Research perspectives on lawyers during the Algerian war

Research perspectives on lawyers during the Algerian war1

        During the Algerian war, repression against people living under colonial rule made conventional legal defense “impotent and almost absurd”. For this reason, lawyers had to come up with a “new style and original undertakings”. These quotes could have been attributed to Jacques Vergès, one of the twentieth century’s theorists of political defense also known as the “rupture strategy”. In fact, they were written by his colleague Robert Badinter who, in a newspaper article entitled “The Trial of the defense” published in L’Express, discussed the fundamental difference between the “defense of an individual” and the “defense of a cause”2. This distinction is the best explanation of the uniqueness of the rupture strategy. Indeed, after Jacques Vergès, many have tried to define its meaning and measure its effectiveness3. Since the Algerian War, journalists4 and legal practitioners have sought to understand it5. Ten years after the death of Jacques Vergès, lawyers continue to situate themselves in relation to him. Vincent Nioré, vice-president of the Paris Bar, speaks of Vergès as if he is an “idol”6 while the lawyer François Saint-Pierre believes that the defense he embodied is outdated7.

 

In terms of research, the work of the historian Sylvie Thénault represents a turning point in our understanding of legal defense during the Algerian War8. Her work is frequently mentioned by scholars, including Jean-Pierre Royer in his Histoire de la Justice9, Vanessa Codaccioni, historian and political scientist10, Jean Danet, legal scholar11, Julien Ortin, legal sociologist12. Mohamed Djema13 and Ataouia Kralfa14 have taken an interest in this subject in their academic work in Law and in Legal History. There is real interest in this type of defense with numerous scientific events such as the conference “Black Robes at the Front” in Algiers in 201115, the conference “Let’s Open the File” in Paris 202316, as well as the exhibitions “Lyon Lawyers Helping Algerians at War” in 201117 and “Lawyers and the Algerian War” in 201418.

The purpose of this article is to give an overview of my research, the initial results of which are now available online19. My thesis, directed by Florence Renucci, is entitled “The Franco-Belgian Judicial Front during the Algerian War”. One of its objectives is to analyze resistance strategies through the use of law. In my opinion, these strategies can be understood through two angles: the study of gender and the study of political defense.

Unlike previous studies, I argue that the lawyers involved in the Algerian War were particularly young (barely thirty years old), talented, politicized, (most of them members of the Conférence du Barreau de Paris, an association formed by young lawyers belonging to the Paris Bar and of various left-wing parties), and that most of them were women. This goes against the idea that in order to be successful at political defense, lawyers needed to have “nerve and experience”, i.e. to be “old hands” in political trial20.

I. The specific nature of political defense during the Algerian War

Legal defense during the Algerian War took on a very specific form. First of all, it was carried out by a legal defense group comprising about 80 French, Algerian and Belgian lawyers who represented the French Federation of the National Liberation Front (FF FLN). This group was fairly free to act at a legal level with regards to the cases they were defending. However, they were entirely financed by the FF FLN, which was a banned organization, and the structure was highly hierarchical. For example, the head of each geographical zone had to submit reports on their activities to an FLN leader. Secondly, this type of defense focused on a specific political cause instead of the individual accused. Consequently, when it came to allocating cases, lawyers could easily replace or “substitute” each other. The obligation to defend FLN activists on an exclusive basis was the main difference with other previous legal defense groups such as the lawyers of “Secours Populaire” (Communist affiliation) or the “Comité de Soutien aux Victimes de la Répression” (Messalist affiliation).


Around 1960, the 80 lawyers of the FF FLN legal defense group were responsible for defending 5,000 to 6,000 detainees in France before the civil and military courts, but they also defended detainees before the military courts in Algeria. The group was subjected to considerable repression. In 1959, its founder, Amokrane Ould Aoudia, was murdered, probably on the orders of the French government. The following year, Abdessamad Benabdallah and Mourad Oussedik were held in internment camps. Jacques Vergès, Michel Zavrian, Serge Moureaux, Cécile Draps and others were prohibited from practicing their profession in France.

