unlimited war on the idea of limited war

hello folks. i’m very tired. please find below a 5000-word max final paper for a course on war and peace in the history of political thought. bit of a different one!


something something introductory chapter of my thesis something.

click here to see how it got evaluated.


unlimited war on the idea of limited war

An account of the idea of irregular civilian participation in armed conflict in modern and contemporary thought: partisans, terrorists and pirates in Gentili, von Clausewitz and Schmitt

Introduction

This essay aims to provide an account of the idea of irregular civilian participation in international hostilities in modern and contemporary thought, exploring the categories of pirates, partisans and terrorists in the thought of Alberico Gentili (1552 – 1608), Carl von Clausewitz (1780 – 1831) and Carl Schmitt (1888 – 1985). After an introduction setting the historical and philosophical boundaries for the rest of the essay, the main body will be concerned with addressing the issue of distinguishing what in contemporary terms may be termed terrorists and freedom fighters. After a definition of the figure of the partisan according to Schmitt, the essay will provide Schmitt’s tentative distinction between “real partisans” and “international revolutionaries” on the basis of limited and unlimited enmity, and correlate it with von Clausewitz’s views on limited and total war. The following part will then proceed to contextualise the category of civilians participating in hostilities within a wider political framework of unlimited enmity. After clarifying the relationship between Schmitt’s partisan and the contemporary terrorist, the legal regime for the repression of piracy will then be analysed responding to calls for the implementation of a similar regime against terrorists, leading into the conclusion where the desirability of such a result, and the contradictory bases for, and consequences of, the tendency to total war, are questioned.

For there to be irregular combatants, first there must be regular armies

A fact that is perhaps little-known outside of Law of Armed Conflict scholarship is that, to this day, there is still no internationally agreed upon legal definition of terrorism (English, 2021; Grozdanova, 2014). Continued salience in international political discourse and practice notwithstanding, it seems that international law hasn’t fully come to terms with the irregular combatant yet, although certainly not for lack of trying (Saul, 2005). The phenomenon of civilian participation in hostilities, however, long predates contemporary terrorism. Indeed, the current conceptualisation of civilian involvement in hostilities under international law, is the culmination of a historical effort to shield innocents in war by ensuring they are truly extraneous to the conduct of hostilities (Camins, 2008), giving rise to the category of civilians directly participating in hostilities[1].

This essay endeavours to trace the evolution of the idea of civilian participation in armed conflict through the perspectives of three influential authors: Gentili’s in De Iure Belli Libri Tres, von Clausewitz’s in On War, and Schmitt’s in Theory of the Partisan. This exploration of the irregular combatant will be framed in relation to the “power and significance of the regularity that he challenges” (Schmitt, 1963). For this reason, this longitudinal view will be limited by a historical cut-off, corresponding to the conjuncture of the establishment of modern standing armies (Mears, 1988) in the context of the so-called Military Revolution (Roberts, 2018) following the birth of the Westphalian nation-state.

Perfect War and Universal Protections

Parallel to the historical baseline established above, it is opportune to also set a philosophical equivalent with regards to the conceptualisation of war, and with it starting this essay’s exploration of the development of the idea of civilian direct participation in hostilities. In this essay, this role will be fulfilled by Gentili and his theorisation of “perfect war”, which is seen by Schmitt as a significant step forward in comparison with other early International Law theorists such as Grotius (1583–1645), whom believed that a war could not be just on both sides[2], and Vitoria (1483–1546), whom only admitted such a “contradictory” situation in case of a party’s excusable ignorance of their being in the wrong[3].

Showing a remarkably modern sensibility, Gentili instead believed it impossible to faithfully discern the parties’ real motivations for war and contemplated the possibility that the war could be just on both sides[4]. According to Gentili, both sides of any conflict should be treated as equals, with war acting as a sort of trial of last resort in which fighting parties should be judged by the reasons why they decided to resort to violence, as well as by their conduct during the hostilities, rather than by attempting to objectively determine whose side is morally right (Vadi, 2020).

