Painting by Cheri Samba

Lokuta eyaka na ascenseur, kasi vérité eyei na escalier mpe ekomi. Lies come up in the elevator; the truth takes the stairs but gets here eventually. - Koffi Olomide

Ésthetique eboma vélo. Aesthetics will kill a bicycle. - Felix Wazekwa

Friday, December 11, 2009

Are mining companies liable for pillage in the Congo?

On the heels on the recent UN report on support to armed groups in the DRC (which can be found here), there is more and more debate about "due diligence." This term is being flung around liberally, including in the recent US House of Representatives bill, without exact definition. But how liable are international mining companies for buying minerals that fund armed groups? This is very contentious area that isn't very well defined. Although I am no legal expert, I will wade in a bit.

  • In the United States, as in many other countries, it is a crime to purchase goods that have been stolen. The key factor here is that the recipient knows that the goods were stolen. Depending on the value of the goods, it can be prosecuted as a felony or misdemeanor. As far as I know, there is no exact equivalent in international law. So, are the minerals in the eastern Congo stolen? Not exactly, but their production often does lead to the violation of international law.
  • International law does, however, define the crime of pillage. The unlawful appropriation of private and public goods during conflict was prohibited as far back as the 1907 Hague Regulations and the 1949 Geneva Convention. Crimes of pillage have been prosecuted by the Nuremberg Trials, the UN Tribunal for Yugoslavia and the UN Tribunal for Rwanda. Article 8 of the International Criminal Court's statute defines pillage as a war crime. (See here for the relevant cases.)
  • But is it pillage to buy minerals that have been taxed or produced by armed groups? The Open Society Institute is explicitly looking into this possibility, as (so I understand) is the ICC in some of its investigations.
  • The key here is define what exactly the threshold of a crime is. Obviously, pushed to its extreme it would be ridiculous - could I be prosecuted for a war crime for typing this on a computer than contains minerals that were once taxed by rebels in the DRC? This is how the ICC defines criminal responsibility:
  • "aids, abets or otherwise assists in [the crime's] commission or its attempted commission, including providing the means for its commission; " any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or(ii) Be made in the knowledge of the intention of the group to commit the crime;

Certainly not impossible to make the case. It will depend on knowledge and intent. But pressing these kinds of charges, even if it is just to prove that some companies were "aiding and abetting" will strike the fear of God in international business. There has been a lot of work done to dispel the notion that we are not responsible for the conditions in which items we consume are produced - just think of Nike & sweatshops. But most of the cases for far (see here for case against Rio Tinto in Papua New Guinea) in courts have concerned more direct involvement by mining companies. Let's see what the lawyers can cook up.


Fleur de Lies said...

I hope the definition of due diligence will not be confined to the realm of criminal law.

For one, the threshold of what is acceptable under criminal law is higher than under civil law -- some behavior could be wrongful under civil law without amounting to an actual crime. Moreover, while procedural obstacles obviously vary from one country to another, but (1) not every country allows for criminal prosecution of legal entities like corporations, and (2) there often tends to be some state actor involved who is able to control the initiation of criminal prosecution. The potential for political interference or bias - as in the whole France-Rwanda débâcle - becomes very high. This may even be stronger when business interests are at stake.

This is not to say that civil law as it stands offers a better outcome. It is just to say that criminal law may not be the best, and certainly not the only way to go, and that the definition of due diligence would benefit from a broader array of legal sources as stakeholders (e.g. in the OECD group) try to agree upon a more specific definition.

Jason Stearns said...

Fleur - Absolutely. In fact, at the workshop we recently organized at OSI in New York we proposed a local oversight body that investigate and prosecute local traders and sanction them with administrative fines/suspension of mining licenses.

I think we need to hit them from all angles, however. I doubt criminal prosecution will be successful, but even just a mention in an ICC case could help push in the right direction. Plus, not all justice systems are deeply politicized - I'm far from an expert, but I think the use of ACTA against corporate entities in the US could be a fruitful track (although not v successful thus far).

Fleur de Lies said...

Hi Jason,

The proposed fact-finding and oversight body sounded very exciting... It is the kind of sanctions that could have major impacts without having to tackle the hurdles of transnational litigation. My only fear is that it is too well-conceived to overcome political obstacles and get funded... =)

That said, I also agree we need creative lawyering in the west to hold accountable companies at other steps of the supply chain. I'm a little skeptical about the ICC. Ocampo declared about 5 years ago he would look into financial aspects of international crimes. We haven't seen much of it yet. I've heard investigators have picked up the idea again - let's wait and see. As for ATCA, these are civil trials initiated by individuals, probably the reason why it has boomed over the past few years in spite of tangible results (except for reputational pressure, fascinating academic debates and renewed hope amidst civil society actors). But if it hadn't been in the statutes for over 2 centuries, making it problematic for Founding Father Fans to abolish it, I'm sure the previous political leadership in the US would have been more than keen to push for an ATCA amendment... Let's hope OSJI will soon publicly test a few of the more promising corporate accountability paths...

A Nubian Knight's Tale said...

Hey Jason

Nice to see you that you are putting thoughts to paper ...or bytes.

I assume you have visited your share of mines in the east and have a sense of the levels of involvement from local administrators and military to police and self-appointed road monitors who get a piece of this illegal business. I visited a few mining operations in Kalima and saw that the rural population had also bought into this economy line hook and sinker. Agricultural production has dropped to below self-sufficiency levels and basic food stuffs are brought from Kindu and other areas to feed this mineral crazed population. Closing down any part of this illegal process will meet with resistance at so many levels that it will take a change in mindset BEFORE any legislative process can be enforced.

In neighboring Rep of Congo, efforts are being made to use civil society to help monitor the proper forest harvesting process. Lumber companies can sell Congolese lumber at a premium if it comes from select cut forests. NGOs have been paid (and supplied training, vehicles, or provided transport and supplies) as consultants to monitor the recruitment, management, and harvesting process to determine whether the company meets the basic requirements for a GREEN product. There is a clear conflict of interest to have the lumber company pay a local company to critique the practices of its employer, especially if the employer risks cutting off this supply should the critique be negative or hurt the bottom line.

I use this example to drive home a point. The level of involvement in the mining sector in the east is so pervasive that civil society will likely to be recruited to help change the behavior and mindset of populations living in mining areas and to monitor the actions of mining companies in the area. As in most counties (including the United States) the mining company will be asked to support the costs of any study on its practices. Given the lack of professionalism of most NGOs in Congo, the potential for corruption is enormous. And the situation can easily slip back into another malaise with a different face.

We really need to think this thing through beyond the law suits and envision how CHANGE will look on the ground. My focus has always been how things operate on the ground regardless of how they may be designed higher up.

Jason, I have always held esteem for you as someone not afraid to get their hands dirty to get to the truth. It is important not to just ride the band wagon of naming and shaming. We need solid proposals for another way to make this process work in the current situation in Congo.

A Nubian Knight's Tale said...

Jason this is Karana by the way. Not clear from the Darfur blog reference.

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