View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by CLoK RETROSPECTIVITY AT NUREMBERG: THE NATURE AND LIMITS OF A SCHMITTIAN ANALYSIS By SUSAN MARY TWIST A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy at the University of Central Lancashire VOLUME I OF III JUNE 2012 ABSTRACT This doctoral thesis firstly examines the issues surrounding the retrospective deployment of criminal law in the context of international War Crimes Trials, specifically the empirical model presented by the Nuremberg Trial of the Major War Criminals 1945-46 at the end of the Second World War. Secondly, it evaluates the theoretical perspectives and ambiguities within the writings of Carl Schmitt during the period from 1912 until the immediate aftermath of WWII. Thirdly, it extrapolates an analytical model from Schmitt’s work with which to scrutinise and evaluate the utilisation of ex post facto criminal law at Nuremberg. Established literature deals comprehensively with the prevailing state of international law prior to Nuremberg, whilst there is also a wealth of documentary evidence and academic commentary, both laudatory and critical upon the prelude to the Trial proceedings and the ensuing juridical process. This thesis, however, focuses upon the deficits inherent within the hitherto largely undifferentiated notion of ‘retrospectivity’ and the formulation of an appropriate typography of the retroactive strands latent within it. Following an elucidation of the historical significance and provenance of the doctrine: nullum crimen sine lege nullum crimen sine lege praevia; nulla poena sine lege praevia, that is, ‘no crime and no punishment without previously established law’, it explores and evaluates the salient provisions of the Nuremberg Charter unilaterally enacted by the Allies on 8th August, 1945, under which the entire trial proceedings were subsequently governed. The segments of the Charter ostensibly reliant upon the deployment of ex post facto criminal law are extracted, analysed and linked to the relevant strands of retrospectivity, identified within the postulated typography. The thesis also explores the defining qualities and assumptions of a Schmittian approach to domestic and international law and the extent to which this is derived from the seminal theory of Thomas Hobbes. Several monographs and numerous articles have been devoted to scrutiny of the writings of Schmitt but none have dealt specifically with his international law perspective towards retrospectivity or, in consequence, the nature and limits of such analysis. Extrapolation of an analytical model/interpretative scheme and application of it to the specific issues arising from the concept of retrospectivity, in the particular context of Nuremberg, also facilitates formulation of a critique of the viability of this stance. In an age of seemingly burgeoning war crimes and crimes against humanity, the need to punish alleged perpetrators is manifest. This thesis, however, suggests that even a Schmittian perspective is capable of illuminating the toxic ramifications of violation of the ‘rule of law’ in furtherance of this perceived imperative. CONTENTS VOLUMES I, II and III VOLUME I CHAPTER ONE - INTRODUCTION: INTO THE VORTEX 1 Introduction 2 CHAPTER 2 - NUREMBERG: UNVEILING AND SCRUTINY OF THE PERVASIVE 8 RETROSPECTIVE STRANDS Introduction 9 The Trial 14 The Historical context 15 The pre-emptive provisions 36 Article 3 of the Charter 36 The defences of ‘acts of state’ and ‘superior orders’ 38 Article 7: the doctrine of ‘acts of state 39 Article 8: the defence of ‘superior orders’ 50 The Defences of ‘acts of State’ and ‘superior orders’: the conceptual and retrospective convergence 57 The defence of ‘tu quoque’ 60 The ‘conspiracy’ indictment 67 Article 6: the substantive ‘offences’ 77 War crimes 79 Summary and evaluation of Article 6 (b) 87 Crimes against humanity 89 The timescale 94 The actus reus of the offence 96 The victim 104 Relevance of the lex loci 112 Summary and evaluation of Article 6 (c) 115 Evaluation of facet (i) – the ‘lex loci’ 117 Acts committed on German soil 117 Acts committed in parts of Europe outside Germany 117 Evaluation of facets (ii), (iii) and (iv) – peacetime acts, persecution and the identity of the putative victim 119 Crimes against peace 122 Summary and evaluation of Article 6 (a) 148 Individual responsibility 153 Individual responsibility in the context of waging wars of aggression: Article 6 (a) 153 Individual responsibility in the context of war crimes: Article 6 (b) 163 Individual responsibility in the context of crimes against humanity: Article 6(c) 164 Individual responsibility in the context of conspiracy: Article 6 and Count One 166 of the Indictment Individual responsibility: a summary of retrospective aspects 168 Articles 9 and 10: Organisational guilt 171 The aftermath of the Trial 179 The dilemmas posed by the Nuremberg proceedings 186 Typography of retrospectivity 195 Conclusion 203 VOLUME II CHAPTER 3 - CARL SCHMITT IN CONTEXT AND THE SCHMITTIAN SKEIN 1 The protagonists in profile 2 The scene is set 6 The search for a system 14 A personal sketch 17 A blighted Constitution and the death of a Republic 21 The German positivist tradition and Schmitt’s early ventures into the realm of legal and political 29 theory The enigma of Thomas Hobbes (1588-1679): a political theorist belonging de facto to the history of the natural law tradition and de jure to the history of legal positivism 39 An overview 39 A life in the shadow of turmoil 43 Leviathan: averting an apocalypse: negating the state of nature and the ‘laws of nature’ 45 Man’s covenant with Man and the creation of the Commonwealth 52 Reciprocity within the Commonwealth: obedience and protection 55 The sovereign makes the ‘law’? 