François Dubuisson Professor of International Law at the Free University of Brussels (ULB) On January 12, 2026, a modified version of the Yadan bill "aimed at combating renewed forms of anti-Semitism" was published, which intends to take full consideration of the remarks made by the Council of State in an opinion issued on May 22, 2025. It must be noted that most of the provisions most problematic for respecting freedom of expression and preserving free public debate on the Israeli-Palestinian conflict have been removed or substantially modified.
In particular, the following no longer appear in the new version of the bill:
- the unnecessary variations of the offense of glorifying terrorism, including the offense of presenting terrorist acts as "legitimate resistance"; ;
- the offense of relativizing terrorist acts, even without passing a favorable judgment on these acts; ;
- provocation to the denial of a State
- The extension of the offense of Holocaust denial to forms of comparison, analogy, and drawing parallels means that the most manifestly problematic aspects of the bill have been removed, which is a cause for satisfaction regarding the guarantee of respect for freedom of expression. However, certain aspects remain that raise questions about the precise scope of some provisions and the restrictions they might impose on free debate concerning matters of public interest. We will therefore examine in turn the new proposals concerning the definition of glorifying terrorism (1), calling for the destruction of a state (2), and Holocaust denial (3). We will also consider the retention of the bill's title (4).
1. Redefining incitement to terrorist acts and the glorification of such acts The initial proposal envisioned the creation of a series of standalone offenses based on the crime of glorifying terrorism, with the aim of further broadening this already very flexible interpretation of the offense. The amended text focuses on the existing offenses of inciting terrorist acts and glorifying such acts, suggesting changes to the wording intended to broaden their scope somewhat. The new text would read as follows:
«Inciting, directly or implicitly, acts of terrorism, or publicly glorifying such acts or their perpetrators, including, in cases of glorification, grossly downplaying or trivializing the acts, is punishable by five years' imprisonment and a fine of €75,000» (the added passages are underlined). The amended version contains two inconsistencies that make its interpretation ambiguous and therefore problematic for the respect of freedom of expression.
- direct provocation, even implicit provocation Stating that a "direct" incitement is also capable of being "implicit" appears inconsistent and contradictory. In its opinion, the Council of State noted that extending the concept of "incitement" to "indirect" forms "could in reality lead to an indeterminacy of the scope of the offense and to redundancy in legal classification, since, apart from acts that can be classified, under the same text, as the glorification of terrorism, no example of "indirect" incitement to acts of terrorism is given in the explanatory memorandum, nor, for that matter, does one appear easily conceivable." What held true for "indirect" incitement, a term present in the initial bill, also holds true for a fortiori for "implicit" incitement, which is merely a specific form of indirect incitement. It must be noted, however, that the reasoning of the Council of State is itself confused, ignores the content of the European definition of "incitement to terrorism," and that the true nature of the problem lies not in the "direct or indirect" nature of incitement to terrorism, but rather in the existence in French criminal law of an independent offense of glorifying terrorism, which requires no intent to incite the commission of terrorist acts. Indeed, as we have already explained at length in two articles, the criminalization of glorifying terrorism in the French Penal Code exceeds the limits set in European law for the criminalization of terrorist speech. Whether in the Council of Europe Convention on the Prevention of Terrorism or the EU directive on combating terrorism, only "public incitement to commit a terrorist offense" is criminalized, whether, as the texts specify, it is done "directly or indirectly." This means, as detailed in Article 5 of the European directive, that the "glorification of terrorist acts" is only punishable as a form of "incitement to terrorism" and provided that two conditions are met: proof of an intent to incite the commission of a terrorist act and the existence of a real risk of such an act being committed. The problem with the current penal text, therefore, lies in having an independent offense of glorifying terrorism, separate from the offense of "incitement to terrorism," for which the two aforementioned conditions derived from European law do not apply.
See F. Dubuisson, «The fight against terrorism and freedom of expression: the case of the repression of the glorification of terrorism», in Jacopin, S. and Tardieu, A. (eds.), The fight against terrorism, Paris, Pedone, 2018, pp. 177-196; F. Dubuisson, «War in Gaza and respect for freedom of expression: the case of the glorification of terrorism», Review Belgian international law, 2025, pp. 623-662 Council of Europe Convention on the Prevention of Terrorism, adopted on 16 May 2005, CETS No. 196, http://www.conventions.coe.int/Treaty/FR/Treaties/Html/196.htm, article 5.
Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, OJ L 88/6, 31 March 2017, Article 5.
Therefore, in order to take up the Yadan bill and suggest an amendment to article 421-2-5 of the Penal Code to bring it into line with the law of the Council of Europe and the EU, the following wording should be used:
«"Inciting, directly or indirectly, acts of terrorism, for example by glorifying such acts, with the intention of inciting the commission of terrorist acts and when such behavior creates the risk of such commission, is punishable by five years imprisonment and a fine of €75,000.".
