by Andy Lamey
These considerations suggest that a right to asylum is not the most effective means by which to help refugees. It does not follow, however, that we should reject the idea of constitutional rights for refugees. Taking some decisions out of the hands of elected officials is a time-honoured and effective way of increasing the likelihood that rights claims will be respected. What the evidence to date suggests, though, is that what refugees need most is not the right to asylum in any particular state, but the constitutional right to have proper procedures used when their claims are being decided. Procedures, that is, that would decrease the likelihood of well-founded claims failing to be recognized. That would in turn reduce the possibility of refugees being returned to danger.
Such at least is the basis of the framework of refugee rights I will shortly defend. Not everyone, however, would agree that what refugees seeking asylum need is another set of constitutional rights. Before putting forward my proposal, therefore, it is necessary to see how other observers have responded to the Arendtian refugee dilemma. As we are about to see, those responses include the suggestion that there is no solution at all.
SIX
AN ASYLUM MADE OF THOUGHTS
IT WAS DURING A VISIT to hell that Samantha Power heard the voice of Hannah Arendt. It was the summer of 2004, and Power was a Harvard University professor and author of a Pulitzer Prize–winning book about the United States’ failure to respond to genocides during the twentieth century. Now Power had come to northern Chad, near the African nation’s border with Sudan, to document the first mass slaughter of the new millennium. According to conservative estimates, fifty thousand people had by then been killed in Darfur, Sudan’s western region, a figure that would rise after Power’s visit. More than two million people had also been ethnically cleansed from their homes, creating a mass exodus of Darfuris into makeshift camps in Chad. As Power went about interviewing refugees living in mud huts, listening to why they had come to such a desolate and forsaken place, she began to hear, she says, “Arendt’s voice inside my head, either whispering or bellowing loudly.”
Power’s study of genocide begins with the Armenians, whom Turkish authorities targeted for mass murder during World War I. A key element of the Armenian genocide was the forced deportation of entire villages, conducted by Turkish soldiers on horseback. In Darfur, it was as if the killers were trying to emulate this legacy. The killings were conducted not by uniformed Sudanese soldiers but by a government-supported militia known as the Janjaweed, an Arabic word that loosely means “evil horseman.” Like the Turks before them, the perpetrators in Sudan singled out their female victims for systematic sexual abuse, raping thousands, even hundreds of thousands, of women. But the Janjaweed did not stop there. They took the trouble to brand their victims. In Sudan’s traditional Muslim society, which emphasizes a woman’s sexual purity, branding the survivors stigmatized them as sexually defiled, and so ensured their status as permanent outcasts.
As one Darfuri woman after another pointed to the scar on her leg, explaining how she came to have it and what it meant, Power reeled at what she was hearing. This can’t be, she thought. Persecution on this scale can’t exist. It was a perfectly natural reaction. But Power knew from reading Arendt that this normal response to atrocity was actually part of the problem. Such events so defy comprehension that they can cause outside observers to hesitate to respond, until it is too late.
“That’s one major lesson I take with me from Arendt’s writing,” Power says. “When [traumatized] refugees tell you stories about what they’ve gone through, they may get a detail wrong here and there, but when they tell you these horrific tales, do not think just because it sounds too awful to be true that it is. The ‘evildoers,’ or aggressors, will forever come up with new ways to surprise, new ways to exceed the powers of our imaginations.”
Power’s experience in Chad testifies to the enduring relevance of Arendt’s work. Many writers who grapple with refugee and human rights issues still hear Hannah Arendt’s voice “whispering or bellowing loudly” inside their heads, and seek to respond to that at times disturbing voice. Thinkers who fall into this category are hard to pigeonhole for several reasons, not least because they occupy more than one point on the Left–Right political spectrum. Nevertheless, it is possible to divide contemporary writers who respond to Arendt’s critique of human rights into two broad groups.
The first are those, like Power, whom we might think of as pragmatists. Pragmatists tend to eschew grand investigations into the nature of sovereignty or rights, and focus instead on concrete steps we can take to improve the plight of refugees, whose situation Arendt took to illustrate the impossibility of human rights. In contrast to this group are writers who respond to Arendt at a more abstract level, whom we can call the philosophers. Philosophers point out that Arendt took the plight of refugees to show the impossibility of reconciling human rights with national sovereignty, and they go on to rethink either rights or sovereignty in order to overcome the dilemma. Their responses to Arendt therefore tend to be more high-flown and conceptual than those put forward by pragmatists.
If we want to find out whether enforceable rights can be rooted in humanity rather than citizenship, we will gain much by noting what pragmatists and philosophers have said in reply to Arendt. A solution may have been found to the problem Arendt left us with regarding human rights, and what we may need to do is act on a proposal already in circulation. Alternatively, no solution may have in fact been found, and seeing why this is the case will help us recognize what a real solution might look like. Either way, familiarity with the ongoing debate around Arendt’s critique of human rights will be of benefit in making those rights more meaningful.
