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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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A Narrative of Justice and the (Re)Writing of History

A Narrative of Justice and the (Re)Writing of History

Lessons Learned from World War II French Trials

Chapter:
(p.122) 6 A Narrative of Justice and the (Re)Writing of History
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Dov Jacobs

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0006

Abstract and Keywords

This chapter discusses the trials that took place in France after World War II to prosecute those accused of collaborating with and actively promoting the agenda of the Nazi occupiers. It first details the legal framework set up to try collaborators, which included both the use of existing provisions of the Criminal Code and the creation of a new offence, that of indignité nationale, or national indignity. It then highlights the difficulties of such judicial proceedings with two examples, the trials of political leaders Philipe Pétain and Pierre Laval. The chapter concludes with some general thoughts on the evasive question of historical truth.

Keywords:   France, trials, Nazis, legal framework, war crimes trials, criminal code, national indignity, Philipe Pétain, Pierre Laval

(I) Introduction

Issues of post-conflict justice, broadly defined as the study of how new political regimes deal with the crimes of previous, were traditionally dealt with in a fragmented way by different disciplines. While historians, sociologists and jurists from various countries have studied these issues, discussions on post-conflict justice have only relatively recently been taken up by international lawyers and have acquired considerable momentum in the past decade.1 This interest from international law mirrored the development of a new discipline, that of transitional justice.2

However, despite the bridges that now exist between international law, and more specifically international criminal law, and other disciplines, there is a surprisingly low level of historical self-reflection among international criminal lawyers on their core object of research, namely mass crimes and the difficulty of prosecuting them. In other words, and to put it more bluntly, international criminal lawyers, and more generally a number of transitional justice academics, often give the impression of re-inventing the wheel on the methodological and conceptual difficulties facing them. With the notable exception of the Nuremberg trials,3 international criminal (p.123) lawyers tend to draw little help from historical examples of how to deal with collective crimes, and even less so of national examples.

This chapter will propose to do this in relation to the trials that took place after World War II (WWII) in France to prosecute those deemed to have collaborated with and actively promoted the agenda of the Nazi occupiers. The following sections will therefore not be a comprehensive discussion of how France dealt with the épuration of its private and public sector through a number of administrative and judicial sanctions.4 They will rather try to illustrate the issues that practitioners today need to grasp when dealing with past atrocities. To do that, the chapter will first deal with the challenges facing the new post-WWII government when trying to set up the legal framework to try the collaborators (section II). It will then highlight the difficulties of such judicial proceedings with two examples, the trials of political leaders Pétain and Laval (section III). The chapter will conclude with some general thoughts, most notably on the evasive question of historical truth (section IV).

(II) Dealing with Acts of Collaboration: Setting up the Legal Framework

Having exposed the general context of the discussion (1), this section will present the legal framework that was set up to try collaborators. This included both the use of existing provisions of the Criminal Code (2) and the creation of a new offence, that of indignité nationale, or national indignity (3).

(1) The general context

Discussions on how to deal with the épuration of those Frenchmen who had collaborated at one level or another with the occupiers started some months before the end of war in committees specially created by De Gaulle. Two of those, the Comité Général des Etudes and the Comité National Judiciaire, worked together to produce a memo in February 1944 that outlined the legislation that could be put in place after the liberation.5 As is often the case in such circumstances, the passions of the five-year conflict and occupation created pressure on the committees to show the utmost severity in relation to those who had helped the Nazis.6 However, the (p.124) preamble of the joint working document submitted by the committees indicated that the drafters had decided to adopt a more balanced approach, and try to reconcile the requirements of punishment with respect for the rights of the accused.7

One of the questions that had to be answered by the committees was the legal basis for the trials. At the heart of this debate was the principle of nullum crimen sine lege, a recognized principle of criminal law, and in the case of France, a principle that had been strongly defended during the French Revolution. Indeed, the Declaration of the Rights of Men and of the Citizens of 1789 famously provides that: ‘A person shall only be punished by virtue of a law established and promulgated before the offence.’8 The lesser-known Declaration of the Rights of Men and of the Citizens of 1793 presented things in a more emphatic way:

No one ought to be tried and punished except after having been heard or legally summoned, and except in virtue of a law promulgated prior to the offence. The law which would punish offences committed before it existed would be a tyranny: the retroactive effect given to the law would be a crime.9

This principle was enshrined in the French Criminal Code which was in force at the time.10

In light of this, the committees elaborated a normative framework that tried to satisfy both the requirements of legality and the demand for punishment. It was accepted that there were essentially two categories of collaborators: those who had directly helped the occupants, to whom the existing Criminal Code was applicable; and those who had indirectly helped the occupants, for whom a new legal framework needed to be designed.11

(2) The application of the existing provisions of the French Criminal Code

For the first category of collaborators, it was deemed that, to a large extent, the existing provisions of the Criminal Code on treason and offences against the security of the (p.125) state could be applied to acts committed during the war. More specifically, the general framework of Article 75 of the Criminal Code was to be used. This Article provided for the prosecution of acts of collaboration with a foreign power famously labelled as ‘intelligence with the enemy’.

