Chapter 4. The Legitimation of Colonial Violence

C h a p t e r 4

 

The Legitimation of Colonial Violence

 

The colonial regime owes its legitimacy to force and at no times

tries to hide this aspect of things.

— Frantz Fanon, 1961

 

Colonial Emergency as the Radicalization

of the Colonial Situation

 

The Colonial Situation and the “Normality of Violence”

 

The excessive use of violence was a basic element of colonial expansion and

rule.1 In a letter addressed to the U.S. secretary of state at the end of the nine-

teenth century, the African American journalist and historian George Wash-

ington Williams protested against the rule of the Belgian king Leopold II in

the Congo, calling it a “crime against humanity.”2 Williams thus used this

term long before it made its way into international law during the course of the Nuremberg War Criminal Trials. The regime of Leopold II, which Joseph

Conrad fittingly rendered with the words “the horror! the horror!”3 in his

book Heart of Darkness, transformed the Congo into “one of the major kill-

ing grounds of modern times”4 and became a synonym for the excessive use

of force in the colonies. Yet all of the other colonial regimes also exhibited a

great potential and strong propensity for violence.5 For this reason, the his-

torian Michael Mann characterizes colonial rule as “reign of terror for the

subjugated population.”6

Kenya and Algeria can be cited as characteristic examples of British and

French colonial rule, respectively. Both Colonel Meinertzhagen and General

Legitimation of Colonial Violence 93

 

Bugeaud availed themselves of a radical policy in using force for their colonial

military conquests, euphemistically referred to as “pacification,” in which the

extremely racist attitude toward Africans led not only to the submission and

subjugation of these peoples but also to the annihilation of large segments

of the population.7 The comment of one European settler in East Africa suc-

cinctly reflects this mentality: “I look upon the natives as merely superior

baboons and the sooner they are exterminated the better.”8 Even after the military conquest was over, the threat and use of violence remained key ele-

ments in securing power.

In the words of Aimé Césaire, the Afro- Caribbean poet and founding

member of the Négritude movement, the relationship between colonizer and

the colonized was characterized by the brutal link between domination and

subjugation, “which turn the colonizing man into a classroom monitor, an

army sergeant, a prison guard, a slave driver.”9 Albert Memmi attributed the

privileged position of Europeans over that of the native populations to the protection provided by the police, army, and air force, which were willing

to defend the interests of the colonial rulers at all times.10 For Frantz Fanon,

colonial coexistence was also based on the power of bayonets and canons,11

although he added: “This reign of violence will be the more terrible in pro-

portion to the size of the implementation from the mother country.”12 He

proved to be right, for settlement colonies like Kenya and Algeria were indeed

the places where the bloodiest confrontations of decolonization occurred.13

One reason for this lay in the sense of besiegement felt by the white set-tlers, who as a minority perceived the superior numbers of the indigenous

population as a constant threat and permanent danger. The almost paranoid

fear of an African revolt influenced the colonial settlement society in a last-

ing way and brought about a type of militarism in the behavior of the white

population.14 Thus, the colonial state found itself on permanent alert to de-

fend its own position of power the only way it was believed could guarantee

success, namely through the use of draconian measures.15 In the view of an

East African settler, the African only understood the language of force: “His primitive mind regards argument as a sign of weakness . . . superior force is

the only law he recognizes. I applied the law, with fist and boot.”16

The use of physical force on the indigenous population was viewed by the

colonial rulers as something thoroughly “normal,” simply part of the everyday

reality of colonial life. As a result, the majority of the French saw nothing un-

usual in beating a North African,17 and the white settlers in Kenya considered

the whipping of Africans to be “a salutary and uncostly method of preserving 94 Chapter 4

 

law and order.”18 This “normality of violence” was legitimized by the racist

argument that Africans were less sensitive to pain than Europeans and there-

fore also more resistant to corporal punishment.19 From the perspective of

the colonial rulers, the position of strength enjoyed by white people and the

prestige derived from it had to be maintained at all costs, meaning that every

anticolonial provocation was to be answered with retaliation.

