The new face of terrorism – legal challenges The evolution of French legislation on terrorism and its implementation

C. S. M. RENAUDON

Master thesis – Victimology and Criminal Justice

Author: C.S.M. Renaudon ANR: 159065

Educational Program: Victimology and Criminal Justice Educational Institution: Tilburg University

Date: April 2018

Supervisor: A.M.H.M. Bax 2nd Reader: K. Banteka

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Table of contents 1. Introduction ...... 6 1.1. History of terrorism in France 7 1.2. Various definitions of “terrorism” 10 1.3. Purpose of the study 11 1.4. Research Question 12 1.5. Methodology 12 1.6. Outline 13 2. Terrorism: a legal framework ...... 14 2.1. Evolution of regulations regarding terrorism from 1994 to 2014 14 2.2. Intervention of EU and international law 19 3. Victims’ needs ...... 26 3.1. Different victims of terrorism 26 3.2. Needs of primary and secondary victims of the Paris attack 28 3.3. Needs of vicarious victims 34 4. Measures after the November 2015 attacks: an evaluation ...... 36 4.1. The fight against terrorism in France since 2015 36 4.2. An evaluation of the measures in place to fight terrorism 39 4.3. Discussion 45 5. Conclusion ...... 51 6. Appendices ...... 53 6.1. Appendix 1 – Interview with S. 53 6.2. Appendix 2 – Maslow’s pyramid of basic needs 56 6.3. Appendix 3 – Examples of European compensation funds 57 7. Bibliography ...... 58

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Abstract

David Rapoport has acknowledged the existence of four Waves of terrorism that occurred between the 19th century and the end of the 20th century. He also found that although there was no legal universal definition of terrorism, a lexical one has evolved throughout time following the waves of terrorism occurring in the world. For instance, France began drafting its terrorism legislation in 1893, in 1986 and finally in the 2010s following new attacks.

The present thesis deals with a literature review of French, European and international legislation regarding terrorism which was found on the French, European and United Nations databases. Many instruments deal with terrorism, its offences, the prevention, and the fight against terrorism which this thesis has compiled, focusing on instruments regarding Islamist terrorism which peaked in 1986 and in the following years in France.

A consensus definition from French, European and international legal instruments was used to define terrorism as a criminal act targeting civilians or natural persons, meant to induce fear in the population and which also has the additional motive of undermining the workings of government. With this definition, this thesis acknowledges that terrorism causes more victims than the ones directly affected by an attack. Furthermore, organized networks have emerged and are crossing borders to commit their crimes, distancing themselves from the previous modus operandi of lone wolves used in the 1980s and 1990s. Even the crimes in Western societies have evolved, and different modus operandi are being used such as mass shootings and cars driven into crowds.

Due to the mass victimization caused by terrorist attacks, victims’ needs cannot be overlooked and should not be limited to those directly affected by attacks. The aim of terrorism is to terrorize an entire population, and a significant part of the community is bound to be impacted psychologically. However, coping mechanisms depend on one’s personality and resilience. To make sure that France is sufficiently prepared to face terrorism, parliamentary reports are published to show what can be improved and what has worked to face the effects of terrorism. These reports allow French officials to adopt measures to improve the situation and facilitate care for victims.

The analysis concludes that, although terrorism induces fear and shock in a population, proper governmental reactions to the attack and solidarity among individuals will help a population boost its resilience and manage to return to as normal a life as possible.

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List of Abbreviations 1ère Civ. 1ère Chambre Civile Art. Article C. assises Cour d’Assises Cass. Cour de Cassation Const. Constitution Crim Chambre criminelle CoE Council of Europe Cons. Const. Conseil Constitutionnel ECtHR European Court on Human Rights ECHR European Convention on Human Rights EU European Union FENVAC Fédération Nationale des Victimes d’Attentats et d’Accidents Collectifs FGTI Fonds de garantie des victimes des actes de terrorisme et d’autres infractions HRWR Human Rights Watch Report IO International Organization ISIS Islamic State in Iraq and Syria LUV Liste unique des victimes QPC Question prioritaire de Constitutionnalité RAA Recueil des Actes Administratifs TA Tribunal Administratif UN United Nations UNGA United Nation General Assembly UNODOC United Nations Office on Drugs and Crime UNSC United Nation Security Council

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1. Introduction

He remembers that for my birthday party I insisted on people still coming, to show that the terrorists ‘had not won’. He thought that it was a good idea to come, his family was stressed out, but he reassured them he was not taking any risk, ‘I know where I’m going’, we’re not going out. We stayed at a friend’s house where I had my party, we talked, drank, we had a good time. By talking with the others, it could be noticed that everyone had their own ideas and had lived it differently from the others. […] On his own victimization: S. answers in two parts. He does not consider himself a victim, it did not concern him, closely or from afar. But as a young French citizen, he does consider himself a victim: they were ‘targeted attacks against our culture’, we go out to bars, go to football games, concerts, it’s our way of life that was attacked, not me directly. 1

This quote is from the narrative of a young Parisian about his experience of the Paris attacks on November 13th, 2015. He was at home that night and no one in his inner circle was killed or injured in the attacks. However, he did express having been affected by them. His feelings reflect the Parisian motto: fluctuat nec mergitur (battered by waves but not sunk) which became a slogan after the November 2015 attacks. Most people could identify with this phrase after the horror of that night and the fact that they would not stop leading a normal social life even though the country could be under attack at any time, hence mobilizing Parisians’ resiliency. However, France’s victimization as a target of terrorism is not new. Calauzènes and Rapoport both identified the start of terrorism in France with the 18th century Reign of Terror.2 During the 19th century, terrorism against the State became terrorism by one political group, the anarchists. A century later, two new faces of terrorism emerged: terrorism aimed at publicizing a will to become an independent State – for instance for French Algeria in the 1950s and 1960s – and religious terrorism in the 1990s.3 Terrorism in France in the 21st century presents a mix of religious and political ideologies. In addition, France has been increasingly targeted since 2012, with a peak in 2015 and 2016, namely with the 7, 8, and 9 January 2015 (Charlie Hebdo and Hypercacher) attacks, the 13 November 2015 (Bataclan) attacks as well as the 14 July 2016 attacks in Nice (see chapter 1.1).4 They caused 17, 130 and 84 deaths respectively.5

As terrorism, faced by France and other states, has evolved over the years, so has the

1 See Annex I for the transcript and translation of the interview of S., 21-year-old man, student. He does not know anyone deceased or injured during the Paris attacks. 2 Jérôme Calauzènes (French history professor), Le terrorisme depuis 1945 (Groupe ISP, 2012), 1; David Rapoport (political theorist), Terrorism: Critical Concepts in Political Science (1st ed. Routledge, 2006) 47. 3 Ibid. 4 Sébastien Pietrasanta (French politician for the Socialist Party and ombudsman), Rapport fait au nom de la commission d’enquête relative aux moyens mis en œuvre par l’État pour lutter contre le terrorisme depuis le 7 janvier 2015, (5 July 2016), II 51. 5 Ibid, I 41, 61; Ministry of Homeland Security, Attentat du 14 juillet 2016 à Nice. 6

definition itself and it varies from one author to another. Thus, international, regional, and national laws, as well as scholars have their own definition for terrorism. This introduction will focus on four definitions in chapter 1.2: Schmid’s consensus academic definition,6 a UN definition,7 the European definition,8 and the French definition.9 Although these four definitions come from various sources, they have several criteria in common which will be used to provide a definition of terrorism for this paper.

1.1. History of terrorism in France

According to Calauzènes and Rapoport, the word ‘terror’ was defined for the first time in a French dictionary in 1794 during the Reign of Terror era.10 However, the authors differ in the approach they use to tackle the history of terrorism. Calauzènes cites all the phases of terrorism in France while Rapoport identifies four waves of terrorism. Calauzènes reports that ‘terror’ was used to describe ‘the spreading of the Jacobin Terror to the most isolated provinces, by the drastic use of the guillotine and the rifle with the express intent to terrorize, i.e. paralyze enemies and potential opponents with fear’.11 The State used the Jacobin Terror against its citizens to convince them to adopt a new ideology.12 Thereafter, terrorism found a new purpose during the 19th century: fighting the State using terror for political goals. The agents of terrorism also evolved into individuals or a group of individuals that could be organized and clandestine. They started to target victims for what they represented as well as to induce confusion and fear in their enemies.13

Both authors identify anarchists as leaders of a phase of terrorism, Rapoport even identifies this phase as the First Wave of modern terrorism, and both recognize that anarchists set the example for future generations of terrorists.14 They committed attacks in France and around the world in the late 19th century. François Claudius Koënigstein ‘Ravachol’ was a famous anarchist who planned two bombings in Paris in 1892. In 1893, Auguste Vaillant, another anarchist, set off a bomb in the Chambre des deputes (Chamber of deputies).15 Finally in 1894, Sante Geronimo Caserio stabbed Sadi Carnot, the fifth president of the IIIrd Republic, to

6 Alex Schmid (Research Fellow at the International Center for Counter-Terrorism), Revised Academic Consensus Definition (2012) 6(2), Perspectives on Terrorism. 7 UNSC S/RES/1566(2004) on Threats to international peace and security caused by terrorist acts (8 October 2004), point 3. 8 Directive (EU) 2017/541 of the European Parliament and of the Council on combatting terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA [2017] OJEU L 88/6. 9 Art. 421-1 Code Pénal. 10 Calauzènes (n 2) 1; Rapoport (n 2) 50. 11 Calauzènes (n 2) 1; la propagation de la Terreur jacobine jusque dans les provinces les plus reculées, par l’emploi spectaculaire de la guillotine et du fusil, avec l’objectif identifié de terroriser, c’est-à-dire de paralyser par la peur les ennemis et opposants éventuels’ 12 Ibid 2. 13 Ibid 1. 14 Rapoport (n 2) 47; 50. 15 The Chamber of deputies was a governmental building where a political assembly composed of deputies elected the President of the French Republic from 1875 to 1940. 7

death.16 France’s response to these attacks was the adoption of the lois scélérates (evil laws) which reduced freedom of the press. Targeting anarchists only, they also prohibited criminal associations of any kind and punished and repressed propaganda of anarchist ideas. These laws were repealed in 1992.17

After the anarchist-inspired terrorism, a new phase of arose in the 1920s, corresponding to Rapoport’s Second Wave. It raised awareness of a peoples’ right to self-determination18 After World War II, more attacks were perpetrated to this end.19 Groups both in favor and against Algerian self-determination targeted its colonial ruler, France.20 The attacks (in favor) targeted civilians and local populations to incite them to leave colonized Algeria, those against targeted politicians. One of the most famous attacks was the attack at the Petit Clamart on 22 August 1962, when Général de Gaulle’s car was shot at.21 At the time, he was President of the Vth Republic and in favor of Algeria’s right to self-determination. Nevertheless, Rapoport reports that this Second Wave also brought changes to the language used by these groups who did not consider themselves terrorists but rather ‘freedom fighters’.22

During the 1970s and 1980s, attacks committed on French soil usually targeted State institutions. For example the group Action Directe (Direct Action) targeted the Ministry of Employment and Health.23 These attacks reflected the tensions brought up by the Cold War, namely fighting against imperialism and capitalism.24 Rapoport identified this period as the Third Wave where groups organized world-wide actions against political symbols such as embassies, politicians or other government buildings.25 In parallel, terrorist groups followed the cause of Palestine by using violence against States that supported Israel as well as the Lebanese civil war (1975-1990).26 The French ambassador in Damascus, Syria, was murdered on 4 September 1981 as a means to protest against France’s involvement in the Lebanese civil war.27 Paris was also attacked several times in the 1980s. The deadliest attack was the one perpetrated on rue de Rennes on 17 September 1986 which killed 11 people. It was attributed to Hezbollah, a terrorist group based in Lebanon and founded in 1982.28 Terrorist attacks in favor of the independence of some regions were also perpetrated.29 France faced

16 Calauzènes (n 2), 2. 17 Mathilde Larrère (French historian), État d’urgence : Le précédent des “lois scélérates, (Politis, 29 November, 2015). 18 Rapoport (n 2), 52-56. 19 Calauzènes (n 2), 2. 20 Ibid 3-4. 21 Ibid 4. 22 Rapoport (n 2), 56. 23 Calauzènes (n 2), 5; Action Directe was founded in 1979 by Jean-Marc Rouillan and Nathalie Ménigon. They were responsible for the murders of General Audran in 1985 and Georges Besses in 1986. 24 Ibid 6. 25 Rapoport (n 2), 56-61. 26 Calauzènes (n 2), 6. 27 Ibid. 28 Ibid. 29 Ibid 7. 8

this problem for two of its regions: Corsica (which intentionally destroyed more buildings than killed people) and the Basque country (which was more violent and concerned both France and Spain).30 Basque terrorism was born out of the movement Euskadi ta Askatasuna (ETA, Basque Country and Liberty) created in 1959 in Spain to fight the Franco regime.31 But contrary to the Spanish ETA, groups in France have affirmed that their acts are against the French State and are not meant to cause human loss.32 Nationalist terrorist groups that are present in both the Basque and the Corsican regions promote terrorist actions against the French State so that the French Government acknowledges their culture, history, and identity as different from the rest of the country.33 Most trials linked to terrorism predating 2012 that are still being heard in French courts, concern Corsica and the Basque country.34

After the end of the Cold War, religious terrorism was rising.35 Rapoport identifies this as the Fourth Wave of terrorism.36 Between 1995 and 1996, France was targeted multiple times. Most notably was the hostage situation of Air France flight AF8969 from 24 to 26 December 1994, perpetrated by four Algerian Islamists of the Armed Islamic Group (GIA).37 The same terrorist group also committed the bomb attacks of the RER (the Paris suburban train) stations Saint-Michel and Port-Royal in 1995 and 1996.38 These attacks aimed to promote a new vision of the world and the application of sharia law.39 In 2001, the multiple attacks of 11 September shocked the world when several symbols of the United States were attacked. The following years, these attacks spread to other western countries. In 2004, bomb attacks occurred on trains in Madrid40 and year later, several bombs targeted London’s public transportation.41

France was targeted once more in 2012 when Mohamed Merah killed three military officers and four Jewish people in front of a Jewish school before being killed in the raid carried out by police intervention forces.42 Separate events occurred after the 2012 attack but the deadliest year was 2015.43 In January, the Charlie Hebdo shooting, the murder of a French municipal police officer and the hostage situation at the Hypercacher caused the death of 17 civilians and the death of the three terrorists.44 From February to November, several separate individual

30 Ibid 8. 31 Barbara Loyer (French president of the French Institute of geopolitics) and Christian Aguerre (chief editor of several works on the French Basque country), Terrorisme et démocratie : les exemples basque et catalan (2008) 3 130, Hérodote 112-145. 32 Ibid 134. 33 Ibid 138. 34 Pietrasanta (n 4), II 502. 35 Calauzènes (n 2) 9. 36 Rapoport (n 2), 61-65. 37 Calauzènes (n 2), 9. 38 Ibid. 39 Ibid; Rapoport (n 2), 64. 40 Calauzènes (n 2), 10. 41 Ibid. 42 Pietrasanta (n 4), II 153. 43 Ibid 192. 44 Pietrasanta (n 4), I 41. 9

attacks were perpetrated.45 November 13 was the date where France saw its worst attack since World War II due to the multisite attacks perpetrated in Seine-Saint-Denis (region near Paris) and in four different locations in Paris which resulted in 130 deaths.46 In 2016, the Nice attacks on 14 July resulted in the death of 84 people.47 Contrary to attacks in previous years, terrorists have shown their will to die while committing the attacks.48 Looking at recent attacks, most perpetrators who committed the acts themselves are dead. Only Salah Abdeslam survived the Paris attacks and awaits his trial in France.49

1.2. Various definitions of “terrorism”

Once a crime has occurred, it needs to be attributed to a State, to an organization and/or to an individual.50 Following this, victims of the crime need to be identified according to national, regional, and/or international law. In addition, their needs that could be answered by various forms of remedies should be identified as well. For example, reparation measures can be discussed and implemented to answer victims’ needs.51 Concerning the crime of terrorism, the numerous definitions make it harder to define who the victims of terrorism are, especially since the goal of the crime is to induce fear in society. One can wonder if only people who are directly affected by terrorism are victims, or if the term can be extended to anyone who is afraid because of the attacks.

First, if we take the definition of terrorism given by UN Resolution 1566 (2004), it states that terrorism is a criminal act that also targets civilians and is meant to provoke terror, intimidate, or compel a government and/or an international organization to perform or refrain from an act. It also points out that there are no circumstances justifying the occurrence of the crime.52 This prevents States from using terrorist attacks to exercise their right to self- determination provided in the UN Charter.53 Although, this resolution is non-binding, it is still recognized as having legal authority. Secondly, article 421-1 of the French Criminal Code gives the French definition of terrorism by listing crimes.54 These offences are listed as willful attacks on life, on the physical integrity of the person, abduction, and kidnapping, as well as possessing and/or fabricating explosives or biological weapons. They also included high-jacking of aircrafts, ships, or any other means of transportation. In addition, the French definition mentions that the perpetrators of such acts can be combat organizations and disbanded movements. The French definition is the only one of these three legal definitions that considers

45 Ibid 69. 46 Ibid 61. 47 Ministry of Homeland Security (n 5), Attentat du 14 juillet 2016 à Nice. 48 Pietrasanta (n 4), II 153. 49 Ibid 485, 526. 50 UNGA Resolution 56/83, Responsibility of States for internationally wrongful acts (2001), Art. 1-2. 51 Ibid Art. 28-37; UNGA Res 60/147, Annex, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (16 December 2005), Art. 3. 52 UN Resolution 1566 (2004) (n 7), para. 3. 53 UN Charter (1945), Art.1, para.2. 54 Art. 421-1 Code Pénal (n 9). 10

these groups. Thirdly, the European definition states that terrorist offences are constituted by intentional acts against a person’s life aimed at seriously damaging a country or an international organization.55 Moreover, the list of offences is more extensive and includes the interference with natural resources such as water or power. However, it fails to define who a victim of terrorism is. The other definitions mention attacks against civilians and non- combatants while the European definition only mentions ‘person’. Finally, Schmid compiled an academic definition to define terrorism as a special form or tactic aimed at generating fear, targeting civilians and noncombatants.56 Schmid also mentions the fact that the direct victims of terrorism are not usually targeted as such, but their victimization is aimed at reaching a broader audience due to the significant amount of media coverage a terrorist attack has. He added that these are not merely isolated but rather a series of attacks meant to create a climate of fear in a population. His academic definition fits the example of France and the multiple attacks it has faced in recent years.

