MAC: Mines and Communities

Swiss Gold Refiner Accused Of Abetting Congo War

Published by MAC on 2013-11-22
Source: New York Times, Forbes, All Africa (2013-11-14)

"... Corporate pillage of natural resources has gone largely unaddressed in the modern era, even though, particularly since the end of the Cold War, the illegal exploitation of such resources has financed atrocities throughout the world."

Punish Companies That Pillage

By James G. Steward

New York times

14 November 2013

Vancouver, British Columbia - Pillage is a war crime. And yet, when it comes to natural resources, companies doing business in war zones have largely been free to plunder with impunity - until now.

This month, Swiss authorities opened an investigation against one of the world's leading gold refiners, Argor-Heraeus, for pillaging gold from the Democratic Republic of Congo. In the middle of the last decade, according to a criminal complaint filed by Trial (Track Impunity Always), a legal advocacy group based in Geneva, the company refined three tons of gold that had been bought by companies based in Britain and the Channel Islands. The companies had acquired the gold from a Ugandan company, which had bought the gold from Congolese rebels, according to the complaint.

The word "pillage" evokes campaigns of barbarity centuries ago, but legally speaking, it just means theft during war. During World War II, many businesses pillaged natural resources from occupied Europe to feed Hitler's war machine. Some individuals, like the German businessman Paul Pleiger, faced justice. A United States military tribunal at Nuremberg convicted him of plunder - in his case, the illegal mining of vast stores of coal from occupied Poland - and sentenced him to 15 years in prison.

But since that era, there has been a deafening and puzzling silence.

Prosecutors often charge soldiers and politicians with pillaging property like art, cash, television and vehicles. The International Criminal Court in The Hague has charged Omar al-Bashir, the president of Sudan, and Jean-Pierre Bemba, a former vice president of Congo, with pillaging. (They also face more serious charges of crimes against humanity: murder, rape and torture.)

Yet corporate pillage of natural resources has gone largely unaddressed in the modern era, even though, particularly since the end of the Cold War, the illegal exploitation of such resources has financed atrocities throughout the world. "Blood diamonds" financed wars in Angola and Sierra Leone, illicit timber contributed to bloodshed in Liberia, and coltan destined for Western cellphones, laptops and game consoles fueled violence in Congo. Organizations like Global Witness have documented these illicit resource flows for years, naming and shaming Western companies.

In all these resource-fueled wars, civilians pay dearly. The number of war casualties in Congo is staggering - more than 5 million since 1998 - as is the high rate of sexual violence.

Trying perpetrators of rape, torture, murder and other crimes against humanity is essential. But we also must confront the war crimes committed by corporations that provide the means and motivations for mass violence.

In 2003, a United Nations panel on the plundering of Congo's gems and minerals named approximately 125 companies and individuals that had contributed, directly or indirectly, to the conflict there. Soon after, the Security Council called on states to "conduct their own investigations" through "judicial means" - a call, in effect, for prosecutions. But no country responded directly to this call. Political impediments certainly contributed to the inaction, but so did legal uncertainty about how to go about these prosecutions. Many nations shrugged and asked, "Prosecute them with what?"

In 2007, I left the office of the prosecutor at the International Criminal Tribunal for the former Yugoslavia to write a practical guide on the law of pillage, as applied to natural resources. The Swiss prosecutor's decision to investigate the crime is momentous.

The pillage allegations are directed at the corporation as a legal entity. Companies cannot be locked up, of course, but they can be stigmatized (or even shuttered) by a criminal conviction. They can also incur major fines and other penalties.

Other nations can, and should, follow the Swiss example. In the United States, for example, the War Crimes Act of 1996 declared pillage a federal crime. Federal prosecutors should examine ways to use this potentially powerful tool.

In addition to reducing the flow of money to brutal armed groups operating in resource-driven wars, these prosecutions would help deflect recent criticisms by some African leaders, like President Paul Kagame of Rwanda, who have called the I.C.C. a new form of imperialism because of its emphasis, thus far, on Africa. Prosecuting corporations, not just warlords, would prove him wrong.

The novelist Joseph Conrad once described the colonial pillage of Congolese natural resources as "the vilest scramble for loot that ever disfigured the history of human conscience." In the past, Western states were complicit with this injustice. If the Argor-Heraeus case signals the beginning of the end for corporate impunity in war zones, it will be none too soon.

James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, is the author of "Corporate War Crimes: Prosecuting Pillage of Natural Resources."


Swiss Gold Refiner Accused Of Abetting Congo War Via Money Laundering

Forbes

4 November 2013

The war in the Democratic Republic of the Congo has been a terrible ordeal, costing an estimated 6 million lives since 1997. Part of what funded the long conflict was gold mined illegally in the resource-rich Congo. So far the parties that have been sanctioned by the United Nations for illegal mining and exploitation of the gold have all been African.

