Crimes Against Humanity and Their Discontents: The French Case
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Scowcroft Paper No. 14
Crimes Against Humanity and Their Discontents:
The French Case
By Dr. Richard J. Golsan, Ph.D.
Senior Scowcroft Fellow
Editor, South Central Review
Director, France/TAMU Centre Pluridisciplinaire
University Distinguished Professor,
Department of International Studies, Texas A&M University
For more information: bush.tamu.edu/Scowcroft/Crimes Against Humanity and Their Discontents: The French Case
By Dr. Richard J. Golsan
Foreword
This Scowcroft Paper was written as a presentation, and read by Dr. Richard Golsan on March
22, 2018 at The George Bush School of Government and Public Service on behalf of the Scowcroft
Institute of International Affairs. Dr. Golsan is internationally recognized for his research into the
history and memory of World War II France and Europe, being awarded the Palmes Academiques
by the French government for his work. This Scowcroft Paper comes after the publication of two
recent books on World War II France and how it is remembered: The Vichy Past in France Today:
Corruptions of Memory and The Trial That Never Ends: Hannah Arendt’s ‘Eichmann in Jerusa-
lem’ in Retrospect. Further inquiry into this topic or the information contained in this Paper
should be directed to the aforementioned books and other publications by Dr. Richard Golsan.
Introduction needed to address more recent crimes against
humanity committed by other governments in
By the time the trial on charges of other situations. Provocatively, Vergès and
crimes-against-humanity of former SS his defense team pointed to French crimes
Haupsturmfuehrer Klaus Barbie concluded during the Algeria war, American crimes in
in Lyon in July 1987, Barbie’s arrest and Viet Nam, as well as Israeli crimes against
prosecution had garnered international atten- Palestinians in Lebanon and in the Occupied
tion and controversy on a scale comparable to territories. If the trial failed to address these
the arrest and prosecution of Adolph Eich- crimes, Vergès maintained, any judgment the
mann in Jerusalem, some twenty-six years court might render against the aging Nazi
earlier. Like the Eichmann trial which (pri- Barbie would be hypocritical. More signifi-
marily through the work of Hannah Arendt) cantly, it would constitute a gross miscarriage
famously raised concerns about the “banality of justice and one which would leave a per-
of evil” implicit in Eichmann’s actions and manent stain on France’s democratic and re-
Jewish complicity in the Holocaust, the Bar- publican traditions in the eyes of the world.
bie trial raised a series of vexing historical,
legal, and moral questions. Among the for- To the extent that criminal proceed-
mer were the extent and nature of French ings in France (and elsewhere) are intended
complicity with the Nazis, not only in the lat- to deal with specific crimes committed by an
ter’s struggle against the French Resistance, individual or individuals, both of the larger
but also in the deportation to their deaths of historical (and political) issues raised were, at
French and foreign Jews as part of Hitler’s least in principal, outside the purview of the
“Final Solution.” Also — at least according court. But to adopt this perspective would be
to Barbie’s defense council Jacques Vergès to ignore the broader implications of the Bar-
— if the trial were to have any legitimacy in bie trail, both in France and internationally.
historical terms, in addition to Nazi crimes, it
1Crimes Against Humanity and Their Discontents: The French Case
Even though a relatively low-level Nazi, Bar- laws in putting Eichmann to death following
bie, known as the “butcher of Lyon” for his his conviction, many in France wanted an ex-
wartime actions, tortured to death France’s ception to be made in French law so that Bar-
greatest Resistance hero, Jean Moulin. He bie, if convicted, could be executed as well.
also murdered or deported to their deaths Largely as a result of the efforts of France’s
hundreds of other Resistance fighters and Minster of Justice, Robert Badinter – whose
Jews. One of the charges Barbie was con- own father had been arrested and deported to
victed of in Lyon was the arrest and deporta- his death by Barbie – the death penalty had
tion of forty-four Jewish children, along with been abolished in France in 1981. In the end,
several of their teachers, hidden in a country no exception was made for Barbie and he
village near Lyon called Izieu. None of the died in prison in 1991, four years after his
deported children survived. When his trial conviction.
concluded, Barbie was the first person con-
Implicitly at least, efforts to make an
victed of crimes against humanity under
exception to French law so that Barbie could
French law. In the Palais de Justice in Lyon,
be executed point to one of the most vexing
where the trial took place, there is a large
issues – and legacies – of the Barbie trial.
plaque commemorating Barbie’s conviction.
