Tag: pillage

Pillaged timber between Senegal and The Gambia: The criminal denunciation filed by TRIAL International leads to the opening of a criminal investigation in Switzerland

In June 2019, TRIAL International filed a criminal denunciation with the Office of the Attorney General of Switzerland (OAG), against Nicolae Bogdan Buzaianu, a Swiss businessman close to former Gambian president Yahya Jammeh. The organisation suspected him of pillage, a war crime under Swiss law.

Bois de rose

According to the detailed file submitted to the OAG by TRIAL International, the Westwood company presumably owned by this Swiss businessman along with former president Yahya Jammeh was involved in the illegal exploitation and the export of the precious and protected rosewood in Casamance from 2014 to 2017. For several decades, large areas of the region were in conflict and under the control of armed separatist groups, including the Mouvement des Forces démocratiques de Casamance (MFDC). Yet, the illegal exploitation of natural resources in conflict areas can be considered as an act of pillage, which is a war crime under international and Swiss law.

According to information gathered by TRIAL International, the OAG has formally opened a criminal investigation regarding the alleged illegal exploitation and export of rosewood between Senegal and The Gambia. The opening of the proceeding follows the above-mentioned criminal report filed with the OAG by TRIAL International in June 2019.  It should be specified that as of today, TRIAL International has no official information on the offense(s) and the person(s) – natural or legal – targeted by the criminal investigation.

This criminal investigation is the third one opened by the OAG following investigations and cases filed by TRIAL International against economic actors suspected of pillage. The two other criminal cases concern the illegal trade of minerals from Eastern Congo in the DRC and the plundering of Libyan fuel. For TRIAL International, these cases not only have the potential to lead to jurisprudence that would clarify the obligations under international humanitarian law of economic actors operating in conflict zones or occupied territories. They can also put an end to the widespread impunity of economic actors who destroy the environment and illegally exploit natural resources, thereby fueling the causes of conflicts.

To watch the report “Trafic de bois, les criminels de l’environnement”, broadcasted on Temps Présent, 16 June 2022 on the swiss television RTS:

Respect for international humanitarian law must prevail over the quest for profits!

According to information gathered by TRIAL International, the Office of the Attorney General of Switzerland (OAG) has formally opened criminal proceedings for the war crime of pillage in a case concerning the alleged plundering of Libyan fuel. The opening of these proceedings follows a criminal report filed with the OAG by TRIAL International in May 2020. Currently, TRIAL International has however no knowledge of the persons – natural or legal – targeted by the investigations nor of the criminal offence(s) being investigated.

After a year-long investigation, TRIAL International and Public Eye published a joint report in March 2020 concerning a case of alleged pillage of smuggled gasoil belonging to the National Oil Corporation, a Libyan state-owned company. The investigation alleged that the Swiss-based trading company had purchased the smuggled gasoil from Libya in 2014 and 2015, a time period which coincided with the Second Libyan Civil War. TRIAL International analysed the evidence gathered during the investigation and concluded that the Swiss trader may have been complicit in the war crime of pillage. The NGO therefore filed a criminal denunciation in May 2020.

The OAG will therefore have to determine whether the facts brought to its knowledge complied – or not – with the law. The initiation of proceedings in such a case is an important step forward in the pursuit of accountability for economic actors who are active in conflict zones. According to Philip Grant, Executive Director of TRIAL International, “the OAG sends a strong signal to all actors operating in conflict zones that their activities must respect international humanitarian law.” TRIAL International points out that the courts rarely deal with such cases. The NGO has also filed two other criminal denunciations against Swiss businessmen for acts of pillage possibly committed in two other contexts, the Democratic Republic of the Congo and The Gambia/Senegal, which are currently being processed by the OAG. For the organization, these cases have the potential to lead to jurisprudence that will clarify for all actors operating in conflict zones or in occupied territories their obligations under international humanitarian law and thus contribute to putting an end to practices that, all too often, directly fuel conflicts.

