1 The Milice was established by Law No. 63, of 30 Jan. 1943 as a special military force for combatting the Resistance and other enemies of the Vichy government. See also Jean-Pierre Azéma, “Les hommes en Noir de la Milice,”Le Monde, 17 March 1994, Special Supp., p. IV. See also infra notes 29–32 and accompanying text.Google Scholar

2 The murders were carried out by the Milice in retaliation for the Resistance's execution of Phillip Henriot, a high-ranking Vichy official. For a description of the massacre at Rillieux as well as the role of the French Milice during World War II, see Leila Sadat Wexler, “The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again,” 32 Column. J. Transnat' L. 289, 292–93 (1994).Google Scholar

3 Touvier was indicted on 2 June 1993 by the Indicting Chamber of the Court of Appeals of Versailles. Judgement of 2 June 1993, Cour d'Appel de Versailles (ler) (hereinafter Touvier V). He appealed this decision and lost. Cass. Crim. 21 Oct. 1993 (hereinafter Touvier VI). All citations to the Touvier V and Touvier VI decisions are to the unpublished entire versions, copies of which, as filed with the Clerk of Court, are on file with the author. His trial opened 17 March 1994, and he was convicted of “complicity to commit crimes against humanity” by the Court of Assizes of the Department of the Yvelines on 20 April 1994.Google Scholar

4 See generally Wexler, 32 Colum.J. Tramnat'l L. Nuremberg established a clear precedent for the prosecution of government officials who commit crimes against humanity against their own citizens. What is especially noteworthy about the Touvier case, however, is that unlike the Nuremberg trials, it was the French government (not a foreign government or an international tribunal) that was doing the prosecuting (and was doing so under municipal law).Google Scholar

5 I am not referring to the debate about whether the current prosecution was based on a retroactive law but rather whether, assuming that his prosecution under the 1964 law (Law No. 64–1326, further described in note 49 infra) does not raise any ex post facto problem, it is not only legally but morally justifiable.Google Scholar

6 Other public forums include white papers, documentaries, books, sermons, and eleccoral campaigns. See Robert Hariman, “Introduction” in Hariman, ed., Popdular Trials: Rhetoric, Mass Media, and the Law 27 (Tuscaloosa: University of Alabama Press, 1990) (“Hariman, Popular Trials”). Google Scholar

7 J. Alexander Tanford, “A Political-Choice Approach to Limiting Prejudicial Evidence,” 64 Ind. L.J. 831, 831 (1989).Google Scholar

8 Indeed, Roscoe Pound argued at the turn of the century that one of the primary causes of the public's dissatisfaction with the administration of justice was the common law's tendency to turn litigation into a game: “The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors, in particular cases, but to give to the whole community a false notion of the purpose and end of law.” Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice,” 40 Am. L. Rev. 729, 738 (1906).Google Scholar

9 See infra note 106.Google Scholar

10 J. Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal 8 (Flanders: O'Hare Books, 1968). It is interesting, however, that Ralph Schoenman's Foreword to the published proceedings specifically states that “the Tribunal never pretended to be a trial. How could we have had a trial? We lacked state power. We never attempted an adversary proceeding. That is why we called the body a Tribunal rather than a court.” See also B. Russell, War Crimes in Vietnam (London: George Allen & Unwin, 1967).Google Scholar

11 See “Interim Report of the Kanaka Maoli Nation, Plaintiff v. United States of America, Defendant, Ka Ho'okolokolonui Kanaka Maoli People's International Tribunal, Hawai'i 1993, 12–21 Aug. 1993 (on file with the author). My thanks to Professor Sally Merry for information about this trial.Google Scholar

12 Thurman Arnold, “The Criminal Trial as a Symbol of Public Morality,” in A. E. Dick Howard, ed., Criminal Justice in Our Time 137 (Charlottesville: University Press of Virginia, 1965) (“Arnold, ‘The Criminal Trial’). As examples, Arnold points to the McCarthy era “trials” and the trial of Jeanne d'Arc for heresy in 1431. Another example would be the show trials held by Stalin in the 1930s.Google Scholar

13 Hariman, Popular Trials at 2. While recognizing that “the more a trial appears to be a scene or product of public controversy and rhetorical artistry, the less legitimate it appears” (id. at 3), Hariman nevertheless argues that a popular trial may be “the best forum for articulating and judging competing beliefs”(id. at 25). While it may be true that popular trials are powerful vehicles for focusing public debate on a particular issue, I am unconvinced that they can resolve that debate. Nor am I convinced that their use as public discourse is necessarily appropriate–fairness to the individual defendant, a fundamental tenet of a democratic society, requires that criminal trials be maintained in an atmosphere of impartiality, decorum, and adherence to law. None of these goals is served through the “popularization” of a criminal trial. I should add that my opinion is necessarily governed by my training, not as a sociologist, but as a lawyer. For an expression of similar views, see Richard A. Matasar, “Trial Narratives and the Study of Law: Some Questions,” 76 Iowa L. Rev. 207 (1990) (reviewing Hariman, POular Trials (cited in note 6)).Google Scholar

14 Hariman, Popular Trials 18, colorfully describes these as “signposts in the history of the west.”Google Scholar

15 In 1925, John Thomas Scopes was tried for violating Tennessee's anti-evolution law. See the essay about the trial's sociopolitical importance as a symbol of the struggle between science and religion by L. Bernabo & C. Condit, “Two Stories of the Scopes Trial,” in Hariman, Populm TriaL 55.Google Scholar

16 On 22 December 1894 Alfred Dreyfus, a French army officer, was convicted of treason and sentenced to life imprisonment. His conviction, lauded at first in the press as a triumph over a “Jewish conspiracy,” later proved to be based on false evidence and forgeries. The controversy grew, and the debates in the press went far beyond Dreyfus's guilt or innocence but raised fundamental questions about individual freedom, state power, and anti-Semitism.Google Scholar

17 Trials may take on public importance as a result of an individual's prosecution or from his defense. Thus the popularization of the Chicago Seven trial was to a large part instigated by the defendants themselves in an effort to turn the trial into a debate on the US. involvement in Vietnam. For a discussion of whether they succeeded, see Juliet Dee, “Constraints on Persuasion in the Chicago Seven Trial,” in Hariman, Popular Trials 86 (cited in note 6).Google Scholar

18 In April 1992, riots erupted in Los Angeles following a jury verdict acquitting four police officers on most of the charges lodged against them on the beating of black motorist Rodney King. A subsequent trial in federal court charging the defendants with violating King's civil rights resulted in lenient sentences for two of the four defendants. The trial is one of several racially charged trials that have been perceived as symbolizing racial tension in the United States. See Ben Maclntyre, “Trials in Three Cities Fan Embers of American Race Hatred,”Times (London), 25 Aug. 1993 (available in LEXIS, NEXIS Library); William Murchison, “The Jury of the Streets–and Its Influence on Trials,”Tex. Law., 18 May 1992 (available in LEXIS, NEXIS Library) (arguing that the extensive media coverage “tampered” with the smooth and impartial functioning of the jury system).Google Scholar

19 See Haynes Johnson, “There's Some Cause for Pride in Democracy,”St. Pemsburg (Fh.) Times, 25 April 1989, at 12A (available on LEXIS, NEXIS Library).Google Scholar

