1 Besides by the lawyers Francesco Francioni (IUE Florence), Francesco Maiani (IDHEAP Lausanne) and (...) 1Why it be considered worthwhile to bring jurists and historians together in order to reflect on the notion of persecution? I should like to outline briefly how the project of organising this workshop was born. I initially envisaged preparing an interdisciplinary encounter on my research topic as Fernand Braudel fellow, namely on persecution and clandestinity, where my prime interest was clandestinity, by definition an illegal practice, but which is capable of acquiring a political, ethical and even juridical justification, especially in situations of persecution.

2 René Girard, The Scapegoat, Baltimore, The Johns Hopkins University Press, 1986. 2However, very soon after reading and discussing the subject with the people mentioned in the first footnote, I realised that the notion of persecution itself, in itself, was problematic for a number of reasons, and that the main problem was precisely that it is always, or nearly always, held to be clear and obvious, as though it somehow imposed itself, dispensing with the need for definition and elucidation, as though there were some kind of indecency and obscenity in undertaking its examination. Even demanding thinkers such as Boethius, Pierre Bayle, Rousseau, Voltaire, and more recently Leo Strauss, who all used the notion abundantly, did so without prior elucidation (see for example Bayle’s Commentaire Philosophique, Voltaire’s Dictionnaire philosophique, Leo Strauss’s Persecution and the Art of Writing). Now, the notion of persecution does not express, it seems to me, an anthropological invariable. I stress here the notion, not the thing to which the word “persecution” is applied; the latter, when considered, following René Girard, as murderous violence by which a dominant group resolves the crisis affecting it by taking issue with a minority group – i.e. the logic of the scapegoat – is perhaps inherent in human society (which itself remains to be demonstrated), and at the same time as he names and describes the ill, René Girard finds in Christianity the remedy, which is wonderful, yet nothing obliges us of course to follow him, for his position supposes, presupposes the fundamental truth Christianity offers us concerning human violence and the manner in which it thinks of and names persecution.

3But, if we choose to leave to one side the reality of persecution, should that even prove to be possible, we can see that the notion itself has in effect a history, which can be called Judaeo-Christian, and it is quite possible that despite appearances it has considerably changed in meaning in the course of its long history; while, from the Acts of the Apostles to the most contemporary texts (for ex. those of Girard or those of international penal law), we could be forgiven the impression that we are talking about exactly the same thing. To a certain extent, I subscribe to this, but it is necessary, if we do not want to fall into apologetics as Girard does, to envisage a historical and contextualised approach to the notion. Precisely, one of the aims of this conference is to give an outline of this history, to set out a few indicators, from Roman times to the present, given that there is a contemporary pertinence to persecution, not only regarding phenomena of persecution, but regarding the notion, its usages and its practical effects. The present relevance is underlined by a decisive event worthy of analysis and reflection: persecution has become a full-blown juridical notion, which, as far as I know, it had never been until now, i.e. a notion of international penal law (persecution as a “crime against humanity”); hence the desire to bring together historians and jurists working in the field of human rights. For if the notion is relevant today, that relevance is to be sought primarily, it seems to me, in the field of law, which does not, of course, exclude it from being mobilised in the most varied of discourses, common-or-garden(as in the case of journalism) or specialist, for one continues to use it abundantly, in moral theology, for example, or in moral philosophy, as well as in the social sciences, where it crops up in the titles of numerous works, rarely if ever being the object of the slightest analysis.

4Clearly, I do not propose here to launch into a detailed history of the notion. It would, moreover, be beyond me, yet I would like merely to set out a few indicators to be discussed, replaced, or questioned by contributors. Regarding the genesis of this history, I would only say that what I think the most important, namely that Christians and Jews, apparently in similar concepts and more or less at the same time have developed two basic ideas for the western history: first the idea that a perfectly legal form of violence may be thought of as unjust and scandalous, which obviously assumes the affirmation of the existence of a superior justice, one which is above all independent of positive law, and then the idea that the violence suffered for justice, far from being shameful, is glorious for the victims. One of the seminal texts in this respect is without doubt the verse in the Gospel according to Matthew, in the Sermon on the Mount which reads:

3 Yann Rivière gave us a very fine analysis of the concept of diogmos which is to be published soon. (...) Blessed are they which are persecuted [  ] for righteousness’ sake: for theirs is the kingdom of heaven.

