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The French Case 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 1 Crimes 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 2 Crimes 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.
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