What to do about 3T Conflict Minerals

 As the then-president of the UN Security Council Amr Abdellatif Aboulatta stated in August 2017, summarizing the UN Group of Experts report, “Improved efforts to trace the origin of tin, tantalum and tungsten had reduced the ability of armed groups to benefit from the exploitation and trade of those minerals.”[1]

The combination of all of the reforms resulting from the student-led pressure campaign, the legislation, and company efforts have led to the following impacts:

• Discouraging smugglers. Intel, Motorola, and other leading firms set up the Conflict-Free Smelter Program to audit smelters worldwide, which has been a very important step toward building conflict-free supply chains because it narrows the market for conflict minerals. The tech companies and the U.S. Congressional legislation (Section 1502 of the Dodd-Frank law) has gotten over 250 of the world’s smelters to go through the audits (over three quarters of the world’s smelters for 3Ts and gold overall) and over a thousand electronics and other companies to use the program in their supply chains. As a result, there are far fewer places for 3T minerals smugglers from Congo and Rwanda to turn to, since three-quarters of the world’s 3T smelters are compliant with the auditing program and thus cannot buy untraceable minerals. There is still much work to be done on gold, however.

• Demilitarizing Mines. This has led to some important concrete positive changes in Congo. First, roughly eighty percent of 3T miners surveyed in eastern Congo do not now work under the threat of armed groups, according to the most recent independent survey in 2016 that examined over 2,000 mines.^[2] This is a major change compared to 2010 when the U.N. Group of Experts found that “in the Kivu provinces, almost every mining deposit [was] controlled by a military group.” The certification process has also increased monitoring of child labor in these mines. In April 2017, over 30 Congolese civil society groups concluded in a statement, “Dodd-Frank… led to a positive change. In the east of the Congo, around 8,500 children left armed groups between 2009 and 2015.”

• Defanging Armed Groups.  Coupled with other key efforts by peacekeepers and others, the Dodd-Frank law has helped reduce the power of major armed groups. The law and efforts by leading companies have taken away a key incentive for Rwanda’s intervention in Congo: the ability to profit from the 3Ts. As the law’s implementation improved and as more mines have become certified as conflict-free in Congo (nearly 400 mines as of mid-2017), it became more difficult for Rwanda to pass off smuggled conflict minerals as its own. Before the law passed, a series of Rwandan-backed rebels were responsible for some of the worst atrocities in Congo, but today the UN Group of Experts reports that there is no longer a major Rwanda-backed armed group in Congo.^[3] The efforts by the Congolese army, UN peacekeepers, and U.S. government were also pivotal in dislodging the most recent iteration of those, the M23. Also, the FDLR rebel group, whose leaders helped carry out the Rwandan genocide, has dwindled from 6,000 troops in 2007 to fewer than 1,000 in 2016, according to the UN. ^[4] Again, the efforts of peacekeepers have been very important regarding the counter-FDLR campaign as well.

As one mining investor eyeing possible mines in the region said, “Dodd-Frank [the Congressional law] has made a huge impact, wildly beyond the architect’s dreams, on the economics of the whole mining supply chain. It makes it unprofitable for armed groups to mine … Investors like ourselves are now able to look at mines again.” [5]

What to do about Conflict Gold

Consumers play an indispensable role in shaping company behavior. Consumer-driven demands have influenced and helped expand the conflict-free policies and momentum of leading electronics companies. Electronics consumers pushed companies to engage in supporting conflict-free electronics products. Jewelry consumers can now likewise use their influence to encourage jewelry retailers to create conflict-free gold jewelry with gold from Congo and more actively support conflict-free gold initiatives in Congo and the surrounding region.

One Toronto-based jeweler is using conflict-free gold from Congo in its jewelry line by directly sourcing it from the IMPACT Just Gold project.  The Enough Project and other activists are encouraging other jewelers to do the same.   “[T]he mine workers will have a chance at a higher income.  And consumers will have precise proof — for the first time — that their gold jewelry is free from the taint of war or corruption.”[6]

“Consumers are asking more and more questions — they want it to be ethical,” Ryan Taylor of Fair Trade Jewellery Company said.  “But they don’t want just a logo or a branded sticker.  The idea is to create a baseline of trust, based on the proof in the documentation.”[7]  Under this system, the gold will be traced to the precise mine from which it comes, and perhaps even details about the miner who extracted the gold.[8]

“What miners really want are better prices and transparency,” Joanne Lambert, executive director of the NGO IMPACT, opines. After a two-year study, her organization concluded that the miners most wanted to be supported to participate in the gold markets with real-time price information and supply chain costs.  They wanted improved scales to weigh the gold they were digging so they wouldn’t be cheated by buyers. They felt most empowered by these kinds of steps.[9]