This concerns the apparent willingness of
In the French, as well as international French courts and magistrates to revise or
media, Barbie’s trial was portrayed as a wor- misapply French and international laws to
thy sequel to other historic post WWII trials meet political (as well as other) pressures of
of Nazi leaders, including the Nuremberg tri- the moment. Not only did the “massaging” of
als and aforementioned Eichmann trial in Je- the French law during the lead-up to Barbie’s
rusalem in 1941. Where the latter is con- trial produce tensions in the Lyon courtroom,
cerned, the French press and numerous books it also had a deleterious impact during subse-
and television programs appearing about the quent trials in the 1990s for crimes against
case at the time, often compared Barbie to humanity of two French Nazi collaborators.
Eichmann, although he was certainly not at Indeed, some have argued that it has also cre-
Eichmann’s level in the Nazi hierarchy, nor ated problems in international law. This
was the kind of evil Barbie displayed in tor- Scowcroft Paper examines the French con-
turing and killing his victims comparably text surrounding the Barbie trial and its im-
“banal.” On the other hand, both Eichmann mediate legacy before concluding with the le-
and Barbie escaped to South America with gal implications and precedents it set for in-
the help of the Catholic Church after the war, ternational criminal law today.
both had been sheltered by right-wing author-
itarian regimes there, and both had been “kid-
napped” by intelligence operatives and sent,
one to Israel and the other to France, to stand
trial. Finally, in an effort to imitate Israeli jus-
tice, which had made an exception to its own
2Crimes Against Humanity and Their Discontents: The French Case
The French Context Surrounding Barbie During the trial of Vichy premier Pierre La-
val, jurors who loathed Laval as the living
In interesting ways, the Barbie trial
symbol of a disgraced and compromised re-
constituted a continuation of the postwar
gime that had murdered so many of their fel-
Purge trials of French collaborators with the
low Resisters, openly threatened his life in
Nazis. In effect, both constituted unprece-
court. For his part, Laval refused to recognize
dented legal events. In Barbie’s case, the
the legitimacy of the trial and after the threats
court applied “new” or previously unused le-
from jurors, refused to appear in court. The
gal statutes, that is, those concerning crimes
accused was ultimately convicted and sen-
against humanity. But during the Purge, an
tenced to death.
entirely new court had to be established to try
those accused of collaboration and sharing The Laval trial cast a pall over the le-
intelligence with the enemy, as well as other gitimacy of postwar legal and judicial efforts
crimes. At the Liberation, a majority of the to deal with the consequences of the 1940 de-
French magistrates and judges had compro- feat and wartime Occupation. And it is at
mised themselves professionally and person- least possible, that it served as one source of
ally by working for the collaborationist Vi- inspiration for Barbie’s defense team in re-
chy regime, and in applying that regime’s op- peatedly challenged the legitimacy of the
pressive and now lapsed laws. Therefore, court and the trial itself. Also, perhaps delib-
these individuals had to be replaced, and the erately following Laval’s example, Barbie
institutions they served abolished. Accord- decided to boycott his trial after the first few
ingly, following the Liberation, a freshly days of questioning.
minted “High Court of Justice” was estab-
If the Barbie trial showed some inter-
lished. The new court’s judges were com-
esting parallels with the Laval trial, the event
prised of jurists and magistrates who refused
that made the Barbie trial possible in the first
to work for Vichy. Members of the jury ap-
place derives from another historical mo-
pointed for each trial assigned to the court
ment. That is the December 1964 vote in the
consisted of former members of the Re-
French National Assembly to incorporate
sistance drawn from a pool created by the
crimes against humanity into French law and
government.
make them imprescriptible, that is, without a
Given the make-up of the High statute of limitations.
