The Bordeaux Trial
The Bordeaux Trial
Prosecuting the Oradour-sur-Glane Massacre
Abstract and Keywords
This chapter analyses the trial of Oradour-sur-Glane, which opened before a military tribunal in Bordeaux in 1953. On 10 June 1944, a German column advanced towards the small village of Oradoursur-Glane in the south-west of France. The soldiers killed a total of 648 villagers, making it the worst massacre in occupied France, one of the worst in Western Europe and on a scale comparable to some of the most dramatic mass executions of the Eastern Front. While the trial was meant to condemn Nazi barbarity, it also ended up raising some difficult questions about France, Alsace, forced incorporation, duress, and justice between communities — all issues for which the Bordeaux tribunal turned out to be ill-equipped to address.
On 10 June 1944, a German column advanced towards the small village of Oradour- sur-Glane in the department of Haute-Vienne, Limousin region, in the south-west of France. It was composed of the 3rd company of the 1st battalion of Panzergrenadier of the 4th SS-Panzer-Regiment ‘Der Führer’ of the 2eSS-Panzer-Division ‘Das Reich’. The division had left for Normandy almost as soon as news of D-Day had arrived. The Limousin region had been the theatre of many FFI (Forces françaises de l’intérieur) attacks, which had led to bloody reprisals. In Tulle alone, ninety-nine men had been hanged.
Oradour-sur-Glane was methodically surrounded. Villagers were ordered to assemble in the village square with their identification papers. Those who tried to flee were shot. Women and children were put on one side, men on the other. The men were then dispatched to six different locations, in front of which heavy machine guns were placed. At the sound of an explosion, they were gunned down, with the shooters often aiming for their legs. Some were then finished off at point blank range. The dead and dying were set on fire. At around the same time, the women and children were locked into the village church. A canister of asphyxiating gas was set up, which promptly exploded. The church was filled with black smoke. The Germans shot indiscriminately. Grenades were thrown in. The bodies were subsequently covered with straw and church chairs, and set on fire. The church bell melted under the temperature. The rest of the village was systematically plundered and set on fire.
Altogether, 648 people (245 women, 207 children including six below six months, and 196 men) were killed, although only fifty could be identified. A dozen managed to escape before being caught; five men managed to run away from a burning barn after being shot. One woman survived the church massacre after jumping from a church window, breaking her leg, and being shot by an SS soldier in the process (she (p.138) was found the next day). She had lost her husband, her son, her two daughters and her seven-month-old grandson. The massacre was the worst in occupied France, one of the worst in Western Europe and on a scale comparable to some of the most dramatic mass executions of the Eastern Front.
In 1953, eight years after the massacre, the trial of Oradour-sur-Glane opened before a military tribunal in Bordeaux, composed of one professional civilian magistrate and six military adjuncts (who, according to law, had to be drawn in majority from the ranks of the resistance). Twenty-one members of the third company, out of sixty-four who had been identified as having been involved and still alive, were accused of being co-authors or accomplices to crimes of murder, acts of barbarity, voluntary arson and plunder. The trial elicited a passionate response in France and attracted considerable press interest. Of the twenty-one, fourteen were Frenchmen from Alsace-Lorraine who had been conscripted into the SS, thirteen by force. One German was sentenced to death, four to sentences of forced labour, and one was acquitted. Of the Alsatians, only the volunteer was condemned to death, nine to forced labour, and five to jail terms. Forced labour and prison sentences ranged from five to twelve years. Under very tense circumstances, a law of amnesty was voted by Parliament on 19 February 1953, which led to the liberation of those Alsatians who had been forcefully conscripted. This chapter analyses the legacy of the Bordeaux trial, a trial that is today somewhat forgotten even in France, but which is remarkably modern in terms of the dilemmas it raised.
(I) Historiography and the Problem of Context
The telling of the Oradour massacre is a delicate historiographical exercise.1 Apart from the occasionally frankly revisionist writing, all accounts agree on the essentials of what happened, even though all concede that some facts must necessarily be the object of speculation. The survival of some key witnesses makes certain facts incontrovertible—for example, Mrs Marguerite Rouffanche provided a unique insight into what happened in the church since she was its sole survivor—whilst the death of many others means that some elements remain forever shrouded in mystery; the vast majority of victims, but also many of the key perpetrators, died in the months of combat that followed.
More significantly, all accounts must walk a fine conceptual line between focusing entirely on the massacre and trying to contextualize it. Too little context will not serve the needs of history, pedagogy or memory. The massacre was not a random event in the sense of being entirely arbitrary. It fitted into a pattern of actions (p.139) against civilians, for example, characteristic of the violence of Nazi occupying troops, perhaps more common on the Eastern Front but increasingly transposed to the Western fringes of Europe as well. To miss that element would not do historical justice to the events of 10 June. Yet context is also tricky, and what one fits in that loose category as having been somehow relevant can raise delicate questions about what exactly was the meaning of that fateful day in 1944. There can also be such a thing as too much context, if an episode becomes disconnected from the genealogy of crimes against humanity, so particularized and over-explained by a sequence of events as to be trivialized.
At any rate, the massacre was not, so to speak, committed in a day. Rather, it was directly and indirectly linked to a complex series of circumstances. First and foremost, perhaps, the massacre is linked to the history of occupation, of which it constitutes one of the final, most desperate and bloodiest episodes. Germany occupied the northern half of France in 1940, with the Vichy Government being given formal authority over the southern zone as little more than a puppet regime. Nazi troops operated in occupied territory, in a context where significant sections of French society and the French ‘state’ were willing to cooperate with them, but where they also encountered significant resistance from a minority and a sullen opposition from many. The Limousin region was in that respect not unlike many regions of occupied France. It had significant maquis2 presence, yet there were also many—including, most likely, the inhabitants of Oradour—who were simply trying to get on with their lives. Almost from the beginning, occupation was a ruthless affair, designed to subjugate and plunder the occupied areas.
A second element of context that seems crucial is the nature of the Waffen SS, since it provides the crucial link between the two regions that would prove so central to the Bordeaux trial: the Limousin and Alsace. The Waffen SS was the military arm of the SS, which had originally been created as a protection group for Hitler but had morphed into a veritable state within the state after his accession to power. It was an elite corps that demanded absolute allegiance to the Fuhrer. By 1944, the Waffen SS was not quite what it had once been as a fighting force, although it proved in Oradour and elsewhere that it was certainly a murdering force. It had suffered extensive casualties on the Eastern Front, where many of its regiments had been decimated. Although it may seem paradoxical that an elite unit traditionally based on rigorous selection of volunteers should have enrolled members forcefully and against their will, such was the situation by 1943 that it had to be less ideologically and racially rigorous. Given the SS’s ambition to showcase Aryanism, it was natural that in occupied territory it would look for recruits who conformed to its racial stereotypes.
A third contextual element that is perhaps most problematic is Alsace. Some treatments of the Oradour massacre focus on Alsace more than others, in ways that seem to suggest that the crimes initially committed there by the Germans were the cause of subsequent atrocities that occurred 500 miles to the south-west; others portray Alsace as factually relevant but ultimately incapable of explaining something such (p.140) as Oradour. This tension between those who place an emphasis on the problematique of Alsace and those who do not is still felt today, either implicitly or explicitly, and works on Oradour are still judged by many in the regions concerned on the basis of which side of the line they fall on. It is, at any rate, this fine line that the Bordeaux military court itself sought to tread, one that repeatedly threatened to engulf the trial and that would test reconciliation and national unity in post-war France.
