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The Trial of Maurice Papon

1.

On October 22, 1999, Maurice Papon, an eighty-nine-year-old former high-ranking French civil servant, was locked up in the Paris suburban prison of Fresnes, of sinister memory to both sides in World War II. Papon had been condemned on April 2, 1998, to ten years of criminal detention for complicity in crimes against humanity. He was found guilty on two counts of having helped organize the arrest and the deportation of Jewish men, women, and children from Bordeaux, where he was a young functionary of the Vichy regime between 1942 and 1944. He was acquitted, however, of a third count: complicity in their murder at Auschwitz.

Everything about this trial aroused intense attention: the age of the accused and his prominence,1 the fifty-five years elapsed since the incriminating acts, the gravity of the charges and their implications for the French national self-image, and the split verdict in which the jury rejected both the prosecution’s demand for a twenty-year sentence for guilt on all counts and the defense’s plea for acquittal.2 Even the trial’s duration was remarkable: at just under six months, it was the longest criminal trial in French history.

Its end was greeted with relief and the sentence with broad (though far from universal) acquiescence, ranging from the exultant Libération through the erudite Le Monde to the conservative Le Figaro. A “graduated sentence” seemed appropriate for a case that had turned out to be more ambiguous than anticipated. But had it been worthwhile to bring such grave charges against an ill old man for acts done so long ago? (Papon was hospitalized twice during the trial for pneumonia, and took leave near the end to bury his wife of sixty-six years, who died on March 25, 1998.) Of all the many French officials who had assisted in some way with the deportation of Jews, Papon alone was charged with complicity in crimes against humanity. Even two attorneys for the victims’ families admitted to feeling “queasiness” (malaise).

Papon rebounded into the headlines on October 11, 1999, when he disappeared shortly before his appeal was to be heard by the highest French appeals court, the Cour de Cassation. He was discovered ten days later in a modest hotel in the Swiss ski resort of Gstaad, under a name borrowed from a friendly Resistance veteran, Robert de La Rochefoucault. The Swiss government expelled him the next day to France, and he was immediately taken to Fresnes.3

It was remarkable enough that Papon was tried at all. France and Germany are the only major World War II belligerents to have tried any of their own citizens for crimes against humanity for acts committed in that war. The often-expressed American view that the French won’t confront the dark side of their response to Nazi occupation has been false for thirty years. Ever since students began challenging their elders’ reticence in 1968, France has undergone binges of self-scrutiny, whose feverish and repetitive character led Henry Rousso to give his book on history and memory the title “The Vichy Syndrome.”4 Americans may be even less willing to take a hard look at their own past, to judge by the angry objections that greeted a cautiously balanced exhibition about the atomic bombing of Japan and anodyne presidential regrets about slavery.

Before Papon could be brought to trial on charges of complicity in crimes against humanity, deep social and cultural changes had to take place in France. One was simply the passage of the wartime generation. French President Chirac (eight years old in 1940) endorsed the trial publicly, in striking (and intentional) contrast to his predecessor François Mitterrand (twenty-four in 1940).5 Mitterrand, who, like many others his age, had served Marshal Pétain’s Vichy regime enthusiastically before joining the Resistance in 1943, quietly obstructed any judicial probing of similarly sinuous pasts.6 The Papon trial clearly involved a battle of generations. All of the magistrates and eight of the nine jurors were born after 1940, while Jean-Marc Varaut, Papon’s principal defense attorney, was sixty-five. Polls showed lower approval among the elderly for the trial and its outcome.

A related change was the replacement of the postwar historiography which held that Vichy had been the government of a few traitors who passively accepted Nazi orders while the vast majority of the French people sided at once with the Resistance. More recent scholarship and school textbooks reflect a view more solidly based on both German and French archives: that the Vichy regime was broadly supported, especially among the French administrative and economic elite. It used its quasi independence to take ambitious initiatives both internally (the “national revolution,” designed to transform France into an authoritarian, ethnically homogeneous state) and externally (repeated efforts to reach a more permanent settlement with Germany in order to play a role in its “New Europe”).

A third necessary preparation was a new militancy on the part of Jewish victims’ families. In 1945, the survivors had not wanted to say much. Some of them feared revived anti-Semitism.7 Others felt survivors’ guilt. Many simply hoped to get on with their lives. While Vichy’s anti-Jewish actions had not been entirely ignored in the postwar purge trials, they had been understood there exclusively as Nazi-inspired. The survivors replaced their postwar reticence in the 1970s with an intense anxiety that their story would be forgotten. Michel Slitinsky, who had escaped at seventeen when the rest of his family was taken in the night of October 19-20, 1942, was among the first to press charges against Papon in 1981 and stuck with the case to the end.