Thus, the four definitions may differ in their wording, but they do show common elements to define terrorism: a criminal act targeting civilians or a natural person, meant to induce fear in the population and which also has the alternative motive of damaging a government’s functioning. As they were written up through time, they also show the evolution of terrorists’ tactics and means, i.e. from simply killing individuals to high-jacking planes and vessels and using chemical weapons. The EU Directive 2017/541 is the latest European document to define terrorism and to include the offenses mentioned above. It also extends the crime of terrorism to preparation, funding, and recruiting.57 It compiles previous legal documents on the crime of terrorism into one document that is binding to States which allows the reader to have an overview of all the forms a terrorist attack can take.

1.3. Purpose of the study

This thesis is aimed at assessing whether the measures implemented in France have helped victims to recover from terrorist attacks. It compiles existing scientific and legal research literature, legislation at the international, European, and domestic levels regarding terrorism to define the new face of terrorism. Nowadays, terrorists target anyone with the aim of instilling fear and imposing their ideology. To counteract this growing menace, countries have had to adapt and sometimes change their [legal] measures. For example, new trials regarding terrorism are going to start in France and these will not only focus on trying one of the perpetrators of the Paris attacks of November 2015, but will also prosecute people who helped the perpetrators by directing, financing, and procuring arms.58 The novelty of this paper is related to a close following of the evolution of French legislation and the fact that it not only focuses on the experience of direct victims of the Paris attacks but also acknowledges the impact the events have had on the population in general.

55 EU Directive 2017/541 (n 8), Art. 3(1). 56 Schmid (n 6). 57 EU Directive 2017/541 (n 8), respectively Art. 4, 11, 6. 58 Pietrasanta (n 4), II 502. 11

The targeted audience ranges from people who have no knowledge of French law regarding terrorism to experienced researchers who could benefit from the point of view of the writer who has experienced these events, living in Paris at the time.59 The research offers a compilation of existing legislation on the one hand, including the new law which was adopted in 2017, and on the other hand, a practical view on the experience of the events of 13 November 2015. This work will show that it is important to keep an up-to-date protection system for victims of terrorism in France.

1.4. Research Question

Terrorist attacks have impacted the legal and judicial systems throughout the world. Yet, as terrorism and its acts evolved, so did the legislation. France first drafted laws in 1893 to face anarchist-inspired terrorism.60 In 1986, almost 100 years later, France adopted new laws tailored to the newer face of terrorism i.e. religious terrorism.61 Again in 2015, France adapted its legal and medical systems to face mass victimization caused by multiple attacks done in the name of the Islamic State in Iraq and Syria (ISIS). By then, France had already passed legislation prohibiting and prosecuting terrorist offenses and has had a reparation plan that would allow victims to seek reparation from the (French) State. Nevertheless, France is still changing its laws to counterbalance the consequences of terrorist attacks, such as the coverage of medical expenses, economic losses, and funeral costs. People who aid terrorists or terrorist groups also face the criminal justice system. Finally, by prosecuting terrorists and those who aid them, one could suggest this answers a victim’s needs for justice and for the truth and acknowledgment of their victimization. This thesis is led with the following question:

How is France changing its legislation to prosecute terrorists and people linked to terrorism with the possible aim of answering victims’ needs?

If prosecuting terrorists and people linked to terrorism is important, direct victims should not be overlooked and their needs should be addressed.

1.5. Methodology

To show the importance for France and other States maintain an updated protection system for victims of terrorism, I made the following choices regarding the literature I used. I am accustomed to using the Dalloz-Actualité (Dalloz-News) database for my law courses to find articles ranging from French civil law, French criminal law and to international law. I also decided to use Google Scholar to find a broader range of literature using the search terms ‘terrorism’; ‘history’; ‘definition’; ‘victims’ needs’. I also restricted my choices to the following criteria: language (either French or English); authors and reliable sources; and finally,

59 Although I was at home that night, I still lived with the consequences of the attacks, namely the restrictive measures put into place with bag checks at school, supermarkets, shopping centers; as well as the fear of another attack. 60 Crimino Corpus, 28 JUILLET 1894. Loi sur les menées anarchistes, art. 2 (CLAMOR, 17 March 2013). 61 Loi n° 86-1020 du 9 septembre 1986 relative à la lutte contre le terrorisme. 12

usefulness of the literature. Literature I chose included books which offered more sources which allowed me to find references through the technique of snowballing. Literature on the impact of previous terrorist attacks in 2001 was also selected for this paper to analyze the needs of victims of terrorism. As the Paris attacks of 2015 are recent, not much literature could be found concerning the mental impact they had on the population. Yet, literature on previous attacks that was reliable and could thus be used to determine the impact of a terrorist attack was used. I also consulted the French Homeland Security and the French National Assembly governmental websites to find reports and statistics on terrorism.

1.6. Outline

To determine that France is up to date with the terrorism phases, this paper will examine the judicial measures regulating terrorism in Chapter 2. The third chapter will deal with the needs of victims of terrorism. Chapter 4 will seek to determine whether the change of legislation since the 2015 attacks will benefit victims of terrorism and whether the measures implemented are efficient in the fight against terrorism. Finally, chapter 5 will conclude my paper and show observations that could be considered to help said victims.

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2. Terrorism: a legal framework

France adopted its first terrorism legislation – the evil laws - following the 1893 bombing perpetrated by Auguste Vaillant and the 1894 murder of the then President of France, Sadi Carnot.62 This set of three laws were aimed at anarchists and anarchist sympathizers who instigate uprisings, provoke or incite others to commit theft, murder, pillaging, or arson.63 In addition, provoking soldiers by diverting them from their military duties (i.e. obeying their superiors) was also prohibited and punishable by these laws. They also authorized courts and tribunals to prohibit conducting and publicizing debates which presented anarchist ideas as they would pose a threat to public safety.64 These laws not only focused on individuals suspected of being anarchists or sympathizing with the ideology, but also limited freedom of the press.65 However, this limitation of freedom of the press was only applied to one party: the far-left wing Party. Hence these laws only targeted one group, i.e. anarchists and anarchist sympathizers.66

Nearly a century later, in 1986, France created new legislation to face the rise of religious terrorism and has since then continued to update its legislation, following European and international legislation and jurisprudence. Given that no changes were made in terrorism legislation between 1894 and 1986, a gap in French law was revealed when new faces of terrorism appeared with the rise of religious and Islamic terrorism.

2.1. Evolution of regulations regarding terrorism from 1994 to 2014

As mentioned above, French legislation regarding terrorism appeared in 1893 and returned after 1986.67 However, the French Criminal Code made terrorist offences separate offences in 1994, distinguishing them by the sole characteristics of being committed intentionally in cooperation with an individual or collective group whose goal is to disturb public order by means of intimidation or terror.68 Nevertheless, the offences of article 421-1 of the French Criminal Code only concern those who commit attacks themselves (whether the acts are attacks against life, fabricating weapons, or money laundering). Between 1996 and 2017, the French Criminal Code was amended regarding offences committed in relation to terrorist activities. This also allows the prosecution of those who indirectly participate in a terrorist act under article 421-2-1 of the French Criminal Code.69 It condemns the crime of terrorist conspiracy which entails acting within a group knowing that its activities are aimed at

62 Larrère (n 17). 63 Crimino Corpus (n 60), Art. 2. 64 Ibid Art. 5. 65 Crimino corpus (n 60); Larrère (n 17). 66 Crimino corpus (n 60); Larrère (n 17). 67 Loi n° 86-1020 (n 61), Art. 9. 68 Intentionnellement en relation avec une entreprise individuelle ou collective ayant pour but de troubler gravement l’ordre public par l’intimidation ou la terreur. 69 Loi n° 96-647 du 22 juillet 1996 tendant à renforcer la répression du terrorisme et des atteintes aux personnes dépositaires de l’autorité publique ou chargées d’une mission de service public et comportant des dispositions relatives à la police judiciaire, NOR: JUSX9500140L, Art. 3. 14

committing terrorist attacks. This article was used as the rationale in the case Crim. 21 mai 2014.70 The association Centre culturel kurde Ahmet Kaya (Association Kurdish cultural center Ahmet Kaya) was found guilty of the crime of terrorist conspiracy. Judges found that the organization had ties to the terrorist group PKK (Party of the workers of Kurdistan). The judges from the three levels of the French judicial system found that the group was materially aiding the PKK which is known for its terrorist activities.71 The judges used articles 421-1 (definition of terrorism), 421-2-1 (participation), and 421-2-2 (financing) of the French Criminal Code to justify their ruling and found that the members of the organization knew that the money they gave would finance the terrorist activities of the PKK. They also found that the center also provided a location for their meetings which is prohibited under article 421-2-1 of the French Criminal Code. Thus, the defendants were condemned for their ties to the PKK due to the material aid they supplied to the group.

Article 421-2-2 of the French Criminal Code prohibits the financing of terrorist activities, whether the finances are of monetary value or property value.72 The provision also bans giving financial advice to a terrorist individual or group. Furthermore, the article highlights the fact that the individual knows the purpose of these finances, meaning that if A gives money to B who s/he knows supports a terrorist group, s/he knows that the loan or the advice s/he gives will be used for a terrorist activity. Finally, the article points out that an individual can still be charged with this offence whether the crime has occurred or not, making the intention of financing important for the charges brought against the individual suspected of financing terrorism. Mennucci emphasizes how important finances are for terrorist groups to survive.73 In addition, article 421-2-3 of the French Criminal Code criminalizes the fact of being unable to account for resources corresponding to one’s lifestyle in addition to being habitually close to a person or persons who engage in terrorist activities. This crime can be punished by 7-years imprisonment and a €100.000 fine.74 This means that if A who is unemployed shows signs of wealth that do not correspond to his or her financial situation on paper, and who is in contact with B and C who have been condemned for being affiliated with a terrorist organization, then A could be indicted under article 421-2-3 of the French Criminal Code.

Article 421-2-4 of the French Criminal Code deals with the recruitment of people to participate in a terrorist offence.75 Recruitment can be done through peaceful means (promises, gifts) or through force and coercion (use of threat). Moreover, article 421-2-5 of the French Criminal Code deals with the provocation and promotion of terrorism and is punishable

70 Cour de cassation, Chambre Criminelle, 21 mai 2014, pourvoi n° 13-83758 (Publié au Bulletin). The decision was rendered by the highest judicial court, meaning that the case has already been heard at first instance and that an appeal had been filed. The Court of Cassation is the third and final level in the French judicial system. 71 Cass. Crim., 21 mai 2014 (n 70). 72 Art. 421-2-2 Code Pénal (n 9). 73 Patrick Mennucci (French politician for the Socialist Party and ombudsman), Rapport fait au nom de la commission d’enquête sur la surveillance des filières et des individus djihadistes (2 June 2015), 78- 81. 74 Art. 421-2-3 Code Pénal (n 9). 75 Loi n° 2012-1432 du 21 décembre 2012 relative à la sécurité et à la lutte contre le terrorisme, Art. 3. 15

by five years of imprisonment and a €75 000 fine.76 It is an aggravated offence if the promotion is done using online public services. A person convicted of this aggravated offence is subject to 7 years imprisonment and a €100 000 fine. This is similar to the evil laws that prohibited the promotion of anarchist propaganda.77 Between 1 January 2015 and 13 February 2015, 185 legal proceedings were initiated under article 421-2-5 of the French Criminal Code.78 In parallel, article 421-2-6 of the French Criminal Code prohibits the preparation of a terrorist act by obtaining or seeking documents, obtaining or fabricating substances that could cause harm to others, training to use such substances and weapons.79 Even travelling and staying at a location of an armed terrorist group is included in this article and constitutes a criminal offence. However, a QPC (Question Prioritaire de Constitutionnalité, preliminary ruling on constitutionality) of 7 April 2017 modified article 421-2-6 of the French Criminal Code and deleted its term ‘seeking’ from paragraph I (1) which was deemed contrary to the French Constitution.80

In addition to defining terrorist offences, French legislation also provides for rules regarding prosecution, investigation and judicial decisions relating to terrorism. These can be found in the French Criminal Procedural Code, Section XV of Book IV and include specific rules on jurisdiction.81 For instance, article 706-16 of the French Criminal Procedural Code provides for the prosecution of anyone regardless of their nationality, who commits their crimes in France or against a French legal or moral person, but also French nationals who commit their crimes abroad.82 For example, A, who is a French national commits a terrorist attack in Syria and then comes back to France, would be within the scope of this article. French Criminal courts can claim jurisdiction to try A as he is a French national. Another example where French courts can have jurisdiction is when B, who is Iraqi, commits a terrorist attack in France or when he commits a terrorist attack on an aircraft registered in France. This allows French jurisdictions to be competent to try any case that involves France. Although this jurisdiction criteria rule also applies for common law offences, the French lawmaker has specified that this rule be applied in the case of terrorism. Article 706-17 of the French Criminal Procedural Code renders Parisian courts competent to hear cases that involve terrorism. This means that if a terrorist attack, which involves France in any way, is committed, Parisian courts are competent to try those responsible. It centralizes jurisdiction in the capital of France where other administrations that deal with terrorism are located, such as the Direction Générale de la Sécurité Intérieure (DGSI, General Directorate for Internal Security) or the crisis center that will be set up after a

76 Art. 421-2-5 Code Pénal (n 9). 77 Crimino Corpus (n 60). 78 Mennucci (n 73), 101. 79 Art 421-2-6 Code Pénal (n 9). 80 Conseil Constitutionnel, Décision n°2017-625 QPC du 7 avril 2017. This is the process known as a preliminary ruling on constitutionality in French Constitutional law when a provision is not considered to be in conformity with the French Constitution. The Conseil d’État, the highest administrative court, will have to determine whether the provisions are in conformity or not. If the non-conformity to the Constitution is found, then the provision will have to be modified as to stay within the Constitution. 81 Art. 706-73 et suivants Code de procédure pénale. 82 Art. 113-6 to 113-12 Code Pénal (n 9). 16

terrorist event.83 A specific office for these cases and more judges were needed even though by doing so, it overloaded the work of the judges.84 Furthermore, the assize court that was specially constituted is solely composed of professional judges instead of three professional judges and assessors that are selected among the population under articles 698-6 and 706- 25 of the French Criminal Procedural Code.85 This specially-composed assize court has started to prosecute cases from the most recent phase of terrorism.86 It is in parallel with the “normal” assize court that hears criminal trials and which is composed of three professional judges and a popular jury.87

The cases prosecuted by the assize court specifically composed for the matter of terrorism include the case of Abdelkader Merah and Fettah Malki. The Parisian criminal court sentenced Abdelkader Merah and Fettah Malki on 2 November 2017 to 20 and 14 years in prison respectively.88 They were indicted for being accomplices in the 7 murders perpetrated by Mohamed Merah in Toulouse in 2012 and for criminal conspiracy in connection with a terrorist enterprise. They were only convicted for the second charge, that is, for being present when Mohamed Merah stole the scooter he used in his killing spree (the charge held against Abdelkader Merah) and for providing the firepower (the charge held against Fettah Malki).89 However, an appeal was filed so the court’s decision may change.90 Still, other trials will follow, whether concerning parents who give money to their children who have joined ISIS, or concerning those who provided financial, material or logistic aid during the Paris attacks.91 Two men (Jawad Bendaoud and Mohamed Soumah) were indicted for harboring terrorists under article 434-6 of the French Criminal Code and they are now awaiting their trial.92 Furthermore, France also had to deal with the prosecution of so-called “fake victims” under article 313-1 to 313-3 of the Criminal Code.93 After the attacks in Paris and Nice, some people claimed to be

83 DGSI is the General Directorate for Internal Security which is an intelligence agency that gather information on terrorism as part of its missions; Pietrasanta (n 4), I 118-119, II 459. 84 Pietrasanta (n 4), II 498. 85 Ibid 498, 502. 86 Ibid. 87 Fact Sheet, Jurés d’assises. French citizens of the ages 23 or up can serve on a jury. They are registered on a list in their city hall from which their name is randomly drawn every year to serve as a juror before a criminal court at first or second instance. The jurors that have been randomly drawn by the mayor, then by the court will follow a training course which explains their role in the trial and on the court. They participate in the debate and discuss the charges and the sentencing of the accused. At first instance, 6 jurors are selected against 9 for an appeal Chamber. 88 Cour d’assises de Paris, spécialement composée Statuant en premier ressort, 2 Novembre 2017 in M.B., Condamnation d’Abdelkader Merah : la motivation de la cour d’assises (Dalloz-Actualité, 2 November 2017). 89 Ibid 5-8, 13. 90 Circulaire du 11 mai 2017 relative à l’audiencement des procédures criminelles, NOR : JUSD1714291C acknowledges the fact there is a backlog of cases waiting to be heard before a court of appeal. The date of the appeal in the case of Abdelkader Merah and Fettah Malki is not known yet, but it can take at least a couple of months for the new trial as it depends on the time judges have and the size of the case. 91 Pietrasanta (n 4), II 502, 506. 92 Association de la Presse Judiciaire, Calendrier des principaux procès déjà audiencés. 93 FGTI Press Release, Indemnisation des victimes des attentats du 13 Novembre 2015 (6 November 2017). 17

victims of the attacks and sought reparations from the Fond de Garantie pour les victimes d’actes de terrorisme et d’infractions (FGTI, guarantee fund for victims of terrorism and other offences).94 However, the investigative process allowed the FGTI to see that they had not been victims of the attacks. In one of the cases, the GPS on the claimant’s phone showed that she was nowhere near the attacks on 13 November 2015. Other confabulators approached victim associations claiming they owed their lives to others who died or who were injured. However, when the victim association investigated, the testimonies of the confabulators did not coincide with the description of real victims.

