Paris terrace cafe, July, 2014. Flickr/ zoetnet. Some rights reserved.Between November 2015 and March 2016, France went through a raging debate about denaturalisation (déchéance de nationalité). Denaturalisation is when the state strips, by means of a ministerial decree, a citizen of his or her nationality because that individual is considered a fundamental threat to the nation.
After the terrorist attack in Paris on 13 November 2015, President François Hollande promised that he would seek to include denaturalisation measures into the French Constitution. His proposition expressed that all French nationals convicted of undermining the fundamental interests of the nation or for an act of terrorism should be denaturalised, provided that denaturalisation would not lead to statelessness (Speech before Congress on 16 November 2015). Following on the President’s proposition, it was for the National Assembly and the Senate to debate and decide whether and how this plan could be put forward.
The potential insertion of denaturalisation into the French Constitution raised important questions, such as: if, in order to prevent statelessness, denaturalisation were only to apply to citizens with dual nationality, how does one reconcile denaturalisation measures with one of the most fundamental principles of democracies, i.e. the principle of equality before the law? But also: would denaturalisation be effective to combat terrorism? And would it indeed only have effect on those targeted? What does denaturalisation mean for the rest of the community? The scope of the political disagreements on the topic is best exemplified by Christiane Taubira’s resignation from her position as Minister of Justice 27 January 2016, which she presented as the expression of her resistance to the government’s plan.
Two weeks after Taubira’s resignation, on 10 February 2016, the National Assembly adopted the government’s proposition. Despite the necessity to await the Senate’s ordeal on the matter, most thought the case almost closed. News sources stopped reporting on the topic. The debate seemed over.
On 30 March 2016, however, Le Monde carried the headline “François Hollande renonce à la déchéance de nationalité” (François Hollande abandons denaturalisation plan). Other news commentaries read “La déchéance de nationalité, c’est fini et bien fini” (Denaturalisation is dead and buried). In fact, the Senate had not approved of the national Assembly’s formulation and opposed the plan. Facing the impossibility to get the necessary parliamentary majority, President Hollande was reported to fully abandon his project to revise the Constitution. And so did the debate on denaturalisation end.
But is denaturalisation as dead and buried as news reports make us believe?
Denaturalisation and its histories
Contrary to the latest news reports, denaturalisation is not dead and buried. Nor was Hollande’s proposition to strip terrorists of their nationality a new idea in French politics. In effect, denaturalisation has existed in French law since an ordinance of 1915. Its formulation has changed over time, but the measure has never left the French juridical framework since then. Today, denaturalisation is—still—expressed in article 25 of the civil code, which opens in the following terms:
“The individual who has acquired French nationality may, by order with the assent of the State Council, be deprived of that nationality, unless denaturalisation results in making him[sic] stateless” (article 25 civil code, preamble. My translation).
The point of the preamble is to assert that denaturalisation measures may only target new nationals. It therefore asserts a differentiated understanding of nationality, according to which new nationals are distinguished from born nationals. Strictly speaking, such distinction troubles the Republican ideals of the French Republic: in France, according to article 1 of the Constitution, citizenship shouldn’t reach back to one’s origin. Yet, in order to understand article 25 of the civil code, one is precisely forced to make a distinction between citizens based on their origin.
Now, after the terrorist attacks in Paris on 13 November 2015, the presidential proposition was to revise the current texts on denaturalisation, proposing to extend denaturalisation to all of those constituting a fundamental threat to the Nation, as opposed to new nationals only.
The devil’s advocate may well think that such proposition would solve the problem of differentiated citizenship. If denaturalisation may apply to all French nationals, then it may comply with the principle of equality before the law. Yet, objections stand out.
First, because in practice, denaturalisation measures would still operate differentiated forms of citizenship in order to prevent statelessness. Denaturalisation could indeed only target those with multiple nationalities, thereby making a distinction between those have a single state membership and those having dual nationality. Moreover, objections stand out because of denaturalisation’s history.
Denaturalisation came to be inscribed within the French legal code on nationality during the First World War. It then gave the state the possibility to strip a citizen of their nationality if that person was born in an enemy nation.
