Just wars or just enemies?

Gary Ulmen

Carl Schmitt, Das international-rechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege,” ed. with Notes and an Epilogue by Helmut Quaritsch (Berlin: Duncker & Humblot, 1994), 259 pp.

 

Just and Unjust Wars

The attempt to distinguish between just and unjust wars began after WWI. At the close of the 20th century, however, this distinction is still unclear. Despite efforts by the League of Nations and the UN, no new international law has been found to replace the nomos of the earth grounded in the ius publicum Europaeum that collapsed at the end of the 19th century.(n1) Consequently, today aggressive wars are systematically being criminalized. Thus, in Just and Unjust Wars. A Moral Argument with Historical Illustrations (1977),(n2) Michael Walzer writes: “Aggression is the name we give to the crime of war” (p. 51) and attempts to revive the theory of just wars defined as limited wars. According to Walzer, “their conduct is governed by a set of rules designed to bar, so far as possible, the use of violence and coercion against noncombatant populations” (p. xvii). Allegedly, most wars are “just on one side (the side that fights in self-defense); and then some acts of war must also be justifiable” (p. xii). In this view, the only “just” recourse to war is to combat aggression. Apparently, oil reserves, lines of communication, freedom of waterways and all other past concerns are all out of bounds for Walzer. The only thing that matters is aggression, which refers to whoever fires the first shot or invades a foreign territory.

Walzer claims he always refers to “the laws of international society (as these appear in legal handbooks and military manuals) as positive laws,” but for the rest, he says: “when I talk of law I am referring to the moral law, to those general principles that we commonly acknowledge, even when we can’t or won’t live up to them” p. xxvii). His objective is “to recapture the just war for political and moral theory. My own work, then, looks hack to that religious tradition within which Western politics and morality were first given shape? to the books of writers like Maimonides, Aquinas, Vitoria, and Suarez and then to the books of writers like Hugo Grotius, who took over that tradition and began to work it into secular form” (p. xxviii). The self-righteousness is all the more obvious in many of Walzer’s outrageous claims, such as that the American war in Vietnam was a war of aggression similar to the Nazi conquests of WWII and the Soviet invasions of Hungary and Czechoslovakia (p. 292). His absolute morality necessitates a deliberate fogging of history and fudging of law whenever and wherever it is convenient. It also necessitates blurring the lines between internal and external, private and public — all in the name of the ordinary citizen: “My own task is different. I want to account for the ways in which men and women who are not lawyers but simply citizens (and sometimes soldiers) argue about war” (p. xvii). Here he succeeds, for his discussion of this complex issue is as confused as that of any ordinary citizen dealing with the subject.

The scope of the problem is evident in a recent symposium on Walzer’s book.(n3) As David C. Hendrickson puts it, if “war belongs to the realm of necessity, it makes no sense to pass moral judgment on it than it would to pass moral judgment on catastrophes occurring in nature.”(n4) Hendrickson focuses on the “legalist paradigm,” i.e., what Walzer calls “the fundamental structure for our moral comprehension of war” — to intervene in the internal affairs of other states violates their rights and any “use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act.” All the issues raised by Walzer’s legalist paradigm have been raised anew in the past 20 years and particularly since the end of the Cold War — first and foremost in the case of “humanitarian” interventions. As Hendrickson notes, the latter has reversed the traditional ideological fault lines: “the Right is skeptical of assuming responsibility; the Left now wishes to take up the white man’s burden. Walzer’s rethinking of this issue is itself symbolic of this broader transformation. Whereas previously he had sought to justify a right of humanitarian intervention, he now s peaks of an imperative duty.”(n5) Whereas earlier Walzer worried about Western neocolonialism, now, in the name of humanitarian intervention, he argues that: “Old and well-earned suspicions of American power must give way to a wary recognition of its necessity.”(n6) This indicates the ideological direction of Walzer’s moral compass.(n7)

The question of just and unjust wars has to do with the search for a new international order grounded in international law. Such an order cannot be grounded on any naive “moral law,” but on precisely that tradition to which Walzer appeals but then transforms and trivializes. This Western tradition provides the only precedent for a serious consideration of these issues, and it is this tradition to which Carl Schmitt appealed when, in the summer of 1945, in war-ravaged Berlin, he wrote a comprehensive legal opinion (hereafter: Gutachten) concerning the criminality of aggressive war and the possibility of indicting industrialists as well as military and political leaders. It remained unpublished and largely unknown for more than 50 years until Helmut Quaritsch retrieved it from Schmitt’s estate. Its significance transcends its immediate purpose because it addresses the question of the reconstitution of international law. Thus Quaritsch is justified in locating Schmitt’s Gutachten in the history of “aggressive wars” from the Nuremberg and Tokyo trials to recent UN deliberations concerning the war in the Balkans.

