The Nuremberg Paradox

The Nuremberg Paradox
Author(s): LEILA NADYA SADAT

Source: The American Journal of Comparative Law, Vol. 58, No. 1 (WINTER 2010), pp. 151-
204
Published by: Oxford University Press
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LEILA NADYA SADAT*
The Nuremberg Paradox
The United States is generally proud of its leadership role at the

Nuremberg trials, making America's current rejection of the precedent
they established seem paradoxical. This Article approaches the "Nu
remberg Paradox" by examining the French experience with the
Nuremberg trials, and comparing France's adoption and internaliza
tion of international criminal law to that of its American cousin. The
Article concludes that an important reason that the Nuremberg prin
ciples never took root in the United States stems from the different
legal 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 law
in France and the United States, one is struck by the long-standing
legal, philosophical and political differences exhibited by the two
countries' approaches, and perhaps most starkly, by the differences
that appeared during the negotiation, adoption, and ratification of the
International Criminal Court Statute in 1998. Indeed, although the
French Parliament was willing to ratify the ICC Statute and at the
same time adopt a constitutional amendment abrogating the immuni
ties and future amnesties granted to its own members and the
President of the French Republic, U.S. opposition to the treaty has
been consistent and, at times, overwhelming. In exploring these differ
ences, the Article surveys the interwar scholarship, the post-World
War II prosecutions of Vichy collaborators and former Nazis in the
Touvier, Barbie, and Papon cases, and France's more recent exercises
of 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 Fourth
Annual 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 Law
Theory Workshop and the Washington University Faculty Colloquium for helpful sug
gestions. A special thanks to M. le President Bernard Ducamin for his extraordinary
assistance in obtaining primary source materials and interviews, and to Professors
Kenneth 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 for
their 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 support
and to Dean Kent Syverud for graciously and generously supporting this project.
151
152 the american journal of comparative law [Vol. 58
nal law. The implications of the French experience are analyzed in
light of Harold Koh's transnational legal process theory, which cap
tures the process by which France internalized the Nuremberg
principles, but does not explain why that process took hold in France
but not in the United States. The Article's central claim is that deeper
historical, 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 only
superficially and sporadically enforceable in the United States.
I. Introduction
The United States of America is generally proud of its leadership

in the trial of the major German leaders at the end of World War II at
Nuremberg.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, and
willingness to rely upon principles of law and justice, instead of just
power, in assuming the mantle of world leadership.2 While there was
criticism of the trials in the United States,3 once the decision was
made to hold trials rather than executions, Nuremberg became an
"American show":
Although the cooperation of other nations was genuine and
sincere, there is ample proof to show that Nuremberg was a
100 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 this
trial will come to be regarded as ranking with the Magna Charta, the habeas
corpus and the Bill of Rights as landmarks in the development of law. The
Nuremberg principle goes deeper into the problem of peace, and its effect
may prove to be more far-reaching than anything else that has yet been
agreed 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, The
Anatomy of the Nuremberg Trials (1992); Christopher J. Dodd, Nuremberg: Past,
Present and Future, 6 Wash. Univ. Global Studies L. Rev. 645 (2007).
2. Whitney R. Harris, Tyranny on Trial 496, 567-70 (1999). The trials were
evoked 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 long
haul', 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 of
the 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 at
the 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).
2010] THE NUREMBERG PARADOX 153
American persistence, and American idealism that produced
the final result in the face of serious difficulties."4
The drama playing out in the bombed ruins of the city of Nuremberg
had its echos in San Francisco, where the Charter of the United Na
tions was elaborated, this time on American soil, and again, with
American ideas predominating the conversation. It was a heady time,
and to many, the Nuremberg trials seemed to lay the foundation for a
new post-war world order that would be based upon the rule of law
and led by the United States of America. As The New Yorker editori
alized on September 15, 1945, "[the] Nuremberg trials . . . are
exciting because they are the unconscious expression of the universal
desire for a broader legal structure, and hence for a higher social
structure."5
Against this historical framework, America's current approach to
the Nuremberg principles appears paradoxical. American "owner
ship" of the Nuremberg legacy has resulted in only tepid support for
the Nuremberg principles by successive U.S. administrations, partic
ularly as regards U.S. conduct. (Indeed, the London Charter
establishing 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 devastated
Nagasaki. )6 These principles, as articulated by the Judgment of the
International Criminal Tribunal at Nuremberg, and subsequently
codified by the United Nations, state that international law may
criminalize war crimes, crimes against humanity and crimes against
peace, and enforce them against persons using an international tri
bunal to do so; that no individual may commit these crimes with
impunity, not even a head of State and; that neither municipal law
nor following orders exonerates an individual charged with these
crimes from criminal responsibility for them (although the latter may
be used to mitigate punishment).7
4. Ernest O. Hauser, The Backstage Battle at Nuremberg, Saturday Evening

Post, 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 the
same article, however, the editors judged this goal unattainable given that the new
United 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'l
Crim. J. 800 (2006); Symposium, Judgment at Nuremberg, 6 Wash. Univ. Global
Stu. L. Rev. 483-771 (2007).
6. The Agreement for the Prosecution and Punishment of Major War Criminals
of the European Axis, August 8, 1945, [hereinafter London Agreement]; Charter of
the 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 the
United Nations General Assembly, 1 U.N. GAOR (Part II) at 188, U.N. Doc. A/61/
Add.l (1946). See also Report of the International Law Commission to the General
Assembly, 4 U.N. GAOR Supp. No. 10, at 1, U.N. Doc. A/925 (1949).
154 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
Much has been written about Nuremberg and Vietnam, and this
Article will not examine that epoch in U.S. history. Others, including
myself, have also noted recent infelicitous departures from the Nu
remberg principles in the conduct of the so-called "Global War on
Terror,"8 again a subject not taken up here. America's rejection of the
Nuremberg precedent has been starkest in its sometimes bruising op
position to the International Criminal Court, an opposition that has
baffled 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 why
America never embraced the Nuremberg principles after 1946, but,
sacre bleu (!), to France. In spite of spats over "freedom fries" and
genuine differences regarding foreign policy, particularly as regards
the projection of American power, the French Republic and the
United States of America have many things in common making such
a project useful and instructive?an abiding commitment to human
rights and the rule of law, a sense of moral superiority, chauvinism
about their language and culture, and a belief in their own impor
tance as civilizing influences.9 Indeed, in understanding how and
why France came to ratify the ICC Treaty with relative ease, we are
led to interesting insights as regards the legal obstacles to the ICC's
ratification in the United States.
This study suggests that at least one reason that the Nuremberg
principles never took root in American soil lies in the different legal
cultures and traditions of the two countries, particularly as regards
the field of international criminal law. To put it neatly, French judges
seem to have been able to incorporate the Nuremberg principles as a
matter of French municipal law in a way that their American coun
terparts never did. In America, ironically, a nation of lawyers, the
Nuremberg principles remain non-justiciable, surviving largely as a
symbol of power politics. In France, the Nuremberg principles are,
instead, a matter of law. The question of course, which this Article
endeavors 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. Cherif Bas
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 references
to 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 forthcoming
book.
On July 17, 1998, the Treaty Establishing the International
Criminal Court was adopted in Rome with great fanfare.11 On June
9, 2000, The French Republic became the twelfth State to ratify the
treaty. Although there was little doubt that France would join the
Court, its support had not been a foregone conclusion during the
Treaty's negotiation. France, like the United States, had concerns
about the possible constraints the treaty might impose on French
military operations, and although the French government had ac
tively participated in the negotiations, it joined the coalition of the
States supporting the ICC's establishment (the "Like Minded" group)
late and reluctantly.12 Even after the French government signed on
to the treaty the French Constitutional Council (Conseil Constitution
al) held, on January 22, 1999, that the Statute's ratification
required prior amendment of the French Constitution because the
Rome Statute impinged upon Presidential and other immunities and
the possibility of French amnesty laws.13
The response to the Constitutional Council's decision by the
French government was straightforward: France amended its Consti
tution to permit ratification, abolishing Presidential and other
immunities (among other things) in order to do so.14 Parliamentary
debates concerning both the ratification of the Treaty and the amend
ment of France's Constitution were entirely supportive, even
passionate, about the need for the French government to put aside
narrow concerns of self-interest, and support the International Crim
inal Court?in the interest of France, and all humanity. Failure to
ratify the treaty was never a serious option among members of the
Executive and Legislative branches, and although France, like other
major powers, had its own foreign policy preoccupations to address
during the Treaty's negotiation, including protecting its military per
sonnel, once the Treaty had been adopted, French ratification was
completed without controversy or particular fanfare.15
11. Leila Nadya Sadat, The New International Criminal Court: An Uneasy
Revolution, 88 Geo. L.J. 381 (2001) (with S. Richard Carden).
12. On the so-called "like minded" group of States, see Leila Nadya Sadat, The
International 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 Negotiating
Process, 93 Am. J. Int'l L. 2, 4 (1999). Some writers have suggested that civil society
played an important role in shaping French policy, which may be true, and yet it does
not explain why civil society failed to promote support for the Court in the United
States.
13. Conseil Constitutionnel decision no. 98-408DC, January 22, 1999, J.O. 1317.
14. Loi constitutionnelle no. 99-568 du 8 juillet 1999 inserant, au titre VI de la
Constitution, un article 53-2 et relative a la Cour penal internationale. Article 53-2
provides 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 (as
the United States could have done), a decision it subsequently revoked. United Na
tions, Rome Statute of the International Criminal Court: France Ratification, June 21,
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 committee
that would ultimately take up the Statute's ratification), announced
that the International Criminal Court would be "dead on arrival" if
the United States did not have veto power over which cases could be
brought.16 Government officials expressed concern over the prospect
of an international war crimes court that might investigate the activ
ities of U.S. soldiers, but, unlike their French counterparts, were
unwilling to be persuaded that adequate safeguards could ever be put
into place that could protect U.S. (and their own) interests.17 The Ex
ecutive Branch, under President Bill Clinton, expressed support for a
Court 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 of
the Conference was defensive, and only hardened as the Diplomatic
Conference progressed. This led to a battle of wills between the
United States and other nations and finally a humiliating diplomatic
American defeat as the Treaty was adopted, over U.S. objections, by
2000, available at http://treaties.im.Org/doc/Treaties/1998/l 1/19981110%2006-38%20

RPM/Related%20Documents/CN.404.2000-Eng.pdf; United Nations, Rome Statute of
the 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 over
war crimes for a seven year period, when a crime is alleged to have been committed by
its 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 to
invoke article 124 in ratifying the Statute, and was heavily criticized internationally
and internally (especially by many Parliamentarians) for doing so. Dominic McGold
rick, Peter J. Rowe, & Eric Donnelly, The Permanent International Criminal
Court: Legal Policy Issues, 372-73 (2004). In September 2008 France withdrew its
reservation under article 124 (which would have expired on July 1, 2009 in any
event), perhaps to signal its support for the Court or perhaps to demonstrate that
France 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 at
www.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, the
fact that France did so does not tell us much about the difference between the two
countries approaches to the Court.
16. Barbara Crossette, Helms Vows to Make War on UN Court, N.Y. Times, Mar.
27, 1998, at A9. Helms Declares U.N Criminal Court uDead-on-Arrival" in Senate
without U.S. Veto, Cong. Press Releases, Mar. 26, 1998.
17. Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center
for Strategic and International Studies, Washington, D.C. (May 6, 2002) (prepared
remarks available at http://www.state.gov.p/us/rm/9949.htm). Secretary Grossman
promised that: Notwithstanding our disagreements with the Rome Treaty, the United
States respects the decision of those nations who have chosen to join the ICC; but they
in turn must respect our decision not to join the ICC or place our citizens under the
jurisdiction of the court.
18. Http://www.state.gov/www/global/swci/OO 123 l_clinton_icc.html. Statement on
the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 37(1) Weekly
Compilation of Presidential Documents 4 (2001).
an overwhelming vote of 120-7.19 Returning to Washington to face
the Senate Foreign Relations Committee, the U.S. head of delegation,
then Ambassador at Large for War Crimes, David J. Scheffer, was
peppered with questions concerning the treaty and its import for U.S.
foreign policy. Few members of the Senate expressed support for the
Court,20 and although President Clinton ultimately signed the Rome
Statute on December 31, 2000, it was subsequently "unsigned" by his
successor, George W. Bush.21 President Bush abandoned the
Clintonian approach of cautious (even if unsupportive) engagement
with the Court in favor of a policy of outright hostility. So adamant
was the Bush administration in its criticism of and disdain for the
Court that countries supporting the Court found themselves on the
receiving end of punishing treatment from the U.S. government.22
What was it in French history that permitted a Parliament to
support a treaty and to adopt a constitutional amendment abrogating
the immunities and future amnesties granted to its own members
and even the President of the Republic? How is it that France?a nu
clear power with an active international military presence23?came
19. Sadat, supra note 11, at 384. Bartram S. Brown, U.S. Objections to the Statute
of 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 on
Foreign 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 at
http://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 in
Washington? U.S. Policy Towards the International Criminal Court, 21 Wise. Int'l
L.J. 557 (2003); National Security Council, The National Security Strategy of the
United States of America 31 (Sept. 15, 2002); Kenneth Roth, Exec. Dir. Human Rights
Watch, Human Rights, American Wrongs, The Fin. Times, July 1, 2002, available at
http://hrw.org/english/docs/2002/07/01/usintl2891.htm.
22. The Bush administration softened its opposition to the Court in its second
term, see, e.g., Speech by Secretary of State Condoleezza Rice, San Juan, Puerto Rico,
Mar. 10, 2006, available at http://www.state.gov/secretary/rm/2006/63001/htm. The
United States abstained from the Security Council Resolution referring the situation
in Darfur to the ICC, http://www.un.org/News/Press/docs/2005/sc8351.doc.htm, and
has 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. objections
to 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 the
second 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 at
http://www.defenselink.mil/com
lease.pdf; Center for Strategic and International Studies, European Defense Spending
Outlook, 2009 (Jan. 1, 2009), available at http://www.csis.org/media/csis/pubs/
090121_european_defense_spending.pdf. Likewise, the French armed forces number
to see ratification of the International Criminal Court (ICC) treaty as