Regulations concerning the investigation of terrorism now authorize investigators to use a pseudonym on the Internet.95 Furthermore, investigations do not have to be limited to one region of the national territory but can now be enlarged to the entire national territory. This means that if a terrorist travels from Paris to Marseille, s/he can be under surveillance on his or her trip.96 Undercover work is also authorized as a means of surveillance of a terrorist cell.97 The length of police custody can be extended to six days when terrorism is at stake and the right to an attorney can be withheld for three days.98 Moreover, search warrants by night are allowed, meaning that police officers no longer have to wait for the legal time frame to execute a search warrant (i.e. between 06:00 and 21:00 following article 59 of the French Criminal Procedural Code).99 Phone taps for cases relating to terrorism no longer need to be done in the process of an investigation but are authorized for a preliminary investigation or an investigation of flagrancy that require a quick criminal response due to an imminent threat.100 Finally, surveillance through sound and image detection technology and data surveillance can be used without the interested party’s consent.101 The 2014 French Law reinforcing the fight against terrorism led to various administrative decisions regarding the prevention of terrorist attacks such as prohibiting an individual from leaving national territory.102 This is meant to prevent potential fighters from leaving for Syria or Iraq. Furthermore, the 2014 law also allows judicial decisions barring an individual’s right to enter the country.103 Finally, house arrest decisions can also be authorized with the obligation for the person to present him or herself before a judge or before a police officer every day or every week.104

94 Louise Bugier, Victor Faubert, and Marie-Violette Bernard (journalists), “Besoin de reconnaissance, appât du gain… Pourquoi des affabulateurs se sont fait passer pour des victimes’’ (France Télévisions, 25 July 2017). 95 Art. 706-87-1 Code de procédure pénale (n 81). 96 Ibid Art. 706-80. 97 Ibid Art. 706-81 to 706-87. 98 Ibid Art. 706-88 and 706-88-1. 99 Ibid Art. 706-89. 100 Ibid Art. 706-95. 101 Ibid Art. 706-96 to 706-102-9. 102 Loi n° 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme (1), NOR: INTX1414166L, Art. 1; Art. L. 224-1 Code de la sécurité intérieure. 103 Loi n° 2014-1353 (n 102), Art. 2. 104 Ibid Art. 3. 18

2.2. Intervention of EU and international law

Several international and European legal instruments influenced domestic terrorism laws. Letschert and colleagues mention the most important ones.105 This thesis focuses on the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the 1985 UN Declaration of Basic Principles); the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of Humanitarian Law (“the Van Boven and Bassiouni Principles”); and the 2014 UN Resolution 2178 as international law instruments. In addition, the 1983 Council of Europe Convention on the compensation of victims of violent crimes, the 2005 Convention on the Prevention of Terrorism, and the EU Directive 2012/29/EU as part of the European legislation regarding terrorism were included.

2.2.1. The fight against terrorism at the European and international level

At the European level, the 1977 European Convention on the Suppression of Terrorism and its 2003 Protocol were the first documents to deal with terrorism.106 Both documents mark the start of anti-terrorism legislation in the European Union (EU) but are now obsolete. The 2005 Council of Europe Convention on the Prevention of Terrorism (the 2005 Convention) is also part of the European legislation and has replaced the documents mentioned above.107 It is also a current subject at the international level and led to the adoption of countless treaties, Conventions, and United Nations (UN) Resolutions. One of the most recent UN Resolutions on the matter is UN Resolution 2178 (2014).108

The 2005 EU Convention mentions that Member States need to cooperate with one another to maximize the chances of success against terrorism. At a national level, Member States should take any measure to prevent terrorism such as educational programs, and increasing first-aid training for the population.109This Convention’s scope not only deals with terrorist offences, but also with ancillary offences, i.e. participating, organizing, directing, or contributing to the commission of a terrorist offence.110 It also points out that the terrorist act need not have occurred yet, charges can be brought against any individual who attempted to commit the offences mentioned at articles 5, 6, or 7, respectively publicly promoting terrorism,

105 Rianne Letschert, Ines Staiger and Antony Pemberton (Eds.), Assisting Victims of Terrorism Towards a European Standard of Justice (Springer 2010). They mention documents from the UN, the International Criminal Court (ICC), the Council of Europe, the Organization for Security and Cooperation in Europe (OSCE), statements issued by the European Forum for Service Systems (EFVS) and, the EU. I left out the OSCE and the EFVS documents as the authors already give an overview of their influence on victims’ rights; and the ICC Rome Statute because although it provides a good overview to repair mass victimization, it does not have specific texts regarding terrorism. 106 CoE Convention on the Suppression of Terrorism [1977], CETS 90; CoE Protocol Amending Convention on the Suppression of Terrorism [2003], CETS 190. 107 CoE Convention on the Prevention of Terrorism [2005], CETS 196. 108 UNSC S/RES/2178 (2014) (24 September 2014). 109 Ibid Art. 3. 110 2005 CoE Convention (n 107), Art. 9. 19

recruitment and training for terrorism.111 At the same time it highlights that domestic legislation and trials should ensure the respect of the accused’s rights.112 For example, the life imprisonment sentence clashes with the offender’s right under article 3 of the European Convention on Human Rights (ECHR).113 The European Court on Human Rights (ECtHR) dealt with several cases where sentences of life imprisonment were claimed to violate article 3 of the ECHR, i.e. prohibition of torture and inhuman or degrading treatment or punishment.114 When looking at cases involving France, the Court found that the sentences of life imprisonment were not in violation of article 3 of the ECHR as the applicants had the possibility to have their sentences reviewed by national courts on several occasions. The fact that their requests to have their sentences reduced were denied does not entail that there was a violation of article 3 of the ECHR.115 The 2005 Convention states that jurisdictional competence is determined on the place of the attack or on the nationality of the perpetrator.116 This means that if a Belgian commits an attack in France, both the French and the Belgian courts can be judicially competent to prosecute the perpetrator. Finally, the 2005 Convention also states the need for international cooperation between Member States to prevent and prosecute terrorism.117 Exchanging information about the whereabouts of terrorists is a means of cooperating as well as collecting evidence since terrorists may travel to prepare or recruit.

The UN Resolution 2178 (2014) mentions previous resolutions and gives an overview of obligations for States. It first highlights the need for States to take internal measures to fight terrorism and prosecute perpetrators for offences and ancillary offences of terrorism.118 Then, it promotes international cooperation which includes exchanging information, States assisting one another during the investigation and the prosecution process and preventing radicalization. International cooperation is important as it allows identifying those at risk and can thus help with the deradicalization process.119 Finally, the UN Resolution refers to previous resolutions that created several groups and task forces that focused on counter-terrorism.120 Compared to the 2005 Convention, the UN Resolution mentions the sharing of passenger information by airlines with national authorities to warn them about the movement of terrorist foreigner fighters, as well as referring to terrorist groups that are identified as such by the international community, including ISIS.121

111 Ibid Art. 8. 112 Ibid Art. 12. 113 European Convention on Human Rights (adopted on 4 November 1950, entered into force in 1953), Art. 3. 114 ECtHR, Léger v. France (2009) and ECtHR, Bodein v. France (2014); European Court on Human Rights, Factsheet – Life imprisonment (June 2017), Press Unit. The ECtHR Factsheet allows an overview of cases involving Italy, Germany, Turkey, and other State Parties to the ECHR that were involved with a potential violation of Art. 3 of the ECHR. 115 Ibid. 116 2005 CoE Convention (n 107), Art. 14. 117 Ibid Art. 4, 17. 118 UN Resolution 2178 (2014) (n 108) para 2-3, 5-10. 119 Ibid para 4, 11-19. 120 Ibid para 20-26. 121 Ibid para 9-10. 20

In parallel, victims’ rights also need to be considered and respected such as their right to compensation or their right to support.122 The 2005 Convention lacks precision as to the extent of these victims’ rights and what States should be doing for victims. However, the 2012 EU Directive filled this gap by establishing minimum standards that Member States need to follow regarding victims’ rights.

2.2.2. Victims’ rights in general

The 1985 UN Declaration of Basic Principles and the EU Directive 2012/29/EU both contain general victims’ rights. However, the 1985 UN Declaration of Basic Principles is considered soft law, while the EU 2012 Directive is considered hard law and thus all EU Member States should apply its provisions.

The 1985 UN Declaration of Basic Principles was adopted by a UN General Assembly resolution and it raises awareness in victims’ rights.123 It first defines victims of crime as persons who have suffered harm (whether physical, mental, or economical) due to an act or an omission by a State that is in violation of its international obligations.124 A victim can also be the immediate family, a person’s relative and even a person who was harmed when assisting victims or preventing the victimization.125 This entails that the 1985 UN Declaration of Basic Principles acknowledges the victimization of both direct and indirect victims. Moreover, a victim is considered as such whether the perpetrator has been identified, has had charges brought against him or her, or was convicted.126 It also encompasses victims’ rights to access to justice and fair treatment, their right to restitution; their right to compensation; and their right to assistance.

The right to have access to justice and fair treatment entails that victims must be treated with compassion and respect when they start legal proceedings to seek justice for the harm they suffered. Furthermore, victims need to be informed of their rights such as their right to be informed about the proceedings, the role they can play as witnesses, the charges brought against the perpetrator(s), their right to privacy and their safety. They should also be made aware of their right to seek justice through alternative mechanisms such as mediation, arbitration, or any form of justice their culture uses.127 Their right to restitution should be explained to them. This right entails that those responsible (private or public individuals, i.e. citizens, State representatives, or the State itself) must repair the harm done to victims.128 Restitution can take the form of returning confiscated property or reestablishing a person in his or her function before the violation. It can also refer to ensuring prosecution of those responsible and ensuring that the violations would not occur again through the adoption of new

122 2005 CoE Convention (n 107), Art. 13. 123 UNGA A/RES/40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985 UN Declaration) (29 November 1985). 124 Ibid Art. 1. 125 Ibid Art. 2. 126 Ibid. 127 Ibid Art. 4-7. 128 Ibid Art. 8, 11. 21

laws.129 However, it is not always possible to implement this right when a victim has. This is the case with terrorism as a person who died in the attack cannot be brought back to life, nor can someone who has lost a limb grow it back. The right to compensation supplements the right to restitution.130 Compensation takes the form of a monetary fund to repair the physical and mental harm done to victims and their families. The offender or the States will have to provide for the compensation. The 1985 UN Declaration provides for a national fund organized by States and a fund which would cover victims who cannot seek reparation from their own State. The French FGTI is an example of such a national fund for victims of terrorism. It is meant to compensate victims of terrorism in France regardless of their nationality and French nationals who are victims of a terrorist attack abroad.131 Finally, the right to assistance entails two intertwined measures for the victims’ benefit. Firstly, victims’ medical health should be covered and they should be informed as to the location where they can benefit from medical services (physical, psychological and social care).132 Secondly, the 1985 UN Declaration also points out the need for specialized training for anyone who, because of their profession, encounters victims.133 It is a must for victims who have “special needs because of the nature of the harm inflicted”.134 However, the 1985 UN Declaration is a general document regarding victims of crime and has no specific provisions for victims of terrorism, whose victimization requires special attention.

In contrast, the 2012 EU Directive defines the term “victim” in more detail.135 It considers a person a victim when s/he has suffered harm, whether physical, mental, or economic, due to a criminal offence. Family members are also considered victims when a person has died due to a criminal offence.136 This differs from the UN 1985 Declaration of Basic Principles that also consider those who aided victims as victims. It also gives a list of victims’ rights which ranges from procedural rights (right to file a claim, right to understand and be understood), the right to participation, the right to protection, especially for victims with special needs, to specialized training for practitioners. Compared to the 1985 UN Declaration of Basic Principles, the EU Directive is more complete regarding victims’ rights. Finally, the 2012 EU Directive also acknowledges the special needs for victims of terrorism.137 However, it must be pointed out that it was written almost 30 years after the UN legal instrument, enabling it to adapt to modern times. Correspondingly, this gap in years also allowed the Directive to encompass victims’ rights that were developed in that time-period.

As terrorism continued to evolve, so did European legislation. For instance, the EU drafted a new directive in 2017 to update its legislation on combatting terrorism. The EU Directive

129 Ibid Art. 9. 130 Ibid Art. 12-13. 131 Loi n° 86-1020 (n 61), Art. 9. 132 1985 UN Declaration (n 123), Art. 14-15. 133 Ibid Art. 16. 134 Ibid Art. 17. 135 Directive 2012/29/EU of the European Parliament and of the Council establishing minimum Standards on the rights, support, and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJEU L 315. 136 Ibid Art. 1(a)(i) and (ii). 137 Ibid Art. 22. 22

2017/541 (2017 Directive) compiles what has been done internationally and at the European level regarding the fight against terrorism.138 It covers all offences of terrorism and the means used by terrorists to spread their ideology. For instance, the 2017 Directive includes social media as a means of spreading terrorist ideologies.139 Then a list of offences is given, and it includes ‘threat’ as an offence.140 This entails that not just acts are considered offences. However, the global idea of what terrorism is has not changed. The 2017 Directive adds crimes happening on the internet to the list of offences. This parallels the evolution of terrorism and all the means used to advertise the ideology used by terrorists. Following this aim, in order to keep up with the evolution of terrorism, two offences relating to terrorism are added: directing and participating by giving information or financing the acts of terrorism.141 Title III lists all offences related to terrorism such as training, participating in a theft that provides for the terrorist act, financing with the knowledge of what the finances are aimed at, travelling, and facilitating travel. Again, the 2017 Directive tries to fill any legal vacuum and includes as many offences perpetrators can be condemned for relating to terrorism. Title IV gives general provisions to the two previous titles, mainly stating that the act does not need to have been committed for an offence to be characterized as such: the intent and the threat to commit a terrorist act is sufficient to qualify as an offence.142 Moreover, offences that are aimed at promoting and provoking terrorist acts also need to be punished.143 Finally, sentences can be reduced if the perpetrator has cooperated with judicial systems, but this is just a suggestion, probably being left to judges’ discretionary power.144 Both natural and legal persons can be held liable for any of the offences relating to terrorism.145 However, the sanctions taken against them differ: i.e. natural persons can be sent to prison while legal person would see their meeting location closed (i.e. an administrative matter). Provisions regarding jurisdiction does not differ from previous legislation, but it is extended for the offence of training.146 Moreover, the 2017 Directive specifies that when several Member States can claim jurisdiction for the same offence, they are free to decide which one of them will hear the case but need to keep in mind that they should centralize the proceedings in a single Member State.147 This is the case with the Paris attacks and Salah Abdeslam. He is Belgian which allows Belgian courts to claim jurisdiction, but he committed his crime in France rendering French courts competent. Moreover, most victims were French nationals or residents and the attacks occurred in France. He is also detained in France.148 It is thus logical to have a trial in France as the crime occurred there and all the evidence is there.

138 EU Directive 2017/541 (n 8). 139 Ibid recital 6. 140 Ibid Art. 3. 141 Ibid Art. 4. 142 Ibid Art. 13. 143 Ibid Art. 14. 144 Ibid Art. 16. 145 Ibid Art. 15, 17. 146 Ibid Art. 19(2). 147 Ibid Art. 19(3). 148 Pietrasanta (n 4), II 526. 23

When terrorism is promoted on the internet, Member States should take all possible measures to close the website down, or at least block or remove the content displayed on it.149 This means that if a blog promotes committing a terrorist offence, Member States should remove the blog from the internet as a sanction. Title V focuses on the protection of, support to and rights of victims of terrorism. The right to support cannot limit itself to victims residing in the State where the offence was committed but is extended to victims living outside of the Member State targeted.150 Title V repeats what the 2012 Directive provides for victims, thus emphasizing the importance of their rights. An example of victims’ rights is the right to reparation.

2.2.3. The right to reparation

The right to reparation, that is also called the right to remedy, is provided for in several legal instruments. It is aimed at redressing victims’ situation after a violation of international law has been committed which has caused harm. Two legal instruments will be mentioned in this section: the 1983 Council of Europe Convention on Compensation and the 2005 Van Boven-Bassiouni Principles.

The European Convention on the Compensation of Victims of Violent Crimes provides an overview of the remedies made available to victims.151 It first deals with those who are eligible for a compensation claim: those who have suffered harm and the dependents of those who have died.152 The Convention then adds criteria of nationality or residence for those who fall under the provisions of the Convention.153 This means that either nationals or permanent residents of the Members party to the Convention can base their claim for compensation on this Convention. Then, a list of what compensation can cover is given.154 It is mainly focused on covering basic needs of victims such as the funeral costs, medical care, and loss of wages. However, a State can limit its compensation scheme and decide to limit the amount of money awarded to victims.155 A State can also define a time-limit for victims to apply for compensation.156 Finally, compensation may be reduced or refused if the victim has ties to a criminal organization, if their financial situation is good enough to cover their expenses, if it is contrary to public policy, or if insurance policies cover these expenses.157 Finally, the Convention provides for States to publicize the availability of compensatory schemes.158 This allows victims to be informed of their right to compensation and how to obtain it.