For the indigenous population, who received little protection from the established legal norms because of colonial racial justice such as the code de

l’indigénat, the colonial situation meant that they were at the mercy of their

colonial masters at all times.20 The marked differences in the legal standards

made colonial justice a mirror image of the relations in colonial society.21 This

is well illustrated in the disproportion of the punishment handed down in the

case of the white settler Richard Gerrish on the eve of the Mau Mau War. On

6 June 1952, Gerrish was ordered to pay a five- pound fine for the unauthor-

ized beating of an African. Because he beat the victim in the face with a pistol for which he had no legal permit, the court ordered him at the same time to

pay a twenty- pound fine for the illegal possession of a weapon.22

This type of terror regime intensified as soon as the colonial state was

challenged by indigenous resistance. “Colonial war,” said Fanon, “represents

the radicalization of colonial policy.”23 In his opinion, increasingly radical

forms of repression were used in the armed conflicts in the colonies, such as

detention camps, the principle of collective punishment, the scorched earth

policy, and torture, whereby racism and the dehumanization of the colonial population were the essential features of the conflicts. The colonial state of

emergency unleashed additional potential for violence, and the more critical

the dangerous situation appeared, the greater was the readiness to use force.24

 

The Colonial Emergency as a Legal Vacuum

 

Originally, it was not strictly a colonial phenomenon to declare a state of

emergency; this constitutional instrument had been developed and deployed

in the metropoles to enable the state to respond to extraordinary external and internal threats to public safety and order, which it believed could not

be mastered with the usual means.25 The original types of emergency rule,

from which several other types later developed,26 were the wartime state of

siege and the imposition of martial law,27 in which all competence of civil au-

thorities was transferred to military authorities, individual basic rights were

greatly limited, and the jurisdiction of military courts was expanded to civil-

ians. Because of this far- reaching shift in legal authority, the governments in

Legitimation of Colonial Violence 95

 

the metropoles decided to resort to such procedures only in extreme emer-

gencies and with great caution. However, in the overseas territories, the con-

centration of state power in the hands of the military was a well- established

element in the way colonial powers responded to crises in the periphery.28

Great Britain imposed martial law very often in its fight against numerous

colonial uprisings29 and saw this as an important instrument to secure impe-

rial rule, as Major General Charles Gwynn explained in his pioneering work Imperial Policing, published in 1934.30 In the course of the many uprisings,

Ireland in particular developed into a testing ground of British emergency

law.31

A special variation of the state of emergency was implemented to counter

an internal threat to the existence of a state, without imposing martial law.32

Unlike the state of siege, the powers of civilian authorities were officially un-

touched. However, the emergency measures included a series of special pow-

ers, which shifted a broad range of legal authority from the legislative to the executive and at the same time suspended fundamental individual rights.33

For this reason, the Italian philosopher Giorgio Agamben sees this lack of

a separation of powers as a characteristic element of the state of emergency.

However, he identifies the disjunction of enforcement and the law itself as a

decisive feature of the emergency state: the state of emergency is “a ‘state of

the law’ in which, on the one hand, the norm is in force but is not applied

(it has no ‘force’) and, on the other, acts that do not have the value of law

acquire its ‘force.’”34 For Agamben, the state of emergency is a legal vacuum, an anomic zone resulting from the suspension of lawful order with a massive

impact on the fundamental rights of the individual.35

In developing the international regime of human rights, it was recognized

that human rights are under a particularly great threat during a state of emer-

gency. By pointing to the extraordinary danger present, the state could le-

gally limit or completely suspend basic rights such as the right to liberty, the

right to the security of person, the right to freedom of movement, the right

to freedom of speech and peaceful assembly, and the protection of privacy. The result was that security forces were no longer bound to legal norms in

their operations and could thus resort to measures like detention and tor-

ture.36 The protection and guarantee of fundamental rights in times of emer-

gency therefore became an important issue in the international protection

of human rights.37 With the help of the emergency clauses, the attempt was

made to establish fundamental rights as minimum standards even in times

of emergency.

