By
Sarah
Sherif Abdelaziz
In the first part ,
we tackled the security, immigration, and anti-terror laws in the UK.
In this part, we will go through the anti-terror laws of another two
European countries —namely Germany and France.
[islamonline.net] France and
Germany have for a long time been victims of terrorism. For instance,
Germany has faced both domestic and international terrorism[i],
with right wing political violence against foreigners in Germany which
also challenged national security. Moreover, the Red Army Faction which
was considered –postwar– West Germany’s most violent and prominent militant left-wing terrorist
group operated until the 1990’s. And on the international level,
Germany was also place for what the Westerners regard as Islamic
Extremism when the Munich massacre occurred at the 1972 Summer Olympics[ii].
France, in the 1960s witnessed Left Wing political disorders which led
the environment in France to be characterized by radical leftist
sentiment on university campuses including intensive demonstrations and
rioting in Paris[iii]. Another form of terrorism occurring in France was in 1995 when it faced the Paris Metro bombings[iv] led by Middle Eastern terrorists.
In the years following the September 11th
attacks, a large number of Muslims have been arrested and detained;
most of the time released without charges. These governments have
passed laws with the intention of tightening security and seeking more
protection, however, greatly affecting one’s personal life, liberty,
and in many cases future.
What
are the applicable anti-terror laws in France and Germany? What about
the civil liberties and personal rights in these countries? We will
attempt to reply to all these questions and more in the coming detailed
part.
- Which terrorism-related laws are enacted in France and Germany?
- How is the term "terrorism" defined in the legislations of these countries?
- What are the areas that should be taken into consideration with these laws?
1. Which terrorism-related laws are enacted in France and Germany?
France:
France relies on the criminal justice system to combat terrorism[v]. In 1986,
a law centralizing a judicial system for terrorism offences, which
extended police custody to 4 days was introduced. As a result of the
terrorist mishaps that took place in Paris’s metro in 1995, the law was
amended/extended in 1996. The 1996 law enables
the agencies responsible for terrorism-related issues to take
pre-emptive actions to defer any expected terrorist crimes. As amended
in the latter law, acts of terrorism are set forth in articles 421-1 to
421-5 of the criminal code (Code Pénal)[vi].
After the September 11th attacks a number of laws related to money laundering were extended to include the financing of terrorism[vii]. After the July 2005 bombings in London, the 2006 law
was enacted to increase the punishment of a serious felony to 20 years
when a terrorist criminal association was formed, and up to 30 years to
the leaders of such criminal association. Moreover, the 2006 law
increased –under certain conditions- the maximum period of police
custody in terrorism cases to six days[viii].
On December 1st 2008, France’s National Assembly
adopted legislation aimed at prolonging (to 31 December 2012) the
applicability of the 2006 Anti-Terrorism Law on the administrative
acquisition of personal data, controls in trains and law enforcement
access to databases[ix].
Germany:
Membership of a terrorist organization is made illegal under article 129a of the German Criminal Code (Strafgesetzbuch, StGB)[x]. Specific anti-terrorism measures include the 2001 and 2002 Anti-Terrorism Package. After the September 11th attacks a German legislation (which was prepared before the attacks) was adopted as the 2001 First Anti-Terrorism Package. A more direct response to the attacks on the US was crystallized in the 2002 Second Anti-Terrorism Package. However, the 2002 act has been supplemented by the 2007 Act Supplementing the Anti-Terrorism Act (Terrorismusbek?mpfungserg?nzungsgesetz)[xi].
A US State Department report states that with the extension of the 2002
law for five years, now the role of intelligence services in Germany in
counter-terrorism activities has been broadened and the extension has
made it easier for security agencies to obtain personal data of
suspects such as travel, financial, and telephone data[xii].
2. How is the term "terrorism" defined in the legislations of these countries?
It is known that there is not one unified universal definition for the
term terrorism partly because one man’s terrorist is another man’s
freedom fighter, and also because of daily developments that occur
which would make it very difficult to encompass all acts of terrorism
in one definition. Thus, defining terrorism remains a subject for
discussion in international bodies and forums.
France:
France defines terrorism as “an act by an individual or group that uses intimidation or terror to disrupt public order[xiii]". As
seen, the law is very broad and could cover any activity that causes
disruption to the public order even if “just” a criminal act.
Germany:
Article 129a of the Criminal Code defines terrorism as “unlawfully
coercing an administrative body or an international organization or of
abolishing or significantly impairing the political, constitutional,
economic or social structures of a state or an international
organization[xiv]”.This
led critiques to describe Germany’s terrorism definition as “no
specific definition” with no additions to the substantive law since the
11th of September attacks on the US[xv]. Yet, some procedural changes have been made in 2002 to reinforce the “policing of domestic terrorists”.