so important? Why has the French experience with the ICC Treaty
and its ratification been so different than the U.S. experience, partic
ularly given the U.S. support for and continued evocation of the
Nuremberg trials as a watershed event in world history, and an event
in which the United States played the leading role?
The answer to this question is complex, and much could be made
of the fact that France, unlike the United States, is now bound up in
a supranational regional organization (the European Union) and
therefore better adapted to international treaty regimes that require
major constitutional and psychological change. Yet that alone does
not explain the French perspective, and France has a long history of
euroscepticism suggesting that it is perfectly capable of rejecting in
ternational cooperation when it feels threatened. DeGaulle's "empty
chair" policy,24 the extraordinarily narrow support for the Treaty on
European Union,25 and the recent rejection of the European Consti
tution by French voters26 suggest that support for international or
multinational organizations in France is neither to be always as
sumed, nor consistently forthcoming.
Instead, the central claim of this Article is that the answer to
this question lies, at least in part, in French legal culture. This cul
ture is very different from our own, in spite of the many
characteristics France and the United States share. More particu
larly, the answer lies in the legal norms (and culture) concerning the
incorporation of international norms?particularly treaties?by their
respective domestic legal systems. As Emmanuelle Jouannet recently
259,000 regulars and 419,000 reserves, which is the largest in Europe. France Boosts
Spending 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 Years
On (Jean Marie Palayret, Helen Wallace & Pascaline Winand eds., 2006) and Brigid
Lafifan & Soni Mazey, European Integration: the European Union ?reaching an equi
librium?, European Union: Power and Policy-Making 39-40 (Jeremy John
Richardson ed., Routledge 2005); see also P.J.G. Kapteyn & P. VerLoren van
Themaat, 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 a
margin of just over fifty-one % in favor. Catherine Goybet, Le Oui a Maastricht. . . et
apres?, Revue du Marche Commun et de l'Union Europeenne, Sept.-Oct. 1992 at
681 (discussing France's tepid support of the European Union). Jean-Marie
Colombani Pieges 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 unanimous
support. Katrin Bennhold, France Rejects E.U. Constitution, Int'l Herald Trib., May
29, 2005, available at http://www.iht.coni/articles/2005/05/29/europe/web.0529france.
php.
wrote in her excellent study of French and American perspectives on
international law, "there does not exist any global or cosmopolitan
vision of international law, but, on the contrary, an inevitable multi
plicity of particular national, regional, individual, and institutional
visions."27 Each country develops its own approach to international
law because of the singularities of its legal culture and its legal tradi
tions?a culture shaped by its history, sociology and place in the
world.28 France and the United States have developed legal systems
stemming from their particular experiences29?France influenced by
the Roman law tradition, the French Revolution, and the Napoleonic
Code;30 the United States by the common law received from En
gland31?and by the accidents of history that have led (or not) to the
acceptance of particular norms and the development of constitutional
structures.32
With respect to the Nuremberg principles, there was, unlike the
American experience, a long and respected tradition embraced by
French academics and politicians supporting not only the interna
tional criminal trials after World War I and World War II as
potentially applicable to the Germans, but as the building blocks for
the establishment of a permanent system of international justice.
The writings of prominent academics were particularly important in
a system of law that treats those writings (la doctrine) as highly in
fluential and as potential sources of law?much more so than in the
United States.33 The influence of these writings can be felt in the
27. Emmanuelle Jouannet, French and American Perspectives on International

Law: Legal Cultures and International Law, 58 Maine L. Rev. 292, 292 (2006).
28. On legal traditions generally, see H. Patrick Glenn, Legal Traditions of
the 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 of
International 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 the
U.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 crimes
against humanity into French law challenges the traditional notion of civil law courts
as restricted to passively applying legislative enactments.
30. For a description of the French legal system and its origins see, e.g., John
Bell, Sophie Boyron & Simon Whittaker, Principles of French Law 1-9 (1998);
John P. Dawson, The Oracles of Law (1963); Ren? 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 to
overstate either the influence of academics and their writings (la doctrine) or exagger
ate the differences between the common law world and France. Yet subtle differences
do 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,
address of Chief Prosecutor Francois de Menthon to the International

Military Tribunal at Nuremberg, given at the opening of the French
case against the Nazis on January 17, 1946:
We believe that there can be no lasting peace and no certain
progress for humanity, which still today is torn asunder, suf
fering and anguished, except through the cooperation of all
peoples 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 the
Nuremberg principles; indeed, it seems fairly clear that even the
chief advocate of the Nuremberg trials for the United States, Justice
Robert Jackson, did not argue the case against Nazis, trying to con
vincing his audience of the need for a permanent international war
crimes tribunal. Rather, for the most part he remained within the
context 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, in
reaction, incorporated the Nuremberg charter into French law as a
potential basis for future prosecutions. As Gary Bass has written, it
may be that a nation is more likely to embrace war crimes trials if its
own nationals were victimized during the conflict.36 Yet it was still
surprising when, many years after the war, France held crimes
against humanity trials in the cases of Paul Touvier, Klaus Barbie,
and Maurice Papon. Each of these trials permitted French society to
see the Nuremberg principles not just as precepts of international
law applicable as a matter of "victor's justice" (to Germans) but as
principles of law directly applicable even to Frenchmen for crimes
committed on French soil. The jurisprudence from those cases is rich,
and I have written about it extensively elsewhere. What those cases
underscore 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, is
highly influential in France, even if not a formal source of law due not only to historic
reasons 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. Francois de Menthon, Chief Prosecutor for the French Republic, Opening
Statement to the International Military Tribunal at Nuremberg, January 17, 1946,
reprinted in The Trial of German Major War Criminals by the International
Military Tribunal Sitting at Nuremberg, Germany: Opening Speeches of the
Chief 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 Nurnberg 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).
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 crimes
against humanity, war crimes, and genocide provisions.39 Part III
briefly explores the French Experience with these new laws as a com
ponent of a new system of international and transnational criminal
justice that began in the 1990s with the establishment of the two ad
hoc Tribunals for the Former Yugoslavia and Rwanda, and which
was accompanied by a general, perceptible international shift away
from impunity for the commission of international crimes towards a
regime of accountability therefore.40 Indeed, requiring accountability
for past crimes has been posited as a remedy to impunity, as well as a
necessary, if not sufficient, predicate for the re-establishment of
peace.41 Accordingly, the establishment of the International Criminal
Tribunals for Rwanda (ICTR) and the Former Yugoslavia (ICTY), the
Special Court for Sierra Leone (SCSL), the Special War Crimes
Panels for East Timor and, more recently, the Khmer Rouge Tribunal
in Cambodia, was conceived of by the international community as a
means (although not the means) to reestablish peace and stability,
37. See Leila Sadat, The Interpretation of the Nuremberg Principles by the French
Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat'l
L. 289, 317-18 (1994) (formerly Wexler).
38. Indeed, the MedelUn decision appears to set aside the language of the
Supremacy 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 MedelUn, see Luke A. McLaurin, Medellin v. Texas and
the 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: The
Supremacy 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 a
discussion 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, On
the Current Trends Towards Criminal Prosecution and Punishment of Breaches of
International Humanitarian Law, 9 Eur. J. Int'l L. 3-4 (1998); Mark J. Osiel, Why
Prosecute? 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: The
Case 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 Prosecute
Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 451 (1990). See
also Carlos Santiago Nino, Radical Evil on Trial (1996).
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 drew
heavily 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 ad
hoc 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 questions
regarding the relationship between international and domestic
norms. Many scholars have studied the incorporation?either as a
matter of law or as a question of foreign relations?of international
norms by municipal legal orders, noting the existence of transna
tional legal processes that lead courts, especially, to adopt
international norms.45 The French experience with the Nuremberg
principles provides an extraordinary example of this thesis in ac
tion?an opportunity to observe first hand the struggle with, and
ultimate acceptance of, an international legal norm by a domestic le
gal order, and not just by courts, but by political elites as well. It
provides an opportunity to observe empirically what scholars have
postulated 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 as
regards the exercise of "pure" universal jurisdiction for crimes committed outside of
French territory is perhaps to be contrasted with the recent willingness of the French
government to act more decisively if its nationals or some other national interest is
involved. This was evidenced by France's willingness to tolerate a rupture of diplo
matic relations with Rwanda over terrorism allegations levied by French
investigating judge Jean-Louis Bruguiere against Rwandans, including Paul
Kagame, Rwanda's current president, for the attack that brought down the aircraft
carrying the former presidents of Rwanda and Burundi in 1994. For a discussion of
the interesting issues raised by the Rwandan genocide and the transnational lawsuits
it has spawned, see Leila Nadya Sadat, Transnational Judicial Dialogue and the
Rwandan Genocide: Aspects of Antagonism and Complementarity 22 Leiden J. Int'l
L. 543 (2009.
43. U.S. leadership was critical to the establishment of the ICTY and ICTR, the
Special Court for Sierra Leone, and even in bringing the Sudan situation to the U.N.
Security Council. Warren Hoge, UN will refer Darfur crimes to court in Hague, Int'l
Her. Trib., April 2-3, 2005, at 6.
44. See, e.g., Sadat, supra note 21. France has supported both the ICC and the ad
hoc Tribunals, but has also been inconsistent in its willingness to apply the norm of
accountability to its own activities, as evidenced by the refusal to squarely address
allegations 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?, 106
Yale L.J. 2599 (1997); Harold Hongju Koh, Bringing International Law Home, 35
Hous. L. Rev. 623 (1998); Anne-Marie Slaughter & Laurence R. Heifer, Toward a
Theory 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 Creating
and Enforcing International Law, 93 Geo. L. J. 487 (2005).
adopt and embrace a particular set of international legal rules, even
rules that may appear contrary to self interest, at least to some
constituencies.
I conclude that while transnational legal process theory captures
the process by which France internalized the Nuremberg principles,
it cannot explain why that process took place in France. Moreover, I
reject the conventional wisdom that the explanation for "American
Exceptionalism" is limited to the invocation of America's superpower
status, without more. Instead, I argue that deeper historical, cul
tural, and social factors that influenced French legal culture can
profoundly illuminate our understanding of how and why interna
tional criminal law came to deeply penetrate French law while it
remains only superficially and sporadically enforceable in the United
States. Note that I do not claim that politics play no role in a State's
willingness to embrace accountability measures. Political will is a
necessary condition for the application of justice, and France, like the
United States, has had its difficulties with questions of accountabil
ity, for example, for the Algerian war. What I do suggest, however, is
that while political will may be a necessary condition, it is not in and
of itself a sufficient one, and that politics and law interact in a mutu
ally reinforcing system that plays out differently in different
countries depending upon their legal culture.
Finally, I observe that the international norms embedded in the
French 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 political
elites have modified their provisions to suit the taste and particulari
ties of French political life and foreign policy. The French courts have
not been passive recipients of international norms, and their own ju
risprudence has been widely cited before the International Criminal
Tribunals for the Former Yugoslavia and Rwanda.46 In this way, the
French jurisprudence is, to paraphrase the International Military
46. Indeed, the ICTY recently relied upon the Barbie case in an opinion defining
the 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. Mrksic et al., Case No. IT-95-13/1-T, Judgment (Sept. 27, 2007); Prose
cutor v. Plavsic, Case No. IT-00-39 & 40/1-S, Sentencing Judgment (Feb. 27, 2003);
Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment (Aug. 2, 2001); Prosecutor v.
Blaslric, Case No. IT-95-14-T, Judgment (Mar. 3, 2000); Prosecutor v. Kupreski et al.,
Case No. IT-95-16-T, Judgment (Jan. 14, 2000); Prosecutor v. Tadic, Case No. IT-94-1
T, Judgment (May 7, 1997); Prosecutor v. Erdemovic, Case No. IT-96-22-T, Sentenc
ing Judgment (Nov. 29, 1996). For citations to the French crimes against humanity
cases 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 (citing
Barbie); 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).
Tribunal at Nuremberg itself, both an expression of and, at the same
time, 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 States
parted company as far as the construction of an international system
of justice was concerned. While some of this can be accounted for by
the many formal differences existent between the approach of conti
nental and U.S. lawyers towards international law,48 those
differences were exacerbated as a practical matter by the U.S. deci
sion to abandon the League of Nations project. America's failure to
enter the League removed American lawyers and academics, for the
most part, from the intellectual and political currents that would cre
ate a legal culture open to the development of international law and
institutions 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. Frederic
L. Kirgis, The American Society of International Law's First Century 1906
2006, 55-155 (2006). Many of the Society's founders such as Manley O. Hudson and
Elihu Root believed that if the public were educated about international law, govern
ments, and particularly democratic governments would be pressured to obey
international 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 the
development and codification of international law included the Harvard Research pro
ject on International Law codification, which began in 1928, and law related projects
supported 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 international
law in principle were typically mute (or negative) on the subject of its application to
individuals. See, e.g., Manley O. Hudson, Editorial Comment: The Proposed Interna
tional Criminal Court, 32 Am. J. Int'l L. 549 (1938), and when the Society was faced
in the 1930s with the specter of another war, it reacted with detachment, due perhaps
to a lack of faith in international law given, in particular, the failure of the United
States to join the League and the Permanent Court. Kirgis, supra, at 154-55. See also
Janis, supra note 28, at 150-54 (on the optimism of Root and others prior to World
War 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 the
structure 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 http://
www. fordham. edu/halsall/mod/1918 wilson .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, and
during the elections of November, 1918, the Democrats lost control of
both Houses of Congress.52 The Paris Peace Conference ultimately
adopted a consensus document calling for the establishment of the
League, to come into force later with the drafting of a Covenant and
the adoption of the Treaty of Versailles,53 but by the time Wilson had
signed the Treaty and returned to the United States he had lost the
political support he needed to assure the Covenant's acceptance by
the Senate.54 Ratification failed, some say, due to the Treaty's sup
porters who refused to accept the reservations attached by
Republican Senator Lodge, the powerful chair of the Senate Foreign
Relations Committee; others blame the Treaty's opponents. Whatever
the "truth" of the matter, there is little doubt that stubbornness on
both sides destroyed the possibility of compromise that would have
permitted 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 the
constitution of an international "high tribunal" for the trial of "all
enemy persons alleged to have been guilty of offences against the
laws and customs of war and the laws of humanity,"56 the American
members of the Commission objected. The U.S. delegates, Robert
Lansing and James Brown Scott, both prominent members of the
American Society of International Law,57 observed that there was no
51. See Thomas J. Knock, To End All Wars: Woodrow Wilson and the Quest
for a New World Order 184-89 (1992).
52. F.P. Walters, A History of the League of Nations 25 (1960); Jonathan
Zasloff, Law and the Shaping of American Foreign Policy: From the Gilded Age to the
New 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 generally
Margaret MacMillan, Paris 1919: Srx 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, 35
against; however, 23 of those voting against the Treaty were actually supporters of
the League who were opposed to Lodge's reservations. Id. at 71. See Edward C Luck,
Mixed Messages: American Politics and International Organization 1919-1999
50, 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 Professor
of International Law at Harvard Law School in 1923, a position that he held until
1954, 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 in
international law while serving as technical advisor to the American Commission at
the 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
international law to be applied, no international court with jurisdic

