On Wednesday 8 September 2021 one of Europe’s most awaited-for criminal trials kicked-off.  For the next 9 months the spot-lights will be on Paris: 20 defendants, over 330 lawyers, 350 surviving victims and the memories of 130 deceased will be at the center of what the French already call ‘the trial of the century’.

The trial will be closely watched and debated by many, in particular in my own country, Belgium, as many in the dock are Molenbeekois. But it will also gather major interest in other parts of Europe. Indeed, the trial will be an important test for criminal justice in Europe and for the core values that underpin it.

How can we respond to such terror and relentless bloodshed? What to expect from this trial? Yes, victims want answers, clarification, recognition and closure. What happened on 13 November 2015, and why?  And why could this horror not be prevented? But a criminal trial is not only about the victims; it is also about those being seated in the dock; it is about crime and punishment. Why and how should we punish in such a case?

Faced with human suffering of this scale, state punishment seems futile. As an instrument, punishment is bound to fail: deterrence does not work for those who are willing to die for their ideals. Moreover, even the world’s most renowned terrorism experts will have to acknowledge that there’s no magical recipe or silver bullet for “deradicalization”. So where do we stand then with our classical penal goals like re-education and reintegration? Jeremy Bentham once suggested that a punishment that cannot achieve its declared goals should not be imposed. Should the utilitarian conclusion in such cases then be that we should not punish at all?

But any punishment inflicted will also fall short: how many years of imprisonment suffice to right the wrong and restore the balance? No punishment seems enough to compensate for seemingly endless suffering and deep grief. Should Kantian retributivists then join the ranks of abolitionists, like Louk Hulsman, and agree with the latter that inflicting suffering through punishment should not be a measure of “… a hierarchy of values within a ‘national’ society”?

Acts of terror provide an ideal opportunity to question the utilitarian and retributivistic justifications of punishment. For some the solution is simple: we should think and act out-of-the-box. In August 2016, in the wake of the bloody attacks in Brussels Airport and Maelbeek, a Belgian criminal lawyer pleaded to reintroduce the death penalty (DS 1 August 2016). “Anyone who wants to destroy society permanently deserves the death penalty. I don’t find that barbaric.” What is the alternative?, he wondered.  “Do we have to put them underground and in a concrete bunker, airing them once a day? Without visitors, until they die at 75?” This lawyer created a misleading dichotomy as his so-called alternative to the death penalty is not an alternative at all: you will find neither capital punishment nor “life imprisonment in a concrete bunker” in the Belgian criminal law book.

However, many would probably feel sympathy for his proposal. On 19 December 2016 Donald Trump commented as follows on the attacks on a Christmas market in Berlin: “Today there were terror attacks in Turkey, Switzerland and Germany – and it is only getting worse. The civilized world must change thinking!”  He did not further explain in what ways the civilized world must “change thinking” but you can probably guess that our thoughts should go in the direction of a more repressive, “no mercy” response: release the brake.  Indeed, that was also Trump’s view on waterboarding: even if it doesn’t work, then they still deserve it.

The temptation is strong – for some perhaps irresistible – to react in an extraordinary way to extraordinary events. The death penalty seems to be the only appropriate punishment for those who want to destroy us. A punitive, “no frills” prison regime – in a bunker underground – seems proportionate for those who reject our civilization. According to some, an “enemy criminal law” – the term (“Feindstrafrecht”) was coined by the German penalist Günther Jakobs – should be developed for the enemies of society: a separate track of criminal justice that is distinct from “civil criminal law”. That is also what the Belgian criminal lawyer that we quoted earlier, seems to suggest.  According to him we are faced with “… another category of crime …Terrorists with one hard drive, and one indelible goal to destroy society: you can’t just let them back into that society. For that group, I have no moral problem with introducing the death penalty.”

The infliction of punishment takes place within certain boundaries, which set limits to the form and quantity of punishment. It is clear that some experience these boundaries as a strait-jacket, even more so in the wake of horrendous events, like the terror that has struck major cities across the globe. But these boundaries do not come out of the blue: they are part of a common European human rights culture. Punishment is therefore not just a response to crime; it also expresses and shapes a society’s identity. Indeed, as David Garland wrote in his book Punishment and Modern Society: “…the ways in which we punish, and the ways in which we represent that action to ourselves, makes a difference to the way we are.

This implies that our response to the “why punish?”- question in a case like the Paris trial that started last week, should not limit itself to issues of “just desert” or instrumental considerations of punishment’s effectiveness; rather we should ask ourselves how punishment – and the way we talk about punishment in Europe – can strengthen and affirm our common identity.

And, interestingly, there’s an important symbolism here, as this identity started to take shape in Paris, in 1789, with the storming of the Bastille. The French Revolution proved to be a point of departure for the slow development towards our current human rights culture and Europe being a “death penalty-free zone”.  Let us not forget about that in the upcoming 9 months: the boundaries that we have set to ourselves when we deal with crime, are not something to be deplored, but rather something to be celebrated. I find it difficult to imagine a more powerful message to those who violate human rights and reject the rule of law.

This blog post draws on some observations I first made (in Dutch) in the opening pages of “Straffen, slaven en standbeelden: een penologie voor het Europa van nu”.

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