Defending the propriety of torture a crime in France?

[Mark Tushnet]

A few points on the French prosecution:

1.  Procedurally, the mechanisms for challenging the constitutionality
of statutes like the "no war propaganda" statute here are quite limited
in France, and -- with respect to the internal French legal system --
are probably unavailable here.  (Incidentally, Eugene says that the
publisher is being prosecuted, but -- unless I'm misreading what he's
quoted to us -- the story doesn't say that.)

2.  But it's possible that a convicted defendant could raise a freedom
of expression claim in the European Court of Human Rights.  That Court
would apply freedom of expression principles with a "margin of
appreciation," one aspect of which entails some deference to the
particular historical circumstances of individual nations, a matter that
would seem to me relevant with respect to France and the Algerian War
(and that has some resonances in defenses offered on parallel threads
for actions currently being taken in the United States with respect to
persons suspected of association with terrorism).

3.  More generally, I doubt that anyone who defended either the
"European" approach to free expression or the American one would place
much weight on any individual case.  Egregious outcomes can occur under
either what I take to be the American absolutist/formalist approach or
under what I take to be the "European" flexible/balancing approach.
(People will of course disagree over what *is* an egregious outcome, but
I for one would not think highly of someone who claimed that *every*
outcome under either "European" or U.S. law was entirely reasonable.  To
put it somewhat snidely, judicial opinions are government programs, and
no government programs operate perfectly.) I would have thought that the
right question was whether the net (good minus bad) of the outcomes was
greater under one or the other approach.

----- Original Message -----
From: Eugene Volokh <volokh at mail.law.ucla.edu>
Date: Thursday, November 29, 2001 5:04 pm
Subject: Defending the propriety of torture a crime in France?

> Here's an interesting incident that might bear on claims that the
> Europeanapproach to
> free speech is more reasonable than the more absolutist U.S. approach.
>
> Aussaresses may in fact be a really bad guy because of what he did in
> Algeria.  But note that his *publishers* are on trial as well --
> and anyone
> else who says
> the things he said could be, too.
>
> I think there are a lot of very good arguments against torture;
> but can a
> democratic
> nation really discuss these arguments, even to become more
> persuaded by
> them, if it's a
> crime to make arguments in the other direction?
>
> (I am indebted to slate.com's "Idea of the Day" column for
> alerting me to
> this
> story.)
>
>
>
> Suzanne Daley, N.Y. Times, Nov. 29, 2001:
>
> The trial of a former French general who has admitted torturing and
> executing
> dozens of Algerians during France's brutal colonial war ended here
> todaywith
> prosecutors seeking a $15,000 fine, rather than imprisonment, if
> the general
> is found
> guilty.
>
> Gen. Paul  Aussaresses,  83, was on trial not for the acts
> themselves, which
> have
> long been covered by an amnesty, but for telling his unapologetic
> version of
> events in a
> book. . . .
>
> [P]rosecutors, using a rarely invoked law, have charged him with
> the crime
> of
> trying to justify war.  If convicted, General  Aussaresses  could
> face up to
> five years in
> prison and a fine of about $40,000.  But at the end of the three-
> day trial
> today,
> prosecutors asked that only a 15,000 fine be imposed if the
> general was
> found guilty.  A
> verdict is expected on Jan. 25.
>
> General  Aussaresses'  cold-blooded account of how he summarily
> executed 24
> men and supervised the torture of dozens of others was published
> in May and
> immediately caused an uproar in France, where more and more, the
> mood leans
> toward
> atonement for the brutality of the Algerian war of independence. .
> . .
>
> During the trial the prosecution singled out 19 passages from the
> general'smemoir, "Services Speciaux Algerie 1955-1957," to justify
> the charge against
> him.
>
> "The best way to make a terrorist talk when he refused to say what
> he knew
> was
> to torture him," the general wrote in one passage.  In another he
> said of
> the hundreds of
> executions he ordered:  "I was indifferent.  They had to be
> killed, that's
> all there was to
> it." . . .
>
>
>