The outraged reaction to a proposal to remove the offence from the penal code reveals authoritarian and Islamophobic trends within the French establishment
The bill tabled on 19 November by Ugo Bernalicis, a member of the left-wing party France Unbowed (La France insoumise, LFI), to remove the incrimination of “apology for terrorism” from the penal code has sparked a fierce controversy in the country.
This provision has, in fact, been widely used since 7 October 2023 to criminalise statements of support for the Palestinians.
Critics immediately went wild. “It must be fought with the greatest force,” declared Justice Minister Didier Migaud. Interior Minister Bruno Retailleau was outraged, saying: “It is difficult to do [anything] more despicable.”
Even within the ranks of the Socialist Party (Parti socialist, PS), an ally of France Unbowed, regional elected official Carole Delga denounced a “moral failure in the face of the victims of terrorism and the bereaved families”.
The less severe commentators criticised LFI for a justified but solitary and poorly worded initiative. However, no political leader and few TV debate hosts considered it necessary and legitimate to address the substance of the subject.
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LFI MP Manuel Bompard commented by saying that he was “flabbergasted by the Trumpification of the debate” and “the intellectual laziness of the media class”.
The intent of the bill was not simply to repeal the criminal offence of apology for terrorism but to return it to the press law, from which it had been taken and integrated into the penal code by legislation adopted on 13 November 2014.
The urgent need at the time was to counter the propaganda of organisations claiming to be part of the so-called “international jihad” in the context of the proclamation of a caliphate by the Islamic State (IS) in Syria and Iraq in June 2014.
The group’s propaganda aimed to seduce young Europeans by glorifying its fighters, with the goal of enlisting them or mobilising them to commit attacks in Europe. The press law was totally unsuitable for facing this phenomenon.
The point of the 2014 legal change was mainly to lift the constraints that slowed down investigations, authorise pretrial detentions and immediate court appearances, allow for evidence seizures, and mobilise anti-terrorism surveillance resources.
In the traumatic, if not hysterical, atmosphere generated in France by the January and November 2015 attacks, the number of reports – encouraged by the government – for comments made on social media, in the workplace or even at school increased from 1,500 to 35,000 in one year.
Criminalisation of simple comments
But since the Hamas-led attack on Israel on 7 October last year, the use of the qualification of apology for terrorism has experienced a new surge.
As early as 10 October, then-Justice Minister Eric Dupont-Moretti instructed prosecutors to pursue “public remarks praising [these] attacks, presenting them as legitimate resistance to Israel, or the public propagation of messages inciting a favourable judgment on Hamas or Islamic Jihad because of the attacks they organised”.
Hundreds of investigations have been launched. By the end of January 2024, Le Monde counted 626 such enquiries targeting ordinary citizens, influencers, students, members of civil society organisations, union activists, journalists, academics (such as Francois Burgat), political leaders, local elected officials and even two LFI high-profile members: MP Mathilde Panot and future MEP Rima Hassan.
The vast majority of French political, media and intellectual elites have integrated the Israeli narrative. Those who deviate from it are treated as heretics, either “antisemitic Islamists” or “collaborators”
For having equated Hamas’ “heroic” action to an act of “resistance”, an activist was sentenced to pay €3,000 ($3,120) in damages to Jewish organisations that filed a civil suit against him. He was also added to the national register of terrorist offences perpetrators, FIJAIT, for 10 years, requiring him to report his home address every three months and notify authorities of any international travel at least two weeks in advance.
Among the most emblematic cases was that of a union leader, Jean-Paul Delescaut, sentenced in April to a one-year suspended prison sentence for a leaflet published by his organisation which stated that “the horrors of the illegal occupation have accumulated. Since Saturday, they have been receiving the responses they provoked”.
The mere reminder of the historical context was considered a justification, as it failed to express sufficient moral disapproval, according to the terms of the judgment.
People with Arab-sounding names have particularly aroused suspicion and police have paid a lot of attention to signs of religious practice, as though such practices indicate a predisposition to terrorism – reducing the conflict to a confessional clash devoid of any political rationality.
Warnings ignored
Critics of the legislation proposed by LFI have deliberately ignored years of warnings issued by various authoritative human rights organisations about France’s apology for terrorism law.
In 2017, ombudsman Jacques Toubon expressed his deep concern for “a vagueness incompatible with freedom of expression and information” and warned against the “targeting of a section of the population” (ie Muslims).
In a report issued in May 2019, the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism highlighted “the weighty effects of the offence of ‘apology for terrorism’ on the right to freedom of expression”.
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The report stated: “The law is broadly drafted, engaging significant legal uncertainty, enabling discretionary overreach and affecting the protection of free expression and the open exchange of ideas in a robust democracy.”
More recently, in April, the National Consultative Commission on Human Rights (CNCDH) explained to the justice minister that its circular “may have generated confusion between approval, praise of a crime and/or criminals, and stances relating to the context in which they were committed. The latter are part of a debate of ideas and should therefore be able to enjoy freedom of expression”.
Even a former anti-terrorist judge, Marc Trevidic, who had recommended the inclusion of the apology for terrorism offence in the penal code at the time, denounced“a totally perverted use of the law” last October.
“A simple tag in support of Palestine makes you risk prison,” he wrote, calling for “a U-turn”.
Judges as guardians of dogma
In such an atmosphere, the LFI bill has little chance of being included on the parliamentary agenda. On the other hand, the irrational fury it has triggered says a lot about the evolution of the public debate in France.
The time when Jean-Paul Sartre could say, the day after the hostage-taking of Israeli athletes at the 1972 Munich Olympic Games by the Black September organisation, that “the Palestinians have no other choice for lack of weapons, defenders than to resort to terrorism” seems far removed from today.
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The philosopher’s statement, while not consensual, resonated with the still vivid historical memory of national liberation struggles.
One may even think that if two former presidents, Charles de Gaulle and Georges Pompidou, were alive in our time, they could have been targeted by a denunciation for the apology for terrorism. In November 1967, Charles de Gaulle declared: “Israel is setting up in the territories it has captured an occupation that will inevitably involve oppression, repression and expulsions, and a resistance to this occupation is forming, which Israel in turn classes as terrorism.”
After the Munich events, Pompidou said: “We will not eliminate Palestinian terrorism if we do not have some kind of solution to the Palestinian problem.”
Since 11 September 2001, the US “war on terror” rhetoric has progressively globalised the definition of terrorism as the figure of absolute evil, abstracted from any historical context, for which only the perpetrator bears responsibility.
The attacks committed on European soil by IS have allowed Israeli leaders to popularise their narrative of terrorism as a global threat against the West and an ideology carried by political Islam – or even by Muslims as a whole.
Therefore, any attempt to rationally explain its causes is regarded as a reprehensible way of justifying it. Faced with this vital danger, only the use of limitless violence is seen as the legitimate response.
The vast majority of French political, media and intellectual elites have integrated the Israeli narrative into the republican orthodoxy. Those who deviate from it are treated as heretics, if not “inner enemies”, labelled either “antisemitic Islamists” or “collaborators” – a term loaded with historical significance in France, where it was used to describe Nazi allies during the occupation from 1940 to 1944.
Judges, contrary to their traditional calling as “guardians of freedoms”, are set to become the guardians of dogma. Contrary to Clausewitz’s adage, according to which war is the continuation of politics by other means, in France, the law – or rather, the political use of the law – has become the prolongation of war in the realm of public opinion.
The same trend is at work in Germany and the United States. The war waged by Israel is accelerating the authoritarian and xenophobic drift of the states that support it.
The article is originally published by Middle East Eye.
