With the horrifying events unfolding in Ukraine, which is causing destruction and death on a scale not witnessed in Europe, since the Second World War, one of its most compelling consequences, is the flow of refugees and displaced people, now coming across its borders with neighbouring EU countries. As the conflict is now entering its second miserable week, with no end in sight, and the intensity of war increasing daily, the number of people ultimately needing help and refuge could reach millions.
As the conflict is now entering its second miserable week, with no end in sight, and the intensity of war increasing daily, the number of people ultimately needing help and refuge could reach millions.
It may therefore be timely, to review Hannah Arendt's analyses on migrants and refugees, in the light of the changes that have taken place since she wrote “The Origins of Totalitarianism”.
She wrote, "In the name of the people, the State was forced to recognise as citizens only 'nationals', and to guarantee the full enjoyment of civic and political rights to those who belonged to the national community by right of origin and birth. This meant that the State was partially transformed from an instrument of the law into an instrument of the nation”.
This conflict emerged, she continued, when the French Revolution linked the Declaration of Human Rights to the demand for national sovereignty. It is clear that the nation-state form continues to be an obstacle to the exercise of rights by foreigners and that their condition remains marked, even in democratic countries, by precariousness and discrimination.
On the other hand, it can no longer be said that, like the right to asylum, "human rights never became law, but that it has something of a hazy existence as a remedy in exceptional individual cases for which the normal legal institutions were insufficient.
This is because, although, the 1951 Geneva Convention provided refugees with less precarious protection than the non-binding "arrangements" of the inter-war period, the proliferation, from 1948 onwards, of international mechanisms strongly affirming the universality of human rights means that it can no longer be claimed that foreigners are simply denied this compliance.
The universality of human rights
However, at the very time when Nations have come to acknowledge this principle and recognize new rights for foreigners, and when judges have begun to censure differences in treatment based on nationality when there is no objective and reasonable justification for them, the migration policies pursued by Western countries over the last 40 years have prevented this favourable development from having any effect.
The essentially repressive dimension of these policies hinders the exercise of rights that are nevertheless considered fundamental and leads to increasingly serious violations of rights described as "non-derogable". In addition to the right to live with one's family, to work and to receive medical care, absolute rights such as the right to leave one's country, the right not to be arbitrarily detained, the right to asylum, the right not to be subjected to inhuman or degrading treatment and, finally, the right to life, are sacrificed to the policies of border closure.
The detention of foreigners has become a constituent element of immigration and asylum policies in the age of globalisation. Tens of thousands of foreigners who are guilty of - or suspected of - crossing or attempting to cross borders illegally, or of staying illegally on a territory, are held in places of various statures, or, increasingly, asylum seekers, confined while awaiting an uncertain and indefinite examination of their situation.
Confinement, forced removal and, more generally, the vulnerability created by secrecy or fear of persecution are a breeding ground for practices that violate human dignity, whether in terms of living conditions in informal settlements or Greek hotspots, violence and humiliation inflicted on those confined or expelled, or the risks incurred in the event of expulsion to the countries from which they were seeking to flee.
Not to mention the trafficking in human beings, the rapes, the forced labour and the enslavement to which all men and women are exposed throughout their migratory journey.
It is also the right to life that is denied them. By issuing visas only sparingly and dissuading carriers, under the threat of heavy penalties, from allowing people without this document to board, and consequently closing the legal routes to Europe to migrants, including asylum seekers, the nations are handing them over to smugglers and forcing them to take illegal routes, which are closely monitored by Frontex. To escape controls and avoid being intercepted and then turned back, they have to find longer, more costly and more dangerous routes.
Thousands of migrants die every year trying to cross the obstacles that are put in their way. They die at sea, in the Sahara or in the Libyan camps, they die of asphyxiation or drowning, they die of cold or heat or from the bullets of the army or the police.
This macabre toll continues to grow, to the point that François Crépeau, the United Nations special rapporteur for migrants' rights, was able to characterize the attitude of European countries with this cynical slogan: "Let them die, its a good deterrence."
This gives rise to an image - a very real one - of a world divided into two humanities: There are those who were lucky enough to be born in countries with secure and stable democracies, where people live in peace, have enough to eat, are cared for and can move freely; and there are those who were born in countries where terror and poverty often reign, and who are placed under house arrest, denied freedom of movement and can only move around risking their live and physical integrity.
Thus, despite the progress made in the international protection of human rights since the end of the war, we find ourselves in the paradoxical situation described by Hannah Arendt: "No paradox of contemporary politics exudes a more poignant irony than this gulf between the efforts of well-meaning idealists who persist in regarding as 'inalienable' those human rights enjoyed only by the citizens of the most prosperous and civilized countries, and the situation of those with no rights."
