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.

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.

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.