Quote of the Day

One more thing Apple is responsible for:

"If you go to Europe, politicians don't matter. The people making the decisions in Europe are bankers. The technicians of finance are making the decisions there. It has very little to do with democracy or the will of the people. And we are hostage to that because we like our iPhones."

                                                       --Jonathan Franzen

Quote of the Day

On Wednesday night, Gaithersburg, Maryland became the epicenter of the grassroots movement to end the conflict in eastern Democratic Republic of the Congo.

                                                  --The Enough Project

Rosenblum's Cant and Stearns' Guild

A few weeks ago, a friend sent me a link to Peter Rosenblum’s latest broadside, a letter he addressed to the SEC excoriating my New York Times’ op-ed. The note she attached to the link said, “What did you do, run over his dog?!”

Now that I’ve read the letter, I can understand the impetus behind her question. It’s an odd piece of writing for a law professor to dispatch to a body like the SEC, and not just because it contains a startling number of grammatical errors (see over the fold for the [sic]s).  In it, Rosenblum argues that the evidence I provide of the harm caused by the law is impressionistic and selective.  He has heard “similar claims over the course of more than 20 years,” he tells the SEC, and he assures them that my comments provide no basis on which to judge even the short-term impacts of the law. 

I wasn't surprised that Rosenblum would take issue with my op-ed. He thought highly enough of the conflict minerals campaign to have issued a press release commending it back in March. But I am a little surprised at how he's gone about it. In fact, this letter to the SEC is the third time Rosenblum has taken to keyboard in opposition to the editorial. After it appeared, he published a letter in the New York Times stating that while DF-1502 wouldn’t solve the problem, it did constitute a small but vital step in the right direction. My claim that it was hurting the very people it was meant to help was "impressionistic," he wrote--there's that word again--and and my assertion that the Chinese would eventually step in to pick up the slack in the mineral trade was “vague.”

He next left a comment on Stearns’ blog suggesting that I had become mentally incapacitated during my trip to the Congo. I wish I were speaking hyperbolically, but here--judge for yourself: “Many of us have struggled during field research, when the most recent grievance overwhelms all others. It makes sense for the people we encounter, but long-time Congo watchers presumably have a sense of context. David Aronson seems to have lost all perspective.”

After he published those notes, but before I’d seen his letter to the SEC, I sent Rosenblum an email pointing out that we had met on several occasions, including in Kinshasa in 1997, and I told him that I hoped we’d have the chance to debate the issue more thoughtfully. As I wrote on my blog, “I know Peter. I respect Peter. He seems to have responded more to the editor-chosen title of my op-ed than to anything I wrote. I hope he'll provide a more thoughtful critique in the future.” A couple of weeks later, I was delighted when the New York Bar Association invited us, quite out of the blue, to have that very debate at their headquarters in Manhattan. Unfortunately, Rosenblum backed out at the last moment, citing prior commitments, and the debate went ahead without him. I then invited him to elaborate on his criticism here, in my blog; I even promised to let him have the last word. Rosenblum failed to respond to that invitation or to several follow-up emails and telephone calls. (See after the fold for the sequence.) It’s because of his silence that I am writing now.

Part of the difficulty of responding to Rosenblum's criticism is that its intensity isn't matched by a corresponding clarity. For example, his main criticism is that the evidence I provide is "impressionistic." But it's not clear precisely what he means by that. I assume that he means that it's sufficiently uninformed and selective as to be unreliable. But I'm left wondering why he would think that to be the case, and what evidence he has that contradicts mine. I reported what I saw and heard over the course of four weeks, visits to seven mining sites, and discussions with dozens of Congolese stakeholders and experts. What, precisely, does Rosenblum think I got wrong? The advocates themselves have stipulated that the law--or more precisely, the resulting embargo--caused a precipitous drop in mineral exports. What does Rosenblum think happened to the million or so people in the region who depended on that trade for their livelihood? What does he think of the increasing number of journalists and human rights groups who have corroborated my reporting, such as the Economist, Reuters, the UN Group of Experts, and  tk? And what does he think of the many Congolese who have testified to the law's deleterious consequences? If he has ideas on the subject, he doesn't say.[1]