Court’s members at its formation, it is not
Why was the vote taken, and why at
surprising that critics challenged its legiti-
this precise moment? In French law, the stat-
macy and accused it of administering a “vic-
ute of limitations for war crimes runs out af-
tor’s justice,” a charge leveled forty years
ter twenty years. Since France was liberated
later at the trial of Klaus Barbie in Lyon. In
from the Nazis in 1944, 1964 therefore
one particularly memorable instance during
marked a critical moment. In recognizing
the Purge, these claims seemed justified.
that Nazis who committed crimes on French
3Crimes Against Humanity and Their Discontents: The French Case
soil could no longer be arrested and prose- France in early 1983, the statute of limita-
cuted for war crimes, France needed another tions for any war crimes he had committed in
legal means to arrest and try them. Crimes wartime Lyon, whether he was tried and con-
against humanity statutes having been ap- victed for them or not, had expired long be-
plied both at Nuremberg and in Jerusalem fore. As a result, if Barbie were to be tried
during the Eichmann trial, and having been again in the 1980s, he could only be charged
declared imprescriptible in international law with crimes against humanity. So, as the
by the United Nations in 1946, made this preparation of the government’s case against
seemed like a good solution for the French Barbie got underway in Lyon following his
Assembly. In fact, the measure was passed incarceration there (French criminal cases are
unanimously. During the discussion leading almost always tried in the location where the
up to the vote, one Deputy speculated that if crime was committed), the examining magis-
Hitler himself were discovered hiding in trate assigned to the case, Christian Riss had
France, he could be tried under the new law! to be careful not to bring charges against Bar-
bie that could be construed as war crimes. In
How did the passage of the 1964 law
addition, because French law, like American
affect the Barbie case twenty years later?
law, prohibits double jeopardy, no war crime
Known during the war as the “Butcher of
for which Barbie had already been convicted
Lyon,” Barbie had been tried in absentia,
in 1952 and 1954 could be re-introduced and
convicted, and sentenced to death by French
included in new charges of crimes against hu-
military tribunals in 1952, and again in 1954.
manity.
He was found guilty both times for war
crimes committed in the Lyon region during Faced with these realities, Christian
the Occupation. He escaped punishment for Riss made the decision that no crimes com-
these convictions because he had been se- mitted by Barbie against Resistance members
creted out of Europe to Bolivia in 1951 could be included in an indictment for crimes
through the concerted efforts of the American against humanity. By definition, he reasoned,
CIC (now CIA), reactionary elements in the Resistance members were enemy combat-
Catholic Church, and the International Red ants, and according to Article 6c of the Nu-
Cross. Barbie had worked for the CIC follow- remberg Charter now applicable under
ing the war as an intelligence agent spying on French law, crimes against humanity could
the Soviets. By 1951, his crimes in France only be committed against “civilian popula-
widely known, he was becoming a potential tions.”
source of embarrassment for the American
It is precisely at this point that a cru-
intelligence apparatus, and it was decided to
cial legal decision in the Barbie case ran up
get rid of him.
against the demands of history and memory,
By the time Barbie was arrested and as well as the political pressures of the mo-
extradited from Bolivia, and brought to ment. If Barbie was recognized in France in
the mid-1980s for a specific crime, or crimes,
4Crimes Against Humanity and Their Discontents: The French Case
these crimes were unquestionably the arrest Court of Appeals, where the appeal was re-
and torture of Jean Moulin and the torture, jected, and then to a higher court in Paris, the
murder, and deportation of other Resistance Court of Cassation. Here the outcome was
fighters. However, in accordance with Riss’s different. On 20 December 1985, the higher
indictment, when the trial eventually took court reversed the Lyon court decision, and
place these crimes would lie entirely outside allowed the Assizes court in Lyon to try Bar-
the jurisdiction of the Lyon assizes court. bie for crimes he committed against the Re-
Civil Parties lawyers representing Resistance sistance. As part of its decision, however, the
survivors and their families therefore would Paris court took the bold move of amending
not be allowed to form part of the prosecution the definition of crimes against humanity in
during Barbie’s trial. According to Riss’s in- French law. According to the new definition,
dictment, Barbie would essentially only stand crimes against humanity could now be com-
trial for the 1943 arrest of French and foreign mitted not only against civilian populations
Jews at a Jewish relief center on the Rue but also against armed opponents of a re-
Sainte-Catherine, the April 1944 arrest and gime, as long as the regime in question prac-
deportation of the children of Izieu (men- ticed “a politics of ideological hegemony.” In
tioned earlier), and the August 1944 deporta- this instance, the decision referred obviously
tion to their deaths of several hundred Jews. and for all intents and purposes exclusively to
This last crime was committed just as the Nazi Germany.