20 It is, of course, risky to compare examples from American law and culture with French law and culture, particularly as regards trials, for the American and French legal systems (and the popular culture in which those systems are embedded) are very different. It has repeatedly been observed that the French courts have much less power and a much more restricted social role than their American counterparts. See, e.g., D. Radamaker, “The Courts in France,” in J. Waltman & K. Holland, eds., The Political Role of Law Courts in Modern Democracies 129 (Ipswich, Eng.: MacMillan, 1989) (pointing out, however, that “the generalization, 'American courts are more political than French courts and French courts more academic than American courts' though an essential starting point for a comparative study, covers over complexities which reward study though they confuse comparison”). The French system is often described as “inquisitorial” rather than adversarial; indeed, many would be surprised to learn that there is a jury trial for felony cases in France. While acknowledging the risks of comparison, at least with respect to this essay, which focuses as much on the public perception of the trial as on the comparative legal doctrines involved, there are probably more similarities than differences between the United States and France, making it possible to compare one country with the other.Google Scholar

21 Hariman (Popular Trials 2; cited in note 6) suggests that a “popular trial” is one which gains the attention of a general audience, usually through sustained coverage by the mass media. Such coverage typically involves descriptions of the proceedings, biographies of and interviews with the principals, and commentary about both the issues of the trial and the conduct of the trial [they] typically have additional characteristics such as the oddity of the crime, great intensity in audience response, and special media representation. In addition, many are political trials, dealing with fundamental questions of the government's power and legitimacy, the citizen's rights and obligations, and the mediating role played by major cultural institutions and texts.Google Scholar

22 Article 308 of the French Code of Criminal Procedure (hereinafter C. Pr. Pén.) forbids the filming of criminal trials. Under Law No. 85–699, dated 11 July 1985, however, a trial may be filmed if it has historical import. The film is placed in the French national archives, where it may be consulted with special permission until 20 years have passed, after which time access is open to anyone. Reproduction is also possible under certain circumstances.Google Scholar

23 See infra notes 68–71 and accompanying text.Google Scholar

24 Of course, there could not be a “debate” about Vichy or Touvier without dissenters as to Vichy's role during the war. During Touvier's trial the press of the far right played such a role. Cf. Eric Stein, “History against Free Speech: The New German Law against the ‘Auschwitz’–and Other–Lies,” 85 Mich. L. Rev. 277, 279 (1986) (pointing out that the “revisionists” have been relatively successful in France in gaining access to the press and entangling academic historians in a “debate” about whether the Holocaust ever happened).CrossRefGoogle Scholar

25 For an account of the occupation period, see the seminal work of Robert O. Paxton, Vichy France: Old Guard and New Order, 1940–1944 (New York: Alfred A. Knopf, 1972). See also Henry Rousso, The Vichy Syndrome, trans. Arthur Goldhammer (Cambridge, Mass.: Harvard University press, 1991) (“Rousso, Vichy Syndrome”); John F. Sweets, Choices in Vichy France (New York: Oxford University Press, 1986); Jean-Pierre Azéma & Francois Bédarida, eds., Vichy et les Français (Paris: Fayard, 1992).Google Scholar

26 Constitutional Law of 10 July 1940, signed on that date at Vichy by Albert Lebrun, then President of the Republic of France.Google Scholar

27 Decree of 8 July 1940. See also Georges Vedel, Manuel de Droit Constitutionnel 258 (Paris: Sirey, 1949).Google Scholar

28 Contrast, e.g., Robert Paxton's work (cited in note 25) with that of Francois-Georges Dreyfus, Histoire de Vichy (Vérités et légendes) (Paris: Perrin, 1990). Dreyfus asserts that Vichy had concluded a secret agreement with Churchill in London and was thus always acting to maintain the freedom of France vis-à-vis the Germans. Paxton decisively refutes Dreyfus's theories, see, e.g., Robert 0. Paxton, Book Review, 97 Am. Hist. Rev. 220–21 (Feb. 1992), as does Rousso, Vichy Syndrome. See also Jean Planchais, “Vichy revu et corrigé,”Le Monde, 8 Feb. 1991 (available in LEXIS, NEXIS Library, Monde File); René Redmond, “Débats: Point de Vue: La complexité de Vichy,” Le Monde, 5 Oct. 1994 (available in LEXIS, NEXIS Library, Monde File) (Vichy had many facets and cannot be reduced to a single element, but there are four or five distinct elements: the armistice, the nearly unanimous adherence and confidence in Pétain, the idea of founding a new order, the exclusion of the Jews, and collaboration designed to assure France a favorable place in a German Europe. Redmond argues that initial acceptance of the Vichy regime does not necessarily imply adherence to all these elements).Google Scholar

29 See Azéma, Le Monde, 17 March 1994 (cited in note 1).Google Scholar

30 Touvier V at 32 (cited in note 3). See also Laurent Greilsamer & Daniel Schneidermann, Un Certain Monsieur Paul (Paris: Fayard, 1989) (“Greilsamer & Schneidermann, Un Certain Monsieur Paul”). Google Scholar

31 Rousso, Vichy Syndrome 118 (cited in note 25).Google Scholar

32 John F. Sweets, The Politics Of Resistance in France, 1940–1944 at 27 (DeKalb: Northern Illinois Press, 1976) (“Sweets, Politics of Resistance). See also Herbert Lottman, The Purge 22 (New York: William Morrow & Co., 1986) (“Lottman, Purge”) (“even the customarily imperturbable pétain was to protest against the ‘evil behavior’ of the [Milice]”). See generally J. Delperrie de Bayac, Histoire de la Milice 1918–1945 (Paris: Fayard, 1969).Google Scholar

33 See infra note 44 and accompanying text.Google Scholar

34 Indeed, it probably made matters worse. Sweets, Politics of Resistance 213, puts the purge at about 10,000 Frenchmen, executed at the hands of other Frenchmen, without a proper trial. Others have put the number as high as 40,000. Sweets writes (at 216–17):Google Scholar

The phenomenon of the purge cannot be understood without a consideration of the circumstances that surrounded it. The French had suffered through four long years of Nazi occupation. The resisters had suffered hunger and humiliation, had often seen their families and best friends tortured or executed. Some, such as the hated Milice and the informers, had actually helped the Gestapo track down patriotic Frenchmen. [Tlhe purge was a sad capstone to the resistance epoch, and it wrought a heavy toll. Although the occasional mistakes and summary executions are to be regretted, given the circumstances, they probably could not have been avoided.Google Scholar

35 Éric Conan & Daniel Lindenberg, “Que Faire de Vichy?” in Esprit, May 1992, at 9 (“Conan & Lindenberg, ‘Que Faire’).Google Scholar

36 See also Éric Conan & Henry Rousso, Vichy, un passé qui ne passe pas (Paris: Fayard, 1994). See Robert 0. Paxton, “La Spécificité de la persécution des juifs en France,”Annales ESC, no. 3, at 605 (1993); Henry Rousso, “Une Justice Impossible: L'épuration et la politique antijuive de Vichy,” Annales ESC, no. 3, at 745 (1993).Google Scholar

37 See infra note 63. Some place the number deported as high as 90,000. Richard Weisberg, “Legal Rhetoric under Stress: The Example of Vichy,” 12 Cardozo L. Reu. 1371, 1372–73 & n. 1 (1991).Google Scholar

