European Centre for Counter terrorism and Intelligence Studies, Germany & Netherlands – ECCI
Courtroom or stage? Performance versus a fair trial in the Paris attacks case
ICCT ـ On 13 November 2015, nine terrorists carried out a series of attacks across Paris, including at the Stade de France, cafés and the Bataclan theatre, killing 130 and wounding more than 400. Six years after the deadliest attack committed in Europe by the Islamic State, the largest criminal trial in France’s history began on 8 September 2021 in front of a Specially Composed Assize Court, comprising professional judges rather than a lay jury.
This trial, involving twenty defendants, more than 300 lawyers, 1800 civil parties, and a million pages of documents, is expected to last until June 2022. Salah Abdeslam, the only surviving perpetrator of the Paris attacks, is on trial for criminal association of a terrorist nature, murder and attempted murder in an organised group in connection with a terrorist enterprise. He had allegedly originally planned to carry out a suicide attack along with six of the other attackers, but did not go through with it. Thirteen other defendants present at trial are accused of complicity in the murders or criminal association of a terrorist nature. The last six defendants are tried in abstentia: five of them being suspected commanders or bombmakers who are presumed dead, as well as Ahmed Dahmani, the Belgian-Moroccan suspected logistician of the Paris cell currently serving a prison sentence in Turkey, with Turkish authorities having refused to transfer him for the trial.
Terrorism is a form of political theatre where terrorists’ actions expose their visions of (in)justice, adding a political dimension to terrorism trials. In the course of this trial, there are performative elements to the roles of each actor involved telling competing narratives of terror and (in)justice to audiences inside and outside of the courtroom. In light of the potential for terrorism trials to become a political arena instrumentalised by different parties, this perspective explores the ways in which the performance of actors in the courtroom of the ongoing Paris trial may impact the defendants’ right to a fair trial, as well as civil parties’ access to justice.
The right to a fair trial
The right to a fair trial is a fundamental right protected by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which ensure that persons involved in legal disputes are tried through a just process. There are several components to this right, notably the right to be tried by an independent and impartial court, to be presumed innocent until proven guilty, and for each party to defend themselves effectively and with equality of arms (requiring a fair balance between the parties, notably in their opportunities to call and cross-examine witnesses). France has transcribed these fair trial guarantees into its domestic legislation, including the Declaration of the Rights of Man and of the Citizen and the Code of Criminal Procedure; and is also bound by the European Convention of Human Rights (ECHR), which further protects the right to a fair trial.
France allows defendants to be judged by default if the accused is absent without a valid excuse at the opening of the hearing, as is the case for six defendants in the present case. Most countries and international tribunals prohibit in abstentia trials in light of the potential infringement upon the accused’s right to be present at their trial to challenge allegations against them. However, this right is not absolute and in abstentia trials may remedy indefinite trial delays, which would adversely impact victims and the administration of justice. The ECHR and European Court of Human Rights jurisprudence provide necessary safeguards which have been embedded in French law to ensure such trials are fair, including that the accused should be aware of the proceedings, be legally represented, and have an automatic right to retrial in their presence, however not to appeal.
A performance by the defendants
Narratives of injustice
A first performative strategy that terrorist suspects may adopt in a trial is to present themselves as martyrs who are unfairly treated by the executive and the judiciary. Thus, defendants often complain about the conditions of their imprisonment at trial. Leaders of the Red Army Faction tried in Germany between 1975 and 1977 did so with the aim of gaining empathy from the left, and more recently, Anders Breivik complained about prison conditions. On the first day of trial, Abdeslam complained that the defendants were treated “like dogs” in prison. Other defendants also adopted this strategy and discussed their solitary confinement, and lack of healthcare in prison.
In the same way, terrorist defendants may challenge the legitimacy of the justice system and seek to discredit the trial as unfair. Al-Qaeda member Zacarias Moussaoui notably shouted to United States judges that his trial was a “circus”, and a defendant in the Dutch Hofstad case declared that Sharia was the only legal system they acknowledged. In the first days of the trial, Abdeslam similarly told the judges: “you say that we are presumed innocent, but we are already condemned, even if I do not acknowledge your justice”. More recently, Osama Krayem and Mohamed Bakkali have refused to answer questions, stating that the trial was an “illusion” of fair justice, and that nothing they could say would change their sentence. Krayem even refused to appear for his own interrogation, before the presiding judge’s warning that he was obliged to be present. Civil party lawyers have criticised the accused’s choice to stay silent, pleading for the victim’s right to hear the accused’s accounts. Mohamed Abrini, Sofien Ayari, Abdeslam, Bakkali, and Krayem have also refused to appear at trial altogether as an act of protest against the use of anonymous witness testimony in the trial.
