Fascist Islamism

Much has been written elsewhere about the connections between "Islamism" and "fascism". See Islamofascism.

This article will focus on legal responses within the U.S. constitutional system.

The U.S. Constitution provides that Congress shall have the power "To define and punish ... Offences against the Law of Nations;" The Framers did not define the term. They left that to legal historians. We have discussed that at "The Meaning of the Law of Nations". But more can be said about it.

An offense against the law of nations is in general, to either perpetrate by too many, or injure too many, to be managed, as a practical matter, through the ordinary processes of the criminal justice system. It is to direct, or through action or inaction, encourage the deprivation of rights of one group or individuals by another.

How many perpetrators, or victims, are enough to take us from the criminal justice system to prosecution as an offense against the law of nations? For the perpetrators it can be as few as five, to avoid having the perpetrators testify in defense of one another. For the victims, it can also be as few as five, too many to prove an offense by particular offenders.

For such cases we can treat the offenders or the victims as a class. If we can prove offense of the first, or victimhood of the second, we can treat the offenders collectively, convict them, and punish them. The usual penalty is death.

For Islamic nations we can identify several offenses that particularly apply:

  1. Piracy or brigandage.

  2. Invasion or conquest, especially violent. This can consist of one person entering a nation, without consent.

  3. Enslavement.

  4. Intentional environmental damage, (such as the salting of the fields of the Carthaginians by the Romans after the Punic Wars, or the destruction of the waterworks sustaining the marshes north of Baghdad by the Mongols in 1258).

  5. Oppression of women:

    1. bazr, or female genital mutilation.

    2. Requiring women to marry, especially very young ones.

    3. Preventing women from controlling the number and timing of their children.

    4. Preventing divorce by women.

    5. Requiring wearing or headscarf or hijab by women.

    6. Requiring wearing of excessively concealing clothing by women, such as burqas.

    7. Restricting inheritance by women.

    8. Forbidding women to work in certain jobs, or exercise certain freedoms.

  6. Nonjudicial punishment, such as a lynch mob, driven by incitement.

  7. Preventing speakers from being heard, which can be incitement.

  8. Destruction of habitats, hunting of species to extinction.

  9. Intimidation of business owners to paying a percentage of earnings, extortion, “protection”.

  10. Selling or conveying of dangerous, perhaps addictive and mind-altering substances.

  11. Shaming or threatening of nonconformists into changing their beliefs or behavior, especially “religious”.

  12. Resisting or obstructing of compliance with legitimate treaties or laws, sedition.

  13. Defamation of groups by untrue accusations.

  14. Oppressive and unreasonable surveillance.

  15. Disclosure of legitimate state secrets by righteous states.

  16. Marketing or persuasion on untrue information, propaganda.

  17. Destruction of evidence of things past, of past writings, relics, and accomplishments.

  18. Controlling of identification needed to freely function.

In principle, these provide the grounds for going to war, or at least guerra, against offending states. That is no small matter. It could involve us in war against many states. But if we are to assert these principles, we need to be clear what we are doing.

It has been argued that slavery was a creature of the ancient Roman law of nations, or at least of the jus gentium they practiced. That in turn was based on the "law or war" they practiced, which provided that the victor in a war had the right to kill all the losers, as the Israelis did to the people of Jericho after their war with it. That seems rather extreme to us today. But that was the historical standard. Of course, the Israelis started that war with Jericho.

The theory of slavery was based on that law of war. Essentially, that since the victors in a war had the right to kill the losers, they could also make a deal with the losers to accept enslavement in exchange for life. There might be some disagreement over whether enslavement was inherited by offspring, but that was the theory.

In Africa there was continual warfare between tribes, and the losers tended to get sold into slavery by first, the Portuguese, then later by the English, who forbade the practice in 1808. Generally, it was not the Europeans doing the enslaving. They just bought the slaves collected by others.

So how does all this apply to the modern state of Israel? It is unclear who started the war in 1948, but most of the evidence seems to point to the Arabs. There is no such dispute about the 1967 war. The Arabs started that one, and lost. Since the land was the dispute in the war, by the ancient law of war, Israel would now own all the land, with the right to evict any non-Israeli Arabs from it, under potential pain of death. In practice, they recognized Arab ownership of improved parcels of land, improved by fencing, farming, or grazing. Of course, grazing can extend fairly far.

So we have the situation today of Israel owning most of the land and consenting to Arabs remaining on improved parcels. That is not an acceptable situation for any of the disputants, who both claim all the land, but that is the status quo.  How it might be resolved remains the subject for a different article.

We have made enslavement an offense against the law of nations in our list, but any complete analysis of the subject requires revisiting the law of war.