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apply in the case of genocide or crimes against humanity in recent times (those, for example, condemned by the International Criminal
Court), all the history laws passed by the French Parliament would include, both retroactively and into the future, an automatic provision:
that is, no one would be able to make a move in the field of history without risking three years in prison (which is the specific penalty chosen
by the European judicial authorities). Would France, which initiated this law, then be inclined to agree to the demands of the Baltic
countries? In return for their support, they wanted the Council of Ministers of the EU (which in Europe has the legislative power) to define
the massacres committed in the twentieth century by the Communist regimes as crimes against humanity hence protecting them from being
disputed and trivialized.
Of course the enormity of these various crimes is undeniable. But where should we call a halt? Should this French virus not be prevented
from spreading throughout Europe before it is too late? Surely we should hasten to put an end to this pattern of alternate accusation and selfflagellation, which, under the pretext of prohibiting disagreement about a list of historical events that grows longer every day, has only one
real victim freedom of research and of expression.
Although in January 2006 the President solemnly declared that it is not the job of Parliament to write history, France continues, locally and
globally, to pose as the guardian of world memory and the champion of atonement via the law. France is always ready to confess to sins as
long as they were committed by someone else. Is this an excess of humility? Rather, an excess of self-importance.
Retroactive legislation
These laws that violate the Constitution also violate the general principles that underpin any law, that is to say, the French Declaration of
Human Rights and in particular its Article 8, which states that no one shall suffer punishment except it be legally inflicted in virtue of a law
passed and promulgated before the commission of the offense which obviously comes to the same thing as prohibiting retroactive laws.
But these history laws are of their very nature retroactive. That is, the law passed on October 12, 2006, which imposes criminal sanctions
on anyone who disputes in any way the application of the concept of genocide to what happened in Armenia in 1915, is not retroactive with
respect to the misdemeanor that it punishes: anyone who might want to dispute this event is on notice that from now on he or she risks
imprisonment. What is retroactive is the actual definition of the crime of genocide.
The concepts of crime against humanity and genocide are recent ones. The word genocide was coined in 1944 by the jurist Raphael
Lemkin to describe the crimes of Nazi Germany. The term crime against humanity was recognized in international law in 1945 by the
military tribunal in Nuremberg, and genocide in 1948 by a UN agreement.
In French criminal law, genocide exists only as one category of crimes against humanity, but the full legal definition adopted is very
detailed, taking up about fifteen lines of text. The concept, though defined analytically and in specific detail, still remains somewhat vague;
the French definition does not correspond exactly to that of the UN, ours being looser, probably for good reason. It is wider than the idea of
extermination based on racial or religious characteristics, by including any extermination based on an arbitrary criterion. To count as
genocide, the other must simply be perceived as other and systematically exterminated for that reason alone. On the French
interpretation, for example, the extermination of the kulaks by Stalin, or of the intellectuals (meaning anyone wearing glasses) by the
Khmer Rouge, would count as genocide a definition which is not altogether a bad one. The EU interpretation, however, as it appears in the
draft of the framework decision under review, is not only narrower than the French one, but also narrower than that of the United Nations,
which counts religiously motivated massacres under the overall rubric of genocide. At the request of the British government which perhaps
feared that they would get into trouble because of Northern Ireland the trivialization of crimes against humanity and genocide, as these are
implicitly defined today by the European Union, will be illegal only if any religious criterion for the persecution is combined with an ethnic
criterion. In Europe, consequently, white Protestants are still allowed to trivialize their maltreatment of white Catholics (and vice versa), in
the same way that black Muslims are allowed to trivialize the abuses they have committed on black Christians as much as they want (and
vice versa?).
It is clear that not only are the legal concepts of genocide and crime against humanity recent ones, but that their very definition is a work in
progress. Would this not be one more reason to enforce them sparingly? This is not, it seems, what our leaders think. Although this new
concept is still developing, they have not hesitated to apply it to a crime committed in the fifteenth century (article 1 of the Taubira law). We
are faced with legislative provisions that apply retroactively over a period of five hundred years an unprecedented situation and that are,
moreover, fundamentally anachronistic. In history, of course, anachronism is the ultimate sin. But how to explain to politicians, who may not
all be fascinated by the discipline of history, that mentalities change over time, that neither sensibilities nor moral values are the same as
they were ten centuries ago? What is obvious to a historian is not so to politicians and the media. Surely an educational effort could be made
here to explain these points, an attempt directed at informing public opinion, something that academics have been very wrong to neglect. But
to get their points across, now that diversity is so fashionable, will they have to phrase their claims for the past in terms of the right to be
different?