Lyon region was about to be liberated by the
Immediate Impact of the Barbie Trial
Allies.
The effects of the Paris court’s deci-
Understandably, Riss’s decision was
sion, both in the long and short term, were
greeted with widespread protest and even
profound. In the short term, one practical
outrage in some quarters. For many in
consequence of the decision was that the in-
France, if Barbie were not tried for his crimes
vestigation of the case now had to be re-
against the Resistance, the trial would make
opened. This would take time (it took a year
no sense in historical terms. Moreover, the
and a half), and many feared that the accused,
memories of Barbie’s Resistance victims,
already a frail old man, would die in prison
many still traumatized by the horrors perpe-
before his trial occurred.
trated against them, would not be aired in the
courtroom. Many of Barbie’s victims would Also in early January 1986, shortly
forever, therefore, be denied the satisfaction after the higher court decision was an-
of confronting their torturer face to face. nounced, a public controversy erupted among
Civil Parties lawyers and others concerning
In the French legal system, an appeal
the historical and moral justification of the
can be filed before a case is tried, and so Re-
decision. The ensuing debate in many ways
sistance groups and their representatives ap-
went to the heart of the matter at hand. Serge
pealed Riss’s decision, first, to the Lyon
Klarsfeld, the Civil parties lawyer for the
5Crimes Against Humanity and Their Discontents: The French Case
children of Izieu, publicly announced his dis- “grotesque triage” in order to write the indict-
satisfaction with the 1985 decision. For ment in the way that he did, excluding these
Klarsfeld, the Nazis’ Jewish and gypsy vic- Resistance deportees.
tims were “innocents” – etymologically
If, in the eyes of most if not all Re-
“those who do no harm” – whereas those who
sistance survivors and their families and rep-
opposed them with arms fell into a different
resentatives, the 1985 decision did justice to
category, since they posed a real threat to the
their needs and concerns, it nevertheless
Nazis’ existence and power. In one response
opened the door to larger historical and legal
to Klarsfeld, a Civil Parties lawyers for Re-
problems. These concerned the meaning of
sistance plaintiffs took issue with Klarsfeld’s
the phrase, “a regime practicing a politics of
distinction and pointed out that Klarsfeld’s
ideological hegemony.” What did the phrase
language implied that as opposed to Jewish
actually mean, and precisely which regimes
and gypsy victims, Resistance victims were
would or could be characterized in this way?
somehow “guilty” for their struggle against
For example, would the category include
the Nazis. In another response, the former
other totalitarian regimes besides Nazi Ger-
Resistance hero Vercors, whose own father
many, like the Stalinist Soviet Union, or Red
was Jewish, rejected Klarsfeld’s distinction
China? And although the issue would only
as well. Vercors noted that Resisters’ family
arise later, as we shall see, what of Vichy
members, who were themselves not in the
France itself, which had of its own volition
Resistance and not fighting against the Nazis,
persecuted Jews and brutally suppressed Re-
were nevertheless tortured and killed by Bar-
sistance fighters? To further complicate the
bie and his ilk on a frequent basis. Moreover,
problem, if the agents of any state, including
even though deported resisters were sent to
democratic ones, practiced torture or de-
concentration camps rather than to death
ported civilian populations, could these states
camps, as testimony at the Barbie trial later
then not also be justifiably characterized as
revealed, most if not all those deported suf-
“practicing a politics of ideological hegem-
fered similar abusive and dehumanizing
ony” in carrying out these actions? And could
treatment, regardless of the type of Nazi
those who resisted such a state and its prac-
camp involved. Resistance fighters, like
tices, when tortured, deported or killed them-
Jews, were also murdered in cold blood. For
selves, not also be victims of crimes against
some, the legal and historical necessity of try-
humanity? In the end, for all victims of brutal
ing Barbie for crimes against Resistance
political repression, did the political nature of
fighters along with his crimes against the
the regime in question really change the na-
Jews was implicit in the very charges brought
ture of the crime committed against them, or
against him by Christian Riss. In the train car-
the trauma the victims experienced?
