The Nuremberg Paradox - Washington University in … · LEILA NADYA SADAT* The Nuremberg Paradox The United States is generally proud of its leadership role at the Nuremberg trials,

LEILA NADYA SADAT*

The Nuremberg Paradox

The United States is generally proud of its leadership role at theNuremberg trials, making America's current rejection of the precedentthey established seem paradoxical. This Article approaches the "Nu-remberg Paradox" by examining the French experience with theNuremberg trials, and comparing France's adoption and internaliza-tion of international criminal law to that of its American cousin. TheArticle concludes that an important reason that the Nuremberg prin-ciples never took root in the United States stems from the differentlegal cultures and traditions of the two countries, particularly as re-gards the field of international criminal law. Examining the inter-war, post war and modern application of international criminal lawin France and the United States, one is struck by the long-standinglegal, philosophical and political differences exhibited by the twocountries' approaches, and perhaps most starkly, by the differencesthat appeared during the negotiation, adoption, and ratification of theInternational Criminal Court Statute in 1998. Indeed, although theFrench Parliament was willing to ratify the ICC Statute and at thesame time adopt a constitutional amendment abrogating the immuni-ties and future amnesties granted to its own members and thePresident of the French Republic, U.S. opposition to the treaty hasbeen consistent and, at times, overwhelming. In exploring these differ-ences, the Article surveys the interwar scholarship, the post-WorldWar 11 prosecutions of Vichy collaborators and former Nazis in theTouvier, Barbie, and Papon cases, and France's more recent exercisesof universal jurisdiction in the modern period of international crimi-

* Henry H. Oberschelp Professor; Director, Whitney R. Harris World Law Insti-tute, Washington University School of Law. Thanks to the participants in the FourthAnnual Comparative Law Works in Progress Workshop at Princeton University-Program for Law and Public Affairs, the Notre Dame School of Law Faculty Collo-quium, and the Whitney R. Harris World Law Institute Public International LawTheory Workshop and the Washington University Faculty Colloquium for helpful sug-gestions. A special thanks to M. le Pr6sident Bernard Ducamin for his extraordinaryassistance in obtaining primary source materials and interviews, and to ProfessorsKenneth Anderson, Xaiver Blanc-Jouvan, Elizabeth Borgwardt, Richard Hyland,Pauline Kim, David Koenig, Mattias Kumm, Mark Janis, Mathias Reimann, Jacque-line Ross, Kim Scheppele, Margo Schlanger, Melissa Waters, and Elisabeth Zoller fortheir helpful comments and advice. Finally, many thanks to Amitis Khojasteh, M.Imad Khan, Jessica Malloy, Sonja Schiller, and Margaret Wichmann for excellent re-search assistance, to Ms. Sherrie Malone and Beverly Owens for secretarial supportand to Dean Kent Syverud for graciously and generously supporting this project.

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nal law. The implications of the French experience are analyzed inlight of Harold Koh's transnational legal process theory, which cap-tures the process by which France internalized the Nurembergprinciples, but does not explain why that process took hold in Francebut not in the United States. The Article's central claim is that deeperhistorical, cultural and social factors that influenced French legal cul-ture explain the differences between the two countries approaches.Indeed, an examination of the French precedent illuminates our un-derstanding of how and why international criminal law remains onlysuperficially and sporadically enforceable in the United States.

I. INTRODUCTION

The United States of America is generally proud of its leadershipin the trial of the major German leaders at the end of World War II atNuremberg. 1 Indeed, the key role played by Justice Robert Jackson,in particular, has become part of America's national mythology, prov-ing its moral superiority, commitment to the rule of law, andwillingness to rely upon principles of law and justice, instead of justpower, in assuming the mantle of world leadership. 2 While there wascriticism of the trials in the United States, 3 once the decision wasmade to hold trials rather than executions, Nuremberg became an"American show":

Although the cooperation of other nations was genuine andsincere, there is ample proof to show that Nuremberg was a100 percent American concern. It was American initiative,

1. Indeed, following the trial, Walter Lippman enthused:For my own part, I do not think it rash to prophesy that the principles of thistrial will come to be regarded as ranking with the Magna Charta, the habeascorpus and the Bill of Rights as landmarks in the development of law. TheNuremberg principle goes deeper into the problem of peace, and its effectmay prove to be more far-reaching than anything else that has yet beenagreed to by the peoples of the world.

Walter Lippman, The Meaning of the Nuremberg Trial, 63 LADIES HOME JOURNAL,June 1946, at 32, cited in ELIZABETH BORGWARDT, A NEW DEAL FOR THE WORLD:AMERICA'S VISION FOR HUMAN RIGHTS 237 (2005). See also TELFORD TAYLOR, THEANATOMY OF THE NUREMBERG TRIALS (1992); Christopher J. Dodd, Nuremberg: Past,Present and Future, 6 WASH. UNWV. GLOBAL STUDIES L. REV. 645 (2007).

2. WHITNEY R. HARRIS, TYRANNY ON TRIAL 496, 567-70 (1999). The trials wereevoked with pride in speeches by U.S. presidents including George H.W. Bush; see,e.g., Craig R. Whitney, Mideast Tensions: Cheney Says Forces in Gulf are 'in for longhaul', N.Y. TIMES, Oct. 16, 1990 (evoking need to try Saddam Hussein), and by Su-preme Court Justices, including Sandra Day O'Connor (remarks at the dedication ofthe Statute of Associate Justice Robert H. Jackson, Aug. 14, 1996, available at http://www.roberthjackson.org/Man/theman2-6-9/) and William H. Rehnquist (remarks atthe American Law Institute Annual Meeting, May 17, 2004, available at http'/!www.supremcourtus.gov/publicinfospeeches/sp_05-17-04a.html).

3. HARRIS, supra note 2, at 7-8; BORGWARDT, supra note 1, at 204-12 (2005).

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American persistence, and American idealism that producedthe final result in the face of serious difficulties."4

The drama playing out in the bombed ruins of the city of Nuremberghad its echos in San Francisco, where the Charter of the United Na-tions was elaborated, this time on American soil, and again, withAmerican ideas predominating the conversation. It was a heady time,and to many, the Nuremberg trials seemed to lay the foundation for anew post-war world order that would be based upon the rule of lawand led by the United States of America. As The New Yorker editori-alized on September 15, 1945, "[the] Nuremberg trials . . . areexciting because they are the unconscious expression of the universaldesire for a broader legal structure, and hence for a higher socialstructure."5

Against this historical framework, America's current approach tothe Nuremberg principles appears paradoxical. American "owner-ship" of the Nuremberg legacy has resulted in only tepid support forthe Nuremberg principles by successive U.S. administrations, partic-ularly as regards U.S. conduct. (Indeed, the London Charterestablishing the Nuremberg Tribunal was signed on August 8, 1945,just two days after the United States dropped an atomic bomb on Hi-roshima and one day before another atomic bomb devastatedNagasaki. )6 These principles, as articulated by the Judgment of theInternational Criminal Tribunal at Nuremberg, and subsequentlycodified by the United Nations, state that international law maycriminalize war crimes, crimes against humanity and crimes againstpeace, and enforce them against persons using an international tri-bunal to do so; that no individual may commit these crimes withimpunity, not even a head of State and; that neither municipal lawnor following orders exonerates an individual charged with thesecrimes from criminal responsibility for them (although the latter maybe used to mitigate punishment).7

4. Ernest 0. Hauser, The Backstage Battle at Nuremberg, SATURDAY EVENINGPOST, Jan. 19, 1946, at 18, 138, cited in BORGWARDT, supra note 1, at 233.

5. The Talk of the Town, THE NEW YORKER, Sept. 15, 1945, at 17. Later in thesame article, however, the editors judged this goal unattainable given that the newUnited Nations Organization has "the authority of a yellow butterfly in a high wind."Id., at 18. For thoughtful assessments of Nuremberg's promise and disappointments,see Christian Tomuschat, The Legacy of Nuremberg, 4 J. INT'L CRIM. J. 830 (2006);Christoph Burchard, The Nuremberg Trial and its Impact on Germany, 4 J. INT'LCRIM. J. 800 (2006); Symposium, Judgment at Nuremberg, 6 WASH. UNIV. GLOBALSTU. L. REV. 483-771 (2007).

6. The Agreement for the Prosecution and Punishment of Major War Criminalsof the European Axis, August 8, 1945, [hereinafter London Agreement]; Charter ofthe International Military Tribunal, 82 U.N.T.S. 279 [hereinafter IMT Charter].

7. The seven Nuremberg principles can be found in a 1946 Resolution by theUnited Nations General Assembly, 1 U.N. GAOR (Part II) at 188, U.N. Doc. A/61/Add.1 (1946). See also Report of the International Law Commission to the GeneralAssembly, 4 U.N. GAOR Supp. No. 10, at 1, U.N. Doc. A/925 (1949).

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Much has been written about Nuremberg and Vietnam, and thisArticle will not examine that epoch in U.S. history. Others, includingmyself, have also noted recent infelicitous departures from the Nu-remberg principles in the conduct of the so-called "Global War onTerror,"8 again a subject not taken up here. America's rejection of theNuremberg precedent has been starkest in its sometimes bruising op-position to the International Criminal Court, an opposition that hasbaffled American allies as well as many U.S. citizens alike.

This Article approaches the "Nuremberg paradox," as I call it,through a different lens, looking not to U.S. practice to identify whyAmerica never embraced the Nuremberg principles after 1946, but,sacre bleu (!), to France. In spite of spats over "freedom fries" andgenuine differences regarding foreign policy, particularly as regardsthe projection of American power, the French Republic and theUnited States of America have many things in common making sucha project useful and instructive-an abiding commitment to humanrights and the rule of law, a sense of moral superiority, chauvinismabout their language and culture, and a belief in their own impor-tance as civilizing influences. 9 Indeed, in understanding how andwhy France came to ratify the ICC Treaty with relative ease, we areled to interesting insights as regards the legal obstacles to the ICC'sratification in the United States.

This study suggests that at least one reason that the Nurembergprinciples never took root in American soil lies in the different legalcultures and traditions of the two countries, particularly as regardsthe field of international criminal law. To put it neatly, French judgesseem to have been able to incorporate the Nuremberg principles as amatter of French municipal law in a way that their American coun-terparts never did. In America, ironically, a nation of lawyers, theNuremberg principles remain non-justiciable, surviving largely as asymbol of power politics. In France, the Nuremberg principles are,instead, a matter of law. The question of course, which this Articleendeavors to answer, is why.10

8. Leila Nadya Sadat, Shattering the Nuremberg Consensus: U. S. Rendition Pol-icy and International Criminal Law, 3 YALE J. INT'L. AFF. 65 (2008); See also M.Cherif Bassiouni, The Institutionalization of Torture under the Bush Administration& the Responsibility Officials, in I INTERNATIONAL CRIMINAL LAW ch. 5 (M. CherifBas-siouni, ed., 3d ed. 2008); JORDAN J. PAUST, BEYOND THE LAW (2007); PHILIPPE SANDS,

TORTURE TEAM (2008).9. For an earlier comparison of France and the United States in the context of

language regulation, see Leila Sadat Wexler, Official English, Nationalism and Lin-guistic Terror: A French Lesson, 71 WASH. L. REV. 285 (1996).

10. This Article will focus on developing the French legal history, with referencesto the United States as useful and appropriate. Space constraints prohibit a full ex-amination of both countries' law and history, which is the subject of a forthcomingbook.

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On July 17, 1998, the Treaty Establishing the InternationalCriminal Court was adopted in Rome with great fanfare. 1 On June9, 2000, The French Republic became the twelfth State to ratify thetreaty. Although there was little doubt that France would join theCourt, its support had not been a foregone conclusion during theTreaty's negotiation. France, like the United States, had concernsabout the possible constraints the treaty might impose on Frenchmilitary operations, and although the French government had ac-tively participated in the negotiations, it joined the coalition of theStates supporting the ICC's establishment (the "Like Minded" group)late and reluctantly. 12 Even after the French government signed onto the treaty the French Constitutional Council (Conseil Constitution-nel) held, on January 22, 1999, that the Statute's ratificationrequired prior amendment of the French Constitution because theRome Statute impinged upon Presidential and other immunities andthe possibility of French amnesty laws. 13

The response to the Constitutional Council's decision by theFrench government was straightforward: France amended its Consti-tution to permit ratification, abolishing Presidential and otherimmunities (among other things) in order to do so.' 4 Parliamentarydebates concerning both the ratification of the Treaty and the amend-ment of France's Constitution were entirely supportive, evenpassionate, about the need for the French government to put asidenarrow concerns of self-interest, and support the International Crim-inal Court-in the interest of France, and all humanity. Failure toratify the treaty was never a serious option among members of theExecutive and Legislative branches, and although France, like othermajor powers, had its own foreign policy preoccupations to addressduring the Treaty's negotiation, including protecting its military per-sonnel, once the Treaty had been adopted, French ratification wascompleted without controversy or particular fanfare.' 5

11. Leila Nadya Sadat, The New International Criminal Court: An UneasyRevolution, 88 GEO. L.J. 381 (2001) (with S. Richard Carden).

12. On the so-called "like minded" group of States, see LEILA NADYA SADAT, THEINTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW:JUSTICE FOR THE NEW MILLENNIUM 7 (2002). See also Phillipe Kirsch & John T.Holmes, The Rome Conference on an International Criminal Court: The NegotiatingProcess, 93 AM. J. INT'L L. 2, 4 (1999). Some writers have suggested that civil societyplayed an important role in shaping French policy, which may be true, and yet it doesnot explain why civil society failed to promote support for the Court in the UnitedStates.

13. Conseil Constitutionnel decision no. 98-408DC, January 22, 1999, J.O. 1317.14. Loi constitutionnelle no. 99-568 du 8 juillet 1999 insrant, au titre VI de la

Constitution, un article 53-2 et relative A la Cour penal internationale. Article 53-2provides that: "The Republic may recognize the jurisdiction of the International Crim-inal Court under the conditions contained in the treaty signed on July 18, 1998."

15. France opted out of the war crimes jurisdiction of the Court for seven years (asthe United States could have done), a decision it subsequently revoked. United Na-tions, Rome Statute of the International Criminal Court: France Ratification, June 21,

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Contrast the mood in Washington during the same time period.Even prior to the Treaty's conclusion, the late Senator Jesse Helms,Chair of the Senate Foreign Relations Committee (the committeethat would ultimately take up the Statute's ratification), announcedthat the International Criminal Court would be "dead on arrival" ifthe United States did not have veto power over which cases could bebrought. 16 Government officials expressed concern over the prospectof an international war crimes court that might investigate the activ-ities of U.S. soldiers, but, unlike their French counterparts, wereunwilling to be persuaded that adequate safeguards could ever be putinto place that could protect U.S. (and their own) interests. 17 The Ex-ecutive Branch, under President Bill Clinton, expressed support for aCourt in vague and general terms, but never in an unqualified man-ner.18 Indeed, the posture of the U.S. negotiating team at the start ofthe Conference was defensive, and only hardened as the DiplomaticConference progressed. This led to a battle of wills between theUnited States and other nations and finally a humiliating diplomaticAmerican defeat as the Treaty was adopted, over U.S. objections, by

2000, available at http://treaties.un.org/doc/Treaties/1998/11/19981110%2006-38%20RPM/Related%2ODocuments/CN.404.2000-Eng.pdf; United Nations, Rome Statute ofthe International Criminal Court: France Withdrawal of Declaration, Aug. 20, 2008,available at http://treaties.un.org/doc/Publication/CN/2008/CN.592.2008-Eng.pdf. Ar-ticle 124 permits a State to provide that it will not accept the Court's jurisdiction overwar crimes for a seven year period, when a crime is alleged to have been committed byits nationals or on its territory. Rome Statute of the International Criminal Court,art. 124, July 17, 1998, 2187 U.N.T.S. 90. France was one of only two countries toinvoke article 124 in ratifying the Statute, and was heavily criticized internationallyand internally (especially by many Parliamentarians) for doing so. DOMINIC McGOLD-RICK, PETER J. ROWE, & ERIC DONNELLY, THE PERMANENT INTERNATIONAL CRIMINALCOURT: LEGAL POLICY IssuEs, 372-73 (2004). In September 2008 France withdrew itsreservation under article 124 (which would have expired on July 1, 2009 in anyevent), perhaps to signal its support for the Court or perhaps to demonstrate thatFrance would not seek to extend Article 124 (which was labeled a "transitional provi-sion" in the Statute) at the Review Conference in 2010. International Law Reporter,ICC: Withdrawal of French Declaration to Rome Statute, Sept. 24, 2008, available atwww.ilreports.blogspot.com/2008/09/icc-withdrawal-of-french-declaration-to.html.Because the United States could have ratified the Statute and invoked article 124, thefact that France did so does not tell us much about the difference between the twocountries approaches to the Court.

16. Barbara Crossette, Helms Vows to Make War on U.N. Court, N.Y. TIMES, Mar.27, 1998, at A9. Helms Declares U.N. Criminal Court "Dead-on-Arrival" in Senatewithout U.S. Veto, Cong. Press Releases, Mar. 26, 1998.

17. Marc Grossman, Under Secretary for Political Affairs, Remarks to the Centerfor Strategic and International Studies, Washington, D.C. (May 6, 2002) (preparedremarks available at http://www.state.gov.p/us/rm/9949.htm). Secretary Grossmanpromised that: Notwithstanding our disagreements with the Rome Treaty, the UnitedStates respects the decision of those nations who have chosen to join the ICC; but theyin turn must respect our decision not to join the ICC or place our citizens under thejurisdiction of the court.

18. Http://www.state.gov/www/global/swci/00123 1_clintonicc.html. Statement onthe Rome Treaty on the International Criminal Court, Dec. 31, 2000, 37(1) WeeklyCompilation of Presidential Documents 4 (2001).

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an overwhelming vote of 120-7.19 Returning to Washington to facethe Senate Foreign Relations Committee, the U.S. head of delegation,then Ambassador at Large for War Crimes, David J. Scheffer, waspeppered with questions concerning the treaty and its import for U.S.foreign policy. Few members of the Senate expressed support for theCourt,20 and although President Clinton ultimately signed the RomeStatute on December 31, 2000, it was subsequently "unsigned" by hissuccessor, George W. Bush.2 1 President Bush abandoned theClintonian approach of cautious (even if unsupportive) engagementwith the Court in favor of a policy of outright hostility. So adamantwas the Bush administration in its criticism of and disdain for theCourt that countries supporting the Court found themselves on thereceiving end of punishing treatment from the U.S. government. 22

What was it in French history that permitted a Parliament tosupport a treaty and to adopt a constitutional amendment abrogatingthe immunities and future amnesties granted to its own membersand even the President of the Republic? How is it that France-a nu-clear power with an active international military presence 23 -came

19. Sadat, supra note 11, at 384. Bartram S. Brown, U.S. Objections to the Statuteof the International Criminal Court: A Brief Response, 31 N.Y.U.J. INT'L L. & POL. 855(1999).

20. Is a U.N. International Criminal court in the US National Interest?: (Hearing# 105-724 before the Subcommittee on International Operations of the Committee onForeign Relations), 105th Senate (July 23, 1998). Patricia McNerney, The Interna-tional Criminal Court: Issues for Consideration by the United States Senate, 64 LAW &CONTEMP. PROBS. 181, 191 & n.19 (2001); Brown, supra note 19, at 858 n.16, 862 n.28.