Alsace was long a part of the Holy Roman Empire, but had gradually become a French province in the seventeenth and eighteenth centuries, particularly following the French Revolution. In 1871, after the French defeat in the Franco-Prussian War, it was annexed by the Prussians who proceeded to Germanize it. It was partly over Alsace and its sister province, Lorraine, that World War I was fought between France and Germany. Alsatians were conscripted by Germany in 1914, although many managed to escape to the French lines and switch sides. Alsace was returned to France in 1919 under the terms of the Treaty of Versailles following which it underwent a rigorous process of Francization. The difference between Alsace and the rest of France during World War II was that it was not merely occupied: it was de facto annexed by Hitler to Germany in 1940, thus fulfilling an old German desire for revenge, as well as fitting well with the Nazi idea of uniting all ‘Volksdeutsche’ (ethnic Germans).
Needless to say, such forced national incorporation was in contravention of international law. Extraordinarily, and even though the Armistice said nothing to that effect, Maréchal Pétain, the World War I hero whose efforts largely led to Alsace (and Lorraine) coming back into the French fold, hardly protested this incorporation into Germany. This led many Alsatians to feel betrayed by France. The annexation was swift and brutal: civil servants were forced to swear allegiance to the Reich; the French language was banned (including French names); membership in the Hitler Youth was compulsory for those under eighteen and a border was set up with France. A re-education and security camp was created at Schirmeck-Labroque to deal with those resisting Germanization to which many suspected ‘francophiles’ were promptly sent, some on their way to further deportation.
(II) The Court and its Procedure
Defence for the German accused argued that only an international tribunal composed of the victors, the defeated and neutrals could judge them. Yet there was little doubt that, in the spirit of Nuremberg, the crimes had been committed in a specific location and should therefore be judged by domestic French courts. France had been quite keen to prosecute Germans and in the years following the war many had already been convicted.3 The French framework for the prosecutions was attacked by the accused as incompatible with the London Agreement (p.141) and the Nuremberg judgment. In rejecting this challenge, the Cour de Cassation, the highest French jurisdiction, found that it ‘belongs to the French nation…to ensure through its tribunals and according to its legal rules the repression of those crimes that were committed on French territory, or against French nationals’. The French ordinance of 1944 and the law of 1948 contravened no provision of international law, since neither the London Agreement nor the Nuremberg verdict anticipated how crimes should be prosecuted in France, and in fact emphasized that they should be judged in the countries where the crimes had been committed ‘according to the laws of these countries’.
A substantial amount of time had elapsed since 1944 when the trial began, which created opportunities even as it raised problems. On the one hand, the atmosphere was calmer than it would have been immediately after the war when thousands were executed in France outside any judicial process as a result of the sombre episode known as épuration. One Alsatian who had early on been identified as a participant at Oradour was tried, condemned to death, and almost lynched by a crowd in Limoges (he was subsequently released on appeal because he was a minor at the time of the events, but was retried in 1953 before the military court on a new legal basis). On the other hand, the passage of time meant that the overall political context was less favourable to prosecutions, and that even though the suffering was still very much alive in the Limousin (it arguably still is even today), some memories of actual facts had begun to blur. The Bordeaux trial also raised what have become familiar problems of pre-trial detention. Seven Germans and two Alsatians had, by the time the trial began, been held for nine years, whilst those not detained had gone on with their lives. The President of the tribunal was visibly irritated at trial by how long the accused had had to wait for their day in court.
The trial was conducted in a classic inquisitorial vein, characteristic of the French criminal procedure that has been somewhat less influential in contemporary international criminal justice. The instruction (judicial investigation) had occurred before the trial and led to a significant dossier d’instruction (judicial investigation file). It had started early after the massacre, the Vichy Government having protested to the Germans about the killings, and the Wehrmacht Command in France having complained to the SS about them. However, its work had been marred by the fact that it unfolded in a country in the midst of hostilities where questioning those involved was out of the question, and evidence was rapidly being lost. Moreover, the Wehrmacht had no jurisdiction over the SS, and even though SS General Lammerding apparently initiated an investigation, it predictably led nowhere. The investigation subsequently struggled to find those responsible in prisoner of war camps throughout Europe.
The presiding judge was omnipresent, at times cajoling and at times threatening. Prosecution and defence were consulted by him almost on a need basis. There was much direct, unmediated contact between the judge and the defendants, none of whom had the option to be silent. Interrogation of the defendants was on the basis of the dossier d’instruction. It has been claimed that the judge’s first statement in the courtroom was for the gendarme to ‘let the guilty enter’. Much of the defendants’ interrogation by the judge was devoted to verifying things that they had said to (p.142) their interrogators (British and French) and which were in the dossier. Statements made years earlier by the defendants to military police and which they had since withdrawn were often held against them.
The defendants often claimed that they had never said some of the things that were in the dossier, or that they had not read their deposition at the time of signing it. There was evidence that some had consulted to come up with a common version that would exonerate them. Many changed their version of events during the investigation and during trial. Some hinted at having been brutalized by their interrogators, notably the British military police, but these claims were not pursued in court and their defence lawyers did not even seek to exclude the evidence supposedly thus obtained. They claimed that their recollection of events was sketchy, except when it came to evidence that might exculpate them. With the passage of time, however, some witnesses’ own recollections had blurred.
As in previous and subsequent war crimes trials, both defendants and victim witnesses were tempted to make grand declarations about what they saw as the issues at stake rather than simply answer the judges’ factual questions. Some of the defendants or their counsel emphasized the price Alsace had paid to remain French, whilst victims insisted that this issue was strictly irrelevant to what had occurred in Oradour. The President of the tribunal ignored them or cut them off, but it was hard not to get a sense of the deeper animosities and contradictions implicit in the testimonies. For the rest, much of the trial was dominated by factual issues and the complex attempt at reconstituting who had been where, when and doing what. The fact that there were so few survivors made it very difficult to ascertain who had done what, underscoring the sinister paradox that the more ruthless of war criminals—those who left none behind to testify—might also be those who stood the best chance of escaping conviction. Perhaps equally importantly, the trial focused on who knew what in advance, with a view to establishing premeditation or the lack thereof.
Contrary to the French tradition and because the court was a military one, victims were not represented and could not avail themselves of the parties civiles institution. Only a few seats were reserved for them, and they had none of the procedural rights that would normally have been associated with parties civiles, such as addressing the court or examining the investigatory file on which the case was based. Nonetheless, they had been closely associated at the earlier investigative stage and the presiding judge addressed them directly on several occasions, as if to recognize their huge stake in the trial.
Another forty-four defendants were also tried in abstentia, although they were hardly mentioned during trial and were seen as guilty by the prosecutor largely under the Law of Collective Responsibility,4 even if they did not individually participate in killings. In some ways, this part of the proceedings would confirm the worst suspicions about the in absentia procedure for a lawyer trained in the common law tradition and wary of defendants effectively not in a position to defend themselves: all were condemned to the death penalty. Nonetheless, had (p.143) any been caught subsequently (none were), they would have been entitled to a retrial.
