HAA 271K: The Enemy: Law and the Human Profs. Joseph Koerner & Noah Feldman

Angie Jo May 1, 2016

!The Two Koreas: Enmity, Friendship, and Reunification !!

On the surface, the story of the two Koreas is one of straightforward enmity. North

Korea and South Korea are two halves of one formerly united peninsula that are technically still

in a state of war. The Korean Armistice Agreement that was signed in 1953 was designed to end

the hostilities of the Korean War “until a final peaceful settlement is achieved” —no such final 1

nor peaceful settlement has yet occurred. Their two territories are separated by a demilitarized

zone through which none may pass—a land-mined death zone that is guarded at all times by

soldiers on both sides. South Korea’s Ministry of Defense continues to designate North Korea

the country’s “primary enemy” in its official documents, and the North Korean regime regularly 2

threatens to “annihilate their enemies” (South Korea and its primary ally, the United States). 3

Both countries are armed to the teeth: North Korea performed its fourth unsanctioned nuclear

test in January of 2016, and two months later, South Korea and the United States executed their

largest annual military drill—what many call “war games”—to date, which simulated storming

North Korea’s shores and “beheading” its leadership, and involved over 17,000 American troops

and 300,000 South Korean troops. In response, North Korea released a propaganda video that 4

appeared to centre the South Korean Blue House and President Park Geun-hye in crosshairs,

before blowing them both up in a CGI explosion. The situation is, in short, one of the most 5

“Korean War Armistice Agreement” (Treaties and Other International Agreements Series #2782, July 1

27, 1953), National Archives, General Records of the United States Government, Record Group 11. http://www.ourdocuments.gov/doc.php?flash=true&doc=85 Ministry of National Defense of the Republic of Korea, "2014 Defense White Paper" (Seoul, 2014)2

Korean Central Television, Propaganda Video, (March 7, 2016, Pyoungyang), Video.3

Anna Fifield, "In drills, U.S., South Korea practice striking North’s nuclear plants, leaders," Washington Post, 4

March 7, 2016, https://www.washingtonpost.com/world/in-drills-us-south-korea-practice-striking-norths-nuclear-plants/2016/03/06/46e6019d-5f04-4277-9b41-e02fc1c2e801_story.html Julian Ryall, "South Korean military told to prepare for North's 'provocations,'" Telegraph, March 24, 2016,  5

http://www.telegraph.co.uk/news/2016/03/24/south-korean-military-told-to-prepare-for-norths-provocations/

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bombastic shows of apparent enmity between two countries that one could find on Earth today.

This relationship between the two Koreas presents an interesting testing ground for Carl

Schmitt’s idea of the “enemy” in his work, The Concept of the Political. According to Schmitt, a

true political enemy is one that is designated as such by the sovereign of a fighting collective of

people. The enemy can only be decided upon by the actual participants of the conflict—those

who personally have skin in the “concrete” game, rather than impartial interlocutors in an

abstract hypothetical—and can intuitively be recognized as “the other, the stranger… in a

specially intense way, existentially something different and alien.” The grounds for this extreme 6

designation do not necessarily lie in any religious, moral, economic, ethical, or ideological

difference between the two entities, but only in whether either entity judges that “the adversary

intends to negate his opponent’s way of life and therefore must be repulsed or fought in order to

preserve one’s own form of existence.” By making this decision, a sovereign commits his or her 7

people to both killing the enemy and being killed in the process, because only with existential

stakes can such atrocities be asked of them. As a result, the adversary takes on the significance

and form of a public enemy—a relationship operating on the level of people to people, nation to

nation—rather than a private rival to any one individual. The enemy is the existential antithesis 8

to a people’s way of life, and only this people can justifiably recognize, fight, and annihilate their

antithesis because it threatens to do the same to them.

In many ways, the two Koreas appear to be classic enemies in Schmitt’s framework.

Their enmity was officially declared by leading figures from both sides—Kim Il Sung in the

North and Syngman Rhee in the South—who both desired and “decided” (to be revisited later) to

Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996): 276

Ibid.7

Ibid. 288

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enter war against the other, both with the goal of reuniting the country under their own regime.

The Korean War then acted as the crucible for enmity, intensifying what was originally a

difference along ideological and economic antitheses between political factions into a truly

political situation—a situation wherein Koreans were willing to die and kill in order to

extinguish the “other” Koreans. Schmitt wrote, “It cannot be denied that nations continue to

group themselves according to the friend and enemy antithesis, that the distinction still remains

actual today, and that this is an ever present possibility for every people existing in the political

sphere.” This reading of the Korean situation suggests that Schmitt’s theory has enormous 9

descriptive power. It implies that the nature of the Schmittian political is so strong and inevitable

as a human constant, that it could cleave a previously united people in two, straight down the

latitude line of the 38th parallel. It shows that the country of Korea—an entity that had existed

as one people on one peninsula for almost a thousand years—could go from a state of chaos

under occupation (as it transitioned to the modern world of nation-states and world wars),

straight to a state of enmity between two entities through the power of the political, the power of

drawing a line through the country and declaring two separate sides enemies. North and South

Korea on the eve of the Korean War were not nearly as different from each other as the American

North and South were on the eve of the Civil War—they were more or less the same people, with

the same culture, history, and economic system. And yet, the designation of two separate states,

the declaration of war between them, and the experience of that war were enough to turn them

into existential enemies.

