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Are mining companies liable for pillage in the Congo?

On the heels on the recent UN report on support to armed groups in the DRC (which can be found here), there is more and more debate about “due diligence.” This term is being flung around liberally, including in the recent US House of Representatives bill, without exact definition. But how liable are international mining companies for buying minerals that fund armed groups? This is very contentious area that isn’t very well defined. Although I am no legal expert, I will wade in a bit.

  • In the United States, as in many other countries, it is a crime to purchase goods that have been stolen. The key factor here is that the recipient knows that the goods were stolen. Depending on the value of the goods, it can be prosecuted as a felony or misdemeanor. As far as I know, there is no exact equivalent in international law. So, are the minerals in the eastern Congo stolen? Not exactly, but their production often does lead to the violation of international law.
  • International law does, however, define the crime of pillage. The unlawful appropriation of private and public goods during conflict was prohibited as far back as the 1907 Hague Regulations and the 1949 Geneva Convention. Crimes of pillage have been prosecuted by the Nuremberg Trials, the UN Tribunal for Yugoslavia and the UN Tribunal for Rwanda. Article 8 of the International Criminal Court’s statute defines pillage as a war crime. (See here for the relevant cases.)
  • But is it pillage to buy minerals that have been taxed or produced by armed groups? The Open Society Institute is explicitly looking into this possibility, as (so I understand) is the ICC in some of its investigations.
  • The key here is define what exactly the threshold of a crime is. Obviously, pushed to its extreme it would be ridiculous – could I be prosecuted for a war crime for typing this on a computer than contains minerals that were once taxed by rebels in the DRC? This is how the ICC defines criminal responsibility:
  • “aids, abets or otherwise assists in [the crime’s] commission or its attempted commission, including providing the means for its commission; “…in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or(ii) Be made in the knowledge of the intention of the group to commit the crime;

Certainly not impossible to make the case. It will depend on knowledge and intent. But pressing these kinds of charges, even if it is just to prove that some companies were “aiding and abetting” will strike the fear of God in international business. There has been a lot of work done to dispel the notion that we are not responsible for the conditions in which items we consume are produced – just think of Nike & sweatshops. But most of the cases for far (see here for case against Rio Tinto in Papua New Guinea) in courts have concerned more direct involvement by mining companies. Let’s see what the lawyers can cook up.

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