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Permanent Emergency Powers in France: The ‘Law to Strengthen Internal Security and the Fight Against Terrorism’ and the Protection of Human Rights
January 22, 2018
On November 1, 2017, France introduced a new Counter-Terrorism Law ending a two-year state of emergency and making many of the exceptional measures taken under the state of emergency permanent law. Taking into account past practices of ethnic profiling displayed by the French police, the passing of the law constitutes a worrisome development and raises a number of concerns about France’s compliance with its human rights obligations. The paper discussed these implications of the new law in the wider context of counter-terrorism trends. Keywords: counter-terrorism, ethnic profiling, human rights, state of emergency
The threat of terrorism is considered one of the greatest challenges of contemporary times and informs policy changes all over the world. Recent terrorist attacks in Europe such as in Paris, London and Berlin have prompted the governments of many European states to pass new legislation aimed at the investigation of terrorist suspects and ultimately at the prevention of terrorist attacks. In the course of these counter-terrorism measures, human rights violations occur on a regular basis. European states have been widely criticized for indiscriminately freezing assets, blacklisting terrorist suspects and the reliance on witness testimony procured under situations of torture in other states (European Center for Constitutional and Human Rights [ECCHR], 2010; Human Rights Watch [HRW], 2010). Additionally, complaints of human rights violations have also been raised regarding the treatment of terrorist suspects in the domestic context. Most recently, France passed a law incorporating exceptional emergency measures into ordinary law. The following analysis considers the provisions of the law itself as well as its predicted effects on individual rights and assesses these from the perspective of international human rights law.
The Law to Strengthen Internal Security and the Fight Against Terrorism
The ‘Law to Strengthen Internal Security and the Fight Against Terrorism’ (Loi renforçant la sécurité intérieure et la lutte contre le terrorisme), adopted by France on November 1, 2017, ends the state of emergency that was in effect since the terrorist attacks in Paris in December 2015. However, the law retains some of the measures adopted under the state of emergency and incorporates them into France’s criminal and administrative law (Raj, 2017). The way the state of emergency played out in practice in the past two years can therefore serve as an indicator for how the newly adopted law will be implemented by law enforcement officials and the judiciary in order to predict its effects for the purpose of the ensuing analysis.
The new law encompasses a number of measures aimed at combating terrorism and preventing future attacks. Several of these are based on or very similar to measures taken under the state of emergency. Article 228 of the law provides for ‘individualized control and surveillance measures’ and effectively replaces the ‘assigned residence orders’ implemented under the state of emergency. Article 228 authorizes senior law enforcement officials to classify persons as threat to national security and as a consequence thereof to limit their movement to a restricted area requiring the person to report daily to a specified police station, inform law enforcement officials of changes in residence and to agree to wear an electronic surveillance device (Loi 2017-1510). The law also provides for the authority of prefects to establish ‘perimeters of protection’ allowing for enhanced security controls (Art. 226), to order the closure of places of worship (Art. 227), and for visits and searches of private property (Art. 229). Additional measures that are encompassed in the law but will not be further discussed here can be summarized under broadened legislation on surveillance, border controls and the retention of passenger data (Aolain, 2017).
It is important to note that the judicial oversight for the measures implemented by the law is very limited. Under the ‘individualized administrative control and surveillance measures’, the state is not required to disclose the evidence of criminal activity that serves as grounds for classification to the affected person. As a consequence, the person whose movement is restricted is hindered in his/her ability to formulate a defense. The measure can be renewed for a maximum period of one year (Raj, 2017). Similarly, the law allows police officers to conduct searches in a 10 kilometer radius surrounding international transportation hubs without prior warrant (Raj, 2017). The right to appeal these measures is limited thereby further decreasing the judicial review (Aolain, 2017).
Prediction of Effects: Experiences drawn from state of emergency
As many of the measures contained in the newly passed law are based on measures adopted under the state of emergency, it is reasonable to expect that practice with regard to the law will resemble that under the state of emergency. Concerns raised before therefore serve as an indicator in the following analysis of the effects of the law on individual rights.