96 Chapter 4

 

The Geneva Conventions of 1949 assumed a pioneering role in this issue

by addressing armed conflict, the most direct form of states of emergency,

with respect to international law.38 In addition to the provisions stipulated for

international wars, the Geneva Conventions especially spelled out in Article

3 the minimum provisions for humanitarian protection in internal armed

conflicts. In the classic emergency scenario, acts against the physical integrity

of a person, such as murder, torture, and cruel treatment, as well as injury to personal dignity and the curtailment of guaranteed rights were prohibited at

all times and in all places; furthermore, the prohibition of such acts could not

even be lifted by exceptional regulations.39 During the course of the consulta-

tions on the United Nations covenants on international human rights, the

Human Rights Commission also worked intensively on this issue from 1947

to 1952.40 The draft of an international human rights convention submitted

by Great Britain in 1947 contained a special clause in Article 4 that referred,

for the very first time, to states of emergency.41 However, this did permit member states to suspend the treaty provisions in a state of emergency. In-

stead of making basic rights “emergency proof,” the draft merely required the

compulsory reporting to the United Nations of any implemented measures

suspending rights. The British delegate Geoffrey Wilson justified the draft

article by pointing out that “Article 4 represents a loophole for not enforcing

the Bill in the cases of national emergency or some similar reason.”42 This

unfortunate choice of words betrayed a great deal about London’s actual mo-

tives and appeared to be logical in light of the frequency with which states of emergency were declared in the colonies.43 In the end, the draft failed because

of opposition by other commission members, who began in 1949 to promote

the proposal put forth by the World Jewish Congress, which prohibited any

suspension or limitation of fundamental basic rights.44

Consequently, Great Britain proposed an additional paragraph to Article

4 that was meant to guarantee limited rights even in a state of emergency.45

However, this proposal did not go far enough to satisfy the French delegation,

so it drafted its own, more comprehensive list of “emergency- proof” basic rights,46 on which the commission voted individually— right for right— in

1950. Yet even before the vote was taken, France itself removed particularly

controversial rights from its proposed list, such as the right to personal free-

dom and security, the right to due process of law, and the right of freedom of

movement. Despite this, the French proposal became the core of the catalog

of basic rights for Article 4, which was eventually included as the emergency

clause in the UN human rights covenants in 1966.47

Legitimation of Colonial Violence 97

 

Although Great Britain’s version— limited to only four basic rights— was

being rejected by the United Nations, it proved far more successful on the

European level. Originally, no emergency clause had been planned for the

ECHR, but the British delegation submitted the same draft to the responsible

expert council of the European Council in 1949.48 The result was that the

right to life,49 freedom from torture and from slavery, and the prohibition of

retroactive penal legislation were included as the public emergency clause (Article 15) of the ECHR in 1950.50 This meant that the invariable mini-

mum standards of the European Council corresponded to a great extent with

those of the Geneva Conventions and can therefore be called the “irreducible

core of human rights.”51 Ironically, the original idea to introduce the public

emergency clause in order to have a backdoor through which to circumvent

human rights commitments led instead to the establishment of a minimum

standard of emergency- proof basic rights in the international human rights

documents. The colonial powers Great Britain and France both had partici-pated significantly to this development.

In overseas territories like Kenya and Algeria, however, each minimum

standard securing basic rights for the indigenous population was perceived

as a factor confounding efforts to secure colonial rule. Particularly during

periods of colonial unrest and uprisings, the besiegement mentality of the

white settler population radicalized to the point that all concessions toward

the natives were viewed as intolerable weaknesses and unacceptable dangers.

In the fight against “anticolonial terrorism,” it was argued that one’s own posi-

tion should not be recklessly weakened by democratic and legal norms. In-stead, the principles of a state governed by rule of law should be suspended in

order to give security forces a completely free hand in their operations against

“subversive” forces.

In light of the escalation of tensions in Kenya in 1952, Michael Blundell,

the representative of the white settlers, declared that law and order first

needed to be completely restored: “Above all, it will mean the removal of

many privileges which we have come to regard wrongly as rights. For many

years the privileges of freedom of movement of the individual and of as-sembly, the freedom of the press, the right to manage independent [African]

schools, will need to be strictly and firmly controlled.”52 In Blundell’s opinion,

the freedoms to which he referred were not inalienable human rights, but

privileges that needed to be deprived to the African population in order to

restore order.