Unfortunately, labeling my piece "impressionistic" is about as substantive as Rosenblum gets. His letter to the SEC, for example, reiterates the "impressionistic" criticism in half a paragraph; the rest of the letter is concerned with setting forth his own credentials as an expert on the country. Indeed, the letter makes it sound like Rosenblum believes the SEC ought to believe him because of his impressive-sounding credentials--even in the absence of any argument!  If I didn't know him, I'd think this the work of a crank, albeit of the tufted, tenured variety. But I do know Rosenblum, and I know that he is capable of writing concise and effective take-downs; see here for an example [link tk]. Blithely asserting that I’ve lost my marbles, or that I’m not as credentialed as he is, doesn’t do much to advance the substance or the tenor of the debate.

I happened to mention these frustrations to the friend who originally sent me the link to Rosenblum’s SEC letter. She told me I needn’t be too concerned: “You’ve reduced an Ivy League law professor to several iterations of name calling and rank pulling. Now, apparently, you've forced him to retreat into an embarrassed silence. It’s not you who has anything to worry about.”

In the meantime, Stearns seems to be pulling back on his initial criticism of my piece. In a Wall Street Journal book review, he admits that the law has put tens of thousands of people out of work. He has also refused opportunities to defend his own account of how the law might work. You’ll remember that he suggested that the main mineral exporters, the comptoir owners, threatened by the loss of income, would pressure the central government to provide better security throughout the region. I doubted from the outset that comptoir owners had that kind of pull and wondered, if they did, why they hadn't used that power to put an end to the conflicts a long time earlier. I haven't seen Stearns make any subsequent defense of his argument, but I haven't heard him repudiate it either.

Stearns is a generally reliable guy, thorough and accurate. But I’ve reluctantly called him out once or twice in the past for fence sitting. Back in 2003, he wrote a piece for the International Crisis Group in which he alternately called the continued presence of the FDLR/ex-genocidaires in the Kivus a “pretext” and the “explanation” for Rwanda’s incursions into the Congo. "Well, which is it?" I wrote to him. If it’s the former, we need to pressure Rwanda to back off. If the latter, we need to work harder on repatriating the FDLR. Surely an analysis of how Rwanda has behaved inside the Congo will go far toward telling us where the truth lies. My own reading is that the FDLR’s presence is largely pretextual, and that Rwanda’s main business in Congo since 1999 has been plunder on the one hand and territorial control on the other. Or so memory serves me of that conversation: I no longer have access to the email account in which it transpired.

And if memory serves, I wasn’t able to elicit much of a response from Stearns then, either, except for a retreat into vagueness. Look, I respect Stearns enough to believe he isn’t fence sitting to retain his viability on the issues, but there are times, too, that I want to remind him of what Dante thought of neutrality.

[1] It's a little hard to divine, but at one or two points Rosenblum appears to suggest that my informants can't be speaking accurately or truthfully about the law's impacts because he has heard Congolese voice similar complaints about their lives in other contexts. It's true that Congolese have complained, for a very long time, about their inability to pay school fees, afford health care, and even buy food. But does the fact that Congolese are desperately poor--and have been for ages--mean that the miners haven't been impacted by the mining embargo? Would Rosenblum have been more convinced if they'd come up with different, and more original sounding complaints? It's a silly question, I know, but I'm grasping at straws: I really don't understand what Rosenblum is getting at, otherwise.

Plus ça change

A New Yorker cartoon originally published in 1997.

