Jacques Vergès, who died in Paris on 16th August, may have been the most extraordinary lawyer of our time. He was candid about his “passionate interest in evil” and forged a career representing some of the most high-profile criminals of the past 50 years: Carlos The Jackal, Magdalena Kopp of the German Baader-Meinhof gang, and the Khmer Rouge head of state Khieu Samphan, to name only three. Vergès also sought to represent Saddam Hussein and Slobodan Milosevic.
“The interesting thing about my clients is discovering what brings them to do these horrific things,” he told Der Spiegel in 2008. “My ambition is to illuminate the path that led them to commit these acts. A good trial is like a Shakespeare play, a work of art.”
When Osama bin Laden was killed by US Navy Seals in Pakistan in May 2011, I thought of Vergès. Sure enough, he had offered to represent bin Laden too; but he had also offered to defend George W Bush, should the need arise. In the 1960s, Vergès had been the first lawyer to represent the Palestinian fedayeens; then, in the 1990s, he told the LA Times that he would like to be counsel to Israeli Prime Minister Yitzhak Rabin. As a young man, Vergès had participated in riotous demonstrations following the assassination of Congolese independence leader Patrice Lumumba; as a lawyer, he took on as a client Lumumba’s alleged assassin, the Congolese politician Moise Tschombé. None of it made any sense to me, so, a few months after Bin Laden’s death, I travelled to Paris to talk to Vergès about justice and evil.
“For me, the subject of a lawsuit is the same thing as the subject of a novel or a tragedy,” Vergès explained. “These interest us because the hero challenges the world order of things. A lawsuit has the same content as a novel or a tragedy—the only difference is that a lawsuit changes with a real situation.As a lawyer, when a person comes to you, they are in a crisis. The judge and the jury don’t know the person accused—and can’t get to know him either. The way that the questioning proceeds in a trial, the client can only answer ‘Yes’ or ‘No’—‘Did you know that you were overdrawn at the bank?’; and so on.” Vergès shook his head impatiently and drew deeply on his cigar. “But a lawyer can speak on behalf of the client in his crisis. And so the lawsuit can give birth to a character, like a novel or a tragedy.”
“It’s a fascinating thought,” says Peter Lamarque, Professor of Philosophy at the University of York. “Lawyers and novelists are both in the business of developing characters and eliciting emotions. And the summing of a lawyer at the end of a trial is like the end of a novel. It’s a striking parallel.”
Nonetheless, Lamarque has reservations about the conflation of art and fiction: “A factual, non-fiction narrative, like a well-made documentary, can be a work of art. But it’s still important to hold onto the distinction between fiction and factual narrative,” he insists. “A novelist’s fictional narrative is only answerable to its effects or to the pleasure it gives. By contrast, a lawyer’s narrative, however accomplished or compelling it is, and however like a novel, must be constrained by facts and the attempt to establish the facts. When we treat human beings as characters in a novel, we are in danger of aestheticising their actions—distorting the underlying truth to create an explanation of their action that is convenient for a particular story.”
Lamarque’s point about court-room narratives being works of art but not works of fiction also applies to the prosecution narrative in the trials of some of Vergès’s clients. There is a danger we can be deceived into thinking these are factual, when they might be mostly fiction and just a convenient story. “If we say someone is a monster, that’s absurd,” Vergès told me. “And if we say someone must be punished straight away, that’s absurd. Even the worst criminal is a human being, and that’s what’s fascinating. When a lion kills and eats three children, we are upset for the parents but we don’t ask any metaphysical questions. But when a neighbour kills and eats the three children—that frightens us. I am not against punishment or even capital punishment. But you cannot judge the depths by spitting into them. That’s like lynching someone.”
I put this to Victor Kappeler, Professor of Criminology and Associate Dean at Eastern Kentucky University. “‘Jackal’, ‘butcher’, ‘monster’ – these are metaphors,” agreed Kappeler. “They’re just a convenient way of emphasizing certain things about a person, in this case a ‘less than human’ nature. When we call someone a monster or an animal, it gives us an excuse for not trying to understand their motives or their grievances or their context.”
Kappeler explained that describing opponents in ways that denied their humanity also had the effect of downplaying or justifying our own treatment of them: “We negotiate with political adversaries, and citizens are extended rights and due process,” Kappeler said. “But brutes and monsters can be arrested without probable cause, and can be subject to illegal detention and summary execution. ‘After all, they are animals, who will stop at nothing to hurt us, and must be dealt with accordingly.’”
Vergès seemed to believe that denying the humanity of unsavoury individuals is simply a way of avoiding having to face up to the reality of human behaviour. “I’m just interested in what’s human,” Vergès said. “And humanity is frightening. For example, if you read Dostoevsky’s novels, the heroes are all terrible people. But his work speaks to us very deeply.”
So was a “beautiful” trial for him one that contradicts expectations, in which the jury are able to put themselves in the place of the accused?
