TRIAL OPENS IN ANVIL MINING CASE

C O N F I D E N T I A L KINSHASA 000178

SIPDIS

SIPDIS

E.O. 12958: DECL: 02/06/2017
TAGS: EMIN EINV KHUM PGOV CG
SUBJECT: TRIAL OPENS IN ANVIL MINING CASE

REF: 06 KINSHASA 1624

Classified By: EconOff W. Brafman for reasons 1.4 b/d.


1. (U) Summary. The criminal trial of three civilians and
several FARDC soldiers in a Katanga military court is
increasing attention on the DRC's extractive industries. A
GDRC military court in Lubumbashi, Katanga province is
hearing preliminary matters in the case, which arises from
the widely-reported October 2004 violence in Kilwa, Katanga.
The trial is noteworthy because of the rank of one of its
military defendants, its inclusion of three civilians -- all
of whom worked for Anvil Mining at the time of the events --
and because of its possible precedential effect. End Summary.

Background
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2. (C) The trial arises from the FARDC's killing of dozens of
villagers in Kilwa, Katanga in October 2004. Anvil Mining,
an Australian company, allegedly provided logistical support
to the military during this incident, which MONUC
subsequently investigated. The incident received significant
domestic and international attention, particularly from
Australian media. MONUC and local and international NGOs then
pressured the government to investigate the incident. In
October 2006, the Chief Military Prosecutor in Katanga
indicted seven military officers and three civilians for
their alleged involvement in the incidents. The military
officers include Colonel Ilunga Admard, 38th Brigade
Commander and the highest ranking military officer the GDRC
brought to trial during the Transition. According to MONUC,
the prosecutor was recalled to Kinshasa for three weeks in
October 2006 by his superiors to express their displeasure
with his decision to proceed with the case.

Current Status
--------------


3. (C) The five-judge panel opened proceedings December 12,
but thus far the trial has only proceeded in fits and starts.
It reconvened on December 27, then adjourned until January

18. Defendant Pieter van Niekerk, an Anvil security manager
from South Africa, has attended all court hearings except the
initial one. (Note: Niekerk says he was in South Africa at
the time of the incident and thus never involved. End note.)
The other two civilians, one from South Africa, the other
from Canada, have since left the company and have not
attended the hearings. The indictment is apparently unclear
as to whether the prosecutor is also charging Anvil itself.
Proceedings in January adjourned once again after Colonel
Admard's counsel filed a motion asking the presiding judge to
recuse himself on the grounds of partiality. Another judge
has replaced him temporarily for the purposes of deciding the
motion. (Note: The MONUC human rights officer told EconOff
he finds Admard's delay tactics curious, given that he has
now been detained for 18 months, with no prospect of release
before the end of the trial. End note.)

Serious concerns
--------------


4. (C) A debate, even within MONUC, centers around the right
to try the civilians in military court. GDRC authorities
claim that military court jurisdiction over civilians is
legal because neither the Constitution or any statute
expressly prohibit it. Further, the prior Transitional
Constitution, which may be applicable in absence of other
governing law, gives military courts jurisdiction over
persons accused of using a "weapon of war." The trial panel
has denied the civilian defendants' request to send this
issue to the DRC's Supreme Court for a ruling.


5. (C) Regardless of the forum in which this case is heard,
valid concerns remain about whether the process will be fair
and transparent. The DRC's justice system is notoriously
corrupt and inefficient, with the judgment often favoring the
person willing to pay the most bribes. Anvil officials have
already alleged privately that three judges hearing the case
have asked the company for bribes. (Comment: Anvil itself has
not been entirely forthright in this matter. In exchanges
with MONUC and the press, it changed its characterization of
involvement in the Kilwa incident. End comment.)

Comment
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6. (C) Whatever the outcome of the Kilwa trial, potential
investors will be watching closely to see if the process is
transparent and fair. Human rights groups, who have
frequently criticized the many abuses carried out by the
Congolese army, will also be watching the case closely. End
comment.
MEECE