At the same time, the story of the two Koreas only lends support to Schmitt’s theory

through a gross simplification of who was the “decider,” the true sovereign that set these events

Ibid.9

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into motion. Schmitt’s definition of the sovereign is “he who decides”—decides who the enemy

is, decides the state of exception in which people are justified in dying to destroy the enemy, and

decides the identity of the political entity that they form in relation to the enemy. These

decisions, which seem so unilateral in theory, in practice turned out to be some of the most

controversial and complicated sequences of events in recent history, as they played out in the two

Koreas. The questions of who or what “pre-war Korea,” “post-war Korea,” “North Korea,” or

“South Korea” even were, and who decided, are extremely contentious queries to make of a

confusing and complex historiography. Though the outcome of the 20th century was ultimately

the formation and enmity of the two Koreas, it can hardly be said that this occurred solely

through the concrete decisions of the two most relevant “sovereigns,” and involved no other

parties. Schmitt explained his conditions for political existence as follows:

To demand of a politically-united people that it wage war for a just cause only is either something self-evident, if it means that war can be risked only against a real enemy, or it is a hidden political aspiration of some other party to wrest from the state its jus belli and to find norms of justice whose content and application in the concrete case is not decided upon by the state but by another party, and thereby it determines who the enemy is.  For as long as a people exists in the political sphere, this people must, even if only in the most extreme case—and whether this point has been reached has to be decided by it—determine by itself the distinction of friend and enemy.  Therein resides the essence of its political existence.  When it no longer possess the capacity or the will to make this distinction, it ceases to exist politically.  If it permits this decision to be made by another, then it is no longer a politically free people and is absorbed into another political system.   10!

It is unclear whether the entity of Korea at the time of its division, and at the time of the war that

cemented that division into enmity, was in any state to decide for itself the distinction of friend

and enemy, and by extension, whether it was in fact a “politically free people” by Schmitt’s

definition. There were so many other forces and moving pieces operating in the politics of Korea

—as it emerged a vulnerable, newly-formed, newly-independent nation-state after decades of

Ibid. 49, italics my own10

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political dominance—that the entire set of decisions that turned the two Koreas into what they

are today were compromised by other powers.

This may not be an important nor original historical distinction—it is an unsurprising

conclusion that the division of Korea, and the consolidation of this division into two enemy

states, was not solely due to the desires and decisions of Koreans, but to those of Korea’s foreign

occupiers and “friends.” According to this reading, the two Koreas did become enemies, but did

not entirely decide to do so on their own. It does not damage Schmitt’s model of the political, as

one would argue that Korea simply did not yet “exist politically,” despite having emerged out of

the war a nominally independent country, and were “absorbed into another political system”—

that of the Soviet Union, China, the United States, and the United Nations.

However, this train of thought does have strong implications for the ever-present question

of reunification. Over the half-century since the end of the Korean War, there has never stopped

being the possibility of and hope for reunifying the two countries—this desire has been

expressed by the South Korean public, as well as by North Korean refugees who have escaped to

the South. The very fact that this continues to be a salient question—despite the continued state

of hostilities between the two states—complicates Schmitt’s concept of enmity. It introduces the

idea that even while two states may be explicit enemies in a state of war—both with the military

support of their fighting collectives and both having decided to do so—their respective populaces

may simultaneously believe that they are still one people (in some form) and ultimately desire

reunification (at least in principle). This does not seem analogous to Schmitt’s prototypical

examples of enmity—for example, between Cromwell’s England and papist Spain, or Nazi

Germany and the Jewish people, for whom “unification” with each other would have been

unthinkable. This suggests that either the two Koreas were not true enemies to begin with (at

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least not proper political enemies in the Schmittian sense) or that enmity may indeed be a human

constant, as Schmitt argues, but not as unalloyed and absolute a state of being as he describes.

While Schmitt has much to say on the subject of deciding an enemy and becoming a

political entity through that decision, he has comparatively little to say about how separate

entities might become a collective, unified entity in the absence of war, without the vehicle of

declaring a common enemy. In Schmittian terms, how would (or could) a Korean reunification

occur? Can one decide to be a unified political entity as concretely and decisively—justified

through the miracle of the decision—as one decides to be an enemy?

These questions might not seem answerable through Schmitt’s concept of the political, as

it arguably works only in retrospect. The concept of the political is like an intensity barometer:

it becomes apparent when a political event has happened only after it in fact manages to happen,

overcoming inertia and crossing the intensity threshold. One can only look back in history and

recognize the moments for what they were, in Schmitt’s framework, rather than use this theory to

clear or justify the path going forward in the future: “It was a political event, and they were

enemies, because it happened.” How, then, can this be used as a way to comment on the

potential of an event in the far future? Can it be used to forecast or plan the way for Korea’s

reunification? For a future state of unity, rather than a past state of enmity? Schmitt’s

framework ultimately can help answer the question of Korea’s reunification, because the

potential for this event to occur will depend largely on the nature of the relationship between

North and South Korea, especially the way South Korea (as the entity that will largely bear the

costs and responsibilities of the operation if it comes to pass) understands it. Whether the two

countries ever did declare enmity (Schmittian or otherwise) and in what ways will determine

whether there is something separable from the political relationship between the two states,

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something reparable that can be used as the foundation on which a new unified country can

emerge. The historical, retrospective question of how the two Koreas became enemies in the first

place may thus have great bearing on its future.

