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Kosovo and “the Jewish Question”

John Rosenthal teaches in the Philosophy Department at Colorado College. He would like to thank Klaus-Gerd Giesen, Robert hayden, Laura Duhan Kaplan, and Ellen Meiksins Wood for their comments on earlier drafts of this essay, and states that opinions expressed and errors committed are, of course, solely his responsibility.

Whether or not it is true, as Václav Havel famously claimed, that NATO’s attack on Yugoslavia represents the first war to be waged “in the name of principles and values,” the first “ethical war,” it might well be the case that it is the first act of armed aggression against a sovereign state whose popular legitimation relied almost wholly upon an alleged historical analogy. NATO spokespersons and apologists could not allude often enough to the Second World War, Hitler, and the Nazi regime’s persecution of the Jews. They did this in lieu of providing reasoned justification for NATO’s action, perhaps because under existing international law there was surely no such justification to be found. The NATO attack had to be presented as morally urgent, since it was manifestly illegal. For this purpose, allusion to the “Holocaust” and, in Daniel Jonah Goldhagen’s words, the “absolute evil” of its perpetrators, was the most obvious and effective instrument.1

Thus, on May 13, in a speech to the Veterans of Foreign Wars—a group which can be supposed, on the whole, to have been skeptical of NATO intervention—Bill Clinton explicitly compared the alleged “ethnic cleansing” of the Kosovo Albanians by Yugoslav forces to the “ethnic extermination of the Holocaust.” The two were not “the same,” he said cryptically, but they were “related.” In continental Europe, German Minister of Defense Rudolf Scharping set the tone, announcing confidently, in late March, that “the genocide [Völkermord] has begun.”2 Over the next several weeks, Scharping continued to provide grist for the mill of Germany’s boulevard press by adding pointed details about “concentration camps” and racial “selection” (and even—momentarily forgoing the specific allusions to the “Holocaust” for a graphic invocation of pure “evil”—of Serbian soldiers “playing soccer” with the severed heads of their victims).3 References to the media’s autonomous employment of the same set of allusions are not, I trust, necessary here. The association of Albanians in Yugoslavia with Jews under the Third Reich and, concomitantly, of Serbs with Nazis—curiously, not of Serbs with Germans or Serbian Socialist Party members with Nazis, which latter analogies would at least maintain a plausible proportionality—permeated coverage of the Kosovo crisis in the western media.4 The Milosevic/Hitler association was, of course, part of the same schema. Such associations effectively served to undermine the possibility of dispassionate discussion of NATO policy. Who, after all, would want to be thought accomplice, even by omission, to another “Holocaust?”

Typically, however, the allusion to the Nazi persecution of the Jews was left so vague that it remained unclear whether comparison was being made to the specifically German Jews (i.e., those Jews who were legally resident within the recognized borders of Germany prior, say, to March 1938 and the Anschluss of Austria), or rather to all such Jews throughout Europe who eventually fell under the civil or military, official or unofficial, jurisdiction of the German Reich (whether through residence in Germany or residence in those territories that were, from 1938 onward, annexed to the Reich and/or occupied militarily by its forces). This may seem like an insignificant nuance, but, in fact, the eliding of this distinction was crucial to the legitimating function that the allusion played in NATO propaganda. For it is the alleged analogy to the genocidal extreme at which Nazi “Jewish policy” arrived during the Second World War and which affected all of European Jewry that was invoked in order to stylize the Kosovo Albanians into “persecuted Jews.” This hyperbolic construal of the analogy—grounded, as will be seen below, in a remarkable debasement of the very concept of “genocide”—forestalled examination of the legal and political details of the Kosovo Albanians’ status under the Yugoslav regime. Only such an examination would allow meaningful comparison to be made to the status of German Jews under the prewar Nazi regime. When comparison is thus made on the basis of the respective details, as will be done here, the claim to analogy obviously fails.

In this connection, Hollywood depictions of the Third Reich and especially no doubt Steven Spielberg’s Schindler’s List made an important ideological contribution in preparing the ground for public acceptance of NATO’s actions. In a popular consciousness weaned on such representations, all the details of the Third Reich and the Second World War merge into the background upon which the drama of the “Holocaust” is played out. The latter is so thoroughly identified with the “essence” of the Nazi regime that all its other crimes (like, for instance, the crimes of one Oskar Schindler in serving as an informant for the German Abwehr in Czechoslovakia) are effectively absolved. Thus, it has been possible in the United States—and, symptomatically, also in Germany—for vague allusions to the Third Reich to bring with them the implication that just as it was “right” for the Allies to wage war against Nazi Germany in light of the latter’s criminal policy with respect to the Jews (though perhaps not “right” for them to have done so on account of the “mere” invasion of Poland?), so it was also “right” for NATO to wage war against present-day Yugoslavia in light of the latter’s criminal policy with respect to the Kosovo Albanians.

