Conflict Minerals

Progress and Challenges on Conflict Minerals: Facts on Dodd-Frank 1502

 

Miners in Eastern Congo

Minerals and Conflict

Justine Masika Bihamba

"10 years ago, we were under de facto control of armed groups...today, let's admit we are a long way from that. And if we’re honest, that’s in part because of Dodd-Frank – it came to shine the light on those illicit actors. Today, despite the problems with governance, you can feel more government control.Justine Masika Bihamba, Coordinator of the organization Synergy of Women for Victims of Sexual Violence

Conflict minerals have fueled and continue to help sustain armed violence in eastern Democratic Republic of Congo (Congo), linking them to the deadliest conflict globally since World War II.The four conflict minerals (gold, along with the 3Ts - tin, tantalum, and tungsten) are not the only sources of income to armed groups, but they are some of the most lucrative. The illegal exploitation of natural resources today is a manifestation of the grand corruption linked to violence that has marked successive governments in Kinshasa and the broader region since colonial times.

  • The U.N. Group of Experts on Congo found in 2016 that gold provides the most significant financial benefit to armed groups”[1] and “is the most lucrative and easily smuggled of the natural resources in the eastern Democratic Republic of the Congo."[2] A study from the Enough Project found that armed groups made an estimated $185 million from conflict minerals in 2008.[3] In 2007 the Pole Institute noted “minerals are a major source of income and of conflict in North Kivu as in the whole of the DRC,”[4] 

  • A mortality study by the International Rescue Committee looking at conflict-related deaths between August 1998 and April 2007 estimated that more than 5.4 million people died as a result of armed conflict in Congo.[5] There has been continuing violence since that study, but no definitive follow up has been conducted on the mortality toll.

 

The Law

Dr. Denis Mukwege

"A conflict-free minerals industry would contribute to ending the unspeakable violence the people of Congo have endured for years.” Dr. Denis Mukwege, Founder and Medical Director of Panzi Hospital

Section 1502 on conflict minerals of the Dodd-Frank Wall Street Reform and Consumer Protection Act is a transparency measure, one part of a comprehensive approach to Congo’s challenges. Passed in 2010 and implemented by the U.S. Securities and Exchange Commission in 2012, it creates a reporting requirement for all companies publicly traded in the United States with products containing any of the four conflict minerals. This creates a lever to support transparency, security, and the rule of law in the mining sector. Companies must now publicly disclose annually whether any of the gold or 3Ts in their supply chains originated in Congo or a neighboring country and, if so, describe the due diligence measures taken to determine the source of the minerals. Dodd-Frank 1502 does not require companies to divest from Congo or source from conflict-free mines. The law only requires companies to report on their mineral sourcing and due diligence practices.

  • The cost of compliance has been significantly overestimated by industry lobbyists. Claigan, an independent environmental consulting firm with expertise in supply chain management, estimates the total cost of Dodd-Frank 1502 compliance was approximately $140 million for 2014.[6] This is a fraction of the U.S. Securities and Exchange Commission’s estimate of $3-4 billion for the first year.[7]​​

“In 2014, we educated suppliers who mistakenly believed that CFSP-compliant smelters are, by definition, not sourcing from the Covered Countries, or whose conflict minerals policies indicated that they intend not to source from the Covered Countries at all.” – EMC Corporation (Source: Conflict Minerals Report 2014)

Impact

Consistent with its objective, Dodd-Frank 1502 along with related reforms has led to significant improvements in the transparency of corporate supply chains and to a major reduction in the number of 3T conflict mines in eastern Congo. More than 70 percent of the world’s smelters for the four minerals have now passed conflict-free audits.  Before Dodd-Frank 1502, there was no certification mechanism for distinguishing conflict mines (i.e. mines controlled by armed groups or the Congolese army) from conflict-free mines, and there were no federal transparency requirements for companies on conflict minerals. The law and related reforms have changed these circumstances and created a two-tier market whereby the price for untraceable 3T conflict minerals is significantly lower than the price for verified conflict-free minerals. This price difference has made the trade in 3T minerals significantly less lucrative for armed groups.

