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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Conflict Minerals & the Law

East Africa is no stranger to conflict and human rights abuse and its wealth of minerals has long drawn attention from unscrupulous profiteers.  Combined efforts of governments, corporations, the United Nations, and nonprofit organizations have
diminished the trade in 
conflict minerals but much remains to be done.

On April 25, 2014, the MSBA became the first state bar association in the nation to pass a resolution limiting the use of “conflict minerals” from the Democratic Republic of Congo (informally, Congo), a country that commentators call “the rape capital of the world.”  An estimated 1,152 women and girls are raped daily, 48 raped hourly.1  This conflict, the most devastating since World War II, began in Congo in 1996 and has claimed more than 6 million lives, yet most Americans know little about it and the world community has been unable to stop the violence.  While Congo geographically is far-removed from Minnesota, links between what occurs there and the law, business, and human rights practices in Minnesota and across America give the subject of conflict minerals heightened urgency in our newly globalized economy.

Congo, Rwanda, & Conflict

The historical background of Congo and Rwanda relates directly to the current conflict and to legal efforts to stem the violence.  The cause of this catastrophe runs deep, reaching back to King Leopold II of Belgium, who enslaved the indigenous people of Congo in the late 19th and early 20th centuries in his quest for great wealth.2 In Leopold’s single-minded pursuit of riches from ivory and rubber, the death toll from his colonial legacy reached Holocaust-like proportions: an estimated 10 million people perished from torture and brutality, disease and starvation.  And like today’s conflict in Congo that draws scant global attention, the terror that Leopold inflicted on millions of innocent men, women, and children remained obscured from world censure for decades.

Countries with great riches sometimes seem cursed.  These resources—gold, diamonds, minerals, water, oil, and in Leopold’s time, rubber and ivory—exert an inexorable and magnetic attraction for those willing to use any means to gain access to the raw materials. Congo is truly cursed:  first in the inhuman exploitation of victims of the slave trade long before Leopold’s troops came to Congo; then in a starved, terrorized, mutilated, and decimated indigenous population under Leopold’s rule; and now in wars ravaging Congo for the last two decades.

In 1994 the genocide in Rwanda claimed 800,000 lives.  There is a direct connection between colonialism in Rwanda and Congo, the genocide in Rwanda, and violence in Congo today.  Rwanda, a small, resource-poor, landlocked country in the heart of Africa, just east of Congo, was also a Belgian colony in the beginning of the 20th century.  The Belgians were absentee rulers, instead giving control of Rwanda to an ethnic group labeled “Tutsi.”  The Tutsis constituted about 15 percent of Rwanda’s population and they governed the remaining 85 percent who were identified as Hutus. This division was rather arbitrary. Hutus and Tutsis share language, religion (nearly all are Catholic), and, to a significant extent, they share culture and family ties through intermarriage.  Differences accrue largely to economics and lifestyle; the Tutsis are primarily cattle-herders and the Hutus are farmers. The Belgians instituted a system of identity cards that “fixed” these labels of ethnicity.  The cards looked shockingly similar to those designed by the Nazis to label, identify, and monitor Jews living throughout occupied Europe during World War II.

After decolonization occurred in Rwanda in 1962, the majority Hutus took control of the government.3  For decades there was on-again, off-again violence, sometimes escalating to thousands and thousands of deaths on both sides, in an ongoing struggle for control of the country.  By the early 1990s, disenfranchised, displaced, and angry Tutsis were fomenting civil war in Rwanda.  By 1994 conditions were fragile.  The country’s economy was collapsing. More than half of the population was living on fewer than 1,600 calories daily,4 deforestation and soil erosion had taken an enormous toll on essential food production5 and had reduced most of the farm-dependent Hutus to abject poverty; and social services (health, education, infrastructure, and production) all had been cut by the World Bank’s Structural Adjustment Program to support Rwanda’s debt service.6  In addition, Rwanda’s earnings from coffee, the chief export commodity, fell precipitously due to changes in the global market; funds were misappropriated for military purposes; and 71 percent of the national economy was allocated to military expenditures.7

