The Criminalisation of Armed Jihad under French Law: Guilt by Association in the Age of Enemy Criminal Law

in European Journal of Crime, Criminal Law and Criminal Justice

This article discusses the offence of participation in a terrorist group or conspiracy under French law, as applied by the French criminal justice system to prosecute and convict individuals who travel or attempt to travel abroad to participate in armed jihad. In light of a critical assessment of decisions rendered by French courts in cases involving jihadi fighters, it proposes to reflect on the orientation of the criminal law in matters relating to the participation of European nationals in armed jihad in foreign territory. Expressing concern over the excessive reach of substantive criminal-law provisions and of related prosecutorial policies, the article argues that the current legal framework and newly proposed legislation no longer serve the legitimate objective of protecting public order and safety from a tangible threat, and that the criminal law is at risk of becoming a tool of ideological warfare against designated enemies of the state.

Abstract

This article discusses the offence of participation in a terrorist group or conspiracy under French law, as applied by the French criminal justice system to prosecute and convict individuals who travel or attempt to travel abroad to participate in armed jihad. In light of a critical assessment of decisions rendered by French courts in cases involving jihadi fighters, it proposes to reflect on the orientation of the criminal law in matters relating to the participation of European nationals in armed jihad in foreign territory. Expressing concern over the excessive reach of substantive criminal-law provisions and of related prosecutorial policies, the article argues that the current legal framework and newly proposed legislation no longer serve the legitimate objective of protecting public order and safety from a tangible threat, and that the criminal law is at risk of becoming a tool of ideological warfare against designated enemies of the state.

* Henri Decœur is a lawyer specialising in international criminal litigation, in matters relating to human rights, organised crime, and corruption. He holds a PhD from the University of Cambridge, an llm from McGill University, and a ba in comparative law from the University Paris Ouest Nanterre. He is qualified to practice law in France. He has worked for international criminal courts and tribunals, and also has experience in domestic criminal litigation, mostly in organised crime, terrorism, and corruption cases.

A senior French prosecutor arguing her case against defendants accused of taking part in a terrorist conspiracy asserted that ‘Salafism is a criminal ideology’.1 This blanket statement, highly disputable from a theological-doctrinal point of view,2 is emblematic of the approach adopted by the French criminal justice system to handle cases of Islamist terrorism. Confronted with a deadly upsurge in terrorist attacks,3 France has dramatically intensified its prosecutorial policy targeting individuals suspected of having joined or attempted to join the ranks of Islamic State (‘isil’) and of other terrorist groups in Syria and Iraq to participate in armed jihad4 (hereinafter referred to as ‘returning’ and ‘prospective’ jihadi fighters, respectively). For the purposes of our argument, ‘armed jihad’ is defined as the use of armed violence to defend the principles of Islam and the rights of Muslims. This intentionally laconic and broad definition is meant to accommodate conflicting doctrinal views about the proper interpretation and scope of the concept of jihad5 – a debate in which the author is not qualified to take part. Armed jihad involves principally participation in armed conflict, and does not necessarily extend to the commission of acts considered as acts of terrorism under international law. It should be stressed at the outset that the principal and most representative schools of Islamic law unanimously concur in rejecting acts of terrorism as a legitimate means of waging armed jihad.6

Nevertheless, as this article proposes to show, adherence to certain religious beliefs and readiness to participate in armed jihad often constitutes sufficient evidence for French courts to render a conviction on the basis of the offence of participation in a terrorist group or conspiracy. It is argued that the failure of French courts to draw a conceptual distinction between armed jihad and terrorism prevents them from addressing important questions of law and fact that may bear on the outcome of a case. Among Western European states, France has had the highest number of jihadi fighters involved in the Syrian conflict,7 and its caseload in matters related to Islamist terrorism is substantial.8 Yet the debate in French courts and academic literature regarding the status and criminal responsibility of jihadi fighters surprisingly remains in a stage of infancy compared to other European jurisdictions. This article aims at drawing attention to the current shortcomings of French judicial responses to the phenomenon of participation in armed jihad in foreign territory.

The article will first describe the relevant substantive legal framework. It will then undertake a critical analysis of recent judicial decisions rendered by French courts in cases involving returning or prospective jihadi fighters, shedding light on a number of shortcomings inherent in current judicial practices. Drawing conclusions from the findings of this analysis and taking into consideration newly proposed anti-terrorism criminal-law measures, the article finally discusses a perceived shift in criminalisation policy – a shift away from the legitimate criminalisation of preparatory acts threatening public order and safety, towards the establishment of mechanisms of guilt by association rooted in a form of ‘enemy criminal law’ (Feindstrafrecht).

1 Legal Framework

French law and judicial practices relevant to the criminalisation of armed jihad can best be understood in light of France’s obligations under relevant international legal instruments pertaining to foreign terrorist fighters.

1.1 International Legal Framework

1.1.1 eu Council Framework Decision on Combating Terrorism and Directive on Combating Terrorism

Since the adoption in 2002 of the Council Framework Decision on combating terrorism (‘the Framework Decision’), member states of the European Union are required to establish as a criminal offence within their domestic law the following acts, when committed intentionally:

participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.9

Criminal responsibility under the offence of participation in a terrorist group as defined in the Framework Decision, as under most conspiracy or similar inchoate offences, does not require proof of direct intent to commit or to participate in the preparation of a particular criminal act. In other words, it is not required that the perpetrator share the common purpose of the group. It is sufficient to prove that he wilfully participated in the activities of a group, with knowledge of the fact that the group is a terrorist group engaging in criminal activities, and awareness that his actions would result in contributing to criminal activities of the group.10 It is therefore necessary to establish a cognitive link between the defendant’s intentional participation in the group and the expected outcome, which necessarily has to relate to the preparation or commission of terrorist activities, or at least more generally to the preparation of criminal activities.11 At this stage, the argument can be made that criminal responsibility under the offence of participation in a terrorist group, as defined in the Framework Decision, is not incurred when the defendant takes part in certain activities of the group that are not criminal in nature and when he does not know for sure that his participation may contribute to furthering the group’s criminal purpose. To put it differently, criminal responsibility is not incurred for any kind of participation in a terrorist group: in the defendant’s mind, his participation must somehow be connected to the preparation or commission of acts of terrorism or of other criminal acts. Implicit in the Framework Decision’s definition of the cognitive element is a form of indirect intent (dolus eventualis): if the offender knows that his participation may contribute to the terrorist activities of the group, then surely he may be considered to have willingly taken that risk and to have intended to play a part in the commission or preparation of acts of terrorism. While these remarks may seem tautological, they are necessary to understand the problem inherent in the approach of French courts in cases involving jihadi fighters.

eu member states are required to establish extra-territorial jurisdiction over terrorism offences on the basis of the active personality principle, that is, when the offender is a national or a resident of the forum state.12 This shows that jurisdiction over jihadi fighters may be asserted even in the absence of a particular threat or risk of harm manifesting itself in the territory of the forum state.

