This autumn, two oil industry executives may be indicted in Sweden for aiding and abetting international crimes in Sudan. Furthermore, the public prosecutor will also likely seek forfeiture of $400 million from their company, Lundin Petroleum, reflecting the benefits derived from its Sudanese operations. The case follows the 2018 French indictment of LafargeHolcim for alleged crimes committed in Syria, showing that corporate liability for international crimes is gaining traction, before European courts at least.

This event aims to discuss the Lundin case, which has the potential of becoming a landmark trial because of the novelty and complexity of the legal issues that the court will have to decide. In particular, with regard to the assessment of the individual criminal liability of the executives of Lundin, the determination of the applicable standards of proof, the question whether a lack of due diligence is sufficient for a finding of guilt, and the limits and overlap of individual criminal liability of corporate directors on the one hand and corporate criminal liability of organisations on the other.

The event will feature three speakers, who will be presenting the various dimensions of the case and will put it into the more general context of the current legal developments with regard to criminal liability of corporations (and their executives) for human rights violations:

• Egbert Wesselink will provide an introduction to Sudan’s oil war, describe Lundin’s role in it, and examine the human rights responsibilities of the company and its shareholders.
• Dr. Mark Taylor will discuss how the Lundin case sits in global developments regarding the criminal liability of corporations for human rights abuses in the context of conflicts.
• Miriam Ingeson will give a Swedish perspective to the legal framework of the case and analyse the legal issues that it raises at the intersection between national and international law.

The speakers:

• Egbert Wesselink serves as Senior Advisor in PAX, the Dutch peace movement, where he is responsible for the programme on Natural Resources, Conflict and Human Rights, that focusses on the impact of international enterprises on the rights and interests of communities, notably in Sudan, South Sudan, DRC and Colombia. He represents PAX in several multi-stakeholder initiatives, including the Voluntary Principles on Security and Human Rights in an effort to increase the impact of emerging international guidelines, and advises various enterprises.
• Dr. Mark Taylor is a Postdoctoral Fellow, Department of Private Law, University of Oslo and presently a Visiting Fellow at the Amsterdam Center for International Law, University of Amsterdam. Mark writes on legal and policy frameworks applicable to responsible business and will publish the book “War Economies and International Law: Regulating the Economic Activity of Armed Conflict” (based on his PhD thesis) with Cambridge University Press. Mark is an advisor to various initiatives in the field of responsible business and is a member of the Norwegian Ethics Information Commission (2018-2019), a government commission which is considering a proposed law on human rights information in the global value chains of Norwegian business.
• Miriam Ingeson is a PhD candidate at Uppsala University, Sweden.  Her research project explores corporate criminal liability in international criminal law, and the intersection of domestic criminal law and public international law. She has previously held positions with the Swedish Prosecution Authority, the Folke Bernadotte Academy and the Swedish Ministry of Justice.

The moderator:

• Dr. Antoine Duval is Senior Researcher at the Asser Institute and the coordinator of the Doing Business Right project.

For some background material on the case and its wider context, see www.unpaiddebt.org & www.lundinhistoryinsudan.com.

More information and registration Here!

Editor’s note: Katharine Booth holds a LLM, Advanced Programme in European and International Human Rights Law from Leiden University, Netherlands and a LLB and BA from the University of New South Wales, Australia. She is currently working with the Asser Institute in The Hague. She previously worked for a Supreme Court Justice and as lawyer in Australia.

Overview

On 12 February 2020, the United Nations High Commissioner for Human Rights (Commissioner) issued a report on all business enterprises involved in certain activities relating to Israeli settlements in the Occupied Palestinian Territory (OPT) (Report). The Report contains a database of 112 businesses that the Commissioner has reasonable grounds to conclude have been involved in certain activities in Israeli settlements in the West Bank. Of the businesses listed, 94 are domiciled in Israel and the remaining 18 in 6 other countries: France, Luxembourg, the Netherlands, Thailand, the UK and the US. Many of the latter are household names in digital tourism, such as Airbnb, Booking, Expedia, Opodo and TripAdvisor, as well as Motorola.

Swift and Mixed Reactions

The drafting and publication of the Report has been much delayed and hugely controversial. The UN has repeatedly been criticised for its “disproportionate focus and unending hostility” as well as political bias towards Israel. In the press release accompanying the publication of the Report, the current Commissioner, Michelle Bachelet, acknowledged its controversial nature: “I am conscious this issue has been, and will continue to be, highly contentious”.  

