Claudia Moisel. Frankreich und die deutschen Kriegsverbrecher: Politik und Praxis der Strafverfolgung nach dem Zweiten Weltkrieg. Göttingen: Wallstein Verlag, 2004. 288 S. EUR 42.00 (cloth), ISBN 978-3-89244-749-8.
Reviewed by Frank Buscher (Department of History and Political Science, Christian Brothers University)
Published on H-German (October, 2004)
Incomplete Justice
Claudia Moisel's book closes a large gap in the historiography on Allied efforts to punish Nazi war criminals and their impact on the relations between the Germans and the major western Allies. Numerous studies have been written about the Trial of the Major War Criminals alone. Trials at the zonal level also continue to draw the attention of scholars. Interest in the American zone, where a wide variety of defendants--from Kapos and low-level camp guards to high-ranking functionaries of the Hitler regime--faced U.S. military tribunals, remains very strong. War crimes policy and trials in the British zone have also been the subjects of extensive research. Unfortunately, the treatment of German war criminals in France proper and in the French zone of occupation have largely suffered from neglect by historians. Moisel's convincing work on the evolution, implementation, and implications of French policy finally rectifies this omission. It should impress upon many a reader that the study of French efforts to bring the Nazi perpetrators to justice is perhaps even more intriguing than that of the American and British programs. After all, France's situation during and after the war was remarkably complex. Among the major western Allies, only France experienced a German occupation. The occupiers encountered both determined resistance, albeit with some delay, and substantial collaboration, especially in but not limited to Vichy. French society was divided, and this division and attempts to end it were bound to impact the French policy on and treatment of German war criminals. The Germans committed numerous crimes in France. These ranged from the shooting of hostages to the brutal murders of civilians perpetrated during so-called anti-partisan operations to the deportations of almost 80,000 Jews from France to their deaths in the east. The occupiers also compelled several hundred thousand French men and women to work as forced laborers, while siphoning off much of the country's wealth.
After the war French officials estimated that the Germans had committed 20,000 violent crimes, including war crimes, in France. In light of the depressing statistic, the French government in exile was naturally keen to see the perpetrators punished. Moisel argues that De Gaulle initially wanted war crimes proceedings primarily for the purpose of procuring reparations rather than to determine moral and criminal responsibility (p. 54). Along with the Allied governments and other governments in exile, the London French had dispatched a delegation to the UN War Crimes Commission, established in 1943. Although the French experience proved frustrating in the long run, important themes emerged. First, the delegation did not view the deportations of Jews from France as unique or especially heinous. Instead, they were portrayed collectively as one of a myriad of German crimes. Secondly, the French representatives tried hard to convince the other delegates of the necessity and benefits of declaring entire Nazi organizations criminal. This, they argued, would enable prosecutors to indict occupation officials in whose cases evidence of individual guilt frequently did not exist. In May 1945 the UNWCC failed to adopt the proposal in its entirety, convincing the French to give up on this organization and to focus their efforts on prosecuting war criminals in their own country.
On August 30, 1944, officials of the French provisional government in North Africa published a law that became the legal basis for trials in France. German war criminals were to face military courts. Since the regular French army would soon be purged of elements loyal to Petain's Vichy regime, each court was to have a majority of judges from the military wing of the resistance movement. They had jurisdiction over all criminal acts committed by enemy aliens in France as well as crimes against French citizens outside of France. They were to apply French criminal rather than international law. A defendant's claim of Befehlsnotstand could not preclude punishment. At the same time, superiors could be held criminally responsible for the actions of their subordinates. The law applied in France, Algeria, and the French colonies. Shortly after this law went into effect, the provisional government established a special office, the Service de recherche des crimes de guerre ennemis, within the Justice Ministry to carry out pretrial investigations. Its establishment was deemed necessary because the new administration understandably was careful not to entrust the bureaucrats who had served Vichy with the task of investigating the former occupiers. With a staff of 250, including drivers and secretaries, without experienced investigators from the police (which was also undergoing purges), and plagued by bureaucratic infighting, the office lasted only until the fall of 1946 and was anything but a success story.
