International Law and Human Plurality in the Shadow of Totalitarianism: Hannah Arendt and Raphael Lemkin
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International Law and Human Plurality in
the Shadow of Totalitarianism: Hannah
Arendt and Raphael Lemkin*
SEYLA BENHABIB
I. INTRODUCTION
HANNAH ARENDT AND Raphael Lemkin were witnesses to the twentieth century. They both experienced the dislocating transformations on the European continent as a consequence of two World Wars, lost their States as well as their homes in this process, narrowly escaped the clutches of the Nazi extermination machine, and made it to the New World through sheer luck and fortuitous circumstance. Their thought is marked by the cataclysms of the last century, and they have in turn emerged as indispensable interlocutors for all of us in understanding this past.
Arendt and Lemkin were contemporaries, and there are astonishing parallels in their early biographies. She was born in Hannover in 1906 (d 1975) and grew up in Koenigsberg in East Prussia. After the First World War, the Polish Corridor was created and cut East Prussia and Koenigsberg off from the rest of Weimar. In 1945, Koenigsberg was occupied by the Soviets and renamed Kaliningrad. Lemkin was born in Bezwodene in 1900, then part of Tsarist Russia. Between the two World Wars (1918–39) Bezwodene became part of Poland, and today is Bezvodna in Belarus.
When Arendt was arrested by the Gestapo in the Spring of 1933 and was forced to flee to Paris via Prague with her mother, she had been carrying out research in the Prussian State Library at the request of Kurt Blumenfeld on anti-Semitic measures undertaken by Nazi non-governmental organisations, business associations and professional clubs to exclude Jewish members. Her Zionist friend, Kurt Blumenfeld, in turn, was preparing to present this material at the 18th Zionist Congress. During those very same years, Ralph Lemkin was a young clerk in the Polish State Prosecutor’s office who had been collecting documents on Nazi war legislation, particularly those affecting cultural, linguistic, religious activities and artifacts of cultural and religious groups. In 1933, he had sent a paper to a League of Nations conference in Madrid, in which he proposed that ‘the crimes of barbarity and vandalism be considered as new offences against the law of nations’.1 In 1939, he fled from Poland and reached Stockholm, where he continued to do extensive research on Nazi occupation laws throughout Europe. On 18 April 1941, he arrived in the United States via Japan. That very same year, Arendt and her second husband, Heinrich Bluecher, arrived in New York via Portugal.
Yet in contrast to Arendt, who acquired world-wide fame after her arrival in the USA with her many works and university appointments, Lemkin, after the general acclaim he received with the passage of the Genocide Convention by the United Nations in 1948, fell into obscurity and died a lonely death, destitute and neglected in New York in 1959.
It is certainly fascinating to speculate whether these Jewish refugees, who were caught up in the great dislocations of their time, ever met one another in some location or association in the United States. We simply do not know. What is even more astonishing is the lack of any discussion in Hannah Arendt’s work of Lemkin’s great book on the concept of genocide,2 or any evidence that Lemkin knew Arendt’s work on totalitarianism, which certainly was the most powerful historical documentation and philosophical analysis in the early 1950s of the unprecedentedly murderous character of the Nazi regime. Arendt and Lemkin appear to have existed in the same time and space coordinates without ever encountering one another. It is thus incumbent upon retrospective readers of their work to put together the pieces of the puzzle in this missed encounter.
