The Force of Forgetting or Forced Forgetting? Schmittian Amnesties and Transitional Justice

Chapter 3
The Force of Forgetting or Forced Forgetting? Schmittian Amnesties and Transitional Justice1

Juan Espindola

In the aftermath of the Second World War, Carl Schmitt wrote an extremely short albeit provocative piece advocating the use of amnesties in the context of Germany’s post-war criminal prosecutions: “Amnesty or the Power of Forgetting” (Schmitt 1995). This apology for amnesties should come as no surprise given his early sympathies with the Nazi regime. The main goal of this chapter is to argue that Schmitt’s defense of amnesties is objectionable and even inconsistent with some strands of his political theory. The chapter moves on two methodological levels. The central one articulates a criticism of Schmittian amnesties, based among other things on what recent literature on transitional justice has to say about coming to terms with the past in post-conflict scenarios. Admittedly, it is an exercise in Schmitt bashing, a quite common and well-established practice in contemporary scholarship (Holmes 1993; Lilla 2001; Manin 2003, among many others), but one that nevertheless has a very strong counterpart in a large number of Anglo-American scholars whose goal is to “recover” and revitalize Schmitt’s political theory (for instance Mouffe 1999). The second level presents a critique, rather than a criticism, of Schmitt’s defense of amnesties. This means that instead of trying to challenge Schmitt based on a set of previously and independently defined values and categories, one is to proceed immanently to Schmitt’s theory, from within his own terms and categories in order to show how they relate to one another, and whether they are mutually consistent (McCormick 1997: 6–7).

Engaging with Schmitt’s advocacy of amnesties is important not only for the sake of coming to grips with his political thought. More importantly, he should be taken as an author who challenges the paradigm of individual accountability for serious crimes, and with it the consolidation of an anti-amnesty that has been crystallizing in the last decades (Sikkink 2012). There is a growing, although by no means absolute, consensus on the part of international bodies like the United Nations, as well as international non-governmental organizations and academics, that amnesties for international crimes, such as genocide, torture, war crimes, and crimes against humanity, should be removed from the transitional justice toolkit. Despite its appeal, the anti-amnesty position is yet to develop more solid foundations, both legal (Freeman 2009; Freeman and Pensky 2012; Trumbull 2007), and moral (Pensky 2008; Ryberg 2010). Some of Schmitt’s arguments were quite successful in his time and country (Frei 2002), and even hold currency today. Addressing these arguments, then, can contribute in the task of constructing a compelling position with regards to the use of amnesties. I do not believe that an absolute ban on amnesties is a defensible position. It is also not a popular one, based on the increment in the use of amnesties worldwide (Mallinder 2012). The challenge is to develop principled criteria on the use of amnesty. This chapter does not undertake the work of laying out these criteria, but it shows why Schmitt’s defense of the use of amnesties is not a good referent, and even, to put it bluntly, why it is not even Schmittian in spirit.

The chapter discusses a rather unconventional case in the growing amnesty scholarship: Athena’s “amnesty” in the epic The Odyssey. In “Amnestie oder die Kraft des Vergessens” (AKV), Schmitt references this literary example in extolling the benefits of amnesties. The reason to focus on this example is that it allows one to peel away the added layers of complexity that usually come along with real life scenarios such as civil wars or interstate conflict. These layers of complexity oftentimes complicate normative evaluation. By contrast, “Odysseus war” is relatively transparent, thus leaving exposed the core normative principles behind pro-amnesty positions such as Schmitt’s.

The chapter is divided into three sections. Section one presents Schmitt’s views on amnesties in AKV, as well as in other parts of his corpus. The next two sections criticize these views. The second section argues that Schmitt’s understanding of reconciliation, as well as his prescription that reactive emotions in post-conflict scenarios should be suppressed, is highly unconvincing. The third section criticizes Schmitt’s lack of a standard to evaluate the causes of conflict, and the manner in which conflict is carried out. Schmitt defends an unrestricted right of political communities to go to war. But his position is not defensible, neither from the perspective of just war theory nor from his own perspective in other writings, and this undermines his case for amnesties. The fourth section concludes.

The Force of Forgetting

The first version of AKV appeared in 1949. The text was published several times with minor revisions, in different places, and with different titles (“Amnestie—Urform des Rechts,” “Amnestie ist die Kraft des Vergessens,” “Das Ende des kalten Bürgerkrieges—Im Zirkel der tödlichen Rechthaberei”). It was even plagiarized once in the German weekly Die Zeit. AKV is only six paragraphs long. Despite its brevity and its abundant rhetorical flurries, it is premised on deeper Schmittian themes. The crux of its argument is as follows. Amnesties are the only mechanisms available to societies for stopping potentially endless cycles of violence resulting from post-war revenge. Punishing the losing side in a war is always an instance of victor’s justice—the expression of petty vindictiveness, or even of imperialistic hubris. The reluctance to offer amnesties signals the ushering of a new era in which war is considered to be a crime, not legitimate combat; and belligerent parties are regarded as “criminals or gangsters,” not as legitimate opponents. But let me develop the argument at greater length.

