Frontier Justice

by Andy Lamey

  If a refugee is often running from events that are literally incredible, the challenges he faces in escaping can be, by contrast, all too banal. Recall that when Arendt and her mother left Germany, they had no travel documents. This wasn’t because they were absent-minded, or left in a hurry. It was because they faced the same dilemma anyone does who flees persecution by her own government. If the authorities are out to kill you, they are unlikely to process your passport application. (Even travelling to a foreign consulate to obtain a visa can sometimes be impossible: governments have been known to kill dissidents who make public a desire to flee abroad.) Today, legitimate asylum-seekers who cross borders by land often still arrive without papers. And with the rise of the jet age, when air travel without identification is next to impossible, it has also become common for genuine refugees to reach the safety of the West by travelling on fake passports.

  Then there is the question of why Arendt and her family did not seek asylum in Switzerland or some other nearby country, but continued on to France. Beginning in 1933 and for several years afterwards, Switzerland did admit refugees, but always on the understanding that, as with Arendt, they were merely passing through and would not seek asylum in Switzerland itself. As time wore on, however, and the situation of German Jews worsened, Swiss officials became increasingly concerned that Switzerland not be, in the words of a Swiss police official, “saturated with Jews.” So in 1938 the Swiss government sealed its borders and, when thousands of desperate refugees arrived, forcibly returned them to the Nazis.

  In the context of the 1930s, Switzerland’s policies were unremarkable. We do not like to think about it now, but during the Great Depression anti-Semitism was not confined to Nazi Germany. All Western countries eventually closed their doors to Jewish refugees. This was the main reason so many at first fled to France. As the historian Vicki Caron notes, geographic proximity to Germany and other factors certainly played a role in France’s refugee influx. “Most important, however, was the fact that France had not yet implemented immigration restrictions, in sharp contrast to Great Britain or the United States.”

  If we can be grateful that Western states are no longer in the grip of an anti-Semitic conspiracy, the situation of France in 1933 nonetheless illustrates an enduring aspect of refugee politics, namely that the number of asylum-seekers a country receives is influenced by the policies of other refugee-receiving states. Many commentators on refugee issues, not to mention government policy-makers, have a tendency to focus on their own country in isolation. This can cause them to overlook the full range of factors that do and do not bring asylum-seekers to their shores. There have been situations, for example, where one country has deliberately made its asylum program less welcoming in the hope of attracting fewer refugee claimants, only to see the number of applications go up instead—because neighbouring countries have simultaneously made their own policies even harsher. Rather than solve any problems, the result is a race to the bottom that puts the needs of refugees at risk.

  Finally, the refugee debate that took place in France can teach us something. On the one side there were those such as the French police officer who wrote in 1933 that German Jews “will soon constitute groups of discontented and violent exiles: veritable ghettos from the moral point of view, as well as the point of view of hygiene!” Today we recoil from the prejudice in this remark, and read with relief the words of those who spoke out for refugees. A typical representative was the minister of the French government who told the chamber of deputies that it was “an honour for our nation to remain loyal to the generous tradition of hospitality on which it has always prided itself.” And yet, as fundamentally opposed as these viewpoints were, they also had something in common.

  To suggest that the presence of Jews or any other foreigners represents a menace at the level of “hygiene” is to see them as a form of contamination. France will be infected by their presence. But note that a similar standard is employed—albeit in a much more humane way—in the suggestion that France will fail to live up to its “generous tradition of hospitality.” Only this time, France will be damaged by not welcoming refugees. Extending back to the French Revolution and beyond, France had long seen itself as a great and magnanimous nation that took in political exiles in times of need. If France does not live up to this tradition in regard to German refugees, the politician was arguing, it will in a way fail to be itself, cease to be truly French.

  In short, both sides in France’s refugee debate invoked a vision of national identity. This is especially worth recalling today, when refugees have become subjects of international law, and there is a tendency to approach refugee issues in dry, legalistic terms. Make no mistake, international refugee conventions are an important development since Arendt’s time. But laws do not interpret themselves, and different countries have implemented the same treaty in very different ways. To understand these differences, we need to broaden our focus beyond the law and take into account issues of national self-understanding. As we will see, refugee debates in many countries hinge not only on the question, How should we treat these strangers who need our help? All too often, they hinge on a much more emotional question. Who are we?

  These are only some of the lessons we can learn by looking back at one of the worst refugee crises of all time. But there is another lesson, the one Arendt herself drew. It was contained in The Origins of Totalitarianism, the 1951 book that made Arendt’s name. Origins was Arendt’s attempt to comprehend the central political events of her lifetime, notably the rise of fascism and Stalinism, which Arendt considered philosophically indistinguishable. The book ranges over many other topics, however, and includes a chapter that may be the most widely read essay on refugees ever published.