38 French President François Mitterand has repeatedly spoken out in favor of “national reconciliation” between former members of the Vichy regime and those who resisted it or were its victims. During the Touvier trial he was vigorously criticized in the French press for statements he made to this effect. See “Le procès de Paul Touvier: M. Mitterand estime que l'ancien milicien ‘appartient à une sorte de pegre politique,’Le Monde, 14 April 1994 (available in LEXIS, NEXIS Library, Monde File); Laurent Greilsamer, “Paul Touvier et les oublis presidentiels: Comme Georges Pompidou, il y a vingt ans, François Mitterand se dit partisan de la reconciliation nationale,”Le Monde, 19 April 1994 (available in LEXIS, NEXIS Library, Monde File).Google Scholar

39 See, e.g., Robert Belleret, “Paul Touvier, un collaborateur dans ['Histoire: La lente imprégnation des manuels scolaires,”Le Monde, 17 March 1994, Special Supp., p. VI1.Google Scholar

40 See, e.g., Ken Christie, “Antisemitism Scars Live on in Modem France,”Straits Times, 4 Jan. 1994 (available in LEXIS, NEXIS Library).Google Scholar

41 Laurent Greilsamer, “L'entretien télévisée de M. Mitterrand: Des procédures judiciaires ralenties,”Le Monde, 14 Sept. 1994 (available in LEXIS, NEXIS library, Monde File) (“Greilsamer, 'L'entretien télévisée'”). For a criticism of Mitterand's logic, see Edwy Plenel, “Le débat sur le rô1e de Vichy dam les déportations: La République et l'oubli: La continuité de l'état est au centre de la poltémique sur le regime de Vichy,”Le Monde, 20 July 1992 (available in LEXIS, NEXIS Library, Monde File) (“Mitterand's statement is legally true, historically false and politically incomplete”). Two representatives of the National Assembly, Jean-Pierre Philibert and Alain Marsaud, called for the creation of a special commission to investigate Mitterand's interference in the Bouquet prosecution. They withdrew their resolution after incurring the intense disapproval from their colleagues. F.B., “Une décision de la commission des lois de I'Assembleé Nationale: il n'y aura pas d'enqûete parlementaire sur le cas de René Bousquer,”Le Monde, 2 Dec. 1994, at 9. Mitterand's conduct may have escaped investigation by the legislature but not by the press. See, e.g., Pierre Bimbaum, “Débats: la France et Vichy: Sur un lapsus prédentiel,”Le Monde, 20 Oct. 1994 (available in LEXIS, NEXIS Library, Monde File).Google Scholar

42 See infra note 124 and accompanying text.Google Scholar

43 To say that Touvier was a “minor” figure does not, however imply that he was powerless. By the time of the massacre at Rillieux, he had risen through the command Structure of the Milice to become regional head of the second division at Lyon, in charge of intelligence and operations.Google Scholar

44 He was also convicted several times of theft. Pierre Bois, “Touvier un fugitif devant l'histoire,”Le Ftgaro, 17 March 1994, at 12.Google Scholar

45 The history of the Touvier prosecution and Touvier's participation in the Milice are set forth in the many court decisions in this case and in Wexler, 32 Colum. 1. Transnat'l L. at 316–32, 345–54 (cited in note 2). See in particular Greilsamer & Schneidermann, Un Certain Monsieur Paul 109–11 (cited in note 30).Google Scholar

46 Extinctive criminal prescription bars the prosecution of a defendant by the state (I'action publique) or the imposition of the punishment (la peine), if either has not been brought or carried out prior to a certain, statutorily established period of time. In the case of prescription of the punishment, although the criminal sentence may not be carried out, the record of the conviction and the associated civil penalties remain. Although this legal provision is similar to a common law “statute of limitations,” this essay has transcribed the term “prescription” to refer to the French doctrine of prescription and the transitive verb “prescribe.” See Martin Weston, An English Reader's Guide to the French Legal System 30 (Providence, R.I.: Berg, 1991) (“Weston, English Reader's Guide'). The Lyon judgment prescribed on 10 Sept. 1966. The Chambéry judgment prescribed on 4 March 1967.Google Scholar

47 Touvier's support by certain members of the Catholic church was part of what scandalized the French public so. See, e.g., René Rémond et al., Paul Touvier et I'Eglise (Paris: Fayard, 1992), reviewed by Robert 0. Paxton, 97 Am. Hist. Rev. 1543–44 (Dec. 1992); Nicolas Brimo, “L'ancien Chef Milicien Paul Touvier Chouchou de l'Ecclesiastic Connection,” ' Le Canard Enchainé, 23 March 1983.Google Scholar

48 Report dated 10 June 1970 by Police Commissioner Jacques Delarue, reprinted in Greilsarner & Schneidermann, Un Certain Monsieur Pad 237–54, at 252 (cited in note 30). Pompidou explained the pardon thus: “Are we to keep the scabs of our national disagreements bleeding forever. Has not the time come to draw down the veil, to forget these times where the French did not love each other, destroyed and even killed each other?”Touuier V at 45 (cited in note 3). The trial did not shed much light on the circumstances of Touvier's pardon. Anne-Marie Dupuy, Pompidou's Chief of Staff (Chef du Cabinet), recalled presenting Touvier's file to Pompidou at the request of a prominent clergyman, Mgr. Duquaire, because she felt sorry for Touvier's children, who were living like pariahs. She claimed that she never read the file, however, and now regrets having been such an effective advocate for Touvier with President Pompidou. Pierre his, “Paul Touvier devant les assises des Yvelines: Un chapelet de souvenirs,”L.e Figaro, 25 March 1994, at 1.Google Scholar

49 The 1964 Law provided: Law No. 64–1326 declaring the imprescriptibility of crimes against humanity Sole article–Crimes against humanity, as defined by the United Nations' Resolution of February 13, 1946 taking account of the definition of crimes against humanity figuring in the Charter of the International Tribunal of August 8, 1945, are imprescriptible by their nature.Google Scholar

50 It is no secret that all the cases pending against former French collaborators have proceeded inordinately slowly. See, e.g., Conan & Lindenberg, “Que Faire” at 6–7 (cited in note 5). As noted earlier, François Mitterand recently admitted that he ordered that the prosecution of certain persons accused of crimes against humanity be slowed. Greilsamer, “L'entretien télévMe” (cited in note 41).Google Scholar

51 Barbie was head of the intelligence section of the Gestapo at Lyon after Lyon's recapture by the Germans in November 1942. He was tried under the 1964 law for crimes against humanity and sentenced to life imprisonment on 4 July 1987. He died in prison on 25 Sept. 1991. See Wexler, 32 Colum. J. Transnat'l L. at 332–33, 34 n.247 (cited in note 2).Google Scholar

52 Bruno Marion & Brigitte Rinaldi, “40 ans aprés, Touvier devant la justice,”Libération, 25 May 1989, at 2.Google Scholar

53 By the time the case was finally ruled on after an extensive investigation by Judge Getti, there were 40 civil parties (see infra text accompanying notes 117–19)–18 complainants (poursuivants) and 22 intervening parties-and 11 separate charges against Touvier. The charges were:Google Scholar