Several interpretative ordinances were issued by the provisional government to ensure the effectiveness of the application of the Criminal Code to the situation of occupied France. These ordinances illustrate a clear will on the part of their drafters to leave as little room as possible for acquittals. First, it was declared that the provision of information relating to members of the résistance should be considered as affecting national security as provided for by Article 83 of the Criminal Code.12

Second, it was considered that, because of the illegality of the Vichy regime persons acting according to orders of the government, or in application of a legislative measure, could not benefit from the traditional defences that would normally attach to such a situation ‘if the accused personally had the opportunity of not executing the order and where his responsibility or his moral authority was such that by refusing to act he would be serving the nation’.13 Third, acts committed against France’s allies could be assimilated to acts committed against the French state itself, thus allowing the consideration of these acts under the relevant provisions of the criminal code. The Ordinance of 26 June 1944 even went as far as to consider that for the purposes of the application of the Criminal Code, the troops of Allied forces were to be considered French troops.14

(3) Indignité nationale: A new offence to capture the essence of the épuration

The second category of persons—those that could be considered to have indirectly collaborated with the Nazis—gave rise to more difficulty than the first. On the one hand these were acts that could not, even with a wide interpretation, fall within the scope of the existing French Criminal Code. On the other hand, some of these acts, even if they could be labelled as offences against national security, would warrant a penalty that would be far too harsh in relation to the minor gravity of the actions. In other words, applying the Criminal Code to all instances of collaboration would be too lenient in some cases and much too severe in others.15 Despite this, the drafters of the laws of épuration were reluctant to let the ‘small fish’ get away because they had also, by their actions, or even inaction, contributed one way or another to the dishonour of the country. In order to reflect this, therefore, the drafting committee provided the following solution, that of the creation of a new offence of indignité nationale, defined in the proposal as ‘the situation in which has placed himself a person who, directly or indirectly, had voluntarily (p.126) helped Germany or its Allies, or affected the unity of the nation or the liberty or equality of the French’.16

It goes without saying that this new offence raises some important questions in relation to the legality principle, and the drafters of the Ordinance were aware of these difficulties. How did they therefore justify the new law in relation to non-retroactivity? One can identity three main justifications. First, the indignité nationale did not constitute a sanction in the criminal sense, but was rather a series of civil sanctions, such as the prohibition to be a state employee, and therefore did not fall within the scope of application of the principle of non-retroactivity of criminal laws. This justification is certainly unconvincing in light of how modern human rights law defines the scope of criminal sanctions,17 but appeared in the official explanatory memorandum of the law that accompanied its adoption.18 The second justification, while accepting that this indeed constituted a new offence, considered that it was acceptable because it provided for more lenient sentences than the Criminal Code for persons who would be prosecuted under the former rather than the latter, and therefore did not violate the principle of non-retroactivity which allows for the retroactive application of more lenient laws.19 This explanation, put forward, among others by famous jurist and future drafter of the Universal Declaration of Human Rights René Cassin, is somewhat more elegant than the first one, but is in fact equally unconvincing. Indeed, for one, it only applies to cases that would fall within the scope of both the Criminal Code and the law on indignité nationale. Persons who could not have been prosecuted under the stricter provisions on national security cannot seriously be said to be benefitting from a more lenient law, because without that law they would not have been prosecuted at all. Second, technically this justification would only work if the new law replaced the former one, which was not the case. It was perfectly within the powers of the charging authorities to choose to prosecute under the Criminal Code, despite the existence of the law on indignité nationale. The argument would be more acceptable if, de minimis, the law had provided some form of immunity from prosecution under the Criminal Code for persons held responsible under the new offence. (p.127) The third justification, and probably the least convincing from a legal point of view, in fact corresponds most neatly to the drafters’ state of mind. For some, the indignité nationale was not really an offence, but a fact, or more precisely a ‘state’ in which a person found himself after having acted in a certain way. This state was not to be technically determined by a judge, but rather certified as a given. The state therefore pre-existed the legal concretisation and therefore could not violate the non-retroactivity principle. This justification adequately highlights the teleology of the épuration. Some people, through their actions, had brought shame not just to themselves, but to France as a nation. It was therefore considered as legitimate, if legally dubious, for the French Republic in return to declare that these citizens were not worthy of the same rights as other citizens.

(III) Pétain and Laval: The Trials of the Leaders

The trials of Pétain and Laval illustrate the difficulties of trying the leaders of a former regime, especially when undertaken by political opponents. Both these trials came quite late in the process of épuration, to the concern and frustration of a number of commentators who thought that logically, these trials should have come first because without the condemnation of those who had led the country to collaboration, the trial of all other collaborators did not make sense. However, for pragmatic reasons, it was deemed that the new government could not afford to wait for the complex issues surrounding the trial of such senior political figures to be resolved before starting the process in the rest of the country. The trial of Pétain came first, and took place from 23 July until 15 August 1945. The trial of Laval followed some time later, from 4 October until 9 October 1945.

