To confiscate the word humanity, has certain incalculable effects, such as denying the enemy the quality of being human ...

 From ‘Regulated War’ to the Return of the ‘Just War’

‘Statesmen should, above all, have the ability to distinguish friends from enemies,’ writes Irving Kristol, one of the principal American neoconservatives in the journal of his son William, The Weekly Standard.[29] Carl Schmitt would not have disagreed with this statement; neither in its descriptive aspect nor in its normative aspect. The very essence of politics consists, according to him, not so much in the fact of hostility as in the possibility of making a distinction between public friends and public enemies — not when a conflict has already materialised, but in respect of potential conflicts. Politics, in other words, implies conflict: a strictly pacific vision of social life is an unpolitical vision. Consequently, the uncertainty of the identity of the enemy constitutes one of the greatest dangers in politics. Schmitt, however, does not maintain the famous formula of Clausewitz, according to whom war is only the continuation of politics by other means. On the contrary, he emphasises that ‘its meaning for the understanding of the essence of politics is thereby still not exhausted.’[30] War is itself, just like the state of emergency of which we shall speak again below, a border concept (Grenzbegriff). It is incontestably an extension of politics because politics implies hostility, but it cannot be reduced to this because it has its own essence. Schmitt emphasises that war has its own perspective and its own rules, and that the latter ‘all presuppose that the political decision has already been made as to who the enemy is.’[31] In supporting the view that politics, even in peacetime, possesses a conflictual dimension, Schmitt adopts a position close to that of Clausewitz, but which should not be confused with it; it tends rather to complete it and to go beyond it. Clausewitz sees what is political in war, Schmitt what is conflictual in politics.

Schmitt posits at the same time a political conception of hostility. The enemy must, according to him, be regarded politically: he must remain a political enemy, that is, an adversary that one must fight, certainly, but with whom one can one day make peace. In the perspective of the jus publicum europaeum,[32] peace clearly remains the aim of war: every war is naturally concluded by a peace treaty. And, as it is only with an enemy that one can make peace, that implies that the belligerents mutually recognise one other. Such a recognition (of the Other, both in his similarities and in his differences) is the very condition that makes peace possible, for only a belligerent whom one has previously recognised can be invited to conclude a peace treaty. This is why Schmitt affirms that an absolute war, a total war, would be a disaster from a strictly political point of view since, by attempting to annihilate the enemy, it eliminates the element which constitutes politics.[33]

Of the ‘regulated war,’ characteristic of the Westphalian order founded on the jus publicum europaeum which replaced the old respublica christiana,[34] Carl Schmitt says that it is a war where the belligerents ‘respect each other at war as enemies and do not treat one another as criminals, so that a peace treaty becomes possible and even remains the normal, mutually accepted end of war.’[35] War conducted according to the old law of nations follows rules governing, for example, the conduct of troops towards prisoners and civilians, the respect for neutral parties, the immunity of ambassadors, the rules of surrendering a stronghold, and the modalities of concluding a peace treaty. It almost never aims at overthrowing a sovereign or changing the government of a country, and is usually fought simply to achieve territorial objectives. Finally, it is an exclusively inter-state reality. The state enjoys at the same time a monopoly of legitimate violence (Max Weber) and a monopoly of political decision (Schmitt), meaning that private wars and family vendettas are forbidden (a prohibition that was gradually extended to the duel). This means that individuals can only be public enemies as members or citizens of a state, and not individually in themselves. In the Westphalian order each sovereign’s jus ad bellum[36] is recognised, for it is part of the liberties or rights constitutive of state sovereignty. Such a system excludes the very idea of ‘international police.’ It also recognises the legitimacy of the neutrality of third parties.

In the eyes of Schmitt, the great merit of the jus publicum europaeum has been to substitute for the Medieval doctrine of the ‘just war,’ with its moral origin, a political doctrine of the ‘war within protocols’ or ‘war in due form’ (Vattel).[37] This new doctrine was introduced when the sovereign states asserted themselves, notably in relation to the Roman Church (as a result of the ‘neutralisation’ of the religious wars that had divided and devastated Europe). This development led first to the recognition of the sovereign character, and equal sovereignty, of states, then to the emphasis no longer of jus ad bellum (the rules governing when a war can be lawfully started) but of jus in bello (the rules governing how a war, once begun, should be conducted). From then on, it is no longer the war that is accepted when it is declared ‘just,’ but the enemy who becomes ‘just’ insofar as he is recognised. War between states is thus a fundamentally symmetrical war. It is modelled on the duel, in which the adversaries mutually recognise each other’s equality and both observe the rules of the same code. Thanks to the formal concept of the justus hostis,[38] of the recognised enemy, international law makes war a regulated confrontation between sovereign states that are formally equal, basically amounting to ‘a duel between cavaliers seeking satisfaction.’[39] 

(...)

