Will Lafarge be held accountable for alleged links to human rights abuses in Syria?
Autumn 2019 marked an important turn in the legal saga over whether French company Lafarge has been complicit in grave human rights violations in Syria. The Paris Court of Appeal issued its much-awaited decision on whether to uphold or to revoke the several indictments issued so far against the multinational. The results are mixed.
While complicity for crimes against humanity was dropped, the three remaining criminal charges against the mother company for crimes committed in Syria were upheld – a first in terms of corporate accountability in France.
The French cement-manufacturing corporation was first at the heart of a scandal in 2016 when it was revealed that it may have financed the Islamic State (IS) and other armed groups in Syria in order to maintain its factory plant running.
In November 2016, the organisations Sherpa and the European Center for Constitutional and Human Rights (ECCHR), together with 11 former Syrian Lafarge employees, filed a criminal complaint in Paris.
In 2017 and 2018, formal charges were issued against the company and its former executives. Lafarge acknowledged that in these years, its subsidiary 'provided funds to third parties to work out arrangements with a number of armed groups', including some internationally blacklisted as terrorist organisations. The judicial inquiry has since identified that these 'arrangements' amounted to at least 13 million euros.
After a lengthy legal inquiry, three investigative judges found there was serious and consistent evidence to formally charge the mother company for complicity in the crimes against humanity committed in Syria and Iraq by IS and other 'terrorist' groups in 2013-2014.
As plaintiffs in this case, ECCHR and Sherpa had filed extensive briefs putting forward first the international consensus affirming that the atrocities perpetrated at the time by IS did amount to crimes against humanity, and second arguing that by financing the group, Lafarge may have become complicit in these crimes.
However, the Investigation Chamber of the Court of Appeal decided to let go of this charge. Although rejecting most of the defense’s arguments, it based its decision on one ground: the mental element. It stated that complicity requires the willingness to be associated with or to take part in the perpetration of the main crime.
This interpretation of the law seems to contrast with the French criminal code and different French and international jurisprudence, for which the test to establish complicity is whether the suspect knew that her or his behaviour would likely contribute to the perpetration of the crimes.
In the shadow of the decision to drop the most incriminating charge, however, remains an unprecedented move: The Court of Appeal maintains the indictments against the company for financing a terrorist enterprise, for deliberately endangering the lives of its Syrian workers, and for violating a trade embargo. A mother company is criminally charged for the illegal activities that took place abroad via its subsidiary and via its executive leadership based at its then Paris headquarters.
The decision states that Lafarge, through its directors, gave permission and even may have instructed its subsidiary to carry out the alleged financial transactions; that the company could not have ignored the terrorist nature of IS at the time; and that it had effective authority over the Syrian employees of its subsidiary.
What makes this aspect particularly meaningful is that already eight former executives – including the former CEOs – have been charged with these allegations; though not all on all counts. The fact that it is in addition to the individuals involved that the company is indicted sends an unequivocal signal – or a warning – to corporations.
It suggests that the alleged criminal actions are not seen as isolated incidents to be blamed only on a few ‘rotten apples’. It shows an understanding by the French judicial system that there are structural issues within the corporation that may have created the incentive towards criminal action. In this case, the criminal acts were allegedly carried out in order to serve the strategic profit of the group: to stay active in Syria.
The law of criminal responsibility for corporations was passed in France to fill the accountability gap that would exist should only individuals be held to account. Tackling this aspect of accountability has a greater chance of serving the interests of justice: to eradicate the structural roots of criminal action within corporations.
With regard to the charge on complicity in crimes against humanity, the French Supreme Court will soon have the opportunity to revise this decision as Sherpa and ECCHR file their appeal. The Supreme Court will also be asked to review the October decision declaring Sherpa and ECCHR no longer admissible as plaintiffs. The next months and years will tell us how many twists and detours will hit this legal saga and how long the reach of corporate accountability in France is.