tion, and that the trials would violate State sovereignty, particularly
as regards the attempt to impose criminal liability on a head of
State.58 The trials ultimately held pursuant to the Treaty of Ver
sailles were a fiasco;59 and the U.S. abandonment of the League is
often pointed to as at least one reason for the League's demise.60
Yet the notion of international criminal law and accountability
were not nearly as dormant as a cursory examination of the Post
World War I practice suggests,61 particularly if we remove ourselves
from American soil.62 For beneath the frozen surfaces of formal inter
national institutions was a ferment of activity. Renowned continental
scholars of international law?including Hugh Bellot, Henri Don
nedieu de Vabres, Andre Gros, Rene Cassin, Albert de LaPradelle,
Vespasian Pella, Jean Andre Roux, and other distinguished academ
ics?were writing articles supporting the establishment of
international institutions and legal regimes to promote accountabil
ity and human rights throughout the 1920s even though the modern
day 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, Droit
Penal 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 International
Criminal Court: A Step Toward World Peace - Documentary History and Analy
sis 40 (1980). These writings were not particularly influential, however, and unlike
Pella and de Vabres' books and articles, do not appear to have received wide
attention.
63. See, e.g., Hugh H.L. Bellot, La Cour Permanente international criminelle, 3
Rev. Internationale de Droit P?nal 333-37 (1926); M. A. Caloyanni, The Perma
nent International Court of Criminal Justice, 2 Rev. Internationale de Droit P?nal
326-54 (1925); M.A. Caloyanni, La Cour criminelle Internationale, 5 Rev. Internatio
nale de Droit P?nal 261 (1928); Henri Donnedieu de Vabres, La Cour permanente de
Justice Internationale et sa vocation en matiere criminelle, 1 Rev. Internationale de
Droit P?nal 175 (1924); Albert de Lapradelle, Declaration des droits et devoirs des
nations, art. 4, in 1925 Annuaire at 238, 239. Albert Levitt, A Proposed Code of Inter
national Criminal Law, 6 Rev. Internationale de Droit P?nal 18 (1929); Vespasian
Pella, Rapport sur un projet de statut d'une Cour criminelle Internationale presente au
Conseil de direction de VAssociation Internationale de droit penal, 5 Revue Internati
onale de Droit P?nal 265 (1928); Lord Phillimore, An International Criminal Court
and 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 idea
was warranted); Jean Andre" Roux, A propos d'une Cour de cessation Internationale,
Baron Descamps, the Belgian President of the International Commit
tee of Jurists that prepared the Statute of the Permanent Court of
International Justice, proposed (unsuccessfully) a resolution that
would have permitted the Court to "try crimes constituting a breach
of international public order or against the universal law of na
tions."64 Seconding the plan, Donnedieu de Vabres, who would later
become the French judge at Nuremberg, wrote in 1924,
In our eyes, the essential role of the Permanent Court, in
criminal matters, will be as a regulating Court charged with
preparing, through jurisprudential means, an international
solution to conflicts within its jurisdiction. So long as . .. this
result remains elusive, anarchy will reign in the domain of
international criminal law.65
Commenting upon this trend in a brief and unenthusiastic essay on
the subject of an international criminal court penned in 1938, the
great American international law professor, Manley O. Hudson, re
ferred to this body of scholarship as revealing "the spell which the
idea 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 appreciably
reduced by the institution of a criminal court is probably a delusion
"67)
Professional associations of lawyers and academics took up the
question of an international criminal court in the 1920s. For example,
the International Law Association voted in 1922 at its Buenos Aires
Conference 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 Penal 12 (1929); J.A. Roux, L'entr'aide des etats
dans la lutte contre la criminalite, 36 Recueil des Cours 77 (1931); Q. Saldana, La
justice penale 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 Rene Cassin, Le Contentieux
des victimes de la guerre: Etude de la jurisprudence concernant les pensions
de guerre et l'adoption des pupilles (1924-1925); henri donnedieu de vabres, La
Repression Internationale des delits de droit des gens (1935); Henri Donnedieu
de Vabres, Les principes modernes du droit penal international (1928); Henri
Donnedieu de Vabres, Introduction a l'etude du droit penal international
(1922); Albert Geouffre de LaPradelle, Les principes generaux du droit inter
national (1929); Bernard de Francqueville et Albert Geouffre de Lapradelle,
l'oeuvre de la cour permanente de justice internationale (1928); vespasian
Pella, La criminalite collective des etats et le droit penal de l'avenir 360 (2d
ed. 1926); H. von Weber, Internationale Strafgerichtsbarkeit 176 (1934). But see
J.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 be
desirable 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.
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 draft
statute itself, which was subsequently sent to an ILA committee for
further study.)68 The report was enthusiastically embraced by
Romanian scholar Vespasian Pella,69 who had continually advanced
the idea of an international criminal court through his work and pro
fessional associations, however, and the ILA ultimately adopted a
draft 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 a
permanent international criminal court and, incidentally, taught a
young Egyptian lawyer, M. Cherif Bassiouni, who was destined to be
come the Chair of the Drafting Committee of the U.N. Diplomatic
Conference that adopted the Court's Statute in 1998.71 Pella became
particularly influential as both the President of the International As
sociation of Penal Law, established in Paris in 1924, and as
Romania's minister at the League of Nations.72 Both the Interna
tional Association of Penal Law73 and the Advisory Committee of the
League of Nations74 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 an
international criminal court, as suggested by the remarks of con
servative statesman Raymond Poincare,75 who opined, in 1925, that,
"A judicial penal organization and the application of sanctions to the
crime 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 three
dissenting votes. Unfortunately, no record is available as to which members objected.
71. Pella summarizes much of his earlier work in Vespasian V. Pella, Towards an
International Criminal Court, 44 Am. J. Int'l L. 37 (1950). See also Foreword: Taking
Aim at the Sky, The Theory and Practice of International Criminal Law: Essays
in Honor of M. Cherif Bassiouni (Leila Nadya Sadat & Michael P. Scharf eds.,
2008).
72. M. Cherif Bassiouni, A Century of Dedication to Criminal Justice and Human
Rights: The International Association of Penal Law and the Institute of Higher Studies
in 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. A/CN.4/7/Rev.l, U.N. Sales No. V.8
(1949).
74. Proces-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 Poincare served as Prime Minister on five separate occasions and as
President of France from 1913 to 1920.
pursue if it desires that its beautiful dream of universal peace become
an enduring reality."76
Poincare's enthusiasm notwithstanding, it must be admitted
that generally speaking, political elites were not yet ready to accept
the notion of an international court with jurisdiction over the crimes
of individuals. (A treaty to establish an international terrorism court
was adopted in 1937; however, no state ratified the text and it never
entered into force.)77 Although these efforts were not politically suc
cessful, the extensive and probing legal debates they inspired
developed both a cadre of individuals with substantive expertise in
international criminal law and adjudication, as well as the develop
ment of doctrine ready to be employed once political opportunity
arose.
B. The Occupation of France and the Nuremberg Trials

In June, 1940, France was overrun by Hitler's army and
into an armistice under which northern France, including Par
under German occupation.78 On June 14, 1940, the Swa
placed the Tricolore at the Paris Hotel de Ville,79 and on June
French-German armistice was signed in the forest of Comp
Until November 1942, the southern portion of France, inclu
town of Lyon, remained unoccupied by the Germans and w
erned by a French administration headed by Marechal Peta
spa town of Vichy.81 A French government in exile, La Comi
gais pour la Liberation Nationale, led by General Charles
took up residence in London, along with eight other Europ
ernments in exile, and DeGaulle and the French resistanc
occupied and unoccupied France took up arms against the G
While DeGaulle joined the allies, the Vichy government
rated with Berlin, supplying money and material to the Germ
machine, and, infamously, participating in Hitler's terrible
exterminate the Jews of Europe. Some courageous individu
out against the mistreatment of the Jews of France. Even
val, Petain's Minister of State who was seen as the arch
Vichy's collaboration with the Nazis,82 allegedly did not know
76. Cited in Ferencz, supra note 62, at 24-25.

77. Only ten states signed the convention. Geoffrey Marston, Early At
Suppress Terrorism: The Terrorism and International Criminal Court Conv
1937, 73 Brit. Y.B.Int'l L. 293 (2002).
78. Taylor, supra note 1, at 23. See also Ted Morgan, An Uncertain
(1990).
79. Herbert R. Lottman, The Fall of Paris 297, 329-43 (1992).
80. Georges Vedel, Manuel Elementaire de Droit Constitutionnel 257-58
(1949). See also Dominque Veillon, La Collaboration: Textes et Debats 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.
nal fate of those deported until 1943, and took some steps to protect
French (but not foreign) Jews, thereby mitigating the slaughter.83
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 the
deportation, which resulted in the transfer of more than 140,000 per
sons from France, an estimated 75,000 of whom were Jewish, to Nazi
death camps.84
Meanwhile, as the war raged, the allies determined that the per
petrators would be punished, issuing declarations to that effect and
creating a "United Nations War Crimes Commission" to identify war
crimes suspects and to collect and organize evidence of and about war
crimes, as well as to establish "some machinery ... for dealing with
atrocities committed on racial, political or religious grounds."85 On
November 1, 1943, the Allies gathered in Moscow and formally de
clared their intention to prosecute German war criminals, thereby
setting the stage for the adoption of the Charter of the International
Military Tribunal at Nuremberg.86 Following Germany's uncondi
tional surrender on May 8, 1945,87 on June 26, 1945, the
International Conference on Military Trials was convened at London
to determine how such a trial could be accomplished.
As one of the major allied powers, France took an active part in
drafting the "Agreement for the Prosecution and Punishment of Ma
jor War Criminals of the European Axis," (the "London Accord") and
the Charter of the International Military Tribunal (IMT Charter) an
nexed thereto.88 The French, advised by distinguished professors
Andre Gros and Rene Cassin, pointed to many of the legal difficulties
involved in attempting to try the Germans for crimes committed
83. Michael E. Tigar et al., Paul Touvier and the Crime Against Humanity, 30
Tex. 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, Legal
Rhetoric under Stress: The Example of Vichy, 12 Cardozo L. Rev. 1371, 1375-77
(1991).
85. Reprinted in Roger Clark, Crimes Against Humanity, in The Nuremberg
Trial 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 same
effect one year earlier. Note, Pour le Comite Frangais de la Liberation Nationale, Au
gust 18, 1943.
87. William L. Shirer, The Rise and Fall of the Third Reich: A History of
Nazi 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 legal
foundations of Article 6(c), see M. Cherif Bassiouni, Crimes Against Humanity in
International Law 1, 562 (2d ed., 1999) [hereinafter Bassiouni, Crimes Against
Humanity] .
abroad, in particular the absence of an international criminal code.89
Nonetheless, records of the French negotiators and advisors of the
time suggest that the French government was largely favorable to
the establishment of an international tribunal, and the trial of Ger
man war criminals before it.90 As Rene Cassin wrote at the time,
The French National Liberation Committee . . . must, as the
representative of the oppressed French nation, solemnly af
firm its determination to punish effectively and by way of
example?and to the extent possible?to prevent war crimes
of which France, French citizens and her subjects or those
under her protection, and more generally innocent human
beings 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 project
almost failed due to the difficulties Robert Jackson, America's lead
negotiator, experienced with the Russian and French delegations,
both of which, according to Taylor, were apparently doubtful about
the legitimacy of an "aggressive war" charge,92 and who hailed from
criminal justice systems that varied greatly from the procedures
Jackson and his British counterparts were accustomed to.93
France also participated in prosecuting the major war criminals
at Nuremberg,94 and by agreement, had principal responsibility for
presenting the evidence concerning war crimes and crimes against
humanity allegedly committed by the defendants in the countries of
Western Europe. With respect to crimes against humanity, Article 6
89. Two Memoranda (Notes) dated October 7, 1943, and March 21, 1943, prepared
in London by Professor Andre Gros, to The French Ambassador, Concerning the
Question of War Crimes and Practical Solutions to their Punishment; Punishment
and Prevention of Enemy War Crimes, Second Report by Professor Rene Cassin,
Delegue de la France a la Commission d'Enquete des Nations Unies sur les Crimes de
Guerre, 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 comedie qui a rendu
vaines les dispositions du traite 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.
Ecer argued that the waging of an aggressive war should be considered as crimes
being within the scope of the UN War Crimes Commission, citing an earlier memo
randum by the French members of Commission II of the London International
Assembly, that had been presented to the Commission in 1942 and took the view that
the war was a crime in the legal sense of the word. Minority Report by Dr. B.Ecer.
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 the
international 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. See
generally Donnedieu de Vabres, Le Proces de Nuremberg, Cours de Doctorat
(Montchrestien 1946).
of the Nuremberg Charter provided that the International Military

