Since the beginning of Israel’s retaliation following the terrorist attacks conducted by Hamas in October 2023, millions of people have descended in the streets across the world to condemn the disproportionate and unlawful character of this military campaign. Nonetheless, as this global movement unfolded, several countries have witnessed increasing political and police crackdowns on freedom of assembly and freedom of expression. In France, this has led to an unprecedented surge of legal actions against hundreds of individuals targeted under the charge of ‘apology of terrorism,’ with over 600 cases launched in the span of just a few months1. This wave of prosecutions has swept up activists, politicians, and ordinary citizens alike, as authorities aggressively clamped down on any statements that could be construed as sympathetic to terrorist acts. From political figures to outspoken activists, the breadth and speed of these actions reveal a growing trend where expressing opinions on contentious issues, particularly the Israeli-Palestinian conflict, is increasingly met with harsh legal consequences, disregarding France’s obligations under International and European Human Rights Law.
Historical and Legal Checks and Balances: the Delicate Balance between National Security and Freedom of Expression
The legal concept of ‘apology of terrorism’ in France finds its origins in the 1881 Freedom of the Press Act, which sought to balance the need for public order with the protection of free speech2. Initially, the offence was managed within a legal framework that was designed to safeguard civil liberties, and prosecutions were rare.
However, the legal landscape underwent a significant transformation in 2014 with the introduction of the Cazeneuve Law, named after then-Interior Minister Bernard Cazeneuve3. This legislation reclassified ‘apology of terrorism’ under Article 421-2-5 of the French Criminal Code, moving it from press law into ordinary criminal law4. This reclassification equated apology of terrorism offences to other crimes against the State, marking a shift toward a more punitive approach, which can entail imprisonment and hefty fines for public expressions5. This shift reflected a judicial doctrine that not only dismisses the lawfulness of different points of view in a democratic society but does so through a deliberate and restrictive interpretation that overlooks the fact that certain statements — albeit controversial and morally ambiguous — nonetheless remain legal and legitimate as part of public debate.
The consequences of this legislative shift were profound. The number of convictions for ‘apology of terrorism’ surged dramatically in the years following the enactment of the Cazeneuve Act. By 2015, French courts had issued 332 convictions, and this number continued to rise in subsequent years, reaching 495 in 2016, 74 of which involved online activities6. This sharp increase is particularly striking when contrasted with the mere 14 convictions recorded between 1994 and 2014, and reflects a broader trend in French counter-terrorism policy, where the State has increasingly prioritised security over civil liberties7.
In line with this shift, after her 2016 visit to the country, the UN Special Rapporteur on human rights and counter-terrorism expressed concerns about the expansive application of the law in France, noting that 85% of terrorism-related offences were related to apology of terrorism8. The Rapporteur warned that the broad and vague drafting of the law led to considerable legal uncertainty and posed a risk of abuse of discretionary power, notably underscoring that 20% of the 840 individuals charged with ‘apology of terrorism’ in 2016 were minors and suggesting that the law’s implementation may not only be far-reaching but also disproportionately harsh, particularly on vulnerable populations9.
France’s Treatment of the Israeli-Palestinian Conflict: Politicised Justice and Its Impact on Free Speech
More recently, the surge in legal actions related to ‘apology of terrorism’ was identified to be closely linked to the ongoing Israeli-Palestinian conflict. The conflict has long been a flashpoint in French society, provoking strong and often polarising reactions. Following the October 7, 2023, terrorist attack carried out by Hamas, French authorities have intensified their crackdown on public statements in favour of the Palestinian cause that could allegedly be interpreted as supporting or justifying acts of terrorism, with the Minister of Justice, Éric Dupond-Moretti, going as far as issuing a directive urging public prosecutors to pursue legal action against such statements10. This directive led to the initiation of 348 investigations between October 7, 2023, and January 30, 2024, with the National Centre for Combating Online Hate in Paris launching an additional 278 investigations11.
