Das Herausgebergremium der Zeitschrift für Politikwissenschaft hat dem beantragten Sonderband zum Ausnahmezustand zugestimmt. Auf Basis der Konferenzbeiträge der #StatEx-2017-Konferenz wird im Laufe diesen Jahres ein englischsprachiger Band entstehen, der theoretische Reflexionen und aktuelle Gegenwartsdiagnosen miteinander vereint.
Herausgegeben wird der Band von Ece Göztepe, Olivier Cahn und Matthias Lemke.
This paper aims to examine the consequences on democracy of ‘permanent emergencies’ linked to terrorism, through the examples and comparison of France and Israel’s states of emergency. France has already extended the state of emergency, originally declared after the November 2015 attacks, for over a year. Israel has been under a state of emergency since its creation in 1948. In both cases, the existence of a state of emergency allows the government to adopt a number of measures which wouldn’t be legal otherwise.
Terrorism is often treated as an exceptional crime which requires an exceptional response, including the adoption of states of emergency. The changing nature of the terrorist threat requires a flexible legal framework, but there are a number of issues with creating exceptional regimes to deal with it, especially if these exceptional regimes become permanent. Exceptionalism might justify extreme rules and a wider range of measures because usual rules are considered insufficient. Yet, the desire for a symbolic message and swift action against terrorism should not cheapen the strength of existing legal measures, which run the risk of piling up without being actually implemented. In fact, we witness an inflation of terrorism legislation often adopted hurriedly and without proper implementation tools or sufficient budget. In turn, these emergency measures tend to settle in the long run as people get used to a new normal, leading to a slippery slope of what is acceptable. For instance, the new terrorism law in Israel enshrines in regular legislation measures that were, on principle, only applicable under the state of emergency.
In addition, emergency fosters extremes and often targets specific groups of people that can then become ostracized. In turn, this can create a climate of fear and resentment towards those suspected of terrorism, as well as discriminatory measures. States will tend to focus on the external and exceptional threat, instead of addressing long-term and domestic issues, which contribute to terrorism, such as radicalisation and integration.
Finally, under states of emergencies, the executive often adopts the primary role in setting the norms, which puts aside the review role of the judiciary. Yet, both in France and Israel, courts have increasingly become involved in ensuring the protection of fundamental freedoms and the separation of powers under states of emergencies, two intrinsic components of democracies. The paper will examine these three particular issues in the two states, and draw conclusions on the impact of exceptional counterterrorism measures on democracy and the rule of law.
The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution – as her predecessor, the Albertine Statute of 1848 – does not provide for any emergency section. However, she provides for instruments to enact whenever a situation of necessity and urgency occurs (mainly the law decree, at Article 77, the powers assigned by the Parliament to the Government in case of war, at Article 78 and the substitute powers of the government, when necessary, of Municipalities, Provinces, Metropolitan Cities and Regions, at Article 120).
The fact that the Albertine Statute did not provided for an emergency section does not have to lead to the conclusion that an emergency situation (or, to use a formulation closer to the French doctrine, a stato d’assedio, état de siège) has ever been declared. The riots in Milan in 1898 or the earthquake in Messina in 1908 witnessed the enforcement of the wartime criminal military code, showing that the Italian legal system accepted the possibility of a legitimate use of extraordinary powers – even against the law – in order to preserve the State and of the legal and social order. The very same aim led King Victor Emmanuel III to appoint Mussolini as head of the government in the aftermath of the March on Rome in 1922.
In the democratic history, other situations happened that required the resort to some sort of emergency power, namely the passing of the legislative decree no. 625/1979, against the left-wing terrorism (the so-called Brigate Rosse, Red Brigades) – strengthening the police powers and compressing suspect rights – and the law no. 225/1992 establishing the Protezione Civile (Civil Defence). Under this second law, the government can pass civil defence orders to handle emergencies. Here the intent seemed more to provide for procedures and structures able to confront emergencies and to make the developments predictable rather than just to assign extraordinary powers.