1. Touvier organized the bombing of the Synagogue at Quai Tilsitt in Lyon on 10 Dec. 1943;Google Scholar

2. Touvier organized and/or participated in a raid by the Milice of Mrs. Vogel's family, and others, which occurred on 13 June 1944;Google Scholar

3. Touvier participated in the assassination of Victor and Hélène Basch on 10 Jan. 1944;Google Scholar

4. Touvier, among others in the Gestapo and the Milice, on 16 Jan. 1944 arrested a resister, Jean de Filippis, who was later tortured (in Touvier's presence) and deported;Google Scholar

5. Touvier arrested and tortured André Laroche on 29 March 1944;Google Scholar

6. Touvier participated in a raid at the Pré de Foire de Montmelian on 24 April 1944;Google Scholar

7. Touvier arrested Albert Nathan on 17 August 1944 and later assassinated him;Google Scholar

8. Touvier participated in the Milice's arrest and torture of Emile Medina on 19 May 1944;Google Scholar

9. Touvier participated in the arrest and torture of Robert Nant on 27 May 1944;Google Scholar

10. Touvier participated in the massacre at Rillieuxla–Pape on 29 June 1944;Google Scholar

11. Touvier was responsible for the arrest and deportation of Eliette Meyer and Claude Bloch. as well as the assassination of Lucien Mever, on 29 rune 1944.Google Scholar

The 5 prosecutable offenses according to Judge Getti were nos. 1, 3, 4, 10, and 11. According to the judge's findings, the evidence was insufficient to support an indictment on the other counts. Decision of the Chambre d'Accusation of the Cour d'Appel de Paris, 13 April 1992, at 30–33 (hereinafter Touvier III). All cites to the Touvier III decision are to the entire unpublished version as filed with the Clerk of Court, a copy of which is on file with the author.Google Scholar

54 French criminal law divides offenses into three categories: crimes, délits, and contraventions. These divisions correspond roughly to felony, misdemeanor, and petty offenses, respectively. Felonies, or crimes, are tried to the Court of Assizes. In addition to their trial by a special court, crimes are subject to extensive pretrial review, involving first the juge d'instruction, then the appellate review by the Chambre d'Accusation (indicting chamber). C. Pr. Pén. arts. 79, 191, 211–14.Google Scholar

55 French court decisions are generally noted for their cryptic brevity, making the 215–page decision of the Paris Court of Appeals particularly remarkable.Google Scholar

56 The Paris Court of Appeals took an extremely jaundiced view of all the testimony presented to it except for Touvier's, making the court's ultimate decision somewhat suspect. See Wexler, 32 Colum. J. Transnat'l L. at 350 (cited in note 2). See also infra note 122.Google Scholar

57 See supra note 2.Google Scholar

58 Judgment of 20 Dec. 1985, cass. crim., 1986 J.C.P. I1 G. No. 20,655.Google Scholar

59 There is no accepted definition of what a “hegemonic” state is, or what the French courts intended by the use of this term. A close reading of the Touvier 111 decision tells us that Nazi Germany is considered a “hegemonic state” and that Vichy France is not an hegemonic state, and suggests that the two were different because the former (but not the latter) had as its official policy the extermination of the Jews, but is otherwise unhelpful. For an analysis of the decisions in the Barbie and Touvier cases discussing this criterion, see Wexler, 32 Colum. J. Transnat'l L. at 359–61. See also the interesting discussion of “hegemony” and its definition in Lea Brilymayer, American Hegemony: Political Morality in a One-Superpower World 14 (New Haven, Conn.: Yale University Press, 1994). In the international context, she suggests that “[h]egemony, basically, is leadership.”Google Scholar

60 Touvier I11 at 206. For example, the court states that none of the speeches of Maréchal Pétain contained anything that was anti-Semitic.Google Scholar

61 Touvier III at 209.Google Scholar

62 Of French men and women, 73% reported that they were “shocked” by the decision. “73% des Français sont 'choqués' par le non-lieu,”Le Morde, 17 April 1992. A document entitled “Nous Accusons” (after Zola's J'accuse) was signed and published by 188 famous personalities accusing the three appeals judges of a miscarriage of justice. “Aprés le non-lieu accordé & Touvier, Nous Accusons,”L'Evenement du Jeudi, 7–13 May 1992, at 22. Conan & Lindenberg, “Que Faire,” at 6 (cited in note 35), speak of the general “stupefication” of the public in reading the decision. See also Théo Klein, Qublier Vichy? A propos de I'arręt Touvier (Paris: Criterion, 1992). The French National Assembly denounced the verdict. Pascale Robert-Diard, “Le Parti de l'indignation,”Le Monde, 16 April 1992, at 8; see also Michel Massé, “L'affaire Touvier L'échappée belle,”Rev. Sci. Crim. 372 (1993).Google Scholar

63 See Michael Marrus & Robert Paxton, Vichy France and the Jews 3–5, 12 (New York: Basic Books, 1981) (Vichy passed laws on the Jews (le statut des juifs) prior to any German dictate on the subject, and in fact “Vichy mounted a competitive or rival antisemitism rather than a tandem one”: Vichy wanted to keep Jews out and the Germans to dump them in the occupied zone). See also generally Serge Klarsfeld, Vichy-Awchwitz (Paris: Fayard, 1983). Weisberg, 12 Cardozo L. Rev. at 1375–77 (cited in note 37).Google Scholar

64 See infm notes 91–94 and accompanying text.Google Scholar

65 Judgment of 28 Nov. 1992, cass. crim. (hereinafter Touuier IV). All citations to the Touvier 1V decision are to the entire unpublished version as filed with the Clerk of Court, on file with the author.Google Scholar

66 In addition to the series of cases addressing some of the legal issues involved, there were several skirmishes involving peripheral issues, such as where the case would be tried.Google Scholar

67 See supra note 54.Google Scholar

68 Henri Angevin, La Prutique de la Cour d'Asises 3–8 (Paris: Litec, 1989). The original idea was that citizens had a right to be judged by their peers, although the jury has not always been a very representative body.Google Scholar

69 Id. at 329–44. This was not always the case. In earlier times, the jury decided the defendant's guilt or innocence, but the professional judges imposed the sentence. The judgment is issued “in the name of the French people.”Google Scholar

70 Id. at 333–32; C. Pr. Pén. art. 339.Google Scholar

71 See Bernard Schnapper, “Le jury français aux XIX et XX ème siècles,” in A. P. Schioppa, ed., The Trial Jury in Et;gland, France, Gbmany 1700–1900 (Berlin: Duncker & Humblot, 1987).Google Scholar

72 See infra notes 133–36 and accompanying text.Google Scholar

73 They each took the oath set out in C. Pr. Pén. art. 304, as follows:Google Scholar

Do you swear and promise to examine with the most scrupulous attention the charges that have been brought against X, not to betray the interests of either the accused or those of the society that accuses him; not to communicate with any person until after your verdict; to give way to neither hatred nor spite, neither fear nor affection; to make your decision according to the charges and the grounds of defense, according to your conscience and thorough conviction (intime conviction), with the impartiality and the firmness proper for an upright and free man, to keep the deliberations secret, even after the conclusion of your functions.Google Scholar

74 Pierre Bois, “Touvier, Paul Sans Profession,”Le Figaro, 18 March 1994, p. 8–B; “Huit hommes et une femme,”Le Monde, 19 March 1994, at 11.Google Scholar

