LEGAL THEORY WORKSHOP
presents
Scott Shapiro
Yale Law School
Schmitt at Nuremberg
Friday, October 17, 2014
12:30 - 2:00
VC 101 - Victoria College
Standing for the first time before the International Military Tribunal in Nuremberg, Germany, Supreme Court Justice Robert Jackson, Chief Prosecutor for the United States, described the Allies’ two-fold plan for keeping the peace. First, they would adopt the new United Nations Charter. Second, they would punish the Nazi leadership—Hermann Goering, Joachim von Ribbentrop, Rudolf Hess, among others—for having started World War Two: “This Charter and this trial, implementing the Kellogg-Briand Pact, constitute another step in the same direction.” As Jackson’s opening statement makes clear, the famous Nuremberg trial was not solely about the Holocaust. Rather, its primary goal was to make good on the promise of the Kellogg-Briand Pact, the 1928 treaty ratified by virtually every nation of the world that renounced war as an instrument for national policy.
Nuremberg was the watershed moment, the point at which war went from being merely illegal to criminal. The account of this transformation is rooted in the figure of Carl Schmitt, the so-called “Crown Jurist of the Third Reich,” and his twenty year effort to discredit the Kellogg-Briand Pact. In 1927, Schmitt had been in the audience at a lecture by James Shotwell who introduced the renunciation of war idea to his German audience. An alarmed Schmitt responded a few weeks later when he gave one of the most famous lectures of the 20th Century—“The Concept of the Political”—in the very same hall. Schmitt warned his audience that outlawry was a trap and that Germany would sorely regret its decision to join the Kellogg-Briand Pact. He went on to predict that the Pact would change the basic rules that states took for granted—the right of conquest, the duty of neutrality—and that the criminalization of war would follow shortly thereafter.
As this chapter will show, Schmitt was right: the Pact led directly to Nuremberg. Indeed, it will argue that Schmitt himself secretly authored the celebrated German defense at the International Military Tribunal: namely, that the Kellogg-Briand Pact was merely aspirational, but not legally binding, let alone criminally prosecutable. Schmitt had a very personal stake in the argument: he would himself be interrogated at Nuremberg, accused of violating the very Pact about which he had issued so many warnings.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca
