Institute for Human Rights and Development and Others v Democratic Republic of Congo, Communication 393/10
The African Commission on Human and Peoples’ Rights issued a landmark compensation amount and wide-ranging community reparations to victims of brutal state repression of civilian activities that impacted a mining company’s interests. It found the Congolese government had violated numerous human rights, and the case also progressed corporate accountability, as the Commission publicly rebuked the Anvil Mining Company for providing support to the state military action and recommended prosecution for involved employees.
In 2004, a small number of lightly armed rebels tried to take control of Kilwa, a remote fishing town in the Democratic Republic of Congo (Congo). About 50 km away from Kilwa there is a copper and silver mine, where Anvil Mining Company (Anvil Mining), a small Australian-Canadian mining company, had mining operations. Notably, the port in Kilwa was the only transport link to export the mine ore to processing plants in other countries. In response to the unrest in Kilwa, the Congolese army was brutal; soldiers indiscriminately bombed and pillaged the town, and arbitrarily detained, tortured and summarily executed civilians. Over 70 civilians were killed, while others died more slowly from wounds sustained through torture. Following investigations, the UN asserted the Congolese army had perpetrated war crimes. The UN also found that Anvil Mining had provided extensive logistical support to the military action in Kilwa, including the provision of transport, fuel, food and perhaps even payments for a number of the soldiers.
In the aftermath of the atrocities, domestic proceedings were brought against the involved Congolese soldiers and Anvil employees, but without success. The UN High Commissioner for Human Rights expressed concern about political interference in the domestic judicial process. Judicial proceedings were also brought against Anvil employees in Canada and Australia where Anvil Mining has offices but to no avail. Finally, a complaint on behalf of eight victims was brought before the African Commission on Human and Peoples’ Rights (Commission) by human rights groups.
In June 2016, following a lengthy seven-year process, the Commission held that the Congolese government had violated a range of human rights under the African Charter on Human and Peoples’ Rights including the rights to life (Article 4), fair trial (Article 7), property (Article 14) and economic, social and cultural development (Article 22), as well as the prohibition against torture (Article 5), the protection from arbitrary arrest (Article 6), and the duty to guarantee the independence of the courts (Article 26). It further stated that the state was in breach of the right to housing.
The Commission publicly rebuked Anvil Mining and emphasized “the need and legal imperative for entities engaged in extractive industries to undertake their activities with due regard to the rights of host communities...This includes the non-participation or non-support in the perpetration of violations of human and peoples' rights.” (unofficial translation from French).
The Commission requested the government to take diligent steps to prosecute and punish both state agents and Anvil Mining employees involved in the violations. It awarded the victims named in the complaint US $2.5 million and urged the government to identify and compensate other victims and their families, not party to the complaint. The Commission also recommended, among other proposed measures, that the state formally apologize to the people of Kilwa, exhume and bury with dignity the bodies cast into mass graves, construct a memorial, rebuild schools, hospital and roads destroyed during the attack, and provide trauma counselling for those affected.
The Commission directed the state to ensure that the implementation of the decision is supervised by a Monitoring Committee including representatives of victims and a member of the Commission in charge of the country. It further requested the government to report back within 180 days on steps taken towards implementing the decision.
The Congolese government has so far not engaged with enforcing this decision. There is no record of the government having sent any communication within the 180 day deadline to inform the Commission on actions taken towards implementation. The aforementioned monitoring committee has also not been established yet. NGOs continue to urge the government to act. [Email interview with Anneke Van Woudenberg, Executive Director, Rights and Accountability in Development (RAID), 26 March 2018] While the Commission’s recommendations are not formally binding, state parties are expected to comply with decisions and there is political pressure to do so. In a significant development, in December 2017, the Chairperson of the Commission’s Working Group on Extractive Industries, Environment and Human Rights sent a letter to Anvil Mining, encouraging the company to acknowledge responsibility for breaching its duty of care through a public statement and contribute to the reparations that the Commission awarded the Kilwa victims.
Three ESCR-Net members were actively involved in bringing the case before the Commission: Rights and Accountability in Development (RAID); Action Contre l’Inpunite pour les Droits de l’homme (ACIDH) and the Institute for Human Rights & Development in Africa (IHRDA).
Across the world, communities continue to confront widespread and systemic corporate human rights abuses, with companies often escaping accountability. The practice of using or supporting public security services to act in company interests against local communities, and the act of judicial interference, are two of the recognized characteristics of the wider phenomenon of ‘corporate capture’ – the means by which large corporations and other economically powerful stakeholders undermine the realization of human rights and environmental wellbeing by exerting undue influence over states. This case represents a key step towards advancing corporate accountability for such abuses, as the state was explicitly directed to take action against Anvil Mining officials. Further, the recommended remedies included the highest compensation amount ever awarded by the Commission, and comprehensive, innovative, structural and restorative collective measures directed to both the victims and the wider community. The International Commission of Jurists has commented that the decision constitutes “…a real step towards the recognition of the responsibility of the DRC State and the company Anvil Mining…opportunities may now be open to victims and their families to seek remedy and reparation, including prosecution against responsible State authorities and the company Anvil Mining, or at least any responsible personnel or and executive officers.”
The violent attacks, and the ensuing 13-year legal battle for justice, is indicative of a continuing need to put in place a comprehensive international legal framework on corporate accountability, in order to clarify state obligations (including extraterritorial) in the regulation of corporate activities and remove barriers to justice. Towards this end, ESCR-Net members and allies are working collectively to advocate for a strong UN treaty to prevent and remedy human rights abuses by or associated with the actions of transnational corporations and other companies. Further, corporate capture practices are being analyzed and addressed through ESCR-Net’s Corporate Capture Project.