Gentili’s “perfect war” theory provides a less morally charged conceptualisation of armed conflict, setting the stage for the development of the figure of the irregular fighter. Gentili is, in this sense, a product of the newfound issue of contested moral authority, after the tumultuous season of early Reformation and Counterreformation in Europe. While his position does not quite correspond to our contemporary conception of jus in bello as it emerged in the early 20th century (Kolb, 1997), it still constitutes a significant departure from the medieval tradition of just war, aligning with the new conception of public international war consequent to the emerging Westphalian geopolitical order (Vadi, 2020).

Two elements of Gentili’s conceptualisation of war will be particularly relevant to the rest of this discussion, as they connect to the reflections of the two other authors presented in this essay. Instead of sliding into relativism, Gentili’s approach to war as a duel[5] with no clear moral divide, which was shared by von Clausewitz [6], naturally shifts the theoretical focus on what would become the future jus in bello, with a belief in the need to extend humanitarian protections to all combatants within a conflict, not just to those in the right. Much like Schmitt, however, Gentili believed irregular combatants should be excluded from this framework, as they threatened not only the entity they are at war with, but rather the international legal order itself. By virtue of rejecting the law of nations, brigands, rebels, and pirates – particularly the latter “considered common enemies of mankind” by Gentili – were not entitled to any protection from the state and they could be legitimately targeted with “unlimited violence” (Vadi, 2020).

Is one man’s terrorist another man’s freedom fighter?

Who is the partisan?

The figure of Schmitt’s partisan stands in active dialogue with the thought of von Clausewitz and Gentili, as well as with the military and political developments of modernity. The partisan is negatively defined as irregular, because he behaves differently than the regular forces he opposes. The partisan is also highly mobile, agile, fast; he[7] takes advantage of his reduced operational bloat to surprise the regular army; he is a pioneer of modern weaponry and mechanised warfare. The partisan is tellurian; he holds a deep connection to his territory, its population, and its geography. It is very hard not to see in this concept an echo of the Clausewitzian “sense of locality”[8]; but whereas Clausewitz’s ideal commander was advised to acquaint himself with his territory through leisurely hunting, the “real” partisan will most likely have a deep, grassroots connection with his land [9]. This characteristic, combined with the partisan’s penchant for mobility, firmly grounds the partisan in the modern to contemporary period covered in this essay, reconfirming its viability[10]. Finally, the partisan is intensely politically committed, a characteristic that allows for a critical comparison with the contemporary category of terrorist while distinguishing him from thieves, criminals, and most importantly pirates.

The above described modern partisan, defined in opposition to a modern conduct of war – characterised by state actors employing regular armies to conduct wars that are not personal but rather part of international relations – will constitute a fundamental reference of this essay as it attempts to trace the development of the concept of irregular civilian participation in hostilities, up to and including contemporary issues, through the lens of the three aforementioned authors. In doing so, this essay will explore the consequences of following Schmitt’s framing of international ideological partisanship, analogous to some contemporary terrorism, as a return to total warfare as conceptualised by Clausewitz.

Real and Absolute Enmity

To this day the phenomenon of terrorism lacks a legal definition, and even apparently evident lines such as the targeting of civilian infrastructure (Ganor, 2002) have not been considered universal enough to distinguish “one man’s terrorist [from] another man’s freedom fighter” (Laqueur, 1987). Faced with the issue of an arbitrary distinction between a positive and negative conception of the civilian participating in hostilities, Schmitt proposes a definition of two types of partisans, the “real partisan” and the “international revolutionary” (Schmitt, 1963; Werner, 2010) along a different fault line: not the merits of their cause, but the nature of their enmity.

The first type, which Schmitt favours, is the real, autochthonous partisan, who defends his homeland against a real enemy on a concrete territory. It follows the “unprecedented” mass mobilisation of civilians in France (Blank, Dincecco and Zhukov, 2017) during the French Revolution (Forrest, 2003), its ancestor the American Revolutionary War (Murphy, 1959), and it is perfectly exemplified by the untraditional calls for a German levée en masse in response to Napoleon (Geyer, 2001; Wilson, 2017). With it, Schmitt harkens back to von Clausewitz’s ideal of a people rising in a spontaneous levée en masse to defend their country against foreign invasion, particularly the Napoleonic wars[11]. This only apparently antiquated legal category corresponds to the oldest form of direct civilian participation in hostilities within the historical perimeter defined in this essay’s introduction.