 

PROGRESS

 

 

Number of conflict free mines: 204 (as of April 2016)

 

 

Number of refiners that have passed audits: 242 (as of December 5th, 2016)

 

  • As of 2016, the International Peace Information Service (IPIS) found that over three-quarters (79
    percent) of 3T miners surveyed in eastern Congo were working in mines where no armed group involvement has been reported.[8] This is a significant change given that the U.N. Group of Experts stated as recently as 2010 that “in the Kivu provinces, almost every mining deposit [was] controlled by a military group.”[9]
  • As of December 5th, 2016, 75 percent of smelters/refiners worldwide (242 out of 319 total) for the four conflict minerals have passed audits by the Conflict-Free Sourcing Initiative or associated programs, and an additional 24 smelters/refiners are participating in the program (i.e. are in the process of being audited) for a total of 266 participants (over 80 percent).[11]
  • There is now an emerging certification mechanism run by the International Conference on the Great Lakes Region (ICGLR), and mines have begun to be validated as conflict-free.[12] As of June 25, 2015, 141 mines in eastern Congo had been validated as conflict-free by multi-stakeholder teams made up of U.N. officials and Congolese civil society, business, and government representatives.[13]
  • In surveyed locations, “minerals that do not go through conflict-free programs sell for 30 to 60 percent less” than minerals verified as conflict-free,[14] thus reducing profits for armed group trying to sell conflict minerals.

 

"...Alcatel-Lucent does not want to prevent its suppliers from sourcing from legitimate mines located within the Democratic Republic of the Congo and its neighboring countries (as doing so could be detrimental to the legitimate economies and populations of those countries).” – Alcatel-Lucent (Source: Conflict Minerals Report 2013)

Mining Communities

Dodd-Frank 1502 must be fully implemented, not abandoned, and strengthened with livelihood projects and other support to mining communities.  As often occurs in places where black markets are disrupted by reform, Congo’s 3T mining sector is being affected by the transition to a conflict-free economy, and many miners have experienced livelihood challenges. The original conflict minerals draft legislation included resources for livelihood programs for mining communities, but unfortunately those provisions were omitted from the final law and thus resources were not forthcoming in a timely way, causing hardship for some communities. Some aid has been disbursed to support conflict-free mining, but more support for livelihoods projects is needed. The solution to uncovering and eliminating these harmful illicit markets is not to reduce transparency measures but rather to strengthen and expand them.

  • Livelihood projects should include alternative livelihoods programs and artisanal mining support. Project planning should involve concerted community consultations and decision-making, and projects should encompass microfinance programs, programs to increase women’s accessibility to mining and other livelihoods, and transition programs for child miners. Projects should also include aid for the formalization of artisanal mining—including the creation of artisanal mining zones, validation of more conflict-free mines, capacity building for mining cooperatives, provision of equipment, and development of safety standards for miners. [15]
  • Section 5 of the original “Conflict Minerals Trade Act” (introduced on Nov. 11, 2009) included provisions for livelihood support.[16] Since that time, the Enough Project has repeatedly called on the United Nations, the United States, and other governments to engage in a process of dialogue and reform in Congo that is broadly inclusive of Congolese civil society, business, and government representatives.[17]

Congolese Support

Archbishop Francois Rusengo

"Armed men have been free to exploit minerals away from any eyes. The formula for exploitation has been to attack civilians. To do that, they harm the women. When women are raped, the men are forced to flee, the children can’t survive, and the village is abandoned - then the area is free for exploitation.” Archbishop Francois Rusengo, Archbishop of Bukavu, South Kivu

Many Congolese communities and leaders—including Nobel Peace Prize nominee and Sakharov Prize winner Dr. Denis Mukwege, community activist Justine Masika Bihamba, and Archbishop François-Xavier Maroy Rusengo of Bukavu, South Kivu—support Dodd-Frank 1502. Leaders and activists support the law because they have seen direct positive impacts, because they believe in transparency and the rule of law, or both.

  • Dr. Denis Mukwege: "A conflict-free minerals industry would contribute to ending the unspeakable violence the people of Congo have endured for years. Government must not only enact strong legislation, they must be willing to enforce the law. Companies bear the responsibility of compliance and public disclosure, and acting transparently as consumers are increasingly aware of conflict-free components on the market. Tens of thousands of legitimate miners would benefit from a clean, transparent minerals industry…The mineral trade is one of the components that drive suffering in Congo.”[18]
  • Open letter signed by 31 Congolese civil society leaders, experts, and former ambassadors: “It is time for another broader push for reform on conflict minerals and natural resource governance in order to complement the Dodd-Frank legislation and deepen related minerals reforms. Dodd-Frank has been the primary driver of corporate and regional policy change on conflict minerals.”[19]

 


WATCH: Conflict Minerals Legislation - View from Eastern Congo

Congolese miners and human rights activists speak about the impact of Dodd-Frank in Congo in this video from 2012.

 

More Resources and Information

 


Citations

[1] U.N. Security Council, “Final report of the Group of Experts (2016),” S/2016/166, pg 2, May 23, 2016, available at;http://www.un.org/ga/search/view_doc.asp?symbol=S/2016/466..

