The African Commission on Human and Peoples’ Rights has urged Anvil Mining Company to pay compensation of victims of a massacre in the Democratic Republic of Congo. The Commission considers that Anvil Mining has been complicit in the events.
Anvil Mining Company has offices in Canada and Australia. Its main area of business is copper mining in Congo. In 2004, a small group took control of the city of Kilwa in Eastern Congo. The group was initially comprised of some ten members. They carried only light weapons and claimed to be member of a rebel group whose name had hitherto been unknown. Anvil was running a copper mine near the city of Kilwa.
The Congolese army (FARDC) launched an attack on the city in a bid to regain control. During the attack, the 62. Brigade of the Congolese army used excessive force. 73 people lost their lives, more than 20 of them by summary executions. Arbitrary detentions took place and houses and shops were looted.
Eye witnesses stated that vehicles of Anvil mining had transported soldiers to Kilwa. The company later on confirmed this, inter alia in the course of an investigation of the incident by the UN-Mission in the Democratic of Congo (MONUC). Witness also claimed that vehicles of the company had been used to transport bodies and looted goods away from Kilwa. Anvil Mining denied these allegations.
The prosecution indicted several persons for human rights violations in Kilwa, among them were several soldiers and three employees of Anvil Mining. A military court acquitted the company’s employees (and several other persons).
Relatives of victims of the massacre filed criminal complaints in Australia. Australian police instigated an investigation but discontinued it following the acquittal of the company’s employees by the Congolese military court. In 2010, a Canadian NGO supported relatives of victims in initiating a civil action in Canada, where Anvil had offices. However, the Supreme Court of Canada ultimately ruled that Canadian courts had no jurisdiction in the case.
In the same year, relatives of victims submitted a complaint to the African Commission on Human and Peoples’ Rights. The African Commission decided on that complaint in August 2017. It held that the Democratic Republic of Congo had violated its obligation to secure human rights on its territory. In the decision, the African Commission also dealt with the role Anvil Mining had played in the incident.
The Commission was unable to render a decision which was directly binding on the company, since the African Commission’s purview is to control the observance of the African Charter on Human and Peoples’ Rights and of other international human rights treaties. International treaties on human rights are concluded by state parties and only impose obligations on states. Consequently, the African Commission has only jurisdiction to rule on states’ actions or omissions. The Commission decided that the Democratic Republic of Congo had to pay compensation to victims and their families.
At the same time, the Commission made it clear that it attributes responsibility to Anvil Mining, too. It issued a letter urging Anvil Mining to contribute to payments to victims and announced to inform the public about any reaction on the part of Anvil Mining.
The case highlights some problems of international human rights protection. On the one hand, it sheds light on the role of transnational corporations. They are often directly responsible for human rights violations or complicit in infringements of human rights committed by governments. Yet there are insufficient legal instruments to hold the accountable. According to the current understanding of international human rights law, human rights are legally binding only on states (an interpretation which comes increasingly under attack). International human rights courts therefore have no jurisdiction over actions of corporations.
Courts in the states in which the corporations are domiciled frequently deem that they have no jurisdiction on actions committed abroad (in particular when a subsidiary of the company acted). And courts in the countries in which the violations occured are often not truly independent or corrupted.
In addition to that, the case points to another problem of human rights protection in Africa: It took the African Commission seven years to deliver a decision – although the government of DRC did not participate in the proceedings and although the Commission did not conduct an oral hearing. Effective human rights protection requires that proceedings are concluded within effectively and that victims’ rights are upheld within reasonable time.