<<previous  |  index  |  next>>

II. Background

Forced removals are not a new phenomenon in France, nor are they limited to terrorism suspects.  French criminal and immigration legislation provides for the deportation or expulsion of legal residents for a wide range of offenses and behaviors.   The numbers of Islamists removed from France on national security grounds became significant in the 1990s, at a time when the crisis in Algeria made France a direct target for terrorist attacks, including inside France itself.  The September 11, 2001 terrorist attacks in the United States and the succession of attacks in Casablanca (2003), Madrid (2004), and London (2005) strengthened the resolve of the French authorities.

Although France had suffered a wave of international terrorist attacks in 1986 leading to the adoption of centralized counterterrorism judicial machinery, France’s preventive approach to counterterrorism was not consolidated until the 1990s. Forced removals of terrorism suspects now form an integral part of this approach. Such removals are also part of France’s strategy to counter violent radicalization and recruitment on French soil.   Whether the person removed is a foreigner convicted of membership in or association with a terrorist network, or an imam suspected of preaching a radical and violent interpretation of Islam, the goal is the same: to prevent an attack in France by sending him back to his country of nationality.²

France’s Experience of Terrorism

By the time the fight against Islamist terrorism had become an international priority, following the September 11, 2001 attacks in the United States, France already had in place perhaps the most developed counterterrorism machinery in Europe. 

In the 1960s and 1970s France had experienced internal violence by Corsican and Basque separatists, extreme left-wing groups, and several attacks linked to specific political contexts in other countries.³  It was in the mid-1980s, however, that France experienced a new form of “de-territorialized” terrorism.⁴  Over a dozen attacks in Paris in 1986 on department stores, trains, subways, and public buildings claimed 11 lives and injured over 220 people.  A previously unknown group called the Committee for Solidarity with Near Eastern Political Prisoners took responsibility for the strikes.   In 1995 another wave of attacks between July and September—including a bomb at the Saint-Michel subway station in Paris—killed 10 and injured over 150 people.  French authorities attributed the attacks to the Algerian Armed Islamic Groups (Groupes Islamiques Armees, GIA).⁵

Endemic political violence in Algeria, sparked in January 1992 when the military-backed government suspended the second round of parliamentary elections that the Islamic Salvation Front (Front Islamique du Salut, FIS) was poised to win, had seen the ascendancy of the GIA.   France’s colonial history in Algeria and the brutal eight-year war that had led to Algeria’s independence in 1962 informed the concern of French authorities about the arrival of numerous members of the FIS and armed Islamist groups in France.⁶  In October 1993 the GIA kidnapped three French consular officers in Algiers (they were released a week later), and it hijacked an Air France flight from Algiers to Paris on December 25, 1994, demanding a stop to all aid to the Algerian government and reparations for the colonial period.  The following day, French commandos stormed the plane on the tarmac in Marseilles, killing all hijackers. 

Beginning in November 1993, France carried out a series of police raids, the collective expulsion of 20 terrorism suspects without a hearing, and the mass trial of 138 people in what would come to be known as the “Chalabi Affair” (after the alleged ringleader).  In reaction to the kidnapping of the three consular officers in Algeria, then-Interior Minister Charles Pasqua ordered Operation Chrysanthemum, in which 110 people were questioned and 87 arrested over two days in early November 1993. In August 1994, after five French citizens were killed in Algeria, Pasqua ordered mass identity card checks in “sensitive neighborhoods”; over 27,000 people were stopped and checked in just two weeks.  At the time, Pasqua defended casting a wide net, rather than specifically targeting known Islamists, by saying that “you don’t catch fish if you don’t go fishing.”⁷ 

As a result of this operation, 26 men were detained for one month in abandoned gendarmerie barracks in Folembray, a small town in the northern departement of Aisne; whether this internment was legal is still a matter of debate.  On August 31, 1994, 20 of these individuals—19 Algerians and one Moroccan—were collectively expelled to Ouagadougou, Burkina Faso.⁸  The other six who had been held in Folembray were subject to compulsory residence in France (see Chapter VII for more details on this measure). Calling the Folembray internees “Islamists” and “accomplices of terrorists,” Pasqua ordered their expulsion as a matter of absolute urgency to protect national security.  “May this serve as a lesson to those who do not respect the laws of the Republic and those of hospitality,” he said at the time. ⁹