(III) Anti-Insurgency and Crimes against Humanity
To this day, the exact reason why the massacre was ordered remains unknown. In part this merely illustrates its absolute gratuitousness and horror. However, it did fit into a pattern of orders and strategies, quite characteristic of the ‘general and systematic attack against civilian populations’ that has become the litmus test for crimes against humanity. The head of the division, General Lammerding, had been ordered to assist Wehrmacht units in the south-west to ‘rid the region of its communist bands and lastingly impress the populations by acting with no restraint whatsoever’. The massacre was committed against the background of the Sperrle order, which instructed occupation troops on how to deal ruthlessly with ‘terrorist’ action. The Waffen SS had honed their murderous skills on the Eastern Front, and their modus operandi in Oradour reflected a pattern long evident in Ukraine or the Balkans that was being transposed on the Western Front as resistance networks sprung into action after D-Day. In the days preceding the events, the Germans had become increasingly impatient with attacks on troops and particularly the kidnapping by the French resistance of a German officer. This was in the overall context of the Allied landing in Normandy and probably a realization among the Germans that the tide was turning. The goal may have been to terrorize the population into submission, especially after an uprising in neighbouring Tulle (the city had briefly, but precariously, been retaken from the Wehrmacht and was brutally punished), and to limit guerrilla action against German columns. Evidence presented at trial of exchanges between SS officials in the hours that preceded the massacre suggested a punitive expedition was in the making. Yet even that explanation fails to be entirely convincing: if reprisals or a warning had been intended, why was so much effort put into hiding the crime rather than publicizing it as an example?
Why Oradour was chosen despite its lack of apparent link to the maquis also remains unclear. It was at one point argued that it may have been confused with Oradour-sur-Vayres, a neighboring village which was a significant centre for resistance, although that thesis now tends to be discredited. In fact, rather than being targeted because it was a maquis-supporting village, it may well have been chosen precisely because the Germans knew it had no maquis, and would therefore prove a particularly defenceless target. If nothing else, it was relatively small (for example, compared to neighbouring Saint Junien, a town of 10,000) and thus made for a feasible, well planned one-day murderous expedition. Another possible motivation was that Oradour, as a relatively well-off village that had remained somewhat apart from the war, was a prime plunder target.
These doubts about the precise motivation for the operation ultimately made it hard to characterize it criminologically. Was it first and foremost a manifestation of an excess of violence in war but nonetheless, even in a distorted way, part of the (p.144) pursuit of war in that it responded to specific military incidents? Did it exemplify the dangers of anti-insurgency warfare in a context where partisans had a tendency to blend with the local population? Or was it more gratuitously sadistic and exterminatory—more reminiscent, except for its lack of discriminatory or racist character, of the Einsatzgruppen’s reign of terror behind Eastern lines?
Whilst there is no entirely satisfactory answer to these questions, victims provide an interesting prism through which to address them. Victims were characteristically ambivalent about the testimony presented in court. In part, they did not want Oradour to be simply presented as an act of folly, one entirely irreducible to human rationality, because of the risk that folly might somehow excuse what happened, and make the events less representative of German barbarity. In addition, folly was not particularly credible given the number of individuals involved and the meticulous organization of the massacre. It was important to victims’ perception of that day’s evil that it had been premeditated.
However, nor did victims want the massacre to be attributed to even a distorted military rationality. In fact, victims were wary of attempts to ‘explain’ the massacre too much, in particular by those who would have drawn a link with maquis activity, something that might have made it look more like an operation of reprisal than an act of unprovoked barbarity. It was important in the public debate to make the killing appear entirely unnecessary from a military point of view, even if that led to some very twisted logic,5 if only because the massacre must have had some marginal chilling effect on the resistance (or could somewhat rationally be thought of in that way by Nazi tacticians). In the end, Oradour had to be sufficiently planned that it could not be dismissed as a psychopathic aberration, yet not so rational that it might find apologists. This line between reason and folly was arguably one of the finest navigated by the trial.
(IV) Collectivization and Moral Hierarchy
Although the focus of a trial such as the one in Bordeaux was to establish the guilt or innocence of select individuals, and although survivors and relatives of victims insisted that this was all there should be to it, it proved extremely hard to abstract these individual issues from the complex ways in which they related to group responsibility. The argument in Alsace was very much framed as one of that region’s own grievances emerging from the war. Alsatian public opinion, of course, condemned the massacre. The accused even had Pierre Zackenberg as their lead lawyer, an Alsatian résistant who had been held by the Germans from 1942 to the end of the war, and who could hardly be suspected of sympathy with collaboration. Moreover, (p.145) by a bizarre twist of fate, a number of Alsatians (nine, including two children, to which should be added fourteen children from neighbouring Lorraine) were among the victims at Oradour, having been evacuated there by the French authorities prior to the outbreak of hostilities in 1939.
This did not prevent Alsatian public opinion from seeing considerable injustice in the particular case that was unfolding in Bordeaux. The Alsatians thought that they had equally been victims of the Germans and that the trial essentially prosecuted victims. They could point to the fact that the German Gauleiter in Alsace, Robert Wagner, had been convicted and executed for war crimes, partly on the basis of the forced recruitment of 130,000 Alsatian men. Of those, 30,000 had died, 20,000 had disappeared, 10,000 were gravely wounded, and many of the rest were traumatized forever by what they had seen and done on the Eastern Front. No Alsatian family was immune from the consequences of forced enrolment (one defence lawyer did not hesitate to compare the 600 victims of Oradour to the 40,000 victims in Alsace). In fact, and by another curious twist of history, Karl Buck, the sadistic SS-Hauptsturmführer and head of the Schirmeck camp, was being tried in Metz simultaneously, further inflaming Alsace’s sense of victimhood.
There was also a feeling that Alsace was doubly victimized by France, having been largely abandoned to its Germanization by the Vichy Government, and then being made to pay for some of the tragic events that followed. The Alsatians went as far as to suggest that they were equally victims of Oradour-sur-Glane, something which provoked considerable indignation in the Limousin, where forced recruitment was seen as incommensurable with the wanton killing of the innocent. Nonetheless, there was a deep-seated feeling of being ill-understood by the rest of France, and of resentment for French society and the state for overlooking the tragic circumstances of forced enrolment. For many in Alsace, the co-presence of malgré nous (literally ‘despite ourselves’—this is how the French describe those forcibly conscripted into the German army) and German SS in the docket in Bordeaux was tantamount to prosecuting tormentor and victim simultaneously.
Foremost in the minds of many Alsatians was also a specific matter of what one might call judicial aesthetics. It had proved very difficult to find or arrest the German officers suspected of being most responsible for the massacre. It was not immediately known after the war that the commander of the Das Reich division, General Lammerding, was living in Düsseldorf, in the British-occupied zone. After 1948, the official British policy was to only extradite Germans accused of homicide. At any rate, the French seemed to have failed to make a formal extradition request. It has been argued since that Lammerding received CIA protection in exchange for intelligence. At any rate Lammerding subsequently thrived as an entrepreneur in Germany, his name adorning the trucks of his construction company. Similarly, there were some doubts about how persistently French authorities had pursued the extradition of Captain Kahn, commander of the third company. Defence lawyers in Bordeaux claimed that he was hiding in Sweden, but that no demand for extradition had been made by the French government. By contrast, the surviving Alsatian members of the third company had been much easier to locate and the (p.146) irony was that, even though their case may have been more ambiguous, no issue of state cooperation or extradition arose in their case. This led to a widely shared perception in Alsace that the forcefully conscripted foot soldiers were being made to pay for the high ranking fugitive Nazi fanatics.