rying Jewish deportees to the east that left
Lyon in August 1944, approximately half These are of course difficult ques-
those on board were Resistance fighters. Riss tions, and in the postwar French context, they
had to have made what one critic called a were particularly fraught. During the period
6Crimes Against Humanity and Their Discontents: The French Case
of decolonization, and especially during the he deported, or both. It also heard testimony
struggle over Algerian independence, agents and saw evidence confirming Barbie’s ad-
of the French Fourth republic, primarily but ministrative actions and responsibilities in
not exclusively soldiers, had tortured, de- the deportations to the east, and the extent of
ported and killed Algerian civilians as well as his knowledge of the fate they would suffer
resisters belonging to the FLN, the Front de there. Expert witnesses confirmed not only
Libération Nationale. There were also in- the authenticity of the documents implicating
stances of non-Arab French citizens who had Barbie in these crimes, but also the extent of
been tortured and murdered by French gov- his knowledge of Hitler’s Final Solution,
ernment forces. To put an end to internecine given his position and rank in the Nazi hier-
strife that lingered long after the war, in 1968 archy. By contrast, certainly early in the trial,
an amnesty law covering crimes committed testimony by Resistance victims was sparse.
in Algeria was passed by the National As- The testimony of the most eloquent and tragic
sembly. Given this reality, which many if not of Barbie’s Resistance victims, Lise Lesèvre,
most in France were aware of at the time of whose son and husband had been arrested and
the Barbie trial, what justice could there be in deported by Barbie all in a futile effort to
trying an old Nazi, whose crimes even pre- make her betray her Resistance colleagues,
dated crimes committed by the French in Al- was sandwiched between that of six Jewish
geria and elsewhere a decade or two later? A victims, on the eleventh day of the trial.
partial justice at best, at least for some.
Near the end of the Barbie trial, the
When the Barbie trial finally got un- dissentions over the higher court’s 1985 de-
derway in Lyon in May 1987, the delicate and cision and its implications began to show. In
complex issues raised by the 1985 Paris his final statement before the court, the chief
Court of Appeals decision were not immedi- prosecuting attorney, Pierre Truche, openly
ately in evidence. Civil Parties representing expressed his misgivings about the 1985 de-
Barbie’s Jewish victims as well as his Re- cision (he had opposed it at the time it was
sistance victims were included in the prose- announced). He also expressed the hopeful
cution. Nevertheless, given the nature of the view that the decision, as well as the entire
final indictment, his crimes against the Jews legal apparatus established around the Barbie
took center stage. So much was this the case, trial, would mark a constructive step in the
that in terms of the testimony given and the evolution of human rights law internation-
preponderance of witnesses interviewed by ally.
the court, one commentator argued that in the
It fell to the defense attorneys,
end the trial was really only about the chil-
Jacques Vergès and two late recruits to the
dren of Izieu. According to another commen-
team, the Algerian lawyer Nabil Bouaita, and
tator, the real focus of the trial was the Nazi
the Congolese lawyer Jean -Martin Mbemba,
death camps. In the event, the court heard
to fully expose and attempt to exploit the the-
wrenching testimony from Barbie’s Jewish
oretical weakness and ambiguous wording of
victims, including those he tortured and those
7Crimes Against Humanity and Their Discontents: The French Case
the 1985 decision. In his final plea before the the pleas of Mbemba and Bouaita, the prob-
court, Vergès compared French crimes in Al- lematic not to say dubious comparisons it af-
geria against civilian populations, and similar forded allowed them to address the court for
American abuses in Viet Nam, to Nazi more than two hours without ever discussing
crimes. Vergès did not bother to address the the actual crimes of which Barbie was ac-
issue of whether, and how, Fourth Republi- cused.
can France and the United States government
At the end of the trial, Barbie was
were regimes practicing a policy of ideologi-
found guilty on all counts, including crimes
cal hegemony. For Vergès, it appeared, the
against humanity committed against Re-
distinction was meaningless.
