 62 63 64 65

See, e.g. Andrew Silke, Terrorists, victims and society: Psychological perspectives on terrorism and its consequences (John Wiley & Sons 2003). Club de Madrid, “Addressing the causes of terrorism” The Club de Madrid Series on Democracy and Terrorism volume i. David Miller and Tom Mills, “The terror experts and the mainstream media: the expert nexus and its dominance in the news media” 2 Critical Studies on Terrorism, 414–415. D. Miller and T. Mills, “The terror experts and the mainstream media” (N 63), 418. D. Miller and T. Mills, “The terror experts and the mainstream media” (N 63), 422.

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A look at the first three people on their list – Rohan Gunaratna, Noam Chomsky and Sidney Jones would be very hard to reconcile with the idea of all-encompassing network of terror experts who control what is being said on the media, support the “dominant state narrative” and work tirelessly on the expulsion of all the opposing voices from the field. Rohan Gunaratna is considered the most influential charlatan of the field whose scholarly integrity in questioned and a paradigmatic example of the lack of barriers for entry into the field.66 Noam Chomsky is the most vocal critic of the Western interventions and military adventures around the world, and Sydney Jones, researcher of the Indonesia-based Jemaah Islamiah is far from orthodox, being a vocal critic of repressive practices of the Indonesian state, which even earned her an expulsion from Indonesia as a “security threat” in 2004. Further down the list the experts observed seem to be as balanced out between supporters of the “orthodox” and “critical” positions. Paul Wilkinson, who is given as another prime-example of the orthodox67 (position 7) is followed right after with Jason Burke, a journalist, who has been one of the most prominent challengers of the Al-Qaeda-the-organization narrative. Also within the top-20, there is Magnus Ranstorp in position 18, who collaborates with the Critical studies on terrorism project and whose article appears in the book Critical Terrorism studies. There is a number of officials in the top-20, such as Avi Dichter, head of Shin Bet in place 9, Johnathan Evans, head of MI5 at the time of writing the original article, number 4, Clive Williams – head of the Australian security intelligence till 2002; number 19 – Irwin Cotler, the former Canadian minister of Justice. All in all, rather than leading to the impression of the coherent group, an “invisible college” bent on supporting the state power by any means, the list shows rather the lack of boundaries and barriers for entry into the field as well as diversity of sources from which the media picks up its informants. We see here journalists, government officials and academics with rather different approaches and views on the topic. The idea that there is no need to create more distinctions in the field and to try to consolidate it around the valuable works was advanced as a case against cts since its inception. John Horgan and Michael Boyle in the first issue of the Critical Studies on Terrorism as well as Leonard Weinberg and William Eubank

66 67

See, Magnus Ranstorp, “Mapping terrorism studies after 9/11” Critical terrorism studies: a new research agenda. Hardly fairly, a lot of Wilkinson’s work is taken out of context, see John Horgan and ­Michael J Boyle, “A case against ‘critical terrorism studies’” 1 Critical Studies on Terrorism.

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in the second issue have politely argued against the project.68 The latter have concentrated on the substantive matters of terrorism research and what the cts claimed was lacking in it by showing that many of the topics supposedly neglected were at the heart of terrorism studies. Horgan and Boyle focused more on the image of “orthodox” in the emerging project and have specifically argued that by trying to establish their case, the cts “creates an image of the field of study unrecognizable to scholars working within it”69 and create a “‘straw man’ of ‘Orthodox Terrorism Studies’ – that in some cases unfairly portrays almost 40 years of multi- and interdisciplinary research.”70 Discussing further the claims about “orthodox scholarship” the authors arrive at a rhetorical question: “If we agree on the problems associated with terrorism research, if we are united in our conception of what terrorism is and how it needs to be contextualized, and if we share many research goals, we might well ask then what is so different about ‘terrorism studies’ and cts?”71 What indeed? All their objections to the “ontological, epistemological and methodological” issues with the terrorism studies as such almost entirely disappear when we actually examine and compare the works of “critical” scholars with those who (might or might not) identify with the “mainstream” by choosing to publish in, say, Terrorism and political violence. What we see after such an investigation is that rigorous scholarship is similar in both fields.72 So if there 68 69 70 71 72

Leonard Weinberg and William Eubank, “Problems with the critical studies approach to the study of terrorism” 1 Critical Studies on Terrorism 185. Horgan J and Boyle MJ, “A case against ‘critical terrorism studies’” 1 Critical Studies on Terrorism, 51. Horgan J and Boyle MJ, (N 69), 52. Horgan J and Boyle MJ, (N 69), 59. To mention just a few examples, Verlena Erenbusch publishes widely on terrorism, questioning its definitional aspects in both philosophy journals. Her work on French revolutionary terror appears also in Critical Studies on Terrorism. (Verena Erlenbusch, “Terrorism and Revolutionary Violence: The Emergence of Terrorism in the French Revolution” 8 Critical Studies on Terrorism) In the “orthodox” Political violence and terrorism journal such an article would find a good company of, say, Lindsay Clutterbuck’s examination of the origins of terrorism tactics. (Lindsay Clutterbuck, “THE PROGENITORS OF TERRORISM:RUSSIAN REVOLUTIONARIES OR EXTREME IRISH REPUBLICANS?” ­[Routledge] 16 Terrorism and Political Violence). Literary scholarship-inspired articles, such as the one by Michael Wiesskopf (Michael Weisskopf, “Where Trotsky’s Train Comes From: A Literary Scholar’s View of a Revolutionary’s Biography” [Routledge] 25 Terrorism and Political Violence) find their place in the “orthodox” journal, but could as well be published in the Critical studies on Terrorism. Daniela Pisoiu, who collaborates extensively with the cts project, has based her book on a rather traditional rational choice methodology to assess the radicalization processes in Europe. (see, Daniela Pisoiu, Islamist

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is no clarity who is or who is not orthodox and if even the deep ontological, ­epistemological and methodological differences appear to be as dividing within as between the “mainstream” and the “critical” approaches,73 what remains as a dividing line is the normative dimension and the view of the role of expert and the ethics of expertise.

Ethics and Expertise

As could be seen in the various definitions that the cts provides of “orthodox” scholars in terrorism studies, these are the people that, to use yet another definition are “intimately connected – institutionally, financially, politically and ideologically – with a state hegemonic project”.74 The scholars themselves and their ethical stances are thus at the heart of the contention. The concern about ethics of expertise and how much a scientist can be involved with the government, is, again, not new. While the most known are controversies surrounding such discoveries as the atomic bomb, social sciences came to their own pressures with the increasing insurgency-counterinsurgency struggles around the world. Similarly, in the 1960s, the optimism regarding possibilities of science to predict and model behaviour led the American military to seek the support from social sciences for its ongoing or future counterinsurgency operations peaking in the Project Camelot. This project, envisioned in the mid-1960s was supposed to be the largest social science project in history and aimed to model and predict revolutionary dynamics in developing countries. The project was to have unclassified status and it managed to attract many prominent social scientists of the day. It was cancelled before even taking off when the scholars from other countries – Chilean academics and already famous conflict resolution researcher, Johan Galtung, who received

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radicalisation in Europe: an occupational change process (Routledge 2011)) The list could continue. The call for inclusion of different critical stances into the cts resulted in strong adherents of one of another approach (especially the post-structuralists and historical materialists) attacking the project as being either too little or too much discursive (Jackson, “On How to Be a Collective Intellectual – Critical Terrorism Studies (cts) and the Countering of Hegemonic Discourse” 199), just as the mainstream field often suffers from the academic biases of its scholars coming into it from different scientific disciplines. Richard Jackson, “The core commitments of critical terrorism studies” 6 European political science, 245.

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information about it, accused it of being part of imperialist expansion of the United States.75 The reaction to this endeavour could have been exaggerated and its sinister character overblown,76 yet the project started a heated debate and the reevaluation of the social sciences-government nexus on both ideological and financial-autonomy dimensions. In the post-war years up to the 1960s, social sciences in the us were struggling to gain recognition. While natural sciences enjoyed significant support both in the universities and from the government, the social sciences were treated as a kind of “second cousins”. To gain respectability they clung to both the ideals of positivism aiming to make social sciences resemble as much as possible the natural ones and thus arguing for objectivity, value neutrality, scholarly independence and autonomy. In the aftermath of the wwii, the military funding seemed to allow for all of these and in addition give the craved for recognition for the social sciences. For the older generation of scientists some of whom had direct experience of totalitarian regimes, the mutual support with the us government seemed an ethical thing enough.77 Yet the new generation of scholars, which was more impressed by the suffering of the peoples in the Third world and that saw the us policies contributing to this suffering, had a distinctly different opinion. It is in this political and intellectual atmosphere that the Project Camelot came under public scrutiny, even resulting in an enquiry about it at the Congress. The Congressional hearing and its report gave a very positive feedback to the project and argued that the military had done very well to support such studies. Yet, the reaction in the academia and later the military itself was much more varied. From the military side, the trend towards secrecy has accelerated and the cooperation with universities was given up upon in favour of recruiting their own analysts working on the projects behind the veil of secrecy. In and around academia, at the same time, the project started a discussion over the implications of cooperation with the government and especially military. There were fears that “social science had become (or was rapidly becoming) subservient to political power”78 or, somewhat more mildly, e­ xpressed 75 Stampnitzky, Disciplining Terror. How Experts invented “Terrorism”, 58. 76 George R Lucas, Anthropologists in arms: the ethics of military anthropology (Rowman & Littlefield 2009). 77 Murray L Wax, “Some issues and sources on ethics in anthropology” Handbook on Ethical Issues in Anthropology A Special Publication of the American Anthropological Association Internet http://wwwamericananthroorg/LearnAndTeach/Contentaspx?ItemNumbe r=12910&RDtoken=47485&userID=5089&navItemNumber=731 3. 78 Mark Solovey, “Project Camelot and the 1960s Epistemological Revolution Rethinking the Politics-patronage-social Science Nexus” 31 Social Studies of Science, 192.

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“concern about the harmful impact of military patronage on the critical ­capacities of social scientists.”79 The question of whether it was possible to maintain autonomy given the sources of funding for research became one of the most debated issues. Some disciplines in the social sciences, most notably, the American Anthropological Association issued a warning against such classified or dual-use research as, it seemed, was purported in the project, emphasizing that “The criteria of legitimate scientific research activities include full disclosure of sponsorship, of sources of funds, and of the purposes of the research, and public reporting of results, subject to the proper protection of the personal privacy of those studies or assisting in the research.”80 Thus one set of issues around the project centred on the finances and the question of whether funding from the military could either directly or indirectly influence research. Another concern came from the question of integrity and ideology. As so many people of high standing in the social sciences agreed to participate in Camelot81 and thought nothing wrong with it, questions came to be raised as to what made them ignore of the controversial and potentially nefarious aspects of the project. In short, whether they were duped fools or willing executioners of the American foreign policy. It was already mentioned here that the social scientists tried to create their metier in the image of natural sciences and therefore aimed to banish all expressions of values or ideologies from it. They thus saw the Camelot project and the measuring of “revolutionary potential” of the countries to be an interesting scientific endeavour, without much reference to the actual political implications. Yet, even on the most basic level, there were such implications. The project description did not disguise that the task at hand was not only about measuring of the countries’ revolutionary potential, but to work to minimise it. It thus clearly favoured social stability over concern for human needs and ­human rights and had an inherent “conservative bias.” As Mark Solovey writes, before the mid-1960s “Social scientists had proceeded with confidence, assuming that their studies offered an objective, rational and scientific (as opposed to a subjective, emotional and ideological) analysis of the major problems confronting developing nations.”82 These scholars then discussed how these problems 79 80 81

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Mark Solovey (N 78), 193. Quoted in Mark Solovey (N 78). List of consultants for the project include such names as Harry Eckstein, S.N. Eisenstadt, William Gamson, R.J. Rummel, Thomas Schelling and Neil Smelser to mention just a few. The top Ivy league universities were powerfully represented already in the initial list of consultants. M. Solovey, (N 78), 195.

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could be overcome with expert-guided development pursued within a framework of social stability (and thus these countries could avoid dangers of revolution and communist penetration). The uproar over Camelot helped to call into question this confidence, as critics began to emphasize that such scholarship was grounded in value-laden vision. Subsequently, the entire areas of research largely admired before, starting from developmental studies, but also sociology with the dominant functionalist explanations of society were under increased scrutiny. The end of 1960s and 1970s saw new theoretical paradigms and methodologies emerging in these areas and it could even be argued that the Camelot controversy paved way for the establishment of interpretative, hermeneutic ontology in the social sciences with its emphasis on the inability of the scholar to extract herself from the social world she inhabits and studies. It also led to a deeper questioning of the moral and ethical aspects of each research and the role of the scientist as such in the society. Camelot shone the light, it was claimed, on the image of “the scholar as a handmaiden to power”, who is “well inside the corridors of power” yet not as a master, but only as a servant, and “advisor to those who had real power.” And as this “role did not encourage debate over fundamental principles, social scientists often took a managerial, technocratic view of social problems”83 often, on the way, forgetting about the real world implications of their suggested solutions.84 Discussing this controversy in 1971, Gene M. Lyons summarized the position of those sceptical or outright hostile to further engagement of social scientists and policymakers writ large where they argue that: … social scientists may not have been too little, but too much involved in official policymaking; that too often social scientists have permitted research based on too little information and too little theory to be exploited without question by policy makers for the latter’s own political purposes; that all of science, but most especially social science is inextricably wound up with social values and cannot be intellectually free under the terms of the “service” function which has priority in existing government-science relations; that the consequence of advocating “­value-disinterested” (if not “value-free”) social science is to support present political balance against pressures for change; and that, in a number 83 84

M. Solovey (N 78), 196. It should be noted that in the debate about the state of terrorism research, one of the major criticisms to the existing scholarly approaches is that they are interested primarily in “technocratic”, “problem-solving” methods of analysis.

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of cases, social scientists share ideological predilections reflected in the present structure of authority […] and deliberately use their professional capacity for its perpetuation.85 The author of the article, focusing on the reports that the National Academy of Sciences, National Research Council and the Social Science Research ­Council have delivered in the end of 1960s and which dealt with the relations between the experts, academia and the policy makers, argued that the described above position is a kind of radical position on the issue of “social role of social knowledge.”86 As Lyons continues to explain, “the reports all emphasize the need for developing links between research and government in order to contribute to intelligent public policy while the dissenters emphasize the need for dissociating research from public authority in order to contribute to social criticism.”87 Those who believed in the engagement with the policy makers also linked knowledge to power, but, as Carol Weiss writes, “They assumed that adding to the stock of knowledge about social conditions, causes of social problems, and strategies effective for their amelioration would have a beneficent effect on the direction of public policy.”88 What this quote and this sentiment reveals is an attitude towards policy makers as people who are actually interested in solving social problems and thus proclaiming the scientists’ privilege to contribute to these solutions. This notion of privilege has gained even more credence once the governments became disillusioned by the scientific “solutions” to the great issues.89 Adverse effects of some scientific solutions even more strengthened this feeling of disillusionment with the progressive power of science. Many social scientists in return were disappointed by the policy makers’ seeming lack of interest in their research, though they could remain placated 85 86 87 88

89

Gene Lyons, “The social science study groups” in Irving Horowitz (ed), The use and abuse of social science (Transaction books 1971), 145–146. Gene Lyons (N 85), 148. Gene Lyons (N 85), 149. Carol Weiss, “Ideology, interests and information. The basis for policy decisions” in Daniel Callahan and Bruce Jennings (eds), Ethics, the Social Sciences and Policy Analysis (Plenum Press 1983), 214. Since already 1960s, the belief that science whether natural or social had all the answers to the world’s ills was being shattered. In physical sciences this was due largely to the realization that scientific developments lead not only to the positive improvements on people’s lives, but can have many unintended consequences, especially for the environment. The fall from grace of social sciences can be linked to the lack of progress to get the societies out of poverty and destitution in the newly independent third world countries.

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by the ­observation that while concrete pieces of research may not have the direct ­effect, the ideas born out of social science research had influence on the development of policies.90 These early discussions on the role of scientist in the government corridors often try to look for a middle way solution. The chasm between the positions of those who see value in engaging with the state and those opposing it does not need to be unbridgeable as Lyons’ discussion shows. He argues that “What both [those advocating engaging with the policy makers and those bent of social criticism] require, however, is an independent base which will permit social science, on the one hand, to contribute to public policies without being distorted and, on the other, to provide criticism of public policies without being censored. Professional ethics, rigorous methods of research, open publication, all contribute to this independence which both service and criticism demand.”91 Jeanne Gullemin and Irving Horowitz in their discussion of social research and political advocacy argue similarly that no matter what the scientist chooses, whether to concentrate on the promotion of rights of certain social groups, to help policymakers address some ills of society or to maintain distance from social engagement, what matters is the quality of research. “Ideology may remain a stimulus and a prod to good research as well as poor research, but the test of the quality of research remains the experiential context and evidential base of ethnography and inquiry in general. In short, shared professional identities could and should keep differently inclined researchers together.”92 The concerns of cts echo these older developments. As it was mentioned, the position of the scholar in the corridors of power is one of the greatest concerns for the cts. Yet, they seem to assume that only the critical scholars had something to learn from such debates and that the rest of the terrorism scholars are stuck in some pre-camelotian era not able or not willing to see the dangers of engagement with the state. In this vision, it is only the critical scholars who understand that all knowledge is power (following Foucault) and only they aim to rebel against the “a widely held belief that one of the prescribed roles of academics is to assist the state in its regulation and management of society.” (Jackson 2016, p. 120) While often charging the “orthodox” terrorism scholars with ignoring history, in this respect the cts seems to commit a similar sin by not placing its 90 91 92

Carol Weiss (N 88), 219. See also, Daniel Béland and Robert Henry Cox, Ideas and politics in social science research (Oxford University Press 2010). Gene Lyons (N 85), 149. Jeanne Guillemin and Irving Louis Horowitz, “Social research and political advocacy” in Ethics, The Social Sciences, and Policy Analysis (Springer 1983).

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challenge in the larger debate on the role and ethics of the scientist, which, in the years that followed Camelot has resulted in a rather nuanced understanding of the position of the scholar and the acceptability or unacceptability of the researcher’s connection with the governmental funding. The same way, a lot can be learned from the discussions of another issue that became important in the Camelotian era – that of the ideology of scientific neutrality that might result in a status-quo bias. These issues cts touches upon, yet, without putting them into perspective. Yet, the question of how much engagement with the state is necessary or advisable is one of the major topics of discussion for the cts. In his 2015 article, Richard Jackson sees as one of the failures of cts its lack of engagement with policy-makers and practitioners due in part to an inbuilt suspicion towards compromise with power’.93 In 2016, however, Jackson argued forcefully that: In such conditions, where counterterrorism causes widespread suffering and is an obstacle to progressive change and social justice, it can be argued that working directly with state counterterrorism is akin to medical professionals who collaborate with torturers in an effort to improve prisoner welfare; while there may be some benefit to individual prisoners who perhaps suffer less as a consequence, the broader impact of their participation is the perpetuation and legitimization of the overall system of torture, and their involvement does nothing to fundamentally change an inherently immoral set of practices.94 The critical scholar should thus not seek to engage with the state, but “embrace our ‘outside theorising’, ‘anti-hegemonic’ identity, recognizing that in truth we have no voice in the structures of power anyway, nor are we likely to ever have any real influence over the way state power operates.”95 This extends from the actual influence in government circles to influence in academia as the knowledge that the critical scholars produce come to be “masked”, “buried”, “subjugated”, “excluded” by the dominant “orthodox.”96 If these latter are not seen as sinister enough, another article states that, “terrorism studies actually provides

93 94 95 96

R. Jackson, “On How to Be a Collective Intellectual” (N 35), 198. Richard Jackson, “To be or not to be policy relevant? Power, emancipation and resistance in cts research” 9 Critical Studies on Terrorism, 122. Richard Jackson, “To be or not to be policy relevant?” (N 93), 124. R. Jackson, “Unknown knowns” (N 51).

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an authoritative judgement about who may legitimately be killed, tortured, rendered or incarcerated by the state in the name of counter-terrorism.”97 Yet, as David Martin Jones and M.L.R. Smith convincingly argue,98 the critical approaches are hardly marginalized and excluded in the Western academia and the fact that the leading figures in the cts hold comfortable university positions. At the same time, accusing the “regular” terrorism scholars of being behind the decisions to kill, torture and incarcerate can hardly be conducive to a fruitful dialogue between the two engaged parties. Such strong accusations combined with vague notions of who exactly is accused, prevent a lot of engagement that might be useful for both sides. It must be admitted that Jackson’s is one of the more radical positions in cts. Other significant members of the project, such as Jaroen Gunning and Harmonie Toros are more inclined to find accommodation with the policy makers and have their voices heard. For them, too, it is difficult to deal with the tension inherent in a desire to be heard and the need, implied by the critical theory to be emancipatory and anti-hegemonic. Toros has a particularly strong rebuke to Jackson’s position in the answer to his article, stating that when she has to self-censor her talks (to the officials in nato courses) and to engage with the state counterinsurgency apparatus she is uncomfortable: But I am increasingly suspicious of comfort and believe that discomfort is particularly effective in keeping me honest. So I ask Richard Jackson, is it not a little too comfortable to choose to only spend time with those we can more easily identify with, the disenfranchised, the tortured, the marginalized? Is the challenge not precisely that of recognizing the humanity and potential for transformation of all actors, including the top 1 percent, the marginalisers, the torturers?99 Gunning, too, argues for the engagement with the policy makers, as the best way to actually advance the emancipatory agenda of the cts and emphasizes that “just because a piece of research comes from rand does not invalidate it.”100 97 98

R. Jackson, “The core commitments of critical terrorism studies” (N 74), 249. David Martin Jones and MLR Smith, “Terrorology and methodology: a reply to Dixit and Stump” 34 Studies in Conflict & Terrorism, 513. 99 Harmonie Toros, “Dialogue, praxis and the state: a response to Richard Jackson” 9 Critical Studies on Terrorism, 130. 100 Jeroen Gunning, “Babies and bathwaters: reflecting on the pitfalls of critical terrorism studies” 6 European political science, 240.

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Conclusions

On 26 July 1794, amidst high tensions over the course revolution was supposed to take and especially with the view of the so-called Great terror, Robespierre rose to deliver a speech in the Convention. He claimed that enemies of the Republic were everywhere. Named a few names, but let almost everybody feel threatened. This time, even those unwilling to act before, stood up for a challenge and, fearing for their lives, declared Robespierre to be a tyrant and ordered him and his closest allies arrested. cts’s coming out for the complete overhaul of the terrorism studies resem­ bles somewhat this sad story. By naming a few only and dishing out wide accusations against “orthodox” terrorism studies, the cts made many those working in the field feel under attack and alienated even some of the people who might have been sympathetic if not to all of its goals, at least to a part of its objectives. This is unfortunate. Critical terrorism studies shone the torchlight on some of the important cobwebby corners of terrorism studies: the state terrorist violence; the bottom-up perspective of “what it feels like” to be on the receiving end of the counter-terrorist policies; the role of discourse in making the terrorist challenge a political issue. These are all issues that should be explored and significantly more in depth than they are now. Diverse approaches in critical studies could expand our understanding of terrorism, the authors writing in Critical Studies on Terrorism journal have definitely many useful and insightful comments on the phenomenon to make and many of their contributions are a worthy reading for anyone interested in the phenomenon. Yet, the cts could do well to abandon the desire to create a kind of Frankenstein monster out of the “traditional” studies of terrorism and acknowledge that majority of the scholars are not in this field because of some sinister motives or a particular bent on serving the robespierres of the times. In fact, both groups aim for the increased understanding of the phenomenon even if looking at it from somewhat different angles. These angles themselves may well be irreconcilable as the different social-scientific approaches sometimes are. The scholars themselves could be divided on whether or not to engage with the policy makers. Yet, the high handed accusations and questions as to moral integrity of vaguely defined groups, such as “orthodox” or the “critical” scholars do not lead to such a fruitful advance of the studies at all. It thus remains for the moderate terrorism scholars to keep the golden middle between those radical critics who think that all that state counter-terrorism policy is the real terrorism and that any understanding of terrorism that is advanced by the terrorism experts is thus suspect as a tool of this policy; and those who think that states can do nothing wrong and that so-called terrorists

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are just madmen bent on death and destruction. It is also up to us, as moderate scholars, to note that we share identity of scholars and thus are inherently interested in advancing our understanding of social phenomena such as terrorism. Even if we do not agree on many different ways of how this knowledge should come about.

Chapter 5

Should Collateral Damage be Considered Morally Acceptable when Using Armed Drones? Michaël Dewyn In 2001, The United States declared a War on Terror and invaded Afghanistan.1 Simultaneously, with wars in Afghanistan and Iraq, the media reported drone strikes in Pakistan, Afghanistan, Yemen and Somalia allegedly eliminating terrorists.2 In regions like Pakistan where no war is in progress but where it is no longer possible to speak of peacetime – we shall call them grey zones between war and peace – drone strikes against alleged terrorists take place on a regular basis, causing a great deal of collateral damage, including the death of innocent civilians. The research question of this article is whether collateral damage – in the form of injuring or killing innocent civilians – caused by the use of armed drones, should be seen as morally permissible. First, this article will analyse the issues surrounding drone strikes causing collateral damage. Secondly, peacetime principles related to collateral damage will be discussed. Thirdly, the relevant principles of the “just war theory” concerning collateral damage will be analysed, and more specifically a doctrine relevant to the principle of discrimination, namely the doctrine of double effect. Finally, these principles will be applied to the ethical problems of collateral damage as they relate to drone strikes in the grey zone between war and peace.

Drone Strikes Causing Systematic Collateral Damage

At first sight, drones seem to have many advantages. They can be used to do the “3 Ds”: dull, dirty and dangerous work.3 The surveillance drone has the 1 Jeremy Sherlick, Greg Bruno, “u.s. War in Afghanistan” Council on Foreign Relations (New York, 19 June 2013) . 2 Cora Currier, “Everything we know so far about drone strikes” ProPublica (New York, 11 January 2013) . 3 Dean Irvine, “Doing military’s dangerous, dull and dirty work” cnn (Georgia, 16 February 2012) .

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_006

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possibility of staying in aloft unseen for long periods of time above the target, to observe it. Human Rights Watch states that high-resolution cameras can be used to guide missiles from armed drones toward any target desired.4 Nevertheless, in these grey zones between war and peace,5 many incidents with armed drones involving collateral damage take place. According to Pakistan’s Bureau of Investigative Journalism, more than 400 drone strikes have taken place in Pakistan since 2004, with fewer than 4% of those killed having been identified as named members of al-Qaeda. According to other sources, the amount of killed terrorists due to drone strikes in Pakistan between 2004 and 2012 is estimated to be 2% of the total amount of casualties.6 The uk-based human rights group Reprieve calculated that it takes the equivalent of about 28 innocent lives to neutralize a single terrorist leader and often multiple drone strikes.7 In October 2015, a whistle-blower provided the American journal The Intercept with secret documents detailing the inner workings of us drone attacks in Afghanistan, Yemen and Somalia. The documents revealed that approximately 90 percent of the persons killed by drones in these regions were innocent civilians.8 While the media is an easy source for statistics, such should be treated with caution. People should pay close attention for organisations that use and manipulate statistics for their own political agenda. Besides, it is not always easy to find out the truth, which makes manipulation possible. In countries like Pakistan, there are no birth registers and few emergency services that record deaths; moreover, bodies are usually buried within 24 hours of death, well before an official research team arrives to investigate properly.9 However, much secrecy exists surrounding the official United States number of casualties 4 “Precisely wrong: Gaza civilians killed by Israeli drone-launched missiles” Human Rights Watch (2009) . 5 The characteristics of these grey zones between war and peace are discussed in the fourth part of this article. 6 Jack Serle, “Drone strikes in Pakistan: Civilian casualties are inevitable, and the u.s. appears willing to accept them” The Bureau of Investigative Journalism (London, 16 October 2014) . 7 “It takes 28 civilian lives to kill a single terrorist leader – uk human rights group” rt (London, 25 November 2014) . 8 “The Drone Papers” The Intercept (New York City, 2015) . 9 Lode Vanoost, “Drones en terrorisme, zoek de verschillen” De Wereld Morgen (­Brussel, 27 September  2012)  .

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disclosed to the public. The American people may not be aware of the actual number of innocent civilians killed by drone strikes in American operations to date.10 Finally, the question should be asked who exactly should be considered innocent civilians, and who are just targets. By considering every man killed between 15 and 66 years old, who happens to be in the vicinity of a targeted terrorist, to also be a terrorist, you can drastically decrease the figures for collateral damage.11 How does one explain these enormous collateral damage statistics? In traditional wars, like the two World Wars, enemy soldiers usually wore uniforms with clear insignia, which made them easy to identify. In such situations, a soldier wearing a uniform lost his right not to be attacked. However, as more and more conflicts are being fought in cities where enemies do not usually wear uniforms, deliberately embedding themselves amongst civilian populations whereby they become human shields, distinguishing between those who can and cannot be attacked has become very difficult.12 This creates very difficult situations for the use of armed drones because their missiles can be directed to a precise location, but the missiles have an impact of several square meters.13 Consequently, in these situations, armed drones systematically cause collateral damage. Risk reduction has always been an important component of warfare. With the invention of long-range weapons, such as artillery, fighter-bombers and the Tomahawk missile, the risks faced by the soldier on the battlefield have already been greatly reduced. However, drone warfare takes this an enormous step further, as military deployment near the battlefield is no longer an operational requirement. Drones can be launched and operated from safe places – even neighbouring countries – that are hundreds of kilometres away from their targets. For instance, the United States has been using an airfield in Saudi Arabia as a base from which to launch unmanned aerial vehicles for conducting

10 11

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Jon Queally, “Senate Agrees: us People Can’t Know Overseas Drone Death Toll” CommonDreams (Portland, 29 April 2014) . Jo Becker, Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will” The New York Times (New York City, 29 May 2012) . Mark Thompson, “The Taliban’s Low-Tech Defense Against u.s. Drones” Time (Washington, 29 April 2009) . Joakim Kasper, Oestergaard Balle, “About the Predator and Reaper” Aeroweb (Newtown, 27 June 2016) .

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surveillance and combat missions in Yemen.14 Moreover, people are no longer sent on the ground anymore in these dangerous states to gather intelligence. The physical risks when using armed drones are thus reduced to zero, leading to the transfer of risk to innocent civilians. Unreliable and incomplete intelligence is often the cause of incidents with high collateral damage.15 The difficulty of gathering intelligence depends, amongst other things, on the kind of war or conflict that is occurring. Analysing whether a person is a member of a terrorist organisation can be an enormous challenge for intelligence services, considering the organisation’s deliberate intermingling between civilians without uniforms. However, in many cases, a lack of boots on the ground means that there are simply no operatives physically present to gather intelligence. Intelligence specialists indicate that it would be better if surveillance drones were not the only sources of intelligence when it comes to verifying a target because intelligence gathered by these means remains subject to a high degree of uncertainty. Generally, these specialists pay a lot more attention to human intelligence (HUMINT), which will usually mean that the information collected is significantly more reliable.16 In Afghanistan, for example, in regions where troops and intelligence agents are indeed in place, ground commanders can bring important context 14

15

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Micah Zenko and Emma Welsh, “Mapping the launch pads for Obama’s secret wars.” Foreign Policy ( Washington, 29 May 2012) . Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian (London, 24 November 2014) . See also: “us lacks intelligence to continue waging indiscriminate drone warfare in Yemen” rt (30 January 2015) . Matt Schiavenza, “Drones and the Myth of Precision Civilian casualties are inevitable, and the u.s. appears willing to accept them.” The Atlantic (Washington, 24 April 2015) . Marina Petrova, “The Drone Paradigm: Surgical Precision or Intelligence Mishaps” Future Foreign Policy (London, 3 June 2015) . See also: Warren Strobel and Mark Hosenball, “Hostage locations difficult to track – and may be getting harder” Reuters (London, 24 April 2015) . “Former High-Level nsa Official: Drone Strikes by Metadata Alone ‘­Undisciplined Slaughter’” Washingtonsblog (11 February 2014) .

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to pictures gathered from the sky. When an intelligence analyst has a question, he or she can make a call to a colleague on the ground for clarification. An intelligence analyst says: “Without a commander on the ground, that puts that responsibility on us to be able to take every piece of data and make it make sense to the supporting commander. That is a harder challenge to do certain targets in that environment”.17 Bellamy describes a famous example of an operation where collateral damage occurred because of unreliable intelligence: the bombing of a wedding in Afghanistan in 2002. Initially, the United States indicated that the gathering in question was a reunion of Taliban members; however, following scrutiny by the media, the government was forced to admit that it was actually a wedding party and that the strike was authorized on the basis of faulty intelligence supplied by Afghans.18 Invariably, many operations depend on unreliable intelligence.19 Another consequence of such dependence on intelligence coming solely from surveillance drones is that the intelligence is incomplete: Because analysing images is a time-consuming activity, there is insufficient time to arrive at a complete intelligence picture. People present on the ground often need less time to gain insight to the situation. One example of such incomplete intelligence is a drone strike that resulted in collateral damage in Afghanistan in 2010. In this case, the intelligence indicated that the proposed target was a civilian convoy, but this information was overlooked by the drone operators, who were at the time under pressure and overloaded with information.20 A second example of incomplete intelligence is more recent. A United States 17

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Marcus Weisgerber, “A Look Inside a Secret us Air Force Intelligence Center” Defense One (Washington, 18 November 2014) . Alex J Bellamy, “Is the war on terror just?” (2005) 19(3) International Relations 275. See also: Luke Harding, “No us apology over wedding bombing” The Guardian (London, 3 July 2002) . Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian . See also: “us lacks intelligence to continue waging indiscriminate drone warfare in Yemen” rt (30 January 2015) . Matt Schiavenza, “Drones and the Myth of Precision Civilian casualties are inevitable, and the u.s. appears willing to accept them.” The Atlantic (Washington, 24 April 2015) . Jean-Baptiste Jeangène Vilmer, “Légalité et légitimité des drones armés” (2013) 3 Politique étrangère 119 .

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drone killed an American and an Italian hostage in an attack on an al Qaeda compound in Pakistan in January 2015. According to u.s. officials and lawmakers, the intelligence that underpinned the drone strike turned out to have been tragically incomplete.21 These are only three out of many cases.22

Peacetime and Collateral Damage

Principles Relating to Collateral Damage during Peacetime The use of violence during peacetime is only possible in exceptional circumstances, to protect oneself or a third party. Three conditions should be respected during defence actions: the action must be necessary, proportionate and targeted against an imminent threat.23 Suppose that the police have to end a hostage situation by neutralizing a hostage-taker. In this case, in order to neutralize the hostage-taker, the police will need to enter a room full of innocent civilians. When using force during peacetime, officers must carefully take into account the consequences of their actions, including any potential risks to civilians. The right to life is too valuable for that during peacetime. The police can sometimes use alternatives to stop the criminals, like rubber bullets. This may reduce the likelihood of collateral damage occurring. In very rare cases, collateral damage may be acceptable, such as in a national security context where an airplane that has been hijacked by terrorists is heading toward a populated area and is shot down.24

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23 24

See also: WJ Editors, “In New Military, Data Overload Can Be Deadly” Small Wars Journal (Maryland, 17 January 2011) . Adam Entous, Damian Paletta, Felicia Schwartz, “American, Italian Hostages Killed in cia Drone Strike in January” The Wall Street Journal (New York City, 23 April 2015) . See also: Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian (London, 24 November 2014) . “It takes 28 civilian lives to kill a single terrorist leader – uk human rights group” rt (London, 25 November 2014) . See also: “Only 84 of 2,379 us drone attacks victims in Pakistan confirmed Al-Qaeda militants – report” rt (London, 18 October 2014) . David Rodin, War and Self-Defense (1th edn, Clarendon Press 2002) 40. Ben Jones and John M. Parrish, “Drones and dirty hands” 14 .

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Police officers are sometimes exposed to a high level of threat. How much personal risk can and should a police officer take during peacetime? Police officers, in contrast to soldiers participating in hostilities, normally retain their right not to be killed. When police officers exceptionally and voluntarily risk their lives in order to protect the lives of civilians, this type of risk-taking must rather be considered a “supererogatory” act. In the aftermath of the terrorist attacks in France (2015) and Belgium (2016), many countries introduced a state of emergency, whereby certain human rights were curtailed and police were given more power. The question arises whether the police may cause collateral damage out of necessity when confronted with people using very unjust methods, like terrorists. The proportionality principle states with regards to using violence: the more important your objective, the more harm you may cause. However, this is not in agreement with the principle that forbids any killing of innocent civilians intentionally during peacetime. In the Bataclan, the concert hall targeted during the Paris Attacks of November 2015, people were killed by the terrorists quickly and at random. Dynamic responses from police services were needed: when innocent people are dying, swift intervention is needed in order to save as many lives as possible. There is no time to get a clear picture of the situation or to try to negotiate. What matters most at that moment of intervention is that collateral damage is kept to a minimum and the agents involved are not exposed to unreasonable levels of risk. The doctrine of double effect is applicable here: You have the intention to kill the terrorists, who are not afraid of killing people, while entering the building with the side-effect of an unintentional but readily foreseeable killing of innocent civilians.25 We must emphasize that, during peacetime, this doctrine can only be used in these kinds of exceptional circumstances. Importance of Alternatives On the one hand, the lives of civilians should never be endangered. On the other, police officers normally should not have to risk their lives either. Consequently, dangerous situations like hostage situations are best avoided if it is possible. For example, intelligence gathering in order to arrest the suspect person can prevent hostage situations. A recent idea in the fight against terrorism is the pentito for terrorists, which offers terrorists the possibility of receiving a new identity in exchange for crucial information about a terrorist network.26 25 26

The doctrine of double effect is explained in greater detail in the third part. Mark Eeckhaut, “Salah Abdeslam had de perfecte spijtoptant kunnen zijn” De Standaard (Groot-Bijgaarden, 20 February 2016) .

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This could lead to faster dismantling of terrorist organisations. Interesting is a project ongoing in the u.s. where the government is currently trying to prevent school shootings. The idea is that since school shooters are predictable, they are also detectable, which means that people should keep an eye out for potential warning signs and be vigilant.27 Local good will is crucial when using this method. Beyond the standard methods employed by the country’s intelligence services, the government is trying to make citizens aware and to encourage them to watch out for potential threats, since it knows that the police cannot detect everything that is suspicious on their own. This approach also seems to work, at least in part, for detecting terrorists. Unfortunately, our societies are characterized by a lack of social control. It is not always possible to monitor everyone’s habits. When the hostage-taking can no longer be avoided, the alternative to lethal action is negotiations. These could be helpful once the criminal action is going on, in order to try to convince the hostage-taker to end the hostage situation.

War and Collateral Damage

Introduction to the Just War Theory The just war theory has existed for more than 2000 years and has been developed by many thinkers, including ancient Greek philosophers and Christian theologians. The theory fits in a category with many other philosophies on warfare. In short, pacifism holds that war should always be avoided. Militarism holds that war is inherently good and can even improve cohesion in society. Realists believe that war should be fought for one’s own purpose, when one’s own interests are at stake. On the contrary, the just war theory prefers peaceful relations between states, but admits that sometimes the use of force is justified; for instance, to defend against an aggressor who has no just cause to invade your country.28 The American philosopher Michael Walzer reactualized this theory in the seventies with his book Just and Unjust Wars. The main objective of the just war theory is to offer guidance for dealing with actual wars and conflicts. The theory, which has an important normative component, speculates about when states are justified in waging war – jus ad bellum – and

27 28

“Preventing School Shootings” . Carl Ceulemans, Over oorlog en ethiek: de traditie van de rechtvaardige oorlog in theorie en praktijk (1th edn, Garant 2011) 24–29.

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in what ways states should behave during the prosecution of a war – jus in bello.29 Prior to the First and Second World Wars, national sovereignty was very important in international politics. States themselves decided when to wage war and when not to. The devastating nature of both World Wars made it abundantly clear that the Westphalian system, in which sovereign states enjoyed a quasi-limitless “compétence de guerre”, was no longer tenable. From that time onward, the right to resort to military violence was seriously curtailed. Article 51 of the United Nations Charter stated that only force used in self-defence against an ongoing attack was permissible. During this time, the concept of jus ad bellum was introduced in international law.30 The utility of jus in bello or fighting limited wars is twofold. It concerns limiting the total amount of suffering, but also keeping the possibility open for states to normalize their post-conflict relations. To be avoided is frustrating a party, because he thinks the end result seems unjust, or because the military action was unnecessarily cruel and in contradiction with the rules of war.31 As a consequence, one of the main principles of jus in bello is the moral equality of combatants, which gives all of the different parties in the war the same rights and duties, regardless the justness of their cause to go to war.32 In the last couple of years the jus post bellum has been developed. Here, the theory speculates about the post-war period and principles applicable to it.33 This article will henceforth discuss jus in bello and the issues related to collateral damage.

The Just War Theory and Collateral Damage

The Non-absolute Discrimination Principle Before determining whether the just war theory permits collateral damage, it would be just as good to consider whether the use of an armed drone is itself in conflict with the principles of jus in bello and more specifically, the

29

Michael Walzer, Just and Unjust Wars: a moral argument with historical illustrations (1th edn, Basic Books 1977) 21. 30 Ceulemans (n 28) 122–123. 31 Walzer, Just and Unjust Wars (n 29) 132–133. 32 Walzer, Just and Unjust Wars (n 29) 36–37. 33 Brian Orend, “Jus post bellum: The perspective of a just-war theorist.” (2007) 20(3) Leiden Journal of International Law 571.

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discrimination principle, which states: once soldiers put on their uniforms, they can be attacked at any time by the other party. Unlike soldiers, innocent civilians have done nothing wrong to deserve losing their right to not be attacked.34 According to the just war theory, weapons or methods that are mala in se are “bad in themselves”, meaning that they should never be used on the battlefield due to their non-discriminatory and destructive effects; examples of this include genocide, rape and the use of biological, nuclear and chemical weapons or mines.35 Other examples are cluster munitions and barrel bombs. None of these effects are applicable to armed drones. As previously stated, drones can be used as very precise weapons, an armed drone is thus not necessarily a mala in se weapon. Even during peacetime it does not seem impossible that the police will at some point use armed drones to neutralise threats. Suppose you use a drone to save the life of an innocent person in a situation where the police are unable to be physically present. The weapon in itself does not change the ethics of the situation, assuming it reaches its target without resulting in collateral damage. According to the just war theory, the fact that the level of risk is diminished for only one of the parties involved in a conflict – due to the fact that they are using drones – does not necessarily mean that this is immoral, as long as the use of these drones is consistent with the principles of jus in bello and the possibility remains for stable situation afterwards. However, Walzer states that risk diminishment and risk transfers are not compatible. An ethically responsible person, a soldier being no exception to this rule, ought not to save his own life if it implies killing innocent civilians. Soldiers must ensure that civilians are not affected by the atrocities of war, even if the soldiers have to take additional risks.36 According to Bellamy, who agrees with Walzer, when non-combatants are only protected as long as the lives of combatants are not in danger, this is a morally dubious position because it gives more weight to the lives of combatants than to non-combatants.37 Suppose a party has intentionally killed the civilians of their opponent, should the opponent then be morally permitted to react by also killing their adversary’s civilians? The motivation could be to anticipate this kind of cruel behaviour in the future. This is often the reason for reprisals. Walzer states: “The helplessness of the victims rules them out as objects of military attack, and their non-involvement in criminal activity rules them out as objects of 34 Exceptions exist like civilians actively participating in hostilities. 35 Vilmer (n 20) 120. 36 Walzer, Just and Unjust Wars (n 29) 155–156. 37 Bellamy (n 18) 289–290.

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retributive violence.”38 Walzer is convinced that neither civilians nor prisoners of war may become the target of a reprisal. All reprisals against civilians should be morally condemned. It would be better to use alternative measures, for example negotiations or military action against enemy soldiers. Gross states: “If civilian immunity is to have any meaning whatsoever, then ordinary civilians cannot be made to pay for the crimes of others, regardless of the actions of one’s state (or quasi-state)”.39 Gross does not forbid reprisals completely, as long as the right to life is not violated: for example, property can be damaged.40 According to the just war theory, there is a situation in which it may be permissible to intentionally kill innocent civilians. Walzer states that the deliberate killing of the innocent is murder, however, in some extreme situations, commanders may have to commit murder or order others to do so. “In such situations, these individuals will have killed unjustly, perhaps for the sake of justice itself; nevertheless, justice itself requires that their actions be condemned.”41 Walzer refers to this kind of situation as a “supreme emergency”.42 It is an exceptional situation that forces an individual to break a moral rule, as also discussed while considering the peacetime principles regarding collateral damage. Jones and Parrish talk about the presence of moral conflict between two real yet incompatible moral values or obligations, where practically no available action permits the agent to avoid violating a deeply held moral principle.43 There is another way to justify actions that imply the killing of innocent civilians, which will be further elaborated in the next part.

War and the Doctrine of Double Effect

The Doctrine of Double Effect according to Walzer In the 13th century, Thomas Aquinas introduced the doctrine of double effect to justify self-defence: by defending yourself, the purpose is to save your own life, so killing the unjust threat is an unintentional foreseen side-effect.44 This was a reaction against Augustine’s reasoning, which stated that self-defence 38 Walzer, Just and Unjust Wars (n 24) 213–214. 39 Michael L. Gross, “Killing civilians intentionally: double effect, reprisal, and necessity in the Middle East.” (2005) 120(4), Political Science Quarterly 569. 40 Gross (n 39) 570. 41 Walzer, Just and Unjust Wars (n 29) 323. 42 Walzer, Just and Unjust Wars (n 29) 323. 43 Ben Jones and John M. Parrish (n24) 5. 44 Jonathan Spelman, "The morality of killing in self-defense: A Christian perspective”, (1993) 8 Trans. by Thomas Williams (Indianapolis: Hackett) 2.

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was not allowed, because it was just an act of self-love.45 The doctrine of double effect also found its way into the just war theory. It is possible that innocent civilians can be implied in the attack as well, although indirectly. Indirect or unintentional collateral damage can be unforeseeable, for example in an accident, but can also be foreseen. Accidental and unintentional collateral damage can have as its causes, for example, meteorological changes (e.g., wind speed), technical problems, or human error. Unintentional but foreseen collateral damage is, for example, an attack on a factory where it is known that innocent people of the neighbourhood are also likely to be killed. Here, Walzer refers to the doctrine of double effect. According to this doctrine, it is sometimes permissible for a negative effect to occur as a side effect of trying to do something positive (hence there is a “double effect”). In this respect, four conditions need to be fulfilled: (1) The act must be good in itself or at least neutral, which means, for our purposes, that it is a legitimate act of war; (2) Its direct effects must be morally acceptable, e.g. the destruction of military supplies or killing of enemy soldiers; (3) The intention of the actor must be good, meaning that his aim is to achieve the acceptable effect, while not employing any evil effects as means to this end; (4) The good effect must be sufficiently good enough in order to compensate for permitting the evil effect to occur.46 Or, otherwise stated, the collateral damage must be proportionate to the military necessity. However, Walzer thinks respecting these 4 conditions is still inadequate. He prefers to use the term “double intention” instead of double effect, reformulating the third condition as follows: “the intention of the actor must be good, meaning that his aim is to achieve the acceptable effect without using any evil effects as means to this end, and, being aware of the evil involved, seeks to minimize it and accept whatever the personal costs of doing so may be”.47 Not instrumentalising people is not enough, you also need to limit the killing of non-instrumentalised people as much as possible, even by taking one’s own risks if necessary. What degree of risk – “personal costs” – should an attacker take in order to minimize, as much as possible, the risk of collateral damage? Walzer speaks of a “price to pay” in order to keep the number of innocent civilian casualties as 45 Spelman (n 52) 2. 46 Walzer, Just and Unjust Wars (n 29) 153. 47 Walzer, Just and Unjust Wars (n 29) 155.

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low as possible. In such situations, Walzer argues that citizens need to be given “due care”. He criticizes for example the 1999 nato air campaign in Kosovo because it disproportionately harmed innocent civilians and their property. He argues that ground troops should have been used in place of air strikes so as to reduce the number of civilian deaths, even if this would have meant increased risks for nato soldiers.48 However, what should be the limits of this “price to pay”? According to Walzer, the willingness to accept additional risk should be limited by considerations of military effectiveness. It would be “illogical to take additional risks when this would doom the mission to failure”; this is when the “price to pay” stops.49 But, in such situations, should the mission then continue or be aborted? A lot will depend on military necessity. One solution would be to abort the mission or to try to find an alternative; however, military operations will often continue despite collateral damage when military objectives are deemed high priority. Morally relevant to this discussion could be whether civilians are intentionally used as human shields. Has action been taken to remove the innocent civilians from the neighbourhood of the military targets? In Vemork, Norway, during the Second World War, the heavy water plant had to be destroyed although it was surrounded by innocent civilians who were not evacuated.50 Hamas, a Palestinian Islamic organisation, used civilians as human shields in 2014 while firing rockets into Israel.51 If the civilians are used on purpose as a human shield in this case, Hamas carries the moral responsibility for these killings. In the case of being forced by its leaders, the innocent civilians cannot be blamed. Another option could be that the civilians have chosen to be there. In the case of the free choice, the civilians are morally responsible as well, and this would tend to plead in favour of authorising more collateral damage, unless they do not know that they are being used as human shields. However, women and children would probably never consent to become human shields. The risk to suppose that human shields will not be attacked is too high for that. There is also the danger that we do not know the real intentions of the 48 Michael Walzer, Arguing about War (1th edn, Yale University Press 2004) 99–104. 49 Walzer, Just and Unjust Wars (n 29) 156. 50 This destruction was vitally important to stop the production of heavy water, so as to delay the development of an atomic bomb by German scientists. Walzer, Just and Unjust Wars (n 29) 156. 51 Matthew Blake “Hamas admits it did use schools and hospitals in Gaza Strip as ‘human shields’ to launch rocket attacks on Israel – but claims it was ‘mistake’” Mail Online (12 September 2014) .

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innocent civilians. This could lead to slippery slopes. An enemy surrounding himself with innocent civilians is not an action without moral consequences, otherwise they can surround all military targets with innocent civilians unpunished. Then it could be asked why personal risks still should be taken. However, the notion of voluntary human shields is rather unrealistic and forced human shields should not be punished for the immoral actions taken by their leaders. Consequently, the moral consequences can never be transferred to the innocent civilians. Another morally relevant issue concerns whose civilians – the enemy’s or yours – will become the subject of the military actions. Suppose that an aggressor invades your country. You fight back and the opponent uses your own civilians as a human shield. Suppose that you push the enemy back to his country and he uses his own civilians as a human shield. You will try to protect your own people as much as possible, but should the same personal risks be taken to protect the enemy’s women and children, whom they have deliberately used as human shields? Human shields should always be protected, to the extent possible, even with personal risks, if necessary. Walzer states: “But the structure of rights stands independently of political allegiance; it establishes obligations that are owed, so to speak, to humanity itself and to particular human beings and not merely to one’s fellow citizens.”52 A last relevant moral issue concerns unintentional benefits due to unintended foreseen military action that can occur during a military action. The problem lies not with these unintended foreseen benefits themselves. “To rule out unintended harms that bring unintended side benefits would severely limit the scope of counterinsurgency warfare and conventional aerial bombardment.”53 However, as soon as military operations take place because of these expected intended advantages, this becomes morally problematic.

The Third Condition of the Doctrine of Double Effect according to Walzer, in Greater Detail Epistemological Problems Conditions one, two and four of the doctrine according to Walzer are verifiable: It concerns facts, even if it is not always easy in war to discover the truth. You can investigate whether the act and its consequences are legitimate, and whether the amount of collateral damage is proportionate to the purpose – although comparing between military advantages and collateral damage is,

52 Walzer, Just and Unjust Wars (n 29) 158. 53 Gross (n 39) 563, 564.

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again, very difficult. It is possible, in theory, to verify the amount of collateral damage, although problems occur, like parties hiding or destroying evidence, or even cultural customs, such as burying the bodies very quickly after their death. In contrast, what is more difficult to determine is whether “his aim is to achieve the acceptable effect, while not employing any evil effects as means to this end”, or in other words, to discover whether the killing of innocent civilians was intentional, or rather, unintended but foreseen. Intentions are more difficult to ascertain in war than, say, during a case of self-defence in a peacetime situation. In a peacetime context, the perpetrator of violence will normally be interrogated and arrested if necessary, and he will be forced to tell the truth, which is why he will mostly not so readily represent an intentional action as an unintended foreseeable act. In war, the different parties do not appear automatically before a court, so they do not automatically have to justify controversial actions. Besides, it is often more difficult to determine whether an action was really militarily necessary, due to multiple complex factors, in contrast to the more clear personal motivation of self-defence. Nowadays, more and more conflicts are fought out in cities amongst civilians, where the right intentions are even more difficult to appreciate, and there is therefore more occasion to manipulate the truth. The question is whether we should still base ourselves on the unverifiable intentions of an agent when weighing the justness of collateral damage, because it does not necessarily concern self-defensive action, but an action taken out of a more complex military necessity. Gross remarks that it is not about “the agent’s subjective intentions or motives but about his plans and the means he uses to achieve them”54 However, plans can also be manipulated. Your plan could include the destruction of a military factory in a crowded neighbourhood but your real intention could be to hit the innocent civilians to lower morale. Gross answers that you could investigate the importance of the military objective and weigh this against the utility of the collateral damage and make suppositions based on these facts. When collateral damage was not necessary to destroy the military objective, this is a suspect situation. The killing of innocent civilians would then be deemed intentional. A last epistemological problem is whether the agent is aware of the complete situation, which is complex. Does he know or should he have known that collateral damage would be caused if carrying out the attack? 54

Gross (n 42) 562.

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Different Visions on the Third Condition of the Doctrine of Double Effect When the doctrine of double effect is discussed in the literature, the paradigmatic cases given to distinguish between intentional acts and unintentional but foreseen acts are those of the strategic bomber and the terrorist bomber.55 They eventually both kill innocent civilians, but the terrorist bomber, who intentionally kills them, is morally condemned in the framework of the doctrine of double effect, while the strategic bomber, who unintentionally but foreseeably kills innocent civilians, is morally spared. This point of view is not without its critics. According to the consequentialists, the result of both actions is the same: whatever the intention may be, innocent civilians die. The difference between intentional and unintentional but foreseen consequences is often very blurry: some say it is the same thing: the strategic bomber kills unintentionally but foreseeably, but if you know with enough certainty that your action may cause collateral damage, then some will state that your unintentional but foreseen action is also intentional. You also “use” civilians intentionally, or the actions are at least morally equal. Or, is it right to say that strategic bombers, who are said to be unintentional in causing collateral damage, are acting justly, while terrorist bombings, which are considered to intentionally kill innocent civilians, are unjust acts? To answer this question, we will rely on the reasoning of Quinn and McMahan. In the first instance, Quinn asks whether a moral distinction should be made based on the character of the connection between what is intended and the resulting, foreseen harm: “If the connection is close enough, then the doctrine should treat the harm as if it were strictly intended.” 56 Quinn gives the example of the strategic bomber bombing an automotive factory: he would not target civilians, but the fact is that the factory is built in a crowded neighbourhood. He states: “So the kind of thing the bomber strictly intends immediately and invariably results in some innocent deaths.” 57 However, according to Quinn, the strategic bomber and the terrorist bomber would be morally condemned and that is not what our moral intuition tells us. Other moral differences should thus be found.58 55

56 57 58

Warren S. Quinn, “Actions, intentions, and consequences” (1989) 18(4) Philosophy and Public Affairs 336. Jeff McMahan, “Revising the doctrine of double effect” (1994) 11(2) Journal of Applied Philosophy 201. Quinn (n 55) 338. Quinn (n 55) 338. Quinn (n 55) 338.

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Nor does it matter that only the terrorist bomber wishes for the civilians to die, because for the terrorist bomber, they need not die, because appearing to be dead is enough to intimidate his opponent; yet, after the conflict the civilians may be seen to be alive once again. In contrast, the relevant moral difference is that the terror bomber needs the civilians to serve his goal. “What matters is that the effect serves the agent’s end precisely because it is an effect on civilians.”59 Quinn calls this “direct agency in the production of harm”.60 In case of the strategic bomber, the civilian’s involvement does not serve his goals. “Perhaps the strategic bomber cannot honestly say that his effect will be unintentional in any standard sense, or that he does not mean to kill them because the relation between what he intends and the resulting foreseen harm is very close, but he does not use them to attain his purpose”.61 Quinn calls this “indirect agency in the production of harm”.62 Quinn makes another distinction in “direct agency”. When the agent “benefits from the presence of the victims”, then exploiting them, as the terrorist bomber does, is deemed to be a form of direct opportunistic agency. When the agent “aims to remove an obstacle or difficulty that the victim presents”, this is called direct eliminative agency.63 An enemy using human shields is one example. Direct opportunistic agency is morally worse than direct eliminative agency, but the latter is also unethical because: “Someone who gets in your way presents a strategic problem, a causal obstacle whose removal will be a service to your goals.”64 Finally, according to Quinn, a moral operator should be introduced: moral rights. Direct agency is only to be morally condemned if independent moral rights are violated.65 For example, “non-combatants (even those on the wrong side) are not morally obligated to serve the right side by accepting the role of demoralizing civilian casualties,” so their moral rights are violated. “The victims are made to play a role in the service of the agent’s goal that is not morally required of them.”66 The difficulty when including moral operators while judging an action is to find a consensus about what exactly is a rights violation, and what is not. 59 60 61 62 63 64 65 66

Quinn (n 55) 342. Quinn (n 55) 344. Quinn (n 55) 342. Quinn (n 55) 341–342. Quinn (n 55) 344. Quinn (n 55) 350. Quinn (n 55) 349. Quinn (n 55) 349.

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A second person that has tried to develop the doctrine of double effect is Jeff McMahan. This is his description about what an unjust action in the framework of the doctrine of double effect should be: “An act is an instance of potentially harmful direct agency if it is intended to affect or involve a person P in the agent’s plans and if one of the following is among the effects that the act is strictly intended to have: [i] an effect on P that is itself bad for P or constitutes a harm, [ii] an effect on P that, while not itself a harm given the description under which it is strictly intended, is nevertheless such that the agent believes that there is an alternative description of it under which it is bad for or constitutes a harm to P, or [iii] an effect on P that, while not itself a harm given the description under which it is strictly intended, is nevertheless believed by the agent to be harmful to P because it is believed to be causally sufficient, in the circumstances, either for a significant harm to P or for a high probability of such a harm.”67 When applied to the self-defence case, any harm done toward the unjust threat is a “potentially harmful direct agency”. Indeed, it satisfies condition i: it concerns an effect on the attacker that is negative for the attacker. The application of criterion iii would also condemn self-defence: the effect created by the defender on the attacker is meant to involve the attacker, and although the harm itself is not intended, it is believed to be causally sufficient for a significant harm to the attacker. Criterion ii is also fulfilled, as there exists an alternative description to “save myself” under which it is bad for or constitutes a harm to P, like saying that “the defender attacks the attacker”. McMahan thinks that the causal connection between one’s action and the resulting foreseen harm to the victim is morally relevant to the question of whether or not to condemn a moral action. However, McMahan adds other moral relevancies. McMahan states that the difference between the two bombers should lie in the fact that in case that there is a close relation between the agent’s action and the foreseen resulting harm, the strategic bomber has no plans to harm the innocent civilians in opposition to the terrorist bomber. A difference has to be made between “intending to involve a person” and “intending to do something that involves a person”. This is similar to Quinn’s condition of using or involving a person to serve the agent’s goals. Uniacke in this context proposes a “test of failure” to test intentionality: would the mission fail if the harmful effects were avoided?68 If the answer is yes, then the harm is unintentional but foreseen.

67 68

McMahan (n 55) 209–210. Gross (n 39) 562.

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McMahan counters the critics that his three criteria morally condemn selfdefence, which is counterintuitive, by adding moral operators like Quinn did when introducing moral rights, called “nullifiers”. These are supplementary conditions to morally judge an action or not. Harmful direct agency is impermissible unless nullified by various moral considerations or moral operators such as moral guilt, moral duty, and the consent of the person who is being harmed.69 In the case of self-defence, the moral guilt of the attacker does indeed nullify the wrongness of the harmful direct agent that is the defender in this case. In the case of the strategic bomber and the terrorist bomber however, there are no nullifiers, and so it satisfies the criterion of harmful direct agency: “the persons who are harmed have no duty to serve as victims, have not consented to be victims, and are not liable to be treated as victims by virtue of being guilty or dangerous.”70 This risks morally condemning both cases. However, McMahan sees the difference with “in the agent’s plans”. In the rest of the article, we assume that the civilians have moral rights not to be killed and that they are innocent.

The Third Condition of the Doctrine of Double Effect and the Use of Armed Drones Because we see no relevant moral difference between the two concerning causing collateral damage, the use of armed drones can be compared to the strategic bomber case, but with a more systematic character. When collateral damage is caused with a high probability, and systematically, then there is definitely a close relation between the agent’s actions and the resulting foreseen harm. However, that criterion alone is not enough to morally condemn the action. The first question to be answered is whether the caused collateral damage is part of the agent’s plans. We may assume that the users of armed drones do not kill innocent civilians intentionally, although it is strange that, according to some governments, every male person between 15 and 66 years old in the proximity of a terrorist is also considered a terrorist. However, means and methods are also part of the plans and they should also be judged. If these armed drones systematically cause collateral damage, then it becomes a weapon mala in se. When a police officer has to kill someone in a mass of people during peacetime, then his weapon has to be precise enough to eliminate the threat. He could try to get closer to the target, or use rubber bullets. When the criminal 69 70

McMahan (n 55) 211. David R. Mapel, “Revising the doctrine of double effect” (2001) 18(3) Journal of Applied Philosophy 268.

