La France et le Procès de Nuremberg (1945-1946)

La France et le Procès de Nuremberg (1945-1946)

Exposé sur la contribution de la France au Procès de Nuremberg: le gouvernement, les juges, les procureurs, l'opinion publique, donné par Yves Beigbeder au Centre Robert H. Jackson à Jamestown, NY, Etats-Unis, le 11 juin 2007. Robert H. Jackson était le procureur américain à Nuremberg, qui a joué un rôle déterminant pour la tenue du Procès.

Yves Beigbeder a été secrétaire juridique du juge français, Henri Donnedieu de Vabres (son oncle), à Nuremberg de mars à août 1946.


FRANCE AND NUREMBERG

Lecture delivered at The Robert H. Jackson Center in Jamestown on 11 June 2007 by Yves Beigbeder, Doctor in Law (France)

Introduction

First, I want to express my warm thanks to Gregory L. Peterson for his invitation to come to the Robert H. Jackson Center to give this lecture. I am greatly honoured to be here today and thank all those who have welcomed me to Jamestown.

My topic is “France and Nuremberg” and I should explain why I was there for a few
months (from March to August 1946). I had just completed my French Law degree, and had no professional nor legal experience. I was asked by my uncle, Henri Donnedieu de Vabres, the French judge at Nuremberg to help him by summarizing daily verbatim records on seven defendants. I was easily convinced to come: this was my first job.

FRANCE AND NUREMBERG

France has played a role in the creation and working of several international criminal tribunals, starting with the creation of the Nuremberg International Military Tribunal, the first international criminal court which lasted from November 1945 to October 1946. French influence was applied, to a limited success, to the negotiations leading to the London Agreement of 8 August 1945, which approved the Nuremberg Charter.

Two French judges sat in the Tribunal and several French prosecutors carried out their part in the prosecution of the accused senior Nazi defendants. France was also present, to a lesser extent, in the Tokyo International Military Tribunal through the presence of one judge and one prosecutor. The Tokyo Tribunal lasted from May 1946 to November 1948.

In 1945, France was a devastated and ruined country, the French people had to recover from four years of German occupation and they were still in a difficult transition between the Vichy regime and the newly recovered democracy brought by General De Gaulle and the Allied troops. The French prisoners of war and political deportees were returning from German camps, and the few Jewish survivors of Nazi extermination camps were quietly returning to a France which had betrayed them. Knowledge of the Nazi atrocities in those camps was slowly and sparsely coming to light.

There were mixed feelings of relief over the Liberation of France by the Allies, and feelings of revenge over both the German occupiers and the French collaborators. Illegal and legal purges followed.

The Nuremberg trial was to give a civilized, judicial response as a substitute for the potential uncontrolled outbursts of hate and rage against the perpetrators and their accomplices. The detention and trial of the major Nazi leaders (except for Hitler and Goebbels, who had committed suicide, and Bormann, who had probably escaped) were an object of satisfaction and hope for retribution for many French people. However, the French and international media interest in the trials faded slowly, as the trial went on for weeks, and then for months of tedious legal proceedings, with only a few dramatic sessions.

The French authorities duly participated in the preparation of the trial and in its proceedings, but France’s resources were limited in all areas: it hardly had adequate resources to research and present reliable documentation for the trial, its judges and prosecutors had to adjust to different judicial procedures heavily influenced by Anglo-American legal procedures.

Among the four countries which established the Nuremberg Tribunal, France was more a victim than a victor. The real victors were the powerful USA, the resilient Britain and the USSR, which had suffered millions of deaths. The USA and Britain had comparable legal and judiciary systems based on common law, different from the continental systems of France and the USSR. The three Western countries had similar democratic and legal values, while the Soviet political and ideological differences, already apparent during the 1945 San Francisco Conference on International Organization, became manifest during the preparation and running of the
Nuremberg trial.

France was not only a victim, it was in an ambiguous position. Vichy’s France had collaborated with Nazi Germany. Its acceptance by the Allies among the victors and its participation in the Nuremberg trial were due to De Gaulle’ obstinate and lonely efforts in London and to Churchill’s support.

The St James’s Palace Declaration – 13 January 1942


The St James’s Palace Declaration, issued by the representatives of nine governments-in-exile on 13 January 1942, explicitly repudiated retribution ‘by acts of vengeance on the part of the general public’ and declared that the ‘sense of justice of the civilized world’ required that the signatory powers

‘place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.’

When he signed the Declaration in the name of France, General Charles de Gaulle, as leader of the Free French in London, added: ‘We declare our firm intention to watch that those guilty and all those responsible for whatever reason, cannot evade, as did those of the other war [World War I], the deserved punishment’.

France became actively involved after its Liberation from German occupation and Roosevelt’s reluctant recognition of De Gaulle’s legitimacy. On 6 December 1944, a French ordinance created a ‘department of research of enemy war crimes’.

The London Conference – June-August 1945

The representative of the French provisional government of the French Republic was Robert Falco, a Counsellor at the Court of Cassation – France’s highest court -, assisted by professor André Gros, French delegate to the United Nations War Crimes Commission, who played an active role in discussing the substance and form of the future Charter. Falco had first been designated as the French prosecutor but became the alternate French judge.

Initially, Gros challenged the justification for judging individuals for acts of state. In traditional international law, the only subjects are states, not individuals. He said : ‘It may be a crime to launch a war of aggression on the part of a state that does so, but that does not imply the commission of criminal acts by individual people who have launched a war …’. The British delegate countered : ‘Don’t you imply that the people who have actually been personally responsible for launching the war have committed a crime ?’ But the French delegate held his ground : ‘We think that would be morally and politically desirable but that is not international law’.