21. Letter from John Bolton, under Secretary of State for Arms Control and Inter-national Security, to UN Secretary Kofi Annan (released May 6, 2002), available athttp://www.state.gov/r/pa/prs/ps/2002/9968.htm; see also Jim Garamone, U.S. With-draws from International Criminal Court Treaty, AM. FORCES PRESS SERVICE, May 7,2003, available at http://www.defenselink.mil/news/May2002/n05072002_200205071.html; see also Leila Nadya Sadat, Summer in Rome, Spring in the Hague, Winter inWashington? U.S. Policy Towards the International Criminal Court, 21 Wisc. INT'LL.J. 557 (2003); National Security Council, The National Security Strategy of theUnited States of America 31 (Sept. 15, 2002); Kenneth Roth, Exec. Dir. Human RightsWatch, Human Rights, American Wrongs, THE FIN. TIMES, July 1, 2002, available athttp://hrw.org/english/docs/2002/07/01/usint12891.htm.

22. The Bush administration softened its opposition to the Court in its secondterm, see, e.g., Speech by Secretary of State Condoleezza Rice, San Juan, Puerto Rico,Mar. 10, 2006, available at http://www.state.gov/secretary/rn/2006/63001/htm. TheUnited States abstained from the Security Council Resolution referring the situationin Darfur to the ICC, http://www.un.org/News/Press/docs/2005/sc8351.doc.htm, andhas been supportive of the Prosecutor's decision to indict Sudan's President. However,recent speeches by legal advisor John Bellinger continue to maintain U.S. objectionsto the Court, raising many of the same arguments proferred by Bolton during Presi-dent Bush's first term.

23. While the U.S. military budget dwarfs the rest of the world, France has thesecond largest budget for the fiscal year 2009. U.S. Department of Defense, News Re-lease: Fiscal 2009 Department of Defense Budget Released, Feb. 4, 2008, available athttp://www.defenselink.mil/comptroller/defbudget/fy2009/2009_BudgetRolloutRe-lease.pdf; Center for Strategic and International Studies, European Defense SpendingOutlook, 2009 (Jan. 1, 2009), available at http://www.csis.org/media/csis/pubs/090121_european defense_spending.pdf. Likewise, the French armed forces number

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to see ratification of the International Criminal Court (ICC) treaty asso important? Why has the French experience with the ICC Treatyand its ratification been so different than the U.S. experience, partic-ularly given the U.S. support for and continued evocation of theNuremberg trials as a watershed event in world history, and an eventin which the United States played the leading role?

The answer to this question is complex, and much could be madeof the fact that France, unlike the United States, is now bound up ina supranational regional organization (the European Union) andtherefore better adapted to international treaty regimes that requiremajor constitutional and psychological change. Yet that alone doesnot explain the French perspective, and France has a long history ofeuroscepticism suggesting that it is perfectly capable of rejecting in-ternational cooperation when it feels threatened. DeGaulle's "emptychair" policy, 24 the extraordinarily narrow support for the Treaty onEuropean Union,25 and the recent rejection of the European Consti-tution by French voters2 6 suggest that support for international ormultinational organizations in France is neither to be always as-sumed, nor consistently forthcoming.

Instead, the central claim of this Article is that the answer tothis question lies, at least in part, in French legal culture. This cul-ture is very different from our own, in spite of the manycharacteristics France and the United States share. More particu-larly, the answer lies in the legal norms (and culture) concerning theincorporation of international norms-particularly treaties-by theirrespective domestic legal systems. As Emmanuelle Jouannet recently

259,000 regulars and 419,000 reserves, which is the largest in Europe. France BoostsSpending on Military; Program Reflects Intent to Conduct Activist Policies Worldwide,WASHINGTON POST, Oct. 30, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/10/29/AR2008102902589.html.

24. Through his "empty chair policy," de Gaulle and his ministers boycotted meet-ings of the European Council to protest objectionable proposals. See VISIONS, VOTES,& VETOES: THE EMPTY CHAIR CRISIS AND THE LUXEMBOURG COMPROMISE FORTY YEARSON (Jean Marie Palayret, Helen Wallace & Pascaline Winand eds., 2006) and BrigidLaffan & Soni Mazey, European Integration: the European Union -reaching an equi-librium?, EUROPEAN UNION: POWER AND POLICY-MAKING 39-40 (Jeremy JohnRichardson ed., Routledge 2005); see also P.J.G. KAPTEYN & P. VERLOREN VANTHEMAAT, INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES 247-51 (Lau-rence W. Gormley ed., 2d ed. 1989).

25. French voters ratified the Treaty of Maastricht on the European Union by amargin of just over fifty-one % in favor. Catherine Goybet, Le Oui e Maastricht... etaprs?, REVUE DU MARCHA COMMUN ET DE L'UNION EUROPAENNE, Sept.-Oct. 1992 at681 (discussing France's tepid support of the European Union). Jean-MarieColombani Piges d'une Victoire, LE MONDE, Sept. 22, 1992 ("ni franc ni massif le<<oui>> modeste").

26. Following nine Member States' approval, France was the first member coun-try to reject the European Constitution, which would take effect only with unanimoussupport. Katrin Bennhold, France Rejects E. U. Constitution, INT'L HERALD TRIB., May29, 2005, available at http://www.iht.com/articles/2005/05/29/europe/web.0529france.php.

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wrote in her excellent study of French and American perspectives oninternational law, "there does not exist any global or cosmopolitanvision of international law, but, on the contrary, an inevitable multi-plicity of particular national, regional, individual, and institutionalvisions. '27 Each country develops its own approach to internationallaw because of the singularities of its legal culture and its legal tradi-tions-a culture shaped by its history, sociology and place in theworld.28 France and the United States have developed legal systemsstemming from their particular experiences 29-France influenced bythe Roman law tradition, the French Revolution, and the NapoleonicCode;30 the United States by the common law received from En-gland 3 '-and by the accidents of history that have led (or not) to theacceptance of particular norms and the development of constitutionalstructures.

3 2

With respect to the Nuremberg principles, there was, unlike theAmerican experience, a long and respected tradition embraced byFrench academics and politicians supporting not only the interna-tional criminal trials after World War I and World War II aspotentially applicable to the Germans, but as the building blocks forthe establishment of a permanent system of international justice.The writings of prominent academics were particularly important ina system of law that treats those writings (la doctrine) as highly in-fluential and as potential sources of law-much more so than in theUnited States. 33 The influence of these writings can be felt in the

27. Emmanuelle Jouannet, French and American Perspectives on InternationalLaw: Legal Cultures and International Law, 58 MAINE L. REV. 292, 292 (2006).

28. On legal traditions generally, see H. PATRICK GLENN, LEGAL TRADITIONS OFTHE WORLD: SUSTAINABLE DIVERSITY IN LAW 32-36 (2000). As to the discipline of inter-national law in the United States, see MARK W. JANIS, THE AMERICAN TRADITION OFINTERNATIONAL LAW: GREAT EXPECTATIONS 1789-1914 (2004).

29. In the case of France and the United States, Jouannet argues that the domi-nant model of French legal culture is "legalistic, positivist, and formal," whereas theU.S. model is "judicial, realist, and pragmatic." Jouannet, supra note 27, at 299.These models are probably correct, but are somewhat unhelpful to the current project.Indeed, the fact that the French courts were so instrumental in incorporating crimesagainst humanity into French law challenges the traditional notion of civil law courtsas restricted to passively applying legislative enactments.

30. For a description of the French legal system and its origins see, e.g., JOHNBELL, SOPHIE BOYRON & SIMON WHITTAKER, PRINCIPLES OF FRENCH LAW 1-9 (1998);JOHN P. DAWSON, THE ORACLES OF LAW (1963); REN i DAVID & JOHN C. BRIERLEY,MAJOR LEGAL SYSTEMS IN THE WORLD TODAY (2d ed., 1978); ANDREW WEST ET AL., THE

FRENCH LEGAL SYSTEM 1-42 (1992).31. AKMAL' KHOLMATOVICH. SAIDOV, COMPARATIVE LAW 242-46, 247 (W.E. Butler

trans., 2000).32. GLENN, supra note 28, at 5.33. WALTER CAIRN & ROBERT McKEON, INTRODUCTION TO FRENCH LAW 19-20

(1995); BELL,ET AL., supra note 30, at 34-36. As Bell notes, it is probably wise not tooverstate either the influence of academics and their writings (la doctrine) or exagger-ate the differences between the common law world and France. Yet subtle differencesdo and can exist, which may cumulate in larger trends. See also CHRISTIAN DADOMO &SUSAN FARRAN, THE FRENCH LEGAL SYSTEM 42-44 (1993) (suggesting that la doctrine,

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address of Chief Prosecutor Francois de Menthon to the InternationalMilitary Tribunal at Nuremberg, given at the opening of the Frenchcase against the Nazis on January 17, 1946:

We believe that there can be no lasting peace and no certainprogress for humanity, which still today is torn asunder, suf-fering and anguished, except through the cooperation of allpeoples and through the progressive establishment of a re-ally international society. 34

None of the other allied powers at Nuremberg so clearly and force-fully argued on behalf of a long-lasting and broad application of theNuremberg principles; indeed, it seems fairly clear that even thechief advocate of the Nuremberg trials for the United States, JusticeRobert Jackson, did not argue the case against Nazis, trying to con-vincing his audience of the need for a permanent international warcrimes tribunal. Rather, for the most part he remained within thecontext of the guilt (or innocence) of the accused. 35

Moreover, as Part II explains, France, unlike the United States,was occupied by the Germans during the war, and had therefore, inreaction, incorporated the Nuremberg charter into French law as apotential basis for future prosecutions. As Gary Bass has written, itmay be that a nation is more likely to embrace war crimes trials if itsown nationals were victimized during the conflict.36 Yet it was stillsurprising when, many years after the war, France held crimesagainst humanity trials in the cases of Paul Touvier, Klaus Barbie,and Maurice Papon. Each of these trials permitted French society tosee the Nuremberg principles not just as precepts of internationallaw applicable as a matter of "victor's justice" (to Germans) but asprinciples of law directly applicable even to Frenchmen for crimescommitted on French soil. The jurisprudence from those cases is rich,and I have written about it extensively elsewhere. What those casesunderscore is that France's monist approach to international law fa-cilitated the incorporation of the Nuremberg charter by French

defined as 'the body of opinions on legal matters expressed in books and articles, ishighly influential in France, even if not a formal source of law due not only to historicreasons but the anonymity of judges and other factors rendering commentators influ-ential and a source of inspiration in the shaping of French law).

34. M. Frangois de Menthon, Chief Prosecutor for the French Republic, OpeningStatement to the International Military Tribunal at Nuremberg, January 17, 1946,reprinted in THE TRIAL OF GERMAN MAJOR WAR CRIMINALS BY THE INTERNATIONALMILITARY TRIBUNAL SITTING AT NUREMBERG, GERMANY: OPENING SPEECHES OF THECHIEF PROSECUTORS 90 (1946).

35. See, e.g., Opening Statement for the United States of America by Robert H.Jackson, Chief of Counsel for the United States, in THE NORNBERG CASE passim(1971).

36. Victimization is one of several themes Bass analyzed to outline the circum-stances under which states support international war crimes tribunals. Gary BASS,STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIALS 30-31 (2000).

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courts37 in a way that is difficult to imagine in the United States,particularly in a post-Medellin world.38

Following these trials, France adopted new laws codifying crimesagainst humanity, war crimes, and genocide provisions.39 Part IIIbriefly explores the French Experience with these new laws as a com-ponent of a new system of international and transnational criminaljustice that began in the 1990s with the establishment of the two adhoc Tribunals for the Former Yugoslavia and Rwanda, and whichwas accompanied by a general, perceptible international shift awayfrom impunity for the commission of international crimes towards aregime of accountability therefore.40 Indeed, requiring accountabilityfor past crimes has been posited as a remedy to impunity, as well as anecessary, if not sufficient, predicate for the re-establishment ofpeace. 41 Accordingly, the establishment of the International CriminalTribunals for Rwanda (ICTR) and the Former Yugoslavia (ICTY), theSpecial Court for Sierra Leone (SCSL), the Special War CrimesPanels for East Timor and, more recently, the Khmer Rouge Tribunalin Cambodia, was conceived of by the international community as ameans (although not the means) to reestablish peace and stability,

37. See Leila Sadat, The Interpretation of the Nuremberg Principles by the FrenchCourt of Cassation: From Touvier to Barbie and Back Again, 32 COLUM. J. TRANSNAT'LL. 289, 317-18 (1994) (formerly Wexler).

38. Indeed, the Medellin decision appears to set aside the language of theSupremacy Clause itself that "Treaties . . . shall be the supreme Law of the Land,"replacing it with confusing and restricting notions of self-executing and non-self-executing treaties unlikely to advance the participation of the United States (and U.S.courts) in a global political system. Medell?n v. Texas, 552 U.S. -, 128 S. Ct. 1346(2008). For a brief analysis of Medellin, see Luke A. McLaurin, Medellin v. Texas andthe Doctrine of Non-self-executing Treaties, 20 MICH. INT'L L. 1 (2008). For a thought-ful critique of Medellin, see Carlos Manuel Vazquez, Treaties as Law of the Land: TheSupremacy Clause and the Judicial Enforcement of Treaties, 122 HARv. L. REV. 599(2008).

39. See infra Part III.40. Subsequent to the atrocities of World War II and the relative success of the

Nuremberg trials, demand for accountability of human rights violations surged. For adiscussion of the evolution of international criminal law away from a regime of impu-nity and towards increased accountability through criminal prosecution, see, e.g.,Leila Nadya Sadat, Exile, Amnesty, and International Law, 81 NOTRE DAME L. REV.955 (2006); M. Cherif Bassiouni, The Normative Framework of International Humani-tarian Law: Overlaps, Gaps and Ambiguities, 8 TRANSNAT'L L. & CONTEMP. PROBS.199, 203 (1998); Payam Akhavan, Justice in the Hague, Peace in the Former Yugosla-via?: A Commentary on the United Nations War Crimes Tribunal, 20 HUM. RTS. Q.737, 746 (1998).

41. See Akhavan, supra note 40; Bassiouni, supra note 40, Antonio Cassese, Onthe Current Trends Towards Criminal Prosecution and Punishment of Breaches ofInternational Humanitarian Law, 9 EUR. J. INT'L L. 3-4 (1998); Mark J. Osiel, WhyProsecute? Critics of Punishment for Mass Atrocity, 22 HUM. RTS. Q. 133 (2000); Car-los S. Nino, The Duty to Punish Past Abuses of Human Rights Put Into Context: TheCase of Argentina, 100 YALE L.J. 2619 (1991); Diane F. Orentlicher, Settling Accounts:The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L. J.2546 (1991); Naomi Roht-Arriaza, State Responsibility to Investigate and ProsecuteGrave Human Rights Violations in International Law, 78 CAL. L. REV. 451 (1990). Seealso CARLOS SANTIAGO NINO, RADICAL EVIL ON TRIAL (1996).

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foster a transition to democratic principles of government, and estab-lish general principles of international law to deter future atrocities.The negotiation and establishment of the ICC treaty in 1998 drewheavily from this emerging practice, and seemed to offer the impri-matur of permanence to a then-experimental concept.42 Interestingly,the United States has been a leading proponent of the creation of adhoc Tribunals,43 reserving its objections to international criminal jus-tice mechanisms for the permanent international criminal court.44

The final section of this Article (Part V), considers the implica-tions of the French experience in light of more theoretical questionsregarding the relationship between international and domesticnorms. Many scholars have studied the incorporation-either as amatter of law or as a question of foreign relations-of internationalnorms by municipal legal orders, noting the existence of transna-tional legal processes that lead courts, especially, to adoptinternational norms.45 The French experience with the Nurembergprinciples provides an extraordinary example of this thesis in ac-tion-an opportunity to observe first hand the struggle with, andultimate acceptance of, an international legal norm by a domestic le-gal order, and not just by courts, but by political elites as well. Itprovides an opportunity to observe empirically what scholars havepostulated as a matter or theory-how and why a nation comes to

42. See infra Part III.B. The relative caution exhibited by the French courts asregards the exercise of "pure" universal jurisdiction for crimes committed outside ofFrench territory is perhaps to be contrasted with the recent willingness of the Frenchgovernment to act more decisively if its nationals or some other national interest isinvolved. This was evidenced by France's willingness to tolerate a rupture of diplo-matic relations with Rwanda over terrorism allegations levied by Frenchinvestigating judge Jean-Louis Brugui6re against Rwandans, including PaulKagame, Rwanda's current president, for the attack that brought down the aircraftcarrying the former presidents of Rwanda and Burundi in 1994. For a discussion ofthe interesting issues raised by the Rwandan genocide and the transnational lawsuitsit has spawned, see Leila Nadya Sadat, Transnational Judicial Dialogue and theRwandan Genocide: Aspects of Antagonism and Complementarity 22 LEIDEN J. INT'LL. 543 (2009.

43. U.S. leadership was critical to the establishment of the ICTY and ICTR, theSpecial Court for Sierra Leone, and even in bringing the Sudan situation to the U.N.Security Council. Warren Hoge, U.N. will refer Darfur crimes to court in Hague, INT'LHER. TRIB., April 2-3, 2005, at 6.

44. See, e.g., Sadat, supra note 21. France has supported both the ICC and the adhoc Tribunals, but has also been inconsistent in its willingness to apply the norm ofaccountability to its own activities, as evidenced by the refusal to squarely addressallegations of atrocities committed by French soldiers during the Algerian war.

45. See, e.g., Harold Hongju Koh, Transnational Legal Process, 75 NEBRASKA L.REV. 181 (1996); Harold Hongju Koh, Why Do Nations Obey International Law?, 106YALE L.J. 2599 (1997); Harold Hongju Koh, Bringing International Law Home, 35Hous. L. REV. 623 (1998); Anne-Marie Slaughter & Laurence R. Heifer, Toward aTheory of Effective Supranational Adjudication, 107 YALE L.J. 273 (1997-1998); Anne-Marie Slaughter & William Burke-White, The Future of International Is Domestic (or,The European Way of Law), 47 HARV. INT'L L. J. 327 (2006); Melissa A. Waters, Medi-ating Norms and Identity: The Role of Transnational Judicial Dialogue in Creatingand Enforcing International Law, 93 GEO. L. J. 487 (2005).

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adopt and embrace a particular set of international legal rules, evenrules that may appear contrary to self interest, at least to someconstituencies.

I conclude that while transnational legal process theory capturesthe process by which France internalized the Nuremberg principles,it cannot explain why that process took place in France. Moreover, Ireject the conventional wisdom that the explanation for "AmericanExceptionalism" is limited to the invocation of America's superpowerstatus, without more. Instead, I argue that deeper historical, cul-tural, and social factors that influenced French legal culture canprofoundly illuminate our understanding of how and why interna-tional criminal law came to deeply penetrate French law while itremains only superficially and sporadically enforceable in the UnitedStates. Note that I do not claim that politics play no role in a State'swillingness to embrace accountability measures. Political will is anecessary condition for the application of justice, and France, like theUnited States, has had its difficulties with questions of accountabil-ity, for example, for the Algerian war. What I do suggest, however, isthat while political will may be a necessary condition, it is not in andof itself a sufficient one, and that politics and law interact in a mutu-ally reinforcing system that plays out differently in differentcountries depending upon their legal culture.