As we are about to see, however, there is a third option in play in the debate around Arendt. That is to give up on human rights as a desirable or even coherent concept. And so our examination starts with a philosopher who recommends that we abandon one of the central moral notions of our time and go “beyond human rights.”
Giorgio Agamben is an Italian academic who splits his time between universities in Paris and Venice. Born in 1942, Agamben spent the early part of his career writing on issues related to language and literature before gradually turning to politics. In recent years he has gained a wide audience in North America, where he has often taught, but interest in his work is even stronger in Europe, where his public lectures fill theatres and articles by or about him appear frequently in the press. “With his collarless shirts and dark suits, he comes across like something of a cleric,” a German newspaper writer once remarked of Agamben, and the image of him as a kind of prophet is a fitting one. Like all true prophets, Agamben has an otherworldly vision that seeks to transcend the fallen world around him. Nowhere is this more evident than in his scathing view of the modern state, which he considers fundamentally incapable of respecting the moral worth of human beings.
To appreciate Agamben’s skeptical view of government, we should recall events in his native Italy in the 1960s and ’70s, when the country was racked by extremist violence carried out by both the Right and the Left. The most well-known incident occurred in Rome in 1978, where the car of former Italian prime minister Aldo Moro was stopped by a dozen men wearing Alitalia airline uniforms. They turned out to be members of the Red Brigades, an ultra-leftist cell. After shooting five of Moro’s bodyguards, the Brigades abducted Moro himself and kept him in captivity for two months. Eventually Moro was assassinated and his body found in an abandoned car.
In response to this and similar events, Italian politicians became consumed with combating terrorism. While few observers objected to such a goal, the measures the authorities employed were extreme. They included mass arrests, detention without trial and, more than once, firing into crowds of unarmed demonstrators. As one Italian politician later put it, “The battle [against terrorism] completely absorbed us, so we did not see all the rest with the necessary clarity.” Historians have long debated why the Italian government acted with suc
h ferocity during Italy’s so-called Years of Lead. One factor that is often cited is the popularity of the Italian Communist Party, which was on the verge of joining a government coalition and so went to great lengths to establish its anti-extremist credentials. As historian Paul Ginsborg puts it, the influential party, “instead of championing civil-rights issues, rapidly became a most zealous defender of traditional law and order measures.”
Against this backdrop, it is not hard to see how an Italian of Agamben’s generation could wind up with a pessimistic view of government. However, the main reason to recall Italy’s years of upheaval is because they provide an example of a Western state committing major human rights infractions. This is a subject Agamben’s writings frequently seek to explain. How is it that representatives of liberal-democratic states come to detain thousands of people without trial, or open fire on crowds of civilians? In Agamben’s view, Ginsborg and other historians who explain such events by focusing on the decisions of particular actors, whether they be political parties, terrorist groups or individual politicians, are making a fundamental mistake. For the real cause of state crimes is the nature of sovereignty itself.
Agamben often quotes a remark by a previous philosopher that summarizes his own view of government: the sovereign is he who decides on the state of exception. In other words, a key function of political power is not only deciding what the rules will be but to whom they will apply. Agamben’s writings illustrate this idea with many learned historical examples, stretching as far back as ancient Rome, of political authorities suspending the law’s normal operation. A modern case Agamben often refers to is that of 1930s Germany. When the Nazis came to power they declared a state of emergency that suspended the German constitution. “The decree was never repealed,” Agamben notes, “so that from a [legal] standpoint, the entire Third Reich can be considered a state of exception that lasted twelve years.” Other nations may not commit atrocities on the scale of the Nazis, but they have also exercised their capacity to declare states of exception in disturbing ways. Between World War I and the Depression, Agamben points out, France, Belgium and other Western states engaged in acts of mass “denationalization,” stripping thousands of people of their citizenship on the grounds that they were of “enemy” origins or “unworthy of Italian citizenship,” as Mussolini’s regime put it.
Agamben uses a Latin phrase to identify people who are placed beyond the law’s reach this way: homo sacer. This idiosyncratic term of art (which is pronounced “homo soccer” and means “sacred man” or “cursed man”) refers to an obscure figure of Roman law, one whose significance has long been debated. According to sources Agamben draws on, homo sacer was a legal category during Rome’s early period, when secular and sacred law overlapped, and certain crimes were punishable by sacrificing the perpetrator to the relevant god. (Someone who struck his father, for example, would be offered up to the gods of parents.) A cursed man was similar to this category of criminal, in that he too had been condemned for committing a crime. The difference was that a cursed man could not be officially sacrificed. Instead, anyone who took it upon himself to kill an accursed person would not be deemed to have committed murder. There was thus something paradoxical about the position of the cursed. The authorities would not execute them, yet at the same time, they could be killed with impunity. They were excluded from human jurisdiction, but did not receive any protection from the gods to whom they belonged. As Agamben sums it up, they were “truly sacred, in the sense that this term had in archaic Roman law: destined to die.”