After the First World War, a persistent current continued to fight for the suppression and criminalisation of war. It is this mistaken position, and also the persistent ideal of a world where war has been eliminated forever, which leads today to the reappearance of the concept of the just war, and to the legitimation of war by a moral doctrine based on the ideology of human rights. This makes possible once again the war of annihilation, while technological progress permits the development of more powerful weapons than ever before. It is no longer a question of just war in the Medieval sense, which still recognised certain limitations, but the just war conducted in the name of ‘humanity,’ of ‘freedom’ and of ‘right.’ Already, with the Kellogg-Briand Pact of 1928, it is not so much war in itself which was condemned as the right of nations and states to wage it. In this way, wars based on national interest were decreed to be unjust, whereas international war, war conducted in the name of humanity, became the new ‘just war.’ The danger of this development ‘is that it […] imposes on politics the mortal snare of a perpetual peace that has every likelihood of transforming itself into endless war.’[54] It is summarised in the formula, ‘Perpetual war for perpetual peace.’

According to Carl Schmitt, ‘The political world is a pluriverse, not a universe.’[55] The reason for this is that humanity is either a biological category or a moral category; it is not a political concept. Schmitt cites here the famous phrase of Proudhon: ‘[W]hoever invokes humanity wants to cheat.’ ‘When a state fights its political enemy in the name of humanity,’ he explains, ‘it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent.’[56] ‘The concept of humanity,’ he adds, ‘is an ideological instrument especially useful to imperialist expansions. Humanity as such cannot wage war because it has no enemy, at least not on this planet. The concept of humanity excludes the concept of the enemy, because the enemy does not cease to be a human being — and hence there is no specific differentiation in that concept. […] To confiscate the word humanity, to invoke and monopolise such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.’[57]

In France, on 7 August 1793, the deputy Garnier de Saintes, had already proposed to the Convention[58] that the English statesman William Pitt should be declared ‘the enemy of mankind,’ in order that everybody may have the right to assassinate him. To fight in the name of humanity in fact means that one places oneself in the position of decreeing who is human and who is not. That is the paradox: all discussion that claims to efface the boundaries between men to extend the notion of ‘us’ to the totality of the human species ends in recreating in the midst of humanity itself a line of division and exclusion more radical than the ones preceding it. ‘Only when man appeared to be the embodiment of absolute humanity did the other side of this concept appear in the form of a new enemy: the inhuman,’ writes Schmitt.[59] War in the name of morality is thus the very model of the most inhumane warfare. Abstract universalism makes absolute enemies of its adversaries and transforms ‘humanitarian’ wars into wars of extermination.

Following the example of revolutionary France, the United States has never stopped proclaiming that the causes which it defends are consistent with the interests of humanity. ‘[The American] flag,’ said Woodrow Wilson already, ‘is the flag not only of America but of humanity.’[60] ‘We are rapidly becoming a nation of humanitarian crusaders,’ noted Irving Babbitt in 1924.[61] ‘This ideal of America is the hope of all mankind,’ George W. Bush stated in a speech on 11 September 2002, one year after the attacks in New York and Washington.[62]

Instead of ‘humanity,’ Schmitt could just as well have spoken of ‘freedom.’ In the course of history, freedom has also constantly been cited by the United States to justify its enterprises of conquest or annexation. It was by the concept ‘empire of freedom,’ theorised by Jefferson, that it justified its first territorial conquests at the expense of Spain (in Cuba) and Mexico (in Texas). The intervention in Vietnam was also conducted in the name of ‘freedom.’ The same goes for the war on Iraq, which plunged that country into civil war and chaos. In his State of the Union Address of 28 January 2003, George W. Bush proclaimed, ‘The liberty we prize is not America’s gift to the world; it is God’s gift to humanity.’

