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31 Aug 2018

Claire Tixeire, Legal Advisor, European Center for Constitutional and Human Rights

Can the Lafarge case be a game changer? French multinational company indicted for international crimes in Syria

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The story of the multinational corporation Lafarge in Syria could be one more blatant illustration of companies putting economic and strategic interests ahead of human rights. Or it could be a game changer. The corporate group has been indicted for complicity in crimes against humanity, and eight of its former executives, including two former CEOs, have been charged with criminal offenses. There are reasons to believe that the Lafarge case in France will mark a turning point in the desolate landscape of impunity that usually surrounds activities of corporate actors in conflict zones. The ongoing formal investigation was opened in response to the criminal complaint filed in Paris in November 2016 by eleven former employees, together with Sherpa and the European Center for Constitutional and Human Rights (ECCHR). The legal action argued that Lafarge and its subsidiary Lafarge Cement Syria had to be investigated on charges of complicity in crimes against humanity, financing of a terrorist enterprise, deliberate endangerment of people’s lives and working conditions incompatible with human dignity.

In an exceptional move, the French investigative judges issued a series of indictments between December 2017 and June 2018, thereby acknowledging the seriousness of the allegations and bringing the inquiry one step closer to a possible trial.

Outstanding evidence

Strategic human rights litigators know too well the limits of law in regulating corporate actors’ responsibility. In particular when activities of subsidiaries are involved, but also given powerful influences on political willingness to prosecute, a case is likely to be dismissed before it can even start. An asset in this case was that the overwhelming evidence left little room for doubt that top executives of the French multinational Lafarge, the world’s leading cement manufacturer since its 2015 merger with Holcim, and which had secured the largest foreign investment in Syria outside of the oil sector, were likely implicated in illegal activities in Syria.

Thanks to former employees determined to speak up and the investigative work of Syrian news outlet Zaman al Wasl and French journalist Dorothée Myriam Kellou, it was revealed at what price Lafarge maintained its massive cement factory running in Jalabya (northeastern Syria) from 2012 to 2014, despite the many armed groups waging war at its doorstep.

While other multinationals like Total or Schneider Electric closed their activities in Syria in 2011 and 2013 respectively, due to the conflict, security concerns had Lafarge send its expatriate employees away and its French directors move to Egypt and Jordan in 2012. But the corporation reportedly put pressure on the local Syrian employees to continue coming to work. Early on, employees voiced concerns to management that they were risking their lives to come to work having to cross armed checkpoints, and that they were facing death and kidnapping threats at and around the factory. They explained being told they would be dismissed without compensation should they not show up - which happened to some. Kidnappings of employees started in August 2012 and peaked when nine of them were abducted for a month on their commute to work – for a ransom Lafarge ended up paying. However, the company did not revise its decision to keep the factory open.

Documents obtained by Syrian and French newspapers involving communication between French Lafarge directors and their subsidiary’s staff provided striking evidence. They indicated that the company had hired intermediaries to negotiate with and finance local armed groups, including the so-called “Islamic State” (IS). As the scandal caused by these revelations pushed Lafarge to conduct an internal investigation and the French judiciary decided to investigate the complaint’s allegations and hear the protagonists, evidence grew exponentially. Revelations have brought the amount of the payments Lafarge made to various armed groups to an alleged 13 million euro.

According to Lafarge, it was a matter of making sure that trucks and staff were able to cross the checkpoints surrounding the factory - a region that was first controlled by the Kurds and from 2013 fell under IS control. But even as the battle between the Kurds and IS in Kobanȇ, only 50 km away from the plant, caused hundreds of deaths in July 2014, the workers continued being called to work, after a short pause in the factory’s activities. Jean-Claude Veillard, ex-director for security at Lafarge, commenting on the suicide bombing that killed four at a checkpoint 10 km from the factory that same month, told investigators: “[f]rom my perspective, this attack 10 km away doesn’t exist. […] Now, maybe a guy blew himself up. In no case was there a risk for the employees or for the factory.”[1]

Yet, less than two months later, IS launched a violent armed attack on the plant only for employees to realize there was no evacuation plan in place. As most employees used commute busses to come to the factory, the absence of an evacuation bus left them stranded at the plant. They barely managed to flee, packed in small private cars. One explained, “If I had run away one hour later I would not be able to play with my daughter today. Daesh would have cut our heads. … I cannot believe that I worked six years for Lafarge and they could not give us cars to leave the plant.”[2]

Law, politics and power

Human rights cases are rarely a question of law alone, they are about power. On the legal front, the complaint filed in 2016 argued that French law, which provides for corporations – as legal persons – to be held criminally liable, had been violated. But the scandal surrounding Lafarge’s financing of a group put on a terrorist list – and one that claimed responsibility for the November 2015 attacks in Paris – meant the case gathered exceptional attention from the media and French politicians. The French Minister of Economy himself filed a complaint against Lafarge for violating the EU sanctions against Syria.

Suddenly – and unusually so – a Western multinational was unable to wholly evade legal scrutiny for the activities of its subsidiary abroad. 