What is essential here is the condition imposed in the transposal of the infamy and earthly suffering of persecution into the glory of celestial salvation: (this condition is) the fact of being persecuted for righteousness’ and truth’s sake. It is in this sense that St. Augustine in his Confessions takes up the famous phrase of Terence: veritas odium parit (truth begets hatred). In other words, persecution does not serve as justification for Christians alone. This exclusivist definition clearly leaves the door wide open for the idea that there can exist a good kind of persecution; that which is developed by St. Augustine, among others, in his famous letter 185 to the prefect Boniface against the Donatists, and which counters the argument according to which persecution in itself, as such, is the criterion of the true Church, the instrument of justification:

[...] there is a persecution of unrighteousness, which the impious inflict upon the Church of Christ ; and there is a righteous persecution, which the Church of Christ inflicts upon the impious.

There is, therefore, just persecution, persecution which the Just are called on to carry out on the impious and the wicked, following on from the evangelical injunction: “compelle intrare”; “constrain them to enter” (Luke, chap. XIV, verse 23). Pascal, in the xviith century, again quotes in his Provinciales an extract from letter 91 by St. Augustine:

The wicked in persecuting the good blindly follow the dictates of their passion; but the good, in their persecution of the wicked, are guided by a wise discretion, even as the surgeon warily considers where he is cutting, while the murderer cares not where he strikes.

There is a good and just persecution, of the Donatists, for example, just as for Pascal there should be a just repression by the civil and ecclesiastical authorities of the Society of Jesus which persecutes the Jansenists. This is the underlying schema of the thinking behind persecution throughout the history of Christianity, at least, up until the modern epoch; I emphasise underlying because – and this is a very important point – “just persecution”, despite St. Augustine, is only rarely acknowledged as such ; the term persecution is confined to violence, in all its possible forms, exerted against the true Church (such that constantly, those whom the Church pursues for heresy and impiety are called “persecutors” and not “persecuted”). Such that any real persecution, any persecution worthy of the name, can only be unjust, and indeed this is the way in which we think of persecution today. This is or was, it seems to me, the Christian approach to the notion.

5Clearly, we have to be able to produce comparisons with the manner in which unjust political and legal violence is or is not denounced, in the pre-Christian era or in ancient Greece, for example, or in ancient China, but also in the Hebraic world, which no doubt has a specific manner of approaching the question of persecution, and questions arise over Sunnite or Shiite Islam, as indeed over yet other cultural traditions (for exemple in Rom and Sinti culture, facing a recurrent experience of persecution).

4 “Have you ever thought, my dear pupil,” she answered me, “that I could abandon you in your tribula (...) 6What I would like simply to point out in passing is that the Christian conception seems to have profoundly influenced the way in which philosophy, whether Christian or not, thinks of its own history, as a history where persecution plays a fundamental role, at least from Boethius onwards (who, moreover, was very probably not Christian, contrary to what has been said on the subject). In the exchange of dialogue in De Consolatione, Philosophy in person invites herself into his prison and explains to him, among other things, that philosophers cannot but be persecuted, in virtue of their wisdom: “the purity of their mores condemned the perversity of the wicked; that was the sole reason for their persecution”. This is a platonic reinterpretation of Christian persecution, and Boethius moreover makes explicit reference to the end of Socrates, but here again, the cause attributed to persecution is truth and justice; not the truth of religion, but that of philosophy, not the justice of the true Christians, but the moral purity of the philosophers. In this respect, Leo Strauss, in his essay Persecution and the Art of Writing, as in his other texts, proves to be the direct inheritor of Boethius. The major difference is the idea of constraint in absolute contradiction with that of the adoption of philosophical truth; there is no place in the philosophical tradition, no matter what school it may belong to, for the idea of a “just persecution” for the sake of truth. External constraint can in no way be considered to be a means of acceding to truth. Philosophy can certainly justify in the name of the just order of the Republic for example, any number of forms of coercion and political violence, but there is nothing on the other hand resembling “Compelle intrare “, “Constrain them to enter”, which is to say nothing resembling the violence of conversion, the justice of which was still being defended in the seventeenth century by the ideologues of Louis XIV, in order to justify the persecution of protestants after the revocation of the Edict of Nantes.

