A Just War?
Judeo-Christian and Islamic Perspectives
A Conversation with J. Bryan Hehir and
Roy Mottahedeh
Moderated by Alan Berger
American Academy of Arts and Sciences,
Cambridge Massachusetts
December 10, 2001
©
2001 by J. Bryan Hehir and Roy Mottahedeh.
The complete contents
of this transcript are available in PDF format by clicking
here.
On December 10, 2001, the American Academy hosted a panel to discuss
Judeo-Christian and Islamic perspectives on Just War doctrine and how it
relates to the attacks of September 11 and the US response. The speakers were
introduced by the Academy’s President Patricia Meyers Spacks. Alan Berger,
editorial writer for the Boston Globe, moderated the discussion. The speakers
began with an opening presentation. Following these presentations, they
answered questions from the audience.
On the panel was:
Roy Mottahedeh, Gurney Professor of History at Harvard University.
His work has focused on the social and intellectual history of the Islamic
Middle East. His publications include Loyalty and Leadership in an
Early Islamic Society and The Mantle of the Prophet: Religion and
Politics in Iran.
J. Bryan Hehir, currently the president of Catholic
Charities USA. At the time of the lecture, he served as head of Harvard
Divinity School. Professor Hehir’s writing and research engage issues of
ethics, foreign policy, and international relations, as well as Catholic social
ethics and the role of religion in world politics.
OPENING REMARKS
J. Bryan Hehir
Thank you. I appreciate the
chance to be here tonight, and particularly to appear on the same panel as Roy
Mottahedeh. We are given a two-part assignment, as I understand it. And that
is, to locate long and large religious traditions that have thought about the
issues of war and peace and somehow bring those traditions into a living
relationship with the current policy questions that face the United States. And
while, inevitably, some of that will have to be left to the question period, I
will proceed in the following way: I think that when one thinks about the
morality of war and peace, there are three distinct positions that one can
take. I will try to indicate those. Then I would like to trace some sense of
the logic and evolution of the just war doctrine in Christian thought. Then I
will look at three challenges it has had to face over the last fifty years.
This will bring us finally to the contemporary problem.
When one considers the ethics of war and peace, I think that there are three
possible positions. First is the instinctive position that there is no way that
war can fit within the moral order. There is simply an inherent contradiction
between the systematic, organized, purposeful, conscious taking of human life –
which is one way to describe war – and the moral order. This proposition leads
to a position known as nonviolence or pacifism. It is not a position that says
one should never oppose evil. It says one should try to oppose evil through
multiple ways, but not by taking human life, particularly in the systematic
fashion that is warfare.
The second position also places war outside the moral universe, but in a very
different way. It is a version of realism that is captured in the opening
chapter of Michael Walzer’s book, Just and Unjust Wars. Walzer cites a
passage in the Peloponnesian Wars, by Thucydides in which the Athenian
generals, who clearly are more powerful than their adversaries, come to their
adversaries before the battle, and they say: “Come now, let us have no talk
about justice. Let us talk about the world as it is.” Realism. And in the world
as it is, the strong do what they will, and the weak do what they must. The
implications of this position are that there is a moral order that applies to
most areas of human life, but it does not apply to warfare. The nature of war,
the stakes of war, the use of arms to settle conflict, cannot afford moral
restraint. And so the only moral position from this point of view is: when one
goes to war, one fights to win, and then goes back to normalcy. And under
normalcy, one can live within the moral order.
Opposed to both of those positions, which place war outside the moral universe
for different reasons, there is a third position that recognizes that some use
of force is morally acceptable, but not all uses of force are morally
acceptable. That is the essential argument contained in the so-called “Just War
Doctrine.” The essential argument here is that the only morally legitimate use
of force is a limited use of force – limited in its purposes (not all reasons
justify war), limited in its methods (not all ways of fighting war are morally
acceptable), and also limited in its intention, in terms of the inner logic
that drives the war. That is the third position, and it is that position that I
would now try to summarize.
Where does that position come from? How has it evolved? And how does it relate
to the present state of the question in terms of US policy? The position
normally is understood to be rooted in the 5th century with
Augustine of Hippo. There were versions of just war in classical Roman thought
that preceded Augustine, but what I call the “Augustinian move” is the
fundamental place from which the Christian just war doctrine begins. Augustine
was aware that he belonged to a religious community in which the founder of
that religious community instructed followers in various ways to turn the other
cheek, go the extra mile, when asked for your coat, give them your cloak. And
the model of Jesus’ own life was: faced with the power of the Roman Empire, he
did not resist it, even though the trial was regarded as unjust. Augustine
understood this tradition but still asked the question, how does one live that
ethic in the context of the world as he understood it. And in the world as he
understood it, there was a certain “realism” in Augustine’s view of history.
And as he put it, “war is the result of sin, and war is the remedy for sin.” In
other words, the reason we have war is because people do sinful – that is to
say, morally wrong – things. They aggress against other lives or other
interests. And therefore, in a world in which that is possible, then war
becomes, at the edge of the moral universe, legitimate. War is the remedy for
sinful action. When everything else fails, one can resort to force in the name
of protecting human life, key human values, and a basic order of existence that
is necessary for human dignity. Beginning from Augustine, therefore, you open
the line where it is possible to think about a limited use of force that fits
within the moral universe.
The evolution of that teaching then moves from Augustine in the 5th century
through the high middle ages, where it is best represented by Aquinas, who
really does not add much to Augustine, but simply his own authority. But then
there is a crucial move in the 17th century. By the 17th century,
this ethic now must confront the modern, sovereign state. And that sovereign
state acknowledged no higher authority, either secular or sacred. So the 17th
century is a time of very creative adaptation of this ethic, because the people
want to preserve some sense of limits on the use of force. It is this period of
time in which Hugo Grotius, the famous Protestant jurist, joined with, in a
sense, the two Catholic jurists, Fransiscus de Victoria and Fransisco Suarez,
to readapt the ethic. And the way they readapted the ethic is that rather than
asking questions of when states can go to war, they concentrate on the question
of how states should fight the war in order to keep it limited. From the 17th
century, the next step is to the 20th century, and I will come back
to that later. So the evolution of the doctrine is the 5th, the 13th,
the 17th and the 20th centuries.
Now what is the structure of the ethic? Essentially, once Augustine opens up the
possibility that some use of force is morally acceptable, we are faced with the
question of what kind of moral reasoning should one use, if you will, to fit
within the moral universe. And the way the ethic is usually explained is: one
begins with the burden of proof on anyone who says, “It is now time to kill
people.” In other words, there is a presumption against the use of force, and
the burden of proof rests on those who seek to override the presumption. The
overriding of the presumption is done in the name of what is technically called
a moral exception. An exception is a defined set of circumstances whereby your
normal mode of activity, as implied by the moral order, is overridden because
new circumstances create a new moral situation. So, faced with the fact that
people’s lives will be taken, and there is no reason for that, faced with
massive human rights violations (think of genocide), then the argument is: this
creates an exception where war becomes morally acceptable.