In contrast to that, the “international revolutionary” advances an abstract, ideal cause against an absolute enemy. In this sense, the international revolutionary is closer to our modern conception of the religious or universal political terrorist, insofar as he advances a universalistic ideal and ushers in a new era of total war, where “the traditional legal ordering of states and state violence is put under threat by a global partisan civil war guided by conceptions of what is ‘good and just’” (Kochi, 2006). This tension can be conceptualised using Schmitt’s categories in terms of an opposition between the global political network of friendship and enmity, which rests on the threat of violence, and the contemporary incarnation of the Westphalian, Weberian tradition centred around international political institutions. The latter constitute the epitome of the modern tendency to limit violence by prohibiting states from using force as a dispute resolution mechanism even though in theory it is a key prerogative of their sovereignty.

Schmitt’s dislike for the international revolutionary extends far beyond its association with communist and socialist internationalism. In the consolidated Westphalian order of international relations, the “international revolutionary” terrorist exploits the asymmetry between the responsibilities characterising the Weberian state with its monopoly on force, while in practice depriving it of such a monopoly. While the “real partisan”, while clearly having an enemy, aligns himself with a cause that fits neatly into the Westphalian conception of international relations, the “international revolutionary” betrays the fabric of nation-state relations by opposing sovereignty in the name of a universal cause.

Unlimited War Against Unlimited Enmity

The tension between limited war and total war can be traced back to von Clausewitz’s writing, where it creates an apparent contradiction between his conception of war as a duel and his support for an anti-Napoleonic levée en masse. The former seems to encapsulate the Westphalian ideal of a limited, hyperregulated, almost formalistic confrontation, harkening back to the days of cabinet wars that preceded modernity; while the latter pushes in the opposite direction, towards a grassroots movement aligned with Schmitt’s “real partisan”. This is a false dichotomy, as indeed both perspectives seem to be supported by the original texts. Von Clausewitz’s work, contrary to his own assessment[12], is coherent and cohesive. It appears then that von Clausewitz, after proposing this seminal categorisation, connected the limited war of Westphalian nature to a state of normalcy in the modern era, and partisan warfare in the form of a levée en masse to an unconventional response to the disregard that Napoleon’s imperial expansion posed to that Westphalian balance.

Once again, in order to make sense of the contribution of the single civilian participating in the hostilities outside of subjective political claims of righteousness, a wider political and observational frame must be adopted. This framing is what turns the participant in a levée en masse and the partisan into more than “simple” criminals; and it is what, in Schmitt’s eyes, separates their legitimate political struggle from the universalist crusade of the international revolutionary. By declaring war on limited war itself, the terrorist not only positions himself outside of the framework of limited warfare, but also pushes all but the most principled states to follow him. Schmitt critiques the following “war on terrorism as a morally inspired and unlimited ‘‘total war’’, in which the adversary is not treated as a just enemy”, rendering the traditional rules of warfare “obsolete” (Koskenniemi, 2004).

Schmitt sees this return to total war fought for universal concepts as a failure consequent to the expansion of the regime of Jus Publicum Europaeum to the entire world. In his view, the sudden invalidity of spatial criteria as a basis for exclusion from the protection of limited European warfare would lead to the creation of other exclusions, which would be transversal to space and instead based on universal concepts. Thus, Schmitt could be said to have predicted, in nuce, the Global War on Terror, with its political call to unrestrained violence against an international revolutionary terrorist enemy with an ideological cause; and with the reintroduction, without the solid history of the prevention of piracy, of the inapplicability of laws of war to enemies of humanity.

In this context of renewed legal universalism, Schmitt argues that “the laws of armed conflict are unable to regulate irregular warfare, including acts of terrorism” (Werner, 2010). After all, if the State no longer holds the monopoly on violence and acts of violence are only considered legitimate because of political judgements based on friendship and enmity, the terror employed by the state and the one unleashed by the terrorist are no different (Kochi, 2006).

Conclusions. Making war total again?

If Pirates are Hostis Humani Generis – Why Not Terrorists too?