Finally, I observe that the international norms embedded in theFrench legal order have not been stagnant, nor have they been a com-pletely faithful replica of the original Nuremberg principles. Indeed,even in incorporating these principles, the French courts and politicalelites have modified their provisions to suit the taste and particulari-ties of French political life and foreign policy. The French courts havenot been passive recipients of international norms, and their own ju-risprudence has been widely cited before the International CriminalTribunals for the Former Yugoslavia and Rwanda.46 In this way, theFrench jurisprudence is, to paraphrase the International Military

46. Indeed, the ICTY recently relied upon the Barbie case in an opinion definingthe notion of "civilian" as the victim of a crime against humanity. Prosecutor v. Mar-tic, Case No. IT-95-11-A, Judgment, para. 831, (Oct. 8, 2008); See also in the ICTY,Prosecutor v. Mrki6 et al., Case No. IT-95-13/1-T, Judgment (Sept. 27, 2007); Prose-cutor v. Plavgik, Case No. IT-00-39 & 40/1-S, Sentencing Judgment (Feb. 27, 2003);Prosecutor v. Krsti6, Case No. IT-98-33-T, Judgment (Aug. 2, 2001); Prosecutor v.Blagkid, Case No. IT-95-14-T, Judgment (Mar. 3, 2000); Prosecutor v. Kupre~ki et al.,Case No. IT-95-16-T, Judgment (Jan. 14, 2000); Prosecutor v. Tadid, Case No. IT-94-1-T, Judgment (May 7, 1997); Prosecutor v. Erdemovi6, Case No. IT-96-22-T, Sentenc-ing Judgment (Nov. 29, 1996). For citations to the French crimes against humanitycases in the ICTR, see, e.g., Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T,Judgment (Sept. 2, 1998), paras. 565; 567; 569; 571; 572; 575; 576; fn.148 (citingBarbie); paras. 567; 571; 573; 574 (citing Touvier); para. 567 (citing Papon); Prosecu-tor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-A, Judgment, para. 110 (July 6,2006) (citing Papon); Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-A, Judg-ment, para. 64, fn.39 (Dec. 6, 1999) (citing Barbie, Touvier and Papon).

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THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58

Tribunal at Nuremberg itself, both an expression of and, at the sametime, a contribution to international law. 47

II. DEVELOPING A FRENCH JURISPRUDENCE OF CRIMES

AGAINST HUMANITY

A. Developments Following the First World War

At the end of the First World War, France and the United Statesparted company as far as the construction of an international systemof justice was concerned. While some of this can be accounted for bythe many formal differences existent between the approach of conti-nental and U.S. lawyers towards international law,48 thosedifferences were exacerbated as a practical matter by the U.S. deci-sion to abandon the League of Nations project. America's failure toenter the League removed American lawyers and academics, for themost part, from the intellectual and political currents that would cre-ate a legal culture open to the development of international law andinstitutions taking root in Europe. 49

Woodrow Wilson's "Fourteen Points," including the establish-ment of the League of Nations,50 had initially been embraced by the

47. International Military Tribunal (Nuremberg), Judgment and Sentences, Oct.1, 1946, reprinted in 41 AM. J. INT'L L. 172, 216 (1947). Or, as Melissa Waters puts it,the French and international legal orders are "co-constitutive" of the norms.

48. See, e.g., Gilbert Guillaume, Preface, Symposium: French and American Per-spectives Towards International Law and International Institutions, 58 MAINE L. REV.281, 282-84 (2006).

49. The American Society of International Law continued to advocate for the im-portance of international law, as well as for public education in the subject. FREDERICL. KIRGIS, THE AMERICAN SOCIETY OF INTERNATIONAL LAw'S FIRST CENTURY 1906-2006, 55-155 (2006). Many of the Society's founders such as Manley 0. Hudson andElihu Root believed that if the public were educated about international law, govern-ments, and particularly democratic governments would be pressured to obeyinternational law. Id. See also Elihu Root, The Need of Popular Understanding of In-ternational Law, 1 AM. J. INT'L L. 1, 2-3 (1907). Other notable U.S. participation in thedevelopment and codification of international law included the Harvard Research pro-ject on International Law codification, which began in 1928, and law related projectssupported by the Carnegie Endowment for International Peace. See David Bederman,Appraising a Century of Scholarship in the American Journal of International Law,100 AM. J. INT'L L. 20, 52 (2006). Yet even individuals passionate about internationallaw in principle were typically mute (or negative) on the subject of its application toindividuals. See, e.g., Manley 0. Hudson, Editorial Comment: The Proposed Interna-tional Criminal Court, 32 AM. J. INT'L L. 549 (1938), and when the Society was facedin the 1930s with the specter of another war, it reacted with detachment, due perhapsto a lack of faith in international law given, in particular, the failure of the UnitedStates to join the League and the Permanent Court. KIRGIS, supra, at 154-55. See alsoJANIS, supra note 28, at 150-54 (on the optimism of Root and others prior to WorldWar I). International law was not taught in many law schools, or taught only sporadi-cally, even at Harvard, and Harvard during this period appeared to set both thestructure and the content of the American Law School curriculum. ROBERT STEVENS,LAw SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980s 39 (1983).

50. Woodrow Wilson, Speech to Joint Session of Congress on the Fourteen Points(Jan. 8, 1918), 65 Cong. Rec. 2nd sess. 680681 (1918), available at httpj/www.fordham.edu/halsalYmod/1918wilson.html.



international community as well as by both Republicans and Demo-crats during the war.51 However, once an armistice was agreed,partisan bickering broke out, Wilson became a divisive figure, andduring the elections of November, 1918, the Democrats lost control ofboth Houses of Congress.5 2 The Paris Peace Conference ultimatelyadopted a consensus document calling for the establishment of theLeague, to come into force later with the drafting of a Covenant andthe adoption of the Treaty of Versailles, 53 but by the time Wilson hadsigned the Treaty and returned to the United States he had lost thepolitical support he needed to assure the Covenant's acceptance bythe Senate. 54 Ratification failed, some say, due to the Treaty's sup-porters who refused to accept the reservations attached byRepublican Senator Lodge, the powerful chair of the Senate ForeignRelations Committee; others blame the Treaty's opponents. Whateverthe "truth" of the matter, there is little doubt that stubbornness onboth sides destroyed the possibility of compromise that would havepermitted the United States to join the League.55

Likewise, when the Commission on the Responsibility of the Au-thors of the War and on the Enforcement of Penalties proposed theconstitution of an international "high tribunal" for the trial of "allenemy persons alleged to have been guilty of offences against thelaws and customs of war and the laws of humanity,"56 the Americanmembers of the Commission objected. The U.S. delegates, RobertLansing and James Brown Scott, both prominent members of theAmerican Society of International Law, 57 observed that there was no

51. See THOMAS J. KNOCK, To END ALL WARS: WOODROW WILSON AND THE QUESTFOR A NEW WORLD ORDER 184-89 (1992).

52. F.P. WALTERS, A HISTORY OF THE LEAGUE OF NATIONS 25 (1960); JonathanZasloff, Law and the Shaping of American Foreign Policy: From the Gilded Age to theNew Era, 78 N.Y.U. L. R. 239, 341-42 (2003).

53. See Treaty of Versailles, June 28, 1919, 42 Stat. 1939.54. See JOHN MILTON COOPER, JR., BREAKING THE HEART OF THE WORLD: WOOD-

ROW WILSON AND THE FIGHT FOR THE LEAGUE OF NATIONS 7 (2001). See also generallyMARGARET MACMILLAN, PARIS 1919: Six MONTHS THAT CHANGED THE WORLD (2003);Zasloff, supra note 52, at 341-56.

55. On the second vote, there was a majority in favor of ratification 49 for, 35against; however, 23 of those voting against the Treaty were actually supporters ofthe League who were opposed to Lodge's reservations. Id. at 71. See EDWARD C. LUCK,MIXED MESSAGES: AMERICAN POLITICS AND INTERNATIONAL ORGANIZATION 1919-199950, 255-56 (1999); Louis FISHER, PRESIDENTIAL WAR POWER 81-84 (2004); WALTERS,supra note 52, at 71. Zasloff, supra note 52, at 356.

56. Commission on the Responsibility of the Authors of the War and on the En-forcement of Penalties: Report presented to the Preliminary Peace Conference, 14 AM.J. INT'L. L. 95, 123 (1920) [hereinafter Commission on Responsibility].

57. KIRGIS, supra note 49, at 76. While Hudson was appointed as Bemis Professorof International Law at Harvard Law School in 1923, a position that he held until1954, Milton Katz, Manley Hudson and the Development of International Legal Stud-ies at Harvard, 74 HARv. L. REV. 212 (1960), and had developed his interest ininternational law while serving as technical advisor to the American Commission atthe Paris Peace Conference in 1918, he never embraced the notion of individual crimi-nal responsibility under international law in his writings, and there is no evidence

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international law to be applied, no international court with jurisdic-tion, and that the trials would violate State sovereignty, particularlyas regards the attempt to impose criminal liability on a head ofState.58 The trials ultimately held pursuant to the Treaty of Ver-sailles were a fiasco;59 and the U.S. abandonment of the League isoften pointed to as at least one reason for the League's demise.60

Yet the notion of international criminal law and accountabilitywere not nearly as dormant as a cursory examination of the PostWorld War I practice suggests,61 particularly if we remove ourselvesfrom American soil.62 For beneath the frozen surfaces of formal inter-national institutions was a ferment of activity. Renowned continentalscholars of international law-including Hugh Bellot, Henri Don-nedieu de Vabres, Andr6 Gros, Rdn6 Cassin, Albert de LaPradelle,Vespasian Pella, Jean Andr6 Roux, and other distinguished academ-ics-were writing articles supporting the establishment ofinternational institutions and legal regimes to promote accountabil-ity and human rights throughout the 1920s even though the modernday language of international criminal law did not yet really exist.63

that he believed it was a useful idea. Indeed, there is substantial evidence to the con-trary. Hudson, supra note 49.

58. Leila Sadat Wexler, The Proposed Permanent International Criminal Court:An Appraisal, 29 CORNELL INT'L L. J. 665, 669-70 (1996). Commission on Responsibil-ity, supra note 56. See also Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B.INT'L L.178, 181-82 (1946).

59. See Matthew Lippman, Nuremberg: Forty-five Years Later, 7 CONN. J. INT'L L.1, 10-12 (1991); L.C. Green, The Law of Armed Conflict and the Enforcement of Inter-national Criminal Law, 22 CAN. Y.B. INT'L L. 3, 10-12 (1984); CLAUDE LOMBOIS, DROITPENAL INTERNATIONAL 129-35 (1979); TAYLOR, supra note 1, at 16-18, 29.

60. See LUCK, supra note 55, at 23.61. Indeed, there is substantial evidence to the contrary. See, e.g., Hudson, supra

note 49.62. That is not to say that there was no activity in the United States; Ben Ferencz

points to an essay written by Columbia University philosopher John Dewey as evi-dence of intellectual activity in the United States. BEN FERENCZ, AN INTERNATIONALCRIMINAL COURT: A STEP TowARD WORLD PEACE - DOCUMENTARY HISTORY AND ANALY-sis 40 (1980). These writings were not particularly influential, however, and unlikePella and de Vabres' books and articles, do not appear to have received wideattention.

63. See, e.g., Hugh H.L. Bellot, La Cour Permanente international criminelle, 3REV. INTERNATIONALE DE DROIT PENAL 333-37 (1926); M. A. Caloyanni, The Perma-nent International Court of Criminal Justice, 2 REV. INTERNATIONALE DE DROIT PNAL326-54 (1925); M.A. Caloyanni, La Cour criminelle internationale, 5 REV. INTERNATIO-NALE DE DROIT PENAL 261 (1928); Henri Donnedieu de Vabres, La Courpermanente deJustice internationale et sa vocation en matire criminelle, 1 REV. INTERNATIONALE DEDROIT PENAL 175 (1924); Albert de Lapradelle, Declaration des droits et devoirs desnations, art. 4, in 1925 ANNUAIRE at 238, 239. Albert Levitt, A Proposed Code of Inter-national Criminal Law, 6 REV. INTERNATIONALE DE DROIT PE NAL 18 (1929); VespasianPella, Rapport sur un projet de statut d'une Cour criminelle internationale presentg auConseil de direction de lAssociation internationale de droit pdnal, 5 REVUE INTERNATI.ONALE DE DROIT PENAL 265 (1928); Lord Phillimore, An International Criminal Courtand the Resolutions of the Committee of Jurists, 3 BRITISH Y. BK. INT'L L. 79 (1922-1923) (expressing some scepticism, but concluding that further discussion of the ideawas warranted); Jean Andr6 Roux, A propos d'une Cour de cessation internationale,

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Baron Descamps, the Belgian President of the International Commit-tee of Jurists that prepared the Statute of the Permanent Court ofInternational Justice, proposed (unsuccessfully) a resolution thatwould have permitted the Court to "try crimes constituting a breachof international public order or against the universal law of na-tions. '64 Seconding the plan, Donnedieu de Vabres, who would laterbecome the French judge at Nuremberg, wrote in 1924,

In our eyes, the essential role of the Permanent Court, incriminal matters, will be as a regulating Court charged withpreparing, through jurisprudential means, an internationalsolution to conflicts within its jurisdiction. So long as. .. thisresult remains elusive, anarchy will reign in the domain ofinternational criminal law.6 5

Commenting upon this trend in a brief and unenthusiastic essay onthe subject of an international criminal court penned in 1938, thegreat American international law professor, Manley 0. Hudson, re-ferred to this body of scholarship as revealing "the spell which theidea of an international criminal court exercised on many minds. '66

(Brierly took a similarly negative view, arguing in 1927 that "the no-tion that war crimes can be banished from war or even appreciablyreduced by the institution of a criminal court is probably a delusion.... "67)

Professional associations of lawyers and academics took up thequestion of an international criminal court in the 1920s. For example,the International Law Association voted in 1922 at its Buenos AiresConference to support the establishment of an International Crimi-nal Court, and assigned Dr. Hugh Bellot with the task of drafting the

6 REVUE INTERNATIONALE DE DROIT PIeNAL 12 (1929); J.A. Roux, L'entr'aide des 6tatsdans la lutte contre la criminalitg, 36 RECUEIL DES CouRs 77 (1931); Q. Saldafia, Lajustice pdnale internationale, 10 RECUEIL DES COURs 223 (1925); E. Vadasz, Jurisdic-tion criminelle internationale, 5 REV. DE DROIT INTERNATIONAL, DE SCIENCES

DIPLOMATIQUES ET POLITIQUES 274 (1927). See also RENt CASSIN, LE CONTENTIEUX

DES VICTIMES DE LA GUERRE: ETUDE DE LA JURISPRUDENCE CONCERNANT LES PENSIONSDE GUERRE ET L'ADOPTION DES PUPILLES (1924-1925); HENRI DONNEDIEU DE VABRES, LAR9PRESSION INTERNATIONALE DES DALITS DE DROIT DES GENS (1935); HENRI DONNEDIEUDE VABRES, LES PRINCIPES MODERNES DU DROIT P9NAL INTERNATIONAL (1928); HENRIDONNEDIEU DE VABRES, INTRODUCTION A L'C TUDE DU DROIT P9NAL INTERNATIONAL(1922); ALBERT GEOUFFRE DE LAPRADELLE, LES PRINCIPES GCN9RAUX DU DROIT INTER-NATIONAL (1929); BERNARD DE FRANCQUEVILLE ET ALBERT GEOUFFRE DE LAPRADELLE,L'OEUVRE DE LA COUR PERMANENTE DE JUSTICE INTERNATIONALE (1928); VESPASIANPELLA, LA CRIMINALITA COLLECTIVE DES PTATS ET LE DROIT P9NAL DE L'AVENIR 360 (2ded. 1926); H. VON WEBER, INTERNATIONALE STRAFGERICHTSBARKEIT 176 (1934). But seeJ.L. Brierly, Do We Need an International Criminal Court?, 8 BRITISH Y. BK. INT'L L.81-88 (1927) (expressing the view that an international criminal court would not bedesirable or useful).

64. Phillimore, supra note 63, at 80.65. Donnedieu de Vabres, supra note 63, at 179.66. Hudson, supra note 49, at 551.67. Brierly, supra note 63, at 87.

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Court's Statute, which was presented to the Association's member-ship at the 1924 ILA meeting in Stockholm. (Both U.S.representatives present objected to the notion as well as to the draftstatute itself, which was subsequently sent to an ILA committee forfurther study.)68 The report was enthusiastically embraced byRomanian scholar Vespasian Pella,69 who had continually advancedthe idea of an international criminal court through his work and pro-fessional associations, however, and the ILA ultimately adopted adraft Statute at its meeting in Vienna, in 1926.70

Pella was joined in his support for the Court by Swiss law profes-sor Jean Graven, who also called for the establishment of apermanent international criminal court and, incidentally, taught ayoung Egyptian lawyer, M. Cherif Bassiouni, who was destined to be-come the Chair of the Drafting Committee of the U.N. DiplomaticConference that adopted the Court's Statute in 1998.71 Pella becameparticularly influential as both the President of the International As-sociation of Penal Law, established in Paris in 1924, and asRomania's minister at the League of Nations.7 2 Both the Interna-tional Association of Penal Law7 3 and the Advisory Committee of theLeague of Nations7 4 issued a call for the establishment of an interna-tional criminal court in the 1920s.

Even some politicians were prepared to support the notion of aninternational criminal court, as suggested by the remarks of con-servative statesman Raymond Poincar6,75 who opined, in 1925, that,"A judicial penal organization and the application of sanctions to thecrime that may be committed, that is the aim which humanity must

68. Draft Statute for the Permanent International Criminal Court, in THE INTER-NATIONAL LAW ASSOCIATION, REPORT OF THE THIRTY-THIRD CONFERENCE 74-111(1925).

69. For a brief biography, see generally In memoriam: Vespasian V. Pella, 1897-1952, 46 AM. J. INT'L. L. (1952).

70. INTERNATIONAL LAW ASSOCIATION, REPORT OF THE 34TH CONFERENCE, 183(1926). The Conference Proceedings state that the vote was carried with two or threedissenting votes. Unfortunately, no record is available as to which members objected.

71. Pella summarizes much of his earlier work in Vespasian V. Pella, Towards anInternational Criminal Court, 44 AM. J. INT'L L. 37 (1950). See also Foreword: TakingAim at the Sky, THE THEORY AND PRACTICE OF INTERNATIONAL CRIMINAL LAw: ESSAYSIN HONOR OF M. CHERIF BAssIoImI (Leila Nadya Sadat & Michael P. Scharf eds.,2008).

72. M. Cherif Bassiouni, A Century of Dedication to Criminal Justice and HumanRights: The International Association of Penal Law and the Institute of Higher Studiesin Criminal Sciences, 38 DEPAUL L. REV. 899, 904 (1988-89).

73. U.N. SECRETARY GENERAL, HISTORICAL SURVEY OF THE QUESTION OF INTERNA-TIONAL CRIMINAL JURISDICTION, at 15, U.N. Doc. AICN.4/7/Rev.1, U.N. Sales No. V.8(1949).

74. Proc~s-Verbaux of the Proceedings of the Advisory Comm. of Jurists on the Per-manent Court of Int'l Justice, League of Nations-Legal 1920 I, Vol. 1, at 503 (1920).

75. Raymond Poincar6 served as Prime Minister on five separate occasions and asPresident of France from 1913 to 1920.

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pursue if it desires that its beautiful dream of universal peace becomean enduring reality."76

Poincard's enthusiasm notwithstanding, it must be admittedthat generally speaking, political elites were not yet ready to acceptthe notion of an international court with jurisdiction over the crimesof individuals. (A treaty to establish an international terrorism courtwas adopted in 1937; however, no state ratified the text and it neverentered into force.) 77 Although these efforts were not politically suc-cessful, the extensive and probing legal debates they inspireddeveloped both a cadre of individuals with substantive expertise ininternational criminal law and adjudication, as well as the develop-ment of doctrine ready to be employed once political opportunityarose.

B. The Occupation of France and the Nuremberg Trials

In June, 1940, France was overrun by Hitler's army and forcedinto an armistice under which northern France, including Paris, fellunder German occupation.78 On June 14, 1940, the Swastika re-placed the Tricolore at the Paris H6tel de Ville, 79 and on June 22, theFrench-German armistice was signed in the forest of Compi~gne.80

Until November 1942, the southern portion of France, including thetown of Lyon, remained unoccupied by the Germans and was gov-erned by a French administration headed by Mar~chal P~tain in thespa town of Vichy.81 A French government in exile, La Comitg Fran-qais pour la Liberation Nationale, led by General Charles de Gaulletook up residence in London, along with eight other European gov-ernments in exile, and DeGaulle and the French resistance in bothoccupied and unoccupied France took up arms against the Germans.

