The Use and Abuse of Administrative Measures against FTFs in France26 Sep 2016
France is one of the countries where so-called ‘administrative measures’ are applied to address foreign terrorist fighters (FTFs) and respond to the terrorism threat they pose. This trend of seeking new legal avenues to respond to the phenomenon of FTFs can be observed in other countries as well, and was the topic of a High Level Panel organised by the International Centre for Counter-Terrorism – The Hague (ICCT) on 2 September 2016. This Perspective argues that, while there can be valid reasons to resort to such measures as part of counter-terrorism strategies, their use (and abuse) in France and elsewhere raises numerous concerns with regard to due process guarantees and human rights more generally.
The term ‘administrative measures’ – which is increasingly used with regards to FTFs but remains undefined at the international level – refers to measures of a protective nature, aimed at preventing or disrupting terrorism within the territory of a state. The key feature of administrative measures is that their use is decided upon and ordered by the executive (or with its close involvement), and is subject to limited judicial review.
In recent years, France has enacted a number of laws providing for such measures, including, since November 2014, the ability of the Minister of Interior to impose travel bans or entry bans to individuals who constitute a threat to public order and security, and, since June 2016, the possibility of imposing certain controls on returning FTFs. Moreover, as part of the ongoing state of emergency that was initially declared in November 2015, French executive authorities have been endowed with broad powers, whereby the Minister of Interior notably has the authority to place individuals under house arrest and to order the conduct of warrantless searches anywhere at any time. In practice, more than 3,500 warrantless searches, 500 house arrests, and 300 travel bans have been ordered.
One of the reasons France and other countries have turned to administrative measures is that these measures can be applied prior to the occurrence of a terrorist act in an attempt to prevent attacks and disrupt networks. Furthermore, administrative measures are seen as an alternative to criminal prosecution. Indeed, in some situations, administrative measures can constitute a sensible alternative to prosecution. For instance, to prevent the travel of potential FTFs, imposing a travel ban may arguably be a better solution than prosecuting someone for attempting to travel to Syria.
However, in other situations, administrative measures seem to be used to circumvent the procedural constraints of criminal trials, particularly evidentiary requirements. In France, administrative measures against FTFs have been decided on the basis of “white notes” (notes blanches), which are very succinct, unsigned, and undated documents drafted by French intelligence services that attest, without fully disclosing why, that an individual poses a threat to public order and security. At the ICCT High Level Panel on the use of administrative measures in the context of FTFs (2 September 2016), panellists agreed that one of the most pressing issues with regards to the use of administrative measures for counter-terrorism concerns the use of secret evidence, and, more generally, the need for due process guarantees in administrative procedures.
The conditions in which the state of emergency and other administrative measures have been applied in practice have received significant criticism from various human rights institutions for being excessive, disproportionate, and affecting freedom of movement and the right to private and family life (see for instance: CNCDH, Amnesty International, Human Rights Watch, OHCHR). Individuals under house arrest not only have their freedom of movement restricted by the obligation to remain within a limited area, but are also subject to strict reporting requirements, which can significantly affect private and family life. In one example, a single mother of three children had to report to a police station three times a day, seven days a week, and as a result could not properly care for her children. The Council of State, while refusing to invalidate the measure, recognised that the particular modalities of house arrests needed to be better individualised by taking account of the personal situation of the individuals they affect. As formulated by Amnesty International, individuals subject to administrative measures can have their life totally ‘upturned’. Other examples of the impact of house arrests include individuals losing their jobs, or being unable to pursue their studies. While a number of abuses have been documented, judicial review remains limited and constrained by the use of secret evidence, leaving affected individuals with few avenues to seek recourse.
In conclusion, it is essential for policy makers to give further consideration to issues of human rights in the application of administrative measures against FTFs, and to ensure that more safeguards are put in place to guarantee that individuals subject to administrative measures benefit from procedural guarantees commensurate with the actual impact on fundamental freedoms that administrative measures can have. In this respect, the Special Advocate procedure used in the United Kingdom to handle secret evidence in trials, whereby specially appointed lawyers have the opportunity to fully access all relevant evidence, is one example of how requirements of national security can be effectively balanced with those of due process.
This Perspective is based on a presentation that the author gave at the High Level Panel on the Use of Administrative Measures in the Context of Foreign Terrorist Fighters organised by ICCT on 2 September 2016.