From this perspective, it is no coincidence that the epoch in which human rights have been proclaimed most forcefully is also that in which the wars fought have proved to be the most inhumane. This observation, according to Carl Schmitt, is not at all paradoxical since it is when fighting in the name of humanity that one is justified in considering one’s enemies as inhuman. Proclaimed humanism ends in actual dehumanisation. The Kosovo War, conducted in the name of ‘human rights,’ resulted in a systematic violation of the rights of the Serbs, as well as a good amount of ‘collateral damage.’ The war conducted against Iraq in the name of ‘freedom’ ended in what General Tommy Franks characterised as a ‘catastrophic success.’ Another reason is that there cannot be timeless fundamental rights, for what is fundamental is always determined by a specific epoch or culture.[63]

Total war marks not only the return to the ‘state of nature’ as Hobbes imagined it. The wars where the enemy is considered as a criminal or an outlaw thereby betray their theological or religious character. Like the crusades, the wars of religion or wars conducted against the heretics or pagans, these are wars without limits, wars taken to extremes, because they come under moral categories between which there can be no reconciliation. ‘It goes without saying,’ notes Norbert Campagna, ‘that evil cannot enjoy “equality under the law” with the good side: the forces that fight for “the good” lay claim to all of the rights, while the forces that are ranged on the side of “evil” find themselves, for their part, deprived of all rights, for it is inconceivable to let the forces of evil enjoy any rights whatsoever [...] The “good” can drop bombs on civilian populations; the “bad” have no right to do so [...] If the cause for which one fights a war is just [then] all hostile acts one commits in it are intrinsically just, however little care one takes to wage it according to the rulebook.’[64] The fight in the name of good authorises not only the interference in the internal affairs of sovereign states (in the name of humanitarianism, freedom, democracy or human rights) but also the restriction of freedoms, the opening of camps that permit the internment of prisoners without any legal status, the bombing of civilian populations, the destruction of industrial infrastructure, the recourse to torture, the use of napalm or white phosphorus, depleted uranium projectiles, cluster bombs, anti-personnel mines, and so on. In a public debate on CBS in 1996, the former Secretary of State, Madeleine Albright, was questioned by Leslie Stahl on the necessity of establishing a blockade against Iraq, thereby bringing about the deaths of 500,000 Iraqi children (‘We have heard that a half-million children have died [in Iraq]. I mean, that’s more children than died in Hiroshima. Is the price worth it?’). Albright’s reply was unequivocal: ‘I think this is a very hard choice, but we think the price is worth it.’[65]

The consequences of equating the enemy with a criminal who should be punished, are therefore considerable. ‘That ends,’ writes Jean François Kervégan, ‘in the transformation of international law into an annex of the penal code, and war into a police action aimed at repressing the guilty.’[66] The repression of crimes and offences being traditionally under the jurisdiction of the police, the military gradually assumes the character of a police force. Already in 1904 Theodore Roosevelt declared that in the future the United States could indeed find itself forced to ‘exercise [the power] of the international police.’[67] In the period between the wars, at the time of the Kellogg-Briand Pact (1928), the ‘prohibition of war’ would lead belligerents to redefine their interventions as so many international police actions in order to avoid the criminalisation of their enterprises. Today, notably in the context of the war on terror, we are witnessing a revealing blurring of the distinction between police and army: while the police are increasingly made to ensure internal order by military means, the army undertakes wars which are regularly presented as international police actions.

In much the same way, the boundary between domestic and foreign politics, that is, between international conflicts and civil wars, is breaking down. As Claude Polin observes, ‘The new wars are and can only be universal (world-wars), merciless (without quarter), unlimited (total) and without rules (these are international civil wars).’[68] Carl Schmitt emphasises on many occasions that the just war inevitably leads to civil war by virtue of the fact that it can be conducted without consideration of the rules of the jus in bello. One of the essential rules of the ‘war in due form’ is the distinction between combatants and non-combatant, between soldiers and civilians. This distinction is automatically effaced in the just wars of modern times, where one tends to consider that the entire enemy population is guilty. The recourse to indiscriminate aerial bombardment, with its destructive power and at the same time anonymous and ‘cold-blooded’ character, is one of the logical consequences of this development.