75 Thorough and a hard worker, Judge Boulard is described as a man who believes in “popular justice” and does not try to influence the jurors but instead invites them to ask questions and take notes. He is also noted for his capacity to resist political pressure. Laurent Greilsamer, “Le début des plaidoiries au procès de Paul Touvier: Henri Boulard, la presidence d'assises comme un sacerdoce,”Le Monde, 12 April 1994, at 11.Google Scholar

76 Witnesses (les témoins) are called under oath to testify “without hate or fear, and to tell the truth and nothing but the truth.” C. Pr. Pén. art. 331. The defendant and the civil parties (C. Pr. Pén. art. 331(6)) are not, technically speaking, witnesses at all, however, and do not testify under the witnesses' oath.Google Scholar

77 Philippe Broussard, “Plus de vingt avocats, cent sept journalists,”Le Monde, 16 March 1994, at 12; Dominique Le Guilledoux, “Le ‘small fish’ n'intéresse qu'à moitié les journalistes étranger,”Le Monde, 20–21 March 1994, at 10.Google Scholar

78 See, e.g., Laurent Greilsamer, “Paul Touvier, un fantôme dans la lumière,”Le Monde, 19 March 1994, at 11 (“Ses mains repose toujours sur son polo rouge fermé au col par un lacet de fils tressés”). Touvier's red polo shirt was the object of constant comment by the press.Google Scholar

79 See, e.g., Greilsamer, Le Monde, 12 April 1994 (article on Judge Boulard; cited in note 75). The trial was also covered in popular magazines such as Paris Match, 31 March 1994, No. 2340.Google Scholar

80 As reported in Le Figaro, 19–20 March (describing the court sessions of Thursday the 17th and Friday the 18th), Jacques Trémolet de Villers asked for the opening of the glass box:Google Scholar

To speak with him, I only have a telephone. But the trial is supposed to be oral, implying some human contact. I therefore request that all or part of this structure be removed.Google Scholar

The civil parties did not object, and the court consented to the removal of the central portion after Touvier agreed to assume the security risks. Pierre his, “Paul Touvier, un accusé qui se fait oublier,”Le Figaro, 19–20 March, at B–7. Observers of the trial suggested that this “humanized” Touvier by allowing him to breathe the same air as everyone else in the courtroom; Laurent Greilsamer, “Paul Touvier derrière la paroi de la procédure,”Le Mod, 20–21 March 1994, at 10.Google Scholar

81 See infra notes 117–19 and accompanying text.Google Scholar

82 In criminal proceedings, the advocate general is the official who presents the views of the public prosecutor (ministère public) to the Court of Cassation. See Weston, English Reader's Guide 111–15 (cited in note 46); 2 Roger Merle & André Vitu, Traité de Droit Criminel 232 (4th ed. 1979) (“2 Merle & Vitu, Traite de Droit Criminel”). Google Scholar

83 Indeed, he created quite a furor by claiming on the opening day of the trial that although the criminal actions may not have prescribed under the 1964 law, the civil actions prescribed according to the civil law and were therefore extinct. Bois, Le Figaro, 18 March1994, at 8–B (cited in note 74): See infra note 118 on the relationship between the civil and criminal cases.Google Scholar

84 Marie-France Etchegoin, “Au procè Touvier, à Versailles: les ficelles de I'avocat du diable,”Nouvelle Observateur, 24–30 March 1994, at 47.Google Scholar

85 Another example of the “popularization” of Touvier's trial. See, e.g., Roman Rollnick, “Traitor Is Brought to Justice–but France Is also in the Dock,”European, 18–24 March 1994, at 3. The press was of course referring to the film Schindler's List, which portrayed the efforts by German industrialist Oscar Schindler to save Polish Jews from Hitler's final solution.Google Scholar

86 Olivier Biffaud, “Le procés de Paul Touvier devant la cour d'assises des Yvelines: Selon la presse d'extrème droite 'Une violence est faite à la France de la part d'un clan étranger,”Le Monde, 19 April 1994 (available in LEXIS, NEXIS Library, Monde File).Google Scholar

87 Laurent Greilsamer, “L'avocat général a requis la reclusion a vie pour Paul Touvier: ‘Le plan est nazi, la complicité française,’“Le Monde, 20 April 1994, at 13.Google Scholar

88 Laurent Greilsamer, “Paul Touvier fait la grè de la mémoire,”Le Monde, 24 March 1994, at 12 (denies knowing Klaus Barbie in spite of clear evidence to the contrary); Pierre Bois, “Paul Touvier devant les assises des Yvelines: Un chapelet de souvenirs,”Le Figaro, 25 March 1994, at 1; Laurent Greilsamer, “Paul Touvier sous les masques du mensonge,”Le Monde, 25 March 1994 (available in LEXIS, NEXIS Library, Monde File) (claims his division never arrested anyone because they were Jewish, contradicting extensive evidence proving the opposite).Google Scholar

89 Next to a newspaper clipping by André Frossard, a respected French writer, for example, was the notation “horrible Jewish shopkeeper”(“sinistre comerçt juif”). Laurent Greilsamer, “Les obsessions antisemites de Paul Touvier,”Le Monde, 1 April 1994 (available in LEXIS, NEXIS Library, Monde File).Google Scholar

90 See generally Witold Zygulski & Jadwiga Stachura, “Katyn Massacre: Going after the Guilty,”Warsaw Voice, 22 Nov. 1992 (available in LEXIS, NEXIS Library).Google Scholar

91 See Pierre Bois, “Ce que dira Touvier, télégraphiste de la terreur,”Le Figaro, 9–10 April 1994. Boudarel was a philosophy lecturer in Saigon who was opposed to French colonialism in Indochina. He initially worked for a Vietminh radio station and later was political commissar and commandant of prison Camp 113 in North Vietnam, where it was apparently his job to convince the French prisoners that their cause was unjust. He has been accused by over 40 former inmates of Camp 113 of starving and working prisoners to death and other inhumane conduct, including brainwashing and torture. In the 1950 a French military court sentenced Boudarel to death in absentia, but Boudarel returned to France after an amnesty on crimes connected with colonial wars was announced in 1966, and made official by the Law of 18 June 1966. See Tim Witcher, “The Sentimental French Begin to Miss Saigon,” Daily Telegraph, 13 April 195'3 (available in LEXIS, NEXIS Library); Sean Ryan, “Hanoi ‘Traitor’ Opens Old French Wounds,”Sunday Times (London), 24 March 1991 (available in LEXIS, NEXIS Library). Civil parties filed an action against Boudarel under the 1964 law, which was ultimately rejected by the Criminal Chamber on 1 April 1993. The High Court's reasoning was that the atrocities complained of could not be considered “crimes against humanity” under the 1964 law unless they were linked to the events of World War II and, more specifically, to an Axis power. Thus, article 30 of the amnesty law of 1966 applied, and effectively extinguished any public action (action publique) against Boudarel. Judgment of 1 April 1993, Cass. Crim. (available in LEXIS).Google Scholar