Finally, it should be stressed that the Framework Decision does not apply to ‘[a]ctions by armed forces during periods of armed conflict, which are governed by international humanitarian law’.13 The extent to which this provision might apply to non-state armed groups is controversial. This issue will be discussed at a later stage.14

The eu legal framework concerning foreign terrorist fighters was expanded in March 2017 with the adoption of the Directive on combating terrorism (‘the Directive’),15 which replaces the Framework Decision as from the date of its entry into force. The Directive reiterates the obligation for member states to punish the offence of participation in a terrorist group, defined in the same terms as in the Framework Decision.16 The Directive also requires member states to criminalise a range of new terrorism offences, including traveling abroad for the purpose of participating in the activities of a terrorist group ‘with knowledge of the fact that such participation will contribute to the criminal activities of such a group’,17 and receiving training ‘for the purpose of committing, or contributing to the commission’ of terrorism offences.18 All of these offences have in common a cognitive element requiring proof of the offender’s knowledge of contributing to the criminal activities of a terrorist group. Like the Framework Decision, the Directive also contains a clause excluding activities governed by the law of armed conflict.19

1.1.2 Security Council Resolution 2178 (2014)

In 2014, the increasing number of foreign fighters active in conflict zones where terrorist groups operate, particularly in Syria,20 led the United Nations Security Council first to ‘call upon’, then to require un member states to take steps to stem the flow of foreign fighters from their territory and bring them to justice.21 Pursuant to Resolution 2178 (2014), un member states are required inter alia to

ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:

(a)their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.22

The Preamble of the resolution further indicates that states must include within the scope of criminalised conduct acts ‘in connection with armed conflict’,23 thus departing from the prevailing practice of excluding acts governed by international humanitarian law from the scope of application of international anti-terrorism instruments.24 Moreover, Resolution 2178 does not define the concept of ‘terrorist acts’, which has given rise to sustained criticism in the literature out of concern over potential excess by states in implementing the resolution.25 As Krähenmann points out, ‘[t]he resolution significantly blurs the lines between terrorism and armed conflicts’,26 requiring states to criminalise conduct that may be lawful under the law of armed conflict. The assumption evident in the text of Resolution 2178 is that taking part in hostilities within the ranks of a terrorist group is in most cases considered tantamount to engaging in terrorism.27 Krähenmann further notes that ‘the decisive criterion seems to be which groups foreign fighters are joining or intending to join: joining or attempting to join groups that are labelled as ‘terrorist’ becomes an offence in itself.’28

That being said, and while the constitutive elements of the offence as defined in Resolution 2178 encompass a very broad range of conduct, the Security Council must be given credit for setting a strict threshold of responsibility by requiring what appears to be specific intent to take part in the preparation or commission of terrorist acts. Unfortunately, under French criminal law there is no such requirement.

1.2 The Offence of Participation in a Terrorist Group or Conspiracy under French Law

The Framework Decision and Resolution 2178 have had little impact on French law,29 which already criminalised a range of terrorism offences and offered adequate legal bases for the prosecution of French nationals or residents who travel or attempt to travel abroad for the purpose of participating in terrorist activities.

The overwhelming majority of cases involving a plurality of offenders30 are prosecuted on the basis of the offence of participation in a terrorist group or conspiracy (‘participation à un groupement ou à une entente’), introduced in French criminal law in 1996.31 Article 421-2-1 of the French penal code provides:

An act of terrorism shall also be constituted by participating in a group or conspiracy established with a view to the preparation, characterised by one or several overt acts, of any of the acts of terrorism defined in the preceding articles.32

The applicable sentence is a maximum of 10 years of imprisonment in regular cases,33 and a maximum of 30 years of imprisonment if the offence that constitutes the object of the conspiracy is a serious crime (felony) against the person.34 Two persons are enough to constitute a ‘group’ or ‘conspiracy’.35 Moreover, while the statute requires ‘participation’ in a terrorist group, responsibility is incurred for mere ‘membership’ in the group, as inferred from the facts of the case.36 Like regular conspiracy offences, the offence of participation in a terrorist group or conspiracy is distinct from the underlying criminal acts that constitute the object of the conspiracy. It is therefore not required to prove that the offender took part in the preparation of a particular terrorist act.37 The corollary of the actus reus is that proof of intent to commit a particular terrorist act, or even terrorist acts in general, is not required. The purpose seriously to disturb public order through intimidation or terror, which under French law is the hallmark of terrorism offences,38 must be pursued only by the terrorist group or conspiracy as a whole, and not by individual offenders.39 As a result, it is sufficient to prove that the offender willingly participated in the group, with knowledge of the group’s terrorist activities.40 The underlying assumption is that the offender has knowingly and wilfully taken the risk to be associated with a terrorist organisation.41 Moreover, the Court of Cassation has ruled that the offender’s ‘concrete and precise knowledge’ of the contemplated offence does not have to be established, including in the case of an aggravated conspiracy42 – even though it is the nature and seriousness of the offence contemplated by the conspirators that entail aggravated sentencing. This interpretation, supported by objectivist scholars,43 seems hardly compatible with the principle of culpability.

Unlike the definition provided for in the Framework Decision and the Directive, under French law the offender’s knowledge must be established with respect only to the terrorist character of the group’s activities, and not with respect to the offender’s expected contribution to the group’s terrorist activities. This subtle difference has significant consequences in practice.44

In theory, attempt to commit the offence of participation in a terrorist group or conspiracy is criminalised when the offence that constitutes the object of the conspiracy is a felony. In that case, the offence of participation in a terrorist group or conspiracy itself becomes a felony,45 and attempt to commit a felony is criminalised under French law.46 Commentators have noted with concern that criminalising attempt to participate in a terrorist group or conspiracy comes dangerously close to criminalising mere psychological processes instead of tangible preparatory acts.47 What is more, modes of responsibility may combine to criminalise, for example, aiding and abetting attempt to commit a terrorism offence.48 However, in practice concerns over the excessive reach of ancillary modes of responsibility prove to be misplaced, as the offence of participation in a terrorist group or conspiracy, as interpreted and applied by French judges and prosecutors, is in itself sufficiently broad to encompass most endeavours to be involved in a terrorist group or conspiracy, without having to resort to ancillary modes of responsibility.

The offence of participation in a terrorist group or conspiracy goes further than required by eu law and Resolution 2178 – perhaps too far. While states remain free to go beyond the minimum requirements of an eu directive or framework decision or of a Security Council resolution, in the case of the definition of a criminal offence a distinction must be made between the material elements (actus reus) and the subjective element (mens rea) of the offence: the former constitute the minimal scope of prohibited conduct, which states may decide to expand when implementing these instruments into their domestic law, whereas the latter arguably constitutes a minimal protective threshold of responsibility that states must uphold in order to safeguard the rights of potential offenders. Although the offence of participation in a terrorist group or conspiracy existed under French law long before the adoption of the Framework Decision and of the Directive, to the extent that it is used to fulfil the objective pursued by these instruments it should be interpreted and applied in accordance with the standards set out in them,49 so as to require proof that the perpetrator knew that his participation in a terrorist group would contribute to the criminal activities of the group.

The reach of the offence of participation in a terrorist group or conspiracy goes beyond the borders of France, as jurisdiction may be extended over acts committed abroad when the offender is a French national or resident.50

The flexibility offered by the offence of participation in a terrorist group or conspiracy has made it the instrument of choice for French prosecutors and investigating judges to prosecute and charge individuals participating or having attempted to participate in armed jihad abroad.

2 Critical Analysis of Judicial Enforcement in Cases of Participation in Armed Jihad

The argument made in this section relies on an analysis of the prosecutorial policy adopted by the French prosecution service (‘parquet’) and of judicial decisions rendered by trial judges in cases involving returning or prospective jihadi fighters.51

2.1 Prosecutorial Policy in Cases of Participation in Armed Jihad

The French Ministry of Justice has issued guidelines to the attention of prosecutors and judges for the purpose of the prosecution and trial of jihadi fighters.52

It should be stressed out of hand that jihadi fighters are not prosecuted on the basis of the objective principle of territorial jurisdiction, or even on the basis of the protective principle. Rather, the guidelines provide that jurisdiction may be asserted extraterritorially on the basis of the active personality principle.53 This goes to show that, as a matter of law, charges brought against jihadi fighters do not presuppose any threat of harm occurring in French territory or targeting French interests or nationals abroad. The offence of participation in a terrorist group or conspiracy is used to prosecute members of foreign terrorist organisations that, to the author’s knowledge, have never committed or planned acts of terrorism in or against France.54 Therefore, the exercise of extraterritorial jurisdiction to prosecute suspected offenders cannot be said to serve the purpose of protecting French public order and safety. The possibility of exercising extraterritorial jurisdiction over terrorism offences in the absence of a threat for domestic public order or for France’s interests or nationals abroad seems incompatible with a systematic interpretation of the law, as terrorism offences are listed in the French penal code as ‘offences against the nation, the state and public peace’.55 In Germany, while jurisdiction over terrorism offences committed abroad may also be asserted on the basis of the active personality principle,56 domestic courts have imposed limitations where the offender’s conduct does not pose any threat to the German public order.57 It is argued that such limitations should also apply in France.