!Pre-Political Korea

The last imperial age of Korea, the Choson Dynasty, lasted from 1392 to 1910. For the

last two hundred years of its rule, however, Korea existed as a pre-national, non-political entity

by Schmitt’s definition. Its goals were not those of a modern nation-state—with a sense of

cohesive national identity, total sovereignty within its borders, and competition with rival states

—but those of a culturally distinct vassal state oriented towards China. Korea operated within a

sinocentric worldview that saw Chinese culture as the universal culture, and accommodated itself

diplomatically to this great civilization. The key to Korea’s existence at this time was the

political concept of sad’e (사대), or “dealing with the great.” By this bilateral foreign policy,

Korea explicitly acknowledged the greater power of China, and offered tributes of good will in

exchange for control of their own internal affairs, importation of Chinese culture and technology,

and protection from external forces. In combination with Korea’s geography as a peninsular 11

nation—with China buffering Korea from Mongolia and Russia to the north and west, and Japan

buffering Korea from Western encroachment to the east—sad’e allowed the Choson Dynasty to

outlast all of the Chinese dynasties over a period of nearly a thousand years, and maintain a

remarkably stable, insulated existence, even as its international context changed rapidly over the

course of the 19th century. 12

Carter Eckhart (lecture at The Two Koreas, Harvard University, Cambridge, MA, Jan. 29, 2014).11

James B. Palais, "Stability in Yi Dynasty Korea: Equilibrium Systems and Marginal Adjustment," Occasional 12

Papers on Korea, no. 3 (1975): 1

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This world consisted solely of one great friend and no enemies; hence, it could not be a

political existence. Though the Korean monarch legally and theoretically held absolute power as

the supreme sovereign of his country, the kings of the 19th century were checked and restrained

by powerful internal factions. It was also accepted as a simultaneous fact of life that there 13

would always be a Chinese emperor above him, operating on another dimension of political

existence entirely, and ultimately responsible for declaring and destroying enemies (e.g.

intervening to fight Mongol invaders in the 13th century, Japanese invaders in the 16th

century). Under this peaceful, self-contained system, Korea experienced an unusually long 14

absence of enemies for several centuries, during which time its military deteriorated drastically,

leaving the country unable to defend itself independently should new enemies materialize.

Schmitt wrote that the constant development of military techniques among nations would

“perhaps permit only a few states to survive, i.e. those whose industrial potential would allow

them to wage a promising war. Should smaller and weaker states be unable to maintain their

independence by virtue of an appropriate alliance, they may then be forced, voluntarily or by

necessity, to abdicate the jus belli.” Until 1895, Korea’s great friendship with China had 15

allowed them to artificially maintain their independence. With China’s defeat in the First Sino-

Japanese War of 1894, however, Korea was wrested apart from the great friend that had been the

locus of its political existence for almost a millennium, and was set adrift with no strong

sovereign, no military, and no experience with the political, alone in a new world order of nation

states. It was this complete naiveté to political existence—stemming from a thousand years of 16

Ibid. 313

Carter Eckhart (lecture at The Two Koreas, Harvard University, Cambridge, MA, Jan. 31, 2014).14

Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996): 4515

Michael Edson Robinson, Korea's Twentieth-century Odyssey: A Short History (Honolulu: University of Hawaii 16

Press, 2007): 17

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protected peace under the profoundly different world orientation of sad’e—that set Korea up for

a series of political losses in the 20th century, that ultimately led to its current state of division

and enmity.

!Korea’s First Enemy

In 1895, Japanese assassins brutally murdered Empress Myeoungseong—the last queen

of the Choson dynasty and the symbolic leader of Korea’s anti-Japanese resistance—in her own

palace. Her husband, King Kojong, fled the court in fear of his life, and took shelter at the

Russian embassy. This marked the crashing end of Korea’s non-political existence under the 17

Choson Dynasty. Over the next half-century under Japanese occupation, Korea first began to

emerge as a nation-state with an intensely political orientation, if not the military means to act on

it. Japan became Korea’s first great existential enemy: it was in relation to Japan that a sense of

distinct Korean identity and nationalism first collectively came to consciousness among the

people of Korea, who had previously understood themselves primarily in terms of class and

individual family genealogy. Koreans began to understand themselves as part of one ethnic

nationality, or minjok (민족)—min: “people” and jok: “family”—that was strictly independent

from that of Japan. The historian Sin Ch’aeho wrote the first minjok-centred national history of 18

Korea, “A New Reading of Korean History,” in which he located the genesis of the Korean race

in the person of Tan’gun, a single progenitor of mythological parenthood—thus establishing an

independent prime mover of the Korean race, without reference to any external ancestry in

neighbouring peoples—who had founded the first Korean kingdom in the year 2333 BCE. By 19

Ibid. 1917

Ibid. 2718

Ibid.19

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1909, the year Sin’s history was published, the country of Korea was fast losing its political

sovereignty to Japan. However, the idea was that Koreans could define themselves as Korean by

belonging to a particular bloodline that could be traced back nearly 4000 years to this single,

primary progenitor; Korea’s nationhood was thus not something that depended on the existence

of an autonomous state, but something that ran through every Korean’s blood. A nation defined

in terms of its bloodline could survive whatever political power it was stripped of.

