Remaking Asylum in Post-War France,1944–52

The fourth paragraph of the Preamble to the French Constitution of 27 October 1946 proclaimed that those ‘persecuted for the cause of liberty have a right of asylum in the territories of the Republic.’ ¹ A close echo of Article 120 of the 1793 republican constitution, by which the ‘French people offered asylum to those banished for the cause of liberty,’ the 1946 paragraph reclaimed a historical legacy that dated back to the Revolution, and now made asylum a foundation principle of the postwar republic. Coming immediately after a paragraph that recognized for the first time the equal rights of women, and before another that asserted the right of all to work, the paragraph on asylum was an innovation in rights central to the remaking of the republic after the dark years of occupation and collaboration between 1940 and 1944. ²

These paragraphs reflected something of the social revolution that those associated with the Resistance envisaged for the new republic that would follow Liberation. ³ The constitutional guarantee of asylum ‘for those persecuted for the cause of liberty’ was an ideological reaffirmation of republican ideals that had been subsumed during the slow decline of the Third Republic in the 1930s and their collapse in the armistice with Germany and proclamation of the Vichy French State in June and July 1940. Asylum was reclaimed as a foundation principle of the Fourth Republic not only to delegitimize Vichy. ⁴ As the failure of asylum to assure the protection of refugees in flight from persecution during the 1930s – through the denial of the right to work and to reside in France, forced expulsions and repatriations, internment, imprisonment and the concentration camps – had sown some of the seeds of the Vichy dictatorship, it also delegitimized pre-war distortions of republican values. ⁵

Asylum had a long historical legacy; it embodied republican visions of solidarity and equality, France’s openness to outsiders, its respect for the dispossessed and persecuted and for those struggling to realize for themselves the same liberties that the French people had so recently regained. ⁶ This is not to suggest that between the Liberation of Paris and the October 1946 Constitution there is a linear narrative in which we can see the progression of a new republican consciousness that was then expressed in the Preamble. On the contrary, the asylum paragraph was the outcome of a fragmented, episodic, historical development through which, piece by piece, asylum was remade in both practical and ideological form. Before the paragraph was proclaimed, the status of refugees and their protection was recognized and applied in the instruments of state. Administrative processes and the law itself legitimized their legal status and their right to live and work freely among the French people. This, then, was a practical remaking of asylum. Asylum was integrated into state practice, and refugees themselves were assimilated into the state. Asylum was also remade through the ratification of international instruments for refugee protection and assistance under the United Nations and its organizations. Domestic asylum converged with international process to assure the recognition of refugee rights and the application of French protection obligations. Finally, principles and values implicit in asylum were asserted in declarations of protection obligations for refugees most vulnerable to the deprivation of liberty. In short, asylum was remade in three ways, and it therefore assumed three forms: domestic asylum; international asylum; and asylum as principle and the recognition of refugee rights and protection obligations.

Although asylum was pronounced as a principle that affirmed republican values, it was not itself instrumental in the project of remaking republican institutions and law after the war. It was rather incidental to the problems of postwar legitimacy: the remaking of law after Vichy, the reclassification of the status of foreigners after the annulment of Vichy race and denationalization laws, responses to peoples displaced by war and the new political realities of postwar Europe and the assertion of France’s place within the new international order. There is accordingly no single narrative by which the remaking of asylum can be traced and analysed. The three meanings it assumed were the outcomes of concurrent and overlapping historical narratives, sometimes intimately connected and sometimes quite divergent.

The recent historiography of refugees in postwar Europe looks beyond national boundaries to the grave international crisis of population displacement. These histories tell us much about Displaced Persons and the international effort to assist and resettle them. ⁷ The new institutions that arose under the United Nations, the United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organisation (IRO), paved the way for a viable and enduring international refugee regime, culminating in the creation in 1950 of the United Nations High Commission for Refugees (UNHCR). Some also see an inevitable logic in the development of international law from the first accords of the interwar years to its final realization after the war. ⁸ It is suggested that postwar asylum in western countries was grounded on the attainment of an effective international response to refugees, itself the culmination of a long and difficult struggle, that had commenced in 1918 but had failed to define refugees adequately or implement effective organization for refugee aid and assistance until the creation of the UNHCR and the adoption of the 1951 Convention on the Status of Refugees. ⁹ France’s presence within this new international regime, it is further argued, was intimately tied to the assertion of asylum as integral to French cultural identity and French ambitions in postwar international affairs to recover lost prestige. ¹⁰

When we turn our attention to development within the French national boundaries, two questions stand out. Was the tradition of asylum disrupted only by German occupation and French collaboration in Nazi war crimes, and that, both before and after, the inherent character of asylum endured? Or was asylum policy defined separately from immigration policy because it signified a set of values contrary to the exclusionary and discriminatory influences on the latter? The continuities between the Third and Fourth Republics were such, Gérard Noiriel suggests, that the new legislation on immigration and nationality of the Fourth Republic reflected a vision little changed, as national measures for the protection of French labour from foreigners persisted. ¹¹ The critical difference was the abandonment of religious and ethnic discrimination that was so prevalent in the late 1930s, which, for Patrick Weil, normalized, or ‘assimilated,’ refugees into the general category of foreigners. ¹² This normalization was transformative. It stepped over the Vichy years and Vichy’s distinctions between foreigners and nationals, between refugees and foreigners, between Jews and others. Neither refugees nor foreigners would stand apart. The answer to both questions then is ‘no’. As asylum was remade after the war, no distinctions were made between refugee and immigration policy and law.

