An appeals court in Paris has ruled that companies can be prosecuted for contributing to crimes against humanity if their actions support terrorism, even indirectly—a decision that, if confirmed, sets a new precedent for liability of international businesses.
The ruling, handed down Wednesday by the Paris Court of Appeal, relates to charges filed in 2018 against Lafarge, a French cement company, over its operations in Syria between 2012 and 2014.
Lafarge, one of the largest companies in France, had been found by judicial investigators to have paid more than €13 million to various armed groups, including the Islamic State, to be able to continue its activities in Syria during the country’s civil war.
The company said the payments were to ensure security at a Lafarge cement plant and safe passage for employees commuting to work there, according to a New York Times investigation. Employees at the plant claimed that Lafarge disregarded their safety by pressuring them to continue working despite the dangers in the country at the time, according to a complaint filed by two human rights NGOs.
In 2018, Lafarge and eight former executives were indicted for complicity in crimes against humanity. The appeals court dismissed the indictment in 2019, saying that the company could not be held liable for the groups’ terrorist activities.
The employees then appealed to the Court of Cassation, France’s highest court, for review of the application of law. The high court sent the case back to the appeals court in September 2021 for rehearing.
The decision Wednesday “confirms the landmark decision” by the high court that “any natural or legal person may be complicit in crimes against humanity even if there is no intention to associate itself with the commission of these crimes, and that it is not necessary to belong to the criminal organization or to adhere to the conception or execution of the criminal plan,” Elise Le Gall and Matthieu Bagard, Paris-based lawyers who represented former employees of Lafarge in Syria, said in a statement.
Lafarge’s owner, the Swiss construction materials company Holcim, said it would appeal the decision to the Court of Cassation.
“We absolutely do not agree” with this decision, which is not “a judgment on the merits of the case but aims to determine the extent of the charges under investigation,” the company said in a statement.
While the ruling is narrowly drawn to apply only to cases involving terrorist groups, it is significant because it could establish a precedent of extended liability in such cases, Kiril Bougartchev, a founding partner of Bougartchev Moyne, a white-collar criminal defense firm in Paris, told Law.com International.
“We have no case law to explain that it is normal to consider that being an accomplice to a crime does not imply the will to participate in the crimes of terrorists,” Bougartchev, a former partner at Linklaters and Gide Loyrette Nouel, said in an interview.
He added that even though cases involving terrorism were relatively rare, the question of intent was critical in any criminal case—and that in the Lafarge case, that question loomed large.
“Did the company intend to pay people to commit crimes?” he said. “Or were they intending to pay to let their people earn salaries?”
The European Center for Constitutional and Human Rights, which filed the latest appeal on behalf of the employees, was represented by a Paris-based team led by Grégoire Rialan, a partner at Corto Partners, a human rights and environmental litigation boutique.
Darrois Villey Maillot Brochier, which represented Lafarge, according to published reports, did not immediately respond to a request for comment.