Shoddy work
In any case, it is not the perpetrators of crimes against humanity, retroactively (and anachronistically) defined, who are to be punished: they
are long gone! So we are to punish the historians: the French Parliament expressly agreed to do so on October 12, 2006. One deputy who had
the courage to propose an amendment which would exclude academic and scholarly research from being covered by the second law on the
Armenian genocide saw this proposal rejected by his colleagues who thus confessed quite openly that it was precisely academic research
on certain topics that they wished to ban. By rejecting this amendment, they confirmed what the jurists had foreseen: that academics,
scholars, are targeted by these new penal laws.
These dangerous and juridically unsound history laws also fail to go through the normal procedure for the preparation of legislation. As
the bills in question are never government projects but only private bills submitted by deputies, they do not go through the Conseil dEtat,
which might at least edit out their infelicities. However, it can happen that the government is in complete agreement with the parliamentary
proposal, and may even turn out to be its instigator: so why, instead of filing a government bill, does it choose this sleight-of-hand trick
fronted by a deputy or a senator? Precisely to avoid having it examined by the Conseil dEtat, with all the timid objections that its experts in
legal wording might advance.
Some of the texts of these bills were so shoddily prepared that they were not even debated in committee by the internal parliamentary body
charged with technical improvements to the wording of bills. To avoid this standard vetting procedure, some deputies, connected politically
or sympathetically to certain organizations, factions, or pressure groups, took to introducing amendments in open session. This is what
happened with the Vanneste amendment on the teaching of the positive aspects of colonization: it was put on the agenda at the last
moment, so that no jurists could determine its implications before it was adopted as it was, unanimously, we may recall.
That said, this Vanneste amendment which produced such an uproar was, from a juridical point of view, hardly more dangerous than Article
2 of the Taubira law, which required teachers to allocate a consequent place to the history of slavery. Consequent? This word, apparently
used here to mean important, belongs neither to the French language nor the terminology of the law. What would judges decide if they had
to pronounce on it? What is a consequent place? Five minutes? Two hours? A semester?
How can anyone take seriously laws that are so poorly worded? How can anyone abide by them? The second law on the Armenian genocide
was so sloppy that its own author spent the days just before the debate amending it himself all over the place: sometimes he proposed a year
in prison for offenders, sometimes five, and vice versa all completely at random. In the end, he had added so much and crossed out so
much that he had to file a cleanup amendment to restore some order and renumber the whole thing; on the eve of the vote, his proposal
was still a mess. When a law is written in such a slapdash way, who would not be justified in treating it with contempt?
As well as violating legal standards, these laws can also violate the past. Take the law of May 21, 2001, which, its title says, concerns
slavery and the slave trade. Any jurist would naturally be surprised to hear that more legislation is needed on this question, because since
1926 the slave trade has been a crime punishable under international agreements that are directly applicable in French law, and it is already
defined in our Penal Code (article 212.1) as a crime against humanity. But all of that had to do with present or future crimes. In 2001,
something new came along: the judging of the past.
Should we really judge the past in a court of law, applying our modern legal and moral concepts to it? And if Parliament thinks we should, if
it deems it useful and necessary to legislate, as it has in this case, for the fifteenth century, why does the body of the text include some fine
distinctions that the title of the law does not lead one to expect? Despite its very general title, it turns out, from article 1 onward, that only the
Atlantic slave trade, and the trade in the Indian Ocean that brought Africans to Mauritius and Runion, are considered to be crimes against
humanity. There is no mention nor condemnation of the Arab slave trade and slavery among the Arabs, nor of the slave trade among African
nations themselves, though all of these were extensive and more long-lasting phenomena: in some cases they continued legally within these
nations, if not internationally, up to the 1980s (in Niger and Mali, for example) and even until 2007 (Mauritania has only just adopted a law
which bans slave-owning).
Slavery, a universal crime, is bizarrely reduced by the Taubira law to the slavery imposed by Europeans and the triangular trade. This seems
perfectly reasonable, we might reply, as this is the crime for which the French bear responsibility. That argument might be admissible,
except for the enormous confusion regarding the dates involved. France did not officially participate in the slave trade until the late
seventeenth century, but the period covered by the law includes the fifteenth, sixteenth, and seventeenth centuries. So the crime now being
acknowledged by France began to exist before the French began to commit it. France, standing in for the Turks, had already acknowledged
the Armenian genocide; now it acknowledges in law the sins of the English, the Dutch, and the Portuguese, among others. In including the
fifteenth century in the time-frame, it even acknowledges the Atlantic slave trade in a period before America was discovered!
There is more: In the course of the discussions preparatory to the parliamentary debate, some speakers brought up the enslavement of Native
Americans, saying quite rightly that in South America the European colonists enslaved not only Africans but Indians as well. In support of
this point, a reference to Amerindian slaves was added to one article, which that now says the Atlantic slave trade was a factor in common
for Africans and Amerindians. We have to confess ourselves perplexed at this point: if Carib Indians were transported to Africa, this news
has been kept secret for some time. But that is what the law says happened, if we read it literally. Are we then required under threat of
prosecution to agree that Amerindians were among the victims of the Atlantic slave trade?
