Judicial Body: the Office of the Attorney General of Switzerland

TRIAL and its partners Open Society Justice Initiative and Conflict Awareness Project welcome the decision of the Swiss Federal Prosecutor to open a criminal investigation into the activities of the Swiss refinery company Argor-Heraeus SA for laundering of looted gold and complicity in war crimes.

This decision follows the filing of a denunciation against the Swiss company, by the NGO TRIAL (Track Impunity Always) on 1 November 2013. The Swiss association against impunity along with Open Society Justice Initiative and Conflict Awareness Project welcomes the opening of the criminal investigation by the Swiss Federal Prosecutor.

” The opening of the investigation is a strong signal to corporations fueling war. Countries at war are not law-free zones and impunity is no longer ensured to those who break the law. The private sector can also be held accountable “, said Philip Grant, Director of TRIAL.

” The Conflict Awareness Project is pleased that the Swiss Prosecutor is investigating Argor for criminal charges. For far too long, Argor has claimed that it was exonerated by the United Nations for its criminal involvement in the pillage of gold from Congo, which is not the case. The forensic evidence leaves no doubt that Argor was refining gold supplied by unlawful armed groups in the DRC “, said Kathi Lynn Austin, Executive Director of the Conflict Awareness Project.

” The Swiss Federal Prosecutor’s decision appears to be the first effort to hold corporate actors accountable for pillage and related offenses since the Second World War. This case goes far beyond Switzerland to the international commodity and financial markets. Companies who choose to trade directly or indirectly with unlawful armed groups must understand that they risk prosecution for the war crime of pillage “, said Kenneth Hurwitz, Senior Legal Adviser at Open Society Justice Initiative.

The three NGOs now await the result of the investigation with trust and great interest.

WWW.STOP-PILLAGE.ORG

 

TRIAL (Track Impunity Always) has submitted to the Swiss Federal Prosecutor a criminal denunciation against the precious metals refinery Argor-Heraeus SA. The Swiss anti-impunity NGO holds information suggesting that the company may have laundered pillaged gold. The investigation and the evidence gathered indicate that between 2004 and 2005, Argor-Heraeus SA may have refined almost 3 tons of gold that had been pillaged in the Democratic Republic of the Congo (DRC) by an unlawful armed group that financed its operations by trafficking in gold. According to TRIAL, the refinery knew or should have assumed that the gold resulted from pillage, a war crime. TRIAL therefore requests law enforcement authorities to open an investigation and to establish whether an offense has been committed, and if so, to sanction the company.

On 1 November 2013, TRIAL filed a complaint (dénonciation pénale) to the Swiss Federal Prosecutor supported by extensive evidence against the Swiss precious metals refinery Argor-Heraeus SA. The Swiss anti-impunity NGO suspects that the refinery may have committed « aggravated laundering » (under article 305bis of the Swiss Penal Code) when it allegedly refined pillaged gold from the DRC, the sale of which contributed to financing the operations of an unlawful armed group in a brutal conflict.

The complaint follows investigations into the DRC-sourced gold supply chain that were conducted in the years 2004-2005 by the United Nations Group of Experts on the Democratic Republic of the Congo, pursuant to its mandate to monitor the arms embargo on the country. All of the African businesses and businessmen implicated in this affair were severely sanctioned by the UN Security Council, while Western businesses and businessmen were not, notwithstanding recommendations from the Group of Experts that all participants in the illegal supply chain be sanctioned.

For Philip Grant, Director of TRIAL : « It is unacceptable that pillaged raw materials that are feeding violence in a brutal and horrific war should be refined and prepared for marketing in Switzerland, with total impunity. These practices run contrary to law, but without a clear signal from law enforcement authorities, they will continue. This complaint should serve as a reminder that corporations are subject to the law and must also be held accountable. »

In light of the evidence obtained up to 2012 by Kathi Lynn Austin – former investigator in the UN Group of Experts – TRIAL believes that Argor-Heraeus SA could not have been unaware of the criminal origin of the gold.

Accordingly, in refining almost 3 tons of gold pillaged from the DRC in less than a year, Argor Heraeus SA may have committed aggravated money laundering. « Even if Argor-Heraeus SA was able at the time to escape UN sanctions under the embargo, that does not mean that it did not violate Swiss law », said Bénédict De Moerloose, TRIAL’s lawyer in charge of the case.

Bénédict De Moerloose added : « For a long time we have been investigating the activities of Argor-Heraeus SA during the years 2004-2005, with regard to Swiss law, in particular, money laundering. Today, thanks to newly obtained evidence, our suspicions are sufficiently well grounded for us to refer the matter to the international criminal law department of the Federal Prosecutor’s office. It is now for them to determine if Argor-Heraeus SA should be criminally prosecuted for the alleged conduct. »

 

The Stop-Pillage Campaign

Supported by the joint forces of three NGOs dedicated to the struggle against impunity – TRIAL, Conflict Awareness Project (the NGO started by Kathi Lynn Austin), and the Open Society Justice Initiative – a broader campaign started in parallel of the filing of the complaint.

The Stop-Pillage Campaign seeks to raise public awareness in Switzerland and abroad regarding the impact of the pillaging of raw materials, its link to armed conflict, and the responsibility of all actors in the supply chain. The NGOs call for a judicial response to this problem targeting every link in the chain, no matter in which country.

 

www.stop-pillage.org 

 

Case Summary

The Front des Nationalistes et Intégrationnistes (FNI) is an unlawful armed group that began operating in 2002 in northeastern DRC, seizing control of the city of Mongbwalu (Ituri) and of a gold concession named « Concession 40 ».