For the majority of white settlers, however, it was not enough to simply 98 Chapter 4

 

restrict basic rights, which they considered anyway to be thoroughly out

of place in Kenya. Equal rights and constitutional law were to be reserved

only for “civilized” people, in their opinion.53 Further, they criticized the

humanitarian and liberal forces in Westminster, who— by curtailing draco-

nian punishments— deprived them, in their view, of a valuable disciplinary

instrument and encouraged the natives to rise up against the colonial gov-

ernment.54 The stronger the threat posed by the Mau Mau was perceived as being, the louder became the voices calling for harsher intervention and col-

lective punishment of all Kikuyu. In the opinion of the settler Ione Leigh,

a “primitive” enemy like the Mau Mau should not enjoy the protection of

British law: “Though British justice may be the finest in the world for civi-

lized persons, it has proved entirely unsuited to a primitive population. Its

slow, ponderous tread impedes the Army, the Police and the Administration

generally.”55 Therefore, Leigh advocated a rigorous policy of force, pointing

out how the French and Germans handled similar situations in their colonies. Women and children were to be removed from villages under suspicion, after

which the entire male population was to be shot and the village razed to the

ground.56 Had such collective measures been implemented, he was convinced

that the Mau Mau problem would have been solved by then, long before the

rusty machinery of British justice was set into motion.

The rising number of raided white farms and murdered settlers provided

the necessary acceptance of this radical attitude among the European popula-

tion of Kenya. Under the leadership of Colonel Ewart Grogan, a prominent pioneer from the era of the white settlement in Kenya, the Kenya Empire Party

was founded in 1953, which openly campaigned for the principle of collective

punishment, “justice by the whip,” the expansion of the death penalty, and the

abolition of constitutional order.57 In the wake of the gruesome murder of the

Ruck family, this settler extremism escalated on 24 January 1953 when an ex-

cited crowd attempted to storm the gubernatorial palace in Nairobi, demand-

ing the annihilation of fifty thousand Kikuyu to set a deterring example for the

African population.58 Following consultations with the governor, white- settler leader Blundell appeared before the crowd saying, “I am glad to tell you that

I now, at long last, bring you your shooting orders.”59 With this, he then an-

nounced the creation of forbidden zones in which settlers could shoot any Af-

rican found there without warning. Many whites interpreted this as a general

“license to kill.” In connection with this settler extremism, even the Colonial

Office spoke of an “emergency mentality,”60 whereby the radical settlers were

dubbed the “white Mau Mau”61 because of their demands and actions.

Legitimation of Colonial Violence 99

 

In the Algerian departments, the crisis also radicalized the colonial situa-

tion. The racist delusion of supremacy and the indifference of the pieds noirs

to the fate of the Arabs were replaced with an animosity of almost hysterical

dimension.62 Especially after the ALN raids on the cities of Constantine and

Philippeville and a series of smaller settlements in August 1955, the Euro-

peans viewed every Muslim as a “terrorist,” according to Governor General

Jacques Soustelle.63 The consequence was that ten Arabs were killed for every

dead Frenchman in the subsequent retaliatory raids carried out by the army and the settler militias.64 Soustelle’s adviser Vincent Monteil described the

situation accurately: “Both population groups are now incited against one

another; a race war, irresponsible and merciless, is at our doorstep.”65 Ten-

sions between the European and Arab populations heated up quickly as the

fighting spread. Serious clashes ensued once the FLN started in 1956 to tar-

get localities popular with the pieds noirs in Algiers, like cafés and bars, for

bombing attacks. Enraged Europeans countered the bombing terror of the

FLN with the infamous ratonnades against the Arab population, in which a

number of Arabs were lynched in the course of the riots.66

The consequences resulting from this tense atmosphere were demands by

the colons for a more drastic crackdown by government forces, demands that

found widespread support in army leadership circles. In particular, the ad-

vocates of the guerre révolutionnaire theory, like General Massu, considered

liberal and constitutional principles to be vulnerabilities, since these could be

exploited by the rebels to their advantage and would hinder security forces

in their mission.67 One of the many who supported this position was General Jacques Allard, who complained in a letter to their common superior that

there was no legislation adapted to the Algerian conditions.68 Democracy and

legality were extremely negatively valued, since they could not sufficiently

protect the victims from the perpetrators.69 In the opinion of Commandant

Emile Mairal- Bernard, the nation should not tolerate a situation in which the

“generosity” and liberalism of its laws were being instrumentalized by sub-

versive forces for antinational aims.70 For this reason, Commandant Jacques

Hogard concluded, “The time has come to realize that the democratic ideol-ogy has become powerless in today’s world.”71

