History always has its pride of place. Even before the present moment, when French Jews feel themselves especially threatened, there have been enduringly serious problems of Jewish group survival in France. Even before the incendiary issue of Islamic radicalism arose in France, a genuine scourge that now imperils virtually all non-Muslims (and also some Muslims) throughout Europe, the country's Jews had been exposed to almost every conceivable kind of imposed suffering. During the Holocaust, of course, this suffering had included genocide, a since-codified crime against humanity, and one carried out by Germany's more or less willing French surrogates. Sarah's Key, an appropriately celebrated 2010 film, reminded its viewers of largely systemic French collaboration with Nazi aggressions against the Jews. For a time, it had been widely and charitably believed, France actually carried on quite heroically under the German occupation. In fact, as we now know, the 1942 roundups in occupied France were not executed by the SS or Gestapo directly, but rather, with varying degrees of enthusiasm, by the ordinary French police. Less well-known, even now, is that France, after the War, very rarely prosecuted Nazi war criminals for crimes committed during the occupation, and that these prosecutions routinely dishonored the Jewish victims. Nowhere was this designated defilement more apparent than in the French trial of Klaus Barbie, the notorious 'Butcher of Lyons.' The Barbie trial, we should now be reminded, took place between May 11 and July 4 1987. Although found guilty and sentenced to life in prison (there was no death penalty in France), Barbie had succeeded, with an undisguised prosecutorial complicity, in blurring the Nuremberg-based charge of 'Crimes against Humanity.' Today this distortion continues to mar the indelible memory of justice. Believing that Crimes of War have a binding statute of limitations, and that Crimes against Humanity contain no such statute, the French authorities had decided to indict Barbie only on the latter charge. This was a big mistake, however, and this elementary factual error led them to treat all of the defendant's cruelties - deportation-related crimes, and crimes against the Resistance - as qualitatively indistinguishable. According to the authoritative 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity: '...there is no period of limitation for War Crimes, and Crimes against Humanity.' Jurisprudentially, there is an irreducible specificity to crimes against humanity; hence, France's deliberate fusion of these crimes with Crimes of War had the effect of diminishing the unique fate of French Jews during the Holocaust. After the War, France had received survivors and victims of the Resistance as heroes, but then generally tried to ignore those who had been known simply as the 'racially deported.” These were the ones in 'zebra' clothes, the Jews. This stark dichotomy had substantial consequences. On November 11, 1945, it went so far as to exclude Jewish victims from the mortal remains symbolically reunited around the flame of the Unknown Soldier. It was not until 1954, that a national day was declared to memorialize “The Deportation.” An implicit hierarchy of pertinent criminality had arisen in post-War France, one that elevated the victims of war crimes, i.e., the Resistance, to a substantially higher status than that accorded to victims of Crimes against Humanity. In this vaguely obscene competition of memories, the Barbie trial conveniently reinvigorated the hierarchy. Because the French prosecutor believed, erroneously, that Crimes of War were bounded by a statute of limitations, while Crimes against Humanity were not so constrained, the magistrate in charge retained only the crimes inflicted upon the Jews. As for Nazi actions against the fighters of the Resistance, against France's “authentic heroes,' these were declared off limits to criminal prosecution. Never mind that in 1943, in German occupied Poland, a tiny handful of beleaguered Jews had held off the extinction of the Warsaw Ghetto, and for a notably longer period of time than it had taken France to surrender its entire armed forces. The grand jury in Lyons confirmed the magistrate's opinion. But when certain Resistance organizations objected strenuously, the criminal court of appeals, on December 20, 1985, accepted an interpretation of Crimes against Humanity that was less restrictive. This interpretation, it was agreed, would include crimes committed against the Resistance. Thereafter, the French definition of Crimes against Humanity was to include 'inhuman acts and persecutions that, in the name of a state practicing a politics of ideological hegemony, have been committed in a systematic way not only against people by reason of their belonging to a racial or religious group, but also against the opponents of this political system, whatever the form of their opposition.' This greatly expanded definition of Crimes against Humanity was troubling. The French authorities could have avoided blurring the lines between Crimes of War and Crimes against Humanity, by recognizing that both penal categories had been unaffected by those statutory limitations pertinent under international law. Failing such recognition, however, they came to sully the memory of the deported French Jews, and also trivialized the indisputably core meanings of 'humanity.' There was something ironic and paradoxical in the spectacle of Resistance organizations demanding the broadened view of Crimes against Humanity. After all, having previously accepted the hierarchic superiority of war crimes, they were now asserting their right to a status that had formerly been rejected as unheroic. 'We the victims have never asked to be considered as heroes,' Simone Veil intoned on behalf of the deported, 'so why do the heroes now want to be treated as victims?' The answer was plain. On account of the incorrect presumption that only Crimes against Humanity have no statute of limitations, the hierarchic ranking of War Crimes and Crimes against Humanity had been surreptitiously inverted by the French criminal justice system. But there were to be distinctly palpable consequences. A result of this inversion, in addition to demeaning the Holocaust, and enlarging Holocaust denials, was Barbie's own reversal of the role between defender and accused. If one had listened to Jacques Verges, Barbie's defense lawyer, not only was the Holocaust a trifling matter of minor significance, but French colonial crimes were even more serious than those of the Nazis. This argument was intended to highlight France's alleged lack of moral authority to even try Klaus Barbie. Known in law as Tu Quoque, this corollary defense strategy (one that had been dismissed at both the Nuremberg and Tokyo trials) focused attention on all post-War crimes that had remained unpunished, especially the broadly generic crimes of “imperialism” and “racism,” in which France had allegedly been so deeply involved. In essence, the three lawyers for Barbie - the Congolese M'Bemba, the Algerian Bouaita, and the French-Vietnamese Verges - spoke as delegates of a despised nonwhite humanity, transferring the racism of the crime itself onto the memory of the crime. The six million Jews condemned by the Final Solution, therefore, had no rights to any universal commiseration. After all, the Final Solution was simply a family affair, with white prisoners, and white executioners. Here, counsel instructed, one could not properly expect sympathies of any kind from the “genuinely oppressed” peoples of the Third World. France's 1987 trial of Klaus Barbie allowed the manipulation of convenient Third World rhetoric to defend a notorious Nazi criminal. Rather than allow France, in a very small way, to finally 'make up' for its generally loathsome wartime behavior, it ended up as just one more glaring expression of that country's documented unconcern for Jewish memory and Jewish justice. Looking ahead, we can only hope that France will somehow finally understand that the country's Jews were always a plainly evident blessing, and that protecting this still imperiled population from targeted harms must promptly become a conspicuous and verifiably high priority. There is one last point. Over the past several dozen years, French officials and journalists have routinely characterized the Palestinian slaughterers of unprotected Israeli civilians as 'militants,' but - especially after the Charlie Hebdo murders - unhesitatingly identified the Jihadist slayers of French civilians as 'terrorists.' Going forward, this twisted dichotomy of description represents an inexcusable double-standard, one that should now be halted altogether. Under pertinent international law, whether civilian victims happen to be located in Paris or Jerusalem or anywhere else, the responsible Islamist murderers are all terrorists. Period! ---------------------- Louis René Beres (Ph.D., Princeton, 1971) was born in Zürich, Switzerland, at the end of World War II, the only son of Austrian Holocaust refugees. He is the author of ten books, and several hundred scholarly articles, dealing with critical issues of international relations and international law. Dr. Beres has been Professor of Political Science and International Law at Purdue for forty-four years.
