by Lou Khalfaoui
In the wake of the coordinated attacks that swept through Paris on November 13, 2015, the French government instituted a formal state of emergency. Two years later, it officially ended. However most of the special powers and legal ‘short-cuts’ it reserved for the state were enshrined in the Anti-terrorism Law passed in October 2017. In other words, the limitations placed on individual freedoms in the face of ‘imminent danger’(1), temporarily and under exceptional conditions, have become embedded in the normal state of affairs. The state of emergency and now the Anti-terrorism Law still carry a substantial colonial baggage; the tool used to subjugate the Algerian people into compliance is disproportionately affecting second-generation citizens and immigrants today, as it did 60 years ago.
The regime established by the state of emergency gives the police and other state authorities, notably the Ministry of Interior and local police prefects, an extensive array of powers. Before 2015 and outside of the state of emergency, those powers would have necessitated judicial authorisation and oversight. Under the state of emergency, the French government has the ability to forbid movements of any people or vehicle in certain area and close down places where gatherings ‘of any nature’ would occur, including places of worship(2). Furthermore, any procession, including demonstrations, or gathering of people in public spaces can be forbidden for security reasons(3). The Minister of the Interior can also place individuals on house arrest for up to 15 months and impose up to three compulsory appearances a day at a designated police station(4). Additionally, authorities can conduct searches in ‘any place, including a private home’, and gain access to the data contained on a person’s electronic devices(5). These are a few examples of the ample liberties taken by the executive branch that breach individual freedom and basic human rights under the state of emergency.
The State of emergency Law was first invoked in 1955, in the context of the Algerian War of Independence, when anti-colonial movements agitated France and the Café War, where bombs would be placed in public spaces, was agitating public consciousness. This piece of legislation was tailored for the actors at hand – a secret network of fighters that could not simply be fought with military means but warranted more invasive, targeted and intelligence-based recourses(6). At the time, the prevailing view of Algerians as being illiterate and easily won over by extremist ideology broadened the scope of the bill to include censuring the press and breaking up peaceful gatherings(7). The state of emergency, which takes its roots in France’s attempt to maintain the peace but also its assertion of colonial power in silencing dissonant liberation voices, was later invoked in 2005.
Unrest had broken out in certain neighbourhoods, les banlieues, on the outskirts of Paris, where a large minority population is relegated. Sixteen years ago, the French government’s choice to invoke a half-century-old measure, last used to repress liberation struggles, had important symbolic weight (8). It served as a signal to the general public that the state was committed to crushing protesters, obscuring in the process the long lasting socio-economic discrimination faced by France’s minority groups. Nicolas Sarkozy, who served as Minister of the Interior at the time, was a strong force behind the declaration of a state of emergency. He later was elected as president, despite being infamous for his numerous xenophobic and racist remarks (9). In 1955, Alice Sportisse, the Oran deputy of the National Assembly, declared that the state of emergency regime served as a ‘pretext for the government’s use of a cunning weapon against the French people itself’ (10). Her words are still eerily relevant; throughout the last six decades, the special regime has served as an all-encompassing tool to silence dissonant voices by the French state.
Since 2015, Human rights Watch has extensively documented how the use of house arrests and raids by police forces, without judicial scrutiny, have led to significant human rights abuse and drawn widespread criticism from international actors (11). In fact the special power to break up gatherings and close certain spaces has served to arbitrarily shut down a number of mosques (12). Furthermore, in its February 2016 report, Amnesty International concluded that the special powers were used discriminatorily and had long-term profound impact on the targeted individuals and their families’ well being. Similarly, the United Nations’ Committee Against Torture (CAT) raised concern about ‘reports of excessive use of force by the police during some search operations, which has in some cases led to psychological sequelae [consequences] for the persons in question’ which ‘could constitute an infringement of rights
ensured under the Convention.’ (13) Halim A. reported that his reputation and business were destroyed after being placed on house arrest by the police on the 15 November 2015. He was compensated with 1500€ after disputing his house arrest in court, however it took another three months to be lifted (14). Activists and international observers have consistently urged authorities to ensure judicial due process over all anti-terrorism measures. Despite the concerns expressed by global civil society and international UN agencies, French public opinion has consistently maintained its support for these discriminatory measures, with polls showing a majority of respondents wanting them to be more stringent (15). The threat of terrorism has stunned people into a fear-motivated inertia, threatening the separation of powers of the French state and the rights of French citizens.
The special security measures do not just apply in discriminatory ways; it has also allowed authorities to ban public demonstrations of various kinds by asserting that they were a threat to public peace and order. Amnesty International reported that the emergency measures had disproportionately been applied to people who were not actually suspected of threatening public security. Among the targeted individuals were people intending to protest the labour laws reform led by Emmanuel Macron and those mobilising around the COP21 held in Paris (16). By applying these measures outside of anti-terrorism related matters the government has repeatedly exposed its resolve to abuse the powers conferred by the state of emergency – this was reiterated by five UN special rapporteurs who concluded that France’s state of emergency imposed significant restrictions on human rights and fundamental freedoms. They were particularly alarmed by the restrictions it imposes on freedom of expression and the right to peaceful assembly and association as outlined in article 19, 21 and 22 of the International Covenant on Civil and Political Rights (17).
