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what we lose with 'the partisan'
Schmitt makes a very interesting point around p. 28 of the English translation of "Theory of the Partisan." First there was the irresistible temptation experienced by established European powers to use 'partisans' for their wars of national salvation. He refers to Bismarck's comments about wanting to use "any weapon" made available by new-found national feeling against France and the Hapsburg monarchy. The Prussian Landsturm edict, signed by the Prussian king in 1813, ordered all Prussian citizens to use every means to oppose the French and demanded that citizens refuse to cooperate with any measures, no matter how banal, of the occupiers (29). But at the same time established armies treated 'irregular' troops with great harshness. When armies fought, everyone wore uniforms, carried weapons openly, and you knew who who was. The beneficial aspect of this, Schmitt points out, was that a sharp limit was established concerning who war was directed at. If a soldier from an invading army came upon a civilian in a town -- someone not dressed as a soldier, not carrying a gun or sword -- the soldier didn't have to worry that the 'citizen' might jump up and stab him. The citizen, likewise, did not have to worry that the soldier would regard her as a menace. The result is a barrier against total war. This distinction held up, with exceptions, through World War I.
But by World War II it was clear this attempt at circumscribing combattants had suffered decay. In this environment 'the policeman' had a near-impossible task. Even an invading power is supposed to guarantee security. This is done by charging the police -- perhaps even the police of the conqeured regime -- to do the job. But then there are partisans running around blowing up the installations and personnel of the occupier. Does the policeman arrest them? collaborate with them (18-19)? An impossible job.
It's fascinating, too, to read about the attempts of world powers to 'regularize' the status of irregular fighters through treaties. But "normative regulation [is] judicially impossible" (25).
On p. 30 Schmitt points to one 'normative' consequence of edicts like the Landsturm. That is that the irregular kind of activity characteristic of the partisan -- who hides guns, wears whatever uniform suits his purpose or none at all, and works in secret -- is put into motion in the service of national defense. There's something about a foreign power invading a country -- in the age of nationalism, anyway -- that legitimates the irregular activity of the partisan. And after World War II, there was a lot of debate whether or not irregular activity of this kind was allowable. After World War II, the larger, more established powers, via the Geneva Conventions of 1949 (18), tried to come up with rules that sharply limited the 'rights' of local populations they might invade to resist. Smaller countries, such as Belgium, who feared being invaded, wanted more rights for partisans and more protections for the civilian populations that enabled them. The result of this kind of thinking was that there was at least some kind of legitimacy for the 'partisan' who fights in defense of a nation against an aggressive power.
But there is another kind of partisan who does not fight in defense of a nation, per se; does not fight to defend his 'land' or his 'home.' These are international terrorists, or international 'partisans' if we want a neutral term. They go anywhere. Italian anarchists committed a series of high-profile assassinations throughout Europe in the early 1900s. These people share a lot of similarities with the partisan. They hide their arms, they don't wear uniforms, they pretend to like you, and then they shoot you six times while you're having breakfast. But this activity is utterly separated off from 'defense of the motherland' and so on. There has never been an attempt (reported by Schmitt, anyway) to legitimize the acts of these 'partisans without a home.' And the thought that occurred to me when I read this was that one harmful effect of President Bush's war on terror is that it has wrongly conflated the two kinds of partisan: fighting against a local population in Iraq that is defending itself against invasion is the same as going after Osama bin Laden; likewise, fighting against American occupation troops is just like flying a plane into the World Trade Center: both acts are just as much 'terrorist.' That is the Bush administration's 'theoretical' contribution to the theory of war as far as it deals with 'irregular' fighters.
By Swifty | June 16, 2006 in Carl Schmitt, Politics, Readings | Permalink
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I just finished the above post and came across this from the Washington Post:
[begin Washington Post excerpt]
The military announced yesterday that the number of U.S. troops killed in Iraq has reached 2,500, another of those awful, round-number milestones. It is widely expected that the new Iraqi government will consider an amnesty for some of the insurgents who killed some of those American servicemen and women -- drawing a distinction between roadside bombs placed by Sunni Muslims in "resistance" to the U.S. occupation and those placed by foreign al-Qaeda jihadists. If this happens, we'll have taught the Iraqis well. They'll be saying "pardon me" just like their American tutors."
Notice that in the Iraqi amnesty plan, foreign individuals who come to plant bombs against American troops would not be offered amnesty, but Iraqis who did so would be. This is an attempt to maintain the distinction between those who fight in defense of home are different in kind from those who fight with no particular home to defend, even if they use the exact same means.
