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IX. International Initiatives to Address Resource Exploitation in the DRC

Continued fighting in eastern DRC throughout 2004 and early 2005 was a stark reminder of the fragility of the peace process.  During the first two years of the transitional government, the international community focused on short-term crisis management and failed to provide consistent diplomatic assistance to implement the peace process.  While timely intervention from the U.K., U.S.A. and South African governments twice pulled Rwanda back from new military operations in Congo, such efforts were sporadic and in the end Rwanda temporarily sent its troops back across the border in November 2004.  Key international actors paid little attention to tackling the underlying causes of the conflict.  While most international governments acknowledged that resource exploitation played a central role in exacerbating and prolonging the conflict in the DRC as a result of the U.N. panel of experts reports, few efforts were made to deal with the issue. The DRC example of conflict and resources raised broader questions of corporate accountability in the developing world, particularly in conflict zones where the exploitation of natural resources could help fund military operations and fuel war.  

U.N. Panel of Experts Reports on Illegal Resource Exploitation in the DRC

The U. N. Security Council first expressed concern about the link between conflict and natural resources in the DRC in June 2000 when it appointed an independent panel of experts to research and analyze the matter.⁴³⁰ The U.N. panel of experts produced a series of reports, the last in October 2003 that detailed how the exploitation of resources had funded many of the different armed groups (local and foreign) fighting in eastern DRC, enriching individual officers of the Rwandan, Ugandan and Zimbabwean armies that intervened in the conflict, as well as elite Congolese actors.⁴³¹ 

The U.N. panel of experts not only documented the link between resource exploitation and conflict in the region, but also considered the connection between the exploitation of resources and international business.  The minerals and other resources from Congo were predominantly destined for multinational companies based in Europe and North America.  In an unprecedented step, the U.N. panel of experts in its October 2002 report listed twenty-nine companies and fifty-four individuals against whom it recommended the Security Council impose financial restrictions and travel bans including a list of eighty-five other companies, which it declared to be in violation of the OECD Guidelines for Multinational Enterprises.⁴³²

The naming of companies by the U.N. panel of experts resulted in considerable controversy. Some governments criticized the panel for basing its allegations on evidence that was not always solid or well-explained. The panel lumped together companies against which it had strong proof together with others for which it did not, thus casting doubts on the whole effort.  Companies and civil society groups criticized the panel for its failure to provide more detailed information on the activities of certain companies.  Numerous corporations responded to the report with swift denials and lobbied governments to ensure their names were removed from the panel’s list, a process which lacked transparency and may have been subject to abuse.⁴³³  The Security Council requested the panel to open dialogue with the named companies.

In their final report published in October 2003, the U.N. panel of experts annexed a list of companies categorizing them according to whether the allegations against them had been resolved to the panel’s satisfaction.   In this final report the panel claimed that the cases of forty-one companies were now ‘resolved’, though it provided no information on how it had come to such a decision.  To complicate matters further, the panel added an important caveat stressing that the category of ‘resolved’ should not be seen as invalidating their earlier findings.⁴³⁴  This left the question of whether companies had breached the OECD guidelines hanging.  Speaking to a British parliamentary group, some companies expressed concern about the categorization process claiming that those companies who had breached the guidelines had “got away with it,” while others who had not were unable to clear their names with certainty.⁴³⁵  The parliamentary committee recommended that the panel’s categorization process should not be relied upon to determine whether a case had been resolved.⁴³⁶  

The experience of the U.N. panel of experts in the DRC illustrates that there should be stricter guidelines used by U.N. panels to ensure an adequate level of proof is obtained, that such investigations are thorough and that transparency is assured.  But as this report has shown, corporations like AngloGold Ashanti have violated international business norms and did breach the OECD guidelines.  Lack of thorough investigations may indeed exonerate those whose behavior ought to be questioned.

Despite the controversy about the named companies, the U.N. panel of experts’ reports contributed to a growing consensus amongst U.N. Security Council members and other international actors that resource exploitation was a key factor in the DRC war.  The council passed four presidential statements and two resolutions drawing attention to the natural resource exploitation in the DRC and its link with the conflict.⁴³⁷  In Resolution 1457 the council strongly condemned the illegal exploitation of natural resources in the DRC, noted its concern that this plunder fuelled the conflict, and demanded that all states act immediately to end these illegal activities.  It urged all States “to conduct their own investigations as appropriate through judicial means, in order to clarify credibly the findings of the Panel” adding that exploitation should occur transparently, legally and on a fair commercial basis, to benefit the country and its people.⁴³⁸

The panel’s reports raised the expectation that U.N. member states would hold to account those companies that were responsible for misconduct, but these hopes were misplaced.  After the publication of their final report in 2003, its mandate of the U.N. panel of experts was ended and the information uncovered by the panel was archived for 25 years.  The failure of the U.N. to follow up on the panel’s recommendations has been a major blow to further progress on the critical issue of the link between conflict and natural resources in the DRC and beyond.

