Introduction

 

COSATU 10th National Congress adopted a resolution entitled, “the International Criminal Court (ICC), Global justice and the defence of human rights”, which is about the affirmation of human rights and justice on a global scale and defending the dignity of the human race. The issue of human rights at the international level has become so intimately interconnected with workers rights and business. Johann Hari writing in The Independent, which is a UK newspaper in October, 2008 said, “When we glance at the holocaust in Congo, with 5.4 million dead, reports screamed: this is a “tribal conflict” in “the heart of darkness”, it isn’t, he went on. He concluded by saying that the UN investigation found it was a war led by “armies of business” for control of the precious metals that make the 21st century society “zing and bling”. 

He then made a very clear statement towards the end when he said that, “the reality is that the militia in the DRC can only have a constant supply of guns and weapons from companies because we continue to buy the products which contain microchips. Perhaps it is time for the International Crimes Tribunal to begin to prosecute companies, not just individuals, forcing them to take responsibility for their impact on poverty stricken countries such as the DRC. And perhaps it is time to place a significant tax on all coltan and other rare-earth minerals. It might just provide the funds needed to finance a genuine UN peacekeeping commitment”

In a country commanding such massive, unique and precious natural resources, there is no excuse for such desperate levels of poverty. Infant mortality rate is over 81 deaths per 1000 live births (compared with Australia = 4.7), while GNP per capita is just a mere $300 a year – less than $1 a day.

Different sources, amongst them Amnesty International have identified three forms of corporate complicity;

•  Direct corporate complicity
•  Beneficial corporate complicity
•  Silent corporate complicity

According to a UN Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, the key findings can be summarised in the following way (directly extracted);

1. Illegal exploitation of the mineral and forest resources of the Democratic Republic of the Congo is taking place at an alarming rate. Two phases can be distinguished: mass-scale looting and the systematic and systemic exploitation of natural resources.

2.   Mass-scale looting. During this first phase, stockpiles of minerals, coffee, wood, livestock and money that were available in territories conquered by the armies of Burundi, Rwanda and Uganda were taken, and either transferred to those countries or exported to international markets by their forces and nationals.

3.   Systematic and systemic exploitation. Planning and organization were required for this phase. The systematic exploitation flourished because of the pre-existing structures developed during the conquest of power of the Alliance of Democratic Forces for the Liberation of Congo-Zaire. These pre-existing structures were improved over time and new networks for channelling extracted resources were put in place. However, the systemic exploitation used the existing systems of control established by Rwanda and Uganda. In both cases, exploitation was often carried out in violation of the sovereignty of the Democratic Republic of the Congo, the national legislation and sometimes international law, and it led to illicit activities. Key individual actors including top army commanders and businessmen on the one hand, and government structures on the other, have been the engines of this systematic and systemic exploitation.

4.     The consequence of illegal exploitation has been twofold: (a) massive availability of financial resources for the Rwandan Patriotic Army, and the individual enrichment of top Ugandan military commanders and civilians; (b) the emergence of illegal networks headed either by top military officers or businessmen. These two elements form the basis of the link between the exploitation of natural resources and the continuation of the conflict. Other contributing factors however exist — the roles played by some entities and institutions, and the opportunistic behaviour of some private companies and influential individuals, including some decision makers in the Democratic Republic of the Congo and Zimbabwe. Some leaders in the region bear a direct responsibility. The Panel concludes that tough measures must be taken to bring to an end the cycle of exploitation of the natural resources and the continuation of the conflict in the Democratic Republic of the Congo.

5.     The Panel’s recommendations revolve around six broad themes: (1) sanctions against countries and individuals involved in the illegal activities; (2) preventive measures to avoid a recurrence of the current situation; (3) reparations to the victims of the illegal exploitation of natural resources; (4) design of a framework for reconstruction; (5) improvement of international mechanisms and regulations governing some natural resources; and (6) security issues.

