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Europe stood still on the evening of November 13th as terrorist attacks hit the French capital. It goes without saying that all the contributors at Your Rights Matter share our condolences with those affected both directly and indirectly by the deplorable violence in Paris.
Acts of such brutality often illicit emotional responses from the authorities. As citizens, there seems to be a tendency to forego all sense of context and perspective when dealing with a national crisis. We are almost conditioned to feel as though barbaric violence gives carte blanche to governments to resolve the situation as they please. In times of crisis, the tension between civil liberties and national security are stretched almost to breaking point. Governments are compelled to act. It is during these times of reduced liberties that their actions must be most closely scrutinised.
Declaring a state of emergency generally concentrates power in the hands of the executive branch of government. The powers of the authorities are expanded, consequently limiting the civil liberties and human rights of the people. The raison d’etre of these expanded powers must always be the resolution of the temporary emergency – as a result, the powers are always temporary in nature.
On November 13th the French Republic declared itself to be in a national state of emergency, its first nationwide emergency since 1961 during the Algerian War. Parliament last week voted to extend this emergency for three months as of November 26th. Given these recent events, it is important to remember international human rights law’s role in mediating the conflict between civil liberties and national security during times of crisis.
International Human Rights Law
When it comes to emergencies, international human rights law affords States a wide margin of appreciation to gauge whether or not an emergency does in fact exist. This is because States have access to classified information and are generally better equipped to assess their own situation than an international body.
The European Convention on Human Rights (ECHR) contains in Article 15 a derogation provision for States to use during an emergency should they see fit. A derogation in international human rights law is a temporary or partial rejection of a State obligation. The conditions for derogation under the ECHR are as follows:
An emergency that threatens the life of the nation must exist (as mentioned above, States are given a wide margin of appreciation in deciding whether or not this is the case)
The derogations outlined must only be ‘strictly to the extent required by the exigencies of the situation’ – in other words, the measures taken to resolve the emergency must be necessary and proportionate to the emergency in question
The measures taken must not be inconsistent with the State’s other obligations under international law
The ECHR does not contain a non-discrimination clause in its derogation provision. However, the catch-all idea that derogations must be consistent with a State’s other international legal obligations covers all discrimination grounds.
These conditions limit the use of extraordinary powers. They must be used on a temporary basis with the aim of resolving the crisis facing the State in question. As aforementioned, emergency powers can be subject to abuse given that scrutiny of the authorities are often at a low ebb in a time of crisis. Article 15 of the ECHR attempts to curtail abuse of extraordinary powers.
On November 25th France informed the Secretary General of the Council of Europe that they were invoking Article 15 of the ECHR to derogate from certain rights contained in the Convention. As of yet, the French are still holding their cards close to their chest and have not openly declared what rights they plan to derogate from. But with President Francoise Hollande framing the emergency in the context of ‘pitiless war’, one thing is for sure: the next three months will be a tense period for human rights across the channel.
The French Response
On November 20th France enacted worryingly rushed legislation that amended the 1955 law on emergency powers by expanding the powers of the police. The government is temporarily allowed to:
conduct extra-judicial searches with no warrant and seize any computer files it deems to be suspicious
block any websites it deems to be glorifying terrorism without judicial say-so
place citizens under house arrest without the authorisation of a judge
These powers have the potential to infringe upon the French peoples’ right to liberty, freedom of movement, privacy and freedom of expression and association. Although we do not know the rights that France plans to derogate from, it is safe to assume that they will follow a similar line.
Despite these grave concerns, there have been some positive changes to the 1955 legislation, though these are admittedly modest. Parliamentary oversight to emergencies was added and both control over the press and the use of military tribunals were ditched.
The French Minister of the Interior Bernard Cazenueve has said that as of November 24th, there have been more than 1,230 police searches, over 195 police interrogations and 124 people handed preliminary charges. It is of course too early to assess the necessity and proportionality of the both the domestic measures taken and the derogations from international human rights law. Only time will tell if the French have responded appropriately to the Paris attacks on the 13th November.
Islamophobic Backlash
One emerging trend is certainly a cause for concern: the discrimination of these powers against the Muslim community. A halal restaurant was recently raided on the grounds of dubious and classified intelligence received. The owner of the restaurant attempted to facilitate the police raid, asking if he could help and even offering the authorities the keys to the backroom. He claimed that police ignored him and broke down the doors with a battering ram to find no wrongdoing whatsoever.
Paris-based civil rights lawyer Xavier Nogueras claimed that simply attending a mosque can land you in the ‘S-Files’, France’s security risk list. This further isolates Islamic communities in France, adding to a long and troubled history punctuated only recently by the Charlie Hebdo attacks.
The aftermath of the attacks has been one of polarity, with social media divided over the role of Islam in the violence. The discrimination has certainly not been limited to France – during a minute’s silence for the people of Paris at an American Football game in the United States a fan reportedly shouted ‘Muslims suck!’
At a time when solidarity is most needed it is distressing to see an Islamophobic backlash from both State authorities and wider civil society that drives people apart. Concern is rising that the French response is tipping in favour of national security at the cost of human rights, particularly for the increasingly marginalised Muslim community in France – the largest in Western Europe. It is imperative that during this time of extraordinary State power the international community and civil society scrutinises the actions of the French authorities. The principles of liberty, fraternity and equality must be guarded as closely during emergencies as they are during normality.