A first problem with such a suggestion is that the Allies never did, in fact, wage war against Nazi Germany on account of its “Jewish policy” and, furthermore, the specifically German Jews were never as such the object of genocide. Rather, the Allies serially entered into a war against Nazi Germany on the grounds of its invasion of or declaration of war against other sovereign states, whether themselves or third states to which they were bound by treaty; and the German Jews before the outbreak of the war were subjected, under Nazi rule, not to any policy of planned extermination, but to one of gradual political and civil exclusion, accompanied by state-sanctioned and often state-promoted campaigns of extra-legal harassment. This latter process was initiated by the 1933 laws designed (as it turned out, not entirely successfully) to exclude Jews from employment in the civil service and liberal professions; it reached a crucial legislative juncture with the so-called Nuremberg Laws of 1935 (the “Law for the Protection of German Blood” and the new Reich Citizenship Law); and continued thereafter in the form of piecemeal “Aryanizations” (whether direct expropriations or quasi-legal coerced transfers) of “Jewish-owned” firms. By 1938 the Nazi goal of “driving out the Jews” from the German economy had been, for all intents and purposes, achieved. (Of course, not long afterward, both German and non-German Jews would be reinserted into the wartime Reich economy, now in the guise of slave-laborers.) In stripping all such persons as counted under the law as “Jews” of their German citizenship (an earlier law had already enabled case-by-case “denaturalization”), the new Reich Citizenship Law afforded the exclusion of the Jews with a certain legal coherence which it would have lacked otherwise. Practically, however, its effects were somewhat less dramatic. Given the role already played by the so-called ius sanguinis or “right of blood” in the Wilhelmine citizenship law of 1913, which continued in force through the Weimar period, more recent Jewish emigrants to Germany and their descendants had largely been prevented from acquiring German citizenship anyway.5 In any case, the entire process, in all its diverse facets, clearly depended upon the legal definition of “Jewishness,” which was finally codified with scholastic subtlety (if not logical consistency)6 in a supplementary decree to the Citizenship Law. Only after the outbreak of the war did the Nazi regime implement a policy of planned extermination of all such Jews as fell under the de facto authority of the Reich, thus comprising as well the specifically German Jews.

Despite a recent reform proposal—which was quickly withdrawn by the current Social Democratic/Green coalition government following evidence of popular opposition and replaced by a largely cosmetic revision—the 1913 citizenship law effectively remains in force in Germany even today.7 Consequently, if there is any “minority” group in contemporary Europe whose legal status and situation bears a strong, structural analogy to that of the German Jews under the Third Reich, it is the roughly two million German Turks presently living in Germany. As will be seen momentarily, the status and situation of the Kosovo Albanians in the Yugoslav Federation bore no such analogy. The overwhelming majority of the German Turks have either lived in Germany for decades or were born there, yet only in exceptional cases do they enjoy the status of German citizens.8 In light of the wave of racist attacks on Turks in Germany that followed “reunification,” and the notably weak—if not to say, as far as the assailants are concerned, positively accommodating—juridical and legislative response to these attacks, the analogy is even more exact. This is not to say that the progressive exclusion to which German Jews were subjected in the Third Reich is likely to repeat itself as concerns Turks in the Federal Republic,9 if only because on the whole German Turks have never achieved the same degree of integration as German Jews had before the Nazi party’s rise to power. It was necessary for the Nazis, in effect, to transform the German Jews into foreigners in their own land;10 the German Turks, by contrast, have never been allowed to be anything but that. In any case, I know of no major “human rights” group that has devoted itself to exposing the discriminatory effects of the German state’s policy towards Germany’s Turkish residents, much less of any calls for a NATO intervention in Germany on the account of the latter!

The Question of Genocide

Of course, if prior to the NATO intervention the Kosovo Albanians were being subjected by the Yugoslav state to a genocidal policy, then the details of their legal status under the ancien régime, and of the political struggle that pitted Albanian nationalist forces against both the Serbian provincial and Yugoslav federal states, would all be moot. There would, then, be an abundantly obvious analogy—the very one which is so often suggested—not, however, to the treatment of the German Jews per se, but rather to that of European Jewry tout court under Nazi rule.11 This would still not imply that the Allied invasion of the German Reich in the Second World War provides a meaningful precedent for NATO intervention in Yugoslavia today. As noted, the Allied invasion was a response to German external aggression, not to the Reich’s Jewish policy. By drawing attention to this fact, I do not mean to be suggesting that the principle of foreign intervention to prevent genocide is unfounded. The Allied intervention in the Second World War simply did not involve any application of such a principle. Indeed, the other cases in the twentieth century which could plausibly be construed as instances of state-sponsored genocide likewise occurred in the context of what were already wartime situations and, though this is not the place to enter into the matter, I suspect that this is not mere coincidence. So, the foundation of such a principle of intervention is probably not in fact as pressing a matter as is often suggested nowadays.