Investigations on Breaches of the OECD Guidelines 

The U.N. panel of experts’ reports significantly increased the profile of the OECD Guidelines for Multinational Enterprises for monitoring corporate behavior in conflict zones.  The OECD Guidelines, adopted by governments in all thirty OECD member countries and by eight non-members, are recommendations addressed directly to companies setting down ‘shared expectations for business conduct’.They are the first international instrument on corporate social responsibility to provide a government-supported (though voluntary) mechanism for monitoring and influencing corporate behavior. The guidelines provide standards of conduct for all key aspects of company operations including respect for human rights and sustainable development amongst others that are to be observed wherever a company operates.⁴³⁹  The guidelines are not directly binding on companies. Adhering governments who have signed up the guidelines, however, are required to set up an implementation procedure. These governments are obliged to set up ‘National Contact Points’ (NCPs) to promote the guidelines and to examine specific instances of company misconduct.⁴⁴⁰

The U.N. panel of experts recommended that NCPs conduct follow up investigations of companies whose cases were listed by the panel as ‘unresolved’.  With the exception of Belgium and the U.K., no other OECD member state launched investigations into any of the companies mentioned. Governments and their NCPs repeatedly blamed the panel for failing to forward the relevant evidence to them and claimed they could carry out no fact finding investigations of their own, despite provisions for such activity under the implementing rules of the guidelines. NGO consortiums in the U.K., Belgium, the Netherlands, Austria, USA and Canada filed complaints to the relevant NCPs on specific breaches to the guidelines by companies listed by the panel. In countries like the U.K. where the NCP did attempt to take cases forward, a parliamentary committee found that progress by the British government “had been slow.” The committee added that it was concerned civil society groups had been excluded from the complaints procedure despite practices to the contrary by other national NCPs and clear guidance on their right to be included as set out in the implementation procedures.⁴⁴¹

The NCP procedure for dealing with these complaints in all relevant countries has been slow and ineffective.  Most government representatives have chosen to use the most narrow, and sometimes unjustified, interpretations of the guidelines.  In a complaint brought by civil society in the Netherlands, the NCP decided the guidelines did not cover trading relationships, only companies that invest, rendering the guidelines inapplicable in this type of common business activity.⁴⁴²   As a result of the narrow interpretations, civil society groups and trade unions have questioned the political will of member states to use them as a corporate accountability instrument.⁴⁴³  The British parliamentary committee recommend in their report that more resources and a higher ranking civil servant be appointed to deal with the outstanding British cases, a recommendation that could be picked up by other governments.⁴⁴⁴  The parliamentary committee added that there should be “more international attention focused on how the take the [whole] process forward.”⁴⁴⁵  The DRC example illustrated that governments have shown a minimal commitment to fully tackling the causes of conflicts.

Response of Regional Governments

The Ugandan Porter Commission

Following the first report by the U.N. panel of experts,the Ugandan government established the Porter Commission to look into allegations of Ugandan involvement in illegal exploitation of resources from the DRC.  It produced its final report in November 2002.  The mandate of the Porter Commission was narrow and it was only allowed to investigate allegations made by the U.N. panel of experts.   From the start of its work, the Commission was hampered by lack of funds for investigation. General James Kazini, in charge of Ugandan forces in the DRC, blocked the commission from going to Ituri to speak with witnesses according to Mr. Justice Porter, and claimed there was no transportation available for commission members.⁴⁴⁶  On the basis of its hearings, the Porter Commission report exonerated the Ugandan government and its army of any official involvement in the exploitation but supported the U.N. panel of experts’ findings in relation to senior Ugandan army officers who, said the Commission, had “lied to protect themselves.”⁴⁴⁷  It particularly singled out General Kazini for having “shamed the name of Uganda”⁴⁴⁸ and it recommended disciplinary action against him.   It also recommended further criminal investigations into Salim Saleh, the brother of President Museveni, who had violated the Ugandan Companies Act.⁴⁴⁹   

To date no judicial action has been taken against either of these two senior officers mentioned above. The supporting documentation sent twice on different occasions by the Commission to the Ugandan Ministry of Foreign Affairs was ‘lost’.⁴⁵⁰  In 2003 General Kazini was sent for retraining in Nigeria and in 2004 Salim Saleh went back to school.