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protects himself with five people around him, then the police officer cannot shoot, unless the suspect starts killing bystanders or starts threatening increasing numbers of people. A car driver who knows that his breaks are broken, and then unintentionally kills a person, is negligent and will also be punished by criminal law. His systematic, recidivist behaviour will be punished more severely. These are two examples of lack of precaution because of improper means or methods. This also counts for armed drones that are made improper weapons or weapons mala in se by the enemy because the terrorists often surround themselves with innocent civilians. The second question to be answered is whether moral rights are violated or if nullifiers are present. In the cases of the strategic and the terrorist bomber, we have just concluded that indeed moral rights are violated and that no nullifiers are present. There are no morally relevant differences between these cases and drone strikes in relation to the innocent civilians. Consequently, based on this criterion, the drone strikes would be also morally condemned. The third question concerns the second part of the third condition of Walzer’s doctrine of double effect: you “should try to minimize the evil and accept whatever the personal costs of doing so may be”. Is this condition satisfied in the case of the use of armed drones? In war, armed drones can be used to assist ground troops, so the physical risks taken are not always necessarily zero. If the risk of collateral damage is too high, alternatives can be investigated; for example ground troops can be used to carry out the operation. In the fourth part of this article, it will become clear that this is problematic in the grey zone between war and peace. It must be remarked that minimizing risks does not necessarily imply taking one’s own risks: you could try to negotiate with the enemy, or try to warn the civilians by spreading flyers from an airplane so that they have the chance to leave the neighbourhood of the military target. However, even supposing that the civilians are forewarned, they could still be forced to stay. Must all military operations causing any collateral damage that does not satisfy these conditions really be morally forbidden? Some parties surely use human shields as protection in a systematic way, it is like they are wearing a protective vest. These enemies do this because they know that the armed drones are not capable of targeting just one person in a group of people, because of the enormous impact of the drones’ missile. And, if the armed drone is the only weapon available in the region, then there are no alternative interventions. The enemy then forces his opponent to effectively commit war crimes or to not react. As a consequence, the enemy can do what he wants when violating the discrimination principle, by surrounding himself with civilians.

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However, the availability of other appropriate means or methods does not put us in this morally problematic situation. The enemy always used human shields, for example during sieges, or they use factories in a populous neighbourhood for military purposes. Human shields remind us of Quinn’s direct eliminative and direct opportunistic agency. Human shields are rather the object of direct eliminative agencies: they are an obstacle, and the agent has no purpose to exploit them. However, Quinn condemned both agencies, because even the removal of the obstacles will also “be a service to your goals”. Because of the physical proximity of ground troops, alternatives are present. And even if there is no better alternative to apply, the fact that alternatives exist already makes a moral difference.

Other Opinions on Collateral Damage

Revisionists of the just war theory disagree with the moral equality of combatants, arguing that unjust combatants should get fewer rights than just combatants once a war has started. What counts to them is the fact that to lose the right not to be attacked involves moral responsibility, regardless if you are a soldier or a civilian.71 However, McMahan provides nuances: in most cases, civilians will not be so responsible that they should be attacked. Often, less drastic measures are enough, like economic sanctions.72 Some of these revisionists state that just combatants should have more rights than is currently the case, like the right to kill non-combatants intentionally. “On this view, a combatant fighting a war of exceptional justness and importance might possess exceptional permissions to inflict high levels of collateral harm on non-combatants”.73 Compared to peacetime, just combatants are similar to the police, in the sense that they have many rights, and the unjust combatants and terrorists are similar to the criminal, in the sense that they have fewer rights. After all, the police officer fights for a just cause, namely to guarantee the security of society, while the criminal tries to destabilise the public order. However, a bank robber does not rob a bank according to any honour code, but he does not lose all his rights either. The guard cannot shoot the bank robber just like that. The most important difference however is the causing of collateral damage. As seen in the previous section, the police officer 71 72 73

Jeff McMahan, “The Ethics of Killing in War” (2004) 114 Ethics 719, 720. Jeff McMahan (n 71) 729. David Rodin, “Liability of Ordinary Soldiers for Crimes of Aggression” (2007) 6 The Washington University Global Studies Law Review 591.

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cannot cause collateral damage, even if his cause is obviously just, except in exceptional circumstances. In our view, it is a bridge too far to allow the intentional killing of innocent civilians in non-exceptional circumstances, however unjust the opponent is. If you kill them intentionally, then you are no better than a terrorist. When confronted with terrorism, the proportionality principle applies: because your central rights are in danger, including the right to life, you can react harder, but this must not conflict with the discrimination principle.

The Grey Zone between War Peace and Peace and Collateral Damage Characteristics of the Violence Used in the Grey Zone between War and Peace Walzer states: “However, in the places in between, such as in states that lose control of parts of their country or are wracked by civil war in which terrorists can set up camp, the situation has a different ‘feel’ because … it happens outside the moral and legal conventions of ordinary warfare”.74 Terrorists take advantage of situations where states are unable or unwilling to stop them. As a reaction, armed drones are used, often by other states, like the United States. It is not possible to speak of peacetime, because of the amount of violence, but no conventional war is going on at present either. At first sight, there seems to be a new “context” that we shall call the grey zone between war and peace. However, this grey zone has characteristics of both peace and war contexts, so it is a hybrid context. Different from classic warfare but similar to law enforcement is the locality of the use of violence, because of the targeted character of armed drones. The purpose of the drone strikes is not to conquer a country, but to diminish or eliminate a terrorist threat with precise actions against one person or a small group. The use of violence is often less frequent than during war; one drone strike takes place and then it can be quiet again for a considerable time. To overpower or to exhaust the enemy by means of successive actions, like in war, is not the actual objective. Because of this controlled, local and less frequent use of violence, the danger of unpredictable consequences like those seen in war seems more limited.75 The drone-using state is capable of doing this for a time: the drone-attacks are relatively cheap and lives from your own side are not lost. It seems to have become an endless or eternal conflict between a clearly just and a clearly unjust party, namely those who fight terrorism, and the terrorists themselves. Many of these characteristics remind us of law enforcement.

74 75

Michael Walzer, “On fighting terrorism justly” (2007) 21(4) International Relations 480. Michael Walzer, “Regime change and just war” (2006) (53)3 Dissent 106.

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Indeed, there too, the used violence is intentional but controlled – it is local and less frequent, and is mostly focussed on one specific person (or a group of identified persons, or a behaviour) in order to neutralise their threat. There too, it is clear who is the just party, and who is the unjust party, in this endless situation of law enforcement, namely the law enforcer and the suspect or criminal. However, the intensity of the violence is extremely heavy, with the use of missiles carrying an enormous payload, often with many injured, dead, and indeed collateral damage. This reminds us of warfare, and the local population often perceives it as such.76 Conventional police forces do not seem to be equipped to deal with this level of threat. The violence used is cross-border, which implies a violation of the sovereignty of the countries who are unable or unwilling to help stop the terrorists. Because it is through rather invisible drones instead of airplanes crossing the borders, this border-crossing is often tolerated by other countries. The opponent is an unjust threat, but it is a different one than that seen during ordinary law enforcement action: it is more than “just” a criminal, it involves terrorists.77 Many definitions of terrorism exist. It is important to us that they do it for a public purpose, and the method used is to kill as many innocent civilians as possible, in order to create fear.78

Principles Related to Collateral Damage in the Grey Zone between War and Peace The question arises now which principles should be applied when drone attacks take place, if they can be used after all in this non-war context. Should peacetime or wartime principles be applied, or something between the two? One approach could be to apply the same principles in this grey zone as would be applied during peacetime. However, this would ignore the character of the threat, which is now of a terrorist nature. Because the threat of terrorism focuses on innocent civilians, we could say that this threat is more serious than during war, where soldiers are normally only targeting other soldiers, and not civilians. In that sense, the necessity to stop the threat is on average more important here than it is during war.79 The allowed amount of collateral damage needs to be 76 77 78 79

Christian Enemark, “Armed drones and the ethics of war: military virtue in a post-heroic age” (2013) Routledge, 75. It should be noted that terrorism is not inherent to the grey zone, it is also possible during peace and wartime. There are also more moderate forms of terrorism. See: Walzer (n 29) 198–201. The question is what is considered a necessity. In war, generally, necessity is what contributes to military victory. During peacetime, necessity will be considered in a more context-dependent way, case by case. On the other hand, during wartime, necessity needs

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evaluated against this necessity, like during peacetime in exceptional circumstances. If the amount of force a government is allowed to use in the grey zone is too restricted, terrorist groups may decide to maintain a sufficiently low level of violence in order to prevent the use of heavy weapons like armed drones from being used against them because no war is going on but enough violence is used to easily defend against the weapons and methods accompanied with law enforcement. Adapted principles seem necessary here, otherwise terrorists would also systematically use human shields, and then no reaction would be authorized because during peacetime, causing collateral damage is not allowed, even when not unintentional and unforeseen. However, in this grey zone, causing collateral damage should also be accompanied by the same conditions as during wartime. The improper weapons and means are, just like in war, part of the agent’s plans, even if he does not want to cause systematic collateral damage. Besides, unlike during a more conventional war, where drones assist ground troops who are exposed to a certain physical risk, armed drones are used here without any other physical presence in the region. When alternatives are not an option at all, when personal risks cannot be taken to minimise collateral damage, then this becomes morally problematic. We can conclude that the third condition of the doctrine of double effect according to Walzer is not satisfied. One reaction could be that this extreme situation of a clearly just and unjust party warrants the just party to act without risk exposure, similar to the police officer who normally should not be exposed to risks. We would respond that first of all, the main problem here is that there is no possibility at all to minimise collateral damage, taking personal risks is only necessary if there are no other alternatives. If there must be the possibility to cause collateral damage, so then a price must be paid. If the armed drone is the only option, because it is the only weapon in the region at that moment, it cannot be concluded that the discrimination principle should be mitigated, because then you are adapting moral reasoning to a technology. Users of armed drones in these grey zones have two options: making the armed drones a just weapon, meaning that they respect amongst other things the conditions of the doctrine of double effect while causing collateral damage, or forbidding their use entirely.

Drone Strikes in the Grey Zone: Alternatives to Minimise Collateral Damage Can unintentional foreseen collateral damage be minimised when using armed drones? If intelligence services were present on the ground, the amount of

sometimes also to be considered case by case: for example, when soldiers are attacking civilians.

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potential collateral damage could be, on average, reduced. Walzer is clear about this: “Collecting information about the targeted individuals, their schedules, their whereabouts, their families and their neighbours, is critically important, and if it involves risk for agents in the fields, the risks must be accepted before the killing can be justified”.80 Again, taking personal risks is not always necessary but will very often be the consequence. For example, gathering HUMINT will involve personal risks: sending infiltrators, spies or installing bugs all imply physical risk exposure. However, is it reasonable to put boots on the ground in remote tribal areas in Pakistan? If the price is too high, it might be better to not carry out these drone strikes and focus on alternatives or to authorize drone strikes only when it is certain that no innocent bystanders are present. It also might be possible to try to limit causes with a less high cost in physical risk, for example solving the communication problems or a better management of the overload on information. In practice, the higher the physical cost of something, the more it is difficult to change it. So what other alternatives are possible? Non-lethal alternatives would be a solution; here, fewer people would be killed and collateral damage could be partly avoided. In the future, mini-drones much like a robot insect could sting the target with poison. Robot insects could sit somewhere close to an enemy and collect information about their intentions. It does not seem unrealistic to suppose that, eventually, drones will be capable of capturing alleged ­terrorists – perhaps through the use of mechanical arms – and transporting them to places where they can be arrested and guaranteed a fair trial. However, these technologies are still under development. The alternative of spreading flyers to warn the innocent civilians is not realistic: first, a drone cannot spread flyers and two, it is a drone’s purpose to stay quiet and surprise the enemy. Today, we could ask whether enough communication has taken place with states that harbour terrorists. Do these governments willingly permit safe havens to exist or is it something out of their control? Do these governments willingly permit drone strikes or are they viewed as a violation of national sovereignty? In any case, cooperation with these governments would be ideal, since then national police or armed forces could be used to intervene as opposed to sending drones. Moreover, to what extent can a political solution be found to respond to the threat of terrorism itself? This may be the only way of reaching a stable and peaceful outcome.81 In any case, the collateral damage 80

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Michael Walzer, “Targeted Killing and Drone Warfare” 11 Dissent Magazine (New York, January 2013) . David Cortright, “License to kill” (2012) cato Unbound .

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associated with drone strikes leads to the recruitment of future terrorists. It leads to a vicious circle. When people see their family and friends die around them, this creates resentment.

Conclusions

The use of armed drones is not in itself necessarily problematic. In theory, drones have the capacity to neutralize their targets very precisely. However, recent drone strikes taking place in the so-called grey zone between war and peace, as is witnessed in countries like Pakistan and Yemen, have caused a great deal of collateral damage. Terrorists make the armed drones out to be mala in se weapons, i.e. weapons that systematically cause collateral damage, because they surround themselves with human shields just as though they were wearing protective vests. The enemy knows that their enemy has no alternatives present, other than killing with that drone, and they then take advantage of that situation. The question is whether this reactive, systematically caused, collateral damage can be morally justified. Although some philosophers morally allow the intentional killing of innocent civilians as a function of the justness of the cause for which they went to war, we think that collateral damage must be reduced as much as possible. The doctrine of double effect states that is it possible to cause unintentional but foreseen collateral damage. This damage must not be in the agent’s plans. When the connection between your action and the foreseen resulting harm is clear, consequently, because of the systemic character of the collateral damage, the inappropriate weapons and methods used become part of the agent’s plans. In war, ground troops can normally be considered an alternative to eliminate the threat, and they might intervene physically and will expend maximal effort to protect civilians while taking risks themselves if needed to minimise collateral damage, but in this grey zone between war and peace, where drones are the only means available in the region, where the intelligence gathered is often incomplete and unreliable, you cannot take any alternative to minimise the collateral damage. If the drones’ users are not capable of stopping the violations of the conditions of the doctrine of double effect, they must find alternatives instead of drone strikes to stop the terrorist threat.

Chapter 6

Terrorism and Democratic Governance – What are We Willing to Pay? Kristina Tonn Combating terrorism is one of the dominant issues of our time: the fear of new attacks, the radicalization of mainly young people including our own ­nationals, the tightening of security laws, the use of the armed forces within a state for terror defence, the fight against terrorist groups like the Islamic State – these are all aspects that not only preoccupy the media, but also politics, society and finally each individual. Moreover, politicians and security organs are under enormous pressure to respond adequately to the terrorist threat, the anxiety of the population and to harmonise contradicting demands, likewise it is often difficult or almost impossible to ensure an abstract (objective) consideration and assessment of such situations. There are numberless answers to the question of how terrorism can be fought effectively. Paul Wilkinson, for example, describes three possible ­approaches to this field: the use of politics and diplomacy, the use of law enforcement and criminal justice systems and the role of the military. In my opinion the fight against terrorism requires a combination of these three approaches. Such a combination offers a multidimensional approach, aimed at enabling a liberal democratic state to combat terrorism effectively and efficiently without undermining or seriously damaging the democratic process, the rule of law or individual rights, while providing sufficient flexibility to cope with the whole range of threats, from low-level attacks to intensive, mass-casualty campaigns amounting to a state of war. (Wilkinson 2006: 61)

Can the Bundeswehr be Deployed inside Germany to Combat Terrorism?

To answer this question, the organization of the Federal Republic of Germany needs to be considered first. In Germany, as well as in other states, it is one of the central duties of the state to create and implement a public order that averts threats and dangers to the life, health and the property of each individual and offers a basis on which freedom and prosperity can evolve. (Gareis 2014 1: 89) © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_007

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Principally – considering the pure wording of the law – the allocation of tasks and duties, of competences and responsibilities of the security forces is clearly separated by the constitution1 – the Basic Law – in Germany. (Gareis 2014 1: 90: Gramm/Pieper 2015: 227–228; Möllers 2014: 149; Wiefelspütz 2007: 13) In its intention the Basic Law makes a distinction between internal and ­external security. (Gramm/Pieper 2015: 208, 227; Wieland 2004: 171) Internal security incorporates the internal peace and the public security within a state. External security concerns first of all the security and peace of Germany in relation to other States. Put in very simple terms, it can be summarized as ­follows: in the area of internal security the responsibility is dedicated to the police forces, in the area of external security to the armed forces. However, it is becoming increasingly difficult to identify and define an exact separation of responsibilities and powers in some areas. Particularly in the area of counterterrorism, situations arise that concern both tasks and cannot clearly be assigned to one or the other. (Arnauld/Staack 2009: 19; Gareis 2014 1: 89; Möllers 2014: 149: Wieland 2004: 167) Nevertheless, this distinction must be considered not only in a constitutional or scientific debate, but also and especially by the acting state and its executive organs. (Gramm/Pieper 2015: 208) Ensuring public safety is one of the central responsibilities of the state because it concerns one of the most important legally protected interests of every individual citizen. The protection against threats to public security in Germany is first and foremost assigned to state security services, primarily to the police and administrative authorities. Especially in the field of combating terrorism, preventive protection against threats in this field becomes more and more important. (Gramm/Pieper 2015: 209–210) The state is not free, however, in its choice of means and methods to comply with its protection mandate. It is and remains a constitutional state which is also bound to the legal principles of a democracy and the rule of law, even in times of threats like terrorism. The state and its executive organs may therefore only apply the means and methods granted to it by law. (Gramm/Pieper 2015: 211) The organization of the German security forces is influenced by Germany’s federal system. (Möllers 2014: 178) On account of this, the Federal Government grants its sixteen states2 autonomy in the field of counter terrorism as long as federal institutions are not responsible. The law-making process is mainly centralized in the Federal Government and the Federal Parliament. 1 Art. 87a paragraph 2 Basic Law. 2 Länder.

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However, law-enforcement procedures are primarily appropriated to the individual states. “Each state has its own police force, including a State Criminal Police Office and specially trained anti-terrorism units.” (Gramm/Pieper 2015: 211; Malthaner/Waldmann 2003: 116) The Federal Criminal Police Office3 and the Federal Police4 are both federal police forces, subordinate to the Federal Ministry of the Interior.5 In terms of internal security, the Federal Police performs extensive and diverse police tasks, particularly in the areas of border control, railway police and aviation security. The counter-terrorism and specialist operations unit of the Federal Police is the Border Protection Group 9, commonly abbreviated gsg 9.6 The Federal Intelligence Agency7 is the German foreign intelligence agency, directly subordinate to the Chancellor’s Office. The domestic secret service counterparts of the bnd are the Federal Office for the Protection of the Constitution8 and 16 counterparts at state level: the State Offices for the Protection of the Constitution.9 Their task is the protection of the liberal democratic basic order and the continuance and the security of the German State and the individual states. There is also a separate military intelligence organization, the Military Counterintelligence Service.10 The range of tasks of the mad is very limited. The service collects and analyses information only concerning the Bundeswehr. (Gareis 2014 1: 90; Gramm/Pieper 2015: 212–213; Malthaner/ Waldmann 2003: 116; Möllers 2014: 157–164) Apart from the tasks of these institutions, the question often arises whether the Bundeswehr, as the German army, can be deployed inside Germany to combat terrorism? The tasks of the military and police forces are strictly separated in Germany due to the historical experiences of the Nazi era. The police forces are solely responsible for the internal security responsibilities. According to Art. 87a of the Basic Law, the Bundeswehr is first and foremost a defence army. The deployment of the armed forces inside Germany is clearly limited by constitution. (Hirsch 2009: 65) 3 Bundeskriminalamt, bka. 4 Bundespolizei, former Federal Border Police (Bundesgrenzschutz). 5 Bundesministerium des Inneren. 6 Bundespolizei: Unser Auftrag – url: . 7 Bundesnachrichtendienst, bnd. 8 Bundesamt für Verfassungsschutz. 9 Landesämter für Verfassungsschutz. 10 Militärischer Abschirmdienst.

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Due to this the rights, limitations and tasks of the Bundeswehr are laid out in the Basic Law for the Federal Republic of Germany:11 The German armed forces are established by the Federal Republic of Germany for defence purposes pursuant to Article 87a.1 sentence 1 of the Basic Law. Pursuant to Article 87a.2 of the Basic Law, they may only be employed for other purposes (“Apart from defence”) to the extent explicitly permitted by the law. This regulation, which was created in the course of the incorporation of the emergency constitution into the Basic Law by the Seventeenth Act to Amend the Basic Law of 24th June 1968,12 is intended to prevent “unwritten … ­competences” from being derived “from the nature of things” for the deployment of the armed forces as a means of that executive power. What is decisive for the interpretation and application of Article 87a.2 of the Basic Law, therefore, is the objective to limit the possibilities for a deployment of the Federal Armed Forces within the domestic territory by the precept of strict faithfulness to the wording of the statute. (BverfGE 1 BvR 357/07 Rn 93) Article 87a Basic Law for the Federal Republic of Germany: [Armed Forces] (1) The Federation shall establish Armed Forces for purposes of defence. Their numerical strength and general organisational structure must be shown in the budget. (2) Apart from defence, the Armed Forces may be employed only to the extent expressly permitted by this Basic Law. (3) During a state of defence or a state of tension the Armed Forces shall have the power to protect civilian property and to perform traffic control functions to the extent necessary to accomplish their defence mission. Moreover, during a state of defence or a state of tension, the Armed Forces may also be authorised to support police measures for the protection of civilian property; in this event the Armed Forces shall cooperate with the competent authorities. (4) In order to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land, the Federal Government, if the  conditions referred to in paragraph (2) of Article 91 obtain and the police forces and the Federal Border Police prove inadequate, may 11

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Bundeswehr (2015-12-01): Katastrophenhilfe und Innerer Notstand – url: . Gesetz zur Änderung des Grundgesetzes , Federal Law Gazette i, p. 709.

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e­ mploy the Armed Forces to support the police and the Federal Border Police in protecting civilian property and in combating organised armed insurgents. Any such employment of the Armed Forces shall be discontinued if the Bundestag or the Bundesrat so demands. The inclusion of emergency laws in the Basic Law was one condition imposed by the Allies after the Second World War before they would transfer full sovereignty to the Federal Republic of Germany. This was in order to ensure the safety of allied troops still stationed in Germany. (Gareis 2014 2: 138) If, in a state of defence, the Bundestag and the Bundesrat (federal council) cannot perform their functions or reach important decisions, the so-called Joint Committee13 may assume decision-making power. Two-thirds of the Joint Committee are members of the Bundestag and the remaining third are members of the Bundesrat. The Joint Committee is not allowed to change the Basic Law. According to Article 10 of the Basic Law, in such situations limitations may be placed on human rights such as the privacy of correspondence, confidentiality of telecommunication and of postal communication, in order to protect free and democratic constitutional order. Freedom of movement may also be limited under certain conditions. Occupational freedom (the right to pursue a career of one’s choice) may also be altered.14 The laws concerning the State of Emergency, which were set out by the Bundestag (parliament) on the 30th of May 1968, explicitly include in the B ­ asic Law two very limited possibilities for the deployment of the armed forces within Germany: disaster relief (Article 35) and internal emergency (Article 87a, paragraph 4). Disaster Relief, Article 35 Basic Law Article 35 Basic Law contains legislation on cases of a state of defence, a state of tension or an internal state of emergency or disaster relief. In such cases, basic constitutional rights may be limited. Article 35: [Legal and administrative assistance and assistance during disasters] (1) All federal and Land authorities shall render legal and administrative assistance to one another. 13 14

Gemeinsamer Ausschuss. Bundestag: Historische Debatten (5): Notstandsgesetze – url: http://www.bundestag.de/ dokumente/textarchiv/25458537_debatten05/200088 (last accessed: 2016-02-28).

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(2) In order to maintain or restore public security or order, a Land in ­particularly serious cases may call upon personnel and facilities of the Federal Border Police to assist its police when without such assistance the ­police could not fulfil their responsibilities, or could do so only with great difficulty. In order to respond to a grave accident or a natural disaster, a Land may call for the assistance of police forces of other Länder or of personnel and facilities of other administrative authorities, of the Armed Forces, or of the Federal Border Police. (3) If the natural disaster or accident endangers the territory of more than one Land, the Federal Government, insofar as is necessary to combat the danger, may instruct the Land governments to place police forces at the disposal of other Länder, and may deploy units of the Federal Border ­ Police or the Armed Forces to support the police. Measures taken by the Federal Government pursuant to the first sentence of this paragraph shall be rescinded at any time at the demand of the Bundesrat, and in any event as soon as the danger is removed. What exactly does legal and administrative assistance during disasters mean according to Article 35 Basic Law? In the case of a regional emergency situation pursuant to Article 35.2 sentence 2 of the Basic Law, the individual state affected can request the assistance of forces and facilities of the armed forces to deal with a natural disaster or an especially grave accident. Such assistance shall be provided to the extent that this is necessary for dealing with such an emergency situation effectively. In the case of an interregional emergency situation, which endangers an area larger than one state, no such request is necessary pursuant to Article 35.3 sentence 1 of the Basic Law. Instead, the Federal Government can in this case employ units of the armed forces of its own accord to support the police forces of the individual states, apart from units of the Federal Police. (Gareis 2014 2: 138; Spranger 2004: 192; Thiel 2011: 354; BverfGE 1 BvR 357/07 Rn 94). What is understood as an especially grave accident within the meaning of Article 35.2 of the Basic Law? In general it is understood as the occurrence of major damage, which especially affects the public due to its significance and which is caused by human wrongdoing or technical deficiencies. (BverfGE 1 BvR 357/07 Rn 98). Besides that, it also encompasses an event caused purposely by a human being. The meaning and purpose of Article 35.2 sentence 2 of the Basic Law, which is to make effective disaster control possible, if necessary through the deployment of the armed forces, speaks in favour of interpreting the concept of “accident” broadly. Therefore, for quite a long time state practice has been rightly assuming that occurrences of damages that are caused intentionally by

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third parties are also to be regarded as especially grave accidents. (BverfGE 1 BvR 357/07 Rn 100) Article 35.2 sentence 2 of the Basic Law does not require the particularly serious accident to have already happened prior to the call for the employment of the armed forces. By contrast, the concept of an emergency situation also comprises events in which a disaster can be expected to happen with near certainty. (BverfGE 1 BvR 357/07 Rn 101) The fact that, pursuant to Article 35.2 sentence 2 of the Basic Law, the request for armed forces and their deployment is made “to render assistance” “in the case of” a natural disaster and “in the case of” an especially grave a­ ccident, does not forcibly suggest the assumption that the occurrence of the respective damage must have already occurred. The sense of the wording of the r­ egulation equally allows for an interpretation to the effect that assistance can already be requested and rendered when it becomes apparent that in all probability, a case of damage will occur soon, i.e. if a present danger within the meaning of police law exists. (BverfGE 1 BvR 357/07 Rn 103). The word “assistance” referred to in the article is rendered to the individual state to enable them to effectively fulfil the function, which is incumbent on them, to deal with natural disasters or especially grave accidents. Regarding the means, especially the weaponry, narrow limitations are set for the armed forces. This means that when the armed forces are employed “to render assistance” upon the request of a state pursuant to Article 35.2 of the Basic Law, they can use the weapons that the law of the respective state provides for its police forces. In contrast to this, military implements of combat, for instance the on-board weapons of a fighter aircraft that are required for measures pursuant to § 14.3 of the Aviation Security Act, may not be used. (Hirsch 2009: 69; BverfGE 1 BvR 357/07 Rn 106). Article 35.3 sentence 1 of the Basic Law – the interregional disaster relief – requires the existence of a danger which threatens the territory of more than one state. Regarding the interregional nature of the emergency situation, the initiative for effectively dealing with this situation is shifted to the Federal Government, and its competences to support the police forces of the Individual state are extended; the Federal Government can, inter alia, employ units of the armed forces of its own accord. What is not provided, however, is that in such a mission, the armed forces can use specifically military weapons. Instead, the wording of Article 35.3 sentence 1 of the Basic Law, which permits the deployment of the armed forces only “to support” the police forces of the Individual state, i.e. again only to perform a state function, and the purpose of the regulation of mere support of the individual state by the Federation, which becomes apparent from this,

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rules out a mission with military weapons in the light of Article 87a.2 of the Basic Law, as well as when it comes to dealing with interregional emergency situations. (BverfGE 1 BvR 357/07 Rn 116). In times of a natural disaster or in the case of an especially serious accident, the armed forces may be required to restore security and order and to provide assistance when the police are no longer capable. (Isensee / Kirchhof 2006: § 84 Rn 61–62). Could the Bundeswehr Use Military Means for “disaster relief”? This has been a controversial topic for decades. Could the Bundeswehr, when deployed on German soil, only act as “auxiliary police” i.e. using classical law enforcement tools and practices, or should they also employ specific military means such as tanks, fighter jets and similar equipment? The Federal Constitutional Court has dealt with this question on two occasions. In 2006, there was a judgment on the “Aviation Security Act”.15 The law ­allowed for the shooting down of passenger aircrafts, which had been hijacked by terrorists. The Court ruled that the killing of non-involved, innocent persons would be a violation of human dignity and is therefore forbidden. A second important part of the verdict regards the use of military means in the interior. The court generally ruled that such use is not allowed. The shooting down of an aircraft with uninvolved passengers, although it is employed by terrorists as a "weapon", is still not allowed because it would constitute a violation of human dignity as it is laid down in Article 1 of the Basic Law. In 2012, however, there was an interesting shift in opinion on the question of the use of military means in particularly grave accidents. The states of Bavaria and Hesse had also brought actions against the Aviation Security Act. The Federal Constitutional Court decided that the constitutional prohibition of the use of such means is not always applicable, but it still is bound to very strict and narrow conditions. (Gramm/Pieper 2015: 214, BverfGE 2 PBvU 1/11 Rn 40f). The clear separation of the police forces and the armed forces also applies to the purpose and the training of the respective forces. In very simplified terms, national police and security forces are responsible for ensuring security and order in a state and to investigate and prosecute crimes. The tasks and missions of the Bundeswehr, however, encompass national defence as a collective defence under the North Atlantic Alliance, international conflict prevention and crisis management – including the fight against international terrorism, ­participation in military tasks under the eu’s Common Security and Defence Policy, contributions to homeland security i.e. defence tasks on G ­ erman t­ erritory 15 Luftsicherheitsgesetz.

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and assistance in cases of natural disasters and serious accidents, the protection of critical infrastructure, rescue and evacuation operations and hostage rescue abroad, partnership and cooperation as part of multinational and global security operations, and humanitarian aid abroad.16 The investigation and defence of crimes is not included in the original mandate of the armed forces in Germany. Internal Emergency, Article 87a, Paragraph 4 of the Basic Law The internal emergency is set out in Article 87a, paragraph 4 of the Basic Law: An internal emergency is defined as a danger to the existence of the free democratic basic order of the Federation of Germany or one of its federal states. (Hertwig 2012: 113–116; Kloepfer 2011: § 28 Rn 37). To avert this imminent danger, the individual state or the government may request police forces from other countries, as well as the personnel and facilities of other administrations like the federal police and the armed forces according to Article 87a of the Basic Law. The deployment of the Bundeswehr inside Germany here is subject to two conditions. According to Article 91 paragraph 2 of the Basic Law, if the Land in which such danger is imminent is not itself willing or able to combat the danger. In addition to that, it is assumed that police forces alone are not sufficient to combat the threat effectively. Of special importance here is that the armed forces may be used only to support the police. Operational areas intended by the constitution are the protection of civilian property, traffic control functions and the support the ­police and the Federal Border Police in combating organised armed ­insurgents. ­(Isensee / Kirchhof 2006: § 84 Rn 60; Hertwig 2012: 113–116; Kalla 2015: 5; Kloepfer 2011: § 28 Rn 56). Could a Terrorist Attack be a Case of Internal Emergency? Yes, namely when it represents a grave accident according to Article 87a paragraph 4 of the Basic Law.17

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Bundeswehr (2016-02-22): Auftrag und Aufgaben – url: http://www.bundeswehr.de/ portal/a/bwde/!ut/p/c4/DcLBDYAwCADAWVwA_v7cQvujlhLSBg1Su77mDhP-jF4 VCr2MOu54nLrmCXkWhiecNZoT12AQH1Y6CRvQqOEkeLdt-QDDPuoC/. Different opinions in the jurisprudence: Thiel 2011: 358; Stefan Middel, „Präventive Terrorismusbekämpfung nach den Anschlägen vom 11. September‟, in Jahrbuch Öffentliche Sicherheit 2008/2009, 153, 168; Matthias Spranger, “Einsatz der Streitkräfte zur Abwehr terroristischer Bedrohungen im Luftraum”, in Dieter Fleck (ed), Rechtsfragen der Terrorismusbekämpfung durch Streitkräfte (Nomos 2004 Baden-Baden) 183–200.

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In 2012, however, the Federal Constitutional Court (BverfGE 2 PBvU 1/11) set very high thresholds for the application of such a situation. Such an especially serious accident, as it is understood by the Federal Constitutional Court, is an "unusual exceptional situation with catastrophic implications”. In this case, the Bundeswehr could be used to support the police and apply police resources. Military means and weaponry are generally excluded and may only be used in an absolute crisis. Principally, no higher equipment than that of the local police forces is provided in these cases. Only if the democratic order or the existence of the Federal Republic of ­Germany is in immediate danger can the Bundeswehr be used to protect ­civilian objects and key infrastructure (schools, train stations, airports, central water supply etc.) and to combat so-called insurgents with specific military weapons. Besides that, the above mentioned conditions of Article 87a paragraph 4 of the Basic Law must also be met. (Gareis 2014 1: 104; Gramm/Pieper 2015: 234; Spranger 2004: 192; Wieland 2004: 175–176) Therefore, the assistance is limited to technical assistance such as accommodation, catering and transport and includes any legal work. (Hertwig 2012: 134) According to the intention of the Basic Law and also to the judgments of the German Constitutional Court, the use of armed forces within the country shall be restricted to exceptional situations. Only in exceptional cases like natural disasters or a grave accident and, in addition, only if the police forces alone are not sufficient to combat the threat effectively. (Gramm/Pieper 2015: 232)

Rights and Liberties versus Security The war on terrorism poses severe challenges to the democratic state, including destabilizing the moral community, weakening democratic values and civic culture, undermining the legitimacy of democratic ­institutions, and preventing the articulation of potentially more effective counter-terrorism approaches. jackson 2005: 147

Are people prepared to give up certain freedoms in order to increase personal security? According to a recent survey the majority of people in Germany (­Köcher in faz 2016-02-17) believe that the security forces should be given more ­investigative powers to combat terrorism, even if this means that privacy or civil rights are limited. As a consequence of this they also support the deployment of soldiers inside Germany, especially to protect sensitive buildings and key infrastructure or endangered persons like politicians.

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But how much of one’s individual freedom shall be sacrificed in the name of security? What is the level of basic security that enables human freedom? (Bruha/Claaszen 2009: 85; Riescher 2010: 12; Weinberg 2013: 89). One fundamental duty of a state is to provide security to its citizens. The willingness of people to refrain from the individual use of force and to transfer it to the sovereign state and its institutions constitutes a basic principle of a modern state. The monopoly of power is transferred to the state. (Riescher 2010: 14–15, Reding et al. 2014: 16). This task includes two parts: First of all the active development of institutions and forms of organization in a democratic state to establish security. This also includes the continuous development and monitoring of these institutions and its employees. Secondly the task encompasses the duty of the state to create a judicial system that gives every citizen the opportunity to take action against state acts. Consequently, this system of protection from state interference must also be monitored. Seeing that the power of the state is limited first of all by the separation of powers into the executive, the legislative and the judicial power, abuse should also be prevented by controlling the three forces: by binding the state authority to the rule of law and limiting the authority through legislative periods. The rule of law and human rights guarantee the freedom of each i­ndividual. Fundamental rights in a democracy simultaneously mean repressing the state from the sphere of personal privacy. (Möllers 2014: 151; Oppel 2010: 25–26; ­Riescher 2010: 16) A liberal state, according to John Locke, should do everything to guarantee its citizens a free and secure life, physical integrity, freedom and security. In his model of an ideal state, the state authority is bound to the positive law and is limited by the separation of powers. (Isensee 1983: 6) The protection against crime and terrorist attacks is part of government responsibility. The desire for security justifies by the regulative idea of the social contract, the necessity of the state. People join up for mutual protection of their lives, their freedom and their assets in a polity and submit to a government. Accordingly legal protection and security are a necessary element of the legitimacy of state authority. limbach 2013: 1

Negative freedom is defined as “freedom from” – as freedom from interference. For citizens in a democratic state, this means the freedom of each citizen from the state, guaranteed by the rule of law, human rights and the separation of

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powers. Positive freedom is understood as a right of co-determination and a participation right. (Isensee 1983: 22–23; Riescher 2010: 17). Enabling negative freedom requires governmental restraint. Governmental action here is limited by the constitution and the law. Security on the other hand needs action. The protection against threats requires an active state. As a consequence a protecting state monitors, searches, controls, stores data, interrogates and arrests if necessary in the name of protection against threats. (Riescher 2010: 20) These two concepts of positive and negative freedom are always in tension with each other. That being stated, the enabling of negative freedom also requires the confidence of citizens in the state, its institutions, actions and control mechanisms. Apparently, it is convenient for political leaders who wish their people to rally behind their plans to find measures and means accepted by at least most of the people. (van Baarda 2009: 26; Würtenberger/Tanneberger 2010: 101). Furthermore, politicians also depend on their voters and re-elections, so their actions are not only influenced by rational thinking and considerations of what the best solution could be. (Gusy 2004: 16; Oppel 2010: 32). Different Tasks of the Different Security Forces Armed forces and the police have a different purpose and also different areas of operation. Armed forces are trained for the external defence of a state and for the use of maximum force or defence in the face of major firepower. (Wilkinson 2006: 70). The main burden of containing and defeating terrorism beside the intelligence services in liberal democracies like Germany is carried by the police forces. The countermeasures appropriate for the police in counterterrorism are closely analogous to those required for combating other serious crimes of violence and organized crime. However, the tasks involved require an extensive knowledge of the modus operandi, weaponry and tactics of the terrorist groups involved, together with a range of resources and specialised knowledge and training. (Wilkinson 2006: 77). Keeping in mind that police forces have the task to ensure security within the German territory, the police are the executing body of safeguarding and protecting the rights and freedom of the citizens. Preventive measures against criminal acts and the prosecution and investigation of committed crimes are the main responsibilities of all internal security agencies, including the police. A central point of these ­endeavours is the preservation of evidence. In this regard, the use of weapons is ultima ratio; prosecution and investigation are prioritized over the use of weapons.

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In addition to their investigative tasks, the police are in charge of the protection of sensitive infrastructure such as governmental buildings, train stations, airports, electricity and water supply into the sphere of action. In comparison to the police forces, the armed forces have a distinct scope of action: they ensure external security. Whereas the police forces have the task to safeguard security and protection for the citizens within the national boundaries, the armed forces have the duty of guaranteeing the protection of Germany. The Bundeswehr is an instrument of a comprehensive and proactive security and defence policy. It guarantees the capacity for action in the field of foreign policy, maintains national security and defence, provides assistance in the defence of their allies and fosters multinational cooperation and integration. (Bundesministerium der Verteidigung; Gareis 2014 1: 96). Considering the missions and operations in extremely dangerous environments such as ceasefires and combats or in regions of unstable social and ­political order, strategic considerations and actions in battles are highly relevant. In contrast to the police forces, the perseveration of proof is not a main priority. Preservation of proof is mainly employed in order to provide a security of right and lawful action in battle. In accordance with their different purposes, the training of the army and the police forces also focuses on different tasks. Nevertheless, the advantages of deploying the army inside Germany to combat terrorism shall be depicted: A possible excessive demand on the resources of the police forces cannot be excluded due to the terrorist threat. However, the Bundeswehr has equipment and weaponry that could be used to combat a terrorist threat effectively. wieland 2004: 179

The Bundeswehr has proved itself since its foundation in 1955 as an armed ­power in the democracy. The primacy of politics over the military is undisputed. (Wieland 2004: 179). Another major advantage results from the human capability reserves  of the  armed forces. If necessary, a great number of soldiers can be quickly mobilized. Moreover, the presence of soldiers gives the population the feeling of ­security in cases of great disasters or incidents. In this sense the soldier represents the executing body of the government and therefore personifies order, ­protection and an authority equipped and trained personally to protect and defend citizens against great criminal incidents.

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Armed forces on the streets, especially shortly after an attack, answer inevitable public and media demands. Society also demands for tough action against perpetrators. (Wilkinson 2006:90–91) The obvious visibility satisfies the security needs of the population and leads to a greater satisfaction of the subjective sense of security. Deploying of the army in the interior can support overburdened internal security agencies in terms of man power and equipment. Another assumption is that inflicting a large number of casualties among the terrorists offers a chance of deterring further attacks and sponsorship. This offers the possibility of conveying the deterrence message to a wider range of potential terrorists internationally. (Wilkinson 2006: 90–91) Even if the alleged effect of deterrence would have an impact on the terrorists, taking (many) lives could never be an objective or part of a strategy of a democratic state bound by legal principles. The disadvantages of deploying the army inside Germany to combat terrorism also need to be taken into account: The deployment of the armed forced in the domains of the police f­ orces does not provide any objective advantage deriving from the soldiers’ ­abilities, hence internal missions and operations mainly serve to enhance the trust of the citizens in the government’s ability to manage crises provide security to its citizens. In addition, the deployment of the armed forces within national borders would be a first, because armed forces have never been deployed within internal borders as a consequence of the Nazi regime. It is highlighted in the German ­constitution that the scope of action of the armed forces is first and foremost external defence, and for that reason it has solely operated in the external realm. An internal deployment of the armed forces would mean a reordering of the responsibilities of the armed forces and of the separation of power defined in the constitution. “In many cases of terrorist attack it is extremely difficult to obtain sufficient high-quality intelligence to determine with certainty the identity of the perpetrator responsible for the attack”. (Wilkinson 2006: 91) Therefore, well-­ educated and specially trained investigators are necessary. If a deployment of soldiers with military weapons causes the death of innocent civilians, this carries the risk of losing the moral high ground and the sympathy of international opinion. (Wilkinson 2006: 91) A military reprisal and the presence of (a huge amount of) soldiers may arouse false and exaggerated expectations among the general public of ­success in defeating terrorism and lead to expectations of similar or intensified ­military

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action next time. Lastly, a military attack could provoke a wider conflict even within a state. (Wilkinson 2006: 91) In my opinion, the disadvantages outweigh the advantages. Furthermore, the security system in Germany is well-established and functioning. Of course there is room for improvement and in some cases need for improvement, but the organization and division of responsibilities and tasks in the field of the security sector as such must not be touched. Principle of Proportionality Due to the fact that a state is responsible for the security of its citizens, decisions sometimes need to be taken that infringe fundamental rights. The challenge here is to the keep balance between rights and security. The restrictions of these rights need to be under critical supervision, limited in time and only to that extent that is really necessary. (Bruha/Claaszen 2009: 84; Smith 2009: 409) Leading questions are: Is the measure justified? Is it tailored? Is it proportionate? Is it non-discriminatory? The principle of proportionality comprises certain steps, namely: – there must be a legitimate aim for a measure; – the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect); – the measure must be necessary to achieve the aim, that there cannot be any less onerous ways of doing it; – the measure must be reasonable, considering the competing interests of different groups at hand. gramm/pieper 2015: 62–63, isensee/kirchhof 2006: § 77, Rn. 92; schwetzel 2007: 10018

The balance which has to be struck between civil liberties and national security needs to be assessed every time action is about to be taken, a new legislation is debated or adopted, security measures are aggravated – not only by parliament and politicians themselves but also by society. In addition to governmental control mechanisms, a debate within the society is also desirable and necessary. However, this balance appears as a dichotomy, where a strengthening of powers of the domestic security services will inevitably lead to a decrease of civil liberties and vice versa. (Smith 2009: 412–413; van Baarda 2009: 26) Governmental security measures will always violate or at least diminish individual civil and human rights to a certain extent. 18

Federal Constitutional Court Germany: BVerfGE 3 (1954): 383, 399.

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The sharpening of security measures through widespread enforcement powers for national institutions and security forces, for example, and the priority of security in times of fear comprises the risk of disproportionate infringement of rights and liberties compared to the level of security achieved. (Smith 2009: 402). The leading question is: What degree of freedom and what degree of security shall be implemented? Undeniably: freedom cannot be achieved without security. It requires a certain level of security to be able to live in freedom.19 And vice versa: Security without freedom could lead in a police state. (Arnauld/Staack 2009: 9, 11; Gramm/Pieper 2015: 208; Würtenberger/Tanneberger 2010, 105). States that prioritize security while undermining freedom and rights in the name of combating terrorism will have an undermining effect. (Large 2004: 143; Oppel 2010: 26; Smith 2009: 409; Weinberg 2013: 96–97) “The promotion of democracy, justice and human rights will, in long term, prove to be a more powerful weapon against terrorism.” (Martin 2003: 90) .

To effectively undercut the basis of support for terrorist activity, any liberal democratic response must rest on one overriding principle: a commitment to uphold and maintain constitutional systems of legal a­ uthority. In instances where the state fails to abide by this fundamental dictum, counter-terrorist responses run the very grave risk of posing even more of a danger to underlying liberal and democratic norms and institutions than extremist political violence itself. large 2004: 147

Individual rights and freedoms on the one hand and security on the other hand reinforce one another. The need for limiting human rights to strengthen ­security in times of fighting terrorism may have a dangerous boomerang effect (Roth 2004, 114; Smith 2009, 406), especially when measures of c­ ounterterrorism do not mean a short or at least foreseeable period of time but in fact several years or decades. Arguing as a state with high standards of democracy, human rights, liberty and rule of law while simultaneously limiting those rights for the fight against terrorism is first of all contradictory and may also generate new terrorist recruits. (Roth 2004, 114–116; Khan 2003, 5–6).

The Problem of Subjective Security – Sense of Security as a Vague, Subjective Feeling In the field of combating terrorism, states are confronted with various dilemmas. Politicians have to deal with a potential threat that is difficult to assess.

19

Federal Constitutional Court Germany: BVerfGE 115 (2006): 320, 374.

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How realistic is the danger and how reliable are threat analyses? (Riescher 2010: 20). Besides that, the state has to deal with the fears and the anxiety of the population. Surveys carried out have shown that public fears of terrorism have ­increased in recent years in Germany. (Kötter 2004: 371; Klöcker 2009: 135; Göttler 2010: 47) Therefore, the perception of (terrorist) threats needs to be taken seriously by the state and also of course the fear of terrorist attacks. However, risk calculation of terrorist attacks assumes a probabilistic risk assessment of a latent, relatively abstract threat. Democracies face acute dilemmas when confronting acts of violence which fall under the rubric of terrorism. Overreaction can alienate the population, damaging government legitimacy as much as (or more than) the actions of small terrorist groups. At the same time, if government, judiciary, police and military prove incapable of upholding the law and protecting life and property, then their credibility and authority will be undermined. large 2004: 140

Threat as a human emotion is normally perceived as far greater than the actual extent is in reality. (Hassemer 2009: 51; Peters/Schütz 2002: 40) States and politicians are in the difficult situation of keeping a sensitive balance in their actions between security and the rights and liberties of their people. Fear is considered as a threat that cannot be defined precisely, it is a feeling of general uncertainty. (Arnauld/Staack 2009: 17-17; Glaeßner 2002: 5; Göttler 2010: 48; Oppel 2010: 31, 39). Terrorist attacks are often presented and perceived by the government as an existential threat to the state, its institutions and inhabitants that calls for “hard” and “harsh” reaction. The wording often is martial/warlike. “We must be relentless. France is at war.” (SPIEGEL ONLINE 2015-11-17) “Military approaches to counter-terrorism can allow society to internalize war as a norm instead of an exception, and brings the danger of militarism.” (Hirsch 2009: 71; Satana 2013, 140). It is aggravating that terrorists take advantage of these fears. Generating fear and insecurity in large sections of the population is a part of their strategy. (Klöcker 2009: 22). Safety or an absolute sense of security cannot be established. A residual uncertainty always remains. This accepted as a fact, it should have an impact on political decisions and actions. The achievements of liberal democracy like

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freedom and human rights should not be unnecessarily or unreasonably restricted for the satisfaction of the subjective sense of security. Moreover, the fear of terrorism or other security threats pose an enormous challenge for the state. It must respond to the anxiety of the population, guarantee its security and also keep the balance between security and individual rights. Terrorism as a threat factor is hard to comprehend but it is real and omnipresent. (Arnauld/Staack 2009: 17; Göttler 2010: 60). It is a challenge for each state to strengthen the sense of security of its citizens, to be perceived as a defensive democracy and not to infringe individual freedoms and fundamental rights in an extensive manner. (Göttler 2010: 56–57; Isensee 1983: 26; Würtenberger/Tanneberger 2010: 98). If a counterterrorism policy primarily involves supporting and strengthening the security sector while restricting individual rights, one of the effects of terrorism is that democracy turns against itself. The strengths of a democracy also represent their weaknesses in combating terrorism. (Oppel 2010: 32; Schmid 1993: 18–19; Schwetzel 2007: 99). There are quite pragmatic reasons why states should not abandon liberal democratic values and practices: “To alter one’s government in response to a terrorist threat is to concede a victory to the adversary. It is to pass on the opportunity to demonstrate the strength of our commitment to the rule of law and to model the behaviour we advocate for others.” (Richardson 2007: 206) If a state is prepared to abandon its democratic principles as soon as it is threatened, it could lead to the impression that this state has double standards. ­(Oppel 2010: 31; Richardson 2007: 207). Abandoning or infringing on basic democratic principles like the rule of law and individual human rights also harms the reputation of the state and has an effect on the Muslim communities around the world. Images of Abu Ghraib, Guantanamo could lead to more alienated, angry young Muslims being recruited by terrorists. In other words, these violations of the rule of law and basic democratic principles by a leading democracy are not only morally and legally wrong; they are ultimately a gratuitous weapon for the terrorist movement. (Arnauld/Staack 2009: 22; Wilkinson 2006: 64). Of course the dangers and risks involved in the fight against terrorism by the state may not be underestimated. Meeting them effectively is not only important but also requires preventive action. (Arnauld/Staack 2009: 29). Each State should balance and consider its actions in the field of security policy very exactly. The somehow timeless and abstract threat of terrorism should not lead to general justification of such acts: “Democratic constitutions do allow some suspension of rights in states of emergency. Thus rights are not

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always trumps. But neither is necessity. Even in times of real danger, political authorities have to probe the case that abridgements of rights are justified.” (Ignatieff 2004: 2). Even states of emergency do not allow suspending fundamental civil and human rights and democratic control mechanisms. Of course politicians need to act very quickly in those situations, “but eliminating these kinds of mechanisms is a further and unacceptable step, because they serve the interests of the majority and respect the rights and liberties of individuals.” (Smith 2009: 408–409). The current challenge for governments is to deal with the terrorist threat and provide security in such a manner which upholds democratic principles of accountability, rights, checks and balances and the rule of law. (Arnauld/ Staack 2009: 29; Riescher 2010: 22; Large 2004: 141).

Plea for Not Contracting Security Forces and the Army in Germany

The separation of duties of the German security forces and the Bundeswehr is in my opinion not only convincing due to our historical experience during the Nazi era but also regarding the different purpose and training of the respective forces. The national police and security forces in Germany are responsible for ensuring security and order in the state and to investigate and prosecute crimes. The tasks and missions of the Bundeswehr, however, are different. They encompass national defence and international conflict prevention and crisis management. The investigation and defence of crimes is not included in the original mandate of the armed forces in Germany. To ensure a successful fight against terrorism in Germany, effective cooperation among all security agencies is essential. The exchange of information and knowledge is necessary for the protection against threats. This refers to the relationship between the Federation of Germany and its single federal states as well as to the relationship among the states. International cooperation and collaboration are an absolute necessity. (Bruha/Claaszen 2009: 83–84; Gramm/ Pieper 2015: 213). We need to concentrate more on comprehensive and specialized training for security forces to deal with terrorism, not only in technical terms. This training should also encompass ethical education and the strengthening of intercultural competence: Who are we fighting against and why? And what are we fighting for? What are the values we want to defend? Where did these values come from? Beside that we need to make more (intensive) efforts in sensitization and training against the discrimination and humiliation of certain groups.

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Otherwise, as a society we will risk creating “more fear, more distrust, a stronger feeling of insecurity, the enlargement of prejudgements, and (indirectly promoted) discrimination”. (Smith 2009: 416; see also: Jackson 2005: 154, Khan 2003: 5–6) Best shown in the high and increasing numbers of right-wing offences and the also rising popularity of Pegida demonstrations and parties like the afd in Germany. Dealing with sensitization and training of security forces, ethical training needs to be fostered. The challenge in ethical education is to combine theory and practice, or rather to make abstract theory accessible and applicable to soldiers. This requires a translation of values and principles into actions and decisions. Soldiers on deployment have a particularly great desire for practical and p ­ racticable teaching content. However, ethics or moral behaviour cannot be learned like a mathematical formula. Instead it is necessary to apply theoretical learning repeatedly in practical situations (Elßner 2009:94) until this accumulated practice provides a reliable framework for actions and decisions in similar situations. “The capacity to perceive, think and act morally needs to be acquired over the course of a lifetime and constantly enhanced.” (Bock 2013: 42; Kenngott 2011: 217; ­Ebeling 2006: 13). Ethical education can only succeed if purely instructive teaching methods are avoided (Bendel / Suermann 2013: 343), and instead a course is offered which encourages dialogue and discussion (Pfeifer 2003: 34, 35), with a variety of methods appropriate to the target group (such as exercises, seminars, discussion and role-play) and extensive teaching materials. The aim here is to enable participants to identify a moral problem in a situation and to form a judgment with the aid of reasoning processes. Acquisition of ethical ­competence also involves “awareness, to understand that one is challenged by a moral problem and the motivation to act according to the moral judgment”. (Bock 2013: 42, 43; Wilke 2011:97; Kruip & Winkler 2010: 26). Ethical education should therefore develop people’s cognitive skills so that they can make moral judgments, and in addition promote emotional skills to cultivate the motivation to act according to this moral judgment (Pfeifer 2003: 35–37). In view of the complexity of counter-terrorism operations, practical wisdom of security operators gains more and more importance in the sense that these forces have to learn to think more in the language of humanities instead of the contemporary techno-centric way. Ethical training should focus on imagination, judgement-skills and identity development. (Toiskallio 200: 265; van Baarda 2009: 23).

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Especially in an area which could be affected by prejudices and undifferentiated opinions, the field of training and in-service training in ethics and intercultural competence must be fostered. As it has been said before, combating terrorism requires a multi-level approach of all affected institutions. Besides, some key elements are to be considered. The following listing has been written by Paul Wilkinson and further complemented by the author: As already mentioned – keeping the balance between rights and liberties and security is necessary: Overreaction and general repression by government could destroy a democracy far more rapidly and effectively than any campaign by a terrorist group. On the other hand under-reaction – the failure to uphold the constitutional authority of the government and the law – will lead to the general threat of lapsing into anarchy in the worst case, or the emergence of no-go areas dominated by terrorists. The government and security forces must at all times act within the law. Respecting democratic principles, especially the rule of law and the rights and liberties of individuals, is not only a precondition for a democratic state but also part of its power. If it fails to do this, it will undermine its democratic legitimacy and public confidence in, and respect for, the police and criminal justice system. A state thereby does not become defenceless while respecting democratic principles and the rule of law, principles that honour a democratic state. An important prerequisite of winning the battle against terrorism in an open democratic society is winning the “intelligence war”: this will enable the security forces, using high-quality intelligence, to be proactive, thwarting terrorist conspiracies before they happen in the best case. The secret intelligence agencies and all the other institutions involved in combating terrorism must be firmly under the control of the elected government and fully accountable to it. If emergency laws are found to be needed in a particularly serious terrorist conflict the laws must be temporary, subject to frequent review by parliament and subject to parliament’s approval before any renewal. (Baum 2009: 35, 38; Bruha/Claaszen 2009: 108–109; Hirsch 2009: 75; Klöcker 2009: 98; Möllers 2014: 187; Wilkinson 2006: 61–62). Considering the disadvantages and the fact that instruments to deploy the armed forces in Germany in special situations and crises already exist, my argument is to deploy alternatives and to leave the separation of internal and external security forces untouched.

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First of all, at the moment the German police forces are understaffed in many areas. In contrast to granting the armed forces additional powers and deploying soldiers within national borders, I propose to expand the manpower of police and security forces. This would also facilitate a second key suggestion, namely, an increased presence of police and security forces (and other institutions like youth welfare service, social workers and so on). The so-called “Kontakt-Beamte” shall be a “policeman to touch”. They are responsible for and maintain contact with the population in the context of grassroots presence, they are visible and accessible for general information and advice. On the one hand, trust in the police and in the security forces can be r­ estored with the help of these measures, and on the other hand, police and security forces may become more sensitive for “what is happening” and for the changes in certain districts and areas of the city. In addition, the fight against terrorism demands for new methods of training of police and security staff. This also needs to be on a regular basis. All G ­ erman institutions should work together more closely and exchange i­nformation on best practises. Sharing information on (potential) terrorists and their crossborder movements should be further facilitated. Moreover, training of police and security personnel needs to be adapted to cope with the new challenges resulting from terrorist attacks. How should suicide bombers or terrorists be dealt with and what are potential ways to stop them? How can panic after a terrorist attack be prevented? How can police and security staff contribute to re-establishing “everyday life” after a terrorist attack? A current major failing in the combat of terrorism is the limited cooperation of different security and intelligence institutions in Germany as well as with foreign security and intelligence bodies. An increased sharing of information between police and security forces and intelligence agencies, both nationally and internationally, is essential. Sharing and exchanging data on potential terrorists or potential terrorists – what they do, where they are located, what people they meet and where they travel to – can be decisive in preventing planned terrorists attacks. References von Arnauld, Andreas and Michael Staack, “Sicherheit versus Freiheit?” in Andreas von ­Arnauld and Michael Staack (eds), Sicherheit versus Freiheit? (Berliner Wissenschaftsverlag 2009) 9–29.

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van Baarda, Ted, “The Moral Dimension of Asymmetrical Warfare – an Introduction”, in van Baarda, Ted and D.E.M. Verweij (eds), The Moral Dimension of Asymmetrical Warfare. Counter-terrorism, Democratic Values and Military Ethics (Brill 2009) 1–28. Baum, Gerhart, “Im Spannungsfeld von Freiheit und Sicherheit”, in Andreas von Arnauld and Michael Staack (eds), Sicherheit versus Freiheit? (Berliner Wissenschaftsverlag 2009) 31–38. Bendel, Lothar und Manfred Suermann, “Der Lebenskundliche Unterricht als ­Lernort ethischer Reflexion” in Thomas Bohrmann, Karl-Heinz Lather and Friedrich ­Lohmann (eds), Handbuch Militärische Berufsethik. Band 1 Grundlagen (Springer 2013) 333354. Bock, Veronika, “Der Soldat als moralischer Akteur” in Thomas Bohrmann, Karl-Heinz Lather and Friedrich Lohmann (eds), Handbuch Militärische Berufsethik. Band 1 Grundlagen (Springer 2013) 35–52. Bruha, Thomas and Christina Claaszen, “Sicherheit und Freiheit im internationalen Kampf gegen den Terrorismus”, in Andreas von Arnauld and Michael Staack (eds), Sicherheit versus Freiheit? (Berliner Wissenschaftsverlag 2009) 83–115. Ebeling, Klaus, Militär und Ethik. Moral- und militärkritische Reflexionen zum Selbstverständnis der Bundeswehr (Kohlhammer 2006). Elßner, Thomas R., “Stärkung ethischer Grundlagen in der Bundeswehr” in: Militärseelsorge (2009, vol 47) 93–98. Gareis, Sven Bernhard 1, “Die Organisation deutscher Sicherheitspolitik. Akteure, Kompetenzen, Verfahren und Perspektiven”, in Stephan Böckenförde und Sven Bernhard Gareis (eds), Deutsche Sicherheitspolitik. Herausforderungen, Akteure und Prozesse (2nd edn, Verlag Barbara Budrich 2014a) 89–112. Gareis, Sven Bernhard 2, “Militärische Beiträge zur Sicherheit”, in Stephan Böckenförde und Sven Bernhard Gareis (eds), Deutsche Sicherheitspolitik. Herausforderungen, Akteure und Prozesse (2nd edn, Verlag Barbara Budrich 2014b) 115–145. Glaeßner, Gert-Joachim, “Sicherheit und Freiheit” in: APuZ. Aus Politik und Zeitgeschichte (2002, vol 10–11) 1–11. Göttler, Felix, “Angst, Staat und Terrorismus. Der Bürger zwischen zwei Bedrohungen” in Gisela Riescher (ed), Sicherheit und Freiheit statt Terror und Angst. Perspektiven einer demokratischen Sicherheit (Nomos 2010) 47–68. Gramm, Christof and Stefan Pieper, Grundgesetz. Bürgerkommentar (3rd edn, Nomos 2015). Gusy, Christopher, “Geheimdienstliche Aufklärung und Grundrechtsschutz” in: APuZ. Aus Politik und Zeitgeschichte (2004, vol 44) 14–20. Hassemer, Winfried, “Freiheit und Sicherheit am Beispiel der Kriminalpolitik”, in Andreas von Arnauld and Michael Staack (eds), Sicherheit versus Freiheit? (Berliner Wissenschaftsverlag 2009) 39–56. Hertwig, Jana, “Staatsnotstandsrecht in Deutschland” in Andrej, Zwitter (ed), Notstand und Recht (Nomos 2012) 111–159.