But international law was changing.

For Jackson, judging organizations and individuals for their responsibility in crimes against peace, war crimes and crimes ag humanity was the purpose amd justification for the Nuremberg trials.

Other problems arose quickly. On procedure, there was a basic difference between the American and British judicial criminal procedures and the continental ones, shared by the Russians and the French. Under the ‘adversarial’ Anglo-American judicial system, the defendant goes to trial on a comparatively summary indictment to which no evidence needs to be attached. The evidence is presented in open court by the lawyers who examine and cross-examine the witnesses. Under the continental ‘inquisitorial’ system, most of the evidence is obtained by an examining magistrate and a detailed indictment is given to the defendant and to the court. During the proceedings, questions are asked by the judge, rather than by lawyers. Judge Falco did not insist upon the adoption of the French system. For him, it would be simpler to leave the prosecution in full charge of the prosecutors and leave the court sitting and judging apart from the prosecution. As a conciliator between the Anglo-Americans and the Soviets, he suggested that they should extract the best elements from their different laws. The French delegation had no preference. However, both French and Soviet participants insisted that the initial indictment should be accompanied by evidentiary material.

As a major substantial issue, the French and the Russians were opposed to the notion of a common plan or conspiracy to commit the crimes, an American and British legal concept unfamiliar to continental legal practice. For Jackson, the trial would link the conviction of groups and organizations to the actions of the major Nazi criminals so as to facilitate the subsequent prosecution of accused individuals. The French viewed this concept as ‘a barbarous legal mechanism unworthy of modern law’.

Again, the French and the Russians opposed Jackson’s proposal that initiating an aggressive war was a crime under international law. Professor Gros argued :

"We do not consider as a criminal act the launching of a war of aggression. If we declare war a criminal act of individuals, we are going farther than the actual law. We think that in the next years any state which will launch a war of aggression will bear criminal responsibility morally and politically ; but on the basis of international law as it stands today, we do not believe these conclusions are right … We do not want criticism in later years of punishing something that was not actually criminal, such as launching a war of aggression. "

For Gros, if the Nazi leaders were criminals, it was not because they had started a war of aggression, but because in launching this war, they had committed atrocities and other violations of the law of war. To this legal argument, he added : ‘The Americans want to win the trial on the grounds that the Nazi war was illegal, and the French people and other people of occupied countries just want to show that the Nazis were bandits’.

Negotiations ended with the signature on 8 August 1945 of the London Agreement by the four powers, to which was annexed the Nuremberg Charter. Nineteen other governments later adhered to the Agreement, thus reinforcing its international credentials.

Following the Agreement, on 18 August, an ordinance signed by De Gaulle and other members of the provisional government authorized the French prosecutors on the Tribunal to investigate the charges and carry out the prosecution of the accused. Another ordinance of 2 November authorized the French judges to exercise jurisdiction within the competence of the Tribunal and render judgments, in the name of France, on the accused.

The Nuremberg Charter

According to Article 6 of the Charter, “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility”. These were:
- Crimes against Peace
- War Crimes
- Crimes against Humanity

Then, “Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plans”.

Punishments on conviction included the death penalty “or such other punishment as shall be determined by it to be just”, in effect, life or time sentences in jail.

Jackson had won : the objections of the French and the Russians had been set aside. The crimes included wars of aggression, and the concept of conspiracy was part of the crimes.

The French judges

The French judge was Henri Donnedieu de Vabres, a renowned specialist in international criminal law, a professor at the Paris Sorbonne law school. He was the only judge in Nuremberg without judicial experience, although this was somewhat compensated by the long experience of his alternate, Robert Falco, a judge at the Court of Cassation. Both French members kept a low profile during the public proceedings.

De Vabres knew German but no English – Falco was proficient in English.
The French judges were each assisted by a young assistant, typists and stenographers – not by a secretariat of professional and experienced criminal lawyers.

De Vabres, an eminent professor, was an austere, Protestant family man, with a strong accented voice from the Cevennes region, the region where the huguenots were persecuted by the dragons of Louis the 14th. His wife was a reserved and modest woman, a good pianist.

Why choose an eminent international criminal law professor without judicial experience to be an international judge ? The other three judges all had judicial experience.

Could it be that, in 1945, a French judge experienced in criminal law would necessarily be a Vichy judge who had sworn allegiance to Marshall Pétain, and would then be unwelcome to the US and British authorities and judges ? Donnedieu de Vabres, as a university law professor was not subject to such a requirement. His major legal treaty was published in 1928 and re-printed in 2004 : Les principes modernes du Droit pénal international. De Vabres continued teaching criminal law at the Sorbonne during the German occupation of France. The printed record of his 1942 course updates his earlier Treaty on Criminal Law and Comparative Criminal Legislation, describing the various Vichy legislative and procedural ‘innovations’, including the Statute of the Jews, ‘introduced, in imitation of Germany, under the influence of a racist viewpoint’.

Condemning the new legislation, he wrote that the new French criminal law had ‘become, alas, a weapon of war’ and ‘science and barbary were no longer the scandalous paradox of a few years past’. He also noted that the Chief of State had assumed legislative, executive and regulatory powers, without respect for the principle of separation of powers, - that in 1940-1941, the new laws showed a strong repressive spirit, new crimes had been included in the criminal code, that some of them had a retroactive effect, that they were not bound by the principle of the required legality of crimes and punishment (that these should have been included in the laws), the ‘exception’ courts were political courts, such as the special courts, set up in reaction to ‘circumstances’, and were temporary – not part of the regular judiciary structure. Their powers were extremely broad, their judgments were expeditious, without judiciary recourse

Robert Falco, as a Jewish Judge, was excluded from the Court of Cassation in accordance with the Vichy’s laws on the ‘Statute of the Jews’ of 3 October 1940 and 2 June 1941. He took refuge in the South of France and was re-instated in the Court after the Liberation.