Asylum: the broken promises of the post-war era
By blocking migrants' access to their territory, countries are at the same time preventing those in need of international protection from finding a home. The context that inspired Hannah Arendt's reflections on the condition of refugees may have seemed obsolete in the post-war years, with the adoption of the Geneva Convention and the gradual resolution of the refugee problem in Europe; but subsequent developments, which began in the 1990s and culminated in 2015, have plunged the world, and Europe in particular, back into a situation that bears many similarities to the immediate pre-war period.
The Geneva Convention had introduced a twofold change in the treatment of the refugee question. It moved away from the humanitarian field and established real rights for refugees.
The New York Protocol, signed on 31 January 1967, lifted geographical and temporal restrictions. However, the resulting universality was very quickly undermined in practice: while the flow of refugees in Europe dried up, events in the rest of the world generated new ones which Western countries did everything they could to stem.
In the 1990s, for the first time since the end of the war, reference was made to a "crisis" in the right of asylum - an ambiguous expression that can be understood in two opposing senses. For the defenders of the right to asylum, the "crisis" lies in the reaction of Western nations, which resulted in considerable restrictions in the scope of this right, to the point of depriving it of all effectiveness.
In the eyes of governments, however, there is a crisis because the very strong growth in demand for asylum is causing the mechanisms for examining individual applications to be clogged up, while the vast majority of those who are flocking to Europe are said to be economic migrants seeking to abuse the protection of the Geneva Convention in order to circumvent restrictions on labour immigration.
The truth is that the new refugees come from poor countries and are therefore suspected of fleeing misery rather than persecution, that they belong to other "cultures" and are therefore presumed to be incompatible , while at the same time the ideological reasons for accepting refugees in the context of the Cold War have disappeared.
This reaction of European countries reached its peak at the time of the 2015 "migration crisis", faced with the influx of refugees from Syria, Iraq, Afghanistan or Eritrea. So much so that a parallel has been drawn, not without reason, between the hundreds of thousands of Jews fleeing Nazism who, between 1933 and 1940, came up against the closure of borders and the millions of refugees from Syria, Iraq, Afghanistan or Eritrea who take "the risk of drowning in the Mediterranean, of suffocating in a truck, of dying of thirst on a Greek road because they know that the alternative is to be gassed, machine-gunned, bombed or starved to death ".
In fact, eighty years later, the analogies are striking: the increasingly hermetic closure of borders as persecution worsens and the flow of exiles increases; refugees forced to embark clandestinely on makeshift boats with the hope, often disappointed, that they will be allowed to disembark somewhere - in Alexandria, Shanghai, Panama, Cuba, the evocation of the economic situation and unemployment, the fear of arousing public opinion, of stirring up xenophobia and anti-Semitism, by way of justification; the fantasy, yesterday, of the fifth column - today, of the terrorist threat; and finally a diplomacy that does not hesitate to make pacts with the worst dictators, yesterday with Hitler in an attempt to save peace, today with Erdogan or the bloodthirsty leaders of the Horn of Africa, in an attempt to curb migratory flows.
If the evocation of the past arouses disturbing resonances and the feeling that history is stuttering, is there not reason to be surprised ? For if nations were free to act as they pleased in the past, they are now theoretically bound by the obligations they have entered into.
In 1933, the then British Home Secretary coolly recalled: "We do not admit that there can be a right of asylum, and when we have to decide whether to take in this or that political refugee, we must ask whether it is in the interest of our country." At the time, this proclamation made light of humanitarian considerations in the name of Realpolitik, but it did not violate any norm of international law. Today, the context has changed: human rights in general and the right to asylum in particular have been placed under the protection of the international community.
In order not to appear to be in direct violation of their refugee protection obligations, Nations have used a variety of strategies to circumvent them, even to the point of emptying the Geneva Convention of its protective substance. In order to understand how they have achieved this feat, it should be recalled that while the 1948 Universal Declaration proclaims that "everyone has the right to seek and enjoy in other countries asylum from persecution", it does not provide for any reciprocal obligation on the part of Nations to receive them, and the same is true of the Geneva Convention, which merely sets out a principle of non-expulsion.
The minimum it requires is that a person who presents himself at the border and asks for protection should have his request examined and not be turned back before that examination has taken place.
Under these conditions, we can understand the rationale behind concepts such as "safe country of origin", "safe third country" and "indubitably unfounded application", which are gradually being incorporated into European legislation and which justify the return of applicants without examination or after a superficial examination of the application. We can also and above all understand the energy spent by Nations to stop the flow of refugees on their borders.
The strategy of circumventing the Geneva Convention thus has several components: a restrictive policy of recognition of status, the multiplication of obstacles aimed at preventing the arrival of refugees at the borders of Europe, the relocation of protection and finally the outsourcing of asylum policy: in order to push back ever further the sanitary cordon intended to protect Europe from these flows of undesirables, Western states subcontract to third countries the control of borders and the responsibility of receiving asylum applications, they thus find themselves locked up in camps for indefinite periods and exposed to the ill-treatment that accompanies this confinement.
Thus, while the small proportion of refugees who can claim to be covered by the Geneva Convention are granted this status in Western countries, millions of others massively concentrated in the Middle East and Africa, are kept at a safe distance from Europe, without any prospect of ever being recognised as such.