In early April 1994, in Arusha, Tanzania, the United Nations, the Organization for African Unity (OAU), and various western nations including the United States brokered a peace accord that would create a power-sharing government of Hutus and Tutsis with support for fundamental freedoms, democracy, and rule of law.8  After that peace agreement was signed, on April 6, 1994, the Hutu president of Rwanda flew back to Kigali, Rwanda’s capital city. His plane was shot down by unknown assailants as it approached Kigali’s airport and the president, along with the president of Burundi who was also in the plane, was killed.

For Hutu hardliners, the assassination was the trigger to attempt the complete extermination of all Tutsis and moderate Hutus in Rwanda and to solidify Hutu control of the country.  This genocide was not high-tech; instead of using bullets or poison gas, nearly a million people were killed with machetes, axes, and clubs and an estimated 500,000 Tutsi women were raped.9

Paul Kagame, head of the Tutsi troops during the civil war, led his Rwandan Patriotic Front army (RPF) through the country and, following the death of an estimated 30,000 Hutus,10 finally brought the genocide to a close by mid-July, only a hundred days after the killing frenzy had begun.

As Tutsi forces gained control, Hutu perpetrators fled west across the border into neighboring Congo, where there were Congolese Hutus and great riches.  Above the ground, Congo is the poorest country on the planet as ranked on every social indicator: literacy, infant mortality, longevity, poverty, etc.  But below the ground, Congo has gold, tin, tantalum (also known as coltan), and tungsten: minerals that are used in all of our small electronics, including cell phones.  Congo is also home to thousands of Tutsis.

When the Hutu perpetrators fled into Congo, they brought with them their weapons, their hate, their greed for power and control, and their legacy of using rape as a tool of genocide.  Rwanda’s Hutus began fighting against the Congolese Tutsis; in retaliation, Rwanda’s new Tutsi government, headed by the former soldier Paul Kagame, armed a Tutsi militia to fight in Congo.  Other militias were formed; other countries’ armies joined in the struggle; and the conflict devolved to a devastating fight to gain access to the minerals. The fighting continues today despite the world’s largest and longest-running United Nations peacekeeping mission and countless unsuccessful efforts to negotiate peace.

The Rule of Law and Congo

The rule of law intersects this conflict in a number of ways.  First, the International Criminal Court (ICC), formed in 2002 to prosecute individuals for genocide, war crimes, crimes against humanity, and aggression, has successfully indicted and tried some of the worst offenders of human rights on the planet for these charges and for rape, the conscription and use of child soldiers, and war crimes.11

Second, the American Bar Association’s Rule of Law Initiative (ROLI) has operated in Congo since 2008,12 establishing mobile courts, access to justice and judicial reform, and implementing a legal system where virtually none had existed to prosecute crimes of rape and gender violence.  ROLI has provided legal aid to more than 16,000 victims of sexual violence, held nearly 2,000 trials, and received convictions for more than a thousand perpetrators.   In addition, ROLI has also raised funds to support education in Congo for those who want careers in law to bring justice to the victims.

Information about the ROLI program illustrates not only a focus on the prosecution of perpetrators but also efforts to educate victims about support they can receive for coming forward.