Both trials followed the same format. They were held before the Haute Cour de Justice (High Court), a special body set up within the Senate under the Constitution of the Third Republic to try high public officials for acts against the state.20 This Court was abolished by the Vichy regime21 and re-instated by the Provisional Government by a November 1944 ordinance to try the high-ranking collaborators.22 However, the Provisional Government did not follow the previous rules pertaining to the composition of the High Court. Rather than being composed of members of the Senate, the Court had three professional magistrates23 and a jury of twenty-four members.24 It is interesting to note in relation to the composition of the jury that half were drawn from the Parliament, while the other half were (p.128) chosen from citizens who ‘during the war, demonstrated a patriotic and resistant attitude towards the enemy’.25 This composition certainly helps to explain the apparent lack of impartiality of the proceedings.26

The study of these trials and the circumstances surrounding them highlights a number of features that are common to proceedings of this nature in any transitional setting. More specifically, one can identify the following issues of interest: the symbolic dimension of the trials (1); the related desire of the accusers to (re)write history (2); and finally the ambiguity of the process (3).

(1) The symbolic dimension of the trials

Trials of high-level leaders always carry a symbolic charge and situate themselves at the crossroads of a number of extra-legal stakes of a political, sociological and performative dimension.27 The trials of Pétain and Laval were no different. However, while both trials provided the opportunity for the new government to tell its own story of the war,28 their symbolism was performed on different levels.

Pétain’s trial was in many respects more symbolic of the general failure of France. Pétain represented the regime and its systemic illegality. In this sense, Pétain was in a way just an excuse to point out that Vichy was an illegitimate government and that De Gaulle represented the ‘true’ France that fought on. This collective dimension of the Pétain trial is illustrated by the will of the government to hold a trial in absentia. Indeed, it appears that Pétain’s absence (he was being held in Germany) was seen as a positive development rather than as an obstacle. Conducting the proceedings without Pétain ‘would have allowed for the French justice to issue a national judgment without the opportunity for the defendant to explain himself or be represented’.29 The desire not to have Pétain present was all the more strong, that a number of opinion polls done in the early months of 1945 showed that French public opinion was not uniform in relation to what to do with the former leader of the Vichy regime and that he was in fact a divisive figure.30 Pétain himself clearly expressed his desire to face his responsibilities31 and returned to France (p.129) through Switzerland in late April 1945.32 The ambivalent public opinion found its way in the actual judgment of the High Court, which, while condemning Pétain to death, also expressed the ‘wish’ that he in fact not be executed. The judgment itself only mentions Pétain’s age as the reason for this rather peculiar ‘wish’, but it appears that in fact it was the result of a broader disagreement during the deliberations, with the judges suggesting a term of five years of banishment and the death penalty only being imposed by a one-vote majority among the jurors themselves.33

As a final testimony to the fact that for a number of people, it was the regime, not the man himself that was on trial, it is interesting to read De Gaulle’s take on the trial. While he considered that it was absolutely necessary to hold it because Pétain ‘had symbolised what was the surrender and, even if he himself had not exactly wanted it, the collaboration with the enemy’, he nonetheless recognised that the man himself deserved some indulgence for the services he had rendered to France over his life.34 This attitude explains why De Gaulle eventually commuted Pétain’s death sentence, following in this way the ‘wish’ expressed by the High Court.

Such lenience was not extended to Laval. While Pétain represented treason in a broad sense, Laval represented, in addition to treason, the more active spirit of collaboration. While French public opinion was divided on Pétain:

in 1945, [Laval] was still one of the most hated men in France. He is seen as the most responsible of the debasement and troubles of the country: choice of collaboration and its procession of compromises, temptation of military collaboration, forced labour, requisitioning, police abuses…all sides agreed on his faults.35

In addition, his case was not helped by the fact that he had been dismissed by Pétain in December 1940, only to be invited back as head of government in April 1942 at the urging of the Nazis, thus confirming the impression that he was a willing agent of the occupant.

(2) The narrative goals of the prosecution

The way both trials were conducted highlights the motives behind the prosecution case. The main goal was to provide a two-pronged narrative. On the one hand, Pétain and Laval had wanted the defeat of France and had acted in that direction before the war. On the other hand, the regime that was set up as a result was illegal and illegitimate.