Many officers believed that the solution to the problem would be a reverse

in orientation whereby the army would no longer be forced to adapt its strat-

egy to comply with the constitutional principles of the French republic, but

instead, the state would have to adapt to the needs of counterinsurgency. A

100 Chapter 4

 

military study from August 1957 warned of a lack of adaptability within both

the French judiciary and the legislature and recommended to state institu-

tions that they adapt the law as quickly as possible to the new challenge.72 In

order to fulfill its mission, the military should rigorously deploy all the weap-

onry of modern warfare and only be answerable to its own judicial system.73

According to General Massu, French soldiers should act within the frame-

work of biblical law: an eye for an eye, a tooth for a tooth.74 At a lecture in a training center for counterinsurgency, Colonel Charles Lacheroy translated

this standpoint into a secular motto: “One does not fight a revolutionary war

with the Code Napoléon.”75

 

State of Emergency, État d’urgence, Pouvoirs spéciaux: The Omnipotence of Emergency Law

 

The British and French governments did not wait long to react to the grow-

ing pressure being exerted by the settlers and the military. At an early stage in both conflicts, London and Paris officially resorted to the tool of declaring

a state of emergency. By investing their security forces with a wide range of

special powers, the governments greatly expanded the colonial repression ap-

paratus. For the indigenous population, the already violent colonial situation

was radicalized further because even the very minimum existence of a rule of

law was thereby abolished.

In his letter to Colonial Secretary Lyttelton on 13 September 1952, the

outspoken Labour MP Fenner Brockway condemned the constraints on basic

rights planned in Kenya as an elementary violation of the Universal Dec-laration of Human Rights.76 This legislative bill reminded him more of to-

talitarian regimes on the other side of the Iron Curtain than of a democratic

society. The solution to the problems in Kenya did not lie in strengthening

repressive measures, but in eliminating social and political injustice and ra-

cial discrimination. In the incited clamor ringing through the crown colony,

Brockway’s sharp criticism was not heard. Instead, the administration in Nai-

robi restricted the freedom of the press, of association, and of movement in the first legislative package, passed on 25 September 1952.77

The growing number of attacks and finally the assassination of Chief Wa-

ruhiu handed Governor Baring an immediate justification to impose a state

of emergency in the colony on 20 October 1952, with the express approval

of the colonial ministry.78 The legality of this was based on the Emergency

Powers Order in Council of 1939,79 which empowered Baring to enact far-

reaching emergency regulations in the months that followed. Among other

Legitimation of Colonial Violence 101

 

things, these emergency regulations80 contained a ban on meeting and assem-

bling, a ban of all African political organizations, tighter controls on obliga-

tory identification, a stricter censure of the press, a ban on the publication

of “subversive” writings, the limitation of the freedom of movement and of

travel through curfews, a complete control of means of transportation, as well

as collective punishment by way of special taxes and the confiscation of land

and other property. At the same time, security forces were granted unlimited authority to conduct searches and police checks and to declare certain regions

as “forbidden zones,” in which it could be deadly for Africans to enter and

stay. Detention orders enabled every British representative of law and order

to arbitrarily arrest those people considered suspicious and a public danger,

even without a judicial warrant. With this step, the colonial government cre-

ated the legal basis for the arrest and detention of thousands of Kikuyu.

Thanks to these emergency regulations, London was able to avoid the

imposition of martial law and could maintain the veneer of civil normal-

ity.81 Although many aspects of the state of emergency in Malaya served as a model, in the Kenyan case the military high command was not amalgamated

with the civilian leadership. Kenya’s commander in chief, General Erskine,

did not officially enjoy the proconsular authority of his Malayan counter-

part, General Templer, who not only held the military post of commander in

chief, but was also the high commissioner of the colony.82 In Kenya, the army

was officially separated from civilian authorities, and, in cooperation with the

police, this triumvirate was to maintain domestic order. However, this ideal of a harmonious separation of powers was distorted by a secret letter from

