Blood and Ore: Conflict Smartphones

By Sayomi Ariyawansa

This article part of Right Now’s February Issue, focusing on Technology and Human Rights.

By Sayomi Ariyawansa

We are never far away from our computers and smartphones. We have a voracious appetite for the newest and the greatest: we line up for hours, we hand over our money, and we do it all over again when the objects in our pockets and on our desks become – rapidly and inevitably – old and passé. Although some of us can recite the specs of our smartphones with relative ease, few of us really know what is behind their touch screens.

The mining and supply of minerals indispensable to our electronic devices are shrouded in exploitation, conflict and extreme violence. Those who try to follow the path of these minerals from below the earth’s surface to just underneath our fingertips face significant obstacles; the sheer scale of the problem makes an attempt at a solution foreboding. In the past few years, however, government and industry groups have taken steps towards better regulation, with a focus on improving transparency and traceability in the supply chain.

Our focus is the Democratic Republic of Congo (DRC). The DRC is one of several Central African countries rich in minerals that are key ingredients in the hardware of smartphones and other electronic devices: tantalite, tungsten, tin, copper and gold.

Though industrial mining is in the process of expanding throughout the DRC, mining typically occurs on a small-scale with miners who use hand-held tools, known as “artisanal mining”. Artisanal mining sites are dangerous. Miners work without protective clothing in shoddy mineshafts prone to collapse. As they depend on access to mine sites for their livelihoods, miners are often subject to exploitation at the hands of security guards and other self-styled “officials” who control these sites. An Amnesty International Report from 2013 notes that in each site, miners are required to abide by certain rules – such as selling their mined product to specific individuals or companies, or being banned from taking it offsite – under the threat of losing access to the site, beatings or spending up to several days locked in a container.

In 2013, CNN Freedom Project reported that 40 per cent of the two million people working in the DRC’s artisanal mines are children. World Vision interviewed 53 children who work in a copper mine in Kambove. 35 children reported experiencing frequent or persistent coughing and 46 children reported constant body pain in their back and arms. Mothers expressed concern for girls who work waist-deep in water where the minerals are washed, as they experience genital infections that their mothers attempt to treat with antibiotics. Ten children reported they had witnessed the death of another child on site, while almost half reported witnessing adults being injured or killed.

The fight for the spoils of mining these finite resources also fuels the extreme civil violence sweeping through the DRC.

After Belgium’s violent plunder of the DRC ended with its unceremonious departure, DRC has been the crucible of endless violent power struggles – culminating in what become known as the Great War of Africa in the late nineties. Although a transitional government came into power in the early 2000s, competing rebel groups refused to submit to centralised government control. A weak state has failed to control these groups and Ugandans, Rwandans and Burundians continue to sponsor militia in the DRC’s east. As the International Peace Information Service reports, the vast majority of mines in the DRC are controlled by these armed rebel groups – despite certain progress towards demilitarising mine sites in Katanga, in southern DRC.

Violence is rampant. In central and eastern Walikale the armed group Nduma Defense of Congo (NDC) competes with other armed groups for tin and gold mining. The International Peace Information Service reported that in September 2013, the NDC decapitated members from a competing group found at mining sites the NDC claimed as their own. Fighting between rebel groups in North Kivu resulted in the once-dominant Democratic Forces for the Liberation of Rwanda (a militia group of ethnic Hutus who oppose the influence of Tutsi in the region) re-occupying lost territory and thereafter launching reprisal attacks against civilian populations, described by the United Nations Final Report of the Group of Experts as a campaign of “killing, raping, looting and burning.” These attacks, and countless other similar campaigns in other mining locations, are characterised by their extreme brutality. The ferocity of these attacks – and particularly the savage rape of women, children and men – are aimed at asserting authority and control by destroying rival communities as thoroughly as possible.

The exploitation, abuse and violence surrounding the mining and supply of conflict minerals in the DRC have been the subject of activists’ attention since the early 2000s. Eventually, world leaders such as Hillary Clinton also called for the need to address these issues. To that end, there have been attempts to improve accountability within the electronics industry regarding the use of conflict minerals.

In August 2012, the United States Securities and Exchange Commission adopted the “Conflict Minerals Rule” requiring companies to publicly disclose their use of conflict minerals sourced from the DRC if those minerals are “necessary to the functionality or production of a product” the company manufactures. According to Global Witness in 2013, the passage of this reform generated “unprecedented momentum within DRC to reform the mineral sector” – indeed, the Congolese government passed a law requiring trading and mining companies to carry out due diligence to avoid sourcing conflict minerals.

