Category Archives: France

We are not all Charlie: why the biggest threat to freedom of expression might come from within democracies

Putting aside the usual “they had it coming” comments that have flourished on twitter and facebook, since Tuesday, I am reading reports that a number of media outlets are deciding not to show Charlie Hebdo cartoons. This seems to be the case for CNN for example, which circulated an internal memo to that effect, and Associated Press which apparently removed Charlie Hebdo cartoons from its database.

I called this reaction “sad and cowardly” on twitter yesterday, but I suppose that faced with such barbaric act of violence, I should show some understanding for the decision of these journalists who might fear for their lives. Not everybody has the courage of Charb, the editor in chief of Charlie Hebdo, who claimed to prefer to die standing than on his knees.

The problem is that fear, which is at the end of the day a natural human reaction, is not the the justification that is always put forward. This is from the CNN memo:

Although we are not at this time showing the Charlie Hebdo cartoons of the Prophet considered offensive by many Muslims, platforms are encouraged to verbally describe the cartoons in detail. This is key to understanding the nature of the attack on the magazine and the tension between free expression and respect for religion.

In my initial reaction to the attack in Paris against Charlie Hebdo cartoonists, I claimed rather harshly that the idea one finds in human rights discourse that offense or disrespect of religion are legitimate limitations of free speech was conceptually also responsible for what happened in Paris. The CNN memo illustrates this point by putting in the same balance free speech and respect for religion.

However, there is no right to be respected in my view, either for individuals, and even less for religions. As noted by Salman Rushdie in his message of support to Charlie Hebdo, “‘Respect for religion’ has become a code phrase meaning ‘fear of religion.’ Religions, like all other ideas, deserve criticism, satire, and, yes, our fearless disrespect.” Freedom of expression  and respect for religion, or any idea, should not therefore never be put on the same level.

Of course, some people have told me that my focus on freedom of expression is too intellectual and beside the point in response the the senseless violence that the murderers used. It is a language that they cannot start to understand.

I agree. There are some people with whom dialogue is impossible and there is no sense in invoking against them certain values, because values, contrary to the universalist ideology, imply a shared social contract, a sense of wanting to live together within the same community (vivre ensemble, in French).

This was brilliantly captured by Charb in a 2012 editorial in Charlie Hebdo:

Peins un Mahomet glorieux, tu meurs.
Dessine un Mahomet rigolo, tu meurs.
Gribouille un Mahomet ignoble, tu meurs.
Réalise un film de merde sur Mahomet, tu meurs.
Tu résistes à la terreur religieuse, tu meurs.
Tu lèches le cul aux intégristes, tu meurs.
Prends un obscurantiste pour un abruti, tu meurs.
Essaie de débattre avec un obscurantiste, tu meurs.
Il n’y a rien à négocier avec les fascistes.

[translation: Paint a glorious Muhammad , you die. Draw a funny Muhammad, you die. Scribble an ignoble Muhammad , you die. Make a crappy movie about Muhammad , you die. Resist religious zealots , you die. Lick the ass the fundamentalists , you die. Take an obscurantist for a fool , you die. Try to debate with an obscurantist , you die. There is nothing to negotiate with fascists.]

My point is very different. I am not trying to convince extremists to agree with me. They probably never will, as our views of the world and of a shared community are radically opposed.

My point is addressed at those within our democracies who try to limit free expression every day under the guise of human rights, respect or human dignity. I believe that freedom of expression is non negotiable full stop, whether with fascists or anyone else. Yet, I wonder how many of the people who are supporting Charlie Hebdo today are truly supporting freedom of expression.