The net result was also that fourteen of the accused were from Alsace whilst only seven Germans were in the dock. This gave the appearance that two thirds of those involved in the crime were from Alsace. This ratio was largely accidental, and based on who had been identified, who had survived and who could be arrested (a total of fifty-two Germans had been indicted, and at least 150 had been involved). The actual ratio on the day of the massacre was closer to one Alsatian for every five or six Germans. Nonetheless the perception was very much that Alsatians were made to bear a disproportionate share of the blame, something which only reinforced the Alsatian sense of victimization. As in subsequent trials, it would prove very difficult to shift attention away from this symbolism simply by insisting that the trial was only about individual guilt.
(V) Joinder and Disjoinder
The perceived problem of having the malgré nous stand trial next to the German SS translated into successive challenges to the trial all of which sought to juridically differentiate the situation of the Alsatians from that of the Germans. At the outset, there had been hopes that the Alsatians would be tried entirely separately, and in a different court than the Germans. The French war crime legislation (an ordonnance) of 28 August 1944, which provided the framework for post-war prosecutions, only applied to foreign nationals, as a result of the fiction that war crimes could not be committed by French nationals in occupied France. The idea was that French collaborators should fall under a different jurisdiction for treasonous acts. In fact, one of the Alsatian accused (Grienenberger) claimed the protection of the non bis in idem principle arguing that he had already been prosecuted for treason in 1947.
At the same time, there was a strong preference for all the Oradour events to be prosecuted in a single trial. In today’s parlance, one might say this made sense from the point of view of transitional justice. If nothing else, it made sense from the point of view of the prompt and diligent administration of justice. Whatever other political considerations may have come into play, it was extremely difficult to distinguish between ‘French’ and ‘German’ acts at Oradour, and certainly the victims had faced a group of men all equally donning the SS uniform and, as far as they were concerned, all equally murderous. Victims also strenuously argued against the attempt to equate the prosecution of les douze (‘the twelve’) with that of Alsace, insisting that only individual criminal liability was at stake. The Alsatians might even gain from being judged side-by-side with the much more evidently guilty German SS. Following a visit to Oradour by the French President Vincent Auriol in 1947 and with the full support of the then very powerful Communist Party, a new law was promised that would remedy the loophole. The law, adopted (p.147) on 5 September 1948, made the repression of war crimes applicable to the French as well, and made them susceptible to trial before a military court. The Cour de Cassation rejected Grienenberger’s argument that he would be judged twice for the same acts, since the treason accusation and the Oradour accusations under the 1948 law were entirely irreducible.
Having failed to obtain a separate trial before ordinary French courts, the Alsatian counsel for the accused subsequently did everything they could to have their case disjoined from that of the Germans. Some went as far as to suggest that trying the Alsatians and Germans together amounted to fulfilling Hitler’s annexionist project by showing them as intimately bound. The Cour de Cassation refused the disjoinder in August 1950, and sent both Germans and Alsatians to trial together. Several other attempts to obtain a disjoinder during the trial failed, despite having obtained the support of the prosecutor (apparently under pressure from Paris) and the neutrality of German counsel. Apart from the need to respect the 1948 law, whatever criticisms had been levelled at it, the fear expressed by the presiding judge was that disjoinder, albeit presented as a mere symbolic and procedural move, would require the court to decide on the issue of forced enrolment (if it had occurred, then the 1948 law might be inapplicable) and thus prejudge the substance of the verdict (to which one might respond that joinder also seemed to prejudge something).
Ultimately, however, the adoption of a 1953 law essentially reversing the 1948 law as far as the French accused were concerned (their personal participation had to be proved henceforth and could not be assumed, whereas the Germans remained under the less favourable regime of being presumed to have joined willingly and participated in the crimes of their units) made the case for separation stronger. At the trial, the fact that the German and Alsatian defendants sat on opposite sides had already reinforced the sense that quite different predicaments were at stake. Since the trial had already reached the pleading stage by the time the 1953 law was adopted, securing the presence of the Alsatians at the Germans’ trial and vice-versa seemed less important than when opportunities to confront versions might be necessary. The presiding judge ultimately ordered a ‘division’ of the trial rather than a full ‘disjunction,’ which would have required retrials.
(VI) Organizational Guilt and the Reversal of the Presumption of Innocence
The 1944 and particularly the 1948 law on which the trial was based was a highly contentious piece of legislation. It seemed ideally suited to the circumstances of Oradour and anticipated difficulties about establishing individual guilt given the dearth of testimony about individual acts. Its key Article proclaimed that when the war crimes enumerated in the earlier 1944 law ‘can be attributed to the collective action of a group or military formation that belongs to an organization declared criminal by the international military court (which included the Waffen (p.148) SS)…then all individuals belonging to this formation or this group may be considered coauthors’.6
In addition, according to Article 2 of the law:
For the purposes of applying the previous article, acts are considered imputable to the collective action of the relevant formation or group, war crimes committed by its members in the same region, even in isolation or out of their own initiative when, because of their importance, their gravity, their repetition, or the number of victims, these acts constitute the elements of a collective action.7
This was ‘joint criminal enterprise’ (JCE)8 avant la lettre, mixed in with organizational guilt, a particularly tenuous and opportunistic construct from the point of view of fundamental principles of criminal law, which would certainly appear shocking by today’s even imperfectly liberal standards. The law, often designated as the ‘Law of Collective Responsibility’, made little attempt to appear less extreme. In truth, however, it merely generalized to Frenchmen a series of presumptions introduced as early as 1944 for the prosecution of German war criminals. As long as only Germans were involved, the French legal world had lived quite well with the presumptions, which conformed to a sense of German willing participation in both the war effort and some of the crimes that ensued. The presumptions were destined to appear more unfair when the malgré nous were involved and part of French public opinion became much more painfully aware of how exorbitant such a provision was.
At the time the law provoked outraged reactions and was denigrated in the Alsatian press. Within the legal field, none other than Henri Donnedieu de Vabres, the French Prosecutor at Nuremberg, argued both in specialized law journals and in the press that the law had misunderstood the intentions of the Nuremberg and Tokyo tribunals when criminalizing organizations, which had never been to ignore the principle of individual guilt and the presumption of innocence.9 Several doctrinal articles at the time underlined the fragility of the law from a human rights point of view, the feeling being that the law was at any rate largely superfluous given that French law allowed for the possibility of convicting individuals for a crime they had committed in reunion as part of a group with a common intention, even when the precise circumstances of their participation could not be elucidated.10
(p.149) The biggest problem was the way in which the law seemed to depart from cardinal principles of French criminal law concerning individual guilt, among which were some of the very principles that the Vichy regime had strikingly departed from, and whose pre-eminence had been re-established by the Libération. The notion of collective guilt was also said to contravene the Universal Declaration of Human Rights, the recently adopted European Convention on Human Rights, and the principle of individual responsibility. Moreover, the law shifted the burden of proof onto the accused rather than the prosecution. To make matters worse, it was retroactive, in violation of French criminal law principles (and in ways that were perhaps reminiscent of the Vichy regime’s own infamous legislation). Its adoption certainly did not help legitimize the trial in Alsatian public opinion. Because of the way it threw a broad mantle of opprobrium on a large class of individuals, it seemed to echo France’s broad stigmatization of Alsace for the crimes.
