24 March 2022
The French government has proposed EU action against “entities or individuals” that are “active in the spread of radical rhetoric” as a way to stop “the spread of extremist and violent ideologies and to prevent the radicalisation of new actors.”
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A discussion paper circulated in the Council on 23 February [pdf] lists “the supremacist or neo-Nazi violent right-wing extremist scene... violent left-wing extremist movement... ultra-nationalist movements... Sunni radical Islamists... or Shia radicals,” as potential targets of measures that would be directed at “organisations or individuals who are not directly involved in the commission of terrorist acts, even if they have been active in the spread of radical rhetoric” (emphasis added).
Measures against “propaganda leading to terrorism,” asset freezing and EU-wide bans are listed as potential ways "to hinder the activity of such entities or individuals in a coordinated manner.”
The paper argues that (emphasis added):
“…it seems essential to go beyond the simple improvement of information sharing between competent authorities of the Member States, which is already efficient, to focus on better coordinating concrete measures. A genuine European mechanism directly targeting these "vectors" of radicalisation - whose precise details and objectives will have to be discussed collectively - could be put in place.”
Jumping on the ban wagon
The French government has worrying form in this area.
In December 2020 it ordered the dissolution of the anti-discrimination NGO, Collectif Contre l'Islamophobie (CCIF), alleging that it promoted hate, discrimination and violence and had engaged in actions aimed at provoking terrorism.
Human Rights Watch declared the dissolution of the CCIF as threatening “basic human rights and liberties including freedom of expression, association, and religion, and the principle of nondiscrimination.”
“Ten years ago, the dissolution of the CCIF was demanded only by the 'identitarian' groups of the ultra-right, which our association has several times had convicted for incitement to hatred and apology for terrorism… How have ideas still considered to be extreme right-wing, become normalized in public debate?”
The French authorities have also enthusiastically pursued pro-Palestinian Boycott, Divestment and Sanctions (BDS) campaigners with prosecutions and bans.
In June 2020 the European Court of Human Rights overturned a 2015 ruling that found 11 activists guilty of “incitement to economic discrimination” after a pro-BDS protest outside a supermarket, where they urged shopper not to buy products of Israeli origin.
More recently, two pro-Palestinian organizations, the Collectif Palestine Vaincra and the Comite Action Palestine were banned by the interior ministry, on the grounds of inciting “hatred, discrimination and violence against people because of their Jewish origin,” an accusation strenuously denied by the organizations and their supporters, amongst whom are multiple trade unions and civil society organisations.
The Collectif Palestine Vaincra argued that “the vast majority of cited reasons [for the ban] indicate that we are being targeted for ‘thought-crimes’ on Palestinian rights.”
The interior minister, Gérald Darmanin, has also shown enthusiasm for the possibility of banning a popular left-wing media outlet and forum, Nantes Révoltée, after it publicised an anti-fascist protest that ended in some broken windows and clashes between protesters and police.
It should be noted that the government has also sought to ban far-right groups, such as Generation Identitaire, which Darmanin has described as a “private militia” – although despite the move being authorized in May last year, the group’s website is still up and running.
From pre-crime to thought crime
The EU’s Fundamental Rights Agency published a report late last year (pdf) assessing the EU’s Terrorism Directive, which was last rejigged in 2017.
It found that national legislation implementing the Directive’s offences of public provocation to commit a terrorist offence and travelling for the purpose of terrorism was frequently “unclear” and “open to interpretation”, reducing “the foreseeability of what behaviour is criminalised and under what offence.”
Importantly, in light of the French Presidency’s new proposal, the FRA report notes that (emphasis added):
“The directive reinforced the focus of EU counter-terrorism legislation on preparatory offences, that is acts undertaken with the intent of committing or contributing to the commission of actual terrorist offences…
Respondents across professional groups, including those who investigate, prosecute and try such cases, express concern that such activities can be very far from an actual terrorist act. This approach marks a shift towards a preventive approach that criminalises certain activities based on their potential to lead to future terrorist offences.
FRA’s findings show that this can also affect lawful conduct, and may even discourage individuals from pursuing certain activities because they are concerned about the authorities’ interpretation of such activities. This has implications, in particular, for freedom of expression and information, freedom of the arts and sciences, and freedom of movement.”
The European Commission’s evaluation of the Directive (pdf) on the other hand, remarked that the limitations it imposes on fundamental rights “largely meet the requirements of necessity and proportionality,” and “overall has not had a problematic impact” on the rule of law.
No rights in sight
Amidst mentions of threats, violence, extremism, terrorism and radicalisation, the French Presidency’s paper makes no mention of the possible civil liberties and human rights implications of the proposals.
Who is to decide what counts as “radical rhetoric” or precisely which propaganda has or will “lead to terrorism”?
Perhaps national delegations in the Council’s Terrorism Working Party (TWP), the chosen forum for discussions on the matter, will address these issues in due course. How seriously they will consider them remains to be seen.
The topic of “actors contributing to radicalisation leading to terrorism” was on the agenda of the TWP's meeting on 28 February (pdf) where the Netherlands gave a presentation “on its national framework and measures,” and there was a discussion about the French Presidency paper.
The topic was due to be discussed again this week, on 23 March (link to pdf)/
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