(p.130) The first aspect of the story was necessary in the context of the narrative that aimed at finding those responsible for the defeat. This is a natural tendency of any regime. There is no luck in defeat, neither is the answer to be found in the success of the enemy. Someone within the country is responsible. This is why a large portion of both trials was devoted to identifying conduct before the war that might be read as preparing for defeat at the hands of the Nazis. In relation to Pétain, the prosecution argued that in the years preceding the war, he had organised a conspiracy to establish a dictatorship in France, inspired by Franco, and with the financial help and promise of military support from the Nazis.36 This theory appears, in hindsight, to be based on no tangible evidence. The accusation was based on the statement of a person that had been found to be lying repeatedly in other instances37 and, according to one of the members of the jury at the time, no proof of such a conspiracy was ever put forward during the rest of the trial.38 In fact, the judgment itself, while it generally condemns Pétain for his collaboration with the Nazis, and for the dubious choice of men to lead the country with him, also states that ‘even if strong presumptions can be drawn against Pétain because he invited into his various governments men that were part of factious movements, there is not sufficient proof that there was between him and them a real conspiracy against the security of the State’.39 As for Laval, he was, on the first day of his trial, asked to explain his anti-war stance before the war which had been a ‘policy of annoyance, of reduction of the war potential of France’,40 and his declarations that predicted the victory of Germany and the defeat of the United Kingdom.

The difference in approaches in both trials can be easily explained by the fact that, while Pétain was essentially absent from political life in the years preceding the war, and could therefore not be found to have made suspicious statements pointing to a conspiracy, Laval was an active member of several governments and had therefore a clear political position that he could be held accountable for in hindsight.

The second aspect of the story was equally crucial for the new government, both politically and legally. From a political perspective, it could not be accepted that the French Republic had voluntarily relinquished power to Pétain and Laval. This would lend the Vichy government a legitimacy that was not compatible with the idea that the real government of France was represented by De Gaulle and his supporters in exile. This is why both trials went to considerable length to show that power was acquired by political manoeuvring. Interestingly, the date chosen for what the prosecutor in the Laval trial called a ‘coup d’état41 was not Pétain’s acquisition of the full powers by the Assembly on 10 July 1940, but his accession to the Presidency of the Council at the invitation of the then President of the Republic, Reynaud, on 16 June 1940. This had the corollary effect of voiding the Armistice that was signed on the 25 June, which was one of the main narrative goals of the (p.131) new government, as explained by De Gaulle in his memoirs42 and confirmed by Delattre, one of the jury members for the Pétain trial: ‘[The Trial] must be resituated in its context: in 1945, in the eyes of the gaullistes, the armistice was a crime and the main crime committed by Pétain.’43

This narrative also had legal consequences. As previously outlined,44 it allowed the drafters of the laws of épuration to provide that a person could not raise as a defence that he had acted in accordance with a law enacted under the Vichy Government. Moreover, the nullity of the Armistice had equally far ranging consequences. For one, it directly allowed the application of the provisions of the Criminal Code on intelligence with the enemy. If the Armistice was legal and put an end to the war, this could not be invoked.45 Second of all, and more theoretically, it meant that De Gaulle himself could not be prosecuted for his actions during the war that were in contradiction to the terms of the Armistice.46

(3) The ambiguities of the process

A common feature of both trials, and of many of the trials of the épuration, was the difficulty of establishing a fair process. This difficulty had two dimensions: the first one relating to the partiality of the proceedings and the second one, which is partly linked to the first, relating to the role of the accusers during the war.

In relation to the partiality of the proceedings, it appears that the investigations were hasty and incomplete. The Pétain trial had been prepared with the absence of the accused in mind, and with therefore little work done on the provision of defence rights because no opposition was expected. His return to France led to the reopening of the file and the haphazard addition of a number of documents.47 It even appears that some evidence was removed because it would not have resisted examination by the defence.48 In the Laval trial, the accused complained repeatedly that he was not allowed to request additional investigations to bolster his case, to which the prosecutor amazingly and unashamedly responded that ‘the Pierre Laval affair could have been brought to court without the need to have it preceded with a judicial investigation, because, the investigation started the day of the accession to power of Pétain and Laval, as his second-in-command’.49 This was hardly an indication of the fairness of the proceedings.

(p.132) This lack of fairness was made more obvious by the passion surrounding the trials, which surely influenced its active participants. In that respect, the Laval trial stands out once again for its partiality. Two examples can be given. At the end of the first day of hearings, when Laval was taken from the courtroom, someone in the audience clapped. The Presiding judge asked for that person to be removed, at which point, one of the jury members cried out ‘he deserves, like Laval, to receive twelve bullets’. There were no consequences for the juror.50 Given the composition of the jury which, as explained previously, contained individuals who had actively fought against the Vichy regime during the war, such statement is not surprising. However, any minimal attachment to notions of impartiality should at least have led to the removal of this particular jury member. The second example can be found in the prosecutor’s closing address, in which he lamented that Laval was not summarily killed through an act of ‘popular justice’ when visiting Paris in August 1944.51