Prime Minister Churchill to his personal friend Erskine. This document,

which hung like the sword of Damocles over the heads of the civilian colonial

administration, empowered the military commander to impose martial law

at any time as he saw fit and to assume civil control of the colony. It took no

more than the small gesture of opening and closing his eyeglasses case, where

Erskine kept this ultimate trump card, to silence troublesome representatives

from both the colonial administration and the settlers.83

Even though the enacted measures were already quite far- reaching, the

emergency regulations were once again strengthened during the course of the

state of emergency. While the active participation in “terrorist” Mau Mau at-

tacks had been ruled a capital offense and punishable by death, in December

1952 authorities in Nairobi called for extending the use of the death penalty

to other crimes. In their minds, merely holding a Mau Mau oath ceremony

should have been punishable by death. In London, the Colonial Office at first 102 Chapter 4

 

rejected the proposal with the argument that no concessions should be made

to the demands of European settlers to impose harsh measures that, in the

end, would prove counterproductive.84 Yet only four months later, in April

1953, such arguments no longer played a role. The raid on the police sta-

tion in Naivasha and the Lari massacre led to yet another expansion of the

colonial repression apparatus, whereby the emergency regulations gradually

became the mirror image of the radicalization of the colonial situation.

The new emergency regulations imposed the death penalty for any form

of direct and indirect support of the rebels, including sabotage, leading an

oath ceremony, collecting provisions and supplies, and possessing weapons

and ammunition.85 The possession of a single cartridge alone was enough to

be hanged. As Hugh Holmes, an officer of the Royal Northumberland Fu-

siliers, described in his memoirs, one of the common practices among the

security forces was thus to slip a cartridge into the possession of suspects and

wounded individuals in order to “convict” them of a capital crime and turn them over to the executioner.86 Transportable gallows, which were mounted

on trucks and driven from place to place,87 and public executions dramati-

cally underscored the new British approach and were meant to deter the Af-

rican population from supporting the Mau Mau movement in any way.88

The rapidly growing number of court trials prompted the colonial gov-

ernment in Nairobi to set up special emergency assize courts exclusively for

holding trials involving infractions of the emergency regulations.89 Between

April 1953 and December 1956 alone, these special courts sentenced 1,574 people to death by hanging. British authorities had a total of 1,090 Kikuyu

hanged, whereby the great majority of them were not convicted of murder

but of far less serious crimes such as holding oath ceremonies and possessing

weapons.90 In all, the number of executions surpassed several times over the

total number of executions in the other emergencies of the British Empire

taken together since World War II and was more than twice as high as the

number of French executions during the entire Algerian War.

David Anderson correctly points out that state execution has never been used to such an intensive degree in any other place or at any other time in the

history of British imperialism as it was in Kenya.91 Faced with this fact, even

British veterans like the police officer Peter Hewitt had to admit the dicta-

torial nature of the emergency regulations, yet not without simultaneously

legitimizing the measures by pointing to their necessity to ensure security.92

Even though the resistance of the Mau Mau movement had been completely

put down by the end of 1956, the state of emergency remained officially in

Legitimation of Colonial Violence 103

 

force until 12 January 1960.93 Great Britain’s East African crown colony was

thus governing by the emergency regulations for nearly eight years.

As the situation in Algeria began to heat up, the government in Paris also

reacted in April 1955 by declaring a state of emergency there. Since the con-

stitution of the Fourth Republic did not contain emergency regulations,94 and

the authorities did not want to declare martial law under a state of siege—

the état de siège— considering the “domestic problems” in the North African departments,95 it was necessary to create a new legal entity. Subsequently, a

legislative bill was put forth by the Faure government on the état d’urgence

and passed by the French National Assembly with an overwhelming majority

on 3 April 1955.96 Originating from an initiative by the French military, the

état d’urgence was to be a compromise between a normal state of affairs and

a state of siege that Paris believed would enable it to adequately react to the

new security challenges.97 In keeping with French republican tradition and

the appearance of civil order, the civil authorities were to be invested formally with new powers, under which the military continued to be subordinate.98

