Introduction

Matrix organization

Mergers by absorption

Risks related to the expansion of the scope of criminal liability of legal entities

Validity conditions

Proof of delegation

Exemption from individual liability of delegator

Attribution of offense to legal entity

Delegations of authority

Criminal risk management within business organizations

Complicity in crimes against humanity

Breaches of secrecy

Personal data breaches

Theft

Extortion

Blackmail

Fraud

Misappropriation

Receiving/concealment of unlawfully obtained property (recel)

Attacks on automated data processing systems

Money laundering

Misappropriation by public official (concussion)

Corruption and influence peddling

Unlawful acquisition of an interest

Favoritism

Forgery and use of forgeries

Violation of Criminal Code

Offenses under the Monetary and Financial Code

Offenses under the Commercial Code

Environmental Code violations

Offenses arising from other codes

Types of offenses

Offenses under the Criminal Code, the Commercial Code, or the Environmental Code, Criminal procedure

White Collar Crime (en cours)

Can an undertaking be complicit in a crime against humanity?
Until recently, such a question would have seemed unimaginable in a treatise on white collar crime. However, the current geopolitical situation is creating new risks for undertakings, including in the areas of offense that are normally reserved for war criminals. A recent case involving a major French group provides a striking illustrati …

Can an undertaking be complicit in a crime against humanity?

Until recently, such a question would have seemed unimaginable in a treatise on white collar crime. However, the current geopolitical situation is creating new risks for undertakings, including in the areas of offense that are normally reserved for war criminals. A recent case involving a major French group provides a striking illustration of this.

In this case, a French building materials company maintained the operation of a cement factory in northern Syria through a local subsidiary during the civil war, from 2011 until its hasty evacuation in 2014. The fighting on the territory and its occupation by armed groups, including the Islamic State (IS) organization, led other multinationals to leave Syria as early as 2012, when the European Union established an embargo. The continuation of activities for the French company involved using intermediaries to negotiate the payment of funds to armed factions or trade with them to secure the area. Several associations and Syrian employees have joined as civil parties to denounce acts of financing a terrorist enterprise, complicity in war crimes and crimes against humanity, forced labor, and endangering the lives of others.

In June 2017, the Paris prosecutor's office opened an investigation for financing a terrorist orga. As part of this judicial investigation, the French company is suspected of having paid, through its Syrian subsidiary, nearly EUR 13 million euros to terrorist groups including IS, as well as to intermediaries, in order to maintain the operation of its cement factory in Syria despite the civil war and the kidnappings and threats faced by its employees. In June 2018, the company was indicted as a legal entity. It was investigated for complicity in crimes against humanity, financing a terrorist organization, violation of an embargo, and endangering the lives of former employees of the Syrian plant. In November 2019, following its referral by the cement company, the investigating chamber of the Paris Court of Appeal annulled the indictment for complicity in crimes against humanity against the company. The civil claimant associations decided to appeal to the Court of Cassation. On 7 September 2021, the Court of Cassation overturned the 2019 ruling of the Paris Court of Appeal that annulled the indictment of the cement company for complicity in crimes against humanity. On 18 May 2022, the Paris Court of Appeal, differently composed, confirmed the indictment of the legal entity for complicity in crimes against humanity. The group appealed to the Court of Cassation.

In its ruling, the Court of Cassation provided important clarifications on the legal definition of complicity in crimes against humanity. It first recalled that an indictment implies the existence of serious or consistent evidence likely to make the commission of an offense plausible. The investigating chamber (chambre de l'instruction) has sovereign authority to assess the existence and probative value of the facts that may justify an indictment. Consequently, the Court of Cassation's review in this area is limited to ensuring that the investigating chamber did not commit a legal error and that its reasoning is neither insufficient nor contradictory. In 2019, the investigating chamber held that there was sufficient evidence to consider that crimes against humanity had been committed by armed groups, such as a concerted plan of atrocities, widespread and systematic attacks on the civilian population, and that the French company had provided them with funds while having actual knowledge of the nature of the atrocities. However, it found that there were no serious or consistent indications of the company's complicity: the financing of the armed groups was intended to allow it to continue its activity in a war zone, not to associate with the crimes committed. In their appeal, the civil parties argued that complicity in crimes against humanity does not require that the perpetrator intended to associate with their commission.

Pursuant to Article 212-1 of the Criminal Code, a crime against humanity is constituted when committed as part of a concerted plan against a civilian population group within the framework of a widespread or systematic attack, including, notably, intentional harm to life, enslavement, forced population transfer, torture, rape, forced prostitution, persecution of any identifiable group or community for reasons, notably, of a religious nature.

