Crushed by an Anvil: a case study on responsibility for human rights in the extractive sector.

• Author: McBeth, Adam

In October 2004, Congolese troops conducted violent reprisals for a minor uprising in the small town of Kilwa, engaging in summary executions, rape, torture, pillaging, and other human rights atrocities. Allegations that a multinational corporation, Anvil Mining, provided logistical assistance for the military's actions led to calls for the company and its employees to face legal responsibility. This article examines the deployment of the multitude of legal and quasi-legal accountability mechanisms available in the Anvil case, including civil and criminal avenues in the home and host states, the application of international criminal law and the use of international "soft law" mechanisms. In examining the way those avenues were used in the Anvil case, this article attempts to illustrate the practical relationship between the multiple avenues theoretically available for imposing human rights accountability on multinational corporations, including a consideration of non-legal factors affecting decisions on whether and how to assert jurisdiction within a given avenue. It concludes that the incoherence of a fragmented, ad hoc system, and the central importance of political will in invoking a given avenue, present serious problems for the effective enforcement of human rights responsibility for multinational corporations.

1. INTRODUCTION

   This is a story of mass killings, summary executions, rape, torture and pillaging. It is a story about the relationship between foreign investors and repressive regimes. Most of all, it is the story of the gaps that emerge in legal accountability when there are many jurisdictions that can exercise control over a case, but just as many excuses for authorities to defer to someone else. This article takes one episode of human rights atrocities in the Democratic Republic of the Congo, in which a multinational mining company, Anvil Mining, allegedly provided assistance, and uses that episode as a case study to examine how these different jurisdictional options are deployed in practice.

   In any study of the human rights responsibility of multinational enterprises, examples from the extractive sector of both human rights abuses and attempts at regulation and oversight will abound, due to the convergence of a number of factors. The substantial infrastructure and exploration investments required for oil, gas, and mining ventures often mean that exploitation of resources in developing countries cannot proceed without the involvement of foreign enterprises. For many developing countries, the extractive operations conducted by multinational firms are a vital source of revenue, giving the local authorities a vested interest in protecting those operations, whether from protesters, pilferers, uncooperative landholders or insurgents. Many extractive operations are conducted in conflict zones or areas of political instability, given that the option of moving to a more stable operating environment is simply not available when the targeted resources remain firmly in the ground. Situations of conflict can in fact be exacerbated by the presence of lucrative extractive industries, as competing factions strive to control rents from the operation to fund their own struggles. (1)

   Multinational extractive enterprises can and do make a positive contribution to human rights, particularly through the provision of employment and livelihood for local communities, with all the associated benefits for economic and social rights that such prosperity brings. Extractive industries also sometimes contribute to human rights through the provision of infrastructure and other social programs in the local community. (2) However, involvement in human rights abuses is also well documented. This can include direct human rights violations by the corporations concerned. Perhaps the most common form of serious human rights violation in the course of multinational extractive industries, however, is the use of violence, including killing, rape, forced labor, forced evictions, and torture, at the hands of security forces, at the behest of, for the benefit of, or with the assistance of the extractive enterprise.

   When it comes to accountability for such human rights violations, the situation is complicated by a web of jurisdictional claims, which can be sticky, fragile, and full of holes. The host state--that is, the state where the operation is located and where the human rights violation occurs--will normally have the strongest claim to jurisdiction. However, in developing countries that are either still immersed in or have recently emerged from conflict or instability, the legal processes and resources for investigation, trial, and enforcement in relation to alleged human rights abuses are often seriously lacking. Even if the processes and resources exist, there are serious questions about the impartiality and fairness of those processes in some countries, given the vested interest of the government in the extractive operation. Where the direct perpetrators are military or police, acting under government directives, there is even more reason to doubt the legitimacy of host state processes.

   Beyond host state jurisdiction, one alternative is to look to the home state of the multinational enterprise. In certain circumstances, states have the capacity to hold their nationals, including both natural and juridical persons under some formulations, accountable for their conduct abroad. It might also be possible for the victims to seek redress through a civil suit in the enterprise's home state.

   International law is yet another option. International criminal law might be invoked for human rights violations rising to the level of international crimes. International human rights law also has a role in defining the boundaries of human rights obligations, but must be used in conjunction with some other legal avenue if it is to be effective in achieving justice for victims, as international human rights law has no enforcement mechanism of its own in relation to the actions of non-state actors.

   Non-binding "soft law" mechanisms could also be used. There is a growing collection of international regimes setting out guidelines for transnational commerce, including in relation to human rights responsibility, some of which include dispute resolution or complaint mechanisms.

   It is important to note at the outset that there is no agreed hierarchy or order of proceeding that covers the deployment of each of these overlapping accountability mechanisms. As this case study demonstrates, the reluctance of various authorities to invoke their respective jurisdiction, for whatever reason, is a very real practical problem for victims seeking recourse. This article seeks to demonstrate that while the law--both municipal and international, civil and criminal, hard and soft--provides numerous recourse options, the political will to invoke those options and the manner in which they are invoked are every bit as significant for the achievement of justice as the adequacy of the law itself.

   Part II sets out the background for the case study. It begins with an introduction to the operations of Anvil Mining in the Democratic Republic of the Congo and lays out the events of what has come to be known, somewhat euphemistically, as the "Kilwa incident." Part III then characterizes the alleged atrocities at Kilwa against international criminal law and international human rights law, laying the foundations for the following discussion about the legal avenues that have sought to invoke those and other laws.

   The remaining parts of the article then examine the fora that have been invoked, or which might be invoked in the future, in pursuing accountability in this case. Part IV examines criminal proceedings that took place in the military courts of the Democratic Republic of the Congo and analyzes the implications of those trials for other proceedings. Part V then looks at proposed criminal and civil proceedings against Anvil in Australia, while Part VI considers the prospects of proceedings in other municipal jurisdictions. Part VII then turns from municipal law to international law, discussing the prospects of proceeding in the International Criminal Court, while Part VIII moves to the dimension of "soft law," examining two non-legal accountability mechanisms that were invoked in this case.

2. ANVIL IN THE CONGO

   Anvil Mining is a multinational enterprise, the parent company of which is incorporated in Canada, with the enterprise's head office in Australia and mining operations in the Democratic Republic of the Congo and Zambia, as well as interests in mining operations in several other countries. (3) Anvil is the largest copper producer in the Congo, although a relatively small player among multinational mining enterprises, recording an annual operational profit of U.S. $107 million in 2006. (4)

   The events discussed in this article relate to Anvil's operations at the Dikulushi copper and silver mine near Kilwa in the province of Katanga in the southeast of the Democratic Republic of the Congo, which commenced operation in October 2002.

   The Dikulushi mine is operated by a company called Anvil Mining Congo SARL, incorporated in the Democratic Republic of the Congo. Ninety percent of that company is owned by Anvil Mining Holdings Limited, incorporated in the United Kingdom, and the other ten percent by two trusts, the beneficiaries of which are the local communities affected by the Dikulushi mine. Both trustee companies and the U.K. company are wholly owned subsidiaries of Anvil Mining Management NL, incorporated in Australia. The Australian company is in turn a wholly owned subsidiary of Anvil Mining Limited, incorporated in Canada. (5)

   The part of the Anvil enterprise involved in operating the Dikulushi mine thus consists of six separate companies, each one a separate legal person, incorporated in four different jurisdictions.

   1. The Kilwa Incident

      On October 14...