French Justice Struggles With War-Crimes Issues

THE courtroom here is simple and very modern. Only the bullet-proof glass box that encloses Paul Touvier and his guards signals the extraordinary event that is taking place. For the first time, France is trying not a German, but a Frenchman, for crimes against humanity. Mr. Touvier has turned his chair on an angle, away from the audience, away from the lawyer who is speaking.

`It's not the violence of the crime - even if the crime is carried out with horrifying brutality - nor the number of the victims, that makes a crime against humanity,'' lawyer Michel Zaoui says, then pauses. His argument, after four days of often theatrical soliloquy on the part of 23 of his colleagues, rings with lucidity. ``There is crime against humanity when murder is made legal for racial or religious reasons.''

On June 29, 1944, seven men - Jews - were lined up against the wall of a village cemetery by members of the Lyon Militia and shot. This is the act for which Paul Touvier, chief of intelligence for the Lyon Militia, was tried in Versailles between March 17 and April 20, found guilty, and sentenced to life imprisonment. Touvier's defense attorney did everything to keep the proceedings focused exclusively on this incident. He has since appealed the verdict. But fitfully, over the course of days of testimony by eyewitnesses and experts, the context that was the trial's constant backdrop was revealed.

The context is Vichy, France's wartime government and the Militia it founded to hunt down resistants of all kinds and to ``fight continuously against the Jewish leprosy.'' Details of how the Militia went about its sworn duty gave further elements of context.

They were evoked by fleeting images: the Jesuit high school that served as headquarters, photographed from every angle; a piece of paper with seven dead faces pasted on, passed from hand to hand; Louis Goudard, begging not to be forced to break his silence and tell how it was to be interrogated - the torture that takes place between sessions of torture in the mind of someone afraid he might speak.

What complicated the analysis of this context is the way French jurisprudence has dealt with crimes against humanity. According to the definition developed over the 21 years it took to bring this case to trial, an act can be a crime against humanity only if it was committed in the name of a ``European Axis power.''

Thus, if Touvier organized the shooting at Rillieux (there was no doubt he did) under German orders, then he committed a crime against humanity, but if he acted on his own initiative, then he is ``merely'' guilty of a war crime, for which the statute of limitations ran out 27 years ago.

This irony provoked various logical contortions, notably on the part of the prosecutors. Where the argument for years has been that Touvier acted on his own - a way of countering any notion of duress - now the same lawyers were insisting on a direct Gestapo order, to stay within the strict legal definition of complicity.

But Mr. Zaoui, speaking outside the courthouse, contests the point: ``I find the whole question of a direct order uninteresting. There didn't need to be a German order because the Germans and the Militia had the same aim: Touvier wanted a `pure' France and the Germans wanted a `pure' Europe.'' And each, Zaoui says, used the other.

Not only do lawyers on the same team disagree in open court, but under French procedure the presiding judge conducts the questioning. Judge Henri Boulard, in this case, rarely asked a nonleading question. For example: ``You hired some pretty unsavory characters for your service, didn't you, Touvier?'' Answer: ``You don't do the police with choir boys.''

Touvier has a faint voice, like a candle about to go out. At the slightest interruption, he would stop: ``I can't remember.'' ``I'm too tired, I can't go on.'' To make him speak, one would have had almost to coax him. But that no one in the room, least of all the judge, was anxious to do.

What kept this from being a show trial, under these circumstances, was the skill of Touvier's attorney, Jacques Tremolet de Villers. He was omnipresent, delicately flicking back the sleeves of his robe as he reached for a document, pouncing whenever the proceedings strayed from the facts of Rillieux. ``This is not the trial of the Militia,'' he thundered one day, ``this is the trial of a man whose name is Paul Touvier, for events that occurred at Rillieux-la-Pape. No court on this planet is competent to conduct the trial of the Militia.''

In his ardently declaimed closing statement, Mr. Tremolet argued that Touvier was placed in an impossible situation by the Germans, that he had actually saved lives by reducing the number of victims to seven (reasoning familiar from the Nuremberg trials).

He concluded by invoking time. ``Fifty years excluded from society. That's enough, for him, and for our country.'' He read from an interview with French President Francois Mitterand, published two days earlier: ``Forty-five years later, these are old men. Putting them on trial doesn't make much sense any more.''

Zaoui, however, had seen time in a different light: ``Time,'' he argued, ``shouldn't lead to forgetfulness, it should allow access to memory. It took 50 years to break the silence, to emerge from the shame, to look Vichy in the face - to speak, without hate and without fear. Only with the third generation can justice be done, in all serenity.''

Outside, when the court had recessed to deliberate, Larry Glaeser stood waiting for his father, Henri, who was 18 when his own father was shot at Rillieux.

``This trial was an event,'' Mr. Glaeser said. ``It allowed me to discover my grandfather, who had always been a mythic figure, and therefore distant. And it placed me before humanity in a way I'd never seen it before: humanity in the worst it has generated, and in the best it has to offer.''