Let's grant, for the sake of argument, that Arendt has privileged understanding of the situation. My present interest is in trying to grasp what she takes to be the 'essential' feature or difference she is pointing to and why she thinks this is significant. And I take it that the Nuremberg Laws are on one side of a dividing line and "the actual horror of Auschwitz" and the "gas chambers" on the other. She clearly states in the sentences before the quoted passage that genocide is "the unprecedented crime." She repeats variations on this point throughout the "epilogue:" so, for example, she writes, "Nothing is more pernicious to an understanding of these new crimes, or stands more in the way of the emergence of an international penal code that could take care of them, than the common illusion that the crime of murder and the crime of genocide are essentially the same, and that the latter therefore is "no new crime properly speaking." The point of the latter is that an altogether different order is broken and an altogether different community is violated." (272) And also: "Expulsion and genocide, though both are international offenses, must remain distinct; the former is an offense against fellow-nations, whereas the latter is an attack upon human diversity as such, that is, upon a characteristic of the "human status" without which the very words "mankind" or "humanity' would be devoid of meaning." (268)
Arendt presupposes here (and explains in Eichmann) that while victims are interested parties, fundamentally a crime is an offense or harm against a community or, more abstractly, an order. And because she insists on this distinction between victim and community, what is characteristic of Nazi genocide as a crime is not its murderous antisemitism directed at particular Jews, but rather its attack on "human diversity as such." So, what makes this crime essentially different is a violation of (let's grant) a fundamental principle.* By 'crime' here Arendt does not mean a violation of existing law or even the retrospective law Eichmann was tried under. But rather an offense against a more fundamental law that will have to figure into a future (positive) "international law" (273) For it is such a developing, as of yet "unfinished nature of international law" (274) that will be legal guarantor of offenses against the community of mankind.
These remarks help us understand the purpose and significance of Arendt's analysis of the essential difference between genocide and other crimes. As I noted yesterday, for her the function of a trial, the meting out of justice, is not just, although this is central, to sit in judgment of a person, and, as she would emphasize (recall) in "truth and politics," ascertain the truth, but also a mechanism to channel and placate the moral indignation victims and spectators ought to feel at the sight of crimes done to fellow humans.
But according to Arendt, a trial can also be the occasion to help develop the as of "yet unfinished nature of international law," so she claims it "has become the task of ordinary trial judges to render justice without the help of, or beyond the limitation set upon them through, positive, posited laws." (274) To be sure, she recognizes that this task was not so understood by the district judges nor assigned them by Israeli (positive) law. That is to say, for Arendt the Eichmann trial turned into a missed opportunity to go beyond the Nuremberg Tribunal and its successor trials in order to help develop, from the bottom up as it were, the legal framework or "international penal code" that could take care for the internal order, that is, the community of mankind. This is why claims that "had the court in Jerusalem understood that there were distinctions between discrimination, expulsion, and genocide, it would immediately have become clear that the supreme crime it was confronted with, the physical extermination of the Jewish people, was a crime against humanity, perpetrated upon the body of the Jewish people, and that only the choice of victims, not the nature of the crime." (269)
With that in place, I think Arendt should not have suggested that it is "Jewish history" that made the Israeli polity and other Jews miss this point. By this I do not mean the more critical observation that she fails to acknowledge that her aims for the trial risk instrumentalizing victims into tools for the development of international law. Even if one is receptive to the development of such an international penal code, it is no small matter having to acknowledge that the antisemitism in the Nazi genocidal antisemitism is a contingent feature of the crime and not essential to its nature.+ Even if genocide is also a crime against humanity, against "mankind in its entirety," (276) it does not follow it is primarily a crime against humanity from the perspective of the victims and their communities/community
For, even if one grants Arendt the possible existence of a world order, it is from a political and legal point of view not obvious such a possible community would have to take precedence over existing orders and communities. That is itself a political (and legal) question. Part of the explicit polemic of the book is directed against Ben Gurion not just because Arendt thinks he created a show-trial, but more fundamentally that he who the spokesperson for particularity. When he is quoted, in response to the demand of an international tribunal, as saying, "Israel does not need the protection of an International Court" (272) he is not presented as merely stating an empirical fact, or making a prediction, he is being held up as an exemplar of the rejection of a certain "ideal" standard. (273)
Now, what I find interesting here is that it is characteristic of genocide that is essentially (according to Arendt) a crime against human diversity--underneath it there is a murderous desire for homogeneity, the "elimination forever" of "certain "races"" (277). But it is precisely that very particularity international law is supposed to serve that on the principle of humanity has to grant the legal precedence of the global order over the particular. This need not be a conceptual tension, but it is obvious that attachment to local orders may be stronger or even practically necessary for the global to come into being. In Eichmann Arendt does not resolve these complexities.