The guidelines further indicate how the constitutive elements of the offence of participation in a terrorist group or conspiracy are to be applied for the purpose of the prosecution and trial of jihadi fighters:

concerning Syrian networks, charges can be brought on the basis of article 421-2-1, provided that the accused manifested his adhesion to the cause and to the actions carried out in furtherance of that cause, and knowingly enlisted in the ranks of terrorist groups operating in Syria and Iraq with the intent to provide efficient assistance for the pursuit of the goals pursued by these groups.58

This interpretation does not explicitly indicate that the ‘cause’, ‘goals’, or ‘actions’ pursued or carried out by the terrorist group must be of a terrorist or even criminal character. Rather, it seems to imply that any ‘cause’, ‘actions’ or ‘goals’ pursued or carried out by a terrorist group are necessarily terrorist or otherwise criminal. This assumption transpires in the next paragraph of the guidelines, which provides:

Going to Syria therefore only constitutes an act of terrorism if the pursued goal is to carry out armed jihad, a notion that necessarily covers all or part of the offences listed under article 421-1 of the criminal code.59

In other words, it is simply assumed without further consideration that intent to carry out armed jihad necessarily equals intent to participate in a terrorist group. This assumption, which, as will be discussed below, is far from being self-evident, is a common thread that runs through many, if not all decisions rendered by French courts in cases involving jihadi fighters.

2.2 ‘Jihad’ as a Linguistic and Evidentiary Shortcut to Proving Terrorism in Judicial Decisions

This confusion between armed jihad and terrorism transpires in the language used in trial judgments. While trial judgments do not define what is to be understood by the term ‘jihad’, it seems to correspond to the definition commonly found in dictionaries.60 In one case, when characterising the group that the defendants were accused of having attempted to join, reference is made in turn to an ‘Islamist combatant organisation’, a ‘jihadist organisation’, and an ‘Islamist military organisation’.61 In another case, evidence of knowledge of the terrorist character of the group was inferred from ‘the overtly jihadist character’ of documentary evidence found in possession of the defendant.62 Likewise, intent to participate in a terrorist group is inferred notably from the defendants’ ‘jihadist discourse’ and ‘beliefs’,63 ‘jihadist convictions’,64 or even ‘jihadist leanings’.65 More generally, detrimental inferences are often drawn from the defendants’ mere ‘interest for the cause of armed jihad’.66 The courts engage in lengthy discussions of evidence of the defendants’ religious beliefs and ‘radicalisation’, without explaining clearly how this evidence relates to the constitutive elements of the offence.67

These considerations are irrelevant to establishing criminal responsibility for the offence of participation in a terrorist group or conspiracy. While adherence to certain beliefs may in some circumstances constitute a useful indicator of the defendant’s state of mind, establishing the defendant’s religious beliefs is not necessary to prove intent to participate in a terrorist group. The domestic courts of other European states, dealing with similar evidence, have stressed that adherence to certain beliefs, an ideology, or a cause, is not criminal.68 The German Federal Court of Justice has even held that a call to participate in jihad was in itself not conclusive of participation in a terrorist organisation, as the term ‘jihad’, which commonly refers to a range of legitimate religious endeavours, could not be understood restrictively to refer to the agenda of certain terrorist organisations.69 The assumption that armed jihad necessarily equals terrorism is indeed misguided, not only on the theological or doctrinal plane, but also in the eyes of the law. First, as will be argued shortly,70 participation in hostilities is not necessarily unlawful for members of organised armed groups fighting in an international armed conflict. Secondly, even if taking part in hostilities were constitutive of an unlawful and criminal act, it would not ipso facto constitute an act of terrorism. As the German Federal Court of Justice pointed out, not every act of violence carried out by members of a non-state armed group against government forces in the context of an armed conflict amounts to terrorism.71 It may very well constitute treason under the domestic law of the state in which the conflict takes place, or perhaps, depending on the methods of warfare used, a war crime. Yet under no acceptable twist of reason can it be claimed that intent to take part in an armed conflict, even as an unprivileged combatant, is tantamount to intent to participate in a terrorist group. The stance of French courts on this issue comes dangerously close to giving credit to the view that all rebel groups fighting against a government are terrorists.

This approach also disregards the psychology and motives driving many foreign jihadi fighters. In many of the earliest cases, what mattered to them was the possibility of taking part in the armed struggle against the Syrian government alongside fellow Muslim fighters. They often knew little about the intricacies of the Syrian conflict, and about the actual situation in the field of battle. They easily fell prey to recruiters acting on behalf of terrorist groups, and ended up within the ranks of isil or of the Jabhat Al-Nusra, not necessarily because they had planned to join those groups specifically and embraced the full spectrum of their ideology, but because those groups provided them with the opportunity to fulfil their personal aspirations.72

The language used in French trial judgments to describe the conduct and personality of jihadi fighters is sadly symptomatic of an obsession for the fantasised figure of the ‘Islamist radical’. Compulsive references to the concept of ‘jihad’ in the decisions rendered by French courts tend to mask the weakness of the assessment of the evidence necessary to characterise the constitutive elements of the offence of participation in a terrorist group or conspiracy. That is not to say that the evidence of a particular case, if analysed rigorously, would perhaps not warrant a conviction under applicable substantive criminal-law provisions. It is argued, however, that in many cases French courts fail to engage with the evidence and the law with the rigour and clarity expected from trial judges, which in certain cases leads to errors of law tainting the judgments.

2.3 Failure to Consider Relevant Rules of the Law of Armed Conflict

The first and most critical error in the decisions rendered by French courts in cases of armed jihad is the failure to answer the crucial question of whether participation in armed jihad necessarily amounts to the commission or preparation of terrorist acts, or, for that matter, whether it is at all unlawful.

As a matter of international law, in the context of an international armed conflict it is a right for members of the armed forces of a party to the conflict to take part in hostilities.73 As a result, combatants may not be prosecuted merely for participating in hostilities. Combatant immunity, however, cannot be claimed by all participants in any armed conflict. To determine the status of individuals fighting alongside isil or other rebel groups in the Syrian conflict, it is necessary to answer a number of complex questions of law and fact. These include whether the conflict in Syria is non-international or international, and in particular whether the direct or indirect involvement of foreign states may internationalise the conflict;74 whether France is a party to the Syrian conflict as a whole, or to a distinct armed conflict against organised armed groups responsible for the terrorist attacks committed in French territory; whether an international conflict may coexist with a non-international armed conflict depending on the identity of the parties involved; whether isil can be considered as a state or state-like party to the conflict; and whether isil troops meet the requirements to be considered ‘armed forces’, and in particular whether they are subject to an internal disciplinary system able to enforce compliance with the laws of war.75

It is beyond the scope of this article to address these highly complex issues, which have nourished a particularly rich debate in the literature and in both international and domestic case-law since the launch of the ‘war on terror’ by the United States after the terrorist attacks of September 11th, 2001.76 Nevertheless, a few cursory comments are appropriate. First, it should be stressed that many of these questions have not received a definite or unanimous response. A number of scholars have argued convincingly for granting combatant immunity to members of all organised armed groups taking part in hostilities irrespective of the nature of the conflict, provided that they comply with the laws of war.77

Secondly and more specifically on this latter issue, it is conceded that the literature is almost unanimous in denying combatant status to terrorist fighters on account of the poor record of terrorist groups in terms of compliance with the laws of war.78 Proponents of this view clearly have a point, but from the particular perspective of the criminal law it should be nuanced. While under international humanitarian law the individual conduct of a person taking part in hostilities is irrelevant to determining combatant privilege,79 it seems at odds with the fundamental principle of culpability that the individual criminal responsibility of a jihadi fighter within a particular group could depend entirely on an assessment of the conduct of other members of the group in question during the conflict.80

The understandable inclination towards condemning terrorist acts and serious violations of international humanitarian law committed by isil and other terrorist groups should not automatically lead to denying defendants the right to an assessment of their situation and of the merits of the charges brought against them. Belligerents falling into the hands of a party to an international armed conflict are presumed to be protected by combatant immunity until their status is determined by a competent tribunal.81 It is argued that domestic courts ought to take the argument seriously and assess, on a case-by-case basis, whether the conditions are fulfilled for a particular defendant to be entitled to combatant immunity. Moreover, as the author has argued elsewhere, when individual criminal responsibility depends on the determination of controversial questions of law and fact such as the nature of an armed conflict and the applicability of particular rules of international humanitarian law, defendants should be entitled, where possible, to a plea of mistake of legal element.82 Accordingly, it is argued that the courts should consider in each particular case whether a defendant had a reasonable belief that he had the right to take part in the Syrian armed conflict as a combatant.

