France Should Not Turn Emergency Measures into Ordinary Law

This week, the French National Assembly debated a controversial anti-terror bill that would enshrine into ordinary law several restrictions on civil liberties that were originally introduced under France’s state of emergency. The draft law allows police prefects to authorize a range of measures using vague standards and with limited prior judicial approval, including searches, restrictions on individuals’ movements, designations of “security zones” in public places, and the closure of places of worship.

Despite concerns raised by a number of human rights groups, including Human Rights First, the French National Assembly is expected to pass the bill into law next week. Doing so will transform what French citizens recently considered “emergency” powers into a new normal, and will codify a law substantially lacking in safeguards against abuse.

This week, two U.N. experts (Fionnuala Ní Aoláin, the special rapporteur for the protection of human rights in the context of countering terrorism, and Michael Frost, the special rapporteur on the situation of human rights defenders) expressed concern over the bill’s vague language. They warned that the law, if adopted, could have implications on various human rights, including the rights of freedom of assembly, association, expression, and religion or belief.

One of the anti-terror bill’s key failings is that many of its provisions do not require prior judicial approval, and have only vaguely worded thresholds that hardly consider imminence or likelihood of a threat. This means that they can be used to authorize measures against persons or places without requiring sufficient connection to potentially criminal activity. Such broad discretion and vague standards magnify the law’s potential as a tool for discriminatory profiling.

At the same time, the draft law’s provisions are likely to do little to promote security. The French Parliamentary Commission responsible for overseeing the country’s state of emergency said that the emergency measures’ contributions to anti-terrorism, which the draft bill is supposed to replicate, have been “modest.” Worse, the discriminatory application of these measures reinforces existing social tensions and contributes to a cycle of alienation. This alienation, in turn, likely makes France’s extremism problem worse.

As the U.N. experts noted, France is an important global leader with a deep commitment to the rule of law and human rights. Apart from the damage done at home, when countries like France take measures inconsistent with human rights, they embolden less democratic and less rights-respecting countries to restrict human rights in the name of countering terrorism.

If France enacts this anti-terror bill, it will inevitably become more difficult for rights-respecting governments to criticize others for restricting human rights and eroding the rule of law via measures enacted in the name of promoting security.  One need look no further than Turkey for an example of a government that has cracked down viciously on civil society and peaceful political opposition under such a “state of emergency” following the country’s July 2016 attempted coup.

France is not alone in facing the complex and urgent problem of stopping violent extremism and protecting its citizens. Since the attacks of September 11, 2001, the United States has demonstrated through its own missteps that it is vital to our long-term security to confront violent extremism with strategies founded in respect for human rights. The lessons of the past 16 years should provide a cautionary tale in how to balance civil liberties with the need for security.

Accordingly, the U.S. government should voice concern to France about provisions of the draft anti-terror legislation that incorporate emergency measures into ordinary law. Laws that fuel a cycle of alienation are counterproductive. Both governments should pursue strategies for responding to extremism rooted in human rights. That means law enforcement on both sides of the Atlantic sharing best practices and research on how to limit discrimination and the underlying causes of extremism.