I could stop there. But as it happens Arendt does offer an argument for why her perspective should predominate:
It is essentially for this reason: that the unprecedented, once it has appeared, may become a precedent for the future, that "all trials touching upon "crimes against humanity" must be judged according to a standard that is today still an "ideal." If genocide is an actual possibility of the future, then no people on earth - least of all, of course, the Jewish people, in Israel or elsewhere - can feel reasonably sure of its continued existence without the help and the protection of international law. Success or failure in dealing with the hitherto unprecedented can lie only in the extent to which this dealing may serve as a valid precedent on the road international penal law. (273)++
Before I close on a note of criticism; I agree with her that because the unprecedented, once it has appeared, may become a precedent for the future, the only response to it must -- given the enormity of genocide -- be structural. Her fear has, alas, been amply vindicated. This is, in part, why Eichmann remains an urgent book.
But it is not obvious that the development of international penal law, even if welcome, is the the right ideal. For, Arendt claims on the very same page that "punishment" has never possessed "enough power of deterrence" (273). So, she has de facto granted that even with international penal law no people can feel reasonably sure of its continued existence. Moreover, she offers no other argument for her claim that "success or failure in dealing with the hitherto unprecedented can lie only in the extent to which this dealing may serve as a valid precedent on the road international penal law."
And so, while the liberal internationalist may feel joy at discerning in Arendt a surprising ally, the sober student of politics may feel not without some justification that, even if international law is perfected, the cause of Justice may sometimes be better served by fiercely defended, imperfect parochial laws.
+That's compatible with recognizing that other groups -- in context, Arendt rightly notes the significance of gypsies -- were also victims of genocide.
++I ignore here how Arendt's definitions of genocide and crimes against humanity compare to current legal definitions.
*I do not mean to suggest this exhausts Arendt's analysis. She also thinks there are other features of the crime that are unprecedented and distinctive:
Eichmann, it will be remembered, had steadfastly insisted that he was guilty only of "aiding and abetting" in the commission of the crimes with which he was charged, that he himself had never committed an overt act....For it was an important point; it touched upon the very essence of this crime, which was no ordinary crime, and the very nature of this criminal, who was no common criminal; by implication, it also took cognizance of the weird fact that in the death camps it was usually the inmates and the victims who had actually wielded "the fatal instrument with [their] own hands." What the judgment had to say on this point was more than correct, it was the truth: "Expressing his activities in terms of Section 23 of our Criminal Code Ordinance, we should say that they were mainly those of a person soliciting by giving counsel or advice to others and of one who enabled or aided others in [the criminal] act." But "in such an enormous and complicated crime as the one we are now considering, wherein many people participated, on various levels and in various modes of activity - the planners, the organizers, and those executing the deeds, according to their various ranks - there is not much point in using the ordinary concepts of counseling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands [Arendt's italics]." (246-7)
I'm not sure about the proceedings in Israel that are the main topic (or nominal topic?) of Arendt's book, but the quoted bits make me wonder whether she'd heard about the Armenian genocide (Hitler, supposedly, had and was influenced by it) and if she had heard of it, why she thought the holocaust was an unprecedented crime - why did she think the cases were different? (I don't mean this to be a rhetorical question. I haven't read the book and would be interested to know if she discusses it or just ignores it or is ignorant of it.)
The discussion of international law seem odd, since the Genocide Convention, which came into effect in 1951, would seem to fit with what she suggests - that it's a distinct crime from murder, directed at groups - and so it's not clear what's supposed to be standing in the way of the development of international law. Again, maybe someone can fill me in.
Posted by: Matt | 05/13/2020 at 12:58 PM
Hi Matt,
She recognizes the existence of the Armenian case explicitly. And also other much earlier cases of genocidal murder (in the Ancient world). But all of these are, according to her, extensions of what can be captured by some notion of political utility and not (as I tried to show above) intended to promote human homogeneity. (So they are not attacks on human diversity as such.)
On the relationship between the Convention and then standing international law. You may actually wish to read her *Eichmann.* It is very good on exposing the reluctance of the prosecutors at the Nuremberg Tribunal and its many successors to really let cases hang on the genocide charge, if at all. (The earlier post I did on *Eichmann* and refer to above is indirectly relevant on this.)
Posted by: Eric Schliesser | 05/13/2020 at 01:22 PM
Thanks, Eric - I should read it at some point. The Nuremberg trials pre-date the Genocide convention, so even if they fit w/ Arendt's claim, I'm not sure that helps with the claim as applied to the Genocide convention.
The point on Armenia is interesting - one I'll have to think about. I'm not sure if it's right historically, but I'm not an expert.
Posted by: Matt | 05/14/2020 at 10:05 AM
I think you misunderstand one of her claims. She argues that many of the successor tribunals are, while temporally after the Genocide convention, conceptually and legally they follow the pattern laid down at Nuremberg.
Posted by: Eric Schliesser | 05/14/2020 at 10:21 AM
Maybe - as I've said, I haven't read the book. But, what "successor tribunals" were there between the Eichmann trial and Nuremberg that could have, but failed to, apply the Genocide convention? The ones well known today were, of course, long after Arendt's death, and don't seem to fit her account. It's true that it's hard to bring and win a genocide conviction, but it's not clear that's wrong itself. It seems to me here that she's talking about her (not realized) expectation or over-generalizing, but maybe there are cases you can note here that I haven't thought of. If so, which ones?
Posted by: Matt | 05/14/2020 at 11:53 AM