59 Individual rights: enforceable or spectral? 66 Within the Leviathine labyrinth: a discourse between sovereign’s representative (R) and subject (S) 66 The lingering enigma 74 Handing over the baton 75 The Schmittian skein 75 The analytical challenge 75 The ‘why’: the iron and golden threads 78 The iron thread unchained 80 The first glistenings of the golden thread 83 Elucidation of the golden thread: Article 48 under scrutiny 86 Dictatorship dissected: commissarial and sovereign dictatorship – the ‘what’ and 90 the ‘how long’ The exception, sovereignty and the decision: the ‘when’, the ‘who’ and the ‘how’ 105 The ‘when’: the exception 105 The ‘who’: sovereignty 110 The ‘how’: the decision 113 The ‘where’: the ‘political’ 126 The ‘whom’: the role of the individual within a communitarian setting 136 The individual within the political 136 The individual and the state 139 The individual within Schmitt’s re-formulation of the Hobbesian reciprocity between 151 obedience and protection Hobbesian obedience 152 Hobbesian protection 152 Schmittian obedience 153 Schmitt: protection or dominion? 156 The ‘whence’: the will of the people and the democratic concept of law 168 Revamping decisionism: is not the die yet cast? 168 The backdrop 169 The early years: distrust of ‘the people’ 172 A paradox too far: grasping the ‘people’s will’ 178 Homogeneity invoked 178 Homogeneity and immanence 178 Homogeneity and transcendence 183 The temporal sequence 184 God as the foundation for the legal order 186 The normativist ‘solution’ 187 The Hobbesian social contract theory - a covenant between individuals as the foundation of the state 189 Viability of sublimation of the ‘will of the people’ 193 The pouvoir constitue and the reconceptualisation of representation and 194 identification Instrumentalisation of the pouvoir constituant 201 The positive concept of the constitution and Article 48 205 The people’s will in decline 211 ‘The wherefore’: the apogee of Schmitt’s anti-liberal invective 214 Introduction 214 Who guards the constitution? 215 The golden thread made perfect 217 The links within the iron thread interlocked 220 The iron thread fully forged 223 Exemplification of the iron thread: the principle of ‘equal chance’ 230 Consummation of the Weimar skein 237 The way forward 241 VOLUME III CHAPTER 4 - THE UNRAVELLING OF THE SKEIN 1 ‘The whither’: concrete-order thinking 2 The decimation of legal positivism 5 Disenchantment with decisionism? 7 The quest for a third way 11 Judicial discretion within the three types of juristic thought 16 Through the lens of a normativist mode of thought 16 From a decisionist standpoint 18 1933 - the permeation of concrete order thinking 22 Consequences of Schmitt’s turn to concrete order thinking 28 CHAPTER 5 - RECONFIGURATION AND CONSUMMATION OF CONCRETE ORDER 31 THINKING A world of dilemmas 32 The challenge unfolds 38 Antipathy towards attempts to eradicate ‘war’ as an empirical reality and a preface to its confluence with the concepts of just war and unjust enemy 40 Epochs of Europe 45 The res publica Christiana 45 The age of the conquistador 49 The age of state supremacy within the jus publicum europaeum 51 The Monroe Doctrine: the advent of US imperialism 63 The plunge of the jus publicum europaeum into the abyss of value neutrality 70 The Treaty of Versailles: acceleration towards annihilation of the JPE? 76 The Kellogg-Briand Pact and beyond: the death of war? 86 Nuremberg: the nadir of the jus publicum europaeum 94 The forum 94 Inscription of the individual within international law 95 Legion perspectives of the legality principle 102 Nuanced negotiations 106 War crimes in the old sense: Article 6(b) 106 Crimes against humanity: Article 6(c) 107 Crimes against peace and conspiracy: Article 6(a) 110 A monotheistic worldview: a step too far? 122 Natural law through a Schmittian lens 127 Negation of natural law 134 Permutations of positivism 139 The Hobbesian dimension 139 The demands of decisionism 147 The culmination of concrete-order thinking 157 Concrete order thinking in the international realm: expectations and frustrations 167 EMERGING FROM THE VORTEX CHAPTER 6: CONCLUSION: 176 Conclusion 177 SCHEDULE OF APPENDICES 187 Appendix One 18 8 Appendix Two 197 Appendix Three 204 BIBLIOGRAPHY 214 ACKNOWLEDGMENTS I wish to express my thanks and appreciation for the guidance and enthusiasm of my supervisor Michael Salter throughout the writing of this thesis.