Having exposed the general context of the discussion (1), this section will present the legal framework that was set up to try collaborators. Th is included both the use of existing provisions of the Criminal Code (2) and the creation of a new off ence, that of indignité nationale , or national indignity (3).
(1) Th e general context
Discussions on how to deal with the épuration of those Frenchmen who had collaborated at one level or another with the occupiers started some months before the end of war in committees specially created by De Gaulle. Two of those, the Comité Général des Etudes and the Comité National Judiciaire , worked together to produce a memo in February 1944 that outlined the legislation that could be put in place after the liberation. 5 As is often the case in such circumstances, the passions of the fi ve-year confl ict and occupation created pressure on the committees to show the utmost severity in relation to those who had helped the Nazis. 6 However, the
4 Th e term ‘ épuration ’, which can be translated as ‘purge’ or ‘purifi cation’, designates the general policy of ‘cleaning up’ the country that took place in France after the war. It only partly corresponds to the practice of lustration that has been promoted, most notably in the former soviet bloc, to deal extra-judicially with former members of the regime and various human rights off enders. In this sense, it is preferred to use the French term in the remainder of this chapter, because of its wider scope of applica-tion and because of the light it sheds on the ‘moral’ state of mind of those who implemented this policy.
5 Robert Aron , Histoire de L’épuration , Vol. 3(2) ( Paris : Fayard 1969 ), 45–71 . Th ese committees were also in charge of formulating post-war policies for dealing with the various lawyers and judges who tried to minimise the eff ect of Vichy decisions during occupation.
6 Such severity can be illustrated by the following draft proposal circulated at the time: ‘[W] ill be sentenced to death whoever, by his words, writings or example will have helped the objectives of the enemy to bring the French to collaborate in its actions’ (cited in Aron, above n 5, 80).
preamble of the joint working document submitted by the committees indicated that the drafters had decided to adopt a more balanced approach, and try to reconcile the requirements of punishment with respect for the rights of the accused. 7
One of the questions that had to be answered by the committees was the legal basis for the trials. At the heart of this debate was the principle of nullum crimen sine lege , a recognized principle of criminal law, and in the case of France, a principle that had been strongly defended during the French Revolution. Indeed, the Declaration of the Rights of Men and of the Citizens of 1789 famously provides that: ‘A person shall only be punished by virtue of a law established and promulgated before the off ence.’ 8 Th e lesser-known Declaration of the Rights of Men and of the Citizens of 1793 presented things in a more emphatic way:
No one ought to be tried and punished except after having been heard or legally summoned, and except in virtue of a law promulgated prior to the off ence. Th e law which would punish off ences committed before it existed would be a tyranny: the retroactive eff ect given to the law would be a crime. 9
Th is principle was enshrined in the French Criminal Code which was in force at the time. 10
In light of this, the committees elaborated a normative framework that tried to satisfy both the requirements of legality and the demand for punishment. It was accepted that there were essentially two categories of collaborators: those who had directly helped the occupants, to whom the existing Criminal Code was applicable;
and those who had indirectly helped the occupants, for whom a new legal frame-work needed to be designed. 11
(2) Th e application of the existing provisions of the French Criminal Code
For the fi rst category of collaborators, it was deemed that, to a large extent, the existing provisions of the Criminal Code on treason and off ences against the security of the
7 ‘Th e need for sanctions after the victory against the French who, in one way or another, pro-vided help to the activities and the manipulations of the enemy is not in doubt. However, repression, unfortunately necessary, must, whenever possible, reconcile two contradictory objectives. It must be eff ective and swift to satisfy the national conscience and prevent spontaneous reactions that would necessarily be rough and would risk being unfair; it must be fair, i.e proportional to the guilt and organised in such a way as to allow to determine that guilt with accuracy and that respect for the rights of the accused and the defence not be sacrifi ced’ (cited in Aron, above n 5, 82).
8 Article 8, Declaration of the Rights of Man and Citizen (1789), available in English at < http://
www.hrcr.org/docs/frenchdec.html > (accessed 3 March 2013).
9 Article 14, Declaration of the Rights of Man and Citizen from the Constitution of Year I (1793), available in English at < http://www.columbia.edu/~iw6/docs/dec1793.html > (accessed 3 March 2013).
10 Although the formulation has changed in the course of several reforms in the past decades, the principle remains the same and is today framed as ‘[c] onduct is punishable only where it constituted a criminal off ence at the time when it took place’ (Article 112–1, French Criminal Code, available in English at < http://195.83.177.9/code/liste.phtml?lang=uk&c=33 > (accessed 3 March 2013)).
11 Aron, above n 5, 83.
state could be applied to acts committed during the war. More specifi cally, the general framework of Article 75 of the Criminal Code was to be used. Th is Article provided for the prosecution of acts of collaboration with a foreign power famously labelled as
‘intelligence with the enemy’.
