Corporations Facing the War

‘Faced with international crimes, the question is less that of restoring a world order that does not exist, than of contributing to the establishment of a future order that is still in preparation. The newly created international criminal jurisdictions will not suffice, and it will remain necessary, for a long time to come, for international crimes to be prosecuted before national jurisdictions, which will be invited to extend their criminal jurisdiction beyond the traditional criteria.’ ¹ It is with these words that Antonio Cassese and Mireille Delmas-Marty chose to open their 2002 book Juridictions nationales et crimes internationaux, noting that the lack of experience with international organizations, their limited resources, recognition, or sometimes simply limited scope of their jurisdiction prevented them from responding fully to the problems posed to the international community. The globalization of law was therefore still largely based on a certain globalization of domestic courts, still the first point of contact for these new expectations to ‘organise the word’ better. ²

One year after the full-scale invasion of Ukraine by the Russian Federation, the observation made twenty years ago by these two eminent criminal lawyers remain relevant: The voices calling for the creation of a special tribunal for the repression of the crime of aggression against Ukraine, ³ as well as the multiple proceedings brought before domestic courts to seek the criminal responsibility of transnational corporations for their alleged ties with the Russian Federation, exemplify the difficulty for international criminal justice—and more particularly for the International Criminal Court—to deal with global challenges.

For businesses, these challenges arise in part from the fact that society has taken on new ‘forms of governmentality’ ⁴ as a result of the new gaps created by globalization. Chief amongst them are the cracks arising between a de-territorialized market and regulatory states that are no longer homogeneous and superimposed. Evolving in a borderless world, businesses tend to deploy a global strategy, conceived on a supranational scale, and to build governance and regulatory systems independent of state intervention and state borders, ⁵ to satisfy normative expectations that go beyond their traditional shareholder-value maximisation focus. ⁶ It is increasingly acknowledged that transnational corporations, beyond their purely economic clout, have a structuring power that makes them objects and sometimes subjects of politics or even geopolitics.

In this regard, the UN Guiding Principles on Business and Human Rights ⁷ recommend that states establish legal frameworks to uphold certain human rights throughout the international supply chain, including ensuring that when ‘[business-related human rights abuses] occur within their territory and/or jurisdiction those affected have access to effective remedy’. The principles emphasize the central role of transnational corporations and other business enterprises in the global economy, particularly where states are share governmental responsibilities with private actors (i.e., the provision of public goods and services), or in circumstances where state authority is weakened, such as in the midst of war zones. In this context, new normative expectations are projected onto corporations, sources of responsibility that sometimes take the form of legal liability, including criminal liability.

An increase in lawsuits against transnational corporations for their activities in the context of armed conflicts

In December 2018, two former managers of a local Ford Motor plant were criminally convicted following the kidnapping and torture of twenty-four company employees during the Argentine dictatorship from 1976 to 1983, ‘the company [having] acted in a coordinated manner with the military’. ⁸ On December 6, 2021, Rohingya refugees in the United States filed a class action lawsuit against Facebook, accusing the social network of having ‘materially contributed to the development and widespread dissemination of anti-Rohingya hate speech, misinformation, and incitement of violence’. ⁹ Plaintiffs argued that Facebook had designed its system and underlying algorithms in a manner that ‘rewarded users for posting, and thereby encouraged and trained them to post, increasingly extreme and outrageous hate speech, misinformation, and conspiracy theories attacking particular groups.’ ¹⁰ In September 2023, the two top executives of the Swedish company Lundin Petroleum will appear in court on charges of aiding and abetting war crimes allegedly committed in Sudan between 1997 and 2003, fuelling the oil wars in the south of the country. ¹¹

These examples, chosen from among many others, bear witness to a global movement aimed at increasing the accountability of transnational corporations for the potential adverse effects of their activities, especially in the context of armed conflicts. Recent events provide striking illustrations. On the one hand, economic sanctions, which have become the instrument of choice of European foreign policy, ¹² have a direct impact on the conduct of Western businesses, even to the point of forcing them to withdraw from certain jurisdictions, as shown in the context of sanctions against Iran, Russia and Myanmar, for example. On the other hand, beyond the technical reach of sanctions, the activities of a company, and sometimes its mere presence in a given country, have given rise to intense legal—and even ethical or moral—discussions on the possibility of maintaining an economic activity in a country at war. The strict legal or regulatory framework is no longer perceived as being sufficient to set the boundaries of the authorised and the prohibited.

France as a laboratory?

This litigation seems to have two particularities in France: the proceedings aim at the companies themselves, and not only at their directors, and are largely based on criminal provisions. 

Of course, criminal prosecutions of legal persons in the context of armed conflicts are not the prerogative of the French courts. The Syrian conflict provides recent examples. On February 7, 2019, the Antwerp court convicted three Flemish companies (AAE Chemie Trading, Anex Customs and Danmar logistics) for shipping 168 tons of isopropanol—used, among other things, to synthesize sarin gas—to Syria between 2014 and 2016 without having obtained the export licenses required under a 2012 European regulation. ¹³ In a case with a fairly similar factual background, on December 14, 2021, a Danish court sentenced the shipping company Dan Bunkering and its parent company, Bunker Holdings, to nearly $4 million in fines, for having sold 172,000 tons of kerosene between 2015 and 2017 for use in Syria through Russian companies, in violation of sanctions enacted by the European Union. ¹⁴  

Nevertheless, in recent years, its particular historical, sociological, and legal features have turned France into a ‘laboratory’ for criminal proceedings against companies for their activities in the context of armed conflict.  To date, thirteen criminal proceedings (three preliminary investigations and ten judicial inquiries) have been initiated in France against companies for complicity in crimes against humanity, complicity in genocide, complicity in war crimes, or complicity in murder or attempted murder, complicity in acts of torture or other inhuman or degrading treatment or punishment, complicity in enforced disappearance, committed in the form of financing of criminal groups or regimes, the supply of arms, or the export of dual-use items used in the commission of acts of violence against civilian population. The proceedings target companies or their directors and managers. Such complaints are now centralized through a new National Anti-Terrorism Prosecutor’s Office (Parquet national antiterroriste or ‘PNAT’)—created by the 2018-2022 law reforming the justice system ¹⁵ —which acts as the public prosecutor in cases involving potential international crimes.

A historical context: the special role of civil society in France

Philippe Aghion has described constitutions as ‘incomplete contracts’: the role of civil society is to give substance to traditional checks and balances, to move the control of executive power from the notional to the effective, and thus to ensure that these constraints are effectively implemented or activated whatever new contexts arise. ¹⁶ Civil society is often a necessary complement to the state-market duo, as shown by Bowles and Carlin regarding the effort to contain the Covid pandemic. ¹⁷ Associations in particular are becoming increasingly important at both national and international levels, pushing for a coherent policy balancing world trade, environmental concerns and human rights, and relying—for the defence of a global general interest—on a strategy of ‘self-legitimization’ or ‘self-institution’ that would replace that of ‘self-limitation’. ¹⁸

The historical context makes associations all the more important in France. The adoption of the 1901 Law of Associations was a difficult process, building on decades-long debates and no less than 33 projects, proposals and reports. Above all, it marks the culmination of the great liberal legislative work of the Third Republic, in the wake of the repeal of the Le Chapelier Law, ¹⁹ and enshrines a freedom that Tocqueville considered to be the first of freedoms: ‘[i]n democratic countries the science of association is the mother science; the progress of all the others depends on the progress of that one’. ²⁰ The place given to associations in French criminal procedure is also the outcome of a long history: the protection of young children, a technical subject that is not well known to the public prosecutor’s office, justified historically the search for a ‘substitute public prosecutor’. 

This explains why associations are authorised to initiate proceedings, in specifically designated areas (fight against racism or discrimination, fight against sexual violence and sexual harassment, defence and protection of animals, fight against exclusion and poverty, etc.), based on specific offences (eg, ‘discrimination’ for associations fighting against racism or ‘pollution’ for associations for the protection of the environment, etc.) and subject to a general condition of seniority (the association must have been registered for at least 5 years on the date of the facts for which it is filing suit).

In matters of alleged crimes against humanity and war crimes, ²¹ acts of terrorism, ²² or—since a law of August 5, 2013—human trafficking, slavery, and pimping, ²³ eligible associations are invested with a real right to initiate public action, parallel to that of the public prosecutor. In these cases, contrary to the usual conditions for civil action within criminal proceedings, the law does not require proof of direct or indirect damage caused by the offence to the interest defended by the association. This possibility—to become a private party in a criminal prosecution—doesn’t exist in England or the United States, where the victim herself is not party, but only a witness, in criminal proceedings. In Germany, becoming a private party to criminal proceedings is only conceivable through a voluntary intervention once they are initiated: the victim may support or back up the public prosecutor’s action, but cannot herself initiate the criminal proceedings.