The issues of combatant immunity and of the applicability of anti-terrorism offences to acts carried out in the context of armed conflict have been discussed thoroughly by the domestic courts of other European states confronted to the phenomenon of jihadi fighters, such as the Netherlands,83 and the United Kingdom.84 In certain states such as Canada and New Zealand, the statutory definition of terrorism offences excludes altogether acts committed in the context of an armed conflict and in conformity with the laws of war.85 In France, however, those important issues are plainly ignored. In one case in which the defence argued that participation in armed jihad was not in itself unlawful pursuant to the law of armed conflict, the court failed to address the argument in the judgment and did not even mention that it had been raised by the defence.86 In another case concerning minors, the tribunal similarly failed to respond to the defendant’s argument regarding the protection of child soldiers in armed conflict.87 The only case in which, to the author’s knowledge, the issue of combatant immunity was touched upon by French domestic courts, concerns the Afghan conflict. The defendant in this case argued that his alleged participation in the conflict against coalition forces in 2009 could not be characterised as participation in a terrorist group or conspiracy. The Paris Court of Appeals rejected the argument, on the ground that the Taliban were considered a terrorist group by the un Security Council and that there was no armed conflict in Afghanistan at the time.88 The Court of Cassation upheld the verdict, maintaining without a shred of explanation that the defendant was not entitled to the protection afforded by the Geneva Conventions.89 The same line of reasoning is followed by the prosecution service in cases relating to the Syrian conflict. This approach, however, stands in blatant contradiction to the position of the French government, which considers itself engaged in an armed conflict against terrorist groups in Syria and other countries.90 Those issues are crucial and ought to be considered seriously by the French judiciary.

2.4 Failure to Characterise the Terrorist Object of the Conspiracy in Cases Involving Prospective Jihadi Fighters

The second error of law found in the decisions rendered by French courts in cases of armed jihad occurs in cases involving prospective jihadi fighters who were prosecuted before they could join the ranks of a terrorist group. Charges are regularly brought against individuals who had made plans to travel to a territory controlled by a terrorist group with the intent of joining the group, and who had taken steps to give effect to their project.91 This applies even in the absence of evidence of direct or indirect contact between the offenders and a member of a terrorist group operating within the territory of their chosen destination.92

In such cases, it is clear that the offenders did not have the opportunity to make any form of contribution to the activities of a terrorist group. Yet instead of being charged for attempt to participate in a terrorist group or conspiracy, which in theory would be possible in the most serious cases,93 charges are brought on the basis of straightforward participation in a terrorist group or conspiracy. The underlying assumption is that the ‘group’ or ‘conspiracy’ is constituted not by a terrorist organisation operating in Syria, but by the defendants themselves, who agreed to carry out a common project. Pursuant to Article 4-2-1 of the French penal code, the group or conspiracy must be ‘established with a view to the preparation, characterised by one or several overt acts, of acts of terrorism’. In this particular scenario, the object of the conspiracy overlaps with the intent of its members. It is therefore necessary to prove that the conspirators agreed to prepare acts of terrorism. The offence of participation in a terrorist group or conspiracy, at the time when it was enacted, was indeed presented as a mere variation of the regular offence of criminal conspiracy (‘association de malfaiteurs’).94 However, instead of seeking evidence of terrorist intent on the part of the defendant, French courts are content to rely on evidence of intent to take part in armed jihad.95 As argued above, the assumption that armed jihad and terrorism are necessarily the same thing is plainly incorrect.

2.5 Failure to Establish the Terrorist Character of the Group

Another error committed by French courts in terrorism cases relates to the characterisation of the terrorist group. In some cases, domestic courts do not engage in any meaningful analysis of the group’s activities or agenda with a view to establishing the terrorist character of the group. The Court of Cassation seems to be satisfied that this requirement is fulfilled when the group in question is ‘listed as a terrorist organisation’.96 This overly formal approach has been criticised in the literature for failing to engage with the evidence and to discuss a key constitutive element of the offence.97 The listing of a particular entity as a terrorist organisation by the United Nations Security Council ‘entails a political assessment and value judgments’.98 It does not in itself constitute suitable evidence for the purpose of characterising the constitutive elements of a criminal offence, especially considering that the definition of terrorism under French domestic law may not correspond entirely to the definition used by the Security Council.

In some cases, concrete elements characterising the terrorist character of the group are not addressed by French domestic courts, and it is simply taken for granted that the group is a terrorist group. For instance, in a case where some of the defendants were charged for having joined a vaguely identified ‘Taliban group’ in Afghanistan and Waziristan, with very little evidence of the group’s activities or agenda, the court of first instance appears to have simply assumed that the group in question was a terrorist group,99 a point that would have deserved closer analysis. While this approach is less questionable in the case of organisations such as isil or the Jabhat Fatah al-Sham (formerly known as the Jabhat Al-Nusra), it is problematic in the case of less prominent groups that have neither been listed as a terrorist group by the un Security Council nor claimed responsibility for terrorist acts. Cases concerning individuals suspected of having attempted to join the Jaysh Muhammad in Bilad al-Sham, an independent armed group essentially composed of foreign fighters, are currently under investigation, and it is hoped that both investigating and trial judges will provide a rigorous assessment of the group’s alleged terrorist character. On a positive note, in a case involving an independent combat unit (‘katiba’) formerly affiliated to Al-Nusra, when determining the terrorist character of the group both the court of first instance and the court of appeals did highlight evidence that some of its members were willing to commit specific acts of terrorism.100

2.6 Failure to Establish the Defendant’s Awareness of Contributing to Acts of Terrorism

A further unsatisfactory development of the law relates to the determination of the cognitive element of the offence of participation in a terrorist group or conspiracy. Under French law, the offender’s knowledge must be established only with respect to the terrorist character of the group’s activities, and not with respect to the offender’s expected contribution to the group’s terrorist activities. In other words, trial judges do not have to seek evidence of any cognitive connection, in the defendant’s mind, between his participation in the group, and the impact that his participation might have on the group’s capacity or readiness to commit or prepare acts of terrorism. As argued above, in that particular respect French law may be incompatible with eu law.101 This problem is not just a theoretical one. It has severe consequences for defendants standing trial under charges of participation in a terrorist group or conspiracy.

In certain cases, defendants are convicted for having participated in the activities of a terrorist group even in the absence of any evidence that their participation had any connection to the group’s criminal activities. For instance, in several cases defendants were found guilty in spite of the court’s finding that they had not taken part in military operations or military training.102 In one case, the court even found that a defendant, who had spent about ten days in isil-controlled territory, had not been assigned any significant tasks, and that he remained mostly inactive during his short stay within the ranks of the organisation.103 In this latter case, it may be questioned whether the requirement that the offender ‘participate’ in the group was fulfilled at all. In any event, while it is not required that the offender’s participation be itself criminal or otherwise unlawful, as far as the subjective element is concerned and in light of its definition under eu law, there should be at least proof of the offender’s awareness that his participation contributes to the terrorist activities of the group. Where the evidence on the record does not allow the court to determine the nature of the defendant’s participation, it is difficult to understand how the court is able to find evidence of the defendant’s knowledge that his participation contributes to the terrorist activities of the group. It seems that the courts, relying on experience gained from similar cases, often reverse the burden of proof by presuming that defendants joining the ranks of isil take part in the group’s criminal activities and do so knowingly.