Unsurprisingly, reactions to the Report have been swift and mixed. Within hours of its publication, Israel’s Ministry of Foreign Affairs denounced the Report as a “blacklist” of companies and, as a self-described “exceptional and harsh measure” in retaliation for its publication, suspended its ties with the United Nations Human Rights Council (Council). By contrast, the Palestinian Foreign Minister praised the Report as a “victory for international law”, and the Prime Minister entreated companies in the database to immediately cease their operations in the Israeli settlements, stating that his government would “pursue the companies listed in the report legally through international legal institutions and through the courts in their countries for their role in violating human rights”.[1] Closer to home, a spokesperson for the Dutch Ministry for Foreign Affairs criticised the Council’s one-sided focus on Israel, as well as the UN’s involvement in the issue of companies operating in the OPT, which in the opinion of the Dutch government is not primarily the responsibility of the UN but of states.

NGOs focused on responsible business conduct (RBC) have welcomed the Report as an important step to holding listed businesses to account under national and international law. Al-Haq, an NGO based in the West Bank, commented on Wafa, the Palestinian newsagency, that the database was “integral to ending corporate complicity in human rights violations” and emphasised the importance of the database being updated annually: “Adding and removing companies from the long-awaited database creates a necessary incentive and deterrent against engaging with Israel’s illegal settlement industry.”[2] Moreover, Human Rights Watch commented, “The long awaited release of the UN settlement business database should put all companies on notice: to do business with illegal settlements is to aid in the commission of war crimes.”

Scope and Purpose of the Report

The Council mandated the production of the Report in Resolution 31/36 on “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”, adopted in March 2016. Paragraph 17 of the Resolution required the Commissioner, in “close consultation” with the UN Working Group on Business and Human Rights, to produce a database of all business enterprises involved in activities contained in paragraph 96 of the Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the rights of Palestinians in the OPT (Fact-Finding Mission Report). In particular, the drafting of the list involved interpreting and applying three cumulative elements: (a) “business enterprises”; (b) “involved”; (c) in one or more “listed activities”.

(a)   “Business Enterprises”

The Commissioner construed “business enterprises” to mean “all relevant entities” of concern, “including parent companies and their subsidiaries, franchisors and franchisees, local distributors of international companies, partners and other entities in relevant business relationships.” The nature and substance of the functions and activities of the businesses’ entities, irrespective of the corporate structure or characterisation of the business under national law, was taken into account for the purpose of the Report. Notably, the broad construction of “business enterprises” in the Report reflects the equally broad meaning of “business relationships” in the United Nations Guiding Principles (UNGPs), namely “relationships with business partners, entities in its value chain, and any other non-state or state entity directly linked to its business operations, products or services.”

(b)   “Involved”

Similarly, the Commissioner construed “involved” very broadly to include “substantial and material business activity that had a clear and direct link to one or more of the listed activities”, namely a  business enterprise itself engaged, or a parent company owning a majority share of a subsidiary engaged, or a business enterprise granting a relevant franchise or license to a franchisee or licensee engaged, in a listed company in the OPT. Again, this construction mirrors the UNGPs which provide that the responsibility of businesses to respect human rights requires that they seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by business relationships, even if they have not contributed to those impacts.

Only activities between the period 1 January 2018 to 1 August 2019 fell within the scope of the Report.

(c)    “Listed activities”

In contrast to the broad understanding of the first two cumulative elements, the Commissioner construed the meaning of “listed activities” narrowly. The database only captures the activities listed in paragraph 96 of the Fact-Finding Mission Report. These activities generally relate to the supply or support of Israeli settlements in the West Bank. However, for clarity, paragraph 96 is set out in its entirety: 

Information gathered by the mission showed that business enterprises have, directly and indirectly, enabled, facilitated and profited from the construction and growth of the settlements. In addition to the previously mentioned violations of Palestinian worker rights, the mission identified a number of business activities and related issues that raise particular human rights violations concerns. They include:

(a) The supply of equipment and materials facilitating the construction and the expansion of settlements and the wall, and associated infrastructures

(b) The supply of surveillance and identification equipment for settlements, the wall and checkpoints directly linked with settlements

(c) The supply of equipment for the demolition of housing and property, the destruction of agricultural farms, greenhouses, olives groves and crops

(d) The supply of security services, equipment and materials to enterprises operating in settlements

(e) The provision of services and utilities supporting the maintenance and existence of settlements, including transport

(f) Banking and financial operations helping to develop, expand or maintain settlements and their activities, including loans for housing and the development of businesses

(g) The use of natural resources, in particular water and land, for business purposes

(h) Pollution, and the dumping of waste in or its transfer to Palestinian villages

(i) Captivity of the Palestinian financial and economic markets, as well as practices that disadvantage Palestinian enterprises, including through restrictions on movement, administrative and legal constraints

(j) Use of benefits and reinvestments of enterprises owned totally or partially by settlers for developing, expanding and maintaining the settlements

The scope of the activities that may cause a business enterprise to be listed in the database is therefore restricted. As the Report notes, the database does not cover all business activity in the settlements, nor business activity in the OPT that may raise human rights concerns.  Indeed, several high-profile companies known to be operating in the Israeli settlements by key NGOs have not been named.

