Personal Reflection: What I've learned so far...

Reflection

Based on my limited and superficial research into the harms of corporations operating within the DRC mining industry, I can see that there is a need for further research into the appropriate mechanisms and regulations capable of limiting corporate harm creation and human rights abuses. The following aspects were discussed within our class, and I am going to address each briefly with respect to what I have discovered after reading about the coltan mining and extractive industry of the DRC.

Capitalism: an economic and political system in which a country’s trade and industry are controlled by private owners for profit, rather than by the state

-         - I think that within the DRC whether or not capitalism as an economic model was directly implemented within the state, it is basically the way the mining industry is being operated. The daily operations within the mines are controlled by military leaders and the political elite and private businessmen who have connections with the militia factions. The revenue stays within the higher ranking officials involved in the efforts, and definitely do not trickle down. The state has very little authority on the procedures and the profits, even though the land being used for extraction is public, state owned territory. As mentioned before, the proceeds that should be publicly exhausted are instead flowing into the pockets of military leaders and their elite networks exhibiting the unfair distribution of wealth being concentrated within these organizations. 

       (Oxford Dictionary)

Liberalism: a political philosophy based on belief in progress, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties; specifically:  such a philosophy that considers government as a crucial instrument for amelioration of social inequities (as those involving race, gender, or class)

-        - The de facto principles governing the DRC (specifically the Ituri region) are certainly not liberal based on this definition. The individuals being forced into labour practices within the mines are not exercising autonomy. The issue with the mining operations is that those who are vulnerable are being repressed and forced into working within the dangerous extraction environment for very little compensation. The mechanisms used to coerce these individuals to work are seen as human rights abuses and are the exact opposite of “protecting political and civil liberties”. Social inequalities are magnified in such environments and the only way to impede these injustices from continuing is by implementing effective methods of regulation and punishment to ensure inequalities are addressed and remedied.

        (Merriam-Webster Dictionary)

Corporate Harm Creation:

Do corporations harm the environment?

- Although I did not examine the environmental impact of the mining industry I do believe that the environment (the soil and surrounding water supply) must be negatively impacted during the extractions.

Workers? 

- Obviously this has been established that the workers are not treated fairly, are not compensated adequately and are subject to human rights abuses used to coerce them into performing their duties in the mines.

People who have no connection to them? 

- As mentioned previously, the battle for control over the mineral regions of the DRC has lead to full on bloodshed and civil war. Any innocent individuals simply living in the region would have been detrimentally affected by the extraction industry. Furthermore, since the regions are technically public, the citizens of the area are not receiving returns that should have been dispensed back into public venues and institutions such as the health system.

Democratic institutions? 

- The mining regions do not observe the influence of the central government at all. Democratically elected governments have no voice in these regions and are basically powerless.  The military leaders are in control of the region regardless of who the state power is.

Finally, a question that comes to mind is, “Who should we punish for corporate harm creation?”

I believe that the CEO’s and Board of Directors of the corporation should take responsibility for their actions; however, I also understand that the implementation of guidelines and principles within the frontlines of the operation is difficult. There needs to be more self-regulation and the ability for managerial individuals to access the frontlines to maintain adequate operational procedures.

I don’t believe that shareholders should be held accountable, because it is possible that they are shielded from the actual dealings and transactions that are occurring. Shareholders may not possess all the required knowledge to address and correct the issues.

Also, as a society we need to address the issues beyond the corporation itself, such as our materialistic impulses and capitalistic greed. These subjects go well beyond simple solutions to harm creation and address broader, more complex forces within our society.

Commentary: Are there regulative solutions to human rights abuses in the mining industry?

Commentary on the article titled: "How can public–private partnerships contribute to security and human rights policy and practice in the extractive industries? A case study of The Democratic Republic of Congo (DRC)" By Rachel Perks.

