He “persists” and sign. Yannick Jadot maintained his accusations against TotalEnergies, Thursday March 24, on the antenna of franceinfo. The environmental candidate for the presidency accuses the French group of “complicity in war crimes” in Ukraine. “The Total group works with Russian partners who are closely linked to the highest summit of the Putinian state, Total knows perfectly well the war crimes that are perpetrated in Ukraine, Total knows perfectly well that, through its activities, it contributes to financing groups closely linked to this war and therefore it is called complicity in a war crime”he hammered, reiterating remarks made at the Made in France show in Bordeaux, on March 11.
Since the beginning of the war, the Ukrainian President, Volodymyr Zelensky, and certain Western leaders have regularly accused the Russian army of committing “war crimes”. The Attorney General of the International Criminal Court (ICC) opened an investigation on March 2 for this charge. Bombings against civilians, schools, hospitals, residential buildings; attacks on nuclear power plants; use of cluster bombs… Charges of offenses constituting war crimes against Russian troops have been numerous since the start of their offensive on Ukrainian soil a month ago. Could the French oil giant therefore be prosecuted for “complicity in war crimes”, as Yannick Jadot claims?
TotalEnergies took offense at being associated with these possible abuses. “When Mr. Jadot accuses the 100,000 employees of Total [de crimes de guerre]it’s very serious, it’s an insult, (…) it’s not acceptable”, said the CEO of the company, Patrick Pouyanné, on RTL on Wednesday. The day before, the group had announced that it would stop all purchases of Russian oil or petroleum products before the end of 2022 before “the escalation of the conflict” in Ukraine. But gas purchases will continue. “TotalEnergies, supported by [Emmanuel] Macron, makes some concessions, but maintains most of his activities in Russia, in full knowledge of the war crimes that they help to finance. Yes, it is to be an accomplice”had launched Yannick Jadot on Twitter, claiming that Patrick Pouyanné debate with him.
The “debate” could well take place in court. In a statement sent to AFP, TotalEnergies announced that it was launching “immediately an action for defamation” against “unacceptable remarks”, “extremely serious and unfounded”. “To be an ‘accomplice in war crimes’ is to provide direct aid to a State or to a criminal organization that is the perpetrator of the crimes”underlined the group, affirming to continue “its gas purchase operations in Russia to resell it, in particular in Europe for the benefit of European consumers”.
But what does international law say on the subject? As Jelena Aparac explains to franceinfo, professor of public international law, companies can be prosecuted under international humanitarian law, which applies in armed conflict. Nevertheless “the criteria in terms of evidence are very demanding”.
“To go beyond a reasonable doubt, it would have to be proven that the economic activities [de Total en Russie] supported these war crimes.”
Jelena Aparac, Professor of Public International Lawat franceinfo
The specialist draws attention to the fact that “few investigators are specialized in corporate responsibility for international crimes” and they come up against “logistical obstacles”. To access any evidence, such as internal company documents, cooperation with the investigators of the countries concerned (in this case, Ukraine and Russia) is necessary. Complicated investigations to be carried out in a context of conflict. Jelena Aparac also insists on “the concept of intention in the complicity of companies: “It takes evidence to prove that the company intended to support a war machine.”
On this point, case law has evolved concerning “crimes against humanity”, an offense also targeted by the ICC investigation into the war in Ukraine. In the case of the cement manufacturer Lafarge, suspected of having paid money to the jihadist group Islamic State to maintain until 2014 the activity of its cement factory in Syria in the midst of civil war, the Court of Cassation considered, in its judgment of September 7, 2021, that it suffices that “accomplice in crimes against humanity” (a natural or legal person) “has knowledge that the principal perpetrators are committing or will commit such a crime against humanity and that by his aid or assistance, he facilitates the preparation or the consummation thereof”. Exit, therefore, the notion of intention. Butat the Paris Court of Appeal, which examined Thursday the validity of the indictment of the French cement manufacturer for this count, will it have the same analysis? The court will deliver its decision on May 18.
While the cases of Lafarge and TotalEnergies are very different, some lawyers specializing in international law and human rights consider that the French oil company is taking legal risks by continuing to trade with Russia. “We are in a context of conflict where all voices agree to say that the Russian state is in the process of perpetrating war crimes. Any support, even economic, could be apprehended as complicity because behind the faculty of a regime to invade a country, there are financial capacities”points out Clémence Bectarte, lawyer who represents the International Federation for Human Rights (FIDH) and the French coalition at the ICC.
“The issue of corporate responsibility in international conflicts is evolving at breakneck speed at the legal and judicial level.”
Clémence Bectarte, FIDH lawyerat franceinfo
And the lawyer cites several lawsuits launched against companies in recent times: the BNP, targeted by a judicial investigation for “complicity in crimes against humanity, genocide and acts of torture and barbarism” in Sudan; the textile groups Uniqlo, Zara, Sandro and Skechers at the heart of a preliminary investigation for “concealment of crimes against humanity”, in connection with suspicions of forced labor suffered by members of the Uyghur Muslim community in China; companies Amesys and Nexa technologies, indicted for “complicity in torture” for having sold listening systems to track opponents of the regimes of Muammar Gaddafi in Libya and Abdel Fattah Al-Sissi in Egypt.
“The situation has changedsupports the penalist William Bourdon on France inter. This is what these large groups have not understood and do not want to understand.” “Increased accountability is taking shape and no one can claim ignorance or a form of blindness that is only legitimized through the protection of financial interests,binds his colleague Vincent Brengarth to franceinfo. We cannot imagine that there are no benefits drawn by the Russian regime from the presence of Total on its territory”, he adds. Asked by franceinfo, the TotalEnergies group declined to comment. Last January, the group ended up leaving Burma under pressure human rights NGOs, one year after the military coup and subsequent repression.