Today, we also see the proliferation of non-state actors (non-governmental organisations, private and multinational foundations, financial interests, lobbyists, etc.) in all the domains of international life. This evolution has redefined the relationships between the public and the private spheres, and between the civilian and military sectors. Whereas soldiers become more and more ‘technicians’ or ‘civilians in uniform,’ we simultaneously see an accelerated privatisation of all that relates to security (or to preventing insecurity). The privatisation of war does not result merely from the fact that, in many theatres of operation, the belligerents are civilians who have taken up arms, or from the fact that certain criminal organisations now have recourse to veritable private armies, as is the case with drug-traffickers. Another notable fact is the reappearance of private mercenary armies, notably in the United States, where in the absence of conscription, enrolment in the regular army is relatively small in relation to the total population.

The private military companies, or PMCs, independent or not of the military-industrial complex, today occupy a rising position in the architecture of the American military and national security (especially since their use compensates for the reluctance of Congress to put in regular troops on the ground). The turnover of such companies, in some cases listed on the stock market, is constantly growing. The best known are DynCorp Inc., Military Professional Resources Inc. (MPRI), Kellogg Brown & Rott (KBR), Blackwater Security Consulting, Erinys, Sandline, Titan and Caci International. KBR, which belongs to the Halliburton multinational, where several members of the Bush government hold personal interests, signed a 200 million dollar contract with the Pentagon on 13 June 2003. The security company Blackwater has itself deployed almost 50,000 mercenaries around the world. These private companies, which are always looking for new markets related to defence and security, have been pivotal in the redeploying American power in the Persian Gulf. Today, they are especially active in Iraq, where nearly 20,000 mercenaries provide logistical support for the regular forces, without any excessive care of the choice of means (and without their deaths being counted among the losses suffered by the American military). These auxiliary combatants, who are sometimes paid as much as 1,000 dollars per day, are not subject to any rules, conventions or regulations. Their status is eminently paradoxical for, although legally employed by the United States, under international law they are considered illegal combatants.[69] ‘The private military companies employed by the Pentagon (sometimes at unreasonably high costs),’ writes Sami Makki, ‘have become essential for a new interventionist strategy based on the capacity to rapidly deploy forces anywhere in the world.’[70] The mercenary ‘market’ is today estimated at 100 billion dollars a year.[71] Concomitantly, but in an opposite direction, we see a militarisation of humanitarianism, due to development and humanitarian aid themselves becoming auxiliary instruments in the fight against asymmetric threats, as well as in the expansion of influence on the international scene.

The effacement of boundaries between the classical categories of aggression culminates in the confusion of the notions of war and peace themselves. When the enemy is set up as a figure of evil, it is no longer possible to make peace with him, for to make peace would be to compromise with evil. In the old law of nations (jus gentium), defeat was considered sufficient ‘punishment.’ Now, one has to impeach before tribunals those whom one stigmatises as ‘responsible’ for the war. The indefinite pursuit of war, even in times of peace, then becomes a moral imperative. Carl Schmitt saw that the Treaty of Versailles and the Kellogg-Briand Pact created an intermediate state between war and peace in which peace became a sort of pursuit of war by other means.[72] This situation has not ceased to evolve ever since, ending up as near-indistinguishability. The ‘just war’ of modern times no longer ends in a peace treaty in good and due form, but is pursued in peace under other forms. Once the guns have fallen silent, the guilty should still be punished, while the enemy population should possibly be ‘reeducated.’ The wars no longer end: they become interminable, for it becomes much more difficult to put an end to them when they are pursued also in peace. ‘Cold war’ or ‘hot war’: aggression becomes, under different forms, a permanent condition. It is at the same time an eradication of the border between the exception (which is war) and the norm (which is peace). Finally, given that according to Carl Schmitt, politics implies the recognition of the enemy, Clausewitz’s classic formula that war is the continuation of politics by other means is reversed: war becomes instead ‘the destruction of politics by every means.’[73]

This erosion of the border between war and peace is much more damaging to the concept of peace than the concept of war. There are two reasons for this. First, because the concept of peace cannot be interpreted in as many ways as the concept of war (there is at most only one form of peace while there are numerous forms of war). And second, one wages war to obtain peace and not peace to obtain war, and the end should always be more clearly defined than the means of arriving at it.

Alain de Benoist

Carl Schmitt Today

Terrorism, ‘Just’ War, and the State of Emergency