These sanctions call for a better understanding of the specific nature of “political defense”. “Rupture strategy” is not equivalent to “political defense”. In fact, it is the ultimate stage of “political defense” because it challenges the jurisdiction of the court and therefore breaks off all dialogue with the judge. In “political defense”, on the other hand, the lawyer challenges the incorrect application of the law. Given that the emergency legislation applied during the Algerian War retained the most disadvantageous legal provisions of the Military Code of Justice, without offering any of the Criminal Law, or prisoners of war conventions, lawyers contested the infringement of the rights of the defense. Preparation time for the defense was reduced, there was no right to appeal, hearings were not open to the public and judges were not impartial. In addition, the freedom to choose counsel was not guaranteed because of sanctions against lawyers. But contrary to popular belief, “political defense” does not necessarily distance itself from the case. In the majority of cases defended during the Algerian War, the FF FLN lawyers did focus on evidence, systematically challenging ballistics tests, graphological expertise, the reliability of witness statements and, of course, of confessions which were often obtained as a result of torture and thus deemed inadmissible.

II. Overcoming difficulties of access to archives

Sylvie Thénault has opened up a stimulating perspective on the course of justice in Metropolitan France21. The French central government had to take into account the criticisms of Parisian intellectuals who opposed the use of torture and the emergency legislation. Repression was therefore less severe in Metropolitan France than in colonial Algeria. Unfortunately, the exploration of the French side of the legal repression during the Algerian War was made impossible because of lack of access to archives.

Archives related to the Algerian War should have been accessible in 2012, at the end of the legal period of closure, but it is only on July 2nd, 2021 that the French Conseil d’État ordered the government to open the archives22 which was done through a ministerial decree on December 22nd, 202123. This decision opens up interesting research prospects even though access to the Military Justice Archives Centre at Le Blanc24, the National Archives Centre at the Fontainebleau site25 and the Diplomatic Archives Centre at Nantes is still not yet permitted26. Also some of the archives which were made accessible were all of a sudden deemed to be asbestos-contaminated and therefore inaccessible.

Moreover, the lawyers were not theorists and there are not many academic works available. The difficulty of accessing lawyers’ archives is also a problem. In France, lawyers’ professional ethics impose absolute secrecy, which goes beyond the conditions governing access to archives covered by medical secrecy. Some lawyers even consider that 120 years is not long enough to allow historians to work on their archives27. Fortunately, when it comes to political cases, the approach to secrecy varies28

With the adequate authorizations, I was able to work on the deposited archives of lawyers such as Jean-Jacques De Felice, Claudine Nahori, Gisèle Halimi or Nicole Dreyfus. I also managed to access the archives of law firms that have disappeared due to the death of their lawyers. In other instances, lawyers have told me that giving access to their political cases was also a militant act. Quoting the words of one of them, the lack of confraternity of the Bar at that time, through the disciplinary sanctions imposed by the Bar Council, freed him from “certain ethical principles which he otherwise would have felt obliged to follow”29. According to another lawyer of the group, the “seizure of Jacques Vergès’ archives” over the past ten years, without any provision for access, makes it imperative to find alternative solutions for access30.

As a large part of the lawyers’ work during the Algerian War consisted of oral hearings, I had to collect their testimonies through interviews. This approach enabled me to clarify their hearing notes and better understand the functioning of an informal network. It also brought to light that they also participated in actions that fall outside the lawyer’s code of ethics (for example, participation in escapes from prisons, instructions given during hunger strikes, revelation of secrets of the investigation and plans to kill police officers, an executioner and even an investigating judge). The oral nature of these sources, combined with access to lawyers’ private archives, was the best way to surmount the inaccessibility of institutional archives.

Fortunately, because the FLN archives were not deposited in the Algerian National Archives Center but preserved by one of the leaders of the Federation of France of the FLN, I was able to analyze them and gather further information on how the lawyers worked and were organized. For instance, I was able to confirm that they were paid by the FLN and that their fees were modest and paid on a monthly basis, which was a key element of the “Lawyer’s Trial”. In 1961, the French government sued 5 FF FLN lawyers for attacking national security because they were paid by what was considered by a terrorist organization. The trial ended with the acquittal of the lawyers because the government was not able to prove that they were indeed paid by the FF FLN.

 

III. The originality of two concepts: the ‘militant lawyer’ and gender

I would like to raise two particularly interesting perspectives for legal historians. My thesis on the Franco-Belgian Judicial Front allows me to use two concepts that have rarely been used until now and that are far from being unanimously accepted in the legal profession or even among legal historians.

