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The London School of Economics and Political Science From Nomos to Hegung: War Captivity and International Order Johanna Jacques A thesis submitted to the Department of Law of the London School of Economics for the MPhil/PhD Law Page 1 of 195 Page 2 of 195 DECLARATION I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 65,198 words. Page 3 of 195 Page 4 of 195 ABSTRACT In World War II, millions of men found themselves at one time or another in war captivity. Their daily lives in captivity have been documented in memoirs and historical studies, but despite the abundance of detail, the experience of war captivity as an experience of exclusion remains un-theorised. Western POWs held by Germany in particular were excluded not only from further involvement in direct combat, but also from the states of exception associated with the foreign slave labour and the racial persecutions particular to Germany at the time. While all around them people were killed for a number of reasons, their lives were protected – and in the case of Jewish soldiers extraordinarily so – for no other reason than to keep them alive. The first part of the thesis uses Carl Schmitt’s work on sovereignty and nomos to situate the POW camp within the framework of an international order where war is bracketed – gehegt. This order reveals itself as an order of war, in which law takes the role of the sovereign in guaranteeing the order. The second part then turns to the exception to this order, the POW camp, analysing its juridico- political situation on the example of Jewish POWs from Western forces held by Germany in the Second World War. The third part of the thesis looks at the war- time experiences of Emmanuel Levinas, who spent five years as a POW in Germany. The struggle Levinas’s work exhibits with the experience of captivity exemplifies this experience’s ultimate meaninglessness, and raises questions about the possibility of subjectivity without engagement. Page 5 of 195 Page 6 of 195 TABLE OF CONTENTS 1. Introduction................................................................................................... 9 2. Sovereignty .................................................................................................. 15 2.1. Nomos ........................................................................................................ 17 2.2. The constitutive outside ............................................................................. 26 2.3. Sovereign nation states and recognition .................................................... 42 2.4. Hegung....................................................................................................... 52 3. The exception............................................................................................... 70 3.1. Jewish POWs in Nazi Germany................................................................. 75 3.2. Work .......................................................................................................... 93 3.3. Engagements............................................................................................ 111 4. Consequences ............................................................................................ 135 4.1. In the camp............................................................................................... 141 4.2. After the camp ......................................................................................... 157 5. Conclusion ................................................................................................. 179 Bibliography..................................................................................................... 181 Page 7 of 195 Page 8 of 195 1. Introduction Contemporary literature on sovereignty treats the concentration camp as the spatial paradigm of the state of exception. In the camp, law as the protector of individual rights is suspended, while sovereign power reins unrestrainedly. Through the association with the concentration camp, the state of exception has become synonymous with the abuse of power and the decline of the rule of law. In this, it did not merely get a bad name; since Agamben’s diagnosis that the state of exception has increasingly become the rule, characterising the ‘political space of modernity’ (Agamben, 1998, p. 174) and even constituting the ‘nomos of the modern’ (p. 166), it has become the ground from which a more just political community must lift itself. Moreover, because it is law itself that, so Agamben argues, produces and depends on the exception for its establishment, revealing law not as the solution to the problems of political modernity, but as their cause, a simple return to the rule of law will not lead out of this political space. What is required, rather, is nothing less than a ‘completely new politics’ (Agamben 1998, p. 11). But what if Agamben’s turn to a new politics were itself found to be merely symptomatic of a more prior need to escape something already other? What if, after the Second World War, those who returned from the war to rebuild the world returned from entirely elsewhere, beyond the law- exception complex? In World War II, millions of men found themselves at one time or another in war captivity. Davis (1977, p. 162, footnotes omitted) provides indicative figures: Estimates for the second world war are somewhat inflated, since that conflict ended with the collapse of the German state and the unconditional surrender of Japan. Therefore entire armies of the vanquished powers became prisoners of war during the last six months of 1945. These last-stage capitulators drive the highest estimate for the second world war up to 35,000,000. Although many of these were detained to work on postwar reconstruction projects, less than half that number could have been involved in the wartime economies as prisoners. On the other hand, Henri Michel's minimum estimate of 12,000,000 is probably Page 9 of 195 too conservative. Germany alone captured up to 8,000,000 prisoners; and the USSR took some 3,000,000 Germans and a few hundred thousand others by the end of the war. Great Britain took over 3,000,000 but brought only about a quarter of a million into the United Kingdom. France captured about 250,000 Germans in 1944 and 1945 and received another 700,000 from the British and Americans for postwar reconstruction. The United States accepted the surrender of about 4,000,000 enemy troops during the second world war and interned some 435,000 of them in the United States. Despite these numbers, war captivity remains under-theorised in legal scholarship. This may partly be due to the embryonic state of broader historical scholarship on war captivity. Bischof et al. (2005, pp. 14-15), for example, note that despite significant progress in this respect over the last twenty years, historical scholarship from a global comparative perspective on war imprisonment in the Second World War is only in its beginning stages. And while there is much legal scholarship on the laws relating to POWs, most of it is narrow in focus, concentrating on specific norms and legal arrangements (Overmans, 1999, p. 487). The reasons for this are only too clear: Even if one merely considers POWs captured by Germany in the Second World War, the treatment and consequent experience of captivity varied to such an extent as to make generalisations all but impossible. How, for example, could one liken the experiences of French officers like Fernand Braudel or Paul Ricoeur, who were teaching and researching at the ‘camp universities’ they helped set up during their stay in captivity,1 with those of Soviet prisoners left to die of disease and starvation in open fields? Before even considering other factors, this divergence 1 Ricoeur, for example, was not only able, with the help of a kindly guard, to borrow books from Greifswald university library while in captivity, but also started to translate Husserl’s Ideen I there (Ricoeur, 1998, pp. 16f). Braudel equally had access to an outside library for part of his time in captivity, during which he wrote his history of the Mediterranean, finding “the atmosphere of the camps conducive to his writing which rendered his mind ‘more lucid,’ and permitted him the time for ‘lengthy meditation on the subject’” (Dursteler, 2010, p. 65). Page 10 of 195 alone necessitates a historically narrow focus; there simply is no one ‘POW camp’ in the way in which one can speak of ‘the concentration camp.’2 However, despite this divergence of conditions in practice, there was a group of POWs whose position exemplifies like no other the place of war captivity in international order. This was the group of Western Jewish POWs held by Germany in the Second World War. Excluded from the hostilities of war as much as from racial persecutions, the politico-juridical situation of these POWs represents an almost complete mirror image to the situation

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