“Yes. Because at that point the members of the jury have entered the depths of the human heart. It’s the same as reading a Dostoevsky novel—for example, The Possessed; you read it, and you think ‘Yes. That’s me.’”
Like Vergès, Tamar Szabo Gendler, Professor of Philosophy and Cognitive Science at Yale, believes that art can help us better understand reality. “Narratives are brilliant for getting people to recognise that they might be seeing a situation wrongly,” she says. “Think about what happened with King David and Bathsheba—David wanted another man’s wife for himself, so he used his power as King to send her husband off to war to be killed there. The way David is brought to insight is when he is told a parable about a wealthy man taking a lamb from a poor man: David says, ‘oh, that’s a terrible thing to do!”—and then realises that the story is really about him.”
Gendler argues that narratives can often be uniquely effective at helping us understand moral truths: “Sometimes art can achieve what rational argument cannot—because imagination gets in under the radar. One reason that Uncle Tom’s Cabin was able to illuminate the humanity of Afro-American slaves was because it got behind the defence mechanisms of white Americans who were otherwise unwilling to acknowledge the reality of the situation.”
It is this radical and transformative power of art that Vergès saw as his aim in the court-room – over and above the legal questions we might think a trial should be about. “Justice is not a chewing-gum machine - ‘you’ve stolen a chicken, press the button, one month in prison.’ Justice asks us questions about ourselves, and that can only happen through a work of art.”
But unlike a work of fiction, surely a trial is about real people and has direct consequences for real people?
“That,” said Vergès, “is why a trial is superior to fiction.”
Because of its power?
“No, because of its reality. Francis of Assisi said that what is true is more beautiful and splendid than any fiction.” Vergès told me a story about how, as a young man in the 1940s, he had represented women accused by the state of having abortions—then illegal in France. “But now abortion is paid for by the government. Society is not stable, it evolves. A society which is static is condemned to death. A true trial helps society to progress.”
This idea of transferring the focus of a trial to the rest of society made me uncomfortable. But Philip Zimbardo, Emeritus Professor of Psychology at Stanford University, who acted as an expert witness in the 2004 trial of one of the prison guards in the Abu Ghraib prison scandal, echoed Vergès’s wider concerns. “Perhaps the biggest part of ‘evil’ doesn’t go on trial—the evil of bystanders,” Zimbardo says. “You look the other way, you don’t want to get involved, you hope things will get better. And the truth is that widespread evil would not exist if it were not for bystanders.”In 1971, Zimbardo ran the now notorious Stanford Prison Experiment, in which ordinary people were recruited to take part in a role-playing exercise that rapidly degenerated into sadism, torture, hunger strikes and mental breakdowns among participants. “What was interesting,” he recalls, “was that we deliberately chose normal, healthy, intelligent, well-balanced people but it became a hell very quickly. ‘Evil’ happens because we have an infinite capacity to deceive ourselves and to justify and rationalise our own behaviour. No one thinks that they are part of a cult, for example —they think that they are part of a family. In the same way, no one thinks of themselves as ‘evil’: we tell ourselves that whatever we’re doing is necessary, that whatever is happening is unavoidable. The evil of inaction is greater than the evil of action because it is more pervasive and less accountable—the look-away people, who never get tried.”
Reporting on the trial of the Nazi war criminal and architect of the Final Solution Adolf Eichmann, the German-Jewish philosopher Hannah Arendt observed that Eichmann may not have realised the scale of the horror he was helping to organise because there were far more participants and bystanders than resistors. During the trial, witnesses were asked whether the Jews had received any help. One witness explained that since anyone who resisted the Nazis would “disappear in silent anonymity,” it would have been “practically useless” to try. Arendt disagreed: “It is true that totalitarian domination tried to establish these holes of oblivion into which all deeds, good and evil, would disappear,” she wrote. “[But] the holes of oblivion do not exist … [N]othing can ever be ‘practically useless,’ at least not in the long run. It would be of great practical usefulness for Germany today, not merely for her prestige abroad but for her sadly confused inner condition, if there were more such stories to be told.”
Eichmann’s legal fees were paid by Francois Genoud, a Swiss Nazi and financier believed to be the banker to Hitler’s henchmen. Later, when Vergès represented Nazi war criminal Klaus Barbie, Genoud was reported to have paid Vergès’s legal fees too. Vergès had spent the Second World War as a volunteer in the Free France army, fighting the Nazis under the command of Charles de Gaulle. But his willingness to represent Barbie in court, and his flamboyant cultivation of the world’s most unpopular political villains, seemed to suggest a disturbing sympathy for the devil.Vergès’s death this year coincided with the 50th anniversary of the publication of Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil, a book that caused enormous controversy since Arendt refused to demonise Eichmann, but rather depicted him as a very ordinary human. How much have we learned since then about the nature of evil? If Vergès is right, then in a trial the accused is not the only person under scrutiny. Perhaps a trial, like a work of art, prompts us to ask difficult questions about ourselves.
Interview with Jacques Vergès interpreted by Judith Ann Robertson, interpreter / translator