However, the declaration of a state of emergency, which was at first lim-

ited to six months and only extended to all of Algeria on 28 August 1955

following the bloody incidents in Philippeville, actually gave the executive

nearly absolute dictatorial power to limit, if not suspend, constitutionally

guaranteed civil rights. The Algerian governor general now had the right to

limit the freedom of movement, to declare certain areas as security zones

in which people were prohibited from entering, to ban gatherings, to close venues, and to subject the press to severe censorship.99 Security forces were

delegated unlimited powers to search houses and conduct raids at any time

of day or night without a special court order. The expanded competence of

the military jurisdiction to certain crimes connected with the state of emer-

gency brought about a marked militarization of criminal justice.100 Article 6

of the emergency legislation had a particularly decisive impact on the situ-

ation in Algeria. With the assignation à résidence, authorities had the right

to assign people to a place to live if they where thought to present a threat to public order and security. Although the wording of the law expressly for-

bade the establishment of detention camps, this measure evoked memories

of the Vichy period in several socialist and communist legislators,101 and in

practice the assignation à résidence did indeed lay the legal groundwork for

the extensive resettlement and detention measures implemented during the

Algerian War.102

As a result of the dissolution of the National Assembly on 1 December 104 Chapter 4

 

1955, the état d’urgence became invalid, and the new government under Guy

Mollet declined to declare a new a state of emergency.103 Instead, on 16 March

1956, the French parliament passed a law that would be known as the pou-

voirs spéciaux,104 in which Paris first announced an extensive program for

the economic and social development of Algeria as well as comprehensive

administrative reform. However, Article 5 also authorized the government

“in Algeria . . . to undertake all extraordinary measures necessary under the circumstances to restore order, protect persons and goods, and to preserve

the territorial sovereignty of the state.” The issuance of decrees was to define

more specifically the content of these “extraordinary measures” and enabled

the government to reinstate the assignation à résidence and to legalize deten-

tion camps.105 In this way, the pouvoirs spéciaux actually surpassed the provi-

sions of the état d’urgence and not only meant an escalation of the colonial

emergency situation but also gave the French security forces carte blanche to

fight insurrection. Although the new special powers did not legalize torture, as the historian Pierre Vidal- Naquet notes in his attention- getting book La

torture dans la république, they did set up the parameters to do everything in

the name of France and to protect the republic.106 The Algerian departments

were increasingly subject to a “regime by decrees”107 that allowed the colonial

power to repress any form of indigenous resistance by “legal” means.

Astonishingly, voices were being raised from army circles claiming that

even these broad powers were inadequate in the fight against the subversive

enemy. A military working group had studied the existing emergency regula-tions and come to the conclusion in a secret internal report that neither the

état de siège, the état d’urgence, nor the pouvoirs spéciaux sufficiently provided

the security forces the means they needed.108 Although many measures did

indeed meet the expectations of the military, the report found too many re-

strictions and barriers in the existing laws. Since revolutionary war required

an all- encompassing strategy, security forces should be invested with com-

plete power, which is why newer, more radical laws on counterinsurgency

were being demanded.109 At the same time, the study recommended that civil offices turn over all their competence to the military.110 Only by way of this

concentration of power and complete independence from civil supervision

could the army effectively battle the subversive threat single- handedly.

The consequence was that the French military leadership not only de-

manded more and more power from the civil administration, but actually

took over and transformed Algeria into a type of military province.111 For-

mally, the civil agencies retained their authority, which in practice, however,

Legitimation of Colonial Violence 105

 

they relinquished to their military counterparts.112 Particularly evident was

this capitulation of the constitutional state in the Battle of Algiers, in which

the city prefect Serge Baret authorized General Massu to take all measures

necessary to restore order.113 This creeping disempowerment of civil author-

ity and the chaos it caused in exercising authority were strongly criticized in

a letter written in 1957 to Robert Lacoste, then resident minister in Algeria,

by the secretary- general of the prefecture, Paul Teitgen, who had refused to approve the use of torture despite great pressure. In Teitgen’s opinion, the

problem was not of getting tangled up in illegality in this fight, but in an ano-

nymity and lack of responsibility that would inevitably lead to war crimes:

