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Carl Schmitt, 'Ordinary Businessmen' and Crimes of Aggression

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Carl Schmitt, 'Ordinary Businessmen' and Crimes of Aggression NORDIC JOURNAL nordic journal of international law OF INTERNATIONAL 88 (2019) 459-487 LAW brill.com/nord Pirates in Suits: Carl Schmitt, ‘Ordinary Businessmen’ and Crimes of Aggression Valentin Jeutner Faculty of Law, Lund University, Lund, Sweden [email protected] Abstract The article critically appraises Carl Schmitt’s 1945 expert opinion on The International Crime of the War of Aggression and the Principle ‘nullum crimen, nulla poena sine lege’. Each element of Carl Schmitt’s expert opinion is subjected to close scrutiny and con- textualised with references, where appropriate, to the icc’s recently acquired jurisdic- tion to try crimes of aggression. It is shown that Schmitt’s legal arguments are on the whole tenable but that the expert opinion’s assumptions about the position of the abil- ity of ‘ordinary’ citizens to assess their own actions are very problematic. Keywords crimes of aggression – Nuremberg Trials – international criminal law – nullum crimen – corporate liability 1 Introduction On 12 November 2018, the judges of the International Criminal Court (‘icc’) amended the Court’s Regulations1 to implement a final set of provisions concerning the icc’s newly acquired jurisdiction over the crime of aggres- sion.2 These amendments represent the final step of a long quest to create an 1 International Criminal Court, Regulations of the Court (amended 12 November 2018, entry into force 15 November 2018) icc-BD/01-05-16. 2 International Criminal Court, icc Judges Amend the Regulations of the Court in Connection with the Activation of Jurisdiction over the Crime of Aggression (icc-cpi-20181115-PR1417), <https://www.icc-cpi.int>, visited on 22 November 2018. © Valentin Jeutner, 2019 | doi:10.1163/15718107-08803004 This is an open access article distributed under the terms of the CC BY 4.0 licenseDownloaded from Brill.com10/01/2021 04:13:40PM via free access <UN> 460 Jeutner international legal regime of individual responsibility for crimes of aggression. An early, but rarely studied, treatment of the issues concerning an individual’s responsibility for acts of aggression is Carl Schmitt’s 1945 expert opinion on The International Crime of the War of Aggression and the Principle ‘Nullum cri- men, nulla poena sine lege’.3 Schmitt originally prepared the expert opinion for the legal defence team of Friedrich Flick.4 Friedrich Flick (1883–1972), once de- scribed as one of “Hitler’s biggest industrial backers”,5 ‘employed’ up to 100,000 forced labourers in various factories in the course of the Second World War.6 The working and living conditions of these labourers were of such inhumane nature that even inspectors of the German regime found them worthy of cri- tique.7 Following the end of the war, Flick was arrested by the US-American occupying forces in Germany on 13 June 1945. Flick’s legal team tasked Carl Schmitt, one of Germany’s most prominent international lawyers at the time, with preparing an expert opinion on the responsibility of civilians for crimes of aggression. In response, Schmitt pro- duced an expert opinion whose content has, predictably, divided commenta- tors. From an international lawyer’s point of view, the opinion is for the most part “ordinary”,8 “conventional”9 and unremarkable. It is certainly neither “brilliant”10 nor “perfect”.11 However, the opinion’s arguments are a helpful 3 C. Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz ‘Nullum Crimen, Nulla Poena Sine Lege’ (Helmut Quaritsch ed., Duncker & Humblot, Berlin, 1994). Timothy Nunan has prepared an English translation of the expert opinion that, as a result of being very true to the original German text, however, at times imper- fectly accounts for some of the nuances of Schmitt’s arguments. C. Schmitt, ‘The Inter- national Crime of the War of Aggression and the Principle “Nullum Crimen, Nulla Poena Sine Lege”’, in T. Nunan (ed.), Writings on War (T. Nunan (tr.), Polity, Cambridge 2011). 4 H. Quaritsch, ‘Ein Gutachten für die Nachwelt’, in Quaritsch (ed.), ibid., p. 137. 5 ‘Friedrich Flick Is Dead at 89; Industrialist Who Aided Hitler’, The New York Times (22 July 1972), https://www.nytimes.com/1972/07/22/archives/friedrich-flick-is-dead-at-89 -industrialist-who-aided-hitler-served.html, visited on 22 November 2018. 6 A. Drecoll, ‘Zwangsarbeit im Flick-Konzern’, in J. Bähr et al. (eds.), Der Flick-Konzern im Dritten Reich (Oldenbourg Verlag, Munich, 2008) p. 531. 7 Ibid., p. 550. 8 N. Paech, ‘Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum Crimen, Nulla Poena Sine Lege” [Review]’, 29 Kritische Justiz (1996) p. 251. 9 O.A. Hathaway and S. J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon and Schuster, New York, 2017) p. 272. 10 T. Nunan, ‘Translator’s Introduction’, in C. Schmitt, Writings on War (Polity, Cambridge, 2011) p. 21. 