 

The Criminalization of Aggression

In the eyes of their participants, the Nuremberg and Tokyo trials were supposed to constitute “a landmark in law,” comparable to the Magna Carta, Habeas Corpus and the Bill of Rights (p. 158). In the end, however, they succeeded only in constituting “victors’ justice,” as indicated by the British representative to the trial: “What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is so there won’t be any discussions on whether it is international law or not” (p. 170). The UN General Assembly adopted the “Principles of International Law” contained in the London Charter and in the judgments of the International Military Tribunal at Nuremberg. While those principles can be considered the opinio iuris of the international community, half a century after the Nuremberg and Tokyo trials it is obvious that they constituted no landmark in international law.(n8) Both trials were unique, at least with respect to crimes against peace and in terms of Schmitt’s argument in his Gutachten concerning the criminalization of aggression.

Schmitt traced the origin of the modern criminalization of aggression to a letter dated December 14, 1910 by Andrew Carnegie to the Trustee of the Carnegie Foundation in which he announced the transfer of 10 million dollars in secured bonds to be used “to destroy war, this blemish on civilization.” Carnegie continued: “Certainly we no longer gorge ourselves, we no longer torture our prisoners, we no longer plunder cities and destroy their inhabitants, but like barbarians, we still make war. In the 20th century of the Christian era one can only excuse wild animals, because war is essentially criminal, and not only aggressive war.” Schmitt asks rhetorically: “Why is it essentially criminal?” Because it is not law but power which decides the outcome. It is a crime only if a people rejects the proceedings of the international court.

The spokesman for the “American movement” to outlaw war was James T. Shotwell,”(n9) who in March 1927 delivered a lecture in Germany titled: “Do we Stand at a Turning Point in World History?” Schmitt paraphrases Shotwell’s argument: and makes a counter-argument: “Earlier the world was static and there was war, now it becomes dynamic and there should be peace; remarkable; rage and a bad conscience seek a culprit and a scapegoat…. That is also part of the dynamism of this new age.” Shotwell asked: “What is the result?” The answer: since war has ceased to be calculable, its political realism is obsolete and we must develop a political realism of peace (the League of Nations, international justice, Locarno). Schmitt’s response does not play with the logical absurdity of Shotwell’s argument but treats it seriously: since “war has ceased to be calculable, it need not cease to exist. The fact that war no longer has to do with political realism could also have the result that, since its form and content have changed, so has the meaning of political realism, and that this politics is no longer merely an `art of the possible,’ as in the 19th century. It could be that, precisely because of . . . the consciousness of the enormous turning point and dynamic character of the present, precisely because of the consciousness of the incalculability of war, a new type of political realism has arisen which assumes this consciousness and does not fear to meet the opponent face to face because it knows that it has the right weapons.”(n10)

As in Der Nomos der erde,(n11) in his Gutachten Schmitt traces his critique of just wars back to scholastic theologians, especially Vitoria. The latter’s thinking is rooted in the medieval order rather than in the modern international law of the ius publicum Europaeum –that post-medieval international law which sought to repress the “just cause” of war, grounded in ecclesiastical laws, and replace it with the “just enemy,” grounded in inter-state laws, to end the indiscriminate wars of the Middle Ages. This juridical formalization of war between equally sovereign states led to the limiting of war. Crucial to this accomplishment was the definitive separation of theological and juridical arguments. With the end of the ius publicum Europaeum, war became once again an “offense” and the aggressor a “felon” in the most extreme criminal sense. Yet, as Schmitt put it, the injustice of the aggression lies not in the establishment of the cause of war but in the crime of aggression itself. This is why the modern distinction between just and unjust wars has nothing to do with scholastic doctrine or Vitoria.

In the winter semester 1944/45, when Schmitt turned his attention to the concept of war,(n12) he was the only professor on the law faculty at the University of Berlin sill lecturing on public and international law. Schmitt’s earlier discussion of war had culminated in his address to the Academy of German Law in Munich (October 29, 1937) on the turn to a discriminatory concept of war. In view of the bloody struggles that had broken out in various parts of the world after WWI, Schmitt said: “The anxiety of the present world situation is mirrored in the problematic of the concept of war. It demonstrates what has always been true that the history of international law is a history of the concept of war. International law is clearly a `law of war and peace,’ ius belli ac pacts, and will remain so as long as it is a prerogative of independent peoples organized into states, i.e., as long as war obtains between states and it is not an international civil war. Every dissolution of old orders and every attempt to create new types of association raises this problem. Within one and the same order of international law there cannot be two antithetical concepts of war any more than two different concepts of neutrality.”(n13) The crises in Manchuria, Ethiopia, and Spain exemplified the new situation — a situation characterized by the attempt to combine the League of Nations with a universal economic order and the attempt to distinguish between just and unjust wars. Problems arose as soon as the claims of organized peoples came into conflict with the claims of a world economic order,(n14) while the distinction between just and unjust wars had led to an even more “total” distinction between friend and enemy.(n15)

 

