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T
oday, against the background of terrorism and pre-emptive war,and allegations of torture in Guantanamo and Abu Ghraib, it is notonly popular to bemoan the so-called “death” of international law, but
but necessary, or alternatively that international law has no importancebecause it is unenforceable, are both limited and unhelpful. Making anapology for international law in general is beyond the scope of thispaper. Instead, an aspect of international law—the international law of war—will be examined using the theories of Carl Schmitt, a prominentcritic of international law in its post-1890 incarnation.
The Theory of the Partisan
and
Nomos of the Earth,
Schmitt laments that the world order that emerged from two world wars, embodied in the League of Nations and the United Nations,has destroyed the traditional mode of regulation, what he terms the
jus publicum Europaeum
, the law of the European system. In this worldorder that Schmitt deplores, conventional war is over and Europeancivilization no longer arbitrates global conduct. Under the new worldorder, he argues, international law is useless and even dangerous, a toolof the weak that destabilizes the status quo. Schmitt adheres to the idea
boundaries and … sustains law above herself as a public sign of order;law [that] is bound to the earth and related to the earth.”
1
Schmitt’sconcept of “spatial order” is a critical organizing principle. Something that is “good” for the world upholds the spatial order; something thatis “bad,” violates it. Despite being discredited as a Nazi sympathizerby his contemporaries, today Schmitt is experiencing a resurgence asneoconservative thinkers and policy makers attempt to give theoretical
1
Carl Schmitt,
Nomos of the Earth
(New York: Telos, 2003), 42.
The International Law of War as Viewed Through the Spatial Order of Carl Schmitt
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validity to violations of international law.
2
Schmitt, an elegant, lucidtheorist, possessed ideas that, in their crisp beauty, seduce, despite thedevastating outcomes they describe. International law has always been
Schmitt’s eloquent critique provides an excellent starting point for adiscussion on international law. There is a dichotomy between conventional, “civilized,” wargoverned by international law, and unconventional, civil, colonial,or what Schmitt calls “partisan” war that threatens the spatial order.Schmitt argues that unconventional war destroys the international law of war: “The modern partisan has moved away from the conventionalenmity of controlled and bracketed war and into the realm of another,
it ends in extermination.”
3
In fact, partisan war did not destroy thelaws of war but rather created them. This thought reversal becomesespecially important when considering the contemporary application of Schmitt’s language. His characterization of “another real enmity, which
the “War on Terror” and the excuses for violations of international law.However, by placing Schmitt’s statement in historical perspective, itbecomes clear that partisan warfare does not destroy international law but rather creates it. The international law of war becomes a legitimate,
Schmitt marks the beginning of the breakdown of the law of war with the emergence of partisan warfare in the Napoleonic Wars.He writes, “new spaces of/for war emerged in the process, and new concepts of warfare were developed along with a new doctrine of war and politics.”
4
by Clausewitz’ famous dictum that war is “politics by other means.”Clausewitz’ book
On War
was written to address the new form of modern, total war created by Napoleon. Schmitt believes that whileClausewitz “recognizes openly the new ‘potential’ that [partisan war]
2
William E. Scheuerman, “Carl Schmitt and the Road to Abu Ghraib,”
Constellations
13, no. 1 (2006). Prominent neo-conservatives who follow Schmittinclude Jay S. Bybee, Alberto Gonzalez, and John Yoo.
3
Carl Schmitt,
The Theory of the Partisan
(New York: Telos, 2007), 11.
4
Ibid., 3.
of a regular army … unable to germinate the seed which becomes visible here,” and thus did not foresee the full implications of partisan war.
5
Schmitt is most concerned with Spanish guerrilla warfare on
describing “the whole Napoleonic campaign against Prussia in 1806… [as] ‘partisanship on a large scale.’”
6
Schmitt carefully shows how partisan war breaks down the crucialcategories, accepted by the
jus publicum Europaeum
, that separate thecivilian and the belligerent. There is a precarious balance,
and those of its (war) opponents. The partisan disturbs this order… ina dangerous way… because he is more or less protected and concealedby the local people in the occupied zone… The protection of such apopulation [by international law] potentially means also the protectionof the partisan.
7
Schmitt argues that historically, traditional international law, the
jus publicum Europaeum
, acted as a boundary between partisan and
theGeneva Convention of 1949, and the Geneva Protocols of 1977,however, all violate Schmitt’s notion of spatial order and progressively place partisan war within the protection of international law. Thegreat powers must now abide by the laws of war, which appear to be weighted towards the partisan side. Unsurprisingly, great powers seek to place partisan warfare outside of the bounds of the laws of war. “Aprohibition may function as much in its violation as in its observation,”legal scholar Paul W. Kahn explains. “We need borders not just to close
already established the possibility of its transgression.”
8
Partisan war was not the only dramatic political tool to emerge fromthe Napoleonic Wars. The French Revolution and Napoleon swept away a system of regulated balance of power and limited aristocratic warfarethat had held sway in Europe since Westphalia and the dwindling of
5
Ibid., 32.
6
Ibid., 3.
7
Ibid., 17-18.
8
Paul W. Kahn,
The Cultural Study of Law
(Chicago: University of ChicagoPress, 1998), 111.
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