"According to the wording of the Statute of the International Military Tribunal at Nuremberg, persecutions are crimes against humanity where they are directed against non-combatants and committed in application of a deliberate State policy for racial, religious or political motives.
Acts perpetrated against Resistance fighters are excluded as war crimes, which are extinct due to the expiration of the statute of limitations. "
The Trial Of Klaus Barbie Finally May Force France To Face Unpleasant Facts
PARIS -- The trial of Klaus Barbie, known as the ``butcher of Lyon`` for his wartime Gestapo activities, finally starts next week. It will be something of an ordeal for France, which never really faced up to the extent of collaboration in Nazi atrocities during the German occupation.
It should be for the United States as well.
Jacques Verges, the enigmatic lawyer who is defending Barbie, says that ``France lives on an official truth that is still not real, it is a lie.`` He plans to make the most of Barbie`s incriminating knowledge about wartime France in his arguments.
A Dostoyevskean figure -- Verges defended the Lebanese terrorist Georges Ibrahim Abdallah, among others -- he explains his choice of clients as a ``passion.`` Crime, especially political crime, fascinates him, apparently as an expression of his revulsion against the social establishment.
``By crime,`` he said at a news conference, ``man leaves the animal kingdom and becomes man, or God.`` He likes to point out that France ``has pardoned itself for deeds`` (atrocities in the Algerian war) ``which it cannot pardon in others.``
He says it would be improper for a lawyer not to use any argument that could be useful for the defense. He hasn`t yet said whether he will introduce the evidence that the U.S. employed Barbie as an intelligence agent in Germany after the war, hiding him from the French until the risk of exposure became too great and he was spirited off to exile in Bolivia in 1951, at U.S. expense.
Barbie was handed over to the French in 1983, during a brief period of civilian administration in Bolivia. That revived stories about his U.S. connection. The Department of Justice conducted an investigation, published in August 1983, and the U.S. sent France a formal note of ``deep regrets`` for its role in obstructing justice.
The report was a strange combination of shocking revelations about U.S. recruitment and protection of Nazis to spy on Communists and of excuses and obfuscations. Allan A. Ryan Jr., the special assistant who wrote it, said that the choice of army intelligence officers to use Barbie and his kind ``was neither cynical nor corrupt`` in the circumstances.
Ryan gave some details of how the U.S. paid a former Croat terrorist for Barbie`s escape on one of the ``rat lines`` helping wanted war criminals flee arrest, but he said this was a unique case, evidently untrue. He wrote that the series of illegal acts in harboring Barbie were not just the fault of a few intelligence officers and that the U.S. as a government shared responsibility. ``But,`` he concluded, ``it is not naive to believe that we have seen the end of the attitude that anything is permissible, including the obstruction of justice, if it falls under the cloak of intelligence.``
The gaps in the report and continuing charges of many similar cases led Peter Rodino, chairman of the House Judiciary Committee, to ask for a review of America`s role in helping Nazis to resettle, in the U.S. and other countries including Canada, and in Latin America. The General Accounting Office produced another report in June 1985 that revealed more, but again selectively and with the justification that the people in question had done ``a service`` to the U.S. by providing intelligence against the Russians.
Former Congresswoman Elizabeth Holtzman, who has steadily pushed for an honest disclosure of secret postwar support for Nazi criminals, wrote Rodino that the GAO report was ``seriously flawed and hopelessly inadequate,`` which it was.
The GAO said it was given all existing documents it requested, but ``some could not be located or had been destroyed`` and in any case ``intelligence agencies often assign projects innocuous names`` so the investigators ``cannot assure`` they asked for all the right papers.
The cover-up has never ended. It became too embarrassing to admit what had gone on, in violation of U.S. policy, U.S. law, simple morality and, furthermore, effectiveness. Michel Thomas, a former French Resistance fighter who worked for U.S. Army intelligence in Germany immediately after the war until he saw what it was doing, quit in disgust. On top of everything else, he says, the ``intelligence`` obtained was totally useless, concocted, obsolete, a fiasco in every sense.
