On September 7, 2021, the French Cour de Cassation (the highest judicial court) overruled (in French) the Paris Court of Appeal decision to dismiss the claim of complicity in crime against humanity against Lafarge. Lafarge’s Syrian subsidiary, more than 98% owned by the French parent company, paid over $15 million to terrorist groups, including ISIS through middlemen between 2013 and 2014 to maintain the activity of its cement plant.
Financing terrorism
The Court first confirmed the charge for financing terrorism. First the Court recalled the amount of payments made to various terrorist groups who successively occupied the territory where the cement plant operated to secure the movement of the factory’s employees through the various routes leading from their homes to their workplaces, some of which were controlled by ISIS (§37-39). Second the Court recalled that, at that time, the company could not ignore the fact that ISIS was a terrorist organisation as a memo from a meeting hold in September 2013 showed (§40). Finally, the Court recalled the UN Security Council’s resolution 2170/2014 prohibited any kind of financial support to various terrorist groups, including ISIS (§41).
The Court concluded that “it is sufficient for the facts to be established that, the financer knows that the funds provided are intended to be used by the terrorist undertaking for the purpose of committing a terrorist act, whether or not that act occurs, regardless of whether he or she intends that the funds be used for that purpose” (§43).
Complicity in crimes against humanity
Under the French penal code, “an accomplice to an offence or a crime is a person who knowingly, by aid or assistance, facilitated its preparation or commission” (§61). Subsequently, the question raised by the Court was whether complicity should be defined differently when crimes against humanity are at issue (§62).
The Court noted that the penal code does not require the accomplice to a crime against humanity to be a member of the organisation, if any, guilty of that crime, nor does it require the accomplice to participate in the design or execution of a concerted plan against a civilian population group as part of a widespread or systematic attack, nor does it require the accomplice to approve the commission of the common crimes constituting the crime against humanity (§66). Therefore, it is sufficient that the accomplice knows that the perpetrators are committing or about to commit such a crime against humanity and that by his aid or assistance he facilitates its preparation or commission (§67).
The Court added that a different interpretation “which would require the accomplice to a crime against humanity to participate in the conception or commission of a concerted plan, would have the consequence of leaving many acts of complicity unpunished, whereas it is the multiplication of such acts that allows the crime against humanity” (§70).
The Court concluded that “the deliberate payment of several million dollars to an organisation with a purely criminal purpose is sufficient to constitute aiding and abetting” (§81) and that “it is irrelevant whether the accomplice is acting in furtherance of a commercial activity” (§82).
By this ruling the Cour de Cassation provided essential clarifications on the definition of complicity in crimes against humanity that will guide the Paris Court of Appeal to which the case is referred back. To be continued.