The first one is the notion of the “militant lawyer”. Historians and sociologists, who have long been used to the concept of “cause lawyering” have no particular reservations on the use of such a term, as can be found in the studies by American and Canadian researchers Austin Sarat, Stuart Scheingold31 and Meredith Terretta32, in the research carried out in Europe notably by Liora Israël33 Maria Malatesta34 and Axelle Brodiez35 as well as in Marine Bellot-Gurlet’s research on the present-day activist use of the Law in Cameroon36. This is not the case, however, with legal practitioners. In February 2020, the President of the Paris Bar Association (Olivier Cousi) declared:


A lawyer cannot at the same time be militant about a cause and support the actions, or imply that he can support the actions, of his client, because that does not give him the necessary distance to be able to defend him37.

This concept is key in my research on the Algerian War. It explains, amongst other things, why the lawyers of the FF FLN went beyond their role as lawyers and even sometimes broke the law.

The second concept that legal historians are slow to grasp is that of gender. This topic has been the subject of scholarly research only a handful of times through ANR projects (Agence Nationale de la Recherche of France), such as the REGINE project (Recherches et Études sur le Genre et les Inégalités en Europe), the HLJP Genre project38 and the VioletGinger project.

Adopting a gendered approach in my research has allowed me to identify female lawyers involved in cause lawyering and in decolonization. Indeed, without entering into the details of my thesis, in the 1950s, the FF FLN legal defense group was comprised of more women than men, while the Paris Bar had a much lower percentage of women (with only 25% female lawyers)39Despite this over-representation (13 women out of 25), none of these female lawyers were authors of books or journalistic articles during the Algerian War40 They are barely mentioned in works that were published by the group and written by their male colleagues, such as La Défense politique41 or Les extraditions d’Algériens ou le chemin de la guillotine, which completely omits the lawyer Cécile Draps42. Furthermore when they do publish, they usually denounced torture, and therefore chose to do so anonymously in order to escape repression, and to be able to continue traveling in Algeria without risking a travel ban.

While previous studies have not taken a gendered approach, I discovered that this dimension is essential to understand “legal defense” in the Algerian War. For example, I was able to analyze the strategies used by female lawyers to circumvent gender stereotypes. A number of female lawyers, including Michèle Beauvillard, Jacqueline Jaeger, Cécile Draps, Claudine Lewkowicz-Nahori, Nicole Rein, Nicole Dreyfus, Marie-Claude Radziewsky and Micheline Lombrage-Bouder, adopted the title “avocat”, instead of “avocate” in French, consciously rejecting any feminization of their title. Most of these women were considered as depoliticized and their commitment was often attributed to their empathy or even possible love affairs with FF FLN leaders. Their pleadings were also deemed to be too sentimental. Even though they were constantly subjected to prejudices from judges, colleagues and sometimes even clients, these female lawyers continued to practice “political defense” at a high level even after the Algerian War, unlike most of the men in the legal defense group. 

Last but not least, the FF FLN legal defense group led to legal innovations, three of which are particularly noteworthy. Beyond their anti-colonialist objective, they contributed to changes in legal texts based on practices that impacted the rule of law more broadly. For example, the concept of ” rape as a weapon of war ” (including the rape of men) has since been recognized in international law. In addition, they were also at the forefront of legal changes regarding political asylum in Europe and international law on the criminalization of colonialism.

1I’d like to thank Rebecca Gumbrell-McCormick (Senior Lecturer at University of London), Tsz Yan Ho and Anita Kirpalani for their proofreading and advice.

2R. Badinter, “Le procès de la défense”, L’Express, November 16th, 1961, in A. Haroun, La 7e wilaya, La guerre du FLN en France 1954 -1962, Le Seuil, 2012 [1986]. Badinter (1928-2024) was French Minister of Justice from 1981 to 1986.

3J. Ortin, “La défense de rupture est-elle toujours pertinente ?”, Les Cahiers de la Justice, 2021/2.

4J.-M. Théolleyre, Ces procès qui ébranlèrent la France, Paris, Grasset, 1966.

5H. Leclerc, La parole et l’action. Itinéraire d’un avocat militant, Paris, Fayard, 2017, p. 96.

R. Easton, “A once powerful weapon: the legacy of notorious French advocate Jacques Verges and his défense de rupture“, Solicitors’ journal, 2013, 157, n°36, p. 38.

“Verges’ death on 15 August brought to an end one of the 20th and 21st centuries’ most infamous legal lives. But is his bequest to law – the défense de rupture – a powerful weapon in lawfare or merely a damp squib? Can political trials still be fought by accusing one’s accusers?”