sistance members. So, in the verdict at least,
When their turns to make their final the 1985 decision did not adversely affect the
pleas before the court arrived, Mbemba and court’s ability to render justice. Moreover,
especially Bouaita did Vergès one better. Jacques Vergès’ effort to exploit the 1985 de-
Both pointed to examples of other mass cision to transform the trial into what he liked
crimes, especially by Western democracies to call a “trial of rupture” (where the defense
and their allies that, they argued, also quali- turns the tables on the court and makes the
fied as crimes against humanity. But when trial not about the accused but about the in-
Bouaita spoke of the massacres of the Pales- justice of the judicial system itself) clearly
tinian camps of Sabra and Chatilla as consti- failed.
tuting Israeli crimes of this magnitude, sev-
The Legacy of Barbie
eral civil parties’ lawyers vigorously pro-
tested. They demanded that the judge (in That being said, what was the long-
France, the “President” of the court) halt the term impact of the 1985 decision in French
trial so that a response to what they consid- law, and specifically, on the subsequent
ered outrageous, not to say scandalous, com- French trials for crimes against humanity that
parison proposed by the defense could be pre- occurred in the 1990s? These involved two
pared. Other civil parties’ lawyers objected to French collaborators with the Nazis, Paul
these colleagues’ demands. They affirmed Touvier, a member of the Vichy regime’s
that it was procedurally unacceptable for the paramilitary police force, the Milice, and
civil parties’ lawyers to be given the right to Maurice Papon, a highly placed Vichy bu-
respond to any points the defense might reaucrat in wartime Bordeaux.
choose to make. The exclusive right to pass
Tried in Versailles in 1994, Paul Tou-
judgment on the defense’s arguments fell to
vier was charged with the murder of seven
the judges and jury, and not to opposing
Jewish hostages at a cemetery near Lyon in
council. Once again, the 1985 decision and
summer 1944 as an act of reprisal for the Re-
especially its political implications for the
sistance’s assassination the day before of Vi-
past and present divided the civil parties
chy’s Minister of Propaganda. There were a
against themselves. Moreover, in the cases of
8Crimes Against Humanity and Their Discontents: The French Case
number of vexing legal obstacles for the pros- opened in Versailles in April 1994, how were
ecution to overcome, the most significant of all these issues resolved, and what were the
which emerged as a direct consequence of the implications of that resolution? The fact re-
1985 decision in the Barbie case. Before the mained that, if Touvier was solely an agent of
trial of Touvier even got underway, in April Vichy, his crimes could only be war crimes,
1992 the Paris Court of Appeals shockingly and the statute of limitations for these crimes
dismissed all charges against Touvier on the had run out. And, more troubling still for the
grounds that the Vichy regime was not a re- prosecution, it emerged that there had been
gime that practiced “a politics of ideological no German order to kill the Rilleux hostages,
hegemony.” Because it was not such a re- as Touvier had earlier claimed. In the event,
gime, the court maintained, crimes against a civil parties lawyer, Arno Klarsfeld, son of
humanity could not be committed on its be- Serge Klarsfeld, came up with a solution. He
half. Therefore, Touvier’s crimes were war noted that Joseph Darnand, the head of the
crimes, and so he had to be released from cus- Milice, the paramilitary organization to
tody. which Touvier belonged, had earlier sworn a
personal oath of loyalty to Adolph Hitler
The response to the decision was in-
himself. This being the case, Klarsfeld ar-
tensely critical, and every major historian of
gued, Milice members including Touvier,
Vichy regime pointed to the gross inaccuracy
like their leader, could be classified as mem-
of the court’s historical interpretation of Vi-
bers of a Nazi organization, and therefore
chy and its politics. Some historians and ju-
could legally be considered to have acted af-
rists went so far as to claim the court deliber-
ter all on behalf of a regime practicing a pol-
ately whitewashed Vichy so that Frenchmen
itics of ideological hegemony. Klarsfeld’s
who had worked for the regime — these in-
gambit worked, and the court convicted Tou-
cluded President Francois Mitterrand –
vier of crimes against humanity. The problem
would never have to stand trial for crimes
was, of course, the historical record had been
against humanity. Later that year, a higher
distorted, not to say falsified, to secure the
court partially overturned the lower court’s
conviction. By any accurate and reasonable
decision, arguing that Touvier could in effect
measure, the Milice was a French organiza-
be tried for crimes against humanity, because
tion in its inspiration, activities, and direc-
as Touvier himself had claimed, he had been
tion, despite what the court ruled.