While many aspects of International Law have massively evolved since Gentili, the conception of pirates as hostis humani generis (enemy of the human race), “an epithet universally acknowledged to be at once semantically void and uniquely legally productive” (Greene, 2008) remains intact and in force[13]. There have been frequent calls to implement a comparable global framework to combat terrorism[14]. Even though these two categories constitute prima facie two comparable examples of civilians engaging directly engaging in the conduct of hostile behaviour, they have deeply different conceptual and historical roots can be considered different in two important ways.

First, there is no equivalent on land for the concept of “high seas”, meaning an area that is outside of the sovereignty of any State. The legal framework around the high seas as a global commons[15], born out of necessity more than idealism [16], has long been enshrined in customary international law: the concept of the high seas thus pre-exists and eschews the Westphalian state sovereignty system. Even the historical parallel with the European political conception of colonised land as land that was free to occupy[17] does not perfectly correlate to this specific concept[18]; however, it is interesting to note that Schmitt’s adoration for the jus publicum europaeum was balanced by the belief that the rest of the world should remain outside of the purview of civil war, and exclusively the domain of colonial war[19].

Since terrorism can also occur on the high seas[20], a second, more constitutive definitional difference between piracy and terrorism emerges: the pursuit of private rather than political aims. Pirates, by definition, commit their illicit activities for private gain in a sort of no man’s land – if we are to interpret common goods jurisdiction as negative – and their illicit activities are a threat to everyone, or, more practically, to everyone’s international commerce routes (Bendall, 2010) – if we are to interpret common goods jurisdiction as positive[21] . On the other hand, the undefined terrorist may act anywhere, including within a state’s territory, either against that state because of specific political aims or because of universalist claims based on ideology or religion.

Fighting a Partisan Like a Partisan: Making and Breaking Total War

At the end of this brief exploration, it appears evident that von Clausewitz’s distinction between limited and total war remains a strong basis for categorising not only real-world instances of civilian participation in armed conflict but also the development of their interpretation. This framework comfortably applies to both modern and contemporary events, allowing for a longitudinal analysis of the evolution of the concept of irregular combatant.

While Schmitt’s perspective is an interesting attempt at separating partisan warfare in two non-discretional categories, it carries a series of potential limits. Schmitt highlights the “real” partisan’s link to an “interested third party”[22] as both necessary for the material prosecution of the partisan cause, and for placing himself within the friend/enemy dichotomy, grounding his position within the political space as conceived by Schmitt[23]. In addition, this process ensures that the civilian combatant is a “real partisan”, who wages a limited war against a real enemy, and whose cause fits within the Westphalian view of international relations, rather than an “international revolutionary”, who wages a total war for an ideological cause, thus clashing against the very system of political friendship and enmity.

While this approach is insightful, “there is a danger of merely affirming his law of structure and reducing legal, ethical and political judgement to the interest of protecting friends and destroying enemies” (Kochi, 2006). In his attempt to clearly “circumscribe […], the figure of the genuine or authentic partisan”, Schmitt’s criteria “not only mutually contaminate one another but also contain the reasons why the partisan can become either a mere criminal or a revolutionary fighter with little or no resemblance anymore to his […] political figure” (Gasché, 2004).

In addition, as Kochi suggests, the drive to eliminate absolute enmity is not exclusive to contemporary “international revolutionaries” such as extremist Islamists, but also risks contaminating the Westphalian states that go up against them, such as, in this case, the United States’ ‘war on terror.’ The danger lies in the temptation to view the opponent merely as an object of violence if there is no reasonable expectation for them to win the confrontation[24]. This temptation is not just a matter of scholarly concern: “the enemy under attack in policies of targeted killing is not the justus hostis of classical international law. Instead, he is individualized, denied the right to participate in hostilities, and regarded as an enemy, criminal, and risk at the same time” (Werner, 2010).

While the law of armed conflict still lacks a definition for terrorism, the legal category of “combatant”, whose imperfections Schmitt himself highlights in light of modern weapons and tactics[25], still provides what are effectively civilians with protections connected to their participation in international hostilities[26]. In practice, though, these protections are easily foregone, in non-international armed conflicts, through policing exceptions, and, most importantly through the instrumental use of the political term of “terrorist”. This is, in essence, the process that led to the establishment of the Guantanamo Bay Naval Base (Scheuerman, 2006), used as a detention camp for a limited number of terrorism suspects, and it perfectly corresponds to the drive to model an international legal regime against terrorism on the historic one against piracy.