In any event, apart from its employment as a sanctimonious pretext, such a principle is utterly irrelevant to the Kosovo case, since if the term “genocide” is being used in anything like its hitherto customary sense, there is no evidence whatsoever to support the claim that a genocide was occurring or was about to occur there. Especially in the context of the wars of Yugoslav succession, it has become alarmingly common nowadays to use the term “genocide” to refer to any form of group oppression, rather than just (as the term’s very etymology implies) the organized physical destruction—one does not speak, for instance, of a “homicide” after which the victim is still alive!—of the members of some putative group and on account of their ascribed group-membership. The last mentioned condition is essential. It needs to be stressed that the genocidal policy of the German Reich with regard to the Jews, for example, would not have been possible without a prior stage of administrative “Absonderung:” a “sorting out” from the population as a whole of those persons who were to count as “Jews.” The same, of course, holds for the genocidal practices of the Reich with regard to Roma (“gypsies”), who were also targeted for extermination throughout Germany and the occupied territories.

The hyperinflationary use of the term “genocide” deserves, incidentally, to be considered as a new and more subtle form of negationism. This new form of negationism does not directly deny the occurrence of the genocide perpetrated against European Jews; instead, through overgeneralization, it effectively denies its specificity, thus making the genocidal policy—or, more exactly, policies—of the Third Reich appear a regrettable but, nonetheless, relatively “normal” occurrence. This new negationism is surely more dangerous than the older, cruder variety, since whereas the latter was largely restricted to neo-Nazi cranks, the former has become, as one says in German, salonfähig—acceptable in good company.12

According to the most widely disseminated estimates, the last year of the conflict between the Kosovo Liberation Army (KLA) and Yugoslav forces prior to the inception of the NATO attack last March resulted in some two thousand deaths. This figure includes victims from among all of Kosovo’s nationalities, including Serbs. Nevertheless, even if it were supposed that all of the victims were Albanians, in light of a total Albanian population in the region of some 1.8 million prior to the war, such numbers can hardly justify talk of “genocide.” According to well-known and widely accepted estimates, some five to six million Jews fell victim to the genocidal practices of the Third Reich, constituting at least half of the total Jewish population resident in Europe. The gas chamber at Auschwitz was built to kill two thousand persons at a time. Toward the end of the war, roughly six thousand persons a day were being killed at Auschwitz alone. If significantly dissimilar events are to be kept distinguished, then there must clearly be some quantitative criterion for the application of the term “genocide.” Events in Kosovo prior to the NATO intervention clearly do not meet that criterion.

I do not mean to suggest by this that numbers alone (or, more exactly, proportions) matter. Even without numbers sufficient to constitute prima facie evidence of the occurrence of genocide, it might still be legitimate to speak adjectivally of a “genocidal policy“ or “genocidal practices“ if there is evidence, as according to the definition given above, of the methodical targeting of civilian population for extermination on account of ascribed group-membership. But the facts of the case in Kosovo likewise fail to satisfy this “qualitative” criterion. Even the alleged massacre of Albanian civilians by Yugoslav forces at Racak on January 15, 1999, which served as a kind of “trigger” for the propaganda offensive preceding NATO’s bombing campaign, cannot be regarded as probative in this regard. Both eyewitness accounts of western journalists, supported by Associated Press footage of a gunbattle filmed earlier that day, and forensic evidence suggest that the dead were, in fact, in this case too, KLA combatants.13

This is not to deny that after the onset of NATO bombing, Yugoslav regular forces or Serb paramilitaries then took action against Albanian civilians, either killing them or driving them from their homes, in the interest of “cleansing” the region of its Albanian population. It is also, frankly, not to affirm the latter. The fact is that for information even about alleged “Serbian” atrocities committed after the start of the NATO attack, we have hitherto been almost entirely dependent upon NATO sources. Under these circumstances, intellectual honesty demands that we withhold judgement—an attitude, incidentally, whose prudence has been largely confirmed by recent revelations.14 In any case, it remains true that there is no evidence of such aggression by Serb forces against the civilian population before the bombing started.