[2] U.N. Security Council, “Final report of the Group of Experts (2016),” S/2016/166, para. 115, May 23, 2016, available at;http://www.un.org/ga/search/view_doc.asp?symbol=S/2016/466..

[3] The Enough Project Team and the Grassroots Reconciliation Group, “A Comprehensive Approach to Congo’s Conflict Minerals,” Appendix 2, p. 17 (Washington: April 2009), available at http://www.enoughproject.org/publications/comprehensive-approach-conflict-minerals-strategy-paper.

[4] Aloys Tegera and Dominic Johnson, “Rules for Sale: Formal and informal cross-border trade in Eastern DRC,” p. 40 (Goma: Pole Institute, May 2007), available at http://www.pole-institute.org/sites/default/files/regard19_anglais.pdf.

[5] Benjamin Coghlan, Pascal Ngoy, Flavien Mulumba, Colleen Hardy, Valerie Nkamgang Bemo, Tony Stewart, Jennifer Lewis, and Richard Brennan, “Mortality in the Democratic Republic of Congo: An ongoing crisis,” pp. ii, 16 (New York: International Rescue Committee, January 2008), available at http://www.rescue.org/sites/default/files/resource-file/2006-7_congoMortalitySurvey.pdf.

[6] Email correspondence with Claigan, August 2015.

[7] U.S. Securities and Exchange Commission, Release No. 34-67716, p. 302, August 22, 2012, available at http://www.sec.gov/rules/final/2012/34-67716.pdf.

[8] IPIS surveyed 2,026 mines. However, 64% of gold miners still work at conflict mines. “Analysis of the Interactive Map of artisanal mining areas in eastern DR Congo,” October 2016, available at http://ipisresearch.be/wp-content/uploads/2016/10/Analysis-and-map-artisanal-mining-DR-Congo_v005-1.pdf

[9] U.N. Security Council, “Interim report of the Group of Experts on the DRC,” S/2010/252, para. 77, p.17, May 24, 2010, available at http://www.un.org/ga/search/view_doc.asp?symbol=S/2010/252.

[10] Steven Spittaels, Ken Matthysen, Yannick Weyns, Filip Hilgert and Anna Bulzomi, “Analysis of the interactive map of artisanal mining areas in Eastern DR Congo: May 2014 update” (Antwerp: International Peace Information Service, May 2014), available at http://ipisresearch.be/wp-content/uploads/2014/04/20141031-Promines_analysis.pdf.

[11]  “Conflict-Free Smelter Program Indicators,” available at http://www.conflictfreesourcing.org/members/active-and-compliant-smelter-count/ (last accessed December 5, 2016).

[12] International Conference on the Great Lakes Region Mineral Certification Scheme, “ICGLR Regional Certification Mechanism (RCM) Certification Manual,” available at http://www.oecd.org/investment/mne/49111368.pdf (last accessed August 2015).

[13] Uwe Naeher and Yasmine Nzuma, “Summary of Joint Missions and CTC Mine Site Audits in Eastern DRC,” Federal Bureau of Geosciences and Natural Resources (BGR), Kinshasa, June 2015.

[14]  Fidel Bafilemba, Timo Mueller, and Sasha Lezhnev, “The Impact of Dodd-Frank and Conflict Minerals Reforms on Eastern Congo’s Conflict,” endnote 5, p. 20 (Washington: The Enough Project, June 2014), available at http://www.enoughproject.org/reports/impact-dodd-frank-and-conflict-minerals-reforms-eastern-congo’s-war.

[15] Fidel Bafilemba and Sasha Lezhnev, “Congo’s Conflict Gold Rush: Bringing gold into the legal trade in the Democratic Republic of Congo,” pp 15-17 (Washington: The Enough Project, April 2015), available at http://www.enoughproject.org/reports/congo%E2%80%99s-conflict-gold-rush; Holly Dranginis, “Doing Good, while Doing Well: Is There a Win-Win Formula for Investing Responsibly in Congo’s Minerals Sector?” pp. 5, 7 (Washington: The Enough Project, July 2014), available at http://www.enoughproject.org/reports/doing-good-while-doing-well.

[16] Conflict Minerals Trade Act, H.R.4128 111th Congress (2009-2010), section 5, “Sense of Congress on Assistance for Affected Communities and Sustainable Livelihoods,” available at https://www.congress.gov/bill/111th-congress/house-bill/4128/text?q=%7B%22search%22%3A%5B%22conflict+minerals+trade+act%22%5D%7D.

