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ORIGINAL FRENCH ARTICLE: Le Secret Défense: une Faille dans l’État de Droit

by Rosa Moussaoui and Stéphane Aubouard

Defense Secret - A Breach of the Rule of Law

Translated Tuesday 5 March 2019, by Henry Crapo

Published in l’Humanité on Tuesday, February 12, 2019

In many criminal cases that remain unresolved, the reason of State prevents the truth from being revealed, interferes with historical work, and hinders judicial investigations.

What is the connection between the massacre of Senegalese skirmishers claiming their pay on 1 December 1944 at the Thiaroye military camp near Dakar and the murder of two Radio France internationale reporters, Ghislaine Dupont and Claude Verlon, kidnapped by jihadists on 2 November 2013 in Kidal, in northern Mali, in the middle of a French military intervention? At 80 years’ distance, in the name of "reason of State", defence secrecy casts its shadow over these cases, preventing the manifestation of the truth, thwarting historical work, obstructing judicial investigations. However, there is no justification here for keeping, under seal of secrecy, documents that would shed light on these crimes: their declassification would not endanger State security.

The dark side of the Republic is studded with assassinations whose circumstances remain to this day unsolved, the list is long: Maurice Audin and so many other Algerian independence fighters; Mehdi Ben Barka, pillar of the Tricontinental and main opponent of King Hassan II of Morocco; the revolutionary Thomas Sankara, President of Burkina Faso; Dulcie September, representative of the ANC in France; Judge Bernard Borrel... The secret of defence has also long locked up the truth about colonial massacres, such as those perpetrated in May 1945 in Algeria, Constantine, or on 17 October 1961 in Paris. It still interferes with the judicial investigations into French complicity with the genocidal forces in Rwanda in 1994.

The government announces a reform for this year

In all these cases, sensitive documents, classified variously at three levels - confidential defence, secret defence, top secret defence - are most often inaccessible or unusable. It is the State, as both judge and party, that decides whether or not to declassify them. Too often, when they are not simply redacted, documents that are not very embarrassing and of no interest are transmitted to the courts: "the pink library", to use the expression of Judge Marc Trévidic.

The misuse of defence secrecy creates a grey area at the intersection of the rule of law and the state of emergency. The self-checking introduced by the State in this area since 1998, with the creation of an administrative commission with limited prerogatives, remains incomplete and contrary to France’s European commitments. The government announces a reform of defence secrecy for 2019 and promises to facilitate access to historical archives. But a simple adaptation of the nomenclature and procedures in force cannot meet the major democratic challenge posed by the use of defence secrecy.


Verlon-Dupont, presidential amnesia

Five years after the murder in Mali of RFI’s two journalists, the investigation is stalled. François Hollande, who had initially stated, in confidence, that he had some information, finally retracted his remarks.

On 2 November 2013 in Kidal, in northern Mali, Ghislaine Dupont and Claude Verlon were kidnapped and then murdered by a jihadist commando. Five years later, the investigation into the deaths of the two Radio France International (RFI) reporters was still not progressing. Even the hearings of François Hollande on 11 January 2018 and the one of Bernard Bajolet, the former head of the Directorate General for External Security (DGSE) from 2013 to 2017, a month earlier, added to the confusion. On 7 November 2013, a few days after the tragedy, the former President of the Republic told a RFI journalist that he had been informed of a telephone conversation during which a "planner accused an executor of destroying the goods", i.e. of having murdered the two journalists. A confidence that the head of the DGSE will later confirm to the same journalist. The two hearings, which brought nothing new, caused anger among the families of the victims. "We continue to make jokes about the world," says Marie Dosé, who represents the Association of Friends of Ghislaine Dupont and Claude Verlon. "Bajolet stammered that he wanted to protect the president’s credibility, not denying it," she recalls. François Hollande, on the other hand, became amnesiac, no longer remembering exactly these telephone monitoring stories. "We will have to be patient," the lawyer insists. There are still many grey areas, about the possible presence of a French army helicopter, about the alleged breakdown of the kidnappers’ vehicle, about information held by Malian officials. The relatives of the two murdered reporters continue to demand the complete declassification of the documents linked to this case.


