For the moment President François Hollande and Prime Minister Manuel Valls are unwilling to consider the option. But for many in the ruling Socialist Party (PS) the creation of a new status of “national unworthiness” is increasingly being seen as a less unpalatable option than the deeply controversial plan by the government to strip French nationality from anyone convicted of a terrorist offence, a move that has split the French Left.
The solution is in fact not a new one. The offence of indignité nationale, also sometimes now known as indignité républicaine, was introduced at the end of World War II to punish morally repugnant behaviour – various forms of collaboration with the occupying Germans for example – that was not covered by other laws such as treason. Many socialist MPs now view this alternative offence as a way for President Hollande to escape from the trap he himself created when, after the November attacks, he proposed stripping French nationality from terrorists in a bid to head off criticism from the Right.
In her traditional annual New Year message the socialist mayor of Paris, Anne Hidalgo, suggested bringing in 'national unworthiness', and Jean-Pierre Mignard, who is close to François Hollande, as well as being Mediapart's lawyer, has also proposed the idea. At the National Assembly the idea is being championed by senior socialist figures such as former minister Benoît Hamon and the MP and parliamentary administrator Bernard Roman, who has the ear of both Hollande and Manuel Valls. “Eighty percent of the [socialist] group are against the removal of nationality,” says Roman, who is convinced the government will gave to change direction on the issue.
“This approach is gaining a lot of ground,” notes another socialist MP, Dominique Raimbourg, vice-president of the National Assembly's legal affairs committee. “To be honest, it's the only one possible. Removing nationality just for dual nationals [editor's note, the current plan and reaffirmed by Valls on January 6th] undermines the right to nationality based on being born on French soil [editor's note, droit du sol] and is a bad symbol as it undermines the national community,” Raimbourg says. “Removing it for everyone [including people just with French nationality, an idea which some back] comes up against the European Convention on Human Rights and leads to a crazy situation: if every country started creating stateless people, what will we do with them?”
In common with several colleagues the MP, who is also a criminal lawyer, wants to replace article 2 of the planned constitutional reform – which strips French nationality from dual-nationals convicted of terrorism – with an article that provides for the offence of “national unworthiness, that one could also call the forfeiture of certain attributes of nationality”. Thus when a judge hands down a life sentence for terrorism or “treason” they could also apply an additional punishment. “On top of the supplementary punishments that already exist, such as the removal of civic rights, the judge could impose the removal of their identity document, replaced by a receipt that would forbid crossing the frontiers of the European Union. The judge could also order the loss of parental rights,” says Raimbourg. Finally, the minimum prison term for anyone convicted of terrorist crimes or treason – currently 22 years – would be increased to 30.
Though the government still seems set on the outright removal of nationality, Raimbourg thinks reality might kick in before long. “They do have to find a majority,” he points out. Bernard Roman notes: “We have to find a text that's acceptable to the Left and centre.” He suggests using the term “forfeiture of citizenship” to refer to the offence of “national unworthiness”, so as to preserve the word “forfeiture”, a concept the Right is keen on.
In the opposition ranks some politicians, such as MP Nathalie Kosciusko-Morizet, the outgoing number two of Nicolas Sarkozy's Les Républicains (LR) conservative party, are ready to agree to that idea. And President Hollande will indeed need many opposition MPs if he hopes to get his reform of the Constitution voted through by the National Assembly, the Senate and then by a meeting of both chambers at a special Congress in April. The rebel socialist MP Pouria Amirshahi, a bitter opponent of the removal of nationality, is amused to see “friends or pro-Hollande supporters of a government in full flight” who are calling for a “punishment of national unworthiness” as some form of “lifebelt”.
The idea of an offence of “national unworthiness” is not new, even in recent times. It was put forward by hard-right Republican MP Philippe Meunier after the terrorist attacks in Paris in January 2015. And historically it goes back even further than World War II. Under France's monarchical Ancien Régime there was a status known as “état de mort civile”, literally “civil death”, under which criminals could be made to forfeit all their civil rights. This was only abolished in 1854. And after the French Revolution of 1789 the punishment of “dégradation nationale”- the stripping of all social status and civil and political rights – was even accompanied by a ceremony involving public humiliation, during which the citizen deemed unworthy of society was accused of being “infamous”.