Schmitt’s Gutachten in Perspective

Following his active collaboration with the Nazi regime between 1933 and 1936,(n16) Schmitt developed a critique of the Nazi system both in private conversations and in his seminar,(n17) as well as in works such as Leviathan.(n18) Thus, as Quaritsch indicates, what he describes as the crimes and character of the Nazi regime is not merely a camouflage for his own actions but his considered opinion. In fact, Schmitt’s Gutachten was written after Friedrich Flick, one of the most prominent industrialists in Weimar Germany, was arrested by the Americans on June 13, 1945. While incarcerated, Flick read in the American military newspaper Stars and Stripes an article by Simon Bougin titled “History’s Greatest Case — Justice Jackson has Established a Formula for Trial of Germany’s War Criminals,” which included “Leaders of the German army and state, of industry and finance, and of the Gestapo and the SS.” Flick also became aware of the so-called Jackson Report to President Truman of June 6, 1945, mentioned in both the American and the German press, which listed financial and industrial leaders along with political and military leaders — as subject to criminal prosecution.(n19) Thus, even before his arrest, Flick could have expected that charges of this nature could be brought against him, although it is unclear whether he personally asked Schmitt to write a Gutachten, or whether this was done by his lawyer, Walter Schmidt, or one of Flick’s operatives. At any rate, as Quaritsch points out, Schmitt could not have begun work on it before the middle or end of June 1945.

Given the comprehensiveness of Schmitt’s treatment, he completed his Gutachten in an amazingly short time, before he himself was arrested September 26, 1945.(n20) Since the Nuremberg trial ruled against the principle of “nullum crimen, nulla poena sine lege” (“no crime, no penalty in law”), Schmitt’s opinion was not used in the trial of Flick and his colleagues (April 19-Dec. 22, 1947). At any rate, it would have been beside the point, since they were not charged with aggressive war or crimes against peace. They were charged only with war crimes and crimes against humanity for the use of forced labor from concentration camps and of prisoners of war in their factories.(n21) Schmitt had sharply distinguished between crimes against peace and crimes against humanity, and it was not known whether the latter could be brought against industrial and financial leaders. However, even if he had known, it is clear from his Gutachten that Schmitt would not have changed his argument. As Quaritsch notes, a legal opinion differs from a lawyer’s brief because the jurist remains neutral. He is not representing the defendant and his opinion may lead to results unforeseen or even unwanted by the defendant.

Schmitt’s Gutachten fulfilled the assigned task. It addressed an international court and the authorities in Washington, London and Moscow. Its argument is consistent with his scholarly work on war, its relation to politics, its place in international law, its legal status as opposed to a criminal act. As he wrote during the Weimar Republic, neither war nor revolution is something ideal: “The military battle itself is not the `continuation of politics by other means’ . . . War has its own strategic, tactical, as well as other rules and viewpoints, but they all presuppose that the political decision has already been made as to who the enemy is. . . . War is neither the aim nor the purpose nor even the very content of politics. But as an ever present possibility it is the leading presupposition which determines in a characteristic way human action and thinking and thereby creates a specifically political behavior.”(n22) Clearly, given Schmitt’s problems with the Nazi regime after 1936 and his turn from constitutional to international law, his focus had broadened, as can be seen in his treatise on GroBetaraum.(n23) Moreover, his treatise on the turn to a discriminatory concept of war(n24) already juridically predisposed him to argue against the criminalization of aggressive war as well as against the revival of the concept “just war,” which he expounds so eloquently in Der Nomos der Erde. In his postwar diary, he wrote: “The criminalization of aggressive war must continually issue in ever new criminalizations…. I would have died willingly had my August 1945 discussion of the criminalization of aggressive war been published then or during the trials.”(n25)

 

Three Types of “War Crimes”

Schmitt’s initial distinction in the Gutachten(n26) between three types of “war Bcrimes” is crucial. “War laws” (ius in bello) refer to violations of the rules and uses of war by the military personnel of a belligerent state, as stipulated by the Hague Convention and the like. Before 1914, this was the general meaning of “war crimes,” which presupposed that war itself is a legal undertaking with specific rules of combat. Such rules were long known and accepted in the literature on international and criminal laws, as well as military instructions of warring states. The criminalization of “aggressive war,” however, made war itself a crime. As Schmitt noted, this is new in traditional international and criminal law. In traditional international law, every sovereign state had a recognized right to war (ius ad bellum), which precluded the need to distinguish between “aggressive” and “defensive” war. The criminalization of aggressive war in international law came about only after WWI and the Versailles treaty. Between 1920 and 1939, the League of Nations sought to outlaw war, particularly by means of the Geneva Protocol of October 2, 1924 and the Kellogg-Briand Pact of August 27, 1928. The question for Schmitt was whether “aggressive war” was already a recognized statutory crime in international law in the summer of 1939. If it was still only a moral postulate and a program requiring further clarification, then the nullum crimen principle was still binding.(n27)