149 EU Directive 2017/541 (n 8) Art. 21. 150 Ibid Art. 26. 151 CoE European Convention on the Compensation of Victims of Violent Crimes [1983] ETS No.116. 152 Ibid Art. 2. 153 Ibid Art. 3. 154 Ibid Art. 4. 155 Ibid Art. 5. 156 Ibid Art. 6. 157 Ibid Art. 7-9. 158 Ibid Art. 11. 24

Although the European Convention is a binding document and covers most monetary costs, it lacks the recognition of other forms of reparation. International law acknowledges that compensation is not the only form of remedy.159 For example, the 2005 Van Boven-Bassiouni Principles provides for other rights. Title IX of the Principles deals with the 5 forms of reparations that are divided into 9 articles. After presenting the purpose of reparations and reminding States that they need to step in if a perpetrator is unwilling or unable to pay reparations, the Principles underline the need for reparations to be proportionate to the violation.160 It then mentions five forms of reparations which are: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. Firstly, restitution implies restoring the situation as if the violation had not occurred. It entails restoration of confiscated property, rights, and of life (family, work, identity, citizenship).161 However, it is not a new right as the 1985 UN Declaration also provides for this right.162 Then, compensation covers any economically assessable damage, mental or physical harm, loss of opportunities, material damage (destruction of property), and moral damage, medical or legal costs.163 Rehabilitation covers any sort of care (medical and psychological care, and legal or social services).164 Fourthly, satisfaction consists, amongst others, of an apology, truth-finding, publication of judicial decisions regarding the violations, memorials, remembrance days.165 Finally, guarantees of non-repetition such as education in school, training of armed forces, new laws can also be implemented.166 One form of reparation does not exclude another and they should be applied on a case-by-case basis. If these instruments are applied to victims of terrorism, compensation, rehabilitation, and satisfaction measures are necessary for victims. Guarantees of non-repetition could also be considered by having States cooperating with one another to prevent future victimization and the adoption of new laws and measures to ensure a smaller chance of re-victimization. However, restitution (of life) is impossible for victims of terrorism.

National, European, and international legislation have adopted provisions on the prosecution, prevention, and protection of victims against terrorism. More recently, the 2012 and 2017 Directives acknowledge that victims of terrorism have special needs that will be identified in chapter 3. A 2017 French law also adopted new measures aimed at the fight against and the prevention of terrorism.167

159 Van Boven-Bassiouni Principles (n 51), Art. 14. 160 Ibid Art. 15-18. 161 Ibid Art. 19. 162 1985 UN Declaration (123), Art. 8-11. 163 Van Boven-Bassiouni Principles (n 51) Art. 20. 164 Ibid Art. 21. 165 Ibid Art. 22. 166 Ibid Art. 23. 167 Loi n°2017-1510 du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme (1) ; NOR : INTX1716370L. 25

3. Victims’ needs

As mentioned above, reparation mechanisms are aimed at benefiting victims and fulfilling their needs. To do this, the needs must be identified as it helps victims recover from their victimization. This not only recalls Maslow’s pyramid which summarizes those general needs168 but also several observations. For example, not all victims will seek psychological help which indicates that victims have different needs. Even Maslow’s input on this pyramid has changed because he realized that victims could cumulate the fulfilment of their needs at the same time.169 He had initially considered that for victims to fulfil a need, they had to first achieve the need that was in the inferior base of his pyramid. The evolution of his theory shows that the application of the pyramid of needs is not that easy in reality. What needs to be repaired may vary since there are different victims who experience an event, i.e. primary victims who experienced the events, secondary victims who assisted the direct victims or the families of direct victims.170

3.1. Different victims of terrorism

As stated in the introduction, if there are several definitions of terrorism, there are also several definitions for victims of terrorism. Various authors such as Letschert and colleagues or Fernandez de Casadevante Romani have given definitions of victims of terrorism based on international law.171 Letschert and colleagues identify three categories of victims (primary, secondary and tertiary victims) while Fernandez de Casadevante Romani only refers to two categories: direct (those who suffered harm) and indirect victims (the family and dependents of the direct victims or the people who suffered harm while intervening in helping direct victims).172 The United Nations Office on Drugs and Crime (UNODC) defines four categories of victims of terrorism: direct, secondary, indirect, and potential victims of terrorism.173 Although Fernandez de Casadevante Romani’s definition also makes the distinction between direct and indirect victims, the fact that he does not consider first responders victims of terrorism overshadows the impact of the Paris attacks on first responders.174 Letschert and colleagues’ definition of victims of terrorism will be used in this chapter to define victims of terrorism and their needs since it resembles the definition given by the UNODC. In addition, the three categories they distinguished reflect the definition of terrorism and, also highlight the fact that

168 Abraham Maslow, Some Theoretical Consequences of Basic Need-Gratification (1948) 16(4), JOP, 402-416. 169 Maslow, Motivation and Personality, (3rd edition by Harper and Row Publishers, 1954/1970), 35-47. 170 Letschert, Staiger and Pemberton (n 105). 171 Ibid; Carlos Fernandez de Casadevante Romani, International Law of Victims, 83. He is a Chair holder at the Centre d’Excellence de Jean Monnet in European Law. This Center which was created in 2014 allows the sharing of scientific, human, and documentary resources in the multiple fields of law, economics, and political science. Its projects include training courses in European and international law notably. 172 Letschert, Staiger and Pemberton (n 105), 51-52; Fernandez de Casadevante Romani (n 171), 83. 173 UNODC, Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework (2015), para. 59. 174 Pietrasanta (n 4), II 27, 296. 26

terrorism not only impacts primary and secondary victims but creates tertiary victims in its aim to terrorize people.

Primary victims are those who were killed or injured, either by the terrorists or during the rescue mission as a casualty of the intervention by first responders. Applied to the Paris attacks, primary victims are the 130 killed, 486 physically injured, and the 1032 people in shock.175 Those who suffered from economic losses are also considered primary victims. This means that the owners of the cafés, the restaurant and the Bataclan according to Letschert and colleagues’ definition.

Secondary victims refer to the relatives of primary victims and first responders. The number of such victims is harder to pinpoint as family sizes vary from one victim to another, notably for blended families. Still, we can assume that it includes at least parents, spouses, and siblings which would fit the category of close relatives of victims from the FGTI.176 Regarding first responders, this would include the police officers, the firemen, the EMTs, and the Red Cross Workers.177 Several superior officers have mentioned the impact of the terrorist attacks on their coworkers.178

Finally, the tertiary victims (also called vicarious victims) are those who do not fit into the two other categories (i.e. those who were killed, injured, and their relatives). They can be subject to vicarious traumatization which can be defined as what is felt by people who have no relations with direct victims or who did not witness an attack themselves, but still show signs of PTSD.179 The perceived likeness to the direct victims also impacts vicarious victims who can identify with the first group.180 An additional argument to consider vicarious victims is the trauma from television viewing.181 As shown by Ahern and colleagues, people who watched traumatic events on television developed probable PTSD. Moreover, those who suffer from economic losses could also be included if their losses are not due to the destruction of their establishment during the terrorist attack but rather due to a decrease in tourism in general after the attack, therefore affecting their own business.182 After the Paris attacks, tourism and foreign

175 Ibid II 475. 176 FGTI Press Release (n 93). 177 Rachel Sabin-Farrell and Graham Turpin, Vicarious traumatization: implications for the mental health of health workers? (2003), Clinical Psychology Review 23, 449-480. 178 Pietrasanta (n 4), II 475. 179 Sandro Galea and colleagues, Trends of Probable Post-Traumatic Stress Disorder in New York City after the September 11 Terrorist Attacks (2003), AJE 158(6), 514-524. 180 Heidi Wayment, It Could Have Been Me: Vicarious Victims and Disaster-Focused Distress (2004), Personality and Social Psychology Bulletin, 30, 515-529; Letschert, Staiger and Pemberton (n 105), 149. 181 Jennifer Ahern and colleagues, Television images and psychological symptoms after the September 11 terrorist attacks (2002), Psychiatry 65(4), 289-300; Jennifer Ahern, Television Images and Probable Posttraumatic Stress Disorder After September 11 The Role of Background Characteristics, Event Exposures, and Perievent Panic (2004), Journal of Nervous and Mental Disease 192(3), 217-226; Letschert, Staiger, and Pemberton (n 105), 150. 182 Dilip Das & Peter Kratcoski, Terrorist Victimization: Definition, Focus and Impact, in Dilip Das & Peter Kratcoski (eds.), Meeting the Challenges of Global Terrorism, Prevention, Control and Recovery 27

investments were expected to decrease which would have impacted businesses’ turnover and investments.183 However, tourism did not impact the French economy when a comparison is made for the years 2013 to 2016. The gross domestic product (GDP) is 7.4% in 2013, 7.4% in 2014, 7.3% in 2015, and 7.1% in 2016.184 Tertiary victimization can also be explained with the Terror Management Theory (TMT).185 People are reminded of their own mortality and to contain their fear, they reaffirm their worldview and reject other cultures. The TMT can explain the existence for this group of tertiary victims that suffer from the political consequences of attacks because of people who use the TMT to reject other cultures. France has been pointed out for a rise of islamophobia by several Human Rights Watch Reports (HRWR), Islamophobic acts that have led to the existence of tertiary victims who are targeted for being Muslims.186

Having distinguished the three categories of victims, their needs can be identified and fulfilled to diminish the effects of the terrorist attacks. Letschert and colleagues give extensive lists of the needs of victims of terrorism, lists which will be applied to the victims of the Paris attacks.187

3.2. Needs of primary and secondary victims of the Paris attack

3.2.1. The theoretical framework of victims’ needs

Maslow’s pyramid of hierarchy of needs, which was mentioned above, sets a general idea of what people need.188 He states that an individual’s life is structured according to a set of organized needs ranging from basic physiological needs (food, water, warmth and rest), safety needs, belongingness and love needs, esteem needs to self-fulfillment needs.189 Applied to victims of terrorism, needs could range from food and water to stay warm, to feeling safe through, amongst others, the presence of police and military personnel ensuring safety checks, to feeling loved by those in one’s close circle. Being recognized as a victim by society is also a need and going back to one’s professional life is an indicator of one’s achieving self- actualization. Maslow further states that once a need is completed, the individual achieves a

(Lexington Books, Lanham, Boulder, New York, Oxford, 2003), 13 cited in Letschert, Staiger, and Pemberton (n 105) 51. 183 Bruno Frey, Simon Luechinger, Alois Stutzer, Calculating Tragedy: assessing the cost of terrorism (2007) Journal of Economic Surveys 21(1), 1-24. 184 Direction Générale des Entreprises, Etudes économiques key facts on tourism, Edition 2014; Etudes économiques Key facts on tourism, Edition 2015; Etudes économiques key facts on tourism, Edition 2016; Etudes économiques key facts on tourism, Edition 2017. The Direction Générale des Entreprises (Enterprise Directorate General) is a branch of the French Ministry of Economics and Finances and deals with public policy in the domains of industry, digital economy, tourism, commerce, craftsmanship, and services. 185 Tom Pyzszczynski, Jeff Greenberg, and Sheldon Solomon cited in Letschert, Staiger and Pemberton (n 105) 153. 186 Human Rights Watch, World Report of 2014 Events of 2013, 438; World Report of 2015 Events of 2014, 235; World Report of 2016 Events of 2015, 251; World Report of 2017 Events of 2016, 268. 187 Letschert, Staiger and Pemberton (n 105), 144-147, 161-162. 188 Maslow, Motivation and Personality, (n 169). 189 Ibid. The hierarchy of needs is shown in the pyramid inserted in Appendix 2. 28

new need that should be fulfilled so that the next need can be reached, i.e. gratification.190 However, his initial analysis can be criticized by the fact that he infers that a person completes one need before achieving another while it is not entirely true according to McLeod.191 Two different levels of needs can be satisfied at the same time or some individuals might consider that one need is more important than a need deemed lower in the pyramid.192 For instance, the need for food can also be fulfilled at the same time as the need for love, thus levels one and two can be achieved at the same time contrary to what Maslow initially wrote.

Both Maslow and McLeod emphasize that to achieve the highest level of needs, i.e. self- actualization, an individual must have fulfilled the needs from the inferior levels of the pyramid. Moreover, Maslow’s hierarchy of needs is a general guideline for a person’s needs. Letschert and colleagues, on the other hand, deal with the needs of victims of terrorism. When considering victims of terrorism and their needs, one needs to keep in mind the goals of terrorism (i.e. to terrorize a population, and cause bodily, mental, and economical harm) to counter the effects of terrorism. Letschert and colleagues mention nine needs for direct and indirect victims: 1) immediate emergency assistance; 2) recognition and respect; 3) information; 4) participation; 5) acknowledgment; 6) material compensation; 7) security; 8) feelings of anxiety and loss; and 9) anger due to losses caused by the attack, retribution, and forgiveness.193 When Letschert and colleagues’ needs are put in parallel with Maslow’s pyramid, need 1 (immediate emergency assistance) corresponds to a physiological need, need 7 (security) corresponds to safety needs, needs 2 and 5 (respectively recognition and respect and acknowledgment) corresponds to belongingness and love needs, needs 3, 4, 6 and 8 (respectively information, participation, material compensation and feelings of anxiety and loss) correspond to esteem needs, and need 9 (anger, retribution and forgiveness) corresponds to self-fulfillment needs. Other authors have identified the same needs as Letschert and colleagues but mention them as rights. Such is the case for Fernandez de Casadevante Romani who also identifies the right to truth and the right to memory.194 The latter right allows reparations to victims and reinforces the fact that victims of terrorism ‘regain the humanity of all victims; all of them innocent and unfairly victimized’.195 When put into parallel with Maslow’s hierarchy of needs, the rights to truth and to memory would allow a victim to fulfil the fourth need, i.e. the needs pertaining to one’s esteem.

3.2.2. Needs of the victims of the Paris attacks

Maslow, McLoed, Letschert and colleagues and Fernandez de Casadevante Romani have identified victims’ needs and rights which were identified in the chapter above. They range from basic immediate psychological needs to needs of truth, recognition and memory that would be

190 Maslow, ‘Some Theoretical Consequences’ (n 168). 191 Saul McLeod, Maslow’s hierarchy of needs (2007, updated 2014), Simply Psychology. 192 Maslow, Motivation and Personality, (n 169), 51. 193 Letschert, Staiger, and Pemberton (n 105), 144-147. 194 Ibid 144-147; Fernandez de Casadevante Romani (n 171), 87, 224, 240. 195 Cuesta Cristina, Contra el olvido (ed. Temas de Hoy, Madrid 2000), 221 in Fernandez de Casadevante Romani (n 171), 241. 29

raised in the days or months following a terrorist attack. In the case of the Paris attacks, the application of these needs are as follows:

Immediate emergency assistance is literally ‘a life or death matter for many victims of terrorism’.196 In the minutes following the Paris attacks, people were treated by firefighters at the cafés and restaurants that had been hit. Nevertheless, to face mass casualties, there is a need for advanced disaster planning (i.e. drills in hospitals, schools, and work offices). There is also a need for psychological assistance. This is indispensable for victims to recover from their victimization according to David Alexander.197 He states that the earlier mental health advisers reach victims, the quicker it is for them to start recovering from traumatic events.

Recognition and respectful treatment by both the government and society can be identified.198 This entails that victims’ victimization stories are believed by others and perceived as true by their peers. Recognition can be reflected by their names being added to a list of victims of terrorism. They can also be the subject of symbolic measures such as receiving a medal of honor and the exoneration of medical and tuition fees, In addition, the French State can adopt the children of the victims of terrorist attacks, making them pupille de la Nation (Wards of the State).199 They will benefit from financial aid, including the levy of tuition fees.200 Fifty children have already become wards of the State.201 Furthermore, victims should have the option to participate in criminal justice procedures. This would be proof of respectful treatment by the State. One of the survivors of Mohamed Merah’s 2012 attack testified during the trial of Abdelkader Merah and Fettah Malki. He stated the importance of the trial to show that such a crime would not be left unpunished.202 However, some people have used the attacks for their financial gain by passing themselves off as victims of the attacks.203 This could be considered hurtful for victims who were present and struggle to get compensation from the State. Furthermore, it also makes authorities more suspicious of claims from real victims who will have to bring as much evidence as possible to prove that they were present at the locations of the attacks, undermining the recognition they need.

