On June 10, the author of the knife attack in Annecy of four children and adults who had intervened was indicted for attempted murder. In the hours and days that followed this crime, several voices were raised to question the lack of terrorist qualification given to these acts.
All of the testimonies reported by the press show that at the time of the events, the attacker repeated to act "in the name of Jesus Christ". However, in recent years, stabbings committed by people claiming to act in the name of a religion – in this case Islam – have very regularly been described as terrorists by the authorities, whether in Marseille in October 2017, in Strasbourg in December 2018, or in Nice in October 2020. So why was this qualification excluded with regard to the attack in Annecy?
A fundamentally subjective character
From a strictly legal point of view, this decision certainly appears to be quite regular. But intellectual honesty immediately invites us to specify that the opposite choice to retain the terrorist qualification would have been just as consistent with the applicable legal framework.
The characteristic of this qualification is indeed to present a fundamentally subjective character. Under Article 421-1 of the Penal Code, a terrorist crime or offense is in fact an offense under common law – such as murder, kidnapping or even destruction by fire – but which is "in relation to a individual or collective enterprise whose purpose is to seriously disturb public order by intimidation or terror”.
A definition that offers law enforcement authorities a considerable margin of appreciation. Defining what does or does not seriously disturb public order already involves a necessarily subjective approach, depending on the relative sensitivity of the public authorities – and the media – to this or that criminal act. But determining whether the person also had the specific intention of intimidating or terrorizing others by their gesture inevitably leads to arbitrariness.
Unless the act is clearly claimed as such, the characterization of such an intention will then necessarily be based, not on objective elements, but on elements that are at best contextual or, even worse, on the emotion aroused by the facts. , a fortiori when the latter are highly publicized.
It is thus that after the trauma aroused by the attacks of November 13, 2015, thousands of people were searched on the basis of particularly vague suspicions, the reality of their involvement in a possible terrorist project only being proven in less than 1% of cases. In the final analysis, the qualification of an offense as terrorist thus harbors an inevitable arbitrariness.
A delicate situation
This situation poses several difficulties from a democratic point of view. First, it exposes us to the risk of arbitrary or, at the very least, disproportionate repression. Of course, there are crimes whose truly "terrorist" dimension does not suffer in practice no serious discussion, like the attacks in New York on September 11, 2001.
But it must be borne in mind that most of the facts prosecuted today as acts of terrorism do not constitute mass murders clearly claimed or even street attacks committed by isolated people but acts of participation in groups suspected of fomenting plans for an attack – and qualified as such as associations of terrorist criminals. It is for example under this qualification that most of the people suspected of returning or of wanting to go to Syria when this territory was partially under the control of the Islamic State organization.
But how then, without risking falling into arbitrariness, characterize a desire to intimidate or terrify only at the stage of preparatory acts ? It should also be emphasized that this risk of arbitrariness not only poses a difficulty from the point of view of the rights of the persons prosecuted or suspected. By extending the penal net disproportionately, it also results in a potential scattering of repressive forces affecting their ability to respond in a timely manner to proven plans for attacks.
The risk of stigma
Secondly, the overly malleable character of the terrorist qualification also runs the risk of a discriminatory approach by the public authorities to this type of crime. How indeed can it be justified that, faced with a similar modus operandi, acts committed in the name of one religion are qualified as such when those committed in the name of another are not? For many years, international organizations such as the United Nations High Commissioner for Human Rights or non-governmental organizations like Amnesty International warn that:
“Discrimination against Muslims in the context of the fight against terrorism in Europe has contributed to creating an environment which exposes them more hate speech and attacks."
A situation that poses a problem not only in itself, but also because of the paradoxical role that such stigmatization can play in the shift to criminal violence of young people who will see in an Islam as mythologized as it is demonized by other the way to make sense of their desire for social revenge.
Tighten the legal concept
This is why it now seems necessary to reflect, if not on its abolition, at least on a tightening of the legal concept of terrorism in order to limit its potential for arbitrariness. It is in no way a question of depriving the authorities of their means of action but, quite the contrary, of allowing them to refocus on proven criminal plans, which will be all the better warned if their identification criteria are defined with more rigor.
In this respect, the law of the European Union suggests some interesting avenues. The directive of March 15, 2017 on the fight against terrorism indeed defines terrorist offences, significantly more precisely than French law, as those whose purpose is to "seriously intimidate a population", to "unduly compel public authorities or an international organization to carry out or refrain from perform any act” or “seriously destabilize or destroy the fundamental political, constitutional, economic or social structures of a country or an international organization”.
Far from potentially extending to any act perceived as terrorism, the European definition thus restricts the concept not only to acts of particular gravity – in particular by requiring acts explicitly directed not against isolated persons, but against a specific group of persons – but also to acts intended, directly or indirectly, to put pressure on the public authorities. In the light of such a definition, attacks committed without an explicit claim, even with a religious tint, would no longer be qualified as terrorists.
Such a redefinition would in no way deprive the repressive power of the means of sanctioning this type of offence: they would simply be so by virtue of ordinary law. Nor would it prevent recourse to particularly thorough investigative measures implemented by specialized services, with regard to crimes or misdemeanors which, no longer falling under the notion of terrorism, would nevertheless remain committed. in an organized gang – the investigation regime applicable to terrorist acts being only one declination of a regime applicable to organized crime. By being limited to the most serious acts, to those which truly destabilize the social structures of a nation, it would on the other hand make it possible to reinforce the symbolic condemnation of this type of crime, when its generalization tends on the contrary to trivialize it dangerously.
Vincent Sizaire, Associate lecturer, member of the Center for Criminal Law and Criminology, Paris Nanterre University - Paris Lumières University
Image credit: Shutterstock / Alkema Natalia