There are three broad narratives, then, that help us see through the fragmented but concurrent and overlapping historical narratives to explain how asylum was remade in postwar France. One is the return to normalcy under stable republican political, social and cultural order in which individuals and communities were reconciled to the state, and restorative justice helped mend the cleavages between collaboration and resistance. ¹³ This is the background to a narrative of the normalization, or ‘assimilation’, of refugees. The status of refugees cannot be distinguished from the normalization of the status of foreigners generally. A second narrative is the progress towards the international regime under the United Nations, through which domestic objectives converged with international developments for the protection of refugees. Asylum was remade under the available measures for international refugee assistance and new trends in international law. The third is the narrative of principles that leads us to the asylum paragraph of the Preamble to the 1946 Constitution.

Sociologist and historian of French immigration, Patrick Weil, suggests that the pertinent question for the Interior and Foreign Ministries during the period of Provisional Government in 1944–5 was whether, in Weil’s words, it was ‘acceptable to distinguish in law between refugees and other immigrants and to accord them the right of asylum and special protection independent of their origin and of the economic situation of the country?’ ¹⁴ To this end, suggestions were made in the office of the Interior Minister that refugees be granted a special status (statut bienveillant) and full civil rights (droit de cité) in order to facilitate their assimilation. ¹⁵ In truth, the law and measures that followed were silent on the ‘right of asylum’ as they sought to normalize the status of refugees within the general status conferred on resident foreigners.

The first measures responded to the uncertainties of the legal status of foreigners and prewar refugees after Liberation, especially Jewish refugees from Germany and Austria who had survived the deportations. There were reports of departmental prefects applying Vichy law on the expulsion of ‘irregular’ foreigners, who had been made ‘irregular’ by the same Vichy law. There were also rumours that pre-war German and Austrian refugees might be classified as ‘enemy nationals’ and therefore not be assured protection by the Provisional Government. Félix Gouin, President of the Provisional Consultative Assembly (Assemblée Consultative Provisioire), found this entirely unimaginable. He protested to Interior Minister André Tixier on 27 November 1944 that they were victims of Nazism unlike any others for whom France had a particular obligation. ¹⁶ The identification of ‘enemy nationals’, Tixier acknowledged, was a delicate question, and as the war continued in the eastern departments it was also a matter of national security. Detailed ministerial instructions followed on 21 December 1944 to advise the prefects on how they were to distinguish ‘enemy nationals’ from Germany and its satellites, collaborators, and others of suspect loyalty, from foreign nationals who deserved French protection. Those who had served in the French army or the Resistance, and those who had been taken prisoner or were deportees, were clearly exempt from the surveillance and controls required of enemy nationals and suspects, but they would need to show proof of ‘actions in favour of the allies or the Resistance’. ¹⁷ Other foreign nationals who had served France or who had lived in France and married over the course of the war and become part of the French people, were also protected. Their legal status was recognized under the pre-war decree-laws of 2 May and 12 November 1938 on the policing of foreigners and the decree of 14 May 1938 on the access of foreign nationals to the professions. ¹⁸

These instructions effectively restored the pre-war laws on the status of foreigners and refugees now that the Vichy laws had been annulled. The decree-laws of 1938, made during the panic of the new wave of refugees and clandestine immigrants from Germany and Austria, were restrictive and punitive; the purpose of the 2 May decree-law, on the policing of foreigners, was to control illegal entry and residence by denying access to the labour market and by ordering the expulsion of those with no legal grounds for being in France. Still, it was notable for the concessions it made to refugees. They were defined not so much by fact (that they could not be repatriated) but by their special juridical status as ‘political’ refugees; they were therefore protected from forced expulsion or repatriation by internment in special camps. ¹⁹

Tixier’s December 1944 instructions addressed the awkward anomalies of this interval between the Third Republic, Vichy and the Provisional Government. Certainty would be assured with a new statute on immigration. But there was a much larger political question to be settled: were the laws of the Third Republic still applicable? Or, rather, would the new republic be the restoration of the old republic? The divisions this question raised were already apparent when the Provisional Government restored French citizenship to formerly naturalized foreigners after it annulled the Vichy denationalization law of 22 July 1940. The restoration of their citizenship separated remnants of the republican Right of the Third Republic, for whom French citizenship was highly cherished and should be conferred on others only with great caution, from the new postwar republicanism. Patrick Weil calls them ‘timorous anti-Semites’, nurtured by the Third Republic and implicated by their work and writings during the Vichy period. They challenged a new political class of ‘egalitarian republicans’ drawn from the Resistance who now held ministries and other key positions in the public administration and the law (Weil names among them Interior Minister Tixier, former Free French ambassador to Washington, and René Cassin, former President of the Legal Committee of the Comité français de libération nationale — CFLN — and now Vice-President of the Conseil d’État). ²⁰

The influence of ‘timorous anti-Semites’ was also brought to bear on the drafting of the immigration statute. The statute would give direction on the admission and residence of immigrants by replacing all previous laws. At the beginning of 1945, however, there were no clearly established policy objectives and even the question of whether the statute should be a definitive break from pre-war legislation was not yet settled. This allowed much room for an ideological divide on the nature of the new republic to emerge.