Once things get to that point, then one has to ask how to define a justifiable
exception. How does one distinguish between an exception and a rationalization?
One usually asks three questions: Why is war necessary? When is war necessary?
How should the war be fought? The why question is the so-called just cause
question. For what purposes is the exception validated? The when question says:
war is a very blunt instrument of achieving justice or the moral order. So it
is necessary to keep all kinds of restraints on it, including,
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proper authority: not everyone can go to war;
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last resort: one ought to try other things;
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moral possibility of success: don’t go to war unless one can put ends and means
together in a successful formula;
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finally, proportionality: don’t do more harm than the evil already being done.
Proportionality was the kind of question we thought of in the 1950s. Some argued
that the Soviet invasion of Hungary should have been resisted on moral grounds,
but not with nuclear weapons. We did not want to go to nuclear war to solve the
Soviet invasion of Hungary. It was just disproportionate. One had to abide the
injustice.
The final question is how. The how question says: if war is to be limited, two
principles need to be abided by. One, it is never permissible to go to war
against a whole society. Ever. It is only permissible to go to war against
those who have purposefully, consciously carried out the evil that needs to be
resisted. And then, finally, once again, one cannot even use tactics in way
that cause disproportionate harm.
This set of configurations of rules and principles is designed to follow
Augustine. Some uses of force are morally acceptable, not all, and these are
the kinds of principles that shape what one means by a limited use of force.
Now in the 20th century, there have been three major changes that
required the ethic to adapt. The first was the nuclear age. When the ethic says
that the only legitimate use of force is a limited use of force, what does one
do when war becomes almost total by definition? That argument is for another
seminar, but it took many of us 30 years, and we never were very satisfied with
the answers, but we kept at it. The second kind of challenge arose in the last
decade: humanitarian military intervention. Faced with the nuclear question,
one wanted to dissuade states from using force, to set limits on force. In the
last ten years, people have tried to use moral reasons to obligate states to
use force to stop genocide. And so it was a real shift for those of us who had
worked at the question for many years. People were now trying to open up
channels to force states to accept an obligation to spend blood and treasure on
resisting evil.
And now we face the terrorism question. It is different than the nuclear age. It
is different than the question of humanitarian military intervention. First,
this ethic that I have described is a state-centric ethic. It was designed to
establish the criteria under which states could use force and for how to set
limits on state-power. The nature of terrorism almost inevitably involves
non-state actors that are carrying out the terrorism. It is a different kind of
question. Second, this ethic is based on a sense of limits. And the idea was to
introduce shared limits among the adversaries. That is in fact what we did in
the deterrent structure of the nuclear age: shared perceptions of limits on
what each side would do. But terrorists by definition cannot observe, usually,
the classical limits. Terrorists cannot launch major armies in the field. And
so they look for soft targets. They look for the very targets that are ruled
out by the ethic of war: civilians, cities. And then finally, the goals of
terrorism vary. Some versions of terrorism have limited political goals. But
what one faces today, I think, is a very different thing than classical
political goals. I do not think Osama bin Laden gets terribly upset about the
US position at the World Trade Organization. He may get upset about Middle East
negotiations, but minor changes in US policy are not what move him. What moves
him are much larger questions, I think, of a nature that is not simply limited
political objectives. So, terrorism poses a very different kind of challenge.
What can one say about US policy? I will say it quickly and then probably have
to defend it in the question period. Was there just cause for using force? I
think a direct attack on the sovereign territory of a nation-state in which
civilians are the primary target of the attack constitutes the kind of
aggression that the just war argument seeks to oppose. I think it constituted
just cause. Secondly, I think the pursuit of the war is more complicated. On
the whole, there has been an enormous effort not to directly target civilians.
Civilians have been killed, but have not been directly targeted. But in all the
wars, from Gulf War up until now, there has been a noticeable, conscious effort
not to target civilians. But given the nature of US power – highly focused
airpower – you are always going to have troubling questions about
proportionality. And I think there are some proportionality questions in terms
of the air campaign. I will be glad to go into some of those later, but in
other words, I am faced with a situation where I think the cause is just. I
think proper authorization has been given, at least implicitly, by UN
resolutions. I think the possibility of success, at least in the case of
Afghanistan, is real. I think the noncombatant immunity, of protection of
civilians, has been observed in terms of a principle of the way the war was
fought. I think one can make arguments about proportionality, and I will be
glad to look at those.
Roy Mottahedeh
Thank you. My role here will be more descriptive than prescriptive, first
because, unlike Bryan Hehir, I am representing a legal tradition which is not
my own. And second, I am representing a tradition which is unsettled. I will be
talking, therefore, descriptively about the development of the Islamic ethics
of war. But I want to emphasize throughout that Islam is what every Muslim says
it is. And it cannot be said often enough that there is no structure of
religious authority in the Muslim community. People keep expecting someone to
speak for Islam, and I feel sure that in the near future, no one will be able
to do so with anything approaching universal authority.
First, let me say some things about the general dynamics of creating a moral
argument in Islam. There are always certain problems when one has discussions
based on scriptures. If the Koran is the revelation of God, where does its
meaning reside? How do we get to the meaning? Does anyone have more authority
than anyone else to interpret its meaning? To some extent, this is true of all
Abrahamic religions, but it is particularly a problem for Islam. For, whereas
Christians understand the great self-revelation or self-presencing of God to
mankind to be in the birth of Jesus, for Muslims, that which God has sent to
mankind is the Koran. Hence, most early Christian schisms are about the nature
of Jesus. Most early Muslim disputes are about the nature of the Koran.
Now, I mentioned that we want to know who are the guardians of the word. In
Islam, as I said at the beginning, there are no clear guardians of the word.
However, by the 8th century, there began to develop a class of
people who, by the 10th century, are clearly apparent in Islamic
world – people we call the ulema, the learned men who are, to some
extent, the guardians of a scholastic tradition of the interpretation of the
word. I want to say that, basically, the theory of war that they worked out
continued until the 19th and 20th centuries. It was then
transformed internally among them, but at the same time, their activities came
to seem less and less relevant to most Muslims.
The Islamic conquest began more or less haphazardly. Muslims found the
Byzantines and the great Persian Empire next to them to be less strong. Their
forays turned into armies of conquest. About 100 years later, Muslims found
themselves on the defensive. They had reached the limits of their expansion,
and the Byzantines were able to defeat them, as could the Turks in Central
Asia, as did Charles Martell in Europe. So, at this point, a discussion began.