As Schmitt pointed out, the principle of nullum crimen is understood and applied differently in continental Europe, England and the US. In continental thinking the word lex in the formula sine lege refers to written law. This has been the case for two centuries. Following the French paradigm, this written law is also codified. Thus the nullum crimen principle in continental thinking contains a three-part prohibition: it excludes not only criminal charges after the fact but also the intensified criminalization of common law and, by analogy, also of criminal law. English law also rejects ex post facto penalties. In fact, the nullum crimen principle is of English origin. It stems from common law and is part of due process. The difference between English and continental law, however, is fundamental, because English law is unwritten common law and thus regards precedent as decisive. What is new in English law is always and only a matter of the disclosure of what is already there — what is implicit. Although conditioned by English and continental law, American law is different: it is aware of the contradiction between written and moral law and excludes ex post facto laws. Unlike English law, in American law there is a sharp sense of the newness of a crime. Thus there is a joining of moral and juridical viewpoints, which means that American jurists are less bound by the nullum crimen principle.

Schmitt’s analysis of the nullum crimen principle is not only part of his argument against the criminalization of aggressive war but also crucial to his identification of a third type of “war crimes.” Since his treatment of this type of crimes may be considered his personal mea culpa for having collaborated with the Nazis,(n28) it has implications beyond its immediate objectives. This is what Schmitt writes about these crimes: “These are atrocities in a specific sense — systematic killings and inhuman cruelties, whose victims were unarmed civilians. They are not military actions but rather have a specific relation to the 1939 war because they were begun either prior to or during this war and are typical expressions of a particularly inhuman mentality which ultimately culminated in the 1939 world war. The brutality and bestiality of these monstrous crimes exceed the normal human power of comprehension. They are components and manifestations of a frightful `scelus infandum’ in the fullest sense of this term.(n29) They are beyond the scope of all traditional and customary measures of international and criminal law. Such crimes set the perpetrators outside the law and make them outlaws in the fullest sense. The order of a superior authority cannot justify or excuse such monstrous crimes; it can at best, in a particular situation, raise the question of whether the perpetrator found himself in a critical situation and whether this distress excuses him. In no case should the abnormality of the crime be made the object of discussion, thereby deflecting the monstrousness of these transgressions and diminishing the awareness of their abnormality” (p. 16).(n30)

At the conclusion of his Gutachten, Schmitt added a note in English, reiterating his condemnation of the Nazi regime: “It goes without saying that — at the end of WWII mankind is obliged to pass a sentence on Hitler’s and his accomplices’ scelus infandum” (p. 80).(n31) In the same way Europe found a way to condemn Napoleon’s crimes after his 1815 defeat, it must now find a way to condemn Hitler’s much greater crimes, because his “scelus infandum and especially the monstrous atrocities of the SS and the Gestapo cannot be classified in their real essence by the rules and categories of the usual positive law, neithr with the help of the old municipal criminal or constitutional law, nor with the help of the present international law, that has its origin in the ius publicum Furopaeum, i.e., relations between Christian sovereigns of Europe from the sixteenth to the nineteenth century” (p. 81). Schmitt concludes that a scelus infandum must never become a legal precedent.

 

The Legal Situation of Ordinary Citizens during War

Only after having made his case so unequivocally could Schmitt proceed to argue against the criminalization of aggressive war and the applicability of the nullum crimen principle to ordinary citizens — in particular, to the predicament of an “economically active, ordinary businessman.” Of course, there would seem to be a wide disparity between ordinary citizens, even ordinary businessmen, and the industrial leaders of Nazi Germany. From the standpoint of international law, this disparity was not an issue. Schmitt was basing himself on the international law in force up to when the war began. As he points out, the war guilt clause in the Versailles Treaty clashes with previous international concepts of war. In addition, it does not mention a general criminalization of aggressive war but only of war as a moral crime against humanity, of which only the head of state of the Central Powers was guilty. Moreover, this clause did not appear under “Penalties” but rather “Reparations,” which meant that it was considered more from an economic than from a criminal standpoint. In fact, the whole question of war guilt since 1919 had been dealt with only in connection with the question of reparations.