Trial as platform for propaganda
In order to prevent terrorist trials from turning into political “shows”, former United States Vice President Dick Cheney was opposed to trying terrorists before civilian courts, fearing that it would give them a podium to spread their ideology. This concern has sometimes come true in terrorism trials around the world, such as in the case of Breivik, who committed the Norway attacks specifically with a mind to propagate his violent extremist ideas during his trial. Concern that defendants in the Paris trial would instrumentalise the trial to serve their religious convictions was also voiced by media and victims. This fear materialised from the start as Abdeslam appeared to use the courtroom as a platform for Islamic State propaganda. Thus, on the very first day, when asked his profession, Abdeslam responded: “I abandoned any profession to become a fighter of the Islamic State”. Later, he affirmed his agreement with their ideals of establishing an Islamic order and enslaving minorities, and denied the massacre of the Yazidis. Abrini also showed his radicalisation, affirming that “the divine law of Sharia is above that of men” and that Islam as taught by the prophet was incompatible with democracy.
Furthermore, on several occasions during the trial, Abdeslam sought to justify the attacks through provocative statements. He maintained that the terrorists were his “brothers”, and that he approved of the attacks only if they were put in the context of French interventions in Iraq and Syria against “Muslims”. This justification is the exact same as that claimed by the terrorists who attacked the Bataclan on 13 November 2015, and was also put forward by Abrini at trial. Further, when facing Muslim civil parties at the stand, Abdeslam assured them that targeting Muslims “was not their intention”, as only “the infidels” were targeted.
Hence, this second performative strategy of using the trial as a stage for propaganda while narrating perceptions of injustice suffered at the hands of France, seems to have been adopted by Abdeslam and Abrini only.
An abuse of the right to be heard? Limits to the right to a fair trial
One could question whether these provocative statements constitute an abuse of defendants’ right to be heard and to be present at trial, comprised in the right to a fair trial. In fact, the defendants’ conduct in the courtroom could at times be qualified as provocative and disruptive, as it interfered with proceedings in several ways: by disrespecting the judges; refusing to cooperate with proceedings rules and giving political speeches instead of responding to questions; shouting from the dock; and interrupting civil parties. The right to be heard is not absolute and interference with the administration of justice constitutes an offence under French criminal law, punishable by two years in prison. Further, Abdeslam and Abrini’s comments at times could arguably amount to an apology for terrorism under French law. Abdeslam’s comments vilifying non-Muslims could constitute an incitement to hatred, violence or discrimination on the basis of religion, which is also an offence under French law. Hence, it appears that some defendants may be undermining the rule of law and the administration of justice by misusing their fair trial rights, particularly their right to be heard.
The role of the media
As video recordings of the current trial will not be freely broadcasted to the public for fifty years, according to French legislation, the public relies on accounts of the proceedings reported by the media. Terrorism trials are often highly politicised as the public feels they have a stake in the verdict, which may lead to certain media outlets dramatising the words and acts of defendants to influence public opinion. A virulent press campaign against an accused may affect the fairness of the trial. The 2021 Kyle Rittenhouse case in the United States has depicted the ways in which media on different ends of the political spectrum may report facts in extremely different manners, at times infringing on the accused’s presumption of innocence in the eyes of the public.
There is also a growing concern that the media is providing terrorist defendants with a platform to spread hatred. The concern of preventing this while covering the proceedings accurately was notably voiced by the media in the Brenton Tarrant case. Similarly, in the current Paris trial, the media have largely covered the defendants’ every word and attitude in the trial. Some have criticised this stance of the media as offering defendants, notably Abdeslam, a greater platform to inspire others. Thus, there have been debates regarding the balance between the duty and freedom of the press to inform the public and the ethical standards in doing so, without providing defendants with more coverage. Similarly and paradoxically, in this piece, the exact words of defendants were recounted and broadcasted for the purpose of analysing their performance in court.
A performance by civil parties
This trial involves around 1800 civil parties, including hundreds who have been wounded in the attacks and families of the deceased. Under French law, civil parties have the status of victim (hence they must have suffered damages caused by the offence) and seek redress, although in terrorism trials, the court itself may not order compensation. Civil parties may be assisted or legally represented in the trial, have a right to intervene in the proceedings, and make a declaration before the court of the damage suffered by the offence (although not as witnesses). Civil party lawyers may question witnesses and defendants throughout the trial. Terrorism trials offer a stage for victims and their families to be heard and to confront their offenders. In the current Paris attacks trial, civil parties have conveyed their need to build a collective story, a common heritage shared with the broader public to move forward as a nation, thus adhering to transitional justice ideals. Some victims wished to testify in order to proudly promote French “infidel” values of liberty, equality and fraternity as a “counter model of fanaticism”. Moreover, many victims commended the fact that the defendants were judged through a democratic and fair process. Most victims, especially of Muslim faith, aimed to challenge the beliefs and radicalised Islam of the accused. Hence, most civil parties in this trial have adopted a strategy of offering a counter-narrative recounting the horror and injustice of the terrorist attack both to the defendants and the audience, and confronting the defendants’ radicalised ideas with democratic values and ideals. Some civil parties may have likewise exploited and at times misused their right to be heard, by going further than merely recounting the harm suffered by the attack. Presiding judge Jean-Louis Périès did not hesitate to interrupt some civil parties by reminding them of the presumption of innocence, the principle of adversarial debate, and that victims should address the court rather than defendants.