Bringing human rights back to the center of the case

In September 2017, French businessman Bruno Pescheux, then-director of Lafarge Cement Syria, in the context of the judicial inquiry admitted to the French police that IS received around 20,000 euro per month from his company between 2013 and 2014. There are also allegations that Lafarge purchased large amounts of oil and pozzolan from IS to run its massive factory’s production and may have sold them cement. As the sale of natural resources accounts for 80% of IS’s financing, the contribution of Lafarge to the group was most likely not negligible.

The financing of terrorism became the focus of the scandal, if not to say its driving force. Yet, it would be a setback for the legal case to stay locked within the counter-terrorism paradigm. Counter-terrorism legislation usually prioritizes national security over human rights and civil liberties – at times even putting them wholly aside. 

Combating terrorism is indeed primarily a matter of state security based on a government’s political agenda – which can fluctuate with time. Human rights, however, have been built to protect the inalienable rights to which a person is entitled by virtue of being human, regardless of any political agenda. Reaffirming the fundamental superiority of human rights norms over fluctuating counter-terrorism regimes has been at the heart of ECCHR’s and partners’ work.

ECCHR and Sherpa worked to bring the employees and the human rights violations back to the center of the case. The first achievement was for the former directors to be indicted not just for financing of terrorism but also for endangering the lives of their workers and for work conditions that are incompatible with human dignity.

In May 2018, the two organizations filed a legal opinion to the investigative judges arguing at great length why Lafarge should be charged with complicity in crimes against humanity. At the time Lafarge financed IS, the murders, widespread sexualized violence, kidnappings, and other atrocities that the armed group perpetrated in Syria constituted crimes against humanity. They were systematic planned attacks against specific groups of the civilian population – as concluded in the EU Parliament resolution of 15 March 2018. In financing them, Lafarge empowered IS and is suspected to have become complicit to its crimes. Evidence suggests that Lafarge not only may have failed to take the necessary steps to either evacuate or appropriately protect its employees, but it may have pressured them to come to work, thereby possibly exposing them to kidnappings, disappearances and attempted murder – elements that may establish such complicity.

While Lafarge may argue that it never had the intention to contribute to such crimes, this does not necessarily have to be a decisive factor in the proceedings: in the Nazi collaborator “Papon” case of 1997, the French Supreme Court’s judgment established that complicity in crimes against humanity does not require supporting the ideology of the principal perpetrators, nor is it necessary for the accomplice to know the specific crime was being planned and actually perpetrated.[3] What matters, though, is knowledge that crimes are being carried out and that one’s conduct would contribute to these crimes being committed.

As partially revealed in the judicial inquiry, Lafarge and its directors were allegedly not only notified of the dangers and crimes directly threatening its employees, it is also very difficult to argue that they could, at the time, have ignored the systematic crimes committed by IS in the country.

In line with these arguments, on June 28, 2018, the judges indicted the parent company for complicity in crimes against humanity and deliberate endangerment of people’s lives.

The French flag 

There are multiple double standards in this case reminiscent of colonial mentality. During a hearing by the investigators before his indictment, Christian Herrault, former Lafarge Deputy Director-General Operations, shared his view on the 2013-14 developments: “One needs to see that Daesh [IS] had still not done anything outside of Syria, there had been no Charlie, no Bataclan… It was then a Syrian affair.”[4] Yet the crimes committed by IS at the time in Syria were already of unspeakably violent nature, with bodies of crucified individuals left for days on market places for propaganda, sexual enslavement of kidnapped Yazidi women carried out on a massive scale and arbitrary beheadings a common practice.  

Herrault further added that the French Ministry of Foreign Affairs had encouraged Lafarge to remain active. It was a matter of the “French flag” he explained.[5] Clearly the prospect of a French company manufacturing cement in post-war Syria was an attractive perspective, not just for Lafarge. At Sherpa and ECCHR’s request, former French diplomats, including the former Minister of Foreign Affairs, have been heard in the case, while revelations earlier this year showed that the French secret services met at least 33 times between 2012-2014 with Lafarge’s now-indicted former security director Veillard.

France’s duty to prosecute presumed offenders of human rights violations might mean having to look beyond Lafarge itself. Further indictments are possible before the investigation closes in the coming months. The parties will stand ready for trial. Lafarge was already ordered to give a 30 million euro security deposit, one which may guarantee appropriate damages are paid at a trial which seems increasingly likely. The next years will tell of the impact of the Lafarge case on holding corporate actors to account for human rights crimes and whether it was indeed a game changer.

[1] Soren Seelow, "Ce que révèle l’enquête judiciaire sur les agissements du cimentier Lafarge en Syrie", Le Monde, 20 September 2017, quote translated from French to English by the author: « Pour moi, l’attentat à 10 kilomètres n’existe pas. […] Maintenant, c’est peut-être un type qui s’est fait sauter. En aucun cas, il n’y avait un risque pour les employés et l’usine. ».

[2] Paul Waldie, "Transactions with terrorists", The Globe and Mail, 23 June 2018.

[3] Cour de Cassation, Chambre criminelle, 23 January 1997, 96-84.822.

[4] Ibid. Note 1, quote translated from French to English by the author: « Il faut voir que Daech n’avait alors rien fait en dehors de la Syrie, il n’y avait pas eu Charlie, le Bataclan… C’était alors une affaire syrienne ».

[5] Ibid. Note 1.