For the past 10 days or so, there’s been a flutter of activity regarding France and the Islamic terrorist threat – in particular Al-Qaeda au Maghreb Islamique (AQMI). The French intelligence and counterterrorism services have been particularly wary, even nervous, regarding risks of a terrorist strike on French soil. According to Reuters, French authorities are currently investigating and attempting to prevent a supposed kamikaze attack on the transportation system by a suspected female terrorist. Jewish synagogues and other religious sites have been under increased surveillance by security forces, especially during Yom Kippour. Dalil Boubakeur, the rector of the Grand Mosque of Paris, perceived as a “moderate” by both his supporters and his detractors, is under police protection.
Last week, the Eiffel Tower and the metro station Saint-Michel, the same that was the object of a terrorist attack in July 1995 killing 8 and wounding over a hundred, were evacuated following an anonymous tip.
All this following an interview of Bernard Squarcini, the head of the French counterterrorist agency – the DCRI (Direction Centrale du Renseignement Intérieur) – in the Journal du Dimanche on the eve of 11 September, claiming that the terrorist threat against France has never been greater. Jean-Louis Bruguière, one of the most famous and mediatized former anti-terrorist magistrates, stated on France 24 that the level of threat was similar to that of 1995, with the difference that today AQMI exists, which was not the case 15 years ago. Needless to say, AQMI’s recent apparition in Algeria and expanding in the entire Sahel is not a positive factor for France’s security.
Talk about nervousness. And yet, on the Home Front, the French are taking all of this with a surprisingly British phlegm.
However, to make things worse, seven employees of the French company specialized in nuclear energy Areva and construction firm Vinci have been kidnapped from their homes in Niger last Wednesday, five of them being French, the two others being from Madagascar and Togo. AQMI is suspected of being behind the attack. The French government has reacted swiftly and firmly to the kidnappings, immediately arranging to deploy 80 troops in Niger along with several aircrafts, and set up a temporary base there to search and rescue the hostages.
Which begs the question: is France “at war” – in the American sense of the term – with terrorism?
It is not often that France uses openly military forces in a counter-terrorist operation, but there have been some changes in the recent months. Last July, after negotiations to free another French hostage – 78-year-old humanitarian Michel Germaneau – failed, France attempted with Mauritanian forces a military raid to free the hostage, which left six Islamic militants dead. But Germaneau was nowhere to be found. AQMI later claimed that Germaneau was killed in reprisals, although it is unclear whether he was still alive at the time of the raid.
Following this attempt, French Prime Minister François Fillon, in an interview on French radio station Europe 1, used unusual martial language to talk about France’s conflict with AQMI. He declared that France was “at war” with Al-Qaeda and that the fighting will “intensify” against the jihadist group in the Sahel.
What was even more unsettling about this declaration is that it came from François Fillon, not French President Nicolas Sarkozy. For those who are unfamiliar with French politics, Fillon is considered to be the reasonable, rational and moderate one, especially in contrast with Sarkozy’s more populist and sanguine approach to events. That Fillon would declare France “at war” with Al-Qaeda, when the Obama Administration has relinquished the use of the expression “War on Terror”, was more than surprising, and raises interesting legal issues.
Counter-terrorism legal policy options: the “War Model” versus the “Law Enforcement Model”
Since the September 11th attacks in the United States, two “models” or approaches to counter-terrorism have emerged in international law: the law enforcement or criminal law model, and the war model.
The law enforcement model, it can be argued, precedes by far the war model, and was the standard international approach to countering terrorism up until 2001. It involved perceiving acts of terrorism, no matter how horrible, as criminal acts to be prosecuted and judged as such. Terrorism is, in that respect, a crime – a terrifying one – but no more, no less. The tools behind this approach relied on a series of treaties covering different aspects of terrorism that bound its State Parties to cooperate with each other in the prosecution of such crimes under the legal adage aut dedere aut judicare: “prosecute or extradite”. Each State was responsible for arresting suspected terrorists found on their territory, and were left with the option to – as the adage indicates – either prosecute the terrorists for their alleged crimes, or extradite them to a State that had jurisdiction and wished to prosecute them. The purpose of such an approach is to let no State party to such a convention become a harbor State for terrorists to find refuge in.
