28 Jul Transnational ne bis in idem for Corporate Involvement in International Crimes: The Lafarge Proceedings in the U.S. and France
[Tomas Hamilton is an Assistant Professor in the Faculty of Law at the University of Amsterdam]
In parallel proceedings in Paris and New York, the French corporation Lafarge SA (‘Lafarge’) has recently faced allegations surrounding its dealings with terrorist groups Islamic State in Iraq and the Levant (‘ISIL’) and Al-Nusra Front (‘ANF’). In the context of Lafarge’s cement operations during the Syrian civil war, these two sets of national criminal litigation highlight some of the untrodden ground in transnational law when it comes to holding corporations accountable when they become involved in atrocity.
In France, the defendant corporation Lafarge and several of its executives are under investigation for criminal charges that include financing of a terrorist enterprise, complicity in crimes against humanity, and endangering the lives of others (‘the French Proceedings’). Meanwhile in the U.S, in a criminal plea deal with the Department of Justice on 18 October 2022, Lafarge and its Syrian subsidiary Lafarge Cement Syria (‘LCS’) admitted to entering into business arrangements with ISIL and ANF. On this basis, Lafarge and LCS agreed to pay a financial penalty of $778 million in fines and asset forfeiture for the non-prosecution of charges of conspiring to provide material support to terrorism (‘the U.S. Settlement’, see here).
On the face of it, the French Proceedings and the U.S. Settlement concern the same factual contours of the situation in Syria, share some common defendants, and to some extent seem to mirror each other’s criminal charges. This raises a number of potential issues relating to the juridical concepts of ne bis in idem and double jeopardy. Could the (finalized) U.S. Settlement have any effect on the (ongoing) French proceedings? Without taking any position on the liability of any Lafarge business entity or employee in any jurisdiction, this blog post explores this legal issue.
Principles of Transnational ne bis in idem
The principle of ne bis in idem provides a procedural defence in criminal law, precluding situations of double jeopardy, including the situation where one jurisdiction seeks to punish an individual who has already been convicted for the same criminal behaviour in another jurisdiction on the basis of a final verdict from a court of competent jurisdiction. In the European setting, the ne bis in idem principle is reflected in Article 50 of the EU Charter of Fundamental Rights and Article 4 of Protocol No. 7 annexed to the European Convention on Human Rights. Yet there remain uncertainties in the judicial application of the law and limited legal provision on the transnational application of the principle in states bound by EU law when considering a prior conviction by a non-EU state. This has left significant leeway to EU member states to develop their own interpretation of the transnational application of ne bis in idem through national laws.
In France, domestic sources for the application of the ne bis in idem principle in the context of transnational proceedings can be found in Article 113-9 of the French Criminal Code and Article 692 of the French Code of Criminal Procedure. Both provisions are formulated through the same wording: ‘no prosecution may be initiated against a person who establishes that he was subject to a final decision abroad for the same facts and, in the event of conviction, that the sentence has been served or extinguished by limitation’. In the French proceedings against Lafarge, at least four requirements are determinative of whether transnational ne bis in idem is applicable: (i) exercise of jurisdiction over the conduct on grounds other than national territorial jurisdiction; (ii) that both sets of litigation concern the same subjects; (iii) the existence of a final decision pronounced by a competent foreign court; and (iv) the all-important consideration as to whether both proceedings concern the ‘same facts’.
French Extra-territorial Jurisdiction Over the ‘Constitutive Facts’
Firstly, the scope of the ne bis in idem prohibition in France is limited to situations in which the court exercises jurisdiction based on principles other than territoriality. In order to institute criminal proceedings in France on the basis of territorial jurisdiction, it is necessary to establish, pursuant to Article 113-2(2°) of the Criminal Code, that ‘constitutive facts’ (acts) have taken place on French national territory. Under French law, foreign decisions are disregarded when the offence is committed on French territory. Following the reasoning of the Cour de cassation in the Vitol case of 2018, a claim of transnational ne bis in idem would only be admissible in French proceedings derived from a different head of jurisdiction, other than territorial jurisdiction under Article 113-2. This means that, according to the current interpretation of the Cour de cassation, a ruling that the charges may proceed to trial on the basis of territorial jurisdiction, derived from a finding that some of the ‘constitutive facts’ occurred on French territory, would exclude any possibility of the Lafarge defendants succeeding on a ne bis in idem defence to those charges.