Research shows that denaturalisation, as well as the arguments sustaining the measure, was linked to the necessity to deal with infiltrated enemies in a war situation; it was meant as an exceptional measure, during the war, to deal with spying activities—spies being those new nationals of enemy origin who were seen as a potential threat to the nation.
Yet, article 7 of this first law explicitly stated that the law would cease to enforceable two years after peace was definitely signed. Denaturalisation would thus only be used within very clear contextual boundaries: the context of the war.
Defeating article 7 of this first law, history shows that denaturalisation has never been abrogated. After the war, however, its target group was no longer spies, but those who were perceived as a major disturbance to the national community. Denaturalisation had become a powerful tool for the state to get rid of those who had been defined as public enemy.
First, it came to target communists in the 1930s. Then came the Second World War, and denaturalisation started to target Jews, thousands of them, before they were being deported. Besides, new nationals were no longer the only target group; denaturalisation was now also aimed at political dissidents, born and new nationals alike. De Gaulle was then denaturalised.
In the late 1990s, the word terrorism was inserted in article 25 of the civil code to qualify those denaturalisation may target. So today, while the President claims that denaturalisation targets “only terrorists,” we have to be more than vigilant about what this term “terrorist” actually means.
“Terrorism” is in fact a term whose definition has never existed in a singular form. Its heterogeneous meaning is best exemplified by the expression of “introuvable définition” [unknown, missing definition], which came up in one of the parliamentary reports concerning denaturalisation and terrorism in the 1990s. The expression refers to the fact that, while members of parliament were debating new penal measures against terrorism—denaturalisation ended up being one of them, despite the fact that nationality belongs to the civil code and not to the penal code—the concept of terrorism itself could not be properly defined.
At that time, France was facing a series of terrorist attacks that had destabilized the country since the 1980s, and politicians were looking for ways to define and counter what they called a new nature of violence. Studying parliamentary documents and the juridical definition of terrorism reveals, however, that terrorist infractions were eventually not understood as necessarily new forms of violence.
Their nature (such as assassinations, hostages or destruction) were already known and codified as crimes before the term of “act of terrorism” came to be codified as a criminal infraction. Instead, what was new, was the goal and the means of those crimes, which the law identified as “to cause a grave disturbance to the public order” [=goal] by means of “intimidation and terror” [=means] (Code penal, livre IV, titre II, chapitre 1er: article 421-1).
Accordingly, terrorist acts differ from common crimes and offenses in the sense that their effect is more than the mere nature of the act. For instance, if assassination were involved, the effect would not be solely the death of an assassinated individual, but also a grave disturbance of the public order accompanied by intimidation and terror. So, it is not the assassination itself that is being understood as an act of terrorism, but that which surrounds it.
The point here is to understand that the definition of terrorism isn’t as fixed as one might hope it is. Because, what is public order precisely? What is intimidation, what is terror? Those are not easy questions, and there is no singular answer—even if, in some situations, the answer seems obvious.
Furthermore, an act of terrorism is not solely defined by the perpetration of a violent act. Article 421-2-1 of the penal code also defines an act of terrorism “the fact to participate in a constituted group, or in an established understanding with the goal to prepare an act of terrorism (as defined in other articles), as characterized by one or more material aspects.” Intuition may already send out warning signposts suggesting that such definition of terrorism presents us with quicksand rather than clarifying definitions. Studying the jurisprudence about such cases confirms that indeed, no one knows for sure the potentiality of being flagged as a potential terrorist.
Against this background, Hollande’s announcement to abandon his constitutional reform came as a welcome end to the debate raging since November 2015. At least, his renouncement to broaden denaturalisation measures prevents us from drowning back to politics of nationality that would painfully echo the totalitarian fragrances of the occupation regime during the Second World War.
But despite the public and political debate coming to an end, denaturalisation is still well-alive. Article 25 of the civil code continues to legislate its conditions and contextual boundaries. Although limited by international agreements against statelessness, denaturalisation is still practiced and remains part of the French politics of nationality; it remains as a tenacious tool for the state to get rid of those who have been labelled as public enemy. Most of all, denaturalisation continues to establish a differential model of citizenship, distinguishing between new and born nationals.