During the interwar period, there was an attempt to establish a new international order. It received its greatest impetus from Woodrow Wilson and the American decision not to ratify the Versailles treaty or join the League of Nations. Yet the US continued to play a significant and in some respects decisive role in Europe: it was privately present and publicly absent. This ambiguity was based on the dialectic of American foreign policy or what Schmitt characterized as the presumed separation between economics and politics.(n32) Moreover, the attempt to set an international penalty for aggressive war ran into a series of difficulties, which must have appeared unresolvable to ordinary citizens — such as the antithesis between moral and legal thinking, as well as between moral and legal responsibilities in the conflict between economic and political problems. At any rate, the dilemma between a juridical solution to outlawing war, such as obtained in the 1924 Geneva Protocol, and a political solution to the causes of war, such as rearmament and security, increased as time went on. Then too, there was the problem of whether war is a political or a general crime. Thus it was not difficult for continental jurists to conclude that, because of its lack of definitions, sanctions and organization, its reservations and its relation to the League of Nations and, finally, its use of public opinion as its essential sanction, the Kellogg Pact had no legal foundation for criminal prosecution of a new crime. According to Schmitt, this is precisely where agreement with American jurists was extraordinarily difficult. This is where all the above mentioned antitheses came to the fore. The American jurists’ arguments remained the same, namely that the Kellogg Pact bound all states and peoples to a universal conviction that aggressive war is a crime and that Hitler and his henchmen had begun such a war. For those advocating this outlawing of aggressive war’ the crime of war was comparable to piracy.

Schmitt’s argument is coherent. In international law, the state is the only subject. This is consistent with the fundamental distinction between domestic and foreign. But for those seeking to outlaw war, the sharp juridical distinction between state and individual, international and domestic law, were only technical details. As soon as the question ceased to be merely technical and became moral (as in a modern world war), the relation between the state and the individual became critical and easily degenerated into moral, ideological or even religious discussions. American authors insisted that only a human being can have rights and duties. This, of course, raised the issue of ordinary citizens’ responsibility.(n33)

In this connection, Schmitt points out that the prevailing view everywhere is that ordinary citizens must remain loyal to their national government and have a duty to defend it in wartime. The state — not the individual decides whether a war is just or unjust. Here again, Schmitt is careful to reiterate that he is not speaking of individuals who participate in atrocities but only of international war crimes. The assumption that in wartime a citizen’s loyalty is to his country is also part of scholastic natural law. Not only had this medieval doctrine been used for centuries, but recently it had been reiterated by a leading American jurist, James Brown Scott, who had written extensively on Vitoria and Suarez. At the Paris Peace Conference, Scott was prominent in discussions concerning criminal proceedings against Wilhelm II. He appealed to the doctrine of a just war. Given Scott’s extraordinary influence, Schmitt thought something should be said about the revival of the scholastic doctrine of a just war.(n34) Specifically, he wrote: “If one compares the concrete situation and presuppositions of the scholastic doctrine with the contemporary situation, then the salient point is immediately recognizable. It is not possible to postulate a situation in international law where the individual citizen is forced to oppose his own country and government in wartime so long as there are no international institutions which could give the individual a hearing and protection” (p. 73). Thus, it is legally impossible for individual citizens to decide on the justice or injustice of a war conducted by their own country.

Schmitt points out that previously the organization of criminal justice had a purely domestic scope. Criminal laws, procedures and courts were national matters. Were such exclusively national and domestic institutions to be transposed to the international sphere, the legal position of individual citizens would be fundamentally altered. Actions previously required to fulfill a domestic duty would become crimes, and actions previously considered domestic crimes, such as high treason, resistance and sabotage, would become international duties whose nonfulfillment would turn loyal citizens into international criminals. Thus there would be a conflict of duties, which would plunge ordinary citizens in a state of anxiety only conceivable in the most frightful civil wars.

 

A Legal Opinion for Posterity

Despite the fact that Schmitt’s Gutachten was not used or published during the Nuremberg trial, Quaritsch rightly regards it as a legal opinion for posterity. Not only is it an integral part of Schmitt’s biography, but it is also crucial for an understanding of war and politics in an increasingly globalized situation in which moral and theological arguments are again coming to the fore — a situation without any grounding in international law. The 20th century of”total war” has demonstrated the civilizing and even “rational” policy of Eurocentric international law grounded in the ius publicum Europaeum –the substitution of the concept of the “just enemy” for that of a “just war” and the related “bracketing of war,” whereby it became possible to have truly “limited” wars. Consequently, the need for a new nomos of the earth is becoming increasingly obvious.

Neither the UN nor globalization has eliminated the need for a law of war and peace As Schmitt wrote during the Weimar Republic: “It is irrelevant here whether one rejects, accepts, or perhaps finds it an atavistic remnant of barbaric times that nations continue to group themselves according to friend and enemy, or hopes that the antithesis will one day vanish from the world, or whether it is perhaps sound pedagogic reasoning to imagine that enemies no longer exist. The concern here is neither with abstractions nor with normative ideals, but with inherent reality and the real possibility of such a distinction. One may or may not share these hopes and pedagogic ideals. But, rationally speaking, it cannot be denied that nations continue to group themselves according to the friend-enemy antithesis, that the distinction still remains relevant today, and that this is an ever present possibility for every people existing in the political sphere.”(n35) Since the traditional state is historically obsolete and new political forms will have to emerge in the 21st century, people will continue to organize themselves in one dominant: or several types of collectivities (GroBetaume, regions, or collectivities yet undefined) and, as Schmitt observed: “An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity. The enemy is solely the public enemy, because everything that has a relationship to such a collectivity of men, particularly to a whole nation, becomes public by virtue of such a relationship.”(n36) From the Middle Ages to the present, from Vitoria to Schmitt, the logic of international law has been that just wars are total wars which transform the iustus hostis into a perfidus hostis.