The war model has emerged as such following 9/11, under U.S. President George W. Bush’s Administration and in reaction to the strikes in New York and Washington, D.C. Faced with the immensity of the attack, the Bush Administration adopted a series of policies and rhetoric – the phrase “War on Terror” being perhaps the most emblematic – that perceived terrorism no longer as a crime to be prosecuted, but as an act of war which justified recourse to the “inherent right to self-defense” as guaranteed by article 51 of the UN Charter. Terrorists were no longer “criminals” but “enemy combatants” to be fought on “battlefields” and eventually imprisoned with the minimum of rights. The National Security Strategy of 2002 (PDF file) also foreshadowed the development, under the “War on Terror” banner, of a preemptive strike doctrine that led to the invasion and occupation of Iraq. It is a model that attempted to bring effective and rapid answers to the scourge of terrorism, but that went deadly wrong in its application and in the abuse of power it allowed for by the Executive Branch of the U.S. Government, both at home, and abroad. Even though it has been somewhat watered down by the Obama Administration, the War Model is still currently used in the form of targeted killings carried out by U.S. intelligence and military services in Afghanistan, Pakistan, Yemen and elsewhere. Harold Koh, the current Legal Adviser to the Department of State, made it clear in his speech in March 2010 before the American Society for International Law that the Obama Administration still considered itself “at war” in its fight against Al-Qaeda.
Although the Law Enforcement Model dominates European approach to counter-terrorism, whereas the War Model arguably dominates the American approach, it must be clearly stated that neither model is exclusive, and that the United States does have recourse to law enforcement mechanism in its fight against terrorism – as Andrew Lebovich’s work at the New America Foundation regularly shows – and the Europeans do use military force to counter terrorism, as their presence in Afghanistan and the recent French measures have shown.
France’s “traditional” approach to countering terrorism: France is probably the Western country with the longest experience in confronting Islamist de-territorialized terrorism, as we know it today. It’s first experience with such form of radical Islam dates back to the 1980s, and a series of laws were passed since then to create a thorough and comprehensive law enforcement system to counter terrorism. Coupled with a tradition of strong centralized intelligence services, and specialized anti-terrorist magistrates with broad powers that would without a doubt cause sleepless nights for the American Civil Liberties Union, France has one of the most respected, encompassing and effective counterterrorism legal regime in the world.
But despite this strong-armed approach and years of experience, France has always been wary of using overtly military force against terrorism, and in particular has opposed the Bush Administration’s approach in its “War on Terror”, especially regarding its Preemptive Doctrine. This led to a violent diplomatic clash between the United States and France in 2002 and 2003.
Counter-terrorism through the Prism of the Algerian War: France’s approach to counterterrorism, and its use of military force in that struggle, cannot be understood if the scars left by its experience in Algeria from 1954 to 1962 are not taken into account. Although the conflict between France and Algerian insurgents was different in its colonial context, France learned many of its lessons on countering insurgents using terrorist methods with military force during that conflict. Military occupation, humiliations, torture, accidental killings… Every mistake America made in its “War on Terror” in Afghanistan and Iraq, France did it first in Algeria 40-50 years. On that matter (and as an aside), I strongly recommend watching the film “The Battle of Algiers” for those who are interested. It was reportedly screened at the Pentagon in 2003.
The limits of the War Model – from a French perspective: Beyond the stigmas of the Algerian War, France’s approach to counter-terrorism and its reticence to employ the military option on large-scale operations is also fundamentally pragmatic. First of all, engaging in “war” against a non-State armed group that employs terrorist methods (i.e. “terrorist groups”) tends to provide terrorists with a certain dose of legitimacy and publicity they certainly do not deserve. By treating them for what they are – criminals who cause irreparable harm to their victims and societies – we do not grant them the “dignity” of a combatant for a cause.