The new historiography served the victims’ cause. It showed that Vichy France was unique in occupied Western Europe for having enacted its own anti-Semitic laws independently of German wishes, and for offering up Jews to the Nazis from parts of France in which there were no German occupying forces. German policy at first, in 1940, was to expel its own Jews into the unoccupied zone of France; the Nazis had no desire to do defeated France the honor of making it Judenfrei. Vichy officials acted without German pressure to exclude Jews from the civil service and from cultural professions (Jewish statutes of October 3, 1940, and June 2, 1941), to make lists of their names and addresses, and to reduce Jewish influence in the economy (law of July 22, 1941), among a multitude of other measures.

Although Vichy’s own anti-Jewish measures envisioned discrimination rather than extermination, they were helpful to the Nazis’ more drastic project of extermination that began to be applied in France in 1942. In the 1970s surviving victims and their families, led by the indefatigable lawyer-activist Serge Klarsfeld, began legal proceedings in an effort to give some form of judicial recognition to Vichy’s responsibility.

The only charge on which Vichy officials could still be brought to justice so long after the fact was crimes against humanity. (Under French law, murder cannot be prosecuted after twenty years.) The charge of crimes against humanity, created retroactively by the Allied governments at the end of World War II for the purpose of trying the Axis leaders, was incorporated into the French criminal code in December 1964, without any time limit, because German war crimes proceedings were about to expire under a statute of limitations. Having entered French law to be used against Germans, the charge of crimes against humanity began to be brought against French citizens in the 1970s, as sensitivity to Vichy’s role as auxiliary to the Holocaust heightened.

In order to be guilty under French law of crimes against humanity, according to the Cour de Cassation, an accused person must have carried out acts of racial, religious, or political persecution “in the name of a State practicing a policy of ideological hegemony” (i.e., Nazi Germany). That definition was easy enough to apply to the first such case, that of SS officer Klaus Barbie, “the butcher of Lyon.” Barbie was condemned to a life sentence in July 1987. The law posed difficulties, however, when applied to French citizens who acted under Vichy authority. Paul Touvier, an officer of the para-police Milice who had ordered the execution of Jews and resisters in the summer of 1944, was the first French citizen to reach trial on charges of crimes against humanity. The Paris Chambre d’Accusation, the court that oversees prosecutions, quashed his indictment in 1992 on the grounds that Vichy was not “a State practicing a policy of ideological hegemony.” The Cour de Cassation put Touvier’s trial back on the rails in a different city (Versailles) by finding that Touvier had acted on behalf of the Gestapo. This ruling worked juridically—Touvier was condemned to a life sentence in April 1994—but did violence to historical scholarship, for Touvier had answered to Vichy and acted on his own.

Maurice Papon was charged only with complicity in crimes against humanity, in recognition that he had not been a prime instigator. The Cour de Cassation ruled in January 1997 that in order to find Papon guilty, the court must make two findings: that the accused lent “active assistance to the criminal action” of the Nazis and that he was aware that this action was part of a “concerted plan” of persecution. For crimes against humanity, unlike common law crimes, are not simply individual acts but are defined as part of a general “project” of persecution—in this case, persecution of Jews. Though Papon had to have been aware of the plan’s existence in order to be found guilty of complicity, he was not required to have adhered to it ideologically. These adjustments gave Papon’s defense and some commentators on the trial the opportunity to charge that jurisprudence was being shaped to fit the needs of the moment.

Although Papon’s trial was officially the trial of one man, its proponents saw in it the last chance to bring into the dock an official who could be seen as representative of the Vichy administration itself. After the Liberation of 1944, France had purged its wartime leadership, energetically if unevenly.8 The defendants in this “first purge,” however, had been charged as individuals with personal acts of treason (“intelligence with the enemy”). The current “second purge,” based on crimes against humanity, prosecutes participation in a collective project of extermination. With Papon, for the first time, a French court of law had to judge whether the routine acts of a Vichy civil servant, in obedience to orders from French superiors, constitute crimes. For the accused was not a bloody-handed killer, like Barbie or Touvier, but an obedient official charged with what the prosecution called “office crimes,” signing documents that set in motion the mechanisms by which Jews were rounded up and deported. (One must underline, of course, that in 1942 in Vichy France harsh acts against Jews were routine.)

