Conflict gold case against Swiss refiner droppedPublished by MAC on 2015-06-03
Source: Statements, Mining.com (2015-06-02)
Previous article on MAC: Swiss Gold Refiner Accused Of Abetting Congo War
Swiss decision to close Argor case encourages “head in the sand” attitude
Joint News Release
2 June 2015
Geneva - The Office of the Attorney General of Switzerland (OAGS) decided not to further prosecute the Swiss precious metals company Argor-Heraeus SA, that handled dirty African gold. While Swiss authorities acknowledged that Argor did refine looted gold and violated its duty of diligence, the case was nonetheless closed, a decision met with disbelief by the three NGOs working on the case. Together with Conflict Awareness Project (CAP), the Open Society Justice Initiative (OSJI) supported a legal complaint filed in November, 2013 by TRIAL (Track Impunity Always), in which the Swiss NGO accused Argor of illegally processing over three tones of pillaged gold from the Democratic Republic of Congo. According to the NGOs, this decision undermines international efforts to eliminate the illegal resource trade that fuels conflicts around the world.
On 10 March 2015, the Office of the Attorney General of Switzerland (OAGS) closed the Argor case and concluded that there was no reason to believe that the company had been aware of the criminal origin of the three tons of gold pillaged from the DRC that it had refined. TRIAL, OSJI and CAP find this outcome hard to believe. According to the decision:
- The company did indeed refine three tons of dirty gold pillaged by Congolese rebels;
- Numerous reports linking the armed conflict in the DRC and the Congolese origin of dirty gold had been published at the time of the events;
- The refining of such gold was a key element of the war effort in eastern DRC;
- Violation of an anti-laundering regulation can lead to a criminal conviction;
- The company violated a regulation it had itself adopted in order to meet the requirements of the Law on Laundering and the Law on the Control of Precious Metals. In fact, indications of the origin of the gold "…should have raised Argor’s suspicions. (…) It failed to clarify the origin of the gold although its internal regulations required it to do so if there were any doubts as to the origin of the raw material for refining (…)."
Despite these overwhelming findings, the OAGS decided to close the case 16 months after opening a criminal inquiry. It felt that the company should not be held responsible as "it is not clear (…) that the defendants had any doubts as to, or concealed any evidence of, the criminal origin of the gold."
First and foremost, the OAGS’s stance raises questions over Switzerland’s role in the processing of and trade in precious metals. The NGOs still expect to know how several tons of dirty gold coming from one of the bloodiest and publicised conflicts of our time can reach Switzerland and be refined there without any consequences.
The NGOs also noted the grave message the closure of the case sends: "This decision gives free rein to companies who violate their duty of diligence and prefer to remain ignorant of the criminal origin of raw materials. It means that they can simply turn a blind eye to indications suggesting the criminal origin of raw materials in order to avoid prosecution."
The NGOs finally recall that there can be no justice without accountability for the private sector: "When companies fuel some of the most violent conflicts in the world, any failure on the part of the authorities to sanction them only ends up encouraging them to pursue their harmful activities."
The Argor case in 8 questions
1. WHO IS ARGOR-HERAEUS?
Argor-Heraeus SA is one of the five largest precious metal refining companies in the world. The company is particularly active in the refining and sale of gold. Its headquarters are in Mendrisio (Ticino, Switzerland).
2. WHAT IS IT BEING ACCUSED OF?
Argor-Heraeus is accused of having refined several tons of dirty gold between 2004 and 2005, taken from mines in eastern Democratic Republic of the Congo (DRC) and pillaged by armed groups controlling the region at that time. In the complaint filed in November 2013, the NGOs stated that they believed the company knew of the origin of the raw material (see www.stop-pillage.org). They therefore considered that these acts could form complicity in pillaging, which is a war crime, along with aggravated laundering.
According to the complaint, Argor-Heraeus knew, or at the least should have suspected, that these raw materials, provided by Hussar Ltd and Hussar Services Ltd, interlinked companies based respectively in Jersey and London, were the proceeds of pillage, which is a war crime. Argor knew that Hussar had obtained the gold from a Ugandan trading company which itself had imported the gold “from the region.” At the time, virtually no gold was produced in Uganda and almost all gold exported from Uganda was smuggled from mines controlled by unlawful armed groups in neighboring DRC.
