Beatrice de Graaf, 21 August 2012

After the ‘9/11’ attacks many countries seemed to have lost faith in the ability of criminal law to prevent and punish terrorism. A whole new set of extralegal, warlike measures were deployed to fight terrorists, while issues of criminal law – let alone fundamental rights (such as a fair trial, admission of evidence in court, proof of guilt beyond reasonable doubt, repudiation of information retracted through harsh interrogation methods etc. –  were dismissed as not fit enough in dealing with hardcore terrorists.

However, a number of high focus civilian criminal law trials have demonstrated that criminal terrorism prosecutions can and do result in convictions and long sentences, and  that they moreover prove the viability, accountability and proportionality of the rule of law and democratic standards in dealing with terrorism suspects.

Rather than rehearsing the debate on ‘soft’ criminal law/human rights approaches versus the ‘hard’ war-model or extra-legalism motivated by security concerns only, we would like to further investigate the impact of terrorism trials on society first. Because at the heart of this dichotomy lies the assumption that one has to choose between freedom and security, or democracy and security. We would like to argue that it is possible to have them both. Terrorism trials can both advance governmental security considerations, uphold principles of fair trial and restore public peace and feelings of security at the same time.

However, up until now, there is no international comparative study showing what terrorism trials do for the public craving for security. It might very well be that trials help to restore public peace and satisfy the need for closure, retribution and revenge. Terrorism trials might also assist victims, their relatives and others involved in coming to terms with their grief and suffering. This was very much made clear in the civilian trial against Zacarias Moussaoui, that took place in the United States in a regular courtroom between 2002-2006, and that offered both victims and their relatives an opportunity to express their feelings of loss and grief during the hearings.

In this research project (initiated in 2010) we focus on the performative and communicative aspects that are central to terrorist trials, as described in this ICCT-expert paper. The project builds upon the work Beatrice de Graaf: earlier ICCT – The Hague hosted meetings ‘Terrorism Trials as Theatre’ and the ‘Terrorists on Trial seminar series’, as well as the NIAS Research Theme Group ‘Terrorists on Trial. The Court Room as a Stage in the Struggle for Publicity, Public Support and Legitimacy’ (see also the commentary written by Eelco Kessels).

The project applies a performative perspective to terrorism trials, hence not solely concentrating on the immediate judicial performance of the magistrates and/or the defence, but putting trials in their wider sociological context, adopting notions of social drama, social psychological coping mechanisms and communication sciences. Terrorism trials serve multiple ends, depending on the actors involved, who are all busy trying to mobilise their respective target audiences around their narratives and (in)justice frames. Thus, trials are a very visible and theatrical means of demonstrating concepts and narratives of (in)justice. The ‘actor’ who has the most compelling performative strategy will succeed in convincing his target audience of his narrative. Through analyzing the roles played by the various actors (suspected terrorists, lawyers, judiciary, victims, media, etc.) in these trials, a fresh perspective will be provided at their judicial, political and social impact.

We already analyzed and described different contemporary and historical trials like the Lockerbie Trial, the Guantanamo military tribunals and the Zacarias Moussaoui Trial.

Now, we will apply these insights to the Breivik Trial that will reach its verdict Friday the 24th of August. Thanks to the Norwegian Police Academy, the Oslo District Court and the Dutch embassy in Norway, we are able to conduct interviews and inquiries into the impact and effect the verdict has on coping mechanisms of people involved in the trial, in- and outside the courtroom.

On this blog, we will give you updates on our proceedings in investigating the ways the Breivik Trial, especially the verdict, affects public coping mechanisms. We will conduct a number of interviews and inquiries dealing with two major questions:

  1. How does the trial help in furthering the classical goals of a criminal trial: retribution, incapacitation, prevention, deterrence, and possibly even rehabilitation?
  2. How does the trial help in assisting different groups in society in coming to terms with their feelings of loss, stress, anger and their need for assurance and security, e.g. how does the trial affect people’s coping mechanisms?

We will conduct interviews with attendees in and outside the courtroom, with victims and their representatives, with lawyers and with judicial officials.

In this sense, we hope to contribute to the ongoing debate on the uses, abuses and necessity of criminal law, criminal prosecution and in the end, we hope to restore faith in criminal trials as a theater where the different stakeholders in the trial let themselves be educated by the basic principles of a free and secure society.

We will publish the results of our interviews and inquiries on this blog and will also make the questionnaires available after concluding this research.

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