Terror on Trial: A French Ethnography

Since 2017, we have been conducting ethnographies of French terror trials in research financed by the French Ministry of Justice / CNRS. The originality of our methodology lies in the pluri-disciplinary nature of the research team, which included an anthropologist, a political scientist, a judge, and an international lawyer. Together, we have observed hundreds of hearing days. As opposed to doctrinal legal research on terrorism that focuses on studying legislation and selective precedents, we consider the social interaction of the actors and the empirical context of judicial practices from courtroom scenes themselves. Beyond the empirical assessment of such a method, the analysis that emerges goes beyond simplified dichotomies, offering a nuanced, and sometimes contradictory, analysis of the law and practice. During our research we identified three generations of trials.

(1) The Magistrate Courts’ Laboratory: Designing the Architecture

The ‘first generation’ of jihadist trials (2015-2018) took place before the 16th chamber of the Paris Magistrates’ Court, which has centralised hundreds of cases with up to ten years imprisonment. This Chamber operated as the laboratory that designed the judicial response to jihadism. It was forged on broad preemptive approaches, undefined notions of dangerousness and radicalisation, which had been gradually experimented, shaped, and practiced through a close collaboration between the investigating judges, security services, and the prosecution. Entrusted with growing authority and resources, all actors have become specialized in jihadist networks. Yet, in the aftermath of major terrorist attacks, the cases were transferred to the Assize Court, to ensure higher punishment.

(2) The Slow Justice of the Terrorism Assize Court

Assize court’s proceedings are characterized by their oral and protracted nature. The long interrogations by the judges, the prosecution, and civil parties (victims), in which the accused has a central role, offer rare opportunities to hear about the radicalisation process as told by the actors and their close circles. This Slow Justice procedure had an unexpected, reversed, consequence: the judges imposed significantly lesser penalties from those requested; the trial judges openly resisted the prosecution policy.

Our data shows how lower jurisdictions, acting in a transnational context, can offer stronger resistance to state policies compared to supreme courts. This is due to the routine, banal nature of their function and their direct interaction with the accused persons, combined with the judges’ professional ethos and notions of judicial independence. Unlike supreme courts, whose role is more visible, and therefore subject to constant scrutiny by political branches of the state, lower courts can operate in a more distant, independent space. Far away from the centre of power and the media – they can resist preventive policy and promote alternative approaches, such as rehabilitation, through fact finding and interpretations.

(3) The ‘Trials for History’

The Charlie Hebdo, Bataclan and Nice trials involved thousands of victims. Modulating criminal procedure ‘from within’, these trials introduced an important restorative dimension, significantly open to victims, political actors, social scientists, and the expression of the accused. Our premise is that these trials may be seen as a new paradigm of mass crime prosecution, for which civil law criminal procedure is particularly adapted.

The Bataclan trial included over 2,500 civil parties (victims) and 400 lawyers.  The first five weeks were devoted to the deposition of the civil parties. If these did not contribute to fact finding, the accumulation of individual stories formed a collective narrative of shared trauma. While it was not obvious the defendants would participate in this justice project, all but two answered the judges’ interrogations and had multiple exchanges with the victims that triggered strong emotions. In seeking to understand, civil parties called to the stand witnesses of context – including politicians and academics – to shed light on the socio-political context. This undertaking by the French criminal court to fulfil the ‘right to truth’ once again evokes transitional justice, in the same way that truth commissions can expose the involvement of the state apparatus in repression.

Theorising Court Research: Based on this research experience and elsewhere, I suggest developing a conceptual and methodological framework to study courts based on four dimensions: (1) The dynamics of legal doctrines (2) The role of the human actors; (3) The impact of the institution, and (4) Geo/political factors. This method is grounded in empirical observation and seeks to capture how the practices and legal choices are impacted by the power dynamics and interaction of the actors and by the structure of the institution, including by legal bureaucracy, and their trans/national political environment. This is developed in a forthcoming book (Cambridge’s Studies in Law and Society).