The French prosecutors

France was first represented by François de Menthon, a university law professor, an active resistant during the German Occupation who joined de Gaulle in Algeria in August 1943. After the Liberation, he was appointed Minister of Justice in September 1944. De Menthon was in Nuremberg from 29 August 1945 until 20 January 1946, when he returned to political life in France. He was then replaced by Auguste Champetier de Ribes, a lawyer. On 10 July 1940, he was one of the 40 parliamentarians who voted against the constitutional law granting full powers to Marshall Pétain. Also an active resistant during the Occupation, he was arrested and interned for 18 months beginning in December 1942. The French prosecutors were aided by two assistants and several substitutes.

The assistants were Paul Coste-Floret, replaced by Edgar Faure on 1 December 1945, and Charles Dubost, who attended the trial during its full duration

The Proceedings

The French presented war crimes and crimes against humanity in Western Europe, speaking for France, Norway, Denmark, the Netherlands, Belgium and Luxembourg.

The French presentations were given from 17 January to 7 February 1946.
On 17 January 1946, three days before his leaving Nuremberg for Paris, de Menthon gave his well-received opening address. De Menthon kept to the Gaullist myth of the French people’s resistance to the Germans, and portrayed a unified and martyred France, without any reference to the collaborationist Vichy regime.

De Menthon exposed that ‘all this organized and vast criminality’ was a ‘crime against the spirit’, the ‘monstrous doctrine’ of racialism, ‘[which] aims to plunge humanity back into barbarism’, the ‘original sin of National Socialism from which all crimes spring’. This totalitarian doctrine ‘necessarily brought Germany to a war of aggression and to the systematic use of criminality in the waging of war’. The defendants’ responsibility was ‘that of perpetrators, co-perpetrators, or accomplices in the War Crimes systematically committed between 1 September 1939 and 8 May 1945 by Germany at war’.

Reading de Menthon’s speech forty years later, Telford Taylor (a member of Jackson’s team) noted a ‘jarring omission of reference to Jews and the Hocolaust’. The only explicit reference was :’It is also known that racial discriminations were provoked against citizens of the occupied countries who were catalogued as Jews, measures particularly hateful, damaging to their personal rights and to their human dignity’. Taylor, however, did not mark this fact when hearing the address.

On 24 January 1946, Charles Dubost, a French Deputy Prosecutor, argued that the defendants ‘systematically pursued a policy of extermination’ not primarily motivated by war aims, but rather ‘as a policy of domination, of expansion, beyond war itself’. The greater part of his presentation related to the German concentration camps, while shorter portions dealt with hostages, assassinations, and prisoners of war. Evidence on concentration camps was given by witnesses, including the dramatic testimony of Marie-Claude Vaillant-Couturier, who had been arrested by the Germans in Paris early in 1942 as a Communist member of the Resistance. In March 1943, she was sent to Auschwitz and then to Ravensbrück. She told of the torture and murder of Resistance members, the convoys to Auschwitz, the gassing of the Jews, the sicknesses and the medical experiments.

Another French Deputy Prosecutor, Edgar Faure, followed Dubost. He showed, on the basis of German documentation, that if Nazism had a philosophy of criminal action, it also had at its disposal a criminal bureaucracy. In contrast with de Menthon, Faure was explicit about anti-semitism, carried out by legislation and police action. He produced the document of 6 April 1944 concerning the deportation of Jewish children from Izieu in France to Drancy, an internment camp near Paris from where trains went to Auchwitz and other extermination or deportation camps. This later served as basic element in the condemnation of Klaus Barbie for crimes against humanity. Faure also referred to the complicity of Vichy in listing the French anti-Jewish laws.

During the examination and cross-examination of Ribbentrop (26 March- 3 April 1946), Faure successfully challenged Hitler’s foreign minister, who had claimed not to be anti-semitic. He produced the record of a meeting of Hitler and Ribbentrop with Admiral Horthy on 17 April 1943, which had been presented to Goering previously during the trial. When Horthy had asked what he should do with the Hungarian Jews, Ribbentrop had declared ‘the Jews should be exterminated or taken to concentration camps’.

Taylor acknowledged that the French on the bench [the judges] had no reason to be ashamed of their countrymen at the lectern [the prosecutors]: ‘The French evidence was, despite the administrative difficulties, well-organized and forceful, and the presentation was both dignified and skillful’. In his final assessment, Taylor somewhat qualifies this praise: ‘The four groups of prosecutors teamed surprisingly well, but their motivations and outlooks differed sharply, and only between the British and some of the Americans was there warmth and camaraderie. The French, still pulling together after the shock of the German occupation and the resistance, were the most reticent and least effective’. He singled out Dubost, Faure and Gerthoffer as the most effective French prosecutors.

In fact, language problems prevented any close camaraderie, or even social contacts, between the US and British prosecutors and judges, and the French prosecutors and judges.
The French and Soviet prosecutors demanded the death penalty against all the defendants. The American and British prosecutors requested a verdict of guilt without assigning specific punishment.

