French until Proven Terrorist

In the wake of a wave of attacks in the French capital on the evening of 13 November that killed 129 people and injured over 350 others, the French president announced a raft of measures to fight terrorism on 16 November.

One of the proposed measures directly affects the small number of French citizens who are dual nationals: extending deprivation of French nationality of individuals convicted of a terrorist offence to those who are born French nationals. The law currently only allows this in the case of naturalised dual nationals. Over the past few months, deprivation of nationality and subsequent deportation, particularly to Morocco, has become an important issue.

Another day, another attack

In May 2003, a series of attacks took place in Casablanca, Morocco, killing 45 people and injuring more than 100 others. The attacks were alleged to have been carried out by jihadist groups related to Al Qaeda. Over the following year, thousands of suspects were arrested. With credible claims of torture and mistreatment, by the end of 2004 almost 1000 people were convicted. Under duress of torture, some detainees pointed the finger at individuals further afield in France, Belgium and Germany.

On 5 April 2004, dawn raids carried out in two Paris suburbs led to the arrest of 13 people in connection to the Casablanca bombings. Among those arrested were five childhood friends from the suburb of Mantes-la-Jolie, who were accused of belonging to a French cell of an Al Qaeda offshoot, the Moroccan Islamic Combatant Group (GICM).

In 2007, 8 men were convicted of “membership of a terrorist organisation” on the sole basis of Moroccan intelligence, but not in direct relation to the attacks. All were given sentences of 6 to 8 years. Two of the men lost an appeal against conviction in 2008. Between 2009 and 2011, all were released having served their sentences.

The men nonetheless maintain their innocence and that the confessions made against them may have been obtained through torture. In 2012, when one of the men, Fouad Charouali was detained in Germany on an international arrest warrant pending deportation to Morocco, the French authorities refused to extradite him as the accusations against him were considered to have been made by two Moroccans who had been severely tortured.

Married with children, some of the men now run their own businesses and are perhaps a model of how ex-prisoners can reintegrate into society. Having served their time, their release should have been the end of their ordeal.

Double punishment

On 7 October 2015, now aged between 38 and 41, the five men, who were all naturalised between 1991 and 2001, were stripped of their French nationality by decree. In making the announcement to parliament the day before, Interior Minister Bernard Cazeneuve stated, “I have informed the Prime Minister of the decision to strip five nationalities of terrorists and I will continue this policy with the utmost determination.” No reason was given for the timing of the decision.

The five men are four French-Moroccan nationals Fouad Charouali, Rachid Aït El Hadj, Bachir Ghoumid, Redouane Aberbri and a French-Turkish national Attila Türk. The men were only provided with formal notice on 14 and 15 October, and were otherwise notified by the media.

This decree effectively means that stripped of their French nationality the men no longer have the right to work or live in France. Having decided to appeal the decision, the men held a press conference with their lawyers and launched a campaign called “Présumé Français” (Allegedly French).

At the October press conference, lawyer Jean-Pierre Spitzer stated that his clients “had already been tried and had paid their debt to society”. He called the deprivation of nationality a “double punishment” and stated that the appeal to the Conseil d’État would be based on the principle that a person cannot be tried twice for the same acts.

On 2 November, lawyers for the men filed two appeals before the Conseil d’État, the highest administrative court in the state and which has the final say on the decision to deprive an individual of French nationality. It has never overturned such a decision in the past.

Upon filing their appeal, one of the men, Redouane Aberbri told the press, “This happened more than 10 years ago. It’s crazy to put this forward as a reason to justify this deprivation of nationality and make us look like terrorists.” The men question why this move has been made now and to them. Their lawyers have criticised the political and disproportionate nature of this decision.

An interim appeal was heard on 18 November, asking for the implications of the decree to be suspended; lawyers for the men argued that they would be at risk of torture if returned to Morocco and Turkey. This application was rejected on 20 November, with the judge stating that “there is no serious doubt about the legality of the decrees.” The men are again at risk of imminent deportation.

Dual nationality and terrorism

Article 25 of the French Civil Code provides the conditions under which a French dual national who has been naturalised can be deprived of French nationality; it does not apply if it would result in them becoming stateless.

One also has to have been convicted, with the criminal acts having taken place prior to acquiring French nationality or within 10 years of becoming French. The deprivation must take place within 10 years as of the occurrence of the act, extended to 15 years in the case of terrorist acts.

The measure is exceptional. Between 1989, when the French government started keeping statistics, and 1998, when the provision on not making anyone stateless was introduced, 14 persons were deprived of French nationality, nine in non-terrorism cases relating to a provision that has since been removed.

No easy answers

Since 1998, eight people have been deprived of French nationality in relation to terrorism offences; under Nicolas Sarkozy (2007-2012), no such decrees were made. There have been six since 2014, including the five men stripped of their French nationality in October. Two of the five were born in France. Undoubtedly other challenges and issues will arise as the men appeal the decision. That process may take years with no easy solutions for any of the parties involved.