Finally, the report states that, “Zimbabwe has financed its involvement in the conflict in “two different ways: (a) by using the defence budget — the bulk of Zimbabwe’s military expenses seem to be covered by the regular budget; (b) by indirect financing of the war through direct payment by some Congolese entities, mainly companies. According to two very reliable sources, during the tenure of Billy Rautenbach money from Gecamines paid bonuses to the Zimbabwean soldiers. These payments might be linked to the contract between the Government and Ridgepoint. Indeed, part of the rights to exploit Gecamines mines was transferred to Ridgepoint without apparent compensation. According to some sources, the compensation, which is not mentioned in the contract, could be the sharing of profits between the Government of the Democratic Republic of the Congo and Ridgepoint, on the basis of 80 per cent for the Government and 20 per cent for Ridgepoint. According to some sources, curiously, Mr. Mpoyo, the Congolese minister, signed the contract as one of the officials of Ridgepoint rather than signing on behalf of the Government. Two months after the contract of Mr. Rautenbach as Director of Gecamines came to an end, discontent among Zimbabwean soldiers in Katanga over their lack of bonuses was reported”.

To illustrate the point about the different levels of complicity, an example of CONCO (Coca-cola Concentrates) in Swaziland could be cited. It is a company that is part of the Coca-Cola family from Atlanta in the US. It produces concentrates that are used to make soft drinks and it supplies almost the whole Southern Africa, including parts of the world outside the region, such as Asia. However, this company, which is deeply ingrained in the corrupt tinkhundla system has had a deep and long relationship with the ruling system in Swaziland. Interestingly around the late 90s the company was already enjoying special benefits and treatment from the system as it was, by then, paying only about 15% Corporate tax, whilst a discussion was raging around the reduction of corporate tax from the 40% to around 30-25%. In this regard, it proved itself to be in the beneficial corporate complicity category. It still is feeding from the benefits accruing out of the corrupt and oppressive system in Swaziland.

These two examples from Swaziland and Zimbabwe are but a small part of the webs of companies and networks that benefit from, support, reinforce the suffering of people for their own selfish narrow material and financial gains.

 

Business drives governments and governments facilitates business profitability at a serious human rights cost

One of the key battles in US courts these days have related to the interpretation of what complicity entails. At first, a US ninth circuit court held that a company’s mere knowledge and “substantial contribution” were enough to establish complicity. However, a new ruling by the US court of appeals for the second circuit court ordered that, for a company to be considered complicit, the firm’s support would have to be “purposeful”, meaning that there is need for clear proof that the company had a clear intention to harm citizens, which is almost never possible as harm is never made clear, but in the act is found harm against the people. Under the US alien tort Statute, which is a law that allows non-American citizens to initiate lawsuits in US courts for alleged human rights violations abroad, various cases are under contention, including the South African case against companies that propped up apartheid rule.

The questions as correctly asked by Irene Khan, the Secretary General of Amnesty International in March, 2006 are, “What happens when the company itself does not commit an abuse but benefits from an abuse committed by a government or armed group? Or funds those who commit abuses? Or remain silent in the face of abuse? Or complies with national laws and policies which are clearly in violation of international human rights?”.

According to defence sources, in 2003 alone, G8 countries exported major conventional weapons worth in excess of US $24 billion. Whilst some of these exports were to other G8 countries or developed countries, the majority were to the developing world. Its obvious that all money spent on missile launchers, for instance, means the poor are denied of; health, education and poverty eradication possibilities. In 2001, the British government approved the sale of military air traffic control system manufactured by BAE systems to Tanzania. The system cost $40 million, yet half of the population of Tanzania lacks access to clean water. Britains’s defence export services (DESO) maintains offices around the world to help sell arms to countries that can ill afford them, most of who have terribly poor human rights record. But its principal duty anyway, is to ensure a sustained and constantly expanding market for the British arms industry and this can only be generated by creating demand for arms, which includes generating tensions between states, the example of India and Pakistan being the most immediate.