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Hirsch, Burkhard, “Recht zur vorsätzlichen Tötung Unschuldiger?” in Andreas von Arnauld and Michael Staack (eds), Sicherheit versus Freiheit? (Berliner Wissenschaftsverlag 2009) 57–76. Ignatieff, Michael, The Lesser Evil. Political Ethics in an Age of Terror (Princeton Press 2004). Isensee, Josef, Das Grundrecht auf Sicherheit. Zu den Schutzpflichten des freiheitlichen Verfassungsstaates (De Gruyter 1983). Isensee, Josef and Paul Kirchhof, Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band IV Aufgaben des Staates (3rd. edn, C.F. Müller 2006). Jackson, Richard, “Security, Democracy, and the Rhetoric of Counter-Terrorism” in: ­Democracy and Security (2005, vol 1, Issue 2) 147 –171. Kalla, Carsten, “Inlandseinsätze der Bundeswehr. Brauchen wir eine Verfassungsänderung?” (Bundesakademie für Sicherheitspolitik – Arbeitspapier Sicherheitspolitik Nr. 11/2015) https://www.baks.bund.de/sites/baks010/files/arbeitspapier _sicherheitspolitik_11_2015.pdf. Kenngott, Eva-Maria, “Ethik im Unterricht“ in Ralf, Stoecker, Christian Neuhäuser and Marie-Luise Raters (eds), Handbuch Angewandte Ethik (J.B. Metzler 2011) 215–218. Khan, Irene, “Security for Whom?” (2003) . Klöcker, Katharina, Zur Moral der Terrorbekämpfung. Eine theologisch-ethische Kritik (Gründewald 2009). Kloepfer, Michael, Verfassungsrecht Band I. Grundlagen, Staatsorganisationsrecht, Bezüge zum Völker- und Europarecht (C.H. Beck 2011). Köcher, Renate, “Allensbach-Umfrage. Die diffusen Ängste der Deutschen”, FAZ. Frankfurter Allgemeine Zeitung (Frankfurt, 17 February 2016) . Kötter, Matthias, “Subjektive Sicherheit, Autonomie und Kontrolle. Eine Analyse der jüngeren Diskurse des Sicherheitsrechts” in: Der Staat (2004, vol 43) 371–398. Kruip, Gerhard and Katja, Katja Winkler, “Moraltheologische, entwicklungspsychologische und andragogisch-konzeptionelle Grundlagen ethischen Lernen” in Helge, Gisbertz, Gerhard Kruip and Markus Tolksdorf (eds), Ethisches Lernen in der allgemeinen Erwachsenenbildung (Bertelsmann 2010) 15–55. Large, Judith, “Democracy and Terrorism: The Impact of the Anti” (2004), International IDEA . Limbach, Jutta, “Ist die kollektive Sicherheit Feind der individuellen Freiheit?” ZEIT ONLINE (Hamburg 21 December 2013) . Malthaner, Stefan and Peter Waldmann, “Terrorism in Germany: Old and New Problems”, in Marianne van Leeuwen (ed), Confronting Terrorism. European Experiences, Threat Perceptions and Policies(Kluwer Law International 2003) 111–128.

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Martin, Kate, “Secret Arrests and Preventive Detention”, in Cynthia Brown (ed), Lost Liberties. Ashcroft and the Assault on Personal Freedom (The New Press 2003) 74. Möllers, Martin H.W., “Innenpolitische Dimensionen der Sicherheitspolitik”, in ­Stephan Böckenförde und Sven Bernhard Gareis (eds), Deutsche Sicherheitspolitik. Herausforderungen, Akteure und Prozesse (2nd edn, Verlag Barbara Budrich 2014) 149–197. Oppel, Pia, “Terrorismusforschung heute: Abwägungen zwischen Freiheit und Sicherheit angesichts terroristischer Bedrohungen” in Gisela, Riescher (ed), Sicherheit und Freiheit statt Terror und Angst. Perspektiven einer demokratischen Sicherheit (Nomos 2010) 25–45. Pfeifer, Volker, Didaktik des Ethikunterrichts. Wie lässt sich Moral lehren und lernen? (3rd edn, Kohlhammer 2003). Reding, Anaïs, Anke van Gorp, Kate Robertson, Agnieszka Walczak, Chris Giacomantonio and Stijn Hoorens (2014), “Handling ethical problems in counterterrorism. An inventory of methods to support ethical decision-making” (2014) RAND Europe Research Paper . Richardson, Luise, What Terrorists Want. Understanding The Enemy. Containing The Threat(Random House 2007). Riescher, Gisela, “Demokratische Freiheit und die Sicherheit des Leviathan” in Gisela Riescher (ed), Sicherheit und Freiheit statt Terror und Angst. Perspektiven einer demokratischen Sicherheit (Nomos 2010) 11–24. Roth, Kenneth, “The fight against terrorism. The Bush Administration’s Dangerous Neglect of Human Rights”, in Thomas G. Weiss, Margaret E. Crahan and John ­Goering (eds), Wars on Terrorism and Iraq. Human Rights, Unilateralism and U.S. Foreign Policy (Routledge 2004) 113–132. Satana, Nil, “Discussion Point: Counterterrorism Strategies and Democracy: Lessons for the US from the (Unfortunate) Example of Turkey” (START National Consortium for the study of terrorism and responses to terrorism, 31 May 2013) . Schmid, Alex P., “Terrorism and Democracy”, in Alex P. Schmid and Ronald D. C ­ relinsten (eds), Western Responses to Terrorism (Frank Cass 1993). Schütz, Holger and Hans Peter Peters, “Risiken aus der Perspektive von Wissenschaft, Medien und Öffentlichkeit”, APuZ. Aus Politik und Zeitgeschichte (2002, vol 10–11) 40–45. Schwetzel, Wolfram, “Freiheit, Sicherheit, Terror. Das Verhältnis von Freiheit und ­Sicherheit nach dem 11. September 2001 auf verfassungsrechtlicher und einfachgesetzlicher Ebene” (Verlag Vahlen 2007). Smith, Wim, “Security versus Liberty?: Ethical Lessons from Post-9/11 American Counter Terrorist Security Politics”, in Ted van Baarda and D.E.M. Verweij (eds),

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The M ­ oral Dimension of Asymmetrical Warfare. Counter-terrorism, Democratic Values and Military Ethics (Brill 2009) 401–418. SPIEGEL ONLINE, “Zunahme der Gewalt: Fast 50 rechte Straftaten pro Tag” ­(SPIEGEL ONLINE, 13 October 2015a) . SPIEGEL ONLINE, “Präsident Hollande: ‘Frankreich ist im Krieg’” (SPIEGEL ONLINE, 17 November 2015b) . Spranger, Matthias, “Einsatz der Streitkräfte zur Abwehr terroristischer Bedrohungen im Luftraum”, in Dieter Fleck (ed), Rechtsfragen der Terrorismusbekämpfung durch Streitkräfte (Nomos 2004 Baden-Baden) 183–200. Thiel, Markus, “Die Entgrenzung der Gefahrenabwehr: Grundfragen von Freiheit und Sicherheit im Zeitalter der Globalisierung” (Mohr Siebeck 2011 Tübingen). Weinberg, Lenard, “Democracy and terrorism. Friend or foe?” (Routledge 2013). Wiefelspütz, Dieter, “Die Abwehr terroristischer Anschläge und das Grundgesetz” (Verlag für Polizeiwissenschaften 2007 Frankfurt). Wieland, Joachim, “Verfassungsrechtliche Grundlagen polizeiähnlicher Einsätze der Bundeswehr”, in Dieter Fleck (ed), Rechtsfragen der Terrorismusbekämpfung durch Streitkräfte (Nomos 2004 Baden-Baden) 167–181. Wilke, Carl Mathias, “Überlegungen zur Gewinnung ethischer Handlungssicherheit”, in Hans-Christian Beck, Christian Singer (eds), Entscheiden Führen Verantworten. Soldatsein im 21. Jahrhundert (Miles 2011 Berlin) 95–99. Wilkinson, Paul, “Terrorism Versus Democracy. The Liberal State Response” (2nd edn, Routledge 2006). Würtenberger, Thomas and Steffen Tanneberger, “Sicherheitsarchitektur als interdisziplinäres Forschungsfeld”, in Gisela Riescher (ed), Sicherheit und Freiheit statt Terror und Angst. Perspektiven einer demokratischen Sicherheit (Nomos 2010) 97–125.

Chapter 7

Understanding Core Values: Observations on the British Military Benjamin Grove-White This love that motivates men to do the most touching, brave, selfless things for their brothers … Not the lover’s love of egos and nurturing and selfishness. It’s purer than that, deeper than that … You understand why soldiers charge machine guns or hold out to the death while others escape. bury, 2010:136

∵ The above quote makes an important observation regarding military service that combat soldiers throughout the history of organised warfare would recognise, that the drive which motivates them to engage in combat and possibly kill is dependent primarily upon comradeship and the bonds of friendship, rather than the motivation of fighting for some national, political, or religious ideology; “the men seem to be fighting more for someone than against somebody” (Grinker & Spiegel, 1945:45). The values that incubate these social relations, such as selfless commitment and courage (Army Doctrine, 2000), and which serve to tie soldiers together as comrades, have existed in various forms for as long as humans have organised themselves for the purpose of war. The degree of success any military has had in motivating men1 to fight can be measured in part by how successfully they have been able to instil the values that contribute 1 This research will predominantly employ the male form when referring to combat soldiers. The rationale for this is that arguments and evidence used in support of this chapter are drawn from studies on all male combat divisions/units. This is not to ignore the historical and ongoing part women have played in combat roles in state and non-state fighting groups, but rather offers one line of analysis concerning male only combat units. Prime Minister David Cameron’s 2016 announcement that women would gradually be phased into close

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_008

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to bringing about this intense experience of comradeship and love between fellow soldiers. These values contribute implicitly and explicitly to the maintenance of social relations of trust and teamwork between peers which form the foundation of primary group cohesion (Siebold, 2007:286). The ability to resist within the context of combat, or to put it in the military vernacular of today, an individual’s “fighting power”, is dependent on the cohesion of the primary group and its tendency to avoid social disintegration (Janowitz & Shils, 1948). While values of comradeship and commitment to the group seem timeless, however, over the last 30 years, an explicit discourse of ethics has also emerged as a feature of the organisational cultures of numerous state militaries. There are various means of accounting for this, but one recent factor is the reaction to the operational experiences of, and political pressures around, what is termed Counter Insurgency (coin) warfare. This “turn” towards formalisation of ethics has also precipitated a transformation in associated fields – ­psychological research on the post-combat experiences of soldiers has looked beyond Post Traumatic Stress Disorder (ptsd) and has attempted to explain feelings of guilt in terms of “moral injury” (Maguen and Litz, 2012), that is, related to the contravention of deeply held moral beliefs in the context of combat. Underpinning this emerging institutional emphasis on ethics has been a focus on corporate values. In the case of the British Army, this is manifest in what are referred to as its “Core Values”: selfless commitment, courage, discipline, integrity, loyalty and respect for others (Army Doctrine, 2000:3-1). The connection between these codified, corporate ethics and soldiers’ values in everyday life and combat situations is poorly understood. This chapter will begin to shine a light on this relationship, taking the British military as its example. It will offer an historical overview of the emergence of a discourse of ethics, with particular attention paid to the tensions between an ethics of killing or violence and an ethics of restraint – a hallmark of the coin operational environment. Through 22 semi-structured interviews and observations conducted with the cooperation of a British infantry company, it will explore how values are tied up with what Pierre Bourdieu calls “symbolic capital”, ­shaping and guiding combat conduct via a soldier’s specific place within their social relations and providing sources of moral legitimation, ex-ante and ex-post, for activity in the context of warfare. It will claim that, arising from this focus on values, we must look at the formal and informal social processes by which values come to be “adopted” by junior soldiers, and subsequently contribute to combat frontline roles will in the future necessitate further research on the impact of mixed gender combat units on group cohesion in the British Army.

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shaping their ethical conduct in combat. Additionally, through a focus on the intuitive and embodied habits that Bourdieu draws our attention to, it will argue that ethical conduct in combat ought to be considered as much a form of skilful, practical coping, as it is a critical act of reflection.

Understanding the Role of Values and Ethics in the Military

To begin with, it will be useful to trace the historical emergence of ethics and values as objects of discourse. The starting point in this regard are The ­Nuremberg Principles, which emerged out of the military tribunals set up to address the war crimes of Nazi Germany. They brought into being, in a quasilegal and codified sense, the possibility that soldiers could be considered as morally autonomous, and as such, responsible for their actions in the context of war, something which had previously been absent at least in terms of ­institutional and legal understandings (United Nations, 1950:375). These principles both introduced, in a normative legal sense at the very least, the notion of moral responsibility and the possibility that the actions of the individual soldier be judged as morally autonomous. Whilst the full implications of this would take decades to be realised, and are still ongoing, they did represent a new paradigm in terms of the consideration of soldiers as autonomous ethical actors by both wider society and the institution of the army itself. They both contributed to the Laws of Armed Conflict, and normatively shaped ethical thinking in relation to the conduct of warfare. This initial emergence of ethics did not, however, represent the first emergence of the ethical dimension of soldierly experience. The combat soldier has likely grappled with the deep moral implications of combat for a very long time, and perhaps this struggle with the moral significance of taking another’s life has grown alongside our increasing social interrelation. The norm which prohibits the taking of human life in most circumstances is one which is a product of historical social processes. Norbert Elias sees the existence of norms such as these as being products of the “civilising process” (Elias, 1998:51–52). As a result of social functions becoming more differentiated over time, the number of functions and people who the individual depends on becomes greater. The individual is thus “compelled to regulate his conduct in an increasingly differentiated, more even and more stable manner” (ibid). This process not only generates a self-conscious level of control but also a “blindly functioning apparatus of self-control is firmly established” (ibid). As such, according to this account, the degree to which human life becomes morally valorised, as expressed in relation to the existence of ethical and moral norms, is an

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emergent process. Humans have developed over time a resistance to taking life to a greater degree, however our understanding of soldiers, at least from the perspective of formal analysis, as ethically autonomous actors, has taken far longer to emerge. This resistance to the taking of human life, at times at the expense of one’s own, and the observation of this phenomenon amongst combat troops (S.L.A Marshall, 1947; Grossman, 1995:4; King, 2013:62), shaped to a significant degree the other key process of emergence of a discourse of ethics in the military. The moment the military focused their attention on this, what necessarily emerged, however indirectly and implicitly, was a discourse on the ethics of killing. This emergent ethics of killing or violence was rarely identified as such, reflecting perhaps a culture of shame similar to that which has marked our understanding of sexuality, which until Freud had gone largely ignored by academic thought. These ethics of violence were dressed in the euphemism of “combat motivation”, but at the core of it was a discussion of how the institution of the army can effectively encourage a human to take another human’s life within the confines of state sanctioned violence. One example of the resources that were utilised to answer this complex problem was values. The first implicit engagement with the question of values from the standpoint of the military and associated academic fields relates to the question of primary group cohesion and combat motivation. This proposed relationship, as will be discussed, often draws on the language of values to explain the s­ alience of the interpersonal relationships that form the durable bonds of the primary group. The claim that the interpersonal relationships that form ­primary group cohesion are crucial to combat motivation or “fighting power” ­(Grinker & Spiegel, 1945; Janowitz & Shils, 1948; Janowitz & Cottrell, 1959; Hockey, 1986; Wong, Kolditz, Millen, and Potter, 2003; Holmes, 2004; Siebold, 2007) has been made largely consistently within the broad range of disciplines focusing on this question. There have, however been alternative explanations arguing that the communicative rituals of modern drills best explain the formation of primary group cohesion (King, 2006, 2013), however it is hard to conceive that this adequately explains combat motivation, were it to exclude interpersonal relations as being core to primary group cohesion. Others have argued that it is necessary to draw the distinction between the social cohesion of the primary group and task cohesion, “the shared commitment among members to achieving a goal that requires the collective efforts of the group” (MacCoun quoted in MacCoun, Kier and Belkin, 2004:647). This emphasis on task cohesion and commitment to a common goal claims that a commitment to the mission ­objectives is the best correlate with combat performance, a point they argue is supported by a meta-analysis of numerous empirical studies (MacCoun, Kier and Belkin, 2004:648). This claim is raised partially as a response to the study

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of us combat soldiers in Iraq by Wong et al. (2003), which further supported the account of the primacy of the relation between social cohesion and combat performance, seeing commitment to mission objectives as being a second order relation to performance in combat. Wong drew on numerous interviews with combat soldiers to support this, a feature of their argument which is dismissed by MacCoun et al: “[e]ven though soldiers believe, in other words, that social cohesion explains their own motivations in combat, these beliefs in and of themselves are not proof of their own accuracy. The soldiers may simply be telling us what they have been told in the past” (2004:650). This line of argument, which seems essential for their own claims concerning the centrality of task cohesion, does a significant symbolic violence to the testimony of the soldiers themselves. Drawing on Bourdieu’s own observations on the space of the interview, Schostak understands this notion of symbolic violence in the following manner: “[i]t would be a violence for the interviewer as listener to disabuse what is confided in those spaces by selective interpretation, by imposing desired meanings that suit a particular case, by omitting aspects of what is told and privileging others” (Schostak, 2006:60). Whilst a degree of symbolic violence is always inevitable, as we researchers come to the social world socially positioned, with particular conceptual means of framing the world, a sensitivity to this notion of symbolic violence ought to guide the manner by which we interpret empirical data. Without delving into this debate in further depth, it is enough to say that this research will give primacy to the testimonies of soldiers concerning their own accounts of what motivates them to engage in combat, whilst also acknowledging that task cohesion plays a second order role in terms of combat motivation; “once the war outcomes become apparent, the motivation shifts to more ideological themes” (Wong, Kolditz, Millen, and Potter, 2003:19). Accepting, then, that interpersonal relationships play a primary role in combat motivation, they rely on a number of further factors, in particular the role of training regimes in relation to military socialisation. The barracks can be understood as a “total institution” (Goffman, 1961), offering a totally e­ ncompassing provision of a world within its boundaries and “is symbolized by the barrier to social intercourse to the outside” (ibid). The unique role of the barracks and the regimes of basic training contribute to a process of “self-mortification” (Goffman, 161:24), whereby the soldier-recruit is “stripped” of his prior social arrangements which contribute to the stable conception of self. Invoking this state of deliberate disorientation is done for the purpose of socialising in the military identity as well as forcing soldiers to seek support from their fellow recruits, contributing to the formation of the primary group. Other processes such as the mobilisation of particular notions of aggressive masculinity which

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underpin aspects of the warrior ethos, as well as a closely connected “cult of virility” (Holmes, 2004:46) and notions of “heterosexual potency” (Hockey, 1986:35), also contribute to combat motivation. Values supplement these processes and are institutionally valorised such that a soldier’s orientation towards and acceptance of certain values forms the basis of the possibility of the formation of these interpersonal relations and consequently the orientation towards the primary group. Arguably, it is difficult to conceive of a platoon, section or unit operating effectively if its soldiers didn’t consider worthy, in some sense, values such as selfless c­ ommitment, courage, and integrity for example. These values become a crucial basis by which soldiers form their notions of self and other. They measure one another in terms of these values – in effect, part of what it means to be a “good” s­ oldier is derived by one’s embodiment of these values through concrete actions. Whilst their meanings are never completely stable, these values ­operate as crucial sources that guide concrete ethical conduct at the level of each individual soldier. In determining what qualifies as integrity or moral courage, soldiers will often refer to these values as one means of eliminating ambiguity in ethically complex situations ex-ante, and ex-post as a means of testing the moral legitimacy for one’s act and potentially deriving moral legitimation for that act. Conversations with serving infantry soldiers confirmed the role these values play with respect to ex-ante and ex-post sources of moral legitimation for the act of killing: If your friend’s in danger then you are going to fight… It’s to do with the friend next to me who you are fighting with… If I know that if I have killed someone, I know that if I hadn’t, he would have gone and killed me or one of my friends… I would be feeling ten times worse if he had killed one of my friends. soldier b, 2016

Also, the direct connection to shaping ethical conduct in the context of combat: Courage, I see that as more moral courage, because physical courage you have anyway. Fighting with your friends ties in with respect for o­ thers. Courage for me is more like a moral courage, to say “I don’t think that is right”, like I was saying before about the full screw giving the order, it would be up to the Lance Jack to say “Are you sure that’s right?”, ­whether that order should be carried out is when moral courage comes into it. soldier b, 2016

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The centrality of values to the shaping of ethical conduct has been acknowledged institutionally by the Army itself. It recently created the Brigadier level post of SO1 Ethics, initially occupied by Padre Phillip McCormack, who was tasked to “maintain and develop the ethical content of doctrine and training to Land Forces operations” (McCormack, 2015:32). Primarily, the outcome of his work argued for the need for an ethical grounding to core values, on a ­universalist conception of an ethical good. Given then that values play a significant role in primary group cohesion, and also as a crucial source in shaping ethical conduct, one must attempt to pick out sociological processes which may explain why soldiers orientate themselves towards these values as well as examining how these values come to contribute towards shaping ethical conduct.

Codifying Values

The role of what are now referred to in the contemporary vernacular of the British Army as Core Values can also be understood in a number of further ways. Not only do they contribute to form the basis of the social relations at the centre of the lifeworld of soldiers, they also shape both embodied ethical c­ onduct and reflexive ethical decision making. They form part of a set of moral resources, which soldiers refer to reflexively in order to engage in ethical conduct, often as an attempt to overcome and eliminate ambiguity, both in the context of army life at home and as well as the operational setting. They also over time shape embodied ethical conduct, in that many decisions which soldiers make in the context of combat, which would be identified as having an ethical component, take place without conscious ethical reflection. It is this emphasis not only on critical moral judgements, but on the embodied and intuitive aspect of moral conduct, which this chapter will later focus on. Although conscious moral judgements are a valuable focus when considering military and combat ethics, an over-emphasis on this dimension has foreclosed an attention to the embodied and non-reflexive character of ethical conduct. The British Army has, through the Discipline and Standards Paper (1993) and through evolving publications in doctrine (2000; 2010), embarked on an institutional process of codifying these values. The practice of codification is to formalise and to adopt formal behaviour (Bourdieu, 1990:78), it “goes hand in glove with discipline and the normalisation of practices” (Bourdieu, 1990:80). Bourdieu sees this process of codification as particularly important in situations where there is a chance, conflict, or hazard (ibid); and that the more dangerous the situation, socially or materially, the greater the degree of

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codification of a practice (Bourdieu, 1990:78). This institutional process undertaken by the Army, where corporate values have emerged as a formal aspect of the institutional culture, represents an attempt to formalise ethics as a means to “banish the effect of vagueness and indeterminacy, boundaries which are ­badly drawn and divisions which are only approximate” (Bourdieu, 1990:82). The initial first steps in this process of codification were taken in response to fears of a d­ isintegration in the moral fabric and culture of the British Army, resulting largely from perceived changes in the “moral backgrounds” of recruits. The ­focus of the Discipline and Standards paper (Wilkes, 1993) was clearly identified as a means of addressing at least a perception that some change had occurred; The Army’s code of conduct has not reflected the recent change in accepted standards of personal behaviour in society at large. We have tended to rely on those joining and serving in the Army having an innate understanding of what is acceptable and what is not. Discipline and Standards Paper, wilkes, 1993:1

Regardless of whether one accepts the claim that recruit backgrounds and standards had changed in some manner at that point, it is certainly clear that the Army perceived it as such, “sergeants were also dismayed at the change in the recruits they were getting since about 1987. (Right across the Army almost everyone puts their finger on that year, although nobody can give a satisfactory explanation)” (Beevor, 1991:xxii). This was the background in which initial attempts to codify these values emerged. “In these circumstances, it becomes yet more important to define and justify the standards which the Army deems it essential to maintain” (Wilkes, 1993:2). The response at the time to the introduction of Discipline and Standards was less than sympathetic amongst rank and file soldiers, a former Major (a junior soldier at the time) in the Parachute Regiment expressed his reaction to the introduction of Discipline and Standards: With a huge helping of disbelief … a bit disdain … and very cynically I think… Because the people writing this and telling you how to behave weren’t necessarily the role models you would have chosen… Who are you to tell me how to behave… I think most people felt it was belittling. soldier a, 2016

The reasons prompting this need to establish a greater clarity concerning institutional understandings of values were couched in the perceived threat

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to primary group cohesion as a means to battlefield efficiency, still implicitly conceived in terms of combat motivation rather than the notion of ethical ­conduct within combat: The service aims to foster group cohesion within a structured chain of command, which is such a decisive factor in battle; but by its very nature, such cohesion can be destroyed quickly where there is a loss of trust or confidence. Discipline and Standards, wilkes, 1993:4

This paper led to the first example of the inclusion of core values within Army doctrine in 2000, framed as the “Moral Component of Fighting Power” (Army Doctrine Publication Volume 5 -Soldiering: The Military Covenant, 2000). Whilst this document still largely focuses on the functional role values have in relation to combat motivation, it also begins to draw out the possible role they play as a means to shaping ethical conduct, implied within the bringing about of “conditions for lasting peace”: However, consistent and sustainable national strategy, and true and enduring success on operations depend on moral strength – in war on moral dominance over an enemy – not just to overcome the adversary, but to establish the conditions for lasting peace. Enduring moral strength requires inner qualities in all soldiers. Army Doctrine Publication Volume 5-Soldiering: The Military Covenant, 2000:1–3

Values have been mobilised by the British Army in different ways and for different purposes over the last 30 years. This institutional “turn” to values, has also been shaped through responses to pressures external to the Army. Arising out of the 1995 Bett Review, the personnel management for all three armed forces were centralised, precipitating a sense of profound shock, in particular, that the Army was aligned with the raf. Further, there was the growing influence of managerialism in the form of human resource management, a discrete management discipline that was being taught and adopted throughout the private sector and was beginning to gain a foothold in terms of management practices within the Army. This was observable through the introduction of concepts such as “duty of care” and “health and safety”, under government oversight (Mileham, 2016). These pressures pushing for reform at various levels of the organisation prompted responses that demonstrated that the Army felt its institutional culture had been threatened in some way. In 1996, the Executive Committee of the Army (ecab) published a paper titled, “The Extent to which

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the Army has the Right to be Different” (ecab, 1996), which mobilised terminology of values in the form of “ethos”, first referred to in the Discipline and Standards Paper. This perceived threat from outside interference was mentioned explicitly against the backdrop of “equal opportunities” and “health and safety” and the increasing tendency of parliament to impose changes. [T]here is a tendency for the differences between the Army’s imposed standards and those prevailing outside to widen… More importantly, there is also a risk that external social and legal pressures for change, sometimes prompted by the increased visibility of its differences, will unwittingly be allowed by those who regulate the Army, i.e. Parliament, to undermine not just peripheral but also core values of military ethos. Executive Committee of the Army (ecab), 1996:6

Clearly, Army culture and values were perceived to be threatened and the response was a process of further codification of those values. Largely these attempts at codification have focused on the formation of an ethics of ­military service, distinct through omission, from any explicit notion of an ­operational setting. Most articulations have been limited to explaining values as ­foundational to the “Moral Component” of “Fighting Power” through their role in providing moral cohesion (Army Doctrine Publications – Operations, 2010:2–16). Whilst there is a short reference to their contribution to ethical conduct and its relation to the operational environment (Army Doctrine Publications – O ­ perations, 2010:2–11), when they are explained at length, it is in terms of their contribution to a definition of operational effectiveness, in terms of defeating the enemy through the application of force, where the ethical ­component, either as an imperative or strategic aspect, is largely absent (Army Doctrine ­Publications – Operations, 2010:2–19), falling back to explaining them in ­reference to their role in maintaining strong peer relations. This reflects what Patrick Mileham identified as an absence of engagement by both formal and historical military literature with the “moral dynamics” of military power (2008:46). This is not to say that the Army has been wholly ignorant to these questions, in parallel with the institutional emergence of values as central to the corporate culture, there has also been a slow but emerging engagement with the question of the ethical component of military capability by the army itself; amongst others, a Royal College of Defence Studies Seminar was convened to examine this question in 2011. More recently, however, this ongoing process of ethical codification has been significantly informed and shaped through the experiences of the

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i­nstitution in the operational contexts of Iraq and Afghanistan. This can be framed as a secondary stage of codification, in that it is distinct from previous institutional representations of values as core to corporate culture and, ­connectedly, a resource for combat motivation. Current Army discourse on values has shifted to be predominantly informed by the very distinct ethical complexities which have characterised these recent deployments and which have precipitated a time of indeterminacy and contradiction. However, this current framing of ethics can also partially be taken back to the British Army’s experiences in Northern Ireland. Notions of external moral scrutiny, as well as the inherent complexities of undertaking operations on “sovereign” territory, were becoming salient due to the increasing media exposure, reflected in the comments of a former Major who had numerous deployments there throughout the nineties: You have got to take the local public along with you so it is hearts and minds, people talked about hearts and minds but didn’t really understand what it was all about. Every action has a reaction and you have to make sure that your actions are the right ones or at least can be described positively, otherwise your actions can be played back in a different way, sound-bited to suit someone else’s needs. We became very aware, very conscious that if someone from the press spoke to you they might not be on your side. Northern Ireland shaped this. soldier a, 2016

Largely these processes of formalisation have focused on an understanding of ethics related to military service, rather than an explicit reference to operational ethics. The reason for this is the space between the external c­ ontingencies that are pushing this ethical discourse, as well as historic and institutionally embedded understandings of ethics and connectedly values. There exists an inherent tension between an ethics of violence, which shapes aspects of the army’s current codification of an ethics of military service, and an ethics of restraint, which is implied in the types of ethical evaluations necessitated in the coin operational environment. In many ways, the ethical imperatives of this relatively new operational environment in which the British Army increasingly finds itself, run in distinct opposition to the many of the implicit values and ethical assumptions that the army has formed over the experiences fighting and preparing for conventional statist conceptions of warfare. This current effort at the “symbolic ordering” of ethics can be taken as an implicit response to the indeterminacy and hazard which has been ­recognised through recent operational experiences, necessitating the disciplining of

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ethical conduct. The jus in bello/jus post bellum distinction, carried through international legal conventions such as the Geneva Convention, has largely informed implicit and explicit understandings of conduct ethics in warfare and post-conflict environments, at both the level of institution and individual soldier. This bipartite conception of ethical conduct can be displayed in the following manner:

The Two Ethical Environments

Conduct Ethic

Discriminatory Practice

Proportionality Practice

Overall Priority

Internal War Criminal Justice

Enemy Suspect

Maximum Force Minimum Force

Military Necessity Law and Order

(Dowdall & Smith, 2010:38).

The coin environment sees these ethical environments at times as being contemporaneous, with combat soldiers, whether ncos or Officers, faced with complex ethical situations, which concern issues of discrimination and proportionality of force. Not only do these decisions have strong moral implications in and of themselves, for the individual soldier and the Army, e­ thical ­conduct is also an operational behaviour with strategic impact. Current explicit institutional articulations of Army values and associated ethics are in part a means to ensure unit cohesion and enable fighting power at the level of the individual soldier. This ethics of violence, which has been at the core of the ethics of military service, runs at times in opposition to an ethics of restraint, which is implied in the coin environment. The us Army Field Manual comes very close to articulating this new form of ethics through its commentary on the paradoxes of the coin environment: – Sometimes, the more you protect your force, the less secure you may be. – Sometimes, the more force is used, the less effective it is. – The more successful the counterinsurgency is, the less force can be used and the more risk must be accepted. – Sometimes doing nothing is the best reaction. (Quoted in Pavlischek, 2009:21) The moral or ethical aspect of military power must be considered both as a moral imperative, in that we desire soldiers to do the “right” thing, and also as a

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central pillar of military doctrine. Ethical conduct at the level of every rank can have wide and far reaching implications for the very success of an operation – as such it has a parallel tactical and strategic component. There is nothing new in this claim and it is implied in many of the observations made concerning the coin operational environment (Krulak, 1999; Dowdall & Smith, 2010). If we accept this, then it should lead us to consider with far more depth and ­attention the question of ethical “education” in the military. From the first day a soldier embarks on their training, much of the attention of the institution is rightly focused on training the new recruit to perform their primary function of soldiering, through socialisation into the military, weapons handling, tactics, etc. While it is possible to identify an ethical hue to a number of different training contexts, ethical “education” in the military is considered distinct from these, as evidenced in a Navy command report: While military training can prepare individuals for likely scenarios, education helps to develop skills and insights that can be applied in complex situations that present unexpected challenges or which are simply beyond the scope of training. Navy Command Headquarters, 2014:9

This distinction between military training and ethical education arises from what still remains as the prevalent account within military understandings of ethics, that sound ethical conduct is accompanied by sound moral judgement, reflective in nature. This is in contrast to the notion of soldierly skill acquisition, which is trained, developed and matures into an intuitive response. The current trend in the study of military ethics and the view taken by the British Army is that ethical conduct at the level of junior soldiers and ncos is largely derived from “sound” moral leadership from the commissioned ranks – as such, what might qualify as “ethical education” in the British Army is more often than not focused at these ranks (Wolfendale, 2008:168). The hope has been that moral leadership will “drip down” through some poorly understood process of socialisation, and consequently shape and influence the ethical conduct of lower ranks. Furthermore, ethical conduct is often considered as a reflexive process whereby soldiers engage in processes of conscious decision making when faced with ethically ambiguous situations. While there have been recommendations that military training integrate this ethical dimension (Bumbuc, Ş. & Macovei, C, 2015:557), with an attention to the developing moral intuition in the soldier, the authors still fall back on an account of “intuitive moral judgements”. This continued emphasis on reflective judgements as being the sole hallmark of ethical conduct has clear implications for how ethics

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are ­conceptualised, operationalised and “taught”. The British Army has generally eschewed formal ethical education, preferring a particular type of virtue ethics, whereby the character of the soldier is shaped such that correct ethical conduct follows, though the process by which this occurs, or even evidence supporting this claim is generally absent. However, paradoxically, in the few Army classroom discussions of concrete ethical problems, there is still the tendency to conceive of ethics training as a reflexive process, which can be taken from the classroom to combat. This is obviously part of the picture, but what has perhaps received far less attention is a focus on junior soldiers as autonomous ethical agents, the role of embodied ethical conduct – that being the notion that soldiers can engage in ethical conduct in a non-reflexive, dispositional way – and finally, what constitutes ethical expertise – is it the ability to reason and act in an ethically sophisticated fashion or the moral quality of the outcome of the act? Most importantly perhaps, if we treat values as important resources that potentially shape ethical conduct, why do soldiers orientate themselves towards them or not, and what sociological theories may explain these processes?

The Military Field and Habitus

Across all interviews conducted for this research with junior soldiers, and those more senior reflecting on their experiences as junior soldiers, the importance of Non-Commissioned Officers (ncos) became increasingly apparent. They act as significant others in terms of the social relations they bear to junior soldiers. Junior soldiers will take on and imitate the roles and behaviours of those “others”- section commander, colour sergeant etc., dependent on them being recognised as “significant”. This activity of role-taking functions as a means of self-criticism, in the sense that the individual is able to determine appropriate and inappropriate courses of action. In parallel this manifests itself as a form of social control, “serving to integrate the individual and his actions with reference to the organized social process of experience and behavior in which he is implicated” (Mead, 1972:255). These significant others, “have come to see he should be, what they have come to treat him as being, and what, in consequence, he must treat himself as being” (Goffman, 1971:279). Underlying the social processes which orientate soldiers towards these significant others are practices of “recognition seeking” (Bourdieu, 2006:165) shaped through early childhood development within the context of family. Underlying the notion of action as a means of imitation is the claim that Army core values, in their codified sense, represent sources of “symbolic capital” (Bourdieu, 2006), which

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­individual soldiers seek to accumulate as a means of advancing their own position in the military field. Put differently, the attainment of behaviours that embody those core values determines the degree to which a soldier is able to fulfil the soldierly ideal, determined intersubjectively via his fellow soldiers. In order to better understand these two crucial concepts, it will be useful to provide a brief exposition of the ideas developed by Pierre Bourdieu, as these provide the foundations upon which processes of recognition seeking and symbolic capital can be found. One can in part characterise Bourdieu’s body of work as an attempt to develop an account of how social formations or structures reproduce themselves, and the attempt to “[reintroduce] agency into social theory” ­(Callinicos, 2007:291). A concept primary to his theory is habitus, being “a particular set of dispositions, consisting especially in the practical abilities required to apply categories that are means of perceiving and of appreciating the world” ­(Callinicos, 2007:295). These dispositions and practical abilities can be conceived of as generative schemes which constitute the self, as well as produce and reproduce social structures. The habitus constitutes how individuals adapt to the needs of specific social structures (Callinicos, 2007:296), whilst not claiming it to be a set of consciously held beliefs, Bourdieu sees it as ­something far more embodied, a “tacit competence implicit in actors’ practical ability to cope with a wide range of situations in ways that are predictable without being reduced to the conscious observance of a set of rules” (Callinicos, 2007:296), it is p ­ ractice conceived as something more than rational calculation or observance of norms. An account of practices that bears some similarity to Heidegger’s ­notion of practical utilisation or “comportment” (Heidegger, 2001). This phenomenological reading of habitus will be developed further in the final section of this chapter as a means of providing an alternative account of ethical conduct as an intuitive, embodied response. Central to the concept of habitus, Bourdieu developed the notion of “field” and “capital” (1977). Fields are the structured social contexts within which a person’s habitus generates action, “each field is semi-autonomous, characterised by its own determinate agents (for example, students, novelists, scientists), its own accumulation of history, its own logic of action, and its own form of capital” (Calhoun; LiPuma, and Postone, 1993:5). Bourdieu ­identified a number of different forms of capital- economics – social, cultural and s­ ymbolic – which are distributed unequally across different social classes (Swartz, 2002:655). The introduction of the concept of field allows Bourdieu to account for the competitive struggles that occur over different forms of capital, relative to the structured social space of the field; a person’s habitus is mediated by the field they are in, and the field is mediated through the dispositions of

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a ­person’s habitus (ibid). Importantly for the question of ethical conduct of combat soldiers, Bourdieu takes habitus to also incorporate moral dispositions, a “permanent disposition, embedded in the agents’ very bodies in the form of mental dispositions, schemes of perception and thought” (Bourdieu, 1977:15). Bourdieu across a number of works provides slightly different interpretations of how ethics can be understood in terms of their function beyond their role within the dispositional qualities of habitus. In Distinction (1984) he makes the claim that they provide a resource by which to accumulate ­legitimate power, derived and reinforced from authority, what he also refers to as “symbolic power”. This symbolic power is partially derived through acts of recognition, as it relates to the assignation of “name, renown, prestige, honour, glory, authority, everything which constitutes symbolic power as recognized power” (Bourdieu, 1984:251). These dimensions of symbolic power are intersubjectively constituted through acts of recognition by others. The drive to accumulate symbolic capital, and connectedly symbolic power, in the form of honour, glory, credit, reputation, fame, etc., all represent the search for the approval of others, according to Bourdieu (ibid). This drive to seek the approval of others is one that is formed through early childhood experiences in the context of the family (Bourdieu, 2006:167). Children’s primary habitus is shaped by testimonies of recognition from family members and develops a “sharpening of their sensitivity to these prizes” (Bourdieu, 2006:167) via this recognition through praise. As such, their primary habitus is formed to be attuned to social games, or fields which offer the potential of yielding these rewards of recognition. The site of the family, in terms of it shaping the primary habitus of children, simultaneously makes this primary habitus “practically compatible” with certain fields. In working class families, where those who supply the testimonies of recognition tend to occupy fields where symbolic capital, in the form of recognition for ability in manual tasks, is the social game at play, reproduce in their children certain symbolic features of the habitus of the field which they occupy. Children will be rewarded for particular behaviours which favour certain forms of symbolic capital – rough, masculinised behaviours may be treated as more praiseworthy in families where the parent works in highly masculinised professions. These observations may also partially explain the predominance of individuals from low socio-economic groups in the infantry; as well as the significance of ncos as conferrers of recognition, and connectedly the gatekeepers of symbolic capital. It is important to note that ethics are not wholly reductive to strategies of accumulation of symbolic capital for individual advancement in the military field, they are also, as reported by soldiers themselves, meaningful objects in terms of their own construction of self. The aim, then, is to provide a coherent picture of ethics,

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which sees them as both understandable in terms of, in the case of this research, power struggles over the accumulation of symbolic capital, as well as being strived towards as an end itself – an end explained as an achievement of recognition. Values are crucial to soldiers, also, as objects that allow them to become meaningful human beings. Lay normativity is important precisely because it is important to people as they go about living their lives, it impacts directly on their well-being (Sayer, 2004:4). Sayer outlines the possibility of a heterodox position regarding values in the following: “The struggles of the ­social field, between different groups, classes, genders and ethnicities certainly involve habitual action and the pursuit of power, but they also have a range of normative rationales, which matter greatly to actors” (ibid). These “normative rationales” are the basis of the meaningfulness of those values to soldiers themselves. We generally feel a strong sense of emotive connection to the values and ethical systems we adopt and adhere to within our lives, which is a crucial layer of experience beyond a purely reductive account of ethics.

Core Values as a Form of Symbolic Capital

As argued, values in the context of the army can be considered as a form of ethics in their own right, whereby soldiers have a strong emotional orientation towards them in terms of the formation of self and also the relationship they have to ethical conduct. They are also sources of symbolic capital, for which soldiers engage in interested strategies to accumulate. In order to further understand the significant role values have in the military, specifically the British Infantry, returning to Bourdieu’s definition of field will be a helpful starting point. A field is an objective set of relations between the objective positions of individual agents or institutions, determining the occupiers of these positions, present and potential situations “in the structure and distribution of species of power (or capital) whose possession commands access to the specific profits that are at stake in the field” (Wacquant, 1989:39). Thus, the field is an area of specific social relations and “species of power” defined as particular capitalsthe field itself contains its own internal logic, through its functioning which confers the belief in the value of those profits which are at stake (ibid). Capitals themselves, and the particular profits which can be derived through there accumulation are relative, and exist only in relation to the field itself, they confer “a power over the field, over the materialised or embodied instruments of production and reproduction” (ibid). Considering these claims in relation to the military field, and the location of one of this chapters particular foci, the infantry; symbolic capital, manifest in the form of honour, prestige etc., ­confers the

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“belief in the values of the profits at stake”, and is the main determinant of the objective relations of this field. The striving towards the accumulation of this form of capital is the very rationale of interested action in the military field, the accumulation of other capitals such as cultural and economic function as “species of power” in the military field are of a second order, Symbolic capital is the primary capital form in the military field- it is valued, and thus confers, greater profits than other capitals. The attainment of the soldierly ideal is achieved through the accumulation of forms of symbolic capital of which the codified system of core values, are an example of. This soldierly ideal is not a stable concept, rather it has been subject to change as the army as has changed, it is an aspirational ideal closely tied to notions of masculine virility, honour and courage, best framed through the idea of the “warrior ethos” or calling. John Hockey, in his ethnographic work on a British infantry unit in the 1980s sees the soldierly ideal in the following manner, “If recruits display endurance, toughness, aggression, and the requisite degree of skill, adequate military performance is likely to follow. The recruits are then soldiers and by definition thoroughly masculine”. (Hockey, 1986:35). The motivations for joining are often framed in similar terms, “I couldn’t understand why anyone would join the army and not join the infantry… No one with the warrior calling joined the army to be a logistician, administrator or educator”. (Bury, 2010:33); “Feeling cool, tough, powerful. Manly, really. It attracted all of us at some level.” (Bury, 2010:81). Core values, such as physical and moral courage, integrity and selfless commitment all function as forms of symbolic capital in the military field, the accumulation of which confers the possible achievement of the soldierly ideal. The accumulation of symbolic power contributes to the possibility of embodying the “warrior ethos”, representing the achievement of the particular profits offered by the military field. As mentioned previously, the objective significance of these capitals in the military field is marked by their codification, as evidenced by bureaucratic artefacts such as Discipline and Standards and Military Doctrine. Put simply, one judges oneself a soldier and is judged by others to be a soldier, partially, by the degree to which one embodies these core values, whose meanings are subjectively and intersubjectively constituted. The degree of orientation towards these values is clearly represented in interviews conducted with serving British infantrymen; also the salient role they play in shaping ethical conduct is apparent. Selfless commitment, you don’t really need that unless you are on tour … integrity, that to me is a big thing, I hate people that lie, I haven’t got time for them. Discipline, my father was a bit strict when I grew up, and that was put into me from a young age and when I come into work I am well

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presented, it’s very rare I get in trouble unless I blow a gasket. I try as hard as I can to be the best in terms of values and standards. soldier c, 2016

This response also reflects how a soldier’s primary habitus, the particular dispositions which shape ones’ interaction in social “games”, formed in the context of family, is reflexively matched against the particular requirements of the military field, in this case orientation towards core values such as discipline. Further conversations with a Staff Sergeant with extensive combat experience in both Iraq and Afghanistan mirrored the central importance of core values: The core values are pretty much bang on. I think all the core values go into build your head before you go on tour, you do judgemental ­training … something does take over you when you are in combat, it is just ingrained in you … moral courage, that’s more doing the right thing … it goes back to you knowing right from wrong, if you know someone has done something wrong, obviously not just being a general snitch but if you know someone has shot an innocent civilian, you have to go up the chain of command to say that someone has done this. soldier e, 2016

Responses like these were largely consistent across the 22 soldiers that were interviewed; core values were viewed as being crucial in terms of providing self-disciplinary benchmarks for behaviour as well as possible sources to guide ethical conduct, as reflected in the following: “they are part of helping an individual make his decisions, and making good decisions” (Soldier A, 2016). In addition, while the meanings of these core values were understood in various ways, and ranked differently according to their importance, there was a strong implication that when looking to particular individuals of whom it may be said to have embodied aspects of these core values, and thus were simultaneously sources of recognition in the sense that they had the ability to confer praise for actions which embodied these values, junior soldiers would often look to ncos as sources of recognition and gatekeepers for this form of symbolic capital. Your section commander was the guy you looked up to because you spent all your time with him, and I think nowadays, it goes off experience – my section commander had 14 years and had been to Iraq, Northern Ireland, all over … he had a lot of life experience in the army, he had a lot to pass on. soldier d, 2016

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Given that, core values form a crucial component of the soldierly ideal, the notion of “looking up” towards an individual for guidance must imply that their embodiment of these values is at least part of this process of recognition seeking. Talking to a Lance Corporal, he was explicitly aware of the role he played in relation to junior soldiers: They always say that the private soldiers would be looking up to the Lance Corporals, erm, thinking that’s where I want to be soon enough, but normally the Lance Corporals, especially in this Platoon, are still friends with them all, it’s like I’m not seen as a proper nco, they work for me not because I tell them to do it … you don’t use rank … they will work for you because they are friends with you. soldier b, 2016

This acknowledgement of friendship as being a driver in the work-based relationships present in army life may seem an obvious point to make, but when seen against the backdrop of recognition seeking practices surrounding the accumulation of symbolic capital in the form of core values, it becomes of salient importance. The role of ncos then becomes crucial to understanding ethical conduct, as these individuals are primary sources of guidance in terms of how soldiers come to understand core values, as their meanings are intersubjectively constituted – a soldier looks up to his section commander as a means to understand what behaviour corresponds with a particular value. This is one facet of a complex set of processes, which lead to particular concrete instances of ethical conduct.

Ethical Conduct as Intuition

As previously commented upon, accounts of ethical education and ethical conduct, developed both academically, as well as internal to the British Army, implicitly treat ethics as in some way related to different types of deliberative, reflective processes of thought. In the case of the British Army, this focus sits awkwardly within an organisational culture which is more inclined to regard ethics in the Aristotelian sense, eschewing the idea of formal type ethics education pursued by other state militaries. This consideration of ethics as a deliberative process at the level of conscious, reflective thought is of course a relevant mode of inquiry, it does however, foreclose the non-deliberative, practical aspect of ethical conduct as merely being an outcome of the deliberative process of ethical reasoning. To put differently, as is often implicitly the case,

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the traditional aim of military ethics is to get soldiers to think ethically, in order for them to produce conduct which reflects that type of ethical thinking. Deontological ethical accounts – rule based ethics – will always have some role in ethics training and education in the military, but it does not follow that this ought to be the only emphasis when considering ethics in this context. Arising from this foundational emphasis on deontological approaches to ethics, it is assumed incorrectly that preferred ethical conduct in the context of combat (traditionally determined through the increasingly tenuous jus in bello, jus post bellum binary), is brought about by a deliberative, reflective process on behalf of the soldier, whereby one reflects ethically on the content of one’s action, in reference to some set of constraining ethical principles (Rules of Engagement, personal ethics, etc.), and preferably acts in line with these principles to produce a desired ethical conduct. Ethical conduct is the act in its practical sense, the doing or not doing in some way, and the form of that act in this sense is the determination of that act as a bearer of some descriptive ethical content, i.e. the doing or not doing of an act in a particular way, meets or does not meet some predetermined, normative ethical requirement. Connectedly, If we carry through this traditional emphasis on deliberative ethics, it seems to follow that it ought to accompany the practical aspect of ethical conduct, or at the very least precede it. This is a restriction of ethics to judgments, rather than intuitive, non-reflective response. This account also implicitly draws on a view of moral expertise similar to that developed by Kohlberg (1971) in his “Stages of Moral Development” which argues that moral maturity is “the ability to stand outside the situation and justify one’s actions in terms of universal moral principles” (Dreyfus, H.L. & Dreyfus, S.E. 1992:183). This restriction of ethics to judgements, evidenced through the emphasis on the idea that ethical conduct casually follows from sound ethical reasoning, in other words, “think ethically, do ethically”, represents an emphasis on one side of the Moralität/Sittlichkeit debate. This debate initially referred to the tension between Hegelian accounts of customary morality or ethical life, Sittlichkeit (Wood, 1990:216), and Kantian deontological rule based ethics, Moralität, being a perfect correspondence between action and duty. Wood draws the distinction between the two clearly in the following: “The ethical disposition is Hegel’s response to the Kantian duality of duty and inclination. In ethical life, the “universal” aspect of the self (the aspect represented by law and duty) is in perfect harmony with the “particular” side (the individual’s drives and desires)” (Wood, 1990:209). This harmony between the universal Moralität, and the messiness of the individual’s particularity, unifies matter (humanness) and form (duty or universal ethics). The Moralität/Sittlichkeit debate in essence is a “confrontation between those who demand a detached critical morality based

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on principles that tell us what is right and those who defend an ethics based on an involvement in a tradition that defines what is good” (Dreyfus, H.L. & ­Dreyfus, S.E. 1992:183). The current analysis and implicit understanding of ethics in the military finds itself often, though not exclusively, within the Moralität tradition; ethics in this sense is a matter of sound moral judgement with reference to principles such as the Rules of Engagement (roes), Law Of Armed Conflict (loac) – deontological moral principles, whether communitarian or universalist. The desired form of ethical conduct is the rational application of these principles through a particular action – a well-trained soldier applies these principles in the context of combat – judgement is what matters. A soldier who is able to apply these principles through a developed moral judgement is taken by many to be the principle aim when considering the role of military ethics. In a situation where a soldier’s ethical conduct is considered in line with those various moral principles, the assumption is that sound ­moral judgement accompanied the act. Conversely, in a situation where ethical ­conduct has broken down in some way, it follows (for those in the Moralität tradition) that moral judgement has also broken down in some way – poor ethical conduct is synonymous with the absence of developed moral reasoning or some fault in the application of that moral reasoning. This line of institutional thinking is clearly apparent in the British Navy, as recently evidenced through their response to the case of Sgt Alexander Blackman, who killed a Taliban prisoner of war. In a redacted report (Navy Command Headquarters, 2014) produced by the Navy Command H ­ eadquarters, Brig Huntley, the head of the Centre for Defence Leadership and Management, comments on the context and specifics of Blackman’s case. In particular he refers specifically to Blackman’s capacity to morally reason, “moral d­ isengagement on the part of Sgt Blackman and members of his Multiple were a significant contributory factor in the handling and the shooting of the insurgent” (Navy Command Headquarters, 2014:6). Whilst the term “moral disengagement” is loose in its reference to an account of reflective moral judgement, he becomes far more precise in reference to this in that, “the difficulty experienced by Sgt Blackman in changing from a mindset that required him to kill the enemy to one that accepted having to administer first-aid to an enemy in order to save his life, was a contributory factor to his treatment of the insurgent” (ibid). The soldier’s habitus, considered as a set of “durable dispositions”, including both reflective and non-reflective ethical dispositions, shaped in relation to the military field, represent a form of “tacit competence” and a “practical ability”, to cope with different ethical situations. This is in opposition to an exclusive account of ethical conduct considered as a conscious moral judgement. This possible form of ethical comportment is one aspect of a soldier’s

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habitus, and its development is shaped though a soldier’s orientation to core values as a means of accumulating symbolic capital and through the everyday ethical contexts that the soldier faces. Other experiences within the soldier’s lifeworld will obviously impact on the development of their ethical dispositions (positions in other fields such as family), however due to the role core values play in the context of the military field as sources of symbolic capital, they will tend to influence the development of these dispositions significantly. This notion of an intuitive account of ethics, considered as a practical ability, draws also on the work of Hubert and Stuart Dreyfus (1992). Ethical expertise, which must be the ideal aim of any military ethics, is as much concerned with intuition and ethical comportment as it is with a detached, critical moral judgement, and quite often, what can be determined as ethical expertise in the context of the combat soldier is often determined as much by the absence of the associated “moral mindset” as by its presence. Ethical conduct ought to be regarded as much an act of spontaneous coping, consisting of unreflective, egoless responses (Dreyfus, H.L. & Dreyfus, S.E. 1992:185), as a reflective application of some set of rules governing ethical behaviour. These everyday ethical skills are often passed over and the reflexive, rational component of ethical conduct is read back into the act. This is not to say that ethical conduct is separate from moral judgement, only that they play a different role in our accounts of moral and ethical expertise. Dreyfus and Dreyfus (1992:193) provide through this phenomenologically inspired reading of ethical expertise, a markedly novel relationship between the deliberative aspect of moral action and intuition (­intuition in the case of this chapter understood as habitus). Expert deliberation is not inferior to intuition, but neither is it a self-­ sufficient mental activity that can dispense with intuition. It is based upon intuition … in familiar but problematic situations, rather than standing back and applying abstract principles, the expert deliberates about the appropriateness of his intuitions… In such situations, an expert in a novel situation, where he cannot rely on intuition developed through past experience, has to resort back to abstract ­principles through a process of detached deliberation (Dreyfus, H.L. & D ­ reyfus, S.E. 1992:193). Intuition is then central to this account of ethical expertise, and abstract deliberation alone does not take into account the embodied and spontaneous coping that is the hallmark of competent ethical conduct. This intuitive response to ethically complex situations was reported throughout the interviews conducted with the combat soldiers that this research has drawn

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upon. In relation to target discrimination, a Corporal and a Private referred to the ethical complexities of coin operations and what experience meant in this context: Say you’re getting shot at from a building, and you can’t see anything, there might be some other random people in there, you can’t just go in and absolutely destroy a building, you’ve got to think of that even though we were at a time where we could do stuff like that, you still have it in your mind that you don’t want to be the guy that put a round through a kid’s head. soldier c, 2016

In response to this comment: It’s experience, it comes like second nature, the more you have been exposed to a certain experience you can almost know what is going to come next. soldier, d, 2016

This “second nature” and the knowing of “what is going to come next” are the embodied dispositions which mark the ethical dimension of a soldier’s habitus and are essential in our accounts of the nature of ethical conduct and potential ethical expertise.

Conclusion

This chapter has attempted to raise some alternative ways of understanding values and ethics in the context of the British Military. Literature within the field of military ethics has often taken them as given, or at the very most, understood them in terms of their functionality or aspirational characteristics; it has foreclosed the detailed analysis of values and ethics as sociologically significant objects in their own right. Treating them as the latter opens up a whole new set of possible questions, not least, as this chapter has explored, what values and ethics even are and how and why individuals orient themselves toward them. Within studies on military ethics there is a great deal written about ethical imperatives – what we ought to do in some given situation, and this is certainly an appropriate avenue of research, yet this has come at the expense of examining how we understand ethics in terms of the relationship it bears, sociologically, to the individual carriers of ethical conduct. In order to reach a

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desired ethical outcome, whatever that may be, we must first understand the processes by which ethical conduct is shaped. We have seen that core values are fundamental to the ethical fabric of military life. They contribute to primary group cohesion, provide a possible resource to legitimate acts of violence, and shape ethical conduct in combat. Their importance in these respects has been evidenced through an increasing institutional “turn” towards ethics over the last 30 years. This has been precipitated by a number of factors, such as perceptions concerning a “deterioration” in recruit background, a response to government interference in the army’s institutional culture, increasing external moral scrutiny concerning operational and peacetime actions and the inherent ethical complexities implied through recent coin operational experiences. Currently, however, there is an e­ merging tension between traditional army conceptions of an ethics of violence and an ethics of restraint, implied in the coin operational environment. It was also argued that core values are the foundation of army corporate ethics, and function as significant sources of symbolic capital. We have identified ncos as potentially significant actors in relation to being the sources and gatekeepers to these forms of symbolic capital, or in other words, sources of “moral leadership”. Finally, from this emphasis on the relationship between an individual’s habitus and ethical conduct, it has been argued that more consideration ought to be given to the conception of ethical conduct as a practical ability, intuitive and embodied, expressed at a non-reflective level. The implication of these various observations is that further attention should be given to examining the role that ncos have in the shaping of the ethical conduct of junior soldiers, and a reconsideration of the divide between military training and ethical education. Whilst there will always be a role for classroom-based ethical education at all ranks, more focus should be given to the ethical dimension of military training, so soldiers’ practical and intuitive ethical responses are shaped from the start. References Army Doctrine. (2000). “Soldiering: The Military Covenant” Army Doctrine Publication, Volume 5. Ministry of Defence. Army Doctrine. (2010). “Operations” Army Doctrine Publications. Ministry of Defence. Beevor, A. (1991). “Inside the British Army”, Reading: Cox and Wyman. Bourdieu, P. (1977). “Outline of a Theory of Practice” Cambridge: Cambridge University Press. Bourdieu, P. (1984). Distinction: A social critique of the judgment of taste. Cambridge, MA: Harvard University Press.

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Honneth, A. (1995). “ The Fragmented World of Symbolic Forms: Reflections on Pierre Bourdieu’s Sociology of Culture” in “The Fragmented World of the Social: Essays in Social and Political Philosophy” ed. Wright, C., New York: State University of New York Press. Janowitz, M. and Shils, E. (1948). “Cohesion and Disintegration in the Wehrmacht in World War II”. The Public Opinion Quarterly, Vol. 12, No. 2, pp. 280–315. Janowitz, M. and Cottrell, L. (2012). “Sociology and the Military Establishment”, Literary Licensing. King, A. (2013). “The Combat Soldier: Infantry Tactics and Cohesion in the Twentieth and Twenty-First Centuries” Oxford: Oxford University Press. Kohlberg, L. (1971). “Stages of moral development”. Moral education, 29. Krulak, C. (General). (1999). “The Strategic Corporal: Leadership in the Three Block War”, Marines Magazine, , accessed on 28/11/2015. MacCoun, R.J.; Kier, E.; & Belkin, A. (2006). “Does Social Cohesion Determine Motivation in Combat? An Old Question with an Old Answer” in Armed Forces & Society, Volume 32, Number 4, July 2006, 646–654. Maguen, S. and Litz, B. (2012). “Moral Injury in Veterans of War” in PTSD Research Quarterly, Vol. 23, No. 1, US Department of Veteran Affairs. Marshall, S.L.A. (1947). “Men Against Fire: The Problem of Battle Command” University of Oklahoma Press: Norman. McCormack, P. (2015). “Grounding British Army Values Upon an Ethical Good” in , accessed on 04/09/16. Mead, G.H. (1972). “Mind, Self, and Society: From the Standpoint of a Social Behaviorist”, Chicago: University of Chicago Press. Mileham, P. (2008). “Teaching Military Ethics in the British Armed Forces” in Ethics Education in the Military, Eds P. Robinson; N. de Lee; D. Carrick Aldershot: Ashgate. Mileham, P. (2016). Retired Officer, British Army, author interview, 16th March, 2016, UK. Navy Command Headquarters. (2014). “TELEMETER Internal Review” in , accessed on 10/04/17. Pavlischek, K. (2009). “The Ethics of Counter-Insurgency” in The New Atlantis, Number 23, Winter, pp. 13–24. Pellandini-Simányi, L. (2014). “Bourdieu, ethics and symbolic power” in The Sociological Review, Vol. 62, 651–674. Royal College of Defence Studies. (2011). “To Consider the Ethical Component of Military Capability” Defence Academy Ethics Seminar, ed. Mileham, P.

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Sayer, A. (2004). “Restoring the Moral Dimension: Acknowledging Lay Normativity” published by the Department of Sociology, Lancaster University, Lancaster LA1 4YL, UK at < http://www.lancaster.ac.uk/fass/resources/sociology-online-papers/ papers/sayer-restoring-moral-dimension.pdf >, accessed on 04/09/2016. Schostak, J. (2006). “Interviewing and Representation in Qualitative Research” Open University Press: Maidenhead. Siebold, G.L. (2001). “Core Issues and Theory in Military Sociology” in Journal of Political and Military Sociology, 2001, Vol 29. (Summer): pp. 140–159. Siebold, G.L. (2007). “The Essence of Military Group Cohesion” in Armed Forces & Society. Vol 33, Issue 2, pp. 286–295. Soldier, A, (2016). Retired Major, Parachute Regiment, author interview, November 15th, 2015, UK. Soldier, B, (2016). Infantry Lance Corporal, Mortar Operator, British Army, author interview, July 27th, 2016, UK. Soldier, C, (2016). Infantry Corporal, British Army, author interview, July 27th, 2016, UK. Soldier, D, (2016). Infantry Private, British Army, author interview, July 27th, 2016, UK. Soldier, E, (2016). Infantry Colour Sergeant, British Army, author interview, July 27th, 2016, UK. Swartz, D. (2002). “The Sociology of Habit: The Perspective of Pierre Bourdieu” in The Occupational Therapy Journal of Research, Vol. 22. Taylor, C. (1989). “Sources of the Self” Harvard University Press: Cambridge, Massachusetts. United Nations. (1950). “Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries 1950”, Yearbook of the International Law Commission, 1950, vol. II. (United Nations 2005). Wacquant, L. (1989). “Towards a Reflexive Sociology: A Workshop with Pierre Bourdieu” in Sociological Theory, Vol. 7, No. 1. Wilkes, M. (General). (1993). “Discipline and Standards”, Ministry of Defence. Wolfendale, J. (2008). “What is the Point of Teaching Ethics in the Military?” in Ethics Education in the Military, Eds P. Robinson; N. de Lee; D. Carrick Aldershot: Ashgate. Wong, L.; Kolditz, T.A.; Millen, R.A. & Potter, T.M. (2003). “Why They Fight: Combat Motivation in the Iraq War”. Carlisle, PA: Strategic Studies Institute, July 2003, 1–1. Wood, A. (1990). “Hegel’s Ethical Thought” Cambridge: Cambridge University Press.

