Bad Judgment at Bordeaux

Bad Judgment at Bordeaux

Mini Teaser: The conviction in April of the former French treasury minister, Maurice Papon, for complicity in crimes against humanity has been welcomed across the world. But one French law professor has called the trial "a legal disaster", and its political ra

by Author(s): John Laughland

The conviction in April of the former French treasury minister, Maurice Papon, for complicity in crimes against humanity has been welcomed across the world. That the former secretary-general of the Prefecture of Gironde (the department of which Bordeaux is the capital) was found guilty of helping to organize roundups of Jews, and of arranging train convoys to deport them, has been widely interpreted as a sign that France is finally "facing up to her past", and that worthy legal principles are being consolidated by which to establish individual responsibility for crimes committed by anonymous organizations like state bureaucracies.

The truth, however, is more complicated, and in many respects directly the opposite of this. One French law professor has called the trial "a legal disaster", and its political ramifications may prove disastrous as well.

To begin at the end: Maurice Papon was sentenced to ten years in prison. While the prosecution may be relieved that he was not acquitted, this sentence was a slap in the face for it. The public prosecutor had demanded twenty years, while many of the civil parties who were also prosecuting Papon in the same trial were calling for life imprisonment. The punishment meted out to Papon for complicity in the most heinous crime this century, if not in the whole history of mankind, is less than you get for armed robbery.

Papon was also acquitted of complicity in murder. Thus on the one hand, a minor provincial official in an occupied country has been placed in the same legal and moral category as a Heydrich or a Himmler, by being convicted of complicity in crimes against humanity; on the other hand, he was found innocent of complicity in murder. This incoherence bodes ill for the legal future of the concept of "crimes against humanity", for it is difficult to see how a crime which is so grave that, uniquely in the French penal code, it has been (retroactively) declared imprescriptible, can lead to anything less than the maximum sentence.

The outcome apart, very significant legal contortions were required to enable the Papon trial to take place at all, so much so that it is doubtful that it would ever have taken place under an Anglo-Saxon system of law in which, unlike that pertaining in France, political pressure is absent. The definition of "crimes against humanity" was changed four times (in 1985, 1992, 1995, and 1997) in order to allow it to be applied to Papon. The last change departed significantly from the definition of the term given at Nuremberg, by declaring that in order to prosecute someone for complicity in crimes against humanity, it was no longer necessary to show that the defendant had subscribed to the ideology of the principal actors of the crime. In other words, it was not necessary to show that Papon desired the death of Jews.

So why was Papon prosecuted? There is a whiff of ulterior political motive in the air. The original accusations against him were published in 1981, at an extremely sensitive political moment between the two rounds of the presidential election. Franois Mitterrand had emerged as the main challenger to ValŽry Giscard d'Estaing, whose budget minister was Papon, and the revelation that the incumbent government harbored a man who may have sent Jews to their death helped clinch the Left's subsequent victory.

By contrast, the fate of another, infinitely more compromised Vichy figure was different. Rene Bousquet, the head of the police under Vichy who negotiated the collaboration between the French police and the SS in the rounding up of Jews, was sentenced after the war to five years' national disgrace. This sentence was immediately overturned by the justice minister, who happened to be none other than his old friend, a certain Franois Mitterrand. Bousquet then pursued a successful career in banking. As president, Mitterrand did his utmost to prevent Bousquet from coming to trial again.

Perhaps Mitterrand wanted to protect a friend, or perhaps he was afraid that his own then-unknown past as a Vichy government official would come to light in a way he could not control. Whatever Mitterrand's motive, Bousquet was miraculously assassinated just two days before he was indeed finally due to appear in court in 1995. But, in an apparent display of double standards, the advocate-general who helped bring Papon to trial, Marc Robert, and who was one of Papon's most virulent attackers during it, had himself apparently done Mitterrand's bidding and helped to retard the Bousquet trial. As an official in the Justice Ministry in 1991, Robert had written a technical memo giving legal reasons why Bousquet should not be brought to trial.

In other words, there is the suspicion that Papon was pursued at least partly for political reasons. This may be because Papon's own political profile is quite specific. Unlike all the other potential and past French defendants for complicity in crimes against humanity, Maurice Papon is a Gaullist. Indeed, he belongs to the very inner core of the first generation Resistance circles.

As numerous Resistance veterans testified during the trial, and as a Jury of Honour composed of very senior Resistance figures had also testified in 1981, Papon performed services for various Resistance networks during the war (although this was contested by one witness during the trial). As well, he had undertaken other acts--such as hiding an American airman who had been shot down over Bordeaux and helping him escape to Spain--for which the Gestapo would have shot him on the spot had he been caught. Indeed, he claimed (and witnesses corroborated his claim) that the Gestapo wanted to arrest him in 1944.

