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Opinion

10 Mar 2022

Author:
Claire Tixeire, European Center for Constitutional & Human Rights (ECCHR) and Anna Kiefer, Sherpa

Corporate complicity in crimes against humanity: the Lafarge Case

“Knowingly paying several million dollars to an organization whose sole purpose was exclusively criminal suffices to constitute complicity, regardless of whether the party concerned was acting to pursue a commercial activity.”
French Supreme Court, 7 September 2021

Prior to last September, such a quote was more likely to be attributed to human rights lawyers challenging corporate impunity. Instead, this was the ground-breaking affirmation from the Supreme Court of France, when it ruled on 7 September 2021 that French multinational Lafarge could face charges of complicity in crimes against humanity for having transferred millions of euros to various armed groups in Syria, including to the Islamic State, while crimes against humanity were being perpetrated.

The Lafarge scandal before French courts

This decision is the latest development in a legal saga that began in 2016 when Sherpa and the European Center for Constitutional and Human Rights (ECCHR) filed a criminal complaint together with former Syrian Lafarge employees against the company, along with its former CEOs and directors.

From 2012 to 2015, Lafarge – now “Holcim,” a world leader in manufacturing construction materials – made the decision to continue operations within its new, massive cement factory in Northeastern Syria despite the war raging at its doorstep, the embargoes on Syria issued by the European Union, and the blacklisting by the United Nations Security Council of several armed groups that were locally active. Confronted with a series of revelations, Lafarge commissioned its own inquiry, and then acknowledged in early 2017 that its subsidiary Lafarge Cement Syria had entered into a series of different “arrangements” with armed groups in order to maintain its factory operations. The ongoing judicial inquiry later established these “arrangements” amounted to the transfer of at least 15 million US dollars to intermediaries and armed groups, including the organization ‘Islamic State’.

In 2018, Sherpa and ECCHR submitted a legal memorandum to the investigative judges, highlighting the legal framework and facts at hand which support the claim there was enough serious, corroborating evidence to charge Lafarge with complicity in crimes against humanity. Two months later, Lafarge was formally charged, and the company appealed. In November 2019, the Investigative Chamber of the Paris Court of Appeals found there was sufficient evidence to claim the Islamic State and other affiliated groups committed crimes against humanity in the vicinity of the cement factory when it was still being operated by Lafarge – which, at the time, was the first such recognition by a judge. The court recognized Lafarge had financed the Islamic State but concluded the financing did not manifest Lafarge's intention to associate itself with the crimes perpetrated and the company could thus not be complicit in crimes against humanity. The Supreme Court, in a ground-breaking reversal, rejected the Court of Appeals’ reasoning.

A ground-breaking precedent on corporate complicity in crimes against humanity

The innovative significance of the Supreme Court decision regarding complicity in crimes against humanity touches on three fronts.

Firstly, the case defines the legal contours of the “intention” of the accomplice of crimes against humanity. The Supreme Court found “it is sufficient that [the accomplice] has knowledge that the principal perpetrators are committing or are going to commit such a crime against humanity and that by his aid or assistance, he facilitates its preparation or commission.” (at 67) In short, an accomplice must know the principal perpetrators are committing or planning to commit crimes, but does not need to share their intention to commit the crimes.

Lafarge had argued it could not be deemed complicit in the crimes, as it did not intend to contribute to them, and only sought to continue the operation of its factory. The Supreme Court categorically rejected this argument by clarifying the distinction between intention and motive: “[i]t does not matter that the accomplice acts with a view to pursuing a commercial activity, a circumstance that relates to the motive and not to the intentional element.” (at 82)

Secondly, it is the first time the Supreme Court ruled on the application of the complicity in crimes against humanity standard to a legal entity, and not to an individual. French law provides for the criminal responsibility of companies, and the Court found that no distinction between legal and natural persons needed to be made on this front.

Thirdly, never before in the world had such a charge been leveled against a holding company, particularly for crimes committed abroad via a subsidiary. In this case, the amount of evidence in the judicial inquiry that emphasized the large degree of financial and operational control of the parent company over the subsidiary’s activities and decisions was critical.

Conclusion

Though the case reached the Supreme Court, the legal saga continues: on the basis of the Supreme Court’s findings, the Investigative Chamber of the Paris Court of Appeals has been summoned to decide again on the matter of complicity in crimes against humanity.

The developments in the Lafarge case will be closely followed by corporate actors active in armed conflict zones and war economies. If accomplice criminal liability of mother companies for grave crimes carried out abroad via their subsidiaries becomes an enforceable legal tool before domestic courts in France, this is likely to both influence the decisions of multinational groups in France and beyond, and inform the approaches of other jurisdictions and legislatures across the world.

With the world watching events in Ukraine unfold, companies with operations in the region would be advised to take close note of this ruling and the potential reputational, legal and financial costs of pursuing commercial gain while turning a blind eye to their potential complicity in human rights violations.

By Claire Tixeire, Senior Legal Advisor at the European Center for Constitutional and Human Rights (ECCHR), and Anna Kiefer, Advocacy and Litigation Officer at Sherpa