I. BNP Paribas in the Sudan
From 1989 until 2019, the Sudan was under the leadership of Omar al-Bashir. During this period, the Sudanese government engaged in a number of violent campaigns against civilian populations, including in Darfur in the early 2000s, as well as in South Kordofan and Blue Nile in relation to an internal conflict that erupted in 2011. The Sudanese government’s armed conflict with rebel groups resulted in widespread human rights abuses, and was characterized by unjustified attacks against civilians that bore the markings of ethnic cleansing: minority communities were targeted by government forces and State-sponsored militia groups, including via violent raids by janjaweed militias and indiscriminate bombing campaigns. Overall, the actions of the government resulted in the deaths of countless innocent civilians, severe injuries and the depopulation of entire towns, as well as the arbitrary detention and torture of those who spoke out against the government.
Despite the Sudan’s dismal human rights track record under al-Bashir’s leadership, in 2002 the French bank BNP Paribas, mainly through its Swiss subsidiary, began doing business with the Sudanese government, including processing US dollar transactions, providing letters of credit, and holding about 50% of the Sudan’s foreign currency assets. These dealings were in violation of US sanctions that were put in place in response to the Sudan’s ongoing human rights abuses, and arguably undermined the intended effect of the sanctions, including to deter the Sudan from continuing to engage in such violations. In order to circumvent US sanction penalties, the bank set up an elaborate system involving external satellite banks and a policy to refrain from mentioning the Sudan in its documents in order to avoid leaving a paper trail of its illicit behavior.
Based on the significant role it played in the Sudanese banking infrastructure between 2002 and 2008, BNP Paribas essentially operated as the primary bank for the Sudan and has admitted to processing billions of dollars on behalf of the Sudanese government. Furthermore, by connecting the Sudan to the international market, BNP Paribas facilitated the export of petrol and access to foreign money markets, which allowed the country to significantly increase its foreign revenue. Between 2001 and 2008, which includes the time during which BNP Paribas provided banking services to the Sudan, the government’s spending on arms purchases jumped by over 2300%, and included the import of military aircraft, missiles, and small arms and light weapons. The Sudanese government’s arms import rates reached a peak in 2003, and much of these new investments went toward building up its military forces in order to attack its own citizens in the Darfur, South Kordofan, and Blue Nile regions. Some of the more expensive purchases, such as military aircraft that have been used to wage bombing campaigns on civilians in South Kordofan and Blue Nile, would have arguably not been within the State’s budget if it had actually been shut out from the international market as the sanctions intended.
Throughout this period, BNP Paribas was not ignorant to the humanitarian situation. The bank has admitted under oath to being aware not only of the Sudan’s ongoing human rights abuses, but also of the bank’s role in supporting such violations. For example, in March 2007 a senior BNP Paribas executive stated in a memorandum that: “In a context where the International Community puts pressure to bring an end to the dramatic situation in Darfur, no one would understand why BNP Paribas persists [in Sudan,] which could be interpreted as supporting the leaders in place.”
II. French Criminal Complaint
BNP Paribas’s banking activities in the Sudan are now at the center of a criminal complaint filed in French courts, which argues, inter alia, that by providing the Sudan with access to international markets and financial services, BNP Paribas was complicit in violations committed by the Sudanese government, including human rights violations amounting to international crimes such as torture, crimes against humanity, and genocide.
The initial complaint, which was filed on 26 September 2019 by nine victims of rights abuses with the support of several NGOs, including the International Federation for Human Rights and Project Expedite Justice,[1] alleges that BNP Paribas is complicit in the Sudan’s crimes. The allegations are based on the impact that the bank’s activities had on the Sudan’s ability to commit and even increase widespread human rights abuses, as well as the degree of knowledge that top executives had about how the bank’s activities supported the Sudanese government’s crimes, including by providing them with a way to garner revenue and purchase weapons in the international market.
III. French Complicity Law
The French Penal Code provides for complicity liability, including for aiding or assisting the commission of a crime and instigating a crime. Generally, an act of assistance must be a positive act that is knowingly provided and that furnishes the means to commit or assists the primary perpetrator in the commission of a crime.
The French Penal Code states that a person is complicit if he knowingly facilitates the preparation or commission of a crime, meaning that he should know of the criminal nature of the primary offense and that his conduct may further it. In addition, the person must have the intent to commit the actus reus of aiding or assisting.
Indeed, in the Papon case, the French Supreme Court in 1997 considered that the question of the defendant’s complicity in crimes against humanity turned on the degree of his knowledge. Although there was no evidence to suggest that Maurice Papon, a civil servant in charge of several police prefectures, shared the ideological convictions of the Nazi regime, he was convicted of complicity in crimes against humanity based on his involvement in Nazi crimes of deportation, including by keeping lists of Jewish people in his prefecture, organizing roundups, and procuring transportation for deportees. The court concluded that by accepting his assignment even though he knew of what happened to Jews who were deported from France under the Vichy government, he met the required mental state necessary for complicity. Ultimately, Papon’s intent to assist in the Final Solution was never established and the discussion focused primarily on the degree of his knowledge.