The author suggests implementing a “Private-Public Partnership” (PPP) initiative in an effort to mitigate conflict surrounding mining operations, using the DRC as a case study. The approach emanates from a partnership between public and private organizations in communities suffering social and economic conflicts. The article notes that global awareness of deplorable corporate acts have augmented pressure on governments, lending institutions and international organizations to address and remedy corporate harms on vulnerable social and economic environments within their own institutions and beyond. Corporate Social Responsibility initiatives stem from such pressures and are an encouraging instrument in preventing human rights violations as well as environmental harms; however they do have their limitations. CSR measures arise from within an organization lacking any consistent, agreed upon measures. Each corporation can introduce their own guidelines which may be very minimal and inconsequential with very little impact on addressing and restraining harms. Furthermore, these self-regulating responsibility measures are basically voluntary, meaning the corporation can choose to implement the guidelines and has full discretion on addressing and/or punishing wrongdoers. Also, a significant aspect required to regulate the mining industry would be both the central government’s ability to monitor and inspect operations and their political will to perform the role of regulator. The DRC seems to lack this rather central feature and will probably continue having difficulties addressing the issues of corporate malfeasance as long as their central government has no influence within the extractive regions of the country.

The article mentions various advocacy initiatives to ensure compliance within the extractive  industry. Examples include: Voluntary Principles on Security and Human Rights (VPSHR), Publish What You Pay (PWYP) and the Extractive Industries Transparency Initiative (EITI). It is interesting to note that the “Voluntary Principles on Security and Human Rights lists on its website AngloGold Ashanti as a corporate participant in the principles initiative.  The first article mentioned AngloGold as one of the leading corporations involved in extractions within the Ituri region of the DRC. I wonder when AngloGold signed on as a participant to the initiative and whether or not demands for corporate accountability within the DRC caused them to join. I also wonder whether or not the principles are being met as of this moment.  

The article then dives into case examples of extraction and human rights issues within various regions in the Democratic Republic of Congo, all of which create the atmosphere of recognition of the harms being created and a willingness by many organizations and corporations themselves to address and rectify the concerns.

The International Criminal Court: Can peace really be achieved?

“Corporate War Criminals and the International Criminal Court: Blood and Profits in the Democratic Republic of Congo”

Julia Graff explores the possible avenues the International Criminal Court (ICC) can take in holding corporations and their officers and managers liable for acts of human rights violations transpiring in foreign nations within the corporation’s daily operations. Some companies have instilled greater mechanisms to monitor perpetrators of these crimes of humanity within their dealings however some corporations have purposely chosen to undertake business transactions within countries such as the Democratic Republic of Congo whose judicial powers are weak and unable to prosecute corporate criminal actors.

The International Criminal Court has jurisdiction over genocides, war crimes and crimes against humanity which have been committed after July 2002. The Office of the Prosecutor (OTP) can receive information of allegations from the United Nations Security Council, and other external institutions but must act within its own force to both investigate and punish criminal actors. Political and military leaders as well as heads of state can be prosecuted within the jurisdiction of the ICC, however corporations cannot. IT is recognized that the inclusion of corporate entities under the realm of the ICC could advance victim compensation and restoration, however also noted are the difficulties in indicting a corporation for criminal misconduct. The court is limited to prosecuting “natural persons” thereby allowing corporate managers, officers and employees to be indicted rather than a corporate entity. The OTP has its sight on the DRC, specifically the excavating industry within the Ituri region, widely known for massacres, mass rapes and forcible labour practices directly and indirectly correlated to the lucrative excavating industry.

 By the year 2002, it has been reported that 85 corporations involved in the mining industry in the DRC breached the guidelines outlined in the OECD which was mentioned in the previous article. Those monopolizing the mining industry in the Ituri region of the DRC are a network of political and military leaders as well as businessmen who exploit the regions resources (which are actually publicly owned assets). The public revenue gets transferred into private capital “by way of secret contracts to joint ventures controlled by private companies, amounting to a multi-billion dollar corporate theft of the DRC’s public assets,” (24). The Rwandan Patriotic Army (RPA) is the national military of Rwanda and it commands most of the coltan mining industry in Ituri and does not have to pay any taxes on minerals extracted in this region. Furthermore, it is noted that the RPA exercises forced labour practices including prisoners taken from Rwanda who then work as slaves in DRC. Additional human rights abuses include:

subjecting local populations, including children, to forced labor in the extraction of natural resources; the torture, rape, and murder of thousands of civilians during military operations to secure mineral-rich land; and the destruction of agricultural infrastructure to force peasant farmers to participate in extractive work, resulting in reduced food supplies and slave-like conditions in the coltan mines (25). 