The UN on the SEC

In sharp contrast to Enough, Global Witness, and ICAR, the latest Group of Experts Report proposes that companies be allowed in certain cases to avoid having to describe a product as either conflict-free or not:

United States Securities and Exchange Commission

(bb) The Securities and Exchange Commission of the United States should make reference, in the implementing rules of the Dodd-Frank Act, to the due diligence recommendations of OECD and the Group as reliable due diligence processes for meeting relevant aspects of the reporting requirements set out in section 1502 of the Act. As a time-bound measure, “issuers” should describe a product as neither “DRC conflict free” nor “not DRC conflict free” when the issuer and the mineral processor have:
(i) Taken reasonable steps and made good-faith efforts to conduct due diligence;
(ii) Know and can show that they have identified, assessed and responded to risks in accordance with the risk management strategies recommended by the due diligence recommendations of OECD and the Group;
(cc) Where risks of direct or indirect support for public or private security forces are identified, and issuers and mineral processors decide to continue to trade, they must demonstrate significant measurable improvement within six months and have their due diligence practices audited by an independent third party. If, within six months of the adoption of the risk management plan, there is no significant, measurable improvement, issuers and mineral processors should discontinue their engagement or suspend their relationship with the supplier for a minimum of three months.

By contrast, this is what the International Corporate Accountability Roundtable wrote to the SEC about this matter:

Specifically, companies should not be allowed to report that the minerals in their products are of indeterminate origin; rather, if companies fail to determine the origin of the minerals in their products, they must describe them as “Not DRC-Conflict Free” in their Conflict Minerals report.

The International Corporate Accountability Roundtable (“ICAR”) is a coalition of human rights groups including Amnesty International, EarthRights International, Global Witness, Human Rights First, and Human Rights Watch.

Reuters Joins Gang of Warlords & Lobbyists

The UN just released its latest Group of Experts report on the DRC. The news agency Reuters, clearly in the pay of Bosco Ntaganda (or the US Chamber of Commerce), reports on it thusly:

Conflict minerals crackdown backfiring in Congo—UN
By Jonny Hogg and Graham Holliday
KINSHASA, Dec 30 (Reuters) - A U.S. crackdown on so-called "conflict minerals" in eastern Democratic Republic of Congo has backfired by pushing trade deeper into the hands of criminals and smugglers, including at least one former rebel leader, a U.N. report said on Friday.

The new UN report, available here, goes into considerable detail on a variety of topics, from an update on the region's armed groups to summaries of harebrained attempts at gold smuggling to an analysis of the impact of SEC 1502 on militia participation at several important mines in north and south Kivu. One thing it doesn't do is what I've been calling for: undertake a thorough assessment of the impact the de facto embargo is having on the miners and their families. Still, the report is worth reading in depth. As most of these UN reports have been, it is well-written and impressively detailed—even the annexes are worth perusing.

I'll have more to say once I finish reading it.

Bisie: A Reality Check

One of the most repeated criticisms of my NY Times piece about conflict minerals is that in my zeal to make the case against Dodd Frank I ignored the many positive developments that were happening on the ground as a result of it. Principal among those developments was said to be the de-militarization of Bisie, the largest tin mine in the Kivus.

A miner shows a handful of the hash favored
 by the pit and tunnel miners at Bisie.  

Below I cite three instances of advocates making that argument, but there have been many more. Advocates have advanced the claim that Bisie has been demilitarized not only in writing but in conference after conference and to numerous journalists, diplomats, and policymakers. In fact, I can't think of another development they have cited nearly as often as this one to demonstrate the legislation's achievements.

• However, we have already seen a number of changes in the minerals sector, which can, in part or in whole, be attributed to the impending arrival of DoddFrank, or rather DoddFrank in its full form. Those include some very positive impacts. For the first time in five years, the Congolese Government has removed national army units from the region’s most important mine, which is called Bisie in Walikale in North Kivu, which accounts for around 70% of the tin ore production from the province. That is pretty unprecedented in terms of the history of this conflict. Mike Davis, Global Witness, House of Commons, Tuesday 13 September 2011, Oral Evidence Taken Before The International Development Committee Inquiry Into Working Effectively In Fragile And Conflict Affected States: DRC, Rwanda And Burundi 

• International pressure generated by the Dodd Frank Act and UN and OECD initiatives has already persuaded the Congolese government to remove army units that were illegally occupying key mining areas. The most important example is the withdrawal of troops from the region’s largest tin mine, Bisie, which accounts for 70% of the tin ore produced in North Kivu Province. This paves the way for the establishment of a conflict free mineral trade that meets international due diligence standards and can foster peaceful economic development in the region.     Global Witness, Unsigned. August 10th, 2011. "The Dodd-Frank Act – recent developments and the case for urgent action." 

