Neither Settler nor Native: The Making and Unmaking of Permanent Minorities

by Mahmood Mamdani

From the despair of genocide and war on unprecedented scale arose an opportunity to establish ground rules in international law to govern the behavior of states. That opportunity was squandered. In the words of Karl Jaspers, one of Germany’s most liberal, Western-oriented thinkers, the IMT “was, in effect, a singular proceeding of the victors against the vanquished, in which the foundation of a shared legal understanding and legal intention of the victorious powers was absent. It therefore achieved the opposite of what it should have. Law was not made, rather mistrust of law increased. The disappointment is … crushing.”

At Nuremberg, what was claimed to be an act of justice resulted merely in “the continuation of hostilities by means purporting to be judicial.” Instead of demonstrating the high ideals of Germany’s enemies and the rule-based order of which they boasted, the Nuremberg process served to undermine the rule of law. In doing so, it marred the denazification process generally, undermining the possibility of political reform in the wake of the Second World War.

Although Nuremberg featured countless hypocrisies and rule-of-law violations, it nonetheless left a large imprint on international law by developing the principle of individual criminal accountability for state acts. At Nuremberg, and now in the mission statements and rules governing institutions from Human Rights Watch to the International Criminal Court, the injustice wrought by states was depoliticized and repackaged as the responsibility of specific people who had done wrong or authorized others to do wrong. The tribunal did not invent this idea, but it was the first to successfully implement it.

Gary Bass has shown, individuals were first considered subjects of international criminal law following the collapse of the Ottoman empire at the end of the First World War, when the British demanded that certain Turkish leaders be held individually and criminally accountable for the Armenian genocide.9 The goal at the time was not only justice but also to use international law to hold down the vanquished state and the emergent Turkish Republic, which was at the time under a tenuous Allied occupation. Nuremberg would provide a more dramatic and influential repetition of this performance.

Furthermore, the concept of crimes against humanity originated earlier, in a colonial context in which it meant something very different. The notion of crimes against humanity arose in reference to atrocities unleashed by Belgium in the Congo more than a half century before the Holocaust; the term described acts so horrific that they transcend statutes of limitations. The charge was formulated in 1890 by George Washington Williams, a historian, Baptist minister, and lawyer and the first black member of the Ohio state legislature. After a visit to the Congo, he wrote a letter to the US secretary of state documenting atrocities committed by King Leopold’s colonial regime and concluding that Belgian conduct should be condemned as a “crime against humanity.”

When it came to the brutalization of Jews as a people before the war began in 1939—acts which were later understood as part of the Holocaust—the Tribunal declared that “revolting and horrible as many of these crimes were,” they would be exempt from the court’s jurisdiction: “The Tribunal cannot make a general declaration that the Acts before 1939 were Crimes Against Humanity within the meaning of the Charter.”

“On this basis, one could reasonably conclude that Nuremberg was more about dictatorship and aggressive war—that is, about ‘crimes against peace’—than about what would come to be known as the ‘Holocaust’ or at least about the racial policies of Nazi Germany toward German Jews,” Olick concludes, “though that is the opposite of how Nuremberg has been remembered.”

Thomas’s criticism points to another failure of Nuremberg: that the defendants were tried by the parties they were accused of injuring. All the judges involved were appointed by the Allies, who also provided the Statute of the Tribunals, determined the rules of evidence, and arranged the prosecutors. This was a clear warning that Nuremberg would be unable to provide justice—that it could dispense only victor’s justice, which would focus on acts by the indicted parties while ignoring similar acts—which I discuss below—committed by the Allies. Such a court cannot be seen as legitimate in a rule-of-law system. It is for this reason that, today, bodies of international arbitration such as the Permanent Court of International Justice at The Hague demand that judges be citizens of states that are neutral with respect to the proceedings.

Altogether, in excess of half a million died in Anglo-American raids on residential areas, yet the Allied commanders and their political bosses faced no judgment at Nuremberg.