The pronounced association between transnational corporations, the militant elite of Ituri and the abuses inherent to the extraction industry in DRC contrives corporations’ aiding and abetting abundant human rights violations. This notion of complicity should reinforce the requirement of a corporation’s function of accountability in globalized business ventures especially in regions where corruption is rampant and criminal acts transpire with impunity.

            As with most corporate transgressions, complex matters need to be assessed in order to properly prosecute the offenders. The issue of liability is essential in determining who should be deemed legally responsible for the offence in question. The ICC recognizes the concealed element of corporate crime in areas like the DRC. Corporate actors tend to remain behind the scenes in transactions, for example: “issuing secret orders, turning a blind eye to ‘efficient’ business practices or supplying the means to commit the crime,” (25). Because of this, investigations into the acts of corporate criminals do not require the element of direct participation; to manage prosecuting corporate actors the OTP admits an “intermediary participation” basis for indictment. The first illustration of this type of participation is the idea of “command” or “superior responsibility” which finds individuals who operate as a commander of subordinates. If the commander does not adequately oversee their subordinates’ conduct, they could be held accountable for misdemeanours committed by the subordinate. Proof that the subordinate who committed the offense is actually employed by the commander is required. Influence on others outside the commander’s oversight is not included in the liability of the commander. Furthermore, liability can be formed through “accomplice liability”, where the individual would have acted knowingly in aiding and abetting (including providing the means for commission, i.e. funding) a crime.

These methods of determining liability may alleviate some difficulties in prosecuting transnational corporations, however limitations remain in view. As mentioned before, the OTP has to act on its own initiative, occasionally being incapable of penetrating the criminal realm of coltan mining. Furthermore, investigating and reprimanding corporate malfeasance in these areas are based on complicity with findings and recommendations; mere condemnation from the ICC may not be completely coercive and effective in eliminating corporate misconduct in areas like the DRC. Additionally, those involved may deny cooperation with the OTP on political or economic grounds. From a more optimistic perspective, at least the ICC can address and bring to light issues of corporate harm within the DRC, creating recognition within transnational corporations that their illicit activities may have repercussions even in states with weak judicial systems. If some corporations get pinned by the ICC, perhaps a mechanism of deterrence may emanate, motivating other corporations to ensure adherence to the Universal Declaration of Human Rights and the OECD within their business ventures in nations like the DRC.

Works Cited:

Graff, Julia. "Corporate War Criminals and the International Criminal Court: Blood and Profits in the Democratic Republic of Congo." Human Rights Brief vol.11, no. 2 (2004): 23-26.

Coltan, War, and Money: Exploring Corporate Harm Creation in the Democratic Republic of Congo

“Neither the life of an individual nor the history of a society can be understood without understanding both,” (Mills, 1959). The epistemology presented by C. Wright Mills is understood as a method of equating one’s own personal history and background with the history and context of the society the person is living in. By looking beyond our immediate selves we can better understand our experiences in a broader sense. The sociological imagination exists when we relate the both the biography and the history of ourselves with the world as a whole. This integration offers a valuable perspective on individuals and the historical narrative which inevitably shapes all of humanity. The Democratic Republic of Congo is a blatant example of a country whose historical and institutional context should be recognized before examining the central issues of mineral extraction and its ramifications. Christopher Mullins and Dawn Rothe, in their article “Gold, diamonds and blood: International state-corporate crime in the Democratic Republic of the Congo” (2008), chronicle the nation’s history of conflict and delve into the realm of transnational corporations and the destructive mining industry within the African nation. Using the notion of the sociological imagination in this capacity, we are able to examine the issues mobilized by corporate operations within the DRC by acknowledging the economic, political, and historical forces which have paved the way for corporate transgressions.

