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Rightlessness

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Looking within the internal European context, we could say that civic stratification was given more immediate impetus in the uprooting, removal and deportation of populations, especially across Central and Eastern Europe, in the late nineteenth and into the early twentieth centuries. This was done to create ethnically homogeneous zones under specific government authority as part of nation-building exercises. The processes by which rights were segmented, stratified and denied in Europe echoed the differentiation of rights under colonialism, and are articulated today as nation-states claim exclusive powers to define citizenship.

In the early twentieth century, men were conscripted and moved all over Europe to train in various national armies, and they were used by nations aligned against each other to protect, and sometimes enlarge, their highly stratified internal national orders. Although commemorated on the medal I inherited from my grandfather as ‘The Great War for Civilisation’, the result was 50 million dead from 1914 to 1919 in World War I. British writers who fought in that war, including Siegfried Sassoon, Robert Graves and Wilfrid Owen, often depicted it as being fought for no greater principles than the national vanities of governments and politicians. The unwilling recruits whom Sassoon wrote of in Memoirs of an Infantry Officer were inducted into a mechanical and inhuman undertaking. ‘What in earlier days had been drafts of volunteers’, he writes, ‘were now droves of victims’.80 Later in his recollections, he describes the purpose of his and other soldiers’ sacrifices as being the upholding of a society of extreme class privilege. As he put it following conversations with Lady Brassey of Chapelwood Manor, Sussex (fictionalized as Lady Asterisk at Nutwood Manor), where he was convalescing: ‘outwardly emotionless, she symbolized the patrician privileges for whose preservation I had chucked bombs at Germans and carelessly offered myself as a target for a sniper’.81 These ‘patrician privileges’ allowed members of higher social classes simply to become officers, with access to recuperation in manor houses in England, while working-class recruits shortened their odds of survival in makeshift hospital tents at the front. Additionally, the 3 million troops from the Commonwealth, including a million from British India, were also enlisted in what was depicted as an imperial cause. They fought on the Western front and they were not given the same food, medicines or remuneration as white soldiers.82

The reinforcing of internal British class divisions through World War I was mirrored by Germany where, as Schmitt commented, ‘to demand seriously of human beings that they kill others and be prepared to die themselves so that trade and industry may flourish for the survivors or that the purchasing power of grandchildren may grow is sinister and crazy’.83 In the same milieu of violence and class rivalry, ethnic and national divisions were changed as the boundaries of European states were continuously redrawn to create several distinct nation-states that were previously under the dominion of various Empires. The interwar period was also a period of mass unemployment, poverty, widespread malnutrition, starvation and economic depression throughout mainland Europe. As Hannah Arendt observed in ‘The Decline of the Nation-State and the End of the Rights of Man’,84 numerous peoples simply either became unwanted ‘minorities’ in these new states or were deprived of all rights because they did not have a nationality that coincided with the state they happened to live in. This provoked another mass exodus of such peoples to other states in which they sometimes had a nationality, but, because they were not born in the territory, they did not have citizenship rights. Only nationals could be citizens, and only citizens could have rights. Within each state, there could be people of varying juridical statuses, and scores without citizenship guarantees. As with many of those caught up in the ‘migration crisis’ in Europe today, there were people who had no human rights in the territories they were born in and, likewise, no rights in the places to which they fled.

For Arendt, the realignment of states following World War I catalysed the problem of human beings who may be refugees, minorities or stateless, but who to one degree or another are without the right to have rights. Those who fell into these categories were victims of the establishment of nation-states, the preconditions for which are ‘homogeneity of population and rootedness in the soil’.85 The problem was that, within the reconfigured boundaries of mid-twentieth-century Europe, the national homogeneity that was the underlying premise of citizenship and hence access to rights, did not prevail, especially in Eastern Europe. In these circumstances, the link between birth and nation could be severed, and rightlessness became public policy applied to specific ethno-national groups. Both Germany and the Soviet Union along with numerous other European countries, de-nationalized and disowned population groups. Most notoriously, German Jews lost all rights of nationality overnight under the Nuremberg Laws of 1935. This became the groundwork for the murder of 6 million Jews by the German state.

One response to this horror was the migration of European Jews to Palestine, followed by the creation of the state of Israel in 1948 out of the British Mandate colonial administration. But, as Arendt notes, this ‘produced a new category of refugee, Arabs, thereby increasing the number of rightless by another 700,000 to 800,000 people’.86 As a Jewish state, Israel established differential citizenship rights according to ethnicity and religion, as have other countries up to the present. In 2019, India’s lower chamber passed a bill that would grant residency and citizenship to non-Muslim migrants only.87 The stripping of citizenship was given great force by the Bush administration policy during the Iraq war by asserting that those they captured were ‘unlawful combatants’ who had no rights under the Geneva Convention. In such a scenario, all means of violent and inhumane practices could be, and were, exercised against them because they were rendered stateless, and, hence, rightless. No international enunciation of the human rights of refugees has been able to affect any of these state actions that, in effect, seal the fate of hundreds of thousands of people as being without the right to have rights.

Under the rubric of the Global War on Terror, several Western liberal states, including Britain, the USA, Australia, the Netherlands and Austria, have taken measures to compel citizens to denationalize. Although ‘the force of Arendt’s “right to have rights” aphorism may seem attenuated, at least with respect to liberal democratic states of the twenty first century’, as Macklin points out, this depends on the ‘right to enter and remain in the state’.88 In 2017, 100 British ISIS fighters were rendered stateless by the UK government as the caliphate succumbed to military defeat.89 Added to this number was the tragic case of the pregnant teenage ISIS bride Shamima Begum, who in 2019 attracted media attention because she was found by a BBC journalist in a refugee camp in Syria. Home Secretary Sajid Javid argued that Ms Begum would not be stateless because she was entitled to Bangladeshi nationality through her parents. Denied both British and Bangladeshi rights, she had to remain in Syria, where her infant child died, largely due to physical conditions in the refugee camp shortly after Javid’s pronouncement. Actions such as these amount to an admission of varied British citizenship categories, because citizens with foreign parents can more easily be stripped of their nationality,90 resulting in the rightlessness of the camp.

Other countries have removed citizenship from their nationals under global counter-terrorism and security legislation. While these instances had internal causes, it is not insignificant that such legislation was globalized by the US and British-led war on terrorism. Bahrain, for example, denationalized almost 1,000 people, including some minors, and part of this was done through mass trials of defendants in absentia. Michelle Bachelet, the Director of the UN HRC, criticized Bahrain for violating the right to a nationality under Article 15 of the UDHR.91 India did the same on a much larger scale to residents of Assam, who had to prove that they had lived in India before the Pakistan civil war of 1971 in which many were forced to flee what is now Bangladesh. In 2019, the final National Registrar of Citizens list determined that 1.9 million people were illegal immigrants subject to detention and deportation. As of August 2019, 1,000 people failing appeals at the Foreigners’ Tribunal have been placed in detention centres, and children separated from parents.92

Arendt speculates that the alternative to refugee status or rightlessness would be to condemn such people to the status of colonial peoples.93 This, however, was not unthinkable, and is the subject of Mark Mazower’s Hitler’s Empire, in which the historian argues that part of Hitler’s plan was to reproduce the colonial relationships Britain had created outside Europe. The Nazis saw little difference between the racial superiority the British used to justify colonialism and their own variant. ‘The mighty British Empire’, Mazower concludes, ‘had long set the bar for German imperialists’,94 and the Führer was a great admirer of British colonialism. Once refugees were present within nation-states, there were three main options, according to Arendt. Firstly, these populations could be assimilated by re-education and citizenship classes, all of which were intended to cause the disappearance of non-national cultural uniqueness. This became necessary for the maintaining of the national cultural homogeneity, and was, incidentally, already a major policy for indigenous peoples in settler colonial states such as Canada, Australia and the USA. Secondly, they could be deported or forced to migrate, and many did go to the Americas, Australia, Palestine and South Africa; or, thirdly, they could be liquidated, which was the choice of the European fascist regimes that took power in the 1930s. By the end of World War II, as Timothy Snyder has documented,95 German forces had killed about 10 million civilians in mass extermination actions, over half of them Jews. Another 3 million Soviet soldiers died of starvation in German prisoner-of-war camps. The Soviet government killed 15 million Soviet civilians, many of whom were national minorities such as Ukrainians, Kazakhs and Byelorussians, in the 1930s and 1940s. About half a million Germans and Hungarians starved to death while prisoners of the Soviets.

By comparison, ‘civic stratification’ seems tepid, but Arendt shows how ethnic, national or racial differentiations in human rights can become ratcheted up to genocide. If rights become, as they always have been, the enforceable prerogative of the nation, then the kinds of actions undertaken by Nazi Germany and other European states in the 1930s and 1940s to deprive non-nationals of the same rights as the citizen, even though they may have been born in the territory, are always possible. The Third Reich issued mandates by which Jews who left Germany under pressure from pogroms and racial laws, or were deported from it, had no rights of return. The stateless, being rightless, were, as Arendt argues, at the mercy of the police forces, who took it upon themselves to enforce whatever they chose. In fact, the very being of the stateless person was criminalized. They had no rights to work, but, if they did, they were committing a criminal offence. The irony was that only by committing a criminal act could the stateless person gain rights – as a criminal in the state criminal justice system. The paralysing effects of this are described in W. G. Sebald’s Austerlitz, as German decrees on the Jewish Czech population meant that, among other restrictions of her rights, the protagonist’s mother ‘could go shopping only at certain times; she must not take a taxi, she could sit only in the last carriage of the tram, she could not visit a coffeehouse or cinema, or attend a concert or any other event’.96

If nothing else, Arendt’s ‘The Decline of the Nation-State and the End of the Rights of Man’ points to the dangers of the nation-state being the guarantor of human rights, and here we realize that the abstract ‘Rights of Man’ was a guarantee to individuals only insofar as they were under the protection of the state. The state, as Arendt contends, under its self-asserted sovereignty, is free to act with no recourse to any concept of natural rights. Indeed, as Schmitt argues, states as political entities construct differentiations between internal friend and enemy.97 This means that human rights do not elevate anyone from the condition of ‘bare life’, since rights can be removed at any time, depending on politically concocted human taxonomies. In Agamben’s reading, this precarity of ‘bare life’ is enabled by the French Declaration of Rights itself, which asserts the rights of man and citizens, leaving open the possibility that universal rights are subsumed under citizenship rights, and the sovereign enters into ‘more intimate symbiosis’ with the jurist, doctor scientist, expert and priest.98 Therefore, the sovereign power over the individual is absolute, creating ‘a new living dead man’,99 signifying a major shift, at least in the European world, from earlier, more diverse sources of authority.

Shortly after World War II, under Article 14 of the UDHR, all persons were given the right to seek asylum, and all peoples ‘are equal before the law and are entitled without any discrimination to equal protection of the law’ in Article 7. Subsequent human rights instruments, such as the International Covenant on Civil and Political Rights Article 26, also granted all persons equality before the law, free from discrimination. These enunciations, however, face the contradiction that, while the state was urged to guarantee these rights, it was also the guarantor of national, class, racial and ethnic privileges and inequalities. Indeed, as Arendt recognized, the creation of the state of Israel in British Mandate Palestine in the same year as the UDHR, while providing a ‘homeland’ for Jews, simply created another group of peoples with lesser rights. We know that this situation has continued to the present.100

Rightlessness and civic stratification are both political processes within states that are regulated by laws, and sometimes even Constitutions. Many years before the European Holocaust, the US Constitution held that black people were outside its reach. African-Americans only became citizens through the 14th Amendment in 1868. This was after the infamous Dred Scott case in 1857, in which a slave kept in non-slave states was ruled not to be a citizen. The first impulse of the US government was to restrict citizenship to Europeans, and this was inscribed in the 1790 Naturalization Act which limited citizenship to ‘white persons’.101 As we will discuss more in chapter 5, a similar ruling in the USA, Lone Wolf v. Hitchcock in 1903, invested Congress with ‘plenary powers’ over Native Americans.102 If people can be classified as not protected by the laws, subject to absolute state authority, outside of any social contract, then anything is possible. Although the victims of rightlessness and inferior rights have fought back through social movements, organized acts of resistance, oratory and art, their effects on a wide range of groups today cannot be overestimated.

The Colonialism of Human Rights

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