In some cases, the cognitive element is not discussed and seems to be implicitly inferred from the defendant’s intent to take part in armed jihad.104 When discussed at all, it is commonly inferred from a wide variety of evidence, such as evidence of the defendant’s knowledge of the ‘geopolitical situation in Syria’,105 the fact that information about jihad was available in the press,106 or possession of videos showing executions.107 In one case, the defendant’s knowledge of the terrorist activities of isil was inferred from the fact that terrorist attacks had already been committed in France (a reference to the murder of Charlie Hebdo journalists in January 2015).108 Some of these inferences are particularly problematic. First, videos of executions are evidence of war crimes, not necessarily of acts of terrorism. Secondly, while isil is prompt to claim responsibility for terrorist attacks, it never did so regarding the attack on Charlie Hebdo.109 Attributing responsibility for the attack to isil, and consequently inferring the defendant’s knowledge on that basis alone, is therefore questionable.

2.7 Guilt by Association

The above analysis of trial judgments rendered by French courts in cases involving returning or prospective jihadi fighters reveals an underlying pattern of guilt by association. The mere fact that the defendant associated or took steps to associate with an organisation advocating participation in armed jihad, is considered sufficient evidence to enter a conviction for participation in a terrorist group or conspiracy. This is most evident in cases where the defendant swore allegiance to the group, which is considered sufficient evidence of the defendant’s wilful participation in the terrorist activities of the group, even where he did not contribute in any meaningful way to the group’s activities.110

Mere adherence to certain religious beliefs or a group’s dogma may not be formally criminalised as such,111 but they are taken into consideration to the defendants’ detriment. Most tellingly, ‘involvement in a [jihadist] cause’, or a ‘commitment grounded in radical religious and political beliefs’ are considered aggravating factors for the purpose of sentencing.112 It is clear that the French criminal justice system, by implementing a policy that punishes individuals who adhere to a cause considered by the state to be criminal and who take action to defend their creed, has embraced a form of ‘enemy criminal law’ (Feindstrafrecht).

3 The Dangers of Embracing the ‘Criminal Law of the Enemy’

Jihadi fighters have been designated as enemies of Western European states. In the words of former British Prime Minister David Cameron: ‘You have declared your allegiance. You are an enemy of the uk and you should expect to be treated as such.’113 Former French Prime Minister Manuel Valls declared that France would ‘take exceptional measures to hit this enemy and destroy it’.114 This rhetoric is giving birth to worrying evolutions of the criminal law.

3.1 Overview of Recent Developments

Newly proposed criminal-law measures against jihadi fighters in France include a toughening of prosecutorial policy against offenders joining or attempting to join isil after the 2015 terrorist attacks, to be charged systematically on the basis of an aggravated conspiracy – which implies that the object of the conspiracy is a particularly serious crime.115 This approach is worrying given that French courts require neither proof of intent to participate in the commission or preparation of a particular terrorist act, nor even knowledge of the nature and seriousness of the offence contemplated by the group or conspiracy.116 It would therefore dramatically augment the range of applicable sentences while not altering the burden of proof resting on the prosecution.

In December 2015 the French Senate proposed the creation of a new offence, labelled as follows:

An act of terrorism shall also be constituted by residing intentionally abroad in an area where terrorist groups operate, with the purpose of establishing relations with one or several of such groups, without legitimate motive.117

This offence was designed with a view to allowing prosecution without having to prove any form of participation in a terrorist group, or even criminal intent.118 The proposal was eventually abandoned during the debates in parliament. Such an offence would clearly fail the test of criminalisation theory,119 be it on account of the absence of any tangible threat of harm to a legally protected interest, or because of a gross disproportionality between the seriousness of the criminalised conduct and the infringement in the rights of potential offenders.

It has also been suggested that French jihadi fighters should be prosecuted on the basis of treason offences.120 This suggestion was rejected by the Ministry of Justice, on the grounds, first, that treason offences were not designed to punish association with a non-state armed group, and secondly, that the constitutive elements of treason offences would be more difficult to prove than those of the offence of participation in a terrorist group or conspiracy.121 Nonetheless, prosecuting jihadi fighters on the basis of treason offences would seem more in line with the rhetoric used to refer to jihadi fighters, and it would fit well with the mechanisms of guilt by association employed by the French criminal justice system in cases of participation in armed jihad. If the underlying political rationale for prosecuting and convicting jihadi fighters is to punish them for having embraced a cause that betrays the state and the principles on which it is built, then treason offences may provide a more coherent legal basis than the offence of participation in a terrorist group or conspiracy.

Finally, in an effort to neutralise potential prospective jihadi fighters, a controversial new law makes it punishable to access on a regular basis websites glorifying acts of terrorism, when the offender ‘manifests his adherence to the ideology expressed on such websites’.122 The fact that the holding of certain beliefs or ideas and expression thereof are now criminalised as a constitutive element of a terrorism offence should certainly be a cause for concern.

3.2 Concluding Remarks

In the wake of the ‘war on terror’, the developments analysed in this article are telling of a dramatic shift from an ‘act-based criminal law’ to an ‘actor-based criminal law’,123 typical of a form of ‘enemy criminal law’ (Feindstrafrecht), whereby individuals are punished not on account of the harm they have actually caused, but because of the threat that they represent by virtue of their actual or perceived belonging to a group designated as an enemy of the state.124 This shift in the criminal law is rooted in a political strategy of social control, focusing on risks emanating from collective structures rather than on individual conduct.125 Yet it is not the object of the criminal law to punish individuals on the basis of their mere association with a cause or an ideology, regardless of how disturbing or alien such ideology might appear to be. The criminal law ought to sanction harmful actions and omissions, committed with a guilty state of mind. In case of an established threat for public order and safety, regular terrorism offences under French law, including the offence of participation in a terrorist group or conspiracy, may adequately and effectively be used to prosecute and punish those responsible, without having to develop overly extensive interpretations of the law or to create new offences.

The rise of enemy criminal law is neither necessary nor desirable to combat the threat of terrorism. While it is a political prerogative of the state to designate certain groups of people as enemies,126 this prerogative must be exercised within the confines of human rights law and of general principles of law. As citizens of democratic states we should ask ourselves whether we are prepared to accept that the criminal law should be the appropriate vehicle for the government to dictate which beliefs are acceptable and which causes are righteous, and which are not. In the absence of a tangible threat for domestic public order and safety, it does not fall within the acceptable purposes of the criminal law to be used as a tool of ideological warfare to suppress the fundamental freedom of any individual to pursue his or her ideals. That is not to say that nothing should be done to address the issue of jihadi fighters. But the criminal law’s vocation to be triggered as a means of last resort (ultima ratio) commands to have recourse to less intrusive means to endeavour to discourage young men and women from engaging in armed jihad in foreign territory. Non-coercive preventive measures should be combined with committed efforts to understand the root causes of this phenomenon and to question current models of social, cultural, and religious integration in Western societies. As isil is losing ground in Iraq and Syria and many jihadi fighters are taken prisoner or defect to return to their home country, European criminal justice systems will be put to the test.

Research for this article was supported by a grant from the Max Planck Institute for Foreign and International Criminal Law. An earlier draft of this article was presented at a seminar at the Institute on October 28th, 2016.

The author would like to thank David Apelbaum, Dr Benjamin Vogel and Dr Noam Zamir for their helpful comments. The views expressed in this article, as well as potential errors, are solely those of the author.

Heard by the author in court in 2016.

Salafism is a branch of Sunni Islam whose believers strive to emulate ‘the pious predecessors’ (al-salaf al-ṣāliḥ, often equated with the first three generations of Muslims) as closely and in as many spheres of life as possible. The majority of Salafi Muslims categorically reject any association with those who perpetrate acts of terrorism in the name of Islam (Joas Wagemakers, ‘Salafism’, in Oxford Research Encyclopedia of Religion, online).