If there is still a point in trying Barbie, and there is, there is a more important point in clearing up these scandals. As Ryan wrote, intelligence agencies do tend to ignore everything but their operational goals, but he is wrong to think it can`t happen again.
The U.S. refuses to forget what President Kurt Waldheim of Austria cannot manage to remember and declines his visit. Fine, but we should also remember to clean up our own house.
Barbie`s Lawyer Tries To Turn Nazi Trial Into Political Event
LYON, France -- It did not take very long for the trial of Klaus Barbie to become as much a contest among lawyers as a lesson in history. Barbie, whose trial opened here last week, was the wartime chief of the Gestapo in this region of France. As the trial`s main exhibit, he did offer a kind of presence here for the first two days -- the gray, pallid, strangely smiling and apparently unrepentant presence of an old Nazi. But then he walked out of the trial in the middle of its third day, which very likely means he will never be seen publicly again. Remaining were two groups of lawyers symbolizing two opposing points of view in a judicial event full of symbolism.
Most numerous, sitting in tiers in the courtroom, are some 40 lawyers representing 110 civil plaintiffs in the case. These are people who claim to have suffered during the war at the hands of Barbie. The most symbolically important of the anti-Barbie lawyers is Serge Klarsfeld, a historian and war crimes researcher who, along with his German-born wife, Beate, found Barbie in 1972 in exile in Bolivia and then led a campaign to have him brought to France to for trial. Klarsfeld explains the issue: ``It is to have justice done with this particular war criminal, who is one among many others.``
But Barbie`s trial has become a complicated affair, largely because his lawyer, Jacques Verges has been striving mightily, and skillfully, to turn the proceedings into something other than a war crimes tribunal. Verges is, like Klarsfeld, a special sort of figure in France. He is well known as a political radical, devoted to the Palestinian cause, and has gained a reputation defending many terrorist suspects put on trial in France.
In numerous interviews just before the Barbie trial, and continuing during its first days, Verges has made clear his intention of transforming it into a political event, trying to advance what he sees as Nazi-like behavior on the part of France itself, portraying his client as a sort of misunderstood human being plagued by judicial injustice, not a symbol of evil.
Rene Hardy's Epitaph Obituaries Shortchanged Resistance Hero
Sailing south from St. Thomas to Guadeloupe, I was wondering how people could complain of seasickness on a stretch of the Caribbean as smooth and green as the top of a pool table, when the rest of the world was learning that French Resistance hero Rene Hardy had died.
If I had known how the U.S. press was playing the story, I probably would have felt nauseous.
Not till a week later did I finally catch up with the New York Times, which ran its obituary under the headline:
Rene Hardy, Resistance Chief
Accused of Giving Barbie Aid
The Washington Post used a non-judgmental headline, but zapped the deceased with the lead:
"Rene Hardy, 75, a World War II French Resistance leader whose reputation was besmirched by charges that he betrayed hero Jean Moulin, died April 12 at a hospice in Melle, France . . . "
At least the Los Angeles Times strove for balance by noting that Hardy ''was a hero of the Resistance to some and the betrayer of that Resistance's leaders to others . . . "
But considering his amply documented valor as chief of railway sabotage during the Nazi occupation - and the highly dubious sources of the subsequent charges against him - Hardy rated a better epitaph.
I had tried to reach Hardy (prounounced Ar-dee) while preparing my recent series on Nazi war criminal Klaus Barbie, the notorious "Butcher of Lyon."
Although I knew there were lingering suspicions that Hardy might have betrayed Barbie's most famous victim, the legendary Resistance coordinator Jean Moulin, my own research convinced me of the man's innocence. I'd hoped to convey this to Hardy, himself. But unfortunately, he was already too ill to converse.
Jean Moulin was captured when Barbie, acting on an informer's tip, raided a clandestine meeting of Resistance chiefs in a hilly suburb of Lyon. Of the eight leaders present, only Rene Hardy escaped.
Producing a pistol from a hidden sleeve pocket, Hardy shot his way out of the trap. A German bullet shattered his arm, but he made it to the edge of a clearing, tumbling down a steep slope to temporary safety. There, a pair of cyclists turned him in to the French police.
Later, while confined to a hospital prison ward, Hardy made another daring escape and fled to Paris, where he resumed active service with the Resistance.