Natural resources with high value such as gold, silver, diamonds, copper and coltan have been extracted from the DRC dating back to the 1870s with Belgium’s involvement in the region. Access to the high concentrations of these lucrative minerals has long caused conflict in DRC with neighbouring nations and transnational corporations exploiting the territory, specifically the Northern Ituri region. The more recent civil war of 1998 spurred political and economic chaos in the region which is still being felt and is continuously being utilized and exploited by transnational corporations. The fall of legitimate governmental agencies in DRC has spawned a district controlled and run by military powers.  Various “transnationals, undeterred by the wanton violence and gross violations of international law and human rights, enter the Congolese jungles to negotiate with warlords over access to the minerals.” (82). Although licensing for mineral extraction in the Ituri region was given to Anglogold Ashanti Ltd., the contracts are moot since the real authoritative voice of Ituri are the militia powers. It is these individuals who negotiate with transnational corporations and either grant or deny access to the mineral rich territories. Lack of governmental weight in the mineral mining industry in the DRC is problematic and difficult to regulate. The United Nations has named numerous nations whose corporations are suspected to have engaged in problematic transactions with militia warlords, Canada, the United Kingdom and the United States included.

As mentioned previously, both the first and second Congolese wars need to be recognized to comprehend the institutional mechanisms which allow the expropriation of minerals in the DRC. The conflict in DRC demonstrates how the eradication of colonial empires can predispose nations to corrupt takeovers by the elite or military powers. Social chaos ensues and “ethnic tensions undergird broader economic and political competitions between groups combine to give rise to active paramilitary groups struggling for supremacy in an essentially uncontrolled, and often uncontrollable environment,” (93). Although the cause and extent of the civil wars is beyond the scope of this work, it is important to grasp a general understanding of the institutional decline of DRC. When the DRC was finally granted independence from Belgian rule in the 1960’s the nation experienced discord when an indigenous government was situated and furthered when a coup deposited power to Mobutu Sese Seko. Seko ruled for 25 years and was one of the most corrupt leaders of the DRC, transferring the country’s vast wealth into his own personal capital. Ethnic tensions and the Rwandan genocide played a role in the overthrow of Seko in 1996. These national disparities enabled neighbouring countries Rwanda and Uganda to invade the DRC ultimately battling for control of the lucrative territory of the DRC.  Both nations exploited the region using the most of the profits accumulated from the mining industry to fund their respective militias.

            In addition to the obvious lucrative earnings Uganda and Rwanda enjoyed through the expropriation and sale of the valuable minerals from the DRC, they also received supplementary fiscal assistance from the International Monetary Fund (IMF), a global financial organization as a result. For example, “In 1995, 3.09 tons of gold were exported from Uganda totalling US$23 million, while only 0.0015 tons were produced within the legal borders of the state,” with similar patterns in coltan, coffee and timber exports (91). Despite the discrepancy in export and production values, the IMF recognized the increase in exports as a progressive surge in the Ugandan economy thus increasing its evaluation of Uganda’s ability to repay IMF loans. Both Uganda and Rwanda were then granted additional debt relief packages and given increased lines of credit. A cycle ensues as these loans are not assisting the greater populace, but rather get cemented within the elite and usually corrupt authorities’ possession. The loans either directly or indirectly get funnelled back into the imposing nations’ militias furthering the expropriation of the profitable minerals.