In this context, expressions of solidarity with the Palestinian people or criticism of Israel’s disproportionate retaliation strategy and crimes under international law have frequently been met with accusations of anti-Semitism or support for terrorism, leading to legal repercussions under the ‘apology of terrorism’ framework. In April, over the course of just one week, five individuals were either summoned by the police or condemned to penal sanctions concerning similar accusations. Among those targeted were Anasse Kazib, an activist from Révolution Permanente who was condemned to a fine of 1500€ for expressing solidarity with the Palestinian people, and Jean-Paul Delescaut, the general secretary of CGT Nord, who received a suspended one-year prison sentence for distributing leaflets in support of the Palestinian people against Israel’s indiscriminate offensives which the Lille Criminal Court deemed to be approving of the morality of the perpetrators of the October 7 attacks. Additionally, Rima Hassan, a candidate for the European elections, and Mathilde Panot, the leader of the La France Insoumise (LFI) group in the National Assembly, were both summoned for expressing support for the Palestinian cause amid the Israeli-Palestinian conflict.
The cases of Kazib, Delescaut, Hassan, and Panot, as well as those involving the hundreds of activists and advocates targeted since October, highlight the expanding reach of ‘apology of terrorism’ charges in France and spotlight the delicate — and often precarious — balance between national security and freedom of expression in France, with critics arguing that the current legal framework, with its broad and often vague definition of what constitutes an ‘apology of terrorism,’ poses a significant risk to freedom of expression, particularly in politically charged contexts. The potential for this law to be used as a tool to suppress dissent is especially concerning, as it can stifle legitimate political discourse and inhibit open debate on sensitive geopolitical issues. In April, over the course of just one week, five individuals were either summoned by the police or condemned to penal sanctions concerning similar accusations. Among those targeted were Anasse Kazib, an activist from Révolution Permanente who was condemned to a fine of 1500€ for expressing solidarity with the Palestinian people, and Jean-Paul Delescaut, the general secretary of CGT Nord, who received a suspended one-year prison sentence for distributing leaflets in support of the Palestinian people against Israel’s indiscriminate offensives which the Lille Criminal Court deemed to be approving of the morality of the perpetrators of the October 7 attacks12. Additionally, Rima Hassan, a candidate for the European elections, and Mathilde Panot, the leader of the La France Insoumise (LFI) group in the National Assembly, were both summoned for expressing support for the Palestinian cause amid the Israeli-Palestinian conflict13.
The cases of Kazib, Delescaut, Hassan, and Panot, as well as those involving the hundreds of activists and advocates targeted since October, highlight the expanding reach of ‘apology of terrorism’ charges in France and spotlight the delicate — and often precarious — balance between national security and freedom of expression in France, with critics arguing that the current legal framework, with its broad and often vague definition of what constitutes an ‘apology of terrorism,’ poses a significant risk to freedom of expression, particularly in politically charged contexts. The potential for this law to be used as a tool to suppress dissent is especially concerning, as it can stifle legitimate political discourse and inhibit open debate on sensitive geopolitical issues.
Protecting Free Speech through the Implementation of the Rouillan v. France Case
The legal struggles of Jean-Marc Rouillan, a former member of the terrorist group Action Directe, provide a vivid illustration of the challenges inherent in applying the law on ‘apology of terrorism.’ Rouillan’s case began in 2017 when he was convicted for comments made during a radio interview in which he referred to the perpetrators of the 2015 terrorist attacks in France as “courageous,” despite clearly denouncing their actions and ideology14. The French courts interpreted this description as a form of indirect support for terrorism, qualifying it as an ‘apology of terrorism’ under Article 421-2-5 of the Criminal Code15.
Rouillan’s case quickly became emblematic of the broader debate over the proportionality of penalties related to apology of terrorism, as the French courts sentenced him to 18 months in prison, with part of the sentence suspended, despite Rouillan’s argument that his punishment was disproportionate and infringed upon his right to free expression.
Rouillan ultimately took his case to the European Court of Human Rights (ECtHR), challenging the French courts’ interpretation and application of the law. In a significant ruling in 2022, the ECtHR sided with Rouillan, finding that the French authorities had not adequately balanced the need to protect public order with the requirement to safeguard freedom of expression16. The Court emphasised that even in the context of terrorism, the imposition of criminal penalties must be carefully calibrated to avoid unjustly stifling free speech17. The ruling highlighted the importance of proportionality and necessity, principles that are cornerstones of the European human rights framework.
