Vanessa Codaccioni January 2018
The state of emergency, proclaimed by the President of the Republic François Hollande on the evening of the attacks of November 13, 2015[1], is a form of power that allows full control of a population, a territory, ideas[2]. Inherited from the Algerian war of 1954 to 1962, the state of emergency — this ‘matrix of uses of the exception’[3] towards which French governments are now turning to strengthen their anti-terrorist apparatus– evolved throughout its two years of existence, until some of its devices, such as administrative searches, were integrated into ordinary state law in October 2017[4]. Therefore, this two year period following the most deadly attacks in France illustrates one of the main consequences of exceptional measures: their emancipation from the ‘exceptional circumstances’ that officially justified their adoption[5] whilst progressively being integrated into the repressive apparatus of democratic regimes; in other words, their institutionalisation and banalisation.
But the state of emergency, reflecting contemporary anti-terrorism, also carries another aspect of states of exception, namely their deeply discriminatory character. One of the arguments often put forward regarding the fight against terrorism as a permanent state of exception is that it affects the entire population in an undifferentiated manner. However, if the countries fighting against jihad mobilise a set of intrusive measures (internet surveillance, wiretapping, interception of emails, etc.) which at first sight concerns all citizens, states of exception are primarily about targeting. They aim only at a small part of the population that becomes overcriminalised and stigmatized for its alleged extremism or level of threat. And because of both the focus of state agents on so-called ’Islamist’ terrorism, and the community profiling at work in counter-terrorism[6], the targets of the state of emergency in France have been primarily Muslims.
This situation is neither unique to France nor unprecedented. Since 9/11, the terrorist threat has been publicly associated with Islam as an ideology, as a mode of religious identification, as a way of life, and practices[7]. For example, the UK Home Office Minister Hazel Blears said in 2005 that members of the Muslim community should expect to be arrested by the police[8]. In France, this formula, ‘terrorist = Muslim’ is older, and goes back at least to the 1990s, when there was a radicalization of antiterrorism following the creation of a new offence: criminal association in connection with a terrorist enterprise. As part of an increasingly preventive and pro-active strategy (creating its own targets), this offence favours arbitrary and mass arrests. It notably gave rise to the largest French anti-terrorism trial, the Chalabi trial in which, at the beginning of 1998, 138 people were judged in the same court, sometimes only for having a copy of the Koran at home[9].
Also, the community and racial profiling happening under the state of emergency is anchored in a dual phenomenon: a focus by the authorities on people of Muslim faith, or identified as such, and a history of repression that discriminates racialised minorities. From the first weeks of the state of emergency, the figures given by the Minister of the Interior are striking: 2700 searches resulting in the seizure of 431 weapons including 41 weapons of war, 360 house arrests and 334 arrests, of which 287 were placed in police custody. However, not only have these measures led to very few legal proceedings[10], showing their inefficiency, but they have targeted predominantly Muslims who had no connection with jihadist networks. The state of emergency was thus used to assess the degree of danger posed by individuals already monitored by intelligence services and police, and who, if not linked to international terrorism, were simply considered ‘to practice a strict form of Islam’.
The work of lawyers employed during the state of emergency, and particularly those of the Collective against Islamophobia in France (CCIF), confirms this form of discrimination’s powerful repressive effects and, in some cases, illustrates the criminalization of Muslim practices. The CCIF’s legal permanent staff dealt with 427 cases related to the state of emergency in two years[11], that is to say more than four hundred complaints of discrimination concerning respectively search measures (297 cases), house arrest (100 cases), and exit bans (30 cases) [12]. Some cases, reported by Lila Charef, the head of legal services, are edifying[13]. In one case, a couple with young children living in a small rural town in which there were ‘figures’ advocating violence and Islam, were the subject of a search and house arrest. They saw about forty cars arriving, two helicopters, seventy gendarmes, and a detection dog used for weapons and narcotics raids. They then had to report three times a day to the police station, traversing more than 50 kilometres daily. Following an appeal against the order, the administrative court suspended it, considering that the allegations were not detailed.
