Much worse than what statelessness did to the time-honored and necessary distinctions between nationals and foreigners, and to the sovereign right of states in matters of nationality and expulsion, was the damage suffered by the very structure of legal national institutions when a growing number of residents had to live outside the jurisdiction of these laws and without being protected by any other. The stateless person, without right to residence and without the right to work, had of course constantly to transgress the law. He was liable to jail sentences without ever committing a crime. More than that, the entire hierarchy of values which pertain in civilized countries was reversed in his case. Since he was the anomaly for whom the general law did not provide, it was better for him to become an anomaly for which it did provide, that of the criminal.
The best criterion by which to decide whether someone has been forced outside the pale of the law is to ask if he would benefit by committing a crime. If a small burglary is likely to improve his legal position, at least temporarily, one may be sure he has been deprived of human rights. For then a criminal offense becomes the best opportunity to regain some kind of human equality, even if it be as a recognized exception to the norm. The one important fact is that this exception is provided for by law. As a criminal even a stateless person will not be treated worse than another criminal, that is, he will be treated like everybody else. Only as an offender against the law can he gain protection from it. As long as his trial and his sentence last, he will be safe from that arbitrary police rule against which there are no lawyers and no appeals. The same man who was in jail yesterday because of his mere presence in this world, who had no rights whatever and lived under threat of deportation, or who was dispatched without sentence and without trial to some kind of internment because he had tried to work and make a living, may become almost a full-fledged citizen because of a little theft. Even if he is penniless he can now get a lawyer, complain about his jailers, and he will be listened to respectfully. He is no longer the scum of the earth but important enough to be informed of all the details of the law under which he will be tried. He has become a respectable person.42
A much less reliable and much more difficult way to rise from an unrecognized anomaly to the status of recognized exception would be to become a genius. Just as the law knows only one difference between human beings, the difference between the normal noncriminal and the anomalous criminal, so a conformist society has recognized only one form of determined individualism, the genius. European bourgeois society wanted the genius to stay outside of human laws, to be a kind of monster whose chief social function was to create excitement, and it did not matter if he actually was an outlaw. Moreover, the loss of citizenship deprived people not only of protection, but also of all clearly established, officially recognized identity, a fact for which their eternal feverish efforts to obtain at least birth certificates from the country that denationalized them was a very exact symbol; one of their problems was solved when they achieved the degree of distinction that will rescue a man from the huge and nameless crowd. Only fame will eventually answer the repeated complaint of refugees of all social strata that “nobody here knows who I am”; and it is true that the chances of the famous refugee are improved just as a dog with a name has a better chance to survive than a stray dog who is just a dog in general.43
The nation-state, incapable of providing a law for those who had lost the protection of a national government, transferred the whole matter to the police. This was the first time the police in Western Europe had received authority to act on its own, to rule directly over people; in one sphere of public life it was no longer an instrument to carry out and enforce the law, but had become a ruling authority independent of government and ministries.44 Its strength and its emancipation from law and government grew in direct proportion to the influx of refugees. The greater the ratio of stateless and potentially stateless to the population at large—in prewar France it had reached 10 per cent of the total—the greater the danger of a gradual transformation into a police state.
It goes without saying that the totalitarian regimes, where the police had risen to the peak of power, were especially eager to consolidate this power through the domination over vast groups of people, who, regardless of any offenses committed by individuals, found themselves anyway beyond the pale of the law. In Nazi Germany, the Nuremberg Laws with their distinction between Reich citizens (full citizens) and nationals (second-class citizens without political rights) had paved the way for a development in which eventually all nationals of “alien blood” could lose their nationality by official decree; only the outbreak of the war prevented a corresponding legislation, which had been prepared in detail.44a On the other hand, the increasing groups of stateless in the nontotalitarian countries led to a form of lawlessness, organized by the police, which practically resulted in a co-ordination of the free world with the legislation of the totalitarian countries. That concentration camps were ultimately provided for the same groups in all countries, even though there were considerable differences in the treatment of their inmates, was all the more characteristic as the selection of the groups was left exclusively to the initiative of the totalitarian regimes: if the Nazis put a person in a concentration camp and if he made a successful escape, say, to Holland, the Dutch would put him in an internment camp. Thus, long before the outbreak of the war the police in a number of Western countries, under the pretext of “national security,” had on their own initiative established close connections with the Gestapo and the GPU, so that one might say there existed an independent foreign policy of the police. This police-directed foreign policy functioned quite independently of the official governments; the relations between the Gestapo and the French police were never more cordial than at the time of Leon Blum’s popular-front government, which was guided by a decidedly anti-German policy. Contrary to the governments, the various police organizations were never overburdened with “prejudices” against any totalitarian regime; the information and denunciations received from GPU agents were just as welcome to them as those from Fascist or Gestapo agents. They knew about the eminent role of the police apparatus in all totalitarian regimes, they knew about its elevated social status and political importance, and they never bothered to conceal their sympathies. That the Nazis eventually met with so disgracefully little resistance from the police in the countries they occupied, and that they were able to organize terror as much as they did with the assistance of these local police forces, was due at least in part to the powerful position which the police had achieved over the years in their unrestricted and arbitrary domination of stateless and refugees.