Chapter 8

Terror War: Complicity and Responsibility Arseniy Kumankov Terrorism has recently become one of the main threats in the field of international politics. Dozens, even hundreds, of terrorist attacks take place every year and the number is growing. It has been even reported that in 2016 terrorist attacks have been documented as an almost daily occurrence. In our everyday language, as well as in the political lexicon, we tend to define terrorism as an absolutely amoral practice and as a savage and barbarous activity. Such a definition indicates our rejection of terrorism, justly showing that it does not correspond either to the norms and rules of war, or to the constraints and restrictions on the use of violence that have been adopted as governing principles by humanity (or at least a part of it). But the question is whether such a definition allows us to understand exactly what terrorism is, where it came from and what challenges it poses. We are able to point to the moral unacceptability of terrorism as a tactic of resistance, but are we able to grasp the full extent of the problem? On the other hand, do we fall into a trap by using only a moral definition of terrorism? Do we not thereby limit our consideration of terrorism without even realizing the nature of the phenomenon? Terrorism is not only a moral issue, but do we have an epistemological understanding of it based on reason, logic and judgment, rather than solely on actions and the moral dimension of the problem? Do we really understand terrorists, their plans and goals? After all, terrorism is a phenomenon of both political and moral life. And perhaps before passing judgment on the delinquency and the unacceptability of terrorism, we need to understand a little more precisely the essence of this activity, the reasons why some people become involved in terrorist actions and, finally, who exactly can we define as a participant in such activities. After that, we can move on to the question of the moral evaluation of these activities and discuss how the normative theory of war can be applied to terrorism. * The article was prepared within the framework of the Academic Fund Program at the National Research University Higher School of Economics (hse) in 2015–2016 (grant № 15-05-0069) and supported within the framework of a subsidy granted to the hse by the Government of the Russian Federation for the implementation of the Global Competitiveness Program.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_009

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This paper is an attempt to examine the questions raised above; the question of the application of just war theory to the war on terror will be considered in a later paper. The first step is to determine who may be designated as a participant in terrorist activities and who could be identified as an accomplice of terrorism. This will allow us to construct a more complete notion of terrorism and answer the question of complicity and responsibility in relation to it.

Defining Terrorism

It is a commonplace that it is difficult to identify definitively the concept of terrorism. The simplest concepts that we all use when speaking our everyday language or the more specialist language of military ethics are always very ambiguous and can cause many difficulties and misunderstandings. In the long run, it appears that we always understand each other incompletely. And terrorism is one of those commonplace concepts that lack a clear definition. Consequently, variability in the ways of defining terrorism complicates the use of the term in discussion on more substantive and detailed subjects. It is difficult to give an unequivocal definition of terrorism, as a terrorist activity cannot be always evaluated in an unambiguous manner. People engaged in terrorist actions usually do not call themselves “terrorists”, they do not portray themselves as monsters or murderers. The negative connotations generated by the concept of terrorism compel terrorists to give different definitions of their deadly practice. They usually declare themselves to be defenders of liberty, justice, social equality, truth or something similar. As Fotion, Kashnikov and Lekea wrote “the most common argument terrorists cite is that they are engaged in a struggle against aggression, and so have just cause on their side”.1 Which of the following was a terrorist? The regicides from Narodnaya Volya (People’s Will) who killed Russian Emperor Alexander ii? Hitler, who killed tens of millions people? Anders Behring Breivik who killed 77 and injured 151 people? Members of Al-Qaeda? His mistaken belief that people supported his organization made Breivik kill his victims. All of the above killed people, but the scale of their murders is different. Does that mean that the only criterion that allows us to properly define the word “terrorism” is the scale of cruelty inherent in one or another action? 1 Nicholas Fotion, Boris Kashnikov, Joanne K. Lekea, Terrorism. The New World Disorder (New York: Continuum 2008) 120.

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Although this presumption seems to be ridiculous, this notion is something we encounter when we consider terrorism simply as a moral problem. We tend to define terrorism as an action or practice. This immediately leads us to a moral assessment of terrorism. We make this assessment quickly and unequivocally (as I intimated in the beginning of this chapter). For example, Michael Walzer declares: “terrorism is the deliberate violation of its [the political code] norms”.2 Brian Orend echoes Walzer: “from just war theory’s point of view, terrorism is always an impermissible tactic, since it involves the deliberate killing of innocent civilians – which right-thinking people view as murder”.3 This moral interpretation of terrorism as an activity that violates the normal rules and practices of resistance has been repeated by almost every author discussing terrorism. As an example, we may refer to the article written by C.A.J. Coady for the Encyclopedia of Ethics, where he defines terrorism as “the tactic of intentionally targeting non-combatants [or non-combatant property, when significantly related to life and security] with lethal or severe violence … meant to produce political results via the creation of fear”.4 Another example is Primoratz’s recent definition: “the deliberate use of violence, or threat of its use, against innocent people, with the aim of intimidating some other people into a course of action they otherwise would not take”.5 The Department of Defense Dictionary of Military and Associated Terms gives an absolutely abstract formulation: “terrorism – the unlawful use of violence or threat of violence, often motivated by religious, political, or other ideological beliefs, to instill fear and coerce governments or societies in pursuit of goals that are usually political”.6 Moral connotations again dominate in this interpretation of the term. McMahan stresses this moral dimension by a vivid example: …suppose a combatant fighting in a just war attacks a group of people whom he mistakenly believes to be enemy combatants, and attacks them intending in part to terrorize other enemy combatants. He is intentionally attacking people who are in fact innocent with the intention of 2 Michael Walzer, Just and Unjust Wars (5th edn, Basic Books 2015) 203. 3 Brian Orend, The Morality of War (Peterborough, Ont.: Broadview Press 2006) 70. 4 Cecil Anthony John Coady, “Terrorism” in Becker, Lawrence C., and Becker, Charlotte B. Encyclopedia of Ethics (2nd edn., New York and London: Routledge, vol. 3, 2001) 1697. 5 Igor Primoratz, Terrorism: A Philosophical Investigation (Cambridge: Polity Press 2013) 24. 6 Department of Defense Dictionary of Military and Associated Terms. (2010–2016) 241.

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terrorizing other members of their group. But because his mistake is factual rather than moral, he is not a terrorist.7 The moral intention to produce destruction and harm makes us interpret terrorism as a morally wrong and inappropriate way of fighting. Without moral overtones an attack on innocent people would hardly be evaluated as terrorism. However, we find ourselves in an ambivalent situation when we choose in favour of the moral definition of terrorism. On the one hand, we find ourselves in a very advantageous position, because the problems caused by terrorist acts seem to be clear and distinct. We declare that terrorism is undoubtedly unlawful, that terrorism is something bad which must be prohibited. At the same time, a moral assessment of terrorism is usually absolutely negative – it is perceived as implicitly unacceptable, as an absolute evil, as something morally illicit, because it involves the killing of innocent people. By declaring this, we acquire a truly Manichaean vision of terrorism. We assume that some of the issues related to terrorism have been clarified and now it appears that we have separated the wheat from the chaff and that we are close to an all-embracing notion of terrorism, By developing this moral approach to the problem of terrorism, we can even create a theory of just war against terrorism which will not differ greatly from what might be called the traditional just war theory. A just belligerent would have to justify the right to use force and apply it properly. However, this theory will work only for the states that struggle with terrorists. In other words, that means its application would be one-sided as it will be applied only to national armies. In other words, it would be a theory of a just counterterrorism war. The opposite side (the terrorists) is excluded, because we do not expect from terrorists any just or fair way of using violence or fighting a war. A moral definition of terrorism is fair, but incomplete. It is very vague and allows us to identify as terrorist activities even those actions that no one would call “terrorist”. For example, if we take into account the Department of Defense Dictionary cited above, it would be clear that even a brutal police operation, which affected innocent, unarmed, civilians might be understood as a terrorist action. In order to protect public peace, policemen may use violent methods against civilians. Another example, as it was described by McMahan, would be an attack by a combat unit on civilians, caused by the fact that the soldiers 7 Jefferson McMahan, “War, Terrorism, and the ‘War on Terror’” in Christopher Miller, ed.,“War on Terror”: The Oxford Amnesty Lectures 2006 (Manchester: Manchester University Press 2009)160.

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were unable to discriminate their enemy properly and thought that they had attacked enemy combatants. Such a definite prospect resulting from our definition of terrorism appears to be not completely correct. A confident division of the world into the forces of good and the forces of evil blinds us to the political dimension of the problem. Some may express doubt that terrorism is a political issue, but we come up against the ingrained habit to conceptualize this phenomenon as a moral or even religious problem. But if we examine the ideology and targets of the most active extremist groups, such as Al Qaeda, isis or Boko Haram, we will find that their motives are to a greater degree political, not religious. “If you identify terrorism as ‘evil’ rather than ‘an evil’ and if you refuse to manage, contain or limit it, then you are in danger of depoliticizing it at the same time”,8 warned Christopher Coker. That is a valuable remark which demonstrates that our hasty identification of terrorism as an absolutely evil and infernal activity deprives us of the opportunity to assess it correctly as a political phenomenon. I agree with Gilbert Ramsay’s note that “the word terrorism is presently applied in a variety of contexts where the basic issues raised by use of the term bear only passing and overlapping resemblances to each other”.9 But although Ramsay suggests terrorism should not be defined, I suggest that it is useful to describe terrorism by some of its essential characteristics. My own definition, or rather description, of terrorism will be given in the next paragraph, where I will discuss the features of terrorism, interpreted as a kind of war.

Terror War and Its Characteristics

To help identify the component parts of terrorism, I would use the term “terror war” in order to distinguish this form of war from other types of war. I would stress that “Terror War” – is not a simple rephrasing of the “War on Terror” or the “Global War on Terrorism” This term permits a more precise designation of hostilities in which terrorists, their victims and the forces opposing them are engaged. I use the term terror war in order to designate a specific type of war, or a type of a new war, that involves terrorists, states, armies and citizens. A terrorist act is something similar to a tactical operation of such a war. This is a war, not simply a criminal or brutal activity, because the scale of terrorist activities is 8 Christopher Coker, Ethics and War in the 21st Century (Routledge 2011) 3. 9 Gilbert Ramsay “Why terrorism can, but should not be defined” (2015), 8:2 Critical Studies on Terrorism, 212.

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much greater than the scale of criminal actions. If we apply Mary Kaldor’s set of characteristics of a new war to terrorism – asymmetry, low intensity, identity politics, economic predation, globalization of war and the use of tactics of terror, violence and destabilization10 – we will realize that terrorism satisfies absolutely all these criteria and that terrorist activities therefore create a state of war. Terror war, as a new type of war, appeared at a time when the state had lost its monopoly on violence, allowing social groups to struggle for their rights on their own and use lethal force in their struggle. Terror war is a type of irregular war or, to paraphrase Clausewitz, the continuation of war by other means. ­Baudrillard’s statement that contemporary war is nothing but “[the] continuation of the absence of politics by other means”11 sounds similar. Illnesses which affected the western European project of the State metastasize in this way. They disrupt social bodies and devastate those areas previously controlled by politics. When a state retreats, its place is taken by new social forces with a very specific ethos and methodology. In this context, a terrorist action may be defined as a social act, the success of which depends on the degree of destruction and fear produced – which is the main objective and a distinguishing feature of terrorism. Victory is won not on the battlefield, but by generating fear and news coverage which validate the success of terrorist acts. Another important characteristic of terrorism is that it does not address principles, or restrain violence and terror in order to legitimize the resort to arms. It is usually said that the governments are in a difficult situation now, because war is becoming an illegitimate, unpopular, and unwanted political activity. The end of ideology manifests itself in people’s unwillingness to fight and die for someone or something. It encompasses the view that the state (and only the state) is no longer able to provide political, economic and social protection. Yet this is true only for the regular participants of current conflicts. Terrorist groups use violence without any restrictions. They use violence and terror deliberately and intentionally. However, this does not mean that every terrorist group ignores moral principles as such. Most often, terrorists declare a commitment to their own specific moral code and in some cases they even genuinely follow it. Sometimes it is even said that “terror is not an act per se, nor is it strictly speaking a tactic as others have claimed: it is an emotional state, which may 10 11

Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Cambridge: Polity 2012). Jean Baudrillard, The Spirit of Terrorism (London, Verso 2003) 34.

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or may not be intended by the agent, and which may or may not occur in ­response to the agent’s act”12 as David Perry from the u.s. Army War College, ­Carlisle, stated. So terror war encompasses military, violent, social and emotional aspects. The emotional aspect of terror war and terrorist activity is extremely important. But it would be a mistake if we limited our definition of terrorism to the moral dimension of the emotional aspect. If we depict terrorists as an “axis of evil”, non-humans, animals, and crazy fanatics, that would be an incomplete and inaccurate description. Dehumanization, criminalization and defamation of the enemy is the primary weapon of mass propaganda but military ethics requires more rational and weighted arguments. A terrorist deed implies not only military, propaganda or emotional components, but also a rational aspect that is fundamentally important. You cannot compare a terrorist attack to the situation during an argument when someone in a rage begins to smash the crockery. Although smashing the crockery is an action with an important emotional component, it is unquestionably a rash act, purely affective, caused by a storm of passions; it is not planned in advance. A terrorist attack is focused on the emotional experience, but it is carefully prepared, planned, pondered, perhaps down to the smallest details. The main problem with terror war – besides killing innocent civilians – is that attacks by terrorists are usually unpredictable and we still do not know how to react to them. One way to react is to start a war on terror. But this type of reaction may be criticized as it is senseless to struggle with the type of war itself (terrorism) rather with the reasons and causes of this war. The formula suggested by Kant when he expressed his ideas on revolution is also applicable to terrorism. As Kant wrote, we cannot accept and endorse revolution and we should not take part in it because it “makes all lawful constitutions insecure and produces a state of complete lawlessness”. But if the revolution had taken place, and a new order had been installed or the old one restored – we would be obliged to obey the new power.13 Similarly, we could say that terrorism is inappropriate in all circumstances. But sometimes we would have to accept the results of terrorist acts, if they were successful and if, for example, they led to successful regime change. So, we would have called Fidel Castro a terrorist, if he had not been victorious and had not displaced Fulgencio Batista. But because he had won a war against Batista and gained legitimacy for his power he became a recognized leader of the Republic of Cuba. 12 13

David L. Perry “Ambiguities in the ‘War on Terror’” (2005), 4:1 Journal of Military Ethics, 44. Immanuel Kant, On the common saying: That may be correct in theory, but it is of no use in practice (Cambridge University Press 1970) 82.

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In other words, even just war theory presupposes that sometimes terror war is acceptable, and can be justified. Walzer states there are a few excuses that make terrorism justified. First of all it gains legitimacy when it is a response to genocide.14 There are few cases when terrorism becomes an appropriate way of fighting, but they still nevertheless exist. It means that it is possible even for a representative of the western world to imagine a situation when terrorism becomes a feasible method. In my opinion, this distances us from a purely moral definition of terrorism, with its extremely negative interpretation as an absolutely immoral, unacceptable method of fighting. Instead, we reach an epistemological description of terrorism, which identifies it as a political practice. In this regard I contend that before we are ready to evaluate this practice morally, we should understand the causes of terror war, with its conditions of fighting and objectives. This approach seems to be more productive and it allows us to understand that terrorism is a unique type of contemporary war. Leftist criticism of the western liberal or capitalist world became rather popular. Left oriented authors claim that western unifying liberal thinking led the world into a situation of global civil war, because a globalized world without national borders became more dangerous. It is even sometimes stated that the western world, with its values and the associated aggressive politics of their dissemination and imposition, caused the appearance of such a phenomenon as terrorism. For example, Giorgio Agamben writes that it was the dominance of liberalism that gave birth to terrorism. And the state, which aims only to establish security and nothing more, is always ready to impose measures which are in essence terrorist, in order to guarantee security and maintain order inside, or even outside, its borders. Notably, the safest country in terms of the perceived terrorism threat is North Korea, a country which uses genuinely terrorist measures against its own citizens. Is this not a reason to limit freedom in the most radical way, if we want to achieve security and safety? This drastic attack on personal freedoms allows Agamben to state that “security and terrorism may form a single deadly system, in which they mutually justify and legitimate each others’ actions”.15 It therefore seems, that we might create a vicious circle when trying to defend against terrorism, as the state itself acts like a terrorist by limiting personal freedoms and torturing or killing both its own citizens and suspicious foreigners.

14 15

Michael Walzer, Arguing about War (Yale University Press 2004) 54. Giorgio Agamben “Security and Terror” (2001) 5:4 Theory & Event http://muse.jhu.edu/ journals/theory_and_event/v005/5.4agamben.html.

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Participants and Accomplices of the Terror War

Our immediate aim should be to define the participants in terror war. Jean Baudrillard concurred with Agamben’s point of view concerning the anti-globalist criticism of terrorism. It was important for Baudrillard to emphasize that terrorist attacks against western countries were just a defensive reaction of third world countries to globalization. If we consider terrorism as an attempt of third world countries to protect themselves, it turns out that terrorism would again be the product of Western culture and a response to its dominance. In these circumstances, It would be a product of the West even if its advocates, its actors and supporters are representatives of other civilizations. The fact that symbolism and eccentricity are important for Western culture, is why the rest of the world chooses such a cruel method of fighting. An act of terrorism fixes our attention and this promotes the commission of a further act. That’s a dialectical circle. Despite the fact that the Western world is formally the victim, it remains deeply liable and, according to Baudrillard, even guilty for the attacks made on it.16 Baudrillard again offers a moral interpretation of terrorism, but it seems that he clarifies something about this phenomenon. Terrorism is always a result of the interaction of two cultures, nations, value systems. It is a response, a political gesture, not only religious or social. In fact, Baudrillard identifies a certain logical structure to terror war. He does not justify it, but comprehends it, understand its structure. For him, terrorism is a symbol of the defeat of globalization; and a breakthrough of singularities, in other words, quite separate from the heterogenous groups who perpetrate it. Terrorism is a struggle of singularities against total global domination, against the hegemony of the West. Terrorism remains immoral, but globalization is immoral as well. In some sense, we see here a situation which mirrors the one that is presupposed by just war theory. An unfair attack in response to the unjust global offensive by the West becomes partly legitimized. Maybe it is not legitimized in the sense of law and morality, but we may discover an ontological foundation for it. “Without this deep-seated complicity, the event would not have had the resonance it has, and in their symbolic strategy the terrorists doubtless know that they can count on this unavowable complicity”.17 Here Baudrillard treats complicity as an endorsement, the authorization of the actions of the terrorists who attacked the United States in 2001. One state attained such power that it could not but cause concern, envy, and hostility from other countries. 16 17

Jean Baudrillard, The Spirit of Terrorism. (N 12). Jean Baudrillard, The Spirit of Terrorism. (N 12), 6.

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Baudrillard writes from a French perspective, but similar infamous declarations in relation to the September 11 attacks could be heard in Russia too. Some people proclaimed “this is what Americans deserve, it serves arrogant America right, and is a punishment for being too shameless”. However, we must remember that if terrorists are ready to hit the strongest and most secure of countries, they can hit all the rest. Unfortunately, this has happened many times in Russia. Sometimes these attacks were particularly cynical, like the Beslan school siege in 2004. And such attacks have also happened in the majority of European capitals, in London, Madrid, Paris, Brussels. All these cities are clearly major centres of the Western world and the symbols of its culture, wealth and prosperity. There is another meaning in Baudrillard’s words. He thinks that terrorism is an implicit masochistic desire of the West to harm itself, or in any case, to see the collapse of its excessive power. As Baudrillard writes, “it has been said: ‘God cannot declare war on Himself’. Well, it seems that He can. The West, being in the position of God (divine omnipotence and absolute moral legitimacy), has become suicidal, and declared war on itself”.18 But we can take a lot more from the words of Baudrillard than a simple description of terrorism as a result of an anti-globalization struggle or a self inflicted injury by the West. We should note the high level of complicity inherent in terror war. There is no doubt that complicity can be found in the implicit will of the West to strike at its own power. It is not only that we in some way want terrorists to attack us (as Baudrillard thought). Our complicity in the attack on the leaders of the West is revealed not only by the willingness to inflict a self-imposed wound. Complicity in the terror attack also manifests itself in two other ways. Firstly, a person can take part in the terror war if he or she becomes the victim of a terrorist attack. If he survives, whether injured or not, he becomes for a period of time a soldier, a combatant. He feels that the war is being waged against him, and he gains an opening to use force in response. Terrorists are the direct participants in the terror war, but the victim of terrorism engages in war as well. He could attack the terrorists, to distract them, to build some sort of shelter, or simply show other victims the path to safety. In other words, he is not just a passive participant, a mere victim. Such a person becomes an active participant in the attack, a real fighter or a soldier in the terror war. Do the principles of just war theory work in this situation? I estimate that this is true for only some of them. In such circumstances, a person has an evident just cause to resort to violence or even to take up arms. Such a person 18

Jean Baudrillard, The Spirit of Terrorism. (N 12) 7.

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defends himself, his life and possibly the life of other victims of the attack beside him. Does this situation violate the legitimate authority principle? Of course it does, because the just war theory presupposes a collision of states or groups with a legitimate leader. Only a person endowed with authority may make a decision on the conduct of war against the enemy. But the state does not provide victims of an attack with the right to use force. That is why their actions are not legitimatized in the conventional sense. It is the very nature of the terrorist act which legitimizes the actions of such a person. In a literal sense, this situation is a temporary and local termination of the social contract when an individual regains the opportunity to protect himself. Thus we find ourselves in a time when effectively private wars between a man and another man or a community, as described by Grotius, once again become possible. An individual is able to struggle for his life and even dispose of it as he chooses. In doing so, he violates the principle of the probability of success, firstly because, being a victim of an attack he does not have the time to evaluate his chances of winning, and secondly, he knows nothing about the strength of the terrorists, and therefore he is not in a position to evaluate them. The principles of proportionality and right intentions are not much of a problem, because if a person responds to a terrorist attack, the use of force in this case is certainly acceptable, adequate and justified. Since such a personal war with the terrorists will not last long, and the only intention of the engaged victim is to protect himself or other people, there would not be enough time to give way to other intentions that could replace his initial intention. And, finally, this private struggle apparently satisfies last resort principle, if last resort has any meaning when you are under attack. A person caught up in a terrorist attack had no choice; he is a victim that is why he has an absolute right to fight back. It was the first element of complicity which presupposes that a person is directly involved in the terrorist act. Another aspect of participation in the terror war is associated with the following subsequent change to political life. There is (among others) a notable sentence in Baudrillard’s essay “The Spirit of Terrorism”. Baudrillard explains, as typical for the present time, the total involvement of a person in politics, and as a consequence, in wars and concludes “they did it, but we wished for it”.19 He means that leaders, such as those of the usa, are rejected in the end even by their allies. However, we should pay close attention to the word “we” in Baudrillard’s sentence. The French philosopher identifies this “we” that is able to oppose itself to others, that makes decisions and, subsequently, can and must be responsible for them. This “we” is formed and exists due to the work of the media, understood in the broadest 19

Jean Baudrillard, The Spirit of Terrorism. (N 12) 5.

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sense and here we move on to next key feature of terrorism, which is its media component.

Terrorism and Mediatization of Politics

It is the media, and in particular what is called Web 2.0, that allows this “we” to constitute itself. This new media appeared contemporaneously with “new wars”. The most important effect of the changes in the media is the great degree of involvement of media users in the process of creating media products, coupled with a higher distribution speed of these products, i.e. news and messages. The media provide global integration and make borders transparent, creating a common will, or at least an illusion of the existence of a common will. Millions of people around the world painted their profile photos on Facebook in the French tricolor after the terrorist attacks in Paris in November 2015. This operation made them complicit in those events in the blink of an eye and enlisted them in the new form of war. The front line now runs not only through the battlefield where army units meet, it crosses our kitchens, studies and offices. The enemy, from whom we are separated physically by hundreds of kilometers, appears to be incredibly close. And that became possible only as a result of the development and sophistication of the media system. We are all accomplices of terrorist attacks, simply by watching the news on television or reading an online newspaper. Moreover, we are able to observe every step that terrorists, police units or the army make. Now we can watch how the special forces unit assaults the building where the terrorists are installed. And these same terrorists can watch the same attack on themselves on the same tv channel. The involvement provided by the new media reinforces the notion of the global civil war against terrorism. Now every consumer of media messages or every new media user may join this war and respond to the terrorist attack. We can use Facebook to repeatedly post our reaction to the Paris attacks. People all over the world demonstrated their rejection of violence and cruelty and their steadfast and fearless faith in the rejection of such remedies. Another recent example is a story of Iraqi insurgents fighting against isis terrorists. They created an account on Instagram (a photo- and video-sharing social network), and published pictures of captured terrorists and asked their followers to vote for their execution or to save the lives of the captives. It is easy to assume that the majority voted for death. This co-experience of the event in real time, monitoring the event live around the clock was not available to people in the past. This is one way in which we are very different from them.

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However, the media is important for terrorists as well. An important moment in the process of planning a terrorist attack is its coverage in the media. The development of terrorism was accelerated in the last century. Modern society, on the one hand, is highly individualized and privatized. But on the other hand, the development of technology and the media significantly simplifies the process of distributing information, as compared to previous ages. That is why terrorism, which cannot exist without detailed public media coverage, has become so effective and widespread in recent decades. In other words, terror war is an absolute product of the 20th century and contemporary history. A new war in its purest form as stated above. According to the Global Terrorism Database and prio, the number of reported terrorist events per year worldwide shows 2 growth spikes, namely the end of 1970s and the end of 1990s. Since 2004 the number of international terrorist incidents has been steadily growing.20 The end of the 1970s was the time when terrorists left behind the tactic of targeted killings and began to carry out large-scale actions. Although terrorism is a quite old fashioned practice, it has transformed itself into the phenomenon as we know it during the last few decades. It can be said with confidence that the change of modus operandi was associated, among other things, with the colossal transformations in communication systems and information processing and with the increasing mediatisation which affected all forms of public and private life. These processes became even more evident and important in the new millennium. Terrorism needs media to create the environment in which it thrives. The media allows the immediate dissemination of information about an attack. The media contribute to the achievement of one of the terrorists’ tactical ­objectives – the spread of panic. Being dependent on the specific environment provided by media, terrorists usually make use of the language of media that was created by the West, thereby amplifying the inconsistency of international terrorism. Just as it uses weapons invented in the west, it applies western discursive practices. That does not mean the west is culpable for creating a language that may be appropriated by terrorists for their use. Similarly, it would be strange to accuse Kant, Hegel or Nietzsche of being responsible for the atrocities of the Kaiser’s Germany or of Nazi leaders, simply because they had read these authors. But the fact that terrorists have used the language of the western media means that the west must consider how to manage this language. Perhaps that will not allow us to eradicate terrorism completely, but at least it will not allow terrorism to spread even further. 20

prio’s Conflict Trends project .

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If we carefully watch the infamous but well-known snuff videos distributed by isis members, we realize that they are made using western media techniques and are technically a high quality media product. They are made specifically so that they can be fully broadcast on public tv channels worldwide. We can find more explicit and violent videos on the Internet, but there are a number of videos which are obviously tailored to the format of western channels. We can clearly distinguish between the victim and the e­ xecutioner in these videos because they wear different types of uniform. The process of execution is usually not shown, or shown only partially, so that we cannot not see the most brutal scenes of killing. Terrorists speak good English. James Foley’s beheading could be an example that confirms that all these videos are intentionally produced for a western audience. However, we should return to what was said by Baudrillard or Agamben. The West is partly responsible for terrorist attacks and encourages the development of terrorism by its actions. The desire to build a global political and economic system. as well as the unification of moral and social standards provokes resistance. That does not mean the west is totally guilty, we just have to keep in mind that terrorism would be something inherent to the development of the global order. But does this mean that an individual citizen of the usa, Russia or France is personally responsible for this situation? Here we are faced with a difficult problem of political responsibility, and more precisely with the individual responsibility of a person for the actions taken by their own state and their political leaders.

Complicity and Political Responsibility

The question of responsibility becomes a problem of particular importance in this context. We become responsible for the war, not just as a part of a political body, not just as citizens who voted for the political party supporting a war, but as soldiers participating in this war. This responsibility manifests itself at all stages of a new war: in decision making, in establishing its forms and extent, in determining the degree of its intensity, in the construction of the image of the enemy and in how the war ends. The German-American philosopher Hannah Arendt linked responsibility with the ability to make a judgment. We must therefore ask how can we transform our passivity into active responsibility and how can we convert passive complicity into active inclusion in the political process. For Arendt, judgment was a key principle of political philosophy. And this became even more relevant as the ability to express judgments, as well as the

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ability to think critically, became the crucial and determining feature of a human being. It is clear that after Kant, Arendt associated judgment with reason, which is responsible for reflection, while mind was interpreted almost as common sense and as the ability to create personal rules.21 In turn, Arendt defined judgment as a specific ability to know common rules and norms and to feel the difference between right and wrong, correct and incorrect, permissible and impermissible. Here we discover the roots of political responsibility that from Arendt’s point of view should be understood only as collective responsibility. Political responsibility presupposes careful and consistent application of reason by every member of a political group. As Arendt wrote: …two conditions have to be present for collective responsibility: I must be held responsible for something I have not done, and the reason for my responsibility must be my membership of a group (a collective), which no voluntary act of mine can dissolve, that is, a membership which is ­utterly unlike a business partnership which I can dissolve at will.22 Responsibility is something you could not refuse or absolve yourself of if you declare yourself as being a part of a political body. You are responsible for the past and future of a society simply because you are a member of this society. There was one important caveat in Arendt’s theory of responsibility. She was convinced that collective responsibility did not presuppose collective guilt. ­Political responsibility and culpability were strictly separated. A person may be culpable privately; in a moral or legal sense. Although a nation could be responsible for its political leader’s wrong policy or, on the contrary, for his noble behavior, this nation could not be guilty for his wrong decisions or aggressive politics. Guilt, from Arendt’s perspective, is always a matter that relates to one person. Responsibility is political notion and it remains common as soon as politics occupies the public sphere, while guilt is a legal concept which applies at the individual level. Arendt noted in this regard: “if the person happens to be involved in a common undertaking, as in the case of organized crime, what is to be judged is still this very person, the degree of his participation, his specific role, and so on, and not the group…”.23 21 22 23

Hannah Arendt, Lectures on Kant’s political philosophy (The University of Chicago Press 1992). Hannah Arendt, Responsibility and Judgment (Schocken 2005) 149. Hannah Arendt, Responsibility and Judgment (N 23) 44.

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That means, among other things, that we should not blame the whole ­ ation instead of condemning its political leader or a general responsible for n any adverse developments. In the context of terror war that means that civilians are never guilty of the attacks carried out on them, while they might be collectively responsible for them in some circumstances. At the same time, they are all also responsible for repelling terrorists. Or, if we scale this notion up to the global level, that would mean, if international terror war breaks out, every political power, all mankind would have to take part in this war.

Responsibility and Terror War

I have contended that all of us, at least those who consume media products in all their diversity, may be named accomplices of terror war. Then I discussed the problem of political responsibility and now I will link together the questions of responsibility and terror war. The question of the participation of the military in counter-terrorism operations is often raised. This duty is especially difficult when undertaken at home, when the unit is forced to wage an offensive war on its own territory. This is a paradox that was also inconceivable in the past. But now it is a normal state of affairs, the army or the police attack the enemy in the seat of government, located in a city, which was considered to be one of the safest and most peaceful places in the world. It is important to note again that the whole Earth becomes the battlefield. We cannot predict where terrorists will strike next. Just as we do not know exactly who will become terrorists, because new groups arise constantly and they are too small to allow their appearance to be tracked in a timely way. Another point is that each of us becomes a soldier of a new global war. Global, not in the sense everyone fights with everyone, or a state with all other states and non-state groups. Global means that terrorists can strike in any part of the word and you cannot take any preventive measures in order to repel this strike. Everyone now is an accomplice of the war, even if he is just a spectator who is watching a television report or reading news on the internet. We are accomplices, but it does not mean that we are guilty. Our responsibility is purely nominal. It is possible, but pointless, to attribute the accusation of guilt to every man or woman of Western civilization. We might as well say that a newly born child is guilty of environmental pollution. In some sense this is true, he is a part of the human race which pollutes the environment, but it would be pure speculation to blame him and call him culpable for that. However, the question of guilt, and I agree here with Hannah Arendt, is always

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a question of the deeds of a particular person. As discussed before, Arendt distinguished between guilt and responsibility. Guilt involves my personal participation or non-participation, action or inaction, while political responsibility is a collective characteristic. Thus, as representatives of European or Western civilization and, therefore, as accomplices of terrorism, we bear a certain degree of responsibility for the ongoing attacks, while we are not guilty for them.

Conclusion

In “Just and Unjust Wars” Walzer notably notes that if we cannot identify our enemy, or distinguish combatants from non-combatants, then the only appropriate and just solution would be to concede our defeat. That is a wonderful example of true just war thinking, strict but fair. However this rule does not suit for terror war. Here we take a defensive position which is why we are forced to fight, at the very least to prevent an even greater wave of terrorism. Perhaps the war on terror will not lead to a decisive victory and terrorism will not be annihilated, but this war could take a symbolic meaning. It must show that we are ready to strive, to use force, to fight for ourselves, in order to counter aggression and violence. After all, that is another responsibility that Western civilization bears.

Chapter 9

Is There Anything New under the Sun? From Holy War to Modern Terror: On the Importance of Religious History for Understanding Terrorism Markus Thurau Based on the thesis that the discussion about religious terrorism has increased dramatically in recent years, this essay asks the question whether this is something new. Since it is obvious that we perceive this type of terrorism as a major threat, it is helpful for developing an adequate counter-terrorism strategy and for assessing its ethical implications as to whether the current form of terrorism is a new type which cannot be compared to earlier forms, such that any knowledge of old or traditional terrorism must be “considered irrelevant at best, and obsolete and anachronistic, even harmful, at worst.” It is why also those who are convinced we are confronted by a new type of terrorism assume “that the old paradigms should be discarded and replaced with a new understanding.”1 A lot depends on the decision on this issue, because those espousing a new form of terrorism regard the religious element of current-day terrorism to be the main differentiating feature, such that this new terrorism is referred to as religious and is distinguished from any older, secular form. Given the fact that terrorism is not only a highly complex and extraordinarily heterogeneous phenomenon, the exploration of which therefore calls for a whole variety of scientific methods, it will be attempted in the following to take the religious element of terrorism into account. By discussing more recent research findings, the intention is to answer the question of the extent to which religion underlies terrorism (1). In a second step, I will seek to explore this issue exemplarily through a critical reading of Philippe Buc’s book titled “Holy War, Martyrdom, and Terror”. I will re-examine the main thesis of this highly controversial book, which can be considered a unique and independent approach to this issue. His close look at the history of violence in Christianity offers a deep insight into a specific religious tradition that might help to understand religious violence and terror in general. Particularly in looking to Oslo, the venue of the 6th Annual Euro-isme Conference – and the place where that country’s 1 Martha Crenshaw, “The Debate over ‘New’ vs. ‘Old’ Terrorism” (2008) 4 Studies in Global J­ ustice Values and Violence: Intangible Aspects of Terrorism 117.

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most significant terrorist ­attack was not attributable to Islamist terrorism but had its roots in an obscure mixture of violent Christian ideas – an insight into the relationship between Christianity and violence will obviously prove helpful in examining the phenomenon of religious terrorism. I consider a historical approach to be the best-suited for deciding to what extent terrorism is religiously motivated (2). On the basis of previous explanations, I will, in a third step, strive to arrive at conclusions that, in my view, can enhance the historical and ethical understanding of the complex phenomenon of terrorism (3).

To What Extent Does Religion Underlie Terrorism?

The Dispute about New and Old Forms of Terrorism In 2008, Martha Crenshaw summarised current research on the question of whether current terrorism should be referred to as a new and, thus, unknown phenomenon. Research on terrorism has, in recent years, and particularly since 11 September 2001, produced a new approach, which Crenshaw has described as a “new terrorism school”.2 In her article, Crenshaw clearly and convincingly took the position that current terrorism does not deserve to be characterised as “new”. This did not, however, put an end to the debate, but encouraged numerous new voices in support of differentiating between old and new terrorism, as well as new critics of such a differentiation. Crenshaw’s argument was: “­Today’s terrorism is not a fundamentally or qualitatively ‘new’ phenomenon but grounded in an evolving historical context. Much of what we see now is familiar, and the differences are of degree rather than kind.”3 Even though a look at the history of terrorism can plausibly substantiate this argument, since current terrorism demonstrates, from a long-term perspective, many more similarities with terrorism of former times than it does differences,4 as will be discussed in greater detail in the second part of my essay, the question nevertheless remains whether our answers in response to present-day terrorism can remain the same. Are the old answers really adequate? Is it sufficient to develop a concept limited to security policy aspects that excludes religious factors? Can we simply ignore the broad theological discourse that jihadists conduct on the internet? Will we thus obtain an insight into phenomena such 2 An overview of the debate can be found in: Alexander Spencer, “New Versus Old Terrorism” in Richard Jackson (ed) Routledge Handbook of Critical Terrorism Studies (Routledge 2016) 124. 3 Crenshaw (n 1), 120. 4 Cf.: Andreas Gofas, “‘Old’ vs. ‘New’ Terrorism: What’s in a Name?” (2012) 8 Uluslararası İlişkiler 17.

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as ­self-radicalisation – a phenomenon where people who have had hardly any contact with terrorist groups apparently find themselves so attracted by the religious-political language of terrorism that they develop a willingness to commit violent acts. Is it really sufficient to cite only social reasons in this regard and to leave it to the social and political sciences to find solutions? While Crenshaw is right in that religion and terrorism are wrongly understood if the explanation for modern terrorism is seen solely in “religious beliefs”, it appears to me to be equally wrong to exclude these entirely when searching for explanations and answers. Even if religion was not thought to be the main cause of p ­ resent-day terrorism, it might nevertheless be an important ethical response to it. Allow me to give an example in this respect. Over the last few years, three theoretical approaches that seek to explain the impact of religious faith in conflict have become well-established within the social and political sciences: the primordial, the constructivist and the instrumentalist approach.5 Although all of them are good at describing the relationship between religion and ­violence theoretically, they do not always lead to satisfactory solutions in practice, especially when it comes to analysing the motivations and strategies of religiously driven terrorist groups. The instrumentalist approach, for instance, which is the most popular of the three, argues that religion is only used as an instrument within conflicts and is not violent per se. For that reason there is no n ­ ecessity to take a closer look at religion and religious argumentation, but rather at the other factors that have shaped the conflict: the social, economic or ethnological factors. These factors are important, without any doubt. Nonetheless, I would advocate that we not only explain the phenomenon from the outside, as in a “bird’s-eye view”, but also analyse and understand religious violence and terrorism “from the inside” by dealing with its ideological structure, which can tell us something about the sinister narratives of terrorist groups. I concur here with Peter R. Neumann, who believes that it is not possible to explain terrorism without considering its ideas and ideologies: “Ohne politischen oder religiösen Inhalt ist keinem klar, wer Feind und Freund ist, wofür gekämpft wird und warum sich das Kämpfen lohnt.” (Own translation: “Without any political or religious substance it is not clear to anybody who is friend or foe, what is being fought for, and why it is worth fighting for.”)6 5 Andreas Hasenclever and Volker Rittberger, “Does Religion Make a Difference? Theoretical Approaches to the Impact of Faith on Political Conflict” (2000) 29 Millennium: Journal of I­ nternational Studies 641. 6 Peter R. Neumann, Der Terror ist unter uns. Dschihadismus und Radikalisierung in Europa (Ullstein 2016), 84.

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At this point it is necessary to consider one objection to this approach: I­ sabelle Duyvesteyn, in her article “How New Is the New Terrorism?” presents a historical slant on this question. She discusses current research agendas and seeks to demonstrate “where and how historical studies could contribute to and shed a different light on the discussion of the nature of terrorism.”7 Based on such a historical perspective, she reaches a conclusion similar to the one presented by Crenshaw a few years later: The new terrorism can both be seen as political and religious at the same time. These factors overlap to a large extent. Furthermore, as the historic examples have hinted, this is not a new phenomenon. The old terrorism also contained religious elements and qualities and some groups fighting to realize ideological aims, such as Marxism, had universal application. Also in respect to the aims terrorists strive to realize, more continuity is indicated to exist than hitherto might have been realized.8 Although Duyvesteyn prefers “a proper historical investigation” into the history of terrorism, she nevertheless argues that “assigning motivations” such as ­religion should not be central because the motivations of terrorists are often multiple and overlapping.9 She therefore advocates largely excluding the ideological element from the examination of current terrorism. By doing so, however, she unduly limits the question regarding religious or ideological elements of current terrorism. Even if it is not possible to clearly pinpoint religious or ­ideological motives, the question nevertheless remains how ­terrorists  – ­apparently in good conscience – can invoke their religion. Also, even if it is not possible to clearly identify or name what motivates terrorists, it still makes sense in terms of combating terrorism to address the question of how to ­prevent the misuse of religious meaning and religious communitisation of ­terrorist activities. It may be objected, furthermore, that the preference for a historical understanding of terrorism, and a “thematic approach” that investigates the ideological and religious motivations, are not mutually exclusive.10 7 8 9 10

Isabelle Duyvesteyn, “How New Is the New Terrorism?” (2004) 27 Studies in Conflict & T ­ errorism 439, 443. Duyvesteyn (n 7), 447. Duyvesteyn (n 7), 450. A noteworthy book that successfully applies a thematic approach has been produced by Roger Griffin, Terrorist’s Creed: Fanatical Violence and the Human Need for Meaning (­Palgrave Macmillan 2012). The focus of his historical work consists of “considering the non-instrumental rationales, the symbolic, existential, metapolitical motivations of ­terrorist acts.” (p. 7).

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Exploring the Ideology and History of Terrorism In his book on “Political Violence in Judaism, Christianity, and Islam. From Holy War to Modern Terror”, Jonathan Fine is convinced that there has been a shift from secular to religious political violence, thus making it necessary to re-evaluate the concept of terrorism. He suggests that the emphasis be placed not only on the political strategy and tactics of religious terrorism but also on its ideological and cultural origins. Fine argues that “The study of modern religious fundamentalist politics illustrates how religious political leaders use their holy texts to serve political agendas and […] to justify the use of violence. To better understand this phenomenon, a comparative historical and philological analysis of the past is in order.11 After analysing the historical origins and textual sources of religious violence in order to understand the unique stance of religion in regard to violence, Fine takes a look “at how these ideas have been translated into practice by radical fundamentalist groups in modern times”. Fine argues that all three religions nowadays have their “own expressions of violence, resulting from dramatic changes” they have had to face in modern times,12 such that traditional ancient or medieval and, more or less, unproblematic attitudes towards war and peace have found “new incarnations”13 that are causing many a problem in the present day and age. This argument coincides with findings from recent research which considers that terrorism “is a phenomenon essentially linked to modernity and fundamentally rooted in modern culture.”14 In his book, Fine consistently explores “the differences and similarities between the early religious sources and their modern interpretations by contemporary Jewish, Christian, and Muslim radicals.” Using this method he was able to make two important observations: First, all of them draw on their religious texts and past to legitimize their contemporary political violent agendas. This is why it is so important not to downplay their political ideologies. It is imperative to study the religious sources they draw upon and teach them if we want to understand and cope with their strategies. Second, the war against their enemies is defined and described as being a total war, waged on both earthly and cosmic levels, and much broader than their secular counterparts. 11 12 13 14

Jonathan Fine, Political violence in Judaism, Christianity, and Islam: From Holy War to modern terror (Rowman & Littlefield 2015), 2. Fine (n 11), 124. Fine (n 11), 218. Giovanni Mario Ceci, “A ‘Historical Turn’ in Terrorism Studies?” (2016) 51 Journal of Contemporary History 888, 893.

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This attitude has direct implications on their choice of strategies and tactics, as well as the length of the conflict, which is usually longer than secular conflicts.15 Following Mark Juergensmeyer’s book “Terror in the Mind of God: The Global Rise of Religious Violence”, Fine argues that religious violence is able to expand its view of the enemy to include an entire civilisation. It fights a war that takes place not only on an earthly but also on a cosmic level. This cosmic dimension “evokes a conflict, not between soldiers or armies but between the metaphysical forces of good and evil, belief and disbelief, order and chaos, and truth and falsehood.”16 Researchers like Fine who assume that religious terrorists are driven by their belief in such a cosmic level think that this is important for ­understanding why religious terrorism is able to cause such extreme violence and has such a high lethality factor. This argumentation seems to be quite typical of the assumption of there being a new terrorism, especially with regard to the factor of lethality. Bruce Hofmann describes the problem of religious terrorism in a similar manner: Whereas secular terrorists regard violence either as a way of instigating the correction of a flaw in a system that is basically good or as a means to foment the creation of a new system, religious terrorists see themselves not as components of a system worth preserving but as “outsiders,” seeking fundamental changes in the existing system.17 Although I am not convinced that religiously motivated terrorists are concerned about particularly high death rates but rather about staging their ­violent “ritual drama” as effectively as possible, Fine’s approach needs to be distinguished from that of proponents of an alleged “new terrorism school”. That is because Fine nevertheless considers it absolutely necessary to carefully examine the religious history and historical role models of terrorism in order to understand present-day terrorism. Because of this historical approach, he does not perceive it as a completely new phenomenon but more as the “revival” of an older phenomenon which, under the conditions of the modern age, leads to new and frightful consequences. Such an assumption pushes the 15 16

17

Fine (n 11), 221. Reza Aslan, “Cosmic War in Religious Traditions”, in Mark Juergensmeyer, Margo Kitts, and Michael Jerryson (ed) The Oxford Handbook of Religion and Violence (oup 2013) 260, 260. Bruce Hofmann, Inside Terrorism. Revised and extended edition (Columbia University Press 2006), 89.

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question about the status of terrorists as system-destroying “outsiders” with an enormously high “factor of lethality” into the background. Fine, for example, does not overly dramatise terrorism in its new form and reduce it to an Islamist terror such as is omnipresent in the media, but rather interprets it as a misguided relationship between religion and the modern age. It is thus only consistent that he in no way limits himself in his analysis to the history of Islam and a violence-condoning interpretation of the Quran, but also points out similar structures in Christianity and Judaism.18 In his book, Fine makes two important statements about the relationship between religion and terrorism: 1. Contemporary terrorism can be called religious, not only because it defines itself as such but also because political agendas can be pursued with religious motivations. 2. Counter-terrorism should pay attention to the ideological structure in order to find an appropriate response. Terrorism is invariably based on ideological foundations, but since these ­differ in terms of their history, it would be sensible to see just how much they ­differ, for which purpose a basic knowledge of religious history is necessary. I­ nsistence on the importance of an ideological structure is consistent with new research on the terror organisation “isis”. Florence Gaub, for instance, emphasises that isis should be treated as a cult, because this has an important “strategic implication”: [I]f isis is indeed a cult, it cannot be fought as a mere terrorist organisation or a proto-state with territorial ambitions. Cults do not recruit and indoctrinate like other political entities; they do not perform like mere militias on the battlefield; and they follow their own warped logic. Cults are more flexible, more cohesive, more agile and ultimately more challenging than other enemies. Most worryingly, leaving a cult is a difficult endeavour, which means that isis returnees are very likely to remain ­attached to the organisation, regardless of their experience with it. Security services will have to bear isis’s cultish characteristics in mind as they work to reduce the threat from the Islamic State.19 Although she endeavours in her article to clearly distinguish cult from religion, and isis from Islam, she also has to admit that both “share a similar language, and both are concerned with explaining the origin and nature of the universe.

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This is another example showing that Fine is not among the representatives of a “New Terrorism School”, since he is of the opinion that the rise of modern religious violence in Judaism began in the 19th century, and that of Christianity already in the 16th century. Florence Gaub, “The Cult of isis” (2016) 58 Survival, 113, 113.

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In name and rhetoric, isis claims not only to be Islamic, but indeed to ­represent the only true version of Islam.” This quotation, in my opinion, brings us closer to the importance of religious history. Gaub states that “cults often make use of established religious scripture and beliefs to gain credibility and legitimacy.”20 This illustrates quite well, I think, just how significant religious history is for analysing modern terror: given the peace potential of religions and the many examples of practiced non-violence that abound in religious history, it can be said that religious convictions are not per se violent. It is therefore no exaggeration to say that the world religions, at least, see themselves as orientated toward peace rather than violence. Those who accept these statements will find it doubtful, if not contradictory, that religion frequently appears in connection with violence and the legitimation of violence. This ambivalence may be resolved by investigating in this study how, in the course of their history, ­religions have reacted specifically to violence in spite of their potential for peace and non-violence, how and why religious groups, cults or institutions have legitimated violence, and how they have helped to overcome violence. On the Criticism of the Religious-Secular Divide In 2011, political scientists Jeroen Gunning and Richard Jackson wrote an article titled “What’s so ‘religious’ about ‘religious terrorism’?” In their article they argued “that the distinctions typically drawn between ‘religious’ and ‘secular’ terrorism are problematic […] and that the term is misleading in its assumptions about the motives, causes and behavior of groups classified as ‘religious terrorist’.” They argued “that the behavior of those thus labelled is so diverse and often so indistinguishable from their ‘secular’ counterparts, that the label has little meaning without further qualification, while simultaneously obscuring important aspects of both ‘religious’ and ‘secular’ violence.”21 Because the framework of religious terrorism used in many studies is not only misleading when it comes to understanding the complex phenomenon of religion and violence, but also leads to “very real, and often counterproductive, political consequences”, they sought to “urge scholars to rethink their use of the term and explore alternative ways of analyzing the role of religion in contemporary political violence.”22 The authors deem that the simple fact that a group considers itself to be religious says hardly anything “about its actual goals, attitudes and behavior […] While the more nuanced terrorism scholars acknowledge 20 21 22

Gaub (n 19), 113–114. Jeroen Gunning and Richard Jackson, “What’s so ‘religious’ about ‘religious terrorism’?” (2011) 4 Critical Studies on Terrorism, 369, 370. Gunning and Jackson (n 21), 382.

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this, their unproblematized use of the label ends up creating the illusion of a separate category of violence that is distinct from its secular counterparts.”23 Even when agreeing with the authors that simple role assignments fall short of the mark, particularly when they form the basis of political decisions, it is nevertheless doubtful that the issue of religious legitimation strategies should be completely excluded where the use of violence is concerned. Both authors excellently point out the ambivalence of religion. Even though their conclusion, that “religion and religiousness are notoriously inadequate predictors of behavior and that beliefs are not determining at all”,24 is quite far-reaching, the two authors nonetheless do not deny the significance of religion completely. They merely question that there is an “automatic causal link between beliefs and behavior”. They thus suggest that the term “religion” be applied in a specific way. As long as religion is problematised and historicised as a particular discursive construct, and a particular manifestation of religious ideas and practices is contextualised as a living community of believers, rather than a set of text-based beliefs, it is useful to retain as a category.25 An important reason for this re-evaluation of the term “religion” is the calling into question of a strict differentiation between religious and secular, which is reminiscent of Duyvesteyn’s objection. Various researchers exploring historical terrorism and violence have grappled with this problem and asked, as a result, if we are really dealing with two clearly distinguishable description categories. In his book “The myth of religious violence”, William T. ­Cavanaugh extensively addresses the problems arising from a strict religious-secular dichotomy and expresses considerable doubts about this dichotomy. Similar to Gunning and Jackson, he argues that this dichotomy is highly artificial and has been imposed on the issue from the outside.26 According to Cavanaugh, this differentiation narrows the view of violence by addressing only one form of violence, which is problematised as religiously motivated, while seeking or 23 24 25 26

Gunning and Jackson (n 21), 378. Gunning and Jackson (n 21), 381. Gunning and Jackson (n 21), 383. However, Cavanaugh goes beyond that, claiming that this differentiation is an invention of the modern age which is part of a broader Enlightenment narrative. To him, this differentiation is not a “conscious conspiracy”, but rather “part of the general ­conceptual ­apparatus of Western society.” See also: William T. Cavanaugh, The Myth of Religious ­Violence: Secular Ideology and the Roots of Modern Conflict (oup 2009), 183.

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even needing to characterise other forms as unproblematic. Cavanaugh therefore argues that the myth of religious violence is so prevalent because, while it delegitimates certain kinds of violence, it is used to legitimate other kinds of violence, namely, violence done in the name of secular, Western ideals. The argument that religion causes violence sanctions a dichotomy b­ etween, on the one hand, non-Western, especially Muslim, forms of culture, which – having not yet learned to privatize matters of faith – are absolutist, divisive, and irrational, and Western culture, on the other, which is modest in its claims to truth, unitive, and rational. This dichotomy, this clash-of-civilizations world view, in turn can be used to legitimate the use of violence against those with whom it is impossible to reason on our own terms. In short, their violence is fanatical and uncontrolled; our violence is controlled, reasonable, and often regrettably necessary to contain their violence.27 Although Cavanaugh’s criticism of the distinction between bad and irrational religious violence and a good and rational secular violence is quite convincing, it remains unclear in regard to current terrorism research whether people who kill in the name of God can be labelled religious or not. What are their real motives? Are we not at all capable of identifying ideological and religious elements? Does not criticism of the religious-secular dichotomy obscure all questions regarding motives and ideological structures that legitimate violence? Is every violent act either religious or secular? In regard to these questions, the criticism of the religious-secular divide has some limitations. The argument that the religious-secular dichotomy narrows our view concerning the use of violence and leads to a questionable qualification of violence is nonetheless of some significance and should be taken seriously. It can be understood as an expression of an increasing dissociation from, and re-evaluation of, the ­secularisation thesis, since the intensity with which religion has re-achieved a presence in the Western world, due to the terror ascribed to it, is ­radically ­challenging the self-conception of the modern age as that of a process of ­increasing rationalisation of the living environment through which religion has been pushed back increasingly out of society and limited to the private sphere. There seems to me to be one final important point of criticism regarding the strict differentiation between religious and secular: Hans G. Kippenberg 27

Cavanaugh (n 26), 16–17.

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has showed that actors who are generally described as religiously motivated ­perpetrators of violence are also capable of attributing religious meanings to secular conflicts and thus of substantially changing the course of a conflict. Due to the reality-constituting power of language, it is hardly possible to ­determine from the outside whether the underlying motives are purely ­political, since the actors are also able to attribute religious interpretations to political ­conflicts. This means that only from the actors’ internal perspective, which must be ­interpreted by way of criticism of the ideology, can it be reasonably decided w ­ hether it is possible to talk of a religious or a secular conflict. This, however, also means questioning our own evaluation system, since what we ourselves may perceive to be a purely political or secular conflict can to others be a clearly religious conflict in which, for the actors, it is not about a political fight against an o­ ccupying force but about a metaphysical fight of good against evil.28

A  Case Study: Philippe Buc on Holy War, Martyrdom, and Terror

Since the critics of a religious-secular divide advocate that the terms “religious” and “secular” be historically and culturally contextualised, I would like to present an approach that can be described as an attempt at such contextualisation. It is an approach that also examines the motives and legitimation strategies of those who perpetrate violence. In his book titled “Holy War, Martyrdom, and Terror. Christianity, Violence, and the West, ca. 70 c.e. to the Iraq War”, Philippe Buc is – like other critics of the secularisation thesis – quite sceptical about the religious-secular divide. He advocates a different concept of secularisation and he posits “that religious notions survived into modernity: they morphed into ideas and ideologies that were stripped of the supernatural and of God, but that retained similar structures.”29 By being sceptical with respect to the c­ onventional understanding of the term “secularisation”, Buc develops 28

29

Hans G. Kippenberg „Religiöse Sinn-Deutungen in säkularen Konflikten‟ in Vasilios N. Makrides and Jörg Rüpke (ed), Religionen im Konflikt. Vom Bürgerkrieg über Ökogewalt bis zur Gewalterinnerung im Ritual (Aschendorff 2005), 18; Hans G. Kippenberg „Religiöse­ Gewaltsprachen – religiöse Gewalthandlungen. Versuch einer Klärung ihres ­Verhältnisses‟ in Karl Gabriel, Christian Spieß, and Katja Winkler (ed), Religion – Gewalt – Terrorismus. Religionssoziologische und ethische Analysen (Ferdinand Schöningh 2010), 15. Philippe Buc, Holy War, Martyrdom, and Terror: Christianity, Violence, and the West, ca. 70 c.e. to the Iraq War (University of Philadelphia Press 2015), 4. He also delivers an example: “Thus, for instance, Christianity’s linear time with its promise of a better world and an improved humankind transmuted itself into the notion of progress.”

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the thesis – regarding the relationship of religion and violence – that the old concept of holy war and modern terror belong together. In Buc’s opinion, a similar structure is recognisable in both when viewing religious history from a longue durée perspective. Buc is convinced that religious concepts of violence from the past have been able to survive in modern times even without their transcendent superstructure. Fine and Buc have a central point of contact in that respect: they both assume that the present is built on an idea from the past, on its cultural framework and knowledge. Yet Buc seems to go much further by claiming that even secular violence can be understood much better if its justification strategy is retranslated into religious terms. Unlike Fine and his colleagues, Buc looks not for the dissimilarities between present-day religious terrorism and earlier terrorist movements but, instead, for similarities that transcend time. Using this approach, he comes to a surprising conclusion: even if there are no structural differences compared with earlier forms in ­regard to justifying violence, this does not mean that the motives driving modern terrorists are purely political and hence more or less secular. Based on the enormously long period covered by his study, Buc is instead able to argue that “modern religious terrorists” are “understandable, in part, through a very old looking-glass”30 – a looking-glass consisting of a specific way of thinking and arguing about the use of violence that is at least 2000 years old. To put it in the words of an attentive critic of Buc’s work: This book traces the rhetoric used by modern Europeans to justify force back to medieval exegesis and canon law. […] Ideas birthed by Augustine, Jerome, and other Latin clerics continued to be reinvented and reappropriated in order to sanctify war, revolution, and reaction, even until the present day. Subtly, Buc sides with Carl Schmitt and Ernst Kantorowicz against Hans Blumenberg: all significant justifications of modern warfare are “secularized” theological concepts.31 To give an example, in the chapter on “The American Way of War Through the Premodern Looking-Glass” he talks about the American wars that generated martyrs and heroes “whose generous blood quickly consecrates the causes for which it is shed.”32 Starting with the Crusades in the Middle Ages, and taking 30 31

32

Buc (n 29), 43. Nathan J. Ristuccia, “Review of Holy War, Martyrdom, and Terror: Christianity, Violence, and the West, ca. 70 c.e. to the Iraq War by Philippe Buc” (2015) 22 Reviews in Religion & Theology, 317, 317. Buc (n 29), 60.

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in the French Revolution, the American Civil War, and the victory speech of George W. Bush on 1 May 2003, Buc goes on in this chapter to describe not only how the use of violence by Christian soldiers and fighters was legitimated as just, but how it was possible even for those who actively perpetrated violence to be glorified as Christian martyrs because they fought for a just cause. This is, according to Buc, not an exception but an established argumentation pattern that runs like a thread through the long history of Christianity: those who fight for freedom and are prepared to lay down their lives for it serve a good cause and will receive their just reward. Buc’s conclusion: During the French Revolution, as in the Middle Ages of the Crusades or the early modern Europe of the wars of religion, martyrdom justified ­terror; the willingness to die legitimized massive shedding of blood. Conversely, the quest for order or liberty called for martyrdom. For, finally, Christianity transported and vulgarized the old Roman conception that unjust death, when avenged, lead to constitutional transformations.33 Particularly the examples from the history of Christianity highlighting the moral demands on those who fought and perpetrated violence and almost ­inevitably became martyrs in the process, allow surprising conclusions with regards to the current discussion about the concept of martyrdom: that there has been a long “coexistence of martyrdom and killing for God” in Christendom. The members of the Holy League, for instance, “did not find problematic the coexistence of Catholic martyrdom and Catholic persecution.”34 There was an important reason why this was not perceived as a dilemma, but as conceivable: sacrificing oneself for a higher good allows one to sacrifice others. For a comparison with current terrorism, this means: modern suicide a­ ttackers – who not only theologians dispute as pursuing a just cause – do not regard themselves as terrorists but as martyrs. This is because, in the self-perception of terrorist groups as well as in the propaganda of these groups, all those actors who have sacrificed their lives for the common cause, regardless of the circumstances under which they have died, are subsumed under the term “martyr”.35 Although, in Christian ethics, Christian and Muslim martyrs are seen to have something in common in that a martyr’s death is honoured as a testimony of faith and as Godly devotion and sacrifice of one’s own life, Christian ethics 33 34 35

Buc (n 29), 61. Buc (n 29), 34. Ulrich Schneckener, Transnationaler Terrorismus: Charakter und Hintergründe des "neuen" Terrorismus (Suhrkamp Verlag 2006), 112.