However, the ECtHR’s ruling did not bring a clear resolution to Rouillan’s case. Despite the Court’s reasoning, the Toulouse Court of Appeal, upon reviewing the case, opted to reaffirm the original sentence, effectively challenging the ECtHR’s judgment and highlighting the ongoing tension between national judicial independence and international human rights obligations18. Such tension further elucidates the inherent complexities of the implementation process, underscoring that ensuring compliance remains a critical test for European legal systems.
Broader Implications: The Erosion of Human Rights and the Rule of Law
The reluctance of French authorities to fully implement the ECtHR’s judgment in the Rouillan case reflects broader implications on the protection of human rights in France. The binding nature of ECtHR rulings is a key feature of the European human rights system, and member States are expected to comply with these judgments to ensure survival of the essential protections enshrined in the European Convention on Human Rights, as well as the effective and systematic application of human rights standards across the region.
The delays in implementing or improper implementation of ECtHR judgments challenges not only the authority of the Court, but also the broader commitment to the rule of law, as highlighted by the European Commission19, and thus the Convention system as a whole. In the Rouillan case, the ECtHR emphasised that restrictions on free speech, particularly in sensitive areas such as the fight against terrorism, must be both necessary and proportionate. The French courts’ decision to uphold Rouillan’s sentence, despite the ECtHR’s judgment, suggests a troubling disregard for these principles designed to ensure that, even in the face of serious threats, democratic societies still live up to their foundational values
Established to provide an avenue for civil society to engage with the implementation of ECtHR judgments, Rule 9 represents a crucial instrument for advocating for the compliance of member States with the Court’s rulings and their international obligations.
In light of the above, and underscoring its commitment to advocating for the enforcement of international human rights obligations, Generation for Rights Over the World, on August 30, 2024, submitted a communication pursuant to Rule 9.2 of the Rules of the Committee of Ministers of the Council of Europe concerning the implementation of the Rouillan v. France group of cases. Having contended that the measures undertaken by France are insufficient to tackle the context in which the dispute emerged, GROW invites the Committee of Ministers to request the French Government to:
- Conduct a comprehensive review of cases initiated under the Dupond-Moretti Bulletin to ensure that the charges were proportionate and consistent with international human rights standards and present the Committee of Ministers with this analysis including comprehensive information regarding such charges and convictions, and the acts and statements that were targeted;
- Develop comprehensive and regular judicial training programs to ensure that members of the judiciary are fully apprised of their obligations under Article 10 of the European Convention on Human Rights, including the jurisprudence in the Rouillan case.
- Retract the Dupond-Moretti Bulletin, given its contribution to legal overreach and restrictions on free speech, in order to prevent the imposition of governmentally approved understandings of the current Israelo-Palestinian conflict onto the reasoning of the judicial system.
- Consider reforming the 2014 Cazeneuve Law to provide a more precise definition of what constitutes an apology for terrorism, ensuring it cannot be misused to suppress legitimate public discourse, by either reintegrating the offence into a legal framework that better safeguards freedom of expression, similar to the protections under the 1881 Freedom of the Press Act, or by providing further legal clarification to the definition of apology of terrorism, and training magistrates accordingly.
- Take steps to ensure the judicial authorities are guided by the Rabat Plan of Action on prohibiting advocacy of national, racial, or religious hatred in the case-by-case analysis of alleged apology of terrorism cases.