In relation to the accusers, both Pétain and Laval pointed out repeatedly that they were being tried by persons who had held their positions during the Vichy Government. In his opening statement, one of Pétain’s lawyers pointed out that Pétain was being judged by those who had sworn allegiance to him. These judges had, during the period of the war, ‘rendered judgments and pronounced sentences in the name of [Pétain], head of the French state; speaking in his name and in application of the powers that he had conferred upon them, they ordered that the representatives of the police forces execute the judgments they were issuing’. In this context, how could the judges not be perceived as being partial?52 In a similar fashion, Laval interrupted the opening statement of the prosecutor with the following remark: ‘But you were all under the orders of the government at that time, you who are judging me, magistrates, and you, General Prosecutor’.53 This perceived partiality of the judges explains Pétain’s position at the outset of the trial, where he declared in an opening statement that:

[I]‌t is the French people who, through its representatives, brought together in the parliament, on the 10 July 1940, brought me to power. It is to this people that I came to answer to. The High Court, as it is currently composed, does not represent the French people, and it is to it, and only it, that the Maréchal de France and the Head of State speaks today.54

(IV) Lessons (to be) Learned

This final section will bring together the preceding analysis and try to draw some general lessons both for the evaluation of the system of the épuration and, in line with the objective outlined in the introduction, for situations that may arise today. These lessons relate both to the legal dimension of post-conflict trials (1) and to the narrative function of these trials (2).

(p.133) (1) The legal dimension of post-conflict trials

What becomes apparent from this impressionistic overview of the way that France dealt with the épuration of those who had collaborated with the Nazi occupiers, is that those who conceived and implemented the legal framework were faced with some universal dilemmas that required the balancing of a number of issues. As indicated earlier, there was a need to satisfy the collective desire for vengeance with the requirements of justice.

In relation to the applicable law, the analysis shows the difficulty in achieving this balance. The trials required the setting up of a legal framework that had to compromise the principle of legality and required, for it to be operational, some creative reappraisal of the situation that existed at the time, as is the case with the nullity of the Armistice.

These conclusions find an obvious echo in debates that have surrounded the retroactive application of international criminal law. While the creation of the International Criminal Court and its explicit application only to acts committed after its entry into force55 has alleviated some concerns in relation to this problem, the issue still arose and arises in cases where ad hoc tribunals are created. The Nuremberg Judgment famously held that the principle of legality was:

[Generally] a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.56

In other words, the principle of legality is merely a relative principle that needs to give way to the requirements of justice. The way this issue was resolved in relation to the Former Yugoslavia and Rwanda tribunals was to claim that the existence of the crime under customary law satisfied the requirements of the principle of legality.57 This line of reasoning was validated at the European Court of Human Rights.58

While this intellectual construction can be questioned in a number of ways,59 the increased codification of international crimes and their growing implementation in national legal orders means that the issue is less likely to arise in the future. It is nonetheless important to recall it as an illustration of the grey zone between law and (p.134) morality that more generally permeates the fields of human rights and international criminal law.

In relation to the fairness of the proceedings, it becomes apparent from the examples given that there is a very fine line between what is now being called ‘local ownership’ of the process and partiality of the process. The thinly veiled call for murder from the prosecutor in the Laval trial highlights the passion that accompanies such proceedings. Moreover, the fact that the trials were conducted by judges who had served under the Vichy regime is equally representative of the risks of partiality. The study of such cases is therefore of interest for those studying the interaction between national and international courts in prosecuting mass crimes, and who are trying to find a balance between local ownership and the distance necessary for the process to be deemed fair.

(2) The narrative function of post-conflict trials

Beyond the legal dimension, the most important insight that can be drawn from the preceding discussion is how trials can be used to shape the narrative of a conflict. As discussed, behind the laws of épuration and behind the legal proceedings of the trials, lay a narrative that the new government wanted to promote. This narrative was that of the lack of continuity of the French state during the Vichy regime. Pétain had set up an illegal and illegitimate dictatorship, with the political, but also intellectual support of a number of French citizens. The obvious objective of such a narrative was to solidify the legitimacy of the new government of De Gaulle, and even more importantly, its legitimacy as the continuance of the French Republic throughout the war. Several comments can be made in relation to this narrative.

First of all, this is a clear example of re-writing of history with the benefit of hindsight. It is only with the victory of Germany, for example, that the pre-war fascist musings of an intellectual such as Brasillach take on a premonitory and conspiratorial dimension.60 Equally, had the communists not become such a political force during the war, and the British such close allies, anti-communist and anti-British pronouncements would not have been held against a certain number of accused in the épuration trials.61

Secondly, the trials are a somewhat clear example of the victor writing history to fit his own narrative. The political and sociological reality of pre-war France was a (p.135) far more complex web of interests and tensions and the French defeat in 1940 was the result of more than the policies of a few ‘traitors’.