Although the Ugandan army withdrew its forces from northeastern DRC in May 2003, it continued to provide support to armed groups in the DRC. A confidential supplement from the U.N. panel of experts to the U.N. Security Council in 2003 stated direct transfers of funds were made from the Ugandan Office of the Presidency to support armed groups in Ituri and further claimed arms and military supplies were provided to these groups on a coordinated, institutional-basis.⁴⁵¹  In a move to continue to protect his allies, President Museveni wrote on August 26, 2004 to the U.N. Secretary General Kofi Annan requesting provisional immunity from prosecution for Ituri armed group leaders and the suspension of investigations by the International Criminal Court.⁴⁵²

Rwandan Investigations

Rwanda responded to both the October 2002 and October 2003 reports of the U.N. panel of experts which accused it of organized mass scale looting through a centralized apparatus in the armed forces known as the ‘Congo desk’.⁴⁵³ In its response to the October 2002 report, the Government of Rwanda said that the panel’s report lacked credibility and was “biased, subjective and not based on credible evidence.”⁴⁵⁴  In response to the final panel report a year later, the Rwandan Government objected to the panel’s methodology, suggesting it was being unfairly targeted calling the report a “deliberate effort to tarnish Rwanda’s image, while denying it the opportunity to defend itself.”⁴⁵⁵  In October 2003, Rwandan Foreign Minister Charles Murigande pledged that his government would set up a commission of inquiry under the Office of the Prosecutor General to investigate two cases of alleged illegal exploitation of DRC resources by Rwandan companies and individuals.”⁴⁵⁶  To date, there have been no results published of this inquiry.

Meanwhile, numerous witnesses and a confidential supplement to the U.N. panel of experts report stated Rwanda continued to help Lubanga’s UPC in Ituri with advice, military training and the delivery of ammunition.⁴⁵⁷  As described above, UPC combatants had control of gold mining areas from November 2002 until March 2003. The U.N. also reported that UPC elements went for training in Rwanda between September to December 2002, that senior UPC officers reported directly to Kigali and that Rwandan forces evacuated Lubanga from Ituri in March 2003 when UPC troops were losing ground to joint Ugandan and FNI troops in and around the gold mining areas.⁴⁵⁸ A former UPC spokesperson informed a Human Rights Watch researcher in February 2004, “It is not a secret that we were supported by the Rwandans,” adding, “everyone is interested in our gold.”⁴⁵⁹

DRC Government Response

In response to the U.N. panel of experts’ allegations, the Kabila government initially suspended a number of government ministers and advisors who were named as having been involved in the illegal exploitation. In 2003 Kabila ordered an internal review of the allegations against individuals.  The review carried out by Professor Akele after the U.N. panel of experts’ findings recommended criminal prosecutions but Human Rights Watch is not aware that the recommendations of this review were implemented. Many of the ministers initially suspended returned as government advisors.

The accords between the main Congolese rebel groups and the DRC government signed in Sun City in 2002 agreed to the creation of a special committee to review the legality of commercial mining contracts signed by all parties during the war and to ensure that contracts were beneficial to the DRC state.⁴⁶⁰ Chaired by Christophe Lutundula the committee was authorized to demand compensation from companies for state losses. Although slow in starting and initially blocked by Kabila’s own party in the national assembly, the committee took on an active role reviewing a number of contracts and over ruling some previous decisions.  In one case, a decision by President Kabila to cancel a contract with Canadian gold mining company Banro entered into by the RCD rebel group was reversed.⁴⁶¹ In another case, a shareholding obtained by a company in Katanga from the post-transition government was reduced.⁴⁶²   In September 2004, the committee received financial backing from the World Bank and logistical support from MONUC.  Its first report is due in early 2005 but the Chairman has expressed fear that “powerful and corrupt forces may succeed in shutting it down.”⁴⁶³

