Why did Hitler attack the Chinese people
If you want to understand what is happening in Hong Kong, you have to read a book about the Nazi era from the 1930s
For months, the Hong Kong demonstrators held their breath again and again: would it be on October 1st? On 1st of July? They waited for the day when Chinese tanks would roll through the streets of their city, just like what happened in Tiananmen Square in Beijing in 1989. It has not happened to this day.
We do not know what was going on in the Political Bureau of the Communist Party of China (CCP). But throughout the year, the Chinese military posted propaganda videos of their troops using tanks to suppress riots or chasing refugees in the city.
In the end, the Chinese government decided to advance with paper and paragraphs instead of tanks. It passed a new security law that, among other things, punishes criticism of China and creates a new secret service that can prosecute political activists. The Chinese government wants to destroy the Hong Kong rule of law with its own weapons - with laws. China is thus entering the path of Carl Schmitt, crown lawyer in Nazi Germany.
Taking inspiration from Carl Schmitt does not mean being a Nazi yourself. Schmitt's theories still influence right-wing and left-wing intellectuals in the West and, for some years now, China's leading constitutional lawyers (as this study shows, for example). But Schmitt legitimized the actions of the NSDAP with his works. Anyone who wanted to understand how Nazi Germany gradually abolished the rule of law had to read Schmitt - but also the books of his contemporary Ernst Fraenkel, his opponent, if you will.
He analyzed the "National Socialist Revolution" of German society proclaimed by the Nazis from within. Anyone who reads Fraenkel again today and applies it to Hong Kong will find the blueprint of an infiltration - and can better understand the future of Hong Kong.
The ruler decides what is right
Carl Schmitt loved authority. He was of the opinion: The ruler embodies the sovereign people in himself. Therefore everything that the ruler (or sovereign, as Schmitt would call him) declares to be legal is legal. So the government can break the constitution if it deems it necessary. This is the only way for the sovereign to ensure that the unity of the state remains intact. With Schmitt, the Nazis justified why they did not have to adhere to the Weimar Constitution: To protect the national community from danger.
This is just one of several ideas that made Schmitt famous. His concept of “the political” is at least as central. Schmitt explains politics primarily through the distinction between friend and foe of different groups, for example different countries. This thinking also shapes the New Right in Europe, as Rico Grimm shows here.
Fraenkel carefully examined how Schmitt's thoughts affected laws and courts in Nazi Germany in the 1930s. He describes how a so-called dual state developed: On the one hand, the Nazis used the fire in the Reichstag to override elementary basic rights for some people. They justified this with a “communist danger” which they had to ward off in order to preserve the unity of the “national community”.
A month after Paul von Hindenburg appointed Hitler Chancellor, the Reichstag went up in flames. The police arrested the left anarchist Marinus van der Lubbe, who confessed and said he did the crime alone. The Nazis declared themselves convinced that a communist conspiracy was behind it - and issued the so-called Reichtagsbrandverordnung.
Over the years, the Nazis labeled more and more opponents of the regime as communists, so that they could finally prosecute anyone they perceived to be an opponent. Fraenkel calls this uncontrolled rule the “state of measures”.
For the so-called national comrades nothing changed for the time being
But those who were not opponents of the regime and belonged to the so-called national community did not change their rights (for the time being): civil courts continued to rule on inheritance disputes, the same regulations still applied to building. So Hitler wanted to guarantee legal security for the "Volksgenossen". Therefore, economic life evidently continued to run according to the rule of law. Fraenkel speaks of the "norm state", where the old laws continue to apply. "If the implementing state does not take responsibility, the normative state may rule," writes Fraenkel.
He thinks: The norm state was necessary to stabilize the state of action, because without it the economy would not function. Fraenkel calls the state of measures and norms together the dual state.
Hong Kong becomes a twin city
With a few pages of paper, China brought precisely this dual state to Hong Kong: China established a permanent arbitrary rule, a state of action for people who, from its perspective, threaten “national unity” - for example when they publicly and loudly demand autonomy for Hong Kong. In addition, most of the norms of the rule of law still apply - after all, Hong Kong is one of the most important economic centers in Asia.
The city was never a real democracy: since Hong Kong's independence, China has decided who will be head of government. And in the parliamentary elections, the votes of the Hong Kong people are worth different amounts depending on the career path. But Hong Kong residents could criticize China in ways unimaginable in mainland China. Because the Hong Kong courts protect the freedom of expression of their citizens: inside.
An example of relative freedom: In 2005 the police arrested a member of the "Falun Gong" denomination, which is banned in China, when he protested in front of the Chinese central government's liaison office in Hong Kong. But the highest Hong Kong court acquitted the defendants. In the verdict, the judges emphasized that the city's independent judiciary must protect the freedom of expression of the people, even if they criticized the Chinese government.
When Hong Kongers took to the streets in 2014 to demand equal voting rights for all, as the Hong Kong mini-constitution promises for the distant future, the Chinese government made it clear that it would do everything in its power to prevent Hong Kong from becoming a democracy.
To this end, the government under the new President Xi Jinping reinterpreted the slogan "One country, two systems", from which Hong Kongers have always drawn a lot of hope. Following Schmitt's logic, the CCP argued that the primary goal must be to maintain the Chinese state as a unity. Hong Kong's “other system” should not endanger this unity. Therefore, what the Chinese government declared to be right applies - and not what is in Hong Kong's constitution. Since then, China has continued to restrict Hong Kong's room for maneuver.
