Writings on War
Reviewer: Jakub Fremund (Metropolitan University Prague)
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Carl Schmitt was a famous German jurist, intellectual and professor of law and significantly contributed to the development of political theory authoring countless volumes, essays and many other remarkable works. He was considered to be one of the most famous critics of liberal democratic values, the League of Nations and Western liberal international law. Though his works are riddled with racism and anti-Semitism, his provocative views remain a never-ending source of research. Writings on War is a collection of works between 1937 and 1945. The work is divided into three parts, each of them devoted to the development of international law after the Versailles Peace Conference. The book is intended for all those who are interested in political theory, jurisprudence and, primarily, the historical development of international law. Here, thanks to Timothy Nunan and his excellent translation, this work is, for the first time, presented in English.
The first part of the book called: ‘The Turn to the Discriminating Concept of War’ describes a gradual transformation of international law following WWI. This part is further divided into three subsequent chapters where Schmitt analyses and elaborates the works of George Scelle, Hersch Lauterpracht, John F. Williams and Arnold D. McNair.
Both Scelle’s and Lauterpacht’s works show the dynamics of jurisprudence established by the Geneva League of Nations after WWI and are taken as evidence of international laws’ evolution since they both aim at universalising international relations and securing these by institutions to construct an order in which the Geneva League of Nations and mankind (in general) work together, expand and strive for progress. Schmitt however, sees gaps in this system and questions its reliability. He points out that international law has changed and transformed from constitutionalism to federalism. Accordingly, the Geneva League of Nations takes its place too close to other federal legal institutions such as the British Empire, the Soviet Union or pan-America and therefore lacks the demanded universality.
Unlike Scelle’s and Lauterpacht’s theoretical works, the works of Williams and McNair focus on a concrete example and were published in response to the actions by the League of Nations of 1935. They describe the process conducted against Italy (Italo-Abyssinian war 1935-6) and tried to evaluate whether the imposition of sanctions was in compliance with the League of Nations Charter or not. They use this occasion to demonstrate that the Geneva League of Nations is a true community. Schmitt here seeks answers to a lot of questions such as the rights and duties of the Geneva League of Nations members and to what extent can these be enforced; what is the role of third actors in conflict situations between two parties; how has the concept of neutrality changed and, finally, what is the definition of war in terms of just and unjust war.
The second part of the book is entitled ‘The Großraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law.’ This chapter concerns the role of Reich (can be also understood as a world superpower) and its position in international law, defines Großraum as an expression and locates its place in international order while describing a correlation between Reich and space.
Schmitt here defines the so-called Großraum order as a technical, industrial and economic order which can arise when small districts more or less organisationally merge themselves into larger complexes. He wants to overcome the obsolete Versailles system and looks for a way to create a functioning and prosperous spatial order.
He also emphasises the importance of the Monroe Doctrine and claims it to be the most successful example of a Großraum order. Though it is a traditional element of US foreign policy, Schmitt questions its legal character and highlights the Doctrine’s inconsistency suggesting that it transformed from a principle of non-intervention and the rejection foreign interference into the very justification for imperialist ambitions of the US. It was deployed both as part of the US’s isolation and neutrality policy and for global engagements. As a counter-image of the Monroe Doctrine, Schmitt introduces the principle of the security of the British traffic routes and opines that both superpowers have different approaches to their territorial security and stresses the importance of strategically significant areas such as the Suez Canal, the Panama Canal and the Kiel Canal.
In the concluding section of this part, Schmitt focuses on several issues: firstly, he describes the relationship between law and minorities in Central and East European spaces. He generally questions the Versailles minority protection system and directly links its flaws with a geographical zone. Secondly, he defines the correlation between space and Reich. He says that not states but Reichs are the real creators of international law. He also believes that the concept of Reich is determined by overseas wealth and therefore emphasises the importance of European colonial system.
The final portion of this work called ‘The International Crime of the War of Aggression and the Principle “Nullum crimen, nulla poena sine lege” describes a character of this principle in international law. Schmitt elaborately explains the difference between the Geneva Protocol and the Kellogg Pact while assessing their weaknesses and vulnerabilities.
The following chapter concerns two historically important treaties which both attempted to give war a new legal status and to establish an automatic ban on aggression—the Geneva Protocol (1924) and the Kellogg Pact (1928). Here, Schmitt analyses his interpretation as to why the Geneva Protocol failed. Firstly, he believes that the protocol was short on proper juridical definitions of terms such as aggression and the aggressor and there was no clear differentiation between aggression and war. Secondly, he claims the protocol did not respond to and did not want to respond to the objective contexts of the question of the just war. He, nevertheless, admits that there is a dilemma between juridical and political way of thinking and therefore it is difficult to make clear definitions. The Kellogg Pact, on the other hand, does not speak of aggression but rather of a condemnation of war itself. Schmitt sees the flaw of the Kellogg Pact in the fact that it has a virtue of simplicity. It is a pact without definitions, without sanctions and without organisations. It abstains both from a determination of the term “aggression” as well as from a determination of the term “war” and the whole structure of punitive system is designed only on the basis of moral condemnation through public opinion.
In the last several chapters Schmitt talks about the principles of international crime including ‘war of aggression.’ He is concerned with the correlation between individuals and the state under international law and raises questions of how to define a perpetrator, who to punish, how to determine whether only an individual person committed a crime or a large number of individuals. He also explores the concept of piracy and presents it as a clear example of an international crime. In the last few pages, Schmitt briefly speculates on the rights of an individual citizen and his duties towards the state.
Writings on War, is an advanced piece of historical scholarship which continues to impact the often nuanced political and legal relationship between states and between states and individuals. Owing to its complexity, readers must be familiarised with the historical and political background of the interwar period, the manner in which it unfolded and propelled Europe to WWII and a general awareness of both continental European and Anglo-Saxon jurisprudence. Despite the author’s obvious intransient opinion about the Geneva League of Nations and Western liberal democratic values, this book offers sound criticisms of the international legal order of the times and is thus a pillar of knowledge for students and scholars of international law and relations.