Through radio programs, public service announcements, billboards, word of mouth, and ABA ROLI’s travels to remote villages, large numbers of Congolese, including would-be rapists, now understand that there are consequences for rape. Further, these same channels of communication have also educated people about the fact that ABA ROLI provides psychological counseling to rape survivors and their families, part of its multi-disciplinary approach to the rape crisis. Without such counseling, many survivors have remarked that they would not have been able or willing to testify against their perpetrator in open court.13

Third, there have been many efforts to provide medical and psychological treatment for survivors.  Following a visit to Congo by then-Secretary of State Hillary Rodham Clinton, the U.S. Department of State allocated funds to combat violence against women and girls, including prevention and response, community engagement, and capacity investment in local nongovernmental organizations.14  At the state level, Minnesota’s Mayo Clinic has sent medical missions, equipment, and supplies to Congo’s Panzi Hospital, run by Congolese physician Dr. Denis Mukwege, to enhance surgical treatment of the brutal gynecological wounds sustained by female victims.  The Twin-Cities-based Center for Victims of Torture facilitated a long-running program of psychosocial programming in eastern Congo to reduce trauma and promote healing in communities, families, and individuals.

Conflict Minerals & Dodd-Frank

The fourth and most significant action has been the passage of a federal law to restrict funding of the militias’ sale of conflict minerals.  On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act into federal law. Tucked away within the 848-page act were little-known sections 1502-1504 which directed the S.E.C. to impose additional reporting requirements on U.S. companies regarding their sources of conflict minerals including tin, tantalum, tungsten, and gold (as well as other minerals determined by the U.S. Secretary of State as financing conflict in Congo). The reporting requirements were modeled after the Kimberley Process Certification Scheme, established in 2003 by United Nations General Assembly Resolution 55/56 to prevent “conflict diamonds” or “blood diamonds” from entering the rough diamond market and to “ensure that diamond purchases were not financing violence by rebel movements and their allies seeking to undermine legitimate governments.”15

The Dodd-Frank reporting requirements affect a wide array of companies including those in electronics, aerospace, automotive, jewelry, communications, healthcare equipment, and manufacturing conglomerates. In order to be compliant with Dodd-Frank requirements, these companies must submit an annual Conflict Minerals Report to the S.E.C. and publish that report on their websites. Companies are required to conduct supply-chain due diligence and, where necessary, to perform third-party verification and/or furnish details that may include the mine of origin. If, however, a company is unable to ascertain the source of its minerals, this fact must be disclosed in its annual report.

In 2013, several associations representing manufacturers and other businesses brought a suit against the S.E.C., challenging the disclosure requirements of the rule promulgated by the S.E.C. as directed by Dodd-Frank. The D.C. District Court granted summary judgment in favor of the S.E.C., and the associations appealed. On April 14, 2014, the D.C. Circuit Court of Appeals in Nat’l Ass’n of Mfrs. v. S.E.C.16 upheld all the disclosure requirements except for the requirement that companies using conflict minerals state on their websites that those products were not “DRC conflict free.” The D.C. Circuit held that this requirement violated the associations’ 1st Amendment right against compelled commercial speech. However, in American Meat Institute v. U.S. Dept. of Agriculture17 (affirmed by the D.C. Circuit in an en banc opinion on July 29, 2014), the court directly overruled the holding on compelled commercial speech in Nat’l Ass’n of Mfrs. v. S.E.C. The D.C. Circuit recently granted the S.E.C.’s petition for panel rehearing, ordering the parties to address the applicability of the ruling in American Meat Institutes to Nat’l Ass’n of Mfrs.18  Thus, those companies that have not already posted their annual Conflict Minerals Reports may be legally required to do so. Yet regardless of the ultimate resolution of that 1st Amendment issue, all of the major provisions of Dodd-Frank remain good law, and more importantly, the provisions have already had a serious and successful impact in Congo.

Prior to the passage of Dodd-Frank, only a handful of companies such as Intel, HP, Apple, and about a dozen others led efforts to establish industry-wide auditing systems to better weed out conflict minerals from their supply chains. Dodd-Frank was necessary to bring in over 1,000 companies that had previously made little or no effort to source the minerals in their products. Since Dodd-Frank has come into effect, many of those companies have set up, joined, or improved systems designed to clean up supply chains and comply with Dodd-Frank’s requirements.  These programs include the Conflict-Free Smelter Program (CFSP), the Organization for Economic Cooperation and Development (OECD) Due Diligence Guidelines, and the International Conference on the Great Lakes Region (ICGLR) Regional Certification Mechanism.

