Today French newspaper Le Monde reports that two NGOs, Sherpa and the European Centre for Constitutional and Human Rights, have brought a criminal complaint in France against the Franco-Swiss cement company LafargeHolcim. Lafarge and Holcim merged in 2015. In 2013, The Economist described Lafarge and Holcim as two of the six leading firms in the global cement industry. Hence, the complaint targets a major player in this multi-million dollar industry.
The complaint focuses on the activities of the Syrian subsidiary of Lafarge, Lafarge Cement Syria, in 2013-2014. Le Monde explains that at the time Lafarge Cement Syria was operating a cement plant in Jalabiya, in the Northern part of Syria, in a zone then controlled by the so-called Islamic State. Le Monde had previously reported that to be able to operate there, Lafarge Cement Syria had to indirectly pay the Islamic State. For example, the cement plant employees as well as businesspeople visiting the plant to buy cement had to pay a fee to the Islamic State to access the plant. Moreover, to operate the plant, the company had to buy oil and pozzolan from local suppliers who themselves were buying from the Islamic State or at least were paying taxes to the organisation. The complaint, which I haven’t seen myself, seems to focus on financing the operations of the Islamic State, in other words on financial complicity for international crimes.
The complaint constitutes an important development for the field of business and human rights for at least three reasons.
1. Business and human rights litigation seems to have taken off in France. This is an important development in itself, after two decades of focus on not-so-successful Alien Tort Statute litigation in the United States. After the Kiobel case was decided by the US Supreme Court in 2013, crushing the hopes of many, I wrote those optimistic words:
The United States are not the only country in the world. While US Courts won’t exercise jurisdiction under the ATS, other countries might be more open to these types of cases against corporations.
Three years later, it is nice to see things moving forward indeed in other countries. ATS litigation has done a lot for our field in terms of attracting attention, but not so much to actually advance corporate liability in courtrooms. We need successes in courts and French courts may be well placed in this respect. I have written about these other cases in France here and here.
2. As far as I know, no one has ever successfully brought a complaint in a case involving corporate liability for financial complicity in international crimes. If this complaint against LafargeHolcim was to at least go to trial, it would be groundbreaking. If I have missed some of these cases, please let me know in the comments section below or tag me on Twitter (@NadiaBernaz).
3. There is a lot of uncertainty when it comes to financial complicity in international crimes. I explored the practical difficulties raised by that notion in a book chapter published in 2014, and pointed to them in a blog post on the Khulumani (Apartheid) case. The complaint against LafargeHolcim could be a great opportunity to get some clarity around the precise conditions under which a company can be held criminally liable of aiding and abetting atrocity crimes.