11 H. Quaritsch, ‘Über Eigenart und Erkenntniswert des Gutachtens’, in Quaritsch (ed.), su- pra note 3, p. 148. nordic journal of internationalDownloaded law from 88 Brill.com10/01/2021 (2019) 459-487 04:13:40PM via free access <UN> Pirates in Suits 461 point of departure for problematising the liability of ‘ordinary businessmen’, as Schmitt calls them,12 for crimes of aggression in particular and for violations of international law in general. In a nutshell, Schmitt’s 1945 argument in defence of the innocence of ‘ordi- nary businessmen’ for crimes of aggression unfolds in four parts: First, in 1939 the crime of aggression did not exist. Second, to hold ordinary businessmen accountable under such circumstances would violate the principle nullum cri- men sine lege. Third, even if the crime of aggression existed, Schmitt argues that responsibility could be attributed only to a very small circle of politicians and that, fourth, it would be inappropriate to extend responsibility beyond that circle and to ‘ordinary businessmen’. The article subjects these arguments to close scrutiny on their own terms. References are made, at times and where applicable, to contemporary debates concerning the liability of corporate actors for crimes of aggression. The article begins by identifying precisely which question the expert opinion sought to answer (section 2) before tracing and engaging Schmitt’s four arguments (sec- tions 3–6) in favour of the innocence of ‘ordinary businessmen’ for war crimes. In the conclusion, the opinion’s legacy and importance for on-going debates concerning corporate responsibility for violations of international law will be considered. 2 The Opinion Schmitt’s expert opinion consists of five parts13 that are framed by an introduc- tion and by a conclusion. At the end, Schmitt appended a very short English summary.14 12 The term ‘ordinary businessmen’ will be used in quotation marks throughout the text since Schmitt does not explain in which sense businessmen like Friedrich Flick should be considered to be ordinary. 13 The five parts are: 1. The practical meaning of the principle: “nullum crimen, nulla poena sine lege”, 2. War crimes and war guilt in the Treaty of Versailles, 3. Development of the prohibition of aggression from 1919–1939 in international law, 4. Principals and accesso- ries of the international crime of aggression and 5. The position of the individual citizen, especially that of the economically active, ordinary business-man. 14 Quartisch suggests that the English summary might not have been written by Schmitt himself, but possibly by Karl von Lewinski, a German lawyer who advised the Allied Powers with respect to the Nuremberg Trials. See H. Quaritsch, ‘Zur Entstehung des Gutachtens 1945’, in Quaritsch (ed.), supra note 3, p. 129 (fn. 18). nordic journal of international law 88 (2019) 459-487Downloaded from Brill.com10/01/2021 04:13:40PM via free access <UN> 462 Jeutner In the introduction, Schmitt narrows down the subject matter of his opinion by distinguishing three kinds of crimes committed in the context of war: viola- tions of the jus in bello, “actual atrocities” or mala in se and, the crime of ag- gression. Schmitt defines violations of the jus in bello as “violations of the rules and customs of war…committed by the members of a warring State’s armed forces”.15 Provisions concerning violations of this kind can be derived from, for example, the Hague Conventions of 1899 and 1907 and the “laws governing the treatment of prisoners of war”.16 Since Schmitt perceives international law to be settled with respect to violations of the jus in bello, he excludes them from the scope of his expert opinion. Similarly, Schmitt also excludes “actual atrocities” or mala in se which he defines as “premeditated killings and inhumane atrocities [Grausamkeiten] whose victims were defenceless humans”.17 In the short English note at the end of the expert opinion Schmitt further elaborates that these acts, as mala in se “cannot be classified in their real essence by the rules and categories of the usual positive law”.18 With respect to the legal classification of these acts, Schmitt argues that perpetrators must be given a sentence that is “solemn in its form” and “striking in its effect”,19 that perpetrators of such crimes must be “ostracised by being placed outside of law’s purview and become outlaws”.20 He continues that it cannot and must not be debated that acts of this kind con- stitute “abnormal atrocities”21 [abnorme Untaten]. Accordingly, Schmitt also excludes these “actual atrocities” from the scope of his expert opinion. Having briefly dismissed these two kinds of war crimes, Schmitt then pro- ceeds to focus on the crime of aggression. Compared to violations of the jus in bello and “actual atrocities”, the crime of aggression is, according to Schmitt, “not merely something new but something fundamentally novel”22 since it “used to be accepted beyond doubt that every sovereign state possessed a jus ad bellum”23 without reference to a war being aggressive or defensive.
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