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nevertheless make the distinction between the religious traditions in that, in Islam, active acts of violence by a martyr can be legitimated, while Christianity is much more orientated toward passivity on the part of the martyr.36 In Buc’s work there is not this clear distinction in the discourse about Christian martyrdom. He shows that the Christian concept of martyrdom is not consistently characterised by non-violence on the part of the martyr, i.e. by violence which the martyr has suffered but not perpetrated himself. An ethics-based look at counter-terrorism that also analyses the motivations of modern suicide attackers can benefit from such a historical approach, in that it can open up a discourse about moral values that avoids any premature assignment of roles. To give a further example: In Chapter 3 of his book, Buc argues that, when it comes to interpreting the use of violence, madness, martyrdom and terror are very closely related to one another. He also states that it depends on the system of interpretation whether a specific behaviour is diagnosed as being due to a diabolic mentality or holy eagerness or simply medical/psychological insanity, and in a specific cultural framework whether someone is labelled a terrorist or a saint or just a maniac. In other words: the burnt flesh of the martyr smells like heaven to those who believe that his/her violent death has served a higher purpose. It smells abhorrent to those who do not believe in such ideas. At the beginning of Chapter 3, Buc says that public and scientific debate attributes to terrorists in general, and recently and in particular to the 2001 jihadists, madness and mental imbalance. Whether this characterization is right or wrong – and there are serious grounds to deem it misguided – it is worth reconstructing this propensity’s history. For one is dealing here with a deep-seated cultural image, whose distinctive features are well rooted in the past. As we shall see, the mad terrorist (and its phenomenological twin, the suicidal martyr) appears as a character in the first century c.e. It travels all the way to the Middle East’s al-Qaeda, and slightly before it to the European, and secular, German Baader-Meinhof Gang.37 It is not possible in this essay – and probably not even desirable – to repeat the journey and, together with Buc, travel the long distances he has covered. It is a long and rocky road through the history of the West and its ­relationship 36

37

Johannes J. Frühbauer‚ “Dying to win?” – Selbstmordattentate zwischen politischem Widerstand und religiösem Märtyrertum’ in Christian Spieß and Katja Winkler (ed) Religion – Gewalt – Terrorismus. Religionssoziologische und ethische Analysen (Ferdinand Schöningh 2010), 67, 79–83. Buc (n 29), 112.

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with violence, but one that offers quite sensational views because, along that road, it is possible to see that Augustine, the ancient church father, has a like-­minded colleague in Robespierre, the French revolutionary, and that the ­terrorists of the German raf (Red Army Faction, or “Baader-Meinhof Gang”) are “neighbours” to the anti-Jewish Christian theologians of the Middle Ages. We also see that what we refer to as deranged where terrorists are concerned follows its own logic in that, although it does not excuse their actions, it makes them understandable. Buc was able to travel such crooked ways without collapsing from exhaustion because he had a specific hermeneutical key for interpreting the entire history of Western violence: he advocates a “heuristic desecularization”38 in order to see the “religious tradition’s character traits” and to make the hidden structure, the “forms, meanings, and meaningfulness” of violence ­recognisable again.39 For instance: the terrorism of the German raf may be said to be ­beyond understanding, the aims of those terrorists declared as senseless, and the terrorists considered to be victims of psychological pathologies: But an analysis of the raf’s deeds that seeks understanding – that rises to enter in the perpetrators’ heads by taking seriously their words – leads to alternate conclusions. It has long been a common-place that Western atheist utopias are positioned on a genealogical continuum with Christian ones. If – in a maneuver that may seem artificial but is heuristically fruitful – one reinscribes the raf’s godless ideology within the figures of thought of Christianity, these deeds become “thinkable” again.40 Buc is convinced that this method allows him “to dismiss the presumption of madness and understand the discourse the terrorists tried to live as coherent.”41 He states that it could have an important effect on policy-making and counterterrorism if we were to try to understand the terrorists and not declare them as totally mad and irrational. “Understand”, of course, is meant in the sociological sense of the word that Max Weber and Interpretative Sociology attributed to it. We should, in other words, try “to understand the meaning of action from the actor’s point of view”, because “unlike objects in the natural world human

38 39 40 41

Buc (n 29), 147. Buc (n 29), 288. Buc (n 29), 147. Buc (n 29), 151.

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actors are not simply the product of the pulls and pushes of external forces.”42 Taking into account the meanings terrorists attribute to their actions requires viewing the actor, not from a perspective from which he is seen as an object, but from a subjective perspective from which we can try to explain his actions. At this point Buc, who examined purely the ideological structures and ­circumstances for terrorism, is consistent with Duyvesteyn, although the latter regarded such structures and circumstances as negligible or not very conducive. But Duyvesteyn, too, considered it would be sensible for the purpose of the “historical investigation” of terrorism to suppose that it could be rationally understood. “This means that even though beliefs are seen as important in the use of violence, it is presumed that these beliefs can be rationally comprehended. This rational understanding, even when disagreeing with the f­ undamentals of the belief, should be used as an explanatory factor.”43 Even if doubts may remain that certain patterns of behaviour and arguments that developed in ancient times or in the Middle Ages still influence the behaviour patterns and arguments of people in the Modern Age, or that the way Augustine interacted with the Donatists can be compared to the way raf terrorists interacted with German society; or whether the Crusade sermons of the Middle Ages can really be compared to the speeches of the Bush Administration to justify the war in Iraq: Buc nonetheless shows in astonishing, if not to say striking, detaildness just how similar the patterns of argumentation are and just how similar the support was in response to those patterns. Buc’s analysis offers the advantage that he is able to explain forms of terrorism which may seem alien from the perspective of approaches that embrace a much more limited study period. In contrast to Fine, moreover, Buc is not at a loss to explain the religious potential of supposedly secular violence – he does not need to regard supposedly secular terrorist movements (which in terms of their potential for violence do not differ from religious movements) as exceptions to the rule, but as taking the same line. In that respect, Buc’s approach is consistent with that of Crenshaw: [A]nalysis of what is new about terrorism needs to be based on systematic empirical research that compares a wide range of cases over extended time periods. Without knowing the contours of the “old” terrorism, the shape of the new cannot be identified. Comparisons must take into ac-

42 43

“Verstehen” in Online Dictionary of the Social Sciences [2016-09-27]. Duyvesteyn (n 7), 450.

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count the historical context within which terrorism occurs. Otherwise we cannot understand adaptation and innovation in terrorist behavior.44 Applied to Buc’s approach, this would mean: current forms of religious violence are not that new, nor are the justification strategies for the use of terror. Buc’s approach, however, differs significantly in comparison to terrorism researchers who take a historical approach. Discovering similar structural characteristics does not preclude the need to look for religious elements and patterns of interpretation – quite the contrary, in fact. Explanations for terrorist activities that seem alien and deranged to us can be found throughout the long history of religious thinking, as can answers that may help to understand the arguments of terrorists in the long term and might lead to proper counterarguments and thus serve to shape the ethics of counter-terrorism.

Religion and Counter-Terrorism: A Plea for a Historical and Ethical Understanding

The question of the extent to which religion contributes toward present-day terrorism has been asked in research, both in the debate about new and old forms of terrorism (1.1) and in the discussion over whether it is helpful to consider ideological elements and motives behind terrorism (1.2). While there is largely consensus in historical research that there can be no talk of any genuinely new form of terrorism, there is still a need for clarification regarding the importance of ideologies and motives. Particularly the criticism concerning any excessive differentiation between religious and secular considerations (1.3) is an indicator of how difficult it is for research to assess motives and content. It has been shown in a case study on the relationship between Christian religion and violence what possibilities there are for answering the question from a longue durée historical perspective (2). In what follows, it will now be attempted to filter a few insights from the previous statements with the aim of demonstrating that a historical approach can also be relevant for an ethos of counter-terrorism. Cultural Imprint Buc has, first of all, written a quite polemic paper which seeks to provoke its readers. His interpretation of religious history contains some evidence, however, and may lead to reflection upon the tradition of violence within our 44

Crenshaw (n 1), 135.

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own  – mainly Christian-influenced – culture that, in turn, might lead to a general re-evaluation of religious violence. Because Buc wrote his book about Christianity and not Islam, he is able to make statements on the structure of concepts such as holy war, martyrdom and terror that are currently attributed to Islam and not to Christianity. This intense and searching look at the history of the Western world in particular might lead to a deeper understanding of terrorism in general. If terrorism has anything to do with the supposed “clash of civilisations”, then it is obvious that we must develop a deeper awareness of the importance and relevance of these civilisations, specifically of our cultural imprint and character. Especially at such a strange time as the present, we have the pressing need to come to terms with different cultures, while at the same time it seems we are alienating ourselves more and more from our own culture. We see the need to deal with Islam as something new within our own culture and to integrate it into our society – Euro-Islam being the key word for this need – while, at the same time, what used to be our own religious tradition and culture that defined European identity over centuries is becoming less self-evident. In large parts of East Germany, for instance, Christians ­account for less than 20% of the population. Because of this uncertainty that springs from coming to terms with our own civilisation and with one that is perceived as alien, it would seem useful to point out that a phenomenon such as terrorism is also shaped by, and specific to, a given culture, it being necessary to understand the unsettling influences caused by a phenomenon such as suicide terrorism within a specific sociocultural context. In the eyes of the suicide attackers – as well as of the groups that praise and publicise their deaths as agreeable to God – the attackers are not murderers but devout religious persons. A counter-terrorism strategy formulated in purely normative terms, emphasising for instance that it is wrong to kill innocent people, no matter when, no matter where, is a correct ethical principle, yet forgetful of the fact that the discourse thereby being conducted has already been shaped historically and culturally. For a counter-strategy to be more effective, it must focus on the exceptions to this principle which seem to be tolerated within a certain cultural framework. Buc, in his book, provides interesting examples of ethical positions, such as on war and peace, being shaped by experiences that a culture has undergone in the course of its history. According to him, research on the Crusades revealed “that crusading helped both to militarize the medieval Church and to sustain an ongoing critique of what warfare was for in a world that was supposedly Christian.” That is why the Crusades not only led to a veneration of war but also “played a significant role in sustaining the ethical dimension in European warfare.” Buc’s critical questions regarding the Christian-European

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approach to war and violence must be taken seriously not least due to this “ethical dimension”, since his book is by no means a black book on Christianity: Western Christian dialectic between peace and the sword has not only brought negatives to global politics; the habitual dispositions it has ­generated are Janus-faced. The form that human rights and just war have taken is genealogically unthinkable without Christianity, just as the form that sanctified warfare and terrorism have taken is genealogically unthinkable without Christianity.45 A precise and honest look at the history of Christianity and its ethics – in other words, a look at our own culture – can show up the Janus-faced nature of our positions on war and peace, yet it may also help to distinguish aberrations from workable solutions. Only thus, in my view, can the word “terrorism” be prevented from degenerating into a politically tendentious term serving solely to stigmatise potential adversaries. Counter-Narratives Facing terrorism at an ideological and cultural level – underpinned by e­ xpertise in religious studies – can support a deeper analysis of the phenomenon and might be important for a more reasonable counter-terrorism strategy. Florence Gaub, in her article about isis as a cult, demands that any foresightful security policy should try to “inhibit potential terrorists from joining the group in the first place: as radicalisation and indoctrination are exponential processes, they are easier to address in their early stages.”46 But how should they be addressed? In my view we should not only study the social factors that make it possible for people to radicalise; we should also try to understand the receptors that arise through a specific cultural socialisation to which these people react. To prevent the radicalisation of young people as well as be able to offer already radicalised persons alternatives in the process of de-radicalisation, we need convincing counter-narratives. For this purpose, however, it is absolutely necessary first of all to analyse their narratives and their ideological meaning. To understand and cope with their strategies, we have to study the religious sources they claim for themselves, and we have to deal with those sources – so as to gain a different understanding. Counter-terrorism can benefit from such religious and theological expertise. Terrorist rhetoric argues apocalyptically;

45 46

Buc (n 29), 7. Gaub (n 19), 125.

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to understand this rhetoric and deprive it of its mystique, it can be helpful to counter it with something meaningful. The authors of a recently published research report titled “Salafism in Germany” reach the conclusion that the attraction of Salafism and jihadism stems mainly from the effectiveness of the narrative with which terrorists justify their own thoughts and actions. Jihadist justification narratives legitimise, in ­particular, acts of violence against supposed enemies of Islam, including ­Muslims, who do not share the ideology of their religion. As scientific political advisers, the authors recommend further basic research on the impact of various justification narratives used by Salafist-jihadist movements, and that c­ ounter-narratives should play a greater role in prevention and de-­ radicalisation in future.47 Germany’s Federal Academy for Security Policy has also grappled with the question of what makes jihadism so attractive to young people in Europe. In an article about “terror tourism”, in other words about European jihadists who depart for is war zones, Peter Härle writes that most Muslims disapprove of any jihadist, violence-glorifying interpretation of the Quran. Nonetheless, “scheint die Gruppe der ideologisch verbrämten, gewaltbereiten Sympathisanten größer zu sein, als dies mit gesundem Menschenverstand zunächst anzunehmen ist.” (Own translation: “the group of ideologically cloaked, violent sympathizers seems to be larger than common sense may initially suggest.”)48 The author is able to give reasons for the growth in ideologies, such as a lack of prospects, impoverishment, repression, state failure, corruption, and multi-ethnic tensions. However, it would have to be asked whether these are comprehensively the reasons for the rise of is terrorism, and whether they adequately explain the success of hate preachers and the workings of the social networks that serve the purposes of propaganda and recruitment.49 In order to counter the apparently enormous pulling power of the is in Germany, the author suggests that, basically, the authorities and civil society should increasingly conduct a dialogue with Muslims with the aim of “möglichst gemeinsam darüber aufzuklären, dass sich die ‚Gotteskrieger‛ auf einem Irrweg befinden. Ferner bedarf es der Ursachenforschung nach den Motiven der ‚Reisewilligen‛ sowie einer Kommunikationsstrategie, die insbesondere Kommunikationsmittel und -verhalten labiler Jugendlicher mit berücksichtigt.” (Own translation: “communicating, if 47 48 49

Christoph Günther, Mariella Ourghi, Susanne Schröter, and Nina Wiedl, „Dschihadistische Rechtfertigungsnarrative und mögliche Gegennarrative“ (2016) hsfk-Report Nr. 4. Peter Härle „Eine globale Strategie gegen den ‚Islamischen Staat‘“ (2014) Arbeitspapiere Sicherheitspolitik. Published by the Federal Academy for Security Policy, 7. Härle (n 48), 7.

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possible, jointly, that the ‘holy warriors’ are on the wrong path. Furthermore, it is necessary to examine the motives of those ‘wishing to travel’, and develop a communication strategy which takes special account of the means and ways of communication of unstable young people.”)50 In my view, the analysis and deconstruction of terrorist narratives offers a s­ ignificant ­possibility for exploring such motives and communication strategies. The ­reports by disillusioned returnees from Syria about their experiences which expose the terror methods of the is are a beginning. But still more can be done in this direction. Taking the concept of martyrdom as an example, we can study the narratives of violent groups and develop counter-narratives that do not reject the concept itself, but limit its meaning more strictly, so that it cannot be applied to those perpetrating violence. Such an approach, in my opinion, makes sense in terms of counter-terrorism ethics, since the counter-­narratives are key to any discourse about ethics and the ethical value of counter-­terrorism. It cannot be denied, either, that the best counter-terrorism strategy is one that operates preventively and already counteracts terrorism in its early stages. The importance of counter-narratives for preventive counter-terrorism needs to be emphasised, however, not least because terrorism in the form of suicide attackers escapes prosecution, thus fundamentally challenging the effectiveness of traditional criminal law.51 Cultural Memory Holy war, martyrdom, and terror are ideas we usually associate with Islam, forgetting that they were – and may still be – ideas which were common within the Jewish-Christian culture and had a great power of persuasion, especially in disputes with Islam. A profounder historical education and greater intercultural competence might help to clarify misunderstandings and avoid too simplistic answers concerning the relationship between religion, war and terrorism. Fine’s study, in particular, shows impressively that what is referred to as religious terrorism, or bases its legitimation for violence in religion, must not be reduced to Islam. Fine’s examples from Judaism and Christianity speak for themselves, as does Buc’s very old looking-glass, which tracks the structures of violence across the Christian centuries.

50 51

Härle (n 48), 9. Katharina Klöcker, Zur Moral der Terrorbekämpfung: Eine theologisch-ethische Kritik (­Matthias-Grünewald-Verlag 2009) 37–39.

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The question regarding the attitude of the West to violence has a further d­ imension, however. Supposing that there is such a thing as cultural memory,52 it has to be taken into account that Western culture has been dominated by the enduring fear – or at least rejection – of Islam. For almost a thousand years, from the seventh century onward, it was in constant military conflict with Muslims. Have we worked off this fear and the prejudices that this fear has produced in our collective memory? It seems, in my view, that the slogans which not only right-wing populists in many European countries use to warn of a supposed Islamisation of the Occident are linked to those fears and prejudices.53 If “terrorism” and its exploration are not only etymologically linked with fear and fright, then we need to realise that powerful feelings are involved here – feelings that have not only cultural connotations but also a long-term cultural impact. Nathan Ristuccia wrote in a review about Chapter 3 of Buc’s book that it provides a very good demonstration of how the contemporary concept of the crazed, irrational terrorist mirrors Christian ideas of the blindness of the Jews. Just as the Jew cannot ­understand Christian supersessionism, the terrorist is cut off from reason and fails to see the truth of Enlightenment liberalism. Thus, the rational Westerner had no choice but to compel the terrorist’s conversion through military force.54 It is open to question whether it is possible to draw such clear lines between the past and the present, between old theological concepts and current assessments of the terrorist threat. Yet when it comes to questions of intercultural competence in military contexts, we need to be aware of the influence of our own cultural imprint. An encounter with a different, formerly non-Western culture is based on hidden values that are the product of one’s own cultural experiences. Where a future ethical education is concerned, it seems important in my view to gain an awareness of these values. David Nirenberg, in his great work titled “Anti-Judaism. The Western Tradition”, argues that “anti-­Judaism should not be understood as some archaic or irrational closet in the vast edific52 53

54

Astrid Erll and Ansgar Nünning (ed) Cultural Memory Studies. An International and Interdisciplinary Handbook (Walter de Gruyter 2008). Yasemin Shooman, „Das Zusammenspiel von Kultur, Religion, Ethnizität und Geschlecht im antimuslimischen Rassismus‟ (2012), in Bundeszentrale für Politische Bildung (ed) Aus Politik und Zeitgeschichte (APuZ 16-17/2012). Ristuccia (n 31), 318.

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es of Western thought. It was rather one of the basic tools with which that edifice was constructed.”55 It means that the centuries-old anti-Jewish discourse, to which Ristuccia referred in his interpretation of Buc’s approach, stands for stereotypes of the enemy that are deeply ingrained in the Western way of thinking, such that the history of anti-Judaism provides information on how the West thinks not only about Jews, but also about the rest of humankind, and provides information on attitudes towards deviance and otherness. Becoming aware of these dispositions may help to assess current-day friend/foe thinking more carefully and thus more appropriately. In order for counter-terrorism to respond commensurately to what it seeks to fight, it needs to analyse the phenomenon of terrorism critically. This also includes historical contextualisation, which can help to avert triggering what is actually to be fought: fear. As Katharina Klöcker convincingly described in her study, the dialectic of terrorism and counter-terrorism is that both ­terrorism and counter-terrorism can spread fear in society. A society’s need for security becomes problematic the moment that need takes on features which are just as irrational as what triggered it, namely fear. Counter-terrorism must not become a rule of fear that merely appears in a different guise, i.e. that of security. Counter-terrorism would then benefit the terrorists and help to achieve their goals. Moreover, excessive use of force in the fight against terrorism might convince the apolitical and moderate members of society of the legitimacy of violence.56 Interreligious Competence The German Ministry Of Defence has decided that intercultural competence must be strengthened and improved within its armed forces. In thinking that I am right in claiming we should pay greater attention to the relationship ­between religion and terrorism on an ideological level – a level that explores attitudes and motivations – I would ask whether the concept of “interreligious” competence should be seen as a qualification in itself. I see it as part of intercultural competence, yet also as independent. Is it possible to see it as a key qualification in the education of military personnel, especially with respect to specific new missions?57 It is my conviction that interreligious competence 55 56 57

David Nirenberg, Anti-Judaism. The Western Tradition (w.w. Norton 2013), 6. Klöcker (n 51), 48–51; Cf.: Tahir Abbas, “The symbiotic relationship between Islamophobia and radicalization” (2012) 5 Critical Studies on Terrorism 345. Cf.: Volker Stümke, “Religionen als politische Gefahr – ein Überblick” in Nina Leonhard and Jürgen Franke (ed) Militär und Gewalt: Sozialwissenschaftliche und ethische Perspektiven (Duncker & Humblot 2015) 35.

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that includes fundamental knowledge of religious history can lead to a better understanding and more appropriate response to religious terrorism and also provide better counter-arguments. Particularly in regard to the repeatedly heard calls for dialogue with Muslims, the question arises whether increasing cultural and religious diversity calls for interreligious competence in addition to intercultural competence. Religion, certainly, is always an expression of culture, but does that also apply in reverse? Can both terms therefore be subsumed under one? Mirjam Schambeck views religion “als eigenständige, von der Kultur untrennbare, aber nicht in ihr aufgehende, sondern komplementäre Wirklichkeit aufgefasst, vergleichbar den beiden Seiten einer ­Medaille.” (Own translation: “as an individual reality which is inseparable from ­culture, without being subsumed by it completely, but existing complementarily, comparable to the two sides of a medal.”)58 She hence argues not to restrict thinking in regard to intercultural competence, but to extend it to include interreligious competence. According to her definition, interreligious competence denotes “Fähigkeiten und Fertigkeiten, die Menschen in die Lage ­versetzen, angesichts und in einer bestimmten religiösen Tradition eine verantwortete und begründete ­Position zu Religion auszubilden, die pluralitätsbewusst anerkennt, dass Religion nur im Plural vorkommt und diesen Religionsplural produktiv zueinander zu vermitteln versteht.” (Own translation: “capabilities and skills enabling people confronted with, or embedded in, a certain religious tradition, to develop a responsible and well-founded position with regard to religion which recognises, in a manner conscious of plurality, that religion only exists in the plural and is capable of conveying that religious plurality together, productively.”)59 It should be said in this connection that interreligious competence does not mean necessarily having any religious commitments oneself to first be able to judge religions competently, but rather that interreligious competence can be looked on as an instrument which can help to achieve a deeper understanding of interrelated religions. This deeper understanding could then help to make the meaning of religiously based value orientation not only understandable, but also adequately criticisable. Even if one were to admit that value orientations are not consistent and frequently overlap, it would nevertheless be wrong to conclude that such orientations did not exist at all or could be ignored. Those who use violence, as well as those support it, 58 59

Mirjam Schambeck, Interreligiöse Kompetenz: Basiswissen für Studium, Ausbildung und Beruf (Vandenhoeck & Ruprecht 2013), 29. Schambeck (n 58), 174. Cf.: Joachim Willems, Interreligiöse Kompetenz: Theoretische ­Grundlagen – Konzeptualisierungen – Unterrichtsmethoden (vs Verlag für Sozialwissenschaften 2011).

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obviously perceive their acts as meaningful and legitimate within a religious frame of reference. Might it not be that what is needed is interreligious competence capable of conducting a discourse about values conveyed by religions? To engender a responsible attitude towards religious fundamentalism as it is reflected not only in current terrorism we require an attitude which is capable of differentiating religion from this fundamentalism by successfully pointing out and excluding religion’s potentials for violence. There are many reasons to which the emergence or resurgence of religious terrorism can be attributed: social, ethnical, economic and political problems provide a ready breeding ground in this regard. Nonetheless, the religious dimension in the discourse about terrorism should not be ignored. That is because those who study religion and religious history will encounter not only the dark sides of human culture but also the possibilities for overcoming violence, and the sources that can be used for the benefit of current peace ethics. It may thus also be possible to develop a more appropriate information campaign as part of counter-terrorism efforts that is properly suited to winning the hearts, minds and souls of the international Muslim community. In other words: if religion has anything to do with present-day terrorism – even if it were only a matter of this terrorism being improperly described as religious – then religion must also be understood as being a part of the solution. Religious actors must then be included in the complex process of conflict analysis and resolution. “Gelassenheit” Terrorism is not some belligerent power. The strong threat that we perceive may have to do with our being subjected to what is, for us, a seemingly new way of thinking in terms of friend or foe. Particularly the intuitive knowledge that isis, even after the dismantling of its territory, will continue to murder and to threaten Europe’s security, is unsettling. However, that especially may be a starting point for a meaningful historical and ethical engagement with terrorism: looking at the history of terrorism and analysing terrorist movements from a longue durée perspective can teach us to have the necessary “distance” that is unfamiliar in any analysis of the phenomenon confined solely to current threats. The German term for the attitude ascribed to such a research ethos is “Gelassenheit”. Translating the term as “equanimity” is insufficient, however, because “Gelassenheit” is not to be understood as unworldly quietism that fails to take the concerns of people seriously, but rather as critical consideration of those concerns. It accommodates ethics that do not obey the fears that threats perceived as new and alien can cause. On this point, in particular, Buc’s book, with its many historical examples that appear to be of quite minor importance and significance for today’s discourse on terrorism, offers a new perspective:

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religiously motivated and legitimated violence can look back on a long history as well as on many perpetrators and victims. A research approach which takes this long history into account will show that what is perceived in the public discourse about current-day terrorism to be new and unique is neither new nor unique. One last thought in this connection: We encounter an instance of “Gelassenheit” in the Book of Ecclesiastes. In response to the question: “Is there ­anything whereof it may be said, See, this is new?” the author gives the clear reply: “There is no new thing under the sun.” In contrast to the modern understanding, which reads a negative, pessimistic world view into the statements of Ecclesiastes 1,4-11, the author here instead speaks of a cosmic circle that produces nothing new – the times are therefore not getting worse; they remain the same. And that has a positive aspect: precisely because they remain the same, it can be a­ ssumed that there is an order to the universe. Neither violence nor a renunciation of violence is completely new to humankind – and in view of the hysteria that can accompany preoccupation with modern terror, this is actually a quite comforting statement.

Chapter 10

Methods for Preventing Terrorist Attacks under Question Olivier Risnes Peace should be the object of your desire. War should be waged only as a necessity and waged only that through it God may deliver men and preserve them in peace. For peace is not to be sought in order to kindle war, but war is to be waged in order to obtain peace. Therefore even in the course of war you should cherish the spirit of a peacemaker. augustine, Letter to Boniface, Epist. 189, 6 and 209, 2.

∵ Any discussion about terrorism should probably start by defining its object and by asking the question: “What is terrorism?” But, unfortunately, no common definition is to be found and none wins common agreement. Answers go from: “Terrorism is a strategy by which people, driven by their frustrations and hatred, make all possible efforts to create a climate of fear by threatening and killing innocent civilians, and by trying to do as much harm as they can”, to “Terrorism is sometimes the only way people find to express their exasperation against oppressive institutions or that they have at hand in order to gain freedom”.1 Terrorist acts, reported in history and around the world, have been so diverse that it may be difficult to obtain a common definition. Moreover, depending on where one stands, on a religious, philosophical or political level, perceptions may change and one person will call terrorism what another will not. Still, since violence does not always remain a mere threat and is actually directed against civilians, governments are quite rightly concerned. There is

* Ideas expressed in this presentation are my own personal opinions and do not reflect positions of the French Armed Forces or of the French Protestant Military Chaplaincy. 1 I am not quoting any author in particular.

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no doubt that deliberation, decision and action should be taken on a political level. Governments have the responsibility of dealing with this phenomenon. Counter-terrorism, as well as the decision to go to war, should be handled on a political level, even though religious and philosophical thinkers, as well as religious and philosophical groups, may have thoughtful reflections and valuable advice to offer. As Henri Hude has noted: “military ethics always presupposes an ethics of politics”.2 This may also be true of counter-terrorism ethics.

Ultimate Technologies for Preventing Terrorist Attacks

Since 9/11, intelligence activity has been focusing on ways to prevent terrorist attacks. Many strategies have been considered and some have been legalised and developed. These include the use of detection technologies such as camera or drone surveillance, phone and internet monitoring, data mining and so on. These strategies have been aimed, in some cases, at activist groups hosted in far away countries who were planning attacks against foreign interests when their governments were not able to control them. It is not rare for individuals or groups to have negative feelings towards distant nations that they do not know well. These nations are perceived to be a threat against their lifestyles, their faith and their worldview. Intelligence work has also been carried out, in other cases, by nations towards their own citizens whose attitudes were found to be ambiguous and who, it was feared, could act violently against dearly held values and against the security of peaceful citizens. Technologies are noticeably developing in two areas: surveillance technologies and robotics. One may wonder what could prevent them from being combined in order to be used by military or police forces from one county or another. On the one hand, information concerning people who have not necessarily ever logged onto the net, or even onto a computer, is available on the internet. The Handbook of Surveillance Technologies points out the fact that it is possible to aggregate public information about anyone in order to know not only the name and address of a person, but also his age, occupations, former employers, financial status, along with the names of his relatives and neighbours. Therefore those seeking to exploit this data may be tempted to do so for any kind of purpose. Moreover, “Social networking sites have been caught sharing personal information or opening it up to third party commercial ­interests 2 Translated from Henri Hude, “Preface”, in Benoît Royal, L’éthique du soldat français, (Economica 2008), page eleven : « l’éthique militaire présuppose toujours une éthique du politique ».

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without notifying their users”.3 Furthermore, nowadays, hospitals may take routine dna samples and authorities may require mandatory submission of a dna sample: your dna can reveal your gender, race, medical tendencies and physical characteristics. Being scrutinised in this way by surveillance devices may give you the feeling that some people could have the intention of controlling your mind and your life. Big brother is not very far off. On the other hand, most armies in the world are now interested in unmanned aerial vehicles, also called drones. Drones were first used for surveillance but, for quite some time now, some have also been developed to open fire. According to Grégoire Chamayou: In many ways, drones long to create, through technology, a small equivalent of this fiction of the eye of God. A soldier wrote: “by using the ­eye-that-sees-everything, you may find out what is important in a ­social network: where they live, who supports them, who their friends are. Then, all you have to do is to wait until they go onto an isolated road…”.4 These devices have revolutionised our capacity to hold a constant gaze on the enemy. Permanent surveillance is now possible, since a drone’s view may remain constant: in relaying each other, they are capable of staying in the air 24/7. This mechanical eye has no eyelid. A general view of the situation is also made possible now since drones offer the capacity to see in many different directions at the same time: they can be equipped with multiple cameras working at the same time, to give an overall and strategic view of the situation.

Ethics of Autonomous Robots

As engineers are thinking of developing autonomous robots on war fields, a new question arises: to what extent can man delegate his power of decision to robots, and in particular the decision to open fire? On one side of the argument, those like Ronald Arkin believe that robot warriors will potentially become able to act more ethically on the war field than human soldiers would do, since they would be programmed to observe laws, and they would not feel the pressure or have feelings of hatred such as soldiers under fire might have.5 3 J.K. Petersen, Handbook of Surveillance Technologies, (Third Edition, crc Press 2012), page eight. 4 Translated from Grégoire Chamayou, Théorie du drone, (La fabrique éditions 2013), p. 59. 5 Grégoire Chamayou, Théorie du drone, (La fabrique éditions 2013), p. 288.

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These robots would evaluate, through the laws of war and movements detected by sensors, if a person being scrutinised is doing something wrong. In a very enlightening paper he wrote about autonomous robots, D ­ ominique Lambert, a Belgian science philosopher, acknowledges the fact that in some situations: This delegation of power and action, which implies a total or partial a­ utonomisation of these devices or complex formal systems, appears as a corollary to human limits in emergency situations, where very fast ­reactions are required when the total amount of information to be ­processed goes far beyond the usual capacities of a human brain.6 One may find the same type of situation in emergency medicine or financial management for instance, when speed and reactivity in complex situations, taking into account massive quantities of data, are needed. But, asks Dominique Lambert, can we really expect computers, even the more powerful among them, to imitate the human minds completely? In order to produce a robot functioning with ethical software, it is often thought that all you need to do is to reduce ethics to law, and then to adopt a purely formal procedure for applying law, under the form of an algorithm. But this would mean ethics could be encapsulated in law procedures, which is more than doubtful. Ethical decisions are not completely translatable into algorithmic terms. A space for human decision makers should be preserved. This is where the military officer stands, whose role it should be to make the final decision about whether or not to use guns, or – at least – of the type of automaticity to be used in a given situation. No option should ever be left for a legal blind spot: whose responsibility would be engaged if something was to go wrong? Would it be the pilot’s? The technician’s? The constructor’s? The owner’s?

Ethics about the Way New Technologies are Used

Of themselves, and like all others that preceded them, these technologies are not necessarily bad, but since they implement new ways of going to combat, they also raise new ethical and legal issues. One of the questions one may ask is: are we really to hope for robots that would be able to identify independently

6 Translated from Dominique Lambert, “Robots autonome” in Ronan Doaré et Henri Hude (éditeurs), Les robots au cœur du champ de bataille, (Economica 2011), p. 93.

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terrorists in any situation? Could we come to make it one hundred percent sure that such a technology would be perfectly reliable? Another question could be: do we intend to develop programs that would enable robots to go in the direction of preventive strikes? Should we not only try to guess who is likely to make terrorist attacks, not only where and when and how they are likely to hit, but should we also program robots to prevent people from harming others, even at the cost of killing them, before they have done anything wrong? Should we wait until potential terrorists have e­ ffectively struck before we strike them back, if, for instance, armed forces or security ­forces do not have time to intervene? These questions may seem totally irrelevant, but will they remain so very long? Reality is not very far from fiction anymore, as has been dramatised in films such as Minority Report,7 where one sees special police intervening beforehand, at the right time and at the right place, in the right way. But there may be other ways of handling terrorism than so expeditiously. In a short essay, Percy Kemp, a British geostrategic consultant and novelist, suggested that terrorism is a three partner deadly game, with terrorists who terrorise, civilians who are terrorised, and a state authority who ponders violence according to its political objectives.8 On his own, a terrorist cannot generate terror understood as a political means. A deadly attack making many victims may very well pass unnoticed, while in other circumstances a relatively minor attack may generate overwhelming terror and have a very efficient weight. Terrorism is not only a matter of intention, of means, of aim or of casualties. It is first and foremost a matter of the inter-relationship between a violent act and the effects produced and induced in those who govern, as well as in those who are governed. Established powers are the main target and the civilian society the secondary target. The most powerful political effect appears where there are strong links between the government and the people. It has less effect 7 The scene takes place in the year 2054 a.d. in Washington d.c., when violent crime has been virtually eliminated by an elite law enforcing squad called “Pre-crime”. Three gifted humans, who are able to pick up thoughts of premeditated murders, predict crimes beforehand so the Police only needs to swoop down and arrest the “would-be” perpetrators before the killings take place. Potential killers are placed in suspended animation as punishment for the murders they “would have” committed. One of the questions one may ask after viewing the movie points to a paradox about predicting the future : if you claim to know what is going to happen, can you change the outcome? If this is the case, what does this say about the ability to predict the future in the first place? Moreover, the idea of a “Pre-crime” unit satirizes the fact that law enforcement can over-reach its mandate. 8 Percy Kemp, “Terroristes, ou anges vengeurs ?” ESPRIT, Mai 2004, p. 17.

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where there is little or no sympathy between the two. For instance, terrorism would have greater effect in countries where the government has been elected than where it has not. So in order to weaken the political weight of terrorism, the technological answer should not be the only one. And, while firmly condemning any violence and making all possible efforts to prevent it, we should try to hear what message is being conveyed in order to assess it. Even though any violence against civilians is totally unacceptable, political authorities may try to understand where it is coming from and what may be learned from it. This would not be in order to give weight to this particular and dreadful kind of activism, nor necessarily to grant what is being claimed this way, but to assess the kind of longing it reveals, and to find out ways of helping to find acceptable solutions for everyone, so that terrorism might lose some of its pertinence and support among its sympathisers.

Christian Schools of Thought about War: Holy War, Pacifism, Just War

At this point, I would like to make an observation about three Christian schools of thought about war in the western word: holy war, pacifism, and just war. As far as holy war is concerned, we may find an example with the Crusades, but this model was definitively abandoned after World War One, when war seen as a military battle fought upon God’s order’s for God’s purpose and with God’s assistance lost all credit: all sides claimed to be fighting for Christ and according to his will which, in the end, made it a bit difficult to accept. Holy war tenants often leaned upon the literal application of whole portions of the Old Testament and did not care so much about careful contextualisation and exegesis. Today, most mainstream theologians and churches reject the idea that a particular people could, on its own, and in opposition to all others, be considered as the only bearer of truth and justice and therefore have all the rights to subjugate others. On the other side, Christian pacifism considers killing a human being as something wrong, in any given situation, and the command of Christ to the apostles never to harm an enemy should also apply to international conflicts. Therefore, Christians should never ever advocate war. The discussion goes on as to whether pacifism really was the norm of the early church until the fourth century, when Constantine came into power, and if so, to what point. In any case, pacifism has maintained a strong influence in churches until now, although it may take various forms.

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Just war theory has pre-Christian origins in classical philosophy. In his book Republic, Plato puts in Socrates’ mouth the advice that the Greeks should fight “like people who know one day that they will be reconciled”. So “they won’t ravage Greece or burn her houses, nor will they agree that in any of her cities all the inhabitants – men, women, children – are their enemies”.9 Although this concerned only war waged by Greeks against fellow Greeks, and not barbarians, this idea would become a reference later for just war thought. Cicero, in his work On Duties, considered citizens owed foreigners the same respect they owed their own compatriots. So this would rule out aggressive wars. Such aggression would “tear apart the common fellowship of the human race”.10 But elsewhere he suggests that it is possible to fight a just war for the empire. In its Christian version, just war acknowledges the presence of evil in the world and considers that war may be, in some cases, a regrettable necessity to limit it. Advocated by Augustine, it has been adopted by many Christian theologians since then. As Plato or Cicero, Augustine claims that the end of war is peace: Peace should be the object of your desire. War should be waged only as a necessity and waged only that through it God may deliver men and preserve them in peace. For peace is not to be sought in order to kindle war, but war is to be waged in order to obtain peace. Therefore even in the course of war you should cherish the spirit of a peacemaker.11 Each of these approaches has direct implications on the way war is waged, and we do not have enough time for a thorough investigation. To a certain point, though, it seems possible to compare holy war and realism as a philosophical standpoint in war. As Nick Solly Megoran states in his book called War on Terror: Realism sees war as a form of politics, a way of extending the power of one state at the expense of another. Because it is one of the basic ways that states relate to one another in a world with no higher authority, realism considers it futile to try to regulate it. Realism considers it not only pointless, but positively dangerous to subject war to moral reflexion.12 9 10 11 12

Steven P. Lee, Ethics and War, An Introduction, (Cambridge 2012), p. 39. Steven P. Lee, (N 10), p. 41. Augustine, “Letter to Boniface” (Epist. 189, 6 and 209, 2) in Peter Dixon, Peacemakers, Building stability in a complex world, (ivp 2009), p. 43. Nick Solly Megoran, The War on Terror, (ivp 2007), p. 132 (My italics).

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So we could say that if, in holy war, all moral justifications have already been dealt with even before any fight has started, according to realism, opponents will be considered as less moral because the justification of their fight is not considered valid. Moreover, I would say that to translate rules of engagement in terms of ­algorithms for autonomous devices like drones or other kinds of robots should probably be much easier to do from a holy war perspective than in a just war perspective.

Thinking of What Comes after the War

From the just war perspective, three aspects stand out: jus ad bellum (rules about going to war), jus in bello (rules about behaviour during war), jus post bellum (rules about the situation after war). In the so called “long war” against international terrorism, the third element of just war, which is the more modern, has probably more to teach us than we may be willing to admit. In launching the War on Terror, countries claim the right to intervene anywhere in the world and use any means they need to counter opponents. Measures taken have sometimes more in common with policing. As Peter Dixon13 has noticed: The comprehensive ideas developed immediately after 9/11 for fighting international terrorism included police action, military activity, intelligence-gathering, border controls and financing measures, all in concert with existing allies around the world. We might argue that the softer aspects of reducing terrorist effectiveness, through better understanding and elimination of reasons for opposition to the West, were missing.14 So we may advocate that the idea that there is a legitimate monopoly of violence by the state, domestically to maintain order and externally for selfdefence, comes along with some responsibility. This is where we may find the pertinence of the twin notions expressed in just war tradition that, first of all, authorities have to ensure that the total good outweighs the total evil, and that, secondly, authorities have to undertake 13

14

Peter Dixon is a former pilot of the raf, who now leads a charity called Concordis International, devoted to conflict resolution. He has managed a wide range of strategic peacebuilding interventions, predominantly in Sudan. Peter Dixon, Peacemakers, Building stability in a complex world, (ivp 2009), p. 53.

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action with good intentions. And, says Dixon: “Modern writers have argued that Augustine’s jus ad bellum carries with it the requirement for just peace as an outcome of war: in other words, jus post bellum”.15 Written in 2009, Dixon’s book sees, in the activities led by the allies to reconstruct and stabilize Afghanistan, an effort towards this end. So the decision of going to war and the decision of how war has to be fought should be seen through the lens of what comes after fighting, what is often called “the desired end state”. Here stands the idea of jus post bellum, which is more than a general rhetoric about democracy. It is all about how to obtain a better peace after the war.

“War on terror” or “Counter-terrorism”?

How can a war on terror be won? It is difficult to give an answer to this question as long as a definition of terrorism has not been given: what exactly is the evil we are trying to defeat? But it is also difficult to give an answer as long as a definition of victory has not been found. What would victory be in this particular war? When can we make sure we are winning, and when can we foresee a loss? Even in sport such a prediction is difficult to make. What are we trying to achieve? What is it that could make us say, “we have won this war”? I have often heard war specialists assert that we should not try to fight yesterday’s wars. Our enemies are not the same and neither are their objectives and means. Weapons and tactics have changed. We must acknowledge that there are so many changes going on in our world, so many different ways people adapt to transformations they encounter, that to think of being able to have a perfect hold on the future seems like a fantasy. Is victory the possibility of remaining the same as we used to be? Is it the possibility of remaining recluded in a particular period of history? Was victory in 1918 preserving the same world as in 1914? It may be that sometimes changes require adjustments and wars are the inevitable consequence of social groups unable to adapt or adjust to each other. Wars themselves often produce changes that were totally unexpected. So in the same way that we should not try to fight yesterday’s wars, we maybe should not try to maintain forever the same peace that used to prevail in the past times. And since everything keeps on moving all the time, even though speaking of “counter-terrorism” may seem less ambitious than to speak of “war against terror”, it may nevertheless be more realistic as well: we are all standing somewhere on the scale of history, and we all know humanity is not likely to change 15

Peter Dixon, (N 15), p. 54.

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much. There are still frustrations, exasperations, disappointments, distress, threats, violence, wars, deceptions – and so on – to come. But still, the question remains: how best to contain them? What do we want to achieve? What kind of peace are we longing for?

Conclusion

Technology isn’t everything, and even in the heart of conflicts, acknowledging, in spite of everything, the humanity of those who hate us may be the first step towards mutual understanding and respect. Then trying to build relationships and trying to find a common ground for relating may also improve mutual appreciation. Behaving like a sensible human being, and making all efforts in order to remain human, could be considered as a fight worth fighting. But it could be that this battle should not be considered as a battle to be fought by an army on its own. This battle may not necessarily be a military one. It may be the challenge of a whole society. Sometimes soldiers are here to allow others to do their job. I remember when, as a chaplain in the Central African ­Republic with the “Sangaris” forces, even though they did not like to talk about it very much, members of ngos were able to go back to their work because ­military forces had brought along more security, and had allowed some semblance of state to appear again. Still, there was some violence going on here and there, but on a much lower scale, and it was tending to disappear. So military forces, and even police forces, should probably not think that they have to bring peace along on their own. They probably do not have all the means that are required in this respect. However, at the same time society should not believe military or police forces are the only ones concerned with peace, whether abroad or at home. People should acknowledge the work done by their soldiers and give them the support they need, but they should also take their share of responsibility.

Chapter 11

The Hate Trail. Counter-Terrorism of the 21st Century and Its Challenges Desiree Verweij The 9/11 attacks on the Twin Towers of the World Trade Centre in New York and the Pentagon in Washington have marked the beginning of a series of attacks that appear to have left a trail that seems relevant to follow when reflecting on the ethics of counter-terrorism. One of the signs leading to this trail is the ­question, “why do they hate us so much?” According to Duncan Kennedy (2011),1 Carter Professor of General Jurisprudence at the Harvard Law School, this was a question posed by many Americans immediately after 9/11. The question was often repeated, amongst others by Bill Maher (2015),2 host of a late night talk show, in his opening question of a panel discussion on the Paris attacks of 2015 (respectively on the office of the satirical weekly newspaper Charlie Hebdo in January and on the Bataclan Theatre in November). In June 2016 the same question was addressed by Fareed Zakaria (2016)3 on cnn. Yet, looking more closely at this question makes one wonder: who are “they”? Who are “we” and once that is ascertained; do “they” actually hate “us”? In order to answer this seemingly simple, yet multilayered question, the first part of this paper focuses on the concept “hate” and tries to find out whether the “hate trail” is indeed a trail worthwhile following. “Hate” not only manifests itself on a personal level; some influential philosophers have discussed the two basic dualist powers that rule both on a micro and macro level and can easily be connected to “hate”. As destructive energy, “hate” can be located in Plato’s concept of “thumos”, as well as in Freud’s concept of “Thanatos” and Nietzsche’s concept of the “Dionysian”, all on both an individual and a political level. In his article “Freud on Violence”, Alford (1998)4 maintains that “hate”, as a political power, has received less attention than “love” and “fear”. Notably, as Alford points out, “hate” not only structures the ego, but important aspects of social and political life are based 1 Kennedy, D. (2011) http://news.harvard.edu/gazette/story/2011/09/why-do-they-hate-us/. 2 Maher, B. (2015) http://www.washingtontimes.com/news/2015/nov/14/bill-maher-on-paris -attacks-why-do-they-hate-us/. 3 Zakaria, F. (2016): http://www.cnn.com/2016/04/08/opinions/why-they-hate-us-zakaria/. 4 Alford, C.F. (1998) “Freud on Violence”, in Elliot, A. (1998) Freud 2000, Cambridge, Polity Press.

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on it. This is also illustrated by Venmans (2011)5 with regard to Plato’s thumos. It seems worthwhile to take a closer look at this destructive energy assumed to be present in all human beings, yet not in the same way and to the same extent. What are the conditions of possibility for “hate” to be incited in such a way that it can explode in a social and political context attempting to annihilate this same context and what are the consequences thereof with regard to counterterrorism? In order to answer these last questions, the second part of this paper will focus on three recent analyses of terrorism by respectively Dutch terrorist expert Beatrice de Graaf (2010),6 German author and philosopher Hans Magnus Enzensberger (2006)7 and Belgian Islamologist Montasser AlDe’emeh (2015).8 The reason to take a closer look at the texts of these three authors is threefold. They are all academics, who have frequently been praised for their expertise and their excellent analyses of the recent terrorist attacks in Europe and have for that reason received a lot of media attention in The Netherlands, Germany and Belgium. The third reason has to do with a suggestion made by Dutch terrorist expert Beatrice de Graaf9 who maintained, in a recent interview, that it is not possible to predict whether any given individual will become a terrorist. “Nobody has ever succeeded in making a terrorist profile. They are not always unhappy; they are not always poor; they do not all come from the same region. They do, however, often have a criminal background and brothers or sisters who are terrorists. In order to really understand a terrorist one could better turn to a novelist instead of a scientist” (De Graaf 2016). I would like to partly follow de Graaf’s suggestion and take a closer look at AlDe’emeh’s book De Jihadkaravaan; Reis naar de Wortels van het Kwaad (The Jihad Train. Journey to the roots of Evil) (2015). The book is both a social political analysis of the conflicts in the Middle East and a biography. Next to that it includes AlDe’emeh’s interviews with young jihadists that were conducted during his trip to Syria and Jordan. I will particularly focus on the AlDe’emeh’s narrative regarding his personal experiences as a young Palestinian boy, growing up in Belgium and feeling both pushed and pulled to become a freedom fighter in 5 Venmans, P. (2011) Het Derde Deel van de Ziel. Over Thymos, Atlas, Amsterdam/Antwerpen. 6 Graaf, de, B. (2010) Theater van de Angst. De Strijd tegen terrorisme in Nederland, Duitsland, Italie en Amerika, Boom, Amsterdam (Theatre of Fear. The Fight against Terrorism in The Netherlands, Germany, Italy and America). 7 Enzensberger H.M. (2006) De Radicale Verliezer. Over de psychologie van de zelfmoordterrorist, Cossee, Amsterdam. Translation from “Schreckens Männer. Versuch über den radikalen Verlierer” (2006) Suhrkamp Verlag Frankfurt am Main. 8 AlDe’emeh, M. (2015) De Jihadkaravaan. Reis naar de wortels van de haat, Lanoo. 9 Graaf, de B. (2016) https://decorrespondent.nl/3668/Elf-lessen-van-Beatrice-de-Graaf-de-ho ogleraar-die-Nederland-de-weg-wijst-na-Parijs-/805691700968-c15e4baa.

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his own eyes and a terrorist in the eyes of others. On the basis of the two parts of this paper, the final part will attempt to answer the seemingly simple, yet multilayered question posed at the beginning of this introduction: “Do ‘they’ actually hate ‘us’?”

Hate as Destructive Energy

As indicated above, several influential philosophers have discussed the two basic dualist powers that rule both on a micro and macro level and can easily be connected to “hate”. Pre-Socratic philosopher Empedocles10 explicitly used the words Love and Hate with reference to these powers; Plato used the term “Eros” (Love) and in order to explain the power of Eros and its negation in the human soul, he used the concepts logos, epithymia and thumos, of which thumos turns into destructive energy when it is not balanced by Logos (Plato 1999).11 Freud (1991a)12 and Nietzsche (1988)13 respectively referred to these two contraire, yet mutually dependant powers as “Eros” and “Thanatos” and the “Apollonian” and the “Dionysian”. Hate, as destructive energy, can thus be located in Plato’s thumos, as well as in Freud’s Thanatos and Nietzsche’s Dionysian, all on both an individual and a political level. What the concepts thumos, the Dionysian, and Thanatos have in common is a penchant for violence and destruction when this inner drive or energy is not counterbalanced. In that sense, Plato as well as Nietzsche and Freud underline the importance of the inherent coherence between the opposing forces that form the basis of human development both individually and collectively. Thus the unmitigated power of thumos, the Dionysian and Thanatos implies the absence of respectively Logos, the Apollonian and Eros, and thus of a positive constructive and binding power, or energy, that can forestall physical, mental and social annihilation. In fact, if the destructive impulses are not placated, they will, as a result, lead to 10 11

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Empedocles (2009), Empedocles’ Cosmic Cycle. A reconstruction from the Fragments and Secondary Sources, by D. O’Brien, Cambridge University Press. Plato (1999) Plato. Verzameld Werk New, completely revised edition of the translation by De Win, edited by Ector, J., Pelckmans/Kapellen, Agora/Baarn, Part 3 “De Staat” and Part 4 “Phaedrus”. Freud, S. (1991a) “Das Ich und das Es, Die Beiden Triebarten”, Gesammelte Werke, Dreizehnter Band, Werke aus dem Jahren 1920–1924 from Warum Krieg, Gesammelte W ­ erke, Sechzehnter Band, Werke aus dem Jahren 1932–1939, S. Fischer Verlag. Nietzsche, F. (1988), “Friedrich Nietzsche, Die Geburt der Tragödie. Kritische Studienausgabe” published by G. Colli and M. Montinari, De Gruyter, Berlin/New York.

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violence and destruction. Psychoanalyst Alford14 maintains that as an expression of Thanatos, violence is best described as the conjunction of aggression and hatred.15 Notably this destructive force is as much a human phenomenon as is its counterpart. Only in their connection do these powers make civilisation possible and lead to what Alford calls, with reference to both Hobbes and Freud “the world of peaceful wolves”.16 So the “lone wolves” that are ­responsible for the violent attacks that will be discussed in Section 3 were once “peaceful wolves”, who were willing and able to deal with their latent aggressive impulses like everybody else living with the “discontents of civilisation”.17 The question is of course, what makes the violence, caused by hatred, possible. In order to answer this question, Alford (1998) and Venmans’s (2011) texts on respectively Thanatos and thumos will be discussed in more detail, which will provide a better understanding of the phenomenon of hate on an individual and ­social-political level. This discussion will reinforce the relevance of the earlier ­mentioned classical philosophers with regard to the problems of our times; something we sometimes tend to forget.

Destructive Hate on an Individual and Social-Political Level

From a psychoanalytical perspective, hate is seen as affective violence that seeks to destroy its object forever. This not only implies that hate seeks the obliteration of its object, as Alford points out, but it also implies that hate wants to forever repeat the act of destruction,18 ad infinitum. Hate is caught up in an emotional attachment anchored in the destructive side of Thanatos, as discussed in Section 2. The object of Thanatos is the lust for fusion19 in the same way the Dionysian seeks to transcend its Apollonian ego in ecstatic oblivion (Verweij 2011)20 (Ecstasy is derived from ex-stasis: to stand outside oneself). Alford’s description of Thanatos comes close to the Dionysian when he 14 15 16 17 18 19 20

Alford C.F. (1998) “Freud on Violence” (N 4). Alford, C.F. (1998) (N 4) 61. Alford, C.F. (1998) (N 4) 65. Freud, S. (1991b) “Das Unbehagen in der Kultur” (1930), Gesammelte Werke, Vierzehnter Band, Werke aus den Jahren 1925–1931, S. Fischer Verlag (Civilisation and its Discontents). Alford, C.F. (1998) (N 4) 68. Alford C.F. (1998) (N 4) 67. Verweij, D. en Jespers F. (2011), Passie en Persoonlijkheid. De thematiek van het verlangen belicht vanuit de Filosofie en de Psychopathologie, Van Gorcum, Assen (Passion and Personality. The theme of desire discussed from the perspective of philosophy and psychopathology).

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maintains that what Thanatos seeks is not dissolution per se, but the dissolution of boundaries, of the distinction of separateness,21 the merging of things kept apart. In this respect Thanatos, like Eros, seeks fusion, connectedness, yet it is not a fusion or connection with the forces of life, but with the forces of death. One of Alford’s examples from his clinical practice with regard to the effect of hatred is his description of Sinedu Tadesse, an Ethiopian student who killed her roommate (stabbing her forty-five times while the roommate was asleep) and subsequently hanged herself. The tragic events took place at a Harvard dormitory in 1995. Since Sinedu Tadesse left a detailed diary, Alford was able to reconstruct and probe her emotional state, more specifically her “hate” leading to the violent outburst. The dormant animosity Sinedu Tadesse experienced, caused by her feelings of jealousy and her inability to become like her roommate, or as Alford suggests, “become her roommate” reached a peak when the roommate was looking for someone else to share her room with. This was the straw that broke the camel’s back. The amalgam of humiliation and hate, caused by the roommate’s decision, led to her death and the suicide of Sinedu Tadesse, in a destructive fusion.22 The case of Sinedu Tadesse and similar cases illustrate that hate structures the ego; it defines the self; it in fact energizes the self. It establishes a connection between the hater and his or her world, which gives meaning and purpose to his or her life. It keeps the person in question from feeling helpless and inferior. In that sense it serves the self in an apparently positive way. As one of Alford’s patients maintains: “Hate is good for you. It puts you on a higher plane, where you don’t care about all the crap the guards give you”.23 As already indicated in Section 2, Alford maintains that it is important to understand hate, since much of social and political life is built upon it.24 Because hate seeks connectedness, as was argued above, it can create communities, consisting of those who hate the same other. It seems important to better understand the ways in which hate can corrupt social and political values such as loyalty and tolerance, turning them into racism, sexism and a fundamental repulsion of the other. This social-political hate is discussed at length in Venmans’s book on thumos,25 the third part of the human soul, introduced by Plato in his book The State.26 thumos, a concept taken from Homeric epic, 21 22 23 24 25 26

Alford C .F. (1998) (N 4) 67. Alford C .F. (1998) (N 4) 70. Alford C .F. (1998) (N 4) 72. Alford C .F. (1998) (N 4) 71. Venmans, P. (2011) (N 5). Plato (1999) (N 11).

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refers to self-assertion, to militancy, and a feeling of dignity. Venmans is not unique in his analyses of thumos. Sloterdijk preceded him with his book Zorn und Zeit (2006) (Rage and Time)27 in which he discusses the thumotic anger of the Christians and Communists and asserts that in our day and age we miss, and have in a way lost, a concerted anger towards injustice. Unlike Sloterdijk, Venmans questions whether we have really become a-thumotic creatures, proud of our common sense and pragmatism, but without thumotic energy. The thumotic fighting spirit, courage and dauntless action are typical for the classical warrior cultures, and prototypical of Achilles. In order to understand the concept, one should also take a look at Plato’s dialogue Phaedrus, in which Plato uses the metaphor of a pair-horse carriage drawn by winged horses to describe the different elements of the human soul. The two horses refer to thumos (the powerful energy discussed earlier) and epithymia, which refers to the primary physical needs that Plato considers the opposite of thumos. The driver of the carriage refers to logos, (reason) and is focused on controlling the different horses and in doing so direct the thumotic power and energy to the goals the logos aims for. Plato’s metaphor was an inspiration to Freud’s theory of the primary drives (Eros and Thanatos), and his distinction between the ego, super-ego and id or “Es”. The id, or “Es”, contains the Eros and Thanatos drives. Similar to the Dionysian energy discussed by Nietzsche (cf. Verweij 2011)28 thumos is a constructive power that can, however, turn into its opposite and become violent and destructive, once it is not kept in line and channelled in the right direction, like the horses in Plato’s metaphor. It is interesting to note that Plato suggest that thumotic energy should be cultivated in young children; these “young lions” should be educated in how to control and steer their temper.29 This seems important, since it has become clear that both Plato and Freud and one might also add Nietzsche do not consider the human soul to be harmonious. On the contrary, there is a continuous strife between the different elements in the human soul. Thumos needs discipline and self-control. Yet these controlling mechanisms should not suffocate the thumotic energy as such. For, steered in the right direction, its courageous and energetic commitment can be used to strive for “a good cause”. Thumotic energy has a destructive and constructive side depending on the goals it strives for; it completely gives itself in a wholehearted dedication. However, this wholeheartedness can easily be misused, turning it into destructive hate. It is precisely for this 27 28 29

Sloterdijk, P. (2006), Zorn und Zeit. Politisch-Psychologischer Versuch, Suhrkamp Verlag, Frankfurt am Main. Verweij, D. en Jespers F. (2011), Passie en Persoonlijkheid (N 20). Venmans, P. (2011) (N 5) 50–55.

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reason that we hold thumotic violence in abhorrence, yet at the same time, we are fascinated by it. Venmans maintains that even though thumos has an undoubtedly dangerous (violent) side, it seems to be an inherent part of who we are, and of the way we look at ourselves,30 and search for recognition.31 Venmans colligates thumos, the warrior spirit, to Hegel’s struggle for recognition and the ensuing master-servant dialectic as described in the Phenomenology of Spirit. The prototypical structure of human conflict that is extrapolated to human history is the fight of two opponents whose strife for recognition ends in the constitution of a master (the winner) and a servant or slave (the loser) relationship. Venmans discusses two variants of this story. The first one is a Marxist-Leninist one in which the labourers (the former slaves) establish their power trough a thumotic revolution. The second one, which is extensively discussed by Fukuyama,32 implies that violence will eventually come to an end once liberal democracies have been established; since in these democracies each individual will get the recognition he or she strives for. However, even Fukuyama and with him Venmans realises that this ideal “end of history” is not in fact the final chord. As Venmans rightly states, liberal politics cannot answer the questions of life; it creates the conditions of possibility for each individual to answer these questions him or herself.33 This statement touches upon the important philosophical topic of the difference between “freedom from” and “freedom to”. We can free ourselves (or be freed by others) from repressive and restricting structures, yet this does not guarantee that we know how to take up our freedom and construct a so-called “flourishing life”, let alone a society in which we can all flourish.

Hate, Terrorism and Counter-Terrorism

On the basis of the psychoanalytical and philosophical insights discussed in the previous sections, the second part of this paper aims to answer the ­question: what are the conditions of possibility for “hate” to be incited in such a way that it can explode in a social and political context attempting to annihilate this same context? An answer to this question will generate more insight in effective ways to counter terrorism. As indicated in the introduction, the focus in the second part of this paper will be on three recent analyses of t­ errorism 30 31 32 33

Venmans, P. (2011) (N 5) 17. Venmans, P. (2011) (N 5) 27. Fukuyama, F. (1992), The End of History and the Last Man, Avon Books, New York. Venmans, P. (2011) (N 5) 143.

