The landmark case against Lafarge, expected to be heard by the French Supreme Court in 2021, is of international import in the realm of corporate criminal liability for complicity in crimes against humanity. In late 2016, cement and construction company Lafarge, headquartered in Paris, was charged in French court for alleged abuses committed in Syria by one of its subsidiaries.  The subsidiary, Lafarge Cement Syria, allegedly paid sums of money to ISIS during the Syrian Civil War, arguably enabling ISIS to continue perpetrating its crimes against humanity. While similar corporate complicity charges have been brought dating back to the Nuremberg Trials after WWII, there are numerous obstacles to holding corporate bodies accountable for their actions. One such obstacle is that the traditional model for corporate liability seeks to hold corporate leaders responsible under international criminal law, rather than the corporation itself. Another issue is that no international court has jurisdiction to charge corporations, leaving the issue entirely to domestic law.

In the few instances that corporations have been held domestically liable for complicity, the guilty corporations have typically either cooperated with military regimes or otherwise been involved in conflict areas.   Within the first category, cooperating with military regimes, liability is seemingly restricted to those corporations that provided regimes with physical support, rather than financial contributions. In contrast, corporations involved in conflict areas may be found complicit for fueling the conflict, which may be done either through provision of goods or funds. However, no court has yet held a corporation liable for complicity in this second category solely for provision of funds. Lafarge could potentially be the first case in history to find liability on these grounds.

While the case against Lafarge will be decided under French law,  the holding could create a roadmap for other States seeking to hold their corporations criminally liable for atrocities committed by terrorist organizations supported by corporate financing. France is a particularly ripe jurisdiction to adjudicate this issue, due to its status as a pioneer in demanding corporate accountability for human rights violations abroad. For example, France was the first State in Europe to enact a “duty to vigilance” law in 2017, which obligates companies to prevent human rights abuses in their supply chain.

What Happened

LaFarge, a French cement company, was charged for alleged crimes committed in Syria by its subsidiary, Lafarge Cement Syria (LCS). During the Syrian Civil War, LCS operated a cement plant located in Kobane Syria, a territory that was effectively under ISIS control and was a primary battleground in the fight against ISIS. Between 2013 and 2014, LCS allegedly bought raw materials from jihadi groups (including ISIS), paid jihadist groups 13 million euros for safe passage for its workers and products, and violated the 2012 EU embargo against Syria. These payments occurred during a pivotal time during which ISIS and other jihadist groups were ramping up their operations. In March 2013, Lafarge allegedly signed agreements with ISIS to buy materials for cement production. That same month, ISIS conquered the city of Raqqa. Later, in 2014, Lafarge allegedly purchased movement passes issued by ISIS to facilitate safe passage. Before purchasing these passes, nine LCS factory employees had been kidnapped in October 2012, and one additional employee was kidnapped in August 2014. ISIS’s crimes during the Syrian Civil War were numerous, leading to a massive humanitarian crisis that continues to this day. In 2014, the UN’s Independent International Commission of Inquiry on the Syrian Arab Republic published a report on ISIS, concluding that ISIS perpetrated countless war crimes and crimes against humanity.

On November 15, 2016, eleven former LCS employees along with two NGOs, Sherpa and the European Center for Constitutional and Human Rights (ECCHR), filed a criminal complaint against Lafarge, LCS, and former and current corporate officers of both. The complaint alleged financing of terrorism, complicity in crimes against humanity committed by ISIS during the Syrian Civil War, and a multitude of labor law violations. Three investigating judges of the Paris High Court investigated the allegations, and chose to indict a total of eight former CEOs and directors of Lafarge and LCS on charges of both financing terrorism and deliberate endangerment of employees’ lives. Shortly thereafter, in May 2018, Sherpa and the ECCHR formally requested the investigating judges expand the indictments to include complicity in crimes against humanity, and to formally indict Lafarge as a company. In a landmark indictment, the investigating judges charged Lafarge with complicity in crimes against humanity, financing terrorism, breaching an EU embargo, and endangering the lives of others.

This was historic for two reasons. First: France became the first domestic court to determine ISIS’s actions in Syria during the Syrian Civil War were crimes against humanity. Second: Lafarge became the first multinational company in the world to be indicted on such a complicity charge.

Interpreting Complicity in Light of Criminal Mens Rea

 The excitement surrounding this historic indictment was somewhat short lived, however; on November 7, 2019, the Investigation Chamber of the Paris Court of Appeals revoked the charge against Lafarge for complicity in crimes against humanity. It did so due to a strict interpretation of the mens rea element of Article 121-7 of the French Penal Code.The other charges – financing of terrorism, breaching an EU embargo, and endangering the lives of others – were all confirmed. But as for complicity in ISIS’s crimes against humanity, the Court of Appeals determined that Lafarge could not have had the intent it deemed necessary for the crime. This decision has been appealed, and the French Supreme Court is expected to hear the case in 2021.

This is an important issue for other States to watch closely, because mens rea is an essential element of criminal charges in domestic courts around the world. France’s interpretation of the level of mens rea required for a charge of complicity in crimes against humanity could provide a framework for other States  as they analyze their domestic laws and make arguments for – or against – similar complicity charges.

In French law, Article 121-7 reads, “a person who knowingly, by aid or assistance, has facilitated its preparation or consumption is an accomplice to a crime or offense.” The Appellate Court interpreted this language to require the corporation to have an intention to be associated with ISIS’s crimes, which it found Lafarge did not have.

The plaintiffs argue, on the other hand, that Article 121-7 does not require an accomplice to share intent to commit a crime, but only knowledge of the perpetrator’s intent. It should be noted that, although applicable only to individuals, the Rome Statute – which specifically punishes crimes against humanity – requires only knowledge of the crime, rather than intent to commit the specific crime, to be found guilty of complicity.  If the French Supreme Court adapts its interpretation and adopts the standard used in the Rome Statute, it is likely that Lafarge will be found complicit. Considering the notoriety of ISIS’s crimes at the time, combined with the fact that ISIS’s crimes directly impacted Lafarge when employees were kidnapped on two separate occasions and only returned after payment, Lafarge can be said to have both implied and direct knowledge of ISIS’s intent to perpetrate crime when Lafarge submitted payments.

If the Supreme Court elects to interpret the mens rea required for complicity separately from the Rome Statute’s requirements for complicity, two questions arise. Is a bifurcation of responsibility between individuals and corporations for complicity in crimes against humanity justified? Secondly, are States doing enough to prevent corporations in their jurisdictions from fueling terrorist regimes? As it currently stands, the answer to both is “no.” This is not just a case about French law; it is a case that may well prove persuasive to countless other States facing the same question of whether and how to hold corporations liable for knowingly funding crimes against humanity. For now, on the issue of intent – all eyes are on France.

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Madeline Young is a recent JD graduate of Emory University School of Law, where she studied in the International Humanitarian Law Clinic and competed in the Phillip C. Jessup International Moot Court Competition in 2020 and 2021. Through Emory’s IHL clinic, Madeline worked with the Office of Global Criminal Justice of the U.S. Department of State, the Marine Corps University, and West Point United States Military Academy. Madeline also authored the article “New Diseases Call for… Archaic Responses? Violating Human Rights in the Sanitary Cordon of Wuhan,” which was published in the Loyola University of Chicago International Law Review.