Several interpretative ordinances were issued by the provisional government to ensure the eff ectiveness of the application of the Criminal Code to the situation of occupied France. Th ese ordinances illustrate a clear will on the part of their drafters to leave as little room as possible for acquittals. First, it was declared that the provision of information relating to members of the résistance should be considered as aff ecting national security as provided for by Article 83 of the Criminal Code. 12
Second, it was considered that, because of the illegality of the Vichy regime persons acting according to orders of the government, or in application of a leg-islative measure, could not benefi t from the traditional defences that would nor-mally attach to such a situation ‘if the accused personally had the opportunity of not executing the order and where his responsibility or his moral authority was such that by refusing to act he would be serving the nation’. 13 Th ird, acts committed against France’s allies could be assimilated to acts committed against the French state itself, thus allowing the consideration of these acts under the relevant provisions of the criminal code. Th e Ordinance of 26 June 1944 even went as far as to consider that for the purposes of the application of the Criminal Code, the troops of Allied forces were to be considered French troops. 14
(3) Indignité nationale : A new off ence to capture the essence of the épuration
Th e second category of persons—those that could be considered to have indirectly collaborated with the Nazis—gave rise to more diffi culty than the fi rst. On the one hand these were acts that could not, even with a wide interpretation, fall within the scope of the existing French Criminal Code. On the other hand, some of these acts, even if they could be labelled as off ences against national security, would warrant a penalty that would be far too harsh in relation to the minor gravity of the actions. In other words, applying the Criminal Code to all instances of collaboration would be too lenient in some cases and much too severe in others. 15 Despite this, the drafters of the laws of épuration were reluctant to let the ‘small fi sh’ get away because they had also, by their actions, or even inaction, contributed one way or another to the dishonour of the country. In order to refl ect this, there-fore, the drafting committee provided the following solution, that of the creation of a new off ence of indignité nationale , defi ned in the proposal as ‘the situation in which has placed himself a person who, directly or indirectly, had voluntarily
12 Ordinances of 17 and 31 January 1944.
13 Peter Novick , L’épuration Française, 1944–1949 ( Paris : Balland 1985 ), 234 .
14 Novick, above n 13, 235. 15 Aron, above n 5, 83.
helped Germany or its Allies, or aff ected the unity of the nation or the liberty or equality of the French’. 16
It goes without saying that this new off ence raises some important questions in relation to the legality principle, and the drafters of the Ordinance were aware of these diffi culties. How did they therefore justify the new law in relation to non-retroactivity? One can identity three main justifi cations. First, the indignité nationale did not constitute a sanction in the criminal sense, but was rather a series of civil sanctions, such as the prohibition to be a state employee, and therefore did not fall within the scope of application of the principle of non-retroactivity of crimi-nal laws. Th is justifi cation is certainly unconvincing in light of how modern human rights law defi nes the scope of criminal sanctions, 17 but appeared in the offi cial explanatory memorandum of the law that accompanied its adoption. 18 Th e second justifi cation, while accepting that this indeed constituted a new off ence, consid-ered that it was acceptable because it provided for more lenient sentences than the Criminal Code for persons who would be prosecuted under the former rather than the latter, and therefore did not violate the principle of non-retroactivity which allows for the retroactive application of more lenient laws. 19 Th is explanation, put forward, among others by famous jurist and future drafter of the Universal Declaration of Human Rights René Cassin, is somewhat more elegant than the fi rst one, but is in fact equally unconvincing. Indeed, for one, it only applies to cases that would fall within the scope of both the Criminal Code and the law on indignité nationale . Persons who could not have been prosecuted under the stricter provisions on national security cannot seriously be said to be benefi tting from a more lenient law, because without that law they would not have been prosecuted at all.
Second, technically this justifi cation would only work if the new law replaced the former one, which was not the case. It was perfectly within the powers of the charging authorities to choose to prosecute under the Criminal Code, despite the existence of the law on indignité nationale . Th e argument would be more accept-able if, de minimis , the law had provided some form of immunity from prosecution under the Criminal Code for persons held responsible under the new off ence.
16 Peter Novick, above n 13, 237. Th e new off ence was adopted by an Ordinance dated 26 August 1944.
17 For example, it is settled case-law of the European Convention on Human Rights that what is
‘criminal’, and therefore triggers the fair trial protections of Article 6 of the Convention and arguably the protection against non-retroactivity of criminal laws and sanctions contained in Article 7, can-not solely depend on the qualifi cation under national law. Instead, the Court established a series of independent criteria: (1) the classifi cation of the off ence in the national system; (2) the nature of the off ence; and/or (3) the severity of the penalty imposed (see Engel and others v Netherlands , Judgment, 8 June 1976, §82–3). Applying these criteria, the Court has more particularly found that the fair trial protections apply in lustration cases, even when the national legislation might characterise such proceedings as ‘civil’ rather than ‘criminal’ ( Matyjek v Poland , Decision on Admissibility, 30 May 2006, §42–59). More specifi cally, the Court found that the prohibition of holding certain functions or public offi ce for a long period of time could be considered a sanction of suffi cient gravity to warrant the application of Article 6 ( Matyjek v Poland , Decision on Admissibility, 30 May 2006, §54–6). In light of this, there is little doubt that the French law on indignité nationale would be considered as a
‘criminal’ matter under the European Convention on Human Rights framework, thus imposing the application of the non-retroactivity principle of Article 7 of the Convention.
18 Aron, above n 5, 94. 19 Peter Novick, above n 13, 250, n 15.
Th e third justifi cation, and probably the least convincing from a legal point of view, in fact corresponds most neatly to the drafters’ state of mind. For some, the indignité nationale was not really an off ence, but a fact, or more precisely a ‘state’ in which a person found himself after having acted in a certain way. Th is state was not to be technically determined by a judge, but rather certifi ed as a given. Th e state therefore pre-existed the legal concretisation and therefore could not violate the non-retroactivity principle. Th is justifi cation adequately highlights the teleology of the épuration . Some people, through their actions, had brought shame not just to themselves, but to France as a nation. It was therefore considered as legitimate, if legally dubious, for the French Republic in return to declare that these citizens were not worthy of the same rights as other citizens.