General de Gaulle himself turned to a new advisory committee, the Consultative Committee for Population and the Family (Haut-Comité consultatif de la Population et de la Famille). It was similar in nature and membership to the Committee on Population (Haut-Comité de la population) that had met during the last years of the Third Republic, and which had been highly critical of immigration policy during the interwar years and its adverse impact on French society and its population. De Gaulle charged the new committee with advising on migration and population policy for the ten years ahead. It consequently took the lead in drafting the new immigration statute. It differed from the pre-war Committee, however, by having no representatives from the ministries; its members were instead demographers, populationists and natalists, recognized specialists in their fields who had made their reputations in the 1930s. They would advise and suggest policy free of the influence of professional bureaucrats. President of the Consultative Committee, Georges Mauco, was a recognized specialist on immigration, and had advocated selective migration before the Committee on Population in 1939. These ideas informed his attitude on postwar migration. ²¹

The Consultative Committee, or more precisely Mauco, whose early drafts of the statute and his texts in their defence went largely uncontested by the other members, insisted that future immigration policy must be based on two factors to consolidate France’s postwar economic and demographic recovery: ethnic preference, applied through immigrant selection, and geographical dispersal, in order to avoid foreign clusters in the overcrowded cities and to repopulate the depopulated regions of the south and south-west. The resettlement of refugees would certainly not correct the demographic deficit, as Mauco believed that they had introduced some of the worst foreign characteristics into the French population. While silent on displaced persons and Jews, Mauco restated his pre-war hostilities by referring to pre-war refugees from the Middle-East. Armenians and Assyrians especially were unsuited to French culture and society; they had been ‘diminished psychologically’ by the ‘anguish of their persecution’. Sympathetic observers would no doubt find an oblique reference to Jews and their persecution here.

In short, ethnic selection would serve France’s demographic wellbeing, and the settlement of refugees would need to be highly regulated. Just how regulated was made clear in several articles in one draft of the statute. On admission, there would be a close inspection of their personal details and proof of their claims to protection, which would then be validated by the Interior Ministry while they were placed in ‘protection centres’ (centres de protection) across the country. Refugees settled in the depopulated regions to work the land would be granted residence permits for 10 years. If refugees fell foul of French law and faced expulsion but could not be expelled for any reason, they would be placed in ‘work camps’ (camps de travail). ²² If allowed, these measures would have entrenched French refugee policy in the same kind of pre-war regime of policing, control and internment of the reviled decree-laws of 1938. In 1945, this represented, at best, grudging acceptance of France’s protection obligations and indicative of its timidity in the face of refugees and foreigners. A later draft of the statute cut these articles and replaced them with two others that gave refugees the same rights as ‘other foreigners’, but maintained the need to hold them in detention if they could not be expelled. The name ‘work camps’ was dropped in favour of ‘supervised work centres’ (centres de travail surveillés). ²³ The assimilation of refugees into the general category of foreigners was assuredly the preferred policy objective, but punitive views remained.

It is not known how widely shared these views were but they do suggest the adverse possibilities facing refugees if they were to be distinguished in law and had a separate status conferred on them. It is certain, however, that there was little support for these views beyond the Mauco’s Committee on Population and the Family. The final text of the statute was reworked by the permanent commission of the Conseil d’État, René Cassin presiding, and all references to refugees were removed. The power of ministers to regulate the ethnic origin and geographical dispersal of immigrants was also removed. ²⁴ The final text, in other words, made no distinction between categories of foreigners except for the intended purpose and length of residence. It instituted two types of residence permits, of long duration, valid for 10 years, and of short duration (temporaires), for students, tourists, businessmen and so on. The statute then specified the criteria applicable in these circumstances. The regulations for expulsion were highly detailed, defining administrative authority, legal protections, and the limits of the law. Finally, the statute also established a National Immigration Office (Office national d’Immigration – ONI) to recruit immigrant workers abroad.

Immigration policy would therefore be non-discriminatory, rejecting notions of ethnic preference, and was altogether silent on the status of refugees and asylum. It was adopted into law on 2 November 1945. ²⁵ The administrative instructions on the implementation of the statute, which specified the forms of permits and the processes of application for and authorisation of residence, included one paragraph only pertaining to refugees. Under the heading ‘Political Refugees,’ the following three-line instruction was to be applied: ‘If a worker claims the status of a refugee, this should be noted on the personal record. In principle, this should also be noted on the residence permit.’ ²⁶ The statute, therefore, completed the normalization of refugees through their assimilation into the broader category of foreigners. Moreover, they were, like most others intending long-term residence, considered immigrant workers. ²⁷

With the immigration statute in place, the 1938 decree-laws were formally repealed by ministerial decree on 30 June 1946. ²⁸ Refugees remained undistinguished among the general category of immigrants and resident foreigners, but they were protected all the same by residence and work permits, and by sharing the same rights as all resident foreigners. The statute normalized their status under French law in a manner that was consistent with historical tradition for not since 1853 had there been legislation on the status of refugees. Measures of policing and administrative measures applied through the issue of residence and work permits had subsequently regulated their status in the way they had done for immigrants generally. ²⁹

