**All underlined expressions are clickable** Presented at the ICCT High Level Panel on the use of administrative measures in the context of Foreign Terrorist Fighters (2 September 2016, The Hague)

1. A French perspective on
the use of administrative
measures in counter-terrorism
Dr Bérénice Boutin
Researcher in public international law at the TMC Asser Instituut
Research fellow at the International Centre for Counter-Terrorism
High Level Panel: The Use of Administrative Measures in the Context of Foreign Terrorist Fighters
2 September 2016
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2. Overview
● Defining ‘administrative measures’ in
counter-terrorism
● Administrative measures against FTFs in France
○ What administrative measures are available?
○ How are they applied in practice?
○ Why is France turning to administrative measures?
● Human rights and rule of law issues
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3. Defining ‘administrative measures’
in counter-terrorism
● No established definition at international level
● Varies according to domestic context
● Often defined negatively: not criminal, not repressive...
● Working definition:
○ Protective measures, aimed at preventing or
disrupting terrorism within the territory
○ Decided by the executive (or with its close
involvement)
○ Subject to limited judicial review
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4. ‘pre-FTFs’
- Entry denial
- Expulsion orders
- Deprivation of
nationality
Nov 2014
- Travel bans
- Entry bans
Nov 2015
State of emergency:
- House arrests
- Warrantless searches
- Area bans
- Prohibition of meetings
- Closure of venues
- etc.
2015-2016
Debates on:
- Extending deprivation of
nationality
- Administrative detention
June 2016
Administrative
control of
returning FTFs
Administrative measures against FTFs in France 4

5. ‘Pre-FTFs’ measures
● Entry denial — Articles L213-1 to L213-9 CERF*
○ Foreigners who constitute a threat to public order
○ By decision of an administrative agent, written and motivated
● Expulsion orders — Articles L521-1 to L521-5, CERF
○ Foreigners who constitute a serious threat to public order
○ By decision of an administrative commission, with quasi-adversarial
procedure (opportunity to be heard)
● Deprivation of nationality — Article 25, Civil Code
○ A naturalised French citizen may be declared to have forfeited
French nationality (save where forfeiture has the effect of making
him stateless)
■ 1° Where he is sentenced for an offence which constitutes an
act of terrorism
■ 4° Where he committed acts incompatible with the status of
French and detrimental to the interests of France
○ By decree of the Prime Minister, after assent of the Conseil d'Etat
* Code of Entry and
Residence of Foreigners
and the Right to Asylum
(Code de l'entrée et du
séjour des étrangers et du
droit d'asile)
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6. Law n°2014-1353 of 13 Nov 2014
● Travel bans — Article L224-1 Code of Interior Security
(administrative interdiction to leave the territory)
○ French nationals, where there are serious reasons to believe that an
individual is planning to travel abroad in order to engage in terrorist
activities
○ For duration of max 6 months, renewable (total max 2 years)
○ By decision of the Minister of Interior, written and motivated
○ Individual notified, has opportunity to present observations
● Entry bans — Articles L214-1 to L214-7 CERF
(administrative interdiction to enter the territory)
○ Foreigners not residing and not located in France who constitute a
serious threat to public order and security
○ By decision of the Minister of Interior, motivated unless state
security involved
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7. Travel bans - in practice
● Travel documents (passport and ID card) are
automatically invalidated + must be handed over
● Notification to SIS2 (Schengen) and SLTD (Interpol)
● Numbers (Nov 2014 - April 2016)
○ 308 travel ban decisions
○ 56 individuals complained before admin tribunal,
4 travel bans were invalidated
○ 6 individuals breached the travel ban
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8. State of emergency (Law n°55-385
of 3 April 1955 as amended)
● Declared by the Government, then extended by the
Parliament (4 extensions, total duration of 14 months)
● Minister of Interior and Department’s Prefects can take the
following administrative measures:
○ Place individuals under house arrest (Art 6)
○ Order warrantless searches anywhere at any time (Art 11)
○ Impose area bans to individuals (Art 5)
○ Order the temporary closure of public venues; prohibit
meetings (Art 8)
○ Dismantle groups involved in activities posing a serious
threat to public order (Art 6-1)
● Temporary regime justified by exceptional circumstances
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9. State of emergency - conditions
and modalities
● Criteria to apply measures
○ House arrests – Where there are serious reasons to believe
that an individual poses a threat to public order and
security
○ Warrantless searches – Where there are serious reasons to
believe that a place is frequented by an individual posing a