Does the tradition oblige continual warfare? A wide array Koranic verses on
warfare exists. With the formation of a scholastic tradition in Islam it was
said that verses that were considered to be chronologically revealed latest in
the life of Mohammad abrogated all verses before them. As a result, many verses
which advocated choosing peace over war as a way of settling conflicts were
abrogated by a single verse which some call the “Verse of the Sword.” At the
same time, Muslims assimilated the ideas of the imperium, the universal
god-given right to rule, which characterized both Sassanian and Byzantine
political thought.
Now, orientalist scholarship – and by that I mean scholarship by non-Muslims who
are studying Islam from the outside – by and large believe that Mohammad
intended only a kind of struggle – and jihad means struggle, including
armed struggle – to conquer the peoples of the Arab peninsula. Nevertheless,
the more aggressive belief in an imperium, a universal state, where there would
not necessarily be an entire Muslim population but a Muslim Rule remained a
theoretical possibility to Muslims and remained a possibility in classical
Islamic law. It disagreed with other aspects of the law, and therefore, the law
leading to war, the jus ad bellum, which Professor Hehir has so well
explicated here, became rather messy in classical Islamic law.
In contrast, the law as to how people should behave in war – jus in bello
– was rather elaborately worked out and quite humanely defined: no women, no
children, no noncombatants, no property, not even the “smallest tree,” as it
says in the law, should be harmed. Equally, in separate areas of the law – the
law about highway robbery, hirābah – there evolved an idea that to
attack people suddenly and without warning was wrong, cowardly, did not allow
people the chance to change their minds, it could only be for bad purposes, and
so forth. In this way, a law developed which actually has a great deal of
relevance to terrorism. It is surprising how seldom it has been evoked in
recent discussions.
And a third source of law developed which has to do with the universal human
responsibility to rescue other people. It can be called the “right of rescue.”
In Arabic, it is called the “right to command the good and to forbid the
wrong,” and it is an individual obligation in Muslim thought. The individual
has a responsibility to forbid what is wrong. Interestingly, in this particular
law, all the aspects of what we would consider just war theory in modern
Western law – that is, having a just cause, a just intention, probability of
success – are discussed elaborately.
The curious, and rather sad, thing is that all three of these aspects of the law
were not melded together into a coherent body of law. However, the high
scholastic tradition did undergo a transformation in the 19th and 20th
centuries. In the 19th century, the British wanted to abolish
slavery all over the world. Muslim law accommodated itself to this. And in the
20th century, as early as the 1960s, partly under the influence of
the formation of the United Nations, a high scholastic tradition transformed
itself to say: we are now all partisans of a treaty. We no longer speak of “the
abode of war and the abode of peace” (something that did not arise in the time
of Mohammad, but came a century later). On the contrary, we are all in the
abode of treaty – dar al ‘ahd as it is called in Arabic – because we are
all signatories to the Charter of the United Nations. In the 1960s, a quite
brilliant book was written by perhaps the most important living Sunni jurist,
Wahba Zoheili at the University of Damascus, in which he says that the jihad
or struggle is now only a struggle against the distortion of Islam. The
real meaning of the struggle is not a warlike struggle, but the struggle to
convert. He thus offered a complete reinterpretation of the high tradition, and
many of the ulema accepted his conclusions.
Nevertheless, there was also the development of a contrary tradition which
really is well represented by Ayman Zawahiri. He is the right-hand man of Osama
bin Laden, and really the most intelligent person, as far as I can figure out,
in that circle, and probably the author of most of Osama bin Laden’s response
or fatwa. He represented a new generation. His grandfather was a sheikh
of Al-Azhar, one of the great positions in the old scholastic establishment.
But he himself was a surgeon, not trained at all in the religious disciplines.
He presumably thinks to himself that: “I can interpret the law as well as my
grandfather. I can just sit down, read the book and come to my own
conclusions.” He is really typical of a whole generation of people who no
longer respect the scholastic tradition. In the fatwa co-signed by him
in 1998, after the failed US attack against the al-Qaeda camps.
He says, in essence: “Yes we know about the scholastic tradition, but we follow
what we like in that tradition.” The fatwa names several pre-modern
jurists, without actually recounting their arguments, and finally quotes one
jurist, Ibn Taimiyah. He explains in effect that: “This jurist says that in the
worst case, the person who is defending himself against armed attack or an
assailant, has a right to strike around him with any kind of force necessary to
defend himself.” In other words, a theory had been built – which only finds it
culmination, actually, in this particular circle – that people in the Muslim
world who are true believers are involved in hand-to-hand combat with the rest
of the world. Therefore, any terrorist act is like striking back at an
assailant in such a hand-to-hand combat.
As the fatwas from Osama bin Laden continued, and more people gathered in
his circled, or maybe in the circle of Zawahiri, additional accusations about
the million supposed children believed to have died in Iraq as a result of the
American blockade, and about Hiroshima and Nagasaki, arose. Who are the
Americans, Osama bin Laden’s followers ask, to talk about collateral damage?
I will only one very brief prescriptive comment. I wish we had announced every
day of the war that we would stop the bombing the minute Osama bin Laden and
the people representing his entourage were surrendered. I don’t think he would
have been surrendered, but I think it would have strengthened our moral
position immensely. The US made such a statement at the beginning, and I think
it might have even strengthened our moral position to have made specific
statements about who would try them, that they would be given, for example, to
the court in the Hague, where there are Muslim jurists. I do not think we would
have avoided the war, but I think it would have given the US a clearer moral
high ground. And secondly, I wonder if it is not better to think about this as
a moral cause rather than a moral war. I have never been quite sure of the war
rhetoric. I know that it is a very good way to rally people and it puts us in
contact with our heroic past and similar dastardly deeds, such as Pearl Harbor,
but I am not sure that it is really a correct analogy. At that point I will
stop.
QUESTIONS & ANSWERS
Berger: Thank you very much. I am going to start by asking one question
of each speaker and then we will throw it open to all.
Let me ask, on the question of the probability of success in Christian
tradition, Father Hehir, what are the grounds used for that category? That is
to say, is it a matter of compassionate concern for one’s own people and/or the
other side, and therefore moral, or is it pragmatic? And how would such an
assessment be different from, for instance, elements of the Powell Doctrine –
that one needs to have a very clear sense of what the political objective is in
a war, how achieve that end, how to get out, and, in his case, how to preserve
the integrity of the institution of the army (that is probably not a
traditional Christian concern)?