The Japanese colonial government attempted to stamp out this narrative of ethnic

distinction at ever opportunity, as they had justified their annexation of Korea based on their own

nissen dosoron theory (日鮮同祖論, 일선동조론) of “the common ancestral origin of the

Korean and Japanese races,” in which Japan had evolved to be the more advanced culture, and

thus had the right and responsibility to absorb the lesser into itself. In the later years of 20

colonialism, Japan’s policies pushed for forced assimilation, requiring their Korean subjects to

worship at shinto shrines, swear oaths to the imperial Japanese nation, speak and write only in

Japanese, and even change Korean names to Japanese names. It was a concrete manifestation of

the Schmittian enemy, in which Japan explicitly intended “to negate his opponent’s way of life…

and therefore must be repulsed or fought in order to preserve one’s own form of existence.” In 21

this way, Schmitt’s theory—that the recognition of a public enemy is the one way in which a

people truly become a collective, political entity—seems to hold true: Korean nationalism only

arose in opposition to a national, public enemy that sought to wipe out its existence as a distinct

ethnic and cultural entity. Though the Korean people had peacefully existed as an independent

pre-national cultural unit for over a thousand years, it was this kind of existential threat to its

Ibid. 4420

Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996): 2721

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very nature that finally triggered its formation as a political collective. Notably, the binding

concept of minjok carried strong racial and genealogical connotations; unlike American

citizenship, which is blind to ethnicity, the Korean concept of nationality was purposefully built

around the idea of a common bloodline. It is important to note that this was a crucial part of

Korea’s self-survival in the onslaught of Japanese assimilation, and that it remains the primary

means of defining Korean nationality today (an idea we will revisit later in this essay).

!Divided Korea

With the end of World War II, Korea was rendered briefly independent: from the day

Japan surrendered on August 15, 1945, to the day Soviet occupation forces arrived in Pyongyang

on August 24, 1945 in the North, and American occupation forces arrived in Seoul on September

8, 1945 in the South, Koreans across the peninsula celebrated their freedom from nearly forty

years of Japanese oppression. The Cairo Conference, held in December 1943, had included the

first pledge by the United States, Britain, and China (with the approval of Stalin) that “in due

course Korea shall become free and independent” … but apart from a rough agreement between 22

the Soviet Union and the United States to jointly-administer a “trusteeship” over Korea until it

could be made independent, there had been no further details on how this would unfold.

The devil, however, was most definitely in the details. Though both the Americans and

Soviets intended to achieve “the ultimate goal of creating a unified Korea under joint American

and Soviet tutelage,” the fate of the peninsula became of political interest to both global powers,

who had already clashed over who would first induce Japan’s surrender, and gain credit in post-

Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea (New York: W. W. Norton & Company, 22

2013): 17

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war negotiations in return. The US and USSR thus drew a physical line across the Korean 23

peninsula on a National Geographic map, following the 38th parallel, and created their own

military governments on their respective sides. 24

In deriving the order of law from a physical organization of space across a property line,

the American and Soviet states manifested another of Carl Schmitt’s political theories, that of

“nomos of the Earth.” Schmitt defined this as a spatial distribution and designation of property

on physical land, which constitutes the fundamental law from which all other sundry laws derive

power—“an act of legitimacy, whereby the legality of a mere law first is made meaningful.” 25

There was nothing intrinsically Soviet or American about the region of Korea north and south of

the 38th parallel, nothing that gave that particular delineation legitimacy—except that they could

defend it, and could agree with each other that this was the way the land was to be distributed.

As long as each side could hold the landed seat of their power, all other laws they made within

the region would gain power from that first fundamental law.

Thus, in drawing a line of spatial sovereignty, the US and USSR also committed a

political action, a sovereign action, that emanated from the decision of drawing a line: the power

of the line would hold as long as they could hold the line, and the power of the line was

established as soon as they decided to draw the line. “In the beginning was the fence,” wrote

Jost Trier, which Schmitt quoted in Nomos of the Earth. In the history of the two Koreas, in the

beginning there was the line. The act of claiming fundamental power over the region by virtue

of Schmitt’s spatial nomos—and having the military strength to enforce it—made the Soviet

Union and the United States the true sovereigns of the new, separated Koreas even before

Ibid. 10923

Ibid. 11024

Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York: Telos 25

Press, 2003): 74

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Koreans themselves knew they had thus separated. In the brief interlude between states of

outright enmity in Korea—after the Japanese were ousted and before the Korean War began—

Korea thus lost its sovereignty again, became another kind of entity yet again. This time, it was

not through any decision relating to an enemy, but through the decision of its foreign occupiers

to divide up their respective territories. Within the spatial bounds of each territory, the laws that

followed from these military forces became the laws of the land. As a result, the drawing of the

38th parallel not only created two legally distinct territories, but also two ideologically,

economically, and sociologically distinct spaces of life, each one formed and moulded by the

internal laws of its sovereign occupier.