In November 1994, 93 people were arrested in one day, the first of a series of arrests over the next two years of alleged members of a network in support of Islamist combatants in Algeria.  Ultimately, 138 people were tried in 1998 for association with a terrorist group, referred to in France as the “Chalabi network.”  The highly controversial trial was held in a prison gymnasium on the outskirts of Paris because of lack of space in the central court house.  Fifty-one people were acquitted, in some instances after as long as three years in pretrial detention, while 87 were found guilty.  Four more were acquitted on appeal.  Of those convicted, 39 were given sentences of less than two years, while the four prime defendants, including Mohamed Chalabi, the presumed ringleader, received sentences ranging from six to eight years.  Over half of those convicted were ordered deported following completion of their prison sentence.¹⁰  

The French Counterterrorism Model

In response to the threat of international terrorism, France adopted an approach characterized by centralization of terrorism cases in Paris among specialized prosecutors and magistrates, an exceptionally close relationship between the latter and intelligence services, and a judicial approach involving the preventive detention of terrorism suspects.  Legislation adopted in 1986 created the centralized judicial system for terrorism-related offenses: a specialized corps of investigating magistrates and prosecutors, and non-jury trials in the Trial Court of Paris (Cour d’Assise) for serious terrorist felony offenses and non-jury trials in the Correctional Court (Tribunal Correctionnel) for minor terrorist felony offenses.¹¹  The law also extended pre-arraignment police custody (garde a vue), in terrorism cases from the normal maximum of 48 hours to 96 hours.  In January 2006, this was extended to six days.¹²  During garde a vue, detainees have limited access to legal counsel and may be questioned at will by police interrogators without their lawyer present. Any information obtained during police questioning can be used against the detainee in subsequent proceedings, even if his or her lawyer was not present at the time.

The cornerstone of France’s preventive approach is the offense of belonging to a criminal association in relation to a terrorist undertaking (association de malfaiteurs en relation avec une entreprise terroriste), which allows investigating magistrates to detain terrorism suspects before they have been linked to any specific act of terrorism that has been planned or carried out.  Introduced to the Criminal Code in 1996, association de malfaiteurs is a minor felony offense defined as “the participation in any group formed or association established with a view to the preparation, marked by one or more material acts, of any of the acts of terrorism” provided for in the Criminal Code punishable by up to 10 years in prison.¹³   The overwhelming majority of those accused in France of involvement in activities related to Islamist terrorism are charged with this offense. 

The association de malfaiteurs offense has been singled out for criticism because it lends itself to arbitrary interpretation and application.¹⁴  In a 1999 report, “Paving the Way for Arbitrary Justice,” the International Federation for Human Rights (Federation Internationale des ligues des Droits de l’Homme, FIDH) concluded that “[t]he intention of the article is quite clear: the investigating and prosecuting authorities… are statutorily absolved from any duty to link the alleged participation with any actual execution of a terrorist offense or even a verifiable plan for the execution of such a plan.”¹⁵  FIDH argued that examining magistrates have used speculation and insinuation rather than hard proof, and that they did not give proper weight to the issue of criminal intent.  More recently, the United Kingdom Parliament’s Joint Committee on Human Rights reported its “strong impression” in the absence of detailed statistics that the large number of arrests in France for this offense were accompanied by only a small number of convictions, and concluded that “the offense was mainly being used, not to prosecute individuals for their actions, but in order to gather evidence about possible future terrorist attacks.”¹⁶

Criminal lawyers who work on terrorism cases are largely critical of the lack of legal certainty in the association de malfaiteurs offense.  Jean-Jacques de Felice, an attorney who has defended numerous terrorism cases, complained, “You are the cousin of the cousin of the cousin of someone who’s done something, so you are in an association de malfaiteurs.  The concept is very vague.  It’s the law itself that’s dangerous

A European Debate

Forced removals of non-nationals are permitted under international law.  Article 13 of the International Covenant on Civil and Political Rights (ICCPR) allows for expulsions of legally resident foreigners in accordance with the law and where the individual has a meaningful right to challenge the expulsion.¹⁸  The United Nations Human Rights Committee, tasked with monitoring compliance with the ICCPR, has noted that the provisions of article 13 may be departed from in cases involving “compelling reasons of national security,” but also that “[n]ormally, an alien who is expelled must be allowed to leave for any country that agrees to take him.”¹⁹ More generally, the committee takes the view that non-nationals may enjoy the protection of the ICCPR even in respect to entry and residence when issues arise related to non-discrimination, the prohibition of inhuman treatment, and the right to family life.²⁰

