It will be a marvellous thing – the true personality of man – when we see it. It will grow naturally and simply, flower-like, or as a tree grows. It will not be at discord. It will never argue or dispute. It will not prove things. It will know everything. And yet it will not busy itself about knowledge. It will have wisdom. Its value will not be measured by material things. It will have nothing. And yet it will have everything, and whatever one takes from it, it will still have, so rich will it be. It will not be always meddling with others, or asking them to be like itself. It will love them because they will be different. And yet, while it will not meddle with others, it will help all, as a beautiful thing helps us by being what it is. The personality of man will be very wonderful. It will be as wonderful as the personality of a child.
Oscar Wilde – The Soul of Man Under Socialism
In The Soul of Man Under Socialism, Wilde was postulating a world devoid of private property, a world in which humanity had time to devote itself to the higher ideals of the intellect instead of wasting its time and energy in the pursuit of vain glory. To Wilde:
The chief advantage that would result from the establishment of Socialism is, undoubtedly, the fact that Socialism would relieve us from that sordid necessity of living for others which, in the present condition of things, presses so hardly upon almost everybody. In fact, scarcely any one at all escapes.
What Wilde was envisioning was a utopian ideal, the impossible dream of Don Quixote de la Mancha, he who does battle with giants mounted on Rocinante, the first and foremost of all the hacks in the world. Unfortunately for humanity socialism was indeed mounted on a hack, but unlike Don Quixote socialism’s hack wasn’t the first and foremost of all the hacks in the world. Just because socialism’s first tilt at the windmill of truth proved problematic, doesn’t mean humanity should abandon its pursuit of the ideals of socialism, particularly the ideal of universal justice.
The disembodied tongues of the voiceless
Misery and poverty are so absolutely degrading, and exercise such a paralysing effect over the nature of men, that no class is ever really conscious of its own suffering. They have to be told of it by other people, and they often entirely disbelieve them. What is said by great employers of labour against agitators is unquestionably true. Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community, and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary.
In October 2004, units of the Congolese Armed Forces (“FARDC”) moved in to regain control of Kilwa which was briefly in the hands of a rebel band, looting, murdering and raping their way through the remote town in central Katanga. At the end of the raid over 70 people had been butchered and many more raped and mutilated by the troops. It was a barbaric attack, one of many in the eastern parts of the Democratic Republic of Congo (“DRC”) in the last decade. But what made the Kilwa incident different was the allegation that Anvil Mining – an Australian-Canadian company operating a large silver and copper mine nearby – had provided the soldiers with logistical support.
According to eyewitnesses, the troops used Anvil vehicles to terrorise the town, killing and beating villagers and looting their houses. An investigation by the United Nations Organization Mission in the Democratic Republic of Congo (“MONUC”) concluded that over 70 people were killed and highlighted a string of other grave crimes and human rights violations. What the MONUC report also contained was a potentially explosive admission from Anvil – whose Dikulushi mine was only 50kms away from Kilwa and which transported copper and silver concentrates from the town by barge on a daily basis – that it had provided logistical support to the FARDC in the form of vehicles, company drivers, flights, food and money.
One boy tells of seeing his father shot and stabbed by soldiers using an Anvil vehicle. His body was then dumped outside town near a mass grave that, according to villagers, contains the bodies of at least 20 other men.
According to UN investigators, 14 of these victims were forced to kneel at the edge of a burial pit before being shot, one by one, in the back.
A Kilwa mother says she found the bodies of her two sons at the mass grave:
My sons were in the house when the soldiers arrived. They took the boys out and shot them and they looted the house…
The local police chief says all the vehicles used by the soldiers were from Anvil. He was accused of collaborating with the rebels and taken to a makeshift jail with nearly 50 other prisoners and beaten:
Some of them were tortured to death in front of us, some of them were so badly beaten that their ribs were broken and they were vomiting blood…
As usual, the military justice system followed its normal course and took no action. Then in July 2005, Four Corners aired a documentary about the massacre resulting in an increase in international pressure. Finally in October 2006 the Congolese military authorities agreed to hand over seven of their personnel, who were charged with war crimes in line with Article 8 of the Rome Statute of the ICC, including Colonel Adémar Ilunga, who had commanded the counter-offensive in Kilwa. Three employees of Anvil, including two South African security managers, were also accused of complicity.
The subsequent military tribunal acquitted five of the seven military personnel. Colonel Ilunga and another soldier were convicted of the torture and murder of two students from the garrison town of Pweto and sentenced to life imprisonment, although their sentences were later reduced to just five years’ imprisonment. The court ruled inter alia that the majority of those who had died in Kilwa had been members of a rebel group and had been killed in clashes with Congolese troops. This finding was made despite the fact that an UN investigation found that the rebels surrendered without resistance, and in the Kilwa carnage that followed unarmed civilians and sympathisers were also killed. The court did not accept that the military had carried out extrajudicial executions or that some of the victims had been buried in unmarked graves in the village of Nsensele, ruling that the site indicated by numerous witnesses and UN human rights investigators was a cemetery and not a mass grave.
