ON APRIL 13, 1992, the court of appeal in Paris exonerated Touvier, explaining that the only crimes against humanity without a statute of limitations were those committed on behalf of a state “pursuing a policy of ideological hegemony.” According to the court of appeal, this was not the case for Vichy, “irrespective of its weaknesses, cowardices, and ignominies.” And yet it was obvious that, when it came to the Jewish question, Vichy did pursue a policy of ideological hegemony. We put our faith in the court of cassation—the French equivalent of the U.S. Supreme Court—to put an end to this scandal.
On November 22, 1992, the court of cassation found in our favor, ruling that the Paris court of appeal had failed to take into account Touvier’s complicity with the Gestapo in the case of the summary execution in Rillieux-la-Pape, where seven Jewish hostages were shot by Touvier’s militia. And yet the court of cassation did not go far enough; it did not rule that Vichy was a state “pursuing a policy of ideological hegemony,” and this enabled the Papon and Bousquet cases to be judged in terms of complicity, too.
When it came to the trial, we were in a difficult position: if the prosecutor and the plaintiffs stuck to this narrow definition of a crime against humanity, and if they based their accusation on complicity with the Sipo-SD, there was a major risk that Touvier would be given the benefit of mitigating circumstances, as his actions could then be explained in terms of him pressuring the Germans to reduce the number of hostages. This would also be dangerous from a historical standpoint, effectively absolving the entire Vichy regime on the same false lines.
Arno and I were determined to argue the historical truth rather than accommodating our arguments to the idea of complicity. Personally, I did not like the atmosphere of this trial nor the difficult relationships with the other prosecution lawyers, and I had no desire to read and try to memorize the very thick dossier on the Milice. So I left that to Arno, having every faith in his intelligence, memory, and firmness. In 1990, he had obtained his law degree after only eight months at New York University and passed the New York bar examination with the highest grade of any student. He also passed the state bar exam in California.
Touvier’s defense was essentially that the Lyon Gestapo had demanded the execution of a hundred people in retaliation for the death of Philippe Henriot, the Vichy propagandist and part-time militiaman, and that the head of the Milice had succeeded in reducing this number to thirty, while Touvier, by choosing Jews, had managed to shoot only seven people. And yet nothing in the dossier or in the logic of events suggested that the Germans had demanded reprisals. We decided to argue the truth: that the French state of Vichy was complicit in the Third Reich’s persecution of Jews; that the Milice collaborated closely with the Gestapo and that, as part of this collaboration, the Milice carried out its own reprisals for Henriot’s death; and that Paul Touvier was the instigator of the massacre in Rillieux-la-Pape.
At our first meeting with the other prosecution lawyers, it became clear that there was a major division among us; they all feared that our argument would contradict the court of cassation’s interpretation of a crime against humanity and that this would lead to Touvier’s acquittal. If Arno capitulated to this legal logic, Touvier would only have been given an intermediate prison sentence, when what he deserved was life imprisonment.
I did not even enter the courthouse during this trial; my place was outside, protesting with the other Sons and Daughters. I also drove Arno to each hearing between March 17 and April 20, 1994. My son knew the dossier like the back of his hand, and his personality seemed better suited than mine to withstanding the pressure from his colleagues, who were already irritated by his stance and his youthful looks. They wanted and expected him to be lazy and superficial, but in fact he was brilliant and serious.
One of his most notable interventions came on April 1, when former high police official Jacques Delarue contradicted the damning investigation report that he himself had written in 1970, in which he claimed that there was no trace of any intervention by the Germans in this case. Delarue justified this U-turn by referring to a cross-examination of the Milice leader Joseph Darnand in 1945. But Arno presented the court with the minutes of Delarue’s hearing, dated April 11, 1990, in which he stated that no credit be given to Darnand’s lies in that cross-examination. Delarue tried to muddy the waters, so Arno asked him if he had been pressured, having been a policeman in the major roundup in Marseille in January 1943. There was an uproar in the courtroom, and the other prosecution lawyers distanced themselves from Arno. But Delarue’s testimony collapsed.
Touvier’s vile and unwavering anti-Semitism could be established simply by reading his notebooks; his role in the summary execution at Rillieux-la-Pape was backed up by witnesses, by the Resistance fighter who was not killed because he wasn’t Jewish, by Touvier’s secretary, by his chauffeur.
Arno gave his closing speech on April 14. His final words, addressed to the jury, forced them to face up to their responsibilities and demanded a life sentence: “It is through the severity of the sentence that you give Touvier that the world will judge whether the French people look more indulgently on crimes committed by a Frenchman in the Milice than on crimes committed by a German in the Gestapo.”
The prosecutor, Hubert de Touzalin, pointed out that Touvier had been charged by the court of cassation and the Versailles grand jury with complicity with the Germans in crimes against humanity, whereas the entire investigation demonstrated the independence of his actions in the massacre at Rillieux. But the prosecutor then declared that the court of cassation’s definition was sufficiently broad to encompass Touvier’s crime: “I am convinced that there was no order, but only a German intervention.” This nuance allowed the prosecutor to counter Touvier’s arguments: “Seven Jews were murdered. That is a proven fact. It is the only one.”
In Le Monde, the eminent essayist and novelist Bertrand Poirot-Delpech wrote: “Arno Klarsfeld chose fidelity to the evidence over that pragmatic U-turn. If the jury had not given Touvier a life sentence, Arno Klarsfeld would have taken the blame; thanks to him, and him alone, truth and justice went hand in hand, which is so rarely the case.”