French multinational company Lafarge to face charges of complicity in crimes against humanity: A crack in corporate impunity?

BEIRUT – The French multinational cement company Lafarge will face charges of complicity in crimes against humanity, the Paris Court of Appeals confirmed last week. It is the first time worldwide that a company, as a legal entity, is being charged with complicity in crimes against humanity, piercing longstanding corporate impunity that goes beyond the Syrian conflict.

Between 2012 and 2014, the French multinational allegedly paid 13 million euros to armed groups in Syria, among them the Islamic State (IS), to keep their cement factory in Jalabiya, northeastern Syria, operating. Lafarge is accused of buying raw materials from armed groups and paying IS to allow Syrian workers to cross through checkpoints. The company announced its withdrawal from Syria only when IS fighters took over the factory in September 2014.

The case against Lafarge was originally filed in 2016 but was delayed by multiple appeals and a lengthy investigation process. Lafarge—which later merged with a Swiss firm—is also charged with violating an embargo, financing terrorism and deliberately endangering the lives of its employees in Syria.

Mohammad is one of these employees. The Damascene engineer worked at Lafarge in Syria between 2011 and 2012 and is one of 11 Syrian plaintiffs who joined the legal organizations Sherpa and the European Center for Constitutional and Human Rights (ECCHR) in bringing the case. During those years, kidnappings by armed groups and airstrikes from the Syrian regime became the norm in Manbij—controlled at the time by a range of non-state actors—where Lafarge workers like Mohammad lived. “There was an evacuation plan for foreign staff, for expats, so I asked the security official: ‘You will evacuate expats, what about Syrians?’ He said they didn’t have any plan to evacuate Syrians,” Mohammad said.

In 2012, when Mohammad was working for Lafarge, a group of gunmen kidnapped a manager at the factory. “The group asked for ransom, Lafarge didn’t pay, so his family gathered the money, and he remained kidnapped for a month,” Mohammad recalled. On another occasion, a worker going from Aleppo to the Lafarge site “disappeared at a regime checkpoint.”  

“In Lafarge, they were careless,” Mohammad said.

Mohammad decided to bring his family to safety in Turkey in 2012, and then returned to Manbij to continue working at the factory. Five days later, “the school next to my house was hit by an airstrike from the Syrian regime…I could have died.” The next day, Mohammad told his manager about the shelling and his answer was: “And what do you want me to do?” It was then that Mohammad decided to flee and join his family in Turkey. 

He later moved to Germany, where he heard about the initiative to bring a complaint against Lafarge. He became hopeful and decided to join the effort. “I became convinced that the truth will prevail in the end,” he said. “I hope that the case proceeds and those in Lafarge are held accountable in front of the world.”

The investigative phase of the case started five years ago, but it will be months or even years before the trial begins. If Lafarge loses the case, the penalties “can go up to the dissolution of the company or being forbidden from any more business activities,” said Claire Tixeire, Senior Legal Advisor at ECCHR. For the individual managers, any jail sentence would be uncharted legal territory given this is an unprecedented scenario. 

Syrian plaintiffs like Mohammad may be eligible to receive economic compensation “if Lafarge is found guilty of deliberately endangering the lives of its Syrian employees,” Tixeire said.

Why is this ‘first’ a breakthrough?

The Lafarge case is the first time that a company itself as a legal entity—and not its managers—is accused of complicity in crimes against humanity.

The French court has specified that “having a commercial purpose, does not prevent them from being complicit in the crimes,” explained Anna Kiefer, Advocacy and Litigation Officer at Sherpa. This means that although Lafarge’s intention when paying money that ended up in the hands of IS members may have not been to support IS activities, they are still accountable. 

This is a “win for corporate liability,” Kiefer said, because “it makes it more difficult for these big corporations to hide behind their business activities to escape liability, and they cannot ignore the human rights’s aspect just under the guise of making profit or having a neutral activity.” 

“This case sends a signal to all companies that they must clearly assess the extent to which they might contribute to human rights violations because there can be legal consequences,” Tixeire added.