Once war ceases to be a means of rational politics, it becomes a means of ideological (or religious, moral, ethnic, etc.) domination. Once war ceases to be a public contest between recognized political entities, it becomes what Schmitt called an “international civil war.”(n37) Clearly, the dissolution of old orders and the desire for new types of political collectivities has raised again the central question of international law — the concept of war. How this question is answered will determine peace and stability in the 21st century.

Notes:

(n1.) Within such a confused context, it is not surprising that, disregarding the turn from limited to total war that occurred in WWI, scholars such as Barbara Ehrenreich can still argue both that the passion of war causes combatants to dehumanize the enemy and that the warrior sees himself in the enemy and thus treats him as a true combatant — seemingly unaware of the contradiction. See Barbara Ehrenreich, Blood Rites: Origins and History of the Passions of War (New York: Henry Holt, 1997). While acknowledging that there is no substitute for an international order, another recent book continues to assume that nation-states are the only political units able to maintain such an order. See Philippe Delmas, The Rosy Future of War (New York: Free Press, 1997).

(n2.) 2nd ed., with a new preface (New York: Basic Books, 1992).

(n3.) This work has been extraordinarily influential. According to Michael Joseph Smith: “Since its appearance the book has been a standard text at universities throughout the world — as well as at military academies including West Point — where students have been introduced to its moral arguments with historical illustrations’ about war in the relations among states.” See “Twenty Years of Michael Walzer’s Just and Unjust Wars,” in Ethics and International Affairs, Vol. II (1997), p. 3.

(n4.) Ibid., pp. 19-20.

(n5.) Ibid., p. 27 and pp. 105-150.

(n6.) Michael Walzer, “The Politics of Rescue,” in Dissent (winter 1995), pp. 35-41, quoted by Hendrickson, op. c cit., p. 28.

(n7.) See also Joseph Boyle, “Just and Unjust Wars: Casuistry and the Boundaries of the Moral World,” in “Twenty Years . . . ,” op. cit., pp. 83-98. The relevance of Schmitt’s distinction between moral and theological questions, on the one hand, juridical and political ones, on the other, is obvious when the moral and theological approach is secularized and becomes moral and ideological, as it does in Waltzer. This Left-liberal approach pretends to be objectively moral, but its ideological agenda is alway prominent. See, e.g., P. N. Fedoseev, “The Conception of Just and Unjust Wars,” in Howard L. Parsons and John Somerville, eds., Marxism, Revolution and Peace: From the Proceedings of the Society for the Philosophical Study of Dialectical Materialism (Amsterdam: B. R. Gruner B. V., 1977), pp. 67-74 In articulating the Soviet position, Fedoseev argues that the only “just wars” are “wars of liberation”; all others are “unjust and aggressive.” This is why “Marxists consider the division of wars into just and unjust wars fully substantiated.”

(n8.) Quaritsch quotes Eugene Davidson concerning the history of war from 1950 to 1970: “No statesman can possibly act intelligently if he relies on the presumed validity of the findings of Nuremberg, on the concept of one world, on the promise of a universal collective security. These principles have little more than a faint propaganda value and no state can live by them or expect that any other state will live by them.” See Eugene Davidson, The Nuremberg Fallacy: Wars and War Crimes since World War II (New York: Macmillan, 1973). See also Eugene Davidson, The Trial of the Germans: An Account of the Twenty-two Defendants Before the International Military Tribunal at Nuremberg [1966] (Columbia, MO: University of Missouri Press, 1997).

(n9.) James T. Shotwell (1874-1965) had been an advisor to President Woodrow WiIson, a member of the US delegation to the Paris Peace Conference at Versailles, and became an advisor to the US delegation at the founding of the UN in San Francisco. In the spring of 1927, Shotwell was appointed professor of international relations at the newly founded Hochschule fur Politik in Berlin. His inaugural lecture on the occasion of the establishment of a chair funded by the Carnegie Foundation was delivered in German on March 1. Shotwell summarizes his speech in Chapter 12, “The Briand Offer,” of The Autobiography of James T. Shotwell (Indianapolis and New York: Bobbs-Merrill, 1961), pp. 201-203. Among other things, Shotwell says he advocated a “world Locarno,” calling for a universal pledge of peace. See James Thomson Shotwell, War as an Instrument of National Policy, and its Renunciation in the Pact of Paris (1929), with a new introduction by Gerald E. Markowitz (New York: Garland Publishers, 1974). Since, as Shotwell reports, his lecture was widely publicized in Germany, “hut with little support for its central thesis,” it caught Schmitt’s attention, not the least because Schmitt first introduced his friend-enemy thesis in a lecture at the same Hochschule fur Politik in May 1927. But since Schmitt did not turn his attention to the study of war until the 1930s, it appears from his comments that he only read Shotwell’s lecture later. Schmitt called this lecture “one of the most critical and fateful lectures for Germany” because it signaled the “formal introduction” of the new concept of war and the criminalization of the aggressor. See Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951, Eberhard Freiherr von Medem, ed. (Berlin: Duncker & Humblot, 1991), (August 31, 1947), p. 6.