As Sven Lindqvist has detailed, aerial bombing was developed by Italians in Libya and Somalia.23 No one called it a war crime in the colonial circumstance. This fact was not lost on Aimé Césaire; after the Second World War, he observed that the Nazis had crossed the line not by using weapons of mass destruction but by “applying to Europe colonialist procedures which until then had been reserved exclusively for the ‘Arabs’ of Algeria, the ‘coolies’ of India and the ‘niggers’ of Africa.”24 Of course, when the Allies applied the same colonialist procedures in Europe, they spared themselves judgment.

Indeed, had the Allies allowed a different kind of reckoning, one that did not seek to impose individual punishment, but instead sought to understand how fascism proved so attractive, they might have realized that the war was an inevitable consequence of the colonial order: denied empire, Germany had exploded into Europe.

The mass evacuation of ethnic Germans in Eastern and Central Europe during and after the Second World War came in three overlapping phases. The first was the organized evacuation of ethnic Germans by the Nazi government in the face of the Red Army’s advance from mid-1944 to early 1945.26 The second was the disorganized flight of ethnic Germans immediately following the defeat of the German military. The third phase, which is our focus, was the organized expulsion that followed the Potsdam Agreement signed by the victors in the summer of 1945.

This postwar expulsion was not simply punishment visited on the defeated. The Allied goal was to create ethnically homogeneous nations within redefined borders, normalizing the nation-state in a region with a legacy of multiethnic and multinational populations.

The disentanglement of populations which took place between Greece and Turkey after the last war … was in many ways a success, and has produced friendly relations between Greece and Turkey ever since.

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Mass displacement was accomplished through state-sponsored terror. There were “forced marches in which inhabitants of entire villages were cleared at fifteen minutes’ notice and driven at rifle-point to the nearest border.” In scenes reminiscent of the Holocaust, they were packed into trains with “up to 80 expellees crammed into each cattle car without adequate (or, occasionally, any) food, water or heating” and sent on journeys lasting weeks. “Hundreds of thousands of detainees” were herded into former Nazi concentration camps including Auschwitz and Theresienstadt, which were “put to a new purpose,” Douglas writes. Red Cross officials recorded the brutal regime in the camps, “with beatings, rapes of female inmates, grueling forced labour and starvation diets of 500–800 calories the order of the day.” Children were routinely “incarcerated, either alongside their parents or in designated children’s camps.” The British Embassy in Belgrade reported in 1946 that the conditions of Germans in Allied concentration camps “seem well down to Dachau standards.” The refugees who finally arrived in Germany were “declared ineligible by the Allied authorities to receive any form of international relief.” Lacking accommodation in a bomb-ravaged country, many “spent their first months or years living rough in fields, goods wagons or railway platforms.” Death followed devastation. The most conservative estimates put the number of Germans who died during relocation at about five hundred tho...

The very Allies who at Nuremberg tried Nazi leaders on charges of carrying out “deportation and other inhumane acts” against civilian populations did the same thing less than a hundred miles away. This is why the first draft of the UN’s 1948 Genocide Convention outlawed the “forced and systematic exile of individuals representing the culture of a group,” but the final version did not. The provision was deleted at the insistence of the US delegate, who pointed out that it “might be interpreted as embracing forced transfers of minority groups such as have already been carried out by members of the United Nations.”

The postwar expulsions did indeed create a new Europe in which territorial borders reflected ethnic divisions. But that only exacerbated the ethnic divisions, leading to nationalist excesses. In this, the violent reconfiguration of Europe is not unlike that of the postcolonial states, where some of the same victors drew boundaries into which they separated other formerly multinational people—people who, once penned, became violent nationalists themselves.

expiatory

This is what Nuremberg offered. The sacrifice of individual Nazi bodies—some placed in prisons, others executed—with no serious interrogation of the Nazi mind or its deep inheritance from and sympathy with the nationalist and colonialist imagination and the institutions animated by it.

The French had embraced the Nuremberg process, but they were not prepared to extend denazification very far beyond the highest echelon of wartime leaders, for doing so would have ensnared thousands of Vichy collaborators. Among the Allies, the French were the first to turn over the denazification process to German authorities in their occupation zone.

