TORTURE:
Don't Ask, Don't Tell

By JOANNE MARINER

Monday, Feb. 04, 2002

Although many human rights groups have vigorously supported the prosecution, the recent conviction of a former French general for "justifying war crimes" is a dubious victory for the human rights cause. The general, Paul Aussaresses, was found guilty on January 25 after a trial in which he admitted participating in the torture and murder of dozens of Algerians during France's colonial war.

Without a doubt, relatives of the thousands of suspects who were "disappeared" during Algeria's independence conflict must take some satisfaction in seeing a French court formally condemn the French army's abusive practices, even if, from their perspective, the judgment is more than forty years late. The court's official acknowledgment that the abuses committed by the French in Algeria were war crimes and, as such, unjustifiable in any circumstances, marks an important step forward. Although much has been written about the systematic use of torture during the war, France has never apologized for its army's conduct, nor have French officials shown much interest in sanctioning an official reexamination of the period.

Yet the Aussaresses conviction remains extremely troubling. In a problematic encroachment on free speech principles, the former general was not convicted for what he did in Algeria, but instead for what he said about it.

Aussaresses in Algeria, 1955-1957

Aussaresses, an 83-year-old French reserve officer, published a memoir in May 2001 titled Services speciaux, Algerie 1955-1957. The book was an unapologetic account of his actions during the Algerian independence conflict, including first-hand descriptions of torture and summary executions.

Not only did the book describe Aussaresses' brutal interrogations of Algerian "terrorists," it justified them as necessary and effective. "The best way to make a terrorist talk when he refused to say what he knew was to torture him," the book explained in a characteristically blunt passage.

The Aussaresses book also contained explicit accounts of the killings of prominent Algerians, including Larbi Ben M'Hidi, the FLN commander for the Algiers area, and Ali Boumendjel, a respected lawyer. "We grabbed [Ben M'Hidi] and hanged him in such a way that it looked like suicide," the book states. On Aussaresses' orders, Boumendjel was thrown from a rooftop walkway - another fake suicide.

French Responsibility for Atrocities

Although its publication sparked an immediate uproar, the book was not the first written account of the French Army's depredations in Algeria. Indeed, in 1958, just after Aussaresses left the country, journalist Henri Alleg published his book La Question, in which he exposed his own brutal torture at the hands of the French. In 1972, French historian Pierre Vidal-Naquet published La Torture dans la Republique, describing the army's frequent and systematic use of torture in Algeria. And in 2000, in the first of a series of revelations that led to the publication of the Aussaresses book, sixty-four-year-old Louisetta Ighil Ahgiz told journalists of Le Monde about the three months of near-continuous torture she suffered in 1957, after being captured by the French Army.

But what was notable about the Aussaresses book was its affirmation that torture and killings were tolerated, if not tacitly condoned, at the highest levels of the French government. Aussaresses takes pain to note that the civilian authorities were aware of the military's activities and chose not to stop them. Former President Francois Mitterrand, Justice Minister at the time, is one of the high officials who is singled out in this regard.

Given the French tendency toward ignoring the unsavory aspects of their history - and the government's specific unwillingness to probe too deeply into the events of the Algerian war - this testimony is of great historical value. As historian Vidal-Naquet has pointed out, the book clearly establishes the responsibility of the French government for the atrocities committed in Algeria.

Paris, 2001-2002

With its graphic descriptions and unrepentant tone, Services speciaux, Algerie 1955-1957 provoked instant outrage. President Jacques Chirac said that he was "horrified" by the book's revelations, calling for Aussaresses to face disciplinary sanctions, while human rights groups and others said that Aussaresses should be criminally prosecuted.

Under French law, however, Aussaresses was effectively shielded from prosecution for the atrocities committed in Algeria. Two amnesty laws, passed in the 1960s, bar the French courts from adjudicating charges relating to the conduct of the Algerian war. The country's war crimes statute, moreover, only covers crimes committed during World War II or after 1994.

Frustrated in their efforts to prosecute Aussaresses for his actions, several human rights groups filed suit against him for his words. He and his publishers were charged with "complicity in justifying war crimes" - a press offense with a maximum penalty of five years' imprisonment and a $41,000 fine.

The case went to trial last November, with Aussaresses being, in person, at least as feisty and unrepentant as he had been in print. "I would do it again today if it were against bin Laden," he said to the court.

In late January, Aussaresses was found guilty of justifying war crimes, but assessed a fine of only $6,500, compared to the $13,000 assessed his two editors. His lawyer promised that he would appeal the conviction. Only a week previously, a Paris court had dismissed a criminal suit against Aussaresses brought by two sisters of Larbi Ben M'hidi, the FLN leader that Aussaresses had confessed to killing.

The Duty of Bearing Witness

In presenting his defense to the court in November, Aussaresses spoke of "the duty of bearing witness." Coming from someone who committed atrocities, rather than endured them, such words may seem a cynical echo of statements made by victims worldwide, many of whom struggle ceaselessly to have their stories heard and believed. And yet the full history of the conflict in Algeria will only be known with certainty when more people like Aussaresses choose to speak.

It is easy to criticize Aussaresses' conviction on pure free speech grounds. But it must also be emphasized that Aussaresses' book - unlike recent statements and articles by American lawyer Alan Dershowitz - was no abstract defense of torture. It was, most importantly, a first-person account of historical events.

Unfortunately, the French government that condemns Aussaresses for his revelations is that same government that refuses to open its military archives on the Algerian war, and that fails to establish a truth commission or some other authoritative mechanism to investigate the war. Until the French authorities show some inclination to back up their condemnation of atrocity with meaningful action, their words ring quite hollow.

"Before turning the page," says Aussaresses in the introduction to his book, "it is necessary that the page be read and, therefore, written." The statement, though self-serving, is still correct.


Joanne Mariner is a human rights attorney in New York. Her previous columns about other human rights issues can be found in FindLaw.com's archive.

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