Without demanding transparency and accountability, our demand for smartphones and electronic devices will continue to perpetuate harms unimaginable in their severity to the children, women and men of the DRC.

Nonetheless, the National Association of Manufacturers, Chamber of Commerce of the United States of America and the Business Roundtable issued a challenge against the Securities and Exchange Commission, arguing that the Conflict Minerals Rule was “arbitrary” and “capricious”, as well as unconstitutional. In July 2013, however, the Washington, DC District Court ruled in favour of the Securities and Exchange Commission – a decision Global Witness heralds as “a major victory for human rights and corporate accountability.”

The Conflict Minerals Rule is no panacea to the deeply complex circumstances surrounding the mining and supply of conflict minerals in the DRC. Compliance with the Conflict Minerals Rule does not mean the products manufactured by the company are conflict-free. The key requirement is that companies conduct a “reasonable country of origin inquiry” that is “performed in good faith”. This type of inquiry is impeded by a practice of secrecy – outlined by the Enough Project – amongst mineral traders, afraid of the implications of disclosing the origin of their wares, and the willingness of representatives from export companies to accept mere verbal assurances that their product is not sourced from a conflict area. However, if companies are required to provide documentation for their auditing requirements, there may be impetus for change: a recent report suggests that key electronic companies are achieving some progress in tracing their supply chains.

Similar disclosure requirements are not on the radar in Australia, despite the fact that over 200 Australian-based mining companies operate over 700 projects in Africa, with at least seven Australian-based firms active in the DRC – such as BHP Billiton, Rio Tinto, Anvil Mining and Waratah Resources. Dr Cullen, Winthrop Professor of Law at the University of Western Australia, stated that she doubts any Australian corporate regulatory body has the resources and capacity to enforce a comparable rule. She also pointed to the difference between the attitudes of multinational electronic companies (the focus of the Conflict Mineral Rule in the US) and Australian mining companies, who would be the focus of any similar rule contemplated in our jurisdiction. She suggests that as “consumer facing businesses”, electronic companies are more directly concerned with their reputation amongst the customers, unlike Australian mining companies.

Apple, for example, was considered one of the worst electronic companies in their response to conflict minerals. However in February 2013, Apple announced that it would require its suppliers to move their sourcing of minerals to certified conflict-free sources as smelters become certified. While Apple is certainly not a pioneer amongst electronic companies with respect to conflict minerals – Intel is committed to making a conflict-free microchip by 2013, and chairs a review committee for a key audit program – Apple has transitioned from merely characterising the issue as “very difficult”, with Steve Jobs saying “honestly there is no way for [suppliers] to be sure”, to following their competitors by taking corporate social responsibility more seriously.

Many advocates also caution that sourcing “conflict-free” minerals should not mean forgetting the DRC altogether. They argue that while instructing suppliers to buy minerals from elsewhere cuts off a source of funding to militia groups – it also cuts off a key source of income to a community.

To that end, attempts to create an ethical smartphone may be a step in the right direction. Fairphone was launched in London in September 2013 to acclaim, and was immediately inundated with orders. Largely considered the best option for an ethical smartphone, it would actually be more accurate to say it is the only known attempt to create one. Fairphone is a work in progress. The company simply does not have the partnerships to claim their phone is ethically-sourced –  they are only able to trace the supply chain of two of the twenty-eight minerals used in the production of the phone.

However, the founder of Fairphone states that their goal is to change the industry incrementally from within and to make it easier for other electronic companies to source their minerals ethically. If successful, Fairphone has enormous potential. While disclosure requirements can effect change by forcing electronic companies to focus on their supply chains, these disclosure requirements are of limited value unless there is also a push to build strong partnerships between all facets of the supply chain – between mining companies, trading houses, exporters, transit countries, refiners and, finally, electronics companies.

Simply put, without demanding transparency and accountability, our demand for smartphones and electronic devices will continue to perpetuate harms unimaginable in their severity to the children, women and men of the DRC.

Sayomi Ariyawansa is a Melbourne lawyer. She has volunteered with the Asylum Seeker Resource Centre, interned in the New York office of Human Rights First and previously worked in the Victorian Department of Justice. She is currently on the committee for the Global Ideas Forum 2014.