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Military Secrecy Gets in the Way of French Judges' Rafale Sale Probe: Report

Two French ministries have refused to declassify documents requested by the two judges' probing the deal, the French publication Mediapart reported.

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New Delhi: The two French judges who have been investigating France’s sale of 36 Rafale fighter jets to India have come across a road block – military secrecy. According to a report by French platform Mediapart, a discreet search of Dassault Aviation (makers of Rafale) offices was carried out in February this year. However, since then, the judicial investigation has been unable to get much further.

Judges Virginie Tilmont and Pascal Gastineau have been investigating the sale for the last one year, focusing on suspicions of “corruption”, “influence peddling” and “favouritism” in the 7.8 billion euro sale.

In February this year, according to Mediapart, a team from OCLCIFF, the anti-corruption unit of the French police, searched Dassault’s headquarters in Saint-Cloud, in the western suburbs of Paris, on the judicial panel’s request. When the publication asked Dassault about this, the company refused to respond.

In June, however, the judges found it difficult to proceed further –France’s Ministry of the Armed Forces and Ministry of Foreign Affairs refused to declassify certain secret documents on the sale that the judges had requested as part of their probe. The body that looks after declassifying documents of this sort – the Commission du Secret de la Défense Nationale (CSDN) – reportedly recommended to the ministries in two separate opinions that the documents should be left as is.

If the judges’ probe were allowed to continue without hurdle, it may have raised serious questions for François Hollande (who was the French president at the time of the sale in 2015), his successor Emmanuel Macron and their former minister Jean-Yves Le Drian, the Mediapart report said.

The French probe was launched in the wake of a series of investigative reports published by Mediapart in April 2021 about the deal, including the role of a middleman whose disclosures India’s Enforcement Directorate is reportedly aware of but has not bothered to investigate so far. These reports can be accessed here and here. Following the exposé, the French anti-corruption NGO Sherpa filed a complaint with the tribunal of Paris, citing “corruption”, “influence peddling”, “money laundering”, “favouritism” and undue tax waivers surrounding the deal.

Sherpa’s initial complaint, filed in 2019 (before the media exposés) was dismissed by Éliane Houlette, then head of the financial crimes prosecution unit the Parquet National Financier (the French judicial institution tracking economic offences). Only the second complaint in 2021 led to an investigation.

Now, the complainants at Sherpa are unhappy with the government’s alleged stalling tactics. “Once again military secrecy is used as window dressing to protect personal interests and ensure the impunity of top public or private figures united in the same fraudulent grouping,” William Bourdon and Vincent Brengarth, lawyers for the NGO Sherpa, told Mediapart.

In September 2021, the judges had sent “two requests for documents to be declassified to the armed forces minister at the time, Florence Parly, and to the then-minister of foreign affairs Jean-Yves Le Drian. The aim was to get hold of the classified documents held by the two ministries concerning the negotiations for the contract to sell the Rafale jets to India,” Mediapart reported.

In particular, the judges reportedly wanted to verify evidence revealed by Mediapart, that crucial anti-corruption clauses – required under Indian law – were removed from the contract.

The ministries began stalling right from the start, according to Mediapart. They took 7.5 months to locate the documents in question and send them to the CSDN. On June 8 this year, the CSDN advised against declassifying the documents, without giving any reason for it.

The CSDN’s conclusion, according to Mediapart, is “difficult to understand”. The report states:

“On the face of it, it is difficult to understand how they came to these conclusions. The law stipulates that the CSDN can advise against declassification in order to preserve “the country’s defence capacities”, to ensure the country “respects its international commitments” and to maintain the “safety” of military “personnel” who are on operational duty. Yet none of these three criteria seems relevant to the Rafale affair where the issue is simply one of determining whether corruption had taken place.”

Immediately after the CSDN’s advisories, the ministers in question refused to declassify the documents.

While the French Ministry of Armed Forces did not respond to Mediapart‘s requests for comment, the Ministry of Foreign Affairs said that the intergovernmental agreement on the sale of the Rafale aircraft “relates solely to the obligation of the French government to guarantee the delivery and the quality of this equipment”.

While Dassault Aviation was the French company involved in the deal, on the Indian side it was handled by Anil Ambani’s Reliance group.

India and Dassault had officially been negotiating terms for the purchase and manufacture of 126 Rafale jets right up to Prime Minister Narendra Modi’s publicly announced decision – on April 10, 2015 – to scrap that deal and replace it with the outright purchase of 36 fighters. While Manohar Parrikar, India’s defence minister at the time, was unaware of Modi’s decision until the very end, Mediapart investigations revealed last year that it appears Anil Ambani may have had an inkling of it.

While the French investigation into the deal continues, despite hiccups and alleged stalling tactics, no similar investigation has been launched in India. The Supreme Court had earlier rejected contentions that an FIR and probe were required on the matter, despite evidence revealed by a series of journalistic investigations.