Both in the history of the “nation of minorities” and in the formation of a stateless people, Jews have played a significant role. They were at the head of the so-called minority movement because of their great need for protection (matched only by the need of the Armenians) and their excellent international connections, but above all because they formed a majority in no country and therefore could be regarded as the minorité par excellence, i.e., the only minority whose interests could be defended only by internationally guaranteed protection.45
The special needs of the Jewish people were the best possible pretext for denying that the Treaties were a compromise between the new nations’ tendency forcefully to assimilate alien peoples and nationalities who for reasons of expediency could not be granted the right to national self-determination.
A similar incident made the Jews prominent in the discussion of the refugee and statelessness problem. The first Heimatlose or apatrides, as they were created by the Peace Treaties, were for the most part Jews who came from the succession states and were unable or unwilling to place themselves under the new minority protection of their homelands. Not until Germany forced German Jewry into emigration and statelessness did they form a very considerable portion of the stateless people. But in the years following Hitler’s successful persecution of German Jews all the minority countries began to think in terms of expatri
ating their minorities, and it was only natural that they should start with the minorité par excellence, the only nationality that actually had no other protection than a minority system which by now had become a mockery.
The notion that statelessness is primarily a Jewish problem46 was a pretext used by all governments who tried to settle the problem by ignoring it. None of the statesmen was aware that Hitler’s solution of the Jewish problem, first to reduce the German Jews to a nonrecognized minority in Germany, then to drive them as stateless people across the borders, and finally to gather them back from everywhere in order to ship them to extermination camps, was an eloquent demonstration to the rest of the world how really to “liquidate” all problems concerning minorities and stateless. After the war it turned out that the Jewish question, which was considered the only insoluble one, was indeed solved—namely, by means of a colonized and then conquered territory—but this solved neither the problem of the minorities nor the stateless. On the contrary, like virtually all other events of our century, the solution of the Jewish question merely produced a new category of refugees, the Arabs, thereby increasing the number of the stateless and rightless by another 700,000 to 800,000 people. And what happened in Palestine within the smallest territory and in terms of hundreds of thousands was then repeated in India on a large scale involving many millions of people. Since the Peace Treaties of 1919 and 1920 thé refugees and the stateless have attached themselves like a curse to all the newly established states on earth which were created in the image of the nation-state.
For these new states this curse bears the germs of a deadly sickness. For the nation-state cannot exist once its principle of equality before the law has broken down. Without this legal equality, which originally was destined to replace the older laws and orders of the feudal society, the nation dissolves into an anarchic mass of over- and underprivileged individuals. Laws that are not equal for all revert to rights and privileges, something contradictory to the very nature of nation-states. The clearer the proof of their inability to treat stateless people as legal persons and the greater the extension of arbitrary rule by police decree, the more difficult it is for states to resist the temptation to deprive all citizens of legal status and rule them with an omnipotent police.
II: The Perplexities of the Rights of Man
THE DECLARATION of the Rights of Man at the end of the eighteenth century was a turning point in history. It meant nothing more nor less than that from then on Man, and not God’s command or the customs of history, should be the source of Law. Independent of the privileges which history had bestowed upon certain strata of society or certain nations, the declaration indicated man’s emancipation from all tutelage and announced that he had now come of age.