Thirdly, it is a selective narrative. Indeed, in the same way that Nuremberg was essentially (at least at the beginning) about crimes against peace, the trials of the épuration, as illustrated by those studied in this chapter, were about treason and, more specifically, the crime that was the capitulation to the Nazis in 1940. There is, somewhat strikingly, very little mention of the Holocaust. The Laval indictment, and only then in an annex, mentions the anti-Jewish law merely as an example of the will of Laval in adapting the French regime to Nazi policy. The Pétain indictment does not even mention the persecution of Jews and the Court seemed unconcerned by the issue. When, after one week of discussions on the Armistice, a juror asked whether there would be any evidence of crimes committed in relation to the Jewish population, the prosecutor responded that:

We will hear here some representatives of associations of victims that came out safe and sound—and I congratulate them for that—from the camps of Buchenwald, Dachau, etc. Their testimony will constitute what I call ‘courtroom impression’ more than actual arguments, because what matters in this trial, is to make a demonstration.62

These findings highlight the complex relationship between trials and history. While trials can be instrumental in historical work, they certainly cannot be considered as establishing history, as is sometimes argued today. Even if some of the anomalies of the post-war French trials are not reproduced in today’s trials, there is a limit to the capacity of criminal trials to set a reliable (and complete) record of the past.63 This difficulty is compounded by the fact that perceptions of history and expectations of the outcomes of criminal trials are fragmented. The narrative of the trials was not only selective, it was the selective choice of the new government, which only represented a fraction of the variety of interests of the French population at the time. In this sense, the ‘local ownership’ of the criminal process, as considered previously, is made more complex by the possibly conflicting hopes of what the process should achieve. This was illustrated by the difficulty experienced by the jury in fully adhering to the prosecutorial strategy in the Pétain trial. It was also impossible for journalists reporting on the trials to convey to their readership the complexities of a narrative that was essentially political, when they were expecting one that would mirror more closely their individual suffering.64

In light of this, while the initial reaction to the French trials, given the current success of the ‘truth paradigm’, could be criticism, one can wonder, taking a step back, whether truth is in fact such a relevant factor for the reconciliation that is sought by the trials. Not only is truth a relative concept,65 but over-reliance on (p.136) truth ignores the fact that national unity, which is one of the bases for reconciliation, is based not on truth, but on broadly accepted myths. In France, the myth of the résistance and the illegality of the Vichy regime was central to national identity. The fact that it took fifty years for a French president to recognise that the acts of Vichy were indeed the acts of France illustrates this.66 One must wonder if, at the time, such a myth was not necessary for the country to move forward.

In other words, post-conflict periods must be seen in a diachronic rather than synchronic dimension, where different periods might require different narratives and institutional frameworks. France, again, exemplifies this. Following the initial push for harsh treatment, a number of ‘softening’ initiatives were introduced in subsequent years. A general amnesty was enacted in 1953.67 Further, as mentioned above, the strict anti-Vichy narrative promulgated during the trials eventually gave way to a more nuanced historical record and the recognition that Vichy was also part of French history. Insisting on some form of objectified truth can in some cases lead to the reproduction of the societal tensions that were at the heart of the conflict in the first place. Only a reasoned analysis of the importance of post-conflict narratives, with their ambiguities, rather than an over-reliance on an illusory objective truth, can help academics and practitioners advance in the direction of the desired reconciliation.

Notes:

(1) For a precursor and seminal work by international lawyers on this question, see D. Alexander and Cherif Bassiouni (eds), Post-Conflict Justice (Boston, MA and Leiden: Hotei Publishing, 2002).

(2) Neil Kritz (ed), Transitional Justice (Washington, DC: United States Institute of Peace, 1995) is one of the first ‘codifications’ of this new field and Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) is considered to be the seminal book on the topic. For a discussion on the difficulties of actually establishing transitional justice as a coherent new field of research, see Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’, International Journal of Transitional Justice, 3 (2009), 5.

(3) See, among a number of works on Nuremberg, D. Blumenthal and T. McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Boston, MA and Leiden: Martinus Nijhoff Publishers, 2008) and more recently Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford: Oxford University Press, 2011).

(4) The term ‘épuration’, which can be translated as ‘purge’ or ‘purification’, designates the general policy of ‘cleaning up’ the country that took place in France after the war. It only partly corresponds to the practice of lustration that has been promoted, most notably in the former soviet bloc, to deal extra-judicially with former members of the regime and various human rights offenders. In this sense, it is preferred to use the French term in the remainder of this chapter, because of its wider scope of application and because of the light it sheds on the ‘moral’ state of mind of those who implemented this policy.

(5) Robert Aron, Histoire de L’épuration, Vol. 3(2) (Paris: Fayard 1969), 45–71. These committees were also in charge of formulating post-war policies for dealing with the various lawyers and judges who tried to minimise the effect of Vichy decisions during occupation.

(6) Such severity can be illustrated by the following draft proposal circulated at the time: ‘[W]‌ill be sentenced to death whoever, by his words, writings or example will have helped the objectives of the enemy to bring the French to collaborate in its actions’ (cited in Aron, above n 5, 80).

