Expert Meeting Report on Terrorism Trials as Theatre: A Performative Perspective.
On 30 March 2011, ICCT hosted the Expert Meeting: Terrorism Trials as Theatre: A Performative Perspective. The meeting was organised in cooperation with the Research Theme Group ‘Terrorists on Trial’, based at the Netherlands Institute for Advance Sciences (NIAS). The meeting attempted to apply a performative perspective to three well known and recent trials in different parts of the world: the trials against the Dutch Hofstad Group, the Mumbai 2008 Terrorist Attack Trial and the Guantanamo Military Tribunals. As such, the Expert Meeting did not concentrate solely on the immediate judicial performance of the magistrates and/or the defence; instead, the trials were put in their wider sociological context, adopting notions of social drama and communication sciences.
Dr. Beatrice de Graaf, ICCT Research Fellow and member of the NIAS research group, started the meeting with an introduction to her paper: ‘What makes a terrorism trial work (or fail)? A performative perspective on terrorism trials in democratic countries’. In this paper, de Graaf proposed a new way of looking at terrorism trials: through a performative looking glass. Terrorism trials are in essentia political trials. This implies that terrorism trials in most cases involve show elements, because they are almost inevitably tangled with political disputes. Indeed, the whole crime of terrorism, to start with, is a political concept and an essentially contested one as well. Terrorism trials always deal with suspects that pose a political challenge to existing rule – or are at least perceived as posing that challenge. What counts is not that a trial is labelled a ‘show trial’, but the end that the ‘show’ serves. In her paper, she aimed to demonstrate that a trial serves 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. Justice is a means of social control, as claimed by classical theory. As a consequence, terrorism trials are a very visible and theatrical means of demonstrating concepts and narratives of (in)justice. The one who has the most compelling performative strategy will succeed in convincing his target audience of his narrative.
The Dutch case:
The Hofstad Group The first presentation was delivered by a Dutch judge who presided over the Dutch Hofstad group trial. According to the judge, judges do not and should not have political agendas; they mete out justice in terrorism trials like in any other case. They apply rules, interpret facts and legislation and reach a verdict. However, he admitted that the arrests of the Hofstad group started as a spectacle and during the trial it became obvious that not only its members’ actual deeds, but also their ideology of jihadism was being scrutinised. The defendants’ lawyers even labelled the trial a ‘witch trial’. The judge underlined that neither he nor his fellow judges wanted to turn the trial into a judgement of ideology or faith. Nevertheless, it was this ideology that pushed the suspects to target the rule of law and public order; a threat from which the public needs to be protected. The Hofstad group exemplified a new threat in the Netherlands that stirred up emotional responses to the extent that parliament did no longer accept acquittals based on lack of evidence for concrete preparatory actions. When, in earlier cases, terrorism suspects were acquitted, the Minister of Justice had to come to the parliament to defend this ruling. In the verdict of the Hofstad group case, a distinction was made between peaceful and violent extremism. Four defendants were acquitted because they had not attempted to further the goals of the network in a violent matter. They were only violent extremists in thought, not in practice. In the end, therefore, the Judge concluded that the Hofstad group trial was not a completely regular trial. It was a political one, since the suspects were on trial for politically motivated actions.
Prof. Dr. Frank Bovenkerk discussed the dramaturgical perspective on terrorism trials. He agreed with the typology of show trials De Graaf presented. He argued that, in the Dutch case, most trials are of the not-so-dramatical type. Suspected terrorist do not attempt to make a major show in court, nor does the government. The defendants are tried like regular criminals. Hence, as a criminologist, Bovenkerk argued that the best response to terrorism is prosecuting terrorism suspects for the concrete criminal acts they perpetrated, not for something as difficult to define and proof as violent extremism. Perpetrators should be tried for hijacking, homicide, and/or bombing. Not for the crime of terrorism. One of the arguments used in favour of trying people on counts of terrorism(-related) activities (art. 148) is that the sentence would be higher. But even the killer of Van Gogh, Mohammed Bouyeri got life-imprisonment not for terrorism, but on the count of murder. Thus, Bovenkerk argues, stick to crime itself; framing criminal acts as acts of terrorism unnecessarily plays down the criminal act.
Much of the show element depends on the institutional setting and legal procedures for criminal trials. In the Netherlands, neither judges nor witnesses are selected, trained and prepared for their media performances, remarks ICCT Research Fellow Prof. Dr. Edwin Bakker. However, in the US’ adversarial system, this performative element has a much more central position. So too in Germany, where defendants have much more room for manoeuvre with regard to their defence. In the Netherlands, trials are relatively monotonous; the judge is in charge, the dossier has been read preliminary and the investigation has been covered in a pre-trial stage. In his last words, Bouyeri could have turned his trial into a show, however he did not. This point was confirmed by the public prosecutor in the Hofstad group case: ‘We work from the suspicion point of view, which might be based on information by the intelligence agency. We arrest them and put them in prison. We make the decision to put them in prison. Not as in Germany, where the judges decide upon that.’ In short, in the Netherlands, trials have become a paper exercise since 1962. Everything is taken care of, concluded even before the trial starts. Moreover, judges and prosecutors belong to the same order of magistrates. This differs greatly with for instance the US, where prosecutors are civil servants. In India, prosecutors may even be independent contractors.
The Indian case: The Mumbai 2008 Terrorist Attack Trial
An Indian special prosecutor presented a paper on the way he handled terrorism cases in his home country. In his view, terrorism is a war by proxy. It is carried out to destabilise the order, devastate the economy. He pitied the fact that there is no legal universal definition of terrorism and he called upon the EU and UN to strive for such a definition.