3. What are the areas that should be taken into consideration with these laws?
Terrorism laws and acts in these countries allow the responsible
authorities to undertake many measures for the combat of terrorism.
Thus, in the following list of questions and answers we shall shed
light on the developments in detention-related matters, control orders,
diplomatic assurances vs. the expulsion/ deportation of terrorist
suspects, impact on asylum laws and regulation, civil liberties
(freedom of speech, the criminalization of thoughts; access to data and
personal privacy), how ethnicity is used as a ground for detaining
terrorism suspects, and Muslims being the victims of suspicion in most
cases.
i. Period of detention:
France:
The 2006 law increased –under certain conditions- the maximum period of police custody in terrorism cases to six days.
The norm is that the suspect is held up to four days for police
questioning, and increases to six days when there is proof an attack is
being prepared, after that the case is transferred to an investigating
judge; this means that the suspect might stay in detention for long
periods, yet he/she has the right to appeal against it.
Germany:
Germany does not have pre-charge detention, but acts within “Provisional Police Custody[xvi]”, which is the period before a formal warrant of arrest is issued by a court. The longest period is 2 days (48 hours) as the person arrested must be set free at the end of the day following the day he/she was arrested.
ii. The right to remain silent!
France:
Suspects are not entitled to see their lawyer until
after 72 hours, and even then the lawyer is usually only allowed 30
minutes with the suspect. The suspect can usually notify his
representatives of his arrest, but that privilege can be denied by the
prosecutor if it is believed it might prejudice investigations (often
is in terrorism cases). The suspect is also NOT notified of his/her
right to silence and can be interrogated without his/her lawyer present[xvii].
Germany:
Section 38a of the Incommunicado detention legislation enacted in 2006
in Germany to be used in terrorism related cases and others (such as
mafia) gives possibility that detainees (terrorism suspects)
be completely isolated from their defense counsels for up to thirty
days (this period could be extended to an indefinite period of time
provided that certain requirements are met)[xviii].
iii. What do Control Orders entail?
Neither France nor Germany has explicit acts allowing the enacting of
control orders. In Germany for instance Preventive Measures are more
directed towards a suspected act of terrorism rather than a suspected
terrorist. Preventive measures include the Counter- Terrorism
Supplement 2007 which facilitates access by the Federal Office for the
Protection of the Constitution to airline information about flights
booked by suspicious persons and the threshold for disclosure of
information orders is lowered; this in addition to the enforcement of
other acts such as The Act on Joint Databases, The Aviation Security
Act, Transmission of passenger name records (PNR), Fingerprints in
German Passports, and the ban of extremist religious associations[xix].
4. The combat of terrorism and the promotion of diplomatic assurances
The 1951 Convention Relating to the Status of Refugees affirms that no
refugee lawfully in the country of asylum is to be expelled except
“where compelling reasons of national security otherwise require”.
However, other international law instruments (International Covenant on
Civil and Political Rights ICCPR and UN Convention Against Torture CAT)
ban the return of individuals to countries where they might be tortured
or face other human rights violations.
In October 2007, the French, German and British Ministers of Interior
along with the ministers from Italy, Poland and Spain gathered in the
G6 meeting and issued a joint declaration that should “ideally” further
promote security to EU citizens. Clause 3 of the joint declaration
mainly tackles anti-terrorism measures to be undertaken such as the expulsion of terrorists relying on diplomatic assurances. “Ministers have noted that in some legally regulated cases expulsion
has proved an effective tool to protect people from non-nationals who
pose a threat to national security… The G6 believes that the mechanism
of seeking assurances, on a government-to-government basis, designed to
secure this protection, could provide an effective way forward in some cases…
The G6 Governments will initiate and support continued exploration of
the expulsion of terrorists and terrorist suspects, seeking assurances
through diplomatic understandings, and other policies[xx]”.
Thus, the real problem posed here is that expulsion is directed to terror suspects
and not only ascertained terrorists which gives room for innocent
people being deported and sent back to countries whose authorities have
high records of maltreatment and torture and the chances for deportees
to a fair trial are nil; which is not only an inhumane act to do but
also against international human rights law. Moreover, expulsions can
interfere with the right to family and private life of the individuals
removed and their relatives in a manner that also breaches
international human rights law.
France:
In 2003, a new law came into force which made it substantially
easier to deport individuals who “have committed acts justifying a
criminal trial” or whose behavior “threatens public order”. Earlier
versions of this law gave police the power to deport foreigners for
participating in political demonstrations[xxi].
