6

Torture and Other Violations of the Law by the French Army during the Algerian War

Raphaëlle Branche

Law is a historical entity; so, too, are its violations. Law has been used as an instrument to wage war while being subjected to extremely strong stresses. This sheds a powerful light on the contradiction whereby France – land of the Rights of Man, a democracy that strives to bring civilization and enlightenment to the world, especially to its colonies – has maintained, both verbally and (to a certain extent) practically, these fundamental precepts while radically contradicting them.

The study of violations of the law during wartime – of their reality as well as of the reasons for their use, of their oversight by the political authority and of their consequences for the political authority itself – provides a contradictory portrait of a democracy at war, engaged in combat with individuals who were neither full citizens nor foreigners. Colonial law was skilled at creating distinctions among ‘Frenchmen.’

‘Police operations’ in Algeria

The first attacks that hit Algeria during the night of 1 November 1954 marked the beginning of armed confrontations that would eventually involve up to half a million French soldiers. Apart from fighting, these soldiers were assigned to carry out tasks as diverse as teaching, guarding crops, and patrolling the electric fences installed at frontiers – activities the goal of which was to preserve French Algeria in the face of the threat posed by a handful of armed nationalists. The nationalist forces were initially limited to eastern Algeria, until ideas first of autonomy, then of independence, gained ground among a majority of Algerians.

Since 1848, Algeria had been officially composed of French départements. For the French to recognize a state of war there was accordingly impossible. It would mean admitting the existence of a civil war within France – or, alternatively, the legitimacy of Algerians’ nationalist claims. And so, for eight years, the French armed interventions in Algeria were officially referred to as ‘police operations’ aimed at ‘maintaining order’ on French territory. They were depicted, thus, as an internal matter.

This initial refusal to consider the ‘Algerian events’ as fundamentally political would have a bearing upon the manner in which the war was conducted, and how the French armed forces behaved on the ground. The normal peacetime framework would rapidly fail to provide adequate justification for repressive force. In the spring of 1955, the government succeeded in passing a law declaring a state of emergency that expanded the powers of the civil and military authorities in Algeria. The state of emergency contravened the law on two fronts, both by allowing exceptional police measures and by extending military authority. Thus, a prefect was granted the right to limit civil freedoms, and could go so far as to order house arrest or confinement in camps. As for the army, its legal powers were expanded with the aim of accelerating the course of justice, in a context described most often as ‘the struggle against terrorism.’

The state of emergency originally decreed for certain Algerian wards was extended to the whole country on 20 August 1955. The killing of Europeans in Nord-Constantinois, followed by an unprecedented eruption of acts of violence against the Algerian population, rendered untenable the idea that this was merely a limited war. The harsh policies of those governing political life in Algeria gained wider support within metropolitan France, especially from Minister of the Interior Maurice Bourgès-Maunoury. In June 1955, Bourgès-Maunoury defended the state of emergency before representatives of the Interior Commission, declaring: ‘If we had acted more forcefully at a certain moment, there would have been fewer people killed and mutilated. I do not believe that we will achieve anything by displaying weakness against people who have rejected our nation in a very clear fashion.’

This mindset was widespread among the state’s top echelons. Some months later, those who defended a specific program of ‘Peace in Algeria’ gained a majority in the National Assembly. Guy Mollet, a socialist, was appointed chief executive. But the war was speedily reaffirmed as a priority, with victory on the ground viewed as a preliminary step – even if it were achieved by means other than all-out military victory. In March 1956, the government asked parliamentarians to grant it special powers to address the Algerian crisis. Unlike the state of emergency, this was not a question of granting precise powers, but rather of buttressing the principle of the executive’s absolute power with regard to all matters concerning Algeria. These special powers were granted for a period of six months, whereupon the government decided to impose them on Algeria. The special powers were accompanied by the ceding of some prerogatives to the executive (i.e. the government in Paris). In fact, the powers frequently devolved to Robert Lacoste, resident Minister in Algeria, to use as he saw fit. Either through Lacoste’s intervention, or directly through their delegation, these special powers signified the devolution of key powers to the army. This was presented as a temporary measure, but it would endure, and have grave consequences.

Indeed, the regulatory framework remained in place throughout the Algerian war. Maurice Bourgès-Maunoury, upon assuming chief executive powers, sought the extension of emergency measures to metropolitan France in summer 1957, and General de Gaulle later asked for their confirmation, as the law required. In October 1958, a statute repealed the requirement that each new government seek a renewal of the special powers. Never officially abrogated, they therefore continued in force even during the life of the Fifth Republic. Moreover, in February 1960 the government sought approval from the Assembly to assume full powers for one year. Thus, throughout the war, the conduct of Algerian affairs remained in the hands of the executive. It was this executive that, by issuing new regulations, redefined crimes and misdemeanors – though the penal code remained officially in force.