For the men involved, there is the stress of uncertainty, the threat of being removed from their families and financial loss. For the state, there is the possibility that an appeal to the European Court of Human Rights (ECtHR) will mean that due to the risk of torture in the country of origin France will not be able to deport them anyway. There are currently seven people in France who are subject to administrative restrictions akin to those in Britain. One of the men subject to such conditions is Algerian Kamel Daoudi, who was stripped of his French nationality in 2005 following conviction on terrorism charges. In 2009, the ECtHR rules that he could not be returned to Algeria.

The five latest persons subject to this measure Bernard Cazeneuve intends to pursue “with the utmost determination” believe they are the victims of a witch hunt. However, it seems that they and the other person stripped of his French nationality under the current French government are subject to more sinister political machinations.

Ahmed Sahnouni

Moroccan Ahmed Sahnouni el-Yaacoubi acquired French nationality in 2003. Arrested in 2010, in March 2013, he was sentenced to 7 years in jail for “membership of a terrorist organisation”. On 28 May 2014, Prime Minister Manuel Valls signed a decree stripping him of his French nationality on the basis of his conviction. While still in jail, he appealed the discriminatory nature of such a measure that only affects naturalised nationals, however in January 2015, the Constitutional Council ruled that it did not breach the French constitution.

Upon his release from prison on 22 September 2015, Ahmed Sahnouni was immediately transferred in a police van to the airport and deported to Morocco. In a press release issued the same day, Bernard Cazeneuve justified his deportation with “the particularly serious threat to public security” he posed by remaining in France. He had a pending asylum appeal, and none of the offences he was charged with or convicted of were in any way related to France itself.

The deportation was also carried out in disregard of an emergency order by the ECtHR made the evening before instructing the French government not to deport him until 25 September at least so it could examine whether he would be subject to torture or inhumane or degrading treatment upon his return to Morocco.

According to his French lawyer, Nurettin Meseci, upon arrival in Morocco he ‘disappeared’ for a week and in early October was sent to the notorious high-security Salé Prison, near Rabat. With its reputation for torture, it is likely Sahnouni has been mistreated and is likely to be tried again for the same offences. Others in Morocco have been sentenced to 20 years for similar offences.

Days earlier, French President François Hollande had spent the weekend with King Mohammed VI in Morocco. The purpose of the visit was to inaugurate a new era of good relations with Morocco. After Spain, France is Morocco’s largest trade partner. During the visit, Hollande told journalists that Morocco wished to work with France to “fight terrorism, which remains our greatest concern”.

The other focus of the visit was to expand trade between the two countries. Indeed, Ahmed Sahnouni and the four men currently facing deportation to Morocco may well have been a bargaining chip in the improved relations between France and Morocco that were under strain for over a year. Killing two birds with the same stone, this has also allowed the French government to appear tough on terrorism while amplifying the importance of this measure.

Breaking up … and making up

In February 2014, while attending a meeting in Paris with French officials, Abdellatif Hammouchi, the head of Morocco’s intelligence services (DGST) and an advisor to the Moroccan king on counterterrorism, was summoned by a French court in relation to complaints of torture made against him. His name has been personally implicated in a number of cases where terrorism suspects in Morocco have alleged serious torture as well as connected to secret prisons used by the CIA for extraordinary rendition at Temara and Ain Aouda.

In a May 2015 report, as part of its international campaign against torture, Amnesty International described the use of torture in Morocco as “endemic”. As part of its international campaign to highlight the rampant use of torture around the world, Amnesty has highlighted the case of Belgian-Moroccan dual national Ali Aarrass, who was extradited from Spain on allegations of involvement in the 2003 Casablanca bombings. He is also held at the prison in Salé where his abuse and torture continue.

Outraged at this treatment of such a high-ranking official, Morocco suspended all judicial cooperation with France and diplomatic relations were severely affected. It took almost a year to re-establish ties when in February 2015 the French government announced a new agreement on judicial assistance between the two countries and that Hammouchi would be conferred the Legion of Honour, France’s highest honour. The new protocol on judicial assistance was criticised by Amnesty and other human rights organisations as it grants impunity to Moroccan officials and is prejudicial to victims of torture and state crimes. It was passed overwhelmingly by the Senate on 15 July.

Risky business

In view of recent events and the current political climate in France under a state of emergency, the deportation of these men would offer the French government an opportunity to demonstrate that it means business. This is even though in actual fact measures to extend the current law to French nationals born in France will have a minimal impact. It may, however, offer inspiration to other states with dual nationals.

Deprivation of nationality also allows a state to wash its hands of its obligations under international law. In his 16 November statement, François Hollande referred to measures implemented by the UK. Deprivation of nationality in terrorism-related cases has allowed a number of gross human rights violations for which Britain has successfully managed to eschew responsibility.

Since 2010, almost 20 people have had their British nationality revoked on national security grounds. Recent provisions allow this even when an individual is left stateless. In 2012, Mahdi Hashi, a naturalised British national was deprived of his nationality and left stateless shortly before he ‘disappeared’, only to resurface months later in FBI custody and facing trial in New York State. He alleges he was physically and sexually tortured in secret jails and that the UK authorities knew of this. At least two others have been killed in US drone strikes since having their nationality stripped.

The legality of the latest proposals in France has yet to be worked out. The Justice Minister is reported to be against extending provisions on deprivation on nationality. Such measures that affect vulnerable individuals are more dangerous when abused by states for their own political gain.