27 Jul Holding Transnational Corporations Accountable for International Crimes in Syria: Update on the Developments in the Lafarge Case (Part II)
[Claire Tixeire is a Senior Legal Advisor at the European Center for Constitutional and Human Rights in Berlin (ECCHR). Cannelle Lavite is a Legal Advisor and a Bertha Justice Fellow in Business and Human Rights at the ECCHR. Marie-Laure Guislain is Head of Litigation, Globalization and Human Rights program at Sherpa (France).]
In the first part of this two-part post, the authors presented the current proceedings in the Lafarge case in light of the recent decision of the Paris Appeals Court confirming the indictment of the French parent company Lafarge for the financing of a terrorist enterprise in Syria. In this part II, the authors analyze the decision of the French Court rescinding the charge of complicity in crimes against humanity and shed light on the broader significance of the Lafarge case in the field of criminal corporate accountability.
Interpreting complicity: The cornerstone of criminal corporate accountability for grave crimes
ECCHR and Sherpa filed extensive briefings in conjunction with the legal complaint outlining, first, the international consensus affirming that the atrocities perpetrated by IS at the time amounted to crimes against humanity and, second, the claim that by maintaining its factory’s activities and funding its subsidiary, Lafarge may have become complicit in these crimes.
The Court’s interpretation of complicity in crimes against humanity in this case is illustrative of the legal difficulties in holding multinational actors operating in armed conflict areas accountable for possibly contributing to grave crimes. At the time of the events, other multinationals like Total and Schneider had decided to leave the conflict-ridden area. Lafarge, however, decided to stay. The overarching question in this case, then, as in many other corporate accountability cases, is: when does the coin flip from legitimate business activity to criminal behavior?
The Court of Appeals rescinded the charge of complicity in crimes against humanity that the three investigative judges had formally leveled against Lafarge in June 2018. Although rejecting most of the defense’s arguments, it canceled the charge of complicity on only one ground: Lafarge’s lack of intent to contribute to the crimes.
In an unprecedented ruling, the Court found there was serious and consistent evidence that atrocities committed by IS in Syria between 2013 and 2014 amounted to crimes against humanity – the first such finding by a domestic court. Remarkably, the Court reaffirmed that Lafarge could not have ignored the terrorist nature of the group at the time it was financing it. However, in a rather strict interpretation of Article 121-7 of the French Criminal Code, the Court of Appeals found that a necessary element to establish the crime of complicity is the intention to be associated to the crimes – an element not found in this case.
Sherpa, ECCHR, and the former Lafarge Cement Syria employees, the plaintiffs in this case, are currently filing an appeal to the French Supreme Court against this aspect of the Court of Appeals’ decision. The plaintiffs argue that established jurisprudence on Article 121-7 finds that complicity requires the accomplice to know of the main perpetrator’s intent to commit a crime, not for the accomplice to share the intent for the crime’s perpetration.
The financing of IS and maintaining the plant’s operation may have contributed to the commission of crimes against humanity
The Court’s ruling also potentially sets an important precedent related to the material element required for establishing complicity in crimes against humanity. French law requires that the acts “contribute or facilitate” the commission of the main crime, without reference to a “substantial” or “direct” effect. Based on the estimation that the salary of an IS jihadist amounted to around 315 euros a month at the time of Lafarge’s payments to the group, and given that the November 2015 attacks in Paris are estimated to have cost around 80,000 euros, the amounts with which Lafarge financed IS between 2012 and 2014 suggest that its payments may have significantly contributed to IS’s material, human and operational capacities to carry out crimes. The judicial inquiry revealed that IS’s operational and financial structures were extremely institutionalized in order to execute its criminal activities. Based on these elements, the Court of Appeals confirmed that Lafarge’s financing of IS could have contributed to the commission of crimes against humanity committed in Syria.
Beyond the question of financing, the case also raises the issue of Lafarge’s senior management team’s decisions as positive acts of complicity, insofar as they could have played a contributive role in the commission of crimes. The Court recognized that Lafarge’s decision to maintain its factory’s operation had exposed its employees to life-threatening risks. The Court confirmed that by taking decisions to compel employees to continue working, and by failing to provide an evacuation plan, Lafarge not only omitted to protect its employees, but its decisions directly risked their lives. This occurred despite the fact that Lafarge had the authority, the means and the power to protect them. Hence, the plaintiffs argue that these decisions facilitated the commission of crimes against humanity against Lafarge’s employees.
Syrian workers’ lives at risk: Holding the multinational group to account
Solid allegations that a French company may have been complicit in crimes against humanity carries significant symbolic weight. This, added to evidence pointing toward it having transferred at least 13 million euros to armed groups, including one accused of having carried out terrorist attacks in Paris, means that the case is likely to be primarily understood, analyzed and covered in light of these two highly unusual criminal dimensions.
However, at the heart of this case are Lafarge’s former employees in Syria, the plaintiffs in the proceedings. In an international context where corporate criminal accountability is extremely difficult to establish in court with regard to complex multinational structures, it is notable that the Lafarge group remains charged for deliberately endangering its subsidiary’s workers’ lives.
While multinational groups may have decision-making powers over their subsidiaries located abroad and though they directly benefit from the latter’s profitable activities, legal and evidentiary obstacles make it difficult, at times impossible, to hold them to account for their due share of responsibility for damages caused down their production chains. Not only is there a gap in most countries’ laws with regard to such liability, but the corporate veil means that chains of command and decision-making can often remain obscured through nets of complex corporate group structures.
In this context, the Court of Appeals made an unprecedented move when it recognized that Lafarge had “effective authority” over its subsidiary and decided to maintain the indictment for risking the lives of the Syrian workers.
Challenges in access to justice in France
A distinct, important angle to this case relates to access to justice in France. The procedural challenges for civil society to become civil parties to lawsuits have multiplied in the last couple of years. The French parliament has passed various pieces of restrictive legislation requiring new, specific accreditations for a non-profit association to join proceedings.
On 24 October 2019, the Court of Appeals decided to rescind ECCHR and Sherpa’s eligibility to remain in this case as civil parties, based on a restricted interpretation of Article 2 of the French Procedural Code. Specifically, Article 2-4 states that non-profit organizations may join a relevant case as civil parties when their organizational statutes provide for combating crimes against humanity. The Court claimed that neither Sherpa nor ECCHR’s mandates filled this requirement, despite acknowledging that both of the organizations’ statutes provide for the defense of international human rights.
The upcoming decision of the Supreme Court on that front will be of great significance as the inadmissibility of human rights organizations as plaintiffs in such cases directly undermines their ability to best accompany victims to access to justice, as well as their ability to file criminal complaints when prosecutorial authorities may be reluctant to initiate investigations into major corporate actors.
Moving toward a responsible globalized economy and ending corporate impunity in armed conflicts
France is already home to a pioneering new law for protecting individuals against the risks of human rights abuses stemming from multinational companies’ activities. In 2017, a corporate “duty of vigilance” law was introduced in France – the first civil law of its kind in Europe – obligating parent companies to prevent human rights abuses in their supply chains worldwide, and requiring them to pay damages should they have failed to adequately act on this duty.
From a criminal law perspective, the Lafarge case triggers important legal debates. The criminal proceedings in France could be a major driver for expanding the application of criminal law to multinational groups, and for better capturing criminal behavior within complex corporate structures. Both are essential steps for ensuring that victims of grave crimes have access to justice and reparations.
The Court of Appeals’ decision is currently in the hands of France’s Supreme Court, which is expected to pronounce its much-awaited decision on the aspects detailed above within the year.