While DeGaulle joined the allies, the Vichy government collabo-rated with Berlin, supplying money and material to the German warmachine, and, infamously, participating in Hitler's terrible plan toexterminate the Jews of Europe. Some courageous individuals spokeout against the mistreatment of the Jews of France. Even Pierre La-val, P~tain's Minister of State who was seen as the architect ofVichy's collaboration with the Nazis,8 2 allegedly did not know the fi-

76. Cited in FERENCZ, supra note 62, at 24-25.77. Only ten states signed the convention. Geoffrey Marston, Early Attempts to

Suppress Terrorism: The Terrorism and International Criminal Court Conventions of1937, 73 BRIT. Y.B.INT'L L. 293 (2002).

78. TAYLOR, supra note 1, at 23. See also TED MORGAN, AN UNCERTAIN HOUR 54(1990).

79. HERBERT R. LorrMAN, THE FALL OF PARIS 297, 329-43 (1992).80. GEORGES VEDEL, MANUEL ELtMENTAIRE DE DROIT CONSrITUTIONNEL 257-58

(1949). See also DOMINQUE VEILLON, LA COLLABORATION: TEXTES ET DtBATS 447-55(1984) (setting out a World War II chronology of events taking place in France).

81. MORGAN, supra note 78, at 84-89.82. Id. at 99.

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nal fate of those deported until 1943, and took some steps to protectFrench (but not foreign) Jews, thereby mitigating the slaughter.8 3

Other French men and women, including prominent clergymen,risked their lives to hide or otherwise protect their friends or compa-triots. Yet there is little doubt of Vichy's active collaboration with thedportation, which resulted in the transfer of more than 140,000 per-sons from France, an estimated 75,000 of whom were Jewish, to Nazideath camps.8 4

Meanwhile, as the war raged, the allies determined that the per-petrators would be punished, issuing declarations to that effect andcreating a "United Nations War Crimes Commission" to identify warcrimes suspects and to collect and organize evidence of and about warcrimes, as well as to establish "some machinery.., for dealing withatrocities committed on racial, political or religious grounds."85 OnNovember 1, 1943, the Allies gathered in Moscow and formally de-clared their intention to prosecute German war criminals, therebysetting the stage for the adoption of the Charter of the InternationalMilitary Tribunal at Nuremberg.8 6 Following Germany's uncondi-tional surrender on May 8, 1945,87 on June 26, 1945, theInternational Conference on Military Trials was convened at Londonto determine how such a trial could be accomplished.

As one of the major allied powers, France took an active part indrafting the "Agreement for the Prosecution and Punishment of Ma-jor War Criminals of the European Axis," (the "London Accord") andthe Charter of the International Military Tribunal (IMT Charter) an-nexed thereto. 88 The French, advised by distinguished professorsAndr6 Gros and Ren6 Cassin, pointed to many of the legal difficultiesinvolved in attempting to try the Germans for crimes committed

83. Michael E. Tigar et al., Paul Touvier and the Crime Against Humanity, 30TEX. INT'L. L.J. 285, 287 (1995).

84. MICHAEL MARRUS & ROBERT PAXTON, VICHY FRANCE AND THE JEWS 3-5, 12(1981). See also SERGE KLARSFELD, VICHY-AuscHWITZ (1983); Richard Weisberg, LegalRhetoric under Stress: The Example of Vichy, 12 CARDOZO L. REV. 1371, 1375-77(1991).

85. Reprinted in Roger Clark, Crimes Against Humanity, in THE NUREMBERGTRIAL AND INTERNATIONAL LAW 177-78 (Ginsburgs & Kudriavtsev, eds., 1990).

86. Declaration of German Atrocities, Nov. 1, 1943, 3 Bevans 816, 834 DEP'T. ST.BULL. (Nov. 6, 1943). France supported but did not sign the Moscow Declaration, al-though General de Gaulle had signed the St. James Declaration, issued to the sameeffect one year earlier. Note, Pour le Comitd Frangais de la Liberation Nationale, Au-gust 18, 1943.

87. WILLIAM L. SHIRER, THE RISE AND FALL OF THE THIRD REICH: A HISTORY OFNAzI GERMANY 1037-38 (1960).

88. London Agreement. See also M. Cherif Bassiouni, "Crimes Against Human-ity": The Need for a Specialized Convention, 31 COLUM. J. TRANS. L. 457 (1994);Schwelb, supra note 58, at 178, 179-180. For a general history of the historical legalfoundations of Article 6(c), see M. CHERIF BASsIoUNI, CRIMES AGAINST HUMANITY ININTERNATIONAL LAW 1, 562 (2d ed., 1999) [hereinafter BASSIOUNI, CRIMES AGAINSTHUMANITY].

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abroad, in particular the absence of an international criminal code.8 9

Nonetheless, records of the French negotiators and advisors of thetime suggest that the French government was largely favorable tothe establishment of an international tribunal, and the trial of Ger-man war criminals before it.90 As Ren6 Cassin wrote at the time,

The French National Liberation Committee ... must, as therepresentative of the oppressed French nation, solemnly af-firm its determination to punish effectively and by way ofexample-and to the extent possible-to prevent war crimesof which France, French citizens and her subjects or thoseunder her protection, and more generally innocent humanbeings who are being or have been victimized. 91

The negotiations at London were protracted and difficult; indeed, for-mer Nuremberg prosecutor Telford Taylor writes that the projectalmost failed due to the difficulties Robert Jackson, America's leadnegotiator, experienced with the Russian and French delegations,both of which, according to Taylor, were apparently doubtful aboutthe legitimacy of an "aggressive war" charge, 92 and who hailed fromcriminal justice systems that varied greatly from the proceduresJackson and his British counterparts were accustomed to. 9 3

France also participated in prosecuting the major war criminalsat Nuremberg, 94 and by agreement, had principal responsibility forpresenting the evidence concerning war crimes and crimes againsthumanity allegedly committed by the defendants in the countries ofWestern Europe. With respect to crimes against humanity, Article 6

89. Two Memoranda (Notes) dated October 7, 1943, and March 21, 1943, preparedin London by Professor Andr6 Gros, to The French Ambassador, Concerning theQuestion of War Crimes and Practical Solutions to their Punishment; Punishmentand Prevention of Enemy War Crimes, Second Report by Professor Ren6 Cassin,D616gud de la France A la Commission d'Enqu6te des Nations Unies sur les Crimes deGuerre, prepared in Algiers, on May 9, 1944. (Author's notes, author's translation.)

90. Cassin Report, supra note 89.91. Id. at 56. The Report makes references to avoiding "la comddie qui a rendu

vaines les dispositions du trait6 de Versailles" (the farce of Versailles). Id.92. It is not clear that Taylor is correct on this point, although it may have been

Jackson's perception or the position of the French government in 1945. In a memoran-dum written to the UN War Crimes Commission on September 27th, 1944, Dr. B.Eter argued that the waging of an aggressive war should be considered as crimesbeing within the scope of the UN War Crimes Commission, citing an earlier memo-randum by the French members of Commission II of the London InternationalAssembly, that had been presented to the Commission in 1942 and took the view thatthe war was a crime in the legal sense of the word. Minority Report by Dr. B.E~er.

93. TAYLOR, supra note 1, at 75-77.94. Although the French only had one of the twenty-two defendants eventually

brought to trial at Nuremberg in their possession, they took an active role in the pros-ecution. Court of Cassation Judge Robert Falco was their representative to theinternational conference on drafting, and Donnedieu de Vabres was the French mem-ber of the Tribunal (Judge Falco was the alternate). TAYLOR, supra note 1, at 59. Seegenerally DONNEDIEU DE VABRES, LE Paocks DE NUREMBERG, COURS DE DOCTORAT(Montchrestien 1946).

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of the Nuremberg Charter provided that the International MilitaryTribunal had the power to try and punish persons who, acting in theinterests of the European Axis countries, committed crimes againsthumanity:

(c) [NIamely, murder, extermination, enslavement, deporta-tion, and other inhumane acts committed against anycivilian population, before or during the war, or persecutionson political, racial or religious grounds in execution of or inconnection with any crime within the jurisdiction of the Tri-bunal whether or not in violation of the domestic law of thecountry where perpetrated. 95

Relying upon this provision in his opening address, French ChiefProsecutor Frangois de Menthon 96 argued that crimes against hu-manity were "crimes against the spirit," and opened the French casewith a dramatic appeal to the tribunal:

France, which was systematically plundered and ruined;France, so many of whose sons were tortured and murderedin the jails of the Gestapo or in concentration camps; France... asks of you, above all in the name of the heroic martyrs ofthe Resistance, who are among the greatest heroes of our na-tional legend, that justice be done.France, so often in history the spokesman and the championof human liberty, of human values, of human progress,through my voice today becomes also the interpreter of themartyred peoples of Western Europe, Norway, Denmark, theNetherlands, Belgium, Luxembourg, peoples more than allothers devoted to peace ... peoples who have shared our suf-ferings and have refused, like us, to ... sacrifice their souls..... France here becomes their interpreter to demand thatjustice be done. The tortured people's craving for justice isthe basic foundation of France's appearance before yourHigh Tribunal .... More than toward the past, our eyes areturned toward the future.97

The French prosecution often suffered from a lack of resources(France was still recovering from the occupation), and according toformer Nuremberg Prosecutor Drexel Sprecher, the Frenchprosecutorial team had some difficulty adapting to the adversarialprocedures of the trial.98 Nonetheless, the French contribution wasan important element of the trial, particularly as regards the presen-

95. London Agreement, supra note 88.96. I DREXEL SPRECHER, INSIDE THE NUREMBERG TRIAL 549-50 (1999).97. De Menthon, supra note 34, at 89.98. SPRECHER, supra note 96, at 550.

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tation of the crimes against humanity charges. The trial opened onNovember 20, 1945, and ended on October 1, 1946. The judgment,while disappointing some who thought that the Tribunal should haveelaborated broader, more universal principles than it did, nonethe-less came to stand, broadly, for the idea that grave and massiveviolations of human rights are the concern of the international com-munity, not just of nation states, and that aggressive war, which thetribunal referred to as the "supreme international crime,"99 is mor-ally, legally, and politically wrong.

III. BRINGING THE NUREMBERG PRINCIPLES HOME: THE BARBIE,TOUVIER, AND PAPON TRIALS

Following their liberation by allied forces, the French engaged ina rudimentary form of what we would now call "transitional justice."This period was marked by violent purges of French collaborators(l'puration), including summary executions of as many as 10,000 (ormore) French men and women, and trials of both French collabora-tors and German agents captured in France. 100 Frenchmen werepunished for "collaboration" or treason. 101 Non-Frenchmen were pun-ished for war crimes.10 2 Both were tried under French laws thateither implemented the laws of war or specifically sanctioned thecrime of collaboration. None of the accused, however, was punishedby a French court for something called a "crime against human-ity."1 0 3 Indeed, most probably, "crimes against humanity" did notexist in French law prior to 1964.104

After the initial spate of prosecutions and the purge, amnestylaws were adopted that prevented the punishment of individuals forcrimes committed during the occupation period, thereby attemptingto bring "closure" to the tragedy of Vichy. Nevertheless, in France theNuremberg trials were, though finished, not forgotten. Donnedieu deVabres continued to write and publish on the subject,105 and France

99. IMT Judgment, supra note 47, at 186; HARRIS, supra note 2, at 568.100. Professor Sweets estimates the purge at probably some 10,000 Frenchmen,

executed at the hands of other Frenchmen without a proper trial, although othershave put the number as high as 40,000. See JOHN F. SWEETS, THE POLITICS OF RESIS-TANCE IN FRANCE, 1940-1944, 213, 216-17 (1976). See also Jean-Pierre Maunoir, Larepression des crimes de guerre devant les tribunaux frangais et allids, 39 (1956)(These No. 517, Universit6 de Genbve, Facult6 de Droit); HERBERT R. LOTrMAN, THEPURGE 22 (1986).

101. EUGkNE ARoNEANu, LE CRIME CoNTRE L'HuMANtir 225 (1961).102. See Sadat, supra note 37, at 317-18.103. See Georges Levasseur, Les crimes contre l'humanitg et le problme de leur

prescription, 93 J.D.I. 259, 263-64 (1966).104. See Claude Lombois, Un crime international en droit positif franqais, in DROIT

P9NAL CONTEMPORAIN M9LANGES EN L'HONNEUR D'ANDRE VITu 367, 373 (1989).105. See, e.g., HENRI DONNEDIEU DE VABRES, TRAIT9 DE DROIT CRIMINEL ET DE L9G-

ISLATION P9NALE COMPAREE (1947); HENRI DONNEDIEU DE VABREs, LES PRICIPAUXASPECTS DE LA POLITIQUE CRIMINELLE MODERNE (1960); Henri Donnedieu de Vabres,

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participated, along with other members of the new United Nationsincluding the United States, in the elaboration of the Genocide Con-vention and the Universal Declaration of Human Rights in 1948.Indeed, two primary architects of the Universal Declaration, EleanorRoosevelt and Ren6 Cassin, were American and French, respec-tively. 10 6 France was one of the initial six members of the commonmarket, joining Euratom, the Coal and Steel Community, and theEuropean Economic Community (as it was then called) in the1950s,10 7 and signing on to the European Convention on HumanRights on November 4, 1950.108 This required French lawyers andjudges, slowly at first, and increasingly with the passage of time, tothink about, use, and rely upon international (and European) law ona regular basis, establishing its application in the French courts to anextraordinary degree.

On the other side of the Atlantic, the legal picture could not bemore different. Other than the writings of former Nuremberg prose-cutors, many of which did not appear until considerably after the endof the war, 10 9 and which were written against a background of tre-mendous skepticism, the Nuremberg trials seem to have had littleimpact upon American law and U.S. policy immediately following thewar. Historian Elizabeth Borgwardt refers to the Nuremberg Charteras an example of the "multi-lateralist sensibility that briefly grippedthe United States" at the end of World War II, but also notes thatthere were probably more critics than enthusiasts of the trials.110

America's lackluster support for the Nuremberg legacy can be seen inits reluctance to ratify international criminal law conventions aswell. Whereas France ratified the 1948 genocide convention on Octo-ber 14, 1950, the United States took forty years to do so, ratifying itonly on November 25, 1988.111 Of course, the United States was pre-occupied with the Cold War-the threat of communism and nuclear

Le Proc~s de Nuremberg Devant les Principles Modernes du Droit Pdnal International,I RECEUIL DES CouRs 6 (1947).

106. See, e.g., MARY ANN GLENDON, A WORLD MADE NEW 4, 43, 61 (2001).107. CYRIL EDWIN BLACK ET AL., REBIRTH: A POLITICAL HISTORY OF EUROPE SINCE

WORLD WAR II, 114 (2000).108. However, France did not ratify the treaty until May 3, 1974. Minnesota

Human Rights Library, Ratification of International Human Rights Treaties -France, available at http://wwwl.umn.edu/humanrts/research/ratification-france.html.

109. In this regard, it is worth noting the extraordinary contributions of the Ameri-can Former Nuremberg prosecutors, in particular, to the development of the law inthis area, and in keeping interest in the Nuremberg legacy alive. See, e.g., FERENCZ,

supra note 62; HARRIS, supra note 2; ROBERT S. JACKSON, REPORT TO THE INTERNA-TIONAL CONFERENCE ON MILITARY TRIALS, LONDON 1945 (1945); SPRECHER, supra note96; TAYLOR, supra note 1.

110. BORGWARDT, supra note 1, at 236-37.111. United Nations Treaty Collection: Convention on the Prevention and Punish-

ment of the crime of Genocide, available at http://treaties.un.orgPages/ViewDetails.aspx?src=UNTSONLINE&Tabid=2&id=318&chapter=4&lang=en#Participants.

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annihilation were much more present on American minds than theneed to build upon the Nuremberg legacy. Still, the United States didassume a leading role in the negotiation of the four Geneva Conven-tions of 1949, which included the possibility of criminal sanctions for"grave breaches" of the Conventions, 112 building directly upon theNuremberg legacy. Finally, although emigr6 scholars like Hans Kel-sen brought to the United States their ideas about restraints uponthe use of force and the superiority of international law, their influ-ence quickly waned with the rise of the legal realist schoolchampioned by Hans Morgenthau, 113 and of the policy-oriented ap-proach towards international law emerging at Yale (unsurprisinglyreferred to as "the New Haven school"), dominated by Yale professorsHarold Laswell and Myres McDougal. 114 In contrast, a "liberal inter-nationalism" was espoused by scholars like Louis Henkin and OscarSchachter at Columbia, who argued that international law was notdependent upon the existence of sanctions to qualify as law, and whochallenged the pre-war positivists and the realists by arguing thatinternational law was accepted and generally complied with by moststates because it offers substantial practical advantages to states(and policy makers) that do so.115 Yet, as David Kennedy writes,

As the liberal consensus on American internationalism dissi-pated, the field [of international law] became increasinglymarginal, isolated from both the cosmopolitanism of Repub-lican free traders and the increasingly interventionist cold

112. Geneva Convention for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field, arts. 49, 50, Oct. 21, 1940, 75 U.N.T.S. 31; GenevaConvention for the Amelioration of the Condition of Wounded, Sick and Shipwreckedat Sea, arts. 49, 50, 51, Oct. 21, 1950, 75 U.N.T.S. 135; Geneva Convention Relative tothe Protection of Civilian Persons in Time of War, arts. 146, 147, Oct. 21, 1950, 75U.N.T.S. 287.

113. Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34AM. J. INT'L. L. 260 (1940). For a good discussion of this period, see MARY ELLEN

O'CONNELL, THE POWER AND PURPOSE OF INTERNATIONAL LAW 59-62 (2008).114. See, e.g., HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A

FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY (1992); Harold D. Lasswell &Myres S. McDougal, Legal Education and Public Policy: Professional Training in thePublic Interest, 52 YALE L.J. 203 (1943), which provides the beginnings of but stillpredates the core of their New Haven School scholarship. See also Myres S. McDougal& Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of PublicOrder, 53 AM. J. INT'L L. 1 (1959); Myres S. McDougal et al., The World ConstitutiveProcess of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1967); Myres S. McDougalet al., Theories About International Law: Prologue to a Configurative Jurisprudence, 8VA. J. INT'L L. 188 (1968); Hari M. Osofsky, A Law and Geography Perspective on theNew Haven School, 32 YALE J. INT'L L. 421 (2007).

115. Louis HENKIN, How NATIONS BEHAVE: LAW AND FOREIGN POLICY 47 (2d ed.1979). For an interesting discussion on schools of thought and the discipline of theinternational lawyer, see David Kennedy, The Twentieth-Century Discipline of Inter-national Law in the United States, in LOOKING BACK AT LAW'S CENTURY (Austin Saratet al. eds., 2002).

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war liberalism of the Democratic Party, in Vietnam andelsewhere.

The central project common to the new mainstream [interna-tional lawyer] is an urgent effort to permit internationallawyers to return to a position of authority within the Ameri-can political establishment they have not had in almost acentury."