Another legislative framework existed alongside this national framework: international law and, as it happened, the 1949 Geneva Conventions.¹ This law placed new constraints on the legal conduct of war or ‘armed conflict,’ though it should be noted that the offences described – including rape and torture – were already prohibited under the peacetime French penal code. France adopted the conventions in 1951, and what we know today as ‘the Algerian war’ provided France with its first opportunity to implement them. In fact, viewed through the lens of international law, the conventions were highly pertinent in the Algerian case.² But French participants in the war, both civil and military, adamantly rejected such an approach.

The organization that claimed special custody of the Geneva Conventions was the International Committee of the Red Cross (ICRC). The general framework for its operations was established by France’s chief executive, Pierre Mendès France. ICRC missions were allowed to enter Algerian territory, but were ordered to concern themselves with one matter only: the conditions under which prisoners were detained. This would demonstrate France’s respect for the Third Geneva Convention, although this was never stated officially. France thus found herself in a paradoxical situation. The ‘events’ taking place in Algeria warranted the treatment of prisoners, under the Third Convention, as prisoners taken in armed conflict. However, these same ‘events’ did not justify the application of the First Convention to those wounded on the battlefield, or the Fourth to civilian populations. And so, as far as these other conventions were concerned, peace officially reigned in Algeria – although the tacit recognition of the Third Convention indicated a state of war. Inasmuch as the Third Convention was not officially recognized, however, it was still deemed permissible to turn a blind eye.

The political dimension of the law’s application did not escape the notice of Algerian nationalists. As the self-styled Provisional Government for the Algerian Republic (GPRA), they agreed in 1960 to respect the conventions, in the context of negotiations with the French government. By adopting a position usually reserved for a state, the GPRA intended to affirm its own legitimacy and Algeria’s proto-statehood.

Another consequence of the negotiations process was a certain improvement in France’s application of the Geneva Conventions, at least insofar as the treatment of military prisoners was concerned. From March 1958, military internment centers were established to house ‘rebels captured while armed.’ This led, finally, to these men being accorded recognition as soldiers – even though they were not always considered prisoners of war, and though it was claimed that the Third Convention did not apply to them.

Thus, it seems that the acceptance of diplomatic intervention in the conflict prompted the emergence of an official enemy on the battlefield. Paradoxically, it was the prospect of peace between the two parties that rendered it necessary to depict the events in terms of war, of opposing ‘sides’ and ‘enemy’ soldiers. The history of the application of the Geneva Conventions during the Algerian war illustrates how an enemy originally considered a rebel against the state was transformed into an enemy that was both external and legitimate. Only with such an officially designated enemy could peace be concluded.

This brief explanation buttresses the idea that violations of the law in Algeria must be analyzed with reference to two separate legal codes. Moreover, the prevailing norms fluctuated according to the political context, leading to a similar flexibility in interpretations of violations – in particular whether emphasis was placed on written law or judicial practice. A nuanced presentation of violations by the French army thus requires not only a description of those violations, but analysis of their relationship to multiple and concurrent norms and processes. Only in this manner can we grasp how certain violent practices came to call into question not just the law, but the French state as a whole.

Violence by the French army in Algeria: legality, legitimacy and violations of the law

The principal function of an army is to wage war. What, therefore, was the status of the acts of violence perpetrated by these agents during their mission, given that the framework in which the acts occurred had not been officially designated as a war? In particular, how did the acts derive their legitimacy, if we cannot speak of their legality? Perhaps the behavior of soldiers in the field provides the source of that legitimacy, independently of the ‘laws of war.’ If so, what were the practical and political ramifications?

During the Algerian war, these complex issues were debated vehemently. The unease evoked by acts of violence committed by a democratic army parallels the determined beating about the bush that characterized political debate in France in 2000–2001, when the use of torture by French soldiers again became the subject of fierce public controversy (see the Introduction to this volume).

Most acts of violence perpetrated by the French army targeted civilians. This was not surprising, in that the conditions in which the war was fought effectively blended combatants and civilian populations. At the outset of the conflict, French soldiers were obliged to report the deaths they caused to the gendarmerie, whose duty it was to make reports and conduct inquiries. Killing one’s enemy on the battlefield, a legitimate action if a state of war exists, was not recognized as such. Nevertheless, in the light of subsequent and more prominent developments, we will set aside this particular act of violence for the remainder of the discussion.