The special prosecutor presented the case of Ujjwal Amir Kasab, the sole surviving terrorist of the Mombai 2008 blast. The special prosecutor, an independent contractor, was appointed in this case as public prosecutor. 292 Witnesses came into court, two persons testified on video, from Canada and Chicago. On 25 February 2009, Kasab was charged with several criminal acts, including multiple murders. On 16 December 2009, the trial was completed, within seven months.
The main question in this case was: how can we bring the main conspirators to justice? The prosecutor explained that Pakistan’s refusal to extradite was a major obstacle. The Indian investigating agencies were not able to obtain the necessary evidence. Hence, the special prosecutor emphasised the necessity of working together, creating a global warrant regulation system, an extradition-system within the UN. For the prosecuting country, it would be essential to give preference to terrorism trials over others. In addition, he rejected the notion of a show trial. In India, there are no special terrorist laws. Fair trial prevails, even for terrorists, the prosecutor argued. Mr. Kasab, ‘the lone surviving terrorist’, received two lawyers. Nor was it a political trial, concluded the prosecutor; only religion played a role in it.
Terrorism-researcher Dr. Alex Schmid suggested that terrorism should be defined as ‘the peace time equivalent of war crime’. Before discussing the show element in terrorism trials, Schmid argued that it is important to note the fact that the terrorists staged their show of shock and horror first. Terrorists are eager to win audiences; they aim to get the world’s attention via their deeds. And indeed, the Mombai terrorists put on a ‘show’ for over sixty hours. The trial lasted long as well, for over two years. But you can never match the show performed by the terrorists through their violent deeds covered fully by the media. The media provide an audience to terrorist attacks. An asymmetry exists between the terrorist show of violence and the subsequent unspectacular show established by the prosecution.
Guantanamo Military Tribunals
A former prosecutor for the Military Tribunals at Guantanamo Bay delivered a presentation on the show element in these trials. He underlined that, for the political leaders, the trial that mattered most was the trial ‘in the eyes of the public opinion’.
It was a very unusual court; the Guantanamo Military Commissions were installed, signed and ordered by the President on 13 November 2001. It was dubbed ‘military order nr. 1 to try terrorists who attacked the US’. These commissions operated at the intersection of criminal law and international law. The former prosecutor argued that they were not so much criminal courts, but looked more like international tribunals due to the questions and problems raised. The cases were selected by the prosecutor, but the President himself had to approve them, which made it a very political process. All prosecutors were put through intensive media training to make sure that they could deal with the ensuing attention and were able to explain the reasons for holding these cases.
The trial itself was full and fair, but to the White House, it was important that the tribunals produced good results. With a jury, however, it is very difficult to project, let alone guarantee the outcome. Therefore, the former prosecutor argued, many politicians were not convinced that the trials would produce a positive political pay off. They proposed to hold the defendants indefinitely, detain them like prisoners of war. The former prosecutor welcomed President Obama’s recent proposal to proceed with the Military Commissions as a step in the right direction. The prosecutors were strongly against applying guilty by association methods, and against infringements on the first amendment. They therefore decided to charge the defendants with conspiracy to or aiding and abetting terrorism. It was considered that such commissions were thought to be a swift and quick solution to an otherwise lengthy trial in a civilian court. This, however, turned out to be a miscalculation, since it took much longer than expected to provide the suspects with a full trial.
During the concluding discussion, it became evident that the US perspective on trials is different from the European one. Many Europeans are at unease with viewing trials as a theatre, whereas in the US, it is generally accepted to view trials as a ‘fight’. Europeans have an inquisitorial system where a panel gauges the truth. American lawyers, however, go to acting schools to become better performers. This is of course a crucial difference. Many in the US feel that people want to be entertained, they want to hear a catchy story. The public, and hence the jury, will vote for you if they like your story better. ICCT Research Fellow Dr. Quirine Eijkman commented that, unfortunately, the story of Guantanamo Bay became a story of enhanced interrogation methods, of repeated claims of torture and brutality rather than a story of full and fair trials for terrorism suspects.
In her concluding remarks, Dr. Beatrice de Graaf referred to the Dutch example of a non-show in the courtroom, with magistrates doing their utmost to refrain from turning the trial into a theatre, a public spectacle. This is however facilitated by the fact that the Netherlands has a different, inquisitorial judicial system as compared to for instance the US. Furthermore, terrorists were not widely supported, nor willing or able to deliver a good show. In the struggle against terrorism, which centres very much around communication and (counter-) narratives, trials are benchmarks in a fluid society, characterised by shifting boundaries and loyalties. Hence, terrorism trials almost always present a show. Actors give a performance of what they deem justified. They seek to convince their target audience(s) of their narratives of justice. Whether it is a narrative of injustice as perpetuated by the conflict between India and Pakistan, a narrative of justice in the face of 9/11, or a narrative of justice and retribution as demanded by the media and public opinion.
The legal experts involved in terrorism cases – judges, lawyers and prosecutors – should be aware of the performative aspects and the theatric elements in those court cases where political visions are expressed. The same is true of experts and witnesses that are called to testify in court. It is the performance of all the actors involved that decides who convinces the audience, be it a jury, a specific group or society at large. Winning a court case is not just about a legal victory but also about performance and hearts and minds. The (legal) experts involved should be well prepared for this, for instance through (media) training and awareness raising.