For a more detailed overview of the context, of the specificities of the Rouillan v. France case, and of GROW’s stance, please refer to:
↑1 | Ayad, Christophe. 2024. “Le Conflit Israël-Hamas S’invite Dans Les Tribunaux Français : De plus En plus de Procédures Pour ‘Apologie Du Terrorisme.’” Le Monde.fr. Le Monde. March 2, 2024. Available at: https://www.lemonde.fr/societe/article/2024/03/02/en-marge-du-conflit-hamas-israel-une-inflation-en-france-des-procedures-pour-apologie-du-terrorisme_6219642_3224.html. [Accessed 26 Aug. 2024]. See also, Godeberge, Celine, and Emmanuel Daoud. 2014. “La Loi Du 13 Novembre 2014 Constitue-t-Elle Une Atteinte À La Liberté D’expression ?” Dalloz-Actualite.fr. 2014. Available at: https://www.dalloz-actualite.fr/revue-de-presse/loi-du-13-novembre-2014-constitue-t-elle-une-atteinte-liberte-d-expression-20150128. [Accessed 26 Aug. 2024]. See also, Pamarat, David. 2023. “Détention Provisoire, Une Atteinte Disproportionnée À L’apologie Du Terrorisme ?” Dalloz-Actualite.fr. September 18, 2023. Available at: https://www.dalloz-actualite.fr/flash/detention-provisoire-une-atteinte-disproportionnee-l-apologie-du-terrorisme. [Accessed 26 Aug. 2024]. |
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↑2 | Loi Du 29 Juillet 1881 Sur La Liberté de La Presse. 1991. Available at: https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000006419708. See also, Loi N° 2014-1353 Du 13 Novembre 2014 Renforçant Les Dispositions Relatives À La Lutte Contre Le Terrorisme. 2014. Available at: https://www.legifrance.gouv.fr/loda/id/JORFTEXT000029754374. [Accessed 26 Aug. 2024]. |
↑3 | See, Article 421-2-5 – Code Pénal. 2014. LegiFrance. Available at: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000029755573. [Accessed 26 Aug. 2024]. |
↑4, ↑9, ↑15, ↑17 | Ibid. |
↑5 | Fantin, N., Marie, S. and Lefebvre, V. (2024). Rule 9.2. Communication concerning Rouillan v. France from Generation for Rights Over the World (GROW). growthinktank.org. [online] Oct. 2024. |
↑6 | Polloni, Camille. 2016. “Apologie Du Terrorisme : Les Condamnations de 2015.” Les Jours. December 21, 2016. Available at: https://lesjours.fr/obsessions/entreprise-terroriste/ep19-apologies-2015/. See also, Polloni, Camille. 2023. “Apologie Du Terrorisme : Une Infraction Qui a de Beaux Jours Devant Elle.” Mediapart. Mediapart. October 18, 2023. Available at: https://www.mediapart.fr/journal/france/181023/apologie-du-terrorisme-une-infraction-qui-de-beaux-jours-devant-elle.[Accessed 26 Aug. 2024]. |
↑7 | Assemblée Nationale. 2016. “Rapport d’Enquête Relative Aux Moyens Mis En Œuvre Par l’Etat Pour Lutter Contre Le Terrorisme Depuis Le 7 Janvier 2015.” Www.assemblee-Nationale.fr. July 5, 2016. Available at: https://www.assemblee-nationale.fr/14/rap-enq/r3922-t1.asp. [Accessed 26 Aug. 2024]. |
↑8 | Special United Nations Special Rapporteur on counter-terrorism and human rights. 2019. “Rapport de La Rapporteuse Spéciale Sur La Promotion et La Protection Des Droits de L’homme et Des Libertés Fondamentales Dans La Lutte Antiterroriste – A/HRC/40/52/Add.4.” United Nations General Assembly. Available at: https://documents.un.org/doc/undoc/gen/g19/134/00/pdf/g1913400.pdf. [Accessed 26 Aug. 2024]. |
↑10 | Circulaire Dupont-Moretti, 2023. Available at: Direction des affaires criminelles et des grâcesMinistère de la justicehttps://www.justice.gouv.fr › sites › default › files [Accessed 26 Aug. 2024]. |
