Editor's note: Before joining the Asser
Institute as an intern, Alexandru Tofan pursued an LLM in Transnational Law at King’s College London where he focused on international human rights law, transnational litigation and
international law. He also worked simultaneously as a research
assistant at the Transnational Law Institute in London on several projects
pertaining to human rights, labour law and transnational corporate conduct.
indictment of the French multinational company ‘Lafarge’ for complicity in
crimes against humanity marks a historic
step in the fight against the impunity of corporations. It represents the first time that a company
has been indicted on this ground and, importantly, the first time that a French
parent company has been charged for the acts undertaken by one of its
subsidiaries abroad. Notably, the
Lafarge case fuels an important debate on corporate criminal liability for
human rights violations and may
be a game changer in this respect.
This article analyses this case and seeks to provide a comprehensive
account of its background and current procedural stage.
Lafarge is a French-based
corporation that became one of the largest cement companies in the world after
its merger with Swiss giant Holcim. The
corporate group now has activity in over 80 countries,
employing tens of thousands.
Nevertheless, as it currently stands, eight of Lafarge’s former
executives, including two CEOs, stand accused of criminal offences for their
dealings in the company. Importantly, on
28 June 2018 the corporate entity was charged with complicity in crimes against
humanity and financing of a terrorist enterprise. These indictments spring from the company’s
infamous operations in Syria, which continued for a while during the civil war
that tore apart the country.
Lafarge began its operations in northern
Syria in 2007 through the acquisition of a factory plant between the cities of
Al-Raqqah and Manbij. This plant became
active in 2010 and was run by Lafarge Cement Syria – a subsidiary owned almost
entirely by the French parent company.
The Syrian conflict erupted one year after the plant's opening and it
unsurprisingly foreshadowed high security risks both for the factory and its
employees. Expectedly, the rapid deterioration of the situation on the ground
gradually forced the relocation of most multinationals and international bodies
operating within Syria’s borders.
Lafarge Cement Syria did not relocate.
It solely repatriated its international staff, with the local Syrian
employees being allowed to continue working in the factory. As the plant became more and more immersed in
Islamic State (IS) territory, the Syrian employees were obliged to cross
dangerous checkpoints to access the factory.
Seemingly unconcerned with the risk to which it was exposing its
employees, Lafarge threatened that failure to come to the plant would result in
salary suspension and even redundancy.
This approach did not cease when the employees voiced concerns that they
were facing high risks of death and kidnapping.
Nor did it cease when kidnappings
actually started to occur. Further,
Lafarge did not put in place any evacuation plan. Despite reassurances from the company that
there would be evacuation buses, the
employees had to fend for themselves when ISIS attacked and captured the plant.
On 21 June 2016, the French
newspaper ‘Le Monde’ published
an investigation in which it sketched out the connections and financial
relationship between Lafarge and the Islamic State. These accusations were met with a quick
response by the French parliament, which concluded in a report
from 13 July 2016 that no connection, whether direct or indirect, could be
established between Lafarge and the financing of Daesh.
Nevertheless, in October 2016, the French Ministry of Finance filed
a complaint against Lafarge claiming that it had breached the sanctions
imposed by the EU against the regime of al-Assad and the ban on trading with
terrorist organisations in Syria.
Following several additional complaints by former employees, a
preliminary investigation was opened by the French authorities in October
2016. As this preliminary investigation
continued, the Swiss giant Holcim admitted in March 2017 that Lafarge had
financed armed groups in Syria by recognising that ‘unacceptable practices had
been employed to maintain the activity and security of its plant’. This was subsequently corroborated by the
former executive Director-General of Operations, Christian Herrault, who stated
that the company had bowed to racketeering.
In June 2017, a judicial
investigation was launched into the matter triggered by a joint
complaint filed by French NGO Sherpa and the European Centre for
Constitutional and Human Rights. At
first, this investigation disregarded the two counts of financing terrorism and
crimes against humanity lodged against Lafarge as a legal person, and instead
focused on the individuals involved. In
November 2017, the Parisian headquarters of Lafarge were raided by the customs
police. The minutes from that search described the atmosphere at the company’s headquarters as a
‘climate of permanent tension’ and a ‘situation of latent conflict’. On 2 December 2017, the
first indictments were released, targeting Frédéric Jolibois (the Director
of the plant since the summer of 2014), Bruno Pescheux (his predecessor) and
Jean-Claude Veillard (the Director of Security). Three
more indictments followed on 8 December 2017, targeting Bruno Lafont (the
former CEO of Lafarge between 2007 and 2015), Christian Herrault (the former
Director-General of Operations) and Éric Olsen (the Director of Human Resources
at the time of the allegations). These indictments alleged
that these individuals were suspected of financing terrorism and endangering
other people’s lives. Another indictment followed in April 2018 regarding Sonia
Artinian who was Lafarge’s Director of Human Resources between September 2013
and July 2018. She
is accused of having endangered the lives of others and is given the status
of assisted witness.