The CFSP was established in 2009 and uses independent auditors to determine which smelters have mechanisms to ensure that they are sourcing conflict-free minerals. In 2009, only one smelter passed as conflict-free. Today, because of Dodd-Frank, 87 out of approximately 200 smelters have a conflict-free certification.19  Not only has Dodd-Frank successfully created strong market incentives to use these programs, it has also helped shrink the market for nontraceable minerals (that is, minerals from the African Great Lakes region that do not go through a conflict-free program.)  For those minerals that are not certified as “conflict-free,” the pricing is anywhere from 30-60 percent less than for those that go through one of the sourcing programs.

The positive effects of Dodd-Frank have been reinforced by cities, schools, companies, and nonprofit organizations, such as the MSBA, that have signed resolutions supporting the efforts of companies that are taking steps to ensure their products do not contain conflict minerals from Congo.  In the state of Minnesota, Macalester College, the University of Minnesota, and William Mitchell College of Law, among more than 160 colleges and universities around the world,20 have all passed student-sponsored resolutions supporting conflict-free policies and companies taking an active role in sourcing the minerals in their products.  The city of Edina, Minnesota became the fourth city in the country, along with Pittsburgh, St. Petersburg, and Madison, Wisconsin, to pass a similar resolution.

Eastern Congo has also seen some positive progress since Dodd-Frank was enacted.  In late 2013, Congolese troops, aided by U.N. troops, retook control of the city of Goma from the rebel military group M23, and soon thereafter M23 ended its rebellion, which had caused horrific numbers of deaths of innocent men, women, and children.  Additionally, military operations have successfully reduced threats of armed violence from other rebel groups in the region.  As a result, many mines have removed armed actors. In particular, General Bosco Ntaganda, who was known as the “kingpin of the minerals smuggling ring,” surrendered himself into U.S. custody in Rwanda in 2013 and currently faces 13 charges of war crimes and five counts of crimes against humanity at the International Criminal Court in The Hague, Netherlands. Many of the mines that were under his control are now on the path towards becoming conflict-free.21

Yet, unfortunately, even with the successes in sourcing tin, tantalum, and tungsten, some huge problems remain concerning conflict minerals in Congo.  In particular, gold is still being used to finance armed actors as well as business and political elites in the region.  The U.N. Group of Experts recently estimated that 10 to 12 tons of gold worth $380-$500 million  was smuggled out of Congo in 2013 alone.22 While Dodd-Frank has already had enormous positive effects for Congo, there remains much to be done to ensure that minerals do not finance terrible human rights abuses in the region.

Local Initiatives

Major companies headquartered in Minnesota took the lead to promote transparency and to establish conflict-free mineral certification plans before the June 2, 2014 Dodd-Frank Act deadline.  For example, in 2011, 3M adopted a Conflict Mineral Policy,23 which required its suppliers to provide 3M with minerals and recycled materials that do not directly or indirectly finance the militias in Congo.  3M’s policy affirms its commitment to end the genocide in Congo and to support responsible sourcing of conflict minerals from Congo and surrounding countries.   To ensure compliance, 3M’s policy provides that it will assess and monitor its suppliers’ ongoing performance with its Conflict Minerals policy, and the company will terminate its business relationship with suppliers who are noncompliant.24

The 3M policy requires its suppliers to adopt a similar Conflict Minerals policy, to implement plans to support compliance with their policy, and to require their suppliers to do the same.  To further transparency, 3M suppliers must have their own suppliers complete a survey developed by the Conflict-Free Sourcing Initiative (“CFSI”), to which 3M and nearly 200 other companies, including Minnesota businesses like Best Buy, Ecolab, IBM, Medtronic, Seagate Technology, and Symantec, also belong.25 The 3M supplier must then use the survey results to complete 3M’s version of the CFSI template.  The CFSI supply chain survey, similar to the CFSP program described above, is a reporting template designed to identify the country of origin of minerals and the smelters and refiners used to refine the minerals.  CFSI was founded by a number of industries in 2008 to develop and implement conflict-free practices and audits for smelters and refiners in Congo and surrounding areas.