These outcomes were contrary to the option canvassed in the Interior Ministry in 1944 that refugees should have a special status with distinct rights. However, the Conseil d’État’s reworking of the immigration statute rejected a special distinction. It might be misleading to pay too much attention to suggestions and general discussions; it would seem safer to consider them policy options that remained open but were not yet decided at this early stage of the Provisional Government. Patrick Weil refers to this option in order to illustrate the questions open at the time about how new laws should be framed, and perhaps more importantly how they should distinguish the postwar regime from Vichy, certainly, but also from the Third Republic. The Interior Ministry itself in fact made a definite move away from special status for separate categories of foreign nationals when it sought to regularize the status of those foreigners whose status had been made ‘irregular’ under Vichy. Special regulations for distinct categories of foreigners impeded their assimilation into the French population because they separated them, even alienated them, in a way that critics of immigration cited as a reason why the French should not tolerate them. ³⁰ The imperative from late 1944 was to remove distinctions in order to assimilate France’s foreign nationals. The imperative in respect to refugees was to normalize their status as foreigners and thereby facilitate their assimilation, and in doing so assure their protection.

This, however, was not sufficient for some on the Left of the National Assembly. The absence of an article specifically recognizing refugees was for them a flaw in the 1945 immigration statute, one that should be corrected if France were to be true to its tradition of hospitality and not repeat the errors of the 1930s. This group of socialist and communist deputies therefore continued the debate over immigration policy into 1946 and 1947 when they argued the need for a revision of the immigration statute to assure a legislated status for refugees. The statute failed in a number of critical areas, they complained; its failure to guarantee adequate legal protection for refugees was only one. Another was its failure to implement reforms essential for France’s demographic and economic needs. The absence of a definition of the refugee, and the lack of guarantees for their protection, was for them symptomatic of how the new immigration statute failed to recognize the changed circumstances of postwar French society. Instead, the statute had set out on the same path that had led to the mistakes of the past: the concentration camps had been the result of the failure of protection before the war. ³¹ Two amendments to the statute that defined refugees were put forward, one in 1946 and the other in 1947, but both stopped short of specifying what legal status they would have. In the end, neither was put to the Chamber. ³²

The arguments for reform of the immigration statute showed that status of refugees and the guarantee of protection was part of the broader objective of a more complete reconciliation between France and its foreign population. They revealed just how accepted the notion of assimilating foreigners into the French community had become, and that defining specific categories of foreigners worked against this reconciliation. The needs of refugees could not be separated from the proper recognition of the status of those foreigners who had lived through the war and occupation alongside the French, or from France’s demand for workers for postwar reconstruction. The need was so urgent that they called for the immediate naturalization of the 300,000 or more foreign nationals, refugees among them, living in France. They had become full members of French society, but could not yet be called French. In this period of reconstruction, with a great demand for new workers, the government could do no less than retain the workers already present.

Intervention from the Left was therefore grounded as much in the problems of postwar society as it was in recognition of refugee rights. The need for workers was critical, but for this group of deputies on the Left, the lack of legislated protections for refugees was a weakness of the immigration statute. It was not sufficient that they be integrated into the general category of foreign workers; the pre-war experience showed that this was no protection. ³³ The statute was therefore a moment of ideological challenge, from an old republican Right experienced in Third Republic politics and well versed in arguing their jaundiced views of the impact of migration on France’s demographic decline, as well as from the Left. The vision of both was very much fixed in this past; for some on the Left, the statute was an opportunity to correct the failings of the past. Despite its critics, the statute nevertheless proved a turning point, not only because the influence of the ‘old Right’ was defeated, but also because it was a definite step towards the normalization of refugees in postwar policy.

The silence on refugees and asylum in the administrative measures of 1944 and the immigration statute of 1945 does not mean that refugees were ignored or forgotten in public policy. To be sure, the ways in which they differed from other foreigners – their lack of diplomatic protection from their countries of origin, their past persecutions or depravations of liberty, their fear for their freedom in the future, their involuntary alienation from their homelands, the trauma of displacement and their need for resettlement, and their need for financial and other services to help them resettle – were all very much in the mind of government and the ministries. Recognizing the need for direct government intervention for refugee assistance, the Council of Ministers created a standing Interministerial Commission on Refugees on 25 July 1945. One reason why was that the Consultative Committee on Population and the Family had no representatives from the ministries, and therefore the ministries themselves had no influence on the policy advice it would give. The Interministerial Commission would therefore ‘study of the problem of refugees in France’, as the Council of Ministers charged it, and in practice it addressed policy and administrative issues relating to reception, admission, settlement and welfare. ³⁴ It brought together the main ministries responsible for these issues, the Foreign, Interior, Justice and Labour ministries, with other ministries responsible for welfare services, to decide how best refugees could be accommodated. It advised what areas of public administration and the law should be reformed, and what ministerial interventions would be required, in order to facilitate refugee settlement, integration and the normalization of their status. By often small, undistinguished technical measures, the Interministerial Commission for Refugees improved the conditions for refugees and was instrumental in the nature of the protections they would have. ³⁵

Another example of how much in the mind of government were the refugees is the ratification of international refugee instruments and through it the convergence of domestic policy with the international regime for refugee protection. We should therefore add Foreign Minister Georges Bidault, former résistant and president of the executive of the Conseil national de la Résistance (CNR) after Jean Moulin’s death in July 1943, to the list of ‘egalitarian republicans’ for the consolidation of asylum in which his initiatives resulted. During his term as Foreign Minister (1944–8), he took three decisive steps to bring domestic policy into line with international arrangements: the affirmation of the accords for pre-war, ‘statutory’, refugees; the application of these arrangements to other groups of pre-war refugees not classified as ‘statutory’ refugees; and the application of international arrangements for new refugees.

