On 25 July 2023, deputies from the Transitional Legislative Assembly voted unanimously in favour of two articles amending the Mining Code in Burkina Faso. These provisions now make it possible for the government to take money from the Local Mining Development Fund in order to finance the militia force, Volunteers of Defence for the Fatherland (or VDP). The VDP’s official role is to provide support to the regular Burkinabe army in its fight against terrorism. This amendment should be taken very seriously by international mining companies operating in Burkina Faso, as it may result in miners facing serious criminal accusations in various OECD jurisdictions around the world.
Potential charges of complicity in war crimes and of supporting terrorist organizations
The recent request made by the United Nations High Commissioner for Human Rights, for an “impartial” investigation to be conducted into the massacre of 28 people in Nouna, the capital of Kossi province (in the north west of the country), on 30 December 2022, and which some media have attributed to the Volunteers of Defence for the Fatherland (VDP), reveals that this militia is suspected of having committed various war crimes in Burkina Faso.
In addition to the danger that this could lead to mining companies facing a public accusation of complicity in war crimes, or in crimes against humanity, as they are directly funding this militia through the Local Mining Development Fund, there is a further risk that rumours concerning the presence of the Wagner Group in the country are accurate and that all or part of the sums collected by the Local Mining Development Fund are being paid directly to Wagner to finance its assistance in the fight against terrorist movements.
Mining operators could then be accused, under US and European sanctions, of financing an organization and persons who are considered to be terrorists. In France, the recent case brought against Lafarge concerning its operations in Syria shows that France’s National Anti-Terrorism Prosecutor’s Office could open an investigation concerning allegations of complicity and the potential criminal liability of mining companies for war crimes and crimes against humanity under the French Criminal Code.
The Office of Foreign Assets Control (OFAC) of the US Treasury Department might also decide to launch an investigation, if all or part of the sums raised by the Local Mining Development Fund are paid directly to the Wagner Group.
The need to define legal strategies
Amnesty International’s recent report on the regular army’s responsibility for the massacre of at least 147 people in the village of Karma, in the north of the country, on 20 April, shows that the situation is degenerating and that all mining operators and their financial partners will have to quickly define a legal or even judicial strategy, in accordance with their duty of due diligence in matters concerning conflicts and human rights.
Furthermore, given the growing importance of ESG criteria in financing the mining sector and the “name & shame” practice that can prove potentially devastating for a company’s valuation, the stakes are extremely high for these companies.
One option, for miners that obtained their mining license before the entry into force of the 2015 Mining Code, might be to refuse to pay any contribution to the Local Development Mining Fund (i) by relying upon the “fiscal stabilization” clauses in their mining agreement or (ii) by arguing that the government should first take into account any investments they have made for the benefit of the local populations pursuant to their corporate social responsibility (CSR) and deduct such amounts from any contribution to be paid to this fund.
Those mining companies that obtained their mining license after the adoption of the 2015 Mining Code might consider applying to the appropriate courts for an order that any sums to be paid to the Local Development Mining Fund should be held by the courts pending a decision on the legality of this reform.
Mining companies have a duty of care and diligence, not to support violence, even legitimate violence, in a war-torn country. In some cases, they may be able to rely on a force majeure clause in order to suspend their operations and halt any direct contribution to the war effort, in order to avoid being accused, whether rightly or wrongly, of exploiting “conflict minerals”.
Miners operating or intending to operate in Burkina Faso should therefore take urgent legal action to prevent or mitigate the risk posed by the recent development of international criminal accusations being made in OECD jurisdictions against companies that have provided finance or material support to terrorist organizations.
Avocat au Barreau de Paris