(n10.) Schmitt, Glossarium, ibid. (September 1, 1947), p. 7.

(n11.) See the translation of Chapter II of this work, “The Land Appropriation of a New World,” which contains a long discussion of Vitoria, in this issue of Telos.

(n12.) As Quaritsch notes, it is unclear whether Schmitt took parts II and III of his Gutachten out of his manuscript on Der Nomos der Erde (which he was writing during the war) or whether he inserted parts of his Gutachten into his Nomos manuscript. In any case, both contain sections dealing with “War Crimes and War Guilt in the Versailles Treaty” and “Development of the Penalization of Aggressive War in International Law.” Quaritsch compares Schmitt’s formulations in his Gutachten and in Der Nomos der Erde. See pp. 92. 101, 103, 104, 117, etc.

(n13.) Carl Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff (Munich: Duncker & Humblot, 1938), p. 1.

(n14.) Ibid., p. 6.

(n15.) Ibid., p. 50. See also pages 41 and 45. Cf G. L. Ulmen, “The Return of the Foe” and George Schwab, “Enemy or Foe: A Conflict of Modern Politics” in Telos 72 (Summer 1987), pp. 187-193 and 194-201 respectively.

(n16.) See Heinz Hohne, Die Zeit der Illusionen: Hitler und die Anfange des Dritten Reiches 1933-1936 (Dusseldorf and New York: ECON Verlag, 1991).

(n17.) Schmitt criticized Hitler at the beginning of the Nazi regime, as reported by one of Schmitt’s Jewish students, who was in Schmitt’s seminar when Hitler took power in January 1933 In private conversations, Ludwig Lachmann has stated that Schmitt expressed his distress at the Nazi victory in his seminar in no uncertain term, which was consistent with Schmitt’s warnings in 1932 against allowing any party unfriendly to the constitution the “equal chance” to compete for political power. See Carl Schmitt, Legalitat und Legitimitat (1932), 2nd ed. (Berlin: Duncker & Humblot, 1968).

(n18.) See Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, Foreword and Introduction by George Schwab, tr. by George Schwah and Erna l Hilfstein (Westport: Greenwood Press, 1996).

(n19.) According to the June 12, 1945 issue of Berliner Zeitung, Jackson added: “We should not concede that the US position be couched in a sterile legalism, which developed during the age of imperialism, whereby the truth of aggressive wars was concealed in fine words. Through this trial we should be in a position to create a jurisdiction of reprisal which the civilized world can endeavor to grapple with in the future. . .”

(n20.) See Joseph W. Bendersky, “Carl Schmitt at Nuremberg,” op. cit., pp. 91-97; “Interrogation of Carl Schmitt by Robert Kempner (I-III),” pp. 97-107; and “On GroBetaraum, the Hitler Regime and Collaboration (I-III),” pp. 107-130 in Telos 72 (Summer 1987)

(n21.) Flick was convicted of employing the forced labor of more than 40,000 war prisoners and concentration camp inmates in his factories during WWII. He was sentenced to seven years in prison, but was released after serving only three years. He died in 1989 at the age of 89. His grandson, Gert-Rudolf Flick, who lives in London, recently attempted to fund a Chair for European Thought at Oxford University. The “Ethics Committee,” however, rejected the offer because of the “unsavory origin” of the money. See “Flick zieht Spende fur Oxford zuruck,” in Suddeutsche Zeitung (April 17, 1996).

(n22.) Carl Schmitt, The Concept of the Political, tr. with an Introduction by George Schwab (Chicago: The University of Chicago Press, 1996), p. 34.

(n23.) Carl Schmitt, Volkerrechtliche GroBetaraumordnung mit Interventionsverbot fir raumfremde Machte [1941] (Berlin: Duncker & Humblot, 1991). See also Mathias Schmoeckel, Die GroBetarauntheorie: Ein Beitrag zur Geschichte der Volkerrechtswinssenschaft im Dritten Reich, insbesondere der Kriegszeit (Berlin: Duncker & Humblot, 1994).

(n24.) Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, op. cit.

(n25.) Carl Schmitt, Glossarium, op. cit. (June 6, 1948), p. 167.

(n26.) The Gutachten is divided into five sections and a conclusion: “The Practical Significance of the Principle nullum crimen, nulla poena sine lege”; “War Crimes and War Guilt in the Versailles Treaty”; “Development of the Penalization of Aggressive War in International Law 1919-1939”; “Principles and Accessories to the International Crime of aggressive War”; and “The Situation of the Individual Citizen, in Particular the Economically Active Ordinary Businessman.”

