Prosecuting companies for crimes against humanity

On the 2^nd of March, French-Swiss company LafargeHolcim issued a statement accepting that it had indirectly funded illegal armed groups in Syria in order to continue its operations there. This statement came in response to mounting pressure in the press, coupled with a criminal complaint made against them in November 2016 by French NGO Sherpa and the European Center for Constitutional and Human Rights.

The complaint relates to a subsidiary of LafargeHolcim operating in Syria between 2013 and 2014. It alleges 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. Since LefargeHolcim knew that IS were involved in war crimes and crimes against humanity, it is argued that they are financially complicit in the actions of IS. At the time of writing the criminal investigation continues.

This would not be the first time criminal charges have been filed against companies for their alleged involvement in war crimes or crimes against humanity: see our blog on the recent complaint made to the International Criminal Court against companies involved in Australia’s immigration detention centres.

Lawyers and NGOs in France have been particularly active in this area over recent years:

• In January 2013 French media reported that Amesys, a French IT company was being investigated for its complicity in torture in Libya. It was alleged that a surveillance system sold by Amesys was used by the Gaddafi regime to track opponents to the regime, who were subsequently arrested and tortured. At the time of writing the company had not been charged.

• In June 2016 a criminal complaint was filed against Exxelia Technologies for their complicity in an alleged war crime. The complaint alleges that Exxelia sold a sensor to the Israeli Government in the knowledge that it would be used in a missile fired in the course of Israeli military operations in Gaza. .

France is not alone, other recent complaints against companies include:

• In February 2017 in the Netherlands the human rights group SMX Collective filed a criminal complaint against Rabobank and its board of directors. The complaint accuses Rabobank of laundering the criminal profits of Mexican drug cartels and in so doing, facilitating the crimes of these criminal groups which, it is claimed, are crimes against humanity.

• In 2013 a criminal complaint was filed in Switzerland by TRIAL against Argor Hereaus for its gold refinery activities. It was alleged that the company had knowingly handled pillaged gold and therefore been involved in laundering these illegal funds. This criminal complaint derived from a UN report on gold in the Congo being shipped into Switzerland and processed in order to conceal its origin. The investigation was closed in March 2015 due to insufficient evidence.

• In April 2013 a criminal complaint was submitted to the State Prosecutor in Germany accusing a senior manager of Swiss and German timber manufacturer the Danzer Group of aiding and abetting, through omission, grave human rights violations against members of a forest community in the DRC. These activities were discontinued in March 2015.

• In March 2012, Colombian trade union Sinaltrainal and the European Center for Constitutional and Human Rights submitted a criminal complaint to the Swiss public prosecutor against Nestle and its senior management. It was alleged they had failed to prevent the murder of Luciano Romero, a trade union leader and Nestle employee. The complaint was dismissed due the expiration of the statute of limitations; however this forms part of a further complaint before the ICC regarding the systemic persecution of trade union members in Colombia.

While many of these complaints have been initiated as a result of civil society or media pressure, there are signs that countries are increasingly open to the notion of prosecuting companies or their directors of their own accord. For example, in February 2017, the Prosecutor General’s Office of Colombia announced its intention to charge company directors with crimes against humanity for funding paramilitary forces between 1996 and 2004. It stated that these funds “guaranteed the functioning, existence and growth of this armed group… through which they bought weapons which were later used to execute all manner of [war] crimes.”

While criminal investigations of UK companies for their involvement in alleged war crimes are by no means commonplace this does not necessarily mean that companies are protected from criminal prosecution for the most serious crimes elsewhere. Notwithstanding the difficulties of prosecuting corporates in the UK, companies would be well advised to keep abreast of developments in this area at both the international and domestic level.

For further information on Universal Jurisdiction, please read our previous blogs, available on our site:

• Universal Jurisdiction - cases in the UK 
• Private prosecutions for crimes of Universal Jurisdiction 
• Legal update: Universal Jurisdiction - Which foreign crimes can be tried in the UK? 

This blog was co-authored by Sophia Kerridge, Paralegal in Criminal Litigation.