The judges' deliberations

After remaining silent during the public proceedings, Donnedieu de Vabres and Falco took an active part in the deliberations in camera. On 27 June, de Vabres produced a memorandum moving that Count One, the Conspiracy to Commit Aggressive War, be stricken. He argued that the crime of conspiracy did not exist in international law and that the evidence had shown that there had been no common plan. No practical purpose would be served by a finding of ‘conspiracy’, since all the defendants had been involved individually in waging aggressive war, in crimes against humanity, or in war crimes. He contended that a conspiracy required a certain degree of equality among the participants, but no such equality existed in Nazi Germany: Hitler was totally dominant in the planning stage. Those who listened to and then worked to carry out his orders could be convicted as criminal accessories, but they were too lowly to be considered as participants in a common plan or conspiracy.

Opposition to de Vabres’ proposal was violent at times, but his arguments were considered. In a compromise agreement between the judges, conspirary would only be applied to crimes against peace: conspiracy “must be clearly outlined in the criminal purpose. It must not be too far removed from the time of decision and action “. The crime of participating in a criminal organization was limited in its interpretation:

The Tribunal recognized the criminal character of some organizations, and addressed recommendations to national courts.

During the review of individual cases, De Vabres showed himself as the most compassionate of the judges, proposing a milder sentence than the others. On the other hand, he joined with the Russian judges in not wishing, as a matter of principle, to acquit anyone, but did not agree with the Russians’ intent to have all the defendants sentenced to death

There was a disagreement about the method of carrying out death sentences. The military defendants wanted the capital sentences be carried out by shooting rather than by hanging, the latter deemed dishonourable for a soldier. De Vabres wanted to distinguish between ‘honourable’ and ‘dishonourable’ penalties. For instance, he felt that Jodl and Goering should be shot, not hanged. The other three judges rejected his views on this matter.

Public reactions after the judgments

Public opinion on the European continent, where countries had been occupied by the Germans and people had suffered directly from that occupation, was for a harsh treatment of Germany. When the French were asked in October 1944 about what to do with Hitler, 40 per cent favoured the option ‘shoot, kill, hang him’ while 30 per cent wanted ‘torture before killing him’. Trying the surviving Nazi leaders was at best a second option for most, but it helped by replacing the straight revenge by a decent judicial process. The dignity ensured by Lawrence over the long trial, the due process given to the defendants, the accumulated documentary and testimonial evidence produced by the prosecution, all contributed to give popular acceptance to the judiciary process.

The French press focused on individual portraits of some of the defendants, complained about the length and slowness of the trial, and was, at times, critical of the ‘victors’ trial.
The acquittals of three accused (Schacht, von Papen and Fritzsche) were violently denounced as scandalous by the Paris press. Le Monde even qualified the trial as a ‘tragi-comedy’ and darkly hinted that ‘one day we will know by what secret influences these three were not judged guilty’

De Gaulle’s views on Nuremberg

General De Gaulle did not comment publicly on the trial and the verdict in speeches or in his Memoirs.

In private conversations with his military aide de camp, he did not comment on the legal aspects of the trial, but he said it had been an error to hang nazi military war criminals like ordinary criminals. They should have been shot by a military squadron. He also said that he disagreed with the death condemnation of Keitel, with whom the Allies had signed the Armistice. In strong words to his assistant, he said that this was a “foul deal” committed by the democracies, contrary to the ethics of civilized nations.

De Vabres’ later views

During my stay in Nuremberg, my uncle never spoke about his own views and positions on the trial. He kept to a strict position then and after the trial, in contrast with other judges, that he would not reveal any of the confidential debates between the judges, nor reveal his own position regarding the verdicts.

In an interview in Paris by a French periodical on 12 October 1946 (Réforme), he was asked how to conciliate the principle of non-retroactivity with the verdict of Nuremberg. He replied that there was no conciliation, but the trial showed a deep transformation of international law. Law changes and legal rules must yield when faced with common sense and equity. He also referred to the Kellow-Briand pact of 1928 as a basis for condemning wars of aggression.

In an article published in 1947, Donnedieu de Vabres gave a legal assessment of the Nuremberg Trial in relation with the modern principles of international criminal law.

In his introduction, he acknowledged that the innovation provided by the London Agreement – the individual accountability of political and other leaders for their crimes, rather than the ‘State’ responsibility – responded to an exigency of universal conscience. However, he added that criticisms should not be discarded, such as the Tribunal was not an international jurisdiction, but an interallied jurisdiction, a victors’ jurisdiction. The fragility of human justice, in particular political justice, which included Nuremberg, was an obvious truth. He qualified the International Military Tribunal as ‘an ad hoc jurisdiction, an institution created later than the crimes that it was to punish. Charges were vague, the punishments almost entirely left to the discretionary appreciation of the judges’. De Vabres recalled the words of the Nuremberg judgment that ‘the Charter was not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, … it is the expression of international law existing at the time of its creation ; and to that extent is itself a contribution to international law’. In his conclusion, he wrote that the affirmation of the Nuremberg principles was illusory, unless a permanent institution was created, which would be entitled to apply them.

For de Vabres, what gave a legal basis to the Nuremberg judgment was less its conformity with the Charter than its conformity with the ‘movement of ideas’, the evolution of treaties. In summary, the London Agreement of 8 August 1945, the Charter, the Rules of procedure and the judgment itself were only ‘moments’ in the evolution of customary law.

