by Caroline Fournet. Oxford and Portland, Oregon: Hart Publishing, 2013. 168pp. Hardcover $70.00. ISBN: 9781849463348.
Reviewed by Thérèse O’Donnell, Law School, University of Strathclyde, Glasgow, UK. Email: therese.odonnell [at] strath.ac.uk
The tension between the categorisation of criminal behaviour as genocidal or involving crimes against humanity bedevils so-called ‘atrocity-law’. In 2004 the then-US Secretary of State Colin Powell felt free to describe atrocities in Darfur as ‘genocide’ before the US Senate Foreign Relations Committee. However, the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General concluded otherwise because the crucial element of genocidal intent was absent (at least as far as the central Government authorities were concerned). The same report did, however, consider crimes against humanity and war crimes were in evidence. Similarly, in the academic literature, a vast amount has been published on the shortcomings of the 1948 Genocide Convention and the difficulties of its application in contemporary settings. Indeed, the definition within the 1998 statute of the International Criminal Court (which simply replicated the 1948 text) was criticised as a missed opportunity to revise and reinvigorate the definition and concept of this ‘crime of crimes’. However, rather than pursue the well-trodden path of criticising the 1948 Convention on these grounds, Caroline Fournet attempts to show that in certain instances mistakes lie less in the definitions of crimes than in their judicial interpretation and application.
The author is a recognised expert on the law of genocide and she draws on this expertise in the very particular context of the high-profile French trials arising out of World War II which concerned the notorious crimes of Klaus Barbie, Paul Touvier, Maurice Papon and Aloïs Brunner. Fournet argues that the French courts missed an opportunity to distinguish between genocide and crimes against humanity when they included the crimes in these trials within the category of crimes against humanity. By failing to consider the Jewish victims of Nazism, as facilitated by Vichy, as being targeted due to their belonging to a group defined by the génocidaires, she argues that the “French courts made a mistake of law and of fact”. The mistake of law lay in failing to apply the law of genocide which could and should have been applied – Fournet is critical of the French courts for seemingly considering genocide as a species of a crime against humanity (pp.72-74). She argues that the mistake of fact arises,
‘because it is simply not the same crime to arrest, torture and murder a Resistant fighter because of his political inclinations and actions, and to arrest, torture and murder a Jew because the law states that he is a Jew’ (pp.110-111).
The book is divided into three major [*94] parts. The first deals with the law regarding crimes against humanity, the second focuses on the applicability of the crime of genocide in French law (where Fournet deals with the controversial issue of retroactivity) and the final section analyses why the extermination of French Jews constituted genocide, in particular considering the precise nature of Vichy’s criminality.
The French courts initially found themselves in difficulties during the Barbie case due to the operation of a 1964 French law which suspended the statute of limitations for crimes against humanity. The French Justice Minister had drawn a distinction between crimes against humanity against civilians, especially those of the Final Solution, and war crimes which were committed against combatants (which included Résistants). Thus, the operation of the 1964 statute rendered impossible the prosecution of Résistants (despite Barbie’s brutalisation of them during the war). It was to avoid this exclusion that the Cour de Cassation in December 1985 re-interpreted the legal definition of crimes against humanity to allow for the inclusion of Résistants. Fournet criticises this blurring of the distinction between crimes committed against Jews and those committed against Résistants which in her view should have been categorised as genocide and crimes against humanity respectively. She condemns the Court for failing, as it would do so again in Touvier and Papon, “to adequately qualify the destruction of the European Jews as genocide” (p.14). However, it is clear that for many, even in the mid-1980s, the leitmotif of French wartime suffering was embodied in the iconography of the Résistant rather than the 76,000 Jews deported from France. Of fifteen coffins buried at the tomb of the Unknown Soldier in Paris in the war’s aftermath, several contained Résistants, none contained Jews – not until 1954 was there declared a national day in France to commemorate the Deportation (Finkelkraut, 1992).
In her application of the requirements of the Genocide Convention Fournet acknowledges that a key technical problem for lawyers is the ‘special intent’ requirement of genocide. Although she is attracted to the notion of ‘slow death genocide’ (p.93) as defined by case law from the International Criminal Tribunal for Rwanda (ICTR), the intent required for genocide is that of destroying the group in whole or in part. The intent required for the crime of persecution is that of an attack upon the victims who are specifically targeted for their social, political, racial, religious or other attributes. At least in terms of the threshold which must be reached, there is a distinction. However, Fournet maintains that even if Vichy could not be held liable for elaborating “a genocidal policy sui generis” (Rousso, 78), its creation of the conditions within which the Final Solution could flourish made it guilty of complicity in genocide and state agents such as Touvier and Papon should have been tried for this crime accordingly (p.96).
