International Journal on Criminology Volume 7, Number 1, Winter 2019/2020 | Page 124

The Release of Jihadists from Prison: Unanswered Questions from the 2000s How Can We Escape This Nightmare? Systematic Deportation of Foreign Nationals and Dual Nationals Legislators must be encouraged by the government to look again at the forfeiture of French nationality and the deportation of foreign nationals found guilty of terrorist acts. The question should be addressed dispassionately, but in the full awareness, based on recent events, that any individual released from prison could perpetrate another attack or, on a more passive level, recruit more individuals to the Salafist cause, the breeding ground of potential martyrs. Every attack carried out by a dual-national repeat offender will undermine the executive’s position until the point that it becomes untenable. An attack with sufficient emotional impact on the public could trigger a huge reaction, possibly with serious consequences. Agreements prohibiting the use of torture or capital punishment for those stripped of their French nationality and sent back to their countries of origin, or help in constructing specialized holding centers, could facilitate the execution of these deportations. These agreements could be validated at a supranational level by the ECHR (European Court of Human Rights). Furthermore, the majority of countries signing such agreements would be non-secular states and would therefore be far more suitable and have far greater legitimacy than France in attempting to deradicalize the individuals concerned. The Treatment of Jihadists by the Courts and the Use of Individualized Sentencing The Arpaillange Report in the 1980s stated that: “The purpose of criminal sanction is at one and the same time to punish, to intimidate, to eliminate or at least temporarily neutralize, and to reform and rehabilitate the offender, while simultaneously acting as a deterrent to their would-be imitators. In reality, these varied functions are hardly compatible; the courts impose measures which often neither intimidate nor rehabilitate. The courts no longer dare to punish, they lack the means to deal with offenders, with the result that these crossed purposes render the legal process equivocal, at times perverse, and ultimately ineffective ...” The eminent criminal law expert, Jean-Claude Soyer, has pointed out that, with the new Code pénal introduced in the 1990s, “symbolically, minimum sentencing and attenuating circumstances no longer exist. A repressive judge is now constrained only by the legal and theoretical maximum; as these are often set very high, he is in effect allowed considerable discretionary powers. This conjures up— oh what irony!—an old adage from the Ancien Régime: ‘In this realm, all punishment is arbitrary’.” In terrorism cases, the individualization of sentences by judges must be brought under control. A person cannot be guilty of “slight” participation in a 119