CONFLICT MINERALS AND CRIMES AGAINST HUMANITY IN THE DRC: HOW TO HOLD INDIVIDUAL CORPORATE OFFICERS CRIMINALLY LIABLE.

• Author: Mankowski, Emily
• Position: Democratic Republic of the Congo

INTRODUCTION

International criminal law is concerned with holding perpetrators responsible for the gravest crimes committed by humanity. The larger and more heinous the crime, however, the more complicated the prosecution. Identifying the relevant actors, producing sufficient evidence to impose liability, and bringing criminals to justice is a challenging endeavor. This complex process becomes even more daunting when factoring in complicit actors. This Note discusses the different legal mechanisms to hold individual corporate officers criminally liable for complicity in committing crimes against humanity and other human rights atrocities in the Democratic Republic of the Congo ("DRC") as a result of their participation in the conflict mineral trade. Part I provides an overview of the conflict in the DRC, where rebel groups have profited off the conflict mineral trade for over a decade, committing atrocious crimes against civilians in their wake, and then addresses how corporations have contributed to the ongoing violence. Next, Part II defines the elements of crimes against humanity and analyzes how the atrocities committed in the DRC satisfy them. Then, Part III addresses the three potential mechanisms of liability: accomplice liability, superior responsibility, and joint criminal enterprise: category three ("JCE III"), by looking at each mechanism's elements and any differences between the different international courts. Finally, Part IV applies each of these legal mechanisms to the actions of individual corporate officers in facilitating these crimes in the DRC by way of financing the conflict mineral trade and analyzes whether or not these actors could be liable for their actions.

Historical precedent supports holding individuals liable for international crimes, and therefore individual corporate officers, not the corporation itself, would consequently be liable. International criminal law imposes duties and liabilities on individuals as well as states. (1) In the Supreme Court case Ex Parte Quirin, (2) the defendants were charged with spying and sabotage during World War II. Chief Justice Stone, in his opinion for the Court, stated that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals." (3) International crimes are committed by men, not abstract entities, and this theory of "individual responsibility" harks back to the 1919 Treaty of Versailles. (4) Under international law, generally, "any person may be tried for the commission of an international crime." (5)

Holding corporate officers criminally liable for crimes against humanity can play an important role in compensating victims, punishing the actual perpetrators, and deterring other corporations from engaging in similarly criminal conduct. Criminal accountability for corporations and their officers when they are complicit in human rights abuses is a rare undertaking, but with regard to gross human rights abuses, like crimes against humanity, States have a duty to take measures consistent with international law to prevent corporations located within their jurisdictions from committing human rights abuses both within their territories and in others. (6) Not only do States have a duty to take measures, but international courts have duties to prosecute international crimes.

Corporations operating in war-torn countries, like the DRC, is not a new phenomenon. Businesses can maximize profits by purchasing raw materials from countries at cheap prices and at the expense of human rights abuses occurring in that State. (7) Some corporations have become increasingly aware of the effect that the conflict minerals trade has on propagating gross violations of human rights and have tried to clean up their supply chains. However, other corporations, despite becoming aware of their use of conflict minerals, have nevertheless refrained from taking steps to comply. Without any type of serious civil sanction or enforcement mechanism to force companies to stop using conflict minerals, international criminal law can fill the gap. This Note discusses the ways in which individual corporate officers could be criminally liable by indirectly contributing to crimes against humanity committed in the DRC.