The academic Anne Simonin, from France's National Center for Scientific Research, pointed out in an article last year that after the Liberation in 1945 it was lawyers from the Resistance movement who invented a retroactive crime of “national unworthiness”. It involved punishing French men and women who “between 1940 and 1944 voluntarily gave their help to a French government, the Vichy regime, which had itself opted for collaboration with the Nazi enemy”. In her report published by the Fondation Jean-Jaurès at the start of 2015, Simonin noted: “In reality national unworthiness codified the crime of lèse-République [editor's note, analogous to the crime of violating the dignity of a sovereign known as lèse-majesté] and punished this crime with a sole punishment, an infamous punishment, carrying moral condemnation and allotting a reduced legal status to the guilty person, without attacking either their life or their freedom.” In all 100,000 collaborators, racists, propagandists, fascists, anti-Semites and Vichy government supporters or members of the General Commissariat for Jewish Questions (CGQJ) were subject to this offence.
In concrete terms this offence led to the stripping of all social status and civil and political rights - “dégradation nationale”- for the person concerned. “The dégradation nationale involved a single bloc of rights taken away (to vote, standing for office, to bear arms), of disqualifications (impossible to be a civil servant, lawyer, notary, primary school teacher, journalist, banker, to run a director...) of forfeiture (loss of rank in the army, exclusion from union functions) and incapacity (impossible to be a juror, court expert or guardian),” wrote Anne Simonin.
“On the other hand the national unworthy retained their freedom to come and go on national territory. This freedom could, however, be restricted by an additional punishment: a residence ban which prohibited staying in certain départements [editor's note, similar to counties]. The stripping of rights could also come with a partial or total confiscation of present and future property, allowing the seizure of bank accounts and forbidding the passing on of family property to the children of the condemned person,” the academic continued. “[The writer] Louis-Ferdinand Céline, convicted of national unworthiness, demanded to be paid in cash by his publisher out of fear of seeing his bank accounts seized...” A minority of those convicted – some 10% - were punished by reduced status for life, turning them into people who were “dead to society”, stripped of all rights. The offence of national unworthiness was abolished in 1951 and a legal amnesty for those convicted was granted.
The question is, should such an offence be recreated for terrorists today? Questioned by Le Monde a few months ago, academic Anne Simonin was hostile to the idea. “By bringing back the spectre of 'civil death', the new national unworthiness would signal the only defeat that is irreversible for the Republic faced with the terrorist threat: a defeat of principles,” she said.
In March 2015, at the request of Manuel Valls, and at a time when the Right was calling for the restoration of the offence of national unworthiness, the socialist president of the Assembly's legal affairs committee, Jean-Jacques Urvoas, published a very critical report on the issue. While he considered that such an offence was “morally understandable” and “legally possible”, he also judged it to provide “very little extra value”, thought it was anachronistic from a legal point of view and was not, in the end “very desirable”. Urvoas also took the view that it would not have much of a deterrent value against a terrorist who “although French, would probably worry very little about losing their status of citizen” and that the offence could even “feed jihadist martyrdom”. Urvoas continued: “Another considerable difference, the Vichy supporters' fight came to an end at the Liberation, while jihadists don't consider themselves as old cult members of a lost cause but rather, on the contrary, as proud combatants in a war that they think that they are in a position to win eventually.”
However, at the end of his report, Urvoas, a close ally of Manuel Valls, pleaded for “new punishments respecting the rule of law, which would essentially have a symbolic impact aimed at our citizens to reinforce their confidence in our repressive apparatus”. At the time he proposed setting life sentences without any chance of parole – like those that apply to people who commit crimes of paedophilia – and wrote of a “Republican” loss of status that would involve “losing civil rights in perpetuity for nationals convicted for life”.
This is not very different from what many socialist MPs are suggesting today in a bid to extricate them and their government as painlessly as possible from a debate over removing nationality that is already wearying for many of them. However in an interview on the evening of Wednesday January 6th, Manuel Valls said he was “convinced” that the government's proposed constitutional amendments would be adopted as they stood, and by a “very large majority”.
The French version of this article can be found here.
English version by Michael Streeter