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
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