Tribunal had the power to try and punish persons who, acting in the
interests of the European Axis countries, committed crimes against
humanity:
(c) [N]amely, murder, extermination, enslavement, deporta
tion, and other inhumane acts committed against any
civilian population, before or during the war, or persecutions
on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tri
bunal whether or not in violation of the domestic law of the
country where perpetrated.95
Relying upon this provision in his opening address, French Chief
Prosecutor Francois de Menthon96 argued that crimes against hu
manity were "crimes against the spirit," and opened the French case
with a dramatic appeal to the tribunal:
France, which was systematically plundered and ruined;
France, so many of whose sons were tortured and murdered
in the jails of the Gestapo or in concentration camps; France
... asks of you, above all in the name of the heroic martyrs of
the 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 champion
of human liberty, of human values, of human progress,
through my voice today becomes also the interpreter of the
martyred peoples of Western Europe, Norway, Denmark, the
Netherlands, Belgium, Luxembourg, peoples more than all
others 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 that
justice be done. The tortured people's craving for justice is
the basic foundation of France's appearance before your
High Tribunal.... More than toward the past, our eyes are
turned toward the future.97
The French prosecution often suffered from a lack of resources

(France was still recovering from the occupation), and according to
former Nuremberg Prosecutor Drexel Sprecher, the French
prosecutorial team had some difficulty adapting to the adversarial
procedures of the trial.98 Nonetheless, the French contribution was
an 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.
2010] the nuremberg paradox 173
tation of the crimes against humanity charges. The trial opened on
November 20, 1945, and ended on October 1, 1946. The judgment,
while disappointing some who thought that the Tribunal should have
elaborated broader, more universal principles than it did, nonethe
less came to stand, broadly, for the idea that grave and massive
violations of human rights are the concern of the international com
munity, not just of nation states, and that aggressive war, which the
tribunal 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 in
a rudimentary form of what we would now call "transitional justice."
This period was marked by violent purges of French collaborators
(I'epuration), including summary executions of as many as 10,000 (or
more) French men and women, and trials of both French collabora
tors and German agents captured in France.100 Frenchmen were
punished for "collaboration" or treason.101 Non-Frenchmen were pun
ished for war crimes.102 Both were tried under French laws that
either implemented the laws of war or specifically sanctioned the
crime of collaboration. None of the accused, however, was punished
by a French court for something called a "crime against human
ity."103 Indeed, most probably, "crimes against humanity" did not
exist in French law prior to 1964.104
After the initial spate of prosecutions and the purge, amnesty
laws were adopted that prevented the punishment of individuals for
crimes committed during the occupation period, thereby attempting
to bring "closure" to the tragedy of Vichy. Nevertheless, in France the
Nuremberg trials were, though finished, not forgotten. Donnedieu de
Vabres 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 others
have 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, La
repression des crimes de guerre devant les tribunaux francais et allies, 39 (1956)
(These No. 517, Universite de Geneve, Faculte de Droit); Herbert R. Lottman, The
Purge 22 (1986).
101. Eugene Aroneanu, Le Crime Contre L'Humanite 225 (1961).
102. See Sadat, supra note 37, at 317-18.
103. See Georges Levasseur, Les crimes contre Vhumanite et le probleme de leur
prescription, 93 J.D.I. 259, 263-64 (1966).
104. See Claude Lombois, Un crime international en droit positif francais, in Droit
Penal Contemporain Melanges en l'Honneur d'Andre Vitu 367, 373 (1989).
105. See, e.g., Henri Donnedieu de Vabres, Traite de Droit Criminel et de Leg
islation Penale Comparee (1947); Henri Donnedieu de Vabres, Les Pricipaux
Aspects de la Politique Criminelle Moderne (1960); Henri Donnedieu de Vabres,
participated, along with other members of the new United Nations

including 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, Eleanor
Roosevelt and Rene Cassin, were American and French, respec
tively.106 France was one of the initial six members of the common
market, joining Euratom, the Coal and Steel Community, and the
European Economic Community (as it was then called) in the
1950s,107 and signing on to the European Convention on Human
Rights on November 4, 1950.108 This required French lawyers and
judges, slowly at first, and increasingly with the passage of time, to
think about, use, and rely upon international (and European) law on
a regular basis, establishing its application in the French courts to an
extraordinary degree.
On the other side of the Atlantic, the legal picture could not be
more different. Other than the writings of former Nuremberg prose
cutors, many of which did not appear until considerably after the end
of the war,109 and which were written against a background of tre
mendous skepticism, the Nuremberg trials seem to have had little
impact upon American law and U.S. policy immediately following the
war. Historian Elizabeth Borgwardt refers to the Nuremberg Charter
as an example of the "multi-lateralist sensibility that briefly gripped
the United States" at the end of World War II, but also notes that
there were probably more critics than enthusiasts of the trials.110
America's lackluster support for the Nuremberg legacy can be seen in
its reluctance to ratify international criminal law conventions as
well. Whereas France ratified the 1948 genocide convention on Octo
ber 14, 1950, the United States took forty years to do so, ratifying it
only on November 25, 1988.111 Of course, the United States was pre
occupied with the Cold War?the threat of communism and nuclear
Le Proces de Nuremberg Devant les Principles Modernes du Droit Penal 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 in
this 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 note
96; 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.org/Pages/ViewDetails.
aspx?src=UNTSONLINE&Tabid=2&id=318&chapter=4&lang=en#Participants.
annihilation were much more present on American minds than the
need to build upon the Nuremberg legacy. Still, the United States did
assume 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 the
Nuremberg legacy. Finally, although emigre scholars like Hans Kel
sen brought to the United States their ideas about restraints upon
the use of force and the superiority of international law, their influ
ence quickly waned with the rise of the legal realist school
championed by Hans Morgenthau,113 and of the policy-oriented ap
proach towards international law emerging at Yale (unsurprisingly
referred to as "the New Haven school"), dominated by Yale professors
Harold Laswell and Myres McDougal.114 In contrast, a "liberal inter
nationalism" was espoused by scholars like Louis Henkin and Oscar
Schachter at Columbia, who argued that international law was not
dependent upon the existence of sanctions to qualify as law, and who
challenged the pre-war positivists and the realists by arguing that
international law was accepted and generally complied with by most
states 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 increasingly
marginal, 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 and
Sick in Armed Forces in the Field, arts. 49, 50, Oct. 21, 1940, 75 U.N.T.S. 31; Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
at Sea, arts. 49, 50, 51, Oct. 21, 1950, 75 U.N.T.S. 135; Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, arts. 146, 147, Oct. 21, 1950, 75
U.N.T.S. 287.
113. Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34
Am. 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 the
Public Interest, 52 Yale L.J. 203 (1943), which provides the beginnings of but still
predates the core of their New Haven School scholarship. See also Myres S. McDougal
& Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public
Order, 53 Am. J. Int'l L. 1 (1959); Myres S. McDougal et al., The World Constitutive
Process of Authoritative Decision, 19 J. Legal Educ. 253 (1967); Myres S. McDougal
et al., Theories About International Law: Prologue to a Configurative Jurisprudence, 8
Va. J. Int'l L. 188 (1968); Hari M. Osofsky, A Law and Geography Perspective on the
New 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 the
international lawyer, see David Kennedy, The Twentieth-Century Discipline of Inter
national Law in the United States, in Looking Back at Law's Century (Austin Sarat
et al. eds., 2002).
war liberalism of the Democratic Party, in Vietnam and

elsewhere.
The central project common to the new mainstream [interna

tional lawyer] is an urgent effort to permit international
lawyers to return to a position of authority within the Ameri
can political establishment they have not had in almost a
century.116
Returning to the situation in France, the country had suffered
terribly during the German occupation and had its own complicity to
reckon 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 by
rumors that Hitler was still alive and by concern that he and other
Nazis 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 a
twenty-year statute of limitations for murder, and ten- and fifteen
year prescriptive periods for lesser crimes.117 Many former Nazis had
not yet been tried in Germany, and similar prescriptive periods ex
isted in other countries where war criminals were thought to be
hiding. The Nuremberg Charter was silent on the question of a stat
ute of limitations118 and all the laws adopted by the Allies followed
suit, with the exception of article Article II, para. 5 of Control Council
Law No. 10, which provide that persons accused of one of the crimes
therein could not benefit from "any statute of limitation in respect of
the 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). The
prescriptive period originally was set to begin on May 8, 1945, the day that Germany
unconditionally surrendered. The Bundestag extended it to December 31, 1969, by
restarting 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 the
Moscow Declaration . . . and the London Agreement of August 8, 1945 ... in order to
establish a uniform legal basis in Germany for the prosecution of war criminals and
other similar offenders, other than those dealt with by the International Military
Tribunals." Official Gazette of the Control Council for Germany, no. 3, 22; Journal
Officiel du Commandement en Chef Francais en Allemagne, no. 12 of 11 January
1946. Allied Control Council Law No. 10 is reprinted in Bassiouni, Crimes Against
Humanity, supra note 88, at 592. See also Jacques-Bernard Herzog, fctude des lois
concernant la prescription des crimes contre Vhumanite, 1965 Revue de Science
Criminelle et de Droit Penal Compare [Rev. Sci. Crim. & Dr. Pen.] 337, 338.
Law No. 64-1326 declaring the imprescriptibility of crimes
against humanity."Sole article. Crimes against humanity, as
defined 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 Tribunal
of August 8, 1945, are imprescriptible by their nature."120
By this law, the French legislature apparently intended both for
crimes against humanity (as defined in the IMT Charter) to become
an indictable offense under French municipal law and to abolish the
defense of prescription.121 Note that this provision merely incorpo
rates the Nuremberg Charter by reference?it would seemingly be
unthinkable for an American prosecutor to bring an indictment
under a similar provision in U.S. law today, although there is prece
dent in early American cases for using international law to complete
laconic Congressional statutes.122 However, Article 55 of the French
Constitution of 1958 provides:
Treaties or agreements duly ratified or approved shall, upon
their publication, have an authority superior to that of laws,
subject, for each agreement or treaty, to its application by
the other party.123
While it was not always clear that this provision implied the su
periority of international law in all cases,124 as the Court of
Cassation 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 Republique Francaise [J.O.] Dec. 29, 1964. This law was
adopted 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 the
objections of those who felt that eliminating the prescriptive period for one category of
crimes 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 not
apply, for evidence had become more?not less?abundant in the twenty years since
the liberation, and the crimes committed were of a particularly serious nature, not to
be pardoned or forgotten?"le temps n'a pas de prise sur euxP See Sadat, supra note
37, at 320-21.
121. Extinctive criminal prescription bars the prosecution of a defendant by the
State (faction publique) or the imposition of the punishment (la peine), if either has
not been brought or carried out prior to a certain, statutorily-established, period of
time. 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.
our country, an authority superior to that of the law."125 Confirming