Information on the advancement of the criminal justice procedure, on compensation, on the existence of support groups, as well as on the whereabouts of family and friends is also a need of victims.204 Brewin recommended giving victims all the information they need right after their victimization so that the victim can choose when to seek help from mental health advisers

196 Letschert, Staiger and Pemberton (n 105), 144. 197 David Alexander, Early mental health intervention after disasters (2005), Advances in Psychiatric Treatment 11(1) 12-18. 198 Letschert, Staiger and Pemberton (n 105), 144. 199 Pietrasanta (n 4), II 983; Décret n°2016-949 du 12 juillet 2016 portant création d’une médaille nationale reconnaissance aux victimes de terrorisme, JORF 0162 (13 July 2016). 200 Gouvernement.fr, Actes terroristes : les enfants des victimes peuvent devenir pupilles de la Nation (30 November 2015). 201 Ibid. 202 HuffPost and AFP, “Abdelkader Merah : Les six moments marquants du procès, dont le verdict est attendu ce jeudi’’ (Huffington Post, 01 November 2017). 203 FGTI Press Release (n 93). 204 Letschert, Staiger and Pemberton (n 105), 144. 30

(including what to expect in the following weeks of a traumatic event).205 This right to information is included in the 2012 EU Directive.206 The secrétariat d’État chargé de l’aide aux victimes (Secretary of State in charge of dealing with the aid for victims) fulfils this role and offers a single contact desk to victims for all their administrative paperwork to receive compensation or for medical bills.207 In addition, victims can choose what they want to be informed about. However, information is sometimes hard to find and barely reaches victims.208 To counteract this problem, authorities rely on social media to distribute information. For instance, the Facebook Safety check was completed by many on 13 November, to inform others that they were safe.209 The State places announcements on official Facebook pages about attacks and what to do during and after. They now make sure that the information they give regarding who to contact and where to go is correct and updated if it changes, as it was pointed out that this was not the case after the November 13 attacks.210 Victims associations should also be promoted through television, radio, and social media as they are one of the first things people turn to in times of crisis to stay informed.211 One limitation to this need for information is the role played by the media. After the January attacks, several media agencies were fined for having shared confidential information that put those who were hiding in danger.212 For instance, several news channels reported live that there were people hiding in the freezer of the Hypercacher while the terrorist was still in the store and could kill those who were in the freezer.213

Victim participation in criminal proceedings is also a need for victims. This was the case in the Merah trial with victims participating as parties civiles following article 418 and following of the French Criminal Procedural Code and allowed some of them to express how their lives changed.214 However, two limits must be noted. First, participation in the criminal trial can be limited due to the risk of secondary victimization and to the fact that some victims do not live in the country where the trial is being held. Secondly, if a victim is part of the partie civile, s/he is no longer considered a witness. In the case that s/he wishes to testify as a witness, s/he lose her or his claim to the partie civile.215 Participation can also be extended to measures outside the justice system such as support groups.

205 Chris Brewin, Cognitive and emotional reactions to traumatic events: Implications for short-term intervention (2001) 17(3) Advances in Mind-Body Medicine 163-168 [Abstract]; cited in Richard McNally, Richard Bryant, and Anke Ehlers, Does Early Psychological Intervention Promote Recovery from Posttraumatic Stress? (2003) 4(2) Psychological Science in the Public Interest 45-79. 206 2012 EU Directive (n 135), Art. 1, 21. 207 Pietrasanta (n 4), II 974. 208 Ibid 973. 209 Peppe Cavallari, ‘Safety Check: réseaux numériques et sentiment de sécurité’ (2015), Sens Public. Being in Paris at the time and knowing that most of my friends were out that night, it was a relief to see that most of them did the Facebook check. It also allowed family outside of Paris and of France to see that we were safe. 210 Pietrasanta (n 4), II 971. 211 Ibid 119. 212 Pietrasanta (n 4), II 163. 213 Ibid, 483. 214 Art. 418-426 Code de procédure pénale (n 81); HuffPost and AFP (n 202). 215 Art. 422 Code de procédure pénale (n 81). 31

Acknowledgment of victimization entails the recognition that they were targeted because they belonged to a specific group. Applied to the Paris attacks, acknowledgment of victimization was related to the fact that the Western way of life was targeted, i.e. going out to bars, restaurants, concerts.

Material compensation is an important need that the Government should tackle since some insurance policies do not cover terrorist attacks. International, regional, and national legal instruments like the Van Boven Principles recognize this right.216 France has the FGTI to tackle this need. However, the State should ensure that those who suffer economic loss due to the attacks are compensated since these fall outside the scope of the FGTI at this moment. Since 1986, victims of terrorism can seek reparation from FGTI.217 It was initially meant for victims of terrorism and would allow them to seek reparations. The application process is easy: victims who have filed a police report are automatically added to the list of beneficiaries. Others must fill out a form and provide proof that they were present at the location of the terrorist attack. The nationality of the victim is irrelevant if the attack occurred in France. This is in conformity with the Cowan decision of 1989 where France was condemned for not compensating a foreigner who had been a victim of theft in France.218 Moreover, if a French national is a victim of terrorism abroad, s/he is still eligible to seek reparations from the Fund.219 When comparing the FGTI to funds from other European countries that have specific provisions for victims of terrorism (Greece, Spain, and Italy), one can notice a few differences (see Annex 3 for a comparison between the funds from the countries mentioned above). For instance, the FGTI is only available to direct victims or to families of those deceased. They are entitled to compensation for loss of wages while the Italian Fund can cover medical care and grants and advance payment to cover expenses that occur during the process and the Greek Fund can award certain preferences such as educational benefits. Conversely, property damage (i.e. destruction of a building, apartment) is not covered by the FGTI while Spain covers damages to property. In compensating victims of terrorism, the FGTI supplements the duty of an offender to repair his or her victim but ensures that the right to reparation for victims is respected. It does not prevent a victim from filing a complaint and starting proceedings before a judge.220 The FGTI receives its funding from a levy on property insurance policies.221 Thus, the FGTI is based on a solidarity principle whereby every insured French citizen contributes to its funding. Finally, victim associations have been involved in the process of the FGTI, by helping victims apply for compensation from the latter.222 By 1 November 2017, the FGTI had

216 1985 UN Declaration (n 123), Art. 12-13; Van Boven Principles (n 51), Art. 20; CoE 1983 Convention on Compensation (n 151), Art. 2. 217 Guarantee Fund for victims of terrorism and other criminal acts; L. n° 86-1020 (n 61), Art. 9. 218 Case 186/87 Cowan v Le Trésor Public [1989], ECR 195. A British citizen sought compensation from the French Commission d’indemnisation des victims d’infractions after falling victim to a violent attack in Paris where he sustained physical injuries. The French Government denied his applications stating he was not a French citizen and thus was not eligible to file a claim before the Commission. He invoked the principle of non-discrimination of article 7 of the ECC before the ECJ. The Court found that France had violated this principle and urged the French Government to compensate the claimant. 219 Loi n° 86-1020 (n 61), Art. 9, I. 220 Ibid Art. 9, III. 221 Ibid Art. 9, II. 222 Letschert, Staiger and Pemberton (n 105), 271. 32

assisted 2579 victims of 42 different nationalities of the Paris attacks. This number includes 758 people who lost someone, 576 people who were physically wounded, and 1128 who were psychologically injured.223 Compensation and rehabilitation are not the only measures implemented as reparations for victims. Symbolic measures were also taken. For instance, a national medal was awarded to victims of terrorist attacks.224 Commemoration ceremonies were also held on the anniversary of the attacks.

The need for security consists of making sure that the victims feel safe from another attack. Victims who found shelter in the nearby restaurants were reassured when they saw armed military men coming to their location on 13 November 2015.225 Moreover, security measures taken by the Government after the attacks under the state of emergency provisions were also meant to fill this need by increasing the security measures to grant access to public buildings such as university buildings, shopping malls, theaters, and concert halls.226 However, the measures taken by the Government can lead victims to feel more unsafe by the presence of armed men in places where they would not be present had there been no terrorist attack. These feelings of insecurity can be interpreted as a reminder of the risk of a future attack.227

Feelings of anxiety and loss need to be attended to as they can result in the development of PTSD.228 Alain Brunet, a psychiatrist and researcher, has developed a pill that is being tested on victims of terrorist attacks in France.229 This pill is based on propranolol, a chemical known to reduce stress, anxiety, and fear, and is taken by victims before a test session where they talk about their victimization. It allows the patient to diminish the impact of the events, and it can thus reduce the victim’s feelings of anxiety. It is meant to turn the experience of the attacks into a bad memory and to allow victims to get back to their lives without feeling scared. One patient testified about the effects of the pills on him.230 He mainly mentions that the pill changed something inside him. Although, his experience could be described as positive, it cannot be generalized because the pill’s efficiency is still being studied and it is only the experience of one person.

Feelings of anger and retribution also need to be considered as they can determine victims’ reactions after a terrorist attack. Victims will want to know why the attacks happened, who did it and what could have been done to prevent the attacks. Governments need to take all the measures necessary to deter victims from taking justice into their own hands. They can

223 FGTI Press Release (n 93). 224 Décret n° 2016-949 (n 199). 225 Pietrasanta (n 4), II 250. 226 Letschert, Staiger and Pemberton (n 105), 146. 227 Ibid. 228 Ibid. 229 Elodie Lepage, ‘Attentats de Paris et Nice : une pilule pour soigner la mémoire des victimes’ (L’observateur, 14 September 2017). 230 Nick Miller, ‘Escaping the dark: Helping terror attack victims with post-traumatic stress’ (The Sydney Morning Herald, 24 August 2017). 33

adopt new laws providing for harsher punishments for terrorists, prosecuting those who aid and abet terrorists.

Nevertheless, one needs to keep in mind that terrorism, by definition, targets a larger group of victims which in turn means that vicarious victims also have needs.

3.3. Needs of vicarious victims

Studies carried out after 9/11 are the perfect example showing that terrorism affects more than primary and secondary victims.231 Galea and colleagues found that vicarious victims also showed signs of PTSD although they did not know any of the many victims of the 9/11 terrorist attacks, nor were they present around ground zero. They reported that 6 months after 9/11, one third of the persons who met the criteria for probable PTSD were not directly affected by the attacks. They considered that those who were directly involved in 9/11 “were in the World Trade Center complex during the attacks, were injured during the attacks, lost possessions or property, had a friend or a relative killed, lost a job because of the attacks, or were involved in the rescue efforts”.232 This means that terrorist attacks do affect a larger group than the one who suffers direct harm. It also highlights the need for mental health plans following terrorist attacks to take into consideration the treatment of people who were not directly impacted by the attacks, but still suffered psychologically from them. Wayment explains this trend by the fact that vicarious victims can identify with direct victims through similar traits (for example they share the same job field, the same age).233

Letschert and colleagues have also listed needs for vicarious victims which follow existing literature on those victims. Firstly, feelings of anxiety should be dealt with as soon as possible to have fewer vicarious victims. In the minutes following a terrorist attack, people who were not there try to find out the whereabouts of others. Using social media and the Facebook Safety Check reduces such feelings for example and allows a decrease in the “worrying well” effect caused by terrorism, i.e. people who were not directly involved in the attack would still seek treatment because they fear the attack.234 Later on, mental health practitioners or teachers who should be trained to recognize these feelings also play a role in decreasing anxiety.235 Governments are also responsible for these feelings through their constant reminders of a possible threat. Nevertheless, feeling prepared by having more drills, being trained in First Aid, and knowing what to do in case of an attack may help reduce these feelings.236 In addition, the Government should encourage its citizens to wait for instructions if there is another attack instead of immediately panicking and fleeing, which could cause more victims. Boscarino and colleagues examined responses to further attacks in New York and indicated that a significant number of interviewees would take measures without checking instructions from authorities or

231 Sandro Galea and colleagues (n 179). 232 Ibid 516. 233 Wayment (n 180). 234 Letschert, Staiger and Pemberton (n 105), 152; 161. 235 Ibid 161; Alexander (n 197). 236 Pietrasanta (n 4), I 100. 34

the State.237 However, the results of their study cannot be generalized as no one really knows how they would react when facing a terrorist attack: would they try to rescue people, stop the perpetrators, or try to hide?

Anger, retribution, and forgiveness are common reactions after a terrorist attack.238 Governments need to differentiate terrorists from other groups to avoid any retribution-taking from victims against other groups. After 9/11, policy makers had to strike a balance between their country’s values of acceptance of various cultures with immigration and the need for public safety.239 For instance, Islamophobia rose after the Paris attacks, reflecting feelings of anger and retribution.240 The Government should ensure that people who carry out such acts are prosecuted, but it should also remind the population not to associate Muslims with ISIS.

Although not mentioned by Letschert and colleagues, another need for vicarious victims could emerge: the trust in the State and how it deals with victims of terrorism. Terrorism can target anyone, which means that anyone can become a victim. With media attention, people see what measures are put into place to treat victims as well as what the Government is doing to deal with victimization. For instance, some changes have been made to the organization of governmental support for victims of terrorism. Many victims have criticized the suppression of the Secretary of State in charge of dealing with aid for victims. This body was constantly available to victims and knew about their situation.241 Seeing this may lead people to question the way the Government is treating victims and whether it acknowledges them and treats them with respect. Moreover, as terrorism causes vicarious victimization through primary and secondary victims, States need to ensure that the mental health plans implemented after an attack take all types of victims into consideration. Moreover, a good way for States to know where they stand on prevention, prosecution and fighting terrorism is to publish reports after carrying out a thorough investigation. This parallels what Fernandez de Casadevante Romani says about the victims’ right to truth.242 Knowing who is responsible for a terrorist attack and what happened to the victims would help bring peace and order back in societies and thus start a healing process. France has published several reports regarding radicalization as well as measures put into place since January 2015 allowing an evaluation of the efficiency of the measures that were in place at the time. It also allows lawmakers to see what the legislation lacks and what needs to be done to fill these gaps.

237 Joseph Boscarino, Charles Figley, and Richard Adams, Fear of Terrorism in New York After the September 11 Terrorist Attacks: Implications for Emergency Mental Health and Preparedness (2003) 5(4) Int J Emerg Ment Health, 199-209. 238 Letschert, Staiger and Pemberton (n 105), 162-163. 239 Victoria Esses, John Dovidio, Gordon Hodson, Public Attitudes Toward Immigration in the United States and Canada in Response to the September 11, 2001 “Attack on America” (2002) 2(1) ASAP 69- 85 240 HRWR (n 186) 2016, 247, 251 ; HRWR (n 186) 2017, 259 ; HRWR (n 186) 2018, 215. 241 Le Monde.fr and AFP, ‘Deux ans après, la France rend hommage aux victimes du 13-Novembre’ (Le Monde, 13 November 2017). 242 Fernandez de Casadevante Romani (n 171), 224. 35

4. Measures after the November 2015 attacks: an evaluation

Since 2015, France has started to prosecute people linked to the newest face of terrorism, mainly people who have been returning from Syria and who were planning to commit terrorist attacks. Bigger trials started in 2017 where accomplices are tried for aiding in committing a terrorist attack, namely the cases of Abdelkader Merah and Fettah Malki, and of Jawad Bendaoud who was accused of harboring terrorists.

4.1. The fight against terrorism in France since 2015

Throughout time, legislation regarding terrorism has evolved. It had to adapt to the evaluation of the crime of terrorism and ensure that other forms of terrorist acts would be prosecuted. After the attacks of 2015, harsher measures were taken in France, notably with the reinstatement of the French state of emergency law which allows public authorities to have more power.243 The state of emergency puts a specific regime of law into place where civil authorities see their powers increased and civil liberties can be restricted when there is a well- established threat to public safety.244 It was extended six times by the French Parliament since November 2015 and ended on 1 November 2017 with the entry into force of the 2017 law on terrorism. 245

4.1.1. The 2017 Law on Homeland Security and the fight against terrorism

The 2017 law on Homeland Security and the fight against terrorism is the newest French piece of legislation. It created the following offence: it is unlawful for a person, with authority over a minor, to make the minor participate in acts of terrorism, or the preparation of an act.246 This means that if B, a minor, participated in a terrorist act because of A, who exercised his authority over B, A can be prosecuted under the new 2017 law. In addition, promoting international cooperation to fight terrorism is a necessary step to eradicate the problem of fighters travelling across borders to recruit, prepare, and train so that they can commit attacks. European and international legal instruments have acknowledged this necessity and encouraged countries to follow this lead. Thus, France has continued to change its legislation regarding the prosecution and prevention of terrorism to be in accordance with European and international standards. At the same time, in order to meet the needs of victims and keep up with the evolution of terrorism, domestic, European, and international legal instruments will continue to be reformed. Furthermore, the Paris attacks oversaw the creation of several victim organizations such as 13 novembre: Fraternité et Vérité (13 November: Fraternity and Truth) or Life for Paris-13 novembre 2015. These associations wanted to constitute themselves as parties civiles under article 2-5 of the French Criminal Procedural Code which requires an

243 Loi n° 55-385 du 3 avril 1955 instituant un état d’urgence et en déclarant l’application en Algérie, JOFR 0085 of 7 April 1955, 3479. 244 Vie Publique, ‘État d’urgence et autres régimes d’exception’ (updated 13 November 2017). 245 Loi n° 2017-1510 (n 167). 246 Ibid Art. 9; Art. 421-2-4-1 Code Pénal (n 9). 36

association to exist for at least 5 years to enter proceedings as a partie civile. However, an amendment struck down this time-limit for those associations.247

Another aspect of the law on Homeland Security and the fight against terrorism comprises some of the special provisions of the state of emergency which have now become ordinary law. These provisions authorize mayors and police commissioners to adopt stricter security measures.248 They are authorized to install a security perimeter around a threatened establishment, such as malls or stadiums. In addition, people who wish to enter these establishments can be subjected to security checks such as bag searches and being patted down which is also part of the Plan Vigipirate: sécurité renforcée Risque d’attentat (Vigipirate plan: reinforced security Threat of a terrorist attack).249 The time limit for such decisions is one month but can be extended if the threat persists.250

Religious establishments that promote or provoke terrorist acts or its ideology can be closed by administrative decisions taken by mayors or commissioners.251 However, the concerned party has 48 hours to challenge this decision. If the decision is final, the closure of the establishment cannot exceed 6 months.