Vichy had renounced the League of Nations accords that France adopted during the 1920s and 1930s for the Russian, Armenian, Assyrian, German and Austrian refugees. Just as the status of denationalized foreigners was regularized in national law, the international status of pre-war refugees was also regularized after Bidault affirmed in April 1945 that France would reinstate the League of Nations refugee arrangement of 1928 and the Convention of 1933 for the Russian, Armenian and Assyrian refugees (the ‘statutory’ refugees, also known as the ‘Nansen’ refugees after the League of Nations High Commissioner for Refugees who had made these arrangements). Bidault then announced that he also intended to ratify the refugee Convention of 1938 and Protocol of 1939 relating to refugees from Germany and Austria, thereby giving them diplomatic protection and an assured international legal status. ³⁶ The process continued. Spanish republican refugees, who had first appeared in 1939, and who again came across the Pyrenees after the war, were ‘assimilated’ into the classification of ‘statutory’ refugees by applying the 1933 Convention to them. Italian pre-war refugees were also brought under its jurisdiction. Bidault notified the office of the Intergovernmental Committee for Refugees in London, which now held jurisdiction over these conventions, of the new status of these refugees and asked it to assume responsibility for them under its mandate. It did so at its Executive Committee meeting of 11 April 1945. ³⁷

All recognized refugee groups were therefore protected under the international refugee regime as it then existed. This gave them international recognition, the support of international refugee services, and the protection of international law. France also gained practical and material advantage. It could access the services and financial support of the Intergovernmental Committee for Refugees and later from the network of refugee agencies working with governments across the world: UNRRA, the War Refugee Board, the International Red Cross and, from 1947, the IRO. ³⁸ Bidault listed in detail five reasons why France and the refugees would both benefit: the international arrangements would assure the refugees of consular protection; they would assure that the victims of Nazi persecution would not suffer into the peace; France would not have to intercede directly with refugee committees and organizations but they instead would assume responsibility for the refugees’ welfare; funds from these organization were available to the refugees; and these organizations were best placed to facilitate their repatriation or resettlement abroad without France itself having to negotiate with governments. ³⁹

Bidault was therefore as mindful of improving the conditions of refugees as he was of the advantages for France from adopting the international arrangements. It would make the refugees’ lives better because they were not dependent on government agencies for material support, and France would not have to bear many of the international burdens that refugees brought. The government’s role consequently was to ensure their protection among the French people. Sometimes this went further than strict recognition of their status as refugees, as when all Nazi laws had been abolished in Germany, and the allies recognized the government in Austria. Former refugees from Germany and Austria could then return with full citizenship rights. This, however, raised the fraught question of whether it was just and proper to return them if they did not wish to return. As many had fought against Nazism and had put down roots in France, Bidault declared that it would be both ‘difficult and brutal to uproot them’ and they would face no obligation to return. ⁴⁰ He implicitly recognized that refugees did not remain refugees indefinitely, but that over time they were naturalized into the community. Time, and the normalization of their status, assimilated them, whereas an enduring classification of ‘refugee’ would leave them vulnerable to outcomes such as forced repatriation.

Indeed, forced repatriation was the context in which France asserted its protection obligations most emphatically and committed itself fully to the new postwar refugee instruments of the United Nations. The most significant episode was the repatriation of Soviet prisoners of war from late 1944.

Even before war’s end, a Soviet military mission of high ranking officers and agents had been sent by Stalin to find and repatriate Soviet citizens taken prisoners of war during the allied advance across France. ⁴¹ Men, women and children, prisoners of war and forced labourers, had been brought from the east to aid the German defence. Thousands of Soviet prisoners were captured in German uniforms when forced to serve in the Wehrmacht; many fled the German lines ahead of the allied advance, some making for the Resistance. Possibly as many as 100,000 Soviet prisoners and workers were liberated, and from July 1944 a network of camps was established to remove them from military lines and keep them under guard. ⁴² The camps dotted the French map: 70 were established by the French, one by the British, and another five by the United States. By the end of 1944, some 74,000 Soviet nationals were detained awaiting repatriation. ⁴³