The restricted scope of the database assists to identify the purpose of the report, namely:

Private companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure that they do not have an adverse impact on the human rights of the Palestinian people, in conformity with international law as well as the Guiding Principles on Business and Human Rights. The mission calls upon all Member States to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, that conduct activities in or related to the settlements respect human rights throughout their operations.[3]

At the heart of the Report are the UNGPs, including the binding obligation on states to protect human rights, and the corporate responsibility to respect human rights in business operations. In the absence of the Israeli government’s compliance with its obligation to protect the human rights of Palestinians in relation to the unlawful Israeli settlements in the OPT, and the inability of the UN to enforce such compliance, the focus of the Council has instead shifted to what other Member States and businesses can do to remediate the harm caused by these settlements. Such states can implement legislation in accordance with the UNGPs, requiring companies to conduct human rights due diligence (HRDD) regarding their operations, thereby effectively ensuring legal accountability for companies that operate in and assist the Israeli settlements. As powerfully stated by the Commissioner in the preliminary report on the database published in February 2018:

… considering the weight of the international legal consensus concerning the illegal nature of the settlements themselves, and the systemic and pervasive nature of the negative human rights impact caused by them, it is difficult to imagine a scenario in which a company could engage in listed activities in a way that is consistent with the Guiding Principles and international law. This view was reinforced in Human Rights Council resolution 34/31 on the Israeli settlements, in which the Council referred to the immitigable nature of the adverse impact of businesses’ activities on human rights.

Businesses have been warned.

The Direct and Indirect Effects of the Report

The Report has no direct legal effect on businesses listed in the database. Indeed, the Report notes that the database “is not, and does not purport to constitute, a judicial or quasi-judicial process of any kind or legal characterization of the listed activities or business enterprises’ involvement therein.” The database is merely a list of business enterprises that the Commissioner has factually determined as being involved in the listed activities. Accordingly, the Report is not in any sense a “blacklist” of listed businesses, nor is it intended to brand such businesses as ‘illegal’ or operating in an illegal manner.

Nonetheless, the Report may have indirect non-legal and quasi-legal effects for listed business enterprises, particularly well-known businesses domiciled outside of Israel that operate in markets in which consumers and stakeholders are concerned about RBC and sustainable investment. In relation to potential, non-legal effects of the database, listed businesses may experience a backlash as a result of public mobilisation. As pointed out in the Ruggie Framework, failure to meet the “baseline responsibility” of companies to respect human rights “can subject companies to the courts of public opinion - comprising employees, communities, consumers, civil society, as well as investors”. The ‘courts of public opinion’ (better known as bad press) may encourage businesses listed on the database to, ultimately, divest from or cease their activities in the Israeli settlements.

Indeed, the Report provides a mechanism for listed businesses to be removed from the database, which is not static but rather is updated annually. Listed businesses may provide information to the Commissioner indicating that they are no longer involved in a listed activity and, if the Commissioner has reasonable grounds to believe that this is the case, the business can be removed from the database. Similarly, businesses that commence one or more listed activities may be subsequently added to the database. Accordingly, business activity in the OPT is and will continue to be closely monitored by the Commissioner and civil society.

Perhaps the Report will add fuel to the fire of the Boycott, Divest and Sanctions (BDS) movement, which aims to discourage companies (and other stakeholders) from supporting the Israeli government and investing in the Israeli settlements in the OPT. Certainly, the identification of specific companies by the UN, the most influential intergovernmental organisation in the world, has been heralded by the BDS movement as ��a first significant and concrete step by any UN entity towards holding to account Israeli and international corporations that enable and profit from Israel’s grave violations of Palestinian rights.” Only time will tell if or how states and stakeholders (including consumers, shareholders, institutional shareholders and civil society) will utilise the database for their own ends.