Hehir: I do think – and Michael Waltzer (again I will refer to him) has
made the point –that the language of ethics and the language of strategy are at
least analogous. In other words, you find a lot of similarity if you read
strategists just straightforwardly and then if you read moralists. They are not
identical by any means. And indeed, the trick most of the time, when you are
doing the kind of thing that I do, is to try and make sure that the language of
strategy does not overwhelm the language of morality. But there is a kind of
inner logic to the two. In terms of the criterion of success, there are
different ways of thinking about the rationale behind it. One way to think
about it is that war should not be used fecklessly; force should not be used
fecklessly. That is to say, you should not undertake an enterprise which
involves at its very heart the conscious, purposeful taking of human life if in
fact you do not have any way to relate ends and means. You are simply going to
be killing people for no purpose whatsoever. There was a way in which, in the
midst of Vietnam, to a lot of people, that is what it looked like was going on:
that we were killing people to save our reputation, or to save some vision of
global struggle, but there was no purpose, there was no endgame to it, there
was no connectedness to it. And so, on the one hand, moral possibility of
success is an argument against using force without purpose, without rational
connectedness of ends and means. The second understanding of moral possibility
of success is that, particularly, political authorities, who have the right and
duty to declare war, should not send people to death needlessly – in the sense
of suicide, for example. For example, I have heard people in the 1970s and 80s
make the argument that all the criteria for just war would have worked for the
black population in South Africa, except possibility of success – if the blacks
were to take on the South African army, they would be slaughtered. So you have
all these kinds of arguments, but no possibility of success. That is a second
reason. First, connect ends and means, and second, be sure of the possibility
of success. Now there is a limiting principle here. This is usually referred to
as the moral possibility of success. It does not mean that war has to be a sure
thing, or that every time you use force you know you are going to be
successful. There is another element here. It is the kind of thing you saw in
the Polish Ghetto, where people say, “In the name of certain values, I will put
my life on the line, even though there is virtually no chance I am going to
succeed.” So that is a limiting condition on success, but the heart of the
argument is that you do not use force without purpose, without consideration of
what one might call the virtue of prudence.
Berger: Thank you. For Professor Mottahedeh, this is perhaps an
idiosyncratic question, but it has been bothering me for some time. There have
been voices I have heard, quotes from scholars in the Islamic world, saying
that Osama bin Laden certainly does not have the authority to issue the fatwas
he has. However, as I understand it, his primary reason in the 1998 fatwa
for the virtual declaration of war against America has to do with the presence
of non-Muslim troops – and he is particularly bothered by female troops – on
the soil of Mecca and Medina. What is the reaction generally in the Islamic
world and among contemporary Islamic scholars to that as a reason?
Mottahedeh: I don’t know that he has specifically referred to female
troops, although I am sure he is bothered by their presence. As to the question
of authority, just as Professor Hehir has said that you have to have justly
constituted authority in the Christian world, so in the Islamic scholastic
tradition you have to have justly constituted authority to declare war. One of
the things that Osama bin Laden keeps saying is that for eighty-some-odd years,
there has existed no Islamic polity. So what he is in a sense saying is that,
“I have the authority.” But sometimes, in fact quite frequently, he uses the
strange ploy of saying, “I am working in the only real Islamic state of the
world run by Mullah Omar,” and he calls him the Commander of the Faithful. So
he more or less is hiding behind Mullah Omar to say that he is working under
the aegis of the only justly constituted authority. Mullah Mohammad Omar, by
everybody’s count, is an extremely uneducated fellow. Osama bin Laden, even
with his education in engineering, is probably better acquainted with the
Islamic scholastic tradition. So it is strange that he has to defer to him. On
the second question about Saudi Arabia, it is clear, if you look at the fatwa
– in Osama bin Laden’s fatwa, he begins with a preoccupation with Saudi
Arabia and only secondarily with Palestine, although the question of the
Palestinians is always there, and the preoccupation with Palestine grows as he
reaches for a larger audience.
Muhammad supposedly said on his deathbed – and there are two versions of this –
“Clear the Arabian Peninsula of non-Muslims” or he said, “Clear the hījaz
[the province of Mecca and Medina] of non-Muslims.” Overwhelmingly, tradition
has understood the Prophet to have said the second. There was a huge Jewish
community in Yemen right up until 1947. There is still a small Jewish community
there. Nobody has ever challenged its right to be there. But this change has to
do with the evolution of a modern peninsular-wide sense of Arab Muslim
identity. It shows bin Laden to be a child of the polity of the Saudis that saw
itself as special guardians of Mecca and Medina, and somehow different from
every other Muslim polity.
Among his fellow Saudis there is a lot of sympathy for this complaint.
Berger: I have one follow-up to that. Is there a difference in how that
particular cause is viewed in the Shia world and the Sunni world?
Mottahedeh: There is only one Shiite nation in the world, and that is
Iran. The Iranians are not particularly worried about the presence of American
troops for any reason except their own safety. With American troops in Arabia
and in Afghanistan they feel surrounded
Berger: Thank you. Now, if you would like to come to the microphone and
ask questions, feel free.
Question: I am not quite sure from your presentation, Father Hehir, the
difference between moral exception and rationalization, especially in the case
of US strikes against Afghanistan. Why do you think the cause is just? And how
would you explain the justness of this cause to a Muslim both in the US and
abroad? And finally, before the strikes started at the end of August, did you
argue for or against the use of force, and has that view changed?
Hehir: I think just cause is fairly narrowly located in this case, and it
is due to the attack that took place and the promise that Osama bin Laden made
that there would be other attacks. So I see the use of force as a deterrent. It
is a response to the attack and a deterrent against future attack. And I think
that is a legitimate moral use of force. If you are promised that there could
be large-scale damage done to your population, that limited use of force is
acceptable. How would I explain it to a Muslim? I think there are two broad
areas, whenever you deal with the ethics of war. One is the cause and rationale
and policy issues that go around it – I suspect that that would not be an area
in which you could be very convincing, at least to many Muslims, because large
arguments will be lodged against US policy in the Middle East or other
policies. But second, I think on the means question, I could get someplace.
First of all, the way the debate goes in the United States about “Was this
attack due to policies the US pursues or patterns of US actions?” I think there
were loads of things wrong with US foreign policy before September 11 that
ought to be corrected and I think there are loads of things that are still
wrong that ought to be corrected. I don’t think any of those things justify a
direct attack on those two buildings with civilians in them. And the way I
would try and find common ground with Islam is precisely to pick up the point
that Roy made, that there is an extended area of Islamic ethics on war on
means. Part of the problem usually, with terrorism – not always, but usually –
is precisely that it finds it hard to stay within the context of means, in
terms of who gets attacked and under what circumstances.
Did I advocate going to war against Afghanistan before the attack? No. I thought
there were loads of different questions regarding Afghanistan. The main thing I
would say about Afghanistan before the war was that the United States did not
live up to responsibilities that I thought it had to do something about
Afghanistan after the Soviets left, but I did not see reason for war. In the
same way that I would not have advocated the use of force against Saddam
Hussein until he invaded Kuwait. Once he invaded Kuwait, that constitutes
aggression across a national boundary. I think that is an issue of
international order, and I think you need to respond to it.