Posted by: John S. Ransom | Jun 16, 2006 9:12:45 AM
So what 'we lose with the partisan' is the legitimation that would conflate 'we' with nation?
Posted by: s0metim3s | Jun 16, 2006 10:04:37 AM
John,
Maybe it says that...
The more obvious answer is that it is tied to notions of transitional justice that states previously (or even currently) in states of violence look to in order to move themselves (presumably) towards a stable democracy. On the juridical level, foreign insurgents have neither a right nor a pragmatic claim to protective measures for their actions. Since they are in clear violation of international law to the extent to where transnational/universal jurisdiction could be enacted over them, an Iraqi pardon/amnesty would be illegitimate and ineffectual. There is more leeway given with one's own citizenry.
Posted by: Gabriel Sanchez | Jun 16, 2006 10:05:33 AM
Gabriel, I really appreciate your insight on this topic. But your last response struck me for personal reasons - I would like your opinion on a particular family situation.
My father was a "partisan" of sorts as a child during WWII. As a Jew, he hid in a Hugenot town in southern France and helped the resistance move supplies (including arms, some of which were certainly used to kill "collaborators"). I do not believe that the Vichy government ever revoked his citizenship (he was native born but his father and mother were from Poland); but if they had, would my Father not be entitled to a "pardon" by a post-war French government? Many in France considered Jews foreigners, not of the community, with no roots to the land. As a result of his actions some innocent people were probably killed.
I raise this personal story because invariably war distorts the distinctions that Schmitt is trying to analyze. Insurgencies and Guerilla wars always confound easy recognition.
Posted by: Alain | Jun 16, 2006 10:57:28 AM
Alain,
Alain,
My area is international and comparative law, but sadly, it is not historical international and comparative law (at least, not to the extent I would need to answer your question). My remarks above were purely "positivist" in the sense that it was an explanation of international law
as I understand it to be today. You have to keep in mind that the model of int'l law (especially when it concerns human rights and matters of peace & security) is a post-WWII phenomena (with some obvious carry-over from the previous models).
The question of who is/is not "entitled" to an amnesty or a pardon is a fairly contentious issue in int'l law. I believe all of the major int'l human rights courts (Inter-American, European, African) have ruled that amnesties and pardons are illegal for those who exercise state terror or state violence. How far up and down the ladder of command that goes is uncertain. To the best of my knowledge, there is still leeway for states to grant amnesties to its citizens who were not acting on behalf of the state during such times. (That's a matter of sovereignty.)
What I am positive about is that foreign non-state actors, insofar as they can be legally designated as terrorists or unlawful combatants (I believe they can be designated as both) are subject to extraterritorial and/or universal jurisdiction. No state may grant them an amnesty in a legally valid sense. After the anti-terrorism resolutions passed by the U.N. Security Council, I suspect that no state who is a party to the U.N. can legitimately bypass their duty to apprehend and prosecute such individuals. It really comes down to a matter of designation, however.
I apologize. That's a really long way to (probably) *not* answer your question. But at the time of your father, there would have been no internationally recognized mechanisms to hold that France would have had to do anything with your father. It would have been an internal matter. On a personal level, I would say that your father would have been entitled to a pardon, but if he were operating today, I am not so sure he could *legally* expect one. International humanitarian, human rights, and criminal law have expanded and (in my view) overgrown in so many areas that--God forbid--if we were to have another global situation like WWII, I doubt we'd ever "get over" it.
Posted by: Gabriel Sanchez | Jun 16, 2006 11:40:18 AM
Thanks Gabriel. I understand what your saying. I was indirectly thinking of the fact that Germany in the 1930's passed laws that stripped Jews of their German citizenship - setting the legal ground for what was to come. And clearly there is a distinction between personal choices made during War (resistance vs. Collaboration) and legal ajudication afterwards. But I think it difficult for the distinctions of regular/irregular (or friend/enemy for that matter) to hold during a time of violent domestic conflict.
Posted by: Alain | Jun 16, 2006 12:19:44 PM
I'm not convinced of the charge of wrongful conflation, in part because I'm not sure there's any politically neutral position from which to assess and make these calls. From the perspective of the Bush administration, what is the difference? I can't think of anything, other than issues to do with the successful carrying out of military operations, knowing how the enemy will operate. In that sense, then, I can't see how Bush and co are making a mistake in the conflation. The conflation's only wrongful if one agrees with Schmitt about the telluric partisan being the better/more real one.