Since January 2015, France has been the target of at least nine attacks linked to Islamist terrorism, for a total of 239 dead.

The number of cases relating to Islamist terrorism under investigation by the French criminal justice authorities surged from 26 in 2013 to 324 in September 2016 (‘François Molins annonce un « durcissement considérable » de la politique pénale en matière de terrorisme’, Le Monde, 2 September 2016).

For an overview of different interpretations of the concept of jihad, see O. Bakircioglu, ‘A Socio-Legal Analysis of the Concept of Jihad’, 59 The International and Comparative Law Quarterly (2010) 413, pp. 421–433; S. Sardar Ali & J. Rehman, ‘The Concept of Jihad in Islamic International Law’, 10 Journal of Conflict & Security Law (2005) 321, pp. 327–337.

For an analysis of relevant rules and principles of Islamic law, see M. Tahir-ul-Qadri, Fatwa on Terrorism and Suicide Bombings (London: Minhaj-ul-Quran, 2011).

In December 2014, 1,200 French nationals or residents were involved in the Syrian conflict (International Centre for the Study of Radicalisation and Political Violence, ‘Foreign fighter total in Syria/Iraq now exceeds 20,000; surpasses Afghanistan conflict in the 1980s’, 26 January 2015, online at: http://icsr.info/2015/01/foreign-fighter-total-syriairaq-now-exceeds-20000-surpasses-afghanistan-conflict-1980s/).

In September 2016, 324 cases related to Islamist terrorism were under investigation in France, and 280 individuals had been charged with terrorism offences (‘Le procureur de Paris François Molins : « Le risque d’attentat est renforcé »’, Le Monde, 2 September 2016).

Council Framework Decision 2002/475/jha on combating terrorism, 13 June 2002, oj l 164, 22.6.2002, p. 3, as amended by Council Framework Decision 2008/919/jha on combating terrorism, 28 November 2008, oj l 330, 9.12.2008, p. 21, Article 2(2)(b).

See E.J. Husabø & I. Bruce, Fighting Terrorism through Multilevel Criminal Legislation: Security Council Resolution 1373, the eu Framework Decision on Combating Terrorism and their Implementation in Nordic, Dutch and German Criminal Law (Leiden: Martinus Nijhoff, 2009), p. 213.

See S. Peers, ‘eu Responses to Terrorism’, 52 International and Comparative Law Quarterly (2003) 227, p. 237 (pointing out that knowledge does not necessarily have to relate to the terrorist character of the group’s activities, but simply and more generally to the criminal nature of the group’s activities).

Framework Decision on combating terrorism, Article 9(1)(c).

Ibid., Preamble, 11th recital.

See Section 2.3. Note that the European Court of Justice recently missed an opportunity to clarify the issue. In a request for a preliminary ruling concerning the inclusion of the Liberation Tigers of Tamil Eelam (‘ltte’)on the list of terrorist organisations for the purposes of asset freezing, the Court was asked whether certain actions by armed forces in the context of an armed conflict may constitute terrorism offences within the meaning of the Framework Decision, and in the affirmative, whether such actions may, by analogy, be considered to constitute ‘terrorist acts’ for the purposes of ­including an entity on the sanctions list. The Court answered the latter question in the affirmative, but did not address the former. Drawing a teleological distinction between the Framework Decision and eu acts imposing sanctions against individuals associated with terrorist entities, the Court took the view that the provisions of the Framework Decision were ‘irrelevant for the purposes of interpreting the concept of ‘terrorist acts’ as referred to in [eu acts ordering the blacklisting of certain entities]’. The Court also avoided addressing the question of whether the ltte’s activities could be considered to constitute ‘actions by armed forces during periods of armed conflict […] governed by international humanitarian law’ within the meaning of the Framework Decision (A and others v. Minister van Buitenlandse Zaken, Case no. C-158/14, 14 March 2017, paras 76–98).

Directive 2017/541 on combating terrorism, 15 March 2017, oj l 88, 31.3.2017, p. 6.

Ibid., Article 4(b).

Ibid., Article 9.

Ibid., Article 8.

Ibid., Preamble, 37th recital.

In December 2014, it was estimated that the number of foreign fighters in Syria exceeded 20,000, of which nearly a fifth were residents or nationals of Western European countries (icsr, supra note 7). According to the estimates of the United States Department of State, over 40,000 foreign fighters could have been operating in Syria in 2016, coming from over 100 countries (J. Siberell, us Department of State Acting Coordinator for Counterterrorism, ‘Country Reports on Terrorism 2015’ (Press Briefing, 2 June 2016, online)).

Security Council Resolution 2170 (2014), 15 August 2014, un Doc. S/res/2170 (2014), para. 8; Security Council Resolution 2178 (2014), 24 September 2014, un Doc. S/res/2178 (2014), para. 6.

Resolution 2178, para. 6.

Ibid., Preamble, 8th recital.

See International Convention against the Taking of Hostages, 17 December 1979, entered into force on 3 June 1983, 1316 unts 205, Article 12; International Convention for the Suppression of Terrorist Bombings, 15 December 1997, entered into force on 23 May 2001, 2149 unts 256, Article 19(2); International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005, entered into force on 7 July 2007, 2445 unts 89, Article 4(2); International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, entered into force on 10 April 2002, 2178 unts 197, Article 21.

See e.g. M. Scheinin, ‘Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters‘, (23 September 2014), online at: https://www.justsecurity.org/15407/post-911-panic-security-council-resolution-foreign-terrorist-fighters-scheinin/; M. Milanovic, ‘un Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters‘, ejil: Talk! (24 September 2014), online at: http://www.ejiltalk.org/un-security-council-adopts-resolution-2178-on-foreign-terrorist-fighters/; S. Krähenmann, ‘Foreign Fighters under International Law’, Academy Briefing no. 7 (Geneva Academy of International Humanitarian Law and Human Rights, October 2014).

Krähenmann, supra note 25, p. 35.

S. Krähenmann, ‘The Obligations under International Law of the Foreign Fighter’s State of Nationality or Habitual Residence, State of Transit and State of Destination’, in A. de Guttry, F. Capone & C. Paulussen, eds., Foreign Fighters under International Law and Beyond (The Hague: Asser, 2016) 229, p. 240; M. Scheinin, ‘The Council of Europe’s Draft Protocol on Foreign Terrorist Fighters is Fundamentally Flawed’, 18 March 2015, online at: https://www.justsecurity.org/21207/council-europe-draft-protocol-foreign-terrorist-fighters-fundamentally-flawed/.

Krähenmann, supra note 27, pp. 238–239.

See H. Labayle, ‘Les infractions terroristes en droit pénal français : Quel impact des décisions-cadres de 2002 et 2008 ?’, in F. Galli & A. Weyembergh, eds., eu Counter-Terrorism Offences: What Impact on National Legislation and Case-Law? (Brussels: Éditions de l’Université de Bruxelles, 2012) 49.

Offenders acting on their own can be charged under Article 421-2-6 of the French penal code, which criminalises the preparation of terrorist acts ‘in relation to an individual enterprise’. This offence is rarely used, as its constitutive elements set a standard of criminal responsibility much stricter than that required by the offence of participation in a terrorist group or conspiracy.

Law no. 96-647 of 22 July 1996, jorf no. 170 (23 July 1996), p. 11104, Article 3.

Author’s translation. The original reads as follows: ‘Constitue également un acte de terrorisme le fait de participer à un groupement formé ou à une entente établie en vue de la préparation, caractérisée par un ou plusieurs faits matériels, d’un des actes de terrorisme mentionnés aux articles précédents.

French Penal Code, Article 421-5.

Ibid., Article 421-6, 1°. The sentence was enhanced from 20 to 30 years of imprisonment after the terrorist attack in Nice (Law no. 2016-987 of 22 July 2016, jorf no. 0169 (22 July 2016), Article 13).

Cass. crim., 3 June 2004, no. 03-83.334. The Framework Decision and the Directive, however, require ‘more than two persons’ (Articles 2(1) and 2(3), respectively).

See Cass. crim., 17 October 2001, no. 01-81.453.

