Case in point | A once powerful weapon

Most client-lawyer relationships are best summed up by Mr Schultz in Billy Bathgate: 'I could tell you a lot about the law'¦we got a man to argue for me tomorrow who wouldn't have me to dinner in his house.'

Notorious French advocate to (almost) indefensible defendants Jacques Vergès not only appeared happy to dine with his clients '“ who ranged from Nazis butcher of Lyon Klaus Barbie and Carlos the Jackal to Pol Pot '“ he also married one, the Algerian terrorist/freedom fighter Djamila Bouhired. Vergès' 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?

Vergès pioneered the défense de rupture during the trial of Front de Libération National (FLN) member (and his future wife) Djamila Bouhired who had been charged with planting a bomb in a café in Algiers's European quarter in 1956 during Algeria's anti-colonial struggle towards nationhood.

Instead of defending Bouhired by chipping away at the evidence or through a canny plea in mitigation, Vergès launched an assault on the court itself. Vergès refused to acknowledge that the alleged civilian bombing could be a criminal offence and accused the court of being part of a state apparatus that permitted the French army's corvée de bois ('woodcutting duties'), the then euphemism for the torture and summary execution of Algerians.

Radical contestation

By demonstrating the contradictions within a judicial system happy to punish Algerians for meeting violent colonial repression with violence, Vergès's courtroom strategy, in the words of the father of deconstructionism Derrida, was a 'radical contestation of the given order of the law, of judicial authority and ultimately of the legitimate authority of the state that summons his clients to appear before the law'. He refused to engage in a défense de connivance ('a defence of collaboration'), Vergès's term for a conventional defence that acknowledges the legal framework of a trial and engages with the factual and legal issues that could arise during a trial. His défense de rupture was an attempt to breach the court's fabric of legitimacy, causing a trial to (morally) implode.

The rupture strategy was an abject failure in strictly legal terms. Bouhired was convicted and sentenced to death. However, Vergès saw that her trial should not be a 'play for sympathy as left-wing lawyers advised'¦ from the murderous fools who judged us' but a 'taunt' that would 'provoke incidents that would reach people in Paris, London, Brussels and Cairo'. Bouhired's trial, though a legal success for the French state (the defendant was convicted), was an international embarrassment as worldwide opinion turned against France's actions in Algeria. Bouhired's death sentence was later commuted to a term of imprisonment; her release was ordered in 1962.

Vergès attempted to systematise the défense de rupture for more general use in his 1968 work 'De La Stratégie Judiciaire'. Whether attempts to rupture political trials outside of the polarised world of colonial Algeria could be successful, however, was severely tested when Vergès defended Klaus Barbie in 1987. Rather than focus exclusively on the evidence that Barbie had killed and tortured prisoners, Vergès railed against France's colonial legacy. His j'accuse against Bouhired's accusers was a sonorous jeremiad; Vergès's attack on Barbie's prosecutors was a shrill hiss that convinced few.

Unique historical setting

The Barbie defence showed that perhaps Vergès's défense de rupture had reached its limits. Before his death in 1984, French philosopher Michel Foucault had attempted to determine whether Vergès's strategy could be applied generally to politicised trials. Foucault feared that the défense de rupture was too bound up with the unique historical setting of Algeria's War of Independence. And Foucault was right. The Barbie trial showed the défense de rupture to be simply a theatrical rehashing of the ancient tu quoque ('you too') argument.

The tu quoque barb was thrown by the defendants at Nuremberg to little effect: alleged allied war crimes could not be a defence to the Nazis crimes against humanity. Tu quoque was also cried out in the International Criminal Tribunal for the former Yugoslavia (ICTY). In Prosecutor v Kupreskic, IT-95-16-T (ICTY Trials Ch. II, 14 Jan. 2000), the ICTY unequivocally rejected the legitimacy of tu quoque defences in international humanitarian law. Vergès's rupture, like its tu quoque forebear, became merely a disruption, typified now by the antics of Vojislav Å eÅ¡elj whose trial continues before the ICTY despite six years of his contemptuous cajoling. Countering accusations of inciting ethnic violence in the Balkans, Å eÅ¡elj argued that inflammatory speech was common in political rhetoric and quoted one of his favourite songs: 'Citizens, take up your arms! Form your battalions!...?Let the blood of the unclean soak our fields'. 'I'm sure you recognized the verses,' he said to French judge Jean-Claude Antonetti, 'this is the national anthem of France'.

As for Vergès, nicknamed ?le salaud lumineux ('the brilliant bastard'), perhaps it is far duller bastards who now practise ?his defence. SJ

Copyright & permissions