In the US, the arms industry enjoys tax breaks, low-cost loans, export credit guarantees, research and development costs paid for by the taxpayer and military aid to developing (mostly oppressive and surrogate) countries to buy US weapons.

The Italian state actually owns a 32% shares in Thales. Most Russian arms exports are made through Rosoboronexport, the Russian state arms exporter. In 2005, then German Chancellor Schroder took a six day trip to the Middle east (where we are told the EU is also a peace mediator) with arms company executives, specifically to sell German defence products. For G8 leaders, this is normal business, after which they assemble in Brussels to demand human rights observance by these countries.

Danish Major General and force commander of MINURSO from 2005-2007 stated it clearly when he said that he believes that “commercial thinking and classic realpolitik” are the major reasons why a solution on Western Sahara has never been arrived at. It is openly acknowledged that foreign companies are and have always played an important role in the occupation and conflict in Western Sahara. More than just enriching those who own them, mostly in western countries (as they milk the wealth of the Saharawi people), they also provide jobs and income for the settlers of Morocco, which is the occupying power. It is estimated that about 120 000 Moroccan fishermen now live along the coast of Western Sahara focussing on the fishing industry. Norwegian companies are said to play an active part in that area, as one of them, the Sjovikgruppen has both fishing licences and on-shore processing facilities. In addition, Norwegian shipping companies transport fish and phosphate to the international market. Morocco’s illegal export of phosphate brings in an income of around one billion kroner every year, the sources indicate. In this way, these companies fuel the conflict and occupation of Western Sahara.

 

The following factors are key to understanding the symbiotic relationship between human rights violations and business

Most conflicts and wars are about access, control and trade of key mineral resources, such as; coltan, diamonds, copper, cobalt and gold. In this regard, a combination of ruthless multinational corporations, local elites or surrogate forces and governments combine in an effort to subjugate the people and loot their resources.

These pose a serious security threat to the affected peoples. In this regard, the ruthless exploitation of the natural resources by foreign armies and their local friends has become systematic. This involves plunder, looting and racketeering by syndicates and criminal cartels. These syndicates are part of a global network with connections all over the world.

Multinational corporations are critical to the fuelling, funding and guaranteeing markets for the loot, hence their interest and benefit in the perpetuation of the war and suffering. This also increase the rate of the exploitation of the natural resources of these countries.

The global donor community, which is in many instances tied to or related to these companies and western governments, who also act in the interest of these companies, send confusing signals or play double standards. Most of these wars offer lucrative material benefits for the individuals involved, hence the tendency by some military commanders and generals to tie their personal interests to the continuation of these wars, particularly as most wars have the capacity to fund themselves through the massive looting involved.

Finally, in most of these wars, the elites and their multinational backers always have something to gain for themselves, as they have webs and networks of dealings that benefit them. The only losers are the poor people in these countries.

In the case of the DRC, the UN has listed about 100 companies involved in the looting from different countries in the world. The Niger delta example in Nigeria is one other example of how multinational corporations can loot the wealth, destroy the environment and subject the people as a whole and workers in particular, to the most vicious forms of slavery, impoverishment and systematic abuse. With such massive oil outputs in that region, the terrifying levels of poverty are a stark contrast and point to the relationship between existing, but unavailable wealth on the one hand, and the existing and naked poverty on the other.

Here at home in South Africa, the land of gold, we have so much to tell about the gold that never was. It built the skyscrapers of London, New York and Paris, as apartheid facilitated the official looting of these with the resultant massive suffering and deaths of workers in the mines and farms. The TRC has documented all these very well, in particular with such companies as Bhp billiton, Aglo American, De Beers and others which ruthlessly and savagely exploited mineworkers for years and have refused to take responsibility for their acts. They continue to subject communities to hazardous environmental risks.