As stated previously, the removal of imperial powers creates an atmosphere which allows economic and social chaos to run rampant. Numerous records show that since the ejection of Belgian rule from the DRC the unstable country and its civilians have experienced massacres, genocide and forced slavery into various industries. The groups who fight over the territory of the mines have persisted in control through diverse mechanisms such as maintaining forced labour practices and the use of extortion and terror tactics. Those in command are certainly not concerned with international mining operation guidelines allowing crimes against humanity to transpire without hesitation. The role of transnational corporations in transactions with the commanding warlords seems to illustrate complicity in the human rights violations creating a need for sanctions. Through the globalized economy, transnationals are exploring countries to conduct business in which tend to have weak judicial systems, allowing for corporate malfeasance (among other things) to exist without penalty. The need for an international body to govern such actions is present and may possibly be the only realistic solution to the issue of corporations dealing with illegitimate authoritative sources on the ground in the DRC.

Currently, various guidelines are in place to ensure corporations abide by principles to protect against human rights violations. For example, in 2003, the United Nations approved a set of standards titled “The Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” which recognizes the significance of corporations’ behaviour with regards to human rights. “This compact is a reminder to transnationals that, even though they are not state actors, they are citizens of the international order and are obliged to follow all principles established in the UN Universal Declaration of Human Rights, including those related to forced labour, bribery, unlawful extraction of resources and the need to compensate workers fairly,” (86). Another illustration is the “Organisation for Economic Cooperation and Development” (OECD) which was signed in 1960. The first part outlines standards expected from corporations in eliminating forced labour practices. This demand is extensively accepted, however in states such as the DRC, warlords who are in power in certain regions enslave locals and force them to work in mining with general immunity since the state has difficulties in enforcing provisions like the OECD.  The second element requires that corporations do not engage in bribery; however it is noted that in the DRC, to even begin negotiation into excavating contracts requires dealings with the local warlords. The United Nations has some influence on pressuring corporations to comply with the outlined standards of behaviour however nothing really compels the actors to fulfill the requirements. If a standard is breeched, “the only real course of action is the issuing of a report condemning the behaviour of the companies and calling for them to cease their actions,” (87).

Recognizing the difficulties and limitations in reprimanding corporations that engage in or aid human rights violations in countries like the Democratic Republic of Congo is imperative. The need for innovative and effective methods of disciplining transnational corporations is required along with the recognition of various forces in place which allow these acts to occur without recourse. The DRC lacks a legitimate government with the power to ensure human rights are protected in excavating regions and external mechanisms in place such as the UN standards have very little strength to enforce requirements in these regions. A greater understanding of the history of the nation can aid the endeavour of protecting the country and its citizens from the harms of transactions between corporations and military-controlled regions in the DRC. 

Works Cited:

C. Wright Mills. The Sociological Imagination. New York, Oxford University Press, 1959.

Christopher W. Mullins & Dawn L. Rothe (2008) "Gold, diamonds and blood: International state‐corporate crime in the Democratic Republic of the Congo", Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, 11:2, 81-99, http://dx.doi.org/10.1080/10282580802057678

Think twice before buying that new [insert newest technological gadget here].

     One day a girl was sitting in class. The teacher asked the students: "How many of you own cellphones?" Everyone in the class put their hand up. The teacher then began to explain the human rights violations which occur in order for companies like Apple to produce their products. Although he did not go into much detail, he did mention that a mineral called columbite–tantalit, or more commonly known as coltan is required to create the circuit board of a cellphone, laptops, DVD players and so on. He also mentioned the forced child labour, if not slavery, and terror which fosters the extraction of coltan in African nations who have abundant supplies of coltan in their mineral rich territories. The girl is me, and that brief story never left my mind. 

     In my current Legal Theory (LY410) class we are examining corporate crime harm creation and I knew that I had to explore the atrocities that occur simply because privileged (and ignorant) individuals in first-world countries demand the latest version of technology (iPhone 6 please and thanks) they can get their hands on. Obviously consumerism pushes the corporations who are responding to demand, but maybe if we were more aware of the detriments of our greed, we might actually be able to necessitate change.

     As a society we need to recognize that we are complicit in the sabotage of peoples and nations that various corporations are executing (specifically in the Democratic Republic of Congo in Africa). Join me in this exploration into the detrimental harms multinational corporations are committing and the examination of any potential legislative solutions we can put in place to prevent the exploitation of innocent civilians and the territory of the DRC.