Borrel, two states against a family

It took 22 years of hard fighting by the family of Judge Borrel, murdered in 1995 in Djibouti, for the Paris prosecutor’s office to admit that this was a criminal case.

On 19 October 1995, the partially burnt body of Judge Bernard Borrel was found 80 kilometres from the city of Djibouti. A few hours later, the French ambassador announced that the magistrate had "put an end to his life", even though the autopsy had not yet been carried out. For the family of the deceased, this is the beginning of a trying legal marathon.

Elisabeth Borrel and her two children resist. After twenty-two years of struggle, they obtained a first victory: on 13 July 2017, the Paris public prosecutor admitted, "in view of the latest forensic examinations carried out", that the Borrel case was "a criminal case". Between these two dates, lawyers Laurent de Caunes and Olivier Morice, as well as members of the Syndicat de la magistrature, ran into a wall of defence secrecy. Above all, they must face the unlimited resources of two States. Threats, intimidation and attempts at corruption are increasing.

The President of the French Republic, Jacques Chirac, and his Djiboutian counterpart, Ismaïl Omar Guelleh, did not hesitate to put pressure on judges, to fuel slander against the victim and all his relatives. "The challenge is for the citizen to understand that this secrecy does not only concern the army but society as a whole. Rather, this should be called a state secret that has been extended to all societal areas such as research, business and ecology," Judge Borrel’s widow insisted in our columns on December 14, 2017.

In this extraordinary criminal case, where the networks of Françafrique, international terrorism and the mafia intersect, the most difficult thing still remains to be done for justice: finding the motive for this crime, arresting the perpetrators and their sponsors.

S. A.

Sankara, in the sights of Françafrique

After the fall of Blaise Compaoré in 2014, Burkina Faso’s military justice system took over this case. It has a sequel in France, where a first batch of archives has been declassified.
On October 15, 1987, in Ouagadougou, an exhilarating revolutionary experience ended in the racket of the Kalashnikovs. The President of Burkina Faso, Thomas Sankara, was murdered, together with twelve of his companions. This crime was a prelude to the coup d’état that brought Blaise Compaoré, the "brother" in struggle who became the confidant of Paris, to power.

Sankara embodied the possibility of an Africa emancipated from neo-colonial control. It is this commitment that cost him his life and there is little doubt that French African networks were involved in his elimination. It took the powerful insurrection of the Burkinabè people, who ousted Blaise Compaoré from power in 2014, for an investigation finally to be opened in Burkina Faso by the military justice system. Entrusted to Commander François Yaméogo, it led to the indictment of 16 people, including Blaise Compaoré, whom the Côte d’Ivoire refuses to extradite, and General Gilbert Diendéré, former number 2 of the regime, now under arrest.

The investigation is now being extended in France, with the request for the lifting of defence secrecy and the rogatory commission entrusted to Judge Cyril Paquaux in Paris. In November 2017, during a visit to Burkina Faso, President Emmanuel Macron promised to declassify "all documents produced by French administrations during the Sankara regime and after his assassination". A first batch of archives from the Ministries of Foreign Affairs and Defence was sent to the Burkinabe investigating judge. These documents, says Jean-Patrice Yameogo, one of the Sankara family’s lawyers, reveal the names of "a few foreign political actors".

R. M.

Curiel, the shadow of the Algerian torturers

In 1978, a "Delta commando" shot dead this Egyptian anti-colonialist militant in Paris. He was involved in the struggles for Algerian independence and the end of apartheid in South Africa.

"We know the truth about his murderers but, in the name of defence secrecy, justice remains prevented by a common thread leading from General Aussaresses to President Giscard d’Estaing. "

These words from journalist Sylvie Braibant, daughter of Henri Curiel’s first cousin, speak volumes about the complicity channel that has guaranteed impunity for Henri Curiel’s murderers for the past 40 years. This Egyptian, Jewish and communist, a figure of the anti-colonialist struggle, fell on May 4, 1978, in Paris, under the bullets of the killers of a certain "Delta commando" nameof betrays its filiation with the OAS. During the Algerian war, Curiel took over from Francis Jeanson at the head of the network of suitcase carriers involved in direct aid to the FLN. He served those who fought against dictatorships in Latin America, where Aussaresses, after having served in Algeria, trained the torturers of Videla and Pinochet. Curiel’s solidarity also went to the ANC fighters, at a time when Paris was secretly concluding a lucrative nuclear contract with the racist regime in Pretoria in violation of the embargo. Curiel was suspected of being at the origin of the leak that made this market public....