This missed encounter may itself be viewed as a metaphor for the ways in which not only their lives but also their thought ran so close to each other and yet remained so distant.3 In 1944, Ralph Lemkin published Axis Rule in Occupied Europe, in which he demanded that a new category in the law of nations be formulated in order to reckon with and bring to justice war crimes committed by Nazis and their Allies against the many peoples of Europe. He was concerned that international law ought to recognise the unprecedented nature of the genocide of Jews and other peoples. In 1951 Hannah Arendt published The Origins of Totalitarianism which also exposed the unprecedented political nature of totalitarianism as a novel form of political rule in history—in fact, as a transformation of the sphere of the political as such. Yet, unlike Lemkin, Arendt was quite sceptical that declarations of human rights, international conventions and the like could help restore the destroyed political fabric of the world after the Second World War. In a passage which almost seems to take aim at Lemkin’s efforts to pass the Genocide Convention, Arendt wrote:
Even worse was that all societies formed for the protection of the Rights of man, all attempts to arrive at a new bill of human rights were sponsored by marginal figures—by a few international jurists without political experience or professional philanthropists supported by the uncertain sentiments of professional idealists. The groups they formed, the declarations they issued show an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals. No statesman, no political figure of any importance could possibly take them seriously and none of the liberal or radical parties in Europe thought it necessary to incorporate into their program a new declaration of human rights.4
Did Arendt possibly have Lemkin in mind when she referred in dismissive terms to those ‘international jurists without political experience’? And could she have been referring to Eleanor Roosevelt, the tireless force behind the passage of the Universal Declaration of Human Rights in 1948, when she takes a swipe at ‘professional philanthropists supported by the uncertain sentiments of professional idealists’? There are no references in Arendt’s work, as far as I can tell,5 to Raphael Lemkin.
You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it … Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder … And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations—as though you and your superiors had any right to determine who should and who should not inhabit the world—we find that no one, that is, no member of the human race, can be expected to share the earth with you. This is the reason, and the only reason, you must hang.7
I want to suggest that these two quotations—from The Origins of Totalitarianism and from Eichmann in Jerusalem—are like book-ends marking the evolution of Arendt’s thought from scepticism towards international law and human rights8 in the 1950s toward a cautious confirmation of their role in shaping politics among nations in the 1960s. And this change of heart on Arendt’s part was, whether or not she personally was acquainted with or knew Ralph Lemkin’s work, indebted to his achievement. He remained one of those ‘obscure international jurists’, in her words, who single-handedly and tirelessly worked to craft the Convention on Genocide and saw it adopted by the United Nations on 9 December 1948. I shall argue in this essay that with her claim that Eichmann must die because he ‘carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations’, Arendt not only confirmed Raphael Lemkin’s understanding of the crime of genocide as the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’,9 she gave it a firm ontological grounding in the human condition.
In tracing this transformation in Arendt’s thought, the first step will be to delve into her analysis of the dilemmas of the modern European nation state and the role of this institution in the rise of European anti-Semitism; the second step is to consider her discussion of the problem of minorities and of statelessness in the inter-war period. For Arendt, anti-Semitism is not an eternal aspect of the human condition or of human history. It originates with the interlacing of historical, socio-economic, political and cultural circumstances around the rise of the modern nation state and the emancipation of European Jewry. These two political developments in turn fuel her profound pessimism about the role of modern political and legal institutions in the European continent, and encourage her scepticism that they are unable to resolve the paradoxes that they themselves create.10
Raphael Lemkin, by contrast, is a jurist trained in the law of nations, and for him the rise of European anti-Semitism and the eventual destruction of European Jewry need not be explained in terms of the fate of the Jews alone. He considers genocidal anti-Semitism to be one episode among others in the long history of the cultural extermination of human groups; the Holocaust is to be singled out for its intensity and extent rather than its logic. Lemkin retains his faith in the relative autonomy of legal institutions vis-à-vis the political process, but instead of documenting the folly of the League of Nations and of Minority Treaties, as Arendt does, he strives to put into legal coda the unfulfilled promises of this institution, in particular with respect to minority rights and vulnerable peoples. In the 1950s both agree, however, that the ‘rule of law’ in the American republic has reached the right balance between politics and the law.11 Above all, they believe that political traditions in the United States have helped ameliorate the fatal confusions which recurred on the Continent as between the supremacy of the will of the nation, understood as a homogeneous ethno-cultural entity, and the constitution of a State, which ought to guarantee equality in the eyes of the law and equal rights to all its citizens regardless of their ethnic origin.12
