War as an Institution of International Hierarchy: Carl Schmitt’s Theory of the Partisan and Contemporary US Practice

Abstract

The purpose of this article is to consider what war might look like as an institution of international hierarchy. This might not seem all that challenging because we have a long history of pre-Westphalian warfare to draw on. The first section of the article examines that history to demonstrate how war was gradually transformed from an institution of hierarchy to an institution of international society. The second and third sections of the article are perhaps more challenging because they unsettle English School perspectives on war. This is not simply a reference to the use in the third section of Carl Schmitt to help us understand the evolution of irregular warfare and what that means for normative relationships between combatants. It is also a reference to the argument of the fourth section, which is that the legal regime advanced by the United States in the war on terror in effect globalises the legal hierarchy of civil war. This argument is made with reference to the Military Commissions Act and the case of Omar Khadr and Mohamed Jawad. The article concludes by noting that it is, under Obama, more likely that al Qaeda operatives will be tried in a civilian court and less likely that the detainee will be subjected to aggressive interrogation techniques. Yet to the extent that the 2009 Military Commissions Act holds open the possibility of prosecuting enemy combatants simply for engaging in hostilities, contemporary US practice continues to challenge our understanding of war as an institution of anarchical society.