Question: I had a couple questions. One is about Palestine. Are there
ways that Palestine can justly use force against Israel, considering that it is
not a state? Does Arafat have the authority to declare war or is it a smart
decision not to call it a war when they are contesting land? The other question
is the morality of the draft under the just war framework: Why is it morally
prohibited to attack noncombatants of your adversaries and still responsible to
send your own somewhat innocent citizens into combat and potentially death.
Hehir: Let me take the second question first. The reason why you cannot
attack noncombatants or civilians, or the reason why you cannot go to war
against the whole society, is rooted in the very first step. Making the
argument that war fits within the moral universe is not an easy case. By
nothing I say do I want to communicate that this is a self-evident judgment,
that war fits within the moral universe. I think it is a tough case. I think
you have the deck loaded against you – particularly if you go beyond the moral
universe and say you fit within a religious tradition that is wider than the
moral tradition that holds all kinds of values about turning the other cheek
and going the extra mile. This is not an easy case to make. If you are going to
be able to make the case that war fits within the moral universe, and maybe
within the religious universe, it has got to be a very narrowly, precisely
defined argument. And I think that narrowly defined argument is that people
embodied in political communities do things that are objectively wrong. Call it
aggression for lack of a better term. If you make the case that you have a
right to stop aggression in the moral order, then only those who commit the
aggression become subject to attack. Therefore, you cannot attack a whole
society. So this is the argument against not attacking civilians. It goes right
back to the fundamental rationale. In other words, by attacking civilians
purposefully you threaten the whole rationale for the ethic, because you are
now involved in unlimited war rather than limited war.
Secondly, what about the draft? The argument that war can be undertaken in moral
terms is because “the common good requires it.” That is to say, there are moral
values being violated. The argument usually goes that political authority has
the right to defend the common good, and included in that right is the
expectation that it can call citizens to minimal civic duties – minimal not
meaning small, but meaning basic. And that is what the draft is about. I think
you should make provision for conscientious objection, but the draft is about a
sense of loyalty and belonging to a political community, and understanding that
one has certain obligations to it. The draft is often put in the same category
morally as taxes. We have responsibilities to a political community to
contribute to its welfare.
The first question was: do Arafat and the Palestinians have the right to use
force against Israel? You would have to distinguish the cases, it seems to me.
In principle, I don’t think it has the right to use force against Israel just
because Israel is Israel. Obviously, there are contested issues since 1967
about boundaries, territory and property. You could make a just cause argument
on that front. You could not make a just cause argument and then combine it
with means that are illegitimate in the same way that the Israelis, having a
right to defend certain areas and territory, cannot defend them using unjust
means.
Question: I will direct this question to Professor Hehir. You both talked
about the moral proscription against causing civilian casualties, and yet in
every war that I am aware of in this century, we have done precisely that. And
the reason we have done it is because there is another moral assumption, which
is that the lives of our troops are more valuable than the lives of the
opponent’s troops, even though in both cases they are 18-year-old kids, and
they are innocent in that sense. But there is an implicit – and sometimes
explicit – understanding that the life of one American soldier is infinitely
precious compared to the lives, not only of the opponent’s soldiers, but also
of their civilians. And therefore, we dropped the atomic bomb on Hiroshima. And
therefore, we bombed Vietnam from an altitude of 35,000 ft, where you could not
possibly distinguish between enemy troops and civilians.
Hehir: There several necessary distinctions we must make, and you have
just highlighted one that we need to make more precisely. I would not say that
it is a moral indictment of war if citizens get killed. It is a tragedy that
citizens get killed. The moral indictment is when citizens get killed as a
result of being purposefully targeted in the course of the war – when there is
a purposeful intent to take civilian life. That was true at Dresden. That was
true in the German bombing of London. That was true in Hiroshima. George
Bundy’s really remarkable history of the nuclear age has this interesting
chapter on the decision to drop the atomic bomb. And he says that when the time
came to make the decision about Hiroshima, no one, absolutely no one in the
upper reaches of the American government even raised the question about
attacking civilians. He said that the reason this was the case was that that
barrier had been crossed already in Dresden and Tokyo. It highlights to me the
enormous question of keeping alive moral restraints. Because if you do not keep
them alive – in the policy discussions, in the minds of citizens and in the
minds of policymakers – then that is when the logic of strategy overwhelms the
logic of moral argument. So, I would not want to say that every time a civilian
gets killed, it is morally wrong. I would say civilians a) should never be
directly targeted, and b) their lives should be preserved insofar as it is
possible under the criterion of proportionality.
Your other question – do we kill civilians because we always value American
lives more – I would go about in the following way. I think every life is of
infinite value. Therefore, you only can kill when you have an explicit
rationale as I have tried to lay out. Secondly, it is the responsibility of
political authorities to try to reduce the casualties on their own side.
Thirdly, that goal of protecting your own troops must be pursued within the
context of a set of other restraints. You cannot protect your own troops at the
price of consciously killing civilians. This is why the bombing of civilian
centers in the name of, for example, protecting against your own casualties,
would be wrong. At the same time, it is not wrong for political authorities to
try to protect their own troops. But they have to do it within limits. You then
get into very large discussion about how you do that. I have had people in
class in the last two years who were pilots in Kosovo who object strenuously to
the argument that if you bomb from 15,000 ft. or 30,000 ft. you are less moral
than if you bomb from 5,000 ft. Their argument, which is empirical and not
moral, is that at 15,000 ft., generally immune from anti-aircraft fire, they
can see the target, whereas at 5,000 ft, flying at 700 mph, they cannot see
anything. But that is an empirical argument and not a moral argument.
Question: The question I would like to address has to do with the issue
of harboring terrorists, going after those who harbor terrorists, who give
protection to terrorists. This is a problem certainly with respect to
terrorists that are nongovernmental. And it comes up as a problem, it appears
to me, in dealing with the targeting of the Taliban – the ethical problem of
dealing with the targeting of the Taliban – but also in future situations in
which the United States might feel compelled under the Bush doctrine to go
after those who harbor terrorists. What kind of a problem is that for the just
war ethic and how can that be dealt with, either in the Islamic tradition or in
the Christian tradition of just war?
Mottahedeh: Well, it is very interesting. During the Iranian hostage
crisis, I wrote an article about why, from the point of view of Islamic law in
general and Shiite law in particular, Khomeini should behave in a slightly
different way. And it has to do with the principle, which is very strong in
Islamic law, of “safe conduct.” If someone comes to your territory, even on the
mistaken presumption that they have safe conduct, and it is found out that they
are not wanted, they are to be led to the borders without harm. So, that is why
I said that from the point of view of the Islamic moral dimension, I think it
is terribly important that we continually announce that for the surrender of
Osama bin Laden and his entourage, we will cease any hostility toward any
portion of the Afghan people. I think that was one of the principles that
should have protected our diplomats in Teheran. Safe conduct is also one of the
interesting ways in which Islamic law was violated on September 11th.