Besides these ad hoc interventions, the Constitution provides for the instrument of the law decree that the government can enact in situations of extreme necessity and urgency (no further specification on the meaning of the two words is given). The abuse of this instrument made by the governments until the mid-1990s – due mainly to the weaknesses of the parliamentary executive innate in the extremely fragmented party system, the proportional representation and the subsequent coalition governments – shifted the balance from a parliamentary democracy to a so to speak governmental democracy. The long-awaited intervention of the Constitutional Court with the decision no. 360/1996 finally sanctioned this practice as unconstitutional, as in violation of both the prerogatives of Parliament – as the main law-making body – and the certainty of law.
Beside the abuse of the law decree, a more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle, such as the 2006 Winter Olympics in Turin or the 2015 Expo in Milan (just to mention a few). In such circumstances the connection to the extraordinary character of the situation is lacking; nevertheless, the government exercises all the same emergency powers.
Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State, according to some scholars) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.
The active engagement of President Napolitano in the last crisis of government (starting from the Berlusconi’s one in 2011) and as a strong advisor of governments seem to have proved right Esposito’s theory according to which – since the president is given the same powers as the monarch in the constitutional monarchy – it is up to him to actively intervene in situations of emergency. The Constitutional Court too rises some concerns, with respect mainly to a certain number of decisions marking a straightforward intervention in the competence of Parliament and government, when balancing spending review and rights’ protection.
It is convenient to consider further this twisting in the balance of powers in the light of the separation of powers and on the qualification of the Italian present-day situation as within the constitutional legal order of within the emergency.
As the conference on state of exception approaches, the first papers are available in the conference paperroom, beginning with Elisa Bertolinis text on the Italian experience of democracy and state of exception. You can access the paperroom here.
Please take note, that the papers are draft versions for conference use only. They may not be cited elsewhere. Comments are welcome.
When Carl Schmitt wrote about the „emergency“ („Ernstfall“) as being constitutive for the ultimate dualism of friend and foe, he outlined a theory of the state of emergency. Such emergency was repeatedly being invoked during the debate on terrorism in West Germany in the 1970s.
During that decade, the conflict between the Red Army Faction and the West German state proved to be a paradigm for the growing political polarization of communications in German society. It can be said, the terrorism-debate was the struggle over the state of the nation, and so the discoursive, political and moral boundaries were heavily disputed.
Both sides of the confrontation were also engaging in specific performances/performative acts that adressed a wider public – it was all about a demonstration of power. More than that, it showed that Carl Schmitt’s notion of political decisionism comes to bear on the reality of the states’ dealing with terrorism as well as with the terrorists’ “propaganda of the deed”.
Often the reactions from the West German executive authority were called an “undeclared state of emergency”. However, in political discourse of that time “Ausnahmezustand” became a frequently used term that implied a level of wishful thinking and therefore had a mobilizing quality. In recent publications I have called the effects and affects of Moral Panics during the German Autumn a “felt/perceived state of Emergency” (gefühlter Ausnahmezustand).
In my presentation at the Kolloquium at DHIP I therefore want to focus on the discoursive and performative qualities of a state of emergency during the German Autumn of 1977 and how this was referred to on both sides of the confrontation.
Im Rahmen der diesjährigen Tagung zum Ausnahmezustand zeigen wir den Dokumentarfilm „Endstation Bataclan“ von Alexander Smoltzcyk und Maurice Weiss. Der Film läuft am 13.11.2017 um 20:00 Uhr in den Räumen unseres Partners, des Goethe Instituts Paris. Alle wichtigen Informationen rund um den Film finden sich hier. Um Anmeldung wird gebeten.
On November 13, 2017, 8 p.m., we will present the documentary „Endstation Bataclan“, produced by Alexander Smoltzcyk and Maurice Weiss. The film is an important part of this year’s conference on state of exception. It will be shown at the site of our conference partner, the Goethe Institute Paris. Further information on the presentation can be found here. Registration is required.