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In October 2002, a United Nations Panel of Experts accused 85 OECD-based companies of violating the Guidelines for their direct or indirect roles in the illegal exploitation of natural resources in the Democratic Republic of Congo (DRC). DAS AIR, one of the largest air transport companies operating in the Great Lakes Region, was cited by the Panel due to its involvement in the coltan trade. The coltan, originating in the eastern DRC, was exploited in an illicit trade condemned by the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo for its financing of occupying forces and rebel militias. The Panel alleged that DAS Air was involved in the transportation of coltan from the eastern DRC to the benefit of the Ugandan backed RCD-ML rebel force. DAS Air thereby operated civilian aircraft in a conflict zone, in contravention of international conventions governing civil aviation.
On 28 April 2005 the NGO RAID (Rights and Accountability in Development) submitted the complaint about DAS Air to the NCP under the auspices of the Guidelines. The complaint alleged that DAS Air had:
Failed to apply due diligence when transporting minerals from Entebbe and Kigali, which had a reasonable probability of being sourced from the conflict zone in the Democratic Republic of Congo (DRC); and,
Undertaken flights between Entebbe airport and the conflict zone in Eastern DRC:
The transportation of coltan from DRC including flights between DRC and Uganda between 1998 and 2001 (when this airspace was closed to civilian airlines due to the conflict); and,
The onwards transportation of coltan from Rwanda and Uganda until December 2001, which the Complainants allege were sourced from the conflict area in Eastern DRC.
These flights coincided with an illegal occupation of the area by the Ugandan military, during a period when the United Nations and NGOs recorded human rights abuses. A flight ban between DRC and Entebbe was in place during the applicable period, meaning these flights were in direct contravention of international aviation conventions (the Chicago Convention).
DAS Air denied the allegations in the complaint and strongly objected to the allegations that it contributed to the ongoing conflict in the DRC and to human rights’ abuses. The company accepted that it transported coltan from Kigali in Rwanda but stated that these flights were halted immediately that DAS Air was notified that the transportation of such cargo from Kigali was unacceptable - this occurred when they came across the UN Panel report in December 2001 (the first report was published on 12 April 2001 citing the link between conflict and resources in DRC and the second report, which named DAS Air was published in November 2001). The company firmly denied that it had ever knowingly transported coltan sourced from the DRC, explaining it believed the coltan it flew out of Kigali originated in Kigali. OECD Watch reports that RAID in turn provided detailed flight logs and other evidence gathered by the Porter Commission – a Ugandan judicial commission set up to investigate illegal exploitation in the DRC – to support its case.
At the meeting that took place in November 2006 with representatives of the NCP's Joint Working Group, Minister Ian McCartney pledged that all the UN Panel cases would be concluded within six months, after which a statement would be made to parliament. But there were long delays in bringing the case to a conclusion.
RAID was, however, appreciative of the efforts that the NCP took to seek the advice of the International Civil Aviation Authority and the British Freight Forwarders Association.
In October 2007, a year after the European Community had imposed a ban on its aircraft, DAS Air was forced into administration. The NCP continued to liaise with the administrators in its efforts to conclude the case.
In July 2008, a strongly worded Final Statement was issued. For the first time in any specific instance, the NCP concluded that DAS Air had breached the human rights provision by flying into a conflict zone in contravention of international civil aviation regulations. DAS Air was also found to have failed to undertake due diligence with regard to its supply chain; the company's contention that it did not know the source of the minerals it was transporting was rejected given its "intimate understanding of the situation and the conflict."
In its 2010 report, '10 Years On', OECD Watch states that one important procedural element of this case is that the UK NCP confirmed that determination of whether or not a breach of the Guidelines has occurred is part of an NCP’s task in handling specific instances. In addition, the case drew attention to the role of transporters, which, under a strict interpretation of the “investment nexus”, would have been considered by many NCPs to be outside their remit.
Applicability of the Guidelines
The dates of the events that are the subject of the complaint by RAID were relevant. The complaint covered the period between 1998 (from the start of the second conflict in DRC) to the end of 2001 (when the Company stopped flying minerals from the area). The current version of the Guidelines came into force in June 2000, replacing the 1991 version. There is precedent for the UK NCP to investigate behaviour that took place before 2000 but in that case the parties were aware of the retrospective application of the Guidelines.
Although there was active engagement in the complaint by Das Air between April 2005 – October 2006, there had been no active consideration as to whether it was appropriate to apply the 2000 Guidelines to events that occurred between 1998- June 2000. From May 2008, the NCP attempted to contact Das Air through its liquidators to see if they had any comments on this issue. No response was received. In this case, the NCP took the view that it was not appropriate to apply the 2000 revision of the Guidelines to events that occurred before 2000. However, the NCP considered that past behaviour is pertinent when considering behaviour that occurred after June 2000.
OECD Watch reports concern that this treatment of past conduct is inconsistent with the retrospective application of the 2000 Guidelines established in the Anglo American case.
OECD Watch case story page: http://oecdwatch.org/cases/Case_41