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Swiss company Kolmar taken to court for possible war crime of pillage through buying smuggled Libyan oil

TRIAL International filed a criminal complaint (“dénonciation pénale”) for complicity in pillage of smuggled Libyan fuel against Kolmar Group AG before the Swiss Attorney General on Friday 22 May.

This comes after a joint report published by TRIAL International and Public Eye on 2 March 2020, which reported that the Zug-based Swiss trading company had purchased smuggled fuel from Libya.

TRIAL International said that having analysed the evidence gathered during its investigation, it concluded that the Swiss trader may have been complicit in the war crime of pillage.

It will be recalled that an investigation spanning over a year by Public Eye and TRIAL International in Switzerland, Malta and Sicily revealed that Swiss company, Kolmar Group AG, a large fuel and biofuels trader had been involved in the illegal smuggling of Libyan fuel.

According to the findings of the report published on 2 March, Kolmar received over 20 shipments of marine gasoil from Libya between the spring of 2014 and the summer of 2015. The company was supplied by a network of questionable individuals: Fahmi Ben Khalifa – alias ‘Fahmi Slim’ – previously condemned of drug trafficking in Libya, and his partners Darren and Gordon Debono, two Maltese businessmen. The fuel was delivered to storage units rented in Malta by the Swiss company, the report had said.

It will also be recalled that in March 2016, the UN panel of experts on Libya identified Fahmi Ben Khalifa as the head of one of the most active fuel smuggling cartels in Libya. In the autumn of 2017, Catania’s Guardia di Finanza – a Sicilian police branch under Italy’s Ministry of Economy and Finance – managed to dismantle the network in its entirety. Libyan, Maltese and Italian nationals stand accused: Fahmi Ben Khalifa, Darren and Gordon Debono and seven other individuals have been charged with ‘transnational conspiracy to launder gasoil of illicit origin and fraud’.

The report said Swiss company Kolmar did not deny having purchased more than 50,000 tonnes of fuel when it requested a right of reply to the report. According to the report, which says it has carried out a legal analysis of the evidence, these purchases could constitute complicity in war crimes.

“There were a significant number of indicators, all of which were in the red, that should have deterred Kolmar from carrying out these transactions. We believe that the evidence gathered warrant an investigation by the Swiss Attorney General to determine whether Kolmar wilfully ignored such signals. If so, the company may have been complicit in a war crime”, said Bénédict De Moerloose, head of the International Investigations and Litigation Program at TRIAL International.

If a company knowingly buys stolen raw materials from a country at war, it may indeed be found guilty of complicity in pillage, a war crime under the Rome Statute of the International Criminal Court as well as under Swiss criminal law, the report explained.

The fuel purchased by Kolmar Group AG had been looted by a smuggling network, with the support of an armed group, at a time when Libya was torn apart by armed confrontation between rival factions. But for the endeavour to prove profitable, the network needed international buyers. This is precisely where the Swiss company might have contributed to the pillage, which – if proven – could lead to its criminal liability. Several individuals involved in the smuggling operation are currently on trial in Italy.

In filing a criminal complaint, TRIAL International said it hopes that the Swiss Attorney General will also shed full light on this case to determine whether Kolmar’s actions in Malta were in accordance with the law. Whatever the outcome of a potential investigation by the Swiss Attorney General, the this case illustrates the need to adopt stricter rules, such as those advocated by the Responsible Business Initiative, to prevent any future involvement of Swiss companies in the financing of armed groups, the report added.

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