Proactive governments may also put pressure on companies operating in the OPT to cease their operations. Government may leverage their considerable economic power to encourage companies to engage in RBC, including HRDD. For example, states can implement policies requiring businesses to have in place satisfactory HRDD processes to be eligible for public procurement contracts. However, the effectiveness of such policies in the case of businesses operating in the OPT may be limited, for the simple reason that the majority of listed businesses in the database are domiciled in Israel and therefore in all probability less likely to bid for European or US procurement contracts. However, requiring HRDD processes may be an effective strategy in relation to businesses listed in the database operating in the infrastructure and construction industries, such as those domiciled in France (Egis Rail), the Netherlands (Tahal Group International B.V., Altice Europe N.V., Kardan N.V.) and the UK (JC Bamford Excavators Ltd, Greenkote P.L.C.). Interestingly, these jurisdictions have been at the forefront of the push towards incorporating corporate social responsibility, including HRDD, into national legislation.

Additionally, the Report may have indirect quasi-legal effects for listed businesses. In jurisdictions that have implemented legislation in accordance with the UNGPs and OECD’s Guidelines for Multinational Enterprises (OECD Guidelines), it is possible that quasi-legal action may be commenced against businesses listed in the database. For example, a complaint may be made by a NGO to a National Contact Point (NCP) that a listed business operating in the OPT has not complied with the OECD Guidelines. NCPs are not legal entities in the strictest sense – they rarely issue final determinations and cannot sanction companies for non-compliance with national and international law – but they are quasi-legal in that that they are empowered to issue persuasive, albeit non-binding, recommendations to businesses. In fact, in 2013 a Palestinian NGO successfully complained to the UK NCP that G4S, a global security company contracted by the Israeli government and operating in the West Bank,  had not met its obligation to address the impacts of its business relationship with that government, inconsistent with G4S’s duty to respect human rights under the OECD Guidelines. Successful claims such as these may inspire similar claims in other countries. As such, the Report may not have any legal effect, but it may indirectly support any quasi-legal claim made against a listed business in relation to their operations in the OPT.

A ‘Significant’ and ‘Concrete’ Step Forward

The Council will consider the Report during its 43rd Regular Session, from 24 February to 20 March 2020. Hopefully the Council will provide some guidance to states and listed businesses concerning their responsibilities and obligations under international law, as a result of the Report. Such guidance has been sought by Valentina Azarova in order to clarify the law as it stands for all concerned parties, as well as to ensure the effectiveness, integrity and transparency of the Council. It is essential for the responsibilities and duties of states and businesses to be crystal clear if the UNGPs are to be effectively incorporated into national law and, most importantly, if businesses are to comply with that law. The theory of the UNGPs and the rhetoric contained in the Report must be translated into practical guidance for companies to follow, in order that they may comply with and hopefully exceed their duty to respect human rights.

It has been almost 12 years since the release of the Ruggie Framework and 9 years since the adoption of the UNGPs by the Council. While the Guiding Principles remain just that – non-binding principles that seek to shape national and international legal developments – each year their persuasive influence increases. Slowly but surely, the UNGPs are permeating into the international legal framework – the Report is the most recent example of the normalisation of the notion of RBC. The release of the database is also indicative of what may be described as a shift away from the traditional focus of international law of holding states to account, to the focus on companies and their duties and responsibilities under international  human rights law. In the absence of concrete and effective action by the so-called ‘international community’ to long-standing and ongoing human rights violations, human rights advocates are seeking new mechanisms to hold states and businesses accountable. While these mechanisms are certainly not perfect, it is important to keep in mind that we are in the very early stages of a monumental shift in international law.

The Report is indeed a significant and concrete step towards holding businesses to account for their complicity in human rights violations. While the direct legal effects of the database are indeed limited, its potential indirect effects should be of serious concern for companies operating in the OPT. Listed businesses have been put on notice – on the international stage no less – that their actions are being monitored and may be contrary to national (and perhaps someday international) law. 

[1] ‘Calling to shut down offices in settlements, premier says companies will be pursued legally’ (WAFA, 12 February 2020)

[2] ‘Al-Haq: list of firms integral to ending corporate complicity in human rights violations’ (WAFA, 13 February 2020)

[3] Fact-Finding Mission Report, Paragraph 117

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.

The recent 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.

BACKGROUND

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.

THE CASE

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.[1] 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.[2]  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 under Article 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 and 225-14-2 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 and 461-2 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 families.

LOOKING FORWARD

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.

[1]           In French: “Selon Le Monde, le groupe Lafarge aurait ainsi payé à Daech diverses taxes en échange de la circulation de ses marchandises et de ses salariés et se serait approvisionné en matières premières [...] Les éléments auxquels le Rapporteur a pu avoir accès ne confirment en rien ces accusations. Rien ne permet d’établir que le groupe, ou ses entités locales, ont participé, directement ou indirectement, ni même de façon passive, au financement de Daech”. See here at page 90.

[2]          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».

Si le 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.