For these services, Maurice Papon became the only Vichy official in the whole of France to be promoted at the Liberation within the same prefecture he had served in during the Occupation. This was at a time when nearly the entire prefectoral corps was purged of collaborators--even the ones who had been deported by the Nazis were screened on their return--and when there was ample opportunity for the settling of old scores through bogus denunciations. Yet Papon became chief of staff to Gaston Cusin, an arch-resistant whom De Gaulle appointed as the new prefect in Bordeaux. Papon was photographed standing next to De Gaulle on the balcony of the prefecture as the general addressed the city in September 1944.

After the war, Papon was a frequent guest at the dinner tables of Resistance heroes, circles that were entirely closed to collaborators. He was also a close friend of the daughter of General Leclerc, the man who liberated Paris. So when De Gaulle returned to power as president in 1958, he appointed Papon prefect of police in Paris, one of the most sensitive posts in the French power structure because the politics of France are so often decided in the streets of the capital. The general would only have given it to a man in whom he had absolute confidence.

Maurice Papon's status as a resistant explains one of the most astonishing phenomena of this "trial of Vichy": the testimony of numerous very senior Gaullists and Resistance veterans in his defense. They included two former prime ministers, President de Gaulle's own former chef de cabinet, and one of the very icons of the Resistance and head of the AcadŽmie Franaise, Maurice Druon, who had composed the movement's anthem. Another resistant communicated to the court the conviction of a group of some of its most redoubtable heroes, now dead, that the charges against Papon were absurd. Many of these people testified in this way precisely because they understood that Papon's double status as representative of both Vichy and the Resistance meant that the whole of France would stand condemned if he were convicted.

Indeed, Papon's Resistance activities were at the heart of his partially successful defense. For, contrary to widespread reporting abroad--which seems to owe more to half-remembered platitudes from the Eichmann trial than to any genuine acquaintance with what happened in the Bordeaux Court of Assises between October 1997 and April 1998--Papon's defense was not that he was "just obeying orders." It was instead that he was not responsible for deportations, that he had no powers over the police, and that, on the contrary, he used what power he did have to save Jews--by removing their names from lists, by intervening with the Germans to get individual ones liberated, and by ameliorating the conditions under which they were transported.

Papon claims that he thus saved 139 people, including the sister of one of his prosecutors. In dramatic testimony, the widow of the prefect's chief of staff--who traveled 300 miles to get to Bordeaux, and whom Papon had not seen for half a century--recalled how she and her husband had been terrified that Papon was getting himself into great personal danger by helping Jews. The prosecution, of course, attacked these allegations as bogus.

If it is difficult to see how the trial could even have occurred in a judicial system free from political control, then a conviction of Papon under an Anglo-Saxon legal system seems unimaginable. For the evidence presented to disprove Papon's version of events was either circumstantial, or would have been declared simply inadmissible in a British or American court. For instance, the prosecution dwelt on his alleged brutality while prefect of police in Paris in 1961, events which lay entirely outside the ambit of the trial; and one historian was allowed to give evidence even though he admitted that he knew nothing about Bordeaux under the Occupation and nothing about Papon.

Above all, despite Papon's repeated challenges to the prosecution to provide one single document bearing his signature ordering an arrest of a deportee during the war, it failed to do so. The principal documents produced by the prosecution were either ones of which Papon was not the author (such as notes requisitioning trains, which he signed on the prefect's behalf), or internal administrative minutes, drafted after the events.

Both prosecution and defense thus turned on the question of his real responsibilities as the secretary-general (head of administration) in the Bordeaux prefecture between 1942-44. Papon claimed that powers over the police rested exclusively with the prefect, his boss, and that in any case the Germans often short-circuited the prefecture entirely and operated directly through the French police. Papon says he possessed the right to sign documents in the prefect's name, but that this power of signature did not mean that he had taken the decisions himself. At all times, Papon insisted, the actual process of arrest and internment bypassed him completely. These subtle but important distinctions were rubbished by the prosecution. They were also obscured by some commentators, including Christopher Caldwell in the Weekly Standard (May 4, 1998), while others, like Adam Gopnik in the New Yorker (April 27 and May 4, 1998), preferred to ridicule them.

As secretary-general, Papon also had the Service of Jewish Questions under his authority in the prefecture. This was a branch of the Commissariat-General for Jewish Questions, which the Vichy government had established in order to administer the anti-Semitic legislation it had passed in 1940 to ban Jews from public life and the media. As the deportations proceeded, the Germans started to use the lists of Jews compiled by the Service for their roundups, although during the trial the defense also insisted that the Germans had their own lists. This thus seemed to incriminate Papon.