Accordingly, the Soviet Civil Administration (SCA) and the United States Army Military

Government in Korea (USAMGIK) both installed their own approved Korean figureheads to lead

the newly-created Korean governments in their region, figureheads who would go hand-in-hand

with their occupiers. The Soviets selected a thirty-three year-old captain named Kim Il Sung,

who had little experience as either a military commander or a political leader, but was a Korean

communist with few ties to either the South or Chinese communists, and was thus someone the

Soviets could trust. Yu Song Chol, a Soviet Korean who later worked as Chief of Operations 26

for the North Korean army, recalled of Kim, “Even at this time, none of us was thinking that Kim

Il Sung would become the new leader of North Korea.” Kim was reportedly too little known, 27

too young, and too blandly monotonous in his communist speeches to be popular with the public,

and the SCA had to “place enormous emphasis on improving Kim Il Sung’s image through

propaganda activities.” Kim Il Sung—who would later become the revered godhead of North 28

Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea: 2426

Ibid.27

Ibid.28

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Korea, the spiritual reincarnation of the minjok in a single patriarch—thus got his start as a

puppet leader who had been cherry-picked by the Soviets for his relative manageability and lack

of competing connections to other communist groups.

In the South, there had actually already sprung a self-declared, de facto Korean

government in the interim period before the Americans had even arrived. The Korean People’s

Republic (KPR)—based in Seoul under Yo Un Hyong—had quickly taken charge in the month

between Japan’s defeat and the establishment of USAMGIK, releasing political prisoners,

assuming responsibility for public safety, organizing food distributions, and calling for a national

election to be held as early as March 1946. The KPR had called upon the incoming Allied 29

forces to observe strict neutrality with respect to Korea’s internal politics, and on September 6,

1945, called the first meeting of a representative assembly. Supported by a popular and

widespread network of local People’s Committees, which provided supplies, food, and

impromptu peacekeeping, the idea was that the Korean People’s Republic was a temporary

arrangement created by Korean people to rule themselves for the first time, and that it would lead

to full-scale democratic elections. But the American officers in charge of USAMGIK knew 30

nothing about the existing political factions in Korea. For practical ease, they worked

exclusively with wealthy, conservative Koreans who could speak English and had been educated

abroad—privileging elites who were far removed from the masses. In addition, rather than 31

taking an advisory role to the existing Korean People’s republic, Major General Archibald

Arnold (the military governor of Seoul) issued a condescending warning to the KPR that “there

is only one Government in Korea south of the 38 degrees north latitude”—the USAMGIK—and

Ibid. 3129

Carter Eckhart (lecture at The Two Koreas, Harvard University, Cambridge, MA, March 26, 2014).30

Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea: 3031

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mocked the KPR as a “puppet show” that was “entirely without any authority, power or

reality.” Cracking down on the KPR as “an act of open opposition to the Military Government 32

and the lawful authority of the Government of Korea under the Military Government,” the U.S.

instead chose to back Syngman Rhee (Yi Sung Man) as the Korean leader of the South—an

English-speaking PhD graduate of Princeton and a Christian missionary, who had also been the

first elected president of the exiled Korean Provisional Government in Shanghai. Rhee was a 33

staunch believer in the future of Korea as a liberal democracy with a market economy, and

regarded the United States as their model. 34

As Cold War tensions between the Soviet Union and the United States rose and years

passed without progression towards an independent and unified Korea, both Kim Il Sung and

Syngman Rhee repeatedly declared their desire to attack the other side, and reconquer all of

Korea under their own regime by military force. Rhee wanted to recapture North Korea to 35

fulfill the historical whole of pre-modern Korea under what he considered to be the only

legitimate Korean government, one that was approved by the United Nations and non-

communist. However, without American military support (under Truman, the U.S. was weighing

its military investments in Asia), he could do nothing. Kim, too, had importuned Stalin from at 36

least March of 1949 to approve a full-scale invasion of the South, but Stalin was unwilling to

commit unless it seemed like a swift, guaranteed win—he ultimately forced Kim to seek Mao’s

military support to secure his assent to attack: “If you should get kicked in the teeth, I shall not

lift a finger. You will have to ask Mao for all the help.” On June 25, 1950, North Korean 37

Ibid. 3132

Ibid. 3733

Sang-Hoon Lee, "Syngman Rhee’s Vision and Reality," The Review of Korean Studies, 2011: 36.34

Carter Eckhart (lecture at The Two Koreas, Harvard University, Cambridge, MA, April 2, 2014).35

Ibid. March 31, 2014.36

Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea: 6237

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troops crossed the border in a full-scale assault, catching the South off-guard. What followed

was an all-out war that crossed up and down the peninsula and involved troops from North

Korea, China, the Soviet Union, South Korea, the United States, Britain, and at least twelve other

countries of the United Nations, and ultimately ended with a truce, not a peace treaty. 38

!Brothers at War

Did North Korea and South Korea become enemies (in Schmittian terms) the moment the

North invaded the South? Did this constitute a decision that changed the game between the two

countries and made them true political enemies from that concrete moment on? When all the

complexities and external parties that constituted this “decision” are taken into account, it is clear

that Schmitt’s concept of the political—that the unilateral decision to destroy an enemy is what

instantly forms the political nature of a state—does not fully encompass or explain this formative

event between North Korea and South Korea. While it is true that the Korean leaders of both

states intended to attack the other, and that the two Koreas did indeed fight a bloody war against

each other, this decision still did not meet the essence of Schmitt’s conditions for the political.