The French ruling is also a breakthrough because the parent company, Lafarge, is being charged for crimes that “took place abroad via a subsidiary,” said Tixeire. Given the evidence that “the parent company took many of the relevant decisions that had to do with the security of their Syrian employees and with the question of the transfer of money to the armed groups, French courts are saying that the parent company has responsibility,” she explained.

The case has the potential to make waves for corporate accountability efforts around the world. “Oftentimes, multinationals hide behind their complex structures and they claim that it is for the subsidiary to be responsible for their employees,” Tixeire said. 

“It is fundamental that not just the political and military leaders are being investigated but also the economic actors, and also the European economic actors,” she added, quoting the French Supreme Court’s September ruling that “it is the multiplication of acts of complicity that make crimes against humanity possible.”

Zaid Al Azem, a Syrian political writer and lawyer based in France, welcomed the development of the Lafarge case and hoped for this to be the “beginning of the condemnation of other companies involved in Syrian bloodshed.” Al Azem pointed to another investigation currently before the French public prosecutor against a businessman “on charges that he was supplying chemicals to the regime.” 

French accountability efforts

The Lafarge case is one of 23 Syria-related cases against individuals related to the Syrian government or non-state armed groups currently taking place in European countries through the principle of universal jurisdiction, a legal principle that allows authorities to claim jurisdiction to try a person accused of international crimes regardless of their nationality or where the crime was committed. This is the principle that led to the landmark Koblenz trial last February, where a former senior Syrian intelligence official was convicted of crimes against humanity in Germany. 

Compared to Germany, France has a more limited approach toward universal jurisdiction. Last November, in the case of Islam Alloush, a former member of the Syrian Islamist faction Jaish al-Islam, the Court of Cassation concluded that France does not have jurisdiction over crimes against humanity perpetrated in Syria given that these crimes are not codified under Syrian law. Last April, however, the Paris Court of Appeals overturned that decision. 

But for every step forward, there is a setback. Last January, French authorities signed a cooperation agreement with the International, Impartial and Independent Mechanism (IIIM) for Syria, the UN mechanism to assist in the investigation and prosecution of perpetrators of international crimes in Syria, which Al Azem sees as a positive development. 

But last October, Syrian President Bashar al-Assad’s uncle Rifaat al-Assad, who lived in exile in France for decades, escaped accountability. Nicknamed “the Butcher of Hama” for his central role in the 1982 Hama massacre, he was convicted of financial crimes by a French court and sentenced to four years’ imprisonment, but avoided arrest and returned to Syria. 

“We were shocked by this escape,” Al Azem said. “France is making efforts to put an end to the impunity, but on the practical level there are many question marks.”

From Iraq to Colombia: Five examples of ‘corporate liability’ in conflict 

There is no legal precedent of a company being charged for complicity in crimes against humanity. Throughout history, corporations involved in conflicts have mostly gone unpunished, but there are some exceptions, including:

1. After World War II, Bruno Tesch and Karl Wienbacher, owner and general manager of Tesch & Stabenow, respectively, were sentenced to death for aiding and abetting murder by supplying the pesticide Zyklon B to the Nazi regime, knowing that it was used in gas chambers. In the Nuremberg trials, three officials of the Flick Concern companies were found guilty of war crimes and crimes against humanity for using slave labor and participating in the plunder of public and private property.
2. In 2007, a Dutch court sentenced Frans van Anraat, a Dutch businessman, to 17 years in prison for complicity in war crimes after he supplied Saddam Hussein’s government with the chemicals to manufacture mustard gas that was later used to massacre Kurdish population in northern Iraq in the late 1980s.  
3. In 2007, US banana company Chiquita pled guilty to financing the United Self-Defense Forces of Colombia, a right-wing paramilitary group known for brutal public murders. Between 1997 and 2005, Chiquita  paid $1.7 million to the militia to protect its business in Colombia.
4.  In 2014, Eritrean ex-mine workers sued the Canadian company Nevsun for slavery, torture and crimes against humanity perpetrated by its subsidiary during the construction of a mine in Eritrea. In a 2020 settlement, the company was found to have subjected the plaintiffs to forced labor.
5.   In 2018, two executives of the Swedish oil company Lundin Energy were accused of aiding and abetting war crimes and crimes against humanity in Sudan between 1997 and 2003. The trial is still ongoing.