92 See supra note 48.Google Scholar

93 See supra note 65.Google Scholar

94 Laurent Greilsamer, “Provoquant un vif incident d'audience Maitre Arno Klarsfeld affirme que Touvier à agi de son propre chef,”Le Monde, 4 April 1994 (available in LEXIS, NEXlS Library, Monde File). Thus he attacked Commissioner Delarue (who had originally asserted that the Gestapo was not involved in the massacre but later on the stand said they were involved), asking him point blank whether he had changed his story under pressure of blackmail for his wartime activities. Mr. Delarue, outraged, responded that he was going to sue Klarsfeld for defamation of character. Another of the civil party lawyers, Ugo lannucci, loudly disagreed with Klarsfeld, to general applause. Id. Subsequently, Klarsfeld nuanced his position: while convinced that the Gestapo had nothing to do with Rillieux, he stated that did not imply that Touvier's crime had prescribed, because, in his opinion, the entire Milice was an accomplice to the Gestapo. Laurent Greilsamer, “Au procè de Paul Touvier devant la cour d'assises des Yvelines: La dissidence de Maitre Arno Klarsfeld,”Le Monde, 16 April 1994, at 12. See generally Arno Klarsfeld, Touvier, Un Crime Français (Paris: Fayard, 1994) (“Klarsfeld, Touvier”). Google Scholar

95 Klarsfeld, Touoier 102.Google Scholar

96 An exception was Henry Rousso, who covered the trial for Libération. See Henry Rowo, “Devoir de mémoire et de vérité,” Libération, 15 April 1994, reprinted in Klarsfeld, Touvier 135–38.Google Scholar

97 See supra note 82.Google Scholar

98 He asked the jury to render a verdict that would bring peace, honor, and justice to troubled times. Laurent Greilsamer, “La fin du procès Touvier: L'ardent plaidoyer de Maître Trémolet de Villers,”Le Monde, 21 April 1994, at 13.Google Scholar

99 id. Google Scholar

100 Conan & Lindenberg, “Que Faire,” at 7 (cited in note 35). Mitterand has often suggested that his actions were necessary to preserve the peace–this was apparently Pompidou's view, as well. See supra note 48. During the hearing before the Court of Appeals of Paris, at least one of the magistrates clearly manifested his objection to Touvier's indictment. Marie-Françoise Masson, “Crime banalid,”La Croix L'Euhement, 15 April 1992, at 3.Google Scholar

101 Jacques Trémolet de Villers, Touoier est Innocent (Paris: Morin, 1994) (“Trémolet de Villers, Touvier est Innocent”). Cf. Laurent Greilsamer, “Risques et Tentations,” Le Monde, 18 March 1994, at 10 (a man must be judged for his crimes, not his ideology).Google Scholar

102 This, of course, begs the question whether Touvier's behavior was really criminal. This essay is premised on the proposition that, as the Court of Cassation found in the earlier Touvier decisions and in the Barbie case, the 1964 law is not an illegal ex post facto law. Touvier could still argue that he was implementing state policy at the time of the massacre at Rillieux. However, since Nuremberg, the defense of superior orders is unavailable for crimes against humanity. Moreover, as a factual matter, it is not at all clear that Touvier was carrying out orders at Rillieux. The problem of retroactive prosecutions is a significant one, but is an issue that 1 do not take up here.Google Scholar

103 See Wexler, 32 Colum. 1. Transnat'l L. (cited in note 2).Google Scholar

104 See, e.g., Jeremy Bentham, The Rationale of Punishment (London: R. Heward, 1830); Joshua Dressler, Understanding Criminal Law 3–12 (New York: Matthew Bender, 1987) (“Dressler, Understanding Criminal Law'); H. L. A. Hart, Punishment and Responsibility (New York: Oxford University Press, 1968).Google Scholar

105 Utilitarian theory suggests that punishment is morally right if it produces some net benefit to society. The benefit may result from the general deterrent effect that a criminal's punishment may have on society: The punishment of one may serve as notice to others, and thereby motivate them through fear to modify their behavior. The lawful behavior thus induced may, of course, produce a normative gain, for after enough lawful behavior occurs, persons may become accustomed to acting lawfully, rather than functioning solely out of fear. The deterrent effect may be specific, instead. The particular offender may be deterred from future misconduct through his punishment. Society may also benefit from the rehabilitation of the offender, whereby the wrongdoer may return to society and engage in a productive life. Dressler, Understanding Criminal Law 5.Google Scholar

106 Retributivists argue that actions are ends in themselves and may be morally right or wrong regardless of their ultimate consequences to others. Thus, the punishment of wrongdoers becomes morally right because their conduct offended the rules of society. A strong current running through retributive theory is vengeance: The wrongdoer must be punished because he hurt society. To critics who argue that this places undue emphasizes on hatred of the criminal and does not justify inflicting pain on him without any concern for whether it will result in future gains, the retributivists respond that punishment benefits the perpetrator by allowing him to repay his debt to society and to return free of moral guilt and stigma. Finally, retribution may have positive consequences such as satisfying the public's need to see justice done. It may, thus, discourage vigilantes, and, at the same time, foster public respect for the law and the legal system. Id. at 6–8.Google Scholar

107 See Jaime Malamud-Goti, “Transitional Governments in the Breach: Why Punish State Criminals?” 12 Hum. Rts. Q. 1, 13 (1990); Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” 100 Yale L.J. 2537, 2542 (1991). Some point to the current slaughter in Bosnia-Herzogovina and Rwanda as evidence that war crimes prosecutions do not work to deter future offenses. Mafamud-Goti hypothesizes that this may be due in part to the peculiar nature of state-sponsored criminal activity. He argues that perpetrators (such as Touvier) who are part of an ideological military struggle may not believe they are acting for their own personal benefit. Rather, they believe that they are acting for the benefit of society. They may thus simply see themselves and any of their comrades who are punished as martyrs for a good cause. It may also be that within a military body the “certainty of approval and support from comrades and superior officers neutralizes the deterrent effect of a possible criminal sanction. Approval or disapproval from the military environment is much stronger than rejection from society at large.” Malamud-Goti, 12 Hum. Rts. Q. at 9. (He does not think they should go unpunished however. See infra note 116.) As there has never been a consistent international commitment to prosecute crimes against humanity, however, whether there is any deterrent effect resulting from such prosecutions is simply unknown. One can argue that given this uncertainty and the horrendous misconduct at issue, as long as there is a reasonable chance that prosecutions would promote general deterrence, they should be undertaken.Google Scholar

108 This problem manifested itself in several countries. Thus, the Reporter who presented the bill to the French Senate stated that although an international solution was to be preferred, nothing prevented the French legislature from acting in the interim. Israel, Poland, East Germany, Czechoslovakia, Belgium, the Soviet Union, Hungary, Bulgaria, Austria, West Germany, and Yugoslavia all adopted similar legislation, although some countries did not go as far as France in this regard. Georges Levasseur, “Les crimes contre l'humanité et le problème de leur prescription,' 1966 J. Droit Int'l 259, 266 n.25. See also Jacques-Bernard Herzog, “Etude des lois concemant la prescription des crimes contre l'humanité,' 1965 Rev. Sci. Crim. 337, 340–56.Google Scholar

109 Martin Clausnitzer, “The Statute of Limitations for Murder in the Federal Republic of Germany,” 29 Int'l & Comp. L.Q. 473–79 (1980); Robert Miller, “The Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.” 65 Am. J. Int'l L. 476–501 (1971); Robert A. Monson, “The West German Statute of Limitations on Murder: A Political, Legal and Historical Exposition,” 30 Am. 1. Comp. L. 605, 605–8 (1982).Google Scholar