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by respectively German author and philosopher Hans Magnus Enzensberger (2006),34 Dutch terrorist expert Beatrice de Graaf (2010),35 and Belgian Islamologist Montasser AlDe’emeh (2015).36 It seems a mistake to consider the terrorist attacks of 9/11 and thereafter as a new phenomenon and the appertaining counter-terrorism as a new challenge. In doing so, many insights and best practices from the past will be put aside. This also holds for the basis of destructive hate in terrorism, as discussed in the first part of this article. Moreover, this destructive hate also seems to be something that we produce ourselves. In his book “Schreckens Männer. Versuch über den radikalen Verlierer” Enzensberger maintains that the organisation of our global community, based on economic imperialism and competition implies that the amount of “losers” increases on a day-to-day basis. In that sense our global community produces losers. It is important to underline three points with regard to Enzensberger’s text. First of all it should be noted that the English term “loser” seems to have a different – in the sense of more negative – ­connotation than the German term “Verlierer”, yet it seems an adequate translation when one keeps in mind that the loser owes his identity to his opposite: the radical winner. (cf. Section 3 with regard to the Hegelian master/servant opposition that Enzensberger also has in mind in this context). Secondly, according to Enzensberger the radical loser is almost always a man. He ascribes a supremacy to himself that was taken for granted in the past. However, this is a supremacy that has evaporated over the years. The radical loser has not reconciled himself with the facts that his primacy is over and that his power has gone. Enzensberger calls this an imaginary drop that is usually unfamiliar to women.37 Thirdly, it is important to note that not all losers are radical losers. According to Enzensberger a loser becomes a radical loser when he tells himself that he is a loser and nothing else.38 Notably, in telling himself this he identifies with the winner and it is this voice of the winner that he has made himself familiar with. Thus the other, the winner, is his point of reference. Who are these radical losers? In Enzensberger’s view they are isolated persons that find no connection in our globalized world. This is due to the fact that social and political developments have led to the “democratization of the struggle for recognition”39 and created rights with regard to human dignity, and thus 34 35 36 37 38 39

Enzensberger H.M. (2006) (N 7). Graaf, de, B. (2010) (N 6). AlDe’emeh, M. (2015) (N 8). Enzensberger H.M. (2006) (N 7) 9. Enzensberger H.M. (2006) (N 7) 9. Enzensberger H.M. (2006) (N 7) 14.

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expectations with regard to equality, that can only be enjoyed by the happy few. The omnipresence of this inequality, daily demonstrated by the media, forms the focal point for the radical loser and the comparisons that he makes always turn out to his disadvantage. The radical loser is obsessed with this comparison in which people that do better always form the standard; he thus only seems to have a keen eye for his deficient circumstances, not for his own shortcomings and failures. Moreover, the comparisons he makes lower the threshold to the amount of pain he can take, and increase the feeling of injustice. He feels insulted, humiliated and injured and in no way does he consider himself responsible for his situation. He thus has to find the ones who are responsible for his fate. These people are easy to find; they are either found on an ideological or political level or on a personal level. They can be foreigners, secret services, Communists, Americans, multinationals, infidels and: “almost always Jews”.40 Enzensberger maintains that when the radical loser is not rescued by an ideology and is thus not able to find a social or political goal, he will look for this goal in his personal surroundings: an unjust superior, a rebellious wife, boisterous children, nagging neighbours, civil servants who deny him his perceived rights, teachers who give him unsatisfactory marks, etc.41 However, when the radical loser is rescued by an ideology there is a different story. He can surmount his isolation and find a collective of equals, a “loser’s fatherland”.42 Enzensberger also calls this “loser collectives”.43 In such a collective the destructive energy can become absolutely unscrupulous, an amalgam of death wish and megalomania, according to Enzensberger. The interviews that Montasser AlDe’emeh44 did with jihadists from Belgium, the Netherlands and Jordan, corroborate this insight.

Destructive Hate

The destructive energy of the radical loser is based on his feelings of humiliation and injury caused by the object of his hate, which can be found either on a social and political level, or on a personal level. Or on both, as the story of Montasser AlDe’emeh’s younger years illustrate (cf. Section 6). Enzensberger gives a few examples of the radical loser that operates on the personal level: it is the 40 41 42 43 44

Enzensberger H.M. (2006) (N 7) 17. Enzensberger H.M. (2006) (N 7) 26. Enzensberger H.M. (2006) (N 7) 22. Enzensberger H.M. (2006) (N 7) 26. AlDe’emeh, M. (2015) (N 8).

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man who first kills his wife and children and finally himself;45 or the one who has barricaded his house, holds his landlord who comes for his money hostage and shoots at the police when they arrive.46 The shootout in a supermarket or on the street is yet another example.47 The radical loser who operates on the social and political level is, for instance, the Islamic terrorist that plays an important role in Enzensberger’s text. What both types of radical losers have in common is that they seclude themselves, become invisible and cherish their phantasm, which is the ultimate expression of their hate. In doing so, they build new energy and wait until their time has come. Enzensberger underlines the “enormous destructive energy” in the radical loser that can explode any moment; when it does it creates a bloodbath that will precipitate his own death.48 The destruction of the other that is always also the destruction of the self, was also discussed in Section 3 and is corroborated by the interviews of Montasser AlDe’emeh (2015). Enzensberger points out that, because the radical loser cannot blame himself without blaming the other, there is only one way out of this “devilish circle”.49 It is the “fusion of destruction and self-destruction, aggression and auto-aggression”.50 At the moment of his explosion the radical loser experiences an enormous power; he can finally triumph over the others by destroying them. However, at the same time he acknowledges the flipside of this power, which is the worthlessness of his life. This is what makes him willing to destroy himself. One could say that the total destruction of those who have made him a loser implies the total liquidation of “losership” as such, including oneself as a loser. There is a clear analogy with regards to the description of destructive hate on the individual level by Alford (cf. Section 3) and the description of destructive hate on the social-political level by Enzensberger. On both levels it starts with an abyss between the “I” (we) and the other (s).

Fanning the Flames in the Abyss of Hate

In her book on counter-terrorism de Graaf51 also mentions the abyss, a key concept discussed at length by AlDe’emeh as will be illustrated in Section 6. 45 46 47 48 49 50 51

Enzensberger H.M. (2006) (N 7) 11. Enzensberger H.M. (2006) (N 7) 11. Enzensberger H.M. (2006) (N 7) 12. Enzensberger H.M. (2006) (N 7) 12. Enzensberger H.M. (2006) (N 7) 17. Enzensberger H.M. (2006) (N 7) 17. Graaf, de, B. (2010) (N 6).

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The abyss refers to the image of the enemy “the terrorist” on the one side and that which needs to be protected (democracy, rule of law, the population), on the other side.52 It is important to note that this abyss is sustained and developed by both sides, amplifying the mutual hostility. On the one side terrorists achieve maximum effect by meticulously staging their destructive capabilities. In this context both de Graaf and Jenkins (1975)53 refer to “theatre”. The title of de Graaf’s book is Theatre of Fear, and Jenkins states that terrorism is in fact theatre.54 Mobilizing the media and generating publicity are the main goals of terrorist organisations. Actions are staged and styled and aimed at capturing the attention of the public, provoking them and above all frightening them and thus preserving the abyss between the two sides. The effect of the destructive actions terrorist undertake on the one side of the abyss is strongly dependent on the reactions of the public on the other side.55 These reactions will have an equivalent destructive scope when politicians and the media continuously strengthen the increased alienation and mental distance between the alleged terrorists on the one side and the threatened society on the other side. Both sides of the abyss refer to “the other” as an enemy with capital letters, which is the precondition for the willingness to totally annihilate this “Enemy”, as Plato (The State 1999) and Schmitt (2015)56 have illustrated convincingly. Notably, both sides create their radical “Enemy” when terrorism becomes a matter of national urgency, or in the discourse of the Copenhagen School, of securitization.57 The better the authorities succeed in framing the enemy as a threat to national security and all the values “we” stand for, the more the acceptance grows for extraordinary measures,58 even measures that were not seen as legitimate before the successful framing of the enemy as a danger to national security. This is exactly what benefits terrorist groups; moreover it is precisely what they aim for. Terrorisms flourishes on the basis of polarisation, consequently, when this polarisation is undermined, terrorists lose ground. They need stories of injustice, suffering and repression to convince people of their legitimacy. In that sense counter-terrorism can work as a booster for 52 53

54 55 56 57 58

Graaf, de, B. (2010) (N 6) 19. Jenkins, B. (1975) “International Terrorism: A New Mode of Conflict”, in: Carlton, D and Schaerf, C. (eds) International Terrorism and World Security, New Haven, Yale University Press. Jenkins, B. (1975) (N 46) 16. cf. also Graaf, de, B. (2010) 266. Schmitt, C. (2015) Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien, Duncker & Humblot, Berlin. Graaf, de, B. (2010) (N 6) 20. Graaf, de, B. (2010) (N6) 20.

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radicalisation; it can increase a sense of injustice and thus revenge.59 This is illustrated in De Graaf’s (2010) research. She focuses on three elements of counter-terrorism policies that are not often discussed: 1) agenda setting 2) political and public support 3) the performative power of counterterrorism policies. These points are reflected in the way in which the policy is placed on the political agenda, the way in which the agenda setting finds political and public support and the extent to which the policy influences and sets the tone of the discourse. In the debate with regards to the effects of counter-terrorism, the importance of presentation and perception management are often underestimated.60 De Graaf shows that a minor performative power mostly has a quick neutralizing effect on radicalisation and political violence. The choice for punctual crime fighting, and reticence with regards to discourse and attitude generate the best results in the long run and are crucial to the reinstatement of social order.61 Thus, contrary to what one might expect, a minor performative power with regard to counterterrorism can eliminate radicalisation tendencies at their source. Consequently, a major performative power has the opposite effect. In extreme cases the definition of the terrorist as an enemy of the state, and the proclamation of a “war on terror” can become a self-fulfilling prophecy.62 In this context de Graaf mentions American terrorist experts Kruglanski, Crenshaw, Post and Victoroff, who already stated in 2008 that it was about time that the metaphor “war on terror” was replaced by another description, since the metaphor simplified the problems with regards to terrorism; it enkindled more resentment and rancour and was as such far from effective.63 This is in line with the statement of British minister of foreign affairs David Miliband, who concluded in an interview with The Guardian (January 15, 2009)64 that the so-called war on terror was “wrong and misleading” and maintained that: “The more we lump terrorist groups together and draw the battle lines as a simple binary struggle between moderates and extremists or good and evil, the more we play into the hands of those seeking to unify groups with little in common,”65 Miliband argues, in a clear reference to the rhetoric of the Bush era. “We should expose their claim to a compelling and overarching explanation 59 60 61 62 63 64 65

Graaf, de, B. (2010) (N6) 152. Graaf, de, B. (2010) (N6) 141. Graaf, de, B. (2010) (N6) 289. Graaf, de, B. (2010) (N6) 140. Graaf, de, B. (2010) (N6) 20. https://www.theguardian.com/politics/2009/jan/15/war-on-terror-miliband and https:// www.theguardian.com/commentisfree/2009/jan/15/david-miliband-war-terror. Miliband D. (The Guardian 15 2009) (N64).

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and narrative as the lie that it is. (…) Terrorists succeed when they render countries fearful and vindictive; when they sow division and animosity; when they force countries to respond with violence and repression. The best response is to refuse to be cowed”.66 De Graaf’s research indeed shows that there is a significant relation between on the one hand the way counter-terrorism is presented and subsequently able to mobilize the public, and on the other hand the development of terrorist violence (the effect of the above mentioned performative power). When the attacks generate a lot of victims, the measures taken by the government have a strong mobilising effect. The attacks are omnipresent in the media and lead to political reactions. This also works the other way around. Political attention, publicity and mass-mobilisation are seen by terrorist organisations as a great success; the more media coverage the more successful the terrorists perceive their attacks, which leads to new attacks and recruitment and thus to the continuation of violence in a reinforced abyss between “us” and “them”.

A Palestinian Boy Growing Up in Belgium

According to Enzensberger, whose insights were discussed in Section 4, the purest form of Islamic terror, the suicide attack, has a gravitational appeal for the radical loser. It offers him the opportunity to let himself go in his megalomania and his self-hatred. That he not only kills himself but others as well is his ultimate satisfaction, as was discussed in Sections 3 and 4. The crucial question is of course, where does it all start? In that sense it seems important to map out the hate trail from start to finish in more detail, which is especially relevant with regards to counter-terrorism. It will help one to better understand terrorists and especially terrorists in the making, who are bred with narratives about injustice and revenge, as was illustrated in the forgoing section. Once the terrorist narratives are understood, they can be countered effectively. In this context Casebeer and Russell (2005)67 maintain that it would be better if terrorist fighters take a closer look at and listen to the stories terrorists tell and react to this with an alternative narrative,68 which closely relates to de Graaf’s remark, 66 67 68

Miliband D. (The Guardian 15 2009) (N64). Casebeer and Russell (2005) “Storytelling and Terrorism: Towards a comprehensive ‘Counter-Narrative Strategy’”, in Strategic Insights jrg. 4 (2005) nr. 3 pp. 1–16. See also De Graaf, B and Demant, F.(2010 b) “How to Counter Radical Narratives: Dutch Deradicalization Policy in the Case of Moluccan and Islamic Radicals”, in Studies in Conflict and Terrorism.

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quoted in Section 1, that in order to really understand a terrorist one could better turn to a novelist instead of a scientist. In this section I aim to take up these suggestions. Obviously, there are quite a few novels about the aspect of destructive hate in terrorism. To mention a few: Joseph Conrad (1907) The Secret Agent;69 Michel Houellebecq (2001) Plateforme70 (translated as Platform); John Updike (2003) Terrorist.71 Notwithstanding the fact that these novels contribute to more insight into the terrorist mind and context, their authors are all fiction writers. For that reason I chose to take a closer look at the biographic narrative of AlDe’emeh described in his book, De Jihadkaravaan (2015).72 The story of AlDe’emeh’s younger years starts with the tragic story of his parents, Palestinian farmers that were chased away from their land near the Jordan border; they subsequently lived as refugees in Jordan and finally came to Belgium, where they officially became Belgian citizens after 10 years. AlDe’emeh realizes that due to the grief and homelessness of his father, he himself almost lost all sense of direction in his life. His father (he calls him an authoritarian man blind to the struggles of his son) always watched the news on the Arabic tv channel Al Jazeera, focussing on the continuous attacks in the Middle East, the destruction of buildings and the killing of children. Every morning his father called AlDe’emeh downstairs to watch the pain and suffering of innocent Muslim people with him. AlDe’emeh calls it the “10 minutes morning hatred”. “My house was a cocoon of grief and hate”.73 “I learned to hate the Jews without ever having met one”.74 The influence of the 10 minutes morning hatred and the stories of his father and older brothers on the one hand and his position at school in Belgium on the other hand, (where he was the absolute other, which lead to the obvious discrimination that come with this token position), made him slowly but steadily fall into what AlDe’emeh himself calls “the abyss”. The abyss is the metaphor with which he describes the parting of two worlds, the Western world and the world of the Middle East, creating a place in which “the seed of hate was planted”.75 It is precisely this abyss that made it possible for hate to grow, to grow fast and strong, and subsequently overgrow everything else. The fall into the abyss started on 9/11, when according to AlDe’emeh, nuance and empathy died. Like all other Belgian kids AlDe’emeh watched the 69 70 71 72 73 74 75

Conrad, J. (1907) The Secret Agent, published by Seven Treasures Publications in 2009. Houellebecq, M. (2001) Plateforme, Editions Flammarion, Paris. Updike, J. (2006), Terrorist, Random House, New York. AlDe’emeh, M. (2015) (N 8). AlDe’emeh, M. (2015) (N 8) 35. AlDe’emeh, M. (2015) (N 8) 36. AlDe’emeh, M. (2015) (N 8) 32.

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9/11 attacks on television, however, while watching it, he also saw the sparkle in his father’s eyes, a sparkle that was also there when his father talked about AlDe’emeh’s eldest brother who had been a freedom fighter in the Middle East. Even though he could at first not understand how his father could be pleased about this violence, AlDe’emeh slowly started to wonder whether his father would be proud of him if he would become a martyr too. Much later he realized that “the plumes of smoke were a triumph, a satiation of a revengeful and traumatised heart”.76 At the time of the attack AlDe’emeh was still a kid and, as with many kids, much more interested in the scores of his favourite soccer team than the aftermath of the 9/11 attacks. However, in his classroom he was time and again called to account for all kinds of issues related to these attacks, which he obviously had no part in and could do nothing about. Yet, in the eyes of many Belgians he became Osama bin Laden.77 Due to discrimination, prejudice and mutual incomprehension, AlDe’emeh was increasingly alienated from his Belgian surroundings. “The Western world, to which I belonged, was continuously at war with my people in the Middle East, but at school this was not discussed”.78 Forced to one side of the abyss, AlDe’emeh slowly discovered his love for Islamic resistance movements, which he considered completely justified. He listened to speeches of their leaders and studied the history of their movements. It is interesting to note that he was also interested in European terrorist movements, like the raf (Rote Armee Fraktion) in Germany. Once You Tube was available on the internet, “the whole jihad universe opened up” to AlDe’emeh.79 He describes time and again the evaporation of the hope that could have gotten him out of the abyss and away from the path of hate.80 At one point he was actually making preparations for a future as a “freedom fighter” and martyr. However, his life took a different turn. With the help of some of his Belgian teachers he was actually able to change his life, or more notably, to change himself. In AlDe’emeh’s own words: “they (a few teachers dv) presented the rope that made it possible for me to climb out of the abyss”.81 AlDe’emeh slowly started to realise that he had become the “prisoner of blind hate and revenge” and that he had to free himself from the desperate desire for people to understand him.82 There were a few events that shook up his black 76 77 78 79 80 81 82

AlDe’emeh, M. (2015) (N 8) 24. AlDe’emeh, M. (2015) (N 8) 26. AlDe’emeh, M. (2015) (N 8) 39. AlDe’emeh, M. (2015) (N 8) 60. AlDe’emeh, M. (2015) (N 8) 64. AlDe’emeh, M. (2015) (N 8) 40. AlDe’emeh, M. (2015) (N 8) 249.

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and white world view. One of them was the conflict between Fatah and Hamas, which led to AlDe’emeh’s anger about the continuous fights of Arabs amongst themselves. Another crucial event was the trip he made with his classmates to Auschwitz. In order to prepare himself, he decided to watch the films “The Pianist” and “Schindler’s List”. With tears in his eyes he realised that he hated the Jews, but in watching the film he himself became a Jew, ostracized by the world. “I felt part of the invisible train of agonized people, who had watched the face of evil and who would for that reason never be understood”. He continues: “Universal pain can invite you to love and surpasses the hate between people”.83 When his father questioned him about his visit to Auschwitz he answered: “It doesn’t matter whether these victims are Jews, they are people whose soul has been damaged, like ours”.84 “You cling to hate because you think it will make you stronger”.85 AlDe’emeh noticed that his mother nodded while he talked to his father, but she kept her opinion to herself. Later on his mother told him she was glad he had gone to Auschwitz – “She was a simple but wise woman”.86 AlDe’emeh realized that “I had inherited the hate without knowing why”.87 He also realized that, as one of his friends stated “studying is the greatest resistance; education is power”.88 He learned more and more about the history of the Middle East, the fight between “brothers”, the absence of unity, disagreement and fragmentation, sectarian hate of Shiites and Sunnites. He found support and understanding from a professor (a Jew) at his university in Belgium. Being able to talk, to exchange ideas, increased his insights. “The more I became aware of the humanity of my so called enemy the more human I became.”89

Conclusion: Countering Terrorism in a Morally Responsible and Effective Way

Both twenty-first century terrorism and counter-terrorism seem to rise from the same source. nato explicitly mentions that its response to terrorism has been largely shaped by the terrorist attacks of 11 September 2001. “Allies 83 84 85 86 87 88 89

AlDe’emeh, M. (2015) (N 8) 258. AlDe’emeh, M. (2015) (N 8) 259. AlDe’emeh, M. (2015) (N 8) 260. AlDe’emeh, M. (2015) (N 8) 264. AlDe’emeh, M. (2015) (N 8) 265. AlDe’emeh, M. (2015) (N 8) 269. AlDe’emeh, M. (2015) (N 8) 294.

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reaffirmed that the Alliance must deter and defend against emerging security challenges where they threaten the fundamental security of individual Allies or the Alliance as a whole”.90 However, that is not as easy as it sounds. There is no universally applicable counter-terrorism policy for democracies as is also pointed out by Wilkinson (2006).91 The reason for this can be found in the often-used definition of terrorism by Alex Schmid: “Terrorism refers on the one hand to a doctrine about the presumed effectiveness of a special form or tactic of fear-generating, coercive political violence and, on the other hand, to a conspiratorial practice of calculated, demonstrative, direct violent action without legal or moral restraints, performed for its propagandistic and psychological effects on various audiences and conflict parties”.92 Terrorism is in its doctrinal and practical deviance from generally accepted humanitarian principles quite the opposite of justice and morality, and as such it poses fundamental ethical challenges to those countering it. The “eye for an eye, tooth for a tooth” strategy, or the adaptation to “terrorist” standards, and thus the abandonment, even temporarily, of generally accepted ethical standards, forms a huge pitfall and precisely benefits the terrorists, as was discussed in Section 5. How can one counter terrorism in an effective and morally responsible way? The answer seems to lie in an old adage by Sun Tzu: “Know the enemy and know yourself; in a hundred battles you will never be in peril”.93 This paper has underlined the advantage of the sociopsychological insight that Sun Tzu refers to, or the insight into the “human factor” in this context. Mapping out the “hate trail” as mentioned in the introduction of this paper, underlines the relevance and importance of this socio-psychological insight and aims to contribute to a better understanding of both terrorist and counter-terrorist activities. Enzensberger, de Graaf and AlDe’emeh point out how “we” in our globalized and geo-political endeavours produce our own “radical losers” amongst whom we find the terrorists of the 21st century. In that sense “we” produce and reproduce hate and sustain and develop the abyss that generates this hate, as was discussed in the sections above. The jihad train that is based on this hate starts from frustration and rejection and goes through recognition and sense making, finally ending in the feeling that life is at last meaningful. This is precisely what the interviews with 90 91 92 93

Nato (2012) http://www.nato.int/cps/en/natohq/official_texts_87905.htm?selectedLocale =en. Wilkinson, P. (2006), Terrorism versus Democracy. The Liberal State Response, Routledge, New York/London. Schmid, A. (2009), Handbook of Terrorism Research, Routledge New York/ London. Sun Tzu (1963) The Art of War, translated by S.B. Griffith, Oxford University Press; 84.

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jihadists tell us.94 It starts from the perceived emptiness of Western civilisation and reaches to brotherhood and comradeship in battle. Fighting together for a sacred goal, a communal goal, is an experience that seems absent in the highly individualized and supposedly peaceful Western society. The hate trail is in fact a never ending circle, leading from the personal level to the political level and from the political level to the personal level, forever generating new radicalized youngsters who hate because they are hated, who do not acknowledge the humanity of the other because the other does not acknowledge their humanity. On both sides of the abyss they continue sculpting the statue of their hateful enemy, forever enlarging it. 94

AlDe’emeh, M. (2015) (N 8).

Chapter 12

Eye in the Sky: The Paradoxes of War Outside War, Imminent Threat, and the Virtuous Warrior in Military Drone Use Trish Glazebrook The film Eye in the Sky opens with a quotation credited to Aeschylus: “In war, truth is the first casualty.”1 Ironically, this attribution is false. President Obama said in his Nobel Peace Prize acceptance speech in 2009 that “in the conduct of war, America must be the standard bearer … No nation can insist that others follow the rules without following them itself.”2 In 2012, John Brennan, Presidential Assistant for Homeland Security and Counterterrorism, known as “Obama’s point person on counterterrorism strategy”, gave a press briefing on us military use of remotely piloted aircraft, aka “drones”, at the Woodrow Center in Washington, d.c.3 He noted that, as the first nation regularly to conduct drone strikes, the us is establishing precedents. These claims about us responsibility, leadership and accountability promise high standards of legality and ethics in us military use of drones. The Obama administration should especially be held to these standards because during the first term of his presidency, nicknamed “the drone presidency”,4 Obama launched over six times as many drone strikes as Bush did in both terms.5 Though over forty countries use drones,6 demand for standards makes the us a prime candidate 1 Eye in the Sky, Gavin Hood, dir (2015) Entertainment One/Raindog Films, London, uk. 2 Barack H. Obama, “Nobel Lecture” (10 December 2009) . 3 John O. Brennan, “The efficacy and ethics of us counterterrorism strategy” (30 April 2012) Woodrow Wilson Center, Washington dc This press briefing summarizes us drone policy before the 2013 Presidential Policy Guidance or 2015 Law of War Manual. As the earliest and closest thing to a white-paper on drone policy, it is discussed so often in this paper that rather than cite repetitively, all material is attributed in-text to Brennan. 4 David Cole, “The Drone Presidency” The New York Review of Books (18 August 2016) . 5 Michael J. Boyle, “The costs and consequences of drone warfare” (2013) Journal of International Affairs 89 1. 6 Chris Jenks, “Law from Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict” (2010) North Dakota Law Review 85 . © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_013

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for assessment of military drone use in general, while the scale of us deployment warrants particular examination. In the Nobel speech, Obama defined “just war” in terms of “last resort”, “selfdefense”, the principle of proportionality, and sparing civilians from violence. Brennan justified us drone use in terms of legality, wisdom, rigorous standards, and just war principles of necessity, distinction, proportionality and humanity. Obama further set parameters and process for use of “strike and surveillance assets … when taking action” in the Presidential Policy Guidance on Direct Action Against Terrorists (ppg),7 announced in 2013 and declassified in 2016. It requires adherence to just war principles, and a lengthy process for authorizing a target. Together with the 2002 Iraq Resolution8 and the 2015 Department of Defense Law of War Manual,9 these documents provide the policy context in which debates concerning us drone use have taken place, and against which it can be assessed with respect to international law and just war doctrine. Eye in the Sky serves as a fictional case study manifesting three paradoxes of drone use: the war outside war, imminent threat, and the virtuous warrior. Ambiguity concerning the “war on terror” uncovers the failure of traditional paradigms of war to hold in the context of this war outside war. Incommensurability between accountability and imminent threat is shown to arise from the inadequacy of international frameworks to encompass an evolving paradigm of war. Just war principles are shown to break down in drone warfare over the challenge of distinguishing enemy combatants from non-combatants in the “war on terror”. Drone warfare is, in conclusion, shown to destroy the distance-warrior’s ethical subjectivity through moral injury, thereby precluding the possibility of a “virtuous warrior”.

The Film

Gavin Hood, who directed Eye in the Sky, asks the utilitarian question “will you sacrifice an innocent life … to possibly prevent the loss of eighty lives?”10 In 7

8 9 10

Presidential Policy Guidance: Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013) Hereafter ppg. Authorization for Use of Military Force Against Iraq Resolution, Pub.L. 107–243, 116 Stat. 1498, enacted October 16, 2002, H.J.Res. 114. Stephen W. Preston, Department of Defense Law of War Manual (Office of General Counsel, Department of Defense 2015) Hereafter “the Manual”. Penelope Poulou, “Thriller ‘Eye in the Sky’ Examines Ethics of Drone Warfare” Voice of America (29 March). All quotations from Hood are taken from this interview.

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the film, Colonel Powell leads a mission to capture Susan Danford, a British ­national, high-value target in the terrorist group al Shabaab, and on both the uk and us East Africa Most Wanted Lists. Powell is in a command center in north London and reports to a legal, military and government committee overseeing the mission from a British Cabinet office in Whitehall. The us provides reconnaissance using a drone piloted by a Lieutenant in Nevada. Kenyan forces are on the ground to make the capture. While confirming Danford’s identity, P ­ owell uncovers a suicide-bombing in preparation. She requests a mission upgrade to kill that is eventually authorized after going through both uk and us chains of command. Just as the missile is to be fired, a young girl arrives to sell bread outside the targeted building. An attempt to get her out of harm’s way fails. A collateral damage report is re-run until probability of her death is below a legally acceptable threshold of 45%. A missile is fired by the weeping Lieutenant; Danford survives. A second missile kills her and the girl. The film requires willing suspension of disbelief. The occupation of a Nairobi neighborhood by terrorist militia is entirely fictional. It also seems unlikely that the us would have an armed drone over Nairobi because it is not at war with Kenya. Yet the Obama administration has been secretive about drone use: campaigns in Pakistan, Yemen and Somalia, for example, have been denied in court.11 The film is also politically awkward for assigning Kenyan forces no decision-making role. The mission upgrade bypasses the Kenyan chain of command, despite a Kenyan drone operator being engaged continuously in the mission at increasing risk. At the very least, Powell should have a Kenyan military lawyer present when estimating collateral damage to the Kenyan civilian.12 us drone policy, however, explicitly does not require involvement or agreement of local government. The film provides multiple opportunities for concrete demonstration and discussion of legal and ethical issues in military drone use concerning the status of the “war on terror”, the requirement for “imminent threat” in self-defense justifications, and just war assessment.

The “War on Terror”

There is much disagreement about the legality of drones under international law. Anderson advocates for drone use while conceding that his position “runs sharply counter to the dominant trend … which is overwhelmingly hostile to

11 12

. Boyle (n 5) 2. Thanks to Dr. Ted van Baarda for noting this point.

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the practice”.13 Only a year later, Paust surveys a large literature agreeing that armed attack by non-state actors warrants response, even on foreign soil.14 Jenks argues that analysts talk past each other because they disagree on the extent to which laws of armed combat and international human rights apply to drones.15 Dewyn argues that drone use is morally unacceptable without an appropriate framework for decision-making and internationally agreed parameters.16 Since 2009, the us has been training more drone pilots than bomber pilots, so Jenks argues for the importance of establishing a legal framework for discussion. Vogel proposes just such guidelines. They include the necessity of drone strikes being conducted by “lawful combatants”, within “actual armed conflict”, against “lawful targets”.17 As a High Contracting Party to the Geneva Conventions, the us is at great pains to establish the legality of its drone use, and has had legal experts, including Eric Holder (Attorney General), Harold Koh (State Department), Jeh ­Johnson (Department of Defense), and Stephen Preston (cia), affirm compliance with domestic and international law. International law provides conditions under which killing is justified, all of which assume such killing takes place during war. If the “war on terror” is not really a war, drone strikes could very well be considered criminal. This section examines us ambiguity con­ cerning the status of the “war on terror”, assesses the role of the cia, and examines its geography to determine its reach. Together, these discussions identify the war “on terror” as an evolving paradigm of warfare. Pakistan and the Paradox of War Outside War A month after the September 11 attacks (9/11) in 2002, the Iraq Resolution was enacted, giving President Bush power “to use all necessary and appropriate forces” against nations, organizations, and individuals responsible. The novelty of the Iraq Resolution was its authorization of military action against individuals 13 14

15 16

17

Kenneth Anderson, “Targeted Killing in u.s. Counterterrorism Strategy and Law” (2009) or . Jordan J. Paust, “Self-Defense Targetings of Non-State Actors and Permissibility of u.s. Use of Drones in Pakistan” (2010). Journal of Transnational Law & Policy 19 2, 237; University of Houston Law Center No. 2009-A-36 . Jenks (n 6). Captain Michaël Dewyn, “The use of armed drones and risk transfers: in search of ethical principles for the grey zone between war and peace in the fight against terrorism” 6th Annual Meeting of the European Chapter of the International Society of Military Ethics (2016) Akershus Fortress, Oslo, Norway, May 23–25. Ryan J. Vogel, “Drone Warfare and the Law of Armed Conflict” (2011) Denver Journal of International Law and Policy 39 1, 138 .

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and organizations on foreign soil, and moreover outside war zones and in military operations other than war. The ppg some eleven years later likewise details processes for drone strikes “outside the us and areas of hostilities” as if extending the Iraq Resolution beyond Iraq. International law cannot be unilaterally decided in this way, and exceeds us authority outside its borders, especially since the us is self-authorizing the use of military force beyond the context of traditional war between nation-states. This position is untenable in the long term as it risks exposing drone use in the “war on terror” to the charge of unlawfulness. This is the legacy of drone policy Bush left Obama. As early as August 2007, then-Senator Obama stated his intent to end the Iraq war and focus efforts instead on “the war that has to be won,” i.e. the war against al-Qaeda. Brennan quotes this in 2012, and decisively and vehemently affirms Obama’s certainty “about one thing. We are at war.” He cites Obama’s promise to uphold laws and values, to work with allies and partners whenever possible, not to hesitate to use military force against terrorists posing a direct threat to America, and to act to protect the American people, given actionable intelligence about high-value terrorist targets. These statements affirm us engagement in Pakistan with al-Qaeda in a war subject to law and just war doctrine. O’Connell argues, however, that Obama’s drone attacks in Pakistan cannot be justified under international law precisely because the “global war on terror” is not governed by international law.18 Pakistan did not ask for us support in fighting al-Qaeda, which would have made us personnel lawful combatants. Rather, as an Express News reporter notes to Brennan, the Pakistani people have repeatedly protested against us drone strikes. The us relationship to Pakistan is fraught with tension. When the us hunted bin Laden in Pakistan post-9/11, the Pakistani Government agreed on the condition that this consent was deniable.19 The Government of Pakistan was not aware of the Navy Seal mission that killed bin Laden until it was complete. The us has provided substantial non-military aid to Pakistan, but to what extent this constitutes willing alliance is unclear. Tension arises because al-Qaeda has influence on the Government of Pakistan, which appears caught in hostilities between alQaeda and the us, while Pakistani civilians face the on-going threat of drones 18

19

Mary Ellen O’Connell, “Unlawful killing with combat drones: the case of Pakistan 2004– 2009”, in Simon Bronitt, ed., Shooting to kill: the law governing lethal force in context, Legal Studies Research Paper 09-43. Notre Dame, in: Notre Dame Law School (2010) . Jeremy Scahill, “The Secret War in Pakistan” The Nation (December 7 2009) .

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hovering above used with lethal force but little warning. The protests were against such terrorizing of civilians that breaches gciv. Moreover, appearing powerless to control us drone use undermines the Pakistani Government in its homeland. The legality of us drone strikes in Pakistan depends, on the one hand, on a tenuous relationship that looks at best like failing diplomacy and at worst like a double-play of financial enticement and drone bullying, while on the other hand, it can only be justified in international law if the “war on terror” constitutes the kind of war to which international laws of armed combat apply. The us wrote policy applicable to drones for military operations “outside war” in the Iraq Resolution and “outside active hostilities” in ppg; yet drones are addressed in the Law of War Manual, and Brennan vociferously claims himself and cites Obama that the “war on terror” is a war. The us is accordingly ambiguous about the “war on terror”, and this ambiguity renders “lawful combatant” and “lawful target” equally undecided even prior to the practical issues in establishing who is a combatant detailed below. So Vogel’s guidelines discussed above are moot as they depend precisely on the ambiguous status of the “war on terror” as actually a war. The paradox of this war-that-is-not-a-war is that war traditionally happens internationally between states, or domestically between a state and insurgent individuals and organizations. The “war on terror” is neither between states, nor fought on home ground; drones are the us weapon of choice in a different kind of war. The Role of the cia O’Connell argues further that because the “war on terror” is not a war, cia partic­ ipation is a crime. Anderson argues at the same Hearing that cia personnel are lawful combatants because they engage in “direct participation in hostilities.”20 The better legal view, he suggests, is that they function as civilians attached to a party involved in an armed conflict. Yet if cia personnel “function as civilians”, cannot any civilians be lawful combatants, including al-Qaeda? For Anderson, being a civilian is not a sufficient condition for combatant status: the civilian must also be “attached to a party” to the conflict. So, for example, the French Resistance during ww ii did not commit war crimes when it injured and killed German invaders. Anderson does not use this example, but he clearly 20

Kenneth Anderson, “Drones ii” – Kenneth Anderson Testimony Submitted to u.s. House of Representatives Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs, Second Hearing on Drone Warfare, April 28, 2010 and Testimony Submitted to the u.s. House of Representatives, March 23, 2010; American University wcl Research Paper (2011) 26 .

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holds that cia participation in the “war on terror” is lawful because the cia is attached to the us that is in conflict with al-Qaeda. The French Resistance provides a clear case justifying Anderson’s argument, yet differs entirely from the cia role in Pakistan because the French were responding to an invading force. 9/11 was an attack, but hardly an invasion. Al-Qaeda are not lawful participants under Anderson’s argument as they lack the attachment criterion; indeed, he argues that cia personnel are not lawful targets of al-Qaeda because terrorist organizations can have no lawful targets and have no right to use force against anyone. Lawful participation cannot follow for cia personnel as targets but not for al-Qaeda. Either both are lawful combatants, or neither. This is especially important because al-Qaeda prisoners of war are unprotected by gciii if not “lawful combatants”, as discussed below. The deep, unnoted implication of Anderson’s arguments about combatant status is not, however, that the “war on terror” justifies cia engagement; rather, the relationship between al-Qaeda and the cia is precisely what makes the “war on terror” a war. The point he depends on is that the cia role puts personnel at risk of capture, torture, and death. If, as I have argued, this argument applies equally well to al-Qaeda personnel targeted by cia intelligence, then this mutually dependent combatant status establishes the actuality of the “war on terror” by identifying personnel on both sides as lawful combatants. There is therefore reason to demand accountability concerning cia activities. Alston argues that the “total absence of credible transparency or verifiable accountability” of the cia’s part in drone use undermines international law and sets legal precedents that other states with problematic agendas will inevitably appeal to.21 Radsan and Murphy call moreover for due process in cia drone use, citing Boumediene v. Bush on detention of enemy combatants to argue that the us has due-process obligation to develop fair, rational procedures for targeted killing, no matter who is targeted or where, and to require independent, intra-executive investigation that is as public as national security allows.22 Given the risks to operatives noted above, the “as security allows” qualification may be so prohibitive as to moot the issue. 21

22

Philip Alston, “The cia and Targeted Killings Beyond Borders” (2011) Harvard National Security Journal; nyu School of Law, Public Law Research Paper No. 11-64 . Afsheen John Radsan and Richard W. Murphy, “Due Process and Targeted Killing of Terrorists” (2009) Cardozo Law Review 31, 405; William Mitchell Legal Studies Research Paper No. 126; Texas Tech Law School Research Paper No. 2010-06. .

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The Geography of the “War on Terror” The status of the “war on terror” is also an issue of geography. Brennan notes that drones are advantageous because they go everywhere. Amnesty International objects, however, that such “global war” treats the whole planet as a battlefield.23 The Bush administration’s “global war on terror” initiated a “legal geography of war” debate that caused critics to demand formal criteria setting geographical constraints, which constitutes a shift away from traditional legal standards that war takes place wherever there is “conduct of hostilities”.24 The “global war on terror” defines conflict by a threshold of sustained and intense hostilities with armed and organized groups. According to Anderson, Obama’s strategy is not global war. It does not treat the whole planet as a battlefield because it goes only where the terrorists are, which may be anywhere but is certainly not everywhere. That is, the “war on terror” is international, but not global. 9/11 changed contemporary warfare by triggering a “global war on terror” launched in the Iraq Resolution that authorized lethal force against persons and organizations neither on us soil nor under command of a foreign state. The Obama administration shifted away from the claim to global war, and also modified the original language of a war that is “outside war zones and in military operations other than war” to direct action against targets “outside the us and areas of active hostilities” in ppg. Seemingly caught between setting precedent for military use of force outside war by rogue states, and remaining vulnerable to 9/11-type attacks, the us wages a drone-war on terror of ambiguous status that it justifies on the basis of self-defense.

Self-Defense

This section argues that lack of transparency compromises us ability to justify drone use as self-defense under the un Charter, and the us position on un Resolution 2286 is examined to try to understand why the un fails to challenge that lack of transparency. The self-defense criterion of “imminent threat” is shown to be paradoxical when applied to drone warfare, and this paradox 23 Amnesty International. . 24 Kenneth Anderson, “Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’” (2011) Future Challenges in National Security and Law, Peter Berkowitz, ed., Hoover Institution, Stanford University; American University, wcl Research Paper No. 2011-16. .

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is argued to arise from the inadequacy of international law to provide policy and governance concerning drone technology in the “war on terror”. This inadequacy opens a lacuna in accountability that shifts the brunt of responsibility for collateral damage to soldiers on the frontlines of drone warfare. Transparency Paust argues that attacks by non-state actors can trigger the right of selfdefense under Article 51 of the un Charter, even when directed against nonstate actors on foreign soil.25 This Article says that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”26 Given almost two decades of us drone strikes, the un Security Council (unsc) appears not to be taking such measures. Article 51 also states that “measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council”;27 it is not evident that the us reported its almost 500 strikes between 2009 and 2016 alone.28 Nonetheless, the us falls back on self-defense. ppg allows lethal force when there is “threat to us persons”,29 and “in an effort to prevent terrorist attack against us persons”.30 Brennan argues that “al-Qaeda has brutally murdered thousands of Americans, men, women and children,” and repeatedly talks about threats to America and Americans, either stating or implying that drones are used in self-defense. Anderson argues that self-defense arguments for drone attacks preserve legal rationales going back to the 1980s culminating in the 1989 statement by Abraham Sofaer, a State Department legal advisor, endorsing us self-defense justifications when targeting terrorists in third-state safe havens.31 Anderson suggests moreover that new threats will likely emerge not covered by existing resolutions and authorizations, but to which the us will want to respond using self-defense. In his 2010 testimony, Anderson affirms that self-defense offers independent grounds for using force outside armed conflict, in support of Attorney General Koh’s statement to that effect a month 25 26 27 28

29 30 31

Paust (n 14). Charter of the United Nations. . Charter of the United Nations. . Spencer Ackerman, “Obama clams us drone strikes have killed up to 116 civilians” The Guardian (London, 1 July 2016) . ppg (n 7) 3. ppg (n 7) 1. Anderson (n 13).

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prior.32 He also attributes to Koh and Jeh Johnson claim that “the Constitution empowers the president to protect the nation from any imminent threat of attack”, and asserts the legality of lethal force “consistent with our inherent right of national self-defense.” Yet the us has been less than forthcoming in dealing with the un concerning drones. In 2016, the un Human Rights Council (hrc) voted to approve Pakistan-sponsored Resolution 2286 on ensuring that drone use follows international law, including human rights and humanitarian law.33 The us did not attend draft sessions because, State Department spokesperson Jen Psaki said, the hrc did not seem the right forum for a discussion narrowly focused on a single weapons delivery system. Coincident with publication by Human Rights Watch of a letter supporting the Resolution, the us issued an opposing statement urging others to vote against it, and subsequently did so itself. The Resolution calls upon member states to ensure transparency concerning drone use records, and to conduct prompt, independent, impartial investigation of anything indicating a violation of international law. Brennan said that Jack Goldsmith prompted the 2012 press briefing by indicating the need to convey to the American public the robustness of us decision-making processes on drone use, especially concerning high-value targeting, in order to bring credibility to the legality of us drone use and to the accuracy of facts about drone use. Brennan also notes that soon after taking office, President Obama pledged to share as much information as possible with the American people so they “can make informed judgments and hold us accountable,” and that Obama consistently encourages his national security team to be open and candid. Goldsmith thought that enough information could be disclosed without endangering critical intelligence. Brennan refers to Obama’s statement, however, that “national security requires a delicate balance between secrecy and transparency.” That balance was clearly tilted toward secrecy until 2016 when the ppg was declassified, at about the same time that drone strike data was released by court order. Resolution 2286 may very well have been unsupported by the us precisely because of its demand for transparency. There is nothing, Brennan moreover says, in international law that bans the use of remotely piloted aircraft in self-defense, or that prohibits the us from using lethal force against enemies outside an active battlefield, at least when 32 33

Anderson (n 20). Ryan Goodman, “United Nations Human Rights Council Adopts Resolution Calling For Drone Transparency and Accountability” A/HRC/25/L.32 (28 March 2014) .

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the country where such force is used consents or is a weak state that is unable or unwilling itself to act. O’Connell rejects this “weak state” argument because such arguments appear to support policy decisions already made rather than providing rigorous analysis of relevant law, and moreover, just war doctrine requires that lethal force be moral, but “weak state” arguments appear based on either realist power politics that send messages of strength to promote perceptions of power, or belief in the effectiveness of drones against terrorism.34 She repudiated such effectiveness the previous year.35 The claim that “nothing in international law… bans” drone use is a weak foundation for a broad statement of the legitimacy of us drone strikes, yet the Manual states that weapons not explicitly prohibited are not illegal per se,36 and Brennan’s comment is referenced concerning there being no law against drones and their particular benefits.37 The Manual further includes “remotely piloted aircraft” under “Other Examples of Lawful Weapons”.38 Article 36 of gci states that “in the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by [gc i] or any other rule of international law applicable to the High Contracting Party”. Drones are just such a new technology. This article is quoted in the Manual,39 yet the mere fact of novelty is also argued not to make a weapon illegal based on a 1976 Air Force pamphlet, ­followed by contrived appeal to customary practice concerning the absurdity of weapons being automatically prohibited simply because of lack of prior use.40 Article 36 puts the onus on signatory states to ensure that new weapons comply with international law; the Manual offers no account of compliance when discussing Article 36, and refuses this onus by limiting compliance to explicit prohibition. Lack of transparency renders the Obama administration suspect with respect to the lawfulness of its drone use under the un Charter and the Geneva Conventions, despite assertions of legality. Multiple assertions and a self-referencing system of such assertions provide no substantive basis. 34

35 36 37 38 39 40

Mary Ellen O’Connell, “Seductive Drones: Learning from a Decade of Lethal Operations” (2011) Journal of Law, Information & Science; Notre Dame Legal Studies Paper No. 11-35 . O’Connell (n 18). Preston (n 9) Para 6.5. Preston (n 9) Para 6.5.8. Preston (n 9) Para 6.5.2. Preston (n 9) Para 6.2.3. Preston (n 9) Para 6.2.1.

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The Paradox of “Imminent Threat” The self-defense justification depends in international law on the notion of “imminent threat.” Amnesty International objects to us invocation of selfdefense through the adoption of a radical re-interpretation of the concept of “imminence”.41 ppg and Brennan both use the term “imminent threat” without definition. ppg adds “continuing”,42 and Brennan shifts to “significant” threat. He says the purpose of drone attacks is “to disrupt plans and plots before they come to fruition.” “Significant” does not carry the immediacy of “imminent,” and “continuing” implies temporal extension, so is hard to reconcile with immediacy. This “radical re-interpretation” in essence removes the “imminent threat” criterion from the self-defense justification. The only precedent foregoing this criterion for self-defense is the “battered woman defense”, first used in R v Ahluwalia based on diminished responsibility or a mental state weakened by continuing abuse.43 Brennan specifies who constitutes significant threat: “an operational leader of al-Qaida or one of its associated force; an operative, in the midst of actually training; someone with unique operational skills that are being leveraged in a planned attack.” In Eye in the Sky, the mission is initially to capture Danford, consistent with us policy of reserving lethal force for when capture is impossible. As soon as the bomb-making is discovered, Powell considers the threat adequate for a mission upgrade to lethal force that she immediately requests. ppg outlines the process for authorizing a drone strike target. In Danford’s case, an operational plan identifying her as a high-value target would have been submitted by an agency that first determined her legality as a target. The plan would then have been submitted to National Security Staff for i­ nteragency review. The Staff submit their legal conclusion to the Deputies Committee for review by appropriate members of the Deputies and Principals Committee of the National Securities Council before the plan goes to the President for decision. The plan respects a target’s right to due process and takes time. A plan must also indicate how long it is in force, and any actual strike must meet “conditions precedent for any operation” that include “near certainty” that a lawful target is present and that non-combatants will not be harmed, that capture is not feasible, that the country’s government will not address the threat, and that there is no alternative. Danford is on the us East Africa Most Wanted List, so presumably a plan is in place on her.

41 42 43

Amnesty International (n 23). ppg (n 7) 11 and 17; Cf. Cole (n 4). R v Ahluwalia (1992) 4 aer 889.

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What of the specific conditions for the strike? There is certainty that a l­ awful target is present. Feasibility of capture is compromised by the location of the house in occupied territory, so Kenyan intervention will start a battle with many non-combatants caught in the crossfire. The girl is a non-combatant at risk, so meeting collateral damage risk assessment criteria becomes a potential solution, discussed below. However, what of Danford’s companions? Her husband and the American bomber are also on the us East Africa Most Wanted List, but no indication is provided that the British suicide-bomber is an authorized target. So what is his combatant status? Once the mission is upgraded, much of the film is spent debating the issue of the girl, but no mention is made of risk to him. Ironically, Danford is a much less imminent threat than the British bomber, but his threat cannot possibly be assessed under ppg in time to authorize his targeting. The film mirrors what must often be the case in actuality: foot-soldiers pose “imminent threat” with no time to authorize a strike under ppg, while authorized targets given due process pose a “significant” and “continuing” but not really “imminent” threat. Danford may have arranged the bombing, but she is not donning a jacket. This is the “paradox of imminent threat.” It reveals the poor fit between us appeal to self-defense and criteria in international law that would justify drone use. Article 51 cannot accommodate the paradox of imminent threat in the “war on terror”. Perhaps it should not – self-defense arguments have never been intended to justify acting on future threats. ppg states that adhering to laws of conflict “becomes particularly important when the purpose of military action extends beyond self-defense or the defense of one nation against an aggressor”. If this means initiating acts of war rather than responsive action, then it exceeds the scope of this paper. If, however, the claim expresses the limits of selfdefense arguments because of the kinds of issues raised above, then, given that the us objective in fighting terrorism is defense of America and Americans, retaining rather than going beyond self-defense would be more accurate and practical. There is another option. International law can be considered a living entity that can and should evolve. Traditional paradigms cannot easily accommodate defense against enemies extremely hard to distinguish from non-combatants that act in small groups much less detectable than uniformed units that represent, fight on behalf of, and answer to nation-states. International law is simply using a paradigm inadequate for the “war on terror”, leaving drones in a legal vacuum. This newly developing lacuna necessitates updated understanding of the nature of war in light of paradigms co-evolving with new technologies. unsc assessment of what warrants self-defense in contemporary contexts of

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international terrorism is needed, along with assessment of the legality of new weaponry in response. What is actually driving us drone warfare are the “significant threat” and “continuing threat” of terrorism, so assessment of these threats as criteria for self-defense justification and therefore lawfulness of lethal drone strikes would empower the un to hold the us to standards of transparency and accountability. Conversely, us failures in transparency and accountability as promised by the Obama administration may be symptomatic of the un’s helplessness and the futility of international law in the face of al-Qaeda, isis, Boko ­Haram, al-Shabaab, and similar groups that are non-traditional, non-state-based ­ ­enemies that openly reject laws of war. Significant and continuing threats and the drones’ coupling of rapid intelligence with lethal force provide a place to begin updating rules of war. The need was already identified in 2006 by British Defense Secretary John Reid who suggested an extension of self-defense by redefining “imminent” to include preparation for terrorist activity.44 Reid’s concern was the status of Guantanamo Bay (“Gitmo”) detainees who have no gciii protections unless prisoners of war. Obama’s attempts to close Gitmo failed. The current President intends to keep it open, “load it up with some bad dudes … bring back a hell of a lot worse than waterboarding, … torture works … they deserve it anyway, for what they’re doing to us.”45 Reid concluded his 2006 bbc interview by saying that his recommended changes are unlikely to happen because governments and human rights organizations see no need and are suspicious of the us and uk. Issues remain unresolved concerning combatant status in the “war on terror” that deny Gitmo detainees gciii protections while also precluding clear, functional, non-ambiguous drone policy. Accountability The paradox of imminent threat implicates those lowest in the chain of command as accountable for collateral damage in drone strikes. The Manual argues that just war principles apply to persons not weapons, so the obligation to reduce risk of civilian casualties falls to a person.46 To launch a drone, an image analyst must model collateral damage to generate an estimate, the 44 45

46

Paul Reynolds, “Q & A: Geneva rules and the ‘war on terror’” (2006) bbc News . Connie Bruck, “Why Obama Has Failed to Close Guantanamo” (2016) The New Yorker . Preston (n 9) Para 6.5.9.3.

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commanding officer must give the order, and a pilot must fire. All are “in the loop” insofar as the strike cannot proceed without their activity. The image analyst is “out of the loop” once the estimate is provided. Once command is given, the officer moves from “in the loop” to “on the loop,” i.e. the officer need do nothing further for the strike to happen, but retains capacity to cancel it. The pilot remains “in the loop” until the missile is fired, at which point it cannot be taken back and all are “out of the loop”. The obligation discussed in the Manual must fall to someone, and higher authorities can assign responsibility to these personnel. The officer is accountable for the legality of the strike because of giving the command, the image analyst is accountable for providing the officer with correct information, and the pilot is accountable because of firing the missile. A pilot who believes that risk of collateral damage is excessive can delay firing and request a new estimate. In Eye in the Sky, the situation changes after the mission is upgraded to kill because the girl enters the collateral damage area. The senior legal counsel of the us National Security Council, who intervenes in the discussion without being consulted, treats lethal force as indisputably the obvious course of action because three Most Wanted individuals are targeted, regardless of any harm to the girl. Powell is also enthusiastic to follow the kill authorization despite the changed circumstance. The pilot, however, is visibly moved, refuses to fire, and asserts his right to request a new estimate. The Manual makes people responsible for determinations “such as whether to fire the weapon”.47 The pilot may be upset because he does not want to kill the girl, but he also knows he may very well be held accountable for her death. The image analyst is also implicated. The probability of civilian mortality in the film cannot exceed 45% – far from the “near-certainty” stated in ppg – but the girl is in the 75% mortality zone. Effort is made to remove her. The Kenyan soldier, already nearby to operate the small drone that discovered the bombing, rushes at substantial risk to himself to buy the bread so she will leave. This plan is thwarted, and time presses as the bombers make ready. Powell requests a further estimate that still exceeds the threshold. She asks again, much to the analyst’s discomfort. She cannot order him to falsify results, but he knows he is being pushed to provide an estimate within legal parameters, which he eventually does. Powell seems immune to any ethical doubt or fear of repercussion, while the pilots weep for their role in the strike, and the analyst clearly dislikes being repeatedly put back in the loop where he is accountable for the estimate Powell wants him to fudge if not falsify. After the strike, she apologizes to him that there was no other option, and instructs him to file his report with a 45% 47

Preston (n 9) Para 6.5.9.3.

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collateral damage. He agrees, but looks extremely unhappy as the legal advisor looks on dubiously. It is not practically possible to know how much this scene mirrors reality. During the unsc negotiation of Resolution 2286 in 2016, the Malaysian representative brought up the us bombing of an Afghani hospital in 2015. The us representative offered condolences, and noted disciplining of over a dozen military personnel.48 The “tragic mistake” of attacking the hospital rather than a nearby Taliban compound was allegedly caused by insufficient briefing and visual target identification.49 Lack of transparency allows separation between those held accountable and actual responsibility. It is impossible to know if low-ranking personnel are having their career sacrificed in the case of an especially dubious or unlawful strike.

Just War and Moral Injury

Anderson warns the Obama administration that accepting human rights goals in international humanitarian law and using soft-law standards of organizations like the icrc to define “direct participation in hostilities” makes targeted drone use legally difficult if not impossible.50 Issues made more difficult by non-governmental organizations warrant open discussion, however, because such organizations watchdog ethics. Military leaders are responsible to wage just war, and humanitarian organizations provide indicators to balance military need against the demands of justice, even though they do not set policy or dictate action. Brennan argues in detail that us drone use is wise, subject to rigorous standards, and compliant with just war ethical principles. It is wise because drones have “surgical precision, the ability, with laser-like focus, to eliminate al-Quaida”. Also, they can access remote, treacherous terrain, avoid intrusive deployments in long, costly wars that inflame anti-American resentment and inspire the next generation of terrorists, and “dramatically reduce” or eliminate the danger to both us personnel and civilians. Ability to access difficult terrain 48

49

50

“Security Council Adopts Resolution 2286 (2016), Strongly Condemning Attacks against Medical Facilities, Personnel in Conflict Situations” SC/12347 (3 May 2016) . Elizabeth Chuck, “‘Tragic Mistake’: u.s. Misidentified msf Hospital Before Bombing It” nbc News (25 November 2015) . Anderson (n 13).

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is a tactical gain, and avoiding costs and consequences of deployment overseas is prudent, tactical and strategic. Boyle argues, however, that drones also foment anti-Americanism and radicalize people into extremism by terrorizing the population.51 The greatest advantage of drones is reduction in deaths and injuries, especially to civilians. However, civilian casualty numbers, addressed below as a question of proportion, are in dispute. Concerning rigorous standards and the process of review, Brennan summarizes a weak version of ppg. ppg specifies lack of any reasonable alternative to lethal force, while Brennan’s focuses only on the alternative of capture. ppg demands “near certainty” rather than Brennan’s “high confidence” concerning target identity and likelihood of collateral damage. The review process is thorough, but standards of rigor and factors like degree of threat are left indeterminate. The required operational plan is pre-authorized, but actual details of the strike involve conditions that require judgment on the spot, e.g. assessment of the host country’s ability and willingness to address the threat, feasibility of capture, lack of viable alternatives, and collateral damage estimates. The review process may be rigorous but, as discussed above concerning imminence and accountability, much on-the-spot decision-making is not in that process. Just War Principles The Manual notes that “inherently indiscriminate weapons” are generally prohibited.52 Brennan argues that drones enable discrimination because their intelligence-gathering capacity reduces collateral damage. Drones are precise, he says, as required by the principle of distinction, and their standards for identifying targets while avoiding civilian casualties actually exceed what international law requires on a typical battlefield. The principle of proportionality requires that the size of the assault is appropriate for the target. Many civilian but few terrorist deaths indicates using too much force, i.e. fails to meet the proportionality condition of the doctrine of double effect. This doctrine allows for collateral damage as an unintended side-effect and requires that it must be proportional to the intended effect. That is, some civilian harm is ethical under the doctrine of double effect. The principle of humanity, that unnecessary suffering should not be inflicted, is also respected if civilian deaths and injuries from drone strikes are, as Brennan says, “exceedingly rare”. These principles address minimizing civilian harm, but the principle justifying any civilian harm in the first place is the principle of necessity that requires a target to have “definite military value”. 51 52

Boyle (n 5). Preston (n 9) Para 6.4.1.

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Necessity O’Connell argues that what has no impact cannot be considered necessary, so studies showing that drone use is rarely effective against terrorism mean that us drone use breaches the principle of necessity.53 The Manual defines “necessity” broadly to include, for example, “effects on the morale, command and control, stamina, and cohesion of opposing forces.”54 “Necessity” seems here too broad, as it means that virtually any military gain warrants lethal force. The extreme capacity difference between the us military and the groups it fights creates the appearance of a “might makes right” approach not mitigated by the doctrine of double effect when necessity is so watered down. Moreover, “definite” value does not necessitate “significant” or “substantial” value. How much value attaches to how much harm? This is the utilitarian dilemma at stake in Eye in the Sky: “will you definitely take an innocent life in order to possibly prevent the loss of eighty lives? Would it make a difference if the cost were five innocent lives, or the saving only twenty?”55 Though necessity can be considered independently, necessity without proportion cannot be considered just in practice. Proportionality The principle of proportionality, as noted above, concerns how much military force is appropriate and how much civilian harm is justifiable under the doctrine of double effect. Comparison of drone warfare against other methods of waging war is challenging because nothing resembling a controlled trial is possible. Regardless, numbers in the “war on terror” are much less than the two million North Korean non-combatants reportedly killed by napalm during the Korean War,56 or the estimated killing in bombing raids of at least 55,000 North Vietnamese non-combatants during the Vietnam War.57 There is therefore reason to believe that drone use is ethically superior in relation to other ways of waging war, even if not ethical in absolute terms. O’Connell argues, contrary to Brennan’s “exceedingly rare”, that collateral damage is high in drone use: only twenty al-Qaeda or Taliban leaders were killed by October 2009 for every 750–1000 unintended targets.58 Bergen 53 54 55 56 57 58

O’Connell (n 18). Preston (n 9) 6.6.3.1. Poulou (n 10). Hugh Deane, The Korean War: 1945–1953 (China Books 1999) 149. Charles Hirschman, Samuel Preston and Vu Manh Loi, “Vietnamese Casualties During the American War” (1995) Population and Development Review 21 4, 783. O’Connell (n 18).

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estimates that only 2% of deaths in drone strikes since 2004 were high-ranking officials – 49 militant leaders in total – and that many of the remaining 98% were not involved in direct hostilities.59 Boyle provides a detailed overview of available data from local news media, the London-based Bureau of Investigative Journalism (bij) and the Washington-based New America Foundation (naf).60 In Pakistan, aggregated news reports indicate roughly 1800 to 3200 deaths from drone strikes between 2004 and 2012, averaging 5.6 to 9.5 deaths per strike, while the bij estimates up to 3300 deaths over 346 strikes in the same time period, averaging 7.4 to 9.6 deaths per strike. The naf classifies approximately 85% of those killed in strikes as militants, while the bij suggests that 18–26% are civilian, and perhaps as many as 1/3 in Somalia. The Obama administration began publishing data in 2016 when obliged by court-order in an American Civil Liberties Union lawsuit. Between 2009 and the end of 2015, us data shows 473 strikes killing roughly 2500 terrorists, and only 64–116 civilians deaths since 2008.61 Deaths are just as likely to be underestimated or under-reported by the us government as they are to be inflated by militant groups. When this data was released, the ppg was also declassified, and an executive order minimizing civilian casualties in all uses of force was given. Obama’s authorization of drone strikes subsequently decreased according to bij and naf reckonings. Increased transparency entails greater accountability. Distinction and “Signature Strikes” Anderson also warned that heeding international humanitarian law puts at risk the legal rationale for signature strategies.62 The principle of distinction is especially challenged by “signature strikes” that are based on intelligence identifying patterns of behavior that can generate false positives. Regular contact with a known or suspected combatant does not necessarily indicate combatant status any more than delivering mail, for example, indicates collusion. Boyle notes issues with specific kinds of activity and cites a “senior State Department official” who said that “when cia officials see ‘three guys doing jumping jacks’ they assume it must be a terrorist training camp.”63 Jon Harper,

59 60 61 62 63

Peter Bergen, “Drone is Obama’s Weapon of Choice” CNN.com (19 September 2012) . Boyle (n 4). Ackerman (n 28). Anderson (n 13). Boyle (n 5) 9.