Now the net has widened. The Swiss nonprofit TRIAL announced Monday that it was targeting a Swiss gold refinery part owned by Commerzbank and the Austrian mint for refining gold from the Congo. TRIAL said it filed a criminal complaint against gold refiner Argor-Heraeus SA, accusing the firm of refining 3 tons of gold ore pillaged from the Democratic Republic of the Congo between 2004 and 2005. TRIAL suspects Argor-Heraeus "of being guilty of the crime of laundering the proceeds of a major crime ... and handling goods pillaged during an armed conflict," it said in a statement.

According to TRIAL, Argor-Heraeus knew, or at the least should have assumed, that these raw materials were the proceeds of pillage, which is a war crime. TRIAL is petitioning the Swiss criminal authorities to determine if Argor-Heraeus did indeed commit criminal acts.

The criminal complaint comes after nearly a decade of investigation. In 2004, the United Nations Security Council convened a group of experts to investigate illegal exploitation of natural resources in the Congo. The UN-appointed team, including a U.S. investigator named Kathi Lynn Austin, documented the role of several organizations and individuals involved in the pillage and smuggling of gold from the northeast region of the Democratic Republic of the Congo, including the UK company Hussar Services Limited, the Jersey (Channel Islands) company Hussar Limited, and the Swiss refiner Argor-Heraeus SA.

The UN team was able to show how gold mined in northeastern Congo was shipped to Uganda and then Switzerland to be processed into ingots so its origins would be concealed. TRIAL argues that Argor-Heraeus should have known the gold was pillaged from the Congo.

Argor-Heraeus denied the accusations in a statement released Monday. The refiner asserts that it was cleared of money laundering allegations by an investigation performed by the United Nations, the Swiss State Secretariat for Economic Affairs and the Swiss Financial Market Supervisory Authority.

The Swiss nonprofit TRIAL received significant help with its investigation from two U.S. parties. Following her work at the UN group, Austin garnered the support of the Open Society Justice Initiative (a nonprofit funded by billionaire investor George Soros) and continued to investigate Hussar Limited and Argor-Heraeus. Austin and the Open Society Justice Institute worked with TRIAL to collect documentation that led to filing the criminal complaint.

Now it is in the hands of the Swiss prosecutors to decide whether to pursue criminal money laundering charges against Argor-Heraeus. The refiner is owned partly by German company Heraeus, 26.5% by Commerzbank Int. of Luxembourg, and 24.3% by the Austrian Mint of Vienna.


Congo-Kinshasa: Swiss Firm Suspected of Complicity in DRC War Crimes

All Africa

5 November 2013

Arusha - Swiss federal authorities have launched an investigation into Swiss company Argor-Heraeus for suspected complicity in war crimes, in connection with the laundering of three tons of gold pillaged in the Democratic Republic of Congo (DRC) in 2004, Swiss newspaper Tribune de Genève reported Tuesday.

This comes after Swiss NGO Track Impunity Always (TRIAL) filed a complaint against the company to the Swiss authorities. "We have examined this complaint and we have decided to open a criminal investigation into the company for suspected money laundering linked to a war crime and complicity in a war crime," the newspaper quotes a federal government spokesperson as saying. Argor-Heraeus has denied the allegations.

TRIAL's complaint is based notably on 2004-2005 investigations into the DRC-sourced gold supply chain by a UN Group of Experts, under a mandate to monitor the arms embargo on the country. All the African businesses and businessmen implicated were severely sanctioned by the UN Security Council, while Western businesses and businessmen were not, despite the Experts' recommendations, TRIAL notes. According to TRIAL, the FNI armed group in northern DRC continued to exploit a gold concession it seized to finance its operations and buy arms, despite the UN arms embargo.

A large part of this gold was sold to intermediaries who in turn sold it to precious metals refiner Argor-Heraeus. "Argor-Heraeus SA could not have been unaware of the criminal origin of the gold," says TRIAL. The company has strongly rejected the allegations, saying the 2005 UN investigation cleared its name and concluded it was not implicated either directly or indirectly in this affair.

Acts of pillage committed during armed conflict may constitute war crimes. Ordering or encouraging such pillage in any way is also a crime under international criminal law. Thus pillage was one of the war crimes for which the Special Court for Sierra Leone (SCSL) this year convicted former Liberian president Charles Taylor and sentenced him to 50 years in jail. Taylor was found guilty of aiding and abetting rebels in Sierra Leone, who pillaged natural resources, among their numerous other crimes.

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