Memory on Trial in Contemporary France: The Case of Maurice Papon

As the [Maurice Papon] trial got underway, journalist and historian Éric Conan cited a candid remark which had been made by one of the lawyers representing the civil plaintiffs: "Magistrates don't change: under the Occupation, they did what Pétain asked of them: today, they do what public opinion demands of them. But what matters is that Papon should be brought before an Assizes Court (cour d'assises)."(11) There was no doubt that public sentiment was, by late 1997, registering a desire to see Maurice Papon in the dock. Any doubts that were expressed largely invoked the accused's advanced age, the problem of evidence after more than fifty years, or the regret that higher Vichy functionaries -- like former police chief René Bousquet or his henchman Jean Leguay -- had not lived to face the same legal fate. Civil plaintiffs had been lobbying for this outcome since the early 1980s, and in the intervening years public opinion had not only rallied to this campaign, but the demand that Papon face his accusers in court had become the latest focus of the "memorial militancy" that had gripped France since the early 1990s. Fueled by the Touvier trial of 1994, Mitterrand's public pronouncements about his wartime activities, President Chirac's "Vél d'Hiv" speech of 16 July 1995 which accepted French responsibility for crimes committed by the Vichy state, and many other ongoing revelations and controversies relating to the Vichy era, Papon's prosecution had become a clarion call in the ongoing battle over how France should deal with Vichy's role in the Final Solution.(12) The few voices that expressed reservations about the use of the courts for these symbolic, pedagogic or commemorative purposes tended to be drowned out in the louder clamor for a legal showdown. But doubts that this trial would also accomplish "the application of the law, the dispensation of justice and the punishment of the guilty" proved to be well founded.(13)
In the emphatic words of Éric Conan: "On the plane of History and morality, the condemnation of Maurice Papon is indisputable."(44) And as reactions to the verdict made clear, the decision to convict Papon of complicity in crimes against humanity, despite evidential gaps in the prosecution case, was a clear articulation of the jury's moral condemnation of his failure to extricate himself from this "chain of responsibility" and to exercise the right to disobey orders. In this respect, the resonances of the verdict may well be a salutary lesson for today's functionary, who, as historian François Baédarida noted, is increasingly enmeshed in complex administrative systems which have the tendency "by virtue of the compartmentalization of functions and tasks, to dilute personal responsibility and to develop an entirely administrative and professional logic -- technical, even technocratic -- as if acts were deprived of meaning within a soulless mechanical apparatus."(45) Contemporary societies, Bédarida continued, must make it their urgent task to define the duty to disobey faced with certain orders, just as the individual must learn how to assume moral responsibility for his or her acts rather than hiding behind the excuse of impersonal administrative authority. But if these are undoubtedly moral imperatives for the present and future,(46) how do they square with the legal task of the Bordeaux Assizes Court which was to judge Papon for specific past acts of which he was accused? On the one hand, the fact that the jury found Papon guilty in arrests and sequestrations relating to four out of eight convoys cited in the indictment suggests that the balance of evidence implicated him directly in the fate of the individuals whom the civil plaintiffs represented.(47) And on this basis, it seems right that he should have been convicted. On the other hand, if the assertion of Libération editor [Serge July] is also true -- that Papon "has just been condemned...for his actions as an authoritarian high functionary, efficient and indifferent to the consequences of his actions,"(48) then one cannot help agreeing with [Michael R. Marrus]'s post-trial observation that, from this perspective, thousands of ordinary functionaries escaped justice. Echoing [Henry Rousso]'s reservations about celebrating the trial's symbolic function, Marrus maintained that "the goal of a trial is to seek justice, not history.... I don't think that the Papon trial was a vehicle for historical explanation."(49)