If not, then, the victims or targets of a genocidal policy on the part of the Yugoslav state, were the Kosovo Albanians subjected to a process of political and civil exclusion analogous to that to which the German Jews were subjected by the German State in the Third Reich? Here again, the facts—and now we are dealing with straightforward institutional facts which are easily verifiable by anyone—simply do not support such a conclusion. The pivotal event in the conflict opposing the Yugoslav federal and Serbian provincial states on the one hand, and the Albanian nationalist leadership in Kosovo on the other, was the 1989 reform of the Serbian Constitution, which reduced the autonomous powers of the province. This reform did not in any way affect the political and civil rights of individual Kosovars as citizens of the Yugoslav Federation and the Serbian Republic. These continued to be guaranteed to all citizens of the Federation and the Republic, regardless of self-proclaimed or ascribed nationality. Even this guarantee, however, was not a concession, but rather an affront to the aspirations of the provincial leadership. For these aspirations did not concern the civil rights of Kosovo Albanians, but rather the communal or “group” rights claimed on their behalf. It was the communal rights of Kosovo Albanians inasmuch as a so-called “national minority” within Serbia and Yugoslavia that the constitutional reform was perceived to have infringed upon and their communal prerogatives, as created by the 1974 Yugoslav Constitution, that it did indeed reduce.15

Now, the notion of national “minority rights” is a notoriously slippery one. On a liberal interpretation of the expression—and this was the intepretation which held sway in international jurisprudence until very recently—such rights are strictly linguistic or cultural in character and, in fact, belong to the individual. They are the rights of an individual who so happens to form part of a linguistic or cultural “minority” freely to employ her native tongue and to give expression to other aspects of her cultural heritage. Obviously, when we begin to consider the concrete institutional contexts in which such rights might be claimed—the school, the courts, the legislature—the scope of their validity becomes itself a complicated matter.

When, however, the subject of “minority rights” is understood as the “national minority” itself, i.e., the group, and when the “minority” in question in fact constitutes the majority on some part of the national territory, then the content of such “rights” will invariably take the form of communal self-government within the relevant region. Inasmuch, however, as the population of the region in question is itself ethnically heterogenous, this will require either that the “group rights” of the local “minorities” are guaranteed in turn or the degradation of the status of the latter, in effect, to “second-class citizens” (or, more precisely, provisionally tolerated “state-members,” analogous indeed to the German Jews under the Third Reich) with all the dangers of eventual expulsion or worse which this comports. Indeed, the discrimination and insecurity suffered by non-Albanians in Kosovo under the pre-1989 autonomous regime clearly contributed to their agitation and to the agitation within the Serbian Republic as a whole for a modification of the province’s status.

Though the western media, French nouveau philosophes, and NATO officials have somehow managed to depict such ethnic-national minority politics as the model for “multiculturalism,” they are obviously rather the perfect recipe for what could be more accurately described as juxtaposed monoculturalism. Their immanent logic is such that the only stable outcome to which they can lead is not in fact a regime of protected “minority rights” within the framework of existing political structures, but rather full-fledged secession and the creation of new ethnically homogenous “microstates” under the banner of “national self-determination” (with the prospect, in the case of “microstates” geographically contiguous to a larger ethnic-national “homeland,” of eventual attachment to the latter). More exactly, where the population of each of the erstwhile national regions is likewise ethnically “mixed” and their own “national minorities” constitute in turn local “majorities,“ what can be expected is a nesting pattern of secessions followed by civil war to determine what parts of the fragmented national territory will pertain finally to which “ethnicities.” So-called “ethnic cleansing” is likewise a completely “normal” aspect of this process, inasmuch as once the principle of ethnic-national “self-determination” has been accepted, the spiral of dissolution and intercommunal violence can only be halted when the populations of the new national territories have obtained the requisite degree of homogeneity. The dynamic here described is exactly the dynamic that has played itself out in the territory of the former Yugoslavia. Even the much-vaunted and reputedly “multicultural” Federation of Bosnia and Herzegovina is, in fact, a largely fictive state invented by the western powers and masking the existence of not two but, effectively, three independent and juxtaposed ethnic-national “microstates” dividing the Bosnian territory.16 Those KFOR officials, media commentators, and western political leaders who today denounce the violence committed against the Serbian population in Kosovo and bemoan the exodus of the latter from the region can hardly be supposed ingenuous in their expressions of fellow-feeling. The “cleansing” of Kosovo of Serbs and other “minorities” was a completely predictable consequence of the project of ethnic-national state-building to which NATO lent its military support.

Of course, if “self-determination” is interpreted simply as rule “with the consent of the governed”—as according to Lloyd George’s famous formula from 1918—then the demand for “self-determination” need not lead to the consequences described above. In this case, “self-determination” is barely more than a synonym for democratic government, with the added connotation of local rule when the demand is raised against the claims to authority of a colonial or imperial power. The problems arise, however, when the “nation” whose “self-determination” is in question is construed not as a politically constituted community, but rather as an ethnic group whose communal character is supposed in principle to pre-exist the state. In this latter case, the “right of national self-determination” is transformed into the ostensible right of each “nation” in this ethnic sense to form its own state.