The fate of refugees therefore marks a clear step backwards in relation to the achievements of the second post-war period. However, the situation cannot be analysed as a pure and simple return to the one described by Hannah Arendt: the refugee issue is now part of the more general context of North-South relations and the political and ideological stakes are being replaced by economic ones. Hence the paradoxical situation: the official discourse of Western governments presents "refugees" as more worthy of attention than "economic migrants", whereas in fact they suffer even more than the latter from the deleterious and often deadly impact of the policy of closing borders.
Let us note in passing the reversal of stigmatizing labels from one era to another, as Hannah Arendt's evocation of the state of mind that animated the Jewish exiles shows: "We claimed to prove to others that we were only ordinary immigrants. We claimed that we had left of our own free will for countries of our own choosing and denied that our situation had anything to do with the so-called Jewish problems".
The return of the camps
The confinement of migrants is now, as has already been said, at the heart of migration policies. Erected to protect state borders, detention centres double as a symbolic separation between foreigners and nationals, between the South and the North; they contribute to maintaining the feeling that these migrants from elsewhere are dangerous. At best, a derogatory law, a law of exception, applies in these places, if there is any form of legal regulation at all.
Fundamental rights are poorly guaranteed, if not simply denied. Migrants are exposed to many forms of inhuman and degrading treatment: brutality, violence, deprivation of identity, use of registration numbers, not to mention the appalling fate of those who are dumped in Libyan camps.
To designate this reality, the word "camp" has imposed itself - not only to activists but also to researchers - to counter the euphemism produced by the official vocabulary which speaks of "centres", "waiting zones", "hotspots", but never of "camps". The question is whether and to what extent Hannah Arendt's analyses of the phenomenon of camps in totalitarian systems can be used to account for the reality of today's foreigners' camps.
We know that, for Giorgio Agamben, the camp continues to be the distinguishing mark of the political space of modernity, the expression of a state of exception that is perpetuated and tends to become the norm: so that in his eyes, the camps for foreigners, even in their "softest" form, are subject to the same analysis as totalitarian camps: they are spaces in which the legal system is suspended, in which a human being is reduced to "naked“ life.
If Hannah Arendt sees the camps "as the exemplary social ideal of total domination", she reminds us that concentration camps are not an invention of totalitarian regimes and she insists on the gradation that must be operated among them. Hell would be represented by the Nazi camps, purgatory by the labour camps in the Soviet Union, and below them would be the devices that aim to "put away undesirable elements of all kinds - refugees, stateless people, asocials and the unemployed", or "displaced persons, who have become superfluous and unwelcome". Hannah Arendt is thus careful to distinguish between different types of camps, while revealing that they all have one thing in common: "Human masses are treated as if they no longer exist, as if what happens to them is of no interest to anyone."
In most foreigners' camps we find the characteristic features of totalitarian camps: the cut-off from the rest of the world, depersonalization, attacks on dignity, denial of rights, the reign of arbitrariness.
However, one cannot equate the former with the latter without forcing reality. In addition to the fact that these characteristics are not found to the same degree in all places of confinement, the functions attributed to camps in totalitarian systems are not found in migrant camps. The purpose of foreigners' camps is to hold back or repress, to keep at a distance, to sort out; their aim is neither to reduce to servitude nor to put to death, even if death is present.
The dehumanisation at work in the foreigners' camps is an undeniable fact; but it is the inescapable consequence of the segregation, of a confinement that can be prolonged indefinitely, which is not their primary function. The migrants locked up in the camps are cut off from the world, like the prisoners in the concentration and extermination camps, "cut off from the world of the living much more clearly than if they were dead", according to Hannah Arendt's formula; but this is because confinement is the means found to keep them at a distance from the rest of the world.
They are certainly "many" because there are many of them and they are not wanted "in our midst"; but they are not comparable to the "superfluous humans" of which Hannah Arendt speaks, to whom totalitarianism has undertaken to deny the quality of men, because "human excess" is not a question of numbers, but of nature, of meaning: in accordance with the design of totalitarian ideologies, the camps aim to "transform the human personality into a mere thing, into something that even animals are not".
However, these observations are not enough to reassure. The purpose of the foreigners' camps may not be to deprive migrants of their humanity, but does this mean that they belong to the same humanity as us? Can the indifference of Western opinion be explained at least in part by the fact that it does not feel concerned by the fate of this "other" humanity, which, moreover, is rendered largely invisible by confinement and distancing. Instead of the barbaric "killings" of the totalitarian camps, democracies opt for a "letting die" of those whose fate is not our concern, suggests Alain Brossat.
The encamped people seem to have lost the "right to have rights", and this is another point of convergence with the totalitarian camps, since the erasure of the subject of law and the disappearance of the very capacity to have rights are characteristics of totalitarianism, and "the first essential step that leads to total domination consists in killing the legal person in man", as Hannah Arendt wrote.