Charef also mentions the case of a mother whose home was raided because, according to the search order, ‘she lives in a place where there are serious reasons to believe that she co-habits with one or more persons whose behaviour constitutes a threat to public security’. But it is only when her lawyers petitioned to have the decree annulled that the ‘real’ cause of this search was declared: her involvement in a Muslim association, the discovery at home of religious books, ‘allowing confirmation of her strict practice of Islam’, and ‘her dangerous entourage’, an entourage that had not been troubled by the police. And if the administrative court again annulled the decree, the mother was nevertheless stigmatised –an article evoking her supposed radicalization had appeared in the national press- and she also lost her job for ‘loss of trust’— the Prefect (the local representative of the Ministry of the Interior) had called her employer to inform him of the threat she posed to the state.
Illustrative of many cases not judicially prosecuted during the state of emergency –none of the cases handled by the CCIF have reached the antiterrorist prosecutor’s office[14] – these examples shed light on the racial profiling of antiterrorism in the state of emergency, particularly against the vulnerable; antiterrorism that aims above all at targets put in a position of legal inferiority and confronted with the effects of the logic of the exception . This discrimination, often hidden, is central to the practice of repression by the way of exception, the objective of which is to separate, distinguish, stigmatise. A form of exceptional justice, it divides the population into two categories: the one that must be protected and in whose name security provisions are deployed, and the one that suffers daily measures that are contrary to fundamental public freedoms and guarantees, and therefore lives in a permanent state of emergency.
Finally, it seems important to note that in addition to the proliferation of Islamophobic acts following the attacks of November 2015[15], many provisions related to the state of emergency were applied as a result of slanderous denunciations: people of Muslim faith were denounced by a neighbour, colleagues, a former spouse, or members of their family, particularly in the case of converts. The state of exception relies on denunciation practices as much as it fuels them.
Vanessa Codaccioni is an Historian, Lecturer in Political Sciences at Université Paris 8. She is the author of “Justice d’exception. L’Etat face aux crimes politiques et terroristes”, CNRS Editions (2015).
1] L’état d’urgence, inventé pendant la guerre d’Algérie (1955-1962), a été décrété par le Président de la République le 14 novembre 2015. Le 20 novembre, sa prolongation pour trois mois a été voté à la quasi-unanimité par les assemblées. Par le biais de prolongations successives, il est resté en vigueur jusqu’au 1er novembre 2017.
[2] Sur l’histoire de l’état d’urgence en France et ses dispositifs de contrôle, voir : Sylvie Thénault, « L’état d’urgence (1955-2005). De l’Algérie coloniale à la France contemporaine : destin d’une loi », Le Mouvement social, n°218, p. 63 à 78.
[3] Vanessa Codaccioni, Justice d’exception. L’État face aux crimes politiques et terroristes, Paris, CNRS Éditions, 2015, p. 15.
[4] Loi du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme.
[5] Comme le note Giorgio Agamben : Homo Sacer. Etat d’exception, Paris, Seuil, 2003, 151p.
[6] Vivienne Jabri, « La guerre et l’État libéral démocratique », Cultures&Conflits, n°61, 2006, p. 7.
[7] Ibid.
[8] Ibid.
[9] Vanessa Codaccioni, Justice d’exception…, op.cit., p. 287 à 290.
[10] En décembre, seule deux enquêtes préliminaires ont néanmoins été ouvertes par la section antiterroriste de Paris.
[11] « Etat d’urgence : le CCIF dénonce le ciblage tout azimut des musulmans », Le Monde, 10 février 2016.
[13] Lila Charef, « Les conséquences de l’état d’urgence sur la société française », Colloque Etat d’urgence : usages contemporains et évolution des normes, Université Paris 8 site Pouchet, 26 octobre 2017.
[14] Intervention de Lila Charef lors d’une conférence de presse organisée par la CNCH le 29 septembre 2017.
[15] « Etat d’urgence : le CCIF dénonce le ciblage tout azimut des musulmans », Le Monde, 10 février 2016.