Criminal accountability of fascism

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By LARA FERREIRA LORENZONI & MARCELO SIANO LIMA*

When we consider the penal system as a pragmatic tool on special occasions, we do not do so carelessly.

There are two seemingly opposite temptations that plague anti-punishment critics: (i) to desire the complete liberation of all from the irrationality of the penal system; (ii) pleading the legitimacy of the demand for the use of this apparatus in cases that directly violate democracy and human rights. The fascist outbreaks of recent times, especially the episode of January 8, with the rise of the slogan “No Amnesty”, have made this distressing paradox even more evident.

“Democracy” has a series of meanings that vary depending on the political spectrum from which it is part. However, we think there is a common historical-social and meritorious point: the attempt (successful or not) to limit the exercise of power.

Fascism, on the other hand, an extreme right-wing authoritarian movement, in its various compositions throughout history, has as its basic characteristic the obsessive search for the purity of a certain group. It believes in the superiority of some, the “elect”, who must engage in a Darwinian struggle against “them”, the inferiors, to be subjected by force and, ultimately, annihilated. This political phenomenon, by essence, does not admit opinions that question it. In it, one does not quibble with the enemy: one eliminates him.

The question that arises is: how to deal with this within a dying democracy in which the penal system – with all its crudity and selectivity – is already in place? As critics and refractory to the State's power to punish, should we give up this device in this specific case? Would we once again be reproducing the infamous “punitive left”?

We'd love for the answer (and reality) to be simple. There are several relevant arguments on both sides, all worthy of attention in this debate. Without any pretense of exhausting it, we believe that those who stand in favor of criminal accountability for those who carry out serious offenses of coup and fascist content against the democratic regime from an anti-punitivist perspective are not naively giving in to the sacrificial song of the sirens. We know what the criminal justice system is, what it means in the capitalist structure of oppression and how it is systematically used against us.

The question goes deeper. We live in a country where the State of Malaise has never gone away. There is no solidified historical consensus on the repressed wounds that torment our collective authoritarian trajectory (mainly, colonialism, enslavement and corporate-military dictatorship). We did not have the political process of redeeming our dead. We did not perpetrate the Court of Memory of a dictatorship that, not by chance, has returned to bite our heels.

We are aware that the punishing monster is insatiable. Our intersection will not change their morbid appetite for swallowing bodies of a specific race and social class. Undoubtedly, he is incontrovertible. Therefore, whether or not we maintain a position that is fully “coherent” with our libertarian horizon, the fact is: it will devour us anyway. It is not the way we behave that defines the type of repressive state treatment to fall on us: it is the content of our confrontation (anti-fascist, anti-racist, anti-LGBTphobic, antigenocidal, for the improvement of working conditions, health, education, etc.) .

When we consider the penal system as a pragmatic tool on special occasions, we do not do so carelessly, blinded by the excitement of power and revenge. For us, it is first and foremost a question of survival. Is criminal law the best weapon against fascism? Definitely not. Is the only one? No, absolutely. Despite this, those who want to exterminate us will use, without shame, all means to do so.

Beyond police-punitivist common sense and a revolutionary stance without practical consequences, the material reality of the permanent state of exception is given and we need to deal with it. While this is the case, our immediate commitment is to life and democracy – with all the problems (and potentialities) that this signifier and its various meanings present.

It is not a question of fully throwing our emancipatory aspirations to the windmills of institutionality. We are not talking about a long-term method here. With one eye on the abolitionist utopian horizon and the other very attentive to the materiality of the present, which imposes urgent answers, even if they are not the most beautiful or ideally best, we follow this tortuous path, surviving and fighting for less merciless days, combining utopia with the immediate possible.

In these bestial times of financial totalitarianism, we, impure, profane, contradictory and thirsty for memory, admit: the blows come from all sides and the trenches are multiple. As long as necessary, critically and devoid of any illusions with the promises of modernity, we will not give up any.

*Lara Ferreira Lorenzoni, lawyer, is a doctoral student in Fundamental Rights and Guarantees at the Faculty of Law of Vitória (FDV).

*Marcelo Siano Lima is a doctoral student in Fundamental Rights and Guarantees at the Faculty of Law of Vitória (FDV).

 

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