Writings on War by Carl Schmitt

Author:Carl Schmitt
Language: eng
Format: epub, pdf
Publisher: Wiley
Published: 2014-10-14T04:00:00+00:00

The International Crime of the War of Aggression and the Principle “Nullum crimen, nulla poena sine lege” (1945)

Notes on the Text

The following text was originally dictated by Schmitt to his secretary Anni Stand at Schmitt’s residence in the Schlachtensee neighborhood of Berlin in the summer of 1945. The text was intended as a legal memorandum for Friedrich Flick (1883–1972), a leading German industrialist. As far as can be established, Flick, who was arrested in the south of Germany by American officers on June 13, 1945, had read while in American custody an article in the July 15, 1945 issue of The Stars and Stripes Magazine to the effect that Justice Robert Jackson intended to try “leaders of industry and finance” at the upcoming war crimes trials to take place that fall. At the same time, the June 6, 1945 Jackson Report, which included plans to try “persons from financial, economics, and industrial circles” as well as “industrialists” was widely reported in the German press. Konrad Kaletsch (1898–1978), a colleague and representative of Flick, accompanied by the jurist Karl Tillman, contacted Schmitt at some time in late June to prepare a legal memorandum for Flick’s defense against the charge of “conspiracy to commit aggressive war” before the International Military Tribunal. Schmitt did so and attached to his memorandum an English-language “note,” presumably directed at the American judges; I have made minor corrections of punctuation and orthography to this note. Kaletsch paid Schmitt approximately 10,000 Reichmarks in the summer of 1945 for his services and later reimbursed Schmitt for an additional 1,000 Deutschmarks in 1951. However, Schmitt’s memorandum was never used in the trial: Flick was ultimately tried not before the IMT for conspiracy to commit aggressive war but rather in the so-called “Flick Trial” for war crimes and crimes against humanity and sentenced to seven years in prison before being released in 1950.

The basis for this translation is the 1994 edition of Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege,” published in Berlin by Duncker and Humblot and edited by Helmut Quaritsch. That text is based on Schmitt’s final draft of the memorandum, located in the Nordrhein-Westphalian State Archive in File 265–124, Number 18. Quaritsch provides an extensively researched and exhaustive back history to the memorandum in his edition of The International Crime of the War of Aggression on pages 125–47.

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