Alain, your father's story is powerful stuff. His experience and related ones would make for an interesting comparison with the Schmitt. I don't know enough of the history, but groups like the Edelweiss Pirates and the White Rose - I'm not sure I'd say partisans, but resistance of a sort and criminalized ones - and the nazi Werewolf guerillas would make interesting points of comparison too, to press on Schmitt's distinctions. Another would be US counter-insurgency forces, which operate as a sort of partisan but which would be difficult to consider as resistance fighters since they're also foreign insurgents, despite perhaps (thinking they're) fighting for the US homeland on foreign soil.
Posted by: Nate | Jun 16, 2006 12:28:35 PM
Nate writes:
"I'm not convinced of the charge of wrongful conflation, in part because I'm not sure there's any politically neutral position from which to assess and make these calls. From the perspective of the Bush administration, what is the difference?"
Yes, from the perspective of the Bush administration, but that's because they've done the conflation. Let's take an example. I watched "The Pianist" a few weeks ago in prepration for a student trip to Warsaw. During the Warsaw uprising in the film, a number of partisans engage in a surprise attack on a German army hospital. They kill the guards, throw hand grenades into the hospital, and as soldiers and wounded people come out, they open up with small arms fire. Now, I think there are good reasons to make a sharp distinction between this kind of resistance, which certainly violates rules of war, carried out by native Poles against German occupation, on the one hand, and terrorists flying planes into the World Trade Center. Bush and co. have made that distinction more difficult to make -- and that's unfortunate.
Posted by: John S. Ransom | Jun 16, 2006 1:04:36 PM
s0metim3s asks:
So what 'we lose with the partisan' is the legitimation that would conflate 'we' with nation?
I kind of did the title before I wrote the post and I think it's inadequate. What I'm really after here is "what we lose with the partisan as it is handled by the Bush administration's expansive treatment of the term 'terrorist.'" I apologize for insufficient care on the title, which does indeed color the rest of what is written. I hope I've made what I'm really after a little clearer.
Posted by: John S. Ransom | Jun 16, 2006 2:09:09 PM
Gabriel Sanchez writes:
What I am positive about is that foreign non-state actors, insofar as they can be legally designated as terrorists or unlawful combatants (I believe they can be designated as both) are subject to extraterritorial and/or universal jurisdiction. [end Sanchez]
And so let's say -- and I'm not trying to be provocative here; my question is not intended to be rhetorical or polemical; indeed, my question might just be plain old naive -- a state declares a certain ethnicity (Jews, gypsies) or category (homosexuals, mentally retarded) to be 'no longer citizens.' And those 'no longer citizens' engage in violent resistance against their treatment. Under international law, would they be excluded from a possible amnesty because they were no longer citizens and so were 'foreign fighters'? No, that can't be right.
Posted by: John S. Ransom | Jun 16, 2006 2:17:30 PM
John,
It would be, presumably, illegal under international law for a State to "de-citizenize" such individuals (though to the best of my knowledge it has never come up). It would be comparable to a state systematically denying social and political rights to a particular group.
Also, keep in mind that such individuals would not, under international law, be designated terrorists (or, it seems unlikely that they would be...though anything is possible). The fact that they would be in their position due to a state action distinguishes them from those who willingly enter another state territory with the intent to engage in international criminal activity.
Posted by: Gabriel Sanchez | Jun 16, 2006 2:24:47 PM
Maybe a little clearer ... but the categories that you started with - native and occupier - end up folding back on themselves (eg, those revoked of their citizenship and so become-foreign), which calls into question the distinction itself.
Legitimations of violence on the grounds that it's against occupation are slippery, at best. How does one define and claim indigeneity? How does one distinguish nativist legitimation from that which legitimates the violence of, say, pogroms?
Posted by: s0metim3s | Jun 16, 2006 2:32:31 PM
hi John,
I'm opposed to the plane flyers in a way that I'm not to the Warsaw partisans (or to the Italian anarchists).
On the other hand, what if the partisans then go carry out an act similar to flying planes into a building? Which category do they get sorted into? And for whom? And what about cases of international irregulars making attacks on military targets that don't involve civilian casualties but are not in defense of a homeland that's being invaded? (That is, not planes flown into a skyscrapes but say individuals sneaking into an army base or other governmental facility that would get bombed in conventional war.) How they get sorted?