The French willingly ceded authority over the camps for the Soviet prisoners to the Soviet military missions. They became effectively ‘extraterritorial islands'. ⁴⁴ The Soviets managed the camps and maintained discipline, while the French provisioned them. This suited French interests as it hastened preparations for the Soviet repatriations and facilitated the return from the east of French prisoners of war. Arrangements were well under way even before General de Gaulle’s visit to Moscow on 10 December 1944 to sign an alliance with Stalin in which both sought to consolidate their separate interests against US–British hegemony in postwar Europe. ⁴⁵ Meanwhile, the British and Americans negotiated separate accords for the repatriation of prisoners of war, signed on 11 February 1945. The formal Franco–Soviet agreement was signed on 29 June 1945. ⁴⁶

The Soviet government insisted that all Soviet nationals captured by the allies be treated as ‘allied nationals’ and not as prisoners of war. ⁴⁷ Interior Minister Adrien Tixier instructed his regional commissaires (prefects) that the Soviet nationals awaiting repatriation were ‘Soviet refugees’ and ‘free citizens of an allied power’; they were to be treated as such and were not to be confused with prisoners of war. The commissaires were instructed to be sensitive to their movements outside the camps, and their needs for food, clothing, heating, and bedding, and to respect the authority of the Soviet officers in matters of discipline and camp administration. ⁴⁸ French officials, however, were unsure how they should look upon and address the Soviets. Correspondence with the Interior Ministry applied a mix of terms and classifications. They were commonly called ‘Russian refugees’ (réfugiés russes), or ‘Russian nationals’ (ressortissant russes), ‘stateless’ (apatrides), or more simply ‘Russians’ (russes), all familiar terms from the ways in which the many thousands of Russian refugees in the 1920s had been spoken about. The term ‘rapatriés’ (repatriates) was used more descriptively, while ‘Soviets’ and ‘Soviet’ (les Soviets, soviétique) conformed to formal arrangements and classifications. ⁴⁹ The local authorities were just as unsure how they should treat and punish those found roaming the streets outside the camps, often desperate and armed: they cut down trees for firewood, stole food from traders and even from people’s houses, sometimes at gunpoint. ⁵⁰

As Tixier himself had called the Soviet prisoners of war ‘refugees’, the French authorities were conscious the problems of handing them over to the Soviet missions without concern for their fate on their return to the Soviet Union. Although the British, Americans and the French were aware that Stalin had long had a policy of executing or imprisoning Soviet prisoners of war, suspecting betrayal or ideological contamination, military expediency and diplomatic interests were placed ahead of their protection. The classification of the Soviet prisoners of war as ‘allied nationals’ was therefore a defence against those who might refuse to be repatriated and call upon the protection of the allies. ⁵¹

In other words, it was recognized that there was a real possibility that some Soviet prisoners of war might claim a right of asylum. The French government would not altogether ignore these claims and leave them to face forced repatriation, and made it known that it would not look favourably upon the forced return of individuals whom it considered under its protection. Such a thing would be ‘contrary to what France has done in the past for those who have turned to it for refuge and invoked a right of asylum’. But it was questionable if this still applied, as the current situation was ‘different, because they did not come here voluntarily’; their circumstances were consequently the same as the displaced persons in the allied zones of Germany. Therefore, any Soviet nationals refusing to return would be considered displaced persons and therefore would come under the responsibility of the United Nations Relief and Rehabilitation Administration. ⁵²

From July 1945 the repatriation of the Soviet nationals from France accelerated. By 8 August, almost 70,000 were returned by aircraft, rail and sea with the assistance of the Americans and the British, and another 35,000 awaited repatriation. ⁵³ By October, 294,690 French prisoners of war had been repatriated and the French government could think of winding down the Soviet repatriations. ⁵⁴ The Soviet military repatriation missions, however, continued their work. By January 1946, the missions had moved into Indochina, Morocco and Tunisia to flush out Soviet nationals serving in the Foreign Legion.

French protection obligations became much clearer when the Soviet military mission was accused of overstepping its authority. There were disturbing reports that the Soviet agents used force to apprehend people who were not strictly Soviet nationals, but nationals of countries that had fallen under Soviet occupation since September 1939 – Poles and nationals of the Baltic states especially. ⁵⁵ There were accounts of home invasions to kidnap Poles; Soviet women who had arrived with French prisoners whom they had married in the east, and with whom they now had families, were also taken against their will. ⁵⁶ France’s understanding of the repatriation accord was that it applied to the Soviet Union’s pre-war borders, and the contention between the two powers over the correct interpretation prompted the Foreign Ministry to declare its protection of foreign nationals on French territory. It would henceforth respect individual liberty of choice and recognise the right of asylum for those who refused to return to the Soviet Union. ⁵⁷

This historic episode – for its historians, the tragedy – of the Soviet repatriations not only illustrates a transition between war and peace, it also illustrates a transition between wartime expediency and the realization that humanitarian responsibilities were an integral element of the peace. Asylum emerged again as a principle of rights when confronted with deprivation of individual liberty and the hostility of the Soviet Union to its nationals exposed to western influence. A moment of postwar French history that has scarcely been explored in the English historiography, its conclusion came in the convergence of national concerns about asylum and protection with the developments towards the international refugee regime under the United Nations. On 12 February 1946, the General Assembly adopted a resolution that recognized the urgency of the international problem of refugees and displaced persons and the need to assure their protection under international agreement. Among its recommendations were that ‘no refugees or displaced persons… in complete freedom… and full knowledge of the facts’ in his country of origin, would be forced to return to it, and that the country in which they were found was to assume responsibility for their protection. ⁵⁸ In compliance with this resolution, Foreign Minister Georges Bidault formally extended French protection to those vulnerable to improper demands for repatriation to the Soviet Union. ⁵⁹