6V. Nioré, “J’interviens de manière ferme au nom de la défense”, Les Petites Affiches, n°75, 4/15/ 2021.

7F. Saint-Pierre, “Il faut engager un grand chantier de modernisation de la procédure pénale”, Gazette du Palais, n°28, 7/25/2017.

8S. Thénault, Une drôle de justice : les magistrats dans la guerre d’Algérie, Paris, La Découverte, 2001, 347 p.

9J.-P. Royer et al., Histoire de la justice en France : du XVIIIe siècle à nos jours, Paris, PUF, 2010 [1995], p. 1059.

10V. Codaccioni, Punir les opposants : PCF et procès politiques, 1947-1962, Paris, CNRS, 2013, 423 p.

11J. Danet, “Sur la notion de défense de rupture : Willard, Vergès, et après ?”, Histoire de la justice, 2017/1, n°27, pp. 177-192.

12J. Ortin, Le militantisme dans la profession d’avocat, thèse en sociologie du droit, Université de Paris II, 573 p.

13M. Djema, La défense de rupture, mémoire en droit, Université de Paris II, 2012, 118 p.

14A. Kralfa, La profession d’avocat en Algérie coloniale (1830-1962), thèse en Histoire du droit, Université de Bordeaux, 2016, 483 p ; see also C. Phéline, Les avocats “indigènes” dans l’Alger coloniale : de l’accès à la profession aux défis de l’indépendance, Paris, Riveneuve, 2015, 222 p.

15M. El Korso, Les Robes noires au Front : entre engagement et “art judiciaire”, Alger, Les Amis d’Abdelhamid Benzine, 2012, 184 p.

16Study day “Let’s open the file: the heritage dimension and scientific interest of lawyers’ archives”, 10/9/2023.

19P.-E. Babin, “Les avocates du FLN : une approche genrée”, Clio@Themis, n°25, 2023. On line  : https://doi.org/10.4000/cliothemis.4049, consulted in 2024.

20V. Nioré, op. cit.

21S. Thénault, op. cit., pp. 434-435, “Un sujet qui mériterait d’être repris, ouvrant une piste à des recherches futures. Il semble que la métropole ait connu une situation contrastée : à la fois espace de répression solidaire du pouvoir en guerre et siège d’une avant-garde contestatrice”(A subject that deserves to be revisited, opening the way for future research. It seems that Metropolitan France experienced a contrasting situation: it was both a space of repression in solidarity with the warring powers and the seat of a protesting avant-garde) ; see also : S. Thénault, “Défendre les nationalistes algériens en lutte pour l’indépendance. La “défense de rupture” en question”, Le Mouvement Social, 2012/3, n°240, pp. 21-135 and S. Thénault, “Une défense politique sans rupture ? Le collectif des avocats du FLN en pratique”, Matériaux pour l’histoire de notre temps, 2015/1, n°115- 116, pp. 17-25.

22L’accès aux archives “secret-défense” doit être possible sans procédure préalable une fois expirés les délais légaux de non-communication, décision du 2 juillet 2021. On line : https://www.conseiletat.fr/fr/arianeweb/CE/decision/2021-07-02/444865, consulted in 2023.

23Arrêté du 22 décembre 2021 portant ouverture d’archives relatives à la guerre d’Algérie. On line : https://www.legifrance.gouv.fr/eli/arrete/2021/12/22/MICC2136715A/jo/texte, JORF n°0298, 12/23/2021, consulted in 2023.

24M. André, “L’accès aux documents liés à la guerre d’Algérie est toujours aussi difficile”, Le Monde, 11/14/2022.

This situation has still not been resolved, as the struggle of this historian specializing in the Algerian War proves.

L’Humanité, “Archives. Marc André : le dépôt central des archives de la justice militaire doit rouvrir”, 12/13/2021.

Le Point, “Accès aux archives des “mineurs” : ce qu’en pensent les historiens algériens et français”, 8/29/2023.

Le Pèlerin, “Guerre d’Algérie : “Ouvrir les archives permet d’éviter de croire qu’on nous cache des choses “, explique l’historien Marc André”, 10/4/2023.

26Budget général programme 105, rapports annuels de performances annexés au projet de loi de règlement du budget et d’approbation des comptes pour l’Action de la France en Europe et dans le monde, p. 63. On line: file:///C:/Users/paul/Downloads/FR_2022_PLR_BG_PGM_105.pdf, consulted in 2023.