3. WHY HAS THE OFFICE OF THE ATTORNEY GENERAL OF SWITZERLAND (OAGS) CLOSED THE CASE AFTER A 16-MONTH INVESTIGATION?
The OAGS decided that the evidence in its possession was insufficient to conclude that Argor-Heraeus was aware of the illegal origin of the gold.
4. WHAT ARE THE MAIN ARGUMENTS IN THIS LEGAL DECISION AND WHAT DO THE NGOS THINK ABOUT THIS?
The OAGS confirmed that the gold refined by Argor-Heraeus had indeed come from a rebel armed group in the DRC and that the act of refining it had been crucial to the group’s war effort.
* The NGOs welcomed this conclusion, which was in line with the evidence they provided to support their claims.
In the decision, the OAGS noted that the refining was an objective act of complicity in pillaging but that evidence of Argor’s knowledge of the illegal origin of the gold was lacking, thus shielding the company from any form of sanction.
* The NGOs find this a regrettable conclusion as there was an abundance of public information in this regard (articles and reports from the mass media, the UN and NGOs). This conclusion could end up encouraging companies active in the precious metals sector not to ascertain the origin of the raw material they receive in order to guard against any possible prosecution.
Noting that, according to case law, a regulatory violation could lead to a criminal conviction for laundering by omission, the OAGS finally ruled that the company was in breach of its own regulation, adopted in accordance with the Law on Laundering (LBA) and the Law on the Control of Precious Metals (LCMP). The OAGS that stated that, in the presence of "concrete indications (…) that should have raised Argor’s suspicions, (…) [it] failed to clarify the origin of the gold although its internal regulations required it to do so." However, the OAGS decided that this violation should not result in the company’s conviction because "it was not clear (…) that the defendants had any doubts as to, or had concealed any indication of, the criminal origin of the gold."
* The NGOs believe that this reasoning could have harmful consequences: it could result in refining companies preferring not to seek further information if there are any doubts as to the illegality of the raw materials being processed. It simply encourages them to bury their heads in the sand.
5. WHY HAS AN APPEAL NOT BEEN MADE AGAINST THIS DECISION?
Under Swiss law, NGOs do not have the right to act as plaintiff in proceedings. They are therefore only able report activities that they consider to be in violation of Swiss law. Even when a decision is passed on a case that has been reported by them, they cannot appeal against it. In this case, the victim of the pillaging was formally the DRC since the mineral resources that were pillaged belonged to this country. The DRC did not, however, appear as a plaintiff.
6. WHAT WERE THE MAIN STAGES IN THE CASE?
Between 2004 and 2012, in collaboration with the Open Society Justice Initiative, Kathi Lynn Austin investigated the dirty gold coming from the DRC and sent her findings and evidence to TRIAL.
TRIAL then undertook a further year’s investigative and legal analytical work before filing a criminal complaint with the Federal Prosecutor’s Office on 30 October 2013.
On 10 March 2015, the OAGS decided to archive the case, subsequently making this decision public.
* For more information on the precise details of the proceedings, see www.stop-pillage.org.
7. WHICH NGOS HAVE BEEN ACTIVE IN THIS CASE AND WHAT HAS BEEN THEIR ROLE?
The complaint Argor was based upon nine years of investigative work carried out by Kathi Lynn Austin (Director of CAP), supported by the OSIJ. The Justice Initiative has also supported TRIAL’s lawyers in developing the international legal arguments around the case. The results of these investigations have been shared with Jersey Channel Islands and UK law enforcement authorities.
TRIAL (Track Impunity Always) is a Swiss NGO fighting the impunity enjoyed by those responsible for and complicit in the most serious international crimes.
Open Society Justice Initiative is a program of the Open Society Foundations that uses law to protect and empower people around the world. Its work includes combating natural resource–related corruption.
Conflict Awareness Project is an international not-for-profit organisation that investigates, documents and brings to justice those principally responsible for arms trafficking and the transnational criminal operations that are fuelling these conflicts.