Nonetheless, the law was found to be compatible with France’s international obligations by the Cour de Cassation in 1950, upon challenge to the order sending the defendants to trial before the Bordeaux military court. It was said to merely implement what had been the London Charter (Articles 9 and 10) and the Nuremberg Judgment’s recognition that certain organizations were per se criminal. The international tribunal, in accordance with its mandate, had not shied from recognizing that participation in several Nazi organizations was per se criminal, even though that was not necessary for the conviction of any particular defendant. In transferring into French law not only the provisions relating to the guilt of organizations, but also the essence of the safeguards for non-criminal individual members, the French legislator had conformed to its international obligations.11 At any rate, no source of general international law mandated that domestic prosecutions be carried out in any particular way, and considerable latitude was granted to states who exercised their sovereignty in such matters.12 It may have mattered also that the Nuremberg judgment was, strictly speaking, only concerned with a ‘participation in a criminal organization’ offence, whereas the French law dealt with the repression of war crimes13 (although if anything one might think this made matters worse).
It is true that the law did ultimately provide a way to prove their innocence for individuals who could establish that they had been forcefully enrolled and did not participate in the crime, and not merely for those who could prove they had ‘opposed’ the crimes as had initially been suggested in Parliament, which would have placed a very heavy burden on the defendants. In other words, aside from the (p.150) issue of burden of proof, at least merely belonging to a group involved in crimes was not sufficient for a conviction, provided one could prove the absence of an actus reus (but how was one to prove conclusively that one had been forcefully enrolled and not participated in the crimes one was accused of?). The presumption of criminality was refutable. In addition, even within the framework of the 1948 law’s notion of collective responsibility, the Cour de Cassation made it clear that the actual criminal acts of each participant had to appear in the indictment (if nothing else, this would prove crucial for sentencing).14 The Cour de Cassation also picked up the fact in 1950 that some of the defendants had been given insufficient time and means to collect evidence to rebut the 1948 law’s presumptions and ordered a remedy.
Moreover, the law did not oblige the judge to consider the impugned acts collectively and was not exclusive of ordinary French law on criminal participation, something which turned out to be crucial in due course. Throughout the trial, the presiding judge, Nussy Saint-Saëns, seemed wisely committed to not using the 1948 law to make his case. By the time the law was abrogated (see below), there was little choice for the prosecution but to try to prove some form of ordinary criminal participation rather than rely on the presumptions of collective responsibility. Nonetheless, even the 1948 law’s refutable and optional presumptions of guilt did more to discredit the prosecutions in light of part of French public opinion and legal intelligentsia than any other provision.15
(VII) Orders, Forced Enlistment, Duress
Given the broad arsenal of presumptions available to the prosecution, the debate quickly shifted to defences, in a way that was to resurrect some of the burning issues at the heart of the national debate. Only one of the accused acknowledged his participation in the massacre. Many of the others confessed to having been at Oradour, but all claimed, to the presiding judge’s disbelief, that they had taken no active part in the killing, and in some cases not even heard gunshots or explosions. Rather, everyone had been standing guard outside the village or taken away sick. Blame was placed by the malgré nous on Sergent Boos, the widely despised Alsatian SS volunteer, and, of course, on the Germans themselves. Yet even as they sought to minimize their own participation, legal defences were hinted at on several potentially exculpatory overlapping levels.
At the most extreme, the argument could be made that the defendants were only following orders. This was an argument most clearly made by the German defendants. It was clear that the Company enforced harsh discipline and some of the defendants, even among the Germans, could show that they had been on its (p.151) receiving end. Some of the testimony heard on the defence side insisted on the habits of blind obedience and practices close to brainwashing that the Hitler youth inculcated to young recruits prior to their enrolment. A bizarre incident also threw an unwelcome light on the events: a letter sent by SS General Lammerding from his German retreat in which he argued that the Germans should be freed since they had merely respected orders. Even the French prosecutor seemed to recognize that an army could not function merely on the basis of some loose subordination, and that discipline and obedience were the cornerstones of military life. The defence insisted that soldiers could not be philosophers and could not inquire into the justness of acts they were ordered to commit. Moreover, there was some evidence that at least the subordinates may have been led to believe that the civilians were in fact résistants or Résistance sympathizers16 and that any action undertaken in Oradour was already covered by general orders. At any rate, by the time they might have had an awakening of conscience, there would have been very little time to decide to disobey, and even less to survive in doing so, so that disobedience was by any standard unrealistic.
In spite of all this, the defence was bound to fail given the very strong Nuremberg precedent and the idea that superior orders can never be a defence. The Lammerding letter was wisely never produced in court by counsel for the German defendants, and would probably have done little in terms of minimizing their guilt. The French prosecutor insisted that due obedience did not extend to acts that were manifestly illegal, such as the killing of women and children. The killings of Oradour went far beyond any presumption of legality. Nothing had been found during the pro forma searches carried out by the SS in the village (which probably had more to do with looting than seriously looking for weapon caches) that could have suggested to those present that they were involved in anything other than a wanton massacre, and those who had any doubts should have shed them by the time it was clear that hundreds of women and children were targeted.
Something more than merely following orders was therefore necessary, and much was made of the fact that twelve of the Alsatians, like 130,000 of their peers, had been forcibly enlisted. This involved a problematic conflation of the issue of the personal responsibility of the defendants and the collective fate of Alsace as a region, which counsel for the defence actively promoted. Compulsory military service had been introduced in 1942. There was a lingering suspicion in France that Alsatian SS members were not entirely hostile to the goals of Nazism (something which German propaganda certainly encouraged by presenting Alsatians as SS volunteers), reinforced by the fact that a small minority had clearly volunteered including, notably, Sergeant Boos, a defendant at the trial.
In reality, however, most of the Alsatian defendants and the Alsatian recruits in the SS were hardly fanatical Nazis. Some had served with the French army in 1939–40. Many went to extremes to avoid compulsory labour or service in the German military or SS (self-mutilation was not unheard of). Several had accomplished minor acts of (p.152) resistance before and after being enlisted (smashing a window featuring a picture of Hitler, for example, or warning people about to be arrested), and some may even have been forced into the SS precisely because of their ‘Frenchness’. In fact, forced enrolment was organized in Alsace largely because of the disappointing number of Alsatians volunteering for the SS (at most 2,000). Francophile sentiment ran strong in the region. The malgré nous were treated harshly by their German superiors and Alsatian volunteers because of their supposed lack of genuine Nazi sympathies and a suspicion that they were always on the verge of deserting (hence the apparent instruction that they never be left alone). Indeed the German General Staff had objected to including Alsatians in the Wermacht on account of their unreliability. Their weapons were apparently often checked after military action to verify that they had been used. Once captured in Normandy, one of the accused had subsequently participated with the Free French in the invasion of Germany and, for the trial, two had to be repatriated from Indochina where they were fighting for France.