When Papon’s trial opened in the elegant eighteenth-century Assise Court in Bordeaux on October 8, 1997, the case against him seemed overwhelming; protesters dogged his steps and no local hotel would rent him a room. He had been secretary-general of the Prefecture of the Gironde at Bordeaux between 1942 and 1944—in effect, the prefect’s executive officer. He had been given direct responsibility for the prefecture’s Department of Jewish Affairs (Service des Questions Juives), a Vichy creation. During that period the prefecture rounded up, at Nazi request, 1,560 Jewish men, women, and children in the Bordeaux region, and transported them from Bordeaux to Drancy. (At first Papon supplied passenger cars; later the Nazis specified cattle cars with a bucket at each end.) At Drancy, a Paris suburb that one passes nowadays on the suburban train to Charles de Gaulle airport, the Vichy French administration lodged the deportees temporarily in an unfinished apartment block that served as a transit camp. When enough people had accumulated to fill a train, they were loaded and shipped “to the East.” Only at the German frontier did the French police transfer custody to Nazi authorities, who took the victims on to Auschwitz. In all, 75,721 Jews were deported from France in this fashion, between 1942 and 1944, and only 2,564 returned.9

  1. 1

    Other than prefect of police of Paris (1958-1967), Papon’s most visible post was budget minister in the government of Raymond Barre (1978-1981). When Papon was still minister, at the politically sensitive moment between the first and second round of the presidential election of 1981, the first documents from the Bordeaux archives implicating him in the wartime deportations of Jews were published by the Paris satirical weekly Le Canard Enchaîné.

  2. 2

    In French criminal trial procedure, the presiding judge and his two assistants sit with the nine citizen jurors to compose a jury of twelve. At least eight must vote for a verdict, and at least seven for a sentence. This means that a defendant can be convicted even if four of nine citizen jurors believe he is innocent. But we know nothing of the vote in this case.

  3. 3

    Papon had remained at liberty pending his appeal to the Cour de Cassation. Although that appeal was voided when he failed to show up, Papon’s attorneys have indicated that they will appeal to the European Human Rights Court at Strasbourg. Papon could also face new charges concerning many Algerians, allegedly killed by police, found floating in the Seine on October 17, 1961, when he was prefect of police of Paris. That matter resurfaced because an essential element of French (unlike Anglo-American) criminal procedure is the establishment of the accused’s life story.

  4. 4

    See Henry Rousso, The Vichy Syndrome: History and Memory in France Since 1944 (Harvard University Press, 1991); and Eric Conan and Henry Rousso, Vichy: An Ever-Present Past (University Press of New England, 1998).

  5. 5

    On July 15, 1995, President Chirac made the public statement of collective French responsibility for Vichy’s misdeeds that Mitterrand had always rejected.

  6. 6

    Pierre Péan, in Une Jeunesse française: François Mitterrand, 1934-1947 (Paris: Fayard, 1994), first presented in detail the extent of the involvement in Vichy of France’s first socialist president. Those who object to trying an eighty-seven-year-old should recall that Papon’s case was stalled by his friends for sixteen years.

  7. 7

    Renée Posnanski, in Etre juif en France pendant la Seconde Guerre mondiale (Paris: Hachette, 1994), pp. 672-676, notes anti-Jewish incidents in liberated Paris, some set off by the efforts of Jewish returnees to recover their property. Some feared the Papon trial would also revive anti-Semitism.

  8. 8

    Over 1,500 were executed after trial, following about 9,000 killings that were carried out, with little or no formal procedure, against alleged collaborators during and just after the Liberation. Over 38,000 were sentenced to prison. Peter Novick’s The Resistance Versus Vichy (Columbia University Press, 1968) remains the basic history of the postwar purge, though the number of executions after trial has been revised upward by recent research. See Henry Rousso and François Rouquet, “Dossier: l’épuration en France à la Libération,” Vingtième siècle: revue d’histoire, No. 33 (January-March 1992), pp. 78-125.

  9. 9

    Serge Klarsfeld, Le Calendrier de la persecution des juifs en France, 1940- 1944 (Paris: Association Les Fils et Filles des Déportés Juifs de France, 1993), pp. 1091, 1125. This is the most exact source for information concerning the Holocaust in France.

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