Anybody who has entered the United States with a visa has absolutely no right
to do any hostile act to the United States. So the majority were violating the
Islamic law as to the conditions of safe conduct in even this very primitive
sense.
Hehir: You really have to reshape the ethic when the nature of war
changes or the nature of the challenge changes. That is very clear in the
nuclear age. There is a re-doing of the ethic in order to think about questions
like deterrence – which is not how you fight the war, but what you do when you
are not fighting the war. I think there is the same kind of thing going on now.
When you look at the kind of policy problem we face, you can take the
president’s definition of it to start the discussion. You are facing a
transnational terrorist network. His argument is that he is going after the
network and going after the states that harbor the network. I think you have to
break that out into 3 different categories and test it out in different
situations.
First is the actual group of terrorists themselves. What kind of evidence do you
show the world that they in fact fit that definition? Evidence, here, I think,
is really important to the credibility of the moral argument – evidence of what
you are talking about.
Second is the relationship between the terrorist group and the state. I think in
Afghanistan, the case is fairly clearly drawn. I think you could draw credible
links in Afghanistan. Beyond Afghanistan, I think that question is going to get
much more complicated. For example, if you say there is a state and a terrorist
group in the state, to automatically say that state is harboring terrorists
seems to me to be a jump. They may be putting up with what they cannot get rid
of. They may know or not know a lot about what is going on. Think of Lebanon in
the 1970s. On Lebanese soil, there were loads of terrorist groups. The idea
that the state of Lebanon had the capacity to do anything about that, I think,
is very problematic. So if we have a “Lebanon” case again, what are you going
to do with that? There are other situations like the Philippines, where clearly
we are not going to say that the state is at fault, but you might argue that
there is a “terrorist group” linked to al Qaeda in the south of the
Philippines. So I want to distinguish between the “terrorist group,” the state
involved, and the connection between the two.
And even if you can define that linkage precisely, there still is the third
group – wider civil society, which cannot be swept up either into the state or
the terrorist group. And so, once again, you are back to noncombatant immunity
and civilian society.
The final point is that the argument about what is next after Afghanistan, it
seems to me, is a highly, highly complicated, problematic argument. You are not
going to take this show out on the road and start moving through 60 countries.
You would become international disorder in the name of fighting for order. So
the question is: what do you do? The Iraq debate is interesting in itself.
There are clearly some people in the Iraq debate who have been waiting to hit
Saddam Hussein for 10 years, and want to use this as the occasion. That seems
to me not to be justified. If you can make specific cases about terrorism,
etc., it is a different question. But it seems to me there is a very large
question about what is beyond Afghanistan and what has been labeled a
“worldwide campaign.” What linkage and what steps?
Question: I have a fairly simple question. In either the Christian or the
Islamic tradition, can terrorism be morally justified? To give some thought to
that question, let me ask, for example, in the situation where a nation with
very great power assaults or puts at risk a nation with much less power, is a
terrorist response considered proportionate? And also, US policy now seems to
regard the development of weapons of mass destruction as a form of terrorism.
Is holding those weapons and using them to establish our military authority
over the rest of the world a form of terrorism?
Mottahedeh: Well, first of all, I would like to point out that we have an
example of terrorism in the Bible. Samson brings down the temple of the
Philistines without any concern for collateral damage, and nobody seems to have
noticed it or criticized him for it. That aside, can terrorism be justified
within the Islamic tradition? You know, a tradition can be put to any use you
want. There was a point at which people said that suicide bombing had something
to do with the traditions of Shiism, because during the war between Iran and
Iraq, many Iranians participated in suicidal attacks and the Shiite Hizbollah
in Southern Lebanon seemed to be inclined to do this kind of thing. And then it
became clear that these attitudes had nothing particularly to do with Shiism.
Such suicidal attacks are currently undertaken by people in the Gaza Strip,
where the populations consists of Sunni Muslims. The Real IRA has undertaken
such attacks without any particular consideration for Catholic doctrine. I
don’t think we should say, “Can the tradition justify it?” Any tradition can be
put to extra work to justify almost anything. But is the learned Islamic
tradition as a whole largely accepting of terrorism? No.
There is a somewhat related
question which has always bothered me, and I feel I do not have an answer for
it. People say, “If nations use atomic weapons, do not other nations have the
right to use the poor man’s atomic weapons, such as biological warfare?” Of
course, I am strongly against the use of both, but I do think we face difficult
moral questions when we assume that we have a right to weapons of mass
destruction but the have-nots have no right either to these weapons or their
equivalents..
Hehir: Definition here is part of the debate that we are in. There is not
a consensual definition of terrorism. People have struggled with it in
different ways. The way I would try and get hold of the question is to try to
go back to some of the categories of just war. Who has the authority to invoke
the use of force? For what purpose? And by what means? Then that gives you at
least neutral terms – terrorist is not a neutral term – to be able to parse out
the argument. For example, if you look at a simple case – simple in the sense
of the tradition – it is: can the just war doctrine (which is usually a moral
tradition which endows the state with the right to use force to protect the
society) become a just revolution doctrine? Is it possible to justify action
against the state – political authority given to someone else? The answer is
yes. Much less work has been done on this question than on just war, but Thomas
Aquinas said that when the government becomes the enemy of the common good, the
enemy of everyone, then the implicit argument is that political authority no
longer rests with the state. Now the difficult question is: where does it go?
If it leaves the state, which group can claim it? And that is where you get
into very difficult arguments. But the point is that it is possible to take the
use of force, which belongs to the state, and take it away from the state
because of the way the state acts. Now that is within a domestic context. You
still, then, are bound by the purposes for which the new group would use force,
and then finally the methods and means.
In defining terrorism, it is perhaps easiest to focus on the means questions and
argue against it from that point of view – to argue against means. As I said
earlier, that is often (not always, but often) where a terrorist action will
proceed, because you can have soft targets, and therefore you can use
unconventional means and soft methods. In this area, terrorism gets ruled out
because I really do think you have got to hold everybody to just means. Now
that raises then the questions of weapons of mass destruction. This does go
back to the question of US policy or the policy of the West and how it is
viewed in the world. My teaching colleague, Stanley Hoffman, has written the
best piece on this question. He has laid out several areas where there are
objective reasons for people to be upset. Concerning the question of weapons of
mass destruction, many people in this room know about this problem – that the
nonproliferation policy is based on an assumption that there are two groups of
people in the world: the possessors and the non-possessors. Then the argument
is made that it is in the interest of the safety of the world to keep it at
least that way and no further - to which Lawrence Freedman, the British
political analyst and historian of war, says that the West’s position on
nonproliferation is like the town drunk preaching abstinence. There is a
certain inner logic here that is not terribly powerful from the moral point of
view – until you press it far enough. If you press it far enough and say,
“Well, in order to equalize the moral argument, we ought to say that everyone
should have nuclear weapons,” then that is going to run up against
proportionality arguments. Thus, I think there is a flawed moral framework to
the nonproliferationist position. There is some moral grounding for using and
trying to take it beyond where it is. And that implies taking down weapons of
mass destruction as much as possible. But if you are not trying to do that,
then the moral fragility of the position shows up pretty radically.