First, neither Kim Il Sung nor Syngman Rhee were made true sovereigns solely by their

pushes for war. The true Schmittian sovereign is “he who decides:” in North Korea’s case,

Stalin was the ultimate decider whose approval was needed to mobilize any troops, even North

Korean ones; in South Korea, Rhee was not able to decide at all, even after the South had already

been attacked—Rhee had to wait for the United Nations (itself an extension of U.S. foreign

policy at that point, as the Soviet Union had boycotted Security Council sessions) to come in and

W. D. Ehrhart, and Philip K. Jason, Retrieving Bones: Stories and Poems of the Korean War (New Brunswick, 38

N.J.: Rutgers University Press, 1999): xiii.

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fight on his country’s behalf. Even if it had been a more straightforward situation that 39

depended solely on these two leaders’ individual decisions, the fact that these particular

individuals had originally been installed by greater powers as proxy points in a greater Cold War

made their sovereignty artificial to Korea’s concrete situation. Schmitt wrote that if an entity is

the genuine enemy of a people, the demand to fight it is “something self-evident”—if it is not a

genuine enemy, “it is a hidden political aspiration of some other party.”  The decision to pursue 40

a war in this case was reified not by the fighting masses of either Korean state, but by the foreign

forces that fought the war with and for them in the service of their own national interests. Had

the Soviet Union and the United States not established a joint occupation and a physical

delineation of two states—introducing their own political binary and enemy orientation in the

process—it is not at all “self-evident” that the Korean state would have decided, by itself, to

engage in a civil war between communist and non-communist factions.

In addition, neither North nor South Korea were fighting with the aim to exterminate the

other’s existence; they merely sought to put down the other regime. It was a war caused by a

difference in politics, rather than an intrinsically political war. Though the North and South

certainly espoused economic and ideological antitheses, there is nothing to suggest from the

Korean perspective on either side that these differences were worth eliminating at least half the

population for. This difference in politics was amplified and intensified by Cold War alliances,

arms, and rhetoric that turned an economic and ideological difference into a political situation—

but one that was motivated primarily by forces external to the Koreas themselves.

For the Korean leaders of the country, the most heavily emphasized purpose of the war

was to preserve the people of the country under one banner, to reunify them throughout the

Ibid. xiv39

Carl Schmitt, The Concept of the Political: 49; italics my own.40

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whole historical peninsula that was their heritage. Before his plans to reconquer the South

solidified, Kim Il Sung confided to Terentii Shtykov, the Soviet head of North Korea, “Thinking

about reunification makes it impossible for me to sleep at night.” Syngman Rhee’s wife 41

worried in her memoirs that officials in the Allied forces called Rhee a “unification nut,” but that

he nonetheless “pledged that we will achieve unification regardless of any hardships or sacrifices

we may encounter.” This aspiration for unity on both sides, more than anything, paints a very 42

different picture of the enmity between the two Koreas: neither side wanted to obliterate the

people of the other, for they were all Koreans, tragically separated by a series of political events

that were always outside their control. The argument on both Korean sides of the war was that

military force would be the only way to overcome the impasse towards reunification caused by

the politics of communism vs. democratic capitalism, Soviet Union vs. United States. Though

each regime certainly wanted to reunify the country under their own ideology, the terminal goals

were reunification and independence from other powers as one intact, Korean nation.

Last, there is a separation that was (and still is) perceived to exist between the state-to-

state level conflict, and the individual relationships that remained between people, between

families. Schmitt wrote, “If a political entity exists at all, the right of vendettas between families

or kinsfolk would have to be suspended at least temporarily during a war… By virtue of this

power over the physical life of men, the political community transcends all other associations or

societies.” But even as state power compelled Koreans to follow the political cause over their 43

personal connections, it never completely overwrote them. Though the two Koreas ended up as

public enemies, they still shared the private bonds of family. When the war finally ended and the

Sheila Miyoshi Jager, Brothers at War: The Unending Conflict in Korea: 6141

Sang-Hoon Lee, "Syngman Rhee’s Vision and Reality," The Review of Korean Studies, 2011: 3842

Carl Schmitt, The Concept of the Political: 4743

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armistice instituted the iron curtain of the DMZ between the two states, one of the greatest

tragedies that continued was the permanent separation of over 1.5 million Korean families

between North and South. Even while veterans and survivors of the war cursed the regimes 44

that had caused it and the enemy soldiers that had fought in it, they also mourned for the siblings,

parents, spouses, and children that were now in a state of forced separation, never to see each

other again. As more time passed and the two Koreas evolved down radically different paths,

