Summary
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.