The Soviets were the only Allies who actively pursued an alternative to collective guilt. As their participation at Nuremberg demonstrated, the Soviets supported the imposition of guilt on high-ranking individuals. And, in the immediate aftermath of victory, Stalin was prepared to see ordinary Germans raped, pillaged, and slaughtered in an orgy of vengeance. But when it came time for an organized policy of denazification, the Soviets decided that the public could be redeemed through agrarian and industrial reform and the cultivation of Germany’s internal antifascist forces. For a brief period, before Cold War exigencies and Stalin’s extremism took over, the Soviet occupiers attempted political transformation.

He distinguished four kinds of guilt, none of which could be imposed by the allies and collectively experienced in Germany. Criminal guilt was imposed on individuals in courts, and so could not be collective; political guilt belonged in theory to every citizen of the regime at fault, yet obviously could not be embraced by those who knew they were not in fact guilty of the regime’s offenses; moral guilt was a private affair, which could only be assessed by the individual; and metaphysical guilt, incurred by those who caused a “rupture of a fabric of basic solidarity between all human beings,” was judged by God alone. The kulturnation could not but reject such notions, but it could take collective responsibility and thereby maintain and achieve “social integration,” even as the political nation was a thing of the past.34 Andreas Huyssen considers Jaspers “the first to articulate German responsibility for Auschwitz in 1946 when the Holocaust was still very marginal in political debates.”35 Responsibility—not guilt.

Rather, he looked at what the Allies could not allow themselves to see: the lethality of the modern political order.

concatenation

That the guilt was not exclusively German but would have to belong to the world—more specifically, the Western world—was a common point of view among German intellectuals of many political persuasions, no matter their thoughts on the distinction between culture and state power. These thinkers rejected both reeducation and collective guilt because they saw the German crisis—and National Socialism in particular—as the outcome of larger forces like nihilism, secularization, mass society, and the telos of history. In the words of Carl Jung, the psychologist, “The moment we so-called innocent Europeans cross the frontiers of our own continent we are made to feel something of the collective guilt that weighs upon it, despite our good conscience.”

Neumann’s Behemoth: The Structure and Practice of National Socialism, published in 1942 and expanded in 1944, was one of the earliest and most influential studies of national socialism. According to Peter Hayes, Neumann argued that “Hitler’s regime was a chaotic, lawless and amorphous monster” whose “policies expressed sometimes overlapping and sometimes contending drives of the four symbiotic but separate power centers (the Nazi party, the German state bureaucracy, the armed forces and big business) that composed it.”46 As a result, Olick writes, “no mere regime decapitation followed by a superimposition of democratic structures would solve the German problem.” The problem was not just one of elected officials, and “the social foundations for such a [democratic] system did not yet exist.”

and convince Germans of their responsibility for the war. After Versailles, the size of the army had been drastically reduced, but that just left the “deadly bacillus” of German authoritarianism and militarism to recover, for neither had been stamped out among the Germans themselves.52 Looking back on 1918, the Allies were determined that this time would be different. There would be no negotiations, only unconditional surrender.

So determined were the Allies that Germany—and only Germany—should accept total responsibility for the war, that Austria was exempted from accountability, despite the fact that Austrians were as gung ho about Nazism as their German counterparts. In both countries, about 10 percent of the population were official party members, and there were still 536,000 registered Nazis in Austria at the end of the war. A total of 1.2 million Austrians, from a population of just under 7 million, had served in German units during the war. Judt pointed out that “Austrians had been disproportionately represented in the SS and in concentration camp administrations.

Germany could, and would, be reconstructed, and elections would be held. But denazification failed to impress guilt; it only fostered resentment. And democracy as the Allies understood it did not mean a repudiation of nationalism.

After amnesties and other reductions, just 930,000 chargeable cases were left.62 Within a few years, nearly all public officials dismissed by the Americans were reemployed, and all but a handful of those detained in labor camps were set free by 1950.