(n27.) In his postwar diary, Schmitt commented on Wilhelm Grewe’s book, Nurnberg als Rechtsfrage: Eine Diskussion (Stuttgart: Otto Kuster, 1947): “I have quickly read the Grewe-Kuster discussion…. I am certain that Grewe is familiar with my juridical opinion of Summer 1945 (concerning aggressive war in international law and the principle nullum crimen sine lege). Kuster sometimes appears so unsympathetic and Grewe so cautious, but there is still much that is visible, and not only with respect to real juridical questions and arguments but also something much more important This discussion shows how we in Germany are at the core of the modern problematic and we must come to terms with this terrible problematic in ourselves and with ourselves, without the help of the East or the West.” “(To Wilhelm Grewe): Concerning discussion of Nuremberg as a legal question and your covering letter…. I consider it a great and decisive methodological accomplishment that you separated the question of the criminalization of aggressive war as such from the question of other crimes (atrocities and war crimes) and consciously raised this separation to a principle (p. 99). Without this distinction, there can be no scholarly discussion of the process either in part or in whole, also no juridical concept of this new and difficult crime of aggressive war, with all the new problems of presentation of the facts of the case, the circle of perpetrators, the relation between dubious definitions of aggression and the objective problem of war guilt, as well as the `iusta causa belli’.” See Schmitt, Glossarium, op. cit (March 14, 1948), pp. 114-15 and (April 3, 1948), pp. 135-36.

(n28.) See George Schwab, The Challenge of the Exception. An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936, 2nd ed. with a New Introduction (New York: Greenwood Press, 1989), Part Two.

(n29.) As Quaritsch notes, Schmitt’s concept of scelus infandum can be found in classical Latin, but only as an occasional word conjunction. Scelus signifies a nefarious act, such as murder and high treason, whereas infandus in this connection is translatable as abominable or unspeakable. Schmitt gives the phrase his own interpretation.

(n30.) In his elaboration of the nullum crimen principle, Schmitt goes to the heart of the matter: “Atrocities in a specific sense, such as obtained before and during the last world war, must in fact be considered `mala in se.’ Their inhumanity is so great and so evident that it is sufficient to establish the facts and the perpetrators without the need to prove guilt by reference to prior positive criminal laws. . . Here also, it is not necessary to question the extent to which the perpetrator had a criminal intent. Everyone understands this as self-evident In view of such offenses, anyone wanting to raise the objection of `nullum crimen’ and to refer to prior positive provisions of criminal law would immediately place himself in a precarious position” (p. 23).

(n31.) There is no text of the Gutachten in Schmitt’s handwriting He dictated it to his secretary, the late Anni Stand, and then corrected the manuscript. But he did write both the introduction and the English note. The quoted passages have been modified.

(n32.) See G. L Ulmen, “American Imperialism and International Law: Carl Schmitt on the US in World Affairs.” in Telos 72 (Summer 1987), pp. 43-73.

(n33.) Schmitt does not defend or excuse any of the officials in the Hitler regime, but he does raise the question of access to Hitler. See Carl Schmitt, “Der Zugang zum Macht, ein zentrales verfassungsrechtliches Problem” (1947), in Schmitt, Verfassungsrechtliche Aufsatze aus den Jahren 1924-1954: Materialien zu einer Verfassungslehre(1958), 2nd ed. (Berlin: Duncker & Humblot, 1973), pp. 430-439.

(n34.) In his postwar diary, Schmitt wrote: “Yesterday evening I again read Fr. de Vitoria and became reacquainted with the terrible misuse of his doctrine of a just war, especially the 5 dubi circa iustutiam belli and the 9 dubiosa quantum liceat in bello iusto. Whoever speaks of a just war and does not indicate the practical, moral and historical significance all these dubia and dubiosa have for him has no authority on his side”, “Given my previous experiences, from a scholarly viewpoint I can say that 9/10 of everything written about Vitoria today is a shameless swindle, unadulterated rubbish and only the most pathetic fellow-traveling.” See Schmitt, Glossarium, op. cit (June 29, 1948), p. 172 and 173.

(n35.) Schmitt, The Concept of the Political, op. cit., p. 28 (translation modified).

(n36.) Ibid.

(n37.) Rather than arguing for the reconstitution of international law or even recognizing the relation between the concept of war and international law, Samuel P. Huntington simply accepts the worst case scenario. Despite the title of his book, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Shuster, 1996), he clearly has no concept of the “remaking of world order” beyond what he calls the “abstention rule” — that “core” states “abstain from intervention in conflicts in other civilizations” — and the “joint mediation rule” — that “core states negotiate with each other to contain or to halt fault line wars between states or groups from their civilizations” (p. 316).

 

[Telos; Fall96 Issue 109, p99, 14p]

Tags: Gary-Ulmen