Religious discrimination in counterterrorism in France

Analyzing the issue of religious discrimination in counterterrorism laws requires first, to look at the facts: whereas many cases brought to justice until the years 2000s concerned Corsican and Basque separatists^[1], people indicted for acts of terrorism today are mostly identified as (radicalized) Islamists. 

Moreover the attacks of February and November 2015 led to a point of no return where terrorism is viewed almost exclusively as a crime committed by people of Muslim background. 

This context reinforces the possible conflation of Islam with terrorism and the risk for a political and discriminatory implementation of the law in terrorists’ cases. 

This risk becomes a reality when the legal provisions used in counterterrorism are not strictly defined. 

The most common offence used to try terrorists’ cases in France is “criminal association”, which appears ill defined. Under French law^[2], a criminal association “consists of any group formed or any conspiracy established with a view to the preparation, marked by one or more material actions, of one or more felonies, or of one or more misdemeanors punished by at least five years’ imprisonment.”  

It is indeed worth noting that most terrorism cases are in fact cases in which the plotted or suspected attack did not happen. 

In such cases, investigative judges attempt to identify an agreement (based on phone calls, emails but also on shared opinions or readings) and a sum of material evidences (search for weapons, cars, indications of the accused moving houses, messages and phone calls) that lead to consider that if the suspect had not been arrested, he/ she would have committed the crime. 

In many cases, investigations are carried out when the crime is very far from being a structured project, making it difficult to gather evidence. 

Additionally, the law does not provide for a list of material elements that are admissible as an evidence of criminal association, which creates a situation where subjective elements can be used: the personality of the suspect, and their habits and therefore religion, become evidence. 

Thus, we see that the intense and rigoristic practice of the Muslim faith is often, if not always, taken into account to materialize the agreement among the suspects or the intent to commit an attack that was in fact never committed.

For example, in ISIS returnee cases, the question of what the indicted did do in Syria (did they fight? were they a member of the administration? did they use weapons? Etc.) is often left unanswered. In those cases, the intensity of religious practice, often based on testimonies, is then used as evidence of the person’s adherence to ISIS ideology and therefore to terrorism. 

We find that a lack of religious practice can, on the contrary, be an exonerating factor. 

In a very recent case decided by the antiterrorist criminal court in Paris^[3], a group of four people was on trial for having prepared explosives with the intention of committing a terrorist attack, and religion was the criteria that singled out one of the indicted. Because he was not religious (he had absolutely no religious practice of any kind), the court was convinced by a defense underlining the lack of material evidence as to the preparation of the explosives, whereas we may wonder how their evidentiary value may have been analyzed, had he been a very rigorist Muslim (although we know the answer). 

However, religion in terrorism criminal cases affects every other spheres of law where the legislator, pursuing a political goal, did not take the time to properly define the behavior or the act that may justify enforcing sanctions or depriving individuals of their fundamental civil rights. 

Hence we come across the same issue of imprecise definitions that lead to political enforcement of the law when we look at the state of emergency implemented after the attacks of November 2015, and often criticized because it lead to discrimination against Muslims. 

State of emergency laws allowed the government (the Minister of Interior and the “Préfêts”) to restrict freedom of movement based on very broad criteria. 

For instance, one can be placed under house arrest if the administrative authority identifies « serious reasons for thinking that the behavior of the person is a threat for security and public order”.

Such reasons for administrative decisions lack precision and fail to clearly define the behavior that justifies the administrative measure. This, in turn, leads to possible religious discrimination, notably in the current political context, as informed by the terrorist attacks of November 2015. 

In many cases, people were put on house arrest for a few months before a judge found the measure to be lacking grounds, for instance when the administrative house arrest decision was only justified by the fact that the mosque the person used to attend had been identified as place of worship for people that were considered to be radicalized. 

Again, a restrictive definition of what could justify an infringement on the freedom of movement, or the freedom of worship, would have prevented us from the discrimination that Muslims have endured since the attacks. 

***

At the time of writing, a new state of emergency was implemented in France as a response to the Covid-19 pandemic. Choosing to erase the past and all of the criticisms addressed by lawyers, judges, and non-governmental organizations against the previous state of emergency and its lack of legal rigor, the Government has adopted a new exceptional regime, allowing the State to restrict public liberties on very broad criteria. 

Since not only Muslims will be targeted but all citizens, one can only hope that the voices will finally be heard of those that have been demanding clearer legal provisions since 2015, as the only insurance against political and discriminatory enforcement of the law. 

^[1] One of the last cases was judged in 2018

^[2] Article 450-1 of the french criminal code, which was not created firstly to be used in terrorists cases. 

^[3] Decision of the 31rst of January 2020