The protecting principles behind the notion of asylum were therefore affirmed in a national declaration and through commitment to international agreements. A later decision in Moscow was reason for another national declaration affirming the protective principles of asylum. On 14 June 1946, the Supreme Soviet lifted the denationalization decree of 1924 that had deprived nationals of the former Russian Empire of Soviet nationality if they remained outside the Soviet Union. It now announced that they would be given Soviet citizenship and were invited to return. The prestige of the Soviet Union and the standing of Stalin after the defeat of Hitler had already influenced a good number of the Russian refugees to return from exile after the war, but the act of 14 June 1946 was greeted with suspicion among the many thousands of Russians in France. They feared that Stalin would soon compel their return just as he had compelled the return of Soviet prisoners of war. The French government worried that forced repatriations, and unrest among the French Russians, would sour its relations with Moscow. To head off these anxieties, the government invoked their right of asylum, even after all the years of their exile: ‘The principle that guides France… must remain our fidelity to our traditions of hospitality… refugees have always had, and will preserve, the right of asylum’, it was declared. ⁶⁰

The displacement of many other nationals from Eastern Europe and repatriation of former citizens of countries that had been overrun by the Red Army or had fallen to communist regimes saw many of the camps again used as temporary holding centres after they were cleared of Soviet repatriates. France entered into separate bilateral agreements on repatriation with Poland, Czechoslovakia and Yugoslavia for the return of their nationals. These countries also actively sought the repatriation of their nationals who had left before the war as migrant workers. ⁶¹ There were hundreds of thousands of Poles, Czechoslovaks and Yugoslavs, who had been recruited on labour contracts had lived in France since; they had become integral to the French economy and the French now insisted that Polish and Yugoslav labourers in French mines, industry and agriculture could not be dispensed with. Some, possibly no more than a few thousand, chose freely to return, but the majority had become settled and could not be uprooted. Many were partisans for the pre-war governments against the new Communist regimes and refused to return for ideological reasons; their choice to remain made them refugees. This made them a particularly delicate problem for France’s foreign relations with the new regimes of Eastern Europe. They received temporary administrative protection through the intervention of the Foreign Ministry but gained a more definite status as ‘displaced persons’ when France declared them to be foreign nationals who could not be repatriated. They were then placed in the charge of UNRRA. ⁶²

These statements of France’s protection obligations bring us back to the asylum paragraph in the preamble to the 1946 Constitution. The principles implied in the notion of asylum were commonly understood; no elaboration or dispute marked the presentation of the clause on the right of asylum during the debates in the Constituent Assembly. It was first presented in a draft of a new Declaration of Rights that would be appended to the constitution. ⁶³

The Declaration introduced a narrative of national and republican regeneration. Deputies alluded to France’s emergence from a period of national trauma; recovery demanded the reaffirmation of the values that had sustained and unified the nation in the past and would do so once more. ‘The war had imperilled the most precious aspects of humanity,’ Gilbert Zaksas, Socialist deputy for the Haute-Garonne and rapporteur of the constitutional commission, declared when introducing the draft declaration. ‘After four years of oppression and a monstrous conception of the sovereign state’ the French people were rethinking their traditional ideal of liberty. ⁶⁴ One of them was the right of asylum. ⁶⁵ This was ‘truly a French tradition’, claimed one deputy; it was found in the very nature of man and was therefore universal: ‘what is a verity on this side of the Pyrenees cannot be an error beyond them.’ ⁶⁶ Another deputy was less effusive but nevertheless commended the sign of ‘generosity’ that this article would give. Yet, since France maintained the principles of asylum while the laws contradicted them in the 1930s, there was a warning. The law, with its practical concerns, would limit this generosity in practice: ‘if the practice does not correspond to the theory, what good is such a solemn affirmation?’ ⁶⁷ No other deputy spoke. There might still be questions, but the inclusion of asylum as a foundation right was quietly agreed.

The constitution and its declaration of rights were rejected in the referendum of 5 May 1946, and a second Constituent Assembly was elected on 2 June to begin the work over again. ⁶⁸ The new constitutional commission favoured a preamble that set down key principles in place of a declaration of specific rights. ⁶⁹ The 39 articles of the Declaration were then reduced to 16 substantive paragraphs. ⁷⁰ The second promised the right of asylum on French territory for those persecuted for their ‘actions in favour of liberty,’ a wording challenged for being too restrictive and too open to interpretation. But there was no argument about the wording or the place of this right in such a prominent position. The Preamble was not as ambitious as the Declaration of Rights, but it followed its intent by setting down new civil and social rights recognized through France’s recent history, and continued the work of the republicans of the past by making the Fourth Republic, like the First, as one commentator puts it, the protector of the ‘Rights of Man.’ ⁷¹

Perhaps the most notable aspect to the guarantee of asylum in the Preamble is not so much that it was made. It was, after all, a proclamation of an old tradition and reclaimed historic principles in the general project of remaking republican political culture and restoring national prestige. It is more notable that it should appear among newly proclaimed rights and principles: the rights of women, rights of the family, the right to work and education, national solidarity and equality and the right of labour to organise, to bargain collectively and to strike. These all aimed at reconnecting individuals and the community with the state and making a new inclusive, egalitarian republican social order. They were also matters of justice, and after the victory against fascism these were the principles at the foundation of the new republic.