acting on German orders when he ordered the
murder of the seven Jewish hostages. But the By the time Maurice Papon came to
higher court did not challenge the lower trial three years after the tainted conviction of
court’s erroneous historical assessment of the Touvier, the French courts and legal system
Vichy’s regime, and its dubious conclusion had taken significant steps to avoid potential
that Vichy was not a regime that practiced a problems created by the 1985 and 1992 deci-
politics of ideological hegemony. sions. A January 1997 Court of Cassation de-
cision in the Papon case ruled that the Vichy
So, when the Touvier trial finally
regime had in fact been an “indispensable
9Crimes Against Humanity and Their Discontents: The French Case
cog” in the Nazi’s machinery of death in the 1994 genocide. Of course, Rwanda is cur-
Holocaust, and that Papon, a bureaucrat who rently a vexed subject for France, the French
had rounded up and deported Jews for the Na- military trained Rwandan Hutu security
zis in Bordeaux, could be tried for crimes forces who would later became involved in
against humanity. In effect, the deeply prob- the killing. Also, some charge that French
lematic qualification of a regime “practicing troops sent to Rwanda during the genocide to
a policy of ideological hegemony” had been rescue Tutsis as part of Operation Turquoise
circumvented. On the other hand, the court actually allowed thousands of Tutsis to die.
ruled that French complicity with the Nazis
Perhaps, taking a lesson from prob-
did not mean those complicit with it were
lematic French legal decisions where crimes
aware of the ultimate fate of the Jews de-
against humanity are concerned, neither the
ported. In the event, Papon was convicted of
International Criminal Tribunal for the for-
crimes against humanity but found innocent
mer Yugoslavia nor the International Crimi-
of having knowingly sent Jews to their
nal Tribunal for Rwanda links crimes against
deaths. For most historians it was almost in-
humanity to a specific type of regime. That
conceivable that Papon did not know the ul-
has undoubtedly made their tasks easier.
timate fate of those he deported. Neverthe-
Where the ICTY is concerned, accused from
less, he received only a ten- year sentence for
both of the major enemy combatants, Serbia
what by French, as well as international legal
and Croatia, were charged with and tried for
standards remains the most heinous of
crimes against humanity.
crimes.
Conversely, the 1985 Paris high court
Conclusion
decision allowing war crimes to also be con-
In the end, what lessons can be taken sidered crimes against humanity in some
from the convoluted path of crimes against cases did help the ICTY in some situations.
humanity law in France, and what specifi- For example, in handing out verdicts against
cally has been the impact of the 1985 decision perpetrators of such crimes as the 1995 Serb
requiring that crimes against humanity can massacre of 6000 Muslim men at Srebrenica.
only be committed on behalf of a regime Some of those killed were actively resisting
practicing a policy of ideological hegem- Serb aggression. This instance, for one, justi-
ony”? As already noted, the problematic fies the claim of legal scholar Nicholas Do-
qualification of an ideologically hegemonic man, that the 1985 decision did in fact make
regime was not an issue during the Papon “an important contribution to international
trial. In fact, in today’s French criminal code, law with respect to crimes against humanity”
the phrase happily no longer exists. So it is
In conclusion, shortly after the Tou-
now theoretically possible, for example, for
vier trial had ended, the legal scholar Chris-
the French courts to try Rwandan Hutu mur-
tian Guéry concluded pessimistically that,
derers who found refuge in France after the
given all the contortions to which it had been
10Crimes Against Humanity and Their Discontents: The French Case
subjected to secure the convictions of Tou- mark a constructive step in the evolution of
vier and Klaus Barbie before him, crimes laws protecting human rights, in France and
against humanity law had lost all meaning elsewhere. While Guéry’s view appears more
and substance in French law. Several years apt to the Touvier and Papon trials, in inter-
earlier, as noted, the prosecutor in the Barbie national law, Truche’s view appears more
trial, Pierre Truche, took a very different prescient than Guéry’s. For the sake of
view, expressing the hope that the legal deci- French and international justice going for-
sions made with respect to the Barbie case, ward, we should hope Truche’s perspective
and the 1985 decision in particular, would ultimately prevails.