Persons suspected of having ties to terrorism or praising terrorist ideology can be subjected to restrictive measures regarding their freedom to travel and may have to appear before a police officer or a judge at regular intervals.252 They may also be forced to wear an electronic monitor as a means of surveillance and also be barred from associating with others who are suspected of sharing the same ideologies. These administrative measures are applicable for a limited time-period that goes from 4 months regarding the prohibition of association to 12 months regarding the freedom to travel. In the case of search warrants, the legal time to exercise one is from 06:00 to 21:00 and it must be carried out either in the presence of the person concerned, the presence of a guardian/representative (of a minor), or two witnesses that are not representatives of the State.253 Automatic processing of personal data is authorized for use of the Passenger Name Record (PNR) in preventing travelling for terrorism.254 In addition, radio data surveillance is authorized for persons suspected of terrorist affiliations255 as well as identity checks of cross-border passengers.256 This security check can be put into place in airports, train stations, bus stations and even on highways. When in police custody, a person has the right to notify any person of his or her choice, to understand and be understood, and

247 Loi n° 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale (1), NOR: JUSD1532276L, art. 15. 248 Loi n° 2017-1510 (n 167), Art. 1, I. 249 Vie Publique, Sécurité : l’adaptation du plan Vigipirate à la menace terroriste (9 December 2016). 250 Loi n° 2017-1510 (n 167), Art. 1, I. 251 Loi n° 2017-1510 (n 167), Art. 2. 252 Ibid Art. 3. 253 Ibid Art. 4. 254 Ibid Art. 13-14. 255 Ibid Art. 15. 256 Ibid Art. 19. 37

to remain silent. However, these restrictive measures have been criticized for violating fundamental rights by Human Rights Reports.257

In parallel to the 2017 law on reinforcing Homeland security and the fight against terrorism, trials of terrorists and their accomplices have started.

4.1.2. New trials concerning jihadist terrorism

The first case was that of Abdelkader Merah, Mohamed Merah’s brother, who was sentenced, at first instance, to 20 years in prison for having aided his brother in stealing the scooter he used during his killing spree in Toulouse in March 2012.258 The Merah trial was kept open to the public but the judge presiding over the case did not allow the filming of the trial which impacts future research on radicalization.259 The 1985 Badinter Law authorizes the filming of criminal trials if ‘cet enregistrement présente un intérêt pour la constitution d’archives historiques de la justice’ (this recording is of interest for the establishment of historical records of justice).260 It sparks the debate of allowing these trials to be filmed due to the specific nature of the crime. However, it allows victims and their families to raise awareness to the problem of this new face of terrorism that seduces troubled and/or lost youth as well as well integrated people. I consider the fact that these trials are open to the public very important. It allows us to be more aware of what is happening to our society and may also bring closure to some victims. As stated previously, terrorism has repercussions beyond the direct and indirect victims.261 The point of terrorism is to induce fear in a population, hence a large group of people, not just a targeted group of people in general.262 Having trials open to the public allows awareness of the problem, educating future lawyers about the process of such crimes and finally allows some form of closure. Still, when making these trials public, victims and their families should be consulted and give their consent. Victims do not process a traumatic event in a similar manner and some may not want to be the center of attention once more.263 Furthermore, their right to privacy is necessary in the case of terrorism and if they wish to remain outside of the media frenzy, their wish must be respected.

In addition to the trial regarding the 2012 terrorist attacks, the Parisian court competent to hear cases regarding jihadist crimes have begun hearing cases involving the November 2015 Paris attacks. Most notably is the case of Jawad Bendaoud, who was prosecuted for harboring terrorists of the November attacks pursuant to article 434-6 of the French Criminal Code.264 He

257 HRW Reports (n 186). 258 Cour d’assises de Paris, 2 novembre 2017 (n 88). 259 Patricia Cotti (Professor at the University of Strasbourg), Isabelle de Mecquenem (Professor at the University of Reims Champagne Ardennes), and Céline Masson (Professor at the University of Picardie Jules Verne), ‘A l’attention de Maître Olivier Morice, avocat à la cour’ (Paris, 27 September 2017). 260 Loi n°85-699 du 11 juillet 1985 tendant à la constitution d’archives audiovisuelles de la Justice, JORF du 12 juillet 1985, 7865. 261 Schmid (n 6). 262 Ibid. 263 Letschert, Staiger and Pemberton (n 105), 143. 264 Julien Mucchielli, ‘Les foucades de Jawad et la solitude d’un frère’ (Dalloz actualité, 26 January 2018); Art. 434-6 Code Pénal (n 9). 38

was tried with two other men: Mohamed Soumah and Youssef Ait Boulahcen. Jawad Bendaoud was acquitted of these charges because the element of proof could not establish that he knew that he was harboring terrorists responsible for the 13 November attacks.265 The other two men who were on trial with him were found guilty of the charges of harboring a terrorist (Mohamed Soumah) and of non-denunciation of a terrorist (Youssef Ait Boulahcen).266 This decision is particular as it was the first case that tried people involved with the 13 November attacks. The three men were prosecuted for being linked to the terrorist commando who died in the shoot-out of 18 November 2015 in Saint-Denis.267 Moreover, this decision should serve as an example for future cases involving terrorism and terrorist attacks, mainly for judges who need to stay as objective as possible and not sentence a defendant just to please society. This was pointed out by French lawyer Daniel Soulez Larivière, who deals with grand catastrophes, regarding the Merah trial.268 He states that criminal trials do more harm than good for victims and their families whose grief is delayed or even frozen while waiting for a trial date. This frozen grief argument is also mentioned by a survivor of the Bataclan in an interview regarding the decision against Jawad Bendaoud.269 He points out that the Jawad Bendaoud decision shows the world that France managed to keep its image of a country that respects the Rule of Law and the judge’s ruling on the case did not let the public opinion get to her, which is something that Soulez Larivière also points out as a difficulty with the participation of a partie civile in a trial.270

The 2017 law on reinforcing Homeland Security and the fight against terrorism corresponds to the need to adapt French legislation to the newer face of terrorism that was put forward in the 2016 parliamentary report on all the measures put into place since 7 January 2015.271

4.2. An evaluation of the measures in place to fight terrorism

4.2.1. The effectiveness of the legal measures in place in France regarding terrorism seen by lawmakers

A 2015 parliamentary report comprises interviews from governmental officials, members of police and military forces, medical staff and of victim associations who relate their experiences on how the French Government dealt with the rise of Islamic terrorism and the aftermath of the terrorist attacks. The parliamentary report is used to ascertain the efficiency of the legal measures put into place regarding the fight against terrorism. There have been 348 proceedings brought before the Parisian court that is competent to hear terrorism cases; 263

265 Association de la Presse Judiciaire (n 92); Association française des Victimes du Terrorisme [French Association of Victims of Terrorism], ‘Compte-rendu des audiences du procès de Jawad Bendaoud, Mohamed Soumah & Youssef Ait-Boulahcen 24/01/2018 au 14/02/2018’, 193. 266 Ibid, 190, 192. 267 Ibid 189-193. 268 Daniel Soulez Larivière, ‘L’affaire Merah et l’existence des parties civiles’ (Dalloz Actualité, 7 November 2017). 269 Emmanuel Domenach in Timothée Vilars (reporter for l’Obs), “Emmanuel Domenach: “Le procès Jawad Bendaoud me rassure pour le futur procès du 13-Novembre’’ ‘’ (L’Obs, 15 February 2018). 270 Ibid; Soulez Larivière (n 268). 271 Pietrasanta (n 4), I & II. 39

of these proceedings concerned jihadist networks between 2012 and 30 April 2016.272 Most cases dealt with criminal association in relation to a terrorist undertaking.273 A difference is drawn within this offence between a tortious offence and a criminal offence. The criminal offence is better suited for those who have gone to Syria and Iraq to fight for ISIS while the tortious offence would be for those who organize the network.274 This differentiation leads to different sanctions, the tortious offence having a maximum 10-year prison sentence while the criminal offence is punished by a maximum of 20 years in prison. In addition, judges have been reluctant to use some offences, namely article 421-2-6 of the French criminal code regarding the terrorist offence involving an individual undertaking the preparation of terrorist acts.275 On the other hand, the implementation of article 421-2-5 of the French Criminal Code, dealing with the promotion and provocation of terrorism, sky-rocketed in January and November 2015 following the respective terrorist attacks.276

Moreover, the 2014 French law reinforcing the fight against terrorism put a series of administrative measures into place regarding the prevention of terrorism with barring orders from leaving and entering France, as well as enforcing a housing restriction to people who pose a threat to public order.277 People who return from combat zones in Syria and Iraq can also be subjected to surveillance if they pose a threat to national security following the 2016 French Law reinforcing the fight against organized crime, terrorism and their funding.278 Then, the state of emergency put into place following the Paris attacks allowed to destabilize terrorist networks in the days following the attacks.279 However, the element of surprise soon diminished for the networks and the searches carried out had more benefits for gathering intelligence on the networks.280 Moreover, Human Rights NGOs such as Amnesty International and Human Rights Watch have vividly criticized France for the implementation and duration of the state of emergency and for the measures that the laws comprised regarding the restriction of movement of individuals.281

In addition, international and European cooperation is necessary to prevent future attacks. European countries should rely on EUROJUST which was created to allow coordination between States to investigate and prosecute cross-border crimes.282 This is crucial because terrorists travel through Europe before committing their acts and leave traces in countries. During the investigations following the attacks in Paris, authorities discovered that the commandos had passed through Greece using fake passports to later enter France.283 They

272 Pietrasanta (n 4), I 195. 273 Ibid 200. 274 Ibid 201. 275 Ibid 202. 276 Ibid 203. 277 Loi n° 2014-1353 (n 102). 278 Loi n° 2016-731 (n 247). 279 Pietrasanta (n 4), I 263. 280 Ibid 264. 281 Amnesty International Report 2015/2016, 46, 158-161 ; Amnesty International Report 2016/2017, 160-162 ; HRWR (n 186) 2016, 251 ; HRWR (n 186) 2017, 267. 282 Pietrasanta (n 4), I 287. 283 Ibid 286-287. 40

do so by relying on the freedom of movement provided by the 1990 Schengen Convention as well as the ECHR that allows fewer identity checks at border crossings.284 However, French authorities want to develop more Passenger Name Record (PNR) measures that would allow airlines to see if passengers are barred from entering or leaving a country.285 These PNR measures are also applicable to maritime transportation.286 These PNR measures would allow authorities to be aware of potential terrorists’ movements as well as the movements of returning foreign fighters and could lead to preventing future terrorist attacks.

4.2.2. The effectiveness of the measures put into place after the 2015 attacks seen by the victim associations and first responders

The 2015 parliamentary report mentioned above also contains interviews from various representatives of victim associations, medical, police and military staff as well as Ministers in office at the time of the Paris attacks.287 It deals with the numerous experiences of the Paris attacks and offers a practical point of view on how the events were lived by people directly affected by the attacks. It also enables the identification of gaps within the system.

First representatives of victim associations were heard and identified several problems. They raised awareness of the fact that families did not receive the information they needed regarding their relatives who were present at the targeted locations. Furthermore, the way they were notified of the death of their relative was inappropriate.288 Victims have also mentioned that having different contacts when looking to treat their psychological needs rendered this task more difficult.289 The lack of training of the professionals who were in contact with them was also highlighted.290 EU Directive 2012/29/EU makes this training a minimum standard and Member States should implement this.291 France’s compliance to the 2012 EU Directive includes having to train all professionals, i.e. judges, lawyers, police officers, and the staff that answers the phones of a crisis center that come into contact with victims. This reflects the needs of immediate emergency assistance, of recognition and respectful treatment, and of information as presented in chapter 3.2.2. Following the Paris attacks, victims encountered police officers who received their complaint. Besides, they came in contact with staff of crisis centers who informed them of the whereabouts of loved ones that were at the targeted locations. Once the complaint is received, victims will have to face lawyers and judges who need to be trained and sensitized to victims’ needs for information and respect. Having to

284 Convention from 19 June 1990 applying the Schengen agreement of 14 June 1985 between the Governments of the States of the BENELUX Economic Union, the Federal Republic of Germany and the French Republic, on the gradual abolition of checks at their common borders (1990); European Convention on Human Rights, Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto, Art. 2. 285 Pietrasanta (n 4), I 297. 286 Loi n° 2017-1510 (n 167), Art. 14. 287 Pietrasanta (n 4), II. 288 Ibid 11. 289 Ibid. 290 Pietrasanta (n 4), II 11. 291 2012 EU Directive (n 135), Art. 25. 41

testify may be hard for victims, especially if the professionals are not trained to prevent secondary victimization due to a trial.

The Government should not underestimate the need for information on prevention and preparedness during terrorist attacks. For instance, Latifa Ibn Ziaten and Dounia Bouzar have taken on the project of talking to youth at risk for radicalization.292 The first is the mother of one of Mohamed Merah’s victims and Dounia Bouzar is an anthropologist. Both highlight the importance of raising awareness of radicalization. Their initiative is worth replicating at a larger scale to fight terrorism. Other countries, like Denmark, have used mentors to help individuals in their process of deradicalization.293 It would seem logical that to put an end to a problem, one needs to understand its origins. Informing the population of signs of radicalization and knowing how to deal with people in danger of radicalization may help decrease the number of radicalized individuals, and thus would decrease the risk of future terrorist attacks.

Another need for victims which was mentioned in chapter 3.2.2 was the right to participation. In France, victims as well as victim associations can take part in a criminal trial as a partie civile. However, for victim associations to do this, French law required five years of existence for these associations.294 This was an issue for the victim associations created after the Paris attacks as this time-requirement was not fulfilled when they wanted to start legal proceedings.295 To counter this problem, French legislators changed this five-year criterion to a two years.296

Difficulties in giving and receiving information due to multiple contacts has been underlined by several relatives. Having a unique interlocutor would facilitate the situation for victims, especially for those who work.297 On 16 January 2018, Elisabeth Pelsez announced the inauguration of a new victim support office meant for victim support (legal, psychological, and social aid) that is aimed at solving this problem.298 Victims would need only to go there for all their administrative proceedings.

Similarly, the lack of preparation from the people they were in contact with led victims to feel no empathy from the people they encountered directly after the attacks.299 The chaotic situation also led to misdiagnoses of some of those injured. One woman appeared to have abrasions while she had a bullet lodged in one of her lungs.300 The identification of some of the people who died also lacked tact: some families were contacted multiple times and had to give details on specific physical attributes of family members to confirm their identification.301 This

292 Ibid. 293 Mennucci (n 73), 119-120. 294 Art. 2-9, 2-15 Code de procédure pénale (n 81). 295 Ibid; Mennucci (n 73), 119-120. 296 Loi n° 2016-731 (n 247), Art. 15. 297 Pietrasanta (n 4), II 14. 298 Ministry of Justice Press Release, ‘Inauguration du nouvel espace d’information et d’accompagnement (EIA) des victimes d’acte(s) de terrorisme’ (16 January 2018). 299 Pietrasanta (n 4), II 18. 300 Ibid 21. 301 Ibid 22. 42

lack of tact and empathy could be solved with the training of staff as provided for by the 2012 EU Directive.302

Forgotten victims are also pointed out by Françoise Rudetzki: they are those who were present at the Stade de France or the inhabitants of the building in Saint-Denis which was raided during the investigation after the attacks. The latter cannot seek compensation from the FGTI because they are not considered victims of terrorism given that they were not injured during the attacks and/or did not lose any family during the attacks.303 Their victimization is the result of the raid carried out by the police on 18 November 2015, not due to the 13 November 2015 attacks. The inhabitants of the building that was raided report psychological trauma that impact their everyday lives and prevents them from working.304

Françoise Rudetzki also mentions the media’s role and the right to free press which was invoked in previous years to publish pictures of victims at the locations of a terrorist attack.305 However, in cases of terrorist attacks, the media should adopt a block-out situation whereby they do not release anything until the authorities give them authorization. Belgian media were asked to refrain from posting any information regarding police operations on 22 November 2015 and most media only posted pictures and videos of cats.306

The rest of the report focuses on the interviews of medical, military and police forces as well as Ministers in office at the time of the attacks. These interviews provide a timeline of the attacks and the measures implemented in the following hours and days.

The RAID (retro-acronym for Research, Assistance, Intervention and Dissuasion) representative gives an overview of the organization of this service and how the RAID forces were deployed the night of the November attacks.307 He states the fact that many police and military personnel were at the locations and worked together to exchange information, manpower, and equipment in order to protect their men as much as possible. Cooperation policy is also extended to the firemen and hospital staff.308 The firemen were first on the scene in Paris and dealt with victims as best as they could before the arrival of the SAMU (the French emergency medical personnel).309 Restaurants and cafés became impromptu triage rooms to assess the extent of casualties and the degree of urgency for the most seriously wounded physically.310 Medical staff in hospitals was supported by off-duty doctors and doctors coming from outside Paris. Even hospitals outside of Paris were ready to treat patients who were

302 2012 EU Directive (n 135), Art. 25. 303 Pietrasanta (n 4), II 32. 304 Association française des Victimes de Terrorisme (n 265), 94-96, 98-102. 305 Pietrasanta (n 4), II 33. 306 Caroline Wintgens, ‘Négocier les discours (in)sécuritaires au quotidien : le cas du #Brusselslockdown’, scientific colloquium and conference, 22 and 23 March 2017, Toulouse, France. 307 Pietrasanta (n 4), II 163. 308 Ibid 238. 309 Ibid 27. SAMU (Service d’aide médicale d’urgence) is the French emergency medical service. 310 Ibid 80. 43

redirected towards their services to ensure that the Parisian hospitals did not become overcrowded.311

Pietrasanta also reports that some of the staff also suffered psychological distress due to the attacks and from what they saw and heard.312 Therefore, the staff needs to be trained, which was also highlighted by Patrick Pelloux, an emergency doctor who promotes training for future doctors.313 This training should incorporate how to treat war injuries. By training staff, this could increase their feeling of readiness to face future terrorist attacks or other traumatic events that cause mass victimization. This was demonstrated by Arnetz and colleagues, where police cadets received complementary training in psychological and technical techniques to reduce anxiety during the exercise of their profession.314 Having a better trained staff also could impact how victims are treated immediately after a terrorist attack, thus answering a victim’s need for immediate emergency assistance, but also helping victims cope with feelings of anxiety and loss and decreasing their feelings of anger and retribution.