Apart from jewelers, there are other key parts of the solution to conflict gold as well. Based on our research, three other areas are critically important to the solution: 1) To enact consequences for major conflict gold smuggling networks, from armed commanders to refiners, in particular for the U.N. Security Council to place targeted sanctions on major conflict gold smugglers, and for banks and refiners to do additional due diligence on red-flag gold transactions from the Great Lakes region; 2) To change the incentives for traders from smuggling to a legal, conflict-free gold trade, mainly through tax reform and regional harmonization. In particular, electronics and jewelry companies, the U.S. government, the World Bank, and the Public-Private Alliance on Responsible Minerals Trade (PPA) should work with the DRC Ministry of Mines and governors in eastern Congo to overhaul the tax regime for gold, such that it does not incentivize pillage.^[10] The U.N. should continue working with the International Conference on the Great Lakes Region (ICGLR) and regional finance ministers to harmonize taxes on gold in the region in order to facilitate an increased legal, conflict-free gold trade; 3) To reform the “hand carry” system on airlines that allows significant gold smuggling to take place from the Great Lakes region to Dubai.^[11]

What to do about Rwanda

Rwanda has long been involved economically in eastern Congo, as the vast majority of trade from eastern Congo goes through Rwanda (as well as Uganda and Burundi) due to poor infrastructure links within Congo, the distance to Kinshasa, and lower transport costs to Rwanda.[12] Until recently, most of this trade was conducted in an illicit manner through the smuggling of conflict minerals. Now, though, Rwanda has a burgeoning mining industry of its own, with the Rutongo tin mine (Rwanda’s largest tin deposit), new investments at the Musha and Ntunga tin mines, and approximately four hundred other mines currently in Rwanda.[13] This is dwarfed by eastern Congo, however, which has approximately 1,500 to 2,000 3T mines.[14] The UN Group of Experts has documented in several reports the smuggling of minerals from Congo to Rwanda.[15]

But the nature of the Rwanda-Congo economic relationship could change significantly for the positive–as could that of the broader region, including Uganda–if infrastructure were to be more developed, political will for cooperation were to increase, and a transparent, certified-conflict-free trade in natural resources were to grow. Such a trade would offer countries throughout the region the opportunity to participate in a much larger-scale regional economy driven by Congo’s natural resources–with Congolese businesses in the lead but transparent and legitimate Rwandan and other regional investors contributing as well through service provision, investment, infrastructure, etc.

Rwanda has developed excellent infrastructure in the form of well-paved roads, information technology connectivity, and stable electricity; has overseen very high economic growth rates; has the third-lowest level of corruption in Africa, according to Transparency International;[16] is rapidly becoming an English-speaking nation; and according to the World Bank, has reduced its bureaucratic red tape to the point of being the world’s eighth-easiest place to open a business–above the United States.[17] President Kagame has realized that increased regional trade and investment are key ways to advance the economy.[18]

Unfortunately, the regime still represses fundamental rights, targets political and civil society opponents, and does not allow free electoral competition, which could certainly jeopardize future stability as it has in so many other countries pursuing similar political repression.[19]

Meanwhile, Congo has abundant natural resources but very poor roads and electricity supply and is in the bottom 15 percent[20] and bottom 5 percent,[21] respectively, on global lists for corruption and the difficulty of conducting business. It also has extremely limited infrastructure to transport resources throughout the country or abroad. Most of the production in eastern Congo leaves through Rwanda, Uganda, Kenya, and other neighbors.

This combination of factors points to a lesson drawn by the Rwandan leadership from Southeast Asia. Similar to Singapore and Malaysia, Rwanda believes that it and Congo can grow together if Rwanda positions itself as a gateway for international businesses to invest in Congo’s natural resource sector, while attracting investors on the basis of good roads, electricity, transparent business regulations, service provision, and banking institutions. Singapore grew in a similar way from the 1960s to the 1990s by attracting investors interested in neighboring Indonesia’s and Malaysia’s natural gas and oil. Singapore focused on lowering its corruption, making corporate tax rates attractive, increasing higher education, and providing financial services to companies investing in the natural resources of Malaysia and Indonesia, which had higher levels of corruption and instability. Many companies set up headquarters in Singapore but invested in the neighboring countries, so it was a win-win result. All three countries benefited tremendously from this arrangement: Malaysia, Indonesia, and Singapore are now all in the top 20 percent of world economies.[22] At the same time, the international community should more squarely pressure Rwanda to make progress on democratic and human rights reforms overall.

