Charges can be brought in France for crimes against humanity

In January 2024, France’s highest court ruled that LafargeHolcim could be charged with crimes against humanity. This marks the “end of the beginning” of the long-running criminal proceedings against the international cement group and reinforces France’s reputation as an international leader in prosecuting cases by claiming universal jurisdiction.

The legal case against the company began in 2016, when a criminal complaint was filed in France by the European Center for Constitutional and Human Rights, Sherpa (an advocacy NGO), and 11 former Syrian employees of Lafarge SA. The complaint followed media reports about Lafarge’s activities in Syria, before its 2015 merger with Swiss company Holcim Ltd, following escalation of the conflict there. The complaint centred around allegations that in order to keep its cement plant working, the subsidiary used suppliers known to be paying extortion money to IS, and turned a blind eye to employees and customers being subject to extortion and that arrangements were made with armed groups, including the Islamic State (IS), in order to facilitate its operations. The complainants argued that, since the company knew that IS were involved in war crimes and crimes against humanity, they were financially complicit in those actions.

As we wrote in a previous blog which explored issues of international law and universal jurisdiction, on 2 March 2017, the company (which had by then become part of Holcim) issued a statement accepting that it had indirectly funded illegal armed groups in Syria. However, this was only the precursor to an almost decade-long legal process:

• On 9 June 2017, a judicial investigation was launched by the counter-terrorism unit of the Paris Tribunal.

• On 22 June, the scope of the investigation was broadened to include the alleged violation of an embargo (which had been previously brought to the attention of the judicial authorities by the French Ministry of Economy and Finance).

• Between December 2017 and March 2018, several former directors of Lafarge SA and its Syrian subsidiary were charged with crimes including financing a terrorist organisation and endangering the lives of others.

• On 19 February 2018, the NGO Sherpa filed a complaint for obstruction of justice on the part of Lafarge during searches carried out by investigators; shortly after this, the scope of the investigation was further broadened to include these allegations.

• On 28 June 2018 Lafarge SA was formally charged by investigative judges with complicity in crimes against humanity, financing a terrorist organisation, endangering the lives of others, and violating an embargo.

• On 7 November 2019, the Investigation Chamber of the Paris Court of Appeals confirmed most of the charges against Lafarge SA, but revoked the charge of complicity in crimes against humanity.

• Almost two years later, on 7 September 2021, France’s highest court, the Cour de Cassation, held that the charge of complicity in crimes against humanity had been wrongly revoked, and sent the case back to the Paris Court of Appeals on that charge.

• On 18 May 2022, as we previously reported in one of our International Criminal Law Quarterly Round-Ups, the Investigation Chamber confirmed the charge.

Lafarge appealed the May 2022 decision, drawing out the case for a further year and a half. The most recent decision from France’s Supreme Court, delivered on 16 January 2024, confirmed the charge against the company of complicity in crimes against humanity, however, it removed the charge of endangering the lives of the company’s former Syrian employees. The court interpreted the rules on conflicts of law to mean French labour law could not be applied to Syrian workers as they could not be seen as mandatory provisions overriding local law. Criminal charges do, however, remain active in relation to a number of former senior executives of Lafarge SA.

The Supreme Court decision is historic in that it involves France’s court of final recourse confirming jurisdiction over international crimes committed abroad by economic actors. It also means that LafargeHolcim becomes the first corporate entity to be prosecuted with complicity in crimes against humanity.

It remains the case that the overwhelming majority of prosecutions under the doctrine of universal jurisdiction – whether successful or not – relate to individuals rather than corporate entities. Trial International’s Universal Jurisdiction Annual Review 2023 lists a total of 169 suspects being investigated globally for crimes (of any type) under the doctrine of universal jurisdiction in 2022. Of those, 30 are ‘economic actors’, and of that number only three cases involve allegations of crimes against humanity.

Those cases have all been taken in France. In addition to the Lafarge case, proceedings are ongoing in France against Amesys, a French IT company, and two executives in respect of charges of complicity in torture in Libya; the case is under appeal before the Supreme Court. There are linked proceedings against another company, Nexa Technologies. The third investigation relates to the alleged complicity of BNP Paribas in crimes committed by the Sudanese government – charges under consideration in that case are said to include complicity in crimes against humanity, torture, genocide and financial crimes.

France has shown both the willingness and practical ability to exercise universal jurisdiction in recent years, and the recent decision will cement its reputation in that area. This stands in contrast to many other countries. As Trial International’s Annual Review points out, “The vast majority of states have never exercised universal jurisdiction despite having included it in their legal framework. Others have yet to pass appropriate comprehensive legislation.”

Notwithstanding the activity in France, the Annual Review also notes there is more work to be done in France too, which “still grapples with thorny issues that civil society organizations describe as unacceptable ‘locks’ prohibiting a progressive application of universal jurisdiction.”

Although there have been significant developments in recent years, this is still a nascent area of law, with many complexities and uncertainties to navigate for the agencies conducting investigations, the prosecutors charging crimes, and the courts looking at issues of jurisdiction.

The stakes are high and the gaze of the public eye is strong here; successful actions will therefore require bold and well-resourced agencies.

FURTHER INFORMATION

Should you have any questions about any of the issues covered in this blog, please contact Louise Hodges, Úna Campbell or another member of our Criminal Law team.

ABOUT THE AUTHORS

Louise Hodges represents individuals and companies embroiled in criminal and regulatory proceedings whether in the UK or internationally. She has acted in relation to high-profile Serious Fraud Office (SFO) investigations and Deferred Prosecution Agreement (DPA) negotiations.

Úna Campbell is a legal apprentice in the Criminal Litigation team at Kingsley Napley. Úna’s is currently in her fourth year at the University of Law, London, where she is working towards a Level 7 Solicitor Apprenticeship. Her apprenticeship at Kingsley Napley has enabled her to work across a range of disciplines and she is now greatly enjoying her work within the criminal litigation practice.