The victims, represented by the Association Canadienne Contre l’Impunité (ACCI), were applying for leave to appeal a decision of the Canadian Court of Appeal, which had ruled that they could not sue Anvil Mining, a Canadian-Australian company, in the Canadian Courts. On 1 November 2012, the Supreme Court in Ottawa dismissed the victims’ application.
These rulings dealt purely with the question of whether Canada was an appropriate forum to hear the case for damages against Anvil. At no stage were the facts of the 2004 incidents litigated before the Canadian courts.
Anvil had operated a silver and copper mine 50km from the Congolese town of Kilwa. They are alleged to have been complicit in atrocities said to have been committed by the Congolese Armed Forces (FARDC) in October 2004.
ACCI’s case is that FARDC soldiers committed murder, torture, rape and looting in the operation to re-take Kilwa, which had been temporarily occupied be a small group of rebel soldiers. According to a UN report, more than 70 people were murdered in the FARDC attack. ACCI allege that Anvil provided logistical support to the FARDC in the form of vehicles, company drivers, flights, food and money.
After sustained international pressure, in October 2006 a Congolese military prosecutor investigated the allegations. Nine FARDC personnel and three of Anvil Mining’s employees were indicted on charges of commission of and complicity in war crimes respectively. After a stop-start trial before a military tribunal, the verdict announced in June 2007 ruled that no war crimes had been committed in Kilwa. All accused were acquitted of the October 2004 attack, although there were two convictions for murder relating to an incident in January 2005. The victims’ claims, as parties civiles, were all rejected, the tribunal holding that any deaths had in effect been the result of legitimate military action against a rebel uprising, even though the evidence overwhelmingly pointed to the commission of serious crimes by the FARDC.
On appeal to the superior military tribunal, the only change to the original verdict was to reduce the sentence on the two soldiers convicted for the January 2005 murders from life to five years. The appeals from the 144 victims were rejected summarily.
Both the trial and appeal process were roundly criticised as unfair, subject to political interference and biased. The United Nations High Commissioner for Human Rights expressed grave misgivings about the whole legal process.
Unable to secure justice within their own country, the victims of the Kilwa massacre attempted to pursue their claim for compensation in Australia, where Anvil Mining was registered. A class action was launched in 2007, but from the outset there were real difficulties in gathering information from victims within the DRC. It is alleged that victims received death threats from the authorities. The case collapsed when the Australian lawyers representing the victims withdrew and no replacement could be found.
In parallel, the Australian Federal Police conducted an investigation into whether Anvil Mining was criminally complicit for the crimes committed by the FARDC. However, the investigation was dropped and no charges were ever brought.
The only remaining option for the victims appeared to be to bring a case in Canada, where Anvil had offices. ACCI scored a notable victory when at first instance it won the right to bring the class action against Anvil Mining. Sitting in the Superior Court of Québec, Judge Benoît Emery decided that the case was properly brought in Montréal. But the optimism was short-lived, the Court of Appeal overturning Emery’s judgment and holding that the victims had not proved that Québec was a suitable forum for their case.
The Court of Appeal’s reasoning does not establish any general principle against extra-territorial jurisdiction, and does not close the door to future class actions brought by victims of war crimes in appropriate cases. The reason the Congolese victims’ claim failed against Anvil was because it could not be proved that there was a ‘real and substantial link’ between the events in the DRC in October 2004 and Anvil’s satellite office in Montréal – which incidentally did not open until June 2005. Anvil’s office in Montréal consisted of only two people: one who maintained links with shareholders and investors, and a part-time secretary. At no point did the Court of Appeal consider that the Montréal office had anything to do with the management of the mine in the DRC, and there was no direct or indirect connection between what happened in Kilwa and Montréal.
The second issue raised before the Court of Appeal was whether, even if Québec did not have jurisdiction, it could exceptionally assume jurisdiction based on the ‘demonstrated impossibility of obtaining access to a tribunal abroad in a case that has a sufficient connection to Quebec.’ Such impossibility appears to refer to procedural rather than evidential impossibility.
The Court of Appeal held that the ACCI had failed to prove why it was impossible to institute proceedings in the DRC and Australia. Somewhat unconvincingly, the Court of Appeal reasoned that the ACCI’s reliance on the reports of international organisations (including the United Nations) was insufficient to prove that the victims could not have obtained access to the Congolese Supreme Military Tribunal. However, the Court of Appeal held that the ACCI had also failed to show that the situation that existed in Australia regarding lack of collaboration with DRC authorities would be any different were the claim to be brought in Québec. In any event, the ACCI had failed to establish that the case had a sufficient connection to Québec.
Although of no consolation to the victims of the Kilwa massacre, the court’s examination of this case showed how lawyers advising claimants might prepare their cases differently in the future.
Firstly, consolidate victims’ claims: coordinated group action is more powerful than disparate multiple claimants. The Congolese victims were doubtless only able to carry their fight for so long because of the support of the ACCI and the coordinated legal and media strategy.
Secondly, establish that all possible judicial remedies in the country of commission have been exhausted, even if the political situation in the country means that such efforts would be futile – unless of course there is credible evidence of serious threats to the claimants were they to pursue their legal rights.
Thirdly, ensure that every aspect of the domestic case has been documented, and where possible any allegations of bias or political interference are independently verified. United Nations reports, and those by other respected organisations such as Amnesty or Human Rights Watch, should be sought.
Fourthly, choose the most suitable foreign jurisdiction. Realistically, courts will not entertain actions where there is nothing more than a post box office: the aim is to establish how the foreign enterprise could have had knowledge and control over the criminal events complained of.
The media coverage generated by this case, and others like it, is also bound to have an impact upon how companies do business. Established companies are unwilling to expose themselves to unnecessary reputational risk: and being implicated in such serious human rights abuses as happened in Kilwa would be a public relations disaster for any organisation.
The more frequently these cases are reported, the more likely companies’ CSR departments will take their human rights due diligence obligations seriously. There are still enormous opportunities for business in the developing world, even in regions of conflict and insecurity, but there is a growing realisation that cases such as the Kilwa massacre will not be swept under the carpet. The claimants are getting closer