Bad judgement at Bordeaux.

• Author: Laughland, John
• Position: French court's sentencing of Maurice Papon

The conviction in April of the former French treasury minister, Maurice Papon, for complicity in crimes against humanity has been welcomed across the world. That the former secretary-general of the Prefecture of Gironde (the department of which Bordeaux is the capital) was found guilty of helping to organize roundups of Jews, and of arranging train convoys to deport them, has been widely interpreted as a sign that France is finally "facing up to her past", and that worthy legal principles are being consolidated by which to establish individual responsibility for crimes committed by anonymous organizations like state bureaucracies.

The truth, however, is more complicated, and in many respects directly the opposite of this. One French law professor has called the trial "a legal disaster", and its political ramifications may prove disastrous as well.

To begin at the end: Maurice Papon was sentenced to ten years in prison. While the prosecution may be relieved that he was not acquitted, this sentence was a slap in the face for it. The public prosecutor had demanded twenty years, while many of the civil parties who were also prosecuting Papon in the same trial were calling for life imprisonment. The punishment meted out to Papon for complicity in the most heinous crime this century, if not in the whole history of mankind, is less than you get for armed robbery.

Papon was also acquitted of complicity in murder. Thus on the one hand, a minor provincial official in an occupied country has been placed in the same legal and moral category as a Heydrich or a Himmler, by being convicted of complicity in crimes against humanity; on the other hand, he was found innocent of complicity in murder. This incoherence bodes ill for the legal future of the concept of "crimes against humanity", for it is difficult to see how a crime which is so grave that, uniquely in the French penal code, it has been (retroactively) declared imprescriptible, can lead to anything less than the maximum sentence.

The outcome apart, very significant legal contortions were required to enable the Papon trial to take place at all, so much so that it is doubtful that it would ever have taken place under an Anglo-Saxon system of law in which, unlike that pertaining in France, political pressure is absent. The definition of "crimes against humanity" was changed four times (in 1985, 1992, 1995, and 1997) in order to allow it to be applied to Papon. The last change departed significantly from the definition of the term given at Nuremberg, by declaring that in order to prosecute someone for complicity in crimes against humanity, it was no longer necessary to show that the defendant had subscribed to the ideology of the principal actors of the crime. In other words, it was not necessary to show that Papon desired the death of Jews.

So why was Papon prosecuted? There is a whiff of ulterior political motive in the air. The original accusations against him were published in 1981, at an extremely sensitive political moment between the two rounds of the presidential election. Francois Mitterrand had emerged as the main challenger to Valery Giscard d'Estaing, whose budget minister was Papon, and the revelation that the incumbent government harbored a man who may have sent Jews to their death helped clinch the Left's subsequent victory.

By contrast, the fate of another, infinitely more compromised Vichy figure was different. Rene Bousquet, the head of the police under Vichy who negotiated the collaboration between the French police and the SS in the rounding up of Jews, was sentenced after the war to five years' national disgrace. This sentence was immediately overturned by the justice minister, who happened to be none other than his old friend, a certain Francois Mitterrand. Bousquet then pursued a successful career in banking. As president, Mitterrand did his utmost to prevent Bousquet from coming to trial again.

Perhaps Mitterrand wanted to protect a Mend, or perhaps he was afraid that his own then-unknown past as a Vichy government official would come to light in a way he could not control. Whatever Mitterrand's motive, Bousquet was miraculously assassinated just two days before he was indeed finally due to appear in court in 1995. But, in an apparent display of double standards, the advocate-general who helped bring Papon to trial, Marc Robert, and who was one of Papon's most virulent attackers during it, had himself apparently done Mitterrand's bidding and helped to retard the Bousquet trial. As an official in the Justice Ministry in 1991, Robert had written a technical memo giving legal reasons why Bousquet should not be brought to trial.

In other words, there is the suspicion that Papon was pursued at least partly for political reasons. This may be because Papon's own...