From the first year of the war, two acts of violence grew exponentially: summary executions and internment in camps. The state of emergency authorizing house arrest underpinned the latter phenomenon, which expanded further over the course of the war, gradually escaping the control of the civil authority. In the French camps, where internment was theoretically supposed to be temporary, the military held some detainees for months or even years, sometimes submitting them to torture without the slightest qualm. These camps were signs both of the growing power of the military during the war, and of the inability of the civilian authorities, at least up to 1959–60, to ensure respect for certain elementary rights of prisoners.

As for summary executions, they were covered a priori by a lengthy directive from the Minister of National Defense and the Minister of the Interior. Dated 1 July 1955, it ‘confirm[ed] the approach to be adopted vis-à-vis rebels in Algeria’ (emphasis added). This directive required that military retaliation should be ‘harsher, speedier, [and] total,’ with each man asked ‘to demonstrate creativity in applying the most appropriate means compatible with his conscience as a soldier.’ But the directive also contained certain specific commands. Thus, ‘every rebel bearing a weapon, or believed to be carrying one … is to be shot immediately’; above all, soldiers ‘must open fire on every suspect who attempts to flee.’ This directive, relying as it did on a conception of the enemy that was already extremely vague (‘rebels’), contributed to the development of an iconic figure of the war: the ‘suspect.’ Far from being directly involved in violent practices and organized in terrorist cells or armed bands (like standard ‘rebels’), Algerian ‘suspects’ formed a huge group with notably blurred boundaries. The order made no distinction between civilian and military personnel, or even between armed and unarmed persons. Simply to take flight was to render one suspect: the authorization to shoot ‘runaways’ constituted the legalization a priori of summary executions.

In the early days of the war, regulatory leeway was granted to authorize prohibited acts. Summary executions were disguised as ‘attempts to flee,’ ‘attempts to escape,’ or ‘the killing of escapers.’ This offered one of the clearest indications of the exemptions from the laws of war that should have governed the use of force in Algeria. Other very ordinary acts of violence did not benefit quite so explicitly from this regulatory camouflage. They were authorized, but without direct approval being granted. The procedure allowed political and military authorities to obfuscate when distinguishing between the licit and illicit, and to speak only of ‘screw-ups’ or ‘excesses’ in the implementation of counterinsurgency policy. Two acts of violence that were expressly forbidden by the French penal code stand out in this category: the execution of hostages and torture.

The execution of hostages owed its genesis to colonial law, which assigned collective responsibility in the case of certain infractions, and authorized collective punishments, including forced labor. This principle was enforced in the spring of 1955: if an attack took place, the nearest village was considered collectively responsible. The reprisals that ensued might include executing hostages. Although this was officially prohibited, and condemned on several occasions in the French National Assembly, it was explicitly recommended by some military leaders, and tacitly implemented by others.

The practice of torture adds a significant dimension to this category of violence. Torture was used indiscriminately in the towns and in the mountains; in active operations or back in billets; against military prisoners or against civilians. Some prisoners were tortured immediately after their arrest, while others – or the same ones – languished in captivity for a period before more extreme measures were applied. The victims were fighters in the Algerian underground but also, and much more often, civilians suspected of providing the ‘rebels’ with supplies and money, or engaging in political organization and mobilization.

Even though torture was officially prohibited, a special group was established during the war to function as a secret service and specialize in the torture and eventual execution of prisoners. The organization – the Détachement Opérationnel de Protection (DOP) – was composed of all kinds of men, conscripts as well as career soldiers. This army-within-an-army comprised 2,000 men at its zenith. It actually took custody of a relatively small number of prisoners and ‘suspects,’ coming to specialize in the most difficult cases.

At the same time, torture was practiced by regular military units, notably by teams from the Deuxième Bureau, the office charged with gathering intelligence information. Alongside these teams, other soldiers might also be induced to torture prisoners, especially when the latter were to be interrogated immediately after capture – a process they were instructed to follow. From the beginning of the war, in fact, soldiers were pressured to view the search for information as their greatest priority. Torture, rarely explicitly recommended but often quietly suggested, was one way of obtaining it.

The historian should not, of course, focus only on the apparent goal of information-gathering. Whatever aims a torturer might set for himself, or believe to have been set for him, torture is characterized by the willingness of one or several persons to cause suffering to another human being. It is pain deliberately inflicted, carried out within a framework in which the victim is deprived of all rights while the executioner lacks none, including the right to put another human being to death. Torture aims to deprive the other of his or her ability to think, and has its psychological basis in the manipulation of the victim’s fear of death or permanent injury.