However, Papon claimed that his authority over the Service was purely technical, and that for the deportations themselves his subordinate, Pierre Garat, the head of the Service for Jewish Questions, discussed substantial political questions directly with the prefect instead. But above all, Papon insisted, the true responsibility for the deportations lay with the Germans. There were two Gestapo divisions in Bordeaux alone, and the Nazis there had no compunction in shooting three hundred hostages to make their point, just as they massacred entire French villages when Resistance activity was detected.

The prosecution heaped ridicule on the suggestion that Papon was systematically bypassed from above and from below, and despite the lack of clear proof of his guilt, the jury evidently did not quite believe him either. However, on many occasions the prosecution's case seemed to verge on making a different charge, that of failing to help persons in danger. This is a specific crime in France, but it is certainly not one under which charges can be brought fifty-five years after the events.

Another witness who lent credence to Papon's version of events was the historian Michel Bergs. Bergs' testimony was strategically very important for the defense because he had originally been on the prosecution's side. Having been one of the people to unearth the original documents in 1981, he underwent a conversion as his studies advanced. He now argues that, with the benefit of a broader view, it is clear that Papon was merely a conduit of information and not a decisionmaker.

Bergs also emphasized what he called the "massive gaps" in the prosecution file on Papon. Although it comprised a monstrous 30,000 pages, Bergs said, it included no reference to the archives of the prefect (Papon's immediate superior), to those of the German security police, or to those of the executive arm of the Commissariat-General for Jewish Questions that collaborated in roundups. Bergs, who presented himself as a professional student of archives and who witheringly attacked the prosecution for not being so, claimed that the characteristic glitch of one typewriter enabled him to establish with certainty that the police chiefs themselves, although theoretically under the control of the prefecture, were in fact a key part of the decision-making process, acting in direct collusion with the Germans.

Did the trial perform a worthy historical function? There is much journalistic cant about how it has forced France to "face up to her past." The trial might have performed such a function had it occurred at any time up to 1970, for the deportation of Jews had not been discussed up to that time. But since then the discoveries of active collusion by Vichy with the Nazis have generated an intense interest in the period that continues unabated. French historical work on Vichy has been excellent, and there have even been several feature movies about the period for the wider public. In no sense can the French now be accused of willful ignorance about it.

On the contrary, coverage of Vichy has reached such levels that, by the time of the Papon trial, the pendulum may even have swung in the opposite direction. The perception that Vichy "went beyond German demands" in pursuing anti-Semitism--a phrase that figured in the charge against Papon, and that derives from the seminal work of the American historian Robert Paxton--had perhaps begun to obscure a key moral difference between an occupied country and its occupier. The fact that proportionately far fewer Jews were deported to their deaths from France than from any other Nazi-occupied country--some three-quarters of French Jews survived--was also often left out of the equation.

Indeed, if the trial has taught any historical lesson, it is precisely that Vichy officials like Papon did not know that the Jews, unlike most other deportees, were being sent to their deaths. The main prosecuting lawyers in the Papon trial were all in agreement on this point, and even Papon's most violent critics were forced to admit it. Claude Lanzmann, the director of the film Shoah, wrote that Papon must have known that the deportees were not being sent away for their own good; but this is very different from knowing they were being sent away to face industrialized mass murder.

Not only did Papon himself not know--he thought they were being sent to prison camps--but he also made the striking claim that if the Vichy administration had known, it would not have collaborated in the deportations either. The Germans maintained the fiction that the Jews were being sent to work camps by requiring them to bring clothes and provisions with them, and as numerous people at the time and since have testified, it was impossible to imagine the brutality to which the Germans would sink. When Jan Karski, a fugitive from the Warsaw ghetto and Belsen, escaped to the United States in 1942 and managed to obtain an audience with Supreme Court Justice Felix Frankfurter, the judge listened to his account and then replied, "Sir, I do not think that you are a liar, but I am unable to believe you."

If anything, therefore, the trial may stimulate in some observers a less negative interpretation of the Vichy government than has been prevalent. For although much of the prosecution's case rested on making an amalgam, as Papon himself said, between Papon and the prefect and between Vichy France and Nazi Germany (one of the prosecuting lawyers even compared Papon directly to Eichmann), this vision was undermined by some respectable witnesses.

