Fig. 9.1
Objectives of the state doctrine for the prevention and response to CBRNE terrorism
In case of a serious crisis such as a pandemic or bioterrorist event, while the President of the Republic and the Prime Minister are responsible for political and strategic actions, the Ministry of Interior takes charge of operational conduct of the response, the Ministry of Health remaining responsible for health issues. The Ministry of Interior can activate a decision-making interministerial crisis committee (CIC), involving representatives of cabinets or directorate of a number of ministries, including the Ministry of Health, as well as representatives of the National Defence General Secretariat and the Government Information Service. The Ministry of Health also activates the public health crisis centre. In addition, the Ministry of Foreign and European Affairs relies on a crisis centre permanently activated, which intervenes when a crisis threatens the security of nationals abroad or involves a humanitarian situation.
9.3.2 Defence and Security Areas, a Key Level
Governmental plans are adapted at the level of ministries, defence and security areas, and departments (one of the main administrative divisions in France). Defence and security areas, seven for metropolitan France and five overseas, constitute a key territorial division in terms of crisis management. The prefects for the defence and security areas (PZDS), coming under the authority of the Prime Minister and of each of the ministries, are responsible for the preparation and implementation of national security measures, notably those regarding civil security and crisis management, and supervising actions from regional and departmental prefects.
They have been granted broader competencies in 2010 to improve planning and crisis management capacities (“Décret n°2010-224, 4 March 2010”). Among other missions, they set direction and priorities, relying on an assessment of risks and potential effects of threats, and are tasked with the translation of governmental planning at the level of the area, ensuring the implementation at the departmental level is effective. They organize operational surveillance, are responsible for the coordination with military authorities regarding national and defence security measures, and coordinate civil security means and actions. Regarding this last mission, according to Article R.1311-3 of the Defence Code, they can involve public and private means, requisitioning them if necessary. Reference health institutions are designated in each defence and security area (“Décret n°2005-1764 du 30 décembre 2005 relatif à l’organisation du système de santé en cas de menace sanitaire grave et modifiant le Code de la santé publique”).
The prefect for the defence and security area relies on an interministerial general staff (EMIZDS) and, in case of a crisis, can activate an operational centre at the level of the defence and security area (COZ), which ensures coordination of aid and rescue operations. A representative of the armed forces takes part in the EMIZDS. He relies on an inter-armed forces general staff for the defence area (EMIAZD), with close links with the EMIZDS, and organizes involvement of armed forces in civil defence missions.
9.3.3 Civil Security and the Involvement of the Armed Forces in the National Territory
Protection of the population and of the national territory is a priority. The French White Paper on defence and national security identifies a strategy involving both civil and military means. Armed forces must be able to contribute to the response, should a non-military crisis situation arise, whatever its nature. Law enforcement and civil security forces are first-responders, but armed forces can provide support, especially if public means are limited, inadequate, unavailable, or non-existent. Furthermore, the Ministry of Defence contributes directly to civil security and assistance, including in the context of public health threats, through civil security military units placed at the Ministry of Interior’s disposal, as well as with the Paris Fire Brigade and Marseille Marine Fire Battalion, or the Army Health Service and its hospitals.
Armed forces can intervene within the national territory in several contexts:
National security, including maintenance of law and order, armed forces participating in addition to law enforcement forces (police and gendarmerie);
Civil security, which addresses “risk prevention whatever their nature, information, warning of populations, as well as protection of persons, possessions and environment against accidents, disasters and catastrophes by implementing relevant measures and means under the responsibility of the State, “territorial collectivities” and other public or private persons” (“Loi n°2004-811 du 13 août 2004 de modernisation de la sécurité civile”);
Non-specific mission, such as making equipment available, with or without staff on secondment.
As explained in joint service concept CIA-0.7 n°163/DEF/CICDE/NP of 11 May 2007, on the national territory, among other missions, armed forces can contribute to the fight against terrorism, in particular international terrorism, the fight against arms trafficking, arms components and proliferation, the protection of sectors of vital importance, the protection of major events on the national territory, and aid and emergency relief for populations in a crisis situation.
Armed forces can assist following the appropriate administrative or legal requisition and, in specific cases, if there is otherwise a request for support. Administrative requisitions can occur in the context of maintenance of law and order, violation of public security in emergency cases, and intervening against terrorism or in the case of a major crisis on the national territory. Actions are then carried out under the responsibility of civil authority and under military command, in coordination with law enforcement authorities.
