France's 'apology for terrorism' law used to 'criminalise' Palestine solidarity

On 9 July, Francois Burgat, a prominent French expert on political Islam and pro-Palestine activist, spent eight hours in police custody at the Aix-en-Provence station in the south of France.

Burgat, whose expertise is widely sought after, was detained concerning a complaint filed for “apology for terrorism”, a charge which involves defending or positively portraying terrorist acts.

The complaint was filed by the European Jewish Organisation (Organisation Juive Europeen, OJE), a French NGO made up of around 60 volunteer lawyers that fight against antisemitism and anti-Zionism.

Burgat is accused of reposting a statement by the Palestinian group Hamas on X last January, which refuted allegations of sexual violence against Israelis during the 7 October attack, as reported by The New York Times.

Following backlash over his retweet, Burgat, a former research director at the National Centre for Scientific Research (CNRS), posted that he had “infinitely more respect and consideration for the leaders of Hamas than for those of the state of Israel”.

A few days after his police questioning, Burgat, now retired, told Middle East Eye that his perspective on terrorism aligns with “the one made in his day by General de Gaulle”.

In November 1967, Charles de Gaulle, then president of France, declared: “Israel is setting up in the territories it has captured an occupation that will inevitably involve oppression, repression and expulsions and a resistance to this occupation is forming, which Israel in turn classes as terrorism.”

Burgat told MEE that he knew that he was “in the crosshairs of various French-Israeli Zionist associations” for a long time.

“Still, I was surprised to see this kind of nightmare, contemplated in a joking manner, become reality,” he confided.

According to his lawyer, Rafik Chekkat, the prosecution must review the facts that justified the hearing to decide whether to uphold or drop the accusation.

“This is the first time that a university professor is investigated for having given his political opinion about a foreign conflict,” Chekkat said in an interview, denouncing it as “an attack on the freedom of research”.

'Bad wind blowing in France'

A group of academics voiced their concern over Burgat's police detention in a letter published on 12 July.

“Until recently, Francois Burgat’s expertise on questions relating to ‘terrorism’ was sought by institutions such as the National Assembly, the Senate, the NATO military command and even the anti-terrorism court in Paris," the authors wrote.

“This transition from expert to suspect testifies to the bad wind blowing in France against rights and freedoms, in particular against the freedoms of research and expression.”

Social scientist Hicham Benaissa, one of the signatories, expressed his concerns to MEE.

“We must be extremely vigilant because academic freedom says a lot about the democratic state of a society, its capacity to accept contradiction and disagreements, even the most radical ones,” he said.

“History has taught us that when a society moves to a more authoritarian regime, it quickly attacks academia and particularly social sciences, which are not sciences like others since their mission is to produce critical discourses on society.”

A threat to freedoms

According to Benaissa, threats to academic freedom began surfacing well before 7 October, driven by “baseless theories such as wokeism and Islamo-leftism”.

The woke movement, which denounces discrimination against minorities, has been criticised by the right and far-right for alleged sectarianism and intolerance. Meanwhile, the term “Islamo-leftism” has been used to accuse left-wing ideologies of colluding with Islamist circles.

In 2021, the then higher education minister, Frederique Vidal, stated that Islamo-leftism was "corrupting" society and called for a national enquiry into the phenomenon within French academia.

‘It is not just about Francois Burgat or researchers in general; it is about the democratic state of a society, and therefore the possibility or not for each citizen to enjoy free speech’

- Hicham Benaissa, social scientist

For Benaissa, the “contamination of public debates by far-right rhetoric” represents a danger to freedom of expression in general.

“It is not just about Francois Burgat or researchers in general; it is about the democratic state of a society, and therefore the possibility or not for each citizen to enjoy free speech,” Benaissa said.

In the open letter supporting Burgat, his colleagues pointed out that the case against him is part of a broader pattern of investigations targeting “dozens of others against activists, students, union leaders and politicians”.

Nearly 400 investigations for complaints related to the Israeli-Palestinian conflict were launched between October and December 2023, according to investigative website Mediapart. The majority of the cases are still being processed.

As with Burgat, the OJE lodged some of the complaints.

In November, OJE filed a complaint against humorist Guillaume Meurice, whose joke about Israeli Prime Minister Benjamin Netanyahu led to his dismissal from public radio France Inter in June, despite the court eventually dropping the charges.