Hated by the nostalgics of colonization recycled at the Elysée under Giscard, he was the target of networks of spooks linking former OAS soldiers to French mercenaries in the service of the apartheid regime. From the day before until the day after Curiel’s assassination, a certain Jean-Paul Guerrier, a "freelancer" in the Sdece’s action service (counter-intelligence), linked to Bob Denard, a friend of Aussaresses who had passed through South Africa, Argentina and Chile, was circulating in France. Ten years later, this same character was involved in the assassination in Paris of Dulcie September, the ANC’s representative to UNESCO. Over the past year, the investigation into Curiel’s murder has been resumed.

R. M.

Ben Barka, criminal pact between Paris and Rabat

More than half a century after the disappearance in Paris of the Moroccan socialist leader, Hassan II’s opponent, the case is bogged down. From de Gaulle to Macron, the lifting of the defence secrecy has been refused.

On 29 October 1965, two French police officers arrested Mehdi Ben Barka outside the Lipp bar in Paris. They’re getting him into a car. The former socialist president of the Moroccan Consultative Assembly thinks he has an appointment with director Georges Franju. It is in fact an ambush organized by the Moroccan secret services. No one will ever see this pillar of the Tricontinental, the main opponent of King Hassan II, alive again.

Fifty-three years later, the identity of the sponsors and perpetrators of his assassination remains shrouded in mystery. However, the Ben Barka family has never ceased to demand justice and truth. As early as 1966, a first complaint for "kidnapping" was filed by Abdelkader Ben Barka, the victim’s brother. Two trials were then held before the Assize Court of the Seine, in 1966 and 1967. In vain. In 1975, a new complaint was filed by his son, Bashir Ben Barka, for "kidnapping, kidnapping and murder". It is still under investigation before the Paris TGI...

For half a century, the presidents of the Fifth Republic seem to have been spreading the word. Under de Gaulle, Pompidou and Giscard d’Estaing, all requests for the lifting of the secrecy of defence are opposed by means of non-receipt. Under Mitterrand, part of the file - already known - was made available to the prosecution, but the most sensitive pieces remain in the background. It will remain inaccessible for nearly a quarter of a century. On 2 May 2016, under the Dutch five-year term, a new investigating judge, Cyril Paquaux, tried to break the taboo and asked again for the declassification of documents. But the 89 documents he received are unrelated to his request. After Macron’s election, the same judge repeated his request. To date, it has not been answered.

S. A.

In Rwanda, France on the side of genocidaires

The lifting of defence secrecy on documents issued in 1994 by the political authorities and the army would shed light on France’s involvement with Hutu extremists.

Twenty-five years after the "apocalypse", as most survivors say, the presence and involvement of France and its army with the forces that planned and committed the last genocide of the 20th century have been established. On 6 April 1994, in Kigali, the attack on President Juvenal Habyarimana’s plane, on his return from Arusha, Tanzania, where he had reluctantly concluded a peace agreement with the Tutsi rebels of the Rwandan Patriotic Front (RPF), gave the signal for the Hutu extremists to take power.

The massacres began immediately and were to continue until July 1994, killing 800,000 to 1 million Tutsis and Hutus civilians. Paris’ complicity with the genocidal forces has been or is still the subject of several complaints to the French courts. Carried by Tutsi survivors or associations, these complaints against X target political and military leaders suspected of having remained passive in the preparation or execution of the genocide. Or, worse, to have provided logistical support to the genocidal authorities by facilitating, in violation of the embargo, arms deliveries to the Rwandan Armed Forces, at war with the RPF, whose progress was stopping the massacres.

A bad sign, last summer, thirteen years after the opening of a judicial investigation, the investigating judges of the genocide unit of the Paris court decided to close the investigation into the attitude of the French soldiers of the "Turquoise" operation towards the Bisesero massacre. Without requiring any indictment (see our October 29, 2018 edition). But other investigations, such as that of investigating judges Marc Trévidic and Nathalie Poux into the attack of April 6, 1994, made it possible to declassify documents from the French services that contradicted the official account.


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