Cass. crim., 12 July 2016, no. 16-82.692.

French Penal Code, Article 421-1.

See, mutatis mutandis, M.É. Cartier, ‘Le terrorisme dans le nouveau code pénal français’, Revue de science criminelle et de droit pénal comparé (1995) 225 (discussing terrorism offences in general before the adoption of the Law no. 96-647 of 22 July 1996 establishing the offence of participation in a terrorist group or conspiracy).

See J. Alix, ‘Réprimer la participation au terrorisme’, Revue de science criminelle et de droit pénal comparé (2014) 849. See also the amendment proposal of J. Dray, presented to the National Assembly during the debates for the adoption of the relevant bill: Compte-rendu des débats, Xème législature, 3ème sess. (1995–1996), 20 December 1995, 2ème séance, jo déb., p. 36 (proposing that the definition of the offence include the word ‘knowingly’).

J. Alix, Terrorisme et droit pénal :  Étude critique des incriminations terroristes (Paris: Dalloz, 2010), p. 307; M. Massé, ‘La criminalité terroriste’, Revue de science criminelle et de droit pénal comparé (2012) 89, para. 13.

Cass. crim., 7 October 2016, no. 16-84.597.

See e.g. Yves Mayaud, ‘Le crime terroriste de participation à une association de malfaiteurs : une aggravation révélée dans sa juste portée’, aj pénal (2016) 526.

See Section 2.6.

A felony (‘crime’) under French law is an offence for which the applicable sentence is at least 10 years of imprisonment (French Penal Code, Article 131-1).

French Penal Code, Article 121-4, 2°.

See Alix, supra note 40, and the authors cited therein.

See e.g. Cass. crim., 6 March 2002, no. 01-85.243 (in a case involving charges of complicity of attempted extortion in relation to a terrorist enterprise).

Domestic law must be interpreted ‘in the light of the wording and purpose’ of a directive or of a framework decision (Faccini Dori v. Recreb Srl, Case no. C-91/92, [1994] ecr i-3347, para. 26; Pupino, Case no. C-105/03, [2005] ecr i-5309, para. 43). This applies regardless of whether the law in question was adopted to give effect to a norm of eu law (see e.g. Marleasing v. La Comercial Internacional de Alimentación, Case no. C-106/89, [1990] ecr i-4156, para. 8).

French Penal Code, Article 113-13.

The following analysis is based on a sample of trial judgments rendered between 2014 and 2016. In France, trial judgments and many appeal judgments are neither published nor readily available for consultation. The majority of the author’s requests for communication of trial judgments were denied by the competent authorities.

Ministère de la Justice, Direction des affaires criminelles et des grâces, Présentation de la loi n° 2014-1353 renforçant les dispositions relatives à la lutte contre le terrorisme – Renforcement de la coordination de la lutte antiterroriste, no. jusd1429083C, bomj no. 2014-12 (31 December 2014).

Ibid., p. 16; French Penal Code, Article 113-13.

See e.g. the cases concerning the Jabhat Al-Nusra, the Jaysh Muhammad in Bilad al-Sham (discussed below in Section 2.5), or, to give an example unrelated to Islamist terrorism, the ltte.

French Penal Code, Book iv.

Stgb, § 89a Abs. 3; § 129b Abs. 1.

See e.g. bgh, 27 October 2015, 3 Str 218/15, para. 14.

Présentation de la loi renforçant les dispositions relatives à la lutte contre le terrorisme, supra note 52, pp. 15–16 (author’s translation).

Ibid., p. 16 (author’s translation).

In one case, the defence took issue with the use of the word ‘jihad’, arguing that it was an Arabic word unknown in the French language. The tribunal rejected the argument, referring to the definition of ‘jihad’ found in French dictionaries (T. corr. Paris, 16ème ch., Belhoucine et autres, 11 July 2014, p. 15).

T. corr. Paris, 16ème ch., Omar et autres, 4 February 2016, pp. 30, 31 and 32, respectively.

T. corr. Paris, 16ème ch., Chanaa et autres, 7 January 2016, p. 18.

T. corr. Paris, 16ème ch., Gourmat et autres, 7 March 2014, p. 20.

T. corr. Paris, 16ème ch., Demarsy et Chaudemanche, 25 July 2016, p. 10.

T. corr. Paris, 16ème ch., Ait Messoud et autres, 23 March 2016, p. 32.

See e.g. Omar et autres, supra note 61, pp. 28–29.

Ibid., pp. 32–33 (speaking of ‘religious radicalism of Salafi obedience’).

See, in the Netherlands: Rb. Gelderland, Hakim B., 9 February 2015, Case no. ecli:nl:rbgel:2015:757, para. 3.3.2; Rb. Gelderland, Mohamed el A., 9 February 2015, Case no. ecli:nl:rbgel:2015:756, para. 3.4.2; in Germany: bgh, supra note 57, para. 11.

bgh, 2 April 2015, 3 StR 197/14, para. 11.

See Section 2.3.

bgh, supra note 57, para. 11 (discussing the case of a young female defendant who expressed readiness to use armed violence to defend herself against government forces).

See R. Frenett & T. Silverman, ‘Foreign Fighters: Motivations for Travel to Foreign Conflicts’, in de Guttry, Capone & Paulussen, supra note 27, 63, pp. 69–70 (pointing out that ‘many of the first wave of foreign fighters who travelled to Syria in order to overthrow Assad […] were willing to join almost any outfit that shared that aim’, and that ‘the choice of group is not always an active one on the part of the potential recruit’).

Protocol Additional (i) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, entered into force on 7 December 1978, 1125 unts 3, Article 43(1) and (2).

On so-called ‘internationalised non-international armed conflicts’ (or ‘mixed conflicts’), see notably H.-P. Gasser, ‘Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon’, 33 The American University International Law Review (1983) 145; E. Wilmshurst, ed., International Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012), pp. 56–79; T. Hoffmann, ‘Squaring the Circle? – International Humanitarian Law and Transnational Armed Conflicts’, in M.J. Matheson & D. Momtaz, eds., Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts (Leiden: Martinus Nijhoff, 2010) 217.

Additional Protocol (i), Article 43(1).

For an analysis of relevant issues of international humanitarian law in the context of the conflict against isil, see N. Zamir, ‘The Armed Conflict(s) against the Islamic State’, 18 Yearbook of International Humanitarian Law (2015) 91; R.A. Davis iii, ‘The Search for Status: Charting the Contours of Combatant Status in the Age of isil’, 223 Military Law Review (2015) 556.

See E. Crawford, The Treatment of Combatants and Insurgents under the Law of Armed Conflict (Oxford: Oxford University Press, 2010), pp. 154–173; M. Cherif Bassiouni, ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’, 98 The Journal of Criminal Law & Criminology (2008) 711, pp. 806, 808; G.S. Corn, ‘Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?’, 22 Stanford Law & Policy Review (2011) 253. See also J. Pictet, ed., The Geneva Conventions of 12 August 1949, Commentary (Geneva: International Committee of the Red Cross, 1960), p. 40 (‘once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4A(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals’).

See e.g. E. Sommario, ‘The Status of Foreign Fighters under International Humanitarian Law’, in de Guttry, Capone & Paulussen, supra note 27, 141, pp. 150, 153; J.D. Ohlin, ‘The Combatant’s Privilege in Asymmetric and Covert Conflicts’, 40 Yale Journal of International Law (2015) 337, pp. 370–371; L. Vierucci, ‘Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled’, 1 Journal of International Criminal Justice (2003) 284, pp. 294–295.

Under Article 44(2) of Additional Protocol i, persons who violate the rules of international humanitarian law are entitled to retain combatant status.

See M. Pérez-González, ‘Combating Terrorism: An International Humanitarian Law Perspective’, in P.A. Fernández-Sánchez, ed., International Legal Dimension of Terrorism (Leiden: Martinus Neijhoff, 2009) 253, p. 265 (‘What does seem questionable at the very least is the fevered transfer of the unlawfulness or illegality of a group (of resistance or national liberation) to the level of individual conduct during the hostilities even although the person respected the rules of international humanitarian law, denying him the status of combatant and treating him as a criminal because of his illegal participation in the hostilities. This means that the individual who joins or is linked to a terrorist organisation is made responsible for its policy even though he scrupulously follows the rules of war.’).