Within Europe, while there is growing consensus that long-term foreign residents should be protected against removal, support for that position—and its reflection in regional instruments—wears thin when questions of national security or public order (ordre public) are raised.  Both of the Council of Europe’s main human rights treaties address the need to protect legal foreign residents against arbitrary expulsion and to ensure adequate procedural safeguards.  But both permit expulsions, without such safeguards, to be carried out on grounds of national security.  As well as a general prohibition on collective expulsions of foreigners,²¹ Protocol 7 to the European Convention on Human Rights (ECHR) provides for procedural guarantees relating to the expulsion of foreigners: decisions on expulsions must be taken in accordance with the law, and individuals subject to expulsion must have the right to submit reasons against the measure, to have their case reviewed, and to have appropriate legal representation for the purposes of this appeal.²²  The Protocol continues, however, to stipulate that a foreigner “may be expelled before the exercise of his rights… when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.²³  The European Social Charter also obliges states to ensure that migrants lawfully residing in their territory are not expelled “unless they endanger national security or offend against public interest or morality.”²⁴

In a 2001 recommendation, the Parliamentary Assembly of the Council of Europe (PACE) took the view that the removal of long-term immigrants is both disproportionate, “because it has lifelong consequences for the persons concerned, often entailing separation from his/her family and enforced uprooting from his/her environment,” and discriminatory, “because the state cannot use this procedure against its own nationals who have committed the same breach of the law.”  The PACE added that “the mere prospect of expulsion weakens the process of integration into society of aliens and their communities, and might well give rise to a suspicion of foreigners, whether they face expulsion or not.”²⁵  PACE did, however, consider that such expulsions should be possible in “highly exceptional cases” where the individual has been proven to constitute a real danger. 

At the European Union (EU) level, the 2003 Council Directive concerning the status of third-country nationals who are long-term residents stipulates that member states may expel a long-term resident “solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.”²⁶  In deciding whether to expel, member states should take into consideration the amount of time the person has been a resident, the person’s age, the consequences of deportation for the person and family members, and the person’s links with the country of residence or absence of links with the country of origin.²⁷

Several European governments have expressed strong support for a common EU policy on expulsions of terrorism suspects.  At an extraordinary meeting of the Justice and Home Affairs Council in July 2005, Italy proposed examining a common approach to such expulsions, and in September 2005 then-UK Home Secretary Charles Clarke called for common rules among EU countries for deporting people who incite hatred or encourage terrorism.²⁸  In March 2006, the interior ministers from the “G6” countries (France, Germany, Italy, Poland, Spain, and the UK) agreed to share information about expulsions of suspects for preaching racial or religious hatred and stressed that this cooperation was intended to forge a common European interior and security policy.

In the first step towards this goal, and on the basis of a proposal from the French government, an EU Council Working Party on Migration and Expulsion has drawn up a draft resolution on information exchange on the expulsion of radical preachers inciting violence and racial hatred.  As currently drafted, the resolution would require member states to inform all other member states when they expel any third-country national on the grounds of behavior linked to terrorist activities or constituting acts of explicit and deliberate provocation of discrimination, hatred, or violence.  Reflecting the tension between the goal of a common approach, on the one hand, and the desire of many member states to retain autonomy on the other, the draft resolution for the moment specifically precludes any requirement to harmonize criteria governing expulsions or any interference with the discretionary power of each government on these issues.²⁹

In September 2005, the European Commission submitted its proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-country Nationals (the “Returns Directive”).  Although there are human rights concerns with the proposal as drafted, its stated purpose is to provide minimum standards for fair procedures that comply with international human rights standards.³⁰  The current draft explicitly excludes from its scope the situation of third-country nationals whose stay has been interrupted by an expulsion order for reasons of public order and security. 

Any effort to adopt a common European approach to national security expulsions must ensure that all harmonization instruments—both soft-law guidelines and hard-law rules—regulating the removal of terrorism suspects inc lude appropriate human rights protections and provide for viable alternatives to forced removal that are in accordance with international law.