Based in Papon, the mens rea standard for complicity appears to require knowledge of the underlying crimes, but not a shared intent with the primary perpetrators. However, in 2019, the Paris Court of Appeals dismissed charges against cement company Lafarge for complicity in crimes against humanity committed by ISIS and other terrorist organizations in Syria and Iraq. Lafarge was accused of aiding and assisting ISIS crimes by allegedly purchasing raw materials from and selling cement to ISIS, as well as issuing a total of approximately €13 million to armed groups for checkpoint fees and other bribes. Despite allegations that Lafarge provided material support through financing, and possessed knowledge of the risks, the court dismissed the complicity charges, because the elements were not met.
Arguably, had the Papon standard been applied in Lafarge, the court would have concluded that, based on the cement company’s alleged knowledge of the ongoing crimes and how its financial support to ISIS would assist them in their continued perpetration, the complicity charge should stand trial. Instead, it found that Lafarge’s financing of ISIS, despite its alleged knowledge of ISIS’s criminal behavior and the likelihood that the money would be used for the commission of crimes against humanity, would not be enough, thereby suggesting that something higher—a desire to contribute to the result and thus a shared intent with the primary perpetrator—was necessary.
The court’s ruling suggests that the court considered Lafarge’s knowledge to be insufficient. Although neither the language of the French Criminal Code nor common interpretation of Papon support a finding that a standard higher than knowledge should be applied, the foremost international body for adjudicating crimes against humanity, the International Criminal Court, does apply a higher standard. Article 25(3)(c) of the Rome Statute requires that an aider or abettor act “for the purpose of facilitating the commission of a crime,” however this standard has been widely criticized, is not generally regarded as customary international law, and is not followed by most domestic jurisdictions. If the Lafarge court indeed required a level of culpable intent beyond a voluntary act of participation with the knowledge that it will further crimes, and instead demanded that the defendant had the will to contribute to the realization of the principal offense, then its decision would be a significant departure from the preceding interpretations of French law. This case is now pending appeal before the French Supreme Court.
Although French statutes and case law do not define criminal intent, it is generally understood as encompassing both knowledge (la conscience) that the act is prohibited, and a deliberate willingness or desire (la volonté) to commit the wrongful act. (Larissa van den Herik and Carsten Stahn (eds), The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff, 2012), p. 523). Intent is divided into two forms—dol général and dol special, the latter being required only for certain offenses. In dol général, la volonté is understood as the desire to commit the wrongful act, but not necessarily the desire to accomplish the result of the act in question. (van den Herik and Stahn, p. 524). In addition to dol général and dol special, French law also recognizes another form of intent, dol indirect, in which “[t]he agent knows that his voluntary act will cause (certainly or almost certainly) a consequence that is not truly desired.” (van den Herik and Stahn, p. 524). Finally, French law recognizes the notion of dol éventuel, in which the defendant foresees but does not desire the result; this, however, is not considered a form of intent under French law. (Elies van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, 2012), p. 41).
No matter which level of a mental state you apply—dol direct, dol indirect, or dol éventuel, the French law of complicity does not support the notion that the accomplice must share the intent of the primary perpetrator. The question now remains whether an accomplice’s knowledge of the primary perpetrator’s criminal conduct, coupled with an understanding of how his aid or assistance would facilitate it, would be enough. Under a dol éventuel standard, the answer would be an easy yes, based on foreseeability. Even when dol indirect is applied, the situation in Lafarge would most likely meet this standard, as ISIS’s past and ongoing mass atrocity crimes were widely known and any financial contribution to the group would certainly go toward furthering them.
As for applying a dol direct standard, here the importance of the application of complicity as a mode of liability comes into sharp focus. The wrongful act of being complicit in a crime is an act of assistance, and the accompanying mental state should relate to that actus reus, and not to the act of another person. While the primary perpetrator must have an intent to commit an act that results in the commission of a crime against humanity, an accomplice should be evaluated by his intent to commit an act which results in the facilitation of that crime against humanity. To require otherwise is to conflate intent and motive. To illustrate, even though Papon did not seek the Final Solution himself and instead acted out of “opportunistic career self-interest,” he intended to perform the acts that he knew would assist the commission of crimes against humanity. Similarly, although Lafarge arguably did not have the intent to commit crimes against humanity itself, it allegedly did have the intent to pay bribes and trade with ISIS; the fact that it was perhaps motivated by profit instead of the desire to persecute, torture, and kill does not negate the fact that it acted with intention in performing its wrongful act of providing assistance to a crime.
The Lafarge court acknowledges that intent to facilitate a crime can be inferred, yet it refuses to recognize that financial support and knowledge that the money will be used to commit crimes demonstrate the intent to assist. As will be discussed in the section below, the tendency of courts to consider assistance through financing as somehow different and less influential on the commission of primary crimes than other forms of assistance, such as providing instruction or auxiliary support, underestimates the inherent power of money and money services in facilitating the commission of international crimes.