↑11 | See, Barbarit, Simon. 2024. “Convocation de Mathilde Panot : Pourquoi Les Poursuites Pour ‘Apologie Du Terrorisme’ Sont En Hausse ?” Public Sénat. April 24, 2024. Available at: https://www.publicsenat.fr/actualites/politique/convocation-de-mathilde-panot-pourquoi-les-poursuites-pour-apologie-du-terrorisme-sont-en-hausse. [Accessed 26 Aug. 2024]. See also, Ayad, Christophe. 2024. “Le Conflit Israël-Hamas S’invite Dans Les Tribunaux Français : De plus En plus de Procédures Pour ‘Apologie Du Terrorisme.’” Le Monde.fr. Le Monde. March 2, 2024. Available at: https://www.lemonde.fr/societe/article/2024/03/02/en-marge-du-conflit-hamas-israel-une-inflation-en-france-des-procedures-pour-apologie-du-terrorisme_6219642_3224.html. [Accessed 26 Aug. 2024]. See also, Godeberge, Celine, and Emmanuel Daoud. 2014. “La Loi Du 13 Novembre 2014 Constitue-t-Elle Une Atteinte À La Liberté D’expression ?” Dalloz-Actualite.fr. 2014. Available at: https://www.dalloz-actualite.fr/revue-de-presse/loi-du-13-novembre-2014-constitue-t-elle-une-atteinte-liberte-d-expression-20150128. [Accessed 26 Aug. 2024]. See also, Pamarat, David. 2023. “Détention Provisoire, Une Atteinte Disproportionnée À L’apologie Du Terrorisme ?” Dalloz-Actualite.fr. September 18, 2023. Available at: https://www.dalloz-actualite.fr/flash/detention-provisoire-une-atteinte-disproportionnee-l-apologie-du-terrorisme. [Accessed 26 Aug. 2024]. |
↑12 | See, Cohn, Joshua. 2024. “‘Apologie Du Terrorisme’ : Des Prisonniers Politiques de 68 Au Délit D’opinion.” Révolution Permanente. Révolution Permanente. May 6, 2024. https://www.revolutionpermanente.fr/Apologie-du-terrorisme-des-prisonniers-politiques-de-68-au-delit-d-opinion. See also, LeMonde. 2024. “Prison Avec Sursis Requise Contre Un Responsable de La CGT À La Suite D’un Tract Sur L’attaque Du Hamas En Israël.” Le Monde.fr. Le Monde. March 29, 2024. Available at: https://www.lemonde.fr/societe/article/2024/03/29/prison-avec-sursis-requise-contre-un-responsable-cgt-apres-un-tract-sur-l-attaque-du-hamas-en-israel_6224744_3224.html. [Accessed 26 Aug. 2024]. |
↑13 | Liberation, and AFP. 2024. “Mathilde Panot et Rima Hassan Entendues Par La Police Pour ‘Apologie Du Terrorisme.’” Libération. April 30, 2024. Available at: https://www.liberation.fr/politique/mathilde-panot-et-rima-hassan-entendues-par-la-police-pour-apologie-du-terrorisme-20240430_YVHO42VMTJAPTFMF4QJEHATEOA/. [Accessed 26 Aug. 2024]. |
↑14 | International Commission of Jurists. “DRAFT Comparative Research on Counter-Terrorism Laws and Practices in Second-Tier Priority Countries.” 26 July 2019. Available at: https://www.icj.org/wp-content/uploads/2020/11/Second-tier-countries_comparative-research_7_2019.pdf [Accessed 26 Aug. 2024]. |
↑16 | European Court of Human Rights. Rouillan v. France. 23 June 2022, Available at: https://hudoc.exec.coe.int/?i=004-61392. [Accessed 26 Aug. 2024]. |
↑18 | Libération & AFP. 2023. “Jean-Marc Rouillan à Nouveau Condamné Pour Apologie Du Terrorisme.” Libération, Libération, 20 Dec. Available at: www.liberation.fr/societe/police-justice/jean-marc-rouillan-a-nouveau-condamne-pour-apologie-du-terrorisme-20231220_EOZ7AG5QSZHGZGLAWI4SM4PM7E/. [Accessed 30 Aug. 2024]. |
↑19 | See, European Implementation Network, and Democracy Reporting International. 2024. “Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law.” EINNetwork.com. European Implementation Network, Democracy Reporting International. https://www.einnetwork.org/justice-delayed-justice-denied. See also, European Commission. 2024. “2024 Rule of Law Report.” European Commission. 2024. https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/annual-rule-law-cycle/2024-rule-law-report_en |