110 The Germans had a 10–year and a 15–year Prescriptive period for the punishment of crimes other than murder and a 20–year period for murder. Monson, 30 Am. J. Comp. L. at 609–10. Originally, the date from which the limitations period was to run was 8 May 1945, the date on which Germany unconditionally surrendered. Id. at 607. The expiration date was later extended by the Bundestag to 31 Dec. 1969 by resetting the beginning of the period at 31 Dec. 1949. It was later changed to a 30–year period. Finally, in 1979, prescription was abolished as applied to murder. See Clausnitzer, 29 Int'l & Comp. L.Q. at 473–76.Google Scholar

Similar prescriptive periods existed in many other countries where war criminals were thought to be hiding. As a result, an international convention was drawn up declaring, among other things, that no “statutory limitation” shall apply to crimes against humanity. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, U.N.T.S. 75 (1970). Toward the end of March 1966, six nations, including France, asked the United Nations Human Rights Commission to prepare a draft convention stating that those accused of committing crimes against humanity could not benefit from any statute of limitations. Levasseur, 1966 J. Droir Int'l at 266. The convention also applied to war crimes. An extensive commentary on the convention as well as the draft can be found in “Le Projet de Convention lnternationale sur l'lmprescriptibilité des Crimes de Guerre et des Crimes Contre I'Humanité,' Rev. Int'l Droit Penal, Nos. 3–4, at 383–663 (1966). The convention came into force on 11 Nov. 1970.Google Scholar

111 The law was adopted unanimously by the French legislature. The intention was that any remaining Nazis would be punished, no matter when or where they were found. Journal Officiel, Débats Parlementaires, Sénat, Session of 17 Dec. 1964, 2428–31; Journal Officiel, Débats Parlementaires, Assemblée Nationale (“J.O.A.N.”), Session of 16 Dec. 1964, 6142–47. The report to the National Assembly even raised the possibility that Hitler was not dead but just in hiding, as some apparently believed at the time. The Reporter stated: “suppose that on May 9, 1965, Hitler emerges and shows himself in public once again, saying 'my crimes have prescribed” and that, like William II, he finishes his days peacefully in a foreign country where he is granted asylum. That would obviously be unthinkable.” J.O.A.N. at 6144.Google Scholar

112 See Wexler, 32 Colum. J. Transnat'l L. at 362–64 (cited in note 2).Google Scholar

113 As Professors Lekschas and Renneberg put it:Google Scholar

The term [of prescription] is set when, through the passage of time–juridically the length of the interval is made to depend upon the gravity of the crime–the injuries inflicted upon the community by the crime are healed and the act itself has ceased to imperil the life of the community and the rule of law, by force of a bad example left unpunished: the conditions too must be ripe for the removal of a particular crime from the consciousness of men, so they are no longer preoccupied with it.Google Scholar

John Lekschas & Joachim Renneberg, “On the Necessity and Obligation to Prosecute and Punish Certain Grave Crimes,” 14 Int'l & Comg. L.Q. 627, 629–30 (1965).Google Scholar

114 1964J.O.A.N. at 6143.Google Scholar

115 Jankelevitch, praising the vote of the French Parliament, wrote: Let us be clear at the outset: the legal criteria usually applicable to ordinary crimes (de droit commun) in matters of prescription have no relevance here. In the first place, we are dealing with an international crime [and] the passage of time that dulls all things, that works to wear down sorrow as it works to erode the mountains, that leads us to forgive and forget, that consoles, that dissolves and heals, has not in any way attenuated this colossal slaughter: on the contrary, it incessantly revives the horror of it all.Google Scholar

Vladimir Jankelevitch, “L'imprescriptible,” 18 Rev. Admin. 37–38 (1965). Indeed, the very essence of a crime against humanity, particularly one carried out as part of official state policy, is the extensive harm inflicted not just on the specific victims of the crime but on the entire group to which the victim belongs. Through systematic attacks on a particular segment of society, both that group and their supporters became hostage to the terrorism of the (then)dominant majority. Thus, the perpetrator wishes to injure the group to which the victim belongs by attacking the victim as an individual: “de faire une victime collective à travers la victime indiuidulle.” Barbie, Cass. Crim. 20 k. 1985, J. Droit Int'l, Note Edleman, 148,quoting Graven, “Les crimes contre I'humanité,” 1950 Cours La Haye t. 76, p. 547.Google Scholar

116 Orentlichet, 100 Yale L.J. at 2542–42, and Malamud-Goti, 12 Hum. Rts. Q. at 13, argue persuasively that human rights violators in a prior regime must be punished to support the democratic values of the successor regime and that the trial of the members of a military or paramilitary organization who committed their misdeeds while in power may facilitate a return to democracy and help to restore of the dignity of the victim.Google Scholar

117 See supra notes 96–97 and accompanying text.Google Scholar

118 In the civil action, the private citizen must choose between bringing his action separately in civil court or “piggybacking” it on a criminal prosecution. The private citizen must have an interest in the case (i.e., be a victim or otherwise injured by the criminal act) and may (but need not) ask for damages. See 2 Merle & Vitu, Traité de Droit Criminel 40, 78–97 (cited in note 82).Google Scholar

119 This is permitted by C. Pr. Pén. art. 2–4. Law No. 83–466 of 10 June 1983, J.O. 11 June 1983, which provides: “Any association which on the date of the acts in question has been duly registered for at least five years and which according to its charter was created to combat crimes against humanity or war crimes or to defend the moral interests and honor of the Resistance or of deportees may exercise the rights conferred on the civil party with respect to war crimes and crimes against humanity.”Google Scholar

120 May a criminal “earn” his freedom by living an upright life for a long period following his criminal activity? This issue has often been raised with respect to former Nazis who fled after the war and, under new identities, established “normal” (i.e., noncriminal) lives in other countries. This thesis has been rejected on the basis that where the crimes committed are heinous, nothing should prevent their ultimate prosecution. See Alan Rosenbaum, Prosecuting Nazi War Criminals 119–34 (Boulder, Col.: Westview Press, 1993).Google Scholar

121 Lottman, Purge 159 (cited in note 32). As might be expected, the most severe sentences were imposed just after the liberation. With the passage of time, sentences became lighter and lighter. For example, one Chief of the Milice, who, like Touvier, had been sentenced to death in absentia in 1945, turned himself in nine years later. Although he received a five-year sentence, this was immediately annulled by the application of the amnesty law. Id. But see Rousso, Vichy Syndrome 119–21 (cited in note 25).Google Scholar

122 The lower courts responsible for his indictment did express concern about the reliability of the evidence 50 years after the fact. Although Judge Getti found the evidence supported 5 of the 11 claims, the Paris Court of Appeals reversed, finding that only the evidence on the massacre at Rillieux would support an indictment. Although the appellate court's decision was criticized by many who found the court overly eager to relieve Touvier from liability by poking holes in the evidence presented (Roger Pinto, “L'affaire Touvier: Analyse Critique de I'arrąt du 13 avril 1992,” 1992 J. Droit Int'l 607), nonetheless the extensive scrutiny of the file in two separate investigations and the strength of the evidence concerning the massacre at Rillieux invalidate any claim of unfairness. It is also worth noting that despite the extensive publicity surrounding Touvier's trial, it probably occurred under more impartial circumstances than did the trials held during the immediate postwar purge.Google Scholar