Most acknowledge the fact that they were not prepared to face this sort of attack that caused so many casualties. They lacked a unique system where all the victims were registered in the moments following the attacks. The Liste unique de victimes (LUV, Single List of Victims) was drawn up to fill this gap and is now the basis for the FGTI.315 It regroups all types of victims (deceased, wounded and under shocked) in a system but was still being completed in July 2016 as more victims were identified by the FGTI committee.316 However, the LUV only concerns direct victims.317 They are defined as those present at the targeted locations and who were directly exposed to the risk, i.e. victims who died, victims who were injured, and those who were in shock having witnessed the events.318 This leaves out indirect victims who are eligible for compensation before the FGTI.319 The FGTI directly contacts people on the LUV, or their ascendants and descendants if the person is deceased to inform them of their right to compensation. Inversely, people who consider themselves a victim can contact the fund but will have their claim investigated before any decision is made.320 As stated in chapter 3.2., some claimants to the Fund had not actually been victims of the attacks and had just filed a claim for their own financial gain. Nevertheless, having one’s name on the LUV and/or getting compensation from the FGTI not only answers victims’ need for compensation, but it also acknowledges their victimization.

311 Ibid 313-314. 312 Ibid 18. 313 Ibid 244-245. 314 Bengt Arnetz, Eamonn Arble, Lena Backman, Adam Lynch, and Ake Lublin, Assessment of a prevention program for work-related stress among urban police officers (2013) 86(1) Int Arch Occup Environ Health, 79-88. 315 Pietrasanta (n 4), II 116. 316 Ibid 475. 317 Ibid 977. 318 Ibid. 319 Ibid 978. 320 Ibid 979. 44

Although the report demonstrates that France still has some work to do regarding victims and the attention paid to them, it understands that the staff involved did what they could to face the events of 2015. The new Government, having dismantled the secretary specially created to deal with victims of terrorism, needs to ensure that its replacement will be as effective, if not more. If victims feel that they are being abandoned by the replacement office, it would undermine the trust others have in the Government.321 Furthermore, the Government, by adopting new legislation, causes human rights violations according to Human Rights NGOs, thus in turn questioning the constitutionality of the new measures adopted by the 2017 law on reinforcing Homeland Security.

4.3. Discussion

With the fight against terrorism, France has adopted measures that question their compatibility with human rights as well as with the French Constitution.

4.3.1. France already targeting minority groups before the Paris attacks

Larrère has already made a parallel between the evil laws that targeted a specific group (i.e. anarchists, whether they followed terrorism ideologies or not) and the situation in France in November 2015. The previous laws may have been repealed in 1992, almost 100 years after they were adopted, but similar measures were implemented once again in 2015.322 The Human Rights Watch World Reports from 2012 to 2018 indicate that France has restricted civil liberties and discriminated against specific minority groups.323 For instance, the 2012 report indicates that France had a policy, that year at least, to target Romani minority and forced them to leave land they had occupied for many years.324 The ECtHR found France in violation of article 8 of the ECHR, i.e. the right to respect for private and family life in its decision Winterstein and others.325 The fact that the applicants had to leave the land that they had occupied for many years impacted them ‘in so far as living in caravans formed an integral part of travelers’ identity and the case concerned the eviction of a community of close to one hundred individuals, with inevitable repercussions on their way of life and their social and family ties’.326 In 2016, the French Cour de Cassation (highest level of the judiciary) condemned French authorities for its identity checks based on ethnic profiling, finding that in this particular case, only people who presented minority traits were checked by police authorities.327 This shows that France has followed a pattern of discrimination against minority groups and has

321 13onze15 Fraternité-Vérité Press Release, Quel avenir pour l’aide aux victimes ? (25 May 2017). 322 Larrère (n 17). 323 HRWR (n 186) 2012, 445-446 ; HRWR (n 186) 2013, 426-429 ; HRWR (n 186) 2014, 437-439 ; HRWR (n 186) 2015, 234-235 ; HRWR (n 186) 2016, 251-253 ; HRWR (n 186) 2017, 265-268 ; HRWR (n 186) 2018, 218-220. 324 Ibid 2012, 445. 325 Winterstein and Others v. France, no. 27013/07, ECHR 2013. 326 Ibid. 327 Cour de cassation, 1ère Chambre civile, 9 novembre 2016, pourvoi n° 15-25.873. 45

not changed its ways, even though its national courts as well as the ECtHR have condemned the State for this policy.

Regarding the fight against terrorism, French legislation has also been pinpointed as violating basic human rights by NGOs.328

4.3.2. The normalization of an excess of power of the State with the 2017 Law

As terrorism evolved, so did French legislation to amend the judicial system to prosecute terrorists. After the Paris attacks, the state of emergency was put into place and lasted almost two years. The law that replaced it incorporates measures that allow the State to have more power to adopt security measures and quicken proceedings when terrorism is involved.329 However, it also implements measures that were specific to the state of emergency regime, hence allowing the State to adopt more restrictive measures that violate human rights. For example, mayors and commissioners are still authorized to install perimeters around specific establishments.330 Closing religious establishments suspected of promoting the ideology of terrorism is also a measure that has entered into ordinary law.331 Surveillance methods and the restrictions of freedoms and liberties are also still in place.332 Still these measures confer bigger powers to administrative authorities, which they would only have under the regime of the state of emergency. They were used in times of disasters, whether natural (i.e. floods) or man-made (i.e. terrorist attacks) and meant to prevent disorder in public policy when a chaotic situation occurs. The 2017 law now makes these measures ordinary measures, striking a blow at the balance between civil liberties and public authority and control.333 This means that public authorities could abuse their power since being able to adopt measures that only arise in times of chaos, indicates that the attacks resulted in changing everyday life for French citizens and that going back to a normal situation predating the November attacks seems unlikely. A question regarding the state of emergency which preceded the 2017 Homeland Security Law arises: was it successful in preventing terrorist attacks?

On 3 November 2017, the French Ministry of Homeland Security published the assessment of the state of emergency.334 The report acknowledges that the state of emergency measures prevented 32 attacks from happening, closed 19 religious establishments, ordered 754 house arrests, carried out 4 469 administrative search warrants which allowed 625 weapons to be seized. It also created positions in the intelligence gathering department. On 3 November 2017, measures of house arrests that were specific to the state of emergency were being

328 HRWR (n 186). 329 Loi n°2017-1510 (n 167). 330 Ibid Art. 1. 331 Ibid Art. 2. 332 Ibid Art. 3-4, 15. 333 K.R., Quels apports de la nouvelle loi renforçant la sécurité intérieure et la lutte contre le terrorisme ? (Dalloz-Etudiant, 17 November 2017). 334 Ministry of Homeland Security Press Release, Sortie de l’état d’urgence – Un bilan et des chiffres clés (3 November 2017). 46

implemented under the 2017 law. 335 For example, out of the 21 people who were placed under house arrest under the new provisions of the law, one is undergoing a conformity check before the Conseil d’État (French State Council) that will determine whether the house arrest measure is in conformity with the Constitution.336 Correspondingly, the mayor of Lille implemented a security perimeter on train platforms for a month.337 This measure would reflect the attempted attack on the Thalys on 21 August 2015 and the fact that Lille is close to the Belgian border. Thus, by implementing these security measures, the mayor intended to prevent future attacks and maybe the travel of individuals who are under house arrest or a ban of travel.338

Finally, to ensure that the State does not abuse its power, parliamentary control is provided for by the 2017 law.339 The Senate and the French National Assembly primarily exercise this control. However, it is really exercised by a group of three people who belong to the two biggest political parties.340 The fact that only the two biggest political parties exercise this parliamentary control raises an issue of a neutral party, if their parties make the laws, they may be biased when it comes to the results of these measures. Ensuring that both the National Assembly and the Senate are updated on the measures is crucial so that the parties are not biased. The efficiency of the new law has yet to be determined as it is too recent. Nevertheless, it opens a debate as to whether restricting civil liberties and human rights is worth it if it prevents further terrorist victimization. Some measures, such as having bag checks when going to a mall, does allow security agents to check for the presence of weapons and hopefully prevent a shooting. However, closing mosques would infringe upon the right of freedom of thought, consciousness and religion granted by the French Constitution and the ECHR.341 A preliminary ruling on constitutionality was transmitted to the French State Council by the administrative court of Versailles (a suburban region in Paris) regarding the constitutionality of the measure to temporarily close a mosque by the Yvelines commissioner’s decree.342

Even though France is concerned with respecting human rights, it is nevertheless devoted to prosecuting terrorist offences under articles 421-1 and subsequent articles of the Criminal Code. For instance, France prosecuted parents who sent money to their children who became jihadists.343 But as MBC states, it seems that judges did not consider whether the parents knew that the money sent was financing terrorist activities or whether or not they shared the jihadist ideology. Two points of view can be drawn: parents want to support their children financially because it is in any parents’ nature to support one’s child, while the State is keen on hitting terrorist groups where it matters, i.e. how the groups are financed. When legislators drafted texts to prohibit financing terrorist groups, it seems that they did not envisage parents being

335 Pierre Januel, La loi Sécurité intérieure et son contrôle parlementaire se mettent en place (Dalloz- Etudiant, 9 November 2017). 336 Ibid. 337 Ibid. 338 Loi n. 2017-1510 (n 167), Art. 3 modifying Art. L. 228-1 and -2 Code de la sécurité intérieure (n 102). 339 Ibid Art. 5. 340 Januel (n 335). 341 ECHR (n 113), Art. 9; Const. (1958, last amended in 2008), Preamble. 342 TA de Versailles, ordonnance du 22 novembre 2017, n°1708063; Arrêté du 17 novembre 2017, portant fermeture de la mosquée « salle des Indes » à Sartrouville, n°2017321-0006. 343 MBC (editor for Dalloz-étudiants), Infraction de terrorisme et liens familiaux (Dalloz-Etudiant, 2018). 47

one of the money sources and this is what French judges and law-makers need to deal with as best they can, using the tools they have, such as article 421-2-2 of the French Criminal Code. But this prosecution is limited for the moment to people who are arrested in France which raises the question about French jihadists who have been arrested in the regions of Syria and Iraq.

French families have lodged a complaint against the State that indicated that it will not prosecute French jihadists arrested in those regions but leave the jurisdiction to the authorities in those regions.344 France thus subjects its nationals to inhumane prison conditions and human rights violations for illegal detentions (some regions where the jihadists are imprisoned are not recognized as a State, i.e. Syrian Kurdistan).

Future reports from NGOs will surely point out these violations. In addition, allowing prosecution abroad could also have a negative effect as most nationals who have left France to become jihadists could be helpful in the fight against radicalization in France. They could be an asset in deradicalizing people who are at risk or who plan to go to combat zones. Other European countries have used former radicalized people to promote the dangers of ISIS and of radicalization, for instance Denmark.345 ISIS’s influence seems to be declining as it loses territory, but if France wants to put to an end to its nationals leaving for combat zones where ISIS is still active, it needs to rely on former combatants and prosecute those who come back to show that they are keen on prosecuting them according to the Rule of law. Another issue with France not prosecuting jihadists that were arrested in regions where ISIS is or was present, is that the death penalty is applied in some of these countries.346 By allowing their nationals be prosecuted in regions that use the death penalty, France would contradict treaties it has signed that prohibit its use.347 Moreover, by prosecuting former combatants it would allow the French population to assess the whole problem of radicalization and could help to mend society’s wounds.

4.3.3. The consequences of the Paris attacks on everyday lives

One of the effects of the Paris attacks was a rise of Islamophobia among the French population. As literature has pointed out, victims have a need for anger and retribution that was expressed with attacks against Muslims, whether the perpetrators of the attacks against Muslims are direct, indirect, vicarious victims or are not victims at all.348 As the perpetrators of the Paris attacks were of Muslim origin, some people associated all Muslims to ISIS and that

344 William Bourdon, Marie Dosé, Marc Bailly et Martin Pradel, Communiqué de Presse – concernant les familles de djihadistes français détenue au Kurdistan syrien. Plainte contre l’État français (18 January 2018). 345 Mennucci (n 73), 119. 346 UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989, A/RES/44/128, Art. 1; Council of Europe, Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, 3 May 2002, ETS 187. 347 Ibid. 348 Letschert, Staiger and Pemberton (n 105) 147, 156-159. 48

resulted in an increase in Islamophobic acts.349 The Government has a role to play in preventing such acts and should also rely on the media to appease tensions as well as to call for peace between cultures. Moreover, more attention should be brought to this problem of Islamophobia to show that this should not be tolerated. This could also reverse the current trend of discrimination based on ethnic profiling by police authorities for which France has been known for.

Radicalization trends have shown that ISIS does not only recruit people who have Muslim origins but people from various backgrounds.350 The State needs to acknowledge this fact and raise awareness in the population. This would help prevent discrimination and attacks against Muslims. Equally, the more you know about a problem, the more likely you are to find a solution to it. As mentioned above, allowing repentant combatants to talk to endangered individuals could also be beneficial, authorities would have the experience of those that have left to fight and have come back and could also prevent more people from going to fight for ISIS.

But if the Government should rely on former combatants, it should also rely on victims of terrorist attacks and their families to talk about their experience. The parliamentary report on all the measures put into place since 7 January 2015 to fight terrorism is a start.351 Allowing victims to participate in the criminal proceedings is another step. However, due to mass victimization, this could be risky. It could lead to secondary victimization for the victims, but it would also lengthen the proceedings and endanger the rights of the accused.352 Still it is important for the French population to hear them as the Paris attacks impacted the population due to their targets: the French way of life. It is a duty to remember what happened and to know the truth so that a larger number of people can recover. Moreover, if the State respects these duties, more people will trust the system and know that French authorities does everything it can to fight terrorism.

Training staff, whether they are judges, lawyers, police officers, EMTs was a big failure according to the testimonies given in the parliamentary report and this needs to be solved as it impacts victims’ needs for immediate emergency assistance, recognition and respect, information, victim participation, acknowledgment, and security. Even though terrorist attacks are not that common in France compared to other regions of the world such as Syria or Iraq, training staff that is in contact with victims of terrorism pursuant to the 2012 EU Directive would also benefit victims of other crimes such as murder, rape to name a few.353 Moreover, educating the entire population on how to react to a terrorist attack is also useful, it could decrease angst as people would know what to do: hide, alert the proper authorities, know how to administer first aid. The Fédération nationale des victimes d’attentats et d’accidents collectifs (FENVAC, national federation of victims of terrorism and mass casualties) intends to

349 HRWR 2018 (n 186), 219. 350 Pietrasanta (n 4), II 43. 351 Pietrasanta (n 4), I & II. 352 Luke Moffett, Realizing Justice for Victims Before the International Criminal Court, ICD Brief 6 (September 2014). 353 2012 EU Directive (n 135), Art. 25. 49

‘cultiver la résistance citoyenne’ (nurture citizen resistance).354 By that they mean that each citizen should be an actor in his or her safety, for example knowing what to do in case of a terrorist attack.355

Even the measures that were put into place during the state of emergency and which entered ordinary law with the 2017 Homeland Security law with the aim to increase security measures, prosecute terrorist offences, and prevent terrorism are under constitutional scrutiny. This indicates that legislators have adopted measures that would be contrary to French values that are provided for in the French Constitution and would show that preventing potential attacks trumps the respect of fundamental rights like the freedom of movement, freedom of religion as provided for in the ECHR.356

One of the positive aspects from the measures put into place after the Paris attacks was the compensation for victims. The FGTI that deals with compensating victims of terrorism has been in place since 1986 and its system is well run to be efficient for victims. The list of beneficiaries is drawn up from police reports and can be completed by people who can send an application file.357 Another positive aspect can be the solidarity and cooperation between first responders and medical staff that treated victims of the targeted locations on 13 November 2015. Finally, the Jawad Bendaoud decision shows that France is capable of both prosecuting jihadist terrorism and staying true to its values.

354 Pietrasanta (n 4), II 68. The FENVAC accompanies victim associations after terrorist attacks to reach their goals for compensation, the right to the truth, and the right to memory of victims. 355 Ministry of Justice, ‘Comment Réagir en cas d’attaque terroriste ?’ (10 December 2015). 356 ECHR Additional Protocol No. 4 (n 284), Art. 2; ECHR (n 113), Art. 9. 357 Pietrasanta (n 4), II 978-979. 50

5. Conclusion

Through international, European, and French legal documents, scientific literature and case law, this thesis has drawn up a compilation of all the existing legal documents prohibiting terrorism, the reparations meant for victims of terrorism as well as what is implemented for perpetrators awaiting trials for terrorism in France. Recent terrorist attacks in France have shed some light on the resurfacing of mass victimization which has not been seen since the end of World War II. France has been a target of terrorist attacks since the French Revolution. Following the terrorist attacks perpetrated by anarchists in 1892 and 1893, the evil laws were adopted to punish the perpetrators. When France fell prey to new attacks in the second half of the 20th century, new laws were drawn up to prosecute terrorists to adapt to the new face terrorism had put on. But how is France changing its legislation to prosecute terrorists and people linked to terrorism with the possible aim of answering victims’ needs?