Berger: Could I just add that where there is a nonproliferation position,
it could be moral, couldn’t it, if it is abolitionist?
Hehir: Well, Paragraph 6 of the Nonproliferation Treaty binds the nuclear
powers to at least arms control if not going to zero. But then the problem is:
it has been on the books since 1970, and while there are now some remarkable
cuts, it was a huge problem in the high point of the Cold War, where you were
not doing anything about it.
Mottahedeh: There is some discussion in the Muslim world about the
question of weapons of mass destruction and the ethics of war. And you find
both positions. If Israel has a bomb, why shouldn’t the Egyptians have a bomb?
There are opposing voices that say, as one writer so beautifully expressed it,
that having a nuclear bomb is the heart of whiteness and is something that,
morally, people should abstain from all together.
Question: How does the just war ethic speak to the Israeli government’s
recent decision to drop bombs on certain portions of Arafat’s headquarters in
Gaza City?
Hehir: How does it speak to it? Not easily. I think you have an
escalation of violence on both sides, neither of which fits nicely into the
kind of limits on the use force that would bind actors in a moral universe. I
said earlier that I thought you could make a case that both sides could use
force in the extreme to defend certain things, but not everything. My own sense
is that the fundamental problem in the Middle East at the minute, before you
get to judging tactics, is the willingness of both parties to provide some
sense of a political argument of what they regard as an end result that they
would accept. I think the use of force at the present minute is what I earlier
described as a “feckless” use of force. I don’t mean that people don’t think
they need to use force. I mean, there is very little connectedness between ends
and means in the force that is being used.
Question: You mentioned proportionality in the use of airpower earlier in
the talk. It seems to me that our American way of war changes as our means of
war change, but also that the degree of the use of precision munitions allows
both greater discrimination and the obligation to exercise discrimination. You
said there were arguments against proportionality and I would like to hear that
from both of you gentlemen if I could.
Hehir: The proportionality argument, I would answer in two steps. First
of all, I would say, there has been a remarkable shift on the noncombatant
immunity principle. And that needs to be acknowledged in a positive way. That
is to say, if you take the historical framework from World War II up to today,
one of the things that is quite evident at the level of policy, at the level of
public opinion, and at the level of public discussion, is a very, very steep
learning curve that has been climbed on noncombatant immunity. In other words,
noncombatant immunity was violated in World War II by all the powers, and there
was virtually no public discussion of it or resistance to it. That was the
point that Bundy made in his history of World War II leading up to Hiroshima
and Nagasaki. There was very little discussion of noncombatant immunity during
the Korean War. There was some during Vietnam. And since the 1970s, there has
been a very rapid intensification of the effort within the policy process and
in the public debate so that directly intended attacks on civilians are not
regarded as permissible and sustainable in policy. That is the first point.
Second point is: has that solved all the moral problems on the use of force? And
my point there is no. I think if you take the Gulf War, there was very great
attention paid not to strike civilians. I think it involved rules of
engagement, and I think it involved orders under which pilots both targeted and
flew, and therefore there were real efforts not to strike civilians. But I
think the striking of what I call dual-use targets during the Gulf War –
targets that were both essential for the prosecution of the war and essential
to civil society – raised proportionality questions. If you need take out the
communication system in order to fight the war (which was part of the strategy)
then you have to take out the electrical grids. When you take out the
electrical grids, you take out the water supply and the electrical supply that
keeps that ventilators going in the hospital. The fact is simply to recognize
that while that is a legitimate military target from one angle, it is also an
essential need for civilian society from another angle. Thus, people came away
from the Gulf War with questions about proportionality on that grade. Go to
Kosovo and you find the same kind of question – not on the targeting of
civilians, but on some of the targets in Belgrade that were used in a coercive
way to get Milosevic to submit. When you turn to Afghanistan, my question is
due to ignorance. When the New York Times says, “The United States is bombing
in Kandahar, in Kabul,” I don’t know enough about what is going on at that
point. I certainly get nervous, if we are bombing in downtown Kabul, in the
ability to separate out civilians and non-civilians. But that is a question
that you need to know in detail. I personally oppose anti-personnel weapons and
cluster-bombs. I oppose them unless you are in a totally combatant situation.
And I think there has been significant use of anti-personnel weapons and
cluster bombs. I don’t know exactly whether their use has always been in a
situation where only combatants were in the surrounding area.
Question: I have to confess to a sense of deep frustration and sadness at
this discourse, which is making so clear that we are yet again exhibiting a
form of mental illness – social mental illness. It is clearly destructive not
only to our species, but possibly to all forms of human life on the planet. I
guess I would key off the remarks like, “a fundamental rethinking of the
ethic,” a recognition that these times are at a point in human history where
our command of the planet is totally unprecedented and is going to become
progressively greater. So that it seems to me that we are discussing at a level
that is not commensurate with depth and profundity of the problem that we as
human beings face. I don’t know if that is a question which can be answered.
But I would welcome any comments that the panel might have on that frame of
reference for the situation in which we find ourselves.
Hehir: I am taken by your remarks and impressed by them. I am not wholly
convinced by where I think the conclusion would go – namely, that in a sense,
war is unnecessary and we simply indulge in it because we don’t have enough
willpower to deal with it or intelligence to deal with it. I often wonder
whether war is like slavery. For centuries people thought slavery was necessary
for society, and then all of a sudden, we came to understand that it was not
and that it should be done away with. Or maybe war is more rooted in deeper
dimensions of human nature and human relationships. I certainly don’t think
that war should be glorified. I don’t think it even should be mitigated in the
horror that it creates as we describe it. But the question that you raise with
the ethic of war is: are there some circumstances, some situations, where it is
clear that massive amounts of injustice will be done and there seems to be no
other way to stop it? The example I would use to try and get away from the US
theme – because we are all self-interested when we talk about it – is the fact
that in Rwanda, 800,000 people were killed, and I think that in the minds of
most people who look at that politically and military, there is a conviction
that it could have been stopped. To stop it would have taken force. It would
have taken troops with guns who were willing to use guns against people who
were using other weapons. I think that is a situation that justifies the use of
force. You could make an argument, and I would believe it, that you could have
stepped in 12 years before in Rwanda and mitigated the situation so it would
not happen. But I am not positive – I really want to stay with your basic
thrust – that you can explain every situation in the world by saying that if we
thought about it more, that if we acted more or used our resources more, we
would simply eliminate this. I am not positive that is so.