In any event, the struggle of German Jews following the rise to power of the Nazis was a defensive struggle to protect their civil rights as individuals against the discriminatory and exclusionary policies of the Nazi state. It was not a struggle to protect any “minority rights” that they might be supposed to claim or enjoy as a group, much less to assert any supposed collective right to “national self-determination.” (There were, of course, Zionist groups in Weimar Germany, but it is highly implausible to suppose that even the most optimistic of them expected to secede from the German Reich with some part of German territory!) The Nazi state did not seek to withdraw from Jews any “minority rights,” since they had never been ascribed nor, for the most part, had they demanded any such rights in the first place. In fact, the opposite is the case. It was precisely the Nazi state’s withdrawal of their political and civil rights and its exclusion of the Jews from ever widening domains of normal civil activity, as noted above, which led to the formation within the now isolated or “abgesonderten“ Jewish community of just those institutions typically associated with self-government under a regime of “minority rights.” Thus it was only in the autumn of 1933 that a political organization supposed specifically to represent the interests of German Jews, the Reichsvertretung der Juden in Deutschland, was founded. Similarly, in 1933, as an emergency response to the School Law of April 25, which established a numerus clausus on Jewish enrollment in high schools and universities, Jews were, in effect, forced to establish independent “Jewish” schools. By the end of 1936, there had likewise developed an independent Jewish welfare system, an independent Jewish healthcare system, and a full-fledged, if shrinking on account of immigration, “Jewish economic sector.” There were even now the rudiments of a “Jewish” judicial system, drawing on the tradition of rabbinical courts, which offered arbitration of civil disputes among Jews and hence allowed them to circumvent the hostile environment of the German courts.17

The founding of almost every one of such autonomous “Jewish” institutions bears a clear, if superficial, resemblance to developments among the Kosovo Albanian community of the 1990s: the establishment of an independent Kosovo Albanian government in 1991, the founding of specifically “Albanian” educational and healthcare systems, the application of the Kanun, the traditional unwritten law of the Albanian clans, and so on. But, in fact, the contrast between the two cases could not be starker. Following the 1989 re-assertion of Serbian sovereignty over the territory of Kosovo, the political leadership of the Kosovo Albanians chose to boycott the institutions of the Serbian state and to establish parallel, ethnically specific “Albanian” institutions. This does not lessen the repressiveness of the Serbian state’s response to the national aspirations of Kosovo Albanians: a response that was inevitably all the more repressive in light of the fact that the Yugoslav federation, under the provisions of its 1974 constitution, previously had largely catered to these aspirations. But we should be clear, at least, that this response was directed precisely at national aspirations which, in principle, rejected the authority of the Serbian state and which, even before 1989, had aimed to organize the institutions of public life in Kosovo along ethnic lines.

German Jews under the Third Reich were, by contrast, forced to establish parallel institutions by virtue of their being excluded from the institutions of the German state. In effect, it was the Nazi regime that transformed German Jews into an ethnic “community” with a special status as such under the law. They did not themselves demand this status. For German Jews, whose newfound institutional “autonomy” was not matched by any claim to territorial sovereignty, this process was the prelude to expulsion and, for those who did not succeed in escaping beyond the borders of the Reich and the occupied territories, extermination. For Kosovo Albanians, the process of political affirmation of their autonomous status was rather the prelude to de facto secession—and indeed to the expulsion of non-Albanian, ethnically “foreign” elements from the newly “liberated” national territory.

Precedent and Perspectives

It can only be regarded as the symptom of a severe deterioration of historical consciousness that amidst all the allusions to the Second World War and the Third Reich which accompanied the public treatment of the Kosovo crisis, a more obvious analogy for the latter, from exactly the same historical context, was almost completely ignored: namely, the Sudetenland crisis of 1938. The similarities between the two cases can be appreciated from the comments of a contemporary, written on September 23, 1938:

For almost two decades now, and among various other nationalities, also Germans in Czecho-Slovakia have in the most unworthy fashion been abused, tormented, economically ruined and above all prevented from realizing the right of self-determination of nations also for themselves. All attempts by these oppressed people to alter their fate have failed on account of the brutal will to destroy of the Czechs. The latter possessed the state’s means of repression and did not hesitate to use them in a ruthless and barbaric manner.

The author of these words is, of course, Adolf Hitler. In his letter to Neville Chamberlain, written during a break in their consultations at Bad Godesberg, one week prior to the signing of the Munich Agreement, Hitler goes on to cite a figure of 120 thousand refugees having already been forced to flee the region, and demands the immediate severing of the Sudetenland from Czechoslovakia—in the absence of which the German Wehrmacht would take control of the Sudetenland by force.18 Hitler’s grim depiction of the urgency of the Sudeten Germans’ plight drew support from the crescendo of atrocity stories which Goebbels’ Propaganda Ministry had disseminated in the German press over the previous weeks and which appeared under headlines such as “13 More Blood-Witnesses for Sudeten-German Right to Self-Determination: Arson Attacks, Murder, Martial Law, Foreign [i.e., Czechoslovak] Police and Soldiers with Tanks Rage Against the German Population;” and “Bloody Butchery in Halbersbirk: With Tanks and Machine-Guns Against a Sudeten-German Village;” and “Czech Orgy of Murder in the Sudetenland;” and “Bestial Abuse of Sudeten-Germans in the Prisons;” and even, dramatically portraying the putative threats of the “bestial” Czechs, “We Will Play Football with Your Heads.”19

