I. Introduction
Between 2012 and 2015, while an armed conflict raged in Syria and the Islamic State of Iraq and Syria (ISIS) controlled large areas of the country, the Syrian-registered company Lafarge Cement Syria, 98.7 per cent-owned by the French company Lafarge SA (now Holcim), decided to pay several armed and terrorist groups, including ISIS, to keep its cement plant located in Jalabiya (northern Syria). Following a complaint lodged in November 2016 by the non-governmental organizations (NGOs) Sherpa and the European Center for Constitutional and Human Rights (ECCHR) and 11 former employees of Lafarge in Syria, a judicial enquiry was openedFootnote 1 in France on charges of financing a terrorist enterprise,Footnote 2 deliberate endangering of lives and offences relating to working conditionsFootnote 3 and complicity in crimes against humanity.Footnote 4 In April 2018, several executives of Lafarge SA and its Syrian subsidiary, as well as Lafarge SA as a legal entity, were indicted for financing a terrorist enterprise.Footnote 5 Lafarge SA was also indicted for complicity in crimes against humanity and remains charged to this day, pending the conclusion of the judicial inquiry and a potential trial in France.Footnote 6 On 16 October, French investigating judges ordered Lafarge SA and four former executives to stand trial before the French criminal court for financing a terrorist organization and violating an embargo.Footnote 7
The ongoing judicial proceedings in France, as well as an unprecedented plea agreement between Lafarge and the United States Department of Justice concerning the financing of terrorism,Footnote 8 are milestones in the field of corporate criminal liability. Beyond the appalling facts of this case, the reference to criminal accountability of corporate legal entities per se is unprecedented: since the Nuremberg Tribunals, the vast majority of corporate criminal accountability cases have focused only on individual corporate executives. This is due to the exceptional feature of French criminal law allowing for the criminal prosecution of corporate entities per se, but also to a largely fictitious judicial and public opinion that business actors are neutral.
This article will consider the French Cour de cassation decision on two key aspects: that the intent required to establish complicity for crimes against humanity does not require adherence to a criminal plan, and that the financing of a criminal organization can constitute the material element of the complicity. It will conclude by preliminarily assessing the potential implications of this jurisprudence to the accountability of arms companies under French criminal law.
II. Intent for Complicity in Crimes Against Humanity: A Clarification from the French Cour de cassation
On 7 November 2019, the Paris Court of Appeal’s Investigating Chamber (Appeals Court) quashed the indictment of Lafarge SA on the grounds that Lafarge’s payments to ISIS pursued the commercial objective of keeping the factory running and thus did not characterize a willingness to adhere to ISIS’s criminal project. However, in a ruling of 7 September 2021, the French Cour de cassation overturned this decision, providing important clarifications on the interpretation of the notion of complicity in crimes against humanity.
In their appeal of the controversial ruling from the Appeals Court, the plaintiffs argued it had unduly added a second criterion to the intentional element of complicity: the dolus specialis, or the specific intent on the part of the accomplice to facilitate the commission of the main crime. In other words, according to the Appeals Court, it was no longer sufficient for the accomplice to act with the awareness that his or her aid or assistance would facilitate the commission of the principal offence, but the accomplice had to share the intent of the main perpetrator to commit, through its actions, the main crime. As highlighted by the doctrine relying on the Appeals Court reasoning:
After noting that aiding and abetting presupposes “the willingness to associate with or contribute to the commission of the principal offence”, such a will could not be inferred from the company’s mere financing of an organisation likely to be in the process of committing crimes against humanity. In fact, this financing was intended to enable the company to continue its activities in an area that was in the throes of civil war and then controlled by the said organisation, and therefore did not manifest its intention to be associated with the crimes against humanity perpetrated by this entity.Footnote 9
This interpretation carried the potential of creating a loophole for businesses that are financing criminal organizations in the course of their business operations, to escape liability, as long as the evidence of their shared ideological association with the criminal activities of the groups they finance could not be established by claimants.