I begin with a brief consideration of Arendt’s analysis of the origins of European anti-Semitism and the failure of the Minority Treaties in the inter-war period. I turn then to Lemkin’s crucial innovations in international law with the introduction of the concept of ‘genocide’. I argue that underlying this legal concept is an ‘ontology of the group’. While little noted in the literature on Lemkin, this concept has two origins: one is the legal category of ‘minorities’ as defined by President Wilson’s 14 Points; and the other is a Herderian belief in the group as the conditio sina qua non of all human artistic and cultural achievement.13 Arendt, by contrast, only harbours scepticism towards such group concepts. Yet, like Lemkin, she believes in the ontological value and irreducibility of human plurality. It is because we inhabit the world with others who are like us and yet always different from us that the world is perspectival and can manifest itself to us only from a particular vantage point. Nevertheless, plurality need not be constituted through the ‘ascribed’ groups of ethnicity, nationhood, race or religion alone. Quite to the contrary. It is only when ascription is transcended through association and human beings come together for a joint purpose in the public sphere that plurality, which is the human condition, is most strikingly revealed. I shall argue that Arendt’s philosophical grounding of the concept of plurality provides the concept of genocide with one of its strongest moral and existential underpinnings.14
II. ANTI-SEMITISM AND THE NATION STATE IN ARENDT’S THOUGHT
In her reflections on anti-Semitism in the aftermath of the Holocaust and after the fate of German-Jewry had become sealed, Arendt put forth a radical contention: anti-Semitism, she argued, far from being an ‘eternal’ dimension of the relationship between Jews and gentiles, represented, rather, a thoroughly modern phenomenon.15 As such, it reflected the disintegration of traditional political structures in Europe, and, in particular, the decline of the nation state in the aftermath of European imperialism in the second half of the nineteenth century. According to Arendt, anti-Semitism had to be understood not in isolation, but in the context of a crisis of Western civilization that far exceeded the importance of the ‘Jewish Question’.
In thus framing the ‘Jewish Question’ against a much broader political background, Arendt challenged a number of traditional views on anti-Semitism. Foremost among them was the idea that modern anti-Semitism simply represented a new form of religiously-motivated ‘Jew hatred’. Against this view, Arendt argued that, in effect, ‘even the extent to which the former derives its arguments and emotional appeal from the latter is open to question’. As she wrote in a crucial and characteristically controversial passage from the Origins of Totalitarianism:
The notion of an unbroken continuity of persecutions, expulsions and massacres from the end of the Roman Empire to the Middle Ages, the modern era, and down to our own time, frequently embellished by the idea that modern antisemitism is no more than a secularized version of popular medieval superstitions, is no less fallacious (though of course less mischievous) than the corresponding antisemitic notion of a Jewish secret society that has ruled, or aspired to rule, the world since antiquity.16
Arendt’s strong language in this passage is meant to drive home her point unambiguously: to understand the new in light of the old was, she suggests, fundamentally to misunderstand it. No amount of historical detail about the persecution of Jews could explain what she considered an unprecedented phenomenon. An adequate understanding of modern anti-Semitism therefore required new categories of thought.17 Underpinning all these contentions, and thus Arendt’s theory of anti-Semitism as a whole, was a fundamental paradox: modern anti-Semitism rose as the modern nation state declined; therefore, the suggestion that anti-Semitism was a by-product of extreme nationalism was simply mistaken. As she explained, ‘[u]nfortunately, the fact is that modern anti-Semitism grew in proportion as traditional nationalism declined, and reached its climax at the exact moment when the European system of nation-states and its precarious balance of power crashed’.18 It was only in light of these events, unfolding on a European and indeed a global scale, that it was possible to understand what would have been an otherwise deeply perplexing development: the enormous significance that the ‘Jewish problem’ acquired for the Nazis.
The group of Jews who had inherited their wealth from the Court Jews of the absolutist State seemed ideally suited to serve the purposes of the modern nation state, since they were the only group in society that ‘did not form a class of [its] own and … did not belong to any of the classes in their countries’.19 As a result, they could offer the emergent State both the financial backing and the political loyalty it so desperately needed. The distance from Court Jew to European banker seemed but a short step away. And indeed, the European banker continued to be of use to the State even as it subsequently achieved a higher degree of consolidation. Even as their political role diminished as the result of subsequent political developments, Jewish bankers nevertheless remained useful as international mediators among nation states.