And from the point of view of the German gov't or the US gov't, what should the difference be? I don't mean to be difficult here but I just don't see it, beyond "terrorist" and "partisan" indicating only whether or not the speaker supports or agrees with the people in question. At that level: the Poles you describe were partisans, the guys on the planes were terrorists. Given that the US gov't disagrees with (politically opposes) the equivalent of both, I don't see why the distinction should be made for them. Which is to say, I don't think the conflation is wrongful or a mistake, rather it's just how the enemy sorts the world. One could say that we don't need to/we shouldn't sort the world that way, but that doesn't mean they're making a mistake in doing so relative to their aims.
Your sorting criterion seems to be "defense of one's country while its being invaded" = partisan and the same activities carried out otherwise = terrorist. I don't think I see why that should be so, nor do I see why an invading power - particularly one that's not concerned about international law - would make that distinction or would be mistaken not to.
cheers,
Nate
Posted by: Nate | Jun 16, 2006 2:33:53 PM
s0metim3s,
I'm not sure if you are respond to me or not, but...
All I am laying out are points of international law as they currently stand. I would be the first person to stand up and decry how nebulous it all is. Like I said, I know of no instance under modern int'l law where a state which recognizes it has "de-citizened" any group or class of individuals. There is certainly quite a thick jurisprudence concerning the systemic deprivation of individuals and groups of social and political rights. Also--and this is more contentious--there are principles that have been set out by the Inter American Court of Human Rights in San Jose, Costa Rica and, if I recall correctly, the European Court of Human Rights, which denies the legitimacy of legal systems in times of state terror or gross human rights violations. Presumably, if a group were denied rights (or citizenship) and took up arms to defend themselves, they couldn't later be prosecuted under laws which existed at that time.
We have a few models of transitional justice in the Americas where the restortation of peace and rights was accompanied by amnesties. These have been deemed (so far) legitimate when they are pursuant to peace accords. (Peru and Guatemala are two examples that come to mind.) However, as has been played out in the Pinochet case and Chile as a whole, amnesties that states have handed out after relative stability has returned are not legitimate.
As for your other questions, I'm not sure what they really matter to international law. There are definitions of terrorism in place in international law and principles of extraterritorial and universal jurisdiction in relation to it in place. The sorts of distinctions you are pondering in the abstract have been made in the concrete whether one likes it or not. It isn't an "issue" as one might say.
Posted by: Gabriel Sanchez | Jun 16, 2006 3:01:22 PM
Carlos, the order of comments can get confusing (confuses me), but no - it was a response to John. Should have been clearer, perhaps ...
But, a question, aren't naturalised migrants who are convicted of crimes liable to have their naturalisation revoked in the US, even if and when they've served out their sentences, and that this can be applied retrospectively?
And I'll just add this from a quick ggle of Patriot Act + citizenship revoked:
Americans could have their citizenship revoked, if found to have contributed "material support" to organizations deemed by the government, even retroactively, to be "terrorist." As Hentoff wrote in the Feb. 28 Village Voice: "Until now, in our law, an American could only lose his or her citizenship by declaring a clear intent to abandon it. But -- and read this carefully from the new bill -- 'the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct.'"
Posted by: s0metim3s | Jun 16, 2006 3:48:26 PM
Carlos, eh?
Anyhow...
Citizenship and naturalization are--legally speaking--two different categories that denote different sets of rights and obligations. The quick n' dirty way to put it is that citizenship is the most concrete status one can have in relation to a state.
There is a difference between having one's citizenship revoked and revoking it onself. The PATRIOT Act deals with the latter. Keep in mind that there are many legally valid acts inferred from not just express words, but content. That is not a new concept deployed by the Bush Administration to further affirm their wickedness. I'll admit, however, that it's still murky water from a legal perspective. When one begins to get into issues over enemy combatants, it gets even murkier. The release agreement the U.S. worked out with Yaser Hamdi conditioned that he formally renounce his citizenship. As it stands, the law will not just allow the government to take it away.
Posted by: Gabriel Sanchez | Jun 16, 2006 4:24:19 PM
Oh, and just for the record...
Afroyim v. Rusk, 387 U.S. 253 (1967), is a Supreme Court case which sets forth quite clearly that "the Government cannot sever its relationship to the people by taking away their citizenship." It holds to the principle that the very nature of the U.S. government "makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another of their citizenship."