France's liberation in the summer of 1944 had led to a wave of lynchings and other acts of revenge against many former occupation officials and their collaborators. Moisel points out that the victims numbered about 10,000, showing the need for an orderly trial program. But a January 1945 agreement with the Supreme Headquarters Allied Expeditionary Forces (SHAEF) forced the French government to postpone the beginning of war crimes trials until after the end of the war in Europe. Eager to start such proceedings, French authorities pressed ahead with their investigations, and the first trials were underway shortly after V-E day. Aside from punishing the perpetrators, high-ranking officials such as Foreign Minister Bidault believed that France stood to gain international understanding as these cases would reveal the full extent of the occupiers' crimes. He was mistaken. In April 1947 the International Committee of the Red Cross (ICRC) criticized the pre-trial investigations as execessively long and the actual proceedings as unfair to the defendants. According to Moisel, the question of partisan warfare was the main focus of the early trials. The Germans thought of partisans as bandits and terrorists. The French considered them heroes and patriots. Dominated by former resistance fighters, the military courts naturally held the latter view. A discussion on the controversy surrounding combatants operating outside the traditional rules of war, which might have benefited the defendants, did not take place.
Compared to their Anglo-American counterparts, the French had few prominent Nazis in their custody. One of them was Robert Wagner, the former head of the civilian administration in Alsace. He and seven other defendants faced a military court in 1946. Charged with crimes committed in connection with his Germanization policy and other ruthless measures, the court found Wagner guilty and imposed the death penalty, which was indeed carried out. Aside from demonstrating that French war crimes authorities meant business, the case was significant for another reason. Rejecting Wagner's appeal, the Cour de Cassation recognized the legality of the August 1944 war crimes law and thus the application of ex post facto law in French war crimes trials. Moisel also argues that the case exposed the growing political divisions in postwar France. The communists accused the government of insufficient vigilance with respect to the staffing of the military court and of shutting out the Parti Communiste Francais (PCF). This accusation would be repeated during subsequent proceedings. According to Moisel, the PCF was criticizing French war crimes policy in an effort to rebel against the political leadership claims of the bourgeois parties.
Moisel's book underscores the negative impact of the Cold War and the changes in the Anglo-American policy toward Germany on efforts to bring the Nazi perpetrators to justice. Dependent on the cooperation of its former allies in this area, French war crimes policy suffered a big blow when, in July 1947, General Clay announced his forthcoming extradition stop. The British zone soon followed suit. Intended to prevent the extradition of suspected war criminals to eastern European states, the abrupt change in policy greatly impacted France and "determined at this early stage in the investigations who would have to face [French] justice" (p. 117). For example, in 1950 British officials refused to extradite Kurt Lischka, a former high-ranking security police official, when their French counterparts were unable to provide evidence that Lischka had committed murder. This case exposed not only the harmful effects of the Anglo-American extradition stop, but also the slow progress and tactical errors the French had been making in many of their investigations.
Owing to a lack of resources and qualified personnel, many French cases were indeed developing at a snail's pace. The most prominent was that involving Oradour. On June 10, 1944, members of the Waffen-SS had destroyed the village and murdered over six hundred men, women and children. A number of the SS men at Oradour were Alsatians and hence French citizens. To make possible the prosecution of this and other crimes where prosecutors were unable to prove individual culpability, the French parliament approved a new war crimes law in September 1948. It permitted the government to prosecute all members of an organization declared criminal by the IMT for the war crimes committed by that organization. To escape prosecution, individual defendants had to prove that they had been forced into membership in the group and that they had not participated in the group's crime(s). This reversal of the burden of proof caused controversy and criticism at home and abroad. The new law did not necessarily lead to speedier investigations. The Oradour trial did not start until January 1953, delayed by a difficult search for the perpetrators and a lengthy debate on the appropriateness of trying the German and Alsatian defendants together. The aftermath of the trial revealed the French leadership's desire to heal divisions and restore normalcy. Although the thirteen French defendants received light sentences, they soon became the beneficiaries of an amnesty law demanded by Alsatian politicians and supported by the bourgeois parties.
The establishment of two German states in 1949 led to a new phase with respect to the war criminals issue. The West German elites, who had made no secret of their opposition to the Allied trials in the preceding years, now grew even more assertive and vocal in their criticism. Some, like Justice Minister Dehler, displayed tremendous insensitivity. French parliamentarians, on the other hand, were eager to continue their policy. Officials in the FRG and French governments, however, concluded that the increasing normalization of the relations between the former enemies necessitated ending the trials and discussing the issue of clemency for convicted war criminals. Although pushed by the FRG, the French rejected the establishment of mixed clemency boards for persons imprisoned in France proper.
