Thoughts on justice and closure after July 22 – PRIO Blogs

From January 18 to 21, Norwegian terrorist Anders Behring Breivik will see his request for parole decided by the Telemark District Court during a four-day trial.

In 2012, he was sentenced to preventive detention for a period of twenty-one years and a minimum period of ten years for the terrorist attacks of July 22, 2011. He was sentenced for the murder of 77 people – most of them young people and children – and for the bombing of the government district. He has now served the minimum 10-year sentence.

The case itself will be argued in a temporary courtroom located in the Skien prison gymnasium. The public prosecutor will seek to place Breivik in indefinite preventive detention on the grounds that he remains a danger to society.

The walls of Skien Prison, where a temporary courtroom is set up for the Telemark District Court. Photo: Private

While there is no chance of Breivik succeeding, for survivors and those bereaved, just being faced with the prospect of another trial is both terrifying and provocative.

This intervention builds on the perpetrators’ engagement in the July 22 perpetrator trials in 2012, 2016-17, and 2022, as well as in transitional justice processes and war crimes trials after mass violence. In the “LAW22JULY: RIPPLES: Rights, Institutions, Procedures, Participation, Litigation: Embedding Security” project, we explore the legal ripple effects of the terrorist attack (including blogging about contested closures, disputes around monuments memorials and security after the bomb).

Here we reflect on ways of thinking about legal justice after extremist violence. We examine the meaning of post-terror closure in liberal democracies when the ability of perpetrators to remobilize the law is a built-in feature of the rule of law. As illustrated by the failed attempt by state prosecutors to ban the filming of Breivik’s testimony, balanced media coverage remains difficult. Similar considerations apply to academic research.

At the same time, documenting and analyzing the legal consequences of July 22 is at the heart of our societal mission.

Shoshana Felman points out that “the promised exercise of legal justice – justice by trial and law – has become the most appropriate of civilization [and] meaningful response to the violence that hurts her. While a criminal trial that establishes the facts and assigns individual guilt and responsibility is important, it is not an exclusive requirement moving forward.

The relatively quick criminal proceedings after July 22 were early on considered successful not only in terms of criminal justice goals (retribution, prevention, maintenance of the rule of law), but also for their contribution to “closing in the society”. Yet the 2012 trial did not “end” settlement of criminal liability for the 2011 terrorist attack. The legal settlement of scores is not an event of the past; rather, it is a process that also occurs in the present – ​​and in the future.

After the verdict, then-Prime Minister Stoltenberg proclaimed that the courts had “passed the test”. Looking back, it’s clear that the 2012 trial wasn’t perfect. Yet the magnitude of the lives lost, the health and safety shattered, the political and psychiatric dimensions of the abuser’s mental health, the individual, local, national and international injuries dealt with, the attention mass media and public, and the defendant’s incendiary judicial performance made the process an extremely difficult undertaking.

So when Breivik’s defense attorney, Geir Lippestad, argued in 2021 that as a country we had “settled” the issue of liability with this lawsuit, several commentators disagreed, also noting that the law itself was insufficient to settle disputes over political accountability. .

But perhaps it all went as smoothly as it could at the time: the trial was a significant step forward in terms of victim participation: the courts facilitated an unprecedented degree of participation by lay people and victims who testified against Breivik managed to meaningfully participate and regain equality. The formal processes underlying the trial as well as the formal institutional structures provided space for engagement and empowerment rather than alienation.

An important aspect here was the presence of the terrorist without his armor – metaphorically and physically speaking: Breivik was not allowed to wear his notorious uniform; he was obviously unarmed and he was not allowed to spread his propaganda indefinitely. The bereaved parents said that “he will be locked up all my life and he will never be able to walk free”. Survivors stressed that with his sentencing, “we won’t meet him on the street again – we won’t even have to think about what’s going on.”

This brings us to an important observation: the assignment of responsibility and punishment did not mean that the terrorist would be unable to mobilize the law again. To that end, the criminal legal response to the July 22 terrorist attack is gradually turning into a series of legal proceedings and court cases, with seemingly no end in sight. What does this mean for how we think about legal justice after an atrocity?

In 2015, Breivik sued the state for violating Article 3 (the prohibition of inhuman or degrading treatment or punishment) and Article 8 (the right to respect for private life) of the European Convention on Human Rights. of man. Specifically, his allegations related to the solitary confinement regime – the most extensive solitary confinement regime ever used in Norwegian prisons – as well as the restrictions on his ability to communicate with his supporters and contact others, including his victims. To the nation’s shock and outrage, Breivik won in the Oslo District Court in 2016. However, he lost the appeal in the Borgarting Court of Appeal and the Norwegian Supreme Court refused to appeal. hear the case in 2017. In 2018, the European Court of Human Rights dismissed the case. This protracted legal process was experienced as difficult by those directly involved as well as by the government and the public. The process was widely seen as an abuse of the legal system, with the media widely reporting (and ridiculing) the frivolous nature of the allegations, that the terrorist complained about cold coffee, lack of nicotine and bad tasting cooked food. .

The entrance to Skien Prison, where the ongoing trial is taking place. Photo: Private

In 2022, we face a new court case (which will likely include appeals). Breivik’s request will fail and he will remain in protective custody.

But following the 2015-2018 case, the current legal process also represents what many feared a decade ago: that those affected, and the Norwegian public as a whole, will face an infinite number of legal procedures. The terrorist will attempt to use the safeguards offered to him by the Norwegian constitution and criminal law system as a platform, an institutional stage and a megaphone from which he can spread his ideology and communicate with his supporters. Even though he won’t succeed, he draws attention to himself in a way that could still strike fear among those affected by his crimes.

On the other hand, perhaps this continued legal mobilization will evolve into a different dynamic: in 2012, Breivik did not appeal the verdict because, as he stated, he did not accept the legitimacy of the Court.

Yet today, a court case has become the only way for him to physically present himself before the world and remind them of his existence. Although this also inevitably changes his project. As Breivik goes to court again, he finds himself entangled in an institutional and procedural framework that works against him. Perhaps more than anything else he is a mouthpiece for the rule of law: by constantly seeking free legal aid, investing in testimony and legal strategies, and articulating claims in accordance the substantive and procedural requirements of the Norwegian legal system.

Going forward, it is not inconceivable that the courts will support Breivik’s claim that the solitary confinement regime under which he is serving his sentence amounts to inhuman and degrading treatment. At the same time, for each new petition he files and for each legal treatment of his claims, the public and the media will probably grow weary. His ability to create fear through a public presence will fade.

This intervention is not an attempt to trivialize the burden and pain that Breivik’s request for parole – and the prospect of repetitive litigation – engenders. Yet these processes might, on some level, offer the consolation that the very cogs of law he sets in motion represent in themselves a rejection of the terrorist’s plan to undermine the institutional foundations of Norwegian society.

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