De Vabres recalled the affirmation of the French philosopher Pascal that ‘Justice without force is powerless, force without justice is tyrannical. One must therefore join force and justice’, De Vabres wrote that this was done in Nuremberg : even though this was human justice, an incomplete justice, a relative justice was better than no justice. What were the alternatives : kill discreetly the alleged criminals, following the Gestapo methods ; a political punishment, such as applied to Napoleon when he was exiled to Elba Island, then to St. Helena ; a widely-publicized moral punishment. De Vabres discarded all these alternatives as they all presumed the accused guilty : a judiciary examination is required before a punishment is decided. [i]

In summary, for de Vabres, the Nuremberg judgment ratified the supremacy of international law over national law. It also affirmed the primacy of conscience over the exigencies of military discipline.
De Vabres actively participated in United Nations commissions for the creation of an international criminal court, until he died in 1952.

For us, Nuremberg proved to be a major judicial innovation, a legal revolution: the “invention” of individual criminal responsibility in international law.
Its successors are the ad hoc international criminal tribunals and the permanent International Criminal Court.

After Nuremberg

France has been involved directly or indirectly in the events leading to the genocide in Rwanda
and in the wars which followed the partition of the Former Yugoslavia, including the Srebrenica massacre. Both events led the creation of the first ad hoc international criminal tribunals set up after the Nuremberg and Tokyo Tribunals. French influence is however less direct concerning the International Criminal Tribunals for the former Yugoslavia and for Rwanda than for the Nuremberg and Tokyo tribunals, except that France, as a permanent member of the UN Security Council which created these tribunals, participates in their organs and their functioning.

In the case of the Tribunal for Rwanda, France has been embarrassed by its political and military support to the Hutu government before and during the genocide of the Tutsi. The degree of its involvement has been investigated by a French Parliamentary Commission, and, in part, by international commissions. Two Rwandans have recently introduced a complaint against France for complicity of genocide to a military tribunal in Paris.

In the case of the Tribunal for Yugoslavia, France has not participated fully in the arrest of accused individuals indicted by the Tribunal, in view of its long alliance and friendship with the Serbs. France’s leading military role as part of the UN Protection Force and the responsibility of the United Nations and France as unable to prevent the Srebrenica massacre have been investigated by international and national commissions.

France has been present and both active and reluctant in the negotiations leading to the Rome Agreement which created the International Criminal Court.

Its reluctance was due to objections and fears by the French military to be subject to international justice which they considered illegitimate. A misunderstanding, as the ICC would only be competent if national justice were deemed incapable or unwilling.

France is an active participant in the Court’s operations since it started its work in 2000. France is the third contributor to the ICC budget. Several French judges or jurists are on its staff: Claude Jorda, presiding judge of Trial Chamber I – formerly a judge with the International Criminal Tribunal for the Former Yugoslavia -, Bruno Cathala, Registrar. Simone Weil, deported at the age of seventeen to Auschwitz, a former Minister of Justice and of Health, is a member of the Board of Directors of the ICC Victims Trust Fund. France is a member of the “Friends of the Court’s group”. In March 2005, France sponsored a draft resolution of the Security Council referring the Darfur situation to the ICC.

Nuremberg has been the pioneer in the creation of an international criminal justice system, as a key element in the long human struggle aimed at strengthening the rule of law, eroding the impunity of criminal leaders and giving some relief to the victims.

I am proud that my country has shared in this effort and trust that its governments, with the cooperation of friendly, democratic states and the stimulus of human rights NGOs will continue to work in this direction.


Yves Beigbeder
Jamestown, 11 June 2007
yves.beigbeder@free.fr


Note: A bibliography on French and other sources may be found in my book:
Judging War Crimes and Torture – French Justice and International Criminal Tribunals and Commissions (1940-2005) – Martinus Nijhoff Publishers, Leiden/Boston, 2006.

Un nouveau Secrétaire

général de l’ONU

Le 13 octobre 2006, l’Assemblée générale des Nations Unies a nommé M. Ban Ki-moon, diplomate respecté de Corée du Sud, au poste de Secrétaire général de l’Organisation, sur recommandation du Conseil de Sécurité. M. Ban succédera à Kofi Annan le 1^er janvier 2007, pour un mandat de cinq ans.

Selon la Charte des Nations Unies, le secrétariat est un des « organes principaux » de l’ONU, au même rang que l’Assemblée générale et le Conseil de sécurité. Le SG est le plus haut fonctionnaire de l’Organisation. Il peut attirer l’attention du Conseil de Sécurité sur toute affaire qui, à son avis, pourrait mettre en danger le maintien de la paix et la sécurité internationale.

Le processus de sélection

Le Conseil de sécurité doit d’abord s’entendre sur le candidat à recommander à l’Assemblée générale, ce qui suppose un accord, au moins, des cinq membres permanents du Conseil (Chine, Etats-Unis, France, Royaume Uni, Russie). La tradition veut qu’il soit choisi sur la base d’une rotation géographique par région : Ban l’Asiatique succède aux Africains Kofi Annan (1996-2006) et Boutros Boutros-Ghali (1992-1996). Les deux premiers SG étaient scandinaves : le Norvégien Trigve Lie (1946-1953) et le Suédois Dag Hammarskjold (1953-1961). Ont suivi le Birman U Thant (1961-1971), l’Autrichien Kurt Waldheim (1972—1981) et le Péruvien Javier Perez de Cuellar (1982-1991). Autre règle non écrite, seuls sont élus des candidats de « petits pays », les membres permanents du Conseil de sécurité ne présentant pas de candidats. Il n’y a pas de « comité de sélection » ni de présentation ou d’évaluation publiques des qualifications des candidats.

La Charte ne précise pas les qualifications requises par les candidats : les candidats généralement font état de leur expérience diplomatique internationale. La France demande en plus la connaissance du français en plus de l’anglais.