But while it was the alleged atrocities committed against the Sudeten-Germans which were used as propaganda to hasten the intervention, Hitler also insisted upon a quasi-legal justification for the severing of the Sudetenland from Czechoslovakia: namely, the very “right of national self-determination” which is so often invoked today (even indeed by critics of the NATO attack!) in connection with Kosovo. Of course, Hitler claimed to be especially concerned for the “right to self-determination” of the Sudeten-Germans, but he presented himself in his meetings with Chamberlain also as the advocate for the other allegedly “oppressed national minorities” in Czechoslovakia: Poles, Hungarians, Ruthenians, and Slovaks. Just a few months later, he would appear yet again as the patron of aspirations to national “self-determination” in orchestrating the secession of Slovakia from rump Czechoslovakia.

Hitler’s letter to Chamberlain rehearsed much of the same content as his closing speech to the Nazi Party Congress on September 12. “I demand,” he said there (in somewhat unusual German), “that the oppression of 3 Million Germans in Czecho-Slovakia come to an end and that the free right to self-determination take its place [an dessen Stelle tritt].”20 Indeed, already in a Reichstag speech of February 20, 1938, Hitler had made clear his plans for the Sudetenland. The Reichstag speech is especially interesting for our purposes, since in it Hitler explicitly recognizes that the “right to national self-determination” could only be fulfilled at the cost of the violation of international law, understood in the customary sense as the law guaranteeing the rights of and governing the relations among sovereign states. Speaking of the Sudeten-Germans and their relation to the German Reich, Hitler comments: “The juridical separation from the Reich as far as international law is concerned [die staatsrechtliche Trennung vom Reich] cannot lead to a national-political lawlessness [zu einer volkspolitischen Rechtslosmachung], this is to say that the universal rights to national self-determination…cannot be ignored simply because Germans are here concerned.”21 The Nazi legal theorist Carl Schmitt, writing just after the dissolution of Czechoslovakia and shortly before the German invasion of Poland, called the idea of ethnic-nationhood—of “each and every people [Volk] as a form of life determined by kind and origin, blood and soil”—the “great political idea” which it would be the vocation of the German Reich to disseminate throughout Europe. “The deed of our Führer,” Schmitt concluded, with obvious reference to Hitler’s “solution” of the “Sudeten question,” “has infused this thought of our Reich with political actuality, historical truth and a great future in international law.”22

The “great future” that Schmitt foresaw in 1939 turned out to be a catastrophe for Europe that lasted exactly until May 1945. However, in the wake of the NATO attack on Yugoslavia, political leaders of the NATO alliance, so-called “human rights” advocates and leading political theorists in both Europe and the United States have all been displaying a notable enthusiasm for the subordination of states’ sovereignty to the alleged “rights” of ethnic-nations or “peoples.” The “great future” of Schmitt’s “great idea” might well be now, and there is no reason to expect that its current realization will prove any less catastrophic than its first. One thing, in any event, is certain: the struggle of German Jews under the Third Reich was not a struggle for “self-determination” in the ethnic-national sense. It was, on the contrary, the application of the ethnic-national “principle of self-determination” under Nazi hegemony that eventually made the very existence of Jews and other “stateless peoples” in occupied Europe untenable.