[17] The Enough Project Team and the Grassroots Reconciliation Group, “A Comprehensive Approach to Congo’s Conflict Minerals”; John Prendergast and Sasha Lezhnev, “Opinion: Electronics companies and consumers can help stop Congolese bloodshed,” San Jose Mercury News, July 28, 2009, available at http://www.mercurynews.com/opinion/ci_12931613; Enough Project, “Conflict Minerals: A Broader Push for Reform is Essential,” available at http://www.enoughproject.org/special-topics/conflict-minerals-broader-push-reform-essential.

[18] Panzi Foundation, “Statement from Dr. Denis Mukwege: EU Vote is a Victory for Human Rights,” May 20, 2015, available at http://www.panzifoundation.org/news/dr-mukwege-statement-eu-conflict-minerals-vote.

[19] “Open Letter: Conflict Minerals: A Broader Push for Reform is Essential,” October 30, 2014, available at http://www.enoughproject.org/files/OpenLetterConflictMinerals_October_2014.pdf.

Enough Project Responds with Serious Concerns about SEC Statements on Conflict Minerals

The Enough Project takes serious issue with recent statements by Securities and Exchange Commission (SEC) Acting Chairman Michael Piwowar and the SEC Division of Corporate Finance regarding the SEC's Conflict Minerals Rule. The statements are in strong contradiction to recent public comments submitted to the SEC and appear to be highly irregular.   Read More »

Enough Project Responds with Serious Concerns about SEC Statements on Conflict Minerals

Date: 
Apr 12, 2017

 

Sudden SEC statements contradict over 10,000 comments to the SEC by investors, the public, U.S. companies, and Congolese groups, which called on the SEC to maintain the conflict minerals rule   

The Enough Project takes serious issue with recent statements by Securities and Exchange Commission (SEC) Acting Chairman Michael Piwowar and the SEC Division of Corporate Finance regarding the SEC's Conflict Minerals Rule. The statements are in strong contradiction to recent public comments submitted to the SEC and appear to be highly irregular. 

On April 7th, Commissioner Piwowar cast doubt on his commitment to enforce the core reporting requirements in the SEC Conflict Minerals Rule, as part of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The SEC Corporate Finance Division then released a statement recommending non-enforcement of the requirement in the Rule for companies to report on their due diligence. Non-enforcement of this component would effectively nullify the value of the due diligence reporting requirement enshrined in the Rule.  

Sasha Lezhnev, Enough Project Associate Director of Policy, said: "One commissioner doesn't have the authority to change the conflict minerals law or regulation unilaterally. Companies are still legally required to file conflict minerals reports and disclose their due diligence, according to the law that Congress passed and the SEC rule that the courts upheld.  We look forward to reading companies' full conflict minerals reports in May."

The statement from the Corporate Finance Division, by its own admission, "does not express any legal conclusion on the rule." 

Brad Brooks-Rubin, Enough Project Policy Advisor, said: "We are concerned about the apparent attempt to gut the essence of conflict minerals due diligence without authority or cause. The goal of reports pursuant to Section 1502, and the focus of review by investors and the public, is to understand the specific steps companies have taken to address conflict minerals concerns. Specific labeling or description is not the essence of due diligence; meaningful and transparent action is." 

The goal of company reports to the SEC pursuant to Section 1502, and the focus of review by investors and the public, is to understand the specific steps companies have taken to address conflict minerals concerns. Specific labeling or description is not the essence of due diligence; meaningful and transparent action is. It is critical that companies report on their tracing and auditing in their supply chains, as this transparency is what changes incentives for minerals businesses and, in turn, armed groups at mines.

Holly Dranginis, Enough Project Senior Policy Analyst, said: "Several companies have been filing thorough, illuminating reports for three years without the descriptor requirement in place due to grace periods and pending litigation. In that short time we've seen major progress in service to Congress' original intent: a cleaner more transparent global minerals supply chain and more security in several of Congo's mining areas."  

Importantly, the SEC statements seem to have ignored the public comment period initiated by Commissioner Piwowar in 2017. Over the past two months, over 10,000 individuals have written to the SEC asking for the conflict minerals rule to be upheld for public interest. This includes letters from 111 Congolese civil society organizations based in Congo, who expressed in clear terms that suspension or weakening of the rule would cause more violence and incentivize armed groups to return to mines.  

The recent final decision from the court on the conflict minerals rule was clear and narrow. It invalidated one specific, severable component of the Conflict Minerals Rule -- the descriptor requirement -- and held that the rest of the Rule's requirements were not in violation of any laws. 

For media inquiries or interview requests, please contact: Greg Hittelman, Director of Communications, +1 310 717 0606gh@enoughproject.org.