More than three years ago, the new Anti-terrorism Law marked the end of the state of emergency. However, there is now no end-date in sight for some of the special regime’s legacies. Benedicte Jeannerod, director of Human Rights Watch France, argues that with this iteration of the state of emergency’s measures the government is ‘crossing a red line’ by ‘inscribing doubt into the rule of law’ (18). Others have already pointed out that the law was, from its inception, aimed at expanding the areas where air and border police could check for identification papers (19). Whilst government praised the text adopted by the French parliament as surgically targeting terrorist activities, it is clear that illegal immigration is one of its intended foci. Currently there are two novel draft laws proposed by government, which France’s lower parliamentary chamber has already adopted; the Law against Separatism and the Law on Global Security. 33 highly influential civil society actors signed an open letter to denounce these future pieces of legislation as instituting a ‘police state’ as if in ‘far right neo-fascist dream’ (20).
From the liberation struggle of Algeria, the state of emergency has consistently been applied to target particular populations that are left on the periphery of French society. The emergency regime has also been used to crush opposition to government policy, would it be economic, diplomatic or environmental motivated. Its normalisation and embedment into French law is a troubling situation that allows the government to use these measures without judicial oversight and until further notice. Without a drastic change in French public opinion, the executive power is left unchecked, as the rule of law is weakened, to advance its own agenda at the cost of repeated human rights’ abuses.
1 Art. 5, Law No. 67-1828
3 Art. 8, Law No. 67-1828
4 Art. 6, Law No. 67-1828
5 Art. 11, Law No. 67-1828
6 Thénault, S. 2007. ‘The State of Emergency Law (1955–2005): The History of a Law from Colonial Algeria to Contemporary France’, Le Movement Social 1, 208.
7 Pierrat, E. 2015. ‘L’Etat d’urgence et la censure’, LivresHebdo, 18 November. Available at : https://www.livreshebdo.fr/article/letat-durgence-et-la-censure.
8 Thénault, S. 2007. ‘The State of Emergency Law (1955–2005): The History of a Law from Colonial Algeria to Contemporary France’, Le Movement Social 1, 208..
9 Le Monde avec Agence France Presses, 2020. ‘Après avoir associé les mots « singes » et « nègres », Nicolas Sarkozy est accusé de racisme par la gauche’, 11 September. Available at : https://www.lemonde.fr/politique/article/2020/09/11/apres-avoir-associe-les-mots-singes-et-negres-nicolas-sarkozy-s-attire-les-critiques-de-la-gauche_6051773_823448.html.
11 Jeannerod, B. 2017. ‘La France est droguée à l’état d’urgence, mettez-y un terme, monsieur le Président,’ Libération, July 10, 2017. Available at: https://www.liberation.fr/debats/2017/07/10/la-france-est-droguee-a-l-etat-d-urgence-mettez-y-un-terme-monsieur-le-president_1582898
12 Vincent, E. 2016. ‘Fermeture de quatre mosquées considérées comme lieux de “référence pour la mouvance salafiste,’ Le Monde, Novembre 3. Available at: https://www.lemonde.fr/religions/article/2016/11/03/quatre-mosquees-fermees-en-region-parisienne_5024839_1653130.html
13 Committee Against Torture, 2016. ‘Concluding observations on the seventh periodic report of France’, Available at :http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsuGd5%2BKvluDUd5l6A8IGLwe7yYFE5XN4yWN%2FVIBV2%2Fx5xo5wdbP%2FfJ9lnN%2BHl72zfmMftvkB4lyBGPhyXl1IYNK3kkf4ZRLRPHOyl7%2BoEeNG.
14 Human Rights Watch, 2016. ‘France: Abuses Under State of Emergency’. Available at : https://www.hrw.org/news/2016/02/03/france-abuses-under-state-emergency.
15 IFOP, 2016. ‘Les Français et l’état d’urgence’. Available at : https://www.ifop.com/publication/les-francais-et-letat-durgence/.
16 Pascual, J. 2017. ‘Quand l’ état d’urgence rogne le droit de manifester,’ Le Monde, July 1. Available at: https://www.lemonde.fr/societe/article/2017/05/31/en-france-les-interdictions-de-manifester-se-multiplient_5136295_3224.html.
17 ‘France must bring counter-terrorism law in line with international rights obligaitons – UN experts,’ UN Daily News, 27 Septembre. Available at: http://www.un.org/News/dh/pdf/english/2017/27092017.pdf.
18 Pascual, J. 2017. ‘Le government choisit la surenchère sécuritaire pour sortir de l’état d’urgence’, Le Monde, 25 September. Available at: https://www.lemonde.fr/police-justice/article/2017/09/25/le-gouvernement-choisit-la-surenchere-securitaire-pour-sortir-de-l-etat-d-urgence_5190725_1653578.html
20 ‘Monsieur le Président, nous n’avons pas vote pour ça’, Médiapart. 22 November, Available at: https://blogs.mediapart.fr/les-invites-de-mediapart/blog/221120/monsieur-le-president-nous-n-avons-pas-vote-pour-ca#at_medium=custom7&at_campaign=1047