Schmitt sets the stage for AKV by noting a transformation in the character of war, and lamenting this change. War, he claims, is no longer a clash between two disciplined armies, but a struggle where opponents fight each other with all the means at their disposal. Furthermore, the cessation of war does not give way to peace, but to “civil war,” by which he means that even after one of the combatants has won the war, violence is perpetuated through petty desire for revenge and its conclusion is the complete annihilation of the enemy. The distinguishing feature of civil wars, Schmitt says, is that they treat individuals in the losing side as “criminals, murderers, saboteurs, and gangsters,” not as worthy opponents or legitimate belligerents. Civil war is, in other words, a form of victor’s justice and a just war, a term that in Schmitt’s conceptual map has a negative connotation, not a positive one as is usually the case in the tradition of Saint Augustine and in contemporary philosophy. Thus Schmitt writes: “In an eerie sense, the civil war is a just war, because each of the parties sits on his right as on spoil [of war]. Each takes revenge in the name of law. How is it possible to get out of this state of cold war to one of peace? How can this circle of dogmatism/self-righteousness be broken? How can the cold war come to an end?” (2005: 218). Schmitt continues his line of reasoning by posing a (false) dichotomy—he contends that there are only two strategies for bringing a civil war to an end. One is the “communist way,” the complete annihilation of “the other.” The alternative is to implement an amnesty, and he goes on to define it in the following way: “The word amnesty means forgetting. and not only forgetting, but also the strict prohibition to rummage in the past, and finding occasion there to further acts of revenge and further compensation” (2005: 218).

Schmitt’s defense of amnesties in AKV is consistent with two major dimensions of his political theory—his understanding of sovereignty as the prerogative to declare the state of exception (what I call internal sovereignty), and more interestingly, his anti-cosmopolitan criticism of post-Westphalian political and legal order, a criticism that comes along with an affirmation of the value of a political community’s sovereignty vis-à-vis other political communities (external sovereignty). The remainder of the section connects the justifications for amnesties in AKV to Schmitt’s conceptions of internal and external sovereignty.

Internal Sovereignty

In Political Theology, Schmitt summarizes his understanding of sovereignty in a lapidary fashion: the sovereign is he who decides the state of exception. Even this succinct formulation has given rise to multiple interpretations, and it is the most radical expression of Schmittian sovereignty. The standard interpretation should suffice for the moment—exceptional situations call for the emergence of a potentially all-powerful agent who must not only rescue constitutional order from any given crisis, but also charismatically deliver it from its own constitutional procedure, which Schmitt pejoratively describes as mechanical. This agent is the sovereign. Given this standard interpretation of Schmitt’s conception of sovereignty, his plea for post-Nazi amnesties would seem to be no surprise. Amnesties suspend ordinary course of criminal law. They could be seen as an expression of the state’s sovereign power to declare an exception to the normal parameters of the rule of law as a way of furthering some other political end. Thus, in Political Theology, Schmitt (2005: 38) refers to amnesties as examples of the “omnipotence of the modern law giver.”

External Sovereignty

The Nomos of the Earth (2006), arguably Schmitt’s most ambitious work, stands in the background of AKV; in fact, it was published in 1950, just about a year after AKV. This work presents Schmitt’s broader criticism of some of the transformations of international law. Nomos is a paean to the Jus Publicum Europaeum (JPE), the framework of international law prevailing between the birth of sovereign states to the beginning of the First World War. What Schmitt has to say in this work about international law follows from his conception of politics.

I start by unpacking what Schmitt takes to be the basis of politics, or as he called it somewhat idiosyncratically, “the political.” Schmitt seeks to find an independent criterion appropriate to politics for justifying political actions and motives. Just like morality has a criterion based on the distinction between good and bad, and aesthetics has a criterion based on the distinction between beauty and ugliness, so politics has a criterion: the distinction between friend and enemy. Enmity, in particular, is a relation that arises when I recognize that a group of persons are “existentially something different and alien” to me and represent “the other.” Enmity is for Schmitt a public enemy (hostis), not a private one (inimicus). A collectivity is a political body only to the extent that it has enemies. Defining one’s public enemy means also defining one’s collective self. In a phrase, distinguishing one’s enemies from oneself is the essence of politics.

This conception of politics, grounded on the friend-enemy distinction, implies that every true political community must claim an unrestricted right to go to war (jus ad bellum) based on what it judges to be just and necessary. Were the decision whether to declare war in a concrete situation no longer up to the political community but to some third party—say, an international organization like the United Nations—the group would lose its existence as an independent political community (1996: 45–53). This implies a condition of the legitimacy of international order—a legitimate international order must recognize that all political communities have a legitimate claim to jus ad bellum.

