What are the facts behind the case?
In the context of the Arab Spring, the information published at the end of August 2011 in the Wall Street Journal—highlighting the role played by the French company Amesys vis-a-vis the Libyan intelligence services in the framework of an agreement for the supply of a sophisticated communications surveillance system—revealed to the general public the existence of dealings that had previously remained undisclosed.
Throughout 2011, first in Tunisia, then in Egypt, Libya, Yemen, Bahrain and Syria, people rose up against long-standing authoritarian regimes to make their demands for social justice and greater respect for individual freedoms heard. In each of these countries, the Internet was one of the main vectors of popular protest: calls for demonstrations were widely relayed by social networks, as was the information that enabled the media to cover these uprisings and the brutal repression that befell human rights defenders, opponents and, more generally, all citizens who took part in the uprising.
In this context, the sophisticated surveillance tools used by repressive regimes proved to be potent weapons for targeting, arresting and suppressing those who rose up in a peaceful manner.
Media revelations brought to light a hitherto little-known trade in surveillance technology. FIDH, which accompanied human rights defenders during the uprisings on a daily basis, considered regimes’ use of these weapons to exercise indiscriminate repression against their people as evoking the essential question of the responsibility of companies engaged in such a trade. Can such surveillance equipment be sold with impunity to repressive regimes without ever being held accountable for such deals? To what extent does the supply of programmes enabling Muammar Gaddafi’s intelligence services or, a few years later, the Egyptian regime, to better repress peaceful demonstrators not amount to complicity that could be classified as criminal? The question raised is also that of the complicity of companies in the commission of international crimes, in this case the crime of torture and enforced disappearance concerning Egypt.
How did the legal proceedings begin?
On 19 October 2011, FIDH and LDH decided to file a civil party complaint (plainte avec constitution de partie civile) for complicity in acts of torture, implicating the Amesys and the company’s executives or managers who allegedly participated in the conclusion and implementation of this commercial agreement concluded in 2007.
This complaint is based on the principle of extraterritorial jurisdiction of French courts, which allows the French judge to exercise jurisdiction over crimes committed abroad, regardless of the nationality of the perpetrators or victims, in application of the United Nations Convention against Torture of 10 December 1984. In this case, the presence in France of the company Amesys, which at the time of the events had its registered office in France, justified the jurisdiction of French justice for complicity in the crime of torture, even though this crime was perpetrated abroad, by foreigners as the main perpetrators (agents of the Libyan State having used the surveillance equipment supplied by Amesys, which was alleged to have acted as an accomplice) against Libyan victims.
However, the opening of the judicial investigation came up against a major obstacle: the fierce opposition of the Paris public prosecutor’s office, which issued an indictment opposing the opening of the judicial investigation and then appealed the order of the investigating judge, who had decided not to follow the arguments of the public prosecutor’s office and to open a judicial investigation. This appeal was finally rejected by the Investigating Chamber of the Paris Court of Appeal, which, in a decision rendered on 15 January 2013, confirmed the opening of the judicial investigation, which has been ongoing since that date.
A few years later, on 9 November 2017, following the revelations of the newspaper Télérama which had brought to light the existence of a contract concluded by Amesys – now Nexa Technologies – with the Egyptian regime, in 2014, FIDH and LDH, with the support of the Cairo Institute for Human Rights Studies (CIHRS), both of which are FIDH member organisations, filed a denunciation with the crimes against humanity unit of the Paris public prosecutor’s office for complicity in torture and enforced disappearances, again on the basis of the extraterritorial jurisdiction of French courts. A judicial investigation was opened one month later, in December 2017.
What have been the most significant stages of the legal proceedings?
In January 2013, FIDH and LDH constituted as civil parties five Libyan victims, whose testimonies had been collected by FIDH during a mission to Libya in December 2012. All of them had been arrested and tortured during the uprising of the Libyan population against Muammar Qaddafi’s regime after having been identified via electronic communications. In June and July 2013, thanks to the support of FIDH, these five victims came to France to testify before the investigating judge in charge of the judicial investigation opened in January 2014 before the new specialised unit for crimes against humanity, war crimes and offences within the Paris Tribunal.
In December 2015, a new civil party was brought before the investigating judge. During his hearing, he detailed the acts of torture he had undergone, and the interrogations relating in particular to the content of electronic communications exchanged before his arrest. Unlike the other civil parties heard in June and July 2013, this new victim was arrested and tortured at the end of 2009, well before the uprising of the Libyan population against the regime of Gaddafi, which suggests that Amesys’ Eagle mass-surveillance system was used by the Libyan security services as early as 2009.
In February 2015, the investigating judge had Libyan archives from the internal security services in Tripoli added to the file, showing the surveillance carried out by the security services on activists, opponents, etc., based on their email addresses and other identifiers.
In May 2017, Amesys was placed under the status of assisted witness for complicity in acts of torture.
In the Egyptian case against Nexa Technologies, FIDH was heard as a civil party on 30 January 2018.
In October 2019, FIDH and LDH filed observations and requests for action with the investigating judges in the case against Amesys.
Why is yesterday’s decision by the investigating judges important?
The indictment of four executives of these two companies is a considerable step forward in this case, which has been awaited for many years by the complainant organisations and by the civil parties involved in these proceedings.
This decision constitutes the recognition by French investigating judges of the possibility of determining the role of surveillance companies in human rights violations from the perspective of complicity.
What are the next steps?
The judicial investigation will follow its course. The indictment of the four executives could precede that of the two companies as legal entities. It will be up to the investigating judges to decide when to close the investigation, and then to decide whether to refer the defendants to trial before a Criminal court (cour d’assises) or to dismiss the case.