Paperclip was officially a “denial and exploitation program,” meaning “exploitation by the Western powers of Germany’s wartime scientific program and its denial to the Russians.” In contrast to Paperclip, Bower writes, “the operation to hunt down the murderers of nearly twelve million people did not even boast a codename, it had no trained staff, no headquarters, no plans and no priority.”

They “refused to issue entry paperwork and fought a stubborn battle of attrition with parts of the military.” Paperclip director Bosquet Wev was unapologetic: “Nazism should no longer be a serious consideration from the point of view of national security when the far greater threat of communism is now jeopardizing the entire world,” he explained. Only in 1947 was the impasse overcome, after General George Marshall, the newly appointed secretary of state, ordered that national security would take priority over denazification.

In all three of the Western zones, early zeal was quickly replaced by retreat. The program that began in 1946 was discredited within five years, both within Germany and among the Allies. Among the Allies, criticism often originated on the political right, as the red scare set in. An early such critic was General George S. Patton, who was installed as military governor of Bavaria in 1945. “What we are doing,” he wrote to his wife, “is to utterly destroy the only semi-modern state in Europe so that Russia can swallow the whole.” The Germans—even hard-core Nazis—were needed for the impending war against what Patton called “Mongol Savages.”76

Undoubtedly, many Germans were guilty of atrocities, and it can hardly be denied that Nazis had penetrated every sector of society. But from the standpoint of most Germans, the urgent need was not criminal justice but rebuilding. Whatever success the Allies had in removing Nazis from civic functions only made that task of rebuilding more difficult, as capable administrators were jailed or otherwise prevented from working.

Such resentments might have been mitigated had Germans been allowed some agency in denazification. Recognition that many Germans opposed Nazism and so made enormous sacrifices might have enabled partnership rather than friction. And it would have created the possibility of true transformation. The Allies, themselves driven by the nationalist imagination, were not in a position to fundamentally change German society and foster in it a new politics.

Allies refused to work with the surviving resistance on the suspicion that antifascist groups harbored communists and fellow travelers. For instance, when it entered the already-liberated city of Wuppertal, the US army disbanded the antifascist municipal council and police. The military government “didn’t want any ‘bolsheviks’ thinking they could take over now that the Nazis had been kicked out.”79 The Allied position infuriated the German left. Olick writes, “the German Left … argued strongly that Allied re-education programs blocked an indigenous German reckoning with the Nazi past.”

US and British military authorities also lost potential antifascist allies by undermining labor unions. From the perspective of unions, denazification required the affirmation of workers’ rights that had been stripped under Hitler—in particular, their right to organize. Yet US and British occupation authorities banned all union organizing and political activity. Trade unions were not allowed to negotiate wages, working conditions, or working hours.

Vice President Henry Wallace, influenced by the writing of leftist German emigres, “hoped that Germans would mete out justice to their own ‘Nazi overlords’, negating the need for denazification from abroad.” Among those who might have carried out that mission were leaders of the Social Democratic Party (SPD) who had been chased into exile. For example, the SPD politician Willie Brandt had an expansive sense that “not only Nazi party leaders and Gestapo terrorists” were guilty, “but also Junkers, big industrialists, generals, bureaucrats and professors who were involved and who unleashed terror and war.”83 Real change could have emerged from that perspective.

The Soviet experience of the war had been far worse than that of the Western powers. Soviet troops “had seen their own land devastated,” Frederick Taylor writes. “They were living witnesses of the fact that at least twenty-five million of their compatriots of all ages and both sexes had died in battle, or by massacre, and often by deliberate starvation—all in an aggressive German war of choice executed by Hitler’s forces with scant regard for even the most basic, minimally humanizing rules of conflict.”84 Not surprisingly, Soviet troops entering German territory were often driven by a spirit of revenge and took to looting, pillage, and rape.

That month, Stalin told German communist leaders “that the need of the hour was an anti-fascist parliamentary regime and that the time for the ‘Sovietisation’ of Germany was not yet ripe.” A US officer “ruefully noted that there were no ‘collective guilt’ posters in the Soviet zone.” Biddiscombe notes that the Soviets exculpated the small Nazis, which “became the source of considerable conflict with the Americans.”

