Is the creation of new offenses the right answer to the Toulouse tragedy?

Written by Jennifer Castello Monday, 26 March 2012
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France, over the last decade, despite the ongoing controversy centered on the veil and other issues, has been less affected by the broad phenomenon of contemporary terrorism than many other European countries.

Toulouse has been this past week the center of attention. It started with the murder of a paratrooper Ibn Imad Ziaten on 11 March, which marked the beginning of a series of fatal shootings perpetrated by a man travelling on a motorbike, soon tracked down by an unprecedented police investigation. 15 March, a weapon of the same caliber was used to kill two other soldiers near their barracks in Montauban (30 miles North from Toulouse), Abdel Chennouf and Muhammed Legouad. A third soldier, Loic Liber was serisouly injured.
The case took a slightly different turn when on 19 March, another shooting occured in a Jewish school in Toulouse, Ozar Hatorah, killing a teacher and his two children aged respectively 3 and 6 as well an other student. A large scale man hunt began, the “Plan Vigipirate” was put in motion, 200 men were commandeered to work on the investigation and the terrorist unit in Paris was included in the case.
The investigation led to Mohammed Merah, aged 23, on 20 March as he appeared to be under surveillance after being trained in camps in Aghanistan and Pakistan.  He took up position in his flat as it was under siege by the RAID and  mentioned to the police that he was fighting for the cause of Palestinian children and that he was a member of Al Qaeda.  However every piece of information has to be taken carefully as none of it have been verified yet, and we are still waiting for full confirmation that he did indeed spend time in Southeast Asia and details of what he did there. After 35 hours, the Police entered his apartment through the door and the windows. As they arrived, Merah burst out of the bathroom, shooting officers and apparently diving out of a window. Officials say later he was shot in the head out of self defence, as stated by the chief prosecutor.
France, over the last decade, despite the ongoing controversy centered on the veil and other issues, has been less affected by the broad phenomenon of contemporary terrorism than many other European countries. Unlike the UK and Spain, there have been no mass casualty attacks and there has been no high-profile assassination such as that of Theo van Gogh the film maker in the Netherlands. And while there may be a debate about which European state has had the most experience dealing with terrorism- Germany with its Baader-Meinhof Group, Italy with its Red Brigades, Spain with the Basque separatist group or even the UK with the IRA- there is no question that France has had as much experience with the most virulent forms of modern terrorism.
Whereas 9/11 was a shock to the American political and judicial establishment, it was not a revolution in policy in France. Since the end of the 80’s France has become the most accomplished counterterrorism practitioner in Europe granting highly intrusive powers to the internal security service (the DCRI), or to counterterrorist investigative magistrates (juges d'instruction) and creating a derogatory judicial system for terrorist suspects as well as implementing securitarian policies restricting and damaging civil liberties under the name of the War on Terror. Policies that have been the pride of successive governments and ministry of interiors for the last decade however just showed their weaknesses and counter productivity.
Instead of assessing its ineffectiveness and trying to look for a better solution in full respect of fundamental human rights and civil liberties, President Nicolas Sarkozy an hour after the death of the suspect in Toulouse, announced a rewriting of the texts regarding terrorism. As always, a tragedy brings a new restrictive law in France, this case is not derogatory in this sense. President Sarkozy promised to put in place three majors projects reforming the French criminal code. First of all, this sounds above all very demagogic as we all know that the President and its government have one month left before the presidential elections and that the Parliament – the unique body in charge of allowing this type of reforms under article 34 of the constitution - is in recess until June 26 after the election.
Step aside, the fact that it might be in any case impossible to pass those reforms at least before the election, it is also a legal heresy.
First reform is the creation of “the offense of regular consultation of websites glorifying hate and/or terrorism”. This seems to be the extension of the already existing offense to consult on a regular basis websites showing pictures of minors of a pornographic character – which is punished by a 30 000 Euros fine and 2 years imprisonment under article 222-23 of the criminal code. Since its creation in 2007, this article seems to have permitted only one condemnation. This can be explained by the difficulty to apply such definition in practice. Which will be the same for a website glorifying terrorism and/or hate, what does “on a regular basis” mean exactly? After how many times do we consider it as “regular”? What about scientists, scholars or even students visiting those websites - will they go to jail? Also the problem will be the characterization of a website glorifying a terrorist group. What is a “terrorist group”? As this can be different from a country to another and so where will be the line between an extreme political party and a group defined as terrorist? For instance Batasuna, the Basque country political party for independence, is forbidden in Spain however allowed in France so will it be considered as a political or as a terrorist website? This new offense will also prevent people from reading historical biographies like “Mein Kampf” for instance, however available on papers in libraries.
The second offense proposed by the President is “the fact of going on indoctrination trip abroad”, which is even more surprising. What will be the legal definition of an indoctrination trip? Would a trip organised by “les jeunesses de l’UMP” (the President’s political party) be considered as one? It is all a matter of interpretation. More dangerous is the fact that this will be in breach of freedom of movement and of the right to travel as provided by the European Convention of Human Rights.
Also difficult will be the problem of the evidence to be brought. How do they intend to prove that the trip was made in order to be trained in indoctrination’s camp? It is to be scared that some destinations and some travelers will be immediately stigmatized and be considered as suspects as such. We could also imagine, that one of the question to be put in the landing form from now on will be “did you or did you not attend any indoctrination travaux while traveling?” …
And last but not least, the offense of “spreading extremist ideologies” meets the same legal issues. However inspired by the offense of spreading ideology denying the existence of the Holocaust, these two are different as the latter is only related to the Holocaust which has been recognized as a genocide by the Nuremberg tribunal. In this case, what is the definition of an extremist ideology? Will it become an offense to spread anti abortion doctrine for instance? This is a flagrant violation of the right to freedom of expression and information. And yet, the president should remember that recently his law criminalizing the denial of the Armenian genocide got rejected by the Constitutional Council and declared illegal as in breach of freedom of expression.
Those reforms won’t hopefully see the day of light as they sound like a legal improvisation from a candidate running for the elections more than from a President. In the middle of a heated presidential campaign, politicians and their supporters will inevitably point the finger at the political and religious identity of the killer, questioning the place of Islam and Muslims in the country so let’s hope this will not turn into more stigmatisation of the Muslim community in France and will not be a justification for racism and intolerance which will be detrimental to integration policies, that should be implemented and developed in order to avoid any other Mohammed Merah.  
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