(7) ‘The need for sanctions after the victory against the French who, in one way or another, provided help to the activities and the manipulations of the enemy is not in doubt. However, repression, unfortunately necessary, must, whenever possible, reconcile two contradictory objectives. It must be effective and swift to satisfy the national conscience and prevent spontaneous reactions that would necessarily be rough and would risk being unfair; it must be fair, i.e proportional to the guilt and organised in such a way as to allow to determine that guilt with accuracy and that respect for the rights of the accused and the defence not be sacrificed’ (cited in Aron, above n 5, 82).

(8) Article 8, Declaration of the Rights of Man and Citizen (1789), available in English at <http://www.hrcr.org/docs/frenchdec.html> (accessed 3 March 2013).

(9) Article 14, Declaration of the Rights of Man and Citizen from the Constitution of Year I (1793), available in English at <http://www.columbia.edu/~iw6/docs/dec1793.html> (accessed 3 March 2013).

(10) Although the formulation has changed in the course of several reforms in the past decades, the principle remains the same and is today framed as ‘[c]‌onduct is punishable only where it constituted a criminal offence at the time when it took place’ (Article 112–1, French Criminal Code, available in English at <http://195.83.177.9/code/liste.phtml?lang=uk&c=33> (accessed 3 March 2013)).

(11) Aron, above n 5, 83.

(12) Ordinances of 17 and 31 January 1944.

(13) Peter Novick, L’épuration Française, 1944–1949 (Paris: Balland 1985), 234.

(14) Novick, above n 13, 235.

(15) Aron, above n 5, 83.

(16) Peter Novick, above n 13, 237. The new offence was adopted by an Ordinance dated 26 August 1944.

(17) For example, it is settled case-law of the European Convention on Human Rights that what is ‘criminal’, and therefore triggers the fair trial protections of Article 6 of the Convention and arguably the protection against non-retroactivity of criminal laws and sanctions contained in Article 7, cannot solely depend on the qualification under national law. Instead, the Court established a series of independent criteria: (1) the classification of the offence in the national system; (2) the nature of the offence; and/or (3) the severity of the penalty imposed (see Engel and others v Netherlands, Judgment, 8 June 1976, §82–3). Applying these criteria, the Court has more particularly found that the fair trial protections apply in lustration cases, even when the national legislation might characterise such proceedings as ‘civil’ rather than ‘criminal’ (Matyjek v Poland, Decision on Admissibility, 30 May 2006, §42–59). More specifically, the Court found that the prohibition of holding certain functions or public office for a long period of time could be considered a sanction of sufficient gravity to warrant the application of Article 6 (Matyjek v Poland, Decision on Admissibility, 30 May 2006, §54–6). In light of this, there is little doubt that the French law on indignité nationale would be considered as a ‘criminal’ matter under the European Convention on Human Rights framework, thus imposing the application of the non-retroactivity principle of Article 7 of the Convention.

(18) Aron, above n 5, 94.

(19) Peter Novick, above n 13, 250, n 15.

(20) Loi du 24 février 1875 relative à l’organisation du Sénat, Article 9.

(21) Acte constitutionnel no 5 du 30 juillet 1940 relatif à la Cour suprême de justice.

(22) Maurice Garçon, Le Procès Pétain, Compte-Rendu sténographique du Procès (Milan: De Vecchi 2007), 30.

(23) Judge Mongibeaux, First President of the Cour de Cassation, Judge Donat-Guigne, President of the Criminal Section of the Cour de Cassation and Judge Picard, First President of the Appeals Chamber. These three judges sat on both trials.

(24) This derogatory composition of the High Court was raised, to no avail, by Pétain’s defence as a challenge to the legality of the proceedings (Garçon, above n 22, 17).

(25) Garçon, above n 22, 9.

(26) See section III (3) below.

(27) For comprehensive studies on the multi-faceted dimensions of war crime trials, see more particularly: Mark Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge Univeristy Press, 2007); Mark Osiel, Mass Atrocity, Collective Memory and the Law (Piscataway, NJ: Transaction Publishers, 1999) and Gerry Simpson, Law, War and Crime (Cambridge: Polity, 2007).

(28) See section III (2) below.

(29) Aron, above n 5, 451.

(30) Roger Maudhuy, Les Grands Procès de la Collaboration (Saint-Paul; Souny, 2009), 207. (Describing how, when Pétain walked into the court on the first day of the trial, those present rose, and the guards stood to attention (garde à vous) out of respect). This risk of divisiveness was felt by De Gaulle himself, who wrote in his memoirs that ‘[a]‌lthough it appeared to me necessary from a national and international point of view that the French judicial system issued a solemn verdict, I wished that some incident would keep away from French territory this 89-year-old defendant, this leader previously adorned with significant dignity, this old man in whom, during the catastrophe, a number of French citizens had put their trust and for whom, despite everything, they still felt respect or pity’: Charles de Gaulle, Mémoires, Tome III (Paris: Plon, 1959), 111.

