Crushed by an Anvil: A Case Study on Responsibility for Human Rights in the Extractive Sector

Article excerpt

In October 2004, Congolese troops conducted violent reprisals for a minor uprising in the small town of Kilwa, engaging in summary executions, rape, torture, pillaging, and other human rights atrocities. Allegations that a multinational corporation, Anvil Mining, provided logistical assistance for the military's actions led to calls for the company and its employees to face legal responsibility. This article examines the deployment of the multitude of legal and quasi-legal accountability mechanisms available in the Anvil case, including civil and criminal avenues in the home and host states, the application of international criminal law and the use of international "soft law" mechanisms. In examining the way those avenues were used in the Anvil case, this article attempts to illustrate the practical relationship between the multiple avenues theoretically available for imposing human rights accountability on multinational corporations, including a consideration of non-legal factors affecting decisions on whether and how to assert jurisdiction within a given avenue. It concludes that the incoherence of a fragmented, ad hoc system, and the central importance of political will in invoking a given avenue, present serious problems for the effective enforcement of human rights responsibility for multinational corporations.

I. INTRODUCTION

This is a story of mass killings, summary executions, rape, torture and pillaging. It is a story about the relationship between foreign investors and repressive regimes. Most of all, it is the story of the gaps that emerge in legal accountability when there are many jurisdictions that can exercise control over a case, but just as many excuses for authorities to defer to someone else. This article takes one episode of human rights atrocities in the Democratic Republic of the Congo, in which a multinational mining company, Anvil Mining, allegedly provided assistance, and uses that episode as a case study to examine how these different jurisdictional options are deployed in practice.

In any study of the human rights responsibility of multinational enterprises, examples from the extractive sector of both human rights abuses and attempts at regulation and oversight will abound, due to the convergence of a number of factors. The substantial infrastructure and exploration investments required for oil, gas, and mining ventures often mean that exploitation of resources in developing countries cannot proceed without the involvement of foreign enterprises. For many developing countries, the extractive operations conducted by multinational firms are a vital source of revenue, giving the local authorities a vested interest in protecting those operations, whether from protesters, pilferers, uncooperative landholders or insurgents. Many extractive operations are conducted in conflict zones or areas of political instability, given that the option of moving to a more stable operating environment is simply not available when the targeted resources remain firmly in the ground. Situations of conflict can in fact be exacerbated by the presence of lucrative extractive industries, as competing factions strive to control rents from the operation to fund their own struggles. (1)

Multinational extractive enterprises can and do make a positive contribution to human rights, particularly through the provision of employment and livelihood for local communities, with all the associated benefits for economic and social rights that such prosperity brings. Extractive industries also sometimes contribute to human rights through the provision of infrastructure and other social programs in the local community. (2) However, involvement in human rights abuses is also well documented. This can include direct human rights violations by the corporations concerned. Perhaps the most common form of serious human rights violation in the course of multinational extractive industries, however, is the use of violence, including killing, rape, forced labor, forced evictions, and torture, at the hands of security forces, at the behest of, for the benefit of, or with the assistance of the extractive enterprise. …