The argument was that the initial element of compulsion made the subsequent following of orders a defence since constraint (other than general and habitual respect for the law) was involved at the outset. Indeed, the 1948 Law of Collective Responsibility anticipated as one possible defence that the accused ‘bring proof of having been forcibly drafted’. This was all the more so since forced enrolment was itself a war crime. Hence the malgré nous could be regarded as themselves victims of a crime, a situation that evokes the status today of child soldiers accused of war crimes. It is worth highlighting the nature of that constraint. In annexed Alsace-Lorraine, the young were forced to join the Hitler youth, to attend the Reich school of Germanization, to enrol into the army, and were drilled Prussian-style. New recruits were given German nationality. Furthermore, the re-education camp in Schirmeck was available to deal with recalcitrants and torture them into submission. Crucially, Wagner also implemented the system of Sippenhaft, ie reprisals against the family based on the idea of ‘blood’ or ‘clan’ responsibility. Many of the defendants knew of men in Alsace whose entire family had been deported after they refused to serve in the SS. This led to a culture of blind obedience.
Of the fourteen Alsatians tried in 1953, twelve had been forcefully enrolled at the age of seventeen or eighteen, so that some today would count as child soldiers. In fact, the Alsatian who had been condemned to the death penalty in 1946 for his participation in at least one murder at Oradour was eventually acquitted on the basis that he was not eighteen at the time. Because the 1948 law did not, unlike ordinary French law, anticipate a specific regime for minors, they were tried with those who were adults at the time before the Bordeaux military court. Nonetheless their youth and immaturity were frequently mentioned as factors that would have made them extremely vulnerable to pressure and intimidation. Witnesses testified in Bordeaux about how difficult it would have been for anyone to oppose orders or desert the SS. It was repeatedly argued that one could not expect teenagers to be heroes and to sacrifice their lives rather than follow an order to kill. Moreover, given the contempt in which SS (especially French SS) were held in the region, it would likely have been difficult for them to surrender safely to the maquis (the malgré nous who deserted on the Eastern Front invariably ended up in gulags (p.153) where they were treated harshly). This vision of particularly harsh conditions being brought to bear on young shoulders was given renewed credibility by the fact that several of the witnesses testifying in the accuseds’ favour were résistants in good standing, especially Alsatian résistants, who knew very well the risks they or others had taken to escape German enrolment.
Yet one of the characteristics of these Alsatian testimonies was that few seemed to have anything to do directly with the actual facts of Oradour, and were instead awkwardly about a much more general problem occurring far removed from the scene of the crime. Moreover, the circles of the French resistance were wary of the suggestion that ‘collaboration’ was acceptable as long as it had been coerced, and that forced enrolment might provide a blanket defence. After all, one might be initially coerced to join an organization yet later, through peer pressure or group bonding, become one of its enthusiastic executioners. At the very least one ought to be able to prove continuing pressure beyond the initial pressure of forced enrolment.
As many as 40,000 Alsatians had managed to escape compulsory military service by fleeing to France or Switzerland. Alphonse Adam, the head of the Alsatian student resistance, was executed as a result of his refusal to join the SS. The veterans’ association of Lorraine, the region neighbouring Alsace, insisted that desertion had always been an option, perhaps to better distinguish themselves from the Alsatian malgré nous. One might argue that this was particularly so in the case of the third company which, contrary to normal SS practice, had had the ‘chance’ of being deployed in their own country, a terrain which would presumably have been more hospitable for them than, say, Soviet Russia. The South West Federation of the Forces Françaises Combatantes emphasized, rightly or not, that there were plenty of local maquis to which the SS could have deserted. Indeed, at least one Das Reich member had escaped to the maquis after Oradour and had subsequently died fighting for France’s liberation. It seemed impossible to entirely exclude the possibility of moral choice, and the fact that it could be rational or simply brave rather than implausibly heroic.
Pointedly, the Alsatians were asked why if, as they professed, they hated being in the SS, they had failed to desert; or, even more problematically, why they stayed when their work consisted only in persecuting civilians, but in some cases fled when faced with the harsh reality of combat in Normandy. The line between constraint and libre arbitre was also a tenuous one. After all, it may well have been, as their lawyer suggested and as the German press insisted much later on when the Alsatians were amnestied, that not even the German indictees had joined the SS freely. This argument in defence of the Germans tended to weaken the same argument being made in favour of the Alsatians, for the obvious reason that it was not something that French and international post-war public opinion was willing to contemplate (it would have unravelled the one thing on which all agreed: Nazi monstrosity). Moreover, the gap between forced enrolment months or years earlier and the commission of atrocities one June day in 1944 simply seemed too large to sustain a convincing defence that the crimes were entirely unintentional. Staying and complying with orders to participate amounted to endorsing the massacre. At best, the prosecutor argued, forced enrolment should (p.154) be an extenuating circumstance relevant for sentencing, not one that would exclude guilt.
Alternatively, the argument was made that the defendants were not only (or really) following orders, as much as responding to a threat of death if they refused to execute them. The defence of superior orders, in that case, really becomes a defence of duress, which could nullify intent even more effectively than forced enrolment. It was a defence that was and continues to be anticipated by Article 64 of the French Criminal Code. There was certainly evidence that refusal to obey an order during operations might lead to a court martial and an execution, possibly immediately. However, again the issue of desertion ‘at the earliest possible moment’ arose. It was viewed as inherently risky but certainly not more so than remaining with a unit destined for the Eastern Front or Normandy. Moreover, there was damning evidence during the trial of the third company having gone quite happily to the massacre (including hints of an orgy of drinking and, possibly, rape in the night that followed), and having executed it with a cruelty against specific victims that belied any notion of duress. Although this evidence was not related to any specific defendants, it did nothing to improve their individual cases.
In terms of sentencing, it appears that lack of direct participation in some of the worst killings (firing squads, church massacre, individualized killing), young age, forthrightness with the tribunal, remorse and contrition were all considered mitigating factors resulting in simple prison sentences, which in some cases amounted to very little, given time already served. Conversely, rank (particularly the German and the Alsatian non-commissioned officers), direct participation in killings and unrepentance led straight to death sentences or forced labour convictions. Overall the sentences of the Alsatians were marginally less harsh than those of the Germans for comparable facts, and were adopted by a majority of judges rather than unanimously, a nod at least in the direction that their situation was not quite comparable (although of course not enough of a nod from the Alsatian point of view).
In that respect, it seems that the tribunal judged German failure to stand up to their superiors and disobey orders more harshly than it did the malgré nous. The suggestion may have been that Alsatian presence among SS ranks was based on pure coercion making a gesture of defiance highly implausible; whereas it may be that the Germans were seen as having more of a special responsibility given that they were operating among their own. Yet even this distinction (which was not explicated and is merely proposed hypothetically here) is peculiar in its generality. Surely some Germans might be able to argue that their being in the SS was largely based on a similar type of coercion, a point raised by some in the Bundestag at the time.17 Moreover, if one was serious about one’s war crimes justice cosmopolitanism, should it really have made (p.155) much of a difference, sheer duress being equal, that one was a national or not of the country behind the crimes? The Alsatians’ fate may have been a cruel one, but if anything their claim to having been radically victimized by the Nazis might have been stronger had at least some risen up in Oradour at the point of being asked to commit the most Nazi-like of acts.
