Anvil mining and the Kilwa massacre

Seven years ago, Congolese soldiers attacked Kilwa – looting, murdering and raping their way through the remote town in central Katanga. At the end of the raid, over 70 people had been killed and many more raped and injured by the troops. It was a barbaric attack – one of many in the eastern parts of the Democratic Republic of Congo (DRC) in the last decade.

March 7th, 2012

Seven years ago, Congolese soldiers attacked Kilwa – looting, murdering and raping their way through the remote town in central Katanga. At the end of the raid, over 70 people had been killed and many more raped and injured by the troops. It was a barbaric attack – one of many in the eastern parts of the Democratic Republic of Congo (DRC) in the last decade. But what made the Kilwa incident different was the allegation that Anvil Mining – an Australian-Canadian company operating a large silver and copper mine nearby – had provided the soldiers with logistical support.And what also made this shocking story different was that the victims of the attack – once the Congolese legal system had failed them – decided to seek justice internationally by launching a class action case against Anvil Mining in Canada. Supported by human rights organisations from Africa and beyond, the victims sought permission to fight the matter in Quebec and in April 2011, Superior Court Judge Benoît Emery issued a landmark ruling that the case could go ahead – giving the victims hope that they might finally see justice being done.The attack itself took place in October 2004 when units of the Congolese Armed Forces (FARDC) moved in to regain control of Kilwa, which was briefly in the hands of a rebel band. After first shelling the town, the Congolese soldiers ran amok, indulging in executions, torture, rape and looting. An investigation by the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) concluded that over 70 people were killed and highlighted a string of other grave crimes and human rights violations. What the MONUC report also contained was a potentially explosive admission from Anvil – whose Dikulushi mine was only 50kms away from Kilwa and which transported copper and silver concentrates from the town by barge on a daily basis – that it had provided logistical support to the FARDC in the form of vehicles, company drivers, flights, food and money.However, the military justice system followed its usual course and took no action. Only in July 2005, following a documentary about the massacre on Australian TV, did international pressure increase. And only in October 2006 did the Congolese military authorities finally agree to hand over seven of their personnel, who were charged with war crimes in line with Article 8 of the Rome Statute of the ICC, including Colonel Adémar Ilunga, who had commanded the counter-offensive in Kilwa. Three employees of Anvil – including two South African security managers – were also accused of complicity.The subsequent military tribunal acquitted five of the seven military personnel. Colonel Ilunga and another soldier were convicted of the torture and murder of two students from the garrison town of Pweto and sentenced to life imprisonment, although their sentences were later reduced to just five years’ imprisonment. The court ruled inter alia that the majority of those who had died in Kilwa had been members of a rebel group and had been killed in clashes with Congolese troops. The court did not accept that the military had carried out extrajudicial executions or that some of the victims had been buried in unmarked graves in the village of Nsensele – ruling that the site indicated by numerous witnesses and UN human rights investigators was a cemetery and not a mass grave.As for the prosecution’s case against Anvil Mining and its employees, it focused on their failure to demand the return of the company’s vehicles once it had become apparent that they were being used in the commission of serious crimes and human rights violations. But the tribunal sided with the company – ruling that Anvil Mining’s vehicles and logistical support had been requisitioned, acquitting the three employees who were on trial for lack of sufficient evidence and finding that the initial charges against Anvil Mining Congo were unfounded.However, the trial was marked throughout by numerous procedural deficiencies and irregularities. The court did not hear crucial evidence from key individuals and some prosecution witnesses did not attend the mobile court hearings in Kilwa for fear of reprisals. These issues led Louise Arbour, the UN High Commissioner for Human Rights, to issue a statement expressing her disquiet about the verdict of the tribunal, in which she said, “I am concerned at the court’s conclusions that the events in Kilwa were the accidental results of fighting, despite the presence at the trial of substantial eye-witness testimony and material evidence pointing to the commission of serious and deliberate human rights violations.”According to the 2010 UN Mapping Report, ‘The Kilwa case demonstrates the difficulty in proving the legal responsibility of private companies in the perpetration of serious human rights abuses and violations of international humanitarian law’. But it also shows that there are ways of holding companies to account – by taking action internationally.Anvil is incorporated in Canada’s Northwest Territories, listed on the Toronto Stock Exchange and has offices in Canada, Australia, South Africa and the DRC. Realising that the Congolese system would never provide any justice for them, an association of citizens from the DRC took the fight beyond Congo’s borders and filed a petition in November 2010 for certification of a class action case in Montreal against Anvil for the company's alleged role in the Kilwa massacre.The plaintiff in the case – the Canadian Association against Impunity – is made up of families of the victims and other Congolese citizens affected by the Kilwa attack. Diverse organisations, including Rights and Accountability in Development, two Congolese non-governmental organisations (Action contre l’impunité pour les droits humains and the Association Africaine de defense des droits de l’Homme), Global Witness, the  Canadian Centre for International Justice and  L’Entraide missionaire are board members of the association.In April 2011, Superior Court Judge Benoît Emery rejected Anvil’s arguments and ruled that the case was properly bought in Québec and that neither the DRC nor Australia were better fora for the matter. Anvil appealed that judgement and at the end of January 2012, the Appeal Court found in favour of the company, ruling that the case could not be heard in Quebec. However, the plaintiff has already decided to continue the fight and ask Canada’s Supreme Court to hear the case.There have been very few human rights cases against corporations in Canada. In 1997, a group of indigenous Guyanese initiated a suit in the Superior Court of Quebec following an environmental disaster at the Omai gold mine. They sued for negligence in Quebec, where the mine’s majority owner, Cambior, was incorporated. This was the first suit brought by non-nationals before a Canadian court concerning the overseas operations of a Canadian mining company but the court dismissed the case, declining to exercise jurisdiction. The decision cast a decided chill over litigation in Canada concerning overseas mining. Many potential plaintiffs were discouraged by the precedent and by the adverse costs awarded. So, given the precedent-setting nature of the Anvil case, the Supreme Court’s decision will be eagerly awaited.But another obstacle is looming for the plaintiffs. Anvil’s directors are trying to sell the company’s Congolese assets. In September 2011, Anvil announced that it had received a US$1.3 billion takeover offer from a Chinese company, Minmetals Resources. The takeover has been delayed pending the consent of Anvil’s joint venture partner, the state-owned Gecamines.The plaintiffs might still lose but their long search for justice means that the brutal attack on their town will not be forgotten. Without their courage and determination to see justice done, the murder of so many innocent men, women and children in Kilwa would have joined the long list of similar crimes that remain unresolved in the DRC – and largely unrecognised by the Congolese State. After seven years, there is still no end in sight but the case has shown that mining companies are no longer untouchable – and that international criminal law can give victims the chance to seek redress beyond their own borders if their domestic legal institutions are unable to unwilling to act.By Patricia Feeney, Executive Director of Rights and Accountability in Development - 

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