Indeed, the same people who are marching in the street today, often also think that voices should be silenced through laws which vaguely define “incitement to racial hatred” or want Parliaments to legislate on history through laws prohibiting denial of certain events or crimes. Of course, they would claim that these examples are very different. What transpires from interviews done with people attending the marches in Paris is that, Charlie Hebdo cartoonists are defended because they are perceived as progressive left-wingers. Whereas the likes of Dieudonné, a controversial French humorist, perceived as an antisemite, should not be allowed to do his shows. It is also the same people who would refuse that the Front National, a legally recognized French party, not participate in the general march in support of Charlie Hebdo because it is not ‘republican’ enough. It is the same people who denounce the racist caricatures of far-right newspaper Minute.

Do they not see the paradox there? Marching in the street seemingly denouncing any attack on freedom of expression while at the same time denying that the others should be allowed to express themselves… Freedom of expression is a question of principle which should not depend on the content of the expression, in the same way that the protection of the rights of the accused in international tribunals should not depend on the perception of guilt, or the our moral reaction to the horrendous nature of the crimes. I defend Charlie Hebdo cartoonists in the same way I would defend Dieudonné or Garaudy, a French holocaust denier (or his English equivalent, David Irving): because whatever they say, they should have a right to say it in a democratic society. I wonder how many people, if these shootings had taken place at Minute, would now be wearing a T-shirt with “I am Minute” on it.

In that respect I am profoundly intellectually opposed to the phrasing of of Article 10(2) of the ECHR which provides that:

The exercise of [freedom of expression], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society

For me, a truly democratic society should not need to limit freedom of expression. It should be solid enough in its foundations to accept even the most radical opinions, however outrageous or disrespectful they are.

The problem is that too many people  have accepted this intellectual dictatorship that seeks to impose what we should think about everything and the ensuing limitations to our freedom of expression.

I see this every year in my human rights classes, where I always take freedom of expression as a case study. I do this because I realized that this seems to be the fundamental freedom, in appearance applauded throughout the world as shown by the overwhelming support for Charlie Hebdo, where students are willing to accept limitations on the basis of various moral, religious or other grounds without any further reflection. This is not the case for other freedoms, such as the prohibition of torture for example, because they create easily digestible dichotomies between perpetrator and victim, where there is no real debate whose side to be on. You are on the side of the victim, therefore you agree with the prohibition of torture. Easy. Freedom of expression is something else, because the victims are seen not as those protected by the right, but those affected by the exercise of the right by someone else. So by naturally siding with the victim, we have to disagree with the exercise of the right to freedom of expression. And it is all downhill from there.

Some would claim that the conduct of the media outlets mentioned previously shows, as the phrase goes, that “the terrorists win”. Sadly, I think the situation is far worse than that. Because of our easy acceptance of limitations to freedom of expression in our societies, we have already, despite our most sincere claims to the contrary, started to erode, slowly but surely, this most fundamental freedom that is free speech. What’s worse therefore than the terrorists winning? The fact that we don’t seem to have needed the terrorists in the first place…

I conclude with this beautiful quote from French humorist Pierre Desproges, who practiced his art at a time when you could be caustic without being sued and who would cry if he woke up in France today:

S’il est vrai que l’humour est la politesse du désespoir, s’il est vrai que le rire, sacrilège blasphématoire que les bigots de toutes les chapelles taxent de vulgarité et de mauvais goût, s’il est vrai que ce rire-là peut parfois désacraliser la bêtise, exorciser les chagrins véritables et fustiger les angoisses mortelles, alors oui, on peut rire de tout, on doit rire de tout.

[translation (francophone readers will have to forgive me for this crude translation of Desproges. His mastery of the French language make it quite hard to translate): If it is true that humour is the politeness of despair, if it is true that laughter, blasphemous sacrilege that bigots of all the creeds denounce as vulgarity and bad taste, if it is true that that laughter can sometimes desacralize stupidity, exorcise the real sorrows and castigate mortal anguishes, then yes, one can laugh about everything, one must laugh about everything.]

“I am Charlie”: defending freedom of expression after French Cartoonists killed

je suis charlie

“I am strong, I will hurt them with my words” (My 3 year old son, when being told what happened in France today)

This post is not about cold legal analysis, or even about law. It will not be particularly structured or elaborate. It is an expression of shock and anger at what happened in Paris today.