Beyond this, there was another implication of which the framers of the declaration were only half aware. The proclamation of human rights was also meant to be a much-needed protection in the new era where individuals were no longer secure in the estates to which they were born or sure of their equality before God as Christians. In other words, in the new secularized and emancipated society, men were no longer sure of these social and human rights which until then had been outside the political order and guaranteed not by government and constitution, but by social, spiritual, and religious forces. Therefore throughout the nineteenth century, the consensus of opinion was that human rights had to be invoked whenever individuals needed protection against the new sovereignty of the state and the new arbitrariness of society.
Since the Rights of Man were proclaimed to be “inalienable,” irreducible to and undeducible from other rights or laws, no authority was invoked for their establishment; Man himself was their source as well as their ultimate goal. No special law, moreover, was deemed necessary to protect them because all laws were supposed to rest upon them. Man appeared as the only sovereign in matters of law as the people was proclaimed the only sovereign in matters of government. The people’s sovereignty (different from that of the prince) was not proclaimed by the grace of God but in the name of Man, so that it seemed only natural that the “inalienable” rights of man would find their guarantee and become an inalienable part of the right of the people to sovereign self-government.
In other words, man had hardly appeared as a completely emancipated, completely isolated being who carried his dignity within himself without reference to some larger encompassing order, when he disappeared again into a member of a people. From the beginning the paradox involved in the declaration of inalienable human rights was that it reckoned with an “abstract” human being who seemed to exist nowhere, for even savages lived in some kind of a social order. If a tribal or other “backward” community did not enjoy human rights, it was obviously because as a whole it had not yet reached that stage of civilization, the stage of popular and national sovereignty, but was oppressed by foreign or native despots. The whole question of human rights, therefore, was quickly and inextricably blended with the question of national emancipation; only the emancipated sovereignty of the people, of one’s own people, seemed to be able to insure them. As mankind, since the French Revolution, was conceived in the image of a family of nations, it gradually became self-evident that the people, and not the individual, was the image of man.
The full implication of this identification of the rights of man with the rights of peoples in the European nation-state system came to light only when a growing number of people and peoples suddenly appeared whose elementary rights were as little safeguarded by the ordinary functioning of nation-states in the middle of Europe as they would have been in the heart of Africa. The Rights of Man, after all, had been defined as “inalienable” because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them. Or when, as in the case of the minorities, an international body arrogated to itself a nongovernmental authority, its failure was apparent even before its measures were fully realized; not only were the governments more or less openly opposed to this encroachment on their sovereignty, but the concerned nationalities themselves did not recognize a nonnational guarantee, mistrusted everything which was not clear-cut support of their “national” (as opposed to their mere “linguistic, religious, and ethnic”) rights, and preferred either, like the Germans or Hungarians, to turn to the protection of the “national” mother country, or, like the Jews, to some kind of interterritorial solidarity.47
The stateless people were as convinced as the minorities that loss of national rights was identical with loss of human rights, that the former inevitably entailed the latter. The more they were excluded from right in any form, the more they tended to look for a reintegration into a national, into their own national community. The Russian refugees were only the first to insist on their nationality and to defend themselves furiously against attempts to lump them together with other stateless people. Since them, not a single group of refugees or Displaced Persons has failed to develop a fierce, violent group consciousness and to clamor for rights as—and only as—Poles or Jews or Germans, etc.
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, showed 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. Neither before nor after the second World War have the victims themselves ever invoked these fundamental rights, which were so evidently denied them, in their many attempts to find
a way out of the barbed-wire labyrinth into which events had driven them. On the contrary, the victims shared the disdain and indifference of the powers that be for any attempt of the marginal societies to enforce human rights in any elementary or general sense.
The failure of all responsible persons to meet the calamity of an ever-growing body of people forced to live outside the scope of all tangible law with the proclamation of a new bill of rights was certainly not due to ill will. Never before had the Rights of Man, solemnly proclaimed by the French and the American revolutions as the new fundament for civilized societies, been a practical political issue. During the nineteenth century, these rights had been invoked in a rather perfunctory way, to defend individuals against the increasing power of the state and to mitigate the new social insecurity caused by the industrial revolution. Then the meaning of human rights acquired a new connotation: they became the standard slogan of the protectors of the underprivileged, a kind of additional law, a right of exception necessary for those who had nothing better to fall back upon.
The Origins of Totalitarianism Page 43