threat to public order and security
○ Area bans – Anyone seeking in any way to hinder the action
of public authorities
● Modalities of house arrests
○ Obligation to stay at home up to 12 hours per day
○ Obligation to remain within designated area (eg. a city)
○ Obligation to report to a police station up to 3 times per
day
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10. State of emergency - in practice
● Evidence
○ ‘[M]easures relating to the state of emergency [are] often
ordered based only on information listed in ‘white notes’
[...] which are sometimes vague, laconic or subjective, and
sometimes contain factual errors.’ (CNCDH, Opinion 18
Feb 2016, §25)
● Numbers (Nov 2015 - July 2016)
○ 554 house arrests, 224 complaints, 15 invalidations
○ 3594 warrantless searches, 92 complaints
■ Only 6 resulted in referral to the anti-terrorism
Prosecutor
○ 540 area bans, 25 complaints, 13 invalidations
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11. State of emergency - concerns
and critics
● Broad and unclear criteria provides room for abuse
● Evidence and review: Judges have difficulty in assessing
conclusive value of ‘white notes’; lawyers have difficulty in
bringing contradictory evidence
● House arrest: affecting working and family life due to the
frequency of reporting at police stations (eg. case Mme C)
● Warrantless searches: conducted in excessive ways
(unnecessary physical and psychological violence, almost
systematic damage to property)
● Use for unrelated purposes (political activists, narcotics)
See: CNCDH, Opinion 18 Feb 2016; Amnesty International Report, HRW
Report, OHCHR Statement
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12. Debated and dropped projects in
the aftermath of Nov 2015
● Deprivation of nationality of French-born citizens
○ Project to extend deprivation of nationality, via modification of
the Constitution
○ Dropped after heated debates
● Measures against allegedly radicalised individuals
○ Government considered introducing measures to prevent
individuals suspected of being radicalised (fiche “S”) from
engaging in terrorism
■ Preventive administrative detention
■ Electronic tagging
■ House arrest
○ Dropped after Council of State opinion that it would violate
Constitution and international human rights obligations
○ Back into political debates in the aftermath of 14th
July attack.
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13. Law n°2016-731 of 3 June 2016
● Administrative control of returning FTFs
– Articles L225-1 to L225-8 Code of Interior Security
○ Individuals who left the country and returned, where there are
serious reasons to believe that the individual travelled in order
to join an area where terrorist groups are active, in such
conditions that the individual could endanger public safety
upon return on the French territory
○ By decision of the Minister of Interior, written and motivated
○ Individual notified, has opportunity to present observations
○ Control:
■ House arrest
■ Order to remain within an area
■ Reporting requirement (max 3/week)
■ Notify (change of) residence
■ Not be in direct or indirect contact with designated
individuals
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14. Rationale for the use of
administrative measures against
FTFs
● Protective measures, applied to disrupt terrorist networks
and prevent the occurrence of terrorist acts in territory
● Alternative to criminal prosecution
○ When criminal prosecution is not desired (eg. attempt
to travel)
○ When criminal prosecution is difficult (eg. not enough
evidence, not beyond reasonable doubt)
○ When no criminal offence was committed but
behaviour needs to be addressed (eg. being radicalised)
● Possibility to use secret intelligence as evidence. (eg.
involvement with terrorist networks)
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15. Human rights issues
● Due process: limited administrative judicial review
≠ full-fledged criminal procedure
● Freedom of movement (within and across borders)
● Right to private and family life
● Right to liberty
● Freedom of thought
● Non-discrimination
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16. Broader legal and policy issues
● Legislative fever
● Permanence and normalisation of temporary
exceptional measures
● Anti-human rights political discourses
● Stigmatisation and risks of feeding radicalisation
● Questionable efficiency
● Lack of global vision, buck-passing
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17. “[V]iolations of human rights in countering terrorism
may be both normatively wrong and counterproductive.
More specifically, […] reliance on new administrative
measures in Europe and elsewhere to counter real
security threats […] might potentially be
counterproductive to deradicalization strategies.
In crafting new measures, policy makers need to be
aware of the often unhappy historical legacy of
administrative measures.”
— Kent Roach, Comparative Counter-Terrorism Law
(2015, CUP), pp 747-748.
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18. “Security measures which were at the maximum level have been raised a notch”
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