(31) In a letter to Hitler dated 5 April 1945, Pétain declared: ‘I cannot, without violating my honour, let it be believed, as is suggested by some propaganda, that I sought refuge in a foreign land to escape my responsibilities. It is in France alone that I can answer to my actions and I am the only judge of the risks that this attitude could carry’: reproduced in Bénédicte Vergez-Chaignon, Histoire de L’épuration (Paris: Larousse, 2010), 491.

(32) It appears that upon hearing news of the arrival of Pétain in Switzerland, De Gaulle made informal requests to the Swiss government that they in fact refuse to extradite him, so that the trial in absentia could take place, but that this was not followed with effect: Jacques Isorni, Pétain a sauvé la France (Paris: Flammarion, 1964), 14.

(33) Maudhuy, above n 30, 214.

(34) Charles de Gaulle, Discours et Messages, Vol. 2 (Paris: Plon 1974), 293–4.

(35) Bénédicte Vergez-Chaignon, Histoire de l’épuration (Paris: Larousse 2010).

(36) Garçon, above n 22, 33–4.

(37) Aron, above n 5, 454.

(38) Maudhuy, above n 30, 212.

(39) The full judgment is on file with the author. This finding of the High Court once again shows that Pétain, as a person, was never in fact the real target of his own trial. See section III (1) of this chapter.

(40) Garçon, above n 22, 44.

(41) Garçon, above n 22, 12.

(42) ‘What in the indictment appeared fundamental for me, was less so for many. For me, the capital offence of Pétain and of his government was to have concluded with the enemy, in the name of France, the so-called “armistice”’: reproduced in Aron, above n 5, 533.

(43) Maudhuy, above n 30, 210.

(44) Section II (2) of this chapter.

(45) This was raised by Georges Suarez, a journalist sentenced to death for intelligence with the enemy. The French Cour de Cassation found, however, with reference to the Hague Conventions, that an armistice was only a suspension of hostilities and therefore still constituted a war for the purpose of the application of Article 75 of the Criminal Code.

(46) Aron, above n 5, 90.

(47) Vergez-Chaignon, above n 35, 491.

(48) Aron, above n 5, 453–4.

(49) Garçon, above n 22, 13. The Prosecutor repeated this statement in his closing arguments, stating that no investigation was necessary to establish the obvious criminal nature of the acts of Vichy: at 268–9.

(50) Garçon, above n 22, 99.

(51) Garçon, above n 22, 307.

(52) Garçon, above n 22, 25.

(53) Garçon, above n 22, 13.

(54) Garçon, above n 22, 41.

(55) Article 11(1), Rome Statute.

(56) The Judgment of the International Military Tribunal for the Trial of German Major War Criminals (30 September and 1 October 1946), 217.

(57) See Report Of The Secretary-General Pursuant To Paragraph 2 Of Security Council Resolution 808 (1993) UN Doc. S/25704, 3 May 1993 at §34 (‘In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law’).

(58) Kononov v Latvia, ECtHR Grand Chamber, 17 May 2010.

(59) From a very pragmatic perspective, the documentary and methodological complexities that a number of international tribunals have been faced with when establishing the content of customary law in a number of cases makes the argument that the defendant should therefore have known that his acts were criminal at the time highly theoretical. Only if he himself had at his disposal an army of legal assistants to assess the national legislation of dozens of countries and the specific (and sometimes progressive) interpretations of a number of treaties and declarations of states, would the reasoning have any validity. For a comprehensive and critical discussion of the principle of legality in international criminal law, see Dov Jacobs, ‘Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories’ in Jean d’Aspremont and Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World, (Cambridge University Press, forthcoming). Available at SSRN: <http://ssrn.com/abstract=2046311> (accessed 20 December 2012).

(60) On the trial of Robert Brasillach, see Alice Kaplan, The Collaborator: Trial and Execution of Robert Brasillach (Chicago: University of Chicago Press, 2001).

(61) On the various offences that were established based on a certain opinion, see François Rouquet, Une Epuration Ordinaire (Paris: CNRS Editions 2011), 145–62.

(62) Vergez-Chaignon, above n 35, 495.

(63) Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge: Cambridge University Press, 2011).

(64) Vergez-Chaignon, above n 35, 492.

(65) Manuel Garcia-Carpintero and Max Kölbel (eds), Relative Truth (Oxford: Oxford University Press, 2008).

(66) Declaration of President Chirac on the 16 July 1995, <http://www.nytimes.com/1995/07/17/world/chirac-affirms-france-s-guilt-in-fate-of-jews.html?pagewanted=all&src=pm> (accessed 3 March 2013).

(67) Aron, Histoire de L’épuration, above n 5, 45–71.