this jurisprudence in the Barbie case,126 the French courts held that
the London Charter and Accord were part of French law, and indeed
had an authority "superior to [domestic law] by virtue of Article 55 of
the Constitution," requiring their direct application by the French
courts.127 This allowed them to elaborate upon and define the scope
and application of the 1964 law as well as to determine the meaning
of Article 6(c) within the context of the three French prosecutions
brought 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 1964
law. Although a relatively minor figure in the Vichy hierarchy,
Touvier used his position as Lyon's head of information services in
the Milice128 to harm opponents of the Vichy regime, particularly
Jews.129 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 Lyon130 accusing Touvier of directing a grenade attack against
the Synagogue at Quai Tilsitt, Lyon, during World War II.131 Shortly
thereafter, 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, Jurisprudence
1, 1976 Gazette du Palais [Gaz. Pal.] Nos. 322, 323, at 699, 1976 J.C.P. II G, No.
18,435 [hereinafter Touvier 27] [D.S. Jur.] (unless otherwise specified, all cites to the
Touvier II decision are to the version published in the J.C.P.).
126. The Touvier and Barbie prosecutions are discussed in detail in Sadat, supra
note 37. Touvier's trial is the focus of another work, Leila Sadat Wexler, Reflections on
the 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 Crimes
Against 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 Vhumanite,
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) [hereinafter
Barbie I\. See also George Desous, Reflexions sur le regime juridique des crimes contre
Vhumanite, 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 Az?ma, 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 Rillieux, 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 recognized
Touvier as an organizer of the Synagogue bombing that she had survived. Touvier II,
supra note 125.
by the Milice, at Rillieux-la-Pape.132 Both individuals brought the ac
tion as civil parties. Around the same time, other individuals filed
charges against Touvier with the prosecutor's office at Chambery.133
They alleged that Touvier had tortured Robert Nant, a leader of the
Resistance, 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 French
judicial system.135 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 committed
prior to its passage;137 whether it could apply to Frenchmen (as Arti
cle 6 of the IMT charter referred only to "Axis" war criminals); and
whether the acts alleged were crimes against humanity within the
meaning of the IMT charter. The Criminal Chamber of the Court of
Cassation never reached the issues presented, however. Instead, the
Court referred the case to the Minister of Foreign Affairs for a minis
terial interpretative response on the application of the treaties to
Touvier's case.138
On July 15, 1979, the Minister of Foreign Affairs rendered the
long-awaited interpretation of the Nuremberg Charter in the Touvier
case, 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, at
292-93. 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 chambre
d'accusation, at 133-62, reprinted in part in 1992 Gaz. Pal. 387, 387-417 [hereinafter
Touvier III]. Subsequent citations are to the entire unpublished decision as filed with
the 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 otherwise
noted).
137. This question posed a significant hurdle for the Court due to the insistence of
French law on the non-retroactivity of penal laws.
138. Touvier II, supra note 125. For commentary on this opinion, see Sadat, supra
note 37, at 330-31. The French Court of Cassation has traditionally limited the power
of the courts within its jurisdiction to interpret treaties, preoccupied with the possibil
ity that judicial interpretation could disturb the smooth functioning of French
diplomacy or cause the French State to be liable. The responses of the Minister of July
15 (Touvier) and July 19 (Leguay), 1979, were very long in coming. When they finally
appeared, 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 Ruzie),
J.D.I. 308 (1984) [hereinafter Barbie 77] (unless otherwise specified, all cites to the
Barbie II decision are to the version published in the J.C.P.).
crimes against humanity that one may derive from the IMT Charter
is the principle of imprescriptibility."139 This decision allowed both
the 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 Barbie
than Paul Touvier, of course. Barbie was a German national who was
known as "the butcher of Lyon" for his role in destroying the French
Resistance that had come to use Lyon as a base of operations during
Lyon's time as part of Free France.140 Freed of many of the difficul
ties that had troubled the Touvier prosecution, including the still
unanswered question whether Frenchmen and not just Germans
could be prosecuted under the 1964 law, and armed with the response
of the Ministry of Foreign Affairs as to the problem of prescription,
the Court of Cassation had no trouble this time in addressing the
thornier issues of what constitutes a crime against humanity in
French (international) criminal law. This the Court did through a se
ries of opinions that I have addressed extensively in other
writings.141 There are, however two particularly significant decisions
that are worth noting here.
First, in an opinion rendered on January 26, 1984, the Court of
Cassation rejected the argument that the crimes had prescribed.142
Following the interpretation of the Ministry of Foreign Affairs,143 the
Court held that Barbie, charged with crimes against humanity, could
139. Id. 1 27 (Report of Counselor Le Gunehec). In fact, this issue was arguably
already decided by implication in the Judgment of Feb. 6, 1975. Note M.R.
Uimprescriptibilite des crimes contre Vhumanite, 1976 G.P. II G, at 699. Note M.R.
Uimprescriptibilite des crimes contre Vhumanite, 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 Barbie
I\. 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 Cassation
are the Judgment of Oct. 6, 1983 [Barbie I, supra note 127], 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 Counselor
Angevin) [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 discussed
here.
142. The problem of retroactivity was still being debated by commentators at this
time. See, e.g., R. de Geouffre de la Pradelle, Uaffaire Barbie et la competence des
juridictions nationales, G.P. Doctrine 131 (1983, ler) (essay); Joe Nordmann,
Uimprescriptibilite des crimes contre Vhumanite, G.P. Doctrine 163 (Apr. 23, 1983)
(responding to de la Pradelle); and David Ruzie, Uimprescriptibilite en France des
crimes contre Vhumanite: un faux probleme a propos de Vaffaire 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 to
particular facts. Id. (Note Ruzie).
not benefit from the prescription of the public action,144 no matter
when the crimes had been committed.145 According to the Rapporteur
for the case (Christian Le Gunehec), this required the Court to accept
the role that the legislature had apparently ordained for it?to sit as
an "international tribunal" and to apply the Nuremberg Charter as a
matter of French international criminal law.146 Thus, almost twenty
years after the adoption of the 1964 law, and more than ten years
subsequent to the filing of the complaints in the Touvier case, the
Court of Cassation finally ruled that the 1964 law meant what it said:
crimes against humanity could be prosecuted in France whatever the
date and place of their commission.147
Second, the Court interpreted Article 6(c) in order to permit
Barbie's trial in France, while at the same time limiting the Nurem
berg Charter's application to any crimes outside the World War II
context. Expanding upon the Statute's application, the Court held
that members of the Resistance could be considered "civilians" for the
purposes of applying provisions regarding crimes against humanity,
even though the members of the French Resistance had taken up
arms against the Germans.148 However, the Court restricted the ap
plication of Article 6 (c) by requiring that the perpetrator have an
additional 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 cannot
ever, as a matter of law, commit a crime against humanity. The
Court of Cassation thus shielded France (and any other democratic
state) from criminal liability.149 This was not required by either the
Nuremberg Charter or by the Judgment of the IMT; rather, it was an
effort by French judges to cabin the application of the 1964 law so
that it applied only to individuals accused of committing crimes
under German influence or direction during the Second World War.
It was vigorously critiqued as explicitly shielding the Fifth Republic
from allegations of war crimes or crimes against humanity committed
in Indochina or Algeria.150 Nonetheless, after a sensational trial that
was widely covered by both the French and international press,
Barbie was convicted on July 4,1987, of crimes against humanity and
sentenced to life imprisonment. He died of leukemia, in prison, on
September 25, 1991.151
144. Barbie II, supra note 138.

145. Id.
146. Or, as the French would say, "le droit international penal." 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. Martic, 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.
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 five
of the eleven charges then lodged against him, including the massa
cre at Rillieux-la-Pape.153 On review, in an astounding 215-page
decision,154 the Indicting Chamber of the Paris Court of Appeals
threw out the case, finding that the evidence with respect to ten of
the eleven counts was insufficient to proceed against Touvier. With
respect to the one crime for which Touvier's involvement was undeni
able (the massacre at Rillieux), the Appeals Chamber found that the
prosecution had not proven that the accused had intended to system
atically commit inhumane acts and illegal persecutions in the name
of a State practicing a hegemonic political ideology,155 because Vichy
France, unlike Nazi Germany, was not a hegemonic state.156 The
court also found that Touvier could not be guilty as an accomplice of
the Gestapo, finding that Touvier was not carrying out any German
plan at Rillieux?it was entirely aune affaire entre Frangais" (a
French affair).157
The decision of the Paris court provoked a public outcry and was
widely criticized.158 The historical record showed that the Milice
targeted Jews for abuse,159 and Touvier himself admitted that the
152. Touvier III, supra note 132, at 20; see also Nouvelle plainte a Lyon contre
Vancien milicien Paul Touvier, Le Monde, Mar. 21, 1983.
153. The charges are discussed in detail in Sadat, supra note 37, at 347-48 and
notes cited.
154. French court decisions are generally noted for their cryptic brevity, making
the 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 the
French courts intended by the use of this term. For an analysis of the decisions in the
Barbie 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 of
Marechal 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 Frangais sont "choques"par le non-lieu, Le Monde,
April 17, 1992. A document entitled "nous accusons" (after Zola's J'accuse) was signed
and published by 188 famous personalities accusing the three appeals judges of a
miscarriage of justice. Apres le non-lieu accorde a Touvier, Nous Accusons,
L'Evenement du Jeudi, May 7-13, 1992, at 22. Conan & Lindenberg speak of the
general "stupefication" of the public in reading the decision, firic Conan & Daniel
Lindenberg, Que Faire de Vichy? in Espirit, May 1992, at 6. See also Theo Klein,
Oublier Vichy? A Propos de L'Arret Touvier (1992). The French National Assem
bly denounced the verdict. Pascale Robert-Diard, Le Parti de Vindignation, Le Monde
April 16, 1992, at 8. See also Michel Masse\ L'affaire Touvier: Uechappee belle, Rev.
Sci. Crim. 372 (1993).
159. See Marrus & Paxton, supra note 84, at 3-5, 12 (Vichy passed laws on the
Jews ("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.
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 the
Paris Court of Appeals, in part,160 and found that because the crimi
nal acts committed at Rillieux had been accomplished at the
instigation of the Gestapo, Touvier could be convicted under Article 6
of the Nuremberg Charter, as he had acted "in the interests of the
European Axis countries.161 Thus the Court was able to avoid holding
that the 1964 law was only applicable to Germans, without simulta
neously calling into question the Vichy regime and its responsibility
for crimes committed during the war. The case was remanded,
Touvier was indicted for the massacre at Rillieux,162 and on April 20,
1994, after a sensational, month-long trial, Touvier was convicted of
"complicity to commit crimes against humanity."163
The Prosecution of Maurice Papon
If Touvier's case tested the capacity of the French courts to apply

the Nuremberg principles to their own citizens, the Papon case
proved even more difficult. On October 20, 1942, four armed law en
forcement officers, two French and two Germans, had arrived at the
home of the Slitinsky family in Bordeaux, France. They had come to
arrest the Slitinskys as part of a larger operation in which the Jews
of 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 filed
with 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 chambre
d'accusation 31 [hereinafter Touvier V\. For an analysis of the June 2 indictment, see
Sadat, supra note 37, at 351-53. Interestingly, the court referred to "governmental or
state policy of exterminations and persecution" (emphasis added). Query whether this
choice 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 an
accomplice of the Gestapo, it did not address the question whether the Milice and the
Vichy Government could also be so considered. Touvier V, at 34.
163. See Sadat, Reflections, supra note 126, for a description and analysis of
Touvier's trial. See also Eric Conan & Henry Rousso, Vichy, un Pass? Qui ne Passe
pas 109-72 (1994); Alain Jakubowicz & Ren? Raffin, Touvier Historie du proc?s
(1995); Arno Klarsfeld, Touvier, un crime francais (1994); Jacques Tr?molet de
VlLLERS, L'AFFAIRE TOUVIER, CHRONIQUE d'UN PROCES EN IDEOLOGIE (1994). Touvier
appealed his conviction and lost. Judgment of June 1, 1995, Cass. crim.
164. Ultimately, the Jews of Bordeaux captured by French or German authorities
would, for the most part, be sent by train from the Merignac prison camp in the south
of France to a larger prison camp Drancy, in the north, and finally to Auschwitz
where they would be exterminated.
They were arrested and Abraham was sent to Auschwitz where he