For Agamben, the story of modern politics is the story of increasing numbers of individuals reduced to such a disposable state, people whom the authorities can be bothered neither to execute nor to protect. The group Agamben most often uses as an example of this phenomenon is refugees: Arendt and other Germans rounded up in the Velodrome in 1930s France; thousands of Albanians in Italy herded into a stadium in 1991 where they lived on bread and water; individual asylum claimants trapped in the international zones of European airports, where they can be held for days without access to a lawyer and potentially returned to danger. All of these cases, Agamben writes, create modern equivalents of homo sacer. All involve situations “in which the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign.”
We can easily imagine someone responding to the scenarios Agamben describes by saying that we need to do a better job protecting the rights of the refugees involved. What makes Agamben a unique voice, however, is that in his view this common-sense reaction is itself part of the problem. This side of his thinking is evident in his attitude toward human rights, which is just as skeptical as his attitude toward governments. Agamben’s thinking is strongly influenced by Arendt, and he agrees with her that refugees point up a deep tension in the concept of human rights. As he puts it, “The paradox from which Arendt departs is that the very figure who should have embodied the rights of man par excellence—the refugee—signals instead the concept’s radical crisis.” Unlike Arendt, however, Agamben does not depict human rights as merely an ineffective concept. He sees it as a counterproductive, even sinister notion.
Agamben argues that the chief effect of human rights has been a dangerous expansion of state power. He points to milestones in the rise of rights, such as the French Revolution’s Declaration of the Rights of Man and the Citizen. Before that time, the kings who ruled France made no pretense of upholding the rights of their subjects. If people lived in grinding poverty or died during childbirth, that was a matter of royal indifference. At first glance, few arrangements may sound less appealing. But precisely because the state took so little interest in the welfare of its people, questions of who was French and who was not had no significance at the state level. So long as foreigners respected the authority of the king, little notice was taken of their activities. With the rise of the idea of rights, however, states have been invested with the responsibility of guaranteeing the rights of their people. A consequence of this shift is that governments have become increasingly concerned with questions such as “Who is French?” or “Who is Italian?” By answering such questions in narrow or exclusionary terms, states can recognize the rights not of universal humanity, but merely those of their own citizens.
For Agamben, the expansion of government authority to meet the needs of our biology—our rights to food, shelter, health—has been a historical disaster. Just how disastrous can be seen in one of the many eyebrow-raising passages in which he draws a connection between the doctrine of human rights and the ideology of the Third Reich. “Fascism and Nazism,” Agamben writes, “are, above all, redefinitions of the relations between man and citizen, and become fully intelligible only when situated—no matter how paradoxical it may seem—in the biopolitical context inaugurated by national sovereignty and declarations of rights.” In Agamben’s view, a dark thread connects the rise of governments founded on rights in the eighteenth century to the Nazis. In both cases national identity is a political question, and the state is preoccupied with determining who belongs to the community. That one regime gives a far more extreme answer than the others is a difference of degree, not of kind.
Agamben’s suspicion of government was on display in 2004, when he made headlines after cancelling a visiting professorship at New York University. Agamben cancelled his stay to protest a new U.S. policy of fingerprinting international travellers. “By applying these techniques and these devices invented for the dangerous classes to a citizen,” the New York Times quoted him as saying, “[governments] have made the person the ideal suspect, to the point that it’s humanity itself that has become the dangerous class.” Whatever the drawbacks of political life before the French Revolution, there was no all-powerful state that could track and record our every movement. For Agamben, surrendering biometric information to such states today crosses a dangerous threshold in the loss of our freedom.
In North America, the argument that a government intrusive enough to satisfy every need of its people will face a totalitarian temptation has usually come from the Right. Such was the theme of the famous 1944 book The Road to Serfdom, by the distinguished critic of socialism Friedrich Hayek. Agamben’s work, by contrast, has been described as exuding “the perfume of the radical.” No doubt this is partly because Agamben, unlike Hayek, is just as scathing on markets as he is on governments. But another reason Agamben has become an icon of the Left rather than the Right would appear to be the way his work can explain the recent history of the United States.
It is often noted of political magazines that they thrive in opposition. The conservative monthly The American Spectator, for example, saw its biggest readership during the Clinton administration, while the Iraq War resulted in a sharp circulation increase for The Nation, a left-wing weekly. Something similar seems to happen with political theorists. In Agamben’s case, his rise to prominence occurred during the War on Terror. Many academic critics of the U.S. government’s response to September 11 used Agamben’s concept of homo sacer to explain the legal limbo in which so-called enemy combatants were detained at Guantánamo. Similarly, Agamben himself has characterized the 2001 Patriot Act, and the sweeping emergency powers it granted the U.S. government in the name of counterterrorism, as yet another state of exception instituted by a sovereign.