In 1996,a group of Burmese residents filed a lawsuit against Unocal in US federal court.  They indicated that they had suffered human rights abuses such as forced labour, murder, rape and torture at the hands of the Burmese military during construction of a gas pipeline, and that Unocal company was complicit in these abuses.  Unocal and Burma’s military government were in a consortium for the pipeline’s construction.  The parties reached an out-of-court settlement in which Unocal agreed to compensate the plaintiffs and provide funds for programmes in Burma to improve living conditions and protect the rights of people from the pipeline region (the exact terms of the settlement are confidential).  This settlement was accepted by the court, and the case was closed on 13 April 2005.

 

Some initiatives and possible instruments of resort in the struggle for workers rights against business (MNCs)

The fact of the matter is that in all these violations, even in cases where workers are not explicitly mentioned, they are inevitably on the extreme receiving end of the viciousness of these acts. In most instances, they are casuals with no job security and benefits, sometimes they are semi-legal without clear employment and bargaining processes and at times, they are caught in wars between different warring factions and groupings where the luxury of human and worker rights are non-existent or a distant reality. 

However, there are various instruments meant to enforce global accountability of companies and ensure they promote and protect human rights in their own operations. Undisputably, these are in many instances merely paper commitments and sometimes even on paper fall very much short of addressing the real extent of the violation. Amongst these are the following

• The Kimberly Process, which is an initiative of co-operation between governments, industry and civil society organisations to deal with the flow of conflict diamonds regarding their flow and illicit trade in these precious gems, which has fuelled years of devastating conflicts in Angola, DRC, Sierra Leone and Ivory Coast. The Kimberly Process Certification Scheme (KPCS) set wide ranging and strict requirements on its members to ensure they certify shipments of rough diamonds as “conflict-free”. By November last year, it had 49 members, representing 75 countries, with the EU and its member states as part.

• The Global Compact is a strategic initiative for businesses that are said to be committed to ensuring that their operations and strategies are in line with universally accepted norms and standards of human rights, labour, environment and anti-corruption. It has an annual mandatory reporting system and sometimes delists companies that do not fulfil this obligation. According to the famous principle two of the Global compact, business should make sure they are not complicit in human rights abuses. This further imposes the obligation to promote them.

• Global Framework Agreements (GFA), which are agreements reached between a multinational company and a global union federation to protect workers wherever that company operates in the world and apply relatively similar standards and working conditions.

• Extractive Industries Transparency Initiative (EITI), which is an initiative meant to ensure transparency between governments and companies in all transactions they do, specifically in the extractive industries sector.

• The ILO as an instrument of dialogue for global social partners, which has over the years developed a series of conventions meant to protect workers from the extremes and vagaries of the market, governments and other potential forces of whatever kind.

In this regard, if we are serious about ending such wars and acts of savagery we must target all involved, particularly those who finance and support such activities and not just the foot-soldiers. You can and should arrest Jean Pierrie Bemba and Laurent Nkunda in the DRC, you can arrest Foday Sankor of the RUF in Sierra Leone, you can arrest Omar Al Bashir in Sudan, but without targeting the real beneficiaries, the companies that plunder the natural resources, that exploit the workers, that destroy the environment and that create and sustain the markets for the products of blood, then the solution will not be reached. The war will not end, so is the suffering of the people.

The initiatives above are just but a very moderate attempt, but they are nowhere near dealing with the root cause of the problem, instead they sometimes avoid the real problem and play into the public relations mantra of diverting the real issues and covering for the real culprits. This is coupled with the selective morality of the ICC and global justice in general. Why is there no one being arrested for the daily murder and suffering of the Palestinian people who are subjected to the most barbaric forms of exploitation, oppression and war. The Goldstone report has clearly indicated that Israel must face war crimes, but the US (self-appointed champion of democracy) has made it clear, it will ensure that such never happens, yet they have the guts to call for the arrest and prosecution of others elsewhere. We must expose these double standards.