Notes

  1. Goldhagen himself, who, whatever the virtues or otherwise of his book on Nazi Germany, has given no sign of actually knowing anything about the Balkans or Yugoslavia, nonetheless substantially contributed to the popular currency enjoyed by this analogy. See Daniel Jonah Goldhagen, “A New Serbia,” The New Republic, May 17, 1999. I use the term “Holocaust” in scare-quotes, by the way, because it is quite literally a mystifying expression and hence, to my mind, in general better avoided. The Greek holocauston is the biblical term for a burnt sacrifice.
  2. Associated Press, March 29, 1999. For the enthusiastic uptake of the Defense Minister’s remark in the boulevard press, see, for example, “Scharping: Völkermord an den Albanern hat begonnen,“ Berliner Kurier, March 30, 1999. Curiously, some three weeks later, Scharping spoke merely of “increasingly strong indications of mass executions.” (See “Protokoll des Grauens,” Berliner Kurier, April 20, 1999 and Associated Press, April 19, 1999.) How did he know, then, three weeks earlier, that “the genocide had begun?”
  3. Associated Press, April 16, 1999; and see “Fussball mit den Köpfen der Opfer,” Berliner Kurier, April 17, 1999. In a similar register, German Minister of Foreign Affairs Joschka Fischer remarked that the Serbs were even taking away the toys of Albanian children—before himself returning to the “Holocaust” allusions by describing the flight of Albanian refugees from the region as a “deportation.” See “Serben nehmen Kinder sogar ihr Spielzeug weg,“ Berliner Kurier, April 4, 1999. As will be seen further on in the main text, Scharping’s “soccer” atrocity story was not exactly original.
  4. In fact, though the identity of the victims has changed, the “Holocaust” association has been a standard trope of anti-Serb propaganda at least since 1992 and the first reports of alleged “deathcamps” in Bosnia. On the twisted history of such reports, see, for example, Peter Brock, “Dateline Yugoslavia,” Foreign Policy, no. 93, Winter 1993-94; Jacques Merlino, Les vérités yougoslaves ne sont pas toutes bonnes à dire (Paris: Albin Michel, 1993), pp. 125-32; and Thomas Deichmann, “The Picture that Fooled the World” in NATO in the Balkans (New York: International Action Center, 1998).
  5. On the process of exclusion of the German Jews under National Socialism, see Karl Schleunes, The Twisted Road to Auschwitz (Urbana: University of Illinois, 1970); Wolfgang Wipperman and Michael Burleigh, The Racial State: Germany 1933-1945 (Cambridge: Cambridge University Press, 1991), ch. 4; and Avraham Barkai, From Boycott to Annihilation: the Economic Struggle of the German Jews, 1933-1943 (Hanover: University Press of New England, 1989). More generally, on the history of German citizenship law and the ius sanguinis, see Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992).
  6. In fact the decree’s derivation of the status of the “half-Jew” with two “Aryan” parents involves a classic example of the reductio ad absurdum. According to the decree, a “half-Jew” with two “Aryan” parents—unlike a “half-Jew” with one “Jewish” and one “Aryan” parent—would not count as a “Jew.” But by definition the “half-Jew” must have two “Jewish” grandparents. Hence one of the grandparents of each of the parents of the “half-Jew” who does not have one “Jewish” and one “Aryan” parent (i.e., who has two “Aryan” parents) must him- or herself be “Jewish.” But by definition of the law, a “half-Jew” one of whose parents is “Jewish” is a “Jew.” Hence the “Aryan” parents must be “Jewish.”
  7. Indeed, inasmuch as the Federal Republic recognizes claims to German nationality based on the collective naturalizations of putative ethnic Germans in the occupied territories undertaken by the Nazi regime, the 1913 law is still today interpreted through the lens of its radicalization by the National Socialists.
  8. The revised version of the citizenship law reform, passed by the two houses of the German parliament in May, will ascribe German citizenship to children born in Germany of “foreign” parents for, in effect, a probationary period. By the age of 23, such “foreign children born in Germany” must decide between retaining their German passport or a passport issued by their parents’ presumed ethnic-national “homeland” (thus, for example, Turkey for persons of presumed Turkish ancestry, whether or not they were themselves born there). In an analogous fashion, candidates for naturalization will under “normal” circumstances be required to renounce the citizenship of their countries of origin. Under present conditions, this refusal of so-called “dual-citizenship” will create serious disincentives for both these categories of prospective citizens. In any event, the reformed version of German citizenship law, like the hitherto existing law it replaces, remains implicitly racist and discriminatory, since it does not in principle or in fact deny the possibility of “dual-citizenship” to “German nationals,” i.e., putatively ethnic Germans. German law distinguishes between the latter [deutsche Volkszugehörige] and German citizens [deutsche Staatsangehörige], and guarantees “nationals” the right, supposing they were born in Germany, to acquire the citizenship of another country without foregoing their German citizenship, and the right, supposing they were born elsewhere, to acquire German citizenship without foregoing the citizenship of their country of origin.
  9. Though here too, it must be said, there are parallels. Thus, in 1997, Germany’s so-called “Foreigner Law” was revised such as to require that children under sixteen who are not citizens of an EU member state obtain a visa in order to travel to Germany to join parents living there. Given the peculiarities of existing German citizenship law, this stipulation applies, among others, to German Turkish children born in Germany who happen in the meanwhile to have traveled abroad. In other words, these children must currently apply for a visa in order to be able to return home. At least as concerns children henceforth born in Germany, this particular anomaly should be eliminated with the citizenship law reform.