Firstly, as criticized by Human Rights Watch and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the vague definitions of ‘terrorism’ and of what constitutes a ‘threat to national security’ risk abusive interpretations by the authorities (Office of the High Commissioner on Human Rights [OHCHR], 2017; Raj, 2017). The law does not require a justification of imminence and severity of the threat for the measures to apply (HRW, 2017). This is especially problematic when read in conjunction with the authority of law enforcement officials as non-judiciary bodies to give meaning to these terms in their applications with only limited judicial oversight. Similar concerns with regard to the implementation of the emergency measures since 2015 illustrate the ways vague terms and lack of judicial oversight can lead to intruding and discriminatory interference with civil rights. Under the state of emergency, similar provisions have led to extensive use of the measures while rarely leading to criminal investigations of the individuals placed under them, which calls into question their necessity for the prevention of further terrorist attacks. Furthermore, the justification given by police officers were often limited to adherence to conservative interpretations of Islam or radicalization without having to establish why the radicalization poses a threat to national security (Amnesty International, 2016). Given the similar structure of the newly passed law, the risk of its application going beyond what is necessary with regard to the threat of terrorist attacks remains high.
Secondly, based on long-standing concerns of widespread ethnic profiling, the law risks the discriminatory application of administrative measures disproportionately limiting the rights of Muslims and ethnic minorities. Particularly, the extensive powers assigned to law enforcement officials exacerbate the already existing ethnic profiling practices (HRW, 2017). As defined by the European Commission against Racism and Intolerance, ethnic or racial profiling describes “the use […] of grounds such as race, color, language, religion, nationality, or national or ethnic origin” in police operations without objective and reasonable justification (European Commission against Racism and Intolerance, 2007). A report published by Human Rights Watch in 2011 based on interviews conducted in and around Paris, Lyon and Lille documented ethnic profiling and discriminatory practices in identity checks conducted by the police. It raised particular concern about young blacks and Arabs living in economically disadvantaged areas being subjected to a disproportionate amount of identity checks – sometimes repeatedly within a single day. Some of the interviewees including minors reported physical and verbal abuse or unnecessarily intrusive pat-downs. Police officers use identity checks as one of the central tools in their operations and have extensive discretion in checking individuals while not being required to provide a written account of the check (HRW, 2011). Concerns about ethnic profiling intensified with regard to the widespread security measures introduced during the state of emergency. Amnesty International reported that some Muslims seem to have been targeted solely on the grounds of their faith without any evidence of criminal activity (Amnesty International, 2016). Both reports point out that too much discretion awarded to police officers and lack of accountability mechanisms enabled the ethnic profiling and discriminatory practices observed. The experiences made should therefore serve as a warning signal of the risks of abuse entailed in similar shortcomings of the newly passed law.
Considering the enormous risk of abuse and discriminatory application as established above, the effects on individuals placed under these measures are worrying. The measures lead to a limitation of the person’s right to liberty and security, right to privacy, right to access to court, freedom of movement, freedom of assembly and freedom of religion or belief (Aolain, 2017). Interviews with those affected by measures taken under the state of emergency have shown that the restriction of movement has led to the loss of employment and income, failure to attend medical appointments, and further stigmatization in the community preventing some individuals placed under the measures from obtaining a new employment (Amnesty International, 2016). One interviewee described the constant paranoia of potentially failing to report at the police station within the required time and the ‘humiliating’ idea of having to go to prison without having committed a crime (Raj, 2017). Furthermore, the experience of ethnic profiling in policing practices exacerbates the wider experience of discrimination and alienation felt by a lot of affected individuals (HRW, 2011).
Lastly, human rights organizations have voiced their concern over the potential effects of these measures as proxies for criminal sanctions. In fact, while the measures taken are administrative in nature and therefore subject to fewer safeguards than measures taken under criminal law, failure to comply with the measures can lead to heavy fines or imprisonment (Art. L. 227-2; Art. L 228-7, Loi 2017-1510). The administrative measures taken under the law therefore become de facto coercive measures and through ethnic profiling risk criminalizing certain faith groups or ethnic minorities without the safeguards contained in criminal prosecution. While some measures do allow for appeal, the experiences drawn from appeal proceedings under the emergency measures have shown that these are often mere formalities and rarely lead to decisions overturning the measures raising concerns about the effectiveness of measures available for those affected (Amnesty International, 2016).
The Protection of Human Rights While Combating Terrorism
In its treatment of terrorism suspects, as well as in the broader field of counter-terrorism measures, France is obliged to abide by the standards set by International Human Rights Law. This analysis will focus on France’s duties to uphold civil and political rights since these are the rights directly affected by the newly passed law. However, it should be noted that economic, social and cultural rights are also affected by the law, albeit in indirect ways and that the resulting curtailment of the enjoyment of economic, social and cultural rights is equally worrisome.