As the lone escapee from the Lyon raid, Hardy was called before a postwar tribunal, which cleared him of any responsibility for Jean Moulin's capture. But then another tribunal was convened to hear new testimony implicating Hardy as the informer who'd told Klaus Barbie about the fateful meeting in Lyon.
Ironically, this testimony had been sworn in absentia by Barbie, who was then being shielded from the French by his new employer, the U.S. Counter Intelligence Corps!
Because of major contradictions in Barbie's deposition, the second tribunal ended in a hung jury. Barbie's CIC control officer was convinced that the Nazi simply fabricated charges against Hardy "to take the heat off himself." But the inconclusiveness of that later trial attached lasting doubts to Hardy's otherwise splendid record.
Through the years, Hardy also was badmouthed by Raymond Aubrac, one of the leaders captured along with Moulin. I had my doubts about Aubrac, because he personally escorted Moulin to the meeting. Although Moulin always stressed strict punctuality as essential to security, he arrived with Aubrac 45 minutes late. Only then did Barbie's Gestapo storm the site.
I also found it odd that Aubrac's wife, Lucie, sent a cyanide-laced food parcel to Hardy - which he intuitively declined - in the hospital prison wing.
I have since come across a recent story in Le Monde about a suit filed against the documentary film, "Que Verite est Amere" (How Bitter Is the Truth). The plaintiff charges the film wrongfully suggests his guilt in Jean Moulin's betrayal.
The plaintiff's name is Raymond Aubrac!
Why wasn't that mentioned in Hardy's obituaries?
The Prosecutor v. Klaus Barbie
| Court | Supreme Court (Criminal Law Chamber), France |
| Case number | 85-95166 |
| Decision title | Arrêt |
| Decision date | 20 December 1985 |
| Parties |
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| Categories | Crimes against humanity |
| Keywords | crimes against humanity, deportation, execution, pillage, torture, war crimes |
| Links |
Summary
Klaus Barbie was a member of the German SS and later the head of the Gestapo in Lyon, Occupied France in 1942. He was wanted by the French authorities for charges of crimes against humanity committed during World War II, during which time he earned the nickname the ‘Butcher of Lyon’ in recognition of his notorious interrogation style.
After the war, he was recruited by the Army Counter Intelligence Corps of the United States, which later helped him emigrate to Bolivia. When the French authorities became aware of his residence in Bolivia, an arrest warrant was issued. Bolivia expelled Barbie and, as he was disembarking a plane in French Guyana, he was picked up by French authorities and detained.
A crucial question in his case has been the qualification of the crimes with which he is charged: crimes against humanity are not subject to a statute of limitations and may therefore be prosecuted irrespective of how long ago they were committed. By contrast, war crimes are subject to the French statute of limitations of 10 years. The present decision was an appeal by a number of civil parties and associations against a decision of a lower court, which held that proceedings against Barbie could not continue for conduct qualified as war crimes as the 10 year window had elapsed. The Supreme Court of France upheld the applicability of the 10 year statute of limitations to war crimes, but it clarified the difference between conduct which may amount at the same time to war crimes and crimes against humanity. As a result, Barbie’s case was sent back to the lower court so that proceedings could continue against him on charges of crimes against humanity, particularly persecution of innocent Jews as part of the "Final Solution". Crimes committed against resistance fighters were, however, excluded as war crimes.
Procedural history
On 3 November 1982, the instructing judge issued an arrest warrant for Klaus Barbie who was wanted for crimes against humanity committed in 1943 and 1944 during his time as the head of the Gestapo in Lyon, then Occupied France.
On 5 February 1983, Barbie was expelled from Bolivia where he had been hiding for many years under an assumed name to French Guyana. Whilst disembarking at the airport in French Guyana, he was intercepted by members of the Gendarmerie who questioned and detained him. That same day he was brought before the investigating judge who ordered his transfer to prison. On 12 February 1982, proceedings commenced against Barbie.