Additionally, France modified its Immigration Code in 2004 to allow for
expulsions for “incitement to discrimination, hatred or violence
against a specific person or group of persons”[xxii].
In a report submitted by Human Rights Watch to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights[xxiii],
it is stated that almost 71 individuals described as “Islamic
Fundamentalists” and 15 of which are described as Imams were forcibly
expelled from France in the period between September 2001 and September
2006.
The ground upon which they were expelled is that they were accused of
having links to terrorism and extremism. What remains the problem is
the lack of foreseeable assurances that these deportees would not face
maltreatment and torture when they arrive to the country of return. A
case Human Rights watch puts forward is that of Adel Tebourski, a
French-Tunisian national whose “acquired French citizenship was
stripped in order to expel him to Tunisia in August 2006”.
Moreover, cases of expulsion included individuals who were accused of a fundamental civil liberty which is “speech”.
Human Rights Watch confirms that the involved individuals did make
statements that are offensive in nature, yet their speeches did not
stimulate a call for violence whose punishment would be an interference
with the right of freedom of expression and expulsion.
Germany:
Germany’s Residence Act has been amended to include a
provision on “Expulsion”. Expulsion would apply to non-EU citizens who
are viewed as terrorist. This provision is one of Germany’s preventive
measures to a terroristic threat or a “special threat to the security
of Germany[xxiv].
In a report prepared by Amnesty International to submit to the United Nations[xxv],
Amnesty expresses its concern that anti-terrorism measures in Germany
are giving rise to human rights violations. It is particularly
concerned about the diplomatic assurances Germany keeps seeking to
deport terrorist suspects to states where they might face torture,
ill-treatment and unfair trial.
For example, Germany did not only seek diplomatic assurances from
Algeria but also provided it with a list of Algerians who are suspected
to be involved in terrorism related activities. Amnesty International
is concerned that handing over such a list might have put the
individuals at increased risk of grave human rights violations in case
of return.
Moreover, Germany sought similar assurances (this time “oral”
assurances) from the Tunisian government regarding two Tunisian
nationals suspected of having links to organizations involved in
terrorism. The oral assurances were considered sufficient by Germany
that the two Tunisians shall not be exposed to torture and other
ill-treatment although in at least one of these cases the Federal
Office for Migration and Refugees had earlier decided that the
individual should not be deported to Tunisia because of a real risk of
being subjected to torture or other ill-treatment.
5. Anti-terrorism measures and their impact on asylum laws and regulations
After the September 11th
attacks on the US, the governments of France and Germany started taking
more restrictive measures on granting asylum seekers refugee status
particularly those from Muslim backgrounds.
France:
In 2003, when Nicholas Sarkozy was the French Minister of
Interior, a law that controls immigration and the stay of non-French in
France was adopted, this law led to complicating asylum seeking and
facilitated (for the French government) the process of expelling asylum
seekers.
After some youth riots took place in November 2005, immigration laws
were further tightened. There is argument over the reason for such
riots, where academics and analysts say it is due to socio-economic
factors, the French right-wing government and politicians linked the
violence that took place to Islam and immigration[xxvi].
In September 2007, another bill backed by Presented Sarkozy was
presented to parliament. The bill would authorize DNA testing for
immigrants and require applicants to pass language examinations and
prove they can support themselves (meet a minimum income level)[xxvii].
The bill was adopted by the parliament in October 2007; and now the law
tightens the rules on family reunification and creates an in-country
appeal for failed asylum seekers detained at the border.
It is worth noting that the bill was criticized by human rights
activists and French MPs as “offensive, inhumane and morally
abhorrent”. The French Constitutional Court did not challenge the
amendment allowing for DNA testing; however, it did warn against
“systematic” use of DNA tests. Furthermore, the court did not find
voluntary DNA testing limited to establishing a direct link with the
mother to be “unconstitutional”. Lastly, parallel to the passing of the
new immigration law, it was aimed by the Ministry of Immigration in
France to impose a quota of 25,000 expulsions by the end of 2007[xxviii].
Germany:
Migration Policy Group announced in July 2008[xxix], that Germany continues to encourage the European States to offer asylum to certain groups of Iraqis referring to religious and ethnic minorities but clearly meaning offering protection to Christian Iraqis only.
On a different note, Amnesty International[xxx]affirms
that extradition of refugees in Germany is not often, yet numbers of
refugee detainees to be extradited has increased in the past two years.
Amnesty also states that the main group being affected are the Turkish
nationals.