Particularly, since the events of 9/11 and the ensuing creation of the United Nations Counter-Terrorism Committee there has been a proliferation of counter-terrorism frameworks setting standards for counter-terrorism measures globally. Within these frameworks and different bodies on the international and regional level, new norms regarding the protection of human rights while combating terrorism have been produced at a fast pace posing challenges of norm fragmentation and ineffectiveness. Nevertheless, human rights institutions on both the international and the regional level have consistently affirmed the primacy of human rights in states’ efforts to combat terrorism (German Institute for Human Rights, 2005; OHCHR, 2017). In 2005 the United Nations Commission on Human Rights created the mandate of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, which was later maintained by the United Nations Human Rights Council. The Special Rapporteur constitutes the only entity within the UN System that works explicitly and exclusively on the promotion and protection of human rights in counter-terrorism further confirming the continuance of states’ human rights obligations during counter-terrorism measures. On the European level the Guidelines of the Council of Europe on Human Rights and the Fight Against Terrorism (2002) similarly lays out that “all measures taken by states to fight terrorism must respect human rights and the principle of the rule of law” (Art. II).
Having established the continued obligation of France to abide by human rights standards, let us turn to the civil and political rights affected by the law as enshrined in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of Racial Discrimination (ICERD) and the Convention for the Protection of Human Rights and Fundamental Freedoms or European Convention on Human Rights (ECHR). Both the UDHR, to which France is bound by Customary International Law, and the ICCPR provide for the rights unduly limited under the law according to the Special Rapporteur: right to liberty and security, right to privacy, right to access to court, freedom of movement, freedom of assembly and freedom of religion or belief (Aolain, 2017). ICERD specifies the prohibition of racial discrimination that is also contained in the UDHR, the ICCPR and the ECHR along with other international human rights treaties. While the obligations contained in the treaties mentioned persist during counter-terrorism measures, it is permissible under international human rights law to deviate from some of the rights under specific circumstances as will be discussed below.
Derogations and Limitations
Both the International Covenant on Civil and Political Rights and the European Convention on Human Rights allow for derogations from certain rights. However, derogations are only permissible under strictly defined conditions i.e. the existence of a public emergency threatening the life of the nation, the official proclamation of such an emergency by the state, derogation exclusively to the extent required by the emergency, compliance with other obligations under international law and the prohibition of non-discrimination (Art. 4(1), ICCPR; Art. 15, ECHR). As stressed by the UN Human Rights Committee, the objective of the derogation must be the restitution of a state of normalcy. Additionally, the duration of the state of emergency must be time-bound and registered officially with the offices relevant to the corresponding treaties for which the state has entered derogations (Human Rights Committee, 2001). Consistent with the provisions of the European Convention and the ICCPR France has entered a number of derogations from certain obligations of both conventions since 2015 allowing France to deviate from its human rights obligations (Aolain, 2017). With the passing of the new ‘Law to Strengthen Internal Security and the Fight Against Terrorism’ that entered into force on November 1, 2017, the state of emergency has officially ended and France’s derogations have expired. Therefore, restrictions on these rights can no longer be justified by the state of emergency.
Another permissible way of restricting the application of human rights treaties are limitations that can be placed on certain rights with the aim of protecting public safety. Such limitations are required to be prescribed by law, proportionate and necessary (C.f. Art. 9(2) ECHR, Art. 18(3) ICCPR). Human rights jurisprudence furthermore stipulates that limitations must be the exception rather than the norm, should not be open-ended or absolute and may not impair the essence of the right (United Nations General Assembly [UNGA], 2017). The European Court on Human Rights has interpreted the requirements of necessity and proportionality to prohibit interference with individual rights by police forces in the absence of reasonable suspicion and safeguards against abuse (Gillan and Quinton v. the UK, 2010). Given the intrusive nature of the rights restrictions provided for in the law and the experiences drawn from the exceptional measures under the state of emergency, it is questionable whether they can be considered necessary and proportionate means to protect public safety. In any case, the expected disproportionate effects of the law on Muslims and ethnic minorities would violate the absolute prohibition of discrimination under both the derogations and the limitations regime.
