Author: Azizur Rahman
9 September 2021
3 min read
Various European countries are witnessing an emerging trend in complex, cross-border litigation, where allegations of human rights violations are triggering more and more sensitive, mediatic proceedings.
In France, the groundbreaking decision issued on 7 September by the French Supreme Court (Cour de cassation) revived the ongoing litigation against the French cement conglomerate Lafarge regarding its activities in Syria.
In a widely awaited ruling, the criminal chamber of the Supreme Court overturned the annulment of Lafarge’s indictment for complicity in crimes against humanity issued by the Indictment Chamber (Chambre de l’instruction) of the Paris Court of Appeals on November 7, 2019. At the time, the Court of Appeals had considered that the prerequisite justifying Lafarge’s indictment as an accomplice in crimes against humanity had not been met, in particular as far as criminal intent was concerned. With its historic ruling, the French Supreme Court held a different legal analysis and considered that the cancellation had to be rebutted.
The French Supreme Court further confirmed the company’s indictment on counts of terrorism financing as characterized by the investigating judge but cancelled Lafarge’s indictment for endangering the lives of its employees. The case has been referred back to the Indictment Chamber of the Paris Court of Appeals (under a different composition) for a determination on Lafarge’s indictment as an accomplice in crimes against humanity.
The French cement manufacturer has been under judicial investigation since June 2018. It is suspected of having paid over €13 million to terrorist groups (including ISIS) and other intermediaries through its Syrian subsidiary, Lafarge Cement Syria (LCS), to carry on its business activities in Syria around 2013 and 2014. The investigation was opened following a complaint filed in 2016 by several NGOs (including Sherpa and the European Center for Constitutional and Human Rights ‘ECCHR’) and 11 former Syrian employees of Lafarge. The Supreme Court also ruled on whether these NGOs had standing to join proceedings as victims (partie civile), which the Court only granted to ECCHR.
Currently, the case is still at the stage of the judicial investigation (information judiciaire), which is expected to be lengthy and eventful. Following the Supreme Court’s decision, the Indictment Chamber to which the case has been referred remains theoretically free to rule as it sees fit, including against the Supreme Court’s ruling. However, with this decision the Supreme Court sets a strong precedent for how to characterize complicity in crimes against humanity and paves the way for the criminal investigation to resume into Lafarge’s activities in Syria. As an indicted party, Lafarge would stand trial upon termination of the judicial investigation, alongside several senior executives of the group who are also indicted.
These one-of-a-kind criminal proceedings against Lafarge are only the tip of the iceberg regarding the emergence of business and human rights-related litigation in France. One should also keep in mind the ongoing trial faced by Total for breach of its duty of vigilance in connection with its activities in Uganda. The French Duty of Vigilance Act, which came into force in March 2017, requires parent companies to devise, publish and implement a "vigilance plan" to identify human rights and environmental risks and introduce measures to address them. Litigation for breach of this duty of vigilance is definitely gaining momentum in France, with several major companies (e.g., McDonald’s, Leroy Merlin, Lactalis, etc.) under scrutiny by active NGOs such as Sherpa, which could potentially result in litigation in the near future.
Germany is also witnessing the emergence of human rights-related litigation, especially now that the Supply Chain Act (Lieferkettengesetz) has been enacted. Earlier this week, the ECCHR filed a complaint against major German retail brands including Aldi, Lidl, Hugo Boss and C&A for allegedly benefiting from forced labor of the Uyghur in China. According to an ECCHR representative, the complaint raises the question as to whether entertaining business relationships with suppliers located in the Chinese Xinjiang region - where Uyghur are subject to forced labor - could be characterized as aiding and abetting those international crimes. This line of argument recalls the one successfully put forward by ECCHR in the Lafarge litigation, for which the NGO was recognized as having the standing to act as a victim.
At this stage, the cases highlighted here are all some way from being concluded. They are already, however, high-profile indicators of the legal intertwining of business and human rights.
Aziz Rahman is Senior Partner at Rahman Ravelli and its founder. His ability to coordinate national, international and multi-agency defences has led to success in some of the most significant corporate crime cases of this century and top rankings in international legal guides. He is recognised worldwide as one of the most capable legal experts regarding top-level, high-value commercial and financial disputes.