As far as the protection of human rights is concerned, associations first assume a political role (advocacy, denunciation, alert)—their media or lobbying actions having a growing influence on internal, European or international political choices—but their legal role is also growing: they ‘invite themselves’ to the trials. ²⁴ Today, they seem to have succeeded in their ‘necessary aggiornamento’ ²⁵ in terms of skills and resources, which contributes to their visibility and impact. Multiple recent criminal proceedings brought against transnational corporations for crimes under international law have been initiated by members of the civil society. One example is the investigation of BNP Paribas concerning the Rwandan genocide: the French bank is accused of complicity in genocide and crimes against humanity by Sherpa, the Collectif des parties civiles pour le Rwanda and Ibuka France, for having financed the purchase of eighty tons of arms for the Hutu militia in 1994. The investigations appear to be still ongoing, although the Paris prosecutor’s office has requested that the case be dismissed in April 2021. ²⁶ Several complaints were also filed following the Russian invasion of Ukraine, such as the one filed on October 13 by the Darwin Climax Coalition and Razom We Stand for ‘complicity in war crimes’ against the TotalEnergies group. This request has since been dismissed by the Paris Public Prosecutor’s Office, for whom the offence was insufficiently characterized. ²⁷

Associations are now essential actors in triggering public action in the fight against human rights violations abroad, and French civil society is turning naturally to the law in order to seek the criminal responsibility of corporations, most often in parallel with that of their directors.

A legal context: the evolution of the conditions for the criminal liability of legal persons for international crimes

Many states have now rejected the traditional principle of societas delinquere non potest. The concept of corporate criminal liability has long been accepted in common law jurisdictions and has more recently spread to several other domestic criminal law systems, including the French one—since the 1992 Penal Code—although it is not yet universally accepted. Among our closest neighbours, Germany continues to limit criminal liability to natural persons, while in Italy, the criminal liability of legal persons can only be sought for a limited number of offences, which do not include, for example, international crimes. Recall that at the international level, the International Criminal Court has no jurisdiction over legal persons: ²⁸ the French proposal in this regard received no support at the 1998 Rome Conference. The Rome Statute’s principle of complementarity, ²⁹ which depends on the compatibility of criminal law in the jurisdictions of States Parties, would have been hamstrung by the too small number of national jurisdictions that held corporations liable under criminal law at the time, as opposed to the more universal tort liability.

As pointed out by Juliette Lelieur, ³⁰ at least ‘at first glance, French criminal law seems to be favourable to the prosecution of companies for international human rights violations’, in particular because of the scope of jurisdiction (and the possible plurality of criminal jurisdictions) granted to French criminal courts in matters of international crimes. ³¹ The jurisdiction of French criminal courts to deal with violations of fundamental rights committed abroad by transnational companies headquartered in France is, by assumption, likely to be based on the active personal jurisdiction of French criminal law, which results from the French nationality of the perpetrator or the victim of the offense. ³² It may also in certain cases result from territorial jurisdiction, the French territory being defined as ‘any territory over which the sovereignty of France is exercised and governed by its laws’, ³³ including ‘the maritime and air spaces linked to it’. ³⁴ Exceptionally, jurisdiction can be asserted over acts committed abroad but which can be linked to acts committed on the French territory. Finally, French courts have universal jurisdiction over any person who has allegedly committed one of the offences specially listed by the Code of Criminal Procedure abroad but is located in France. ³⁵ This includes torture and enforced disappearance and, for persons having their residence in France, the crime of genocide. Other crimes against humanity and war crimes defined in the Criminal Code are also covered if the acts are punishable under the legislation of the state where they were committed or if that state or the state of which the suspected person is a national is a party to the Rome Convention of 1998.

The contours of criminal liability continue to be defined by case law, and particularly by the criminal chamber of the Cour de cassation, as illustrated by the case regarding Lafarge’s activities in Syria. In this particularly serious case, the cement company, which had built a cement plant in northern Syria, was accused by two NGOs (Sherpa and ECCHR) of having, via its local subsidiary, paid several million dollars to the Islamic State to facilitate the crossing of checkpoints by its employees, but also of having purchased raw materials from quarries controlled by the terrorist group and finally of having sold cement to distributors linked to the jihadists. ³⁶ On June 28, 2018, Lafarge became the first company to be indicted on charges including complicity in crimes against humanity, financing of a terrorist enterprise, and endangering the lives of others, following a request from the Public Prosecutor.