The peculiar economic position occupied by the Jews as lenders and bankers, bailing out and supporting first the absolutist regimes of Europe and subsequently national governments, gave them a unique and problematical profile. They were ‘within the nation’ but never really ‘of the nation’. They enjoyed a ‘supra-national’ and almost ‘proto-cosmopolitan’ existence, which at one and the same time called forth and belied the universal belief in ‘the rights of man’. The Jews seemed to represent ‘human rights as such’. Yet at the same time, their problematic position within the nation also evidenced their vulnerability in virtue of not clearly belonging to a collectivity that would stand up for them. This is why for Arendt, as well as for Theodor Herzl, the Dreyfus case was so significant. Even after the legacy of the French Revolution, and within the ‘civic nation’ of France, the Jews remained outsiders. After the Franco-Prussian War (1870–71), Dreyfus, an Alsatian Jew and an officer in the French army, was accused of being a spy for the Germans. Jewish existence thus revealed the fragile balance between the universalistic aspirations of the modern nation state and the principle of ‘national sovereignty’. Such sovereignty would repeatedly be defined not in terms of a community of citizens and equals, but in terms of an ethnos of blood and belonging.20 Particularly after the collapse of the nation state system in Western Europe in the wake of overseas imperialism, and the destruction of the Kaiserreich, the Russian, the Austro-Hungarian and Ottoman Empires in central and eastern European territories, a political and legal chaos exploded to which the nation state system as a model of ‘inter-State order’ was unable to provide answers.21
It is also at this point that the threads connecting the experiences of the failed liberal emancipation of the German Jews to whom Arendt belonged with the collective experiences of the majority of Eastern European Jews, as articulated for us most poignantly through Lemkin’s category of ‘genocide’, become visible.
In Axis Rule in Occupied Europe, Lemkin also considers the legal status of the Jews in chapter VIII.22 He observes matter-of-factly that the definition of a Jew was based by Axis powers (among which are included not only Germany, but Italy, Hungary, Bulgaria and Rumania too) upon the Nuremberg laws: ‘A Jew is any person who is, or has been, a member of the Jewish faith or who has more than two Jewish grandparents.’23 The latter are considered Jewish if they are, or have been, members of the Jewish faith. Lemkin is particularly attentive to differences in the treatment of Jews from France, Norway, Belgium and The Netherlands in the hands of the Nazis, in contrast with those hailing from the eastern European territories; but after the deportation en masse to Poland of western European Jews, he claims, these differences among different Jewish nationalities evaporated.
In contrast to Arendt’s reflections, there is no social, economic, psychological or cultural analysis of European anti-Semitism in this work, but rather a very detailed account of the race-policies of the Nazis and their attempts at the Germanisation of the European continent. Whereas Arendt attempts to understand the causes of anti-Semitism, Lemkin focuses on the consequences of racialist Nazi ideology. Prejudice and genocide, among human groups—which in his unpublished Notes is extended as far as the colonisation of the Aztecs and the Incas, the destruction of early Christians by the Romans, and less controversially, to the genocide of Ottoman Armenians—appear rooted for him in a deep-seated anthropological predilection of the human species.24 It is the law and human institutions which can counter this. ‘Only man has law,’ he is reported to have said.25
Arendt’s and Lemkin’s analyses of anti-Semitism thus show little affinity: for her the emergence of the Jewish Question in the heart of nineteenth- and early twentieth-century Europe requires a full-scale analysis of the paradoxes of the modern nation state system, whereas he sees deep-seated tendencies throughout human history towards the persecution of vulnerable groups, and among them the Jews. It is the goal of law to protect the vulnerable against the predator and the exploiter, but the law cannot eradicate evil from human heart.
It is in their reflections on the question of minorities in Europe between the two World Wars that Arendt and Lemkin tread some common ground.