8. WHAT NEXT FOR THE NGOS THAT ARE FIGHTING PILLAGING AND LAUNDERING?
These three NGOs are currently working on a number of cases that could be brought to trial in different countries. These cases remain confidential for the moment.
Chloé BITTON I TRIAL Communications Director
T: +41 79 192 37 44 I E: media[at]trial-ch.org
Conflict gold case against Swiss refiner dropped
2 June 2015
Swiss authorities were met with harsh criticism on Tuesday after the country's attorney general's office dismissed a "conflict gold" case against a major refiner after citing insufficient evidence.
Argor-Heraeus faced charges of laundering and "complicity in war crimes and pillage" after it refined three tonnes of gold in 2004–2005 from an armed group called the National Integrationist Front or FNI. Argor-Heraus said it did not know that the gold was from the FNI.
The Uganda-backed group took control of a mineral-rich area in the northeastern Ituri region of the DRC in 2003. Activists who filed the criminal case against Argor-Heraus told AFP.com that "Argor should have known, or at least suspected, that the precious metal did not come from gold-poor Uganda":
He [TRIAL director Philip Grant] pointed out that South Africa's Rand Refinery, which initially refined the gold, had stopped working with Hussar [an intermediary] after becoming suspicious of the origin of the metal.
Argor's decision to take over allowed FNI to more easily bring the pillaged gold to market to finance their brutal operations, Grant said, charging the company helped "fuel the conflict".
The European Union last month approved stricter regulations dealing with metals and minerals from conflict zones, while the US already has disclosure rules regarding the origin of imports in place.
Swiss gold refinery’s role in pillaged gold goes unpunished
Berne Declaration (BD) press release
2 June 2015
Lausanne - The Swiss Federal Prosecutor’s Office (FPO) has decided to terminate criminal proceedings opened in October 2013 against the Swiss refinery, Argor-Heraeus SA, denounced by the NGO, TRIAL, for having refined dirty gold originating from the Democratic Republic of Congo. Nevertheless, the FPO did acknowledge the problematic origin of the gold. This incomprehensible impunity illustrates the need to require Swiss companies to ascertain the origin of the products in which they trade.
In its March decree, the FPO found that Argor had indeed refined close to three tons of gold pillaged by Congolese rebels between 2004 and 2005 and that it had violated its internal rules. The prosecutor nevertheless found that the company had not committed a crime because it had not had any doubts about the provenance of the gold. But can it be that one of the world’s principal refineries was really that naïve? Uganda, from where the gold in question was supposed to have come, produces hardly any of the yellow metal, and the country was even well reputed at the time to be serving as a point of transit for pillaged gold from the DRC by armed groups. The UN and NGOs widely denounced the key role played by this trade in the financing of militias, whose acts of violence have made millions of victims.
The impunity enjoyed by Argor is an official invitation to refineries and other companies subject to the Anti-Money Laundering Act to ignore information that could lead them to discover problematic issues or to behave as if they had no such information. It is also a further proof of the insufficiency of voluntary measures to prevent the introduction onto the legitimate market of “dirty” commodities – those that are Illegally or illegitimately acquired. In the gold sector, both the Federal authorities and companies are happy to point to the strict nature of the internal rules on which companies rely, claiming that they are often more effective than the restrictive regulation proposed by NGOs. The Argor case however underlines the limitations of these codes of conduct: as strict as they may appear on paper, their application remains relative and must always struggle against the company’s need to turn a profit, a force which often dictates its choices. But above all, violations of these internal rules do not attract sanctions. Whether in the gold sector or elsewhere.
In order to protect Switzerland’s integrity and reputation, it is necessary to pass a law requiring companies to know the origin of the products in which they trade, and to ensure that these have note been acquired or produced in violation of human rights or environmental standards. This is precisely the demand made by the Responsible Business Initiative, launched by 66 Swiss organizations, including the Berne Declaration. Companies should not be allowed take advantage of their ignorance to enter into shady deals with complete impunity!
More information here, or please contact: Olivier Longchamp, Berne Declaration, +41 21 620 03 09, longchamp[at]ladb.ch