Geneva Convention (iii) Relative to the Treatment of Prisoners of War, 12 August 1949, entered into force on 21 October 1950, 75 unts 135, Article 5; Additional Protocol i, Article 45(1). See also Sommario, supra note 78, pp. 153, 158.

H. Decœur, ‘Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes’, 13 International Criminal Law Review (2013) 473.

See Rb. Den Haag, 1 December 2014, Maher H., Case no. ecli:nl:rbdha:2014:14652, para. 3; Rb. Den Haag, ‘Context case’, 10 December 2015, ecli:nl:rbdha:2015:14365, paras 7.19–7.45; Rb. ’s-Gravenhage, 21 October 2011, ltte, Case no. ecli:nl:rbsgr:2011:bt8829 (rejecting the applicability of terrorism offences to all acts carried out in connection to the armed conflict; this conclusion was overturned on appeal).

R v. Gul, [2013] uksc 64 (answering the question in the negative, but stressing that those issues ‘merit serious consideration’ and suggesting a ‘legislative narrowing of the definition of “terrorism”’ (para. 62)).

See, in Canada: Criminal Code, rsc 1985, c. C-46, Section 83.01(1); in New Zealand: Terrorism Suppression Act 2002, Section 5(4).

T. corr. Paris, 16ème ch., Hattay et autres, 6 July 2016. The author was present in court when the argument was raised by the defence. The same argument was raised again on appeal. The Paris Court of Appeals did mention it, but did not respond to it (ca Paris, pôle 8 ch. 1, 9 May 2017, p. 46).

tpe Paris, 25ème ch., Ben Hamouda et Abdelhafid, 29 June 2016.

ca Paris, ch. ins., 2 December 2011.

Cass. crim., 23 May 2012, no. 12-80.328.

According to news reports, the French President has authorised the special forces to carry out targeted killings in Syria, Iraq, and the Sahel, against individuals, including French nationals, suspected of presenting a serious threat to national security. Those killings were justified by government lawyers on the basis of ‘the right to self-defence’ (F. Lhomme & G. Davet, ‘Comment Hollande autorise « l’exécution ciblée » de terroristes’, Le Monde, 4 January 2017).

See e.g. Omar et autres, supra note 61; Gourmat et autres, supra note 63; Demarsy et Chaudemanche, supra note 64; Ait Messoud et autres, supra note 65.

See e.g. Demarsy et Chaudemanche, supra note 64.

Recall Section 1.2.

See Statement of Minister of Justice Jacques Toubon to the National Assembly, Compte-rendu des débats, supra note 40, p. 758.

See the cases cited supra note 91.

Cass. crim., 21 May 2014, no. 13-83.758 (concerning the pkk). See also Cass. crim., 10 April 2013, no. 12-82.088, and CA Paris, pôle 8 ch. 1, 22 February 2012, no. 09/13096 (concerning the ltte).

See Alix, supra note 40.

Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, Cases no. C-402/05 and C-415/05, [2008] ecr i-06351, para. 284.

Belhoucine et autres, supra note 60.

Chebboub et El Batmi, Trib. corr. Paris, 16ème ch., 26 February 2016, and ca Paris, pôle 8 ch. 1, 13 September 2016.

Recall Section 1.2.

See Belhoucine et autres, supra note 60, p. 64; Chanaa et autres, supra note 62, pp. 21, 26.

Chanaa et autres, supra note 62, pp. 20–21.

Belhoucine et autres, supra note 60.

Chanaa et autres, supra note 62, p. 45.

Ben Hamouda et Abdelhafid, supra note 87, p. 20.

Chanaa et autres, supra note 62, p. 20.

Demarsy et Chaudemanche, supra note 64, p. 13. This is surprising, given that in this case the defendants were arrested before they set out to give effect to their plan: as a result, the relevant ‘group’ could not have been isil, but the conspiracy formed by the defendants themselves (recall Section 2.4).

The perpetrators of the attack on Charlie Hebdo, Chérif and Saïd Kouachi, had claimed allegiance to Al-Qaeda in the Arabic Peninsula, and to the author’s knowledge, no connection to isil has been established.

See e.g. Chanaa et autres, supra note 62, p. 26; Demarsy et Chaudemanche, supra note 64, p. 9.

But see Section 3.1, discussing a new offence entailing as a constitutive element ‘the manifestation of an adherence to [a terrorist] ideology’.

Chanaa et autres, supra note 62, p. 21; Omar et autres, supra note 61, p. 31.

‘David Cameron: ‘Britons who join Islamic State are enemies of uk”, bbc (online), 1 October 2014.

‘Manuel Valls : « Nous devons anéantir les ennemis de la République »’, Le Monde, 14 November 2015.

Le Monde, supra note 4. The underlying rationale is that after the attacks committed in Paris in November 2015, defendants cannot be considered to have ignored the criminal goals pursued by isil in France.

Recall Section 1.2.

Proposition de loi tendant à renforcer l’efficacité de la lutte antiterroriste, no. 280, 17 December 2015, Article 12 (author’s translation).

M. Mercier, ‘Rapport fait au nom de la commission des lois’, no. 335, 27 January 2016, p. 51.

Under the 1789 Declaration of the Rights of Man and of the Citizen, ‘the law may only prohibit actions that are hurtful to society’ (Article 5) and ‘the law may only provide for punishment that is strictly and obviously necessary’ (Article 8). Similar principles are found in other European states: on the Rechtsgutslehre in Germany, see R. Hefendehl, A. von Hirsch & W. Wohlers, eds., Die Rechtsgutstheorie: Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? (Baden-Baden: Nomos, 2003); on the harm principle in Anglo-American legal tradition, see J.S. Mill, On Liberty (London, 1859), chap. i, para. 9, and J. Feinberg, The Moral Limits of the Criminal Law, vol. 1: Harm to Others (Oxford: Oxford University Press, 1987); on the principio di offensività in Italy, see V. Manes, Il principio di offensività nel diritto penale. Canone di politica criminale, criterio ermeneutico, parametro di ragionevolezza (Torino: Giappichelli, 2005).

See A. Sénécat, ‘Juger les djihadistes pour « intelligence avec l’ennemi » : la fausse piste de Marine Le Pen’, Le Monde, 15 June 2016.

Assemblée nationale, question no. 76050, jorf, 5 January 2016, p. 177.

French Penal Code, Article 421-2-5-2, established by Law no. 2017-258 of 28 February 2017, jorf no. 0051 (1 March 2017), Article 24. This offence initially created in June 2016 was struck down by the Constitutional Council (decision of 10 February 2017, no. 2016-611 qpc) but swiftly reintroduced by the legislator with the added requirement of ideological adhesion.

See E.R. Zaffaroni, ‘Dans un État de droit il n’y a que des délinquants’, Revue de science criminelle et de droit pénal comparé (2009) 43.

See generally G. Jakobs, ‘Kriminalisierung im Vorfeld einer Rechtsgutsverletzung’, 97 Zeitschrift für die gesamte Strafrechtswissenschaft (1985) 751; G. Jakobs, ‘Aux limites de l’orientation par le droit : le droit pénal de l’ennemi’, Revue de science criminelle et de droit pénal comparé (2009) 7.

S. Braum, ‘Are We Heading toward a European Form of ‘Enemy Criminal Law’? – On the Compatibility of Jakob’s Conception of an ‘Enemy Criminal Law’ with European Criminal Law’, in Galli & Weyembergh, supra note 29, p. 237.

See C. Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien, 3rd ed. (Berlin: Drucker & Humblot, 1991), in particular pp. 26–45.

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The Criminalisation of Armed Jihad under French Law: Guilt by Association in the Age of Enemy Criminal Law

in European Journal of Crime, Criminal Law and Criminal Justice