Fournet carries out an impressive analysis of the jurisprudence from both the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) and finds assistance for her argument from this contemporary case law. However, perhaps this is a slightly unfair backwards glance at the efforts of the French courts. After all, the French courts were working in the legal dark [*95] given the absence of decent jurisprudence until after both the Touvier (April 1994) and Barbie (July 1987) cases. Is it perhaps harsh to criticise domestic courts feeling their way ahead of international tribunals?
Given the grave consequences of convictions for any of these international crimes does the nature of the charge matter? Indeed similar debates to those outlined by Fournet were still taking place years later at the ICTY. In the Jelisić proceedings the accused had received a long prison sentence for crimes against humanity and war crimes. Although the Appeals Chamber considered the Trial Chamber had erred in dismissing the genocide charge it also considered it not in the interests of justice to revisit killings to which the accused had already pled guilty to establish whether they constituted genocide. Fournet addresses this point by looking less to the individual consequences and more to what such a finding obscures in terms of institutions. She considers that Touvier and Papon’s convictions for complicity in crimes against humanity in particular contributed to “minimising Vichy France’s role in the extermination of the Jews” (p.77). Arguably, the invisible hand of politics was being felt in the French courts’ approach which not coincidentally absolved the Vichy regime of being an active, indeed pre-emptively active, agent of Nazism’s genocidal pursuit. To support her argument Fournet gives attention to Vichy’s anti-Semitic laws. The most notorious example of such legislative activity was the Statut des Juifs of October 1940 and the subsequent, even harsher law of June 1941 which, by its wider definition of who constituted a Jew, deprived even more people of their rights, and in fact exceeded the Nazis’ own definition. Her extensive analysis of Vichy laws is very helpful although it was noticeable that she had not chosen to reference Richard Weisberg’s important work on this legislation. Nevertheless, Fournet does give attention to Lochak’s studies and perhaps found those more useful. Drawing on Robert Paxton’s work, Fournet concludes that Vichy, on its own initiative, was at least guilty of instituting a system of apartheid, thereby giving expression to its own anti-Semitism (p.79) and facilitating the Final Solution. Indeed in respect of Touvier and Papon, Fournet considers the ignoring of the charge of genocide and the convictions for complicity in crimes against humanity produce a result incompatible with reality: Touvier as a milicien and Papon as a high civil servant in charge of Jewish affairs in the Gironde were active agents of Vichy’s policy (p.86).
Although there are concerns that legal records should not be allowed to over-reach themselves and challenge the much more complex historical record, there is no doubt that these trials forced a re-examination of France’s wartime past. The Touvier and Papon trials in particular removed any remaining remnants of the Gaullist myth of a national unity of Résistants. Court proceedings take place in particular contexts and, while the technicalities of legal categorisation may have been left wanting, Fournet acknowledges that these trials rescued certain atrocities and victims from anonymity and recognised (to some extent) Vichy’s role in rendering the Nazis’ destructive enterprise more complete. Papon may [*96] ‘only’ have been convicted of complicity in crimes against humanity but the trial’s evidence revealed his acknowledgement that “A reality of troubles, of suffering eventually of death” was what awaited deportees aged 70 or travelling on the last convoy of May 1944. The hand of politics can influence charges but it cannot direct cross-examination leaving onlookers to decide for themselves what an accused did or did not do, did or did not know.
Fournet also makes a good case as regards the problematic legal precedents which the French courts set. As she states there was unquestionable impact of a decade-old (domestic) decision on the interpretation of crimes against humanity at an expert international level (p.19) when ICTY and ICTR chambers relied on Barbie. The book is part of Hart’s Studies in International and Comparative Criminal Law and given the explosion in this area in the last twenty years alone, and as Fournet’s book draws upon both historical perspectives and detailed international criminal jurisprudence, it is very welcome. It is a work which will be of central interest to those working in the specialised field of international criminal law but it undoubtedly has value for those working in the fields of transitional justice and legal systems and methods and is a thoughtful contribution to the academy.
Finkelkraut, Alain. 1992. REMEMBERING IN VAIN: THE KLAUS BARBIE TRIAL AND CRIMES AGAINST HUMANITY, Lapidus Roxanne and Godfrey Sima (trans.)). Columbia University Press.
Paxton, R.O. 2001. VICHY FRANCE – OLD GUARD AND NEW ORDER 1940-1944. Columbia University Press.
Rousso, Henry. 2007. LE REGIME DE VICHY. Paris, Presses Universitaires de France.
Weisberg, Richard. 1997. VICHY LAW AND THE HOLOCAUST IN FRANCE. Routledge.
Copyright 2014 by the Author, Thérèse O’Donnell.