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France: The Dangers of Permanent Emergency Legislation

 

On July 18, the French Senate adopted a new law “To Strengthen Internal Security and the Fight Against Terrorism” (Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme). This week, it is pending adoption in the National Assembly. Just Security has previously reported on this legislation. I have identified, with others, several broad concerns with the draft law. For example, the legislation:

  •  provides vague definitions of terrorism and threats to national security exacerbating concerns that the powers may be used in an arbitrary manner.
  • ends the state of emergency formally on November 1, after almost two years, but replaces it immediately with a number of measures that write exceptional, emergency practices into normal criminal and administrative law. This normalization of emergency powers has grave consequences for the integrity of rights protection in France, both within and beyond the context of counterterrorism.
  • grants increased powers to prefects in almost every French department (as opposed for example to judicial officers appointed by law) to designate public spaces as security zones, limiting who could enter and leave them; to limit the movement of people considered a national security threat; to close places of worship; and to search private property.
  • limits the judicial overview of the exercise of the increased prefect’s powers, as well as the right of appeal for executive orders limiting where a person has to live and for closing places of worship.
  • changes surveillance legislation, border controls and processes for the retention of passenger data, and includes a new requirement for financial reporting by any organization carrying out counter-radicalization projects as a public function.
  • introduces restrictions called “individualized administrative control and surveillance measures,” which will require a person to remain within a geographic boundary, to report periodically to a police station, to accept an electronic surveillance bracelet, and to report any changes of residence.

There are reasons to be very concerned about the far-reaching scope of the new law and its potential adverse impact on a broad range of rights. This includes the enjoyment of the right to liberty and security, the right to access to court, freedom of movement, freedom of peaceful assembly and association, freedom of expression and freedom of religion or belief. While France has entered numerous derogations from certain obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights (November 2015, February 2016, July 2016, December 2016 and July 2017) these exceptions do not give a carte blanche to ignore all requirements under these conventions. States must be aware that any measure departing from or limiting human rights obligations must meet strict criteria set out in international human rights law. More particularly, there is consistent jurisprudence from the European Court of Human Rights that affirms the need to use such powers in a proportional and necessary way. Human rights law and practice are clear: Exceptional powers are not meant to be made permanent, and doing so places a grave burden on the full enjoyment of human rights by all citizens equally, and may undermine the very spirit of the rule of law.

There is no doubt that terrorism poses a grave challenge to the rule of law, human rights and the full and effective enforcement of rights in democracies wanting to take meaningful and comprehensive measures to address the menace of terrorist acts. France has experienced heinous and deeply challenging terrorist attacks in recent years, and its government rightly feels the need to protect and advance the security of its citizens. Nonetheless, even in these circumstances, both regional and international human rights bodies affirm that the means open to the state to regulate terrorism by law are limited (Klass and Others v. Germany, 1978 para 49).

France is a leading democracy with a deep and abiding commitment to the rule of law and the value of human rights. Of most concern with this draft bill is the inclusion of a number of security measures, which will permanently incorporate into ordinary law several restrictions on civil liberties currently in place under France’s state of emergency for a limited period only. France is thus in danger of leading the way for the wholesale incorporation of exceptional law into the ordinary criminal and civil justice systems. Moreover, there are elements of this law that go beyond that which has been proclaimed within the emergency framework and for which exception was not previously sought from regional and international human rights bodies.

French leadership in demonstrating how the management of terrorist threats can be undertaken without imperiling the rule of law and exhibiting a sustained commitment to the protection of human rights has important national, regional and international dimensions. France has a robust and independent judiciary, which has repeatedly shown itself to be up to the challenge of adjudicating issues of national security. France has a strong constitutional commitment to the dignity and worth of each individual, a tradition that has withstood decades of conflict and challenge at home and abroad. Terrorism can not be effectively fought by the abrogation of human rights, as the trenchant commitment by states to countering and preventing violent extremism has illustrated. Abrogating rights does not defeat terrorism. France has a deep reservoir of capacity in its ordinary law and within the four corners of its constitution which should be fully and completely engaged, before resort to the permanent exception is made an integral part of ordinary law.

Image: Getty/Aurelien Meunier

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About the Author

is concurrently the Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School and Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland. Follow her on Twitter (@NiAolainF).