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a reporter for a Japanese newspaper, asked Brennan about signature strikes during the post-lecture question period at the Wilson Center. Brennan’s answer was that “we only authorize a particular operation against a specific individual if we have a high degree of confidence that the individual being targeted is indeed the terrorist we are pursuing.” Brennan’s use of “if” limits his response to targeted strikes, thereby implicitly denying signature strikes. This answer moreover models the vetting process detailed a year later in ppg, but that process of nomination and vetting is supposed to be based on known terrorist identity rather than patterns of behavior that could be explained in other ways. Signature strikes appear based on “terrorist profiling” analogous to racial profiling in domestic law enforcement, the lawfulness and ethicality of which is also contentious because it forgoes just-cause requirement. Moreover, contrary to Brennan’s implicit denial of signature strikes, in that very year, Heller says that the majority of us drone attacks are signature strikes.64 He cites a Reuters report stating that of the 500 militants killed by drones between 2008 and 2010, only 8% were top-tier militants or mid-to-highlevel organizers whose identity could have been known prior to being killed. Given the Reuters report, it is crucial in assessing us drone use to know what proportion of strikes are targeted and what proportion signature. Yet Brennan’s reversion to targeted strikes when asked about signature strikes may not be denial of signature strikes so much as conflation of targeted strikes with signature strikes over exactly the point made above concerning Danford’s companions, i.e. disagreement about who counts as a terrorist. As Eye in the Sky shows, and as noted above concerning imminent threats, not everyone engaged in a terrorist act may already have been identified as a threat, but such activities indicate that someone is an imminent threat. The bombers are immediately taken as terrorists posing an imminent threat by everyone involved in the drone strike, but civil society or non-governmental organizations (csos/ngos) likely have no basis for seeing anyone as a combatant who has not been vetted under ppg and therefore will not subsequently be declared an authorized target of the strike. In fact, to declare them so would be to admit that the “rigorous standards and the process of review” Brennan appeals to and set down in ppg have not been followed. Of the four confirmed deaths in Eye in the Sky, Colonel Powell can readily report that 75% are terrorists; if Danford’s companions were not also Most Wanted, a cso or ngo might well record 75% non-combatant deaths because 64

Kevin Jon Heller, “‘One Hell of a Killing Machine’: Signature Strikes and International Law” (2013) Journal of International Criminal Justice 11 1 .

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Danford is the authorized target, and the others appear as potentially false positive ­signature strikes. That is, international human rights law and ppg call for due process rarely possible in medias res. Drone intelligence can identify someone immediately as a combatant in the “war on terror”, but only a small number of people have this information, and transparency would be a giveaway of lack of due process. So it is not surprising that death-toll accountings differ substantially. Parameters differ widely, but data can be standardized to some extent using broad strokes. The naf and bij data discussed above average at 2550 droneassociated deaths over eight years (2004–2012). This is remarkably close to the Obama administration’s claim of 2500 deaths in an over-lapping eight-year period (2009–2016), given the naf and bij cobbled data together from sources of varying reliability. Substantial disagreement emerges, however, concerning the proportion of combatants and non-combatants in the total. Again broadstroking to disaggregate civilians deaths, estimates range from 375 by the naf and 450–650 by the bij, to approximately 2440 by Bergen and O’Connell, against Obama’s 64–116.65 All agree that some are combatants and some not. Brennan’s blurring of targeted and signature strikes may reflect that the us has no basis in law to justify decisions about combatant status made in the moment without due process. “Signature strikes” therefore could very well be aimed at people guilty by more than association who clearly pose imminent threat but were never authorized. This interpretation of “signature strikes” can be played out in a “benefit of the doubt” argument. In 2003, a British Appeal Court said that Gitmo detainees were in a “legal black hole” for reasons discussed above.66 Active combatants in the “war on terror” and us military personnel making signature strikes likewise fall into this “black hole” in international law. Given the benefit of the doubt, the us is not breaching the principle of distinction if signature strikes can be understood in this way rather than as mere guilt by association. If the law were to catch up to the ethics, greater transparency would be possible concerning non-combatant deaths, which in turn would make it possible to hold the us accountable without naïve attribution of the “benefit of the doubt”. Just as necessity cannot be judged without assessing proportion, proportion cannot be judged without assessing distinction, i.e. that lawful combatants are killed, and humanity, i.e. that non-combatants are not unnecessarily killed.

65 66

O’Connell (n 18); Bergen (n 59); Boyle (n 5); Ackerman (n 28). Reynolds (n 44).

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Humanity and the “Easy Kill” Eye in the Sky presents the ethical challenge of drones’ utilitarian argument as an issue of propaganda. To explain reluctance to kill one person potentially to save many lives, the British Defense Minister says “If they kill eighty people, we win the propaganda war. If we kill one child, they do”. This displaces the utilitarian argument into the extremely ethically problematic realm of vested interest in which risking or saving lives is a public relations issue. The principle of humanity requires that people be treated as ends in themselves rather than means, i.e. as objects of moral concern that can suffer and who have rights. Brennan several times calls al Qaeda a “cancer throughout the world that must be cut out”, a “metastasized tumor that has spread to many places”, become “lethal and malignant”, and “killed many people”. A single use might be simply metaphor, but multiple uses constitute propagandist dehumanization of the enemy that fails to respect the principle of humanity. This principle has no “unless I think they are really nasty” clause. This kind of propaganda is not new with drone warfare, but not all past custom or practice is ethically defensible. Drones are argued to dehumanize the enemy in ways that make killing easy, both psychologically and politically. Concerning dropping psychological barriers to killing, Meyer argues that drone pilots undervalue human life because remoteness from their target protects them from risk as well as the horrors of war,67 while Ignatieff argues that presentation of war through a screen gives it the semblance of a video game.68 Holmqvist responds that the comparison of a drone pilot to a gamer is simplistic because “the abstracting that takes place is convoluted and paradoxical.”69 Video games are immersive, and drone pilots likewise experience this “reality-effect.” Pilots actually see more through the screen than they would in other kinds of distance warfare. In Eye in the Sky, the drone’s “eye” capacity is used to confirm target death, and both pilot and audience see impacts in graphic detail. Drones accordingly counter the historically increasing distance of soldiers from the brutal and messy work of war. The American pilots are both reduced to tears by the strike. Drone pilots suffer post-traumatic stress (ptsd) at the same or higher rates 67

68 69

Jane Meyer, “The Predator War – What Are the Risks of cia’s Covert Drone Program?” New Yorker (New York, 26 October 2009) . Michael Ignatieff, Virtual War: Kosovo and Beyond (Chatto and Windus, 2000) 23. Caroline Holmqvist, “Undoing War: War Ontologies and the Materiality of Drone Warfare” (2013) Millennium: Journal of International Studies 7 .

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than other soldiers.70 Rather than protecting pilots emotionally, drones put them at increased risk. Beyond the horror of the visuals, pilots go home nightly to families, not to a field camp where comrades can discuss their shared experience. Drones normalize this rupture of experience into disjunctive, incommensurable realities. When a British lawyer suggests to the General in the film that drone killing is too easy, he scathingly replies, “[n]ever tell a soldier that he does not know the cost of war.” Concerning political barriers, Brennan argues that drones avoid long, costly ground-campaigns. O’Connell cites a decade of us Presidents deploying military force unlikely to have been used before drones.71 This is the “efficiency argument” that Anderson refutes as incoherent. He argues that the in bello efficiency of drones is reduction of civilian casualties, but that does not make ad bellum decision-making any easier. Because the sides in a conflict have an incommensurable understanding of what counts as winning and losing, no optimal measure exists that would constitute “efficiency” in deciding to go to war.72 He subsequently argues further that the notion of ad bellum efficiency applies “the law and economy of social welfare maximization to a sphere of activity upon which it has little purchase.”73 That is, “easier” is not the same as “too easy.” Nonetheless, drones have multiple benefits over other ways of waging war. Absent from the literature is discussion of how drones enhance capacity for low-profile engagement with respect to the public at home. Jane Harmon suggests as much when opening Brennan’s briefing to questions from the floor. She says that she had always, “as a public official, danced around” discussions of drone use because she knew it had not been officially acknowledged by the us government. The Obama administration’s drone war on terror was much more discrete than, for example, the Gulf Wars. Drones may not make it easier to go to war, but they can make it easier to avoid a propaganda war at home.

70 71 72

73

Ian Graham, Ronald Shaw and Majed Akhter, “The Unbearable Humanness of Drone Warfare in fata, Pakistan” (2012) Antipode 44 4 1493. O’Connell (n 8). Kenneth Anderson, “Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare” (September 23, 2011) or . Kenneth Anderson, “Efficiency In Bello and Ad Bellum: Making the Use of Force Too Easy?” in Claire Finkelstein, Jens David Ohlin, and Andrew Altman, eds, Targeted Killings: Law and Morality in an Asymmetrical World (Oxford up 2012) 374–399. .

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Dehumanization and Moral Injury Distinct from psychological approaches that focus on ptsd, emerging research examines post-deployment dysfunction philosophically in terms of “moral injury.” Moral injury is the breakdown of integration into one’s world and community that is caused by witnessing a respected person in authority commit – or oneself committing – acts that are brutal, horrific, or immoral, and that presents with loss of values, cynicism, and existential crises of meaning and purpose.74 Though triggerable by a single event, it focuses on the futility and pointlessness of a moral system, or any, or even every moral system. It need not involve emotional response, and is different from guilt that expresses as, “I’m ashamed I did that” or “I wish I hadn’t done that”. Moral injury is articulated more by “what’s the point?” or “who cares? Nothing matters anyway”. Whether it disrupts a person’s ability to reason, to desire, or both are open questions. Regardless, it disrupts capacity for moral decision-making. Colonel Powell, ruthlessly fixated on killing Danford, demonstrates seemingly complete indifference to the bread-selling girl. Powell first appears on screen waking in bed, while outside it is still dark. She soon receives an email that an operative has been killed, and she registers regret by putting her hand to her mouth. When she reaches the mission command room and speaks to the General who sent the email, she calls the death upsetting and states that the family will need support. These are the only indications of emotion she exhibits, except frustration at delay of the strike on Danford. At the end of the film, she drives home, apparently undisturbed by what took place. She appears less than human in her indifference to the suffering she has caused and witnessed. The dead girl’s parents, however, remain human precisely through their suffering and loss. Their existence as moral objects is clear, as is the injustice to them in the loss of their daughter. For Powell, however, her existence as a moral subject appears to be obliterated by her military role in which she exhibits technical expertise. The question here is not whether drones lower 74

Max Bica, an American veteran of the Vietnam war, originally identified moral injury in Camillo C. Bica, “A Therapeutic Application of Philosophy: The Moral Causalities of War: Understanding the Experience” (1999) International Journal of Applied Philosophy 13 1, 81. Further discussion and clarification based on Bica’s analysis is provided in Brett T. Litz, Nathan Stein, Eileen Delaney, Leslie Lebowitz, William P. Nash, Caroline Silva and Shira Maguen, “Moral injury and moral repair in war veterans: A preliminary model and intervention strategy” (1999) Clinical Psychology Review 29 695, 705; K.D. Drescher, D.W. Foy, C. Kelly, A. Leshner, K. Schutz and B. Litz, “An exploration of the viability and usefulness of the construct of moral injury in war veterans” (2011) Traumatology, 17 1, 8; and Rita N. Brock and Gabriella Lettini, Soul Repair: Recovering from Moral Injury after War (Beacon Press 2012) 5.

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her barrier to killing, but whether she is still capable of moral judgment. If virtue requires the capacity to function as a moral subject, “the virtuous warrior” is a paradox. This may be an issue in any military context, but drone warfare puts into stark relief the question of the soldier returning home. The soldier at war retains the virtue of loyalty to comrades, but drone warfare displaces battlefield experience as “comrades-in-arms”. The irreconcilability of war and “home” plays out every day for the drone warrior by demanding a repeated, rapid shift between the incommensurable identities of the “soldier” and the “moral subject” that is definitive of a human being. The first tragedy of war is accordingly the soldier.

Conclusion

The “war-outside-war on terror” is a new kind of war waged against a different kind of enemy who is often not in uniform, not formally associated with or under command of a nation-state, and behaving and living like a revolutionary, but targeted on foreign soil. There is accordingly ambiguity concerning who constitutes an enemy combatant, in turn leading to radical discrepancy in collateral damage assessments. Self-defense arguments are based on “imminent threat” in international law that is inadequate to justify the targeting of s­ ignificant, continuing threats. In attempt to wage a “war on terror” that is legal in domestic if not international law, and as ethically defensible as possible concerning harm to non-combatants, the Obama administration established a process that provides due process in identifying targets. Yet the us must also make strike decisions in medias res. The failure of international law to evolve with a new kind of enemy, fought with innovative weaponry in a novel war paradigm, generates a lacuna in accountability into which those closest to the fight can fall. Appealing to just war doctrine is difficult in drone warfare as principles of necessity, proportion, and humanity depend on the issue of distinction, which is argued to be the primary benefit of drone use but is virtually impossible to assess. Radical disagreement identifying combatants is irresolvable when operational plans and relevant information on targeting are classified. Precisely because drone warfare benefits military personnel by keeping them at home out of harm’s way, it plays a unique role in moral injury by disrupting the human capacity for moral subjectivity and fragmenting personhood across incommensurable realities. The siege of Troy ended traditional Greek warfare because honor challenges of hero-warriors were displaced by stealth and subterfuge. The crucial moment of change happens before the Iliad opens, when Odysseus and Diomedes enter

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Troy in disguise and steal the Palladium, a protective statue whose loss allows the subsequent trick of the Trojan horse to succeed. Troy fell to targeted stealth based on covert intelligence, not to the manly (which is what “virtue” means in its etymology from the Latin vir, man) hero-warrior of tradition. In history’s circle, at the core of legal and ethical issues in drone warfare, lurk Homer’s questions of ontology: What now is “war”? Who now has the “warrior” become?

Chapter 13

Targeted Killing of Terrorists in War and Peace: An Analysis Based on the Jus Ad Bellum/ Jus in Bello (In)dependence Thesis Michaël Dewyn Since the beginning of the 21st century, Western states have been confronted with terrorist threats. It began with the Twin Towers attacks in the United States on 9/11. Recently, the amount of terrorist attacks has increased, especially by the terrorist organisation the Islamic State (is). It is often difficult to track terrorists coming from the frontlines of Syria and Iraq, for example, they can hide by intermingling with refugees.1 On the other hand, home-grown citizens get radicalised, by internet or by local recruiters. As a consequence, some of them become so extreme that they try to carry out a terrorist attack. Western countries also try to stop the terrorist threat with armed drones in countries abroad, like Iraq, Syria, Pakistan, Afghanistan, Yemen or Somalia.2 Because there is no moral consensus on why and when terrorists should be killed or targeted, this article tries to answer this research question. To answer this research question, first, the viewpoints of Michael Walzer and Jeff McMahan about how soldiers or combatants should be treated during wartime will be discussed. The jus ad bellum/ jus in bello (in)dependence thesis contains two opposing theories. Walzer sees a combatant as a part of a collective that is fighting another collective. Moreover, every combatant, no matter whether the cause of his war is just or unjust, should be treated as morally equal and should have the same rights and duties as his opponent. On the other hand, revisionists see armies as individual combatants, each with a different moral responsibility. According to McMahan, good or just combatants should get more rights than unjust combatants and they should thus be treated as morally unequal. The last part of this chapter is dedicated to the 1 Jessica Ware, “Isis fighters posing as refugees being smuggled to Europe on migrant boats, report says” Independent (London, 17 May 2017) . 2 Cora Currier, “Everything we know so far about drone strikes” ProPublica (New York, 11 January 2013) .

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_014

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question of whether lethal violence can be used against imminent and/or nonimminent threats. How terrorists should be morally treated is discussed in the second part of the article.3 First, the compatibility between the principles of killing somebody in wartime and the elements of the definition of targeted killing will be investigated. Secondly, the question will be answered of whether the targeted killing of terrorists during wartime should be morally allowed. We will focus on the differences between combatants and terrorists and apply the same criteria of the jus ad bellum/ jus in bello (in)dependence thesis to terrorists. ­Terrorism also appears during peacetime. Again, first, the compatibility between the principles of killing somebody during peacetime and the elements of the definition of targeted killing will be investigated. Finally, the question will be answered as to whether the targeted killing of a terrorist during peacetime should be morally allowed, and whether these terrorists may also be killed as members of a terrorist organisation even when posing a non-imminent threat. Or: should strict peacetime principles always be applied, even in the confrontation with terrorists?

The Jus Ad Bellum/ Jus in Bello (In)dependence Thesis



The Collectivist Interpretation and the Moral Equality of Combatants Liability to Attack Based on Membership of the Belligerent State The collectivist interpretation is one of the existing explanations for the use of deadly violence during wartime. The interpretation states that a soldier may be killed because of the threat that his country poses. It is the states that decided to fight each other and the soldiers are nothing more than “poor sods”, simply instruments, who have the duty of fighting for their country.4 So, in contrast to the allowed form of self-defence during peacetime, it is not the physically imminent threat that counts towards liability to be killed during wartime, but it is a liability to be killed based on a status, based on a membership of a belligerent state that is a threat to another state. Military necessity, which is everything that contributes to the military victory, makes it so that these members of the

3 The concepts of “targeted killing” and “terrorism” are described in greater detail in the ­beginning of the second part of this article. 4 Michael Walzer, Just and Unjust Wars: a moral argument with historical illustrations (1st edn., Basic Books 1977) 36.

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belligerent state can be killed all the time, regardless of the soldiers’ guilt or moral responsibility.5 Walzer uncouples jus in bello, the principles about how soldiers should fight a war, from jus ad bellum, the rules about when it is just to start a war.6 He argues that all combatants, regardless of whether their country started the war, justly or unjustly, should be treated as morally equal, that they should be given the same rights and duties, once the hostilities have started.78 Only when the soldier is hors de combat, when he is wounded, has surrendered, or when he has become a prisoner of war, can he no longer be killed, since the potential to become a threat that can kill its opponent disappears, even though their membership remains.9 Because they are not members of the threatening state like soldiers are, innocent civilians in this case cannot be killed during wartime either. Walzer believes in a clear delineation between soldiers and civilians. However, sometimes, civilians contribute to the hostilities, thereby relinquishing their right to not be attacked. On the other hand, it is also possible for combatants to participate little in the war effort, or they can be not motivated at all, or they are sometimes relaxing like sleeping or taking a bath. However, because of their status, they can still be killed at all these moments.10 Walzer gives the example of a bathing soldier: he is not posing a threat now but he probably will become one again very soon. He speaks of a supererogatory act when not killing that person; you may kill him but your humanity convinces you to not do it.11 Finally, the just war theory makes an exception for war crimes: war criminals should be treated individually, whether just or unjust combatants, so that they can get a deserved punishment.12

The Reasons behind the Collectivist Interpretation and the Moral Equality of Combatants Walzer believes that the analogy between law enforcement and waging war is too unsound to simply apply national peace principles to warfare. Imagine the case of a bank robber being stopped by a guard in a bank. The bank robber

5 Walzer, Just and Unjust Wars (n 4) 131. 6 This is also called the independent position between jus ad bellum and jus in bello. Walzer (n. 4) 21. 7 This is also called the symmetry position. 8 Walzer (n. 4) 37, 38. 9 Walzer (n. 4) 138. 10 Walzer (n. 4) 138. 11 Walzer (n. 4) 142, 143. 12 Walzer (n. 4) 128.

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is obviously the unjust threat because he is robbing the bank, the guard is the just threat because he is trying to maintain order and protect the clients of the bank. Intuitively, we believe that the guard can stop the bank robber but not that the bank robber can use self-defence against the guard. Walzer takes distance from this individual approach and moral inequality on a war level and concludes, because of some reasons which will be explained, that all soldiers, regardless of the character of their cause, should be treated equally and collectively in a war. One reason that leads to an unsound analogy concerns enforcement. ­According to Walzer, bank robbers are generally not forced to rob a bank.1314 In contrast, soldiers are often conscripts that are forced to go to war, like in the two world wars. If everybody is forced then all soldiers of both parties should be treated the same way. This argues for the collectivist interpretation and the moral equality of combatants. The question is to what extent there is still a system of conscription in a state. Is there tendency to volunteer instead of conscription? A second reason for the unsound analogy is epistemological in nature. The bank robbers can generally be clearly distinguished as “motivated” persons, which pleads for morally unequal treatment.15 As they have certain specific rights during peacetime, they will therefore still be approached individualistically. In contrast, it is too difficult to distinguish between soldiers who are volunteers and those who are conscripts, unless they are distinguished in separate detachments, but that is not always the case. You cannot see the difference, they all wear the same uniform. Besides, a volunteer can become demotivated – or was already unmotivated because, for example, he “volunteered” due to money problems – and a conscript can become motivated. This first epistemological problem argues, again, for the collectivist interpretation and the moral equality of soldiers. A second epistemological problem is that it is not always easy to determine in a war who possesses the just cause and who the unjust. Often, this can be determined only many years later. In the conflict in Syria, for example, many actors are present such as Russia, Iran, the Syrian army, the rebels and is, all with

13 14 15

A bank robber can, in theory, also be forced to rob a bank, for example because his family is in danger, or because of extreme poverty. Walzer (n. 4) 128. Because it concerns only a few persons, the innocent bystanders will designate them if possible. Besides, the bank robbers can be recognized because of their behavior: they will, for example, be aggressive or try to escape.

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different purposes and motivations.16 Walzer sees that as a reason for treating them as being morally equal. In contrast, a bank robber has a clear unjust purpose and will mostly be found out, with or without an investigation.17 A third epistemological problem is that the combatants themselves, even if it is clear who possesses a just and who has an unjust cause, are not always aware of the real nature of the cause they are fighting for. There could be manipulation by the government, or the government might genuinely be convinced of the justness of their cause, even if the rest of the world considers it unjust. Besides, a person can join the army while a state is fighting for a just cause, and the cause later turns out to be unjust. It is not always easy to leave the army in a situation such as this. This pleads again for collectivism and moral equality. In contrast, a bank robber generally knows what he is going to do from the beginning and the nature will remain unjust. Suppose that the epistemological problems would be resolved, suppose that you find out objectively who is the just and the unjust party, suppose that you know who are the more and the less morally responsible soldiers and that they also know which cause they are fighting for (and it does not change), then the soldiers are still all mixed.18 This is the third cause for the unsound analogy. It is very difficult to target the motivated, more morally responsible person without also targeting the demotivated, less morally responsible one. Generally, the bank robbers are all equally morally responsible, so it is no problem that they are mixed. Because there is no point in individualising soldiers since they are mixed, this pleads again for collectivism.

The Individualistic Interpretation and the Moral Inequality of Combatants Liability to Attack Based on Moral Responsibility for the Unjust Threat Another interpretation that explains the use of deadly violence during wartime is the individualistic interpretation. McMahan thinks, in contrast to ­Walzer, that whether the state fights for a just or an unjust cause should have consequences for jus in bello. He couples jus in bello to jus ad bellum.19 He thinks that the different parties in a war should be treated as morally unequal; they should 16 17 18 19

Ghadi Sari, “Syria conflict: who are the groups fighting Assad?” bbc News (London, 11 November 2015) . Although the motivation can be noble, like helping the family from poverty, it remains criminal behavior. Michael Walzer, “Response to McMahan’s paper” (2006) 34(1) Philosophia 44. This is also called the dependant position between jus ad bellum and jus in bello.

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possess unequal rights and duties, based on the just or unjust nature of the cause.20 The just party should retain many rights, while the unjust party should have none.21 For the individualistic interpretation, it is not the threat based on the fact that you are a member of a state that attacks another state that makes one liable to be killed, but whether you are morally responsible for contributing to the unjust threat or not.22 This moral responsibility can augment or diminish in function of some parameters: does the person occupy an important function? Is he motivated of demotivated? Is he a volunteer or conscripted? Continuing with the discrimination principle, McMahan thinks that the collectivist interpretation is too limited: a military is attackable and a civilian not, with some exceptions according to the degree of contribution to the hostilities. McMahan does not separate the two; he discriminates on moral responsibility for those who contribute to the military victory: soldiers and civilians who bear much moral responsibility are more liable to attack.23 A morally responsible political leader, who is neither a physical threat himself nor a member of the military, that leads non-responsible combatants, is morally responsible for posing the unjust threat and so is liable to be killed. Sometimes, civilians are even more morally responsible than soldiers.24 Moreover, the wounded, people who have surrendered, and prisoners of war, remain morally responsible and therefore liable to attack according to McMahan. As opposed to Walzer, McMahan thinks that doctors and religious personnel of the unjust party can also be fair targets. “If the medic intends to return the unjust combatant to battle, he may be to some extent responsible, and therefore liable for the unjust combatant’s subsequent action.”25 However, McMahan poses that civilians mostly do not bear enough moral responsibility to be attacked. They should rather be exposed to other coercive measures like economic sanctions.26 An unjust combatant can also be excused, although he contributes to the military victory; he can be partly acquitted of moral responsibility in the case of non-guilty ignorance – for example manipulation by the government -, ­enforcement, or a less than fully-developed moral responsibility – for example because it concerns a child.27 However, this does not necessarily mean that 20 This is also called the asymmetry position. 21 Jeff McMahan, “The ethics of killing in war” (2004) 114(4) Ethics 694. 22 Jeff McMahan, Killing in war (1st edn., Oxford University Press 2009) 34–36. 23 McMahan, “The ethics of killing in war” (n. 21) 718. 24 McMahan, “The ethics of killing in war” (n 21) 725, 726. 25 McMahan, “The ethics of killing in war” (n 21) 711, 712 . 26 McMahan, “The ethics of killing in war” (n 21) 728. 27 McMahan, Killing in war (n 22) 115–122.

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they are immune to military actions. Moreover, people who are completely devoid of moral responsibility, although they pose a threat, are not liable to attack according to McMahan.28 Examples are a person with a device in his head controlled by another person or people who have been drugged.29

The Reasons behind the Individualistic Approach and the Moral Inequality of Combatants McMahan thinks, in contrast to Walzer, that the analogy between law ­enforcement – the bank robber-guard case -, and war, is pure, so that law enforcement principles should be maintained as far as possible during war: everybody should be treated individualistically and the different parties should be treated according to their just or unjust cause, so morally unequal. McMahan does not represent soldiers as “poor sods”, as people forced into being an instrument of the state. People, on the contrary, should make an effort to find out whether their state is fighting for a just or an unjust cause, and refuse to join the army when it concerns an unjust cause.30 This argues for individualism and moral inequality. The moral inequality, giving the unjust party fewer rights, should encourage people not to join the army if its cause is unjust.31 An important question here, besides the question of whether conscription still exists in many countries, is whether it is that simple to refuse conscription in many countries. Walzer identified some epistemological differences between law enforcement and waging war. One cannot see the difference in war between the morally responsible and the less morally responsible soldiers. McMahan recognizes that it is sometimes hard to find out, but to overcome the first epistemological problem of who is morally responsible and who is not, McMahan distinguishes between facts and reasonable presumptions, with a maximum effort to find out the exact information.32 He gives the example of the Gulf War to explain this. There, you could clearly distinguish the conscripts and the Republican Guard, the elite. You could reasonably presume that the second group was more morally responsible than the former. If you are still wrong after this effort, then this is still morally wrong, but at least then you can be excused.33 Based on these suppositions and this distinction, although demotivated v­ olunteers and 28 McMahan, “The ethics of killing in war” (n 21) 721. 29 McMahan, Killing in war (n22) 167–169. 30 McMahan, “The ethics of killing in war” (n. 21) 733. 31 McMahan, “The ethics of killing in war” (n. 21) 733. 32 McMahan, “The ethics of killing in war” (n. 21) 724. 33 Jeff McMahan, “Killing in war: A reply to Walzer” (2006) 34(1) Philosophia 48.

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­ otivated conscripts also exist, you can take appropriate action. This pleads m again for individualism, at least on a “group” level, and moral inequality. McMahan has no convincing solution for the other epistemological problems. The third epistemological problem concerned the soldiers not always knowing the nature of their cause. McMahan, by contrast, believes that, once in the army and just like when deciding whether to join the army or not, soldiers should keep doing their best to find out the truth about the cause of the state.34 Moral inequality should encourage people not to stay in the army if the cause is unjust. However, as already stated, somebody can join the army in the period that a state fights for a just cause, while later they end up fighting for an unjust cause. The nature can change. Moreover, it is not always easy to leave the army. A third problem was that, even if you know who is morally responsible and who is being forced, the less and more morally responsible soldiers are in any case mixed, whereby it is difficult to hit the one without the other. Again, ­McMahan responds by saying that individualism should not always be effectuated on an individual level and with 100% certainty – see the Gulf war ­example. What is important is that the maximum effort has been made to distinguish moral from less moral soldiers, also when attacking them. When May Deadly Violence be Used during Wartime? Walzer’s first principle of the war convention, which includes principles for conducting warfare, states that during wartime, soldiers and in some exceptional cases civilians, once the hostilities have started, can be killed at any time, no matter whether the threat is imminent or non-imminent.35 Revisionists like McMahan agree with that. The reason why non-imminent threats may be killed is military necessity. During peacetime, only defence against a physical imminent threat is allowed. During wartime, necessity counts also on another level: it concerns all contributions to the military victory. A soldier might not contribute today but may contribute tomorrow and he will probably contribute again before victory is achieved. When every non-imminent threat can escape, the next day he might attack you. According to McMahan, a person is morally responsible while contributing but also after contributing; he will probably contribute again later. The bank robber, on the other hand, will not rob banks all the time. He will do anything to escape with his money, and to stay under police radar, at least for a while.

34 McMahan, Killing in war (n. 22) 66. 35 Walzer (n. 4) 138.

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Targeted Killings against Terrorists

Targeted Killings against Terrorists during Wartime Should Targeted Killing be Morally Allowed during Wartime? Targeted killing can be defined as the premeditated killing of (a) person(s), based on identity or behaviour, for a public purpose.36 Familiar examples are the targeted killing of the Al-Qaeda terrorist leader Osama bin Laden in 2011, or, since the beginning of the twenty-first century, targeted drone-attacks against alleged terrorists. The actor and the target of a targeted killing can be, since it is not specifically determined in the definition, a state or a non-state actor, and even a private person. The motivation could be revenge or defence, although this article only focuses on defence. The threat of the person could be imminent or non-imminent. The context could be peacetime or wartime. Nothing is said about the weapon carrying out the targeted killing: it could be an armed drone, but also a gun or a bomb. Because in a war, military necessity is the criterion that allows killing soldiers throughout the whole war, more is morally allowed than in a peace context, also regarding targeted killing. If there is a possibility of preparing your action because you can kill the whole time, then the action can surely be premeditated; there will be time to select the target and choose the right moment in the case of non-imminent threats. War is a public affair, so every killing from military necessity is also a public killing. So, there are no compatibility problems. However, it might be interesting to ask whether targeted killings are useful during wartime, and consequently, whether this effort should be made. Indeed, warfare is already very complex, bearing in mind all the epistemological causes we have discussed before. We concluded in the previous part that soldiers should be treated collectivistically. However, in the case of important persons with important functions, the effort could be indeed useful. It is not forbidden for the just war theory, collectivism is only the most realistic moral treatment of soldiers. In contrast, for the individualistic interpretation, targeted killing of combatants seems the perfect method, because then only the persons with enough moral responsibility would be killed. 36

For more definitions of targeted killing, see: Nils Melzer, Targeted Killing in International Law (1st edn., Oxford University Press 2008) 3. Claire Finkelstein, Jens David Ohlin, Andrew Altman, Targeted killings: law and morality in an asymmetrical world (1st edn., Oxford University Press 2012). Thomas B. Hunter, “Targeted killing: Self-defense, preemption, and the War on Terrorism” (2009) 2(2) Journal of Strategic Security 3.

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Targeted Killings against Terrorists during Wartime



Collectivistically and Morally Equal or Individualistically and Morally Unequal? Many definitions of terrorism exist. It is important to us that the terrorists are acting for a public purpose and that the method used is to kill as many as ­innocent civilians as possible, in order to create fear.37 A first cause to conclude that the analogy between war and law enforcement is unsound was, a­ ccording  to Walzer, that soldiers are forced by their state. In contrast, ­McMahan thinks that people should refuse going into the army or conscription after finding out that the cause of their state is unjust. In regions where governments have lost control over their country, terrorism can be embedded everywhere in the society. “Safe havens are ungoverned, under-governed, or illgoverned areas of a country where terrorists… are able to organize, plan, raise funds, communicate, recruit, train, and operate in relative security because of inadequate governance capacity, political will, or both.”38 It has become a “way of life” in certain “failed” regions, where there is a power vacuum.39 On the other hand, sometimes, civilians are forced to carry out terrorist activities or at least to help the terrorists.40 Depending on the concrete situation, this can plead for the collectivist or individualistic interpretation. A second reason is epistemological of nature. One argument Walzer suggests for the choice of the collectivist approach is what we called the first epistemological problem. It is difficult to distinguish between soldiers in a war. Moreover, terrorists wear no uniform and therefore no grades, and they often intermingle on purpose with civilians, making it extremely difficult to distinguish between the two, let alone to judge the terrorists individually. Even with

37

38 39 40

There do exist also more moderate forms of terrorism. See: Michael Walzer, Just and Unjust Wars: a moral argument with historical illustrations (1st edn., Basic Books 1977) 198–201. Theresa Reinold, “State weakness, irregular warfare, and the right to self-defense post-9/11” (2011) 105(2) American Journal of International Law 8. Ali Khedery, “How Isis came to be” The Guardian (London, 22 August 2014) . Lucy Pasha-Robinson, “Isis: 2,000 fighters using Raqqa’s civilians as human shields as US-led coalition makes significant gains in Syria” Independent ( London, 5 August 2017) .

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modern technologies like surveillance drones, it is difficult to get complete and reliable intelligence.41 This also argues for collectivism. The second epistemological problem was the difficulty to ascertain who possesses the just cause and who the unjust. This can also be the case for terrorists if you define terrorism not necessarily as an organisation fighting for an unjust cause. However, an important difference is that terrorists clearly use, per definition, unjust methods. This argues for the moral inequality, knowing that their opponents are the opponents of terrorism that normally use just methods. The third epistemological problem concerned the knowledge of the combatants about their cause. Indeed, the terrorist leaders can manipulate the truth for others regarding the cause, but we may suppose that every member at least knows that the organisation uses unjust methods. After all, an organisation like is likes to show its terrible methods to the whole world as its purpose is to create as much fear as possible.42 It seems unlikely then that the members of the organisation themselves are not aware of it. It might be that there are some people more morally responsible than others, as in every organisation, but they all at least bear a minimum moral responsibility because of this knowledge. This argues for moral inequality. Even when the terrorists are forced to carry out these acts, they remain liable to be killed, because they let themselves be forced. Or, as Walzer states about soldiers: “soldiers are not, however, entirely without volition.”43 Because all the terrorists bear a minimum moral responsibility – they all know about the unjust methods – this pleads for treating them collectivistically. As a consequence, collectivism and moral inequality should be applied to terrorists, which is a mix between Walzer’s and McMahan’s viewpoints. The question, however, is in what way they should be treated collectivistically. Are they sufficiently liable to attack or is this minimum moral responsibility insufficient for that, so that they are only 41

42 43

Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian (London, 24 November 2014) . See also: “us lacks intelligence to continue waging indiscriminate drone warfare in Yemen” rt (30 January 2015) . Matt Schiavenza, “Drones and the Myth of Precision Civilian casualties are inevitable, and the u.s. appears willing to accept them.” The Atlantic (Washington, 24 April 2015). . Imran Awan, “Cyber-Extremism: Isis and the power of social media” (2017) 54: 138 Springer us . Walzer (n. 4) 40.

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liable to, for example, economic sanctions? We are inclined to state that this minimum moral responsibility makes the terrorists liable to be killed, whether it concerns the suicide attacker or a simple planner. After all, functions can change: for example, the planner can become a suicide attacker in the future. The reason for the liability to be killed is the high threat from terrorism. If soldiers can be killed all the time because of military necessity, then it would be hypocritical to say that terrorists could not be killed all the time, knowing that they violate every possible law by targeting civilians. If this sounds shocking, then it might be necessary to revaluate military necessity and ask ourselves whether killing enemy soldiers all the time should be morally allowed. The third difference was about the mix of more and less morally responsible people. This is also the case for terrorism, which is another element with which to plead for collectivism. This is not a problem since we just concluded that all terrorists bear a minimum sufficient moral responsibility that makes them liable to be killed. It is also true that an organisation can become terroristic and that it is difficult to leave it. Originally, an organisation is often not extreme in its use of violence, and then uses worse methods every time because it sees no other options to achieve its political aim. This element also argues for the collectivist interpretation. When Can Deadly Violence against Terrorists be Used in War? What is not decided yet is whether the threat must be imminent as in selfdefence, or whether killing a non-imminent terrorist should be allowed, like combatants in war. Terrorists can be compared to combatants; they too will continue planning and carrying out attacks until their victory is achieved. That is why we think that during wartime, non-imminent terroristic threats can also be killed all the time.

Should Targeted Killings against Terrorists during Wartime be Morally Allowed? We have concluded that during wartime, terrorists may be approached collectivistically and morally unequally, and they may also be killed when not posing an imminent threat. Again, just as with the targeted killing of combatants during wartime, there is no incompatibility between these principles and the elements of the definition of targeted killing. However, the same question should be asked whether it is useful to know more about the terrorist than the fact that he is a member of a terrorist organization. After all, it is already often very difficult to distinguish terrorists from civilians; it is often based on behaviour, even though an effort should be made to identify terrorists by their name. For sure, identification might be interesting on a more strategic level where it is important which leaders are already eliminated.

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Targeted Killings against Terrorists during Peacetime Should Targeted Killing be Morally Allowed during Peacetime? During peacetime, the motivation to kill somebody must be self-defence or defence of a third party against a physical, unjust threat, meeting the three conditions of necessity, imminence and proportionality. The targeted killing must be necessary: alternatives to killing must be considered first. This is possible; a government can analyse whether options other than killing were available, and may finally have no other choice because capture was impossible. Besides, the killing must be a proportional reaction to the unjust threat; the fact that killing is the only reaction means that the unjust threat must be of certain gravity to a central right. So, many self-defence actions can be targeted killings, but not every targeted killing is a just self-defence action. Premeditated killing can take place in a fraction of a second, so there is no problem in using it against imminent threats. Besides, in a situation of selfdefence, there is often a gradation; the moment of imminence normally occurs gradually, and until that moment the situation can be considered second by second. In a case of targeted killing, the person has to be identified or targeted based on behaviour. This is also the case in a situation of self-defence: the reaction is always against an identified person, at least on the level of behaviour. Besides this, an act of self-defence can be compatible with the other conditions of targeted killing: it can be an act for a public purpose, carried out by a public or a private actor. An example of a justified targeted killing during peacetime is a bank robber holding hostages and threatening to kill one of them. Another hostage reacts and finds a moment to surprise the bank robber and kills him. The civilian has considered his action, it is for a public purpose – he has no personal motivation to kill the bank robber or to save the threatened person -, he killed the bank robber because of his behaviour, he reacted proportionally, there were no alternatives, and the threat was imminent. Targeted Killings against Terrorists during Peacetime Because of the terrorist threat after the attacks in Paris in 2015 and Brussels/ Zaventem in 2016, a state of emergency was put into place that limited certain rights of civilians, such as the right to privacy. Human rights organisations also identified human violations during house searches.44 There is thus a tendency to weaken some principles. But what about the right to life of the terrorist? 44

Amnesty International and Human Rights Watch have concluded that the state of emergency in France was accompanied by human rights abuses. The two human rights o­ rganizations declared, for instance, that the French government used excessive violence during house searches in connection with the Paris Attacks. Pauljan Truyens,

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It would be unusual if a terrorist who travelled from a war zone in Syria to Belgium were suddenly given more rights, while his objective remained unchanged, namely contributing to terrorism by planning or carrying out an attack on innocent civilians. The minimum sufficient moral responsibility is the same, as he knows what he is doing. However, he is far away from the safe havens where terrorists hide, where they organise and train and are together with many, in places where no government intervenes.45 What does the theory of the just war say about combatants removed far away from the battlefield? At that moment, a combatant does not contribute to the military victory anymore, for example when he goes on vacation. Nobody at that moment expects him to make this contribution. Suppose he sees a person of the enemy state, nobody will expect him to kill that person. Once returned to the battlefield, he once again becomes a threat and so is liable to be killed.46 Decisive thus is his contribution to the hostilities. On the contrary, terrorism is not just a function or a job, it is an ideology and often more inherent to a person because of indoctrination. A terrorist might not “work” all the time, but his mind is never on vacation. This is a crucial difference with bank robbers whose objective is to steal money at one specific moment and not to kill innocent civilians arbitrarily all the time. The difference between war and a country at peace is that here are far less terrorists than there, where they are hosted without government intervention. As a consequence, there are fewer people to be tracked and followed by the intelligence services. Here, they do not surround themselves with human shields, they walk alone – because amongst other things there are no drones that can surprise them, and they have to stay low-profile, otherwise it would make them suspect. Here, it seems more realistic to arrest a terrorist when he is alone, being a non-imminent threat.

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­“Noodtoestand in Frankrijk leidt tot schending van de mensenrechten” De Redactie (Brussels, 4 February 2016) . Human Rights Watch, “Terrorism / Counterterrorism” . Giselle Nath, “Europa trapt in de val die terroristen hebben gezet” De Standaard (GrootBijgaarden, 18 January 2017) . Dean Nelson, “Barack Obama warns Pakistan: shut down terrorist safe havens” The T ­ elegraph (London, 23 January 2015) . Tesón in Claire Finkelstein, Jens David Ohlin, Andrew Altman, Targeted killings: law and morality in an asymmetrical world (1th edn, Oxford University Press 2012) 413.

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However, not every terrorist can be arrested preventively in an isolated place. Not everyone who comes to our countries is tracked or identified. Moreover, it is impossible to follow all radicalised people.47 Imagine that a terrorist succeeds in getting into an airport, surrounded by travellers.48 Suppose that, in theory, a smart camera49 could recognise the person with 100% certainty as a terrorist. Suppose that government personnel at the place were warned by the camera, that they could see the record of the person50 and conclude that he is a dangerous man potentially carrying out terrorist attacks. However, it is not certain that the person is an actual imminent threat at the moment.51 He might just be a traveller, using the airport to go from one place to another. Trying to apprehend him might trigger him to blow himself up among the innocent civilians. The past records of the person could then be the moral allowance to shoot him before warning him, although there is no certainty that he is an imminent threat at that moment – he is not even behaving suspect. This extension of self-defence against people identified as a member of a terrorist organisation without knowing for sure that they pose a threat could be accompanied by warnings in the media: if terrorists do not surrender and go to public places, they can be “shot dead without warning”. The terrorist in this case is approached morally unequal and collectivistically, although only when certain conditions are fulfilled to override the strict peace principles. McMahan’s viewpoint on killing a non-imminent terroristic threat is that it should be possible in case the person is morally responsible for an augmentation of the objective probability that innocent people will die – whether it concerns planning, or preparing to commit or contribute to an act of terrorism. However, killing the terrorist must be the best means of averting the threat he poses – both because of the probability of success and because of the expected effects that other options would have on innocent people, including innocent bystanders and anti-terrorist agents.52 On the other hand, for Daniel R. Brunstetter, the 47

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49 50 51 52

“Europol warns of thousands of jihadists in Europe”, Sigmalive (Nicosia, 27 July 2017) . It is, in theory, possible with modern technologies to prevent terrorists from entering airports, for example with passport controls or iris scans. However, it is impossible to forbid every activity involving many people in public places. Security personnel are not capable of recognizing every terrorist from a list. However, terrorists without a record stay undetected with this method. You are only sure that he is not an imminent threat when you are certain that he is wearing nothing under his clothes. And still, he could attack people with his fists. McMahan in Claire Finkelstein, Jens David Ohlin, Andrew Altman, Targeted killings: law and morality in an asymmetrical world (1th edn, Oxford University Press 2012) 141.

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terrorist threat has to be imminent, and alternatives should not exist. “There needs to be credible evidence that something bad that will kill a lot of innocent people is really about to happen, not just a hunch or a suspicion”53 Philip Heymann and Juliette Kayyem also believe that killing a terrorist should only be allowed when confronted with an imminent threat: killing a terrorist is justified only when “it is necessary to prevent a greater, imminent harm, or in defense against a reasonably imminent threat to the lives of the targets of the planned terrorist attack.”54 However, suppose that threats of which we are not sure that they are imminent can be killed during peacetime, but who one knows with certainty are member of a terrorist organisation, then everybody could kill a person and use as a motivation that he recognised him as a terrorist, saying that he was sure of it. It would be difficult to ascertain whether the person is speaking the truth. This opens the door to arbitrariness. The “defender” might have had a dispute with that person, but then kills him, pretending he thought he was a terrorist. That is exactly why, during peacetime, self-defence must strictly meet the three conditions, so that arbitrariness is excluded as much as possible. In the 20th century, during the fight of the United Kingdom against the Irish Republican Army (ira), many civilians were killed, pretending they were terrorists.55 While self-defence is a right of everybody confronted with an unjust imminent threat, you could make killing of terrorists, whose threat level we are not sure of, an exclusive task of the government personnel and private security firms.56 The case presumes that a lot of security people should be present, as they have to react quickly to a signal from these smart cameras. Of course, civilians have a role to play as well. They can also recognise a terrorist that the smart camera or the professional security personnel have not detected, for example, because the person wears a hat. If a civilian thinks that he recognises a terrorist, he could warn the security personnel and they could take it over from the civilian. If a civilian detects suspect behaviour, this can be seen as a more classic case of an imminent threat against which self-defence may be used. 53

54 55 56

Daniel R. Brunstetter, “Can we wage a just drone war?” The Atlantic (Washington, 24 April 2015) . Philip Heymann and Juliette Kayyem, Protecting Liberty in an Age of Terror (1st edn., mit Press 2006) 66. Aart Brouwer, “Shoot to kill” De Groene Amsterdammer (Amsterdam, 2 september 2005) . With extended capacities like the possibility to carry weapons.

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Conclusion

Concerning the treatment of soldiers in war, using the analogy between law enforcement and the war situation does allow for the application of the collectivist interpretation and the moral equality of combatants. Especially because of practical epistemological problems, Walzer does not think that an effort should be made to find out soldiers’ moral responsibility, as McMahan proposes. Both do agree that because of military necessity, both imminent and non-imminent threats can be killed in war because the soldiers will contribute to the military victory one day. After testing the compatibilities between the war principles and the elements of the definition of targeted killing, we concluded that targeted killings against terrorists should be morally allowed during wartime, at least if conditions are met. Sometimes, in a war, terrorists possess either a just or an unjust cause, but they want to hit innocent civilians to achieve their purposes. Again, the analogy test has been applied, and we concluded that it would be good to approach the terrorists collectivistically and as morally unequal. Collectivistically because terrorists might not be aware of the nature of the cause they are fighting for, but they surely know about the unjust methods used, whereby they bear a sufficient minimal moral responsibility that makes them all liable to be killed. Besides, because they sometimes surround themselves with civilians, it is already enough that a huge effort is made to distinguish them from civilians and to wait until the terrorists can be targeted alone. During peacetime, targeted killing of terrorists should be morally allowed, but again, certain conditions should be met. The dilemma is whether the terrorists should be treated the same as during wartime, or whether the strict peace principles must still be respected. It is odd that somebody could come from a war zone and be given more rights just because of this physical transfer, while the grave terrorist threat stays the same, as does the associated necessity of stopping the threat. However, there are some significant differences, which lead to fewer practical problems than during wartime. Many terrorists then could be arrested by surprise, at a moment when they are not in a public place. However, not every terrorist can be arrested this way. We concluded that a nonsuspiciously behaving person in a crowded public place, who is with 100% certainty detected as a terrorist, should be morally allowed to be killed or targeted. The terrorist is approached as morally unequal and collectivistically but only when strict conditions are fulfilled. Killing him is against the conditions of selfdefence, since we are not sure whether he is an imminent threat. However, although there is a danger of slippery slopes (for which I give propositions to

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lower that risk), the problem is that when giving him the opportunity to surrender, he might injure innocent bystanders, like blowing himself up. Although this article focuses on repression of terrorist threats from the perspective of the jus ad bellum/ jus in bello (in)dependence thesis, it is very important to stress that more is needed to eliminate terrorism out of this world. Political negotiations and attempting to fight poverty, which is often a source of terrorism, are examples of actions that must be taken parallel to the targeted killing of terrorists.

Chapter 14

21st Century Global Crises. Sovereignties, Identities, Terrorists Patrick Mileham But the mysterious forces that move humanity – mysterious because the laws of their motion are unknown to us – continued to operate.1 leo tolstoy, novelist.

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Always remember that you are absolutely unique, just like everyone else. margaret mead, anthropologist.

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The man who does not fear death will always be your master. tacitus, Roman Senator, historian.

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“The integrity of evil”

“Evil activity has a power and ‘integrity’ of its own”.2 This astonishing citation, expressed by the former Archbishop of Canterbury, Rowan Williams, appears in his book on the life, work, study and example of the saint and grandfather of Christian ethics, St Augustine. To us as readers the double shock is that the claim flies in the face of the normal meaning of the English word “integrity”, almost always in English usage expressing “the good”. 1 Leo Tolstoy, War and Peace, First Epilogue (oup 1869, 1983) 1209. 2 Rowan William, On Augustine, (Bloomsbury 2016) 87 and John Hick, Evil and the God of Love (Collins 1966) 61–62. With God as agency, “evil” in various co-translations of Isaiah, 45, 7 is about consequent states of “calamity”, “disaster”, “doom”, “woe” and “trouble”.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357815_015

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This stark inversion of evil and good, however, goes some way to explain terrorism as a global crisis. In order to find explanations about the current agency and acts of terrorists,3 this chapter investigates the dynamics of the ­philosophy of evil and good; an empirical and metaphysical understanding of the g­ lobalization process; of personal-, national- and supra- (national) sovereignties; and of personal ontological aspirations and the threat to h ­ uman ­identities. With such notions in the minds of terrorist agents – as well as national leaders c­ ontrolling the use of force, including the terrifying means of mass destruction – we have to find the right Socratic questions,4 even if some are even counter-intuitively unanswerable, in order to achieve a deeper ­understanding of the phenomenon of terror and terrorism in today’s and ­tomorrow’s world. Anyway exposing such a contradiction about the integrity of evil, further explanation of Williams’s quotation draws on an earlier 1966 classic commentary, Evil and the God of Love. In that book the author John Hick is writing of “metaphysical” and “empirical” accounts of evil. “Empirically”, Hick states, evil is “a reality with its own distinctive and often terrifying quality and power”. A person intent on acting evilly against others can set in motion what Williams concludes as the “disintegration and final extinction” of individuals’ personal sense of autonomy and often the lives of persons involved in the actions and incidents. In an extremity of physically-expressed, evil-intended will-power causing shock and harm, Hick maintains that the compelling driving force in the minds of agents involved, well “may retain its degree of mental integration, stability, coherence, intelligence, lucidity and effectiveness”.5 Metaphysical and empirical? The human mind frequently recognizes, copes with, even supports two opposite values and beliefs simultaneously. Hick defines evil agency is “something that manifestly impresses itself upon the subject”.6 Impressing various degrees of fear on others is a common everyday 3 This chapter concentrates on terrorists, rather than the “war against terrorism”. That concept has been articulated by Philip Bobbitt in his masterly account, Terror and Consent. The Wars for the Twenty-First Century, (Allen Lane 2008). 4 The poet Samuel Taylor Coleridge wrote “every man is born an Aristotelian or a Platonist”. Quoted in David Newsome, Two Classes of Men (John Murray 1972). Socrates was wary of the a priori, deduction and innate ideas approach (of Plato) and the a posteriori, induction and empirical method (of Aristotle). Socrates sought constantly to question whether first principles and scientific paradigms could and were shifting. Isaiah Berlin wrote of “basket three” to account for such uncertainties, in The Power of Ideas, (Random House 2000) and Concepts and Categories (oup 1978). 5 Hick, (n 2) 61–62. 6 Hick, (n 2) 61–62. Hick uses the word “intrusiveness” and “impress” interchangeably.

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experience. Nevertheless sudden, random, shocking and acute terror, inflicted with deliberately intended physical harm and death against direct victims, and mental “intrusiveness” against hundreds, thousands even millions of indirect victims, becomes a symbolic, dynamic message, signifying the very power of evil. An aggressive act is used to prove that evil can physically predominate and prevail over the good, contrary to the normal intuitive conception of virtue defeating evil. Inducing a frightening mental reaction in victims is the terrorist’s purpose, yet his or her own perception of terrorism emphatically is as a good. Our shock is complete. Ending this section, the question lingers – can good and evil have any sort of moral equivalence?

The “unity of good”

In his 1996, book The Origins of Virtue, Matt Ridley concludes that virtue derives from psychological-biological factors in human generational development over thousands of years, being the margin of our cooperation and collaboration over competition and, in extremity, violence. Darwinianism, as survival of the fittest, explains only half the story of humankind. Humans possess memory, imagination and the desire for choice. “If evolution worked”, suggests Ridley, “by pitting individuals against each other, it also worked by designing them to seek mutual benefit”.7 The dynamics of combining both competition and cooperation between human beings, he claims, is the reason why humankind has been so successful. Competition as a global phenomenon can often lead to good, even if that means something other than human virtue. Even taking into consideration the terrible wars of the 20th century the population of the world has increased exponentially more than three-fold since 1930 – that is in living memory – to today’s 7 on living individuals. Indeed we learn that individuals are proportionately safer from violent death than they have ever been in human history.8 Yet terrorism seems to be the utter perversion of all virtuous, cooperative behaviour, with an internal, inexplicable and all-confounding logic of its own, but paradoxically in a world of otherwise ­diminishing violence. With whom then are terrorists collaborating, and whom in competition? What is the good of it all? 7 Matt Ridley, The Origins of Virtue, (Viking 1996), 6, explaining the Kropotkin dilemma. Lord Ridley is a scientist, journalist, businessman and politician. 8 See Jared Diamond, The World until Yesterday (Penguin 2012); Stephen Pinker, The Better Angels of Our Nature. Why Violence has Declined (Viking 2011) and Ian Morris, War. What’s it Good For? (Princeton 2014).

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Early investigation into the nature of good is necessary before exposing a dismal catalogue of evil thoughts and actions. Iris Murdoch expresses in her book Sovereignty of the Good that there seems to be a human drive, a “dream of unity” in human life, expressed in the “concept of the Good”,9 even if she stops short, writing that “as far as I [can] see there [is] no metaphysical unity in life”. However, she concedes that “it is true that the [human] intellect seeks unity”.10 So there is in her mind and that of many others, intellect, dreams, empiricism and metaphysics, with some sort of concept of unity in human endeavour, which may lead to the ultimate good and well-being of humankind. This remains questionable. G.E. Moore famously, and to the irritation of other philosophers, wrote of the difficulty of defining the good. One explanation he gives is that other thinkers are indeed “anxious to persuade us that what they call the good is what we [as subject parties, persons] really ought to do”.11 “Ought” and “ought to” are of course verbal expressions inspiring action. They are derived from the verb “to owe”, being the obligation to do something positive, something of value for the greater benefit of objective parties (­ persons) in the enterprise in hand. But such expressions beg the question, what precise ­actions ought to be done which achieve the good? By extension this accords with Ridley’s sense of ever-closer world-wide cooperation,12 an underlying cosmological force. In adjudicating, Alasdair MacIntyre acknowledges that Moore’s contribution to the argument is that “good cannot be the name of any complex whole”,13 to which one might infer that “integrity” is about multifarious and complex motives and numerous indistinct actions. Motives and actions may come together and can still give some sense of the unity, the integrity of good, or provide the opposite. Such brings together Moore’s (Aristotelian) pragmatism and Murdoch’s (Platonic/Kantian) search for ideal thinking. But “ought to” is also used by persons to do what they want to do, either ­entirely for self-interest, or to serve exclusive communities (social, cultural, 9 10 11

12 13

Iris Murdoch, The Sovereignty of Good (Routledge 1970) 92. Murdoch, (n 9) 55. G.E. Moore, Principia Ethica (cup 1903, 1993) 63. Moore hints at the possibility of “intrinsic” evil, 205–206, and the confusion “good” as being of “intuition”, meaning a proposition incapable of proof, while the “naturalistic fallacy” of seeking an empirical e­ xplanation alone to such a concept as “good” is misleading. Philosophers contend with each other over these matters, but perhaps “category confusion”, rather than “category error”, as described by Isaiah Berlin, in Concepts and Categories (oup 1978) and Gilbert Ryle’s Concept of Mind (Penguin 1963) come to mind. Ridley, (n 7). Alasdair MacIntyre, A short History of Ethics, 2nd Edn, (University of Notre Dame Press 1998) 250.

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economic, professional, political, religious or criminal) to which they belong or have an affinity, leading to competition with other individuals or communities. Good is one thing, purity and perfection in thought, word and action imply other things. While purity and perfection are innate ideas they can manifest physical power through action and communication for persons and communities in bettering themselves, their circumstances, their inter-relationships and the spirit which motivates them. However, when taken to great excess – in Aristotle’s opposite of deficiency – sometimes people are led to the desire to purify and perfect other people or communities in order aggressively to protect themselves. Some singly, in communities or in nations resort to harmful force, including just war. Some resort to acts of terror and death, to distance themselves and, by eliminating others, punish them as well as causing their moral disintegration. In any conception of goodness and “any virtue”14 there are clearly things which definitely “ought not to have been done”.15 While below It will be shown that globalization is part physical and part metaphysical, humankind has long considered things that are spiritual, and fashioned communities, particularly religious communities, to promote a truly better life and spirituality. “The final aim….. of all great spiritual disciplines, is no doubt the same”, wrote Matthew Arnold, “man’s perfection or salvation”.16 Will perfection come with the unified cultural, political, racial, religious homogeneity of humankind, all other kinds having been eliminated? We have to ask what is good? Can any kind of force be “for good”17 including a just war?

Terrorists: Agents of “fear and anger”

Terrorists as agents exist to cause physical results of violent injury and death, swift, unexpected, and usually random in order to shock and terrify. At the appendix at the end of this chapter, a selected chronology and c­ lassification of recent terrorist activities is added, to demonstrate at the heart of this collection of chapters that “terrorism” is no mere mental abstraction, albeit 14 15 16 17

Philippians, 4, 8. In the “General Confession” at Morning and Evening Prayer of Anglican Christians, Book of Common Prayer, 1662. Matthew Arnold, Culture and Anarchy, (cup, 1889, 1931) 130. A claim of moral self-righteousness does not become governments. Britain’s “Defence Mission” from the 1998 Security and Defence Review was declared by Secretary of State John Reid to be “a force for good in the world”. It declined in use after the 2003 invasion of Iraq. Jonathan Bailey and other editors, British Generals in Blair’s Wars (Ashgate 2013) 6.

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­ henomenologically gathered together in one abstract term for convenience p of analysis. Every act that can be classified as an act of terror is unique in time, place and effect. How, in a liberal society, we can absorb the moral and legal dilemmas of dealing justly while foiling their intentions, before terrorists strike, maim, kill destroy and terrorize, is the problem of our age. We can conceive that human beings, including ourselves, individually and collectively face a duality-­ dichotomy problem of cooperation and competition, of liberty and security. We face unending contradictory, inconsistent, ambiguous, antithetical, c­ onflicting and paradoxical dynamics, inducing unfairness, inequalities, equivocation, and twisting the meaning of so many human activities and relationships. Do we have to accept Sir Roberts Cooper’s sense of chaotic, competing beliefs and values in his conclusion that the “The challenge to the postmodern world is to get used to the idea of double standards”18? Viewing acts of terrorists is a question of twice-considered proportionality, that is for the terrorist using tactical means for strategic effect and with politico-security responses by the authorities – how heavy handed they need to be. The actual number of deaths and injuries are demographically modest, but the terrorizing effect and consequential heightened defensiveness is not. Terrorism is often very successful. Yuval Harari provides a neat analogy Terrorists are like a fly…. so weak that it finds a bull, gets inside its ear and starts buzzing. The bull goes wild with fear and anger, and destroys the china shop.19 Forcing a confusion of standards on actual and would-be victim populations by violence is what terrorists often achieve, so as to destroy the conception of social unity and integrity, both moral and physical. So the question remains at the end of this section, can terrorist agents, killing or harming those who refuse to be unified to their way of thinking, ever achieve a public good? While to us in the democratic tradition the answer is categorically “no”, the rest of this chapter attempts to explain why terrorists and millions in sympathy with them20 might think “yes”. 18 19 20

Robert Cooper, The post-modern state and the world order (Demos 2002) 37. Yuval Noah Harari, Homo Deus (Vintage 2015) 21. See Sam Harris, The End of Faith. Religion, Terror and the future of Reason (Free Press 2004) 125, 126, quoting statistics of the time asking two questions separately in the general populations of twelve states with varying proportions of Muslim members, “Is suicide bombing in defense of Islam ‘justifiable’ / ‘ever justifiable’?”

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Globalization: “empirical” and “metaphysical”

There is a vast and growing literature of globalism and globalization, but there is no one consistent model or framework for either.21 These are abstract nouns, thinking words, connected or not with what people have done and may subsequently do. That fact epitomises the problem. Globalization, while given a name, may never be understood and never end. It is an established fact that many terrorists seem to fear globalization as an evil force deliberately undermining the purity of their religious beliefs and the structure of their societies, religious and secular. The “mysterious forces” in Tolstoy’s observation above, continue to act whatever. Obvious Synergistic Dynamics It is possible to understand at least some of the forces of globalization, those of competition and those of collaboration. We think of forces which can be quite easily categorized and measured by normal scientific methods of induction and deduction. We can find some broad human categories relatively easy to understand, being about communities and populations in their – Broad and detailed demography – Geo-political boundaries, whether intact, fracturing or porous – Access to commodities, and trading of goods and services – Economic competition, collaboration and output – Means of communications, physical and electronic – Civil and commercial institutional structures, including transnational – International and domestic law – promoting pro-social cooperation22 – Legal and juridical enablement and constraint – Education – Socio-cultural mores circumstances and activities observable within nation-states – Comparative wealth and quality of life – Comparative cultural psychological, social anthropological factors, and – Physical change over time. 21 22

Say in the scheme of Plato’s “innate forms”, even if there is a huge amount of empirical evidence. See two chapters, namely Ted van Baarda and Désiree Verweij “Human Dignity in the Age of Counter-terrorism” and Patrick Mileham, “Moral Dynamics in Culture Centric Warfare”, in Th A van Baarda and D E M Verweij (eds), The Moral Dimension of Asymmetrical Warfare (Brill 2009).