In an ordinance dated 18 April 2018,
the judges in charge of the investigation returned to the accusations against
Lafarge as a legal person, which were initially disregarded by the Parisian
Prosecutor. The judges concluded that
the liability of Lafarge SA for financing terrorism and complicity in crimes
against humanity deserved
to be investigated. This marks a crucial development in the
Lafarge affair. In sum, the judges
opened up, for the first time around the world, the possibility of holding a
corporation criminally responsible for its alleged complicity in the commission
of crimes against humanity. Building on
the momentum generated by this decision, Sherpa and the ECCHR filed a legal
note in mid-May 2018 claiming that it is inevitable at this stage of the proceedings
to indict Lafarge for complicity in crimes against humanity and financing
terrorism. The two NGOs argued that the crimes committed by the Islamic State in
north-eastern Syria between 2013 and 2015 amounted to crimes against humanity
and that Lafarge became liable as an accomplice by neglectfully managing its
employees’ security and by financing the IS. The complaint claimed that the corporation ought to be held responsible
for crimes against humanity under Article
212-1 and Article
461-2 of the French Criminal Code (FCC), financing terrorist enterprises
421-2-2 of the FCC, the deliberate endangerment of other people under Article
223-1 of the FCC, exploitative and
forced labour as well as undignified working conditions under Articles 225-13
of the FCC, and negligence under Article
121-3 of the FCC.
Following these developments, the
corporation was called for a hearing before the investigative judges on 5 June
2018, which was postponed on Lafarge’s request. Nonetheless, on 28 June 2018,
nearly two years after Le Monde’s revelations, the French investigating judges
indicted Lafarge. The historic indictment accuses Lafarge of complicity in
crimes against humanity under Articles 212-1
of the FCC, the financing of a terrorist enterprise under Article 421-2-2
of the FCC, endangerment of other people’s lives under Article 223-1
of the FCC and the breach
of an embargo (the latter stemming from the original investigation of the
Ministry of Finance). The rationale
behind the judges’ decision to try Lafarge for crimes against humanity is
grounded in the idea that the corporation could not have ignored the reality of
the IS’ deeds and that it facilitated them in full awareness. As such, Lafarge stands formally accused of having
funnelled several million euros to the IS and other militant groups in
order to maintain its operations in Syria by paying taxes and by buying raw
materials from them. Notably, Lafarge is suspected of having sold cement
directly to the IS. Marie-Laure Guislain, a lawyer with Sherpa, stated
that if this direct sale is proven, it should be considered a supplementary act
of complicity since Lafarge would in effect have facilitated the construction
of roads, galleries, bunkers, and places for torture and the commission of
other crimes. After the hearing on 28 June, Lafarge Holcim released
a communiqué stating that it would appeal the charges, which ‘[...] do not fairly reflect the
responsibility of Lafarge’. The company has now been placed under judicial
supervision with a bond of €30 million and is awaiting trial.
It is also noteworthy that the two NGOs requested
that Lafarge open a compensation fund for all the former employees and their
The indictment of Lafarge is a game
changer in the discussion on corporate criminal liability for human rights
violations. It marks the first time worldwide that a corporation is indicted
for the financing of terrorist enterprises and for complicity in crimes against
humanity. It is also the first time in France that a parent company is being
held responsible for the actions undertaken by one of its subsidiaries abroad.
Nevertheless, despite this unquestionable novelty, Lafarge’s indictment is by
no means a totally unexpected development. Since there is currently no
international criminal court with jurisdiction over legal persons, corporate
criminal liability cannot be pursued at the international level. Rather, this
process must necessarily begin at the national level through the practice of
domestic courts and actors. The US
Supreme Court might have been right in stating
in the Jesner et al. v Arab Bank, PLC
case that the international community had not yet taken the step towards a
universal, specific and obligatory standard of corporate liability for offences
in violation of human rights protections. Yet the Lafarge case is clearly a
first step in that direction. Its value lies in its potential to set an
important precedent for all multinationals that engage in economic activity
around armed conflicts and which are therefore at a high risk of contributing
to human rights violations.
 In French: Les deux associations, avec 11 anciens salariés,
avaient été les premières à lancer une plainte pour «financement du terrorisme»
contre Lafarge, qui a fusionné avec le Suisse Holcim en 2015, en visant aussi
la «complicité de crimes contre l'humanité et de crimes de guerre».
parquet de Paris avait écarté ces deux qualifications à l'ouverture de
l'instruction en juin 2017, les juges estiment que ces faits ont «vocation à
être instruits», selon une ordonnance du 18 avril dont a eu connaissance l'AFP.