“What the devil was he doing on that ship?” Everyone recalls the cry of anguish from the character Géronte in one of Molière's plays, when the old man is convinced that his son has been taken hostage on the open sea and he wants the justice system to intervene. Less well-known is the reply that Scapin, the sceptical and sarcastic valet who is the eponymous central character of 'The Trickeries of Scapin', gives: “Justice on the high seas? Are you joking?”
Yet last week French and Italian non-governmental organisations did indeed go to court seeking to bring a little justice back to the Mediterranean.
On Thursday April 25th, 2019, groups including Amnesty International France, Médecins sans frontières (MSF) and the migrant support group Groupe d'Information et de Soutien des Immigrés (GISTI), filed a plea at the administrative court in Paris against the French state. The aim was to contest the decision by the defence minister, Florence Parly, to give six small craft to Libya to help in the “fight against clandestine immigration” despite the fact that the coastguards in that country bring back all the migrants that they intercept to the regime's inhumane detention centres, despite the fact that there is still an embargo on supplying arms to the country once controlled by Colonel Gaddafi, and despite the fact that the capital Tripoli has for several weeks been in the grip of a genuine civil war.
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“With all that's going on at the moment, this decision, which didn't make sense in the first place, has now become a tragic farce,” says Michaël Neuman, director of research at MSF. Cécile Coudriou, the director of Amnesty, says: “France has made international commitments which it can't breach with complete impunity.”
Bought by France from the Sillinger company based in Toulon on the French Mediterranean coast, but quickly offered free to the “Libyan Navy”, these 12-metre boats are what the French Ministry of Defence describe as “fast semi-rigid small craft” or speedboats able to carry up to 16 or 18 people. “Ideal for transporting troops or heavy and bulky equipment,” say the manufacturers in the description of their boats.
As the handing over of the first two craft was initially scheduled for this May or June, the NGOs sought both an injunction to suspend the first delivery and also a ruling on the wider merits of the action. This latter action is aimed at cancelling the French delivery of the boats to Libya altogether, a process that could take months, even assuming the courts rule that the NGOs have the legal standing to bring such a case.
The NGOs say it is the first time that the administrative courts in France have been asked to consider the legality of a free gift of material to a foreign army in this way.
So what are their arguments? First of all, even if the word “complicity” is not used in their legal arguments, the associations criticise France for handing over the speedboats whose use will “contribute directly to blatant violations of the fundamental rights” of migrants, and will actively favour and make more lasting such violations, whether these take place in the detention camps where the survivors are dumped by the coastguards (and in which there are well-documented cases of torture and rape) or even during the interception of migrants' vessels at sea. These are “notoriously brutal” episodes which “sometimes lead to drowning”, as a video case study from The New York Times recently showed. It is, incidentally, impossible to speak of “rescues”when there are no “safe ports” to disembark. “Libya cannot be considered a place of safety for the purpose of disembarkation following rescue or interception at sea ...” stated a December 2018 report by United Nations representatives.
As a result of the recent offensive in early April by General Khalifa Haftar against the international community-backed government in the capital Tripoli, the largest detention centres are now caught up in the crossfire, with some detained migrants and refugees reportedly having been wounded by bullets. And the United Nations Refugee Agency (UNHCR) is not able to evacuate all the migrants trapped by the fighting.
In a statement on April 9th the UN'HCR's Deputy Chief of Mission in Libya, Matthew Brook said that people rescued or intercepted at sea should not be sent back to Libya. He also said: “Many refugees and migrants in Libya endure terrible depravations. They are now at grave additional risk, and must not be overlooked in the effort to get all civilians out of harm’s way and to places where they are safer.”
In their argument to the court, the NGOs point to article 2 of the European Convention on Human Rights, which guarantees the right to life, and article 3 which prohibits inhuman or degrading treatment. These articles “not only place an obligation on a [signatory] state to not be the author of behaviour which could lead directly to the violation of these principles, more generally they also impose [a duty] to not be at the origin of decisions, even indirect ones, which could be liable to expose people to this [inhuman or degrading] treatment,” say the NGOs in their deposition.
The human rights groups also attack the handover of the boats from a second standpoint. “The decision in dispute without doubt involves the delivery of war equipment and equivalent materials,” writes their lawyer Lionel Crusoé. This is because even without any weapons aboard these boats will reinforce the Libyan navy's capacity.
As a result the NGOs claim that the French government's action were a “misreading of the embargo which has been applied to Libya since the month of February 2011”, which stemmed from a UN resolution and which has since been adopted by the European Union.
Their deposition acknowledges that some exceptions are possible, for example the supply of “non-lethal material destined exclusively for humanitarian or protect usage”, but the NGOs argue that the supply of these fast craft does not fall under even a generous interpretation of these potential exceptions.
Moreover, an EU decision relating to Libya states that the transfer of “equipment liable to be used for the ends of internal repression” are prohibited. Lawyer Lionel Crusoé argues that this ban covers the current case.
The lawyer also points out that in a case in 2013 the UN considered that the delivery of several similar fast craft – including two made by Sillinger – to the authorities in the Ivory Coast had been carried out under a “misreading of the sanctions regime” that was in place at the time. Moreover, says Lionel Crusoé, the UN Security Council has already rejected a “demand for exemption from the state of Malta to … deliver some craft to the Libyan coastguards”. That was just seven months ago.
When asked by Mediapart about the destination and nature of the small craft, a French government source insisted on Thursday April 25th that: “The six [vessels] will be delivered to the Libyan Navy and not to the coastguards.” However, the source did not explain the significance of this distinction, not did they detail the means that France will employ to oversee the use of the craft after delivery.
“Semi-rigid boats are not considered as war equipment,” said the source. “So they don't come under the terms of the embargo.” The source added: “An analysis of the Libyan security context will take place before any action. But the [first] deliveries are indeed planned … for between now and mid-2019”. So far the government has not changed its plans, despite the legal action.
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- The French version of this article can be found here.
English version by Michael Streeter