6

Returning to the situation in France, the country had sufferedterribly during the German occupation and had its own complicity toreckon with in the Nazi's nearly successful efforts to exterminate Eu-ropean Jewry, as well as its own accounts to settle with former Nazis.In 1964, the French legislature incorporated crimes against human-ity into French municipal law. The law was largely motivated byrumors that Hitler was still alive and by concern that he and otherNazis who had not yet been brought to justice would escape prosecu-tion because the German Statute of Limitations was about to expire.This was a real possibility given that, at the time, Germany had atwenty-year statute of limitations for murder, and ten- and fifteen-year prescriptive periods for lesser crimes.117 Many former Nazis hadnot yet been tried in Germany, and similar prescriptive periods ex-isted in other countries where war criminals were thought to behiding. The Nuremberg Charter was silent on the question of a stat-ute of limitations 18 and all the laws adopted by the Allies followedsuit, with the exception of article Article II, para. 5 of Control CouncilLaw No. 10, which provide that persons accused of one of the crimestherein could not benefit from "any statute of limitation in respect ofthe period from 30 January 1933 to 1 July 1945."119

The French 1964 law provided:

116. Kennedy, supra note 115, at 417-18.117. Robert Miller, The Convention of the Non-Applicability of Statutory Limita-

tions to War Crimes and Crimes Against Humanity, 65 AM. J. INT'L L. 476 (1971). Theprescriptive period originally was set to begin on May 8, 1945, the day that Germanyunconditionally surrendered. The Bundestag extended it to December 31, 1969, byrestarting the clock on December 31, 1949. Robert A. Monson, The West German Stat-ute of Limitations on Murder: A Political, Legal and Historical Exposition, 30 AM. J.COMP. L. 605, 609-10 (1982).

118. Which was probably an oversight. Levasseur, supra note 103, at 265 & n.22.119. Control Council Law No. 10 provided for the trial of minor war criminals in

Germany on December 20, 1945. The purpose was to "give effect to the terms of theMoscow Declaration... and the London Agreement of August 8, 1945 ... in order toestablish a uniform legal basis in Germany for the prosecution of war criminals andother similar offenders, other than those dealt with by the International MilitaryTribunals." Official Gazette of the Control Council for Germany, no. 3, 22; JournalOfficiel du Commandement en Chef Fran~ais en Allemagne, no. 12 of 11 January1946. Allied Control Council Law No. 10 is reprinted in BASsIoUNI, CRIMES AGAINSTHuMANiTY, supra note 88, at 592. See also Jacques-Bernard Herzog, Itude des loisconcernant la prescription des crimes contre l'humanitg, 1965 REVUE DE SCIENCECRIMINELLE ET DE DROIT PNAL COMPARIE [REv. SCI. CRIM. & DR. P9N.I 337, 338.

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Law No. 64-1326 declaring the imprescriptibility of crimesagainst humanity."Sole article. Crimes against humanity, asdefined in the United Nations' Resolution of February 13,1946 taking account of the definition of crimes against hu-manity figuring in the Charter of the International Tribunalof August 8, 1945, are imprescriptible by their nature."120

By this law, the French legislature apparently intended both forcrimes against humanity (as defined in the IMT Charter) to becomean indictable offense under French municipal law and to abolish thedefense of prescription. 12' Note that this provision merely incorpo-rates the Nuremberg Charter by reference-it would seemingly beunthinkable for an American prosecutor to bring an indictmentunder a similar provision in U.S. law today, although there is prece-dent in early American cases for using international law to completelaconic Congressional statutes. 22 However, Article 55 of the FrenchConstitution of 1958 provides:

Treaties or agreements duly ratified or approved shall, upontheir publication, have an authority superior to that of laws,subject, for each agreement or treaty, to its application bythe other party.' 23

While it was not always clear that this provision implied the su-periority of international law in all cases,' 24 as the Court ofCassation subsequently found in the Touvier case, discussed below(following the report of President Mongin), the London Accord of Au-gust 8, 1945, had "in conformity with the constitutional tradition of

120. Journal Officiel de la Rdpublique Frangaise [J.O.1 Dec. 29, 1964. This law wasadopted unanimously by the French Legislature with the intention that any remain-ing Nazis would be punished, no matter when or where they were found. To meet theobjections of those who felt that eliminating the prescriptive period for one category ofcrimes would deprive criminal defendants of a right to which they were fundamen-tally entitled, the Report presented to the French National Assembly by Paul Coste-Floret responded that extinctive criminal prescription was a relatively new right, un-known at first to Roman law, and known only exceptionally at common law.Additionally, the Reporter noted that the justifications for the doctrine of prescrip-tion, the disappearance of evidence and the principle of "forgive and forget," did notapply, for evidence had become more-not less-abundant in the twenty years sincethe liberation, and the crimes committed were of a particularly serious nature, not tobe pardoned or forgotten-"le temps n'a pas de prise sur eux." See Sadat, supra note37, at 320-21.

121. Extinctive criminal prescription bars the prosecution of a defendant by theState (l'action publique) or the imposition of the punishment (la peine), if either hasnot been brought or carried out prior to a certain, statutorily-established, period oftime. See MARTIN WESTON, AN ENGLISH READER'S GUIDE TO THE FRENCH LEGAL SYS-TEM 30 (1991).

122. U.S. v. Smith, 18 U.S. 153 (1820).123. 1958 CONST. art. 55 (Fr.).124. See infra notes 225-230 and accompanying text.

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our country, an authority superior to that of the law.' 2 5 Confirmingthis jurisprudence in the Barbie case, 126 the French courts held thatthe London Charter and Accord were part of French law, and indeedhad an authority "superior to [domestic law] by virtue of Article 55 ofthe Constitution," requiring their direct application by the Frenchcourts. 127 This allowed them to elaborate upon and define the scopeand application of the 1964 law as well as to determine the meaningof Article 6(c) within the context of the three French prosecutionsbrought under the 1964 law, the Barbie, Touvier, and Papon case.

The Touvier Case

Paul Touvier's case was the first to be brought under the 1964law. Although a relatively minor figure in the Vichy hierarchy,Touvier used his position as Lyon's head of information services inthe Milice128 to harm opponents of the Vichy regime, particularlyJews.' 2 9 On June 27, 1973, a survivor of his anti-semitic activities,Rosa Eisner Vogel, filed a complaint with the public prosecutor's of-fice in Lyon' 30 accusing Touvier of directing a grenade attack againstthe Synagogue at Quai Tilsitt, Lyon, during World War II.13 1 Shortlythereafter, another survivor, Georges Glaeser brought an action im-plicating Touvier in the massacre of seven Jews (including his father)

125. Judgment of June 30, 1976, Cass. crim., 1977 DALLOZ-SIREY, JURISPRUDENCE1, 1976 Gazette du Palais [Gaz. Pal.] Nos. 322, 323, at 699, 1976 J.C.P. II G, No.18,435 [hereinafter Touvier II] [D.S. Jur.] (unless otherwise specified, all cites to theTouvier If decision are to the version published in the J.C.P.).

126. The Touvier and Barbie prosecutions are discussed in detail in Sadat, supranote 37. Touvier's trial is the focus of another work, Leila Sadat Wexler, Reflections onthe Trial of Vichy Collaborator Paul Touvier for Crimes against Humanity in France,20 J.L. & Soc. INQUIRY 191 (1995) [hereinafter Sadat, Reflections]. The Papon case(prior to conviction) is discussed in Leila Sadat Wexler, Prosecutions for CrimesAgainst Humanity in French Municipal Law: International Implications, in PROCEED-INGS OF THE 91ST ANNUAL MEETING OF THE AMERICAN SOCIETY OF INT'L L. 270 (1997).See more generally Jacques Francillon, Crimes de guerre, Crimes contre l'humanitg,JURIS-CLASSEUR, DROIT INTERNATIONAL, FASCICULE 410 (1993).

127. Judgment of Oct. 6, 1983, Cass. Crim., 1984 D.S. Jur. 113, G.P. Nos. 352-54,at 121 (Dec. 18-20, 1983), 1983 J.C. P. II G, No. 20, 107, J.D.I. 779 (1983) [hereinafterBarbie I]. See also George Desous, Rdflexions sur le rdgimejuridique des crimes contrel'humanit6, 1984 REv. SCI. CRIM. 657.

128. The Milice was established by Law No. 63, of Jan. 30, 1943, as a special mili-tary force for combating the Resistance and other enemies of the Vichy government.Jean-Pierre Azma, Les hommes en Noir de la Milice, LE MONDE, Mar. 17, 1994, Spe-cial Supp., p. IV.

129. By the time of the massacre at Rilleux, Touvier had risen through the com-mand structure of the Milice to become regional head of the second division at Lyon,in charge of intelligence and operations.

130. These are similar to county courts with criminal and original civil jurisdiction.WESTON, supra note 121, at 75-76.

131. The attack occurred on Dec. 10, 1943. Mrs. Vogel testified that she recognizedTouvier as an organizer of the Synagogue bombing that she had survived. Touvier II,supra note 125.

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by the Milice, at Rillieux-la-Pape. 132 Both individuals brought the ac-tion as civil parties. Around the same time, other individuals filedcharges against Touvier with the prosecutor's office at Chamb~ry. 133

They alleged that Touvier had tortured Robert Nant, a leader of theResistance, and had arrested and deported other members of the Re-sistance, some of whom died as a result.134 All three complainants-Vogel, Glaeser, and Nant-asserted that Paul Touvier had commit-ted crimes against humanity.

For three years, the case against Touvier navigated the Frenchjudicial system.1 35 It was dismissed and appealed twice. 136 Overall,the case presented the French courts with several significant issues,including whether the 1964 law could apply to crimes committedprior to its passage;1 37 whether it could apply to Frenchmen (as Arti-cle 6 of the IMT charter referred only to "Axis" war criminals); andwhether the acts alleged were crimes against humanity within themeaning of the IMT charter. The Criminal Chamber of the Court ofCassation never reached the issues presented, however. Instead, theCourt referred the case to the Minister of Foreign Affairs for a minis-terial interpretative response on the application of the treaties toTouvier's case.' 38

On July 15, 1979, the Minister of Foreign Affairs rendered thelong-awaited interpretation of the Nuremberg Charter in the Touviercase, holding that "the only principle in matters of the prescription of

132. The history of the massacre at Rillieux is set forth in Sadat, supra note 37, at292-93. See also LAURENT GREILSAMER & DANIEL SCHNEIDERMANN, UN CERTAIN MON-SIEUR PAUL 7-21 (1989) and the various court decisions issued in the Touvier case. See,e.g., Judgment of Apr. 13, 1992, Cour d'appel de Paris, Premiere chambred'accusation, at 133-62, reprinted in part in 1992 Gaz. Pal. 387, 387-417 [hereinafterTouvier III]. Subsequent citations are to the entire unpublished decision as filed withthe clerk of the court, which is on file with the author.

133. These were filed on Mar. 27, 1974. Touvier II, supra note 125 (Report of Coun-selor Mongin).

134. Id.135. For a more detailed account of the legal proceedings against Touvier, see gen-

erally Sadat, supra note 37; Sadat, Reflections, supra note 126.136. Judgment of Oct. 27, 1975, Chambre d'accusation de la cour d'appel de Paris,

1976 D.S. Jur. 260 (Note Coste-Floret), 1976 Gaz. Pal. Nos. 154-55, at 382 [hereinaf-ter Touvier IA] (all subsequent citations are to the D.S. Jur. version unless otherwisenoted).

137. This question posed a significant hurdle for the Court due to the insistence ofFrench law on the non-retroactivity of penal laws.

138. Touvier II, supra note 125. For commentary on this opinion, see Sadat, supranote 37, at 330-31. The French Court of Cassation has traditionally limited the powerof the courts within its jurisdiction to interpret treaties, preoccupied with the possibil-ity that judicial interpretation could disturb the smooth functioning of Frenchdiplomacy or cause the French State to be liable. The responses of the Minister of July15 (Touvier) and July 19 (Leguay), 1979, were very long in coming. When they finallyappeared, they were unpublished and sent only to the court and the parties. Judg-ment of January 26, 1984, Cass. crim., 1984 J.C.P. II G, No. 20,197 (Note Ruzi6),J.D.I. 308 (1984) [hereinafter Barbie II] (unless otherwise specified, all cites to theBarbie II decision are to the version published in the J.C.P.).

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crimes against humanity that one may derive from the IMT Charteris the principle of imprescriptibility.'u 39 This decision allowed boththe Touvier and Barbie cases to proceed.

The Prosecution of Klaus Barbie: 1983-1988

It was easier for the French to accept a case against Klaus Barbiethan Paul Touvier, of course. Barbie was a German national who wasknown as "the butcher of Lyon" for his role in destroying the FrenchResistance that had come to use Lyon as a base of operations duringLyon's time as part of Free France. 140 Freed of many of the difficul-ties that had troubled the Touvier prosecution, including the stillunanswered question whether Frenchmen and not just Germanscould be prosecuted under the 1964 law, and armed with the responseof the Ministry of Foreign Affairs as to the problem of prescription,the Court of Cassation had no trouble this time in addressing thethornier issues of what constitutes a crime against humanity inFrench (international) criminal law. This the Court did through a se-ries of opinions that I have addressed extensively in otherwritings.1 41 There are, however two particularly significant decisionsthat are worth noting here.

First, in an opinion rendered on January 26, 1984, the Court ofCassation rejected the argument that the crimes had prescribed.' 42

Following the interpretation of the Ministry of Foreign Affairs, 43 theCourt held that Barbie, charged with crimes against humanity, could

139. Id. 27 (Report of Counselor Le Gunehec). In fact, this issue was arguablyalready decided by implication in the Judgment of Feb. 6, 1975. Note M.R.L'imprescriptibilitN des crimes contre l'humanitd, 1976 G.P. II G, at 699. Note M.R.L'imprescriptibilitg des crimes contre l'humanitg, 1976 Gaz. Pal. II G, at 699.

140. BRENDAN MURPHY, THE BUTCHER OF LYON 32-33, 134 (1983). See also Judg-ment of Oct. 6, 1983, Cass. crim., 1984 D.S. Jur. 113, Gax. Pal. Nos. 352-54, at 710(Dec. 18-20, 1983), 1983 J.C.P. II G. No. 20,107, J.D.I. 779 (1983) [hereinafter BarbieI]. For a description of the charges against Barbie, see Sadat, supra note 37, at 333,n.200. LADiSLAS DE Hoyos, KLAus BARBIE 243-51 (Nicholas Courtin trans., 1985).

141. The four major decisions of the Criminal Chamber of the Court of Cassationare the Judgment of Oct. 6, 1983 [Barbie I, supra note 1271, Jan. 26, 1984 [Barbie II,supra note 138], Judgment of Dec. 20, 1985, Cass. crim., 1986 J.C.P. II G, No. 20,655,1986 JOURNAL Du DROIT INTERNATIONAL [J.D.I.] [hereinafter Barbie III], and Judg-ment of June 3, 1988, Cass. crim. 1988 J.C.P. II G, No. 21, 149 (Report of CounselorAngevin) [hereinafter Barbie IV]. There were two other minor decisions, the Judg-ment of Nov. 25, 1986, and the Judgment of Mar. 9, 1988, that will not be discussedhere.

142. The problem of retroactivity was still being debated by commentators at thistime. See, e.g., R. de Geouffre de la Pradelle, L'affaire Barbie et la compdtence desjuridictions nationales, G.P. Doctrine 131 (1983, ler) (essay); Jo6 Nordmann,L'imprescriptibilitg des crimes contre l'humanitd, G.P. Doctrine 163 (Apr. 23, 1983)(responding to de la Pradelle); and David Ruzid, Limprescriptibilitd en France descrimes contre l'humanitd: un faux problme & propos de l'affaire Klaus Barbie, G.P.Doctrine 229 (June 4, 1983).

143. Once given, the opinion of the Minister of Foreign Affairs, even though unpub-lished, is valid for future cases, at least where the opinion is general and not tied toparticular facts. Id. (Note Ruzi6).

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not benefit from the prescription of the public action,' 44 no matterwhen the crimes had been committed. 145 According to the Rapporteurfor the case (Christian Le Gunehec), this required the Court to acceptthe role that the legislature had apparently ordained for it-to sit asan "international tribunal" and to apply the Nuremberg Charter as amatter of French international criminal law. 146 Thus, almost twentyyears after the adoption of the 1964 law, and more than ten yearssubsequent to the filing of the complaints in the Touvier case, theCourt of Cassation finally ruled that the 1964 law meant what it said:crimes against humanity could be prosecuted in France whatever thedate and place of their commission. 147

Second, the Court interpreted Article 6(c) in order to permitBarbie's trial in France, while at the same time limiting the Nurem-berg Charter's application to any crimes outside the World War IIcontext. Expanding upon the Statute's application, the Court heldthat members of the Resistance could be considered "civilians" for thepurposes of applying provisions regarding crimes against humanity,even though the members of the French Resistance had taken uparms against the Germans. 148 However, the Court restricted the ap-plication of Article 6 (c) by requiring that the perpetrator have anadditional intent to carry out his crime on behalf of a "State practic-ing a hegemonic political ideology." Under this definition, any State(or any group) not practicing a hegemonic political ideology cannotever, as a matter of law, commit a crime against humanity. TheCourt of Cassation thus shielded France (and any other democraticstate) from criminal liability. 149 This was not required by either theNuremberg Charter or by the Judgment of the IMT; rather, it was aneffort by French judges to cabin the application of the 1964 law sothat it applied only to individuals accused of committing crimesunder German influence or direction during the Second World War.It was vigorously critiqued as explicitly shielding the Fifth Republicfrom allegations of war crimes or crimes against humanity committedin Indochina or Algeria. 15

0 Nonetheless, after a sensational trial thatwas widely covered by both the French and international press,Barbie was convicted on July 4, 1987, of crimes against humanity andsentenced to life imprisonment. He died of leukemia, in prison, onSeptember 25, 1991.151

144. Barbie II, supra note 138.145. Id.146. Or, as the French would say, "le droit international p~nal." Barbie I, supra

note 127, D.S. Jur. at 119 (Report of Counselor Le Gunehec).147. Id.148. The ICTY recently relied upon this holding in Prosecutor v. Martid, supra note

46.149. Barbie III, supra note 141, J.D.I. at 153 (Note Edelman).150. See generally YVES BEIGBEDER, JUDGING WAR CRIMES AND TORTURE (2006).151. "Butcher" Barbie Dies in Lyons Jail, TIMES, Sept. 26, 1991.

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The Resumption of the Touvier case

Following Barbie's trial, 152 Touvier was arrested, and an Investi-gating Magistrate, Judge Getti, held that he could be indicted on fiveof the eleven charges then lodged against him, including the massa-cre at Rillieux-la-Pape. 153 On review, in an astounding 215-pagedecision, 154 the Indicting Chamber of the Paris Court of Appealsthrew out the case, finding that the evidence with respect to ten ofthe eleven counts was insufficient to proceed against Touvier. Withrespect to the one crime for which Touvier's involvement was undeni-able (the massacre at Rillieux), the Appeals Chamber found that theprosecution had not proven that the accused had intended to system-atically commit inhumane acts and illegal persecutions in the nameof a State practicing a hegemonic political ideology, 155 because VichyFrance, unlike Nazi Germany, was not a hegemonic state. 156 Thecourt also found that Touvier could not be guilty as an accomplice ofthe Gestapo, finding that Touvier was not carrying out any Germanplan at Rillieux-it was entirely "une affaire entre Franqais" (aFrench affair). 157

The decision of the Paris court provoked a public outcry and waswidely criticized. 158 The historical record showed that the Milicetargeted Jews for abuse, 159 and Touvier himself admitted that the

152. Touvier III, supra note 132, at 20; see also Nouvelle plainte e Lyon contrel'ancien milicien Paul Touvier, LE MONDE, Mar. 21, 1983.

153. The charges are discussed in detail in Sadat, supra note 37, at 347-48 andnotes cited.

154. French court decisions are generally noted for their cryptic brevity, makingthe 215-page decision of the Paris Court of Appeals particularly remarkable.

155. There is no accepted definition of what a "hegemonic" state is, or what theFrench courts intended by the use of this term. For an analysis of the decisions in theBarbie and Touvier cases discussing this criterion, see Sadat, supra note 37, at 359-61.

156. Touvier III, supra note 132, at 206. For example, the court opined that none ofMar6chal Petain's speeches contained anti-semitic remarks.