On the face of it, this appears to preclude an argument of ne bis in idem in the French proceedings against Lafarge. It cannot be ruled-out, however, that the French judges would deem that for one or more of the charges against the Lafarge defendants, none of the actions, conduct or contributions initiated from within French territory can be described as constitutive of the charged offence (eg writing emails from Paris to colleagues in Syria). It could be argued, for instance, that the material facts of the charges of crimes against humanity were exclusively carried out overseas in Syria, through the actions of the principal perpetrators (members of ISIL and ANF) together with the relatively proximate actions of accomplices in Syria (the locally-based LCS employees who are said to have arranged and executed the revenue-sharing arrangements with the terrorist groups). In this understanding of the ‘constitutive’ facts of crimes against humanity, the activities involved in bringing about the execution of the offence against the civilian population all occurred overseas, such that the competence of a French court would be based on extra-territorial jurisdiction. In the event that the ambit of the constitutive facts is understood in this way, not extending to the activities of the Lafarge corporation and its executives initiated in France, this leave open the possibility that defendants would argue for ne bis in idem on those charges.
Alternatively, a French court might consider that its jurisdiction over crimes against humanity is inherently extraterritorial and therefore those charges can be subject to the transnational ne bis in idem principle. This could be the case when the French court’s exercise of jurisdiction is based on the active territoriality principles (Article 113-6 of the French Criminal Code) or for the exercise of universal jurisdiction where France’s competence derives from an international convention (Article 689 of the French Code of Criminal Procedure). In the event that the French courts were to decide their competence on extraterritorial heads of jurisdiction, such as in the recent case of complicity in crimes against humanity in Syria, this might also leave open the door to arguments of transnational ne bis in idem to be raised by the defendants.
Same Subjects and the ‘Final Judgment’ Requirement
Any argument of ne bis in idem would need to show that one of more of the subjects of the U.S. Settlement (Lafarge and LCS) and the French Proceedings (Lafarge and individual executives) are the same. Only the Lafarge corporation is a named defendant in both sets of proceedings, hence the issue of ne bis in idem turns on the extent to which the corporate legal person could claim, in France, the application of the prohibition on double jeopardy.
The possibility that individual French executives could argue that the U.S. Settlement makes definitive findings on their individual roles and therefore provides them with protection from double jeopardy in other jurisdictions, is beyond the scope of this blog post. It is necessary to recognise that the individual acts and conduct of some executives is detailed quite extensively in the Statement of Facts in the U.S. Settlement. Much of this conduct overlaps with actions allegedly taken by these defendants on which the charges against them in the French proceedings are founded. Hence it could be said that the Lafarge corporation is being punished in the U.S. for the actions of employees who are subject to prosecution in France for the same conduct. Yet it is unlikely that individual executives could plead this argument or gain any recognition, individually, of the non-prosecution agreement with the Department of Justice. This would involve a court accepting that an individual executive was a subject of the U.S. proceedings even though they were not identified in the settlement as charged defendants, in the context in which there is no clear indication that those executives were under investigation in their individual capacities by the Department of Justice at any prior stage.
As for a ‘final judgement’ requirement, it entails the existence of a foreign judgment that must have a res judicata effect, meaning that no more appeals can be formulated, and that no further prosecutions will be conducted. In Lafarge’s case, the guilty plea at hand expressly states that the U.S. will not prosecute further and that Lafarge has waived its right of appeal, so this requirement appears to be fulfilled.
Same Facts Between the U.S. Settlement and the French Proceedings
Regardless of its legal classification in the different national proceedings in the U.S. and France, the conduct underlying the charges against Lafarge remains fundamentally the same. The scope of the charges in the French Proceedings is defined by factual contours of the activities in Syria, which overlap to a significant extent with the facts agreed in the U.S. Statement of Facts. Following a literal interpretation of the law, it would not be possible to prosecute the Lafarge corporation before the French courts for charges that are based on the same factual setting that underlies the U.S. Settlement. As such, at the close of the French judicial investigation, the way in which the factual basis underlying the charges is defined by the pre-trial judge, could be determinative of whether there is any possibility of a ne bis in idem defence.