L’expérience des prédécesseurs

Comme l’ont démontré les titulaires de ce poste, que Trygve Lie estimait être « le job le plus impossible au monde », le SG doit être à la fois un manager et un diplomate efficace. La plupart ont offert leurs bons offices aux pays en conflit. Dag Hammarskjold a « inventé » les forces de maintien de la paix pour dénouer la crise de Suez : ces forces se montent actuellement à plus de 92.000 personnels militaires et civils. L’ONU et Kofi Annan jouent un rôle important dans les crises du Moyen-Orient, le Darfour, les problèmes de prolifération nucléaire (Iran, Corée du Nord).

L’ONU et son SG, Kofi Annan, ont reçu conjointement le Prix Nobel de la Paix en 2001. Comme l’a indiqué le Comité Nobel dans sa déclaration, l’ONU dans son histoire a obtenu de nombreux succès, et a subi de nombreux revers. L’accusation de partialité de Dag Hammarskjold, considéré par beaucoup comme le meilleur SG, lui ont valu d’être déclaré persona non grata par l’URSS, alors que son indépendance et ses déclarations lui ont valu l’hostilité des Etats-Unis pendant la guerre du Vietnam, et celle des puissances coloniales pour ses positions en faveur du Tiers Monde.

La déclaration de Kofi Annan à la BBC en septembre 2004 selon laquelle la guerre d’Irak était un acte illégal en contravention de la Charte des Nations Unies a été accueilli avec colère par l’administration Bush. Annan a souffert des accusations contre l’ONU pour l’inaction de l’Organisation pendant le génocide au Rwanda et le massacre de Srebrenica. Les accusations de mauvaise gestion du personnel et le scandale du Programme Pétrole contre nourriture l’ont également atteint.

Annan a fait des déclarations courageuses pour affirmer l’universalité des droits de l’homme, il a obtenu des engagements des leaders du monde entier sur les questions de développement, de santé, de lutte contre le sida, d’environnement et d’éducation. Il a ouvert l’Organisation sur le monde des entreprises. Par contre, il s’est heurté à la résistance des pays du groupe des 77 et de son propre personnel à la réforme du secrétariat.

Tous les SG sont placé dans la « situation impossible » de devoir représenter tous les 192 Etats membres, petits et grands, avec leurs différences politiques, économiques, militaires et culturelles, tout en évitant de heurter de front les grandes puissances.

Il est probable que M. Ban aura besoin de toutes ses qualités reconnues de diplomate pour exercer une influence sur les conflits des prochaines années. A l’occasion de sa première conférence de presse, M. Ban, qui sera le huitième titulaire du poste, a identifié trois domaines prioritaires : ramener la confiance entre toutes les parties prenantes, poursuivre la réforme de l’ONU et rétablir la cohérence et la coordination de l’organisation.

Yves Beigbeder

A new Secretary-General

for the United Nations

On 13 October 2006, the UN General Assembly appointed Mr Ban Ki-moon, a respected South Korean diplomat, to the post of Secretary-General of the Organization upon the recommendation of the Security Council. Mr Ban will replace Kofi Annan on 1 January 2007, for a five-year term.

According to the UN Charter, the secretariat is one of the « principal organs » of the UN, at the same level as the Security Council and the General Assembly. The SG is the chief administrative officer of the Organization. He may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

The selection process

The Security Council must first agree on the candidate to recommend to the General Assembly, which implies a consensus of at least the five permanent members of the Council (China, France, Russia, United States, United Kingdom). By tradition, the candidate is chosen on the basis of geographical rotation by region : the Asian Ban is the successor to the Africans Kofi Annan (1996-2006) and Boutros Boutros Ghali (1992-1996). The first two SGs were Scandinavian : the Norwegian Trygve Lie (1946-1953) and the Swedish Dag Hammarskjold (1953-1961). They were followed by the Burmese U Thant (1961-1971), the Austrian Kurt Waldheim (1972-1981) and the Peruvian Javier Perez de Cuellar (1982-1991). As another unwritten rule, only candidates from « small countries » are elected, the permanent members of the Security Council do not offer candidates. There is no « selection committee », no public presentation or evaluation of the candidates’ qualifications.

The Charter does not specify the qualifications required of candidates : candidates usually are diplomats with international experience. In addition, France requires that they know French, in addition to English.

The experience of former SGs

As demonstrated by the incumbents of the post, which Trygve Lie described as « the most impossible job on Earth », the SG must be both an effective manager and diplomat. Most of them have offered their good offices to countries in conflict. Dag Hammarskold has « invented » the peacekeeping forces to bring to an end the Suez crisis : these forces now include more than 92 000 military and civilian personnel. The UN and Kofi Annan play an important role in the crises of the Middle East, Darfour, problems of nuclear proliferation (Iran, North Korea).

The UN and its SG, Kofi Annan, jointly received the Nobel Peace Price for 2001. As stated by the Nobel Committee in its announcement, the UN has in its history achieved many successes, and suffered many setbacks. The alleged lack of neutrality of Dag Hammarskjold, considered by many as the best SG, caused him to be declared persona non grata by the USSR, while his independence and declarations aroused the hostility of the USA during the Vietnam War, and that of the colonial powers for his positions for the Third World.

Kofi Annan’s declaration to the BBC in September 2004 that the Iraq war was an illegal act that contravened the UN Charter was met with anger by the Bush administration. Annan has also suffered from the accusations against the UN for the inaction of the Organization during the Rwanda genocide and the Srebrenica massacre. The charges of poor staff management and the scandal of the Oil for food programme have also affected him.