III. ARENDT ON STATELESSNESS, THE MINORITY TREATIES AND ‘THE RIGHT TO HAVE RIGHTS’
The dissolution of the multinational and multiethnic Russian, Ottoman and Austro-Hungarian empires, and the defeat of the Kaiserreich in 1918, led to the emergence of nation states, particularly in eastern-central European countries that enjoyed little religious, linguistic or cultural homogeneity. These successor States—Poland, Austria, Hungary, Czechoslovakia, Yugoslavia, Bulgaria, Lithuania, Latvia, Estonia, the Greek and the Turkish republics—controlled territories in which large numbers of so-called ‘national minorities’ resided. On 28 June 1919, the Polish Minority Treaty was concluded between President Woodrow Wilson and the Allied and Associated Powers, to protect the rights of minorities who made up nearly 40 per cent of the total population of Poland and consisted at that time of Jews, Russians, Germans, Lithuanians and Ukrainians. Thirteen similar agreements were then drawn up with various successor governments, ‘in which they pledged to their minorities civil and political equality, cultural and economic freedom, and religious toleration’.26 Not only was there a fatal lack of clarity as to how a ‘national minority’ was to be defined, but the fact that the protection of minority rights applied only to the successor States of the defeated powers, and not to the victors—Great Britain, France and Italy—who refused to consider the extension of the Minority Treaties to their own territories, created cynicism about the motivations of the Allied Powers in supporting minority rights. This situation led to anomalies whereby, for example, the German minority in Czechoslovakia could petition the League of Nations for the protection of its rights, but the large German minority in Italy could not. The position of Jews in all successor States was also unsettled: if they were a ‘national minority’, was it by virtue of their race, their religion or their language that they were to be considered as such, and exactly which rights would this minority status entail? For Arendt, the growing discord within and the political ineptitude of the League of Nations, the emerging conflicts among so-called national minorities themselves, as well as the hypocrisy in the application of the Minority Treaties, were all harbingers of developments in the 1930s. The modern nation state was being transformed from an organ which would execute the rule of law for all its citizens and residents, into an instrument of the nation as a narrowly ‘imagined’ ethnonational community: ‘The nation has conquered the state, national interest had priority over law long before Hitler could pronounce “right is what is good for the German people.”’27 This statement from Hans Frank, the former German Minister of Justice and Governor General of occupied Poland, is also cited by Lemkin, who renders it as ‘[l]aw is that which is useful and necessary for the German nation’.28
The perversion of the modern State from an instrument of law into one of lawless discretion in the service of the ethnic nation was evident when States began to practice massive denaturalisations against unwanted minorities, creating millions of refugees, deported aliens and stateless peoples across borders—special categories of humans created through the actions of nation states. In a territorially bounded nation state system, or in a ‘State-centric’ international order, one’s legal status is dependent upon protection by the highest authority which controls the territory upon which one resides and issues the papers to which one is entitled. One becomes a refugee if one is persecuted, expelled and driven away from one’s homeland; one becomes a minority if the political majority in the polity declares that certain groups do not belong to the supposedly ‘homogeneous’ people; one is a stateless person if the State whose protection one has hitherto enjoyed withdraws such protection, nullifying the papers it has granted; one is a displaced person if, having been rendered a refugee, a minority or a stateless person, one cannot find another polity to recognise one as its member and remains in a state of limbo, caught between territories, none of which desire one to be its resident. It is here that Arendt concludes:
We become aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerge who had lost and could not regain these rights because of the new global political situation … The right that corresponds to this loss and that was never even mentioned among the human rights cannot be expressed in the categories of the eighteenth-century because they presume that rights spring immediately from the ‘nature’ of man … the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible.29 (emphasis added)
Written in 1951, three years after the adoption of the Genocide Convention by the UN General Assembly, this quotation betrays Arendt’s profound ambivalence towards the nation state system. It remains one of the most puzzling aspects of her political thought that, although she criticised the weaknesses of this system, she was equally sceptical toward all ideals of a World State and in fact, at this stage in the early 1950s, towards all instruments of international law to resolve these problems.
Arendt’s philosophical and political ambivalence towards the nation state has complex dimensions. The nation state system, established in the wake of the American and French Revolutions, and bringing to culmination processes of development at work since European absolutism in the sixteenth century, is based upon the tension, and at times outright contradiction, between human rights and the principle of national sovereignty. The modern State has always been a specific nation state.30