In common opinion, the stakes of a legal action cover, essentially, the claim of one litigant against another or the demand for sanctions and reparations against the perpetrator of a wrong. It is too often forgotten that the trial also has another function, whose reach is not always appreciated: the pronouncement of the judgment or the verdict implies the end of a dispute, the closing of a difference, and this is almost always a painful moment for the victims. It is indeed frequent to observe that even if, in the best of cases, justice has been correctly rendered and the victim has been recognized as such, the latter, in her “end-of-trial” disarray, comes to exercise sometimes surprising appeals and displays a judicial relentlessness that ends up distorting reality and wearying public opinion, as soon as the case is one that has drawn media attention.
This is of course explained by the fact that the end of their trial provokes in many victims the emergence of a new ordeal: that of silence and of a solitude experienced as a brutal indifference to the sufferings that had been, for a few weeks, the object of all questioning and all attention. Suddenly, justice turns away, and from this movement there is sometimes born a deep ressentiment toward a justice that one then accuses of having favored the offender at the expense of the victims, of not having explored all the ins and outs of this or that tragedy, of not having said everything, of having concealed the real truth…
If this disappointment is felt in trials for ordinary-law crimes, all the more will it be felt when a trial for crimes against humanity comes to an end. The imprescriptible character of these crimes renders the demand for justice, in a sense, inexhaustible, even when the trial has, to the extent possible, answered it. Thus the painful silence that followed the end of the trials France experienced between 1987 and 1998 found itself amplified by the very nature of the tragedies that had been lived through. Many victims or associations never ceased imagining strategies for keeping the matter spoken of, debated, for anything is better than that sudden silence, which constitutes a true wound.
This is why, if one wishes to consider the Lipietz affair without brutality, it is necessary to bear in mind that it plainly belongs to this pain that refuses to end. But that must not forbid us from expressing a certain number of reservations.
Let us recall the facts: on November 14, 2001, Monsieur Georges Lipietz and members of his family filed a petition before the Tribunal administratif (administrative court) of Toulouse, seeking to have the State and the SNCF jointly ordered to pay the total sum of €400,000 in reparation for their injuries. They denounced, in effect, the fact of having been confined in the premises of the Toulouse prison administration following their arrest by the Gestapo on May 8, 1944, then their conveyance by the SNCF from Toulouse to Paris on May 10 and 11, and finally their internment at Drancy from May 11 to August 17, 1944, the date of their liberation. They thus had the good fortune not to be deported to a concentration camp or to an extermination camp. The SNCF was being sued for having transported the Lipietz family in deplorable conditions of comfort and hygiene, and the State for having interned them for more than three months. Georges Lipietz having died during the course of the proceedings, in 2003, his claims were taken up by his heirs, among them the Green party deputy Alain Lipietz. The administrative court of Toulouse granted their claims and ordered the State to pay them the sum of €40,000 and the SNCF the sum of €20,000, in addition to statutory interest dating from September 6, 2001. The SNCF appealed this decision, unlike the State, which accepted it. Since then, more than 1,200 complaints against the SNCF have been filed.
The judges’ grounds are somewhat surprising and would require too lengthy a legal commentary. But we must pause for a moment on the motivation of the Lipietz family: “Forty years later, our father wanted to be one of the last witnesses to the ignominy of the French State,” they declared, and, for them, the stake of this trial was to “have the responsibility of the French administrative machine recognized.” After obtaining satisfaction at the conclusion of this first judicial round, Alain Lipietz hailed this “historic victory.”
Is this not a curious posture, the one that consists in proclaiming as “historic” the recognition of the responsibility of the French administration and of the SNCF? For, since the work of the historians Marrus and Paxton, then that of Serge Klarsfeld, in the mid-1970s, who definitively shattered the leaden shroud covering the reality of the French State through its collaboration agreements with Nazi Germany, who can still be unaware that the “common enemies” of the Nazis and of the Vichy regime were the Jews, the resistance fighters, and the communists? Not only has this question ceased to be a matter of debate for more than twenty-five years, but the responsibility of France — then called the French State — was recalled by the President of the Republic in 1995. Moreover, the pursuit, on the judicial plane, of the responsibility of the State no longer has any relevance today, not only by reason of that declaration, which commits the entire Republic, but also on the financial and compensatory plane, since for some ten years the State has not ceased to take reparatory measures putting an end to the intolerable attitude of certain banks or of the Caisse des dépôts et consignations.
Furthermore, with regard more precisely to the SNCF, the trials of Barbie, of Touvier, and particularly that of Papon, have brought still more to light, on the judicial plane, the role of our country in the deportation of the Jews, with its hundred or so convoys that conveyed Jews from every region of France toward Drancy, that marshalling yard of deportation. One did not have to wait for the Bachelier report — which the Lipietz relatives drew upon to initiate their proceedings — to know that the SNCF was acting within the framework of the collaboration agreements, which have nothing to do with the agreements concluded in the wake of a capitulation and which would then be only constraints, vexations, and humiliations. The collaboration agreements, for their part, were meant to precede peace agreements, and the hunt for the Jews was in full swing.
To be sure, I am well aware that historical research must not substitute itself for trials. “What good are trials, since we have the historians?” — this is a remark we often heard during the three great trials France experienced. The principal answer to this objection was that we were bringing to the stand individuals of flesh and blood who had been the actors — each in his own register — of Vichy’s murderous policy. The victims at last had the possibility of putting a face to it, and thus of putting an end to that terrible anonymity of the crime.
For the trial brought by the Lipietz family against the State and the SNCF to be qualified as “historic,” it would therefore have been necessary that there appear, for example, before a Cour d’Assises (assize court), the President of the railway company, whose speeches to his Board of Directors one may read today with consternation, thanks to the famous “Bachelier report.” It is worth recalling, indeed, that the trials for crimes against humanity that targeted Barbie, Touvier, and Papon are proceedings in which the individual criminal responsibility of each is engaged. Now the Lipietz proceeding against the State and the SNCF is purely administrative, since it concerns these legal persons. One may note, moreover, that the decision of the administrative court of Toulouse does not once evoke the crime against humanity, but underscores the “fault of service” of the State and the appalling conditions of transport as regards the SNCF. As a result, one really fails to see what this proceeding could have added to the work of the historians. In truth, the Lipietz family neither demanded nor obtained anything other than a judicial exploitation of the Bachelier report. This is why one may legitimately question the “historic” character of the judgment rendered.
But there is something still more problematic in the attitude of the Lipietz family and of the 1,200 families who have since brought similar proceedings. This concerns financial demands aimed at repairing injuries suffered by others — that is, by close or distant relatives. How is one to understand that a plaintiff, born after the war, claims financial compensation in reparation for the pain and the terror lived through by his cousin, his brother, or his mother, who were on the road to deportation sixty years earlier? By what right may these relatives demand such compensation for sufferings that others lived through?
If a judicial decision must above all make sense, how is one to understand the sums claimed by the Lipietz family (€400,000), and even those awarded by the administrative court (€60,000), when they had the miraculous good fortune not to experience deportation, their tragedies having stopped at Drancy? And besides, why not have demanded double, or triple, or ten times more? How is one to evaluate such suffering, which fortunately did not end in the tragedy that so many Jews had to know, beginning from the soil of France?
We are witnessing here the invasion of “American-style” techniques of judicial claims, with fee agreements pegged to a percentage of the result obtained, to the benefit of the lawyers in charge of the plaintiffs’ defense. If this is fully justified in many ordinary proceedings, it is not certain that conveyance by the SNCF toward Drancy, and the stay there, is the best subject for experimenting with this type of fee agreement. It must, moreover, be understood that if these proceedings were to continue, our society would still be agitated for years by the questions touching on the deportation of the Jews, and across the whole territory, since it is multiple administrative courts that would have to render decisions, sometimes contradictory. This would mean that nearly seventy years after these monstrous crimes, justice would continue its task by compensating the heirs of the victims, of the second or third generation! Let me be well understood: I hope that these monstrous crimes will still be spoken of a thousand years from now — but not in this way.
Of course, it is not because it concerns a cousin, a grandmother, or an uncle that the demand for reparation is out of place, for it is the very nature of Jewish pain to carry as one’s own the tragedy of the genocide of the Jews. “There is no limit,” writes Jankélévitch, “to the memory of one who has not lived through the hell to which he bears witness.” But, precisely, what is at issue here is indeed memory and piety, and not financial reparations.
I still have in memory the meetings of the civil parties with the lawyers during the Barbie, Touvier, and Papon trials, in order to determine the amount of damages they were to demand of the Court at the conclusion of those trials. The victims were survivors, children, or very close relatives of those who had not had the good fortune to survive, or else associations for the defense of the memory of the deported Jews or of the deported resistance fighters. These civil parties had then demanded the symbolic franc of Klaus Barbie, Paul Touvier, and Maurice Papon. Only a few victims asked of the latter — and obtained — sums of around 150,000 francs (about €22,000). What an admirable demand of dignity, that of the symbolic franc at the most intense moment of the trials!
If the action brought by Lipietz were to set a precedent, as appears to be the case — if the courts were thus to be solicited — we would no longer be dealing with a victory of memory and of piety, but with the triumph of ressentiment, which, for its part, is destructive and leads to ill-timed and sometimes shocking demands. It is ressentiment, indeed, that feeds in the victims the refusal to admit that the judicial phase is over. Yet such an acknowledgment in no way implies the abandonment or the forgetting of the crimes: it means rather that the Jews must today admit that they are no longer alone, that they must consent to let themselves be helped by the historians, those researchers who, through their ever-renewed work, increase each day our knowledge of what was accomplished in those dark times. The notion of imprescriptibility deserves better than this type of proceedings, which are open to criticism and, to put it plainly, irresponsible.
Michel Zaoui — Lawyer at the Paris bar, counsel for the civil parties in the Barbie, Touvier, and Papon trials.
Postscript. In March 2007, the Bordeaux administrative court of appeal annulled the judgment condemning the SNCF.