9.4 Legal Framework, Plans and Guidelines
9.4.1 Exceptional Situations and Serious Health Threats
Several dispositions govern exceptional situations which can call for the extension of powers granted to authorities and restrictions on fundamental liberties.
A decree by the Council of Ministries may proclaim a state of emergency under the Act n°55-385 of 3 April 1955, in the event of imminent danger arising from serious disturbances of public order or from events which by virtue of their nature and severity are deemed to be public disasters. Prorogation beyond 12 days may be authorized only by law. Comparing with the state of siege, civil authorities and not military ones are granted extended powers.
Article 36 of the 1958 French Constitution governs the state of siege, codified in Articles L.2121-1 to L.2121-8 of the Defence Code. Enacted by the Council of Ministers, it can be proclaimed only in case of imminent peril resulting either from a foreign war or an armed insurrection. Prorogation beyond 12 days may also be authorized only by law.
Besides, Article 16 of the Constitution extends the powers of the President of the Republic. It authorizes him to take measures required by the circumstances, “[w]hen the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat, and when the proper functioning of the constitutional public powers is interrupted”. The Constitution requires the President to consult the Prime Minister, Presidents of the Assemblies, and Constitutional Council (Conseil constitutionnel). The latter then issues an advisory opinion that the President can disregard but which is made public. Constitution Act n°2008-724 of 23 July 2008 introduced democratic control on duration. After 30 days of exercising such powers, the president of one of the two assemblies, 60 Senators or 60 Members of the National Assembly can appeal to the Constitutional Council for it to consider whether the conditions laid in the first paragraph still apply. Its decision is publicly announced. After 60 days and at any moment thereafter, the Council carries out such an examination as matter of standard procedure.
Legislators went further regarding the specific issue of preparing the public health system for major health hazards. Law n°2004-806 of 9 August 2004 on public health policy created a new preliminary chapter regarding serious health threats in the Public Health Code. Law n°2007-294 of 5 March 2007 on the preparation of the health system to deal with large-scale health threats added other articles; this chapter became Chapter I of the new title dedicated to serious health threats.
Article L.3131-1 of this chapter states that “in the event of a major health hazard requiring emergency action, in particular a possible epidemic, the Minister for Health may, by order with justification and in the interests of public health, prescribe measures proportionate to the risk incurred and appropriate to circumstances of time and venue, in order to prevent and limit the consequences of the possible threats on the health of the population”, and “[t]he Minister may empower the territorially competent representative of the State to take all the measures required for the implementation of these provisions”, which implies the necessity to have an adequate articulation between the Ministry of Health and the Ministry of Interior. Article L.3110-2 rules that justifications of measures taken in implementation of the previous article must be periodically reviewed.
Considering these two articles, in a published opinion about ethical issues raised by a possible influenza pandemic, the National Consultative Ethics Committee for Health and Life Sciences (CCNE) draws attention to the risk of extending restrictions on fundamental liberties “beyond what is strictly required to contain the influenza pandemic, either because of a maximalist (and therefore inappropriate) conception of the precautionary principle or as a demagogic concession” [2].
The title about serious health threats also includes dispositions to protect health professionals from potential civil liability in carrying out their duties following decisions from the Ministry of Health accordingly, on the one hand, and makes provisions for compensation of potential victims, on the other hand. Some dispositions also relate to the constitution and organization of a health reserve corps.
9.4.2 Preparation and Response Plans
ORSEC Civil Emergency Plan
In France, the pre-hospital strategy in case of mass casualties relies on regulation and advanced medical posts, with a controlled evacuation in order to protect hospitals from massive influx. It thus differs from the “scoop and run” strategy where the patient is immediately taken to hospital.
Revised by law n°2004-811 of 13 August 2004, the ORSEC plan, adapted in each department and defence and security area, specifies the global organization of civil security response in the case of mass casualties and inventorying public and private resources which could be used. Some measures are generic, while others address specific risks and threats (e.g. white plans).
White Plans
Complementary with the previous plan, each public or private health institution has to develop a White Plan (“Circulaire n°DHOS/CGR/2006/401, 14 September 2006”), a crisis response plan in the case of a mass influx of patients or victims or in the case of an exceptional health crisis situation. They are also obliged to have an operational crisis cell responsible for alert and crisis management (Articles L.3110-7 to L.3110-10 of the Public Health Code). White Plans include a CBRN component. CBRN risk management takes into account the geographical location of health institutions as well as emerging risks.
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