died.165
Nearly forty years later, archives were discovered that revealed
the role of Maurice Papon, a high ranking civil servant who was the
General Secretary for the Gironde Prefect, in the arrest of the Slitin
skys. Indeed, the twenty-six volumes of evidence collected by the
investigating judges implicated Papon in the deportation of almost
1,600 Jews from Bordeaux. Although not a policy-maker himself,
Papon was apparently a highly efficient bureaucrat with authority
over "Jewish questions" in the Gironde. He supervised the compila
tion and maintenance of lists of Jews (which were periodically
forwarded 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 that
he had committed a crime against humanity under the 1964 law. Af
ter the tortured road traveled by the Barbie and Touvier cases, many
feared that the Papon case would never be heard. Although the docu
mentary evidence against him was damning, as a white collar
defendant Papon's case seemed more difficult than Touvier's both
from a legal (given the earlier case law) and a political perspective.166
For one thing, after the war Papon's public image was (unlike
Touvier's) completely rehabilitated. Indeed, while Touvier went into
hiding, Papon's career flourished. Called by de Gaulle to public ser
vice based on his resistance credentials (the bona fides of which were
hotly contested during his trial), he rose through the civil service
ranks 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 of
Raymond Barre in 1978. For another, Papon does not, unlike
165. Information regarding the Slitinsky case as well as the other cases involved in
the 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 also
Michel Slitinsky, L'affaire Papon (1989).
166. It is worth noting that former French President Francois Mitterrand recently
admitted that he had asked the French government to delay pursuit of several other
suspected World War II collaborators, in particular Ren6 Bousquet and Maurice
Papon, 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 he
could be indicted, and a preliminary indictment was issued in Dec. 1995, thirteen
years after the investigations began, into the wartime activities of Maurice Papon.
Papon was finally indicted in September of 1996, and his indictment confirmed on
Jan. 23, 1997. Judgment of Sept. 18, 1996, Chambre d'Accusation de la Cour d'Appel
de Bordeaux (unpublished) [hereinafter Papon 7], affirmed Judgment of Jan. 23,1997,
Cass, crim., 1997 Juris-Classeur Periodique [J.C.P.] II G, No. 22812 note Robert
[hereinafter Papon II]. On the Papon affair, see generally Laurent Greilsamer, Mau
rice Papon, la vie masquee, Le Monde, Dec. 19, 1995. In a moving speech
commemorating the roundup at the velodrome d'hiver, in 1995 President Jacques
Chirac admitted France's responsibility for the abuses that occurred during the Vichy
regime. Une dette imprescriptible, Le Monde, July 18, 1995, at 6.
Touvier, appear to have been explicitly anti-semitic; rather, the anti
semitism of Papon was manifested by his apparent indifference to the
fate of those whose deportation orders he signed.
In a 170-page decision {arret de renvoi)161 confirmed by the Court
of Cassation on January 23, 1997,168 the Indicting Chamber of the
Bordeaux Court of Appeals indicted Papon for complicity in crimes
against humanity. Remarkably, the opinion condemned not just
Papon, but the entire bureaucratic apparatus used in the "adminis
trative massacre"169 of the Jews of France. The opinion is also
interesting 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 know
what would happen to the deportees. The court forcefully rejected
this argument. According to the court's opinion, "everyone knew"
what was happening (and particularly someone as well-educated and
well-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 had
sought refuge in France. Reviewing the available evidence, the court
ultimately concluded that:
Maurice Papon . . . had, even prior to taking office, a
clear, reasoned, detailed, and continuous knowledge of the
Nazi's plans to murder these people, constituting premedita
tion, even if he may have been ignorant of the exact
conditions of their last sufferings and the technical means
whereby they were killed.170
The indicting chamber also rejected any defense of duress, finding
that the pressures brought to bear upon civil servants were not of an
intensity that would have negated Papon's free will. The defense's
reliance on claims of superior orders and subordinate responsibility
were equally unfruitful. As the court notes, the orders given were
manifestly illegal.171 Indeed, the court suggested more than once that
the appropriate response of Papon to Nazi (or Vichy) pressure should
have been to resign.
The trial of Maurice Papon defeated all expectations. After the
arret de renvoi, the trial's outcome seemed like a foregone conclusion:
167. The arret de renvoi is the functional equivalent of an indictment in a common

law system, and is also known by the term "acte a"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 as
possible the orders of the German occupants, did not exonerate Papon, for this "ordre
de mobilisation" could not serve to justify operations resulting in deportations. The
Court of Cassation confirmed this holding in its opinion of January 23, 1997. See Leila
Nadya Sadat, The Legal Legacy of Maurice Papon, in The Papon Affair (Richard J.
Golsan ed., 2000).
it would have, to be life imprisonment. That was the sentence Paul

Touvier received for ordering the murder of seven men at Rillieux;
surely the deportation and ultimate death of more than one thousand
souls 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. In
contrast, the lawyers for the civil parties were often in disarray.
Papon requested, and received, his liberty for the duration of the
trial.172 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 the
Prosecutor.174 On April 2, 1998, after nineteen hours of deliberation,
the jury rendered its verdict: ten years imprisonment.175 Conviction
on 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 to
the 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 of
which he had knowledge. In other words, the judgment was a
compromise.176
In September 2002, after he requested and was denied a Presi
dential pardon,177 Papon was released from prison on medical
grounds, just three years into his ten-year sentence.178 Although the
ruling by the appeals court ordering Papon's release did not reverse
his conviction, it came as a shock to some of the victims and their
families: "It was like a second death for our dead," said Juliette
172. Pascale Nivelle, Papon ouvre son proces en demandant la liberte, Liberation,
Oct. 9, 1997 (last visited May 21, 1998), <http://www.liberation.com/papon/
proces 1009.html>; Jean Michel Dumay, U etat de sante de Maurice Papon pesera sur
la suite du proces, Le Monde, Oct. 11, 1997; Eric Conan, Le Proces Papon, Un Jour
nal d'Audience, 12-21 (1998).
173. Conan, supra note 158, at 317-20.
174. Jean-Michel Dumay, Vingt ans de reclusion criminelle sont requis contre Mau
rice Papon, Le Monde, Mar. 21, 1998; Pascale Nivelle, Tout ga pour announcer vingt
ans . . . 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 at
the end of the verdict. Jean-Michel Dumay, Pourquoi moi? D'un coupable designe,
deviendrais-je un symbole necessaire?, Le Monde, April 3, 1998, at 7.
177. Emmanuelle Reju, Jacques Chirac refuse la grace de Maurice Papon, La
Croix, Oct. 8, 2001.
178. An appeals court freed Papon, then ninety-two years old, in consideration of
Papon's advanced age and ill-health, basing its decision on a March 2002 law allowing
for the early release of sick and aged prisoners. Elaine Ganley, Vichy-Era Convict is
Freed, and French Complicity Revisited, St. Louis Post-Dispatch, Sept. 29, 2002, at
A15.
Benzazon, who lost fourteen relatives (including her parents), som
of whom were shipped to extermination camps on orders signed b
Papon.179 On June 11, 2004, more than six years after the origina
verdict, the Court of Cassation rejected a final appeal by Papon. In its
decision, the Court of Cassation ruled that a retrial was not war
ranted, ending the last appeal that Papon had in the case.180 Papo
died on February 17, 2007, his death as controversial as his life ha
been.181 In the words of Dominque Moisi, commenting upon Papon
death in the International Herald Tribune, Papon, was the "ant
Schindler," Vichy's faithful servant, who was "judged and condemned
by the court of history and the court of men."182
IV. A New Era of Accountability

A. Crimes Against Humanity and Genocide in the Courts after
1992
The French experience following World War II suggests the diffi
culties faced by municipal courts in applying international law as
matter of course. Both national politics and inexperience get in th
way. Indeed, it is particularly difficult for national courts to punis
wrongdoers from their own government for war time atrocities and
politics was evident in the decisions involving Touvier, Papon, and
Barbie. At the same time, the French courts established a sophisti
cated and well-developed jurisprudence in this difficult area of th
law. The convictions of Touvier and Papon were deeply significant to
French society, both to the victims of their crimes and as symbols of
hope to victims of such crimes elsewhere. As Henri Glaeser, the son o
one of Touvier's victims, stated to the jury during Touvier's trial:
Remember the last photograph [of my father], taken at
Rillieux, his mouth wide open .... For years and years, I
had the impression that someone wanted to pour concrete in
there, to stop him from speaking, to stop me as well. Now I
am 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, ktes-vous toujours pour la liberation
de 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 ruled
in favor of Papon on certain procedural points, but did not ultimately affect the
outcome.
181. Papon was stripped of his decorations as a result of his conviction, including
the Legion d'Honneur. He remained ever-defiant, however, and was fined in 2004 for
wearing it during an interview with Le Point. His lawyers argued that he was entitled
to 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.
speak, anything can be said, even by the accused. My father

was not judged by anyone. He was arrested, thrown five
hours later against a wall, and assassinated.183
Moving beyond the atrocities of World War II, France faced addi
tional legal and political questions and issues as it began to address
international crimes in a broader, global context. If the immediate
post-World War II cases were uniquely French both in jurispruden
tial style and impact, the cases decided in the 1990s under more
recent French legislation have been occurring elsewhere as well, as
many countries have been domesticating international criminal law
(such as the Pinochet litigation in England and Spain). Moreover, the
establishment of two functioning international criminal tribunals in
the mid 1990s, the ICTY and the ICTR, situated the French courts
within a global system of international justice containing both na
tional and international components. These more recent cases
indicate the important role France has increasingly accepted in en
forcing international criminal law. Yet, there is no doubt that politics
has played a role in edging out law on more than one occasion, partic
ularly as regards the increasingly contentious issue of French
liability for acts in the Algerian war, and the realpolitik of French
diplomacy, whereby individuals accused of war crimes, torture, and
crimes against humanity have been shielded by the French govern
ment from prosecution before French courts.184
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 or
some other feature, may be the victims of a crime against humanity,
codifying the Court of Cassation's jurisprudence in the Barbie
case.186
183. Laurent Greilsamer, Le proces de Paul Touvier devant la cour d'assises des
Yvelines: "mon pere, lui, on ne Va pas juge . . 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 his
role 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, ff 53-54; Desportes & Le
Gunehec, Presentation des dispositions du nouveau Code Penal, 1992 J.C.P. I G, No. 3,
615 n.102. The new law took effect on Mar. 1, 1994 and applies to crimes committed
after 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 against
humanity, however, under the new law. Elisabeth Zoller, La definition des crimes
contre Vhumanite, 1993 J.D.I. 549, 567.
The French Prosecution of International Crimes in Recent Years
Following the adoption of the 1992 law, several interesting cases

brought before French courts have demonstrated the challenges fac
ing the exercise of universal jurisdiction over international crimes by
French courts. In particular, limitations regarding the presence of
the accused on French territory as well as the recognition of immuni
ties granted by international law reflect France's seeming reluctance
to extend its judicial control in such cases despite its desire to prose
cute grave human rights abuses and violations of international
humanitarian law.187
There is now a rich jurisprudence in this area which cannot be
explored in the short space of this Article. Instead, I will examine
only the cases that have shaped the French approach to the exercise
of universal jurisdiction over war criminals. In the Javor case, Bos
nian citizens who were refugees residing in France filed a complaint
against non-disclosed parties for crimes of torture, genocide, and
crimes against humanity.188 The plaintiffs claimed to be victims of
crimes committed by Serb forces as part of the policy of ethnic cleans
ing taking place in the town of Kozarac and surrounding villages as
well as in the detention camps of Omarska, Trnopolje, and Ker
aterm.189 At the time of the complaint, there was no indication that
the alleged perpetrators of these acts were present in France. None
theless, the investigating magistrate (Judge Getti), ruled that there
was jurisdiction over the case under the Torture Convention and the
Geneva Conventions of 1949 for war crimes.190 (Recall that Judge
Getti was also responsible for bringing the original indictment
against Paul Touvier in 1991.) Judge Getti essentially interpreted
the scope of judicial powers implied by universal jurisdiction broadly
187. Article 689 provides that "the authors or accomplices of offenses committed
outside the territory of the Republic can be sued in the French courts and be judged
by them . . . whenever an international convention grants jurisdiction to the French
courts." [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_lll.html (last visited Nov. 26, 2007).
189. Rafaelle Maison, Les premiers cas d'application des dispositions penales des
Conventions de Geneve 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 under
French 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 of
the Javor case, see also Jean-Francois Roulot, La repression des crimes contre
Vhumanite par les juridictions criminelles en France: une repression nationale d'un
crime international, 3 Rev. sc. Crim. 545, 560-61 (1999).
so as to permit preliminary acts of inquiry191 even without prior con

firmation of the presence of the accused on French territory.192
In two decisions vociferously criticized by human rights groups
and some scholars, both the Court of Appeals and later the Court of
Casssation rejected this interpretation in favor of a narrower con
struction of French judicial power.193 Both higher courts held that
under Articles 689-1 and 689-2 of the French code of criminal proce
dure, French jurisdiction could not attach without the presence of the
alleged perpetrators on French territory when the case is filed.194 Be
cause there was no evidence that the alleged perpetrators had been
present on French territory at the outset of the case,195 both the
Court of Appeals and the Court of Cassation held that the case could
not be heard.196
In contrast to Javor, French courts upheld the exercise of univer
sal jurisdiction in the case against Wenceslas Munyeshyaka, an
individual accused of crimes committed during the Rwandan geno
cide, because he was found in France when the initial complaint was
filed. The plaintiffs in this case alleged that between April and May
1994, Munyeshyaka, while acting as priest at the church of The Holy
Family in Kigali, contributed to the genocide by the Hutu militias
and members of the Rwandan armed forces against the Tutsi by de
priving Tutsi refugees of food and water, surrendering the refugees to
the Hutu militia, participating in the selection of Tutsi refugees to be
murdered, and coercing women into having sex with him in exchange
for saving their lives.197 On July 25, 1995, an investigation was
opened against Munyeshyaka for genocide, crimes against human
ity.198 The Tribunal held that it had universal jurisdiction under the
Torture Convention,199 but the Court of Appeals of Nimes re
versed.200 The Court of Appeals concluded that jurisdiction must be
established only on the basis of the "highest" (most serious) offense,
191. Preliminary acts including identification of the suspect and determination of

