Every time we refer to recently deceased lawyer Jacques Vergès, it seems like some discursive precautions need to be taken. This is likely to be because commentators stop at the name of his clients (Klaus Barbie, Slobodan Milošević, Carlos, etc.) without listening to Vergès’s plea that significantly complexities these defenses. What he calls himself “rupture defense” or “rupture strategy” is not really a defense; quite on the contrary, it is an offensive against the very principles that set the prosecution. The trial of Djamila Bouhired in 1957 is particularly illustrative of this strategy.
Bouhired was a member of the Algerian FLN (National Liberation Front); during her trial, she was convicted to have put a bomb in a cafe in Algiers that triggered the death of 11 French colons. She was not the first one to be judged for similar crimes referred by the colonizers as “terrorism.” Most of the lawyers who were pleading for accused Algerians were French leftists who were trying to attenuate the circumstances of their client’s crime to the colonial court; a sort of negotiation that proved not to be efficient. Vergès, when he undertook Bouhired’s defense however, used this “rupture strategy”: Such a strategy consists in accepting rigorously the description of facts that the colonial prosecution deploys, embracing the absence of attenuating circumstances to the crime, and furthermore, to affirm that the accused does not regret her or his crime and would be eager to commit more if given the opportunity.
The point of rupture consists precisely in the categorical refusal to recognize the legitimacy of the court itself, as well as the larger authority it represents. In the case of colonial Algeria, this means denying the right for a French court to judge Algerians, and rather than defending the position of Bouhired, to attack colonialism itself. Vergès, who is particularly fond of the literary genre offered by tragedy as we will see later, regularly tells the story of Bouhired bursting in laughter when receiving her condemnation to death — she is finally pardoned and liberated in 1962 — and the judge reacting to this laughter by telling her: “Don’t laugh Miss, this is serious!” The laughter is the most dramatic evidence of the impossibility of a dialogue between the accuser and the accused. As Henri Bergson wrote in Laughter: An Essay on the Meaning of the Comic (1900), laughter is essentially functions on a discrepancy. In this case, the discrepancy consists in what both parties recognize as legitimate authority; the surprised outrage of the judge symptomazing his absolute impossibility to understand the first thing about Bouhired’s position.
Vergès often refers to Antigone (see this 2009 lecture for example) as paradigmatic of his interpretation of justice — the comparison with tragedy being admittedly a way to dramatize his own role. In the past, I have distinguished two types of crimes (see past article) that I can briefly summarize as the selfish crime (murdering someone for one’s own interest for example) and the crime against the law itself (like in the case of Rosa Park sitting in the white section of the Montgomery bus); Antigone, however offers a third type: the necessary crime. Such a crime is not a crime against the law itself but, rather, a crime that is characterized by the impossibility of its perpetrator not to commit it, and therefore also by the acceptance of its consequences. Antigone cannot not bury her brother Polynice after he was killed by the ruler himself, her other brother King Creon. The latter who had forbid anyone to bury Polynice, judges Antigone and condemns her to death. She does not try to defend herself; on the contrary, she attacks the legitimacy of Creon to have issued such an unjust order.
Bouhired and Antigone’s stories carry similitudes indeed. Their trials do not have for subject their crime, but rather, they investigate and debate the very rationale of the system (colonial for Bouhired, despotic for Antigone) of which the court is fully part. What Vergès noticed with Bouhired’s trial and the rest of cases he took in his life, is that the dramatization of the court simultaneously affirms a legitimacy and offers the conditions for it to be contested. There can be what is commonly called “simulacrum of justice” only if all parties involved in this dramatization take the parts that they are being attributed. The rupture evoked by Vergès precisely consists in refusing this role and returning the spotlight that a court has meticulously constructed against it.