Doing Business Right Blog

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.

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project of the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Human right due diligence (HRDD) is a key concept of Pillar 2 of the UN Guiding Principles on Business and Human Rights (UNGPs), the corporate responsibility to respect human rights. Principle 15 of the UNGPs, one of the foundational principles of Pillar 2, states that in order to meet the responsibility to respect human rights, businesses should have in place a HRDD process to ‘identify, prevent, mitigate and account for how they address their impacts on human rights’. However, how was the concept of HRDD developed? What does it mean? What are its key elements?

This first blog of a series of articles dedicated to HRDD answers these questions by providing an overview of the concept of HRDD and its main elements (as set out in the UNGPs) as well as how the concept was developed. It will be followed by a general article looking at HRDD through the lens of a variety of actors including international organisations, non-state actors and consultancy organisations. Case studies will then be undertaken to look at how HRDD has materialised in practice. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses.

History of the Concept of HRDD

The concept of due diligence was around well before John Ruggie assumed the mandate of Special Representative on the issue of human rights and transnational corporations and other business enterprises back in 2005. Indeed the concept was initially a creature of American securities law under the auspices of ‘reasonable investigation’. The Securities Act 1933 imposes strict civil liability on certain people for untrue statements and omissions of material fact in a securities registration statement.[1] However, an exception is carved out where ‘reasonable investigations’ have been undertaken.[2] The relevant standard of reasonableness to be applied in this situation is that of a ‘prudent man in the management of his own property’.[3]

Following this, the concept of due diligence emerged in other corporate contexts, particularly with respect to financial transactions such as mergers and acquisitions.[4] While the due diligence carried out on such transactions in the 1980s was quite limited, the process has gradually become much more extensive. Over time, the concept has been transplanted into the international human rights law framework – a positive duty has been imposed on states to conduct due diligence to prevent human rights violations by non-state actors, including businesses.[5] Thus, in the international human rights law arena due diligence has been applied as a standard of conduct that states are required to meet in order to uphold human rights within their jurisdiction.

In the business and human rights sphere, the concept of due diligence was first introduced back in 2003 when the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (draft Norms) were introduced. Article 1 of the draft Norms placed a primary responsibility on states to ensure that businesses respect human rights. It also placed a separate obligation on businesses ‘to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law’ within their sphere of influence. The commentary to article 1 notes that businesses have the responsibility to use ‘due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware’. No further explanation was provided on the due diligence to be conducted and the draft Norms were not approved by the Human Rights Council in 2004.

The concept of due diligence was brought back into the business and human rights arena when Ruggie was appointed as Special Representative. Following the failure of the draft Norms, Ruggie introduced the concept of HRDD back into the international arena in 2008 and developed it over a period of about three years until the UNGPs were endorsed by the UN Human Rights Council. As he acknowledges, until then due diligence was considered a ‘business process’ used in ‘strictly transactional terms’.[6] However, Ruggie sought to broaden the concept into ‘a comprehensive, proactive attempt to uncover human rights risks, actual and potential, over the entire life cycle of a project or business activity, with the aim of avoiding and mitigating those risks.’[7] He did this by drawing on the key elements of due diligence and combining them with the distinctive elements of human rights. This is what is now referred to and articulated as the concept of HRDD in the UNGPs. Ruggie gave HRDD such a key role in Pillar 2 of the UNGPs because he recognised that companies cannot know or show that they are respecting human rights without conducting HRDD.[8] Indeed, he envisioned that HRDD would facilitate movement from ‘naming and shaming’ businesses by external stakeholders to ‘knowing and showing’ through internalising respect for human rights.[9]

Ruggie identified a number of benefits to business for undertaking HRDD, in particular he highlighted that it wouldn’t impose additional burdens on business.[10] He argued that HRDD assists business to ‘address their responsibilities to individuals and communities that they impact and their responsibilities to shareholders, thereby protecting both values and value’.[11] He further acknowledged that HRDD assists companies to lower their risks, particularly with respect to legal non-compliance.[12] He also noted that conducting HRDD has the ability to protect Boards against claims brought by shareholders regarding mismanagement.[13]

In setting out the scope of HRDD, Ruggie stated that it is to be ‘determined by the context in which a company is operating, its activities, and the relationships associated with those activities’[14] by reference to three factors, namely: (a) the country and local context in which the relevant business activities take place; (b) what human rights impacts the business’ own activities may have within that context; and (c) whether the business’ own activities might contribute to abuse through the relationships connected to their activities.[15] Importantly, he noted that the scope of HRDD is not fixed or based on influence, rather it ‘depends on the potential and actual human rights impacts resulting from a company’s business activities and the relationships connected to those activities’.[16]

With respect to the substantive content of HRDD, John Ruggie stated that the minimum requirements are set out in the International Bill of Human Rights and the ILO core conventions, as well as additional standards relevant to the context of a particular business such as international humanitarian law.[17]

As to the HRDD process itself, Ruggie set out four minimum requirements. Businesses should:[18]

Adopt a human rights policy.
Conduct human rights impact assessments to ‘understand how existing and proposed activities may affect human rights’.
Integrate human rights policies through the business, which requires a top down approach in order to ‘embed respect for human rights throughout a company’ as well as training and the ‘capacity to respond appropriately when unforeseen situations arise’.
Track their performance through monitoring and auditing processes with regular updates of human rights impact and performance.

Following these developments, the HRDD concept was finally articulated in the UNGPs, which were endorsed by the UN General Assembly in 2011.