In relation to the French charges of financing of a terrorist enterprise, their legal characterization appears to share a strongly similar factual basis with the U.S. charges of ‘conspiracy to provide material support to foreign terrorist organizations’. Lafarge may have a tentative argument regarding this count (again, recalling that Lafarge would need to be able to persuade the court that these charges are viable on a jurisdictional head other than territorial jurisdiction). In relation to the French charges of complicity in crimes against humanity and endangering the lives of others, there is an open question as to whether the court would consider that they are based on the same factual setting as the financing of a terrorist enterprise, given the conduct involved in these charges. In the French proceedings to date, it is arguable that the actus reus of both of these charges would not only derive from the financing but also from the exposure of employees to the commission of crimes against humanity and failure to ensure their security, which is an aspect of the alleged criminality that is not covered by the U.S. Settlement.
Interpreting the ‘Same Facts’ Requirement
The wording of the principle in French law clearly entails that the essential element of commonality is one that translates from French into English as ‘the real or historical fact’. Yet on occasion, the French courts have sometimes appeared to refuse to apply the principle on the basis of differences in the legal characterization of the facts when applying its extraterritorial jurisdiction (despite the clear reference in the legal texts to the same facts). In a 1973 case about international drug trafficking between France and Canada, the Cour de cassation ruled that a previous Canadian decision, in which the defendant was sentenced for import offences, did not preclude France from proceeding with the trial on charges relating to exports offences, even though the prosecutions were evidently based on the same conduct. Here the court appeared to have taken a more formalistic construal of the notion of ‘same facts’, allowing identical underlying facts to be variegated by their legal characterization.
Interestingly, in an earlier decision in the Vitol case, the Cour d’appel, found in 2016 that ‘the same offence’ within the meaning of Article 14(7) of the ICCPR not merely requires the same facts, but a legal characterization reflective of the same protective interest. Accordingly in the Lafarge case, the charges in one jurisdiction (conspiracy to provide material support to foreign terrorist organizations) could be described as fundamentally different from those in the other (complicity in crimes against humanity), even if the underlying facts and conduct are considered to be the same. This approach could be sustained on the basis that the two crimes protect fundamentally different interests – the terrorism charges relate to victims and interests that are primarily outside of the zone of conflict in Syria and Iraq, while the international complicity in atrocity crimes charges are primarily directed at reflecting the criminality perpetrated against those victims who were closest to the violence, as well as the broader sets of interests engaged by international criminal law. For the Syrian victims who hope to recover some form of justice in France, this approach to ne bis in idem may provide a key to overcoming any claims of ne bis in idem from the defence.
Impact of a ne bis in idem Ruling for Lafarge on the Proceedings
In conclusion, because under French law claims of the victims are closely tied to the criminal proceedings, there is a risk that an absence of prosecution of certain charges due to ne bis in idem would preclude victims from receiving indemnification of their claims. The French ‘action civile’ is considered to be attached to the criminal proceedings and therefore at risk of extinction should the criminal charge fail. Without a finding of guilt on a specific charge, the proceedings cannot give rise to reparations to victims based on that particular criminal offence. Although the U.S. criminal proceedings cannot directly block the right of victims to recover compensation in other jurisdictions and fora, if ne bis in idem prevents certain charges from going ahead in the French trial, this could indirectly prevent victims from recovering damages on those charges, as well as impeding their access to justice and depriving them of their ‘day in court’ in a public trial against Lafarge. Given the lack of significant judicial precedents on victim reparations for international crimes charges before domestic courts, there are a number of untested legal issues at play. As such, the impact of the U.S. Settlement on certain charges would depend on legal interpretation in Paris as to whether jurisdiction is exercised on the basis of territoriality, the notion of ‘same facts’ in a transnational context, and the extent to which the legal characterization of those facts is relevant. Irrespective of the arguments that are actually raised by the Lafarge defendants in the current proceedings, the clarification of the principle of ne bis in idem in a transnational context can play a decisive role in future cases of alleged corporate involvement in atrocities and terrorism.