Under Article 121-7 of the Criminal Code, a person is an accomplice to a crime or misdemeanor if they knowingly, by aid or assistance, facilitated its preparation or commission.

It is therefore sufficient for the accomplice to be aware that the principal perpetrators are committing or will commit a crime against humanity (moral element) and that, through their aid or assistance, they facilitate its preparation or commission (material element). However, the text does not require that the accomplice to a crime against humanity belong to the organization, if applicable, guilty of this crime, nor that they adhere to the conception or execution of such a concerted plan, nor that they approve the commission of ordinary law crimes constituting the crime against humanity.

It is therefore not surprising that the decision of the investigating chamber, which annulled the indictment of the undertaking for complicity in crimes against humanity, had held that financing an organization likely to commit crimes against humanity was intended to enable the continuation of its activity and did not demonstrate an intention to associate with the crimes against humanity perpetrated by this entity, was overturned by the Court of Cassation. Indeed, knowingly paying several million dollars to an organization whose sole purpose is criminal was sufficient to establish complicity by aid and assistance, regardless of whether the accomplice acted with the aim of pursuing a commercial activity, a circumstance related to motive and not to the intentional element.

This decision, in accordance with the provisions of Article 121-7 of the Criminal Code, aligns with the Court of Cassation's jurisprudence  regarding the application of Article 6 of the Statute of the International Military Tribunal at Nuremberg , which does not require that the accomplice to crimes against humanity adhered to the policy implemented by the perpetrator. Since Article 121-7 makes no distinction based on the nature of the principal offense or the status of the accomplice, the Court of Cassation's analysis applies to legal entities as well as natural persons.

Under Article 121-6 of the Criminal Code, the accomplice to the offense, as defined in Article 121-7, shall be punished as the perpetrator. Article 213-3 of the same Code provides that legal entities held criminally liable for crimes against humanity, under the conditions set out in Article 121-2, in addition to the fine provided for in Article 131-38 , may face the penalties mentioned in Article 131-39 such as dissolution, exclusion from public contracts, prohibition from making a public offer of financial securities or having their financial securities admitted to trading on a regulated market, prohibition from receiving any public aid, and confiscation of all or part of their assets or, subject to the rights of the bona fide owner, assets they have at their free disposal. The perpetrator or accomplice of a crime against humanity cannot be exempted from liability solely because they performed an act prescribed or authorized by legislative or regulatory provisions or an act ordered by legitimate authority. However, the court takes this circumstance into account when determining the penalty and setting its amount .

This ruling marks a true turning point in the criminal liability of multinationals. The Criminal Chamber effectively opens the way for the first time to the indictment of a legal entity for complicity in crimes against humanity. Unfortunately, this case is not an exception. Indeed, a French banking institution is also the subject of a judicial investigation by the crimes against humanity division of the Judicial Court of Paris concerning its alleged complicity in the commission of crimes against humanity in Sudan between 2002 and 2008. By pleading guilty to the American authorities, the bank in question admitted to having provided the Sudanese government with access to billions of US dollars and the US financial system, which it could not have had without its assistance. In this case, the investigating judges will have to determine whether, for a bank, acting as a central bank as established by the American authorities in Sudan, can be analyzed as complicity in crimes against humanity.

These cases illustrate the considerable risks of corporations financing repressive regimes, which can be interpreted as aiding and abetting the commission of crimes against humanity thus engaging their criminal liability. They call for the utmost vigilance from French undertakings operating in conflict zones. This ruling is part of the current judicial trend extending the scope of criminal liability of large corporate groups, which can now be held accountable for any type of offenses, including the most serious ones, committed by their subsidiaries in France or abroad, particularly due to their organizational structure . It is therefore essential for undertakings to implement criminal risk prevention programs to avoid the commission of these offenses.

Cass. crim., 23 January 1997, No 96-84.822.

Treaty that established the offense of crimes against humanity.

Criminal Code Art. 131-38: the maximum rate of the fine applicable to legal entities is equal to five times that provided for natural persons by the law that punishes the offense. When it is a crime for which no fine is provided against natural persons, the fine incurred by legal entities is EUR 1 million.

Cass. crim., 16 June 2021, LawLex202200001378JBJ.

White Collar Crime (en cours)

21. Complicity in crimes against humanity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

21. Complicity in crimes against humanity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise