Natasha Saunders
Hannah Arendt never wrote extensively on international law, and her scattered engagements with it betray no simple or encompassing view on international law’s place in global politics or in her wider thought. Indeed, rather than engaging with “international law” as a single, coherent body of law, she engages with distinct and developing aspects of it at specific points in time, and she engages with human rights law and international criminal law in particular. The particularities of Arendt’s analyses of statelessness and of the trial of Adolf Eichmann are addressed in other chapters in this volume, and so I will not rehearse them here. In this chapter, I outline how Arendt’s engagements with international law are revelatory not of a view on the place of international law per se in global politics but of evidence of an attempt to work through what different branches of international law could potentially do, and not do, for international communal life after totalitarianism.
International Human Rights Law
Arendt had no simple view on the role to be played by international law in the realm of human rights. On the one hand, she was critical of human rights law as it existed at the time—it was, of course, in its infancy. On the other hand, her reflections on the flaws in international legal attempts to secure human rights also indicated a potential role that could be played by international law in the future, provided we paid due attention to the paradox revealed by the experiences of the interwar period. However, this potential role for international human rights law should not be understood as a panacea for the challenges posed to making human rights a reality of lived experience. In short, while Arendt left open the possibility that international human rights law could develop in the needed direction in the future, her analysis also indicates that we must be wary of overstating what international law could do and must refrain from seeing international law as the solution to the fundamentally political problem of mutually guaranteeing human rights for each other in political communities.
A fundamental paradox of human rights was revealed in the interwar period when millions of people appeared who, in losing their legal status—their nationality—had genuinely become nothing but human, and yet they were unable to rely upon their supposedly inalienable human rights, when arguably they needed them most. The nation-state appeared incapable of guaranteeing human rights for those who had lost nationally guaranteed rights, leading Arendt to posit that there existed only one truly human right, the right to have rights: the right to belong to a political community that is willing and able to guarantee all of one’s other rights. Not only was this the one right that was never recognized in the various declarations of rights, but even if it had been, such declarations were, in Arendt’s view, politically ineffective. Declarations of rights, grounded in the dignity or nature of man, deal with man in the abstract. But for Arendt, neither man nor rights make sense in the abstract. What the experience of the stateless demonstrated was that rights can only truly exist, can only be experienced, in a community. Enumerating rights is not sufficient to ensure the meaningful and effective enjoyment of those rights, as this can only come when they are mutually recognized by the members of a political community. The nation-state had failed to be or to remain such a community, and so it was necessary, in Arendt’s view, to reimagine the nature of the communities to which the right to have rights would correspond, while the right to have rights should itself be guaranteed by—guaranteed, not grounded or founded upon—humanity itself.
Arendt, however, was skeptical about the prospects for international human rights law developing such a new guarantee:
Contrary to the best-intentioned humanitarian attempts to obtain new declarations of human rights from international organizations, it should be understood that this idea transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states; and, for the time being, a sphere that is above the nations does not exist.1
This statement should not, however, be interpreted as completely pessimistic. Just because “a sphere . . . above the nations” did not exist “at present” does not mean that such a sphere was completely beyond the realm of possibility. Arendt’s words of caution about the most obvious candidate for such a sphere, a “world government,” do, however, indicate an important limitation to any such project of development of international human rights law. A world government, she cautions, is just as open to the exclusionary logic of “insiders” and “outsiders” as the nation-state turned out to be,
It is quite conceivable, and even within the realm of practical political possibilities, that one fine day a highly organized and mechanized humanity will conclude quite democratically—namely by majority decision—that for humanity as a whole it would be better to liquidate certain parts thereof.2
Arendt’s cautions about the desirability of a world government as a solution to the problem of guaranteeing the right to have rights bring into relief the fundamentally political, rather than legal, predicament of human rights. The development of international human rights law in the direction of institutional guarantees of the right to have rights in a “sphere above the nations” could only ever provide partial protection. Since rights are neither natural nor pre-political, they can only be recognized in a political community and be guaranteed through reciprocal recognition of equality and freedom by one’s co-members. In short, human rights must be mutually guaranteed as a matter of political practice, and not merely legal declaration. Law has an important role to play in the protection of human rights: mutual guarantees of political equality needed man-made laws to give them a degree of permanence.3 However, as Arendt states in “What is Freedom?,” no institutional structure—no matter how perfectly designed—can be immune from its own potential erosion and decay: political institutions depend for their survival on the continued actions of men and women.4 The historical decline of the nation-state analyzed by Arendt demonstrates that institutions established to protect rights can always decay and be turned against them.
If the fundamental flaw with international human rights law lies in its attempt to ensure with declarations what can only be guaranteed by continued political practice, then there are many ways in which Arendt’s reflections are still relevant today. While human rights have formally been decoupled from citizenship, and human rights treaties are now transposed into positive law in signatory states, the experience of refugees and stateless people today indicates that we still have a long way to go in mutually guaranteeing to each other the right to belong to a political community willing and able to guarantee all our other rights. Arendt’s analysis thus not only highlights the flaws with our understanding of human rights but also indicates that more law cannot solve this problem by itself.
International Criminal Law
Writing to her former mentor, Karl Jaspers, in 1946, Arendt stated that the crimes committed by the Nazis “explode the limits of the law; and that is precisely what constitutes their monstrousness. For these crimes, no punishment is severe enough. . . . That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems.”5 Fourteen years later, prior to attending the trial of Adolf Eichmann in Jerusalem, Arendt wrote, again to Jaspers, that “it seems to me that we have no tools to hand except legal ones with which we have to judge and pass sentence on something that cannot even be adequately represented either in legal terms or in political terms.”6 She ends the letter with a preliminary view of the importance of the case that would be confirmed by watching the trial unfold: “the Eichmann case has shown that we need a court for criminal cases in The Hague.” While Arendt was fiercely critical of attempts to turn the Eichmann trial into a historical or political lesson,7 she nevertheless saw, in the way the trial unfolded, a missed opportunity for establishing an “international penal law” that could play a part in defending humanity against the recurrence of such monstrous crimes. The trial, ultimately, failed to understand the nature of the crimes and failed to understand the new type of criminal that Eichmann represented. The development of the International Criminal Court forty years later has gone some way to addressing the first, but is perhaps by its nature not capable of addressing the second.
The nature of the deeds of which Eichmann stood accused necessitated, in Arendt’s view, the development of a body of international criminal law and a permanent court up to the task of adequately prosecuting them. Eichmann had not simply facilitated the murder of millions of Jews; he had committed a monstrous crime against the human status as such. The Eichmann trial did succeed in clarifying the difference between war crimes, “inhuman acts,” and crimes against humanity “with sufficient clarity to become part of a future international penal code.”8 However, the trial had failed to recognize that the extermination of which Eichmann was accused was more than a crime against the Jewish people; that such crimes had injured and endangered the whole of humanity. And so, while according to the precedents set by previous tribunals, Israel had the right to sit in judgment of Eichmann, Arendt felt that “the very monstrousness of the events is ‘minimized’ before a tribunal that represents one nation only,”9 and so an international criminal court was required to do justice to it. Recognizing the nature of these crimes, developing the required body of criminal law and creating an institution appropriate to pass judgment and punishment on them was a vital step to take if we wished to deter future would-be perpetrators from engaging in these crimes: “if genocide is an actual possibility of the future, then no people on earth . . . can feel reasonably sure of its continued existence without the help and the protection of international criminal law.”10 Crimes committed against humanity as such cannot adequately be dealt with in national courts applying national laws. Over forty years later, such a court has finally been established, the International Criminal Court, which does indeed have jurisdiction over these new crimes, although it must defer to national courts when they are willing and able to prosecute them. There is one important aspect, however, of these new crimes that even subsequent developments of international criminal law have failed adequately to come to terms with: the new type of criminal that Eichmann represented. It is entirely possible, however, that this is beyond the capacity of the law as such.