According to Schmitt in Nomos, JPE lived up to his criteria of legitimacy. All independent states were recognized to possess the right to go to war on the basis of their own judgment of justice and necessity. The legal order of JPE, indeed one of its highest achievements, was to move away from the medieval notion of “just war” (gerechter Krieg), which as we saw Schmitt alludes to in AKV. JPE did not distinguish between just and unjust war. Under JPE, the just cause for a war was not to be determined by moral arguments and natural law (the “just cause” of medieval times), as was the case in the Middle Ages, but the equal sovereignty of states. All sovereign states in a given conflict were by default recognized as legitimate belligerents (2006: 140–71). JPE drove a wedge between the inimicus and the justus hostis, the private from the just public enemy. The justus hostis is not one with whom one has an existential conflict, but simply a conflict of interests. This was Schmitt’s idea of a non-punitive war among states, in his terms, a “non-discriminatory concept of war.” War is not waged by criminals, but by worthy opponents with conflicting interests.

Schmitt believes that international law between 1919 and 1939 undermined JPE, and laments this historical development. Under the new paradigm, any war opposed to the new international legal order, which outlawed wars of aggression and expanded international law to include crimes against humanity, became unjust wars, and the enemy became a criminal. Schmitt thinks that one of the consequences of the criminalization of war is the transformation of the institution of amnesties. Before interstate war was a crime, peace treaties implied amnesties. Belligerent parties would not be treated as criminals; amnestying those who had fought a war was understood to be a “practice of peace between two mutually recognized partners.” This was the appropriate method, according to Schmitt, who on this point (but not in others) quotes Kant approvingly: “The concept of a peace treaty already contains the provision that an amnesty goes along with it” (2006: 171). This understanding changes with the demise of JPE. In his typically apocalyptic tone, Schmitt writes: “amnesty was destroyed by a discrimination against the vanquished” (2006: 262); “a vanquished state was obligated to turn over to the enemy state its own citizens who committed war crimes” (2006: 261).

With this background in mind, let us turn back to AKV. In that piece, Schmitt mentions several historical instances in which some form of amnesty was used to put an end to civil conflict. He includes the paradigmatic amnesty of 403 B.C. in Athens after the Peloponnesian War, which he describes as a “fraternal war.” He also mentions the Indemnity and Oblivion Act (“Act of free and general pardon, indemnity, and oblivion”) that ended Cromwell’s English Revolution in 1660. Schmitt’s use of these examples is extremely problematic on many levels. Against what he believes, in both cases war was criminalized and the belligerent parties on the losing side were treated like “gangsters and criminals”; in Athens, the Thirty Tyrants were executed; in England, those who ordered the execution of Charles I were sentenced to death (even Cromwell was posthumously executed: his body was exhumed and then hanged). But in this chapter I will focus on a different example of AKV. In some of its versions, Schmitt refers to Odysseus’ return to Ithaca, where he and his son Telemachus initiate a battle that, so Schmitt argues, would have degenerated into an endless spiral of violence but for the timely intervention of the goddess Athena. Schmitt tells the conclusion of the epic in a way that is partial to the lesson he wants to draw. However, far from supporting his views, a richer account of the Odyssey actually undercuts the very point that Schmitt is trying to make.

The story of Odysseus’ homecoming is well known. After 20 years of expatriation, he makes his way back to Ithaca, where all but his wife and son had lost faith that he would return. Upon arriving Odysseus finds out that the suitors of his wife Penelope have wreaked havoc on his estate. The suitors have abused Penelope’s hospitality and broken guest rules. At the same time, however, it should be noted that they linger in Odysseus’ home because Penelope, who has pledged to marry one of them after she finishes weaving a shroud for Odysseus’ father, cunningly postpones her decision by unweaving at night what she weaves during the day. Odysseus is enraged at the behavior of the suitors, and in retaliation starts a blood bath. Violence spirals, until Athena, who instigated Odysseus’ wrath in the first place, now wonders how to proceed to curb violence and asks Zeus for guidance. Schmitt quotes Zeus’ reply:

“My child,” Zeus who marshals the thunderheads replied,

“why do you pry and probe me so intently? Come now,

wasn’t the plan your own? You conceived it yourself.

Odysseus should return and pay the traitors back.

Do as your heart desires—

but let me tell you how it should be done.

Now that royal Odysseus has taken his revenge,

let both sides seal their pacts that he shall reign for life,

and let us purge their memories of the bloody slaughter

of their brothers and sons. Let them be friends,

devoted as in the old days. Let peace and wealth

come cresting through the land.

This is the only direct reference that AKV makes to the Odyssey. Sympathetic to Zeus’ diagnosis of the situation, Schmitt says about cycles of vengeance such as this one: “this kind of political cleansing could ruin the whole nation” (AKV, 220).

The literary reference seems to be in line with Schmitt’s decisionism. Zeus, the almighty god, dictates what is to be done, and Athena follows his commands. She addresses all the parties and imposes a form of amnesty: “Hold back, you men of Ithaca, back from brutal war!/Break off—shed no more blood—make peace at once” (584–5). And as Homer puts it, she “hands down” her “pacts of peace between both sides for all the years to come” (599/600).