By the mid-1950s, Moisel argues, "not only in Germany but also in France the signs were pointing in the direction of forgetting" (p. 165). Yet, the past could not be completely ignored. In 1954 the former leaders of the security police, Carl-Albrecht Oberg and Helmut Knochen, stood trial on charges that they had caused the deaths of 80,000 persons. Convicted and sentenced to death, the defendants received executive clemency twice. In 1955 French President Rene Coty commuted their death sentences to life. Seven years later, De Gaulle ordered their release from prison shortly before the signing of the Franco-German treaty of friendship. The Oberg trial's significance ultimately transcends the fate of the defendants. Moisel considers it instrumental in the shaping of a myth in the FRG, namely that the Wehrmacht had run a clean, conventional occupation whereas Himmler's henchmen alone were responsible for the crimes committed by the occupiers.
Despite Franco-German reconciliation, the war crimes issue remained an irritant in the relationship between the two countries for some time. In the mid-1960s, the French people and political establishment strongly opposed plans by the Erhard government to apply the German penal code's statute of limitations governing murder to homicides committed during the Nazi era. Intense criticism from abroad, including France, strengthened the position of those in the Bundestag who wanted to ensure that the Third Reich's murderous activities could be prosecuted in the future. In March 1965, the FRG's parliament decided to postpone the start of the statute by five years. However, while genocide and crimes against humanity had been added to the German criminal code in the mid-1950s, the lawmakers refused to make them retroactive and apply them to Nazi crimes. The French parliament proved to be more resolute and innovative. In December 1964, the National Assembly unanimously passed a law recognizing that crimes against humanity were special offenses demanding new legal concepts. Such crimes could be prosecuted ex post facto, and they would not be subject to a statute of limitation.
The war criminals question remained difficult throughout the 1960s. Many of the former German occupiers sought by France were now living in the FRG whose Basic Law prohibited the extradition of its citizens. Furthermore, West German officials conducted investigations only reluctantly, in part due to their conviction that the occupation of western countries had been legal and correct. As a result, the German case against the division, regimental, and company commanders responsible for the Oradour massacre did not progress to the trial stage. But attempts to bring the perpetrators to justice were also hampered by the contractual agreements signed by the Allies and the Adenauer government in 1955. These prohibited investigations and prosecutions by West German authorities of individuals already convicted as war criminals in Allied courts. Since French military courts had convicted 1,314 defendants in absentia, France and the FRG needed to find a solution to enable West German courts to prosecute. The Cologne prosecutor's investigation of those responsible for the deportations of Jews from France finally forced the issue. After difficult negotiations and considerable resistance from Bundestag opponents of war crimes trials, a 1975 supplemental agreement gave West German courts jurisdiction over persons already convicted in absentia by French military courts. The trial of Kurt Lischka, who was sentenced to ten years for his role in the deportations, was the one and only proceeding to be conducted under the new agreement.
Moisel, who studied under Norbert Frei, has produced a fine book here. Like her Doktorvater, Moisel has a particular interest in Vergangenheitspolitik, and she could not have chosen a more appropriate topic. Her research is imposing, and her detailed examination of French and German priorities is convincing. Moisel tends to be more critical of the German emphasis during the 1950s on forgetting the past at all cost. But she also considers the French politics of the past, which placed the suffering of the resistance over that of the Jews and subjugated the interests of justice to the desire for normal relations with the German neighbor, problematic. She concludes that the 1960s, the decade that brought irreversible social and political changes throughout Europe, provoked a renewed interest in the recent past and an awareness of the "dimensions of the genocide of the Jews" (p. 241). This change in attitudes brought tangible results in the following years. But in the end this book will leave readers with knowledge of the British and American war crimes programs with an all too familiar feeling, that justice was incomplete.
If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-german.
Citation:
Frank Buscher. Review of Moisel, Claudia, Frankreich und die deutschen Kriegsverbrecher: Politik und Praxis der Strafverfolgung nach dem Zweiten Weltkrieg.
H-German, H-Net Reviews.
October, 2004.
URL: http://www.h-net.org/reviews/showrev.php?id=9890
Copyright © 2004 by H-Net, all rights reserved. H-Net permits the redistribution and reprinting of this work for nonprofit, educational purposes, with full and accurate attribution to the author, web location, date of publication, originating list, and H-Net: Humanities & Social Sciences Online. For any other proposed use, contact the Reviews editorial staff at hbooks@mail.h-net.org.