Following the same mentality with the rise of the newest face of terrorism, France has amended its legislation regarding this crime by increasing security measures, i.e. increasing bag checks in public places, PNR measures at airports and maritime ports. Furthermore, recent legislation has been aimed at prosecuting those who direct, finance, and distribute means for terrorists to commit their acts. It also identifies victims’ needs for recognition, information, and victim participation after a terrorist attack while acknowledging that terrorism impacts a larger group than the one that was directly attacked. In addition, to repair mass victimization, France has a unique system of reparations: the FGTI. It is open to anyone who was a victim of terrorism in France, and to French nationals who fell victim to terrorism abroad. Correspondingly, it has a quick implementation process for victims to receive financial aid to face the consequences of a terrorist attack. What is more, the Fund’s financial backing comes from terrorists’ frozen assets, donations and from a national contribution from levies on insurance contracts on property. This allows the security of finances for the Fund and ensure that victims will be compensated.

Nevertheless, some recommendations could be drawn from the victims’ experiences:

1. Ensure that the people encountered by victims are trained and sensitized to trauma due to terrorist attacks, including medical training to treat war wounds; 2. Allow victims to have the same contact person throughout administrative proceedings; 3. French lawmakers should change legislation that is contrary to the French Constitution or which violates fundamental rights from Human Rights instruments; 4. Judges who will continue to prosecute jihadist terrorists need to respect victims’ needs for participation as well as ensuring that the trials do not turn into a public spectacle for jihadist propaganda; 5. Use repentant fighters as well as returning jihadists to gather intelligence on terrorist cells as well as using them in deradicalization programs; 6. The State needs to be involved in first contact procedures with victims;358 7. The State should also encourage international cooperation, especially in prosecuting

358 Ibid 66. 51

terrorism that, contrary to the judiciary, is not restricted by borders;359 8. There needs to be a balance between being ready and being in a state of constant fear. Training in first aid, training how to interact with victims as well as drills could be helpful in preparing the population;360 9. Terrorism legislation should be aimed at prosecuting the perpetrators but should also consider that needs of victims’ must be attended to in order to limit the impact of the terrorist attack. Furthermore, studies should be aware that terrorism is not limited to those who were directly involved in the attacks but can impact those who were not directly touched by the events, i.e. Parisians who did not know anyone injured or deceased, who were not living near the targeted areas.

Finally, the most important thing after a terrorist attack is not to let it slow you down. As Antoine Leiris wrote:

Alors non je ne vous ferai pas ce cadeau de vous haïr. Vous l’avez bien cherché pourtant mais répondre à la haine par la colère ce serait céder à la même ignorance qui a fait de vous ce que vous êtes. Vous voulez que j’aie peur, que je regarde mes concitoyens avec un œil méfiant, que je sacrifie ma liberté pour la sécurité. Perdu. Même joueur joue encore.361

359 Ibid 67. 360 Ministry of Justice (n 355). 361 So, no, I will not give you this gift of hatred. You do deserve it but responding to hatred with anger would be giving in to the ignorance that made you what you are. You want me to be afraid, for me to look at my constituents with wary eyes, that I sacrifice my freedom for safety. You lost. Same player still playing the game; Antoine Leiris, Vous n’aurez pas ma haine (Fayard, 2016) 52. 52

6. Appendices

6.1. Appendix 1 – Interview with S.

The interview was carried out following the directions of P. McAdams’s article The Life Story Interview (2008). Questions were asked based on how the interviewee perceived the events, what he was doing that night, the following days and how the events impacted his life. He was chosen in my inner circle because he lives outside of Paris but came to Paris to get to school. He corresponded to the criteria of one who did not lose anyone and did not know anyone who died or who was injured.

Context: 21-year-old male, student, first year of Master of business law, does not know anyone deceased or injured during the Paris attacks. However, he knows some people who were at Stade de France at the friendly football match France-Germany. They are old friends who used social media to tell people they were not injured.

That night, he was at home watching the football match, he wanted to spend a quiet evening at home because he had gone out the day before and my birthday was the following day. He heard explosions which occurred near the stadium. He initially thought they were fireworks or a homemade bomb which often happens during PSG (Paris Saint Germain) football matches. Then, he got the push notifications from Le Monde about an ongoing shooting. He put on BFM TV and landed on the special editions. He remembers that the information was not too clear, then the news showed that the evening “went crazy”. He saw that there was an ongoing incident at the Bataclan, then a hostage situation. At first, he thought that the hostage situation could end well, if the RAID was able to intervene in good conditions but this impression was short lived. He learned that it was the total opposite, people were getting killed quickly, and clearly, there would be a lot of casualties. At 82 deaths, he felt like someone had slapped him.

He sent messages to his friends to tell them that he was at home. But also, to see where others were. Then he did the Facebook safety check, saw that his friends were doing the same, that some friends were online. He received messages from his family, reassured his friends, making sure that everyone was doing ok. He then tried to go to sleep.

On his feelings that night: shocked, there had already been Charlie Hebdo (that January). He said “those bastards! There they are attacking France”, he tells himself that it can happen again. With November 13th, he mentions a “bloodshed”: the guys are pumped up, the target is bigger this time. He knew it could happen again, but he was not expecting such a huge attack. The quickness of the attacks shocked him. 80 dead and even more injured. He did not feel ready for that, a “real slap”. Even though he was not directly involved (he did not lose anyone or know anyone injured), but it is a feeling that he says could be felt by everyone, it was not a personal attack, against him. And he describes himself as someone who is not very emotional.

53

The following days, he remained shocked because it happened. It did not bother him for weeks, we know who did it. They were all caught or dead, he was able to get closure on the guys. But in fact, did not really change for a couple of days.

Today, he is less shocked, he digested the events. We talk about it, but it remains “very complicated to talk about it”, we don’t do it happily, but it’s an event that will always stay in our minds.

On his personal life: there is no real impact on his day to day life. He sees military men in front of schools, mainly in front of a Jewish school. There the men show that you cannot stay too long in front of it, even in a car, they indicate you need to speed up and they are always there in front of that Jewish school.

He tells me this anecdote about what happened to him in the RER one day. He accidently tripped and fell into a soldier and ended up with the barrel of the gun against his stomach: he was not ready for that, especially because it was an accident. The man immediately reassured him and told him that the gun was not loaded, that the bullets were in their charger which was in his back pocket, that he saw that S. did not fall on him on purpose and that there was no mistake on that. The dialogue was normal, it is more of a reassuring presence.

He asks his way when he gets lost or even during ID checks that go on calmly. I asked him the reason for these checks and he answered that because he dresses a bit “street” in a train car with a lot of “colored people”, he expects it, it’s routine. Moreover, he has a beard, is subject to more checks, so he smiles more to show that he does not pose a threat, he shows good disposition, he shows that he is not “a white radicalized man, dressed in street clothes”. As we realize that there are white radicalized people and who have a beard, he wants to show that it is not his case. It does not disturb him more than usual, but he finds that this stereotype helps people who lose their way and radicalize themselves.

On exterior events to the attacks: he mentions one or two deaths in the family, but they have no impact on him. There was also a birth in the family early 2016. He also had health issues, but they were there before the attacks, he sometimes relapses, it stressed him out, but it had nothing to do with the attacks.

Regarding any PTSS: some trouble sleeping for a couple of months but have nothing to do with the attacks. All his anxieties, uncertainties, disappointment due to others but it has nothing to do with the attacks. He describes himself as someone who is “too relaxed”. Regarding any psychological or psychiatric help: he had thought about it because some people “really pissed him off” but he did not do it. He is an introvert, he isolates himself for one or two days to recharge his batteries. It soothes him and allows him to prevent any mental breakdown, they are temporary worries. But he did talk to his inner circle: “it’s normal to talk about it”. He remembers that at my birthday party, I insisted that people come, to say that the terrorists “had not won”. He thought that it was a good idea to come, his family was stressed out, but he reassured them, he was not taking any risk, “I know where I’m going”, we’re not going out. We

54

stayed at a friend’s house where I had my party, we talked, drank, we had a good time. Talking with the others, everyone had his own ideas and had lived it differently from the others.

On the usefulness of talking about it: he is not broken down by it, no need to rebuild himself. But it was interesting to see how others lived it, it was “more useful for them”.

On holding ISIS responsible: for him, it’s to know who did it. Now we know, we are able to recognize who did it.

For the victims: he is not able to put himself in their shoes, if it’s useful or if it’s torturing themselves, they may want to forget.

He wants to know who but does not find it useful to know why (they did it by stupidity and by madness). It is useful to know who is responsible for the society, but it is not vital for him.

On his own victimization: he answers in two parts:

- Directly, he does not consider himself a victim, it did not concern him closely or from afar - But as a young French citizen, he considers himself a victim: they were “targeted attacks against our culture”, we go out to bars, go to football games, concerts, it’s our way of life that was attacked, not him directly.

He knows that some people did not live it well: a friend of a friend invented story she knew someone who had died but it turned out not to be true. He does not know if the person did it, so people would pay attention to her. But it’s “weird to see that it’s false”. People reacted differently.

55

6.2. Appendix 2 – Maslow’s pyramid of basic needs

56

6.3. Appendix 3 – Examples of European compensation funds

Table 1 – Comparison of European Funds created for Victims of Terrorism

Greece Children whose parents died or became 100% disabled due to a terrorist attack may claim certain preferences and privileges. For instance, registration at a university near their place of residence, they have the option to enter the public service as an employee even if there are no vacancies or there is a hiring freeze

France Direct victims and surviving relatives can apply to the FGTI. Victims who have filed a police report are automatically added to the list and others can fill out a form. The nationality of the beneficiary is irrelevant if the victimization occurred in France. Funding of the FGTI comes from a levy on property insurance policies. The FGTI covers medical expenses, funeral expenses, economic loss but not property damage. This means that loss of salary is covered but not the destruction of a building (this is normally covered by homeowner’s insurance).

Spain Direct victims and surviving relatives of deceased victims and legal persons. No nationality criterion but the attacks was aimed at Spanish interests to be eligible.

Compensation rates are fixed and cover personal injury (physical and mental injury), medical expenses, private and commercial property damage, vehicles. There is also an extraordinary pension in case of death or disability. Beneficiaries are exempt from any administrative fees within the educational system. Compensation or further financial support is tax free.

After the 11 March 2004 bombings in Madrid, a special fund ‘Fundo de Ayuda de 11-M’ was created in parallel to other funds. Still the system was described to be lengthy.

Italy Direct victims and surviving relatives are eligible. Foreign nationals can file a claim to the Italian fund of their victimization occurred on Italian territory and Italian nationals can apply to the Fund for terrorist or organized crime acts that occurred outside Italian territory.

They can receive disability pension; medical care, medicine and other medical aid and instruments are free of charge. They can also receive advance payment (to compensate for a lengthy process maybe) and if the compensation is not awarded in the end, they do not have to restitute the advance payments.

57

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Command papers and Law Commission Reports

Mennucci P., Rapport fait au nom de la commission d’enquête sur la surveillance des filières et des individus djihadistes [Report in the name of the inquiry commission on the surveillance of jihadist cells and individuals] (June 2, 2015)

Pietrasanta S., Rapport fait au nom de la commission d’enquête relative aux moyens mis en œuvre par l’Etat pour lutter contre le terrorisme depuis le 7 janvier 2015 [Report in the name of the inquiry commission regarding the means put into place by the State to fight terrorism since 7 January 2015] (July 5, 2016), vol. I and II

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Official Publications

Direction Générale des Entreprises, Etudes Economiques Key facts on tourism, Edition 2014 accessed 08 February 2018

Direction Générale des Entreprises, Etudes Economiques Key facts on tourism, Edition 2015 accessed 08 February 2018

Direction Générale des Entreprises, Etudes Economiques Key facts on tourism, Edition 2016 accessed 08 February 2018

Direction Générale des Entreprises, Etudes Economiques Key facts on tourism, Edition 2017 accessed 08 February 2018

Gouvernement.fr, Actes terroristes : les enfants des victimes peuvent devenir pupilles de la Nation [Terrorism attacks : the victims’ children can become ward of the State] (30 November 2015) accessed 08 February 2018

Non-official Publications

Association française des Victimes du Terrorisme, ‘Compte-rendu des audiences du procès de Jawad Bendaoud, Mohamed Soumah & Youssef Ait-Boulahcen 24/01/2018 au 14/02/2018’ [Minutes reports of the hearings of the trial of Jawad Bendaoud, Mohamed Soumah and Youssef Ai-Boulahcen from 01/24/2018 to 02/14/2018] accessed 16 February 2018

Amnesty International Reports

Amnesty International, Amnesty International Report 2015/2016 (2016)

Amnesty International, Amnesty International Report 2016/2017 (2017)

Human Rights Watch Reports

Human Rights Watch, World Report 2012

Human Rights Watch, World Report 2013

Human Rights Watch, World Report 2014 65

Human Rights Watch, World Report 2015

Human Rights Watch, World Report 2016

Human Rights Watch, World Report 2017

Human Rights Watch, World Report 2018

Fact Sheets

European Court on Human Rights, ‘Factsheet – Life imprisonment’, Press Unit (June 2017), accessed 23 November 2017

Ministry of Justice, ‘Juré d’assises’ [assizes juror] (3 November 2016), < https://www.justice.fr/fiche/jure-assises> accessed 06 February 2018

Ministry of Justice, ‘Comment Réagir en cas d’attaque terroriste ?’ [How to react in case of a terrorist attack?] (10 December 2015) accessed 19 January 2015

Vie Publique, ‘État d’urgence et autres régimes d’exception’ [State of emergency and other emergency arrangement] (updated 13 November 2017) accessed 25 November 2017

Vie Publique, ‘Sécurité : l’adaptation du plan Vigipirate à la menace terroriste’ [Safety: adaptation of the plan Vigipirate to the terrorist threat] (9 December 2016) accessed 25 November 2017

Websites

Association de la Presse Judiciaire, ‘Calendrier des principaux procès déjà audiencés’ [Calendar of already heard trials (at first and/or second instance)] (APJ, 2018) accessed 19 January 2018

Centre d’excellence Jean Monnet Aquitaine (CEJMA) < http://www.cejma.fr/le-centre/> accessed 08 February 2018

Centre pour les humanités numériques et l’histoire de la justice (CLAMOR), ‘28 juillet 1894. Loi sur les menées anarchistes’ [28 July 1894. Law on the anarchist tendencies] (Crimino Corpus, 2013) accessed 15 November 2017 66

Ministry of Homeland Security, ‘Attentat du 14 juillet 2016 à Nice’ [French Homeland Security, Attacks of 14 July 2016 in Nice] (Ministère de l’Intérieur, 15 July 2016) accessed 27 December 2017

Newspaper/Magazine Article

Louise Bugier, Victor Faubert, and Marie-Violette Bernard, ‘Besoin de reconnaissance, appât du gain… Pourquoi des affabulateurs se sont fait passer pour des victimes d’attentats’ [Need for recognition, greed… Why fakers pass themselves as victims of attacks] (France Télévisions, 25 July 2017) accessed 29 November 2017

HuffPost and AFP, ‘Abdelkader Merah: Les six moments marquants du procès, dont le verdict est attendu ce jeudi’ [Abdelkader Merah : the six highlights of the trial, whose verdict is expected on Thursday] Huffington Post (01 November 2017) accessed 29 November 2017

Mathilde Larrère, ‘État d’urgence : Le précédent des “lois scélérates”’ [State of emergency : the precedent of the “evil laws”], Politis (29 November 2015), accessed 10 November 2017

Elodie Lepage , ‘Attentats de Paris et Nice : une pilule pour soigner la mémoire des victimes’ [Paris and Nice attacks: a pill to heal the memory of victims] L’observateur (14 September 2017) accessed 29 November 2017

Nick Miller, ‘Escaping the dark: Helping terror attack victims with post-traumatic stress’ The Sydney Morning Herald (24 August 2017) accessed 29 November 2017

Le Monde.fr and AFP, ‘Deux ans après, la France rend hommage aux victimes du 13- Novembre’ [Two years after, France remembers the victims of 13 November] Le Monde (13 November 2017) accessed 29 November 2017

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Timothée Vilars (reporter for l’Obs), ‘Emmanuel Domenach: ‘Le procès Jawad Bendaoud me rassure pour le futur procès du 13-Novembre’’ ’ [Emmanuel Domenach: ‘the Jawad Bendaoud trial reassures me for the future 13-November trial’] L’Obs (15 February 2018) accessed 15 February 2018

Press Releases

13onze15 Fraternité-Vérité, ‘Quel avenir pour l’aide aux victimes ?’ [What future for the aid to victims?] (25 May 2017)

Bourdon W., Dosé M., Bailly M., Pradel M., ‘Communiqué de Presse – concernant les familles de djihadistes français détenue au Kurdistan syrien. Plainte contre l’État français’ [Press Release – concerning the families of French jihadists imprisoned in the Syrian Kurdistan] (18 January 2018) accessed 21 January 2018

Cotti P., de Mecquenem I., Masson C., ‘A l’attention de Maître Olivier Morice, avocat à la cour’ (Paris, 27 September 2017) accessed 16 February 2018

FGTI, ‘Indemnisation des victimes des attentats du 13 Novembre 2015’ [Compensation of the victims of the 13 November 2015 attacks] (Vincennes, 6 November 2017)

Ministry of Homeland Security, ‘Sortie de l’état d’urgence – Un bilan et des chiffres clés’ [exit from state of emergency – an assessment and key figures], (3 November 2017) accessed 29 November 2017

Ministry of Justice, ‘Inauguration du nouvel espace d’information et d’accompagnement (EIA) des victimes d’acte(s) de terrorisme’ (16 January 2018)

Conferences

Wintgens C., ‘Négocier les discours (in)sécuritaires au quotidien : le cas du #Brusselslockdown’ [Negotiate the (in)security discourses on a daily basis : the example of the #Brusselslockdown], scientific colloquium and conference, 22 and 23 March 2017, Toulouse, France < https://orbi.uliege.be/handle/2268/210800> accessed 15 February 2018

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