During the Algerian war, torture was virtually always an act of violence inflicted by a group, under the command of a superior. It appeared to be subject to certain rules, and drew on a relatively limited array of violent acts. Torture sessions began with the systematic stripping of the victim. One method of torture was rarely used alone. It was more often combined with one of five separate tactics: beatings, hanging by the feet or hands, water torture, torture by electric shock, and rape.

The beatings were systematic; apart from them, electric shock was undeniably the most widely practised torture method. Indeed, technological developments allowed troops to transport an electric generator with them into combat – a machine also capable of providing electricity for the field telephone or radio. The functional aspect was clearly important, but this form of torture also held a great attraction for rational minds trying to convince themselves of the necessity of this violence in wartime. The generator permitted pain levels to be gradually increased, and adapted to the response of the victim. The use of a machine also allowed a soldier to distance himself from the violence inflicted, and from the body of the other person. We find inanimate objects similarly employed in the other torture methods (except beatings): a rope, a jerry can of water and funnel, objects for sexual violation. The use of these objects, and the accompanying desire for ‘efficiency,’ arose from the same impulse. They helped to entrench torture within a culture of supposedly ‘civilized’ and rational violence. In particular, it was imperative to differentiate the acts of violence from those employed by the Other, the enemy, which were characterized as ‘barbarous’ or ‘savage.’ Some authors eventually acknowledged the use of methods officially prohibited to, but regularly employed by, French troops. Through to the end of the war and until the present day, however, the term ‘torture’ was not used by French authorities, except to deny its existence or to minimize the scale of its use.

Matters are more straightforward when we turn to a final category of violent acts: those prohibited not just in theory, but explicitly and officially; those for which perpetrators were theoretically subject to punishment. One example is rape. Leaving aside rape as a tool of torture, wartime rapes did occur in Algeria. In most cases they were opportunistic, occurring especially during searches of ‘suspect’ villages. Mouloud Feraoun clearly understood this, writing of his native Kabylia: ‘Once the soldiers have removed [the men] from their homes and have penned them up outside the village in order to ransack the houses, [the men] know that the sexual organs of their daughters and their wives will be ransacked as well.’ Rapes were most often committed in a collective manner; other soldiers watched while the rapist was at work.

This particular act of violence struck a well-aimed blow at one of Algerian society’s foundations: the virginity or ‘purity’ of women. It also attacked the manhood of Algerian men, which relied upon their ability to defend their women. Mouloud Feraoun echoes this when he writes: ‘the fellagha [Algerian nationalists] have advised women not to talk about these things, to refuse to allow the enemy to believe that he has touched the Kabylian soul, as it were, and to bear themselves as true patriots who subordinate everything to the liberation of their enslaved homeland.’

If the effectiveness of rape in wartime can be questioned, its purpose – psychological destruction – cannot be contested. No attempt was ever made by French authorities to justify the use of such force. However viewed, it was to be condemned for its effects both on Algerian society and on military efficacy. In this respect, rape differed from torture, which found numerous defenders – political, military, and even religious.

Rape, then, was a prohibited use of violence. Was it ever penalized or condemned? No precise conclusion is possible based on archival study. Nonetheless, as far as one can judge, two trends emerged. On the one hand, cases of rape were judged and condemned at the instigation of superior officers, who demanded that guilty men be handed over to tribunals to be tried for their crimes. On the other hand, rape seems to have been considered as collateral war damage – not something on which one needed to dwell. Rapists did receive punishment, but not through the legal process – and not from some superior officers, who apparently encouraged their men to rape, although urging them to use discretion.

Clearly, then, it was not sufficient for an act of violence to be prohibited by French legal codes and statutes in order for it to be effectively punished. Did these clear and repeated prohibitions in fact set limits on soldiers’ actions during the Algerian war? Torture was also prohibited theoretically, explicitly, and officially; its perpetrators, too, were liable in principle to be punished under the codes and statutes. In reality, however, torture enjoyed a much more ambiguous status; it was both prohibited and authorized. Depending upon the situation, a leader could seek refuge in these ambiguities. But once he had allowed torture to become entrenched, or had himself included it among the range of acceptable practices, it was impossible to step back. And the reality was that torture in Algeria went unpunished. If official texts condemned it, practice itself permitted and nurtured it, without any direct opposition being mounted by the high command or the broader political apparatus. The logic of war appeared to justify torture; thus, it would have been ‘illogical’ to punish it.

In fact, no trial of military torturers ever took place, with the exception of one trial held for inflicting death under torture. It concluded with the acquittal of the three officers who had admitted to their involvement. As long as torture was not subject to truly effective punishment, it was indeed – as Hans Kelsen defines it – an authorized practice. How, then, can we interpret the role of these acts of violence, especially torture, during the Algerian war?