The civil parties who filed the criminal complaint appealed this ruling to the French Cour de cassation, on the basis that French criminal law defines complicity according to the existence of a) a material element of aiding or assisting in the preparation or commission of a crime and b) an intentional element of the accomplice’s knowledge of the criminal intentions of the main perpetrator. In its decision, the French Cour de cassation closed the door to the potential criminal impunity for businesses that the Appeals Court had left wide open:
Article 121-7 of the Criminal Code requires neither that the accomplice to a crime against humanity belong to the organisation, if any, guilty of this crime, or that he or she participates in the conception or execution of a concerted plan against a civilian population group as part of a widespread or systematic attack, or that he or she approves the commission of the common law crimes constituting the crime against humanity.Footnote 10
The Court specified that the mere ‘knowledge that the principal perpetrators are committing or about to commit such a crime against humanity and that, by his aid or assistance, he is facilitating its preparation or commission’ was sufficient to establish the intentional element of complicity.Footnote 11 It also pointed out that the fact that the accomplice only sought to pursue a commercial activity by ensuring the continued operation of its factory is related to the motive and has no bearing on establishing intent.Footnote 12
The Lafarge decision aligns with existing jurisprudence from the French Cour de cassation that followed in the wake of the Nuremberg Tribunals, according to which it is not necessary for an accomplice to crimes against humanity to have adhered to the policy of ideological hegemony of the principal perpetrators, or to have belonged to one of the organizations declared criminal by the Tribunal.Footnote 13 It also reflects the jurisprudence of the International Military Tribunals following the Second World War, which considered several manufacturers guilty of having supported the Nazi regime’s activities by transferring funds to the ‘Himmler Circle of Friends’Footnote 14:
An organization which on a large scale is responsible for such crimes can be nothing else than criminal. One who knowingly by his influence and money contributes to the support thereof must, under settled legal principles, he deemed to be, if not a principal, certainly an accessory to such crimes. So there can be no force in the argument that when, from 1939 on, these two defendants were associated with Himmler and through him with the SS they could not be liable because there had been no statute nor judgment declaring the SS a criminal organization and incriminating those who were members or in other manner contributed to its support.Footnote 15
The French Cour de cassation further clarified that the accomplice must have acted with the knowledge of the primary perpetrator’s intent to commit the principal offence. According to the standard case law of the French Cour de cassation, complicity by aiding or assisting is punishable only if this aid was given knowingly to the principal perpetrator in the acts that facilitated the preparation or commission of the offence.’Footnote 16 This knowledge may be deduced either from the material act of complicity itself or from the notorious nature of the principal perpetrator’s criminal activities. According to the court, the repeated financing of armed groups whose activities are known to be exclusively criminal should have made it possible to establish the intentional element of complicity.Footnote 17
III. Financing Criminal Groups and the Material Element of Complicity
In the context of a globalized economy, the financial dimension of the support provided by both state and business actors to criminal organizations has become essential. In many cases, without the financial resources provided inter alia by private corporate actors, planned crimes cannot be materially committed. In the Lafarge case, the material element of complicity can be established from the fact that the company, via its subsidiary in Syria, financed the activities of ISIS. Judicial investigations in France have revealed that Lafarge Syria paid several million dollars to armed and terrorist factions that controlled the cement plant, including ISIS and the Al Nusrah Front. Indeed, the company has admitted the existence of this revenue-sharing agreement with ISIS within the framework of a historical guilty-plea agreement between Lafarge and the Department of Justice that was signed in October 2022. The company is now required to pay $778 Million in fines and forfeiture.Footnote 18
ISIS, which has been considered a terrorist organization by the United Nations since May 2013, was created in 2006 in Iraq from the ashes of Al-Qaeda.Footnote 19 From 2013 it underwent a phase of territorial expansion, carrying out terrorist attacks and crimes against individuals, including in the area of Lafarge’s factory in Syria, as documented by NGOs and the press already in 2013.Footnote 20 ISIS gained control over large parts of eastern and northern Syria, including big cities such as Mosul, and northern Iraq.Footnote 21 Obtaining sources of finance was key to ensuring the expansion of the criminal group.