If historians are to be hauled before the courts, at least let it be by virtue of laws that are carefully worded and historically accurate, since,
vague as they are, these laws now circumscribe the part of their field that is open to scholars. This at least is how the identity-based
organizations who have taken on the responsibility for enforcing these laws understand the situation. In late 2005, the historian and academic
Olivier Ptr-Grenouilleau, author of a well-received book, Les Traites ngrires, which won the Senate history book award, found himself
taken to court by the Collectif Antillais, Guyanais, Runionnais et Mahorais (Collectifdom) and the Collectif of the sons and daughters of
deported Africans. The lawsuit was based on this claim: In saying that the slave trade spanned thirteen centuries and five continents, M.
Ptr-Grenouilleau revealed a desire to sidestep the unique character of the Atlantic slave trade by adopting a chronological and geographical
scale broader than that defined in law. These are the reasons for the civil and criminal suits that historians are threatened by. For what this
lawsuit clearly asserts is that the law defines the official limits of intellectual activity and that anything outside them is prohibited. In future,
when discussing slavery we are not to speak about anything beyond what the law authorizes, that is to say the European slave trade to the
exclusion of any other.
But speaking about it at all that is to say studying, publishing, and teaching it would still be going too far, to judge by the press release
issued by this same Collectifdom, dated December 15, 2005: The slave trade and slavery are supra-historical phenomena, in that they are
recognized as crimes against humanity. What a clever sleight-of-hand, to be sure: we cannot talk about the Arab slave trade, because to do
so would trivialize the Atlantic slave trade, but we cannot speak of the Atlantic slave trade either, because Parliament, by recognizing it, has
moved it outside history altogether. History has thus become moot. The End of History.
What are French historians to do when they run into a crime against humanity that has been made sacrosanct by a history law? Get out of
the way, and find a different line of work!
Hereditary crimes
If the more privileged deputies, ministers, journalists, heads of organizations are plunged into such a state of confusion on the issue, how
can we expect the general public to respond to it? It seems to be at a loss, and inclined toward obscurantism. The confusion of terminology in
French law results in a competition for the role of most victimized group; it is the absence of a statute of limitations for a sin that turns it into
a form of sacrilege. The statute of limitations is another legal concept misunderstood by the victims, by the general public, and which is
less excusable by the media. They all view the absence of a statutory time limit on guilt as normal: since time has no beginning or end, the
legal responsibility for a crime and the right to reparations, financial or otherwise, are presumed to last until the end of time. Sins are to be
punished all the way back to the sons of Adam and for all eternity to come.
In this context we need to bring up the meaning and the history of the inclusion of article 213.5 in the French Penal Code. Under the Ancien
Rgime, certain crimes, called imprescriptible, or inalienable, were punishable up to the death of their perpetrators; these included
sacrilege and lse-majest. The Revolution, taking a more modern line, decided that all crimes would have a statute of limitations of
twenty years, meaning twenty years from the date the crime was discovered.
It may be that today, because of longer average life expectancy, this period is too short even in common law. Be that as it may, after the
Franco-German rapprochement of 1963, fearing that the last Nazi war criminals would escape punishment, in 1964 France decided to extend
the period of possible prosecution for crimes against humanity, which had originally been set at twenty years, in line with all other crimes.
But rather than extending it to forty or fifty years, it was decided that these crimes would be imprescriptible, enjoying no statute of
limitations at all. In this case it came to the same thing, since in criminal law being imprescriptible simply means that a crime can be
punished as long as the criminal is alive up until death, but, of course, not after it.
That is not, however, how the term was understood by the general public. Due, no doubt, to a confusion with the political-philosophy
concept of droit imprescriptible or inalienable right, which appears in the French Declaration of Human Rights, in the minds of the
citizenry this penal concept came to lose its proper legal meaning: today, the word imprescriptible applied to a crime is seen as
synonymous with unforgettable or irreparable, and inevitably in due course, hereditary. The punishment of the crime should go on, it
is generally believed, even after the death of the criminal: in short, crime is inherited, passed down from generation to generation, not even
stopping at the third and fourth, as the Bible puts it.
This notion of hereditary crime little by little leads to another one, utterly contrary to enlightened thinking: collective guilt. Since you
cannot put skeletons on trial, and it would be difficult, centuries later, to find the direct descendants of the perpetrators, guilt passes to the
presumed descendants taken collectively, that is, to a whole nation, a present-day nation. By contrast, we may recall that at Nuremberg,
although the crimes judged were of unprecedented atrocity, it was not some eternal Germany that was convicted but twenty-two Nazi
leaders.
Franoise Chandernagor
Vice-president, Libert pour lhistoire.