In violation of the embargo imposed by the UN Security Council in 2003, the FNI exploited this concession to finance its operations and buy arms. The FNI is widely accused of massacres, systematic violence against the civilian population of Ituri, sexual violence, pillage, and recruiting child soldiers.

With the collaboration and air transport provided by a local businessman, Dr. Kisoni Kambale, a large portion of the gold was sold in Uganda to a company called Ugandan Commercial Impex Ltd. (UCI).

This company resold the gold, in turn, to a buyer named Hussar Limited, a Jersey, Channel Islands company, and its London affiliate, Hussar Services Limited, which asked the Swiss company Argor-Heraeus SA to refine the gold, in the period between July 2004 and June 2005. The refined gold ingots were then sold to banking institutions.

 

Context

The Democratic Republic of the Congo is a territory rich in widely coveted natural resources (gold, coltan, tungsten, diamonds, precious woods). The struggle for control of this natural wealth, together with regional tensions and ethnic conflicts, have led to devastating conflict in the Congo (with millions dead and hundreds of thousands displaced). Since 1994, the population of the Northeast of the country (North and South Kivu and Ituri) has suffered massive and continuing waves of crimes and grave human rights violations committed both by unlawful armed groups and by the Congolese national security forces. These regions have also been the locus of systematic pillage of natural resources by the armed groups in the region.

In 2008-2009, Mr Dias was the Major General of the 57th Division of the Sri Lankan army, tasked with attacking the Tamil Tigers during the final offensive against the rebel group. In this respect, he is alleged to have committed serious violations of the law of war. It is alleged that, from December 2008 to January 2009, the town of Kilinochchi was relentlessly shelled by his troops, destroying the entire infrastructure, including a hospital, and forcing tens of thousands of civilians into exile. It is also alleged that the 57th Division was involved in the bombardment of areas that had been defined as “no fire zones” and, therefore, supposedly safe zones for civilians, causing a veritable blood bath.

In September 2009, Jagath Dias was appointed Deputy-Ambassador of Sri Lanka to Switzerland, Germany and the Holy See. Based on a case put together by its partner ECCHR, TRIAL International and Société pour la protection des peuples menacés launched a campaign to get Mr Dias stripped of his diplomatic status. Faced with the passiveness of the authorities, in August 2011, the NGOs filed a criminal report against Jagath Dias before the Office of the Attorney General of Switzerland.

After this campaign, Mr Dias was dismissed in early September 2011. For the very first time, a diplomat had been fired on the grounds of suspected serious violations of human rights.

In dealing with the criminal complaint, the Office of the Attorney General of Switzerland decided to close the case. However, it stated that it would open an investigation into the important allegations of suspected war crimes against Mr Dias if he represented himself on Swiss territory. If that were to happen, it would be the first time for a judicial authority to acknowledge the commission of war crimes by the Sri Lankan army.

 

Geneva/Bern, 22nd September 2011

Following a criminal complaint brought by TRIAL (Swiss association against impunity) and the Society for threatened peoples (SPM) against the Sri Lankan Deputy Ambassador to Switzerland, Jagath Dias, for war crimes, the Swiss Federal Attorney General has decided that a criminal investigation will be launched if Mr. Dias were to come back on Swiss territory, because of “his personal involvement in the atrocities committed”.

RTEmagicC_dias_03.jpgOn 13 September, media reports already announced that Mr. Dias, former Deputy Ambassador for Sri Lanka in Germany, Switzerland and the Vatican, had been stripped of his diplomatic status because he was strongly suspected of having committed war crimes. During the last phase of the internal conflict in Sri Lanka he was the major general of the 57th Division of the Sri Lankan Army, which is accused of intensive shelling of civilians, hospitals and religious sites. In August 2011, TRIAL and the SPM filed a criminal complaint with the Federal Attorney General against Jagath Dias for war crimes based on the previous facts.

The above-mentioned organisations have just received a 5-page decision dating back to 16 September 2011 by which the Federal Attorney General decided not to open an investigation, on the ground that Mr. Dias was no longer present on Swiss territory. However, the Federal Attorney General pointed out that several episodes of the conflict “highlight Mr Dias’ personal involvement in the military operations undertaken and in the attrocities committed”. Accordingly, the federal judicial authority considers that “the existing suspicions against him are enough to justify the opening of a criminal investigation” in the event that Mr Dias comes back to Switzerland.

Acknowledging the suffering of victims

TRIAL and the SPM welcome the decision of the Federal Attorney General. According to Philip Grant, the director of TRIAL, “Sri Lanka still denies the extent of the crimes committed. As long as no impartial investigation is carried out in Sri Lanka, the authors of these crimes may be punished abroad”. Angela Mattli, head of campaigns at the SPM, says that “after this judicial decision, the time has now come for the politics to send a clear message to the sri-lankan government: impunity for war crimes is not an option any more”.

The aforementioned organisations now invite the Swiss authorities to put pressure on the Sri-Lankan government to conduct impartial investigations about the war crimes committed by the sri-lankan armed forces and the Tamil Tigers and to prosecute the authors of these crimes.

Context

From the end of 2008 until May 2009, the Sri-Lankan government launched its final offensive to take control of the last territories in the hands of the guerrilla of the Tamil Tigers. The peak of horror was reached during this period: according to UN sources approximately 40,000 civilians were slaughtered. As such, both parties to the conflict have been responsible for multiple serious violations of international law, which, to date, have not been impartially investigated, neither in Sri Lanka nor before an international tribunal.