A quick Google search should allow you to find the case online. It is still good law.
Posted by: Gabriel Sanchez | Jun 16, 2006 4:30:09 PM
Angela,
You presumably mean Gabriel, not me?
I have, though, been following this with some interest, and would not that these questions relate to an issue I brought up in my earlier post--namely, that of the Uygurs in Guantanamo Bay whom the US is holding as terrorists (though uncharged), and is simultaneously refusing to return them to China ostensibly out of fear that they would be persecuted as partisans.
The question that has been raised of the potential revocation of citizenship is interesting, but perhaps an equally interesting case would be that of a people (like the Uygurs) who are fighting for a putative homeland that straddles several existing national borders. In this case, they could be viewed simultaneously as partisans by one country, and as international terrorists by the neighboring country (in practice, now that the USSR has dissolved, I don't know how much there is much trans-border activities there are between Chinese and former Soviet Uygurs, but the theoretical point remains interesting).
carlos
Posted by: crojas | Jun 16, 2006 4:38:16 PM
Yes, Gabriel - I got distracted. Sorry, sorry and apologies to all. I should sleep more, obviously...
Posted by: s0metim3s | Jun 16, 2006 5:06:31 PM
Oh, boy!
The sound of deconstruction is so loud in this forum that i can barely understand my own word!
it seems that you guys are so far removed from what "i love my family and my heimat" once meant (admittedly in the same way as any high-octane webblogging intellectual roaming cyber universe, from anywhere in the developed world) that you miss the obvious answer:
a citizen is a person who not only fights during times of conflict but stays on afterward, prepared to face what ever may arise from his actions, volunteering to rebuild the community, prepared to be held accountable and to hold accountable (which may be even the more horrifc task, think Nuremberg, think Arusha, think The Haag)
by facing the consequences the fighter turns into the citizen, and of course this is the hardest transition in any conflict.
you may want to consult Hannah Arendt's "human condition" or "Macht und Gewalt" as an alternative contemporary perspective on Schmitt. Enjoy!
Posted by: deconrockz | Jun 16, 2006 7:08:25 PM
deconrocks, There are few things less obvious than the sense and experience of being 'at home' beyond one's abode (or even in one's home), the perimeter of 'land', and the confluences these sentiments in wars.
If you don't want 'noise' to trouble your belief that they are obvious, fine. But if they were indeed so obvious, then Arendt would not have fled, and you would not weave a particular sense of 'family' into the determination of citizenship by specifying the citizen (soldier) with the masculine pronoun.
Posted by: s0metim3s | Jun 17, 2006 1:14:29 AM
@s0metim3s
thanx for making clear that you do not welcome outsiders to speak here to your clique.
sleep well!
Posted by: | Jun 17, 2006 4:31:52 AM
the reintegration of "irregular" fighters as citizens was a critical factor twice in US history and at least once in UK history.
if you dig deep enough you will probably find female fighters (pretending to be men) in any "irregular" context, be it eastern europe during ww II or the american war of independence.
Posted by: | Jun 17, 2006 5:25:18 AM
deconrockz, Arendt also wrote the Origins of Totalitarianism, a book in which citizenship and the rights of man play a prominent role. The fact that large numbers of people became displaced refugees after WWI, with no country willing to claim them as their own, was essential in establishing the "legality" of the horrors of WWII. And the fact also remains, that many citizens (many of them Jews) were stripped of their German citizenship (many of whom had fought for Germany in WWI) in order to qualify them for "relocation" later on.
You do not have to be deconstructionist to point out the fact that there is often disagreement over who is a citizen and who is not. Personally, your definition sounds OK to me, but the reality is that it is often not followed in practice.
And for the record, as far as I am concerned you can come play in our sandbox anytime you like. Thanks.
Posted by: alain | Jun 17, 2006 10:26:43 AM
I'm not the swiftest runner in the race, but I'm sorely confused about this whole back n' forth. It seems like the argument over "citizenship" is spinning wildly out of reality. It's a legal category which, in the post-WWII era, carries with it certain legal rights and obligations. It is not a natural category, nor is it a philosophical one. (At least, not anymore.) Of course, if we're sitting in the realm of wild hypotheticals and ad hoc determinations, then "citizenship" can mean whatever you want it to I suppose. That doesn't conform with how its actually understood in the realm where the category carries actual weight.
Posted by: Gabriel Sanchez | Jun 17, 2006 11:31:53 AM
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