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DR Congo: aiding and abetting violence. Criminal charges against manager of the German-Swiss Danzer Group

The Danzer case: local subsidiary pays military and police to brutally harrass residents

On May 2, 2011, a unit of local security forces entered the village of Bongulu in Équateur province, DR Congo. According to eyewitnesses, around 60 soldiers and police went on a rampage, beating numerous villagers and raping several women and girls. The security forces used the vehicles of a timber company, Siforco S.A.R.L. – at the time a subsidiary of the German-Swiss Danzer Group. Not only did the company provide the vehicles and drivers, the local manager of the Danzer subsidiary also paid the soldiers and police after the raid. The violence was triggered by a conflict between the villagers and Siforco over investment in social and infrastructure projects.

Not an isolated case: police and military in the pockets of private companies

The Danzer case is typical of a widespread problem in Africa, Asia and Latin America: projects or business deals of transnational enterprises lead to social conflicts, with local security forces often responding with extreme violence. It is not unusual for police and soldiers to be deployed directly by the companies and even receive support from them. In the course of their missions, the security forces commit serious human rights violations – including gender-based violence, especially against women.

All the more reason therefore to remind legislators of what the 1995 UN World Conference on Women in Beijing explicitly recognized: that the promotion and equality of women is a question of human rights and a prerequisite for social justice. All forms of gender-based violence must be punished.

At the same time, it must be noted that governments are not alone in bearing responsible for violating human rights. Time and again, corporations, their subsidiaries and staff have been directly or indirectly implicated in human rights violations, in some cases through targeted cooperation with violent regimes or parties to a conflict. Companies benefit in their business activities from the often brutal actions of the police, the army or paramilitary groups.

Neither national nor international laws offer an adequate framework to press criminal charges against companies for human rights violations. The UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises provide clear guidance on addressing the risk of human rights violations by subsidiaries in weak or authoritarian states and in conflict zones. While the principles are not legally binding, they represent international soft law and the recognized consensus of the international community.

On closer inspection, they also offer enough potential to ensure that the respect of women’s rights as human rights are considered more strongly as a matter of corporate responsibility. The UN Guiding Principles state that companies must take the different effects of human rights violations on women and men into account. The UN Working Group on Discrimination Against Women in Law and Practice and the Gender, Business and Human Rights Reference Group support the UN Working Group on the Issue of Human Rights and Transnational Corporations in implementing this approach.

Managers’ due diligence – also for subsidiaries

Two years after the raid on Bongulu, the European Center for Constitutional and Human Rights (ECCHR) and Global Witness filed criminal charges against a German senior executive of the Danzer Group with the Tübingen public prosecutor’s office. The manager stood accused of aiding and abetting, through omission, offenses against sexual self-determination, grievous bodily harm, unlawful detention and arson on the basis of having neglected his duty to prevent the subsidiary from supporting the crimes of the Congolese security forces.

With this case, the ECCHR wants to show that companies like Danzer Group must take the specific human rights risks of the regions in which they operate into account. Brutal attacks and sexual violence by security forces in DR Congo cannot be regarded as unexpected, occasional excesses by any means. The management of Danzer could and should have known that police forces in Équateur province regularly resort to violence against civilians, and that the province had the second highest incidence of rape in DR Congo in 2007. Moreover, it is common knowledge that the police and military forces in DR Congo are not only extremely violent, but that they also depend on paid private “contracts” in the absence of pay by the government.

The Danzer case has shown that to date, due diligence requirements for foreign subsidiaries of European companies have only been defined on a case-by-case basis and without sufficient legal certainty. Legislative clarification is still required. The German and other governments in the EU have an obligation to define such due diligence requirements clearly and to anchor them in national and European law so as to provide more effective legal recourse to victims of human rights violations.

In its recommendations 28 and 30, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) emphasizes the responsibility of states to implement measures to prevent violence as a form of discrimination against women. This responsibility extends to acts by state and non-state actors and explicitly also to corporations acting extraterritorially. The committee is thus calling on states to adopt rules for their national companies operating abroad. It’s high time for Germany to take action.