While confirming it acquiesced to the government’s wishes, Anvil insists it had no choice and vehemently denies any responsibility for what transpired at Kilwa. In a statement issued to the ASX following the airing of the Four Corners programme Anvil said:
Anvil had no option but to agree to the request, made by the military of the lawful government of DRC…Anvil had no knowledge of what was planned for the military operation, and was not involved in the military operation in any way.
In 2005 Australian law firm Slater & Gordon (S&G) on behalf of a number of NGOs, asked the Australian Federal Police (“AFP”) to look into the matter to ascertain whether there are grounds for a criminal action. According to S&G lawyer Richard Meeran, mounting a successful legal case against Anvil would rest on the key factor of the company’s awareness of how the DRC army planned to handle the “small-scale” rebel uprising and the likely outcome. Meeran went on to say:
I think the company ought to have known, because it is a matter of record of the reputation of the Congolese military in terms of brutality… It is important that companies that get involved in this type of thing should be held to account.
Following its normal course the corrupt politicised AFP did not lay any charges. The AFP has not made public its reasons for failing to prosecute the company. We can only guess, but it likely has a lot to do with the “not biting the hand that feeds you” mentality that has prevailed in the AFP since the days of the Keelty/Howard dyarchy.
The farce they call ‘just-us’
The prosecution’s case against Anvil Mining and its employees, focused on their failure to demand the return of the company’s vehicles once it had become apparent that they were being used in the commission of serious crimes and human rights violations. However, the tribunal sided with the company – ruling that Anvil Mining’s vehicles and logistical support had been requisitioned, acquitting the three employees who were on trial for lack of sufficient evidence and finding that the initial charges against Anvil Mining Congo were unfounded.
With respect to the tribunal’s findings, it should be noted that, the trial was marked throughout by numerous procedural deficiencies and irregularities. The court did not hear crucial evidence from key individuals and some prosecution witnesses did not attend the mobile court hearings in Kilwa for fear of reprisals. These issues led Louise Arbour, the UN High Commissioner for Human Rights, to issue a statement expressing her disquiet about the verdict of the tribunal, in which she said:
I am concerned at the court’s conclusions that the events in Kilwa were the accidental results of fighting, despite the presence at the trial of substantial eye-witness testimony and material evidence pointing to the commission of serious and deliberate human rights violations.
According to the 2010 UN Mapping Report:
The Kilwa case demonstrates the difficulty in proving the legal responsibility of private companies in the perpetration of serious human rights abuses and violations of international humanitarian law.
But it also shows that there are ways of holding companies to account – by taking action internationally.
International justice – the real hack in the drama
Anvil is incorporated in Canada’s Northwest Territories, is listed on the Toronto Stock Exchange and has offices in Canada, Australia, South Africa and the DRC. Realising that the Congolese system would never provide any justice for them, an association of citizens from the DRC took the fight beyond Congo’s borders and filed a petition in November 2010 for certification of a class action case in Montreal against Anvil for the company’s alleged role in the Kilwa massacre.
The plaintiff in the case – the Canadian Association against Impunity – is made up of families of the victims and other Congolese citizens affected by the Kilwa attack. Diverse organisations, including Rights and Accountability in Development, two Congolese non-governmental organisations (Action contre l’impunité pour les droits humains and the Association Africaine de defense des droits de l’Homme), Global Witness, the Canadian Centre for International Justice and L’Entraide Missionaire are board members of the association.
In April 2011, Superior Court Judge Benoît Emery rejected Anvil’s arguments and ruled that the case was properly bought in Québec and that neither the DRC nor Australia were better fora for the matter. Anvil appealed that judgement and at the end of January 2012, the Appeal Court found in favour of the company, ruling that the case could not be heard in Quebec. However, the plaintiff has already decided to continue the fight and ask Canada’s Supreme Court to hear the case.
There have been very few human rights cases against corporations in Canada. In 1997, a group of indigenous Guyanese initiated a suit in the Superior Court of Quebec following an environmental disaster at the Omai gold mine. They sued for negligence in Quebec, where the mine’s majority owner, Cambior, was incorporated. This was the first suit brought by non-nationals before a Canadian court concerning the overseas operations of a Canadian mining company but the court dismissed the case, declining to exercise jurisdiction. The decision cast a decided chill over litigation in Canada concerning overseas mining. Many potential plaintiffs were discouraged by the precedent and by the adverse costs awarded. So, given the precedent-setting nature of the Anvil case, the Supreme Court’s decision will be eagerly awaited.
Adding a further complication to their quest for justice, rather than ‘just-us’, on 17 February, 2012, China’s Minmetals Resources (“MMR”) announced that it had succeeded with its C$1.3 billion bid for Anvil Mining, winning 90 percent acceptances. MMR, a unit of China’s biggest metals trader, wanted Anvil for its Kinsevere copper project in the DRC, which is expected to produce 60,000 tonnes of copper cathode a year.
While the plaintiffs might still lose their long search for court/Western sanctioned justice, if we as individuals take the time to consider our purchasing decisions and avoid dealing with corporations that are tainted with others blood, the brutal attack on Kilwa may yet be avenged and its victims not forgotten.