A peculiar twist nonetheless made the sentences of the malgré nous much harder to stomach: the Germans had all been detained since the end of the war and were therefore close to liberation when time already served in pre-trial detention was discounted (the majority were in fact freed soon after the verdict). Conversely, the Alsatians, who had all appeared as free men and had gone on with their lives since the end of the war, faced the beginning of lengthy sentences. Predictably, the sentences left all French sides profoundly unhappy. Alsace was convinced that the Court had largely failed to hear its arguments, and that a few of its sons were scapegoated and further victimized. Limousin public opinion found the sentences completely inadequate, the expectation being that only the death penalty could have made sense of the horror of the crimes committed. The misunderstanding was complete and created considerable political strains.
(IX) Politics and Amnesty
The Bordeaux trial presents a unique case in which debates in Court were paralleled before the French Parliament in almost real time, in ways that challenged the separation of power between the legislature and the judiciary. The Law of Collective Responsibility had itself been adopted with the Oradour massacre in mind, a law almost tailor-made for the Bordeaux trial and the claims of victims. Once the trial had begun, however, the powerful Alsace incorporés de force organizations, relayed by local elected officials and Alsatian members of Parliament, successfully lobbied for the Law of Collective Responsibility to be debated anew. There were in other words two parallel tracks, one judicial and one parliamentary, dealing with the exact same questions. Debates were launched in Parliament following court decisions, as though the legislature sought to intervene in judicial proceedings. Whereas arguments on Alsatian martyrdom could only be secondary in the courtroom, they received a full airing in Parliament. The Alsatian members of parliament proposed an amendment to the 1948 law. The Communists, who emerged from the war and occupation as some of the most reliable résistants, were almost alone in opposing any changes.
Geographically, the fact that the trial occurred in Bordeaux, within a bus ride of Oradour, meant that considerable local pressure came to bear, sometimes in the form of protests outside the courtroom. The judge made it known via the press present in the courtroom that he disapproved of such demonstrations, and thought that they did not help the victims. However, the general context was one of popular and political pressure on both sides. The trial was also intensely covered by the media in a way that was relatively new at the time.
(p.156) Ultimately, the pressure of the Alsatian members of Parliament carried the day and the Law of Collective Responsibility was abrogated, in the midst of the trial, by 372 votes to 279. This gave rise to the curious and quite unique situation where a trial was deprived, in mid-course, of the very instrument on which it had partly been based. The trial continued because the law still needed to go through various stages to become formally binding and because ordinary French criminal law remained an option to convict the accused. However, there is little doubt that the trial’s vitality had already been fatally compromized, and that future developments were already contained in this turning of Parliament against its own creature.
The result of the vote only reinvigorated Alsatian efforts to bring the trial to a halt. Général de Gaulle weighed in favour of more understanding for Alsace. A mere ten days after the verdict, an amnesty was adopted in the Assembly by 319 votes for, 211 against and fifty-five abstentions, the only of its kind in the history of the French legal system. It was a considerable victory for Alsace, which in the space of a year had managed to obtain the vote of two laws nullifying the Bordeaux trial. It is best understood as a pacifying measure designed to further a form of regional reconciliation in France. Politically, such had been the Alsatian reaction to the initial verdict that some feared that it would reinforce the region’s autonomist aspirations—and some promoters of the amnesty subtly raised that prospect. National reconciliation was hailed as the overriding goal by the centre right. This was not the only initiative that seemed to have reconciliation as a superior goal: the lack of diligence with which French authorities pursued the extradition of the German officers at large could also be attributed to the onset of the Cold War and a desire to move closer to Germany.
The amnesty was criticised by victims who were left with an extremely bitter taste in their mouths and the impression of having been betrayed. It also represented an unprecedented meddling by the legislature with a court decision. It was feared, although this probably proved unfounded, that the amnesty law had handed former collaborators a new defence of having been coerced into collaboration. The fact that the two defendants who had been sentenced to death (the Alsatian volunteer and the German Sergeant) were pardoned did nothing to restore faith in the justice system. By 1958, all were free men.
(X) Legacy and Epilogue
Perhaps one of the most interesting aspects of the Bordeaux trial was the reverberations it created in France, and the way every judicial stage had a tendency to spill beyond the courtroom. Following the initial condemnation of the malgré nous, for example, Alsace reacted strongly. In Strasbourg, a 6,000-strong demonstration was organized, replicated by several smaller events elsewhere in Alsace; the Place de Bordeaux was renamed; the Monument aux Morts was draped in black. Local elected officials claimed they would cease to sit and carry out their functions until Alsace’s honour had been restored.
(p.157) Yet the reaction of Oradour to the amnesty was in some ways even more drastic. In 1945, Général de Gaulle had visited the village and decided it should have a special place in French national memory. The old village was to be preserved and granted a special status in French law, whilst a new Oradour would be built next to it. The Oradour authorities clearly supported the project and conceived of themselves as guardians of its legacy. Following the Bordeaux verdict, however, the village engaged in a decades-long symbolic retaliatory action against the French state: it sought the return of the commemorative site from the government; the association of survivors and the village sent back the medals that they had received; state officials were denied access to commemorations (no French President was received there until François Mitterand); the village refused to transfer the ashes of the martyrs to the crypt built by the state for that purpose. Perhaps most strikingly, a list of all the members of Parliament who had voted for the amnesty was displayed prominently at the entrance of the village for several years below the phrase Oradour, souviens toi! (Oradour, remember!). Thus did the village drape itself in its pride and for several years manifest its extreme repulsion at the outcome of the trial through various retaliatory measures.
These reactions are no doubt part of the fabric of transitional justice, even though they are not formally juridical. Only a legally pluralist sensitivity to how non-legal gestures inform the normative outcomes of transitional justice processes can make sense of what is at stake. Although there has been some subsequent reconciliation with the French state, the issue is still a tense one, as shown by a succession of incidents in the last decades.
More than fifty years later, criminal justice finally caught up with Heinz Barth, the sole surviving Nazi officer implicated in the massacre, who had been found in East Berlin in 1983 under an assumed name. It seems that the German Democratic Republic (GDR) at the time saw that a prosecution might buttress its anti-Nazi credentials against those of the German Federal Republic. On trial, Barth admitted that he had initiated the shooting and personally killed about fifteen people. But he argued that as an officer he was forced to follow orders. He was sentenced to life imprisonment but was freed fourteen years later on medical grounds. He would go on to live another ten years.
In 2003, a French man, Vincent Reynouard was condemned by the Tribunal Correctionnel de Limoges to one year imprisonment for ‘apology of war crimes’ (denialism) following the publication of a book that challenged key aspects of the Oradour-sur-Glane massacre, including the fact that it had been planned.
Since 2004, a former Bordeaux defence lawyer has sought a revision of the judgment on the basis that the amnesty law, whilst it expunged the crime, did not render null and void the legal findings. The reasoning is that if the French Parliament could amnesty those convicted one week after the trial, then the judiciary should also follow suit, its own decisions having been cast into doubt by the legislature.