the appropriate charges so that an alleged perpetrators could be arrested if present in
France 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 as
opinions from other jurisdictions) in his important separate opinion in Congo v.
Belgium (Yerodia), arguing that Belgium could not exercise universal jurisdiction "in
absentia" 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 Opinion
of President Guillaume, at paras. 9 & 12).
197. Id. Trial Watch, Wenceslas Munyeshyaka, http://www.trial-ch.org/fr/trial
watch/profile/db/facts/wenceslas_munyeshyaka_l 12.html (last visited Nov. 26, 2007).
198. Id.
199. Stern, supra note 190, at 528.
200. Id.
which in this case was genocide. Because in its view, the French
courts had no universal jurisdiction over the crime of genocide, the
French courts had no jurisdiction to adjudicate regarding events that
had taken place in Rwanda. Two days later on May 22, 1996, a new
law (Law No. 96-432) was adopted to adapt French law to Security
Council Resolution 955 creating the International Criminal Tribunal
for Rwanda. This new law provided for universal jurisdiction over ge
nocide, and jurisdiction over the Munyeshyaka case was affirmed by
the 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 for
Laurent Bucyibaruta,202 who was also residing in France and already
under formal investigation by French authorities for alleged crimes
committed during the Rwandan genocide.203 Indeed, on November
20, 2007, the ICTR referred both cases to French judicial authori
ties.204 On February 20, 2008, the French judiciary accepted the
referral, 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 that206 it prevents
prosecutors or investigating judges even from investigating crimes
abroad 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 commit
genocide, 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 for
Bucyibaruta, 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/profi
html (last visited Feb. 22, 2008); La Federation internationale des ligues des droits de
l'Homme, France should arrest Wenceslas Munyeshyaka, Laurent Bucyibaruta and
Dominique Ntawukuriryayo immediately, June 7, 2007, http://www.fidh.org/article.
php3?id_article=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 its
courts. Id.
203. Trial Watch, Wenceslas Munyeshyaka, http://www.trial-ch.org/en/trial-watch/
profile/db/legal-procedures/wenceslas_munyeshyaka_l 12.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 July
19, 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 Masse,
Ex-Yougoslavie, Rwanda: Une competence 'virtuelle' des juridictions franqaises? Rev.
Sc. Crim 893 (1997).
206. See, e.g., Claude Lombois, De la compassion territoriale, Rev. Sc. Crim. 399
(1995); Brigitte Stern, La competence universelle en France: le cas des crimes commis
en ex-Yougoslavie et au Rwanda, 40 Ger. Y.B. Int'l 280 (1997); Maison, supra note
189.
upon French territory and readily identifiable.207 Yet France is far

from unique in its squeamishness as regards cases of "pure" univer
sal jurisdiction. Note also that under French law, trials in absentia
are possible (raising other concerns), meaning that even if a defen
dant subsequently flees French territory, a criminal action may
proceed in his absence.208
Another limitation placed upon France's exercise of universal ju
risdiction results from France's application of immunity for persons
acting in their official capacity, as illustrated by the Kadhafi affair.
Plaintiffs Beatrice de Boery and a victim's organization known as
S.O.S. Attentats implicated Colonel Muammar Kadhafi in the 1989
attack on a UTA DC 10 aircraft which blew up over the Tenere de
sert, causing the death of 156 passengers and 14 crew members.209 A
formal investigation into the attack began September 23, 1989.210 In
1999, six Libyan citizens211 were convicted and sentenced in absentia
to life imprisonment for their role in the attack.212 The investigating
magistrate ruled that there were sufficient grounds to investigate the
complaint filed against Kadhafi, a ruling that was subsequently af
207. Amnesty International, infra note 208, at 87. According to Professor Brigitte
Stern, the Court of Cassation "could have relied on Article 689 and considered that
the Geneva Conventions are precisely the type of convention referred to by this arti
cle, as they provide directly for universal jurisdiction." Stern, Grave Breaches, supra
note 190, at 529.
208. This occurred in Ould Dah, a case involving an intelligence officer of the
Mauritanian army who had allegedly ordered acts of torture to be carried out against
two black Mauritanian soldiers and participated in these acts. The two victims, who
had since become political refugees in France, filed a complaint against Dah, with the
support of the Federation internationale des droits de l'homme (FIDH) and the Ligue
des droits de l'homme (LDH) and further supported by the Human Rights Association
of Mauritania and the Association of Mauritanian Victims. On July 2, 1999, Dah was
arrested in Montpellier, France while attending a training program at a military
school. 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 Court
of Assizes to be tried despite his physical absence. Dah was tried in absentia, and on
July 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 years
in prison, the maximum term. See Trial Watch, Ely Ould Dah, available at <http://
www.trial-ch.org/fr/trial-wateh^^ See also Am
nesty International, "Investigation of Mauritanian army officer accused of torture?a
step towards truth and justice," AI Index: AFR 38/03/99, 5 July 1999 [hereinafter
Amnesty International, Investigation].
209. Among the victims was Laurence Penon, sister of civil plaintiff Beatrice de
Boery. Cour d'appel Paris, Oct. 20, 2000, available at https://www.asser.nl [hereinaf
ter Kadhafi /].
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, all
four of whom are officers of that service; and Ahmed Abdallah Elazragh, a Foreign
Affairs 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 a
terrorist enterprise." Kadhafi I, supra note 209.
firmed by the Court of Appeals on October 20, 2000,213 referring to
the judgments of other courts in the Pinochet and Noriega cases, in a
striking example of transjudicial dialogue.214 Nonetheless, invoking
head-of-state immunity, the Court of Cassation reversed.215 Follow
ing the Kadhafi affair, France has consistently upheld the principle
of immunity for persons acting in their official capacity who are
charged with serious offenses including torture and crimes against
humanity.216 Yet as noted by the Court of Appeals in Kadhafi, al
though there is a tradition of recognizing such immunities, recent
actions and judgments in the international community suggest that
adherence to diplomatic customs increasingly cannot or will not take
precedence over the prosecution of grave violations of international
law. 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 as
regards immunities.217
B. France's Ratification of the International Criminal Court

Treaty
France was the twelfth State to ratify the Rome Statute of the
International Criminal Court. The negotiation and adoption of the
International Criminal Court treaty was one of the most extraordi
nary juridical events of the twentieth century,218 and has given rise
to both extraordinary optimism and controversy. The establishment
of the Court would not have been possible without a remarkable
change in the political climate and the successful establishment of
the 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 acting
head 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 penal et Vaffaire Kadhafi, D.Jur. 2001, No. 32,
Somm. 2631-3, Jean-Francois Roulot.
216. A complaint was filed against Jean Francois Ndengue, chief of the National
Police 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 because
he held a valid diplomatic passport and was on an official visit to France. In February
2003, a Paris magistrate issued a warrant for the arrest of Zimbabwean President
Robert 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 Human
Rights 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 Dame
L. Rev. 81 (2006).
218. Leila Nadya Sadat, The International Criminal Court and the Transfor
mation of International Law: Justice for the New Millennium (2002).
able to observe and influence the treaty process using instantaneous

electronic communications was no doubt another factor, and many
have pointed to civil society as a key factor in pushing France, as well
as other countries, towards supporting the ICC. Yet in examining
French support for the Court, it is undeniable that decades of intel
lectual preparation and years of experience with prosecutions of
crimes against humanity have influenced the outcome. Although
there was little doubt that France would ratify the Statute, its sup
port for the Court had not been a foregone conclusion during the
Treaty's negotiation. But it is perhaps the reaction to the decision of
the French Constitutional Council (Conseil Constitutionnel) that will
most astonish, especially U.S. observers.
Recall that the Constitutional Council held that the Statute's
ratification 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 26
of the French Constitution. These provisions contain various immuni
ties for the French President, members of Parliament, and other
members of the French Cabinet (gouvernement) from criminal prose
cution, and it set forth specific conditions under which such
prosecutions may be brought (such as restricting them to certain
courts). Additionally, the Council found that because the ICC could
be properly seized of a case in which a domestic amnesty had been
proclaimed by France or in which a French statute of limitations
would have otherwise applied, ratification of the ICC statute would
infringe 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 to
permit ratification of the ICC treaty.220 The Parliamentary debates
concerning both the ratification of the Treaty and the amendment of
France's Constitution evince a certain preoccupation with the ex
traordinary steps required; but they were virtually unanimous and
entirely supportive, even passionate, about the need to put aside nar
row concerns of self-interest and support the International Criminal
Court?in the interest of France, and all humanity. Indeed, French
parliamentarians, meeting in a joint session as a "Congress" adopted
the 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 inserant, au titre VI de la
Constitution, un article 53-2 et relative a la Cour penal internationale. Article 53-2
provides 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."
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, particularly
given the unqualified support of both Ministries of Justice and De
fense.222 When the ratification law reached the floor of the Frenc
Senate, virtually all those who spoke argued passionately for the
Treaty's ratification and of France's pride in being one of the first
countries to ratify the treaty. Senator Andre Dulait, rapporteur for
the Senate Committee on Foreign Affairs, Defense and Armed
Forces, rejecting criticism that the Treaty was flawed (boiteux)223 re
torted that even a lame individual can be moved forward. Like the
constitutional amendment, the adoption of the ratification law wa
effectively 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 as
developing in three stages, each one, perhaps causing it to take a
path distinct from its American cousin. Stage I represents the early
experience with negotiating and participating in the Treaty system
that evolved after the First World War. Not only did France, unlike
the United States, join the League of Nations, but French jurists, and
many Continental Europeans whose work was well known in France,
were advocates of the League and of the establishment of an intern
tional criminal code and court. This established a vibrant epistemi
community whose members wrote about and discussed international
criminal law as an active discipline, and an important component o
world order. Their advocacy did not translate immediately into politi
cal reality, but it nevertheless established deep doctrinal foundations
when 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 to
gauge. 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 Defense to the Ministre des affaires etrangeres, confirming the agreement of th
Minister 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 the
Ministre des affaires etrangeres, confirming the Justice ministries support for the
ratification of the Treaty.
223. Literally "lame," but probably better translated as "flawed" for the time being.
224. Remarks of Senator Andre Dulait French Senate Session of Mar. 22, 2000,
available at http://www.senat.fr/seances/s200003/s20000322/sc20000322004.html.
minded brethren. But it is certain that the Nuremberg trials were

viewed 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 to
domestic law where the two conflict,226 also meant that the London
Accord and Charter had a different significance in French law than
they ever did in the United States, and that the French Parliament
was able to transpose the Nuremberg Charter's crimes against hu
manity provision into French municipal criminal law with relative
ease, leaning both on public international law principles and theories
of droit international prive?that assign formal status to interna
tional law within the French legal system. That is not to say that
French courts do not, "like their American counterparts, struggle
with the appropriate way to give effect to the international legal obli
gations of their nation,"227 for they do. It is also true that ambiguity
in Article 55 of the French Constitution meant that French courts did
not always interpret international treaties as having direct effect in
the French legal system, and the Conseil d'Etat initially took the po
sition that it could not examine an act of Parliament enacted
subsequent 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 courts
have moved increasingly towards effectively incorporating treaties
and international agreements into its domestic legal order, and in
adapting French law to the decisions of international tribunals.228 It
is probably fair to say that during the same time period, the United
States 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 the
superiority of the provisions against crimes against humanity, that
they would prevail over domestic laws to the contrary.)230 Thus it is
perhaps unsurprising that American support for the Nuremberg tri
als did not translate into support for the Nuremberg principles qua
principles 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 Maine
L. 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, which
challenged 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 the
Modern Position, 110 Harv. L. Rev. 816 (1997).
230. See supra note 124 and accompanying text.
and apart from U.S. law, being norms applied to foreigners accused of
grievous injury to the United States and her allies.
But it was not until the second phase?when France actually
used the 1964 law to prosecute not only Nazis left over from the war
but also Frenchmen for crimes committed on French soil?that the
incorporation of the Nuremberg principles "grew legs." The trials of
Paul Touvier and Maurice Papon exposed deep divisions within
French society, divisions that had been papered over by a culture
that 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 often
carried out by too few members of society?these were wounds that
were deep, and it was feared that public trials of two prominent col
laborators would exacerbate them. Indeed, Francois Mitterand
famously opined that the Touvier trial would "destroy civil peace,"231
evoking exactly the kind of "justice vs. peace" argument so common in
the current discourse about the utility and benefit of international (or
domestic) criminal prosecutions as measures of accountability for the
commission of atrocities during wartime.
The fact that the trials were largely viewed as both successful
and cathartic?releasing and relieving old tensions and poisons
rather than exacerbating them232?was probably very important in
building a French "anti-impunity" culture that would see the ICC as
a necessary measure for good world governance, rather than an in
surmountable threat to French foreign policy. Finally, it should be
noted 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 legal
system,233 they were not really engaged in much transnational judi
cial dialogue at all, still, they certainly did see themselves as sitting
as members of international society. Counselor Christian
LeGunehec's brilliant report in the Barbie case makes that explicit?
rather like federal courts sitting as state courts in diversity cases, the
French courts seemed quite consciously aware of their role in inter
nalizing and incorporating international law norms and of doing so in
a manner faithful to the international origin of the applicable law. It
is thus unsurprising that a 1993 resolution of the French Institute of
International Law calls upon national courts to become independent
231. firic Conan & Daniel Lindenberg, Que Faire de Vichy?, Esprit, May 1992, at
7.
232. Leila Sadat Wexler, Reflections on the Trial of Vichy Collaborator Paul
Touvier 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 norms