China ensured that the Hong Kong courts disqualified six parliamentarians for their office because they had used their oath to make a political statement against China. And the Chinese secret service allegedly abducted the owner of a bookstore critical of China in Hong Kong in a night and fog operation.
The Hong Kong Security Act is full of alleged crimes that were not before
The Chinese government has now used Corona to completely end the Hong Kong special route in one fell swoop.
Just as the NSDAP used an appendix to the constitution to suspend the rule of law with the Reichstag Fire Ordinance in February 1933, the CCP used an appendix to the Hong Kong mini-constitution to introduce the National Security Act. In doing so, it has partially suspended the constitution.
Suddenly, behavior in Hong Kong is considered a crime that no one would have previously described as a crime. If Hong Kongers advocate autonomy, China punishes them harshly: Anyone who undermines the so-called basic system of the People's Republic of China or stirs up “unlawful hatred” among Hong Kongers against the Chinese government faces life imprisonment. Anyone who takes part will be jailed for a few years - and will no longer be allowed to stand for election.
In late July, a month after Parliament passed the Security Act, Hong Kong banned activists from the general election, including internationally renowned Joshua Wong.
Because these crimes are hardly defined, it is currently completely unclear when someone will be convicted. Is it enough to take part in a demo critical of China? Or do you have to organize them? It depends on when China understands something as "political". Exactly the same thing happened at the beginning of the Nazi era.
The Hong Kong courts can no longer protect their citizens
While the Hong Kong courts have so far protected the freedom of expression of Hong Kong residents, they will no longer be able to do so. Because it is not they who decide what is covered by the Hong Kong Security Act. Instead, new organs created by China determine that do not have to obey Hong Kong laws.
Although Article 22 of the "Hong Kong Basic Law" expressly obliges them to do so. It says: "No department of the central government may interfere in matters that the Hong Kong Special Administrative Region administers in accordance with the law."
For example, a secret service that is controlled from China, as well as subdivisions in the police and public prosecutor's office and judges: inside who are only assigned by the government to judge possible cases according to the security law.
If it is unclear whether a case falls under the security law, the newly appointed security committee, on which a Chinese "adviser" sits alongside parts of the Hong Kong government, decides. China also provides some of its budget. The Hong Kong parliament no longer has the right to veto the budget, which has so far been one of its most important means of control.
So there are now Chinese security authorities in Hong Kong who do not have to abide by any of the applicable laws, which no one can control and who, at will, can declare pro-democracy efforts prohibited and intercept, search or send activists directly to custody without a court order .
Or, as Fraenkel writes: "The National Socialist state insisted that in the area of politics the law was simply eliminated and that the decision about what was political was given exclusively to the political authorities."
He described how administrative courts continued to grant persecuted groups the same rights as “Aryan national comrades” in the mid-1930s, for example issuing trade licenses to them - and the Gestapo then taking them away again: “In the rule of law, the courts control administration from the point of view of legality ; In the Third Reich, the police authorities control the courts from the point of view of expediency. "
The Hong Kong Security Act makes something similar possible. Hong Kong courts can no longer enforce the right of their citizens to physical integrity.
The totalitarian state of measures is already rampant
What makes the state of action particularly sneaky: It has no clear borders and is rampant, so that the entire state is becoming more and more totalitarian.
Fraenkel describes this for Nazi Germany using the Reichstag Fire Ordinance. While at the beginning “only” communists were persecuted, the courts soon expanded the groups: Actually, this also meant homosexuals, union officials and members of sects. This went so far that in 1938 the Reichsgericht finally sentenced a family from Solingen for praying grace at home because they belonged to a prohibited religious minority.
This is also evident in Hong Kong. For example in the unofficial primary elections that the pro-democratic camp held after the security law was less than two weeks old. 600,000 people took part in the primaries - a lot more than the organizers expected.
Just one day after the election, a Hong Kong official announced that the primaries were in violation of security law. The Chinese government agreed to this. She called for an investigation into law professor Benny Tai for helping to initiate the elections. In doing so, she has attacked one of the main organizers of the pro-democracy camp directly since 2014. Meanwhile, Tai University has fired.
It is no longer clear which authorities do not have to obey the law
This proliferation of the state in which the measures are taken is not only evident when it comes to the question of where an alleged political crime begins. But also who is allowed to follow them. In Hong Kong these are currently the specially appointed authorities. In Nazi Germany, too, it seemed clear at the beginning: The Gestapo, which no one controlled, dealt with political crimes. But since the police were the responsibility of the Gestapo, at some point it was said: Even the police cannot be controlled.
It cannot be ruled out that at some point the entire Hong Kong police will no longer have to obey Hong Kong laws. The reasoning could then go something like this: Your actions serve national security and are therefore beyond the control of the Hong Kong courts. This is exactly why the security law is so dangerous - even if it no longer appears in the news, it is a tool that the Chinese government can use to gradually turn Hong Kong into an authoritarian state. Until, at some point, only “one country” remains from the slogan “one country, two systems”.
Even then, the normative state would not have completely disappeared. The ultra-capitalist tax haven Hong Kong will still be an ultra-capitalist tax haven with the same economic laws. But the opposition will always have in the back of their minds that they can be thrown into Chinese prisons for their songs and slogans.
From now on, it will probably shift again and again where the boundaries of the state of standards and the state of action run. At the moment the judges traditionally quite independent of China still have leeway inside - they will try to use it.
Editing and photo editing: Rico Grimm, final editing: Susan Mücke
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