5 Robert Challes, Difficultés sur la religion proposées au père Malebranche…, 1711-1712, Droz, 2000, (...)

Robert Challes, Difficultés sur la religion proposées au père Malebranche…, 1711-1712, Droz, 2000, (...) 6 See, for exemple, the polemics between La Harpe and Chaumontquitry. Jean-François La Harpe, Du fa (...) 7It would appear that the philosophical tradition associated with evangelical inspiration is a decisive element in the radical transformation of the understanding of persecution in the modern epoch with authors such as Dirk Coornhert, Sebastian Castellion and, somewhat later, Grotius, John Locke and Pierre Bayle. Henceforth, persecution is no longer conceived of as the exercising of violence, whether legal or not, against those who are the depositaries of truth and who bear witness to it through their very suffering (the model of martyrdom), but persecution becomes the exercising of violence for reasons of conscience, no matter what the content of that conscience be; that is to say that the falseness or error of that conscience can in no way be considered a legitimate reason for the exercising of violence and constraint, such that persecution becomes a violation of fundamental rights (especially those regarding conscience), in regard to citizens who otherwise respect their political obligations. In this way, the notion ceases to be simply a notion belonging to religious discourse and discourse of moral philosophy, becoming imbued with a juridical meaning, for if persecution is the violation of fundamental rights, there cannot be, as a matter of principle, legitimate persecution, including that which is endowed with a legal form. This is the whole argument of Pierre Bayle’s Commentaire philosophique on the compelle intrare based on the notion of “the rights of the erring conscience” (“the conscience which errs has the same rights as that which does not”). But, because of this, up until the Enlightenment and beyond, the notion remains strictly attached and limited to violence endured in the name of the imposition of a truth. As Robert Challes writes: “Persecutors normally pride themselves on possibly the falsest principle imaginable: that those who have truth on their side have the right to constrain those who are in error”. Hence the ironic definition given by baron D’Holbach in his Théologie portative: “Persecutions: the unswerving and charitable means which the Church deploys to bring back those who have strayed and to make itself more amiable in their sight. The Church itself was often persecuted, but always wrongly.” And it is in this perspective that “philosophers” in the Enlightenment sense denounce the persecution inflicted upon them, exactly as anti-revolutionary Catholics denounce the persecution they endure. The connection with the religious, the heterodox, the irreligious thus remains determinant, and it was not until the progressive detachment of political ideologies from confessional questions, and the gradual acknowledgement of the specifically political rights of the citizen (starting with the freedom of expression), that one started talking of the “persecution” of strictly political minorities and dissidences.

8In any case, what is noteworthy is that the idea that one can be persecuted for something other than one’s convictions, for example, for simply belonging to a definite group, for the colour of one’s skin, for one’s ethnos or whatever, is completely absent from the debate. The prior condition for this semantic extension is without doubt the development of racist theories throughout the xixth century.

7 Victor Klemperer, The Language of the Third Reich: A Philologist's Notebook, trans. Martin Brady, (...) 9I should like to take a leap forward to say a little on how persecution is conceived of in Mein Kampf. What is astonishing and to my mind perfectly enlightening in Mein Kampf is that Hitler exploits a victim-oriented rhetoric, according to which his party has known persecution (Verfolgung) only too well, while at the same time trying to find the conditions for an efficient persecution (he uses the term Verfolgung again), quite aside from any moral consideration, in favour of a strategic model regarding the enemy. And for Hitler, efficient persecution is the annihilation of the persecuted. In particular, in chapter 5, he reflects upon what an efficient persecution of marxism should have been and will have to be, and he finds it in the association of a merciless violence which never relaxes its grip through time with an alternative and all-conquering and, as he says, “fanatical” Weltanschauung. Victor Klemperer has analysed at length this inversion of the word “fanatic” from the negative to the positive in the language of the Third Reich and this is more or less what happens to the term Verfolgung in Mein Kampf. At the same time Klemperer notes that the word “fanatic” continues to be used in a negative sense, even in Mein Kampf. This is equally the case for the word Verfolgung which Hitler uses to complain about the wrongs done to the National Socialist Party, but also to describe the vexations endured in the past as in the present by the Jews, except that the sense changes, because persecution in this case is fully justified and always insufficient; his error being, he says, that he considered the Jews to be persecuted for their religion, whereas they are in fact and should be persecuted for their race, because it is the Jewish race (not its religion) which poisons the societies in which it prospers. In this perspective persecution does not seek the goal of any forced conversion, along the lines of religious persecution, but annihilation, pure and simple extermination. In the persecution of marxism as well (which moreover is understood as the expression of Jewry), what should be aimed at is the annihilation, not only of the marxist Weltanchauung, but of flesh-and-blood marxists themselves, Jews for the most part.