What to do about Legal Accountability

Mixed chambers:  The Sentry’s Holly Dranginis has written extensively about justice in Congo and the idea of a “mixed chamber” to address Congo’s gaping justice needs.[23]   Congo’s parliament has proposed the idea of specialized mixed chambers which would focus on prosecuting atrocity crimes in Congo.  This would help address gaps in the military justice system and bring together Congolese and international jurists. The mixed chambers — strongly supported by Congolese civil society groups locally and Human Rights Watch internationally — would be a national judicial institution created under Congolese law and composed of both Congolese and international judicial staff, mandated to prosecute atrocity crimes in relative proximity to where they took place, with high standards of independence and due process, insulated from political interference. It would likely have a more expansive jurisdiction than the military justice system, with the power to prosecute foreign nationals and civilians. Cases in the mixed chambers would address grave crimes committed in Congo, including pillage, with the oversight and support of international experts and resources. The mixed chambers are also designed with long-term justice reform in mind: they would provide Congolese jurists with hands-on legal training and improve judicial protocols, strengthening Congo’s justice sector overall.[24]

As Holly has written, Congolese civil society has pressed for the mixed chambers for more than a decade, but despite having much local, national, and international support, the law instituting the mixed chambers still has not passed the Congolese legislature. In 2010, a seminal U.N. report on Congo’s crimes endorsed the idea of the mixed chambers, and the Congolese government also endorsed the institution. The following year, civil society in Congo continued to push for the draft law on the mixed chambers to advance but parliament failed to approve the bill that year. In October 2013, even President Kabila expressed his support for the bill in front of parliament, but the bill did not pass.[25]

USIP Initiative for Prosecuting Economic and Environmental Crimes: Recognizing gaps in justice for economic and environmental crimes, the United States Institute for Peace launched a convening initiative to help improve approaches to prosecuting these crimes in the national court systems. The initiative included a symposium in April 2016 including key Congolese prosecutors, judges, and investigators, international justice experts, and justice officials with experience prosecuting atrocity crimes linked to environmental resources, including from Colombia. The initiative is an ongoing collaborative effort with Congolese officials and organizations, offering research, tools and support to help support a handful of emblematic cases making their way through the existing domestic court system in Congo.[26]

 Military courts and victim protection: Congo’s military courts have a relatively established history of prosecuting war crimes and crimes against humanity for a domestic court system. As Holly has written, “Congo’s operational military courts are currently the most viable local forum for prosecuting the war crime of minerals pillage perpetrated in Congo. These courts have developed some significant case law and experience related to war crimes prosecution in recent years, but they remain hamstrung by political interference and intimidation.”[27] The Minova trial which focused on prosecuting soldiers and officers for mass rape, while problematic in a number of respects, especially related to due process rights and inadequate investigations, set new precedents in protection for victim-witnesses testifying about sexual violence in criminal trials.[28]

 Cooperation with the International Criminal Court: The ICC has opened six cases in the Congo, involving seven arrest warrants. Crimes in those cases include war crimes and crimes against humanity, including enlisting and conscripting child soldiers, murder, rape, sexual slavery, and pillage. Congo was the site of the Prosecutor’s first investigation, and led to its first two convictions. All of the Congo-related investigations and cases relied in part on the cooperation of the Congolese government, civil society, and hundreds of witnesses and victims who participated in trial or assisted investigations.

Holly has closely followed one of the ICC’s most significant Congo cases, that of Congolese ex-Vice President Jean-Pierre Bemba.  The ICC first issued an arrest warrant for Bemba in May 2008, when he was the president and commander-in-chief of the opposition Movement for the Liberation of Congo (MLC). He was arrested in July 2008 and transferred to The Hague to face charges involving crimes committed in neighboring Central African Republic.[29]  Bemba was charged with rape, murder, and pillage as war crimes and rape and murder as crimes against humanity. The trial began in late November 2010 and lasted just under four years.  He was found guilty in March 2016 of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). According to the court, the attacks were large scale and targeted civilians.[30]

Bemba was the first ICC defendant to be convicted of sexual violence crimes and one of the only with a high-level government office. He served as one of Congo’s Vice Presidents from 2003 and 2006, between the commission of his crimes and the time of his arrest.

In her work with Enough and The Sentry, Holly has strongly promoted promising mechanisms related to financial accountability in this case.  The court identified and froze roughly $6 million worth of Bemba’s assets, with $3.5 million devoted to legal fees. In May 2008, the court issued a request to Portugal for the identification, tracing, freezing and seizure of the property and assets belonging to Bemba. In all, the court’s asset search involved requests to eight different countries.[31]  Bemba’s seized assets could be paid out to victims, and the court is currently taking submissions on how they should be distributed.[32]

A separate parallel case arose in related to witness tampering in Bemba’s original case. Bemba and four of his associates were charged with crimes under article 70 for influencing defense victims by providing false testimonies favorable to Bemba’s case. They were all convicted in October 2016.[33] Extremely common in international justice cases and often fatal to a prosecutor’s case, witness tampering is prohibited by the Rome Statute and actionable by court authorities in parallel proceedings to the case at issue.

Prosecuting Pillage:  The war crime of pillage is another important legal area for Congo. As Holly explains, “Theft in the context of armed conflict constitutes the war crime of pillage, which is punishable in many domestic and international jurisdictions.  Prosecuting armed actors and their facilitators for natural resource pillage can help end the impunity that enables illegal financial networks to thrive in conflict zones.  Prosecutions are a direct, effective way to help disrupt conflict financing and improve accountability for economic crimes–like trafficking and money laundering–and the atrocities they fuel.”[34]