The Office of the Attorney General of Switzerland (OAGS) decided not to further prosecute the Swiss precious metals company Argor-Heraeus SA, that handled dirty African gold. While Swiss authorities acknowledged that Argor did refine looted gold and violated its duty of diligence, the case was nonetheless closed, a decision met with disbelief by the three NGOs working on the case. Together with Conflict Awareness Project (CAP), the Open Society Justice Initiative (OSJI) supported a legal complaint filed in November, 2013 by TRIAL (Track Impunity Always), in which the Swiss NGO accused Argor of illegally processing over three tones of pillaged gold from the Democratic Republic of Congo. According to the NGOs, this decision undermines international efforts to eliminate the illegal resource trade that fuels conflicts around the world.

On 10 March 2015, the Office of the Attorney General of Switzerland (OAGS) closed the Argor case and concluded that there was no reason to believe that the company had been aware of the criminal origin of the three tons of gold pillaged from the DRC that it had refined. TRIAL, OSJI and CAP find this outcome hard to believe. According to the decision:

  • The company did indeed refine three tons of dirty gold pillaged by Congolese rebels;
  • numerous reports linking the armed conflict in the DRC and the Congolese origin of dirty gold had been published at the time of the events;
  • The refining of such gold was a key element of the war effort in eastern DRC;
  • Violation of an anti-laundering regulation can lead to a criminal conviction;
  • The company violated a regulation it had itself adopted in order to meet the requirements of the Law on Laundering and the Law on the Control of Precious Metals. In fact, indications of the origin of the gold “…should have raised Argor’s suspicions. (…) It failed to clarify the origin of the gold although its internal regulations required it to do so if there were any doubts as to the origin of the raw material for refining (…).”
  • Despite these overwhelming findings, the OAGS decided to close the case 16 months after opening a criminal inquiry. It felt that the company should not be held responsible as “it is not clear (…) that the defendants had any doubts as to, or concealed any evidence of, the criminal origin of the gold.”

First and foremost, the OAGS’s stance raises questions over Switzerland’s role in the processing of and trade in precious metals. The NGOs still expect to know how several tons of dirty gold coming from one of the bloodiest and publicised conflicts of our time can reach Switzerland and be refined there without any consequences.

The NGOs also noted the grave message the closure of the case sends: “This decision gives free rein to companies who violate their duty of diligence and prefer to remain ignorant of the criminal origin of raw materials. It means that they can simply turn a blind eye to indications suggesting the criminal origin of raw materials in order to avoid prosecution.”

The NGOs finally recall that there can be no justice without accountability for the private sector: “When companies fuel some of the most violent conflicts in the world, any failure on the part of the authorities to sanction them only ends up encouraging them to pursue their harmful activities.”

 

The Argor case in 8 questions

1. WHO IS ARGOR-HERAEUS? 

Argor-Heraeus SA is one of the five largest precious metal refining companies in the world. The company is particularly active in the refining and sale of gold. Its headquarters are in Mendrisio (Ticino, Switzerland).

 

2. WHAT IS IT BEING ACCUSED OF?

Argor-Heraeus is accused of having refined several tons of dirty gold between 2004 and 2005, taken from mines in eastern Democratic Republic of the Congo (DRC) and pillaged by armed groups controlling the region at that time. In the complaint filed in November 2013, the NGOs stated that they believed the company knew of the origin of the raw material (see www.stoppillage.org). They therefore considered that these acts could form complicity in pillaging, which is a war crime, along with aggravated laundering.

According to the complaint, Argor-Heraeus knew, or at the least should have suspected, that these raw materials, provided by Hussar Ltd and Hussar Services Ltd, interlinked companies based respectively in Jersey and London, were the proceeds of pillage, which is a war crime. Argor knew that Hussar had obtained the gold from a Ugandan trading company which itself had imported the gold “from the region.” At the time, virtually no gold was produced in Uganda and almost all gold exported from Uganda was smuggled from mines controlled by unlawful armed groups in neighboring DRC.

 

3. WHY HAS THE OFFICE OF THE ATTORNEY GENERAL OF SWITZERLAND (OAGS) CLOSED THE CASE AFTER A 16-MONTH INVESTIGATION?

The OAGS decided that the evidence in its possession was insufficient to conclude that Argor-Heraeus was aware of the illegal origin of the gold.