10This easily allows us to understand how Hitler and National Socialism imposed in discourse as well as in fact a novel way of thinking of persecution, as a mass crime, whose objective is a targeted human community as such, irrespective of its beliefs, culture, language, etc. The way in which René Girard for example defines persecution in the Scapegoat, as a murderous violence perpetrated on a minority group, necessarily comes after the experience of Nazi extermination. Girard integrates the notion into the framework of an anthropology of the sacred dominated by the notion of expiatory sacrifice which, in my view, does not allow us to take into consideration what Nazism does when it assumes persecution by including it in a methodical, systematic and durable extermination of entire human groups. At the same time, revisiting the genocidal persecution of the Third Reich allows us to conceive of persecution as bringing together the phenomena of legal or illegal violence vis à vis individuals and groups considered in their multiplicity and totality that is to say going far beyond the idea of the persecution of consciences which was at the core of the Christian notion. The proof of this is the way in which the Statute of Rome of the international penal court which met in 1998 uses the notion, without for all that giving a definition, as one of the eleven acts constituting “crimes against humanity”:

[...] persecution of any group or community identifiable for political, racial, national, ethnic, cultural, religious or sexist reasons, or as a result of other criteria universally recognised as admissible in international law(art. VII)

The list of reasons recognised as crimes of persecution conceived of as one of the crimes against humanity is thus considerably extended and remains open. From there on – I speak under the watchful gaze of jurists who will speak this afternoon – a new definition of persecution becomes necessary which is sufficiently broad and precise to allow penal law to operate. As long as “persecution” is wielded to polemical ends or within a discourse of moral sanction, I would say that it behoves us to keep a maximum of latitude and vagueness; something which juridical discourse, because it has a normative value, cannot admit. The international penal court for the former Yugoslavia proposed the following definition in 2002: persecution is “the manifest or flagrant denial, for reasons of discrimination, of a fundamental right consecrated by customary or conventional international law”. No doubt our jurist friends will want to come back to this definition. It seems to me, basically, to be the reformulation and above all the type of setting down in text which is peculiar to law of what seems to me the major gain of the transformation of the notion in modern times: denial or violation of the fundamental rights of groups and individuals. It seems a matter of historical fact that only the establishment of a body of international penal law could properly allow the setting down in text of the crime of persecution in law.

11I would now like to sum up by saying that it would be wrong to set the normative usage of the notion in law against its rhetorical manipulations, by which any individual or group, and even the National Socialist Party hopes to profit from the moral indignation of the public by presenting themselves as persecuted. If that were the case, then researchers in social sciences in their concern for objectivity would have every reason to abandon the notion to professional jurists on one hand and to rhetors on the other; whereas everyone, I think, be they sociologist, political scientist or of course jurists can experience, when working on questions of violence, vexations and injustices encountered by individuals and groups, what is indispensable to the usage of the term and the notion of persecution. This observation no doubt compromises the ideal of axiological neutrality which certain people aspire to in their research, in the sense that using the concept of persecution commits them, whether they like it or not, to taking up an ethical stance in respect to the objects of their study, and it seems to me important to finish by emphasizing this, because it is the very impurity of our sciences which allows us to participate, albeit in a very indirect, biased and fragile manner, in the effective transformation of the rules of life in human society.