Fair trial concerns
Since the beginning of the trial, the defence has, on several occasions, denounced fair trial concerns. The timing of testimonies has been particularly questioned by defence lawyers. In cases such as this historic trial with a large number of civil parties, their right to be heard must be balanced with defendants’ right to a hearing within a reasonable time and with equality of arms, comprised in the right to a fair trial. Although the timing of the defendants’ interrogation is not codified in French law and the Assize Court’s president is free to decide on the calendar, in general, defendants are heard at the start of the trial. In the current trial, investigators, experts, witnesses, and civil parties testified for more than five weeks at the start of the trial, while the preliminary interrogations of all fourteen defendants only lasted four days. The first interrogations of the defendants regarding the merits of the case only took place after January 2022, more than three months after the beginning of the trial and two months after civil parties’ testimonies. Similarly, defence lawyers have denounced the imbalance between the time afforded to questions by the prosecution and by civil party lawyers, in light of the large number of victims. This imbalance between civil parties and defendants could be argued to impede the defendants’ ability to present their side of the case effectively, and their right to a timely decision.
Further, the defence, sometimes supported by the prosecution, has raised concerns regarding the admissibility, credibility and reliability of evidence. Regarding witness evidence, they have notably criticised the last-minute decision to anonymise the testimonies of Belgian policemen in the Paris trial. The defence particularly questioned the policemen’s freedom to speak, as they gave their testimony by video link while in the presence of Belgian prosecutors and judges, and deplored being censored in their cross-examination by the presiding judge. Similarly, the defence denounced the absence of a Belgian judge who had been cited by Bakkali’s defence and decided at the last minute to reserve her explanations for the Brussels attacks trial. Lastly, the defence, sometimes supported by civil party lawyers, questioned the fairness of admitting into evidence a battlefield propaganda video in which Muhammad Usman appeared, and evidence collected by prison services while the accused was awaiting trial. However, the court admitted them into evidence subject to their examination during the adversarial debate.
The role of the court
Courts have the duty to dispense justice in a fair and impartial manner. To this end, judges retain tools to ensure the administration of justice. Firstly, the court may silence disruptive defendants. Citizens in a democratic society such as France are free to express dissenting opinions on the executive and the judiciary, however in certain instances where this prerogative is abused to disrupt trials and threaten the integrity of the proceedings, this right may be restricted. The ECHR itself provides for restrictions to freedom of expression in order to maintain the authority and impartiality of the judiciary.
Thus, judges may issue disruptive defendants with a warning that future occurrences could result in expulsion from the courtroom. International tribunals provide that the removal of an accused from the courtroom may be ordered in exceptional circumstances in case of persisting disruptive conduct, this conduct being construed as an implicit waiver of their right to be present at trial. However, it is often preferrable for defendants to attend the whole trial in order to safeguard their right to be present at trial, except in cases where removal would clearly uphold the administration of justice and rights of victims. In light of their disruptive attitude, judge Périès has on several occasions threatened to evict Abdeslam and Abrini from the courtroom for contempt of court. Secondly, French judges may order the accused to be brought to court by force, as Périès warned Krayem he would do for his interrogation day.
Moreover, by setting the trial calendar, French courts may determine how best to allocate time for civil parties and defendants and thus ensure the equality of arms. With the same aim, in cases in which cited witnesses fail to appear without a legitimate reason, the court may order them to be brought by the police to the court (though this does not apply to foreign witnesses) or may postpone the case to the next session, and may sentence them to a fine of up to EUR 3750. In the current case, the question lies in whether the Belgian magistrate’s wish to reserve her information for the Belgian trials in light of possible procedural faults is legitimate, which the court has decided to consider further at a later point. The defence has warned that it would ask to postpone the trial if the Belgian judge did not testify, considering her a key witness.
In the ongoing Paris trials of the 13 November 2015 attack, the different actors have adopted performative strategies to share their competing perceptions of (in)justice with the broader public. The presiding judge in this trial has so far managed to balance the tension between protecting fair trial rights of the accused and avoiding their misuse. In terrorism trials of this magnitude, the exceptional severity of the crimes must not be used as a justification to downplay concerns related to the admissibility of evidence and the right of defendants to be heard in an equal manner to civil parties. Instead, it is crucial to uphold the rule of law even in terrorism trials where defendants may fundamentally oppose such principles.