South Koreans became more sympathetic to the suffering of the North Korean people under their

oppressive regime, especially during the North’s great famine of the late 1990s, when over 3

million people are estimated to have died of starvation. 45

The image that seems to best summarize the relationship between the two Koreas (as

understood from the South Korean perspective) is the “Statue of Brothers” designed by Choi

Young Jeep, which stands in the War Memorial of Korea in Seoul. The caption reads:

The Statue of Brothers is an 18 meter wide and 11-meter high symbol of the Korean War… The upper part of the statue depicts a scene where a family's older brother, an ROK officer, and his younger brother, a North Korean soldier, meet in a battlefield and express reconciliation, love, and forgiveness… The crack in the dome stands for the division of Korea and the hope for reunification… The links of iron chain on the ceiling signify the unbreakable bonds of a unified Korea. 46!

The characterization of the two Koreas as brothers at war addresses both the political nature of

their separation—the fact that the two Korean states did wage war against each other, declaring

each other public enemies—as well as the deep personal nature of their perceived unity through

genealogy, as part of the same ethnic family of minjok. Brothers can fight each other to the death

Andrei Lankov, "Reunion of families is a glimmer of hope in Korea," Al Jazeera, October 25, 2015. http://44

www.aljazeera.com/indepth/opinion/2015/10/reunion-families-glimmer-hope-korea-151025071326742.html Marcus Noland, Sherman Robinson, and Tao Wang, "Famine in North Korea: Causes and Cures," Economic 45

Development and Cultural Change 49(4), 2012: 1 War Memorial of Korea. "The Statue of Brothers." Informational Plaque. Seoul, 1994.46

Jo ���20

if they happen to stand on two separate sides of a political conflict, but they will always be

related by blood and ancestry. This ability to separate separate personal unity from public

enmity during and after the Korean War is one of the strongest arguments against the two Koreas

as Schmittian enemies—a true political enemy, by Schmitt’s definition, would instinctively be

recognized as so fundamentally foreign that they threaten one’s own way of life. It is an

existential flinch away from the other that seeks to destroy one’s identity. Brothers, no matter

how politically they act against each other under decisions made by states, cannot pose an

existential threat to each other’s natures because they are of the same origin, the same

fundamental substance.

!!

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The Question of Reunification

Carl Schmitt wrote, “The criterion of the friend-and-enemy distinction in no way implies

that one particular nation must forever be the friend or enemy of another specific nation or that a

state of neutrality is not possible or could not be politically reasonable.”  This brings us back to 47

the contemporary question of reunification. Does a Schmittian analysis of enmity between the

two Koreas help provide a path forward of any kind for their possible unification in the future?

One thing Schmitt’s theory makes absolutely clear is that Kim Jong Un is the primary

generator of contemporary political enmity between the two states (as were his forefathers), and

would have to be removed from the picture in order for any plausible attempt at reunification to

take place. The modern North Korean state exemplifies Schmitt’s concept of the political: the

sovereign, in the form of the Kim family leader, designates any country that attempts to perturb

its way of life a mortal enemy of North Korea, and constructs a revisionist history and national

narrative that orients a massive fighting collective against this enemy. North Korea’s political

philosophy of juch’e—or “absolute self-reliance”—allows it to define itself as a state entirely in

relation to its enmity towards towards the rest of the world, which seeks to eliminate its nuclear-

armed, hermit-kingdom existence. Because North Korean national identity also revolves so

heavily around the cult of personality of the Kim family, if this sovereign figure were to

disappear, it could be that North Korea would no longer act as a politically united people.

In that scenario, what would then become the basis of a new relationship between North

and South Korea? Schmitt wrote that “the friend, enemy, and combat concepts receive their real

meaning precisely because they refer to the real possibility of physical killing” —but is there a 48

way to gain a politically meaningful relationship without physical killing, without the declaration

Carl Schmitt, The Concept of the Political: 3447

Ibid. 3348

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of another enemy? Schmitt does describe a hypothetical unification of a sort in which “all

humanity and the entire world were to become a unified entity based exclusively on economics

and on technically regulating traffic.” His take on this scenario is that this would be akin to a

group of customers using the same utility company, or a set of passengers sitting in the same bus

—an entirely apolitical arrangement of people around “the poles of ethics and economics.” By 49

this, he implies that in the absence of an adversary that places existential pressure on a group of

people to survive, there will be no force that causes a group of people to act decisively, strongly,

and collectively. No matter how intimate a spiritual bond one may have with their local

Unitarian Universalist church community, for example, unless this community bands together in

the face of a destructive enemy and destroys that enemy together, there is always the likelihood

that this association will be broken or abandoned by some shift of events. Schmitt would argue

that the collectivity that arises from political tension, on the other hand, is one of the strongest

forces in human society—much stronger than bonds of economic, ethical, or religious

convenience—and that to avoid or constrain this political drive is to deny a constant in human

nature. This seems true, given Korea’s pre-political history, where a longterm lack of political

pressure and existential risk caused Korea to fail to act collectively at crucial moments, leading

to a century of external control by more powerful political forces.