“Through such improvised and uncontrolled methods, despotism finds every

sort of conceivable justification. What is more, France runs the risk of losing

her soul to ambiguity.”114

One particularly critical manifestation of the continuing militarization

of all civil spheres was the intervention of the army in judicial matters.115 The military hindered and threatened the defense lawyers of arrested FLN sup-

porters, while at the same time it abolished guarantees of due process in the

code of criminal procedure.116 In the eyes of the officers in charge, the ef-

ficiency of court trials had to be enhanced, which meant nothing else but

increasing the level of repression.117 The judiciary was to be subjugated to

the logic of war and mutate into an effective weapon of the guerre contre-

révolutionnaire.118 On the basis of a decree issued on 17 March 1956, the ju-

risdiction of the military judiciary was expanded, prompting military courts to intervene with increasing frequency in areas of civil jurisdiction.119 The

consequence was a dramatic increase in the number of death sentences and

executions of alleged “terrorists,” especially after the series of FLN bombings

began in Algiers.120 Much like the case in Kenya, the judiciary transformed

itself into an instrument of colonial repression at the cost of constitutional

norms, whereby the insistence on judicial procedure served to preserve the

appearance of legality.

The aspect so exceptional about the emergency in Algeria was that the radicalization of the colonial situation unleashed forces that would not re-

main contained within the borders of the North African departments but

would eventually threaten even the colonial metropole. The suspension of

constitutional norms and the growing militarization of all facets of the gov-

ernment in Algeria were also expressions of an increasing politicalization of

the French army121 directed against the political system. The severe breach

of trust between the government and the high command, which had first 106 Chapter 4

 

appeared during the Indochina campaign, led to the absolute alienation of

the military from civil authority.122 Particularly the elite units of the Foreign

Legion and the paratroopers cultivated their own martial esprit de corps, the

“esprit para,”123 highly reminiscent of the republic- hostile, antidemocratic at-

titude of the German Freikorps.124 At the same time, the comprehensive pow-

ers of the emergency laws enabled high officers and leading proponents of the

guerre révolutionnaire theory to intervene more and more in French domestic policy. Prominent high points of this malaise de l’armée125 were the support

given to the incited pieds noirs in occupying the residence of the governor

general in Algiers on 13 May 1958, with the subsequent establishment of the

Committee of Public Safety headed by General Massu, and the putsch by the

leading Algerian generals Challe, Salan, Jouhaud, and Zeller on 22–25 April

1961.126 In both cases, the Algerian army, armed with the special powers to

protect the state, now threatened the existence of the French republic. The

government in Paris felt compelled to declare an état d’urgence in France itself in 1958 for the first time and then again in 1961.127 The state of emergency

had been legally introduced by the metropole because of events in the periph-

ery, but now it boomeranged. Above all, it had created the legal prerequisites

to implement the new military doctrines of counterinsurgency with almost

no constitutional barriers.

 

Antisubversive War: The Military Response to the

Anticolonial Challenge

 

Revolutionary Guerrilla Warfare as an Anticolonial Danger

 

Guerrilla warfare was not a phenomenon that the colonial powers faced in

their overseas territories only after 1945. The term “guerrilla” is originally de-

rived from an early nineteenth- century European theater of war, namely the Spanish resistance to Napoleonic occupation.128 In the colonies, the “small

war” was the dominant form of military confrontation.129 Contrary to the

“big wars” of regular armies in Europe, these were asymmetric conflict sce-

narios in which the African and Asian resistance movements attempted to

compensate for their technical inferiority to the colonial occupation power

by fighting a war of attrition.130 Colonial expansion meant that the colonial

powers faced with increasing frequency what appeared in their view as the

unconventional methods of the insurgents. On the part of the European metropoles, the military soon began to search for an adequate response to

Legitimation of Colonial Violence 107

 

this strategic challenge in the overseas territories, because the countermea-

sures customary in classic warfare had not produced any noteworthy success

in many cases.

General Thomas- Robert Bugeaud played a leading role in the French

“pacification” of Algeria in the mid- nineteenth century. By disbanding the

large, cumbersome army units and replacing these with small mobile task

forces known as “flying columns,” Bugeaud was copying the fighting meth-ods of his Algerian opponent Abdel Kader. The enhanced mobility enabled

French troops to attack the rebels constantly and to cut them off from civil-

ian support in raids against Arab villages.131 Not only did the French general

change military strategy, at the same time he also recognized the importance

of guerrilla warfare on the political- administrative level. The purpose of cre-

ating the bureaux arabes was to politically penetrate and monitor the Arab

population in order to nip any future uprisings in the bud. Bugeaud’s com-

bination of military force and political measures served as a model for the French military in the fight against colonial uprisings.132 The lessons learned