Summary of the conflict: The company Katanga Mining Ltd. operates a copper-cobalt project in the Democratic Republic of Congo (DRC). This corporation is a subsidiary of Glencore, and is owned by the latter for a stake of 75%. Katanga Mining also holds a 75% stake in two joint ventures with Gécamines, a state-owned mining company in the DRC: Kamoto Copper Company (KCC) and DRC Copper and Cobalt Project (DCP). Overall, Glencore has in the DRC most of its worldwide production of Cobalt. The impacts of the company’s activities span from air and environmental pollution to water pollution, but also child and forced labour, smuggling of materials, fiscal and tax evasion, violence on activists and human rights defenders.
History of the conflict Glencore carries out its activities in the DRC through the subsidiary KCC, and other enterprises in which it holds a controlling participation. It operates in the giant mining assets of KOV, Kamoto, T17, Basin Luilu and Tulwinzembe, which were transferred to the joint venture company under the agreement with the state-owned Gécamines. The agreement grants exclusive rights to occupy, have full benefits, use, maintain, upgrade, develop, and process the tailings, and also grants the surface rights, the concessions, the properties of the Kamoto project and all other mining rights or participations relating to properties held by Gécamines within the mining area. Furthermore, and although the Tulwinzembe’s asset is reported to be the world’s richest mine in terms of both the quality and quantity of Cobalt, the joint venture agreement even provided that, should the concessions contain insufficient matter to meet the production targets defined in the feasibility study, or to feed the processing plant for the period of the joint venture agreement, Gécamines should have made supplementary exploitable concessions available to Glencore.
In its activities Glencore commits the following violations of human rights, as well as labour and environmental standards. It employed child labour at Mosonoi and other company’s mining sites. It uses the labour of expatriates who are not covered by national legislation, social security, or taxation, and do not benefit from citizenship rights. It was guilty of fraud and corruption, especially with regard to the smuggling of profits and materials outside the country. Furthermore, all accounting managers are white expatriates with only one Zambian national woman, as none of the Congolese employees working at the accounting department have access to the company’s financial transactions – which gives an idea of how much the focus of the company has shifted away from contributing to the development of the country. Furthermore, water and environmental pollution can be observed at KOV, Kamoto, T 17 & Basin of Luilu, while human rights of workers and activists who act against the company are being violated, including through arbitrary arrests. Indeed, through different subsidiary private security companies, as well as by means of corrupted government officials, the corporation divides and terrorizes affected communities living around the mining areas that are expanding more and more, thus threatening their survival and living environments. Some of these security companies are managed by ex-Apartheid soldiers from Koevoet and 32 Battalion, both units that were guilty of serious human rights violations in Namibia and Southern Angola in the 1970s and 1980s. Thus, there needs to be a separate investigation into the militarized security sub contractors.
The role of the Architecture of Impunity The World Bank and IMF not only facilitated but also pressured the DRC to privatize several mining industries that were previously nationalized. In the DRC this process took place following the hugely destructive 1997-2003 civil war, and involved the pillage of the country’s resources by both its neighbors nations and above all Western transnational corporations. The privatization of the mining industry thus occurred in a period of chaos, when global transnational corporations like Glencore overtook state-owned mining operations at prices far below their market value. The privatization facilitated the continued and massive tax avoidance that is now bleeding out the resources of the DRC while generating virtually no fiscal income for the country.
Attempts of access to justice The bases to seek access to justice include, though are not limited to, evictions of miners in Kamoto in 2011, Bassin Luilu in 2012, and Tulwizembe in 2013-2014. These operations violated the Basic Principles and Guideline issues by the UN’s Office of the High Commissioner for Human Rights on “development-based evictions and displacement”. Furthermore, the company activities are in breach of the Voluntary Principles on Security and Human Rights, as well as the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the use of Force and Firearms by Law Enforcement Officials. These violations, however, can hardly be addressed by the Congolese justice system.
Generally, in fact, affected communities have been experiencing difficulties in accessing justice. Besides the possibly low awareness about the exact scope and content of their rights, people with the standing to claim justice are being intimidated by government officials who should be protecting them, as well as by other corrupted actors including NGOs co-opting resistance to the mining, and therefore neutralizing communities’ engagement with the company. This situation is also prompted by the fact that many workers for the company are (sometimes illegal) expatriates, thus do not enjoy the same rights as Congolese citizens, but above all are further intimidated to reveal the abuses they suffer before the local justice system. To this situation we may add that the lack of a fully functioning justice system in certain remote areas where the mining and violations are taking place is favoring the company even more, allowing it to act outside the law without judicial oversight.
What Justice could do: a say from the PPT In a hearing that was held in Geneva in June 2014, the Permanent People’s Tribunal (PPT) listened to the video testimony of David Van Wyk, of Benchmark. Considering the evidence brought before the judges by this witness, the Tribunal recognized the actions of the transnational corporation as another example of violations of human and people rights. In line with its full judgement of Madrid, in May 2010, and just a few months before the session that was subsequently held in Mexico in December 2014, the PPT underlined once again how transnational corporations, including Glencore and its subsidiaries in the DRC, systematically violate human and peoples’ rights to their own profit. In the same line, the PPT recognized this widespread practice as a current shortcoming of international law, namely the impossibility of accessing justice and obtaining a remedy that is increasingly becoming an unbearable burden for affected communities, as well as for the credibility of the laws that are supposed to give them shelter. In the same spirit, the PPT acknowledged the necessity to improve international legislation, including through a binding treaty on transnational corporations, and/or a peoples’ treaty, in order to hold transnational corporations accountable for their actions.