This blurring of the line between criminality, warfighting and political action is troubling: “if the pirate, the terrorist, and the torturer are infinitely spectral, that spectre will inevitably turn out to be us” (Greene, 2008). And although the universal jurisdiction against pirates as common enemies of mankind is now consolidated, it is important to be cautious of any move towards its expansion, as it effectively dehumanises an entire category of people by virtue of their animus furandi[27].

Schmitt himself would oppose such a universalistic position as not only rhetorically cheap, but also a dangerous return to discrimination and dehumanisation on the basis of universal categories[28]. However, the solution he proposes – going back to selective territorial application for applying the jus publicum europaeum – is patently unacceptable, too. In this view, Gentili and von Clausewitz’s conceptualization of war as a duel, which implied the possibility that war could be just on both sides (Vadi, 2020), feels refreshingly modern; Clausewitz’s popular levées en masse respond to patriotic defence instincts and not to limitless ideological zeal, while their loyalty remains tied to the state.

Indeed, Schmitt recognises that “the ability to recognise a justus hostis is the beginning of all international law”[29], and that “the logic of justa causa without recognition of a justus hostis” leads to states and irregulars treating each other as “criminals and parasites”[30]. Facing irregular fighters, states “tend to get enmeshed in a logic of terror and counter-terror, in which they deny legal protection to the enemy” (Werner, 2010). In this way, irregular fighters disrupt international law’s goal of limiting warfare to an interstate affair, leading to a return to total war. Quoting Schmitt: “in the vicious circle of terror and counter-terror, combat against partisans is often only a mirror image of partisan warfare, and time and again the correctness of the old adage – usually cited as Napoleon’s order to General Lefèfre on September 12, 1813 – proves to be true: in fighting the partisan anywhere, one must fight like a partisan”[31].

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[1] See the direct participation exception as outlined in Art. 51(3) of the 1st Protocol Additional to the Geneva Conventions of 12 August 1949, and in Art. 13(2) of the 2nd Protocol Additional.

[2] See Grotius, De iure belli ac pacis, ii.23.13.

[3] “Where there is provable ignorance either of fact or of law, the war may be just in itself for the side which has true justice on its side, and also just on the other side, because they wage war in good faith and are hence excused from sin. Invincible error is a valid excuse in every case”. See Vitoria, “On the Law of War”, ii.4, p. 313.

[4] See Gentili, De iure belli, I.6, p. 33: ‘the war is just on one side, but on the other is yet more just’

[5] See Gentili, De Iure Belli, I.2.

[6] See von Clausewitz, On war, II. I. p. 101: “War is nothing but a duel on an extensive scale”.

[7] Schmitt’s partisan is a “he”, and will be referred as such throughout the essay, as the gendered aspect of partisan guerrilla was not discussed by either of the three authors and thus will not be considered in the main argument.

[8] See von Clausewitz, On war, II, 3. p. 153.

[9] This characteristic, combined with the partisan’s penchant for mobility, firmly grounds the partisan in the modern to contemporary period covered in this essay, reconfirming its viability. The birth of the partisan is at a time of revolution in the technology of warfare; but that revolution is not far along to render a tactile feel of the battleground irrelevant. In contemporary times, the partisan may still closely abide by this identikit, because his subversive cause may prevent him from accessing the expensive military and intelligence equipment that provides real-time and precise visibility on the territory and on enemy movements. See Schmitt’s discussion of the telluric nature of the partisan, e.g. Theory of the partisan p. 21.

[10] The birth of the partisan is at a time of revolution in the technology of warfare; but that revolution is not far along to render a tactile feel of the battleground irrelevant. However, Schmitt wonders about the impact of technological development on the partisan: see Schmitt, Theory of the partisan, p. 22: “Even the autochthonous partisan of agrarian background is being drawn into the force-field of irresistible, techno-industrial progress”.

[11] While Schmitt emphasises the Spanish guerrilla of 1808, he believes von Clausewitz was most strongly influenced by the debate around the Prussian Landsturm edict of 1813: see Kochi (2006).