• Since the legislation passed, it has had a direct impact on armed commanders. Our team travels frequently to Congo, and we have seen first-hand how the Congolese army has pulled out of several major mines. For example, the Bisie mine produces some 70 percent of North Kivu's tin ore and was occupied illegally by a renegade unit of the Congolese army for years, but was demilitarized this year. Whether this demilitarization lasts is dependent on further reform, but it is starting to occur at Bisie and several other mines.     Sasha Lezhnev, The Enough Project, on Aug 09, 2011     "What Conflict Minerals Legislation Is Actually Accomplishing in Congo"

Given that Bisie was the advocates' primary example of success, it is worth checking in with some researchers who have actually visited the mine recently. IPIS and Fatal Transactions are well-known for their thorough mapping reports of the conflicts in the Congo. No one would call them stooges for the Chamber of Commerce. Recently, a couple of their researchers visited Bisie. This is what they had to say:

Much has happened in the mining sector of Eastern DRC over the last year. President Kabila imposed a ban on all mining activities last fall, during which production fell considerably. As soon as the suspension was lifted in the spring of this year, the major global electronic companies stopped buying minerals from the region, provoking a de facto embargo on Congo’s minerals with detrimental effects on the sector. At the same time, the Congolese government has taken major steps to restructure its army in the east of the country. These different decisions in the mining and security sectors have affected the nature and volume of minerals production and export and have reconfigured the security situation in the region. The consequences of these actions are discussed and illustrated with the use of the most important and well-known cassiterite mine in North Kivu called Bisie.

Bisie shows first that production fell significantly during the ban, but mining activities unquestionably continued, as satellite imagery indicates. Second, despite the ban’s focus on ending the involvement of military and civil authorities in the illicit exploitation and trade of minerals, certain military units strengthened their grip. Third, while the regular army withdrew from many mining sites as a result of military restructuring, armed groups sometimes filled the void, increasing widespread insecurity. Fourth, the de facto embargo has decreased the potential profit for armed groups and corrupt military units, but it has also left many miners unemployed, increased smuggling, and undermined the continuation of important government and industry-led due diligence initiatives.
Sarah Zingg Wimmer, Filip Hilgert
IPIS and Fatal Transactions, 28 November, 2011
 Bisie. A one-year snapshot of the DRC’s principal cassiterite mine

So to summarize: The electronics companies stopped buying the minerals, thus imposing a de facto embargo.  The embargo has led to a precipitous drop in mineral exports, and driven the remainder of the trade underground. While some army units have left Bisie, other units have strengthened their control over other portions of it.  Elsewhere, militia groups moved back in as soon as the army withdrew. While armed groups may, on the whole, be making less money than they used to from minerals, the embargo has deprived miners of their livelihoods, increased smuggling, and thrown a wrench into the various government and industry-led due-diligence initiatives that were in place and trying to move the issue forward. 

If that's the advocates' primary example of success, I'd hate to see what their idea of failure is.

1502: A Better Way

Two civil society organizations in eastern Congo have written the SEC to propose a better way of implementing Section 1502 of Dodd-Frank law. The two groups, Observatoire Gouvernance et Paix (OGP), led by Eric Kajemba, and Bureau d'Etudes Scientifiques et Techniques (BEST), led by Pere Didier de Failly, submitted their letter on December 26.

Briefly, they argue that the problem with the legislation as it now stands is that there are no mechanisms  in place to determine which minerals are "conflict-free." As a result, companies had little choice but to instruct smelters to stop accepting mineral shipments from the region. A better way to harness some of the benefits of 1502 is to put the mechanisms in place first, so that the legitimate mineral trade has a chance to grow and gradually crowd out the illegal trade.

In their letter, they:
(i) describe the current impact of § 1502 of the Dodd-Frank Act on mining communities in eastern DRC;
(ii) outline the mechanisms necessary for the traceability and due diligence of conflict minerals;
(iii) recommend a phased approach for implementing § 1502; and
(iv) encourage the Commission to undertake a more comprehensive cost-benefit analysis before promulgating its final rule, in part by studying the law’s impact on local communities.