 

4. WHAT ARE THE MAIN ARGUMENTS IN THIS LEGAL DECISION AND WHAT DO THE NGOS THINK ABOUT THIS?

  • The OAGS confirmed that the gold refined by Argor-Heraeus had indeed come from a rebel armed group in the DRC and that the act of refining it had been crucial to the group’s war effort.
  • The NGOs welcomed this conclusion, which was in line with the evidence they provided to support their claims.
  • In the decision, the OAGS noted that the refining was an objective act of complicity in pillaging but that evidence of Argor’s knowledge of the illegal origin of the gold was lacking, thus shielding the company from any form of sanction.
  • The NGOs find this a regrettable conclusion as there was an abundance of public information in this regard (articles and reports from the mass media, the UN and NGOs). This conclusion could end up encouraging companies active in the precious metals sector not to ascertain the origin of the raw material they receive in order to guard against any possible prosecution.
  • Noting that, according to case law, a regulatory violation could lead to a criminal conviction for laundering by omission, the OAGS finally ruled that the company was in breach of its own regulation, adopted in accordance with the Law on Laundering (LBA) and the Law on the Control of Precious Metals (LCMP). The OAGS that stated that, in the presence of “concrete indications (…) that should have raised Argor’s suspicions, (…) [it] failed to clarify the origin of the gold although its internal regulations required it to do so.” However, the OAGS decided that this violation should not result in the company’s conviction because “it was not clear (…) that the defendants had any doubts as to, or had concealed any indication of, the criminal origin of the gold.”
  • The NGOs believe that this reasoning could have harmful consequences: it could result in refining companies preferring not to seek further information if there are any doubts as to the illegality of the raw materials being processed. It simply encourages them to bury their heads in the sand.

 

5. WHY HAS AN APPEAL NOT BEEN MADE AGAINST THIS DECISION?

Under Swiss law, NGOs do not have the right to act as plaintiff in proceedings. They are therefore only able report activities that they consider to be in violation of Swiss law. Even when a decision is passed on a case that has been reported by them, they cannot appeal against it. In this case, the victim of the pillaging was formally the DRC since the mineral resources that were pillaged belonged to this country. The DRC did not, however, appear as a plaintiff.

 

6. WHAT WERE THE MAIN STAGES IN THE CASE?

  • Between 2004 and 2012, in collaboration with the Open Society Justice Initiative, Kathi Lynn Austin investigated the dirty gold coming from the DRC and sent her findings and evidence to TRIAL.
  • TRIAL then undertook a further year’s investigative and legal analytical work before filing a criminal complaint with the Federal Prosecutor’s Office on 30 October 2013.
  • On 10 March 2015, the OAGS decided to archive the case, subsequently making this decision public.
  • For more information on the precise details of the proceedings, see www.stop-pillage.org.

 

7. WHICH NGOS HAVE BEEN ACTIVE IN THIS CASE AND WHAT HAS BEEN THEIR ROLE?

The complaint Argor was based upon nine years of investigative work carried out by Kathi Lynn Austin (Director of CAP), supported by the OSIJ. The Justice Initiative has also supported TRIAL’s lawyers in developing the international legal arguments around the case. The results of these investigations have been shared with Jersey Channel Islands and UK law enforcement authorities.

TRIAL (Track Impunity Always) is a Swiss NGO fighting the impunity enjoyed by those responsible for and complicit in the most serious international crimes.

trialinternational.org

Open Society Justice Initiative is a program of the Open Society Foundations that uses law to protect and empower people around the world. Its work includes combating natural resource–related corruption.

www.opensocietyfoundations.org

Conflict Awareness Project is an international not-for-profit organisation that investigates, documents and brings to justice those principally responsible for arms trafficking and the transnational criminal operations that are fuelling these conflicts.

conflictawareness.org

 

8. WHAT NEXT FOR THE NGOS THAT ARE FIGHTING PILLAGING AND LAUNDERING?

These three NGOs are currently working on a number of cases that could be brought to trial in different countries. These cases remain confidential for the moment.