The most astonishing of these were the Gaullist "barons" referred to earlier. One of them, Jean Bozi, a former member of the private office of an interior minister of De Gaulle, affirmed an old theory that used to be accepted only by hardened old Vichyites, namely that Vichy had shielded France from some of the excesses of the Nazi occupation. Bozi lent credence to Papon's repeated suggestion that it was nobler for him to remain in his post rather than resign, for resignation would have been an easy option.

Another Resistance witness made the suggestion--staggering for a Gaullist--that those who accepted posts in the Vichy administration in order to resist from within may have chosen a better and more difficult path than those who did so from outside. De Gaulle's former chief of staff pointed out that the general's three prime ministers had all been Vichy officials. Also, on the margins of the trial, a highly decorated Resistance veteran who had been deported to Buchenwald published an article in Le Figaro asserting that if Vichy had not existed, then the Resistance would have been utterly crushed; the French army in North Africa would never have been reconstituted; and the number of Jews and others deported would have been more than double what it was.

Finally--and perhaps most sensitively--Papon's defense lawyer and one eminent historian of the period established a distinction between the anti-Semitic legislation of Vichy, which was adopted in 1940 without any German pressure, and the Holocaust itself. The prevalent view until now has been that Vichy facilitated the deportation of Jews by passing these laws in 1940, and there certainly are cases of particularly virulent anti-Semites (especially within the Commissariat-General for Jewish Questions) pursuing Jews to the four corners of the country. The worst such offenders were shot at the Liberation. But Papon's defense lawyer quoted the Swiss historian Philippe Burrin, who said, "Vichy's policy of exclusion [i.e., of Jews] did not lead to Auschwitz." Segregation, however despicable, is not the same as genocide.

In spite of all this, however, the outside world is likely simply to take note of the conviction of a former Vichy official for crimes against humanity, and to conclude that Vichy France is morally and legally equivalent to Nazi Germany. Consequently, if Papon's trial was legally anomalous, its political ramifications may be negative as well. This was precisely the danger that the Gaullist veterans sniffed when they rallied to Papon's support. "Who profits from this trial?", railed Maurice Druon last October: "I'll tell you: Germany, and Germany alone. Tomorrow, Germany will have taken her revenge. Germany is a populous and powerful country which is sure of herself. There is only one thing that can prevent a return of Germany's imperialist demons, and that is the memory of Nazi demons. If we condemn a symbolic Frenchman, it will be easy to say that the French were just as bad. There will be a dilution of blame. It is paradoxical to see the children of the victims of yesterday becoming the accomplices of the children of their executioners."

It would be easy, but very foolish, to dismiss this as the ravings of an elderly French nationalist, determined to put his country's honor above historical truth. Although senior German government officials have expressly denied that they see any dilution of German guilt, at least one German commentator has said that the Germans in general have been watching the Papon trial with Schadenfreude. Another German journalist dismissed Druon in the Frankfurter Allgemeine Zeitung as belonging to "those circles . . . who hold fast to the life-long lies of the post-war period"--the lies being presumably that France itself is innocent because of its Resistance record--"and who", he added darkly, "are not very European-minded."

There is no doubt, in other words, that Vichy itself, and thus perhaps the whole of France, was on trial. Unlike other Frenchmen found guilty of war crimes, Papon's status as a member of the Resistance, Vichy, and the postwar state administration does make him a symbol of the whole country, Gaullists included, and in some respects his conviction condemns them too. France's leading Nazi hunter, Serge Klarsfeld, who worked hard to get Papon to court, and whose son Arno was one of the leading prosecuting lawyers, certainly believes they should be so condemned. He has himself accused the Resistance of being complicit in the Holocaust because it failed to give priority to fighting the Nazis' anti-Semitic persecutions.

As if to clinch the point, one of the prosecuting lawyers was quoted--in the German press, as it happens--as saying on the day of the conviction that, "An important chapter in our national history has been closed. Now France can turn to the future, which is Europe." And, as if by coincidence, the Papon verdict came on the very same day that a ruling in the German constitutional court gave the green light to European Monetary Union, thus leaving the way clear for the monetary nuptials between France and Germany. But the lawyer's remark presumably means that the postwar settlement, according to which France enjoyed moral superiority over an otherwise more powerful Germany as a result of Germany's war record, is now defunct.

The danger is obviously not that some hitherto unadmitted guilt will now be assumed, but rather that the true guilt--Germany's--will henceforth be conveniently dissipated into the anonymity of "Europe." If so, then other European states are about to adopt not only German monetary practices and institutions, but the German past as well. And if this is its consequence, then it is far from clear that the trial has rendered an appropriate service to historical memory or to modern politics. Instead, it may well have severely jeopardized both.

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