157. Touvier III, supra note 132, at 209.158. Seventy-three percent of French men and women reported that they were

"shocked" by the decision. 73% des Franqais sont "choquds" par le non-lieu, LE MONDE,April 17, 1992. A document entitled "nous accusons" (after Zola's J'accuse) was signedand published by 188 famous personalities accusing the three appeals judges of amiscarriage of justice. Apr~s le non-lieu accord6 1 Touvier, Nous Accusons,L'EVENEMENT DU JEUDI, May 7-13, 1992, at 22. Conan & Lindenberg speak of thegeneral "stupefication" of the public in reading the decision. Pric Conan & DanielLindenberg, Que ,Faire de Vichy? in ESPIRIT, May 1992, at 6. See also TH9O KLEIN,OUBLIER VicHy? A PROPOS DE L'ARRT TOUVIER (1992). The French National Assem-bly denounced the verdict. Pascale Robert-Diard, Le Parti de lindignation, LE MONDEApril 16, 1992, at 8. See also Michel Mass6, L'affaire Touvier: L'6chappde belle, REV.SCI. CRIM. 372 (1993).

159. See MARRUS & PAXTON, supra note 84, at 3-5, 12 (Vichy passed laws on theJews ("le statut des juifs") prior to any German dictate on the subject, and in fact"Vichy mounted a competitive or rival antisemitism rather than a tandem one" :Vichy wanted to keep Jews out and the Germans to dump them in the occupied zone).See also generally KLARSFELD, supra note 84, and Weisberg, supra note 84, at 1375-77.

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Milice carried out the Rillieux massacre under German orders. In-deed, this was his principal defense. Touvier is convicted

On November 27, 1992, the Court of Cassation reversed theParis Court of Appeals, in part,160 and found that because the crimi-nal acts committed at Rillieux had been accomplished at theinstigation of the Gestapo, Touvier could be convicted under Article 6of the Nuremberg Charter, as he had acted "in the interests of theEuropean Axis countries. 161 Thus the Court was able to avoid holdingthat the 1964 law was only applicable to Germans, without simulta-neously calling into question the Vichy regime and its responsibilityfor crimes committed during the war. The case was remanded,Touvier was indicted for the massacre at Rillieux,1 62 and on April 20,1994, after a sensational, month-long trial, Touvier was convicted of"complicity to commit crimes against humanity."1 63

The Prosecution of Maurice Papon

If Touvier's case tested the capacity of the French courts to applythe Nuremberg principles to their own citizens, the Papon caseproved even more difficult. On October 20, 1942, four armed law en-forcement officers, two French and two Germans, had arrived at thehome of the Slitinsky family in Bordeaux, France. They had come toarrest the Slitinskys as part of a larger operation in which the Jewsof the Bordeaux region were to be arrested, interned, and their prop-erty confiscated.164 Michel Slitinsky, then seventeen years old,escaped. His father, Abraham, and sister, Alice, were less fortunate.

160. Judgment of Nov. 27, 1992, Cass. crim., 1993 J.C.P. II G, No. 21, 977 [herein-after Touvier IV]. Subsequent citations are to the entire unpublished decision as filedwith the clerk of the court, which is on file with the author.

161. Id. at 47. Of course, the Court of Appeals really did not say this-it, in fact,argued that it was a "French affair."

162. Judgment of June 2, 1993, Cour d'appel de Versailles, Premiere chambred'accusation 31 [hereinafter Touvier V]. For an analysis of the June 2 indictment, seeSadat, supra note 37, at 351-53. Interestingly, the court referred to "governmental orstate policy of exterminations and persecution" (emphasis added). Query whether thischoice of words was deliberate, representing a disagreement with the Court of Cassa-tion, or whether it was unintentional. Because the Court found that Touvier was anaccomplice of the Gestapo, it did not address the question whether the Milice and theVichy Government could also be so considered. Touvier V, at 34.

163. See Sadat, Reflections, supra note 126, for a description and analysis ofTouvier's trial. See also ERic CONAN & HENRY Rousso, VicIY, UN PASSE Qui NE PASSEPAS 109-72 (1994); AAIN JAKUBOWICZ & RENA RAFFIN, ToUVIER HISTORIE DU PROCtS(1995); ARNO KLARSFELD, TOUVIER, UN CRIME FRAN(CAIS (1994); JACQUES TRtMOLET DEVILLERS, L'AFFAiRE ToUVIER, CHRONIQUE D'UN PROCES EN ID90LOGIE (1994). Touvierappealed his conviction and lost. Judgment of June 1, 1995, Cass. crim.

164. Ultimately, the Jews of Bordeaux captured by French or German authoritieswould, for the most part, be sent by train from the Mdrignac prison camp in the southof France to a larger prison camp Drancy, in the north, and finally to Auschwitzwhere they would be exterminated.

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They were arrested and Abraham was sent to Auschwitz where hedied. 165

Nearly forty years later, archives were discovered that revealedthe role of Maurice Papon, a high ranking civil servant who was theGeneral Secretary for the Gironde Prefect, in the arrest of the Slitin-skys. Indeed, the twenty-six volumes of evidence collected by theinvestigating judges implicated Papon in the deportation of almost1,600 Jews from Bordeaux. Although not a policy-maker himself,Papon was apparently a highly efficient bureaucrat with authorityover "Jewish questions" in the Gironde. He supervised the compila-tion and maintenance of lists of Jews (which were periodicallyforwarded to the Germans), organized roundups of Jews, and pro-cured transportation and police surveillance for the convoys.

Numerous victims of the mistreatment, or their surviving rela-tions, filed criminal charges against Papon and others alleging thathe had committed a crime against humanity under the 1964 law. Af-ter the tortured road traveled by the Barbie and Touvier cases, manyfeared that the Papon case would never be heard. Although the docu-mentary evidence against him was damning, as a white collardefendant Papon's case seemed more difficult than Touvier's bothfrom a legal (given the earlier case law) and a political perspective. 166

For one thing, after the war Papon's public image was (unlikeTouvier's) completely rehabilitated. Indeed, while Touvier went intohiding, Papon's career flourished. Called by de Gaulle to public ser-vice based on his resistance credentials (the bona fides of which werehotly contested during his trial), he rose through the civil serviceranks to become Prefect of Police for the city of Paris in 1958, a mem-ber of Parliament in 1968, and Budget Minister in the government ofRaymond Barre in 1978. For another, Papon does not, unlike

165. Information regarding the Slitinsky case as well as the other cases involved inthe Papon case can be found in the opinion of the Court of Appeals of Bordeaux, In-dicting Chamber, Decision of Sept. 18, 1996. See Papon I, infra note 166. See alsoMICHEL SLITINSKY, L'AFFAIRE PAPON (1989).

166. It is worth noting that former French President Francois Mitterrand recentlyadmitted that he had asked the French government to delay pursuit of several othersuspected World War II collaborators, in particular Ren6 Bousquet and MauricePapon, both of whom were much higher in the Vichy hierarchy than Touvier. Sadat,Reflections, supra note 126, at 198-99. Bousquet was assassinated in 1993, before hecould be indicted, and a preliminary indictment was issued in Dec. 1995, thirteenyears after the investigations began, into the wartime activities of Maurice Papon.Papon was finally indicted in September of 1996, and his indictment confirmed onJan. 23, 1997. Judgment of Sept. 18, 1996, Chambre d'Accusation de la Cour d'Appelde Bordeaux (unpublished) [hereinafter Papon I], affirmed Judgment of Jan. 23, 1997,Cass. crim., 1997 Juris-Classeur P~riodique [J.C.P.] II G, No. 22812 note Robert[hereinafter Papon III. On the Papon affair, see generally Laurent Greilsamer, Mau-rice Papon, la vie masquge, LE MONDE, Dec. 19, 1995. In a moving speechcommemorating the roundup at the vlodrome d'iver, in 1995 President JacquesChirac admitted France's responsibility for the abuses that occurred during the Vichyregime. Une dette imprescriptible, LE MONDE, July 18, 1995, at 6.

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Touvier, appear to have been explicitly anti-semitic; rather, the anti-semitism of Papon was manifested by his apparent indifference to thefate of those whose deportation orders he signed.

In a 170-page decision (arrt de renvoi)16 7 confirmed by the Courtof Cassation on January 23, 1997,168 the Indicting Chamber of theBordeaux Court of Appeals indicted Papon for complicity in crimesagainst humanity. Remarkably, the opinion condemned not justPapon, but the entire bureaucratic apparatus used in the "adminis-trative massacre"' 6 9 of the Jews of France. The opinion is alsointeresting in its response to Papon's defenses. Papon's primary con-tention was that he was just doing his job and that he did not knowwhat would happen to the deportees. The court forcefully rejectedthis argument. According to the court's opinion, "everyone knew"what was happening (and particularly someone as well-educated andwell-placed as Papon) given the news reports at the time and the per-sonal accounts of Jews who had escaped from the East, and who hadsought refuge in France. Reviewing the available evidence, the courtultimately concluded that:

Maurice Papon ... had, even prior to taking office, aclear, reasoned, detailed, and continuous knowledge of theNazi's plans to murder these people, constituting premedita-tion, even if he may have been ignorant of the exactconditions of their last sufferings and the technical meanswhereby they were killed. 170

The indicting chamber also rejected any defense of duress, findingthat the pressures brought to bear upon civil servants were not of anintensity that would have negated Papon's free will. The defense'sreliance on claims of superior orders and subordinate responsibilitywere equally unfruitful. As the court notes, the orders given weremanifestly illegal. 171 Indeed, the court suggested more than once thatthe appropriate response of Papon to Nazi (or Vichy) pressure shouldhave been to resign.

The trial of Maurice Papon defeated all expectations. After thearrt de renvoi, the trial's outcome seemed like a foregone conclusion:

167. The arr& de renvoi is the functional equivalent of an indictment in a commonlaw system, and is also known by the term "acte d'accusation."

168. Papon II, supra note 166.169. The term is Mark Osiel's. Mark J. Osiel, Ever Again: Legal Remembrance of

Administrative Massacre, 144 U. PA. L. REV. 463 (1995).170. Papon I, supra note 166, at 140.171. The court also noted that the order given from London on January 8, 1942,

which told French civil servants to remain at their posts but to impede insofar aspossible the orders of the German occupants, did not exonerate Papon, for this "ordrede mobilisation" could not serve to justify operations resulting in deportations. TheCourt of Cassation confirmed this holding in its opinion of January 23, 1997. See LeilaNadya Sadat, The Legal Legacy of Maurice Papon, in THE PAPON AFFAIR (Richard J.Golsan ed., 2000).

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it would have to be life imprisonment. That was the sentence PaulTouvier received for ordering the murder of seven men at Rillieux;surely the deportation and ultimate death of more than one thousandsouls warranted the same. But from the outset, the trial surprised.From the opening day of October 8, 1997, Papon ably defended him-self, and his lawyer proved more than capable of the same. Incontrast, the lawyers for the civil parties were often in disarray.Papon requested, and received, his liberty for the duration of thetrial.17 2 His illness caused the trial to be recessed several times. 173

Finally, after more than six months had elapsed, the trial con-cluded with a demand for twenty years imprisonment from theProsecutor. 174 On April 2, 1998, after nineteen hours of deliberation,the jury rendered its verdict: ten years imprisonment. 1 75 Convictionon the charges of complicity with respect to the arrests and deten-tions of some of the victims; acquittal on all the charges of murder.Although the court's reasoning is unclear, it essentially held that al-though the accused could be said to have known of the cruel fate(even death) that awaited the deportees, his knowledge did not rise tothe level of premeditation. With respect to the arrests and detentions,however, these could be qualified as crimes against humanity be-cause they were being carried out as an integral part of a Nazi plan ofwhich he had knowledge. In other words, the judgment was acompromise.1 76

In September 2002, after he requested and was denied a Presi-dential pardon, 177 Papon was released from prison on medicalgrounds, just three years into his ten-year sentence. 178 Although theruling by the appeals court ordering Papon's release did not reversehis conviction, it came as a shock to some of the victims and theirfamilies: "It was like a second death for our dead," said Juliette

172. Pascale Nivelle, Papon ouvre son proc~s en demandant la libert6, LIBERATION,Oct. 9, 1997 (last visited May 21, 1998), <http://www.liberation.com/papon/proces1009.html>; Jean Michel Dumay, L' 6tat de sant6 de Maurice Papon pesera surla suite du procs, LE MONDE, Oct. 11, 1997; ERIC CONAN, LE PROCkS PAPON, UN JOUR-NAL D'AUDIENCE, 12-21 (1998).

173. Conan, supra note 158, at 317-20.174. Jean-Michel Dumay, Vingt ans de rdclusion criminelle sont requis contre Mau-

rice Papon, Le Monde, Mar. 21, 1998; Pascale Nivelle, Tout ga pour announcer vingtans... LIBERATION, Mar. 21, 1998.

175. Craig R. Whitney, 10-Year Term Ordered for War Crimes, INT'L HERALD TRIB.,Apr. 3, 1998, at 1.

176. Papon denounced the verdict in a forty minute speech to the court issued atthe end of the verdict. Jean-Michel Dumay, Pourquoi moi? D'un coupable ddsigng,deviendrais-je un symbole ndcessaire?, LE MONDE, April 3, 1998, at 7.

177. Emmanuelle R~ju, Jacques Chirac refuse la grdce de Maurice Papon, LACROIX, Oct. 8, 2001.

178. An appeals court freed Papon, then ninety-two years old, in consideration ofPapon's advanced age and ill-health, basing its decision on a March 2002 law allowingfor the early release of sick and aged prisoners. Elaine Ganley, Vichy-Era Convict isFreed, and French Complicity Revisited, ST. Louis POsT-DISPATCH, Sept. 29, 2002, atA15.

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Benzazon, who lost fourteen relatives (including her parents), someof whom were shipped to extermination camps on orders signed byPapon. 179 On June 11, 2004, more than six years after the originalverdict, the Court of Cassation rejected a final appeal by Papon. In itsdecision, the Court of Cassation ruled that a retrial was not war-ranted, ending the last appeal that Papon had in the case. i80 Papondied on February 17, 2007, his death as controversial as his life hadbeen.' 81 In the words of Dominque Molsi, commenting upon Papon'sdeath in the International Herald Tribune, Papon, was the "anti-Schindler," Vichy's faithful servant, who was "judged and condemnedby the court of history and the court of men."18 2

IV. A NEW ERA OF ACCOUNTABILITY

A. Crimes Against Humanity and Genocide in the Courts after1992

The French experience following World War II suggests the diffi-culties faced by municipal courts in applying international law as amatter of course. Both national politics and inexperience get in theway. Indeed, it is particularly difficult for national courts to punishwrongdoers from their own government for war time atrocities andpolitics was evident in the decisions involving Touvier, Papon, andBarbie. At the same time, the French courts established a sophisti-cated and well-developed jurisprudence in this difficult area of thelaw. The convictions of Touvier and Papon were deeply significant toFrench society, both to the victims of their crimes and as symbols ofhope to victims of such crimes elsewhere. As Henri Glaeser, the son ofone of Touvier's victims, stated to the jury during Touvier's trial:

Remember the last photograph [of my father], taken atRillieux, his mouth wide open .... For years and years, Ihad the impression that someone wanted to pour concrete inthere, to stop him from speaking, to stop me as well. Now Iam happy to find myself in front of a court that is demo-cratic, engaged in an adversarial debate where everyone can

179. Id. But see the interview with Robert Badinter, former Minister of Justice,supporting Papon's release. Jean-Marie Gu~nois, Aptes-vous toujours pour la libdrationde Papon?, LA CROIX, March 12, 2001, at 3.

180. Nazi collaborator's final appeal denied, CHICAGO TRIBUNE, June 13, 2004, at 9.The case had earlier been heard by the European Court of Human Rights which ruledin favor of Papon on certain procedural points, but did not ultimately affect theoutcome.

181. Papon was stripped of his decorations as a result of his conviction, includingthe Legion d'Honneur. He remained ever-defiant, however, and was fined in 2004 forwearing it during an interview with Le Point. His lawyers argued that he was entitledto be buried with his decorations, Maurice Papon, Obituary, THE TIMES, Feb. 19, 2007,creating consternation among victims groups.

182. Dominque Moisi, Meanwhile: Papon, the 'Anti-Righteous,' INT'L. HER. TRIB.,Feb. 27, 2007.

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speak, anything can be said, even by the accused. My fatherwas not judged by anyone. He was arrested, thrown fivehours later against a wall, and assassinated.18 3

Moving beyond the atrocities of World War II, France faced addi-tional legal and political questions and issues as it began to addressinternational crimes in a broader, global context. If the immediatepost-World War II cases were uniquely French both in jurispruden-tial style and impact, the cases decided in the 1990s under morerecent French legislation have been occurring elsewhere as well, asmany countries have been domesticating international criminal law(such as the Pinochet litigation in England and Spain). Moreover, theestablishment of two functioning international criminal tribunals inthe mid 1990s, the ICTY and the ICTR, situated the French courtswithin a global system of international justice containing both na-tional and international components. These more recent casesindicate the important role France has increasingly accepted in en-forcing international criminal law. Yet, there is no doubt that politicshas played a role in edging out law on more than one occasion, partic-ularly as regards the increasingly contentious issue of Frenchliability for acts in the Algerian war, and the realpolitik of Frenchdiplomacy, whereby individuals accused of war crimes, torture, andcrimes against humanity have been shielded by the French govern-ment from prosecution before French courts.' 8 4

The 1992 Law

The French legislature adopted a new "crimes against humanity"law in 1992,185 which abandoned the "hegemonic state" requirement.Additionally, the law provides that members of a resistance move-ment, as well as civilians targeted on the basis of their religion orsome other feature, may be the victims of a crime against humanity,codifying the Court of Cassation's jurisprudence in the Barbiecase. 186

183. Laurent Greilsamer, Le procs de Paul Touvier devant la cour d'assises desYvelines: "mon pore, lui, on ne l'a pas jugd . . ." LE MONDE, Apr. 10, 1994, at 13.

184. BEIGBEDER, supra note 150, at 26-29 (describing French efforts to shield Gen-eral Khaled Nezzar of Algeria and Denis Sassou Nguesso, Congo's President, for hisrole in the Brazzaville massacre (Congo)).

185. Law of July 22, 1992. The text of the new law is set out in Annex IV of Sadat,supra note 37, at 379-80. See Francillon, supra note 126, 53-54; Desportes & LeGunehec, Presentation des dispositions du nouveau Code Pdnal, 1992 J.C.P. I G, No. 3,615 n.102. The new law took effect on Mar. 1, 1994 and applies to crimes committedafter that date. Law No. 92-1336 of Dec. 16, 1992, art. 373, modified by Law No. 93-913 of July 19, 1993.

186. Grave breaches (war crimes) are apparently not punishable as crimes againsthumanity, however, under the new law. Elisabeth Zoller, La definition des crimescontre l'humanitg, 1993 J.D.I. 549, 567.

188 [Vol. 58



The French Prosecution of International Crimes in Recent Years

Following the adoption of the 1992 law, several interesting casesbrought before French courts have demonstrated the challenges fac-ing the exercise of universal jurisdiction over international crimes byFrench courts. In particular, limitations regarding the presence ofthe accused on French territory as well as the recognition of immuni-ties granted by international law reflect France's seeming reluctanceto extend its judicial control in such cases despite its desire to prose-cute grave human rights abuses and violations of internationalhumanitarian law.18 7

There is now a rich jurisprudence in this area which cannot beexplored in the short space of this Article. Instead, I will examineonly the cases that have shaped the French approach to the exerciseof universal jurisdiction over war criminals. In the Javor case, Bos-nian citizens who were refugees residing in France filed a complaintagainst non-disclosed parties for crimes of torture, genocide, andcrimes against humanity.18 8 The plaintiffs claimed to be victims ofcrimes committed by Serb forces as part of the policy of ethnic cleans-ing taking place in the town of Kozarac and surrounding villages aswell as in the detention camps of Omarska, Trnopolje, and Ker-aterm.18 9 At the time of the complaint, there was no indication thatthe alleged perpetrators of these acts were present in France. None-theless, the investigating magistrate (Judge Getti), ruled that therewas jurisdiction over the case under the Torture Convention and theGeneva Conventions of 1949 for war crimes. 190 (Recall that JudgeGetti was also responsible for bringing the original indictmentagainst Paul Touvier in 1991.) Judge Getti essentially interpretedthe scope of judicial powers implied by universal jurisdiction broadly

187. Article 689 provides that "the authors or accomplices of offenses committedoutside the territory of the Republic can be sued in the French courts and be judgedby them ... whenever an international convention grants jurisdiction to the Frenchcourts." [English translation available in Stern, infra note 190, at 528.]