Contrary to what the Council of State indicates, the problem does not lie in adding the term "indirectly" to specify the forms that "incitement" can take, but rather in maintaining a separate, much broader offense of glorifying terrorism, which is prohibited by European law and problematic for respecting freedom of expression. What appears inconsistent in the new text proposed by Caroline Yadan is the inclusion of "implicit" incitement as a form of "direct incitement," whereas European texts clearly distinguish between "direct" and "indirect" incitement, with only the latter formulation being able to refer to incitement in an "implicit" manner.
- The downplaying or trivializing of terrorist acts as a form of glorification: The amended text removed the introduction of a specific offense for downplaying, relativizing, or trivializing terrorist acts, but reintroduced it, in a mitigated form, in the proposed amendment to the definition of glorifying terrorism. This broadening of the concept of glorification makes it even more flexible and uncertain, since it is quite difficult to define what types of discourse would constitute "glimpsing" terrorist acts. This would imply both minimizing the seriousness of such terrorist acts and calling for "a favorable judgment" regarding them, which is the very essence of glorification according to the Court of Cassation. Again, such a broadening of the definition risks bringing into line with the justification of terrorism discourse that contextualizes acts of violence—historically, politically, legally—seeing it as a way to "minimize" the gravity of these acts and thus encourage a more "lenient," more "favorable" view of them, offering a form of explanation or excuse. Such a shift would present a clear danger to public debate of general interest, whether academic, political, media-related, or activist.
2. The call for the destruction of a state The proposed law wisely abandoned the idea of introducing an offense targeting "incitement to the denial of a State," which was intended to specifically protect the State of Israel. The revised text, however, retains the offense of "incitement to the destruction of a State," while adding clarifications suggested by the Council of State: such an incitement must concern a "State recognized by the French Republic" and must be made "in violation of the right of peoples to self-determination and the purposes and principles of the Charter of the United Nations." One remains skeptical about the "necessity" of introducing such an offense, the substance of which is likely already largely covered by existing offenses: incitement to violence based on nationality (Article 24 of the Law of July 29, 1881, on the Freedom of the Press); Apology for crimes, war crimes, and crimes against humanity (Article 24 of the Law of July 29, 1881, on the Freedom of the Press); incitement to terrorism (Article 421-2-5 of the Penal Code). That being said, it is subject to conditions that should restrict it to limits acceptable for freedom of expression, targeting only calls to use violent and illegal means to physically destroy a state, excluding legitimate debates on the transformation of state structures in conflict situations or mere militant slogans. In the context of the Israeli-Palestinian conflict, discussions on the various possible solutions, which could lead to the dissolution of the two existing states to form a single binational state, must remain fully protected by freedom of expression. It should be noted that, although the explanatory memorandum of the proposed law appears to only consider the protection of the State of Israel, the State of Palestine, recognized by France last September, will also be covered by the new offense.
3. Clarification and extension of the offense of Holocaust denial On this point, the revised text rejects the extension of the crime of Holocaust denial provided for in the initial bill which consisted of including any form of "comparison, analogy or rapprochement" with the crimes committed by the Nazis, with the avowed objective of punishing all types of comparison made between the policy of the State of Israel and Nazism.
The new text, adopting the suggestions of the Council of State, merely clarifies the forms that the notion of "denial" of Nazi crimes may encompass by mentioning "a denial, a minimization, or an outrageous trivialization of the existence of the crimes" in question (amendment to Article 24bis, paragraph 1 of the Law of July 29, 1881, on the Freedom of the Press). In this respect, the text is hardly innovative, since these are already forms of "denial" recognized by case law, and it is the terminology already used in the text of Article 24bis, paragraph 2, which addresses the denial of war crimes, crimes against humanity, and crimes of genocide recognized by a national or international court ("those who have denied, minimized, or trivialized in an outrageous manner…"). In this regard, it is important to clarify that gross minimization or trivialization must constitute forms of "contestation" concerning the "existence" of the crimes committed by the Nazi regime. Comparisons made between the policies of a particular state or group and those pursued by the Nazi authorities cannot therefore fall within the scope of the notions of "minimization" or "trivialization," as defined in Article 24 bis.
4. The problem with the title of the law: "renewed forms of anti-Semitism"«
Ultimately, the amended text of the proposed law is largely stripped of its substance, particularly its most "innovative" aspects in terms of criminal law, and its intrusive role with regard to freedom of expression. The initial text purported to significantly modify the penal arsenal in order to address a "renewed form of antisemitism" consisting primarily of an "obsessive hatred of Israel, which is regularly delegitimized and criminalized.".
Among the provisions retained in the amended text, none specifically addresses a "new" form of antisemitism. They define incitement to terrorism, specify the definition of Holocaust denial in a fairly conventional manner (without including comparisons to Israel), and include a new offense of inciting the destruction of a state, conceived in a completely generic way, potentially targeting the State of Israel, the State of Palestine, or any other state recognized by France. Therefore, nothing in the text justifies retaining the phrase "renewed forms of antisemitism" in the title of the law, a term based on a thesis largely refuted by reports and studies, particularly those of the CNCDH (National Consultative Commission on Human Rights). The title of the law should thus be amended to a more neutral formulation that reflects the actual content of the proposed provisions.
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