  Arendt wrote of the unprecedented refugee crisis Europe experienced in the aftermath of World War I, a time when many international borders were being redrawn. In the nineteenth century, eastern and central Europe had been dominated by four imperial dynasties that ruled over many different nationalities and language groups: the Hapsburgs of Austria-Hungary, the Romanovs of Russia, the Ottomans of Turkey and the Hohenzollerns of Prussia. World War I caused all four empires to implode and be replaced by states that, most often, embodied the aspirations of a particular nationality. Parts of the Austro-Hungarian Empire, for example, were divided into the new states of Hungary and Austria. Latvia, Estonia and Lithuania similarly achieved independence from Russia. Poland, which had been partitioned by Prussia, Austria-Hungary and Russia, became an independent nation for the first time since 1795.

  Many of the new countries’ borders were finalized only after warfare with their neighbours. But even when new states did not engage in protracted fighting, they saw enormous flows of people cross their frontiers; ethnic Germans who had lived in Poland and elsewhere poured into Germany, Bulgarians went to Bulgaria, Hungarians to Hungary and so on. To get a sense of the enormous numbers of refugees travelling in all directions, we need only recall that 320,000 Armenians had fled to Europe (and the Middle East) to escape the Turkish genocide, just as hundreds of thousands of Jews were simultaneously driven out of eastern Europe by a wave of pogroms—and all this occurred while a million people were fleeing the Russian Revolution and millions more were displaced by the Great War itself.

  Arendt noted that many asylum-seekers from this period received the same treatment as did refugees of her generation. A large number were denied entry to countries they attempted to enter, while others were forcibly expelled. The new democracy of Hungary, for example, sealed its borders so tightly that hundreds of people were trapped for months, and in some cases years, inside the train stations where they arrived. The United States and Canada introduced highly restrictive immigration policies, choking off an important avenue of escape. Even when refugees did make it across a border, they were often unable to obtain work or residency papers, and so lived a precarious existence made up in equal parts of poverty and fear of deportation. Many were herded into camps, much like Arendt had bee
n, where dysentery and cholera were a constant menace. The result was that, according to one estimate, in 1926 there were still 9.5 million refugees stranded across Europe.

  Arendt pointed out what a new phenomenon this was. Before World War I, refugees numbered in the thousands, not the millions. The rise of nationalism was a major contributing factor to the appearance of refugees in massive numbers. Eastern and Central Europe’s division into nation-states was the culmination of a long process that had begun over a century before, according to which Europeans saw themselves not as members of villages, cities or estates, but nations. Nationalist logic says everyone should speak the same language and observe the same customs. This new thinking not only drove millions of people from their homes but it meant that if they sought refuge in another state, unless it was one that housed their own national culture, they could expect to find themselves again unwelcome—and sometimes even people who did share the culture of the majority were still turned away.

  Yet Arendt’s purpose in recalling Europe’s first mass refugee crisis was not merely to offer a historical discussion. Indeed, her essay eventually leaves history behind and soars into the realm of philosophy. Because for Arendt, what the experience of refugees ultimately showed was the impossibility of human rights.

  Arendt drew a common distinction between the rights of citizens and the rights of human beings as such. As citizens, we are entitled to the protection of our own government. A refugee is someone who loses that protection and all the entitlements that go with it. When such people show up at the border of a new country, they cannot assert the same rights as people who live there, such as the automatic right of entry. All refugees can appeal to is their sheer humanity, and the moral claims that are supposed to extend from it.

  But in practice, Arendt bitterly pointed out, simply being a human being entitled refugees to nothing. Between the wars, even when refugees were not turned away at a border, or interned in camps where they died of disease, or driven to such despair that they took their own lives; even when refugees received enough scraps of charity to simply stay alive, they lived in a state of rightlessness. There was little they could do on their own behalf except keep running, until they found some country that would absorb them. But those sorts of decisions—to admit refugees, to let them work, to effectively treat them like citizens—were not decisions refugees themselves had any influence over. What decent treatment refugees did receive was due to acts of pity extended at the discretion of receiving states. Refugee “rights” never entered into it.

  This was the case even in countries that had inscribed in law the principle of human rights. Since the eighteenth century, intellectuals and politicians such as Thomas Jefferson and the Marquis de Lafayette, representatives of the American and French revolutions respectively, had proclaimed their belief in the Rights of Man, as human rights were first called. This is the view that “every man is born with inalienable and indefeasible rights,” as Lafayette put it. Yet even in wealthy advanced nations where this idea was the foundation of the legal system, there were no rights for refugees. As Arendt scathingly remarked, “The Rights of Man, supposedly inalienable, proved to be unenforceable—even in countries whose constitutions were based on them—whenever people appeared who were no longer citizens of any sovereign state.”

  The conclusion Arendt ultimately drew concerned the nature of rights. Rights, she argued, are not something we obtain simply by being born. Rather, we acquire rights through our membership in a political community. In the modern world, this means being a member of a sovereign state. And despite the rhetoric of “universal human rights,” states do not equally uphold the rights of every human being on earth. Rather, they grant overwhelming priority to enforcing the rights of their own citizens. Refugees are human beings who are in essence citizens of nowhere. Which is to say, they are human beings with no rights worth speaking of.

  Arendt summed up her view in a famous passage in which she says the very idea of human rights is nothing more than an abstraction:

  The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships—except that they were still human. The world found nothing sacred in the abstract nakedness of being human.… [Refugees knew] that the abstract nakedness of being human was their greatest danger.