In 2004, a Corrèze organization unsuccessfully opposed the Senate’s 2008 Draft Law Implementing the Rome Statute on the grounds that it anticipates a thirty-year limitation period, which would amount to a second amnesty for those responsible for the massacre.
(p.158) In 2010, two Alsatian malgré nous organizations sued Hébras, one of only two surviving victims of Oradour, for claiming in a book he had published on the massacre that among the massacre’s executioners were ‘some Alsatians supposedly forcibly enrolled in SS units’. The Strasbourg Tribunal de Grande Instance rejected the claim. Subsequently Hébras received anonymous hate mail claiming that he ‘did not deserve his identity card, whereas the Alsatians fought and paid dearly with their blood to become French again’.
Then on 5 December 2011, the German police, at the request of the German Federal War Crimes Office, carried out searches in the houses of six elderly Germans who had been identified as having participated in the massacre following the release of GDR political police documents. The searches do not seem to have yielded any leads further linking these individuals to Oradour, and the last two surviving victims have tended to dismiss such late German activism as coming far too late for justice.
These distant legal judicial and political ripples, whilst minor, testify to the difficulty of ever ‘moving out of’ or ‘beyond’ transitional justice, and the very long legal trail of frustration, pain and antagonism that a blundered judicial process can produce.
The Bordeaux trial is a stark illustration of some of the well-known challenges of carrying out criminal trials for atrocities, even in a country otherwise dedicated to prosecuting those responsible, as post-war France surely was. It suggests the importance of unintended effects in even the most scripted and well-intentioned judicial proceedings. The trial meant to condemn Nazi barbarity, the one thing on which all seemed to agree; for that purpose it benefited from a tailor made law that was to have made justice if not swift at least severe. Instead it mostly ended up raising some difficult questions about France, Alsace, forced incorporation, duress, and justice between communities; all issues for which, to make matters worse, the Bordeaux tribunal turned out to be ill-equipped to address.
It was in the end almost impossible to bridge the gap between two narratives of what had happened: on the one hand a vision of irredeemable crime, made perhaps even worse by the fact that the Alsatians had been involved in killing fellow citizens; on the other hand, a vision of a tragedy which led young men to commit reprehensible acts, but as a result of a sophisticated machinery of persecution and violence that left them little choice and made them into emblems of a region’s tragic experience of the war. The trial was so caught up in demands for recognition of collective suffering that it could not mediate without leaving at least one side unhappy. Perhaps the only thing that everyone agreed on was the evil of the Nazis, but even that did little to cement national consensus.
Ultimately, the Oradour victims were sacrificed for the sake of a hypothetical national unity and the need to move on with a reconciliation process that was simply decreed unilaterally from above. Parliament reasserted its democratic prerogatives but in a way that was so heavy handed and opportunistic that its actions seemed (p.159) destined to antagonize. The judiciary, after being given what seemed to be a free hand to try those responsible, was twice reined in: first by having the law on which the trial had been based pulled from under its feet; and then, when it nonetheless successfully managed to convict those responsible under ordinary French law, having its entire effort reduced to nothing through amnesty.
Here was the one trial that could not fail: abominable acts, a polity ripe for justice, a strong international framework—yet which foundered on the rock of radically incompatible narratives, and served only to open up further abysses of misunderstanding. Even radical evil, it seems, could have its reasons and, recast as merely the absence of heroism, it may have suddenly looked strangely familiar to a France that had itself been deeply compromised in collaboration—forced or not. As such, the whole effort is a familiar caution about the limits of criminal justice within transitional justice processes when it operates from uncertain common premises and is asked to precede rather than follow collective exercises of soul-searching. Thus stands the Bordeaux trial, a particularly French tragedy, yet one that contains a more general lesson on the disheartening powerlessness of humanity in the presence of moral disasters. (p.160)
(1) There is a vast literature, mostly in France, dedicated to the Oradour massacre, although far fewer books on the Bordeaux trial itself. Leading examples of the latter on which this chapter draws are Jean-Jacques Fouché, Oradour: la politique et la justice (Saint-Paul: Souny, 2004); Guillaume Javerliat, Bordeaux 1953, le deuxième drame d’Oradour: entre histoire, mémoire et politique (Saint-Paul: PULIM, 2008); Jean-Laurent Vonau, Le procès de Bordeaux: les Malgré-Nous et le drame d’Oradour (Strasbourg: La Nuée Bleue, 2003); Douglas W Hawes, Oradour–The Final Verdict: The Anatomy and Aftermath of a Massacre (Bloomington, IN: Authorhouse, 2007).
(2) Literally, ‘scrub’, where the Résistance retreated to operate against the Germans.
(3) Claudia Moisel, ‘Des crimes sans précédent dans l’histoire des pays civilisés: l’Occupation allemande devant les tribunaux français, 1944–2001’, Mémoires/Histoire, 1 (2006), 186.
(5) For example, one of the most bizarre (and unconvincing) arguments heard in this context was that Dresden and Hiroshima were not criminal because their very magnitude showed them to have been necessary to the belligerents’ war effort, whereas localized, ‘incomplete’ massacres such as Oradour betrayed something more sinister. See (disagreeing) Jean Pierre Maunoir, ‘Le Procès d’Oradour’, Revue de droit international, de sciences diplomatiques et politiques (1953), 186.
(6) Loi No. 48-1416 of 15 September 1948 on war crimes (my translation).
(8) A.M. Danner and J.S. Martinez, ‘Guilty Associations: Joint criminal enterprise, command responsibility, and the development of international criminal law’, California Law Review, 93 (2005), 75.
(9) The judgment did make membership in certain ‘criminal’ organizations a crime, but only so long as membership had been voluntary and the individuals had known that the crimes were committed. The 1948 law essentially reversed the burden by considering that members of such organizations were to be presumed to have joined willingly and to have known the crimes committed. Although the language of the Nuremberg judgment remained superficially, in effect the 1948 law was much harsher: Henri Donnedieu de Vabres, ‘Note, Cour de cassation, 3 août 1950’, Recueil Dalloz, 40 (1950), 706.
(10) Maurice Patin, ‘La France et le jugement des crimes de guerre’, Revue de science criminelle et de droit comparé (1951), 393.
(11) At any rate it was not for judges to ‘appreciate…the value of a text that has been regularly debated by legislative assemblies and promulgated by the executive’. This points to the lack of constitutional judicial review available to ordinary courts in France, let alone the possibility of reviewing a law’s compatibility with international human rights law.
(12) Donnedieu de Vabres nonetheless argued, probably rightly, that it was not open to the French legislator to invoke the authority of the Nuremberg Judgment, and then to reinterpret one of its key concepts (the criminality of certain organizations) in a way that was at odds with the tribunal’s own interpretation: de Vabres, above n 9, 706.
(15) Donnedieu de Vabres, in particular, was sceptical that it made any difference that the presumptions were optional. Their very existence as tools of the judiciary offended the legal canon, went against the idea of the judicial discretion (‘intime conviction’), and there was no guarantee that they would not be used: Donnedieu de Vabres, above n 9, 706.
(16) The Résistance is the generic name given by the French already at the time to all efforts at overthrowing German rule and ending occupation. It included efforts within France and outside it.
(17) Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration (New York, NY: Columbia University Press, 2002), 139.