IV. Complicity through Financing
A. Furnishing Assistance through Money
Can BNP Paribas’s conduct, including the provision of money services that allowed the Sudan to access international markets and increase its revenue, as well as investments in oil projects connected to violent crack-downs against civilians by State security forces, constitute complicity with the government of the Sudan in its attacks against civilians?
Although it is not the main focus of this blog, it is important to recognize that the provision of money and financial services is a form of assistance. BNP Paribas’s main involvement was through financial services involving fungible money that is difficult to pin down or track to a specific expenditure, and thus a causal link between the bank’s assistance and crimes against humanity may be challenging to define. That being said, in the context of BNP Paribas’s dealings in the Sudan, the sheer proportion of money that the bank was handling on behalf of the State suggests that it is virtually impossible for at least some of the money that was handled by the bank not to have gone toward the purchase of weapons and support of armed groups involved in crimes against civilians. This inference is further supported by the dramatic increase in the rate of weapons purchases after BNP Paribas began doing business in the Sudan, and suggests that BNP Paribas’s dealings contributed to the Sudan’s resources and ability to access international markets.
Furthermore, BNP Paribas acted as a shield of legitimacy, which allowed the Sudan to enter the international marketplace. Without its strategic and elaborate banking services, which were provided in violation of US and international sanctions and designed to avoid detection of these violations, the Sudan would have had difficulty selling its natural resources or buying foreign goods and weapons. The bank’s concerted actions, including setting up a system to circumvent the US sanction regime, were instrumental in the Sudan’s ability to procure the tools necessary for its mass human rights violations during this time. Thus, not only did the bank’s services constitute an act of assistance for international crimes, it is arguable that without its provision of banking services, the Sudan would not have had access to the aircraft and weapons that it used in its brutal campaigns against civilians.
B. Dol Direct, Dol Indirect or Dol Éventuel?
The degree of BNP Paribas’s knowledge of the ongoing human rights abuses (some amounting to international crimes) by the Sudanese government is well-documented. Considering that the bank willfully disregarded the risk of crimes against humanity being perpetrated as a result of its involvement—in favor of its own gains and profits—it is easy to conclude that BNP Paribas acted wrongfully. But was the bank complicit under French law?
In the context of financing international crimes and serious human rights violations, an overly strict interpretation of the mens rea standard—in which the secondary actor must share the intent of the primary perpetrator—means that egregious business conduct that undeniably facilitates and, in some cases, even represents the condicio sine qua non of international crimes, continues to be carried out in impunity. In cases such as BNP Paribas, requiring the prosecutor to demonstrate that the bank shared the intent of al-Bashir’s murderous regime might present a considerable burden. Furthermore, the results of such a legal rule would fly in the face of justice, as the facts in BNP Paribas illuminate. Without the bank’s services (which in and of themselves were a violation of sanctions and thus unlawful), the Sudan arguably would not have been able to commit crimes to the extent that it did. Moreover, the bank possessed actual knowledge of the regime’s past criminal conduct, as well as the likelihood that their services would provide al-Bashir with the means to intensify his attacks against civilians. Yet it chose to prioritize profits over the risk to human lives. Moreover, the mens rea of BNP Paribas arguably meets or even supersedes the standard set by Papon and under French law, as the bank acted with the aim of facilitating the offense when it provided financial services; it desired that its client have access to banking services and the ability to buy and sell goods internationally despite existing sanctions, which were put into place because of the real risks of more mass atrocity crimes occurring. What was wrongful about its conduct (in addition to the sanction violations) is that it knew that the Sudan had a history and ongoing practice of waging attacks on its civilians and that access to international markets would mean that it would be able to purchase the tools that would increase these attacks, but it did not care.
V. Conclusion
Even as secondary actors, powerful financial institutions and businesses are some of the most responsible contributors to international crimes and serious human rights violations, especially when the wrongdoing would not have occurred—or would have occurred to a much lesser degree—were it not for their facilitation.
Thus, when assistance is provided in the form of money, its fungible nature should not necessarily stand in the way finding a causal connection between the financing and the ultimate crime. Money has the ability to act as a causal agent for terrible harm, and the inability to trace each dollar from its source to the end should not stand in the way of recognizing it as the powerful force that it is.
When evaluating the requisite mental element, the fact that businesses benefit from the effects of conflict should not be ignored, even if companies do not actually intend for human rights violations to occur. Although businesses often tout the moto, “human rights are good for business”, thereby suggesting that human rights violations are bad for business, their willingness to continue to engage and even seek opportunities where oppression and the commission of international crimes occur demonstrates otherwise. Thus, when banks and business pursue the opportunity to profit, regardless of the human cost, they should be held to account. A requirement of shared intent with the primary perpetrator would thwart this effort, and is contradictory to the notion that their callous prioritization of profit over human lives is wrongful and actually contributes to harm. While other avenues for prosecution exist, such as under terrorist financing statutes or sanctions regimes, these are not always available in all situations in which money facilitates the commission of mass atrocities, and thus complicity law should be understood in a way that recognizes money as assistance.
[1] The author of this blog has acted as legal consultant to Project Expedite Justice, although not on its case against BNP Paribas.