The role of torture

The soldiers who carried out the acts of violence described above (with the exception of rapes in the course of searches, which as noted were never justified by military necessity) committed them in the context of their perceived duties. Did this influence the nature of the violence and the interpretations of it that one might offer? The monopoly on legitimate violence that is normally asserted by state agents proved problematic when military and police agents were confronted with acts of violence that were manifestly unlawful and explicitly prohibited to them. Was it lawful to carry out an unlawful and prohibited act of violence within the context of one’s duty as a soldier? If so, what were the implications of these practices for the state, a body whose legitimacy was perilously and closely tied to its legality?

These questions deserve special emphasis, since the Algerian events prompted a resort to specific acts of violence as basic weapons available to soldiers. In examining this violence, we touch precisely upon the domains of ‘reasons of state’: violence that is prohibited and officially denied, but authorized nonetheless to advance state interests.

The logic of reasons of state would normally entail limiting the violence to a small number of practitioners, such as members of the DOP. But instead, torture was widespread throughout the army, employed even by those who were not specialists in its application. These acts of violence, as I have already suggested, were both prohibited and authorized. This paradoxical state of affairs led the perpetrators to believe that their acts enjoyed a legitimacy founded in the requisites of war; the demands of the legal system, by contrast, seemed to them external, artificial, and perhaps unsuitable. Such a contrast gravely threatened a state seeking to reconcile, however tenuously, law and war. Operating outside the law had direct ramifications for the legitimacy of the French state. Soldiers who based their conceptions of legitimacy on military practice, and felt that the practice strengthened the army in the name of France, eventually sought to use force to influence the political direction of the country as a whole, through recurring attempts at military revolt. Examples here are numerous, from the hijacking of the aircraft transporting leaders of the FLN (National Liberation Front) in October 1956, to the bombardment of the Tunisian village of Sakiet in February 1958, to the creation of holding centers for prisoners in Algiers in 1957. (These last were totally clandestine centers that politicians felt obliged to legalize – to avoid losing complete control over them, or at least to maintain appearances.) It could also be argued that, as it transpired, the army had no need to stage a full-scale putsch. It had succeeded in imposing its will on the political system, a state of affairs that held as late as May 1958, when the French government fell and the military, under General Salan, finally succeeded in melding civil and military powers in Algeria.

It was only after General de Gaulle’s speech on self-determination for Algerians, on 16 September 1959, that the political authority gradually regained control of the military effort, while conscious that it incurred great risks in doing so. The principal proponents of all-out war and the harshest methods were removed. The commander-in-chief General Challe had to leave Algeria; efforts were made to exercise greater control over the DOP; and so on. But this reclamation of powers was only partial. Moreover, it encountered profound hostility from the new commander-in-chief, who rejected the meddling of politicians in war operations. And it was partially responsible for the failed putsch mounted in April 1961, led by Generals Salan and Challe. At the same time, some officers joined the ranks of the Organisation Armée Secrète (OAS), which sought to establish itself as an alternative army advancing a distinct political project. Only with the end of the Algerian war were the authorities able to smash this opposition and take back firm control of the army.

These difficulties arose as the direct result of the sense of unity existing within army ranks during the war years. Whatever the differences among the various units and headquarters, this solidarity held firm when it came to the basic objective entrusted to the army by the political authorities: to make Algeria French, then negotiate independence from the strongest possible position. This goal was nourished by an amalgam of ideas, by particular views of the Algerians, and by an atmosphere of war that undoubtedly provided support for the acts of violence described above, in particular of torture. Beyond the direct victims – people executed, tortured and raped – these acts of violence formed part of a political lexicon, aimed at the Algerian population as a whole. The latter became the principal prize in the war – a war waged against the nationalists whom the Algerians allegedly sheltered, aided, or feared. The Algerian population thus became the chosen field of battle.

The central place of torture in the system of control was clear from that point on. The population was both a source of information and the target of psychological warfare. It was necessary for the French to keep the Algerian people off-balance, while confronting the nationalists operating in their midst. Torture was not, therefore, simply one means of obtaining information. It was an essential weapon, allowing the French to fulfill their fundamental war aims. Torture was used not only to force people to talk, but to make them understand – and remember – who wielded power. Torture was effectively adapted to the new form of warfare that the army faced in Algeria. This was not because the war demanded more intelligence-gathering than other conflicts, but because it required control over the civil population. In this sense, torture was above all a political form of violence. Meanwhile, the question of violations of the law – though never ignored – was considered a side-issue by all relevant decision-makers.

Translated by Jo Jones