Annan made courageous declarations affirming the universality of human rights, he obtained commitments from leaders of the whole world on questions of development, health, fight against AIDS, environment and education. He opened the Organization to the business world. On the other hand, his reform proposals for the secretariat were resisted by the Group of the 77 and by his own staff.

All SGs are placed in the « impossible position » of having to represent all 192 Member states, small and large, with their different political, economic, military and cultural differences, while trying not to alienate the big powers.

It is likely that Mr Ban will need all of his recognized qualifications as a diplomat in order to exert an influence on next years’ conflicts.At his first press conference, Mr Ban, the eighth incumbent of the post, has identified three priorities : to rebuild trust among all stakeholders, to stay the course with ongoing reform of the Secretariat management, and to enhance coherence and coordination.

Yves Beigbeder

Le Rwanda et la France

Lettre de lecteur envoyée au journal Le Monde
Votre article: France-Rwanda: l'ombre du génocide continue à peser*
(22 novembre 2006)

Vous citez le travail "remarquable" de la mission parlementaire française d'information présidée par Paul Quilès. La commission avait une mission d'information, et non d'enquête: contrairement aux missions parlementaires américaines, elle n'avait aucun pouvoir de comparution de témoins ni de témoignages sous serment avec sanctions judiciaires. La commission était sous l'influence des autorités gouvernementales et a travaillé en partie à huis-clos. Son rapport a blanchi la France.
Par contre, le rapport de l'Organisation pour l'unité africaine (OAU, remplacée depuis par l'Union africaine) de juillet 2000 a conclu que la France a été l'allié le plus proche du gouvernement rwandais qui a été coupable d'abus massifs des droits de l'homme et n'a pas cherché à influencer ce gouvernement pour qu'il cesse son action. Pour la commission de l'OAU, la position du gouvernement français selon laquelle il n'avait aucune responsabilité pour le génocide du Rwanda était "entièrement inacceptable". Un de ses membres, le Canadien Stephen Lewis, a déclaré qu'il n'y avait presque aucune excuse pour la conduite de la France au Rwanda. La France aurait dû présenter ses excuses, ce qu'elle a toujours refusé de faire, contrairement à l'ONU, la Belgique, l'Afrique du Sud et l'Eglise anglicane.
(Malgré les preuves irréfutables du soutien politique et militaire de la France au gouvernement Hutu génocidaire avant et pendant le génocide, des hommes politiques influents (Roland Dumas, Alain Juppé) ont exprimé leur "fierté légitime" pour l'action de la France au Rwanda).
Seul Michel Rocard a estimé que la France avait commis "une faute géopolitique", et avait choisi "le mauvais côté".

Yves Beigbeder

J'ajoute à cette lettre publiée, par Le Monde des 3-4 décembre 2006, avec une coupure marquée par des parenthèses sur le texte ci-dessus.
Le 22 novembre 2006, Le Monde annonçait que le juge français Bruguière, le magistrat de la lutte anti-terroriste, sortant de son rôle, avait signé une ordonnance pour communiquer les conclusions de son enquête sur l'assassinat, le 6 avril 1994, du président rwandais Juvénal Habyarimana, évènement déclencheur du génocide. Bruguière mettait en cause le président Paul Kagame et neuf personnalités rwandaise dans l'attentat contre l'avion. Bruguière jugeait que Kagame avait prévu et instrumentalisé les massacres déclenchés ensuite par le pouvoir Hutu: " les représailles sanglantes envers la communauté tutsie lui offriraient le motif légitime pour reprendre les hostilités et s'emparer du pouvoir avec le soutien de la communauté internationale". Kagame bénéficiant de l'immunité accordée aux chefs d'Etat, Bruguière a même demandé au Secrétaire général de l'ONU, Kofi Annan, de saisir le Tribunal pénal international pour le Rwanda pour engager une poursuite contre Kagame: Annan n'a aucune compétence en la matière, et le TPI est indépendant.
A première vue, ces annonces donnaient l'impression que le gouvernement français cherchait à nouveau à se dédouaner de toute responsabilité à l'égard du génocide au Rwanda, par une manoeuvre particuliérement maladroite évoquant Gribouille.
En somme, il fallait oublier le génocide d'environ 800 000 tutsis commis par le gouvernement Hutu et ses milices, et blâmer les Tutsis d'avoir eux-même provoqué les massacres !
Il fallait également oublier le rôle de la France qui a entraîné et armé l'armée du gouvernement Hutu, qui a aidé cette armée à repousser une première offensive des troupes Tutsi en 1990, a permis à l'Opération Turquoise de laisser fuir les dirigeants et troupes génocidaires Hutu vers le Congo. Par une étrange aberration soutenue par les autres dirigeants français, le Président voulait joindre un Rwanda francophone (ex-colonie belge) à notre "empire" post-colonial au nom de la Francophonie: l'ennemi était Kagame l'anglophone.
Le 28 novembre 2006, Le Monde découvrait "les erreurs et les étranges témoins du juge Brugière ...

