Using and abusing the state of emergency in France and Tunisia

On 12 November 2017, the Tunisian government renewed the country's state of emergency until 12 February 2018. Since the 2011 revolution, exceptional arrangements have meant an almost permanent state of emergency; for the past two years it has been in force with barely any interruption.

In France, after two years of intermittent implementation, the country has "exited" its exceptional state of emergency, but has ensured its continued existence by enshrining a new law, that of 3 October 2017, intended to "re-inforce internal security and the fight against terrorism".

The years 2015 and 2016 were anni horribiles for France and Tunisia. In March 2015, 22 people were killed outside the Bardo Museum in Tunis. In June, 39 were killed on a beach in Sousse. In July, the Tunisian president Béji Caïd Essebsi announced the renewal of the state of emergency, saying: "If attacks like those at Sousse or the Bardo happen again, the country will collapse."

In November, a suicide attack in the centre of Tunis claimed the lives of 12 members of the presidential guard. In March 2016, attacks on military bases and a police post in Ben Guerdane by men claiming adherence to the Islamic State group resulted in 268 deaths.

Tunisia's tense security situation has been worsened by the porosity of its frontiers: to the west, Algeria battles against Al-Qaeda in the Islamic Maghreb (AQIM). To the south, the great expanse of the Sahara is the domain of traffickers and jihadist groups. Perhaps the biggest source of instability is to the east, where Tunisia shares a 500-kilometre frontier with Libya, under constant threat of civil war.

Large numbers of Tunisians have been recruited to terrorist organisations; Tunisia has provided more recruits to IS than any other country. 

Two exceptional legal frameworks

In France, between the Charlie Hebdo and Hypercacher attacks in January 2015 and the Nice attack in July 2016, 238 people lost their lives in terrorist attacks. The state responded by reactivating the law of 3 April 1955, an exceptional regime first put in place in Algeria following the anti-colonial uprisings, later applied during the 1980s in New Caledonia and in November 2005 after rioting in French suburbs. 

The Tunisian state of emergency was proclaimed on the basis of the decree of 26 January 1978, enacted by President Habib Bourguiba after what became known as "black Thursday", during a time of general strike and widespread repression. According to its text, "a state of emergency can be declared over all or part of the territory of the republic in the case of imminent peril resulting from a serious attack on public order, or of an event of such gravity it can be designated a public calamity".

The decree grants exceptional powers to minsters, the Interior Ministry and law-enforcement agencies. It also allows for the suspension of the freedom of the press and of the right to meeting, opinion, expression and movement, as well as of the right to a private life and the right to strike.

Four key measures of the state of emergency entered general law: the protection zone, the closure of religious establishments, house arrests and administrative searches

Arbitrary stigmatisation

France operated for two years on the basis of the 1955 law, reinforced by the law of 20 November 2015, before it enshrined the state of emergency in the constitution through the law of 3 October 2017. The four key measures of the state of emergency entered general law: the protection zone, the closure of religious establishments, house arrests and administrative searches.

These measures can be applied to a person if, in the opinion of the Interior Ministry, "there exist serious reasons to think their behaviour could constitute a menace to public order". They include the obligation to report to the police, generally three times a day, and to stay at home between 8pm and 6am, under threat of further controls and with non-compliance punishable by conviction.

The courts are enabled to authorise and control measures that are restrictive to public liberty, but the state of emergency also accords extraordinary powers to the administrative authorities, allowing them to bypass the courts. Appeals are only possible after the measure has been applied. According to Interior Ministry figures, between 14 November 2015 and 1 November 2017, the state of emergency resulted in the establishment of 75 protection zones, the closure of 19 religious establishments, 4,469 administrative search warrants and 754 house arrests.

Only 23 judicial enquiries have been launched about terrorism. 

These constraints are designed to be applied to a potentially infinite number of situations, following subjective criteria and open to free interpretation on the part of the authorities of what constitutes a "disturbance" or a "threat to public order and security". This represents a modification of the 1955 law, in which it was only possible to institute the measures if the person concerned was engaged in "an activity" which "could be proved to be dangerous".