188. Trial Watch, Affaire Elvir Javor, http://www.trial-ch.org/fr/trial-watch/pro-file/db/facts/affaire-elvir-javor_1l.html (last visited Nov. 26, 2007).

189. Rafaclle Maison, Les premiers cas d'application des dispositions pdnales desConventions de Genve par les juridictions internes, 6 EUR. J. INT'L L. 260, 261 (1995);and Trial Watch, Affaire Elvir Javor, supra note 188.

190. Brigitte Stern, Universal jurisdiction over crimes against humanity underFrench law-grave breaches of the Geneva Conventions of 1949-genocide-torture-human rights violations in Bosnia and Rwanda, 93 Am. J. INT'L L. 525, 526 (1999);Trial Watch, Affaire Elvir Javor, supra note 188. For additional general discussion ofthe Javor case, see also Jean-Franqois Roulot, La rdpression des crimes contrel'humanitg par les juridictions criminelles en France: une rdpression nationale d'uncrime international, 3 REV. sc. CRIM. 545, 560-61 (1999).

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so as to permit preliminary acts of inquiry1 9 1 even without prior con-firmation of the presence of the accused on French territory. 19 2

In two decisions vociferously criticized by human rights groupsand some scholars, both the Court of Appeals and later the Court ofCasssation rejected this interpretation in favor of a narrower con-struction of French judicial power.19 3 Both higher courts held thatunder Articles 689-1 and 689-2 of the French code of criminal proce-dure, French jurisdiction could not attach without the presence of thealleged perpetrators on French territory when the case is filed. 19 4 Be-cause there was no evidence that the alleged perpetrators had beenpresent on French territory at the outset of the case, 19 5 both theCourt of Appeals and the Court of Cassation held that the case couldnot be heard.1 96

In contrast to Javor, French courts upheld the exercise of univer-sal jurisdiction in the case against Wenceslas Munyeshyaka, anindividual accused of crimes committed during the Rwandan geno-cide, because he was found in France when the initial complaint wasfiled. The plaintiffs in this case alleged that between April and May1994, Munyeshyaka, while acting as priest at the church of The HolyFamily in Kigali, contributed to the genocide by the Hutu militiasand members of the Rwandan armed forces against the Tutsi by de-priving Tutsi refugees of food and water, surrendering the refugees tothe Hutu militia, participating in the selection of Tutsi refugees to bemurdered, and coercing women into having sex with him in exchangefor saving their lives. 19 7 On July 25, 1995, an investigation wasopened against Munyeshyaka for genocide, crimes against human-ity.198 The Tribunal held that it had universal jurisdiction under theTorture Convention,' 9 9 but the Court of Appeals of Nimes re-versed.20 0 The Court of Appeals concluded that jurisdiction must beestablished only on the basis of the "highest" (most serious) offense,

191. Preliminary acts including identification of the suspect and determination ofthe appropriate charges so that an alleged perpetrators could be arrested if present inFrance or extradited to face charges.

192. See ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 288 (2003).193. Id.194. Cass. crim., Mar. 26, 1996, Bull. crim., No. 132, at 379.195. Stern, supra note 190, at 527.196. As an example of how the French jurisprudence is "co-constitutive" of interna-

tional law, note that French judge Guillaume relied upon French case law (as well asopinions from other jurisdictions) in his important separate opinion in Congo v.Belgium (Yerodia), arguing that Belgium could not exercise universal jurisdiction "inabsentia" under international law. Case Concerning the Arrest Warrant of April 11,2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 63 (Separate Opinionof President Guillaume, at paras. 9 & 12).

197. Id. Trial Watch, Wenceslas Munyeshyaka, http://www.trial-ch.org/fr/trial-watch/profile/db/facts/wenceslas munyeshyakajll2.html (last visited Nov. 26, 2007).

198. Id.199. Stern, supra note 190, at 528.200. Id.

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which in this case was genocide. Because in its view, the Frenchcourts had no universal jurisdiction over the crime of genocide, theFrench courts had no jurisdiction to adjudicate regarding events thathad taken place in Rwanda. Two days later on May 22, 1996, a newlaw (Law No. 96-432) was adopted to adapt French law to SecurityCouncil Resolution 955 creating the International Criminal Tribunalfor Rwanda. This new law provided for universal jurisdiction over ge-nocide, and jurisdiction over the Munyeshyaka case was affirmed bythe Court of Cassation in 1998.201 On June 21, 2007, the ICTR pub-lished an arrest warrant for Munyeshyaka as well a as a warrant forLaurent Bucyibaruta, 20 2 who was also residing in France and alreadyunder formal investigation by French authorities for alleged crimescommitted during the Rwandan genocide. 20 3 Indeed, on November20, 2007, the ICTR referred both cases to French judicial authori-ties.204 On February 20, 2008, the French judiciary accepted thereferral, thus clearing the way for the eventual trials of Munyeshy-aka and Bucyibaruta. 205

The imposition of the presence limitation on the exercise of uni-versal jurisdiction is problematic to the extent that 20 6 it preventsprosecutors or investigating judges even from investigating crimesabroad unless, as illustrated in Munyeshyaka, the suspect is present

201. Cass. crim., Jan. 6, 1998, Bull. crim., No. 2, at 3 [hereinafter Munyeshyaka I].

202. Bucyibaruta was the former prefect of the Rwandan province of Gikongoro.The ICTR indicted him on six counts including direct and public incitement to commitgenocide, genocide, complicity in genocide, and the crimes against humanity of exter-mination, murder, and rape. Prosecutor v. Bucyibaruta, Case No. ICTR-2005-85-I,Indictment (June 16, 2005). At the time of the release of the ICTR arrest warrant forBucyibaruta, he was already the subject of a criminal investigation in France for ge-nocide and crimes against humanity. See Trial Watch, Laurent Bucyibaruta, http:/!www.trial-ch.org/fr/trial-watch/profil/db/egal-procedures/laurent-bucyibaruta-653.html (last visited Feb. 22, 2008); La F~ddration internationale des ligues des droits del'Homme, France should arrest Wenceslas Munyeshyaka, Laurent Bucyibaruta andDominique Ntawukuriryayo immediately, June 7, 2007, http://www.fidh.org/article.php3?idarticle=4467. Like in the case of Munyeshyaka, the French judiciary deter-mined that Bucyibaruta could be tried on the basis of the universal jurisdiction of itscourts. Id.

203. Trial Watch, Wenceslas Munyeshyaka, http://www.trial-ch.org/en/trial-watch/profile/db/legal-procedures/wenceslas munyeshyaka_112.html (last visited Feb. 22,2008).

204. Id.205. Id. For other cases involving the Rwandan genocide in France, see Complaint,

Kalinda et al. (T.G.I. Paris filed July 4, 1994); Complaint, Depaquier et al. (filed July19, 1994), T.G.I. Paris, Order, Feb. 23, 1994 (noted in Stern, supra note 190, at 527).For discussion of the Javor, Munyeshyaka, and Kalinda cases, see also Michel Mass6,Ex-Yougoslavie, Rwanda: Une compdtence 'virtuelle' des juridictions frangaises? REV.SC. CRIM 893 (1997).

206. See, e.g., Claude Lombois, De la compassion territoriale, REV. Sc. CRIM. 399(1995); Brigitte Stern, La compdtence universelle en France: le cas des crimes commisen ex-Yougoslavie et au Rwanda, 40 GER. Y.B. INT'L 280 (1997); Maison, supra note189.

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upon French territory and readily identifiable. 20 7 Yet France is farfrom unique in its squeamishness as regards cases of "pure" univer-sal jurisdiction. Note also that under French law, trials in absentiaare possible (raising other concerns), meaning that even if a defen-dant subsequently flees French territory, a criminal action mayproceed in his absence.20

Another limitation placed upon France's exercise of universal ju-risdiction results from France's application of immunity for personsacting in their official capacity, as illustrated by the Kadhafi affair.Plaintiffs Beatrice de Boery and a victim's organization known asS.O.S. Attentats implicated Colonel Muammar Kadhafi in the 1989attack on a UTA DC 10 aircraft which blew up over the Tener6 de-sert, causing the death of 156 passengers and 14 crew members. 20 9 Aformal investigation into the attack began September 23, 1989.210 In1999, six Libyan citizens 211 were convicted and sentenced in absentiato life imprisonment for their role in the attack.212 The investigatingmagistrate ruled that there were sufficient grounds to investigate thecomplaint filed against Kadhafi, a ruling that was subsequently af-

207. Amnesty International, infra note 208, at 87. According to Professor BrigitteStern, the Court of Cassation "could have relied on Article 689 and considered thatthe Geneva Conventions are precisely the type of convention referred to by this arti-cle, as they provide directly for universal jurisdiction." Stern, Grave Breaches, supranote 190, at 529.

208. This occurred in Ould Dah, a case involving an intelligence officer of theMauritanian army who had allegedly ordered acts of torture to be carried out againsttwo black Mauritanian soldiers and participated in these acts. The two victims, whohad since become political refugees in France, filed a complaint against Dah, with thesupport of the Federation internationale des droits de l'homme (FIDH) and the Liguedes droits de l'homme (LDH) and further supported by the Human Rights Associationof Mauritania and the Association of Mauritanian Victims. On July 2, 1999, Dah wasarrested in Montpellier, France while attending a training program at a militaryschool. However, on April 5, 2000, Dah escaped and fled to Mauritania; on May 25,2001, the French investigating magistrate ordered that Dah be sent before the Courtof Assizes to be tried despite his physical absence. Dah was tried in absentia, and onJuly 1, 2005, the Court of Assizes found Dah guilty of torture committed directly,ordered or organized by him at the Jreida death camp. He was sentenced to ten yearsin prison, the maximum term. See Trial Watch, Ely Ould Dal, available at <http://www.trial-ch.org/fr/trial-watch/profile/db/facts/ely-ould-dah_266.html>. See also Am-nesty International, "Investigation of Mauritanian army officer accused of torture-astep towards truth and justice," AI Index: AFR 38/03/99, 5 July 1999 [hereinafterAmnesty International, Investigation].

209. Among the victims was Laurence Penon, sister of civil plaintiff Beatrice deBoery. Cour d'appel Paris, Oct. 20, 2000, available at https://www.asser.nl [hereinaf-ter Kadhafi 1].

210. Id.211. The individuals prosecuted for the attack included Abdallah Senoussi, Colonel

Kadhafi's brother-in-law and a highly-placed official in the Libyan secret service;Ibrahim Naeli, Arbas Musbah, Abdelsalam Issa Shibani, Abdelsalam Hammouda, allfour of whom are officers of that service; and Ahmed Abdallah Elazragh, a ForeignAffairs Department employee, working at the Libyan embassy in Brazzaville.

212. The defendants were tried and convicted of the charge of "murder and de-struction of property by an explosive substance causing death, in connection with aterrorist enterprise." Kadhafi I, supra note 209.

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firmed by the Court of Appeals on October 20, 2000,213 referring tothe judgments of other courts in the Pinochet and Noriega cases, in astriking example of transjudicial dialogue. 214 Nonetheless, invokinghead-of-state immunity, the Court of Cassation reversed. 215 Follow-ing the Kadhafi affair, France has consistently upheld the principleof immunity for persons acting in their official capacity who arecharged with serious offenses including torture and crimes againsthumanity. 216 Yet as noted by the Court of Appeals in Kadhafi, al-though there is a tradition of recognizing such immunities, recentactions and judgments in the international community suggest thatadherence to diplomatic customs increasingly cannot or will not takeprecedence over the prosecution of grave violations of internationallaw. Certainly with regard to international crimes, amnesties have,at least in international and transnational prosecutions, been sub-stantially eroded, although the picture is much more complex asregards immunities. 217

B. France's Ratification of the International Criminal CourtTreaty

France was the twelfth State to ratify the Rome Statute of theInternational Criminal Court. The negotiation and adoption of theInternational Criminal Court treaty was one of the most extraordi-nary juridical events of the twentieth century,218 and has given riseto both extraordinary optimism and controversy. The establishmentof the Court would not have been possible without a remarkablechange in the political climate and the successful establishment ofthe ICTY and ICTR. The rise of an international NGO movement

213. Kadhafi I, supra note 209.214. Id. (referring to the decision of the House of Lords in the extradition proceed-

ings against General Pinochet, and the prosecution of General Noriega, an actinghead of State, by the United States for drug trafficking).

215. Cass. crim., Mar. 13, 2001, No. 00-87215 (Legifrance) (Cass. crim., Mar. 13,2001, Bull. crim., No. 3.) [hereinafter Kadhafi II]. For discussion of the Kadhafi case,see La coutume du droit international pdnal et l'affaire Kadhafi, D.JUR. 2001, No. 32,Somm. 2631-3, Jean-Francois Roulot.

216. A complaint was filed against Jean Francois Ndengue, chief of the NationalPolice of the Republic of Congo for crimes against humanity, enforced disappearances,and torture led to an indictment and preliminary arrest of Ndengue in April 2004.The Court of Appeals ultimately held that Ndengue was entitled to immunity becausehe held a valid diplomatic passport and was on an official visit to France. In February2003, a Paris magistrate issued a warrant for the arrest of Zimbabwean PresidentRobert Mugabe on charges of torture when Mugabe was visiting France for a Franco-African summit. However, a French court ruled that Mugabe was entitled to immu-nity as a sitting head of state. Several additional cases are summarized in HumanRights Watch, Universal Jurisdiction in Europe: The State of the Art, vol. 18, no. 5(D)(June 2006): 57.

217. See Leila Nadya Sadat, Exile, Amnesty, and International Law, NOTRE DAMEL. REV. 81 (2006).

218. LEILA NADYA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFOR-MATION OF INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENNIUM (2002).

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able to observe and influence the treaty process using instantaneouselectronic communications was no doubt another factor, and manyhave pointed to civil society as a key factor in pushing France, as wellas other countries, towards supporting the ICC. Yet in examiningFrench support for the Court, it is undeniable that decades of intel-lectual preparation and years of experience with prosecutions ofcrimes against humanity have influenced the outcome. Althoughthere was little doubt that France would ratify the Statute, its sup-port for the Court had not been a foregone conclusion during theTreaty's negotiation. But it is perhaps the reaction to the decision ofthe French Constitutional Council (Conseil Constitutionnel) that willmost astonish, especially U.S. observers.

Recall that the Constitutional Council held that the Statute'sratification required prior amendment of the French Constitution. 219

The Constitutional Council found that Article 27 of the Rome Statute,which abrogates head of state and other official immunities, was in-consistent with the legal regime set forth in Articles 68, 68-1 and 26of the French Constitution. These provisions contain various immuni-ties for the French President, members of Parliament, and othermembers of the French Cabinet (gouvernement) from criminal prose-cution, and it set forth specific conditions under which suchprosecutions may be brought (such as restricting them to certaincourts). Additionally, the Council found that because the ICC couldbe properly seized of a case in which a domestic amnesty had beenproclaimed by France or in which a French statute of limitationswould have otherwise applied, ratification of the ICC statute wouldinfringe upon important elements of national sovereignty. Finally,the Council stated that a constitutional revision was required be-cause the ICC Prosecutor could, under certain circumstances,conduct investigations without the consent of the interested state.

In response, France amended its Constitution on July 8, 1999 topermit ratification of the ICC treaty.220 The Parliamentary debatesconcerning both the ratification of the Treaty and the amendment ofFrance's Constitution evince a certain preoccupation with the ex-traordinary steps required; but they were virtually unanimous andentirely supportive, even passionate, about the need to put aside nar-row concerns of self-interest and support the International CriminalCourt-in the interest of France, and all humanity. Indeed, Frenchparliamentarians, meeting in a joint session as a "Congress" adoptedthe constitutional amendment permitting ratification by an over-whelming vote of 848 to 6. Likewise, when France's highest

219. CC decision no. 98-408DC, January 22, 1999, J.O. 1317.220. Loi constitutionnelle no. 99-568 du 8 juillet 1999 insdrant, au titre VI de la

Constitution, un article 53-2 et relative A la Cour penal internationale. Article 53-2provides that "The Republic may recognize the jurisdiction of the International Crimi-nal Court under the conditions contained in the treaty signed on July 18, 1998."

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administrative court, the venerable Conseil d'Etat was asked to con-sider the question of ratification, the response was similar. Indeed,there was no serious question raised either by the rapporteur as-signed to study the question, Mme. Sophie-Caroline de Margerie, 221

or by other Counselors of State, as to either the wisdom or the practi-cality of the Treaty's adoption by the Fifth Republic, particularlygiven the unqualified support of both Ministries of Justice and De-fense.222 When the ratification law reached the floor of the FrenchSenate, virtually all those who spoke argued passionately for theTreaty's ratification and of France's pride in being one of the firstcountries to ratify the treaty. Senator Andr6 Dulait, rapporteur forthe Senate Committee on Foreign Affairs, Defense and ArmedForces, rejecting criticism that the Treaty was flawed (boiteux), 223 re-torted that even a lame individual can be moved forward. Like theconstitutional amendment, the adoption of the ratification law waseffectively unanimous. 224

V. THE FRENCH EXPERIENCE AS TRANSNATIONAL LEGAL PROCESS

I have described the evolution of France's approach to interna-tional criminal law and the International Criminal Court asdeveloping in three stages, each one, perhaps causing it to take apath distinct from its American cousin. Stage I represents the earlyexperience with negotiating and participating in the Treaty systemthat evolved after the First World War. Not only did France, unlikethe United States, join the League of Nations, but French jurists, andmany Continental Europeans whose work was well known in France,were advocates of the League and of the establishment of an interna-tional criminal code and court. This established a vibrant epistemiccommunity whose members wrote about and discussed internationalcriminal law as an active discipline, and an important component ofworld order. Their advocacy did not translate immediately into politi-cal reality, but it nevertheless established deep doctrinal foundationswhen the Nuremberg trials took place that gave the conception of in-ternational criminal law a place within formal French legal theory.

The importance of this development is, of course, difficult togauge. Critics of modern international criminal law often bemoan its"undertheorized" nature, to the distress of their more practically

221. Interview with the Rapporteur, May 23, 2006 (author's notes).222. See letter dated Nov. 26, 1999, from Marc Guillaume on behalf of the Ministre

de la D6fense to the Ministre des affaires 6trangbres, confirming the agreement of theMinister of Defense to the ratification of the International Criminal Court Treaty;Letter dated Dec. 2, 1999, from Olivier de Baynast of the Minister of Justice, to theMinistre des affaires 6trangbres, confirming the Justice ministries support for theratification of the Treaty.

223. Literally "lame," but probably better translated as "flawed" for the time being.224. Remarks of Senator Andr6 Dulait French Senate Session of Mar. 22, 2000,

available at http://www.senat.fr/seances/s200003/s20000322/sc20000322004.html.