  10. Formally considered, the 1935 Citizenship Law did not quite complete this process, since while it deprived the German Jews of citizenship [Reichsbürgerschaft], it continued to attribute to them the subordinate status of “state members” [Staatsangehörige]. The German Jews lost even this latter status upon “taking up residence” in a foreign country—even if this came to pass by way of deportation. See Brubaker, pp. 167-168. The distinction between Bürgerschaft and Staatsangehörigkeit does not, incidentally, exist in current German law, which is why in this latter context both the one and the other can be translated without further ado as “citizenship.” (See note 8.) Apart from the rare cases of naturalized citizens, German Turks do not even enjoy the status of “state members.” Their status is quite simply that of foreigners legally resident in Germany.
  11. In fact, having been pressured to emigrate in the years leading up to the war, a relatively smaller percentage of German Jews were murdered by the Nazi regime than European Jews in general; and the German Jewish victims of the regime represent only a small percentage (just over 2 percent) of the total number of Jews murdered.
  12. It has also become acceptable, for instance, in the halls of the German Bundestag where, since 1992, sessions devoted to Balkan politics have featured constant references to “genocide” by representatives of all parties except the post-Communist PDS.
  13. See Le Figaro, January 20, 1999; “Les morts de Racak ont-ils vraiment été massacrés froidement?,” Le monde, January 21, 1999; and “Racak: les victimes ‘tuées par balles à distance, selon des legistes’,” Agence France-Press, February 23, 1999. Photos provided to the press by Rudolf Scharping in late April, and allegedly documenting another Serb-orchestrated “massacre” from January, clearly depict fallen combatants, complete with cartridge-belts, automatic weapons, and KLA insignias on their uniforms. The news agency Reuters responded to Scharping’s supposed “revelation” by indicating that it had already published photos of the scene and that the dead were KLA guerrilla. See “’Massaker schon vor Rambouillet’,” April 28, 1999, Berliner Zeitung. Interestingly, in a recent interview with Le monde, French Minister of Defense Alain Richard casually remarks that the NATO attack was “organized starting in autumn 1998,” a date which suggests that NATO was not in any case responding to internal events in Kosovo. See “Instaurer des critère de convergence peut inciter efficacement des Etats européens à une défense commune,” Le monde, July 14, 1999.
  14. See, for example, “No Bodies at Rumored Grave Site in Kosovo,” Reuters, October 12, 1999. Immediately after the cessation of hostilities in June, ten thousand was the figure which began to circulate as representing the number of Albanians killed by Serb forces after the inception of NATO bombing. But even supposing this figure were to withstand scrutiny as a general casualty figure, who can honestly say that every body found is that of an Albanian, rather than of a Serb or Roma or ethnic Turk? And does the mere discovery of a body tell us who did the killing and under what circumstances? Again, there is no question that the KLA has in the past itself conducted reprisals against ethnic Albanians who refused to cooperate with it. In early August, Bernard Kouchner raised the figure to eleven thousand, claiming to cite information gathered by the International Criminal Tribunal for the former Yugoslavia—which quickly denied that this was its estimate. (See Le monde, August 4, 1999.) KLA militants are evidently less discrete than UN “high representatives” when discussing the origins of Kosovo’s war-dead. Thus the KLA appointed “mayor” of the town of Malicevo, reflecting upon the battles that took place in the area, casually remarked to a French reporter: “We had 300 dead, but the Serbs lost at least twice as many ….” See “Les soldats russes subissent la vindicte des Albanais,” Le monde, August 3, 1999.
  15. The reason for the cautiousness of my formulation here is that it is not clear that the prerogatives enjoyed by the Kosovo Albanians under the 1974 Constitution were the result of any generally recognized “right.” The Serbian “autonomous provinces” of Kosovo and Voivodina had an exceptional status within the Federation; although Republics besides Serbia also comprised territories in which “nationalities” other than the “titular” ones (as in the “Croatian nationality” in Croatia or the “Macedonian” in Macedonia) constituted the local majority, none of these territories was accorded autonomy.
  16. For a detailed discussion of “minority rights” and the logic of ethnic-national state-building in the Balkans, see Robert Hayden, Blueprints for a House Divided: the Constitutional Logic of the Yugoslav Conflicts (Ann Arbor: University of Michigan Press, 1999). Specifically on Bosnia-Herzegovina, see Part 2.
  17. On the foregoing, see Barkai, ch. 2.
  18. The full text of the letter is reproduced in Max Domarus, Hitler: Reden und Proklamationen (Neustadt: Verlagsdruckerei Schmidt, 1962), pp. 916-918. Hitler intentionally wrote “Tschechoslowakei” with a hyphen as “Tschecho-Slowakei,” in order to emphasize the “ethnographic” distinctness of its “Czech” and “Slovak” components.
  19. See Engelbert Schwerzenbeck, N-S Pressepolitik und die Sudetenkrise 1938 (Munich: Minerva, 1979), pp. 356 and 362.
  20. See Domarus, p. 904.
  21. See Ernst Nittner, ed., Dokumente zur Sudetendeutschen Frage (Munich: Ackermann-Gemeinde, 1967).
  22. Carl Schmitt, Völkerrechtliche Grossraumordnung (Berlin-Wien: Deutscher Rechtsverlag, 1939), p. 88.

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