In addition to Eichmann’s pleas that he had been merely a cog in a machine, he also maintained his innocence on the basis that he had obeyed not only orders but also the law. While Arendt felt that this was no defense, she did think that it highlighted a vitally important issue with our understanding of criminal liability. What seemed to elude the Jerusalem court was an understanding of the importance of the legal and moral context of the Third Reich. In her reflections on the functioning of Eichmann’s conscience, Arendt identified in Eichmann a person who “equates right with normal and wrong with exceptional.”11 In ordinary circumstances, this is not particularly problematic, although Arendt certainly thought that it was confused. But the Third Reich was anything but ordinary. It was a society in which ordinary morality had been completely turned upside down, and legal rules and exceptions had been inverted:12 rather than “Thou shalt not kill,” the law now required “Thou shalt kill.” The criminal nature of the state itself needed to be understood as this was an environment in which it became “well-nigh impossible”13 for a person like Eichmann, a person who lacked “an unequivocal voice of conscience,”14 to recognize that he was doing wrong. Arendt draws out the importance of this when she examines the issue of obedience to orders. An obedience-to-orders defense would only be considered valid when the orders to be obeyed are not “manifestly unlawful.” Such unlawfulness “should fly like a black flag above [it], as a warning reading, ‘Prohibited.’ In other words, the order, to be recognized by the soldier as ‘manifestly unlawful,’ must violate by its unusualness the canons of the legal system to which he is accustomed.”15 The problem was, for Arendt, that in the Third Reich, the black flag reading “prohibited” flies over orders such as the one Eichmann received from Himmler to stop the deportations to the death camps and not, as the court presumed, over the order to ship millions of people to their deaths.16 Obedience to orders is similarly addressed in The Rome Statute of The International Criminal Court. A defendant can be relieved of criminal responsibility if the order that he/she is under a legal obligation to obey is not known to him/her as a being unlawful, and that the order itself was not manifestly unlawful. Rome Statute, Art. 33(1), Section 2 of Article 33 of the statute does state that “orders to commit genocide or crimes against humanity are manifestly unlawful,” but while that may help us prosecute these crimes in the future—undoubtedly an important task—it does not help us develop our understanding or recognition of the new type of criminal: an individual who commits such monstrous crimes in the absence of mens rea, in the absence of intention to commit a crime. But, perhaps, this is what international criminal law could not do. International criminal law can help turn cogs back into men and punish them for their deeds. We perhaps should not expect international criminal law to assist in the development of our capacities to make moral judgments for ourselves,17 and it was understanding this capacity to which Arendt turned in the last years of her life.
Conclusion
Arendt clearly felt that in order for humanity to move forward in the shadow of totalitarianism and its crimes, we have serious political and legal work to do. The development of international law—in relation to both human rights and criminal law—had an important role to play in rebuilding communal life after the Holocaust. But Arendt felt it would be a mistake to rely on international law to solve political problems. International criminal law, by turning a cog back into a person, could render justice—to the extent that this was even possible—for crimes against humanity, but the law cannot ensure that we develop capacities to think that could help us to do the right thing when the chips are down. And, while the protection of human rights should not be abandoned solely to the nation-state, new international institutions will be no surer guarantee for the right to have rights, as this right can only be guaranteed as a matter of political practice.
Notes
1 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace, 1973), 298.
2 Ibid., 299.
3 Ayten Gündoğdu, “Perplexities of the Rights of Man: Arendt on the Aporias of Human Rights,” Eur opean Journal of Political Theory 11, no. 1 (2011): 4–24, 11.
4 Hannah Arendt, “What Is Freedom?” in Between Past and Future: Eight Exercises in Political Thought (London: Penguin, 2006): 142–69, 152.
5 Hannah Arendt and Karl Jaspers, Correspondence: 1926-1969, ed. Lotte Kohler and Hans Saner (New York: Harcourt Brace, 1992), August 17, 1946.
6 Ibid., December 23, 1960.
7 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (London: Penguin, 2006), 286–89.
8 Ibid., 275.
9 Ibid., 270.
10 Ibid., 273.
11 David Luban, “Hannah Arendt as a Theorist of International Criminal Law,” Georgetown Public Law and Legal Theory Research Paper No. 11-30 (2011): 26.
12 Ibid.
13 Ibid., 276.
14 Ibid., 148.
15 Ibid.
16 Ibid., 148–49.
17 Ibid., 159–89.