By a decision of 4 October 1985, the chambre d’accusation of the Court of Appeal of Lyon characterised the crimes with which Barbie was charged as war crimes, subject to a statute of limitations of 10 years, rather than as crimes against humanity, which are not subject to a statute of limitations. The 10 years having expired, proceedings were therefore barred on this ground. The Court sent the case back to the Cour d’assises for the crime of kidnapping minors at Isieux.
The civil parties enumerated above appealed the decision and their appeals were joined by the Supreme Court.
Related developments
Barbie is charged with having committed acts of deportation, torture, execution and pillage in 1943 and 1944 during his time in the German SS and as the head of the Gestapo in Lyon, occupied France.
Core legal questions
- Is there a distinction between war crimes and crimes against humanity concerning the applicability of statutes of limitation?
- Can Barbie be prosecuted for crimes against humanity on the basis of the same conduct which constituted the basis for war crimes, and for which he was sentenced to death in absentia by a military tribunal in 1952 and 1954?
- What criteria may be used to distinguish conduct that may amount at the same time to crimes against humanity and war crimes?
Specific legal rules and provisions
- Article 6 of the Statute of the International Military Tribunal at Nuremberg.
- Article 7 of the European Convention on Human Rights.
- Article 15(2) of the International Covenant on Civil and Political Rights.
- Articles 2(4), 7, 575(3) and 593 of the French Code of Criminal Procedure.
Court's holding and analysis
Unlike crimes against humanity, war crimes are committed in the specific context of hostilities between States and in the course of which perpetrators and victims come to light. After the close of hostilities, it is necessary that time erases the acts committed during this time, even if such conduct was contrary to the laws and customs of war so long as such conduct is not susceptible to requalification as crimes against humanity. There is no authority superior to French domestic law, which declares that war crimes are not subject to a statute of limitations. Thus, the 10-year statute of limitations remains applicable.
Crimes against humanity and war crimes can be committed successively or simultaneously. The conduct for which Barbie was sentenced to death as a result of jn absentia trials by the Lyon military tribunal in 1952 and 1954 can form the basis for new proceedings against him for crimes against humanity, which are not subject to a statute of limitations pursuant to the Law of 26 December 1964.
According to the wording of the Statute of the International Military Tribunal at Nuremberg, persecutions are crimes against humanity where they are directed against non-combatants and committed in application of a deliberate State policy for racial, religious or political motives. Such persecutions are war crimes where they are characterised by the fact that they are useful for the conduct of the war. In application of these principles, the Supreme Court sent Barbie’s case back to the Cour d’assises who are to examine charges of persecution as crimes against humanity against innocent Jews in view of the Final Solution. Acts perpetrated against Resistance fighters are excluded as war crimes, which are extinct due to the expiration of the statute of limitations.
Further analysis
- M.C. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application, Cambridge: Cambridge Universtity Press, 2011. See esp. pp. 277, 355-356;
- M. Frulli, 'Are Crimes Against Humanity More Serious Than War Crimes?', European Journal of International Law, 2001, Vol. 12, pp. 329-350;
- R.A. Kok, 'Statutory Limitations in International Criminal Law', University of Amsterdam Dissertation, 2007;
- J-O. Viout, 'The Klaus Barbie Trial and Crimes Against Humanity', Hofstra Law and Political Symposium, 1999, Vol. 3, pp. 155 et seq..
Instruments cited
- Statute of the International Military Tribunal at Nuremberg (Nuremberg IMT Statute), 1945.
- European Convention on Human Rights, Rome, 4 November 1950.
- International Covenant on Civil and Political Rights, 16 December 1966.
- French Code of Criminal Procedure (in French only).
Related cases
- Cour de Cassation (Criminal Law Chamber), The Prosecutor v. Klaus Barbie, Case No. 83-93194, Arrêt, 6 October 1983.
- Cour de Cassation (Criminal Law Chamber), The Prosecutor v. Klaus Barbie, Case No. 83-94425, Arrêt, 26 January 1984.
- Cour de Cassation (Criminal Law Chamber), The Prosecutor v. Klaus Barbie, 86-92714, Arrêt, 25 November 1986.
- Cour de Cassation (Criminal Law Chamber), The Prosecutor v. Klaus Barbie, Case No. 87-84240, Arrêt, 3 June 1988.
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