About THE ENOUGH PROJECT
The Enough Project, an atrocity prevention research and policy non-profit organization, builds leverage for peace and human rights in Africa’s deadliest conflict zones by working to create real consequences for the perpetrators and facilitators of genocide and other mass atrocities. Enough, and its investigative partner The Sentry, aims to counter armed groups and violent kleptocratic regimes that are fueled by grand corruption, transnational crime and terror, and the pillaging and trafficking of ivory, gold, diamonds, conflict minerals, and other natural resources. Enough conducts field research in conflict zones, develops and advocates for policy recommendations, and mobilizes public campaigns. Learn more – and join us – at www.EnoughProject.org.

Enough Project Responds to SEC Commissioner Statement on Conflict Minerals Rule

Date: 
Apr 8, 2017

In response to SEC Commissioner Michael Piwowar's statement yesterday on the U.S. Conflict Minerals Rule, the Enough Project issued the following statements: 

Sasha Lezhnev, Enough Project Associate Director of Policy, said: "One commissioner doesn't have the authority to change the conflict minerals law or regulation unilaterally. Companies are still legally required to file conflict minerals reports and disclose their due diligence, according to the law that Congress passed and the SEC rule that the courts upheld.  We look forward to reading companies' full conflict minerals reports in May."

Brad Brooks-Rubin, Enough Project Policy Advisor, said: "We are concerned about the apparent attempt to gut the essence of conflict minerals due diligence without authority or cause. The goal of reports pursuant to Section 1502, and the focus of review by investors and the public, is to understand the specific steps companies have taken to address conflict minerals concerns. Specific labeling or description is not the essence of due diligence; meaningful and transparent action is."

For media inquiries or interview requests, please contact: Greg Hittelman, Director of Communications, +1 310 717 0606gh@enoughproject.org.

About THE ENOUGH PROJECT
The Enough Project, an atrocity prevention research and policy non-profit organization, builds leverage for 
peace and human rights in Africa’s deadliest conflict zones by working to create real consequences for the perpetrators and facilitators of genocide and other mass atrocities. Enough, and its investigative partner The Sentry, aims to counter armed groups and violent kleptocratic regimes that are fueled by grand corruption, transnational crime and terror, and the pillaging and trafficking of ivory, gold, diamonds, conflict minerals, and other natural resources. Enough conducts field research in conflict zones, develops and advocates for policy recommendations, and mobilizes public campaigns. Learn more – and join us – at www.EnoughProject.org.

11 Letters from Congolese Civil Society Groups in Support of the U.S. Conflict Minerals Law

In recent weeks, human rights groups and civil society members based in eastern Congo and the region issued 11 different letters in support of Dodd-Frank 1502, representing 111 organizations in total.  Read More »

Marking International Women's Day 2017

Like many around the globe, women across crisis zones in east and central Africa are subject to sexual and gender-based violence. In the Democratic Republic of Congo particularly, SGBV is a disturbing feature of the country’s decades-long conflict as it is continually used as a weapon of war. Today, on International Women’s Day, the Enough Project is highlighting the vulnerable security situation for the women in eastern Congo’s mining areas.  Read More »

U.S. Businesses, Investors Express Support for the Conflict Minerals Rule

In recent weeks, numerous American businesses have come out publicly in support of the Securities and Exchange Commission’s Conflict Minerals Rule, pursuant to Dodd-Frank Section 1502.  Read More »

Enough Project Comment to the SEC in Support of Conflict Minerals Rule Implementation

On January 31, Acting Chairman of the Securities and Exchange Commission (SEC) Michael Piwowar welcomed interested parties to submit comments in response to a statement calling into question the current Conflict Minerals Rule. The Enough Project has submitted a comment in response.  Read More »

U.S. News & World Report Op-ed: Keep Minerals Conflict-Free

It was not long ago that central Africa was mired in its "first world war" that led to 5.4 million deaths in the Democratic Republic of Congo. Slowly and painstakingly, conflict-affected areas have started to recover. But peace is fragile, and a reversion to widespread violence is never a far-off prospect.  Read More »

The De Facto Embargo is Over: Record-High Conflict-Free Minerals Exports from Eastern Congo

Tin ore

The conflict-free minerals trade has been slowly but steadily increasing in recent years, and 2016 resulted in record-high exports from the eastern Democratic Republic of Congo once again. The North Kivu province, the most 3T-rich minerals province in Congo, exported record-high conflict-free export numbers for both tin and tantalum in 2016. This counters the claims that Dodd-Frank 1502, often referred to as the conflict minerals law, is leading to a de facto embargo on eastern Congo’s minerals.  Read More »

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