6. How are civil liberties and personal rights being affected by the newasylum and terrorism laws?
i. Freedom of expression/ possession of terrorist materials
France:
In June 2008, the French Minister of Interior announced that internet
sites containing content related to terrorism and racist hatred as well
as child pornography shall be blocked[xxxi].
Not elaborating on the level at which content would be viewed as
related to terrorism leaves the door open to arrests/detentions and
other measures to be taken by the government under the notion of
preventing terrorism.
Germany:
In Human Rights Watch 2008 World Report, it is stated that the German
government is in the process of proposing an offense “instructions for
an act of violence”. The offense would apply to anyone distributing
instructions over the internet on building bombs –for use in an attack.
The offense goes further to apply to anyone who would download such
instructions, which triggered opponents to the offense saying that
criminalizing internet use infringes privacy rights[xxxii].
ii. Access to data and interference with personal privacy
France:
Data conservation and retention policies in France request that
technical intermediaries for internet access to act as “state agents”,
also the authority of the French Data Protection Authority powers has
been limited to the control of government administration. Moreover,
laws in France give police access to personal data without prior legal
authorization.
It is also argued that provisions designed to fight terrorism have been
extended to fight migration as well, as in France there are provisions
for the monitoring of passenger name records of people traveling by sea
between France and North Africa, which specifically target non European
immigrants and foreign residents[xxxiii].
Germany:
Where terrorism danger is foreseen in Germany, a judge’s approval to
government agencies to access personal data and conducts of lives will
be given. Laptops, PDAs (Personal Digital Assistants) and mobile phones
are amongst the information technical systems that shall be searched.
The German Constitutional Court’s ruling on the 27th of February 2008, also gives strict exceptions for breaking one’s basic right of confidentiality and privacy.
EDRI[xxxiv]states
that these exceptions shall only occur when “there are "factual
indications for a concrete danger" in a specific case for the life,
body and freedom of persons or for the foundations of the state or the
existence of humans… They do not, however, need a sufficient
probability that the danger will materialize in the near future”.
The ruling further states “if these rare conditions are met, secret
online searches may only be used if there are steps taken to protect
the core area of the private conduct of life, which includes
communication and information about inner feelings or deep
relationships. These protections have to include technical measures
that aim at avoiding the collection of data from this core area… If
there are concrete indications in the specific case that a certain
measure for gathering data will touch the core area of the conduct of
private life, it has to remain principally undone." If data from this
core area is accidentally collected, it must be deleted immediately and
cannot be used or forwarded in any case”.
It is also reported that this ruling has attained mixed
reactions, where some opposition parties and civil rights organizations
have welcomed the ruling and its tight restrictions against government
agencies to practice their searches; others and mostly bloggers have
raised their concerns about the exception clauses and the extent to
which they shall be stretched by the government in future legislation
and practice.
7. Impact on Muslim communities in France and Germany
France:
In the White Paper on Domestic Security against Terrorism, by Dominique
de Villepin, former Prime Minister of France, he is quoted “We must
avoid the trap of a ‘clash of civilizations’ that has been set by global Islamist-inspired terrorism and we must refuse the conflation of Islam and terrorism that this movement seeks to provoke[xxxv]”.
However, in real life sources argue that since the September 11th
attacks on the US in 2001, and Muslims (especially the young) have been
under great police scrutiny. It is also argued that young Muslims
are usually harassed in identity checks particularly in cities which
have high levels of crime; unfortunately, “police admit to using ethnicity and age as criteria for evaluation during security interventions on the ground”[xxxvi].
Muslims leaders and representatives as well as working Muslims are
under surveillance and suspicion. Background checks on Muslim employees
were/are conducted to ensure that they are not members of any terrorist
group; it is even stated that some companies were asked to dismiss
groups of Muslim workers.
As always, France’s policies for integration could be more proscribed
as policies for assimilation. This is very clear in Sarkozy’s views on
Islam and immigrants in France. Quoting from euro-islam.info[xxxvii],Sarkozy -when questioned by prime-time news- “made it clear Islam is at the centre of the debate: immigrants will have to learn French and “learn to respect the country.”
For Sarkozy, this means “accepting French laws, even if they don’t
understand them,” because “it is up for them to adapt, not for France.”
In barely- concealed references to the Muslim problem, Sarkozy argued
forcefully that immigrants must accept the publication of religious
cartoons in newspapers; women must provide uncovered photographs for
identity cards, and they must accept to be treated by male doctors”.
Germany:
In April 2002,
Germany’s federal states’ criminal investigation department collected 6
million personal records, taking out 20,000 that were considered
“potential suspects”. The German system of religious profiling of
foreign nationals from Islamic states is said to have based its
profiling on the following: to be of –presumed- Islamic religious affiliation, aged between 18 and 24, and not to have previously come to the notice of the criminal investigations department[xxxviii].