Given these sentiments, and the recognition of France’s protection obligations for those most vulnerable to the loss of their liberty, it is surprising that there was a general silence about refugees and asylum in the domestic measures adopted in 1944-5. There was no room for statements of principles in them, it must be said. The measures were instead practical and pragmatic responses to the problematic status of refugees and foreigners after the annulment of Vichy laws. The normalization of the refugees’ status within the general category of resident foreigners effectively sublimated their reality as refugees. Yet these and subsequent measures were nevertheless conscious of them. The ratification of the international arrangements that brought the refugees under the protection of the emerging international regime assured their protection and their access to the international services available for their assistance. The work of the Interministerial Commission on Refugees that examined and recommended changes to policy and administrative practice best represents state intercession to improve the lot of the refugees. Policy aims were to integrate – assimilate – them into the French state so that they could live with rights equal to other foreign residents and with protection as members of the French community. Its lasting achievement was the creation of the French national refugee office, the Office Français pour la Protection des Réfugiés et Apatrides (OFPRA), to replace the services of the IRO when its mandate expired in February 1951. ⁷²

So what had changed after the war with respect to asylum and refugees in France? After all, there were clear continuities between the Third and the Fourth Republics. Refugees had no special status under French law, and their residence and employment were regulated through residence and work permits; measures protecting French labour and the professions were again in place. International arrangements also existed previously, under which certain categories of refugees, the ‘statutory’ or ‘Nansen’ refugees, gained a recognized international status. The arrangements of 1936, the convention of 1938 for refugees from Germany and the protocol of 1939 for refugees from Austria extended the earlier arrangements. Through it all, the French would declare asylum a cornerstone of French traditions of hospitality even when it turned to internment in 1938.

There were other continuities. France’s readiness to admit refugees during the crises of the 1920s coincided with its demand for labour for postwar reconstruction and concerns about its demographic deficit. New refugees and immigrants would boost its economy and produce young, healthy families. After 1946, France again turned to migration to bolster its workforce. In need of some 300,000 new workers each year, by the estimates published in Jean Monnet’s plan for postwar economic development, France turned to its traditional sources of immigrant workers: Belgium, Italy and Spain. But they were almost exhausted, and prospective emigrants preferred to abandon Europe altogether. ⁷³ Like other western countries looking to supplement their labour forces, France turned to Displaced Persons camps in Germany and the Germans from the east displaced by communism. France, therefore, actively recruited refugees and the displaced with the aid of the IRO. They were not recruited because they were refugees, but because they were available sources of labour who would otherwise be left to languish. ⁷⁴ Restrictions on labour migration and the protection of the French professions, such as medicine and the law, limited France’s appeal to prospective immigrants, and raised serious questions about its preparedness to accept and absorb them. The requirement that a person entering France should already have a work permit before their arrival treated the refugees from the Displaced Persons camps as immigrant workers and limited their resettlement and employment options. The poor working and living conditions they found, furthermore, resulted in such a high rate of return to the camps that one recruitment scheme agreed between France and the IRO was abandoned in late 1949 after less than one year. ⁷⁵

The two departures from these historical continuities are the Constitutional paragraph on asylum, itself a stunning advance, and the convergence of domestic asylum with international asylum under international organizations. The paragraph on asylum lacked legal force, it is true, as the Preamble was a statement of principles and not itself constitutional law. But its significance, as with the other paragraphs of the Preamble, was in the principle it declared, and the new character of the republic it signified. Policy, nevertheless, was focused on refugees and their status within France. The undistinguished technical work of the Interministerial Commission on Refugees, and the convergence of domestic measures with international instruments, improved the lot of refugees and gave substance to asylum. They backed the ‘solemn affirmation’ of asylum with practical outcomes. French commitment to the international refugee instruments was further affirmation. In the 1930s, it must be remembered, the international arrangements then in place were used by France as a means of ridding itself of its refugees and passing the problem on to other countries; it had no place for them and used international law for its own national protection. Now, after the war, these same instruments, and the new ones that were agreed by the United Nations, offered safeguard and security.

French ratification of the 1951 United Nations Convention Relating to the Status of Refugees began a new historical narrative of asylum; for one thing, international law was applied by a national agency, the OFPRA, and backed by the national legal system. By then, however, there were three possible meanings to come out of the remaking of asylum since Liberation in August 1944. Domestic practice remade asylum as a process of normalization and assimilation, and the status of the refugee was effectively sublimated to the status of resident foreigner. Asylum was also remade as international protection under international instruments; refugees gained an internationally recognized legal status that was highly visible to their protecting states. Finally, the traditional sense of asylum – as principles of rights that evoked protective obligations – endured in the declarations of France’s responsibilities for those vulnerable to the loss of liberty and in the paragraph on the right of asylum in the Preamble. The exercise of protection, however, was much less about the recognition of abstract principles than legal process and the recognition of a just status under international refugee law.