Swiss criminal complaint filed against oil trader that used Malta tanks

The NGO TRIAL International has filed a criminal complaint for complicity in pillage against the Swiss company Kolmar Group. 

In a joint report published by TRIAL International and Public Eye in March 2020, the Zug-based trading company was shown to have purchased smuggled gasoil from Libya. 

“Having analysed the evidence gathered during the investigation, TRIAL International concludes that the Swiss trader may have been complicit in the war crime of pillage. 

“It is now up to the Swiss prosecuting authorities to shed light on the Zugese trader’s actions,” the NGO said.

READ MORE How smuggled Libyan oil brought by Debonos’ ships was stored in Malta: investigation

The investigation conducted by TRIAL International and Public Eye retraced the transnational network of subsidized gasoil smuggling from Libya. The fuel was diverted from Libyan tanks with the complicity of an armed group, transhipped from Libyan fishing boats to larger vessels chartered by two Maltese businessmen in international waters, and finally transported to Malta. 

This is where the name of Kolmar Group AG appears: according to the investigation, the Swiss trader purchased more than 50,000 tonnes of gasoil stored in tanks of the Maltese capital between 2014 and 2015. The Swiss company did not deny having purchased this fuel when it requested a right of reply to the report, published on 2 April 2020. 

According to TRIAL, which has carried out a legal analysis of the evidence, extensively provided by C4ADS, 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 Office of the Attorney General to determine whether Kolmar wilfully ignored such signals. If so, the company may have been complicit in a war crime,” said Philip Grant, TRIAL International’s Executive Director. 

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 gasoil 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. 

The suppliers and transporters of the fuel that was accepted in the tanks in Malta are already facing charges in Italy – namely Darren and Gordon Debono, and Libyan smuggler Fahmi Slim Ben Khalifa. 

“TRIAL International hopes that the OAG will also shed full light on this case in order to determine whether Kolmar’s actions in Malta were in accordance with the law,” Grant said. 

“Whatever the outcome of a potential investigation by the OAG, 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.” 

Kolmar AG has declared in an official reply that it complied with its industry standard Know Your Customer policies in its transactions on Libyan gasoil.

“This screening encompasses internal and external sources, including that of financing banks. Kolmar Group AG did not falsify any documents nor had any knowledge of fraudulent activity in relation to customs clearing Libyan gasoil. Kolmar had no involvement with the issuance or procurement of the certificates of origin, which were provided to Kolmar Group AG by its supplier who arranged the shipment.”

Kolmar said that while Fahmi Ben Khalifa’s name appears on certificates of origin, he was unknown to Kolmar Group AG. “Kolmar Group AG traded in Libyan gasoil, not Libyan crude oil. Kolmar Group AG was not trading in breach of any international sanctions.”

Kolmar said it had purchased Libyan gasoil and paid for the gasoil purchased at market prices — not prices “significantly below the market rate", which Public Eye and Trial International report said would be an indication of smuggling activity.

Kolmar said that in 2014-2015, its commercial operations in Malta were not centered or concentrated on Libyan gasoil. Roughly 90% of the gasoil handled in Malta was of non-Libyan origin, the company said. “Furthermore, relative to the total volume of products handled by the Kolmar group worldwide, Libyan origin gasoil was only 0.32% of the consolidated turnover.”

Kolmar denied any involvement in criminal activities or smuggling operations. “Kolmar Group AG has never been contacted or questioned by law enforcement or any regulatory or judicial authorities in any investigation or inquiries related to the matters raised in the Public Eye/Trial International report.”