  Today, when human rights have become the moral currency of our time, passages such as this can be hard to read. But to understand how Arendt could lash out at the idea of human rights, I would point to her own experience as a refugee. Perhaps more than anything, Arendt’s attack on human rights was an attack on the hypocrisy she saw everywhere around her. France and other countries proclaimed their belief in human rights—not rights for citizens, or Frenchmen, or Christians, but rights for human beings—at the same time as she and countless other refugees were treated with contempt. The ultimate explanation of the interwar crisis of asylum, Arendt concluded, was the simple fact that the world is divided into states. In a political universe founded on national sovereignty, truly universal human rights are an impossibility. The refugee turned away at the border of a liberal state is the human embodiment of this philosophical contradiction. In Arendt’s words, “It was a problem not of space but of political organization.”

  As this sentence is written, the world is again grappling with the issue of asylum. Debates over refugee issues, often acrimonious, have become a part of political life in many Western countries. Australia triggered an international incident in 2001 when it forbade a Norwegian freighter carrying several hundred asylum-seekers from landing on its shores. Even before the September 11 massacre, the United States became so concerned about terrorists posing as refugees that it introduced a sweeping asylum reform, one so restrictive that one observer has said it “essentially wipes out asylum as we know it.” In 1993 Germany took the extraordinary step of amending its constitution to reduce the number of refugee applications it receives. Across Europe, the flip side of European nations’ opening their borders to each other has been an unwelcoming attitude toward everyone else, to the point that refugee advocates now refer to Fortress Europe. Twice in recent years concerns over refugee flows have contributed to military action. The 1999 intervention of the North Atlantic Treaty Organization in Kosovo was partly motivated by the desire of nearby states to avoid an influx of displaced Kosovars. Following a coup in Haiti, U.S. President Bill Clinton gave as a reason for the 1994 invasion that restored Jean-Bertrand Aristide to power the need “to secure our borders.”

  It was not supposed to be this way. In the aftermath of World War II, when Europe was once again awash with displaced people, the United Nations introduced two measures to deal with refugees. One was the 1951 Convention Relating to the Status of Refugees, or the Refugee Convention for short, which defined a refugee as someone with “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” By signing it, Western countries pledged not to return a genuine refugee to danger. The UN also established a High Commissioner for Refugees, the UNHCR, an office that would provide direct assistance to displaced people around the world.

  Both the Refugee Convention and the High Commission have proven to be indispensable innovations. In hindsight, however, they seemed most successful during the Cold War. Not only was this a time when the global refugee population was comparatively small, falling from 15 million in the late 1940s to 2.9 million by 1975, but the defining asylum-seekers of this period were defectors from the Soviet bloc. Defectors often received a welcome reception in the West, partly out of genuine humanitarian concern, but also because Western governments wanted to score a PR victory in the struggle against communism.

  Just how powerful this combination of motives could be was evident during the Hungarian crisis of 1956, when the Soviet Union supp
ressed a democratic revolution in its Eastern European satellite. By sheer coincidence, the Hungarian government had cleared the barbed wire and land mines along its border with neutral Austria a mere three weeks earlier. As a result, 180,000 Hungarians were able to escape, a figure that, when combined with the 20,000 more who went to Yugoslavia, represented 2 percent of the total Hungarian population. UNHCR, working closely with Western governments, quickly coordinated one of the most successful refugee operations of all time. Unlike the lingering refugee crises that lasted for years after both world wars, more than 150,000 Hungarians were granted permanent asylum in thirty-five Western countries within six months, an incredible achievement.

  In the late 1970s, however, the international refugee situation began to change. Their numbers started to climb again, to the point that in 2009 there were over 11 million. If we add people displaced within their own country and similar groups who also receive aid from to the United Nations High Commissioner for Refugees, the total rises to 31 million. This is down from 1992, when the global population of displaced people was even higher, but clearly refugees are an enduring fact of political life. The late 1950s to the late 1970s seem the exception in a ninety-year period that has seen Western countries grappling with one major refugee crisis or another since the World War I events described by Arendt.

  But it is not just that there are more refugees today than there were thirty years ago. The increase in sheer numbers has coincided with what has been called “the globalization of asylum.” The spread across the developing world of airports and cheaper air travel has made it increasingly easy for people fleeing civil strife and persecution in places like Sri Lanka, Iraq, Afghanistan and Somalia to reach Europe and North America. In the early 1970s, the total number of asylum claims made in Western European countries never averaged more than 13,000. In the year 2000, the same countries received 412,700 asylum applications. This has given rise to a widespread concern across Western countries that they are or will shortly be inundated by people from the Third World filing asylum claims not to escape persecution, but to move to a country with a higher standard of living. In response, rich nations have introduced a host of measures aimed at making it difficult to claim asylum. Airlines and shipping companies are fined when they transport people without proper documents. Residents of poor countries increasingly require visas to travel to rich ones, and must pass inspection with migration officers posted in overseas airports. Even if they do make it to a Western country, asylum-seekers are often denied work or detained. That is, when they are not summarily expelled at the border or sent back on the next flight.