In four decisions dated September 7, 2021, ³⁷ the criminal chamber of the Cour de cassation reversed the annulment by the judges of the Paris Court of Appeal of the indictment of Lafarge. Following the approach it had taken in the Papon case ³⁸ regarding complicity in crimes against humanity, the criminal chamber stated that under the terms of Article 121-7 of the Criminal Code, ‘it is required neither that an accomplice to a crime against humanity belong to the organisation, where applicable, that is guilty of this crime, nor that he support the formulation or execution of a concerted plan against a section of the civilian population in the context of a generalised or systematic attack, nor even that he approve the commission of the crimes under ordinary law constituting the crime against humanity.’ ³⁹ The court further states that ‘[i]t  is sufficient that the accomplice be aware that the main perpetrators are committing or will commit such a crime against humanity and that, through his aiding or abetting, he is facilitating the preparation or execution of said crime’ ⁴⁰ , before concluding that ‘knowingly paying a sum of several million dollars to an organisation whose purpose is purely criminal is sufficient to be considered complicity by aiding and abetting’ ⁴¹ . This last statement is particularly important: the voluntary nature of the act of participation and the accomplice’s awareness of contributing to the principal offence are sufficient, without requiring that the accomplice share the principal offender’s intention, and without the commercial pursuit of an activity being an exemption from criminal liability.

For many commentators, the particular role of civil society in France combined with this favourable legal framework put Paris at the forefront of the defence of fundamental freedoms. Litigation of this type, fuelled by an unstable international situation, can develop further in the future—even if, for the time being, this conclusion remains partially open-ended, as none of the cases cited above has been the subject of a final ruling. 

Concluding remarks

The criminal liability of legal persons for international crimes remains today an uncharted territory in which an increasing number of disputes are attempting to delimit the boundaries of a field that is itself confronted with new or at least long unexplored problems. Nevertheless, at least two basic trends can be identified.

The first trend is certainly the new role that courts are expected to assume. Confronted with a growing number of cases, courts may face material and technological limitations. More fundamentally, their legitimacy is sometimes challenged in highly political or mediatised cases, which are at risk of being instrumentalised. The role of the courts is becoming increasingly complex: to ensure that courts are legitimate, and the public trusts in their decisions, it is necessary to take into account broader considerations in their deliberation process, including from a technical point of view. The generalisation of specialized units, such as the National Anti-Terrorism Prosecutor’s Office, and the diversification of recruitment channels, notably through the employment of specialized assistants, show that there is a real concern for these issues. 

The second trend is the new relationship between criminal law and human rights in the light of these disputes. As a group of eminent Belgian academics foresaw a few years ago, human rights have entered into a dialectical relationship with criminal law. ⁴² If human rights have historically served mainly as a ‘shield against the potential excesses of criminal law’, one can ask, following these authors, if an opposite function has not also evolved, transforming ‘human rights into the “sword” of criminal law’, and leading to an inevitable ‘criminalisation of fundamental rights’. ⁴³ The extent of recent litigation seems to point in this direction.