Question: I want to follow up on Rwanda. Because at the beginning, when
you were talking about what constitutes a just war, you talked about human
rights violations. And I think you talked about the duty to rescue. What I
would like to explore with you is: how grotesque do the human rights violations
have to be within the borders of a country to want the rest of the world to
come the rescue of those people? I think most of us would agree that the
genocide in Hitler’s Germany would have warranted going in and stopping it even
if he had not invaded Poland. What I am getting at is if there were to be
blacks in South Africa who were required to wear burkas and who could not be
educated, who could not have medical care, who had no civil rights, who were
annihilated in every way short of actually being murdered, would you say that
that warranted doing something about it? It just seems extraordinary to me that
we can spend this long talking about Afghanistan and never mention women.
Hehir: The question you raise is the question I describe as humanitarian
military intervention, which is different than war. War is what the
international community undertakes when there is aggression across an
international boundary and it needs to be disciplined and set back.
Humanitarian military intervention is the use of military force to address
questions within the defined boundaries of a sovereign state because of what is
going on inside the sovereign state. War is legitimated by international law
and politics. Humanitarian intervention, at the present state of international
law, in most instances is not legitimated. Indeed, the rule of nonintervention
as a political rule is the abiding norm. However, there has been one defined
exception – genocide. Genocide is the justifying cause to undertake military
action inside a state even if that state does not pose a danger as such to the
international community. That is why the United States purposefully did not use
the word genocide when talking about Rwanda, because it knew it was an action
term. Secondly, then, what else do you want to add to genocide that would spark
war? I would add ethnic cleansing (which is not technically genocide, but is
bad enough), and I would add what would we today would call a failed state. I
would not say that what I will call ordinary human rights violations should
justify war. What I mean is, when you have a regime that puts its political
opponents in jail, closes down the newspapers and the unions, infringes on the
rights of women or children, those are human rights violations, but it would
not justify the use of force every time I found them, because as I read Amnesty
International, you would be going to war in a hundred countries. And therefore,
I think that calls for human rights policy, but not war. I would confine war to
a very narrow range of things, but a real range.
Question: This question is for both of you. Professor Mottahedeh, you
mentioned jus post bellum and my question is regarding that. What do you
think the boundaries should be for US and others with respect to imposing
traditionally Western values and standards on the new Afghani government?
Mottahedeh: I believe that there is in Afghanistan, as in several of its
neighbors, a general impetus toward popular sovereignty. People really would
like to have elections again. There is at the same time a desire for ethnic
balance. There are some countries, like Switzerland, which have had to accede
to something like ethnic balance at the same time as accommodating popular
sovereignty. This is a difficult achievement and we should consider the models
of federation that do at present. There are a number of places in the modern
world where one has to maintain a de facto ethnic balance while allowing for
popular sovereignty. Lebanon is such a place. Feelings for individual rights
and liberties seem to be somewhat less developed. And I think that is a failure
in some of the neighbors of Pakistan as well.
I think that one of the most important things that we can do in a post bellum
situation throughout the third world – I am thinking particularly about poorer
Muslim societies – is to have a new kind of Fulbright Plan. Elites in most of
these countries, because they are educated abroad or in schools that teach in
English, are cut off from many elements in the population. I feel it is
terribly important in a post bellum situation, not only to offer the
basic medicine and subsistence that is necessary to carry on as a society, but
also to create institutions of education at all levels in the vernacular of
such nations. Afghanistan should be a model in this respect. One of the
problems we have, in speaking about human rights, is that NGOs who stand up for
human rights in these countries are often accused of being stooges for the
West. How can we overcome that? We can overcome that by sponsoring liberal
education in the vernacular at all levels so that indigenous elites are
produced. I would love to see an expanded Fulbright Plan as something that
would be part of a post bellum reconstruction.
Question: I have a short question and even shorter reflection. My
question is for Roy Mottahedeh. You mentioned the advantages of having insisted
that we were pursuing Osama bin Laden and his senior aides from the perspective
of criminal justice and taking them to the Hague. My question is, in having
talked about this, whether the Muslim judges in the Hague or on any
international tribunal would in fact be accorded the legitimacy and respect
that I think we in the West hope. It is my understanding that they are not
actually Islamic jurists, in the sense that they are not ulema. They are
judges who are trained in the Western tradition and are working in secular
judicial systems. I wanted your reaction to that question. And just a final
reflection to Bryan Hehir: you were interesting when you talked about
presenting evidence as a key part. And the difficulty here is that we normally
don’t present evidence before we go to war. We present evidence in courtrooms.
And I wonder, if instead of thinking of this in terms of presenting evidence as
part of the use of force, we should not be thinking about this as to when we
can legitimately use force for the ends of the criminal justice system and make
that the focus and war simply the means, and a very limited means.
Mottahedeh: About the question of the jurists and the kind of law by
which they would judge – there are several nations in which the governments are
technically secular, but, as in the case of Egypt and Pakistan, in the
constitution says that the source of the law is classical tradition of Islamic
law. Interestingly enough, I think that along with a case that would be made in
the Hague in terms of existing and, we have to admit, overwhelmingly
Western-produced international juridical norms, I think a perfectly good and
strong Islamic brief could be submitted. I know from a case in which a Western
oil company had a disputation with a north African country, and there was,
because of the provision in the constitution which says that the ultimate
resource is Islamic law, both a brief in terms of ordinary international law
and a brief framed in terms on Islamic law were submitted.
Hehir: On the basis of your second question, I would say two things. One,
I fully agree with those who say that even if this approach to terrorism
involves some military force, war is not the overarching term to define what we
are involved in. Because what that term does is to overemphasize the military
dimension of a coherent policy that will be necessary. Even people like Michael
Howard and others who are not shy when it comes to saying, “It’s time to go to
war,” have made the point that it would be a policy mistake to define the
question in terms of war as a whole. You define the question much more
culturally in terms of police work, intelligence work, political work, that
kind of thing. That is my point. The step beyond Afghanistan is a very
complicated question in terms of whether military questions are the key
questions or whether others are, and then how you would justify any step and
what kind of evidence you would produce.
Berger: Thank you very much. Patricia Spacks is going to make some
concluding remarks.
Spacks: Thanks to all of you for the insight you brought to tonight’s
presentation. I think we all come away from this discussion with a deeper
understanding of the meaning of the just war and probably with more questions
than we started out with, which is not a bad thing.
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