In French criminal law, the act of complicity is ‘contributory and not constitutive of the principal offence.’Footnote 22 In other words, characterizing the material element of complicity does not require proof of direct personal participation in the principal offence, since such a situation falls under the heading of co-perpetrator of the same crime.Footnote 23 Rather, the notion of complicity under French criminal law is based on the relative flexibility of its material element, which must be able to capture all peripheral conduct that knowingly facilitated, directly or indirectly, the commission or preparation of a principal offence. Neither Article 121-7 of the French Criminal Code nor its application in case law require any particular threshold for participation; it is sufficient to show that the commission or preparation of the principal offence was facilitated by the provision of aid or assistance of any kind.
As a result, the material element of complicity can be established without demonstrating that a given action was indispensable to the commission of the principal offence,Footnote 24 or even that it was effective.Footnote 25 Mirroring the threshold used to establish the intentional element of complicity, it is sufficient that the means were provided knowingly, in the form of a positive act, prior to or concurrent with the offence and having facilitated its commission. Furthermore, there is no need to show that the act of complicity, in the case of Lafarge the financing of ISIS, resulted in the core criminal action, but only that it contributed to or facilitated its realization.Footnote 26 With regard to the provision of resources, French courts have ruled that the provision of weapons,Footnote 27 means of transportFootnote 28 or media communicationFootnote 29 constitutes complicity, provided that the aid was given knowingly.
International criminal law has on several occasions made use of the presumption of a link between the act of assistance and the commission of international crimes. Although there is still no consensusFootnote 30 among international tribunals’ jurisprudence on the question of the shared criminal intent, both in the ICC Statute,Footnote 31 statutes of the international criminal tribunalsFootnote 32 and in their case law, complicity has gradually come to be seen as an accessory liability, punishing conduct that played a significant part in the commission of a crime without necessarily constituting a sine qua non. In this sense, the International Criminal Tribunal for Yugoslavia in the Sainovic et al. judgment of 23 January 2014, confirmed that aiding and abetting can be established through acts that have a significant but not direct effect on the commission of the crimes in question.Footnote 33 Further case law in international criminal tribunals confirms the absence of a direct link requirement, as discussed by several authors.Footnote 34
IV. Conclusion: The Implications of Lafarge on Future Criminal Liability of Arms Companies
The French Cour de cassation’s decision in Lafarge provides an important clarification on the notion of intent in corporate complicity in international crimes, which is relevant to arms exports connected to international crimes and violations of international humanitarian law. Following the legal reasoning of the court, one can logically conclude that establishing the accomplice’s knowledge that the provision of lethal goods—arms—to an armed or terrorist group committing crimes may facilitate or contribute to these crimes, should be logically inferred from the nature of the acts of complicity itself. Taking the conflicts in Yemen and Palestine as an example, one can also argue that there is serious evidence pointing out the likely existence patterns of airstrikes conducted by the Saudi-led Coalition and Israel in violation of international humanitarian law and international human rights law. This in turn means that businesses supplying military material to these countries risk providing the material means that facilitate or contribute to the commission of crimes.
The Lafarge jurisprudence may be echoed in emerging French and international litigation against arms companies and traders selling their weapons to armed groups or states that commit international crimes. As a consequence, from now on the economic logic of multinationals—whether they pursue a so-called ‘neutral business’ of cement manufacture, production of garments, or sell inherently lethal goods such as arms—must be carried out in a way that respects international human rights and humanitarian law, without committing international crimes, at the risk of incurring criminal liability at international and national level. However, the potential for the Lafarge case to generate a real incentive for companies to place the respect of human rights and dignity above financial profits heavily depends on the actual outcomes of the Lafarge case in terms of providing the justice, recognition, and compensation requested by the claimants. While the indictment of Lafarge is definitely confirmed, the case is ongoing and a decision is expected in the next years on a possible trial on these grounds.
Competing interests
Julie Février is a lawyer registered with the French bar. She represents the European Center for Constitutional and Human Rights (ECCHR) and Sherpa in the criminal proceedings against Lafarge in France.
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