123 E.g., the film of Jean Marboeuf entitled Pétain. Google Scholar

124 “Touvier: Le Temps des accusations,”Le Figaro, 26 May 1989.Google Scholar

125 Hariman, Popular Trials 24 (cited in note 6).Google Scholar

126 See J. Thayer, “Judicial Notice and the Law of Evidence,” 3 Harv. L. Rev. 285, 305 (1890). Lawyers and judges (like anyone else) often seek to use history instrumentally to make their point. Richard Matasar, “Personal Immunities under Section 1983: The Limits of the Court's Historical Analysis,” 40 Ark. L. Rev. 741 (1987).Google Scholar

127 See supra notes 55–61 and accompanying text.Google Scholar

128 Statement of Alti Rodal in “The Role of Historical Inquiry in Creating Accountability for Human Rights Abuses,” 12 Boston College Third World L.J. 269, 279–80 (1992).Google Scholar

129 Allegations of Touvier's criminality as regards members of the Resistance were sustained by Judge Getti, but all these claims were dismissed by the Paris Court of Appeals. Some have argued that the appellation “crimes against humanity” is misplaced with respect to victims who were members of the Resistance rather than members of religious groups persecuted by the Nazis and the Milice. See André Frossard, Le Crime Conme I'Humunité 94, 96 (Paris: Lafont, 1987) (“Le sort du Juif différait de celui de tous les aumes. L'opposant pouvait cesser de I'opposer. Le Juifne pouvait cesser d'tne juif Le crime contre l'humanité, c'est tuer quelqu'un sous prétext qu'd est né': The lot of the Jew is different than that of any of the others. The opponent can stop opposing. The Jew cannot stop being Jewish The crime against humanity, it is to kill someone just because he was born). Yet, to the extent that one of the purposes of punishing state-sponsored criminality is to encourage those opposed to it to continue their struggle, and to the extent that the Nazis and the Milice attacked both members of the Resistance and Jews, it seems inappropriate to distinguish between them in this way. Indeed, the Criminal Chamber specifically rejected such an approach in the Barbie case. See Wexler, 32 Colum. J. Ttansnat't L. at 339–34 (cited in note 2).Google Scholar

130 Indeed, truth is often a very slippery concept in trials, where the outcome may be affected by legal artifices, evidentiary rules (less so in France), or the quality of the lawyers.Google Scholar

131 Arnold, “The Criminal Trial,” at 140 (cited in note 12).Google Scholar

132 Because of the extensive pretrial review vetting of the file by two separate courts (Judge Getti and the Indicting Chamber of the Paris Court of Appeals), this is a less likely prospect than would be true in an American or other common law court. Yet, what Klarsfeld pleaded for was that the court, or at least the jury, effectively disregard the decisions of the Paris Court of Appeals in 1992 and the Court of Cassation in 1993, and hold in effect (through its conviction of Touvier as having acted on his own initiative) that the Vichy state was responsible for initiating attacks on jews.Google Scholar

133 “Trial by jury … ever has been, and 1 trust ever will be, looked upon as the glory of English law…. The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.” William Blackstone, Commentaries iii. 379, iv. 350 (17th ed. 1830).Google Scholar

134 “We commonly strive to assemble 12 persons colossally ignorant of all practical matters, fill their heads with law which they cannot comprehend, obfuscate their seldom intellects with testimony which they are incompetent to analyse or unable to remember, permit partisan lawyers to bewilder them with their meaningless sophistry, then lock them up until the most obstinate of their number coerce the others into submission or drive them into open revolt.” Remarks of Hon. Benton S. Oppenheimer, 11 U. Cin. L. Rev. 142 (1937).Google Scholar

135 Laurent Greilsamer, “La fin du proces Touvier: L'ardent plaidoyer de Maître Trémolet de Villers,” Le Monde, 21 April 1994, at 13.Google Scholar

136 See supra notes 94–95 and accompanying text.Google Scholar

137 Cf. Dressier, Understanding Criminal ZAW 9 (cited in note 104).Google Scholar

138 Dominique Le Guilledoux, “Le ‘small fish’ n'intéresse qu'à moitié les joumalistes étangers,” Le Mod, 20–21 March 1994, at 10.Google Scholar

139 Charges of crimes against humanity have also been filed against Jean Leguay, René Bouquet, and Maurice Papon. Leguay, who was a delegate of the General Secretary of the National Police in the occupied zone, died sometime ago. His case was under investigation at the time. See Cass. Crim., 21 Oct. 1982, Bull. No. 231 (Sept.-Oct. 1982). Bouquet was Chief of Police under the Vichy Government and was about to be indicted when he was assassinated on 8 June 1993. Papon, who is now 84, was general secretary of the Gironde precinct (préfecture) between 1942 and 1944 and was accused in 1981 by the French satirical newspaper Le Canard Enchainé of organizing convoys that sent hundreds of Jews from Bordeaux to Nazi death camps from 1942 to 1943. Although he has been under investigation since 1983, no trial date has been set. Bertrand Le Gendre, “Le débat sur les poursuites judiciaires engagees pour faits de collaboration de Vichy à la Ve République: Maurice Papon, le cameléon,” Le Monde, 23 April 1994 (available in LEXIS, NEXIS Library, Monde File). Papon argues that he has been unjustly attacked, even likening himself to Dreyfus. See Gérard Boulanger, Maurice Papon: Un Technocrate Franpis dons la Collahation 11 (Paris Seuil, 1994). Moreover, while Papon's implication in the roundup of hundreds of Jews at Bordeaux is clear, he apparently later intervened to save others. Thus, his case is not clear cut, and, unlike Touvier, he has not sought to avoid being prosecuted but has asked for his trial to be held to allow himself to clear his name. Claude Jouanne, “Il poursuit en diffamation l'auteur d'un livre: La contre-attacque de Maurice Papon,”Le Figaro, 14 June 1994, at 13.Google Scholar

140 Laurent Greilsamer, “Paul Touvier, un collaborateur dans l'Histoire: La mémoire retrouvée,”Le Mod, 17 March 1994, Special Supp., at 1.Google Scholar

141 “Aprés son pourvoi en cassation: Paul Touvier à la Santé,”Le Figuro, 22 April 1994, at 1.Google Scholar

142 Laurent Greilsamer, “Le procés de Paul Touvier devant la cour d'assises des Yve-lines: ‘mon pére, lui, on ne l'a pas jug’,”Le Made, 10 April 1994, at 13. Through the testimony of the witnesses, the trial also served a clear educational purpose. Many of the young people and other members of the public who attended the trial found it very useful to learn about the occupation from live witnesses rather than from books.Google Scholar

143 See Trémolet de Villers, Touvier est Innocent 14 (cited in note 101).Google Scholar

144 Demjanjuk's attorney, Yoram Sheftel, argued this very point in a letter to Le Mod, complaining that the heavy publicity in Demjanjuk's case shifted the burden of proof from the state to Demjanjuk, forcing him to prove his innocence. Yoram Sheftel, “Non & un procés-spectacle,”Le Monde, 23 March 1994, at 2. Civil trials are, of course, less problematic and are often used in the United States (but not France) as vehicles to debate and resolve difficult social issues such as the legality of abortion or racial equality.Google Scholar