Mathilde Panot, the leader of  France Unbowed (La France Insoumise/LFI), and Rima Hassan, recently elected to the European Parliament from the same left-wing party, were also summoned by the judicial police in April as part of investigations into “apology for terrorism”.

The OJE accused them of legitimising Hamas's actions in their statements.

About 10 days later, the OJE was also responsible for the conviction of Jean-Paul Delescaut, the secretary-general of a French trade union, who received a one-year suspended prison sentence for distributing a leaflet stating that “the horrors of the illegal occupation had accumulated, receiving the responses they provoked”.

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Several organisations have condemned the “criminalisation” of solidarity with Palestinians, saying that it is “intolerable that a conflation is made between solidarity with Palestine and support for terrorism or anti-Semitism to discredit anti-racist unions, associations and political parties”.

In April, there was significant outrage when anti-terrorism authorities questioned a group of students from the School of Advanced Studies in Social Sciences who had organised demonstrations in support of people in Gaza.

“Today, whistle-blowing exposes you to considerable risks. We hardly dare to recall that there was a time when showing support for Palestine was, especially on the left, a kind of banality that no one noticed,” Benaissa told MEE.

Following the October attacks and the onset of Israel's war on Gaza, French Interior Minister Gerald Darmanin banned pro-Palestine demonstrations. This ruling was overturned by the Supreme Court five days later.

Simultaneously, justice minister Eric Dupond-Moretti addressed a circular directing public prosecutors to prosecute “public remarks praising the attacks” by Palestinian groups "as legitimate resistance to Israel”. He urged them to ensure “a firm and rapid criminal response” in the face of antisemitism and “apology for terrorism”.

Similarly, higher education minister Sylvie Retailleau sent a letter to the university presidents instructing them to punish “actions and remarks” falling within the offences of “apology for terrorism, incitement to hatred or to violence”.

Punishable by up to seven years in prison

The “apologist for terrorism” offence, introduced in France with the Press Law of 1881, was initially restricted and safeguarded until an amendment in November 2014 transferred it to the Penal Code.

Since then, Penal Code Article 421-2-5 allows for penalties of up to five years in prison and a €75,000 ($81,654) fine, with online offences attracting up to seven years and a €100,000 fine.

Although the new article was designed to fight terrorism-related activities like online recruitment, the practice has been quite different, Chekkat explained to MEE, with rights organisations condemning the increase in prosecutions unrelated to terrorism.

“This approach can create an environment in which people are afraid to question or challenge prevailing opinions, express unpopular views or even make controversial jokes,” Human Rights Watch stated in 2018.

‘There are constantly new laws on terrorism that extend the scope of prohibitions. These texts with vague outlines [...] repress and point out opponents, researchers, activists, trade unionists and so on as delinquents’

- Nathalie Tehio, president of the Human Rights League

“The irony that the fervour for these prosecutions is in part a reaction to the January 2015 attack on Charlie Hebdo, a publication that became a symbol of freedom of expression because it insisted on its right to be irreverent and insensitive, seems to have been missed by France’s constitutional court.” 

Chekkat concurred, saying: “The fact that these comments are punishable in France for ‘apology for terrorism’ reveals the worrying repressive slope in which the country is engaged.”

Since last October, there has been a surge in prosecutions targeting pro-Palestine individuals and organisations. Chekkat expressed concern that the fate of these cases "depends on the understanding that prosecutors and judges have of the term ‘terrorism’, for which there is no stable legal definition”.

“The term terrorism serves to draw a political line between violence deemed legitimate and violence not deemed so, while making invisible the eminently political and subjective origin of this demarcation,” Chekkat said.

Nathalie Tehio, president of the Human Rights League, criticised the “apology for terrorism” offence as a tool to suppress freedom of expression and target those who support Palestinians in France.

“There are constantly new laws on terrorism that extend the scope of prohibitions,” she told MEE.

“These texts with vague outlines give free rein to political interpretation in order to repress and point out opponents, researchers, activists, trade unionists and so on as delinquents.”

Tehio also pointed out that prosecutors who oversee police custody are under the justice ministry’s influence and may receive directives to pursue these cases.