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Metaphysical Forces In addition to the above social, economic, geo-physical and political conditions, globalism and globalization also consist in a mental state, an imagined order of human affairs, which may or may not be close to measurable as physical realities.23 Some factors reach beyond nationhood and even empire ­(ancient, modern or postmodern), to a cosmological order of magnitude. Such international phenomenological factors of globalism consists in “…. more intense forms of connectivity and integration”24 than any before. Moreover humans create degrees of expectation for “Interdependence… [and consequently] in an increasingly globalized world – there is an exacerbation of civilizational, societal and ethnic self-consciousness” amongst individuals in a community, but maybe also “… the return to the sacred…[and the world] as a single place”.25 That means some sort of supreme spiritual, transcendental, supernatural quality of cosmological significance. Reaching even further, Roger Scruton writes of the world itself as having a soul26 (see Section 6 below). As far as humankind relates to non-physical, metaphysical even transcendental factors, reaching beyond our understanding of physical cosmology, our life on earth is likely to bring something of unity and integrity as Murdoch conceded. Religious affiliation is expanding in sheer numbers of people as the world population expands, and also in likely human needs for traditional or new orders of spiritual and religious experience.27 What is also vastly accelerating and growing exponentially are the new dynamics of global travel and mass-migration/immigration, as well as exchange of ideas via digital communications, which has placed the world in the last quarter century in a “wholly new scientific quantum era”. As John Polkinghorne continues, such global-wide theorizing resides “… in the scientific (academic and managerial) community… to depend on metaphysical judgment and not simply on physical measurement”.28 Thus other dynamics, tentative, obscure if not always entirely mysterious, can be found in dependent and independent variables, notably 23 24 25 26 27

28

Isaiah Berlin, Power of Ideas (n 4). His “basket three”, is a method of metaphysical questioning, including counter-intuition, as a way of expressing Tolstoy’s “mysterious forces”. Manfred B Steger, Globalization (oup 2013) 11. William H. McNeill, The Rise of the West (Chicago 1963) 547. Roger Scruton, The Soul of the World (Princeton, 2014). For projections of all the major world religions, Judaism, Christianity, Islam, Buddhism, Hinduism, Confucianism etc. see http://www.pewforum.org/2015/04/02/religious-projec tions-2015–2060/ accessed 16 October 2017. John Polkinghorne, Quantum Theory (Oxford 2002) 88.

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– Cosmological dynamics, including humankind – Global and regional position and alliances of states and communities – Transnational power – Political power, governmental and non-governmental communication as means and content /substance – Forces of Realpolitik (pragmatic actions) and raison d’état (national self-interest) – Non-political power, including “soft power” – Historical stories, narratives and mythologies29 of communities and nation-states – Literature and the arts – Philosophical traditions and values – Ethnicity – Identity – national, community, group and personal – Language, nuance in translation and verbal image – Religion, beliefs and the meaning of life, individual and corporate, – Violence and conflict, and – Change itself, over time. All these changing dynamics may be accelerating too fast to comprehend what is happening. Who is in charge of globalism and globalization? Is our failure to control the forces expanding exponentially too? Can you trust people or something, abstract or concrete, you cannot understand, far less control through any configuration of laws? Can you trust even in language, in abstract nouns, as the basis of metaphysics, which expand in number ever faster than before, ever more specialist and increasingly dense and obscurantist? All these factors, mysterious and non-mysterious, interact and maybe provoke and reject at the same time, the homogenization, the standardization of humankind ­inter-­generationally. Cooper writes “we may all drown in complexity”.30 Time will tell. This brief description can classify but not cover much detail for lack of space. Most of the remaining analysis and arguments in this chapter are about the accelerating, exponential interaction of all identifiable and mysterious factors leading to integration and disintegration amongst nations, communities and individuals. The question at the end of this section, is globalization a truly good, unifying, homogenizing force for humanity, or a force which generates perpetual chaos, or maybe eventually a force which will destroy humankind? 29 30

See Yuval Noah Harari, Sapiens. A Brief History of Humankind (Vintage 2011). Cooper, (n 18) 41.

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Sovereignties: “calculus of interests and forces”

“Sovereignty”, as defined in the full version of the Oxford English Dictionary, is “supremacy in respect of power, domination, authority or rule”. Such dynamics of human interaction, have been long identified as descriptive of h ­ uman ­groupings, including the rise of the sovereign nation-state. In the modern world there seem to be three types of sovereignties competing for power, namely “national sovereignty”, “supra-national or supra-sovereignty”, and “individual sovereignty”. National Sovereignties Much of history, particularly of conflict, has been the story of the activities of tribes, communities, countries, nations and states seeking superior control over, if not absolute supremacy in their own affairs, free from over-lordship or imperial authority and yet often seeking supremacy over the affairs of others. Even with the coming of international bodies, such as the un and its affiliated institutions, the actions and dynamics of modern-day international relations remain dominated by the plurality of nations as “nation-states”, guided by their individual national interests, raison d’état, but moderated or curtailed by ­Realpolitik in the real world. The term nation, however symbolically dominant ascribing sovereignty, is no longer so strong a concept and reality as it was. Philip Bobbitt writes of “modern states” and “market states” and foresees the “death of the society of nation-states”.31 The most developed nations are now “market states”, of global proportions. If sovereignty is power in the hands of leaders, communities and nations, then all are in the constant business of reinforcing the power they hold, including through interrelated projects of globalization, but also seeking to extend that power, lest they lose it through inaction and complacency. Of course individuals, with or without personal power, cannot be other than part of communities and nations, like it or not – including would-be terrorists. To reject power is, in a sense, to acknowledge the power of other people, other nations and something beyond. What then is nationhood, which in itself is supposed to hold power over people?

31

Philip Bobbitt charts progress from “Princes” to “Princely states”(1494–1648, Peace of Westphalia), “Kingly states” to “Territorial states” (1648 – 1776, us Declaration of Independence), “state-nations” to “nation-states” (1776–1914), followed by emergence of the “modern-state” and the “market-state”. Philip Bobbitt, The Shield of Achilles. War Peace and the Course of History (Allen Lane, 2002).

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Beginning with human imagination and the particularities of communities and nation-states, there is what Benedict Anderson describes as an “imagined community of nationhood”.32 Such internalization accords with what Yuval Harari ascribes as “an imagined order”,33 a collective view, a socio-political vision of the past, the present and an idealized future, held by people connected with a particular geographical space, or dispersed individually, or in distinct communities around the countries of the world. Through the common stories and popular imagination, a nation has an identity as well as culture, geography, people, moral standing and reputation, and to many, some sort of destiny. Yet the “imagined community of nationhood” has never been fulfilled in some countries, and seems unlikely to be soon, if ever. In others it has been attempted and shattered, because the community could not find socio-­ physical integrity and a natural cultural-spiritual unity. Is it unity in an openly-­ conceived civilization which people seek? “The greatest theme of history still is, and perhaps always will be, the unending story of men’s effort to reconcile order and liberty, the two essential ingredients of a truly great civilization”.34 Civilization implies the disciplines of a cooperative moral order, rather than a coerced competitive order, as evident in authoritarian and militarized states. Terrorists today challenge both. Some detail is necessary to classify nation-states. Cooper writes of even today’s “pre-modern states” (such as Somalia, Afghanistan and Liberia) “modern states” (India, China, Brazil), and “post-modern states” (some European ­liberal democracies). He notes that the usa wavers between the latter two ­categories, seeing that “us national security has become so expansive as to be virtually limitless”.35 Russia wavers even more. The notions of global dominance, empire, hegemony and spheres of interest are somewhat retrogressive, being the “calculus of interests and forces”,36 both empirically understood, but also metaphysically shaped in the minds of their members and other nations. Many nation-states progress even if only gradually. Some others regress or fail, even if they have strong elements of post-modern and market-states. However all nations live in a world that is globalizing metaphysically as well as physically. Most nation-states are of course defined constitutionally in substantial documents of legal validity, recognized amongst the nations of the world. Under authoritarian regimes, dominated by more or less militarized agencies 32 33 34 35 36

Benedict Anderson, Imagined Communities (Verso 1983, 1991). Yuval N. Harari, Sapiens, (Vintage 2014) 30, 114–124. B Wilkinson, The Later Middle Ages in England, (Longmans 1969) 383–386. Article title by Andrew Preston, Cam (Cambridge University Journal) 81 Easter 2017, 13. Cooper, (n 18) 17. See also Bobbitt (n 31).

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­supporting a less than a liberal or wholly illiberal autocracy, life is characterized by extreme competition. One party controls other parties in strict conformity, unfairly disallowing most personal freedoms by illiberal means, on the basis of a threat and maybe the perceived necessity to use physical harm, prison or death for parties on the wrong side of the authorities with a monopoly of power. Victims may indeed challenge non-consensual sovereign power held over them through many means, sometimes including terrorist activities. Their definitions of vice and virtue are competing negatives and positives, depending on whether you believe in and live by a civilized liberal democratic way of life, or a militarized, authoritarian regime. Terrorist are active amongst both constituencies. Nonetheless there are many strong, confident nation-states with firm sovereign constitutions and geographic borders, which can withstand d­ egrees of political and revolutionary change, even occasional turmoil and still remain mainly liberal. Even so many nations have given away some of their sovereign power to international treaty organizations, for instance the North Atlantic Treaty Organization (nato) in respect of guarantees of defence, the European currency, or the European Union (eu) itself. Over-lordship or subsidiarity, there are signs that centralizing power above the nation-state does not necessarily suit nations and communities for all time. Change happens; paradigms shift; politics and economics compete with constitutional affairs. The desire for the United Kingdom to regain entirely its constitutional independence from the eu and the possible withdrawal of Catalonia from Spain, are ­symptoms of such supra-nationality with nationality ­having gone too far for some strong communities to accept, even though previously recognized in domestic, ­ constitutional and international law. Majorities and minorities compete in democratic as well as non-democratic nations. But there are other claimed communities and quasi-national sovereignties such as the Taliban, Islamic State (is or Daesh), Hisbola and Boko Haram as would-be nations. They have crises of choice between more or less accepting and cooperating with existing “imagined communities” and “imagined orders” which may be very real; or they are in violent competition with the same established and constituted communities which they don’t much like or blatantly hate. Some such imagined communities and orders cross geophysical boundaries, becoming very real international or global choices of affiliation. The is Caliphate is one such community seeking a reality beyond nationhood, the status of a supra- identity. It claims a moral supra-sovereignty, in geographical space and amongst a diaspora of believers an ultimate imperium of world order. However in late 2017 it seems to be failing.

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Supra-nationality / Supra-sovereignties The sense of real and imagined supra-nationality has existed in the notion and reality of empires for thousands of years. This takes us back to the dynamics of empires and also recent globalism. What do we make of Huntington’s The Clash of Civilizations and the Remaking of World Order37 as if there had been a coherent “World Order” to be re-made? In John Lukacs’s critique of historical perception At the End of An Age,38 he sees a total discontinuity with the past concept of an age of empires, including Christendom, as does Francis ­Fukuyama in his End of History.39 Zygmunt Bauman writes of the “scandal of ambivalence” in Modernity and Ambivalence, when he claims there is a schizophrenia and the “horror of indeterminacy”, while recognizing the categorical “rootlessness of universality”40? Is universality the same as globalism and globalization? The metaphysical, transcendental universality of “the sacred” and “soul of the world”, have been already alluded to by Neill and Scruton (Section 4 and below, Section 6). Albeit touched on above, this second type of sovereignty is that epitomized in what has been classified as “a new supra-national form of sovereignty, a global empire”,41 but actually transcending physical existence through scientific advances, generated by and consisting in Information Technology (it). This “supra-sovereignty” of power and identity is both real in terms of physical globalization but also something above the an imperium of human leadership, which bluntly seizes or subtly overwhelms and overpowers the human mind and maybe the human brain. it dwells on the normal matters of day to day living at the personal level, but also at the global level with millions intimately engaged. While life drifts on, so far it has been received wisdom that human nature itself does not change. However there is evidence that it, as the new suprasovereignty, is changing peoples’ minds as no phenomenological dynamic has done so effectively before. With Artificial Intelligence and 37

38 39 40 41

Samuel P. Huntington, The Clash of Civilizations and the Re-making of World Order, ­(Simon and Schuster 1997). As the sole superpower twenty years ago, there was an assumption that the usa order was the world order, notwithstanding the Hobbesian warning of L­ eviathan followed by Behemoth. John Lukacs, At the End of an Age (Yale 2002). Francis Fukuyama, The End of History and the Last Man (Penguin 1992). Zygmunt Bauman, Modernity and Ambivalence (Polity 1991) 56, 85, in which he cites the problems of existentialism found by Kafka, Satre and Camus. Michael Hardt and Antonio Negri, Multitude:War and Democracy in the Age of Empire (Penguin 2004) 3. See also Boris Kashnikov, “Sovereignty, the Spell of War and Elusiveness of Victory” in Peter Olsthoorn, (editor), Military Ethics and Leadership (Brill Nijhoff 2017) 268.

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technologies such as cognition-enhancing drugs, mind-changing software and electronic devices that interact with brain and mind are being applied to our children….[and] may be changing the very way in which our children think. …The human brain is exquisitely sensitive to any and every event: we cannot complacently take it as an article of faith that it will remain inviolate, and that consequently human nature and ways of learning and thinking will remain constant.42 Recognized a decade ago while “social media” was being seized by several millions of people, today in 2017 at least two billion people communicate by such means many times daily. Millions have adopted for themselves an electronic alter ego, which proves to be the overriding compulsion of such technology driving global, commercially-supplied cyber activity. The substance of this new communication seems to be a never-ending concatenation of strange, fleeting moments and ethereal imaginings in individual or group self-consciousness, hard facts and inner wish-fulfilments, together with known certainties and many uncertainties, as well as what is daily exposure to true and fake news. How will the internet develop in itself and in ­I T-human integration in future? An “algorithmic world”,43 enabled by advancing computerization, changing human nature and human worth, is increasingly being referred to. Moreover Mark Zuckerberg, Facebook founder, claims that his global institution can “fill the gap in people’s lives left by the decline of churches, as well as organizations. ‘A lot of people now need to find a sense of purpose and support somewhere else’”.44 Such compulsion among humans for fingering their mobile telephone and “app” is likely to become algorithmically compulsive and entirely beyond human spiritual understanding as to become anti-liberal if not mental imprisonment.45 This form of mental, metaphysical supra-sovereignty has many consequences. In particular it can replace a sense of spirituality, religious beliefs and affiliations across all the major world-wide religions. Spiritual belief is one thing, organized religion another. The Islamic world is particularly affected, with the internet seen as acutely dangerous to an Islamic future, a religion which ­refuses to reform itself and remains fundamentally divided into two m ­ ajor groups, 42 43

44 45

Baroness Susan Greenfield, in a uk House of Lords’ debate, 20 April, 2006. Christopher, Steiner, Automate This (Portfolio Press 2012). “The ability to create algorithms that imitate, better, humans is the paramount skill in the next 100 years”. Financial Times, 29 August, 2012. As widely reported, including The Guardian, 29 June 2017. Paul Lewis, “How tech hijacked our brains”, The Guardian, 6 October 2017.

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Shia and Sunni. The us and other powerful nations are blamed for imposing the problems of globalization, and particularly undermining many of God’s laws claimed by the Islamic world in the literature, some of which to Western ­liberal-democracies, are categorically anti-liberal and inhuman in ­International Human Rights Law. How far the billions of moments of daily communication are either of competition or collaboration is an unanswerable question. Such means of power, used effectively in the us Presidential election, whether or not interfered with by aggressive, external cyber attack, cannot be denied as being a new form of supra-sovereign power-politics. Personal Sovereignty “Personal sovereignty”,46 the freedom to choose for individuals, communities and nations, remains a mental phenomenon as well as a legal fact, gives us the third type of sovereignty. Personal sovereignty, is a notion and situation derived from the Enlightenment project in Western Europe from the eighteenth century onwards. It was a matter of individuals and their beliefs and consciences being distanced from supernatural and Church control and their actions being free from oppressive governments, at the time chiefly dominated by sovereign monarchical rulers. As well as accepting the benefits of greater personal access to human goods, increasingly people also wanted to be able to think for themselves, not told what to think. Freedom and liberty, the modern-day notion of personal sovereignty, placing sovereign power firmly with the individual person, has been directly and indirectly encouraged since the 1948 Universal Declaration of Human Rights by the growth of International Human Rights Law. With the decline of physical empires came the right of self-determination, taken to its logical conclusion substantially expanding the bounds of personal freedom. Personal sovereignty is a project generally accepted as “the claim that individuals have a right to shape their own ends for themselves rather than let others do it for them”47 the basis of liberal-democracy. Many terrorists seem to want for themselves sovereignty over others, yet ambiguously and simultaneously deny it both for themselves and others. However the argument goes back in history to competing and cooperative factors, in this case where does final, absolute control reside? Does the 46

47

See Centre of Personal Sovereignty website, with arguments for responsible acknowledgement of such freedoms by individuals, www.personalsovereignty.org/ accessed 6 October 2017. Anthony Pagden, The Enlightenment (oup 2013) vii.

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c­ oercion required to curb excess freedom of action and responsibility rest with the community or the individual, as his or her inalienable right to “life, liberty and the pursuit of happiness”48? The 1948 Universal Declaration of ­Human Rights, Article 3, extends this aspiration and, included in Article 1, is the obligation amongst all people to show “reason and conscience”49 in all human enterprises and relationships as a self-imposed restraint. What has happened to conscience between say first nuclear release in August 1945 and today? Is conscience still about doing good things? Sovereignties, plural, compete. They particularly compete with the understanding or misunderstandings of individuals’ sense of uniqueness, identity and personal power or powerlessness. Freedom for individuals to do anything and everything they want to do in order to achieve shared or self-centred personal happiness, is a modern-day dynamic which is very much part of the globalized agenda. Such can promote greater freedom and liberty as no other world-wide movement has done in the past, but still can have adverse even drastic consequences. National and community sovereignties, individual sovereignties, and supra-sovereign identities and processes, such as an algorithmic procedure for control of other sovereignties, can work together in tandem or be pitted against each other in competition and maybe violent conflict in future. The question remaining at the end of this section is – how far can national sovereignty, supra-sovereignties and the personal sovereignties of countless individuals converge together in accord, cooperation and freedom, or will they compete for all time?

Unique Self-consciousnesses: “rootlessness of universality” First person awareness is the premise of interpersonal relations, and it is on those relations that our nature as persons relies. It is for this reason that we find questions of personal identity so puzzling.50 sir roger scruton, philosopher.

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49 50

us Declaration of Independence 1776. See Philip McCormack, Grounding the British Army Values Upon an Ethical Good, 30 March 2015, an official uk Army Board-endorsed essay, linking military ethics in respect of “inalienable natural rights” www.cgscfoundation.org/ wp.../2015/.../McCormack-GroundingBritishArmyValues accessed 6 October 2017. See Patrick Mileham, “Military Integrity: Moral or Ethical?” in Peter Oltsthoorn, editor, Military Ethics and Leadership (Brill 2017) 142–144. Scruton, (n 26) 49.

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Individualism Arguably the notions of individualism and consciousness comes before per­ sonal sovereignty and real and imagined communities, within which people live, hopefully in accord and yet mostly without escape. The theme of John Lukacs 2002 book At the End of an Age is about all the “evolution of conscious­ ness”51 which independently echoes Jacques Barzun’s 2001 intimate study of 500 years of Western cultural life, From Dawn to Decadence. Barzun is of the opinion that Individualism is… not a social and political condition, but a mental state. One can be in prison, [with] individuality all but submerged, and yet be acutely self-conscious. Individualism has limits imposed by the coexistence of many other individuals; self-consciousness has none. Over the centuries it has dug even deeper into the ego, with no boundary in sight.52 To adopt self-enquiry into one’s own mental state is, in a sense, philosophizing. We humans are physiologically designed to think with our brains in order to act physically, as well as influence and motivate others. When the wisdom of living and collaborating with other people has to be taken into account, Mary Midgely53 wrote of the difficulties of psychology and philosophy becoming overly compartmentalized, as if they were dealing with an different s­ pecies of being. Strangely psychologists and psychiatrists seldom exchange notes with philosophers over the interrelationship of brain and mind, of psychology, of philosophy and of ontology, the very meaning of life, as investigated below in this section. The existentialists took the art psychoanalyzing oneself further and popularised it in ever-expanding cultural awareness in literature, films and communications generally and, since the 1960s the art has been practised within the expanding context, dynamics and momentum of secondary and tertiary education. The enlargement of self-consciousness and the ego, plus those people developing overwhelming self-obsession, is much part of the enquiry into terrorism as instances of acute and physical violence. Personal Identities Each individual human has a personal narrative, an instinctively conceived personal curriculum vitae. We are the subject of our own story, in our real 51 52 53

Lukacs, (n 38) 184. Jacques Barzun, From Dawn to Decadence (Harper 2000) 49–50. Mary Midgely, Wisdom, Information and Wonder (Routledge 1989) 88.

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and “imagined communities” (in Anderson’s meaning above) and “imagined order” (in Harari’s meaning). This reveals that individualism is only possible in conjunction with other human beings – even if only with Defoe’s/Crusoe’s Man Friday – yet paradoxically and uniquely individualism is being “just like everyone else”. But to oneself of course “everyone else” are “others”, objects – even if every person, to himself or herself, is the “subject”. Looking more widely, s­ ubject-object interaction prompts the spirit both of unity and disunity, cooperation and competition in communities. But what of the “subject”? Identity is also about how individuals develop and feel they have developed, in – – – – – – –

Intelligence, knowledge and understanding The ability to contemplate a sense of inner and outer life Moral understandings of fairness and unfairness, goodness and wrongdoing Psychological and personality balance and maturity Gender awareness, sexual orientation and pro-creational activity Ethnicity of culture and language, and Health, personal and national.

Identity is also how an individual regards his/ her – – – –

Physiological abilities and appearance Integration, alienation, or dislocation in regard to “everyone else” Power and influence, or powerlessness, to make choices, and the Ability and willingness to cooperate and compete.

Physical and psychological limits to individualism are found in all c­ ommunities, cultures and nations, but inflation of self-consciousness, leading to e­ xaggerated and rampant egoism, narcissism, self-obsession, hubris, and even megalomania, is characteristic of today’s societal encouragement of self-­conscious ­individualism – via instant, globalized audio-visual ­communications. In today’s world, individualism seems to dwell at one end of a continuum of ideas and actions, with globalism at the other. Each one of us lives both a local life and within a global village. So is the expansion and magnification of the human ego inevitably part of the post-Enlightenment, post conscience-stricken, cooperative-­competitive globalization process? Is every man and woman their own existentialist, metaphysician and ontologist, with glimpses and grasps of micro- to macro­understanding – and the opposite, confusion becoming more widespread and louder over time amongst the world’s population? While these factors may be

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considered as essential, existential, even ontological, peoples’ individual mental states, psychological stability and the possibility of mental illness, pathological paranoia or drug-assisted mental aberrations are also considerations. Add the “politics of identity” and even more mental; confusion can result, ­albeit there is no space here for detailed political debate. However, in passing, the very word “individuality” is suspect. You may construct your own “identity” as hard as you like, but others may have control and deny who and what you think you are. They may not even tell you of your absurdity. Indeed an inflated ego leads to the confusion behind the mask of persona, with perhaps a variety already of wish-fulfilling alter egos, electronic or otherwise. That also gives a sense of inner life, a soul, a counter to anonymity. Anonymity is akin to nothingness. Anonymity can be hell. So each person accepts intuitively, or seeks to articulate for himself or herself and others his or her own identity. The possible constituents of identity are the individual’s sense, more or less, of placing oneself within the wider purviews of all the preceding lists shown above, and particularly in the dynamics of – – – – – –

Nationality and community affiliation Religious beliefs and affiliation Political ideology Cultural integration, strong or weak Race, however conceived, and a Sense of personal uniqueness.

Twenty-first century pressures have drawn together and also fragmented all these factors, particularly nationality/nationhood, determining a person’s selfidentification and in respect of other people. Carrying the arguments forward the question is – do people actually like their self-conceived identity and value their own lives, let alone the lives of others, or do they not? This leads to deeper questions, the enquiry into ontological factors. Ontological Dynamics We human beings exist on this earth for cosmological causes and effects, to live as individuals and pro-create for the survival of the species, to cooperate, to compete, and hopefully to collaborate, so as to achieve a state of general human, global well-being. It has already been suggested that globalism is both a factual and an essentially metaphysical state in the lives of the vast majority of human beings. The sense of corporate ontology can be seen as evolving from the existential awareness of individuals, expanding from the few in the

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past with leisure time to examine their thoughts – say when Sartre, Beauvoir, Heidegger and Camus were active more than half a century ago – to an ever increasing number of people today. For numerous unique individuals, willing and able to introspect deeply beneath their self-conceived and externally recognized outward persona, there can exist a genuine search for the very meaning of life, deeply embedded in community and personal formulas expressed above. Such may be comforting but also disturbing. Philosopher Francis Ambrosio, suggests there are self-analytical questions as to why an individual should feel comfortable and good about himself or herself or the opposite. More than his use of metaphor, he broadly classifies such questions being about “heroes” and “saints”. – “Does life have a purpose? Why am I here, what’s it all about? What difference does it make? What’s in it for me”? – “For the hero, the meaning of life is honour and self-esteem”. – “For the saint the meaning of life is love”.54 That inner feeling of goodness may be shared with a single supernatural being, God, or multifarious constituencies made up from personal or tribal gods – ­including power, money and fame – or of a person’s community’s self-identity, but also in conjunction with numerous other human beings. The hero is seeking opportunities for proving personal courage and excellence to himself or herself, and usually wide recognition. The good person, the saint, is seeking a good purpose, maybe a covenant with the Deity, to work for other people, or with a variety of “othernesses”, including objective, utilitarian i­deologies, like democratic and market freedoms of choice. But the third alternative, ­perceived by self or by others, is that of life being occasionally or frequently absurd, because for each individual it starts in seemingly genetic somethingness and ends in physical death, and seeming lifeless nothingness. What spiritually is in between? Is there something beyond death? Does an individual soul provide continuity? If not what does? The perennial question is does life have meaning, as experienced and / or in the human imagination. Or is it of nothingness, nihilistic, or is it merely empty wish-fulfilment, or indeed absurd? Does the answer vary day by day? Does it matter to be alive? Is life worth living? Is life worth dying for? What evidence is there of life beyond death and does it matter either way? What is the good 54

Condensed from Georgetown University Professor Francis Ambrosio, in Philosophy, R ­ eligion and the Meaning of Life (Great Courses 2009) 10.

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life, eudemonia by any other name? Is selfishness and self-absorption part of the individual’s sovereign right of choice, to be defended, violently if necessary against the perceived and real mental and physical competition of others? Making sense of these questions and finding answers is a struggle, ­forming the story of a person’s life, the narrative of circumstances, relationships and events. Looking to other thinkers, can one be fully objective about other p ­ eople and indeed oneself? Montaigne55 tells us that all life is subjectivity, however hard we try to objectify our findings. He also explains that whether we think deeply or not, we are conceiving and living our autobiography, a story over which we may or may not have control day by day, directing our self-conscious or unconscious decisions and judgments. Such factors also reside in the narrative of globalism – and of terrorism. Looking more widely for further insights, the philosopher, Paul Tillich, writes of ontological experience linked with the strength of “courage” as ­“self-affirmation”,56 similar to Maslow’s well-known hierarchical motive of “self-­ actualization”. In a Christian context that state is of the good and loving person in respect of others, with a covenant, the promise, explained by Martin Buber, between I, you, we and them57 – and God – the true meaning of love as agape, caritas. Yet every true human “encounter [is] between subjects”,58 Roger Scruton asserts. Every theoretical and imaginary encounter between people is, in that sense, objective. Gabriel Marcel also identifies the “ontological mystery”59 of human endeavour of an individual to understand his or her life, as the “subject” of experience, identified by Tillich as ultimately, existentially “the courage to be oneself”,60 with or against the tide of humanity. Can that apply to the sincere and genuine terrorist? Integrating Uniquenesses Tolstoy indicates that we cannot know or understand much about of mysterious,  corporate forces: nonetheless he divides forces in life and the 55 56

57 58 59 60

Michel de Montaigne, Essays, (Everyman edition 2003 [1572–88] 2. See also Ermano ­Bencivenga, The Discipline of Subjectivity (Princeton 1990) 7. Paul Tillich, The Courage to be (Yale 1952) 20. A German Christian Pastor, in his early life he witnessed the First World War and lived through the Second as an American citizen. He knew of the danger of being a “hero-saint”. Tillich promotes the hermeneutical study of religion and the individual’s place in a religion. Martin Buber, I and Thou [Ich und Dhu] (Continuum [1937] 1999). Scruton, (n 26) 49. See both Gabriel Marcel’s The Philosophy of Existentialism, (Citadel 2002) and particularly Man against Mass Society (St Augustine Press 1978). Tillich, (n56) 105–143.

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­understanding of them, between those of “progress” and those of “reaction”,61 for self and for others. Progress towards or reaction against what? Is humankind to be homogenized, if so what of good and evil? Anthony Giddens writes The world is “one” in some senses, but radically riven by inequalities of power in others. And one of the most characteristic features of modernity is the discovery that the development of empirical knowledge does not in and of itself allow us to decide between different value positions.62 But what is of value? Does that mean that epistemological empiricism is rendered redundant by ontological and metaphysical value, or vice versa, in the meaning of individual and corporate lives? Scruton concludes that through notions of “transcendence”, corporately “we enter the realm of sacred things, of obligations that cannot be accounted for in terms of any [formal] deal that we made, and which speak of an eternal and otherworldly order”.63 This implies individual and corporate conscience leading to the “the soul of the world”. Is that soul the sum of all the consciences and souls of individuals that have been, that are and that will be born? If souls do not exist, does nothingness exist too? This brings us back to the question of globalism as a metaphysical state, also the millions of infinitesimally small individuals, amid Tolstoy’s mysterious forces, including would-be terrorists. Concluding, Ambrosio also asks if the goodness and dignity64 needed to be felt by the individual is for the deepest sort of self-satisfaction, unrecognized by others? Or in modern-day perception, is the status of celebrity, maybe recognized by a few or hundreds of people locally, thousands widely, or millions globally, which provides the dominant life force for many individuals? This brings the argument back to the inflation of self-consciousness and egoism. Whether we see ourselves as celebrities, heroes, hero-saints, just good saints or abject failures, within a narrow or wide group, nationally, internationally or globally, more or less that will give us a sense of identity. Our unique identity, constructed by ourselves and others, may be all we have to live with and die for. So if terrorists view themselves as sincere hero-saints, do they, like H ­ amlet, also have the necessary “courage to be” themselves, with ease, and yet also 61 62 63 64

Tolstoy (n1) 1209. Anthony Giddens, The Consequences of Modernity (Polity Press, 1990) 154. He also quotes James Lovelock’s Gaia hypotheses on the planet as one single organism. Scruton, (n26) 176. See van Baarda and Verweij (n23 ) and McCormack ( n48).

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in internal conflict with themselves? This is the question that remains from this section. It takes the argument back to considerations of a crisis of self-consciousness.

Identities in Crisis: “a desperate struggle”

There seems to be a received wisdom that while circumstances change, human nature does not. If until recently human development has been linear, Anthony Giddens suggest that The discovery of oneself becomes the project directly involved with the reflexivity of modernity. Interpretations of the quest for self-identity tend to divide in much the same way as views of the decline in community.65 The world of communities seems to be heading both towards supra-­ communities and coincidentally towards renewal of old and fragmented communities, as well as forming many new communities. This division is caused by forces of self-development and individualism, and the counteracting force which makes people more dependent in communities, not more independent of each other. I believe that this clash of personal power and sovereignties, prompted and sustained by the forces both mysterious and non-mysterious of globalization, cannot be avoided. Actions, particularly violent actions, against the forces which sustain communities, causes metaphysical and ontological confusion and frequently bewildering distress or elation in many people, including would-be terrorists and their victims. Distinctions and divisions giving a sense of familiarity and homeland, are manifestly breaking down. Many people see these trends as good; and existential egoism good for developing universal humankind and world-wide cooperation, prosperity, inclusiveness and individual well-being. Others see such trends as destructive, since familiarity with race, ethnicity, culture, religion, language and nationality are rooted in geographical sovereign boundaries of community and nationhood. Homogenization and standardization of culture, and particularly religious culture, is seen by many communities as trends to be feared. If fear grows then cooperation declines and competition multiplies, sometimes into violence. 65

Giddens, (n 62) 122.

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Opportunities, tensions, competition and crises are endless. “Man behaves like a group territorial species… [but with] limited behaviour adjustability”,66 time and place being the circumstances of consciousness of self with others in community or disunity. If the fear is internalized by auto-suggestion, or externally, being the pressure of radicalization by self-appointed leaders, exemplars and mentors, then the identity of the individual or group becomes dangerously vulnerable. With feelings of fragility and powerlessness, fear continues to increase. In viewing the immediate circumstances a person might find that he or she is involved in a what becomes “a desperate struggle in which a fighter stakes his all”. Indeed in Konrad Lorenz’s conclusion about all animate beings, indeed “this most violent form of fighting behaviour is motivated by fear”.67 Self-identification has been increasing with human beings’ expanding selfconsciousness over the centuries. Terrorism has recently been burgeoning with some direct and many indirect connections between these two trends within a single person. People ask themselves – – – – – – – –

Who am I? What do I believe? With whom do I affiliate and why? What is my narrative? What can I do? What can I not do? What causes my fear? What can I avoid or eliminate from my life?

In all of this there can be alienation, loss, entirely or in part, of identity, territoriality, nationality, race, culture, religion. What can I do to regain what I think I might be losing, or gain other superior identifying factors, for myself, for others and local authorities or any supreme authority I recognize, for instance God? What facts don’t I recognize? Should I distance myself from, or eliminate, those factors? Are things better in my generation compared with previous generations, or are they becoming worse? With globalization comes fragmentation of previously easily identifiable constituents of life, whether satisfying or dissatisfying, good or bad. The growing factor of geographical/demographical migration, particularly for reasons of escape from a “zone of danger” (poverty, disease, famine, war), to a “zone 66 67

Niko Tinbergen, Professorial Inaugural address in February 1968 at the University of ­ xford, quoted in Ashley Montagu, The Nature of Human Aggression (oup 1976) 259. O Konrad Lorenz, On Aggression (University Paperback 1967) 21.

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of security”68 (peaceable, just, liberal, prosperous), with greater economic and social opportunities and personal freedom, works for many. It does not work for everyone, particularly upcoming generations, intuitively seeking something lost in their perceived pre-history, maybe a lost “imagined order” and un-retrievable previously “imagined nationhood”. Retro-radicalization occurs in some, mixed urban areas amongst alienated, vulnerable people where and alcohol/drugs and sexuality uncertainties add confusion. Substantial or mass migration/immigration does not work necessarily amongst longer-­established, geographically-settled receiving-communities with culturally-different incoming individuals or communities, maybe bringing uninvited social, racial, militant-religious and cultural tensions and demands for change. The very breakdown of all modern communities, from the decline of religion, racial intermarriages, exclusive communities within larger community in geographical tension within urban settings– being self-selected, or more or less ghettoized – are recipes for widespread and dangerous crises of identities of individuals, communities, even nations. Fear of the future breeds terrorism. Space precludes detailed analysis of every terrorist agent, communities of terrorists and the breakdown of communities. It is safe to say that some individuals suffer from a personal crisis of identity by auto-suggestion, others by external influence. Whichever way, it can make them vulnerable, fearful and maybe acutely aggressive. They can radicalize themselves or be radicalized, particularly in their religio-ontological vulnerability. While terrorists are certainly not all Islamic fundamentalists and radically inspired, the tensions and divisions in the Muslim world today is what the Jewish world contended with in pre-Roman times and many times in history, and what forces Christianity faced at the time of the Reformation and Counter-reformation. That hiatus continued for upwards of three centuries, with strong trace elements remaining today. However those schisms of the past did not have the weaponry and mass communications which today we witness has intensified current power-­struggles, particularly within the fractured world-wide Muslim community. To be more geographically specific, in recent years most advanced liberal-­democracies have attracted large-scale or mass immigration, chiefly because they are liberal. The “Islamization” of Europe is claimed even if not wholly evident and tension exists in such places as London and Bradford, Paris, Brussels, Dresden, Munich and now Vienna. Of course many of the immigrants are seeking what an un-named migrant-carrying lorry driver stated in March 2016 near Dover, 68

Michael Ignatieff, The Warriors Honor (Chatto and Windus 1998).

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“Everybody has a right to a better life”69. But does everyone have such a right, legally, economically, socially or spiritually? Do successful terrorist acts sometimes establish new human rights, perversely or positively for the good? In 2015 the Head of mi 5 (the British internal intelligence and security service), Andrew Parker, said that the terrorist threat was continuing to grow because of the situation in Syria. The shape of the threat that we face today has changed because it is driven from conflict zones… and the way that terrorists use social media, including from Syria. They are using secure apps and internet communication to try to broadcast their message and incite and direct terrorism amongst people who live here, who are prepared to listen to their message. mi 5 has seen individuals radicalised to the point of violence within weeks.70 “The uk may continue”, concludes Lord Evans, a previous Head of mi 5 in an interview, “to face the threat of Islamic terrorism for another 20 to 30 years”,71 the problem being chiefly a “generational problem”. Assistant Police Commissioner, Mark Rowley in the same interview, asserted that terrorism in the uk was “cultish” rather than “a very tight network of wicked individuals”. The terrorists’ broadcasting messages of their deliberate atrocities, however, go “viral”, with millions of people being made aware, worried or indeed terrified. So the question remains – is terrorism a merely passing phase for the first half of the twenty-first century, periodically cyclical in intensity and scale, or a permanent dynamic in human life and an indeterminate future?

Suicide as Life-force: “choice, approval, obedience”

This penultimate section is in many respects speculative, because the questions in the previous sections are so difficult to answer. A socio-psychological condition of anomie was identified by Emile Durkheim in an original thesis in 1893.72 It described the non-possession, decline or elimination of normal restraints on the cooperative behaviour of people in groups and communities. What can happen in an individual’s life, to cause detachment from society and deviant and dangerous behaviour against any ­community and its values, is a matter of socio-psychological narrative. A ­ nomie 69 70 71 72

Radio Times, 19 March, 2016. Evening Standard, 17 September 2915. Lord Evans, and Mark Rowley, bbc Radio 4 Today Programme, 11 August 2017. Emile Durkheim, The Division of Labour in Society (Free Press 1984).

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is an extreme condition, and persons affected are acutely disturbed even suicidal in Durkheim’s classification. Certainly the subject person’s distinction between, power over, life and death predominates in their self-conscious ontological questioning, about the very meaning of life and death, and whether there is an afterlife. Anomie is either a radicalization away from a community or in support of a community. Differing from other conditions is the likelihood that suicide to the terrorist is non-frightening, even welcome and rational. While not culturally normal in a population, for the sincere specialist-terrorist death can be exhilarating, even a release from current, unacceptable conditions and forces, perhaps even culminating in a personal life-time achievement. How do the terrorists see good in what they are doing? The huge dynamic forces of globalization and communication, apply great pressures and opportunities on people, including those who see their personal “imagined order” collapsing as a result. Alasdair MacIntyre defines good as factors working for “choice”, “approval” and “obedience”,73 that is approval of self and others, choices for individuals and groups and obedience to group norms and maybe otherworldly powers. Obedience to, and approval by, whom? Robert Merton noted that “deviant behaviour is just as much a product of social structure as conformist behaviour”74 but when the social structure is fracturing, conformism and deviancy seem to become confused. Yet Giddens warns that “man is the more vulnerable to self-destruction the more he is detached from any collectivity… the more he lives as an egoist”,75 which re-echoes Barzun’s claim above of ever-expanding, limitless, egoistical and hubristic tendencies. From this it is reasonable to understand that those who are attracted to the agency of terrorizing others – in their own communities or other communities – are prone-to-be-radicalized, would-be, self-identifying terrorists seeking the approval of other like-minded terrorists. They make the choice to be a terrorist and are comfortable in their obedience for approval as hero-saints while pursuing whatever cause they feel they represent. They become seriously and significantly empowered, and the evil for their victims is wreaked as individual punishment, yet claimed to be for the general good. That enables the term “­integrity of evil” to be entirely rational and a proven good in the terrorists’ eyes and those millions who support terrorism.76 73 74 75 76

MacIntyre, (n 13). Robert Merton, Social Theory and Social Structures (free Press 1957) 121 Also https://www .scanmyessay.com/mertonanomiedurkheim accessed 15 October 2017. Anthony Giddens, Emile Durkheim Selected Writings (cup 1972) 113. Daunting statistical evidence of international support for suicide-terrorists is catalogued in Sam Harris, The End of Faith. Religion, Terror and the Future of Reason (Free Press 2005) 125–126.

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Above all, terrorism seems to be wholly about power, particularly personal power, and when globalization takes much away from a proportion of vulnerable individuals, it incites them to seek death for others and death for h ­ imself/ herself in the same incident. If as expected the incident and effect can be electronically multiplied around the world, then the terrorist attains an ultimate, transcendental ` good in the sight of his/her community and gods/ God. It also becomes life affirming in the agent’s mind, worth to them a good death for an even better after-life to come – if that is what is to be believed. In this context death for the terrorist seems a life-force, the very meaning, value and affirmation of life, the courage to be oneself as a terrorist. The action, including suicide, then frees the terrorist agent from, and for, matters of personal conscience in advance, before the rewards of notoriety and martyrdom, followed by an assumed and guaranteed paradise, being perfected, purified, saved. Durkheim wrote in regard to anomie-suicide that “there are no restraints upon aspiration”.77 The agent has made a choice and choices are always of risk. The alternatives are oblivion, senselessness, absurdity, or years of a sense failure in prison. However, further radicalization can happen in prison, with counter-intuitive or possibly real repentance, at leisure. If surviving victims or victim societies, having been shocked to witness evil directly or at a distance, have not lost the power and willingness to recognize the unifying force of good, they can cope with the aftermath and the terrorists’ selfdestructive egoism. This they, we, are doing

Conclusions, Metaphysical and Empirical … what is described as negative peace… the best that people can get.78 sir michael howard, historian.

Conclusions are difficult to reach. The questions running throughout this chapter relate to what globally is good and what is evil. It seems to be evident that terrorists are driven by fear and anger, but also by fearlessness and courage. Their identities seem to be threatened by acute uncertainties about their personal sovereign power to make choices, to win approval and be obedient to their communities. If they have notions about

77 78

Emile Durkheim, On Suicide English edition (Routledge 2002) 253. Sir Michael Howard, The Invention of Peace and the Reinvention of War (Profile 2002) 1–2.

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perfection and salvation in the ontological and metaphysical spiritual beliefs – coming from their own personal obsessions, or allegedly from God – then we can understand why some individuals can see their own death as life affirming. Some few are driven by a pathological death-wish, just proving they can overcome powerlessness, by seizing one acute self-conscious moment of power to terrorize so many others. The terrorist’s victims are punished for holding the wrong beliefs – or no beliefs at all – or the wrong sort of sovereignty of power in the perceived evil of globalization. Above all many terrorists seem to fear the globalizing process of human homogenization, including via the internet, with their own obsessional and seemingly uncontrollable internal supra-sovereign power incorporating whatever is their understanding about the purpose of life. Salvation for humankind may truly come to reside physically in the cosmological, pro-creational lifeforce in human beings and the inter-generational, interbreeding processes over time. This sort of future today’s terrorists, particularly embroiled in the crisis in Islam, cannot accept. The chapter title conjures up a possible global crisis of terrorism continuing for up to the century at least; with good versus evil; globalization versus sovereignties versus individualism; and consciences versus consciences; with terror as symptom and cause. The century may be defined by future historians as social breakdown for a while, proportionately on the grandest, global scale even if numbers of dead and physically injured are small. Yet if not “drowning in complexity”, as Cooper maintains, globalization embraces paradoxical metaphysical forces which will never be truly understandable. A final darker question remains about the possibility of globalization being chaotic and terminally self-destructive, its own self-devouring behemoth. Even the most powerful leaders in history have been, and continue to be today, prone to pressurizing, frightening, even terrorizing their enemies and in many cases their adherents. The possibility of terminal nuclear release – including at the hands of terrorists – may in the event be connected with the aberration and confusion of leaders, rather than humankind’s deliberate self-annihilation and global suicide.79 The ultimate test of conscience and integrity of good in humanism and many religions is love your enemies enough and you won’t have to die for your friends.80 All life is experimental; much is counter-intuitive. In the meantime mysterious forces continue to operate.

79 80

Guardian 3 January 2018. “The size of Nuclear Buttons” of the USA and North Korea. Matthew 5, 44 and John 15, 13.

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Figure 14.1



Sunday 11 January 2015. Following the Charlie Hebdo murders the author witnessed the million-strong silent march in Paris, and was moved by the complex “Je Suis Charlie” message, recognizing symbolically the depth of the troubles besetting humankind in our century. Keen-eyed readers might find a near anagram in the first line. ©Patrick Mileham

Appendix. Acts of Terror – Chronology and Classification

Every act that can be classified as an act of terror is unique in time, place and effect. Acts are one category of things, people as individuals and groups are in another category. Motives reside in a third. One classification of motive, predominantly in today’s Western experience is currently strongly linked with Islamic fundamentalism targeting liberal-­ democracies, particularly those of Western Europe. In 2001 the “9/11” coordinated attacks on the World Trade Center, New York and the Pentagon, Washington which caused 2,996 people to be killed and more than 6,000 others injured. Civil aircraft were the weapons used. Four coordinated attacks against commuter trains in Madrid in 2004 killed 191, with about 2000 wounded. In July 2005, four coordinated explosions killed 56 and wounded 784 on the London underground and in buses. Recent incidents against Western countries by mainly Islamic terrorists are detailed below.

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Recent Incidents Since May 2014, beginning with the attack on the Jewish museum in Brussels, Belgium, that nation has sustained four attacks; with one in C ­ openhagen, Denmark: one in Bosnia-Herzogovena; one in Stockholm, Sweden; one in ­Barcelona, Spain; two in Moscow, Russia; four in the United Kingdom (Manchester, Westminster Bridge, London Bridge and Parsons’s Green, London); four in Istanbul, Turkey; seven in Germany and nineteen in France. In some attacks trucks and vans were used as weapons, as well as the normal arsenal of guns and explosives. The most poignant and gruesome attack in France was in June 2016, against the Catholic priest, Father Jacques Hamel, who had his throat cut during mass in Rouen. The most successful, in terms of numbers killed and injured, including suicidal attackers, were the Charlie Hebdo and Porte de Vincennes Paris attacks, in January 2015 (20 killed, 22 injured); Bataclan theatre/ Stade de France stadium, Paris, November 2015 (140 killed, 413 injured); Brussels Airport and Maalbeek metro station, Belgium, March 2016 (35 killed, 340 injured); Istanbul Airport, June 2016, (48 killed, 230 injured ); Nice, France, the lorry attack on Bastille Day, 2016 (87 killed, 458 injured); the nightclub attack in Istanbul, January 2017 (39 killed, 70 injured); St Petersburg metro, Russia, April 2017 (16 killed, 87 injured); Manchester Arena Concert, uk, May 2017 (23 killed, 120 injured); and Barcelona and Cambrils, Spain, August 2017 (23 killed, 152 injured).81 These figures are up- to-date for October 2017. Statistics for imminent Islamic attacks prevented by police and security forces are not openly available, but the same source for roughly the same period quotes that at least twenty-nine plots were foiled by the French authorities, thirteen by the British and, in the first half of 2017, twelve by the Russians. Terrorist attacks of course are much more common in the troubled parts of the world, mixed up directly with civil wars. For example note the Chechen terrorist attacks and hostage-taking within the borders of the Russian Federation at Budennovsk 1995 (at least 140 killed) and Beslan in 2004 (330 killed). It is evident that the expressions terror attack and terrorism are often used by illiberal government to describe all forms of violence and conflict within their borders, particularly during civil war. For example the Syrian and now the Turkish authorities do so, because it is easier to call their internal enemies terrorists than opposition forces, freedom fighters, insurgents or guerrillas, who anyway claim to use force against governments and their security services 81

These figures, reported by 156 different open source references, are summarized by ­ ikipedia, accessed 27 August 2017. W

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legitimately in the just war tradition. Currently Large numbers of people are killed and injured on a weekly and monthly basis in Iraq, Syria, Afghanistan and Pakistan, and in the fractured nations in Africa and elsewhere. In those regions the statistics multiply a hundred if not a thousand fold. While many of the above acts of terror were coordinated within and across borders by interconnected groups of agents, some were not, being isolated persons in small groups, or individuals inspired by international movements, or indeed self-inspired persons entirely with notions of their own. Of the latter should be included such men as Anders Breivik, the solo anti-jihadist / fascist who killed 77 people in Oslo and a nearby island-youth camp in Norway in 2011 and the Germanwings pilot Andreas Lubiz, who deliberately crashed his airliner into a mountain in the French Alps in March 2015, killing himself and all 149 passengers and crew. With 59 dead and over 500 injured, the 1st October 2017 massacre in Las Vegas by the lone gunman Stephen Paddock, represents a similar instance of the anomie-atrocity of a perverted integrity of senselessness and extreme evil. The supposition is that a high proportion of terrorist agents are suicidal in intent, either because they attach themselves to explosive devices, or they anticipate a shoot-out, suicide seemingly being preferable to capture. Dead or alive in custody, their terrorizing message is perpetuated either way. It seems that the planned incident in the mind of the terrorists, is a deliberate, coincidental, carefully calculated act, demonstrating momentarily their absolute power to turn evil into good in their own calculation. Contrariwise that supposed moment of physical truth can be utterly rejected by victim populations given sufficient resilience and resistance to fear. Classification In this section, one simple classification82 from numerous lists of “terrorism”, looks generically at motives. – – – – – –

82

Political terrorism Civil disorder (e.g. terrorism in full civil-war, narco-terrorism) Religiously inspired terrorism Limited political terrorism (e.g. animal rights) Quasi-terrorism (e.g a variety of uniquely motivated individuals) State terrorism (e.g. authoritarian rule).

https://www.crimemuseum.org › Crime Library › Terrorism accessed 14 October 2917.

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Finally looking at terrorists themselves as unique men and women and “agents of terror”, or “terrorists” – using lethal force to magnify the effect in the minds of others, deliberately and abjectly terrifying them far above normal levels of criminality and fear – a tentative classification is of – Individuals with a pathological desire to kill and harm others for private purposes, declared or unknown (in times past this classification would often fit the description of nihilism) – Individuals entirely disconnected with any other agents of terror, but copying methods of others, and maybe with some declared intent – Agents acting alone or in independent cells, which may be only indirectly inspired and in communication with other terrorists, and – Agents acting together in groups small or large, locally or by direct communication, driven by zeal, and with a direct message that they are performing a greater good for their group, community, nation and in many cases the integrity of their religion. Does terrorism, as mentality and method, and terrorist actions lead to success or failure, of cause and of personal agency? That currently depends on the responses of communities and nations, facing an uncertain future.

Index Abu Ghraib 54, 117 Afghanistan 3, 11, 33, 74, 74n1, 75, 77–78, 78n18, 136, 144, 205, 251, 279, 300 Agamben, Giorgio 161, 161n15, 162, 167 Al-Qaeda 9, 34, 42, 48, 50, 61, 62, 75, 75n6, 76n11, 79n22, 155, 184, 229–231, 233, 238, 242, 259 Aquinas, Thomas 84 Arendt, Hannah 167, 168, 168n21, 168n23, 169–170 Assad, Bachar El- 6, 20, 23, 255n16 Augustine 40, 40n19, 84, 182, 185, 186, 197, 203, 203n11, 205, 269, 269n2, 289n59 Basic Law 101, 101n1, 102–109 Bataclan 80, 207, 299 Baudrillard, Jean 159, 159n11, 162, 162n16, 162n17, 163, 163n18, 164, 167 Belgium 80, 208, 215, 219–220, 222, 264, 299 Boko Haram 9, 158, 238, 280 Bourdieu, Pierre 127–128, 130, 132–133, 139–142, 150 Bundeswehr 100, 102–103, 103n11, 107–109, 108n16, 112, 118, 122, 123, 125 Bush, George W. 124, 183, 186, 218, 225, 228–229, 231–232 Chechen 34, 44, 47, 47n32, 48–49, 49n34, 50, 299 Chechnya 32–33, 47–48, 48n34, 49, 49n36, 50 Christianity 171–172, 175, 175n11, 177, 177n18, 181, 181n28, 181n29, 182n31, 183–185, 187–189, 191, 276n27, 293 cia 2, 79n21, 228, 230–231, 231n21, 243, 246n67 Civilization 42, 151, 162, 169, 170, 180, 276, 279, 281, 281n37 Clausewitz, Carl von 29, 37, 42, 159 Crusade 5, 11, 38, 182–183, 186, 188, 202 Drone 2, 3, 74, 74n2, 74n3, 75, 75n4, 75n6, 75n7, 75n8, 75n9, 76, 76n10, 76n12, 77, 77n14, 77n15, 77n16, 78, 78n19, 78n20, 79, 79n21, 79n22, 79n24, 82–83, 92–96, 96n76, 97–98, 98n80, 99, 198–199,

199n4, 199n5, 204, 225, 225n3, 225n4, 225n5, 226, 226n10, 227–228, 228n14, 228n16, 228n17, 229, 229n18, 230, 230n20, 231–232, 232n24, 233, 233n28, 234, 234n33, 235, 235n34, 236–243, 243n59, 244–246, 246n67, 246n69, 247, 247n70, 247n72, 248–251, 251n2, 259, 261, 261n41, 264, 266n53 Elias, Norbert 128, 151 Emergency 27, 32, 39–40, 42n23, 75, 80, 84, 103–108, 117–118, 120, 200, 263, 263n44 Erigena, John Scotus 26, 26n3 France 1, 35, 80, 116, 167, 263n44, 299 French Revolution 26, 26n4, 33, 51, 63n72, 183, 185 Freud, Sigmund 129, 207, 207n4, 209, 209n12, 210, 210n14, 210n17, 212 Geneva Convention 8, 137, 228, 235, 238n44 Germany 34, 100–104, 108–114, 114n18, 115n19, 116–121, 123, 128, 166, 188–190, 208, 208n6, 221, 299 God 26, 26n, 26n3, 28, 35–36, 38, 41, 163, 176, 180–181, 183, 185, 188, 197, 199, 202–203, 269n2, 270, 283, 288, 289, 292, 296–297 Hamas 40, 40n20, 86, 86n51, 222 Hegel, G.W. Friedrich 146, 153, 166, 213–214 Hezbollah 38 HUMINT 77, 98 Identity 36, 58, 70, 73, 80, 113, 119, 130, 159, 188, 214, 227, 241, 244, 259, 277, 279–281, 284, 286–288, 290–293 Iraq 3, 10–11, 42, 42n23, 54, 55n19, 74, 124, 130, 136, 144, 153, 165, 181, 181n29, 182n31, 186, 226, 226n8, 228–230, 232, 251, 260n39, 273n17, 300 isis 5–6, 9–10, 10n12, 11, 11n13, 11n16, 12, 14–17, 19–20, 23–24, 34, 36, 42, 158, 165, 167, 177, 177n19, 178, 189, 195, 238, 251n1, 260n39, 260n40, 261n42

304 Islam 5, 11, 34, 36, 38, 40, 41n22, 47–49, 63n72, 86, 100, 172, 175, 175n11, 177–178, 184, 187–188, 190, 190n48, 191–192, 193n56, 208, 216, 219, 219n68, 221, 251, 274n20, 276n27, 280, 282–283, 293–294, 297–299 Israel 32, 75n4, 86, 86n51, 151 Jihad 40–41, 172, 184, 189–190, 208, 208n8, 215, 221, 223–224, 260n38, 265n47, 300 Just War 5, 8–10, 10n12, 11n16, 37, 39n18, 42n23, 43, 74, 81–85, 82n29, 94, 95n75, 155–157, 161–164, 170, 189, 202–204, 226–227, 229, 235, 238, 240–241, 249, 253, 259, 260n37, 264, 273, 300 Kant, Immanuel 7, 146, 160, 160n13, 166, 168, 168n21, 272 Libya 39 Livius, Titus (Livy) 25 McMahan, Jeff 5, 5n2, 6–7, 7n4, 8, 8n7, 10n10, 11n14, 17, 89n55, 91–92, 94, 94n71, 156–157, 157n7, 251, 255, 255n18, 256, 256n21, 256n22, 257–258, 260–261, 265, 265n52, 267 Morozov, Nikolai 36–37, 37n15 Nietzsche, Friedrich 46, 166, 207, 209, 209n13, 212 9/11 42, 52, 53, 53n10, 54, 62n66, 124, 198, 204, 207, 214, 220–221, 228–229, 231–232, 251, 260n38, 298

Index Plato 18n30, 26n3, 203, 207–209, 209n11, 211–212, 270n4, 272, 275n21 Police 1, 9, 27–29, 34, 43, 45–46, 50, 79–81, 83, 92–94, 96–98, 101–113, 115–121, 157, 165, 169, 198, 201, 201n7, 204, 206, 216, 258, 294, 299 Post Traumatic Stress Disorder (ptsd)  127, 246 Project Camelot 52, 64–65, 65n78 Red Army Fraction (raf) 185–186, 221 Religion 5, 11n13, 28, 38–39, 49, 171–173, 173n5, 174–175, 176n17, 177–180, 181n28, 182–183, 184n36, 187, 190–191, 192n53, 193, 193n57, 194–195, 274n20, 276n27, 277, 282, 288n, 289n56, 291–293, 295n76, 297, 301 Responsibility 10n10, 12, 15, 57n35, 78, 86, 94, 101, 110, 128, 154–155, 167–168, 168n22, 169–170, 198, 200, 204, 206, 225, 233, 236, 239–240, 251, 253, 255–257, 259, 261–262, 264, 267, 284 Revolution 1, 26, 26n4, 33, 37, 44, 44n26, 45, 45n30, 46, 51–52, 63n72, 64, 65n78, 66–67, 72, 160, 182–183, 185, 199, 213, 249, 280 Robespierre, Maximilien de 51, 51n, 72, 185 Russia 25n*, 26n4, 32–33, 36, 37, 41, 44, 44n26, 45–47, 47n, 48–49, 49n34, 49n35, 50, 52, 63, 154n, 155, 163, 167, 254, 279, 299

Obama, Barack 76n11, 77n14, 225, 225n2, 226–230, 232, 233n28, 234–235, 238, 238n45, 240, 243, 243n59, 245, 247, 249, 264n45

Saudi Arabia 35, 76 Schmitt, Carl 42, 42n23, 42n24, 42n25, 182, 217, 217n56 Somalia 74, 75, 227, 243, 251, 279 Syria 5, 5n1, 5n2, 10, 11, 11n14, 12, 14, 19, 23, 39, 191, 208, 251, 254, 255n16, 260n40, 264, 294, 299, 300

Pakistan 3, 74–75, 75n6, 79, 79n22, 98–99, 227–229, 228n14, 229, 229n18, 229n19, 230–231, 234, 243, 247n70, 251, 264n45, 300 Palestine 32, 38 Palestinian 40, 86, 208, 219–220 Paris Attacks 80, 165, 207, 263n, 299

Taliban 48, 76n12, 78, 147, 240, 242, 280 Terror 2, 5, 7, 7n4, 8, 10, 25–28, 28n6, 29–41, 43–51, 51n, 52, 52n2, 53n9, 54, 54n12, 57, 58n40, 60, 60n56, 61, 61n63, 62, 63n72, 65n75, 72, 74, 78n18, 90, 100, 123–125, 154–155, 157n, 158–160, 160n12, 161, 161n15, 162–164, 169–171, 173n6,

Index 175, 175n11, 176–178, 181, 181n29, 182, 182n31, 183–184, 187, 190–191, 196, 201, 203, 203n12, 204–205, 218, 218n64, 219, 226–233, 237–238, 238n44, 242, 245–247, 249, 266n54, 270, 270n3, 271, 273, 274, 274n20, 295n76, 297–299, 301 United Kingdom 1, 266, 280, 299 United States 41n21, 61, 65, 74–78, 95, 162, 226n7, 251 Values 2–4, 29, 31, 33, 35, 42, 61, 66–67, 84, 109, 117–119, 122, 125–140, 142–145, 148–150, 152, 161, 171n, 184, 192, 194, 198, 211, 217, 229, 248, 270, 274, 277, 284n48, 294, 296

305 Walzer, Michael 6, 39, 39n, 81, 82n29, 83–86, 86n48, 87, 93, 95, 95n74, 94n75, 97–98, 98n80, 156, 156n2, 161, 161n14, 170, 251, 252n4, 253–255, 255n18, 256–257, 257n33, 258, 260, 260n37, 261, 267 Weber, Max 30, 30n7, 185 Wittgenstein, Ludwig 25, 25n1, 27, 31 Yemen 3, 74, 75, 77, 77n15, 78n19, 99, 227, 251, 261n41