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minded brethren. But it is certain that the Nuremberg trials wereviewed differently in France than in the United States for political,legal, and cultural reasons. France's largely monist legal system, 225

providing that international treaties are constitutionally superior todomestic law where the two conflict, 226 also meant that the LondonAccord and Charter had a different significance in French law thanthey ever did in the United States, and that the French Parliamentwas able to transpose the Nuremberg Charter's crimes against hu-manity provision into French municipal criminal law with relativeease, leaning both on public international law principles and theoriesof droit international priv-that assign formal status to interna-tional law within the French legal system. That is not to say thatFrench courts do not, "like their American counterparts, strugglewith the appropriate way to give effect to the international legal obli-gations of their nation,"227 for they do. It is also true that ambiguityin Article 55 of the French Constitution meant that French courts didnot always interpret international treaties as having direct effect inthe French legal system, and the Conseil d'Etat initially took the po-sition that it could not examine an act of Parliament enactedsubsequent to an international obligation for its consistency with in-ternational law. Yet, since the decision in the Nicolo case in 1989,reversing this position, it seems fairly clear that the French courtshave moved increasingly towards effectively incorporating treatiesand international agreements into its domestic legal order, and inadapting French law to the decisions of international tribunals.228 Itis probably fair to say that during the same time period, the UnitedStates legal system was being pulled in the opposite direction. 229

(Moreover, with respect to the incorporation of the Nuremberg Char-ter, the French Courts decided even as early as the 1970s, given thesuperiority of the provisions against crimes against humanity, thatthey would prevail over domestic laws to the contrary.) 230 Thus it isperhaps unsurprising that American support for the Nuremberg tri-als did not translate into support for the Nuremberg principles quaprinciples of American law. Rather, they seemed to stand separate

225. Thomas Buergenthal, Self-Executing and Non-Self-Executing Treaties in Na-tional and International Law, 235 RECEUIL DES COURS 303, 346-48 (1992).

226. 1958 CONST. art. 55. (Fr.)227. Martin A. Rogoff, Application of Treaties and the Decisions of International

Tribunals in the United States and France: Reflections on Recent Practice, 58 MAINEL. REV. 406, 433 (2006).

228. Id. at 469.229. Particularly in the late 1990s, there arose a "nationalist" or new American

legal hegemonist school, championed by Jack Goldsmith and Curtis Bradley, whichchallenged conventional positions on the effectiveness and utility of international law,and particularly its constitutional status. See, e.g., Curtis A. Bradley & Jack L. Gold-smith, Customary International Law as Federal Common Law: A Critique of theModern Position, 110 HARv. L. REV. 816 (1997).

230. See supra note 124 and accompanying text.

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2010] THE NUREMBERG PARADOX 197

and apart from U.S. law, being norms applied to foreigners accused ofgrievous injury to the United States and her allies.

But it was not until the second phase-when France actuallyused the 1964 law to prosecute not only Nazis left over from the warbut also Frenchmen for crimes committed on French soil-that theincorporation of the Nuremberg principles "grew legs." The trials ofPaul Touvier and Maurice Papon exposed deep divisions withinFrench society, divisions that had been papered over by a culturethat wanted the trauma of the German occupation and Vichy's collab-oration gone and forgotten. The deportations of the Jews of France,the struggle to resist the Nazi occupation, a struggle that was oftencarried out by too few members of society-these were wounds thatwere deep, and it was feared that public trials of two prominent col-laborators would exacerbate them. Indeed, Frangois Mitterandfamously opined that the Touvier trial would "destroy civil peace,"231

evoking exactly the kind of "justice vs. peace" argument so common inthe current discourse about the utility and benefit of international (ordomestic) criminal prosecutions as measures of accountability for thecommission of atrocities during wartime.

The fact that the trials were largely viewed as both successfuland cathartic-releasing and relieving old tensions and poisonsrather than exacerbating them232-was probably very important inbuilding a French "anti-impunity" culture that would see the ICC asa necessary measure for good world governance, rather than an in-surmountable threat to French foreign policy. Finally, it should benoted that while the French courts, in this second phase of our story,were indeed the medium through which international norms of ac-countability articulated at Nuremberg entered the French legalsystem,233 they were not really engaged in much transnational judi-cial dialogue at all, still, they certainly did see themselves as sittingas members of international society. Counselor ChristianLeGunehec's brilliant report in the Barbie case makes that explicit-rather like federal courts sitting as state courts in diversity cases, theFrench courts seemed quite consciously aware of their role in inter-nalizing and incorporating international law norms and of doing so ina manner faithful to the international origin of the applicable law. Itis thus unsurprising that a 1993 resolution of the French Institute ofInternational Law calls upon national courts to become independent

231. 8ric Conan & Daniel Lindenberg, Que Faire de Vichy?, ESPRIT, May 1992, at7.

232. Leila Sadat Wexler, Reflections on the Trial of Vichy Collaborator PaulTouvier for Crimes Against Humanity in France, 20 LAw & SOCIAL INQUIRY 191(1995).

233. See, e.g., Anne-Marie Slaughter, Judicial Globalization, 40 Va. J.Int'l. L.1103, 1103-04 (2000).



actors in the international arena, and to apply international normsimpartially without deference to their governments. 234

In the third phase of our survey, the French courts and Frenchpolitical elites have clearly been influenced by the establishment ofthe ad hoc war crimes tribunals, the resurrection of the internationalcriminal court project (which began in 1989), and national legislationof other countries as well as other court decisions in elaborating a"French" position on universal jurisdiction, immunities under inter-national law, and the propriety of bringing international criminalprosecutions in French domestic courts. That is most evident in theindictments issued by Judge Getti in the Javor case and the Court ofAppeals decisions in the Kaddafi affair (which were overruled byhigher courts). Perhaps, eager to take their places in the anti-impu-nity transnational legal culture emerging in the 1990s, those lowercourt judges went further than politics would allow and were checkedby the Court of Cassation which was not particularly keen to be outin front of where it perceived international law to be (or perhaps theFrench approach to international law as the court perceived it). TheFrench law of 1992 was the basis for those actions; and that law wasgenerated as much by the French experience with the law of 1964 asby international norm entrepreneurs such as human rights groupsand victims associations encouraging states to criminalize the juscogens crimes of genocide, crimes against humanity, and gravebreaches of the Geneva Conventions. It was also no doubt influencedby what Anne-Marie Slaughter and William Burke-White refer to asthe "European way of law,"235 that is, the far-reaching ability of Eu-ropean Union law (and by extension international law) to transformdomestic law and politics.

Thinking about the French case in terms of Koh's transnationallegal process theory provides an extraordinary opportunity to testthis theory and its application in a real situation. It also tests thetheory's applicability in the comparative context of a norm that is ex-traordinary difficult to enforce: a norm that mandates thepunishment of a country's leaders, even of a head of state, if they areaccused of atrocity crimes. Koh argues that transnational legal pro-cess describes the way in which international law rules are"interpreted through the interaction of transnational actors in a vari-ety of law-declaring fora, then internalized into a nation's domesticlegal system."236 He describes a three-part process of interaction, in-

234. See id., at 1104 (citing Eyal Benvisti, Judges and Foreign Affairs: A Commenton the Institut de Droit International's Resolution on the 'Activities of National Courtsand the International Relations of their States,' 5 EuR. J. INT'L L. 423 (1994)).

235. Anne-Marie Slaughter & William Burke-White, The Future of InternationalLaw is Domestic (or, The European Way of Law), 47 HARV. INT'L. L. J. 327 (2006).

236. Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. REV. 623,626 (1998).

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terpretation, and internalization whereby "international legal rulesbecome integrated into national law" and take on the status of bind-ing rules of domestic law.2 37 Certainly, Koh's analysis fits the Frenchcases described above. The Nuremberg principles were articulated byan international tribunal and adopted by the United Nations; theysubsequently interacted with the French legal system in a fascinat-ing interplay between the courts, the legislature, and what we wouldnow call French civil society; and they were ultimately internalized ina manner that can only be described as extraordinary, giving rise tothe prosecution of high ranking French individuals for crimes againsthumanity, and to the abrogation of head of state immunity for theFrench President in cases that could one day be brought before theInternational Criminal Court. Indeed, the French ICC ratification de-bates suggest not only legal internalization, but political and socialinternalization as well.2 38 The Parliament, the ministries of defenseand justice, and civil society clearly saw Nuremberg's chief premiseas both a legal and moral obligation: that no individual is above thelaw and that committing international crimes subjected all perpetra-tors to prosecution under international law. At the same time, thetrial of Maurice Papon, in particular, exposed the strain of prosecut-ing one's own nationals for such activities and it suggests thatpolitical resistence to future prosecutions might be very strong, re-gardless of the state of the law.

Koh's theory also suggests some reasons why, conversely, theNuremberg principles were never adopted in the United States, eventhough the United States was the leading proponent of the Nurem-berg trials. Although it could be argued that there was interaction oftransnational actors in the guise of the former Nuremberg Prosecu-tors themselves and the work of the United Nations, there was verylittle, if any, activity in the guise of interpretation by either thecourts or other legal actors, and internalization, therefore, took placeto a much lesser degree if it took place at all. Indeed, the legal situa-tion in the United States is in direct contrast to the extensive judicialactivity in France during this period. While the United States ulti-mately ratified the Genocide Convention (in 1988!), adoptedimplementing legislation, 239 and adopted federal legislation criminal-izing grave breaches of the Geneva Conventions in the guise of theWar Crimes Act of 1996,240 these laws post-date the French imple-mentation of the Nuremberg principles by more than two decades.Moreover, the United States has never adopted a crimes against hu-

237. Id.238. Id. at 642.239. Genocide Convention Implementation Act of 1987 (The Proxmire Act), Pub. L.

No. 100-606, 102 Stat. 3045 (1988) (codified at 18 U.S.C. § 1091 (1988)).240. War Crimes Act of 1996, Pub. L. No. 104-192, 110 Stat. 2104 (1986) (codified

at 18 U.S.C. § 2441 (1996)).

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manity statute, and the Genocide Implementation Act initiallyprovided for jurisdiction only if the crime takes place in the UnitedStates or a U.S. person is the perpetrator.241 This law, adopted by theSenate in 1986 with a vote of 83 ayes to 11 noes, remained controver-sial during the negotiations with Senators arguing that extensivereservations to the treaty were necessary so as "not [to] compromiseour constitutional form of government in the process." 24 2

While Koh's theory beautifully illuminates, then, the reason forthe dismal compliance of the United States with the Nuremberg prin-ciples, it does not provide evidence of causation. That is,transnational legal process theory can demonstrate why the UnitedStates now seems to be behind its European cousin in the implemen-tation and application of international criminal law; but it cannotprovide us with the underlying explanation of the reasons that is thecase. For that answer, we must explore, among other things, the"deep structure" of U.S. law to understand why America, unlikeFrance, appeared unable to adopt mechanisms to interpret theseprinciples and, ultimately, to internalize them. This, of course, iswhere legal culture fits in. For as this survey has shown, and as PartVI, below, explains further, while the United States and France sharemany common values with respect to the interpretation, application,and internationalization of international law, they are, literally,oceans apart.243

VI. CONCLUSION: THE NUREMBERG PARADOX

This Article has explored some of the many reasons why Franceand the United States diverge so sharply with regard to their posi-tions on the International Criminal Court Treaty. Some are clearlyextrinsic to the discussion in this Article. They include the fact thatFrance has assumed numerous international obligations over andabove those it shares with the United States-it is a member of theEuropean Union, which subjects it to the jurisdiction of the EuropeanCourt of Justice; of the Council of Europe and the European Conven-tion on Human Rights and Fundamental Freedoms, which subjects it

241. 18 U.S.C. § 1091(d). These jurisdictional limitations also apply to the WarCrimes Act of 1996 as amended. There is some evidence of universal jurisdictionbased criminal prosecutions in the terrorism area, however, see, e.g., U.S. v. Yunis,924 F.2d 1086 (1991), and on the civil side, with ATCA litigation. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The genocide accountability act of 2007 was adoptedexpanding U.S. jurisdiction over acts of genocide committed abroad. (Pub. L 110-151,Dec. 21, 2007, 121 Stat. 1821) amending 18 USCA §109, and providing for universaljurisdiction in cases of genocide.

242. Statement of Senator Orrin Hatch, Vol. XII-7 UNA/USA Washington WeeklyReport 1-3 (Feb. 21, 1986).

243. This is also true as regards international law teaching, as a lively debateabout the relative differences between teaching international law in France and theUnited States held under the aegis of the American Society of International Lawsuggests.

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to the jurisdiction of the European Court of Human Rights,2 4 4 and tomany human rights treaties to which the United States has not ad-hered, including the International Covenant on Economic, Social andCultural Rights, 245 the Convention on the Rights of the Child 246 andthe Convention on the Elimination of All Forms of DiscriminationAgainst Women. 247 This has required French judges to constantlyevaluate and work with international legal norms. Combined withstrong doctrinal foundations for doing so, and a largely monist legaltradition, we find French decisions involving international legalnorms exhibiting a higher degree of coherence than we find in theirAmerican counterparts, which Martin Rogoff has described in an ex-cellent study of the French and American legal systems as "confused,unsystematic, and ad hoc."248

The French Republic also suffered through two wars in the lastcentury, perhaps conditioning its people to see international legalnorms as beneficial rather than burdensome in the constraints theyimpose on States' freedom of action. And of course, all members of theEuropean Union pledged to ratify the ICC Treaty immediately, mak-ing it difficult for France to be an outlier with regard to an institutionthat it claims to lead.

Yet there is clearly more to the story than that. In France, acade-micians as well as politicians worked assiduously on theinternational criminal court project following the First World Warand actively supported its execution in the form of the Nurembergtrials. There is certainly no one factor that can be pointed to as deci-sive, and yet the intertwining of a long-standing commitment tohuman rights with the emergence of a system of international crimi-nal justice seems to have rendered it simply impossible as a politicalmatter for France to do anything but support the International Crim-inal Court treaty. The United States, although embracing therhetoric of Nuremberg, never domesticated the Nuremberg normsand veered sharply from the path of international engagement withits decision not to ratify the League of Nations Treaty. For mostAmericans, Nuremberg was a singular event, not the harbinger of anew international treaty regime that would impose legal obligations

244. Convention for the Protection of Human Rights and Fundamental Freedoms,art. 19, Nov. 4, 1950, 213 U.N.T.S. 222.

245. International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316(1966) 993 U.N.T.S. 3.

246. The United Nations Convention on the Rights of the Child, opened for signa-ture Nov. 20, 1989, G.A. res 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N.Doc. A/44/49 (1989).

247. Convention on the Elimination of All Forms of Discrimination against Wo-men, opened for signature Mar. 1, 1980, G.A. res. 34180, 34 U.N. GAOR Supp. (No.46) at 193, U.N. Doc. A/3446.

248. Rogoff, supra note 227, at 413.

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on the United States. Moreover, there was no real parallel to theFrench crimes against humanity cases in the United States. Americawas never occupied, and although there were efforts to deport Nazisthat had come to the United States under false pretenses,249 the Nu-remberg Charter was never incorporated as a matter of domestic law,and the U.S. statutes criminalizing war crimes and genocide thatwere initially adopted, applied only insofar as they affect the UnitedStates or U.S. nationals.

At the same time, there were a handful of sophisticated uses ofinternational criminal law and international human rights law byAmerican courts, such as the Filartiga and Yunis cases. Yet, none ofthe opinions involved the commission of international crimes by U.S.nationals. Filartiga250 was a civil case involving torture committedby Paraguayans against Paraguayans, and Yunis251 involved thecommission of terrorist acts against Americans by foreign nationals.In both cases the lower courts treated the international norms as di-rectly enforceable within the American legal system-the customaryinternational law against torture in the Filartiga case and variousanti-terror treaties that had been codified as federal crimes inYunis-but these cases posed no real political difficulties for Ameri-cans at the time. (Filartiga and the human rights litigation itspawned subsequently came under attack by conservative scholars2 52

and has now been cabined, although not overruled, by the SupremeCourt in Sosa v. Alvarez Machain.)253 Against the Filartiga andYunis cases, however, stand several U.S. Supreme Court decisionsdenying international law direct effect in the U.S. legal system, mostrecently the Court's opinion in Medellin.254 Indeed, it seems undenia-ble that in spite of the elegant simplicity of the Supremacy Clause'sprovision that "all Treaties made . . . under the Authority of theUnited States, shall be the supreme Law of the Land,"255 many trea-ties, if they are not "self-executing" as that term must now beunderstood, lack domestic legal force. 2 56

American proponents of the International Criminal Court maytake solace in one expert's observation that in spite of the clear differ-

249. Matthew Lippman, The Pursuit of Nazi War Criminals in the United Statesand in Other Anglo-American Legal Systems, 29 CAL. W. INT'L. L.J. 1, 47-63 (1998).

250. Filartiga v. Pena-Irala, 630 F.2d 876 (1980).251. U.S. v. Yunis, 924 F.2d 1086 (1991).252. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International

Law as Federal Common Law; A Critique of the Modern Position, 110 HARv. L. REV.815, 831-34 (1997).

253. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).254. Medellin v. Texas, 552 U.S. -, 128 S. Ct. 1346 (2008) (holding that while a

treaty may represent an international commitment it is not binding U.S. law unlessCongress has implemented it or the treaty is self-executing).

255. U.S. Const. art. VI, cl. 2.256. David Sloss, The United States, in THE ROLE OF DOMESTIC COURTS IN TREATY

ENFORCEMENT: A COMPARATIVE STUDY (David Sloss, ed. 2009) (forthcoming).

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ences between the United States and France, there are extraordinarysimilarities, including a sense of commitment to the rule of law, de-mocracy and benign government, and human rights.257 These valuesare no doubt what led the United States to refrain from vetoing theSecurity Council Resolution authorizing the referral of the situationin Darfur to the International Criminal Court, even if the Bush ad-ministration had no appetite to support the referral either financiallyor with the promise of military assistance to bring suspected g6-nocidiaires to book.258 The United States delegation at Romecontributed enormously to both the substantive law and proceduralprotections for the accused that are currently found in the Interna-tional Criminal Court Statute, and the former U.S. head ofdelegation, David Scheffer, is now one of the Court's most ferventsupporters. Moreover, the United States has shown signs of incre-mentally moving towards the notion of prosecuting individualsaccused of genocide or certain war crimes such as the use of childsoldiers, with its recent adoption of the Genocide Accountability andChild Soldiers Accountability Acts of 2008.259 But these small stepsforward have been taken against the backdrop of a legal culture thathas steadfastly resisted the internalization of international norms,often on constitutional grounds, and it has failed to take either themoral or the legal legacy of Nuremberg seriously as a matter of U.S.foreign policy.

The United States may very well come around to ratifying theICC Statute; but it seems clear from this study that it will have agreat deal of difficulty doing so. It is not just a question of politics orsuperpower status, but a way of perceiving international laws as loisd'&cptions, as foreign to the domestic legal order, that has made itdifficult even for some liberal internationalists to come right out infavor of the ICC. 260 In the United States, international law is seen asexceptional, even aberrant, whereas in France it is simply anothersource of law to be applied. That does not mean that politics neverinfluences law in France-it does. Nor does it mean that Americanliberal internationalists or transnationalists, as they are sometimescalled, do not command a significant following-they do. Yet, as this

257. Rogoff, supra note 227, at 408.258. The Resolution specifically requires that the prosecution be paid for by the

Court, not the United Nations, and, of course, the United States has been unwilling toput much "muscle" behind its pleas for peace in Sudan, although it has been promi-nent in calling the atrocities "genocidal" in character.

259. Genocide Accountability Act, Pub. L. No. 110-151, 121 Stat. 1821 (2007) (codi-fied at 18 U.S.C. § 1091 (2008)).

260. Relatively little scholarship appeared on the Rome Conference or the ICC inthe United States (as opposed to Europe), and neither Hillary Clinton nor BarackObama supported ratification of the ICC Statute during the 2008 Presidential Cam-paign. John McCain initially did, although it is unclear if that would have been hisview upon becoming President.

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204 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58

Article has demonstrated, legal culture matters with respect to politi-cal decision making; and with respect to potentially controversialdecisions, such as the decision to ratify a major treaty requiring theapplication of international legal principles to individuals holdinggreat power, it may matter to a very significant degree indeed.