The archives of the French embassy in Brussels and several consulates (Charleroi, Mons, Courtrai, Ghent, Namur) are inaccessible.

27On the subject of legal deadlines, see the website: https://francearchives.gouv.fr/fr/article/26287562, consulted in 2024.

28Study day “Let’s open the file…”, op. cit. At the conference, a disagreement emerges between Basile Ader, lawyer and curator of the Musée du Barreau de Paris, and several historians (in particular Liora Israël). When faced with historians, the lawyer totally opposes the violation of confidentiality between lawyer and client, whereas during political trials, and under certain conditions, his colleague Jean-Yves Halimi speaks in favor of greater flexibility regarding professional ethics.

29Interview with one of the members of the Paris legal defense group of the FLN conducted on 9/13/ 2023.

30Interview with one of the women members of the Paris legal defense group of the FLN conducted on 10/2/2018.

31A. Sarat et S. Scheingold, Cause lawyers and social movements, Stanford, Stanford Law and Politics, 2006, 341 p.

32M. Terretta, “Cause lawyering et anticolonialisme : activisme politique et État de droit dans l’Afrique française, 1946-1960”, Politique africaine, 2015/2, n°138, pp. 25-48.

33L. Israël, À la gauche du droit : mobilisations politiques du droit et de la justice en France (1968-1981), Paris, EHESS, 2020, 346 p.

34M. Malatesta, L. Israël, “Défendre l’ennemi public”, Le Mouvement Social, n°240, 2012.

35A. Brodiez-Dolino, Le Secours populaire français, 1945-2000 : du communisme à l’humanitaire, Paris, Les Presses de Sciences-po, 2006, 365 p.

36M. Bellot-Gurlet, ” Plaise à la cour”, Les stratégies de défense des prisonniers politiques upécistes face à la justice coloniale (1955-1960), mémoire en Histoire, Université de Lyon, 2022, 177 p.

37On peut avoir la double casquette d’avocat et de militant : les propos du bâtonnier de Paris interpellent la profession”, France-Info, on line: https://www.francetvinfo.fr/economie/emploi/metiers/droit-et-justice/on-peut-avoir-la-double-casquette-d-avocat-et-de-militant-les-propos-du-batonnier-de-paris-interpellent-la-profession_3832525.html, 2/19/2020.

The article specifies that “Olivier Cousi a tenu à dissiper toute ambiguïté. Il concède que les avocats peuvent évidemment faire preuve d’engagement et doivent pouvoir exprimer leurs convictions en toute liberté. Ajoutant : notre déontologie doit cependant nous guider en toutes circonstances“.

39P.-E. Babin, “Les avocates du FLN…”, op. cit.

40Gisèle Halimi has written a book and some articles in Les Temps Modernes, but she is not part of this legal defense group. G. Halimi, S. De Beauvoir, Djamila Boupacha, Paris, Gallimard, 1962, 280 p.

41A. Benabdallah, M. Courrégé, M. Oussedik, J. Vergès, M. Zavrian, La Défense politique, Paris, Maspero, 1961, 114 p.

42M. De Kock, S. Moureaux, A. Merchie, M. Oussedik, Les extraditions d’Algériens ou le chemin de la guillotine, Bruxelles, S. Moureaux, 1960, 96 p.

On the activities of the Belgian legal defense group and its press office, see the following article : P.-E. Babin, “L’avocat belge Marc De Kock ou la juridicisation du combat algérien”, AMAROM, n°1, 2021, pp. 16-26. On line : https://amarom.hypotheses.org/files/2021/02/Archives-et-Recherche-Amarom_VF.pdf.


L’Aurore, 1961, Jacques Vergès, Michel Zavrian, Michèle Beauvillard, Mourad Oussedik, Abdessamad Benabdallah. ©P-E Babin (reproduction subject to authorization).

Omar Boudaoud (leader of FF FLN), Cécile Draps, Serge Moureaux, Jacques Vergès, 2006. © fonds P-E Babin, (reproduction subject to authorization).


Citer ce billet
paulemmanuelbabin (2024, 29 avril). Research perspectives on lawyers during the Algerian war. Consoli. Consulté le 22 juin 2024, à l’adresse https://consoli.hypotheses.org/1402

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