To limit the revenue generated by militias from conflict minerals and to help bring peace and stability to Congo, Minnesota manufacturing companies can take action like 3M by doing the following:

  1. Create and publicly state a policy that acknowledges the problem of conflict minerals and communicate what the company is doing to eradicate conflict minerals from its supply chain.
  2. Join efforts involving multiple industries to ensure minerals are purchased from responsible sources and implement internal practices to ensure that all of the raw materials in its supply chain are responsibly sourced.
  3. Participate in efforts to encourage stronger diplomatic solutions to end the violence and empower local Congolese communities through economic development and capacity building.26

Likewise, as consumers, individual attorneys can take action to help end the genocide in Congo by taking the following steps:

  1. Before purchasing products with electronic components, check the high-ranking companies listed on the Enough Project’s Conflict Minerals Company Rankings list27 that have taken proactive steps to trace and audit their supply chains, pushed for conflict-free minerals legislation, and exercised leadership in industry-wide efforts to help Congo develop a clean trade.  Then reward those companies with your business.
  2. To help raise public awareness, spread the word to other organizations, business associates, friends and family about the human rights violations occurring in Congo.

Conclusion

Efforts at resolving this conflict are ongoing at international, national, state, and local levels with critical measures short of on-the-ground sustained military action.  However, much remains to be done.  All states, municipalities, organizations, and individuals can support the various programs in effect today.  The International Criminal Court and its founding Rome Statute, ratified by 122 nations,28 is not yet ratified by the United States.  The ABA and MSBA29 support this court; other legal organizations are encouraged to do the same.  Other cities, states, colleges and universities and businesses can put ethics at the foundation of organizational and personal purchasing practices by buying small electronics only from those manufacturers that are “clear-sourcing” their purchases from Congo.  Members of the MSBA can support the ABA ROLI program in Congo through direct participation in bringing law and justice to Congo and through scholarship support to Congolese students seeking law degrees in their own country.

The legacy of colonialism, slavery, and genocide in Congo is a brutal one, but the legal efforts at all levels suggest hope.  MSBA members can take pride in their role advancing peace and justice on the other side of the world through practices that include our own local efforts.

 

Nicholas J. Webb is a third-year law student at William Mitchell College of Law. He is a Benjamin B. Ferencz Fellow in Human Rights and Law, a member of the Warren E. Burger Inn of Court, and a member of the William Mitchell Law Review.

Sonja Dunnwald Peterson is an attorney, formerly with Dunnwald & Peterson. PA in Minneapolis, and practicing discrimination and employment law litigation for the past 28 years.  She recently began working for the Metropolitan Council, serving as Senior EEO Consultant.  She is former cochair of the MSBA Human Rights Committee and a recipient of the MSBA Human Rights Award “for outstanding work in the advancement of human rights.”

Ellen J. Kennedy, PhD, is the founder and executive director of World Without Genocide at William Mitchell College of Law.  Kennedy is also an adjunct professor at William Mitchell and is the Minnesota representative to AMICC, a national organization that advocates for the International Criminal Court.  She also serves on the Human Rights and Relations Commission for the City of Edina, Minnesota.

 

Notes

1 Jo Adetunji, “Forty-eight Women Raped Every Hour in Congo—Study Finds.” The Guardian (05/12/2011). http://www.theguardian.com/world/2011/may/12/48-women-raped-hour-congo.

2 Information about Congo’s colonial history is taken from Adam Hochschild, King Leopold’s Ghost:  A Story of Greed, Terror, and Heroism in Colonial Africa. Boston and New York: Houghton Mifflin Company, 1998.