The Views expressed herein are those of the author and do not necessarily reflect the positions
of The Scowcroft Institute of International Affairs, The Bush School of Government and Pub-
lic Services, or Texas A&M University
11Crimes Against Humanity and Their Discontents: The French Case
Dr. Richard J. Golsan
Richard J. Golsan is the Director of the Melbern G. Glasscock Center for Humanities Research
and serves as University Distinguished Professor for the Department of International Studies and
Distinguished Professor of French at Texas A&M University. His research interests include the
history and memory of World War II in France and Europe and the political involvements of
French and European writers and intellectuals with anti-democratic and extremist politics in the
20th and 21st centuries. Golsan served as a Visiting Professor at the University of Paris III-Sor-
bonne Nouvelle in 2001. He has been recognized by the Italian government in being named to
the Ordina Della Stella Della Solidarieta Italiana and by the French government by being
awarded the Palmes Academiques. He has served as Editor of the South Central Review (SCMLA)
since 1994, and is also Director of the France/TAMU a Centre Pluridisciplinaire, funded by the
French government.
Dr. Golsan has over 48 works in 186 publications and is currently at work on a book-length
study entitled Corruptions of Memory: Crises of Post-Holocaust Remembrance in Contemporary
France. His most recent publications include French Writers and the Politics of Complic-
ity (Johns Hopkins, 2006), The Vichy Past in France Today: Corruptions of Memory (Lexington
Books, 2016), and The Trial That Never Ends: Hannah Arendt’s ‘Eichmann in Jerusalem’ in Ret-
rospect (University of Toronto Press, 2017).
12Crimes Against Humanity and Their Discontents: The French Case
The Bush School of Government and Public Service
Mark Welsh, Dean and Holder of the Edward & Howard Kruse Endowed Chair
Founded in 1997, the Bush School of Government and Public Service has become one of the lead-
ing public and international affairs graduate schools in the nation. One of ten schools and colleges
at Texas A&M University, a tier-one research university, the School offers master's level education
for students aspiring to careers in public service.
The School is ranked in the top 12 percent of graduate public affairs schools in the nation, accord-
ing to rankings published in U.S. News & World Report. The School now ranks thirty-third among
both public and private public affairs graduate programs and twenty-first among public universi-
ties.
The School's philosophy is based on the belief of its founder, George H.W. Bush, that public ser-
vice is a noble calling—a belief that continues to shape all aspects of the curriculum, research, and
student experience. In addition to the Master of Public Service and Administration degree and the
Master of International Affairs degree, the School has an expanding online and extended education
program that includes Certificates in Advanced International Affairs, Homeland Security, and
Nonprofit Management.
Located in College Station, Texas, the School's programs are housed in the Robert H. and Judy
Ley Allen Building, which is part of the George Bush Presidential Library Center on the West
Campus of Texas A&M. This location affords students access to the archival holdings of the
George Bush Presidential Library and Museum, invitation to numerous events hosted by the
George Bush Foundation at the Annenberg Presidential Conference Center, and inclusion in the
many activities of the Texas A&M community.
The Scowcroft Institute of International Affairs
Andrew S. Natsios, Director and E. Richard Schendel Distinguished Professor of the Practice
The Scowcroft Institute of International Affairs (SIIA) is a research institute housed in the Bush
School of Government and Public Service at Texas A&M University. The Institute is named in
honor of Lt. Gen. Brent Scowcroft, USAF (Ret.), who had a long and distinguished career in public
service serving both as National Security Advisor for Presidents Gerald Ford and George H.W.
Bush. The Institute's core mission is to foster and disseminate policy-oriented research on interna-
tional affairs by supporting faculty and student research, hosting international speakers and major
scholarly conferences, and providing grants to outside researchers to use the holdings of the Bush
Library.
“We live in an era of tremendous global change. Policy makers will confront unfamiliar chal-
lenges, new opportunities, and difficult choices in the years ahead I look forward to the Scowcroft
Institute supporting policy-relevant research that will contribute to our understanding of these
changes, illuminating their implications for our national interest, and fostering lively exchanges
about how the United States can help shape a world that best serves our interests and reflects our
values.” — Lt. Gen. Brent Scowcroft, USAF (Ret.)
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