A June 1946 plebiscite organized by German communists in the Soviet zone overwhelmingly approved the nationalization of around a thousand larger businesses or branches of businesses together employing more than a hundred thousand workers in Saxony alone. The vote was supported by 76 percent of the electorate.88 At no point were Germans in the Western zones asked to vote on policy under occupation.

Alongside radical socioeconomic reform, the Soviets promoted political change by turning to the Germans themselves. Although the Soviets did not hesitate to imprison and otherwise punish Nazi leaders, “ordinary members of the party and so-called ‘fellow travelers’ were to be rehabilitated.” Whereas JCS 1067 “called not only for the prosecution of the leaders of national Socialism, but for a widespread purge of complicit individuals from public life,” denazification in the Soviet zone called for the “rehabilitation” of ordinary members of the Nazi party and fellow travelers, according to Olick. He cites a minor former Nazi Party member, who hailed the approach at an assembly of former Nazis in support of the Socialist Union Party (SED): “Long live the SED, big friend of the small Nazis.”

One object of the Soviet political program was to encourage German anti-Nazis to organize and thereby transform occupation into liberation. The military government identified anti-Nazis and helped them organize political parties. The Soviets also encouraged their participation in local governments.

The final blow for political reform in the East came on June 17, 1953, when the East German government turned to the Soviet armed forces to crush a popular uprising. Bertolt Brecht, the great German dramatist and poet, memorialized the moment when it became clear that a new day would not be dawning after all: After the uprising of the 17th of June The Secretary of the Writers Union Had leaflets distributed in the Stalinallee Stating that the people Had forfeited the confidence of the government And could win it back only By redoubled efforts. Would it not be easier In that case for the government To dissolve the people And elect another?

Throughout the years 1945 to 1949, 60 percent of West Germans—a population totaling more than 50 million—thought that “Nazism was a good idea, badly applied.” In November 1946, a survey found that 37 percent of Germans in the American zone thought “the extermination of the Jews and Poles and other non-Aryans was necessary for the security of the Germans.” Another survey, from 1952, confirmed that nothing had changed: 37 percent of West Germans believed it was “better” for Germany to have no Jews in its territory. A poll taken a year earlier found that only 5 percent of West Germans felt guilty about the fate of the Jews.

What better evidence could there be that the Final Solution had worked? The Jews were gone, the handful of Germans responsible had paid for their crimes, and in just a few short years the country was reestablished as a responsible, even admired, participant in the global order. In the decades since, Germans have continued paying reparations to Israel, in absolution for their own violent nationalist project and in support of another.

In a 1998 lecture in South Africa, I asked the following question: When does a settler become a native? The answer, I believed then and believe now, is never. The native, I argued, is a creation of the settler state. The native is the settler’s invented other: the settler claimed not only to be defined by history but to be its maker, at the same time stigmatizing the native as an unthinking captive of unchanging custom and a product of geography. My conclusion was that settler and native are joined; neither can exist in isolation. Should you destroy one, the other would cease to exist. In the course of the struggle against apartheid, South Africans did something remarkable: they tried, with incomplete success, to destroy the settler and the native by reconfiguring both as survivors.

Above all, South Africans came to recognize that political identities are not permanent or natural. Activists overcame differences of race imposed on them—differences marked as African, Coloured, Indian, and white—to join in a single cause of breaking down apartheid. Afrikaners, once champions of apartheid, became part of the movement against it. These groups had been formed under colonialism as distinct and often rivalrous, their interests said to be naturally divergent. Because of the racial difference imputed to them, they were subject to different laws and granted different opportunities to participate in the political community, or sometimes no opportunity at all. But in response to apartheid, these people learned to think anew their political relation to each other: not as others or rivals but as equals in law.

In other words, South Africa attempted to decolonize, by breaking down the colonial distinction between settlers and natives and inviting them to participate in the same political community, with settlers reconfigured as immigrants.

What defined the settler was the law to which she was subject. Call it civil law. Equal subjection to civil law does not mean equality of subjects; settlers were not and are not treated equally.