Secondly, and even more pragmatic, France as a middle power does not have the means to engage in a full-fledged military conflict with terrorist groups and States that harbor them, even if such a strategy was proven to be efficient – whereas to my knowledge, it has rather mixed results.
The limits of the War Model – from an international legal perspective: the original sin of the War Model from an international legal perspective is the fact that it is found on the assumption that terrorist attacks, such as the 9/11 attacks, were an act of war, and justified a recourse to self-defense to engage into war with terrorist groups.
As far as international law is concerned, there can be no war between a State and a non-State armed group such as a terrorist group like Al-Qaeda. War, in international law, can only be carried out between States. The same can be said of an “international armed conflict”. Non-international armed conflict are a special branch in that regard, and are far less regulated than international armed conflicts for the simple reason that States has no interest in internationalizing rules regulating these conflicts that they consider only concern themselves. In any case, the War on Terror between the United States and Al-Qaeda can certainly not be qualified as a non-international armed conflict.
As a quick aside, I’ll just point out that this raises many issues and generates fascinating debates about the role of international law in apprehending such conflicts, and especially once these non-international armed conflict become internationalized whether because a third exterior party joins in, or because the actual conflict spills over a State’s border: a common occurrence, especially in Africa.
The second problem with the War Model is that it can cause some serious disturbances to the standing international legal order: once a State – such as the United States – claim that it can use military means to hunt down terrorist groups on another State’s territory without that State’s consent, or worse, with the preemptive doctrine claim that it can strike and invade another State if it considers that that State could eventually pose a threat in the future, the whole international legal order could flounder. It is important to remember that international law rests on a reciprocal system of rules. Once a State claims a right, it cannot stop other States from benefiting from that right as well. And we could observe many States invading their neighbors in the name of “the fight against terrorism.”
Lastly, terrorism, no matter how much we combat it, will never cease to exist. It is not an ideology; it is not a group that can be vanquished. It is a method currently used by non-State armed groups, previously used by States, and who knows what will come next. But by declaring a War on Terror, and using a set of wartime policies to achieve its ends, a State enters in what is effectively a never-ending war, with all the risks that that entails.
French action against AQMI in West Africa – How it fits in international legal discourse: considering the obvious limits of the War Model and France’s strongly anchored traditional approach to counterterrorism – at least out in the open – these new developments by France will be interesting to follow. How far is France ready to go in its military operations in West Africa, and are they engaging in a new Gallic version of the “War on Terror” over there? Time will tell, but my money is on a resounding “No.”
It takes a lot more than the deployment of a few dozens of soldiers – whether Special Forces or otherwise – for a State to adopt the “War Model” as its new counterterrorism approach. It is not also my purpose to argue that a State must only allow its law enforcement agencies to deal with terrorism and refuse categorically to engage in any military actions against terrorist groups that threaten its security. It’s not that simple. A lot of it is a question of policy, and I am no policy expert, nor do I pretend to be. Although I have my doubts about the effectiveness policy-wise of military responses to acts of terrorism, I have a hard time analyzing to what extent these actions may be necessary or superfluous. As matter of fact, I’m perfectly open to the idea that military actions may be necessary in certain circumstances: after all, in this case, France cannot – nor can Niger or any other West African States – send the police after AQMI, considering the nature of that group and the threat it poses to national security. It seems evident that a military response in these kinds of cases is the only one that is adequate.
Whatever is the future of France’s intervention in West Africa, it is important that their use of force complies with existing international law. Without going into the details, I would like to recall that these rules are there for a reason: they control and canalize the use of force in a way that tries to ensure that that force is not used abusively, and grants it a certain dose of legitimacy in the eyes of international public opinion, and for the local governments and citizens as well.
And as the American experience have showed us, when fighting extremists in a foreign land, you need all the legitimacy you can get.
— Xavier Rauscher, follow me on Twitter @xrauscher_.
I’m afraid I “published” an earlier version of this post – still in its draft form – a few minutes earlier by accident. My apologies for the confusion created, and for those who still have the draft version in their RSS readers or mailboxes, please ignore it.