1. BACKGROUND: HISTORY OF THE CONFLICT MINERAL TRADE IN THE DRC

   1. The DRC Conflict

      Before discussing the ways in which individual corporate officers could be liable for crimes against humanity, this Note must first describe the source of why these atrocities are occurring: the conflict minerals trade. Tin, tantalum, tungsten, and gold--the four most prominent conflict minerals--are used to make many consumer electronics, including cell phones and laptops. (8) In the mineral-rich eastern DRC, the extraction of these minerals has created an outburst of various human rights abuses, fueling the conflict between rebel groups and the Congolese army. (9)

      Conflict has long been a part of the DRC's history, beginning with the Belgian colonial era, (10) continuing after its independence in 1960, (11) and since the 1990s, when a deadly conflict erupted in the eastern DRC that was partly the result of hundreds of thousands of refugees fleeing the Rwandan genocide. (12) From the early 1990s, the conflict has not ceased; the DRC has been referred to as the home of the world's deadliest war since World War II, (13) and as the deadliest conflict in all of Africa's documented history. (14) Despite a peace treaty technically ending the civil war in 2002, (15) the human rights abuses continue to rage on. It is estimated that the conflict has led to the deaths of over five million people. (16) Furthermore, rebel groups, as well as the Congolese army, share responsibility in these deaths and atrocities committed, such as mass rape, systematic attacks on refugee camps, and enlistment of child soldiers. (17)

      Control over the conflict mineral mines in the eastern DRC has been a "key factor" to propagating violence in the region. (18) The international conflict mineral trade is a multimillion dollar industry. In 2008 alone, tin, tantalum, tungsten, and gold provided the armed groups with approximately $180 million in profits. (19) Both rebel groups and Congolese army commanders have controlled these mines, using the profits from smuggling the minerals in and out of the country and selling the minerals to refineries and smelters to finance the conflict. (20) In addition to the human rights abuses committed as a result of the conflict, the armed forces controlling the mines have also imposed "excruciating labor conditions" on the miners and child laborers, harsh enough to result in death. (21) Even though the DRC does not dominate the global production of tin, tungsten, tantalum, and gold, (22) the conflict mineral trade has had a disproportionate impact on the magnitude of the conflict.

   2. How Corporations Are Involved

      The minerals sourced from the DRC ultimately end up in a broad range of electronic devices, including medical devices, industrial tools, jewelry, cell phones, and laptops, produced by major electronic companies all over the world. (23) However, the supply chain tracing these minerals back to their sources involves a complicated process. For example, minerals are extracted from the DRC, then sold to trading houses and other intermediaries in the region, exported or smuggled to other countries with smelters to be melted, exported again in their refined form to be manufactured and assembled into the final products, when they are finally sold to international consumers. (24)

      United States companies, concentrated in a few sectors, are major consumers of the aforementioned minerals; however, U.S. regulations have significant ripple effects on the global supply chain. (25) For example, the Securities and Exchange Commission (SEC) estimates that its regulations will affect around 6000 U.S. and foreign companies. (26) One specific piece of legislation, section 1502 of the Dodd-Frank Act, amended the Securities Exchange Act of 1934 to address "the exploitation and trade of conflict minerals originating in the Democratic Republic of the Congo," which was financing "conflict characterized by extreme levels of violence in the eastern [DRC], particularly sexual- and gender-based violence, and contributing to an emergency humanitarian situation therein." (27) This provision, implemented in 2010, requires all publicly traded companies to exercise due diligence in tracing their supply chains and report to the SEC any existence of conflict minerals originating from the DRC or neighboring countries. (28) This provision does not explicitly ban or punish companies from using conflict minerals, but rather it is intended to "foster public action" against their use. (29) For some companies, including Apple, HP, Intel, and SanDisk, this provision has incentivized them to become "conflict-free" and remove all conflict minerals from their supply chains; (30) however, other companies have not submitted to public or governmental pressure to make such instrumental changes.

      To what extent can and should these companies, who have submitted reports to the SEC via the Dodd-Frank Act, but not made attempts to clean up their supply chains, be held liable? The SEC has stated that companies with conflict minerals in their supply chains have an obligation to disclose "the facilities used to produce the conflict minerals, the country of origin of the minerals and the efforts to determine the mine or location of origin." (31) Requiring companies to submit reports regarding their use of conflict minerals is a far cry from requiring companies to become conflict-free. In 2014, the first year that companies were required to submit reports, approximately twenty percent of companies reported their supply chains as...