MONUC

In October 2004, the U.N. Security Council renewed the mandate of the U.N. peacekeeping force in DRC, MONUC, increasing its troops by 5,900 to a maximum of 16,700, though this number fell short of the 23,000 troops requested by the U.N. Secretary General.  The mandate of MONUC was strengthened giving the peacekeeping force authorisation to use force to deter threats to the peace process, to protect civilians under imminent threat of physical violence, and U.N. personnel, to support disarmament operations, to implement the arms embargo and to provide a secure environment for elections.⁴⁶⁴  There was however only passing reference to the issue of natural resources in the new mandate.  The U.N. Security Council categorically condemned the illegal exploitation and urged all states, including the DRC itself, to carry out investigations and other appropriate steps to end these activities. But it made no further reference to what it would do to cut the link between arms trafficking and resource exploitation, a link the panel itself drew attention to in its public reports and in a confidential supplement it sent to U.N. Security Council members in November 2003.⁴⁶⁵

Some MONUC personnel expressed frustration at the lack of capacity to deal with issues of economic exploitation. The mission has not integrated the link between resources and conflict into its political analysis, seen as an absolute minimum by many observers to understanding the political context.⁴⁶⁶ As a result there has been little follow-up to the findings of the U.N. panel of experts within MONUC and no action taken to monitor or tackle the link between conflict and control of natural resources which continue to take place in Ituri (see above) and other areas. 

MONUC peacekeepers on the streets of Bunia.  MONUC has a limited presence in the gold mining areas in Ituri, the site of widespread ethnic killings and human rights abuses. © 2004 Human Rights Watch

International Financial Institutions

Uganda is often cited as an economic success story in Africa, but there has been little scrutiny by international financial institutions (IFIs) regarding the role of its illegal exploitation of resources in the DRC in bolstering its economy. The U.N. panel of experts reported in 2001:

[T]he illegal exploitation of gold in the Democratic Republic of the Congo brought a significant improvement in the balance of payments of Uganda. This in turn gave multilateral donors, especially the IMF, which was monitoring the Ugandan treasury situation, more confidence in the Ugandan economy.⁴⁶⁷

This problem has not been publicly acknowledged by the IFIs. Thomas Dawson, the director of the External Relations Department in the International Monetary Fund (IMF), wrote in June 2002, “in recent years, the Ugandan government's economic policies have proven quite successful in containing inflation and promoting strong economic growth — the IMF has fully supported this program with advice and lending.” In a September 2003 review of Uganda’s performance under the Poverty Reduction Strategy Paper (PRSP) process, the IMF and World Bank praised the country for its export-led growth. Although the report raised concerns about human rights and the humanitarian situation in northern Uganda, it was silent on the country’s role in the DRC.

The IMF has illustrated in other countries that it can be a forceful proponent of transparency and accountability of government revenue but it has been inconsistent regarding transparency globally. It has been notably silent on Uganda’s role in the DRC despite significant evidence that government revenue is coming from the illegal exploitation of resources across the border.

The World Bank has also been moving towards a consistent approach on transparency. A two-year-long review by the World Bank assessing its role in the extractive industries has largely concluded that the bank should consistently address these issues by requiring audits and accurate public disclosure of revenues and expenditures. Despite such conclusions, it has not been forceful on promoting such an approach in Uganda, Rwanda or the DRC.  Should such an approach be followed, the public in resource-rich countries could have an opportunity to exercise oversight over government accounts.

Other bilateral donors have taken few steps to support initiatives to further investigate resource exploitation.  The U.K. Department for International Development (DfID) has been an exception funding some projects looking at resource management and corruption.  The U.K. has also promoted the Extractive Industry Transparency Initiative which seeks to increase transparency in transactions between governments and companies within the extractive industries sector.  The DRC government, however, is not a participant.

International Criminal Court

Justice is an essential element in rebuilding the DRC and ending impunity.  As the U.N. secretary general highlighted “[i]mpunity…can be an even more dangerous recipe for sliding back into conflict.”⁴⁶⁸   On June 23, 2004 Luis Moreno Ocampo, the prosecutor of the International Criminal Court (ICC) announced the beginning of the first-ever investigation by the prosecutor’s office into war crimes and crimes against humanity committed in the DRC.  Earlier in the year, the transitional government triggered the action by requesting the ICC prosecutor to investigate crimes in the Congo.  One of the priority areas for the ICC is to be Ituri.  The ICC prosecutor stated in September 2003 that crimes committed in Ituri appear to be directly linked to control of resource extraction sites and that “those who direct mining operations, sell diamonds or gold extracted in these conditions, launder the dirty money or provide weapons could also be authors of the crimes, even if they are based in other countries.”⁴⁶⁹  He added that his office would independently verify links between the killings and the exploitation of resources⁴⁷⁰, thereby providing a glimmer of hope that justice might be done for crimes committed in Mongbwalu and other similar resource rich areas in the DRC.