Moreover, Amnesty International also highlights human rights violations
Muslims in Germany face by German organizations on a regular basis[xxxix].
[i]http://www.washingtontimes.com/news/2007/oct/02/germanys-new-role-against-terror/
[ii]James Riordan, Arnd Krüger, 1999, “The International Politics of Sports in the 20th Century”, Taylor & Francis.
[iii]Gus Martin, 2006, “Understanding Terrorism: Challenges, Perspectives, and Issues”, p. 224, SAGE.
[iv]For the Principal Threats Against France since 1998, please view p.129:
[v]http://www.hrw.org/en/node/62151/section/4
[vi]you can view the text of the Penal Code
[vii]http://www.fco.gov.uk/resources/en/pdf/4175218/counter-terrorism-Oct05
[viii]http://www.hrw.org/sites/default/files/reports/france0708_1.pdf
[ix]http://www.icj.org/IMG/E-Bul-Dec08-Final.pdf
[x]For the whole text of the criminal code, please visit:
[xi]Christian
Walter, Submission to the Eminent Panel on Terrorism, Counter-Terrorism
and Human Rights, European Union Sub-Regional Hearing, Brussels, July
2007
[xii]http://www.state.gov/s/ct/rls/crt/2007/103707.htm
[xiii]International Research Center on Terrorism
[xiv]Christian
Walter, Submission to the Eminent Panel on Terrorism, Counter-Terrorism
and Human Rights European Union Sub-Regional Hearing, Brussels, July
2007
[xv]http://security.homeoffice.gov.uk/news-publications/publication-search/terrorism-act-2000/carlile-terrorism-definition.pdf?view=Binary
[xvi]http://www.liberty-human-rights.org.uk/issues/pdfs/pre-charge-detention-comparative-law-study.pdf
[xvii]http://www.brookings.edu/testimony/2008/0715_terrorism_shapiro.aspx
[xviii]Section 38a of the Introductory Act to the Judicature Act(Einführungsgesetz zum Gerichtsverfassungsgesetz, hereinafter EGGVG
[xix]Christian
Walter, Submission to the Eminent Panel on Terrorism, Counter-Terrorism
and Human Rights, European Union Sub-Regional Hearing, Brussels, July
2007
[xx]click here to view the whole text of the joint declaration
[xxi]http://www.euro-islam.info/country-profiles/france/#H
[xxii]Human
Rights Watch Submission: Eminent Jurists Panel on Terrorism,
Counter-Terrorism and Human Rights- European Union Sub-regional
hearing, Brussels, July 2007
[xxiii]ibid
[xxiv]Christian
Walter, Submission to the Eminent Panel on Terrorism, Counter-Terrorism
and Human Rights, European Union Sub-Regional Hearing, Brussels, July
2007
[xxv]Germany:
Amnesty International submission to the UN Universal Periodic Review,
Fourth session of the UPR Working Group, February 2009
[xxvi]http://www.euro-islam.info/country-profiles/france/#H
[xxvii]Ibid
[xxviii]Human Rights Watch, World Report 2008
[xxix]http://www.migpolgroup.com/documents/4114.html
[xxx]Germany:
Amnesty International submission to the UN Universal Periodic Review,
Fourth session of the UPR Working Group, February 2009
[xxxi]http://www.edri.org/edrigram/number6.12/isp-france-block-sites
[xxxii]http://www.hrw.org/legacy/englishwr2k8/docs/2008/01/31/eu17678.htm
[xxxiii]http://www-polytic.lip6.fr/IMG/pdf/Marzouki-APDFranco07-en.pdf
[xxxiv]http://www.edri.org/edrigram/number6.4/germany-constitutional-searches
[xxxv]http://www.ambafrance-dk.org/IMG/pdf/livre_blanc_english.pdf
[xxxvi]http://www.euro-islam.info/country-profiles/france/
[xxxvii]Ibid
[xxxviii]Liz Fekete, 2004, Anti Muslim Racism and the European Security State.
[xxxix]http://www.euro-islam.info/country-profiles/germany/#J
Sarah Sherif Abdelaziz is an Anglo-Egyptian writer and researcher who holds a Master of Letters in Islamic Jerusalem Studies, with
distinction first class honors, from Almaktoum Institute for Arabic and
Islamic Studies in Dundee, University of Aberdeen, United Kingdom.
Abdelaziz also earned a Bachelor’s degree in Political Science from the
Faculty of Economics and Political Science English Section, Cairo
University. She can be reached via euro_muslims@iolteam.com.
Source: http://www.islamonline.net