Whether this is judged to be good or bad, it holds implications for two countries facing

the prospect of unification after a state of enmity. If the intended purpose of a reunification is to

bind a fragmented nation together, it will likely want the strongest of human bonds, rather than

those based on cost-benefit analyses or humanitarian concerns. It may even be beneficial for

such an entity—if it is optimizing for strength of internal bonds—to become a political

Ibid. 5749

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collectivity in Schmittian terms by purposefully orienting itself relative to an “enemy” of some

kind. Rather than choosing a flesh-and-blood enemy in the form of some foreign nation,

however, it seems possible to extract the abstract source of political tension from Schmitt’s

concept of the enemy itself.

Schmitt, after all, could be described as an observer of human nature, an anthropologist

operating at the level of nation states. Schmitt’s variation on Hobbes is to see the state of nature

literally, to see “the physical killing of human beings” as a function of the ever-present political

drive that affects both the level of individual humans and the level of fighting collectives. He

claims that one sees the nature of life as fundamentally antagonistic through moments of

exception that break through the crust of the normative; that no matter how carefully human

society constructs its legal, economic, sociological, and intellectual structures, “state and politics

cannot be exterminated.” In this respect, his concept of the political takes on biological, almost 50

Darwinian tones—as though this constant political drive at the scope of a state is analogous to

pure survival instinct at the scope of an organism. Schmitt’s prototypical example of political

enmity—Cromwell on the subject of papist Spain—emphasizes this overlap with the facts of

nature:

The first thing, therefore, that I shall speak to is That that is the first lesson of Nature:  Being and Preservation... The conservation of  that, 'namely of our National Being," is first to be viewed with respect to those who seek to undo it, and so make it not to be." Let us thus consider our enemies, "the Enemies to the very Being of these Nations" (he always repeats this "very Being" or "National Being" and then proceeds): "Why, truly, your great Enemy is the Spaniard.  He is a natural enemy.  He is naturally so; he is naturally so throughout… 51!

Ibid. 7850

Ibid. 6751

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Through this implicit comparison, Schmitt is not being arbitrarily belligerent in claiming that the

political drive will disappear; he might instead be saying that this is a larger manifestation of an

evolutionarily-engrained survival instinct to always react against the thing that will destroy one’s

existence, because it will attempt to do the same. This holds true for political entities as well as

for individuals. In this state of nature, a people’s “way of life” or “National Being” might be

analogous to an animal’s “genetic payload”—both of these are inherited materials that define the

nature of an entity, that determine its identity. They do not refer to the state of merely being

alive, but rather to the particular quality that defines their being—a “way of life” rather than life

itself. The “natural enemy” might then be analogous to “instinctive predator”—this instant

recognition of the predator on the part of the prey is akin to why an impartial third party cannot

decide who the enemy is on behalf of the parties that are concretely involved; an entity either

recognizes an enemy correctly for itself and survives, or it does not and it dies. This also

explains how Schmitt is able to justify all political actions as long as they are genuinely political

—one would not say that an animal in the state of nature is unjustified in defending itself from

what it perceives to be an existential threat. In this model of Schmitt’s concept of the political,

the essential enemy is not the literal organism or entity that threatens to destroy one’s life, but

rather the threat of destruction itself—the fear that one’s “way of life,” or the source of one’s

nature or identity, will be annihilated.

If the concept of the enemy can be abstracted out in this way, it then offers an application

to the case of the two Koreas. The basis of ethnic nationalism—the concept of minjok—for both

North and South Korea still rests on the idea that all Koreans share a common bloodline,

originating from their mythological forefather Tan’gun; it is through this focus on ancestry that

Koreans were able to forge a national identity even while their culture and political systems were

Jo ���25

being forced into Japanese assimilation. If this is the way South Korea chooses to define its

“National Being” or “way of life,” the prospect of losing the chance to reunite with its long-lost

kin in the North might be akin to losing part of its bloodline, part of its extended family. This

would be especially true if other nation states were to compete with South Korea for the

opportunity to absorb North Korea’s population and resources—for example, for North Korea to

become a Chinese province, as some experts forecast. Given South Korea’s ominous decline in 52

population growth, as well as the growing rate of interracial marriages in the traditionally

homogenous country, this may well count as an existential threat to the Korean “way of life.”

If this version of Schmittian enmity holds, then as long as the Korean people feel that

they are still one people in some way—genetically, historically, nationally—they could become a

strong, unified collective in the face of this danger of dissolution. The concept of the two Koreas

as two brother—who were previously estranged due to the political conflicts of the last century,

but fundamentally made of the same existential material—could pave a possible pathway

forward in the event of reunification. Though Carl Schmitt’s concept of the political does not

seem to fully capture the idiosyncrasies of Korean enmity in the past, with a degree of

abstraction, it can perhaps describe what it will take to create the strong, unified, political entity

that may yet come to exist. Whether it is through Schmitt’s definition of enmity and friendship

or another, the way in which the two Koreas come to understand the relationship between them

will have great bearing on what they will look like in the future.

!!!!!! John Park (guest lecture at The Two Koreas, Harvard University, Cambridge, MA, April 18, 2014)52

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