I think their proposal is a far more thoughtful way of proceeding. It is in keeping with the consensus of informed local opinion. It harnesses the potential benefits of 1502 without accelerating the harm it has caused.

I suspect that the perspective of two little ngos in eastern Congo won't count for all that much in the SEC's deliberation, but one can always hope. If you believe it represents a wiser course, please write a letter of support to the SEC at this address.

Have Global Witness and Enough Brought Kwashiorkor to Central Africa?

Wikipedia Photo of Children
suffering from Kwahsiorkor

Imagine that your stated goal is to advocate for patients suffering from a terrible, debilitating disease, and that a new drug comes along that promises to alleviate many of the worst symptoms of this disease. Now imagine that the expense and difficulty of producing the drug, coupled with the fact that the disease itself is rare and little known, make it hard to get anyone interested in manufacturing the drug and putting it in the FDA pipeline. Imagine, nevertheless, that you find a company willing to risk producing the drug and succeed in persuading the relevant decision-makers to put it on the fast track for approval.

Now imagine that reports start filtering in from clinics where patients are being treated experimentally with the drug. The reports, at best, are mixed. At worst, they suggest that the drug may be truly harmful.

What do you do?

Do you redouble your efforts to get the drug approved? Mobilize the public to lobby elected officials by emphasizing the horrors of the disease and demanding that the government take action? Blame sensationalist media for playing up negative reports? Dismiss accounts of the drug's ill-effects as "temporary setbacks" or "inevitable side-effects"? Do you hold conferences in prestigious venues where only one side of the issue gets discussed? Plant stories in friendly media casting dissenting voices as shills rather than patient-advocates? Cherry pick a couple of patients to act as spokesmen? And if all else fails, do you rely on that old rhetorical standby, that the drug was never meant to be a "panacea"?

Or do you take a step back and revisit the research? Do you spend a little bit of the money you have on hand to make sure that you've got it right? Do you hire a few of the top specialists to conduct an independent evaluation? Do you make sure that you aren't breaking the physician's first commandment--to do no harm?

The analogy to the conflict minerals campaign isn't perfect of course. There is no accepted methodology for evaluating human rights advocacy. Nor is there any independent agency tasked with evaluating human rights policy initiatives. Nor, finally, is there any established forum for bringing the voices of those affected by the policy into the discussion. On all of these matters, we rely, traditionally, on the wisdom and good sense of advocacy groups, and trust that they speak for the people whose interests they claim to represent. And precisely for that reason, advocates should act with an abundance of caution, making sure that the work they do meets with the approval and support of the local population, Above all, advocates should cause as little harm as possible, and no more than is absolutely necessary.

Which is why I've been so astonished and saddened by the reaction of Global Witness and the Enough Project to news that their campaign is causing severe unintended harm to the people of eastern Congo. Many of the most important questions about the benefits and harms of the conflict minerals campaign are wholly empirical. I've outlined them here. Answers can be gathered by a small team of qualified social scientists in a matter of weeks, not months, at an expense that ranges in the tens and not the hundreds of thousands of dollars. But even as one after another independent scholar or human rights group comes out with a report alleging that the campaign has caused people irremediable harm, the advocacy groups have chosen to respond as if the truth of the matter could be settled by winning a public relations campaign.

I write on Christmas Day with real anger. I have just received independent confirmation that children in two mining communities are suffering from the protein malnutrition disease kwashiorkor as a direct result of the embargo on Congolese minerals brought about by the conflict minerals campaign. This must be a historic first: Never in the history of human rights advocacy have advocacy groups, with nothing but the best of intentions, brought so much predictable suffering to the people they purport to defend. And never before have they then blithely denied that anything had gone awry, despite mounting evidence to the contrary.

So Merry Christmas Global Witness! Merry Christmas, Enough Project! Congratulations on all your good works. And may you spare an idle thought, this holiday season, for the people whose lives you have so carelessly smashed up.

Headline of the Day

No End to the Tears

Analysis: Congo set to remain world's worst nation

--The BBC, calling it like they see it