3 Outreach Programme on the Rwanda Genocide and the United Nations, “Rwanda, A Brief History of the Country.” http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml.

4 Jared Diamond, Collapse:  How Societies Choose to Fail or Succeed. New York: Viking Penguin USA, 2005, p. 321.

5 Id. at 319-320.

6 Michel Chossudovsky and Pierre Galand, “The 1994 Rwandan Genocide. The Use of Rwanda’s External Debt (1990-1994). The Responsibility of Donors and Creditors.” Montreal: Global Research, 2014. http://www.globalresearch.ca/the-1994-rwandan-genocide-the-use-of-rwandas-external-debt-1990-1994-the-responsibility-of-donors-and-creditors/5377229.

7 Id.

8 Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front.  International Conflict Research Institute, Ulster University, Londonderry, U.K. http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/rwan1.pdf.

9 Survivors Fund. http://survivors-fund.org.uk/resources/rwandan-history/statistics/.

10 “Editorial: Alison Des Forges Documented Genocide in Rwanda,” The Washington Post (02/18/2009). http://www.washingtonpost.com/wp-dyn/content/article/2009/02/17/AR2009021702718.html.

11 International Criminal Court: Situations and Cases. http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/pages/situations%20and%20cases.aspx

12 American Bar Association Rule of Law Initiative: Where We Work. http://www.americanbar.org/advocacy/rule_of_law/where_we_work/africa/democratic_republic_congo.html

13 Michael Maya, “Reflections on ABA ROLI’s Efforts to Combat the Rape Crisis in War-Torn Eastern Congo,” http://www.americanbar.org/advocacy/rule_of_law/where_we_work/africa/democratic_republic_congo/news.html

14 U.S. Department of State: Secretary’s International Fund for Women and Girls: Combating Violence, “Fact Sheet.” http://www.state.gov/s/gwi/rls/other/2010/140812.htm

15 The Kimberly Process. http://www.kimberleyprocess.com/

16 748 F.3d 359 (D.C. Cir. 2014).

17 American Meat Institute v. U.S. Dept. of Agriculture, 2014 WL 3732697 (D.C. Cir. 07/29/2014).

18 Nat’l Ass’n of Mfrs. v. S.E.C., Order (D.C. Cir. 11/18/2014).

19 Dennis Zogbi, “Dodd-Frank Law Said to Have Major Impact on Mining of Tantalum Ore.” tti/MarketEye Resource Center (07/01/2014). http://www.ttiinc.com/object/me-zogbi-20140701.html

20 Raise Hope for Congo: Conflict-Free Campus Initiative. http://www.raisehopeforcongo.org/content/conflict-free-campus-initiative

21 Fidel Bafilemba, Timo Mueller, and Sasha Lezhnev, “The Impact of Dodd-Frank and Conflict

Minerals Reforms on Eastern Congo’s

Conflict.” The Enough Project. http://www.enoughproject.org/

22 Final report of the Group of Experts on the Democratic Republic of the Congo (01/23/2014). http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_42.pdf

23  See, 3M documents at http://solutions.3m.com/wps/portal/3M/en_US/SD/Supplier/Requirements/SREE/ConflictMinerals/; see also, http://multimedia.3m.com/mws/mediawebserver?mwsId=SSSSSufSevTsZxtUoxmeOx_BevUqevTSevTSevTSeSSSSSS–&fn=Supply%20Chain%20Policies.pdf.

24 Id.

25 Conflict-Free Sourcing Initiative. http://www.conflictfreesourcing.org/membership/

26 See, Responsible Sourcing Network. http://www.sourcingnetwork.org/minerals/ 

27  Raise Hope for Congo: Conflict Minerals Company Rankings. http://www.raisehopeforcongo.org/content/conflict-minerals-company-rankings

28 International Criminal Court. http://www.iccnow.org/?mod=romeratification

29 American Non-Governmental Organizations for the Criminal Court. http://www.amicc.org/usicc/supporters

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