In the aftermath of the 2015 Paris terrorist attack, then French president Francois Hollande declared a national state of emergency that has been continuously extended over the course of more than 20 months. While scheduled to expire last week, the state’s extraordinary security powers were extended a sixth time until November 2017, despite consistent human rights complaints. Moreover, a new law threatens to make those powers permanent.
International human rights law permits countries to derogate or suspend specific human rights standards in times of emergency where the life of the nation is threatened. The derogations are intended to enable government officials to restore normalcy. Then all human rights obligations are to be fully restored.
While Article 4 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the European Convention on Human Rights (ECHR) both acknowledge that certain rights—such as that to life or protection from torture—may never be suspended, others can be under exceptional circumstances. The ECHR, in Lawless v. Ireland, has defined that as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed.”
While the court gives deference to national authorities in making such decisions, a state may only suspend its human rights obligations where the response is proportional, consistent, non-discriminatory, and publicized.
As this discussion will illuminate, French practices are disproportionate and discriminatory.
In addition to the ICCPR and ECHR, the French Constitution (Article 16) permits the president to exercise “emergency powers” to address a “serious and immediate threat” to the “institutions of the Republic, the independence of the Nation, the integrity of its territory, or the fulfillment of its international commitments.”
By way of comparison, the U.S. Constitution does not include a comparable provision but former president George W. Bush enjoyed such emergency powers post 9/11 pursuant to a congressional resolution that facilitated the suppression of civil liberties in the “War on Terror.” While making no distinction between internal and external threats, the resolution depicted an “extraordinary” and “unusual” national security threat, stating in relevant part,
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.
Of course, states of emergency are not limited to contemporary counter-terrorism responses. On February 28, 1933, for instance, Nazi Germany declared a state of emergency in response to a parliament building set ablaze. That enabled the Nazi administration to suspend civil liberties and the due process of law.
Significantly, time limits are a critical check on emergency powers because officials are forced to reevaluate their necessity in order to curb potential abuses. In France, the state of emergency was renewed a sixth time amid recurring complaints of human rights violations against its minority Muslim population, as documented by Human Rights Watch, Amnesty International, and Human Rights First, among others.
French emergency powers have permitted officials to search homes and premises, as well as access private information on digital devices, without a judicial warrant. The police may also conduct a “follow up” raid at another location with information from that warrantless search. The security powers also permit house arrests of those who “constitute a threat to public order and security.” These efforts have had a “limited impact” on improving security.
Human rights abuses have arisen, however.
According to Human Rights Watch, during searches and house arrests, “police burst into homes, restaurants or mosques; broke people’s belongings; terrified children; and placed restrictions on people’s movements so severe that they lost income or suffered physically.” Amnesty International documented approximately 600 people subject to house arrest; more than 4,000 warrantless raids were conducted. These practices have impacted Muslims.
UN human rights experts described the measures as excessive and disproportionate, characterizing them as undermining the human rights to freedom of expression, peaceful assembly, and privacy. The experts urged “prior judicial controls over anti-terrorism measures,” for instance, judicial search warrants.
Further, Human Rights First has cautioned:
While the French government should take concrete steps to protect its citizens from the threat of terrorist violence, it should ensure that the current state of emergency does not unintentionally exacerbate the extremism behind recent attacks. Human Rights First’s research in France has revealed that the current state of emergency undermines national security efforts in two key ways, including: The implementation of the state of emergency risks further stigmatizing or alienating the vulnerable communities that are most at risk of being subjected to discriminatory or over-broad policing tactics.
Still, a proposed law—the Draft Law to Strengthen Internal Security and the Fight Against Terrorism—promises to make security powers permanent. It permanently expands official authority to designate public spaces as security zones; to close places of worship; and to search private property.
While these measures appear facially neutral, they have singled out observant Muslims in practice, frustrating human rights. This stigmatizes the minority faith community, making them vulnerable to suspicion, prejudice, and discrimination, despite research evidence that reveals other ignored threats.
According to the 2017 Europol report assessing terrorist threats in the European Union (EU), 142 terrorist attacks occurred last year. Self-identifying Muslims were responsible for 9 percent of those assaults. By comparison, separatists committed 70 percent of terror attacks in the EU. Even in France, separatists committed 3.6 as many acts of terrorism than self-identifying Muslims. Still, official scrutiny remains discriminatorily and disproportionately focused on observant Muslims.
In sum, France is poised to permanently enshrine some of its overly broad emergency powers into criminal and administrative law amid continued human rights complaints. Arguably, the implementation of that law will further stigmatize and alienate the marginalized Muslim minority community, undermine human rights standards, and compromise security interests.