A report published on 26 January 2016 by the trade union for French magistrates lamented the counter-productive effects of the state of emergency: "The arbitrary stigmatisation of the hundreds of people who have been searched or placed under house arrest - and the resulting disruption to their personal, family and professional lives - with the only motive being their belonging, real or supposed, to an Islamic movement, or their origin, can only lead to a profound feeling of injustice and stigmatisation.

"This feeling roots itself not only in the people concerned, but also in those around them and […] those who consider themselves members of the stigmatised community. It is glaringly apparent that such arbitrary and uncontrolled repression constitutes a powerful factor in the radicalisation of the disenfranchised young people who are the main target of criminal organisations […] Far from contributing to the fight against terrorist criminality, the state of emergency serves on the contrary to significantly reduce its efficacy."

In a study of the state of emergency, the Centre for Research and Study on Fundamental Rights (CREDOF) analysed all the judicial decisions made since its introduction: "The profile of the people targeted by these exceptional measures comes as no surprise: Muslim men, suspected by the administration of being part of a radical Islamist movement."

The study finds it "arresting to note the references to Salafism or radicalisation used to justify a measure, without any details being given by the administration about the specific Salafist belief or practice in question."

The government: guarantor of and threat to rights and liberties

During a state of emergency, the government represents both a guarantor of and a threat to the rights and liberties of citizens.

For a report published in February 2017 about violations of human rights under Tunisia's state of emergency, Amnesty International (AI) interviewed 73 victims in 2015 and 2016.

Twenty-three said they had been subjected to torture or other maltreatment. The report also revealed the arrest of "thousands of people" and searches made "often without judicial mandate". At least 138 people had been held under house arrest. In addition, the provision had been used for ends other than the fight against terrorism, such as to restrict the activities of social movements or to arrest civil society activists.

Tunisia has been faced with contradictory demands... resulting in the tensions that have led to the state of emergency

The Tunisian General Labour Union (UGTT), which had previously supported the government, strongly criticised it, precipitating public unrest by demanding reform of the Finance Law. In early January 2018, demonstrators protesting the law and price increases again took to the streets across the country. According to Human Rights Watch, more than 9,000 arrests took place, of which 773 were between 8 and 11 January alone.

Tunisia has been faced with contradictory demands: its attempts to satisfy international donors such as the World Bank and the IMF by assuring the country's security, while cementing its democratic gains since the fall of the dictatorship, resulting in the tensions that have led to the state of emergency.

According to the International Crisis Group, "since 2016, the visible degradation of the economic base has increased the possibility of uncontrollable unrest". Previous states of emergency were used to repress the general strike announced by the UGTT in 1983, the "riots of pain" in 1984 and the revolution in 2011. "A sinister reminder of the Ben Ali regime", comments Amnesty International. 

President Emmanuel Macron, visiting Tunisia on 31 January 2018, lent his support to the Tunisian authorities, saying "these arrests were made as part of the rule of law", adding "the same association has sometimes denounced things that have happened in France. I don't think our country is an enemy of human rights".

French NGOs have in fact vehemently criticised the state of emergency - used during the COP21 climate conference and at demonstrations against the Labour Law and the law of 3 October 2017. Many of the guarantees laid down in the European Convention on Human Rights have been flouted, including the right to respect of family and private life, the right to liberty, the right to security, the right to freedom of expression, and the rights to freedom of association and movement.

The state of emergency has also enabled an avoidance of the social, domestic and foreign policy questions raised by the attacks. The emergency measures have not just fulfilled a security mission, but have also allowed the French and Tunisian states to undermine the rights of their citizens. Since 11 September 2001, the amorphous concept of "terrorism" has become the paradigm used to analyse the world and all its crises. The enemy remaining ever elusive, by virtue of being a concept rather than a human entity, the opportunity has been created for both foreign and domestic wars.

The state of emergency, as it has been implemented in France and Tunisia, bears the unmistakable imprint of the "war on terror".

Hassina Mechaï is a journalist and co-author, with Sihem Zine, of The (permanent) state of emergency (February 2018, Meltingbook Editions).

Follow her on Twitter: @HassinaMechai

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.