The British government is acting unlawfully in refusing to put forward eligible UK companies and individuals trading in Congolese ‘conflict minerals' for targeted UN sanctions, said campaign group Global Witness today in an application to the High Court for a judicial review.
A number of UK companies known to have been trading in minerals sourced from the eastern Democratic Republic of Congo (DRC) should have been put forward to the UN Sanctions Committee following UN Security Council (UNSC) resolutions in 2008 and 2009. By failing to adequately investigate the companies and individuals the UK government is breaching its international legal obligations, says Global Witness in the claim submitted today.
"It is a sad day when we have to sue the UK government, but we hope that this case will mark a turning point. The issues at stake have global significance for how wars are financed," said Gavin Hayman, Campaigns Director at Global Witness. "These companies have profited from a brutal conflict, and should face UN sanctions - but sanctions are useless without a fair and clear government procedure for considering whether individuals or entities should be listed."
UNSC Resolution 1857, passed on 22 December 2008, calls for a travel ban and asset freeze to be imposed on all individuals and entities supporting illegal armed groups in the eastern DRC through the illicit trade of natural resources. It was backed up and strengthened the following year in Resolution 1896, passed on 7 December 2009. UN Member States are encouraged to put individuals and entities forward for sanctions.
Extensive evidence from Global Witness, the UN Group of Experts and others, shows that British companies have supported armed groups by purchasing minerals from areas under their control in the DRC. Despite this, the UK government has never put any of them forward for sanctions.
"The link between natural resources and conflict in the Congo is well known. Armed groups controlling the trade in minerals like tin and tungsten use the money to buy guns and fund their violent campaign against civilians. The UN resolutions recognised that companies sourcing directly or indirectly from the region are part of the problem. But in spite of our frequent appeals, the UK government has steadfastly refused to act, which left us no choice but to take them to court," said Hayman.
Global Witness believes that the reasoning used by the UK government in refusing to put forward these parties for listing is flawed. A response received from the UK government reveals the absence of a fair and clear procedure for listing individuals and entities for UN sanctions.
The government argues that the UN resolutions do not have retroactive effect, and therefore any evidence gathered before the first resolution was passed (in December 2008) cannot be used to make a case for sanctions. Global Witness believes that this is wrong. Retrospective evidence is sufficient to indicate reasonable grounds for ongoing concern - unless there is strong evidence to the contrary - to suggest that companies previously sourcing from armed group areas may well be continuing to do so.
The UK government also argues that the evidence of sanctions violations contained in the November 2009 report of the UN Group of Experts on the DRC is insufficient to justify listing. This is despite the fact that the 2009 report from the UN Group of Experts names UK company AMC's Thailand-based smelting arm, THAISARCO, as sourcing from armed groups through their supply chains. The report also names UK national Ketan Kotecha, director of Afrimex, as working with a trading house alleged to have pre-financed the FDLR rebel group. The government has never explained why this expert evidence is insufficient.
Either way, the UK government has failed to independently verify if AMC continues to trade conflict minerals from the DRC regardless of suspicions of on-going violations.
When the 2009 UN Group of Experts report came out, the UK government altered its position on retrospective evidence, saying instead that they didn't think the evidence in the Group's report was good enough. But they did not explain why.
The UK government has also said that AMC no longer purchases minerals from eastern DRC and so no action is required. However, given the company's history of indirectly sourcing minerals from armed groups, Global Witness has real concerns. Without a robust procedure by which the government can investigate whether or not AMC (or indeed other UK companies) indirectly purchases conflict minerals or intends to, Global Witness is unsure how the government can make such categorical statements. Global Witness has certainly seen no evidence upon which such statements could reasonably be made.
Global Witness is seeking a mandatory order requiring the new coalition government to revisit their predecessors' decision and put forward for sanctions UK nationals and companies violating the terms of the UN resolutions. An application will be made to the court for a protective costs order and permission to proceed based on the unlawful and unreasonable conduct.
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Notes:
1) The UK Government is currently one of the largest donors of funding assistance to the DRC and is a permanent member of the UN Security Council.
2) UNSC Resolution 1857 extended the financial and travel measures provided for in Resolution 1807 (2008) to "individuals or entities supporting the illegal armed groups in the eastern part of the Democratic Republic of the Congo through illicit trade of natural resources." UNSC Resolution 1896 renewed these sanctions.
3) In 2008, Afrimex was found in breach of the OECD Guidelines for sourcing from two comptoirs with links to the RCD-Goma rebel group and for making ‘tax' payments to the same group.
4) The Amalgamated Metal Corporation (AMC) Group includes four UK-based entities: AMCO Investments Ltd; Amalgamated Metal Corporation Plc; Amalgamated Metal Investment Holdings Ltd; and British Amalgamated Metal Investments Ltd.
5) An arms embargo against armed groups in eastern DRC was first put in place in July 2003. From 2003 to 2009, UN sanctions have continued to be in place and its terms extended.
6) For information on how the minerals of the DRC have fuelled the conflict read Global Witness' reports "Faced with a gun, What Can You Do?" and "Do No Harm, Excluding Conflict Minerals from the Supply Chain."
7) FDLR stands for Forces démocratiques de libération du Rwanda, a Hutu militia whose members are alleged to include perpetrators of the 1994 genocide in Rwanda.
8) Global Witness is represented by Leigh Day & Co Solicitors and Doughty Street Chambers on this claim.
