tag:blogger.com,1999:blog-1209670742820403516.post5690888839991355317..comments2024-02-24T06:10:42.255-08:00Comments on Congo Siasa: Are mining companies liable for pillage in the Congo?Jason Stearnshttp://www.blogger.com/profile/11454449854081540397noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-1209670742820403516.post-10533356278434819292009-12-18T17:38:08.566-08:002009-12-18T17:38:08.566-08:00Jason this is Karana by the way. Not clear from t...Jason this is Karana by the way. Not clear from the Darfur blog reference.A Nubian Knight's Talehttps://www.blogger.com/profile/04516895204897660369noreply@blogger.comtag:blogger.com,1999:blog-1209670742820403516.post-77654602338262704522009-12-17T08:08:22.997-08:002009-12-17T08:08:22.997-08:00Hey Jason
Nice to see you that you are putting th...Hey Jason<br /><br />Nice to see you that you are putting thoughts to paper ...or bytes. <br /><br />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. <br /><br />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.<br /><br />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.<br /><br />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. <br /><br />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 Talehttps://www.blogger.com/profile/04516895204897660369noreply@blogger.comtag:blogger.com,1999:blog-1209670742820403516.post-15983173259563579062009-12-16T01:57:14.864-08:002009-12-16T01:57:14.864-08:00Hi Jason,
The proposed fact-finding and oversight...Hi Jason,<br /><br />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... =) <br /><br />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...Fleur de Lieshttps://www.blogger.com/profile/06558330899333763704noreply@blogger.comtag:blogger.com,1999:blog-1209670742820403516.post-38655242105478894522009-12-15T19:03:09.157-08:002009-12-15T19:03:09.157-08:00Fleur - Absolutely. In fact, at the workshop we re...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. <br /><br />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).Jason Stearnshttps://www.blogger.com/profile/11454449854081540397noreply@blogger.comtag:blogger.com,1999:blog-1209670742820403516.post-29400212472625860692009-12-15T01:58:20.681-08:002009-12-15T01:58:20.681-08:00I hope the definition of due diligence will not be...I hope the definition of due diligence will not be confined to the realm of criminal law. <br /><br />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. <br /><br />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.Fleur de Lieshttps://www.blogger.com/profile/06558330899333763704noreply@blogger.com