1. Antonio Cassese and Mireille Delmas-Marty (dir.), Juridictions nationales et crimes internationaux (Presses Universitaires de France 2002).
2. Sandrine Kott, Organiser le monde (Seuil 2021).
3. See notably the arguments of Gordon Brown and Philippe Sands in favour of the creation of specialised tribunal to prosecute the crime of aggression against Ukraine, <https://gordonandsarahbrown.com/wp-content/uploads/2022/03/Combined-Statement-and-Declaration.pdf>. See also the contribution to this issue by Federica D’Alessandra.
4. Michel Foucault, Naissance de la biopolitique, Cours au Collège de France (Gallimard-Seuil 1978-1979).
5. Alain Supiot (dir), L’entreprise dans un monde sans frontières (Dalloz 2015).
6. Hugo Pascal, ‘La nouvelle place des entreprises dans la définition et la réalisation des choix collectifs’, in Mélanges ouverts en l’honneur de Mireille Delmas-Marty (Mare & Martin 2023).
7. https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf
8. ‘Argentina: two ex-Ford executives convicted in torture case’, The Guardian, 11 December 2018 (https://www.theguardian.com/world/2018/dec/11/pedro-muller-hedro-sibilla-ford-executives-argentina-torture-case).
9. US District Court, Northern District of California, J. Doe v. Meta Platforms Inc., class action complaint, 6 December 2021 (https://www.classaction.org/media/doe-v-meta-platforms-inc.pdf). See Shannon Raj Singh, ‘Move fast and break societies: the weaponization of social media and options for accountability under international criminal law’ (2019) 8 Cambridge International Law Journal 2, 331–342.
10. Ibid.
11. Harrison A Meyer, ‘Swedish Prosecution of Corporate Complicity in Sudanese War Crimes’ N.Y.U. Journal of International Law & Politics, 7 April 2022 (https://www.nyujilp.org/swedish-prosecution-of-corporate-complicity-in-sudanese-war-crimes/).
12. See Ramona Bloj, ‘Les sanctions, instrument privilégié de la politique étrangère européenne’, (2021) Question d’Europe 598. For a historic account, see Nicholas Mulder, The Economic Weapon. The Rise of Sanctions as a Tool of Modern War (Yale University Press 2022). See also in this volume the contributions by Régis Bismuth, Leanna Burnard & Mira Naseer and Anton Moiseienko.
13. ‘Belgian exporters found guilty of sending chemicals to Syria’, Politico, 7 February 2019.
14. ‘Danish fuel trader convicted over exports to war-torn Syria’, Reuters, 14 December 2021.
15. Law no 2019-222 of 23 March 2019 ‘Loi de programmation 2018-2022 et de réforme pour la justice’.
16. Philippe Aghion, Céline Antonin and Simon Bunel, The Power of Creative Destruction (trans. Jodie Cohen-Tanugi, Harvard University Press 2021).
17. Samuel Bowles and Wendy Carlin, ‘The coming battle for the COVID-19 narrative’, Voxeu, 10 April 2020 (https://cepr.org/voxeu/columns/coming-battle-covid-19-narrative).
18. Guy Haarcher, ‘La société civile et le concept d’autolimitation’, in B. Frydman (dir.), La Société civile et ses droits (Bruylant 2003), 147-160.
19. The Le Chapelier Law of June 1791 (named after reformer Jean Le Chapelier) made any association of workers or of employers, as well as any strikes, illegal. The law was in force until 1884. See https://www.britannica.com/biography/Jean-Le-Chapelier#ref155864.
20. Alexis de Tocqueville, Democracy in America (trans. Harvey C Mansfield and Delba Winthrop, University of Chicago Press 2000), 492.
21. Art 2-4 of the Code of Criminal Procedure (CCP).
22. Art 2-9 of CCP.
23. Art 2-9 of CCP.
24. Isabelle Soumy, L’accès des ONG aux juridictions internationales (PhD thesis, University of Limoges, 30 September 2005).
25. William Bourdon, Face aux crimes du marché (La Découverte 2010).
26. ‘Génocide au Rwanda : en France, des enquêtes tardives et sous tension’, AFP, 7 May 2022.
27. ‘La plainte contre TotalEnergies pour ‘complicité de crimes de guerre’ en Ukraine classée sans suite’, Le Monde, 16 January 2023.
28. David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 203 (Princeton University Press 2012).
29. William A Schabas, The International Criminal Court (4th ed, Oxford University Press 2011), 190-199.
30. Juliette Lelieur, ‘French Report on Prosecuting Corporations for Violations of International Criminal Law’ in Sabine Gless and Sylwia Broniszewska-Emdin (dir), Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues (International Colloquium Section 4, Basel, 21-23 June 2018).
31. See Didier Rebut, Droit pénal international (4th ed., Dalloz 2022).
32. Art 113-6 of the Criminal code.
33. Cass. Crim. 23 February 1884 (Bull. crim. no 52).
34. Art 113-1 of the Criminal code.
35. As Juliette Lelieur points out, this requirement that the person be in France makes it difficult to apply universal jurisdiction to legal persons, absent any precision on how to characterize the presence of a foreign legal person on French territory. She underlines that as of today, ‘there have been no examples of prosecution of a company under the principle of universal jurisdiction’, see Juliette Lelieur, ‘French Report on Prosecuting Corporations for Violations of International Criminal Law’, op. cit.
36. See eg, ‘Lafarge en Syrie : la Cour de cassation invalide l’annulation des poursuites pour « complicité de crimes contre l’humanité’, Le Monde, 7 September 2021.
37. Cass. Crim. 7 September 2021, nos 19-87.367, 19-87.376 and 19-87.662.
38. Cass. Crim. 23 janv. 1997, no 96-84.822.
39. Cass. Crim. 7 September 2021, no 19-87.367, at [66].
40. Ibid at [67].
41. Ibid, at [81].
42. Yves Cartuyvels, Hugues Dumont, François Ost, Michel Van de Kerchove and Sébastien Van Drooghenbroeck, Les droits de l’homme, bouclier ou épée du droit pénal ? (Bruylant 2007).
43. Ibid.