Concept of HRDD as articulated in the UNGPs

Meaning of HRDD and its Scope

Despite being a key element of the UNGPs, HRDD is not defined in the UNGPs itself. Rather, as stated above, the UNGPs states that HRDD is a process – that is, a process that should ‘identify, prevent, mitigate and account for how [businesses] address their impacts on human rights’. However, in interpretative guidance provided by the Office of the High Commissioner of Human Rights, due diligence is defined as follows:[19]

such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case”. In the context of the Guiding Principles, human rights due diligence comprises an ongoing management process that a reasonable and prudent enterprise needs to undertake, in the light of its circumstances (including sector, operating context, size and similar factors) to meet its responsibility to respect human rights. (Emphasis added)

It is clear from the definition above that HRDD is separate to the due diligence processes generally carried out by a business (for example, corporate due diligence). It is also clear that HRDD should be undertaken by all businesses in order to respect human rights. However, the extent of the HRDD to be carried out is dependent on various factors. As stated in Principle 17, the scope of HRDD is dependent on the ‘size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations’. Accordingly, the scope of HRDD processes should be tailored to a specific business’ needs and should evolve as a business’ operations and operating context develop – therefore, the process that is applied by one business cannot necessarily be applied by another business. For example, larger businesses are required to carry out more extensive HRDD than smaller businesses.

Elements of HRDD

The four key interrelated elements of HRDD are set out in Principles 18 to 21 of the UNGPs, namely, assessing actual or potential adverse human rights impacts, integrating findings across the business and taking appropriate action, tracking the effectiveness of their response and communicating with stakeholders. This process will be explained in further detail below.

In order to conduct HRDD, businesses should start by conducting regular human rights impact assessment in order to by identify and assess ‘any actual or potential adverse human rights impacts which they may be involved’ in both their activities as well as their business relationships. Such an assessment is a critical aspect of HRDD as it is necessary for a business to evaluate its human rights risks before it can consider the steps to take to address those risks. The assessments should involve:[20]

assessing the human rights context prior to a proposed business activity, where possible; identifying who may be affected; cataloguing the relevant human rights standards and issues; and projecting how the proposed activity and associated business relationships could have adverse human rights impacts on those identified.

The findings of such assessments should then be integrated across a business’ relevant internal functions and processes to prevent and mitigate risks identified. Further, action should be taken where the business has had actual impacts so as to remediate those affected. Complexities may arise with respect to this element of HRDD, with situations existing where a business may not contribute to an adverse human rights impact, but nevertheless because of the business’ relationship with a third party the impact is directly linked to the business’ operations, products or services. Situations may also exist where a business has little or no leverage to address an impact. In such situations, businesses should seek independent expert advice.[21]

Businesses should then track the effectiveness of their response to adverse human rights impacts. Tracking allows a business to ensure that it is appropriately and adequately addressing the human rights impacts of its operations and to adapt its response if required. It should be ‘based on appropriate qualitative and quantitative indicators’ and ‘draw on feedback from both internal and external sources’.

The approach taken by businesses to address their human rights impacts should be communicated externally, including to those affected. Where severe human rights impacts exist within a business, how the business responds to impacts should be reported in a formal manner. In order to ensure that useful information is provided to external stakeholders, all communications should be accessible to its intended audience and provide sufficient information to ensure that business’ can evaluate the adequacy of their response to a particular human rights impact involved. Such communication ensures accountability and transparency on the part of the business.

The image below developed by Shift illustrates the cyclical nature of the HRDD process and shows that it is an ongoing process that must be undertaken in regular intervals in order to truly assist businesses to identify, prevent, mitigate and account for how they address their impacts on human rights.

Conclusion

As discussed above, HRDD lies at the heart of the corporate responsibility to respect human rights in the UNGPs. While the UNGPs were released in 2011, the concept of due diligence was around almost two decades before that – however, it was applied purely in the context of commercial transactions. The draft Norms imported the idea of due diligence into the business and human rights sphere. After the draft Norms failed, Ruggie revived the concept when he was appointed as Special Representative. He saw HRDD as key to businesses being able to know and show that they respect human rights to their stakeholders. Ruggie developed the concept from 2005 onwards, emphasising its benefits for businesses. Leading to the final articulation of HRDD as a central mechanism of the UNGPs in 2011.

From the discussion in this blog post, it is clear that the UNGPs as well as Ruggie’s reports and statements in the lead up to their inception do not (and probably could not) explicitly address how HRDD is to be applied and operationalised by businesses in practice. This will be explored in greater detail in the upcoming blog posts in this series.

[1] Securities Act 1933, section 11(a).

[2] Ibid, section 11(b).

[3] Ibid, section 11(c).

[4] See Michael Harvey and Robert Lusch, Expanding the Nature and Scope of Due Diligence, 10(1) Journal of Business Venturing 5 (1995); Michael Harvey and Robert Lusch, Beyond Traditional Due Diligence for Mergers and Acquisitions in the 21st Century, 19(3) Review of Business 17 (1998); Olga Martin-Ortega, Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last, 32 Neth. Q. Hum. Rts. 44 (2014), p 49.

[5] See for example Velasquez Rodriguez v. Honduras (1989) 28 ILM 294, [172] and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (2010), article 5(2).

[6] John Ruggie and John Sherman, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale, 28(3) The European Journal of International Law 921 (2017), p 924; Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Business and human rights: towards operationalizing of the “protect, respect and remedy” framework (22 April 2009), UN Doc. A/HRC/11/13 (2009 Report), [25].

[7] 2009 Report, [25].

[8] John Ruggie and John Sherman, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale, 28(3) The European Journal of International Law 921 (2017), p 924.

[9] Keynote Address by SRSG John Ruggie “Engaging Business: Addressing Respect for Human Rights” (2010).

[10] Ibid.

[11] Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework (9 April 2010), UN Doc. A/HRC/14/27 (2010 Report), [79].

[12] Keynote Address by SRSG John Ruggie “Engaging Business: Addressing Respect for Human Rights” (2010).