La victoire de Ségolène

Elle a gagné ! Elle a défait deux éléphants, malgré les chausse-trappes et les coups bas. Popularité médiatique, des coups de canif contre l'idéologie du Parti, des propos inattendus, une femme, enfin, qui prétend à la magistrature suprême, une femme à convictions, dure et sûre d'elle-même. Enfin une petite éclaircie dans le climat morose de la politique intérieure française.
Pour moi, DSK était le candidat le plus compétent, et, enfin, essayait de transformer le vieux Parti sclérosé en parti social-démocrate, c'est-à-dire un parti de réforme progressive, comme la plupart des partis socialistes européens, et même les anciens partis communistes en dehors de la France. Ségolène le suivra peut-être sur cette voie, quand elle aura sa pleine liberté d'expression. DSK, premier ministre de Ségolène, pourquoi pas ?
La défaite de Fabius est la bienvenue, les socialistes eux-mêmes n'ont pas accepté sa conversion tardive et démagogique de dirigeant bourgeois libéral en gauchiste révolutionnaire. Sa dissidence du Parti socialiste pour casser l'Europe m'a particulièrement choqué. La France et l'Europe mettront des mois et peut-être des années à se remettre du "non" français, dont il est en partie responsable. Après la nouvelle de la victoire de Ségolène hier soir, Paul Quilès, un de ses partisans, a essayé de remettre en marche la "machine à perdre": accepter sa victoire peut-être, mais la surveiller de près pour qu'elle garde la route bien à gauche. Fabius et Quilès ne savent donc pas que les élections se gagnent au centre, et qu'il n'y a pas de majorité de gauche en France, sauf exception. Aux Etats-Unis, les democrates ont gagné en se rapprochant du centre, et en limitant les positions excessives.
Je ne suis pas totalement convaincu par Ségolène et j'attends des propositions plus claires. Re-nationaliser industries et banques serait catastrophique, élargir les 35 heures, qui ont déjà affaibli l'économie française, également. Je n'ai pas aimé son soutien à José Bové, qui massacre illégalement des moissons en ignorant royalement les connaissances scientifiques et l'expérience de nombreuses populations qui bénéficient des plantations OGM.
J'espère qu'elle pourra trouver de nouvelles idées pour relancer l'Europe, en accord avec d'autre Etats membres.
Certaines idées de Sarkosy me plaisent, en particulier la discrimination positive (ou action positive) en faveur des minorités dites visibles, donc d'origine africaine, maghrébine ou asiatiques, pour les aider à trouver du travail et un logement: une action temporaire et énergique, et également visible, est cruciale pour éteindre les incendies des banlieues, et que tous prennent leur place dans la nation. Par contre, je n'aime pas son patriotisme économique ni ses attaques contre les juges: respect pour la séparation des pouvoirs (inexistante en France).
J'aime bien Bayrou, un modéré centriste, et un Béarnais (comme ma famille), aux propos intelligents, mais dont les chances dans la bataille sont malheureusement modestes.
Voilà, pour l'instant !
Yves Beigbeder 17 nov. 06

Judging War Crimes and Torture

Even democracies commit war crimes. France, like other democracies, has not always kept up to the high standards expected from the „homeland of human rights”. Its colonial past shows that what it termed its “civilizing mission” was tainted with military, economic and religious abuses, denounced by a few courageous groups and individuals, and revealed in a few public trials. The Vichy government’s willing participation in Jewish persecution during the German occupation of France was ignored or denied until trials (Barbie, Touvier, Papon) brought to light these unpleasant facts in the 1990s. France’s participation in the Nuremberg and Tokyo Tribunals was relatively minor but useful. However, its participation in later international tribunals (Ex-Yugoslavia, Rwanda) revealed a few conflicts between French politics and the work of these tribunals. France’s participation in the International Criminal Court is also reviewed. These developments show that even democratic countries, like France but not France alone, can commit war crimes, crimes against humanity and even be accomplices in genocides. Reasons include pressures in exceptional periods of internal and/or external political/military tensions, nationalist policies, lack of judiciary independence, and lack of media exposure to abuses. However, past crimes must be recalled and exposed, particularly if they have been hidden, covered by amnesties, and not judicially punished. They must be visible as part of a country’s history in order to ensure that they are not repeated. Even democracies commit war crimes. France, like other democracies, has not always kept up to the high standards expected from the „homeland of human rights”. Its colonial past shows that what it termed its “civilizing mission” was tainted with military, economic and religious abuses, denounced by a few courageous groups and individuals, and revealed in a few public trials. The Vichy government’s willing participation in Jewish persecution during the German occupation of France was ignored or denied until trials (Barbie, Touvier, Papon) brought to light these unpleasant facts in the 1990s. France’s participation in the Nuremberg and Tokyo Tribunals was relatively minor but useful. However, its participation in later international tribunals (Ex-Yugoslavia, Rwanda) revealed a few conflicts between French politics and the work of these tribunals. France’s participation in the International Criminal Court is also reviewed. These developments show that even democratic countries, like France but not France alone, can commit war crimes, crimes against humanity and even be accomplices in genocides. Reasons include pressures in exceptional periods of internal and/or external political/military tensions, nationalist policies, lack of judiciary independence, and lack of media exposure to abuses. However, past crimes must be recalled and exposed, particularly if they have been hidden, covered by amnesties, and not judicially punished. They must be visible as part of a country’s history in order to ensure that they are not repeated.

Yves Beigbeder (Doct. Public Law) has written a number of books and articles on international organizations and international criminal justice. As a young graduate, he worked as Legal Secretary to the French judge at the Nuremberg Trial (March-August 1946). Following his long service with the World Health Organization, he gave courses or lectures in European and North-American universities. He is now a legal counsel for international civil servants in Geneva.

Docteur en Droit public, ancien fonctionnaire de l'OMS, il a par la suite publié de nombreux articles et livres sur les organisations et administrations internationales. Il a enseigné à l'Institut universitaire de hautes études internationales (IUHEI), à Genève, et dans des universités françaises américaines et canadiennes. Il fut également Chargé de recherches à l’Institut des Nations Unies pour la Formation et la Recherche (UNITAR).