Two armed men entered the most famous French satirical newspaper, Charlie Hebdo and shot a dozen people before escaping. Apparently, the two men claim to do this in the name of Islam. The attack led to the death of four of the most famous French cartoonists (Wolinski, Tignous, Cabu and Charb, the editor in chief of the newspaper). These individuals represented freedom of expression in France and were known for fighting those who opposed this principle, whatever their creed and religion. These cartoonists helped me grow up intellectually throughout my youth and shaped my capacity for critical thought. They taught me that intellectual freedom and freedom of expression are the most important values and that words are the sharpest weapons.

France, the birthplace of Voltaire, is in shock today.

Charlie Hebdo had taken a stand in 2006 when it decided to reproduce the famous caricatures of Mohamed that had initially been published in a Danish newspaper and sparked tensions throughout the world.

It is the protection of freedom of expression which led me to start this blog nearly five years ago. My second post was to denounce a resolution from the UN Human Rights Council on the “defamation of religion”. The UN should not be held hostage or be complicit to such theories.

My one and only belief is in freedom of expression. Continue reading

Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic’s legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is “illegal” because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I’m still trying to get hold of the decision to verify this.]

French civil Court orders Karadzic to compensate Bosnian Family

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs’ damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): “the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of  manifest human rights violations to an adequate, useful and swift recourse”.

I’ll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I’m not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this…).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US…]

Second of all, I’m a little puzzled by the procedure. The Court’s affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that “le pénal tient le civil en état”, which translates roughly as “criminal proceedings hold civil proceedings still”. This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I’m struck by the finding of the Court that “manifest” human rights violations require a particularly swift remedy. I was unaware that “human rights” had a different role in French tort law, or in tort law in general (nor what the qualifier “manifest” means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue…

I’ll try and get hold of the decision and keep you posted if there is anything interesting in it.

On A French Constitutional Irony

I don’t usually blog about French news, but I had to share the irony of what is going on in the current trial of former President Jacques Chirac. As you might not know, he is on trial for having given fake jobs, paid by the Paris municipality, to people who were actually working for his Party, the RPR (which is now the UMP, the party of current President Nicolas Sarkozy).

This situation had already given rise, 10 years ago, to an interesting discussion on the immunity of an acting head of State, which had been affirmed at the time. The immunity fell when Chirac left power, and the investigation led to the trial which started this week.

On the first day of the trial, the lawyer for one of the other plaintiffs raised a constitutional challenge against the statute of limitations for this kind of crime, which starts running, according to the case-law of the Cour de Cassation, on the day they are discovered, not on the day they are committed.
Such a constitutional challenge is possible since a recent reform of the procedure in France. Before that, laws could be sent to the Constitutional Court before their promulgation, but they were untouchable after that. Now, anybody can raise a challenge in a lower court, and, if the question seems to be well grounded, the proceedings are suspended until the Constitutional Court. It is this procedure which allowed the Court to declare the current system of preventive police incarceration to be unconstitutional.

And now for the irony. The Constitutional Court was set up in the French Constitution of 1958, under the influence of both De Gaulle, and his minister, Michel Debré. And it just happens that De Gaulle’s grandson and Debré’s son are plaintiffs in the current case. More strikingly, the Court is currently presided by Jean Louis Debré, the brother of the plaintiff, and Jacques Chirac, as a former president, actually sits on the Court…
Although there is apparently a procedure to remove a member of the Court in a particular case, this example more generally shows that the reform put in place was not thought through. Indeed, with the Court essentially involved in the pre-promulgation phase, it wasn’t so much of a problem that it had such a political composition. However, now that it has such a strong judicial function, its composition should be changed. If the function changes, so does the institution. The current French Conseil Constitutionnel is a vestige from the past, and must be reformed to face the new legal reality.