[12] On War was published posthumously, as von Clausewitz continued to rework the text until his death.

[13] The contemporary legal notion of piracy, enshrined in the binding 1982 United Nations Convention on the Law of the Sea (UNCLOS), compels all states to fully cooperate in the repression of piracy (Art. 100), defined as illegal acts committed by private entities and for private ends on the high seas (Art. 101); to this end, States are provided with universal jurisdiction (Art. 105) to arrest pirates and seize their ships, aircraft and property.

[14] See the case of Lieutenant General (ret.) Moshe Ya’alon, the head of the Israeli Defense Force’s intelligence branch at the time of an Israeli assault on Hezbollah in 1996, tried in the U.S. under the Alien Tort Statute (ATS). See also political declarations such as: “The threat posed by terrorists is just as universal as that once posed by pirates, and like piracy, terrorism should be prosecuted as a universal crime against humanity.” (Senator Arlen Specter).

[15] See UNCLOS part VII. “The high seas shall be reserved for peaceful purposes.” (Art. 88); “No State may validly purport to subject any part of the high seas to its sovereignty.” (Art. 89); “Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.” (Art. 90).

[16] See Ranganathan (2016). Indeed the territorial waters were once defined as the maximum length of a cannon shot from the shore. See Walker (1945); Pogies (2021).

[17] A political justification which had already been challenged by contemporary philosophers, such as Vitoria in “On the American Indians”.

[18] See Moore (2021): “Prominent global justice theorists Beitz (1979) and Pogge (2008) have extended Rawls’s argument so it applies globally: They point out that the natural resources of the world are not attached in the relevant way to any particular individuals or communities, as no one has labored on them, so they should be available for the common good of all people. That argument applies with even more force to unoccupied places because the natural resources are also not central to any group’s collective self-determination”.

[19]  “[For Schmitt], the notion of enmity was limited to European territory – wars at sea and colonial wars were excluded from its operation.” See Werner (2010). See also Schmitt, Theory of the partisan, p. 11.

[20] See Halberstam, 1988: “It was not clear from the newspaper reports whether the initial seizure [of the Achille Lauro, an Italian-flag cruise ship] was on the high seas or within the territorial waters of Egypt. […] However, there is no doubt that the ship was on the high seas while being held by the hijackers.” “The United States characterized the seizure as piracy, a position that has been supported by some commentators and opposed by others.”

[21] For a discussion of positive and negative jurisdiction in international spaces such as the high seas, see Cinelli (2020).

[22] See Schmitt, Theory of the Partisan, p. 75.

[23] “In being dependent upon an interested third party so as not to sink into the realm of criminality, the partisan presupposes not only an enemy but also a friend.” Kochi (2006), p. 283.

[24] See G.L. Ulmen, Introduction to: Schmitt (1938 and 2006).

[25] For instance, Schmitt reacts to precisely the requirements for members of a militia to be recognised as combatants (and entailed to the consequent rights and protections under Law of Armed Conflict):“[…] what is the meaning of the rule that weapons must be “carried openly”, when a resistance fighter in the Swiss “Everyman’s Guide to Guerrilla Warfare” says: “Move only at night and rest in the woods during the day”? Or what is the meaning of the requirement of a clearly visible badge of rank during combat at night or in a contest between long-range weapons of modern technical warfare?” See Theory of the Partisan, p. 26

[26] See the ICRC Casebook, “Combatants”. Combatants include members of the armed forces, members of militias and volunteer corps if they follow a series of conditions, and participants in a levée en masse, which is specifically defined as an unorganised form of spontaneous resistance against an invading force.

[27] “The phrase had always, by definition, been tied to the status of the human and the nonhuman, denoting not only a relationship between two groups of beings—those who are humans and those who make war on humans—but also a characteristic unique to the latter group, the fact that they may not themselves be part of humankind at all”: Greene (2008), p. 701.

[28] “Whoever invokes humanity wants to cheat. To confiscate the word humanity, to invoke and monopolize 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”. See Schmitt, The Concept of the Political (1932)

[29] G.L. Ulmen, Introduction to: Schmitt (1938 and 2006).

[30] Schmitt, Theory of the Partisan, p. 30.

[31] Schmitt, Theory of the Partisan, p. 13


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