Moreover, the fact that the law made permanent the measures taken under the state of emergency blurs the lines between emergency measures and legitimate limitations adopted under ordinary law and violates the requirement that derogations should follow the objective of restituting a state of normalcy. This has been criticized by UN officials, human rights organizations and leading academics. As noted by UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Fionnuala Ni Aolain “the dividing line between exercise of exceptional national security powers and the ordinary criminal and civil processes of some states becomes hard to distinguish” (UNGA, 2017, p.6). This leads to the normalization of exceptional measures in the public discourse, especially in comparison to more restrictive new measures. Exceptional measures thereby become the starting point of the legal discourse on counter-terrorism measures that encroach ever further on the protection of basic human rights and civil liberties.
Ethnic Profiling and Discrimination
The prohibition of discrimination is a firmly established principle of international human rights law. A non-discrimination clause is part of every core human rights treaty including the ICCPR (Article 2(1)) and is enshrined in Article 2 of the Universal Declaration on Human Rights. Additionally, the International Convention on the Elimination of Racial Discrimination (ICERD) elaborates on the prohibition of distinction based on race. In French domestic law, discrimination is prohibited by Article 1 of the constitution while the French Criminal Code provides an extensive definition including the prohibition of any distinction based on physical appearance and “membership or non-membership, true or supposed, of a given ethnic group, race or religion” (Art. 225-1, Code Pénal). The prohibition of discrimination in police operations has been affirmed by the United Nations Committee on the Elimination of Racial Discrimination requiring states to take positive steps to prevent searches and questioning by police officers based solely on physical appearance or membership of an ethnic group (Committee on the Elimination of Racial Discrimination [CERD], 2005). On the European level, the prohibition of discrimination enshrined in Article 14 of the European Convention on Human Rights, was applied to police operation in the judgment of the European Court of Human Rights in Timishev v. Russia establishing that restrictions of the right to freedom of movement that are based solely on the ethnic origin of a person is prohibited. It has additionally held that the prohibition of discrimination includes those discriminatory practices that happen unconsciously in the absence of discriminatory intent (HRW, 2011; Timishev v. Russia, 2005).
The European Commission against Racism and Intolerance has repeatedly noted its concern about discriminatory police practices in France and has urged the government in 2010 to take measures against these practices by defining and prohibiting racial profiling and by closely monitoring police activities in this regard (European Commission against Racism and Intolerance [ECRI], 2010). Nevertheless, it is to be expected that the French police’s practice of ethnic profiling will not end with the passing of this law and that the powers awarded to police officers will at least in some cases lead to abusive implementations of the law disproportionately and discriminatorily affecting certain groups. The lack of judicial oversight furthermore constitutes a violation of France’s obligation to take measures to prevent racial discrimination. Additionally, by applying the classification of ‘threat to public order’ widely and placing those classified under strict administrative measures, the law subjects large elements of society to quasi-criminal sanctions and enables pre-emptive punishment of certain groups. This stands in sharp contrast with the absolute prohibition of discrimination firmly established by international law, regional instruments and domestic law.
The newly passed ‘Law to Strengthen Internal Security and the Fight Against Terrorism’ limits civil and political rights beyond the permissible requirements of derogations and limitations. Additionally, experiences drawn from practices developed under the state of emergency suggest that it carries an enormous risk of being applied in a discriminatory manner disproportionately affecting Muslims and ethnic minorities. It allows for abusive and arbitrary implementation and constitutes de facto punishment for those deemed a threat to national security despite the absence of criminal charges brought against them. By incorporating emergency measures into ordinary law, it lastly undermines basic human rights protection and normalizes exceptional measures. Considering the intrusive nature of these measures, it is important to bear in mind that their efficiency for combating terrorism remains to be established. Rather, it seems that the disproportionate effects of abusive interpretation and ethnic profiling on the affected communities – as observable in the implementation of exceptional measures under the state of emergency - carries a considerable risk of further alienating already stigmatized elements of the society and can therefore even be counterproductive in the fight against terrorism.
Unfortunately, the situation in France is not a unique one. Special Rapporteur Fionnuala Ni Aolain has identified the normalization of emergency powers within ordinary legal systems in many countries as key area of attention for her term. In fact, just within the European Union similar emergency measures have been passed into legislation in a number of other states dismantling the framework of rights protection that was firmly established since the Second World War (Amnesty International. 2017). As a consequence, the Special Rapporteur began her term by requesting a number of country visits relevant to this area of concern including France (UNGA, 2017). France has accepted the request and it remains to be seen whether the upcoming country visit of the special rapporteur will succeed in encouraging France to bring its laws in compliance with international human rights law.
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Lena Muhs has been working in human rights-related NGOs for 10 years and is currently pursuing a Master’s degree in International Law and Human Rights at the University for Peace.