impartially without deference to their governments.234
In the third phase of our survey, the French courts and French
political elites have clearly been influenced by the establishment of
the ad hoc war crimes tribunals, the resurrection of the international
criminal court project (which began in 1989), and national legislation
of 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 criminal
prosecutions in French domestic courts. That is most evident in the
indictments issued by Judge Getti in the Javor case and the Court of
Appeals decisions in the Kaddafi affair (which were overruled by
higher courts). Perhaps, eager to take their places in the anti-impu
nity transnational legal culture emerging in the 1990s, those lower
court judges went further than politics would allow and were checked
by the Court of Cassation which was not particularly keen to be out
in front of where it perceived international law to be (or perhaps the
French approach to international law as the court perceived it). The
French law of 1992 was the basis for those actions; and that law was
generated as much by the French experience with the law of 1964 as
by international norm entrepreneurs such as human rights groups
and victims associations encouraging states to criminalize the jus
cogens crimes of genocide, crimes against humanity, and grave
breaches of the Geneva Conventions. It was also no doubt influenced
by what Anne-Marie Slaughter and William Burke-White refer to as
the "European way of law,"235 that is, the far-reaching ability of Eu
ropean Union law (and by extension international law) to transform
domestic law and politics.
Thinking about the French case in terms of Koh's transnational
legal process theory provides an extraordinary opportunity to test
this theory and its application in a real situation. It also tests the
theory's applicability in the comparative context of a norm that is ex
traordinary difficult to enforce: a norm that mandates the
punishment of a country's leaders, even of a head of state, if they are
accused 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 domestic
legal system."236 He describes a three-part process of interaction, in
234. See id., at 1104 (citing Eyal Benvisti, Judges and Foreign Affairs: A Comment
on the Institut de Droit International's Resolution on the Activities of National Courts
and the International Relations of their States,' 5 Eur. J. Int'l L. 423 (1994)).
235. Anne-Marie Slaughter & William Burke-White, The Future of International
Law 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).
terpretation, and internalization whereby "international legal rules
become integrated into national law" and take on the status of bind
ing rules of domestic law.237 Certainly, Koh's analysis fits the French
cases described above. The Nuremberg principles were articulated by
an international tribunal and adopted by the United Nations; they
subsequently interacted with the French legal system in a fascinat
ing interplay between the courts, the legislature, and what we would
now call French civil society; and they were ultimately internalized in
a manner that can only be described as extraordinary, giving rise to
the prosecution of high ranking French individuals for crimes against
humanity, and to the abrogation of head of state immunity for the
French President in cases that could one day be brought before the
International Criminal Court. Indeed, the French ICC ratification de
bates suggest not only legal internalization, but political and social
internalization as well.238 The Parliament, the ministries of defense
and justice, and civil society clearly saw Nuremberg's chief premise
as both a legal and moral obligation: that no individual is above the
law and that committing international crimes subjected all perpetra
tors to prosecution under international law. At the same time, the
trial of Maurice Papon, in particular, exposed the strain of prosecut
ing one's own nationals for such activities and it suggests that
political 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, the
Nuremberg principles were never adopted in the United States, even
though the United States was the leading proponent of the Nurem
berg trials. Although it could be argued that there was interaction of
transnational actors in the guise of the former Nuremberg Prosecu
tors themselves and the work of the United Nations, there was very
little, if any, activity in the guise of interpretation by either the
courts or other legal actors, and internalization, therefore, took place
to 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 judicial
activity in France during this period. While the United States ulti
mately ratified the Genocide Convention (in 1988!), adopted
implementing legislation,239 and adopted federal legislation criminal
izing grave breaches of the Geneva Conventions in the guise of the
War 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)).
manity statute, and the Genocide Implementation Act initially
provided for jurisdiction only if the crime takes place in the United
States or a U.S. person is the perpetrator.241 This law, adopted by the
Senate in 1986 with a vote of 83 ayes to 11 noes, remained controver
sial during the negotiations with Senators arguing that extensive
reservations to the treaty were necessary so as "not [to] compromise
our constitutional form of government in the process."242
While Koh's theory beautifully illuminates, then, the reason for
the 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 United
States now seems to be behind its European cousin in the implemen
tation and application of international criminal law; but it cannot
provide us with the underlying explanation of the reasons that is the
case. For that answer, we must explore, among other things, the
"deep structure" of U.S. law to understand why America, unlike
France, appeared unable to adopt mechanisms to interpret these
principles and, ultimately, to internalize them. This, of course, is
where legal culture fits in. For as this survey has shown, and as Part
VI, below, explains further, while the United States and France share
many 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 France
and the United States diverge so sharply with regard to their posi
tions on the International Criminal Court Treaty. Some are clearly
extrinsic to the discussion in this Article. They include the fact that
France has assumed numerous international obligations over and
above those it shares with the United States?it is a member of the
European Union, which subjects it to the jurisdiction of the European
Court 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 War
Crimes Act of 1996 as amended. There is some evidence of universal jurisdiction
based 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 adopted
expanding 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 universal
jurisdiction in cases of genocide.
242. Statement of Senator Orrin Hatch, Vol. XII-7 UNA/USA Washington Weekly
Report 1-3 (Feb. 21, 1986).
243. This is also true as regards international law teaching, as a lively debate
about the relative differences between teaching international law in France and the
United States held under the aegis of the American Society of International Law
suggests.
to the jurisdiction of the European Court of Human Rights,244 and to
many human rights treaties to which the United States has not ad
hered, including the International Covenant on Economic, Social and
Cultural Rights,245 the Convention on the Rights of the Child246 and
the Convention on the Elimination of All Forms of Discrimination
Against Women.247 This has required French judges to constantly
evaluate and work with international legal norms. Combined with
strong doctrinal foundations for doing so, and a largely monist legal
tradition, we find French decisions involving international legal
norms exhibiting a higher degree of coherence than we find in their
American 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 last
century, perhaps conditioning its people to see international legal
norms as beneficial rather than burdensome in the constraints they
impose on States' freedom of action. And of course, all members of the
European Union pledged to ratify the ICC Treaty immediately, mak
ing it difficult for France to be an outlier with regard to an institution
that 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 the
international criminal court project following the First World War
and actively supported its execution in the form of the Nuremberg
trials. There is certainly no one factor that can be pointed to as deci
sive, and yet the intertwining of a long-standing commitment to
human rights with the emergence of a system of international crimi
nal justice seems to have rendered it simply impossible as a political
matter for France to do anything but support the International Crim
inal Court treaty. The United States, although embracing the
rhetoric of Nuremberg, never domesticated the Nuremberg norms
and veered sharply from the path of international engagement with
its decision not to ratify the League of Nations Treaty. For most
Americans, Nuremberg was a singular event, not the harbinger of a
new 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. 34/180, 34 U.N. GAOR Supp. (No.
46) at 193, U.N. Doc. A/34/46.
248. Rogoff, supra note 227, at 413.
on the United States. Moreover, there was no real parallel to the

French crimes against humanity cases in the United States. America
was never occupied, and although there were efforts to deport Nazis
that 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 that
were initially adopted, applied only insofar as they affect the United
States or U.S. nationals.
At the same time, there were a handful of sophisticated uses of
international criminal law and international human rights law by
American courts, such as the Filartiga and Yunis cases. Yet, none of
the opinions involved the commission of international crimes by U.S.
nationals. Filartiga250 was a civil case involving torture committed
by Paraguayans against Paraguayans, and Yunis251 involved the
commission 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 customary
international law against torture in the Filartiga case and various
anti-terror treaties that had been codified as federal crimes in
Yunis?but these cases posed no real political difficulties for Ameri
cans at the time. (Filartiga and the human rights litigation it
spawned subsequently came under attack by conservative scholars252
and has now been cabined, although not overruled, by the Supreme
Court in Sosa v. Alvarez Machain.)253 Against the Filartiga and
Yunis cases, however, stand several U.S. Supreme Court decisions
denying international law direct effect in the U.S. legal system, most
recently the Court's opinion in Medellm.254 Indeed, it seems undenia
ble that in spite of the elegant simplicity of the Supremacy Clause's
provision that "all Treaties made . . . under the Authority of the
United States, shall be the supreme Law of the Land,"255 many trea
ties, if they are not "self-executing" as that term must now be
understood, lack domestic legal force.256
American proponents of the International Criminal Court may
take 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 States
and 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 unless
Congress 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).
ences between the United States and France, there are extraordinary
similarities, including a sense of commitment to the rule of law, de
mocracy and benign government, and human rights.257 These values
are no doubt what led the United States to refrain from vetoing the
Security Council Resolution authorizing the referral of the situation
in Darfur to the International Criminal Court, even if the Bush ad
ministration had no appetite to support the referral either financially
or with the promise of military assistance to bring suspected ge
nocidiaires to book.258 The United States delegation at Rome
contributed enormously to both the substantive law and procedural
protections for the accused that are currently found in the Interna
tional Criminal Court Statute, and the former U.S. head of
delegation, David Scheffer, is now one of the Court's most fervent
supporters. Moreover, the United States has shown signs of incre
mentally moving towards the notion of prosecuting individuals
accused of genocide or certain war crimes such as the use of child
soldiers, with its recent adoption of the Genocide Accountability and
Child Soldiers Accountability Acts of 2008.259 But these small steps
forward have been taken against the backdrop of a legal culture that
has steadfastly resisted the internalization of international norms,
often on constitutional grounds, and it has failed to take either the
moral 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 the
ICC Statute; but it seems clear from this study that it will have a
great deal of difficulty doing so. It is not just a question of politics or
superpower status, but a way of perceiving international laws as lois
d'exceptions, as foreign to the domestic legal order, that has made it
difficult even for some liberal internationalists to come right out in
favor of the ICC.260 In the United States, international law is seen as
exceptional, even aberrant, whereas in France it is simply another
source of law to be applied. That does not mean that politics never
influences law in France?it does. Nor does it mean that American
liberal internationalists or transnationalists, as they are sometimes
called, 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 to
put 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 in
the United States (as opposed to Europe), and neither Hillary Clinton nor Barack
Obama 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 his
view upon becoming President.
Article has demonstrated, legal culture matters with respect to politi

cal decision making; and with respect to potentially controversial
decisions, such as the decision to ratify a major treaty requiring the
application of international legal principles to individuals holding
great power, it may matter to a very significant degree indeed.

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The Nuremberg Paradox

Author(s): LEILA NADYA SADAT

The Nuremberg Paradox

The United States is generally proud of its leadership role at the

* Henry H. Oberschelp Professor; Director, Whitney R. Harris World Law Insti

The United States of America is generally proud of its leadership

1. Indeed, following the trial, Walter Lippman enthused:

4. Ernest O. Hauser, The Backstage Battle at Nuremberg, Saturday Evening

8. Leila Nadya Sadat, Shattering the Nuremberg Consensus: U. S. Rendition Pol

Contrast the mood in Washington during the same time period.

2000, available at http://treaties.im.Org/doc/Treaties/1998/l 1/19981110%2006-38%20

to see ratification of the International Criminal Court (ICC) treaty as

27. Emmanuelle Jouannet, French and American Perspectives on International

address of Chief Prosecutor Francois de Menthon to the International

foster a transition to democratic principles of government, and estab

II. Developing a French Jurisprudence of Crimes

47. International Military Tribunal (Nuremberg), Judgment and Sentences, Oct.

international law to be applied, no international court with jurisdic

Court's Statute, which was presented to the Association's member

B. The Occupation of France and the Nuremberg Trials

76. Cited in Ferencz, supra note 62, at 24-25.

of the Nuremberg Charter provided that the International Military

The French prosecution often suffered from a lack of resources

95. London Agreement, supra note 88.

III. Bringing the Nuremberg Principles Home: The Barbie,

participated, along with other members of the new United Nations

Le Proces de Nuremberg Devant les Principles Modernes du Droit Penal International,

war liberalism of the Democratic Party, in Vietnam and

The central project common to the new mainstream [interna

116. Kennedy, supra note 115, at 417-18.

our country, an authority superior to that of the law."125 Confirming

The Touvier Case

The Prosecution of Klaus Barbie: 1983-1988

144. Barbie II, supra note 138.

The Resumption of the Touvier case

The Prosecution of Maurice Papon

If Touvier's case tested the capacity of the French courts to apply

They were arrested and Abraham was sent to Auschwitz where he

167. The arret de renvoi is the functional equivalent of an indictment in a common

it would have, to be life imprisonment. That was the sentence Paul

IV. A New Era of Accountability

speak, anything can be said, even by the accused. My father

The 1992 Law

Following the adoption of the 1992 law, several interesting cases

so as to permit preliminary acts of inquiry191 even without prior con

191. Preliminary acts including identification of the suspect and determination of

upon French territory and readily identifiable.207 Yet France is far

B. France's Ratification of the International Criminal Court

213. Kadhafi I, supra note 209.

able to observe and influence the treaty process using instantaneous

V. The French Experience as Transnational Legal Process

minded brethren. But it is certain that the Nuremberg trials were

225. Thomas Buergenthal, Self-Executing and Non-Self-Executing Treaties in Na

actors in the international arena, and to apply international norms

VI. Conclusion: The Nuremberg Paradox

on the United States. Moreover, there was no real parallel to the

257. Rogoff, supra note 227, at 408.

Article has demonstrated, legal culture matters with respect to politi

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